Fremont Municipal Code Art. IV Regulations Governing the Public Right-of-Way

(a) All facilities of permittee 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.

(b) Permittee and all of its employees and agents shall comply with all applicable local, state and federal laws, ordinances, regulations, orders and other similar requirements in the installation, operation, maintenance, or removal of its facilities.

(c) In the event permittee creates a hazardous or unsafe condition or an unreasonable interference with property, such permittee shall eliminate such condition or interference.

(d) Permittee shall provide reasonable advance notice if permittee plans to perform any work or activity in the PROW in a manner that, due to duration or location of the work, has the potential to disrupt traffic flow or adjacent properties.

(e) Permittee shall not place facilities where it will interfere with any of the following:

(1) Existing and known future city uses of the PROW.

(2) The rights of private property owners as determined by the city engineer.

(3) Gas, electric, sewer or telephone fixtures.

(4) Water hydrants, mains and other water-related appurtenances.

(5) Sewers, storm drains, v-ditches or any wastewater stations.

(6) Any traffic control system.

(7) Any other city facility.

(f) The minimum cover over any and all pipes or conduits installed in the PROW shall be 36 inches from the finished surface, existing or planned, whichever is deeper, except in arterial streets where the minimum cover shall be 42 inches. In areas of the PROW between the back of the curb and through and including the public service easement, minimum cover shall be 24 inches, except that only 18 inches minimum cover shall be required below concrete sidewalks and driveways. Additional depth may be required due to the size of the conduit or other engineering considerations as determined by the city engineer. Deviations from the minimum cover may be allowed by the city engineer because of topography, structures, or other engineering necessity.

(g) AGFs in residential areas shall be located adjacent to side or rear yard lot lines, except where impracticable due to the functionality of the AGF as determined by the city engineer, and outside of triangular sight areas as defined in Section 18.171.020(b).

(h) All facilities of permittee shall be screened to the extent practicable.

(i) It shall be the responsibility of permittee 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, or independent contractors of any entity perform work in the marked-off area. Permittee shall participate in and adhere to the practices of underground services alert (“USA”) or its successor notification system and provide at least 48 hours’ prior notice to USA prior to any excavation.

(j) Ground Signs. Ground signs and supporting posts, poles, columns or structures shall not project into or be placed in or upon the PROW, except as permitted by Section 12.05.080(k). (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1400.)

(a) Promotion of Undergrounding. It is the policy of the city to promote undergrounding of facilities whenever and wherever feasible, as determined by the city engineer in his or her sole discretion, in the following circumstances:

(1) Whenever existing facilities are located underground along a particular PROW, new facilities must be installed, at permittee’s sole expense, underground along that PROW. Whenever any aboveground facilities are being located or relocated underground by a permittee along a particular PROW, that permittee shall coordinate with other permittees to jointly locate or relocate all facilities underground on a cost-sharing basis in a manner consistent with applicable law.

(2) AGFs are not permitted in historic conservation districts or historical overlay districts, or within 50 feet of an historical resource as defined in Chapter 18.175 (Historic Resources).

(3) AGFs that are not major encroachments shall not be required to be undergrounded, except in areas where all AGFs are undergrounded or in the historic areas described in subsection (a)(2) of this section.

(b) Limits on Aboveground Facilities. It is the additional policy of the city to limit the number and control the location of AGFs used in conjunction with underground facilities consistent with the technical requirements for providing high quality utility service. Permittees shall place all newly installed facilities underground or in flush-mounted vaults, whenever feasible. Permittees shall coordinate with all affected property owners to locate all newly installed AGFs 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. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1401.)

(a) Submittal Requirements. Permittee shall submit a construction work plan as required by the city engineer. The plan shall include the date for work completion, facility information (such as photographs and locations), hours of construction, a traffic control plan, and contact information. No permits shall be issued until the construction work plan is reviewed pursuant to all relevant public health, safety, and welfare criteria and approved by the city engineer. During construction, permittee shall, at the request of the city engineer, submit to the city engineer regular progress reports describing in detail the status of construction in relation to the construction work plan.

(b) Correction of Adverse Impacts. Permittee shall immediately correct any adverse impact to the city’s use or operations or the use or operations of a third party caused by permittee construction activities in the PROW at no cost to the city.

(c) Notification. Permittee shall provide written notification to the city engineer of any construction and/or maintenance activities undertaken in PROW, whether undertaken pursuant to permit or otherwise, at least 48 hours prior to commencement of such activities, unless the activities have been previously reported to the city engineer. Permittee shall notify the city engineer upon completion of the work. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1402.)

(a) Methods of construction, installation, maintenance and repair of any facilities shall comply with the most current editions of the zoning code, building code, National Electrical Safety Code, the National Electric Code, the city of Fremont standard specifications and standard details and 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 the PROW, the facilities therein, or building and structures outside of the PROW.

(c) Where feasible as determined by the city engineer in his or her sole discretion, permittee shall place all aboveground active and passive equipment in flush-mounted or low-profile waterproof pedestals whose design, size, location, color (within manufacturer’s specifications), appearance and placement have been previously approved by the city engineer in writing.

(d) During construction and maintenance, permittee 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.

(e) Permittee shall keep the construction site in a clean, orderly and safe manner as directed by the city engineer. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1403.)

Upon the failure, refusal or neglect of permittee to cause any construction, repair, or to comply with the terms of any permit, thereby creating an adverse impact upon public safety or convenience, the city engineer may cause such work to be completed in whole or in part, and upon so doing shall submit to permittee an itemized statement of costs. The permittee shall be given reasonable advance notice of the city engineer’s intent to exercise this power, and an opportunity to cure the default. The permittee shall pay to the city the actual costs incurred. The city may deduct amounts not so timely paid from the security fund, performance bonds or any deposit. Construction being performed in a manner contrary to the provisions of this chapter shall be subject to the provisions of Section 12.05.340. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1404.)

(a) 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.

(b) Cabinet Durability. The exterior of AGFs shall be manufactured of such quality and materials to resist denting, buckling and unfastening, and shall be maintained in “like new” condition. AGFs that have been damaged to not be “like new” shall be repaired or replaced by permittee.

(c) Each visible facility installed in the PROW shall be clearly identified with the name of the owner and a toll-free telephone number for permittee.

(d) Each visible facility other than AGFs shall be maintained in a “like new” condition. Utility boxes, vaults, lids, covers and other appurtenances that are damaged, broken or uneven shall be reset or replaced to grade by permittee forthwith. Facilities that are considered hazardous by the city engineer shall be corrected immediately. If permittee fails to correct the noted facilities, the city engineer may cause to have the facilities corrected under the provisions of Section 12.05.210.

(e) Permittee assumes all responsibility for damage or injury resulting from the maintenance of any in-ground and aboveground component. If permittee fails to comply with any written demand of the city engineer to correct that which caused such injury or damage, the city may perform said work and withdraw its costs and expenses from the security fund or other security provided by permittee. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1405.)

(a) Applicability. Each excavation in the PROW pursuant to this chapter, whether or not a major encroachment, shall be performed in accordance with this chapter and with the standard plans and specifications of the department and any department orders or regulations.

(b) Notices. The permittee shall post and maintain notice at the site before and during the excavation, and provide reasonable advance notice to each property owner on the street affected by the excavation.

(c) Limits on Excavation in the Public Right-of-Way. It is unlawful for permittee to make, cause, or permit to be made any excavation in the PROW outside the boundaries, times, and description set forth in the permit. Wires or cables installed underneath the surface of the PROW shall be inside pipes or conduits, unless the city engineer determines that the purpose of the cable or wire is such that it need not be protected. No single excavation site shall be longer than 1,200 feet in length at any time except with the prior written approval of the city engineer.

(d) Excavation Sites. Permittee shall cover an open excavation with nonskid steel plates ramped to the elevation of the contiguous street, pavement, or other PROW, or otherwise protected as directed by the city engineer. Permittee shall keep the area surrounding the excavation clean and free of loose dirt or other debris, materials and equipment in a manner deemed satisfactory to the city, including if necessary a storm water pollution prevention plan. Fill material, sand, aggregate, and asphalt-coated material may be stored at the site only if it is stored in covered, locked containers. Permittee shall be subject to city engineer orders regarding excavation sites, including: hazardous material guidelines for data collection; disposal, handling, release, and treatment of hazardous material; site remediation; and worker safety and training, and shall comply with all federal, state, and local laws regarding hazardous materials. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1406.)

(a) Pavement Management Plan and Condition Index. The department shall prepare a two-year pavement management plan showing all streets proposed to be resurfaced and reconstructed in the PROW. Streets contained in the pavement management plan database will be assigned a pavement condition index number. The two-year pavement management plan and the pavement condition index shall be made available for public inspection to coordinate proposed excavation work. Streets that have been recently improved shall be identified as three types:

(1) “Type One” means new pavement, including reconstruction and overlay.

(2) “Type Two” means new slurry seal and cape seal.

(3) “Type Three” means new fog seal, sand seal or rejuvenation treatment.

(b) Restrictions on Cutting City Streets.

(1) Permittee shall coordinate the timing of excavation work with the city considering the pavement management plan and pavement condition index. Permittee shall perform no excavation work in or on the following streets within the stated time frames: five years for Type One, three years for Type Two, and two years for Type Three streets. Streets that are not classified Type One, Type Two or Type Three, but due to their pavement condition indexes are found to be sound, shall not be excavated by permittee. Streets intended for high traffic volumes such as arterial streets shall not be excavated by permittee.

(2) Notwithstanding the requirements of this section, the city engineer may authorize performance of excavation work by permittee at any time if the city engineer finds that either (A) the excavation is necessary to protect the public health or safety, or (B) the excavation does not adversely impact the life of the streets on which the excavations are to be performed, or (C) finds that there is no other feasible alternative for the installation of permittee’s facilities. The city engineer may place additional conditions on a permit for which such excavation is authorized. The city engineer’s decision in this regard shall be final. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1407.)

(a) Restoration. In any case in which the sidewalk, street, or other portions of the PROW is or is caused to be excavated, removed, or otherwise damaged, permittee shall restore or cause to be restored the PROW in the manner prescribed by the orders and standard plans, details and specifications of the city engineer. At a minimum, permittee shall replace, repair or restore the PROW at the place of work to the same condition existing prior thereto unless otherwise provided in the permit. Permittee shall remove all obstructions, impediments, material or rubbish caused or placed upon the public right-of-way under the permit, and shall do any other work or perform any act necessary to restore the public street to a safe and usable condition. Activities concerning backfilling, replacement of pavement base, and finished pavement shall be performed in a manner consistent with this section and as directed by the city engineer.

(b) Street Cutting, Multiple Cuts within One Block. A permittee that performs three or more street cuts in one block within a five-year period shall grind and overlay the street for the entire length of the block. The city engineer may waive or modify this requirement depending upon the length of the block, the location of the street cuts and the condition of the street. “Street cut” means the cutting of pavement in the PROW, including the associated excavations.

(c) Incomplete Excavation – Completion by the City. In any case where an excavation or other work is not completed or restored in the time and manner specified in the permit, this chapter, or the orders and standard plans and specifications of the department, permittee shall complete the excavation or restoration as directed by the city engineer. If permittee should fail, neglect, or refuse to comply with the order, the city engineer may complete or cause to be completed such excavation or restoration in such manner as the city engineer deems expedient and appropriate. The permittee 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 that were made necessary by such excavation or restoration. The cost of such work also may be deducted from permittee’s security fund pursuant to Section 12.05.300. The city engineer’s determination as to the cost of any work done or repairs made shall be final.

(d) Completion. Completion of an excavation or restoration by the city in accordance with this chapter shall not relieve permittee from liability for future pavement failures as a result of the excavation.

(e) Responsibility. Permittee shall exercise due care to avoid damage to existing PROW improvements and facilities, utility facilities, adjacent property, roadside trees, shrubs and plants that are outside of the area of encroachment in the permit. If the improvements, facilities or other objects in the PROW or on adjacent property are damaged by action of permittee, they shall be replaced, repaired or restored by permittee, or caused to be repaired at permittee’s expense by the owner of a facility when required by state or local law or regulation, to a condition as good as when permittee first entered upon the PROW. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1408.)

(a) Repair and Maintenance Obligation of Permittee. Each permittee that excavates or causes to be made an excavation in the PROW shall be responsible to inspect, maintain, repair, or reconstruct the site of the excavation so as to maintain a condition acceptable to the city engineer until such time as the site of the excavation is reconstructed or overlaid by the department, or pursuant to a subsequently issued encroachment 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 city engineer shall investigate the cause and in his or her best judgment determine the person(s) responsible, if any, for the failure in the subsurface or surface of the PROW and shall notify such person(s) of the condition, its location, and the required remedy. Such person(s) shall repair or restore, or cause to be repaired or restored, such condition as directed by the city engineer.

(c) Repair by the City. In the event that any person(s) fails, neglects, or refuses to repair or restore any condition pursuant to the city engineer’s notice, the city engineer may repair or restore, or cause to be repaired or restored, such condition in such manner as the city engineer deems expedient and appropriate. Such person(s) shall compensate the department for any expenses associated with the repair or restoration, the cost of which may be deducted from permittee’s security fund. The city engineer’s determination as to the cost of the repair or restoration performed shall be final. 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. If the city engineer determines that the site of an excavation is hazardous or constitutes a public nuisance, public emergency, or other imminent threat to the public health, safety, or welfare that requires immediate action, the procedures and remedies set forth in this section shall apply. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1409.)

A mailbox may be placed and maintained within a public right-of-way if a permit has been obtained therefor pursuant to this chapter and so long as such mailbox and its placement comply with the rules and regulations of the United States Postal Service, except as follows:

(a) No permit shall be required of the Postal Service for the placement of collection and storage boxes and the like, but no such box shall be so placed or maintained as to endanger the life or safety of the traveling public.

(b) No box for delivery of mail shall be placed or maintained within the limits of any public right-of-way in any area where curbs, gutters and sidewalks have been constructed abutting residential uses, except where pursuant to its rules, regulations, policies, procedures, or practices, the United States Postal Service would not deliver mail to a box unless it were placed within such right-of-way or within a required front or side yard. If and when any such Postal Service standards are amended so that mail delivery to residences would be carried out without any requirement that delivery boxes be placed within the public right-of-way or any required yard, the city engineer shall notify the occupant of each residential lot served by a mail delivery box in the public right-of-way to remove such box therefrom within 60 days of the date of notice, and each such occupant shall remove such box within said period. This subsection shall not be construed to allow the placement or relocation of any mail delivery box within the public right-of-way where such placement or relocation is unnecessary for the continued delivery of mail.

(c) In any area where boxes for delivery of mail are permitted to be located within the limits of any public right-of-way, no such box, whether or not a permit has been issued therefor, shall be placed or maintained in any location which creates a hazard to the traveling public or an undue obstruction to the free movement of the traveling public, irrespective of when such situation first came into existence. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1410.)

(a) No hedge, shrub or other planting shall be maintained in the public right-of-way adjacent to the sidewalk which exceeds a height of 30 inches measured vertically above the top of curb, with the exception of street trees.

(b) The city may issue a permit to an applicant to perform work or otherwise encroach in planting areas under this chapter. If the plantings are damaged or disturbed in the course of an authorized encroachment, they shall be removed and replaced by the permittee unless the permit specifically states otherwise. (Ord. 14-2007 § 2, 5-8-07; Ord 11-2010 § 13, 5-25-10. 1990 Code § 6-1411.)

No person, without first having obtained a permit, shall solicit on a commercial or donation basis to place or maintain any number, figure, letter, carving, drawing, design, or other marking upon any street, sidewalk, or curb; except that markings for the purpose of identifying survey, utility or construction locations shall not be subject to this chapter. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1412.)

Any monument of granite, concrete, iron or other lasting material set for the purpose of locating or preserving the lines and/or elevation of any street or other public right-of-way, property subdivision, or a precise survey point or reference point shall not be removed or disturbed or caused to be removed or disturbed without first obtaining permission from the city engineer to do so, such permission to be granted in conformance with requirements as set forth in specifications established by the city engineer. Replacement of any removed or disturbed monument will be at the expense of the permittee. (Ord. 14-2007 § 2, 5-8-07. 1990 Code § 6-1413.)