CHAPTER 96
USE OF PUBLIC RIGHT-OF-WAY
Section
96.06 Abandoned and nonconforming crossings
96.09 General requirements for occupation of the public rights-of-way
96.01 PURPOSE.
The purpose of this chapter is to preserve the safety of the inhabitants of the city and to preserve, protect and improve the aesthetic quality of the city by regulating the uses of and construction in the public right-of-way.
(Ord. 10-21; Am. Ord. 14-04)
96.02 DEFINITIONS.
For the purpose of this chapter, the following definitions shall apply:
APPLICANT. Person applying for a right-of-way use permit.
ARTERIAL ROADWAY. A high capacity urban road where the primary function is to deliver traffic between urban centers and freeways at the highest level of service possible.
BARRICADE(S). Any MUTCD approved device within the public right-of-way that impedes the traveling public, either vehicular or pedestrian.
BARRICADING. The placement of barricades as required by the MUTCD or to delineate activities such as the placement of construction dumpsters/drop boxes, piles of gravel/landscape materials, placement of storage containers, etc.
CITY. The City of Rio Rancho, New Mexico.
CITY ENGINEER. The chief administrative engineer of the city or that engineer’s designee.
COLLECTOR ROADWAY. A moderate capacity urban road that moves traffic from lower volume residential roads to arterial roads.
DIRECTIONAL DRILLING. Horizontal directional rotary drilling process.
EASEMENT. An acquired or granted right of use which one person may have in the land of another.
EMERGENCY REPAIR. The repair, restoration, or replacement of an existing structure or infrastructure made necessary because of a sudden unexpected event which has created a condition which is an immediate and continuing threat to the safety of property or persons, including loss of any public utility service.
EXCAVATION. Any hole, trench, ditch or depression which penetrates through or under paved or unpaved surface resulting from the removal by a person of pavement, dirt, or other material. EXCAVATION shall include removal of concrete, removal of asphalt, and grading or blading.
HOLE HOG. Horizontal pneumatic nonguided drilling process.
INFRASTRUCTURE. Physical features, including overhead and underground utilities, located within the public right-of-way used primarily for the benefit and enjoyment of the general public.
JACKING. Horizontal semi guided tunneling process.
MUTCD. Manual on Uniform Traffic Control Devices, latest edition.
PAVEMENT. Any improved traveling surface for vehicular, bicycle, or pedestrian traffic; including asphalt, portland cement concrete, brick, masonry, or other man-made materials.
PERMIT. The revocable written authorization from the city to use, work in, or otherwise occupy public right-of-way; detailing the specific time, place, and other restrictions for the allowed use.
PERMITTEE. A person with a valid, approved right-of-way use permit who is doing work pursuant to that permit.
PERSON. Any individual, estate, trust, receiver, association, club, corporation, company, firm, utility or other entity.
POTHOLE. A vertical nondestructive excavation for the intent of verifying the location of underground infrastructure.
RIGHT-OF-WAY. The total area of land deeded, reserved by plat, or otherwise acquired by the city, primarily for the use of the public for the movement of people, goods, and vehicles. For the purpose of this chapter, city drainage or utility easements, and other city-owned easements, such as maintenance and service roads serving channels or arroyos, are also included.
TRENCHLESS EXCAVATION. Utility line installation, replacement, or rehabilitation through the use of boring, jacking, horizontal drilling or tunneling.
Technical terms not defined herein shall have the meaning given them in the MUTCD.
(Ord. 10-21; Am. Ord. 14-04)
96.03 REQUIREMENTS.
(A) Any person proposing to work in the right-of-way shall obtain a right-of-way use permit from the city.
(1) For the purposes of this chapter work in the right-of-way shall include excavation, trenchless excavation or any activity which might reasonably require barricading. Additionally, activities adjacent to the right-of-way which could reasonably be expected to encroach into the right-of-way, such as the storage of spoils from an excavation or parking of vehicles, or to otherwise affect the flow of traffic by causing visual distraction, such as unusual or large equipment or large groups of people, are also included.
(2) Each person must obtain their own permit and have their own insurance and bonding. A subcontractor may not work under the general contractor’s permit.
(3) Work included within a city approved subdivision, prior to public access being granted to the subdivision, does not require a right-of-way use permit.
(B) The permit application form and submittal requirements shall be in such form as prescribed by the Public Works Department for publicly funded capital projects, and by the Development Service Department for other work.
(C) All work shall conform to federal, state and city ordinances, codes, design criteria and standards. In the case of conflicting requirements, the most stringent shall apply.
(D) The permittee shall be responsible for the protection of the public as follows:
(1) Appropriate traffic control, per the MUTCD, shall be utilized during the duration of the permit.
(a) Traffic control plans shall be included with all permit submittals.
(b) Traffic control plans shall be professionally produced utilizing appropriate computer software. Generic plans or hand drawn plans are not acceptable.
(c) Traffic control plans shall be designed and drawn, using MUTCD standards, by a trained/certified person. Said person shall have a bona fide business presence in the greater Albuquerque/Rio Rancho metropolitan area, except as may otherwise be required by federal law (for projects funded by federal grants), and shall be certified by a training agency normally engaged in the business of traffic control training.
(d) The city may require that revisions be made to proposed routes in order to cause as little inconvenience to the traveling public as possible.
(2) Excavations shall not be left open at the end of a shift unless continuous shifts are planned.
(a) Backfill, steel plate, security fencing and other safety options may be considered on a case-by-case basis by the city.
(b) Barricades, warning tape and plastic fence are not acceptable alternatives.
(3) Barricades shall be placed per the approved traffic control plan, by a certified traffic control technician.
(a) Barricades shall not be placed on sidewalks, pedestrian or bike paths, or dedicated bike lanes unless said pathways are permitted to be closed.
(b) Barricades, including supports, shall be moved outside the clear zone when not in use.
(c) Inspection, preparation of shop drawings and record drawings, and reporting procedures shall be in accordance with the Department of Public Works procedures, the MUTCD and New Mexico Department of Transportation Standard Specifications for Highway and Bridge Construction.
(d) The city will inspect barricading for compliance with approved traffic control plans as it deems necessary.
(E) All flaggers shall be trained and certified by a training agency normally engaged in the business of flagger training. Flaggers must show certification cards on request. Approved safety wear is required.
(F) The permittee shall be responsible for the utility location service, surface (asphalt, concrete, other) cut, excavation, backfill, compaction, surface replacement, testing, any necessary remedial work, and materials incorporated in the work.
(G) The applicant shall provide a $10,000 bond and proof of insurance prior to approval of a right-of-way use permit. The purpose of this bond shall be to assure successful completion of the work required for the installation of the facility, should the applicant fail to comply with the plans and specifications of the permit. The city may also use this bond to correct any damage to existing infrastructure that is caused by the applicant.
(1) The bond may be written for a single event, a specific duration or it may be evergreen.
(2) The city reserves the right to request additional bonding should it be determined that the amount of the work or risk exceeds the capacity of the bond.
(3) The bond shall be returned to the permittee upon successful completion of the work, as determined by the city.
(4) This requirement is not in addition to the bonding/insurance requirements for a city capital improvement project.
(H) Work hours shall be 9:00 a.m. to 3:00 p.m. on arterial classified roads and 7:00 a.m. to 5:00 p.m. on residential or collector classified roads, inclusive of setup and teardown of traffic control devices.
(1) The city may authorize alternative work hours, if the scope of the work is such that the right-of-way cannot be reopened safely.
(2) The applicant shall request the city’s determination on alternative work hours with the initial submission of the permit.
(3) The city may require alternate hours, including nights or weekends, for operations that unduly disrupt traffic flows or represent potential safety hazards.
(I) As city practice, roads less than five years old shall not be cut, except for the repair of leaking wet utilities buried under the roadway. A list of roads which cannot be cut may be obtained from the City Engineer. The City Manager may provide a variance to this practice.
(J) The permittee shall maintain the work site in a clean and orderly manner. All debris, rubbish and excess material shall be removed from the right-of-way at the completion of each workday.
(K) The permittee shall notify the city immediately upon completion of the work.
(L) The city will provide any necessary inspections, during normal business hours, at no cost to the permittee. Should the permittee request inspections outside normal business hours, or should the city determine that such inspections are necessary to ensure public safety, the permittee will be responsible for paying the inspection cost, including overtime costs.
(M) Except as otherwise expressly provided herein, all costs of complying with this chapter shall be borne by the applicant/permittee.
(Ord. 10-21; Am. Ord. 14-04)
96.04 SPECIFIC CIRCUMSTANCES.
Without limiting the generality of the foregoing, the following special circumstances require right-of-way use permits. The absence of mention in this section does not exempt an activity from the requirement to obtain a right-of-way use permit.
(A) Right-of-way crossing.
(1) Crossings shall not unreasonably interfere with or unduly impair the proper and safe use of the right-of-way or adjacent properties.
(2) If a crossing is being proposed in conjunction with the construction of a new building or the remodel or renovation of an existing building, approval for the crossing shall be obtained prior to the city’s issuance of the building permit. The right-of-way permit must be obtained prior to starting construction of the crossing.
(B) Curb cuts. If the proposed crossing includes a curb cut, the following shall apply:
(1) Residential areas.
(a) The minimum width of curb cuts shall be 12 feet and the maximum width shall be 36 feet.
(b) A minimum of 22 feet of standing curb must remain between any two curb cuts on the same lot or single parcel of land or if more than one lot or parcel of land is being put to a single land use, then the requirement shall apply to the land use.
(c) No double or circle drives shall be installed or maintained unless the property shall have a minimum of 60 feet frontage on the street affected thereby.
(d) No curb cuts shall be closer than two and one-half feet from side property lines.
(e) Corner property curb cuts shall be no closer to the intersecting street than either:
(i) Twenty-five feet from the curb face of the intersecting street or extension thereof; or
(ii) Ten feet from the property line of the intersecting street.
(f) No dual frontage access (access to more than one street from a residential lot) shall be allowed.
(g) No curb cuts shall be allowed as a secondary access from arterial roadways and will need approval by the city for collector roadways.
(2) In all light traffic commercial areas, which shall include all office building or other commercial buildings not more than two stories in height, the gutter line width of curb cuts shall be a minimum of 12 feet and a maximum of 36 feet not including radii. All other requirements shall be the same as in residential areas.
(3) In all heavy traffic commercial areas which include, but are not limited to, all drive-in type establishments, the gutter line width of curb cuts shall be a minimum of 20 feet and a maximum of 40 feet in width, not including radii, as justified after a complete study of traffic volume, pedestrian volume, one-way streets, and type of business making request. All other requirements shall be the same as in residential areas.
(4) When conformance to the standards as set forth in this subsection would cause harm to the community or exceptional and undue hardship to any person, the city may vary design standards to the extent that substantial justice may be done. However, the relief may not be granted if it is detrimental to the public good or impairs the intent and purpose of this chapter or the desirable general development of the community. Any modification thus granted shall be entered in the records of the Development Services Department setting forth the reasons which justified the modification.
(C) Emergency repair work. If the applicant calls New Mexico One-Call between 8:00 a.m. and 5:00 p.m., Monday through Friday (except city holidays), the right-of-way use permit application and associated traffic control plan must be submitted to the city prior to the start of work. For emergency repairs that require notification to New Mexico One-Call at any other time, the right-of-way permit application is due to the city by noon the following business day.
(D) Persons who use the right-of-way for short duration operations, including but not limited to: landscaping/landscape maintenance, lifting with crane or boom truck, concrete delivery, concrete cutting, asphalt repair, utility repair, and utility locators using destructive methods, must obtain right-of-way use permits. The level of complexity required for traffic control will be commensurate with the duration of work and location of work as defined in the MUTCD.
(E) Builders shall obtain right-of-way use permits for placement of construction dumpsters/drop boxes in the right-of-way.
(F) Heavy haulers, persons proposing to drive non-street-legal construction equipment, and persons proposing to haul spoils, rock, debris, fill dirt or the like to or from an excavation or construction site shall obtain a right-of-way use permit. The city may dictate the haul route and the hours of operation for the haul.
(1) All costs associated with the haul, including moving and reinstalling existing structures and infrastructure shall be borne by the applicant.
(2) Water wagons and scrapers are prohibited from being driven on paved roads.
(G) Persons requesting special event permits pursuant to Section 154.83, R.O. 2003, must also obtain right-of-way use permits if their events affect the right-of-way. Satisfying the insurance and bonding requirements for the special event permit shall not relieve the applicant from meeting the requirements of this chapter.
(H) Buried utilities.
(1) The placement of buried utilities within the right-of-way shall be approved by the city prior to installation.
(2) Non-city-owned utilities installed parallel to a roadway shall be located in the public utility easement.
(3) Buried utilities shall cross the roadway at an angle of 90 degrees to the roadway centerline.
(4) Barrier devices shall be installed where necessary to protect surface components and the traveling public.
(5) Where buried facility requires the removal or replacement of existing curbs, gutters or pavement surfaces, the same shall be replaced in accordance with the plans and specifications accompanying and made a part of the permit application.
(6) The city may require that the utility be installed using boring or jacking methods. This requirement shall be based on considerations such as the type of roadway, traffic conditions, length of construction time, existing utilities or other conditions as relevant.
(I) Persons proposing to install culverts or make other storm water management revisions in the right-of-way must obtain both the city’s approval for the work and a right-of-way use permit.
(Ord. 10-21; Am. Ord. 14-04)
96.05 RESTORATION.
(A) Any damage to existing infrastructure, landscape or structures within the right-of-way or properties adjoining the work shall be repaired to city standards by the applicant. This includes pavement damaged by dumpsters or construction drop boxes.
(B) Work areas, including adjacent areas that were cleared/grubbed or damaged shall be stabilized and reseeded within 14 calendar days after the permit completion date.
(C) All excavations within the right-of-way shall be backfilled with consecutive lifts not exceeding eight inches of loose material and shall be compacted to 95% of maximum density, plus two percentage points of optimum moisture content and shall be tested in accordance with ASTM D-1557.
(D) Pavement surfaces shall be tested in accordance with applicable testing methods based on the type of material to be placed. Whenever a pavement cut is required, pavement shall be cut to a neat true line. Width of pavement cut shall be sufficient to remove any broken or cracked pavement and wide enough to allow for the equipment required to obtain the required compaction. Edges of pavement cuts for asphalt concrete surfaces shall receive an application of tack coat prior to placing the new pavement. All asphalt patches shall match existing road sections, including base depth and material.
(E) Sidewalks, curbs gutters or combination curbs and gutters shall be removed to nearest joint. All concrete used to replace curbs and gutters shall obtain a minimum compression strength of 3,000 p.s.i. at 28 days. Curbs and gutters shall be replaced to conform to the same shape, size and continuous gradient as existing curbs and gutters.
(F) Testing.
(1) The permittee shall submit all test results to the city within 14 calendar days of the date of completion of the test.
(2) Right-of-way use permits will not be issued to persons who are delinquent in providing test results.
(3) If test results show that the work was not compliant with city standards, the applicant shall repair and retest the work at no cost to the city.
(G) The permittee shall warranty all restoration work to the city for a period of one year from completion and acceptance by the city.
(Ord. 10-21; Am. Ord. 14-04)
96.06 ABANDONED AND NONCONFORMING CROSSINGS.
(A) If any utility crossing is clearly abandoned or no longer used for its intended purpose, any permit heretofore granted for the use of the crossing as such shall be subject to revocation by the city after 30 days’ written notice of the proposed revocation has been given to the owner of the utility crossing the right-of-way, if the identity of the owner can reasonably be ascertained.
(B) It shall be sufficient notice under the provisions of this section to send such notices by certified or registered mail.
(C) The permit for any curb cut on a designated thoroughfare which is determined by the city to constitute a traffic hazard, and which becomes nonconforming upon amendment of this chapter, shall be subject to revocation upon 30 days’ prior written notice to the owner(s) of the abutting properties as provided in subsection (B) of this section, to the extent the identity of such owner(s) can reasonably be ascertained.
(D) In the event the city has revoked any permit for a utility crossing under the provisions of this section, the subject crossing shall be removed by and at the expense of the owner of the utility and the right-of-way restored to current city standards. The removal and restoration shall be completed within 60 days after the notice provided for in this section has been given.
(E) In the event the city has revoked any permit for a curb cut under the provisions of this section, the subject curb cut shall be brought into compliance with current requirements or removed, by and at the expense of the owner of the property benefited by the curb cut and to which the curb cut is appurtenant, and the right-of-way restored to current city standards. The removal and restoration shall be completed within 60 days after the notice provided for in this section has been given.
(F) If conformance is not attained, or the removal and restoration required by this section have not been completed, within the required time, the city may perform the necessary removal and restoration at the cost of the person responsible for the same (the utility or property owner, as the case may be). The city may then revoke or refuse to process future right-of-way permit requests by such owner until such time the costs associated with the removal and restoration are reimbursed in full to the city.
(Ord. 10-21; Am. Ord. 14-04)
96.07 VIOLATIONS.
Whenever the city shall find probable cause to believe violation of any of the provisions of this chapter exists, the city shall notify the person responsible for the alleged violation in writing and shall order the necessary corrections to be made.
(A) The city shall notify any person found to be in violation with this chapter of the scope of violation, the provisions violated, the date of violation (if known), and the required correction.
(1) Said notice shall be in writing and may be hand delivered, faxed or e-mailed to the applicant.
(2) Should that person fail to correct the violation, written notice of any associated fine shall also be hand delivered, faxed or e-mailed to the person.
(3) All violations shall be corrected and all fines incurred must be paid prior to the city’s issuance of another right-of-way use permit to such person.
(B) Corrective actions.
(1) Failure to obtain a right-of-way use permit, failure to comply with an approved right-of-way use permit including compliance with traffic control plan, failure to comply with excavation or trench safety requirements or any other violation that creates an imminent public safety hazard shall be corrected immediately, and all work shall stop, and necessary safety precautions shall be taken until the violation is corrected. Failure to correct the violation by the end of the date of the notice of violation shall justify the issuance of a fine.
(2) Any other violation of nonconformance that does not constitute, in the determination of the city, an imminent public safety hazard, shall be corrected within 30 days of issuance of the notice of violation.
(Ord. 10-21; Am. Ord. 14-04)
96.08 FEES.
(A) All applicants and permittees subject to this chapter shall pay permit fees and be subject to fines if they violate the requirements of this chapter, except as provided below.
(1) City projects are exempt from paying permit fees, and restoration fees imposed by this chapter.
(2) Both the applicant/permittee and the person responsible for their traffic control shall be equally responsible for complying with this chapter and both shall be subject to fines in case of violation.
(3) Barricading fees shall be calculated on the area of closure required by the MUTCD.
(4) The maximum allowable lane drop per permit is 1,600 feet. The maximum allowable excavation length per permit is 660 feet.
(5) Restoration fee area shall be calculated in square yards, as follows: Length of excavation in feet parallel to the centerline of the street, plus 30 feet, multiplied by the pavement width of the street in feet, divided by nine, and multiplied by $3.15.
(B) The following fees shall apply to right-of-way use permits:
(1) Any work on or within state rights-of-way: $50.
(2) Base fee (includes first day of barricading for one lane): $50.
(3) Work on dirt roads, shoulder work on paved roads: Base fee plus $21/day.
(4) Barricading paved roads: Base fee plus $0.01/sq. ft./day of barricaded area. Minimum additional $21/day after first day.
(5) Other barricading fees: See Schedule A.
(6) Excavation of paved roads: Base fee plus barricade fees plus $3.15/sq. yd. restoration fee.
(7) Other excavation fees: See Schedule B.
(8) Fines – Failure to comply with this chapter: $500/day.
|
Schedule A – Other Barricade Fees |
|
|---|---|
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Residential Sidewalk Closures |
$21/month |
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Arterial/Collector Sidewalk Closures |
$21/day |
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Special Events Barricading |
$21/day/event |
|
Arterial/Collector Shoulder/Bike Lane Closures |
$21/day |
|
Bike Path Closure |
$21/day |
|
Drop Box or Construction Dumpster |
$21/month |
|
Schedule B – Other Excavation Fees |
|
|---|---|
|
Curb Cuts |
$12 each |
|
Drive Pads |
$6 each |
|
Curb and Gutter |
$25 for first 100' ($0.25/foot thereafter) |
|
Valley Gutter |
$25 for first 100' ($0.25/foot thereafter) |
|
Sidewalk |
$25 for first 100' ($0.25/foot thereafter) |
|
Sidewalk or Driveway Culvert |
$25 each |
|
ADA Ramp |
$6 each |
|
Other |
|
|
Failure to Comply with this Chapter |
$500/day |
|
Haul Route/Heavy Hauler |
$50 plus actual cost of necessary police support. |
|
City Inspection Overtime |
Actual Cost |
(C) Each applicant is responsible for providing the city with accurate work scope, work zone length and work duration as a basis of fee calculation.
(Ord. 10-21; Am. Ord. 14-04)
96.09 GENERAL REQUIREMENTS FOR OCCUPATION OF THE PUBLIC RIGHTS-OF-WAY.
(A) Occupant defined. An “occupant” is a person who owns or controls permanent facilities in the rights-of-way, or (in the case of an application that will result in occupation of the rights-of-way) a person who will own or control permanent facilities in the rights-of-way.
(B) Generally. Each occupant shall be subject to the requirements of this section, except as may be provided in a valid franchise held by such occupant, or as may be prohibited by law; provided, that an occupant’s obligations may be limited to the duty to indemnify where:
(1) The facilities of an occupant (such occupant being a “secondary occupant”) are wholly within the facilities of another occupant;
(2) The secondary occupant holds no franchise, and has no right to enter into the rights-of-way, or perform any work on its facilities;
(3) The secondary occupant’s property may be treated for all purposes (including notice) as the property of the occupant within whose facilities the secondary occupant is located;
(4) The occupant within whose property the secondary occupant’s property is located accepts full responsibility and liability for complying with all obligations hereunder with respect to the facilities of the secondary occupant and can grant such access to the secondary occupant’s facilities as necessary to permit the city, without liability to the secondary occupant, to perform any action contemplated hereunder;
(5) The secondary occupant accepts joint and several liability for the acts and omissions of the occupant;
(6) The city owes no duties to the secondary occupant; and
(7) The secondary occupant and the occupant responsible for the secondary occupant’s facilities submit a jointly signed writing affirming the provisions hereof.
(C) Code compliance. An occupant shall at all times comply with all applicable provisions of the city code and regulations. Any permit and any franchise authorizing occupancy of the rights-of-way may be terminated for violations of the code and regulations, or the terms of any permit, as provided in this chapter. Costs associated with compliance shall be borne solely by the occupant, and not by city, except as explicitly provided in a franchise or in the code or regulations.
(D) Inspections – Emergencies. The city may inspect an occupant’s property, and may as a condition of the inspection require occupant to disconnect or remove any facilities that may present a hazard to the inspectors. City may direct occupant to correct any noncompliance found. The occupant shall cooperate with all inspections and may be present for any inspection of its facility by the city. Notwithstanding the foregoing, in an emergency or when the facility threatens imminent harm to persons or property, city may, without notice, inspect, support, repair, disable, or remove any elements of the occupant’s facilities and charge occupant the costs therefor, which costs may be recoverable from the bond provided by occupant.
(E) Contact. The occupant shall at all times maintain accurate contact information for all parties responsible for the facility, which shall include a phone number, street mailing address and email address for at least one natural person who may be contacted at all times in the event of an emergency.
(F) Resources. An occupant shall maintain the persons and equipment necessary to allow it to respond immediately to any condition of or relating to the facility presenting a hazard to persons or property.
(G) No guarantee or warranty by city. The city does not guarantee it has the authority necessary to permit an occupant to place or maintain a facility at any site. An occupant is responsible for ensuring it has all authorizations required in order to place a facility at a particular location. Permits improperly granted may be revoked. An occupant assumes all risks associated with placement of facilities in the rights-of-way.
(H) Insurance. Occupant shall obtain and maintain insurance in the amounts and of types, and subject to such conditions, as may be specified by in any franchise, license or permit, or as may be specified by any other lawful means.
(I) Indemnity. The occupant shall defend, indemnify and hold harmless the city, its agents, officers, officials, and employees (1) from any and all damages, liabilities, injuries, losses, costs, and expenses, and from any and all claims, demands, law suits, writs of mandamus, and other actions or proceedings brought against the city or its agents, officers, officials, or employees to challenge, attack, seek to modify, set aside, void or annul the city’s approval of the permit, and (2) from any and all damages, liabilities, injuries, losses, costs, and expenses, and any and all claims, demands, lawsuits, or causes of action and other actions or proceedings of any kind or form, whether for personal injury, death or property damage, arising out of or in connection with any action, or failure to act, of occupant or those acting on its behalf, and arising out of the construction, modification, maintenance or operation of facilities in the rights-of-way, except where instances where indemnification is prohibited by state law.
(J) Performance and removal bond.
(1) Prior to issuance of a permit, the occupant shall file with the city, and shall maintain in good standing for so long as the facility is in place, a performance bond or other surety or form of security for the removal of the facility in the event that the use is abandoned or the occupant’s rights to occupy expire, or are revoked, or are otherwise terminated, or which may be drawn upon to reimburse city for any costs it incurs as a result of the failure of an occupant to comply with its obligations.
(2) The amount of the performance bond will be specified by city and adjusted from time to time, following the valuation guidelines for determination of the amount of the bond required under Division 3. The city may increase or decrease the amount of the security based on the type and extent of the facilities of an occupant.
(3) Where an occupant is required to obtain a bond under Division 3, the city may permit it to satisfy this requirement by a single bond covering construction of the facility and the ongoing occupancy of the rights-of-way.
(K) Adverse impacts on adjacent properties. Occupant shall place and maintain its facilities to avoid undue adverse impacts to adjacent properties and/or uses that may arise from the construction, operation, maintenance, modification, and removal of the facility, and is responsible for restoring property damages to their condition prior to the facility’s installation, except as state law otherwise provides.
(L) Visual burden minimized – Maintenance of facilities. All facilities shall be neatly placed and maintained, with unused facilities removed, so that the burden and visual impact of the facilities in the rights-of-way are minimized. Without limitation, it is not permissible to leave wires hanging, or leave disconnected cabling and conduits on the sides of supporting structures in the rights-of-way.
(M) Noninterference with pedestrian and vehicular traffic. Use by any occupant is secondary to use of the rights-of-way by vehicular and pedestrian traffic, and no facility may be placed in a manner that interferes with such uses. Without limitation, facilities may not be placed or maintained at locations that present a hazard to pedestrians or vehicular traffic (whether physically, or by obstructing sight lines); that violate ADA requirements; or that overhang any street, sidewalk, ramp or driveway unless the city has specifically approved that placement.
(N) Noninterference with public projects. An occupant must promptly move, alter, temporarily relocate, or remove its facilities as necessary for any public project, including, but not limited to, installation of any publicly owned utility, structure or facility, street widening or regrading, widening or installation of sidewalks, or as part of an undergrounding project. If an occupant fails to move, alter, temporarily relocate, or remove its facilities by a time specified by city, city may cause the facilities to be removed, and charge the occupant for the cost thereof, which cost shall be recoverable against the bond.
(O) Movement for others. An occupant must promptly, and at no charge to the city, move, alter, or temporarily relocate its facilities as necessary to permit use of the rights-of-way by other franchised entities or entities holding special permits from city that require such movement, alteration or relocation. An occupant may charge the entity that causes such work to be performed for the cost of the work, except as may otherwise be provided by applicable laws or contract.
(P) No right, title, or interest. Permissions granted by the city to occupy the rights-of-way shall not in any event constitute an easement on or an encumbrance against the public right-of-way. No right, title, or interest in the public right-of-way, or any part thereof, shall vest or accrue in an occupant by reason of issuance of such permissions.
(Q) General maintenance. The site and the facility, including, but not limited to, all landscaping, fencing, and related equipment, must be maintained in a neat and clean manner and in accordance with all approved plans. All graffiti on facilities must be removed at the sole expense of the occupant permittee within 48 hours after notification from the city.
(R) Abandonment and termination. If a facility is not operated for a continuous period of six months, rights to occupy the rights-of-way it may be treated as abandoned and rights to occupy terminated. City will provide notice of abandonment, and unless an occupant contends, in writing submitted within 10 days of the notice, that the facility has not been abandoned, the facility will be deemed abandoned and the rights to occupy terminated. If an occupant contends that the facility has not been abandoned, it must provide all facts on which it relies for that contention as part of the submission to city. The city may then determine whether or not the facility is abandoned. If the facility is deemed or determined to be abandoned, city may direct the facility to be removed, and if not removed city by a time specified by the city, city may remove the facility and charge the occupant the cost therefor, which cost may be charged against the bond.
(S) Records. Any occupant must maintain complete and accurate copies of all applications filed, and all permits and other regulatory approvals issued in connection with the facility, and maintain full and complete records identifying and showing the location of the facilities of occupant in the rights-of-way. Copies of the record shall be promptly provided to city on request, unless production of the records is prohibited by law. Maps of facilities must be provided in a format that will permit the information to be incorporated in the city’s GIS system.
(Ord. 20-06)