Morgan Hill Municipal Code Ch. 12.08 Excavations and Encroachments

It is declared to be in the public interest that improvements or encroachments within any public right-of-way in the city by persons other than the city be regulated in order to protect and preserve public property and public rights-of-way, to assure the maintenance and restoration of public property and public rights-of-way damaged as a result of such improvements or encroachments, to provide appropriate safeguards to assure the protection of life and property, to establish rules and regulations which will enable officials of the city to accomplish the foregoing objects and to meet the variety of engineering, construction, traffic and related problems imposed by various improvements or encroachment work. The provisions of this chapter shall be liberally construed so as to give full effect to the accomplishment of the foregoing.

(Ord. 88 N.S. § 1, 1958)

The ordinance codified in this chapter shall be known as the "Street Excavation and Encroachment Ordinance," and may be cited as such.

(Ord. 88 N.S. § 2, 1958)

The definitions given in this section shall govern the construction of this chapter and its application, unless otherwise apparent from the context. The word "shall" is always mandatory and not merely directory.

A. "Applicant" means any person making written application to the superintendent of public works for a permit under this chapter.

B. "City" means the city of Morgan Hill.

C. "City council" or "council" means the city council of the city of Morgan Hill.

D. "Contractor" means a contractor licensed by the state of California to do work covered by this chapter.

E. "Encroachment" means privately owned construction, facilities or structures of any kind in the public right-of-way or in or upon other public property which is constructed for the use and convenience of the owner or occupant of the adjacent property.

F. "Grade" means the official elevations and cross-sections established for the finished surface of a public right-of-way.

G. "Improvement" means any construction, structure or facility in the public right-of-way.

H. "Person" means any individual, firm, partnership or corporation and their heirs, assigns or agents.

I. "Public right-of-way" means any street, highway, sidewalk, alley or other public way or public grounds in the city or any setback or plan line established or ordinance or resolution for the future widening or enlarging of any street, highway, sidewalk, alley or other public way or public grounds.

J. "Sports accessory structures" means privately owned structures of any kind that are used for sporting activities which include but are not limited to basketball hoops, skateboard ramps, and street hockey goals.

K. "Superintendent" means the superintendent of public works of the city.

(Ord. 1435 N.S. § 1, 1999; Ord. 88 N.S. § 3, 1958)

A. No person shall do or cause to be done any improvement or encroachment work of any kind in any public right-of-way within the city without first having obtained a permit as required in this chapter.

B. No person shall place or maintain or cause to be placed or maintained obstructions or structures of any kind not related to encroachment work listed in subsection A of this section, including sports accessory structures, in any public right-of-way within the city.

C. A permit fee shall be charged by the director of public works for the issuance of a permit which shall be in addition to all other fees for permits or charges relative to any proposed construction work. The amount of such permit shall be established by resolution of the city council.

(Ord. 1435 N.S. § 2, 1999: Ord. 88 N.S § 6, 1958)

This chapter shall not be construed as imposing upon the city or any official or employee of the city any liability or responsibility for damages to any person injured by the performance of any work for which a permit is issued under this chapter; nor shall the city or any official or employee thereof be deemed to have assumed any such liability or responsibility by reason of inspections authorized under this chapter, the issuance of any permit or the approval of any work.

(Ord. 88 N.S. § 5, 1958)

The following persons shall be exempted from the requirements of section provisions of this chapter set opposite their names, but shall comply with the other requirements and sections of this chapter:

(Ord. 1155 N.S., 1993; Ord. 88 N.S. § 12, 1958)

The provisions of this chapter shall not be applicable to any work under the direction of competent city authorities by employees of the city or by any contractor of the city performing work for and on behalf of the city.

(Ord. 88 N.S. § 4, 1958)

No permit shall be issued unless a written application for the issuance of a permit is submitted to the superintendent. The written application shall state the name and address of the applicant, the nature, location and purpose of the work, the date of commencement and date of completion of the work, and other data as may reasonably be required by the superintendent. The application shall be accompanied by plans showing the extent of the proposed work, the dimensions and elevations, property lines and easements, the location and purpose of the work, and such other information as may be prescribed by the superintendent. Any application may be reviewed by other departments of the city to check compliance with the laws and ordinances under their jurisdiction.

(Ord. 88 N.S. § 7, 1958)

A. Whenever that portion of an encroachment within a public right-of-way exceeds the cost of five hundred dollars, as estimated by the superintendent, then the applicant shall file with the superintendent a surety bond or in lieu thereof shall deposit a cash deposit as provided herein.

B. The required surety bond must be given by a surety company authorized to transact business in the state and approved by the city attorney as to form. It shall, by its terms extend for a period of one year following the completion of the work. If a cash deposit is given, this shall be retained for a period of one year following completion of the work. The amount of the cash deposit or penal sum of the bond shall be set by the superintendent.

C. The condition of any surety bond or the condition upon which any cash deposit is made hereunder shall be that the permittee shall comply with the provisions of this and other applicable ordinances of the city and with the terms of his permit and shall complete the work authorized by the permit within the time limits therein specified and shall fill up, restore and place in good and safe condition to the satisfaction of the superintendent all openings and excavations made in or damage caused to the public right-of-way, and to maintain any public right-of-way where work has been done in as good condition for a period of twelve months after the work has been done as it was in before such work shall have been commenced.

D. A surety bond may be filed for a specific job, or an annual and continuing bond may be filed covering several jobs. The amount of an annual bond shall be set by the superintendent and may be increased at any time if in the opinion of the superintendent, the current bond is insufficient to protect the city because of additional work undertaken by the permittee.

E. In the event of any default under the conditions of any surety bond or the conditions upon which any cash deposit is made, the superintendent may, after ten days notice in writing of such default to the permittee and his surety, if any, cause the required work to be completed for and on behalf of the permittee and his surety, if any. The permittee and his surety, if any, shall be liable for the cost of completing the work, for any costs, claims or damages arising from default and from any liability arising out of or in any way connected with the work so performed by the city or contractor employed by the city (for which the permittee and his surety, if any, agree to hold the city harmless.) In the event that the penal sum of any surety bond or the cash deposit on hand shall be insufficient to satisfy the foregoing costs, claims, damages or liabilities, the permittee agrees to pay any deficiency therefor within ten days or written demand therefor from the city. In the event that any legal action by the city is necessary to enforce the foregoing costs, claims, damages, liabilities or deficiency, the permittee and his surety, if any, agree to pay a reasonable attorney's fee to be fixed by the court. The remedy provided by the provisions of this subsection for the city shall not be exclusive, but the city shall be empowered to institute such other remedies as are provided by law.

(Ord. 88 N.S. § 9, 1958)

A permittee, prior to the commencement of work under this chapter, shall furnish the superintendent satisfactory evidence in writing that the permittee has in force and will maintain in force during the performance of the work and the period of the permit public liability insurance of not less than fifty thousand dollars for any one person and one hundred thousand dollars for any one accident and property damage insurance of not less than five thousand dollars duly issued by an insurance company authorized to do business in the state.

(Ord. 88 N.S. § 10, 1958)

The superintendent may require that applications for permits involving encroachment upon the public right-of-way be accompanied by an encroachment agreement signed by the property owner and acknowledged by a notary. This agreement shall contain the following covenants with the city, together with such other covenants as the superintendent may require:

A. The encroachment shall be abandoned, removed or relocated upon demand in writing by the superintendent.

B. The encroachment shall be installed and maintained in a safe and sanitary condition at the sole cost, risk and responsibility of the owner and successor in interest, who shall hold the city harmless with respect thereto.

C. The agreement is made for the direct benefit of the property owner's land described in the agreement and the covenants therein shall run with such property and shall be binding on the assigns and successors of owners. The property owner must remove or relocate an encroachment within thirty days after notice or the superintendent may cause such work to be done, and the cost thereof may be imposed as a lien upon such land.

D. Encroachment agreements for approved encroachment permits may be recorded at the option of the city in the office of the county recorder as an encumbrance upon the land involved.

(Ord. 88 N.S. § 11, 1958)

The superintendent shall provide each permittee at the time a permit is issued under this chapter a suitable placard on which the following words are printed or written in letters at least one inch high: "City of Morgan Hill Permit No._______, Expires _______." The superintendent shall fill in the blank spaces with the appropriate permit number and expiration date. Any person receiving a permit under this chapter shall keep this placard posted in a conspicuous place at the site of the work. No person shall exhibit at or about any work not covered by such permit, nor misrepresent the number of the permit or its date of expiration.

(Ord. 88 N.S. § 8, 1958)

A. The superintendent may deny the issuance of a permit under this chapter or in writing suspend or revoke a permit issued under this chapter whenever the permit is issued in error or on the basis of incorrect information in the application, or in violation of this chapter or any rule or regulation under this chapter or whenever he finds that any work authorized by the permit is being done contrary to the provisions of this chapter or any rule or regulation under this chapter.

B. Whenever any work is being done contrary to the provisions of this chapter or any rule or regulation under this chapter, the superintendent may also order the work stopped by notice in writing served on any persons engaged in the doing of such work or causing the work to be done, and any such persons shall forthwith stop such work until authorized by the superintendent to proceed.

C. Upon such denial or suspension or revocation of a permit or issuance of a stop order, the applicant or permittee may file a written request with the superintendent for a hearing before the city council within thirty days of such denial, suspension or revocation of the permit or issuance of the stop order. The superintendent shall set the matter for hearing before the city council within thirty days of such written request and shall give the applicant or permittee ten day's notice in writing by registered mail of the time and place of such hearing. At the hearing, the city council shall hear the evidence and shall make its findings and decision. The decision of the city council shall be final.

(Ord. 88 N.S. § 14, 1958)

Any improvement or encroachment work of any kind in any public right-of-way within the city shall be done in conformance with each of the terms and conditions of the permit therefor and in accordance with the drawings, specifications and general conditions made applicable to such work by the superintendent and in conformance with all applicable federal, state and municipal statutes, ordinances, resolutions or rules or regulations promulgated thereby or by any agency thereof including, without limitation, the provisions of this chapter, the rules and regulations adopted under this chapter, the building, electrical and plumbing codes of the city, and ordinances and resolutions adopting or establishing standard plans and specifications and official grade lines for the city. Nothing contained in the ordinance codified in this chapter shall be construed to relieve any person from compliance with any other ordinance of the city.

(Ord. 88 N.S. § 13, 1958)

It is unlawful for any person to violate any provision of this chapter.

(Ord. No. 2276 N.S., § 42, 5-2-2018)

Editor's note— Ord. No. 2276 N.S., § 42, adopted May 2, 2018, amended § 12.08.150 in its entirety to read as herein set out. Former § 12.08.150 pertained to violation—penalty and derived from Ord. 88 N.S., § 15, adopted in 1958; Ord. 1192 N.S., § 17, adopted in 1994; and Ord. 1320 N.S., § 12, adopted in 1997.