Chapter 13.18
USE OF PUBLIC RIGHTS-OF-WAY
Sections:
13.18.040 State video franchisee permit application and appeal procedures.
13.18.070 Permit expiration and renewal.
13.18.090 Existing utility locations.
13.18.120 Street opening, sidewalk, curb and gutter, and driveway permits.
13.18.150 Removal and relocation.
13.18.010 Definitions.
For the purposes of this chapter, the following terms, phrases, words and their derivations shall have the meaning given in this section:
(1) "Construction Supervisor" means the City inspector for all encroachment permits;
(2) "Director of Public Works" means the Director of Public Works and his/her designee or the person designated by the Director of Public Works to implement and enforce the provisions in this chapter;
(3) "Encroachment" includes any going over, upon, under or using any public right-of-way in such manner as to prevent, obstruct or interfere with its normal use;
(4) "Excavation" means any opening in the surface of a public right-of-way made in any manner whatsoever, except an opening into a lawful structure below the surface of a public right-of-way, the top of which is flush with the adjoining surface and so constructed as to permit frequent opening without injury or damage to the public right-of-way;
(5) "Facility" means pipe, pipeline, tube, main, service, trap, vent, vault, manhole, meter, gauge, regulator, valve, conduit, wire, tower, pole, pole line, anchor, cable, junction box, transformer or any other material, structure or object of any kind or character, whether enumerated herein or not, which is or may be lawfully constructed, left, placed or maintained in, upon, along, across, under or over any public right-of-way;
(6) "Permittee" means any person or entity that proposes to do work or encroach upon a public right-of-way and has been issued a permit for such encroachment;
(7) "Public right-of-way" means all or part of the surface, the air space above the surface, and the area below the surface of the public streets, roads, sidewalks, lanes, courts, ways, alleys, boulevards, and places, including, without limitation, all public utility easements and public service easements as the same now or may thereafter exist that are under the jurisdiction of the City;
(8) "State video franchisee" means any cable operator or video service provider that, pursuant to Division 2.5 of the Public Utilities Code of the State of California, has been granted a state franchise to provide cable or video service by the California Public Utilities Commission and whose video service includes all or part of the City;
(9) "Utility" means all persons or entities supplying water, gas, sewer, electric, communication or similar associated service.
(10) "Streetary" or "streetaries" shall mean an outdoor eating area that operates within and uses parking spaces and/or sidewalks within the public right-of-way directly adjacent to the food service establishment street frontage and/or operates within and uses the public right-of-way on streets or portions thereof that have been closed to vehicular traffic. (Ord. 1101 § 3, 2023; Ord. 957 § 2 (part), 2007).
13.18.020 Permit required.
(a) No person shall perform any work, construct any facility, make any excavation or fill any excavation, store materials and/or vehicles in or upon any real property in which the City has an interest, whether by title, easement, right-of-way, license or otherwise, without first obtaining an encroachment permit to do so from the Director of Public Works.
(b) Nothing in this chapter shall prevent any person from constructing, repairing, maintaining, or removing any facility in the public right-of-way as may be necessary for the preservation of life or property when an urgent necessity arises. The person making emergency use of and encroaching upon the public right-of-way shall apply for an encroachment permit within one (1) business day of commencing such use or encroachment.
(c) No encroachment of any kind, which impedes, obstructs or denies pedestrian, vehicular or other lawful travel within the limits of the public right-of-way or which impairs adequate sight-distance or safe pedestrian or vehicular traffic, will be permitted.
(d) Notwithstanding subsections (a) and (b) of this section, an encroachment permit shall not be required for streetaries that have obtained and maintain a streetary encroachment permit pursuant to Section 13.30.020. (Ord. 1101 § 4, 2023; Ord. 957 § 2 (part), 2007).
13.18.030 Permit application.
No encroachment permit shall be issued unless a written application (on a form provided by the Director of Public Works) for the issuance of an encroachment permit is submitted to the Director of Public Works. The written application shall state the name of the applicant; the name, address, telephone number, and business information for the owner or contractor on behalf of whom the applicant is submitting the application; the location and a description of the work to be done; and the approximate time which will be required to complete such work. When required by the Director of Public Works, the applicant shall enclose with, attach, or add to the permit application a map, plat, sketch, diagram, or similar exhibit of a size and in such a quantity as prescribed by the Director of Public Works, on which shall be plainly shown any and all information necessary to locate, delineate, illustrate, or identify the proposed use or encroachment and the right of the applicant to so use or encroach thereon. (Ord. 957 § 2 (part), 2007).
13.18.040 State video franchisee permit application and appeal procedures.
(a) The Director of Public Works shall approve or deny an encroachment permit application by a state video franchisee within sixty (60) days of receiving a completed application. An application for an encroachment permit is complete when the applicant has complied with all applicable requirements of this chapter concerning such application and all other statutory requirements, including the California Environmental Quality Act (Division 13 (commencing with Section 2100) of the Public Resources Code of the state of California).
(b) The time period set forth in subsection (a) may be extended on mutual agreement by the applicant and the City.
(c) If the City denies the application, the Director of Public Works shall, at the time of notifying the applicant of the denial, furnish the applicant a detailed explanation of the reasons for the denial.
(d) Any state video franchisee whose encroachment permit application is denied may, within thirty (30) days of receiving the explanation of the denial required, file an appeal to the City Council. In determining such appeal, the City Council shall consider whether the denial of the encroachment permit is consistent with this chapter and other applicable City, state and federal law. If the City Council denies the state video franchisee’s appeal, it shall issue a written decision setting forth the reasons for the denial. The City Council’s decision shall be final. (Ord. 957 § 2 (part), 2007).
13.18.050 Permit effective.
An encroachment permit, regardless of when dated, shall not be in effect until the applicant has obtained all licenses and other permits required by law and paid the required permit fees. The use of City property by permittee shall be limited to the purposes set forth in the encroachment permit and no structures of any kind, except those expressly permitted, shall be erected or placed thereon. (Ord. 957 § 2 (part), 2007).
13.18.060 Permit fees.
Permit fees shall be paid in accordance with the master fee schedule or for actual City staff time, including, without limitation, processing, field marking, engineering, and inspection fees and shall be paid by the applicant prior to the issuance of any encroachment permit. In addition, the City may charge an annual fee for private encroachments for the benefit of maintaining a facility in the public right-of-way. All applicable permit fees, including those for the issuance of a permit and for the benefit of maintaining an encroachment in the public right-of-way, shall be established by resolution of the City Council. (Ord. 957 § 2 (part), 2007).
13.18.070 Permit expiration and renewal.
An encroachment permit shall become null and void if work is not commenced within ninety (90) days after the date of application. A permit may be extended or renewed upon request to the Director of Public Works provided no changes have been made from the original conditions for issuance of the original permit. (Ord. 957 § 2 (part), 2007).
13.18.080 Repair of damage.
Permittee shall be responsible for any damage to City street pavements, existing utilities, curbs, gutters, sidewalks or to any private property or improvements to the extent attributable to its installation, maintenance, repair or removal of facilities in the public right-of-way. Permittee shall repair, replace and restore in kind any such damaged improvements at its sole expense and with the approval of City. Any and all site restoration and clean-up shall be done by a licensed and insured contractor. (Ord. 957 § 2 (part), 2007).
13.18.090 Existing utility locations.
City shall not be responsible for exact locations or depths of existing utilities or other facilities. (Ord. 957 § 2 (part), 2007).
13.18.100 Liability.
Permittee shall be responsible and liable for, and shall hold the City and its commissions, boards, officers, and employees free and harmless from, any and all liens and claims involving personal injury or property damage of any kind due directly, or indirectly, to permittee’s operations and use of City’s lands. (Ord. 957 § 2 (part), 2007).
13.18.110 Regulations.
(a) The construction, operation, maintenance and repair of facilities in the public rights-of-way shall be performed in compliance with all laws and practices affecting such facilities. This shall include, but not be limited to applicable City standards, including safety precautions (warning signs, barricades, lights) and all applicable zoning and safety codes, construction standards, noise regulations, regulations for providing notice to persons that may be affected by such facilities construction, and such directives or additional conditions placed on the encroachment permit by the Director of Public Works governing the time, place and manner in which facilities may be installed in the public rights-of-way, including but not limited to, the following:
(1) Time. Standard hours of construction activities are weekdays between the hours of 8:00 a.m. and 6:00 p.m. Hours of construction may be restricted to greater than or less than the standard hours of construction, as determined by the Director of Public Works.
(2) Materials. Above-ground facilities may be limited to a graffiti-resistant finish material that is easy to clean and is of a neutral color, as determined by the Director of Public Works. Permittees may be required to clean graffiti at their own cost and provide a hotline for the City residents to report graffiti.
(3) Identification Markers. Debris boxes/storage containers may be required to have reflectors so that they can be seen at night. Identification markers may be limited by color and size, for example the Director of Public Works may prohibit orange decals and may limit decals to one inch (1") or less in size.
(4) Landscaping and Location. Permittee may be required to install landscaping to screen any above-ground facilities and to work with the City or adjacent property owners to resolve any concerns about placement and appearance of above-ground facilities. Permittee will be required to maintain landscaping in neat and orderly condition at all times.
(b) Any person engaged in the construction, operation, maintenance or repair of facilities in the public rights-of-way shall exercise reasonable care in the performance of all of its activities and shall use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public or to property.
(c) A person with facilities in the public right-of-way shall, by a time specified by the Director of Public Works, temporarily disconnect, relocate, or remove when required by the City in exercise of its governmental or proprietary powers by reason of traffic conditions, public safety, public rights-of-way construction and repair, or any other purpose where the work involved would be aided by the removal and relocation of the facilities in the public right-of-way. Collectively, such matters are referred to below as the "public project."
(1) The Director of Public Works, as applicable, shall provide written notice describing where the public project is to be performed at least one (1) week prior to the deadline by which a person must protect, support, or temporarily disconnect, remove or relocate its facilities in the public right-of-way.
(2) In an emergency, or where a person’s facility in the right-of-way creates or contributes to an imminent danger to health, safety, or property, the City may protect, support, or temporarily disconnect, remove or relocate any and all parts of the person’s facility without prior notice and that person shall be responsible to pay the City for the costs incurred. (Ord. 957 § 2 (part), 2007).
13.18.120 Street opening, sidewalk, curb and gutter, and driveway permits.
The Construction Supervisor shall be notified at least twenty-four (24) hours prior to beginning excavation work and twenty-four (24) hours prior to each inspection. The number and type of inspections required, and any tests that may be required will be as directed by the Construction Supervisor. (Ord. 957 § 2 (part), 2007).
13.18.130 Insurance.
Permittee may be required to file with the City a certificate of insurance showing that the permittee has one million dollars ($1,000,000) in general liability insurance and any other certificates of insurance required by the Director of Public Works as a condition of approval. (Ord. 957 § 2 (part), 2007).
13.18.140 Deposit or bond.
The Director of Public Works may require that the application for an encroachment permit be accompanied by a faithful performance bond or a cash deposit in an amount equal to the estimated cost of the proposed work. (Ord. 957 § 2 (part), 2007).
13.18.150 Removal and relocation.
Permittee shall remove or relocate, without cost or expense to the City, any facility when made necessary by any lawful change ingrade, alignment, or width of any street, including, the construction, maintenance, or operation of any other City underground or above-ground facilities. Said removal or relocation shall be completed within ninety (90) days of notification by the City; provided that if removal or relocation cannot reasonably be accomplished within ninety (90) days, then permittee shall commence such removal or relocation within such ninety (90) days and thereafter continue the same diligently until completion thereof. If permittee intends to abandon a facility located above ground in the public right-of-way, permittee must provide written notice of its intention to abandon and must remove the facility within ninety (90) days thereafter. (Ord. 957 § 2 (part), 2007).
13.18.160 Enforcement.
The City may either require removal of the unpermitted encroachment or may require the person to obtain an encroachment permit, subject appropriate conditions, and pay all applicable permit fees. In addition, the City may either charge a civil or administrative penalty equal to the amount of the permit fees payable to the City or treat it as a misdemeanor pursuant to Section 1.12.010 of the code. (Ord. 957 § 2 (part), 2007).
13.18.170 Severability.
If any section of this chapter, or part hereof, is held by a court of competent jurisdiction in a final judicial action to be void, voidable, or enforceable, such section, or part hereof, shall be deemed severable from the remaining sections of this chapter and shall in no way affect the validity of the remaining sections hereof. (Ord. 957 § 3, 2007).