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)
Note: Prior history: Prior Code §§ 3244, 3247 and 7111—7114 and Ords. 1535, 1779, 1987 and 2190.
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)