Chapter 26.44
ENFORCEMENT
Sections:
26.44.010 Enforcement procedures and remedies.
26.44.020 Stop work order.
26.44.030 Order to cure.
26.44.040 Fines.
26.44.050 Removal.
26.44.060 Revocation.
26.44.010 Enforcement procedures and remedies.
(1) If the city determines that a grantee has failed to perform any obligation under this title or has failed to perform in a timely manner, the city may:
(a) Issue a stop work order pursuant to Section 26.44.020; and/or
(b) Issue an order to cure pursuant to Section 26.44.030.
(2) If the violation is contested (as provided in Sections 26.44.020 and 26.44.030), the director shall consider the written communication provided by the grantee and shall notify same of their final decision in writing within a reasonable time period.
(3) If the violation has not been remedied or is not in the process of being remedied to the satisfaction of the city within a reasonable time period following the later of: (i) the expiration of the time period for contesting a violation; and (ii) the notification by the director to the grantee of their final decision in respect of a contestation of the violation, the city may:
(a) Enforce the provisions of this title through injunctive proceedings, an action for specific performance, or any other manner allowed by law.
(b) Impose a fine upon the grantee pursuant to Section 26.44.040.
(c) Assess against the grantee any monetary damages provided for such violation in any agreement between the grantee and the city.
(d) Assess and withdraw the amounts specified above from the grantee’s security fund or other applicable security instrument.
(e) Revoke any franchise or other agreement to use the right-of-way held by the grantee pursuant to Section 26.44.060.
(f) Pursue any legal or equitable remedy available under any applicable law or under any agreement between the grantee and the city.
(4) Remedies available to the city for violations under this title and under a franchise or other agreement to use the right-of-way shall be construed, except as otherwise provided in this title, as cumulative and not alternative.
(5) Unless determined otherwise by an agreement between the parties, a grantee shall pay civil penalties or liquidated damages within thirty days after receipt of notice from the city.
(6) The filing of an appeal to any regulatory body or court shall not stay or release the obligations of a grantee under applicable law or any agreements with the city.
(7) An assessment of liquidated damages or civil penalties does not constitute a waiver by the city of any other right or remedy it may have under applicable law or agreements, including the right to recover from the grantee any additional damages, losses, costs, and expenses, including actual attorneys’ fees, that were incurred by the city by reason of the violation. However, the city’s election of liquidated damages under the franchise or other agreement to use the right-of-way shall take the place of any right to obtain actual damages over and above the payment of any amounts otherwise due. This provision may not be construed to prevent the city from electing to seek actual damages for a continuing violation if it has imposed civil penalties or liquidated damages for an earlier partial time period for the same violation. (Ord. 4891 § 1, 2024; Ord. 4853 § 2, 2023)
26.44.020 Stop work order.
(1) The director may issue a stop work order, impose conditions on any permit, or suspend or revoke a permit if the director determines that:
(a) A person has violated applicable law or regulations or any term, condition, or limitation of a permit;
(b) Right-of-way work poses a hazardous situation or constitutes a public nuisance, public emergency, or other threat to the public health, safety, or welfare; or
(c) An investigation of the work and/or the permit conditions is needed before the work can continue.
(2) The director shall notify the grantee of action taken under subsection (1) of this section by a written communication, and the grantee shall comply immediately after receipt of the notice.
(a) Issuance. A stop work order shall be in writing and shall be provided to the grantee, to the grantee’s authorized agent, or to the person doing the work. Upon issuance of a stop work order, the cited work shall immediately cease. The stop work order shall state the reason for the order and the conditions under which the cited work is authorized to resume.
(b) Emergencies. Where an emergency exists, the director shall not be required to provide a written notice prior to stopping the work.
(c) Failure to Comply. Any person who shall continue any work after having been served with a stop work order, except such work as that person is directed to perform to remove a violation or unsafe condition, shall be deemed guilty of a misdemeanor and/or civil violation in accordance with Chapter 1.12 and the violation shall be deemed a strict liability offense.
(3) The grantee may contest the stop work order by providing to the director a written communication detailing the grounds for such contestation, within thirty days of receipt of the stop work order. However, unless the director promptly orders otherwise for good cause, the submission of such written communication does not excuse the grantee from compliance with the stop work order pending resolution of the dispute. (Ord. 4891 § 1, 2024; Ord. 4853 § 2, 2023)
26.44.030 Order to cure.
(1) The director may order a grantee that has violated applicable law or regulations, or any term, condition, or limitation of a permit, to cure the violation within the time specified in the order.
(2) The grantee may contest the cure order by providing to the director a written communication detailing the grounds for such contestation within thirty days of receipt of the cure order. Unless the director promptly orders otherwise for good cause, the submission of such written communication excuses the grantee from compliance with the cure order pending resolution of the dispute.
(3) If the grantee fails, neglects, or refuses to comply with an order issued under this section that involves right-of-way work, the director may complete the right-of-way work or other work in the rights-of-way in any manner the director deems appropriate, and the grantee shall compensate the department for all costs incurred, including costs for administration, construction, consultants, equipment, inspection, notification, remediation, repair, and restoration. The cost of the work may be deducted from any construction bond or other security instrument of the grantee. The department’s completion of right-of-way work or other work in the rights-of-way does not relieve the grantee from the warranty and liability provisions of Section 26.40.010, the indemnification provisions of Section 26.40.030, or any other term or condition of this title. (Ord. 4891 § 1, 2024; Ord. 4853 § 2, 2023)
26.44.040 Fines.
Any person found violating, disobeying, omitting, neglecting or refusing to comply with any of the provisions of this title shall be guilty of a misdemeanor. Upon conviction any person violating any provision of this title shall be subject to a fine of up to one thousand dollars or by imprisonment for a period of up to ninety days, or both such fine and imprisonment. A separate and distinct violation shall be deemed committed each day on which a violation occurs or continues. (Ord. 4891 § 1, 2024; Ord. 4853 § 2, 2023)
26.44.050 Removal.
(1) Within thirty days following written notice from the city, any grantee with facilities in the city’s rights-of-way that are not authorized pursuant to this title shall, at its own expense, remove such facilities from the rights-of-way. If such grantee fails to remove such facilities, the city may cause the removal and charge the grantee for the costs incurred. Facilities are unauthorized and subject to removal in the following circumstances:
(a) Upon termination of the grantee’s authorization under this title.
(b) If the facilities were constructed or installed without the prior grant of a franchise or other agreement to use the right-of-way.
(c) Upon abandonment of a facility within the rights-of-way.
(d) If the facilities were constructed or installed at a location not permitted by the franchise or other agreement to use the right-of-way.
(2) The city retains the right to cut or move any facilities located within the city’s rights-of-way to the extent the city may determine such action to be necessary in response to any public health or safety emergency. (Ord. 4891 § 1, 2024; Ord. 4853 § 2, 2023)
26.44.060 Revocation.
(1) A franchise or other agreement to use the right-of-way granted by the city may be revoked for any one or more of the following reasons:
(a) Construction or operation at an unauthorized location.
(b) Material misrepresentation by or on behalf of a grantee in any application to the city.
(c) Abandonment of facilities in the rights-of-way without the express written permission of the city.
(d) Failure to relocate or remove facilities as required in this title.
(e) Failure to pay fees or costs when and as due the city.
(f) Violation of a material provision of this title or other agreement to use the right-of-way.
(g) Violation of a material term of a franchise or other agreement to use the right-of-way.
(h) Violation of any federal, state or local law.
(2) In the event that the director believes that grounds exist for revocation of a franchise or other agreement to use the right-of-way, the grantee shall be given written notice of the apparent violation or noncompliance, be provided a short and concise statement of the nature and general facts of the violation or noncompliance, and be given a reasonable period of time not exceeding thirty days from receipt of notice to provide evidence to the director on any or all of the following points:
(a) That corrective action has been, or is being, actively and expeditiously pursued to remedy the violation or noncompliance;
(b) That rebuts the alleged violation or noncompliance; and
(c) That it would be in the public interest to impose civil penalties or sanctions less than revocation.
(3) In the event that a grantee fails to provide evidence reasonably satisfactory to the director as provided hereunder, the director shall issue a determination as to whether an event of default by the grantee has occurred and prescribe remedies in accordance with this section. (Ord. 4891 § 1, 2024; Ord. 4853 § 2, 2023)