Ordinance Number 288

An Ordinance requiring a permit for construction work in Town right of way.

Whereas, the Town of Deer Trail, Colorado desires to require permits for construction or improvements performed in Town right-of-way.

Be it ordained by the Board of Trustees for the Town of Deer Trail, Colorado, that:

Section 1. Purpose.

The purpose of this Ordinance is to establish principles, standards and procedures for the placement of facilities, construction, excavation, encroachments and work activities within, under or upon any public right-of-way, and to protect the integrity of the Town's street system.

Section 2. Definitions.

For the purpose of this Ordinance, the following words shall have the following meaning unless context indicates otherwise:

Approved alignment means the designed horizontal and vertical alignment of facilities to be installed in the public right-of-way which is approved by the Town at the time the permit is issued.

Contractor means a person, partnership, corporation, or other legal entity which undertakes to construct, install, alter, move, remove, trim, demolish, repair, replace, excavate, landscape, or add to any improvements or facilities in the public right-of-way, or that requires work, workers, and/or equipment and/or materials to be in the public right-of-way in the process of performing the above named activities.

Developer means the person, partnership, corporation, or other legal entity improving a parcel of land within the Town and being legally responsible to the Town for the construction of infrastructure within a subdivision or as a condition of a building permit.

Excavate or excavation means to dig into or in any way remove or penetrate any part of a public right-of-way, including trenchless excavation such as potholing, boring, tunneling and jacking.

Facilities means any pipe, conduit, wire, cable, amplifier, transformer, fiber optic cable, antenna, pole, streetlight, duct, fixture, appurtenance or other like equipment used in connection with transmitting, receiving, distributing, offering, and providing utility and other services, whether above or below ground.

Infrastructure any public facility, system, or improvement including water and sewer mains and appurtenances, storm drains and structures, streets, alleys, traffic signal poles and appurtenances, conduits, signs, landscape improvements, parks, bike paths, trails, sidewalks, and public safety equipment.

Major Installation means work in the public right-of-way involving an excavation exceeding five hundred feet in length.

Public Right of way means any public street, way, place, alley, sidewalk, trail, path, easement, park, square, median, parkway, boulevard or plaza that is dedicated to public use.

Work means any labor performed within a public right-of-way and/or any use or storage of equipment or materials within a public right-of-way, including without limitation, placement or installation of traffic control devices; excavation; resurfacing; construction of streets, fixtures, improvements, sidewalks, driveway openings, bus shelters, bus loading pads, street lights, and traffic signal devices; construction, maintenance, and repair of all underground facilities such as pipes, conduit, ducts, tunnels, manholes, vaults, cable, wire, or any other similar structure; maintenance of facilities; and installation of overhead poles used for any purpose.

Section 3. Permit Required.

No person except an employee or official of the Town or a person exempted by contract with the Town shall undertake or permit to be undertaken any work in a public right-of-way without first obtaining a permit from the Town as set forth in this Ordinance. Permits shall be valid only for the person or company listed on the permit. No person or company, including sub-contractors shall work under another person or company's permit. Copies of the permit and associated documents shall be maintained on the work site and available for inspection upon request by any officer or employee of the Town.
No permittee shall perform work in an area larger or at a location different, or for a longer period of time than that specified in the permit. If, after work is commenced under an approved permit, it becomes necessary to perform work in a larger or different area or for a longer period of time than what the permit specifies, the permittee shall notify the Town immediately and within twenty-four hours shall file a supplementary application for the additional work.
Permits shall not be transferable or assignable without the prior written approval of the Town.
Any person conducting any work within the public right-of-way without having first obtained the required permit shall immediately cease all activity and obtain a permit before work may be resumed.

Section 4. Development.

In the Town, the construction of infrastructure in new developments is the responsibility of the developer. Once a public right-of-way has been dedicated to the Town, all work in that public right-of-way, including the installation of new infrastructure by a developer, shall be subject to this Ordinance.

Section 5. Permit Application.

An applicant for a public right-of-way permit shall file a written application on a form furnished by the Town which includes the following information:
1. The date of application.
2. The name, address and telephone number of the applicant and any contractor or subcontractor which will perform any of the work.
3. Construction plans showing the work site, the public right-of-way boundaries, all infrastructure in the area, and all landscaping in the area.
4. The purpose of the proposed work
5. A traffic and pedestrian control plan.
6. The dates for beginning and ending the proposed work and proposed hours of work, and the number of actual workdays required to complete the project. Right-of-way permits shall be valid for a maximum of ninety days from the date of issuance and shall be allowed one extension of ninety days.
7. A copy of each contractor's license.
8. Certificate of insurance as required by Section 8.
9. Performance, Payment, Maintenance and Warranty Bond as required by Section 10.
10. Concrete, asphalt, and controlled low strength material (CLSM) mix designs.
11. If applicable, State of Colorado Stormwater Discharge permit.
12. The applicable permit fees as set forth in the Town of Deer Trail Fee Schedule.
For any work in the public right-of-way which includes excavation, in addition to the information required by subsection (a) of this section, the application shall include the following information:
1. An itemization of the total cost of construction, including labor and materials but excluding the cost of any privately owned facilities being installed which will not be dedicated to the Town.
2. Copies of all permits and licenses (including required insurance, deposits, bonds, and warranties) required to do the proposed work, whether required by federal or state law or Town resolution, ordinance or regulation.
An applicant for a public right-of-way permits for a major installation shall, in addition to the information required by subsections (a) and (b) of this section, submit the following information:
1. Field-verified locations of all existing facilities.
2. Engineering construction drawings or site plans for the proposed work in a format acceptable to the Town and signed by a professional engineer licensed in the State of Colorado, except that an applicant expressly exempt from the signature requirement pursuant to C.R.S. § 12-25-103, as amended, need not include the signature of a licensed professional engineer.
An applicant shall update a permit application within ten calendar days after any material change occurs.
Applicants may apply jointly for permits to work in public rights-of-way at the same time and place. Applicants who apply jointly for permits may share in the payment of the permit fees. Applicants must agree among themselves as to the portion each shall pay, and if no agreement is reached, payment in full shall be required of all applicants.
The applicant for a public right-of-way permit shall be the contractor performing the work.
By signing an application, the applicant is certifying to the Town that the applicant is in compliance with all other permits issued by the Town, that the applicant will not allow any other applicants to work under the permit, and that the applicant is not delinquent in any payment due to the Town for prior work. This certification shall not apply to outstanding claims which are honestly and reasonably disputed by the applicant, if the applicant and the Town are negotiating in good faith to resolve the dispute.

Section 6. Town Review and Approval.

An application for a public right-of-way permit shall be reviewed by the Town for completeness within ten working days of submission. If the application is not complete, the Town shall notify the applicant of all missing information within the five-day time period.
Once an application is deemed complete by the Town, the Town shall review the application to determine whether the application complies with this Ordinance and other Town laws and regulations. The time for such review shall be as follows:
1. For a public right-of-way permit which does not include excavation, within five working days.
2. For a public right-of-way permit which includes excavation but is not a major installation, within ten working days.
3. For a public right-of-way permit for a major installation, within fifteen working days.
At the conclusion of the review period, the Town shall either approve the permit, approve the permit with conditions, or deny the permit. If the permit is denied, the Town shall send a written notice of denial to the permittee at the address listed on the application, via first-class mail, postage prepaid. The notice shall include the reason(s) for denial.

Section 7. Permit Fees.

Before a public right-of-way permit is issued, the applicant shall pay to the Town a permit fee, which shall be determined in accordance with the Town's fee schedule. Permit fees shall be reasonably related to the costs of managing the public rights-of-way. These costs include, without limitation, the costs of reviewing and issuing rights-of-way permits, verifying rights-of-way occupation, mapping rights-of-way occupation, inspecting work, administering this Ordinance, and, if applicable, costs relating to restoration of the public right-of-way to remedy degradation of that public right-of-way caused by the permittee.

Section 8. Insurance.

Unless otherwise specified in a franchise agreement or other maintenance agreement between a permittee and the Town, prior to the granting of any permit, the permittee shall carry and maintain in full effect at all times the following insurance coverage:
1. Workers' Compensation Insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this permit, and Employer's liability insurance with minimum limits of one hundred thousand dollars ($100,000) each accident, one hundred thousand dollars ($100,000) disease - each employee, and five hundred thousand dollars ($500,000) disease - policy limit. Evidence of qualified self-insured status may be substituted for the workmen's compensation insurance requirements of this paragraph.
2. General Liability Insurance with minimum combined single limits of one million dollars ($1,000,000) each occurrence and two million dollars ($2,000,000) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including independent contractors), products, and completed operations. The policy shall include coverage for explosion, collapse, and underground hazards. The policy shall contain a severability of interest provision.
3. Comprehensive Automobile Liability Insurance with minimum combined single limits for bodily injury and property damage of not less than one million dollars ($1,000,000) each occurrence and two million dollars ($2,000,000) aggregate with respect to each of permittee's owned, hired or non-owned vehicles assigned to or used in performance of the services. The policy shall contain a severability of interests' provision.
The policy shall be endorsed to include the Town of Deer Trail and the Town of Deer Trait's officers, volunteers and employees as additional insureds. Every policy shall be primary insurance, and any insurance carried by the Town, its officers, or its employees, or carried by or provided through any insurance pool of the Town, shall be excess and not contributory insurance to that provided by Contractor. No additional insured endorsement to the policy shall contain any exclusion for bodily injury or property damage arising from completed operations. The permittee shall be solely responsible for any deductible losses under any policy required above.
The Certificate of Insurance, with an original signature shall be provided to the Town and shall be completed by the permittee's insurance agent as evidence that policies providing the required coverage, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the Town prior to issuance of the permit. No other form of certificate shall be used. The certificate shall provide that the coverage afforded under the policies shall not be canceled, terminated or materially changed until at least 30 days prior written notice has been given to the Town.

Section 9. Indemnification.

Each permittee, for itself and its related entities, agents, employees, subcontractors, and the agents and employees of said subcontractors, shall hold the Town harmless and defend and indemnify the Town, its successors, assigns, officers, employees, agents, and appointed and elected officials from and against all liability or damage and all claims or demands whatsoever in nature, and reimburse the Town for all its reasonable expenses, as incurred, arising out of any work or activity in the public right-of-way, including without limitation, the actions or omissions of the permittee, its employees, representatives, agents, contractors, related entities, successors and assigns, or the securing of and the exercise by the permittee of any rights granted in the permit, including any third party claims, administrative hearings, and litigation; whether or not any act or omission complained of is authorized, allowed, or prohibited by this Ordinance or other applicable law. A permittee shall not be obligated to hold harmless or indemnify the Town for claims or demands to the extent that they are due to the negligence or willful and wanton acts of the Town or any of its officers, employees, or agents.
Following the receipt of written notification of any claim, the permittee shall have the right to defend the Town with regard to all third-party actions, damages and penalties arising in any way out of the exercise of any rights in the permit. If at any time, however, a permittee refuses to defend the Town, and the Town elects to defend itself with regard to such matters, the permittee shall pay all expenses incurred by the Town related to its defense, including reasonable attorney fees and costs.
If a permittee is a public entity, the indemnification requirements of this section shall be subject to the provisions of the Colorado Governmental Immunity Act.
If any provision of this section conflicts with any provision of a valid, effective franchise agreement between the permittee and the Town, the conflicting provision of this section shall not apply to the franchisee, and the franchisee shall instead honor the provision of the franchise agreement.

Section 10. Performance Bonds and Letters of Credit.

Before a public right-of-way permit is issued, the applicant shall file with the Town a bond or letter of credit, at the applicant's choice, in favor of the Town in an amount equal to the total cost of construction, including labor and materials but excluding the cost of any private facilities being installed, or five thousand dollars, whichever is greater. The bond or letter of credit shall be executed by the applicant as principal and by at least one surety upon whom service of process may be had in the state. The bond shall be on the form provided by the Town. The bond or letter of credit shall be conditioned upon the applicant fully complying with all provisions of Town ordinances, resolutions and regulations, and upon payment of all judgments and costs rendered against the applicant for any violation of any Town resolution, regulation or ordinances or state law arising out of any negligent or wrongful acts of the applicant in the performance of work pursuant to the permit.
The Town may bring an action on the bond or letter of credit on its own behalf or on behalf of any person so aggrieved as beneficiary.
The bond or letter of credit, with an original signature, in a form acceptable to the Town, shall be approved by the Town prior to the issuance of the permit.
A letter of responsibility, in a form acceptable to the Town, shall be accepted from special districts and governmental agencies in lieu of a performance bond or letter of credit.
An annual bond of sufficient amount to cover all proposed work during the upcoming year may be filed with the Town on an annual basis in lieu of the project-specific performance bonds or letters of credit required by subsection (a) of this Section. The form and amount of the annual bond shall be subject to the prior review and approval of the Town. Should the annual bond be deemed insufficient by the Town based on the work to date or based on the circumstances of a particular project which, in the Town's sole discretion, requires a project-specific bond, the Town may require additional, project-specific performance bonds or letters of credit pursuant to subsection (a) of this Section. The Town shall further be authorized to require an annual bond and/or a project-specific bond from any contractor, whether or not such contractor is referred to by the applicant as a subcontractor, if the Town determines such contractor is not working under the direct supervision of another contractor which has already furnished such a bond.
The performance bond, annual bond, letter of credit or letter of responsibility shall remain in force and effect for a minimum of two years after completion and written acceptance by the Town of the construction work.
If any provision of this section conflicts with any provision of a valid, effective franchise agreement between the applicant and the Town, the conflicting provision of this section shall not apply to the franchisee, and the franchisee shall instead honor the provision of the franchise agreement.
If any provision of this section conflicts with any provision of any valid, effective agreement between a special district or other public entity and the Town, the conflicting provision on of this section shall not apply, and the special district or other public entity shall instead honor the provision of the agreement.

Section 11. Warranty.

A permittee, by acceptance of the permit, expressly warrants and guarantees complete performance of the work in a manner acceptable to the Town and in accordance with this Ordinance and warrants and guarantees all work done for a period of two years after the date of probationary written acceptance.
Under the warranty, the permittee shall at its own expense repair or replace, at the discretion of the Town, any portion of the work that fails, is defective, is unsound, or is unsatisfactory because of design, engineering, materials or workmanship.
The warranty period shall begin on the date of the Town's probationary acceptance of the work. If repairs are required during the warranty period, those repairs need only be warranted until the end of the initial two-year period starting with the date of probationary written acceptance.
At any time prior to completion of the warranty period, the Town may notify the permittee in writing of any needed repairs. If the defects are determined by the Town to be an imminent danger to the public health, safety and welfare, the permittee shall begin repairs within twenty-four hours of receipt of the written notice and continue the repairs until completion. Non-emergency repairs shall be completed within fourteen days after notice.
The warranty shall cover only those areas of work performed by the permittee which provided the warranty and not directly impacted by the work of any other permittee or the Town. If a portion of work warranted by a permittee is subsequently impacted by work of another permittee, another user of the right-of-way or the Town during the warranty period, the other permittee or the Town, as applicable, shall assume responsibility for repair to the subsequently impacted portion of the public right-of-way.

Section 12. Inspections.

The following five inspections shall take place, at a minimum:
1. Preconstruction Inspection. The permittee shall request that the Town conduct a preconstruction inspection, to determine any necessary conditions for the permit;
2. Utility Marking Inspection. The Town shall conduct a utility marking inspection where necessary;
3. Construction Inspection. The permittee shall notify the Town forty-eight hours in advance of the start of work, and shall notify the Town of inspection requests with twenty-four hours advance notice. All work performed in the Town right-of-way shall be subject to inspection.
4. Completed Work Inspection. The permittee shall notify the Town immediately after completion of work. The Town shall inspect the work within twenty-one days of the permittee's notification. Probationary acceptance shall be made if all work complies with this Ordinance and any other applicable Town regulation, ordinance or resolution. Written notice of probationary acceptance shall be mailed by first-class mail, postage prepaid, to the permittee's address as listed on the permit application;
5. Warranty Inspection. Approximately thirty days prior to the expiration of the two-year warranty period, the Town shall conduct a final inspection of the work. If the work is still satisfactory, the bond or letter of credit shall be returned or allowed to expire and the Town shall issue a letter of final acceptance;
Upon review of the application for a permit, the Town shall determine how many additional inspections, if any, may be required. The total number of required inspections shall be listed on the permit. For a permit which does not include excavation, the Town may waive any or all of the above-listed inspections.

Section 13. Time of Completion.

All work covered by the permit shall be completed within the time period stated on the permit, unless an extension has been granted by the Town in writing, in which case all work shall be completed within the time period stated in the written extension.
Permits shall be void if work has not commenced within thirty days after issuance unless an extension has been granted by the Town in writing. The permittee shall request such an extension in writing, and the Town shall either grant or deny the request within five working days of receipt of the request.

Section 14. Joint Planning and Construction.

Whenever it is possible and reasonably practicable to joint trench or share bores or cuts, a permittee shall meet and cooperate with other providers, licensees, permittees, and franchisees so as to reduce so far as possible the number of street cuts and bores within the Town and the amount of pedestrian and vehicular traffic that is obstructed or impeded. Should two permittees refuse to joint trench or share bores or street cuts, the Town may require each permittee to submit written evidence detailing why such joint trenching or sharing would be impossible or impractical. Such evidence may include the potential impact of joint trenching or sharing on the timing of the initiation and/or completion of the work. The Town shall consider the evidence submitted. Should the permittee fail to provide evidence satisfactory to the Town that joint trenching or sharing is impossible or impractical, the Town may deny a permit on that basis.

Section 15. Locate Information.

Any person owning facilities in the public right-of-way shall provide field locate information to the Town and any other permittee with a valid public right-of-way permit which authorizes locate pothole excavation or other excavation work. Within seven days of receipt of a written request from the Town or such a permittee, the facility owner shall field locate facilities in the public right-of-way in which the work will be performed.
A permittee shall obtain a public right-of-way permit to locate other existing facilities. The location of such facilities shall be field-verified in a manner approved by the Town.
Before beginning excavation in any public right-of-way, a permittee shall contact the Utility Notification Center of Colorado (UNCC) and, to the extent required by C.R.S. § 9-1.5-102 et seq., make inquiries of all ditch companies, utility companies, districts, local governments, and all other agencies that might have facilities in the area of work to determine possible conflicts. The permittee shall contact the UNCC, and request field locates of all facilities in the area pursuant to UNCC requirements. Field locates shall be marked prior to commencing work.

Section 16. Minimal Interference with Other Property.

Work in the public right-of-way or on or near other public or private property shall be done in a manner that causes the least interference with the rights and reasonable convenience of property owners and residents. Facilities shall be located, constructed, and maintained in such manner as not to interfere with sewers, water pipes, or any Town property, or with any other pipes, wires, conduits, pedestals, structures, or other facilities that may have been laid in the public rights-of-way by the Town or under its authority.
Facilities shall not unnecessarily hinder or obstruct the free use of the public rights-of-way or other public property, interfere with the travel and use of the public rights-of-way by the public during the construction, repair, operation or removal thereof, or obstruct or impede traffic.

Section 17. Underground Construction and Use of Poles.

When required by Town ordinance, resolution or regulation or applicable state or federal law, and in locations where all existing facilities are located underground, all of a permittee's facilities shall be installed underground at no cost to the Town.
In areas where existing facilities are above-ground, the permittee may install above-ground facilities.
For above-ground facilities, a permittee shall use existing poles wherever possible.

Section 18. Town's Use of Trenches. Bores and Other Facilities Located in the Right-of-Way.

Should the Town desire to place its own facilities in trenches or bores opened by a permittee, the permittee shall cooperate with the Town in any construction by the permittee that involves trenching or boring provided that the Town has first notified the permittee in writing that it is interested in sharing the trenches or bores in the area where the permittee's construction is occurring. The permittee shall allow the Town to place its facilities in the permittee's trenches and bores, provided that: the Town incurs any incremental increase in cost of the trenching and boring; the Town's installation does not unreasonably delay the permittee's work; and the Town's facilities are used solely for noncommercial, Town purposes. The Town shall be responsible for maintaining its respective facilities buried in the permittee's trenches and bores. If requested by the permittee, the Town shall have separate access structures, and shall not use the permittee's access structures.
Every utility and every provider of similar service within the Town, regardless of whether it holds a franchise from the Town, may be required by the Town to permit joint use of its facilities located in the streets, alleys, or other public places in the Town, as such may be reasonably practicable. Examples of such joint use may include, without limitation, attachment of flags, banners, or similar signs announcing public events, holiday lights and other decorative attachments, pedestrian or other traffic related safety signs, flashing crosswalk lights, flower pots and baskets, and other similar attachments. Such use of said facilities by the Town shall not create a material negative impact on a private entity's facilities or operations, and such use may only be considered when it can be accomplished, at the Town's discretion, in a manner that is protective of public health and safety. Nothing contained herein shall limit the Town's ability to enter into any other type of joint use agreement with utility and other service providers owning facilities located in Town streets, alleys, or other public places.
The Town may adopt standards for use by the Town of a private entity's facilities in Town streets, alleys and other public places and shall apply such standards to all similarly situated facilities; provided, however, that such standards may be modified where unusual conditions indicate such a modification will allow for an adequate and safe utilization of such facilities.
If the utility or other service provider that is the owner of the facilities in the streets, alleys or other public places objects to any proposed Town use of such facilities, the Town shall be permitted to undertake a study to address the concerns raised by the facilities' owner.
1. The owner of the facilities shall cooperate in providing the Town any information reasonably needed to study and respond to the facilities' owner's objections. For purposes of this Section, an owner shall be deemed to have failed to cooperate if it does not provide the Town with any information reasonably requested within seven (7) calendar days of a written request.
2. If the Town provides information to the utility or other service provider which reasonably demonstrates that its proposed use of the facility will not cause a material negative impact on the utility or other service provider's facilities or operations and will not negatively impact public health and safety, the facility owner shall allow the Town's proposed use, subject to any conditions reasonably necessary to insure that the use will not cause the negative impacts described herein. Failure to make such facilities available for Town use as provided herein shall be a violation of this Chapter and subject to the penalties set forth in Section 27 of this Chapter.
It shall be unlawful for any person, including any representative or contractor of a utility or other service provider, to remove flags, banners, or similar signs announcing public events, holiday lights and other decorative attachments, pedestrian or other traffic related safety signs, flashing crosswalk lights, flower pots and baskets, and other similar attachments from facilities located in the streets, alleys, or other public places in the Town without receiving advance written permission from the Town Clerk or Town Clerk's designee.
In addition to addressing violations of this Section under Section 27, if a facility owner fails to make its facilities available after the Town has provided the information described in this Section 18-4, the Town Clerk or the Town Clerk's designee is authorized to withhold issuance of a building permit or any other required permit sought by the facility's owner until arrangements have been made to the Town's satisfaction that the requested Town use of the facilities in the streets, alleys, or other public places is being provided.

Section 19. Town of Deer Trail Public Right-of-Way Standards and Specifications.

Except as otherwise provided in this Ordinance, the permittee shall be fully responsible for the cost and actual performance of all of its work in the public rights-of-way.
All restoration shall result in a work site condition equal to or better than that which existed prior to the work.
No patching of potholes shall be permitted. Permittees seeking to repair potholes must obtain a permit with resurfacing plans approved by the Town, using materials approved by the Town and must, at minimum, resurface the pavement of the entire Town block in which the section being repaired is located.

Section 20. Restriction on Working Hours in Rights-of-Way.

To reduce the impact of work within the public right-of-way within the Town between the hours of 6:00 a.m. and 10:00 p.m. ("business hours"), the Town shall restrict the hours of work in such public rights-of-way to 8:30 a.m. through 3:30 p.m., Monday through Friday, and 10:00 p.m. through 5:30 a.m., Sunday through Thursday.
If the right-of-way is subject to excavation or construction as part of a Town, state or other public improvement project, public right-of-way permits for major installations during business hours may be issued by the Town during such improvement project notwithstanding the restrictions set forth in this section.
The Town may, in its discretion, grant an exemption to the restriction on working hours in Town rights-of-way.

Section 21. Newly Resurfaced and Constructed Streets.

For newly resurfaced and constructed or reconstructed streets, no street cuts or excavation in the pavement shall be permitted within three years of the completion of the resurfacing or construction.
The Town shall publish on its website during the spring of each year, a list of those streets which will be resurfaced or constructed in that year.
Exemption. In rare circumstances, the Town may grant an exemption from this section in accordance with the following procedures:
1. A request for exemption shall be in writing on a form acceptable to the Town, and shall contain the following information, at a minimum:
  1. A detailed and dimensional engineering plan that identifies and accurately represents all public rights-of-way and other property that will be impacted by the proposed work, and the method of construction;
  2. The location, width, length, and depth of the proposed excavation;
  3. A statement as to how any of the criteria set forth in subsection B of this Section apply to the proposed work;
2. Criteria for Approval. In determining whether an exemption should be granted, the Town shall consider the following criteria, at a minimum:
  1. Whether alternative alignments that do not involve excavating in the street are available;
  2. Whether the proposed excavation can reasonably be delayed until after the three-year period has elapsed;
  3. Whether duct, conduit or other facilities are reasonably available from another user of the public right-of-way;
  4. Whether the proposed work involves joint trenching or joint use, and the number of users to share in the trenching or use;
  5. Whether the proposed work is to be by horizontal boring, tunneling or open trenching;
  6. Whether applicable law requires the applicant to provide service to a particular customer, and whether denial of the exemption would prevent the applicant from providing such service;
  7. Whether the purpose of the proposed work is to provide service to a particular building, or a customer within a building who has requested such service, and whether denial of the exemption would prevent the applicant from providing such service.
  8. Whether the work is limited to locate potholing to provide locate information required by Section 15.
Exemptions for Emergency Operations. Emergency operations m newly resurfaced or constructed streets shall be permitted pursuant to Section 24.

Section 22. Relocation of Facilities.

If the relocation of any facilities in the public right-of-way becomes necessary to allow the Town to make any public use of the public right-of-way, or because of the improvement, repair, construction or maintenance of any public right-of-way, or because of traffic conditions, public safety or installation of any type of public improvement by the Town or other public agency or special district, or if the Town implements any general program for the undergrounding of such facilities, the Town may request the owner to relocate facilities within or adjacent to public rights-of-way, either temporarily or permanently. The Town shall notify the affected owner, at least ninety days in advance, except in the case of emergencies, of the reason for the relocation and the projected start date of the project necessitating the relocation. The Town shall provide the affected owner with such notice at least one hundred twenty days in advance if the relocation will be considered a major installation under this Ordinance. The owner shall thereupon, at its own cost, accomplish the necessary relocation within a reasonable time from the date of the notification, but in no event later than three working days prior to the date listed in the notice as the proposed start date, or immediately in the case of emergencies.
Should the owner fail to perform the relocation, the Town may perform such relocation at the owner's expense and the owner shall reimburse the Town as provided in Section 25.
Following relocation, the owner shall, at the owner's expense, restore all affected property to, at a minimum, the condition which existed prior to the work. An owner may request additional time to complete a relocation project, and the Town may grant an extension if, in its sole discretion, the extension will not adversely affect the Town's project or the public use of the affected public rights-of-way.

Section 23. Abandonment and Removal of Facilities.

Notification. An owner that intends to discontinue use of any facility within the public right-of-way shall notify the Town in writing of the intent to discontinue use. Such notice shall describe the facilities for which the use is to be discontinued, a date of discontinuance of use, which date shall not be less than fifteen days from the date such notice is submitted to the Town, and the method of removal and restoration. The owner may not remove, destroy or permanently disable any such facilities during said fifteen-day period without written approval of the Town. After fifteen days from the date of such notice, the owner may commence removal and disposal of such facilities as set forth in the notice, as the notice may be modified by the Town. The owner shall complete such removal and disposal within one hundred eighty days, unless additional time is requested from and granted by the Town.
Abandonment of facilities in place. Upon prior written approval of the Town, an owner may either:
1. Abandon the facilities in place, and immediately convey full title and ownership of such abandoned facilities to the Town. The only consideration for the conveyance shall be the Town's permission to abandon the facilities in place. The owner shall be responsible for all obligations and liabilities until the conveyance to the Town is completed.
2. Abandon the facilities in place but retain ownership and responsibility for all liabilities associated therewith.
If any provision of this section conflicts with any provision of a valid, effective franchise agreement between the permittee and the Town, the conflicting provision of this section shall not apply to the franchisee, and the franchisee shall instead honor the provision of the franchise agreement.

Section 24. Emergency Procedures.

Any person maintaining facilities in the public right-of-way may proceed with repairs upon existing facilities without a permit when emergency circumstances demand that the work be done immediately. The person doing the work shall apply to the Town for a permit on the first working day after such work has commenced. All emergency work shall require prior telephone notification to the Town's engineering department, the Town's police department and the appropriate fire protection agency.
If any damage occurs to an underground facility or its protective covering, the contractor or permittee responsible shall notify the facility's owner promptly. When the facility's owner receives a damage notice, the facility's owner shall promptly dispatch personnel to the damage area to investigate. If the damage results in the escape of any inflammable, toxic, or corrosive gas or liquid or endangers life, health, or property, the contractor or permittee responsible shall immediately notify the facility's owner and 911 and take immediate action to protect the public and nearby properties.

Section 25. Reimbursement of Town Costs.

The Town may make any repairs necessary to eliminate any imminent danger to the public health or safety without notice to any permittee, at the responsible permittee's expense.
For any work not performed by a permittee as directed by the Town but not constituting imminent danger to the public health or safety, the Town shall provide written notice to the permittee, ordering that the work be corrected within ten days of the date of the notice. If the work is not corrected within the ten-day period, the Town may correct the work at the permittee's expense.
Costs of any work performed by the Town pursuant to this section shall be billed to the permittee. The permittee shall also be responsible for any direct costs incurred by the Town. The permittee shall pay all such charges within thirty days of the statement date. If the permittee fails to pay such charges within the prescribed time period, the Town may, in addition to taking other collection remedies, seek reimbursement through the performance bond or letter of credit. Furthermore, the permittee may be barred from performing any work in the public right-of-way, and under no circumstances will the Town issue any further permits of any kind to said permittee, until all outstanding charges (except those outstanding charges that are honestly and reasonably disputed by the permittee and being negotiated in good faith with the Town) have been paid in full.

Section 26. Permit Revocation and Stop Work Orders.

A public right-of-way permit may be revoked or suspended by the Town for any of the following:
1. Violation of any condition of the permit or any provision of this Ordinance.
2. Violation of any other Town ordinance or regulation or state law relating to the work
3. Existence of any condition or performance of any act which, in the Town determination, constitutes or causes a condition endangering life or property.
Stop Work Orders. A stop work order may be issued by the Town to any person or persons performing or causing any work to be performed in the public right-of-way for:
1. Performing work without a permit except for emergency repairs to existing facilities as provided for in this Ordinance;
2. Performing work in violation of any provision of this Ordinance, or any other Town resolution, ordinance or regulation, or state law relating to the work;
3. Performing any act which, in the Town's determination, endangers life or property.
A suspension, revocation or stop work order shall take effect immediately upon delivery of written notice to the person performing the work or to the permittee. If neither the person performing the work nor the permittee can be located on the work site on the day of issuance of the suspension, revocation or stop work order, the suspension, revocation or stop work order shall take effect upon mailing of the written notice via first-class mail, postage prepaid, to the permittee's last known address.

Section 27. Penalties.

If any person, firm or corporation violates any of the provisions of this Ordinance, they shall be punished as provided below. Each and every day or portion thereof during which a violation is committed, continues or is permitted shall be deemed a separate offense.
The Town may impose the following monetary penalties for violation of this Ordinance:
1. For any occupancy of a travel lane or any portion thereof beyond the time periods or days set forth in the traffic control plan approved by the Town:
  1. Fifty dollars ($50.00) for each fifteen minutes, or portion thereof, for a maximum of one thousand five hundred dollars ($1,500.00) per day\
2. For commencing work without a valid permit: five hundred dollars ($500.00), plus twice the applicable permit fee.
3. For facilities installed outside of the approved alignment: ten dollars ($10.00) per linear foot. This penalty shall not be imposed if the facilities are removed and/or relocated to comply with the approved alignment.
4. For any other violation of a permit or of this Ordinance: two hundred fifty dollars ($250.00) per violation, with no maximum amount.
The penalties set forth in this section shall not be the Town's exclusive remedy for violations of this Ordinance and shall not preclude the Town from bringing a civil action to enforce any provision of a public right-of-way permit, or to collect damages or recover costs associated with any use of the public rights-of-way. Furthermore, the exercise of one penalty shall not preclude the Town from exercising any other penalty.

Section 28. Repealer.

All acts, orders, resolutions, ordinances, or parts thereof, of the Town that are inconsistent or in conflict with this Ordinance are hereby repealed to the extent only of such inconsistency or conflict, including without limitation, any maximum specific penalty contained in any acts, orders, resolutions, or ordinances for any violation thereof.

Section 29. Recording and Authentication.

Immediately upon its passage, this Ordinance shall be recorded in the Town of Deer Trail Book of Ordinances kept for that purpose, authenticated by the signatures of the Mayor and Clerk and shall be published as required by law.

Section 30. Effective Date.

This Ordinance shall become effective thirty (30) days after final publication.

Adopted and approved 13th day of September 2022.

Judd Behrens, Mayor
Town of Deer Trail, Colorado

Attest: Ali, Eldringhoff, Town Clerk