Division 1 — ENCROACHMENTS AND EXCAVATIONS

SEC. 19-205. DEFINITIONS.

For the purpose of this article, the following words shall have the following meanings:

(A) ENCROACHMENT - Any physical object or material thing that occupies space in, under or on a right-of-way, including any obstruction within or over a right-of- way, but not including structural and architectural projections permitted by the code, a building being moved under a city permit and any vehicle, bicycle or similar mechanical means of transportation in motion on a right-of-way.

(B) ENGINEER - The city engineer or designee, including city inspectors and the city streets superintendent.

(C) EXCAVATE - Cutting, digging or boring in a right-of-way, including any street repair, trenching, patch or fill.

(D) RIGHT-OF-WAY - Any real property or interest therein owned by or under the jurisdiction of the city, located within the city, and used or reserved for a public purpose, including any public road, street or alley (including curbs, gutters and parkways), any public waterway, and any public easement, parking lot, park or landscaped area.

(E) STREET CUT FEE - A payment made to the city for the privilege to excavate in order to reimburse the city for damage to the right-of-way caused by the excavation and not corrected by any backfill, compaction or pavement replacement.

(`64 Code, Sec. 26-1) (Ord. No. 2444)

SEC. 19-206. PERMIT REQUIRED.

A person shall obtain an encroachment permit from the city before doing any of the following:

(A) Excavate in a right-of-way;

(B) Construct, alter or repair any driveway, sidewalk, curb, gutter, or other improvement in a right-of-way;

(C) Plant, remove or permanently affect in any manner a tree, a shrub or other plant life within a right-of-way;

(D) Create, alter or remove an encroachment, including the erection of a temporary structure; and

(E) Move any object, except a building, the size or movement of which would interfere with the normal flow of vehicular traffic on a right-of-way.

(`64 Code, Sec. 26-2) (Ord. No. 2444)

SEC. 19-207. APPLICATION; INDEMNIFICATION OF CITY.

(A) The engineer shall provide the application for an encroachment permit.

(B) The engineer shall condition the permit as necessary to ensure that the work is performed according to city standards and specifications. If the engineer finds that the proposed work is in the public interest and not contrary to the public health, safety or welfare, the applicant shall be granted the permit.

(C) Until final acceptance of the work, the permittee shall indemnify and save harmless the city council, the city and its officers and employees from all liability and against all loss, cost or expense occasioned by or arising from any work performed under the encroachment permit.

(`64 Code, Sec. 26-3) (Ord. No. 2444)

SEC. 19-208. WORK WITHOUT A PERMIT; REVIEW FEES.

If a person without an encroachment permit commences any work for which an encroachment permit is required, the engineer shall review the work before issuing a permit. The person commencing such work shall pay a review fee in addition to any permit fees, whether or not the engineer issues a permit. The review fee shall be equal to the total amount of the permit and inspection fees set forth in section 19-220.

(`64 Code, Sec. 26-4) (Ord. No. 2444)

SEC. 19-209. DURATION OF PERMIT.

(A) An encroachment permit is valid for the period specified in the permit, which will usually be 30 days from the date of issuance.

(B) A utility encroachment permit is valid for a calendar year, or for the part thereof stated in the permit.

(C) A person conditioned by a land use approval to maintain landscaping or other improvements in a right-of-way shall obtain an indeterminate encroachment permit, which shall be valid as long as the permittee maintains the landscaping or other improvements in accordance with the conditions of the land use approval and complies with all conditions of the indeterminate encroachment permit.

(D) A person permitted by agreement with the city to place a structure on a right-of-way for six months or longer shall obtain an indeterminate encroachment permit, which is valid as long as the agreement permits the structure to remain and the permittee complies with all conditions of the agreement and the indeterminate encroachment permit.

(E) A permittee shall comply with all conditions of the indeterminate encroachment permit issued to the permittee.

(`64 Code, Sec. 26-5) (Ord. No. 2444, 2654)

SEC. 19-210. UTILITY ENCROACHMENT PERMIT.

A public utility shall obtain a utility encroachment permit. Before commencing any work, the public utility shall also obtain an encroachment permit for the specific work. In an emergency, a public utility may do work before obtaining an encroachment permit for the specific work, provided that within three days after beginning the work, the public utility shall inform the engineer of the date, location and type of work done.

(`64 Code, Sec. 26-6) (Ord. No. 2444)

SEC. 19-211. SPECIFICATIONS FOR WORK.

The permittee shall comply with the specifications in the encroachment permit. Copies of approved specifications will be available to any applicant or permittee.

(`64 Code, Sec. 26-7) (Ord. No. 2444)

SEC. 19-212. INSPECTION OF CONCRETE WORK.

Any person doing concrete work under an encroachment permit shall ask the engineer to inspect the work at least 24 hours before pouring the concrete. No person shall pour concrete without prior approval by the engineer.

(`64 Code, Sec. 26-8) (Ord. No. 2444)

SEC. 19-213. TESTING AND CERTIFICATION OF WORK.

At any stage of permitted work, the engineer may require the permittee to do testing and certification, including, but not limited to, materials testing and certifications by professional engineers or testing businesses, to the extent required to allow the engineer to determine whether the work is satisfactory.

(`64 Code, Sec. 26-9) (Ord. No. 2444)

SEC. 19-214. PROTECTION OF PUBLIC.

A permittee is responsible for the condition and progress of the work until its final acceptance and shall use all reasonable and necessary precautions and measures to protect the work and to prevent accidents and harm to persons and property arising from the work.

(`64 Code, Sec. 26-10) (Ord. No. 2444)

SEC. 19-215. REMOVAL OF ITEMS.

Unless otherwise authorized by the engineer, a permittee shall remove all equipment, materials and debris from the permitted work site within three days after acceptance of the work.

(`64 Code, Sec. 26-11) (Ord. No. 2444)

SEC. 19-216. ACCEPTANCE OF WORK; SECURITY.

(A) The permittee shall correct defective work as determined by the engineer.

(B) No permitted work is finished or completed until accepted by the engineer.

(C) The engineer may require the permittee to post security in order to guarantee satisfactory workmanship after acceptance, in an amount and for a period of time determined by the engineer to be necessary in order to protect the public health, safety and welfare.

(`64 Code, Sec. 26-12) (Ord. No. 2444)

SEC. 19-217. CERTIFICATE OF OCCUPANCY; ELIMINATION OF DRIVEWAYS.

(A) The city shall not issue any certificate of occupancy or use, or give any final clearance to a public utility for service, for any building until damage to abutting rights-of-way occasioned by construction of the building and all required or damaged rights-of-way or driveways serving the lot on which the building is located are properly repaired or constructed and meet approved specifications, as determined by the engineer.

(B) If the need for or use of a driveway serving a lot has been eliminated by the conversion, alteration or removal of improvements on the lot, or by a change in the use of the lot, the driveway should be replaced with sidewalk, curb and gutter improvements.

(`64 Code, Sec. 26-13) (Ord. No. 2444)

SEC. 19-218. USE OF CITY FORCES; CHARGE.

(A) The city may require that repairs to rights-of-way necessitated by a permittee other than a public utility or a city utility be performed by city staff rather than by the permittee.

(B) In such case, the permittee shall pay the city the estimated charge for repairs computed from the city's approved schedule of charges for repair work by city forces.

(C) A schedule of approved charges for repair work by city forces, adopted by the city council, shall be on file in the offices of the engineer and the city clerk.

(`64 Code, Sec. 26-14) (Ord. No. 2444)

SEC. 19-219. CHARGE FOR EXTRA WORK.

If repairs exceeding those estimated are made by city forces, the permittee shall promptly pay the city for such work, in accordance with the schedule of charges and the repairs performed.

(`64 Code, Sec. 26-15) (Ord. No. 2444)

SEC. 19-220. PERMIT FEES.

(A) An applicant for an encroachment permit shall pay the following fees:

(1) Encroachment permit fee; and

(2) Inspection fee. If the work is to be performed by city forces, the applicant shall pay an amount equal to the estimated cost of the work in lieu of an inspection fee.

(B) A schedule of fees to implement this section shall be established by resolution of the city council.

(`64 Code, Sec. 26-16) (Ord. No. 2444)

SEC. 19-221. STREET CUT FEE; WAIVER.

(A) An applicant for an encroachment permit to excavate shall pay a street cut fee unless otherwise provided for herein.

(B) If an applicant intends to excavate in a right-of-way scheduled in the city's capital improvement program for complete rehabilitation within one year of the date the encroachment permit is issued, the applicant is not required to pay the street cut fee.

(C) As provided in section 19-222, those public utilities granted franchises by State statute or by a franchise agreement with the city, obligating the franchisee to make all repairs to city streets necessitated by the operations of the franchisee, are not required to pay the street cut fee.

(D) As provided in section 19-223, the engineer may waive the street cut fee for those city utilities that request such waiver and that present evidence satisfactory to the engineer of the capacity to perform the conditions of waiver set out in section 19-223.

(E) The street cut fee shall be established by resolution of the city council.

(F) If the engineer determines that permitted work is voluntarily undertaken, rather than required by law, regulation or a condition of land use approval, and the work will be paid for by the permittee, and benefits the city, the engineer may waive the fees imposed by this section.

(`64 Code, Sec. 26-17) (Ord. No. 2444)

SEC. 19-222. PERIODIC INSPECTION AND REPAIR BY FRANCHISED UTILITIES.

(A) No later than January 1, 1997, and every five years thereafter, each franchised public utility (“utility”) for which the street cut fee is not required pursuant to section 19-221(C) shall inspect, as directed by the engineer, the pavement in the city's streets where the utility has made an excavation or street cut at any time, until such portion of the street is completely resurfaced or reconstructed.

(B) As directed by the engineer, the utility shall identify all defects in the pavement over and around such excavations and street cuts that arise from such excavations and street cuts and make repairs and perform maintenance in accordance with city specifications.

(C) The utility shall inspect such repairs and maintenance and report thereon to the engineer. The inspections and reports may be made by the utility, by city staff or by an inspector approved by the engineer, as directed by the engineer. If the inspections and reports are made by city staff, the utility shall pay the city for the cost thereof. If the inspections and reports are made by an inspector approved by the engineer, the utility shall pay such person for such work.

(D) The engineer may, from time to time, inspect such excavations and street cuts and notify the utility of any defects in the pavement that arise from such excavations and street cuts, whereupon the utility will make repairs and perform maintenance as directed by the engineer.

(E) Before performing such inspection, repair or maintenance, the utility may receive from the engineer the locations and names of streets that will be repaved within one year from the date such information is received. The utility need not perform such inspection, repair and maintenance on such streets.

(F) If the utility does not perform one or more of the utility's duties set out in this section, the engineer shall notify the utility thereof, specifying the failure. The utility shall cure the failure within 20 days of receiving the notice, or such additional time as the engineer may grant. The engineer may refuse to issue any additional encroachment permits to the utility until the cure is completed.

(G) If, as part of or in the course of doing pavement work or inspecting pavement conditions, in city streets, city employees or contractors identify a defect in the pavement over or around an excavation or street cut that was previously made by a utility and that arises from such excavation or street cut, such employees or contractors may repair such defect, and the utility shall pay the city for the cost of making such repair.

(H) If the utility does not timely pay any amount authorized by this section, the engineer may refuse to issue any additional encroachment permits to the utility until the amount is paid.

(`64 Code, Sec. 26-18) (Ord. No. 2444)

SEC. 19-223. PERIODIC INSPECTION AND REPAIR BY CITY UTILITIES.

(A) Each city utility shall state on its application for an encroachment permit whether the city utility will pay the street cut fee or requests a waiver thereof. A city utility that requests a waiver of the street cut fee shall also present evidence satisfactory to the engineer that the city utility has the capacity to perform the conditions of waiver set out in this section.

(B) If the engineer waives the street cut fee for a city utility, that utility shall, within 90 days of the issuance of the encroachment permit for which the street cut fee was waived, and every five years thereafter, inspect, as directed by the engineer, the pavement in the city's streets where the city utility has made an excavation or street cut at any time, until such portion of the street is completely resurfaced or reconstructed.

(C) As directed by the engineer, the city utility shall identify all defects in the pavement over and around such excavations and street cuts that arise from such excavations and street cuts and make repairs and perform maintenance in accordance with city specifications.

(D) The city utility shall inspect such repairs and maintenance and report thereon to the engineer. The inspections and reports may be made by the city utility, by other city staff or by an inspector approved by the engineer, as directed by the engineer. If the inspections and reports are made by an inspector approved by the engineer, the city utility shall pay such person for such work.

(E) The engineer may, from time to time, inspect such excavations and street cuts and notify the city utility of any defects in the pavement that arise from such excavations and street cuts, whereupon the city utility shall make repairs and perform maintenance as directed by the engineer.

(F) Before performing such inspection, repair or maintenance the utility may receive from the engineer the locations and names of streets that will be repaved within one year from the date such information is received. The city utility need not perform such inspection, repair and maintenance on such streets.

(G) If the city utility does not perform one or more of the city utility's duties set out in this section, the engineer shall notify the city utility thereof, specifying the failure. The city utility shall cure the failure within 20 calendar days of receiving the notice, or such additional time as the engineer may grant. The engineer may refuse to issue any additional encroachment permits to the city utility until the cure is completed or may issue any additional encroachment permits only on condition that the city utility pay the street cut fee.

(H) If, as part of or in the course of doing pavement work or inspecting pavement conditions in city streets, city employees or contractors not working for the city utility identify a defect in the pavement over or around an excavation or street cut that was previously made by the city utility and that arises from such excavation or street cut, such employees or contractors may repair such defect.

(I) If the city utility is required to pay the street cut fee, or if city employees or contractors not working for the city utility make inspections and reports or perform repairs necessitated by the city utility's excavations or street cuts, the city manager may determine a method for the city utility to reimburse the city program doing such work or paying such contractor.

(`64 Code, Sec. 26-19) (Ord. No. 2444)