Chapter 12.04 ENCROACHMENTS

As used in this chapter, the following words and phrases shall have the meanings given:
A. "Applicant" means both the person applying for an encroachment or excavation permit and the person owning the facility or installation for which the encroachment or excavation will be made.
B. "Director" means the director of public works for the city or his or her designee.
C. "Encroach" or "encroachment" means going over, upon, or under, or using a right-of-way in such a manner as to prevent, obstruct, or interfere with its normal use as a vehicular and pedestrian way, or to impair safe sight distances for the operation of motor vehicles. "Encroachment" includes any excavation within a right-of-way.
D. "Excavation" means any cutting or trenching in or under the surface of any public right-of-way for the installation, repair, replacement or removal of any pipe, conduit, duct, tunnel, utility pole, or any other facility or installation, or for any other reason.
E. "Excusable delay" means delay caused by circumstances beyond the control of the applicant or permittee and which could not have been avoided by the exercise of reasonable care, prudence, foresight, and diligence, such as acts of God, war, insurrection, civil disorder, fire, floods, epidemics, or strike.
F. "Permittee" means both the person receiving an encroachment or excavation permit and the person owning the facility or installation for which the encroachment or excavation will be made.
G. "Public right-of-way" or "right-of-way" means land which by deed, conveyance, agreement, easement, dedication, usage or process of law is reserved for and dedicated to the general public for street, highway, alley, public utility, storm drainage, water, sanitary sewer or pedestrian walkway purposes. (Ord. 875 § 1 (part), 2003).

It is unlawful for any person to encroach or cause to be made any encroachment, of any nature whatever within, upon, over, or under the surface of any right-of-way without having first obtained from the director a written encroachment permit in full compliance with this chapter. Actions which comprise an encroachment include making any alteration of any nature; constructing, maintaining, or leaving any obstruction or impediment of any nature; removing, cutting, or trimming trees; setting a fire; excavating; placing any pipeline, conduit, or other fixture; moving over or causing to be moved over the surface of any right-of-way or over any bridge, viaduct or other structure maintained by the city any vehicle or combination of vehicles or other object of dimension or weight prohibited by law or having other characteristics capable of damaging the right-of-way; and placing any structure, wall, culvert, or embankment. (Ord. 875 § 1 (part), 2003).

The prohibitions contained in this article shall not apply to the following:
A. To any person encroaching or causing an encroachment on a public right-of-way as may be necessary for the preservation of life or property when an urgent necessity arises. The person making an emergency encroachment on a public right-of-way shall immediately notify the director or the police department and apply for and obtain an encroachment permit as soon as practicable;
B. To officers or employees of the city acting in the discharge of their official duties;
C. To any persons acting in a manner expressly authorized by a street closure permit issued under Chapter 12.24; and
D. To solid waste collection containers presented for collection as required by and in conformance with Chapter 13.08. (Ord. 875 § 1 (part), 2003)..

A. Application for an encroachment permit shall be made on a form provided by the director. The application shall state the name and residence or business address of the applicant; the location, type, and purpose of the proposed encroachment; and, if requested, a drawing and other information showing the location and extent of the encroachment.
B. If the encroachment includes an excavation, the application shall also provide the following information:
1. The location and approximate area of the excavation, including its approximate length and width;
2. If the excavation is in a street, whether it is parallel or transverse to the direction of the travel lanes;
3. The purpose of the excavation; and
4. A plan showing the location of the proposed excavation, its dimensions, and any other details the director may require.
C. The director may establish different requirements for blanket permits issued under Section 12.04.100 of this chapter. (Ord. 875 § 1 (part), 2003).

A. At the time the permit is issued, the applicant shall pay a nonrefundable inspection fee in an amount established by resolution of the city council to process the application, provide requisite inspections and back-fill material testing services, and to maintain an inventory or database of facilities that are installed, repaired or removed during the work for which the permit is issued. The director is authorized to reduce or waive the inspection fee if the director determines the fee to be inappropriate based on the nature of the work.
B. No fee or requirement authorized or imposed by this chapter shall be construed to affect or alter in any way the obligation of utility service providers with facilities installed in the public right-of-way to relocate the facilities at no cost to the city when that relocation is required by the city to accommodate a proper governmental use of the public right-of-way. (Ord. 875 § 1 (part), 2003).

A. Before the encroachment permit is issued, the applicant shall post with the director security approved as to type and form by the city attorney and in the amount stated below, to guarantee the faithful and proper performance of the work:
1. One hundred percent of the total estimated cost of the improvement or act to be performed conditioned upon the faithful performance of the work or act;
2. One hundred percent of the total estimated cost of the improvement or act to be performed securing payment to the contractor, the subcontractor, and to persons furnishing labor, materials, or equipment to them for the improvement or the performance of the required act, if appropriate; and
3. The amount determined to be necessary to guarantee or warrant the work for a period of one year following completion or acceptance against any defective work or labor done or defective materials furnished.
An additional amount may be included as necessary to cover the cost and reasonable expenses and fees, including reasonable attorney’s fees, which any be incurred by the city in enforcing the obligation secured. The security shall also secure the faithful performance of any changes or alterations in the work to the extent that such changes or alterations do not exceed ten percent of the original estimated cost of the improvement.
B. The director may waive or reduce the amount of the required security if the applicant provides satisfactory evidence of financial ability in proportion to the nature and scope of the work to be performed. (Ord. 875 § 1 (part), 2003).

A. Before the encroachment permit is issued, the applicant shall file with the city a certificate of insurance, properly executed and showing that the applicant has in effect general liability, automobile, and worker’s compensation insurance, as well as the necessary endorsements specified by the city, in the amounts as determined by the director to be appropriate for the work to be performed.
B. The director may waive, reduce, or modify the type or amount of insurance required or the endorsements required, if the applicant shows satisfactory evidence of self-insurance or as otherwise appropriate for the nature and scope of the work to be performed. (Ord. 875 § 1 (part), 2003)..

A. Upon receipt of a complete application, payment of the fee, and required security and insurance documents in compliance with all of the requirements of this chapter, the director shall issue the encroachment permit, subject to whatever conditions the director, in his or her professional judgment, determines to be necessary or convenient to protect the public health, safety and welfare, and for the protection of the city, during the term of the work authorized by the permit.
B. The director shall deny a permit to any person who has failed to comply with any provision of this chapter in connection with the encroachment permit.
C. An encroachment permit shall be void unless the proposed work is commenced within ten days from the date of issuance of the permit and the work is diligently completed, unless the work was subject to excusable delay or prior arrangements are made with the director.
D. The permittee shall notify the director not less than forty-eight hours prior to commencement of work under the permit.
E. Encroachment work shall be confined to the locations and work described in the permit and shown on the plans filed with the director. If circumstances appearing after the encroachment is commenced make it impossible to comply with the permit, the director may grant a waiver to take the circumstances into account.
F. No encroachment permit shall be transferable.
G. Except in the case of an emergency, no work shall be done at any time other than between the hours of eight a.m. and five p.m. from Monday through Friday, unless specified otherwise on the permit.
H. The director may issue blanket permits to any person to make excavations for underground service connections, for the location and repair of breaks or malfunctions in underground conduits or pipes, or for emergency purposes. Blanket permits shall be issued on a yearly basis only, and shall authorize only excavations referred to in this subsection. Except as specifically provided otherwise in this chapter, excavations authorized by this subsection shall be subject to all fees, limitations, and other requirements of this chapter. (Ord. 933 § 2, 2008; Ord. 875 § 1 (part), 2003).

The denial or revocation of an encroachment permit by the director may be appealed by the applicant or permit holder to the city council. The appeal must be filed in writing with the city clerk not later than the fifteenth day after the date notice of the director’s decision is mailed to the applicant or permit holder. On receipt of an appeal, the city clerk shall set the matter for hearing occurring at least fifteen days after receipt of the appeal. Notice of the hearing shall be mailed to the applicant or permit holder, at least ten days before the hearing. On appeal, the city council may hear and determine the matter as if it were an original application. The city council’s determination of the matter shall be final. (Ord. 933 § 3, 2008).

A. The permittee shall perform all work in compliance with all current federal, state, and local safety regulations and requirements applicable to the work being performed under the permit.
B. The permittee shall perform all work in compliance with the encroachment and excavation standards and requirements established and published from time to time by the director, including standards and requirements for repaving, compacting, back-filling and pavement restoration. The standards and requirements may impose different requirements for different excavations, taking into consideration relevant factors, such as (i) the location, type and extent of excavation performed, (ii) the condition of the surface being excavated, (iii) the period of time elapsed since the construction or most recent resurfacing of the surface being excavated, and (iv) street classifications. (Ord. 875 § 1 (part), 2003).

A. No trench shall be opened in any right-of-way for the purpose of laying pipes, conduits or ducts more than three hundred feet, or lesser distance as specified in the permit, in advance of the pipe, conduit or ducts being placed in the trench, without the prior written consent of the director.
B. Whenever any caving occurs in the side walls of any excavations, the pavements above such caving shall be cut away and fully restored and repaved at the expense of the permittee. In no case shall any void under any paved or improved surface be filled by side or lateral tamping. (Ord. 875 § 1 (part), 2003).

If the pavement or the surface of the public right-of-way over any excavation should become depressed or broken at any time within one year after the excavation has been completed and before resurfacing of the right-of-way by the city, natural wear of the surface excepted, the permittee who performed the excavation work shall, upon written notice from the director, immediately inspect the depressed or broken area over the excavation to ascertain the cause of the failure. The permittee shall make repairs to the installation or back-fill and have the pavement restored as specified by the director, within such time period as may be specified by the director. Additional inspection permit fees may be imposed as appropriate. If, after giving the permittee twenty-four hours notice, the pavement is not satisfactorily restored within the time as specified by the director, excusable delay excepted, the director may cause the work to be done. The cost of the work done by or at the direction of the city, including any inspection costs and administrative overhead incurred by city, shall be charged to the permittee. After the cost is paid to city, the city shall be responsible for any future repairs of that portion of pavement over the excavation. (Ord. 875 § 1 (part), 2003).

If any part of the work authorized by an encroachment or excavation permit is not completed within the time required, excusable delay excepted, the director may notify in writing the permittee performing the work to complete the work within forty-eight hours, legal holidays excepted. If the work is not completed within this time period, the director shall have the authority to perform all or a portion of the work, including restoration of the work area to a safe and passable condition. The cost of the work, including any inspection costs and administrative overhead, incurred by city shall be charged to the permittee. (Ord. 875 § 1 (part), 2003).

A. Except for requirements subject to the exclusive jurisdiction of another regulatory agency, the location, depth and other physical characteristics of any facilities for which an excavation permit is issued shall be subject to approval of the director.
B. All facilities installed under a permit issued under this chapter shall, upon demand of the director, be relocated or lowered if required by the city to avoid potential conflicts with a proper governmental use of a public right-of-way. All expenses incurred in relocating, lowering lines, pot-holing or marking of facilities to determine their exact location after the original installation shall be borne by the permittee. (Ord. 875 § 1 (part), 2003).

Upon completion of underground or surface work permitted under this chapter and at the discretion of the director, permittee shall furnish "as-built" plans of the installation if there have been changes from the original submittal, showing a correct plan view to scale, details, and a profile showing the locations of all elements of the installation based on data obtained in the field during construction. (Ord. 875 § 1 (part), 2003).

Neither the city nor any of its officers, employees, agents or volunteers shall be responsible for any damage caused by any encroachments or excavations in any public right-of-way made by any person under the authority of a permit issued under this chapter. As a condition of application for and issuance of an encroachment or excavation permit, a permittee voluntarily releases, discharges, waives, and relinquishes any and all actions and causes of action for personal injury (including death) or property damage occurring to himself/herself arising out of or as a result of performing the work under the permit; agrees that under no circumstances will he/she, or his/her heirs, executors, administrators and assigns prosecute or present any claim against the city or any of its officers, employees, agents, or volunteers for personal injury (including death) or property damage, including those which arise by the negligence of the city or any of said persons, whether passive or active; and further agrees to defend, indemnify and hold harmless the city, its officers, employees, agents, and volunteers, from any claims, demands, damages, costs, expenses or liability for personal injury (including death) or property damage, arising out of or connected with his/her work under the permit or issuance of the permit. (Ord. 875 § 1 (part), 2003).

A. Violation of this chapter shall be a misdemeanor, but may be charged as either a misdemeanor or an infraction in the discretion of the prosecuting attorney.
B. If charged as an infraction, the minimum penalty for a first conviction is a fifty dollar fine. For a second conviction within one year, the minimum penalty is a seventy-five dollar fine. For a third or subsequent conviction within one year, the minimum penalty is a one hundred dollar fine.
C. A person who violates the provisions of this chapter is guilty of a separate offense for each day, or portion thereof, during which the violation continues.
D. A violation of this chapter which threatens to be continuing in nature is a public nuisance which may be abated or enjoined as such in accordance with Chapter 8.04 or any other provision of law.
E. A violation of this chapter is subject to administrative citation and fine under Chapter 1.14. (Ord. 875 § 1 (part), 2003).