Chapter 13.20 PUBLIC RIGHTS-OF-WAY

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, and to minimize the inconvenience to and negative effects on the public from nontraditional uses of the public rights-of-way.

B. Under the City Charter and applicable state and federal law, the City is empowered to control access to and use of its public rights-of-way, and unless specifically pre-empted 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. (Ord. 2004-9 § 1 (part), 2004)

13.20.020 Definitions.

For purposes of carrying out the intent of this chapter, the following words, phrases, and terms shall have the meanings set forth below unless a different meaning is clearly intended by the use and context of the word, phrase, or term.

Words, terms or phrases not defined in this section shall have the meaning defined in Section 1.08.120 or, if applicable, the meaning or connotation used in any industry, business, trade, or profession where they commonly carry special meanings.

“Above ground facility” or “AGF” means all structures, poles, pedestals, cabinets, electric meters and any other facility installed above surrounding grade in the PROW, excluding antennas.

“Cable operator” or “cable service” or “cable system” or “cable television system” shall have the same meaning in this chapter as in Chapter 5.44. “California Public Utilities Commission” or “CPUC” means the California Public Utilities Commission.

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

“Company” means any person or authorized agent of any person who is seeking to obtain or has obtained a franchise, agreement, permit, or license to install, operate, maintain, or reconstruct facilities used to provide service(s), regardless of whether company is deemed a public utility by the California Public Utilities Commission, or a special district, formed and operating under the laws of the State of California, and company’s lawful successors, transferees, or assignees.

“Construction Plan” means a plan that describes in detail the designs, locations, and an estimated time schedule for the facilities.

“Department” means the Department of Public Works.

“Director” means the Director of the City’s Department of Public Works.

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

“Facility” or “facilities” means any cable or other wire or line, pipeline, pipes, duct, conduit, converter, cabinet, pedestal, meter, tunnel, vault, equipment, drain, manhole, splice box, surface location marker, pole, structure, utility, or other appurtenance, structure, property, or tangible thing owned, leased, operated, or licensed by company to provide services, excluding antennas, that are located or are proposed to be located on the PROW.

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

“Franchise” means a written contract or agreement executed between company and the City.

“Public property” means all real property and improvements owned, operated or controlled by 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 improved or unimproved surface of and the space above and below a City easement for public utility purposes, or street, or similar public way of any nature, dedicated or improved for vehicular, bicycle, and/or pedestrian related use now or hereafter held by City, however acquired.

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

“Public utility provider” means a company that is regulated by and received a Certificate of Public Convenience and Necessity (CPCN) from the CPUC, to provide a CPUC-regulated service.

“Service(s)” shall include, but not be 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.

“Subscriber” means a person lawfully receiving or using service.

“System” means a consolidated, connected, or networked group of facilities that deliver or provide a service.

“Traffic Control Plan” means a plan describing the manner in which company will manage vehicle, bicycle, and pedestrian traffic along affected streets when installing or maintaining facilities. (Ord. 2023-22 § 616, 2023; Ord. 2004-9 § 1 (part), 2004)

13.20.030 City Policies Regarding Use of the PROW.

A. Promotion of Undergrounding. It is the policy of City to promote undergrounding of facilities whenever and wherever feasible. Whenever existing facilities are located underground along a particular PROW, new facilities must be installed, at company’s sole expense, underground along that PROW. Further, whenever any above ground facilities are located or relocated underground by a public utility provider along a particular PROW, other Companies shall concurrently relocate company’s facilities underground on a cost-sharing basis for all companies involved in a manner consistent with applicable law. No new above ground facilities will be allowed in areas where facilities are undergrounded.

B. Limits on Above-Ground Facilities (AGF). It is the additional policy of the City to limit the number and control the location of AGF used in conjunction with underground facilities consistent with the technical requirements for providing high quality utility service. Companies shall place all newly installed facilities underground or flush mounted vaults, whenever feasible. Companies shall coordinate with all affected property owners to locate all newly installed AGF 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. 2004-9 § 1 (part), 2004)

13.20.040 PROW 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, company shall obtain a PROW permit prior to performing any work in the PROW and shall pay all fees required by this chapter. (Ord. 2023-22 § 617, 2023; Ord. 2004-9 § 1 (part), 2004)

13.20.050 Exemption.

To the extent company, or the activities of company, are by virtue of applicable Federal law or State law or franchise specifically exempted from the provisions of Section 13.20.130, the provisions of Section 13.20.130 shall not apply. (Ord. 2004-9 § 1 (part), 2004)

13.20.060 PROW Permit Application.

An application for a PROW Permit, along with payment of any fees or deposit required by this chapter, shall be filed with the Director, in the form and manner required by the Director and shall contain, at a minimum, all of the following:

A. The Identity of Company. If the application is made by an authorized agent of company, written authorization shall be provided.

B. Engineering plans, specifications and a network map of the facilities to be located within the PROW, including a map in electronic and/or other form required by the City. The plans and specifications shall show:

1. The location of all existing and proposed facilities in the PROW along proposed route including the type and location of existing and proposed pedestals and other above ground facilities, along with, if required by the Director, photographs or artists renderings, of all above-ground 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 above-ground installation including the electronic components, natural gas generator, electrical fans, and the anticipated noise levels during winter and summer months and the emergency backup operations and the proposed maintenance schedule for the facilities. For all facilities, proof shall be made to the satisfaction of the Director that the public notice requirements of this chapter have been fulfilled or the manner in which they will be fulfilled.

2. The specific trees, structures, improvements, facilities and obstructions, if any that company proposes to temporarily or permanently remove or relocate.

3. Reference to or documentation of company’s CPCN or other legally established right to use the PROW for the services to be provided.

C. Excess Capacity. If company is proposing an underground installation within 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 company’s facilities, to the City or a subsequent permit applicant.

D. A Construction Plan. The information required by Section 13.20.080, 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. In accordance with such guidelines established by the City.

F. A Public Notification Plan. Companies may be required by the Director 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 above ground facilities pursuant to guidelines promulgated by the Director. The plan is subject to the prior approval of the Director. The guidelines shall take into account the area covered and impacts of the AGFs.

G. Certifications. Upon request, company shall provide copies of certifications, licenses, permits, franchises or other applicable approvals to construct and operate the facilities and to offer or provide the services. Company shall also provide a certification that the company will comply with all applicable local state and federal requirements in the installation, operation, maintenance, or removal of its facilities.

H. Contact with other Companies. Company shall first seek to use technically compatible excess capacity of other companies by contacting the Companies specified by the Director in writing. If use of excess capacity is not technically compatible, company shall provide an explanation to Director as to why any excess capacity cannot be used. It shall also provide reasonable advance notice to other Companies specified by the Director in writing and provide them an opportunity to jointly install facilities in the property which is proposed to be the host of company’s facilities.

I. Other. Other information relating directly to PROW management and use as may reasonably be required by the Director. (Ord. 2004-9 § 1 (part), 2004)

13.20.070 Issuance of a PROW Permit.

A. Each PROW permit shall be subject to the criteria and provisions of this chapter. The PROW permit shall be promptly issued upon review of a completed application and a determination by the Director that company has complied or will comply with all applicable requirements of this chapter.

B. Criteria. The determination to grant or deny a PROW permit shall be based upon the criteria set forth in this section. The Director shall consider the following:

1. The capacity of the PROW to accommodate company’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 above ground facilities by virtue of their design, color, dimensions, locations and quantity.

6. Compliance with the requirements of this chapter, this 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 company 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 Director’s consideration of the factors set forth above, including by limiting or changing the number, size, color and location of the above ground 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, company shall pay and submit all applicable cost-based fees authorized by this chapter and assessed by resolution of the City Council.

E. Right to Inspect. Upon the provision of reasonable notice by the City, company shall allow the City the unrestricted right to inspect company’s work at any time the City deems appropriate.

F. Duration and Validity. Permits shall be void if the work has not begun within ninety (90) days of the start date specified in the permit, if the excavation is not prosecuted diligently to its conclusion, or if the excavation, including restoration, has not been completed within the specified duration; provided, however, that the Director may, upon good cause, issue extensions to the start date, the duration of excavation, or both upon request from company.

G. Permit Available On Site. The permit or a photo duplicate shall be available for review at the site of the excavation for the duration of the excavation and shall be shown, upon request, to any police officer or any employee of a City agency, board, commission, or department with jurisdictional responsibility over activities in the PROW. (Ord. 2023-22 § 618, 2023; Ord. 2004-9 § 1 (part), 2004)

13.20.080 Construction Plan.

A. Submittal Requirements. Not less than thirty (30) days prior to proposed commencement of any work in the PROW, company shall submit to the Director for his or her review a Construction Plan containing the following information:

1. Date for Work Completion. Company shall identify a completion date for the work and shall complete the system construction authorized by the PROW Permit no later than the date specified in the permit. If company requires additional time to complete work, it shall so notify Director and Director may grant a work completion extension.

2. Facility Information. The Construction Plan shall include photographs or artist renderings of all proposed facilities for the work area as well as their locations, dimensions, and color. Any modifications to Construction Plans must be reviewed and approved by Director before modifications can be implemented by company. In addition, company shall provide the Director with engineering base maps identifying company’s existing underground and aerial utility facilities, poles, trench routes, and locations for above-ground equipment in the work area within the Construction Plan in both electronic form (digital or otherwise as specified by Director) to the extent available and hard-copy form.

3. Hours of Construction. All construction shall be accomplished and maintained between the hours specified by the Director. Construction shall not interfere with the existing or known future services of the City or private or public third parties.

4. Traffic Control Plan. At the request of Director, company shall furnish a detailed Traffic Control Plan to the Director prior to the commencement of any construction activities which may interfere with traffic in arterial streets a Traffic Control Plan.

5. Telephone Contact. Company shall provide the Director with a telephone contact number, answered twenty-four (24) hours a day during the construction period, to enable the Director to report any concerns regarding construction of the facilities. After business hours such calls will be routed to an on-call supervisor. In the event that the Director reports any concerns to company, company shall respond in a timely manner. Company shall immediately correct any adverse impact to the City’s use or operations or the use or operations of a third party caused by company construction activities in the PROW at no cost to the City. Safety violations will be cause for immediate project shut-down.

B. Emergency Excavation. Nothing contained in this section shall be construed to prevent company from taking any action necessary for the preservation of life or property or for the restoration of interrupted service provided by company when such necessity, arises during days or times when the Department is closed. In the event that company takes any action to excavate or cause to be excavated the PROW pursuant to this section, company shall apply for an emergency permit within twenty-four (24) hours after the Department’s offices first opened. The applicant for an emergency permit shall submit a written statement the basis of the emergency action and describe the excavation performed and work remaining to be performed.

C. Blanket Permits. The Director may issue blanket permits to company to make excavations for utility service connections, for the location of trouble in utility conduits or pipes and for making repairs thereto, or for emergency purposes. Blanket permits shall be issued on a yearly basis only, and shall authorize only excavations referred to in this section. Except as specifically provided otherwise in this chapter, excavations authorized by this section shall be subject to all fees and requirements of this chapter.

D. Construction Status Report. During construction, company shall, at the request of the Director, submit to the Director regular progress reports describing in detail the status of construction in relation to the Construction Plan. The first report shall be submitted within seven days after commencement of construction and shall be updated days thereafter, as may be required by the permit. Work plans shall be provided in advance to the Director for review and approval.

E. Notification. Company shall provide written notification to the Director of any construction and/or maintenance activities undertaken in PROW, whether undertaken pursuant to permit or otherwise, within five business days of commencement of such activities unless the activities have been previously reported to the Director.

F. Approvals of Construction Plan. No permits shall be issued until the Construction Plan is reviewed pursuant to all relevant public health, safety, and welfare criteria and approved by the Director. (Ord. 2004-9 § 1 (part), 2004)

13.20.090 Conditions of Use of PROW.

A. All facilities of company 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 pursuant to a routing plan to be approved by the Director.

B. In the event company creates a hazardous or unsafe condition or an unreasonable interference with property, such company shall remove or modify that part of the facility to eliminate such condition from the subject property.

C. Company shall not place equipment where it will interfere with existing and known future City uses of the PROW, with the rights of private property owners as determined by the Director, with gas, electric, sewer or telephone fixtures, with water hydrants and mains, with sewers, storm drains or v-ditches, or any wastewater stations, with any traffic control system, or any other City facility.

D. Company, at its own expense and pursuant to a timeline approved by the Director, shall protect the PROW and support or temporarily disconnect or relocate any of company’s facilities when necessitated by reason of:

1. Traffic conditions;

2. Public safety;

3. Temporary or permanent street closing not for the benefit of a private party;

4. Street construction or resurfacing;

5. A change or establishment of street grade; and

6. 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 right-of-way.

E. It shall be the responsibility of company 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, of independent contractors of any entity perform work in the marked-off area. Company shall participate in and adhere to the practices of Underground Services Alert (“USA”) or its successor notification system and provide at least forty-eight (48) hours prior notice to USA prior to any excavation. (Ord. 2004-9 § 1 (part), 2004)

13.20.100 Excavations.

A. Applicability. Each excavation in the PROW pursuant to this chapter shall be performed in accordance with this chapter and with the standard plans and specifications of the Department and any Department orders or regulations, except where the Director, at his or her discretion, grants prior written approval to deviate from the standard plans and specifications, orders, or regulations. The Director shall develop guidelines to implement the granting of waivers authorized pursuant to this chapter.

B. Notices. The Director may require reasonable notice from company if company excavates or causes an excavation in the PROW in a manner that, due to duration or location of the excavation, has the potential to disrupt traffic flow or adjacent properties, as follows:

1. Post and maintain notice at the site of the excavation. The notice shall include the name, telephone number, and address of company, a description of the excavation to be performed and the duration of the excavation. The notice shall be posted along any street where the excavation is to take place at least seventy-two (72) hours prior to commencement of the excavation.

2. At least ten (10) days prior to commencement of the excavation, company shall provide written notice delivered by United States mail to each property owner on the street affected by the excavation and each affected neighborhood and merchant organization that is listed in the latest Assessor’s Roll for names and addresses of property owners shall be used for the mailed notice. This notice shall include the same information that is required for the posted notice pursuant to subsection (B)(1) of this section and the name, address and twenty-four (24) hour telephone number of a person who will be available to provide information to and receive complaints from any member of the public concerning the excavation; or

3. At least ten (10) days prior to commencement of the excavation, company also shall deliver a written notice to each dwelling unit on the block(s) affected by the excavation. This written notice shall include the same information that is required for the written notice pursuant to subsection (B)(2) of this section.

C. Notice for Emergency Excavation. For emergency excavation, company shall post and maintain notice at the site of the excavation during the construction period. The notice shall include the name, telephone number, and address of company, a description of the excavation to be performed, and the duration of the excavation. The notice shall be posted along any street where the excavation is to take place.

D. Marking of Subsurface Facilities. If company excavates in the PROW, it shall comply with the requirements of the underground service location regarding notification of excavation and marking of subsurface facilities. Company shall provide underground service location with the assigned number of the permit to excavate or other information as may be necessary to properly identify the proposed excavation.

E. Limits on Excavation in the Public Right-of-Way.

1. Scope. It is unlawful for company to make, cause, or permit to be made, any excavation in the PROW outside the boundaries, times, and description set forth in the permit.

2. Rock Wheel and Trenchless Technology. Use of a rock wheel or other trenchless technology to excavate in the PROW is unlawful without prior written approval of the Director.

3. Single excavation maximum of one thousand two hundred (1,200) feet. No single excavation site shall be longer than one thousand two hundred (1,200) feet in length at any time except with the prior written approval of the Director.

4. Moratorium Streets. The Department may not issue any permit to excavate in any street that has been reconstructed or resurfaced by the Department or any other owner or person in the preceding five-year period. However, the Director may, in his or her discretion, grant a waiver of this subsection for good cause. Good cause shall include the fact that the need to excavate arose in spite of company’s full compliance with the coordination of excavation provisions in Section 13.20.120. The Director is authorized to grant a waiver for an excavation that facilitates the deployment of new technology or new service as directed pursuant to official City policy. The Director shall issue his decision on a waiver within a reasonable period after receipt of a written request for a waiver. The Director may place additional conditions on a permit subject to a waiver. The Director’s decision regarding a waiver shall be final subject to review in accordance with Section 13.20.270.

F. Excavation Sites. Company shall be subject to requirements for excavation sites that are set forth in Department orders or regulations, these orders or regulations shall include, but not be limited to, the following measures:

1. Protection of the Excavation. Company shall cover open excavation with non-skid steel plates ramped to the elevation of the contiguous street, pavement, or other PROW, or otherwise protected in accordance with guidelines prescribed by the Department.

2. Housekeeping and removal of excavated material. Company shall keep the area surrounding the excavation clean and free of loose dirt or other debris in a manner deemed satisfactory to the City. Excavation sites shall be cleaned at the completion of each workday. In addition, company shall remove all excavated material from the site of the excavation no later than the end of each workday.

3. Storage of Materials. Materials and equipment used for the excavation within seven days may be stored at the site of the excavation, except that fill material, sand, aggregate, and asphalt-coated material may be stored at the site only if it is stored in covered, locked containers.

4. Hazardous Material. Company shall be subject to hazardous material guidelines for data collection; disposal, handling, release, and treatment of hazardous material; site remediation; and worker safety and training. The guidelines shall require company to comply with all federal, state, and local laws regarding hazardous material purposes of this subsection. Hazardous material means any gas, material, substance, or waste which, because of its quantity, concentration, or physical or chemical characteristics, is deemed by any federal, state, or local authority to pose a present or potential hazard to human health or safety or to the environment.

5. Water Quality Management Plans or Stormwater Pollution Prevention Plans. The Director may require the development and implementation of a WQMP or SWPPP for any excavation project.

G. Stop Work Orders, Permit Notification, Permit Revocation. If the Director has determined that company has violated this chapter or that an excavation poses a hazardous situation or constitutes a public nuisance, public emergency, or other threat to public health, safety, or welfare, or when the Director determines that there is a paramount public purpose, the Director is authorized to issue a stop work order, to impose new conditions upon a permit, or to suspend or revoke a permit by notifying company of such action in a written, electronic, or facsimile communication.

H. Restoration of the PROW.

1. Restoration. In any case in which the sidewalk, street, or other PROW is or is caused to be excavated, company shall restore or cause to be restored such excavation in the manner prescribed by the orders, regulations, and standard plans and specifications of the Director. At a minimum, trench restoration shall include resurfacing to a constant width equal to the widest part of the excavation.

2. Backfill, Replacement of Pavement Base and Finished Pavement. Activities concerning backfilling, replacement of pavement base, and finished pavement shall be performed in a manner specified by the orders, regulations, and standard plans and specifications of the Director. In addition, these activities shall subject to the following requirements:

a. Backfill. Each excavation shall be backfilled and compacted within seventy-two (72) hours from the time the construction related to the excavation is completed.

b. Replacement of Pavement Base. Replacement of the pavement base shall be completed within seventy-two (72) hours from the time the excavation is backfilled.

c. Finished Pavement. Finished pavement restoration shall be completed within ten days or sooner as directed by the Director.

3. Modification to Requirements. Upon written request from company, the Director may grant written approval for modifications to the requirements of this section.

4. Incomplete Excavation—Completion by the City. In any case where an excavation is not completed or restored in the time and manner specified in the permit, this chapter, or the orders, regulations, and standard plans and specifications of the Department, the Director shall order company to complete the excavation as directed within twenty-four (24) hours. If company should fail, neglect, or refuse to comply with the order, the Director may complete or cause to be completed such excavation in such manner as the Director deems expedient and appropriate. The company 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 or other agencies, boards, commissions, departments of the City that were made necessary by such excavation. The cost of such work also may be deducted from company’s security fund pursuant to Section 13.20.130. The Director’s determination as to the cost of any work done or repairs made shall be subject to review in accordance with Section 13.20.270.

5. Subject to the limitation set forth in this chapter, completion of an excavation or restoration by the Department in accordance with this chapter shall not relieve the owner or company from liability for future pavement failures at the excavation site. (Ord. 2023-22 § 619, 2023; Ord. 2004-9 § 1 (part), 2004)

13.20.110 Post-Excavation Repair and Maintenance.

A. Repair and Maintenance Obligation of Company. Each company that excavates or causes to be made an excavation in the PROW shall be responsible to maintain, repair, or reconstruct the site of the excavation so as to maintain a condition acceptable to the Director until such time as the site of the excavation is repaved or resurfaced by the Department, or pursuant to a subsequently issued PROW 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 Director shall exercise his or her best judgment to determine the person(s) responsible, if any, for the failure in the subsurface or surface of the PROW and shall designate such person as the responsible party. The Director shall notify such person(s) of the condition, its location, and the required remedy, and such person(s) shall repair or restore, or cause to be repaired or restored, such condition to the satisfaction of the Director within seventy-two (72) hours of the notification, unless, in the interest of public safety, the Director extends the time for the responsible party to repair or restore the affected PROW.

C. Repair by the City.

1. In the event that any person(s) fails, neglects, or refuses to repair or restore any condition pursuant to the Director’s notice, the Director may repair or restore, or cause to be repaired or restored, such condition in such manner as the Director deems expedient and appropriate. The person(s) identified by the Director as the responsible party shall compensate the Department 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 reason of the repair or restoration undertaken by the Department. The cost of such work also may be deducted from company’s security fund. The Director’s determination as to the cost of the repair or restoration performed shall be subject to review in accordance with Section 13.20.270.

2. 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.

1. If, in the judgment of the Director, the site of an excavation is considered hazardous or if it constitutes a public nuisance, public emergency, or other imminent threat to the public health, safety, or welfare that requires immediate action, the Director may order the condition remedied by a written, electronic, or facsimile communication to the person(s) responsible, if any, for remedying the condition and shall designate such person as the responsible party.

2. If the responsible party is inaccessible or fails, neglects, or refuses to take immediate action to remedy the condition as specified in the communication, the Director may remedy the condition or cause the condition to be remedied in such manner as the Director deems expedient and appropriate. The person(s) identified by the Director as the responsible party shall compensate the Department for any reasonable costs associated with the administration, construction, consultants, equipment, inspection, notification, remediation, repair, restoration, or any other actual costs incurred by the Department or other agencies, boards, commissions, departments of the City that were made necessary by reason of the emergency remediation undertaken by the Department. The cost of such work also may be deducted from company’s security fund pursuant to Section 13.20.130. The Director’s determination as to the cost of any remediation performed shall be subject to review in accordance with Section 13.20.270. (Ord. 2023-22 § 620, 2023; Ord. 2004-9 § 1 (part), 2004)

13.20.120 Coordination of Excavation.

A. Advanced Planning.

1. On the first day of April and October, or the first regular business day immediately thereafter, each company that requests a permit under this chapter, shall prepare and submit to the Department a plan, in a format specified by the Department that shows all major work anticipated to be done in the PROW in the next two years (“Two-Year Plan”). Any company that does not prepare a Two Year Plan shall submit a statement that no such major work is anticipated and shall immediately report any major work to the Department as soon as it becomes reasonably foreseeable.

2. Unless State law provides otherwise, the Department may disclose information contained in a Two-Year Plan to any company only on a need-to-know basis in order to facilitate coordination among excavators and to avoid unnecessary excavation in City streets. To the maximum extent permissible under federal, state, and local laws applicable to public records, the City shall not otherwise disclose to the public any information contained in a two-year plan submitted by company except to the extent necessary to coordinate with other permit applicants or projects, or to the extent the information is proprietary, trade secret or is otherwise protected from disclosure; provided, however, the City shall have no duty to decline to disclose any information that company has not identified on its face as proprietary, trade secret or otherwise protected from disclosure. The Department shall notify company of request for inspection of public records that calls for disclosure of any Two-Year Plan on which any information has been identified as proprietary, trade secret or protected from disclosure. The Department shall consult with the City Attorney regarding any such request and shall inform company either that the Department will refuse to disclose the protected information or, if there is no proper basis for such refusal, that the Department intends to disclose the requested information unless ordered otherwise by a court. The City shall be under no obligation to initiate or defend any litigation relating to this provision.

B. City’s Pavement Management Plan (“PMP”).

1. The Department shall prepare a two-year Pavement Management Plan (“PMP”) showing all proposed resurfacing and reconstruction in the PROW. The PMP may be revised from time to time after receipt of the two-year plans from companies. In order to facilitate coordination and minimize the cost of excavation, the Department shall make its PMP available for public inspection.

2. Except when waived by the Director, at least one hundred eighty (180) days prior to undertaking the resurfacing and reconstruction of any street, the Department shall send a notice of the proposed repaving and reconstruction to each company.

C. Coordination. The Department shall review the Two-Year Plans and identify conflicts and opportunities for coordination of excavations. The Department shall notify affected owners and company of such conflicts and opportunities to the extent necessary to maximize coordination of excavation. Each applicant shall coordinate, to the extent practicable, with each potentially affected owner and company to minimize disruption in the PROW. (Ord. 2023-22 § 621, 2023; Ord. 2004-9 § 1 (part), 2004)

13.20.130 Financial Security and Fees.

A. Security Fund.

1. Prior to the effective date of any PROW Permit, the Director may require company to deposit into a bank account established by the City, and to maintain on deposit through the term of any PROW Permit, or blanket permit, a sum specified as security (“security fund”) for the faithful performance by company of all of the provisions of any PROW Permit, compliance with this chapter, with all orders, permits and directions of the City, or any designated representative of the City having jurisdiction over company’s acts or defaults under any PROW Permit of this chapter, as security for the payment to the City of any claims, fees, liens, maintenance obligations relating to above ground facilities, or taxes due the City which arise by reason of the construction, operation or maintenance of the facilities pursuant to any PROW Permit, or this chapter, and to satisfy any actual damages arising out of a breach. The provisions of this subsection shall be satisfied if similar security is provided in compliance with a City franchise or other written agreement.

2. Except as otherwise provided in any PROW permit, if company fails, after forty-five (45) days written notice, to pay to the City any fees that are due and unpaid, or fails to repay within such forty-five (45) days, any damages, costs or expenses which the City is compelled to pay by reason of any act or default of company in connection with its PROW Permit; or if company fails to comply with any provision of any PROW Permit or this chapter and the City determines that the failure was without just cause and, in a manner consistent with the procedures specified in this chapter, Director reasonably determines it can be remedied by a withdrawal from the security fund or is nevertheless subject to liquidated damages, then, in any such event, the Director may immediately withdraw the amount thereof from the security fund, with interest and any liquidated damages. Upon such withdrawal, the Director shall notify company of the amount and the date of withdrawal.

3. Within thirty (30) days after notice to company that any amount has been withdrawn by City from the security fund, company shall deposit a sum of money sufficient to restore the security fund to the original amount.

4. The rights reserved to the City with respect to the security fund 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. Faithful Performance Bond and Labor and Materials Bond. As an alternative to subsection A above, prior to issuance of any PROW Permit, Director may require company to furnish proof of the posting of a Faithful Performance Bond and/or Labor and Materials Bond in favor of the City, with corporate surety approved by the Director in the sum specified in any PROW Permit, and conditioned that company shall well and truly observe, fulfill, and perform each term and condition of any PROW Permit; provided, however, that such bond(s) shall not be required after certification by Director of the completion of construction. The corporate surety must be authorized to issue such bonds in the State of California, and the bond must be obtained and secured through an agent approved by the Director. During the course of construction, the amount of the bond(s) may from time to time be reduced, as provided in any PROW Permit. Written evidence of payment of premiums shall be filed with the Director.

C. Permit Fee. Each company 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 a PROW Permit or for Blanket PROW Permits under the provisions of this chapter.

D. Inspection Fee. To verify that company has constructed the facilities in the manner required by this chapter, the City is authorized to inspect the construction or maintenance at any time as well as to inspect all necessary documents related to said construction and maintenance of facilities in the PROW. The City may collect and apply an inspection fee in amounts authorized by resolution of the City Council for this purpose.

E. Technical Consultant Fee. City may require reimbursement of actual costs for outside technical consultants to advise City when questions of technical feasibly or compatibility cannot be determined by City employees.

F. Collection, Return, and Refund of Security Funds and Fees.

1. Refunds. When an application is either withdrawn by company or denied by the Department before the start of construction, company’s permit fee assessed under subsection C of this section shall be retained and inspection fees assessed under subsection D of this section shall be returned to the applicant without interest.

2. Retention of Security Fund. Moneys in the security fund may be retained by the City for a period of three years after the satisfactory completion of the excavation to secure the obligations in the permit and this chapter.

3. Return of Security Fund. Upon expiration of three years from the satisfactory completion of the excavation as determined by the Director, company’s security fund, less the deductions made, shall be returned to company or to its assigns. (Ord. 2004-9 § 1 (part), 2004)

13.20.140 Duty to Remove Facilities from PROW and Public Property.

A. In addition to the circumstances provided for in Section 13.20.090(D), the Director may order company to remove its facilities from public property or PROW at its own expense whenever the following occurs:

1. A company ceases to operate all, or part of the facility for a continuous period of twelve (12) months;

2. A company ceases and fails to complete construction of the facility outlined in the PROW Permit within the term or duration of the PROW Permit; or

3. The company’s PROW Permit is revoked.

B. If not removed voluntarily by company, then the Director may notify company that should removal of the property not be accomplished within a reasonable time specified by the Director, the Director may order the removal of the facilities at that company’s expense. The security fund identified in Section 13.20.130 shall be available to pay for such work.

C. If officials or representatives of the City remove facilities, and if company does not claim the property within thirty (30) days of its removal, then the City may take whatever steps are available under State law to declare the property surplus, and sell it, with the proceeds of such sale going to the City.

D. When such company removes its facilities from the PROW, company shall, at its own expense, and in a manner approved by the Director, replace and restore such PROW to a condition comparable to that which existed before the work causing the disturbance was done.

E. Company shall maintain the deactivated facilities at no cost to the City until removed by company. The company shall provide a written list to the Director of all deactivated facilities located within the City at annual intervals. The company shall remove or disable non-useful facilities in accordance with a removal plan approved by the Director. The company shall provide the Director with a list of the specific facilities to be removed and their locations. The company shall remove all these facilities within ninety (90) days after deactivation unless another period is specified by the Director.

F. Director may, upon written application by company, approve the abandonment of any property in place by company under such terms and conditions as the Director may approve. Upon Director-approved abandonment of any property in place, company shall cause to be executed, acknowledged, and delivered to City such instruments as Director shall prescribe and approve transferring and conveying the ownership of such property to City. (Ord. 2004-9 § 1 (part), 2004)

13.20.150 Construction and Maintenance.

A. Methods of construction, installation, maintenance and repair of any facilities shall comply with the most current editions of the Zoning Codes, Building Codes, Excavation Codes, Construction Codes, Plumbing Codes, National Electrical Safety Code, the National Electric Code, the codes, the City-adopted Public Works Construction Standards, specifications and Plans, 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 any structure.

C. Company shall place all above-ground 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 Director in writing and shall be in conformity with this Code and all applicable City ordinances, regulations, rules, and guidelines.

D. 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. Nothing in this subsection shall require company to treat or paint an AGF with a material that invalidates the AGF’s warranty. Applications for AGF’s must include a Graffiti Mitigation Plan detailing how company will maintain the AGFs free from graffiti and other defacements (i.e. stickers, posters, decals, and other markings). The Graffiti Mitigation Plan shall commit to the AGFs’ inspection at least two times a year and shall include identification of the resources dedicated to mitigating graffiti. Additionally, the Graffiti Mitigation Plan shall provide the name, mailing address, phone number, and e-mail address of a single point of contact responsible to resolve graffiti issues should they occur. The Graffiti Mitigation Plan shall clearly state that graffiti shall be removed within forty-eight (48) hours of the time at which company is notified of graffiti and that the AGFs’ surfaces shall be restored to their original exterior appearance.

E. Each visible Facility installed in the PROW shall be clearly identified with the name of the owner of the facility and a toll-free telephone number for company. The Department shall adopt orders or regulations to specify other appropriate methods for identification.

F. During construction and maintenance, company 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.

G. Company assumes all responsibility for damage or injury resulting from the maintenance of any aboveground component. If company fails to comply with any written Director’s demand relating thereto, the City may perform said work and withdraw its costs and expenses from the security fund or other security provided by company.

H. Deviation Procedure for Nonconforming Situations.

1. In instances where company cannot conform to any of the regulations of this chapter, company may apply for a deviation.

2. A request for a deviation shall be submitted and approved by the Director prior to the submittal of any permit for installation of any facilities.

3. The deviation will be reviewed and a determination made by the Director.

4. A deviation request shall be submitted by letter form to the Director and contain the following:

a. An exhibit showing the proposed location and type of facilities to be installed.

b. The names and telephone numbers of any property owner, tenant or home owners association that may be affected by the deviation request.

c. Documentation that any property owner, tenant, or home owners association that may be affected by the deviation request has been contacted and informed about the deviation request.

d. A detailed explanation and justification for the proposed deviation request and references to the appropriate section(s) of this chapter which relief is being requested.

5. A deviation shall be reviewed and a determination made based on whether all of the following findings can be made:

a. That the proposed request is in the best interest of the general welfare;

b. That the proposed request cannot conform to the regulations of this chapter due to extenuating circumstances beyond the control of company, such as but not limited to: (1) existing location of utilities from another utility provider; or (2) existing conditions which prohibit installation (e.g., walls/fences or existing structures); and

c. That the proposed request does not cause the accumulation of facilities in close proximity or otherwise detrimentally impact the PROW. (Ord. 2023-22 § 622, 2023; Ord. 2004-9 § 1 (part), 2004)

13.20.160 Construction Default.

A. Upon the failure, refusal or neglect of company to cause any construction, repair, or to comply with the terms of any permit thereby creating an adverse impact upon public safety or convenience, Director may (but shall not be required to) cause such work to be completed in whole or in part, and upon so doing shall submit to company an itemized statement of costs. The company shall be given reasonable advance notice of Director’s intent to exercise this power, and a reasonable opportunity to cure the default. The company shall, within forty-five (45) days of billing, pay to City the actual costs incurred. The City may deduct amounts not so timely paid from the security fund, performance bonds or any deposit.

B. Whenever construction is being performed in a manner contrary to the provisions of this chapter, the Director may order the work stopped by notice served on any person or company engaged in or causing the construction. Any work stopped shall not resume until authorized in writing by the Director. (Ord. 2004-9 § 1 (part), 2004)

13.20.170 City Vacation or Abandonment.

In the event any PROW or portion thereof used by company shall be vacated by the City for a governmental purpose, upon reasonable notice company shall forthwith remove its facilities from the PROW unless specifically permitted to continue. As a part of the removal, company shall restore, repair or reconstruct the area where the removal has occurred, to a condition as may be required by the Director, but not in excess of the original condition. In the event of any failure, neglect or refusal of company, after thirty (30) days notice by the Director, to do such work, Director may cause it to be done, and company shall, within forty-five (45) days of billing, pay to City the actual costs incurred.

13.20.180 Facilities Agreements.

No PROW Permit shall relieve company of any obligations involved in obtaining pole or conduit space from any department of City, any utility company, or from others maintaining utilities in City’s PROW. (Ord. 2004-9 § 1 (part), 2004)

13.20.190 System Location Data.

To the extent available, company shall provide the Director with data in a digital or other format specified by the Director which details and documents all the geographic locations of facilities located in PROW within the project site. The computer disk or other record shall be updated whenever there have been significant changes in the location of the facilities or at the Director’s discretion. Prior to disclosing this information to any party, the City shall notify company and shall endeavor not to disclose system location data to the extent the system location data is exempt under federal or state law or regulation for national security reasons. In addition, company shall maintain in its local office a complete, fully-dimensioned, and up-to-date set of as-built system maps and drawings upon completion of construction. As-built drawings shall show all facilities. The scale of maps and drawings shall be sufficient to show the required details in easily readable form and size. (Ord. 2004-9 § 1 (part), 2004)

13.20.200 Indemnity.

To the maximum extent permitted by applicable law, company 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 there from, 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 within the City based upon any act or omission of company, its agents or employees, contractors, subcontractors, independent contractors, or representatives except for that which is attributable to the active 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. 2004-9 § 1 (part), 2004)

13.20.210 Insurance.

Except as provided in or as supplemented by any franchise agreement, license or permit, company shall secure and maintain, at all times, insurance, which types and amounts shall be determined by the Risk Manager. (Ord. 2023-22 § 623, 2023; Ord. 2004-9 § 1 (part), 2004)

13.20.220 Failure of the City to Enforce this Chapter.

A company 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. 2004-9 § 1 (part), 2004)

13.20.230 Company or its Assignees Subject to Present and Future Ordinances and/or Resolutions.

A. Any company, its assignee, or transferee shall be subject to, and expected to comply with, all applicable lawful codes and/or resolutions now or hereafter adopted and in effect within the City, including this chapter, to the extent that such company has not received an exemption or relief from the code(s) and/or resolution(s).

B. Any company, its assignee, or transferee shall be subject to all federal and State laws and with all rules and regulations issued by all applicable regulatory agencies now or hereafter in existence. (Ord. 2004-9 § 1 (part), 2004)

13.20.240 Notices.

Director and company shall provide the other with the name and address of the contact designated to receive notices, filings, reports, records, documents and other correspondence. All notices shall be delivered to each party’s contact by certified mail, return receipt requested, personal service with a signed receipt of delivery, overnight with receipt verification, or facsimile. All other filings, reports, records, documents and other correspondence may be delivered by any legally permissible means including, but not limited to, facsimile transmission, personal service, overnight mail, or package delivery. The delivery of all notices, reports, records and other correspondence shall be deemed to have occurred at the time of postmark unless otherwise designated by State law. (Ord. 2004-9 § 1 (part), 2004)

13.20.250 Administration—Declaration of Powers and Authority.

A. Director is designated the officer of the City who is responsible for the continuing administration of this chapter.

B. Unless prohibited by federal, State or local law, the Director may further delegate his/her powers and authority to a duly authorized representative with respect to administering this chapter. (Ord. 2004-9 § 1 (part), 2004)

13.20.260 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 13.20.290, the Director shall have the right to revoke any PROW Permit granted hereunder and to terminate all rights and privileges of the PROW Permit hereunder in the event of the following:

A. Violation of any material provision of the PROW Permit;

B. The failure to begin or complete construction as provided under the PROW Permit;

C. Failure to pay any PROW Permit fee or other payment required by any PROW Permit granted pursuant to this chapter, to the City when due. (Ord. 2004-9 § 1 (part), 2004)

13.20.270 Appeals From Action of the Director.

If company is aggrieved by any decision of the Director under this chapter, company may appeal the decision 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 Director’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 Manager, not less than ten (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 Clerk shall provide written notification of the time and place set for hearing the appeal. The City Manager may sustain, overrule or modify the action of the Director, and decision of the City Manager shall be final as to the City but subject to judicial review pursuant to California Code of Civil Procedure Section 1094.5.

The right to appeal to the City Manager shall terminate upon the expiration of ten (10) days following personal delivery to company or the deposit of a letter in the United States mail advising company of the action of the Director and of the right to appeal such action to the City Manager. (Ord. 2023-22 § 625, 2023; Ord. 2004-9 § 1 (part), 2004)

13.20.275 Possessory Interest.

By accepting any PROW permit granted pursuant to this chapter, company acknowledges that notice is and was hereby given to company pursuant to California Revenue and Taxation Code Section 107.6 that the use or occupancy of any public property may cause certain taxes to be levied upon such interest. Company shall be solely liable for, and shall pay and discharge prior to delinquency, any and all possessory interest taxes or other taxes levied against its right to possession, occupancy or use of any PROW or public property pursuant to any right of possession, occupancy or use created by any PROW permit. (Ord. 2023-22 § 626, 2023; Ord. 2004-9 § 1 (part), 2004)

13.20.280 City’s Obligation.

In enforcing this chapter, City is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its officers and employees, and obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury. (Ord. 2004-9 § 1 (part), 2004)

13.20.290 Opportunity to Cure and Correct.

A. Not more than fourteen (14) days following receipt of written notice by Director, or such shorter period as may otherwise be provided in this chapter, company shall cure and correct any violation of this chapter. If company has commenced the cure of the noticed violation and cannot cure and correct the noticed violation within the required time period, the Director shall, grant additional time as the Director determines is reasonably necessary for company to cure and correct.

B. Failure by company to cure and correct violations of this chapter shall subject company to revocation or retention of financial security provided within Section 13.20.130 or permit termination or revocation pursuant to Section 13.20.260. (Ord. 2004-9 § 1 (part), 2004)