(Rev. Ords. 1976, Pt. 2, Ch. 17, § 9; Ord. of 12-5-94; A0173-12)
(a) 
Permits.
(1) 
No person shall break or dig up the ground or pavement in any street, sidewalk, or way without first obtaining a permit from the city services commission, in writing, for such periods of time, and under such limitations and restrictions, issued by the city services commission. The permit shall state the times and dates on which work may be done.
(2) 
Permits shall be issued only upon the following conditions:
a. 
Payment of a non-refundable application fee of fifty dollars ($50.00).
b. 
Presentation of a performance or payment bond of five thousand dollars ($5,000.00) for each street opening permit; or guarantee thereof.
c. 
Presentation of a certificate of insurance evidencing one million dollars ($1,000,000.00) of general liability insurance naming the city on its face or evidence of self-insurance.
d. 
Any city services activities shall be exempt from the permit, fee, fine, bond and insurance requirements.
(3) 
No permit shall be issued to break any pavement structure of a street, sidewalk or any way which is five (5) years or less in age; provided that the city services commission may issue a permit where, in the opinion of its director, the immediate health, safety, or convenience of the public requires that the street, sidewalk, or way, be opened. The age of any pavement structure shall be determined from the date of the final acceptance of its construction, reconstruction, or repair. The permittee shall be required to replace the pavement shall be required to replace the pavement structure to its original state.
(4) 
Prior to the commencement of work, the permittee shall notify the city services department who shall notify the police and fire department of the person in charge of such work who may be contacted after regular working hours.
(5) 
Any permit may be revoked or cancelled by the city services commission at any time whenever the permittee fails to comply with any terms or conditions under which the permit was granted or when, in the opinion of the city services commission, the public health, safety, welfare, or convenience requires such revocation.
(6) 
Any person who opens an excavation without a permit shall be subject to cancellation of existing permits, refusal or future permits, license revocation and fined in accordance with chapter 1, section 8 of the revised ordinances of the city.
(7) 
The permittee shall comply with the provisions of this section and all other city ordinances. Failure to comply shall result in the revocation of the permit.
(b) 
Notification.
(1) 
Dig Safe and M.W.R.A. shall be properly informed by the permittee in advance of all intended excavations.
(2) 
The city service commission shall be notified at least seventy-two (72) hours prior to the commencement of any work.
(c) 
Construction procedures.
(1) 
All construction procedures shall meet or exceed current Massachusetts Highway Department Standard Specifications for Highways and Bridges.
(2) 
The street or sidewalk shall only be disturbed within the area requiring excavation for repair, replacement, or new installation. When the opening occurs within two (2) feet of the curb and/or edge of the hardened surface, the paved area between the excavation and the curb or edge shall be removed prior to the temporary repair.
(3) 
In the back fill process, the back fill shall be comprised of a suitable material and is subject to the approval of an authorized representative of the city services commission.
(4) 
The area abutting the excavated area shall then be cut back in straight lines, with ninety (90) degree angles at the point of intersection, six (6) to twelve (12) inches to a depth exposing the undisturbed gravel base.
The vertical face of the pavement cuts shall be thoroughly cleaned, particularly at the corners.
Utility structures shall be leveled to the adjacent surfaces and shall be the responsibility of the appropriate utility.
The excavation site shall be maintained in a clean and safe condition at all times. Sidewalks and streets shall be cleaned at the end of each working day. Traffic shall be opened at the end of each working day unless the city services commission, or its executive director, determines that it is not in the interest of public convenience. Access to properties along the street is to be maintained at the end of each working day, and during the time that work is not being performed at each property.
(5) 
All surplus or unacceptable excavated material shall be removed from the job site immediately. The removal and disposal of materials including pavement shall be the responsibility of the permittee. This shall be achieved in such a manner to minimize interferences with pedestrian and vehicular traffic.
(6) 
The permittee shall be liable for the condition of the street and sidewalk openings and protection thereof.
Other than while work is actually being performed, all open ditches shall be protected by back filling or steel plating or as otherwise required by the executive director of city services.
The excavation shall be properly secured to insure the safety to the traveling public and immediately reported to the city service commission. Temporary patching shall be done by the permittee or their contracted representative and shall be the financial responsibility of the permittee. The permittee’s barricade or safety device shall be immediately removed from the vicinity of the patched area upon completion of the temporary bituminous patching application.
Permanent bituminous patching shall be completed no later than ninety (90) days from the date of temporary patching unless waived in writing by the executive director of city services.
(7) 
The permittee shall be responsible for any settlement in or adjacent to the original excavated area.
(8) 
In the event of an improperly prepared excavation including those left with unacceptable back fill material or insufficient pavement depth, the trench shall be re-excavated and prepared correctly by the permittee. Under the above conditions, the permittee may be subject to permit cancellation, inspection fees, fines in accordance with chapter 1-8 of the revised ordinances and loss of deposit.
(9) 
All street and sidewalk excavations shall be made permanent by a method deemed appropriate by the city services commission and shall be the financial responsibility of the permittee.
(10) 
The completion of a permanent restoration shall not alleviate the permittee from the responsibility for the condition of street and sidewalk openings for a period of one year from the date of the final accepted permanent repair. Permanent bituminous patching shall be completed no later than ninety (90) days from the date of temporary patching unless waived in writing by the executive director of city services.
(d) 
Emergency procedures.
(1) 
For any public utility, the permit and notification provisions contained herein shall be waived for any excavation or groundbreaking undertaken in response to an emergency event or events. An emergency event is one, which, in the judgment of the utility, requires immediate action to restore service to customers or to protect the immediate health, safety, or convenience of the community. Such decisions shall be made consistent with and in accordance with generally accepted utility industry standards.
(2) 
In the event of an emergency, the utility shall exercise best efforts to notify the police department and the city services commission as soon as practicable prior to or immediately after undertaking any work that would otherwise require a permit hereunder. After any emergency, the utility shall submit to the city services commission a report of actions taken and work performed during the emergency and such work shall comply with the construction provisions herein.
(Rev. Ords. 1976, Pt. 2, Ch. 17, § 10; Ord. of 6-3-91(1); A0173-12)
(a) 
Any person who shall break or dig up the ground or pavement of any street or public way shall restore the same to proper condition to the satisfaction of the city services commission.
(b) 
Any person who shall break or dig up the ground or pavement of any street or public way, other than municipal employees, in which requires overnight protection of open or covered areas, must leave their name and telephone number on site and visible so they may be contacted in the event of an emergency.
(Ord. of 11-23-87; A0173-12)
All excavations on sidewalks and streets shall be temporarily filled immediately upon completion of work and permanently filled and properly patched subject to the approval of the city services commission.
(Rev. Ords. 1976, Pt. 2, Ch. 17, § 11; A0173-12)
Before granting any permit under the provisions of this article, the city services commission shall require that the applicant execute a bond to the city in such a sum as the city services commission may prescribe, to save the city harmless from any damages that may arise from such digging up of the way, and to insure the carrying out of the provisions of this article.
(Rev. Ords. 1976, Pt. 2, Ch. 17, § 11; A0173-12)
Where the flow of pedestrian and/or vehicular traffic will be impeded or rerouted by any work coming under the provisions of this article, the holder of the permit shall procure at his expense sufficient police detail furnished by the police department as the regulations of the chief of police or his duly authorized agent may require. When a permit is issued by the city services commission for a street opening, the city services commission and the petitioner shall notify the chief of police immediately.
(Ord. 6-3-91)
Any utility company and/or contractors opening or doing work on streets in the City of Everett, requiring overnight protection of open or covered areas, must leave their name and telephone number on site and visible so that they may be contacted in the event of an emergency.
(A0065-06; A0173-12)
(a) 
Purpose of Trench Cut Cost Recovery Fee.
Excavations in paved streets owned and maintained by the City degrade and shorten the life of the surface of the streets, and this degradation increases the frequency and cost to the public of necessary resurfacing, maintenance and repair. These excavations cause degradation of the streets even where the excavations are refilled and repaired in conformity with applicable standards and requirements. It is appropriate that entities responsible for excavating into the City’s right of way bear the burden of the resulting cost of this degradation and shortened life of the surface rather than the taxpayers of the City. In addition, establishment of a trench cut cost recovery fee will create an incentive for utilities to coordinate excavations in the streets. This Ordinance shall not be construed to relieve those excavating into the City right of way of the obligation to fill, repair and properly maintain the location of the excavation.
(b) 
Definitions.
(1) 
“Applicant” shall mean any owner or duly authorized agent of such owner, who has submitted an application for a permit to excavate.
(2) 
“City street” shall mean any Public right of way which has been accepted, or is hereafter accepted by the City of Everett.
(3) 
“Department” shall mean the Department of City Services.
(4) 
“Director” shall mean the Director of City Services or his/her designee.
(5) 
“Excavation” shall mean any opening in the surface or subsurface of the public right of way.
(6) 
“Facility” or “Facilities” shall mean any and all cables, cabinets, ducts, conduits, converters, equipment, drains, handholds, manholes, pipes, pipelines, splice boxes, surface location markers, tunnels, utilities, vaults, and other appurtenances or tangible things owned, leased, operated, or licensed by an owner or person, that are located or are proposed to be located in the public right of way.
(7) 
“Owner” shall mean any person, including any agency, department, who owns any facility or facilities that are or are proposed to be installed or maintained in the public right of way.
(8) 
“Permit” or “permit to excavate” shall mean a permit to perform an excavation as it has been approved or may be amended or renewed by the Department.
(9) 
“Person” shall mean any natural person, corporation, partnership, or any governmental agency, including any agency, Department, or subdivision of the County, the state of Massachusetts, or United States of America.
(10) 
“Public right of way” shall mean the area across, along, beneath, in, on, over, under, upon, and within the dedicated public alleys, boulevards, courts, lanes, places, roads, sidewalks, streets, and ways within the City, as they now exist or hereafter will exist and which are or will be under the permitting jurisdiction of the Department of City Services.
(11) 
“Trench Cut Recovery Fee” is a fee, the amount of which shall be set at One Thousand dollars ($1,000.00) per one hundred (100) square feet or any portion of one hundred square feet of surface area that is excavated.
(12) 
“Trench Influence Area” shall mean an area three and one-half feet adjacent to the edge of trench where the excavation occurs.
(c) 
Payment of Trench Cut Cost Recovery Fee.
No person shall excavate in a Public right of way without, in addition to all other requirements of this Ordinance, having first paid to the City a “Trench Cut Cost Recovery Fee.” The amount of this Trench Cut Cost Recovery Fee may be modified from time to time by an Order passed by the Everett City Council with the approval of the Mayor. The a “Trench Cut Cost Recovery Fee” is in addition to any other applicable fees or charges.
(d) 
Variance from Payment of Trench Cut Cost Recovery Fee.
Any person subject to the Trench Cut Cost Recovery Fee may request that the Director waive the requirement of payment of the Trench Cut Cost Recovery Fee due to individual circumstances that demonstrate, on a case-by-case basis, that the amount of the fee is not reasonably related to the projected impact of the proposed excavation.
(e) 
Exceptions.
(1) 
Excavations in City streets scheduled for pavement structural improvements within two years of the date of excavation shall be exempt from the Trench Cut Cost Recovery Fee.
(2) 
No Trench Cut Cost Recovery Fee shall be charged for underground utility district projects initiated by the City, or utility line relocations necessitated by City street work projects or by street discontinuances.
(3) 
No Trench Cut Cost Recovery Fee shall be charged for excavations performed by or for the city services department.
(4) 
No Trench Cut Cost Recovery Fee shall be charged with respect to excavation in a sidewalk or a concrete street.
(f) 
Pavement Life Performance Warranty.
(1) 
In lieu of paying a Trench Cut Cost Recovery Fee , a Person who is a public agency, who is a publicly regulated utility company, or who has a valid franchise agreement with the City or is statutorily exempt from franchise requirements shall provide a written pavement life performance warranty in a form acceptable to the City. The warranty shall provide that in the event that subsurface material or pavement over or within the Trench Influence Area becomes depressed, broken, or otherwise fails at any time after the excavation (or joint operation excavation) has been completed, that Person shall repair or restore such condition at the direction of the Director of City Services.
(2) 
In the event that a Person who is a public agency, a publicly regulated utility company, or who has a valid franchise agreement with the City or who is statutorily exempt from franchise requirements fails or refuses to provide a written pavement life performance warranty, such Person shall pay the Trench Cut Cost Recovery Fee set forth in this Ordinance.
(3) 
Should a Person who has entered a written pavement life performance warranty with the City fail to repair, replace or restore a Public right of way in accordance with the terms of the warranty, the City may cause the repair to be made and charge the amount of the repair costs to the Person. After three failures to make repair on any warranted trenches citywide within any twenty-four (24) month period, the Director may, at Director’s discretion, terminate the Pavement Life Performance Warranty Agreement with the Person and thereafter require the Person to pay the Trench Cut Cost Recovery Fee.
(4) 
Written notice of the decision of the Director to terminate a Pavement Life Performance Warranty Agreement shall be mailed to the Person who entered the Agreement, and the termination shall take effect upon mailing. The Person may, within sixty (60) days after mailing of the written notice of termination, request the Director to reconsider the decision to terminate the Agreement and to renew the Agreement by submitting a written statement, executed by the Person or by a duly authorized agent for the Person, stating the reasons that the Agreement should not be terminated, and reaffirming the Person’s agreement to be bound by the terms of the Pavement Life Performance Warranty Agreement as amended if the Agreement is renewed. The Director shall consider the materials which are timely submitted by the Person, and such other information and material as the Director may in his discretion permit, and shall respond in writing within thirty (30) calendar days after receipt of the timely request by:
a. 
granting the request to renew the Agreement,
b. 
denying the request to renew the Agreement, or
c. 
requesting such additional information or documentation as the Director find relevant to evaluation of the request.
(5) 
Pavement life warranty agreements are not transferable or assignable.
(g) 
Repair of Sunken Pavement Over Excavation.
(1) 
If the subsurface materials or pavement over or within the Trench Influence Area becomes depressed or broken at any time, the Person shall, within fourteen (14) days of mailing of written notice from the Director, immediately inspect the depressed or broken area to ascertain the cause of the failure. The Person shall make repairs to the installation or backfill and have the pavement restored in the manner and within the time period specified by the Director. A Trench Cut Cost Recovery Fee shall not be charged for work performed under this Section.
(2) 
If the pavement is not restored as specified by the Director, unless delayed by conditions beyond the Person’s control, the Director may cause the work to be done after giving the Person twenty-four hours final notice. The Person shall thereafter, upon written demand by Director, pay the City an amount calculated by multiplying the number of square feet of pavement restored by the Square Foot Trench Repair Reimbursement Fee. The Person shall remain responsible for any future repairs of that portion of pavement over the excavation that was repaired by the County.
(h) 
Protest of Trench Cut Cost Recovery Fee--Claims for Refund--Appeals
(1) 
Any person required to pay a Trench Cut Cost Recovery Fee pursuant to this Ordinance who desires to protest or otherwise challenge the imposition or amount of the fee shall tender to the City payment in full of the fee when due, accompanied by a written notice to the Director of City Services containing the following information:
a. 
A statement that the required payment is tendered under protest; and
b. 
A description of the factual and legal basis for the protest in writing.
(2) 
Any person required to pay a Trench Cut Cost Recovery Fee pursuant to this Ordinance, and who has complied with the fee protest provisions of Subsection (a) of this Section, may submit a claim for refund of the fee in the manner set forth within thirty (30) days of payment of the Trench Cut Cost Recovery Fee. In evaluating the claim, the Director shall consider whether the claimant has established: (i) the claimant’s excavation will not degrade and shorten the life of the surface of the street(s), (ii) that the degradation of the street(s) will not increase the frequency and cost to the public of necessary resurfacing, maintenance and repair of the street(s); (iii) that the imposition or amount of the Trench Cut Cost Recovery Fee required of the claimant is unlawful for another reason.
(3) 
The validity or amount of a Trench Cut Cost Recovery Fee shall not be contested in any action or proceeding unless the action or proceeding is commenced within ninety (90) days after a claim is filed and denied.
(4) 
The Director of City Services shall maintain a file for all refunds and the reason for the refund. A copy of the refund files shall be submitted to the City Auditor yearly or when requested by the City Auditor.
(i) 
Utility Master Plans.
(1) 
Any utility owning, operating or installing in a Public right of way facilities providing water, sewer, gas, electric, communication, video or other utility services, shall prepare and submit to the Director a utility master plan, in a format specified by the Director, that shows the location of the utility’s existing facilities in Public rights of way, and shows all of the utility’s planned major utility work in Public rights of way for the next year. Utilities shall submit an initial utility master plan no later than one hundred eighty (180) days after the effective date of this ordinance. Thereafter, each utility shall submit annually, on the first regular business day of August, a revised and updated utility master plan. A utility may extend its deadline to submit its utility master plan by a period not to exceed fifteen (15) days by submitting written notice to the Director of the delay and identifying the reasons for the delay. As used in this subsection, the term “planned major utility works” refers to any and all future excavations planned by the utility when the utility master plan or update is submitted that will affect any Public right of way for more than fifteen (15) days, provided that the utility shall not be required to show future excavations planned to occur more than a year after the date that the utility master plan or update is submitted.
(2) 
The Director shall make all utility master plans submitted in accordance with subsection (a) of this section, available for public inspection.
(3) 
Prior to applying for an excavation permit, any person planning to excavate in the Public rights of way shall review the utility master plans and the City’s repaving plan on file with the Director and shall coordinate, to the extent practicable, with the utility and street work shown on such plans to minimize damage to, and avoid undue disruption and interference with the use of Public rights of way.
(j) 
Moratorium.
(1) 
Excavation in newly renovated Public right of ways is prohibited for three (3) years after filing of a notice of completion or acceptance of a new street or structural overlay of an entire street except as follows:
a. 
Emergency which endangers life or property;
b. 
Repair or modification to prevent interruption of essential utility services;
c. 
Relocation work that is mandated by State or Federal legislation;
d. 
Service for buildings or parcels where no other reasonable means of providing service exists, as determined by the Director;
e. 
In a Public right of way that the City has scheduled for overlay or reconstruction within two years after the date of excavation due to failure of the original pavement;
f. 
Other situations deemed by the Director to be in the best interest of the general public.
(2) 
Where a permit is issued to excavate during the three (3) year period after filing of a notice of completion or acceptance of a new street or structural overlay of an entire street, payment of the Trench Cut Cost Recovery Fee will be required regardless of whether the Person has executed a pavement life performance warranty.
(3) 
The Moratorium in subsection (a) shall not apply if the structural overlay was completed prior to the effective date of this Ordinance.
(k) 
Coordination with City.
(1) 
Prior to applying for an excavation permit in the Public rights of way, the City shall review on behalf of the Applicant the City’s anticipated repaving plans and the utility master plans on file with the Director. The Applicant shall coordinate, to the extent practicable, with the utility and street work shown on such plans to minimize damage to, and avoid undue disruption and interference with the Public rights of way. Such coordination shall include:
a. 
Whenever two or more persons have proposed a major excavation in the same general location, they shall meet and confer with the City regarding whether it is feasible to conduct a joint operation excavation. If the persons select a single contractor to do the joint work then the Director may direct that only a single Trench Cut Cost Recovery Fee shall be charged, except that no fee shall be charged if any of the Persons conducting a joint operation excavation possesses a valid performance warranty agreement with the City.
(2) 
To avoid future excavations and to reduce the number of street excavations, telecommunication companies shall be requested, when practical, to install spare conduits.
(3) 
In order to encourage coordination of excavation and pavement scheduling and planning between the City and excavators, the City shall update at least annually its anticipated repaving plans. The anticipated repaving plans shall also identify the Public rights of way which are then subject to the Moratorium provisions, and the Moratorium expiration date for each such right of way. A copy of the anticipated repaving plans shall be available for review at the Department of City Services by any interested Person.
(l) 
Creation of Trench Cut Cost Recovery Fee Fund.
There is hereby created and established the “Trench Cut Cost Recovery Fee Fund.” The Fund is a restricted fund, and all funds deposited into the Trench Cut Cost Recovery Fee Fund shall be used solely for the purpose of street surfacing, resurfacing, repair and reconstruction.
(m) 
Deposit of Moneys.
All funds received pursuant to this Ordinance shall be placed in the Trench Cut Cost Recovery Fee Fund. All interest and other earnings from monies placed in the fund shall be credited to the fund and shall be used for the purposes stated above.
(n) 
Expenditure of Funds.
Funds maintained in the Trench Cut Cost Recovery Fee Fund shall only be appropriated by an Order of the Everett City Council, with the approval of the Mayor for the maintenance, rehabilitation, resurfacing administration and protection of the Public right of way that have been excavated after the effective date of this ordinance, and for refunds of fees approved by the Director of City Services. Monies not expended from the fund in any fiscal year shall not revert to the General Fund, but shall remain in the Trench Cut Cost Recovery Fee Fund.
(o) 
Severability.
If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City of Everett hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional.