§ 4-11. Excavations.

(a)

Permit required. It shall be unlawful for any person to make any excavation or opening in any street, alley, easement or public right-of-way of the city without first having obtained a permit from the city engineer. A person must apply for a permit at least one working day prior to the proposed excavation, unless an emergency exists in which immediate notice must be given to the police dispatcher on duty giving the exact location of such excavation, the purpose of the excavation and the person, company or firm making the excavation.

(b)

Application for permit. The application for a permit to make any excavation or opening in any streets, alleys, easements or public rights-of-way of the city, except for the purposes of setting utility poles, shall be made in writing to the city engineer at least one working day prior to the proposed excavation, and shall state clearly the name of the street, alley, easement or right-of-way in which it is proposed to make such excavation; the exact location where such excavation is proposed, the purpose for making the opening; and the name and address of the person, company or firm proposing to make such excavation. Where the proposed excavation is extensive in the opinion of the city engineer, a plan for such work shall be submitted with the application. Such plan shall show adequate dimensions to indicate the exact location of the proposed excavation.

(c)

Permit fee. Upon filing of an application to the city engineer for a permit to do excavation work within the city, a permit fee in the amount as prescribed in Appendix 1 of this Code of Ordinances shall be paid. Legally franchised utility companies within the City of Terrell, or their agents, will be exempt from such permit fees.

(d)

Bond required. No person, company or firm, except legally franchised utility companies or their agents, shall make any excavations or embankments within a public right-of-way in the city without executing and delivering to the city a bond in the amount of the estimated cost of repair or $2,000.00, whichever is more, payable to the City of Terrell, Texas, with a good and sufficient corporate surety thereon, authorized to do business in the State of Texas. A cash deposit will be accepted in lieu of a bond issued by a corporate surety. The city engineer shall be responsible for estimating all costs of repairs in determining the amount of bond required.

This bond shall be conditioned that all work shall be done in a good and workmanlike manner and that such person, company or firm shall faithfully and strictly comply with any specifications, rules or regulations of the city governing excavations, and that the city shall be fully indemnified and be held whole and harmless from any and all costs, expense or damage on account of any injury or damage to any person or property that may arise out of or be occasioned by the performance of such work.

The bond required herein shall substantially be in the following form:

THE STATE OF TEXAS
COUNTY OF _______

KNOW ALL MEN BY THESE PRESENTS:

THAT WE, _______, as Principal, and _______, as Surety, are held firmly bound unto the City of Terrell, Texas, in the penal sum of _______, good and lawful money of the United States of America, well and truly to be paid in Terrell, Texas, and for the payment of which we and each of us hereby bind ourselves, our successors, our heirs, executors, administrators and assigns, jointly and severally, firmly by these presents:

THE CONDITIONS OF THIS OBLIGATION ARE SUCH THAT

WHEREAS, the above bounden principal desires to engage in business in the City of Terrell, and in the course of such business anticipates that it will be necessary to open excavations in public streets, ways, places, sidewalks, parks, plazas, alleys, or other public places, and will apply to the City Engineer of the City of Terrell prior to making each such excavation for permission to do so;

NOW THEREFORE, if said Principal, after opening such an excavation and until one year after the same is finally restored and accepted, shall indemnify and save harmless the said City of Terrell from any and all repair and maintenance, expenses, losses, claims for damages, judgments, and other costs of any nature which may arise, be incurred, be sustained by, or be obtained against said City by reason of the existence of such excavation made by the Principal herein in a public place, and if the Principal herein shall at all times faithfully, fully, and completely comply with all requirements set out in the permit and any other governing regulations pertaining to opening of excavations in the City and things to be done prior thereto and thereafter, then this obligation shall be null and void; otherwise to remain in full force and effect; provided, however, this bond is executed by the Surety on the condition that its liability shall be limited by and subject to the conditions and provisions hereinafter contained.

Successive actions may be brought in this bond for successive breaches of its conditions, or any of them; provided, however, that the sum total of all liability of the Surety on any one or all of such actions shall not exceed the sum of _______.

The liability of the Surety under this bond shall cease and terminate of its own force and effect one year from the date of acceptance of work by city, saving and excepting for expenses, claims for damages, judgments or other costs which may arise, be incurred, be sustained by or to be obtained against said City by reason of an excavation in a public street, alley, easement or right-of-way or other public place made prior to said date of termination.

IN WITNESS WHEREOF, the parties hereto have executed this instrument this the _____ day of _______, 19 ___.

(SEAL)

_____
Principal

By: _____

(e)

Insurance required. Before any person, company or firm shall be issued a permit to excavate, he shall have filed with the city engineer a policy of public liability and property damage insurance written by an insurance company duly authorized to do business in the State of Texas, and in standard form approved by the Board of Insurance Commissioners of the State of Texas, with coverage provisions insuring the public from any loss or damage that may arise from any such excavation. The amounts of recovery shall be in limits not less than $500,000.00 combined single limit coverage for bodily injury and property damage. Such insurance policy shall also contain an endorsement that cancellation of such policy shall not become effective before 30 days written notice to the city of such termination or cancellation.

(f)

Issuance of permit. When the bond shall have been accepted, evidence of insurance presented, and the fees for such permit have been paid, the city engineer shall then issue a permit for the excavation described in the application, provided there is not just cause to deny the permit. The permit shall contain a statement of requirements to be met by the permittee in restoring surfaces of streets, alleys, easements and rights-of-way and for protecting the public as deemed necessary by the city engineer. The permittee shall be fully responsible for safeguarding persons or property from damages or injury, and all of the requirements of the permit stated by the city engineer shall not relieve the permittee from such responsibility should such requirements prove to be inadequate under the circumstances. When the permit is issued, the permittee may then proceed with the work in the exact location named in the application, and in no other place.

A permit may be denied or revoked if it is determined that the proposed excavation will substantially interfere with traffic, that proper safeguarding measures or precautions may not be taken or are not being taken, or that the contractor has previously failed to comply with governing regulations under another permit in which case a permit will not be issued until all of the previous conditions have been resolved.

(g)

Permit to be kept accessible. The permittee shall keep a copy of the permit issued for any excavation work on any streets, alleys or rights-of-way at all times at the site of the work, and such permit shall be accessible to the city engineer or his authorized representatives.

(h)

Accomplishment of work. All of the work done by the permittee in excavating or opening streets, alleys or rights-of-way, in backfilling excavations and in restoring street surfaces, shall be in accordance with the terms of the permit issued by the city engineer. The city engineer shall be notified during regular office hours at least two hours before commencement of work. The city engineer shall issue whatever directions regarding the work as he deems necessary to the end that the streets, alleys and rights-of-way of the city shall not be unduly disturbed and traffic thereon obstructed and the permittee shall comply with all directions. The directions given by the city engineer shall not relieve the permittee from any responsibility for the protection of persons and property should such directions prove to be inadequate under the circumstances.

(i)

Inspection and acceptance of work; emergency conditions. Upon completion of all work described in the permit, the permittee shall notify the city engineer, who will then inspect such work. If the permittee has failed to comply with the terms of the permit and has not left the street, alley or right-of-way clean and in good state of repair satisfactory to the city, then the city engineer shall give written notice to the permittee, unless an emergency condition exists, describing the work to be done and requiring such work to be completed within a specified time. When it shall appear that any such excavation or work area constitutes an immediate and serious danger to life or property, the city engineer may, with the consent and approval of the city manager, order that immediate action be taken to remedy the dangerous condition within 24 hours. When such emergency measures are ordered to be taken, notice of such order shall be given personally to the owner or left at his usual place of business or abode, when such notification can be accomplished without increasing the danger to life or property. In the event that such written notice would create such delay as would materially increase the danger to life or property, then such notice need not be given.

If the work is not completed within a specified time or if an emergency condition exists, then the city engineer may cause the work to be done and then shall file an itemized statement in the form of an affidavit, duly sworn to, of all such work performed and all costs and expenses incurred and paid by the city in connection therewith. Such affidavit shall also state that such costs shall be paid within 30 days from the date of such affidavit. Should the excavator fail or refuse to pay the amount due within the 30 days, the city may file a claim with the surety company for all expenses incurred.

(j)

Warning devices required. Any person, company or firm making an excavation or embankment of any street, alley, easement or right-of-way in the city shall provide, erect, place and maintain all warning signs, lighting devices, barricades and channelizing devices required in Part VI - Traffic Controls for Street and Highway Construction and Maintenance Operation of the Texas Manual On Uniform Traffic Control Devices for Streets and Highways published by the state department of highways and public transportation.

(Ord. No. 1466, 8-19-86)