Loading...
HomeMy WebLinkAbout20 - Public Right-of-Way OrdinanceCity Council Meeting May 11, 2004 Agenda Item No. 20 Supplemental Report CITY OF NEWPORT BEACH MEMORANDUM TO: Mayor and Members of the City Council City Manager FROM: Dave Kiff, Assistant City Manager DATE: May 7, 2004 RE: PROW Ordinance Revisions Please consider the attached version of the Public Right of Way Ordinance the correct version for your consideration on Tuesday night. The major changes between this version and the one that went out on Wednesday are: • Change back from a 3 -year street cut moratorium to a 5 -year street cut moratorium in 13.20.100 (E). Five years is our current practice is; • Clarification of municipal activities versus any governmental activities in 13.20.090 (D); and • Clarification of what fees are involved when a PROW Permit is authorized, especially as it relates to Blanket Permits. • A correction of typographical errors and removal of a few misplaced words. City Hall • 3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92659 -1768 ORDINANCE NO. 2004- 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 public right -of -way 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. "City" shall mean the City of Newport Beach. "Chapter" unless otherwise specified, shall mean this Chapter 13.20 of the Newport Beach Municipal Code. "Code" shall mean the City of Newport Beach Municipal Code. 2 "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 the 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 the Company's lawful successors, transferees, or assignees. "Company Manager" shall mean an employee of the Company who is designated by the Company in writing to City to be the contact person for the Company in accordance with the provisions of this chapter. "Construction Plan" shall mean a plan that describes in detail the designs, locations, and an estimated time schedule for the facilities. "Consultant" shall mean the entity hired by the Company under the supervision of City to inspect construction or to locate utilities, or to provide technical assistance. "Director" or "Public Works Director" shall mean the Director of the City's Department of Public Works or his or her designee. "Easement" shall mean and shall include any public easement or other similar property interest created by grant or dedication, or by other means. "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 a Company to provide services, excluding antennas that are located or are proposed to be located on the PROW. "Federal Communications Commission" or "FCC" shall mean the Federal Communications Commission of the United States Government. "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. "Person" shall mean any natural person, business, firm, corporation, estate, trust, partnership, or other business entity, association, or any other legal entity. "Power Supply" shall mean an electric or gas driven device designed to provide electrical power. 3 "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. "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. "Surplus Space" shall mean that portion of usable space on a utility pole or other Facilities which has the necessary clearance from other users, as required by the orders and regulations of the CPUC to allow its use by a Company. "System" shall mean a consolidated, connected, or networked group of Facilities that deliver or provide a service. "Telecommunications Act or (TCA)" shall mean the Telecommunications Act of 1996. "Termination" shall mean an official act by City that removes, repeals or rescinds previously approved authorization for a Company to operate Facilities within City. "Traffic Control Plan" shall mean a plan describing the manner in which a Company will manage vehicle, bicycle, and pedestrian traffic along affected Streets when installing or maintaining Facilities. "Usable Space" shall mean the total distance between the top of a utility pole and the lowest possible attachment point that provides the minimum allowable vertical clearance on the pole or affecting light standards, traffic signals, or other 0 municipal improvements as specified in the orders and regulations of the CPUC and any other federal, state, or local requirements. "Utility Purposes" shall mean one or more public utilities services provided through one or more Facilities. "Utility Pole" or "Utility Line" shall mean an upright structure and connecting cables that conveys a Service. 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 the Company's facilities underground on a cost - sharing basis for all companiesinvolved 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 (AFG). 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 AFG 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 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, a 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 a Company, or the activities of a 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 P 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 the Company. If the application is made by an authorized agent of the 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 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. 9 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. Copies of certification(s), license, permits, franchise or other applicable approvals for the Company has obtained all other governmental approvals and permits to construct and operate the facilities and to offer or provide the services and a certification that the Company will comply with all applicable local state and federal requirements in the installation, operation, maintenance, 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 the Company's facilities. I. 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 completed application and a determination by the Director that the 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 the 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. 7 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 a 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, the 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 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 the 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 E:3 jurisdictional responsibility' over activities in the public right -of -way. 13.20.080 CONSTRUCTION PLAN. A. Submittal Requirements. Not less than thirty (30) days prior to proposed commencement of any work in the PROW, a Company shall submit to the Director for his or her review a construction plan containing the following information: 1. Date for Work Completion. The 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 proposed 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 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. E B. Emergency Excavation. Nothing contained in this Section shall be construed to prevent a Company from taking any action necessary for the preservation of life or property or for the restoration of interrupted service provided by a Company when such necessity, arises during days or times when the Department is closed. In the event that a Company takes any action to excavate or cause to be excavated the public right -of -way pursuant to this section, the 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 a 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. 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 a 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 a Company creates a hazardous or unsafe condition or an unreasonable interference with property, such Company shall remove or its] modify that part of the Facility to eliminate such condition from the subject property. C. A 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. A 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 the 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 governmental facilities such as, without limitation, sewers, drains, water pipes, storm drains, lift stations, force mains, communications for the City's internal utilization, power or signal lines, and any traffic control system which are owned /controlled or will be owned /controlled by City or any special district; or 7. Any public improvement, construction or repair or any improvement related to a municipal purpose. E. It shall be the responsibility of a 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. The 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 public right -of -way pursuant to this chapter shall be performed in accordance with this chapter and with the 11 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. Any Company who excavates or causes to be made an excavation in the public right -of -way in a manner that due to duration or location of the excavation has the potential to disrupt traffic flow or adjacent properties, the Director may require reasonable notice as follows: 1. Post and maintain notice at the site of the excavation. The notice shall include the name, telephone number, and address of the 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, the 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, the 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, the 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 the 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. D. Marking of Sub - Surface Facilities. Any Company excavating in the public right -of -way shall comply with the requirements of the underground service location regarding notification of excavation and marking of subsurface facilities. The Company shall provide underground service location with the assigned number for the permit to excavate or other 12 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 any Company to make, to cause, or permit to be made, any excavation in the public right -of -way 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 public right -of -way 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. A 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. Each Company shall cover open excavation with non -skid steel plates ramped to the elevation of the contiguous street, pavement, or other public right -of -way, or otherwise protected in accordance with guidelines prescribed by the Department. 2. Housekeeping and removal of excavated material. Each 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, the Company shall remove all excavated 13 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. A 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 the 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 the 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 the 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 public right -of -way is or is caused to be excavated, the 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. 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 14 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 department of replacement of the pavement base, 3. Modification to requirements. Upon written request from the 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 the Company to complete the excavation as directed within twenty -four (24) hours, If the 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 the 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 the Company from liability for future pavement failures at the excavation site. 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 public right -of -way 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 W 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 public right -of -way 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 public right - of -way. 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 the 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 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 16 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 the 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 public right -of -way 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 a 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 decline to disclose any information that the Company has not identified on its face as proprietary, trade secret or otherwise protected from disclosure. The Department shall notify a 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 li V proprietary, trade secret or protected from disclosure. The Department shall consult with the City Attorney regarding any such request and shall inform the 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 public right -of -way. 13.20.130 FINANCIAL SECURITY AND FEES. A. Security Fund. 1. Prior to the Effective Date of any PROW Permit, the Director may require the 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 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. lit-] 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 the 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 the 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 the 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, the 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 the 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 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 19 Permits under the provisions of this chapter. D. Inspection Fee. To verify that a 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, a 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 the 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 PROW Permit; or 3. The Company's PROW Permit is revoked. B. If not removed voluntarily by a Company, then the Director may notify the 20 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 Financial Security 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 the 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, the 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 the 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 the Company, approve the abandonment of any property in place by the Company under such terms and conditions as the Director may approve. Upon Director - approved abandonment of any property in place, the 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. 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. 21 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 prior approved by the Director in writing and shall be in conformance 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 a Company to treat or paint an AGF with a material that invalidates the AGF's warrantee. 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 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 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 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 the 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 the 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. 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. 22 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 the 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 not be required to) cause such work to be completed in whole or in part, and upon so doing shall submit to the 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 23 forty -five (45) days of billing, pay to City the actual costs incurred. The City may deduct amounts not so timely paid from the Performance Bonds or 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 the Company shall be vacated by the City for a governmental purpose, upon reasonable notice the Company shall forthwith remove its facilities from the PROW unless specifically permitted to continue. As a part of the removal, the 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 the Company, after thirty (30) days' notice by the Director, to do such work, Director may cause it to be done, and the 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 the 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, the 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. In addition, the 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. 13.20.200 INDEMNITY. To the maximum extent permitted by applicable law, a 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 24 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 a Company, its agents or employees, contractors, subcontractors, independent contractors, or representatives except for that which is attributable to the sole 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, a 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 insurance which such policies are to renew or be replaced. F. Before a Company commences any construction in the PROW, the 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 a 25 Company to self- insure provided that the Risk Manager deems that the adjustments result in the 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. Both the Director and each 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, 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. W, 13.20.250 ADMINISTRATION - DECLARATION OF POWERS AND AUTHORITY. A. The Director is designated the officer of the City that 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 a Company is aggrieved by any decision of the Director under this Chapter, the 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 the Company or the deposit of a letter in the United States mail advising the 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 27 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 less than fourteen (14) days following receipt of written notice by Director, Company shall cure and correct any violation of this Chapter. In the event that Company cannot cure and correct any violation of this Chapter within fourteen (14) days, Director may, at Director's discretion, grant additional time 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: That if any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, clause or phrase hereof, irrespective of the fact that any one to more sections, subsections, sentences, clauses and phrases be declared unconstitutional. SECTION 4: 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. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 11th day of May, 2004, and adopted on the 25th day of May, 2004, by the following vote, to -wit: AYES, COUNCILMEM W NOES,COUNCILMEMBERS ABSENT, COUNCILMEMBERS MAYOR ATTEST: CITY CLERK F: \u sers \cat \shared \da \O rdi nance \I nstallUtil FacP RO W\050404.doc qj CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 20 May 11, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager 949/644 -3002 or dkiff(d ) city. newport- beach. ca. us Department of Public Works Steve Badum, Director 949/644 -3311 or sbadum(a)city.newport- beach.ca.us City Attorney's Office Robin Clauson, Assistant City Attorney 949/644 -3131 or rclauson (cilcity.newport- beach.ca.us SUBJECT: Public Right -of -Way Ordinance ISSUE: Should the City Council adopt a new ordinance that describes how utility and related companies access, use, and maintain facilities in the public right -of -way? RECOMMENDATION: 1. Introduce Ordinance No. 2004 - pertaining to use of the Public Right -of -Way; and 2. Pass to second reading on May 25, 2004. DISCUSSION: Background: When utility companies (gas, electricity, telephone, cable, and more) place their facilities (pipes, conduit, cables, vaults, control panels, etc) in a community to reach their customers, they put the facilities in publicly -owned land or publicly -held easements (called "rights -of- way'). Proposed Public Right -of -Way Ordinance May 11, 2004 Page 2 Title 13 of the Newport Beach Municipal Code governs construction and maintenance activities on streets, sidewalks, and other public property. The title discusses the role of the Department of Public Works in overseeing various activities like street paving, sidewalk cutting, and more. The Council Policy Manual's "L" section serves as guidelines to the Department when allowing for encroachments, improvements, curb cuts, and similar activities. Further, individual franchise agreements with utilities - like our agreements with Southern California Edison and the Gas Company - may have provisions describing the companies' and the city's obligations to maintain company facilities that lie in public areas. The City has never had a specific ordinance relating to how a utility company - like a gas or electrical company - would cut or trench, install facilities in, and repair and maintain city - controlled lands on or adjacent to public streets, alleys, trails and sidewalks. Other cities have enacted such ordinances and have used them to better protect the public's interest in keeping safe, well- maintained transportation facilities. As we prepared for the renewal of our cable television franchise agreements with Cox and Adelphia, we included regulations within our proposed Cable Communications Franchises Ordinance that addressed use of the public right -of -way ( "PROW "). Both cable companies suggested that the Cable Ordinance NOT include PROW regulations, because doing so might create an unlevel playing field for cable companies when compared to other utility providers that use the PROW. We agreed, and worked with the cable companies and other utilities to set forth a specific, separate PROW Ordinance. The proposed PROW Ordinance took aspects of the City's existing codes along with provisions contained within an American Public Works Association "Model PROW Ordinance." It also combines language within the City of Los Angeles' PROW ordinance and those of the City of Westminster to create what we believe is a complete and fair ordinance that will apply to all utility providers that use the PROW. An added complexity NOT thoroughly addressed within this proposed Ordinance is how to address antenna placement in the PROW. While the proposed Ordinance guides almost all utility installations underground, antennas by their nature must be above- ground. Some antenna installations can also include vaults and large cabinets that are cheaper to maintain and install above - ground, but may be more desirable from an aesthetic standpoint to be below - ground. Because we do not believe we have a thorough understanding of the issues surrounding antenna placement in the PROW, our intent is to amend our PROW Ordinance at a later date with appropriate regulations. Prior to such time, we have agreed to convene a small industry task force to examine the issue and prepare language with us. Committee Action: The Telecommunications Ad Hoc Committee has held two public meetings on this proposed Ordinance. At the Committee's direction, staff accepted and made modifications to the Ordinance based on Committee wishes, Special Counsel Bill Proposed Public Right -of -Way Ordinance May 11, 2004 Page 3 Marticorena's advice, and input via letter and direct testimony from utility companies, including SBC, Sempra Energy/The Gas Company, SCE, Adelphia, and Cox. In addition, wireless antenna placement companies provided their input as well. The version attached to this staff report has been revised at least three times based on Committee and company input with staff. Environmental Review: This Ordinance is exempt from environmental review under Class 1, which includes repair, permitting, leasing, and licensing of existing public facilities with no expansion of use. Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Submitted by: Dave 'ff Assistan City Manager Submitted by: of Public Works Attachments: Proposed PROW Ordinance Submitted by CL" Robin Clauson Assistant City Attorney J ORDINANCE NO.2004- 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 public right -of -way 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. "City" shall mean the City of Newport Beach. "Chapter" unless otherwise specified, shall mean this Chapter 13.20 of the Newport Beach Municipal Code. "Code" shall mean the City of Newport Beach Municipal Code. 2 "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 the 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 the Company's lawful successors, transferees, or assignees. "Company Manager" shall mean an employee of the Company who is designated by the Company in writing to City to be the contact person for the Company in accordance with the provisions of this chapter. "Construction Plan" shall mean a plan that describes in detail the designs, locations, and an estimated time schedule for the facilities. "Consultant" shall mean the entity hired by the Company under the supervision of City to inspect construction or to locate utilities, or to provide technical assistance. "Director" or "Public Works Director" shall mean the Director of the City's Department of Public Works or his or her designee. "Easement" shall mean and shall include any public easement or other similar property interest created by grant or dedication, or by other means. "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 a Company to provide services, excluding antennas that are located or are proposed to be located on the PROW. "Federal Communications Commission" or "FCC" shall mean the Federal Communications Commission of the United States Government. "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. "Person" shall mean any natural person, business, firm, corporation, estate, trust, partnership, or other business entity, association, or any other legal entity. "Power Supply" shall mean an electric or gas driven device designed to provide electrical power. 3 "Public Property" shall mean all real property and improvements owned, operated or c ontrolled by City, o ther t han public right of way, within t he C ity'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. "Public Right -of -Way" or "PROW" shall mean the improved or unimproved surface of and the space above and below an 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. "Surplus Space" shall mean that portion of usable space on a utility pole or other Facilities which has the necessary clearance from other users, as required by the orders and regulations of the CPUC to allow its use by a Company. "System" shall mean a consolidated, connected, or networked group of Facilities that deliver or provide a service. "Telecommunications Act or (TCA)" shall mean Telecommunications Act of 1996. "Termination" shall mean an official act by City that removes, repeals or rescinds previously approved authorization for a Company to operate Facilities within City. "Traffic Control Plan" shall mean a plan describing the manner in which a Company will manage vehicle, bicycle, and pedestrian traffic along affected Streets when installing or maintaining Facilities. "Usable Space" shall mean the total distance between the top of a utility pole and the lowest possible attachment point that provides the minimum allowable vertical clearance on the pole or affecting light standards, traffic signals, or other municipal improvements as specified in the orders and regulations of the CPUC and any other federal, state, or local requirements. "Utility Purposes" shall mean one or more public utilities services provided through one or more Facilities. "Utility Pole" or "Utility Line" shall mean an upright structure and connecting cables that conveys a Service. 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 the 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 (AFG). 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 AFG 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 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, a Company shall obtain a PROW Permit prior to performing any work in the PROW and shall pay all fees imposed in connection therewith. Blanket permits may be granted at the discretion of the Director to cover typical and routine construction, maintenance and repair activities. 13.20.050 EXEMPTION. To the extent a Company, or the activities of a Company are, by virtue of 5 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 the Company. If the application is made by an authorized agent of the 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 legally established right to use the PROW for the services to be provided. C. Excess C apacity. I f Company i s p roposing a n U nderground 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. a 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. Copies of certification(s), license, permits, franchise or other applicable approvals for the Company has obtained all other governmental approvals and permits to construct and operate the facilities and to offer or provide the services and a certification that the Company will comply with all applicable local state and federal requirements in the installation, operation, maintenance, 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 the 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 P ROW Permit s hall b e p romptly i ssued u pon review of a completed application and a determination by the Director that the 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 the 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. 7 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 o r w hich 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 a 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 Directors 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, the 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 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 the 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 d uration of the excavation and shall be shown, upon request, to any police officer or any 93 employee of a City agency, board, commission, or department with jurisdictional responsibility' over activities in the public right -of -way. 13.20.080 CONSTRUCTION PLAN. A. Submittal Requirements. Not less than thirty (30) days prior to proposed commencement of any work in the PROW, a Company shall submit to the Director for his or her review a construction plan containing the following information: 1. Date for Work Completion. The 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 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 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 commencement of a ny construction activities which may i nterfere 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 a dverse i mpact to the C ity's u se o r o perations o r t he u se o r operations of a third party caused by Company construction activities in the PROW at no cost to the City. Safety violations will Iv be cause for immediate project shut -down. B. Emergency Excavation. Nothing contained in this Section shall be construed to prevent a Company from taking any action necessary for the preservation of life or property or for the restoration of interrupted service provided by a Company when such necessity, arises during days or times when the Department is closed. In the event that a Company takes any action to excavate or cause to be excavated the public right -of -way pursuant to this section, the 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 a 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. 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 a 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 a Company creates a hazardous or unsafe condition or an 10 unreasonable interference with property, such Company shall remove or modify that part of the Facility to eliminate such condition from the subject property. C. A 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, 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. A 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 the 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 governmental facilities such as, without limitation, sewers, drains, water pipes, storm drains, lift stations, force mains, communications for the City's internal utilization, power or signal lines, and any traffic control system which are owned /controlled or will be owned /controlled by any governmental entity; or 7. Any public improvement, construction or repair or any improvement related to a governmental purpose. E. It shall be the responsibility of a 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. The 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 public right -of -way pursuant to this chapter shall be performed in accordance with this chapter and with the 11 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. Any Company who excavates or causes to be made an excavation in the public right -of -way in a manner that due to duration or location of the excavation has the potential to disrupt traffic flow or adjacent properties, the Director may require reasonable notice as follows: 1. Post and maintain notice at the site of the excavation. The notice shall include the name, telephone number, and address of the 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, the 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 n umber of a person who w ill b e a vailable to p rovide 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, the Company also shall deliver a written notice to each dwelling u nit o n t he block(s) a ffected by t he a xcavation. This w ritten 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, the 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 the 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. D. Marking of Sub - Surface Facilities. Any Company excavating in the public right -of -way shall comply with the requirements of the underground service location regarding notification of excavation and marking of subsurface facilities. The Company shall provide underground service location with the assigned number for the permit to excavate or other 12 �J 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 any Company to make, to cause, or permit to be made, any excavation in the public right -of -way 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 public right -of -way 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 three (3) 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 w aiver f or a n e xcavation t hat facilitates t he d eployment o f n ew 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 Directors decision regarding a waiver shall be final. F. Excavation Sites. A 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. Each Company shall cover open excavation with non -skid steel plates ramped to the elevation of the contiguous street, pavement, or other public right -of -way, or otherwise protected in accordance with guidelines prescribed by the Department. 2. Housekeeping and removal of excavated material. Each 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, the Company shall remove all excavated 13 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. A 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 the 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 the 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 the 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 public right -of -way is or is caused to be excavated, the 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. 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 14 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 department of replacement of the pavement base, 3. Modification to requirements. Upon written request from the 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 the Company to complete the excavation as directed within twenty -four (24) hours, If the 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 a nd 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 the Company's Security F and p ursuant to S ection 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 the Company from liability for future pavement failures at the excavation site. 13.20.110 POST - EXCAVATION REPAIR AND MAINTENANCE. A. Repair and Maintenance Obligation of Companv. Each Company that excavates or causes to be made an excavation in the public right -of -way 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 15 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 public right -of -way 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 public right - of -way. 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 the 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 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 16 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 the 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 a nticipated to be done i n the public right -of -way i n the next two (2) years. Any company that does not prepare a two (2) year plan shall submit a plan with 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. Otherwise 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 a 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 decline to disclose any information that the Company has not identified on its face as proprietary, trade secret or otherwise protected from disclosure. The Department shall notify a 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. it1 %J The Department shall consult with the City Attorney regarding any such request and shall inform the Company either that the Department will refuse to d isclose 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 o pportunities 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 public right -of -way. 13.20.130 FINANCIAL SECURITY AND FEES. A. Security Fund. 1. Prior to the Effective Date of any PROW Permit, the Director may require the 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 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 the.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 the 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 the 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, the 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 a bove, p rior to i ssuance of any P ROW Permit, D irector 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 the 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 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 permit under the provisions of this chapter. 19 D. Inspection Fee. To verify that a 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, a 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 the 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 PROW Permit; or 3. The Company's PROW Permit is revoked. B. If not removed voluntarily by a Company, then the Director may notify the Company that should removal of the property not be accomplished within 20 Z3 a reasonable time specified by the Director, the Director may order the removal of the facilities at that Company's expense. The Financial Security 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 the 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, the 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 the Company. The Company shall provide a written list to the D irector of a II d eactivated f acilities I ocated w ithin t he C ity 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 the Company, approve the abandonment of any property in place by the Company under such terms and conditions as the Director may approve. Upon Director - approved abandonment of a ny property in place, the 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. 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 s hall p lace all a bove - ground a ctive a nd p assive a quipment i n 21 �I flush mounted or low profile waterproof pedestals whose design, size, location, color within manufacturer's specifications, appearance, and placement have been prior approved by the Director in writing and shall be in conformance 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 a Company to treat or paint an AGF with a material that invalidates the AGF's warrantee. 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 Plan shall commit to the AGFs' inspection at least twice (2) a year and shall include identification of the resources dedicated to mitigating graffiti. Additionally, the 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 Plan shall clearly state that graffiti shall be removed within 48 hours of the time at which Company is notified o f g raffiti a nd that t he A GFs' s urfaces s hall b e restored to t heir 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 the 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 the 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. 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 `tea 1� < 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 the 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 not be required to) cause such work to be completed in whole or in part, and upon so doing shall submit to the 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 M, City may deduct amounts not so timely paid from the Performance Bonds or 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 the Company shall be vacated by the City for a governmental purpose, upon reasonable notice the Company shall forthwith remove its facilities from the PROW unless specifically permitted to continue. As a part of the removal, the 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 the Company, after thirty (30) days' notice by the Director, to do such work, Director may cause it to be done, and the 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 the 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, the 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 an area of 0.25 miles o f the project s ite. The c omputer d isk o r o ther record s hall b e u pdated whenever there have been significant changes in the location of the facilities or at the Directors discretion. In addition, the 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. 13.20.200 INDEMNITY. To the maximum extent permitted by applicable law, a 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, 24 performance, operation, maintenance, repair, installation, replacement, removal or restoration of facilities within the City based upon any a ct o r o mission of a Company, its agents or employees, contractors, subcontractors, independent contractors, or representatives except for that which is attributable to the sole 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, a 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 I east fifteen (15) d ays before the expiration of the i nsurance which such policies are to renew or be replaced. F. Before a Company commences any construction in the PROW, the 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 a Company to self-insure p rovided that the Risk M anager d eems that the adjustments result in the Company meeting or exceeding the coverage 25 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 C ompany, its a ssignee, o r t ransferee s hall b e s ubject to a II 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. Both the Director and each 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, 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. 13.20.250 ADMINISTRATION - DECLARATION OF POWERS AND AUTHORITY. A. The Director is designated the officer of the City that is responsible for the 26 )01 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 toad ministering 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 a Company is aggrieved by any decision of the Director under this Chapter, the 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 the Company or the deposit of a letter in the United States mail advising the 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 27 ;G its right to possession, occupancy or use of any PROW or public property pursuant to any rightof 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 less than fourteen (14) days following receipt of written notice by Director, Company shall cure and correct any violation of this Chapter. In the event that Company cannot cure and correct any violation of this Chapter within fourteen (14) days, Director may, at Director's discretion, grant additional time 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: That if any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, clause or phrase hereof, irrespective of the fact that any one to more sections, subsections, sentences, clauses and phrases be declared unconstitutional. SECTION 4: 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. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 11th day of May, 2004, and adopted on the 25th day of May, 2004, by the following vote, to -wit: AYES, COUNCILMEMBERS NOES,COUNCILMEMBERS W �l ABSENT, COUNCILMEMBERS MAYOR ATTEST: CITY CLERK F:\users\cat\shared\da\Ordinance\lnstallUtilFacPROW050404.doc 29 :r m 1 O V a l'o -o -'; r\--e34 LM 0n �H I O A, CU m O CL a� z O O N r m 73 mo L U O AMA mc V am i/) O U E E O A u N U 0 .cn cn U L Lel u T 0 O 0 Q. E 0 1*1 .D • CO G O 'U O N U U U Q U) N C: U ' O � L O m U O � •L L z O U) E �O ° a w a_ Q U IJ ■ �A Ja 4=0 O A L V O X -in U i O� • W (/) O ~ O � O O O N � O U � U U CIO U) O O N U) a� U O Q � C O O N U O) O C Q c� • • • N� = U_ aD >,� >� C 0 00 O Q 4-j U -0 cn 0 a QO �� QC >� QN 0 �cn :� C-0 C O O O O j U Uj O to O.L— C/) -0 C i E uj OVE E —� O O cn 000 U M CD • • • c M 0 N Q C U C �•�N C cn +., -t U C QM C' c E U) OU O� O U) • • • • N� = U_ aD >,� >� C 0 00 O Q 4-j U -0 cn 0 a QO �� QC >� QN 0 �cn :� C-0 C O O O O j U Uj O to O.L— C/) -0 C i E uj OVE E —� O O cn 000 U M CD • • • V♦ 00 +rC=L L-m00 +r- 0- j cnc 0 C: c— N 0 E 0 0 0U�'�N -_ O 0 O 00 C jaC U O O .Z-; U) .E m O m � U) Q -0 C Q Cl) L LO U) }' N N O > W M r +r00 N =UC c N 00 +rC=L L-m00 +r- 0- j cnc 0 C: c— N 0 E 0 0 0U�'�N -_ O 0 O 00 C 0 O O O .Z-; U) L- a) -0 m � U) > -0 0a) a C oo U) a � 0 >0 +r00 N =UC O 0-0 Q(�C pm0 U c= �cva -cn O O "�OcU� fn fn��cR.OM0 M0 "a) 0Ln O�- Q�0 0 Q cn -0 0- c 0= U0Q U) 0 C: 0� �i 0-0•� O C= 4-1 •��CA s ■� 4=0 -J 4) mrm O I a LM V O ri, 0 J 'i U vJ O Q) U Q) OO 1 Chi U • _-�e cn O��O L � �_ > cn co � Q) L� 15 -E 0�00 U U Mcv co Qo� E�� NEOQO'o >L0)�O).0 - OOU�OU-O COQ �a c— .- o�Q5c �Eu)Ec cps �oc>,Q) N _ O O C U c cn C U o o co 0 U . U Q� co co > ��c �cn 0- M —� ocv�._ U cn X O:=cnQ) co co Vim:- m �Q"UrOco0L O co 0-O N CO >UE a�cUEcno LOOLcv•_OL c- a� U 0 c) co E � 0 a) M ~ U NL Q)COcnU0 Q o- O.C��0N�0cnU� Q -0 > � O �� ._ U >CO (n OL N•— L cn-cN LC:m U °a����U���C) -00- Q5 O L N-0 CO a) to Vp -•0 CO cn - E Q)Q-0 O -r- o -o Q) >N— co — — — � U � O O �.0 Q0 O " O 0 1 O� 0:• cn N W UOU —�w-� cv E >,�- U CQ��N N> � V% 2 ��. - m in L m -!= C cn o tnQ- o E-0 c E C oUCnoccn�O�OCO c�c- °c0OLU ,F-� r- >00 OEUCco�° 0�o000E (� 0>, 07 -c -0 cn ULcn� ONOOp.aO'tnNQ-a �p Q-V.- m N O 0, E:_ c Qm m EE MOQoLC�OXO. Q) cn ago 0 4-N �Ucn -0._. EQ)co -OUOL ••tr .! o o o �l L ■� FC s O U) L V i O 'u i, v! O � � U O N U O O VAI N 0 O U O N N X N r^n ^V '/ W^ CL .a ME N O O >N � ^W L u E U 4--O O u O O `VJ i U O O •U � 4 (a N •� O cn N Q. 4-1 O _N N • •• 0004. Z, •000('i u 4) s V LM 4) s lr•� u sv� cn icn c� V 1 L O U O .L c� cn n nw+ ,A A v i UL V V • Q. U 0 U N ^X' W i L iG 22,04 15:54 FR PACIFIC TEL`SiS SROUP9 235 9315 TO 194954-,._0_.S P.R,,i "RECE[V D AFTER AGEN A PV'11TED!' 2-o s f i I I C;q 101 WEST BROADWAY, SUITE 1300 SAN DIEGO, CALIFORNIA 92101 FAX TRANSMISSION DATE: May 10, 2004 TO: NAME FAX PHONE# The Honorable Tod W. Ridgeway City of Newport Beach 949 - 644 -3039 FROM: Lori Ortenstone (Phone) (619)237 -3329 (Fax) (619)238 -2318 RE: Proposed Ordinance Adding Chapter 13.20 to Title 13 of the Newport Beach Municipal Code pertaining to Use of Public Rights -of -Way Number of Pages, Including Cover! 4 MESSAGE: Please find attached Ms. Ortenstone's letter of today, May 10, 2004, in the above - mentioned matter. Thank you, Luis Zamora (619) 237 -2370 THE INFORMATION CONTAINED IN THIS FACSIMILE MAY BE CONFIDENTIAL, PROPRIETARY AND /OR LEGALLY PRIVILEGED INFORMATION INTENDED ONLY FOR TI -IE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE 15 NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY COPYING, DISSEMINATION, OR DISTRIBUTION OF CONFIDENTIAL OR PRIVILEGED INFORMATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATF,LY NOTIFY US BY TELEPHONE, AND WE WILL ARRANGE FOR THE RETURN OF THE FACSIMILE. THANK YOU. If you do notreceive all of the pages, PLEASE CALL Luis at (619) 237 -2370 as soon as possible. MAY 10 2 001 1E:51 =R FRC. =iC - =L��.F _..��_; � i �4S- -I4SI, F.�3 Sent Via Facsimile & U.S. Mail May 10, 2004 The Honorable Tod W. Ridgeway City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92658 -8925 Pacific Telesis Group i 0 1 W. Broadway Legai Department Suite 1300 San Diego CA 92101 -8214 Re: Proposed Ordinance Adding Chapter 13.20 to Title 13 of the Newport Beach Municipal Code pertaining to Use of Public Rights-of-Way Dear Mayor Ridgeway- During the past few months, we have had an opportunity to work with representatives from the City regarding the proposed rights -of -way ordinance ( "Ordinance "). Although a number of SBC's and the other utilities' concerns have been addressed, there are a few remaining issues with the Ordinance. First, some provisions of the Ordinance will only be enforced to the extent they are "feasible." For example Section 13.20.030.A. states that it is the "policy of City to promote undergrounding of facilities whenever and wherever Feasible," and Section 13.20.030.8. requires companies to "place all newly installed facilities underground or flush mounted vaults, whenever Feasible. " [Emphasis added.] The Ordinance defines "Feasible" as "capable of being accomplished in a successful manner within a reasonable period of time, taking into account environmental, physical, legal, and technological factors." Unfortunately, the definition does not include economic factors. This is an unrealistic and unreasonable limitation on feasibility. Almost any undertaking is technologically or physically feasible if cost is not a factor. Economic criteria should therefore be added to the definition of feasible. Section 13.20.060.H. presents a related issue. This section requires utilities to "first seek to use technically compatible excess capacity of other Companies" before constructing their own facilities in the public rights -of -way. Under this section, a utility would be forced to use conduit owned by a third party even if the cost to do so is double or triple the cost of construction. Again, there should economic limits to this requirement. Second, Section 13.20.200 requires SBC to indemnify the City for all liability arising out SBC's use of the public rights -of -way except for claims "attributable to the sole negligence or willful misconduct of the City." This means that SBC will be responsible for all damages arising from an incident even if the City is 99 % at fault. Under current M:1'; i0 ?004 i5.5 . --P P1,_:FiC TELE'S;S 13 P0UF9 22 0 cc:-1 TO __, --_ ...''9 � .09 The Honorable Tod W. Ridgeway May 10, 2004 Page 2 law, the City cannot condition SBC's use of the public rights -of -way on S13C agreeing to indemnify the City for the City's own negligence. SBC has a right created by the legislature to access the public streets throughout the State of California. The only statutory limitation on that right is that the construction of telephone lines must be done "in such manner and at such points as not to incommode the public's use of the road or highway or interrupt the navigation of the waters." (Public Utilities Code § 7901.) While municipalities may use their police powers to enforce section 7901 "incommoding' restrictions, these police powers are limited: "because of the state concern in communications, the state has retained to itself the broader police power of granting franchises, leaving the municipalities the narrower police power of controlling location and manner of installation." (Pac. Tel & Tel Co v City & Co San Francisco, supra' at 152; see also Public Utilities Code § 7901. 1.) Requiring SBC to indemnify the City for the City's own negligence is not a proper exercise of the City's police power rights. (22 Op. Any Gen. 6 (1952) (State agency cannot require the phone company to hold the State harmless or assume liability for any damage which occurs by reason of the operation of the company's facilities over State rights -of -way) citing In re Johnson 137 Cal. 115, 120 (1905) (additional requirements which are not a proper exercise of the police power cannot be laid down by a governmental agency when an unconditional right is granted by the Legislature).) We therefore ask the City to change this section to require SBC to indemnify the City only to the extent that the liability does not arise out of the City's own actions. Third, the bonding and security requirements of Section 13.120.130 create an unreasonable burden for SBC particularly since SBC has been a responsible user of the City's public rights -of -way for over 100 years. We would like to add the following language to the end of subsection B of this section: ... provided, however, that the Director shall not require Company to provide such security in the form of a deposit, Bond or Letter of Credit so long as (a) Company is not in default of any of the terms and conditions of this Ordinance or any prior permit issued by City; (b) Company's contractors are adequately insured and bonded; and (c) Company maintains its self- insurance retentions at levels reasonably satisfactory to the Director. This is consistent with the practices in a number of municipalities and with Streets & Highways Code § 1468 (pertaining to county roads). 15:5= rr. -Ci =._ TD t5.5 I-POUPB 3515 TO IO'S -13 3'J- P.134 The Honorable Tod W. Ridgeway May 10, 2004 Page 3 Thank you for your consideration of the foregoing. We appreciate the opportunity to work with the City to develop an ordinance that contains reasonable requirements that will promote and not hinder the installation of new technology in the City. Sincerely, i� O✓'�� Lori Ortenstone Senior Counsel IVI CC! Robin Clausen Dave Kiff Carol Tagayun Leslie Woolslair ** Tl1Tad pc frp RA *He Sent Via Facsimile & U.S. Mail May 10, 2004 The Honorable Tod W. Ridgeway City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92658 -8925 -ft- 0 -- -S k d c � SEC California 1442 Edinger Avenue Tustin, CA 92780 Re: Proposed Ordinance Adding Chapter 13.20 to Title 13 of the Newport Beach Municipal Code pertaining to Use of Public Rights -of -Way Dear Mayor Ridgeway: During the past few months, we have had an opportunity to work with representatives from the City regarding the proposed rights -of -way ordinance ("Ordinance "). Although a number of SBC's and the other utilities' concerns have been addressed, there are a few remaining issues with the Ordinance. First, some provisions of the Ordinance will only be enforced to the extent they are "feasible." For example Section 13.20.030.A. states that it is the "policy of City to promote undergrounding of facilities whenever and wherever Feasible," and Section 13.20.030.B. requires companies to "place all newly installed facilities underground or flush mounted vaults, whenever Feasible. " [Emphasis added.] The Ordinance defines "Feasible" as "capable of being accomplished in a successful manner within a reasonable period of time, taking into account environmental, physical, legal, and technological factors." Unfortunately, the definition does not include economic factors. This is an unrealistic and unreasonable limitation on feasibility. Almost any undertaking is technologically or physically feasible if cost is not a factor. Economic criteria should therefore be added to the definition of feasible. Section 13.20.060.H. presents a related issue. This section requires utilities to "first seek to use technically compatible excess capacity of other Companies" before constructing their own facilities in the public rights -of -way. Under this section, a utility would be forced to use conduit owned by a third party even if the cost to do so is double or triple the cost of construction. Again, there should economic limits to this requirement. Second, Section 13.20.200 requires SBC to indemnify the City for all liability arising out SBC's use of the public rights -of -way except for claims "attributable to the sole negligence or willful misconduct of the City." This means that SBC will be responsible for all damages arising from an incident even if the City is 99% at fault. Under current The Honorable Tod W. Ridgeway May 11, 2004 Page 2 law, the City cannot condition SBC's use of the public rights -of -way on SBC agreeing to indemnify the City for the City's own negligence. SBC has a right created by the legislature to access the public streets throughout the State of California. The only statutory limitation on that right is that the construction of telephone lines must be done "in such manner and at such points as not to incommode the public's use of the road or highway or interrupt the navigation of the waters." (Public Utilities Code § 7901.) While municipalities may use their police powers to enforce section 7901 "incommoding" restrictions, these police powers are limited: "because of the state concern in communications, the state has retained to itself the broader police power of granting franchises, leaving the municipalities the narrower police power of controlling location and manner of installation." (Pac. Tel. & Tel Co v City & Co of San Francisco, supra, at 152; see also Public Utilities Code ¢ 7901. 1.) Requiring SBC to indemnify the City for the City's own negligence is not a proper exercise of the City's police power rights. (22 Op. dtt'y Gen. 6 (1952) (State agency cannot require the phone company to hold the State harmless or assume liability for any damage which occurs by reason of the operation of the company's facilities over State rights -of -way) citing In re Johnson 137 Cal. 115, 120 (1905) (additional requirements which are not a proper exercise of the police power cannot be laid down by a governmental agency when an unconditional right is granted by the Legislature).) We therefore ask the City to change this section to require SBC to indemnify the City only to the extent that the liability does not arise out of the City's own actions. Third, the bonding and security requirements of Section 13.20.130 create an unreasonable burden for SBC particularly since SBC has been a responsible user of the City's public rights -of -way for over 100 years. We would like to add the following language to the end of subsection B of this section: ... provided, however, that the Director shall not require Company to provide such security in the form of a deposit, Bond or Letter of Credit so long as (a) Company is not in default of any of the terms and conditions of this Ordinance or any prior permit issued by City; (b) Company's contractors are adequately insured and bonded; and (c) Company maintains its self- insurance retentions at levels reasonably satisfactory to the Director. This is consistent with the practices in a number of municipalities and with Streets & Highways Code § 1468 (pertaining to county roads). The Honorable Tod W. Ridgeway May 11, 2004 Page 3 Thank you for your consideration of the foregoing. We appreciate the opportunity to work with the City to develop an ordinance that contains reasonable requirements that will promote and not hinder the installation of new technology in the City. Sincerely. Lori Ortenstone Senior Counsel Igz cc: Robin Clausen Dave Kiff Carol Tagayun Leslie Woolslair Utility Companies' Concerns about the PROW Ordinance Page I of 2 L�J `J From: Kiff, Dave To: City Council Cc: Tseng, Evelyn; jmelchingGrutan.com; Clauson, Robin; Badum, Steve; Bludau, Homer Date: 5/11/2004 12:14:01 PM Subject: Utility Companies' Concerns about the PROW Ordinance .................... You may have gotten calls or contacts from representatives of the Gas Company and SCE regarding the proposed PROW ordinance. Please know that: • We have had at least 3 meetings apiece with them and attempted to respond to their concerns; • We have communicated with Bill Marticorena (Special Counsel) on each issue and have generally followed Bill's advice; • In one case, the Gas Co is complaining about a section of our current code (that have been moved to this new Chapter) -- this is a section that Councilman Webb specifically asked to be retained in the PROW Ordinance. • The Franchises that they like to refer to date back to the 1940s and earlier. The Gas Co's is hardly 3 pages long -- and to us, the Franchises don't give them all the power that the companies think the Franchises do. We'll have copies avaiable for you for tonight. As I heard it, here are the Gas Co's main concerns: 1 -- They think the EXEMPTION section (13.20.050) should be broadened to say that the Franchise or state or federal law overrides anything in the Ordinance that is in conflict. REBUTTAL: As we have talked with them about before. Bill M believes that any additional opening of the Exemption section any more than we have done so already (re: financial security) will end us up in court all the time. Further. we have asked Gas Co reps to tell us where exactly they think the proposed ordinance IS in conflict, and they haven't told us anything. Finally, we will suggest tonight that the SEVERABILITY section be adjusted in a manner that may alleviate some of their concerns. 2 — They think the "promotion of undergrounding" section (13.20.030) makes them relocate their utility lines underground when other companies do so and they (Gas Co) have to pay for their share. REBUTTAL: It does. But that same language is OUR CURRENT CODE (Chapter 5.44). And do we really want one company staying above - ground when others are going below - ground? And how many above - ground gas lines have you seen recently? 3 -- They think another relocation section (13.20.090[d]) says that "other governments" would have the ability to make them pay to relocate facilities when such other gov'ts want them to. RESPONSE: We're proposing a deletion and change tonight that should address this concern directly (see attached redline version). file: / /C: \Documents %20and %20Settings \Owner \Local %20Settings \Temp \AF 1 BE7EE- 349... 5/11/2004 Utility Companies' Concerns about the PROW Ordinance Page 2 of 2 Here are Edison's main concerns: They want EXEMPTION (13.20.050) to say something like: "State laws, federal laws, tariffs or franchise rights will prevail over any sentence, clause or phrase of this ordinance if for any reason held to be unconstitutional or otherwise invalid. Such decision shall not affect the validity of the remaining provision of this ordinance." RESPONSE: We will propose a change to the Severability section that should address this. They think that Section 13.20.190 (System Location Data) would require them to provide data that is protected from public view because of Federal Energy Regulatory Commission (FERC) anti- terrorist protections. According to Edison, "FERC has taken the position that restricting access to this vital infrastructure is in the best interest of national security. As a result, Southern California Edison Company has adopted procedures to follow FERC's lead on this issue to not provide this information unnecessarily into the public domain." RESPONSE: We've made a change that we'll present tonight that should address this. Please note that I am sending this e-mail to the entire Council (so it's best, of course, not to co- discuss it in light of the Brown Act) and will re -state it tonight. Jeff Melching of Rutan and Tucker has reviewed the proposed changes and will be there tonight if need be to comment upon them. «04 -05 -11 Draft PROW Ordinance s -o underline.doc>> file: / /C: \Documents %20and %20Settings \Owner \Local %20Settings \Temp \AFI BE7EE- 349... 5/11/2004 f,6ADINAXCF. N0. 566 t ORDINANCE GRANTING T O SOUTHERN CALIFORNIA "'. EDISON.COMPANY. ITS SUC.. . ' LESSORS AND ASIGNS, A ,." FRANCHISE TO USE, FOR TRANSMTTPING , "AND � DIS- TRIBUTING ELECTR I C I T Y f', WITHIN THE CITY OF. NEW- i PORT- BEACH.FORAN'Y. AND.... Y�':�• ALL PURPOSES OTHER THAN THOSE AUTHORIZED 1-'"XrNDM SECTION'19 OF': AR =., TICLE�XI OF THE CONSTI- TUTION OF THE STATE OF CALIFORNIA AS SAID SEC - TION EXISTED PRIOR TO ITS AMENDMENT ON OC- TOBER 10, 1911, ALL, POLES, WIRES, CONDUITS AND AP- PURTENANCES WHICH ARE NOW OR MAY HEREAFTER BE LAWFULLY PLACED IN -THE PUBLIC STREETS, AL- LLYS, WAYS A N D PLACES NVtTHIN SAID CITY, AND TO CONSTRUCT AND USE IN SAID PUBLIC STREETS. AL- IXYS. WAYS AND PLACES ALL POLES, WIRES, CON - " Pi,(JITS AND APPURTANCES, }NCLUDING COMMU N I C A - tt7a. TION CIRCUITS, NECESSARY PIFOPER FOR SAID PUR- POSES. The City Council of the City of Newport "Beach does ordain as fol- F tows! SECTION 1. Whenever in this .. ordinance the words or phrases heteinaf ter in this section definod are used, they shall have the re- .. elective meanings' assigned to them in` the following definitions (unless, in the. given instance, the Context wherein they are used clearl' Import a different meaning] :... (a) 'lib word "grantee" shall �r[[tican the corporation to which the franchise contemplates in this ordinance Is granted and its lawful successors or as- signs; F„ (b) The word "Cit shall mean the City of Newport Beach, a municipal corpora- tion of the State of California, In Ats present Incorporated form or in any later reorganiz- ed,, ebtlsolidated, enlarged or re - incorporated form; (Q)' 'the word "streets" shall 'the alley Q public p streets, an a the same or may hereafter exist wtthin said city; The phrase "poles, wires, nduits and appurtenances" all can poles, towers, su ?: `'ports, wires, conductors, ca- ,....: ,�blea, guys, stubs, platforms, erossarms, braces, transform- - 6 ers, insulators, conduits, ducts, Y #ults, manholes,' meters, cut - L. <:., outs, switches, communication circuits, appliances, attach - `Y "` nents,'appurtenances and any ? " other property located for to �e )Kated in, upon, along, 9cross, ' under or over the '4tteets of the City, and used or usefdi in the transmitting and/9r distributing of electric - The phrase '.'construct and shall mean to lay, con - et, erect, install, operate, Main,, use, repair or re- e phrase "constitutionp) set shall mean the �cf'tir30ugh ec- E�jI S L) N) ceptance by said grantee or its predecessrir ifi "estate" of' the= " offer contained in the pro- visions of Section 19 of Ar- ...:.ticln..XI_.of the.. Constitution of the State of California, as said section existed prior to its amendment on October 10, 1911, and now owned by said grantee. - SECTION 2. The franchise (a) to use, for transmitting and dis. tributing electricity within t h e City 'of Newport Beach for any and all purposes other than those authorized under said constitution. al franchise, all poles, wires, con- duits and appurtonces, which are now or may hereafter be lawful- ly placed on. in or under the F.h',_ets within said City, and (b) lu construct and use in said :; goats, all poles, wires, conduits and appuriances, including com, munication circuits, necessary or proper for said purposes, is here- by granted to Southern Califor� nia Edison Company ,upon t h e terms and conditions set forth in the Franchise Act of 1937. SECTION 3. S a i d franchise sl %all be indeterminate, that Is to say, said franchise shall endure in full force and effect until the same shall, with the consenD of the Pub- lic Utilities Commiss on of the' State of California, be voluntarily surrendered or abandoned by the grantee, or until the. State or some municipal or public corpora- tion thereunto duly authorized by law shall purchase by voluntary agreement or shall condemn and take under the power of eminent domain, all property actually used and useful in the exercise of said f; ancluse and situate' in the ter - rilorial limits of the State, muni- cipal or public corporation pur- chnsing or condemning such prop- erty, or until said iranchise shall be forfeitrd for i.uncompliance •.vitl: its terms by the grantee. SE('TION 1. Tim erann�e of said fr;mchisc shall, during the term ;hereof, pay lu S ;Jd City, a citm :annually which shall be equivalent to two percent (20 %) of the gross annual receipts of said grantee arising from the use, operation or possession of said franchise; pro- vided, however, that such payment shall in no event be Jess than a sum which shall be equivalent to one -half percent (': -5" ) of the gross annual receipts: derived by grantee from the sale; of electric - i!v within the limits of such City Milder said franchise and said con- stitutional franchise. SF:CI'i0N 5. The grantee hereof shall file with the Cleric of said City, within throe (3) months after the expiration of the calen- dar year. or fractional calendar year, foll,ov.ing the date of the granting of this franchise, and within three (3) months after the expiration of each and every cal- endar yoar thereafter, h duly veri- fied statement showing in detail the total gross receipts of said grantee, dnrinr the preceding cal- endar year or such fractional cal- endar year, from the sale of olec- friclly within said dity. Such grantee shall pay tot said City within fifteen (15) days nftvr the time for filing said statement, in lawful money of the United States, the aforesaid percentage of its gross receipts for the calendar year, or such fractional calendar ) year, covered by said statement; Any neglect, omission or refusal" of said grantee to file said veri- fied statement, or to pay said par. contage at the time or in the Attfln-..•;��? ner hereinbefore provided, s}iall be grounds for -the declaration of -- -, a forfeiture of this franchise and of all rights of granteep hereunder. !,lt SECTION 6. The grantee I this <1 franchise shall file a bond, riinr- ., ning to the City of Newport Beach; with at least two good and ayf.: ficient sureties, to be approved`-- -r by the legislative body thereof, Iii the penal stun of One Thousand Dollars ($1,000.00)2 conditioned a that the grantee shall well and truly observe, fulfill and perform each and every term and condi- tion of this franchise, And that in case of any bresch of condition of said bond, the *tole amount of the penal sure It1 rpin named shall 'la be taken and dekrrted to be Ifili i dated damages and shall be rq t coverable from the principal and . suritles upon said bond. Said bond, shall be filed with the legislativQ body of the City of Newport Beach: ,: to within five (5)' days after tl*, t date of the granting of this. fran+' as .date and in. case said bond shall ., not be so. filed, or shall not rg:.:;.,', ceive the approval of the legisl4- tive body, this franchise shallrbeo.. forfeited and any money paid :to �•'�� the City in eo incetion therewith +. "yhail likewise be forfeited. '.',R ,SECTION 7, This franchise .;s : (o granted under and in accordance. with provisions of said Franchise _ Act of 1937." SECTION 8. This prdin*60, shall become effective thirty (30) F days after its final passage, un- less suspended by referendum pe- `rd tition filed as provided by law, SECTION 9. The granteqe of this franchise shall pay to thA City e sum of money sufficient to, rein- " burse it for all publication ex- penses incurred by it in connection .. with the granting thereof; said. payment to be made within thirty (30) 'days after the City shall have furnished said grantee with a written statement of such ex- penses. .. SECTION" 10. The franchise granted hereby shall not-become -- effective-until written acceptance .thereof shall have been filed by the Grantee with the City Clerk, SECTION 11. Ordinance.No. 564, "! adopted by the City Council of the City of Newport Beach, State of California on "eptember 2, 1944, is hereby repealed.. SECTION 12. The City Clerk .. shall cause this ordinance to be published once within fifteen (15) . days after its passage in Newport Balboa News - Times, a newspaper of general circulation published and circulated in said City. First read at a regular meeting of the City Council of said City held on the 10th day of-November, 1947; and, finally adopted, ando:ar' ^ dered published at aapgular meet- ing of said council held on the 24th day of November, 1947 by the following vote; AYES: Councilmen Allen, Slier, -� Isbell, Robertson, Reed. NOES. Councilmen, None. ARSFNT: Councilmen, None. O. B. REED, Mayor of (lie City of Newport Beach. ATTEST: FRANK L, RIN14• HART, City Clerk of fhe.gty ol`. Nefvport $i1�Gf1: . ORDINANCE NO. 524 ORDINANCE WPO TR BEACH, HGRANT- TO SOUTHERN COUNTIES COMPANY OF CALIFOR- ` A CORPORATION, THE lIfT, PRIVILEGE AND LNCHISF. TO LAY AND USE i STRANSMIPTTING AND DIS- BUTING GAS FOR ANY ALL PURPOSES UNDER, LNG, ACROSS OR UPON E PUBLIC STRFETS, WAYfi, i,EYS AND PLACES, AS THE �,IF. NOW OR MAY HERE - r,E:R. EXIST, WITHIN SAID MUNICIPALITY. be City Council a^ the City of ..mrt Beach does ordain as SECTION ONE Vhenever in this ordinance the rda ar phrases hereinafter in 1 section defined are used, they I have t`e respective meanings igned to them in the following [onions (unless, in the given tance, the cont°. t wherein they , need shall clearly import a ferent meaning): (a) The word "Grantee" shall mean the corporation to Vhich the franchise contem- gated in this ordinance is f[anted and its lawful suc- xasers or assigns; (b) The word "City" shall nean the City of Newport Beach, a municipal corpora - yon of the State of California, b its present incorporated fore' or in any later reorgan- laed, consolidated or reincor- porated fcrm; (c) The word "streets" shall near, the public streets, ways, alleys and places as the Bame now or may hereafter =Ist within said Citv; (d) The word "Engineer" stall mean the City Engineer of the City; (e) The word "Gas" shall mean natural or manufac- tured gas, or a mixture of na- tural and manufactured gas; � (f) The phrase "Pipes and Appurtenances" shall mean pipe, pipeline, main, service, trap, vent, vault, manhole, meter, gauge, regulator, valve, conduit, appliance, at- tachment, appurtenance and any other property located or to be located in, upon, along, acrore, under or over the treets of the Citv, and used Or useful in the transmitting and✓or distribution of gas. (g) The phrase "lay and !Use" shall mean to lay, con - �Mtruct, crest, install, operate, taintain, use, repair, replace, remove. SECTION TWO tat the right, privilege and chile, subject to each and all he terms and conditions con - ad in this ordinance, and pur- it to the Provisions of the mchise Act of 1937," be and same is hereby granted to :kern Counties Gas Company !alifornia,'a corporation organ - and existing under and by ae of the laws of the State of forma, herein referred to ss "Grantee," to lay find, use pipes appurtenances for tranarnit- and distributing gas for any Gds C PiNN, and all purposes, under, along, across or upon tine streets, of the City, for an indeterminate term or period from and after the ef- fective date hereof, that is to say, this franchise shall endure in full force and effect until the same shall, with the consent of the Railroad Commission of the State of California, be voluntarily sur- rendered w abandoned by its possessor, or until the State of California or some municipal or public corporation thereunto duly authorized by law shall purchase by voluntary agreement or shall ,ondemn and take under the power of eminent domain, all property actually used and useful in the exercise of this franchise, and situate within the territorial limits of the State, muncipal or public corporation purchasing or condemning such property, or un- til this franchise shall be forfeited for non - compliance with its terms by the pcssessor thereof. SECTION THREE The Grantee shall pay to the City at the times tereinafter' specified, in lawful money of the United States, a sum annually which shall be equivalent to two per cent (25c) of the gross annual receipts of grantee arising from the use, operation or iissewfon of said franchLse; provided, however, that such payment shall in no event be less than one per cent, (1°e) of the gross annual receipts of the grantee derived from the sale of gas within the limits of the City under this franchise. The grantee of this franchise shall file with the Clerk of the City within three (3) months after the expiration of the calen- dar year, or fractional calendar year, following the date of the grant of this franchise, and within three (3) months after the ex- piration of each and every cal- endar year thereafter, a duly veri- fied statement showing in detail the total gross receipts of the grantee, its successors or assigns, during the preceding calendar year, or such fractional calendar year, from the sale of the utility service within the City for which this franchise is granted. It shall be the duty of I the grantee to pay to the Citv within fifteen (15) days after the time for filing such statement, in lawful money of the United States, the specified per - rentage of its gross receipts for the calendar year, or such frac- tional calendar year, covered by such statement. Any neglect, omission or refusal by said gran- tee to file such verified statement, or to pay said percentage, at the times or in the manner herein - be'ore provided, shall be grounds for the declaration of a forfeiture of this franchise and of all rights thereunder. SF.CTTON FOUR This grant is made in lieu of all other franchises, rights, or privileges owned by the grantee, or by any successor of the grantee to any rights under this franchise, for transmitting and distributing gas within the limits of the City, as said limits now or may here- after exist, and the acceptance of the franchise hereby granted shall operate as an abandonment of all such franchises, rights and privi- leges within the limits of this City, as such limits now or may hereafter exist, in lieu of which this franchise is granted. _� ,3o 511-ill SECTION FIVE The franchise granted here- under shall not become effective until written acceptance thereof shall have been filed by the grantee thereof with the Clerk of the City. When so filed, such ac- ceptance shall constitute a con- tinuing agreement of the grantee that if and when the City shall thereafter annex or consolidate with, additional territory, any and all franchise rights and privileges owned by the grantee therein, ex- cept the franchise derived under the aforesaid Constitutional pro- vision, shall likewise be deemed to be abandoned within the limits of such territory. SECTION SIX Tile franchise granted hereun- der shall not in any way or to any extent impair or affect the right of the City to acquire the property of the grantee hereof either by purchase or through the exercise of the right of eminent domain, and nothing herein contained shall be construed to contract away or to modify or abridge, either for a term cc in perpetuity, the City's right of eminent domain in respect` to the grantee or any public util- itv. Nor shall this franchise ever be given any value before any court or ether public authority in any proceeding of any character in excess of the cost to the gran- tee of the necessary publication and any other sum paid by it to the City therefor at the time of the acquisition thereof. SECTION SEVEN The grantee of this franchise shall file a bond, running to the City, with at least two good and sufficient sureties, to be approved by the legislative body thereof, in a penal 'sum of $1,000.00, cond- tioned that the grantee shall well and truly observe, fulfill and per- form each and every term and condition of this franchise, and that in case of any brearh of condition of said bond, the whole amount of the penal sum therein named shall be taken and deemed to be liquidated damages and shall be recoverable from the -principal and sureties upon said bond. Said bond shall be filed with the legis- lative body of the City within five (5) days after the date of the granting of this franchise; and in cams said b_nd shall not be so filed, or shall not receive the approval of the legislative body, this fran- chise shall be forfeited and any money paid to the City in connec- tion therewith shall likewise be forfeited. SECTION EIGHT The grantee of this iranclrise shall (a) construct, install and main- tain all pipes and appurtenances in accordance with and in con- formity with all of the ordinances, rules and regulations heretofore or hereafter adopted by the legis- lative body of this City in the exercise of its police powers and not in conflict with the paramount authority of the State of Califor- nia, and, as to State highways, subject to the provisions of gen- eral laws relating to the location and maintenance of such facili- ties; (b) pay to the City, on demand, the cost of all repairs to public property made necessary by any operaticas of the grantee under lllj franchise; (c) indemnify and hold harm - .WS the City and its officers from &'y and all liability for damages proximately resulting from any operations uri. this franchise; (d) reinove or relocate, without ..pense to the City, any facill- ties installed, used and maintained under this franchise if and when ,lade necessary by any lawful Cpange of grade, alignment or Width of any public street, way, 0ey or place, including the con - Kruction of any subway or via - puct by the City; and (a) file with the legislative body of the City within thirty (30) days after any sale, transfer, assign- ment or lease of this franchise, or Iny part thereof, or of any of (ire rights or privileges granted thereby, written evidence of the same, certified thereto by the erantee or its duly authorized of- SECTION NINE The Engineer shall have power r give tte grantee such direc- rns for the location of any pipes ad appurtenances as may be rea- xlably necessary to avoid sewers, ,ater pipes, conduits or other ;ruetures lawfally In or under the Teets; and before the work of onstructing any pipes and ap- urterances is commenced, the relates shall file with said En- (neer plans showing the location iereof, which shall be Subject to is approval of said Engineer sueb approval not to be unreason - bly withhold): and all such con - 'ruction shall be subject to the ispection of said Engineer and one to his reasonable satisfac- oa All street coverings or open - igs of traps, vaults, and man- oles shall at all times be kept ush with the surface of the Teets; provided, however, that slats for underground traps, colts and manholes may extend xive the surface of the streets hen said vents are located In rrkways, between the curb and .e property line. Where it is necessary to lay any Iderground pipes through, under across any portion of a paved macadamized street, the same, here practicable and economical- reasonable shall be done by a nnel or bore, so M not to dis- rb tie foundation of such paved macadamized street; and in the 'ent that the same cannot be so me, such work shall be done ider a permit to be granted by e Engineer upon application SECTION TEN If any portion of any street all be damaged by reason of de- cis In any of the pipes and ap- irtenances maintained or con - mcted under this grant, or by Mn of any other cause arising )m the operation or existence of Y pipes and appurtenances con - ructed or maintained under this ant, said grantee shall, at its m cost and expense, immediate - repair any such damage and store such street, or portion of Beet, to as good a condition as Isted before such defect or other use of damage occurred, ouch xk to be done under the direc- m of the Engineer, and to his ssonable satisfaction. SECTION ELEVEN (a) If the grantee of this fran- Ise shall fail, neglect or refuse to comply with any of the pro- visions or conditions hereof, and shall not, within ten (10) days after written demand for comph- once, begin the work of compli- ance, or after such beginning &ball not prosecute the same with due diligence to completion, then the City, by its legislative body, may declare this franchise forfeited. (b) The City may sue in its own name for the forfeiture of this franchise, in the event of non- compliance by the grantee, its successors or gssigns, with any of the conditions thereof. SECTION TWELVE The grantee of this franchise shall pay to the City a sum of money sufficient to reimburse it for all publication expenses in- curred by it in connection with die granting of this franchise; such payment to be made within thirty (3u) days after the City shall furnish such grantee with a written statement of such ex- pellses. SECTION THIRTEEN Within ten (10) days after the passage and publication of this ordinance, the grantee shall file with the City Clerk a written m- ceptance of the franchise hereby granted, and Sn agreement to comply with the terms and condi- tions hereof. SECTION 'FOURTEEN This ordinance shall be printed, and published once in NEWPORT BALBOA JEWS- TIMES, a news- paper printed, published and air -' culated in the city of Newport Beach, and shall take effect and be in force thirty days after its passage. The above and foregoing or- dinance was introduced at a regular meeting of the City Coun ell of the City of Newport Beach held on the 5th day of July, 1943, and was finally passed -and adopt- ed on the 2nd day of August, 1943, by said City Council, at a regular meeting thereof, by the following vote, to -wit: AYES, COUNCILMEN: Allen, Kirk, Isbell, Reed, HaIL NOES, COUNCILMEN: None. ABSENT, COUNCILMEN: None. The foregoing ordinance Is Signed and approved by me this 2nd day of August, 1943. CLYAN H. HALL. ATTEST: Mayor. FRANK L. RINEHART, City Clerk, Pub.: Aug, 5, 1943. 0