Chapter 12.01 ENCROACHMENTS AND USE OF CITY RIGHTS-OF-WAY AND PUBLIC UTILITY EASEMENTS

The standards and procedures provided in this chapter are adopted to protect public safety; to protect and preserve public property; to assure control inspection and maintenance of public and private improvements within public rights-of-way and public utility easements affecting the public; to provide for the orderly time, manner and location for use of the rights-of-way and public utility easements in the City; to minimize and reduce impacts to public safety and City resources; to minimize and reduce impacts to the City, its residents and visitors; and for the general health and welfare of the public. (Ord. 1474 § 1 (part), 2014)

12.01.020 Definitions.

The words and terms used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

A. “Abandon” or “abandoned facilities” means facilities not used to provide service for a period of one hundred eighty days, or if the authorization to enter the right-of-way held by permittee is revoked, terminated or abandoned.

B. “Arterial street” means any street classified as arterial per the Circulation Element of the City’s General Plan.

C. “Applicable law” means all lawfully enacted and applicable Federal, State, and local laws, ordinances, codes, rules, regulations and orders as may be amended or adopted from time to time.

D. “Business day” means a day on which the main operations of the City of San Carlos are open for business and does not mean any day on which only specialized functions are in operation, such as divisions of the City or its agents that operate on a twenty-four/seven schedule.

E. “City” means the City of San Carlos, California. Any act that may be taken by the City, the City Council or any agency, department, agent or other entity now or hereafter authorized to act on the City’s behalf.

F. “City Council” means the governing body of the City of San Carlos, California.

G. “City Manager” means the City Manager or any person authorized or designated by the City Manager to act on his or her behalf.

H. “Collector street” means any street classified as a minor collector or major collector per the Circulation Element of the City’s General Plan.

I. “Construction,” “operation,” “maintenance” or “repair” and similar formulations of those terms mean the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, repair, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, excavation and tree trimming. The term “operation” does not encompass or regulate the provision of services or the ownership or use of facilities in rights-of-way or other property subject to the jurisdiction of the City, but refers to activities affecting rights-of-way and other property subject to the jurisdiction of the City.

J. “CPUC” shall mean the California Public Utilities Commission or its successor agency.

K. “Days” means calendar days, unless otherwise indicated.

L. “Emergency” means an immediate hazard or danger to life, health or property.

M. “Emergency encroachment” means an encroachment necessitated by the public good, safety, health or welfare by a person or entity with facilities located in the right-of-way.

N. “Emergency street cut” means any street cut by a utility to repair a facility within the right-of-way to remediate an immediate hazard or danger to life, health or property, as determined at the discretion of the Public Works Director.

O. “Encroach” or “encroachment” includes use upon, over or under a right-of-way or public utility easement, or using a right-of-way or public utility easement or an area adjacent to a right-of-way or public utility easement in such a manner as to permanently or temporarily prevent, obstruct or interfere with the intended or normal use of that way or easement, or a modification of its mode of use, including but not limited to:

1. Excavation, fill, disturbance or disturbing the surface;

2. Erection, construction, placement or maintenance of any facility within or along the public right-of-way or easement;

3. Planting or maintaining any landscaping or hardscape;

4. Placement or maintenance of any waste material, except the placement of solid waste, compostables or recyclables in authorized receptacles for pick-up in the right-of-way in accordance with Chapter 8.04;

5. Traveling by any vehicle or combination of vehicles or object of dimension, weight or other characteristic prohibited by law without a permit including oversized and overweight vehicles;

6. The application of paint or other marking materials;

7. Implementing any type of traffic control that affects vehicular or pedestrian traffic in the public right-of-way;

8. Reserving any parking space or street space for a specific event or cause, including, but not limited to, any construction project or moving in or out of a property.

P. “Encroachment permit” means a permit issued pursuant to and in conformance with this chapter.

Q. “Facility” or “facilities” means any post, sign, pole, fence, guard rail, wall, pathway, sidewalk, driveway, track, surfacing, culvert, drainage facility, object, pipe, pipeline, vault, valve, switch, panel, pedestal, appurtenances, conduit, cable, utility cabinet, embankment, excavation, public improvements, structure, pipe, conduit, wire, cable or telecommunications or similar property constructed or placed in the right-of-way or public utility easement.

R. “Fence” means an obstruction of whatever material or composition which is designed, intended or used to protect, defend or obscure the interior property of the owner thereof from the view, trespass or passage of others upon the property.

S. “Hardscape” means any constructed flatwork built of concrete, stone, wood, or other such non-pervious or pervious durable material.

T. “Landscape” means any tree, hedge, shrub, grass, groundcover, plant, or growing thing excluding public landscaping, as defined by Section 12.20.020.

U. “Material change” means any variation from approved plan other than horizontal changes of one foot or less.

V. “Minor encroachment” means a traffic lane closure or physical improvements located within sidewalk or landscape adjacent to a residential street.

W. “Minor street cut” means an asphalt cut on a residential street which total area does not exceed thirty square feet.

X. “Major encroachment” means a traffic lane closure or physical improvements located within sidewalk or landscape adjacent to a collector or arterial street.

Y. “Major street cut” means an asphalt cut on a residential street with total area in excess of thirty square feet or an asphalt cut of any size on a collector or arterial street.

Z. “Permittee” means any person seeking and/or that has obtained an encroachment permit pursuant to this chapter.

AA. “Public Works Director” means the Public Works Director or his or her designee.

BB. “Utility” means an entity constituting a public utility under State law or having a valid Certificate of Public Convenience issued by the CPUC.

CC. “PUE” shall mean public utility easement.

DD. “Right-of-way” means the surface, the air space above the surface and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, park strip, parkway, trail, waterway, culvert, easement, or similar property in which the City now or hereafter holds any property interest.

EE. “Street” has the same meaning as right-of-way.

FF. “Waste material” means any rubbish, brush, earth or other material of any nature which is unused, unwanted, discarded or to be recycled.

GG. “Work hours” are the allowable hours of construction in the public right-of-way and are permitted Monday through Friday, eight a.m. to four p.m., or as directed by the Public Works Director. Construction is not permitted on Saturday or Sunday or on City observed holidays, including but not limited to: New Year’s Day, Martin Luther King Jr. Day, President’s Day, Memorial Day, 4th of July, Labor Day, Veteran’s Day, Thanksgiving Day, and Christmas Day. (Ord. 1474 § 1 (part), 2014)

12.01.030 Encroachment permit required.

A. Except as otherwise provided in this chapter, it is unlawful for any person to encroach or make or cause to be made any encroachment in the public right-of-way or on property subject to a PUE, or other easement available for use by public utilities, without first obtaining an encroachment permit from the Public Works Director.

B. No use of any right-of-way or any other interest or property pursuant to this chapter shall create or vest in a permittee any ownership or other interest in the right-of-way, streets or other property or interest of the City. Permits issued in accordance with this chapter may be revoked at any time deemed necessary by the Public Works Director.

C. All obligations, responsibilities and other requirements of the permittee as described in this chapter shall be binding on subsequent owners of the facility or encroachment.

D. Any person owning or maintaining any encroachment existing as of the effective date of this chapter, which has not previously been the subject of a written permit or agreement, and is not exempt under Section 12.01.040, shall be required to apply for a permit pursuant to this chapter by July 1, 2014. If an application is not timely made, or if application is made but a permit is denied, the City may remove the encroachment. Prior to such removal the City shall give not less than thirty days’ written notice by mail to the person or persons who reasonably appear to own or maintain such encroachment, if the identity and address thereof can be ascertained with reasonable efforts by the City.

E. Each permit shall specify its duration and shall become null and void after the date so specified, or any extension thereof, unless the permit is terminated sooner by discontinuance of the use or removal of the encroachment for which the permit was issued.

F. A permit for an ongoing encroachment shall be considered to be of indeterminate duration.

G. Any encroachment for which a permit is required and for which no permit has been issued pursuant to this chapter shall be deemed a public nuisance which may be abated by the City pursuant to Chapter 1.20 or as provided elsewhere in the Municipal Code. (Ord. 1474 § 1 (part), 2014)

12.01.040 Exceptions to permit requirement.

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

A. Any sign erected, constructed and maintained in compliance with Chapter 12.28, except billboards;

B. The action of any officer or employee of the City engaged in the discharge of official duties; or

C. The nonpermanent marking of pavement, curbs and sidewalks by the City, utility companies, engineers and surveyors to indicate the location of underground utility lines and monuments in connection with surveying and design may be done without a permit; all other pavement, curb and sidewalk markings require a permit.

D. Installation and maintenance of landscape adjacent to residential properties in accordance with Section 12.20.030.

E. Use or occupation of City owned or controlled property that is not a right-of-way or subject to a public utility easement. In such cases a lease, license or easement shall be required.

F. Marquees, awnings and other projecting structures and building appendages which project over the right-of-way, comply with the requirements of the Uniform Building Code for use of public streets and projections over public property, and are part of a building or structure which has been granted a valid building permit pursuant to Title 18.

G. The performance of work under contract to the City or by the City itself.

H. The placement or maintenance of newsracks in compliance with this Code or State or Federal law; the City shall be notified in writing prior to the placement of any newsrack. (Ord. 1474 § 1 (part), 2014)

12.01.050 Pavement preservation.

Any street that has been constructed, reconstructed, resurfaced or resealed shall not thereafter be cut or opened for a period of two years, except for emergency street cuts. The Public Works Director shall also grant exemptions under the following circumstances:

A. Relocation work that is mandated by a county, State or Federal agency.

B. Service for buildings or parcels where no other reasonable means of providing service exists, as determined by the Public Works Director.

C. Other situations deemed by the Public Works Director to be in the best interest of the general public.

When granting exceptions to this regulation, the Public Works Director may impose conditions to ensure the rapid and complete restoration of the street, surface paving, public signage and striping. (Ord. 1474 § 1 (part), 2014)

12.01.060 Permit application process.

All persons desiring or intending to obtain an encroachment permit must apply with the Public Works Department by submitting a completed application signed by the applicant. The Public Works Director shall prescribe and provide an application form for permits required by this chapter. The application shall be signed by the applicant and shall include the following:

A. The name, address and telephone number of the applicant for a permit;

B. The name, address and telephone number of the property owner;

C. The name, address and telephone number of the contractor if the proposed work is to be done by a contractor. If the name of the contractor is not known to applicant at the time of submittal of the application, any encroachment permit issued shall be conditional upon the furnishing of contractor related information to the City Engineer not later than ten days after the contractor is known to the permittee, and at least three days prior to commencement of work by the contractor, unless the Public Works Director gives a written extension to provide this information;

D. The location, purpose, extent and nature of the proposed work;

E. The period of time when the proposed work will be performed;

F. A certificate of insurance for the applicant and contractor’s insurance carrier in a form satisfactory to the City;

G. Proof of a San Carlos business license of any and all contractors intending to perform work under a permit;

H. All other complete and descriptive information, including plats, plans, specifications and analyses the Public Works Director may require so as to describe the work and its effect on the right-of-way, including the mode of operation, maintenance and use;

I. Information concerning the supervision and safety precautions to be employed, including the erection of barricades, warning lights, signals and signs, and the employment of personnel to direct traffic. If any lanes of traffic will be closed or work is adjacent to any pedestrian or bike lane or vehicle travel way, the applicant shall also submit a traffic control plan to be reviewed and approved by the Public Works Director.

J. The written order or consent to work thereunder, required by law, issued by the CPUC or agency or body having jurisdiction;

K. Current maps and records of the underground facilities at the site, if applicable, unless this requirement is waived by the Public Works Director;

L. The application for a permit shall refer to, and incorporate by reference, all of the provisions of this chapter;

M. The permittee shall insure that its agents, employees and contractors are at all times in compliance with all applicable laws, regulations and orders;

N. Copies of any and all other required licenses, permits or approvals required by the City or any other governmental agency or other private party;

O. No substantial changes shall be made in the plans, design, location, dimensions, character or duration of the encroachment or use as granted by the permit except upon written authorization of the Public Works Director. Unapproved changes shall subject the permittee to penalties as described in Chapter 1.20. The City may require the removal of all work done or facilities installed without a permit or not in compliance with the conditions of a permit. (Ord. 1474 § 1 (part), 2014)

12.01.070 Fees.

A. The City Council shall establish a schedule of fees for encroachments by resolution.

B. Unless waived in writing by the Public Works Director, fees will be required of any public or utility agency which is authorized by law to establish or maintain any works or facilities in, under or over any public street or right-of-way.

C. Independent contractors under direct contract with the City, for work in benefit of the City, are exempt from fees under this provision when working in benefit of the City and performing duties in the public right-of-way in accordance with the terms of the contract.

D. An encroachment permit shall not be issued until all fees and/or security have been fully paid. (Ord. 1474 § 1 (part), 2014)

12.01.080 Security required.

A. The Public Works Director may require security in a reasonable amount based on the project size and/or scope, as reasonably determined by the Public Works Director, sufficient to reimburse the City for costs of restoring the right-of-way. Any bond amount will be based on an estimate provided by the permittee and approved by the Public Works Director. Required security may include encroachment bonds, faithful performance bonds, labor and material bonds, cash, certificate of deposit, letter of credit or other security deemed acceptable by the Public Works Director.

B. At any time the Public Works Director determines that the amount of the security is insufficient to cover potential costs or damages which might result from the project, the Public Works Director may require, in writing, the permittee to post an additional bond or cash deposit, or combination thereof, as a condition of continuing work on the project; work shall not continue until this requirement is satisfied. (Ord. 1474 § 1 (part), 2014)

12.01.090 Permittee to indemnify City.

The permittee shall be liable for and shall indemnify and hold the City harmless from all harm, injuries, or damages (including attorney’s fees), including but not limited to damage to persons or property, which occur in connection with or resulting from the ongoing use of the right-of-way. The permittee’s liability under this section shall not apply to any harm, injuries or damages resulting solely from the City’s negligence or willful misconduct as adjudged by a court of competent jurisdiction. Prior to issuance of the permit, the permittee shall furnish to the City evidence of insurance coverage and endorsements (including self insurance, if applicable) as designated by the City for the liability assumed by the permittee. The City shall provide reasonable notice to the permittee upon receipt of any third party claim of loss, action or demand and cooperate with the permittee’s defense against third party claims, including providing reasonable access to information, evidence, and witnesses necessary to defend against such claim. (Ord. 1474 § 1 (part), 2014)

12.01.100 Permit approval and issuance.

A. Within ten days of receipt of an encroachment permit application, the Public Works Director will make reasonable effort to either: deem the application complete in compliance with all requirements of this chapter and any other applicable law, or notify the applicant of deficiencies. Once the application is deemed complete, the encroachment permit shall either be denied, or approved and issued within twenty-one days. Permits may include any conditions the Public Works Director deems reasonably necessary to protect the public interest, safety and welfare.

B. The issuance of a permit pursuant to this chapter is not a franchise, and does not grant any vested rights in any location in the public right-of-way, or in any particular manner of placement within the right-of-way. Without limitation, a permit to place cabinets and similar appurtenances aboveground may be revoked and the permittee required to place all its facilities underground, upon reasonable notice to the permittee.

C. Any encroachment shall be relocated, at the sole expense of the permittee, as may be necessary for public necessity or convenience, as determined by the Public Works Director. Such relocations shall be under the same terms and conditions as the initial installation allowed, pursuant to permit.

D. Upon issuance of a permit, the permittee agrees to accept and abide by all the terms and conditions of the permit, the City standard and details, and all conditions set forth in this chapter. If the applicant has any objection to any of the terms or conditions, the applicant must provide written notice to the Public Works Director within three days of issuance stating that the permit was not accepted, thereby voiding the issued permit. (Ord. 1474 § 1 (part), 2014)

12.01.110 Notices, term of permit.

A. Commencement of Work or Use. The permittee shall begin the work or use authorized by a permit issued pursuant to this chapter within ninety calendar days from date of issuance, unless a different time period is stated in the permit. If the work or use is not commenced in a timely fashion, then the permit shall become void, unless an extension of time to commence work has been granted by the Public Works Director.

B. Notices. The permittee may be required to provide notice of installation of any facilities to property owners within three hundred feet of the encroachment as directed by the Public Works Director and/or the Director of Community Development.

C. Schedule of Work. The permittee shall notify the Public Works Director at least two business days prior to start of any work, except for work performed in connection with an emergency. Should the work stop for more than two consecutive City working days, the permittee shall again notify the Public Works Director as noted above prior to restarting the work. The work must be diligently prosecuted to its completion and shall be performed in such a manner as to cause minimum inconvenience and hazard to the public to the extent reasonably possible as determined by the Public Works Director.

D. All conditions of approval listed on the permit shall be followed, unless otherwise allowed by the Public Works Director.

E. Inspections. The permittee shall call and schedule all required inspections at least twenty-four hours in advance as required by the permit.

F. Acceptance of Work or Use. The permittee shall notify the Public Works Director when work or use is complete. The Public Works Director shall accept the work or use as completed only after the permittee has fulfilled all obligations under this chapter and the provisions of the permit, cleaned the site of all debris, left the site in a neat and workmanlike condition, and completed construction per City standards and details. The Public Works Director shall indicate acceptance by endorsing the permit in the space provided.

G. Encroachment Agreement. In any case where the City Engineer estimates that the cost of the work will exceed twenty thousand dollars, or that a dangerous or hazardous condition will be created by the doing of the work, whether to persons or property, the Public Works Director may require that the applicant enter into an improvement and/or encroachment agreement with the City on such terms and conditions. In addition, an applicant that is to construct a permanent or semi-permanent structure in or along the public right-of-way, including, but not limited to, the construction of fences, retaining walls, landscape or draining facilities, shall be required to enter into an encroachment agreement with the City.

H. Supplemental. The Public Works Director may require additional conditions upon or after the issuance of a permit as are applicable and necessary to meet specific situations, for the public safety and to insure compliance with this chapter and all other City, State or Federal regulations.

I. In the event of an emergency, or where the facilities of a permittee creates or is contributing to an imminent danger to health, safety, or property, the City may remove, relay, or relocate any or all parts of such facilities, without prior notice. However, the City shall make reasonable efforts to provide prior notice.

J. Any contractor or subcontractor used for work or construction, installation, operation, maintenance, or repair of facilities to be installed pursuant to a permit authorized by this chapter must be properly licensed under the laws of the State and all applicable local ordinances, and each contractor or subcontractor shall have the same obligations with respect to its work as the permittee would have under this chapter and applicable law if the work were performed by permittee. The permittee shall be responsible for ensuring that the work of contractors and subcontractors is performed consistent with this chapter and other applicable law, shall be responsible for all acts or omissions of contractors or subcontractors, shall be responsible for promptly correcting acts or omissions by any contractor or subcontractor, and shall implement a quality control program to ensure that the work is properly performed. This section is not meant to alter tort liability of a permittee to third parties.

K. If the permittee abandons use of structures, cable, equipment or other facilities placed in the right-of-way pursuant to the permit, then at the City’s option, City may require the permittee to remove all such structures, cable, equipment or other facilities or may elect to accept ownership, in which case, title to such facilities shall vest in the City. Abandonment shall be presumed if the permittee stops use of its property, equipment, structures, facilities or other property placed in the right-of-way or City property for a period of thirty days.

L. Stop Work Orders. Whenever any work is being done in an unsafe manner or contrary to the scope of the permit, the provisions of this Municipal Code, or the terms of the permit or local, State, or Federal law, the Public Works Director may order the work stopped, served on any person engaged in the doing or causing of unlawful, unsafe, or unauthorized work, and any such person shall forthwith stop such work. Any person performing work in the right-of-way or City property shall have a copy of a valid encroachment permit issued by the City at the site and shall make such permit available for inspection by the City at all times work is being performed or property or equipment is located in the right-of-way or City property. (Ord. 1474 § 1 (part), 2014)

12.01.120 Permit valid for described and approved work or use only.

The permit issued shall not be valid for any work or use other than that described in the permit and as shown on the approved plans. No material changes to the location, size, or type of encroachment shall be allowed except upon authorization of the Public Works Director. (Ord. 1474 § 1 (part), 2014)

12.01.130 Display of permit.

A. A copy of any permit issued pursuant to this chapter shall be kept at the site of any work pertaining to the encroachment and shall be shown to any authorized representative of the City on demand.

B. A permit issued for continuing use or maintenance of an encroachment involving the residence or place of business of the permittee must be kept at the residence or place of business and shall be made available to an authorized representative of the City within twenty-four hours. (Ord. 1474 § 1 (part), 2014)

12.01.140 Construction requirements.

The permittee shall comply with all construction requirements established by the Public Works Director, including but not limited to the requirements set forth in this section.

A. Standards of Construction. All work performed under the permit shall conform to applicable law and recognized standards of construction, including but not limited to the current City standards and details relating to street improvements and any special provisions relating thereto, except those standards which may conflict with those specifically required by the CPUC or State or City franchise agreements.

B. Underground Service Alert (U.S.A.). Prior to commencement of any excavation, the permittee shall call U.S.A. for field marking of existing underground utilities in accordance with applicable rules.

C. Inspection and Approval. All work shall be subject to monitoring, inspection, and approval by the Public Works Director.

D. Protection of Traffic. The permittee shall place and maintain adequate signs, barricades, warning lights, and other safeguards necessary to protect the public, and shall maintain safe crossings for pedestrian and vehicular traffic during the entire course of the work. Warning signs, lights and safety devices shall conform to the requirements of the current State of California Manual of Uniform Traffic Control Devices.

E. Repairs. Each permittee shall be responsible for restoring to its former condition as nearly as possible any portion of the right-of-way which has been excavated or otherwise disturbed or damaged by the permittee. If the right-of-way is not restored as provided herein, the City shall notify the permittee of any deficiencies. If the permittee fails to respond within five business days of the date of notification or the Public Works Director deems said deficiencies a public hazard, the City may make the repairs, and the permittee shall bear the cost thereof. The permittee is responsible for maintaining the work area at its sole cost and expense until the City accepts the work covered by the permit. Each permittee shall repair and correct any and all defects and deficiencies due to workmanship or materials in connection with the permit. Permittee shall warrant the work in the right-of-way to be free of defects for one year from the date the Public Works Director accepts the work. The Public Works Director may require a warranty bond, cash deposit or other security to secure performance of any warranty as a condition of the encroachment permit.

F. As-Built Plans. When construction is complete, permittee shall provide a set of as-built construction drawings to the Public Works Director. (Ord. 1474 § 1 (part), 2014)

12.01.150 Extending permit.

The Public Works Director may grant the permittee a time extension to a permit subject to compliance with the requirements of this chapter, provided there are no changes to the original scope of work and materials or to the original approved construction plans since the initial issuance of the permit. The permittee shall request a time extension to a permit before the permit’s expiration date. (Ord. 1474 § 1 (part), 2014)

12.01.160 Release or revision of bonds and cash deposits.

Any bond or cash deposit submitted pursuant to this chapter shall be released only upon completion of all work and conditions set forth in the permit deemed satisfactory by the Public Works Director. (Ord. 1474 § 1 (part), 2014)

12.01.170 Ongoing use of right-of-way.

In addition to complying with all relevant requirements for obtaining a permit contained herein, a person or entity owning facilities in, seeking to install facilities in, or using right-of-way shall comply with all requirements of this section except where specifically preempted by law and under the exclusive regulatory jurisdiction of County, State or Federal regulatory agencies.

A. Encroachments at No Expense to City. The design, construction, installation, operation, maintenance, relocation, and removal of the permittee’s facilities shall be at no expense to the City and shall be subject to the reasonable approval of the Public Works Director to preserve the integrity and effective use of the public rights-of-way and to protect the public health, safety and welfare.

B. Relocation or Removal of Encroachment. The permittee shall remove or relocate any installation owned by permittee that is in conflict vertically and/or horizontally with any City installation that is a proper governmental use of the right-of-way. If the permittee does not complete removal or relocation within a reasonable period of not less than ninety days as required by the Public Works Director, the City shall have facilities removed or relocated at the permittee’s expense. Before proceeding with relocation work, the permittee shall obtain appropriate permits and approvals and shall restore the area vacated to an acceptable condition as reasonably determined by the Public Works Director.

C. Requirements for Utility Distribution and Transmission Facilities. Owners of public or private utility distribution or transmission facilities placed in the right-of-way shall comply with the following:

1. No Interference with Existing Uses. Should the City permit facility installations (not including any City-owned installations) where there are existing facilities, the permittee shall work around existing facilities. Should it prove impractical to work around existing facilities, requiring the relocation of any existing facilities, and if the owner of said existing facilities agrees to relocate them, the owner shall promptly relocate its facilities. The reasonable cost of relocating existing facilities shall be borne solely by the permittee. However, if at least one of the following applies, the owner shall promptly relocate its facilities at no cost to the permittee:

a. Existing facilities were not properly installed;

b. Facilities installed unlawfully;

c. Federal, State, or local law requires relocation.

2. Franchises and Authorizations. The permittee shall obtain franchises, other authorizations and/or agreements, if reasonably required by the City and applicable law, and shall comply with the provisions of any such franchise or other authorization, providing proof of satisfaction of any condition thereof.

3. Maintenance of Facilities. Facilities owned by permittee installed pursuant to this chapter shall at all times be maintained in accordance with the requirements of all applicable laws, franchises and authorizations. The permittee shall maintain its facilities in good repair and in a safe condition to the reasonable satisfaction of the Public Works Director, or applicable regulatory agencies.

4. Identification of Facilities. The permittee shall identify the location and provide all information concerning the materials used for any facilities installed in the right-of-way in accordance with the requirements of applicable law or by means of identification method as directed by the Public Works Director. The location of the facilities shall be detectable from ground level without opening the street. The permittee shall provide the City a telephone contact number, staffed twenty-four hours per day, seven days per week, to enable the City to report any concerns regarding the facilities, including, but not limited to, the removal of any graffiti/vandalism. In the event that the City reports such concerns to the permittee, the permittee shall within seventy-two hours, unless weather or emergencies prohibit timely action, respond to such call and perform the required repair or correct any adverse impact to the City’s or third party’s use or operations caused by the permittee’s facilities in the right-of-way at no cost to the City.

5. Notice of Fluid or Natural Gas Leaks. Permittee shall notify the City and all appropriate regulatory agencies of any leak in the rights-of-way of City, including but not limited to the following: fluids that have the potential to enter into or onto City facilities, natural gas, propane or other noxious or flammable substance that can be detected visually, by sound or by sense of smell, that has or might cause mobilization for a response by public safety or other City personnel.

6. Compliance with Applicable Laws. The permittee shall comply with all applicable Federal, State, or local laws, rules and regulations, including but not limited to City noise ordinances; and City standards relating to street improvements: design criteria, standard specifications, and standard details, as determined by the Public Works Director from time to time.

7. Requirements for Above-Ground or Surface-Mounted Facilities. Above-ground or surface-mounted facilities placed pursuant to this chapter shall be placed in a location approved by the Public Works Director and be consistent with the following guidelines:

a. Shall be consistent with CPUC rulings, rulemaking, regulations and requirements;

b. Shall be no larger than is reasonably necessary to contain and protect the required facilities. In the event any above-ground or surface-mounted facility exceeds seventy-two inches high, fifty-nine inches wide and twenty-seven inches deep, an environmental review under CEQA and any other applicable laws must occur prior to permit issuance;

c. Shall not obstruct pedestrians and shall comply with the Americans with Disabilities Act and access-related regulations, including maintaining pedestrian clearance (free of all obstacles for a clear path of travel, unobstructed pedestrian walkway) except during erection, construction, placement and maintenance;

d. Shall be set back a minimum of two feet from the face of the curb or less as approved by the Public Works Director;

e. Shall not intrude into the vehicle visibility obstruction area at street corners or create vehicle driveway obstructions;

f. Shall not be placed at street intersection corners or at the end of T-intersections reserved for traffic signal facilities except as approved by the Public Works Director;

g. Shall not obstruct pedestrian, technician, or vehicle view of any traffic sign or signal;

h. Shall be placed with a minimum horizontal clearance of eight feet from any sanitary sewer or storm drain facility, except where an existing cabinet is already closer than eight feet to a sanitary sewer or storm drain line, a new cabinet of the same type may be placed adjacent to the existing cabinet with a minimum horizontal clearance of five feet from the sanitary sewer or storm drain line;

i. Shall be set back a minimum of five feet from any City utility facility, traffic signal facility, driveway, curb ramp, or blue zone parking space, or a minimum of three and one-half feet from any other entity’s above-ground or surface-mounted structure not otherwise specified herein, including but not limited to street poles, parking meters, and public art;

j. Shall be set back a minimum of eight feet from any fire escape and/or fire exit except as approved by the Public Works Director;

k. Shall not be placed on the property of, or immediately adjacent to, any designated local, State or national register historical landmark or structure;

l. Shall not violate any City Code or policy related to founders trees, heritage trees, protected trees, public trees or significant trees, including but not limited to the provisions related to alteration, removal, or trenching affecting any City-owned tree;

m. Shall be screened by landscaping where appropriate for the location. Where landscaping is required, permittee shall be fully responsible for all costs associated with removal and disposal of existing plant material, including replanting, modifications or repair of all irrigation disturbed as a result of installing, using, operating, and maintaining the facility. Replacement irrigation shall be in the same quantity, quality and of comparable size to those removed;

n. Shall be painted or coated to blend in with the surrounding environment; graffiti-proof coating that also blends shall be used if feasible.

D. Attachments to bridges and overpasses may be permitted with approval by the Public Works Director and other regulating agencies.

E. Utility main locations are subject to the approval of the Public Works Director.

F. A permittee shall furnish to the City detailed maps and record drawings depicting all of the permittee’s facilities, and their materials in specified portions of the right-of-way within the limits of any excavation by the City—such maps and drawings to be provided free of charge within twenty calendar days of any request. The detailed maps and record drawings shall show the approximate location, size, description, and nature of all of permittee’s facilities. The drawings and maps are not to be relied upon to determine the exact location of any underground facilities. To ensure a safe excavation, anyone desiring to excavate near the facilities must call U.S.A. prior to the start of excavation to allow for field marking of existing underground utilities.

G. A permittee shall pothole its subsurface facilities within fifteen days of receipt of a written request from the City to do so, unless the permittee can certify within one foot the location and depth of its facilities where potholing is requested. The City shall in no event pay any potholing expenses.

H. A permittee shall, at its sole expense, maintain membership in Underground Service Alert (U.S.A.) and shall field mark, at its expense, the location of its facilities upon notification in accordance with State law, including but not limited to Government Code Section 4216 and following, as it now reads or may hereinafter be amended.

I. A permittee shall inform the City in writing of any material change in contact information. Such written notice shall be provided to the Public Works Director within sixty days of the change. (Ord. 1474 § 1 (part), 2014)

12.01.180 Facilities in public utility easements.

A permittee seeking to install, remove, maintain or upgrade facilities subject to a PUE shall comply with all requirements of this section, except where specifically preempted by law and under the exclusive regulatory jurisdiction of County, State or Federal regulatory agencies.

A. Use at No Expense to City. The design, construction, installation, operation, maintenance, relocation, and removal of the permittee’s facilities shall be at no expense to the City and shall be subject to the reasonable approval of the Public Works Director to preserve the integrity and effective use of PUEs, public property and rights-of-way and to protect the public health, safety and welfare.

B. Relocation or Removal of Installations. The permittee shall remove or relocate any installation owned by permittee that is in conflict vertically and/or horizontally with any City installation or other proper governmental use provided it does not unreasonably restrict use of the PUE. If the permittee does not complete removal or relocation within a reasonable period of not less than ninety days as required by the Public Works Director, the City shall have the facilities removed or relocated at the permittee’s expense. Before proceeding with relocation work, the permittee shall obtain appropriate permits and approvals and shall restore the area vacated to an acceptable condition as reasonably determined by the Public Works Director.

C. Requirements for Utility Distribution and Transmission Facilities. Owners of public or private utility distribution or transmission facilities placed in a PUE shall comply with the following:

1. No Interference with Existing Uses. Should the City permit facility installations (not including any City-owned installations) where there are existing facilities, the permittee shall work around existing facilities. Should it prove impractical to work around existing facilities, requiring the relocation of any existing facilities, and if the owner of said existing facilities agrees to relocate them, the owner shall promptly relocate the owner’s facilities. The reasonable cost of relocating existing facilities shall be borne solely by the permittee. However, if at least one of the following applies, the owner shall promptly relocate the owner’s facilities at no cost to the permittee:

a. Existing facilities were not properly installed;

b. Facilities installed unlawfully;

c. Federal, State, or local law requires relocation.

2. Authorizations. The permittee shall obtain authorizations and/or agreements, if reasonably required by the City and applicable laws, and shall comply with the provisions of any such authorization and/or agreement, providing proof of satisfaction of any condition thereof.

3. Maintenance of Facilities. Facilities owned by permittee installed pursuant to this chapter or in a PUE shall at all times be maintained in accordance with the requirements of all applicable laws and authorizations. The permittee shall maintain its facilities in good repair and in a safe condition to the reasonable satisfaction of the Public Works Director, and applicable regulatory agencies.

4. Identification of Facilities. The permittee shall identify the location and all information concerning the materials used for any facilities installed in the PUE in accordance with the requirements of applicable laws or by means of an identification method as directed by the Public Works Director. The location of the facilities shall be detectable from ground level without opening the street. The permittee shall provide the City a telephone contact number, staffed twenty-four hours per day, seven days per week, to enable the City to report any concerns regarding the facilities, including, but not limited to, the removal of any graffiti/vandalism. In the event that the City reports such concerns to the permittee, the permittee shall within seventy-two hours, unless weather or emergencies prohibit timely action, respond to such call and perform the required repair or correct any adverse impact to the City’s or third party’s use or operations caused by the permittee’s facilities in the right-of-way at no cost to the City.

5. Notice of Fluid or Natural Gas Leaks. Permittee shall notify the City and all appropriate regulatory agencies of any leak located in a PUE, including but not limited to the following: fluids that have the potential to enter into or onto City facilities, natural gas, propane or other noxious or flammable substance that can be detected visually, by sound or by sense of smell, that has or might cause mobilization for a response by public safety or other City personnel.

6. Compliance with Applicable Laws. The permittee shall comply with all applicable Federal, State, or local laws, rules and regulations, including but not limited to City noise ordinances, and City standards, as determined by the Public Works Director from time to time.

a. Shall be consistent with CPUC rulings, rulemaking, regulations and requirements.

d. Shall be set back a minimum of two feet from the face of the curb or less as approved by the Public Works Director.

e. Shall not intrude into the vehicle visibility obstruction area at street corners or create vehicle driveway obstructions.

f. Shall not obstruct any trail, path, access, driveway or street.

g. Shall not obstruct pedestrian, technician, or vehicle view of any traffic sign or signal.

j. Shall be set back a minimum of eight feet from any fire escape and/or fire exit except as approved by the Public Works Director.

k. Shall not be placed on the property of, or immediately adjacent to, any designated local, State or national register historical landmark or structure.

n. Shall be painted or coated to blend in with the surrounding environment; graffiti-proof coating that also blends shall be used if feasible.

D. Utility main locations are subject to the approval of the Public Works Director.

E. A permittee shall furnish to the City detailed maps and record drawings depicting all of the permittee’s facilities in specified portions of the PUE within the limits of any excavation by the City, such maps and drawings to be provided free of charge within twenty calendar days of any request. The detailed maps and record drawings shall show the approximate location, size, description, and nature of all of permittee’s facilities. The drawings and maps should not be relied upon to determine the exact location of any underground facilities. To ensure a safe excavation, anyone desiring to excavate near the facilities must call U.S.A. prior to the start of excavation to allow for field marking of existing underground utilities.

F. A permittee shall pothole its subsurface facilities within fifteen days of receipt of a written request from the City to do so, unless the permittee can certify within one foot the location and depth of its facilities where potholing is requested. The City shall in no event pay any pothole expenses.

G. A permittee shall, at its sole expense, maintain membership in Underground Service Alert (U.S.A.) and shall field mark, at its expense, the location of its facilities upon notification in accordance with State law, including but not limited to Government Code Section 4216 and following, as it now reads or may hereinafter be amended.

H. A permittee shall inform the City in writing of any material change in contact information. Such written notice shall be provided to the Public Works Director within sixty days of the change. (Ord. 1474 § 1 (part), 2014)

12.01.190 Damage to existing facilities from encroachments.

A. The permittee is responsible for any damage to private property and City facilities, including but not limited to pavement, curb and gutters, sidewalk, landscaping, and utilities, occurring as a result of or in any way related to activities associated with the permittee’s encroachment, including installation, maintenance, repair, operation, and removal of permittee’s facilities in the right-of-way by the permittee, its employees or agents. The permittee’s liability under this section shall not apply to the extent that damage is caused by the sole or active negligence, willful misconduct or criminal acts of City, its agents or employees.

B. In the event of any damage caused by permittee, the permittee shall pay the cost of any replacements, repairs or restoration necessary to return the property, right-of-way, facilities, or installations to the condition that existed prior to the damage.

C. Any damage to surface and subsurface improvements, such as pavement or concrete over any trench/excavation or adjacent thereto, as reasonably determined by the Public Works Director which results from the permittee’s acts or omissions shall be the sole responsibility of the permittee. The permittee shall complete all necessary repairs within thirty days of notification by the Public Works Director, or if it reasonably would require more than thirty days to perform such repairs, within a time reasonably necessary, provided the permittee has undertaken to initiate the repairs within the thirty-day period and diligently pursues such efforts to cure to completion. If the permittee fails to make repairs within the applicable period, or if the Public Works Director determines the damage to be a public hazard, the City may have repairs made and bill the cost to the permittee. (Ord. 1474 § 1 (part), 2014)

12.01.200 Adherence to rules and regulations.

Each person shall comply with all rules and regulations contained herein even if the work has been performed under an emergency encroachment. The Public Works Director may revoke a permit issued under this chapter upon violation of any of its provisions or the provisions of any permit issued hereunder. (Ord. 1474 § 1 (part), 2014)

12.01.210 Transfer of permits.

Permits issued pursuant to this chapter are not transferable. A permittee’s agent may file an application for an encroachment permit on behalf of the permittee without causing a transfer of permit. (Ord. 1474 § 1 (part), 2014)

12.01.220 Inspections—Records—Corrective action.

A. The Public Works Director may require the permittee to perform special inspections of and maintain records for certain facilities constructed in the right-of-way or in public utility easements. The City also reserves the right to conduct periodic inspections throughout the construction phases of the project and to have access to any pertinent records of the permittee.

B. Final inspection of construction may be conducted by the City Engineer. At the City Engineer’s discretion, permittee may be required to be present. Permittee shall allow reasonable time for the City to prepare and provide a list of items requiring corrective action. Permittee shall undertake timely correction of all such items.

C. All persons owning underground facilities located in the City shall keep current, adequate and complete maps and records of same. Such maps and records shall be made available to the City upon request. (Ord. 1474 § 1 (part), 2014)

12.01.230 Changes in permit.

A. No changes may be made in the location, dimension, character or duration of the encroachment, its mode of operation, maintenance, or use as granted by the permit except upon written authorization of the City Engineer. All construction and use of materials must adhere to approved plans and specifications. The permittee shall coordinate all construction activities with the City Engineer.

B. No additional permit shall be required for the continuing use of encroachments installed by public utilities, provided that such continuing use conform to the conditions of the original encroachment permit and any later modifications to that permit. (Ord. 1474 § 1 (part), 2014)

12.01.240 Driveway approach permit—Conditions.

A. If a driveway approach is abandoned within five years after the date of the permit, permittee must restore the street to its original condition as it existed prior to the issuance of the permit. If the building served by the driveway approach is abandoned prior to such period, then permittee shall be released of the requirement to restore the curb.

B. All persons constructing new buildings shall apply for permits for both restoration of the curb to its original condition, where old driveways are abandoned, as well as for the installation of a new driveway approach prior to the final acceptance of the building by the building inspector of the City. (Ord. 1474 § 1 (part), 2014)

12.01.250 Emergency encroachments.

This chapter does not prevent a person from performing emergency maintenance to repair a broken or defective pipe, facility or conduit lawfully on or under a public right-of-way or PUE or excavating by a utility as may be necessary for the preservation of life and property when an urgent necessity arises. However, the person performing an emergency encroachment during normal City business hours shall notify the Public Works Director by telephone within four hours of beginning said emergency work. If the emergency work must occur during hours the City offices are closed, that notice shall be given to County Communications. The notice shall relay the nature and location of the emergency, and the person making an emergency use or encroachment shall apply for a permit the next business day. Utilities shall not be required to obtain an encroachment permit prior to work performed in connection with an emergency. Application for an encroachment permit shall be made within two days of commencement of such emergency work. (Ord. 1474 § 1 (part), 2014)

12.01.260 Abandonment or removal of facilities from right-of-way or PUE.

A. If a permittee intends to remove its facilities, the permittee shall obtain a permit pursuant to this chapter for all facility removal from the right-of-way or PUE prior to such removal.

B. If a utility intends to abandon its facilities, the utility shall notify the Public Works Director prior to abandonment by sending written notice at least thirty days prior to abandonment. All facilities shall be removed, abandoned in place, or dedicated no later than one hundred eighty days of the Public Works Director’s approval.

C. If the City determines a permittee (other than a utility) has abandoned privately owned facilities, the City shall provide the permittee with written notice to remove its facilities from the right-of-way within thirty days. Facility removal shall be at no cost to the City.

D. If the permittee (other than a utility) takes no action within this time period, the City may elect to accept title to such facilities free and clear, or remove the facilities and charge the permittee with all reasonable costs incurred in such removal. Permittee shall make payment within thirty days of the City’s return of such facilities to the permittee or making such facilities available to the permittee for pickup within City limits.

E. The provisions of this section apply only to City determinations of abandonment and not where the City has revoked a permit pursuant to Section 12.01.300. (Ord. 1474 § 1 (part), 2014)

12.01.270 Obstructions deemed public nuisance.

A. The City and its residents share in the care and management of landscape within the right-of-way located adjacent to private property. No owner or legal occupant of any premises abutting upon any right-of-way shall permit the existence of obstructions defined by this chapter to be a nuisance.

B. The following is to be a nonexclusive list of obstructions which under this chapter are deemed to obstruct the view from vehicles traveling on public streets and the passage of pedestrians on the sidewalks and of vehicles on the rights-of-way abutting thereon and are declared to be a public nuisance and prohibited as unlawful:

1. A tree with limbs overhanging the right-of-way, the lowest part of which is less than eight and one-half feet above the right-of-way;

2. Landscape overhanging the street, gutter, sidewalk or obstructing any municipal utility facility or fire hydrant;

3. Any landscape which is so situated as to obscure and impair the unobstructed view of intersecting traffic by passing motorists or pedestrians or obscure and impair the view of street, traffic, and other control devices and signs placed upon the streets for the safety of the public.

C. The Public Works Director, upon determining that one or more of the nuisances prohibited herein exist or that any other similar obstruction to the passage of vehicles or pedestrians at intersections exists on premises within the City, shall give written notice to the property owner or legal occupant having charge or control of the premises to remove the nuisance so designated therein, and it is unlawful for the owner or legal occupant having charge or control of the premises to neglect or fail to remove therefrom the obstruction within five business days from the date of the notice.

D. If the Public Works Director finds that any right-of-way obstruction is an immediate peril or menace to the public, to any person, or to pedestrian or vehicular traffic, the City Manager may cause it to be summarily removed. Upon summary removal of the obstruction, the City Manager shall provide written notice to the property owner of actions taken. Any cost incurred by or fees imposed by the City in the removal, alteration, relocation, or demolition of any sign pursuant to the provisions of this title or any other pertinent ordinance of the City, shall be paid by the owner of property abutting the right-of-way on which the obstruction was located.

E. In addition to any of the remedies provided for herein or by law for violations of this chapter, the City Attorney may maintain an action for injunction to restrain or abatement to correct or compel the removal of such violation or violations as provided in this Code. (Ord. 1474 § 1 (part), 2014)

12.01.280 Emergency suspension of permit.

Whenever the City Engineer finds that a suspension of an encroachment permit is necessary to protect the public health or safety from imminent danger, the City Engineer may immediately suspend any such permit pending a hearing for remedial action or revocation. The City Engineer shall, within three working days of the emergency suspension of the permit, notify the permittee of such suspension by written notice, personally served upon the permittee, or mailed by first class mail, postage prepaid, to the last known address of the permittee. The permittee may, within fifteen days after service of such a written notice of suspension, request a hearing before the Director of Public Works with regard to such emergency suspension. The Director of Public Works shall schedule a hearing on the suspension within five working days of receipt of a request for hearing. (Ord. 1474 § 1 (part), 2014)

12.01.290 Hearing on emergency suspension of permit.

A. If the Director of Public Works, after the hearing, finds that cause exists for remedial action, the Director shall impose one or more of the following:

1. A warning;

2. An order to correct any particular noncompliance;

3. A revocation of the encroachment permit;

4. A continued suspension of the encroachment permit;

5. A modification or reinstatement of the encroachment permit, with conditions.

B. The Director shall, within ten days of the hearing, render a written opinion, stating the findings upon which the decision is based, and the action taken. The decision of the Director shall be final. (Ord. 1474 § 1 (part), 2014)

12.01.300 Suspension or revocation of permit.

Any permit issued pursuant to this chapter may be suspended or revoked upon recommendation of the City Engineer to the Director of Public Works where it is found that:

A. The permittee has violated any provision of this chapter, or of any agreement entered into with the City related to the permit; or

B. The permittee has failed to pay any required fees, or to post or maintain any bond or insurance required by this chapter; or

C. The encroachment for which the permit was granted adversely affects the safety, capacity or integrity of the City’s right-of-way; or

D. The encroachment is causing the City to incur substantial additional maintenance costs; or

E. Material misrepresentations were made in the application for the permit. (Ord. 1474 § 1 (part), 2014)

12.01.310 Hearing on suspension or revocation of permit.

The Director of Public Works shall give the permittee at least ten days’ written notice of a hearing before the Director of Public Works on the suspension or revocation of a permit issued pursuant to this chapter, setting forth the grounds for such action. The hearing shall be held within thirty days after service of written notice of the hearing. The decision of the Director of Public Works shall be final. (Ord. 1474 § 1 (part), 2014)

12.01.320 Penalties.

A. Pursuant to the City Attorney’s prosecutorial discretion, the City may enforce violations of the provisions of this chapter as criminal, civil or administrative actions.

B. Every violation of this chapter shall be a misdemeanor; provided, however, that where the City Attorney has determined that such action would be in the best interest of justice, the City Attorney may specify in the accusatory pleading or citation that the violation shall be prosecuted as an infraction. Code enforcement officers, as defined by this Code, shall have the power to issue administrative and infraction citations for violations of this chapter.

C. Violations of this chapter may also be punishable as infractions or administrative actions in accordance with Chapter 1.20 and associated fines imposed for violations.

D. In addition to all other remedies set forth in this chapter, any activities operated, conducted or maintained contrary to the provisions of this chapter shall be unlawful and a public nuisance, and the City Attorney may, in the exercise of discretion, in addition to or in lieu of prosecuting a criminal action hereunder, commence an action or actions, proceeding or proceedings, for the abatement, removal and enjoinment thereof, in a manner provided by law. (Ord. 1474 § 1 (part), 2014)

12.01.330 Appeals.

Any person whose permit application or extension is denied or any permittee who is required to abandon facilities may appeal such decision in accordance with this chapter.

A. Appeal of Denial of Permit. Any person aggrieved by the denial of a permit required by this chapter may appeal to the City Manager by submitting a written appeal within fifteen days of the date the application was denied. The City Manager shall thereafter give written notice to the applicant of a hearing to be held within thirty days of receipt of the appeal. The decision by the City Manager on the appeal shall be final.

B. Findings on Appeal. The Public Works Director shall grant the appeal and issue a permit, subject to any appropriate conditions, if all of the following findings are made:

1. That the applicant will be substantially damaged by the refusal to grant the permit as requested;

2. That no other reasonable method of obtaining the desired results is available except as proposed by the applicant;

3. That the granting of the permit will not be materially detrimental to the public interest, safety, health and welfare or injurious to other property;

4. That the project for which the permit is sought will not adversely affect the safety, capacity, or integrity of the City’s right-of-way;

5. That the applicant has substantially complied with the provisions of any prior permits issued to the applicant, and has paid or posted all required fees or bonds, and maintained all required insurance coverage;

6. That the environmental effects are not significant;

7. That an additional maintenance cost to the City is not created by the encroachment. (Ord. 1474 § 1 (part), 2014)