This chapter may be cited as the "Right-of-Way Permit and Encroachment
Agreement."
(Ord. 45 § X.1,
2009; Ord. 47 § X.1, 2019; Ord. 49, 7/16/2024)
The following words shall have the following meanings and set
out in this chapter:
means and includes any tower, pole, pole line, pipeline,
fence, billboard, stand or building, or any structure, or pavement
of any kind or character whether or not it is particularly mentioned
in this subsection, which is placed in under or over any portion of
a CMWD right-of-way.
means the document developed and approved by the Public Works
Director describing the nature and extent of works proposed to be
constructed or carried out on a CMWD right-of-way.
means any CMWD real property easement, CMWD interest in real
property or public utility easement used by the CMWD.
means the Standard Specifications used for public works construction
(current edition including supplements) written and promulgated by
the Southern California Chapter of American Public Works Association
and Southern California District Associated General Contractors or
California Joint Cooperative Committee and published by Building News
Incorporated or other such specifications noted on approved plans
including CMWD standard drawings and specifications.
means the standard drawings of the Carlsbad Municipal Water
District, adopted and revised by the Public Works Director and most
recently adopted San Diego Regional Standard Drawings.
(Ord. 45 § X.2,
2009; Ord. 47 § X.2, 2019; Ord. 49, 7/16/2024)
This chapter shall be administered by the City of Carlsbad's
Public Works Director who shall have the responsibility and authority
to:
A.
Establish the form and procedures for application for encroachment
permits required pursuant to this title including the certification
of completed applications, the approval of plans, the establishment
of files, collection of fees and security deposits;
B.
Interpret provisions of this title and advise the public regarding
requirements for plans, specifications, and special provisions for
facilities or encroachments subject to the provisions of this title;
C.
Establish the format and content of plans and standards governing
work on facilities or encroachments pursuant to the provision of this
chapter;
D.
Issue permits upon such conditions as determined are reasonable and
necessary to protect the public health, safety, and welfare;
E.
Amend any permit issued when determined that such amendment is necessary
to provide for the safe and efficient movement of traffic, or protect
CMWD facilities, persons, or property.
(Ord. 45 § X.3,
2009; Ord. 47 § X.3, 2019; Ord. 49, 7/16/2024)
No person shall do any of the following acts without first obtaining
a valid right-of-way permit and encroachment agreement:
A.
Make or cause to be made excavation or opening, fill or obstruction
in, over, along, across, or through any CMWD right-of-way for any
purpose whatsoever;
B.
Construct or repair or cause to be constructed or repaired any curb,
sidewalk, gutter, curb with integral gutter, drive approach, driveway,
alley approach, spandrel and cross gutter, wheelchair ramp, structure,
planter, wire, pipe, or vault over, along, across, overhanging, or
through any CMWD right-of-way;
C.
Plant any tree, plant, shrub, or flower within any CMWD right-of-way;
D.
Construct or modify or cause to be constructed or modified, any storm
drain or conveyor of drainage of waters and appurtenance items within
a CMWD right-of-way, except for drainage by controlled surface flow;
E.
Modify, alter or deface any block wall on or adjacent to a CMWD right-of-way;
F.
Enter into or exit from any CMWD right-of-way at any location not
approved and constructed as a driveway.
(Ord. 45 § X.4,
2009; Ord. 47 § X.4, 2019; Ord. 49, 7/16/2024)
A.
Any person proposing to do any of the acts described in Section 2.36.040 of this chapter shall make an application for a: (1) right-of-way permit, and if required; (2) encroachment agreement to the Public Works Director.
B.
The following information shall be included in the application:
C.
The Public Works Director may require the application to contain
an encroachment agreement if deemed necessary due to the size duration,
and/or nature of the encroachment. The encroachment agreement shall:
1.
Require the encroachment to be placed and maintained in a safe and
sanitary condition;
2.
Require removal of the encroachment by the permittee upon reasonable
demand by the Public Works Director;
3.
Allow the CMWD to remove the encroachment and place a lien on the
property if the permittee does not remove the encroachment in a reasonable
time period;
4.
Allow for the removal of the encroachment by the CMWD during the
performance of any emergency repairs without liability to the CMWD
for damages;
5.
Require adequate security of performance of such promise;
7.
Be in a form acceptable to the General Counsel.
(Ord. 45 § X.5,
2009; Ord. 47 § X.5, 2019; Ord. 49, 7/16/2024)
If, in the opinion of the Public Works Director, the work proposed
to be done requires the making of plans or setting of stakes, or both,
the Public Works Director may require the application to be accompanied
by the necessary plans, which plans shall be prepared by a competent
engineer licensed by the California Department of Consumer Affairs.
The plans shall be reviewed by the Public Works Director or designee
and shall pay the necessary fees in accordance with Chapter 2.24.
The applicant shall bear all costs to prepare and process said plans.
(Ord. 45 § X.6,
2009; Ord. 47 § X.6, 2019; Ord. 49, 7/16/2024)
Every permittee shall commence work as stipulated in the permit
application and diligently pursue the work to completion without interruption
within the time period specified in the permit. A permit issued under
this title may be limited to a period of time as specified in the
permit.
(Ord. 45 § X.7,
2009; Ord. 47 § X.7, 2019; Ord. 49, 7/16/2024)
A.
The permittee shall perform the work in a timely manner, in accordance
with applicable plans, specifications and CMWD standards to the satisfaction
of the Public Works Director.
B.
No person shall cause any improvement or appurtenant work to be performed
on any CMWD right-of-way by any person other than a licensed contractor
or a public utility.
C.
All work shall be inspected by the representative as follows:
1.
No person shall prevent or obstruct the CMWD representative in making
any inspection authorized by this title or in taking any sample or
in making any test.
2.
Inspection requests must be made with twenty-four-hour notice to
the CMWD.
3.
All work not in conformance with approved plans and specifications
is subject to rejection by the CMWD.
4.
Request for final inspection shall be made in writing.
D.
As the work progresses, the CMWD right-of-way shall be thoroughly cleaned of all rubbish, excess earth, rock and other debris resulting from such work. All construction and maintenance work shall be done in a manner designed to leave the area clean of earth and debris and in a condition as nearly as possible to that which existing before such work began. All cleanup operations at the location of such work shall be accomplished at the expense of the permittee. Upon failure of the permittee to clean the area, the CMWD may proceed with cleanup and removal of the material or obstruction in accordance with procedures identified in Section 2.36.140 of this chapter.
(Ord. 45 § X.8,
2009; Ord. 47 § X.8, 2019; Ord. 49, 7/16/2024)
If the Public Works Director, by survey or by inspection or
by both, determines that the work has been completed according to
the requirements of this title and the permit, he or she shall issue
a certificate of acceptance, which shall contain a statement of the
location, nature, and extent of the work performed under the permit.
(Ord. 45 § X.9,
2009; Ord. 47 § X.9, 2019; Ord. 49, 7/16/2024)
A.
The CMWD may deny the issuance of a right-of-way permit to any person
who refuses or fails to comply with the provision of this chapter,
who is indebted to the CMWD for past permit violations, or who in
the judgment of the Public Works Director has repeatedly violated
permit procedures or failed to comply with conditions requiring protection
of the public health and safety.
B.
The Public Works Director may deny the issuance of a right-of-way permit to any person who refuses to execute an encroachment agreement as required by Section 2.36.050.
C.
Any permittee found in violation of the conditions of permit or the
provisions of this title shall be given a written notice to comply,
stipulating the violation. Upon receipt of the notice to comply, the
permittee shall take action to correct the condition of violation
within the period stipulated in the notice. If, within the period,
appropriate measures have not been implemented, the CMWD may revoke
the permit and take any measures required to secure the work site
or return the work site to its original condition. The cost of such
work may be collected from the permittee.
D.
A revoked permit may be reinstated if the permittee demonstrates
to the satisfaction of the Public Works Director that work will be
continued in conformance with the permit and the provisions of this
chapter.
E.
The Public Works Director shall require, as a condition of the permit,
reinstatement of payment of all charges incurred by the CMWD as a
result of permit revocation including a five hundred dollar penalty
for violation of the provisions of this chapter.
(Ord. 45 § X.10,
2009; Ord. 47 § X.10,
2019; Ord. 49, 7/16/2024)
A.
Any person aggrieved by any decision of the Public Works Director
with respect to the issuance, revocation, or refusal to issue a right-of-way
permit may appeal to the Board of Directors by filing a notice of
appeal with the Secretary of the Board within ten calendar days after
the date of the decision of the Public Works Director. Appeals shall
be in writing and shall state the basis for the appeal. Fees for filing
an appeal shall be in amount established by resolution of the Board
of Directors. The decision of the Board of Directors shall be final.
B.
The Secretary shall thereupon fix a time and place for hearing such
appeal. The secretary shall give notice to the appellant and applicant/permittee
of the time and place of hearing by serving the notice personally
or by depositing it in the United States Post Office postage prepaid,
addressed to such persons at their last known address unless otherwise
requested in the notice of appeal.
C.
The Board of Directors shall have the authority to determine all
questions raised on such appeal.
(Ord. 45 § X.11,
2009; Ord. 47 § X.11,
2019; Ord. 49, 7/16/2024)
Encroachment application and right-of-way permit fees shall
be charged by the CMWD for the processing of an encroachment application
and the issuance of a right-of-way permit. The fees shall be established
by resolution of the Board of Directors for the CMWD, for the purpose
of defraying the cost of processing an application, issuing the requested
permit, inspection of works completed under the permit, and other
costs of administrating this title. The fees shall be paid at the
time of application.
(Ord. 45 § X.12,
2009; Ord. 47 § X.12,
2019; Ord. 49, 7/16/2024)
A.
As a condition of issuance of a right-of-way permit, the Public Works
Director may require posting of a cash deposit or an equivalent security
in a form acceptable to the General Counsel. The applicant shall post
a security for one hundred percent of the bond amount for performance
and fifty percent of the bond amount for labor and materials, totaling
one hundred fifty percent of bond amount. The cash deposit may be
used at the discretion of the Public Works Director to provide for
restoration of CMWD facilities or removal from the right-of-way of
work, materials or equipment when permittee or the permittee's
agent fails to act in a timely manner to provide for the public health,
safety, or welfare. The deposit shall otherwise be for the purpose
of guaranteeing performance of work contemplated under the permit.
B.
The amount of the deposit shall be established by the Public Works
Director.
C.
Upon completion and acceptance of work under permit, any funds unused
shall be refunded to the applicant and any other bonds or security
instruments shall be released.
D.
If, in the opinion of the Public Works Director, any deposit or security
is not sufficient for the protection of the public interest in the
public places, the Public Works Director may require an additional
deposit or an increase in the security in such amount as he or she
determines necessary. The permittee shall, upon demand, deposit the
additional cash or security.
E.
Upon failure or refusal to pay, the Public Works Director may revoke
the permit and/or recover the deficiency by appropriate action in
any court of competent jurisdiction, until such deficiency is paid
in full, no other permit shall be issued to such permittee.
(Ord. 45 § X.13,
2009; Ord. 47 § X.13,
2019; Ord. 49, 7/16/2024)
A.
No person shall place or maintain any material or any obstruction
or impediment to travel in or upon any CMWD right-of-way without a
permit to do so.
B.
Persons violating provisions of this Section 2.36.080(D) or 2.36.150(A) shall be issued a notice of removal and given a specified time to remove such material, obstruction or impediment. Any failure to comply with the notice is unlawful and a public nuisance endangering the health, safety, and general welfare of the public. In addition to any other remedy provided by law for the abatement of such public nuisance, the Public Works Director may, after giving notice, cause the work necessary to accomplish the removal. The costs thereof may be assessed against the owner or owners of the project creating the obstruction.
C.
Notice of removal shall be in writing and mailed to all persons whose
names appear on the last equalized assessment roll as owners of real
property creating the obstruction at the address shown on the assessment
roll. Notice shall also be sent to any person known to the Public
Works Director to be responsible for the nuisance. The Public Works
Director shall also cause at least one copy of such notice to be posted
in a conspicuous place on the premises. No assessment shall be held
invalid for failure to post or mail or correctly address any notice.
The notice shall particularly specify the work required to be done
and shall state that if the work is not commenced within twenty-four
hours after receipt of such notice and diligently prosecuted (without
interruption) to completion, the CMWD shall cause such work to be
done, in which case the cost and expense of such work, including incidental
expenses incurred by the CMWD, will be assessed against the property
or against each separate lot and become a lien upon such property.
D.
If upon the expiration of the twenty-four-hour period provided for in subsection C of this section, the work has not commenced or is not being performed with diligence, the Public Works Director shall proceed to do such work or cause such work to be done. However, the CMWD may proceed to remove the encroachment immediately and without notice to the owner if removal of the encroachment is necessary to make emergency repairs to CMWD facilities.
E.
Upon completion of such work, the Public Works Director shall file written report with the Board of Directors setting forth the fact that the work has been completed and the cost thereof, together with a legal description of the property against which cost is to be assessed. The Board of Directors shall thereupon fix a time and place for hearing protest against the assessment of the cost of such work. The Public Works Director or the Secretary of the Board, if so directed by the Board, shall thereafter give notice in writing to the owners of the project in the manner provided in subsection C of the hour and place that the Board of Directors will pass upon the Public Works Director's report and will hear protests against the assessments. Such notice shall also set forth the amount of the proposed assessment.
F.
Upon the date and hour set for the hearing of protests, the Board
of Directors shall hear and consider the Public Works Director's
report and all protests, if there are any, and then proceed to confirm,
modify, or reject the assessments.
G.
A list of assessments as finally confirmed by the Board of Directors
shall be sent to the City of Carlsbad Finance Department for collection.
If any assessment is not paid within ten days after its confirmation
by the Board of Directors, the secretary shall cause to be filed in
the office of the County Recorder a notice of lien, substantially
in the following form:
|
NOTICE OF LIEN
|
|---|
|
Pursuant to Carlsbad Municipal Water District (Ordinance No.
__), the Carlsbad Municipal Water District did on the _____ day of
_____, 20__, cause maintenance and report work to be done in the CMWD
right-of-way for the purpose of abating a public nuisance caused by
activities related to construction at the property described below.
The Board of Directors of the Carlsbad Municipal Water District did
on the _____ day of _____ 20__, by its Resolution No. _____ assess
the cost or portion of the cost thereof upon the real property hereinafter
described, and the same has not been paid nor any part thereof, and
the Carlsbad Municipal Water District does hereby claim a lien upon
said real properly until the same sum with interest thereon at the
maximum rate allowed by law from the date of the recordation of this
instrument has been paid in full and discharged of record. The real
property herein before mentioned and upon which a lien is hereby claimed
is that certain parcel of land in the City of Carlsbad, County of
San Diego, State of California, particularly described as follows:
|
|
(Description of property)
______________________________________________
|
|
Dated this ___ day of _____, 20__
|
|
______________________________________________
Secretary of the Board, Carlsbad Municipal Water District
|
H.
From and after the date of record at ion of such notice of lien,
the amount of the unpaid assessment shall be a lien on the property
against which the assessment is made, and such assessment shall bear
interest at the maximum rate allowed by law until paid in full. The
lien shall continue until the amount of the assessment and all interest
thereon has been paid. The lien shall be subordinate to tax liens
and all fixed special assessment items previously imposed upon the
same property, but shall have priority over all contractual liens
and all fixed special assessment liens, which may thereafter be created
against the property. From and after the date of recordation of such
notice of lien, all persons shall be deemed to have notice of the
contents thereof.
(Ord. 45 § X.14,
2009; Ord. 47 § X.14,
2019; Ord. 49, 7/16/2024)
A.
The Public Works Director may require any permittee, who pursuant to a duly issued right-of-way permit under this title, has performed construction work or placed and maintained any encroachment, to remove or move the encroachment at the permittee's own cost and expense to such different location as is specified in a written demand of the Public Works Director, whenever such move is necessary to ensure the safety and convenience of the public or facilitate construction. The Public Works Director shall specify in the demand a reasonable time within which the work of relocation must be commenced, and the permittee must commence such relocation within the time specified in the demand and thereafter diligently prosecute the same to completion. If permittee fails to diligently remove the encroachment, the Public Works Director may proceed under Section 2.36.140.
B.
The CMWD shall have the right to relocate or remove any encroachment
in response to an emergency condition requiring immediate repair,
without the notification of the permittee or the owner of any encroachment
into a CMWD right-of-way.
(Ord. 45 § X.
15, 2009; Ord. 47 § X.15,
2019; Ord. 49, 7/16/2024)
The applicant for a permit, as a condition to receiving a permit
shall sign a statement that he agrees to indemnify and hold harmless
the CMWD and each officer and employee thereof, from any liability
or responsibility for death or injury to persons and loss or damage
to property happening or occurring as a result of the design or performance
of any work undertaken under any permit granted pursuant to the application.
The applicant may be required to provide proof of liability insurance
in an amount set by a resolution of the Board and may be requested
to name the CMWD as an additional insured under the insurance policy.
The insurance shall be provided by a company satisfactory to the Risk
Manager. Any deductible or self-insured retention under the insurance
policy shall be in amount acceptable to the Risk Manager.
(Ord. 45 § X.
16, 2009; Ord. 47 § X.16,
2019; Ord. 49, 7/16/2024)
The CMWD shall not be liable for any damages whatsoever to the
encroachment facilities or encroachment area when the damages are
related in any way to the District's continued use of the right-of-way,
or are as a result of the CMWD's construction, use, repair, replacement
or relocation of any CMWD facilities within the right-of-way.
(Ord. 45 § X.17,
2009; Ord. 47 § X.17,
2019; Ord. 49, 7/16/2024)
The CMWD and its employees, acting in their official capacity,
are exempt from the requirements set forth in this title.
(Ord. 45 § X.18,
2009; Ord. 47 § X.18,
2019; Ord. 49, 7/16/2024)
