Blythe Municipal Code Ch. 12.08 Encroachments; Excavations

Footnotes:

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Editor's note— Ord. No. 909, § 1, adopted Sept. 14, 2021, repealed the former Ch. 12.08, §§ 12.08.010—12.08.050, and enacted a new Ch. 12.08 as set out herein. The former Ch. 12.08 pertained to Excavations and derived from Ord. 215 §§ 2—6, adopted in 1953; Ord. 218 § 1, adopted in 1953; and Ord. 528 § 1, adopted in 1978.

The following words, terms and phrases when used in this chapter shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

A. "City property" means any public place of any type whatsoever and any property owned, maintained or controlled by the city, now or hereafter existing as such within the city, including the surface of and the space above and below such property.

B. "Completion date" means the date the notice of completion was adopted by the city council for the completion of roadway construction, resurfacing operations, or maintenance works. For streets paved as part of a private development project, this shall be the date the improvements were accepted by the city as complete; for public improvements for which a notice of completion was not adopted by the city council, this date shall be the actual date of completion of the work.

C. "Encroach" or "encroachment" includes, but is not limited to, the performance of any of the acts listed herein below, in, on, under or above the surface of any city property or right-of-way, as defined in this chapter:

1. Excavating, filling or disturbing the surface.

2. Erecting or maintaining any flag, banner, decoration, post, sign, pole, fence, guardrail, wall, loading platform, news stand, mailbox, pipe, conduit, wire or other structure.

3. Planting any tree, shrub, grass or other growing thing.

4. Placing or leaving any rubbish, brush, earth or other material of any nature whatsoever.

5. Constructing, placing, or maintaining any pipe, conduit, wire, and cable or telecommunication facility.

6. Traveling by any vehicle or combination of vehicles or object of dimension, weight or other characteristic prohibited by law without a permit.

7. Lighting or building a fire.

8. Constructing, placing, planting or maintaining any structure, embankment, excavation or other objects adjacent to a right-of-way or watercourse which causes or will cause an encroachment.

9. The application of paint or other marking materials.

D. "Excavate" or "excavation" means any cutting, digging, potholing or otherwise disturbing the street surface within the right-of-way to access or install a utility line or any related surface or subsurface facility or for other any other reason.

E. "Reconstruction" means completely rebuilding a street by removing all the pavement and aggregate base course material, re-compacting the sub-base and restoring the base material and then completely re-paving the street.

F. "Renovation" means a major rehabilitation including overlay or similar roadway improvement work that physically modifies the surface of the roadway prior to applying a new roadway surface or similar work as determined by the public works director or the city engineer.

G. "Repair" means the construction, reconstruction, replacement, restoration, overlay or improvement of any walkway, driveway, street or right-of-way.

H. "Right-of-way" means the surface of and the space above and below any street, road, highway, right-of-way, alley, easement, public utility easement, pathway, sidewalk and other public way, including driveway, curb, gutter, paving or other surface and subsurface drainage structure or facility and any public place, or city property, now or hereafter existing as such within the city.

I. "Utility" means any person or entity providing electricity, gas, telephone, telecommunications, water, or other services to customers, and which pursuant to state law or local franchise is entitled to install its facilities in the public right-of-way.

(Ord. No. 909, § 1, 9-14-21)

A. No person shall encroach nor place any encroachment upon, over or under the surface of any right-of-way or any city property, for any purpose whatsoever, without first obtaining a permit from the city in accordance with the provisions of this chapter.

B. No person shall excavate, erect, construct, place or maintain any pipe, conduit, wire, cable or other structure on, over or under the surface of any right-of-way or any city property, for any purpose whatsoever, without first obtaining a permit from the city in accordance with the provisions of this chapter.

C. No person shall erect, place, display, maintain or use any obstruction, booth, stand, counter, furniture, sign, flag or temporary or permanent fixture upon any right-of-way or any city property, for any purpose whatsoever, without first obtaining a permit from the city in accordance with the provisions of this chapter.

D. No work of any nature shall be performed in any right-of-way or city property, without first obtaining a permit from the city in accordance with the provisions of this chapter.

(Ord. No. 909, § 1, 9-14-21)

Notwithstanding the provisions of Section 12.08.020 of this chapter:

A. The placement of traffic-control markings on pavements and curbs by the city, and the marking of pavements, curbs and sidewalks by utility companies, engineers and surveyors to indicate the location of underground utility lines and monuments in connection with surveying and design, may be done without a permit. However, all other pavement, curb and sidewalk marking require a permit.

B. A permit for public utilities and other continuing uses may contain provisions allowing continuing maintenance of the permittee's facilities in the right-of-way or city property without securing a new and separate permit for each maintenance activity.

C. This chapter does not prevent any person from maintaining any pipe or conduit lawfully on or under any right-of-way or city property, or from making excavations necessary for the preservation of life or property when an urgent necessity therefor arises while city offices are closed. A person making an emergency use or encroachment on a right-of-way or city property shall apply for a permit therefor within one calendar day after the offices of the city are opened and shall pay all applicable fees, perform required pavement restoration and comply with all other applicable requirements of this chapter.

D. The requirements of this chapter may, at the city's option, be modified or waived for contractors or other persons performing work in the right-of-way or on city property for or on behalf of the city through the contract for such work.

(Ord. No. 909, § 1, 9-14-21)

A. The public works director shall prescribe and provide a regular form of application for permits required by this chapter. The application shall show such information as the public works director deems necessary to establish the exact location, nature, dimensions, duration and purpose of the proposed use or encroachment.

B. The application shall be accompanied by construction plans, engineered designs, maps, sketches, diagrams or similar exhibits as required by the public works director. The same shall be of the size and in the quantity prescribed by the public works director and of sufficient clarity to illustrate the method of construction, design, location, dimensions, nature and purpose of the proposed encroachment and its relation to existing and proposed facilities in the right-of-way.

C. The application shall also include information concerning the supervision and safety precautions to be employed, including the erection of barricades, warning lights, signals and signs, and the employment of personnel to direct traffic. If any lanes of traffic will be closed, the applicant shall also submit and obtain approval of a traffic control plan.

D. Prior to and as a condition to approval of a permit pursuant to this chapter, the applicant shall submit to the public works director copies of any and all other licenses, permits or approvals required by the city or any other governmental agency or other private party.

E. No substantial changes shall be made in the plans, design, location, dimensions, character or duration of the encroachment or use as granted by the permit except upon written authorization of the city. The city may require the removal of all work done or facilities installed without a permit or not in compliance with the conditions of a permit.

F. The applicant shall submit with the application for a permit those fees established by resolution of the city council in accordance with the provisions of this chapter.

(Ord. No. 909, § 1, 9-14-21)

A. Indemnification. No permit shall be issued pursuant to this chapter until the permittee has executed and filed with the city an indemnity agreement in a form satisfactory to the city attorney. The permittee shall agree to be responsible for, and defend, indemnify and hold the city harmless from, all claims, demands, expenses or liability, including, but not limited to, personal injury and property damage arising out of or related to work performed by the permittee under the permit, arising out of the failure on the permittee's part to perform work under the permit, or arising from or caused by the structures or encroachments placed in, on or under the city's right-of-way.

B. Insurance. No permit shall be issued pursuant to this chapter until the applicant has filed with the city a certificate of insurance or evidence of self-insurance satisfactory to the city demonstrating sufficient public liability and property damage insurance coverage issued by an insurance carrier authorized to do business in the state, insuring the applicant and the city and its agents against loss by reason of injuries to, or death of persons, or damages to property arising out of or related to work performed by the applicant, its agents or employees while performing any work under the permit, arising out of the failure on the permittee's part to perform work under the permit, and arising from or caused by the structures or encroachments placed in, on or under the city's right-of-way. Such insurance shall be primary and provide coverage for all liability assumed by the applicant under subsection A of this section, shall name the city as an additional insured and shall be provided by the permittee in minimum amounts as required by the city's risk manager.

C. Performance Bonds or Other Financial Security. The public works director may require, as a condition of issuing any permit pursuant to this chapter, the permittee to post performance bonds or other approved financial security to ensure satisfactory completion of any work to be performed in, on or under any right-of-way or city property and to ensure adequate maintenance of encroachments.

(Ord. No. 909, § 1, 9-14-21)

A. All work done, uses made and installations of facilities, under such permits, shall be to the satisfaction of the city and shall be in accordance with the terms and conditions of the permit issued pursuant to this chapter, all adopted regulations, standards and specifications of the city including the regulations and specifications for pavement restoration, all applicable state and federal regulations and the latest edition of applicable industry construction manuals. All work done and use made pursuant to such permits shall be performed in a manner consistent with high industry standards. The public works director may require a permittee to retain an approved utility line identification or locator service such as Underground Service Alert or California Digalert.

B. In the event of a conflict among construction codes and standards, the most stringent code or standard shall apply (except insofar as that standard, if followed, would result in a system that could not meet requirements of federal, state or local law). Where there is a conflict in construction standards, the public works director shall be responsible for making the final determination as to which standard will apply.

C. Each permittee shall at all times employ reasonable care, within the meaning of applicable law, and shall install and maintain in use, commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public. Without limiting the foregoing, each permittee's facilities located on public property shall be constructed, operated and maintained in accordance with good engineering practices and performed by experienced and properly trained maintenance and construction personnel.

D. Each permittee shall locate, construct, operate and maintain its facilities in such a manner that they:

1. Will not endanger or interfere in any manner with the public rights-of-way;

2. Will not interfere with legal rights of any property owner;

3. Will not unnecessarily hinder or obstruct pedestrian or vehicular traffic;

4. Will not interfere with city facilities;

5. Will not interfere with any gas, electric, telephone, telecommunications, water, sewer, or other utility facilities already located in the right-of-way; and

6. Will not obstruct or hinder in any manner other entities' previously approved use of any public rights-of-way.

E. Each permittee shall, to the satisfaction of the city, repair all water and sanitary service lines, streets, sidewalks, curbs, gutters or other public or private property, structures, improvements or facilities disturbed or damaged by construction or operation pursuant to the permit. All such repairs shall be done in accordance with city standard specifications, details and requirements of the public works department.

F. Whenever any work is being done in the city streets, for which approval by the city of a traffic control plan is required, the person or persons performing such work shall maintain at the site of such work at all times during which any such work is being done, signage meeting the requirements set forth in the city's engineering standards.

G. A condition of any permit for excavation or pavement cutting shall be that the permittee reconstruct, renovate and/or repair the damaged street to its prior condition, as if the pavement had not been cut, even if that means complete reconstruction of the entire length of the street recently reconstructed by the city for new or newly surfaced streets, as directed by the public works director or his or her designee and all in accordance with city engineering standards. However, the applicant may elect to pay the pavement damage restoration fee established by city council resolution, in an amount, when pooled with such fees paid by others, sufficient to allow the city to perform final repairs of pavement in streets damaged by street cuts. In the event the applicant chooses to pay the pavement damage restoration fee, then the permittee need only repair the street as directed by the city public works director or his or her designee sufficient to perform and endure until the next city resurfacing or reconstruction. All restoration and repair of streets damaged by pavement cuts shall be done in accordance with the city's engineering standards and as directed by the public works director or his or her designee.

(Ord. No. 909, § 1, 9-14-21)

A. Except as provided for in this section, no excavation or pavement cutting shall be permitted in any street for a period of five years from the completion date for street construction, reconstruction, renovation, or major rehabilitation, including a pavement overlay. Utilities shall determine alternate methods of making necessary repairs to avoid excavating in streets during such five-year period.

B. The public works director may, in his or her discretion, grant waivers to the prohibition set forth in subsection (A) of this section based on the following exceptions:

1. Emergencies that endanger life, property or public health and safety.

2. Repairs or modifications that are necessary to prevent the interruption of essential utility service.

3. Work that is mandated by city, state or federal law.

4. Service for buildings or properties where no other reasonable means of providing service exists.

5. Situations in which no alternative course of action exists, as determined by the public works director in writing setting forth the facts giving rise to such determination.

C. To request a waiver, the applicant must submit a written request to the public works director, which shall include:

1. The location of the excavation.

2. Which exception is being claimed.

3. A description of the work to be performed.

4. The reason(s) why the work was not performed before the street was resurfaced.

5. The reason(s) why the work cannot be performed utilizing methods that do not require excavation.

6. The reason(s) why the work cannot be deferred until after the five-year prohibition period.

7. The reason(s) why the work cannot be performed at another location.

8. Any additional information providing justification to excavate the street(s) within the five-year prohibition period.

D. Notwithstanding any other provision of this section, the public works director may impose any other requirements or restrictions relating to the waiver, the work to be performed, and/or repair or restoration work on the public road or public right-of-way deemed necessary by the public works director for preservation or protection of life, safety, or property.

E. As a condition of any waiver granted pursuant to this section, any person or entity performing an excavation or pavement cutting pursuant to a waiver shall repair or cause to be repaired the excavation or pavement cut with full width paving on the section of street or right-of-way where the excavation or pavement cut occurs as follows:

1. All required repairs shall be completed or caused to be completed by the person or entity issued the waiver within sixty days of completing the work for which the excavation or pavement cut was necessary.

2. For any lateral excavation or pavement cut, resurfacing must include the portion of street containing the excavation or pavement cut and a minimum of ten feet of the street on either side of the excavation or pavement cut. For the purposes of this paragraph, any "pit" excavation or pavement cut shall be considered a lateral excavation or pavement cut.

3. For any longitudinal excavation or pavement cut, resurfacing must include the entire length of the excavation or pavement cut and a minimum of ten feet of the street on either side of the excavation or pavement cut, measured longitudinally.

4. Such additional repair requirements as deemed necessary by the public works director.

5. In lieu of performing the repairs set forth herein, the person or entity may choose to pay the pavement damage restoration fee, in an amount established by city council resolution, in which case payment of such fee shall be a condition of the waiver granted herein.

F. The public works director or designee shall, at all times, maintain a list of all roads currently subject to the five-year prohibition provided for in this section, along with the date on which the five-year prohibition expires for each street listed. Streets that have been constructed, reconstructed, renovated, or rehabilitated within the five years preceding the effective date of this section shall be included in the public works director's initial list of roads subject to the five-year prohibition until five years has elapsed from the completion date. The list required herein shall be available for public inspection in the public works department.

(Ord. No. 909, § 1, 9-14-21)

Fees associated with the permits required pursuant to this chapter, and the application therefor, shall be in an amount established by city council resolution.

(Ord. No. 909, § 1, 9-14-21)

It is unlawful and a public nuisance for any person or entity to violate any provision of this chapter, including, but not limited to, failing to obtain a waiver as required, failing to obtain any permit as required, and failing to repair or cause to be repaired an excavated or cut road within sixty days of completion of the work. Such violation shall be enforceable as a misdemeanor pursuant to Section 1.24.010 of this code and may be abated as a public nuisance pursuant to the procedures set forth in this code and any means authorized by law. Abatement may include, at the discretion of the public works director, the repair or causing of repairs of any street or public right-of-way that has been excavated or cut, and all costs incurred by the city as a result of the repairs shall be recoverable.

(Ord. No. 909, § 1, 9-14-21)