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.
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.
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.