HomeMy WebLinkAbout2004-9 - Adding Chapter 13.20 to Title 13 of the NBMC Pertaining to Use of Public Rights-of-Way.ORDINANCE NO. 2004-9
AN ORDINANCE OF` THE CITY COUNCIL OF THE
CITY OF NEWPORT BEACH, CALIFORNIA, ADDING
CHAPTER 13.20 TO TITLE 13 OF THE NEWPORT
BEACH MUNICIPAL CODE PERTAINING TO USE
OF PUBLIC RIGHTS -OF -WAY
NOW THEREFORE, the City Council of the City of Newport Beach, California,
HEREBY ORDAINS as follows:
SECTION 1: Chapter 13.20 of Newport Beach Municipal Code is hereby added to
read as follows:
Sections:
13.20.010
Purpose; Authority.
13.20.020
Definitions.
13.20.030
City Policies Regarding Use of PROW.
13.20.040
PROW Permit — Applicability.
13.02.050
Exemption.
13.20.060
PROW Permit Application.
13.20.070
Issuance of a PROW Permit.
13.20.080
Construction Plan.
13.20.090
Conditions of Use of PROW.
13.20.100
Excavations.
13.20.110
Post - Excavation Repair and Maintenance.
13.20.120
Coordination of Excavation.
13.20.130
Financial Security and Fees.
13.20.140
Duty to Remove Facilities from PROW and Public Property.
13.20.150
Construction and Maintenance.
13.20.160
Construction Default.
13.20.170
City Vacation or Abandonment.
13.20.180
Facilities Agreements.
13.20.190
System Location Data.
13.20.200
Indemnity.
13.20.210
Liability Insurance.
13.20.220
Failure of the City to Enforce this Chapter.
13.20.230
Company or its Assignees Subject to Present and
Ordinances and /or Resolutions.
13.20.240
Notices.
13.20.245
Severability.
13.20.250
Administration - Declaration of Powers and Authority.
13.20.260
Revocation and Termination.
13.20.270
Appeals.
13.20.275
Possessory Interest.
13.20.280
City's Obligation.
13.20.290
Opportunity to Cure and Correct.
Future
13.20.010 PURPOSE; AUTHORITY.
A. The public rights -of -way are unique public resources held in trust by the
City for the benefit of the public. These physically limited resources require
proper management by the City to maximize the efficiency and minimize
the costs to the taxpayers, to protect against foreclosure of future
economic expansion because of premature exhaustion of the public rights -
of -way, and to minimize the inconvenience to and negative effects on the
public from nontraditional uses of the public rights -of -way.
B. Under the City Charter and applicable state and federal law, the City is
empowered to control access to and use of its public rights -of -way, and
unless specifically pre - empted by state or federal law, to obtain
reasonable and fair compensation for the use of its public rights -of -way.
C. The purpose of this Chapter is to serve and further the purposes identified
and to enable the City to treat similarly persons who are making a similar
use of the City's public rights -of -way, as may be appropriate to comply
with applicable law.
13.20.020 DEFINITIONS.
For purposes of carrying out the intent of this Chapter, the following words,
phrases, and terms shall have the meanings set forth below unless a different
meaning is clearly intended by the use and context of the word, phrase, or term.
Words, terms or phrases not defined in this Section shall have the meaning
defined in 1.08.120 of this code, or if applicable, the meaning or connotation
used in any industry, business, trade, or profession where they commonly carry
special meanings.
"Above Ground Facility" or "AGF" shall mean all structures, poles, pedestals,
cabinets, electric meters and any other facility installed above surrounding grade
in the PROW excluding antennas.
"Cable(s)" shall mean any wire, coax, fiber or conduit used to house the same
"Cable Operator or Cable Service or Cable System or Cable Television
System" shall have the same meaning in this Chapter as in Chapter 5.44.
"California Public Utilities Commission" or "CPUC" shall mean the California
Public Utilities Commission.
"Chapter" unless otherwise specified, shall mean this Chapter 13.20 of the
Newport Beach Municipal Code.
"City" shall mean the City of Newport Beach.
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"Company" shall mean any Person or authorized agent of any Person who is
seeking to obtain or has obtained a franchise, agreement, permit, or license to
install, operate, maintain, or reconstruct facilities used to provide Service(s),
regardless of whether Company is deemed a Public Utility by the California
Public Utilities Commission, or a special district, formed and operating under the
laws of the State of California, and Company's lawful successors, transferees, or
assignees.
"Construction Plan" shall mean a plan that describes in detail the designs,
locations, and an estimated time schedule for the facilities.
"Department" shall mean the Department of Public Works.
"Director" shall mean the Director of the City's Department of Public Works or
his or her designee.
"Excess Capacity" shall mean the volume or capacity in any existing or future
duct, conduit, manhole, hand hole or facility that is or will be available for use by
third party facilities.
"Facility" or "Facilities" shall mean any Cable or other wire or line, pipeline,
pipes, duct, conduit, converter, cabinet, pedestal, meter, tunnel, vault,
equipment, drain, manhole, splice box, surface location marker, pole, structure,
utility, or other appurtenance, structure, property, or tangible thing owned,
leased, operated, or licensed by Company to provide Services, excluding
antennas, that are located or are proposed to be located on the PROW.
"Feasible" shall mean capable of being accomplished in a successful manner
within a reasonable period of time, taking into account environmental, physical,
legal, and technological factors.
"Franchise" shall mean a written contract or agreement executed between
Company and the City.
"Person" shall mean any natural person, business, firm, corporation, estate,
trust, partnership, or other business entity, association, or any other legal entity.
"Public Property" shall mean all real property and improvements owned,
operated or controlled by City, other than public right of way, within the City's
jurisdiction. City Property includes, but is not limited to City Hall, Police and Fire
facilities, recreational facilities, parks, libraries, streetlights and traffic lights.
"Public Utility" shall mean a CPUC regulated service provided by a public utility
provider.
"Public Utility Provider" shall mean a Company that is regulated by and
received a Certificate of Public Convenience and Necessity (CPCN) from the
CPUC, to provide a CPUC regulated service.
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"Public Right -of -Way" or "PROW" shall mean the improved or unimproved
surface of and the space above and below a City easement for Public Utility
purposes, or Street, or similar public way of any nature, dedicated or improved
for vehicular, bicycle, and /or pedestrian related use now or hereafter held by City,
however acquired.
"Service(s)" shall include, but not be limited to, public utilities, electricity, gas,
cable service, information services, sewer, storm drains, water,
telecommunications, traffic controls, transit, video, or other similar services that
may require or request placement of Facilities in the PROW.
"Street" or "Streets" shall mean any street, road, highway, alley, lane, court,
boulevard, or other similar public way, including related facilities such as
medians, parkways, sidewalks, traffic signals and signs.
"Subscriber" shall mean a Person lawfully receiving or using Service.
"System" shall mean a consolidated, connected, or networked group of
Facilities that deliver or provide a Service.
"Traffic Control Plan" shall mean a plan describing the manner in which
Company will manage vehicle, bicycle, and pedestrian traffic along affected
Streets when installing or maintaining Facilities.
13.20.030 CITY POLICIES REGARDING USE OF THE PROW.
A. Promotion of Undergrounding. It is the policy of City to promote
undergrounding of Facilities whenever and wherever Feasible. Whenever
existing Facilities are located underground along a particular PROW, new
Facilities must be installed, at Company's sole expense, underground
along that PROW. Further, whenever any Above Ground Facilities are
located or relocated underground by a Public Utility Provider along a
particular PROW, other Companies shall concurrently relocate Company's
Facilities underground on a cost- sharing basis for all companies involved
in a manner consistent with applicable law. No new Above Ground
Facilities will be allowed in areas where Facilities are undergrounded.
B. Limits on Above - Ground Facilities (AGF). It is the additional policy of the
City to limit the number and control the location of AGF used in
conjunction with underground Facilities consistent with the technical
requirements for providing high quality utility service. Companies shall
place all newly installed Facilities underground or flush mounted vaults,
whenever Feasible. Companies shall coordinate with all affected property
owners to locate all newly installed AGF to minimize inconvenience and
disruption to residents.
C. Excess Capacity. Facilities shall be installed within existing underground
ducts or conduits whenever Excess Capacity is available on reasonable
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terms.
13.020.040 PROW PERMIT — APPLICABILITY.
In addition to any agreement, license, permit or franchise required by this
Chapter or any other Chapter of this code, and in addition to any other permit or
entitlement required by local, state or federal law, Company shall obtain a PROW
permit prior to performing any work in the PROW and shall pay all fees required
by this Chapter.
13.20.050 EXEMPTION.
To the extent Company, or the activities of Company, are by virtue of applicable
Federal law or State law or Franchise specifically exempted from the provisions
of Section 13.20.130, the provisions of Section 13.20.130 shall not apply.
13.20.060 PROW PERMIT APPLICATION.
An application for a PROW permit, along with payment of any fees or deposit
required by this Chapter, shall be filed with the Director, in the form and manner
required by the Director and shall contain, at a minimum, all of the following:
A. The identity of Company. If the application is made by an authorized
agent of Company, written authorization shall be provided.
B. Engineering plans, specifications and a network map of the Facilities to be
located within the PROW, including a map in electronic and /or other form
required by the City. The plans and specifications shall show:
1. The location of all existing and proposed Facilities in the PROW
along proposed route including the type and location of existing and
proposed pedestals and other Above Ground Facilities, along with,
if required by the Director, photographs or artists renderings, of all
above - ground visible equipment, from which their fully- dimensioned
size must be apparent. The submission may be required to include
a detailed description of the equipment included within the above-
ground installation including the electronic components, natural gas
generator, electrical fans, and the anticipated noise levels during
winter and summer months and the emergency backup operations
and the proposed maintenance schedule for the Facilities. For all
Facilities, proof shall be made to the satisfaction of the Director that
the public notice requirements of this Chapter have been fulfilled or
the manner in which they will be fulfilled.
2. The specific trees, structures, improvements, facilities and
obstructions, if any that Company proposes to temporarily or
permanently remove or relocate.
3. Reference to or documentation of Company's CPCN or other
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legally established right to use the PROW for the Services to be
provided.
C. Excess Capacity. If Company is proposing an underground installation
within new Facilities to be constructed within the PROW, it shall agree to
provide, upon request, information regarding any Excess Capacity that will
exist in such ducts or conduits after installation of Company's Facilities, to
the City or a subsequent permit applicant.
D. A Construction Plan. The information required by Section 13.020.080,
including but not limited to a construction schedule, final completion date,
and specific construction benchmark dates as to identified portions of the
project.
E. A Traffic Control Plan. In accordance with such guidelines established by
the City.
F. A Public Notification Plan. Companies may be required by the Director to
provide reasonable advance notice to the public via a public notification
plan of the proposed quantity, precise dimensions, design, color, type,
potential noise and location of Above Ground Facilities pursuant to
guidelines promulgated by the Director. The plan is subject to the prior
approval of the Director. The guidelines shall take into account the area
covered and impacts of the AGFs.
G. Certifications. Upon request, Company shall provide copies of
certifications, licenses, permits, franchises or other applicable approvals to
construct and operate the Facilities and to offer or provide the Services.
Company shall also provide a certification that the Company will comply
with all applicable local state and federal requirements in the installation,
operation, maintenance, or removal of its Facilities.
H. Contact with other Companies. Company shall first seek to use
technically compatible Excess Capacity of other Companies by contacting
the Companies specified by the Director in writing. If use of Excess
Capacity is not technically compatible, Company shall provide an
explanation to Director as to why any Excess Capacity cannot be used. It
shall also provide reasonable advance notice to other Companies
specified by the Director in writing and provide them an opportunity to
jointly install Facilities in the property which is proposed to be the host of
Company's Facilities.
Other. Other information relating directly to PROW management and use
as may reasonably be required by the Director.
13.20.070 ISSUANCE OF A PROW PERMIT.
A. Each PROW permit shall be subject to the criteria and provisions of this
Chapter. The PROW permit shall be promptly issued upon review of a
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completed application and a determination by the Director that Company
has complied or will comply with all applicable requirements of this
Chapter.
B. Criteria. The determination to grant or deny a PROW permit shall be
based upon the criteria set forth in this Section. The Director shall
consider the following:
1. The capacity of the PROW to accommodate Company's proposed
Facilities and Facilities known to be needed in the future.
2. The capacity of the PROW to accommodate known additional
Facilities if the permit is granted.
3. The damage or disruption, if any, to the PROW or any public or
private Facilities, improvements, aesthetics, Services, pedestrian or
vehicle travel or landscaping if the permit is granted.
4. The availability of technically compatible, existing Facilities or
Excess Capacity, or alternate routes and /or locations for the
proposed Facilities which would be less disruptive or which better
protects the PROW for its dedicated use.
5. The adverse aesthetic or blighting effect of any Above Ground
Facilities by virtue of their design, color, dimensions, locations and
quantity.
6. Compliance with the requirements of this Chapter, the code and
other federal, state and local requirements.
7. Completion of any environmental review required under the
California Environmental Quality Act (CEQA).
8. The extent to which Company has a legal right to use the PROW.
C. Modifications. Any approval of a permit may require modifications to the
proposed activities pursuant thereto as a result of the Director's
consideration of the factors set forth above, including by limiting or
changing the number, size, color and location of the Above Ground
Facilities and equipment proposed to be installed and /or requiring the
installation of landscape or other camouflaging techniques or requiring
undergrounding to minimize adverse visual impacts and obstructions.
D. Fees. As a condition of the issuance of any permit, Company shall pay
and submit all applicable cost -based fees authorized by this Chapter and
assessed by Resolution of the City Council.
E. Right to Inspect. Upon the provision of reasonable notice by the City,
Company shall allow the City the unrestricted right to inspect Company's
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work at any time the City deems appropriate.
F. Duration and Validity. Permits shall be void if the work has not begun
within ninety (90) calendar days of the start date specified in the permit, if
the excavation is not prosecuted diligently to its conclusion, or if the
excavation, including restoration, has not been completed within the
specified duration; provided, however, that the Director, may upon good
cause, issue extensions to the start date, the duration of excavation, or
both upon request from Company.
G. Permit Available On -Site. The permit or a photo duplicate shall be
available for review at the site of the excavation for the duration of the
excavation and shall be shown, upon request, to any police officer or any
employee of a City agency, board, commission, or department with
jurisdictional responsibility over activities in the PROW.
13.20.080 CONSTRUCTION PLAN.
A. Submittal Requirements. Not less than thirty (30) days prior to proposed
commencement of any work in the PROW, Company shall submit to the
Director for his or her review a Construction Plan containing the following
information:
1. Date for Work Completion. Company shall identify a completion
date for the work and shall complete the System construction
authorized by the PROW permit no later than the date specified in
the permit. If Company requires additional time to complete work, it
shall so notify Director and Director may grant a work completion
extension.
2. Facility Information. The Construction Plan shall include
photographs or artist renderings of all proposed Facilities for the
work area as well as their locations, dimensions, and color. Any
modifications to Construction Plans must be reviewed and
approved by Director before modifications can be implemented by
Company. In addition, Company shall provide the Director with
engineering base maps identifying Company's existing
underground and aerial utility facilities, poles, trench routes, and
locations for above - ground equipment in the work area within the
Construction Plan in both electronic form (digital or otherwise as
specified by Director) to the extent available and hard -copy form.
3. Hours of Construction. All construction shall be accomplished and
maintained between the hours specified by the Director.
Construction shall not interfere with the existing or known future
services of the City or private or public third parties.
4. Traffic Control Plan. At the request of Director, Company shall
furnish a detailed Traffic Control Plan to the Director prior to the
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commencement of any construction activities which may interfere
with traffic in arterial Streets a Traffic Control Plan.
5. Telephone Contact. Company shall provide the Director with a
telephone contact number, answered twenty -four (24) hours a day
during the construction period, to enable the Director to report any
concerns regarding construction of the Facilities. After business
hours such calls will be routed to an on -call supervisor. In the event
that the Director reports any concerns to Company, Company shall
respond in a timely manner. Company shall immediately correct
any adverse impact to the City's use or operations or the use or
operations of a third party caused by Company construction
activities in the PROW at no cost to the City. Safety violations will
be cause for immediate project shut -down.
B. Emergency Excavation. Nothing contained in this Section shall be
construed to prevent Company from taking any action necessary for the
preservation of life or property or for the restoration of interrupted Service
provided by Company when such necessity, arises during days or times
when the Department is closed. In the event that Company takes any
action to excavate or cause to be excavated the PROW pursuant to this
Section, Company shall apply for an emergency permit within twenty -four
hours after the Department's offices first opened. The applicant for an
emergency permit shall submit a written statement the basis of the
emergency action and describe the excavation performed and work
remaining to be performed.
C. Blanket Permits. The Director may issue blanket permits to Company to
make excavations for utility service connections, for the location of trouble
in utility conduits or pipes and for making repairs thereto, or for emergency
purposes. Blanket permits shall be issued on a yearly basis only, and
shall authorize only excavations referred to in this Section. Except as
specifically provided otherwise in this Chapter, excavations authorized by
this Section shall be subject to all fees and requirements of this Chapter.
D. Construction Status Report. During construction, Company shall, at the
request of the Director, submit to the Director regular progress reports
describing in detail the status of construction in relation to the Construction
Plan. The first report shall be submitted within seven (7) days after
commencement of construction and shall be updated days thereafter, as
may be required by the permit. Work plans shall be provided in advance
to the Director for review and approval.
E. Notification. Company shall provide written notification to the Director of
any construction and /or maintenance activities undertaken in PROW,
whether undertaken pursuant to permit or otherwise, within five (5)
business days of commencement of said activities unless said activities
have been previously reported to the Director.
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F. Approvals of Construction Plan. No permits shall be issued until the
Construction Plan is reviewed pursuant to all relevant public health, safety,
and welfare criteria and approved by the Director.
13.20.090 CONDITIONS OF USE OF PROW.
A. All Facilities of Company shall be so located, constructed, installed and
maintained so as not to endanger, interfere with or limit the usual and
customary use and /or traffic and travel upon the PROW as well as
adjacent private property pursuant to a routing plan to be approved by the
Director.
B. In the event Company creates a hazardous or unsafe condition or an
unreasonable interference with property, such Company shall remove or
modify that part of the Facility to eliminate such condition from the subject
property.
C. Company shall not place equipment where it will interfere with existing and
known future City uses of the PROW, with the rights of private property
owners as determined by the Director, with gas, electric, sewer or
telephone fixtures, with water hydrants and mains, with sewers, storm
drains or v- ditches, or any wastewater stations, with any traffic control
system, or any other City facility.
D. Company, at its own expense and pursuant to a timeline approved by the
Director, shall protect the PROW and support or temporarily disconnect or
relocate any of Company's Facilities when necessitated by reason of:
1. Traffic conditions;
2. Public safety;
3. Temporary or permanent Street closing not for the benefit of a
private party;
4. Street construction or resurfacing;
5. A change or establishment of Street grade;
6. Installation of sewers, drains, water pipes, storm drains, lift stations,
force mains, street light facilities, traffic signal facilities, tracks, or
any other public use of the right -of -way.
E. It shall be the responsibility of Company to mark its Facilities with search
wire if possible and to locate and mark or otherwise visibly indicate and
alert others to the location of its underground Facilities before employees,
agents, of independent contractors of any entity perform work in the
marked -off area. Company shall participate in and adhere to the practices
of Underground Services Alert ( "USA ") or its successor notification system
and provide at least forty -eight (48) hours prior notice to USA prior to any
excavation.
13.20.100 EXCAVATIONS.
A. Applicability. Each excavation in the PROW pursuant to this Chapter shall
be performed in accordance with this Chapter and with the standard plans
and specifications of the Department and any Department orders or
regulations, except where the Director, at his or her discretion, grants prior
written approval to deviate from the standard plans and specifications,
orders, or regulations. The Director shall develop guidelines to implement
the granting of waivers authorized pursuant to this Chapter.
B. Notices. The Director may require reasonable notice from Company if
Company excavates or causes an excavation in the PROW in a manner
that, due to duration or location of the excavation, has the potential to
disrupt traffic flow or adjacent properties, as follows:
1. Post and maintain notice at the site of the excavation. The notice
shall include the name, telephone number, and address of
Company, a description of the excavation to be performed and the
duration of the excavation. The notice shall be posted along any
Street where the excavation is to take place at least seventy -two
(72) hours prior to commencement of the excavation.
2. At least ten (10) calendar days prior to commencement of the
excavation, Company shall provide written notice delivered by
United States mail to each property owner on the Street affected by
the excavation and each affected neighborhood and merchant
organization that is listed in the latest Assessor's Roll for names
and addresses of property owners shall be used for the mailed
notice. This notice shall include the same information that is
required for the posted notice pursuant to this Subsection B1 and
the name, address, and 24 -hour telephone number of a Person
who will be available to provide information to and receive
complaints from any member of the public concerning the
excavation, or
3. At least ten (10) calendar days prior to commencement of the
excavation, Company also shall deliver a written notice to each
dwelling unit on the block(s) affected by the excavation. This written
notice shall include the same information that is required for the
written notice pursuant to Subsection B2.
C. Notice for emergency excavation. For emergency excavation, Company
shall post and maintain notice at the site of the excavation during the
construction period. The notice shall include the name, telephone number,
and address of Company, a description of the excavation to be performed,
and the duration of the excavation. The notice shall be posted along any
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Street where the excavation is to take place.
D. Marking of Sub - Surface Facilities. If Company excavates in the PROW, it
shall comply with the requirements of the underground service location
regarding notification of excavation and marking of subsurface Facilities.
Company shall provide underground service location with the assigned
number of the permit to excavate or other information as may be
necessary to properly identify the proposed excavation.
E. Limits on Excavation in the Public Right of Way.
1. Scope. It is unlawful for Company to make, cause, or permit to be
made, any excavation in the PROW outside the boundaries, times,
and description set forth in the permit.
2. Rock Wheel and Trenchless Technology. Use of a rock wheel or
other trenchless technology to excavate in the PROW is unlawful
without prior written approval of the Director.
3. Single Excavation maximum of 1,200 feet. No single excavation
site shall be longer than one thousand two hundred (1,200) feet in
length at any time except with the prior written approval of the
Director.
4. Moratorium Streets. The Department may not issue any permit to
excavate in any Street that has been reconstructed or resurfaced
by the Department or any other owner or Person in the preceding
five (5) year period. However, the Director may, in his or her
discretion, grant a waiver of this Subsection for good cause. Good
cause shall include the fact that the need to excavate arose in spite
of Company's full compliance with the coordination of excavation
provisions in Section 13.20.120. The Director is authorized to grant
a waiver for an excavation that facilitates the deployment of new
technology or new Service as directed pursuant to official City
policy. The Director shall issue his decision on a waiver within a
reasonable period after receipt of a written request for a waiver.
The Director may place additional conditions on a permit subject to
a waiver. The Director's decision regarding a waiver shall be final.
F. Excavation Sites. Company shall be subject to requirements for
excavation sites that are set forth in Department orders or regulations,
these orders or regulations shall include, but not be limited to, the
following measures:
1. Protection of the Excavation. Company shall cover open excavation
with non -skid steel plates ramped to the elevation of the contiguous
Street, pavement, or other PROW, or otherwise protected in
accordance with guidelines prescribed by the Department.
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2. Housekeeping and removal of excavated material. Company shall
keep the area surrounding the excavation clean and free of loose
dirt or other debris in a manner deemed satisfactory to the City.
Excavation sites shall be cleaned at the completion of each
workday. In addition, Company shall remove all excavated material
from the site of the excavation no later than the end of each
workday.
3. Storage of Materials. Materials and equipment used for the
excavation within seven (7) calendar days may be stored at the site
of the excavation, except that fill material, sand, aggregate, and
asphalt- coated material may be stored at the site only if it is stored
in covered, locked containers.
4. Hazardous material. Company shall be subject to hazardous
material guidelines for data collection; disposal, handling, release,
and treatment of hazardous material; site remediation; and worker
safety and training. The guidelines shall require Company to
comply with all federal, state, and local laws regarding hazardous
material purposes of this Subsection. Hazardous material shall
mean any gas, material, substance, or waste which, because of its
quantity, concentration, or physical or chemical characteristics, is
deemed by any federal, state, or local authority to pose a present or
potential hazard to human health or safety or to the environment.
5. Water Quality Management Plans or Stormwater Pollution
Prevention Plans. The Director may require the development and
implementation of a WQMP or SWPPP for any excavation project.
G. Stop Work Orders, Permit Notification, Permit Revocation. If the Director
has determined that Company has violated this Chapter or that an
excavation poses a hazardous situation or constitutes a public nuisance,
public emergency, or other threat to public health, safety, or welfare, or
when the Director determines that there is a paramount public purpose,
the Director is authorized to issue a stop work order, to impose new
conditions upon a permit, or to suspend or revoke a permit by notifying
Company of such action in a written, electronic, or facsimile
communication.
H. Restoration of the PROW.
1. Restoration. In any case in. which the sidewalk, Street, or other
PROW is or is caused to be excavated, Company shall restore or
cause to be restored such excavation in the manner prescribed by
the orders, regulations, and standard plans and specifications of
the Director. At a minimum, trench restoration shall include
resurfacing to a constant width equal to the widest part of the
excavation.
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2. Backfill, replacement of pavement base, and finished pavement.
Activities concerning backfilling, replacement of pavement base,
and finished pavement shall be performed in a manner specified by
the orders, regulations, and standard plans and specifications of
the Director. In addition, these activities shall subject to the
following requirements:
(a) Backfill. Each excavation shall be backfilled and compacted
within seventy -two (72) hours from the time the construction
related to the excavation is completed.
(b) Replacement of pavement base. Replacement of the
pavement base shall be completed within seventy -two (72)
hours from the time the excavation is backfilled.
(c) Finished pavement. Finished pavement restoration shall be
completed within ten (10) days or sooner as directed by the
Director.
3. Modification to requirements. Upon written request from Company,
the Director may grant written approval for modifications to the
requirements of this Section.
4. Incomplete Excavation — Completion by the City. In any case
where an excavation is not completed or restored in the time and
manner specified in the permit, this Chapter, or the orders,
regulations, and standard plans and specifications of the
Department, the Director shall order Company to complete the
excavation as directed within twenty -four (24) hours, If Company
should fail, neglect, or refuse to comply with the order, the Director
may complete or cause to be completed such excavation in such
manner as the Director deems expedient and appropriate. The
Company shall compensate the City for any costs associated with
the administration, construction, consultants, equipment,
inspection, notification, remediation, repair, restoration, or any other
actual costs incurred by the City or other agencies, boards,
commissions, departments of the City that were made necessary
by said excavation. The cost of such work also may be deducted
from Company's Security Fund pursuant to Section 13.20.130. The
Director's determination as to the cost of any work done or repairs
made shall be final.
5. Subject to the limitation set forth in this Chapter, completion of an
excavation or restoration by the Department in accordance with this
Chapter shall not relieve the owner or Company from liability for
future pavement failures at the excavation site.
ir!
13.20.110 POST - EXCAVATION REPAIR AND MAINTENANCE.
A. Repair and Maintenance Obligation of Company. Each Company that
excavates or causes to be made an excavation in the PROW shall be
responsible to maintain, repair, or reconstruct the site of the excavation so
as to maintain a condition acceptable to the Director until such time as the
site of the excavation is repaved or resurfaced by the Department, or
pursuant to a subsequently issued PROW permit.
B. Subsurface or Pavement Failures. In the event that subsurface material
or pavement over or immediately adjacent to any excavation should
become depressed, broken, or fail in any way at any time after the work
has been completed, the Director shall exercise his or her best judgment
to determine the Person(s) responsible, if any, for the failure in the
subsurface or surface of the PROW and shall designate such Person as
the responsible party. The Director shall notify said Person(s) of the
condition, its location, and the required remedy, and such Person(s) shall
repair or restore, or cause to be repaired or restored, such condition to the
satisfaction of the Director within seventy -two (72) hours of the notification,
unless, in the interest of public safety, the Director extends the time for the
responsible party to repair or restore the affected PROW.
C. Repair by the City.
1. In the event that any Person(s) fails, neglects, or refuses to repair
or restore any condition pursuant to the Director's notice, the
Director may repair or restore, or cause to be repaired or restored,
such condition in such manner as the Director deems expedient
and appropriate. The Person(s) identified by the Director as the
responsible party shall compensate the Department for any costs
associated with the administration, construction, consultants,
equipment, inspection, notification, remediation, repair, restoration,
or any other actual costs incurred by the City that were made
necessary by reason of the repair or restoration undertaken by the
Department. The cost of such work also may be deducted from
Company's Security Fund. The Director's determination as to the
cost of the repair or restoration performed shall be final.
2. Repair or restoration by the Department in accordance with this
Section shall not relieve the Person(s) from liability for future
pavement failures at the site of the repair or restoration.
D. Emergency Remediation by City.
1. If, in the judgment of the Director, the site of an excavation is
considered hazardous or if it constitutes a public nuisance, public
emergency, or other imminent threat to the public health, safety, or
welfare that requires immediate action, the Director may order the
condition remedied by a written, electronic, or facsimile
15
communication to the Person(s) responsible, if any, for remedying
the condition and shall designate such Person as the responsible
party.
2. If the responsible party is inaccessible or fails, neglects, or refuses
to take immediate action to remedy the condition as specified in
said communication, the Director may remedy the condition or
cause the condition to be remedied in such manner as the Director
deems expedient and appropriate. The Person(s) identified by the
Director as the responsible party shall compensate the Department
for any reasonable costs associated with the administration,
construction, consultants, equipment, inspection, notification,
remediation, repair, restoration, or any other actual costs incurred
by the Department or other agencies, boards, commissions,
departments of the City that were made necessary by reason of the
emergency remediation undertaken by the Department, The cost of
such work also may be deducted from Company's Security Fund
pursuant to Section 13.20.130. The Director's determination as to
the cost of any remediation performed shall be final.
3. Remediation by the Department in accordance with this Section
shall not relieve the Person(s) from liability for future pavement
failures at the site of the remediation.
13.20.120 COORDINATION OF EXCAVATION.
A. Advanced Planning.
1. On the first day of April and October, or the first regular business
day immediately thereafter, each Company that requests a permit
under this Chapter, shall prepare and submit to the Department a
plan, in a format specified by the Department that shows all major
work anticipated to be done in the PROW in the next two (2) years
( "Two -Year Plan "). Any company that does not prepare a Two
Year Plan shall submit a statement that no such major work is
anticipated and shall immediately report any major work to the
Department as soon as it becomes reasonably foreseeable.
2. Unless State law provides otherwise, the Department may disclose
information contained in a Two -Year Plan to any Company only on
a need -to -know basis in order to facilitate coordination among
excavators and to avoid unnecessary excavation in City Streets. To
the maximum extent permissible under federal, state, and local
laws applicable to public records, the City shall not otherwise
disclose to the public any information contained in a two -year plan
submitted by Company except to the extent necessary to
coordinate with other permit applicants or projects, or to the extent
the information is proprietary, trade secret or is otherwise protected
from disclosure; provided, however, the City shall have no duty to
16
decline to disclose any information that Company has not identified
on its face as proprietary, trade secret or otherwise protected from
disclosure. The Department shall notify Company of request for
inspection of public records that calls for disclosure of any two -year
plan on which any information has been identified as proprietary,
trade secret or protected from disclosure. The Department shall
consult with the City Attorney regarding any such request and shall
inform Company either that the Department will refuse to disclose
the protected information or, if there is no proper basis for such
refusal, that the Department intends to disclose the requested
information unless ordered otherwise by a court. The City shall be
under no obligation to initiate or defend any litigation relating to this
provision.
B. City's Pavement Management Plan ( "PMP ").
1. The Department shall prepare a two -year Pavement Management
Plan ( "PMP ") showing all proposed resurfacing and reconstruction
in the PROW. The PMP may be revised from time to time after
receipt of the two -year plans from Companies. In order to facilitate
coordination and minimize the cost of excavation, the Department
shall make its PMP available for public inspection.
2. Except when waived by the Director, at least one hundred eighty
(180) calendar days prior to undertaking the resurfacing and
reconstruction of any Street, the Department shall send a notice of
the proposed repaving and reconstruction to each Company,
C. Coordination. The Department shall review the Two -Year Plans and
identify conflicts and opportunities for coordination of excavations. The
Department shall notify affected owners and Company of such conflicts
and opportunities to the extent necessary to maximize coordination of
excavation. Each applicant shall coordinate, to the extent practicable, with
each potentially affected owner and Company to minimize disruption in the
PROW.
13.20.130 FINANCIAL SECURITY AND FEES.
A. Security Fund.
1. Prior to the Effective Date of any PROW permit, the Director may
require Company to deposit into a bank account established by the
City, and to maintain on deposit through the term of any PROW
permit, or blanket permit, a sum specified as security ( "Security
Fund ") for the faithful performance by Company of all of the
provisions of any PROW permit, compliance with this Chapter, with
all orders, permits and directions of the City, or any designated
representative of the City having jurisdiction over Company's acts
or defaults under any PROW permit of this Chapter, as security for
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the payment to the City of any claims, fees, liens, maintenance
obligations relating to Above Ground Facilities, or taxes due the
City which arise by reason of the construction, operation or
maintenance of the Facilities pursuant to any PROW permit, or this
Chapter, and to satisfy any actual damages arising out of a breach.
The provisions of this subsection shall be satisfied if similar security
is provided in compliance with a City franchise or other written
agreement.
2. Except as otherwise provided in any PROW permit, if Company
fails, after forty -five (45) days written notice, to pay to the City any
fees that are due and unpaid, or fails to repay within such forty -five
(45) days, any damages, costs or expenses which the City is
compelled to pay by reason of any act or default of Company in
connection with its PROW permit; or if Company fails to comply
with any provision of any PROW permit or this Chapter and the City
determines that the failure was without just Cause and, in a manner
consistent with the procedures specified in this Chapter, Director
reasonably determines it can be remedied by a withdrawal from the
Security Fund or is nevertheless subject to liquidated damages,
then, in any such event, the Director may immediately withdraw the
amount thereof from the Security Fund, with interest and any
liquidated damages. Upon such withdrawal, the Director shall notify
Company of the amount and the date of withdrawal.
3. Within thirty (30) days after notice to Company that any amount has
been withdrawn by City from the Security Fund, Company shall
deposit a sum of money sufficient to restore the Security Fund to
the original amount.
4. The rights reserved to the City with respect to the Security Fund are
in addition to all other rights of the City, and no action, proceeding
or exercise of any right with respect to such Security Fund shall
affect any other right the City may have.
B. Faithful Performance Bond and Labor and Materials Bond. As an
alternative to A above, prior to issuance of any PROW permit, Director
may require. Company to furnish proof of the posting of a Faithful
Performance Bond and /or Labor and Materials Bond in favor of the City,
with corporate surety approved by the Director in the sum specified in any
PROW permit, and conditioned that Company shall well and truly observe,
fulfill, and perform each term and condition of any PROW permit;
provided, however, that such bond(s) shall not be required after
certification by Director of the completion of construction. The corporate
surety must be authorized to issue such bonds in the State of California,
and the bond must be obtained and secured through an agent approved
by the Director. During the course of construction, the amount of the
bond(s) may from time to time be reduced, as provided in any PROW
permit. Written evidence of payment of premiums shall be filed with the
iK
Director.
C. Permit Fee. Each Company shall pay to the City a fee established by
Resolution of the City Council to compensate the Department for the cost
incurred to process applications for a PROW permit or for Blanket PROW
permits under the provisions of this Chapter.
D. Inspection Fee. To verify that Company has constructed the Facilities in
the manner required by this Chapter, the City is authorized to inspect the
construction or maintenance at any time as well as to inspect all
necessary documents related to said construction and maintenance of
Facilities in the PROW. The City may collect and apply an inspection fee
in amounts authorized by Resolution of the City Council for this purpose.
E. Technical Consultant Fee. City may require reimbursement of actual
costs for outside technical consultants to advise City when questions of
technical feasibly or compatibility cannot be determined by City
employees.
F. Collection, Return, and Refund of Security Funds and Fees.
1. Refunds. When an application is either withdrawn by Company or
denied by the Department before the start of construction,
Company's permit fee assessed under Subsection C shall be
retained and inspection fees assessed under Subsection D shall be
returned to the applicant without interest.
2. Retention of Security Fund. Moneys in the Security Fund may be
retained by the City for a period of three (3) years after the
satisfactory completion of the excavation to secure the obligations
in the permit and this Chapter.
3. Return of Security Fund. Upon expiration of three (3) years from the
satisfactory completion of the excavation as determined by the
Director, Company's Security Fund, less the deductions made,
shall be returned to Company or to its assigns.
13.20.140 DUTY TO REMOVE FACILITIES FROM PROW AND PUBLIC
PROPERTY.
A. In addition to the circumstances provided for in Section 13.20.090 (D), the
Director may order Company to remove its Facilities from Public Property
or PROW at its own expense whenever the following occurs:
1. A Company ceases to operate all, or part of the Facility for a
continuous period of twelve (12) months;
2. A Company ceases and fails to complete construction of the Facility
outlined in the PROW permit within the term or duration of the
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PROW permit; or
3. The Company's PROW permit is revoked.
B. If not removed voluntarily by Company, then the Director may notify
Company that should removal of the property not be accomplished within
a reasonable time specified by the Director, the Director may order the
removal of the Facilities at that Company's expense. The Security Fund
identified in Section 13.20.130 shall be available to pay for such work.
C. If officials or representatives of the City remove Facilities, and if Company
does not claim the property within thirty (30) days of its removal, then the
City may take whatever steps are available under State law to declare the
property surplus, and sell it, with the proceeds of such sale going to the
City.
D. When such Company removes its Facilities from the PROW, Company
shall, at its own expense, and in a manner approved by the Director,
replace and restore such PROW to a condition comparable to that which
existed before the work causing the disturbance was done.
E. Company shall maintain the deactivated Facilities at no cost to the City
until removed by Company. The Company shall provide a written list to the
Director of all deactivated Facilities located within the City at annual
intervals. The Company shall remove or disable non - useful Facilities in
accordance with a removal plan approved by the Director. The Company
shall provide the Director with a list of the specific Facilities to be removed
and their locations. The Company shall remove all these Facilities within
ninety (90) days after deactivation unless another period is specified by
the Director.
F. Director may, upon written application by Company, approve the
abandonment of any property in place by Company under such terms and
conditions as the Director may approve. Upon Director - approved
abandonment of any property in place, Company shall cause to be
executed, acknowledged, and delivered to City such instruments as
Director shall prescribe and approve transferring and conveying the
ownership of such property to City.
13.20.150 CONSTRUCTION AND MAINTENANCE.
A. Methods of construction, installation, maintenance and repair of any
Facilities shall comply with the most current editions of the Zoning Codes,
Building Codes, Excavation Codes, Construction Codes, Plumbing Codes,
National Electrical Safety Code, the National Electric Code, the codes, the
City- adopted Public Works Construction Standards, Specifications, and
Plans, the Municipal Code, as they are modified from time to time, and
any applicable Federal, State or local statutes, regulations, guidelines, or
requirements.
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B. All construction, installation, maintenance and repair shall treat the
aesthetics of the property as a priority and shall not substantially affect the
appearance or the integrity of any structure.
C. Company shall place all above - ground active and passive equipment in
flush mounted or low profile waterproof pedestals whose design, size,
location, color within manufacturer's specifications, appearance, and
placement have been previously approved by the Director in writing and
shall be in conformity with the code and all applicable City ordinances,
regulations, rules, and guidelines.
D. Cabinet Treatment and Graffiti Mitigation. The exterior of AGFs shall
resist graffiti or be painted with anti - graffiti paint and be maintained in a
"like -new" condition. Nothing in this subsection shall require Company to
treat or paint an AGF with a material that invalidates the AGF's warranty.
Applications for AGF's must include a Graffiti Mitigation Plan detailing how
Company will maintain the AGFs free from graffiti and other defacements
(i.e. stickers, posters, decals, and other markings). The Graffiti Mitigation
Plan shall commit to the AGFs' inspection at least two (2) times a year and
shall include identification of the resources dedicated to mitigating graffiti.
Additionally, the Graffiti Mitigation Plan shall provide the name, mailing
address, phone number, and e-mail address of a single point of contact
responsible to resolve graffiti issues should they occur. The Graffiti
Mitigation Plan shall clearly state that graffiti shall be removed within 48
hours of the time at which Company is notified of graffiti and that the
AGFs' surfaces shall be restored to their original exterior appearance.
E. Each visible Facility installed in the PROW shall be clearly identified with
the name of the owner of the Facility and a toll -free telephone number for
Company. The Department shall adopt orders or regulations to specify
other appropriate methods for identification.
F. During construction and maintenance, Company shall identify its
construction sites by name and category (i.e., "Telecommunications" or
"Electricity ") with sufficient clarity so that traffic flowing in both directions
can determine the nature of the project and the entity upon whose behalf
the construction is being undertaken.
G. Company assumes all responsibility for damage or injury resulting from
the maintenance of any aboveground component. If Company fails to
comply with any written Director's demand relating thereto, the City may
perform said work and withdraw its costs and expenses from the Security
Fund or other security provided by Company.
H. Deviation Procedure for Nonconforming Situations.
1. In instances where Company cannot conform to any of the
regulations of this Chapter, Company may apply for a deviation.
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2. A request for a deviation shall be submitted and approved by the
Director prior to the submittal of any permit for installation of any
Facilities.
3. The deviation will be reviewed and a determination made by the
Director.
4. A deviation request shall be submitted by letter form to the Director
and contain the following:
(a) An exhibit showing the proposed location and type of
Facilities to be installed.
(b) The names and telephone numbers of any property owner,
tenant or home owners association that may be affected by
the deviation request.
(c) Documentation that any property owner, tenant, or home
owners association that may be affected by the deviation
request has been contacted and informed about the
deviation request.
(d) A detailed explanation and justification for the proposed
deviation request and references to the appropriate
section(s) of this Chapter which relief is being requested.
5. A deviation shall be reviewed and a determination made based on
whether all of the following findings can be made:
(a) That the proposed request is in the best interest of the
general welfare; and
(b) That the proposed request cannot conform to the regulations
of this Chapter due to extenuating circumstances beyond the
control of Company, such as but not limited to: (1) existing
location of utilities from another utility provider; or (2) existing
conditions which prohibit installation (e.g., walls /fences or
existing structures).
(c) That the proposed request does not cause the accumulation
of Facilities in close proximity or otherwise detrimentally
impact the PROW.
13.20.160 CONSTRUCTION DEFAULT.
A. Upon the failure, refusal or neglect of Company to cause any construction,
repair, or to comply with the terms of any permit thereby creating an
adverse impact upon public safety or convenience, Director may (but shall
22
not be required to) cause such work to be completed in whole or in part,
and upon so doing shall submit to Company an itemized statement of
costs. The Company shall be given reasonable advance notice of
Director's intent to exercise this power, and a reasonable opportunity to
cure the default. The Company shall, within forty -five (45) days of billing,
pay to City the actual costs incurred. The City may deduct amounts not so
timely paid from the Security Fund, performance bonds or any deposit.
B. Whenever construction is being performed in a manner contrary to the
provisions of this Chapter, the Director may order the work stopped by
notice served on any Person or Company engaged in or causing the
construction. Any work stopped shall not resume until authorized in writing
by the Director.
13.20.170 CITY VACATION OR ABANDONMENT.
In the event any PROW or portion thereof used by Company shall be vacated by
the City for a governmental purpose, upon reasonable notice Company shall
forthwith remove its Facilities from the PROW unless specifically permitted to
continue. As a part of the removal, Company shall restore, repair or reconstruct
the area where the removal has occurred, to a condition as may be required by
the Director, but not in excess of the original condition. In the event of any failure,
neglect or refusal of Company, after thirty (30) days notice by the Director, to do
such work, Director may cause it to be done, and Company shall, within forty-five
(45) days of billing, pay to City the actual costs incurred.
13.20.180 FACILITIES AGREEMENTS.
No PROW permit shall relieve Company of any obligations involved in obtaining
pole or conduit space from any department of City, any utility company, or from
others maintaining utilities in City's PROW.
13.20.190 SYSTEM LOCATION DATA.
To the extent available, Company shall provide the Director with data in a digital
or other format specified by the Director which details and documents all the
geographic locations of Facilities located in PROW within the project site. The
computer disk or other record shall be updated whenever there have been
significant changes in the location of the Facilities or at the Director's discretion.
Prior to disclosing this information to any party, the City shall notify Company and
shall endeavor not to disclose system location data to the extent the system
location data is exempt under federal or state law or regulation for national
security reasons. In addition, Company shall maintain in its local office a
complete, fully- dimensioned, and up -to -date set of as -built system maps and
drawings upon completion of construction. As -built drawings shall show all
Facilities. The scale of maps and drawings shall be sufficient to show the
required details in easily readable form and size.
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13.20.200 INDEMNITY.
To the maximum extent permitted by applicable law, Company shall at all times
defend, indemnify, protect, save harmless, and exempt the City, the City Council,
its officers, agents, servants, attorneys and employees, from any and all,
penalties, damages or charges arising out of claims, suits, demands, causes of
action, award of damages, imposition of fines and penalties, whether
compensatory or punitive, or expenses arising there from, either at law or in
equity, which arise out of, or are caused by, the construction, erection, location,
performance, operation, maintenance, repair, installation, replacement, removal
or restoration of Facilities within the City based upon any act or omission of
Company, its agents or employees, contractors, subcontractors, independent
contractors, or representatives except for that which is attributable to the active
negligence or willful misconduct of the City, the City Council, its officers, agents,
servants, attorneys and employees. With respect to the penalties, damages or
charges referenced herein, reasonable attorneys' fees, consultants' fees, and
expert witness fees are included as those costs which shall be recovered by the
City.
13.20.210 LIABILITY INSURANCE.
A. Except as provided in or as supplemented by any franchise agreement,
license or permit, Company shall secure and maintain public liability,
property damage insurance, and umbrella coverage in at least the
following amounts:
1. Public liability: Two (2) million dollars per person /per occurrence;
2. Property Damage: Two (2) million dollars per any one claim;
3. Umbrella liability: Five (5) million dollars.
B. The public and personal liability and property damage insurance policy
shall specifically include the City, the City Council, its employees, and
agents as additional insureds.
C. The public and personal liability and property damage insurance policies
shall be issued by an agent or representative of an insurance company
licensed to do business in the State and which has one of the three
highest or best ratings from the Alfred M. Best Company.
D. The public liability and property damage insurance policies shall contain
an endorsement obligating the insurance company to furnish the Director
with at least thirty (30) days written notice in advance of the cancellation of
the policy.
E. Renewal or replacement policies or certificates shall be delivered to the
Director at least fifteen (15) days before the expiration of the required
insurance under this Chapter.
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F. Before Company commences any construction in the PROW, Company
shall deliver the policies or certificates representing the insurance to the
Director as required herein.
G. The City's Risk Manager may in his /her discretion, adjust the coverage
amounts specified in Paragraph (A) of this Section or authorize Company
to self- insure provided that the Risk Manager deems that the adjustments
result in Company meeting or exceeding the coverage specified in this
Section.
13.20.220 FAILURE OF THE CITY TO ENFORCE THIS CHAPTER.
A Company shall not be excused from complying with any of the requirements of
this Chapter, or any subsequently adopted amendments to this Chapter, by any
failure of the City on any one or more occasions to seek, or insist upon,
compliance with such requirements or provisions.
13.20.230 COMPANY OR ITS ASSIGNEES SUBJECT TO PRESENT AND
FUTURE ORDINANCES AND /OR RESOLUTIONS.
A. Any Company, its assignee, or transferee shall be subject to, and
expected to comply with, all applicable lawful codes and /or resolutions
now or hereafter adopted and in effect within the City, including this
Chapter, to the extent that said Company has not received an exemption
or relief from the code(s) and /or resolution(s).
B. Any Company, its assignee, or transferee shall be subject to all federal
and State laws and with all rules and regulations issued by all applicable
regulatory agencies now or hereafter in existence.
13.20.240 NOTICES.
Director and Company shall provide the other with the name and address of the
contact designated to receive notices, filings, reports, records, documents and
other correspondence. All notices shall be delivered to each party's contact by
certified mail, return receipt requested, personal service with a signed receipt of
delivery, overnight with receipt verification, or facsimile. All other filings, reports,
records, documents and other correspondence may be delivered by any legally
permissible means including, but not limited to, facsimile transmission, personal
service, overnight mail, or package delivery. The delivery of all notices, reports,
records and other correspondence shall be deemed to have occurred at the time
of postmark unless otherwise designated by State law.
13.20.245 SEVERABILITY.
If any word, phrase, sentence, part, section, subsection, or other portion of this
Chapter, or any application thereof to any person or circumstance is declared
void, unconstitutional, or invalid for any reason, then such word, phrase,
25
sentence, part, section, subsection, or other portion, or the proscribed application
thereof, shall be severable, and the remaining provisions of this Chapter, and all
applications thereof not having been declared void, unconstitutional or invalid,
shall remain in full force and effect.
State laws, federal laws or Franchise rights will prevail over any sentence, clause
or phrase of this ordinance that is held to be unconstitutional or otherwise invalid
because of such state law, federal law or Franchise right. Such decision shall not
affect the validity or applicability of the remaining provisions of this ordinance.
13.20.250 ADMINISTRATION - DECLARATION OF POWERS AND
AUTHORITY.
A. Director is designated the officer of the City who is responsible for the
continuing administration of this Chapter.
B. Unless prohibited by federal, State or local law, the Director may further
delegate his /her powers and authority to a duly authorized representative
with respect to administering this Chapter.
13.20.260 REVOCATION AND TERMINATION.
In addition to all other rights and powers retained by the City, upon reasonable
written notice and an opportunity to cure, as provided in Section 13.20.290, the
Director shall have the right to revoke any PROW permit granted hereunder and
to terminate all rights and privileges of the PROW permit hereunder in the event
of the following:
A. Violation of any material provision of the PROW permit;
B. The failure to begin or complete construction as provided under the
PROW permit;
C. Failure to pay any PROW permit Fee or other payment required by any
PROW permit granted pursuant to this Chapter, to the City when due.
13.20.270 APPEALS FROM ACTION OF THE DIRECTOR.
If Company is aggrieved by any decision of the Director under this Chapter,
Company may appeal the decision to the City Manager by filing with the City
Clerk a statement addressed to the City Manager setting forth the facts and
circumstances regarding the Director's decision and the basis for the appeal. The
appeal shall be accompanied by a fee as established by Resolution of the City
Council. The City Manager, not less than ten (10) days from the date on which
the appeal was filed with the City Clerk, shall hear the appeal and all relevant
evidence, and shall determine the merits of the appeal. The City Clerk shall
provide written notification of the time and place set for hearing the appeal. The
City Manager may sustain, overrule or modify the action of the Director, and
decision of the City Manager shall be final.
The right to appeal to the City Manager shall terminate upon the expiration of ten
(10) days following personal delivery to Company or the deposit of a letter in the
United States mail advising Company of the action of the Director and of the right
to appeal such action to the City Manager.
13.20.275 POSSESSORY INTEREST.
By accepting any PROW permit granted pursuant to this Chapter, Company
acknowledges that notice is and was hereby given to Company pursuant to
California Revenue and Taxation Code Section 107.6 that the use or occupancy
of any Public Property may cause certain taxes to be levied upon such interest.
Company shall be solely liable for, and shall pay and discharge prior to
delinquency, any and all possessory interest taxes or other taxes levied against
its right to possession, occupancy or use of any PROW or Public Property
pursuant to any right of possession, occupancy or use created by any PROW
permit.
13.20.280 CITY'S OBLIGATION.
In enforcing this Chapter, City is assuming an undertaking only to promote the
general welfare. It is not assuming, nor is it imposing on its officers and
employees, and obligation for breach of which it is liable in money damages to
any Person who claims that such breach proximately caused injury.
13.20.290 OPPORTUNITY TO CURE AND CORRECT.
A. Not more than fourteen (14) days following receipt of written notice by
Director, or such shorter period as may otherwise be provided in this
chapter, Company shall cure and correct any violation of this Chapter. If
Company has commenced the cure of the noticed violation and cannot
cure and correct the noticed violation within the required time period, the
Director shall, grant additional time as the Director determines is
reasonably necessary for Company to cure and correct.
B. Failure by Company to cure and correct violations of this Chapter shall
subject Company to revocation or retention of financial security provided
within Section 13.20.130 or permit termination or revocation pursuant to
Section 13.20.260.
SECTION 2: This Chapter shall become effective thirty (30) days subsequent to
its adoption.
SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of
this Ordinance. The City Clerk shall cause the same to be published once in the
official newspaper within fifteen (15) days after its adoption.
27
This Ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 25th day of May, 2004, and adopted on the 8th day of
June, 2004, by the following vote, to -wit:
AYES, COUNCILMEMBERS.
Heffernan, Rosansky,
Adams, Bromberg, Webb, Nichols, Mayor Ridgeway
NOES,COUNCILM EMBERS None
ABSENT, COUNCILMEMBERS None
MAYOR
ATTEST:
STATE OF CALIFORNIA }
COUNTY OF ORANGE
CITY OF NEWPORT BEACH }
I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do
hereby certify that the whole number of members of the City Council is seven; that the foregoing
ordinance, being Ordinance No. 2004 -9 was duly and regularly introduced before and adopted by the
City Council of said City at a regular meeting of said Council, duly and regularly held on the 8th day
of June 2004, and that the same was so passed and adopted by the following vote, to wit:
Ayes: Heffernan, Rosansky, Adams, Bromberg, Webb, Nichols, Mayor Ridgeway
Noes: None
Absent: None
Abstain: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 9th day of June 2004.
(Seal)
��/Pa'L" & ?
City Clerk
City of Newport Beach, California
CERTIFICATE OF PUBLICATION
STATE OF CALIFORNIA }
COUNTY OF ORANGE } as.
CITY OF NEWPORT BEACH }
I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby
certify that Ordinance No. 2004 -9 has been duly and regularly published according to law and the
order of the City Council of said City and that same was so published in The Daily Pilot, a daily
newspaper of general circulation on the following date, to wit: June 12, 2004.
2004.
In witness whereof, I have hereunto subscribed my name this -Y/sr day of �� n
City Clerk
City of Newport Beach, California