Chapter 21 STREETS, SIDEWALKS AND OTHER PUBLIC PLACES*

*Cross reference(s)--City engineer, § 2-111; city attorney to institute special assessments proceedings and condemnation proceedings, § 2-195; animals, Ch. 4; horses prohibited in public parks, public sidewalks and any part of the parkway located in the center of Third Avenue in the city, § 4-28; boards, commissions and committees, Ch. 5; design review board, § 5-76 et seq.; public library board, § 5-111 et seq.; library created, § 5-114; planning commission, § 5-151 et seq.; transient advisory board on municipal transient system, § 5-176; buildings and building regulations, Ch. 6; Greenmount cemetery, § 7-16; fire prevention and protection, Ch. 8; flood protection and prevention, Ch. 9; garbage and refuse, Ch. 10; health and sanitation, Ch. 11; litter, § 11-51 et seq.; sweeping litter onto streets, alleys or sidewalks prohibited, § 11-52; junked, wrecked and abandoned property, Ch. 12; licenses and business regulations, Ch. 13; solicitors and peddlers licenses and regulations, § 13-211; regulations for peddling and soliciting on public sidewalks, § 13-219(15); local public improvements, Ch. 14; noise, Ch. 16; parks and recreation, Ch. 18; police, Ch. 19; signs and advertising, Ch. 20; subdivision, Ch. 22; traffic and vehicles, Ch. 24; utilities, Ch. 25; vegetation, Ch. 26; zoning, Ch. 27

(Code 1962, § 9-3-14)

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*Cross reference(s)--Horses prohibited in public parks, public sidewalks and any part of the parkway located in the center of Third Avenue in the city, § 4-28.

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It is hereby made the duty of the city manager whenever he, in his judgment or opinion deems it necessary or proper, to require the property owners within the corporate limits of the city to construct and lay permanent concrete sidewalks upon streets in front of their property and to require all property owners within the city to repair all sidewalks on streets in front of their property. All such sidewalks are to be constructed, laid or repaired in strict accordance with all city specifications relating thereto.

(Code 1962, § 9-1-1)

Whenever, in the judgment of the city manager, it becomes necessary or proper to construct, lay or repair any sidewalk, the city manager shall prepare, or cause to be prepared, a notice describing the sidewalk to be constructed, laid or repaired, giving the name of the street and the number of the lot and block in front of which such sidewalk is to be constructed or repaired. The notice shall specify the character or kind of sidewalks and the manner in which the same is to be constructed or repaired and requiring that such sidewalk be constructed, laid or repaired, as the case may be, by the owner of the abutting property within not less than five (5) days nor more than sixty (60) days after the service by the department of public works of the notice to such owner to so construct, lay or repair the same. The exact number of days between the five (5) days and sixty (60) days to be given in which to do the work shall depend on the kind of sidewalk ordered constructed and the character of the repairs ordered made, the number of days given to be in each case at the discretion of the city manager.

(Code 1962, § 9-1-2)

Upon the preparation by the city manager of the notice required in section 21-17 the public works department shall, without delay, give to the owner of the property in front of which any sidewalk is required to be constructed, laid or repaired, the notice in writing. Such notice shall be in substantially the following form:

TO: (Name)

You are hereby notified that that portion of the following described ________ (property or sidewalk), to wit: ________ (here describe the portion of the sidewalk needed to be constructed, laid or repaired), upon which the following described property, to wit: ________, of which you are the owner, immediately abuts, is ________ (unsafe or unfit) for the public travel because of ________ (here state defect or cause of defect or need of constructing, laying or repairing the sidewalk). And you are hereby instructed and ordered to ________ (here state whether to construct, lay or repair) such portion of the sidewalk, in accordance with this notice prepared by the city manager on the ________ day of ________, 19________, and to have such work completed on or before the ________ day of ________, 19________. If you disagree with the determination of the city manager that it is necessary that such sidewalk be constructed, laid or repaired, you may appeal such determination by filing an appeal before the city council within ten (10) days of receipt of this notice.

(Code 1962, § 9-1-3)

The notice required in section 21-17 shall be served by delivering the same to the owner or by leaving it at the house of his usual abode with some person over twenty-one (21) years of age residing therein; provided, however, that if such owner is not a resident of the city, then such notice may be served by mail by depositing such notice in the post office, addressed to the person to whom it is to be served at his place of residence, if known, and if not known, then addressed to the last known place of residence with postage prepaid.

(Code 1962, § 9-1-4)

The public works department shall make the notice requiring a sidewalk to be constructed, laid or repaired in duplicate and on the back of one (1) shall make an affidavit of service. Such notice is to be made before the city clerk or a notary public. The public works department shall file the copy of the notice on which the affidavit is contained with the city clerk.

(Code 1962, § 9-1-5)

If, after the determination of construction or repair of a sidewalk is made by the city manager, and notice is served as provided in section 21-17, such owner shall fail, neglect or refuse to construct or repair such sidewalk within the time required by the notification, the public works department shall, without delay and without any further orders from the city manager or the city council, cause the same to be done in accordance with the city manager's determination and the notification, either by day labor or by contract work. The full cost thereof shall be assessed on and against the property in front of which such sidewalk is so constructed, laid or repaired, and the full amount of such cost shall become a lien upon the property and shall at the time provided by law certified by the city clerk to the county assessor to be placed upon the proper tax roll to be collected as other taxes are collected and shall be in addition to all other taxes legally assessed against the property.

(Code 1962, § 9-1-6)

Whenever any sidewalk is constructed, laid or repaired by the public works department and the full costs thereof are assessed against the property as provided in this article, the owner of such property may pay to the finance director the full amount so assessed against the property and have the lien thereof discharged. If the amount so assessed against any such property is not paid on or before August 20 following its construction or repair, there shall be added to the amount so assessed against the property, twenty (20) percent of the total assessment to reflect the amount charged by the county for collection of such funds.

(Code 1962, § 9-1-7)

Before any sidewalk is constructed or laid within the corporate limits, either by a property owner or by the public works department or any other person, the person constructing or laying such sidewalk shall have the grade lines necessary for the proper execution of the work marked upon the ground by the city engineer or his assistants which will be done upon application being made at the office of the city engineer.

(Code 1962, § 9-1-8)

It shall be the duty of the owner, tenant and occupant of any premises abutting or adjoining any public sidewalk to remove all snow and ice from such sidewalk.

(Code 1962, § 9-4-1)

Cross reference(s)--Local public improvements, Ch. 14.

(Code 1962, § 9-4-2)

No person shall deposit or cause to be deposited in any public street, alley or roadway in the city, snow taken or removed from property privately owned or occupied, excluding snow taken or removed from public sidewalks.

(Code 1962, § 9-4-3)

It shall be unlawful to place or leave any obstruction of any kind or nature, or to dig or leave any excavation in any part of any street, alley or sidewalk of the city; provided, however, that any person may upon proper application obtain written permission from the building inspector to temporarily obstruct a street, alley or sidewalk.

(Code 1962, § 9-9-1)

(Code 1962, § 9-9-2)

*Editor's note--Ord. No. 2000-10, § 1, adopted May 2, 2000, repealed provisions formerly set out as Art. V of this chapter and enacted new provisions to read as herein set out. Former Art. V, §§ 21-66--21-75, pertained to excavations and derived from the 1962 Code, §§ 9-3-1--9-3-9, 9-3-13; Ord. No. 1987-5, § 1, adopted March 3, 1987.

Public and private uses of public rights-of-way for location of facilities employed in the provision of public services should be accommodated, in the interests of the general welfare, however, the City of Durango must insure that the primary purpose of the right-of-way, passage of pedestrian and vehicular traffic, is maintained to the greatest extent possible. This article provides principles, procedures and associated funding for the placement of structures and facilities, construction excavation encroachments and work activities within or upon any public right-of-way, and to protect the integrity of the road system. To achieve these purposes, it is necessary to require permits of permanent private users of the public rights-of-way, to establish permit procedures, and to fix and collect fees and charges. The value of other public and private installations, roadways, facilities and properties should be protected, competing uses must be reconciled, and the public safety preserved. The use of the right-of-way corridors by permanent private users is secondary to these public objectives, and the movement of traffic. This article is intended to strike a balance between the public need for efficient, safe transportation routes and the use of rights-of-way for location of facilities by public and private entities, to insure that the public safety is maintained and that public inconvenience is minimized. The objectives of this article are:

(Ord. No. 2000-10, § 1, 5-2-00)

For the purpose of this article the following words shall have the following meanings:

Access vault means any structure containing one (1) or more ducts, conduits, manholes, handhole or other such facilities in permittee's facilities.

City means the City of Durango, Colorado, a Colorado home rule municipality.

Degradation means a decrease in the useful life of the right-of-way or damage to any landscaping within the rights-of-way caused by excavation in or disturbance of the right-of-way, resulting in the need to reconstruct the surface and/or subsurface structure of such right-of-way earlier than would be required if the excavation or disturbance did not occur.

Director means the director of public works or his/her authorized representative.

Duct or conduit means a single enclosed raceway for cables, fiber optics or other wires.

Emergency means any event which may threaten public health or safety, including, but not limited to, damaged or leaking water or gas conduit systems, damaged, plugged, or leaking sewer or storm drain conduit systems, damaged underground electrical and communications facilities, or downed overhead pole structures.

Excavate means to dig into or in any way remove or penetrate any part of a right-of-way.

Facilities means, including, without limitation, any pipes, conduits, wires, cables, amplifiers, transformers, fiber optic lines, antennae, poles, ducts, and other like equipment, fixtures and appurtenances used in connection with transmitting, receiving, distributing, offering, and providing utility and other services.

Fence means any artificially constructed barrier of wood, masonry, stone, wire, metal, or any other manufactured material or combination of materials erected to enclose, partition, beautify, mark, or screen areas of land.

Infrastructure means any public facility, system, or improvement including, without limitation, water and sewer mains and appurtenances, storm drains and structures, streets and sidewalks, and public safety equipment.

Landscaping means materials, including without limitation, grass, ground cover, shrubs, vines, hedges, or trees and non-living natural materials commonly used in landscape development, as well as attendant irrigation systems.

Permit means any authorization for use of the public rights-of-way granted in accordance with the terms of this article, and the laws, policies and regulations of the city.

Permittee means the holder of a valid permit issued pursuant to this chapter.

Person means any person, firm, partnership, special, metropolitan, or general district, association, corporation, company, or organization of any kind.

Public right-of-way or right-of-way or public way means any public street, way, place, alley, sidewalk, easement, park, square, plaza, or other right-of-way dedicated to the city for public use.

"Specifications" means engineering regulations, construction specifications, and design standards adopted by the city, including, but not limited to the City of Durango Development Standards for Public Improvements and Construction Specifications.

Structure means anything constructed or erected with a fixed location below, on, or above grade, including, without limitation, foundations, fences, retaining walls, awnings, balconies, and canopies.

Surplus ducts or conduits are conduits or ducts other than those occupied by permittee or any prior permittee, or unoccupied ducts held by permittee as emergency use spares, or other unoccupied ducts that permittee reasonably expects to use within two (2) years from the date of a request for use.

Work means any labor performed on, or any use or storage of equipment or materials, including but not limited to, construction of streets and all related appurtenances, fixtures, improvements, sidewalks, driveway openings, bus shelters, bus loading pads, street lights, and traffic signal devices. It shall also mean construction, maintenance, and repair of all underground structures such as pipes, conduit, ducts, tunnels, manholes, vaults, buried cable, wire, or any other similar structure located below surface, and installation of overhead poles used for any purpose.

(Ord. No. 2000-10, § 1, 5-2-00)

The permittee's rights hereunder are subject to the police powers of the city, which include the power to adopt and enforce ordinances, including amendments to this article, necessary to the safety, health, and welfare of the public. The permittee shall comply with all applicable laws and ordinances enacted, or hereafter enacted, by the city or any other legally constituted governmental unit having lawful jurisdiction over the subject matter hereof. The city reserves the right to exercise its police powers, notwithstanding anything in this article and the permit to the contrary. Any conflict between the provisions of this article or the permit and any other present or future lawful exercise of the city's police powers shall be resolved in favor of the latter.

(Ord. No. 2000-10, § 1, 5-2-00)

(Ord. No. 2000-10, § 1, 5-2-00)

An applicant for a permit to allow construction, excavation, or work in the public right-of-way under this section shall:

Applicants shall update any new information on permit applications within ten (10) days after any 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 fee. Applicants must agree among themselves as to the portion each shall pay.

(Ord. No. 2000-10, § 1, 5-2-00)

Before a permit is issued pursuant to this article, the applicant shall pay a permit fee to the city, which shall be determined in accordance with a fee schedule adopted by resolution of the city council. Fees will be reasonably related to the costs inherent in managing the public rights-of-way. As used in this article, these costs include, but are not necessarily limited to, the costs of permitting rights-of-way occupants, verifying rights-of-way occupation, mapping rights-of-way occupations, inspecting job sites and rights-of-way restorations, administering this chapter, and costs relating to the degradation of the rights-of-way, (i.e., the cost to achieve a level of restoration as determined by the city at the time the permit is issued). The portion of the permit fee relating to degradation costs may be reduced by the city in cases where the applicant demonstrates to the satisfaction of the director or his designee that the excavation proposed will be used by two or more entities, legally and financially unrelated, for the installation, maintenance or repair of facilities.

(Ord. No. 2000-10, § 1, 5-2-00)

[Reserved for future use]

(Ord. No. 2000-10, § 1, 5-2-00)

Prior to the granting of any permit, the permittee shall file with the city an insurance policy or certificate in a form satisfactory to the city reflecting coverage as follows:

City departments shall be relieved of the obligation of submitting a certificate of insurance. Whenever any person has filed with the city evidence of insurance as required, any additional or subsequent permit holder in the employ of said initial person may, at the discretion of the director or his designee, be excused from depositing or filing any additional evidence of insurance if such employee is fully covered by the permittee's insurance policy.

Each permittee shall construct, maintain, and operate its facilities in a manner which provides protection against injury or damage to persons or property. The permittee, for itself and its related entities, agents, employees, subcontractors, and the agents and employees of said subcontractors, shall save the city harmless, defend, and indemnify the city, 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 city for all its reasonable expenses, as incurred, arising out of the installation, maintenance, operation or any other work or activity in the public right-of-way or by the permittee related to its use thereof, including, but not limited to, the actions of the permittee, its employees, agents, contractors, related entities, successors and assigns, or the securing of and the exercise by the permittee of the permit 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 article or other applicable law.

The terms of each contract awarded by the permittee for activities pursuant to a permit shall contain indemnity provisions requiring the contractor to indemnify the city to the same extent as described above. The permittee shall have the right to defend the city 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, the city elects to defend itself with regard to such matters, the permittee shall pay all actual expenses incurred by the city related to its defense. In the event the city institutes litigation against the permittee for a breach of the permit or for an interpretation of this article, and the city is the prevailing party, the permittee shall reimburse the city for all costs related hereto, including reasonable attorney's fees. The permittee shall not be obligated to indemnify the city for claims or demands to the extent that they are due solely to the gross negligence, or any intentional and/or willful acts of the city or any of its officers, employees, or agents. In the event the permittee is a public entity, the indemnification requirements of this section shall be subject to the provisions of the Colorado Governmental Immunity Act.

(Ord. No. 2000-10, § 1, 5-2-00)

Before any permit required by this article shall be issued to an applicant, the applicant shall file with the director a bond or letter of credit in favor of the city in an amount equal to the total cost of construction, including labor and materials, or five thousand dollars ($5,000.00), whichever is greater. The bond or letter of credit shall be executed by the applicant, as principal, and by at least one (1) surety upon whom service of process may be had in the state. The bond or letter of credit shall be conditioned upon the applicant fully complying with all provisions of city ordinances, rules and regulations, and upon payment of all judgments and costs rendered against the applicant for any violation of city ordinances or state statutes that may be recovered against the applicant by any person for damages arising out of any negligent or wrongful acts of the applicant in the performance of work done pursuant to the permit. Action on the bond or letter of credit may be brought by any person so aggrieved as beneficiary. The bond or letter of credit must be approved by the director as to form and as to the responsibility of the surety thereon prior to the issuance of the permit. The city may waive the requirements of any such bond or letter of credit or may permit the applicant to post a bond without surety thereon, upon finding that the applicant has financial stability and assets located in the state to satisfy any claims intended to be protected by the security required by this section.

A letter of responsibility will be accepted in lieu of a performance bond or letter of credit from all public utilities and all franchised entities.

The performance bond, letter of credit or letter of responsibility shall remain in force and effect for a minimum of three (3) years after completion and acceptance of the street cut, excavation or lane closure.

(Ord. No. 2000-10, § 1, 5-2-00)

Any warranty made hereunder shall serve as security for the performance of work necessary to repair the public right-of-way, if the permittee fails to make the necessary repairs or to complete the work under the permit. The permittee, by acceptance of the permit, expressly warrants and guarantees complete performance of the work in a manner acceptable to the city, warrants and guarantees all work done for a period of one (1) year after the date of acceptance, and agrees to maintain the work upon demand and to make all necessary repairs during the one-year period. This warranty shall include all repairs and actions needed as a result of defects in workmanship, settling of fills or excavations, unauthorized deviations from the approved plans and specifications, failure to provide approved traffic control measures, failure to clean up during and after performance of the work, or any other violation of this article or the ordinances of the city. The warranty period shall run from the date of the city's acceptance of the work. If repairs are required during the one-year warranty period, those repairs need only be warranted until the end of the original warranty period starting with the date of initial acceptance of the work. At any time prior to completion of the one-year warranty period, the city may notify the permittee of any needed repairs. Such repairs shall be completed within twenty-four (24) hours if the defects are determined by the city to be an imminent danger to the public health, safety and welfare. Nonemergency repairs shall be completed within thirty (30) calendar days after notice.

(Ord. No. 2000-10, § 1, 5-2-00)

The permittee shall be required to make written request for and obtain inspection from the city, as required pursuant to the terms of the permit.

(Ord. No. 2000-10, § 1, 5-2-00)

The permittee shall maintain a safe work area, free of safety hazards or nuisance conditions. The city may make any repair necessary to eliminate any hazards or nuisances or work not performed as directed. Any such work performed by the city shall be completed and billed to the permittee at overtime rates. The permittee shall pay all such charges within thirty (30) days of the statement date. If the permittee fails to pay such charges within the prescribed time period, the city may, in addition to taking other collection remedies, seek reimbursement through the performance bond or letter of credit. Furthermore, the permittee shall be barred from performing any work in the public right-of-way, and under no circumstances will the city issue any further permits of any kind to said permittee, until all outstanding charges have been paid in full.

(Ord. No. 2000-10, § 1, 5-2-00)

All work covered by the permit shall be completed by the completion date stated on the application. Dates may be changed by written notice, twenty-four (24) hours in advance. If not changed, permit shall become void after the date designated on the permit. No refund will be made. No more than three (3) date of completion changes will be allowed for any permit unless approved by the director. Performance bonds, letters of credit or letters of responsibility deposited as a performance/warranty guarantee for individual permits will be returned after voiding of the permit, with administrative and any other city costs deducted.

(Ord. No. 2000-10, § 1, 5-2-00)

Traffic control procedures shall be implemented by the permittee in accordance with the requirements of the permit and in conformity with the City of Durango Design Standards for Public Improvements and Construction Specifications.

(Ord. No. 2000-10, § 1, 5-2-00)