ORD NO. 2014-24 RIGHT OF WAY USEORDINANCE NO. 2014-24
AN ORDINANCE of the City of Bainbridge Island,
Washington repealing the existing Chapter 15.12,
Construction Work Affecting City Utilities, in its entirety
and adopting a new Chapter 15.12, Right -of -Way Use.
WHEREAS, the City of Bainbridge Island (the "City ") regulates construction
and uses in the right -of -way; and
WHEREAS, the City desires to address issues relating to right -of -way use not
previously addressed in the Bainbridge Island Municipal Code; now, therefore,
THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND,
WASHINGTON, DOES ORDAIN AS FOLLOWS:
Section 1. Chapter 15.12 of the Bainbridge Island Municipal Code,
Construction Work Affecting City Utilities, is hereby repealed in its entirety.
Section 2. A new Chapter 15.12 of the Bainbridge Island Municipal Code,
Right -of -Way Use, is hereby adopted to read as follows:
Chapter 15.12
RIGHT -OF -WAY USE
Sections:
15.12.010
Purpose.
15.12.020
Territorial application.
15.12.030
Construction - intent.
15.12.040
Definitions.
15.12.050
Authority of the director.
15.12.060
Permit required.
15.12.070
Additional permits.
15.12.080
Right -of -way use permits.
15.12.090
Applications and processing of permits.
15.12.100
Renewal of permits.
15.12.110
Permit exception.
15.12.120
Permit fees and charges.
15.12.130
Specifications.
15.12.140
Notice of intent to start work.
15.12.150
Inspections.
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15.12.160
Completion of use.
15.12.170
Shared use of excavations.
15.12.180
Underground utility location required.
15.12.190
Warning and safety devices.
15.12.200
Temporary parking restriction notification.
15.12.210
Materials testing.
15.12.220
Performance and warranty deposits.
15.12.230
Insurance.
15.12.240
Hold harmless.
15.12.250
Correction and discontinuance of unsafe, nonconforming or
unauthorized conditions.
15.12.260
Prohibition of illegal discharges.
15.12.270
Debris and spilled loads in the right -of -way.
15.12.280
Nuisance in the right -of -way.
15.12.290
Revocation of permits.
15.12.300
Stop work orders.
15.12.310
Adoption of policies.
15.12.320
Appeals.
15.12.330
Violation - penalty.
15.12.340
Enforcement.
15.12.010 Purpose.
It is the purpose of this chapter to provide for the issuance of right -of -way use permits
in order to regulate activities within the city's rights -of -way in the interest of public
health, safety and welfare and to provide for the fees, charges, performance and
warranty deposits, warranties and procedures required to administer the permit
process.
15.12.020 Territorial application.
The procedures set forth in this chapter shall be applicable to all rights -of -way within
the city.
15.12.030 Construction - Intent.
A. This chapter is enacted to protect and preserve the public health, safety and
welfare. It shall be liberally construed to accomplish these purposes.
B. The purpose of this chapter and any procedures adopted hereunder is to
provide for and promote the health, safety and welfare of the general public and not to
create or otherwise establish or designate any particular class or group of persons who
will or should especially be protected by or benefit from any procedures adopted
hereunder.
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C. The specific intent of this chapter and any procedures adopted hereunder
places the obligation of compliance upon the permittee. No provision is intended to
impose any duty upon the city, or any of its officers, employees, or agents. Nothing
contained in this chapter is intended to be, nor shall be, construed to create a basis for
liability on the part of the city or its officers, employees or agents for any injury or
damage resulting from the failure of a permittee to comply with the provisions hereof
or by reason or in consequence of any act or omission in connection with the
implementation or enforcement of this chapter or any procedures adopted hereunder
by the city, its officers, employees or agents.
15.12.040 Definitions.
Words and phrases used in this chapter shall have the following meanings unless the
context clearly indicates otherwise;
A. "Citation" means a written document initiating a proceeding pursuant to
Chapter 1.26 BIMC.
B. "City inspector" means the designated employee(s) of the department assigned
to inspect permitted work.
C. "Department" means the public works department or other department
designated by the director.
D. "Director" means the director of public works or his/her designated
representative.
E. "Emergency" means a condition of imminent danger to the health, safety, and
welfare of property or persons located within the city. This includes, but is not limited
to, damage to persons or property from natural or manmade occurrences, such as
storms, earthquakes, riots or wars.
F. "Engineering division" means the engineering division of the department.
G. "Franchised utilities" means utilities that have city approval to use city rights -
of -way in accordance with RCW 35A.47 for the purpose of providing their services
within the city, whether by written franchise granted by the city, state tariff, or other
similar city authorization.
H. "Notice of violation" means a document mailed to a permittee or unauthorized
user and posted at the site of a nonconforming or unsafe condition.
I. "Oral directive" means a directive given verbally by city personnel designated
by the director to correct or discontinue a specific condition.
J. "Permit" means a document issued by the city granting permission to engage
in an activity not allowed without a permit.
K. "Permittee" means the person so designated on the permit application, or
designee.
L. "Person" means and includes corporations, companies, associations, joint
stock companies or associations, firms, partnerships, limited liability companies and
individuals, and includes their lessors, trustees and receivers.
M "Private use" means use of the public right -of -way for the benefit of a person,
partnership, group, organization, company, or corporation, other than as a
thoroughfare for any type of vehicles, pedestrians or equestrians.
N. "Policy" means a policy adopted by the director to implement this chapter, or
to carry out other responsibilities assigned by codes, ordinances, or resolutions of the
city or other agencies.
O. "Revocation" means cancellation of an issued permit.
P. "Right -of -way" means all public streets and property granted or reserved for,
or dedicated to, public use for streets, walkways, sidewalks, bikeways, parking, and
horse trails, whether improved or unimproved, including the air rights, sub - surface
rights, and related easements.
Q. "Stop work order" means an oral directive or written notice posted at the site
of activity that requires all work to be stopped until the city approves continuation of
work.
R. "Suspension" means a temporary stay of a permit.
S. "Unsafe condition" means any condition which the director determines is a
hazard to health, or endangers the safe use of the right -of -way by the public. This
includes any condition that does or may impair or cause damage to any portion of the
right -of -way.
15.12.050 Authority of the director.
The director shall have the authority to:
A. Administer the provisions of this chapter including but not limited to interpreting
the chapter and issuing necessary rules and procedures.
B. Issue permits granting use of the rights -of -way in accordance with this chapter.
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C. Administer and coordinate the enforcement of this chapter and all policies adopted
hereunder relating to the use of rights -of -way.
D. Adjust the fees required by this chapter to be proportional to any increased scope
of work for which a permit is required.
E. Coordinate with other city departments to administer and enforce this chapter.
F. Assign responsibility for interpretation, application and enforcement of specified
procedures to department staff.
G. Correct any condition that is a violation of, or used contrary to, this chapter.
H. Revoke a permit.
15.12.060 Permit required.
A. It is unlawful for anyone to make private use of any public right -of -way without
first obtaining a right -of -way use permit from the city, or to use any right -of -way
without complying with all the provisions of such right -of -way use permit.
B. The city does not waive its right to use the right -of -way by issuance of any permit.
C. The city reserves the right to exempt those activities that are judged to be
incidental uses.
15.12.070 Additional permits.
Additional permits for any use of the right -of -way may be required by other city
codes.
15.12.080 Right -of -way use permits.
The following types of right -of -way use permits are established:
Permit
Regulates
Duration
Temporary street and /or sidewalk closures or
Type A - Short
blockage (moving trucks /vans, dumpsters,
30 days
Term Use
scaffolds, lifting equipment, house /modular /mobile
moving, oversize loads, special events)
Disturbance of the surface or the subsurface of the
Type BI -
right -of -way on a temporary or permanent basis
Disturbance of the
(boring, jacking, cutting or pushing; culverts, curb
30 days
Right -of -Way
cuts, handicap ramps, driveway approaches, curbs,
utters and sidewalks, drainage, painting, paving,
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1 year
30 days
5 years
1 year
1. Type A permits maybe issued for use of the right -of -way for up to 30 days if it
does not involve physical disturbance of the right -of -way, such as:
a. Temporary street and/or sidewalk closures.
b. Temporary blockage of streets and sidewalk, for uses such as moving
trucks or vans, dumpsters, scaffolds, and lifting equipment.
c. House /modular /mobile moving.
d. Oversize loads.
e. Special events.
2. Special events permits are provided for in accordance with Chapter 12.06
BIMC.
3. This type of use may involve disruption of pedestrian and vehicular traffic and
may require inspections, cleanup and traffic control.
4. For periods longer than 30 days the uses will be considered Type C, long -term
use.
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trenching, utility installation, road approaches, new
streets / unopened rights -of -way) _
Available to utility companies: (1) that fully
comply with city engineering standards for road
Type B2 - Annual
restoration using control density fill (CDF) for
Bulk Purchase
perpendicular cuts and full lane repaving for all
Right -of -Way
other disturbances, and (2) guarantee restoration of
Permit
any failures within 2 years of the final work day at
the permitted site, (3) are secured by the required
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bonding.
Disturbance of the surface or the subsurface of the
Each B 1 Permit
issued under Bulk
right -of -way on a temporary or permanent basis
Purchase
(Ref. Type B 1 above)
Type C - Long
_
Long -term right -of -way use for activities that will
Term Use
not further physically disturb the right -of -way once
in place
Franchised utilities only; performing routine
Type D - Franchised
maintenance on existing overhead lines and entry
Utility
into existing underground facilities. Does not
authorize disturbance of the surface or subsurface.
A. Type A - Short-term use.
1 year
30 days
5 years
1 year
1. Type A permits maybe issued for use of the right -of -way for up to 30 days if it
does not involve physical disturbance of the right -of -way, such as:
a. Temporary street and/or sidewalk closures.
b. Temporary blockage of streets and sidewalk, for uses such as moving
trucks or vans, dumpsters, scaffolds, and lifting equipment.
c. House /modular /mobile moving.
d. Oversize loads.
e. Special events.
2. Special events permits are provided for in accordance with Chapter 12.06
BIMC.
3. This type of use may involve disruption of pedestrian and vehicular traffic and
may require inspections, cleanup and traffic control.
4. For periods longer than 30 days the uses will be considered Type C, long -term
use.
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B. Type B Permits - Disturbance of the right -of -way.
1. Type B 1 permits may be issued for activities that alter the appearance of or
disturb the surface or the sub - surface of the right -of -way on a temporary or
permanent basis. Type B 1 permits are also required for the initial construction of
improvements within the right -of -way including privately maintained rights -of-
way required to conform to city standards. Type B 1 permits may be issued for up
to 30 days.
Type B 1 permits include, but are not limited to, activities associated with:
a. Boring, jacking, or pushing;
b. Construction adjacent to the right -of -way that may physically impact the
right -of -way;
C. Culverts;
d. Sidewalk impacts including curb cuts, handicap ramps and driveway
approaches;
e. Curbs, gutters and sidewalks;
f. Drainage;
g. Painting;
h. Paving;
i. Trenching;
j. Utility installation;
k. Road approaches; and
1. New streets / unopened rights -of -way.
2. Type B2- Annual Bulk Purchase Right -of -Way Permit.
a. Available to utility companies that: (1) fully comply with city
engineering standards for road restoration using control density fill
(CDF) for perpendicular cuts and full lane repaving for all other
disturbances, and (2) guarantee restoration of any failures within 2
years of the final work day at the permitted site, and (3) are secured
by the required bonding.
b. Type B 1 permits are required for activities that alter the appearance of or
disturb the surface or the subsurface of the right -of -way at a reduced fee.
C. Type C - Long -term use.
1. Type C permits may be issued for long -term right -of -way use for activities that
will not further physically disturb the right -of -way once in place. This may
include structures, facilities and uses that involve capital expenditures and a long-
term commitment of use. Sidewalk cafes and sidewalk retail displays are
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regulated by Chapter 12.36 BIMC and excluded from Type C permits.
2. Type C permits authorized by this chapter are of a temporary nature, vest
no permanent rights and are revocable as provided for in Section 15.12.290.
The director may suspend any right -of -way use permit for transportation
mobility or public safety purposes or to coordinate with permitted special
events authorized by Section 15.12.080 or any other permitted activity.
3. Type C permits may be issued or required for up to five years except as
provided for in subsection 8 below.
4. A Type B1 permit may be required for construction activities in conjunction
with Type C use.
5. Type C permits include but are not limited to:
a. Accessory business activities such as parking;
b. Air rights;
C. Bus shelters /stops;
d. Construction site/haul roads;
e. Fences;
f. Recycle receptacles, dumpsters and facilities;
g. Special and unique structures such as fountains, clocks, flagpoles,
benches, kiosks, banners, street furniture, and decorations;
h. Underground rights;
i. Landscaping; and
j. Waste facilities.
6. Signage uses, placement and specifications are regulated by Chapter 15.08
BIMC.
7. The permittee shall not create a condition that in any way restricts or
interferes with access to abutting properties; or creates a nuisance or hazard to
public health, safety, or welfare; or increases traffic congestion or delay; or
which constitutes an obstruction for fire, police, or sanitation vehicles.
8. Utilities placed in the right -of -way under the authority of a franchised utility as
defined in this chapter are exempt from the requirement to obtain a Type C permit.
9. Type A uses that exceed 30 days duration will be treated as Type C uses.
10. If a Type C permit is revoked or expires without renewal, the permittee must
remove improvements constructed in the right -of -way and restore it to its original
condition or better.
11. Under the following conditions, Type C permits may be issued for right -of-
way use for an extended term not to exceed ten years for activities such as the
installation and maintenance of structures, facilities and uses that involve capital
expenditures.
a. Type C permits will only be issued for extended terms unless the city
determines that:
i. There is no reasonable likelihood that the city will need to utilize
the area for which the permit is granted within the permit term;
ii. That the proposed use is consistent with the city's comprehensive
plan;
iii. That the use is not detrimental to the public health, safety, or
welfare; and
iv. That the proposed use is not aesthetically incompatible with the
city's standards.
b. At the end of the permit period, the permit may be renewed upon request
by the permittee and acceptance by the city for additional terms not to
exceed ten years. If the use of the right -of -way under the jurisdiction of a
Type C permit is changed so as to affect the permitted installation, the
director shall require the permittee to remove or modify the installation to
accommodate the new use of the right -of -way. The director shall set the
time for removal or modification. The time for removal or modification
shall be at least 90 days after the date the request for removal or
modification is submitted unless the director finds that a lesser amount of
the permitted installation shall be borne by the permittee.
D. Type D - Franchised utility routine maintenance permit.
1. Type D permits may be issued for franchised utilities, as defined in this
chapter, performing routine maintenance on existing overhead lines and for entry
into existing underground facilities. Type D permits may be issued for up to one
year.
2. Type D permits do not authorize disturbance of the surface or subsurface of
the right -of -way. Activities that disturb the surface or subsurface require a Type
B 1 permit.
3. Type D permits may be revoked if the permittee does not comply with the
requirements of this chapter. In the event the Type D permit is revoked, the
permittee must obtain a Type B 1 permit for each work site.
4. Obtaining an issued Type D permit does not abolish the requirement to obtain
a Type B 1 permit for construction activities.
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E. Assignment of Permit. Permits cannot be assigned or transferred, subleased, or
used for any purpose not specified in the permit without prior written permission of
the city. Any attempt to assign or transfer an interest in a permit shall be cause for
immediate revocation.
15.12.090 Permit applications and processing of permits.
A. To obtain a right -of -way use permit, the applicant shall file an application with the
department.
B. Every application shall include the following:
1. A scale drawing showing the location of the proposed right -of -way use; the
location of existing and proposed improvements, surface features such as curbs
and gutters, underground features such as the location of utilities, topographic
details such as ditches, wetlands, streams, bluffs, etc.; and the limits of the work
area;
2. A description of the proposed use;
3. The planned duration of the use;
4. Applicant contact information;
5. All other information which may be required as specified in policies adopted
hereunder;
6. An estimate of construction costs; and
7. Payment of the required fees.
C. The director shall examine each application to determine if adequate information
is provided and if it complies with the applicable provisions of this chapter. Other
departments that have authority over the proposed use will review and recommend
approval or disapproval of the application. If the director finds that the application
conforms to the requirements of this chapter, he or she may approve the permit
imposing such conditions as are reasonably necessary to protect the public health,
welfare and safety, to mitigate impacts resulting from the use and to coordinate
activities or address potential conflicts with other uses of the area.
D. Permit applications must be submitted at least ten working days prior to the
requested start, or as required to obtain other city permits.
E. Concurrent with submittal of a complete application, the applicant shall pay the
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established application fee.
15.12.100 Renewal of permits.
A. Type A and Type B 1 permits may be renewed without payment of an additional
fee for up to the length of the original permit at the discretion of the director. If a
permittee desires continued use of the right -of -way after expiration of a renewed
permit, he /she must apply for a new permit.
B. Type C and D permits cannot be renewed. Reapplication is required.
15.12.110 Permit exceptions.
A. A right -of -way use permit shall not be required of franchised utilities when
responding to emergencies, provided that the department shall be notified by the
responding utility or contractor verbally or in writing as soon as practicable following
the onset of an emergency. A utility or contractor must still apply for a right -of -way
use permit as provided in this chapter within 48 hours after beginning emergency
work in the right -of -way.
B. Permits are not required for routine maintenance and construction work performed
by the city.
C. Permits are not required for public works department construction projects.
D. Permits are not required for ordinary landscape maintenance in the right -of -way.
Blockage of the right -of -way associated with ordinary landscape maintenance requires
a permit.
15.12.120 Permit fees and charges.
A. Permit fees shall be set forth in a fee schedule adopted by city council by
resolution. Fees and charges adopted pursuant to this section may be increased or
decreased by the council on the city manager's recommendation in accordance with
changes in costs incurred by the city.
B. Fees and charges.
1. Type A, short-term use permit. A fee shall be charged for each Type A permit
accepted for processing. This fee shall cover the administrative cost of issuing the
permit.
2. Type B 1, disturbance of right -of -way permit. Type BI Permit fees shall be
established for the following categories:
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a. Repair of existing sidewalks, not associated with other development
activity.
b. A driveway approach, transverse street patch or spot patches or other
localized work;
c. Construction of new curb, gutter, and sidewalk, as well as patching;
d. Construction of a new street, extension of an existing street, construction
of a privately maintained street within the public right -of -way, frontage
improvements on an existing street and construction of a new pavement
surface;
e. Work in unimproved areas, such as boring pits in shoulders, landscaping,
etc; and
f. Fees established for permits include an initial review, initial site visit and
final inspection. Additional fees are assessed for additional levels of effort
associated with the permitted project.
3. Type C, long -term use permit. Fees for Type C long -term use permits shall
include the following categories:
a. Application and processing. A non - refundable application and processing
fee will be charged for each Type C permit application accepted for
processing;
b. Use Fee. A use fee will be established which incorporates the value of the
land used and the length of the use;
c. The director may modify or waive fees for Type C permits for government
agencies or improvements which provide a direct benefit to the city.
4. Type D, franchised utility, routine maintenance permit. A fee shall be charged
for each regular Type D permit accepted for processing. This fee shall cover the
administrative cost of issuing the permit.
C. The director will assign Type B 1 permit work to the most appropriate category and
establish a fixed fee or charge for city costs at an hourly rate for any special work not
covered in these categories.
D. Additional work. The city may establish fees for activities beyond normal and
customary services, such as repeated plan reviews or site inspections, special work,
inspection of re- worked areas, calls for inspection when the site is not ready and
construction site emergencies.
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E. Waiver of fees for city- initiated projects. Utilities in the right -of -way under the
authority of a franchise agreement, state tariff or other similar city authorization which
must apply for permits because of city- initiated construction projects, may be granted
a waiver of normal permit fees by the director. This provision only applies to work
that would not otherwise have been done by the utility.
15.12.130 Specifications.
All work performed under a right -of -way permit shall conform to all city codes, the
current development and construction standards of the department, and all other
standards used by the city including, but not limited to, the current version of the
Manual of Uniform Traffic Control Devices published by the Federal Highway
Administration and the Standard Specifications for Road, Bridge, and Municipal
Construction, as amended or superseded, published by the Washington State
Department of Transportation and the American Public Works Association.
15.12.140 Notice of intent to start work.
Permittee shall provide a minimum of one working day's notice of the intent to start
work in the right -of -way.
15.12.150 Inspections.
Consent to inspections by the department or other city representative is a condition of
issuance of every right -of -way use permit. Permittee shall provide a minimum of one
working day's notice prior to a requested or required inspection.
15.12.160 Completion of use.
At the completion of use of the right -of -way, the permittee shall:
A. Provide notice that the work is complete and request an inspection; and
B. Provide record drawings of the improvements made in the right -of -way when
required. Record drawings of improvements that are accepted for maintenance by the
city shall meet the format requirements of the city. All record drawings shall show at a
minimum the actual location, depth and profile of the improvements in the right -of-
way. Record drawings acceptable to the department must be provided prior to release
of the performance surety described in Section 15.12.220.A.
15.12.170 Shared use of excavations.
If a utility company submits a permit request to excavate, the city may request in
writing that such utility company provide an opportunity to install city facilities within
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the excavation provided that:
A. Such joint use shall not unreasonably delay the work of the utility company;
B. Such joint use shall be arranged and accomplished on terms and conditions
satisfactory to both parties and in accordance with the applicable codes, rules and
regulations; and
C. To the extent reasonably possible, the utility company shall, at the direction of the
city, cooperate with the city and provide other private utility companies with the
opportunity to utilize joint or shared excavations in order to minimize disruption and
damage to the right -of -way as well as to minimize traffic impacts.
15.12.180 Underground utility location required.
All permittees shall, before commencing any construction in the city right -of -way,
comply with Chapter 19.122 RCW, the one number locater service (811).
15.12.190 Warning and safety devices.
A. The permittee is responsible for the safety of the work area and shall provide and
maintain warning lights, safety devices, signs and barricades on all rights -of -way in
accordance with the specifications. Warning and safety devices may be removed
when the work for which the right -of -way use permit was granted is complete and the
right -of -way restored to the conditions directed by the department.
B. The director may require an applicant to submit a traffic control plan showing
proposed shoulder closures, lane closures, detour routing, parking adjustments, and the
location and type of warning lights, safety devices, signs and barricades intended to
protect vehicular or pedestrian traffic. If a traffic control plan is required, no right -of-
way use permit will be issued until the plan is approved.
C. The director may require that the permittee provide a certified Washington state
traffic control flagger to be on site during construction activities in order to monitor the
setup and maintenance of the warning and safety devices.
D. If flaggers are required to control traffic during construction, they will be either
properly attired and certified Washington state traffic control flaggers or off -duty law
enforcement officers.
E. Decisions of the director shall be final in all matters pertaining to the number, type,
location, installation and maintenance of warning and safety devices in the public
right -of -way. Lack of notice or comment by the city does not relieve the permittee of
responsibility for the safety of the work area.
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15.12.200 Temporary parking restriction notification.
A. If the director determines that parking is a hazard to through traffic, construction
work, or other right -of -way activity, he may restrict parking.
B. Parking restriction signs shall be placed at least 72 hours in advance of parking
removal with the start date of "no parking" clearly shown. The area to be restricted
shall be clearly marked with Type I barricades carrying signs that state the specific
period (dates and times) that the area is to be free of vehicles. Signs shall be large
enough to be easily read from a distance of 50 feet and advise where impounded
vehicles will be stored or indicate a 24 -hour telephone number for obtaining the
information.
C. The permittee shall be responsible for placement and maintenance of the signs as
approved by the director. The permittee shall notify the city when the signs are placed.
No vehicles shall be towed until the restricted parking signs have been in place for 72
hours or more.
D. All signs must be approved by the director prior to placement, and must conform
generally to the following wording:
WARNING! TOW AWAY ZONE
NO PARKING
FROM: DATE & TIME
TO: DATE & TIME
FOR CONSTRUCTION WORK
ALL VEHICLES WILL BE TOWED
(IMPOUND INFORMATION)
15.12.210 Materials testing.
Material tests may be ordered by the director to assure conformity with the
specifications stated in this chapter. Material tests may include, but are not limited to,
gradation analysis, compaction testing, concrete strength, asphalt content analysis and
pipe strength. The permittee shall have the material test performed by a certified
laboratory and the results provided to the city. Location and timing of material testing
shall be coordinated with the director.
15.12.220 Performance and warranty deposits.
A. Performance Surety. The city may require permit applicants to provide a
performance surety to ensure conformance with the plans, specifications and
standards. The minimum amount of the performance surety shall be 125 percent of
the estimated value of the work or the estimated cost to repair damage to existing
improvements as determined by the director. The performance surety shall not be
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released until after final acceptance of the permitted work and receipt of a warranty
deposit, if required.
B. Warranty Deposit. The city may require a warranty deposit to warrant the
workmanship and the material of the constructed improvements in the right -of -way for
a period of one year from the final inspection date. The minimum amount of the
warranty deposit shall be 20 percent of the value of the actual construction costs.
C. Deposit Instruments. The deposit instrument for the performance or warranty
deposit shall be cash, a non - revocable letter of credit, assignment of funds, bond or
other readily accessible source of funds approved by the city finance director. The
deposit instruments shall be on a form acceptable to the city finance director. Any
issuer of a deposit instrument shall pay invoices presented by the city pursuant to this
chapter within 45 days. A bond will be accepted only for amounts over $1,000 or
when state law requires a bond.
Interest on deposited funds will accrue to the benefit of the depositor, except any
interest earned on a cash deposit will be retained by the city for account
administration.
D. Notice of incomplete or defective work. If the director determines permitted work
to be incomplete or defective or observes a defect during the warranty period or other
activities which do not comply with the permit and shall require corrective action by
the permittee, the director shall notify the applicant in writing prior to applying
proceeds of the deposit to correct the work. The notice will state:
1. Work that must be done to comply with the requirements of the permit or
deposit;
2. The amount of time that the applicant has to complete the required work;
and
3. If the work is not completed within the time specified, the city will use the
proceeds of the deposit to have the required work completed.
E. Default on deposit.
1. If the work covered by the deposit is not completed within the time specified
in the notice given under this chapter, the city shall obtain the proceeds of the
deposit and do the work covered by the deposit. The city may either have
employees of the city or a contractor complete the work.
2. If, at any time, the director determines that actions or inactions associated with
permit work have created an emergency situation endangering public health,
safety or welfare, created a potential liability for the city or endangered city streets,
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utilities or property, and if the nature or timing of such an emergency precludes the
notification of applicants as provided in this chapter while still minimizing or
avoiding the effects of the emergency, the city may use the deposit to cover costs
incurred by the city to correct the emergency situation. The city may either have
employees of the city or a contractor complete the work. If the City uses the
deposit, as provided by this section, the applicant shall be notified in writing
within four working days of the commencement of emergency work. The notice
must state which work was completed and the nature or timing of the emergency
that necessitated the use of the deposit without prior notification.
3. The permittee is responsible for all costs incurred by the city in completing the
work covered by the deposit. The city shall release or refund any proceeds of any
deposit remaining after subtracting all costs incurred. The permittee shall
reimburse the city for any amount expended by the city that exceeds the deposit.
4. If the city uses any of the deposit it shall, within 30 days, provide the owner of
the permit an itemized statement of all proceeds and funds used.
15.12.230 Insurance.
A. General provisions. Before any permit is granted for the use of, or work within
the right -of -way, the permitee shall secure and deliver to the city and the director a
copy of comprehensive general liability insurance in the sum of $500,000 for bodily
damage and property. The city shall be listed as an additional insured on the policy.
Alternate methods of meeting these insurance requirements must be approved by the
city finance director.
B. Limited exception. A homeowner or tenant who repairs, constructs or uses the
right -of -way fronting his/her residence and who performs all the labor him/herself
shall not be required to obtain insurance as set forth in subsection A. Prior to the
issuance of such a permit, the homeowner or tenant shall be required to provide proof
of homeowners or renters insurance in the minimum amount of $100,000 for bodily
injury and property damage unless, in the director's discretion, this requirement is
waived after consideration of the nature of the proposed use or work and the need to
reasonably protect the city's interest as well as the health, safety and welfare of the
public.
15.12.240 Hold harmless.
As a condition to the issuance of any permit under this chapter, the permittee shall
agree to defend, indemnify and hold harmless the city, its officers, employees and
agents, from any and all suits, claims or liabilities caused by or arising out of any work
or use authorized by any permit.
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15.12.250 Correction and discontinuance of unsafe, nonconforming or
unauthorized conditions.
A. If at any time the director determines that any condition on any right -of -way is in
violation of any provision of this chapter, the director may order the correction or
discontinuance of such activity causing such condition.
B. The director is authorized to use any or all of the following methods in ordering
correction or discontinuance of any such activities as the director determines
appropriate:
1. Serving of oral directives to the permittee or other responsible person
requesting immediate correction or discontinuance of activity;
2. Service of a written notice of violation, ordering correction or discontinuance
within a reasonable period as the director may determine appropriate;
3. Issuance of an order to immediately stop work until authorization is received
from the city to proceed with such work;
4. Revocation or suspension of previously granted permits pursuant to this
chapter;
5. Issuance of a citation upon the permittee or other responsible person who is in
violation of this chapter; and
6. Seek to impose penalties pursuant to Chapter 1.24 BIMC.
15.12.260 Prohibited discharges.
No permitted activity shall be allowed that would cause the discharge of
pollutants or waters containing pollutants to discharge into the city's stormwater
drainage system or waters of the state in accordance with Chapter 15.22 BIMC.
15.12.270 Debris and spilled loads in the right -of -way.
A. The owner or operator of any vehicle that has spilled, dropped, dumped, tracked or
otherwise deposited any matter upon the right -of -way shall clean and remove the
material using suitable methods to the satisfaction of the department. If the
owner /operator fails to resolve the issue, the department shall have the right -of -way
cleaned and charged to the person or persons responsible. The department has
authority to designate haul routes and times of day for operations involving hauling
over the public right -of -way.
B. Earth- hauling contractors, builders or anyone else utilizing vehicles upon the right-
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of -way shall provide persons or equipment to keep the right -of -way clean at all times
to the satisfaction of the department. On failure to fulfill this obligation, the
department may issue an immediate stop work order, revoke city permits and direct
the responsible person or persons to immediately clean the right -of -way to the
satisfaction of the department.
15.12.280 Nuisance in the right -of -way.
A. Any object which occupies the right -of -way without a permit is declared a
nuisance. The department may attach a notice to any such object stating that if it is not
removed from the right -of -way within 24 hours, the object shall be taken into custody
and stored at the owner's expense. The notice shall provide an address and phone
number where additional information may be obtained. If the object is a hazard to
public safety, it shall be removed by the city without prior notice.
B. All expenses incurred by the city in abating the nuisance condition or in repairing
any damage to the right -of -way shall constitute a civil debt owed to the city jointly and
severally by such persons who have been given notice or who own the object or
placed it in the right -of -way, which debt shall be collectable in the same manner as any
other civil debt.
15.12.290 Revocation of permits.
A. The director may revoke any permit issued under this chapter when in the
director's sole determination:
1. The work or activity does not proceed in accordance with the approved plans,
conditions, or is not in compliance with the requirements of this chapter or other
city ordinances, state or federal law;
2. The city has been denied access to investigate or perform inspection;
3. The permittee has made a misrepresentation of a material fact in applying for a
permit; and
4. The progress or condition of the approved work, activity or excavation
indicates that it is inadequate to protect the public and adjoining property, the street
or utilities in the street.
B. Upon suspension or revocation of a permit, all use of the right -of -way shall cease,
except as authorized or directed by the director.
C. Notice of revocation shall be by letter.
D. A revocation may be appealed pursuant to this chapter.
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15.12.300 Stop work orders.
Work in the right -of -way may be suspended by the issuance of an oral or written stop
work order by a city inspector.
15.12.310 Adoption of policies.
The director may adopt policies and procedures to implement this chapter. Such
policies do not require approval by the city council.
15.12.320 Appeals.
An applicant whose application has been denied or permittee whose permit has been
revoked pursuant to this chapter must first request the director reconsider or reverse
the decision. If the director denies the request, the applicant or permittee may appeal
the decision to the administrative hearing examiner pursuant to Chapter 2.16 BIMC.
15.12.330 Violation — enforcement and penalty.
A. In addition to any other sanction or remedy that may be available, a violation of or
failure to comply with any provision of this chapter shall be a civil infraction and shall
be subject to enforcement and civil penalties as provided for in Chapter 1.26 BIMC.
B. A violation of or failure to comply with any provision of this chapter shall be a
misdemeanor punishable, upon conviction, as provided for in Chapter 1.24 BIMC.
Section 3. If any one or more section, subsections or sentences of this ordinance are
held to be unconstitutional or invalid, such decision shall not affect the validity of the
remaining portion of this ordinance and the same shall remain in full force and effect.
Section 4. This ordinance shall take effect on and be in force five (5) days from and
after its passage, approval and publication as required by law.
PASSED by the City Council this 11 th day of August, 2014.
APPROVED by the Mayor this 11th day of August, 2014.
ATTEST /AUTHENTICATE:
Rosalind D. Lassoff, CM C, City Clerk
AI114e S. Blair, Mayor
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FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NUMBER:
July 1, 2014
August 11, 2014
August 15, 2014
August 20, 2014
2014 -24
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