Laguna Woods Municipal Code Ch. 9.04 Excavation, Filling and Obstruction of Highways

This chapter shall govern excavation in streets, alleys, and other public places in the City of Laguna Woods under the jurisdiction and control of the Department of Engineering. The City Manager or designee shall be responsible for managing the public right-of-way.

(Ord. No. 01-01, § 1(11.01.010), 1-17-2001)

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

(05) Applicant shall mean any owner or duly authorized agent of such owner, who has submitted an application for a permit to excavate.

(10) Department shall mean the Department of Engineering of the City of Laguna Woods.

(15) Deposit shall mean any bond, cash deposit, or other security provided by the applicant.

(20) Director shall mean the City Manager or designee, and shall include the term Superintendent of Streets.

(25) Excavation shall mean any opening in the surface or subsurface of the public right-of-way.

(30) 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.

(35) 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.

(40) 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.

(45) Permittee shall mean the applicant to whom a permit to excavate has been granted by the Department in accordance with this chapter.

(50) 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.

(55) 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 Engineering.

(60) Public utility franchise granted by the City of Laguna Woods 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 Public Utilities Code or the jurisdiction of the California Public Utilities Commission.

(65) 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.

(Ord. No. 01-01, § 1(11.01.020), 1-17-2001)

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 Laguna Woods under the jurisdiction and control of the Department, without first obtaining from the Department a permit authorizing such excavation. No permit to excavate will 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. Capital projects of the City are exempt from the requirements of this chapter.

(Ord. No. 01-01, § 1(11.01.030), 1-17-2001)

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.

(Ord. No. 01-01, § 1(11.01.040), 1-17-2001)

Applications shall be submitted in format and manner specified by the Director and shall contain:

(1) The name, address, telephone, facsimile number, and e-mail address 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, facsimile number, and e-mail address of the owner.

(2) A description of the location, purpose, method of construction, and surface and subsurface area of the proposed excavation.

(3) 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.

(4) A traffic control plan designed and stamped by a traffic engineer as may be required and approved by the Director.

(5) 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.

(6) The proposed start date of excavation.

(7) 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. The applicant and contractor shall not allow material, equipment, facilities, and other items used in the construction to remain within the public right-of-way after work hours without the written authorization of the Director.

(8) 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. No spoil from the contractor's work or material to be used in the excavation shall remain at the worksite for longer than 4 hours without the Director's written authorization.

(9) 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.

(10) Current business tax certificate issued by the City of Laguna Woods (if appropriate)

(11) Evidence of a deposit as required by this chapter;

(12) Evidence of insurance for the applicant and owner as specified by the Department;

(13) Any other information that may reasonably be required by the Department.

(Ord. No. 01-01, § 1(11.01.050), 1-17-2001)

(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 of the denial.

(d) If the application is approved or conditionally approved, the Department shall issue a permit to the applicant.

(Ord. No. 01-01, § 1(11.01.060), 1-17-2001)

The permit shall specify the location and content 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.

(Ord. No. 01-01, § 1(11.01.070), 1-17-2001)

Permits shall be void if construction has not begun within 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 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.

(1) Transferability of permits. Permits are not transferable.

(2) 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 by the end of the next business day 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.

(3) Moratorium areas; no permit shall be issued. Permission to excavate in newly renovated streets will not be granted for three 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 that endangers life or property.

b. Interruption of essential utility service.

c. Work that is mandated by City, State or Federal legislation.

d. Service for buildings where no other reasonable means of providing service exists.

e. Other situations deemed by the City Council to be in the best interest of the general public.

All permits which are issued under (3)a through (3)e above shall be in accordance with the standards, details and specifications established by and on file in the office of the Director.

(4) 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. The issuance of any permit, inspection, repair, or suggestion, approval, or acquiescence of any person affiliated with the Department shall not 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 Laguna Woods and its officers, agents, consultants, 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 or damage to any property 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.

(Ord. No. 01-01, § 1(11.01.080), 1-17-2001)

Before issuing such permit, the Director shall require the person, firm, company or corporation applying therefore to deposit in the office of the Director or designee a sum sufficient to cover all fees of the Director and of the City incurred or which may be incurred in connection therewith. From time to time, the Director may review the adequacy of the amount deposited and if found to be insufficient to cover all costs, shall request of the person, firm, company, or corporation an additional sum that in the Directors opinion will be sufficient to cover costs until project completion. 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 Director into the treasury of the City.

(Ord. No. 01-01, § 1(11.01.090), 1-17-2001)

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 12 years from the recording of a notice of completion by the Director. The California Civil Code shall govern the release of said security. Utility excavators shall post the security required by the Director in conformance with a franchise agreement between the City and the utility excavator.

(Ord. No. 01-01, § 1(11.01.100), 1-17-2001)

(a) All permits issued under the requirements of this chapter will include the payment of a nonrefundable 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 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 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 9.04.060 payment of the workmanship and performance warranty fee will be required under Subsections (a)(1) and (a)(2) of this section.

(b) In all cases where cuts are allowed, the permittee is required to patch their cuts to City standards and the approval of the Director. The patching shall include a grinding of the pavement beyond the edges of the trench to a width determined by the Director, and replacement with a full-depth asphalt concrete. 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.

(Ord. No. 01-01, § 1(11.01.110), 1-17-2001)

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.

(Ord. No. 01-01, § 1(11.01.120), 1-17-2001)

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.

(Ord. No. 01-01, § 1(11.01.130), 1-17-2001)

State Law reference— Notice to utilities of excavations, Government Code § 4216 et seq.

(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 1,200 feet prohibited. No lane closures in excess of 1,200 feet will be allowed, except in cases of emergency or by written consent of the Director.

(Ord. No. 01-01, § 1(11.01.140), 1-17-2001)

When a 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.

(Ord. No. 01-01, § 1(11.01.150), 1-17-2001)

(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. In all cases the Director shall be the sole determination of pavement restoration requirements. In all cases where damage has occurred to adjacent facilities as the direct or indirect result of the permittee's work, as determined by the Director, the permittee shall be required to restore the facilities to the condition required by this section.

(b) Modification to requirements. Upon written request from the permittee, the Director, in his discretion, may approve in writing modifications to the requirements of this chapter.

(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 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.

(Ord. No. 01-01, § 1(11.01.160), 1-17-2001)

(a) In the event any person 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 the Director deems expedient and appropriate. The person 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 including interest 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 from any and all liability at the site of the repair or restoration, including, but not limited to, future failures.

(Ord. No. 01-01, § 1(11.01.170), 1-17-2001)

(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 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 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.

(Ord. No. 01-01, § 1(11.01.180), 1-17-2001)

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.

(Ord. No. 01-01, § 1(11.01.190), 1-17-2001)

(a) The Director shall notify the person responsible for a continuing violation that they have 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 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 Section 9.04.210 up to $500.00 per day, per violation.

(c) In addition to the administrative penalty assessed pursuant to Section 9.4.210 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 9.4.210 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 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 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 the Director that specifies in detail the basis for appeal. Within 45 days of the receipt of the appeal, unless extended by mutual agreement of the affected parties, the Director shall cause a hearing to be held before the City Council. The decision of the City Council shall be final.

(Ord. No. 01-01, § 1(11.01.200), 1-17-2001)

(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 or other remedy as provided in this chapter and attorneys fees for such violation.

(b) 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 any person who claims that any breach of duty related to or arising from this chapter proximately caused their injury.

(Ord. No. 01-01, § 1(11.01.210), 1-17-2001)

The City may institute criminal proceedings in the enforcement of this chapter as set forth in the Laguna Woods Municipal Code Title 1.

(Ord. No. 01-01, § 1(11.01.220), 1-17-2001)

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.

(Ord. No. 01-01, § 1(11.01.230), 1-17-2001)

(a) Whenever any facility is abandoned in the public right-of-way, the person owning, using, controlling or having an interest therein, shall, within 30 days after such abandonment, file in the office of the Director a statement in writing, giving in detail the location of the facility 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 facilities abandoned.

(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.

(Ord. No. 01-01, § 1(11.01.240), 1-17-2001)

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 months of change in ownership of a facility, the identification required by this section shall indicate the new owner.

(Ord. No. 01-01, § 1(11.01.250), 1-17-2001)

No pipes carrying water or gas shall be laid less than 30 inches below the official grade of any street, except by permit approved by the City Council."

(Ord. No. 01-01, § 1(11.01.260), 1-17-2001)