Chapter 12.08 — CONSTRUCTION IN RIGHTS-OF-WAY

(a)

No person may engage in or cause any construction within the public right-of-way without first obtaining from the Director a right-of-way construction permit or an encroachment permit, as provided in this chapter.

(b)

Notwithstanding Subsection (a) of this section, a person is not required to obtain a right-of-way construction permit or an encroachment permit for the following:

(1)

The ordinary maintenance of existing facilities if such is authorized under a franchise granted by the Town. Such facilities shall, however, be maintained in compliance with the construction requirements of this chapter and signing and traffic control shall conform to State specifications. Notwithstanding the foregoing, the franchisee shall notify the Town and provide a copy of the plans for such facilities within a reasonable time prior to their maintenance.

(2)

Construction within the Town right-of-way performed by the Town or pursuant to contracts awarded by the Town.

(3)

Trimming of privately owned trees around overhead facilities, provided traffic control is in accordance with State specifications.

(4)

Work performed pursuant to an annual permit pursuant to Section 12.08.140.

(5)

Work performed by a franchisee to make repairs to existing facilities in response to an emergency, as defined in Section 12.04.020, when such repairs are necessary to protect the public health and safety, provided notice is given to the Director as soon as reasonably practicable.

(6)

Work deemed by the Director to be of such a minimal scope and non-intrusive nature that it shall be exempted. The Director shall have the discretion to review work proposed and is solely authorized to make the determination of eligibility under this subsection. The Director may issue a letter of exemption to any person for work exempted pursuant to this section.

(c)

All exempted work shall control erosion and sediment and shall conform to the dust and erosion control practices as outlined in Sections 12.16.160(b) and 12.16.170, the construction standard details on file with the Director, and all other standards contained herein.

(Code 1990, § 12.04.030; Ord. No. 03-08, 2003)

(a)

Written application. Every application for a right-of-way construction permit shall be in writing upon forms to be provided by the Director and shall contain a statement of the location and purpose of the proposed construction, the length of time for the construction, a diagram or detailed drawings of the construction, a traffic control plan, and a work staging plan. The application shall be dated and shall bear the signature and address of the applicant.

(b)

Plans. The proposed work shall be shown on a set of plans, two sets of which are to be submitted to the Department, along with the application for permit. If required by the Director, the facility to be installed shall be staked on the ground or otherwise marked.

(c)

Fees. No right-of-way construction permit shall be issued until the applicant has paid the fee for said permit. The amount of the fee shall be as established from time to time by resolution of the Town Council. The fee shall cover the Town's costs to process the application and to maintain any inventory or database of facilities that are installed, maintained or repaired.

(d)

Inspection deposit. Prior to the issuance of a permit, a deposit in an amount sufficient to cover the estimated cost of inspections shall be made. An accounting shall be kept of all fees charged against the deposit and the permittee may be asked to supplement the deposit if the Director believes the deposit will be insufficient and, in such case, the permittee will do so within five days of the request. All surplus amounts shall be returned to the permittee. The Director may, in the case of a utility holding an annual permit, upon receipt of a written promise by the utility to pay such fees, permit the utility to pay such fees on a quarterly basis. No subsequent permits shall be issued to any applicant until inspection fees and other charges previously incurred have been paid in full.

(e)

Security. Except for work performed by franchisees, both a performance security and a warranty security, in the form and amount acceptable to the Director, shall be required prior to the issuance of a permit. Failure to provide appropriate security as required will be grounds for denial of the permit requested. The securities shall comply with the following:

(1)

The amount of the performance security shall be sufficient to defray the cost of repairing the streets and any other disturbed facilities at prevailing wage, plus cover all costs incurred by the Town, and shall be in an amount equal to 150 percent of the cost of the work contemplated, as supported by documentation provided by the applicant or the permittee. In addition, a warranty security in the amount of 25 percent of the performance security shall be provided.

(2)

In lieu of the security described in Subsection (e)(1) of this section, a person may furnish an annual performance security to cover their contemplated work for a calendar year. The amount of such an annual security shall be 150 percent of the amount of cost of the work contemplated during the year, as supported by documentation provided by the applicant or the permittee, as determined by the Director. In addition, a warranty security in the amount of 25 percent of the annual performance security shall be provided.

(3)

The security may be a bond, a certificate of deposit, a letter of credit or cash deposit, or other form approved by the Town Attorney. The security shall be issued by an entity in good standing with sufficient assets to secure the obligation, as determined by the Town's Finance Director.

(4)

All performance securities submitted shall be held until 60 days following the satisfactory completion of the work as approved by the Director. All warranty securities shall be held until one year following the completion date and only released upon the certification by the Director that all work is in a satisfactory condition.

(f)

Insurance. The applicant shall provide proof of adequate insurance as provided in Section 12.08.150.

(Code 1990, § 12.04.040; Ord. No. 03-08, 2003)

(a)

Generally. If the applicant complies in all respects with this chapter and with all other applicable laws, rules, regulations or ordinances of the Town, or of any other public agency, and pays the fees and posts security required by this chapter, then the Director may approve the application and issue the permit.

(b)

Responsible party; transfer. Permits issued pursuant to this chapter shall be issued only to the owner, or agent, of the facilities that are planned to be placed in the public right-of-way, or other person responsible for the construction. A separate permit will be required for work at each location unless the locations are contiguous and the entire work is included in the plans accompanying the application. In the event an agent is acting for the owner of the facilities, when authorized in writing by the owner, the agent may pay the fee and sign for the permit; however, the original of the permit will be transmitted to the owner of the facility and the owner and agent shall be responsible for compliance with the provisions of this chapter. In the event a private property owner is the owner of the facilities, the permit shall run with the property and it shall be considered transferred to any subsequent property owner. The permit shall not be otherwise transferred, and any such attempted transfer shall be void.

(c)

Findings. No permit shall be issued if the issuance of such permit will pose a safety hazard to the public, if there are alternative and superior means of accomplishing the work without the proposed construction, if the work will permanently degrade public facilities, or if other similar cause for denying the permit exists. No permit shall be issued by the Director for any purpose if the construction thereof will violate the provisions of any Federal or State law, or Town ordinance. Any permit issued contrary to the provisions of this chapter may be voided by the Director at any time.

(d)

Permit. Each permit shall describe the location and extent of the work, the start date and duration, the permittee to whom the permit is issued, any conditions placed on the permit, and such other information as the Director shall prescribe.

(e)

Acceptance. It is understood and agreed by the permittee that the doing of any work or the maintaining of any encroachment under a permit issued pursuant to this chapter shall constitute an acceptance of the terms and provisions of the permit.

(Code 1990, § 12.04.050; Ord. No. 03-08, 2003)

(a)

Compliance. Any act done under the authority of a written permit, issued pursuant to the provisions of this chapter, shall be done in accordance with the provisions of this chapter and the terms and conditions specified in the permit. Noncompliance with this chapter or the permit issued shall be cause for the Director to stop all work until compliance is achieved or the condition remedied. In such case, the Director may issue a stop work order, impose new conditions on the permit, or suspend or revoke the permit by notifying the permittee in writing.

(b)

Diligent prosecution. After commencement of work, the work shall be prosecuted with due diligence to completion, and in a manner so as not to obstruct any public right-of-way more than is permitted by the permit. If the work is not so prosecuted, or if the work does not, in the judgment of the Director, comply with the terms of this chapter, or if a condition of hazard or nuisance is created which is a threat to public health, safety or welfare, the Director shall notify the permittee, in writing, and require the permittee to take such corrective measures as may be determined by the Director.

(c)

Action by Town. In any case where the work is not completed or restored in the time and manner as specified in the permit, this chapter or the construction standard details, the Director shall order the permittee to complete the work as directed within a specified period. If the permittee should fail, neglect, or refuse to comply with the order, the Director may complete, cause to be completed, or remove such work in such manner as the Director deems expedient and appropriate. The permittee shall compensate the Town for any costs associated with the administration, construction, consultants, equipment, inspection, notifications, remediation, repair, restoration, or any other actual costs incurred by the Town. The Director shall keep a record of all costs incurred in performing such work and shall present the permittee with a demand for payment upon completion of the work, and the permittee shall pay the same within 30 days thereafter. When, in the judgment of the Director, a hazard to the public exists, the Director may take immediate action appropriate to the hazard and necessary for the protection of the public, without giving prior notice to the permittee, as provided in Section 12.08.070.

(d)

Expiration. A right-of-way construction permit shall expire if work has not commenced within 30 days following the issuance of the permit, or such other time as may be specified in the permit, or if work has timely commenced, shall expire upon the date specified in the permit for completion of the work. The Director may grant extensions for good cause.

(Code 1990, § 12.04.060; Ord. No. 03-08, 2003)

(a)

All work shall be performed in accordance with Town and State specifications for signage, barricades, lighting, traffic control, and similar matters to protect the public safety.

(b)

The proposed closing of any street or lane, detour routes, or other traffic control plans, including signage shall be stated on the permit application and the plans. The Director has the sole authority to authorize the closing of any street under the permit issued pursuant to this chapter and may do so based upon considerations of hazard to the public and public inconvenience.

(c)

The permittee may place materials within the street right-of-way as necessary for doing the work authorized by the permit, provided that such materials are placed, barricaded and lighted as required by this chapter or any other law or ordinance of the Town or State, and approved by the Director.

(d)

When required by the Planning and Economic Development Department, above ground facilities shall be screened from public view in an approved manner.

(e)

The permit or a copy thereof shall be kept at the job site during construction and/or installation of any facilities authorized by such permit and shall be made available upon request to any Town employee, police officer, peace officer, CalTrans employee or other person having jurisdiction in such right-of-way.

(f)

No person shall perform excavation work until after he or she has called USA ALERT at 1-800-642-2444. Underground utilities shall be marked on the ground prior to the start of any excavation work.

(g)

As-built plans shall be submitted to the Department upon completion of the work specified in the permit if required by the permit.

(Code 1990, § 12.04.070; Ord. No. 03-08, 2003)

(a)

Conditions regarding completion. The permittee shall return the disturbed portion of the street and other affected public structures and facilities to as good, or better, condition as before, as determined by the Director and shall conform to such other conditions as the Director may require for the protection of the street and safety of the public.

(b)

Cleaning up streets. In every case and at all times, the work of removing from the street all obstructions, surplus materials, debris and waste matter of every description caused by and accumulated from the excavation shall be the responsibility of the permittee.

(c)

Subsequent failure. If, subsequent to the first repair of a surface of a right-of-way damaged or destroyed by construction or an encroachment, it becomes necessary again to repair such surface due to settlement, or any other cause directly attributable to such construction or encroachment, the Director shall inform the permittee in writing of the Director's findings, the corrective action required, and the reasons therefor. In such event, the Director shall have the same authority as provided in Section 12.08.040(c).

(d)

Repair of sunken pavement. In case the pavement or the surface of the street or alley over any excavation should become depressed or broken at any time within three years after the excavation has been completed and before resurfacing of the street or alley, natural wear of the surface excepted, the permittee shall, upon written notice from the Director, immediately proceed to 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 backfill and have the pavement restored as specified by the Director within such time period as may be specified by the Director. If the pavement is not restored as specified by the Director within the time period specified by the Director, and unless delayed by a strike or conditions beyond the permittee's control, the Director may cause the work to be done after giving the permittee ten days' written notice. The cost thereof, including any inspection costs and administrative overhead incurred by Town, shall be assessed against the permittee. After the cost is paid to Town, the Town shall be responsible for any future repairs of that portion of pavement over the excavation that was repaired by Town.

(e)

Liability of the permittee. Except as specifically provided in this section, repair or restoration by the Town in accordance with this chapter shall not relieve the persons from any liability at the site of the repair or restoration, including, but not limited to, future failures.

(Code 1990, § 12.04.080; Ord. No. 03-08, 2003)

(a)

If, in the judgment of the Director, the site of an excavation is considered hazardous, constitutes a public nuisance, public emergency, or other imminent threat to the public health, safety, or welfare that requires immediate action, the Director shall order the condition remedied by written, oral, telephonic or facsimile communication to the permittee or any agent thereof and shall designate the permittee as the responsible party.

(b)

If a responsible party is inaccessible or fails, neglects, or refuses to take immediate action to remedy the condition as specified in said communication, the Director shall remedy the condition or cause the condition to be remedied in such a manner as the Director deems expedient and appropriate. The persons identified by the Director as the responsible party shall compensate the Town for any reasonable costs associated with the administration, construction, consultants, equipment, inspection, notification, remediation, repair, restoration, or any other actual costs incurred by the Town.

(Code 1990, § 12.04.090; Ord. No. 03-08, 2003)

In the event of any future construction, reconstruction, maintenance, widening, regrading or similar improvements, of any Town right-of-way or place, any facilities placed in such right-of-way or placed under permit are subject to relocation, lowering replacement, repair or removal when requested by the Town to avoid conflicts with the proper governmental use of Town's right-of-way or place. Any relocation, lowering replacement, repair or removal of the facilities that may be required by the Town shall be done at the expense of the owner of the facilities. The Town shall give at least 180 days' written notice of the need to relocate the facilities. In the event the owner fails to timely relocate the facilities, the Town may remove or disconnect the facilities and charge the owner the reasonable and actual costs thereof. Any facilities placed under franchise to the Town shall be relocated according to the terms of the franchise. This section shall not apply to facilities in place prior to the existence of the road.

(Code 1990, § 12.04.100; Ord. No. 03-08, 2003)

(a)

Generally. All construction and excavations shall be performed according to the terms of the permit and the construction standard details on file with the Director.

(b)

Special specifications. The Director may issue special specifications for the work which, if said specifications conflict with the provisions of this chapter, shall supersede the construction standards set forth herein. The standards and requirements may impose different requirements for different excavations, taking into consideration relevant factors, such as the location, type, and extent of excavation performed, the condition of the surface being excavated, and the period of time elapsed since the construction or most recent resurfacing of the surface being excavated. In the event specifications do not expressly conflict, the permittee is required to comply with both the provisions of this chapter and the special specifications.

(c)

Lateral support. All excavations, both with the right-of-way and within property adjacent to the right-of-way should be performed, and all facilities shall be constructed and maintained, so as to afford lateral, sublateral, adjacent and overhead support to surrounding embankments and structures, including in the case of adjacent property, proper lateral support for Town streets, lines, pipes, and facilities.

(d)

Review by Director. All work shall be done subject to the review of, and to the satisfaction of, the Director.

(e)

Periodic review. The standards and requirements shall be reviewed at least once every five years to determine whether any changes can be made to improve the standards for the performance of the work

hereunder, to prevent or substantially reduce the degradation and damage caused to the street surface by excavation, to enhance the protection of the public in the performance of the work, and to enact other changes beneficial in the opinion of the Director. As part of such review, the Director shall provide affected utilities with an opportunity to review and comment upon the standards and requirements and any changes proposed thereto.

(Code 1990, § 12.04.110; Ord. No. 03-08, 2003)

(a)

The Director may require a permittee to reimburse the Town for actual and reasonable costs of all inspections.

(b)

The permittee shall call the Public Works Department of the Town a minimum of 24 hours prior to any work in the right-of-way to provide notification that the permitted work is about to begin, and to schedule inspections by the Department.

(c)

The contractor shall call the Director for final inspection to determine that all work has been satisfactorily completed pursuant to the permit. The approval by the Town shall be in writing by issuance of a certification of completion.

(Code 1990, § 12.04.120; Ord. No. 03-08, 2003)

(a)

When evidence indicates that the presence of surface waters or subsurface waters may contribute to construction hazards, difficulties, or settlement of a trench zone either in its natural state or as a result of trenching operations, the Director may require construction or installation of above or below ground, temporary or permanent, facilities to collect the waters and convey them to an acceptable point of discharge. Such facilities may also include off-site facilities.

(b)

Should any springs, aquifers or other sources of underground water be discovered during any excavation or trenching operation, the excavation or trenching in the area shall be discontinued until provisions acceptable to the Director are made to remedy the condition. The Director may require the project to be redesigned by an engineer to accommodate the additional waters, including removal and replacement of any unsuitable materials, dirt, pavement or other similar materials.

(Code 1990, § 12.04.130; Ord. No. 03-08, 2003)

Either the Public Works Director or the Planning Director may require revegetation of disturbed areas of landscaping or to prevent future soil erosion. All clearing, grading, excavation and fill work, including excavation and embankment slope surfaces, shall be protected from erosion by revegetation or convenient other means, as required by the Director. Vegetation and seed mixes must be approved by the Department. The erosion control facilities will be designed to reduce the runoff velocities and prevent erosion and sedimentation. This section applies to exempted work, work performed under a grading permit, as well as any work done under a right-of-way construction permit or encroachment permit.

(Code 1990, § 12.04.140; Ord. No. 03-08, 2003)

(a)

November 1 through April 30. From November 1 through April 30, no right-of-way construction work may be performed except where the work is expressly authorized in writing by the Director. When work is authorized as provided herein, the Director shall set forth in writing the hours during which work may be performed.

(b)

May 1 through October 31. If operations under any right-of-way construction permit are within 500 feet of residential or commercial occupancies, such operations shall be limited to the hours of 7:00 a.m. to 8:00 p.m. daily. Operations on Sundays and Town-recognized holidays are permitted only upon written approval of the Town Manager or designee and limited to 9:00 a.m. to 5:00 p.m., except that maintenance and emergency repair work exempted pursuant to Section 12.08.010(b) may be performed at any time provided that a nuisance is not created by such maintenance operations. Major repair work to equipment on the site is not permitted except upon approval by the Town Manager or designee.

(Code 1990, § 12.04.150; Ord. No. 03-08, 2003)

Any person may, at the discretion of the Public Works Director, be issued an annual permit for ordinary maintenance of, or emergency work to, its facilities located or installed in Town streets. The annual permit may be revoked if the permittee fails to comply with the terms of this chapter and of such a permit. Any emergency work done under an annual permit shall be reported to the Department the next working day after the work has been performed and a permit applied for if required by the Director. The Department shall be notified a minimum of 24 hours in advance of any ordinary maintenance being started. Ordinary maintenance includes regular, ongoing maintenance, and does not include new construction, upgrades of infrastructure, expansion of capacity or reconstruction activity. The Director shall determine whether any activity is permissible maintenance under an annual permit, and the Director's determination shall be final.

(Code 1990, § 12.04.160; Ord. No. 03-08, 2003)

(a)

Liability. Any person performing work or maintaining any facilities within a public right-of-way, whether in accordance with this chapter or in violation of this chapter, whether in conformance with the terms of the permit or in violation of the terms of the permit, or any person causing such work or maintaining such facilities shall bear full responsibility for any liability which may arise from that work, and shall indemnify, defend and hold harmless the Town, its officers and employees from any claims which may arise from such work. The approval of any plans or issuance of any permit does not relieve the permittee from full responsibility for any injury or damage caused by the permittee's operations.

(b)

Insurance. Prior to the issuance of any permit, the applicant shall provide acceptable proof of insurance as required by this section. Insurance policies shall be procured and at all times maintained by the applicant or the permittee, at its sole cost and expense, in a form and content satisfactory to Director, the following policies of insurance:

(1)

Comprehensive general liability insurance. A policy of comprehensive general liability insurance written in the amount of:

a.

$1,000,000.00 per person and $2,000,000.00 in the aggregate for bodily injury, and $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate for property damage; or

b.

A combined single limit for bodily injury and property damage of $2,000,000.00 per occurrence and $4,000,000.00 in the aggregate.

(2)

Worker's compensation insurance. A policy of worker's compensation insurance in such amount as will fully comply with State law and which shall indemnify, insure and provide legal defense for both the applicant or the permittee, and the Town against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the applicant in the course of carrying out the work or services under the permit.

(c)

Adjustment. The risk manager of Town shall monitor market conditions for insurance and if the coverage provided herein is insufficient, risk manager may recommend additional coverage to the Town Council who may increase the coverage required hereunder by resolution.

(d)

Certificate. The Director may require that an applicant provide acceptable proof of insurance in the amounts required by this section prior to issuing any permit. Failure to provide acceptable proof of insurance when requested by the Director will be grounds for denial of the permit requested. The Director

shall require the applicant or applicant's contractor to furnish a certificate of insurance countersigned by an authorized agent of the insurance company setting forth the general provisions of the liability insurance coverage. This certificate shall name the Town, its officers, employees and agents as additional insured under the policy. The certificate shall contain a statement of the obligation of the insurance company to notify the Director at least ten working days prior to any material change or cancellation of the coverage. Upon application to the Director and with good cause, a reduction in insurance requirements may be allowed.

(e)

Cancellation. Cancellation of any insurance required under this section will be grounds for the Director to revoke the permit issued and to halt any work on the job until insurance is reestablished.

(f)

Assumption of risk. Facilities placed within the right-of-way shall be there at their own risk. The Town shall not be responsible for any damage to such facilities, no matter what the cause of such damage, and the permit shall so state.

(Code 1990, § 12.04.170; Ord. No. 03-08, 2003)

The owner shall execute a hold harmless clause in the permit which shall read as follows:

"The permittee for himself or herself, his or her contractors, and employees agrees to save, indemnify, and hold harmless the Town, its officers, employees and representatives from all liabilities and claims from any cause whatsoever while in, upon or in any way connected with the work covered by this permit until completion is approved by the Director and a Certificate of Completion filed. The permittee does further agree to defend the Town in any claim arising out of, or as a result of, the work done under this permit."

(Code 1990, § 12.04.180; Ord. No. 03-08, 2003)