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Permits - Right Way Encroach.MEMORANDUM September 10, 2001 TO: FROM: SUBJECT: The Honorable Mayor and City Council Members Michael C. Van Milligen, City Manager Right-Of-Way Encroachments The City has been receiving an ever-increasing number of requests to approve encroachments into the public right-of-way for existing conditions, reconstruction, and new construction. These requests include fire escapes, doorways, awnings, and other similar building attachments. Nearly all of these requests are routine, and currently it is required that the City Council approve all such requests. This is time-consuming of the City staff in the preparation of City Council materials and also time-consuming of the City Council's agenda. Public Works Director Mike Koch is recommending that the City Manager be authorized to issue permits for encroachments into the public right-of-way. The permits would remain revocable, as they currently are issued by the City Council, and would still require proof of liability insurance naming the City as "additional insured" and also hold the City harmless from any claims for damages resulting from the encroachment. I concur with the recommendation and respectfully request Mayor and City Council approval. Michael C. Van Milligen ~-- MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager Michael A. Koch, Public Works Director TO: FROM: SUBJECT: CITY OF DUBUQUE, IOWA MEMORANDUM September 10, 2001 Michael C. Van Milligen, City Manager Michael A. Koch, Public Works Director Right-Of-Way Encroachments INTRODUCTION The purpose of this memo is to present for City Council consideration adoption of an ordinance which would grant the City Manager authority to issue permits for encroachments into the public right-of-way. DISCUSSION Public right-of-way, as used in this ordinance, would be any public grounds, streets, sidewalks, alleys, bridges, culverts, overpasses, underpasses, grade crossing separations and approaches, public ways, squares, and commons. The City has been receiving an ever-increasing number of requests to approve encroachments into the public right-of-way for existing conditions, reconstruction, and new construction. These requests include fire escapes, doorways, awnings, and other similar building attachments. Nearly all of these requests are routine, and currently it is required that the City Council approve all such requests. This is time- consuming of the City staff in the preparation of City Council materials and also time-consuming of the City Council's agenda. RECOMMENDATION I would recommend that the City Manager be authorized to issue permits for these encroachments into the public right-of-way. The permits would remain revocable, as they currently are issued by the City Council, and would still require proof of liability insurance naming the City as "additional insured" and also hold the City harmless from any claims for damages resulting from the encroachment. ACTION TO BE TAKEN I would recommend adoption of the enclosed ordinance authorizing the Manager to issue permits for encroachments into the public right-of-way. MAK/vjd City Prepared by: Michael A. Koch, Public Works Director Address: 50 W. 13~ Street, Dubuque, IA 52001-4864 ORDINANCE NO. 58-01 AN ORDINANCE AMENDING THE CODE OF ORDINANCES OF THE CITY OF DUBUQUE, IOWA, BY ADOPTING A NEW DIVISION 5, INCLUDING NEW SECTIONS 41-160 THROUGH 41-169, AUTHORIZING THE CITY MANAGER TO ISSUE PERMITS FOR RIGHT-OF-WAY ENCROACHMENTS NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: DIVISION 5. OTHER ENCROACHMENTS Sec. 41-160. Definition: Public Place, Or Places: Public grounds, streets, sidewalks, alleys, bridges, culverts, overpasses, underpasses, grade crossing separations and approaches, public ways, squares and commons. Sec. 41-161. Permit Required: No person, firm or corporation shall place and/or maintain any encroachment not otherwise provided for in this Article in a public place without first obtaining a permit therefor from the City Manager and complying with all applicable local, state and federal regulations, providing acceptable proof of liability insurance and paying the permit fee, all as provided in this division. Sec. 41-162. Application For Permit: Any application for a permit under this division shall be filed with the City Manager on a form provided by the City Manager. Sec. 41-163. Permit Fees: The applicant shall pay the permit fee to the city for an encroachment at the time of the filing of an application. Sec. 41-164. Compliance With Historic Preservation Ordinance: The City Manager shall not issue a permit for any encroachment which does not comply with the regulations set forth in chapter 25 of this code. Sec. 41-165. Maintenance: The permit holder for any encroachment for which a permit is issued shall: (1) Maintain the encroachment in a good state of repair; and (2) Construct the encroachment of such materials as to meet all local, state and federal regulations. Sec. 41-166. Hold Harmless: The permit holder shall enter into a hold harmless agreement with the city of Dubuque for any encroachment prior to issuance of the permit, which shall require that the permit holder pay on behalf of the city all sums which the city shall be obligated to pay by reason of any liability imposed upon the city for damages of any kind resulting from the placement or maintenance of an encroachment, whether sustained by any person or persons, caused by accident or otherwise, and shall defend at its own expense and on behalf of the city any claim against the city arising out of the placement or maintenance of the encroachment. Sec. 41-167. Insurance: (a) Prior to the issuance of a permit for an encroachment, proof of insurance shall be furnished to the City Manager by the permit applicant. (b) Coverage shall include such comprehensive public liability and property damage insurance written by an insurer licensed to do business in the state of Iowa as shall protect the city during the life of the encroachment from claims or damages, personal injury, including accidental death, as well as claims for property damages, which may arise from the existence of the encroachment in such a manner as to impose liability on the city, and the amounts of such insurance shall be as required by the City Manager. (c) Such insurance shall name the city as an additional insured. (d) The permit holder shall also maintain on file with the City Manager a certificate evidencing that the insurer will give the City Manager thirty (30) days' written notice prior to termination or cancellation of the required insurance. (e) Upon notice of cancellation or termination of insurance, or expiration of proof of insurance, the City Manager shall notify the permit holder by certified mail, that the encroachment is in violation of this division and shall be removed by the date stated in the notice. Sec. 41-168. Covenant of Permit Holder: The permit holder shall agree in writing prior to the issuance of a permit to the following: (1) The permit holder, by acceptance of a permit, covenants and agrees that the revocable permit granted does not constitute approval of the design, construction, repair or maintenance of any encroachment. (2) The permit holder, by acceptance of a permit, covenants and agrees not to assert a claim or defense against the city in the event of claim asserted for death, personal injuries and/or property damage against the permit holder arising out of or in any way connected with the design, construction, repair or maintenance of the encroachment for which a permit is issued. Sec. 41-169. Revocation: (a) A permit granted under this division shall be revocable upon ten (10) days' written notice by the City Manager to the permit holder at the convenience of the city. A permit also may be revoked or not renewed for failure to comply with the requirements of this division or any other applicable legal requirements, or for fraud, deceit, or misrepresentation in connection with an application for a permit. (b) In the event of such revocation, the City Manager shall notify the permit holder in writing of such revocation or refusal of renewal, specifying the reasons therein for such refusal. The permit holder or permit holder's successor in interest may petition the city council for a hearing on such refusal within thirty (30) days of receipt of the City Manager's letter. (c) The permit holder, within thirty (30) days of receipt of a written notice from the City Manager to remove the encroachment, shall at the permit holder's expense remove such encroachment. In the event of the permit holder's failure to do so, the city of Dubuque shall remove the encroachment at the permit holder's expense and dispose of the same. The permit holder shall agree in writing prior to the issuance of a permit to make no claim against the city or its agents for damages resulting from the removal of the encroachment. (d) Nothing in this section shall preclude the City Manager from giving immediate notice to a permit holder to remove an encroachment in the event such encroachment has been damaged or has been moved or otherwise placed to cause an immediate threat to public safety. In the event the encroachment is not removed within seven (7) days of such notification, the City Manager shall remove such encroachment as provided in subsection (c) of this section. Passed, approved and adopted this 17th Attest: Jeanne F. Schneider, City Clerk dayof September ,2001. l'errance M. Duggan, Mayor