Chapter 12.05 USE AND MAINTENANCE OF PUBLIC RIGHTS-OF-WAY

(2) It is unlawful for anyone to make private use of any public right-of-way without a right-of-way use permit issued by the City, or to use any right-of-way without complying with all the provisions of a permit issued by the City.

(3) Additional permits for any use may be required by other City codes or ordinances. The City does not waive its right to use of the right-of-way by issuance of any permit under the provisions of this chapter. [Ord. 1578 § 17, 2013.]

12.05.030 Purpose.

It is the purpose of this chapter, in order to protect the interest of the public health, safety, and welfare, to provide for the issuance of right-of-way use permits to regulate activities within the right-of-way in the City, provide for the maintenance of the right-of-way and provide for the fees, charges, warranties, and procedures required to administer the permit process. [Ord. 1578 § 18, 2013.]

12.05.040 Authority.

Rights-of-way permits shall be issued by the Planning, Building and Public Works Director or approved by the City Council as is set forth in DMMC 12.05.060. [Ord. 1578 § 19, 2013.]

12.05.050 Right-of-way use permits.

(1) The following types of right-of-way use permits are established:

(a) Type A – Short-Term, Noninvasive.

(i) Type A permits may be issued for use of a right-of-way for 72 or less continuous hours which do not involve the physical disturbance of the right-of-way.

(ii) This type of use may involve disruption of pedestrian and vehicular traffic or access to private property including temporary street closures and may require inspections, cleanup, and police surveillance.

(b) Type B – Invasive.

(i) Type B permits may be issued for use of a right-of-way for activities that will alter the appearance of or disturb the surface, supersurface, or subsurface of the right-of-way on a temporary or permanent basis.

(i) Type C permits may be issued for use of a right-of-way for activities for extended periods of time but which will not physically disturb the right-of-way.

(ii) The use of a right-of-way for structures, facilities, and uses that involve capital expenditures and long-term commitments of use require this type of permit. [Ord. 1578 § 20, 2013.]

12.05.060 Applications and processing of permits.

(1) To obtain a right-of-way use permit the applicant shall file an application with the Planning, Building and Public Works Department.

(2) Every application shall include the location of the proposed right-of-way use, a description of the use, the planned duration of the use, applicant contact information, and all other information which may be required as specified in procedures adopted under this chapter, and shall be accompanied by payment of the required fees.

(3) The Planning, Building and Public Works Director shall examine each application submitted for review and approval to determine if it complies with the applicable provisions of this chapter and procedures adopted under this chapter. Other departments that have authority over the proposed use or activity may be required to review and approve or disapprove the application. The Planning, Building and Public Works Director may inspect the right-of-way proposed for use to determine any facts which may aid in determining whether a permit should be granted. If the Planning, Building and Public Works Director finds that the application conforms to the requirements of this chapter and procedures adopted under this chapter, that the proposed use of such right-of-way will not unduly interfere with the rights and safety of the public, and if the application has not been disapproved by a department with authority, the Planning, Building and Public Works Director may approve the permit, and may impose such conditions thereon as are reasonably necessary to protect the public health, welfare, and safety and to mitigate any impacts resulting from the use.

Notwithstanding the above, City Council approval by resolution shall be required for a right-of-way use permit for any use or event that is outside of the City’s ordinary course of business and:

(a) Involves the use of a City right-of-way for more than 24 hours; or

(b) Shuts down a major arterial street for more than 24 hours; or

(d) Allows concessions for sale of food, drinks, merchandise or services; or

(e) Where the expected attendance at the event utilizing the right-of-way is over 100 persons.

(4) All applications for permits will be submitted 90 days or more before the planned need for the permit unless the time period is waived, in writing, by the Planning, Building and Public Works Director for good cause.

(5) Upon submittal of a completed application, the Planning, Building and Public Works Department shall collect from the applicant an application fee in the amount set forth in the current fee schedule adopted by the City Manager. [Ord. 1578 § 21, 2013.]

12.05.070 Permit fees and charges.

The fee for each permit shall be set forth in a fee schedule to be adopted by the City Manager.

(1) Application Fee. A nonrefundable application fee shall be charged for each right-of-way use permit application that is accepted for processing. This fee covers the costs of initial processing, counter service, and recordkeeping. The application fee shall be the same for all types of right-of-way use permits.

(2) Daily Use Fee. All permits shall include a fee for each day (or part thereof) of use of the right-of-way. The fee will compensate the City for monitoring and inspecting the site.

(3) Large Structure Move Charges. When a permit allowing a large structure to be moved over the City’s right-of-way is issued, the City shall impose an additional charge based on the actual cost to compensate for its time and expense. These costs may include the costs for street crews, signal crews, and police, if required to assist in the move. A minimum fee will be established and charged at the time of such permit issuance. A refundable deposit will also be required. Costs for damage to City property occurring as a result of the move, or assistance on the house move by City crews, shall either be deducted from the deposit or billed to the house or building mover and permittee directly.

(4) Repair and Replacement Charges. If the City should incur any costs in repairing or replacing any property as the result of a permittee’s actions, the costs of repair and replacement will be charged to the permittee. These charges will be for the actual costs to the City.

(5) Persons using rights-of-way by permit will be required and shall agree to protect, defend, save, and hold the City, its elected and appointed officials and employees, while acting within the scope of their duties, harmless from and against all claims, demands, and causes of action of any kind or character, including the cost of defense thereof, arising in favor of a person or group’s members or employees or third parties on account of any action, including but not limited to personal injuries, death, or damage to property arising out of the use of City rights-of-way, or in any way arising out of the acts or omissions of the person, group, and/or its agents, employees or representatives.

(6) During all periods of use, persons using City rights-of-way by permit shall obtain and maintain public liability insurance in such form and amounts as determined and approved by the City.

(7) Costs. The permittee shall reimburse the City its costs of supporting the event, including, but not limited to, police, parks, marina, and public works costs.

(8) Waiver of Fees and Costs.

(a) Franchised utilities which must apply for permits because of City-initiated construction projects may be granted a waiver by the Planning, Building and Public Works Director of normal permit fees. This provision shall only apply to work that would not normally have been done by the utility.

(b) The City Council may, in its sole discretion, waive normal permit fees and the reimbursement of the City’s costs of supporting an event if it finds that there is or has been a significant public benefit for the event. [Ord. 1578 § 22, 2013.]

12.05.080 Specifications.

All work to be performed under any permit issued under this chapter shall conform to all other City codes and ordinances, the current Street Development Standards of the Planning, Building and Public Works Department, and all other standards used by the City in the administration of this Title. [Ord. 1578 § 23, 2013.]

12.05.090 Permit exception.

(1) A right-of-way use permit shall not be required of franchised utilities or City contractors when responding to emergencies that require work in the right-of-way, such as water or sewer main breaks, gas leaks, downed power lines, or similar emergencies; provided, that the Department shall be notified by the responding utility or City contractor verbally or in writing, as soon as practicable following onset of an emergency. Nothing in this chapter shall relieve a responding utility or City contractor from the requirement to obtain a right-of-way use permit after beginning emergency work in the right-of-way.

(2) Permits shall not be required for routine maintenance and construction work performed by City utilities and City maintenance crews. [Ord. 1578 § 24, 2013.]

12.05.100 Revocation of permits.

(1) The Planning, Building and Public Works Director may revoke or suspend any permit issued under this chapter whenever:

(a) The work does not proceed in accordance with the plans as approved, or conditions of approval, or is not in compliance with the requirements of this chapter or procedures, or other City ordinances, resolutions, or state law;

(b) The City has been denied access to investigate and inspect how the right-of-way is being used;

(d) The progress of the approved activity indicates that it is or will be inadequate to protect the public and adjoining property or the street or utilities in the street, or any excavation or fill endangers or will endanger the public, the adjoining property or street, or utilities in the street.

(2) Upon suspension or revocation of a permit, all use of the right-of-way shall cease, except as authorized or directed by the Planning, Building and Public Works Director. [Ord. 1578 § 25, 2013.]

12.05.110 Renewal of permits.

Each permit shall be of a duration as specified on the permit and may not be renewed. If continued use of the right-of-way is desired by the permittee after expiration of a permit, he/she must apply for a new permit. [Ord. 1578 § 26, 2013.]

12.05.120 Performance deposits/insurance.

(1) If the Planning, Building and Public Works Director determines that there is a potential for injury, damage, or expense to the City as a result of damage to persons or property arising from an applicant’s proposed use of any right-of-way, the applicant shall be required to make a cash deposit with the City Clerk or to provide a security device or insurance in a form acceptable to the Planning, Building and Public Works Director for the activities described in the subject permit. The amount of the cash deposit, security device, or insurance shall be determined by the Planning, Building and Public Works Director.

(2) The requirements for performance deposits and insurance are based on considerations of applicant’s prior performance, nature of the proposed use, cost of the activity, length of use, public safety, potential damage to right-of-way, and potential liability or expense to the City. [Ord. 1578 § 27, 2013.]

12.05.130 Guarantee.

When there is a need to ensure conformance with the City’s Street Development Standards, City or state construction standards, or other requirements, the applicant shall be required to provide a guarantee of workmanship and materials for a period of 10 years. Such guarantee may be in the form of a cash deposit or a security device in a form and amount approved by the Planning, Building and Public Works Director. [Ord. 1578 § 28, 2013.]

12.05.140 Inspections.

As a condition of issuance of any permit or authorization which requires approval of the Planning, Building and Public Works Department, each applicant shall be required to consent to inspections by the Planning, Building and Public Works Department or any other appropriate City department. [Ord. 1578 § 29, 2013.]

12.05.150 Correction and discontinuance of unsafe, unconforming, or unauthorized conditions.

(1) Whenever the Planning, Building and Public Works Director determines that any condition on any right-of-way is in violation of, or any right-of-way is being used contrary to any provision of this chapter or procedures adopted under this chapter or other applicable codes or standards, or without a right-of-way use permit, the Planning, Building and Public Works Director may order the correction or discontinuance of such condition or any activity causing such condition.

(2) The Planning, Building and Public Works Director is authorized to order correction or discontinuance of any such condition or activities following the methods specified in procedures adopted pursuant to this chapter.

(3) The Planning, Building and Public Works Director shall also have all powers and remedies which may be available under state law, this chapter, and procedures adopted under this chapter for securing the correction or discontinuance of any condition specified in this section.

(4) The Planning, Building and Public Works Director is authorized to use any or all of the following methods in ordering correction or discontinuance of any such conditions or activities as the Planning, Building and Public Works Director determines appropriate:

(a) Serving of oral or written directives to the permittee or other responsible person requesting immediate correction or discontinuance of the specified condition;

(b) Service of a written notice of violation, ordering correction or discontinuance of a specific condition or activity within five days of notice, or such other reasonable period as the Planning, Building and Public Works Director may determine;

(c) Revocation of previously granted permits where the permittee or other responsible person has failed or refused to comply with requirements imposed by the City related to such permits;

(d) Issuance of an order to immediately stop work until authorization is received from the City to proceed with such work;

(e) Service of summons and complaint certified by the City Attorney or a citation and notice to appear by an arresting peace officer upon the permittee or other responsible person who is in violation of this chapter or other City ordinances.

(5) Any object or thing which shall occupy any right-of-way without a permit is a nuisance. The Planning, Building and Public Works Department may attach a notice to any such object or thing stating that if it is not removed from the right-of-way within 24 hours of the date and time stated on the notice, the object or thing may 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 or thing is a hazard to public safety, it may be removed summarily by the City. Notice of such removal shall be thereafter given to the owner, if known. This section shall not apply to motor vehicles.

(6) All expenses incurred by the City in abating the condition or any portion thereof shall constitute a civil debt owing to the City jointly and severally by such persons who have been given notice or who own the object or thing or placed it in the right-of-way, which debt shall be collectible in the same manner as any other civil debt.

(7) The City shall also have all powers and remedies which may be available under law, this chapter, and procedures adopted under this chapter for securing the correction or discontinuance of any conditions specified by the City. [Ord. 1578 § 30, 2013.]

12.05.160 Warning and safety devices.

(1) Warning lights, safety devices, signs, and barricades shall be provided on all rights-of-way when at any time there might be an obstruction or hazard to vehicular or pedestrian traffic. All obstructions on rights-of-way shall have sufficient barricades and signs posted in such a manner as to indicate plainly the danger involved. Warning and safety devices may be removed when the work for which the right-of-way use permit has been granted is complete and the right-of-way restored to the conditions directed by the Planning, Building and Public Works Department.

(2) As a condition for the issuance of any right-of-way use permit, the traffic engineer may require an applicant to submit a traffic detour plan showing the proposed detour routing and location and type of warning lights, safety devices, signs, and barricades intended to protect vehicular or pedestrian traffic at the site for which the right-of-way use permit is requested. If a traffic plan is required, no right-of-way use permit shall be issued until the traffic plan is approved.

(3) Unless otherwise specified in adopted right-of-way use procedures, the current editions of the following standard manuals shall apply to the selection, location, and installation of required warning and safety devices; provided, that the traffic engineer may impose additional requirements if site conditions warrant such enhanced protection of pedestrian or vehicular traffic:

(a) Manual on Uniform Traffic Control Devices for Streets and Highways, as adopted by the Federal Highway Administration;

(b) Street Development Standards, Planning, Building and Public Works Department;

(4) Any right-of-way use permit that requires a partial lane or street closure shall require a licensed flag person, properly attired, or an off-duty police officer for the purpose of traffic control during the construction.

(5) All decisions of the designated street use official shall be final in all matters pertaining to the number, type, locations, installation, and maintenance of warning and safety devices in the public right-of-way during any actual work or activity for which a duly authorized right-of-way use permit has been issued.

(6) Any failure of a permit holder to comply with the oral or written directives of the street use official related to the number, type, location, installation, or maintenance of warning and safety devices in the public right-of-way shall be handled as provided for in this chapter. [Ord. 1578 § 31, 2013.]

12.05.170 Clearance for fire equipment.

All excavation work shall be performed and conducted so as not to interfere with access to fire stations and fire hydrants. Materials or obstructions shall not be placed within 15 feet of fire hydrants. Passageways leading to fire escapes or firefighting equipment shall be kept free from obstructions at all times. [Ord. 1578 § 32, 2013.]

12.05.180 Protection of adjoining property – Access.

The permittee shall at all times and at the permittee’s expense, preserve, and protect from injury any adjoining property by providing proper foundations and taking other measures which, in the opinion of the Planning, Building and Public Works Director, are suitable for such purposes. The permittee shall at all times maintain adequate access to all property adjoining the excavation or work site. [Ord. 1578 § 33, 2013.]

12.05.190 Preservation of monuments.

The permittee shall not disturb any surface monuments or hubs found on the line of excavation work until ordered to do so by the Planning, Building and Public Works Director. All street monuments, property corners, bench marks, and other monuments disturbed during the progress of the work shall be replaced by the Planning, Building and Public Works Director, and the cost of the same shall be paid by the permittee. [Ord. 1578 § 34, 2013.]

12.05.200 Protection of watercourses.

The permittee shall provide for the flow of all watercourses, sewers, or drains intercepted during the excavation work and shall replace the same in as good condition as it/he/she found them, or shall make such provisions for them as the Planning, Building and Public Works Director may direct. The permittee shall not obstruct the gutter of any street, but shall use all proper measures to provide for the free passage of surface water. The permittee shall make provision to take care of all surplus water, muck, silt, slickings, or other runoff pumped from excavations or resulting from sluicing or other operations, and shall be responsible for any damage resulting from its/his/her failure to so provide. [Ord. 1578 § 35, 2013.]

12.05.210 Excavated materials.

All excavated material which is piled adjacent to the excavation shall be piled and maintained in such manner so as not to endanger those working in the excavation or pedestrians or users of the right-of-way. When the confines of the area being excavated are too small to permit the piling of excavated material beside the excavation, the Planning, Building and Public Works Director shall have the authority to require the permittee to haul the excavated material to a storage site and then rehaul it to the excavation at the time of backfilling. It is the responsibility of the permittee to secure the necessary permission and make all necessary arrangements for any required storage and disposal of excavated material. [Ord. 1578 § 36, 2013.]

12.05.220 Backfilling.

Backfilling in a right-of-way opened or excavated pursuant to a permit issued under the provisions of this chapter shall be compacted to a degree equivalent to that of the undisturbed ground in which the excavation was begun, unless the Planning, Building and Public Works Director determines a greater degree of compaction is necessary to produce a satisfactory result. All backfilling shall be accomplished according to City standards and specifications and shall meet the approval of the Planning, Building and Public Works Director. All backfills shall be inspected and approved by the Planning, Building and Public Works Director prior to any overlaying or patching. [Ord. 1578 § 37, 2013.]

12.05.230 Right-of-way restoration.

(1) Permanent restoration of the right-of-way shall be made by the permittee in strict accordance with the standards and specifications of the City and in a manner meeting the approval of the Planning, Building and Public Works Director. Permanent restoration may include overlays of portions of the right-of-way which have been disrupted by the excavation work.

(2) The permittee shall guarantee and maintain the site of the excavation work to City standards and specifications for a period of not less than 10 years following the completion of the restoration and acceptance by the City. Acceptance or approval of any excavation work or right-of-way restoration by the Planning, Building and Public Works Director shall not prevent the City from asserting a claim against the permittee and his or its surety under the surety bond required by this chapter for incomplete or defective work, if such incompleteness or defective work is discovered within the period of guarantee and maintenance. The presence of the Planning, Building and Public Works Director during the performance of an excavation work shall not relieve the permittee of its responsibilities under this chapter. [Ord. 1578 § 38, 2013.]

12.05.240 Coordination of right-of-way construction.

The applicant, at the time of submitting an application for a Type C right-of-way use permit, shall notify all other public and private utility entities known to be using or proposing to use the same right-of-way of the applicant’s proposed construction and the proposed timing of such construction. Such entity notified may, within seven days of such notification, request of the Planning, Building and Public Works Director a delay in the commencement of such proposed construction for the purpose of coordinating other right-of-way construction with that proposed by the applicant. The Planning, Building and Public Works Director may delay the commencement date for the applicant’s right-of-way construction for 90 days or less, except in case of emergencies, if he/she finds that such delay will reduce inconvenience to City right-of-way uses from construction activities and he/she finds that such delay will not create undue economic hardship on the applicant. [Ord. 1578 § 39, 2013.]

12.05.250 Duty to maintain clean rights-of-way.

No person shall wilfully or negligently cause or allow dirt, mud, rocks, vegetation, grease, oil, or other foreign material or substance to be deposited, stored, abandoned, discharged, or spread on a public street, alley, sidewalk, walkway, trail, shoulder, or storm water facility. [Ord. 1671 § 5, 2017: Ord. 1578 § 40, 2013.]

12.05.260 Billings and collections.

The Planning, Building and Public Works Department, jointly with the Finance Director, may establish administrative rules and procedures pertaining to the billing and collection of fees and charges adopted pursuant to this chapter. [Ord. 1578 § 41, 2013.]

12.05.270 Appeals.

A decision of the Planning, Building and Public Works Director made in accordance with this chapter shall be considered a final administrative decision. A person aggrieved by such decision of the Planning, Building and Public Works Director may appeal such decision to the Hearing Examiner in accordance with DMMC 18.20.150 and 18.20.160 and chapter 18.240 DMMC. The City Manager or the City Manager’s designee may at any time prior to the decision of the Hearing Examiner review and revise such decision by the Planning, Building and Public Works Director. If a resolution by the City Council is required, any appeal shall be only to the Superior Court as allowed by law. [Ord. 1578 § 42, 2013.]

12.05.280 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, for any and all suits, claims, or liabilities caused by or arising out of any use authorized by any such permit. [Ord. 1578 § 43, 2013.]