HomeMy WebLinkAboutCC ORD 2003-2227 Amends Ch. 13.12, encroachment permits (13.12)ORDINANCE NO. 2003 — 2227
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 FACILITIES 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 by amending Chapter 13.12 as follows:
Chapter 13.12
ENCROACHMENT PERMITS FOR INSTALLATION,
MAINTENANCE AND REMOVAL OF FACILITIES IN STREETS,
RIGHTS -OF -WAY AND OTHER PUBLIC PROPERTY
Sections:
Penalty insurance
13.12.010 Findings, purpose and intent
13.12.020 Definitions
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 and responsibility of city engineer
13.12.070 Resurfacing of streets
13.12.080 Encroachment permits —Revocation —Penalty for violation of terms
13.12.090 Encroachment permit fee
13.12.100 Nonexclusive use of right-of-way
13.12.110 Appeal
13.12.120 Assignment of enlargement of encroachment permits or facilities
13.12.130 Safeguarding of proprietary information
13.12.140 Possessory Interest Taxes
13.12.150 Violations and enforcement
13.12.010 Findings, purpose and intent. A. Private work in the public streets,
rights -of -way and other public property is regulated through the encroachment permit
process in order to protect the public safety and provide for the orderly administration
and maintenance of public roadways and other public property for the benefit of the
community. The encroachment permit is a process for clearance by the City to allow
excavation work in public venues with minimum disruption to traffic or public safety.
The process also applies to clearances for work to be performed under grants of
franchise.
Ordinance Amending Chapter 13.12
Page 2 of 10
B. It is the further 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 restore the street surfaces in the
interests of traffic safety and, where applicable and allowable by law, pay fair and
reasonable compensation for the use of public property.
C. It is the intent of the council to not require applicants for encroachment
permits 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 its impact on public safety.
D. Administration of this chapter shall be under the direction and control of
the city manager, and as may be delegated to the city engineer under this chapter.
13.12.020 Definitions. Within this chapter, the following terms and expressions
shall mean and be interpreted as follows:
A. "Facility" means and includes, without limitation, any object, pole, light or
signal standard, traffic or irrigation controller, standpipe, sign, 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, partnership, joint venture 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 interests in real
property owned, leased by or otherwise belonging to the 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, and can also include the contractor or entity doing
the actual installation. It also includes, as applicable, an entity performing excavation
and installation pursuant to a franchise. The term shall also include, without limitation,
telecommunications providers subject to the Telecommunications Act of 1996, as
amended and any other commercial entity that sells or provides services or facilities to
the public or selected subscribers through installations utilizing public rights of way or
public property.
G. "Encroachment" means a facility or other physical object installed within,
under, over, or upon the public right of way or public property. The term shall also
include the line of sight aerial passage of a beam of light or laser through
the airspace over such real property. It shall not include any wireless, microwave or
radio transmission over such real property.
H. "Encroach" refers to the act of installing or maintaining an "encroachment".
It includes excavation.
Ordinance Amending Chapter 13.12
Page 3 of 10
I. "Encroachment permit" refers to a permit or form of clearance issued by
the city engineer for purposes of excavation, grading and placement of facilities in the
public right of way or public property, or any combination thereof.
13.12.030 Encroachment permits —Required. A. Except as provided within
a franchise or subsection F of this section, it is unlawful to construct, install, place,
maintain or remove improvements or facilities, or to grade, excavate or encroach within,
upon, under or over, any public right-of-way or public property of the city without a valid
encroachment permit or clearance issued pursuant to this chapter. Notwithstanding,
rights granted under a franchise shall be subject to the procedures specified in this
chapter for the reasonable regulation and clearances applicable to the commencement
of excavation or installation of facilities, or both, within the public rights of way and
property.
B. An encroachment permit allows only the designated 'permittee(s) and their
authorized contractors to excavate, grade and install, maintain or remove approved
facilities within the boundaries and under the terms and conditions specified in the
encroachment permit. The permit may be for a specific duration or unlimited duration,
conditional upon the removal or relocation of the facility when necessary for reasons of
the public health, safety and welfare, or public convenience. No person or permittee,
including a franchisee or licensee, shall assign or enlarge the scope of an approved
encroachment permit or 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 to apply for all requisite permits. Financial obligations imposed by this
chapter shall relate primarily to and be the responsibility of the permittee who benefits
from the installation of the facility.
D. Issuance of an encroachment permit includes a condition that a permittee
shall remove or relocate the permitted facility or encroachment at the permittee's sole
expense when determined necessary by the city engineer under the exercise of the
city's police power for the public health, safety and welfare or convenience. This shall
include the right of the city to regrade or realign the streets or install its own facilities,
and to require the permittee to remove or relocate its facility at the permittee's expense
when necessary to accommodate the public facility or improvement. A permittee may be
required to pay for the cost of relocating other previously permitted encroachments
when necessary to accommodate its facility.
E. The permittee, or its contractor on behalf of the permittee, shall obtain any
business licenses and other permits or licenses, including construction permits, required
by code, statute or regulation pertaining to the installation of the facility, and shall be
responsible for complying with all other applicable provisions of law and this code,
notwithstanding the issuance of an encroachment permit.
Ordinance Amending Chapter 13.12
Page 4 of 10
F. Nothing in this chapter 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 the entity first notifies the city engineer by
telephone or other means reasonably calculated to promptly apprise the city engineer of
the location and nature of the emergency and applies for a permit no later than 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. 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 or public property.
H. Except where an exemption pursuant to section 13.12.060G exists, the
city reserves the right to charge applicants fair and reasonable compensation allowable
by law for the use of public right of way or property for an encroachment or any future
enlargement of an existing encroachment, in addition to all other fees and processing
costs required under section 13.12.090.
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 respecting
performance and maintenance criteria satisfy these requirements.
13.12.050 Encroachment permits —Application. Before an encroachment
permit may be issued, the applicant must file a written application with the city engineer.
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 as shall be necessary to protect the public health, welfare and safety.
13.12.060 Encroachment permits —Authority and responsibility of city engineer.
A. The city engineer shall issue a permit to excavate or encroach upon, within or
over the public right-of-way or other public property of the city only if an applicant for
such a permit can demonstrate that:
1. There is a compelling need to use the public right-of-way or
property for the applicant's proposed use;
Ordinance Amending Chapter 13.12
Page 5 of 10
2. The issuance of a permit will not be detrimental to public safety or
welfare, nor interfere with access required under the Americans with Disabilities Act
(ADA);
3. The applicant can comply with all the terms, conditions, and
restrictions incorporated in the permit and this ordinance;
4. The applicant has complied or will comply with all applicable state
and federal laws, and has obtained other applicable permits and certifications required
under state and federal law; and
5. The applicant has reviewed city and other public records pertaining
to existing and proposed encroachments and has coordinated, to the maximum extent
reasonably practicable, the details of its proposed facility installation with existing and
previously approved proposed facilities and permittees.
B. Except with respect to proprietary information regarding the technology of
the facility to be installed, customer lists or financial information which could adversely
affect an applicant's competitive advantage, the city engineer shall have the authority to
require the applicant to disclose information deemed necessary to the city's decision
making process in order to make suitable provisions in a reasonable manner regarding:
1. The applicant's proposed methods for installation of any lines,
wires, cables, conduits, and other equipment in the right-of-way, and any pertinent
technical details which are necessary to determine the impact upon public safety in the
venue of installation;
2. The quantity and dimensions of applicant's proposed lines, wires,
cables, conduits, and other equipment to be installed in the right-of-way;
3. The specific date(s) applicant proposes to install or begin using any
lines, wires, cables, conduits, and other equipment in the right-of-way;
4. The location of all proposed installations, if known, 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 right-of-way;
5. The specific traffic safety and environmental measures the
applicant proposes to use while excavating, grading or obstructing any right-of-way;
6. Any time limitations applicable to the installation, use or removal of
the facilities;
7. The coordination of the proposed facility installation with anticipated
or existing encroachments and other construction in the venue of installation;
8. Traffic and pedestrian access, safety and control.
C. Except as to those matters 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, but are not limited to:
1. submittal of record drawings;
2. notification to Underground Service Alert (USA/SC) and "Dig -alert"
subscription;
Ordinance Amending Chapter 13.12
Page 6 of 10
3. joint trench cost sharing, and screening of aboveground utility
4. coordination of work with other agencies or projects;
5. full cost reimbursement for city's actual costs for reasonable and
necessary city inspection services during construction;
6. underground installation in lieu of an aerial or surface placement,
when determined to be feasible by the city engineer and as required by law;
7. prohibition or restrictions on the placement of permanent auxiliary
power generators which impede pedestrian or vehicular access or safety within the
right-of-way.
D. 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 providing any necessary assurances or provisions regarding
noninterference with prior permitted facilities and encroachments. The permittee shall
comply with Government Code section 4216, et seq., regarding notification to
Underground Service Alert of any pending excavation work, and shall be responsible for
the removal or obliteration of markouts upon completion of work. The city reserves the
right to require the permittee to pay for or reimburse the reasonable costs of hiring an
inspector or supervisor to oversee the work to protect the city's interests during facility
installation. •
E. Issuance of a permit does not constitute a representation by the city that
subsurface conditions are accurately reflected in the records of the city, and
the city accepts no liability for any inaccuracies. Each permittee assumes the
complete risk and responsibility for damage to previously installed permitted facilities,
regardless of any inaccuracy of records. Each permittee shall be responsible for repair
or reimbursement for damage to or relocation of previously installed facilities
necessitated by the installation of its facility. The permittee shall notify the city engineer
and any affected prior permittee(s) should repair or relocation become necessary.
F. Issuance of an encroachment permit includes a condition that the
permittee: 1) 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; and, 2) shall maintain
the encroachment and any required conditions of the permit during the life of the
encroachment, except as otherwise agreed or specified.
G. 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 public information
available to an applicant for appropriate research and coordination.
cabinets;
Ordinance Amending Chapter 13.12
Page 7 of 10
H. Whenever an exemption or exception from the requirements of this
chapter is claimed by an applicant or permittee under the terms of a statute, franchise,
license, agreement, regulatory preemption or final judicial decision, the applicant or
permittee shall be responsible for establishing the authority, scope or extent of that
exemption or exception 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 as complying
with the procedures for the administration and issuance of encroachment permits.
I. Notwithstanding the general rights granted in a franchise to use the public
rights of way for installation and maintenance of facilities, no excavation in a public right
of way shall commence by or on behalf of a franchisee without prior notification to and
clearance from the city engineer, except as provided in section 13.12.030F for
emergency work.
13.12.070 Resurfacing of streets. A. Except for new service or an emergency,
or as allowed by franchise, it is city policy to prohibit major excavation in any street that
was resurfaced within the preceding three years. When permitting major excavation in a
city street resurfaced within the preceding three years, the city engineer may require the
permittee to resurface the entire lane of travel for the length of the cut for reasons of
traffic safety. The travel lane shall be resurfaced with a minimum one inch asphalt
overlay or slurry seal overlay to create a smooth interface between the old and new
pavement surfaces. Slurry seal may be used only on streets resurfaced by slurry seal.
For purposes of this subsection "A", major excavation shall be any trench cut greater
than four inches in width, or any point of repair that exceeds four feet by four feet. The
dimensions of the lane of travel to be resurfaced shall refer to a pavement width of no
less than eight feet or more than twelve feet.
B. The city engineer may require two or more permittees who are allowed to
excavate separate trenches or points of repair of minor dimension in the same lane of
travel to resurface the entire lane of travel for the length of the cuts if the excavations,
when accumulated, create an impact to the road surface comparable to or greater than
that described in subsection "A". Each permittee shall post a security deposit or surety
bond guaranteeing resurfacing of the lane of travel. All permittees shall be jointly and
severally responsible for correcting pavement deformities caused by the permittee's
work, as determined by the city engineer.
C. The provisions of this section shall apply equally to franchisees and public
and governmental agencies desiring to excavate in the public right-of-way, except as
provided otherwise in a franchise or related agreement pertaining to street maintenance
and repair. Determinations made by the city engineer under this section shall be based
on best engineering and management practice, and shall take into account any fiscal
considerations that affect the overall public interest.
D. Notwithstanding subsection A, permittees shall be required to repair and
share pro-rata in the ongoing costs of repair and street maintenance directly caused by
the installation and maintenance of their respective facilities in the right-of-way. All
Ordinance Amending Chapter 13.12
Page.8 of 10
permittees shall be jointly and severally responsible for correcting pavement deformities
due to their work, as determined by the city engineer. All repair and resurfacing shall
maintain a smooth interface between the repaired portion and the uncut pavement.
E. Nothing contained in this section or chapter shall limit the city or any
permittee from seeking reimbursement or contribution from another responsible party
for its fair share of corrective costs.
13.12.080 Encroachment permits —Revocation —Penalty for violation of terms.
A. The city engineer is authorized to revoke an encroachment permit for cause upon
determining that the permittee: is proceeding in a hazardous manner; 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. The city engineer may revoke or
modify an encroachment permit without cause when necessary for the installation of a
public improvement by the city, or when necessary to remove an encroachment
extending onto public property from private property that interferes with public
convenience or safety.
B. Upon revocation of an encroachment permit, the permittee shall
immediately discontinue work and cease and desist from further encroachment upon
the public right-of-way or property of the city. The permittee may be required to
remediate the site to an as -near original condition as may 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 by
the permittee, unless authorized by the city engineer to be abandoned in place when
feasible.
C. Any permittee who shall violate any of the terms, conditions or restrictions
of an encroachment permit and thereby materially and adversely affect the public health
and safety shall be ineligible to receive another encroachment permit from the city
engineer for a period of one year following the date of such determination. This
restriction may be waived by the city engineer for good cause.
13.12.090 Encroachment permit fee. Unless exempted by law, franchise or
contractual agreement, every applicant shall pay the permit fee established in the
National City fee schedule prior to the issuance of an encroachment permit. Permit fees
will not be charged for the removal or relocation of an encroachment required by the city
under section 13.12.100B.
13.12.100 Nonexclusive use of right-of-way. A. Encroachment permits are
nonexclusive. Any permit issued by the city under this chapter is subject to the city's use
of the right-of-way for public purposes during the period of the applicant's use. The city
may condition the time period of the applicant's proposed use of the right-of-way to
coincide with city's own use for public projects. The city engineer may require a
permittee to allow others to utilize an excavation for placement of their separately
Ordinance Amending Chapter 13.12
Page9of10
permitted facilities when justified and necessary, upon payment to the permittee of the
proportional share of avoided expense and with any additional expenses necessitated
by such accommodation, provided such accommodation is feasible and does not delay
or adversely impact the permittee. Joint trench agreements under this section can be
required prior to commencement of construction.
B. Permittees 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 has the right to cause the removal, relocation or displacement
of any previously permitted encroachment without liability to a permittee when
necessitated by public emergency or other city exercise of its police power.
C. Permittees who fail to provide accurate record drawings to the city
engineer shall be financially liable to the city for any of the city's construction delay costs
directly caused by misidentified facility locations installed by the permittee or its
contractors.
13.12.110 Appeal. Except as to appeal procedures established pursuant to
franchise, any person 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 calendar days after
receiving written notification of the city engineer's decision. The written request for
appeal shall 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 or enlargement of encroachment permits or facilities.
Any assignment or enlargement of an encroachment permit or the encroachment itself
without authorization of the city is void. Assignment shall not negate the obligation of the
assignor to perform all terms and conditions of the permit and this ordinance,
notwithstanding an assignee's assumption of the same, except with city approval.
13.12.130 Safeguarding of proprietary information. Applicants shall provide all
information required by the city, except that which is exempted by section 13.12.060(B)
(I). Except for maps and construction drawings showing the location and dimensions of
proposed and installed facilities, an applicant may declare any other portion of required
information to be "proprietary information" by identifying the same by notation in the
applicable sections of the application or questionnaire and providing that information to
the city engineer in a separate sealed envelope or container clearly identified as
"PROPRIETARY INFORMATION." Maps or construction drawings showing location and
dimensions of facilities being processed for a permit under this chapter may not be
designated proprietary information. A non -disclosure agreement may be executed by
the city as a condition of requiring proprietary information. The city will either retain
properly identified proprietary information separately, or return it to the applicant without
retention of a copy after having conducted its analysis. Pursuant to Evidence Code
Ordinance Amending Chapter 13.12
Page 10 of 10
Sec.1060, properly identified proprietary information in its possession will not be
released by the city under the Public Records Act (Government Code Sec. 6250, et
seq.) without authorization from the applicant, except upon receipt of a duly authorized
court order. Applicants or permittees will be offered the opportunity by the city to
intervene to protect their interests against the release of proprietary information. If the
opportunity is 'declined, the city thereafter shall have no further obligation to protect or
defend the non -release of the designated proprietary information or portions thereof.
When proprietary information is returned to a permittee after being relied upon by the
city in issuing a permit, then the terms and conditions of that permit shall be conclusive
and binding in any subsequent administrative or judicial proceeding between the
permittee and the city involving that permit.
13.12.140 Possessory Interest Taxes. By accepting a permit issued pursuant to
this Chapter, the permittee acknowledges that notice has been given pursuant to
California Revenue and Taxation Code Section 107.6 that use, occupancy or interest in
any public property conferred by permit or otherwise may cause a possessory interest
tax to be levied upon such interest. The permittee shall be solely liable for, and shall
pay and discharge prior to delinquency, any possessory interest taxes and other taxes
that may be levied against its right to possession, occupancy or use of any public right
of way or property that is conferred by permit, franchise or license.
13.12.150 Violations and enforcement. A. Violation of Section 13.12.030 or
13.12.080(B) 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.
B. The city engineer is authorized to remove illegal encroachments. Costs
shall be charged to a responsible party in accordance with law and the procedures
established iri the municipal code when an illegal encroachment is not voluntarily
removed following reasonable notice to the responsible party. In an emergency, illegal
encroachments may be summarily removed and costs charged without prior notice to
the responsible party or parties.
ATTEST:
PASSED and ADOPTED this 5TH day of AUGUST , 2003.
Nick Inzu4z f ayor
APPROVED AS TO FORM:
,Xx
George H. riser, III, City Attorney
Passed and adopted by the Council of the City of National City, California, on August 5, 2003,
by the following vote, to -wit:
Ayes: Councilmembers Inzunza, Morrison, Natividad, Parra, Ungab.
Nays: None.
Absent: None.
Abstain: None.
AUTHENTICATED BY:
NICK INZUNZA
Mayor of the City of National City, California
City Clerk of the City ofational 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
July 1, 2003, and on August 5, 2003.
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. 2003-2227 of the City Council of the City of National City, passed and
adopted by the Council of said City on August 5, 2003.
City Clerk of the City of National City, California
By:
Deputy