HomeMy WebLinkAbout07/15/2014 11 Excavation in Public Rights-of-Way; YMC Repealing Old Chapter 8.72 and Adding New Chapter 8.72BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 11.
For Meeting of: July 15, 2014
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ITEM TITLE: An Ordinance repealing existing Chapter 8.72 YMC, and
adopting new Chapter 8.72 YMC, establishing permit
procedures, administration and enforcement for excavations
in public rights-of-way
SUBMITTED BY: Mark Kunkler, Senior Assistant City Attorney
SUMMARY EXPLANATION:
Chapter 8.72 YMC sets forth procedures for issuance of permits for excavations in streets and
other public rights-of-way. For several months, city staff and members of the community,
including contractors, utility providers and other governmental agencies, have discussed the
current code and proposed amendments. The original proposal has been amended in response
to concerns from these community members and service providers.
The attached Ordinance repeals existing Chapter 8.72 YMC, and adopts new Chapter 8.72
YMC pertaining to excavations in public rights-of-way. The Ordinance is presented with the
view that the new language sets a workable benchmark for issuance of permits for excavations
within the public rights-of-way, as well as the administration and enforcement of such
provisions. The proposed Ordinance incorporates many of the changes recommended by all
parties.
Resolution: Ordinance: X
Other (Specify):
Contract: Contract Term:
Start Date: End Date:
Item Budgeted: Amount:
Funding Source/Fiscal
Impact:
Strategic Priority:
Insurance Required? No
Mail to:
Phone:
Improve the Built Environment
APPROVED FOR
SUBMITTAL:
RECOMMENDATION:
Adopt Ordinance.
City Manager
ATTACHMENTS:
Description Upload Date Type
Memo re street cut restoration '7/10/2014 Cover Memo
Legal memo on tax vs req fee 7/10/2014 Cover Memo
Ordinance 7/10/2014 Cover Memo
Street Cut Restoration - REDLINE 7/10/2014 Cover Memo
Street Cut Restoration - CLEAN 7/10/2014 Cover Memo
Original street cut memo 7/10/2014 Cover Memo
MEMORANDUM
To: Honorable Mayor and Members of the Yakima City Council
From: Tony O'Rourke, City Manager
Date: July 10, 2014
RE: Proposed street cut and restoration ordinance
On July 1, 2014, the City Council voted 4-3 to eliminate the restoration fee from the
proposed street cut ordinance. Councilwoman Adkison, voting in the majority, reported
after the meeting she made a mistake which would have reversed the City Council's
position on street cut restoration fees. To that end, Councilwoman Adkison will request
a reconsideration of this vote on July 15, 2014.
In anticipation of reversing the July 1 rejection of the street cut restoration fee, staff has
worked with the city's public and private utility enterprises and contractors to address
outstanding concerns about the proposed street cut ordinance.
Attached for City Council review is an amended and red -line version of the proposed
street cut ordinance. I believe this final product meets the needs of both the City and its
utility and contractor partners.
The City Council also raised concerns that the proposed ordinance would represent a
tax on utility and contract customers. To that end, Senior Assistant City Attorney Mark
Kunkler has addressed the issue of whether the proposed $4.05 per square foot street
cut restoration cost is a tax for revenue purposes or regulatory fee to ensure the city
road infrastructure is restored to its former condition after a street excavation.
Whether a charge imposed by a governmental entity is a tax or regulatory fee depends
on three (3) factors according to State of Washington case law.
1. If the primary purpose of the charge is to raise revenue, rather than regulate,
then the charge is a tax. Conversely, if the primary purpose is to regulate, in
this case to restore the public's roads to their former condition after a series of
street cuts, the restoration charges are properly characterized as "tools of
regulation" rather than a tax.
2. Whether the money collected are allocated only for the authorized regulatory
purpose. The proposed street cut restoration ordinance provides that
revenues collected "shall be deposited in the street reconstruction account".
This is a separate fund allocated for the authorized regulatory purpose.
3. Whether there is a direct relationship between the fee charged and the
service received by those who pay the fee. In the case of the street
restoration ordinance, the fee charged is directly related to repairing the street
excavation damage.
Finally, the City Council requested information on the street cut ordinance and fees of
other comparable Washington cities. Staff reviewed street cut ordinances from the
following cities.
Auburn
Federal Way
Kirkland
Renton
Shoreline
Tacoma
Wenatchee
Bellevue
Issaquah
Lakewood
Richland
Spokane
Vancouver
Bellingham
Kent
Lynnwood
Seattle
Spokane Valley
Walla Walla
In general, these ordinances are very similar in their structure and approach (i.e.
inspections, permit fee, bond, etc). What differentiates them is the street restoration fee
they charge. The following highlights some of the comparable Washington city street
cut restoration fees.
City
Yakima
Wenatchee
Lynwood
Based on 100 square ft.
Excavation Cut
Fee PCI Discount
$405 Yes (average 50%) 150% = $607
$375 No 300% < 3 years = $1,125
200% < 3-5 years = $750
Surcharge if road is less than 5 years
$647 No No cuts if < 5 years
6 years is 500% = $3,235
7 years is 400% = $2,588
8 years is 300% = $1,941
9 years is 200% = $1,348
Walla Walla $551
No
None
Federal Way $1,000 per day until restoration is complete.
CITY OF YAKIMA
LEGAL
DEPARTMENT
200 South Third Street, Yakima, Washington 918901 (509)575-6030 Fax (509)575-6160
PRMLEGED AND CONFIDENTIAL: COVERED BY THE ATTORNEY-CLIENT AND ATTORNEY
WORK PRODUCT PRMLEGES
TO:
MEMORANDUM
July 3, 2014
Tony O'Rourke, City Manager
Jeff Cutter, City Attorney
FROM: Mark Kunkler, Senior Assistant City Attorney
SUBJECT: Differentiating "Taxes" and "Regulatory Fees"
Cities have limited authority to impose and levy taxes. The imposition of taxes to raise
revenues must be specifically authorized by a provision of the state constitution or by
state statute. On the other hand, cities have relatively broad authority — under their
general police powers to promote the public health, safety and welfare — to adopt
ordinances regulating conduct and business activities. Cities may also establish
"regulatory fees" to accomplish such police power regulation. Covell v. City of Seattle,
127 Wash.2d 874, 878-89, 905 P.2d 324 (1995).
Determining whether a particular charge is a "tax" or a "regulatory fee" has been
discussed in several court cases. The Covell court observed:
We turn first to the question of whether the street utility charge is a regulatory fee.
Governments may impose regulatory fees under their general police powers. Margola
Assoc. v. Seattle, 121 Wash.2d 625, 634-35, 854 P.2d 23 (1993); Wash. Const. art. 11,
§ 11. This court has recognized that these police powers are extensive.
Municipal police power is as extensive as that of the legislature, so long as the
subject matter is local and the regulation does not conflict with general laws.... The
scope of police power is broad, encompassing all those measures which bear a
reasonable and substantial relation to promotion of the general welfare of the
people. Hillis Homes, Inc. v. Snohomish County, 97 Wash.2d 804, 808, 650 P.2d
193 (1982) (Hillis Homes I) (quoting State v. Seattle, 94 Wash.2d 162, 165, 615
P.2d 461 (1980)). On the other hand, local governments may tax only pursuant to
specific legislative or constitutional authority. Margola, 121 Wash.2d at 634, 854
Memorandum - Taxes and Regulatory Fees
July 10, 2014
Page 2
P.2d 23; Hillis Homes 1, 97 Wash.2d at 809, 650 P.2d 193.
Whether a charge imposed by a governmental entity is a tax or a regulatory fee
depends upon three factors which have been identified in prior cases of this court. The
first factor to consider, as set forth in Hillis Homes 1, is "whether the primary purpose of
the county [or city] is to accomplish desired public benefits which cost money, or
whether the primary purpose is to regulate...." Id., at 809, 650 P.2d 193 (quoting
Haugen v. Gleason, 226 Or. 99, 104, 359 P.2d 108 (1961)). If the primary purpose of
the charges is to raise revenue, rather than to regulate, then the charges are a tax. Id.,
at 810, 359 P.2d 108. Conversely, if the primary purpose is regulatory, "the charges are
properly characterized as `tools of regulation', rather than taxes." Teter v. Clark County,
104 Wash.2d 227, 239, 704 P.2d 1171 (1985). The second factor which this court
considers is whether the money collected must be allocated only to the authorized
regulatory purpose. See Hillis Homes, Inc. v. Public Utility District 1, 105 Wash.2d 288,
300, 714 P.2d 1163 (1986) (Hillis Homes 11 ); Teter, 104 Wash.2d at 233-34, 704 P.2d
1171. The last inquiry is whether there is a direct relationship between the fee charged
and the service received by those who pay the fee or between the fee charged and the
burden produced by the fee payer. Id., at 232, 704 P.2d 1171; see also Hillis Homes ll,
105 Wash.2d at 301, 714 P.2d 1163. Where such a relationship exists, then the charge
may be deemed a regulatory fee even though the charge is not individualized according
to the benefit accruing to each fee payer or the burden produced by the fee payer. Id., at
301, 714 P.2d 1163.
Covell v. City of Seattle, 127 Wash.2d 874, 878-89, 905 P.2d 324 (1995); see also,
Lane v. City of Seattle, 164 Wash.2d 875, 882-83, 905 P.2d 977 (2008); Samis Land
Co. v. City of Soap Lake, 143 Wash.2d 798, 23 P.3d 477 (2001). The three factors are
thus:
(1) Whether the primary purpose of the City is to accomplish desired public benefits
which cost money, or whether the primary purpose is to regulate.
(2) Whether the money collected must be allocated only to the authorized regulatory
purpose.
(3)
Whether there is a direct relationship between the fee charged and the service
received by those who pay the fee or between the fee charged and the burden
produced by the fee payer.
A recent example of a "regulatory fee" would be the permit fee/restoration fee included
in the proposed amendment to Chapter 8.72 YMC, "Excavations in Public Rights -of -
Way." The purpose of the chapter is "to preserve the safety of the public and to
preserve, protect and improve the quality of the city roadway infrastructure by regulating
the uses of and construction in the public right-of-way." YMC 8.72.010. This is a
Memorandum - Taxes and Regulatory Fees
July 10, 2014
Page 3
specific reference to the "police power" regulatory authority of the City. Moreover, the
"primary purpose" of the chapter is to regulate street excavations within the public
rights-of-way, not to raise revenues for construction of streets.
Secondly, the "restoration fee" assessed pursuant to proposed YMC 8.72.070 provides
that revenues collected "shall be deposited in the street reconstruction account." This
is a separate fund allocated for the authorized regulatory purpose.
Thirdly, the permit fee/restoration fee bears a direct relationship to the burden on the
street system produced by the person or entity excavating in the public right-of-way. In
other words, only the person or entity excavating in the street would be subject to the
permit fee/restoration fee.
AN ORDINANCE
ORDINANCE NO. 2014 -
relating to excavations in public rights-of-way; repealing current Chapter
8.72 of the Yakima Municipal Code (YMC) and adopting new Chapter
8.72 YMC regarding excavations in public rights-of-way; stating
definitions, procedures for issuance of permits, and enforcement.
WHEREAS, the City Council has previously adopted ordinances establishing criteria for
issuance of permits, administration and enforcement of provisions regulating excavations in
public rights-of-way, all as codified at Chapter 8.72 YMC; and
WHEREAS, the City Council finds and determines that such chapter should be repealed,
and new Chapter 8.72 YMC adopted, to establish new procedures regarding issuance of
permits, administration and enforcement of provisions regarding excavations in public rights-of-
way; and
WHEREAS, the City Council finds and determines that new Chapter 8.72 YMC should
be adopted as shown and set forth in Exhibit "A" attached hereto and by this reference
incorporated herein, and that current Chapter 8.72 YMC as shown and set forth in Exhibit "B"
should be repealed, and that new Chapter 8.72 YMC approved herein shall replace and
supersede repealed Chapter 8.72 YMC; now, therefore
BE IT ORDAINED BY THE CITY OF YAKIMA:
Section 1. Chapter 8.72 of the Yakima Municipal Code is hereby adopted to read as
set forth in Exhibit "A" attached hereto and incorporated herein, which, upon the effective
date of this ordinance, shall supersede and replace the existing Chapter 8.72 YMC
repealed pursuant to Section 2 below.
Section 2. Existing Chapter 8.72 of the Yakima Municipal Code as set forth in Exhibit
"B" attached hereto and incorporated herein, is hereby repealed, effective upon the
effective date set forth in Section 3 below.
Section 3. This ordinance shall be in full force and effect 30 days after its passage,
approval, and publication as provided by law and by the City Charter.
PASSED BY THE CITY COUNCIL, signed and approved this 15th day of July, 2014.
ATTEST:
City Clerk
Publication Date:
Effective Date:
Micah Cawley, Mayor
Sections:
8.72.010
8.72.020
8.72.030
8.72.040
8.72.050
8.72.060
8.72.070
8.72.080
EXHIBIT "A"
Chapter 8.72
EXCAVATIONS IN PUBLIC RIGHTS-OF-WAY
Purpose.
Definitions.
Excavation permit required — Administration.
Conditions of permit — General contractor is responsible for the permit and all
subcontractors.
Execution of work.
Review of Ordinance
Fees.
Violations — Civil Penalties — Appeals — Criminal Penalty.
8.72.010 Purpose.
The purpose of the chapter is to preserve and protect the safety of the public and to preserve,
protect and improve the quality and longevity of city roadway infrastructure by regulating the
uses of and construction inrestorinq the public roads to their former condition after street
excavations. the public right of way.
8.72.020 Definitions.
For the purposes of this chapter, the following terms, phrases, words and their derivations shall
have the meaning given herein. When not inconsistent with the context, words used in the
present tense include the future, words in the plural number include the singular number, and
words in the singular number include the plural number. The word "shall" is always mandatory
and not merely directory.
"Administrator" means the director of the city's utilities and enqineerinqcommunity development
department.
"Applicant" means any person making written application to the administrator for an excavation
permit hereunder.
"City" means the City of Yakima.
"City council" or "council" means the city council of the City of Yakima.
"Emergency" means a condition of imminent danger to the health, safety, and welfare of
property or persons located within the city including, but not limited to, damage to persons or
property from natural or manmade consequences, such as storms, earthquakes, riots or wars.
"City manager" means the city manager of the City of Yakima or his or her designee.
1
"Excavation work" means the excavation and other work permitted under an excavation permit
1 and required to be performed under this chapter.
"Paving Condition Index" or "PCI" means a written rating measuring pavement condition using
a numerical index between 0 and 100, where 100 equals no defects, that is calculated from a
visual survey of street distress based upon principles or practices reasonably accepted within
the civil engineering or traffic engineering profession. Principles or practices reasonably
accepted within the civil engineering or traffic engineering profession include, but are not limited
to, the Washington State Department of Transportation (WSDOT) extended method in
determining paving distress ratings, the WSDOT pavement distress manual, the WSDOT local
agency pavement management guide, and/or methodologies recommended by the American
Association of State Highway and Transportation Officials (AASHTO) and American Society for
Testing and Materials (ASTM).
"Permittee" means any person who has been granted and has in full force and effect an
excavation permit issued hereunder.
"Person" means any person, firm, partnership, association, corporation, company or
organization of any kind.
"Street" means and includes any street, highway, sidewalk, alley, avenue, easement granted to
or held by the city for public use, or other public way or public grounds in the city.
8.72.030 Excavation permit required — Administration.
A. It is unlawful for any person to dig up, break, excavate, tunnel, or undermine, any street,
alley, sidewalk, highway, thoroughfare or other public place, without first obtaining an
excavation permit from the City and thereafter complying with the requirements of the permit.
The review and approval of such permits applications shall be performed by the office -of the
director of the utilities and engineering department or dcsigncc. Receipt of applications and
fees, issuance of approved permits, administration and enforcement of the provisions of this
chapter shall also be performed by the utilities and engineering director of the city's community
development department or dcsigncc.
B. Nothing in this chapter shall be construed to prevent any person from maintaining any
utility facilities in or under any right-of-way by virtue of any law, ordinance or permit as may be
necessary for the preservation of life or property in the case of an emergency, provided that the
person shall obtain an excavation permit in arrears, within two (2) business days following the
conclusion of the emergency situation and any required response.
(1) Emergency excavations shall be subject to all fees and requirements of this
chapter. In case of an cmcrgcncy arising outsidc of officc hours whcn an immcdiatc
to the administrator on the first working day thcr aftcr. The permit for said work shall be
obtained at the time of reporting.
2
C.
Permits are not transferable. All contractors excavating or tunneling in the public right
subcontractors may work under their general contractor's permit. All contractors working in the
same area or job site are encouraged to coordinate their work within the same traffic control
plan if possible.
8.72.040 Conditions of permit.
A. The general contrantorapplicant is responsible for the permit and all subcontractorsand
the traffic control plan. The permit covers the general contractor's subcontractors as long as
such subcontractorsthey are not excavating in the public right of way.
B. The excavation permit application form and submittal requirements shall be in such form
as prescribed by the City. At a minimum, tThe following information shall be required for
application:
1) General
i. The name and residence or business address of the applicant; including the
applicant's state contractor's license;
ii. The location and approximate area of the excavation;
iii. The purpose, a plan or drawing, and a schedule for the proposed period of
excavation;
iv. A traffic control plan;
v. Insurance and bond;
vi. A plan showing the specific location and area of the excavation, including the
dimensions of its length and width, and any other information that may be
deemed by the City to clearly explain the work.
2) The applicant shall pay fees as determined by Section 8.72.070 of this code.
i. No fee or requirement authorized or imposed pursuant to this chapter shall be
construed to affect or alter in any way any obligation of public and private
utilities with facilities installed in any public right-of-way to relocate the
facilities at no cost to the city, in the event that relocation is required by the
city to accommodate public safety within the public right-of-way. Any
directive must comply with RCW 35.99.060 Relocation of Facilities — Notice —
Reimbursement.
C. The permittee shall, at a minimum, be responsible for public safety as follows:
1) Comply with all current federal, state and local safety regulations and all federal
and state disability laws including those requiring an accessible path of travel.
2) Utilize appropriate traffic control, per the Manual on Uniform Traffic Control
Devices (MUTCD), at all times for the duration of the permit.
3) A legible Ttraffic control plans shall be included with all permit applications by the
general contractor or by subcontractorapplicant unless a traffic control plan has already
been submitted and approved.
3
i. Traffic control plans shall be designed and drawn, using MUTCD standards,
by an American Traffic Safety Services Association (ATSSA), or equivalent
certifying entity, certified Traffic Control Supervisor.
a) A "training" grace period of 90 days, from the date this ordinance is
enacted, will be allowed for persons designing and drawing traffic
control plans to be certified.
ii. Right of way crossings shall not reasonably interfere with or unduly impair the
use or access of the right of way of adjacent property.
ii. Traffic control plans shall be site specific.
a) The use of appropriatc computcr softwarc is cncouragcd as illcgiblc
plans will not be accepted.
b) Generic plans are not acceptable.
iii. The level of complexity required for traffic control shall be commensurate with
4) Excavations shall not be left unprotected at the end of a shift unless continuous
shifts are planned.
i. Backfill, steel plates, security fencing and other safety options may be
considered on a case-by-case basis by the City.
ii. Barricades, warning tape and plastic fence are not acceptable alternatives.
D. The permittee shall designate an employee responsible for the installation, maintenance and
removal of barricades and warning signs, as required by the approved traffic control plan.
1) Barricades shall not be placed on sidewalks, pedestrians or bike paths, or dedicated
bike lanes unless said pathways are permitted to be closed.
2) Barricades, including supports, shall be moved outside the clear zone when not in
use.
3) The city will inspect barricading for compliance with approved traffic control plans as
it deems necessary.
4) Barricades and warning signs shall be removed from the right-of-way promptly at the
completion of the work.
E. All flaggers shall be trained and certified by a training agency normally engaged in the
business of flagger training. Flaggers must show certification cards on request. Approved
safety wear is required.
4
F. The permittee shall be responsible for the utility location service, surface (asphalt, concrete,
other) cut, excavation, backfill, compaction, surface replacement, testing, any necessary
remedial work, and materials incorporated in the work.
G. Indemnification, hold harmless, insurance and bond.
1) Indemnification and hold harmless.
i. Applicant agrees to protect, defend, indemnify, and hold harmless the city, its
elected officials, officers, employees, agents, and volunteers from any and all
claims, demands, losses, liens, liabilities, penalties, fines, lawsuits, and other
proceedings and all judgments, awards, costs and expenses (including
reasonable attorneys' fees and disbursements) resulting from death or bodily
injury to any person or damage or destruction to a third party or third parties
to the extent caused by any negligent act and/or omission of the applicant, its
officers, employees, agents, volunteers and/or subcontractors, arising out of
or relating to the issuance of a permit to applicant pursuant to Chapter 8.72
YMC or the work done by applicant or its subcontractors after receiving the
permit, and/or the performance of work done pursuant to a contract with the
city.
ii. Nothing contained in this section or this contract shall be construed to create
a liability or a right of indemnification in any third party.
2) Insurance.
i. General Requirements.
a) The applicant shall obtain the insurance described in this section from
insurers approved by the State Insurance Commissioner pursuant to
RCW Title 48. The insurance must be provided by an insurer with a
rating of A-: VII or higher in the A.M. Best's Key Rating Guide, which
is licensed to do business in the state of Washington (or issued as a
surplus line by a Washington surplus lines broker). The city reserves
the right to approve or reject the insurance provided, based on the
insurer (including financial condition), terms and coverage, the
certificate of insurance, and/or endorsements.
b) The applicant shall keep this insurance in force during the term of the
affected work and for thirty days after the physical completion date,
unless otherwise indicated (see subsection (c) below).
c) If any insurance policy is written on a claims -made form, its retroactive
date, and that of all subsequent renewals, shall be no later than the
5
effective date of this permit. The policy shall state that coverage is
claims -made, and state the retroactive date. Claims -made form
coverage shall be maintained by the applicant for a minimum of thirty-
six months following the final completion or earlier termination of this
permit, and the applicant shall annually provide the city with proof of
renewal. If renewal of the claims -made form of coverage becomes
unavailable, or economically prohibitive, the applicant shall purchase
an extended reporting period ("tail") or execute another form of
guarantee acceptable to the city to assure financial responsibility for
liability for services performed.
d) The applicant's and all subcontractors' insurance coverage shall be
primary and noncontributory insurance as respects the city's
insurance, self-insurance, or insurance pool coverage.
e) The applicant shall provide the city and all additional insured's with
written notice of any policy cancellation, within two business days of
their receipt of such notice.
f) Upon request, the applicant shall forward to the city a full and certified
copy of the insurance certificate.
g)
The applicant shall not begin work under the permit until the required
insurance has been obtained and approved by the city.
h) Failure on the part of the applicant to maintain the insurance as
required shall constitute a material breach of permit, upon which the
city may, after giving five business days' notice to the applicant to
correct the breach, immediately terminate the permit.
i) All costs for insurance shall be the responsibility of the applicant.
ii. Additional Insured. All insurance policies, with the exception of workers'
compensation, shall name the following listed entities as additional
insured(s):
a) The city and its elected and appointed officials, officers, employees,
agents and volunteers.
b) The above -listed entities shall be additional insured(s) for the full
available limits of liability maintained by the applicant, whether
primary, excess, contingent or otherwise, irrespective of whether such
limits maintained by the applicant are greater than those required by
this permit, and irrespective of whether the certificate of insurance
provided by the applicant pursuant to subsections iv and v of this
section describes limits lower than those maintained by the applicant.
iii. Subcontractors. Applicant shall ensure that each subcontractor of every tier
obtains and maintains at a minimum the insurance coverages listed in
subsection v of this section. Upon request of the city, the applicant shall
provide evidence of such insurance.
iv. Evidence of Insurance. The required certificates of insurance in subsection v
of this section shall clearly state who the provider is, the coverage amount,
the policy number, and when the policy and provisions provided are in effect.
Said policy shall be in effect for the duration of this contract or permit. The
policy shall name the city, its elected and appointed officials, officers,
employees, agents and volunteers as additional insured's, and shall contain a
clause that the insurer will not cancel or change the insurance without first
giving the city prior written notice. A copy of the additional insured
endorsement will be included with the certificate. The insurance shall be with
an insurance company or companies rated A-: VII or higher in Best's Guide
and admitted in the state of Washington (or issued as a surplus line by a
Washington surplus lines broker).
v. Coverages and Limits.
a) Insurance.
a. At all times during performance of the services, applicant shall
secure and maintain in effect insurance to protect the city from
and against all claims, damages, losses, and expenses arising
out of or resulting from the performance of this contract or
permit. Applicant shall provide and maintain in force insurance
in limits no less than that stated below, as applicable. The city
reserves the right to require higher limits should it deem it
necessary in the best interest of the public.
b. Commercial General Liability Insurance. Before this contract or
permit is fully executed by the parties, applicant shall provide
the city with a certificate of insurance as proof of commercial
liability insurance and commercial umbrella liability insurance
with a total minimum liability limit of one million dollars per
occurrence combined single limit bodily injury and property
damage, and two million dollars general aggregate. The
aggregate limit will apply "per job" or "per project." The policy
will include Washington stop gap (employer's liability)
coverage.
b) Commercial Automobile Liability Insurance.
a. If the applicant owns any vehicles, before this contract or
permit is fully executed by the parties, applicant shall provide
the city with a certificate of insurance as proof of commercial
automobile liability insurance and commercial umbrella liability
insurance with a total minimum liability limit of one million
dollars per occurrence combined single limit bodily injury and
property damage. Automobile liability will apply to "any auto"
and be shown on the certificate.
b. If the applicant does not own any vehicles, only "non -owned
and hired automobile liability" will be required and may be
added to the commercial liability coverage at the same limits
as required in that subsection above entitled "Commercial
General Liability Insurance."
c) Workers' Compensation. The applicant shall comply with workers'
compensation coverage as required by the industrial insurance laws
of the state of Washington.
3) Bond.
i. The applicant shall provide a minimum of $10,000 bond to assure successful
completion of the permitted work. The city may use this bond to complete
unfinished work or to correct any damage to existing infrastructure that is
caused by the permittee.
ii. The bond may be written for a single event, a specific duration or it may be
evergreen.
iii. The city reserves the right to request additional bonding should it be
determined that the amount of the work or risk exceeds the capacity of the
bond.
iv. If the bond is for a single event, the bond shall be returned to the permittee
upon successful completion of the work, as determined by the City.
v. This requirement is not in addition or instead of the bonding/insurance
requirements for a city capital improvement project.
H. Roads less than five years old can be cut, but will cost 150% of restoration fee with no PCI
discount.
I. The permittee shall notify the City upon completion of the work.
J. The city will provide any necessary inspections, during normal business hours, inclusive in
the permit fccat the applicant's expense. Should the permittee request inspections outside
normal business hours, or should additional inspections ace -be necessary to ensure public
safety, the permittee shall pay for all additional inspection costs, including overtime costs.
K. Except as otherwise expressly provided herein, all costs of complying with this chapter shall
be borne by the applicant/permittee.
L. Upon receipt of a complete excavation permit application package, the City shall determine
and set forth all requirements, approve or disapprove the application, and, if approved, sign
and return it to the applicant with a permit number.
1) Each permit will state the estimated start and completion date of the permitted work.
i. Type A 1 30 days ($100) - Permit
ii. Type B 30 additional days ($100) — Permit extension
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2) The City may grant permit extensions of time (Type B permit) if requested by the
permittee.
i. The permittee must request the time permit extension at least 24 hours prior
to the stated completion date of the permit.
ii. Additional fees required by the requested extension must be paid prior to the
issuance of the extension.
3) The City may modify the permit if circumstances or conditions appearing after the
work is started make it impossible, dangerous or excessively inconvenient to the
travelling public for the permittee to comply with the requirements of the permit.
4) No person in violation of any requirement of this chapter shall be issued an
excavation permit, nor shall any contractor or agent apply for or be issued an
excavation permit on the person's behalf, until the outstanding violation is corrected.
i. The foregoing requirement is in addition to any penalty or remedy for violation
that may be imposed or sought by the city at law or equity.
8.72.050 Execution of work.
A. Work hours.
1) The permittee is encouraged to perform the work outside of normal commute times,
however, the permittee may make its case to the City for when the work needs to be
done.
i. Alternate hours, including nights or weekends, may be required for operations
that unduly disrupt traffic flows or represent potential safety hazards.
B. A copy of the approved excavation permit shall be kept at the work site all times while such
work is in progress.
C. Permittee shall conform to any public notification requirements included in the permit,
contract documents, or approved plans.
D. Right of way crossings shall not unreasonably interfere with or unduly impair the proper and
safe use of the right of way or adjacent properties.
D. All persons performing work shall take reasonable precautions not to damage or destroy
existing facilities.
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E. Excavation requirements are referenced in the city's design standards, as posted on the
Department of Utilities and Engineering webpage and office.
1) Except for requirements subject to the exclusive jurisdiction of another regulatory
agency, thc location, dcpth and othcr physical characteristics of any facilities for
which an excavation permit is issued shall be subject to approval of the City and all
backfilling, compaction and pavement restoration performed for any excavation shall
AM
Utilities and Engineering's webpage.
i. Permittee shall coordinate their installation with existing facilities to minimizc
damage to, and avoid unduc disruption and intcrfcrcncc with thc public use
of such rights of way.
ii. The use of directional drilling or othcr guided tunneling processes may be
required.
2) No trench shall be opened in any street for the purpose of laying pipes, conduits or
ducts more than four hundred ('100) feet in advance of the pipe, conduit or ducts
being placed in the trench.
3) The excavated pavement and other rubble shall be removed, together with any
surplus excavated material, within one working day from thc time such material is
placed upon the street.
'1) Whenever a pavement cut is required, pavement shall be sawcut to neat, true lines
parallel and perpendicular to the centerline of the road.
i. Width of pavement cut shall be sufficient to remove any broken or cracked
pavement and to allow for the equipment required to obtain the required
compaction.
ii. Edges of pavement cuts shall receive an application of tack coat prior to
placing the new pavement. All asphalt patches shall match existing road
sections, including base depth and material.
pavement above such caving shall be cut away.
a) In no case shall any void under a pavement be filled by any side or
lateral tamping.
5}1 Restoration.
i. Any disturbance of pavement (including damage caused by dumpsters or
construction drop boxes), sidewalk, driveways, landscaping, striping or other
marking, traffic loops or other devices, or any other feature shall be restored,
repaired or replaced to City standards or to the condition existing prior to the
disturbance, as modified by the requirements herein, if no restoration
standard exists.
a) Destructive cuts for utility locates shall be as small as possible and
shall be restored with flo-fill or low PSI concrete as approved by the
director.
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ii. Replacement of roadway in lieu of restoration fee, may be requested by the
permittee and is permissible if agreed to by the City.
iii. Work areas, including adjacent areas that were cleared/grubbed or damaged,
shall be stabilized and reseeded within 14 calendar days, weather permitting
and seasonally adjusted, after the permit completion date.
iv. All excavations within the right-of-way shall be properly backfilled with
consecutive lifts not exceeding eight inches of loose material and shall
require a two (2) year warranty.
v. Sidewalks, curbs, gutters or combination curbs and gutters shall be removed
to nearest joint. All concrete used to replace curbs and gutters shall obtain a
minimum compression strength of 3,000 p.s.i. at 28 days. Curbs and gutters
shall be replaced to conform to the same shape, size and continuous gradient
as existing curbs and gutters.
vi. After backfilling is completed, and prior to repaving the cut, the contractor or
permittee shall remove all loose paving material and trim the edges of the
excavation at the street surface.
vii. Roads and sidewalks shall be restored to a safe, passable condition prior to
the work area being opened for public use.
a) Temporary surfaces may be in place for no more than 72 hours
unless weather or other mitigating circumstances are present.
i. The City's approval, with conditions and allowable
duration, is required to leave temporary surface in
place for longer than 72 hours.
ii. Failure to comply with the City's conditions will
constitute a violation under this chapter.
iii. Maintenance of temporary surface will require a
separate encroachment permit if not completed as part
of the original work.
iv. If the temporary surface is not maintained in a safe and
acceptable manner, and the permittee does not
respond or is not able to respond in a timely manner to
maintain the temporary surface as required by the city,
the city may cause the work to be done.
1. The cost thereof, including any inspection costs
and administrative overhead incurred by the
city, shall be assessed against the permittee.
b) Permanent restoration shall require a separate permit if not completed
as part of the original work within six (6) months.
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6.2) Repair of failed surface over excavation.
i. Should the pavement or sidewalk surface over any excavation sink or break
within two years after the excavation has been completed the permittee shall,
upon written notice from the City, immediately repair the installation or backfill
and have the pavement restored as specified by the City, within such time
period as may be specified by the City.
a) If the permittee does not respond or is not able to respond in a timely
manner as required by the City, the City may cause the work to be
done.
b) The cost thereof, including any inspection costs and administrative
overhead incurred by the city, shall be assessed against the
permittee.
&E Maintenance. The permittee shall maintain the work site in a clean and orderly manner.
l=kG Failure to complete work. If any part of the work referred to in this chapter is not
completed within the time set forth in the permit, the City may provide written notice to the
person performing the work to complete the work within forty-eight (48) hours thereafter.
i. If the work is not completed within this time period, the city may cause the
work to be performed at the expense of the applicant, including such work as
restorin�ce the work area to a safe and passable condition until the work
can be completed.
ii. The cost thereof, including any inspection costs and administrative overhead
incurred by city, shall be paid by the permittcc within thirty (30) days of noticc
of the cost.
8.72.060 Review of Ordinance
This ordinance will be reviewed and revised as necessary, at least annually, by the City.
8.72.070 Fees.
A. All applicants and permittees subject to this chapter shall pay permit fees and be subject to
penalty fees if they violate the requirements of this chapter, except as provided below.
1) City projects or crews that are funded out of the general fund may be exempt from
paying permit fees, depending on the original source of the project funding, but must
comply with the remainder of this chapter.
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2) City projects or crews that are funded from Fund 142, Arterial Streets Fund, may be
exempt from paying restoration fees, depending on the original source of the project
funding, but must comply with the remainder of this chapter.
3) Roads that the City plans to resurface or reconstruct within the following
182 months are exempt from the resurfacing fee. Notice shall be provided by
December 1 of each calendar year.
4) Restoration fee area shall be calculated in square feet, as follows:
i. $4.05/square foot of trench area, including an additional 3' zone of influence
on each side of the trench.
Roads less than 5 yctiars old will cost 150% of rcctoration fcc cxccpt in thc
casc of cmcrgcncy cxcavation thcy will be chargcd only 100% of thc
restoration fee.
ii. Roads more than five (5) years old shall be Aadjusted by the road Pavement
Condition Index (PCI), represented in decimal form, to compensate for the
existing condition of the road when cut.
• Example: the restoration fee of a road with a PCI of 40 would be
discounted by 60%
iii. Roads less than five (5) years old will cost 150% of restoration fee except in
the case of emergency excavation they will be charged only 100% of the
restoration fee. Roads less than 5 years old, regardless of the reason for the
cut will not be adjusted by the PCI.
5) Revenues collected for restoration fee shall be deposited in the street reconstruction
account.
6) The following fees shall apply to right-of-way use permits:
i. Base administration fee = $100.00 (renewable monthly)
ii. Inspection fee - $60.00/hour with a one hour minimum.
Penalty fees — Failure to comply with this chapter: $500/violation/day.
8.72.080 Violations — Civil Penalties —Appeals Cnminal Penalty
A. General — Authority of City.
Whenever the City finds probable cause to believe violation of any of the provisions of this
chapter exists, the City shall notify the person responsible for the alleged violation in writing and
shall order the necessary corrections to be made. If such violation is not corrected within the
period of time established by the City, the City may invoke the remedies set forth in this section
and/or any other remedy available under state law or city code. The provisions in this section
are not exclusive remedies. The City reserves the right to take any, all, or any combination of
these actions against any person violating the provisions of this chapter, together with any other
action available under state law or city code.
1 B. Procedure — Notification of Violation — Effect of Violation — Appeals.
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The City shall notify any person found to be in violation with this chapter of the scope of
violation, the provisions violated, the date of violation (if known), and the required correction.
(1) Said notice of violation and correction shall be in writing and may be hand -delivered,
faxed or e-mailed to the person or persons responsible for the violation. The notice
shall advise such person(s): (a) that failure to correct the violation within the time
specified will subject the violator(s) to imposition of a civil penalty fee up to $500 per
violation for each day the violation remains uncorrected; (b) that all violations shall be
corrected and all assessed penalties paid prior to issuance of another right-of-way use
permit to such persons(s); (c) that the city reserves the right to invoke any other
remedy available under state law and city code, including but not limited to, filing of
criminal charges pursuant to subsection CS of this section; and (d) appeal rights
available to the person or persons receiving the notice of violation and correction as set
forth in subsection (4) below.
(2) Should that person fail to correct the violation within the period of time directed, the
director is authorized to assess against the person or persons causing such violation a
civil penalty fee up to $500 per violation for each day the violation remains uncorrected.
Written notice of the assessed penalty fee shall be hand -delivered, faxed or e-mailed to
each person determined to be responsible for such violation.
(3) All violations shall be corrected and all penalties assessed must be paid prior to the
city's issuance of another right-of-way use permit to such person.
(4) Appeal of administrative decision. Any person aggrieved by a decision of the
administrator denying a permit, revoking a permit, imposing any condition on a permit
not authorized by this chapter, or issuance of a notice of violation and correction under
this chapter, shall have the right to appeal to the 'e^islative bodyCity Manager in
accordance with the procef and procedure set forth in YMC 15.16.040 and 15.16.050.
Decisions of the City Manager'o^ic'ativo body may similarly be appealed to the Yakima
County superior court in accordance with the process and procedure set forth in YMC
15.16.060.
(5) Notwithstanding the provisions above, the city reserves the right to file criminal
charges or pursue any other available remedy without first assessing penalty fees or
pursuing administrative remedies set forth abovc, when, in thc sole determination of thc
city, the violation cannot be effectively remedied by assessment of penalty fees or
imposition of any other administrative remedy set forth above.
C. Corrective actions Appeal.
and necessary safety prccautions shall be taken until the violation is corrected.
i. Failure to immediately comply with thc abovc paragraph shall justify the
asscssmcnt of a penalty fee.
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ii. Repeat offences shall justify the immediate issuance of penalty fees, filing of
other remedy available to the city under state law or city code.
(2) Any other violation of nonconformance that does not constitute, in the determination
of issuance of the notice of violation.
i. Failure to comply with the above paragraph shall justify the assessment of
penalty fees.
ii. Repeat offences shall justify the immediate assessment of penalty fees, filing
other remedy available to the city under state law or city code.
(3) Appeals of administrative corrective actions. Any person receiving a notice of
violation under this chapter shall have the right to an administrative hearing to contest
the city's determination of violation or assessment of penalty fees.
Any hearing pursuant to this section must be requested by the appellant
in writing within ten (10) days after the appellant receives notice of
violation. The appellant's written request for hearing shall be filed with
the City. Failure to submit a timely noticc shall bc dccmcd to bc a failurc
to exhaust administrative remedies and shall preclude any further review.
The city will conduct thc hctiaring within twcnty days of thc rcccipt of thc
request.
�i. The administrative hearing authorizcd by this scction will bc hcld bcforc
the city manager or the city manager's designee. Formal rules of
c✓idence will not apply but thc appellant and the city shall have the right
to present witnesses and documentary cvidcncc. The city managcr or thc
city manager's designee will issue a written decision within tcn (10) days
of the conclusion of the hearing.
iii. Any appellant requesting a hearing shall have the right to make an
cicctronic or stcnographic rccord of thc procccdings. Such record shall
be made at the discharger's expense.
iv. Except as otherwise provided, all decisions by the city manager shall bc
final and conclusive on all parties unlcss within twenty (20) days from thc
date of final action, the appellant files a petition for review in a court of
competent jurisdiction in the manner prescribed by law.
('1) Notwithstanding the provisions above, the city reserves the right to file criminal
charges or pursue any other available remedy without first assessing penalty fees or
pursuing administrativc rcmcdics sct forth abovc, whcn, in thc solc dctcrmination of thc
city, the violation cannot be effectively remedied by assessment of penalty fees or
imposition of any other administrative remedy set forth above.
Q. Criminal penalties. As an additional or cumulative remedy, any Any violation of this
chapter shall be person who willfully, knowingly, recklessly or negligently violates any provision
of this chapter through any act or omission shall, upon conviction, be guilty of a misdemeanor,
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punishable by a fine of not more than one thousand dollars or imprisonment not to exceed
violation shall constitute a separate offense.
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Sections:
8.72.010
8.72.020
8.72.030
8.72.040
8.72.050
8.72.060
8.72.070
8.72.080
EXHIBIT "A"
Chapter 8.72
EXCAVATIONS IN PUBLIC RIGHTS-OF-WAY
Purpose.
Definitions.
Excavation permit required — Administration.
Conditions of permit — General contractor is responsible for the permit and all
subcontractors.
Execution of work.
Review of Ordinance
Fees.
Violations — Civil Penalties — Appeals — Criminal Penalty.
8.72.010 Purpose.
The purpose of the chapter is to preserve and protect the quality and longevity of city roadway
infrastructure by restoring the public roads to their former condition after street excavations.
8.72.020 Definitions.
For the purposes of this chapter, the following terms, phrases, words and their derivations shall
have the meaning given herein. When not inconsistent with the context, words used in the
present tense include the future, words in the plural number include the singular number, and
words in the singular number include the plural number. The word "shall" is always mandatory
and not merely directory.
"Administrator" means the city's utilities and engineering department.
"Applicant" means any person making written application to the administrator for an excavation
permit hereunder.
"City" means the City of Yakima.
"City council" or "council" means the city council of the City of Yakima.
"Emergency" means a condition of imminent danger to the health, safety, and welfare of
property or persons located within the city including, but not limited to, damage to persons or
property from natural or manmade consequences, such as storms, earthquakes, riots or wars.
"City manager" means the city manager of the City of Yakima or his or her designee.
"Excavation work" means the excavation and other work permitted under an excavation permit
and required to be performed under this chapter.
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"Paving Condition Index" or "PCI" means a written rating measuring pavement condition using
a numerical index between 0 and 100, where 100 equals no defects, that is calculated from a
visual survey of street distress based upon principles or practices reasonably accepted within
the civil engineering or traffic engineering profession. Principles or practices reasonably
accepted within the civil engineering or traffic engineering profession include, but are not limited
to, the Washington State Department of Transportation (WSDOT) extended method in
determining paving distress ratings, the WSDOT pavement distress manual, the WSDOT local
agency pavement management guide, and/or methodologies recommended by the American
Association of State Highway and Transportation Officials (AASHTO) and American Society for
Testing and Materials (ASTM).
"Permittee" means any person who has been granted and has in full force and effect an
excavation permit issued hereunder.
"Person" means any person, firm, partnership, association, corporation, company or
organization of any kind.
"Street" means and includes any street, highway, sidewalk, alley, avenue, easement granted to
or held by the city for public use, or other public way or public grounds in the city.
8.72.030 Excavation permit required — Administration.
A. It is unlawful for any person to dig up, break, excavate, tunnel, or undermine, any street,
alley, sidewalk, highway, thoroughfare or other public place, without first obtaining an
excavation permit from the City and thereafter complying with the requirements of the permit.
The review and approval of such permit applications shall be performed by the utilities and
engineering department. Receipt of applications and fees, issuance of approved permits,
administration and enforcement of the provisions of this chapter shall also be performed by the
utilities and engineering department.
B. Nothing in this chapter shall be construed to prevent any person from maintaining any
utility facilities in or under any right-of-way by virtue of any law, ordinance or permit as may be
necessary for the preservation of life or property in the case of an emergency, provided that the
person shall obtain an excavation permit in arrears, within two (2) business days following the
conclusion of the emergency situation and any required response.
8.72.040 Conditions of permit.
A. The applicant is responsible for the permit and the traffic control plan. The permit covers
the general contractor's subcontractors as long as such subcontractors are not excavating in the
public right of way.
B. The excavation permit application form and submittal requirements shall be in such form
as prescribed by the City. The following information shall be required for application:
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1) General
i. The name and residence or business address of the applicant, including the
applicant's state contractor's license;
ii. The location and approximate area of the excavation;
iii. The purpose, a plan or drawing, and a schedule for the proposed period of
excavation;
iv. A traffic control plan;
v. Insurance and bond;
vi. A plan showing the specific location and area of the excavation, including the
dimensions of its length and width, and any other information that may be
deemed by the City to clearly explain the work.
2) The applicant shall pay fees as determined by Section 8.72.070 of this code.
i. No fee or requirement authorized or imposed pursuant to this chapter shall be
construed to affect or alter in any way any obligation of public and private
utilities with facilities installed in any public right-of-way to relocate the
facilities at no cost to the city, in the event that relocation is required by the
city to accommodate public safety within the public right-of-way. Any
directive must comply with RCW 35.99.060 Relocation of Facilities — Notice —
Reimbursement.
C. The permittee shall, at a minimum, be responsible for public safety as follows:
1) Comply with all current federal, state and local safety regulations and all federal
and state disability laws including those requiring an accessible path of travel.
2) Utilize appropriate traffic control, per the Manual on Uniform Traffic Control
Devices (MUTCD), at all times for the duration of the permit.
3) A legible traffic control plan shall be included with all permit applications by the
applicant unless a traffic control plan has already been submitted and approved.
i. Traffic control plans shall be designed and drawn, using MUTCD standards,
by an American Traffic Safety Services Association (ATSSA), or equivalent
certifying entity, certified Traffic Control Supervisor.
a) A "training" grace period of 90 days, from the date this ordinance is
enacted, will be allowed for persons designing and drawing traffic
control plans to be certified.
4) Excavations shall not be left unprotected at the end of a shift unless continuous
shifts are planned.
i. Backfill, steel plates, security fencing and other safety options may be
considered on a case-by-case basis by the City.
ii. Barricades, warning tape and plastic fence are not acceptable alternatives.
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D. The permittee shall designate an employee responsible for the installation, maintenance and
removal of barricades and warning signs, as required by the approved traffic control plan.
1) Barricades shall not be placed on sidewalks, pedestrians or bike paths, or dedicated
bike lanes unless said pathways are permitted to be closed.
2) Barricades, including supports, shall be moved outside the clear zone when not in
use.
3) The city will inspect barricading for compliance with approved traffic control plans as
it deems necessary.
4) Barricades and warning signs shall be removed from the right-of-way promptly at the
completion of the work.
E. All flaggers shall be trained and certified by a training agency normally engaged in the
business of flagger training. Flaggers must show certification cards on request. Approved
safety wear is required.
F. The permittee shall be responsible for the utility location service, surface (asphalt, concrete,
other) cut, excavation, backfill, compaction, surface replacement, testing, any necessary
remedial work, and materials incorporated in the work.
G. Indemnification, hold harmless, insurance and bond.
1) Indemnification and hold harmless.
i. Applicant agrees to protect, defend, indemnify, and hold harmless the city, its
elected officials, officers, employees, agents, and volunteers from any and all
claims, demands, losses, liens, liabilities, penalties, fines, lawsuits, and other
proceedings and all judgments, awards, costs and expenses (including
reasonable attorneys' fees and disbursements) resulting from death or bodily
injury to any person or damage or destruction to a third party or third parties
to the extent caused by any negligent act and/or omission of the applicant, its
officers, employees, agents, volunteers and/or subcontractors, arising out of
or relating to the issuance of a permit to applicant pursuant to Chapter 8.72
YMC or the work done by applicant or its subcontractors after receiving the
permit, and/or the performance of work done pursuant to a contract with the
city.
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ii. Nothing contained in this section or this contract shall be construed to create
a liability or a right of indemnification in any third party.
2) Insurance.
i. General Requirements.
a) The applicant shall obtain the insurance described in this section from
insurers approved by the State Insurance Commissioner pursuant to
RCW Title 48. The insurance must be provided by an insurer with a
rating of A-: VII or higher in the A.M. Best's Key Rating Guide, which
is licensed to do business in the state of Washington (or issued as a
surplus line by a Washington surplus lines broker). The city reserves
the right to approve or reject the insurance provided, based on the
insurer (including financial condition), terms and coverage, the
certificate of insurance, and/or endorsements.
b) The applicant shall keep this insurance in force during the term of the
affected work and for thirty days after the physical completion date,
unless otherwise indicated (see subsection (c) below).
c) If any insurance policy is written on a claims -made form, its retroactive
date, and that of all subsequent renewals, shall be no later than the
effective date of this permit. The policy shall state that coverage is
claims -made, and state the retroactive date. Claims -made form
coverage shall be maintained by the applicant for a minimum of thirty-
six months following the final completion or earlier termination of this
permit, and the applicant shall annually provide the city with proof of
renewal. If renewal of the claims -made form of coverage becomes
unavailable, or economically prohibitive, the applicant shall purchase
an extended reporting period ("tail") or execute another form of
guarantee acceptable to the city to assure financial responsibility for
liability for services performed.
d) The applicant's and all subcontractors' insurance coverage shall be
primary and noncontributory insurance as respects the city's
insurance, self-insurance, or insurance pool coverage.
e) The applicant shall provide the city and all additional insured's with
written notice of any policy cancellation, within two business days of
their receipt of such notice.
f) Upon request, the applicant shall forward to the city a full and certified
copy of the insurance certificate.
g)
The applicant shall not begin work under the permit until the required
insurance has been obtained and approved by the city.
h) Failure on the part of the applicant to maintain the insurance as
required shall constitute a material breach of permit, upon which the
5
city may, after giving five business days' notice to the applicant to
correct the breach, immediately terminate the permit.
i) All costs for insurance shall be the responsibility of the applicant.
ii. Additional Insured. All insurance policies, with the exception of workers'
compensation, shall name the following listed entities as additional
insured(s):
a) The city and its elected and appointed officials, officers, employees,
agents and volunteers.
b) The above -listed entities shall be additional insured(s) for the full
available limits of liability maintained by the applicant, whether
primary, excess, contingent or otherwise, irrespective of whether such
limits maintained by the applicant are greater than those required by
this permit, and irrespective of whether the certificate of insurance
provided by the applicant pursuant to subsections iv and v of this
section describes limits lower than those maintained by the applicant.
iii. Subcontractors. Applicant shall ensure that each subcontractor of every tier
obtains and maintains at a minimum the insurance coverages listed in
subsection v of this section. Upon request of the city, the applicant shall
provide evidence of such insurance.
iv. Evidence of Insurance. The required certificates of insurance in subsection v
of this section shall clearly state who the provider is, the coverage amount,
the policy number, and when the policy and provisions provided are in effect.
Said policy shall be in effect for the duration of this contract or permit. The
policy shall name the city, its elected and appointed officials, officers,
employees, agents and volunteers as additional insured's, and shall contain a
clause that the insurer will not cancel or change the insurance without first
giving the city prior written notice. A copy of the additional insured
endorsement will be included with the certificate. The insurance shall be with
an insurance company or companies rated A-: VII or higher in Best's Guide
and admitted in the state of Washington (or issued as a surplus line by a
Washington surplus lines broker).
v. Coverages and Limits.
a) Insurance.
a. At all times during performance of the services, applicant shall
secure and maintain in effect insurance to protect the city from
and against all claims, damages, losses, and expenses arising
out of or resulting from the performance of this contract or
permit. Applicant shall provide and maintain in force insurance
in limits no less than that stated below, as applicable. The city
reserves the right to require higher limits should it deem it
necessary in the best interest of the public.
b. Commercial General Liability Insurance. Before this contract or
permit is fully executed by the parties, applicant shall provide
the city with a certificate of insurance as proof of commercial
liability insurance and commercial umbrella liability insurance
with a total minimum liability limit of one million dollars per
occurrence combined single limit bodily injury and property
damage, and two million dollars general aggregate. The
aggregate limit will apply "per job" or "per project." The policy
will include Washington stop gap (employer's liability)
coverage.
b) Commercial Automobile Liability Insurance.
a. If the applicant owns any vehicles, before this contract or
permit is fully executed by the parties, applicant shall provide
the city with a certificate of insurance as proof of commercial
automobile liability insurance and commercial umbrella liability
insurance with a total minimum liability limit of one million
dollars per occurrence combined single limit bodily injury and
property damage. Automobile liability will apply to "any auto"
and be shown on the certificate.
b. If the applicant does not own any vehicles, only "non -owned
and hired automobile liability" will be required and may be
added to the commercial liability coverage at the same limits
as required in that subsection above entitled "Commercial
General Liability Insurance."
c) Workers' Compensation. The applicant shall comply with workers'
compensation coverage as required by the industrial insurance laws
of the state of Washington.
3) Bond.
i. The applicant shall provide a minimum of $10,000 bond to assure successful
completion of the permitted work. The city may use this bond to complete
unfinished work or to correct any damage to existing infrastructure that is
caused by the permittee.
ii. The bond may be written for a single event, a specific duration or it may be
evergreen.
iii. The city reserves the right to request additional bonding should it be
determined that the amount of the work or risk exceeds the capacity of the
bond.
iv. If the bond is for a single event, the bond shall be returned to the permittee
upon successful completion of the work, as determined by the City.
v. This requirement is not in addition or instead of the bonding/insurance
requirements for a city capital improvement project.
H. Roads less than five years old can be cut, but will cost 150% of restoration fee with no PCI
discount.
I. The permittee shall notify the City upon completion of the work.
J. The city will provide any necessary inspections, during normal business hours, at the
applicant's expense. Should the permittee request inspections outside normal business
hours, or should additional inspections be necessary to ensure public safety, the permittee
shall pay for all additional inspection costs, including overtime costs.
K. Except as otherwise expressly provided herein, all costs of complying with this chapter shall
be borne by the applicant/permittee.
L. Upon receipt of a complete excavation permit application package, the City shall determine
and set forth all requirements, approve or disapprove the application, and, if approved, sign
and return it to the applicant with a permit number.
1) Each permit will state the estimated start and completion date of the permitted work.
i. 1-30 days ($100) - Permit
ii. 30 additional days ($100) — Permit extension
2) The City may grant permit extensions if requested by the permittee.
i. The permittee must request the permit extension at least 24 hours prior to the
stated completion date of the permit.
ii. Additional fees required by the requested extension must be paid prior to the
issuance of the extension.
3) The City may modify the permit if circumstances or conditions appearing after the
work is started make it impossible, dangerous or excessively inconvenient to the
travelling public for the permittee to comply with the requirements of the permit.
4) No person in violation of any requirement of this chapter shall be issued an
excavation permit, nor shall any contractor or agent apply for or be issued an
excavation permit on the person's behalf, until the outstanding violation is corrected.
i. The foregoing requirement is in addition to any penalty or remedy for violation
that may be imposed or sought by the city at law or equity.
8.72.050 Execution of work.
A. Work hours.
1) The permittee is encouraged to perform the work outside of normal commute times,
however, the permittee may make its case to the City for when the work needs to be
done.
i. Alternate hours, including nights or weekends, may be required for operations
that unduly disrupt traffic flows or represent potential safety hazards.
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B. A copy of the approved excavation permit shall be kept at the work site all times while such
work is in progress.
C. Permittee shall conform to any public notification requirements included in the permit,
contract documents, or approved plans.
D. All persons performing work shall take reasonable precautions not to damage or destroy
existing facilities.
E. Excavation requirements are referenced in the city's design standards, as posted on the
Department of Utilities and Engineering webpage and office.
1) Restoration.
i. Any disturbance of pavement (including damage caused by dumpsters or
construction drop boxes), sidewalk, driveways, landscaping, striping or other
marking, traffic loops or other devices, or any other feature shall be restored,
repaired or replaced to City standards or to the condition existing prior to the
disturbance, as modified by the requirements herein, if no restoration
standard exists.
a) Destructive cuts for utility locates shall be as small as possible and
shall be restored with flo-fill or low PSI concrete as approved by the
director.
ii. Replacement of roadway in lieu of restoration fee, may be requested by the
permittee and is permissible if agreed to by the City.
iii. Work areas, including adjacent areas that were cleared/grubbed or damaged,
shall be stabilized and reseeded within 14 calendar days, weather permitting
and seasonally adjusted, after the permit completion date.
iv. All excavations within the right-of-way shall be properly backfilled and shall
require a two (2) year warranty.
v. Sidewalks, curbs, gutters or combination curbs and gutters shall be removed
to nearest joint. All concrete used to replace curbs and gutters shall obtain a
minimum compression strength of 3,000 p.s.i. at 28 days. Curbs and gutters
shall be replaced to conform to the same shape, size and continuous gradient
as existing curbs and gutters.
vi. After backfilling is completed, and prior to repaving the cut, the contractor or
permittee shall remove all loose paving material and trim the edges of the
excavation at the street surface.
vii. Roads and sidewalks shall be restored to a safe, passable condition prior to
the work area being opened for public use.
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a) Temporary surfaces may be in place for no more than 72 hours
unless weather or other mitigating circumstances are present.
i. The City's approval, with conditions and allowable
duration, is required to leave temporary surface in
place for longer than 72 hours.
ii. Failure to comply with the City's conditions will
constitute a violation under this chapter.
iii. Maintenance of temporary surface will require a
separate encroachment permit if not completed as part
of the original work.
iv. If the temporary surface is not maintained in a safe and
acceptable manner, and the permittee does not
respond or is not able to respond in a timely manner to
maintain the temporary surface as required by the city,
the city may cause the work to be done.
1. The cost thereof, including any inspection costs
and administrative overhead incurred by the
city, shall be assessed against the permittee.
2) Repair of failed surface over excavation.
i. Should the pavement or sidewalk surface over any excavation sink or break
within two years after the excavation has been completed the permittee shall,
upon written notice from the City, immediately repair the installation or backfill
and have the pavement restored as specified by the City, within such time
period as may be specified by the City.
a) If the permittee does not respond or is not able to respond in a timely
manner as required by the City, the City may cause the work to be
done.
b) The cost thereof, including any inspection costs and administrative
overhead incurred by the city, shall be assessed against the
permittee.
F. Maintenance. The permittee shall maintain the work site in a clean and orderly manner.
G. Failure to complete work. If any part of the work referred to in this chapter is not completed
within the time set forth in the permit, the City may provide written notice to the person
performing the work to complete the work within forty-eight (48) hours thereafter.
i. If the work is not completed within this time period, the city may cause the
work to be performed at the expense of the applicant, including such work as
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restoring the work area to a safe and passable condition until the work can be
completed.
8.72.060 Review of Ordinance
This ordinance will be reviewed and revised as necessary, at least annually, by the City.
8.72.070 Fees.
A. All applicants and permittees subject to this chapter shall pay permit fees and be subject to
penalty fees if they violate the requirements of this chapter, except as provided below.
1) City projects or crews that are funded out of the general fund may be exempt from
paying permit fees, depending on the original source of the project funding, but must
comply with the remainder of this chapter.
2) City projects or crews that are funded from Fund 142, Arterial Streets Fund, may be
exempt from paying restoration fees, depending on the original source of the project
funding, but must comply with the remainder of this chapter.
3) Roads that the City plans to resurface or reconstruct within the following
18 months are exempt from the resurfacing fee. Notice shall be provided by
December 1 of each calendar year.
4) Restoration fee area shall be calculated in square feet, as follows:
i. $4.05/square foot of trench area, including an additional 3' zone of influence
on each side of the trench.
ii. Roads more than five (5) years old shall be adjusted by the road Pavement
Condition Index (PCI), represented in decimal form, to compensate for the
existing condition of the road when cut.
• Example: the restoration fee of a road with a PCI of 40 would be
discounted by 60%
iii. Roads less than five (5) years old will cost 150% of restoration fee except in
the case of emergency excavation they will be charged only 100% of the
restoration fee. Roads less than 5 years old, regardless of the reason for the
cut will not be adjusted by the PCI.
5) Revenues collected for restoration fee shall be deposited in the street reconstruction
account.
6) The following fees shall apply to right-of-way use permits:
i. Base administration fee = $100.00 (renewable monthly)
ii. Inspection fee - $60.00/hour with a one hour minimum.
ii. Penalty fees — Failure to comply with this chapter: $500/violation/day.
8.72.080 Violations — Civil Penalties — Appeals.
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A. General — Authority of City.
Whenever the City finds probable cause to believe violation of any of the provisions of this
chapter exists, the City shall notify the person responsible for the alleged violation in writing and
shall order the necessary corrections to be made. If such violation is not corrected within the
period of time established by the City, the City may invoke the remedies set forth in this section
and/or any other remedy available under state law or city code. The provisions in this section
are not exclusive remedies. The City reserves the right to take any, all, or any combination of
these actions against any person violating the provisions of this chapter, together with any other
action available under state law or city code.
B. Procedure — Notification of Violation — Effect of Violation — Appeals.
The City shall notify any person found to be in violation with this chapter of the scope of
violation, the provisions violated, the date of violation (if known), and the required correction.
(1) Said notice of violation and correction shall be in writing and may be hand -delivered,
faxed or e-mailed to the person or persons responsible for the violation. The notice
shall advise such person(s): (a) that failure to correct the violation within the time
specified will subject the violator(s) to imposition of a civil penalty fee up to $500 per
violation for each day the violation remains uncorrected; (b) that all violations shall be
corrected and all assessed penalties paid prior to issuance of another right-of-way use
permit to such persons(s); (c) that the city reserves the right to invoke any other remedy
available under state law and city code, including but not limited to, filing of criminal
charges pursuant to subsection C of this section; and (d) appeal rights available to the
person or persons receiving the notice of violation and correction as set forth in
subsection (4) below.
(2) Should that person fail to correct the violation within the period of time directed, the
director is authorized to assess against the person or persons causing such violation a
civil penalty fee up to $500 per violation for each day the violation remains uncorrected.
Written notice of the assessed penalty fee shall be hand -delivered, faxed or e-mailed to
each person determined to be responsible for such violation.
(3) All violations shall be corrected and all penalties assessed must be paid prior to the
city's issuance of another right-of-way use permit to such person.
(4) Appeal of administrative decision. Any person aggrieved by a decision of the
administrator denying a permit, revoking a permit, imposing any condition on a permit
not authorized by this chapter, or issuance of a notice of violation and correction under
this chapter, shall have the right to appeal to the City Manager in accordance with the
procedure set forth in YMC 15.16.040 and 15.16.050. Decisions of the City Manager
may similarly be appealed to the Yakima County superior court in accordance with the
process and procedure set forth in YMC 15.16.060.
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MEMORANDUM
To: Honorable Mayor and Members of the Yakima City Council
From: Tony O'Rourke, City Manager
Date: June 11, 2014
RE: Proposed ordinance regulating excavations in public rights-of-way
The City of Yakima has 800 lane miles of roads with a replacement value of $450
million. Unfortunately, the quality of our City roads is not good. The City's current
Paving Condition Index (PCI) is a 54 on a 100 point scale. Three percent of the City's
streets are technically failed, with 24% projected to be in a failed state by 2020 if they
are not improved. It costs 300% more to rebuild a road versus maintaining adequate
roads through scheduled grind and asphalt overlay. The potential cost to reconstruct
24% or 190 lane miles of failed roads is $102 million dollars.
The importance of the City's roads is reflected in the 2013 Citizen Survey where 75% of
the respondents believe investment in the City's infrastructure is essential. This opinion
was validated in August 2013 when 72% of Yakima voters supported a City Charter
amendment mandating the City to invest at least $2 million annually in road construction
and rehabilitation.
In response to the public's demand for road improvements, the City Council invested $5
million in 2013 to resurface 28 lane miles and $15 million in 2014 to resurface 92 lane
miles.
In the interest of protecting and preserving the City's road asset, the City, in 1983,
adopted Ordinance 2719 requiring a street restoration fee to restore the street to its
original condition after excavating any public street. Unfortunately, despite the adoption
of Ordinance 2719, no street restoration fee related to street excavations has been
imposed or collected in the past 30 years. In that same period, the condition of the
City's roads have continued to deteriorate due to street excavations, heavy loads, and
insufficient road investments.
Currently, entities needing to excavate City streets to install utility lines and conduit
simply pay an administrative permit fee to be in the public right-of-way. This fee and the
patching of the street cut does not compensate the public for the long-term damage
caused by street cuts. Over seventeen nationwide studies have produced compelling
evidence that no matter how well a street cut is patched, there is permanent damage to
the road beyond the street excavation. Street cuts simply degrade and shorten the life
of streets.
Staff believes the reduction of our streets' quality and lifespan beyond normal wear
should be paid by the entity that inflicts the street damage. Currently, utility taxes,
property taxes, and franchise fees pay for general city services and do not cover the
cost of replacing or repaving city streets. Therefore, a street excavation fee is an
equitable means of paying to repair damaged city streets related to multiple street
excavations.
A street excavation restoration fee is also an effective incentive for utility companies and
the City utilities to coordinate their street cuts with the City's road repaving schedule,
given there is no required street restoration fee within 12 months of a planned
resurfacing or reconstruction of a city street. The city of Sacramento, California has
experienced an 80% increase in coordination between utility companies' road cuts and
Sacramento's road repaving schedule since the passage of their street cut restoration
fee ordinance, thereby mitigating unnecessary road damage.
The restoration fee will be used to pay for street resurfacing where there is permanent
damage beyond the area of the street cut. This is particularly critical given the City will
have invested $20 million over the past two years to improve City streets. It would be
counterproductive to see these improved streets degraded and service life diminished
by allowing street cuts without a restoration fee policy in place to protect the quality and
service life of our roads.
In partnership with the City's public and private utility enterprises (gas, electric, water,
waste water, irrigation, cable tv), the attached ordinance has been drafted for City
Council review and consideration. The public and private utility companies recognize
the importance of protecting and preserving Yakima's roadway infrastructure and
investment given it is the backbone to our local economy and public mobility.
Key elements of the proposed street excavation ordinance include:
• Requires a $100 excavation permit — Type A for work 1-30 days and Type B
for work greater than 30 days
• Separate inspection fee of $60 per hour
• Requires appropriate insurance and bonding
• Requires conformance with federal and state safety regulations when working
in the City right-of-way
• Permittee is encouraged to perform street work outside normal commute
times
• Permittee street restoration patch shall require 2 -year warranty
• Road restoration fee shall be:
o $4.05/square foot of trench area and additional three foot zone on
each side of cut
o Roads less than five years old will cost 150% of restoration fee with the
exception of emergency cuts
• Road restoration fee will be adjusted or discounted based on road PCI
condition. For example, the restoration fee of a road with a PCI of 40 would
be discounted 60% from $4.05 to $1.62 per square foot.
• Roads less than five years, regardless of the reason for the cut will not be
adjusted or discounted by a PCI
While neither private utility companies, or our own City utilities are enamored with the
prospect of a street restoration fee, I believe they understand that protection and
preservation of our roads is critical to our agricultural based economy and mobility.
While an argument could be made this street cut fee is simply an additional expense
that will be passed onto both public and private utility customers, it will ensure the
equitable cost distribution of repairing our streets when our streets are damaged by
excavation. In addition, the street cut fee does not "double tax" City of Yakima residents
and businesses since many of the utilities do not have a contiguous customer base with
the City. For example, the gas, electric, and private water and irrigation utilities all have
customers in both the city and county. Accordingly, why should a City of Yakima
resident assume 100% of the cost associated with utility generated street cuts, when a
significant portion of the utility customer base resides outside the City. The costs for
utility street cuts should be borne by the utilities' entire customer base; not just city of
Yakima customers.
Finally, the argument that a street cut is not business friendly denies the necessity for
the fee to begin with — to protect and preserve the most fundamental asset of all
businesses — roads. Without adequate road infrastructure and mobility, goods,
services, and customers cannot access businesses.
The City has clearly been very pro-business as exemplified by the following recent
investments to enhance business success in Yakima:
• $20 million in arterial street overlay improvements
• $11 million for airport taxiway improvements
• $14.6 industrial wastewater line for food and beverage processing
• $2.4 million in Mill Site environmental restoration and infrastructure
improvements
• $3.0 million for North First Street improvements
• $300,000 in Downtown Master Plan and Retail Strategy Plans
• 13% increase in building permits over 2013