Ordinance No. 18-26 CITY OF TIGARD, OREGON
TIGARD CITY COUNCIL
ORDINANCE NO. 18-.13, 6
AN ORDINANCE AMENDING TIGARD MUNICIPAL CODE CHAPTER 15.04 REGARDING
WORK IN THE RIGHT-OF-WAY
WHEREAS,Tigard Municipal Code Chapter 15.04 requires a person wishing to perform work in the right-of-
way to obtain a permit,also referred to as a public facilities permit,prior to starting such work;and
WHEREAS, Code updates are needed to better protect the City when issuing right-of-way permits, including
adding standards of approval for permit issuance as well as work and safety requirements for permittees,
stronger financial guarantees,insurance,and indemnification provisions.
NOW,THEREFORE,THE CITY OF TIGARD ORDAINS AS FOLLOWS:
SECTION 1: Tigard City Council amends Chapter 15.04 of the Tigard Municipal Code as shown on the
attached Exhibit A (additional language is underlined and deleted text is shown in
.striketltretrgh)•
SECTION 2: This ordinance shall be effective 30 days after its passage by the council, signature by the
mayor,and posting by the city recorder.
PASSED: By LU1c,,-u III AAA-) vote of all council members present after being read by number
and title only,this ib day of ' Cm Ictitr" ,2018.
its
Kelly Burgoputy City Re rd• er
APPROVED: By Tigard City Council this day of rie---C-e-tY\ 1( ,2018.
\ 11
John t ook,Mayor
Approved as to fo
City Attorney
Date
ORDINANCE No. 18- ,
Page 1
Exhibit A
TIGARD MUNICIPAL CODE
Chapter 15.04 WORK IN RIGHT-OF-WAY A. "City Engineer" means the City
Engineer for the City of Tigard or his or her
Sections: designee.
15.04.010 Definitions. B4. _ - • .
15.04.020 Jurisdiction. "Eemergency" means a circumstance in which
15.04.030 Permit Required. immediate repair to damaged or malfunctioning
15.04.040 Standards of Approval Pecn+it facilities is necessary to restore lost service or
Applications. prevent immediate harm to persons or property.
15.04.050 Review By City Engineer.
15.04.060 Permit Issuance. C2. Person. As used in this chapter,
15.04.070 Compliance With Permit. "Pperson" means every natural person, firm, co-
15.04.080 Notice Of Construction. partnership, association, corporation or entity, or
15.04.090 Construction in Right-of-Way. district, but does not include the City of Tigard.
15.04.105 Coordination of Construction
15.04.110 As-Built Drawings. D . Right of way. As used in this chapter,
15.04.120 Restoration Of Rights-of-Way "Rfight-of-way" includes City streets, roads,
And City Property. bridges, alleys, sidewalks, trails, paths, and all
15.04.135 Right-of-Way Preservation and other public ways and areas managed by the City.
Rem Policy. "Right-of-way" also includes public utility
15.04.140 Financial Guarantees Seems. easements (PUEs) to the extent that the easement
15.0�'s, 150—UUnusual ties allows use by the permittee planning to use or
15.04.1560 Insurance Repays. using the public utility easement. "Right-of-way"
15.04.1670 Inspection And Acceptance. includes the subsurface under and airspace over
.!•. : ! ! ; • - these areas. "Right-of-way" does not include the
114eesures. airwaves for purposes of CMRS Commercial
15.04.1790 Liability; Indemnification.kw Mobile Radio Services, broadcast television, DBS
Asci nts. Direct Broadcast Satellite, and other wireless
.! .-! ! e . .: • . . ' • : providers, or easements or other property interests
Pavement owned by a single utility or entity.
15.04.180219 Violation--Penaltiesy.
E. "Right-of-way permit" means a permit
15.04.010 Definitions. issued by the City authorizing work in the right-
of-way. A right-of-way permit may also be
The following words and phrases,.when used referred to as a public facility improvement (PFI)
in this chapter shall, for the purpose of this permit.
chapter, have the meanings respectively ascribed
to them in this section, except in those instances F4. Sidewalk. As used in this chapter,
where the context clearly indicates a different "Ssidewalk" means an area specifically delineated
meaning: and constructed for pedestrian use located behind
a curb but within the rights-of-way or within an
easement specifically established for that purpose.
15-04-1
Exhibit A
TIGARD MUNICIPAL CODE
G5. _ . • . . • . . - , stormwater quality and detention facilities located
"Sstreet" or "alley" means every way or place on private property. Notwithstanding, for routine
open as a matter of right to the use of the public maintenance or repair that does not alter or disturb
for vehicular or pedestrian traffic between right- the right-of-way, such as replacement of a light
of-way lines. fixture or trimming of trees, the city may elect to
H. "Work" means any activity that alters or not require a right-of-way permit provided the city
disturbs the right-of-way and includes, but is not receives notice of the planned maintenance repair,
limited to, construction and trenching. along with emergency contact information, as
soon as reasonably practical.
6. Tunnel. As used in this chapter,
"tunnel" means an excavation requiring the B2. No permit shall be issued to The City
removal of dirt or like material and docs not will not issue a right-of-way permit to place or
include driving or forcing of pipe through the maintain a utility system in any portion of the
ground. (Ord 06-11, Ord. 74-14 § 1, 1974). right-of-way unless the applicant has first
complied with the provisions of chapter 15.06 of
15.04.020 Jurisdiction. the Code.
The requirements of this chapter shall apply 3. Any person who cuts upon or within,
to all rights-of-way under the jurisdiction of the breaks, digs up, damages in any manner,
City of Tigard, dedicated by plat or deed, created undermines, or tunnels under any unimproved
by user, or the use thereof controlled by the City public street or public alley for purposes other
pursuant to agreements with Washington County than those described in this chapter, must obtain
or the Oregon Depot talent of Transportation. an encroachment permit pursuant to chapter 15.16
(Ord. 06-11) of this Code. (Ord. 06-11, Ord. 02-22, Ord. 99-
31,Ord. 74-14 § 2, 1974).
15.04.030 Permit Required.
C. The applicant must pay a fee in the
A-1-. It is unlawful for any person to cut upon amount established by resolution of the city
or within, break, dig up, damage in any manner, council.
undermine,. or tunnel under any perform any work
in the right-of-way public street or public alley for 15.04.040 Standards of Approval. Permit
the purposes of doing work in a right of way or in Applications.
a sanitary sewer, storm sewer or water easement
as described in this chapter, without first obtaining The City Engineer may approve the issuance
a right-of-way permit from the City. egg of a right-of-way permit where compliance with
with the provisions of this chapter in regard to the the following standards is demonstrated or found
obtaining of permits, depositing of securities and to be not applicable. The City Engineer may
the making of applications to the City. attach any conditions to the issuance of the permit
Application for permits shall be in the form that are reasonably related to ensuring compliance
prescribed by the City. Permits shall be issued for with this section, other applicable city codes and
a limited time and shall specify the extent of the ordinances, and protection of the public interest.
authority granted by the permit. The City may The City Engineer may require drawings, plans,
also require a right-of-way permit for certain engineering calculations, and specifications sealed
15-04-2
Exhibit A
TIGARD MUNICIPAL CODE
by a professional engineer currently licensed in approval of the deviation being granted by the
the State of Oregon and in sufficient detail to City Engineer.
demonstrate compliance. An applications for
construction permits shall be submitted on forms E. A 24-hour emergency contact name and
provided by the City and shall be accompanied by phone number must be provided.
drawings, plans, and specifications in sufficient
detail to demonstrate: • -- - - - -
shall be accompanied by the following:
Aa. That aAll work will be performed and
any facilities will be constructed in accordance a. A verification that the drawings,
with all applicable codes,rules and regulations,; plans and specifications submitted with the
application comply with all applicable technical
b. That all work will be performed codes, rules and regulations. The City may
and any facilities will be constructed by or for a
franchisee in accordance with the franchise professional engineer.
agreement;
b. A written construction schedule,
c. The location and route of all of which shall include a deadline for completion of
applicant's new facilities to be installed as well as construction. The construction schedule is subject
- . ' ' - to approval by the City Engineer.
show the facilities in relation to the street, curb, c. The permit fee in an amount to be
sidewalk and right of way; determined by resolution of the City Council. The
fee shall be designed to defray the costs of City
Bd. The construction methods to be administration of the construction permit program.
employed for protection of protects existing (Ord. 06-11)
structures,fixtures,and facilities and a description
of any improvements that the applicant or 15.04.050 Review By City Engineer.
proposes to temporarily or permanently remove or
relocate them. The City Engineer will review the
application to determine if it complies with the
C. Appropriate traffic control measures standards in this Chapter. The City Engineer may
will be used to minimize disruption to motorized approve, modify and approve, or deny the
and non-motorized traffic and pedestrians, provide application for a right-of-way permit based on the
for the safety of the general public, and prevent standards in Section 15.04.040. The City
injury or damage to any person, vehicle, or Engineer, after reviewing the materials submitted
property. . .. ' . .. ' .
changes in the construction plans are needed and
D. Standard street sections and standard what City requirements must be met. (Ord. 06-
construction details will be as specified in City's 11)
design and construction standards. No deviation
from these standards will be allowed without
written findings documenting the need and written
15-04-3
Exhibit A
TIGARD MUNICIPAL CODE
15.04.060 Permit Issuance. and general description of the proposed work.
(Ord. 06-11)
Upon a determination that the application
and supporting information complies with the 15.04.090 Construction In Right-of-Way.
requirements of this chapter, the City Engineer
shall will issue a permit authorizing construction A. The permittee must shah complete all
in the rights-of-way, subject to conditions that the construction within the right-of-way so as to
City Engineer deems appropriate to ensure minimize disruption of the right-of-way and utility
compliance with this chapter. In order to service and without interfering with other public
minimize disruption to transportation and to and private property within the rights-of-way. All
coordinate work to be performed in the right-of- construction work within rights-of-way, including
way, the permit may specify a time period within restoration, must be completed within the time
which all work must be performed and require specified by the City Engineer. Upon issuance of
coordination of construction activities. The City a right-of-way permit, the permittee must
Engineer may impose conditions regulating the commence work within 180 days, unless
location and appearance of facilities, subject to otherwise specified by the City Engineer, at which
applicable laws and regulations. (Ord. 06-11) time the right-of-way permit expires and is
voided. 120 days of issuance of the construction
15.04.070 Compliance With Permit. -•• 1 - - '- - • '
has been approved by the City Engineer. The
All construction shall must be in accordance - •'• :•• : :• .
with the permit and approved plans and procedures and standards. (Ord. 06-11)
specifications. The permittee will provide the
City Engineer or designee shall be provided B. Upon completion of daily work, all
access to the work site and the opportunity to work zone areas must be left in a safe condition
inspect any work in the right-of-way. The with all trenches covered.
permittee shah will provide, upon request, any
information needed by the City Engineer of C. Access must be maintained at all times
designee to determine compliance with applicable in compliance with the Americans with
requirements. All work that does not comply with Disabilities Act(ADA).
all the permit requirements shall must either be
corrected or removed at the sole expense of the 15.04.105 Coordination of Construction.
permittee. The City is authorized to issue stop
work orders to assure compliance with this l-. All permittees shall The permittee will
Cehapter. (Ord. 06-11) make a good faith effort to coordinate their
construction schedules with those of the City and
15.04.080 Notice Of Construction. other users of the rights-of-way.
Except in an emergency, the permittee must 2. Unless otherwise agreed to in writing by
shall notify the City Engineer not less than two . :! -. : •• •• . .
working days prior to any excavation or or upgrading of utility facilities or a utility system
construction in the right-of-way. The notice must (as defined in chapter 15.06) that requires a cut or
state the anticipated location, project schedule, opening in the street of 400 linear feet or greater,
15-04-4
Exhibit A
TIGARD MUNICIPAL CODE
the person intending to perform such work shall
provide notice to the City and all other utilities 15.04.120 Restoration Of Rights-of-Way And
• ' . ' ' that arc City Property.
the project area. A-1-. When a permittee does any work in or
affecting any rights-of-way or City property, the
a. The notice must be provided in a permittee must, at its own expense, repair and
• .. . ' restore the area in which the work was performed
utilities. to as good or better condition than before such
work was undertaken, ' . , . ' . • -
b. The notice shall state the anticipated promptly remove any obstructions therefrom and
location, project schedule and general description - - . • . .. - . .. .
of the proposed work. condition unless otherwise directed by the City
and as determined by the City—Engineer Of
c. No permits for work shall be issued designee.
until notice has been given.
B . If weather or other conditions do not
3. All utilities performing work in the permit the complete restoration required by this
rights of way subject to the notice requirement set section, the permittee will shall temporarily
forth in paragraph 2 of this section shall cooperate restore the affected rights-of-way or property.-
with other utilities with permits to do work in the Such temporary restoration shall be at the
same location at or near the same time to permittee's sole expense. The and the permittec
coordinate construction and colocate facilities. shall promptly undertake and complete the
required permanent restoration -Wwhen the
4. Nothing in this section shall require a weather or other conditions no longer prevent
utility to reveal proprietary information. A utility such permanent restoration, the permittee will
shall signify any proprietary information as such promptly complete permanent restoration of the
and the City will protect such information from site. Any corresponding modification to the
disclosure to the extent allowed by law. construction schedule may be subject to approval
by the City.
5. The notification requirement set forth in
paragraph 2 of this section shall not be required C3. If the permittee fails to restore rights-of-
for the installation of facilities in new way or property to good order and condition, the
developments that arc being processed through the City will shall give the permittee written notice
private development review process. and provide the permittee a reasonable period of
time not exceeding thirty (30) days to restore the
15.04.110 As Built Drawings. rights-of-way or property. If, after said notice,the
permittee fails to restore the rights-of-way or
Upon request by the City, a A permittee must property to as good a condition as existed before
shall provide City with two complete sets of the work was undertaken, the City may shall
engineered plans in a form acceptable to the City cause such restoration to be made at the
showing the location of the facilities the permittee permittee's expense at the expense of the
installed or constructed within the rights-of-way permittee.
pursuant to the permit. (Ord. 06-11)
15-04-5
Exhibit A
TIGARD MUNICIPAL CODE
2b. The 4 year limitation period shall
'1. A permittee shall use suitable begins upon the City's final acceptance of the
barricades, flags, flagging attendants, lights, flares completed street or street improvements.
and other measures as required for the safety of all
_ .. . ' 2. Except as provided in paragraph 3 of
injury or damage to any person, vehicle or • - ..•, - • . . . . _ •. •_
property by reason of such work in or affecting - •. .. _
such rights of way or property. of 400 linear feet or greater, the pavement surface
within 100 feet of that cut or opening shall not-he
5. The permittee shall restore all streets, cut or opened for a period of 12 months,provided
alleys, roads and other public ways or places that that the person requesting to cut or open such a
surface received notice of the prior street cut or
prior to permittec's work. The permittee shall opening pursuant to section 15.04.105. The 12
perform all work in compliance with applicable month limitation period shall begin upon the
ances or orders. The City utility's completion of the restoration of the street.
Engineer may issue orders to ensure compliance
with this chapter and proper protection of public B3-. The City Engineer or designee shall
may grant an exceptions to the prohibitions set
make repairs or provide restoration in response to forth in paragraphs 1 and 2 subsection A of this
any order within the time allowed under the order, section: (1) in an emergency emergency situations
City may make those repairs at the expense of the (as defined in paragraph 4), (2) when cutting or
pefm4dee.(Ord. 06-11) opening the street is required to locate existing
facilities when tunneling,boring, or pushing under
15.04.135 Right-of-Way Preservation And the street (e.g., "potholing"), and (3)to provide or
Restoration Policy maintain utility services to a property when no
other reasonably practicable alternative exists
A�. Except as provided in subsection B within the right-of-way or existing utility
paragraph 3 of this section, after any street has easement, or (4). The City Engineer or designee
been constructed, reconstructed, paved or may grant exceptions to the prohibitions set forth
improved by any person, the driving surface of the in paragraphs 1 and-2 of this section when, in the
pavement may shall not thereafter be cut or sole discretion of the City Engineer, compelling
opened for a period of 4 years. circumstances warrant the cutting or opening of
the street.
la. The City Engineer will shall make
the final determination on what construction or Ca. In granting an exception, the City
improvement will result in a limitation set forth in Engineer may impose conditions determined to be
paragraph 1 subsection A of this section and will appropriate to completely restore the street and
shall create, maintain and make available to the provide equivalent surface quality, durability and
public a list of the streets and street segments rideability. Conditions may include surface
subject to the limitation. Only streets named on grinding, base and sub-base repairs, or similar
the list will shall be subject to the limitation set work, and may include up to a full-width surface
forth in paragraph 1 subsection A. paving of the roadway.
15-04-6
Exhibit A
TIGARD MUNICIPAL CODE
b. The City Engineer shall develop to paragraph 3. The person must ensure the right-
and maintain guidelines for use in determining the of-way or City property is restored pursuant to
. .. .. '. . . Section 15.04.120 and complies with any
imposed under subparagraph (a), and shall conditions pursuant to this Section 15.04.135.
circumstances in imposing restoration conditions. 5. Within three years after this provision
becomes effective, the City Engineer or designee
c. In the event that the City Engineer shall review the application and effectiveness of
requires the partial or full repaving of a street this section and report the findings of the revie v
segment, the City Engineer may require that a to the City Council. The review shall include
financial security in a form acceptable to the City .. - ••be provided to the City in the amount of the .
estimated cost of the repaving prior to performing section, and the circumstances in which
any work in the City's rights of way. exceptions have been granted and conditions have
been imposed under paragraph 3. The City
d. The denial of a request for an Engineer or designee shall provide all persons
. - - - • .. . who requested permits to cut or open a street
exemption under this section may be appealed to subject to the limitations of this section a
the City Manager, who shall have 15 business reasonable opportunity to provide written
days to determine if the denial or conditional comments and include in the report all comments
approval complies with the terms of this chapter. received. (Ord. 06-12)
Appeals must be in writing and received by the
City Manager not more than 15 business days 15.04.140 Financial Guarantees Security.
after the applicant's notice of the denial or
conditional approval of the request. When the City, in its sole discretion,
determines that a permittee's work or manner of
D4. Notwithstanding the provisions of this performance warrants, the permittee shall the City
section, in an emergency, emergency situations, may require the permittee provide a cash deposit,
any person cutting or opening a street subject to bond, or other a financial guarantee security in a
•- •• . , will, when form acceptable to the City in an amount equal to
reasonably feasible, seek verbal authorization at least 125-1-1-0% of the estimated costs of
from the City Engineer ordesignee for an construction in the rights-of-way. The financial
exception. - ••- • ' .. are those in security guarantee must shall remain in force until
which immediate repair to damaged or 60 days after substantial completion, including
malfunctioning facilities is necessary to restore restoration of rights of way and other property, as
lost service or prevent immediate harm to persons determined by the City the City accepts the work
or property. Whether or not verbal authorization and the work is covered by a satisfactory financial
was given, the utility operator shall person must guarantee or maintenance bond in the amount of
apply for a permit for such work as soon as 25% of the public improvements installed in the
reasonably practicable, but not more than 48 hours right-of-way for the maintenance period of 2 years
after commencing work„ and the owner of the from the date of acceptance by the City. The
facility shall be subject to any restoration financial security guarantee will shall guaranty
conditions imposed by the City Engineer pursuant timely completion, construction in compliance
15-04-7
Exhibit A
TIGARD MUNICIPAL CODE
with applicable plans, permits, codes and less than the limits of public body liability under
standards, proper location,restoration of rights-of- the Oregon Tort Claims Act. The policy must also
way and other property, and timely payment and contain a provision that the city will be notified at
satisfaction of all claims, demands or liens for least 10 days prior to any cancellation of such
labor,material or services. (Ord. 06-11) insurance. The permittee must maintain the
insurance for the term of the permit issued.
.! . ! _ . . . Failure to maintain the insurance results in
automatic revocation of the permit. The-pie
The City Engineer may grant the permit even ..'
• .. .. area in which the work was performed to-as good
conditions are present: unam (Ord. 06-11, Ord. 02-22, Ord. 74-14
§17, 1974).
1. There are peculiar physical conditions
not ordinarily existing in similar districts in the 15.04.1600 Inspection and Acceptance.
makes compliance with all standards impossible The permittee must notify the City Engineer
or impractical; or designee upon completion for inspection of the
work to determine compliance with the
2. The public interest, particularly safety, requirements of this chapter, prior to final
health, and general welfare is not adversely acceptance of the work. The permittee will shall
affected; not be relieved of obligations under any guarantee
3. The gr-anting of the permit will not security given pursuant to Section 15.04.140 the
_ .. . . .. provisions hereof until the work is in accordance
- - - •. • ; . •: with the terms of the permit and has been
4. The application of the standards of this accepted by the City. Acceptance by the City
chapter would work unnecessary hardship upon does not relieve the permittee of its obligation to
the applicant, property owner, tenants, or maintain, repair, or reconstruct the site of the
residents. (Ord. 06 11, Ord. 02 22, Ord. 74 11 excavation so as to maintain a condition
§12, 1974). acceptable to the City Engineer until the right-of-
way is reconstructed, repaved, or resurfaced by
15.04.1504-60 Insurance Repfti-rs. the City. (Ord. 06-11, Ord. 02-22, Ord. 74-14
§14, 1974).
As a condition of permit issuance, when the
City determines that the proposed work may .!•. : ! . . . _ . • . " . . .
subject the City to potential liability,the City may
require the applicant to obtain general liability :•, . : . .
insurance and file a certificate of insurance with chapter or otherwise, places any obstruction in a
the city from an insurance company acceptable to right of way or makes any excavation therein for
the city. The policy will name the city, its any purpose whatsoever, it shall be the duty of
officers, agents, and employees as additional such person to keep the obstructions or excavation
insureds. The amount of the insurance policy will . .. _ .. ..
be determined by the city, but in no case will it be and display lighted red lanterns or other lights or
15-04-8
Exhibit A
TIGARD MUNICIPAL CODE
flares from dusk until daylight in conformity with excavation in the right of way. (Ord. 06-11, Ord.
• _ - 74-14 §16, 1974).
Engineer. Whenever, in the opinion of the City
Engineer, the public safety is endangered by such .!•.-! ! ! : ': - : ' • : : ••
cuts or excavations as to require -constant Pavement
•• •- -• - - - The permittee shall replace or repair the
-• _• •• - - • street surface or pavement cut, damaged, tunneled
properly routed around such barricades, the under or undermined under the provisions of this
permittee shall be responsible for furnishing such chapter. If the permittee fails to restore the street
superision. (Ord. 06 11, Ord, 02 22, Ord. 71 11 surface or pavement as required by this chapter,
§15, 1974). the City may replace or repair the street surface or
pavement and either charge the permittee or
15.04.170190 Liability for Accidents; deduct the cost from the security deposited by the
Indemnification. permittee with the City. (Ord. 06 11, Ord. 71 11
§18, 1974).
The permittee is responsible and liable for all
accidents, environmental clean-up, damages or
injuries to any person or property resulting from
work performed by or under the direction of the
permittee, permittee's agents, or employees in the
right-of-way. The permittee will indemnify, 15.04.1800 Violation--Penalties.
defend, and hold harmless the City, its elected
officials, and all officers, employees or agents Failure to comply with a provision of this
against any and all damages, claims, demands, chapter shall be is a Class 1 Civil Infraction.
actions, causes of action, costs and expenses of (Ord. 06-11, Ord. 02-22, Ord. 74-14 §21, 1974)11
whatsoever nature which they or any of them may
sustain by reasons of the acts, conduct or
operation of the permittee, the permittee's agents,
or employees in connection with their work in the
right-of-way.
ving occasion to place. any
obstruction in the right of way or to make any
excavation therein under the provisions of this
chapter shall be responsible to anyone for any
injury by reason of the presence of such
obstructions or excavation on the public highways
proximate cause of the injury and shall also be
liable to the City, in the event that the City is held
responsible for any action or claims or otherwise
arising out of the presence of the obstruction or
15-04-9