Chapter 12.04
ENCROACHMENTS AND EXCAVATIONS

Sections:

12.04.010    Encroachment defined.

12.04.020    Encroachments restricted.

12.04.030    Permit application—Information required.

12.04.031    Emergency work.

12.04.032    Permit fee.

12.04.033    Length of time permit is valid.

12.04.050    Security deposit required—Amount.

12.04.060    Permit—Approval or denial.

12.04.070    Permits from other agencies— Responsibility to obtain.

12.04.080    Safety requirements.

12.04.090    Work to be pursued with diligence.

12.04.100    Defects—Notification to remedy—Remedy by city.

12.04.110    Defects—Cost of remedying to be deducted from deposit—Cost reimbursement when deposit is insufficient.

12.04.120    Deposit—Refund.

12.04.130    Permittee’s liability.

12.04.131    Special design concerns.

12.04.132    Newsracks.

12.04.140    Permit—Incorporation of chapter provisions.

12.04.010 Encroachment defined.

As used in this chapter, “encroachment” includes any structure or object of any kind or character placed either in, under or over any place mentioned in Section 12.04.020. (Ord. 1131 § 1 (part), 1989: prior code § 7310.1)

12.04.020 Encroachments restricted.

A. It is unlawful for any person to make any excavation or encroachment in, under or over any road or other public place, including highway, alley, street, avenue, place, sidewalk, path, walk, park, plaza, boulevard or right-of-way or any other public place in the city whether or not currently improved, except in the manner and mode provided in this chapter. Work conducted by public utility companies within exclusive public utility easements is exempt from permit requirements under the terms of this chapter.

B. For purposes of this chapter, encroachments shall not include activities regulated as parades or special events pursuant to Chapter 5.80. (Ord. 1484 § 10, 2005; Ord. 1345 § 2, 1998: Ord. 1131 § 1 (part), 1989: prior code § 7310.2)

12.04.030 Permit application—Information required.

Any person desiring to excavate, or to cause, allow or make any encroachment in, under or over any place mentioned in Section 12.04.020, shall file a written application with the public works director, hereinafter referred to as the director. The application shall be in the form prescribed by the director, and shall give the following information:

A. Location of the encroachment;

B. The reason or necessity for encroachment;

C. Estimated time to begin and complete the work or placement of an encroachment;

D. Plans and specifications covering the encroachment as may be required by the director;

E. Estimated cost of repairing damage to the road or other public property caused by the encroachment;

F. Length of time encroachment will be kept in place;

G. Name, address and phone number of the person responsible for maintaining the encroachment during construction and after construction during the lifetime of the encroachment;

H. Other information as may be required by the director. (Ord. 1131 § 1 (part), 1989: prior code § 7310.3)

12.04.031 Emergency work.

If in the course of events the owner of a previously approved encroachment finds that emergency repairs are necessary to protect the facility, or to protect the investment of the owner and/or to provide continuing service to the public, and the owner of the facility finds that the city office that would issue the encroachment permit is not open, the owner may, after reporting to the police department the nature of any encroachment into the public roadway that may affect vehicle traffic or pedestrians, after notifying the Regional Notification Center (Underground Service Alert), conduct such work as is necessary to cause the needed repairs, provided that the owner of the facility requests a permit for the work conducted on the next day that the city office that issues encroachment permits is open. Notwithstanding any other provisions of this code, no emergency work may be done if the police department determines that the proposed work would represent an unreasonable threat to the public health, welfare or safety. (Ord. 1131 § 2 (part), 1989)

12.04.032 Permit fee.

A fee for encroachment permits may be established by resolution of the council and shall be paid to the city at the time of application for issuance or renewal of any encroachment permit. Public utility companies operating under franchise agreement with the city may pay monthly for permit fees or provide a deposit in advance for the estimated volume of permit applications subject to an agreement approved by the director. (Ord. 1131 § 2 (part), 1989)

12.04.033 Length of time permit is valid.

Encroachment permits shall be issued for a specific length of time, which shall not exceed a reasonable time necessary to do the work as determined by the director. In the case of permits for encroachments which are visible in the area of the street right-of-way used for passage of the public, the encroachment may be required to be removed upon notice of the director. Encroachments installed under permit which required the maintenance of insurance naming the city as additionally insured shall be removed if the insurance is not maintained. In the absence of any prior agreement to the contrary, no cause shall be necessary to be shown or proven to modify, revise or revoke any encroachment permit or deny an original or renewal request. Utility companies will not be required to have a current permit to conduct any maintenance that does not require any cutting of concrete or asphalt and/or excavation. (Ord. 1131 § 2 (part), 1989)

12.04.050 Security deposit required—Amount.

A deposit may be required prior to the issuance of an encroachment permit involving construction in the street right-of-way. The deposit shall be either cash, cashier’s check, certified check, certificate of deposit, surety bond issued by a company authorized to do business in the state, or other form acceptable to the director. The director shall set the amount of the deposit based on potential damage to public property which may be caused by the project or which will result if the project is not completed. All deposits shall remain in force for a period of up to one year from the date of completion of the work authorized by the permit. Utility companies doing work under franchise are exempt from making a security deposit. (Ord. 1131 § 4 (part), 1989: prior code § 7310.5)

12.04.060 Permit—Approval or denial.

Upon receiving an application to excavate or to encroach at any place mentioned in Section 12.04.020, the city engineer shall either approve, conditionally approve or reject it. If the application is approved, or conditionally approved, the director shall cause the deposit, if any, to be paid into the city treasury and/or such surety bond, if any, to be deposited with the director of finance, and shall issue a written permit authorizing the encroachment. The permit shall include all the conditions required by this code and conditions set by the director. In the event the application is denied, any deposit made or bond submitted in connection therewith shall be forthwith returned to the applicant; provided, that the applicant, if dissatisfied with such rejection or with any condition attached to an approval, may appeal following the procedure set out in Chapter 1.20 of this code. (Ord. 1131 § 4 (part), 1989: prior code § 7310.6)

12.04.070 Permits from other agencies Responsibility to obtain.

It shall be the duty of any person causing, allowing, making or maintaining any encroachment in any road or other public place in the city, to procure all permits and licenses, pay all charges and fees, and give all notices necessary and incidental to the due and lawful prosecution of the work as required by agencies other than the city. No permit to excavate shall be valid until the applicant has complied with state regulations regarding notification of a Regional Notification Center (Underground Service Alert) and the receipt of an inquiry identification number. (Ord. 1131 § 4 (part), 1989: prior code § 7310.7)

12.04.080 Safety requirements.

It shall be the duty of any person making any excavation in any road or other public place in the city to place and maintain lights at each end of the excavation, and at distances as required by the director along the lines thereof, from sunset of each day to sunrise of the next day, until the excavation is entirely refilled and repaired to a safe condition to the satisfaction of the director, and such person shall safeguard the work with such barriers, signs and measures as may be necessary and proper in each case to provide for the safety of persons, animals and vehicles using such public roads or other public place; provided further, that such safety measures shall be taken in encroachments permitted under this chapter as shall be prescribed by the director and set out in the permit granted. The permittee shall be responsible to obtain any permits that may be required by the State Department of Safety and Welfare. (Ord. 1131 § 4 (part), 1989: prior code § 7310.8)

12.04.090 Work to be pursued with diligence.

After the work or project is commenced as permitted under this chapter, the same shall be pursued with due diligence from day to day until completed, and so as not to obstruct the road or other place more than is reasonably necessary. (Ord. 1131 § 4 (part), 1989: prior code § 7310.9)

12.04.100 Defects—Notification to remedy—Remedy by city.

If the encroachment is not constructed or maintained in the manner and within the conditions required by the provisions of this chapter and the permit, the director shall notify the permittee in writing, and if the defect is not remedied within the time specified in the notice, the director shall cause the defect to be remedied in the proper manner and shall restore the road or other public place to its original condition; provided, however, if the defect constitutes an immediate danger to the public health, safety or welfare, the director shall have authority to immediately remedy the defect or remove the encroachment. (Ord. 1131 § 4 (part), 1989 prior code § 7310.10)

12.04.110 Defects—Cost of remedying to be deducted from deposit—Cost reimbursement when deposit is insufficient.

Whenever it is necessary for the director to remedy any defect in any work permitted under this chapter, the cost of remedying the defect shall be deducted from the permittee’s deposit, and the balance, if any, remaining after the deduction shall be returned to the permittee in accordance with Section 12.04.050; provided, that if the deposit is insufficient to cover the cost of the work, the permittee shall be liable to reimburse the city for the cost to it of remedying the defect in excess of the amount of the deposit, which shall be due and payable upon the permittee being furnished with a written statement of the amount due. (Ord. 1131 § 4 (part), 1989: prior code § 7310.11)

12.04.120 Deposit—Refund.

Upon satisfactory completion of all the terms and conditions of an encroachment permit, the director shall issue a certificate to this effect to the director of finance. Upon receipt of such certificate and after the expiration of the time period established by the permit, the director of finance shall be authorized and directed to return the cash deposit or bond or other security posted by the permittee to the permittee in accordance with Section 12.04.050. Unless required by prior agreement or law, the amount returned will not include any interest. (Ord. 1131 § 4 (part), 1989: prior code § 7310.12)

12.04.130 Permittee’s liability.

Each permittee is solely responsible for any damage or liability occurring by reason of anything done or omitted to be done by the permittee or his or her agent, employee, servant or subcontractor, or in connection with any work, authority or jurisdiction delegated under any permit issued as a result of an application; and each permittee shall indemnify and hold harmless the city, its officers, agents, employees or servants from any and all loss and liability, including cost of defense and attorney fees, resulting from any claims made by reason of or in connection with any work done under the authority of or as a result of any permit issued under this chapter. The permittee shall maintain an insurance policy, naming the city as additionally insured and in an amount as established by the city, during the period of the construction or placement of the encroachment and after construction or placement during the life of the permit unless waived as follows. The insurance policy shall state that the carrier shall notify the city thirty days prior to cancelling the policy for any reason. Encroachments installed under franchise agreements shall not be required to provide insurance under the terms of this chapter. Encroachments built to approved city standards shall not require insurance coverage following satisfactory completion of the improvement as determined by the director and acceptance by the city. Insurance for all other encroachments may be waived by the director only with the concurrence, of the city attorney and the city administrative officer. (Ord. 1131 § 4 (part), 1989: prior code § 7310.13)

12.04.131 Special design concerns.

A. Any encroachment which does not meet established city standards for design and construction shall be subject to review by the director and the community development director.

B. Any encroachment which will limit the amount of sidewalk available for pedestrians shall further be reviewed to meet concerns for pedestrian safety and to ensure adequate area for pedestrian passage. In residential areas a minimum of four feet of sidewalk shall be clear for pedestrian passage. In areas with sidewalks subject to high pedestrian activity as determined by the director, the width of the sidewalk which may be blocked by an encroachment shall be as determined by the director.

C. Encroachments shall not be physically in contact with street furniture or street trees.

D. Encroachments shall not restrict pedestrian access to parked vehicles, to buses in bus loading zones, or to access points of abutting property.

E. Encroachments shall not be allowed which in the opinion of the director constitute a hazard to vehicles or pedestrians.

F. All encroachments which provide a public service such as newsracks or vending machines shall have plainly posted on their face the name and phone number of the party responsible for maintenance end operation. (Ord. 1131 § 5 (part), 1989)

12.04.132 Newsracks.

A. The council finds and declares that the uncontrolled placement and maintenance of newsracks in the public right-of-way creates physical danger to the traveling public and the numerous pedestrians that use the public rights of way in the city. The council finds that, in recognition of the unique architectural features and basic heritage of the city, the clutter and congestion of numerous disparate types of newsracks in the public rights-of-way is unsightly and not in keeping with the nature of the city. The council also finds that, since the use of such rights-of-way is historically associated with the sale and distribution of newspapers and publications, access to these areas for such purposes should not be unreasonably or absolutely denied. The council finds that these strong and competing interests require reasonable accommodation which can only be satisfactorily achieved through this section of the code which provides for special accommodation of newsracks.

B. Newsracks are any self-service or coin-operated box, container, storage unit or other dispenser installed, used or maintained for the sale or distribution of newspaper, news periodicals or other news publications.

C. An application for a permit for newsracks shall be made within ten business days of the placement of any newsrack in the public right-of-way

D. Application for permits for newsracks shall be made in the same manner as that of other encroachments as described in this chapter.

E. Permit fees, liability insurance, and indemnification requirements shall be the same as that required for encroachments as described in this chapter.

F. Special Location and Operational Concerns for Newsracks.

1. Placement of newsracks shall be such that they are parallel to and no more than six inches from the walls of adjacent buildings when present. Newsracks placed adjacent to the curb shall be placed parallel to the curb face and shall be a minimum of six inches and not more than twelve inches from the curb face to the back side of the newsrack. The rack shall face the sidewalk.

2. Those encroachments which will limit the amount of sidewalk available for pedestrians shall further be reviewed to meet concerns for pedestrian safety and to ensure adequate area for pedestrian passage. In residential areas a minimum of four feet of sidewalk shall be dear for pedestrian passage. In areas with sidewalks subject to high pedestrian activity as determined by the director, the width of the sidewalk which may be blocked by an encroachment shall be as determined by the director.

3. No newsrack shall be maintained opposite another newsrack.

4. No newsrack may be attached to public signs, benches, fire hydrants or other facilities in the right-of-way. Newsracks attached to private property may be done so only with written permission of the owner end occupant of the private property.

5. No newsrack shall be used for commercial advertising, signs or publicity purposes, other than to state the name of the newspaper or periodical being sold.

6. Newsracks shall be maintained in good operating condition.

7. The installation of newsracks shall meet the same design concerns as identified for other encroachments in Section 12.04.131.

8. The number of newsracks at a given location may be limited if, in the opinion of the director, they will unreasonably interfere with or obstruct the flow of pedestrian or vehicular traffic or access to parked vehicles.

9. Abandoned or inoperative newsracks must be removed from the right-of-way within thirty days. Any newsracks left over thirty days may be removed and stored for up to thirty days. The cost of removal and storage will be charged the owner in the event he or she chooses to retrieve the abandoned newsrack. Those newsracks left unclaimed will be disposed of as unclaimed property. (Ord. 1131 § 5 (part), 1989)

12.04.140 Permit—Incorporation of chapter provisions.

All terms and conditions of this chapter shall be incorporated by reference and implication into any permit issued hereunder. (Prior code § 7310.14)