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AN ORDINANCE TO PROVIDE FOR THE PUBLIC HEALTH, SAFETY, AND
WELFARE OF THE PEOPLE OF THE CITY OF FAIRHOPE, FAIRHOPE
ALABAMA BY REQUIRING RIGHT-OF-WAY CONSTRUCTION AND
ADMINISTRATION
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAIRHOPE,
ALABAMA, as follows:
Section 1: Declaration of findings and purpose; scope.
(a) Title. This body of regulations shall be known as the "City of Fairhope Right -of -
Way Construction and Administration Ordinance."
(b) Findings and purpose.
(1) In order to provide for the health, safety and well being of its citizens, as
well as to ensure the structural integrity of its streets, the City strives to
keep its rights -of -way in a state of good repair and free from unnecessary
encumbrances.
(2) The City holds the rights -of -way within its geographical boundaries as an
asset in trust for its citizens. The City and other public entities have
invested millions of dollars in public funds to build and maintain the rights -
of -way.
(3) The City possesses the authority to manage and control its rights -of -way
and to enact reasonable regulations in furtherance thereof.
(4) The proliferation of entities that have been licensed by the states and the
potential for additional entities having the need to occupy rights -of -way
necessitates the modernization of the City's regulations used to control
the placement, construction and maintenance of Facilities owned by
existing and potential rights -of -way users.
(5) In response to the foregoing facts, the city council of the City has adopted
this Article relating to rights -of -way construction and administration. This
Article imposes reasonable regulations on the placement and
maintenance of Facilities currently within its rights -of -way or to be placed
therein at some future time.
(6) The regulations embodied herein have been made as broad as possible
to serve as standards of quality and to maintain the necessary uniformity
in the utilization of the public traffic corridors.
(7) The Permit Fees imposed by Appendix A of this Article are adopted
pursuant to the City's police power. The purpose of the Permit Fees is to
enable the City to recover its costs of administration and enforcement of
this ordinance.
(c) Easements not impaired. Nothing in this Article is intended to impair the legal
obligation of any contract, franchise, or easement previously granted by the City.
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(d) Not in lieu of franchise. Compliance with the permitting requirements of this
Article shall not excuse any Person from complying with all other requirements of
law, including holding a valid franchise from the City.
(e) Area of jurisdiction. This Article shall apply to all land within the corporate limits of
the City as such corporate limits exist or may exist in the future.
Section 2: Definitions
The following definitions apply in this Article. References hereafter to "sections"
are, unless otherwise specified, references to sections in this Article. Defined terms
remain defined terms whether or not capitalized.
Applicant means any Person requesting permission to Obstruct or Construct in a
Right-of-way.
Application means the process by which an Applicant submits a request for
permission to Obstruct or Construct in a Right-of-way.
Article means the City of Fairhope Right -of -Way Construction and Administration
Ordinance, including all appendices hereto, as the same shall be amended from
time to time.
Block shall mean that part of the Right-of-way that includes the area from the
property line to the parallel property line in width and extending from the
centerline of an intersecting street to the centerline of the next intersecting street
in length or six hundred sixty (660) feet, whichever is less.
City means the City of Fairhope, Alabama, a municipal corporation organized
under the laws of the State of Alabama.
City Building Official means the Building Official of the City, or his or her
designee.
City Cost means the direct and indirect costs borne by the City for the,
implementation, administration and enforcement of this Article.
Code means the municipal code of the City, as the same shall be amended from
time to time.
Construct means to excavate, repair, rehabilitate, maintain, and install sanitary
sewers, water mains, fire hydrants, valves, meters, manholes, service lines and
connections, gas mains, telephone and electrical conduit and their miscellaneous
service lines and connections, telecommunications facilities, cables, wires, lines,
wave guides, antennas, and other equipment or facilities, pedestals, and service
cabinets, poles, guy wires, storm drains, manholes, inlets, catch basins, irrigation
systems, driveways, Sidewalks, pavement extensions, curbs, walks, steps,
dumpsters, building canopies, balconies, overhead walkways, temporary detour
pedestrian walkways or any other improvements on, above, or under any part of
the Right-of-way; provided, however, that "construct' shall not mean installation,
repair, rehabilitation or maintenance of Facilities that do not involve Excavation of
any portion of the Right-of-way.
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Construction Bond means a bond posted to ensure proper and complete
construction and/or repair of a Facility and Restoration of the Right-of-way
performed pursuant to a Permit issued hereunder.
Construction Standards means the compilation of provisions and requirements
that provide the technical specifications and details for the construction of
Facilities in the rights -of -way titled "Construction Standards for Miscellaneous
Construction, Utility Excavation, and Right -of -Way and Pavement Restoration,"
and attached hereto as Appendix B.
Department means the City Building Department.
Emergency means a condition that poses a clear and immediate danger to life or
health, or of a significant loss of property or Utility Service and also includes
requests for service, which the Applicant deems urgent and can be classified as
a Small Project (type A) or a Small Project (type B).
Excavation shall mean any work in the surface or subsurface of the Right-of-way
including, but not limited to, opening the Right-of-way, installing, servicing,
repairing or modifying any Facilities in or under the surface or subsurface, and
restoring the surface or subsurface of the public Right-of-way.
Facilities means any tangible thing located in any Right-of-way; but shall not
include boulevard plantings or gardens planted or maintained in the Right-of-way
between a Person's property and the street edge of pavement.
Geotechnical Engineer shall mean a professional engineer experienced in soils
engineering and materials testing.
Geotechnical Engineering Company shall mean a professional engineering
company that provides soils engineering and testing services, laboratory and
field testing services, construction material testing, and possesses a certificate of
authorization from the state board of registration for professional engineers and
land surveyors.
In, when used in conjunction with "Right-of-way," means over, above, in, within,
on or under a Right-of-way.
Landscape or Landscaping means trees, shrubs and other plantings of materials
that are or may grow to a height of eighteen (18) inches or more, and irrigation
systems (in unpaved areas), in the Right-of-way.
Landscaping Ordinance means the City's tree and landscaping ordinance, which
is ordinance number 1193, as amended by ordinance number 1223, all as the
same may be amended, altered or repealed from time to time.
Major Project shall mean construction of water lines, sewer lines, gas lines,
telephone lines, fiber optic lines, electric power conduit, cable and duct, storm
drains, TV cable and related facilities; jacking, boring, pushing, and tunneling;
retrofitting existing Facilities; and any other miscellaneous major facility
construction projects that involve more than (i) one continuous Block or (ii) six
hundred sixty (660) linear feet of Right-of-way.
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Minor Project shall mean construction of miscellaneous utility service lines,
manhole installation not associated with Major Project construction, main line
point repairs and installation, miscellaneous Utility Service line repair, storm drain
and inlet repairs, vaults, irrigation systems and other miscellaneous construction
and repair projects that involve less than (i) one Block or (ii) six hundred sixty
(660) linear feet of Right-of-way.
Municipal Court means the City's municipal court system designed to enforce
laws and ordinances relating to the physical appearance of the City and the
health and safety of the public.
Municipal offense ticket (M.O.T.) means a citation issued for a violation of this
Article. A M.O.T. may require payment of a fine as defined by the municipal
offense ticket system fine schedule, as may be amended from time to time,
appearance in Municipal Court, and if determined by a judge of said court, jail or
community service.
Notice of Violation means written warning issued by the Department or the City
Building Official for any work performed in the rights -of -way that constitutes a
violation or possible violation of this Article, the conditions and requirements of
any Permit, or any other applicable law.
Obstruct means to place any tangible object in a Right-of-way so as to hinder
free and open passage over, under, or through that or any part of the Right-of-
way.
Permit Fee means money charged by the City to cover the City Costs as
provided in Appendix A.
Permittee means any Person to whom a Permit to Construct or Obstruct a Right-
of-way has been granted by the City.
Person means any natural or corporate person, business association or other
business entity including, but not limited to, a partnership, limited liability
company, a sole proprietorship, a political subdivision, a public or private agency
of any kind, a utility, a successor or assign of any of the foregoing, or any other
legal entity which has or seeks to have Facilities located in any Right-of-way.
Restoration means the process by which a constructed or obstructed Right-of-
way is restored as specified in the Construction Standards.
Right-of-way means the surface and space above and below any real property in
which the City has an interest in law or equity, whether held in fee or other estate
or interest including easements, or as a trustee for the public, including, but not
limited to any public street, boulevard, road, highway, freeway, lane, alley, court,
Sidewalk, parkway, river, tunnel, viaduct, bridge, park, or any other place, area,
or real property owned by or under the control of the City.
Right-of-way Permit or Permit means the permit, which must be obtained before
a Person may construct in or obstruct a Right-of-way as required by Section 4.
Service or Utility Service means services provided by utilities.
Sidewalk shall mean the paved pedestrian walkway between the edge of the
road and the street Right-of-way line.
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Small Project (type A) shall mean the installation of equipment cabinets, junction
boxes, terminal boxes, splice boxes, regulator stations, meters and valves in
paved areas, utility poles, guy poles and appurtenances not associated with a
major or Minor Project.
Small Project (type B) shall mean the installation, repair and routine maintenance
of miscellaneous Utility Service drop lines, overhead wires and cables, traffic
signal poles, lightpoles, traffic signs, meters, valves and other miscellaneous
construction, repair, routine maintenance and inspection, that requires minimal
Excavation or Right-of-way disruption.
Trenchless Technology means the use of directional boring, horizontal drilling
and microtunneling and other techniques in the construction of underground
portions of Facilities, which result in the least amount of disruption and damage
to a Right-of-way as possible.
Underground Facilities means all lines, cables, conduits, posts, tanks and any
other Facilities owned or operated by Persons other than the City which are
located wholly or partially underneath a Right-of-way.
Utilities means any water, sewer, gas, drainage, sprinkler or culvert pipe and any
electric power, telecommunication, signal, communication, or cable television
conduit, fiber, wire, or cable.
Utility Provider means the owner and/or operator of any utility located within the
rights -of -way.
Section 3: Right-of-way administration.
(a) Administration. The City Building Official shall be the principal City official
responsible for the management of the City's rights -of -way and the administration
of this Article. The City Building Official shall adopt and may amend from time to
time, construction standards and other rules reasonably required to carry out the
purposes of this Article. Any requirement not specifically covered by this Article
or the Construction Standards shall be determined by the City Building Official.
The City Building Official may delegate any or all of the duties hereunder.
(b) Appeal procedure. Should any Person aggrieved by a decision of the City
Building Official with respect to any matter hereunder, the superintendent of the
City and/or his designee may grant a special exception to the requirements of
this Article if a Permittee demonstrates with written evidence that:
(1) The exception will not create any threat to the public health, safety or
welfare;
(2) The Permittee demonstrates that the increased economic burden and the
potential adverse impact on the Permittee's construction schedule
resulting from the strict enforcement of the requirement actually or
effectively prohibits the ability of the Permittee to provide Utility Services
in the City; and
(3) The Permittee demonstrates that the requirement unreasonably
discriminates against the Permittee in favor of another Person.
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f
Should any Person be aggrieved by the decision of the superintendent of the City
and/or his designee, such Person may appeal by filing written notice with the
Department within fifteen (15) days from the date of such decision. The
Department shall send a copy of the appeal and all relevant documentation,
within fifteen (15) days of its receipt thereof, to the City clerk's office to be
considered by the city council at the next regularly scheduled public meeting of
the city council.
Section 4: Right-of-way Permits.
(a) Permit requirement.
(1) Except as otherwise provided in this Article, no Person may Construct or
Obstruct any Right-of-way without first having obtained one of the
following Right-of-way Permits from the Department:
a. Major Project;
b. Minor Project;
C. Small Project (type A);
d. Small Project (type B); and
e. Landscape.
(2) Right-of-way Permit. A Right-of-way Permit is a permit, which allows the
holder to Construct, Obstruct, or Landscape in that part of the Right-of-
way described in such Permit, and to hinder free and open passage over
the specified portion of the Right-of-way by placing Facilities described
therein, to the extent and for the duration specified therein. A Permit is
valid only for the dates and the area(s) of Right-of-way specified in the
Permit. No Person may Construct in or Obstruct the Right-of-way beyond
the date or dates specified in the Permit unless such Person:
a. Makes a supplementary Application for another Right-of-way
Permit before the expiration of the initial Permit; and
b. A new Permit or Permit extension is granted.
However, if no work is initiated within six (6) months of obtaining a Permit,
the Permit is rendered invalid.
(3) Emergencies. When the work must commence immediately because of
an Emergency, the Permittee shall comply with the provisions in
subsection 6(b)(1).
(4) Exemptions. No Permit shall be required for the following activities:
a. Installation of landscaping materials, which are or may grow no
more than eighteen (18) inches in height.
(5) Permit authorizing routine work. Applicants may be allowed, if approved by
the City Building Official in his sole discretion, to obtain in advance, an
annual, quarterly, or semi-annual Permit for Minor Projects outside
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roadway limits and some Small Projects that involve minimal Excavation. Permit
Fees shall be calculated as an estimate of similar work conducted over the past
twelve (12) months. In the event the actual work performed by any such Permit
holder during the time period covered by such Permit exceeds the amount
estimated, such Permit holder shall pay to the City the balance due for such
Permit Fees incurred within thirty (30) days of the expiration of the applicable
Permit.
(b) Permit Applications. Application for a Permit is made to the City Building Official.
(1) All Permit Applications shall contain and will be considered complete only
upon compliance with the requirements of the Construction Standards, as
appropriate.
(2) Tree and landscaping requirements of this Article shall be administered
and enforced by the City's horticulturalist and/or his or her designee in
cooperation with the City Building Official and/or his or her designee.
(c) Issuance of Permit, conditions.
(1) If the City Building Official determines that the Applicant has satisfied the
requirements of this Article, the City Building Official shall issue a Permit.
If the City Building Official determines that the Applicant has not satisfied
the requirements of this Article, the City Building Official shall issue
notification of and reason for denial.
(2) The City Building Official may impose reasonable conditions upon the
issuance of the Permit and the performance of the Applicant thereunder
in order to protect the public health, safety and welfare, to insure the
structural integrity of the Right-of-way, to protect the property and safety
of other users of the Right-of-way, and to minimize the disruption and
inconvenience to the traveling public, including notification to owners of
property along the affected portion of the Right-of-way.
(d) Permit Fees.
(1) Permit Fee. Permit Fees shall be established by the city council upon
recommendation of the City Building Official. Said fees shall be in an
amount sufficient to recover the following costs:
a. The City Cost; and
b. The cost for Obstructing the Right-of-way, including lost parking
meter revenue, costs associated with traffic management that
result from street obstruction, lost tax revenues resulting from
streets blocked and as an encouragement to minimize costs and
to encourage timely, efficient use of the Right-of-way.
The current schedule of Permit Fees is set forth in Appendix A to this
Article. All changes in the fee schedule shall be approved by the city
council.
(2) Payment of Permit Fees. No Permit shall be issued without payment of
the applicable Permit Fees.
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(3) Nonrefundable fees. All Permit Fees are nonrefundable.
(4) Joint Applications. Applicants are encouraged to make joint Application
for Permits to Construct or Obstruct the Right-of-way at the same place
and time.
(5) Exemptions. Notwithstanding anything contained in this Article to the
contrary, the City and its departments shall be exempt from and shall not
have to pay any Permit Fees required by this Article.
Section 5: Construction; Restoration.
(a) Compliance with Construction Standards. All construction or maintenance of
Facilities shall be in accordance with this Article, including the Construction
Standards, such other conditions imposed in connection with the issuance of the
Permit by the City Building Official under Section 4(c), and other applicable law.
(b) Location of Facilities. The City Building Official shall have the power to prohibit or
limit the placement of new or additional Facilities within the Right-of-way if there
is insufficient space to accommodate all of the requests of Permittees to occupy
and use the Right-of-way. In making such decisions, the City Building Official
shall strive to the extent possible to accommodate all existing and potential users
of the Right-of-way, but shall be guided primarily by considerations of the public
interest, the public's needs for the particular Utility Service, the condition of the
Right-of-way, the protection of existing Facilities in the Right-of-way, and future
City plans for public improvements and development projects which have been
determined to be in the public interest.
(c) Least disruptive technology. Applicants are encouraged to perform construction
and maintenance of Facilities in a manner resulting in the least amount of
damage and disruption of the Right-of-way. Applicants will be required to use
Trenchless Technology for major and minor construction projects within roadway
limits, in arterial and other high volume streets and in streets constructed or
resurfaced within the last five (5) years, unless otherwise approved by the City
Building Official and such approval shall not be unreasonably withheld. The City
Building Official may require Trenchless Technology in other locations, where
extreme circumstances prevent or make open cut methods impractical.
Applicants may use either the open cut method or Trenchless Technology for
Major and Minor Projects outside roadway limits.
(d) Right-of-way Restoration.
(1) The work to be done under the Permit, and the Restoration of the Right-
of-way as required herein, must be completed within the dates specified
in the Permit. In addition to its own work, the Permittee must restore the
general area of the work, including all disturbed Landscaping materials
and the areas that are the subject of the applicable Permit, including the
paving and its foundations, per the Construction Standards.
(2) The Permittee shall perform all work in the Right-of-way according to the
Construction Standards and with the materials specified by the City
Building Official.
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(3) The Permittee shall guarantee its Restoration work for twenty-four (24)
months following its completion. During this twenty-four month period, the
Permittee shall, upon notification from the City Building Official, correct all
Restoration work to the extent necessary using the method required by
the City Building Official. Said work shall be completed within the time
specified by the City Building Official.
(e) Other obligations.
(1) Obtaining a Permit does not relieve Permittee of its duty to obtain all other
necessary permits, licenses, and authority and to pay all fees required by
any other city, county, state, or federal rules, laws or regulations.
(2) A Permittee shall comply with all requirements of local, state and federal
laws, including a franchise duly adopted by the city council.
(3) Contact shall be made to the Alabama one call excavation notice system
in accordance with Chapter 15 of Title 37 of the Alabama Code (1975), as
the same may be amended or replaced from time to time.
(4) A Permittee shall perform all work in conformance with all applicable
codes and established rules and regulations, and is responsible for all
work done in the Right-of-way pursuant to its Permit, regardless of who
performs the work.
(5) A Permittee as well as any Person Constructing in or Excavating a Right-
of-way shall be responsible for all Facilities placed in the Right-of-way
and any damage to the Right-of-way that results from such Facilities,
regardless of whether such damage occurs during the Construction or
Excavation or at any time thereafter.
(5) Except in the case of an Emergency, and with the approval of the City
Building Official, no Right-of-way Obstruction or Excavation may be
performed when seasonally prohibited or when conditions are
unreasonable for such work.
(6) A Permittee shall not so obstruct a Right-of-way that the natural, free and
clear passage of water through the gutters or other waterways shall be
interfered with.
(7) Private vehicles not owned by or under contract to Permittee may not be
parked within or adjacent to an area that is the subject of the applicable
Permit.
Section 6: Enforcement of Permit obligation.
(a) Denial of Permit.
(1) Mandatory denial. Except in the case of an Emergency, no Permit will be
granted:
a. To any Person who has failed to comply with the requirements of
this Article;
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b. To any Person who is delinquent in paying a debt owed to the
City;
C. If, in the discretion of the City Building Official, the issuance of a
Permit for the particular date and/or time would cause a conflict or
interfere with an exhibition, celebration, festival, or any other
event. The City Building Official, in exercising this discretion, shall
be guided by the safety and convenience of ordinary travel of the
public over the Right-of-way, and by considerations relating to the
public health, safety and welfare; or
d. To any Person who does not hold a business license issued by
the City for the business he intends to or is conducting in the City.
(2) Permissive denial. The City Building Official may deny an Application for
a Permit in order to protect the public health, safety and welfare, to
prevent interference with the safety and convenience of ordinary travel
over the Right-of-way, or when necessary to protect the Right-of-way and
its users. In denying an Application for a Permit, the City Building Official
may consider one (1) or more of the following factors:
a. The extent to which Right-of-way space where the Permit is
sought is available;
b. The competing demands for the particular space in the Right-of-
way;
C. The availability of other locations in the Right-of-way or in other
Rights -of -way for the Facilities of the particular Person;
d. The applicability of ordinances or other regulations to the Right-of-
way that affect the location of Facilities in the Right-of-way;
e. The degree of compliance of the Applicant with the terms and
conditions of its franchise, if any, this Article, and other applicable
ordinances and regulations;
The degree of disruption to surrounding neighborhoods and
businesses that will result from the use of that part of the Right-of-
way;
g. The condition and age of the Right-of-way and whether and when
it is scheduled for total or partial construction;
The failure to properly perform Restoration of the Right-of-way in
accordance with the terms and conditions of this Article; and
h. The balancing of the costs of disruption to the public and damage
to the Right-of-way against the benefits to that part of the public
served by the expansion into additional parts of the Right-of-way.
(b) Work done without a Permit.
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(1) Emergency situations. Each Permittee shall notify the City Building
Official in writing of any event regarding its Facilities, which it considers to
be an Emergency by the next business day following such Emergency.
The Applicant may proceed to take whatever actions are reasonably
necessary in order to respond to the Emergency. Within two (2) business
days after the occurrence of the Emergency, the Applicant shall apply for
the necessary permits, pay the fees associated therewith and fulfill the
rest of the requirements necessary to bring itself into compliance with this
Article for the actions it took in response to the Emergency.
(2) In the event that the City Building Official becomes aware of an
Emergency regarding a Utility Provider's Facilities, the City Building
Official may, but shall not be obligated to, attempt to contact the local
representative of each Utility Provider affected or potentially affected by
the Emergency, who must comply with subsection (b)(1) of this section. In
any event, the City Building Official may take whatever action deemed
necessary by the City Building Official in order to respond to the
Emergency.
(3) Non -Emergency situations. Except in the case of an Emergency, any
Person who Obstructs or Excavates a Right-of-way without a Permit (i)
must subsequently obtain a Permit, (ii) pay double the normal fee for said
Permit, (iii) pay double all the other fees required by the Code, if any, (iv)
is subject to the issuance of a Notice of Violation and/or a Municipal
Offense Ticket, (v) deposit with the City Building Official the fees
necessary to correct any damage to the Right-of-way and (vi) comply with
all of the requirements of this Article.
(c) Enforcement.
(1) Permittees hold Permits issued pursuant to this Article as a privilege and
not as a right.
(2) If the City Building Official determines that the Permittee has violated a
material term or condition of the Permit, this Article, the Code, or any other
applicable statute, ordinance, rule or regulation, the City Building Official shall
issue a Notice of Violation to the Permittee to remedy such violation. The
demand shall state that continued violations may be cause for the issuance of
a stop work order and/or issuance of a Municipal Offense Ticket. Further, any
such violation will allow the City Building Official, at his or her discretion, to
place additional or revised conditions on the Permit.
(3) A material violation by a Permittee shall include, but shall not be limited
to, the following:
a. The violation of any material provision of the Permit;
b. An evasion or attempt to evade any material provision of the
Permit;
C. The perpetration or attempt to perpetrate any fraud or deceit upon
the City or its citizens;
d. Any material misrepresentation of fact in the Application for a
Permit;
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e. The failure to maintain the required bonds and/or insurance;
f. The failure to complete the work in a timely manner; or
g. The failure to correct any condition described on a Notice of
Violation issued pursuant hereto.
Section 7: Indemnification and liability
(a) City does not accept liability. By reason of the grant of a Permit, the City does not
assume any liability:
(1) For injuries to persons, damage to property, or loss of service claims by
any third party relating to or otherwise arising out of any work performed
pursuant to a Permit; or
(2) For claims or penalties of any sort resulting from the installation,
presence, maintenance, or operation of Facilities by any Permittee or
Utility Providers or activities of any Permittee or Utility Providers.
(b) Indemnification. By accepting a Permit, a Permittee shall defend, indemnify and
hold the City harmless from all costs (including reasonable attorney's fees),
liabilities, and claims for damages of any kind arising out of the construction,
presence, installation, maintenance, repair or operation of the Permittee's
Facilities, or out of any activity undertaken in or near a Right-of-way, whether any
act or omission complained of is authorized, allowed, or prohibited by the
applicable Permit. By acceptance of a Permit, a Permittee further agrees that it
will neither bring nor cause to be brought any action, suit or other proceeding
claiming damages or seeking any other relief against the City for any claim nor
for any award arising out of the presence, installation, maintenance or operation
of its Facilities or any activity undertaken in or near a Right-of-way, whether the
act or omission complained of is authorized, allowed or prohibited by a Permit.
Notwithstanding the foregoing, the City shall not be entitled to indemnification for
its gross negligence of willful misconduct. This section is not, as to third parties,
a waiver of any defense or immunity otherwise available to the Permittee or to
the City; and the Permittee, in defending any action on behalf of the City, shall be
entitled to assert in any action every defense or immunity that the City could
assert in its own behalf.
(c) Exceptions. The provisions of subsection (b) of this section shall not apply to a
Permittee that has, as of the effective date of this Article, a valid franchise duly
granted by the City, and said franchise requires the Permittee to hold harmless
the City for damages occasioned by the presence, operations or maintenance of
the Permittee's Facilities. This exemption shall not apply where said franchise
does not afford the City at least the level of protection stated in subsection (b) of
this section unless the Permittee agrees to provide the same or greater level of
protection to the City.
Section 8: Enforcement.
Penalties. Any Person who violates any of the provisions of this Article shall, upon
conviction, be punished in accordance with chapter 10 of the Code.
Right of Way Ordinance 6-27-05.doc 12
Ordinance No. 1254
Right -of -Way Ordinance
Page 13
Section 9: General provisions.
(a) Non-exclusive remedy. The remedies provided in this Article are not exclusive or
in lieu of other rights and remedies that the City may have at law or in equity. The
City is hereby authorized to seek legal and equitable relief for actual or
threatened injury to the Right-of-way, including damages to the Right-of-way,
whether caused by a violation of any of the provisions of this Article or any other
applicable law.
(b) Severability. If any section, subsection, sentence, clause, phrase, or portion of
this Article is for any reason held invalid or unconstitutional by any court or
administrative agency of competent jurisdiction, such portion shall be deemed a
separate, distinct, and independent provision and such holding shall not affect
the validity of the remaining portions thereof. If a regulatory body or a court of
competent jurisdiction should determine by a final, non -appealable order that any
Permit or right or any portion of this Article is illegal or unenforceable, then any
such Permit or right granted or deemed to exist hereunder shall be considered as
a Permit with a mutual right in either party to terminate without cause upon giving
sixty (60) days written notice to the other. The requirements and conditions of
such a revocable Permit shall be the same requirements and conditions as set
forth in the Permit or right, respectively, except for conditions relating to the term
of the Permit and the right of termination. If a Permit or right shall be considered
a revocable Permit as provided herein, the Permittee must acknowledge the
authority of the city council to issue such revocable Permit and the power to
revoke it.
(c) Reservation of regulatory and police powers. The City by the granting of a
Permit, does not surrender or to any extent lose, waive, impair, or lessen the
lawful powers and rights, which it has now or may be hereafter vested in the City
under the Constitution and statutes of the State of Alabama to regulate the use of
the Right-of-way by the Permittee or to charge reasonable compensation for
such use; and the Permittee by its acceptance of a Permit must agree that all
lawful powers and rights, regulatory power, or police power, or otherwise, as the
same may be amended from time to time and as are vested in or reserved to the
City, shall be in full force and effect and subject to the exercise thereof by the
City at any time. A Permittee or Applicant is deemed to acknowledge that its
rights are subject to the ability of the City to adopt and enforce, pursuant to its
regulatory and police powers, general ordinances necessary to the safety and
welfare of the public and is deemed to agree to comply with all applicable general
laws and ordinances enacted by the City pursuant to such powers.
(c) Conflict. Any conflict between the provisions of a Permit and any other present or
future lawful exercise of the City's regulatory or police powers shall be resolved in
favor of the latter.
(d) Severability Clause. If any section or provision of this ordinance, be declared
invalid or unconstitutional by judgment or decree shall not affect any other
section or provision.
Right of Way Ordinance 6-27-05.doc 13
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Ordinance No. 1254
Right -of -Way Ordinance
Page 14
(e) Effective Date. This Article shall not become effective October 1, 2005, and after its
publication of notice of the adoption as required by Alabama State law.
Approved and Adopted this the 27th Day of June , 2005.
Attest:
Geniece W. Johnson, City glerZ reasurer
Right of Way Ordinance 6-27-05.doc 14
APPENDIX A
SCHEDULE OF FEES
RIGHTS OF WAY AND EXCAVATION PERMIT FEES
Description
Fee
Longitudinal and transverse Excavation for Major Projects (paved
$0.50 per L.F. (minimum fee
areas)
$100.00
Longitudinal and transverse Excavation for Major Projects (unpaved
0.10 per L.F. (minimum fee
areas)
$25.00
Longitudinal and transverse Excavation for point repairs, service lines,
$15.00 per S.Y.
storm drains, manholes, etc.(paved areas
Excavation for utility construction, point repairs (unpaved areas
$6.00 per S.Y.
Boring and jacking operations, tunneling, retrofitting of existing utility
0.10 per L.F. (minimum fee
lines, pipe lining, etc.
$50.00 per Block
Irrigation systems (paved areas)
0.40 per L.F. (minimum fee
$25.00
Utility poles new installation including u and anchor
$2.00 perpole*
Communication towers new installation
$25.00 per tower
Terminal boxes, junction boxes, equipment cabinets, splice boxes,
$5.00 each
regulator stations, meters and valves in paved areas, vaults
Sidewalk, driveway, curb, gutter (new construction, replacement and
repair):
$10.00
0 sq. yds. to 2 sq. yds.
$30.00
2 sq. yds. to 25 sq. yds.
$40.00
25 sq. yds. to 100 sq. yds.
$50.00
100 sq. yds. to 500 sq. yds.
$60.00
500 sq. yds. or greater
Steps
$50.00 per location
Monitoring wells
$50.00 each
Temporary edestrian walkway
$50.00 per location
Balconies, canopies
$10.00 per location
Landscaping
$5.00 per location
* No fee will be required for replacing existing poles of similar size or routine
inspection.
***ALL FEES ARE NONREFUNDABLE***
Right of Way Ordinance 6-27-05.doc 15
APPENDIX B
CONSTRUCTION STANDARDS FOR MISCELLANEOUS CONSTRUCTION,
UTILITY EXCAVATION, AND RIGHT -OF WAY
AND PAVEMENT RESTORATION
Section 1. Construction plans submittal requirements within public rights -
of -way and easements.
1.1. Major Projects.
A) Major Projects within roadway limits: Applicants for Right-of-way Permits
for Major Projects, any portion of which is to be constructed within a
roadway, shall submit three (3) sets of construction plans and
specifications, including the following information, for review and
approval:
1) The location of all visible topographic features affected by the
project within the Right-of-way.
2) Complete plan and profile sheets indicating the horizontal and
vertical location of all components of the proposed project and
other related information including, but not limited to, pipe and
manhole flow line elevations, type and size pipe to be used, if any,
and other related structures, profile and other elevations
necessary for roadway and Right-of-way Restoration.
3) The design details of the proposed construction and pavement
and Right-of-way Restoration will be required for gravity flow
systems including sanitary sewer, storm drain and related
projects.
4) A plan indicating the location of the proposed project with respect
to the centerline, edge of road, and Right-of-way, tie-in to nearest
street intersection, components and type material used, and
dimensions and depth of the proposed installation will be required
for nongravity flow systems including water distribution systems,
gas systems, communication, cable TV and electric power
distribution systems, unless otherwise authorized by the City
Building Official.
5) An erosion control plans and best management practices
complying with provisions of the City's stormwater management
ordinance.
6) A safety plan to indicate methods to be used to protect the general
public from injury, including the proposed use of barricades, signs,
lights, fencing and other barriers.
7) A traffic control plan complying with all the provisions of the
Federal Manual on Uniform Traffic Control Devices, current
edition, shall be submitted.
8) A Landscape plan complying with the Landscaping Ordinance.
9) Complete as -built construction plans of the construction project
shall be submitted to the City Building Official, after final
inspection of the project. The as -built plans shall be submitted in
Right of Way Ordinance 6-27-05.doc 16
hard copy medium and CAD files in DXF format, projected in State
Plane Coordinate System Alabama West NAD 83 (North
American Datum 1983).
B) Major Projects outside roadway limits: Applicants for Permits for Major
Projects, all of which is to be constructed outside of a roadway, shall
submit three (3) sets of construction plans and specifications, including
the following information for review and approval:
1) The location of all visible topographic features within the Right-of-
way that will be impacted by the proposed project.
2) Complete plan and profile sheets indicating the horizontal and
vertical location of all components of the proposed project and
other related information including, but not limited to, pipe and
manhole flow line elevations, type and size pipe to be used, if any,
and other related structures, profile and other elevations
necessary for Right-of-way Restoration.
3) The design details of the proposed construction, including the
Right-of-way Restoration will be required for gravity flow systems
including sanitary sewer, storm drain and related projects.
4) A plan indicating the location of the proposed project with respect
to the centerline, edge of road, and Right-of-way, tie-in to nearest
street intersection, components and type material used, and
dimensions and depth of the proposed installation will be required
for nongravity flow systems including water distribution systems,
gas systems, communication, cable TV and electric power
distribution systems, unless otherwise authorized by the City
Building Official.
5) An erosion control plan with best management practices
complying with provisions of the City's stormwater management
ordinance.
6) A safety plan to indicate methods to be used to protect the general
public from injury, including the proposed use of barricades, signs,
lights, fencing and other barriers.
7) A traffic control plan complying with all the provisions of the
Manual on Uniform Traffic Control Devices, current edition, shall
be submitted, if any roadway traffic is affected.
8) A Landscape plan complying with the Landscaping Ordinance.
9) Complete as -built construction plans of the construction project
shall be submitted to the City Building Official, after final
inspection of the project. The as -built plans shall be submitted in
hard copy medium and CAD files in DXF format, projected in State
Plane Coordinate System Alabama West NAD 83 (North
American Datum 1983).
1.2. Minor Projects.
A) Minor Projects within roadway limits. Applicants for Permits for Minor
Projects, any portion of which is to be constructed within a roadway, shall
submit a plat of the proposed project including the following information:
Right of Way Ordinance 6-27-05.doc 17
1) A plat prepared at a scale acceptable to the City Building Official
detailing, at a minimum, the location of the Project with respect to
the centerline, edge of roadway, and Right-of-way, tie-in to
nearest subdivision lot corner or street intersection, components
and type material used for the project, and dimensions and depth
of proposed installation.
2) An erosion control plan with best management practices
complying with the provisions of the City's stormwater
management ordinance.
3) A safety plan indicating the methods to be used to protect the
general public from injury, and including the proposed use of
barricades, signs, lights, fencing and other barriers.
4) A traffic control plan complying with all the provisions of the
Manual on Uniform Traffic Control Devices, current edition, shall
be submitted, if any roadway traffic is affected;
5) A Landscape plan complying with the Landscaping Ordinance.
6) Complete as -built construction plans of the construction project
shall be submitted to the City Building Official, after final
inspection of the project. As built plans shall be submitted in hard
copy medium and CAD files in DXF format, projected in State
Plane Coordinate System Alabama West NAD 83 (North
American Datum 1983).
B) Minor Projects outside roadway limits. Applicants for Right-of-way Permits
for Minor Projects, all of which is to be constructed outside of a roadway,
shall submit a plat of the proposed project including the following
information:
1) A plat prepared at a scale acceptable to the City Building Official
detailing, at a minimum, the location of the Project with respect to
the centerline, edge of the roadway, and Right-of-way, tie-in to
nearest subdivision lot corner or street intersection, components
and type material used, dimensions and depth of proposed
Excavation.
2) An erosion control plan with best management practices
complying with the provisions of the City's stormwater
management ordinance.
3) A safety plan indicating the methods to be used to protect the
general public from injury, including the proposed use of
barricades, signs, lights, fencing and other barriers.
4) A traffic control plan complying with all the provisions of the
Manual on Uniform Traffic Control Devices, current edition, shall
be submitted, if any impact on traffic movement is involved.
5) A Landscape plan complying with the Landscaping Ordinance.
6) Complete as -built construction plans of the construction project
shall be submitted to the City Building Official, after final
inspection of the project. The as -built plans shall be submitted in
hard copy medium and CAD files in DXF format, projected in State
Right of Way Ordinance 6-27-05.doc 18
Plane Coordinate System Alabama West NAD 83 (North
American Datum 1983).
1.3. Small Projects. The Applicant will not be required to submit a construction plan or
plat for Small Projects. However, a location sketch will be required for approval of
Small Projects (type A). Any pavement or areas in the Right-of-way that are
disturbed shall be restored in conformance with sections 6 and 7 of these
Construction Standards.
Section 2. Bond and Guaranty requirements.
2.1. Construction Bond for Major Projects. For all Major Projects, the Applicant shall
be required to provide an irrevocable, unconditional letter of credit or
Construction Bond to guarantee the proper construction to be performed under
the Permit and completion of Right-of-way Restoration as well as guaranteeing
the warranty obligations of the Applicant required hereunder. The issuer of any
such letter of credit or bond must be reasonably acceptable to the City Building
Official. The amount of the bond shall be two and one-half times the estimated
cost of the required Right-of-way Restoration, which estimated cost shall be
provided by the Permittee and approved by the City Building Official.
2.2. Construction Bond for Minor and Small Projects. Except as provided in Section
2.3 hereof, for all minor and Small Projects, the Applicant shall be required to
provide an irrevocable, unconditional letter of credit or Construction Bond to
guarantee the proper construction to be performed under the Permit and
completion of Right-of-way Restoration. The issuer of any such letter of credit or
bond must be reasonably acceptable to the City Building Official. The amount of
the bond shall be two and one-half times the estimated cost of the required
Right-of-way Restoration, which estimated cost shall be provided by the
Permittee and approved by the City Building Official.
2.3 Blanket Bonds. Notwithstanding anything contained in this Section 2 to the
contrary, any Permittee may, at its option, obtain a blanket Construction Bond
guaranteeing the proper construction to be performed under the one or more
Permits and completion of Right-of-way Restoration for all Right-of-way work
performed by such Permittee on an ongoing basis if such bond is issued by an
entity reasonably acceptable to the City Building Official and in an amount to be
determined by the City Building Official in his or her sole discretion.
2.4. No disturbance of paved area. A Construction Bond will not be required for
Small Projects if no portion of the paved Right-of-way is disturbed by the project.
2.5. Guaranty. If any Applicant for a Permit is not the Utility Provider with respect to
the Facilities to be constructed pursuant to the Permit sought, such Utility
Provider shall guarantee all work performed by such Applicant and such
Applicant's performance of all requirements and obligations as a Permittee
hereunder. No Permit shall be issued by the City Building Official until such
Utility Provider shall have provided a guaranty acceptable in form and substance
to the City Building Official.
2.6. Exemption. The City and its departments shall be exempt from the requirements
of this Section 2.
Section 3. Notification procedures for Major and Minor Projects.
3.1. Except for emergencies, the following notification procedures will be followed for
major and Minor Projects, prior to the commencement of any construction
activities:
Right of Way Ordinance 6-27-05.doc 19
A) The one call line location center will be notified in accordance with
Chapter 15 of Title 37 of the Alabama Code (1975), as the same may be
amended from time to time. The location of all utilities shall be verified
before commencing construction.
B) The City Building Official shall be notified forty-eight (48) hours prior to
commencing any construction activity involving Major and Minor Projects
within roadway limits.
C) The City police department shall be notified forty-eight (48) hours prior to
the closure of any roadway or interruption in traffic flow.
D) A written notice shall be distributed to each occupant of premises located
adjacent to the project site five (5) days prior to commencing construction
activity relating to Major and Minor Projects, which notice shall contain, at
a minimum, the dates during which the Permittee anticipates that work
will be performed and the name, address and phone number of a
representative of the Permittee who said occupants can contact in the
case of questions or complaints concerning such construction activity.
Section 4. Inspection.
4.1. When the work under any Permit for Major and Minor Projects hereunder is
completed, the Permittee shall notify the City Building Official.
4.2. Permittee shall make the work site available to the City Building Official or his
authorized representative and to all others as authorized by law for inspection at
all reasonable times during the execution and upon completion of the work.
4.3. At the time of inspection, the City Building Official or his authorized
representative may order the immediate cessation of any work, which poses a
serious threat to the life, health, safety, or well being of the public.
4.4. The City Building Official or his authorized representative may, at any time, issue
a Notice of Violation to the Permittee. The Notice of Violation shall state that
failure to correct the violation will be cause for issuance of a Municipal Offense
Ticket and/or stop work order.
4.5. Within forty-eight (48) hours of receiving a Notice of Violation, a Permittee shall
contact the City Building Official with a plan, acceptable to the City Building
Official, for the correction of the violation referenced in the Notice of Violation.
Permittee's failure to so contact the City Building Official, or the Permittee's
failure to submit an acceptable plan, or the Permittee's failure to reasonably
implement the approved plan, shall be cause for immediate issuance of a stop
work order and issuance of a Municipal Offense Ticket.
Section 5. Trench excavation and general underground construction
requirements for Major and Minor Projects.
5.1. Excavation.
A) Trench excavation methods shall be used to keep the width of the trench
to a minimum. Extra wide excavation to accommodate equipment will not
be permitted. Sheeting, bracing and other trench restraint system will be
used to keep trench width to a minimum and to comply with OSHA
regulations.
B) Hazardous materials. The Applicant will comply with all federal, state, and
local laws, regarding hazardous materials. For purposes of this section,
Right of Way Ordinance 6-27-05.doc 20
hazardous materials shall mean any material, substance or waste which
is defined as a "hazardous material' by any federal or state law and/or
which, because of its quantity, concentration, or physical or chemical
characteristics, is deemed to pose a present or potential hazard to human
health, safety or the environment.
C) Utility construction. The construction of utilities will be in conformance
with the plans, which constitute a part of the Permit.
D) Depth requirements for underground installation.
1) Within roadway limits, the minimum clear depth for open cut
installation, and jacking, boring, and pushing operations shall be
thirty-six (36) inches, unless otherwise authorized or directed by
the City Building Official.
2) Outside roadway limits and driveways, the minimum clear depth
for open cut installation and jacking, boring, and pushing
operations shall be twenty-four (24) inches, unless otherwise
authorized or directed by the City Building Official.
E) Housekeeping and removal of excavated material. The Applicant shall
keep the area surrounding the Excavation clean (including the prompt
removal of trash, loose materials or other debris).
5.2. Backfill material.
A) Backfill material for Major Projects will be select granular soil material
approved by the City Building Official. Excavated material from the trench
will not be used unless approved by the City Building Official. Material
excavated from utility poles, guy wire installation, replacing existing poles
and routine pole inspections may be used for backfill.
B) Backfill material for Minor Projects within the roadway shall be comprised
of crushed stone material up to subgrade elevation, unless otherwise
approved by the City Building Official. Backfill material for other areas will
be select granular soil material approved by the City Building Official.
C) Installation of backfill material:
1) Backfilling of the excavated area shall, in a prompt manner, follow
closely behind the installation project.
2) The backfill material shall be compacted at near optimum moisture
content in layers not exceeding six (6) inches compacted
thickness to a density of not less than ninety-five (95) percent,
unless otherwise approved by the City Building Official.
Mechanical tampers shall be used unless another method of
compaction is approved by the City Building Official. Jetting will
not be permitted. The backfill material shall be installed uniformly
and brought up evenly in layers for the full length of the trench.
D) Geotechnical testing and compaction for Major and Minor Projects:
1) Major Projects. The Permittee shall cause, at its sole cost and
expense, a Geotechnical Engineering Company to perform
compaction tests at intervals of no more than 200 feet along the
main trench line. Tests will be conducted at the installation of
service lines within these limits where directed by the City Building
Right of Way Ordinance 6-27-05.doc 21
Official. The Geotechnical Engineering Company will perform tests
at as many levels of backfill installation and at such lateral
locations as are necessary to enable the Geotechnical
Engineering Company to certify that compaction requirements
have been achieved. Documented test reports will be prepared
and submitted to the City Building Official before any Right-of-way
Restoration proceeds.
2) Minor Projects. Compaction tests may be requested for Minor
Projects at specific locations. In-house Geotechnical Engineers
may be employed by the Permittee for performing compaction
tests for Minor Projects.
5.3 Protection of Health, Safety, Etc. Every effort will be taken by the Permittee to
protect the safety, health and welfare of the general public and to insure
compliance with the safety and traffic plans submitted with the Permit
Application.
5.4 Patching. Steel plates may be required by the City Building Official in congested
or heavily traveled areas to cover open trenches. Temporary patching will be
required for any trench excavation in the roadway prior to opening the area to
traffic.
5.5 Construction Signs. For Major and Minor Projects a construction sign will be
placed adjacent to the utility construction area where traffic flow is to be
obstructed. The signs will be placed in accordance with the rules, regulations and
requirements of the Alabama Department of Transportation with respect to
highway construction signage.
Section 6. Right-of-way Restoration within roadways.
All construction procedures and materials utilized will be in compliance with
Alabama Department of Transportation Standard Specifications for Highway
Construction current edition. A Geotechnical Engineering Company will be retained by
the Utility Provider or Permittee to conduct field testing to document and certify that all
materials and compaction efforts are in compliance with Alabama Department of
Transportation Standard Specifications for Highway Construction, current edition, and
the procedures specified in the City Building Official's design details for Right-of-way
Restoration.
6.1. Major Projects.
6.1.1. Asphalt road surface.
A) Base construction.
1) In the case of a granular soil or sand clay base, the base
course of the affected lanes shall be reconstructed full
width.
2) In the case of a bituminous base or stone base, the base
course of the affected lanes may be patched with
equivalent base material if the structural integrity of the
roadway has not been affected by the project, as
determined by the Geotechnical Engineering Company.
Otherwise, the base of the affected lanes shall be
reconstructed full width.
Right of Way Ordinance 6-27-05.doc 22
B) Wearing surface. The full width of the roadway surface shall be
resurfaced within the limits of the project. Existing traffic stripping
and markings will be replaced.
6.1.2. Asphalt roadway surface overlay on existing concrete pavement.
A) Base construction. The existing concrete street may be patched
with concrete, if the structural integrity of the roadway has not
been affected by the project, as determined by the Geotechnical
Engineering Company. Otherwise, the affected panels of the
existing concrete street shall be reconstructed.
B) Wearing surface. The full width of the roadway surface shall be
resurfaced within the limits of the project. Existing traffic stripping
and markings will be replaced.
6.1.3. Concrete roadway surface.
A) Base construction. The base course of the affected lanes shall be
reconstructed full width as determined by the Geotechnical
Engineering Company.
B) Concrete pavement. The entire roadway panel sections of the
affected lanes shall be reconstructed. If the structural integrity of
the roadway has been significantly affected by the project, the City
Building Official may require the entire concrete surface, within the
project limits, to be reconstructed full width. Existing traffic
stripping and markings will be replaced.
6.1.4. Unpaved roadway surface. The entire roadway shall be surfaced with six
(6) inches of stone within project limits.
6.2. Minor Projects.
6.2.1. Asphalt roadway surface (sixteen (16) square feet or greater). For
transverse service lines and miscellaneous installation and repair projects
within excavated areas sixteen (16) square feet or greater, the entire
width of the lane disturbed will be resurfaced from a point measured five
(5) feet from the edge of the Excavation each way longitudinally along the
centerline of the roadway. If more than one (1) lane is disturbed, the
entire width of the disturbed lanes will be resurfaced. If the replacement
pavement is more than seventy (70) feet long or more than ten (10)
percent of the roadway area within a Block is affected, the entire roadway
will be resurfaced within the Block. Existing traffic stripping and markings
will be replaced.
6.2.2. Asphalt roadway surface (less than sixteen (16) square feet). For
miscellaneous construction involving excavated areas less than sixteen
(16) square feet, the area from the edge of the Excavation extending one
(1) foot outside the perimeter of the cut area will be resurfaced. If more
than one (1) lane is disturbed, the entire width of the disturbed lanes will
be resurfaced. If the replacement pavement is more than seventy (70)
feet long or more than ten (10) percent of the roadway area within a Block
is affected, the entire roadway will be resurfaced within the Block. Existing
traffic stripping and markings will be replaced.
6.2.3. Concrete roadway surface. The entire affected roadway panel sections,
including base course, will be reconstructed joint to joint. Existing traffic
stripping and markings will be replaced.
Right of Way Ordinance 6-27-05.doc 23
6.2.4. Unpaved roadway surface. The entire roadway width will be surfaced with
six (6) inches of stone throughout the excavated area.
6.3. Any pavement damage caused by any jacking, boring, pushing, tunneling,
retrofitting and/or pipe lining projects will be restored in conformance with
provisions of sections 5, 6 and 7 of these Construction Standards. Any existing
pavement damage relating to the replacement, retrofitting, or pipe lining of
damaged utilities will be restored in conformance with sections 5, 6 and 7 of
these Construction Standards.
Section 7. Right-of-way and easement Restoration outside roadway areas.
7.1. All Restoration work to be performed in the rights -of -way but outside of any
roadway area, including, but not limited to, all Restoration work to be performed
on driveways, Sidewalks, curbs, gutters, drainage systems, and Landscaped
areas, shall be performed in accordance with the terms and conditions of the
City's subdivisions regulations, as the same shall be amended from time to time,
and applicable law.
Right of Way Ordinance 6-27-05.doc 24