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HomeMy WebLinkAboutCC ORD 2001-2180 Amends Ch. 13.12, encroachment permits for installation, maintenance and removal of facilities in streets, rights-of-way and other public property (13.12)ORDINANCE NO. 2001 - 2180 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AMENDING CHAPTER 13.12 OF THE NATIONAL CITY MUNICIPAL CODE, PERTAINING TO ENCROACHMENT PERMITS FOR INSTALLATION, MAINTENANCE AND REMOVAL OF FACILI I'IhS IN STREETS, RIGHTS -OF -WAY AND OTHER PUBLIC PROPERTY BE IT ORDAINED by the City Council of the City of National City that the National City Municipal Code is amended as follows: Section 1. That Chapter 13.12 of the National City Municipal Code is amended in its entirety to read as follows: ENCROACHMENT PERMITS FOR INSTALLATION, MAINTENANCE AND REMOVAL OF FACILITIES IN STREETS, RIGHTS -OF -WAYS AND OTHER PUBLIC PROPERTY Sections: 13.12.010 Findings, purpose and intent. 13.12.020 Definitions and uses. 13.12.030 Encroachment permits —Required. 13.12.040 Encroachment permits —Bonds and insurance. 13.12.050 Encroachment permits —Application. 13.12.060 Encroachment permits —Authority of City Engineer. 13.12.070 Resurfacing of streets. 13.12.080 Encroachment permits —Revocation —Penalty for violation of terms. 13.12.090 Encroachment permits —Fees. 13.12.100 Nonexclusive use of right-of-way. 13.12.110 Appeal. 13.12.120 Assignment of encroachment permits 13.12.130 Safeguarding of Proprietorial Information. 13.12.140 Alternate administrative hearing procedures for appeals. 13.12.150 Violations and enforcement. 13.12.010 Findings, purpose and intent. A. The City Council finds and determines that the installation, repair, maintenance and removal of private and public facilities in the public streets, rights -of -way and other public property must be regulated in order to protect the public health, safety and welfare and provide for the orderly administration and maintenance of public roadways and other public property for the benefit of the community, while allowing reasonable accommodation and cooperative flexibility for providing necessary utility and other convenience services to the community. It is further the intent of the City Council to require public utility providers, other public and governmental agencies and private parties who are permitted to install facilities in the public streets and rights -of -way to preserve the street surfaces and, when necessary, , contribute proportionately to resurfacing and maintenance as a result of the impact and benefits caused by or obtained from their installations. 2000 Ordinance Encroachment Permits B. It is not the intent of the Council to require applicants and permittees to disclose proprietary information or trade secrets applicable to their technology, systems or facilities, except to the extent reasonably necessary to evaluate the installation or operation of the facility in terms of public health and safety. C. Administration of this ordinance shall be under the direction and control of the City Manager, as further delegated to the City Engineer under this chapter. 13.12.020 Definitions and uses. A. "Facility" means and includes, without limitation, any pole, light or signal standard, traffic or irrigation controller, pipe, conduit, cable, fiber optics, manhole, duct, tunnel, trench, utility cabinet or similar appurtenance. B. "Person" means and includes any natural person, corporation, firm, agency, co- partnership or association, and the singular and plural or the masculine or feminine gender. It also includes a public utility or a public or governmental agency. C. "Public right-of-way" means and includes any public street, alley, sidewalk, driveway, curb, pavement, gutter, or parkway. D. "Improvement" means and includes any addition, alteration or modification to an existing facility. E. "Public property" includes land, easements and other facilities owned, leased by or otherwise belonging to the City of National City, other than "public rights -of -way". F. "Applicant" and "permittee" means the person or entity that is to benefit from the facility and its installation, as well as the contractor or entity doing the actual installation. G. "Encroachment" means the installation of a physical object in, on, over, or upon real property. The term shall also include the line of sight aerial passage of a beam of light or laser through the airspace over real property. It shall not include any wireless, microwave or radio transmission over real property. 13.12.030 Encroachment permits —Required. A. Except as provided in Subsection 13.12.030F, it is unlawful for any person to excavate, construct or remove improvements or facilities within, or grade or encroach upon or over, any public right-of-way or public property of the City of National City without a valid encroachment permit issued pursuant to this chapter. B. An encroachment permit shall allow only the designated permittee(s) and their authorized contractors to install, maintain or remove approved facilities within the boundaries and under the terms and conditions specified in the encroachment permit. The term of the permit may be for a specific duration, or unlimited duration conditional, however, upon the removal or relocation of the facility when necessary for reasons of the public health, safety and welfare, or convenience. No person or permittee, including a franchisee or licensee, shall assign or enlarge the scope of an approved encroachment permit to allow another person to install an additional facility within the permitted encroachment without the prior written authorization of the City Engineer or, when applicable, the City Manager or Council, which authorization shall not be unreasonably withheld or denied. C. The City Engineer shall require the benefiting entity or its duly authorized representative, and may also require the installer when necessary to ensure proper project control, to apply for all requisite permits. Financial obligations imposed by this chapter 13.12 shall relate primarily to the responsibility of the permittee who benefits from the installation of the facility. D. As a condition of an encroachment permit, the permittee shall be required to remove or relocate the permitted facility or encroachment at the permittee's sole expense when determined necessary by the City Engineer as an exercise of the city's police power for the 2000 Ordinance 2 Encroachment Permits public health, safety and welfare or convenience. This shall include the right of the City to regrade or realign the streets or to install its own facilities, and require the permittee to remove or relocate its facility at the permittee's expense. A permittee may also be required to pay for the cost of relocating other previously permitted encroachments when necessary to accommodate its facility. E. The permittee shall obtain any business licenses and all other permits or licenses, including construction permits, required by code, statute or regulation pertaining to the installation of the facility, and for complying with all other provisions of law and this Code, including Chapter 6.12 relating to telecommunications, notwithstanding the issuance of an encroachment permit. F. Nothing in this Chapter 13.12 shall prevent excavation for emergency repairs to public utility service connections or other work that is necessary for the immediate protection of life or property, provided a permit is applied for by the end of the third business day following the commencement of work. G. The City Engineer shall have the authority to promulgate rules and regulations necessary to implement this chapter, and to negotiate and issue annual master encroachment permits to repetitive users with due allowance for the requirements of this chapter 13.12. A "repetitive user" shall refer to any public agency, public utility or other entity with a franchise or license from the city that contemplates repetitive facility installations in the public rights of way and public property. 13.12.040 Encroachment permits —Bonds and insurance. Proof of a performance bond and liability insurance shall be posted by the permittee for each individual or master encroachment permit issued to ensure timely completion of work and to cover damages caused by the work to public right-of-way and property. Comprehensive general liability insurance with a minimum of one million dollars combined single limit per occurrence coverage shall be maintained throughout the term of the permit, except that the City Engineer may require a greater amount of insurance when justified by accepted risk management standards. Statutory liability provisions pertaining to permissibly self -insured entities and joint power agreements or similar agreements with the city meeting the requirements of this chapter 13.12 respecting performance and maintenance criteria may satisfy these requirements. 13.12.050 Encroachment permits —Application. Before any encroachment permit may be issued, the applicant must file with the City Engineer a written application on forms provided by the City. The permit shall be subject to all provisions contained and approved within the application, the City of National City Standard Specifications, Regional and City Standard Drawings, Special Provisions, and Design Standards, and such other conditions as may be imposed by the City Engineer based on accepted engineering practice or as shall be necessary to protect the public health, welfare and safety. 13.12.060 Encroachment permits —Authority of City Engineer. A. The City Engineer may issue a permit to encroach upon, within or over the public right-of-way or other public property of the City of National City only if an applicant for such a permit can demonstrate that: (1) There is a compelling need to use the City right-of-way or property for the applicant's proposed use; (2) The issuance of a permit will not be detrimental to the public health, safety and welfare; 2000 Ordinance 3 Encroachment Permits (3) The applicant is capable and will comply with all the terms, conditions, and restrictions that are incorporated in the permit; and (4) The applicant has complied with all applicable state and federal laws, and has obtained other applicable permits and certifications required under state and federal law. (5) The applicant has reviewed city and other public records pertaining to existing and proposed encroachments and coordinated the details of its facility installation with those facilities and permittees. B. Except with respect to proprietorial information regarding the technology of the cable, facility or customer identity or which could adversely affect an applicant's competitive advantage, the City Engineer shall have the authority to require the applicant, as a condition of permit issuance, to disclose information deemed necessary to the City's decision making process and make suitable provisions in a reasonable manner regarding: (1) The applicant's proposed methods of use of any lines, wires, cables, conduits, and other equipment in the right-of-way, and pertinent technical details regarding the installation, operation and placement of the facility which is necessary to determine the impact upon the public health and safety and the venue of installation; (2) The quantity and dimensions of applicant's proposed installation of lines, wires, cables, conduits, and other equipment in the right-of-way; (3) The quantity and dimensions of applicant's proposed installation of lines, wires, cables, conduits, or other equipment which will be solely used for the provision of telephone service which is currently certificated by the Public Utilities Commission of the State of California; (4) The specific date(s) applicant proposes to begin using any lines, wires, cables, conduits, and other equipment in the right-of-way; (5) The location of all proposed or future installations by the applicant and all existing lines, wires, cables, conduits, and other equipment in the pertinent vicinity of the applicant's proposed installation in the City of National City right-of-way; (6) The specific traffic safety and environmental measures applicant proposes to use while applicant is excavating or obstructing any right-of-way; (7) Any limitations of time applicable to the use or removal of the facilities; (8) The coordination of the proposed facility installation with anticipated or existing encroachments and other construction or improvement in the affected venue of installation. (9) Traffic and pedestrian safety and control. C. Except as to those matters specifically regulated by the Public Utilities Commission, the Federal Communications Commission, or other state or federal agency, the City Engineer shall have the authority to coordinate and prescribe conditions for the installation, use, duration and removal of the facilities and other encroachments by the permittee and its assigns. These conditions may include submittal of record drawings, U.S.A. "Dig -alert" subscription, joint trench cost sharing, screening of aboveground utility cabinets, coordination of work with other agencies or projects, and full cost reimbursement for reasonable and necessary City inspection services during construction. Additionally, the City Engineer is authorized to require installation to be made underground instead of an aerial placement, when determined to be feasible by the City Engineer and as required by law, and to prohibit or restrict the placement of permanent auxiliary power generators within the right-of-way. The applicant shall be responsible for reviewing city and other public records, and contacting existing City permittees and public :utility companies to determine the location of existing facilities that will impact upon or be impacted by the proposed installation, and provide any necessary assurances or provisions 2000 Ordinance 4 Encroachment Permits regarding non-interference with prior permitted facilities and encroachments. The City reserves the right to require the permittee to pay the reasonable costs of hiring an inspector or supervisor to oversee the work and protect the City's interests during facility installation. D. Issuance of a permit does not constitute a representation by the City that subsurface conditions are accurately reflected in the records of the City. Each permittee assumes the risk and responsibility for damage to previously installed permitted facilities. Each permittee shall be responsible for repair or reimbursement for damage to or for relocating previous installed facilities, when caused or necessitated by the installation of its facility. The permittee shall notify the City Engineer and any affected prior permittee(s) when relocation may become necessary. E. Each permit shall include a condition that the permittee shall indemnify, defend and hold harmless the City from all liability occasioned from or caused by the installation or operation of the facility, except that arising from the sole negligence or willful misconduct of the City. F. The City Engineer shall host periodic coordination meetings with potential applicants and current permittees regarding pending applications and proposed construction in the various rights of way and public places. The format of such meetings may be as provided for by existing franchise or license agreements, or as may be determined feasible by the City Engineer. The City Engineer shall not be responsible for obtaining information for any applicant, but shall make existing information available to an applicant for appropriate research and coordination. G. Whenever an exemption or exception from the requirements of this Chapter 13.12 is claimed by an applicant or permittee under the terms of a franchise, an agreement or scope of regulatory preemption, the burden shall be on the applicant or permittee to establish the authority, scope and extent of the exemption to the reasonable satisfaction of the City Engineer. The City Engineer shall accept particular provisions from franchises and related agreements that are in substantial conformity with the various requirements of this chapter 13.12 in the administration and issuance of encroachment permits. 13.12.070 Resurfacing of streets. A. In cases of major excavation into city streets, particularly where the street has been resurfaced within three years preceding the work, the permittee may be required by the City Engineer to replace an entire lane of travel when necessitated by the scope of the installation of the facility, rather than to just patch and repair the particular trench. For purposes of this subsection A, major excavation shall be any trench cut greater than four inches (4") in width, or any point of repair that exceeds four feet by four feet (4'x 4'). The dimensions of the lane of travel shall refer to a pavement width of no less than eight feet (8') nor more than twelve feet (12'). The portion to be resurfaced shall not exceed that dimension that will create a smooth interface between the old and new pavement surfaces. This requirement is imposed in order to maintain the road surface in a smooth, steady state for the benefit of motorists, preserve the structural integrity of the affected surface, and avoid the unnecessary future expenditure of public taxes and monies. B. In situations where several excavators are or will be allowed to separately excavate trenches of minor dimension, which, when accumulated, create a major impact to the road surface, comparable to that described in subsection A, the City Engineer may require each permittee to obligate itself to pay a proportional share for resurfacing of the entire lane of travel, and, where necessary and appropriate, to post a security deposit or surety bond guaranteeing it will participate in or fund the costs of the resurfacing and related work necessary to maintain and preserve the integrity of the right-of-way. 2000 Ordinance 5 Encroachment Permits C. The provisions of this section shall apply equally to franchisees and other public and governmental agencies desiring to excavate in the public right-of-way in National City, except as specifically provided otherwise in the terms of a franchise or related agreement pertaining to street maintenance and repair. Determinations made by the City Engineer under sections 13.12.070A and B shall be based on best engineering and management practice. D. Notwithstanding subsection A, permittees who benefit from the facility installation may be required to share prorata in the ongoing costs of repair and street maintenance directly caused by the proportionate impacts of the installation and maintenance of their facility in the right-of-way. 13.12.080 Encroachment permits —Revocation —Penalty for violation of terms. A. The City Engineer is authorized to revoke an encroachment permit upon determining that the permittee has failed to comply with one or more of the material terms, conditions or restrictions incorporated in the permit or has provided materially false or misleading information to the City Engineer regarding the encroachment or its installation. B. Upon the revocation of an encroachment permit, the permittee shall immediately discontinue any work and cease and desist from further encroaching upon the public right-of- way or property of the City of National City. The permittee shall remediate the site to an as -near original condition as shall be feasible under the supervision and direction of the City Engineer in accordance with code and legal requirements in effect at the time of remediation. Installed facilities shall be removed, unless authorized to be disabled and abandoned in place when determined to be feasible by the City Engineer. C. Any permittee who violates any of the terms, conditions or restrictions of an encroachment permit and thereby materially and adversely affects the public health and safety shall be ineligible to receive another encroachment permit from the City Engineer for a period of one (1) year following the date of such determination, unless this restriction is waived by the City Engineer for good cause. 13.12.090 Encroachment permits —Fees. A. Unless otherwise specifically exempted by existing law or prior franchise, license or other contractual agreement, every person shall pay the fee established in the National City Fee Schedule prior to the issuance of an encroachment permit. B. The permit fee for any application which is not defined in the National City Fee Schedule will be determined by the City Engineer based on the following relevant factors: (1) The quantity, nature and impact of the facility proposed to be installed in the right-of-way; (2) The specific date(s) applicant intends to begin using the facility in the right-of-way, and any corresponding impacts to or upon public services; (3) The future cost to the City of any predictable impacts and accelerated degradation of the street surface caused by the proposed excavation or encroachment, as may be determined by reasonably accurate data and methodology for measuring the pavement's structural response to heavy dynamic loads, similar in magnitude and duration to those produced by moving traffic; (4) The actual or reasonably estimated cost to the City of staff time required to ensure the safety of the roadway, the coordination of the application with other applications, and proper restoration of the street surface; 2000 Ordinance 6 Encroachment Permits (5) Whether the timing of the encroachment can be coordinated with an existing or proposed excavation or encroachment in the same location by the City or another applicant without causing unreasonable delay; and (6) Any other expense that is reasonably related to the additional cost that the City may incur as the direct result of the application or as allowed under law. C. In lieu of a fee, or in consideration of special benefits conferred upon the permittee or through a cost sharing joint trench agreement, the City Engineer or City Council, as applicable, may require the permittee to provide a portion of the installed facility or conduit to the City for its future use or allocation, in order to minimize future disruption to the right-of-way. 13.12.100 Nonexclusive use of right-of-way. A. Encroachment permits are non- exclusive. Any permit issued by the City under this chapter which permits the applicant to excavate, construct or remove improvements or facilities, or grade or encroach within any public right-of-way also permit the City to utilize the right -of -way' -for its own public purposes during the same time period as the applicant's use. The City may extend the time period of the applicant's proposed use of the right-of-way to suit the city's own public purposes. The City engineer may require the permittee to allow others to utilize the excavation for placement of their separately permitted facilities when justified and necessary, upon payment to the permittee of the proportional share of avoided expense together with any additional expense necessitated by such accommodation, provided such accommodation is feasible and does not delay or adversely impact the permittee. Joint trench agreements under this section shall be required prior to commencement of construction. B. Pennittees shall not interfere with facilities installed under prior permits, unless arrangements satisfactory to the City Engineer and the prior permittee are made to protect or relocate the prior facilities at the expense of the subsequent permittee. Notwithstanding, the City shall have the right to remove, relocate or displace any previously allowed or permitted encroachment without liability to a permittee when necessitated by public emergency or the City's exercise of its police power. C. Pennittees who fail to provide accurate record drawings shall be financially liable to the City for the City's construction delay costs directly caused by misidentified facility locations installed by the permittee or its contractors. 13.12.110 Appeal. Any person who is aggrieved by the City Engineer's decision with respect to the issuance, denial, or revocation of an encroachment permit or the imposition of a fee or condition under this Chapter may appeal to the City Council within ten (10) days after receiving notification of the City Engineer's decision. A request for appeal must be filed with the City Clerk, and a hearing before the City Council will be scheduled within a reasonable time after the filing of the appeal. 13.12.120 Assignment of encroachment permits or facilities. Assignments of encroachment permits or facilities without authorization of the City are void. Assignment shall not obviate the obligation of the assignor to perform all terms and conditions of the permit and this ordinance, notwithstanding the assignee's assumption of the same. 13.12.130 Safeguarding of Proprietorial information. Applicants subject to this ordinance shall provide all information required by the City, except that which is expressly exempted by the terms of section 13.12.060(B)(1). If the Applicant declares any portion of the information to be "proprietorial information", Applicant shall identify the same by notation in 2000 Ordinance 7 Encroachment Permits the applicable applications or questionnaire and provide the information to the City in a separate sealed envelope or container clearly identified as "PROPRIETORIAL INFORMATION", together with information identifying ownership. The City will thereafter either retain that information separately in a secure facility, or will return the material to the Applicant without retention of a copy after having conducted its analysis. Proprietorial information retained by the City will not be released by the City under the Public Records Act (Government Code Sec. 6250, et seq.) to any source without prior notice to the Applicant, except upon receipt of a duly authorized court order. Applicant will be offered the opportunity by the City to intervene and represent the Applicant's interests in protecting said proprietorial information on City's behalf; if the opportunity is declined, then the City shall have no further obligation to protect or defend the non -release of the designated proprietorial information or portions thereof. Any proprietorial information previously returned to an Applicant that was relied upon by the City in framing the terms and conditions of a permit shall be conclusive and binding as to Applicant and non - contestable in any subsequent administrative or judicial proceeding involving the permittee regarding that permit. 13.12.140 Alternative administrative hearing provisions for appeals. Upon the mutual election of the City Manager and the Applicant or Permittee, appeals may be determined by an administrative examiner who shall be a member of the American Arbitration Association or similar body mutually acceptable to both parties, or an Administrative Law Judge assigned by the State of California Office of Administrative Hearings. The formal rules of evidence and procedure shall not be applicable to the proceedings, except that any evidence that is relevant and probative or admissible over objection in a civil proceeding shall be admissible during the hearing. The findings and conclusions of the administrative examiner shall be based on "substantial evidence" and be presented in an administrative record, the results of which shall thereafter constitute the exhaustion of administrative remedy and be subject to judicial review by writ of mandamus under Code of Civil Procedure Section 1094.6. 13.12.150 Violations and enforcement. Violation of Sections 13.12.030 or 13.12.080B is a misdemeanor. Each day a violation exists is a separate violation, and each violation may be charged as a separate offense. Violations may be enforced by civil, criminal or administrative measures, or combination, as provided for in Title 1 of this Code. PASSED and ADOPTED this 9TH day of JANUARY , 2001. George H. W ters, Mayor ATTEST: APPROVED AS TO FORM: Michael R. Dalla,,City Clerk George H. Eiser, III City Attorney 2000 Ordinance 8 Encroachment Permits Passed and adopted by the Council of the City of National City, California, on January 9, 2001, by the following vote, to -wit: Ayes: Councilmembers Beauchamp, Inzunza, Morrison, Soto, Waters. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: GEORGE H. WATERS Mayor of the City of National City, California City lerk of the CI of National City, California By: Deputy I HEREBY CERTIFY that the foregoing ordinance was not finally adopted until seven calendar days had elapsed between the day of its introduction and the day of its final passage, to wit, on December 12, 2000, and on January 9, 2001. I FURTHER CERTIFY THAT said ordinance was read in full prior to its final passage or that the reading of said ordinance in full was dispensed with by a vote of not less than a majority of the members elected to the Council and that there was available for the consideration of each member of the Council and the public prior to the day of its passage a written or printed copy of said ordinance. I FURTHER CERTIFY that the above and foregoing is a full, true and correct copy of ORDINANCE NO. 2000-2180 of the City Council of the City of National City, passed and adopted by the Council of said City on January 9, 2001. City Clerk of the City of National City, California By: Deputy