San Rafael Municipal Code Ch. 11.04 Encroachments in the Public Right-of-Way

The public rights-of-way are unique public resources held in trust by the city for the benefit of the public. These physically limited resources require proper management by the city to maximize their efficiency and minimize the costs to the taxpayers, to protect against foreclosure of future economic expansion because of premature exhaustion of the public rights-of-way, to provide appropriate and orderly use of public rights-of-way, to ensure the public health, safety and welfare and to minimize potential liability of the city and inconvenience to the public from private uses of the public rights-of-way. The purpose of this chapter is to serve and further the purposes identified above and to enable the city to treat similarly persons who are making a similar use of the city's public rights-of-way.

(Ord. 1862 § 5 (part), 2007).

For purposes of this chapter, certain terms are defined as follows:

A. "City" means the city of San Rafael.

B. "Director" means the director of public works of the city or his or her designee.

C. "Encroach" or "encroachment" includes going upon, over or under a public right-of-way, or using a public right-of-way or a public or private area adjacent to a public right-of-way in such a manner as to prevent, obstruct or interfere with the intended use of that way, or a modification of its mode of use, including but not limited to excavation or disturbance; erection, construction, placement or maintenance of any physical improvement thereon or thereunder; planting or maintaining any landscaping; or placement or maintenance of any waste material, except the placement of solid waste or recyclables in authorized receptacles for pick-up in accordance with Chapter 9.19 of this code.

D. "Landscaping" means any tree, shrub, grass, groundcover, plant, hedge, ornamental boulder, solid landscape feature or growing thing.

E. "Major continuing encroachment" means an encroachment by a property owner into the public right-of-way adjacent to his or her property, which is intended and permitted to continue for an indefinite period of time, and which serves or provides a benefit to the city or the public generally, such as, for example,

the provision of off-street parking in an area where such parking is inadequate, the provision or protection of a public accessway, or the promotion of the city's economic vitality or beautification. Major continuing encroachments may include, but shall not be limited to, the following:

1. Fences or walls higher than three feet (3') above natural grade which provide protection to a public street or pedestrian walking path;

2. Abutments for driveways and stairs where reasonably necessary to provide access to the public right-of-way;

3. Ground water monitoring wells.

F. "Minor continuing encroachment" means an encroachment which is intended and permitted to continue for an indefinite period of time, but which by its nature is limited in size, scale or use so that the encroachment will have little or no impact on the public health, safety or welfare, and shall include, but not be limited to, the following:

1. Flat or low-level improvements/landscaping adjacent to city streets or pedestrian walking paths, including but not limited to low-level plants and shrubs, landscape walls and fences less than three feet (3') in height, a private postal box on a post, boulders, concrete and other flatwork;

2. Bicycle racks;

3. Newspaper racks;

4. Awnings, signs, eaves or other minor architectural features of buildings extending more than four feet (4') into the public right-of-way;

5. Other minor improvements which the director determines will not inconvenience or jeopardize the city management or use of the public right-of-way.

G. "Minor encroachment permit" means an encroachment permit issued pursuant to this chapter to authorize a temporary encroachment or a minor continuing encroachment as defined herein.

H. "Moratorium street" mean any portions of the public right-of-way that were constructed or resurfaced during the five (5) year period prior to the proposed excavation and any portions of the public right of way that have been constructed or resurfaced more than five (5) years before the proposed excavation, provided that the right-of-way has a pavement condition index of seventy (70) or higher as described in the city's pavement management program and as defined in City Resolution 12371.

I. "Permittee" means any person, utility or special district that has been issued a minor encroachment permit, revocable license agreement, or utility/special district encroachment permit pursuant to this chapter or their successor in interest.

J. "Person" means any natural person, firm, joint venture, joint stock company, partnership, association, club, company, corporation, business trust, organization, or the manager, lessee, agent, servant, officer or employee of any of them or any other entity which is recognized by law as the subject of rights or duties, not including the city of San Rafael, the San Rafael Successor Agency, or their officers, employees or agents.

K. "Public right-of-way" means land which by written instrument, usage or process of law is owned by, reserved for or dedicated to the public use for street or highway purposes, or other transportation purposes, whether or not such land is actually being used or developed specifically for those purposes.

L. "Public street" means the portion of the public right-of-way of any road, street, pedestrian walking path, or alley used by or for the general public for travel purposes, including sidewalks and areas between sidewalks and the vehicular traveled way, whether or not those roads, streets, pedestrian walking paths, and alleys have been accepted as and declared to be part of the city system of public streets, except streets forming a part of the state highway system or county roads or expressways.

M. "Revocable license agreement" means a separate agreement as required by Section 11.04.050 of this chapter, between the city and the property owner stipulating the use of public right-of-way utilized by a property owner, such as, for example, the encroachment of a structure or retaining wall into the public right of way which is to be maintained by the property owner.

N. "Special district" means any public agency that has been created for the local performance of governmental or proprietary functions within limited boundaries.

O. "Street cut" means the action or result of opening, tearing up, excavating, removing or constructing any portion of any roadway, street or thoroughfare, sidewalk, driveway, curb or gutter, or any other facility existing within the public right-of-way area, for any purpose whatsoever within the jurisdiction of the city.

P. "Structure" means any physical alteration or improvement, including but not limited to a building, post, cabinet, fence, vault, sign, pole, guard rail, wall, facility, pedestrian walking path, sidewalk, driveway, track, surfacing, culvert, drainage facility, pipe, embankment or excavation.

Q. "Temporary encroachment" means an encroachment which is intended to continue for a specified, limited period of time, not to exceed one (1) year, and shall include, but not be limited to, the following:

1. Debris boxes;

2. Scaffoldings;

3. Tree trimming by private property owners or their contractors;

4. Closure for limited periods of time of public streets, driveways or public areas not under control of the state or the county;

5. Closure for limited periods of time of public sidewalks;

6. Painting/washing of building exteriors adjacent to the public right-of-way or public street;

7. Construction required for installation of sidewalks, driveway approaches, curbs and gutters, including underdrains, underground facilities, and sewer laterals;

8. Temporary construction fencing;

9. Painting of address numbers on curbs.

R. "Utility" means any entity providing electricity, gas, cable, video programming, telephone, telecommunications or other services to customers, and which pursuant to state law or local franchise is entitled to install its facilities in the public rights-of-way.

S. "Utility/special district encroachment" means any encroachment by a utility or special district.

T. "Waste material" means any rubbish, brush, earth or other material of any nature which is unused, unwanted or discarded, including any garbage, recyclable materials, solid waste and yard waste as defined in Chapter 9.19

(Ord. 1862 § 5 (part), 2007).

(Ord. No. 1915, div. 2, 12-2-2013; Ord. No. 1922, § 2, 6-16-2014)

A. It is unlawful for any person, utility or special district to encroach or to make or to cause to be made any encroachment without first having obtained the required encroachment permit or license from the director as prescribed in this chapter. The requirements herein for an encroachment permit or license shall be in addition to any other permit that may be required under this code for the work proposed. Notwithstanding the foregoing, nothing in this chapter is intended to supersede any express provisions of a franchise agreement applicable to the use of the public right-of-way within the city, and the provisions of this chapter shall be interpreted and applied so as to avoid a conflict with the terms of any such franchise agreement.

B. All obligations, responsibilities and other requirements of the permittee as described in this chapter shall be binding on subsequent owners of the encroaching structures or improvements, whether or not they have received actual notice of such obligations, responsibilities or other requirements.

C. Any encroachment for which a permit or license is required and for which no permit or license has been issued by the city pursuant to this chapter or other applicable regulation, shall be deemed a violation of this chapter and a public nuisance which may be abated by the city pursuant to Title 1 of this code.

D. Unless specifically provided otherwise in the permit approval, any permit or license granted under this chapter shall be nonexclusive and shall be subject to the right of the city, or any other person entitled thereto, to use the designated part of the public right-of-way for any purpose for which it may be lawfully used, and no part of the public right-of-way shall be unduly obstructed at any time.

(Ord. 1862 § 5 (part), 2007).

Notwithstanding Section 11.04.030.010 above, no permit or license shall be required pursuant to this chapter for any of the following:

A. The actions of any officer or employee of the city engaged in the discharge of official duties.

B. The performance of work under contracts to the city, including work for city projects.

C. Encroachments existing prior to the effective date of this chapter; provided, however, that nothing in this chapter shall preclude the director from requiring an appropriate encroachment permit for or removal of any such preexisting encroachment where the director determines the encroachment adversely affects the safety, capacity or integrity of the city's right-of-way.

D. Maintenance or repair of existing pipes, facilities, conduits or other structures lawfully on or under a public right-of-way by a utility or special district, where such maintenance or repair work will not affect traffic in an arterial street.

E. Performing the actual emergency street cut or excavation in the public right-of-way by a utility or special district to repair a broken or defective pipe, facility or conduit lawfully on or under any public street, as may be necessary for the preservation of life and property when an urgent necessity therefore arises and the offices of the city are closed, provided that reasonable vehicular and pedestrian barriers or other traffic controls shall be provided during the performance of any such repairs. The utility or special district performing the repair work shall notify the city's public works department by telephone at the time any such repair work is commenced and apply for an encroachment permit retroactively as specified in Section 11.04.060 of the Municipal Code for each emergency location within seventy-two (72) hours of performing the work. The utility shall pay all encroachment permit fees for emergency work as described by the latest schedule of fees developed by the city and described herein.

F. Tree work, including but not limited to planting, trimming, or removal of any new or existing tree within the public right-of-way where a permit has been issued for such work pursuant to Chapter 11.12, and no traffic lane closure is anticipated.

G. Sidewalk cafes and restaurants, which shall be governed by the provisions and requirements of this code for outdoor dining license agreements.

H. Street closures for special events specifically approved by the city council.

I. Awnings, signs, eaves or other minor architectural features of buildings extending no more than four feet (4') into the public right-of-way; provided that nothing herein shall authorize the placement of signs directly on any street or the right-of-way.

J. In the downtown zoning districts where buildings are permitted to be constructed to the property line (see Title 14, Zoning), no license agreement is required for bay windows, balconies and projecting awnings provided that these architectural features: 1) are approved through design review; 2) extend no more than four feet (4') into the public right-of-way; 3) are designed to provide adequate vertical clearance from the street grade; and 4) do not obstruct or impair above-ground utilities, street lights or street signals. A permit may be required for construction activities.

(Ord. 1862 § 5 (part), 2007).

(Ord. No. 1922, § 3, 6-16-2014; Ord. No. 1964, § 2(Exh. A), 11-19-2018)

A. As a condition of issuance of a permit or license pursuant to this chapter, the applicant or the contractor who is to perform the work shall secure, at its expense, a policy of broad form commercial general liability insurance naming the city as an additional insured in an amount not less than one million dollars ($1,000,000.00) and in a form as approved by the director. The director may increase, decrease or waive the insurance requirements and/or limits set forth above in cases in which he determines that special circumstances justify such an increase, decrease or waiver.

B. Liability insurance shall not be required of any utility or special district which is authorized by law to establish or maintain any works or facilities in, under, or over the public right-of-way.

(Ord. 1862 § 5 (part), 2007).

A. Every minor encroachment permit, revocable license agreement, newspaper rack permit, and utility/special district encroachment permit issued pursuant to this chapter shall be subject to, and shall contain a provision for, a duty by the permittee:

1. To the maximum extent permitted by law, to indemnify, defend and hold harmless the city, its officials, agents, employees and volunteers 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 but not limited to attorney's and expert fees and court costs, arising out of or connected with the installation, operation and maintenance of any facilities in, or the use of any public right-of-way by, permittee or permittee's employees, officers, officials, agents, transferees, contractors or subcontractors pursuant to the permit or agreement issued under this chapter; provided, that the obligation to indemnify the city under this subsection shall not apply to any liabilities, losses, claims, actions, causes of action or demands arising from city's sole negligence, willful misconduct or criminal acts.

2. To the maximum extent permitted by law, to defend, indemnify, release and hold harmless the city, its agents, officers, attorneys, employees, boards and commissions from any claim, action or proceeding brought against any of the foregoing individuals or entities ("indemnitees"), the purpose of which is to attack, set aside, void or annul the approval of a permit or revocable license agreement issued pursuant to this chapter, or the adoption of any environmental document which accompanies such permit or agreement.

3. In the event that any claim, action or proceeding is brought as described in subsection (A)(1) or (A)(2) of this section, the city shall promptly notify the permittee of any such claim, action or proceeding, and the city council will cooperate fully in the defense of such claim, action, or proceeding. In the event the permittee is required to defend the city in connection with any said claim, action or proceeding, the city shall retain the right to approve any and all settlements affecting the validity or interpretation of a city ordinance or regulation, which approval shall not be unreasonably withheld. Nothing herein shall prohibit the city from participating in the defense of any claim, action or proceeding, provided that if the city chooses to have counsel of its own to defend any claim, action or proceeding where applicant already has retained counsel to defend the city in such matters, the fees and the expenses of the counsel selected by the city shall be paid by the city.

B. Where the liability and indemnification requirements provided herein conflict with the provisions of a franchise or other agreement between a utility or special district and the city, the provisions of such franchise or agreement shall apply.

(Ord. 1862 § 5 (part), 2007).

(Ord. No. 1915, div. 3, 12-2-2013)

A. All work done under a permit or license shall conform to the standard specifications and to the conditions of approval established from time to time by resolution of the city council or, in the absence of established specifications, to recognized standards of design and construction and approved practices in connection with the work to be done. All work shall be done subject to the satisfaction and approval of the director.

B. If the work, use or encroachment authorized in the permit or license issued pursuant to this chapter interferes with the established drainage, the permittee shall provide for proper drainage as directed by the director.

C. All operation, maintenance and repairs to a continuing encroachment shall conform to the conditions of approval of the underlying encroachment permit, to the terms of any applicable license or agreement with the city, and to established and recognized standards of construction, design, operation and maintenance for the particular type of encroachment.

D. In those areas and portions of the city where the transmission or distribution facilities of any person providing telephone service, cable service, or electric service are underground, all other such facilities shall be constructed, operated, and maintained underground unless such requirement is in conflict with a specific state or local franchise agreement, or in conflict with a state statute or regulation applicable to a charter city.

E. Where existing poles or other wire-holding structures are available for use, the Director may require such poles and structures to be used if the director determines that the public health, safety, welfare or convenience would be enhanced by such installation, and the terms of the use are just and reasonable.

F. Any excavation or construction work that can damage a moratorium street shall not be allowed unless the work occurring is required to address an emergency that poses a threat to health and safety of the general public. Emergency work on a moratorium street may be allowed at the discretion of the public works director. The extent of the repair and restoration of a moratorium street shall be left up to the discretion of the public works director and in general will be extended to encompass a larger area to provide continuity with the existing paving.

(Ord. 1862 § 5 (part), 2007).

(Ord. No. 1922, § 4, 6-16-2014)

A. The permittee shall at all times obey and enforce all applicable safety orders, rules and recommendations of the state Division of Industrial Safety and shall comply with all applicable federal, state and local laws, ordinances, codes and regulations.

B. During construction, the permittee shall immediately notify the city of any and all hazardous conditions or nuisances arising from permittee's actions and shall take immediate action to remedy said condition or nuisance. The director may take any action necessary to remedy any hazardous condition or nuisance if there is insufficient time, under the circumstances, to first provide notice to the permittee, or should the permittee fail to take immediate and appropriate action upon receipt of notice from city.

C. The permittee shall provide, erect and maintain any traffic control devices, such as lights, warning signs, signals, flares, patrols and other appropriate safeguards necessary to protect the public during the course of work or maintenance of an encroachment, in compliance with the Manual of Uniform Traffic Control Devices ("MUTCD"), the California Supplement thereto or any other governing documents specified by the director, and any traffic control plan required as part of the application for the permit.

D. The standards and requirements set forth in this chapter are intended to be the minimum required standards. The failure of the city to require any specific safety device or procedure shall not excuse the permittee from complying with any other requirements or standards or to take reasonable, appropriate and prudent safety precautions indicated by the specific circumstances. At any time, the city may provide, erect, relocate or remove any safety device or measure as necessary or cancel the permit or license and restore the public right-of-way at the sole expense of the permittee.

E. The permittee shall install and maintain such temporary facilities, subject to such standards as may be adopted by the director, as will ensure accessibility to the public streets and sidewalks during construction by persons with disabilities, as required by Title II of the Americans with Disabilities Act.

(Ord. 1862 § 5 (part), 2007).

Any permit issued under this chapter for excavation work in the public right-of-way shall conform to the standard specifications and to the conditions of approval established from time to time by resolution of the city council, including any requirement for the posting of security. All work shall be done subject to the satisfaction and approval of the director.

(Ord. 1862 § 5 (part), 2007).

Any permit issued under this chapter for the construction of sidewalks, driveway approaches, curbs and gutters in the public right-of-way shall conform to the standard specifications established from time to time by resolution of the city council, including any requirement for the posting of security. All work shall be done subject to the satisfaction and approval of the director.

(Ord. 1862 § 5 (part), 2007).

A. A copy of any permit or license issued pursuant to this chapter shall be kept at the site of any construction work pertaining to the encroachment and shall be shown to any authorized representative of the city upon demand.

B. A permit or license issued for a continuing encroachment involving the residence or place of business of the permittee may be kept at the residence or place of business, or otherwise safeguarded during the term of validity, and shall be made available to an authorized representative of the city within a reasonable time after demand therefor is made.

(Ord. 1862 § 5 (part), 2007).

A. The director may require the permittee to perform special inspections of and maintain records for facilities constructed in the right-of-way. The city also reserves the right to conduct periodic inspections throughout the construction phases of the project and to have access to any pertinent records of the permittee.

B. Final inspection of construction may be conducted by the director. At the director's discretion, the permittee may be required to be present. The permittee shall allow reasonable time for the city to prepare and provide a list of items requiring corrective action. The permittee shall undertake timely correction of all such items.

C. All persons, utilities and special districts owning underground facilities located in the city shall keep current, adequate and complete maps and records of same. Such maps and records shall be made available to the city within a reasonable time upon request.

(Ord. 1862 § 5 (part), 2007).

A. At least forty-eight (48) hours prior to beginning any work which involves or includes excavation, construction of sidewalks, curbs, gutters or driveway approaches, or making, placing or causing an obstruction in the traveled way, the permittee shall notify the director and shall comply with any requirements of the director for placing notification to the public at the site of the proposed work.

B. The permittee shall complete the work or use authorized by a permit or license issued pursuant to this chapter within the time specified in the permit or license and shall notify the director upon completion. No work shall be deemed to be complete, nor shall the work be operated or placed into service, without written authorization, notification of completion, or acceptance by the director. If at any time the director determines that the prosecution or completion of the work or use authorized is delayed due to lack of diligence on the part of the permittee, the permit or license may be canceled and the right-of-way restored to its former condition at the sole cost of the permittee. The permittee shall reimburse the city for all expenses incurred by the city in restoring the right-of-way.

C. The director may extend any time period if commencement or completion of the work for which the permit or license was issued was delayed because of inclement weather, strikes, an act of God or other causes not within the control of the permittee.

(Ord. 1862 § 5 (part), 2007).

A. The permittee's structures shall be placed, constructed, owned, controlled, operated, managed, and used solely and exclusively for the purposes and uses expressly set forth in the encroachment permit or license. The permittee shall not in any way use, or authorize or allow another person to use, any structure subject to the permittee's encroachment permit or license for any purpose or use other than the purposes and uses expressly set forth in said permit or license except where such third party use is specifically authorized by the city.

B. The permittee shall be knowledgeable of and comply with all applicable federal, state and local laws, regulations and orders which may in any manner affect the encroachment authorized by the permit or license. The permittee shall insure that its agents, employees and contractors are at all times in compliance with all applicable laws, regulations and orders.

(Ord. 1862 § 5 (part), 2007).

A. Whenever the director finds that a suspension of an encroachment permit or license is necessary to protect the public health or safety from imminent danger, the director may immediately suspend any such permit or license pending a hearing for remedial action or revocation. The director shall, within three (3) working days of the emergency suspension of the permit or license, notify the permittee of such suspension by written notice, personally served upon the permittee, or mailed by first class mail, postage prepaid, to the last known address of the permittee. The permittee may, within fifteen (15) days after service of such a written notice of suspension, file with the city manager a request for hearing with regard to such emergency suspension. The city manager or his designee shall schedule a hearing on the suspension within five (5) working days of receipt of a request for hearing.

B. If the city manager or his designee, after the hearing, finds that the public health or safety requires correction or alteration of any condition caused by, or existing on the site of the encroachment, he shall issue one or more of the following:

1. A warning;

2. An order to correct any particular noncompliance;

3. A revocation of the encroachment permit or license;

4. A continued suspension of the encroachment permit or license;

5. A modification or reinstatement of the encroachment permit or license, with conditions.

C. The city manager or his designee shall, within ten (10) days of the hearing, render a written opinion, stating the findings upon which the decision is based, and the action taken. The decision of the city manager or his designee shall be final.

(Ord. 1862 § 5 (part), 2007).

Any violation of this chapter may be enforced either as an infraction or as a misdemeanor, or by any remedy available to the city under Title 1 of this code, or under state law.

(Ord. 1862 § 5 (part), 2007).

A temporary encroachment or minor continuing encroachment shall be approved only upon issuance of a minor encroachment permit. An application for a minor encroachment permit, including any renewal or extension of an existing permit, shall be made on a form prescribed by the director. The application shall be signed by the applicant and shall include the following:

A. The name, address and telephone number of the applicant;

B. The name, address and telephone number of the contractor if any proposed work is to be done by a contractor;

C. The location, purpose, extent and nature of the proposed work;

D. The period of time when the proposed work will be performed;

E. A traffic and pedestrian control plan for the location of the proposed work, if applicable;

F. A certificate of insurance from the applicant and contractor's insurance carrier in a form satisfactory to the city, and naming the city, its officers and employees as additional insureds;

G. A key map and detailed improvement plan showing all facilities to be located in the public right-of-way, including the material of construction and horizontal and vertical locations with respect to the property lines and grade lines, existing utilities and all other pertinent facilities and information required by the director. Unless exempted by state law, or deemed unnecessary by the director, the detailed improvement plan shall be prepared by a California registered professional civil engineer;

H. Any other specifications and analyses the director may require to describe the work, its location in and its effect on the right-of-way, including the mode of operation, maintenance and use;

I. Current maps and records of the underground facilities at the site, if applicable, unless this requirement is waived by the director.

Until the applicant has submitted a completed and signed application, all required supporting documents and information and the required fees, the application shall not be deemed complete.

(Ord. 1862 § 5 (part), 2007).

An application for minor encroachment permit shall be filed with the director, and shall be accompanied by payment to the city of an application fee, as set forth in the city's master fee schedule, to cover the costs of processing the application. The director shall act upon an application under this section within thirty (30) days after the application is deemed complete.

(Ord. 1862 § 5 (part), 2007).

A minor encroachment permit may be approved by the director upon making the following findings, and shall be subject to any and all applicable requirements in Section 11.04.030 of this chapter and all of the following conditions:

A. Findings.

1. The application is complete and all of the requested information provided to the city in connection therewith.

2. All of the information contained in and provided with the application is true and correct.

3. If the application is for a renewal or extension of an existing permit, the permittee is in compliance with the current permit and conditions.

4. That with the conditions imposed, the encroachment shall not be detrimental to the public health, safety and welfare.

B. Conditions.

1. All facilities shall be located, constructed, operated, and maintained in the time, place and manner that cause the least interference with the public's use of the public right-of-way, the city's management and use of the right-of-way, and the rights or reasonable convenience of property owners who adjoin the public right-of-way, all as approved by the director.

2. The permittee shall maintain all encroachments in a safe and clean manner.

3. The permittee shall promptly remove all graffiti on any encroachment.

4. The permittee shall contact Underground Service Alert (USA) prior to commencing, and as appropriate during, any permitted work.

5. Upon the request of any person who has contracted to perform work on a public right-of-way, the permittee shall provide accurate detailed information regarding the location of his existing and proposed structures in the public right-of-way.

6. Such other reasonable conditions, including specific accessibility facilities and accommodations, as may be deemed necessary by the director to protect the public health, interest, safety and welfare.

C. Denial of Application. The director's denial of a permit shall be in writing specifying the reasons for denial.

(Ord. 1862 § 5 (part), 2007).

Any person aggrieved by the director's action on a minor encroachment permit application may appeal by submitting a written appeal to the city manager, along with any applicable appeal fee as provided in the city's master fee schedule, within fifteen (15) days of the date on which the permit was issued or on which the application was denied. The city manager, or his designee, shall hold a hearing on the appeal within thirty (30) days of receipt of the appeal, and shall give the applicant and the appellant at least ten (10) days' written notice of the time of the hearing. The decision by the city manager or his designee on the appeal shall be final.

(Ord. 1862 § 5 (part), 2007).

Each minor encroachment permit shall specify its duration and shall become null and void after the date so specified, or any extension thereof, unless the permit is terminated earlier by completion of the work, discontinuance of the use, removal of the encroachment for which the permit was issued, failure to comply with conditions upon which the permit was issued, or suspension or revocation. A minor encroachment permit for a minor continuing encroachment shall be considered to be of indeterminate duration.

(Ord. 1862 § 5 (part), 2007).

A. Upon completion of the project for which a minor encroachment permit was issued, or when required by the director, the permittee shall replace, repair or restore the public right-of-way to its prior condition unless otherwise provided in the permit. The permittee shall remove all obstructions, impediments, materials or rubbish caused or placed upon the 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.

B. By the acceptance of the minor encroachment permit the permittee agrees to exercise reasonable care in inspecting and maintaining the area affected by the encroachment after completion of all work.

C. The permittee shall immediately repair any damage or nuisance in any portion of the public right-of-way resulting from the work done under the minor encroachment permit. In the event that the permittee fails to act promptly or should the exigencies of the damage require repairs or replacement to be made before the permittee can be notified by the director or can respond to notification, the city may at its option make the necessary repairs or replacements or perform the necessary work and the permittee shall be charged with all the expenses incurred in the performance of the work.

D. The permittee shall bear the full and complete cost of repair and restoration under this section.

(Ord. 1862 § 5 (part), 2007).

A. If any future construction, reconstruction or maintenance work is required or requested by the city in the public right-of-way that necessitates the relocation, removal or abandonment of an encroachment, the permittee shall relocate, remove or abandon the encroachment at the permittee's sole expense.

B. When relocation is required or requested, the director shall make written demand of the permittee that the encroachment be relocated within the right-of-way to a satisfactory location provided by the director, and shall designate a reasonable time for such relocation or removal. In determining what is a reasonable time under this section, the director shall take into consideration the nature of the encroachment, the urgency of the need for its removal, the cost of its removal, the difficulty of its removal, the value of the property to the owner, and other facts peculiar to the particular situation. If the permittee fails to comply with such instructions, the city may relocate the encroachment at the sole expense of the permittee.

(Ord. 1862 § 5 (part), 2007).

A. Any minor encroachment permit may be suspended or revoked by the director where he finds that:

1. The permittee has violated any provision of this chapter or any condition of the permit; or

2. The permittee has failed to pay any required fees, or to post or maintain any bond or insurance required by this chapter; or

3. The encroachment for which the permit was granted adversely affects the safety, capacity or integrity of the city's right-of-way or increases the city's liability exposure; or

4. The encroachment is causing the city to incur substantial additional maintenance costs; or

5. Material misrepresentations, omissions or inaccuracies were made in the application for the permit.

B. The director shall give the permittee at least ten (10) days' written notice of a hearing before the city manager or his designee on the suspension or revocation of a permit issued pursuant to this chapter, setting forth the grounds for such action. The hearing shall be held within thirty (30) days after service of written notice of the hearing or at such later time as may be agreed to by the permittee. The decision of the city manager or his designee shall be final.

(Ord. 1862 § 5 (part), 2007).

An applicant may apply for approval of a major continuing encroachment into the public right-of-way adjacent to property owned by the applicant in the city. A major continuing encroachment shall be approved only upon the execution between the city and the applicant of a revocable license agreement, in a form provided by the director, providing for the use, operation and maintenance of the encroachment in the public right-of-way, and such executed revocable license agreement shall be deemed to be the encroachment permit. An application for a revocable license agreement, including any amendment thereto, shall be made on a form prescribed by the director. The application shall be signed by the applicant and shall include the following:

A. The name, address and telephone number of the applicant;

B. The name, address and telephone number of the contractor if any proposed work is to be done by a contractor;

C. The location, purpose, extent and nature of the proposed work;

D. The period of time when the proposed work will be performed;

E. A traffic and pedestrian control plan for the location of the proposed work, if applicable;

F. A certificate of insurance from the applicant and contractor's insurance carrier in a form satisfactory to the city, and naming the city, its officers and employees as additional insureds;

G. A key map and detailed improvement plan showing all facilities to be located in the public right-of-way, including the material of construction and horizontal and vertical locations with respect to the property lines and grade lines, existing utilities and all other pertinent facilities and information required by the director. Unless exempted by state law, or deemed unnecessary by the director, the detailed improvement plan shall be prepared by a California registered professional civil engineer;

H. Any other specifications and analyses the director may require to describe the work, its location in and its effect on the right-of-way, including the mode of operation, maintenance and use;

I. Current maps and records of the underground facilities at the site, if applicable, unless this requirement is waived by the director.

Until the applicant has submitted a completed and signed application, all required supporting documents and information and the required fees, the application shall not be deemed complete.

(Ord. 1862 § 5 (part), 2007).

A. An application for a revocable license agreement shall be filed with the director in duplicate, and shall be accompanied by payment to the city of an application fee, as set forth in the city's master fee schedule, to cover the costs of processing the application.

B. The director shall circulate one copy of the application to the city's planning division, which shall review the application and determine whether any planning permits or approvals shall be required for the proposed continuing encroachment, and if so, the director may deem the application for a revocable license agreement to be incomplete until such planning permits or approvals have been issued.

C. The director shall provide not less than ten (10) days' written notice by first class mail to occupants and to owners (as shown on the county assessor's latest tax roll) of properties located within three hundred feet (300') of the proposed encroachment, and to any homeowners' association in the neighborhood of the proposed encroachment, advising of the filing of an application for approval of an encroachment into the public right-of-way, describing the proposed encroachment and its location, and providing an opportunity to submit written comments regarding the application to the city prior to the director's action on the application.

D. The director shall act upon an application for a revocable license agreement within sixty (60) days after the application is deemed complete.

(Ord. 1862 § 5 (part), 2007).

An application for a revocable license agreement may be approved by the director upon making the following findings, and shall be subject to any and all requirements in Section 11.04.030 of this chapter and all of the following conditions:

A. Findings.

1. The applicant is the owner of the property adjacent to the proposed major continuing encroachment.

2. The application is complete and all of the requested information has been provided to the city in connection therewith.

3. All of the information contained in and provided with the application is true and correct.

4. A general description of the benefit(s) to the city or the public generally that the director finds will be provided or served by the proposed major continuing encroachment.

5. The application is in conformance with the design and location standards for aboveground facilities adopted by resolution of the city council.

6. Where the application is to amend an existing revocable license agreement, the applicant is in compliance with all the terms and conditions of the existing revocable license agreement.

7. That with the conditions imposed, the major continuing encroachment shall not be detrimental to the public health, safety and welfare.

B. Conditions.

1. All facilities shall be located, constructed, operated, and maintained in the time, place and manner that cause the least interference with the public's use of the public right-of-way, the city's management and use of the right-of-way, and the rights or reasonable convenience of property owners who adjoin the public right-of-way, all as approved by the director.

2. The permittee shall maintain all encroachments in a safe and clean manner.

3. The permittee shall promptly remove all graffiti on any encroachment.

4. The permittee shall contact Underground Service Alert (USA) prior to commencing, and as appropriate during, any permitted work.

5. Upon the request of any person who has contracted to perform work on a public right-of-way, persons subject to this chapter shall provide accurate detailed information regarding the location of their existing and proposed structures in the public right-of-way.

6. Such other reasonable conditions, including specific accessibility facilities and accommodations, as may be included in the revocable license agreement.

C. Denial. The director's denial of an application for a revocable license agreement shall be in writing specifying the reasons for denial.

(Ord. 1862 § 5 (part), 2007).

Any person aggrieved by the director's action on an application for a revocable license agreement may appeal by submitting a written appeal to the city manager, along with any applicable appeal fee as provided in the city's master fee schedule, within fifteen (15) days of the date on which the revocable license agreement was executed or on which the application was denied. The city manager, or his designee, shall hold a hearing on the appeal within thirty (30) days of receipt of the appeal, and shall give the applicant and the appellant at least ten (10) days' written notice of the time of the hearing. The decision by the city manager or his designee on the appeal shall be final.

(Ord. 1862 § 5 (part), 2007).

Upon issuance, the director shall cause a revocable license agreement to be recorded in the office of the Marin County recorder.

(Ord. 1862 § 5 (part), 2007).

A revocable license agreement for a continuing encroachment shall terminate on the date specified therein, or if no date is specified, it shall be considered to be of indeterminate duration; provided, however, that any encroachment permitted pursuant to a revocable license agreement shall be valid only so long as the permittee is in compliance with the terms and conditions of that agreement. Should the title to the improvements which are the subject of a revocable license agreement hereunder be sold or otherwise transferred, the new title holder shall be required to execute a new revocable license agreement within thirty (30) days following the transfer of title, or, upon direction from the director, shall remove all such encroachments from the public right-of-way.

(Ord. 1862 § 5 (part), 2007).

A. Upon completion of the project for which the revocable license agreement was approved, or when required by the director, the permittee shall replace, repair or restore the public right-of-way to its prior condition unless otherwise provided in the revocable license agreement.

B. By the acceptance of the revocable license agreement the permittee agrees to exercise reasonable care in inspecting and maintaining the area affected by the encroachment after completion of all work.

C. The permittee shall immediately repair any damage or nuisance in any portion of the public right-of-way resulting from the work done under the revocable license agreement or from the maintenance of the permitted continuing encroachment. In the event that the permittee fails to act promptly or should the exigencies of the damage require repairs or replacement to be made before the permittee can be notified by the director or can respond to notification, the city may at its option make the necessary repairs or replacements or perform the necessary work and the permittee shall be charged with all the expenses incurred in the performance of the work.

D. The permittee shall bear the full and complete cost of repair and restoration under this section.

(Ord. 1862 § 5 (part), 2007).

A. If any future construction, reconstruction or maintenance work is required or requested by the city in the public right-of-way that necessitates the relocation, removal or abandonment of an encroachment, the permittee shall relocate, remove or abandon the encroachment at the permittee's sole expense.

B. When relocation is required or requested, the director shall make written demand of the permittee that the encroachment be relocated within the right-of-way to a satisfactory location provided by the director, and shall designate a reasonable time for such relocation or removal. In determining what is a reasonable time under this section, the director shall take into consideration the nature of the encroachment, the urgency of the need for its removal, the cost of its removal, the difficulty of its removal, the value of the property to the owner, and other facts peculiar to the particular situation. If the permittee fails to comply with such instructions, the city may relocate the encroachment at the sole expense of the permittee.

(Ord. 1862 § 5 (part), 2007).

A. Any revocable license agreement may be suspended or revoked by the director where he finds that:

1. The permittee has violated any provision of this chapter or any condition of the revocable license agreement; or

2. The permittee has failed to pay any required fees, or to post or maintain any bond or insurance required by this chapter; or

3. The encroachment for which the permit was granted adversely affects the safety, capacity or integrity of the city's right-of-way or increases the city's liability exposure; or

4. The encroachment is causing the city to incur substantial additional maintenance costs; or

5. Material misrepresentations, omissions or inaccuracies were made in the application for the permit.

B. The director shall give the permittee at least ten (10) days' written notice of a hearing before the city manager or his designee on the suspension or revocation of a permit issued pursuant to this chapter, setting forth the grounds for such action. The hearing shall be held within thirty (30) days after service of written notice of the hearing or at such later time as may be agreed to by the permittee. The decision of the city manager or his designee shall be final.

(Ord. 1862 § 5 (part), 2007).

Any encroachment by a utility or special district shall be approved only upon issuance of a utility/special district encroachment permit. An application for a utility/special district encroachment permit, including any amendment to an existing permit, shall be made on a form prescribed by the director. Simultaneous applications for multiple specified locations may be processed as a single "master" permit. The application shall be signed by an authorized representative of the applicant and shall include the following:

A. The name, address and telephone number of the applicant, and of the authorized representative;

B. The name, address and telephone number of the contractor if any proposed work is to be done by a contractor;

C. The location, purpose, extent and nature of the proposed work, including whether the encroachment will be temporary or continuing;

D. The period of time when the proposed work will be performed;

E. A traffic and pedestrian control plan for the location of the proposed work, if applicable;

F. A key map and detailed improvement plan showing all facilities to be located in the public right-of-way, including the material of construction and horizontal and vertical locations with respect to the property lines and grade lines, existing utilities and all other pertinent facilities and information required by the director;

G. Any other specifications and analyses the director may require describing the work, its location in and its effect on the right-of-way, including the mode of operation, maintenance and use;

H. The written order or consent to work thereunder, if required by law, issued by the California Public Utilities Commission or any other public district, agency or body having jurisdiction, as applicable. A utility/special district encroachment permit shall not be approved unless and until any required order or consent is first obtained and filed with the director.

Until the applicant has submitted a completed and signed application, all required supporting documents and information and the required fees, the application shall not be deemed complete.

(Ord. 1862 § 5 (part), 2007).

A. An application for utility/special district encroachment permit shall be filed with the director and shall be accompanied by payment to the city of an application fee, as set forth in the city's master fee schedule, to cover the costs of processing the application.

B. For those applications where an aboveground encroachment is proposed, the director shall provide not less than ten (10) days' written notice by first class mail to occupants and to owners (as shown on the county assessor's latest tax roll) of properties located within three hundred feet (300') of the proposed encroachment, and to any homeowners' association in the neighborhood of the proposed encroachment, advising of the filing of an application for approval of an encroachment into the public right-of-way, describing the proposed encroachment and its location, and providing an opportunity to submit written comments regarding the application to the city prior to the director's action on the application. Notwithstanding the foregoing, no notice shall be required for any application limited to installation of utility poles, anchors or small cabinets less than four (4) cubic feet in size or for any underground excavations or related work.

C. The director shall act upon an application for a utility/special district encroachment permit within sixty (60) days after the application is deemed complete.

(Ord. 1862 § 5 (part), 2007).

A utility/special district encroachment permit may be approved by the director upon making the following findings, and shall be subject to any and all requirements in Section 11.04.030 of this chapter and all of the following conditions:

A. Findings.

1. The application is complete and all of the requested information has been provided to the city in connection therewith.

2. All of the information contained in and provided with the application is true and correct.

3. The application is in conformance with the design and location standards for aboveground facilities adopted by resolution of the city council.

4. That with the conditions imposed, the utility/special district encroachment shall not be detrimental to the public health, safety and welfare.

B. Conditions.

1. All facilities shall be located, constructed, operated, and maintained in the time, place and manner that cause the least interference with the public's use of the public right-of-way, the city's management and use of the right-of-way, and the rights or reasonable convenience of property owners who adjoin the public right-of-way, all as approved by the director.

2. The permittee shall maintain all encroachments in a safe and clean manner.

3. The permittee shall promptly remove all graffiti on any encroachment.

4. The permittee shall contact Underground Service Alert (USA) prior to commencing, and as appropriate during, any permitted work.

5. Upon the request of any person who has contracted to perform work on a public right-of-way, persons subject to this chapter shall provide accurate detailed information regarding the location of their existing and proposed structures in the public right-of-way.

C. Denial. The director's denial of an application for utility/special district encroachment permit shall be in writing specifying the reasons for denial.

(Ord. 1862 § 5 (part), 2007).

Any person aggrieved by the director's action on a utility/special district encroachment permit application may appeal by submitting a written appeal to the city council, along with any applicable appeal fee as provided in the city's master fee schedule, within fifteen (15) days of the date on which action was taken on the application. The city council shall hold a hearing on the appeal at its next regularly scheduled meeting not less than fourteen (14) days after receipt of the appeal, and shall give the applicant and the appellant at least ten (10) days' written notice of the time of the hearing. The decision by the city council on the appeal shall be final.

(Ord. 1862 § 5 (part), 2007).

A utility/special district encroachment permit shall terminate on the date specified therein, or if no date is specified, it shall be considered to be of indeterminate duration.

(Ord. 1862 § 5 (part), 2007).

A. Upon completion of the project for which the permit was issued, or when required by the director, the permittee shall replace, repair or restore the public right-of-way to its prior condition unless otherwise provided in the permit.

B. By the acceptance of the permit the permittee agrees to exercise reasonable care in inspecting and maintaining the area affected by the encroachment after completion of all work.

C. The permittee shall promptly repair any damage or nuisance in any portion of the public right-of-way, resulting from the work done under the permit or from the maintenance of the encroachment in the public right-of-way. In the event that the permittee fails to act promptly or should the exigencies of the damage require repairs or replacement to be made before the permittee can be notified by the director or can respond to notification, the city may at its option make the necessary repairs or replacements or perform the necessary work and the permittee shall be charged with all the expenses incurred in the performance of the work.

D. The permittee shall bear the full and complete cost of repair and restoration under this section.

(Ord. 1862 § 5 (part), 2007).

A. If any future construction, reconstruction or maintenance work is required by the city in the public right-of-way that necessitates the relocation, removal or abandonment of an encroachment, the permittee shall relocate, remove or abandon the encroachment at the permittee's sole expense, unless such requirement is in conflict with a specific state or local franchise agreement, or in conflict with a state statute applicable to a charter city.

B. When relocation is required, the director shall make written demand of the permittee that the encroachment be relocated within the right-of-way to a satisfactory location provided by the director, and shall designate a reasonable time for such relocation or removal. In determining what is a reasonable time under this section, the director shall take into consideration the nature of the encroachment, the urgency of the need for its removal, the cost of its removal, the difficulty of its removal, the value of the property to the owner, and other facts peculiar to the particular situation.

(Ord. 1862 § 5 (part), 2007).

A. Permit required. No person shall install, use, maintain, or place any periodical into, any newspaper rack which in whole or in part rests upon, in, or over any portion of any city street, sidewalk or right-of-way, unless a newspaper rack encroachment permit has been first obtained pursuant to this chapter.

B. Scope of Permit.

1. A newspaper rack encroachment permit authorizes the permittee to use a city-owned newspaper box at a specified city-owned newspaper rack location, or to place or maintain a privately-owned newspaper rack and/or newspaper box in a City-approved location.

2. Newspaper rack encroachment permits shall be issued for a one (1) calendar-year period. Permittees who maintain their newspaper racks and/or boxes in accordance with this chapter shall be eligible to renew their permit and will be given first priority to remain in their current locations.

C. Applications. Permit applications shall be in a form determined by the director, and shall be available at the department of public works and for download from the city's website. Applications shall be filed with the department of public works and shall not be deemed complete until all required supporting documents, information, and fees have been submitted. Every application shall include the following:

1. A one-time application fee to cover the city's costs for processing the application, in an amount to be established by resolution of the city council from time to time;

2. Contact information, including name, address, telephone number and email address of the person or persons applying for the permit and for the person or persons responsible for use and maintenance of the newspaper racks and/or newspaper box(es), if different;

3. A detailed description of the number and location of newspaper racks and/or newspaper boxes proposed to be used; and

4. A detailed installation plan for a proposed newspaper rack, showing location, dimensions, method of attachment to the ground, and such other information as may be required by the director.

D. Action on application. The director shall act upon an application under this section after the application is deemed complete.

1. In considering the application, the director shall retain discretion to determine the location of newspaper rack installation, considering the following criteria:

a. Placement of a requested newspaper rack shall not impede public access or mobility;

b. The minimum accessible path of travel as defined in the city's building codes shall be maintained at all times. In no instance shall the width of a sidewalk be less than forty-eight (48) inches.

2. A newspaper rack encroachment permit may be issued by the director upon making all of the following findings:

a. A newspaper rack and newspaper box can be installed safely, or a newspaper rack exists and a newspaper box therein is available in the location proposed by the applicant;

b. Issuance of the permit will not result in any single periodical having more than one (1) newspaper box per newspaper rack, or within fifty (50) feet of another newspaper rack carrying that periodical; and

c. The applicant has complied with all applicable requirements of this chapter, including securing all required insurance pursuant to in Section 11.04.030.030.

3. If an application for a newspaper rack encroachment permit is denied, in whole or in part, the director shall notify the applicant in writing, explaining the reasons for denial and the procedures for appeal.

E. Appeal: The applicant may appeal a decision of the director on a newspaper rack encroachment permit application to the city manager in writing within ten (10) calendar days following the director's action, stating the grounds with particularity. The city manager or his or her designee shall schedule a hearing upon not less than ten (10) calendar days' notice to the appellant. At the hearing, the appellant shall have the opportunity to present oral and written evidence and arguments in support of the appeal. Any decision of the director of public works shall be stayed pending final decision of the city manager or his or her designee, which shall be issued in writing within ten (10) calendar days after the conclusion of the hearing. The decision of the city manager or his or her designee shall be final.

(Ord. No. 1915, div. 4, 12-2-2013)

A. Downtown Newspaper Rack Zone. A "downtown newspaper rack zone" is hereby established, covering and including all streets, sidewalks, and public rights-of-way on or within the perimeter of the area defined by Hetherton Street between Mission Avenue and Second Street, Second Street between Hetherton and the beginning of Miracle Mile, Fourth Street from the beginning of the Miracle Mile to H Street, H Street between Fourth Street and Mission Avenue, and Mission Avenue between H Street and Hetherton Street. Notwithstanding anything in Section 11.04.070.010 to the contrary, within the downtown newspaper rack zone:

1. The city shall install and own all newspaper racks and newspaper boxes; all privately-owned newspaper racks and newspaper boxes shall be prohibited. A permit pursuant to Section 11.04.070.010 shall be required for use of any newspaper box;

2. A permittee may install a coin mechanism in the permitted newspaper box; however any such coin mechanism shall be acquired, owned, installed and maintained solely by the permittee and not by the city. Any damages to the city's newspaper rack or newspaper box resulting from the installation or removal of the coin mechanism shall be the sole responsibility of the applicant, who shall be liable to the city for the cost of necessary repairs to or replacement of the damaged city property. The permit application shall provide that the applicant releases the city from any and all liability for damage to, tampering with, or theft of the coin mechanism by any person;

3. Upon issuance of a newspaper rack encroachment permit, the city shall provide a decal identifying the periodical occupying the newspaper box, which shall be affixed to the bottom one-third of the front of the newspaper box. No logos or similar information identifying the periodical shall be allowed on the sides or the back of the newspaper racks or newspaper boxes;

4. The city shall be responsible for exterior graffiti removal, exterior maintenance, and exterior cleaning of newspaper racks and newspaper boxes. The permittee of each specific newspaper box shall maintain any coin mechanism portion of that box;

5. An annual per-box maintenance fee to be established by resolution of the city council shall be payable upon issuance or renewal of any permit for use of a newspaper box, in addition to any application fee payable pursuant to Section 11.04.070.010.

B. Annual availability. The director of public works shall conduct an annual review of availability of newspaper boxes within the zone, and he or she shall provide written notification of such availability to current permittees as well as any publishers that have requested notification. The notice shall describe the location of available spaces and offer priority application to current permittees. Current permittees shall be given thirty (30) calendar days to submit applications, at which point additional applications shall be considered on a first-come, first-served basis.

C. Additional newspaper rack zones. The city council may from time to time by resolution establish other newspaper rack zones within the city and establish specific requirements or standards applicable to those zones.

D. Notice of creation of newspaper rack zone. When a newspaper rack zone is established, the director shall provide written notification of the creation of the zone to publishers who currently maintain newspaper racks within the proposed newspaper rack zone, as well as any publishers that have requested notification. The notice shall include any requirement to remove existing newspaper racks, and shall offer existing publishers priority in applying for permits pursuant to Section 11.04.070.010 for newspaper boxes within the new zone. Existing publishers shall be given thirty (30) calendar days to submit such applications, after which time additional applications will be considered on a first-come, first-served basis.

(Ord. No. 1915, div. 4, 12-2-2013)

All newspaper rack encroachment permittees shall use and maintain their newspaper rack and/or newspaper box(es) in compliance with the following requirements:

A. Limited Logos and Advertising. Newspaper racks and newspaper boxes shall carry no advertising or public notices, other than a logo or similar information identifying the publication.

B. Contact Information and Permit Number. Upon issuance of the newspaper rack encroachment permit, the city shall provide a sticker that includes the address and telephone number for contacting the permittee regarding customer complaints, as well as the permit number issued by the city. The sticker shall be displayed on the front of the newspaper box or newspaper rack at all times, and maintained in such a manner as to be readily visible and readable to a prospective customer.

C. Maintenance. The permittee shall keep any coin mechanism in good repair and working order. The permittee shall make sure the logo described in Section 11.04.070.030(A) above is not peeling or cracked. The permittee shall keep the interior of the newspaper box clean and free of all items other than the permittee's periodical. For areas not within the downtown newspaper rack zone, the permittee shall keep the exterior of all newspaper racks and newspaper boxes clean and free from graffiti, stickers, dirt, rust, damage, and disrepair.

D. Abandonment. Newspaper boxes that remain empty for ten (10) calendar days longer than the regular publishing interval, except for a newspaper rack remaining empty due to a labor strike or any other temporary and extraordinary interruption of distribution, will be considered abandoned and subject to removal as outlined in section 11.04.070.040.

(Ord. No. 1915, div. 4, 12-2-2013)

Any violation of this chapter shall be deemed to be a public nuisance, and may be enforced either as an infraction or as a misdemeanor, by an administrative citation pursuant to Chapter 1.44 of this Code or by any other remedy available to the city under this Code, or under state law. In addition, the city shall have the following remedies:

A. Removal. At the direction of the director, a newspaper box or newspaper rack deemed to be in violation of this chapter or abandoned may be removed by a designated employee of the city in accordance with this section.

1. Notice. Not less than thirty (30) calendar days prior to removal of the newspaper box or newspaper rack, the director shall give notice of the intended removal. The notice shall contain the following information: the date of intended removal; the basis for removal; information as to corrective action if any; the right to and procedure for requesting an appeal hearing to contest the removal; and information regarding retrieval of the removed property from the department of public works. Notice to a permittee shall be given by posting such notice on the subject newspaper box or newspaper rack and mailing it to the publisher at the address stated on the permit. In the case of a newspaper rack or newspaper box for which no permit has been issued and/or that is deemed to be abandoned pursuant to this chapter, such notice shall be posted on the subject newspaper rack or newspaper box, and additionally shall be mailed to the publisher using that newspaper rack or newspaper box if the publisher's identity and contact information is readily ascertainable by the director from information displayed on such rack or box. The failure of a newspaper rack or newspaper box owner actually to receive notice provided pursuant to this section shall not preclude or invalidate the director's removal of the subject newspaper rack or newspaper box.

2. Hearing. The permittee, or a person claiming an interest in an abandoned newspaper rack or newspaper box, may appeal the removal of a newspaper rack or newspaper box by filing a written request for hearing with the city manager prior to the noticed date of intended removal. The request shall provide contact information for the appellant and shall state with particularity the basis for objections to the intended removal. The city manager shall schedule a hearing upon not less than ten (10) calendar days' notice to the appellant. At the hearing, the appellant shall have the opportunity to present oral and written evidence and arguments why the newspaper box or newspaper rack should not be removed. Removal of the newspaper rack or newspaper box by the director shall be stayed pending final decision of the city manager, which shall be issued in writing within ten (10) calendar days after the conclusion of the hearing. The decision of the city manager shall be final.

3. Procedures. On or after the date noticed for removal of a newspaper rack or newspaper box, if the permittee or publisher to whom a notice was sent has neither requested a hearing nor remedied the violation, or if, following an appeal hearing, the city manager has issued a final decision for removal, the director may proceed to remove the newspaper box or newspaper rack. Removed newspaper boxes or newspaper racks shall be impounded by the department of public works for a period of thirty (30) calendar days and may be retrieved by their owners during that time, subject to payment of any impound fees which may be established by resolution of the city council. Any newspaper racks or newspaper boxes not claimed during the impound period shall be conclusively deemed to be permanently abandoned, and the city may dispose of them in its discretion.

4. Emergency removal. Notwithstanding the foregoing, whenever the director determines that a newspaper rack or newspaper box poses an immediate threat or danger to the public safety, including pedestrians and vehicles, the director may cause such newspaper rack or newspaper box to be removed immediately without following the procedures for removal set forth in this subsection (A). In the case of such emergency removal, if permittee or publisher identification is clearly ascertainable from the permit or the face of the newspaper box or newspaper rack, written notice of the removal and an opportunity for a hearing by the director to contest the removal shall be provided within ten (10) calendar days following the removal.

B. Suspension or revocation of permit.

1. Grounds. Any newspaper rack encroachment permit may be suspended or revoked by the director where he or she finds that:

a. The permittee has violated any provision of this chapter or any condition of the permit;

b. The permittee has failed to pay any required fees, or to post or maintain any bond or insurance required by this chapter;

c. The encroachment for which the permit was granted adversely affects the safety, capacity, or integrity of the city's right-of-way or increases the city's liability exposure;

d. The encroachment is causing the city to incur substantial additional maintenance costs; or

e. Material misrepresentations, omissions, or inaccuracies were made in the application for the permit.

2. Notice of Hearing. The director shall give the permittee at least ten (10) calendar days written notice of a hearing on the suspension or revocation of a permit used pursuant to this chapter, setting forth the grounds for such action. The hearing shall be held within thirty (30) days after service of written notice of the hearing or at such later time as may be agreed to by the permittee. The decision of the director may be appealed to the city manager under the procedures provided in subsection (A)(2) of this section. The decision of the city manager on an appeal shall be final.

C. Remedies Cumulative. All remedies available to the city under this code shall be alternative to or in addition to or in conjunction with, and not exclusive of, one another. The election of remedies shall be at the sole discretion of the city.

(Ord. No. 1915, div. 4, 12-2-2013)