Chapter 12.05 ENCROACHMENTS TO STREETS AND SIDEWALKS

(a) The public rights-of-way are unique public resources held in trust by the city for the benefit of the public. These physically limited resources require proper management by the city to maximize the efficiency and minimize the costs to the taxpayers, to protect against foreclosure of future economic expansion because of premature exhaustion of the public rights-of-way, to minimize the inconvenience to and negative effects on the public from nontraditional uses of the public rights-of-way, to promote orderly growth and development that is compatible with the surrounding neighborhood character, to ensure provision for adequate traffic circulation, utilities, and other public services in the city, and to preserve the public health, safety and general welfare.

(b) Under applicable state and federal law, the city is empowered to control access to and use of its public rights-of-way, and unless specifically preempted by state or federal law, to obtain reasonable and fair compensation for the use of its public rights-of-way.

(c) The purpose of this chapter is to serve and further the purposes identified and to enable the city to treat similarly persons who are making a similar use of the city’s public rights-of-way, as may be appropriate to comply with applicable law.

(d) Nothing in this chapter is intended to prevail over federal or state laws or franchise rights, and to the extent any conflict arises, such laws and rights shall govern. This subsection is declaratory of and does not constitute any change in existing law. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1100.)

12.05.020 Definitions.

For purposes of this chapter, the following terms shall apply. Words, terms or phrases not defined in this section shall have the meaning defined in Chapter 1.10 or, if applicable, the meaning or connotation used in any industry, business, trade, or profession where they commonly carry special meanings.

“Aboveground facility” or “AGF” means all structures, poles, pedestals, cabinets, transformers, electric meters and any other facility installed above surrounding grade in the public right-of-way.

“Arterial street” means a high-capacity local street that meets the demand for longer through trips within the city and has three or more lanes.

“Cable(s)” means any wire, coax, fiber or conduit used to house the same.

“Cable service” means (1) the one-way transmission to subscribers of video programming or other programming service; and (2) subscriber interaction which is required for the selection of or use of video programming or other programming service.

“City” means the city of Fremont.

“CPUC” means the California Public Utilities Commission.

“Department” means the department of community development.

“Excess capacity” means the volume or capacity in any existing or future duct, conduit, maintenance hole, hand hole or facility that is or will be available for use by third parties.

“Facility” or “facilities” means any cable or other wire or line, pipeline, pipe, valve, duct, conduit, converter, cabinet, pedestal, transformer, meter, tunnel, vault, equipment, drain, maintenance hole, splice box, surface location marker, pole, sign, structure, utility, awning, overhang, column, wall or other appurtenance, property, wireless facility¹, or tangible thing owned, leased, operated, or licensed by permittee that is located or is proposed to be located in, on or over the PROW.

“Feasible” means capable of being accomplished in a successful manner within a reasonable period of time, taking into account environmental, physical, financial, legal, and technological factors.

“Franchise” means a written contract or agreement executed between permittee and the city or a federal or state document granting the right to own, operate and maintain facilities in the PROW to provide services.

“Landscaping” means the planting and maintenance of shrubs, lawns and other evergreen ground cover or material, including inorganic accessory materials utilized to accent or complement the vegetation, and the installation and maintenance of irrigation systems.

“Permittee” means any person or authorized agent of any person who is seeking to encroach in the PROW or who has been issued an encroachment permit.

“Public property” means all real property and improvements owned, operated or controlled by the city, other than public right-of-way, within the city’s jurisdiction. City property includes, but is not limited to, City Hall, police and fire facilities, recreational facilities, parks, libraries, streetlights and traffic lights.

“Public right-of-way” or “PROW” means the surface of and the space above and below any street, public way, public service (including public utility) easement, or public path or thoroughfare designated for a vehicular, bicycle or pedestrian use or purpose of any nature, now or hereafter held by the city, however acquired.

“Public utility” means a CPUC-regulated service provided by a public utility provider.

“Public utility provider” means a permittee that is regulated by and has received a certificate of public convenience and necessity from the CPUC to provide a CPUC-regulated service.

“Service(s)” includes, but is not limited to, public utilities, electricity, gas, cable service, information services, sewer, storm drains, water, telecommunications, traffic controls, transit, video, or other similar services that may require or request placement of facilities in the PROW.

“Street” or “streets” means any street, road, highway, lane, court, boulevard, or other similar public way, including related facilities such as medians, parkways, sidewalks, curbs, gutters, driveways and signs, but excepting that portion of the street forming a part of the state highway system.

“Subscriber” means a person lawfully receiving or using service. (Ord. 14-2007 § 2, 5-8-07; Ord. 09-2017 § 9, 6-6-17. 1990 Code § 6-1101.)

12.05.030 Definition of encroachment.

“Encroach” or “encroachment” includes each of the following:

(a) Installation of any facility or performance of any excavation, grading, construction or erection within the public right-of-way.

(b) Going upon, over, or under any public right-of-way in a manner that prevents, obstructs, or interferes with the uses of the public right-of-way approved by the city. The uses of the public right-of-way approved by the city include the flow of vehicular, bicycle or pedestrian traffic, encroachments approved by the city in accordance with this chapter, and exclusions identified in Section 12.05.080.

(d) Placing or leaving material or equipment of any nature (such as construction materials or equipment, rubbish, trash, brush, fire, shrubs or dirt) in the public right-of-way, or placing or leaving any such material adjacent to the public right-of-way in such a manner which is likely to cause an encroachment into the public right-of-way.

(e) Traveling on the public right-of-way with a vehicle or combination of vehicles or object of dimension, weight or other characteristic prohibited by law without a permit. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1102.)

12.05.040 Major encroachments.

A “major encroachment” means an improvement or activity that qualifies as an encroachment under Section 12.05.030(a) or (b) and that is one of the following.

(a) Affects the use, operation or maintenance of a city-owned AGF.

(b) A new or expanded AGF that is greater than 30 inches in height above ground measured from the adjacent curb or, if no curb, from the crown of the street, or greater than 24 inches in either width or length.

(d) Two or more new or expanded AGFs within 1,500 feet of each other or within 1,500 feet of existing AGFs, irrespective of the dimensions specified in subsection (b) of this section.

(e) An architectural or structural projection into the PROW, including signage attached to a building.

(f) Construction activities other than minor improvements. A “minor improvement” means construction of curb and gutter, sidewalks or driveways, pervious planter strips, street improvements of less than 300 feet, and other improvements with minimal impact on the PROW.

(g) An underground vault, tank, cabinet, splice box, structure or similar facility greater than seven feet in depth, width or length. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1103.)

12.05.045 Wireless facilities.

Wireless facilities, as defined in Section 18.25.3225, shall be subject to all applicable provisions of this chapter and shall be processed in accordance with Section 18.187.150. (Ord. 09-2017 § 10, 6-6-17.)

Article II. Limited Encroachments

12.05.050 Scope of work.

A permittee may apply for an encroachment permit in order to perform any of the following work in the public right-of-way immediately adjacent to or on his or her property: driveway or sidewalk repair or reconstruction, irrigation lines crossing sidewalks and mailboxes. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1200.)

12.05.060 Permit applications and conditions.

Notwithstanding anything to the contrary in this chapter, applications for the work specified in Section 12.05.050 shall be accompanied by a detailed description of the work, the identity of the applicant and other information reasonably required by the city engineer, and a fee established by resolution of the city council. Any work performed shall not interfere with the usual and customary use of the public right-of-way, which shall be restored to and maintained in a safe and usable condition. The city engineer shall issue an encroachment permit that meets these conditions. Work authorized by this article is subject to Article V (Removal and Relocation), Article VI (Security, Indemnity and Insurance) and Article VII (Enforcement and Appeals) of this chapter. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1201.)

Article III. Encroachment Permit Applicability and Form

12.05.070 Encroachment permit – Applicability.

In addition to any agreement, license, permit or franchise required by this chapter or any other chapter of this code, and in addition to any other permit or entitlement required by local, state or federal law, permittee shall obtain an encroachment permit prior to encroaching in the public right-of-way and shall pay all fees required by this chapter. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1300.)

12.05.080 Exemptions.

No encroachment permit shall be required for any of the following:

(a) Emergency work. Nothing contained in this chapter shall be construed to prevent permittee from taking any action necessary for the preservation of life or property or for the restoration of interrupted service provided by permittee when such necessity arises during days or times when the department is closed. In the event that permittee performs any work in the PROW pursuant to this section, permittee shall apply for a permit within 24 hours after the department’s offices first open. The applicant shall submit a written statement setting forth the basis of the emergency action and describing the work performed and remaining to be performed.

(b) City employees performing work in the public right-of-way in the course and scope of the city employee’s duties.

(c) Independent contractors under direct contract with the city performing duties in the public right-of-way in accordance with the terms of the contract; provided, however, that the terms of the contract specifically authorize the contractor to perform the duties in the public right-of-way without further compliance with the requirements of this chapter.

(d) Installation of real property monuments in accordance with an approval from the city in accordance with Title 17 (Subdivisions).

(e) Installation of landscaping and irrigation, including boring irrigation lines under the sidewalk, by or on behalf of a private property owner in that portion of the public right-of-way from the back of the curb and gutter to the edge of and including a city easement for public service purposes. No tree or paving shall be installed under this subsection. Planting of trees in the public right-of-way shall be governed by Chapter 12.30 (Maintenance of Street Trees and Sidewalks).

(f) Lawful fences on private property within a city public service easement.

(g) Continuing use or maintenance of encroachments installed by permittees, or for changes thereto where such changes do not require excavation or enlargement of aboveground use or removal and replacement of improvements in the PROW.

(h) Subdivisions that have final map or parcel map approval, including an agreement for the completion of all improvement work required therefor. The city engineer may require an encroachment permit for improvements not part of an improvement agreement.

(i) Activities for which an outdoor commercial patio permit has been issued pursuant to Section 18.190.412.

(j) Any activity in the right-of-way for which a special event permit has been obtained in accordance with the provisions of Chapter 12.25 (Special Events and Parades).

(k) Signage on private property within the PROW for which a permit has been issued pursuant to Section 18.193.010.

(l) Newspaper racks in compliance with Title 18. (Ord. 14-2007 § 2, 5-8-07; Ord 11-2010 § 12, 5-25-10; Ord. 06-2022 § 1, 6-7-22. 1990 Code § 6-1301.)

12.05.090 Encroachment permit application.

An application for an encroachment permit, along with payment of any fees or deposit required by this chapter, shall be filed with the city engineer in the form and manner required by the city engineer and shall contain all of the following:

(a) The identity of permittee. If the application is made by an authorized agent of permittee, written authorization shall be provided.

(b) Engineering plans and specifications of all work to be done in the PROW. The plans and specifications shall be prepared by an engineer or other licensed professional authorized by the state of California to do so, except where such plans and specifications are waived in subsection (c) of this section. The plans and specifications shall show:

(1) The design and improvement of the street and facilities, together with the location of all existing facilities, improvements, trees and fences in the PROW along the proposed route and area of work. The form of the plans and the engineering design standards to be used shall be in accordance with Title 17 (Subdivisions), together with standard details and specifications of the city of Fremont. The final plans and specifications are subject to approval by the city engineer.

(2) If required by the city engineer, photographs or artist’s renderings of all aboveground visible equipment, from which their fully dimensioned size must be apparent. The submission may be required to include a detailed description of the equipment included within the aboveground installation and any anticipated noise levels.

(3) A master and phasing plan of the facilities to be located within the PROW, including a map in a form required by the city engineer.

(4) The specific trees, structures, improvements, facilities and obstructions, if any, that permittee proposes to temporarily or permanently remove or relocate.

(c) Engineering plans and specifications may be waived by the city engineer for encroachment permits where minor street or facilities work is required, or where existing physical conditions exist that are well defined and can be used to control the work. If uncertainties or difficulties arise from the work during the course of construction, the city engineer may require the engineering plans and specifications to be prepared to complete the work. Where engineering plans and specifications have been waived, any substitute plans and specifications required for the encroachment permit will be determined by the city engineer.

(d) A construction work plan. The information required by Section 12.05.150, including but not limited to a construction schedule, final completion date, and specific construction benchmark dates as to identified portions of the project.

(e) A traffic control plan describing the manner in which permittee will manage vehicle, bicycle, and pedestrian traffic along affected streets when installing or maintaining facilities.

(f) A public notification plan. Permittees may be required by the city engineer to provide reasonable advance notice to the public via a public notification plan of the proposed quantity, precise dimensions, design, color, type, potential noise and location of aboveground facilities. Any such requirement shall take into account the area covered and impacts of the AGFs.

(g) Certifications and consents. Upon request, permittee shall provide copies of certifications, licenses, permits, franchises or other applicable approvals of the CPUC, sanitary district, water district or any other public body having jurisdiction, to construct and operate the facilities and to offer or provide the services, including, if applicable, evidence of permission to use other public or private property.

(h) Excess capacity. If permittee is proposing an underground installation with new facilities to be constructed within the PROW, it shall agree to provide, upon request, information regarding any excess capacity that will exist in such ducts or conduits after installation of permittee’s facilities, to the city or a subsequent permit applicant.

(i) Contact with other permittees. If applicable, permittee shall first seek to use technically compatible excess capacity of other companies by contacting the other permittees specified by the city engineer in writing. If use of excess capacity is not technically compatible, permittee shall provide an explanation to the city engineer as to why any excess capacity cannot be used.

(j) Applications for AGFs must include a graffiti mitigation plan consisting of: an explanation of how permittee will maintain the AGFs free from graffiti and other defacements; a commitment to inspect AGFs at least two times a year; identification of the resources dedicated to mitigating graffiti; information for a single point of contact responsible to resolve graffiti issues should they occur; a statement that graffiti shall be removed within 48 hours of the time at which permittee is notified of graffiti; and that the AGF surfaces shall be restored to their original exterior appearance.

(k) Other. Other information relating directly to PROW management and use as may reasonably be required by the city engineer. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1302.)

12.05.100 Issuance of an encroachment permit.

(a) Encroachments. The city engineer shall issue an encroachment permit for an encroachment upon review of a completed application and a determination that permittee has complied or will comply with all applicable requirements of this chapter, except that a permit for a major encroachment shall be governed by subsection (b) of this section.

(b) Major Encroachments Are Discretionary. Each permit for a major encroachment shall be subject to all applicable requirements of this chapter. In determining whether to grant or deny a permit for a major encroachment, the city engineer shall consider the following:

(1) The capacity of the PROW to accommodate permittee’s proposed facilities and facilities known to be needed in the future.

(2) The capacity of the PROW to accommodate known additional facilities if the permit is granted.

(3) The damage or disruption, if any, to the PROW or any public or private facilities, improvements, aesthetics, services, pedestrian or vehicle travel or landscaping if the permit is granted.

(4) The availability of technically compatible existing facilities or excess capacity, or alternate routes and/or locations for the proposed facilities which would be less disruptive or which better protects the PROW for its dedicated use.

(5) The adverse aesthetic or blighting effect of any facilities by virtue of their design, color, dimensions, locations and quantity.

(6) Compliance with the requirements of this chapter, the code and other federal, state and local requirements.

(7) Completion of any environmental review required under the California Environmental Quality Act (CEQA).

(8) The extent to which permittee has a legal right to use the PROW.

(c) Modifications. Any approval of a permit may require modifications to the proposed activities pursuant thereto as a result of the city engineer’s consideration of the factors set forth above, including by limiting or changing the number, size, color and location of the aboveground facilities and equipment proposed to be installed and/or requiring the installation of landscape or other camouflaging techniques or requiring undergrounding to minimize adverse visual impacts and obstructions.

(d) Fees. As a condition of the issuance of any permit, permittee shall pay and submit all applicable cost-based fees authorized by Section 12.05.300 or otherwise by this chapter and assessed by resolution of the city council.

(e) Right to Inspect. Upon the provision of reasonable notice by the city, permittee shall allow the city the unrestricted right to inspect permittee’s work at any time the city deems appropriate.

(f) Duration and Validity. Permits shall be void if the work has not begun within 90 calendar days of the start date specified in the permit, if the work under the permit is not prosecuted diligently to its conclusion, or if the work, including restoration of pavements and surface improvements, has not been completed within the specified duration; provided, however, that the city engineer may, upon good cause, issue extensions to the start date, the duration of the work, or both upon request from permittee.

(g) Permit Available On Site. The permit or a duplicate shall be available for review at the site of the work for the duration of the work and shall be shown, upon request, to any police officer or any other city employee with jurisdictional responsibility over activities in the PROW. (Ord. 14-2007 § 2, 5-8-07; Ord. 09-2017 § 11, 6-6-17. 1990 Code § 6-1303.)

12.05.110 Facilities agreements.

No encroachment permit shall relieve permittee of any obligations involved in obtaining pole or conduit space from the city, any utility permittee, or from others maintaining utilities in the city’s PROW. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1304.)

12.05.120 Administration – Declaration of powers and authority.

The city engineer is designated the officer of the city who is responsible for the continuing administration of this chapter, unless otherwise designated by the city manager. Unless prohibited by federal, state or local law, the city engineer may further delegate his or her powers and authority to a duly authorized representative with respect to administering this chapter. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1305.)

Article IV. Regulations Governing the Public Right-of-Way

12.05.130 Conditions of use of PROW.

(a) All facilities of permittee shall be so located, constructed, installed and maintained so as not to endanger, interfere with or limit the usual and customary use and/or traffic and travel upon the PROW as well as adjacent private property.

(b) Permittee and all of its employees and agents shall comply with all applicable local, state and federal laws, ordinances, regulations, orders and other similar requirements in the installation, operation, maintenance, or removal of its facilities.

(c) In the event permittee creates a hazardous or unsafe condition or an unreasonable interference with property, such permittee shall eliminate such condition or interference.

(d) Permittee shall provide reasonable advance notice if permittee plans to perform any work or activity in the PROW in a manner that, due to duration or location of the work, has the potential to disrupt traffic flow or adjacent properties.

(e) Permittee shall not place facilities where it will interfere with any of the following:

(1) Existing and known future city uses of the PROW.

(2) The rights of private property owners as determined by the city engineer.

(3) Gas, electric, sewer or telephone fixtures.

(4) Water hydrants, mains and other water-related appurtenances.

(5) Sewers, storm drains, v-ditches or any wastewater stations.

(6) Any traffic control system.

(7) Any other city facility.

(f) The minimum cover over any and all pipes or conduits installed in the PROW shall be 36 inches from the finished surface, existing or planned, whichever is deeper, except in arterial streets where the minimum cover shall be 42 inches. In areas of the PROW between the back of the curb and through and including the public service easement, minimum cover shall be 24 inches, except that only 18 inches minimum cover shall be required below concrete sidewalks and driveways. Additional depth may be required due to the size of the conduit or other engineering considerations as determined by the city engineer. Deviations from the minimum cover may be allowed by the city engineer because of topography, structures, or other engineering necessity.

(g) AGFs in residential areas shall be located adjacent to side or rear yard lot lines, except where impracticable due to the functionality of the AGF as determined by the city engineer, and outside of triangular sight areas as defined in Section 18.171.020(b).

(h) All facilities of permittee shall be screened to the extent practicable.

(i) It shall be the responsibility of permittee to mark its facilities with search wire if possible and to locate and mark or otherwise visibly indicate and alert others to the location of its underground facilities before employees, agents, or independent contractors of any entity perform work in the marked-off area. Permittee shall participate in and adhere to the practices of underground services alert (“USA”) or its successor notification system and provide at least 48 hours’ prior notice to USA prior to any excavation.

(j) Ground Signs. Ground signs and supporting posts, poles, columns or structures shall not project into or be placed in or upon the PROW, except as permitted by Section 12.05.080(k). (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1400.)

12.05.140 Undergrounding of facilities.

(a) Promotion of Undergrounding. It is the policy of the city to promote undergrounding of facilities whenever and wherever feasible, as determined by the city engineer in his or her sole discretion, in the following circumstances:

(1) Whenever existing facilities are located underground along a particular PROW, new facilities must be installed, at permittee’s sole expense, underground along that PROW. Whenever any aboveground facilities are being located or relocated underground by a permittee along a particular PROW, that permittee shall coordinate with other permittees to jointly locate or relocate all facilities underground on a cost-sharing basis in a manner consistent with applicable law.

(2) AGFs are not permitted in historic conservation districts or historical overlay districts, or within 50 feet of an historical resource as defined in Chapter 18.175 (Historic Resources).

(3) AGFs that are not major encroachments shall not be required to be undergrounded, except in areas where all AGFs are undergrounded or in the historic areas described in subsection (a)(2) of this section.

(b) Limits on Aboveground Facilities. It is the additional policy of the city to limit the number and control the location of AGFs used in conjunction with underground facilities consistent with the technical requirements for providing high quality utility service. Permittees shall place all newly installed facilities underground or in flush-mounted vaults, whenever feasible. Permittees shall coordinate with all affected property owners to locate all newly installed AGFs to minimize inconvenience and disruption to residents.

(c) Excess Capacity. Facilities shall be installed within existing underground ducts or conduits whenever excess capacity is available on reasonable terms. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1401.)

12.05.150 Construction work plan.

(a) Submittal Requirements. Permittee shall submit a construction work plan as required by the city engineer. The plan shall include the date for work completion, facility information (such as photographs and locations), hours of construction, a traffic control plan, and contact information. No permits shall be issued until the construction work plan is reviewed pursuant to all relevant public health, safety, and welfare criteria and approved by the city engineer. During construction, permittee shall, at the request of the city engineer, submit to the city engineer regular progress reports describing in detail the status of construction in relation to the construction work plan.

(b) Correction of Adverse Impacts. Permittee shall immediately correct any adverse impact to the city’s use or operations or the use or operations of a third party caused by permittee construction activities in the PROW at no cost to the city.

(c) Notification. Permittee shall provide written notification to the city engineer of any construction and/or maintenance activities undertaken in PROW, whether undertaken pursuant to permit or otherwise, at least 48 hours prior to commencement of such activities, unless the activities have been previously reported to the city engineer. Permittee shall notify the city engineer upon completion of the work. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1402.)

12.05.160 Construction and maintenance.

(a) Methods of construction, installation, maintenance and repair of any facilities shall comply with the most current editions of the zoning code, building code, National Electrical Safety Code, the National Electric Code, the city of Fremont standard specifications and standard details and the municipal code, as they are modified from time to time, and any applicable federal, state or local statutes, regulations, guidelines, or requirements.

(b) All construction, installation, maintenance and repair shall treat the aesthetics of the property as a priority and shall not substantially affect the appearance or the integrity of the PROW, the facilities therein, or building and structures outside of the PROW.

(c) Where feasible as determined by the city engineer in his or her sole discretion, permittee shall place all aboveground active and passive equipment in flush-mounted or low-profile waterproof pedestals whose design, size, location, color (within manufacturer’s specifications), appearance and placement have been previously approved by the city engineer in writing.

(d) During construction and maintenance, permittee shall identify its construction sites by name and category (i.e., “telecommunications” or “electricity”) with sufficient clarity so that traffic flowing in both directions can determine the nature of the project and the entity upon whose behalf the construction is being undertaken.

(e) Permittee shall keep the construction site in a clean, orderly and safe manner as directed by the city engineer. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1403.)

12.05.170 Construction default.

Upon the failure, refusal or neglect of permittee to cause any construction, repair, or to comply with the terms of any permit, thereby creating an adverse impact upon public safety or convenience, the city engineer may cause such work to be completed in whole or in part, and upon so doing shall submit to permittee an itemized statement of costs. The permittee shall be given reasonable advance notice of the city engineer’s intent to exercise this power, and an opportunity to cure the default. The permittee shall pay to the city the actual costs incurred. The city may deduct amounts not so timely paid from the security fund, performance bonds or any deposit. Construction being performed in a manner contrary to the provisions of this chapter shall be subject to the provisions of Section 12.05.340. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1404.)

12.05.180 Facility maintenance.

(a) Cabinet Treatment and Graffiti Mitigation. The exterior of AGFs shall resist graffiti or be painted with anti-graffiti paint and be maintained in a “like new” condition.

(b) Cabinet Durability. The exterior of AGFs shall be manufactured of such quality and materials to resist denting, buckling and unfastening, and shall be maintained in “like new” condition. AGFs that have been damaged to not be “like new” shall be repaired or replaced by permittee.

(c) Each visible facility installed in the PROW shall be clearly identified with the name of the owner and a toll-free telephone number for permittee.

(d) Each visible facility other than AGFs shall be maintained in a “like new” condition. Utility boxes, vaults, lids, covers and other appurtenances that are damaged, broken or uneven shall be reset or replaced to grade by permittee forthwith. Facilities that are considered hazardous by the city engineer shall be corrected immediately. If permittee fails to correct the noted facilities, the city engineer may cause to have the facilities corrected under the provisions of Section 12.05.210.

(e) Permittee assumes all responsibility for damage or injury resulting from the maintenance of any in-ground and aboveground component. If permittee fails to comply with any written demand of the city engineer to correct that which caused such injury or damage, the city may perform said work and withdraw its costs and expenses from the security fund or other security provided by permittee. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1405.)

12.05.190 Excavations.

(a) Applicability. Each excavation in the PROW pursuant to this chapter, whether or not a major encroachment, shall be performed in accordance with this chapter and with the standard plans and specifications of the department and any department orders or regulations.

(b) Notices. The permittee shall post and maintain notice at the site before and during the excavation, and provide reasonable advance notice to each property owner on the street affected by the excavation.

(c) Limits on Excavation in the Public Right-of-Way. It is unlawful for permittee to make, cause, or permit to be made any excavation in the PROW outside the boundaries, times, and description set forth in the permit. Wires or cables installed underneath the surface of the PROW shall be inside pipes or conduits, unless the city engineer determines that the purpose of the cable or wire is such that it need not be protected. No single excavation site shall be longer than 1,200 feet in length at any time except with the prior written approval of the city engineer.

(d) Excavation Sites. Permittee shall cover an open excavation with nonskid steel plates ramped to the elevation of the contiguous street, pavement, or other PROW, or otherwise protected as directed by the city engineer. Permittee shall keep the area surrounding the excavation clean and free of loose dirt or other debris, materials and equipment in a manner deemed satisfactory to the city, including if necessary a storm water pollution prevention plan. Fill material, sand, aggregate, and asphalt-coated material may be stored at the site only if it is stored in covered, locked containers. Permittee shall be subject to city engineer orders regarding excavation sites, including: hazardous material guidelines for data collection; disposal, handling, release, and treatment of hazardous material; site remediation; and worker safety and training, and shall comply with all federal, state, and local laws regarding hazardous materials. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1406.)

12.05.200 Coordination of excavation.

(a) Pavement Management Plan and Condition Index. The department shall prepare a two-year pavement management plan showing all streets proposed to be resurfaced and reconstructed in the PROW. Streets contained in the pavement management plan database will be assigned a pavement condition index number. The two-year pavement management plan and the pavement condition index shall be made available for public inspection to coordinate proposed excavation work. Streets that have been recently improved shall be identified as three types:

(1) “Type One” means new pavement, including reconstruction and overlay.

(2) “Type Two” means new slurry seal and cape seal.

(3) “Type Three” means new fog seal, sand seal or rejuvenation treatment.

(b) Restrictions on Cutting City Streets.

(1) Permittee shall coordinate the timing of excavation work with the city considering the pavement management plan and pavement condition index. Permittee shall perform no excavation work in or on the following streets within the stated time frames: five years for Type One, three years for Type Two, and two years for Type Three streets. Streets that are not classified Type One, Type Two or Type Three, but due to their pavement condition indexes are found to be sound, shall not be excavated by permittee. Streets intended for high traffic volumes such as arterial streets shall not be excavated by permittee.

(2) Notwithstanding the requirements of this section, the city engineer may authorize performance of excavation work by permittee at any time if the city engineer finds that either (A) the excavation is necessary to protect the public health or safety, or (B) the excavation does not adversely impact the life of the streets on which the excavations are to be performed, or (C) finds that there is no other feasible alternative for the installation of permittee’s facilities. The city engineer may place additional conditions on a permit for which such excavation is authorized. The city engineer’s decision in this regard shall be final. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1407.)

12.05.210 Restoration of the PROW.

(a) Restoration. In any case in which the sidewalk, street, or other portions of the PROW is or is caused to be excavated, removed, or otherwise damaged, permittee shall restore or cause to be restored the PROW in the manner prescribed by the orders and standard plans, details and specifications of the city engineer. At a minimum, permittee shall replace, repair or restore the PROW at the place of work to the same condition existing prior thereto unless otherwise provided in the permit. Permittee shall remove all obstructions, impediments, material or rubbish caused or placed upon the public right-of-way under the permit, and shall do any other work or perform any act necessary to restore the public street to a safe and usable condition. Activities concerning backfilling, replacement of pavement base, and finished pavement shall be performed in a manner consistent with this section and as directed by the city engineer.

(b) Street Cutting, Multiple Cuts within One Block. A permittee that performs three or more street cuts in one block within a five-year period shall grind and overlay the street for the entire length of the block. The city engineer may waive or modify this requirement depending upon the length of the block, the location of the street cuts and the condition of the street. “Street cut” means the cutting of pavement in the PROW, including the associated excavations.

(c) Incomplete Excavation – Completion by the City. In any case where an excavation or other work is not completed or restored in the time and manner specified in the permit, this chapter, or the orders and standard plans and specifications of the department, permittee shall complete the excavation or restoration as directed by the city engineer. If permittee should fail, neglect, or refuse to comply with the order, the city engineer may complete or cause to be completed such excavation or restoration in such manner as the city engineer deems expedient and appropriate. The permittee shall compensate the city for any costs associated with the administration, construction, consultants, equipment, inspection, notification, remediation, repair, restoration, or any other actual costs incurred by the city that were made necessary by such excavation or restoration. The cost of such work also may be deducted from permittee’s security fund pursuant to Section 12.05.300. The city engineer’s determination as to the cost of any work done or repairs made shall be final.

(d) Completion. Completion of an excavation or restoration by the city in accordance with this chapter shall not relieve permittee from liability for future pavement failures as a result of the excavation.

(e) Responsibility. Permittee shall exercise due care to avoid damage to existing PROW improvements and facilities, utility facilities, adjacent property, roadside trees, shrubs and plants that are outside of the area of encroachment in the permit. If the improvements, facilities or other objects in the PROW or on adjacent property are damaged by action of permittee, they shall be replaced, repaired or restored by permittee, or caused to be repaired at permittee’s expense by the owner of a facility when required by state or local law or regulation, to a condition as good as when permittee first entered upon the PROW. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1408.)

12.05.220 Post-excavation repair and maintenance.

(a) Repair and Maintenance Obligation of Permittee. Each permittee that excavates or causes to be made an excavation in the PROW shall be responsible to inspect, maintain, repair, or reconstruct the site of the excavation so as to maintain a condition acceptable to the city engineer until such time as the site of the excavation is reconstructed or overlaid by the department, or pursuant to a subsequently issued encroachment permit.

(b) Subsurface or Pavement Failures. In the event that subsurface material or pavement over or immediately adjacent to any excavation should become depressed, broken, or fail in any way at any time after the work has been completed, the city engineer shall investigate the cause and in his or her best judgment determine the person(s) responsible, if any, for the failure in the subsurface or surface of the PROW and shall notify such person(s) of the condition, its location, and the required remedy. Such person(s) shall repair or restore, or cause to be repaired or restored, such condition as directed by the city engineer.

(c) Repair by the City. In the event that any person(s) fails, neglects, or refuses to repair or restore any condition pursuant to the city engineer’s notice, the city engineer may repair or restore, or cause to be repaired or restored, such condition in such manner as the city engineer deems expedient and appropriate. Such person(s) shall compensate the department for any expenses associated with the repair or restoration, the cost of which may be deducted from permittee’s security fund. The city engineer’s determination as to the cost of the repair or restoration performed shall be final. Repair or restoration by the department in accordance with this section shall not relieve the person(s) from liability for future pavement failures at the site of the repair or restoration.

(d) Emergency Remediation by City. If the city engineer determines that the site of an excavation is hazardous or constitutes a public nuisance, public emergency, or other imminent threat to the public health, safety, or welfare that requires immediate action, the procedures and remedies set forth in this section shall apply. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1409.)

12.05.230 Mailboxes.

A mailbox may be placed and maintained within a public right-of-way if a permit has been obtained therefor pursuant to this chapter and so long as such mailbox and its placement comply with the rules and regulations of the United States Postal Service, except as follows:

(a) No permit shall be required of the Postal Service for the placement of collection and storage boxes and the like, but no such box shall be so placed or maintained as to endanger the life or safety of the traveling public.

(b) No box for delivery of mail shall be placed or maintained within the limits of any public right-of-way in any area where curbs, gutters and sidewalks have been constructed abutting residential uses, except where pursuant to its rules, regulations, policies, procedures, or practices, the United States Postal Service would not deliver mail to a box unless it were placed within such right-of-way or within a required front or side yard. If and when any such Postal Service standards are amended so that mail delivery to residences would be carried out without any requirement that delivery boxes be placed within the public right-of-way or any required yard, the city engineer shall notify the occupant of each residential lot served by a mail delivery box in the public right-of-way to remove such box therefrom within 60 days of the date of notice, and each such occupant shall remove such box within said period. This subsection shall not be construed to allow the placement or relocation of any mail delivery box within the public right-of-way where such placement or relocation is unnecessary for the continued delivery of mail.

(c) In any area where boxes for delivery of mail are permitted to be located within the limits of any public right-of-way, no such box, whether or not a permit has been issued therefor, shall be placed or maintained in any location which creates a hazard to the traveling public or an undue obstruction to the free movement of the traveling public, irrespective of when such situation first came into existence. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1410.)

12.05.240 Landscaping.

(a) No hedge, shrub or other planting shall be maintained in the public right-of-way adjacent to the sidewalk which exceeds a height of 30 inches measured vertically above the top of curb, with the exception of street trees.

(b) The city may issue a permit to an applicant to perform work or otherwise encroach in planting areas under this chapter. If the plantings are damaged or disturbed in the course of an authorized encroachment, they shall be removed and replaced by the permittee unless the permit specifically states otherwise. (Ord. 14-2007 § 2, 5-8-07; Ord 11-2010 § 13, 5-25-10. 1990 Code § 6-1411.)

12.05.250 Marking of streets, curbs and sidewalks prohibited without permit.

No person, without first having obtained a permit, shall solicit on a commercial or donation basis to place or maintain any number, figure, letter, carving, drawing, design, or other marking upon any street, sidewalk, or curb; except that markings for the purpose of identifying survey, utility or construction locations shall not be subject to this chapter. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1412.)

12.05.260 Monuments.

Any monument of granite, concrete, iron or other lasting material set for the purpose of locating or preserving the lines and/or elevation of any street or other public right-of-way, property subdivision, or a precise survey point or reference point shall not be removed or disturbed or caused to be removed or disturbed without first obtaining permission from the city engineer to do so, such permission to be granted in conformance with requirements as set forth in specifications established by the city engineer. Replacement of any removed or disturbed monument will be at the expense of the permittee. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1413.)

Article V. Removal and Relocation

12.05.270 Relocation, support and temporary disconnection.

Permittee, at its own expense and pursuant to a timeline approved by the city engineer, shall protect the PROW and support or temporarily disconnect or relocate any of permittee’s facilities when necessitated by reason of: a change or establishment of street grade or width; street construction, resurfacing or maintenance work; temporary or permanent street closing not for the benefit of a private party; public safety; traffic conditions; and installation of sewers, drains, water pipes, storm drains, lift stations, force mains, street light facilities, traffic signal facilities, tracks, or any other public use of the public right-of-way. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1500.)

12.05.280 Duty to remove facilities from PROW and public property.

(a) The city engineer may order permittee to remove its facilities from public property or the public right-of-way at its own expense whenever the following occurs: permittee ceases to operate all or part of the facility for a continuous period of 12 months; permittee ceases and fails to complete construction of the facility outlined in the encroachment permit within the term or duration of the encroachment permit; or permittee’s encroachment permit is revoked.

(b) If not removed voluntarily by permittee, then the city engineer may notify permittee that should removal of the property not be accomplished within a specified reasonable time, the city engineer may order the removal of the facilities at permittee’s expense. The security fund identified in Section 12.05.300 shall be available to pay for such work.

(c) If the city removes permittee’s facilities and permittee does not claim the property within 30 days, then, as permitted by law, the city may declare the property surplus and sell it, with the proceeds of such sale going to the city.

(d) When a permittee removes its facilities from the PROW, permittee shall, at its own expense and as directed by the city engineer, restore the PROW.

(e) Permittee shall maintain the deactivated facilities at no cost to the city until removed by permittee. The permittee shall provide a written list to the city engineer of all deactivated facilities located within the city upon request. The permittee shall remove or disable nonuseful facilities in accordance with a removal plan approved by the city engineer.

(f) A permittee may abandon any facilities in place if approved and as directed by the city engineer. Upon such occurrence, permittee shall cause to be executed, acknowledged, and delivered to city such instruments as city engineer shall prescribe and approve transferring and conveying the ownership of such property to city. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1501.)

12.05.290 City vacation or abandonment.

Subject to federal or state law or franchise rights, in the event any PROW or portion thereof used by permittee shall be vacated by the city, upon reasonable notice permittee shall remove its facilities at its cost from the PROW unless specifically permitted to continue. As a part of the removal, permittee shall restore, repair or reconstruct the area where the removal has occurred, to a condition as may be required by the city engineer. In the event of any failure, neglect or refusal of permittee, after 30 days’ notice by the city engineer, to do such work, city engineer may cause it to be done, and permittee shall pay to city the actual costs incurred. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1502.)

Article VI. Security, Indemnity and Insurance

12.05.300 Security and fees.

(a) Security Fund.

(1) Prior to the effective date of any encroachment permit, the city engineer may require permittee to deposit a sum specified as security (“security fund”) for the faithful performance by permittee of all of the provisions of any encroachment permit, compliance with this chapter, with all orders, permits and directions of the city engineer. The security fund shall be deposited and maintained as directed by the city engineer. As an alternative to a security fund, permittee may furnish a bond or certificate of deposit. The provisions of this subsection shall be satisfied if similar security is provided in compliance with a city franchise or other written agreement.

(2) The city engineer may immediately withdraw any unpaid amount from the security fund, with interest, if permittee fails, after prior written notice, to: pay to the city any fees that are due and unpaid; repay upon demand any damages, costs or expenses which the city is compelled to pay by reason of any act or default of permittee in connection with its encroachment permit; or comply with any provision of any encroachment permit or this chapter. After notice to permittee of such withdrawal, permittee shall restore the security fund to the original amount.

(3) The city’s rights stated herein are in addition to all other rights of the city, and no action, proceeding or exercise of any right with respect to such security fund shall affect any other right the city may have.

(b) Permit Fee. Each permittee shall pay to the city a fee established by resolution of the city council to compensate the department for the cost incurred to process applications for encroachment permits under the provisions of this chapter and to inspect the work. Government agencies shall be exempt from the permit fee but shall be charged plan checking and inspection fees. If the fee schedule is inapplicable, the city engineer may accept a fee deposit for plan check, permit and inspection to cover actual costs.

(c) Collection, Return, and Refund of Security Funds and Fees. Permit and inspection fees shall be returned if an application is denied or withdrawn, less any plan check fees if such work is conducted. Upon expiration of three years from the satisfactory completion of the work as determined by the city engineer, permittee’s security, less deductions made, shall be returned to permittee or to its assigns. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1600.)

12.05.310 Indemnity.

To the maximum extent permitted by law, permittee shall at all times defend, indemnify, protect, save harmless, and exempt the city, the city council, its officers, agents, servants, attorneys and employees from any and all penalties, damages or charges arising out of claims, suits, demands, causes of action, award of damages, imposition of fines and penalties, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which arise out of, or are caused by, the construction, erection, location, performance, operation, maintenance, repair, installation, replacement, removal or restoration of facilities or performance of any work within the city based upon any act or omission of permittee, its agents or employees, contractors, subcontractors, independent contractors, or representatives except for that which is attributable to the sole negligence or willful misconduct of the city, the city council, its officers, agents, servants, attorneys and employees. With respect to the penalties, damages or charges referenced herein, reasonable attorneys’ fees, consultants’ fees, and expert witness fees are included as those costs which shall be recovered by the city. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1601.)

12.05.320 Liability insurance.

Except as provided in or as supplemented by any franchise agreement, license or permit, permittee shall secure and maintain general liability, property damage or other appropriate insurance as reasonably determined by the city engineer and the risk manager. Before permittee commences any construction in the PROW, permittee shall deliver the policies or certificates representing the insurance to the city engineer. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1602.)

Article VII. Enforcement and Appeals

12.05.330 Revocation and termination.

In addition to all other rights and powers retained by the city, upon reasonable written notice and an opportunity to cure, as provided in Section 12.05.350, the city engineer shall have the right to revoke any encroachment permit granted hereunder and to terminate all rights and privileges of the encroachment permit hereunder in the event of any of the following:

(a) Violation of any material provision of this chapter or the encroachment permit.

(b) The failure to begin or complete construction as provided under the encroachment permit.

(c) Failure to pay any encroachment permit fee or other payment required by any encroachment permit granted pursuant to this chapter, to the city when due. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1700.)

12.05.340 Stop work orders, new conditions and permit suspension.

If the city engineer has determined that permittee has violated this chapter or that an excavation or other work in the PROW poses a hazardous situation or constitutes a public nuisance, public emergency, or other threat to public health, safety, or welfare, the city engineer is authorized to issue a stop work order, to impose new conditions upon a permit, or to suspend a permit by notifying permittee of such action in a written or electronic communication. Any work stopped shall not resume until authorized in writing by the city engineer. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1701.)

12.05.350 Opportunity to cure and correct.

(a) Not more than 14 days following receipt of written notice from the city engineer, or such period as may otherwise be provided in this chapter, permittee shall cure and correct any violation of this chapter. If permittee has commenced and is diligently pursuing the cure of the noticed violation and cannot cure and correct the noticed violation within the required time period, the city engineer may grant additional time as the city engineer determines is reasonably necessary for permittee to cure and correct.

(b) Failure by permittee to cure and correct violations of this chapter shall subject permittee to revocation or retention of security provided under Section 12.05.300 or permit termination or revocation pursuant to Section 12.05.330. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1702.)

12.05.360 Failure of the city to enforce this chapter.

A permittee shall not be excused from complying with any of the requirements of this chapter, or any subsequently adopted amendments to this chapter, by any failure of the city on any one or more occasions to seek, or insist upon, compliance with such requirements or provisions. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1703.)

12.05.370 Appeals.

(a) If permittee is aggrieved by a decision of the city engineer under this chapter, except as otherwise provided, permittee may appeal the decision in writing to the city manager by filing with the city clerk a statement addressed to the city manager setting forth the facts and circumstances regarding the city engineer’s decision and the basis for the appeal. The appeal shall be accompanied by a fee as established by resolution of the city council. The city clerk shall provide written notification of the time and place set for hearing the appeal. The city manager, not less than 10 days from the date on which the appeal was filed with the city clerk, shall hear the appeal and all relevant evidence, and shall determine the merits of the appeal. The city manager may sustain, overrule or modify the action of the city engineer, and the decision of the city manager shall be final, except where further appeal to the city council is required by law. Such further appeals shall be governed by Chapter 1.25 (Appeals to Council). “City manager” means the city manager or his or her designee.

(b) The right to appeal to the city manager shall terminate upon the expiration of 10 days following personal delivery to permittee or the deposit of a letter in the United States mail advising permittee of the action of the city engineer and of the right to appeal such action to the city manager. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1704.)

As defined in Section 18.25.3225.