Article II — ENCROACHMENT AND EXCAVATION PERMITS

This chapter is adopted pursuant to the general provisions of the Paradise Municipal Code for the purpose of regulating excavations and/or encroachments on, over or under a public right-of-way or public service easement.

(Ord. 321, § 1(part), 1999)

Unless the contrary is stated or clearly appears from the context, the following definitions shall govern the construction of the words and phrases used in this chapter:

Encroachment. The term "encroachment" means any construction work performed within a public right-of- way or public service easement; any work other than construction work performed within a public right-of- way or public service easement which obstructs the public right-of-way or public service easement or interferes with the use of the public right-of-way or public service easement for its intended purpose; and

any structure or object other than a vehicle which is placed or installed within a public right-of-way or within a public service easement in a manner which obstructs the public right-of-way or public service easement, or in a manner which otherwise interferes with the use of the public right-of-way or public service easement for its intended purpose.

Excavation. The term "excavation" means the removal of any macadam, concrete or other surface material covering a public right-of-way or public service easement, and/or the removal of any earth material in or under the public right-of-way or public service easement.

Person. The term "person" means any person, public utility, corporation, partnership, company or other public or private entity except for the town.

Public right-of-way. The term "public right-of-way" means any town street, sidewalk, pedestrian path, bike path, alley or any other "public way," as that term is defined in the California Streets and Highways Code.

Public service easement. The term "public service easement" means any public sewer easement, public storm drain easement, public utility easement or other "public service easement," as the term is defined in the California Streets and Highways Code.

Public works director/town engineer. The term "public works director/town engineer" means the Public Works Director/Town Engineer of the Town of Paradise, and his or her authorized designee(s).

(Ord. 321, § 1(part), 1999)

The public works director/town engineer shall administer this chapter, including, but not limited to, acting on all applications for a permit required by this chapter, and undertaking any of the enforcement actions provided for by this chapter.

(Ord. 321, § 1(part), 1999)

manager.

A.

Right to administrative review. Any person aggrieved by a determination made or action taken by the public works director/town engineer, pursuant to the provisions of this chapter, may apply to the town manager for administrative review of such determination or action.

B.

Applications for administrative review. Applications for administrative review of a determination made or action taken by the public works director/town engineer pursuant to this chapter shall be in writing and shall be filed in the office of the town manager no later than fifteen days following the date such determination or action was made or taken, or where written notice of such determination or action is required to be served, the date such notice is served, provided that the town manager may extend the time for filing an application for good cause shown. In addition to setting forth a request for administrative

review of a determination made or action taken by the public works director/town engineer, such application shall contain a brief statement of the reasons why the applicant believes that such determination or action does not comply with the provisions of this chapter, and shall set forth the relief requested by such person from such determination or action.

C.

Decision on application for administrative review. Upon the filing of an application for administrative review of a determination made or action taken by the public works director/town engineer pursuant to the provisions of this chapter, the town manager shall consider the application and render a decision within fifteen days either affirming the determination or action of the public works director/town engineer or reversing or modifying such determination or action. Prior to rendering a decision, the town manager may, at his or her sole discretion, convene an informal hearing for the purpose of reviewing evidence or hearing arguments bearing on such decision, provided notice of the date, time and place of such hearing is served on the person who filed the application for administrative review within a reasonable time prior to such hearing. After rendering a decision, the town manager shall promptly inform the public works director/town engineer of the decision to be served on the person who filed the application for administrative review.

D.

Stay of determination made or action taken by public works director/town engineer pending administrative review. Any determination made or action taken by the public works director/town engineer in accordance with the provisions of this chapter, save and except for an order to stop work issued by the public works director/town engineer or the commencement or prosecution of work by the public works director/town engineer to remove or remedy a condition in a public right-of-way or public service easement which threatens the safety of life or property, shall be stayed pending a decision of the town manager on an application for administrative review of such determination or action.

(Ord. 321, § 1(part), 1999)

A.

Right to appeal. A person aggrieved by a decision of the town manager following the filing of an application for the administrative review of a determination made or action taken by the public works director/town engineer pursuant to the provisions of this chapter may appeal such decision to the town council within thirty days.

B.

Stay of decision of town manager pending appeal. Any decision of the town manager on an application for administrative review of a determination made or action taken by the public works director/town engineer in accordance with the provisions of this chapter, save and except for an order to stop work issued by the public works director/town engineer or the commencement or prosecution of work by the public works director/town engineer to remove or remedy a condition in a public right-of-way or public service easement which threatens the safety of life or property, shall be stayed pending a final decision of the town council on such appeal.

(Ord. 321, § 1(part), 1999)

Except as provided in this chapter, it is unlawful for any person to encroach upon a public right-of-way or public service easement or make an excavation within a public right-of-way or public service easement unless and until a permit for such encroachment or excavation has been approved and issued in the manner provided by this chapter.

(Ord. 321, § 1(part), 1999)

Notwithstanding the provisions of this chapter to the contrary, a permit shall not be required for the following encroachments or excavations on or within a public right-of-way or public service easement:

A.

An encroachment made in the performance of work required by a public works contract between the town and a contractor;

B.

An encroachment made by the owner of property adjoining a public right-of-way for the purpose of installing concrete flat work in a parkway between a public street and sidewalk or for the purpose of installing concrete flat work behind a public sidewalk, provided the concrete flat work has been approved by the public works director/town engineer;

C.

An encroachment made by a town officer or employee acting within the course or scope of such officer's or employee's duties or employment;

D.

An encroachment made by a public entity with an existing legal or contractual right to perform such work;

E.

Resurfacing or repaving private driveway approach not requiring excavation or significantly altering drainage patterns;

F.

Minor landscaping performed by the owner of property adjoining a public right-of-way, consisting of bushes, shrubs and ground cover of a temporary nature, which does not negatively affect the traffic site distance, providing such landscaping has been approved by the public works director/town engineer;

G.

An encroachment within a public service easement by a public utility with rights therein.

(Ord. 321, § 1(part), 1999)

Applications for a permit required by this chapter shall be filed in the office of the department of public works, shall be in a form and contain the information prescribed by the public works director/town engineer and shall be accompanied by a permit fee in an amount established by resolution of the town council.

(Ord. 321, § 1(part), 1999)

All requests for fee waivers or reductions shall be made in writing, to the public works director/town engineer. The public works director/town engineer shall place such request on the next available town council agenda for review and discussion of possible authorization of waiver or reduction of fees. The person or agency requesting waiver shall be responsible for paying the fully burdened rate for staff time involved in research and preparation of town council staff report, and such request shall be accompanied by a deposit, in an amount equal to two hours staff time, at the current hourly staff rate.

(Ord. 321, § 1(part), 1999)

Applicant qualifications.

Where an application is filed for a permit pursuant to this chapter authorizing construction or excavation work within a public right-of-way or public service easement, the applicant shall establish to the satisfaction of the public works director/town engineer the following:

A.

That the applicant holds a valid contractor's license issued pursuant to Chapter 9, Division 3 of the California Business and Professions Code (commencing with Section 7000) to perform the kind of work within the public right-of-way or public service easement which would be authorized by the permit; or

B.

That the applicant owns the property adjoining that portion of the public right-of-way or public service easement in which the work to be authorized by the permit will be performed, that such work will consist of repairs to sidewalks, curbs, gutters or driveway, and that the work will be performed either entirely by the applicant or by the applicant in conjunction with unpaid assistants.

(Ord. 321, § 1(part), 1999)

Plans and specifications.

Where an application is filed for a permit required by this chapter authorizing construction or excavation work within a public right-of-way or public service easement, the applicant shall file with the public works director/town engineer plans and specifications which indicate the location, nature and extent of the work

to be performed within the public right-of-way or public service easement pursuant to the permit and which establish that such work will conform to the design criteria and improvement standards adopted by the Town of Paradise and/or any other applicable laws and regulations.

(Ord. 321, § 1(part), 1999)

Where the public works director/town engineer determines that a completed application has been filed for a permit required by this chapter and there are no grounds for denying such permit, the public works director/town engineer shall approve the application and issue the permit subject to all of the general and special conditions hereinafter provided for by this chapter at such time as the applicant has provided the comprehensive liability insurance and otherwise complied with all other general or special conditions required as conditions precedent to the issuance of the permit.

(Ord. 321, § 1(part), 1999)

A.

Grounds for denial. The public works director/town engineer shall deny an application for a permit required by this chapter if the public works director/town engineer determines that:

The encroachment or excavation proposed by the application is for the construction or installation of improvements of facilities within a public right-of-way or public service easement which are not an authorized use of a public right-of-way or public service easement;

The encroachment or excavation, as proposed in the application, would unreasonably interfere with the use of public or private property adjoining or in the vicinity of the public right-of-way or public service easement in which such encroachment or excavation is to be made; or

The encroachment or excavation, as proposed in the application, would threaten the safety of persons or property.

B.

Notice of denial. Where the public works director/town engineer determines to deny an application for a permit required by this chapter, the public works director/town engineer shall promptly cause a notice of such determination to be served on the permit applicant. In such notice the public works director/town engineer shall state the reasons for the determination not to approve the application and shall set forth the right of the applicant to apply for administrative review and appeal of such determination in the manner provided by this chapter.

(Ord. 321, § 1(part), 1999)

A.

Liability. The permittee shall be solely liable for all claims or liability associated with the work authorized by a permit. In addition, permittee shall hold harmless, indemnify and defend the town from and against all such claims and liability.

B.

Insurance requirements. Except as hereinafter provided by this chapter, no permit shall be issued pursuant to the provisions of this chapter unless and until the permittee has obtained a comprehensive general liability insurance policy from an insurance company licensed to do business in the State of California and having a financial rating in Best's Insurance Guide of at least "B," which provides insurance coverage against all liabilities for death, personal injury or property damage arising out of or in any way related to the encroachment and/or excavation work authorized pursuant to such permit.

C.

Amount of insurance. The comprehensive general liability insurance obtained by a permittee at the time of the issuance of a permit pursuant to the provisions of this chapter shall be in an amount of at least one million dollars, combined single limit, except that where the town manager determines that work performed pursuant to such permit involves unusual risks which expose the town to liabilities in excess of one million dollars, then such insurance shall be in an amount which the town manager determines is necessary to fully cover town's exposure to all such risks.

D.

Form of insurance. The comprehensive general liability insurance obtained at the time of the issuance of a permit, pursuant to the provisions of this chapter, shall include an endorsement naming the town, the town's officers, employees and agents as additional insureds under the coverage afforded, shall be primary with respect to any other insurance available to the town, shall include a severability of interest (cross- liability) clause, shall require the insurer to provide the town at least thirty days prior notice of cancellation, and otherwise shall be in a form approved by town manager.

E.

Proof of insurance. Proof of comprehensive general liability insurance provided by a permittee at the time of the issuance of a permit pursuant to the provisions of this chapter shall be in a form approved by the town manager and shall be filed with the public works director/town engineer prior to the issuance of such permit.

(Ord. 321, § 1(part), 1999)

adjoining property.

Where a permit is issued pursuant to the provisions of this chapter, authorizing construction or excavation work within a public right-of-way or public service easement to be undertaken and performed by a person owning the property adjoining that portion of the public right-of-way or public service easement in which the work is to be performed, the permittee may comply with the liability insurance requirements of this chapter by filing with the public works director/town engineer a copy of the permittee's homeowner's insurance policy with liability limits of at least three hundred thousand dollars, in lieu of the comprehensive general liability insurance required by Section 12.14.150 of this chapter.

(Ord. 321, § 1(part), 1999)

As a further condition of the issuance of a permit required by this chapter, the permittee shall undertake and carry out the encroachment or excavation authorized by such permit in accordance with the provisions of the state of California Manual of Traffic Controls for Construction and Maintenance Work Zones as published by the State Department of Transportation and/or any additions or modifications thereto now or hereafter adopted.

(Ord. 321, § 1(part), 1999)

other security.

A.

Security requirements. Except as hereinafter provided by this chapter, no permit shall be issued pursuant to the provisions of this chapter, authorizing construction or excavation work within a public right-of-way or public service easement unless and until the permittee has obtained and provided to the town a surety bond or other security guaranteeing performance by permittee of all of permittee's duties and obligations under such permit including, in particular, the duty and obligation to restore the site of the construction or excavation work to the same condition as it was in prior to commencement of the construction or excavation work, or such modified condition as has been approved by the public works department.

B.

Amount of security. The surety bond or other security obtained and provided by a permittee at the time of the issuance of a permit pursuant to the provisions of this chapter authorizing construction or excavation work on or within a public right-of-way or public service easement shall be in the amount of at least ten thousand dollars; except that where the public works director/town engineer determines that the work performed pursuant to such permit is extensive and would expose the town to costs substantially in excess of ten thousand dollars to remedy any breach by the permittee in the permittee's duties and obligations to restore the public right-of-way or public service easement to the same condition as it was in prior to the commencement of the construction or excavation work or such modified condition as approved by the public works director/town engineer, then the surety bond or other security shall be in an amount which the public works director/town engineer determines is necessary to fully cover the town's exposure to all such costs.

C.

Form of security. The surety bond obtained and provided by a permittee at the time of issuance of a permit pursuant to the provisions of this chapter authorizing an encroachment or excavation within a public right- of-way or public service easement shall be conditioned on the permittee's compliance with all requirements of this chapter, including all orders of the public works director/town engineer pertaining thereto, and shall otherwise be in a form approved by the town attorney. In lieu of a surety bond, a permittee may obtain and provide to the town a cash deposit, certificate of deposit naming the town as the payee thereof or such other kind of security acceptable to the town manager, provided such cash deposit, certificate of deposit or the security is accompanied by an agreement stating that the security is being pledged to guarantee performance of the permittee's duties and obligations under the permit issued to permittee pursuant to this chapter, which pledge agreement shall also be in a form approved by the town attorney.

(Ord. 321, § 1(part), 1999)

bond or other security for permittees owning adjoining property.

Where a permit is issued pursuant to the provisions of this chapter authorizing construction or excavation work within a public right-of-way or public service easement to be undertaken and performed by a person who owns property adjoining that portion of the public right-of-way or public service easement in which the work is to be performed, the surety bond or other security requirements of this chapter shall be waived.

(Ord. 321, § 1(part), 1999)

construction or excavation work.

As a further condition of the issuance of a permit required by this chapter authorizing construction or excavation work within a public right-of-way or public service easement, the permittee shall design, undertake and complete such work in the following manner:

A.

All public improvements constructed or installed within a public right-of-way pursuant to such permit shall be designed, constructed and installed in accordance with the design criteria and improvement standards adopted by the town.

B.

Upon the commencement of construction or excavation work authorized by a permit, such work shall be prosecuted with due diligence and in a manner that does not obstruct or interfere with a public street, public utilities or other facilities located within a public right-of-way or public service easement any more than is absolutely necessary.

C.

Upon completion of construction or excavation work authorized by a permit, the public right-of-way or public service easement in which such work was performed shall be restored to the same condition as it was in prior to commencement of the work or such modified condition as has been expressly approved by

the public works director/town engineer. All surplus soils or waste materials removed from the public right- of-way or public service easement shall be deposited, removed or handled as required by applicable federal, state and city laws and regulations.

D.

At the conclusion of construction or excavation work authorized by such permit, the permittee shall file with the public works director/town engineer such "as-built" plans and specifications as may be required by the public works director/town engineer depicting any new improvements or facilities or any modifications to existing improvements or facilities which were constructed or installed in the public right-of-way or public service easement pursuant to such permit.

E.

In any case in which the street, sidewalk or other public right-of-way is caused to be excavated, the permittee shall restore such excavation to like new condition in the manner prescribed by the standard plans and specifications, orders, rules and regulations of the public works department. As a minimum, trench restoration shall include resurfacing to a constant width equal to the widest part of the trench excavation. All final resurfacing shall be completed within thirty days of completion of excavation, weather permitting, unless otherwise specified on the approved encroachment permit.

(Ord. 321, § 1(part), 1999)

When acting on a permit required by this chapter, the public works director/town engineer may condition the issuance of such permit on compliance with any special requirements which the public works director/town engineer determines are necessary in order to ensure that such encroachment or excavation will be carried out in a manner that does not threaten the safety of persons or property and in a manner that will not unreasonably interfere with the use by the town or general public of any public right-of-way or public service easement and/or any public or private property adjoining or in the vicinity of the public right- of-way or public service easement in which the encroachment or excavation is to be made.

(Ord. 321, § 1(part), 1999)

A.

Determination of public works director/town engineer to order work to be stopped. Whenever the public works director/town engineer determines that an encroachment or excavation made within a public right- of-way or public service easement pursuant to a permit issued in the manner provided by this chapter has been undertaken or is being carried out in a manner which threatens the public safety, unreasonably interferes with the use of such public right-of-way or public service easement or any property adjoining and in the vicinity thereof, or damages or threatens to damage other facilities located within the public right-of- way or public service easement in a manner not authorized by the permit, the public works director/town engineer may, by service and posting of the notice required by this section, order such work to be stopped.

B.

Service of notice of order to stop work. Upon determining to order the stoppage of work undertaken or being carried out pursuant to a permit issued in the manner provided by this chapter, the public works director/town engineer shall cause a written notice of such order to be served on the person to whom the permit was issued and on any person known to the public works director/town engineer to be engaged in such work if such person is someone other than the person to whom the permit was issued. In addition to setting forth the order of the public works director/town engineer to stop work, such notice shall contain a brief description of the reasons why such work is being ordered stopped and the action, if any, which may be taken in order that the work may be resumed; shall contain a statement of the right of the person to whom the permit was issued to apply for administrative review of the order and to appeal the order in the manner provided by this chapter, and shall advise the person upon whom the notice is served that unless authorized by the public works director/town engineer, any further work performed pursuant to such permit may subject such person to the misdemeanor penalties hereinafter provided for in this chapter.

C.

Posting of order to stop work. Upon determining to order the stoppage of work undertaken or carried out pursuant to a permit issued in the manner provided by this chapter, the public works director/town engineer shall also cause a written notice of such order to be posted in a conspicuous place within the public right- of-way or public service easement in which such work is being performed. In addition to setting forth the order of the public works director/town engineer to stop work, such notice shall state that it is a misdemeanor for such person to perform any further work without authorization of the public works director/town engineer or to remove or deface the posted notice of such order.

D.

Effect of an order to stop work. No permittee or other person served with a notice of the public works director/town engineer to stop work undertaken or carried out pursuant to a permit issued in the manner provided by this chapter shall cause or allow such work to be performed or continued.

(Ord. 321, § 1(part), 1999)

A.

Determination by the public works director/town engineer to order the revocation of a permit. Whenever the public works director/town engineer determines that an encroachment or excavation made within a public right-of-way or public service easement pursuant to a permit issued in the manner provided by this chapter has been undertaken or is being carried out in a manner that violates the terms or conditions of such permit or that the permit was issued based on a permit application or plans and specifications which contained a material misrepresentation of fact, the public works director/town engineer, may, by service of the notice required by this section, order the revocation of the permit.

B.

Service of notice of order revoking a permit. Upon determining to order the revocation of a permit issued in the manner provided by this chapter, the public works director/town engineer shall cause written notice of such order to be served on the person to whom the permit was issued. In addition to setting forth the order of the public works director/town engineer revoking such permit, such notice shall contain a brief description of the reasons why the permit is being revoked and shall contain a statement of the right of the person upon whom the notice is served to apply for administrative review of the order and to appeal the order in the manner provided by this chapter.

C.

Effect of order revoking a permit. The permittee or other person served with a notice of the order of the public works director/town engineer revoking a permit issued pursuant to the provisions of this chapter shall promptly terminate the encroachment or excavation authorized by such permit and restore the public right-of-way or public service easement in which such encroachment or excavation was undertaken or carried out to the same condition as it was in prior to commencement of the encroachment or excavation, or such modified condition as may be approved by the public works director/town engineer.

(Ord. 321, § 1(part), 1999)

A.

Determination of the public works director/town engineer to perform removal and restoration work. Where the public works director/town engineer determines that an encroachment or excavation has been made in a public right-of-way or public service easement without a permit required by this chapter, or in violation or contrary to the terms and conditions of a permit or order issued pursuant to this chapter, or in any manner that endangers the safety of persons or property, the public works director/town engineer may remove such encroachment, refill such excavation and/or restore such public right-of-way or public service easement to the same or substantially the same condition as it was in prior to commencement of such encroachment or excavation, all for the account of and at the cost of the permittee or other person having made the encroachment or excavation, after service of any notice required by this chapter.

B.

Service of notice of intent to undertake removal and/or restoration work. Upon determining to remove an encroachment, refill an excavation and/or perform restoration work in public right-of-way or public service easement, the public works director/town engineer shall cause written notice of such determination to be served on any person having undertaken the encroachment or excavation pursuant to a permit issued in the manner provided by this chapter. In addition to setting forth the intent of the public works director/town engineer to perform such work, such notice shall set forth the reasons for undertaking such work and shall state that the permittee shall be liable for the full cost thereof. Except where the work to be performed by the public works director/town engineer is necessary to remove or remedy the condition which threatens the safety of persons or property, such notice shall also offer to the permittee the right to immediately undertake such work, at the permittee's sole cost and expense, provided the work is completed by the permittee within a reasonable time as determined by the public works director/town engineer and set forth in the notice.

C.

Liability for cost of removal or restoration work. Any permittee or other person having caused the encroachment or excavation which results in the performance of removal or restoration work by the public works director/town engineer in the manner provided by this section shall, upon completion of such removal or restoration work, be liable to the town for the full cost thereof. In addition, where a surety bond or other security has been provided to the town as a condition of a permit authorizing construction or excavation work within a public right-of-way or public service easement, such surety or other security shall be liable to the town for the cost of such work to the full amount of the surety bond or other security.

D.

Repair of sunken pavement over excavation. If the pavement or the surface of the public right-of-way or public service easement over any excavation should become depressed or broken at any time within one year after the excavation has been completed and before resurfacing of such area, natural wear of the surface excepted, the permittee shall, upon written notice from the town, 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 town, within such time period as may be specified by the town. If the pavement is not restored as specified by the town, and unless delayed by a strike or conditions beyond permittee's control, the town may cause the work to be done after giving the permittee twenty-four hours final notice. The cost thereof including any inspection costs and administrative overhead incurred by the town, shall be assessed against the permittee. After the cost is paid by the permittee to the town, the town shall be responsible for any future repairs of that portion of pavement repaired by the town.

(Ord. 321, § 1(part), 1999)

Nothing contained in this chapter shall be construed to prevent any person from taking any action necessary for the preservation of persons or property when such necessity arises during days or times when the public works department is closed. In the event that any person takes any action to excavate or cause to be excavated the public right-of-way pursuant to this chapter, such person shall apply for an emergency permit within four hours after the public works department's offices are first opened. The applicant for an emergency permit shall submit a written statement of the basis of the emergency action and describe the work performed.

(Ord. 321, § 1(part), 1999)

Permission to excavate in newly renovated streets shall not be granted for three years after completion of street renovation as shown by the filing of a notice of completion. Utilities shall determine alternate methods of making necessary repairs to avoid excavating in newly renovated streets. Exceptions to the above are as follows:

A.

Emergency endangering persons or property;

B.

Interruption of essential utility service;

C.

Work mandated by city, state or federal legislation;

D.

Service for buildings where no other reasonable means of providing service exists;

E.

Other situations deemed by the town council to be in the best interest of the general public.

All permits which are issued under subsections A through E of this section shall be in accordance with the standards, details and specifications established by and on file in the office of the public works director/town engineer.

(Ord. 321, § 1(part), 1999)

Any violation of the provisions of this chapter shall be an infraction which is punishable by a fine in an amount set forth in California Government Code Section 36900; except that a violation of an order revoking a permit, or an order to stop work or the removal or defacement of a notice of such order posted by the public works director/town engineer in the manner provided by this chapter shall be a misdemeanor punishable by imprisonment in the county jail for a period not to exceed six months or by a fine not exceeding one thousand dollars.

(Ord. 321, § 1(part), 1999)