Chapter 12.24 WORK IN PUBLIC WAYS

B. "Emergency" means any unforeseen circumstances or occurrence, the existence of which constitutes a clear and immediate danger to persons of property, or which causes interruption of utility services.

C. "Engineer" means the engineer designated by the town, or his authorized representative.

D. "Engineering regulations," "construction specifications," and "design standards," mean the engineering regulations, construction specifications and design standards of the town.

E. "Obstruction" means any rubbish, glass, material, wood, ashes, tacks, metal, earth, stone, structure, or other object, thing or substance of which may interfere with or obstruct the free use or view of the public way by travelers, or injure or tend to injure or destroy or render unsightly the surface of a public way, or which may cause or tend to cause such public way to become restricted in its traffic uses or unsafe or dangerous for travelers thereon.

F. "Permittee" means any person who has been issued a permit and has agreed to fulfill the requirements of this chapter.

G. "Person" means and includes any natural person, partnership, firm, association, public utility company, corporation, company, organization, or entity of any kind.

H. "Public utility company" means, for the purposes of this chapter only, any company subject to the jurisdiction of the Montana State Public Service Commission, or any "person" providing gas, electricity, water, telephone, television, or other utility product or services for use by the general public.

I. "Public way" means and includes all public rights-of-way and easements, public footpaths, walkways and sidewalks, public streets, public roads, public highways, public alleys, and public drainageways. It does not, however, include utility easements not within public ways of the town as otherwise defined in this chapter.

J. "Town" means West Yellowstone, a municipal corporation of the state of Montana.

K. "Work site restoration" means and includes the restoring of the original ground or paved surface of the same (or better) condition than the condition which existed be fore construction commenced, and includes but is not limited to repair, cleanup, backfilling, compaction, and stabilization, paving and other work necessary to place the site in acceptable condition following the conclusion of the work. The engineer may require persons working in public ways constructed or resurfaced within two years of the work, to employ extraordinary measure in restoring the public way such as applying seal coat or other surface treatment to maintain the overall integrity of the surface. (Ord. 140 §8(part), 1990; Ord. 126 §1, 1988)

12.24.020 Excavations--Permit required.

It is unlawful for any person to make, construct, reconstruct, or alter any opening, excavation, tunnel, sidewalk, curb, gutter, driveway, street, or to perform any other work of any kind within the public way which will result in physical alteration thereof, unless such person shall first have obtained a permit for the performance of such work, and unless such work shall be performed in conformity with the terms and provisions of this chapter and of the permit or permits issued hereunder, except as hereinafter specifically provided. (Ord. 126 §2(a), 1988)

12.24.030 Excavations within new streets or roads prohibited--Appeal.

It is unlawful for any person, corporation or utility company to perform any excavation with in surfaced or resurfaced roadways, unless the excavation is an emergency as defined in Section 12.24.010(B). The disapproval of an excavation permit by reason of new street construction may be appealed by filing a written request with the town council. The town council shall hear such request within thirty days following notice of such appeal. (Ord. 181, 1995: Ord. 126 §2(b), 1988)

12.24.040 Building materials in streets--Permit required.

It is unlawful for any person to occupy or use any portion of a public way, or any other public property owned by the town, for the erection or repair of any building abutting thereon without first making application for and receiving a permit for the occupation or use for building purposes, upon such limitations and restrictions as may be required by the town or by the public convenience. However, no fence construction pursuant to this chapter and no building material shall remain in place on any public way or other town property after the ending date of the permit, unless the permit is extended by the town. (Ord. 193 §1, 1997: Ord. 126 §2(c), 1988)

12.24.050 Removal of debris required.

No portion of a public way other than that set forth in the permit shall be used for depositing materials for future work or for receiving rubbish arising from such work. All obstructions and other rubbish shall be removed by the permittee at such times as the town may direct and, in case of the neglect or refusal of such permittee to remove such rubbish, the town shall cause it to be removed at the permittee’s expense, shall bill the permittee for collection, and shall have a civil action for collection in town court. (Ord. 126 §2(d), 1988)

12.24.060 Maintenance of drainage channels.

Existing drainage channels such as gutters or ditches shall be kept free of dirt or other debris so that natural flow will not be interrupted. When it is necessary to block or otherwise interrupt flow of the natural drainage channel, a method of maintaining the flow must be submitted for approval by the town prior to blockage of the channel. (Ord. 126 §2(e), 1988)

12.24.070 Maintenance of pedestrial way.

Barricades or covered walkways for the protection of the general public shall be provided at all times that any work or storage of material is being accomplished under this chapter. (Ord. 126 §2(f), 1988)

12.24.080 Permit application--Required.

Each and every person desiring to perform any work of any kind described in Sections 12.24.020 through 12.24.070, subject to regulation by this chapter, in a public way within this town shall make application for a permit. Such application shall be filed with the town clerk on a form or forms to be furnished by the town. When necessary, in the judgment of the town to fully determine the relationship of the work proposed, to existing or proposed facilities within the public ways, or to determine whether the work proposed complies with the engineering regulations, construction specifications and design standards, the town may require the filing of engineering plans, specifications and sketches showing the proposed work in sufficient detail to permit determination of such relationship or compliance, or both, and the application shall be deemed suspended until such plans and sketches are filed and approved. (Ord. 126 §3, 1988)

12.24.090 Permit application--Approval or disapproval.

A. It is unlawful for any person to commence work upon the public way until the town council or the public services superintendent or his/her designee has approved the application and a permit has been issued for such work, except as specifically provided to the contrary in this chapter.

B. A permit shall be issued on approval of an application by the town council or the public services superintendent or his/her designee. Only the town council shall have the authority to approve an application for work in a public way that (1) will impact any paved street or roadway or (2) will impact any existing curb and gutter or (3) has a total project cost in excess of ten thousand dollars. The public services superintendent or his/her designee shall have the authority to approve all other applications for work in a public way. The town council shall be notified of such approvals within twenty-four hours. Duration of the permit shall be set at the time of issuance of the permit. If no time is specified, the duration shall be sixty days.

C. The disapproval of an application by the town may be appealed by the applicant to the town council by the filing of a written notice of appeal within ten days of the action of the town. The town council shall hear such appeal, if written request therefor be timely filed as soon as practicable, and render its written decision, stating its reasons, within two weeks following notice of such appeal.

D. In approving or disapproving work within the public way or permits therefor; in the inspection of such work; in reviewing plans, sketches, or specifications; and generally in the exercise of authority conferred by this chapter, the town shall act in such manner as to preserve and protect the public way and the use thereof, but shall have no authority to govern the actions or inaction of permittees and applicants or other persons which have no relationship to the use, preservation or protection of the public way or the use thereof. (Ord. 247 §1, 2009: Ord. 126 §4, 1988)

12.24.100 Permit application--Eligibility.

No person shall be eligible to apply for or receive permits to do work within the public ways of the town, save and except for the following:

A. Contractors licensed by the state to perform the work;

B. Public utility companies; or

C. Property owners performing less than five hundred square feet or one hundred linear feet of sidewalk, curb and gutter, or driveway approach work upon a portion of the public way adjacent to their residence.

However, it is lawful for a town or state employee to perform routine maintenance work, not involving excavations, without first having obtained a permit therefor. (Ord. 126 §5, 1988)

12.24.110 Review and inspection fees.

Review and inspection fees will be set by resolution of the town council. (Ord. 247 §2, 2009: Ord. 126 §6, 1988)

12.24.120 Restoration of streets.

A. In the event of a cut or excavation, the restoration of the surface shall be accomplished by the permittee.

B. In the event that for any reason the town elects to or is required to accomplish any restoration, then the permittee shall be liable for all the costs incurred by the town including materials, labor and services. Such costs shall be billed to the permittee by the town at the conclusion of the work, or from time to time as the work proceeds, and in the event of nonpayment or of all or part thereof, after thirty days, the balance due may be collected by legal action. In the event of nonpayment, the permittee shall not be entitled to receive further permits from the town, or to perform further work within the town’s public ways. (Ord. 126 §7, 1988)

12.24.130 Additional charges.

Additional charges to cover the reasonable cost and expenses of any required engineering review, inspection, materials testing, and work site restoration associated with each undertaking may be charged by the town to each permittee, in addition to the permit fee. (Ord. 126 §8, 1988)

12.24.140 Permits--Duration and limits.

Each permit application shall state the starting date and estimated completion date. Work shall be completed within sixty days from the starting date unless extended by the town for good cause shown. The town shall be notified by the permittee of commencement within twenty-four hours prior to commencing work. The permit shall be valid for the time period specified. If the work is not completed during such period, the permittee may apply to the town for an additional permit or an extension, which may be granted by the town if the town finds that work under the original permit, or as extended, has not been satisfactorily performed. (Ord. 126 §9, 1988)

12.24.150 Permits--Assignment.

Permits shall not be transferable or assignable, and work shall not be performed under a permit in any place other than that specified in the permit. Nothing contained in this section shall prevent a permittee from subcontracting the work to be performed under a permit; provided, however, that the holder of the permit shall be and remain responsible for the performance of the work under the permit, and for all bonding, insurance and other requirements of this chapter and under the permit. (Ord. 126 §10, 1988)

12.24.160 Compliance with engineering standards.

All work performed in the public way shall, in all respects, conform to the requirements of the engineering regulations, design standards, construction specifications and traffic control regulations of the town, a copy of which shall be kept on file in the office of the town clerk and shall be open to public inspection during office hours. (Ord. 126 §11, 1988)

12.24.170 Maintenance of traffic barricades.

It is unlawful for any person maliciously or wantonly, or without authorization and legal cause to extinguish, remove or diminish any light illuminating any barricade or excavation, or to tear down or remove any rail, fence or barricade protecting any excavation. (Ord. 126 §12, 1988)

12.24.180 Emergency work.

A. Any person maintaining pipes, lines or facilities in the public way may proceed with work upon existing facilities without a permit when emergency circumstances demand the work be done immediately; provided a permit could not reasonably and practicably have been obtained beforehand.

B. In the event that emergency work is commenced on or within any public way of the town during regular business hours, the town shall be notified within one-half hour from the time the work is commenced. The person commencing and conducting such work shall take all necessary safety precautions for the protection of the public and direction and control of traffic.

C. Any person commencing emergency work in the public way during off business hours without a permit shall immediately thereafter apply for a permit or give notice during the first hour of the first regular business day on which town offices are open for business after such work is commenced, and a permit may be issued which shall be retroactive to the date when the work has begun, in the discretion of the town. (Ord. 126 §13, 1988)

12.24.190 Suspension or revocation of permits and stop orders.

A. Any permit may be revoked or suspended by the town after written notice to the permittee for:

1. Violation of any condition of the permit, the bond, or of any provision of this chapter

2. Violation of any provision of any other ordinance of the town or law relating to the work;

3. Existence of any condition of the doing of any act which does constitute, may constitute or cause a condition endangering life or property.

B. A suspension or revocation by the town, and a stop order, shall take effect immediately upon entry thereof by the town and notice to the person performing the work in the public way.

C. A stop order may be issued by the town directed to any person or persons doing or causing any work to be done in the public way without a permit, or in violation of any provision or provisions of this chapter, or whenever the town shall suspend or revoke a permit.

D. Any suspension or revocation or stop order by the town may be appealed by the permittee to the town council by filing a written notice of appeal within ten days of the action of the town. The town council shall hear such appeal, if written request therefor be timely filed, as soon as practicable, and render its written decision within a reasonable time following hearing of the appeal. (Ord. 126 §14, 1988)

12.24.200 State highway permits.

A. Holders of permits for work on state highways within the town limits, issued by the Montana Highway Department, shall not be required to obtain permits from the town under the provisions of this chapter. Any town permit shall not be construed to permit or allow work in a state highway within the town without a state permit.

B. The town shall have the right and authority to regulate work under such permits with respect to hours and days of work, and measures required to betaken by the permittee for the protection of traffic and safety of persons and property. (Ord. 126 §15, 1988)

12.24.210 Bond--Required.

A. Each applicant, before being issued a permit, shall provide the town with an acceptable corporate surety bond of ten thousand dollars to guarantee faithful performance of the work authorized by a permit granted pursuant to this chapter.

B. The amount of the bond required may be increased or decreased in the discretion of the town whenever it appears that the amount and cost of the work to be performed, and not satisfactorily completed, may vary from the amount of bond otherwise required under this chapter.

C. Public utilities franchised by the town and property owners performing work adjacent to their residences, shall not be required to file a corporate surety bond provided the companies or persons agree to be fully bound by the conditions set forth in Section 12.24.260. (Ord. 126 §16, 1988)

12.24.220 Bond--Conditions.

The bond required by the preceding section shall be conditioned such that the person making the excavation shall:

A. Fully comply with the requirements of the town ordinances and the regulations, specifications and standards promulgated by the town relative to work in the public way, and respond to the town in damages for failure to conform therewith.

B. After an excavation is commended, the permittee shall proceed with diligence and expedition to promptly complete such work and restore the public way to its original condition, or as near as may be, so as to not obstruct the public place or travel thereon more than is reasonably necessary.

Unless authorized otherwise by the town on the permit, all paving and replacement of street facilities shall be done in conformance with this chapter within seven calendar days from the time the excavation commences, or within three calendar days on major or collector streets and five calendar days on all other streets from the time excavation is backfilled, whichever is less, except as provided for during excavation in winter. In any case, every effort should be made to resurface utility cuts immediately after backfilling is completed. If work is expected to exceed the above duration, the permittee shall submit a detailed construction schedule for approval. The schedule will address means and methods to minimize traffic disruption and complete the construction as soon as reasonably possible.

C. Guarantee the work site restoration for a period of two years from completion of the restoration, reasonable wear and tear expected. (Ord. 126 §17, 1988)

12.24.230 Bond--Default.

Whenever the town finds that a default has occurred in the performance of any term or condition of the permit, written notice thereof shall be given to the principal and to the surety of the bond, if there is a surety bond. Such notice shall state the work to be done, the estimated cost thereof, and the period of time deemed by the town to be reasonably necessary for the completion of the work. (Ord. 126 §18, 1988)

12.24.240 Completion of work.

In the event that the surety (or principal), within a reasonable time following the giving of such notice (taking into consideration of the exigencies of the situation, the nature of the work, and the requirements of public safety and for the protection of persons and property), fails either to commence and cause the required work to be performed with due diligence, or to indemnify the town for the cost of doing the work, as set forth in the notice, the town forces or contract forces or both, and suit may be commenced by the town attorney against the contractor and bonding company and such other persons as may be liable, to recover the entire amount due to the town on account thereof. In the event that cash has been deposited, the costs of performing the work may be charged against the amount deposited, and suit brought for the balance due, if any. (Ord. 126 §19, 1988)

12.24.250 Obstructions prohibited.

It is unlawful for any person to place, cast, deposit, permit, erect, or suffer to remain in or upon any public way in the town, any obstruction as defined in this chapter, without obtaining from the town, permission to do so, and then only in strict accordance with the terms and conditions of these ordinances and of the express permission granted. (Ord. 126 §20, 1988)

12.24.260 Comprehensive liability insurance required.

A. Before any excavation permit as provided in this chapter is issued, the applicant shall furnish to the town a certificate of insurance in a company authorized to issue insurance by the state, evidencing that such applicant has a comprehensive general liability and damage policy that includes contractual liability coverage with minimum limits of seven hundred fifty thousand dollars per claimant and one million five hundred thousand per occurrence. The insurance policies shall include the following provisions:

1. To indemnify, save harmless and defend the town and its officers and employees against any claim or loss, damage or expense sustained on account of damages to persons or property occurring by reason of an excavation made by the permittee, his subcontractor or agent, whether or not the excavation has been filled or resurfaced and whether or not the surface has been opened to public travel;

2. To indemnify, save harmless and defend the town from any and all liability for the town’s own negligence occurring by reason of the opening or excavation. This indemnification agreement covering the town’s liability for its own negligence shall not apply to injuries or damages sustained while town employees are present at the excavation placing cement or asphalt therein;

3. To indemnify, hold harmless and defend the town and its officers and employees against any claim or loss, damage or expense sustained on account of damages occurring by reason of failure to maintain property barricades and/or lights as required from the time of the opening of the excavation until the excavation is surfaced and opened for travel;

4. Naming the town as an additional insured and providing that thirty days’ notice shall be given to the town prior to termination of the policy for any reason. Prior to cancellation of insurance, the permittee shall forthwith close the excavation and complete all worksite restoration work.

B. A public utility company or property owner performing work adjacent to his/her residence may be relieved of the obligation of submitting certificates of insurance if such person or company shall submit satisfactory evidence in advance that it is insured, or has adequate assets and provisions for self-insurance. Public utilities may submit annually evidence of insurance coverage in lieu of individual submission for each permit. (Ord. 247 §3, 2009: Ord. 126 §21, 1988)

12.24.270 Hold harmless.

The permittee agrees to save the town, its officers, employees and agents harmless from any and all costs, damages and liabilities which may accrue or be claimed to accrue by reason of any work performed under the permit. The acceptance of any permit under this chapter shall constitute such an agreement by the permittee whether the same is expressed or not. (Ord. 126 §22, 1988)

12.24.280 Liability of town.

This chapter shall not be construed as imposing upon the town or any official or employee any liability or responsibility for damages to any person injured by, or by reason of the performance of any work within the public way, or under a permit issued pursuant to this chapter; nor shall the town or any official or employee thereof be deemed to have assumed any such liability or responsibility by reason of inspections authorized hereunder the issuance of any permit or the approval of any work. (Ord. 126 §23, 1988)

12.24.290 Structures and facilities in the public way.

A. The town may direct any person owning or maintaining facilities or structures in a public way to alter, modify or relocate such facilities or structures as the town may require. Sewers, pipes, drains, tunnels, conduits, vaults, trash receptacles, and overhead and underground gas, electric, telephone and communication facilities shall specifically be subject to such directives. Any directive by the town shall be based upon one of the following grounds:

1. The facility or structure was installed, erected or is being maintained contrary to law;

2. The facility or structure constitute a nuisance as defined under state statute or town ordinance;

3. The authority under which the facility or structure was installed has expired or has been revoked;

4. The facility or structure is not in conformity with public improvements proposed for the area; or

5. The public way is about to be repaired or improved and such facilities or structures may pose a hindrance to construction.

B. Any person owning or maintaining facilities or structures in the public way who fails to alter, modify or relocate such facilities or structures upon notice to do so by the town shall be guilty of a municipal infraction. All costs of alteration, modification or relocation shall be borne by the person owning or maintaining the facilities or structures involved. (Ord. 207 §31, 2000; Ord. 126 §24, 1988)

12.24.300 Penalty for work without permit.

Any person found to be doing work in the public way without having obtained a permit, as provided by this chapter, shall be required to pay a permit fee equal to two times the normal permit fee as a civil penalty. The civil penalty may be enforced in town court, or any other court of competent jurisdiction. (Ord. 126 §26, 1988)

12.24.310 Violation--Penalty.

Violation of this chapter is a municipal infraction subject to the provisions of Sections 7-1-4150 through 7-1-4152, MCA. (Ord. 207 §32, 2000: Ord. 126 §25, 1988)