[Adopted 3-20-2009 by Ord. No. 446]
For the purpose of interpreting this article, certain terms are herein defined. Words used in the present include the future. The singular includes the plural and the plural includes the singular.
PUBLIC UTILITY
Any person, partnership, corporation, LLP, LLC, political subdivision, government, government agency or legal entity other than the Town of Bethany Beach which provides public utility service at the wholesale or retail level, including but not limited to, natural gas electric supply, electric distribution service, telephone cable television, Internet service, water supply or distribution service and sanitary sewage collection, treatment, transport and disposal services.
RIGHT-OF-WAY
Legal right of passage over another person's property. The land used by a public utility for roads, communication lines power lines, pipelines, etc.
TOWN
Town of Bethany Beach.
It shall be unlawful for any person, firm or corporation to cut into, open or excavate in or under the bed of any street, road, highway, lane, alley, avenue, sidewalk, curb or other public way within the corporate limits of the Town for the purpose of installing therein or thereunder any poles, pipes, mains, wires or conduits or for any other purpose without first obtaining from the Town a permit to cut into open or excavate such street, road, highway, lane, alley, avenue, curb, sidewalk or other way except as hereinafter provided.
If any work as described in § 493-15 must be performed on an emergency basis outside of normal Town business hours and prior to obtaining the required right-of-way permit, the utility or its contractor must contact the Bethany Beach Police Department before starting such work and obtain a right-of-way permit retroactively on the first regular business day thereafter.
Right-of-way permits shall be granted only upon compliance with the following express provisions:
A. 
Any person, firm or corporation desiring to cut into, open or excavate in or under the bed of any street, road, highway, lane, alley, avenue, curb, sidewalk or other public way for any purpose as aforesaid shall first make written application to the Town for a right-of-way permit to conduct such work, stating in such application the name of the street, the name and present or past known address of the person, firm or corporation on whose behalf the cutting into, opening or excavating is to be done, the direct and indirect cost or estimated cost of such work, including but not limited to the cost of labor, materials and equipment rental, the location on such street where such opening or excavation is to be made, the purpose of the opening or excavation, the length, the width and depth of the opening or excavation and the date when such work will be completed.
B. 
Each such application shall be accompanied by a permit fee of 10% of the direct and indirect cost or estimated cost as set forth in the application, payable to Town of Bethany Beach, which said right-of-way permit fee shall not be returned; provided, however, that such right-of-way permit fee shall only be required in cases where the opening or excavation is made in an improved surface, including but not limited to paved streets and concrete sidewalks. Right-of-way permit fees shall be placed in a municipal street improvement fund for use in street improvements within the corporate limits of the Town.
C. 
Any person, firm or corporation applying for a right-of-way permit must sign an agreement with the Town that will include, among other things:
(1) 
A promise to fully comply with the terms of this article.
(2) 
A promise to indemnify, hold harmless and defend the Town, its officers and employees from any and all claims for personal injury, including death or damage to property resulting from, relating to, or arising out of the issuance of a permit to the applicant pursuant to this article or any actions or activities in relation thereto, by the applicant or others, excepting only such claims due solely to the negligence of the Town, its officers and employees. Such indemnification shall not be affected or diminished by insurance provided by the applicant.
D. 
Any person, firm or corporation applying for a right-of-way permit shall file with the Town a general liability policy or certificate of insurance issued by an insurance company authorized to issue such policy in the State of Delaware naming the Town of Bethany Beach as an additional insured, which policy or certificate evidences that the applicant has procured comprehensive general liability insurance providing coverage for legal liability and customarily covered expenses for bodily injury and property damage, including but not limited to liability for bodily injury and property damage caused by, related to or arising out of operations performed by the applicant or by the applicant's independent contractors or arising out of acts or omissions of the applicant in connection with his general supervision of such operations (contractors'/owners' protective liability insurance) occurring after operations have been completed or abandoned (completed operations insurance) and assumed under contract with the Town (contractual liability insurance), which policy shall be endorsed to delete from the contractual liability coverage any exclusion for actions on a contract for third-party beneficiary arising out of a project for a public authority and which policy shall include coverage for all possible liability. Said policy shall be in a form and content satisfactory to the Town Solicitor and shall provide that the policy shall not be changed or canceled until the expiration of 60 days after written notice to the Town and that it shall be automatically renewed upon expiration and continued in force unless the Town is given 60 days' written notice to the contrary. Said policy shall insure the Town of Bethany Beach and the applicant and shall cover all operations relative to the excavation reconstruction and restoration therefor. Said policy shall have limits of liability of not less than $1,000,000 for bodily injury to each person and in the aggregate for each accident and property damage liability of not less than $100,000 for each accident.
E. 
Certification that the applicant has notified all other applicable utilities of the proposed work to determine if simultaneous installations of other utility services can be made so as to limit the amount of disturbance to the right-of-way.
F. 
Proof of current and valid licenses and permits for operation as may be required by the federal or state government. The applicant shall have a valid business license issued by the Town.
G. 
Any person other than a public utility company applying to cut a paved street shall furnish a corporate surety bond executed by a reputable surety company licensed to do business in the State of Delaware. Such bond shall cover all street opening and restoration work that will be performed under the permit. The bond shall be in effect for a thirty-six-month period. The amount of the bond shall be 150% of cost of the street opening and restoration work.
A. 
All utility right-of-way construction permits are subject to revocation by the Town after written notice for:
(1) 
Violation of any condition of the permit; or
(2) 
Violation of any provision of this article or any other applicable chapter or article of this Code or any Town ordinance or policy relating to the work; or
(3) 
The existence of any condition or the doing of any act constituting or creating a nuisance or endangering the lives or property of others.
B. 
Written notice of such violation shall be served upon the person to whom the permit was granted, his agent or employee engaged in the work. Such notice shall contain a brief statement of the reasons for revoking such permit. Notice may be given either by personal delivery to the person or by United States mail, addressed to such person to be notified. If notice has been given by personal delivery, such notice shall also be provided by United States mail within five business days.
A. 
The applicant for any utility construction work covered by this article shall be whatever utility company owns the utility service even if that utility company uses an authorized agent or subcontractor to apply for the right-of-way permits and/or perform work on behalf of the utility company. As applicant, the utility company shall be responsible for all work performed and compliance with all aspects of this article. The Town will contact the utility company whenever adjustments or corrections in the work are required, regardless of whether the work is actually performed by the utility company or by its subcontractors. A copy of the approved right-of-way permit shall be on the job site at all times.
B. 
The applicant shall be responsible for location of all existing utilities and shall contact Miss Utility, as necessary. Any damage to existing utility services or structures such as curbing, sidewalk, drainage facilities, utility boxes, etc. shall be replaced and/or repaired by the applicant at no expense to the Town or property owner. The Town shall determine the extent of restoration required and the method of correction. Any and all work not completed within a reasonable period of time not to exceed 30 days may be completed by the Town. The applicant shall reimburse the Town for the cost of such work as invoiced by the Town to the applicant.
C. 
All work and materials relative to trenching, boring, street repair and other restoration work within the right-of-way shall be of the best quality as specified by the Town street specifications in this chapter and shall be at all times subject to inspection by the Town. The applicant shall provide reasonable and necessary facilities for such inspection. Except in the case of emergencies, the applicant shall notify the Town 48 hours prior to any work performed prior to the permit to allow sufficient time to assign inspectors to inspect said work. Failure to provide the required notification may result in the Town requiring the applicant to undo, take apart, or uncover portions of work at the applicant's expense.
D. 
Inspection of work by the Town does not relieve the applicant of the responsibility of, for the quality of all work and materials, safety and liability for loss, damage, or injury to persons or property. The applicant is required to observe all local state and federal safety codes. Any omission or failure on the part of the Town to disapprove or reject any defective work or materials shall not be construed to be an acceptance of any defective work or materials.
E. 
The Town shall have the right to suspend work if the applicant does not comply with this article, the Town's street specifications, or any other codes, specifications, regulations or policies of the Town. Work may not proceed until the Town is satisfied that all problems have been adequately addressed and the applicant has received written permission from the Town to proceed.
F. 
The applicant shall be responsible to maintain proper storm drainage flows during the course of all work. Erosion and sediment controls around work sites shall be in accordance with the State of Delaware Department of Natural Resources standards and regulations on erosion and sediment controls and the Sussex County Soil Conservation Service regulations. The applicant shall be responsible for all water damage and associated restoration and costs associated with the work.
G. 
The applicant shall keep the work area and surrounding area free from accumulation of waste materials or rubbish caused by work under the permit. At the completion of the work, the applicant shall remove from the site all materials, rubbish, tools, equipment, machinery and all other objects associated with said work. Streets shall be kept clean and free of debris at all times. Dust control measures shall be initiated as conditions require. Upon failure of the applicant to keep the site of the work clean to the satisfaction of the Town, the Town may, upon 24 hours' notification to the applicant, remove any rubbish, materials, tools or equipment as deemed necessary. The applicant will reimburse the Town for the cost of such work, as invoiced by the Town to the applicant.
H. 
When the work is not completed by the date of expiration as shown on the right-of-way permit, the Town may take steps to backfill the trench and replace the street surface over the opening for which the right-of-way permit has been issued upon proper notification from the Town to the applicant. The applicant will reimburse the Town for the cost of such work, as invoiced by the Town to the applicant.
A. 
Open cuts in paved streets shall not be permitted except in cases where there is no alternative as determined by the Town on a case-by-case basis. When exceptions are made, the applicant may be required to perform more extensive restoration, as required by the open cuts and as determined by the Town and designated on the permit issued.
B. 
Borings.
(1) 
Borings under any paved street shall be made by a "directional" method, which allows control and adjustment of the depth, alignment and angle of the boring head (missile) through the use of a continuous electronic locating device mounted on the boring head. Other boring methods will be allowed only in cases where there is no alternative as determined by the Town on a case-by-case basis.
(2) 
All borings shall be at a minimum depth of 36 inches below the surface of the paved street and shall have a minimum clearance of 12 inches from all other existing utilities. All borings shall be perpendicular to the longitudinal center line of the paved street.
(3) 
In cases where the applicant must use private property for the boring setup, the applicant shall be responsible for notification of the affected property owner and for obtaining permission and/or necessary easements from the property owner which shall be filed with the Town.
C. 
Utility placement in the Town's right-of-way shall include traceable tape for future locating purposes.
D. 
A separate right-of-way permit shall be obtained for any test hole work. No test holes shall be made in a greater surface area of the paved street than as specified in such permit, and no excavation or test hole shall interfere with any of the water pipes or connections, sewers, drains or any other underground utility services. Test holes shall be backfilled in accordance with the provisions set by the Town street specifications.
A. 
The applicant shall be responsible for restoring the original condition prior to the work all portions of the right-of-way which are disturbed, including the paved street surface, subsurface, drainage facilities and unpaved shoulders. Disturbance of existing drainage structures shall not be permitted unless there is no alternative as determined by the Town on a case-by-case basis. When exceptions are made, the applicant will be required to perform more extensive restoration, as determined by the Town, and shall be stated in detail on the right-of-way permit.
B. 
The applicant shall be required to reinstall all mailboxes, shrubbery, and any other personal or real property fixtures damaged or disturbed by the work for which the right-of-way permit is issued. Grassed areas that are disturbed shall be reseeded.
C. 
When open trenching has been approved, the length of the trench that may be opened shall not exceed 40 feet before backfilling work is initiated. The method of excavation and backfilling shall be in accordance with the Town street specifications.
D. 
Whenever an excavation disturbs any part of a paved street, the methods of excavation, backfilling and street repaving shall follow the Town street specifications. Whenever such excavation disturbs more than 25% of a street's width, the entire width of the street shall be repaved in accordance with the Town street specifications.
A. 
The applicant shall be responsible for timely notification of intended work to the local media, all emergency response agencies including the Town police and local fire departments, and all affected property owners.
B. 
The applicant shall be responsible for pedestrian safety and keeping any sidewalks clean, clear and protected.
C. 
All watercourses shall be left open so as not to obstruct the free passage of water. All excavations or material from them shall have placed upon them sufficient lights and barricades to identify them from all directions during the day and after dark. If, for safety purposes, the Town deems it necessary to install additional warning devices such as lights, barricades or signs, the applicant shall be notified of the decision and shall receive instructions on the installation. In case of emergencies, the Town may install all additional warning devices deemed necessary. The applicant will reimburse the Town for the cost of such work as invoiced by the Town to the applicant.
D. 
The Town is authorized to make such other rules and regulations for work performed by the applicant which it may deem necessary to protect the health, safety and welfare of the public and its property, which rules and regulations shall be printed upon the permit granted from the Town in writing.
A. 
Any applicant carrying out utility construction work shall protect the safety of the general public. This includes providing appropriate traffic control within work areas which meet the requirements of the State of Delaware Department of Transportation regulation addressing traffic controls for street and highway construction maintenance, utility and emergency operations and the uniform traffic control devices.
B. 
Except in emergencies or when prior approval has been granted by the Town and stated on the permit, at least one lane of traffic shall remain open at all times with all openings covered by a plate or asphalt patch at night. If the work requires a full street closure, the applicant shall submit with the application a written explanation for the closure plus the length of time a full street closure will be required. Access to all private driveways and at least one commercial entrance shall be provided for by use of steel plates.
C. 
Failure by the applicant to provide for traffic safety shall be cause for immediate suspension of operations. The work will not be allowed to continue until the Town is satisfied that proper traffic control is established and the applicant is notified in writing.
The applicant shall guarantee and maintain the work for 36 months from the completion of the restoration and replacement work. Within the thirty-six-month period, upon notification of the Town of necessary correction work, the applicant shall correct or cause to be corrected all such work within 15 working days of receipt of the notification. The Town shall determine the extent of restoration required and the method of correction. Any and all work not completed within this fifteen-day period may be completed by the Town at its discretion. The applicant will reimburse the Town for the cost of such work as invoiced by the Town to the applicant.
A. 
The Town reserves the right to require utility service extensions to vacant properties to minimize future disruption of the right-of-way.
B. 
When the Town reconstructs or resurfaces any street, the Town shall first serve written notice by certified mail of such improvements to all public or private utility companies operating in the Town. Within 90 calendar days from receipt of such notice, all notified utility companies shall complete or cause to be completed all necessary repairs or replacement of utility mains, service connections and/or laterals existing under the street. Notified utility companies shall also complete or cause to be completed any new installations under the street required for use within a two-year period thereafter.
The provisions of this article shall not be applicable to work undertaken by the employees of any governmental body or agency which by law has jurisdiction of such street, road, highway, land, alley, avenue, sidewalk, curb or other such public way.
Every person, firm, or corporation who violates any of the provisions of this article shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined the sum as set out in Chapter 1, General Provisions, Article I, Penalties, and shall pay the costs of prosecution in addition to any other remedies permitted by law. For the purpose of this article, each calendar day or part thereof that a violation occurs shall be deemed to be separate offense.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).