Note: Prior history: Prior Code §§ 3244,
3247 and 7111—7114 and Ords. 1535, 1779, 1987 and 2190.
This chapter is adopted for the purpose of regulating excavations
and encroachments on, over, or under public rights-of-way or public
service easements.
(Ord. 2229 § 2, 2023)
Unless the contrary is stated or clearly appears from the context,
the following definitions will govern the construction of the words
and phrases used in this chapter:
means the public works director, or designee.
means any construction work performed within public rights-of-way
or public service easements; any work other than construction work
performed within a public right-of-way or public service easement
that obstructs, or interferes with the use of, the public right-of-way
or public service easement; and any structure or object that is placed
or installed within a public right-of-way or within a public service
easement in a manner that obstructs or otherwise interferes with the
use of the public right-of-way or public service easement.
means removal of any concrete, asphalt, road, earth, or other,
similar, surface materials covering a public right-of-way or public
service easement.
means any city street, sidewalk, pedestrian path, bike path
or any other "public way," as defined by Streets and Highways Code
Section 18609.
means any public sewer easement, public storm drain easement,
public utility easement or other "public service easement," as defined
in Streets and Highways Code Section 8306.
(Ord. 2229 § 2, 2023)
(a)
Permit Required. Unless otherwise provided by applicable law, it
is unlawful for any person to make any encroachment or excavation
in any public right-of-way or service easement, without first obtaining
a permit issued pursuant to this chapter.
(b)
A permit is not valid until the administrator receives the applicant's
written acceptance in accordance with this chapter.
(c)
During city business hours, persons must immediately notify the administrator
of emergency encroachment work for all repairs performed on existing
infrastructure. Should emergency repair work commence during other
than normal city business hours, the person must notify the administrator
of work performed by nine a.m. on the following business day. An encroachment
permit application must be submitted to the administrator within three
business days.
(Ord. 2229 § 2, 2023)
It is unlawful for any person to place or plant, or cause to
be placed or planted, any tree, shrub or bush in any public right-of-way
or public service easement without obtaining a permit pursuant to
this chapter. In addition to all other conditions of this chapter,
a permit for planting trees will specify the place for planting, the
distance apart, the kind of trees and such other matters specified
by the administrator.
(Ord. 2229 § 2, 2023)
Except as otherwise provided in this chapter, it is unlawful
for any person to drive, drag, propel or move, or cause to be moved
upon any public right-of-way or public service easement, any plow,
harrow or cutting or scratching instrument or any heavy vehicle or
machine liable to break the surface of, or do injury to the public
right-of-way or public service easement.
(Ord. 2229 § 2, 2023)
(a)
Except as otherwise allowed by this chapter, public streets that
were resurfaced with an emulsified asphalt "slurry" or asphalt "cape
seal" within the previous two years or improved with asphalt/concrete
within the previous five years of the proposed excavation may not
be excavated for utilities or for other reasons.
(b)
A permit may be issued to allow a permittee to encroach within a
public street to install utility facilities, or for other purposes,
if such work can be accomplished by boring under the public street
section or by other trenchless technologies. Alternative methods for
such work including, without limitation, relocating utility facilities
to areas other than the public street (for example, under public sidewalks
and/or parkways) will be considered and determined not to be feasible
before a permit may be issued pursuant to this chapter. Any additional
costs for, without limitation, relocating utility facilities outside
of the public street or boring under the public street must be borne
by the permittee.
(c)
Excavation of a public street may be allowed by permit under only
the most unusual circumstances if the administrator determines that
relocation or boring is not feasible. Under such circumstances, the
administrator will require a permittee to meet the city's construction
standards for excavating in recently resurfaced streets, pay all costs
associated with such excavation, and provide such additional security
to ensure the integrity of the recently resurfaced public street as
may be reasonably required by the administrator.
(Ord. 2229 § 2, 2023)
A permit is not required for the following encroachments or
excavations:
(a)
United States mailboxes;
(b)
Poles and facilities of public utilities lawfully using the public
streets of the city;
(c)
Portable and usual garbage and rubbish receptacles when conforming
to and placed in accordance with the rules and regulations of the
city;
(d)
Work required by a valid public works contract between the city and
a contractor;
(e)
An encroachment made pursuant to a subdivision improvement agreement
between the city and a developer;
(f)
Encroachments or excavations related to filming activities where
the person possesses a filming permit issued pursuant to this code;
(g)
Encroachments or excavations authorized by a permit issued pursuant
to this code for parades, athletic events, or public assemblies;
(h)
An encroachment made by adjoining property owner for installing concrete
flat work in a parkway between a public street and sidewalk or for
the purpose of installing concrete flat work behind a public sidewalk,
provided the concrete flat work does not consist of more than twenty-five
percent hardscape within each parkway area, and has otherwise been
approved by the city;
(i)
An encroachment made by a city officer or employee acting within
the course or scope of such officer's or employee's duties or employment;
and
(j)
An encroachment made by the owner or lessee of property adjoining
a public right-of-way within the central commercial zoning district
for a sidewalk café pursuant to a license or permit issued
pursuant to this code authorizing the use of the right-of-way for
such a purpose.
(Ord. 2229 § 2, 2023)
The administrator will administer this chapter, including, without
limitation, acting on all applications for a permit required by this
chapter, and undertaking any of the enforcement actions allowed by
this chapter.
(Ord. 2229 § 2, 2023)
Applications for a permit required by this chapter must be filed
with the administrator, will be in a form and contain the information
prescribed by the administrator and be accompanied by a permit fee
in an amount established by city council resolution.
(Ord. 2229 § 2, 2023)
Where an application is filed for a permit required by this
chapter which would authorize construction or excavation work within
a public right-of-way or public service easement, the applicant must
establish to the satisfaction of the administrator:
(a)
That the applicant possesses a valid contractor's license issued
pursuant to Business and Professions Code Section 7000, et seq. to
perform the kind of work within the public right-of-way or public
service easement to be authorized by the permit; or
(b)
The applicant owns the property adjoining that portion of the public
right-of-way or public service easement in which the work to be authorized
by the permit will be performed, that such work will consist entirely
of repairs to sidewalks, curbs, gutters or driveway, and/or the installation
of landscaping within the parkway strips adjoining such public right-of-way,
and that the work will be performed either entirely by the applicant
or by the applicant in conjunction with unpaid assistants.
(Ord. 2229 § 2, 2023)
Where an applicant seeks a permit for construction or excavation
work within a public right-of-way or public service easement, the
application must include plans and specifications indicating the location,
nature, and extent of the work to be performed within the public right-of-way
or public service easement and establish that such work will conform
to the city's design criteria and improvement standards and/or any
other applicable laws and regulations.
(Ord. 2229 § 2, 2023)
If an application is complete and there are no grounds for denial,
the administrator must approve the application and issue a permit
subject to all of the conditions provided for in this chapter upon
the applicant providing proof of insurance and paying the permit fee.
(Ord. 2229 § 2, 2023)
(a)
Grounds for Denial. The administrator must deny an application for
a permit required by this chapter if the administrator determines
that:
(1)
The encroachment or excavation proposed by the application is for
the construction or installation of improvements or facilities within
a public right-of-way or public service easement that are not an authorized
use of a public right-of-way or public service easement;
(2)
The encroachment or excavation, if implemented in the proposed manner,
would unreasonably interfere with use of public or private property
adjacent to or contiguous with the public right-of-way or public service
easement in which an encroachment or excavation is planned; or
(3)
The encroachment or excavation, if implemented in the proposed manner,
would threaten public health, safety, or welfare.
(b)
Notice of Denial. When the administrator denies an application, the
administrator must promptly serve notice on the applicant. That notice
will state the reasons for denial and set forth the applicant's right
to apply for administrative review and appeal in the manner provided
by this chapter.
(Ord. 2229 § 2, 2023)
As an additional condition for an encroachment permit, the permittee
must undertake and carry out the encroachment or excavation authorized
by such permit in accordance with the provisions of the California
Manual of Traffic Controls for Construction and Maintenance Work Zones
as published by the California Department of Transportation and/or
any additions or modifications adopted by the city.
(Ord. 2229 § 2, 2023)
(a)
Unless otherwise provided, no encroachment permit may be issued unless
and until an applicant obtains comprehensive general liability insurance
policy that complies with the city's insurance requirements as established
by city council resolution.
(b)
Security Requirements. Except as provided by this chapter, a permit
cannot be issued pursuant to this chapter unless and until the permittee
obtains and provides the city a surety bond or other security guaranteeing
permittee's performance of all duties and obligations under such permit
including, in particular, the duty and obligation to restore the construction
or work site to the same condition as it was before the work, or such
modified condition as approved by the administrator.
(c)
Amount of Security. The surety bond or other security obtained and
provided by a permittee must be in the penalty amount of at least
ten thousand dollars except when the administrator determines that
the proposed work is extensive and would result in costs substantially
exceeding ten thousand dollars to remedy any breach of the permit
requirements. Under such circumstances, the surety bond or other security
must be in a penalty amount which the administrator determines is
necessary to fully insure the city's exposure to all such costs.
(d)
Form of Security. The permittee's surety bond must be in a form approved
by the city attorney and be conditioned upon the duties and obligations
contained in the permit and set forth in this chapter. In lieu of
a surety bond, a permittee may obtain and provide to the city a cash
deposit, certificate of deposit naming the city as the payee thereof
or such other kind of security acceptable to the city's risk manager,
provided such alternate security is accompanied by an agreement, in
a form approved by the city attorney, stating that the security is
being pledged to guarantee performance of the permittee's duties and
obligations under the permit issued to permittee pursuant to this
chapter.
(e)
Where a permit is issued pursuant to this chapter to a property owner
adjoining the portion of the public right-of-way or public service
easement in which the work is to be performed, the administrator may
waive the surety bond or other security requirements of this chapter.
(Ord. 2229 § 2, 2023)
As a further condition of a permit required by this chapter,
all permittees, including, without limitation, persons with a franchise
issued in accordance with applicable law, must design, undertake and
complete such work in the following manner:
(a)
All public improvements constructed or installed within a public
right-of-way pursuant to such permit must be designed, constructed
and installed in accordance with the city's design criteria and improvement
standards.
(b)
Upon commencing work authorized by a permit, the work will be prosecuted
with due diligence in a manner that does not unnecessarily obstruct
or interfere with a public street, public utilities or other facilities
located within a public right-of-way or public service easement. This
provision will be strictly construed.
(c)
Warning Lights. It is the duty of any person making any excavation
in any public right-of-way or service easement, to place and maintain
during the period between sunset of any day and sunrise of the succeeding
day, suitable and adequate lights to warn users of the street of the
obstructions or excavations until such excavation is entirely refilled.
(d)
Location of Pipes. It is unlawful for any person to lay any gas or
water service pipe, or main pipe, or private sewer or any drain or
other conduit in any street or other public place in the city at a
distance of less than two feet below the surface of such public place.
(e)
In accordance with Government Code Section 4216.2, including any
successor statute thereto, persons excavating in the public right-of-way
will comply with the requirements of the Underground Service Alert
("USA") regarding notification of excavation and marking subsurface
facilities. Such person will provide USA with the permit number or
other information that may be necessary to properly identify the proposed
excavation. All markings must be removed within twenty-four hours
after work is completed.
(f)
All excavation permittees are required to furnish compaction reports
on all backfill if required by the city engineer.
(g)
Upon completing approved work, the public right-of-way or public
services easement in which such work was performed must be restored
to the same condition as before the work occurred or such modified
condition as expressly approved by the administrator. All surplus
soils or waste materials removed from the public right-of-way or public
service easement must be deposited or disposed of in a manner that
complies with applicable federal, state, and city laws and regulations.
(h)
At the conclusion of construction or excavation work authorized by
such permit, the permittee must file with the administrator such "as-built"
plans and specifications as may be required by the administrator depicting
any new improvements or facilities or any modifications to existing
improvements or facilities which were constructed or installed in
the public right-of-way or public service easement pursuant to such
permit.
(Ord. 2229 § 2, 2023)
When acting on a permit required by this chapter, the administrator
may add permit conditions to address any special requirements which
the administrator determines are necessary to ensure that the proposed
encroachment or excavation is accomplished in a manner that protects
the safety of persons or property and does not unreasonably interfere
with the use by the city or general public of any public right-of-way
or public service easement and/or any public or private property adjoining
or in the neighborhood of the public right-of-way or public service
easement in which the encroachment or excavation is to be made.
(Ord. 2229 § 2, 2023)
(a)
Refilling. All refilling of any excavation will be made by the administrator.
If the street or place where such excavation is made is graveled,
macadamized or has a cement concrete pavement, such pavement will
be replaced by the administrator, all costs to be borne by the person,
firm, or corporation making the excavation.
(b)
Determination of Cost. The decision of the administrator as to the
cost of any work done or repairs made by the city under the provisions
of this chapter are final and conclusive as to such cost.
(Ord. 2229 § 2, 2023)
(a)
Whenever the administrator or any law enforcement officer determines
that an encroachment or excavation made pursuant to a permit issued
by this chapter threatens public safety, unreasonably interferes with
the use of such public right-of-way or public service easement or
any property adjoining and in the neighborhood thereof, or damages
or threatens to damage other facilities located within the public
right-of-way or public service easement in a manner not authorized
by the permit, the administrator may order such work immediately suspended
and, if appropriate, stopped in accordance with this chapter. The
administrator or any law enforcement officer may immediately suspend
work by a permittee either verbally or in writing if there is an imminent
threat to public health, safety or welfare resulting from a permittee's
work. Thereafter, the administrator must comply with this chapter
as to stopping work.
(b)
If stopping the work is, in the administrator's sole determination,
appropriate, the administrator will cause a written notice of the
order to be served on the permittee and on any person known to the
administrator to be working pursuant to the permit if such person
is someone other than the permittee. In addition to setting forth
the order of the administrator to stop work, such notice will contain
a brief description of the reasons why such work is being ordered
stopped and the action, if any, which may be taken in order that the
work may be resumed; will contain a statement of the right of the
permittee to apply for administrative review of the order and to appeal
the order in the manner provided by this chapter, and advise the person
upon whom the notice is served that unless authorized by the administrator,
any further work performed pursuant to such permit may subject such
person to criminal charges.
(c)
The administrator will also cause a written notice of the order to
be posted in a conspicuous place within the public right-of-way or
public service easement in which such work is being performed. In
addition to setting forth the order of the administrator to stop work,
such notice will state that it is a misdemeanor for such person to
perform any further work without authorization of the administrator
or to remove or deface the posted notice of such order.
(d)
It is unlawful for any person served with a notice of the administrator
to stop work undertaken or carried out pursuant to a permit issued
in the manner provided by this chapter to cause or permit such work
to be performed.
(Ord. 2229 § 2, 2023)
(a)
Whenever the administrator determines that a permittee violated the
terms and conditions of the permit or that the permit was issued based
on an application or plans and specifications which contained a material
misrepresentation of fact, the administrator may revoke the permit
in accordance with this chapter.
(b)
To commence revoking a permit, the administrator will cause written
notice of such order to be served on the permittee. In addition to
notice regarding the revocation, the notice will contain a brief description
of the reasons why the permit is being revoked and will contain a
statement that the permittee has the right to apply for administrative
review of the order and to appeal the order as provided by this chapter.
(c)
A permittee served with a notice of revocation will promptly terminate
the encroachment or excavation and restore the public right-of-way
or public service easement in which such encroachment or excavation
was undertaken or carried out to the same condition as before the
work commenced.
(Ord. 2229 § 2, 2023)
(a)
Where the administrator determines that an encroachment or excavation
was made in a public right-of-way or public service easement without
a permit, in violation or contrary to the terms and conditions of
a permit or order issued pursuant to this chapter, or in any manner
that endangers the safety of persons or property, the administrator
may remove such encroachment, refill such excavation and/or restore
such public right-of-way or public service easement to the same or
substantially the same condition as it was before such work, all at
the permittee's or responsible person's cost, after serving any notice
required by this chapter.
(b)
Upon determining to restore a public right-of-way or public service
easement, the administrator will cause written notice of such determination
to be served on the permittee or other responsible person. In addition
to setting forth the administrator's decision to perform such work,
the notice will include the reasons for restoration and state that
the work will be performed at permittee's cost. Unless the work is
needed to protect public health, safety, or property, the notice will
also allow the permittee to immediately undertake restoration work
at the permittee's sole cost and expense, provided the work is completed
by the permittee within a reasonable time as determined by the administrator
and set forth in the notice.
(c)
Unless the permittee or other responsible person accomplishes the
restoration work themselves, any permittee or other responsible person
who caused the condition that requires restoration work will, upon
the restoration work being complete, be liable to the city for the
full cost thereof. In addition, where a surety bond or other security
was provided to the city as a condition of a permit authorizing construction
or excavation work within a public right-of-way or public service
easement, such surety or other security will be liable to the city
for the cost of such work to the full amount of the surety bond or
other security.
(Ord. 2229 § 2, 2023)
(a)
Except as otherwise provided, an applicant may request administrative
review of the administrator's decision pursuant to this chapter.
(b)
Except as otherwise provided, a request for review must be commenced
within five days from the date on which written notice of the administrator's
decision is served on the applicant/permittee.
(c)
If a request is untimely, the administrator may, nevertheless, extend
the time for commencing such review for good cause shown.
(d)
A request for administrative review will be on a form provided by
the administrator and contain the following information:
(1)
The name, address and telephone number of the person making the request;
(2)
A description of the decision, determination or order which is the
subject of the review, and the date such decision, determination or
order was made or issued;
(3)
A brief description of all grounds for making the request; and
(4)
Such other information as may be required by the administrator.
(e)
Upon request for administrative review being filed, the administrator
will promptly provide a copy of the notice to the city manager.
(f)
Upon receiving a request for review from the administrator, the city
manager will review the request and, within ten business days of receiving
the request notice, provide the appellant with a written notification
that:
(g)
The city manager may, but is not required to, conduct a hearing at
a time and place mutually agreeable to the parties. If the parties
cannot agree on the time or place, then it will be held the next business
day at four p.m. at the city manager's office.
(h)
In addition to other provisions of this chapter, any notification
to the requestor must set forth any modifications of the administrator's
decision.
(i)
The city manager's decision is final. An applicant does not have
any right to appeal that decision to the city council.
(Ord. 2229 § 2, 2023)
