Chapter 12.25
EXCAVATION AND USE OF CITY RIGHTS-OF-WAY
Sections:
12.25.030 Encroachment permit.
12.25.040 Permit application process.
12.25.050 Permit approval and issuance.
12.25.070 Permit valid for described and approved work only.
12.25.080 No ownership or vested right created.
12.25.090 Permittee indemnifies City.
12.25.100 Installation notice.
12.25.110 Municipal encroachments.
12.25.140 Construction requirements.
12.25.160 Emergency encroachments.
12.25.170 Mitigation requirements for potentially significant archaeological impacts.
12.25.180 Ongoing use of right-of-way.
12.25.190 Abandonment or removal of equipment from right-of-way.
12.25.200 Damage to existing facilities.
12.25.210 Adherence to rules and regulations.
12.25.230 Pavement preservation.
12.25.010 General rule.
No person shall make cuts, openings or excavations in or under or use the surface of any street, curb, gutter, driveway, sidewalk or any other portion of the public right-of-way or City easement for the installation, repair, removal, construction, operation, or maintenance of any pipe, conduit, duct, tunnel, vault, wire, cable, utility structure, including utility cabinets, or for any other purpose without first complying with all the provisions contained herein, and obtaining all necessary permits and authorizations as set forth in this Code. All requirements and permits issued pursuant to this chapter shall comply with, and be limited by, applicable law, and applied in a nondiscriminatory and competitively neutral manner to the extent required by law. (Ord. 1842 § 3, 4-21-09).
12.25.020 Definitions.
The words and terms used in this chapter shall have the following meanings unless the context clearly indicates otherwise:
(a) “A” Definitions.
(1) “Abandon” or “abandoned equipment” means equipment or facilities not used to provide service for a period of one hundred eighty (180) days, or if the authorization to enter the right-of-way held by permittee is revoked, terminated or abandoned. Equipment or facilities may remain in place even if not being used if the facilities are useful in providing service, even if not actively used, and there is a definite plan for the use of the facilities.
(2) “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.
(b) Reserved for future use.
(c) “C” Definitions.
(1) “City” means the City of Santa Clara, California. Any act that may be taken by the City may be taken by the City Council or any agency, department, agent or other entity now or hereafter authorized to act on the City’s behalf.
(2) “City Council” means the governing body of the City of Santa Clara, California.
(3) “City Engineer” means the City Engineer or his or her designee.
(4) “City Manager” means the City Manager or any person authorized or designated by the City Manager to act on his or her behalf.
(5) “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, but refers to activities affecting rights-of-way and other property subject to the jurisdiction of the City.
(d) “D” Definitions.
(1) “Days” means calendar days, unless otherwise indicated.
(e) “E” Definitions.
(1) “Emergency encroachment” means an encroachment necessitated by the public good, safety, health or welfare by a person with facilities in the right-of-way.
(2) “Encroachment permit” means a permit issued pursuant to and in conformance with this chapter.
(3) “Equipment” means a component of a facility that is wholly or partially located in or under the surface of any street, curb, gutter, driveway, sidewalk or that occupies any other portion of the public way or City easement.
(f) “F” Definitions.
(1) “Facilities” means equipment, public improvements, or property installed in the right-of-way.
(g) Reserved for future use.
(h) Reserved for future use.
(i) Reserved for future use.
(j) Reserved for future use.
(k) Reserved for future use.
(l) Reserved for future use.
(m) Reserved for future use.
(n) Reserved for future use.
(o) Reserved for future use.
(p) “P” Definitions.
(1) “Permittee” means any person seeking and/or that has obtained an encroachment permit pursuant to this chapter.
(2) “Person” is as defined in SCCC 1.05.020. The term does not include the City.
(q) Reserved for future use.
(r) “R” Definitions.
(1) “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, parkway, waterway, easement, or similar property in which the City now or hereafter holds any property interest.
(s) Reserved for future use.
(t) Reserved for future use.
(u) Reserved for future use.
(v) Reserved for future use.
(w) Reserved for future use.
(x) Reserved for future use.
(y) Reserved for future use.
(z) Reserved for future use. (Ord. 1842 § 3, 4-21-09).
12.25.030 Encroachment permit.
An encroachment permit (“permit”) shall be required of any person seeking to use or make cuts, openings or excavations in or under the surface of any street, curb, gutter, driveway, sidewalk or any other portion of the public right-of-way or City easement for the repair, installation, removal, or construction of any pipe, conduit, duct, tunnel, vault, wire, cable, utility structure, utility cabinet, or for any other purpose. (Ord. 1842 § 3, 4-21-09).
12.25.040 Permit application process.
(a) Application Required. All persons desiring or intending to perform any work as above indicated must make an application for the permit at the office of the City Engineer. Such application must include an address (mail, facsimile or electronic) to which all notices pursuant to this chapter shall be sent.
(b) Determination of Existing Underground Installations. Prior to making such application, the permittee shall determine the existing location and depth of all underground facilities that are reasonably feasible to ascertain, such as sanitary sewer, electric, telephone, gas, communications, storm drain, water lines, conduits, manholes, traffic signal wires, conduits, interconnects and detector loops, irrigation systems and other structures situated in the street or adjoining public area where the work is to be performed. If the City’s right-of-way to be used by the permittee has existing facilities placed therein, the permittee shall notify the owner(s) of said facilities of the permittee’s proposed installation. The permittee may be required to pothole and obtain record drawings from the owner(s) of said facilities.
(c) Proposed Work and/or Construction Plans. The application shall be accompanied by plans to an appropriate scale showing the layout, location, and depth of all proposed construction, topographic layout of existing surface and known underground facilities in the immediate area of construction, construction details of proposed work, restoration work detail and such other information as the City Engineer may reasonably require related to review of the application in accordance with applicable law. Where appropriate, the permittee may make reference to City Standard Details for construction detail. The plans shall bear the signature, seal, and date of signing of a registered civil engineer where required, consistent with the City’s standard practices and/or applicable law.
(d) Completed Application. A completed application must include:
(1) Completed and signed application;
(2) Payment of all applicable fees; and
(3) Proposed work and/or construction plans that conform to City Standards: Design Criteria, Standard Specifications, Standard Details, and special permit conditions that apply, as reasonably determined by the City Engineer. (Ord. 1842 § 3, 4-21-09).
12.25.050 Permit approval and issuance.
When an application is deemed complete by the City Engineer in compliance with all requirements of this chapter and any other applicable law, a permit shall be denied or approved and issued. (Ord. 1842 § 3, 4-21-09).
12.25.060 Permit conditions.
All permittees shall abide by the following conditions:
(a) Have proof of a valid City business license;
(b) Have proof of other permits as required from agencies that are impacted by proposed construction and/or equipment installation. Some agencies that may be impacted include, but are not limited to, State of California, County of Santa Clara, City of Santa Clara Planning and Inspection Department, City and County of San Francisco (Hetch-Hetchy), Santa Clara Valley Water District, Union Pacific Railroad Co., and Peninsula Corridor Joint Powers Board. Proof that other required permits have been obtained shall be provided prior to issuance of the permit;
(c) Cooperate with the City and all other persons subject to this chapter in minimizing the impact on city streets where reasonably possible by utilizing common trenches and other techniques that will achieve this goal, and equitably share the costs of installation when two or more entities propose equipment in the same street, or when the City is planning an underground project. Persons subject to this chapter shall be required to equitably share in costs reasonably associated with their work;
(d) Underground equipment within the public right-of-way where such undergrounding may lawfully be required. Equipment for undergrounding may include, but is not limited to, splice boxes, manholes, pull boxes, and connection panels;
(e) Keep a copy of the permit and the approved set of plans on the job site at all times during the prosecution of the work;
(f) Maintain adequate insurance during construction and installation of the equipment. Insurance coverage shall protect the City from claims for injuries to persons and property which in any way relate to, arise from, or are connected with the installation or use of the permit and/or equipment;
(g) Safeguard the work site at all times to protect the public health, safety, and welfare;
(h) Notify the City a minimum of one full City working day prior to construction and any inspection;
(i) Provide adequate traffic controls where required that conform to the most recent edition of the State of California Manual on Uniform Traffic Control Devices;
(j) Employ best management practices to prevent pollutants from entering the storm drain system and to comply with the latest statutory stormwater management requirements;
(k) Store all construction materials and equipment on site or in a designated area approved by the City Engineer. (Ord. 1842 § 3, 4-21-09).
12.25.070 Permit valid for described and approved work only.
The permit issued shall not be valid for any work other than that described in the permit and as shown on the plans filed by the permittee at the time the permit is granted. By signing the permit application, the permittee acknowledges that decisions of the City Engineer related to the permit shall be final. (Ord. 1842 § 3, 4-21-09).
12.25.080 No ownership or vested right created.
No use of any right-of-way or any other interest or property pursuant to this chapter shall create or vest in the permittee any ownership or other interest in the right-of-way, streets or other property or interest of the City. (Ord. 1842 § 3, 4-21-09).
12.25.090 Permittee indemnifies City.
The permittee shall be liable for, and 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 from the City’s negligence, willful misconduct or criminal acts 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 Attorney for the liability assumed by the permittee. The City shall provide reasonable notice to the permittee upon receipt of any claim of loss, action or demand and cooperate with the permittee’s defense against such claim, including providing reasonable access to information, evidence, and witnesses necessary to defend against such claim. The permittee does not waive its right to pursue any or all available legal remedies to challenge the validity or legality of any applicable federal, State or local law by its work under this chapter. (Ord. 1842 § 3, 4-21-09).
12.25.100 Installation notice.
The permittee may be required to provide mail or hand-delivered notice of installation of any above-ground equipment to nearby property owners as directed by the City Engineer and/or the Director of Planning and Inspection. (Ord. 1842 § 3, 4-21-09).
12.25.110 Municipal encroachments.
Encroachments made by the municipal utility departments of the City of Santa Clara shall be subject to the same terms and conditions as any other person, with the exception that the method of paying the prescribed fees will be by internal voucher transfers and separate insurance will not be required. (Ord. 1842 § 3, 4-21-09).
12.25.120 Improvement bonds.
The City Engineer may require faithful performance bonds and/or labor and material bonds, each in a reasonable amount based on the project size and/or scope, as reasonably determined by the City Engineer. Any bond amount will be based on an estimate provided by the permittee and approved by the City Engineer. (Ord. 1842 § 3, 4-21-09).
12.25.130 Fees.
(a) Processing Fee. A fee for processing the application will be charged for each permit application unless provided otherwise by an agreement with the City under a public works contract. The processing fee will be charged at the current rate adopted by the City.
(b) Engineering and Inspection Fee. An engineering and inspection fee shall be charged for each permit to recover the City’s cost of engineering review and field inspection to assure that the construction provided under the permit meets City standards and requirements. The engineering and inspection fee shall be charged at the current rate adopted by the City.
(c) Field Marking Fee. A fee for field marking the locations of sanitary sewer and storm drain pipelines in the immediate vicinity of the proposed excavation shall be charged. The field marking fee will be charged at the current rate adopted by the City.
(d) Slurry Seal Fee. A fee for slurry sealing new asphaltic pavement shall be charged. The slurry sealing fee will be charged at the current rate adopted by the City.
(e) Record Drawing Archiving Fee. A fee for record drawing archiving shall be charged for those record drawings required and kept on file by the City Engineer. The record drawing archiving fee will be charged at the current rate adopted by the City.
(f) This section shall not prevent the City from properly adopting new or different fees from time to time for services related to this chapter. (Ord. 1842 § 3, 4-21-09).
12.25.140 Construction requirements.
(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: Design Criteria, Standard Specifications, Standard Details, and any special provisions relating thereto.
(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.
(c) Inspection and Approval. All work shall be subject to monitoring, inspection, and approval by the City Engineer.
(d) Schedule of Work. The permittee shall notify the City Engineer at least one full City working day prior to start of any work. The permittee shall keep the City Engineer informed of the schedule and time of the work being performed pursuant to the permit, and any subsequent changes or interruptions to that schedule. Should the work stop for more than two full consecutive City working days, the permittee shall again notify the City Engineer 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.
(e) Working Time Restriction. The City Engineer may specify the days or times when work occurs in order to coordinate with traffic on thoroughfares or other work occurring in the area. Hours of work will be between 7:00 AM and 5:00 PM on City workdays unless otherwise approved by the City Engineer.
(f) Protection of Traffic. The permittee shall place and maintain adequate signs, barricades and warning lights 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 on Uniform Traffic Control Devices.
(g) Making Repairs. Each permittee shall be responsible for restoring to its former condition as nearly as may be 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 and the City elects to make the repairs, 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 which occur within one year from date of acceptance of work by the City.
(h) Notification of Work Completion. A permittee shall provide the City Engineer a notice of completion immediately upon completion of the work authorized by each permit.
(i) Acceptance of Work by City. The City Engineer shall accept the work as completed only after the permittee has fulfilled all obligations under this chapter and the permit, cleaned the site of all debris and left the site in a neat and workmanlike condition. The City Engineer shall indicate acceptance by endorsing the permit in the space provided. (Ord. 1842 § 3, 4-21-09).
12.25.150 Extending permit.
The City Engineer 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 approved construction plans since the initial issuance of the permit. The permittee shall request a time extension to a permit within seven days from the permit’s expiration date. (Ord. 1842 § 3, 4-21-09).
12.25.160 Emergency encroachments.
(a) When City Engineer Office Is Open. Any person performing an emergency encroachment during normal City business hours shall notify the City Engineer by telephone within one hour of commencement of said emergency work. The permittee shall relay the nature and location of the emergency and make any subsequent written permit application the next business day.
(b) When City Engineer Office Is Closed. Any person performing an emergency encroachment when the office of the City Engineer is closed shall apply for a permit within four hours from the start of the next business day. (Ord. 1842 § 3, 4-21-09).
12.25.170 Mitigation requirements for potentially significant archaeological impacts.
(a) All permittees shall comply with the appropriate Planning and Inspection Department conditions for potentially significant archaeological impacts, as adopted by the City Council or as subsequently amended and approved by the Director of Planning and Inspection.
(b) If it is determined by the City or discovered during site work that the site contains archaeological resources, the permittee shall be required to retain a qualified archaeologist to monitor all earth-moving activities. Monitoring shall include, but is not limited to, review and oversight of all subsurface work, allowing for the careful examination of vertical and horizontal soil relationships to define positive archaeological finds (prehistoric and/or historic). The archaeologist must be pre-approved by the Director of Planning and Inspection. The Planning Division must also be notified at least forty-eight (48) hours prior to any grading or other subsurface work on the site, and the archaeologist must provide a written protocol which stipulates the manner in which the permittee shall comply with the monitoring requirements. The archaeologist must maintain a field log of their time and observations, carefully noting soil conditions.
(c) In the event that cultural resources are encountered, all work within fifty (50) feet of the find shall halt so that the archaeologist can examine the find and document the provenance and nature of the cultural resource (through drawings, photographs, written description, as necessary). The City shall be notified and the significance, if any, of the find shall be evaluated by the archaeologist.
(d) Once a find has been made and deemed to be significant, the archaeologist will then submit a treatment plan to the City. A treatment plan may include, but is not limited to, any of the following:
(1) Planning construction to avoid archaeological sites.
(2) Deeding archaeological sites into permanent conservation easements.
(3) Capping or covering archaeological sites with a layer of soil before building on the sites.
(4) Planning parks, green space, or other open space to incorporate archaeological sites.
(5) Any other appropriate measures as required and approved by the City of Santa Clara.
(e) If Native American remains are discovered, the County Coroner shall be notified immediately pursuant to the California Health and Safety Code. The permittee shall work with the most likely descendants, as identified by the Native American Historical Commission, to ensure that the descendants’ preferences for the treatment of the remains are respected.
(f) The permittee must obtain information from the City prior to beginning work as to whether the site is an archaeologically sensitive area. The City shall in no event pay any expenses related to archaeological resources investigation, mitigation or treatment plans. (Ord. 1842 § 3, 4-21-09).
12.25.180 Ongoing use of right-of-way.
(a) In addition to complying with all relevant requirements for obtaining a permit contained herein, a person owning facilities in, seeking to install facilities in, or using right-of-way shall comply with all requirements of this section.
(b) The design, construction, installation, operation, maintenance, relocation, and removal of the permittee’s equipment shall be at no expense to the City and shall be subject to the reasonable approval of the City Engineer to maintain the integrity and effective use of the public rights-of-way and to protect the public health, safety and welfare.
(c) The permittee shall remove or relocate any installation that is in conflict vertically and/or horizontally with any currently planned or future City installation that is a proper governmental use of the right-of-way. If the permittee does not complete said relocation within one hundred eighty (180) days, the City shall have equipment removed 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 City Engineer.
(d) 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:
(1) Existing facilities were not properly installed;
(2) Existing facilities were installed without obtaining necessary authorizations; or
(3) Federal, State, or local law requires relocation.
(e) 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.
(f) Equipment 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 the equipment in good repair and in a safe condition to the reasonable satisfaction of the City Engineer.
(g) The permittee shall identify the equipment installed in each right-of-way by means of an identification method as directed by the City Engineer. Such identification shall be detectable from ground level without opening the street. The permittee shall provide the City a telephone contact number, staffed twenty-four (24) hours per day, seven days per week, to enable the City to report any concerns regarding the equipment, 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 (72) 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 equipment in the right-of-way at no cost to the City.
(h) The permittee shall comply with all applicable federal, State, or local laws, rules and regulations for clearances and siting standards, including but not limited to City noise ordinances; City/Silicon Valley Power Installation of Underground Substructures by Developers (UG 1000); and City Standards: Design Criteria, Standard Specifications, and Standard Details. Above-ground or surface-mounted facilities placed pursuant to this chapter shall where reasonably feasible:
(1) Be no larger than is reasonably necessary to contain and protect the required equipment. In the event any above-ground or surface-mounted facility exceeds seventy-two (72) inches high, fifty-nine (59) inches wide and twenty-seven (27) inches deep, an environmental review under CEQA and any other applicable laws must occur prior to permit issuance;
(2) Not obstruct pedestrians and shall comply with the Americans with Disabilities Act and access-related regulations, including maintaining a minimum of four feet of pedestrian clearance (free of all obstacles for a clear path of travel, unobstructed pedestrian walkway) shall be maintained at all times, even when facility parts (such as doors) are open or in use;
(3) Be set back a minimum of two feet from the face of the curb;
(4) Not intrude into the vehicle visibility obstruction area at street corners or create vehicle driveway obstructions;
(5) Not be placed at street intersection corners or at the end of T-intersections reserved for traffic signal facilities;
(6) Not obstruct pedestrian, technician, or vehicle view of any traffic sign or signal;
(7) 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;
(8) Be set back a minimum of five feet from any City utility facility, traffic signal facility, driveway, curb ramp, or blue zone parking space, except as noted herein;
(9) Be set back 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;
(10) Be located within six feet of the public right-of-way if placement on the right-of-way is prohibitive;
(11) Be set back a minimum of eight feet from any fire escape and/or fire exit;
(12) Not be placed on the property of, or immediately adjacent to, any designated local, state or national register historical landmark or structure;
(13) Not violate any City Code or policy related to City-owned trees or heritage trees, including but not limited to the provisions related to alteration, removal, or trenching affecting any City-owned tree;
(14) Be screened by landscaping where appropriate for the location. The 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. Replacement or new landscaping shall meet the following criteria:
(A) Minimum fifteen (15) gallon for new street tree;
(B) Minimum five gallon for shrubs;
(C) Minimum twelve (12) inches on center for groundcovers;
(D) Minimum twenty-four (24) or thirty-six (36) inch box for replacement of mature trees;
(15) Be painted or coated to blend in with the surrounding environment; graffiti-proof coating that also blends shall be used if feasible;
(16) Not emit excessive heat or create any safety threat or harm to the public;
(17) Not unreasonably affect the aesthetic character of the location or neighborhood of its placement;
(18) Not be located within a three hundred (300) foot radius of more than three other above-ground utility boxes. In the event of this situation, the permittee shall co-locate the proposed above-ground utility box with an existing utility box, underground the proposed utility box, or be subject to additional environmental review.
(i) A permittee shall not install attachments to bridges and overpasses, except in special situations when approved by the City Engineer.
(j) A permittee shall generally be restricted to installing equipment to a part of the right-of-way that is within ten feet of the lip of gutter and on the side of the street opposite the water main, unless directed otherwise by the City Engineer. No facilities may be attached to any structure owned by the City, or maintained in place, without a valid contract therefor with the City.
(k) A permittee shall maintain detailed maps and record drawings of its facilities in the right-of-way, which shall be furnished to the City free of charge within twenty (20) calendar days of any request. The detailed maps and record drawings shall show the location, size, depth, description, and nature of all facilities as constructed, as well as the identification of any powered facilities, certified to within one foot of the actual location and depth.
(l) A permittee shall pothole its subsurface equipment within fifteen (15) days of receipt of a written request from the City or third party to do so, unless the permittee can certify within one foot the location and depth of its facilities where potholing is requested. The reasonable cost of the potholing shall be borne by any requesting third party. The City shall in no event pay any pothole expenses.
(m) 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 equipment 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. Any change in State law shall not negate the duty of permittee under this subsection.
(n) A permittee shall inform the City in writing of any material change in contact information. Such written notice shall be provided to the City Engineer within sixty (60) days of the change. (Ord. 1842 § 3, 4-21-09).
12.25.190 Abandonment or removal of equipment from right-of-way.
(a) If a permittee intends to abandon the facilities, the permittee shall either, as determined by the City Engineer, dedicate said equipment to the City for its use or remove said equipment at no cost to the City.
(b) The permittee shall send written notice of abandonment to the City Engineer within thirty (30) days of abandonment, and all equipment shall be removed or dedicated no later than one hundred eighty (180) days of abandonment.
(c) The permittee shall obtain a permit pursuant to this chapter for all facility removal from the right-of-way.
(d) If the City determines the permittee has abandoned its equipment, the City shall provide the permittee with written notice to vacate the right-of-way and dedicate or remove the equipment within one hundred eighty (180) days. Equipment removal shall be at no cost to the City. Within this one hundred eighty day (180) period, the permittee may:
(1) Provide information to the City Engineer explaining that the equipment has not been abandoned and seek the City Engineer’s reconsideration; and/or
(2) Appeal the City Engineer’s decision as to abandonment, as described herein.
(e) If the permittee takes no action within this time period, the City may elect to accept title to such equipment free and clear, or remove the equipment and charge the permittee with all reasonable costs incurred in such removal. Such payment shall be made within thirty (30) days of returning such equipment to the permittee or making such equipment available to the permittee for pickup within city limits.
(f) Appeal of City Engineer Decision as to Abandonment.
(1) Any permittee not in agreement with the City Engineer’s decision as to facility abandonment may appeal to the City Council by filing a notice of appeal with the City Clerk within fifteen (15) days of service by mail of the City Engineer’s notice of abandonment.
(2) The City Council shall fix a time and place within thirty (30) days for the permittee to show why the facilities were not abandoned and/or why the facilities should not be removed, vacated, or dedicated to the City.
(3) The City Clerk shall give notice in writing to the permittee at his/her last-known address by depositing a notice of hearing in the United States mail with postage prepaid.
(4) No later than 12:01 P.M. on the Thursday preceding the hearing, the appealing permittee shall file with the City Clerk a written summary not to exceed five pages in length of the reason(s) the City Engineer’s decision should be amended or overturned. The appealing permittee shall have the burden of demonstrating the error of the City Engineer’s decision. The Council shall render and provide written notice of its decision within forty-five (45) days of the hearing.
(5) The decision of the Council shall be final and conclusive and shall be served upon the appellant in the manner prescribed above for service of notice of hearing.
(6) In no event shall any final determination by the Council exceed the one hundred eighty (180) day notice period for removal, vacation or dedication of the abandoned facilities.
(7) This process shall not preclude any permittee from seeking timely judicial review of the City Council determination.
(g) This section does not apply to persons not entitled to operate within public rights-of-way pursuant to federal, State or local law. Persons operating within rights-of-way under a license agreement shall not have any vested right to remain in the right-of-way and the license may be revoked at any time. (Ord. 1842 § 3, 4-21-09).
12.25.200 Damage to existing facilities.
(a) The permittee is responsible for any damage to City facilities and equipment, including but not limited to pavement, curb and gutters, sidewalk, landscaping, and utilities. The permittee is also responsible for damage to private property. This liability applies to activity related to installation, maintenance, repair, operation, and removal of permittee equipment in right-of-way by the permittee, its employees or agents.
(b) If the equipment owned by the permittee damages any right-of-way, equipment, facilities, or installations owned by the City in any manner, the permittee shall pay the cost of any replacements, repairs or restoration of said right-of-way, equipment, facilities, or installations to the condition such were in prior to the damage.
(c) Any premature deterioration of surface and subsurface improvements, such as pavement or concrete over any trench/excavation or adjacent thereto, or reduction in the life of improvements within or adjacent to the right-of-way as reasonably determined by the City Engineer 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 (30) days of notification by the City Engineer, or a longer period if agreed to in writing by the parties. If the permittee fails to make repairs within the applicable period, the City may have repairs made with the cost being billed to the permittee. If the repair cannot fully reverse the deterioration or loss of life, the City may require the permittee to pay for the damage suffered as a result. (Ord. 1842 § 3, 4-21-09).
12.25.210 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 City Engineer may revoke a permit issued under this chapter upon violation of any of its provisions or the provisions of any permit issued hereunder. (Ord. 1842 § 3, 4-21-09).
12.25.220 Penalties.
(a) Pursuant to the City’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) Each and every violation of this chapter which is deemed an infraction is punishable by:
(1) A fine not exceeding one hundred dollars ($100.00) for the first violation;
(2) A fine not exceeding two hundred dollars ($200.00) for the second violation of the same or similar provision within a one-year period; and
(3) A fine not exceeding five hundred dollars ($500.00) for each additional violation, after the second, of the same or similar provision within a one-year period of the first violation.
(d) Each and every day or any part thereof during which any such violation is committed, continued or allowed shall be a separate offense.
(e) Each and every violation of this chapter which is deemed a misdemeanor is punishable by a penalty of not more than one thousand dollars ($1,000.00) or by imprisonment in the County Jail for a period not exceeding six months or by both penalty and imprisonment.
(f) Any person who violates any provisions of this chapter shall be civilly liable to the City for a sum up to one thousand dollars ($1,000.00) for the first day in which such violation occurs, and for each additional day thereafter.
(g) 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. 1842 § 3, 4-21-09).
12.25.230 Pavement preservation.
(a) Any street that has been resealed shall not thereafter be cut or opened for a period of three years. This time frame shall begin immediately following the resealing work and end on December 31st of the year which is at least three years following the year of completion of the work.
(b) Any street that has been constructed, reconstructed, or resurfaced shall not thereafter be cut or opened for a period of five years. This time frame shall begin immediately following the construction, reconstruction, or resurfacing work and end on December 31st of the year which is at least five years following the year of completion of the work.
(c) The Director of Public Works or City Engineer is granted the discretionary authority to authorize exemptions under the following circumstances:
(1) Emergency encroachments that are immediately necessary to preserve life or property;
(2) Work that is mandated by a county, State or federal agency;
(3) Work necessary to provide utility service for buildings or parcels where no other reasonable means of providing service exists;
(4) Repairs or modifications that are necessary to prevent the interruption of essential utility service;
(5) Other situations deemed by the Director of Public Works or City Engineer to be in the best interest of the general public.
(d) To request an exemption, the permittee shall submit a written request to the Director of Public Works. The request shall include:
(1) The location of the excavation;
(2) Description of the work to be performed;
(3) The reason(s) the work cannot be deferred;
(4) The reason(s) the work cannot be performed at another location;
(5) The reason(s) it is in the best interest of the general public to excavate the street.
(e) When authorizing an exemption, and for emergency encroachments, the Director of Public Works or City Engineer is granted the discretionary authority to impose conditions determined appropriate by the Director of Public Works or City Engineer to ensure the rapid and complete restoration of the street and the pavement. The Director of Public Works’s or City Engineer’s determination shall be final.
(f) The Director of Public Works or City Engineer is granted the discretionary authority to implement additional policies, practices, procedures, rules, regulations, and standards for excavation and use of right-of-way, as necessary, to ensure street pavements are preserved. (Ord. 1998 § 1, 2-19-19).