San Jose Municipal Code Part 1 General Provisions

Footnotes:

--- (9) ---

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.

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 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.

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 manner 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-of-way 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.)

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-of-way 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.)