[HISTORY: Adopted by the Board of County
Commissioners of Doña Ana County 11-10-1998 by Ord. No. 176-98. Amendments noted where applicable.]
A.
Doña Ana County (hereinafter "County") owns,
maintains, or is responsible for approximately 1,236 lineal miles
of right-of-way, including, but not limited to, roadways and easements,
within the unincorporated areas of the County. From time to time,
utilities and other persons desire to occupy, use, construct or excavate
within the County right-of-way.
B.
The Board of County Commissioners has the statutory
authority and responsibility to make such orders concerning County
property, including rights-of-way, as it may deem expedient. (NMSA
§ 4-38-13) The Board of County Commissioners must grant
the use of County-owned property pursuant to New Mexico statutes and
the New Mexico Constitution. In the absence of specific statutory
provision to the contrary, the Board of County Commissioners "represents
the county and has the care of the county property and management
of the interest of the County in all cases where no other provision
is made by law." (NMSA § 4-38-18)
C.
The New Mexico Constitution requires that the County
receive full compensation for the use of its property. "Neither the
state nor any county, school district or municipality, except as otherwise
provided in this Constitution, shall directly or indirectly lend or
pledge its credit or make any donation to or in aid of any person,
association or public or private corporation. . ." (New Mexico Constitution,
Article IX, Section 14)
D.
While regulated public utilities are "authorized to
place their pipes, poles, wires, cables, conduits, towers, piers,
stations and other necessary fixtures, appliances and structures,
upon or across any of the public roads, streets, alleys, highways
and waters in the state," such use of County property is "subject
to the regulation of the County commissioners..." (NMSA § 62-1-2)
Additionally, nonregulated mutual domestic water associations and
water and sanitation districts also require access to County rights-of-way.
The Board of County Commissioners wishes to foster the continued expansion
of utility service throughout the unincorporated areas of the County.
The Board also wishes to provide that the County be compensated for
the reasonable costs involved in the use of the right-of-way, for
administrative expenses incurred in the processing of the necessary
permits, as well as for the required monitoring of the progress of
the work and protection of the public health, safety and welfare.
Further, under NMSA § 62-1-3, the Board of County Commissioners
is authorized to impose charges for reasonable actual expenses incurred
in the granting of such right-of-way use to a utility for use of County
rights-of-way. Harmonizing the language of Article IX, Section 14,
of the New Mexico Constitution with the aforementioned statutes, it
is manifest that the County must take the proper steps to ensure that
utilities and other persons wishing to use County right-of-way compensate
the County for actual reasonable expenses relating to their use of
the County's property.
E.
Therefore, pursuant to the conditions of this chapter,
the Board of County Commissioners will require parties wishing to
use County rights-of-way to compensate the County for all of the County's
reasonable costs incurred directly and indirectly in permitting the
use of County rights-of-way, including, but not limited to, the costs
of mapping, managing, and coordinating the use of the right-of-way
by the various parties, along with the administrative and general
costs related to processing applications for use of the right-of-way
and the enforcement of the terms of this chapter.
F.
Further, the Board of County Commissioners will require
utilities or persons using County rights-of-way to adequately indemnify,
hold harmless and defend the County against all possible claims of
loss or damage arising out of the use of the right-of-way.
G.
All uses of County rights-of-way must be coordinated
to ensure the maintenance of public health, safety and welfare pursuant
to NMSA § 4-37-1; to allow the Board of County Commissioners,
to the extent permitted by law, to prioritize the use of County rights-of-way;
and to achieve County goals. It is a goal of the Board of County Commissioners
to reduce the possibility of unnecessary duplication and economic
waste in the use of County rights-of-way and to use and grant the
use of its rights-of-way consistent with the best interests of the
County and its inhabitants. Therefore, consistent with New Mexico
law, the County may deny any application for use of County rights-of-way
that the Board of County Commissioners finds would or may interfere
with an existing use of the right-of-way by those utilities which
have valid permits issued by the County, or which have entered into
a right-of-way use agreement with the County, pursuant to terms of
this chapter. In addition, consistent with New Mexico law, the Board
of County Commissioners may deny any application for use of County
rights-of-way that the Board finds would or may duplicate the County's
own planned or actual use, would negatively affect a County purpose
or project, or may be harmful to the health, safety and welfare of
the public.
H.
The Board of County Commissioners shall by separate
resolution establish and appoint a Utility Advisory Planning Council
for the purpose of advising and assisting the Board with the creation
of a County-wide utility plan for the orderly and coordinated growth
and expansion of utilities within the County.
I.
Nothing in this chapter should be construed or interpreted
to affect or to impair the jurisdiction of the New Mexico Public Utility
Commission or other statutorily created agency having jurisdiction
over public or nonpublic entities or to affect or to impair a regulated
public utility's rights and obligations under the New Mexico Public
Utility Act, NMSA § 62-3-1 et seq, or any other state act.
J.
The Board of County Commissioners adopts this chapter
and establishes herein the administrative process utilities and other
persons must follow to gain permission to use County rights-of-way,
and the engineering and design standards a utility must satisfy to
perform any work or place any facilities within the right-of-way and
the fees to be paid therefor.
As used in this chapter, the following terms
shall have the meanings indicated:
All expenses directly or indirectly incurred by the County
related to permitting the use of County right-of-way by utilities
or persons, including but not limited to, the costs of mapping, managing,
and coordinating the use of the right-of-way by the utilities or persons,
along with the administrative and general costs related to the processing
of application for use of the right-of-way, and the enforcement of
the terms and conditions of this chapter, and any other cost or expense
reasonably associated with the maintenance of the rights-of-way in
a manner that protects the health, safety and welfare of the public.
Installation of new facilities suspended above ground level.
[Added 9-27-2011 by Ord.
No. 235-2011]
Any utility or person required to obtain a permit pursuant
to the terms and conditions of this chapter.
Doña Ana County or the Board of Commissioners of Doña
Ana County, as the context requires.
Any situation necessitating excavation of, use of, or entrance
onto the County right-of-way for the purpose of locating a problem
area or to make repairs in a facility when circumstances are such
that delay in correcting the problem or making the repair would present
a substantial and real threat of injury, would harm the health, safety
and welfare of the public, or would likely result in serious property
loss or damage.
A hole, trench, ditch or depression in a right-of-way resulting
from the removal or moving of the pavement, or dirt or other material;
not a substructure opening.
Any pipe, pipeline, tube, main, service vent, vault, manhole,
meter, regulator, valve, conduit, pole, line, cable, anchor, structure,
or object of any kind, type, manner or character, whether listed herein
or not, which is or may be lawfully constructed, left, placed or maintained
upon, along, above, across, under or within the right-of-way.
Repair of existing facility that does not include system
rehabilitation.
[Added 9-27-2011 by Ord.
No. 235-2011]
Replacement of an existing meter located within a County
right-of-way.
[Added 9-27-2011 by Ord.
No. 235-2011]
A permit issued by the County pursuant to the terms and conditions
of this chapter which allows the use of County rights-of-way by utilities
and other persons.
An applicant whose permit request has been approved and who
holds a valid permit.
Any individual, estate, trust, utility, receiver, association,
subdivision of the state, cooperative, club, public or private corporation,
company, firm, partnership, joint venture, syndicate, municipality
or any other entity.
All property owned by or maintained by the County, including,
but not limited to, streets, highways, alleys, planes, sidewalks,
plazas, parks, easements, curbs, and drainageways, which constitute
County rights-of-way.
See "public place."
The individual designated by the County Manager to administer
this chapter and the County right-of-way permit operation, to include,
but not be limited to, the receipt, review, processing, approval or
denial of permit applications, approval and denial of administrative
variances and maintenance of County right-of-way records.
An agreement entered into between a utility and the County
for utility use of County rights-of-way.
The fee paid by persons or utilities utilizing County rights-of-way
pursuant to the terms and conditions of this chapter.
Any excavation, not exceeding the width of the affected County
right-of-way, necessary to allow a single meter hook-up for a single
property owner to tie into an existing utility line for the purpose
of securing utility service, but does not include line extensions.
Any facility located below the surface of a County right-of-way.
An opening into a lawfully permitted substructure, the top
of which is required to be flush with the adjoining surface within
a County right-of-way, and which is constructed so as to permit frequent
utilization, without requiring the removal of pavement, dirt, or other
material, while maintaining the health, safety and welfare of the
public.
Installation of new facilities below ground level.
[Added 9-27-2011 by Ord.
No. 235-2011]
Performance of work within and/or occupation of County rights-of-way,
including, but not limited to, the excavation of materials, boring,
maintenance and checking of substructures and substructure openings;
and/or the use of the rights-of-way to place any facility thereon
or therein.
A person, as defined in this chapter, whose primary function
is the provision of certain services to the public or third parties,
which services include, but are not limited to, electrical, gas, water,
wastewater, and telecommunications services.
A.
Any person or party wishing to obtain a permit from
the County pursuant to this chapter must submit the following information
to the Right-of-Way Administrator:
(1)
The name, telephone number, address, and place of
business of the applicant and his/her engineers and/or contractors.
(2)
A detail drawing and written description of the location
and dimensions of the proposed use of the County right-of-way, including
a plan view and cross-section view of the proposed use, which are
sufficient to indicate the placement of any facilities or to locate
the work to be performed. (Five complete sets shall be submitted for
review.)
(3)
The method by which the proposed use within the right-of-way
will be accomplished, including an estimate of the amount of time
required to complete any actual work to be performed within the right-of-way,
including backfilling and removal of all obstructions, materials and
debris, and restoration of the surface. The applicant's authority
to use the County right-of-way shall be limited to the purposes and
work plan specifically authorized by the permit.
(4)
The purpose and function of any facility to be located
within the right-of-way.
(5)
All road crossings on paved roads shall be performed
by boring rather than excavating, except where boring is not reasonably
justified as determined by the County. In situations where the applicant
wishes to perform a road crossing by excavation in lieu of boring,
the applicant shall provide written justification therefor to the
Right-of-Way Administrator. Some examples of conditions where boring
may not be justified are lack of adequate room in the County right-of-way
to operate boring equipment; boring on gravel or dirt roads.
B.
In all cases where the work to be done in the County
right-of-way is to be done by a utility, the utility must be the applicant.
C.
The applicant shall be required to provide proof of
adequate insurance in an amount satisfactory to the County indicating
that the applicant has sufficient insurance to protect both the County
and the applicant for any and all claims or damages arising out of
bodily injury, including death, to any party, including the applicant,
and his employees and agents and the County employees and agents,
and from claims for damaged property, which may arise out of, or result
from, the applicant's use of the County right-of-way, including completed
or ongoing operations performed within the County right-of-way. At
a minimum, the policy coverage and limits shall be those set forth
in NMSA § 41-4-19. To simplify this requirement, utilities
that operate in the County may file with the Right-of-Way Administrator
a copy of the utility's master or applicable insurance policy which
provides the above-delineated coverage. Such policies must be refiled
yearly. The utility is obligated to provide the County with notice
of cancellation of its policy, if that event should occur. The applicant
must agree to defend, hold harmless, and indemnify the County and
its officers, agents and employees against all claims, losses and
damages to persons or property on account of or resulting from the
intentional or negligent conduct on the part of the permittee in the
permittee's use of the County right-of-way, or any work, duties, or
obligations performed pursuant to the terms of this chapter and the
duly issued permit.
D.
No permit shall be issued until proof of adequate
insurance has been provided by the applicant to the Right-of-Way Administrator.
No permit shall be issued until the applicant signs agreements required
by the County or its insurance carrier to signify the applicant's
willingness and ability to defend, indemnify and hold the County harmless
as required by this chapter.
E.
Upon receipt of the application, and, except as specifically hereinafter set forth, the nonrefundable application fee as set forth in Chapter 179, Fees and Permits, the County will review the request. The Right-of-Way Administrator will verify the information provided in the application and will process the application through relevant County departments. The application will be further reviewed to determine if it is consistent with the terms and conditions of this chapter and will not impact upon or impair other permitted uses or planned projects and is not detrimental to the health, safety and welfare of the public.
[Amended 9-27-2011 by Ord. No. 235-2011]
F.
The Right-of-Way Administrator will also review the
work plan to determine whether the use of the right-of-way can be
accomplished pursuant to the engineering and construction standards
set forth in this chapter, and as may be amended and promulgated by
the County in the future, and set forth in subsequent ordinances or
resolutions.
G.
In most cases, within a maximum of 10 working days
of receipt of the completed application and nonrefundable application
fee, the Right-of-Way Administrator will notify the applicant by e-mail,
regular mail and/or by telephone of the acceptance or denial of the
application. If the application has been approved, the applicant will
be notified in writing of the terms and conditions of the permit,
including the right-of-way usage fee. The permit will be valid only
upon payment of all applicable fees. Where the proposed project is
expansive or complex, as determined by the Right-of-Way Administrator,
more than 10 days may be required. In that event, the Administrator
will notify the applicant and will inform the applicant of the estimated
additional time needed.
[Amended 9-27-2011 by Ord. No. 235-2011]
H.
Except as otherwise specifically provided-for in this
chapter, the fees for which are hereinafter set forth, usage fees
shall be based upon the lineal feet of right-of-way to be used by
the applicant.
[Amended 9-27-2011 by Ord. No. 235-2011]
(1)
The fees for trenching and all uses of the right-of-way placed below ground level shall be as set forth in Chapter 179, Fees and Permits.
(2)
The charge per lineal foot for placement of facilities in the right-of-way above ground level shall be as set forth in Chapter 179, Fees and Permits.
(3)
If, concurrent with the installation of a new utility
line, service connections are being made to customers from that new
line, there will be no additional fee to be paid for each hookup.
The fees paid for the permit and lineal-foot usage shall include those
service connections.
I.
No fee shall be required for work within the County
right-of-way performed at the request of the County for a County project,
unless it is a County water or wastewater utility project where the
County will be providing water or wastewater utility to customers
who will pay fees and other charges to the County.
K.
A maintenance/repair permit must be obtained by any utility or person for any maintenance or repair work to be done on its lines or facilities where excavation will be required into the County right-of-way to perform the maintenance or repair. The fee for said permit shall be as set forth in Chapter 179, Fees and Permits. Such maintenance/repair excavations may be subject to the provisions, reviews, inspection and testing provisions of this chapter. If the maintenance/repair excavation is to exceed 250 feet, then the full permit fee and the fee schedule per lineal foot provided for in Subsection H above shall apply in lieu of the permit fee. A maintenance/repair permit shall not require any fee beyond that set forth in this Subsection K. However, a permit must be secured. System rehabilitation is not considered maintenance/repair.
[Amended 9-27-2011 by Ord. No. 235-2011]
L.
Exception to permit requirement.
(1)
Where a utility or other person wishes to replace
or exchange a water, sewer, electric or other utility meter, a permit
from the County will not be required if the following apply:
(a)
The meter is above ground, and there will be
no impact on the County right-of-way.
(b)
The meter is underground and encapsulated in
a manhole, but there will be no further impact on the County right-of-way.
(c)
The meter is underground, but will involve minimal
ground disturbance, as determined by the Right-of-Way Administrator.
(2)
If a permit is not required, it is still incumbent
upon the utility to meet all other applicable standards and to inform
the Right-of-Way Administrator of such work within 24 hours prior
to work commencement.
M.
For projects that will require a deviation from the
nature, scope or amount of right-of-way use envisioned within this
chapter, the County reserves the right to exact higher fees which
will be mutually agreed upon by the County and the applicant.
N.
As an alternative to payment up-front on each project
for which it seeks a permit, a utility operating in the County may
establish a credit account with the County under which it would be
billed monthly for charges incurred in the previous month, with payment
due within 30 days after billing. This credit arrangement may be withdrawn
by the County in the event that a utility becomes delinquent in its
payments to the County or in the event that a utility continues to
be in violation of this chapter after notice of violation. If the
County is required to commence litigation against a utility to collect
unpaid and delinquent balances, the County shall have the rights and
remedies available to it by New Mexico statute, including the award
of prejudgment interest and of attorney fees.
O.
Further, a utility involved in a project which is
being funded by state or federal grants and/or loans may apply for
a permit without the up-front payment of fees upon a showing that
the permit needs to be acquired as a condition of approval and/or
receipt of the public funding. In such a case, payment of the fees
due the County will be deferred until the public funds are available
for the project.
A.
Except as otherwise provided in this chapter, no utility
may commence any use of the County right-of-way unless and until a
permit for such use is first obtained from the County. Ordinarily,
permits shall be valid for 90 days. However, if a longer period of
time is necessary, the permittee may submit a written request for
additional time justifying the additional requested time.
B.
A permit shall be required for any use of a County
right-of-way, including but not limited to excavation within the right-of-way,
boring of any substructure opening, aerial use of a County right-of-way,
or placement of any facility within a County right-of-way.
C.
It shall be unlawful for any person or party to use
a County right-of-way without first securing a permit from the County
and complying fully with all the provisions of this chapter, and any
related regulations that may be adopted by the County.
D.
All utility construction and road restoration shall
be in accordance with the Doña Ana County Standard Specifications
for Road Construction in effect at the time of application. The County
may promulgate and adopt such further additional rules and regulations
as may be required to fully implement this chapter. Copies of such
rules and regulations shall be available to applicants at the County
Clerk's office. In addition, all work shall be performed in accordance
with state and federal requirements including but not limited to OSHA.
E.
The permittee is required to correct substandard work
or work performed with defective materials and/or workmanship, as
directed by the Right-of-Way Administrator. The permittee must restore
the street subbase, base and surface to its original condition upon
completion of the work within the right-of-way. Upon failure of the
permittee to begin repairs within 24 hours after written notice by
the County and to complete the required work within a reasonable time,
as determined by the County, the County shall cause such work to be
done and the cost thereof charged to the permittee. In addition, the
County may declare the permittee to be in default of the terms of
the permit, and take steps pursuant to this chapter to suspend the
permit.
F.
The permittee must take appropriate measures to maintain
safe and adequate passage of vehicle and pedestrian traffic as required
by the County while performing any work within the right-of-way.
G.
In the event the permittee causes damage to existing
utilities or facilities located within the right-of-way, including
pipe coating or other encasement or devices, the permittee must notify
the Right-of-Way Administrator or his designee and the owner of the
damaged facility immediately, and take immediate steps to arrange
for the repair of the damage. The permittee is responsible for the
cost of said repairs. Further, the County may declare the permittee
to be in default of the terms of the permit and may take steps pursuant
to this chapter to immediately suspend the permit.
H.
The permittee is responsible for the proper installation
of any diversion or ponding devices necessary for protection of property
and structures, and shall be responsible for repair or payment of
damages caused to property or structures by the permittee's failure
to properly provide such devices.
I.
Prior to making any excavation or paving cut, the
permittee shall adequately barricade the area to be excavated and
shall adequately provide light devices at night in compliance with
the latest edition of the Manual on Uniform Traffic Control Devices
(MUTCD). Barricading and lighting shall be maintained by the permittee
until all work has been finished, including the replacement of paving.
[Amended 9-27-2011 by Ord. No. 235-2011]
J.
After completing excavation within the right-of-way,
the permittee shall install all facilities at least 36 inches below
the road surface, or deeper, if necessary, to meet the more stringent
requirements of other governmental agencies or County ordinances.
All parallel and lateral depths shall be a minimum of 36 inches beneath
ground surface.
K.
Ditches paralleling County roads that exceed 350 feet
in length shall not be left open for more than 72 hours, unless for
good cause shown the Right-of-Way Administrator permits a longer period
of time.
L.
All material excavated must be piled and maintained
so as not to endanger the public health, safety and welfare. In order
to expedite flow of traffic and to keep dirt and dust from spreading
or flying, the permittee shall use guards or other methods and/or
shall water the excavation material. The permittee shall remove all
rubbish, excess earth, rock and other debris resulting from excavation
work immediately upon completion of backfilling as required by this
chapter. If the permittee fails to do the required work, the County
has the option, but not the obligation, to cause the work to be performed
and to charge the cost of the work to the permittee.
M.
Unless specifically exempted in writing, any person
who trenches or excavates within the right-of-way for any purpose
is required to backfill the trench or excavation as follows:
(1)
All trenches and ditches will be backfilled and compacted.
(2)
In all trenches and excavations, the material used
in backfilling must consist of the original, excavated material or
other similar material, in a finely divided form free from large lumps,
large stones, rocks, pieces of old concrete, or asphalt pavement or
large or wet gummy masses, and must be placed and compacted to the
top of the trench or excavation. Compaction shall be in conformance
with specifications of AASHTO, T-180 (American Association of State
Highway and Transportation Officials) to 95% maximum density.
(3)
Backfill and compaction inspections shall be made
by the permittee. The County reserves the right to perform additional
inspections and/or testing at its own cost. In the event the compacted
backfill fails to meet the density requirements of this chapter, or
otherwise fails as evidenced by settlement of the trench or excavation,
the County will notify the permittee in writing and the permittee
will correct the defect within 72 hours, and the permittee is responsible
for the cost of the failed test, which cost shall be in addition to
the right-of-way use fees provided for herein. If the permittee fails
to correct the situation, the County has the option but not the obligation
to order the work performed to meet the required density specified
herein. The County may also order the replacement of all pavement
destroyed or damaged as a result of the backfill failure settlement.
The costs incurred by the County shall be paid by the permittee.
(a)
Testing shall be conducted by the permittee
on every lift up to and per 250 lineal feet thereafter of material
disturbed. Lifts shall be 12 inches to 18 inches in depth and/or of
sufficient depth to obtain required density.
(b)
Prior to any testing of compacted backfill,
the permittee shall inform the County within 24 hours of the scheduled
testing.
(c)
All testing certificates shall contain the following
minimum information: date, location, percentage compaction, permit
number and other information applicable to the task. Testing certificates
shall be furnished to the County within five working days of completion
of the testing.
(d)
Testing shall be accomplished by a certified
independent testing laboratory.
N.
The standard utility requirements are as follows:
(1)
Water lines shall be installed within the right-of-way
parallel to the edge of pavement on the east or north side of the
right-of-way outside the paved area at a minimum of three feet beyond
the edge of the pavement.
(2)
Gas lines shall be installed within the right-of-way
parallel to the edge of pavement on the west or south side of the
right-of-way outside the paved area at a minimum of three feet beyond
the edge of pavement.
(3)
Sewer lines shall be located within easements on the
west or south side of the right-of-way on newly platted subdivisions
or along the center line of the right-of-way on existing roadways
if an easement does not exist.
(4)
Water lines and gas lines shall in all cases be separated
from sewer lines by a minimum of 10 feet and all other underground
lines (including other existing water and gas lines) by a minimum
of five feet.
(5)
Each sewer, water, and gas line shall in all cases
be placed in its own separate trench.
(6)
The utility separations as specified above shall also
cover back-lot easements or other easements as required. Easements
shall be wide enough to allow for utility separations as specified
above, with all utilities being at least five feet inside the edge
of the easement.
(7)
Where used, fire hydrants shall be located no closer
than 18 inches to the right-of-way boundary within the right-of-way
and as far as possible from the edge of pavement.[1]
[1]
Editor's Note: Former Subsection N.8, regarding fire hydrants,
which immediately followed this subsection, was deleted 9-27-2011
by Ord. No. 235-2011.
(8)
All valves and manholes shall have a concrete collar
placed at finish grade if located within a paved surface and no less
than 12 inch below the surface if located in an area where no paving
exists.
(9)
Water, sewer and gas mains shall be marked with tracing/warning
tape installed above the pipe, 15 inches below the top of the trench
in the case of gas and water, and 12 inches below the top of the trench
in the case of sewer.
(10)
The tracing tape to be buried over all lines throughout
their entire lengths shall have the following specifications:
(a)
Tape shall be three inches wide and shall consist
of one layer of metalized foil laminated between two layers of inert
plastic film.
(b)
Laminated bonding that can be separated by hand
is not acceptable.
(c)
Tape shall be a minimum of five mils thick with
a minimum tensile strength of 84 pounds per three-inch-wide strip.
(e)
Tape shall be inductively locatable and conductively
traceable using a standard pipe and cable locating device for a minimum
of eight years after direct burial.
(f)
Test results showing a minimum of eight years'
life and full compliance with these specifications and a sample of
the tape may be required to be furnished to the Right-of-Way Administrator.
(11)
Replacement of pavement, when necessary, shall follow
the backfill by not more than three days or not more than 1,000 lineal
feet.
(12)
Gas lines shall at all times be separated from any
other parallel underground line by a minimum of 10 feet and shall
in all cases be placed in their own separate trench. When crossing
other underground lines, there shall be a minimum clearance of 18
inches between the gas line and the line being crossed. The minimum
specified gas line depth (cover) shall in all cases be maintained.
(13)
Thrust, anchorage, support and encasement:
(a)
At points where the vertical or horizontal hydraulic
thrust exceeds the resisting capacity of a single pipe joint and at
cast-iron fitting and valves, place concrete anchor blocks, thrust
blocks, concrete supports, or concrete encasement in a manner that
will counteract the thrust or transfer the thrust from the pipe or
fitting to ground which will not yield.
(b)
Place concrete in a manner that will leave rubber
ring joints free to permit minor deflection, except where extended
encasement is called for. Before placing concrete encasement, wrap
PVC pipe with a layer of building felt or with polyethylene wrap to
prevent bond and the possible transmission of cracks from the encasement
to the pipe.
(c)
When the ground is soft and cannot be compacted
to resist the thrust from the pipe or fitting to unyielding ground,
an increase in the amount of concrete, or the bearing area, shall
be made. Do not weaken the supporting soil by permitting water in
the trench.
(d)
Use concrete of a minimum of 3,000 psi compressive
strength design for anchor and thrust blocks and encasement, and where
reinforcement is shown, use deformed billet steel, conforming to ASTM
A615, Grade 40.
(14)
Protection of equipment. Equipment that is part of
the facility (risers, control boxes, hydrants, etc.) may be protected
from impact as long as the impact upon the protection device is not
greater than the impact if the protection device is not in place.
(15)
Public convenience and access.
(a)
The permittee shall conduct and schedule his
work at all times so that a minimum of obstructions to traffic and
other inconveniences to the public occurs. The testing, purging, transfer
of service, chlorination of lines, and backfill of each section of
line shall follow the installation within a reasonable time.
(b)
Where the pipeline routes cross secondary streets,
the excavation shall be backfilled to provide a roadway prior to the
end of the work day. Construction by open excavation across major
streets and thoroughfares shall be carried and completed to approximately
the roadway center line and the trench backfilled prior to excavation
across the remaining roadway section so that traffic will not be interrupted.
(c)
The permittee shall provide and set barricades
and flashing lights along all open excavations and at points where
the construction operation creates hazards to the public. Spacing
of barricades and lights shall be adequate to insure the public a
warning of the hazard, and shall be in compliance with the directions
of the Manual on Uniform Traffic Control Devices and all other County,
state and federal regulations. Flares and/or lights shall be kept
burning from sunset to sunup. Barricades shall be painted and fitted
with reflective paint and reflectors, respectively, to increase visibility,
in compliance with requirements of the latest edition of the MUTCD.
[Amended 9-27-2011 by Ord. No. 235-2011]
(16)
Wire utilities shall be placed no farther than five
feet from the edge of the right-of-way on the east and/or north side
of the center line of the right-of-way.
(17)
It shall be the responsibility of the applicant to
properly conduct a construction survey and to determine the limits
of the Doña Ana County right-of-way prior to any excavation.
O.
The County may make any and all inspections and random
tests as it deems necessary to enforce the terms and conditions of
this chapter. Acceptance or approval of ditching, excavation, backfilling,
and restoration of surface by the County does not prevent the County
from asserting claims against the permittee for incomplete or defective
workmanship or materials. The presence or absence of a representative
of the County during the performance of the work does not relieve
the permittee of his/her responsibilities hereunder.
P.
The permittee shall have available the original or
a photocopy of the permit on site at all times during construction.
Q.
The permittee is required to notify the Right-of-Way
Administrator to advise it of the commencement date of construction
at least 24 hours prior to commencement. In addition, the permittee
is required to notify the Administrator within 24 hours of completion
of construction to arrange for a final County inspection. Within 30
days of completion of construction, the permittee shall furnish the
County a complete set of vellum as-built drawings, with the permit
number on the drawings.
In the event changes are made in the County
right-of-way that necessitate relocation of any installation or facility,
the affected utilities will receive written notice from the County
and are required to contact the Right-of-Way Administrator to coordinate
relocation of their facilities. Relocation of the facilities shall
be completed by the utilities within a reasonable time, usually 60
days. The expense of the relocation shall be borne by the requesting
party or the party at fault or pursuant to terms and conditions mutually
acceptable to the County and the utilities, unless other non-County
funds are available to pay utility relocation expenses.
A.
As an alternative to complying with all of the permit
procedures set forth herein, a person or utility may enter into a
comprehensive agreement with the Board of County Commissioners for
the purpose of coordinating the person or utility's use of County
rights-of-way in multiple and various locations and, in some circumstances,
for varying purposes. This agreement would eliminate the requirement
for payment of right-of-way fees for each distinct and separate pipe,
or location, or use of County rights-of-way. However, the permittee
shall comply with all other requirements for use of County rights-of-way
set forth herein, including making application for a permit.
B.
Except where there is a need for individualization
based on the type of utility involved, the terms and conditions of
the right-of-way agreement, including fees therefor, and standards
will be common for all. The term of a right-of-way agreement shall
not exceed 25 years.
[Amended 9-27-2011 by Ord. No. 235-2011]
Pursuant to NMSA § 4-37-3, a violation of this chapter is punishable as set forth in Chapter 1, General Provisions, Article III, General Penalty. In addition, the County may pursue other legal and equitable remedies allowed by law, including injunctive relief, in cases of unauthorized use of County rights-of-way by any utility or person. In the alternative, where applicable, the County may resort to its enforcement authority under § 274-10 or 274-13 of this chapter.
In the event of any emergency which threatens
the health, safety or welfare of the public, use of the County right-of-way
may be commenced without first obtaining a permit, provided that the
utility making the emergency use files such application for a permit,
as required by this chapter, during the first working day immediately
following the date of commencement of the emergency use.
A.
Administrative. The County Right-of-Way Administrator,
upon written application therefor, shall have the authority to grant
administrative variances from the technical standards provided for
in this chapter upon a demonstrated showing that a strict application
of the established technical standards is impractical or not feasible
because:
(1)
There is insufficient room within the County right-of-way
to meet standards; or
(2)
Adherence to the standards would be incompatible with
the nature or placement of facilities presently existing in the County
right-of-way to be used; or
(3)
Adherence to standards is not reasonably-justified
based on other factors, to include, but not limited to, extent of
proposed project, physical conditions of the County right-of-way or
physical hardship; and that the variation in standards proposed by
the applicant/permittee will not result in an inferior work product.
C.
There will be no variances from the required fees.
Except as provided for in § 274-8 of this chapter, if a utility or person commences use of a County right-of-way or work within the right-of-way for which a permit would be required pursuant to the terms of this chapter prior to the use being made, the County may require the payment of treble the amount of application and lineal fees that would have been charged absent the unauthorized commencement of use of the right-of-way. The payment of treble fees shall not relieve any such utility or person from complying with all of the requirements of this chapter, including the filing of an application for use of the right-of-way and County review for approval or denial. In the alternative, the County, in its sole discretion, may require the unauthorized user to remove the facilities unlawfully placed in the right-of-way.
Permits, or the payment of application or lineal
fees, will not be required for use of rights-of-way within a subdivision
which has been platted and approved by the County pursuant to the
terms of the Extraterritorial Zoning Ordinance 88-02, and Chapter
300, Subdivision of Land, as amended,[1] provided that the appropriate fees have been paid to the
County in full, as required by the aforementioned chapters. The technical
standards of this chapter are, however, applicable to utility use
of County rights-of-way within a subdivision.
In the event the terms and/or the conditions
of this chapter conflict with those found in any other County or local
ordinance, or state or federal statute or regulation, the more stringent
terms and/or conditions shall apply.
A.
The County reserves the right to suspend a permit
for noncompliance by the permittee with the technical standards of
this chapter or the terms of the permit. Immediate suspension of the
permit may occur in circumstances where the County determines that
a dangerous condition has been created by the permittee's noncompliance
with the terms of this chapter or the permit, which condition would
threaten the health, safety or welfare of the public.
B.
In situations where the permittee's noncompliance
with the terms of this chapter or the permit does not create an immediate
threat to the health, safety or welfare of the public, the County
will notify the permittee in writing of the noncompliance, and will
allow the permittee five days to demonstrate compliance. In the event
the permittee fails to comply and fails to cease work, the County
may seek injunctive relief to prevent the continued unauthorized use
of its right-of-way.
Upon written application to the Right-of-Way
Administrator, and for good cause shown, or upon the Administrator's
own initiative, the permittee may be granted, in writing, an extension
of time for which the permit will be valid in order to allow the permittee
more time to complete the permitted project.
[Amended 9-27-2011 by Ord. No. 235-2011]
An applicant or permittee shall have the right to appeal an adverse decision of the Right-of-Way Administrator on any matter. All such appeals shall be made in writing to the County Manager or his designee no later than 10 days after receipt of written notice to the applicant, permittee or other person of an adverse decision and must be accompanied by a nonrefundable appeal fee as set forth in Chapter 179, Fees and Permits. Appeals shall be heard at a public meeting of the Board of County Commissioners within 45 days of the filing of a written appeal and shall be quasi-judicial in nature. A decision of the Board of County Commissioners adverse to the applicant or permittee may be taken by the applicant or permittee to the state district court pursuant to state district court rules of procedure. The decisions of the Board of County Commissioners shall be based upon findings of fact.
This chapter shall be effective 30 days after
its adoption and enactment by the Board of County Commissioners and
the filing of the signed original ordinance with the County Clerk.
It shall be effective within the geographical limits of Doña
Ana County outside the boundaries of all incorporated municipalities.
A.
The payment of fees for non-utility, non-business
agricultural uses of County rights-of-way shall be waived. However,
these agricultural uses of County rights-of-way shall comply with
all other terms and provisions of this chapter, including but not
limited to compliance with the permit application process and technical
standards.
B.
Uses of County rights-of-way by individuals for such
purposes as driveways, curb cuts, sidewalks, and other similar improvements,
that are non-utility, non-business related, are exempt from all of
the requirements of this chapter. However, such uses are not exempted
from other relevant County ordinances and resolutions.
[Amended 9-27-2011 by Ord. No. 235-2011]
The provisions of this chapter shall not apply
to the present use of County rights-of-way by a utility or other person
where such use was lawfully in place prior to the effective date of
this chapter. That prior use will be governed by the terms and conditions
of any prior right-of-way ordinance in effect at the time such use
was initiated. However, any expansion or modification of that prior
use or any repairs to or maintenance of that prior use will be governed
by the terms and conditions of this chapter.
All notices required to be delivered to the
County pursuant to this chapter shall be sent, certified mail, to
the following:
|
County Manager
Doña Ana County
845 North Motel Boulevard
Las Cruces, New Mexico 88007
|
County Right-of-Way Administrator
845 North Motel Boulevard
Las Cruces, New Mexico 88007
|
