Chapter 11.01 ENCROACHMENTS WITHIN PUBLIC RIGHTS-OF-WAY

A. “Encroachment” means going upon, over or under a public right-of-way or easement or an area adjacent to a public right-of-way or easement or using a public right-of-way or easement or an area adjacent to a public right-of-way or easement in such a manner as to prevent, obstruct or interfere with intended use of the public right-of-way or easement or a modification of its mode of use, and shall include excavation and disturbance, installation, construction, placement, erection and maintenance of any physical improvement (permanent or temporary) or network within, upon, over or under the public right-of-way or easement, or using any public right-of-way, or using any natural watercourse in any manner other than its intended use.

B. “Encroachment permit” means a permit issued by the city engineer for the purpose of encroaching within public rights-of-way or natural watercourses.

C. “Enforcing authority” means the city engineer or an authorized agent.

D. “Permittee” means any person, firm, corporation, public utility or public agency desiring to obtain or having obtained an encroachment permit as defined in this section.

E. “Public agency” means any city, county, public corporation or public district established through due process of law.

F. “Public improvements” includes street improvements, storm drainage, sewer, water, landscaping and other related improvements which the city will maintain upon completion.

G. “Public street” means any street which has been accepted by the city for public use.

H. “Public utility” means private corporations authorized by law to establish and/or maintain any works or facilities in, under or over any public street. This chapter shall not limit the powers and duties vested by law in the Public Utilities Commission of the state, and in the event of any conflict, the Public Utilities Commission rules shall govern.

I. “Public right-of-way” shall have the same meaning given that term by California Public Utilities Code Section 5830(o) and land which by deed, conveyance, agreement, easement, dedication, usage or process of law is reserved for and dedicated to the general public and maintained under public authority or by others and located within streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, pedestrian walkways, storm drainage and similar public property.

J. “Site development permit” means a permit for the construction of public improvements within public right-of-way for which an encroachment permit or permits would be required.

K. “Specification” means those specifications approved by the city engineer. (Ord. 821 § 1(part), 2009).

11.01.020 Generally.

A. The standards and procedures provided in this chapter are adopted for the protection and preservation of public property; the proper control and inspection of the construction of public improvements within public rights-of-way for which the city will provide future maintenance; and for the general health, welfare and safety of the public.

B. It is the city’s policy to prohibit any open excavation within the paved sections of any public street classified as an arterial street as shown on the city’s “Pavement Management Plan,” unless it can be demonstrated to the satisfaction of the city engineer that no other feasible alternatives are available.

C. No open excavations are permitted on repaved public streets within five years from the date of final completion of the street repaving, except as explicitly exempted in Section 11.01.040.

D. No building permit for any construction for which an encroachment permit is also required will be issued until the encroachment permit has been obtained. (Ord. 821 § 1(part), 2009).

11.01.030 Permit required.

A permit issued by the city engineer or an authorized agent is required for any encroachment as defined by this chapter unless explicitly exempted by Section 11.01.040. (Ord. 821 § 1(part), 2009).

11.01.040 Exemptions from permit requirements.

The provisions of this chapter shall not apply to officers or employees of the city acting in the discharge of their official duties, or any work being performed by any person pursuant to a contract with the city. The provisions of this chapter shall not prevent any public utility from maintaining any facility lawfully on or under any public street, or from making emergency excavations as may be necessary for the preservation of life or property. If an urgent necessity arises during the hours the offices of the city are closed, the person making an emergency use or encroachment on a public street must notify the city police department immediately and must apply for a permit the first day the offices of the city are again opened. This requirement shall also apply to any public agency requiring any emergency use of encroachment. (Ord. 821 § 1(part), 2009).

11.01.050 Prohibited encroachments.

The following encroachments are specifically prohibited, and no applications shall be accepted nor permits issued therefor:

A. Construction or maintenance of a loading dock on or in a public right-of-way;

B. Installation or maintenance of underground tanks, vaults or elevators, except that underground vaults may be permitted as a part of facilities owned by public utilities and public agencies;

C. Construction or placement of any fill, wall, pipe, column, pole, fence, tree, shrub or other thing which would obstruct and reduce the capacity of any watercourse to carry storm water. (Ord. 821 § 1(part), 2009).

11.01.060 Permit application and procedures.

A. General. Application for encroachment permits may be obtained at the office of the city engineer. Permit application forms and processing procedures shall be as established by the city engineer.

B. Plans. The city engineer may require such plans and details as deemed necessary to determine the exact location, nature, dimensions, duration and purpose of the desired encroachment. Improvement plans prepared by or under the direction of a registered civil engineer may be required by the city engineer when deemed necessary. The form and content of all plans shall be in accordance with standards approved by the city engineer.

C. Documents. When required by the city engineer, the permittee shall provide detailed engineering calculations for which the design of any public improvements are based.

D. Consent of Public Agencies, Utilities, or Adjacent Property Owners. The applicant shall be responsible for securing the consent of any other public agencies which may be required or for permission from adjacent property owners for construction outside of the permittee’s property boundary. Evidence of any required consents in a form satisfactory to the city engineer shall be submitted with the permit application. The applicant shall be responsible for coordinating the work with the city and other public agencies as required. (Ord. 821 § 1(part), 2009).

11.01.070 Action by city engineer.

A. Approval. Upon finding the requested permit conforms to the provisions of this chapter and other applicable provisions of the CMC, the city engineer or an authorized agent may issue the permit.

B. Denial. If the city engineer finds that the requested permit is in conflict with any provisions of this chapter or any other applicable provisions of the CMC, the city engineer or an authorized agent shall deny the permit. (Ord. 821 § 1(part), 2009).

11.01.080 Conditions of permit approval.

The city engineer, in issuing an encroachment permit, may impose reasonable requirements or conditions upon the use of the permit as may be necessary to ensure the adequate and safe use of the public right-of-way and as may be necessary to ensure public property is restored to a condition equal to or better than that which existed prior to the encroachment. When existing paved streets are permitted to be open cut, the permittee may be required to seal coat or overlay with asphalt concrete a section of roadway each side of the excavation. The limits of seal coating or overlay shall be as approved by the city engineer and as is sufficient to ensure the excavated area visually blends into the existing street area, maintains long-term structural stability, and provides a smooth riding surface. (Ord. 821 § 1(part), 2009).

11.01.090 Appeal of the city engineer’s action.

A. If any applicant is dissatisfied with decisions of the city engineer in respect to the conditions of approval, they may appeal such decision to the city council. The appeal shall be in writing and filed with the city clerk within ten calendar days from the date of the decision by the city engineer and shall set forth the basis of the appeal.

B. The city engineer shall schedule the appeal for consideration by the city council at the earliest possible and feasible regular city council meeting.

C. The city council may modify, delete, or add to any of the conditions set forth by the city engineer; provided the council’s action is consistent with the provisions and spirit of this chapter and the general welfare and safety of the public. (Ord. 821 § 1(part), 2009).

11.01.100 Construction specifications.

All public improvements shall be constructed in accordance with City of Cotati, Standard Details and Specifications, latest edition (city standards). Other public improvements not described in the city standards shall be constructed in accordance with the latest edition of the State of California Standard Specifications (Caltrans). Traffic control plans shall be in accordance with the California Manual on Uniform Traffic Control Devices (MUTCD), latest edition. The city engineer may establish other such standards and specifications necessary for the proper construction, safety requirements, use and maintenance of encroachments. (Ord. 821 § 1(part), 2009).

11.01.110 Inspection.

In general, inspection procedures and requirements shall be as established by the city engineer. Unless specifically exempted by Section 11.01.040, no encroachment work shall take place without inspection by the city engineer or an authorized agent. Inspections by the city engineer must be requested at least twenty-four hours (excluding weekends, holidays or other city non-working days) in advance of the work to be performed. No work shall be performed on weekends, holidays or other city non-working days without prior authorization of the city engineer. (Ord. 821 § 1(part), 2009).

11.01.120 Permit term.

The term of the permit shall be as set forth in the approved permit. A permit for a continuing use or for maintaining an encroachment may be granted for a period not to exceed one year from the date of issuance. The city engineer may terminate a continuing permit by written order mailed thirty days prior to the date of termination. The permit term may be renewed or extended at the discretion of the city engineer, and may include additional fees, deposits, and other items necessary to process and administer the permit. (Ord. 821 § 1(part), 2009).

11.01.130 Commencement of work.

The permittee shall begin the work or use authorized by a permit issued pursuant to this chapter within ninety days from the date of issuance unless a different period is stated in the permit, or an extension of time is granted by the city engineer. If the work or use is not begun accordingly, the permit shall become void. (Ord. 821 § 1(part), 2009).

11.01.140 Completion of work.

The permittee must complete the work or use authorized by a permit issued pursuant to this chapter within the time specified in the permit. If at any time the city engineer finds that the delay in the prosecution or completion of the work or use authorized is due to lack of diligence on the part of the permittee, the permit may be revoked as provided for in Section 11.01.150. (Ord. 821 § 1(part), 2009).

11.01.150 Revocation of permit.

A. Any encroachment permit may be revoked at any time at the option of the city engineer, whenever:

1. It appears to him that the continuing allowance of the encroachment, whether because of changed conditions or otherwise, interferes with full, adequate or safe public use of the right-of-way involved; or

2. The permittee fails to comply with or violates any city ordinance, city standards, safety regulations, or any condition of the issuance of the permit.

B. Upon revocation of the permit, the permittee shall immediately restore the public right-of-way to a condition as required by the city engineer. If the restoration is not completed within the time specified by the city engineer, the city may take any and all necessary action so required to restore the right-of-way. Any and all costs incurred by the city for enforcement of this section shall be at the expense of the permittee. Cost incurred by the city will be recovered from any deposits or bonds posted by the permittee, and if necessary, by legal action. (Ord. 821 § 1(part), 2009).

11.01.160 Display of permit.

A. The permittee shall keep any permit issued pursuant to this chapter at the site of the work, or in the cab of a vehicle when movement on a public street is involved. The permit shall be shown to any authorized representative of the city engineer or law enforcement officer on demand.

B. A permit issued for continued use or maintenance of an encroachment may be kept at the place of business of the permittee or otherwise safeguarded during the term of validity but shall be made available to an authorized representative of the city engineer or law enforcement officer no later than forty-eight hours after demand is made. (Ord. 821 § 1(part), 2009).

11.01.170 Encroachment fees.

A. General. Prior to the issuance of a permit, the applicant shall pay all applicable fees, as adopted annually by the city council.

B. Minor Nonconstruction Encroachments. For the purposes of determining encroachment fees, minor nonconstruction encroachments shall be work that is short in cumulative duration, does not require traffic control, does not physically alter the public right-of-way in any manner, and the total extent of the work in the public right-of-way is limited to a small area.

C. Minor Construction Encroachments. For the purposes of determining encroachment fees, minor construction encroachments shall be work that is short in cumulative duration, does not significantly impact traffic, and the total extent of the work in the public right-of-way is limited to a small area.

D. Major Encroachments. For the purposes of determining encroachment fees, major encroachments shall be work that is long in cumulative duration, significantly impacts traffic, or the total extent of work in the public right-of-way is extensive.

E. Determination of the class of encroachment permit shall be at the sole discretion of the city engineer.

F. Repair of Public Right-of-Way. Fees and deposits for encroachment permits to repair, replace, or enhance features within the public right-of-way may be waived at the sole discretion of the city engineer, provided it conforms to the following criteria:

1. Waivers shall only be granted for minor projects not otherwise subject to city permits; and

2. The work must be for the primary purpose of repairing, replacing, or enhancing public features, including but not limited to repair of sidewalks, repair of curb and gutter, or replanting landscape strips. (Ord. 828 § 1, 2010: Ord. 821 § 1(part), 2009).

11.01.180 Required bonds and/or deposits.

A. Prior to issuance of a permit for construction, maintenance, or repair of features in the public right-of-way, the permittee shall deposit with the city cash, a certified or cashier’s check, or an approved surety bond in a sum to be fixed by the city engineer as sufficient to reimburse the city for costs of restoring the public right-of-way to its former condition. The minimum deposit shall be five hundred dollars or an amount equal to the approved estimated cost of construction, whichever is greater.

B. The city engineer shall determine the most appropriate type of surety to be provided by the permit applicant. Any surety deposit required by the city engineer pursuant to this chapter shall be filed with him and shall be payable to the city. The bond or cash deposit will be released ninety days from the date of satisfactory completion of all work authorized and all conditions of the permit are met.

C. Cash deposits or bonds will not be required of any public utility (defined as a city or state franchisee) or public agency which is authorized by law to establish or maintain any works or facilities in, under or over any public street or right-of-way. (Ord. 828 § 2, 2010: Ord. 821 § 1(part), 2009).

11.01.190 Temporary street closures.

Except when a separate ordinance or resolution must be adopted by the city council, including but not limited to street closures in accordance with California Vehicle Code Section 21101, an encroachment permit is required for temporary street closures. If a permit is required, the permit application shall be applied for at least two weeks in advance of the date of the requested street closure. The request will be reviewed by the city engineer for its effect upon traffic and public safety. The permit must be approved by the city engineer. The city engineer shall notify the city manager, fire district, ambulance services, and the police department of the proposed closure. (Ord. 821 § 1(part), 2009).

11.01.200 Limited operations streets.

The city engineer may restrict the encroachment to specific hours in order to provide for the proper flow of traffic during critical periods of the day. (Ord. 821 § 1(part), 2009).

11.01.210 Excavation of paved streets.

No excavations shall be permitted within the paved area of public streets unless the applicant can prove to the satisfaction of the city engineer that the following conditions exist:

A. Boring of the utility is not feasible; and

B. No reasonable alternate utility alignment is available outside the paved street area; and

C. The cut area and an adjacent area shall be resurfaced as approved by the city engineer. The limits of resurfacing shall be as determined by the city engineer to ensure the excavated area blends visually and maintains structural stability with the surrounding area. The applicant shall be responsible for the replacement of any and all obliterated, removed, or destroyed pavement markings or traffic devices; and

D. Excavations within arterial streets are prohibited, per Section 11.01.020. (Ord. 821 § 1(part), 2009).

11.01.220 Permittee liability.

The permittee shall agree to hold the city, its officers, and employees harmless from any and all liability, claims, suits or actions for any and all damages alleged to have been suffered by any person or property by reason of the permittee’s installation, operation, maintenance or removal of the encroachment. Notwithstanding the foregoing, to the extent such agreement is a “construction contract” as defined by California Code of Civil Procedure Section 2783, as may be amended from time to time, such duties of permittee to indemnify shall not apply when to do so would be prohibited by California Government Code Section 2782. (Ord. 821 § 1(part), 2009).

11.01.230 Acceptance of permit by applicant.

Acceptance by the applicant of the permit shall be conclusive evidence of the reasonableness of the terms imposed and shall constitute a waiver of any right to legislative determination thereof. (Ord. 821 § 1(part), 2009).

11.01.240 Nonassignment of permit.

Permits shall be issued only to the person making application and may not be assigned to another person by the permittee. If any permittee assigns the permit to another, the permit will be revoked. (Ord. 821 § 1(part), 2009).

11.01.250 Changes in permit and work.

No changes may be made in the location, dimensions, character, or duration of the encroachment or use as granted by the permit except upon written authorization of the city engineer. (Ord. 821 § 1(part), 2009).

11.01.260 Relocation of encroachment.

A. If any future construction, reconstruction or maintenance work by the city on the right-of-way necessitates the relocation, removal or abandonment of an encroachment, the permittee shall relocate, remove or abandon the encroachment at the permittee’s sole expense.

B. When relocation is required, the city engineer shall make written demand of the permittee that the encroachment be relocated within the right-of-way to a satisfactory location provided by the city engineer, and shall designate a reasonable time for such relocation or removal. In determining what is a reasonable time under this section, the city engineer shall take into consideration the nature of the encroachment, the urgency of the need for its removal, the cost of its removal, the difficulty of its removal, the value of the property to the owner, and other facts peculiar to the particular situation. If the permittee fails to comply with such instructions, the city may relocate or remove the encroachment at the expense of the permittee.

C. The provisions of this section shall apply to all permittees, including public agencies and public utilities having authority to occupy public rights-of-way pursuant to a franchise or an express provision of state statute, unless in conflict with a franchise agreement with the city, or in conflict with a state statute. (Ord. 821 § 1(part), 2009).