Loading...
2001-97ORDINANCE NO. 2001 - 97 An ordinance requiring permits and the payment of uniform fees for excavation in city property including, but not limited to, city parks, alleys, bike ways and rights-of-way with double fees, forfeitures, other penalties and injunctive relief for violations thereof THE COMMON COUNCIL OF THE CITY OF JANESVILLE DO ORDAIN AS FOLLOWS: SECTION I. Chapter 12.16 of the Code of General Ordinances of the City of Janesville is hereby repealed and recreated to read as follows: Sections: 12.16.010 12.16.020 12.16.030 12.16.040 12.16.050 12.16.060 12.16.070 12.16.080 12.16.090 12.16.100 12.16.110 12.16.120 12.16.130 12.16.140 12.16.150 12.16.160 12.16.170 12.16.180 12.16.190 12.16.200 12.16.210 Chapter 12.16 EXCAVATIONS in City Property and Rights-of-Way; and Certain Private Property Excavation Regulations Purpose and findings. Definitions. Prohibition - Excavation permit required. Application for permit. Fees. Costs arising from permittee exceeding specifications - Substantial projects. Exemptions. Revocations, suspensions, refusals to issue or extend permit. Reporting obligations. Location of facilities. Underground. Limitation of space. Attachment to bridges. Style of cut. Repair and/or restoration of paved or improved areas. Relocation of facilities. Interference with other facilities during municipal construction. Abandoned and unused facilities. Emergency situations. Compliance with city engineer directions. Compliance with other laws. Vicarious liability. 12.16.220 12.16.230 12.16.240 12.16.250 12.16.260 12.16.270 12.16.280 12.16.290 12.16.300 No repeal of tree requirements. Raising or lowering street grade or surface prohibited. Cisterns and other openings to be covered -- Failure to make correction -- Procedure. Open excavations. Razed building sites to be filled to grade. Double Fees Appeal of decisions. Severability. Violations - Penalties - Injunctive and other relief. 12.16.010 Purpose and Findings. A. In the exercise of governmental functions the City has priority over all other uses of the public rights-of- way. The City desires to anticipate and minimize the number of obstructions and excavations taking place therein and to regulate the placement of facilities in the Rights- of-Way to ensure that the Rights-of-Way remain available for public services and safe for public use. The taxpayers of the City bear the financial burden for the upkeep of the rights-of-way and a primary cause for the early and excessive deterioration of its rights- of-way is the frequent excavation by Persons who locate facilities therein. 13. The City finds increased use of the public rights-of-way and increased costs to the taxpayers of the City and that these costs are likely to continue into the foreseeable future. C. The City finds that occupancy and excavation of its property and rights-of- way causes costs to be borne by the City and its taxpayers including, but not limited to: Administrative costs associated with public right-of-way projects such as registration, permitting, inspection and supervision, supplies and materials. Management costs associated with ongoing management activities necessitated by public users. Repair or restoration costs to the public property and/or right-of- way associated with the actual excavation. Degradation costs defined as depreciation caused to the public property and/or rights-of-way in terms of decreased useful life, directly and/or indirectly arising or resulting from such excavations and related activities thereon. D. In response to the foregoing facts, the City hereby enacts this ordinance relating to administration of and permits to temporarily excavate, obstruct and/or occupy public property and/or the public rights-of-way. This ordinance imposes reasonable regulations on the placement and maintenance of equipment currently within its public property and/or rights-of-way or to be placed therein at some future time. It is intended to complement the regulatory roles of state and federal agencies. E. The further purpose of this ordinance is to provide the City a legal, uniform and reasonable framework within which to regulate, manage, inspect, properly maintain, engineer and regulate excavations, repairs, restorations and related effects and aftereffects of and into the City's public properties and rights-of-way, and to provide for recovery of the reasonable associated costs, fees and expenses incurred in doing so. F. This ordinance provides for the health, safety and welfare of the residents of the City as they use public properties and the rights-of-way of the city, as well as to ensure the structural integrity of public property and the public rights-of-way. 12.16.020 Definitions. The following definitions apply in this ordinance. Defined terms remain defined terms whether or not capitalized. "Applicant" means any person requesting permission to excavate, cut into, bore into, obstruct and/or occupy public property and/or a public right-of-way. "City" shall mean the City of Janesville, a Wisconsin municipal corporation located in the County of Rock. "Degradation" means the decrease in the useful life of the public property and/or improved or paved portion of a right-of-way, excluding the sidewalk right-of-way, caused by an excavation of the public property or right-of-way, resulting in the need to reconstruct such property and/or right-of-way earlier than would be required if the excavation did not occur. "Department" means the Engineering Department of the City. "Emergency" means a condition that (1) poses a clear and immediate danger to life or health, or of a significant loss of property; or (2) requires immediate repair or replacement in order to restore service to a customer. "Engineer" means the City Engineer and/or his/her designee(s). "Excavate" and/or "Excavation" means to dig, cut, bore into, remove, physically disturb, penetrate and/or in any manner affect the existing condition of any City property, right-of-way or other land included in this ordinance. "Facilities" means all equipment owned, operated, leased or subleased in connection with the operation of a service or utility service, and shall include but is not limited to poles, wires, pipes, cables, underground conduits, ducts, manholes, vaults, fiber optic cables, lines and other structures and appurtenances. "In", when used in conjunction with "public property" and/or "right-of-way", means upon, over, above, within, on or under such public property and/or right-of way. "Local representative" means a local person or persons, or designee of such persons or persons, authorized by a registrant to accept service and to make decisions for that registrant regarding all matters within the scope of this Chapter. "Obstruct" means to place any object in a right-of-way so as to hinder free and open passage over that or any part of the right-of way. "Permittee" shall mean any person to whom a permit to occupy, excavate or obstruct public property and/or right(s)-of-way has been granted by the City under this section of the ordinances. "Person" shall mean cooperation, company, association, firm, partnership, limited liability company, limited liability parmership, joint venture, association, organization and individuals and their lessors, transferees, receivers, heirs, personal representatives, agents and all others acting on their behalf. "Property" means the surface and space above and below an improved or unimproved part or whole of any and all City owned or leased real property including, but not limited to, parks, vacant lots, open spaces, developed lands, green belts, parking lots, streets, sidewalks, terraces, rights-of-way, curbs, gutters, alleys, bicycle ways, bike trails, paths, beaches, river banks, easements, drainage ways, and other lands. "Public Utility" has the meaning provided in Wis. Stats. 196.01(5), as from time to time amended or renumbered. "Repair" means to perform construction work necessary to make the public property and/or right-of-way useable for appropriate and safe use and, if a right-of-way, travel in reconstructed in accord with the written and/or verbal requirements, specifications, rules and regulations of the City and/or as promulgated from time to time by the City Engineer; and/or, as applicable, to restore equipment to an operable and appropriate condition. "Restore or Restoration" means that process by which an excavated public property and/or right-of-way and surrounding area, including pavement and foundation, is reconstructed in accord with the written and/or verbal requirements, specifications, rules and regulations of the City and/or as promulgated from time to time by the City Engineer. "Right-of-Way" means the surface and space above and below an improved or unimproved public roadway, highway, street, bicycle lane and public sidewalk in which the City has an interest, including other dedicated rights-of-way for travel purposes. 4 "Site" means the specific geographic location for a proposed excavation accurately diagrammed and exactly described with particularity by the applicant in an application. 12.16.030 Prohibition -- Excavation permit required. A. No cut, excavation, or service connection shall be made by any person in any City property unless a permit therefor is applied for, the fee paid for, the permit obtained and held issued by the City under this ordinance and then only in strict accord with all provisions and requirements of this ordinance. B. No person shall undertake to perform the work of making any connection with or repair of any gas pipe, water pipe, sewer, communication, cable, or electric line or facility laid or constructed in any street or public ground, or to repair or remove any such item without having obtained a license authorizing him to do such work. No annual license fee is required but individual permits and permit fees for each excavation are required. C. Every cut, excavation and service connection in any City property that is not a right-of-way shall also require, in addition to the permit, payment of fees and fulfillment of other requirements set forth in this ordinance, separate permission, lease(s) and/or easement(s) from the Common Council and/or City Administration, as applicable. Such additional permission is discretionary with the Common Council and/or City Administration, is not a matter of right regardless of whether a permit has been applied for and/or issued under this ordinance, and may be denied or withheld without cause. Compliance with this ordinance does not take the place of such additional required permission. 12.16.040 Application for permit. A. Written application for an excavation permit shall be made to the City Engineer prior to any excavation. B. Permit applications shall contain and will be considered complete only upon compliance with each and every of the following requirements: Application Form. A fully and accurately completed written Excavation Permit Application Form. The application shall be signed and dated by a duly authorized representative of the applicant. The application form shall be in such form, content and requirements as the City Engineer may determine and/or direct from time to time. The application form shall contain, but is not limited to contain: (a) Each applicant's name, Diggers Hotline registration certificate number, address and e-mail address, if applicable, and telephone and facsimile numbers. (b) The name, address and e-mail address, if applicable, and telephone and facsimile numbers of a local representative. The local representative or designee shall be available at all times. Current information regarding how to contact the local representative in an emergency shall be provided at the time of application. (c) A detailed description of the scope and plan of the excavation work and repair/restoration proposed. (d) Indemnification language protecting and holding harmless the City and each and every of the City's elected and appointed officials, officers, employees, agents, contractors and representatives from and against any and all injury, payments, penalties and damages arising from any and all intentional and negligent activities of the applicant and the applicant's appointed officials, officers, employees, agents, contractors and representatives. Form and Drawings Submission of the completed permit application form as established by the City Engineer, including all required attachments, drawings showing the location and area of the proposed facilities, and the size of the cut, excavation or service connection. The proposed excavation must acconunodate all existing underground facilities within the proposed route. Insurance Certificate. The applicant shall file a Certificate of Insurance with the City Engineer for preservation by the Risk Manager giving evidence of liability insurance in the amounts required from time to time by the City Engineer naming the City and its officials and employees as a co-insureds or additional insureds. The insurance shall cover liability to third parties for the acts of the applicant and applicants officials and employees, agents, contractees, representatives and related others. The insurance shall cover bodily injury and property damage for the individual incidents and aggregates required by the City Engineer. Such insurance shall not be cancelled or reduced without the insurer giving at least 10 days prior written notice to the City Engineer. Cancellation or reduction of insurance shall automatically suspend the permit, and no further work shall be done under such permit until a new certificate of insurance complying herewith is filed with the City Engineer. The Certificate of Insurance shall remain in full force and effect for not less than one year from the date of the City's final inspection after completion of the project. 6 Bond. A bond in the form of cash or a performance bond issued by a licensed company in Wisconsin shall be deposited or filed with the City Engineer and preserved by the City Clerk-Treasurer prior to the issuance of the permit. The City Engineer shall determine the minimum dollar amount of the bond based upon the estimated cost to restore the area involved to a condition the same or similar to that prior to the cut and/or excavation. The bond shall be payable to the City upon demand by the City Engineer for any actual or suspected violation of any provision of this ordinance. The City Engineer shall be able to demand payment upon the bond in whole or in part at any time and from time to time. The bond shall be in such further form, content and requirements as the City Engineer and City Attorney may determine necessary and/or desirable to effect the intent of the Common Council in this ordinance. The City need not resort to any other remedy or provide any prior notice to the applicant or permittee befbre making demand upon, seeking resort or receiving payment from the bond. The bond shall remain in full force and effect for one (1) year from the date of the City's final inspection after completion of the project A copy of the applicant's certificate of authority from the Wisconsin Public Service Commission or other applicable state or federal agency, where the person is lawfully required to have such certificate from said commission or other state or federal agency. If the registration is a corporation, a LLC or LLP, a copy of any certificate required to be filed under Wisconsin Statutes as recorded and certified by the Secretary of State. Each application shall contain attached thereto an accurate diagram and description of the excavation site. Payment. Payment of the permit fees and costs as set forth in this ordinance. C. The applicant shall keep all of the information listed above current at all times by providing to the City Engineer information as to changes within three (3) working days following the date on which the applicant has knowledge of any change. D. A separate permit must be applied for and held, and a separate fee paid, for each site, excavation, cut and/or project. A separate permit is required for a new or emergency excavation at a previously permitted site if the previous work or excavation ended. E. Permits are not transferable from person to person. Permits are not transferable from place to place. F. A photocopy of each issued City Excavation Permit shall be conspicuously posted and maintained at the site until the project is completed. 12.16.050 Fees. A. The below fees shall be calculated by the City, assessed to and paid to the City by the applicant at the time the written application is filed with the City Engineer: 1. A fixed fee of Fifty Dollars ($50.00) per application per site; and A fee calculated at the rate of Fifty Cents ($0.50) per linear foot of proposed excavation, or per square foot of excavation, whichever is greater. B. Fees non-refundable. Permit fees are not refundable for any reason. C. The permit fees shall be in addition to any forfeiture provided elsewhere in this ordinance. 12.16.060 Costs arising from permittee exceeding specifications - Substantial projects. A. A permittee exceeding the scope of the project reported in the written application shall fully and forthwith reimburse the City for all additional City costs incurred in addition to the fees otherwise applicable and/or paid for the entire project as established. Such actual costs shall include, but not be limited to, actual salaries and staff time, benefits, overhead, vehicle and equipment costs, copies and inspections B. Substantial Projects. For applications that provide for a substantial undertaking of excavation within a public fight-of-way attended by disruption of the general public and traffic, the City Engineer may assess the actual costs of the City employees' time engaged in review and inspection of the anticipated plans and work, multiplied by a factor determined by the City engineer to represent the City's actual costs and expenses, benefits, insurance, sick leave, holidays, vacation and similar benefits, overhead and supervision, said factor not to exceed 2.0, plus the costs of mileage, vehicle rental/use attributed to the work, plus all consultant fees associated with the work at the invoiced amount plus ten percent (10%) for administration. 12.16.070 Exemptions. A. The City and its public works contractors shall not pay fees or post a bond for excavations pertaining to general governmental functions and projects, but shall apply for and hold a permit under this ordinance, and shall comply with all other provisions of this ordinance. B. Plumbers who have applied for, paid the fee for, have been issued and hold a City excavation permit for a particular site under Title 15 of the City Ordinances. 12.16.080 Revocations, suspensions, refusals to issue or extend permit. A. The City Engineer may refuse to issue a permit or may administratively revoke, suspend or refuse to extend an existing permit if it finds any of the following grounds: The applicant, permittee or occupant has failed to obtain a permit, failed to pay the full required fee for, and/or has not full complied with any provisions or requirement of this ordinance; 2. Issuance of a permit for the requested date would interfere with an exhibition, celebration, festival or other event; 3. Issuance of a permit would not be in the public's best interest; 4. Issuance of the permit would be contrary health, welfare, safety or good order of the public, community or City; 5. There is a limitation of space as determined by the City Engineer; 6. Misrepresentation of any fact by the applicant, permittee or occupant, or anyone on their behalf; 7. Failure of the applicant, permittee or occupant to obtain, maintain or show proof of required bonds and/or insurance; Failure of the applicant, permittee or occupant to complete work in a timely or appropriate manner on any current or past excavation project in the City; 9. Any current or past violation, breach or non-conformity with any provision of this ordinance by the applicant, permittee or occupant; 10. The competing demands for the particular space in the right-of-way or other public property. 11. The availability of other locations in the right-of-way or in other public property for the facilities of the Permittee or applicant; 12. The applicability of ordinances or other regulations of the right-of-way or other public property that affect location of facilities in the right-of- way; 13. The excavation is proposed for a street, sidewalk, bike way, alley or other right-of-way or portion thereof newly installed, or recently resurfaced or reconstructed, and the applicant chose not to excavate and/or repair/replace the utility before such new installation, resurfacing or reconstruction activities were completed. No 9 excavation shall be allowed in newly installed or recently repaired or resurfaced public property and/or rights-of-way for five (5) years from completion of such new installation or recent repair or resurfhcing. The City Engineer may make exceptions to this rule for extraordinary circumstances and emergencies. B. Discretionary Issuance. The City Engineer may waive a particular requirement and issue a permit where issuance is necessary: (a) to prevent substantial economic hardship to a customer of the permittee or applicant, or (b) to allow such customer to materially improve its utility service, or (c) to allow the permittee or applicant to comply with state or federal law or city ordinance or an order of a court or administrative agency. 12.16.090 Reporting obligations. It is in the best interests of all affected parties to attempt to coordinate construction in public property and/or the public right-of-way whenever it is reasonably possible. Therefore, periodic reporting by the applicant to the City Engineer of known or projected construction plans will be useful to achieve this objective. 12.16.100 Location of facilities. Underground. The permittee shall endeavor to install facilities underground or within buildings or other structures in conformity with applicable codes and requirements of the City Engineer, unless in conflict with state or federal law, existing above-ground facilities are used, or otherwise approved by the City Engineer. The City Engineer may direct that the installation be made underground if the public health, safety, or welfare so require. 12.16.110 Limitation of space. The City Engineer may prohibit or limit the placement of new or additional facilities within public property and/or public rights-of- way if, in his determination, there is insufficient space to accommodate all of the requests of persons to occupy the site, public property and/or right-of-way. In making such decisions, the City Engineer shall strive to the extent reasonably possible to accommodate all existing and potential users of the public property right-of-way, but may prohibit or limit the placement of new or additional facilities when s/he determines such is required to protect, safeguard and/or facilitate the public health, safety, or welfare. In reaching this conclusion, the City Engineer may consider the utility' s/applicant's obligation to serve. 12.16.120 Attachment to bridges. Whenever an applicant requests permission to attach pipes, conduits, cables, or wires to any City bridge structure, the applicant shall pay all costs associated with the granting of such permission, including, but not limited to, administrative expenses in the analysis and inspection of such installation and applicant's plans. The owner of such pipes, conduits, cables, or wires shall be entitled to no compensation for removal or relocation of the same in case of repair, removal, or replacement of said bridge structure by the City or others on the City's behalf, and/or any consequential damages directly and/or indirectly arising therefrom.. 10 12.16.130 Style of cut. All excavations in permanently improved right-of- way, streets and/or parking lots, sidewalks, bike trails, and the like, shall be made by final saw cuts around the perimeter of the excavation in accordance with the "Specifications for Street and Sidewalk Excavation and Pavement Restoration," as prepared and revised from time to time by the City Engineer. 12.16.140 Repair and/or restoration of paved or improved areas. A. Temporary and Permanent. The permittee shall be responsible for all costs associated with maintaining the temporary and permanent repairs and restorations in accordance with the "Specifications for Street and Sidewalk Excavation and Pavement Restoration," as prepared and revised from time to time by the City Engineer. B. Unless otherwise required by the City Engineer, disturbed pavement shall be replaced by the permittee or an authorized contractor retained by the City, at the permittee's sole cost and expense. C. The permittee shall use only materials approved by the City Engineer. The site shall be fully and timely restored by the permittee to a condition better than it was immediately prior to the excavation and in full accord with each and every specification of the City as from time to time supplemental amended or other modified. D. If the repair and/or replacement pavement or material settles or cracks within five years of the date of the permit and if failure of the repair and/or replacement is due to improper backfill, compaction or materials, the pavement and backfill in the excavation area shall be forthwith removed and replaced at the expense of the permittee. E. Repair of Unpaved Areas. All excavations in areas which are not paved shall be backfilled with natural material compacted in 12" layers with mechanical compaction equipment. The surface shall be restored to its original condition, subject to the approval of the City Engineer. The pennittee shall guarantee this work for one year from the date of City final inspection after project completion. F. In all cases, the permittee shall be required to repair the site to City specifications and standards subject to inspection and acceptance by the City. G. In addition to repairing its own work, the permittee must repair the general area of the work, and the surrounding areas, including the paving and its foundations, to the specifications of the City. H. At the beginning and at the end of the project, the permittee shall immediately notify the City Engineer. The City Engineer shall inspect the area of the work and accept the work at the end when the City Engineer determines that proper repair and/or restoration has been made in accord with all specifications and requirements 11 of the City. The permittee shall make the work site available to the City Engineer and to all others as authorized by law for inspection at all reasonable times during the execution of and upon completion of the work. I. In the event that the City Engineer determines that the initial or any subsequent repair and/or restoration work or work area have not been timely or otherwise not repaired or restored as required or directed, then the City Engineer shall inform or notify the permittee who shall then forthwith perform and/or re-do the required work solely at permittee's cost and expense. Permittee shall then notify the City Engineer of the remedial work completion. The City Engineer shall then reinspect the work. At any time the City Engineer may demand and/or draw upon the permittee's bond to cause the work performed adequately. In addition to all of these steps and remedies, and in addition to and not in lieu of any enforcement, forfeitures, penalties, injunctive and/or other relief, the City Engineer may use City crews and/or contract with third parties to perform and/or complete the repairs and/or restoration, and charge/invoice the permitee for the costs and expenses of such work. The permittee shall forthwith pay in full such invoice to the City. J. Guarantees. The permittee guarantees its work and shall maintain it for sixty (60) months following its completion. During this period it shall, upon notification from the City Engineer, immediately correct, repair, restore and/or re-do any and all work and portions thereof to the extent required or directed by the City Engineer, using the method and within the time required by the City Engineer. Said work shall be completed within ten (10) calendar days of the receipt of the notice from the City, not including days during which work cannot be done because of circumstances constituting force majeure. 12.16.150 Relocation of facilities. An occupant must promptly and at its own expense permanently remove and relocate its facilities in the public property or right-of-way whenever the City and/or City Engineering, jointly or severally acting in his/her or its governmental capacity and having determined that the public health, safety, or welfare so requires, requests such removal and relocation. Notwithstanding the forgoing, and occupant shall not be required to remove or relocate its facilities from any right-of-way or other public property that has been vacated in favor of a non- governmental entity unless and until the reasonable costs thereof are first paid to the occupant therefor. 12.16.160 Interference with other facilities during municipal construction. When the City performs work in the right-of-way or other public property and the City Engineer finds it necessary to maintain, support, shore, or move an occupant's facilities, the City Engineer shall notify the local representative. The occupant shall meet with the City's representative within twenty-four (24) hours and coordinate the protection, maintenance, supporting, and/or shoring of the occupant's facilities. The occupant shall accomplish the needed work within seventy-two (72) hours, unless the City agrees to a longer period. In the event that the occupant does not proceed to maintain, support, shore, or move its facilities within such time, the City may arrange to do the work and bill the occupant, said bill to be paid within thirty (30) days. 12 12.16.170 Abandoned and unused facilities. A. Discontinued Operations. An occupant or permittee who has decided to discontinue its operations must either: Timely provide information satisfactory to the City Engineer that the occupant's or permittee's obligations under this ordinances for its facilities have been lawfully assumed by another occupant or permittee; or Submit to the City Engineer a proposal and instruments fur transferring ownership of its facilities to the City. If an occupant proceeds under this clause, the City may, at its option: accept the dedication for all or a portion of the facilities; or require the occupant, at its own expense, to remove the facilities; or require the occupant to forthwith post a bond or provide payment in an amount determined by the City Engineer sufficient to reimburse the City for reasonably anticipated costs to be incurred in removing the facilities. B. Abandoned Facilities. Facilities that remain unused for two (2) years shall be deemed abandoned. Any occupant or permittee having abandoned equipment in any public property and/or right-of-way shall remove it within two years, unless the City Engineer waives this requirement. Abandoned facilities are deemed to be a nuisance. In addition to any remedies or rights it has at law or in equity, the City may, at its option, abate the nuisance, take possession of the facilities, or require the removal of the facilities by the occupant or the occupant's successor in interest, or exercise any of its other rights under this ordinance. A determination by the City Engineer that a facility is abandoned shall be conclusions, final and binding on the occupant and/or permittee. 12.16.180 Emergency situations. Each occupant, permittee and/or their agent shall immediately notify the City Engineer by verbal notice on an emergency phone number provided by the City Engineer of any event regarding its facilities that it considers to be an emergency. The occupant, permittee and/or their agent may proceed to take whatever actions are necessary to respond to the emergency. Within two business days after the occurrence of the emergency the occupant, permittee and agent shall apply for the necessary permits, pay the fees associated therewith, and otherwise fully comply with the requirements of this ordinance. 12.16.190 Compliance with city engineer directions. An applicant, permittee and occupant shall forthwith comply with each and every verbal and written direction and requirement of the City Engineer. 13 12.16.200 Compliance with other laws. Obtaining a permit to excavate and/or occupy the right-of-way or other City property does not relieve Permittee of its duty to obtain all other necessary permits, licenses, and authority and to pay all fees required by any other City, County, State, or Federal rules, laws or regulations. A permittee shall comply with all requirements of local, state and federal laws. A permittee shall perform all work in conformance with ail applicable codes and established rules and regulations, and is responsible for ail work done in the right-of-way pursuant to its permit, regardless of who does the work. 12.16.210 Vicarious liability. Each applicant, permittee and occupant is vicariously responsible and liable under this ordinance for the actions of the respective applicant's ,permittee's and occupant's contractors and agents, and is liable for violations by them, jointly and severally. 12.16.220 No repeai of tree requirements. Nothing herein shall be construed to repeai or amend the provisions of a City ordinance requiring persons to plant or maintain a tree lawn in the area of the right-of-way between their property and the street curb or pavement, construct sidewalks or driveways or other similar activities. Persons performing such activities shall not be required to obtain any permits under this ordinance. 12.16.230 Raising or lower street grade or surface prohibited. No person, unless duly authorized in writing by the city manager or by formal action of the council, shall raise or lower the surface of any street above or below the established grade, or remove any earth or soil from any street, or interfere with the surface or soil of any street in any manner whatsoever. 12.16.240 Cisterns and other openings to be covered -- Failure to make correction -o Procedure. No person, firm or corporation shall have or permit, on any premises owned or occupied by him or them, any open cistern, cesspool, well, or other dangerous openings. All such places shall be securely covered or enclosed in such a manner as to prevent injury to any person, and such covers or enclosures shall be of such design, size, weight and anchorage that the same cannot be removed by children. Where such an opening exists and is considered by the building inspector to be a hazard, and the building inspector has issued a written order to the property owner, the latter shall cause the hazard to be protected at once. In any case where the property owner fails to correct the situation within twenty days after the notice has been issued to him or them, it shall be the duty of the building inspector to see that the protection is completed by the city, and the cost thereof shall be assessed against the property as a speciai charge and added to the tax rolls. (Prior code '19.06(part)). 12.16.250 Open excavations. A. The owner of any property upon which there are excavations of any kind in connection with any proposed building or construction or the installation of any utilities which have been allowed to remain open and unprotected for a period of sixty days from the date of the issuance of the permit for 14 such work, and which, in the opinion of the building inspector, constitutes a haTxrd, shall, upon written notice from the building inspector, cover, fence or fill in such excavations within twenty days of the date of such notice; failing which, it shall be the duty of the building inspector to see that such work is done by the city, and the costs thereof shall be charged against the real estate upon which such excavation is located and shall be a lien upon such real estate, and shall be assessed and collected as a special tax. B. No excavation shall be left open for more than six months. The requirements of this subsection shall be in addition to the requirements of subsection A. In the event any such excavation remains open for more than six months, the building inspector or other designated officer shall order that a subfloor be installed which would completely cover the excavation or in the alternative that the excavation be filled to grade. The order shall be served upon the owner of the land or his agent and upon the holder of any encumbrance of record. If the owner of the land fails to comply with the order within twenty days after service thereof upon him, the inspector of buildings or other designated officer shall cause the excavation to be filled to grade, and the costs thereof shall be charged against the real estate upon which such excavation is located and shall be a lien upon such real estate, and shall be assessed and collected as a special tax. The building inspector in his discretion may extend the time period for thirty, sixty or ninety days, if, in his opinion-, weather or other uncontrollable circumstances have unduly delayed the building upon the open excavation. C. The types of excavations to which subsections A and B apply include, but are not limited to: Open excavations for basements; Open basement excavations in which foundations lave been constructed, and upon which no building has been erected or from which a building has been removed; Any foundation in a basement excavation whether supporting a building or not, around which backfilling has not been completed; Any case where a foundation has failed, and any part of such foundation has fallen in, whether supporting a building or not. 12.16.260 Razed building sites to be filled to grade. A. No person, firm or corporation shall have or permit, on any premises owned or occupied by him or them, an open excavation to remain on the site where a building has been razed for over a period of six months. The site where a building has been razed must be filled to grade by crushed rock, sand or other fill acceptable to the city building inspector within a period of six months from the date the permit to raze had been issued, unless within that time actual construction has been commenced on the site. If such excavation has not been filled, construction commenced, or an extension granted by the building board of appeals within the six-month period of time, it shall be the duty of the building inspector to have the excavation filled, and the cost thereof shall be assessed against the property, as a special charge, and added to the next tax rolls against such property. 15 B. This section is in addition to and shall take precedence over other provisions contained within this code. 12.16.270 Double Fees. A. Any person who commences any activities for which a permit is required under this ordinance without first having applied for, paid the fee for and/or holding the required permit shall still be required to apply for, pay the fees for and hold the requisite permit before continuing any excavation or other activities upon the site. B. applicable. Such person shall also be required to pay double the fees otherwise 12.16.280. Appeal of decisions. Any applicant, permittee, occupant or other person aggrieved by a decision of the City Engineer under this ordinance may file a written appeal with the City Engineer requesting review before the City Plan Commission. An appeal shall be filed within ten (10) days of the decision or direction. The Plan Commission shall commence a hearing within sixty (60) days of the filing of the appeal. The determination of the Plan Conunission shall be subject to review and approval by the Common Council. Chapter 68, Wisconsin Statutes, shall not apply to this administrative appeal process. The appeal shall be signed and dated by a person authorized to appeal or to act on behalf of such person. The appeal form shall require such other information as the City Engineer may from time to time require. 12.16.290 Severability. If any subsection, sentence, clause, phrase or portion of this section is held invalid or unconstitutional by any court or administrative agency of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof. 12.16.300 Violations -- Penalty -- Injunctive and other relief. A. Any person, officer or principal of any person who violates, causes or permits to be violated any provision of this ordinance, requirement or specification of the City or City Engineer, upon conviction thereof, pay a forfeiture to the City of not less than Fifty Dollars ($50.00) nor more than Ten Thousand Dollars ($10,000.00), together with the costs of prosecution and in default of payment thereof, shall be imprisoned in the Rock County Jail for not less than five (5) days nor more than ninety (90) days, or dealt with as otherwise provided by law. B. It shall be the ongoing responsibility of the offender to timely abate the violation(s) as quickly as possible. C. Each and every violation constitutes a separate punishable offense. D. Each and every day that a violation continues constitutes a separate punishable offense. 16 E. The City, in addition to the above penalties, may institute and seek injunctive relief through circuit court and/or may commence, maintain and prosecute one or more related or additional actions to achieve compliance and/or enjoin, abate or remove the violation(s); and the Common Council may also revoke or suspend any permit issued hereunder. The City Engineer may deny the issuance of a permit to an applicant who has been convicted ora previous violation of this ordinance, or who has violated or is violating any provision of this ordinance, in the estimation of the City Engineer. F. If a permit were issued, such issuance shall not constitute a defense for the offender, not shall any error, oversight, previous non-enforcement of a similar or separate violation, or dereliction of duty on the part of any city official, board or body constitute any defense." SECTION II. Sections 5.04.090, 5.04.100 and 5.04.110 of the Code of General Ordinances of the City of Janesville are hereby repealed in their entirety. SECTION III This ordinance shall take effect on January 1, 2002. ADOPTED: September 10, 2001 fl~even E. Sheiffer, City Managerv ATTEST: Jean/~&n Wulf, Cit~ [21erk-Treasurer APPROVED AS TO FORM: City Attorney Proposed by: City Administration Prepared by: City Attorney MOTION BY: 0 ' LEARY SECOND BY: WILLIAMS COUNCILMEMBER AYE NAY PASS ABSENT DAMRON X WILLIAMS X O'LEARY X DEGARMO X BRIEN X MURPHY X STEEBER X Excavation in Streets Ord. 17