Chapter 13.36

PUBLIC RIGHT-OF-WAY WORK PERMITS*

Parts:

• 1 General Provisions

• 2 Construction Impact Mitigation Plans 3 Denial, Amendment or Revocation

Part 1

GENERAL PROVISIONS†

Sections:

• A. Any tree as the term "tree" is defined in Section 13.28.020 located on private property which, because of factors including but not limited to its history, girth, height, species or unique quality, has been found by the city council to have a special significance to the community shall be designated a heritage tree. Such trees shall be placed on a heritage tree list which shall be adopted by the city council by resolution, which resolution may be amended from time to time to add to or delete certain trees therefrom.

*Editor’s note— Ord. 29966, § 1, adopted Aug. 8, 2017, effective Sept. 8, 2017, changed the title of Ch. 13.36 from "Public Works Street Permits" to read as herein set out.

†Editor’s note— Ord. 29966, § 2, adopted Aug. 8, 2017, effective Sept. 8, 2017, amended Part 1 in its entirety to read as herein set out. Former Part 1, §§ 13.36.010 - 13.36.080, pertained to general provisions regarding public works street permits, and derived from Ords. 21320, 23916, 23917, 26996, and 29196.

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§ 13.36.030

• 13.36.040 Temporary closures.

• 13.36.050 Special costs.

• 13.36.060 Completion deposit.

• 13.36.070 Performance and labor and materials bonds.

• 13.36.080 Removal deposit.

• 13.36.090 Fees.

• A. This Chapter is adopted to establish the process and requirements for the issuance of permits for temporary encroachments on public property in connection with, and during the course of, the construction of public or private improvements by an entity other than the City.

• B. This Chapter does not authorize or apply to structures, facilities or improvements in public right-of-way or other public easements after the completion of construction, or to encroachments placed, installed or constructed other than in connection with work done under a building permit or any public works construction permit.

• (Ord. 29966.)

• A. No person shall undertake construction or reconstruction within or affecting the City's existing or proposed public rights-of-way or other public easements without first obtaining a permit from the City pursuant to this Chapter or Chapter 15.50 as applicable.

• B. Subject to the provisions of Part 2 of this Chapter 13.36 requiring construction impact mitigation plans for major construction projects, the Director of Public Works may approve plans for construction or reconstruction, not including maintenance, within existing and proposed public rights-of-way or other public easements, and when the cost to the

City is not more than five thousand dollars, may approve agreements and issue permits for said work.

• (Ord. 29966.)

• A. Permits issued under this Chapter shall be required for private construction of public improvements, subject to the requirements for such improvements governed by Title 14 or Title 19, as applicable, and as the same may be amended from time to time.

• B. No encroachment permit shall be issued unless all other required permits for the intended use and encroachment have been obtained by the Applicant.

• C. The Director of Public Works may suspend any permit issued under this Chapter when reasonably necessary for the public convenience or safety as the result of conflict with:

  1. Public construction work being performed under contract;

  2. Major public maintenance operations; or

  3. Emergency requirements of any public agency, or as the result of a public disaster, such as, fire, flood or earthquake.

• D. The Director of Public Works shall give the permittee seventy-two hours' written notice of such suspension and order to clear the public right-of-way or other public easement; provided, however, that in the case of an emergency, no notice shall be required. In the event of an emergency, or if the permittee fails to clear the public property as ordered, the Director of Public Works may clear the public property or cause it to be cleared, and the costs thereof shall be paid by the permittee. Such costs, if not paid upon demand, shall be deducted from the moneys which have been deposited, or shall be paid by the surety company on its bond.

• E. The Director of Public Works may revoke any permit issued in accordance with this Chapter upon thirty days prior written notice; however, the Director of Public Works may revoke

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§ 13.36.030

such permit upon shorter notice when such encroachment causes a dangerous condition or threat of danger to life or property or when the permittee is in violation of its permit or any provisions of this Chapter.

• F. Each permit issued under this Chapter shall require the permittee to indemnify, defend, and hold harmless the City, its officials, boards, commissions and members thereof, agents, employees, and contractors against any and all liabilities, losses, claims, actions, causes of action, or demands whatsoever against any of them, including any injury to or death of any person or damage to property or other liability of any nature, including, without limitation, attorneys' and expert fees and court costs, arising out of or related to the performance of work under its permit, the installation and maintenance of any facilities or the use of any public property by the permittee or the permittee's employees, officers, officials, agents, transferees, contractors, or subcontractors. This obligation to indemnify the City shall not apply to liabilities, losses, claims, actions, causes of action, or demands arising from City's sole negligence.

rmance of work under its permit, the installation and maintenance of any facilities or the use of any public property by the permittee or the permittee's employees, officers, officials, agents, transferees, contractors, or subcontractors. This obligation to indemnify the City shall not apply to liabilities, losses, claims, actions, causes of action, or demands arising from City's sole negligence.

• G. Any damage done directly or indirectly to any public improvements, public property, utility facilities, survey markers, monuments or benchmarks by the permittee or the permittee's employees, officers, officials, agents, transferees, contractors, or subcontractors, shall be promptly repaired at the permittee's sole cost and expense to the satisfaction of the Director of Public Works. Alternatively, the City may, in its sole discretion, choose to perform the repair work itself, in which case the permittee shall reimburse the City for the full costs of the repair work within thirty days after receiving an invoice from the City.

• H. The City Manager, in conjunction with the Director of Public Works, may adopt administrative guidelines, rules and regulations addressing the location, construction, form, size, safety, maintenance, repair, and any other man-

ner of conduct of encroachments governed by this Chapter, and may include such provisions and require additional conditions specific to the encroachment in the permit that are not inconsistent with this Chapter. (Ord. 29966.)

The Director may issue permits under this Chapter for temporary closures of public right-ofway and other public easements necessary in connection with street improvements, adjacent private construction and construction related safety. (Ord. 29966.)

In connection with permits issued under this Chapter by the Director of Public Works, a charge may be included to recover City costs for special services, including but not limited to pavement marking, overtime hours, parking meter removal/replacement, TV sewer inspection, signal installations, and traffic safety control. (Ord. 29966.)

In connection with permits issued under this Chapter by the Director of Public Works, a completion deposit of not less than five percent of the estimated cost of the construction shall be provided. Said completion deposit may be increased if the Director finds such increase necessary to assure public safety. The Director may require a one hundred percent completion deposit in lieu of bonds where the estimated cost of the project is less than five thousand dollars. In the event of noncompliance with permit conditions, the Director may act on behalf of the permittee to cause the work to be done by others and authorize payment directly from the completion deposit, and may also recover City costs in taking such action. Upon acceptance, the unexpended portion of the completion deposit shall be returned to the party making payment. (Ord. 29966.)

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§ 13.36.100

In connection with permits issued under this Chapter by the Director of Public Works, except as noted under "Completion deposit," bonds in the amount of one hundred percent of the estimated cost are to be provided and approved by the Director assuring performance and for labor and materials.

(Ord. 29966.)

In connection with permits issued under this Chapter by the Director of Public Works, the Applicant shall provide the City with a deposit or adequate security in an amount sufficient as determined by the Director of Public Works and in a manner acceptable to the City Attorney, to remove the encroachment and restore the public right-ofway to its pre-encroachment condition in the event that the permittee fails to timely or adequately maintain or repair the encroachment, remove the encroachment upon termination of the permit, or when the encroachment causes a dangerous condition or threat of danger to life or property. Such a removal deposit may be reduced in amount or waived by the Director of Public Works when the Director makes written findings specifying the reasons that it is in the public interest to reduce or waive the removal deposit.

(Ord. 29966.)

In connection with permits issued under this Chapter by the Director of Public Works, a service cost recovery fee will be collected. (Ord. 29966.)

• A. In connection with permits issued under this Chapter by the Director of Public Works, the City's Risk Manager shall determine the insurance coverage, if any, including amounts thereof, which shall be required.

• B. Any insurance required by the risk manager shall name the City of San José, its officers and employees as additional insureds.

• C. Permits issued for awnings and signs erected in the Downtown Core Area, Downtown Frame Area or any Neighborhood Business District which meet the following standards are exempt from the foregoing insurance requirements:

  1. Awnings erected in accordance with plans approved by the City Building Department and:

     • a. Projecting no closer to the curbline than three feet; and

     • b. Located at least eight feet above grade with valances, if any, that are located at least seven feet above grade.

  2. Attached signs erected in accordance with plans approved by the City Building Department and:

     • a. Projecting no more than four feet six inches from the surface to which attached; and

     • b. Located at least eight feet above grade.

• D. "Downtown Core Area," "Downtown Frame Area" and "Neighborhood Business District" as used in this Section mean those areas delineated as such on the land use/transportation diagram of the general plan of the City of San José, as amended.

• (Ord. 29966.)

Part 2

CONSTRUCTION IMPACT MITIGATION PLANS

Sections:

13.36.210 Construction impact mitigation plan - Requirement.

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§ 13.36.200

• A. The purpose of this part is to help transition residents and businesses through the temporary disruption of major construction projects by requiring, among other things, the owners of such projects to communicate with the surrounding neighbors prior to and throughout the construction period, and to modify their approach to such projects by implementing appropriate mitigation measures in an attempt to avoid or lessen potential impacts arising from the construction.

• B. The provisions of this part are in addition to, and shall not replace, supersede or be interpreted to comply with the California Environmental Quality Act, or any other provision of state or federal law, except that as provided in Section 13.36.120, the Construction Impact Mitigation Plan ("Plan") may incorporate by reference the analysis of any impacts identified in any document prepared for the project pursuant to the California Environmental Quality Act.

• C. Except as contained in an approved Plan, nothing in this part shall be construed as requiring anyone to pay compensation to businesses or residents for damages which are otherwise not recoverable under state or federal law.

• (Ord. 26996.)

• A. Except as provided in subsection B. below, any person required to obtain a permit from the director of public works pursuant to Section 13.36.010 of this chapter, for a major construction project as defined in Section 13.36.240 of this chapter, shall be required as a condition to

the permit to submit to the director of public works, for approval by the city council, a Construction Impact Mitigation Plan. The public works director shall not approve any encroachment permit for a major construction project until the city council has approved the Plan for that project.

• B. Notwithstanding subsection A. above, if any person commences a major construction project pursuant to a cooperation agreement with the city, the terms of which require a Construction Impact Mitigation Plan, the terms of such cooperation agreement shall control over the terms of this part.

• (Ord. 26996.)

A Construction Impact Mitigation Plan submitted pursuant to this chapter shall contain the following elements:

• A. A detailed project description, including site maps and a phasing schedule depicting the proposed location and timing of construction activity on a month-bymonth basis for the duration of the project.

• B. A detailed analysis of the potential physical, environmental and other impacts of the construction activities on residents and businesses within a five hundredfoot radius of the project. The Construction Impact Mitigation Plan may incorporate by reference the analysis of any impacts identified in any document prepared for the project pursuant to the California Environmental Quality Act.

  1. Notwithstanding the above, if construction related impacts are significant, and substantially affect an area greater than within a five hundred-foot radius of the project boundaries, the applicant shall address the entire area substantially affected by the construction im-

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§ 13.36.230

  - pacts of the project in the manner required by Sections 13.36.010 through 13.36.330. If the applicant fails to adequately address significant construction related impacts that substantially affect an area greater than a five hundred-foot distance from the project boundaries, the director may recommend, and/or council may adopt, specific findings that the construction impacts of the project will be significant and substantially affect an area more than five hundred feet from the project boundaries. Upon making such findings, the city council may either conditionally approve the Plan with appropriate related mitigation measures or, in the alternative, require the applicant to revise its Plan to include appropriate identification and mitigation of such impacts. 

• C. A detailed description of the mitigation measures proposed to be undertaken by the contractor or the project owner to reasonably mitigate each of the impacts identified to the extent practicable. The Construction Impact Mitigation Plan may incorporate by reference the mitigations of any impacts proposed in any document prepared for the project pursuant to the California Environmental Quality Act.

• D. A detailed Communications Plan specifying the steps that will be taken by the contractor and the project owner during the course of construction of the project to alleviate the identified impacts, which shall include, but not be limited to the following:

  1. A schedule of regular meetings with the surrounding businesses and residents throughout the course of construction;

2. A display of maps and construction schedule information posted in and around the construction area;

3. A schedule of meetings with the surrounding businesses and residents, emphasizing the market area of the impacted businesses;

4. A schedule of regular meetings to coordinate with any other construction project within five hundred feet of the project;

5. The designation of a community outreach coordinator available onsite for the duration of the construction project.

(Ord. 26996.)

• A. The potential impacts required to be analyzed pursuant to Section 13.36.220.B. shall include the following impacts on businesses that shall be addressed in the Construction Impact Mitigation Plan, if applicable:

  1. Reduced patronage due to impediments to access, visual impediments to signage, loss of on-street parking, or perceived safety issues;

  2. Forced temporary business closure due to loss of utilities, loss of access for patrons and employees, loss of access for services such as deliveries or garbage service, or perceived safety issues;

  3. Forced permanent business closure due to permanent loss of access.

• B. Potential mitigation measures to alleviate such impacts on businesses may include, but not be limited to:

  1. Limited hours of construction;

  2. Provision of alternative access routes;

  3. Outreach to businesses to schedule utility outages;

  4. Increased signage to provide visibility, notice of alternative parking, notice of alternative access in conformance with San José Municipal Code Title 23;

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§ 13.36.230

5. Marketing assistance, technical business support, and cross-promotion efforts with adjacent businesses;

6. Direct or indirect financial assistance, such as, but not limited to that which may be available through government loan or grant programs.

• (Ord. 26996.)

• A. For the purposes of this chapter, a "major construction project" is one in which the encroachment permit application, the plans submitted with such application, and any other relevant information requested by the director of public works, or the director's designee, indicates that the applicant's construction cost estimate or the engineer's estimate for the improvements in the public right-of-way for the entire project, including the portion for which the encroachment permit is requested, will total ten million dollars or more, as adjusted periodically pursuant to Subsection B. herein, and at least one of the following conditions will exist:

  1. The project will impact two or more signalized intersections;

  2. Sidewalk access will be precluded for the length of a block; or

  3. The project is located within the lesser of five hundred feet or one block of another project located in the right-of-way.

• B. For the purposes of this section, the ten million dollar threshold defining major construction projects herein shall be adjusted every five years on October 1 by the change in the Engineering News Record (ENR) Construction Cost Index from the base level on October 1, 2003. In the event that the ENR Construction Cost Index is discontinued, the director of public works shall select and authorize use of a similar construction cost adjustment mechanism to replace the ENR Construction Cost Index.

• C. For the purposes of this section, the phrase "improvements in the public right-of-way" shall not include any property right that has been offered to the city through an irrevocable offer of dedication as a condition of final map approval under the Subdivision Map Act where the dedication of the property and all improvements thereupon have not been accepted by the city.

• (Ord. 26996.)

Part 3

DENIAL, AMENDMENT OR REVOCATION

Sections:

The director of public works may deny a permit application if the director makes any of the following determinations:

• A. The application is incomplete; or

• B. The Construction Impact Mitigation Plan, if required by this chapter, has been determined by the city council to be inadequate in that it fails to address any project impact in the manner and/or to the standard required by this chapter; or

• C. The application, if granted, would jeopardize or create harm to public health and safety.

(Ord. 26996.)

• A. The director of public works may, in writing, amend or revoke a permit if the director finds any of the following conditions have occurred:

  1. The permit was issued in error or on the basis of incorrect or incomplete information supplied;

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2. The permittee has violated any conditions of the permit, including noncompliance with an approved Construction Impact Mitigation Plan; or

3. The construction activities in the rightof-way create a dangerous condition to life or property.

• B. Additionally, the director of public works may amend any permit upon consideration of a permit extension when the director determines that the circumstances in the area of the construction activities or the impacts of the construction activities in the public right-ofway have changed since the approval of the original permit and any previous extension thereto.

• (Ord. 26996.)

• A. The director of public works shall notify an applicant, in writing, of the director's decision to deny, amend or revoke a permit.

• B. The notice of decision shall state the grounds for denial of the application or amendment or revocation of the permit and shall notify the applicant or permittee of the hearing opportunity pursuant to Section 13.36.330.

• C. The notice of decision shall become final, unless a written request for hearing is received within ten business days after the date of notice of decision.

• (Ord. 26996.)

• A. Upon receipt of a timely written request for a hearing on a notice of decision to deny an application for permit or to amend or revoke a permit, the director of public works shall schedule a hearing. The director shall notify the applicant or permittee of the hearing date, time and location.

• B. The hearing with the director of public works shall be held within thirty days after receipt of the request for hearing.

• C. At the hearing, the permittee or applicant may present any relevant evidence. The hearing will be conducted informally and the technical rules of evidence shall not apply. The permittee or applicant may be represented by any person.

• D. After closing the hearing, the director of public works shall give a decision sustaining, reversing or modifying the decision to deny, amend or revoke the permit. A written notice of final decision shall be hand-delivered or sent by mail to the permittee or applicant.

• E. The decision of the director of public works may be appealed to the city council, whose decision on the matter shall be final.

• (Ord. 26996.)

The director of public works, and the director's designees, are hereby authorized to enforce all of the provisions of Sections 13.36.010 through 13.36.330, and any Construction Impact Mitigation Plan and encroachment permit issued thereunder by any method specified in Title 1 of the San José Municipal Code.

(Ord. 26996.)