Chapter 12.28
CONSTRUCTION IN CITY RIGHTS-OF-WAY
Sections:
12.28.030 Work in right-of-way.
12.28.060 Performance/warranty guarantee for permits and insurance.
12.28.070 Provider’s proposed plans – Director’s review.
12.28.080 City planning meetings.
12.28.090 Infrastructure standards and “as-built” information.
12.28.110 Joint use of provider infrastructure.
12.28.120 City costs and expenses – Provider initiated projects.
12.28.130 Provider payments to the City – Collections.
12.28.140 City required utility locates for design.
12.28.150 Suspension and/or revocation of a permit.
12.28.170 Construction standards/City laws.
12.28.190 Administrative regulations.
12.28.010 Definitions.
City work means capital projects of the City, or other City digging or excavating in ROW, according to the schedule adopted by the City Manager, notice of which can be obtained at the City Manager’s office at City Hall.
Construction plans means the provider-supplied P.E. stamped plans and standards for all provider work in the ROW. Construction plans shall be stamped by a professional engineer if required by the Director or § 12-25-101, C.R.S. et seq.
Contact information means name, title, e-mail address, physical and mailing address and telephone number of each person to whom inquiries and requests for decisions may be directed and who has decision-making authority to bind the provider, pursuant to this chapter. If more than one person must be identified so that the City may locate a contact person at all reasonable times in response to emergencies, the provider must supply the City Manager with a prioritized list containing contact information for each person on the list.
Digging means to dig, cut, excavate, move any earth, remove any earth by any means, auger, backfill, bore, ditch, drill, grade, plow-in, pull-in, rip, scrap, trench and/or tunnel.
Dry means wires, pipes other than wet, cables, fiber optics, electrical lines.
Franchisee means any provider that is also a franchisee with terms regarding relocation of such provider’s facilities at the direction of the City, namely Public Service Company of Colorado and Grand Valley Rural Power Lines, Inc.; and a political subdivision of the State of Colorado that is also a provider, such as Ute Water Conservancy District, Clifton Water District, the Grand Junction Drainage District, Orchard Mesa Sanitation District, Central Grand Valley Sanitation District, or other Title 32 districts.
Infrastructure includes the wires, pipes (of metal, plastic, PVC or otherwise), valves, connections, conduits, gas lines, water lines, sewer lines, fiber optics, irrigation pipes and canals and conveyancing devices, cable television, and the various connecting junctions and connectors. Infrastructure includes publicly and privately owned and operated facilities. Unless the City Manager finds another reasonable basis, based on an industry standard, to measure or determine a “unit” of a provider’s infrastructure for purposes of determining City costs, or a duty to upgrade, or a duty to replace to meet standards, 400 feet of length of infrastructure shall constitute one unit or element of infrastructure.
Locate or locates means to establish and in compliance with the locate law and the terms of this chapter.
New provider means a person or entity of whatever form who has not previously given notice to the City under this chapter, or who has otherwise been made subject to the requirements of a new provider.
Overall plan means the provider’s overall map or maps of the City ROW, with explanatory text, indicating which streets, alleys and other ROW the provider desires to use, and when, to place the provider’s facilities. Explanatory text must describe what specific facilities are proposed and what services the provider expects to offer to what customers.
P.E. means a Colorado licensed professional engineer, pursuant to § 12-25-101, C.R.S. et seq., or a successor statute.
Pot hole means to dig or to excavate in order to locate infrastructure or other facility.
Provider means a public utility, a provider of services to the public, a governmental subdivision or another person or entity who has, or desires to have, infrastructure or other pipes in City ROW, including homeowner and similar associations, but excluding service lines for individual structures and open ditches, canals, underground pipelines and other related facilities associated with the Grand Valley Water Users Association and the Orchard Mesa Irrigation District systems.
Replace or replacing or replacement means to dig, expose, fix or reconstruct, in whole or part, upgrade, patch or similar activities performed with the goal of gaining use or reuse; except that repairs ordinary to the provider’s work, and routine maintenance, is not within this definition.
Revocable permit. For this chapter only, a revocable permit may be issued by the Director for the reasons set forth in the recitals and legislative history of this chapter.
ROW means streets, alleys, highways, boulevards, avenues, roads, ROW owned or other ROW controlled or owned by the City within the limits of the City.
Service line means a water or sewer line that connects a business, residence or other structure to the provider’s infrastructure or system.
Unit means a discrete segment of City ROW between intersections, or 400 feet of ROW, as determined by the Director.
Utility locations means as indicated on Attachment A.
Attachment A
Joint trench details means as indicated on Attachment B.
Attachment B
Wet means water, sanitary sewer, storm sewer, drainage, natural gas and other fluids or gases.
Work means any change to any facility, infrastructure or portion of any ROW, including digging and excavating and replacements.
(Ord. 3715, 1-19-05. Code 1994 § 38-201)
12.28.020 Revocable permits.
(a) If the terms of a voter-approved franchise are inconsistent with or conflict with the terms of this chapter, the terms of the voter approved franchise shall control. In general, the review and permitting provided for by this chapter is to be accomplished on a project by project basis. In some circumstances a revocable permit may be required.
(b) Consistent with the requirements of the Federal Telecommunications Act of 1996, the City Council may approve variations from the terms of this chapter, as needed to implement specific technical needs of providers, in the form of a revocable permit. A revocable permit is the term used in and authorized by the City Charter, although it is recognized that the Charter language that ostensibly would allow the Council to terminate such a permit without cause on 30 days’ notice has been preempted by applicable federal laws, discrimination contrary to the Telecommunications Act of 1996, or regulate the provision of telecommunications services.
(c) A revocable permit, pursuant to the City’s Charter, ordinarily can only be issued by the City Council. Because the Telecommunications Act of 1996 preempts inconsistent local government provisions, and because quick administrative issuance of a permit or license to a telecommunications provider would not violate any such preemptive law, the Council determines that the extraordinary step of delegating to the Director the power and duty to issue revocable permits pursuant to this chapter is mandated by federal law and is hereby authorized.
(Ord. 3715, 1-19-05. Code 1994 § 38-202)
12.28.030 Work in right-of-way.
(a) It shall be unlawful for any provider, entity or telecommunications provider as defined by the Telecommunications Act of 1996, within, under, in, through or on any City owned or controlled ROW within the limits of the City, to replace or dig as defined herein, unless such person is a franchisee, has obtained a revocable permit as described herein, or is certified by Colorado’s Public Utilities Commission and unless such replacing or digging is performed in compliance with the provisions of this chapter; and
(b) The terms of any permit, franchise and revocable permit, and generally accepted engineering standards, including construction testing and inspection, and the other provision of this chapter shall apply to each such franchisee, local government, and revocable permittee;
(c) This chapter shall not apply to irrigation systems including open ditches, canals, underground pipelines and related facilities associated with a federal water project to the extent application of the chapter is prohibited by the June 17, 1902, Federal Reclamation Act.
(Ord. 3715, 1-19-05. Code 1994 § 38-203)
12.28.040 Notice.
(a) Before beginning work, replacing, digging or making any use of any ROW, a provider shall give written notice of its proposed work at least 15 City business days before beginning any such work or digging. The notice required by this section shall be reduced to five days if a different customer service standard has been approved or is made applicable by the Colorado Public Utilities Commission.
(b) If due to workload or other considerations, 15 days is not sufficient to adequately evaluate the notice and address possible impacts on the City or other providers, the Director may lengthen the advance notice period up to a total of 45 days.
(c) Advance notice for a new provider shall be 30 days, unless extended by the Director up to a total of 60 days.
(d) For the notice to be adequate, the provider shall supply the following information:
(1) For out-of-State providers and contractors, proof of authority to do business in Colorado;
(2) Proof of Colorado worker’s compensation coverage;
(3) The name and street address of the provider, including State, City and area code;
(4) Contact information for the provider;
(5) The name, address and contact information for each contractor before such person(s) does any work or digs in any ROW;
(6) The business telephone number of the president, chief executive officer or other decision-maker of each such provider and contractor. The provider or contractor may each designate another individual so long as such designee has the requisite authority to make decisions for the provider or contractor regarding the matters regulated herein, and if the contact information for such designee is provided;
(7) A proposed work plan showing:
(i) What specific locations and segments of ROW will be affected;
(ii) When each such ROW will be used and affected;
(iii) The location, depth and width of any cuts, digging or other work within the ROW;
(iv) How, if at all, the proposed work or digging will interfere with any City work and how the provider will mitigate or minimize the interference;
(v) How warranty work will be secured;
(vi) How the provider intends to repair or replace any damaged ROW, including any facilities and infrastructure located within the ROW;
(8) Traffic control plan, as necessary.
(e) The Director shall issue the construction permit. Unless all or a part is prohibited by other applicable law, the provider shall pay the cost of the permit which shall be equal to the City’s reasonable estimate of the actual costs required to process, issue, review the proposed work, make inspections during the work, perform field and other tests, and generally monitor the activities pursuant to the permit. From time to time, the City Council may adopt a schedule of average actual costs, based on prior experience, which sets the cost of such permits.
(f) If a provider cannot first provide notice and obtain a construction permit due to a bona fide emergency, the provider shall take such “action as is reasonably required” and shall as soon thereafter as practical give oral notice to the Director, and thereafter comply with the requirements of this chapter.
(Ord. 3715, 1-19-05. Code 1994 § 38-204)
12.28.050 Boring.
It is the City’s policy to limit cuts, trenches or excavations in the surface of any ROW. Boring is required unless the applicant can reasonably demonstrate to the Public Works Director that it is impracticable to do so because of cost, emergency, unstable soil, existing utilities or other conditions.
(Ord. 3715, 1-19-05. Code 1994 § 38-205)
12.28.060 Performance/warranty guarantee for permits and insurance.
A performance/warranty guarantee and insurance shall be required for work within the ROW under the same terms and conditions as set forth in GJMC 13.12.070 and 13.12.100 as amended herein.
(Ord. 3715, 1-19-05. Code 1994 § 38-206)
12.28.070 Provider’s proposed plans – Director’s review.
(a) No provider shall begin any work, nor dig within any ROW, nor make any cuts, nor occupy any City ROW unless the Director has accepted in writing the provider’s construction plans which shall comply with adopted City specifications and standards or standards that are mutually agreed upon by both the provider and City. The specifications and standards of the providers may be found to comply with “adopted City specifications and standards” if substantially equivalent to City standards and if use of the provider’s standards are approved in writing by the Director or pursuant to written agreements between such other provider and the Director.
(b) At the time of application for a construction permit, a provider shall deliver three sets of its proposed construction plans for use or digging in any ROW to the Director for the use of the City. Among other benefits such overall plans allow the City to coordinate its work with that of the provider and other providers. If the City’s workload demands, or if the plans are complex, and if the provider has not attended and provided the necessary notice and information at the most recent City planning meeting, then the Director may extend the review by giving notice to the provider of an extended review period not to exceed a total of 60 business days. The scale of such plans shall be not less than one inch equal to 40 feet.
(c) If the plans are complete and adequate, the Director will be deemed to have accepted the plans unless the Director rejects or requests amendments to the plans within 10 City business days by giving notice thereof to the provider.
(d) If the plans are incomplete and/or inadequate, then the provider shall make such changes as the Director requires, consistent with this chapter and the City’s other standards and requirements.
(e) To reject or amend the provider’s plans, the Director shall give notice thereof by sending an e-mail, or facsimile, or by mailing a notice to the provider. Such notice by the Director is effective upon the earlier of sending the e-mail, facsimile or mailing the notice first class via the U.S. Postal Service, postage prepaid.
(f) If the Director rejects or amends the proposed plans, in whole or in part, the provider shall not thereafter do any work in the ROW until the provider submits plans that the Director does not reject or amend; however, the Director may approve a portion of the plans, and thereafter the provider may perform a portion of the proposed work in the locations or at such times as the Director directs.
(Ord. 3715, 1-19-05. Code 1994 § 38-207)
12.28.080 City planning meetings.
At least once per calendar year and up to four times per calendar year, the City shall give notice to each provider, who so requests, of a City sponsored and coordinated meeting among the City and providers (“City planning meeting(s)”). At the City planning meeting, each provider that provides the City with copies of proposed projects, scope of work and estimated schedules for the subsequent 12 months, and for future years as available, shall not be required to provide the information, and at the times, required by GJMC 12.28.070(b) and (c).
(Ord. 3715, 1-19-05. Code 1994 § 38-208)
12.28.090 Infrastructure standards and “as-built” information.
(a) From time to time, the Director may adopt additional or supplemental standards as administrative regulations to which each provider shall thereafter conform its infrastructure in the City ROW whenever the infrastructure is repaired or replaced.
(b) The Director shall adopt standards regulating the vertical and horizontal placement of provider infrastructure relative to the City’s infrastructure, the facilities of other providers and other facilities in the ROW. The Director may solicit the public input of providers and other affected interests when considering such standards.
(c) The City’s standard cross section for “wet” and “dry” infrastructure is incorporated by this reference as if fully set forth on the attached detail. All work shall conform with City standard cross section, unless the Director has approved a variation proposed by a provider in accordance with subsection (a) of this section.
(d) For all replacements and new infrastructure installed, the provider shall deliver “as-built” information as required herein to the Director within 60 days of completion of the replacement or infrastructure work.
(e) The provider shall deliver the as-built information in a format and medium specified by the Director so that the City may incorporate the information into its existing software, programs and GIS. The Director will work with the entities subject to this chapter in order to agree upon a consistent format(s) that can be accepted by the City’s GIS system.
(Ord. 3715, 1-19-05. Code 1994 § 38-209)
12.28.100 Oversizing.
Whenever a provider’s dry infrastructure in the City ROW is dug up, exposed or repaired, including by boring, if the provider desires to rebury, replace, or install dry infrastructure as the Director determines is reasonable, the provider shall place the additional (City provided) infrastructure and be reimbursed for any additional costs incurred from placing the additional infrastructure.
(Ord. 3715, 1-19-05. Code 1994 § 38-210)
12.28.110 Joint use of provider infrastructure.
The City may require that a provider locate and maintain one or more of its dry facilities in a common trench and/or conduit or similar facility in which the infrastructure of other providers and/or the City is also located. Until the Director adopts different standards regarding the vertical and horizontal separation of facilities, the attached standards, the Standards of the American Waterworks Association and the National Electric Safety Code and Standards shall apply.
(Ord. 3715, 1-19-05. Code 1994 § 38-211)
12.28.120 City costs and expenses – Provider initiated projects.
(a) Each provider shall pay to the City the costs and expenses incurred by the City and its officers, officials, employees and agents regarding oversight, inspection, regulation, permitting and related activities (“City costs”).
(b) City costs include the actual wages, plus benefits, paid by the City for the work of each City employee and/or agent, including clerical, engineering, management, inspection, enforcement, and similar functions.
(c) City costs include the expenses and costs for computer-aided design programs, maps, data manipulation and coordination, scheduling software, surveying expenses, copying costs, computer time, and other supplies, materials or products required to implement this chapter and to regulate providers hereunder.
(d) Unless the Director requires a provider to resurface a part of a unit, portion of a City block or similar segment of ROW disturbed by the provider, City costs include the present value of the cost to replace and resurface the damaged asphalt, concrete or other ROW surface.
(e) The Director shall annually establish an average per unit cost which shall be for the calendar year in question, based on bids the City accepted for City projects in the previous one or two calendar years.
(Ord. 3715, 1-19-05. Code 1994 § 38-212)
12.28.130 Provider payments to the City – Collections.
If a provider fails to pay City costs, or any other money, fee or compensation required by a City law or regulation, in full within 30 days of the City’s mailing a claim therefor, the City is entitled to, in addition to the amount of the claim, interest on all unpaid amounts at the statutory rate, or the City’s return on investment, as reported in the City’s then current annualized investment portfolio.
(Ord. 3715, 1-19-05. Code 1994 § 38-213)
12.28.140 City required utility locates for design.
(a) To increase the accuracy of project design and avoid conflicts encountered after construction begins, providers will locate their utilities as required pursuant to § 9-1.5-101, C.R.S. et seq. (“locate law”). The City will pothole the utilities based upon the painted locates provide by the utility owners. If the utility is not located within 18 inches of the painted locate, the utility owner shall excavate and locate the utility and notice the City who will survey the location. This section does not apply to service lines.
(b) Any provider who fails to comply with the Director’s notice to comply with the locate law is responsible and liable for all consequential damages that result from either the failure to comply with the locate law or from inaccurate information regarding the vertical and/or horizontal location of such provider’s infrastructure.
(c) Any provider may avoid claims for such consequential damages pursuant to this chapter if such provider “pot holes” in such locations and to such depths as such provider determines is needed to provide accurate information to the City regarding the horizontal and vertical location of such provider’s infrastructure in the specified unit(s).
(d) Each provider that does not accurately locate its infrastructure shall pay the City the costs incurred by the City in changing any design, relocating City infrastructure, and delay and similar costs incurred as a result of inaccurate locates.
(e) A provider may avoid having to perform locates if it delivers to the City accurate vertical and horizontal information (pot hole data) that is compatible with the City’s GIS that establishes the location of such provider’s infrastructure in the unit(s) in question.
(Ord. 3715, 1-19-05. Code 1994 § 38-214)
12.28.150 Suspension and/or revocation of a permit.
A construction or revocable permit authorized under this chapter may be void if/when the permittee is not in full compliance with any provision of this chapter or other City law.
(a) A permit to dig or excavate under this chapter is void if the provider supplies materially false or deceptive information to the City at any time.
(b) If/when the permittee is in full compliance, the provider shall give the notice required by GJMC 12.28.040 and shall apply for a permit as a new provider.
(c) The City Manager may order that a provider immediately cease and desist any further use or work within the City’s ROW and suspend any or all permits and previously granted City approvals, at any time based on reasonable grounds to believe that a violation of this chapter, or other City rules or specifications has occurred, and the public health, safety or welfare, or the property or rights of another provider are at substantial risk of irreparable harm.
(Ord. 3715, 1-19-05. Code 1994 § 38-215)
12.28.160 Security.
(a) If the provider has violated any provision of this chapter within the previous five years, before the provider is authorized to perform work in the ROW, the City Manager may require that a provider post a letter of credit or equivalent security in the greater of:
(1) The dollar value of any damage to the City or other provider’s infrastructure that has occurred in said five-year period;
(2) The amount of increased costs or price payable to a contractor or similar entity due to the provider’s violation; or
(3) The amount of gross profit the provider realized due to the violation.
(b) The City may convert such security to cash and use such cash to pay for any warranty work or to correct any injury or damage caused to the City’s infrastructure or property, or other damages, by the provider’s actions or failure to act or to improve the City’s infrastructure.
(Ord. 3715, 1-19-05. Code 1994 § 38-216)
12.28.170 Construction standards/City laws.
(a) Each provider has the duty to see that its work, and that of its contractors, complies with this chapter, other adopted City standards and specifications, and other applicable law. Other City adopted standards and requirements include: the transportation, engineering and design standards; the City’s standard contract documents as applicable; the City’s ordinances, including the zoning and development code; and the City’s administrative regulations.
(b) Each provider has the affirmative duty to comply with the City’s construction standards, such as soil density testing of repaired ROW.
(Ord. 3715, 1-19-05. Code 1994 § 38-217)
12.28.180 Appeal.
During such appeal process, the City Manager has the discretion to allow the provider to use and/or operate within one or more units, as determined by the City Manager, with conditions as the City Manager deems reasonable, including the posting of reasonable cash or other security, such as a letter of credit.
A provider may appeal any City or City Manager decision pursuant to this chapter to the City Council, as provided below:
Any person, including any officer or agent of the City, aggrieved or claimed to be aggrieved by a final action of the Director on an administrative development permit, may request an appeal of the action in accordance with the following:
(a) Application and Review Procedures. Requests for an appeal shall be submitted to the Director in accordance with the following:
(1) Application Materials. The appellant shall provide a written request that explains the rationale of the appeal based on the criteria provided herein.
(2) Notice to Applicant. If the appellant is not the applicant, the Director, within five working days of receipt of the request for appeal, shall notify the applicant of the request and the applicant shall have 10 working days to provide a written response.
(3) Preparation of the Record. The Director shall compile all material made a part of the record of the Director’s action. As may be requested by the City Council, the Director also may provide a written report.
(4) Notice. No notice of the appeal is required.
(5) Conduct of Hearing. The City Council shall hold an evidentiary hearing to determine whether the Director’s action is in accordance with the criteria provided stated in subsection (b) of this section, Approval Criteria. The City Council may limit testimony and other evidence to that contained in the record at the time the Director took final action or place other limits on testimony and evidence as it deems appropriate.
(b) Approval Criteria. In granting an appeal of an administrative development permit, the City Council shall find that the Director:
(1) Acted in a manner inconsistent with the provisions of this code or other applicable local, State of federal law; or
(2) Made erroneous findings of fact based on the evidence in the record; or
(3) Failed to fully consider mitigating measures or revisions offered by the applicant; or
(4) Acted arbitrarily, acted capriciously and/or abused his discretion.
(Ord. 3715, 1-19-05. Code 1994 § 38-218)
12.28.190 Administrative regulations.
The City Manager may implement this chapter by adopting administrative regulations. An implementing administrative regulation may be appealed to the City Council, as provided in GJMC 21.08.260(c)(3).
(Ord. 3715, 1-19-05. Code 1994 § 38-219)
12.28.200 Severability.
If a court of competent jurisdiction declares one or more provision(s) or terms of this chapter to be unenforceable or unconstitutional, the rest of the provisions and terms shall be severed therefor and shall remain enforceable.
(Ord. 3715, 1-19-05. Code 1994 § 38-220)
12.28.210 Civil remedies.
If any person or provider violates any order of the Director, a hearing board or the Council, or otherwise fails to comply with the provisions of this chapter, the provisions and remedies provided for in GJMC 13.04.440(b) shall apply and shall be available to the City.
(Ord. 3715, 1-19-05. Code 1994 § 38-221)
12.28.220 Violations.
(a) The provisions of Chapter 1.04 GJMC apply to any violation hereof.
(b) It is a violation of this chapter if a provider misrepresents any fact in any information provided to the City, to the City Manager, or the Director’s employees or agents.
(c) A provider violates this chapter if the contact person of such provider, or the provider, fails to amend or update the information and documentation supplied to the City pursuant to this chapter within 60 days of any change, error, mistake or misstatement.
(Ord. 3715, 1-19-05. Code 1994 § 38-222)