HomeMy WebLinkAboutORD NO 3801ORDINANCE NO. 3 8 0 I
AN ORDINANCE AMENDING CHAPTER 12.16 OF THE
BAKERSFIELD MUNICIPAL CODE REGARDING
CONSTRUCTION WORK IN STREETS.
BE IT ORDAINED by the Council of the City of Bakersfield that Chapter
12.16 of the Bakersfield Municipal Code is hereby amended to read as follows:
SECTION 1.
12.16.010 Excavation in the Public Right-of-Way.
This Chapter 12.16 shall govern excavation in streets, alleys, and other public
places in the City of Bakersfield under the jurisdiction and control of the Department of
Public Works. The Director of Public Works shall be responsible for managing the public
right-of-way.
12.16.020 Definitions.
A. "Applicant" shall mean any owner or duly authorized agent of such owner,
who has submitted an application for a Permit to Excavate.
B. "Chapter" shall mean this Chapter 12.16 of the Bakersfield Municipal Code.
C. "City" shall mean the City of Bakersfield.
D. "Department" shall mean the Department of Public Works.
E. "Deposit" shall mean any bond, cash deposit, or other security provided by
the applicant.
F. "Director" shall mean the Director of the Department of Public Works or
his/her designee, and shall include the term Superintendent of Streets.
G. "Excavation" shall mean any opening in the surface or subsurface of the
public right-of-way.
H. "Facility" or "Facilities" shall mean any and all cables, cabinets, ducts,
conduits, converters, equipment, drains, handholds, manholes, pipes, pipelines, splice
boxes, surface location markers, tunnels, utilities, vaults, and other appurtenances or
tangible things owned, leased, operated, or licensed by an owner or person, that are
located or are proposed to be located in the public right-of-way. ~.~, ~
I. "Owner" shall mean any person, including any agency, department, or
subdivision of the City, who owns any facility or facilities that are or are proposed to be
installed or maintained in the public right-of-way.
"Permit" or "permit to excavate" shall mean a permit to perform an excavation
as it has been approved or may be amended or renewed by the Department.
K. "Permittee" shall mean the applicant to whom a permit to excavate has been
granted by the Department in accordance with this chapter.
L. "Person" shall mean any natural person, corporation, partnership, or any
governmental agency, including any agency, department, or subdivision of the City, the
State of California, or United States of America.
M. "Public Right-of-Way" shall mean the area across, along, beneath, in, on,
over, under, upon, and within the dedicated public alleys, boulevards, courts, lanes,
places, roads, sidewalks, streets, and ways within the City, as they now exist or hereafter
will exist and which are or will be under the permitting jurisdiction of the Department of
Public Works.
N. "Utility Excavator" shall mean any franchise owner whose facility or facilities
in the public right-of-way are used to provide gas, electricity, steam, water, sewer service,
telecommunications, video, or other services to customers regardless of whether such
owner is deemed a public utility by the California Public Utilities Commission.
O. "Public Utility Franchise" granted by the City of Bakersfield or the State of
California is a contract granting special privileges to use the public right-of-way. It is not
intended that this chapter of the Municipal Code impose additional rules or regulations
which are inconsistent with the rights or obligations under the franchise or confer authority
to the City that conflicts with the State's Public Utilities Code or the jurisdiction of the
California Public Utilities Commission.
12.16.030 Written Permits Required to Excavate.
It is unlawful for any person to make or to cause or permit to be made any
excavation in any public right-of-way or make any improvements on, under, over or across
any street, alley or public place within the City of Bakersfield under the jurisdiction and
control of the Department of Public Works, without first obtaining from the Department a
permit authorizing such excavation. No permit to excavate shall be issued if the applicant
does not have legal authority to occupy and use the public right-of-way for the purposes
identified in the application. Budgeted capital projects of the City are exempt from the
requirements of this chapter.
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12.16.040 Orders, Regulations, and Rules of City Departments.
In addition to the requirements set forth in this chapter, the Department shall adopt
such orders, regulations, or rules as it deems necessary in order to preserve and maintain
the public health, safety, welfare, and convenience. All work in the public right-of-way
pursuant to this chapter shall be performed in accordance with the standard plans and
specifications of the Department, the design manual, and any Department orders,
regulations, or rules, except where the Director grants prior written approval to deviate
from such standard plans and specifications, the design manual, orders, regulations, or
rules.
12.16.050 Applications for Permits to Perform an Excavation.
Applications shall be submitted in format and manner specified by the Director and
shall contain:
A. The name, address, telephone, and facsimile number of the applicant.
Where an applicant is not the owner of the facility to be installed or maintained in the
public right-of-way, the application also shall include the name, address, telephone, and
facsimile number of the owner.
B. A description of the location, purpose, method of construction, and surface
and subsurface area of the proposed excavation.
C. A plat showing the proposed location and dimensions of the excavation and
the facilities to be installed, maintained, or repaired in connection with the excavation, and
such other details as the Department may require.
D. A copy or other documentation of the franchise, easement, encroachment
permit, license, or other legal instrument that authorizes the applicant or owner to use or
occupy the public right-of-way for the purpose described in the application. Where the
applicant is not the owner of the facility or facilities to be installed or maintained, the
applicant must demonstrate in a form and manner specified by the Department that the
applicant is authorized to act on behalf of the owner.
E. The proposed start date of excavation.
F. The proposed duration of the excavation, which shall include the duration of
the restoration of the public right-of-way physically disturbed by the excavation.
G. Written certification that all material to be used in the excavation, installation,
maintenance, or repair of facilities, and restoration of the public right-of-way will be on
hand and ready for use before any portion of the excavation is begun.
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H. Written certification that the applicant and owner are in compliance with all
terms and conditions of this chapter, the standard plans and specifications, the design
manual, orders, regulations, and rules of the Department, and that the applicant and owner
are not subject to any outstanding assessments, fees, penalties, or other permit
requirements.
I. A current Business Tax Certificate issued by the City of Bakersfield.
Evidence of a deposit as required by this Chapter 12.16.
K. Evidence of insurance for the applicant and owner as specified by the
Department.
L. Any other information that may reasonably be required by the Department.
12.16.060 Action on Applications for Permits to Excavate.
A. After receipt of an application for a permit to excavate, the Department shall
determine whether an application is complete. If the application is deemed to be
incomplete, the Department shall advise the applicant in writing of the reasons for rejecting
the application as incomplete.
B. If the application is deemed to be complete, the Department, in its discretion,
shall deny, approve, or conditionally approve the application. In order to preserve and
maintain the public health, safety, welfare, and convenience, the Department may
condition a permit with specified requirements including, but not limited to, those that limit
or modify the facilities to be installed or maintained, the location of the facilities to be
installed or maintained, and the time, place, and manner of excavation.
C. If the application is denied, the Department shall advise the applicant in
writing of the basis for denial.
D. If the application is approved or conditionally approved, the Department shall
issue a permit to the applicant.
12.16.070 Terms and Limitations.
The permit shall specify the location and extent of the excavation, the start date and
duration of the excavation, the permittee to whom the permit is issued, and any conditions
placed on the permit.
-- Page 4 of 13 Pages --
12.16.080 Duration and Validity.
Permits shall be void if construction has not begun within thirty (30) days of the start
date specified in the permit or if excavation, including restoration, has not been completed
within the specified duration; provided, however, that the Director, in his or her discretion,
may issue one 30-day extension to the start date and one 30-day extension to the duration
of excavation upon written request from the permittee.
12.16.090 Non-Transferability of Permits.
Permits are not transferable.
12.16.100 Emergency Excavation.
Nothing contained in this chapter shall be construed to prevent any person from
taking any action necessary for the preservation of life or property when such necessity
arises during days or times when the Department is closed. In the event that any person
takes any action to excavate or cause to be excavated the public right-of-way pursuant to
this chapter, such person shall apply for an emergency permit within four (4) hours after
the Department's offices are first opened. The applicant for an emergency permit shall
submit a written statement of the basis of the emergency action and describe the work
performed.
12.16.110 Moratorium Areas - No Permit Shall Be Issued.
Permission to excavate in newly renovated streets will not be granted for three (3)
years after completion of street renovation as shown by the filing of a Notice of
Completion. Utilities shall determine alternate methods of making necessary repairs to
avoid excavating in newly renovated streets. Exceptions to the above are as follows:
A. Emergency which endangers life or property.
B. Interruption of essential utility service.
C. Work that is mandated by City, State or Federal legislation.
exists. D. Service for buildings where no other reasonable means of providing service
E. Other situations deemed by the City Council to be in the best interest of the
general public.
All permits which are issued under A through E above shall be in accordance with
the standards, details and specifications established by and on file in the office of the
Director.
-- Page 5 of 13 Pages --
12.16.120 Liability and Indemnification.
A. Liability upon Permittee. Each owner and permittee is wholly responsible for
the quality of the work performed in the public right-of-way and both the owner and
permittee are jointly and severally liable for all consequences of any condition of such work
and any facilities installed in the public right-of-way. Neither the issuance of any permit,
inspection, repair, or suggestion, approval, or acquiescence of any person affiliated with
the Department shall excuse any owner and/or permittee from such responsibility or
liability.
B. Indemnification. defense. and hold harmless. Each owner and permittee
shall indemnify, defend, and hold harmless the City of Bakersfield and its officers, agents,
and employees, as well as their associated and affiliated companies and their respective
officers, agents, and employees from any and all suits, actions, losses, claims, and
liabilities of every kind, nature, and description, including, but not limited to, attorney's fees
and any injury or death to any person(s) or damage to any property(ies) arising out of or
in connection with the work performed by it or on its behalf under a permit to excavate.
Upon the request of the City, the owner and/or the permittee, at no cost or expense to the
City, shall defend any suit, action, or legal proceeding asserting a claim for losses or
liabilities, to the extent that any such suit, action, or legal proceeding claims a loss covered
by the terms of this indemnification agreement.
12.16.130 Deposit Required.
Before issuing such permit, the Public Works Director shall require the person, firm,
company or corporation applying therefor to deposit in the office of the Public Works
Director or his designee a sum sufficient to cover all fees of the Public Works Director and
of the City incurred or which may be incurred in connection therewith. Upon the
completion of the proposed work, if any portion of the deposit so made remains in excess
of the fees provided in this chapter, such excess shall, upon the completion of the
proposed work, be refunded to the person depositing the same. Such portion of said
deposit as is required to cover the fees provided in this chapter shall, upon the completion
of said work, be paid by the Public Works Director into the treasury of the City. (Prior code
§ 12.16.040.)
12.16.140 Security Required.
For all work requiring a permit by the terms of this chapter, with the exception of
sewer laterals and utility excavations, the person making application for permit shall
provide, prior to the issuance of said permit, security as required by the Director which
shall include, at a minimum, a performance bond, a labor and materials bond, and a
warranty bond. The warranty shall run twelve (12) years from the recording of a Notice of
Completion by the Director. The release of said security shall be governed by the
California Civil Code. Utility excavators shall post the security required by the Director or
in conformance with a franchise agreement between the City and the utility excavator.
-- Page 6 of 13 Pages --
12.16.150 Workmanship and Performance Warranty Fee.
A. All permits issued under the requirements of this chapter will include the
payment of a non-refundable Workmanship and Performance Warranty Fee to City. This
Workmanship and Performance Warranty Fee shall be imposed as follows:
1. Where the workmanship and performance of the permittee is limited
to the statutory one (1) year period; cuts are allowed with payment of a Workmanship and
Performance Warranty Fee as established by Resolution.
2. Where the permittee commits to a twelve (12) year workmanship and
performance warranty agreement with the City, cuts are allowed with payment of a limited
Workmanship and Performance Warranty Fee as established by Resolution.
3. Utilities operating under a franchise granted by the City that clearly
includes an explicit obligation to repair (warranty) any restoration quality defects are
exempt from payment of the Workmanship and Performance Warranty Fee. Utilities
operating under a franchise that does not have explicit obligation to warranty and repair
may enter into an agreement with City that provides a warranty and security satisfactory
to City and thereby, during the term of the agreement, be exempt from payment of the
warranty fee. The agreement must comply with the warranty and security requirements
of this chapter.
4. Where permission to excavate in newly renovated streets has been
granted pursuant to Section 12.16.110, payment of the Workmanship and Performance
Warranty Fee will be required under 1 through 2 above.
B. In all cases where cuts are allowed, the permittee is required to patch their
cuts to City standards. All warranties shall include adequate security for the warranty
period. All pavement warranty fees received under the requirements of this section shall
be expended solely for the purpose of maintaining the workmanship and performance of
City streets.
12.16.160 Additional Fees for Excavation.
In instances where administration of this chapter or inspection of an excavation is
or will be unusually costly to the Department, the Director may require an applicant to pay
an additional sum in excess of any amount charged elsewhere in this chapter. The
additional sum shall be sufficient to recover actual costs incurred by the Department and
shall be charged on a time and materials basis. Whenever additional fees are charged,
the Director shall provide the applicant with an estimate of the additional fees.
-- Page 7 of 13 Pages --
12.16.170 Underground Service Alert.
Any person excavating in the public right-of-way shall comply with the requirements
of the Underground Service Alert regarding notification of excavation and marking of
subsurface facilities.
12.16.180 Limits Upon Excavation in the Public Right-of-Way.
A. Scope. It is unlawful for any permittee 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.
B. Rock Wheel. Use of a rock wheel to excavate in the public right-of-way is
unlawful without prior written approval of the Director.
C. Trenchless Technology. Use of trenchless technology in the public right-of-
way is unlawful without the prior written approval of the Director.
D. Lane Closures in Excess of Twelve Hundred Feet Prohibited. No lane
closures in excess of twelve hundred (1200) feet will be allowed, except in cases of
emergency or by consent of the Director.
12.16.190 Stop Work Order, Permit Modification, and Permit Revocation.
When the Director has determined a person has violated this chapter, any condition
of the permit, 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 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 permittee of such action in writing.
12.16.200 Restoration of the Public Right-of-Way.
A. Like New Restoration. In any case in which the street, sidewalk, or other
public right-of-way is or is caused to be excavated, the owner and permittee shall restore
or cause to be restored such excavation to like new condition in the manner prescribed by
the standard plans and specifications, the design manual, orders, regulations, and rules
of the Department. As a minimum, trench restoration shall include resurfacing to a
constant width equal to the widest part of the trench excavation.
B. Modification to Requirements. Upon written request from the permittee, the
Director, in his or her discretion, may approve in writing modifications to the requirements
of this chapter.
-- Page 8 of 13 Pages --
C. Incomplete Work and Completion by the Department. In any case where an
excavation is not completed or restored in the time and manner specified in the permit, this
chapter, the standard plans and specifications, the design manual, or the orders,
regulations, and rules of the Department, the Director shall order the owner or permittee
to complete the work as directed within twenty-four (24) hours. If the owner or permittee
should fail, neglect, or refuse to comply with the order, the Director may complete or cause
to be completed such work in such manner as the Director deems expedient and
appropriate. The owner or permittee shall compensate the Department for any costs
associated with the administration, construction, consultants, equipment, inspection,
notifications, remediation, repair, restoration, or any other actual costs incurred by the
Department or other departments or agencies of the City made necessary by said work.
12.16.210 Repair by the Department.
A. In the event any person(s) fails, neglects, or refuses to repair or restore any
condition pursuant to the Director's notice as set forth in this chapter, the Director shall
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 Department or
other departments or agencies of the City made necessary by reason of the repair or
restoration undertaken by the Department.
B. Repair or restoration by the Department in accordance with this chapter shall
not relieve the person(s) from any and all liability at the site of the repair or restoration,
including, but not limited to, future failures.
12.16.220 Emergency Remediation by the Department.
A. If, in the judgment of the Director, the site of an excavation is considered
hazardous, constitutes a public nuisance, public emergency, or other imminent threat to
the public health, safety, or welfare that requires immediate action, the Director shall order
the condition remedied by written, oral, telephonic or facsimile communication to the
owner, applicant, or any agent thereof and shall designate the owner or applicant as the
responsible party.
B. If the responsible party is inaccessible or fails, neglects, or refuses to take
immediate action to remedy the condition as specified in said communication, the Director
shall 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 departments or agencies of the City made necessary by reason of the emergency
remediation undertaken by the Department.
-- Page 9 of 13 Pages --
12.16.230 Violation of Chapter.
The Director shall have authority to enforce this chapter Upon a determination by
the Director that a person has violated any provision of this chapter, the standard plans
and specifications, the design manual, notices, orders, regulations, or rules of the
Department, any term, condition, or limitation of any permit or is subject to any outstanding
fees, deposits, or other charges, the Director shall serve notice on said person to abate
the violation. Any person whom the Director determines to be responsible for violating this
chapter may be subject to any or all of the penalties specified in this chapter.
12.16.240 Administrative Penalties.
A. The Director shall notify the person responsible for a continuing violation that
they have seventy-two (72) hours to correct or otherwise remedy the violation or be subject
to the imposition of administrative penalties. For violations subject to the incomplete work
provisions of this chapter, the person responsible shall be notified they have twenty-four
(24) hours to remedy the violation or be subject to the imposition of administrative
penalties. For those violations that create an immediate danger to health or safety or are
otherwise subject to emergency remediation, the person responsible shall be notified they
must immediately remedy the violation or be subject to the imposition of administrative
penalties.
B. Administrative penalties may be assessed pursuant to subsection "A" up to
Five Hundred Dollars ($500) per day, per violation.
C. In addition to the administrative penalty assessed pursuant to subsection "A,"
the Director shall assess fees to cover the reasonable costs incurred in enforcing the
administrative penalty, including, but not limited to, inspection costs and administrative
overhead.
D. Penalties and fees assessed under Section 12.16.240 shall continue to
accrue against the person responsible for the violation until the violation is corrected or
otherwise remedied in the judgment of the Director.
E. The Director, or his or her designated representative, is responsible for
charging and collecting any penalty or fee assessed pursuant to this section. The Director
shall notify in writing the person responsible for the violation of the cost of the penalty and
fee and declare that such costs are due and payable to the City. If the penalty and fee are
not paid within thirty (30) days of this notice, the Director shall pursue collection of the
penalty and fee.
F. Any person who has been assessed administrative penalties or fees may
seek administrative review of such penalties and fees by filing an appeal with Director that
specifies in detail the basis for appeal. Within twenty (20) days of the receipt of the
appeal, unless extended by mutual agreement of the affected parties, the Director shall
-- Page 10 of 13 Pages --
cause a hearing to be held before the City Council. The decision of the City Council shall
be final.
12.16.250 Civil Penalties and Fees.
A. The Director may call upon the City Attorney to maintain an action for
injunction, summary abatement, or abatement of any violation of this chapter, and for
assessment and recovery of a civil penalty and attorneys fees for such violation.
B. Any person who violates this chapter may be liable for a civil penalty, not to
exceed Five Hundred Dollars ($500) for each day such violation is committed or permitted
to continue. Such penalty shall be assessed and recovered in a civil action brought by the
City Attorney in any court of competent jurisdiction. In assessing the amount of the civil
penalty, the court may consider any one or more of the relevant circumstances presented
by any of the parties to the case, including, but not limited to, the following: the nature and
seriousness of the misconduct, the number of violations, the persistence of the
misconduct, the length of time over which the misconduct occurred, the willfulness of the
defendant's misconduct, and the defendant's assets, liabilities, and net worth. The City
Attorney may also seek recovery of the attorneys fees and costs incurred in bringing a civil
action pursuant to this section.
C. In undertaking enforcement of this chapter, the City is assuming an
undertaking only to promote the general welfare. It is not assuming, nor is it imposing on
its officers and employees, any obligation for which the City is liable in money damages
to ar~y person who claims that any breach of duty related to or ar s ng from this chapter
proximately caused their injury.
12.16.260 Criminal Penalties and Fees.
A. The City may institute criminal proceedings in the enforcement of this chapter
as set forth in the Bakersfield Municipal Code Chapter 1.40.
12.16.270 Suspension of Applications and Permits.
No person subject to any outstanding violation of this chapter shall apply for nor be
issued any permit to excavate in the public right-of-way.
12.16.280 Abandonment of Underground Facilities, Reports, and Maps.
A. Whenever any facility(ies) is abandoned in the public right-of-way, the
person owning, using, controlling or having an interest therein, shall, within thirty (30) days
after such abandonment, file in the office of the Director a statement in writing, giving in
detail the location of the facility(ies) so abandoned. Each map, set of maps, or plans filed
pursuant to the provisions of this chapter, shall show in detail the location of all such
facility(ies) abandoned.
--Page 11 of 13 Pages--
B. It shall be unlawful for any person to fail, refuse, or neglect to file any map
or set of maps as required by this section.
12.16.290 Identification of Visible Facilities.
All facilities installed pursuant to a permit to excavate that are visible from the
surface of the public right-of-way shall be clearly identified with the name of the current
owner of the facilities. Within three (3) months of change in ownership of a facility(ies),
the identification required by this section shall indicate the new owner.
12.16.300 Depth of Gas or Water Pipe.
No pipes carrying water or gas shall be laid less than thirty (30) inches below the
official grade of any street, except by permit approved by the City Council. (Prior code §
12.16.220.)
12.16.310 Removal of Manhole Covers Permit.
No person shall remove the cover from or enter any manhole within the City, without
first having obtained a permit to do so from the Director, except in case of accident or
emergency, in which case written notice shall be given within four (4) hours after the
Department first opens.
SECTION 2.
This Ordinance shall be posted in accordance with provisions of the Bakersfield
Municipal Code and shall become effective thirty (30) days from and after the date of its
passage.
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AFFIDAVIT OF POSTING DOCUMENTS
STATE OF CALIFORNIA )
COUNTY OF KERN )
PAMELA A. McCARTHY, being duly sworn, deposes and says:
That she is the duly appointed, acting and qualified City Clerk of the City of Bakersfield;
and that on the 23rd day of October, 1997 she posted on the Bulletin Board at City Hall,
a full, true and correct copy of the following: Ordinance No. 3801, passed by the
Bakersfield City Council at a meeting held on the 22rid day of October, 1997, and entitled:
Ordinance amending Chapter 12.16 of the
Bakersfield Municipal Code regarding
construction work in streets.
/s/ PAMELA A. McCARTHY
City Clerk of the City of Bakersfield
DEPUT~ City Clerk