§ 32-104. Use of and/or construction in town rights-of-way.

(a)

Communication facilities or systems. Communication facilities or systems in town rights-of-way that are related in any way to the provision of communication services are excluded from this section and are instead subject to chapter 32, article III, division 3 of the Town of Windermere Code of Ordinances.

(b)

Definitions. In this section:

(1)

Construction means any activity or installation performed by any entity other than the town within the boundaries of any town right-of-way, including, but not limited to, curb cuts; driveways; excavation activities; installation of pavers, poles, conduits, wires, cables, electrical conductors, fiber optics, digital technology fixtures, manholes, sewer lines, water lines, fencing, signage and sidewalks; structures or other improvements or fixtures; and landscaping activities; and except for communication facilities or systems related in any to the provision of communications services as further defined in division 3 of this chapter.

(2)

Rights-of-way means any opened or unopened town street, roadway or alleyway or any easement or any real property owned by the town.

(c)

Activities in town rights-of-way without permits. The following construction and/or use activities are prohibited within the boundaries of all town rights-of-way unless permitted in accord with the provisions of this article:

(1)

Installation of mailboxes other than units prescribed by U.S. Postal Service Standards and Florida Department of Transportation Parking and Traffic Design Standards.

(2)

Decorative walls.

(3)

Retaining walls.

(4)

Buildings or structures of any kind.

(5)

Barriers or obstructions of any kind.

(6)

Basketball goals.

(7)

Skateboard ramps.

(8)

Recreational structures of any kind, whether temporary or permanent.

(9)

Fences.

(10)

Swimming pools.

(11)

Parking lots.

(12)

Landscaping of any kind.

(13)

Any other facility, object or item requiring a permanent foundation or which cannot be removed readily.

(14)

Any facility, object or item designed and intended for personal or private use and not for public use.

(15)

Security lights and street lights.

(16)

Driveways, new, modified or replaced.

(17)

Any work, construction activity or item which creates an obstruction, whether permanent or temporary, to the free and complete use of the right-of-way.

(18)

Trenchless construction activities.

(d)

Permits required.

(1)

Any person or entity desiring to install, place, construct or replace any improvement in a town public right-of-way shall obtain prior to commencement of any work a permit for such activity issued by the town manager or his or her designee on terms and conditions as defined below or specified as a condition of the permit.

(2)

Any such person or entity shall first obtain the written approval of, and all other necessary permits from, all appropriate town agencies, including, but not limited to, the public works department. Applications for such approval shall be made in the form prescribed by the public works department.

(3)

Fees for permits shall be determined by resolution of the town council.

(4)

No use of or construction in a public right-of-way shall be permitted if that use or construction creates an obstruction, barrier or safety hazard as defined by generally accepted engineering practices.

(5)

All requested uses of or construction in a public right-of-way shall be evaluated for the benefit of said use or construction to the general public or for whether the benefit to and convenience gained by a private property owner conflicts with the benefit to the general public for the use of the right-of-way affected.

(6)

Permits are required for all improvements in the public right-of-way which are not accepted for maintenance by the town. Such improvements are for the benefit and pleasure of the property owner.

(7)

Permits shall include acknowledgement terms established by the town attorney and shall be approved by the town manager or his or her designee.

(8)

The permit applicant shall be the owner or owners of the real property located adjacent to the affected right-of-way or a person designated by affidavit of said owner or owners.

(9)

Time limitations.

a.

In no case shall construction commence on any improvement within any public right-of-way or easement before a permit is issued. A permit issued by the town shall be valid for a period of 120 days from the date of issuance. If a period in excess of 120 days is required because of the scope of work, approval shall be obtained in advance of the issuance of the permit and the permit validation period shall reflect such extension. A permit shall not be extended more than three times or for more than one year from the date of issuance.

b.

After issuance of the permit, the permittee shall notify the town public works department a minimum of two business days prior to commencing construction. This notification will allow for scheduling of inspections. If a road closure is required, the permittee shall submit with the permit application a maintenance of traffic (MOT) plan to include all proposed road closures and an expected time duration for each closing. Road closures shall require separate approval by the public works department and a minimum of three business days prior notification before the commencement or construction. Road closures of fewer than 15 minutes shall not require notification.

(10)

It shall be the duty and responsibility of each applicant for a permit under this article to:

a.

Make a written application for permit with the public works department on such forms as the town shall prescribe. The public works director or designee shall review the application and plan and issue a decision or comments for revision. Upon recommendation of approval from the public works director, the town manager will issue permit providing all conditions of the permit application have been met and all required fees, deposits and certificates from the applicant have been received. No work shall commence until the town manager has approved the application and the applicant has paid and provided all fees, deposits and certificates required by this article.

b.

Include in the application information stating the kind, character and purpose of the proposed excavation or opening and such other information which may be reasonably required to fulfill the requirements of this article.

c.

Furnish in triplicate a detail plan with dimensions showing the location of the work to be performed under such permit. If approved by the town manager, one copy of such plan shall be returned to the applicant at the time the permit is granted.

d.

Obtain a permit for each and every project.

e.

Agree to save the town, its officers, employees and agents harmless from any and all costs, damages and liabilities which may accrue or be claimed to accrue by reason of any work performed under such permit. The acceptance of any permit under this article shall constitute such an agreement by the applicant whether such acceptance is expressed or not.

f.

Pay a permit and engineering review fee and security deposit. Developers of major subdivisions may request to pledge assurances to the town in lieu of cash or check, and the town, in the sole exercise of the town's judgment and discretion, may accept or reject such assurances.

g.

Furnish a certificate of insurance.

h.

Keep the original copy of the permit and an approved copy of the plan in the possession of the party actually doing the work, and when required, exhibit such copy to the public works director or designee, duly authorized inspectors or, in the instances of county and state roads, to the respective inspectors representing these authorities.

i.

Agree to perform the work, in accord with the permit conditions, the regulations established under this article and such further conditions as may be imposed by the public works director or designee.

(11)

Bond. A performance bond, or other financial security, in form, content and execution approved by the town attorney, may be required to protect the town in the event the specified work is incomplete and certificate of occupancy has been requested or when damages to the right-of-way or any public property have occurred and not repaired in accord with good engineering practices or when the work is nonconforming as determined by the public works department. In addition to paying the permit and inspection fees established by resolution of the town council, a performance bond or other security approved by the town attorney shall be due in the amount of $100.00 for a nonrefundable processing fee plus $2,000.00 as a retainer refundable within 30 days after completion of specified work. If the work in question exceeds a value of $2,000.00, the bond amount shall be increased by the difference plus ten percent of that difference. If said work remains incomplete after 30 days, or otherwise as approved in writing by the town manager or designee, the bond will be forfeited. Such forms shall prescribe the manner in which noncompliance with the provisions of a permit or this subchapter shall be remedied and shall provide the necessary financial assurances to remedy any noncompliance.

(Ord. No. 2018-09, § 1, 12-11-2018)