Pinole Municipal Code Ch. 12.04 Encroachments into Public Right-of-Way

* For statutory provisions authorizing cities to prohibit and prevent encroachment on public ways, see Gov. Code § 38775.

The following words and phrases, whenever used in this chapter, shall be construed as hereafter set out, unless it is apparent that they have a different meaning:

A. CITY ENGINEER. The city engineer of the city of Pinole, or his or her authorized representative.

B. EMERGENCY STREET CUT. Any street cut by a utility to repair a facility within the right-of-way to remediate an immediate hazard or danger to life, health or property, as determined at the sole discretion of the city engineer.

C. ENCROACHMENT or ENCROACH. Any tower, pole, pole line, pipe, pipeline, driveway, private road, fence, sign, billboard, stand or building, or any structure or object of any kind or character not particularly mentioned herein, which is placed in, under or over any portion of the public right-of-way or natural water course, temporarily or permanently.

D. EXCAVATION. Any operation in which earth, rock, asphalt, concrete, or other material in the ground is moved, removed, or otherwise displaced by means of tools, equipment, or explosives in any of the following ways: grading, sawcutting, trenching, digging, ditching, drilling, auguring, tunneling, scraping, boring, cable or pipe plowing and driving or any other way.

E. PERMITTEE. Any person, firm, corporation, public agency, or utility which proposes to do work or encroach upon a right-of-way or water course and has been issued a permit for such encroachment by the city engineer.

F. PUBLIC AGENCY. Any city, county, state, or other public entity.

G. RIGHT-OF-WAY. Land which by deed, conveyance, agreement, easement, dedication, usage or process of law is reserved for and dedicated to the city of the general public for street, highway, alley, pedestrian walkway, storm drainage or other purposes.

H. UTILITY. Any entity constituting a public utility under state law or private entity regulated by the California Public Utilities Commission.

I. STREET or CITY STREET. Includes all or any part of the entire width of the right-of-way of a city street whether or not such entire area is actually used for street purposes. (Ord. 2022-03 § 2 (part), 2022; Ord. 217 § 1, 1965).

A permit is required for all encroachments as defined in this chapter except work covered by exemptions.

A. Encroachment permits shall be issued by the city engineer upon such conditions the city engineer deems necessary to protect the public interest, safety and welfare. The city engineer may issue written permits as provided in this chapter authorizing the permittee to do any of the following acts:

1. Make an opening or excavation for any purpose in the city street;

2. Plant, remove, cut, cut down, injure or destroy any tree, shrub, plant or flower growing with any city street;

3. Repair or construct, or cause to be repaired or constructed, by private contract, any concrete sidewalk, concrete driveway, concrete curb and gutter, or to cut any curb for the purpose of constructing a driveway, or to begin the excavation for the purpose of constructing a sidewalk, driveway, or curb and gutter.

B. When sidewalks, driveways, curbs, and gutters, or a combination thereof, are repaired or constructed by a contractor at the same time and at the same location, a separate permit shall be required for each ownership.

C. Except as otherwise provided in Section 12.04.030, it is unlawful for any person to encroach or to make or to cause to be made any encroachment without first having obtained an encroachment permit from the city engineer.

D. No person shall make a right-of-way encroachment or cause any street cut to be made without having secured the proper permit two working days in advance of the date specified to begin work, except when an emergency street cut is necessary. All work shall be performed in strict compliance with the terms and conditions of the permit. The permittee shall notify the city at least two working days prior to start of work and at that time shall provide a project schedule. The permittee shall notify the police department if the work might impede the passage of emergency vehicles.

E. All obligations, responsibilities and other requirements of the permittee as described in this chapter shall be binding on the subsequent owners of the encroachment.

F. Any encroachment for which a permit is required and for which no permit has been issued pursuant to this chapter shall be deemed a public nuisance which may be abated by the city pursuant to this code.

(Ord. 2022-03 § 2 (part), 2022; Ord. 217 § 2, 1965).

The provisions of this chapter shall not apply to:

A. Officers or employees of the city acting in the discharge of their official duties;

B. Any work being performed by any person pursuant to a contract with the city;

C. The making of an emergency street cut by a utility to repair a broken or defective pipe, facility or conduit lawfully on or under a public street, or excavating by a utility as may be necessary for the preservation of life and property when an urgent necessity therefor arises when the offices of the city are closed. Any utility making such street cut shall apply for an emergency encroachment permit on the next city business day. The issuance of such permit shall be at the sole discretion of the city engineer. If the emergency street cut is performed during business hours, the permittee shall attempt to reach the city engineer by telephone in advance of the work. All provisions of this chapter for the protection of the public and governing repairs to the public way apply to the same extent as where applications and permits are required. (Ord. 2022-03 § 2 (part), 2022).

Fees for processing or issuance of any permits pursuant to this chapter shall be set forth in the city's master fee schedule, as adopted by resolution of the city council. (Ord. 2022-03 § 2 (part), 2022; Ord. 217 § 3, 1965).

A. An application for a permit required pursuant to this chapter must be made in writing on a form supplied by the city engineer.

B. The city engineer will only review and approve an application for an encroachment permit if the proposed work will not significantly damage the public right-of-way or create an unreasonable risk of harm to persons or property, or the approval of the application is in the public interest. No permit shall be valid unless signed by the city engineer or his or her designee.

C. Notwithstanding subsection B of this section, the city engineer may approve an encroachment permit application subject to conditions, including measures to protect the traveling public, if the city engineer determines that by doing so it would be in the public interest, no significant damage to the public right-of-way would be created, and no unreasonable risk of harm to persons or property would be created. Nothing in this subsection requires the city engineer to approve an application subject to conditions.

D. Notwithstanding the provisions of subsection B of this section, the city engineer will approve an encroachment permit application, subject to conditions, for any public agency or utility with lawful authority to occupy the public right-of-way and authorized by law to establish or maintain any works or facilities in, over, or under any public right-of-way. This subsection does not apply to any public agency or utility acting outside of its boundaries. Any encroachment permit issued to a public agency or public utility pursuant to this section is conditioned on a requirement that the permit must relocate its encroachment and its sole expense if future improvement of the public right-of-way necessitates such relocation.

E. Any permit issued pursuant to this chapter is subject to the following conditions:

1. That if the permit expires, is revoked by the city, or the public right-of-way is vacated or abandoned, the permittee will, immediately onto the satisfaction of the city engineer, restore the public right-of-way to the same or better condition than it was on the date that the permit was issued;

2. That the permittee indemnifies and holds harmless the city and any officer or employee from any liability or responsibility for any accident, loss or damage to persons or property, happening or occurring resulting from any placement, change or renewal of any encroachment and that all of the liabilities are assumed by the permittee;

3. That the permittee and any successors, at their own expense, remove or relocate any encroachment that interferes with the improvement, grading or realignment of the public right-of-way by the city or other city project.

F. 1. For any work performed within the public right-of-way, the applicant, his or her contractor, and/or the contractor's sub-contractor(s) shall possess valid contractor license(s) issued by the State of California. This ensures the quality and aesthetics of work performed. The following licenses are acceptable:

2. Contractors working within the public right-of-way shall also possess a valid city of Pinole business license at the time of application.

G. Permits will be valid for sixty calendar days from date of issuance unless specified otherwise in Encroachment Permit Special Conditions or extended in writing by the city engineer. Encroachment permits issued in conjunction with a building permit are bound by the expiration date of the building permit, unless otherwise stated in the Encroachment Permit Special Conditions.

H. Permits are non-exclusive. If a conflict with an existing facility or improvement is discovered during the course of work, the permittee must arrange with the owner of the facility or improvement for any necessary removal or relocation of the facility or improvement. Any and all associated cost for the removal or a relocation will be the responsibility of the permittee. The improvements installed by permittee will be subject to and subordinate to the city's use of the property.

I. Permits issued under this chapter are non-transferable and revocable by the city without cause. Non-compliance with this chapter, general and special conditions of the permit are all grounds for revocation.

J. Permittee shall, whenever required, secure the written authorization for any work that must be approved by the California Public Utilities Commission (PUC), CAL-OSHA, Caltrans, or any other regional/state agencies as required by law. Failure to comply with the law, as noted above, will invalidate the city's encroachment permit. A copy of such permit shall be attached to the encroachment permit. Permittee shall be liable and shall indemnify the city of Pinole for any and all violations, consequences, mitigations, fees, and penalties that these agencies may impose that are caused directly or indirectly by the proposed work.

K. The issuance of a permit does not constitute a lease, deed, or grant of easement, or a fee interest by the city. (Ord. 2022-03 § 2 (part), 2022).

All contractors working within the right-of-way shall procure and maintain for the duration of the work insurance against claims from injuries to persons or damages to property which may arise from the performance of work. Policy must name the city of Pinole, its elected officials, officers, boards, commissions, employees, and agents are additional insured and provide for a thirty-day notice of cancellation. The Contractor is required to maintain workers' compensation insurance as required by the state of California and employer's liability insurance. The contractor shall maintain limits no less than:

A. General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage including operations, products and completed operations, as applicable. If commercial general liability insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

B. Auto Liability: $2,000,000 per accident for bodily injury and property damage.

C. Employer's Liability: $1,000,000 per accident for bodily injury or disease. (Ord. 2022-03 § 2 (part), 2022).

A. All work, unless otherwise specified, shall be done in accordance with the current edition of the Caltrans Standard Plans and Specifications and the Contra Costa County Standard Plans. Caltrans and Americans with Disabilities Act standards apply where applicable.

B. If work is not being conducted in a safe manner, or is not in conformance with the approved design, specifications and standards, or with other conditions of the permit, the city may issue a stop work order. Permit holder shall indicate to the city how he or she plans to remedy the violation, and shall not resume work or make corrections until the city releases the stop work order in writing. The city reserves the right to add or modify conditions to the initial permit in order to prevent future violations.

C. All work authorized by the permit shall be performed in a good and workmanlike, diligent, and expeditious manner, and must be completed to the satisfaction of the city engineer.

D. Permittee shall restore trenches and street surfaces in accordance with city requirements, including achieving the required compaction of all trench and surface sections. At the city's discretion, compaction testing may be required. A two-sack sand slurry mixture may be required for compaction where excavation interferes with traffic flow or where work is within the roadway portion of an intersection. Permittee shall acquire and pay for all services needed to perform the required compaction test and retest until the desired compaction is achieved.

E. Any street paved or resurfaced in the previous thirty-six months shall be termed "prohibition streets" and shall be subject to special paving requirements.

F. During construction or installation, permittee shall maintain the site in a safe and clean condition, free of dust, debris, dirt, siltation, concentrated runoff, and other nuisances. Noise shall be kept to a minimum. Excavations shall be covered and/or barricaded at the city's direction at the end of each work day. Barricades and reflectors shall be used to mark obstructions. All barricades must have portable flashers unless otherwise specified. Access to adjacent properties shall not be unreasonably restricted. Excavations for sidewalks may remain open for up to two days with proper barricades. Excavations for driveway approaches may remain open for up to two days with proper barricades and permission of property owner.

G. Per city of Pinole Municipal Code Chapter 8.20, permittee shall implement and maintain measures to keep sediment, wash waters, equipment maintenance products, and other construction related materials debris from entering the storm drainage system. Dumping or discharge into the city's storm drainage system is prohibited. Measures to protect the storm drainage system shall be in place prior to start of work. Permittee shall implement the Contra Costa Clean Water Program's Pollution Prevention Program Best Management Practice (BMP) guidelines.

H. In every case, the permittee shall be responsible for restoring to its former condition as nearly as may be possible any portion of the city right-of-way which has been excavated or otherwise distributed by permittee. The permittee shall maintain the surface over facilities placed under any permit. If the right-of-way is not restored as herein provided, and if the city elects to make repairs, permittee agrees by acceptance of permit to bear the cost of the restoration work. Plan shall also include work days, duration and hours of operation, and impacts on and provisions for on-street parking. Incomplete plans will be rejected.

I. If any future construction, reconstruction, or maintenance work by the city or required by the city on a street requires the relocation, removal, or abandonment of installations or encroachments in, on, over, or under a street, the permittee owning, controlling, or maintaining such installations or encroachments shall relocate, remove, or abandon the same at his or her sole expense unless otherwise required by law. When removal, relocation, or abandonment is required, the city engineer shall give such permittee a written demand specifying the place of relocation, or that the installations or encroachment must be removed or abandoned. If said permittee fails to comply with said instructions, the city may cause the removal, relocation, or abandonment of the encroachment at the expense of the permittee.

J. The permittee shall ascertain the exact location of all underground facilities prior to doing work that may be damaged during construction. The permittee is responsible for verifying that all utilities including water, cable TV, electrical, gas, telephone, sewer, fiber optic, gasoline and other city facilities are clear, protected, or relocated from the area of work prior to construction. Forty-eight hours before commencing work, the permittee shall contact Underground Service Alert (USA) at 811, 1-800-227-2600, or online at usanorth811.org to verify elevations and locations of all existing utilities. Additional potholing of critical utilities shall be performed by permittee at permittee's expense if there is uncertainty regarding possible conflicts.

K. Permittee shall remove all painted utility markings associated with the project when the job is completed at the city's direction. Depending on the location, the city may require applicant to ensure a uniform right-of-way appearance after the markings are removed. This may include, but is not limited to, cleaning an entire flag of sidewalk or asphalt.

L. Permittee shall adhere to the pavement restoration regulations established in Section 12.04.090.

M. If all the construction and/or repair work is not completed within the time limit set on the permit, the city engineer is authorized to have the same done at the expense of the permittee. No new permits shall be issued to an individual or company who has not reimbursed the city for all of its expenses in completing work under this provision.

N. A permit shall become void if work is not commenced within thirty calendar days of its issue.

O. The permittee shall call for and secure a preliminary inspection of grading and form work before placing any concrete, and he or she shall call for a final inspection upon completion of the work. The permittee shall be responsible for removing all surplus and waste material from the job site and for the restoration of the work area to a clean and satisfactory condition.

P. The city engineer shall have the power and authority to determine that the use for which a driveway was constructed has been abandoned, and give written notice requiring that the curb and gutter and sidewalk shall be constructed to grade. (Ord. 2022-03 § 2 (part), 2022; Ord. 217 § 6, 1965).

A. All occupation of street parking spaces by permittee shall be approved by city in the encroachment permit.

B. Any occupancy of parking spaces should occupy only the parking lane (width of eight feet or less), shall occupy the minimal necessary length, shall not block gutter drainage flow, and shall not restrict flow of adjacent street traffic or provide an unsafe condition for vehicular traffic due to reduced lane width or impaired visibility.

C. All occupancies in the parking area shall be fitted with reflectors on the structure or on barricades.

D. The city may place restrictions on the duration of all such occupancies.

E. Permittee agrees to pay for utilization of any metered parking for as long as the parking spaces are not available for public use. The fees shall be based on the current meter rate or fee schedule.

F. For non-metered public parking spaces utilized during construction, the permittee shall place temporary "No Parking" signs. (Ord. 2022-03 § 2 (part), 2022).

A. The final appearance of the street after the repairs are made should be acceptable with an engineered appearance. Street repairs that are satisfactory from a functional point of view may produce a negative reaction from the public if they give the appearance of being poorly planned or executed. The public's perception of street repairs is based primarily on shape, size, orientation, and the geometry of the patch.

B. Street repairs should leave a pavement in a condition at least as good as, if not better than, the condition prior to the repairs. In the case of major projects that involve excessive haul of materials or unusually heavy construction equipment or activity, non-destructive testing of the pavement condition before and after construction may be required at the city's discretion.

C. Excavations and street repairs, even well-constructed street repairs, shorten a pavement's life. Several types of street distress, settlement, alligator cracking, and potholes, often show up around patches. Quality street repairs should attempt to reduce the occurrence of these types of distress.

D. Avoid weakening or destroying the existing pavement around an excavation with heavy construction equipment, stockpiling, or delivery of materials, etc. When damage does occur, remove the damaged pavement, extending the limits of the street repair, before replacing the pavement. No stockpiling of backfill or road building materials is permitted on the pavement.

E. Contractors must adhere to the following pavement restoration guidelines:

1. Pavement shall be cut to a single, vertical line prior to excavation.

2. All excavated material shall be removed from the job site within twenty-four hours.

3. Any trench extending from the curb into the parking lane will require a complete two inch grind and overlay of the parking lane for twenty-five feet in each direction. All trenches extending into the traveled lane transversely will require the entire length of the trench up to the nearest lane line to be cold milled two inches and overlaid twenty-four feet in both directions from the center line of the trench.

4. Every trench must be backfilled or covered by trench plates the same day. Trenches can be backfilled with class 2 aggregate base as specified in the Caltrans Standard Specifications, Section 26, "Aggregate Base."

5. After a trench has been backfilled, and immediately prior to placing asphalt concrete, the existing asphalt concrete shall be saw cut, or milled to a vertical face. The cut shall be a "T-cut" and the new asphalt concrete paving shall be butt joined to the existing asphalt concrete vertical face. No feathering of new paving to existing paving is allowed. The vertical faces shall be tack coated.

6. In prohibition streets, placement of the final two inches of asphalt concrete wearing surface shall be done by a paving machine or a spreader box.

7. To allow for proper placement of the new pavement section, damaged pavement outside of the original trench cut lines shall be removed by cutting in lines perpendicular to or parallel to the original trench lines. No diagonal cuts are to be made. Undamaged pavement of three feet or less between two damaged areas shall also be removed.

8. For trenches in recently paved prohibition streets, the entire lane shall be key-cut two inches deep, and repaved with asphalt concrete unless the engineer gives written authorization to resurface with a polymer modified slurry seal instead. Authorization from the engineer to use slurry seal instead of asphalt concrete shall set forth the reasons for the authorization.

9. For trenches in recently slurry sealed prohibition streets, the entire lane shall be resurfaced with polymer modified slurry seal.

10. Trenches in concrete streets shall be repaved with concrete. The thickness of the new pavement shall be equal to the thickness of the existing pavement with the minimum thickness to be six inches in the roadway.

11. Trenches in arterial and collector streets shall be paved with not less than six inches asphalt concrete or match the existing pavement thickness (whichever is greater).

12. Pavement shall be restored within fourteen working days from the time the entire trench is backfilled, unless delay is excused due to circumstances beyond the contractor's control, such as inclement weather. For minor excavations such as service installations, the pavement shall be restored with in thirty working days from the time the entire trench is backfilled, unless delay is excused due to circumstances beyond the contractor's control, such as inclement weather.

13. Asphalt pavement shall be compacted to obtain a minimum of ninety-five percent relative compaction. The asphalt concrete wearing surface shall have no irregularity greater than five-sixteenths of an inch in ten feet in any direction.

14. On all streets steel plates shall be used to facilitate traffic flow and to protect the excavation until finish pavement is restored. Steel plates used to bridge a street opening shall be ramped to the elevation on the adjacent pavement and secured against movement in any direction. Temporary ramps shall be constructed of asphalt and shall have a gradual 30:1 slope or flatter using asphalt cutback.

15. All painted USA markings shall be removed by the permittee after the work has been completed.

16. All damaged pavement markings and striping shall be replaced and restored by the permittee.

F. Example of Repair Details.

1. Existing pavements should be removed to clean, straight lines parallel and perpendicular to the flow of traffic. Do not construct patches with angled sides and irregular shapes. All patches that exceed fifty percent of the transverse pavement width shall be full lane width and the non-patched areas shall be milled and resurfaced.

[Figure]

2. Avoid patches within existing patches. If this cannot be avoided, make the boundaries of the patches coincide. All repairs should be full lane width.

[Figure]

3. Do not leave strips of pavement less than one-half lane in width from the edge of the new patch to the edge of an existing patch or the lip of the gutter.

[Figure]

4. In concrete pavements, remove sections to existing joints, or new saw cut joints at midslab, that is in good repair. In damaged concrete, the limits of removal should be determined in the field by city inspector.

[Figure]

5. Asphalt and concrete pavements should be removed by saw cutting or grinding. Avoid breaking away the edges of the existing pavement or damaging the remaining pavement with heavy construction equipment. Patches should have a smooth longitudinal grade consistent with the existing roadway. Patches should also have a cross slope or cross section consistent with the design of the existing roadway.

[Figure]

6. In the case of a series of patches or patches for service lines off a main trench, repair the pavement over the patches by grinding and overlay when the spacing between the patches is less than ten feet. In cases where the existing pavement is in poor condition (in the upcoming years resurfacing contract) and may require overlay within the next few years, this requirement may be modified or waived by the city engineer.

[Figure]

7. A patch should provide a smooth ride with smooth transitions on and off the repair and all joints should be located outside the wheel path. Overlays should be placed by first removing the existing pavement to the desired depth by grinding or milling, and then placing the pavement flush with the adjacent surfaces.

[Figure]

8. Surface tolerances for street repairs shall meet the standards for new construction. The finished surface of the pavement repair should be tested with a ten foot straightedge parallel to the centerline or perpendicular across joints. Variations measured from the testing face of the straightedge to the surface of the street repair should not exceed one-quarter inch.

[Figure]

9. Transverse patches on arterial and collector streets shall be overlaid across the entire street width for a distance of two feet minimum on all sides of the trench using a T-patch.

[Figure]

10. Do not allow the edges of patches to fall in existing wheel paths. The edges of patches parallel to the direction of traffic shall be limited to the boundaries of lanes or to the centerline of travel lanes.

[Figure]

11. When the proposed excavation falls within ten feet of a section of pavement damaged during the utility repair, the failed area shall be removed to sound pavement and patched. Scarring, gouging, or other damaged pavement adjacent to a patch shall be removed and the pavement repaired to the satisfaction of the city inspector. Damaged pavement within ten feet of a patch must also be patched.

[Figure]

12. Patches must avoid frequent width changes.

[Figure]

(Ord. 2022-03 § 2 (part), 2022).

A. Permittee shall notify the city forty-eight hours prior to starting work under the permit.

B. Permittee shall not work on Saturdays, Sundays, city of Pinole holidays nor between the hours of 5:00 p.m. and 8:00 a.m. without the written permission of the city engineer.

C. All work shall be subject to monitoring, inspection, and approval by the city. It is the permittee's obligation to determine from the inspector what stages of frequency of inspection will be required. Requests for inspection shall be made at least 48 hours in advance. All form work and subgrade shall be inspected by the city prior to the placement of concrete or asphalt concrete. All pipelines and other underground facilities shall be inspected by the city prior to covering. Permittee shall request a final inspection and acceptance of the work.

D. All work shall be planned and carried out with the least possible inconvenience to traveling public. The permittee shall assign properly trained and attired flagger(s) to direct traffic. Traffic shall not be unreasonably delayed. Flagging operations shall be in conformance with the Traffic Manual, flagging control chapter. Construction operations shall be conducted in such a manner as to cause as little inconvenience as possible to the abutting property owners. All work shall be subject to suspension if traffic delays are excessive.

E. Contractor shall request and obtain approval from the city engineer before any lane closures are implemented. Road closures shall not be permitted unless approved in writing by the city engineer. No open excavation shall be left unattended at any time.

F. Upon completion of the work, all brush, timber, scraps, material, etc., shall be entirely removed and the right-of-way shall be left in as presentable a condition as existed before work started. Removal of the encroachment shall be at applicant's expense and public facilities shall be restored to the satisfaction of the city engineer.

G. Permittee will properly maintain any encroachment in a safe and aesthetically acceptable condition for the duration of the occupancy. Inspection and repair of any damaged city facility resulting from the work under the permit shall be at the expense of the permittee.

(Ord. 2022-03 § 2 (part), 2022; Ord. 217 § 9, 1965).

Any person, firm or corporation violating any of the provisions of this chapter, or of the codes adopted under this chapter, shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be punishable by a fine of not more than five hundred dollars or by imprisonment in the county jail for not more than six months or by both such fine and imprisonment. (Ord. 2022-03 § 2 (part), 2022; Ord. 217 § 10, 1965).