§ 62-91. Issuance of permit; allocation of costs; time limits.

(a)

Issuance. All applications for all permits for installation, or excavation pursuant to this article shall be reviewed by the department of public works, and if the application is complete and the permittee is in compliance with all requirements of this article, to the extent practicable, the county shall issue a permit within 20 days of receipt of the last application and notice to all parties; provided that all joint application permits for installation or excavation by two or more persons shall be expedited, and if in compliance with all requirements of this article, shall if practicable, be approved by the director of public works within ten days of receipt of such applications. No permit shall issue unless sufficient space is available so that the free flow and safety of roadway traffic is not unduly impaired and the utility installation does not prevent the county from reasonably maintaining the roads, structures, traffic control devices and other appurtenant facilities, and do not jeopardize the traffic or roadway structure or the maintenance thereof.

(b)

Denial of a permit; option to require cash bond or letter of credit.

(1)

Person conducting work. The director of public works shall grant no permit where the applicant has failed to comply with the terms of a prior permit or conducted prior work without a permit, and where such failure was previously documented in writing and delivered to the violator. It shall be within the reasonable discretion of the director of public works to decline a permit to any person who shall have failed to carry out any prior order or instruction of the director of public works in connection with the opening of a public road or sidewalk at any time. It shall be within the director's reasonable discretion to consider mitigation factors submitted by the applicant pertaining to past conduct or omission. In exercising his discretion whether to grant a permit to a company which had conducted prior construction activity without a permit or a company that violated the terms of a prior permit, the director may require cash deposit or an irrevocable letter of credit from a qualified financial institution, securing the compliance of the terms of this article and the faithful performance of the obligations of the party conducting construction or excavation activities within the public right-of-way or public road. The amount of irrevocable letter of credit or cash deposit shall be determined by the director in an amount deemed best protect the public safety and welfare. The deposit shall be placed in an interest bearing account. The letter of credit or cash deposit is in addition to the performance bond and insurance required by this article. The director of public works may demand payment from the institution that issued the letter of credit for a violating party or make deductions from the cash deposit, as applicable to offset the costs of, among other things, the repair, excavations or work performed by the department of public works, or to pay any assessed penalties or costs associated with violations of this article. Where practicable, the county shall provide the permittee with ten days advance written notice of a deduction from the deposit. The letter of credit or cash deposit shall be maintained until satisfactory completion of permitted activity.

(2)

Person on whose behalf work is being conducted. The director of public works may, in the director's discretion, decline to grant a permit if the director determines that the permit will not be in the public interest, with such factor to be considered to include, but not limited to, whether space is available for the utility. The responsibility shall be upon the director of public works to see that no permit is granted to any person to open any public road or sidewalk where the results to be accomplished under the permit will unreasonably interfere with the use of the public road or sidewalk.

(3)

Reason for denial must be provided. If the permit is denied, the reason for the denial shall be furnished in writing to the applicant, as soon as possible, but no later than 20 days upon submittal of the application.

(c)

Appeals from denial of permit issuance; judicial review. A person may appeal the denial of a permit to the county manager. The person shall be afforded an opportunity to be heard and to offer evidence in support of the appeal. The county manager shall act on the appeal and issue a final decision within 30 days of receipt of the written appeal. The decision of the county manager shall be final. Any person aggrieved by the decision of the county manager's denial of a permit, after having pursued the appeal process of this subsection, shall have the right to appeal de novo to the Superior Court of Fulton County.

(d)

No permit fee; reimbursement costs only. There shall be no charge for the issuance of the permit. The applicant shall reimburse the county for any reasonable and necessary expense, including, but not limited to, extraordinary inspection services incurred by county in connection with the utility or work authorized by the permit. The reimbursement to the county shall be made by the applicant within 30 days after receiving a invoice or statement from the director. The applicant, upon notification in writing by the director, shall pay a reasonable market price for any material removed from the right-of-way or public road or destroyed as a result of the work authorized by the permit. Such payment shall be within 30 days of receipt of the statement from the director.

(e)

Cost of permitted work. The entire cost of installing, maintaining, repairing, operating, using the utility, or any other expense whatsoever incidental to the work authorized by the permit, shall be borne by the applicant. All costs associated with conducting excavation or construction activities within the public right-of-way or public road, including the making and refilling any opening or replacing any permanent improvement shall, be borne by the utility facility operator or owner at whose request such opening is made. If work is performed by the county on behalf of or at the request of a utility facility owner or operator, all charges therefore shall be in such amounts as may be fixed by the director of public works, subject to the approval of the board of commissioners, except in emergency or unusual circumstances in order to protect the health and safety of the public or county or other public facilities, and with such cost to be fully reimbursed to the county. The director of public works shall, likewise in each case, estimate the cost of replacing permanent improvements and shall have authority to replace or require the replacement of all of a sidewalk or public road when it is necessary to put the sidewalk or public road in as good condition using materials of equal or better quality as before the excavation or opening. All such cost, whether computed from a schedule fixed by the director of public works or embodied in an estimate made under this article by the director of public works, shall be paid before the work is done by the county or the permit is granted, except in emergency circumstances.

(f)

Permit maintained on-site. The permit granted by the director of public works to conduct activities within the public rights-of-way or public road or sidewalk, shall be maintained on the work site and displayed to any official of the department of public works, police, or other county official upon request.

(g)

Signage. In order to identify the work during installation, the permittee shall place a card, or signs, on the public road near the work before beginning the work authorized by the permit. The sign shall be visible from the traveled way and shall be placed not less that six feet above the ground and at least one per mile. The sign or signs will be furnished to the applicant by the department of public works along with the approved permit.

(h)

Effective period of permit. If work begins within 12 months after issuance, and unless otherwise provided in the manual, the permit shall be in effect for an indefinite period of time from and after the date issued, unless sooner revoked by mutual consent or by the director for failure of the applicant to abide by the terms and conditions of the permit or by operation of law. A permit is automatically revoked when the activity for which the permit is issued ceases or is abandoned.

(i)

Notice of work beginning. Permittee shall notify the department of public works in writing at least 24 hours before starting any work under the permit. Permittee must present its work schedule and plan for traffic control for approval of the director or designee.

(j)

Notice of work completion. Permittee shall notify the department of public works when the work authorized by the permit is completed so that an inspection can be made by the department of public works to ensure that the provisions of the permit have been met and that all areas within the right-of-way or public road have been adequately restored.

(k)

Time limit on beginning work. If the applicant fails to commence installation of the utility facility or other miscellaneous activity covered by the permit within 12 months from the date the permit is issued, said permit shall be deemed null and void and all privileges thereunder forfeited, unless a written extension is obtained from the director.

(l)

Working without a permit. It shall be unlawful and a violation of this article to perform any of the activities relegated by this article within the public rights-of-way or public roads, without complying with the permit requirements promulgated by the department of public works or of this article. If any person commences any excavation or construction work, excluding emergencies as defined in this article, within the public rights-of-way or public roads without a permit, the person shall be in violation of this article and subject to all remedies available to the county, including, but not limited to, to the immediate cessation of all activities and removal of all equipment for the public road or right-of-way.

(m)

Signed application/indemnification agreement required. The director of public works shall not grant any permit to conduct construction or installation activities within the public right-of-way or for an excavation underneath sidewalks or public roads for any purpose, unless the application for that use in each instance is signed by the utility facility operator or owner of the proposed utility facility, who shall enter into an indemnification agreement with the county binding the utility facility operator or owner and the operator or owner's successor in title. The utility facility operator or owner shall agree to indemnify the county, it officers, employees and agents from any and all claims, litigation or damages to either persons or property, both public and private, caused by the installation, construction or maintenance of the excavation or opening and shall agree that the director of public works shall have the right to have said excavation closed and filled at any time the director of public works determines and the owner and/or its excavator/agent shall vacate the area beneath the public right-of-way, public road, or sidewalk when requested to do so by the county without cost to the county.

(n)

Supervision of work. All such excavations or openings, except as provided in this article for emergency work, shall be made and refilled and permanent improvements removed shall be replaced by or under the supervision of the director of public works or his/her designee. The work in each instance shall be done under the supervision and to the satisfaction of the director of public works. Any person violating this section shall be required to close the excavation or opening and remove any obstructions upon the direction of the director of public works. If such notice is not complied with, such encroachment shall be removed by the director of public works at the utility facility operator's or owner's expense.

(o)

Conditions of maintaining a permit.

(1)

The director of public works is authorized to establish and publish a list of conditions and requirements for all construction, repair, maintenance, and other activities within the public right-of-way and public road, including, among other things, the power to establish, from time-to-time the reasonable cost of reimbursable fees not inconsistent with this article. Said conditions shall contain, but shall not be limited to:

a.

Utility operator's or owner's providing a notice of any other known utility facilities at the described location which may be impacted by the work proposed under the permit and the date of the proposed work;

b.

Traffic protection plan;

c.

Emergency plan;

d.

Clear identification of all construction and maintenance sites, vehicles, metal plates and other obstacles with the name and phone number of the utility owner and the person performing the work;

e.

Construction plans to show length of cut, construction activity to install the equipment, size, type and location of utilities in the rights-of-way and technical specifications for road rehabilitation;

f.

Placement of warning signs identifying construction and excavation-site;

g.

Replacement of decorative sidewalk style and material;

h.

Coordination of excavation and paving activities between and among any persons;

i.

Placement and removal of paint markings for utility locations;

j.

Bonds, insurance and other financial protection for the county;

k.

As-built plans and drawings in a form specified by the department of public works. Permittee shall not be required to supply proprietary or trade secret information. No person shall artificially underestimate the size of their proposed system to evade the purpose of this article;

l.

Permittee shall provide to the department of public works a list identifying all subcontractors used by a permittee on a construction or excavation project. The list shall include the name and telephone number of the subcontractors; and

m.

Any other requirements, limitations, or conditions that the director of public works may deem necessarily and proper.

(p)

Maintenance work. Permittee shall at all times keep utility facilities authorized by the permit in a good state of repair from the standpoint of both structure and appearance. The director may revoke the permit and order removal of any utility facilities which become a hazard to the public or the roadway due to improper maintenance. The utility shall give 24-hours advance notice to the department of public works before undertaking any of the following maintenance activities within the county's right-of-way or public road:

(1)

Any work which requires the blocking of one or more traffic lanes for a period of time in excess of two hours.

(2)

Installation of any temporary structures which are to remain on the right-of-way.

(3)

The cutting, trimming or spraying of any trees or shrubs within the right-of-way.

(4)

Making any pavement cut except in an emergency.

(5)

Making any excavation within the roadbed which may remain open overnight.

(q)

Restoration of the right-of-way and public road. Upon the determination by the director of public works that all construction and excavation activity in the right-of-way or public road has ceased, within 48 hours of such determination, the utility facility operator or owner or their agent shall begin to restore the right-of-way or public road to its pre-construction condition, or to the condition determined by the public works director to meet county specification. The restoration of the right-of-way or public road shall include: The repaving of all roads and sidewalks, removal of temporary utility markings, the removal of all barricades, metal plates, temporary devices, obstructions, surplus excavation material and the restoration of the appropriate vegetation. However, trees and shrubs should be planted during the appropriate season, and reasonable accommodations shall be made for such, including payment to the county in an amount sufficient to replace the trees and shrubs. All restoration shall be completed within 15 business days after the end of construction or excavation activity. Failure to comply with this section will subject all persons to the maximum penalties as set forth in section 62-104 of this article.

(r)

Safety barriers; notice. It shall be the duty of all persons doing any kind of non-emergency work in the public roads of the county, such as paving, laying sewers, sidewalks and curbing, moving buildings or any other work that in any way obstructs free passage thereon to notify the director of public works at least 24 hours before the work is commenced and on its completion. It shall be the duty of the director of public works to see that this section is enforced, both as to the erection of barriers or enclosures and as to travel on the street by vehicles or otherwise during the time prohibited.

(s)

Performance bond. Persons performing construction or excavation work in the public right-of-way or public road shall, prior to initiating the construction or excavation work, provide to the county a performance and completion bond in the amount determined by either the county's risk manager or director of public works, to be adequate to either complete the proposed work impacting the public right-of-way or public road in its entirety or to restore the public right-of-way or public road to its preconstruction condition if the person fails to complete the work to the satisfaction of the director of public works. No work shall commence under the permit until the bond has been submitted to and approved by the director of public works or designee.

(t)

Insurance. The county's risk manager shall require the person conducting construction activities or excavation work within the public rights-of-way or public roads to obtain a policy of public liability and property damage insurance and affording coverage of not less than $200,000.00 for property damage resulting from a single occurrence, and $1,000.000.00 for the death or injury of any person, subject to a limit of $2,000,000.00 for injuries or death resulting from any single occurrence. The insurance policy or policies shall be with an insurance company authorized and licensed to do business in the State of Georgia, to protect the county from liability claims arising out of the permitted construction or excavation activities. These insurance requirements may be met by evidence of self-insurance, or any bona fide captive insurance or self insurance program acceptable to the county. A copy of the policy or policies, or certificate evidencing same, shall be submitted to the director of public works, and must be approved by him or the county's risk manager or his designee, before any work is commenced under the permit.

(u)

Guarding of temporary excavations. All persons conducting construction or excavation in any public road, sidewalk or public right-of-way for any purpose shall erect around the construction of excavation work, a fence or barrier adequate to protect the public from the excavation or construction work. When the excavation or construction is being performed across the sidewalk or at a place used by pedestrians, a bridge shall be erected over the excavation or construction work sufficient for the safe passage of the public. All construction or excavation activity shall be properly lighted at night as determined by the director of public works. The guarding and protection of excavations or construction work shall be in accordance with state law and with specifications promulgated by the director of public works and as set forth in the county's utility accommodations guidelines and procedures manual, on file in the office of the director of public works.

(Res. No. 02-0264, 2-20-02)