ORDINANCE NO. O97-785

AN ORDINANCE TO AMEND CHAPTER 13.20 OF THE METROPOLITAN CODE OF LAWS (EXCAVATIONS AND OBSTRUCTIONS).

WHEREAS, it is in the best interest of The Metropolitan Government of Nashville and Davidson County to revise and update Chapter 13.20 of the Metropolitan Code of Laws (Excavations and Obstructions).

NOW THEREFORE, BE IT ENACTED BY THE COUNCIL OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY:

Section 1: That Chapter 13.20 of the Metropolitan Code of Laws (Excavations and Obstructions) is hereby repealed in its entirety and the following substituted in lieu thereof:

13.20.010 Definitions.

"Director" means the Director of the Metropolitan Government Department of Public Works or his designee.

"Excavation" means the digging of any ditch, drain, trench, hole; or similar activity; whether permanent or temporary.

"Obstruction" means any structure, embankment, device, item or thing placed or existing within the right-of-way of the Metropolitan Government which hinders, impedes or affects the flow of traffic, whether such obstruction is permanent or temporary.

"Person" means any and all persons, natural or artificial, including but not limited to any individual, firm, association, partnership or corporation.

13.20.020 Permission required.

No person shall dig or cause to be dug any excavation nor cause any obstruction to be constructed or placed in, on, over or under any street, road, alley, sidewalk or other public way., nor shall any person close or occupy any portion of the public right of way by means of or in connection with any excavation or obstruction within the jurisdiction of the metropolitan government without having first applied for and obtained from the director a permit to do so

13.20.030 Permit.

Permits shall be issued by the director to any person qualified under section 13.20.050 of the metropolitan code, meeting all other requirements of this chapter, and upon receipt of the appropriate permit fee.

In connection with the issuance of a permit under this chapter, the director shall have the authority to close temporarily or to authorize temporary closure of any street, road, alley, sidewalk, or any other public way or part thereof when, in the director's opinion, the closing is necessary. No public way shall be closed for any purpose without first obtaining a permit from the director.

In connection with the issuance of a permit under this chapter, the director may install, or may require installation and maintenance of, traffic control devices. Said devices and their placement shall meet the requirements of the latest edition of the Manual for Uniform Traffic Control Devices (MUTCD).

A. Excavation Permits

Each separate excavation shall require a permit. Excavated areas of up to five square meters (6 square yards) of surface area shall constitute an excavation. Trench excavations running parallel to traffic shall require a permit for each ten linear meters (33 linear feet). The fee for excavation permits shall be $30.00 each. Any excavation permit requested and issued involving roadway pavement on any roadway that has been newly constructed or resurfaced within the past five (5) years in addition to the other fees provided in this section shall require the payment of a pavement assessment fee. The pavement assessment fee shall be equal to $500 plus 20% of the cost to restore the excavation per existing pavement restoration specifications of the department of public works. The cost shall be based on the average cost of similar work performed by Metro in the previous year and shall be updated annually by the director of public works. Each year on or about January 1st, the director of public works shall publish the pavement assessment fee.

All excavation restoration will be the responsibility of the permittee and shall conform to the specifications of the department of public works; and shall be subject to the approval of the Director of Public Works.

B. Obstruction Permits

1 . Permits shall be issued for temporary obstructions only. Permanent obstructions are prohibited. Except as hereinafter provided, the fee for an obstruction permit shall be $10.00 per day per location.

2. The fee to place a trailer or dumpster in the public right of ways is $10.00 per day, not to exceed $1,000.00 per year, per location.

C. Permit Fees for Parking Meter Occupancy

When an excavation or obstruction prevents the use of parking spaces regulated by meter, a parking meter occupancy fee of $7.50 per meter per day shall be paid by the permittee.

D. Right of Way Temporary Closure Permits and Fees

In addition to any other fees required by this chapter, permits requiring the temporary closure of any portion of the Metropolitan Government's right-of-way shall be subject to the following fees:

Length of Closure Application Inspection
3 days or less $15.00 $0.00
4 days through 10 days $15.00 $10.00
11 days through 20 days $15.00 $20.00
21 days through 30 days $15.00 $30.00
31 days through 45 days $15.00 $45.00
46 days through 90 days $15.00 $50.00 plus $1.00/day beyond 50 days

Closures in excess of 90 days are prohibited.

Utilities and other companies having franchise agreements with metro, city departments, and contractors acting as an agent for franchisee or city departments, who are experienced in proper traffic control procedures and approved by the director may obtain an annual permit for each construction or maintenance vehicle used in closures. The annual permit will exempt the permittee from individual closure fees provided all other provisions of this section are met. The annual permit fee is $100.00 per vehicle.

E. Waiver

Fees may be waived by the director for the following:

1 . Metro departments and their contractors performing roadway or roadway feature related maintenance, repair, or construction.

2. Firms or agencies required by Metro to relocate utilities.

3. Activities of federal, state, or local governments.

4. When the director finds that it is necessary to close the public way for the immediate protection of public safety.

13.16.040 Penalty for violation.

In addition to any other penalty imposed for failure to obtain a permit required under this chapter, is commenced before a permit is issued, the permit fees for any permit subsequently issued for that activity shall be tripled.

13.20. 050 Permit-Bond and insurance required.

A. No excavation or obstruction permit shall be issued to any person until such person shall first have posted a payment and performance bond satisfactory to the director. The amount of the bond shall be equal to the estimated cost of the work, but shall not be less than $40,000.

B. It shall be the responsibility of the permittee to furnish to the department of codes administration a permit bond in the amount of forty thousand dollars ($40,000), conditioned to conform to the requirements of this chapter and all applicable laws, ordinances, rules, and regulations of the metropolitan government relating to installations for which a permit is required, or for work performed by the principal for which a permit should have been obtained; and to indemnify the metropolitan government and property owners against any and all loss by reason of the failure of such contractor to comply with such laws, ordinances, rules and regulations. Such bond shall be continuous and may not be canceled without at least 10 days' prior notice, in writing, to the director of the codes administration. The liability of the surety shall continue to attach to work performed pursuant to any permit issued prior to the termination date of the bond even if the noncomplying act should occur after the termination date of the bond. The liability of the surety for any and all claims, suits or action under this bond shall not exceed the bond penalty of $40,000. The bond shall be issued by a U.S. Treasury-listed corporate surety or a Tennessee domestic insurance company on forms provided by the department of codes administration.

C. It shall be the responsibility of the permittee to furnish a current certificate of public liability insurance issued by a Tennessee-licensed company which provides a minimum of one million dollars per occurrence, except municipalities and other political subdivisions of the State of Tennessee shall have furnished certificate of liability insurance in the amount equal to or greater than minimum limits of liability insurance required for governmental entities in the Tennessee Governmental Tort Liability Act. Tennessee Code Annotated 29-20-403. The certificate of insurance shall name the Metropolitan Government as an additional insured and may not be canceled without at least thirty days' prior notice, in writing, to the director.

13.20.060 Hours of work-Regulations.

Every person holding a valid permit from the director of public works to perform an excavation or to otherwise cause any obstruction in, on or under any street, road, alley, sidewalk or other public way within the jurisdiction of the metropolitan government shall perform the work or activity permitted only within the hours stipulated on such permit. Work not completed during any stipulated period of hours shall be bridged, backfilled or otherwise rendered usable for pedestrian or vehicular traffic, as specified by the director of public works, until the next period of hours during which work is permitted. Each violation of the permitted hours of work shall constitute a violation of this section. Any person found guilty of two or more offenses shall be disqualified for obtaining further permits for a period not to exceed six months.

13.20.070 Utility manholes-Testing for flammable or toxic gases-required.

No person engaged in working in and around any utility manhole shall enter any such utility manhole until testing by instrument or other acceptable method has been performed to determine whether or not such manhole is free from toxic or flammable gases and liquids. When tests indicate the presence of toxic or flammable gases or liquids, the manhole shall be properly ventilated prior to the entering of the manhole by any person. Tests shall be repeated at such intervals as are necessary to make certain that toxic or flammable gases or liquids do not recur in hazardous quantities.

13.20.080 Utility manholes-Two work people required at all times.

No work shall be performed in or about any utility manhole in or adjoining any highway, street, alley, sidewalk or any public place, with less than two persons present at all times.

13.20.090 Barricades required when.

Any person who shall dig or cause to be dug any excavation or cause obstruction to be placed in, on, under, across or adjoining any street, alley, road, sidewalk or other public way or shall perform work in and around any utility manhole in or adjoining any public way within the jurisdiction of the metropolitan government shall have the same guarded at all times with a substantial barricade complying with the - requirements of MUTCD and approved by the director, sufficient and suitable to warn persons traveling on or using such street, road, alley, sidewalk or other public way of the presence of such excavation or utility manhole and against danger therefrom.

13.20. 100 Unguarded excavations prohibited.

It is declared to be a nuisance and unlawful for any person to make any excavation or to establish any opening adjacent to any sidewalk or public right-of-way within the jurisdiction of the metropolitan government without the erection of barricades or other proper precautions to prevent danger to persons or vehicles passing along such sidewalk or public right-of-way. Each day that such excavation or opening shall remain without barricade or other proper precaution shall constitute a separate offense.

13.20.110 Night work-Warning lights required.

A. Any person who shall dig or cause to be dug any excavation or cause any obstruction to be constructed in, on, under, across or adjoining any street, road, alley, sidewalk or other public way or shall perform work in and around any utility manhole in or adjoining any public way within the jurisdiction of the metropolitan government shall, in addition to the barricades required by Section 13.20.090, post or otherwise place red or amber lights at the ends and sides of each excavation, utility manhole or other obstruction during the entire night, and if such excavation or other obstruction shall extend more than fifty feet along such street, road, alley, sidewalk or other public way, then additional red or amber, lights shall be placed each twenty-five feet or fraction thereof. Where excavations or obstructions shall extend across any street, road, alley, sidewalk or other public way, red or amber lights shall be placed at six-foot intervals along such excavation or other obstructions.

B. All such lights shall be of a type approved by the director of public works and shall be secured in such manner as not to be displaced by winds or storms.

13.20.120 Interfering with warning lights prohibited.

No person shall break, molest, put out, remove or in any manner interfere with any warning lights required by this chapter.

13.20.130 Refilling excavation sites.

Every person who shall dig or cause to be dug any excavation in, on, under or across any street, road, alley, sidewalk or other public way within the jurisdiction of the metropolitan government shall carefully refill all such excavations by placing and firmly compacting with crushed stone in paved areas and roadway shoulders pending replacement of pavements or other improvements; and shall fill with selected earth materials in unpaved or otherwise unimproved areas. The director may in his discretion require the use of concrete or flowable fill in lieu of crushed stone backfill.

13.20.140 Replacement of sidewalks, pavements and other special structures required-Specifications.

A. Every person excavating in, on, under or across any street, road, alley, sidewalk or other public way within the jurisdiction of the metropolitan government shall replace all curbs, gutters, sidewalks or other special structures disturbed, displaced or removed, at the expense of the person making the excavation and in accordance with the standard requirements and specifications of the department of public works. (No additional permit fee shall be required for such replacement, other than as specified in Section 13.20.030.)

B. Pavements, other than curbs, gutters and sidewalks, removed or damaged as a result of excavating in, on, under or across any street, road, alley or other public way within the jurisdiction of the metropolitan government shall be replaced by and at the expense of the person making such excavation. The pavement replacement shall be performed by a reputable paving contractor within thirty days of backfilling the excavation; or within such shorter or longer time as the Director may require. All pavement replacement under this subsection shall be made in accordance with the requirements and specifications of the department of public works and shall only be performed during the presence of inspection personnel of the department of public works.

13.20.150. Regulations.

The Director shall have authority, with the approval of the Mayor, to implement this chapter by appropriate rules and regulations.

Section 2. That this Ordinance shall take effect from and after its final passage, the welfare of The Metropolitan Government of Nashville and Davidson County requiring it.

Sponsored by: Vic Lineweaver

LEGISLATIVE HISTORY

Introduced: May 20, 1997
Passed First Reading: May 20, 1997
Referred to: Public Works Commitee
Passed Third Reading: June 3, 1997
Passed Second Reading: June 17, 1997
Passed Third Reading: June 24, 1997
Approved: June 24, 1997
By: Mayor