Chapter 12.30
RIGHTS-OF-WAY AND EASEMENTS
Sections:
12.30.010 Purpose – Policy – Application.
12.30.040 Application requirements.
12.30.050 Determination by city.
12.30.080 Coordination of construction.
12.30.120 Grounds for suspension – Revocation.
12.30.140 Enforcement – Remedies.
Prior legislation: Ord. 276 and Code 2002 §§ 12.24.010 – 12.24.050.
12.30.010 Purpose – Policy – Application.
The purpose of this chapter is to adopt policies, procedures, and regulations governing construction work performed in, over, under, and above right-of-way and the temporary use, occupancy, and/or closure of city right-of-way. City’s policy is to preserve and protect the rights-of-way within city’s jurisdiction. The provisions of this chapter are intended to protect public health and safety and to ensure the integrity and efficient use of existing streets and other rights-of-way. Except as expressly provided herein, the procedures contained in this chapter apply to all requests to temporarily use and/or obstruct rights-of-way in city. [Ord. 518 § 2, 2021].
12.30.020 Definitions.
Unless the context requires otherwise, when used in this chapter the following terms and phrases have the meanings assigned to them below, whether or not such terms are capitalized:
“ADA” means the Americans with Disabilities Act of 1990 (and the rules and regulations promulgated thereunder).
“Applicant(s)” means the person applying for a permit to use any right-of-way pursuant to this chapter.
“City” means the city of Sisters, Oregon.
“Code” means the Sisters Municipal Code.
“Construction work” means any construction activity in, on, over, and/or under any right-of-way, including, without limitation, any digging, cutting, drilling (vertical, horizontal, directional, or other), excavation, installation, and/or improvement work.
“Council” means the Sisters city council.
“Law(s)” means all applicable federal, state, county, and/or local laws, rules, regulations, codes, and ordinances, including, without limitation, the ADA, and all regulations of any administrative agency thereof, all as heretofore or hereafter adopted, promulgated, and/or established from time to time.
“Manager” means city’s city manager (or his or her designee).
“Parklet(s)” means two to four on-street parking spaces, designated by city, adjacent to a business, which business may, subject to and in accordance with this chapter and all applicable laws, temporarily use and occupy such on-street parking spaces for business operations and related purposes.
“Permit(s)” means the temporary permission granted by city under this chapter to perform construction work and/or use, obstruct, and/or close right-of-way within city for a specified duration and dedicated purpose.
“Person” means any natural person, corporation, limited liability company, partnership, joint venture, firm, association, trust, unincorporated organization, government or governmental agency or political subdivision, or any other entity.
“Public utilities” means any utility operated by city, another public entity, or any private entity operating a utility subject to a franchise agreement with city.
“Right-of-way” means the public streets, alleys, avenues, thoroughfares, highways, places, sidewalks, bike lanes, paths, park strips, trails, public easements, and/or grounds located within city which are owned and/or controlled by city.
“Standards and specifications” means city’s 2020 Public Works Standards and Specifications, as amended from time to time.
“Temporary use” or “temporarily use” includes, without limitation, any whole or partial reservation, occupancy, and/or closure of any right-of-way. [Ord. 518 § 3, 2021].
12.30.030 Permit required.
No person other than city may perform any construction work in, on, over, and/or under any right-of-way without first applying for and obtaining a permit and paying the prescribed fee in accordance with this chapter. Without otherwise limiting the generality of the immediately preceding sentence, no person other than city may remove, alter, and/or construct any curb, sidewalk, driveway, approach, gutter, pavement, and/or other improvement in any right-of-way or property owned or controlled by city without a city right-of-way permit. No person other than city may wholly or partially reserve, occupy, and/or close any right-of-way without first applying for and obtaining a permit and paying the prescribed fee in accordance with this chapter. [Ord. 518 § 5, 2021].
12.30.040 Application requirements.
(1) Application. Any person desiring to perform any construction work and/or temporarily use any right-of-way in city must first apply for a permit on such forms and in such manner as the manager may then prescribe. Applications will be available at the Sisters City Hall. The application must be accompanied by the applicable application fee prescribed by council resolution from time to time. An application for a permit must be submitted to city not less than 14 days prior to the proposed construction work and/or temporary use. The application must be filed with the manager and, in addition to any other information reasonably requested by the manager, must include, without limitation, the following:
(a) The date of the application and the applicant’s name, address, contact information, and signature.
(b) The location and identification of the right-of-way proposed for the construction work and/or temporary use.
(c) The purposes and nature for which the right-of-way will be used, including, without limitation, any construction plans.
(d) The applicable dates and hours for which the permit is requested.
(e) Certification that all applicable local, city, county, state, and/or federal licenses, certificates, registrations, approvals, and/or permits required for the use (and the identification of such licenses, certificates, registrations, and/or permits), including, without limitation, a public event permit, have been or will be obtained prior to the construction work and/or temporary use.
(f) A traffic control plan consistent with all applicable standards and specifications must be submitted with any application that includes a lane closure.
(g) City may require an applicant to submit plans prepared by a licensed professional engineer for large or complex projects or those that may impact other work, utilities, and/or city’s infrastructure and transportation system.
(h) In accordance with SMC 12.30.130, the applicant must agree to indemnify city as to liability of any kind resulting from and/or arising out of any permitted activities. The applicant will be responsible for injury to any person or property resulting from the permitted excavation, construction, or related work.
(i) For any application that includes construction work, the applicant must submit all applicable documentation required under SMC 12.30.060.
(j) Any other information that the manager deems necessary or appropriate to enable city to review the application and determine whether the applicant qualifies for the issuance of a permit.
(2) Review. Each application will be evaluated by the manager to determine whether to approve the application subject to and in accordance with this chapter. The manager is authorized to make an investigation into the applicant, review the application, and conduct whatever investigation the manager deems necessary or appropriate to determine whether the application is complete, the statements made therein are true and accurate, and whether the proposed use complies with this chapter. City reserves the right to request additional documentation and/or information as city determines necessary or appropriate to determine whether the application is complete and/or complies with this chapter. The manager may, in the manager’s sole discretion, approve (in whole or in part), approve with limitations, conditions, and/or reservations, or deny an application.
(3) Standards. In evaluating whether to approve an application, the manager will consider the following:
(a) No permit will be issued to any person concerning any activity that is prohibited by applicable law, including, without limitation, Chapter 5.10 SMC concerning public events. Without otherwise limiting the generality of the immediately preceding sentence, city may deny an application for a permit and/or impose conditions of approval to ensure compliance with applicable laws, including, without limitation, the ADA, and/or to preserve infrastructure, the right-of-way, and/or the public interest.
(b) Subject to the provisions of this chapter, a permit will be valid and effective for a period not to exceed 14 consecutive days, except as expressly provided otherwise by city. City may provide deadlines for conducting construction work. City may require that the actual construction work be limited to specific hours (e.g., 7:00 a.m. to 7:00 p.m.) and/or to certain days.
(c) If existing on-street parking will be unavailable as a result of the use of the right-of-way, adjacent property owners must be provided written notice not less than seven days prior to the proposed use. City may require that access to driveways be maintained. City may require that provision be made for traffic operations and safety, including, without limitation, an engineered traffic control plan that includes specific detour routes, work zone limits, coordination with other right-of-way work or public events in the area of the work, and requiring the use of traffic control barricades.
(d) City may require erosion control and/or impose additional requirements to ensure best management practices are used on all sites concerning erosion control and stormwater management. City may require an applicant to make provision for watercourses during excavation.
(e) Subject to applicable law, including, without limitation, the standards and specifications, city may establish minimum and/or maximum depth of excavation. City may impose additional requirements in a permit to provide for (i) control of noise, dust, and debris during excavation, (ii) requiring proper backfill and pavement resurfacing, including temporary surfacing if necessary, consistent with the standards and specifications, and (iii) imposing timelines for replacing temporary surfacing with permanent surfacing.
(f) A minimum of five feet of clearance must be maintained on all sides of fire hydrants. Clearances to water meters must be not less than three feet behind and three feet from the sides measured from the outside edges of the box. The applicant will pay for meter relocation if this standard cannot be met. Clearance to manholes and underground pipelines, including, without limitation, city sewers, water mains, and storm drains, must be not less than seven and one-half feet, as measured from the center of the pipeline or manhole.
(g) Proposed closures will not prevent access to, cover, and/or block the flow of water to and/or into catch basins, ditches, and/or swales, and must not otherwise alter the natural drainage pattern or adversely affect adjacent property. Where drainage is involved, the manager may set specific requirements.
(h) Where the adjacent street has been fully improved to its planned dimension with associated curbs, sidewalks, utilities and street trees, an encroachment may be permitted between the property line and the back edge of sidewalk provided there is a one-foot minimum clearance between the proposed encroachment and the back edge of the sidewalk and all other clearance standards have been met.
(i) Sufficient room for off-street parking and pedestrian travel (five feet of unobstructed sidewalk width) must be maintained and the encroachment may not result in a loss of area needed for parking, vehicular maneuvering, and/or pedestrian travel.
(j) To ensure that any temporary use does not contribute to visual blight or create a safety hazard, conditions of permit approval may include, without limitation, a requirement that the encroachment and/or right-of-way be appropriately maintained daily.
(k) Proposed closures will not impact travel lanes unless a trench crossing is necessary and the required permits are obtained. [Ord. 518 § 6, 2021].
12.30.050 Determination by city.
(1) Approval. After completion of the manager’s review of the application (and the manager’s receipt of reports from all persons and departments designated by the manager to review the application), the manager will determine whether the applicant qualifies for the issuance of a permit. If the applicant qualifies for a permit, the manager will issue the permit to the applicant upon the applicant’s payment of a right-of-way permit fee, which permit fee will be prescribed by resolution of the council from time to time. Notwithstanding anything contained in this chapter to the contrary, the manager may impose such conditions as necessary and/or appropriate to ensure.
(2) Denial. If, on the basis of the review of the application, the manager determines that the applicant does not qualify for a permit, the manager will notify the applicant in writing that the application has been denied. The manager may deny the issuance of a permit for any of the following nonexclusive reasons: (a) the applicant does not or will not comply with applicable federal, state, and/or local law, rules, and/or regulations, including without limitation the ADA; (b) the proposed right-of-way use, closure, and/or occupancy does or will (i) endanger or damage the health, safety, and/or general welfare of persons or property, (ii) unreasonably inconvenience the public, and/or (iii) create unusual traffic and/or policing problems; and/or (c) the applicant fails to supply the information required, or submits misleading or false information, in connection with the application for the permit. The manager’s decision on any given matter will not set any precedent nor bind future decisions of the manager. [Ord. 518 § 7, 2021].
12.30.060 Insurance – Bonds.
(1) General. Unless exempt under subsection (4) of this section, an application for a right-of-way permit will be accompanied by the required performance and maintenance bond and proof of insurance.
(2) Insurance. Unless exempt under subsection (4) of this section, an applicant must provide proof of general liability insurance, including, without limitation, personal injury, bodily injury, including death, and broad form property damage, including loss of use of property, in an amount not less than $2,000,000 combined single limit per occurrence and $2,000,000 aggregate, or the then-current limits of the Oregon Tort Claims Act, whichever is greater. The certificate of insurance must list city and city’s officers, agents, and representatives as an additional insured.
(3) Bonds. Unless exempt under subsection (4) of this section, the applicant must provide a performance and maintenance bond in the following amounts: (a) the performance bond must cover 120 percent of the estimated project cost; and (b) the maintenance bond must be the greater of $1,000 or 10 percent of the project estimate.
(4) Exemptions.
(a) The following types of work require a permit but are exempt from insurance and bond requirements:
(i) Development work permitted under a valid land use approval from city unless insurance and/or bonds are required as part of the applicable land use approval;
(ii) Sidewalk or driveway repair (less than 30 lineal feet);
(iii) Relocation, installation, or replacement of mailbox;
(iv) Ditch cleaning that does not involve regrading;
(v) Weep-hole repair;
(vi) Curb repair or replacement (less than 30 lineal feet);
(vii) Lawn sprinkler system installation or repair;
(viii) Street tree pruning or planting;
(ix) Planter strip landscape maintenance;
(x) Minor improvements valued less than $1,000 or as approved by the city engineer.
(b) In addition to exemptions described in subsection (4)(a) of this section, projects valued at less than $10,000 are exempt from bond requirements if the applicant carries the required insurance; and provided, however, that this exemption does not apply to a specific project that is valued at less than $10,000 if part of a larger project that is greater than this value.
(c) Public utilities are exempt from posting performance and maintenance bonds if the project estimate is less than $100,000 and if the utility has provided a letter to city demonstrating that it is both self-insured and bonded. The public utility is still required to pay all applicable fees.
(d) An application that does not include construction work is exempt from the bond requirements. [Ord. 518 § 8, 2021].
12.30.070 Conduct of work.
Subject to the provisions of this chapter, any construction work performed under a permit issued under this chapter will be performed subject to and in compliance with the provisions of this section.
(1) General. Any construction work performed under a permit issued under this chapter will be performed subject to and in compliance with all applicable laws, including, without limitation, the standards and specifications. Each permittee will give city a minimum of 48 hours’ notice prior to starting any work and requesting any required inspections. No excavation may be done under any permit unless the permittee has complied with all requirements for locating existing underground facilities in the area to be excavated. For purposes of this section, excavation includes drilling and directional drilling. Work will not interfere with access to fire hydrants and/or with city or public utilities.
(2) Patching – Paving. An immediate cold-mix patch must be placed within 24 hours of completion of the work, and any excavation must be filled, compacted, and the street surface restored to as good or better condition than before the work and in conformity with the standards and specifications. Final pavement restoration will be completed within seven days. For work on arterial and collector roadways, additional conditions may be placed on the permit requiring interim paving restoration prior to the entire scope of work being completed.
(3) Contractors. All construction work will be performed in a safe, thorough, and reliable manner using materials of good and durable quality. A permittee will use only licensed and bonded contractors familiar with all applicable laws and of good reputation to perform all construction work and will diligently prosecute completion of all construction work without delay. The permittee will, at its cost and expense, undertake all necessary and appropriate actions and efforts to maintain its work sites in a safe manner to prevent failures and accidents that may cause damage, injuries, and/or nuisances.
(4) Inspection – Maintenance – Warranty. The permittee will notify city within 48 hours after completion of construction work. Additional reporting and/or inspections may be required, as determined by city. City will identify the required reporting and inspections at the time of permit issuance. City, in city’s sole discretion, will inspect any work and require correction of any deficiencies. If no deficiencies are detected city will accept the work. The permittee will be required to maintain the area in good condition for a period of one year from acceptance. Upon request by city, the permittee will provide security in a form acceptable to the city to cover any defects discovered in that one-year period.
(5) Traffic Control. The permittee will provide temporary traffic control barricades in compliance with all applicable standards and specifications and the Manual on Uniform Traffic Control Devices, as required to protect against risks associated with obstructions and/or excavations.
(6) Utilities. Prior to commencing any construction work, the permittee will provide written notice to all public utilities that have or may have facilities in the affected area. If the work includes the placement of utility lines and facilities, the permittee will provide “as-built” drawings to city. The permittee is responsible for coordinating and paying for all utility relocations affected by the permit.
(7) Emergencies. Excavations in the right-of-way may proceed in case of an emergency; provided, however, the permit must be applied no later than the close of the next business day. Depending on the severity of the emergency city may extend this timeline on a case-by-case basis.
(8) Restoration. Each permittee that performs construction work in the right-of-way will, at its sole cost and expense, promptly remove any obstructions and restore the right-of-way or property subject to and in accordance with the standards and specifications. If weather or other conditions do not permit the complete restoration required by this section, the permittee may temporarily restore the affected right-of-way or property; provided, however, temporary restoration will be at the permittee’s expense and the permittee will promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. Notwithstanding anything contained in this chapter to the contrary, if the permittee fails to restore right-of-way or property to good order and condition and in accordance with the standards and specifications, city will provide the permittee written notice and provide the permittee a reasonable period of time, not exceeding 14 days, to restore the right-of-way or property. If the permittee fails to restore the right-of-way or property to as good a condition as existed before the work was undertaken within the notice period, city may restore the right-of-way or property at the permittee’s cost and expense.
(9) As-Builts. Upon request by city, a permittee will provide city with an electronic set of engineered plans in a form acceptable to city showing the location of the facilities the permittee installed or constructed within the rights-of-way pursuant to the permit. [Ord. 518 § 9, 2021].
12.30.080 Coordination of construction.
Each permittee will make every effort to coordinate their construction schedules with city and other users of the right-of-way; provided, however, city projects will take precedence to the extent a conflict arises between schedules. City’s public works director (or his or her designee) will resolve conflicts and determine priorities for any permitted work in the right-of-way. All utilities performing work in the right-of-way will make every effort to cooperate with other utilities with permits to do work in the same location at or near the same time to coordinate construction and co-locate facilities. Nothing in this section shall be construed to require a utility to reveal proprietary information. A utility must designate any proprietary information as such and city will protect such information from disclosure to the extent allowed by law. [Ord. 518 § 10, 2021].
12.30.090 Permit fee.
The fee(s) for a permit issued under this chapter will be determined by council resolution. The permit fee(s) may be increased or decreased at any time and from time to time by council resolution. The permit fee(s) imposed under this chapter will be in addition to, and not in lieu of, any other city license and/or permit fees, charges, and/or taxes. [Ord. 518 § 11, 2021].
12.30.100 Parklet program.
(1) Parklets Authorized. Notwithstanding anything contained in this chapter to the contrary, city may approve permits for the temporary use of parklets during the period between April 1st and October 31st of each year (unless extended by the manager). The application for and use of a parklet is not subject to the application procedures and standards contained in SMC 12.30.030 through 12.30.080. The manager will promulgate rules, regulations, requirements, standards, and guidelines necessary or appropriate to (a) implement and administer a parklet program in city, and (b) protect public health, safety, and welfare while ensuring the efficient and safe use of existing right-of-way. Notwithstanding anything contained in this chapter to the contrary, use of a parklet in city will be subject to and in accordance with all applicable laws and such standards, guidelines, and requirements as promulgated by the manager from time to time.
(2) Parklet Applications. Any person desiring to use a parklet in city must first apply for a permit on such forms and in such manner as the manager may then prescribe. Applications will be available at the Sisters City Hall. Any request will contain all information and documentation required and/or requested by the manager, including, without limitation, the following: (a) the business name, location, address, and owner’s name; (b) contact information for the owner and/or authorized representative of the business; (c) a depiction of the proposed parklet; and (d) the business’s operating hours. The application must be accompanied by the applicable application fee prescribed by council resolution from time to time. The manager may approve, approve with conditions, or deny a request. City reserves the right to request additional documentation and information as needed. The manager will review and process each request in order of receipt. [Ord. 518 § 12, 2021].
12.30.110 Rights granted.
A permit granted pursuant to this chapter (1) is revocable and not transferable and not assignable, and (2) will not convey any right, title, and/or interest in the right-of-way, but will be deemed permission to use the right-of-way for the limited purposes and term, and upon the conditions stated in the permit. The person granted the permit will have no property interest or other right in the permit except as provided by this chapter. A permit granted pursuant to this chapter is not (and will not be construed as) a contract. City expressly reserves the right to grant licenses, franchises, permits, and/or other rights to other persons, as well as city’s right to use the right-of-way, for similar or different purposes. [Ord. 518 § 13, 2021].
12.30.120 Grounds for suspension – Revocation.
The manager may suspend and/or revoke a permit for any of the following reasons: (1) construction in the right-of-way without all applicable approvals; (2) fraud, misrepresentation, and/or false statement(s) contained in the application for a permit and/or willful withholding of information or incomplete disclosure concerning any matter required to be furnished in connection with any such application; (3) a violation of this chapter and/or the terms and conditions imposed under a permit; and/or (4) noncompliance with any other city ordinances and/or regulations or violations of applicable law, including, without limitation, Chapter 5.10 SMC. [Ord. 518 § 14, 2021].
12.30.130 Indemnification.
As a condition of a permit, the permittee will defend, indemnify, and hold city, and each employee, officer, agent, and representative of city, harmless for, from, and against any and all claims, actions, proceedings, damages, liabilities, losses, and expenses, including, without limitation, reasonable attorney fees, resulting from or arising out of the following: (1) the acts or omissions of the permittee and/or its affiliates, officers, directors, shareholders, members, managers, employees, agents, contractors, and/or subcontractors in the occupancy and/or use of the right-of-way, whether such acts or omissions are authorized, allowed, or prohibited by this chapter; and/or (2) a permittee’s breach and/or failure to perform any permittee representation, warranty, covenant, and/or obligation under this chapter. [Ord. 518 § 15, 2021].
12.30.140 Enforcement – Remedies.
Any person violating any provision of this chapter will be subject to a civil penalty not to exceed the sum of $1,000 for each violation. Each violation of a provision of this chapter, and every day that such chapter violation exists, will be considered a separate violation. In addition to the foregoing civil penalties, city may seek, in a court of competent jurisdiction, such other and additional relief (including all legal and equitable relief and remedies) available under applicable law as well as recovery of its costs and attorney fees. City will be entitled to collect from any person violating or otherwise failing to comply with this chapter city’s reasonable attorney fees and other fees, costs, and expenses incurred by city to enforce this chapter. The remedies provided in this section are not exclusive and will not prevent city from exercising any other rights and/or remedies available under law. [Ord. 518 § 16, 2021].
12.30.150 Administration.
The manager is responsible for the administration of this chapter. The manager may develop and/or revise right-of-way permits, standard permit conditions, and/or additional standards necessary to ensure that all work performed in, and use of, the right-of-way is conducted in a manner that minimizes disturbance to the public, controls quality of the construction and repairs, and otherwise protects the public interest. The manager may establish reasonable rules and regulations necessary or appropriate to carry out the purpose and intent of this chapter. Violations of any rules and/or regulations established by the manager pursuant to this chapter will be subject to the penalties described in this chapter. No person may violate or fail to comply with any rule or regulation established by the manager or willfully make any false or misleading statement to the manager regarding information relevant to the issuance of a permit. [Ord. 518 § 17, 2021].