MEETING(S) - (Meetings are virtual)
AMENDED REGULAR RICHMOND CITY COUNCIL AGENDA
Tuesday, June 28, 2022, 4:30 p.m.
Community Services Building
440 Civic Center Plaza
Richmond, CA 94804
Members:
Thomas K. Butt, Mayor
Demnlus Johnson III, Councilmember at Large
NathanielBates, Councilmember at Large
Claudia Jimenez, Councilmember District 6
Eduardo Martinez, Vice Mayor at Large
Melvin Willis, Councilmember District 1
Gayle McLaughlin, Councilmember District 5
Link to City Council Agendas/Packets
http://www.ci.richmond.ca.us/4157/City-ofRichmond-Council-Meetings
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CORONAVIRUS DISEASE (COVID-19) ADVISORY
PURSUANT to the Governor of the State of California’s Assembly Bill 361 and in the interest of the public health and safety, attendance at the City of Richmond City Council meeting will be limited to Council members, essential City of Richmond staff, and members of the news media. Public comment will be confined to items appearing on the agenda and will be limited to the methods provided below.
How to watch the meeting from home:
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Livestream online at http://www.ci.richmond.ca.us/3178/KCRT-Live2.
Public comment may be submitted by mail, eComment, email and/or Zoom video conference in the manner that follows, provided that no member of the public may submit more than one verbal comment per agenda item.
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Properly labeled public comments will be considered a public record, put into the official meeting record, available after the meeting as supplemental materials, and will be posted as an attachment to the meeting minutes when the minutes are posted: http://www.ci.richmond.ca.us/Archive.aspx?AMID=31.
Procedures for Removing Items from the Consent Calendar: Members of the public who request to remove an item from the consent calendar must first discuss the item with a staff member by phone or a back-and- forth email discussion, and state the name of the staff member when requesting removal of the item from the consent calendar (by 2 p.m. the day of the meeting).
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The Clerk’s Office must be informed of any requests to remove items from the Consent Calendar. Items removed from the Consent Calendar shall be placed at the end of the agenda for consideration.
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Requests made by mail to City Clerk’s Office, City Council meeting, 450 Civic Center Plaza, Richmond, CA 94804 must be received at least two days before the meeting. Requests will be granted whenever possible and resolved in favor of accessibility.
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Disclaimer: The City Clerk's Office translates agendas to enhance public access. Translated agendas are provided as a courtesy and do not constitute legal notice of the meeting or items to be discussed. In case of discrepancy, the English agenda will prevail.
Pages
A. OPEN SESSION TO HEAR PUBLIC COMMENT BEFORE CLOSED SESSION 4:30 p.m.
B. ROLL CALL
C. CLOSED SESSION
.
C.1. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION (paragraph (1) of Subdivision [d] of Government Code Section 54956.9) Winehaven Legacy LLC v. City of Richmond, et al.•
The Guidiville Rancheria of California et al. v. USA et al.• City of Long Beach v. Monsanto Co.•
C.2. CONFERENCE WITH LEGAL COUNSEL - ANTICPATED LITIGATION (initiation of litigation pursuant to paragraph (4) of Subdivision (d) of Government Code Section 54956.9)
Riggers Loft Wine Company•
C.3. CONFERENCE WITH LABOR NEGOTIATORS (Government Code Section 54957.6)
Agency Representatives: Jaclyn Gross, Teresa Fairbanks, and Anil Comelo
•
Employee organizations:
SEIU Local 1021 Full Time Unit and Part Time Unit1.
IFPTE Local 21 Mid-Level Management Unit and Executive
Management Units
2. Richmond Police Officers Association RPOA3.
Richmond Police Management Association RPMA4.
IAFF Local 1885.
Richmond Fire Management Association RFMA6.
C.4. CONFERENCE WITH REAL PROPERTY NEGOTIATOR (Government Code Section 54956.8)
Property: 1324 Canal Boulevard (General Warehouse, Port of Richmond)
Agency negotiator: Lizeht Zepeda
Negotiating parties: Richmond Grown
Under negotiation: Price and terms of payment
•
D. PUBLIC COMMENT BEFORE CLOSED SESSION
E. ADJOURN TO CLOSED SESSION
________________________________________________________
F. AMENDED REGULAR MEETING OF THE RICHMOND CITY COUNCIL AGENDA 6:30 p.m.
G. ROLL CALL
H. PUBLIC COMMENT INSTRUCTIONAL VIDEO
I. STATEMENT OF CONFLICT OF INTEREST
J. AGENDA REVIEW
K. REPORT FROM THE CITY ATTORNEY OF FINAL DECISIONS MADE DURING
CLOSED SESSION
L. REPORT FROM THE CITY MANAGER (public comment allowed under Open Forum) M. CRIME REPORT FROM POLICE CHIEF - 4th Tuesday (public comment allowed under Open Forum)
N. OPEN FORUM FOR PUBLIC COMMENT
O. CITY COUNCIL CONSENT CALENDAR
O.1. City Attorney's Office
O.1.a. Approval of Fourth Amendment to Liebert Cassidy Whitmore Legal Services Agreement
12 APPROVE the Fourth Amendment to the legal services agreement with Liebert Cassidy Whitmore for the continuation of labor negotiations and other legal services, in the amount of $50,000, for a new total contract amount not to exceed $1,085,000, and extending the term six months through December 31, 2022 – City Attorney’s Office (Jaclyn Gross 510-620-6709)
O.1.b. Approval of two Legal Services Agreement amendments with the law firms of (1) Holland & Knight and (2) Maloney Employment Law for a total amount of $200,000
69 APPROVE amendments to two legal service agreements with the law firms of (1) Holland & Knight and (2) Maloney Employment Law, for a total amount of $200,000, for a term from June 28, 2022 to June 30, 2023– City Attorney’s Office (Dave Aleshire 510-620-6509).
O.1.c. Ordinance to Revise and Amend Richmond Municipal Code Chapter
12.30 123
ADOPT an ordinance (second reading) amending Richmond
Municipal Code Chapter 12.30 (“Video Service Provider, Utility and Special District Encroachments”) by incorporating Chapter 12.29 (“Street Opening and Pavement Restoration Regulations”); adding provisions that address private landowner encroachments into the public Right-of-Way (ROW); easements; and street vacations; retitling Chapter 12.30 “Encroachments and Easements,” and rescinding Chapter 12.29 in its entirety - City Attorney’s Office/Public Works Department (Dave Aleshire 510-620-6509/Joe Leach 510- 620-3008).
O.2. City Clerk's Office
O.2.a. City Council Minutes 291
APPROVE the minutes of the June 14, 2022, Richmond City Council Special Closed Session - City Clerk's Office (Pamela Christian 510- 620-6513).
O.3. Community Development
O.3.a. Surplus Land Act Resolution for OBAG funding 292 ADOPT a resolution to affirm compliance with the Surplus Land Act (as amended by Assembly Bill 2135) to satisfy requirements of the Metropolitan Transportation Commission (MTC) for its One Bay Area Grant (OBAG) program – Community Development Department (Lina Velasco 510-620-6841).
O.4. Human Resources
O.4.a. Proposed 6-Month Extension Contract with Acclamation Insurance Management Services, Inc. to Continue Serving as the City's Third- Party Administrator of Workers' Compensation Claims.
383
APPROVE a third contract amendment with Acclamation Insurance Management Services, Inc. to continue serving as the City's third- party administrator of workers' compensation claims, for a total payment limit not to exceed $314,386, and extending the term six- months through December 31, 2022 – Human Resources
Department (Laura Marquez 510-620-6974).
O.4.b. Contract Amendment with George Hills Company, Inc. to Continue to Provide Third-Party Administration (TPA) of General Liability Claims Received by the City
518
APPROVE a six-month contract amendment with George Hills Company, increasing the amount of the contract by $88,560, for a total amount not to exceed $598,560 to continue to provide third party administration of general liability claims received by the City, with an extended term ending December 31, 2022 - Human Resources Department (Laura Marquez 510-620-6974).
O.5. Mayor's Office
O.5.a. Appointment(s) to the Economic Development Commission 593 APPROVE appointment(s) to the Economic Development
Commission: APPOINT Daniel Heiss, new appointment, seat #2, filing an unexpired term with an expiration date of March 30, 2024; Andrea Portillo- Knowles, re-appointment, seat #15, term expiration date of March 30, 2025 – Mayor’s Office (Mayor Tom Butt 510-620- 6503).
O.5.b. Appointment(s) to the Human Rights and Human Relations Commission
597
APPROVE appointment(s) to the Human Rights and Human
Relations Commission; APPOINT Reza Yazdi, re-appointment, seat #4, term expiration date March 30, 2025; Rabia Watson, new appointment, seat #5, filing an unexpired term with an expiration date of March 30, 2025 – Mayor’s Office (Mayor Tom Butt 510-620-6503).
O.5.c. Appointment(s) to the Commission on Aging 601
APPROVE appointment(s) to the Commission on Aging: APPOINT Michelle Hayes, re-appointment, seat #13, term expiration date May 19, 2026 – Mayor’s Office (Mayor Tom Butt 510-620-6503).
O.5.d. Appointment(s) to the Recreation and Parks Commission 604 APPROVE appointment(s) to the Recreation and Parks Commission:
APPOINT Eleanor Thompson, re-appointment, seat #5, term expiration date October 26, 2024 – Mayor’s Office (Mayor Tom Butt 510-620-6503).
O.5.e. Vacant Seats on Richmond Boards, Commissions and Committees 606 ANNOUNCE recent resignation from City of Richmond boards, commissions, and committees; and ANNOUNCE vacancies as of, June 21, 2022, and ask that interested individuals send applications to the City Clerk – Mayor’s Office (Tom Butt 510-620-6503).
O.6. Police Department
O.6.a. Proposed Agreement for the Provision of Communication Services by the City of Richmond to the City of El Cerrito.
610
ADOPT a resolution authorizing the city manager to execute an agreement for the provision of communication services by the City of Richmond to the City of El Cerrito from July 1, 2022, to June 30, 2027, with revenue to the City of Richmond as follows: $812,461 in Fiscal Year (FY) 2022-2023, $828,710 in FY 2023-2024, $845,285 in FY 2024-2025, $862,190 in FY 2025-2026, and $879,434 in FY 2026-2027 – Police Department (Acting Chief Louie Tirona 621- 1802).
O.7. Public Works
O.7.a. Request to Temporarily Display a Plaque at Shimada Friendship Park 622 APPROVE a request to temporarily display a plaque at Shimada Friendship Park until it can be permanently installed at its formal location at Miraflores Sustainable Greenbelt – Public Works Department (Joe Leach 620-5478/Greg Hardesty 620-6920).
P. ITEMS CONTINUED FROM PREVIOUS MEETINGS
P.1. The Contra Costa County is Increasing the Per Capita Cost for Animal Services in the County Cities
662
RECEIVE a presentation from the Contra Costa County Animal Control Department on the proposed new agreement and increase in fees for service – Councilmember Bates (510-620-6743). This item was continued from the May 24, 2022, meeting.
P.2. Expand The Terms of Appropriated ARPA Flex Funds for Rydin Road Residents
664
AMEND direction provided by City Council on December 21, 2021, which appropriated $50,000 for flex funds for vehicle repair and servicing, to expand the terms under which these funds can be spent, to be overseen by the Community Development Department - Vice Mayor Eduardo Martinez (510- 620-6593). This item was continued from the June 7, 2022, and June 21, 2022, meetings.
P.3. FY 2022-2023 Richmond Department and Fund for Children and Youth Grant Awardee Recommendation
667
APPROVE a recommendation from the Richmond Fund for Children and Youth (RFCY) Oversight Board for Fiscal Year 2022-2023 to award 19 grants in an amount not to exceed $1,434,317; ADOPT a resolution; and AUTHORIZE the city manager to negotiate and execute Grant Service Agreements with the approved grantees – Richmond Department of Children & Youth (LaShonda White/Patrick Seals 620-6512). This item was continued from the June 21, 2022, meeting.
P.4. Contract With Ed Fund to Provide Youth Programs to Camp Achieve Youth In Partnership With Community Services-Recreation
759
APPROVE a contract with West Contra Costa Public Education Fund to provide free youth programs in partnership with Community Services-Recreation to 6th, 7th, and 8th graders through Camp Achieve’s 8-week summer camp program.
The term of the contract is July 1, 2021 through June 30, 2025, in an amount not to exceed $54,000 - Community Services Department -Recreation Division (LaShonda White/Ranjana Maharaj/Troy Porter 510-620-6822). This item was continued from the June 21, 2022, meeting.
Q. STUDY AND ACTION SESSION
Q.1. East Bay Center for Performing Arts Update 2020-2022 Presentation 941 RECEIVE a presentation from East Bay Center for Performing Arts related to their program growth and meaningful contributions to residents and the City of Richmond – Economic Development, Arts & Culture (Shasa Curl/Winifred Day 620-6512).
Q.2. Update from HR&A Advisors, Inc. regarding the American Rescue Plan Act Community Needs Assessment and Strategic Investment Plan Development. 957
RECEIVE an update from HR&A Advisors, Inc. and Contigo on the status of the American Rescue Plan Act (ARPA) Community Needs Assessment and Strategic Investment Plan to provide guidance on spending the City’s remaining $17.2 million ARPA allocation – Library and Community Services (LaShonda White 510-620-6512).
Q.3. RECEIVE Presentation of San Pablo Avenue Multimodal Corridor Study Phase 2 985
RECEIVE a presentation of the San Pablo Avenue Multimodal Corridor Study Phase 2 and provide feedback – Public Works (Joe Leach/Patrick Phelan 307- 8111).
Q.4. Richmond Community Foundation has Established an Equity for Black Women & Girls Initiative.
1031
RECEIVE a report from the Richmond Community Foundation (RCF) on the Equity for Black Women and Girls Initiative - Councilmember Demnlus Johnson (510-620-6861).
R. REPORTS OF OFFICERS: REFERRALS TO STAFF, AND GENERAL REPORTS (INCLUDING AB 1234 REPORTS)
S. ADJOURNMENT
________________________
June 28, 2022
City Attorney's Office
DATE: June 28, 2022
TO: Mayor Butt and Members of the City Council
FROM:
Sharrone Taylor, Acting Director of Human Resources
Jaclyn Gross, Deputy City Attorney
Subject:
Approval of Fourth Amendment to Liebert Cassidy
Whitmore Legal Services Agreement
FINANCIAL IMPACT: The total expenditure for the legal services amendment is not to exceed $50,000, for a total contract payment limit not to exceed $925,000. $50,000 is proposed for the FY
2022-2023 budget (Human Resources Legal Services
General Fund 01181016-400206).
PREVIOUS COUNCIL
ACTION:
City Council approved the First, Second, and Third
Amendments on June 18, 2019, June 30, 2020, and
December 15, 2020, respectively. The original agreement was approved October 1, 2018.
STATEMENT OF THE
ISSUE:
City Council approval is required to extend the terms and contract limit for the Liebert Cassidy Whitmore legal
services agreement.
RECOMMENDED ACTION: APPROVE the Fourth Amendment to the legal services agreement with Liebert Cassidy Whitmore for the
continuation of labor negotiations and other legal
services, in the amount of $50,000, for a new total
contract amount not to exceed $1,085,000, and
extending the term six months through December 31,
2022 – City Attorney’s Office (Jaclyn Gross 510-620-
6709).
AGENDA
REPORT
June 28, 2022
DISCUSSION:
The City entered into an initial legal services agreement with Liebert Cassidy Whitmore in the amount of $10,000 to provide government-mandated training seminars for a contract term of October 1, 2018, to December 31, 2019. On June 18, 2019, the agreement was amended to (1) add funds ($50,000) for a total contract payment limit of $60,000, (2) extend the term of the agreement through June 30, 2020, and (3) change the service agreement to include legal advice and labor negotiation services. City Council approved a Second Amendment on June 30, 2020, adding more funds ($115,000), bringing the contract payment limit to $175,000, and extending the term through June 30, 2022. City Council approved a Third Amendment on December 15, 2020, to add $700,000, for a total contract payment limit of $875,000. This Fourth Amendment extends the term through December 31, 2022, and increases the contract amount by $50,000, for a total contract payment limit of $925,000.
The existing legal services agreement with Liebert Cassidy Whitmore must be amended to extend the term and add funds to the contract as the current Legal Services Agreement expires on June 30, 2022. Liebert Cassidy Whitmore is on the City Attorney’s Office’s approved Request for Qualifications (RFQ) 2018 and 2021 lists. In addition, the firm has the experience and expertise necessary to continue providing legal support in labor negotiations and general labor and employment legal advice.
Given the turnover in the negotiating team and the firm's history with the City, its experience and expertise are necessary to provide continuing representation for the City of Richmond during the current labor negotiations. Moreover, the firm provides legal advice to the Fire and Police Departments and training for the City's Management Leadership Academy. The Fourth Amendment to the contract will allow Liebert Cassidy Whitmore to continue providing these services.
In keeping with improving transparency for legal services, management of this agreement will move to the City Attorney’s Office with secondary management provided by the Human Resources Department.
Liebert Cassidy Whitmore is a law firm with several offices throughout California that exclusively provides legal services to public sector agencies. In addition, Liebert Cassidy Whitmore has a consortium that offers management training at a reduced cost to the City. The services provided by Liebert Cassidy Whitmore have been highly beneficial to the City and performed very satisfactorily. Further, continuing the working relationship with Liebert Cassidy Whitmore will help stabilize the labor negotiations process.
DOCUMENTS ATTACHED:
Attachment 1 – Liebert Cassidy Whitmore Legal Services Agreement (“LSA”) Attachment 2 – Liebert Cassidy Whitmore First LSA Amendment Attachment 3 – Liebert Cassidy Whitmore Second LSA Amendment Attachment 4 – Liebert Cassidy Whitmore Third LSA Amendment Attachment 5 – Liebert Cassidy Whitmore Fourth LSA Amendment
Fourth Amendment to Agreement for Legal Services A-1
FOURTH AMENDMENT TO AGREEMENT FOR LEGAL SERVICES
BETWEEN
THE CITY OF RICHMOND
AND
LIEBERT CASSIDY WHITMORE
This Fourth Amendment to the Agreement for Legal Services between the City of Richmond (“City”) and Liebert Cassidy Whitmore (“Special Counsel”) (the "Fourth Amendment") is entered into as of June __, 2022, by and between the City and Special Counsel with reference to the following facts:
RECITALS
WHEREAS, the City and Special Counsel entered into that certain Legal Services Agreement (“Original Agreement”) for representation of the City and City-related entities; and
WHEREAS, the City now desires for Special Counsel to continue its representation of the City and to increase the payment limit by Fifty Thousand ($50,000) and to extend the term expiration through December 31, 2022; and
WHEREAS, the City and Special Counsel desire to amend the Original Agreement pursuant to this Fourth Amendment.
NOW, THEREFORE, in consideration of the recitals hereof, and other mutual covenants and prom ises contained herein and for o ther va luable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and Special Counsel agree as follows:
1. Amendment 1. Section 3 of the Agreement, TERM OF AGREEMENT, is amended to read as follows:
3. TERM OF AGREEMENT.
The services of Special Counsel are to commence upon the Effective Date of this Agreement and shall terminate on December 31, 2022 unless the parties extend the Agreement in writing. The services shall be undertaken and completed in such sequence as to assure their completion as expeditiously as is consistent with professional skill and care.
2. Amendment 2. Exhibit “A” of the Original Agreement, “Scope of Work and Schedule of Fees & Charges,” is hereby amended to read as shown in Attachment 1 to this Fourth Amendment.
Fourth Amendment to Agreement for Legal Services A-2
3. Amendment 3. To avoid confusion with Exhibit B of the Original Agreement, “Billing Protocols/Guidelines,” the “EXHIBIT B - Special Conditions” attachment to the Second and Third Amendments to the Original Agreement is hereby amended to read as shown in Attachment 2 to this Fourth Amendment.
2. Effect of Fourth Amendment. Except as provided in this Fourth Amendment, all other terms of the Original Agreement and the First, Second, and Third Amendments shall remain in full force and effect.
3. Counterparts. This Fourth Amendment may be executed in counterparts each of which shall be an original and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the City and Special Counsel have caused this Fourth Amendment to be executed as of the last date written below.
CITY OF RICHMOND Liebert Cassidy Whitmore
________________________ By __________________________ City Manager
Title_________________________
Date: ____________________ Date:_________________________
Attest:
By: _____________________
City Clerk
Approved as to form:
By: _______________________________________
Interim City Attorney
Fourth Amendment to Agreement for Legal Services A-3
ATTACHMENT 1
Exhibit “A”
SCOPE OF WORK AND SCHEDULE OF FEES & CHARGES
Scope of work:
Special Counsel shall serve as City's chief labor negotiator in negotiations with the City's represented employee bargaining units and shall provide employment and labor legal advice to the City.
provide legal advice to the City on an as-needed basis regarding human resources issues, including COVID-19 related guidance; provide trainings as part of the City’s Leadership Academy through the Liebert Cassidy Whitmore consortium
City of Richmond Contact Attorney: Shannon Moore, Senior Assistant City Attorney
Schedule of Fees and Charges:
Hourly Rates
Partners $380/hour
Associates $210-$305/hour
Paraprofessional $80-$175/hour
Litigation Support $80-$175/hour
Compensation:
Only those costs and expenses set forth in Section III of Exhibit B of the Original Agreement entitled "Reimbursements" shall be paid to Special Counsel.
Total compensation for legal services and reimbursements shall be charged in accordance with Exhibits "A” and “B” and shall not exceed the total sum of Nine Hundred and Twenty Five Dollars ($925,000) for attorneys' fees and costs.
Fourth Amendment to Agreement for Legal Services A-4
For the Contract between the
City of Richmond and LIEBERT
CASSIDY WHITMORE
EXHIBIT 1
SPECIAL CONDITIONS
The General Conditions are hereby amended to include the following modifications and/or provisions (if applicable):
In addition to the General Conditions set forth herein, Contractor shall comply with the terms and conditions set forth in the FEMA Contract Provisions which are attached hereto and incorporated herein by this reference. If there are any conflicts between the terms and conditions set forth in the General Conditions and the terms and conditions set forth in the FEMA Contract Provisions, the terms and conditions set forth in the FEMA Contract Provisions shall take precedence and shall prevail.
1. REMEDIES
The parties agree that, in event that either party breaches any obligation under this Agreement, or in the event any representation made by either party hereunder is untrue in any material respect, the other party shall have the right to take any action at law or in equity it may have to enforce the payment of any damages or to secure the performance of any obligation hereunder, and that such right to recover damages or to secure the performance of such obligations as provided herein shall ordinarily constitute an adequate remedy for any breach of such obligation or any material untruth in any such representation.
2. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
(a) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.
(b) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (a) of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the
Fourth Amendment to Agreement for Legal Services A-5
District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (a) of this section, in the sum of $27 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (a) of this section.
(c) Withholding for unpaid wages and liquidated damages. The City of Richmond shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally- assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (b) of this section.
(d) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (a) through (d) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (a) through (d) of this section.
3. CLEAN AIR ACT
(a) The contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401et seq.
(b) The contractor agrees to report each violation to the City of Richmond and understands and agrees that the City of Richmond will, in turn, report each violation as required to assure notification to the Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office.
(c) The contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FEMA.
Fourth Amendment to Agreement for Legal Services A-6
4. FEDERAL WATER POLLUTION CONTROL ACT
(a) The contractor agrees to comply with all applicable standards, orders, or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251et seq.
(b) The contractor agrees to report each violation to the City of Richmond and understands and agrees that the City of Richmond will, in turn, report each violation as required to assure notification to the Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office.
(c) The contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FEMA.
5. DEBARMENT AND SUSPENSION
(a) This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and
2 C.F.R. pt. 3000. As such, the contractor is required to verify that none of the contractor's principals (defined at 2 C.F.R. § 180.995) or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935).
(b) The contractor must comply with 2 C.F.R. pt. 180, subpart C and2 C.F.R. pt. 3000, subpart C, and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into.
(c) This certification is a material representation of fact relied upon by the City of Richmond. If it is later determined that the contractor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the City of Richmond, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The City will insure the Contractor and any lower participants are not debarred by checking the government’s System Award Management (SAM).
(d) The bidder or proposer agrees to comply with the requirements of 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions.
6. BYRD ANTI-LOBBYING AMENDMENT
Fourth Amendment to Agreement for Legal Services A-7
Contractors who apply or bid for an award of $100,000 or more shall file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, officer or employee of Congress, or an employee of a Member of Congress in connection with obtaining any Federal contract, grant, or any other award covered by 31U.S.C. § 1352. Each tier shall also disclose any lobbying with non- Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency.
Required Certification. If applicable, contractors must sign and submit to the non-federal entity the following certification.
APPENDIX A, 44 C.F.R. PART 18- CERTIFICATION REGARDING
LOBBYING
Certification for Contracts, Grants, Loans, and Cooperative Agreements
The undersigned certifies, to the best of his or her knowledge and belief, that:
1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form- LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
3. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and
Fourth Amendment to Agreement for Legal Services A-8
cooperative agreements) and that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
The Contractor, LIEBERT, CASSIDY, WHITMORE, LLC, certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31U.S.C. Chap. 38, Administrative Remedies for False Claims and Statements, apply to this certification and disclosure, if any.
_________________________________________
Signature of Contractor's Authorized Official
_________________________________________
Name and Title of Contractor's Authorized Official
_________________________________________
Date
7. PROCUREMENT OF RECOVERED MATERIALS
In the performance of this contract, the Contractor shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired
(a) Competitively within a timeframe providing for compliance with the contract performance schedule;
(b) Meeting contract performance requirements; or
(c) At a reasonable price.
Information about this requirement, along with the list of EPA- designated items, is available at EPA's Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/consolidated-recovered-materials- advisory-notices-rmans-comprehensive-procurement-guidelines-cpg
The Contractor also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.
Fourth Amendment to Agreement for Legal Services A-9
8. ACCESS TO RECORDS
(a) The Contractor agrees to provide the City of Richmond, Cal OES, the FEMA Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts, and transcriptions.
(b) The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed.
(c) The Contractor agrees to provide the FEMA Administrator or his authorized representatives access to construction or other work sites pertaining to the work being completed under the contract.
(d) In compliance with the Disaster Recovery Act of 2018, the City of Richmond and the Contractor acknowledge and agree that no language in this contract is intended to prohibit audits or internal reviews by the FEMA Administrator or the Comptroller General of the United States.
9. DHS SEAL, LOGO, AND FLAGS
The contractor shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA pre-approval.
10. COMPLIANCE WITH FEDERAL LAW, REGULATIONS, AND
EXECUTIVE ORDERS
This is an acknowledgement that FEMA financial assistance will be used to fund all or a portion of the contract. The contractor will comply with all applicable Federal law, regulations, executive orders, FEMA policies, procedures, and directives.
11. NO OBLIGATION BY FEDERAL GOVERNMENT
The Federal Government is not a party to this contract and is not subject to any obligations or liabilities to the non-Federal entity, contractor, or any other party pertaining to any matter resulting from the contract.
12. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR
RELATED ACTS
Fourth Amendment to Agreement for Legal Services A-10
The Contractor acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and Statements) applies to the Contractor's actions pertaining to this contract.
June 28, 2022
City Attorney's Office
DATE: June 28, 2022
TO: Mayor Butt and Members of the City Council
FROM:
Dave Aleshire, Interim City Attorney,
Heather Mc Laughlin, Interim Sr. Assistant City Attorney Subject:
Approval of two Legal Services Agreement amendments
with the law firms of (1) Holland & Knight and (2) Maloney Employment Law for a total amount of $200,000
FINANCIAL IMPACT: Total expenditure for the legal services amendments is not to exceed $200,000. A total of $50,000 will be paid from the former Successor Agency budget, $150,000 out
of the Risk Management/ General Liability budget with an account string of 50182316-400554.
PREVIOUS COUNCIL
ACTION:
Legal Services Agreements and amendments have been
approved as noted in the initial agreements and
amendments.
STATEMENT OF THE
ISSUE:
To ensure the City has appropriate legal representation relating to employment litigation cases and to retain
outside counsel to provide remedial action plan and post clean up monitoring for Miraflores, the City Attorney’s Office requests approval of two legal services
amendments in a total not to exceed amount of
$200,000.
RECOMMENDED ACTION:
APPROVE amendments to two legal service
agreements with the law firms of (1) Holland & Knight
and (2) Maloney Employment Law , for a total amount of
$200,000, for a term from June 28, 2022 to June 30,
2023– City Attorney’s Office (Dave Aleshire 510 -620-
6509).
AGENDA
REPORT
June 28, 2022
DISCUSSION:
The City Attorney’s Office is requesting contract amendments for two law firms to continue to provide legal advice and representation in pending employment litigation matters and to advise on a remedial action plan and post clean up monitoring for Miraflores.
The two law firms listed in the chart below are on the City Attorney’s Office’s approved Request for Qualifications (RFQ) 2018 and 2021 lists.
Maloney Employment law has the experience and expertise necessary to continue to represent the City in pending employment cases and matters before the Personnel Board.
Holland & Knight (H&K) assisted in the City in the approval process for the Remedial Action Plan for the Miraflores Housing Development Site back in 2010. In June 2015, the Department of Toxic Substance Control (DTSC) certified the remediation of the 14- acre Miraflores Housing Development site to unrestricted land use standards. Quarterly post-remediation groundwater monitoring has occurred to evaluate the concentrations of residual contamination in groundwater. Also in 2015, the Voluntary Clean up Agreement was amended to identify the Successor Agency as the responsible entity for operations and maintenance reporting to the DTSC. Given Holland & Knight’s previous involvement, the Successor Agency staff is seeking Council approval to continue to work with Holland & Knight related to clean up activities with the DTSC and post- remediation monitoring.
As has been discussed in prior staff reports, the City Attorney’s Office (CAO) is actively working with the Interim City Attorney, City Manager, Finance Director, and Risk Manager to decrease legal expenditures City-wide. At this juncture, an analysis of Legal Service Agreement (LSA) expenditures is in progress. Moving forward, all legal services agreements will be managed by the CAO and will brought to the City Council for approval in a timely manner.
June 28, 2022
LAW FIRM AMOUNT
REQUESTED
TOTAL
CONTRACT
AMOUNT
PENDING
MATTERS
DEPARTMENT
ACCOUNT STRING
Holland &
Knight
$50,000
$60,000 Special
Counsel shall
advise the City
regarding the
remedial action
plan and post
clean up
monitoring for
Miraflores.
This agreement will
be paid out of the
former Successor
Agency budget with
an account string of
61322063 – 400708
– 07F63.
No General Fund
monies will be used
to pay for this
contract
amendment. This
will be reimbursed
by the Developer or
successor agency
funds
Maloney
Employment
Law
$150,000
$360,000
Represent the
City in
employment
litigation cases
and personnel
board hearings
Risk Management/
General Liability
50182316-400554
DOCUMENTS ATTACHED:
Attachment 1 - Holland & Knight – Original Legal Services Agreement Attachment 2 - Holland & Knight – First Amendment (requested for approval) Attachment 3 - Maloney Employment Law – Original Legal Services Agreement Attachment 4 - Maloney Employment Law – First Amendment Attachment 5 – Maloney Employment Law – Second Amendment (requested for approval)
LEGAL SERVICES AGREEMENT
BY AND BETWEEN
THE SUCCESSOR AGENCY TO THE RICHMOND COMMUNITY
REDEVELOPMENT AGENCY
AND
HOLLAND & KNIGHT, LLP
PREAMBLE
This legal services agreement ("Agreement") is made and entered into on this 2ND DAY OF JUNE, 2020 (the "Effective Date") by and between the Successor Agency to the Richmond Community Redevelopment Agency ("Successor Agency"), with its principal place of business located at 450 Civic Center Plaza, Richmond, California 94804 and HOLLAND & KNIGHT, LLP comprised of attorneys licensed to practice law in the State of California ("Special Counsel") with its principal place of business located at 50 CALIFORNIA STREET, SUITE 2800 SAN FRANCISCO, CA 94111. Special Counsel may be referred to herein individually as a "Party" or collectively as the "Parties" or the "Paiiies to this Agreement."
RECITALS
The following recitals are as follows:
A. The Successor Agency desires to secure professional services more fully described in this Agreement; and
B. Special Counsel represents that it has the professional qualifications, expertise, necessary licenses and desire to provide legal services of the quality and type, which meet objectives, and requirements of the Successor Agency.
AGREEMENT PROVISIONS
The Parties agree as follows:
1. RETENTION OF FIRM.
A. The Successor Agency hereby confirms, retains and authorizes Special Counsel to represent the Successor Agency and provide legal services as may be requested, from time to time, orally or in writing, by authorized representatives of the Successor Agency on an as-needed basis. By this Agreement, the Successor Agency is retaining Special Counsel and not individual members of the Special Counsel. Special Counsel's client is the Successor Agency, as a public entity, and not any of its individual members, groups of individuals or any other entity.
B. The Special Counsel shall repoti to and receive direction from the Successor Agency Attorney only and not from any other Depaiiment Head or Successor Agency staff.
C. Special Counsel shall perform such legal services for and on behalf of the Successor Agency under the primary direction of the Successor Agency Attorney. Special Counsel shall unde1iake, subject to approval of the Successor Agency Attorney, additional duties as may be authorized by the Successor Agency from time to time under the terms and conditions of this Agreement.
2. DESCRIPTION OF SERVICES TO BE PROVIDED.
These services may include, but are not limited to, providing advice and counsel on legal matters affecting the Successor Agency, performing legal research, representing the Successor Agency in judicial proceedings in state and/or federal court or other dispute resolution forums or before administrative agencies, negotiating contracts and drafting contracts, correspondence and other legal documents as may become necessary. These services shall also include the preparation and delivery of status repo1is to the Successor Agency as specified in paragraph 11 of this Agreement.
3. TERM OF AGREEMENT.
The services of Special Counsel are to commence upon the Effective Date of this Agreement and shall terminate on JUNE 30 2025, unless the parties extend the Agreement in writing. The services shall be undertaken and completed in such sequence as to assure their completion as expeditiously as is consistent with professional skill and care.
4. ASSIGNMENT OF DUTIES.
It is contemplated that no other attorney will be assigned from Special Counsel other than NICHOLAS TARG It is agreed by and between the Parties that should it be desirable for any attorney other than NICHOLAS TARG to work under this Agreement, such attorney may only be added with the express oral consent of the Successor Agency Attorney.
Should any associate in the Special Counsel be assigned any task under this Agreement that exceeds three (3) billable hours per month, Successor Agency Attorney should approve the assignment of such associate orally.
5. PUBLIC FUNDING.
Special Counsel and the Successor Agency mutually recognize that Special Counsel's services under this Agreement are being paid for with tax dollars from citizens and taxpayers of the Successor Agency, and that, given this fact, a heightened duty of care exists in both Special Counsel and the Successor Agency to ensure that Special Counsel scrupulously adheres to principles of moderation, frugality and cost consciousness in carrying forth the goals of this Agreement. Special Counsel and each of its attorneys pledge themselves to scrupulously observe a duty ofreasonableness and cost effective representation in all aspects of this Agreement.
6. PAYMENT FOR SERVICE.
2
In consideration for Special Counsel's performance of legal services on behalf of the Successor Agency under the terms of this Agreement, and upon review and approval of Special Counsel's bill by the Successor Agency Attorney, Special Counsel shall be compensated at the preapproved hourly rates and for authorized expenses set forth in the "Scope of Work and Schedule of Fees and Charges" set foiih in Exhibit A, attached and incorporated by this reference. Fees for services performed by retained consultants, subcontractors, expe1is or other personnel may be billed to the Successor Agency only if approved in writing by the Successor Agency Attorney. Exhibit A may be amended from time to time by letter agreement duly signed and approved by the Successor Agency Attorney.
7. BILLING INVOICES.
Special Counsel shall, within fifteen (15) days after the end of each month in which services are performed under this Agreement, submit to the Successor Agency an itemized bill describing in detail the specific services performed as set f01ih in this Agreement. Special Counsel shall adhere to the Protocols and Guidelines set foiih in Exhibit B, attached and incorporated by this reference. The bill shall be submitted to:
City Attorney's Office
City of Richmond
450 Civic Center Plaza, Suite 340
Richmond, CA 94804
Attn : Carlos A. Privat, Successor Agency Attorney
8. PROJECT PLAN AND BUDGET AND RESERVES.
Special Counsel shall provide a project plan and budget for any project or case assigned to Special Counsel under this Agreement. Project plans and budgets shall conform to the guidelines set f01ih in Exhibit C (Project Plan and Budget) and Exhibit D (Mandatory Case Reporting Policy), when the case is reportable to the Successor Agency's excess insurance carrier, California Joint Powers Risk Management Authority (CJPRMA). If the case is reportable to CJPRMA, Special Counsel shall provide an initial repo1i notifying them of the claim or lawsuit within 30 days of receipt of the assignment and the estimated exposure. The Successor Agency Attorney and Risk Manager shall be copied on all correspondence sent to CJPRMA.
9. LITIGATION GUIDELINES.
When litigation is included in the scope of work, litigation guidelines as specified in Exhibit E are to be followed.
10. BILLING.
Special Counsel shall scrupulously examine all bills submitted for services rendered under this Agreement to assure that appropriate billing judgment is employed in billing 3
the Successor Agency for service. Special Counsel shall not bill for hours other than those hours expressly devoted to the tasks approved in advance by the Successor Agency Attorney. Special Counsel agrees it will not bill for time, which is not specifically devoted to the task(s). Special Counsel shall not use legal professionals for secretarial work and under no circumstances shall Special Counsel have lawyers billing for making copies, scheduling appointments or taking care of matters or work that would otherwise be work performed by a law clerk, assistant or secretary.
11. STATUS REPORTS.
Special Counsel shall, every thirty (30) days, submit via electronic mail a written update setting forth a summary of activities performed on behalf of the Successor Agency during the preceding month, the current status of each pending matter, results obtained or expected to be obtained, a summary of invoices for the preceding month and other information relating to the services rendered as the Successor Agency may reasonably request. The update should be emailed to the Successor Agency Attorney with a copy to the Risk Manager and CJPRMA, if applicable. Please keep the status reports brief and spend no more than one (1) hour billing for your time. Please also attach any referenced filings to your status report.
12. TERMINATION.
Either Pmiy may terminate this Agreement by providing written notice to the other. Any termination hereunder shall become effective immediately upon receipt of written notice of termination; provided, however, that Special Counsel may exercise its right of termination only to the extent and under terms and conditions consistent with the obligations of Special Counsel under the Rules of Professional Conduct of the State Bar of California; and provided, that in the event of termination, the amount due Special Counsel for services rendered and costs and expenses incurred prior to termination shall remain due and payable. Special Counsel agrees to turn over to any attorney substituted in its place, the entire file and attorney work product regarding any such matter within seven (7) days of any such termination.
13. CONFLICTS OF INTEREST.
A. No member of the governing body of the Successor Agency, and no other officer, employee or agent of the Successor Agency who exercises any discretion, function or responsibility in connection with the carrying out of any project to which this Agreement pertains, shall have any personal interest, direct or indirect, in this Agreement.
B. Special Counsel agrees to secure the infonned written consent of the Successor Agency Attorney before accepting any representation adverse to the Successor Agency (actual or apparent) during the term of this Agreement, and to forego the representation if the Successor Agency Attorney, in his or her sole discretion, objects for any reason. This provision is intended to supercede all applicable rules of 4
professional conduct relating to conflict of interest.
14. ASSIGNMENTS AND SUCCESSORS IN INTEREST.
The Successor Agency and Special Counsel bind themselves, their partners, successors, . assigns, executors and administrators to the terms of this Agreement. Except as otherwise set forth in this Agreement, no interest in this Agreement or any of the work provided for in this Agreement shall be assigned or transferred, either voluntarily or by operation of law, without the prior written approval of the Successor Agency Attorney.
15. AUDITS, RECORDS, AND DOCUMENTATION.
A. The Successor Agency, the City of Richmond, and any other federal, State or local governmental agency, and any of their authorized auditors or representatives, including auditors, shall have access to, and the right to audit and reproduce any of Special Counsel's records to the extent the Successor Agency or such other governmental agency deems necessary to ensure that Successor Agency is paying only the amounts to which Special Counsel is properly entitled or for other purposes relating to the Agreement. Special Counsel shall assist the Successor Agency in responding to any requests from the Successor Agency's auditors, and Special Counsel shall not bill the Successor Agency for any time spent responding to any such audit requests.
B. Special Counsel shall maintain complete and accurate records of the services provided to the Successor Agency and expenses incurred on behalf of the Successor Agency. Special Counsel shall maintain and preserve all such records for at least three (3) years after termination of the Agreement or until an audit has been completed and accepted in writing by the Successor Agency. Upon written notice by the Successor Agency, the Special Counsel shall promptly make all such records available to auditors or other representatives of the Successor Agency or other governmental agencies.
16. NON-DISCRIMINATION.
A. As set forth in Chapter 2.28 of Richmond Municipal Code, no discrimination will be made in the employment of any person under this Agreement because of race, religious creed, sex, sexual orientation, national origin or ancestry. Special Counsel agrees to meet all requirements of the Richmond Municipal Code pertaining to nondiscrimination in employment.
B. If Special Counsel is found in violation of the nondiscrimination provisions of the State of California Fair Employment Practices Act or similar provisions of federal law or executive order in the performance of this Agreement, it will be in default of this Agreement. Thereupon, Successor Agency will have the power to cancel or suspend this Agreement, in whole or in part.
5
17. HOLD HARMLESS/INDEMNIFICATION.
Special Counsel agrees to indemnify, hold harmless, release and defend to the maximum extent permitted by law, and covenants not to sue, the Successor Agency, its Board and each member thereof, the City of Richmond, its City Council and each member thereof, and their respective officers, employees, commission members and representatives, from any and all liability, loss, suits, claims, damages, costs, judgments and expenses (including attorney's fees and costs of litigation) which in whole or in paii result from, or arise out of, any negligent acts, errors or omissions (including, without limitation, professional negligence) of Special Counsel, its employees, representatives, subcontractors, or agents in connection with the performance of this Agreement. This Agreement to indemnify, hold harmless, release and defend includes, but is not limited to, personal injury (including death at any time) and property or other damage (including, but without limitation, contract or t01i or patent, copyright, trade secret or trademark infringement) sustained by any person or persons (including, but not limited to, companies, or corporations, Special Counsel and its employees or agents, and members of the general public).
18. INSURANCE REQUIREMENTS.
Special Counsel shall maintain in full force and effect the following insurance policies:
A. Commercial general liability policy (bodily injury and prope1iy damage); B. Worker's compensation/employer's liability policy;
C. Business automobile liability insurance policy; and, D. Professional liability policy.
Said policies shall be maintained with respect to employees and vehicles assigned to the performance of work under this Agreement with coverage amounts, endorsements, ce1iificates of insurance and coverage verifications as defined in Exhibit F, attached to this Agreement and incorporated by this reference.
19. CONFIDENTIALITY AND DISCLOSURE.
The data, information and rep01is acquired or prepared by Special Counsel in connection with matters upon which the Successor Agency has retained Special Counsel shall not be shown or distributed to any other public or private person or entity except as authorized by the Successor Agency Attorney and in no event prior to having been first disclosed to the Successor Agency Attorney. All information, documents, records, rep01is, data or other materials furnished by the Successor Agency to Special Counsel or other such information, documents, records, data or other materials to which the Special Counsel has access during its performance pursuant to this Agreement are deemed confidential and shall remain the prope1iy of the Successor Agency. Special Counsel shall not make oral or written disclosure of such documents or materials, other than as necessary for its performance under this Agreement, without the prior written approval of the Successor Agency Attorney.
6
20. AMENDMENTS.
This Agreement , including any Exhibits attached to it, represents the entire understanding of the Patties as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. This Agreement may be modified only by a written amendment duly executed by the Parties to this Agreement.
21. ENGAGEMENT OF OTHER COUNSEL, SPECIALISTS, OR EXPERTS.
Special Counsel will not engage or otherwise incur an obligation to pay other counsel, specialists, or experts for services in connection with this Agreement without the prior written approval of the Successor Agency Attorney.
22. NOTICES.
All notices, invoices, repo1ts or other communication to the Parties shall be properly sent via electronic mail to rachel [email protected] and carlos [email protected] and cc to patrick [email protected] and sofia [email protected] .ca.us and to Special Counsel at its principal place of business listed on page one of this Agreement.
Either Party may change its address for receipt of notices under this Agreement by notice given in the manner provided herein.
23. LAW GOVERNING AGREEMENT.
This Agreement shall be interpreted under the laws of the State of California. All claims or controversies arising out of or related to performance under this Agreement shall be submitted to and resolved in a forum within Contra Costa County.
24. INVALID PROVISIONS.
If any provision of this Agreement is held to be illegal, invalid or unenforceable, in full or in part, then such provision shall be modified to the minimum extent necessary to make the provision legal, valid and enforceable, and the other provisions of this Agreement shall not be affected thereby.
25. LICENSE REQUIREMENTS.
Special Counsel shall demonstrate that the attorney(s) who provide legal services to the Successor Agency under this Agreement are licensed to practice law in the State of California and, if not, indicate to the satisfaction of the Successor Agency Attorney why such license is not required to perform the services required. 7
The Paities acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives. It is the intent of the Parties that this Agreement shall become operative on the Effective Date.
HOLLAND & KNIGHT, LLP
By :~ 2-2--=-
Title: Partner
8 SUCCESSOR AGENCY TO THE
RICHMOND COMMUNITY
REDEVELOPM ENT AGENCY
ATTEST :
----
Q~
Successor Agency Clerk
Exhibit A
SCOPE OF WORK AND SCHEDULE OF FEES & CHARGES
Special Counsel shall provide legal services to the Successor Agency for the Miraflores development site as follows:
1) Establish responsibilities of the Successor Agency, property owners, and off-site responsible party to assess site conditions through review of regulatory documents (e.g., Polanco Certification, Operation and Maintenance Plan) and contractual agreements (e.g., property transfer documents)
2) Coordinate response to DTSC letter dated May 29, 2020 on behalf of the Successor Agency, including drafting response letter and calls with DTSC Counsel and leadership
3) Work to establish process for curtailment of Successor Agency environmental obligations
4) Meetings with Successor Agency
Successor Agency Contact Attorney: Carlos A. Privat, Successor Agency Attorney Schedule of Fees & Charges:
Hourly Rates
NICHOLAS TARG $660/hour
COMPENSATION
Only those costs and expenses set forth in Section III of Exhibit "B", entitled "Reimbursements" shall be paid to Special Counsel.
Total compensation for legal services and reimbursements shall be charged in accordance with Exhibits "A" and "B" and shall not exceed the sum of Ten Thousand Dollars ($10,000) for attorneys' fees.
9
Exhibit B
BILLING PROTOCOLS/GUIDELINES
The Successor Agency to the Richmond Community Development Agency ("Successor Agency") has adopted the following protocols for billing, budgeting, and planning for projects involving outside counsel. Special Counsel will be required to comply with this protocol. If you have questions concerning it, please contact the Successor Agency Attorney for clarification. In the event you wish to negotiate changes due to the internal operation of your firm, please raise them in writing as soon as possible. Any changes to this protocol will need prior, written approval from the Successor Agency Attorney. In the interest of fairness, all Special Counsel is required to comply with this protocol. This protocol is also to be used in conjunction with any new proposal for services.
These protocols and guidelines are instituted to ensure that Special Counsel conveys the information necessary for the Successor Agency Attorney to manage outside projects and litigation. Also, because these guidelines are set out in advance, they are designed to minimize any confusion or misunderstanding. Compliance with these guidelines should enhance the attorney-client relationship. If you have any comments or suggestions that could improve this system, please feel free to contact the Successor Agency Attorney.
I. BILLING FORMAT
Unless otherwise agreed, the following information must be provided in monthly bills:
a. A detailed description of work, in time increments of .1 hour (one tenth of an hour) for and by each and every individual billing services. b. Identification of the lawyer who is in charge of the matter. c. Reasonably detailed disbursement breakdowns with backup documentation of any individual charge exceeding $100.00.
d. Each billing item must be separately stated on a separate line identifying the attorney, the time spent and the exact nature of the service rendered. e. When charges are made for research time, the specific issue being researched and the need for the research should be identified.
f. Each item billed should be coded to a specific litigation budget line item, if applicable.
g. The Successor Agency Attorney reserves the right to request various levels of detail and specific formats (such as columnar comparisons with established budgets).
10
Exhibit B
II. BILLING GUIDELINES
a. All tasks set forth in Special Counsel's billing documentation shall be specific and detailed. Overly generalized listings of task descriptions such as "review contract" or "prepare for negotiations" are not acceptable. b. Billings under this Agreement shall not be provided in more than six (6) minute increments and shall represent the devotion of a full six minutes before an increment is billed. Under no circumstances shall Special Counsel use "block billing" procedures, wherein a list or series of activities is done each day with only an aggregate amount of time specified. c. Special Counsel shall keep the Successor Agency advised of the identity and billing rates of those people working on the project account. d. All time shall be billed within 30 days of performance of the service. e. Counsel shall advise the Successor Agency whenever it anticipates the amount of services necessary to properly execute the task will exceed the amount of the contract. When accrued billings are equal to eighty percent (80%) of the Payment Limit, written notice shall be given to the Successor Agency as soon as possible, via e-mail, to the Successor Agency Attorney's Office, of this fact. In order to satisfy this notification requirement, Counsel shall monitor its accrued billings on a weekly basis and immediately notify the Successor Agency Attorney if the eighty percent (80%) threshold is met.
Special Counsel acknowledges the fiscal constraints on Successor Agency funding and therefore Special Counsel assumes risk of non-payment for services rendered in the event the amount of services rendered exceeds the amount of the contract unless prior written authorization is received.
Authorization to exceed the amount set forth in Exhibit A may be given only by Successor Agency Attorney in writing.
f. Only those attorneys approved by the Successor Agency may bill on the case. g. The Successor Agency expects the attorney assigned to the case to handle all significant matters in the litigation. The Successor Agency Attorney must approve in advance the assignment of other attorneys to the litigation or project. The Successor Agency may request that the assigned work be instead handled by the primary attorney.
h. Special Counsel shall not charge for more than one attorney at any hearing, deposition, or meeting of any kind without advance approval of the Successor Agency Attorney.
11
Exhibit B
I. No more than two paraprofessionals may bill on a particular case without the prior approval of the Successor Agency.
j. The Successor Agency has retained Special Counsel for its expertise, and therefore expects not to be billed for introductory or background research.
The Successor Agency appreciates when Special Counsel has researched an issue previously and uses that research on present cases or projects. Do not charge the Successor Agency for work Special Counsel has done and billed another client for in the past.
k. Within thirty (30) days of the Effective Date of this Agreement, Special Counsel shall provide any manuals or policies describing Special Counsel's billing practices.
I. The Successor Agency does not allow "double billing" of any so1i. If Special Counsel is working on another client's matter, do not bill the Successor Agency for that time. This applies to travel time or any other matter. m. Training time is not billable. Law clerks may be used only with prior approval.
n. The Successor Agency will not pay for new attorneys to "get up to speed" on a file unless it has been preapproved.
o. If a matter arises that requires Special Counsel to open a new file, the Successor Agency Attorney should be informed immediately. p. The Successor Agency reserves the right to require additional substantiation of any item of claimed expense.
III. REIMBURSEMENTS
a. The Successor Agency will reimburse Special Counsel for the following expenses, and for no other expenses:
• Actual printing costs;
• Copying costs at $.12 I page (for legal documents and file materials, but not library materials);
• Actual cost of postage (including express mail delivery charges); • Facsimile charges at the rate of $0.25 per page;
• Computer research supp01i services (e.g., Westlaw, LEXIS or computer time or services) at actual cost, but not to exceed 15% of the total fees for all legal services;
• Actual cost of long distance telephone calls;
• Transcription and reporter's fees; and
• Reasonable travel. The Successor Agency does not pay for meals unless Attorney is required to be away from office for one full day. All meals 12
Exhibit B
and/or travel reimbursements will be subject to approval by the Successor Agency Attorney. Travel expenses are limited to the lesser of actual expenses or expenses that would be authorized for Successor Agency employee travel pursuant to Successor Agency policy.
b. The Successor Agency Attorney must approve in advance any single reimbursement item in excess of $250.
c. Any expense other than those listed in section "a." must be approved by the Successor Agency Attorney in writing and in advance in an approved budget. d. No compensation shall be allowed for administrative overhead or premiums added to the direct cost ofresearch supp01i or other services. e. Court filings shall be prepared in a timely manner so that "rush" or "expedited" messenger fees are not incurred.
f. Messenger and other charges in excess of actual costs are not permitted. The Successor Agency does not allow cost, plus a percentage, for actual outside costs
g. The Successor Agency does not pay for secretarial time or secretarial overtime. The Successor Agency does not pay attorneys or paralegals for secretarial tasks or tasks that should not be included in Special Counsel's overhead. For example, faxing, mailing, arranging for messengers and calendaring are not acceptable charges.
h. The Successor Agency does not pay for billing or discussions of biUs, including discussions initiated by the Successor Agency or Successor Agency's requests for additional information about a bill.
I. The practice of minimum billing charges is prohibited. Please charge for actual time spent. For example, a minimum of .2 for phone calls or .4 for letters is unreasonable unless it is an accurate measure of time spent.
J. Do not charge for file opening or file closing. These are not true legal services, tasks or adequate descriptions of legal activities. 13
Exhibit C
PROJECT PLAN AND BUDGET
Project plans and budgets should conform to the following guidelines:
a. The project plan shall include a projection of recommended strategies and actions to be taken in the project and a range of costs for each such strategy or action. b. If the scope of work includes representation of the Successor Agency in litigation, the project plan shall include the following elements, with explanations:
• Anticipated total costs;
• The primary issues;
• The probability of success; and
• A settlement/trial recommendation
The project plan will be modified during the litigation as the need arises. c. The project budget shall include an estimate of the attorneys' hours and fees and disbursements during each phase and/or activity. All anticipated expenses must be listed and costs estimated.
d. In the event oflitigation, the project budget shall include, but not be limited to, estimates for:
• Pre-commencement (legal and factual research for the complaint or answer); • Pleadings;
• Preliminary motions;
• Initial discovery;
• Factual investigation of merits (interviewing clients, employees and third parties);
• Review and abstract Successor Agency's documents;
• Expert (non-medical) investigation and reports;
• Medical experts and examinations;
• Legal research on merits;
• More thorough discovery (including the identity of deponents and expected costs of each deposition and preparation);
• Settlement negotiations;
• Trial preparation; and
• Trial.
e. The project budget should include the anticipated cost of each line item, the time allotted to complete it and the professional level of the person handling it. f. The project budget is not a fixed fee agreement and is subject to revision. g. Special Counsel shall provide revisions to the project plan or budget at the request of the Successor Agency Attorney.
14
Exhibit C
h. Special Counsel understands and agrees that major unjustified deviations from the project budget, or failure to timely submit a project budget or revisions, if requested, may constitute a breach and result in termination of this Agreement. 15
Exhibit D
California Joint Powers Risk Management Authority
Mandatory Case Reporting Policy
Pursuant to Section VII (Conditions) of the Memorandum of Coverage, the following rule is applicable to all cases reported to CJPRMA.
The Authority shall be entitled to complete access to the covered party's claim file, the defense attorney's complete file, and all investigation material and reports, including all evaluations and information on negotiations. The covered paity shall be responsible to repo1t the progress of the litigation and any significant developments at least quarterly to the Authority, and to provide the Authority with simultaneous copies of all correspondence provided to the covered patty by its defense attorneys and/or its agents.
In addition, the CJPRMA Board of Directors has adopted the following mandatory case reporting standards:
1) Defense counsel is expected to provide a written analysis ofliability and exposure in any reported claim no later than ninety days following receipt of the file from the member agency. CJPRMA understands that the liability picture may develop as discovery is ongoing, but this does not excuse the responsibility of providing an early, objective analysis of the file, subject to later developments. An early analysis not only permits the JP A member to set an accurate reserve level, but also permits the member entity to decide whether to actively litigate the case, try to settle the case, or limit discovery based upon the exposure.
2) The initial status report should provide, at a minimum, a brief synopsis of the facts giving rise to the lawsuit; the status of the pleadings, including any discussions of demurrers or motions to dismiss, or cross-complaints; a summary and analysis of plaintiffs injuries, damages and exposures in the case; an initial impression of liability; any requests for additional investigation; a brief outline of the discovery planned; and an evaluation of anticipated litigation costs. The report need not be lengthy, and typically might not exceed three to five pages, but must address the issues directly and in a straightforward manner so that the member entity and CJPRMA can set cost and loss reserves as necessary. 3) Defense counsel is responsible to report, in writing, the setting of a trial date, settlement conference date, hearing date on motion for summary judgment or similar dispositive motion in any litigated case, within one week of the date on which a comt establishes such date.
4) Defense counsel is responsible to report, in writing, all settlement demands or offers within one week of the time the offer is made or the demand is received. 16
Exhibit D
5) Defense counsel is responsible to report, in writing, on the substance of all depositions taken in the case. This need not be a multi-page deposition summary, but must, at a minimum, include a concise report of major events occurring at the deposition, and an evaluation of the effect of the deposition testimony on the case. 6) Finally, no later than sixty days before the date set for trial in any case, defense counsel is responsible to report, in writing, on (1) an assessment of liability in the case, (2) the adverse potential exposure if liability is found, (3) a concise summary of injuries sustained and/or claims, ( 4) an assessment of any other factors (such as local jury tendencies, appearance of important witnesses, etc.) that may affect the liability analysis or exposure assessment, and (5) an opinion on the settlement value of the case. 7) All status repo1is from defense counsel must be copied to the CJPRMA Board member whose entity is involved in the claim.
This policy is designed to protect the member entity and CJPRMA, so that they can make informed litigation decisions on repo1ied cases. Past experience has shown that defense counsel retained by the member entities of CJPRMA are high-caliber, hard working attorneys who have done very well for their clients, and CJPRMA is grateful for their eff01is. Defense counsel are cautioned, however, that case repo1iing is given a high priority by CJPRMA and its members, and is a major consideration in evaluating counsel's performance. 17
Exhibit E
LITIGATION GUIDELINES
The following guidelines should be followed when the scope of work includes representing the Successor Agency in litigation:
a. The Special Counsel shall consult the Successor Agency Attorney regarding the component parts of litigation handled so that the Successor Agency Attorney, in consultation with the City Council, if necessary, can determine whether a particular activity is reasonable in light of its costs and benefits. b. The Successor Agency Attorney must approve the identity and number of staff assigned to the litigation, and any changes.
c. All pleadings shall be submitted to the Successor Agency Attorney for review prior to filing.
d. Copies of major work product, pleadings, motions, orders, decisions, research memoranda, reports on significant developments, and quarterly status reports shall be submitted to keep the Successor Agency Attorney advised of any major developments in the lawsuit. Such copies shall be provided in electronic format compatible with software in the Successor Agency Attorney's office.
e. Generally, the Successor Agency Attorney will rely upon Special Counsel for guidance on litigation strategy. Nonetheless, prior approval from the Successor Agency Attorney is necessary for demurrers, motions for summary judgment and discovery motions. f. Successor Agency expects that Special Counsel will resolve all discovery disputes without court intervention. If this is impossible due to the conduct of others, please inform the Successor Agency Attorney immediately. Successor Agency's intent is to have discovery be fair and open with the money spent on reviewing relevant items that are discovered, not on discovery battles.
g. Provide full descriptions of legal tasks performed. This will help the Successor Agency Attorney follow case development and understand Firm's strategy. h. Some types of litigation-related expenses require prior approval by the Successor Agency Attorney, including, but not limited to, experts and investigators. Expenses over a certain dollar amount always require prior approval. See Section III (Reimbursements) of Exhibit B (Billing Protocols and Guidelines) of this Agreement for a list of those expenses that may be reimbursed.
18
Exhibit F
City of Richmond - Insurance Requirements - Type 2:
Professional Services
In all instances where CONTRACTOR or its representatives will provide professional services (architects, engineers, construction management, counselors, medical professionals, hospitals, clinics, attorneys, consultants, accountants, etc.) to the City of Richmond (City), the City requires the following MINIMUM insurance requirements and limits .
CONTRACTOR.shall procure and maintain for the duration of the contract, agreement, or other order for work, services or supplies, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the CONTRACTOR, its agents, representatives, employees or subcontractors. Maintenance of proper insurance coverage is a material element of the contract. Failure to maintain or renew coverage or to provide evidence of renewal may be treated by the City as a material breach of contract.
CONTRACTOR agrees tl:iat in the event of loss due to any of the perils for which it has agreed to provide Commercial General Liability insurance, CONTRACTOR shall look solely to its insurance for recovery.
CONTRACTOR hereby grants to CITY, on behalf of any insurer providing Commercial General Liability insurance to either CONTRACTOR or CITY with respect to the services of CONSULTANT herein, a waiver of any right to subrogation which any such insurer of said CONTRACTOR may acquire against the CITY by virtue of the payment of any loss under such insurance.
Original, signed certificates and original, separate policy endorsements, naming the City as an additional insured for general liability coverage, as well as a waiver of subrogation for Workers' Compensation insurance, shall be received and approved by the City before any work may begin . However, failure to do so shall not operate as a waiver of these insurance requirements.
City reserves the right to modify or require additional coverages for specific risk exposures depending on scope of CONTRACTORS work.
Minimum coverage is detailed below. The policy limits of coverage shall be made available to the full limits of the policy. The minimum limits stated herein shall not serve to reduce the policy limits of coverage of CONTRACTOR.
Minimum Scope of Insurance - the following forms shall be provided and coverage shall be at least as broad as the following:
1. Insurance Services Office Commercial General Liability coverage (ISO Occurrence Form CG 0001), and including coverage for bodily and personal injury, property damage, and products and completed operations (if applicable).
2. Insurance Services Office Automobile Liability coverage (ISO Form CA 0001, Code 1, Any Auto).
3. Original and Separate Additional Insured Endorsement for General Liability (ISO Form CG 20 10 11/85 or its equivalent) with primary and non-contributory language.
4. Workers' Compensation Insurance as required by the State of California including Employer's Liability coverage.
5. Original and Separate Waiver of Subrogation for Workers' Compensation insurance .
6. Professional Liability or Errors & Omissions Liability Insurance appropriate to the CONTRACTOR's profession (if required.)
Re uired Covera e Minimum Limits
Workers' Compensation and
Employers' Liability
General Liability
(primary and excess limits
combined)
Statutory limits as required by the State of California including $1 million Employers' Liability per accident, per employee for bodily injury or disease.
If CONTRACTOR is self-insured, provide a certificate of Permission to Self Insure, signed by the California Department of Industrial Relations and Self Insurance. If contractor is a sole proprietor (has· no employees) than contractor must sign "Contractor Release of Liability" found at:
http://www.ci.richmond.ea.us/index.aspx?nid=61 .
$2,000,000 per occurrence for bodily injury, personal injury and property damage. If the policy includes a general aggregate, either the general aggregate shall apply separately to this project, service or location or the minimum required aggregate limit shall be twice the per occurrence limit ($4 million aggregate limit).
Policy shall be endorsed to name the City of Richmond as an additional insured per the conditions detailed below.
19
Exhibit F
City of Richmond - Insurance Requirements - Type 2:
Professiona I Services
Automobile Liability
Professional Liability or Errors &
Omissions Liability -
Required for all professionals
including architects, engineers,
consultants, construction
management, counselors, medical
professionals, hospitals, clinics,
attorneys and accountants, & other
consultants as may be required by
the City.
Required Policy Conditions
Additional Insured Endorsement
Primary and Noncontributory
Waiver of Subrogation
Endorsement Form
Deductibles and Self-Insured
Retentions
A. M. Best Rating
Umbrella/Excess Liability Policies
$1,000,000 per occurrence for bodily injury and property damage.
PROJECT COST REQUIRED LIMIT
$0 - $1 million $1 million p/o
$1 million - $5 million $2 million p/o
Over $5 million $5 million p/o
Applicable to Genera l Liability coverage.
The City of Richmond, its officers, officials, emp loyees, agents and volunteers are to be named as additional insureds for all liability arising out of the operations by or on behalf of the named insured including bodily injury, deaths and property damage or destruction arising in any respect directly or indirectly in the performance of this contract.
ISO form CG 20 10 (11/85) or its equivalent is required. If the Contractor is supplying their product or providing a service then the endorsement must not exclude products and completed operations coverage. If it does, then CG 20 37 (10/01) is also required.
SAMPLE Endorsements can be found at
http://www.ci.richmond.ca.us/index.aspx?nid=61.
The contractor's insurance coverage must be primary coverage as it pertains to the City, its officers, officials, employees, agents and volunteers. Any insurance or self insurance maintained by the City is wholly separate from the insurance of the contractor and in no way relieves the contractor from its responsibi lity to provide insurance.
Contractor's insurer will provide a Waiver of Subrogation in favor of the City for Workers' Compensat ion Insurance during the life of this contract.
SAMPLE Endorsements can be found at
http://www.ci.richmond.ca.us/index.aspx?nid=61.
Any deductible or self-insured retention must be declared to and approved by the City . At the option of the City either the insurer shall reduce or eliminate such deductibles or self-insured retention as respects the City or the CONTRACTOR sha ll procure a financial guarantee in an amount equal to the deductible or self-insured retention guarantee ing payment of losses and related investigations, claims administration and defense expenses.
Contractor is responsible for satisfaction of the deductible and/or self-insured retention for each loss.
A:VII or Better. If the A.M. Best Rating falls below the required rating, CONTRACTOR must replace coverage immediately and provide notice to City.
If an Umbrella or Excess Liability Policy is used to meet the liability limits, coverage sha ll be as broad as specified for underlying coverage's and cover those insured in the underlying policies . 20
Exhibit F
City of Richmond - Insurance Requirements - Type 2:
Professional Services
Claims-Made Policies
If any insurance policy is written on a claims-made form: 1) the retroactive date must be shown, and must be before the date of the contract or the beginning of contract work. 2) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work. 3) If coverage is canceled or non-renewed, and not replaced with another claims made policy form with a retroactive date prior to the contract effective date, the Contractor must purchase an extended period coverage for a minimum of five (5) years after completion of contract work.
Subcontractors
CONTRACTOR shall include all subcontractors as insured under its policies or shall furnish to the City for review and approval, separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein.
CONTRACTOR agrees to defend and indemnify the City of Richmond for any damage resulting to it from failure of either CONTRACTOR or any subcontractor to take out or maintain the required insurance policies. The fact that insurance is obtained by CONTRACTOR, and/or CONTRACTOR's subcontractors, will not be deemed to release or diminish the liability of CONTRACTOR, including, without limitation, liability under the indemnity provisions of this contract. Damages recoverable by CITY from CONTRACTOR or any third party will not be limited by the amount of the required insurance coverage.
Verification of Coverage
All original certificates and endorsements shall be received and approved by the City before work may begin. The City of Richmond reserves the right to require complete, certified copies of all required insurance policies including endorsements affecting the coverage at any time.
Original insurance certificates and required policy endorsements shall be mailed or delivered to the Designated Project Manager for the City of Richmond.
Insurance certificates and endorsements may be faxed to the Designated Project Manager. However, CONTRACTOR must mail the original certificates and endorsements to Designated Project Manager once faxed.
Continuous Coverage
CONTRACTOR shall maintain the required insurance for the life of the contract. Should the CONTRACTOR cease to have insurance as required during this time, all work by the CONTRACTOR pursuant to this agreement shall cease until insurance acceptable to the City is provided. In the event that CONTRACTOR fails to comply with the City's insurance requirements, the City may take such action as it deems necessary to protect the City's interests. Such action may include but is not limited to termination of the contract, withholding of payments, or other actions as the City deems appropriate.
If services or the scope of work extend beyond the expiration dates of the required insurance policies initially approved by the City, CONTRACTOR must provide updated certificates and endorsements indicating that the required coverage, terms and conditions are still in place. Renewal certificates and updated endorsements shall be mailed to the Designated Project Manager.
Cancellation
CONTRACTOR shall ensure that coverage shall not be cancelled, reduced or otherwise materially changed except after thirty (30) days' prior written notice has been given to the City.
Reporting Requirements
Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees or volunteers.
Consistent with Public Policy
The insuring provisions, insofar as they may be judged to be against public policy shall be void and unenforceable only to the minimum extent necessary so that the remaining terms and provisions herein may be consistent with public policy and thus enforceable 21
First Amendment to Agreement for Legal Services A-1
FIRST AMENDMENT TO AGREEMENT FOR LEGAL SERVICES
BETWEEN
THE CITY OF RICHMOND
AND
HOLLAND & KNIGHT, LLP
This First Amendment to the Agreement for Legal Services between the City of Richmond (“City”) and HOLLAND & KNIGHT , LLP (“Special Co unsel”) (the "Second Amendment") is entered into as of JUNE 28, 2022, by and between the City and Special Counsel with reference to the following facts:
RECITALS
WHEREAS, the City and Special Counsel entered into that certain Legal Services Agreement (“Original Agreement”) for representation of the City and City-related entities; and
WHEREAS, the City now desires for Special Counsel t o continue its representation of the City and to inc rease the compensation limit by FIFTY Thousand Dollars ($50,000); and
WHEREAS, the City and Special Counsel desire to amend the Original Agreement pursuant to this First Amendment.
NOW, THEREFORE, in consideration of the recitals hereof, and other mutual covenants and promises contained herein and for other valuable consideratio n, the receipt and sufficiency of which are hereby acknowledged, the City and Special Counsel agree as follows:
1. Amendment. Exhibit A of the Original Agreement, “Scope of Work and Schedule of Fees & Charges,” is hereby amended to read as shown in Attachment 1 to this First Amendment.
2. Effect of First Amendment. Except as provided in this First Amendment, all other terms of the Original Agreement shall remain in full force and effect.
3. Counterparts. This First Amendment may be executed in counterparts each of which shall be an original and all of which shall constitute one and the same instrument.
[Signatures on following page]
First Amendment to Agreement for Legal Services A-2
IN WITNESS WHEREOF, the City and Special Counsel have caused this First Amendment to be effective as of the last date written below.
CITY OF RICHMOND HOLLAND & KNIGHT, LLP
________________________ By __________________________ Mayor
Title _________________________
Attest:
By: _____________________
City Clerk
Approved as to form:
By: _____________________
Interim City Attorney
First Amendment to Agreement for Legal Services A-3
Attachment 1
SCOPE OF WORK AND SCHEDULE OF FEES & CHARGES
Scope of work:
Special Counsel shall advise the City regarding the remedial action plan and post clean up monitoring for Miraflores.
(Successor Agency Contact Attorney: James Atencio, Sr. Assistant City Attorney)
Schedule of Fees & Charges:
Hourly Rates
NICHOLAS TARG $660/hour
Compensation:
Only those costs and expenses set forth in Section III of Exhibit "B", entitled "Reimbursements" shall be paid to Special Counsel.
Total compensation for legal services and reimbursements shall be charged in accordance with Exhibits "A" and "B" and shall not exceed SIXTY Thousand Dollars ($60,000) for attorneys’ fees and reimbursements.
Second Amendment to Agreement for Legal Services A-1
SECOND AMENDMENT TO AGREEMENT FOR LEGAL SERVICES
BETWEEN
THE CITY OF RICHMOND
AND
MALONEY EMPLOYMENT LAW
This Second Amendment to the Agreement for Legal Services between the City of Richmond (“City”) and MALONEY EMPLOYMENT LAW (“Special Counsel ”) (the "Second Amendment") is enter ed into as of JUNE 28, 2022 , by and between the City and Special Counsel with reference to the following facts:
RECITALS
WHEREAS, the City and Special Counsel entered into that certain Legal Services Agreement (“Original Agreement”) for representation of the City in connection with employment litigation matters, including appeals, as assigned by the City Attorney; and
WHEREAS, the City now desires for Special Counsel t o continue its representation of the City and to inc rease the compensation limit by One Hundred and Fifty Thousand Dollars ($150,000); and
WHEREAS, the City and Special Counsel desire to amend the Original Agreement pursuant to this Second Amendment.
NOW, THEREFORE, in consideration of th e recitals hereof, a nd other m utual covenants and promises contained herein and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and Special Counsel agree as follows:
1. Amendment. Exhibit A of the Original Agreement, “Scope of Work and Schedule of Fees & Charges,” is hereby amended to read as shown in Attachment 1 to this First Amendment.
2. Effect of Second Amendment. Except as provided in this Second Amendment, all other terms of the Original Agreement shall remain in full force and effect.
3. Counterparts. This Second Amendment may be executed in counterparts each of which shall be an original and all of which shall constitute one and the same instrument.
[Signatures on following page]
Second Amendment to Agreement for Legal Services A-2
IN WITNESS WH EREOF, the City a nd Special Counsel have caused this Second Amendment to be effective as of the last date written below.
CITY OF RICHMOND MALONEY EMPLOYMENT LAW
________________________ By __________________________ Mayor
Title _________________________
Attest:
By: _____________________
City Clerk
Approved as to form:
By: _____________________
City Attorney
Second Amendment to Agreement for Legal Services A-3
Attachment 1
SCOPE OF WORK AND SCHEDULE OF FEES & CHARGES
Scope of work:
Special Counsel shall advise and represent the City of Richmond in employment litigation matters, as assigned by the City Attorney and to represent the City in personnel board hearings.
(City’s Contact Attorney: Shannon L. Moore, Sr. Assistant City Attorney)
Schedule of Fees & Charges:
Hourly Rates
CHRISTINE MALONEY $325/hour
PARALEGAL(S) $145/hour
Compensation:
Only those costs and expenses set forth in Section III of Exhibit "B", entitled "Reimbursements" shall be paid to Special Counsel.
Total compensation for legal services and reimbursements shall be charged in accordance with Exhibits "A" and "B" and shall not exceed the sum of Hundred Ten Thousand Dollars ($360,000) for attorneys’ fees and reimbursements.
01337.0027/789679.1 Page 1 of 4
June 28, 2022
City Attorney's Office
DATE: June 28, 2022
TO: Mayor Butt and Members of the City Council
FROM:
Dave Aleshire, Interim City Attorney
Joe Leach, Director of Public Works
Subject:
Ordinance to Revise and Amend Richmond Municipal
Code Chapter 12.30
FINANCIAL IMPACT: There is no financial impact related to this item at this phase of consideration. However, the proposed
amendment to Chapter 12.30 does add provision(s)
addressing “private landowner” encroachments into the
public Right-of-Way. These newly added provisions may
potentially increase costs in staff time for application review; notice provisions; et al. Any private owner
applying for an encroachment agreement pursuant to
Chapter 12.30 would also remit fees as set forth in the Master Fee Schedule; such additional revenue may
offset potential increases in staff time.
PREVIOUS COUNCIL
ACTION:
9/28/21: City Council directed City staff to draft an
Ordinance addressing encroachments into the public
ROW. 12/21/21: City staff presents Ordinance to City
Council for consideration. City Council directs City staff to provide revisions. 4/5/22: Revised Ordinance presented
for first reading; City Council directs City staff to make minor revisions. 4/19/22: Revised Ordinance presented
for second reading. City Council requests further
revisions and continues the matter.
AGENDA
REPORT
01337.0027/789679.1 Page 2 of 4
June 28, 2022
STATEMENT OF THE
ISSUE:
The City’s Municipal Code (the “RMC”) contains two
chapters that address encroachments into the public
Right-of-Way (“ROW”) -- Chapter 12.29 (“Street Opening
and Pavement Restoration Regulations”) and Chapter
12.30 (“Video Service Provider, Utility and Special District Encroachments”). Neither chapter addresses private
landowner encroachments into the unimproved public
ROW. City has used a variable ad hoc process to grant
Encroachment Agreements in the past. Further, neither
chapter currently addresses easements or street
vacations. Consideration of proposed amendments
include: revise Chapter 12.30 to include Chapter 12.29
and remove chapter duplications; and add provisions for private landowner encroachments into the public ROW;
easements; and street vacations. Thereafter, Chapter
12.29 would be rescinded in its entirety, and the
amended and revised Chapter 12.30 would be retitled
“Encroachments and Easements.”
RECOMMENDED ACTION: ADOPT an Ordinance (second reading) amending RMC Chapter 12.30 (“Video Service Provider, Utility and
Special District Encroachments”) by incorporating
Chapter 12.29 (“Street Opening and Pavement
Restoration Regulations”); adding provisions that address private landowner encroachments into the public Right-
of-Way (ROW); easements; and street vacations; retitling Chapter 12.30 “Encroachments and Easements,” and
rescinding Chapter 12.29 in its entirety - City Attorney’s Office/Public Works Department (Dave Aleshire 510-620-
6509/Joe Leach 510-620-3008).
DISCUSSION:
Presently, the Richmond Municipal Code (RMC) contains two chapters that address encroachments in the public Right-of-Way (“ROW”). Both chapters reside in Article XII (“Public Works”) – Chapter 12.29 (“Street Opening and Pavement Restoration Regulations”); and Chapter 12.30 (“Video Service Provider, Utility and Special District Encroachments”).
Broadly speaking, Chapter 12.29 governs trenching, pavement, etc. in the public ROW; whereas Chapter 12.30 provides for the utilization of public ROW by specific entities, under certain circumstances, and directs when an entity must acquire a permit.
Although separate Chapters, both 12.29 and 12.30 contain procedural redundancies, and neither chapter addresses private landowner encroachments into the unimproved public ROW. Further, neither existing Chapter addresses easements or street vacations.
01337.0027/789679.1 Page 3 of 4
June 28, 2022
The proposed amendments would revise Chapter 12.30 such that it includes Chapter
12.29 and removes duplications between existing chapters. The amendments also add provisions addressing private landowner encroachments into the unimproved public ROW; easements; and street vacations. Thereafter, Chapter 12.29 would be rescinded in its entirety, and the amended and revised Chapter 12.30 would be retitled “Encroachments and Easements.”
The newly proposed Chapter 12.30 (“Encroachments”) divides itself into six Parts – Part 1 (“General”), Sections 12.30.10 through 12.30.110; Part 2 (“Street and Paving”), Sections 12.30.120 through 12.30.160; Part 3 (“Private Landowner Encroachments into Unimproved Portions of the Public ROW”), Sections 12.30.170 through 12.30.200; Part 4 (“Easements”), Section 12.30.210; Part 5 (“Street Vacations”), Sections 12.30.220 through 12.30.240; and Part 6 (“Violations, Revocations, Other Penalties, and Appeals”), Sections 12.30.250 through 12.30.290. This newly proposed division allows for separate categories of encroachments where relevant requirements, technologies, regulations, et al. may be categorically curated. The revision also eliminates section or chapter duplication(s) by establishing separate portions for general terms and violations, et al. The overall effect both clarifies and streamlines the City’s encroachment provisions and permitting requirements and also allows a chapter whose structure will scale to include future categorial amendments, if needed.
Historically, the City entered into Encroachment Agreements with private landowners for ROW encroachments. These Encroachment Agreements were recorded on the property’s title and became binding on successors. However, even the informal practice has not been consistent, with some agreements approved by Council and others approved by the City Manager. The RMC has been silent on private landowner encroachments into the public ROW, so the City’s past practice of Encroachment Agreements with private landowners has not been documented previously within the Code. Thus, as it relates to the newly proposed Part 3 (“Private Landowner Encroachments into Unimproved Portions of the Public ROW”), the RMC now outlines a process for Application and attendant requirements, Notice, Appeal, et al. for private landowner Encroachment Agreements.
The Mayor suggested changes on first reading with the added language requiring a minimum, unobstructed passageway of at least nine (9) feet for one lane or eighteen (18) feet for two lanes with a four (4)-foot sidewalk. Subsequently, after checking field conditions, there are two (2) areas proposed for Encroachment(s) of which City staff is aware – one at 8 Western Drive and one at 130 Scenic Drive – where meeting the newly proposed condition may be challenging, but we cannot tell without plans.
Moreover, an unknown number of other Encroachment conditions exist in this area, and in other parts of the City, where the newly proposed condition may not be met.
Staff believes these projects should be considered at a public hearing under the new ordinance and suggests further language to complement the Mayor’s suggestion. That would be to add a finding that the special conditions, including the minimum street
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width, can be modified by the Council. It would be in Section 12.30.190(a)(1)(G), and states:
“The Encroachment conflicts with a specific condition below, but the Encroachment is warranted due to special circumstances specifically identified and addressed in the Encroachment Agreement.”
At its April 19th meeting, City Council received a joint presentation from the Public Works Department and the City Attorney’s Office. The City Council then took public comment and subsequently directed City staff to continue its research into the points above. We believe the above language gives the Council flexibility and recommend that you proceed.
ENVIRONMENTAL REVIEW:
This Ordinance is not a project under the requirement(s) of the California Environmental Quality Act and its related State CEQA Guidelines (collectively, “CEQA”) because it can be seen with certainty to have no possibility of a significant effect on the environment and thus meets the CEQA exemption contained in CEQA Guidelines section 15061(b)(3). CEQA applies only to projects that have the potential to cause significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. In this circumstance, the amendments to the Ordinance would have no, or only a de minimis, impact on the environment because changing the provisions within existing Municipal Code chapters to clarify the permitting process, et al. does not have direct or indirect physical environmental impact(s). The foregoing determination is made by the City Council in its independent judgment.
DOCUMENTS ATTACHED:
Attachment 1 - Proposed Ordinance to Amend Chapter 12.30 Attachment 2 - Proposed Amended Chapter 12.30 (clean version) Attachment 3 - Proposed Amended Chapter 12.30 (tracked changes) Attachment 4 - Proposed Amended Chapter 12.30 (original version) Attachment 5 - Proposed Rescinded Chapter 12.29 (tracked changes) Attachment 6 - Proposed Rescinded Chapter 12.29 (original version)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RICHMOND AMENDING THE CITY OF RICHMOND MUNICIPAL CODE CHAPTER 12.30 (“VIDEO SERVICE PROVIDER, UTILITY AND SPECIAL DISTRICT
ENCROACHMENTS”) AND RETITLING IT “ENCROACHMENTS AND
EASEMENTS” AND RESCINDING CHAPTER 12.29 (“OPENING AND PAVEMENT RESTORATION ENCROACHMENTS”) IN ITS ENTIRETY
WHEREAS, the Richmond City Council, pursuant to police powers delegated to it by the California Constitution, has the authority to enact legislation that promotes the public health, safety, and general welfare of its residents; and
WHEREAS, the City of Richmond’s Municipal Code contains two chapters that address encroachments in the Public Right-of-Way (“ROW”) in Article XII (“Public Works”); and
WHEREAS, Chapter 12.29 (“Street Opening and Pavement Restoration Regulations”) governs trenching, pavement, et al. in the ROW and Chapter 12.30 (“Video Service Provider, Utility and Special District Encroachments”) provides for the utilization of ROW by specific entities; and
WHEREAS, Chapter 12.29 and Chapter 12.30 address encroachment permits in the ROW, but neither addresses private landowner encroachments into the unimproved ROW; and
WHEREAS, historically the City has issued encroachments permits administratively through its Engineering Department at a rate of approximately 2,000 encroachment permits per year; and
WHEREAS, pursuant to Government Code section 38775, the City generally prohibits property owners from installing or maintaining encroachments within the ROW, although exceptions have been made; and
WHEREAS, the City has previously permitted property owners to install fences, landscaping, and similar improvements within the ROW upon the execution of an Encroachment Agreement, but there has not been a regularly applied process; and
WHEREAS, the past practice of approving private landowner Encroachment Agreements has involved a Council-adopted Resolution authorizing the Mayor to enter into the Encroachment Agreement on the City’s behalf; or City Manager approval and subsequent recordation of the Encroachment Agreement with the County Recorder’s Office; and
WHEREAS, the City desires to create an amended Chapter 12.30 to memorialize within its Code the City’s practice of entering into Encroachment Agreements with private landowners; and
WHEREAS, various applications are currently pending for encroachments, and Staff should expedite preparation of applications and is authorized to commence processing applications immediately upon introduction of this Ordinance; and
WHEREAS, the City desires to address Encroachment Permits and landowner Encroachment Agreements in the ROW within a revised Chapter 12.30; while omitting categorical duplicities; and to rescind Chapter 12.29 in its entirety; and
WHEREAS, the City also desires to address a process and attendant provisions for Easement(s) and Street Vacation(s) within the revised Chapter 12.30.
THEREFORE, LET IT BE RESOLVED THAT NOW THE CITY COUNCIL OF THE CITY OF RICHMOND does ordain as follows:
SECTION 1.
Chapter 12.30 – ENCROACHMENTS AND EASEMENTS IN THE PUBLIC RIGHTS OF WAY
12.30.010 – PURPOSE
The Public Rights-of-Way are unique, physically limited public resources held in trust for the public’s benefit, and they require proper management to maximize their efficiency and minimize the taxpayers’ costs; to protect against foreclosure of future economic expansion due to premature exhaustion of these resources; and to minimize the inconvenience to, and negative effects on, the public from use of these rights-of-way by individuals, contractors, utility companies, video service providers, utilities, special districts, et al.
To achieve this Chapter’s purpose, the City shall endeavor to coordinate its Capital Improvement Programs with those of Utility Companies and Franchisees with Facilities in, on, under, or above the Public Rights-of-Way. Information about planned work in the Right-of-Way shall be communicated as early in the process as possible.
Utility owners and franchisees should strive to coordinate street excavations to allow for simultaneous work and to prevent a street from multiple excavations within a twelve (12)-month period.
PART 1 - GENERAL
12.30.020 - Definitions
As used in this chapter:
“Agreement” means “Encroachment Agreement,” as defined below.
“Applicant” means any person, firm, partnership, association, corporation, company, entity, or organization who proposes to encroach upon a public place, right of way, sidewalk, or street and who has applied for a permit for the proposed encroachment, pursuant to the provisions of this chapter.
“Arterial street” means any street with a traffic volume of 7,500 to 15,000 vehicles per day, including Barrett Avenue, Castro Ranch Road, Garrard Boulevard, Harbor Way, Macdonald Avenue, Pennsylvania Avenue, Potrero Avenue, Rheem Avenue,
Seventh Street, Solano Avenue and Thirty-Seventh Street.
“Asphalt concrete” or “AC” means blend of aggregate and asphalt binder meeting the specifications set forth in the City of Richmond Standard Specifications Section 39, “Asphalt Concrete” and the Caltrans Standard Specifications Section 39, “Asphalt Concrete.”
“Chip Seal” (see the definition of “Slurry Seal”).
“City Projects” mean any city-funded construction or reconstruction, including but not limited to, public works projects and community facilities (e.g. libraries, community centers, et al.), excluding public/private partnerships.
“Communications service equipment” and “communications service facilities” mean the equipment and Facilities used by a video service provider to provide cable or video service.
“Easement” or “Easements” mean interest(s) in land of another entitling easement owner to limited use or enjoyment of other’s land, evidenced by an instrument recorded on and burdening the landowner’s title, and as provided in California Civil Code Section § 887.010, et seq.
“Encroach” or “Encroaching” means constructing or placing temporary or permanent structures, improvements, Facilities or materials in, on, over, or under any ROW or using any ROW so as to prevent, obstruct, or interfere with the normal use of that way. The right to encroach is in the nature of a license and is revocable by the City at any time as provided herein. Encroachment includes, but is not limited to, the performance of any of the following acts:
(a) Excavating or disturbing the ROW;
(b) Erecting or maintaining any post, sign, pole, fence, guardrail, wall, pipe, conduit, cable, wire, communication service equipment, or other Facility or structure on, over, or under a ROW;
(c) Planting any tree, shrub, grass or other growing thing within the ROW;
(d) Placing or leaving on the ROW any rubbish, brush, earth or other material;
(e) Constructing, placing, or maintaining on, over, under or within a ROW any pathway, sidewalk, driveway, or other surfacing; any culvert or other surface drainage or subsurface drainage Facility; or any pipe, conduit, wire, communication service equipment or Facilities, or cable;
(f) Constructing, placing, planting, or maintaining any structure, embankment, excavation, tree, or other object adjacent to the ROW,
which causes, or may cause, an encroachment.
“Encroachment Agreement” means a written, contractual license agreement between the City and a private landowner regarding the terms and conditions of a Facility in the ROW; and, which agreement is recorded on the property’s title and binding on its successors thereafter unless revoked by the City.
“Encroachment” means the act of encroaching, as defined above.
“Excavation” means any trench cuts within the street ROW to access or install a utility line or any related Facility in excess of four (4) square feet or four (4) feet long, whichever is smaller. All such excavations shall require an Encroachment Permit.
“Facility” or “Facilities” mean any fiber-optic, co-axial, or copper cable; communication service equipment; telephone, telecommunications, electric or other wire, line or equipment; utility structure; oil, gas, or other pipeline; duct; conduit; cabinet; tunnel; vault; drain; manhole; splice box; surface location marker; pole; subsurface tiebacks; soil nails; stairs; access ramps; subsurface foundations; landscape features, including but not limited to: curbs around planter areas; planter boxes; clocks; bus shelters; phone booths; bike racks; fencing; retaining walls; benches; stockpiles; building materials; and other appurtenances or tangible things located in, upon, above, beneath, or across any ROW.
“Landowner” means any real-property owner abutting or adjacent to the ROW as defined herein.
“Licensee” means the “Permittee” under the Permit; or could be the person with the right to Encroach under an “Encroachment Agreement;” or the person with pre-existing or other Encroachment right(s) hereunder.
“Major arterial street” means any street with a traffic volume of more than 15,000 vehicles per day, including Carlson Boulevard, Central Avenue, Cutting Boulevard, Hilltop Drive, May Road, Richmond Parkway, Robert H. Miller Drive, San Pablo Avenue, San Pablo Dam Road, Thirteenth Street, Twenty-Second Street, and Twenty-Third Street.
“Major defects” means any defects greater than the deficiency tolerances specified in the City of Richmond Standard Plans and Details; the Caltrans Standard Specifications and Details; or Individual Contract Plans and Specifications.
“Micro Paving” (see “Slurry Seal” definition).
“Micro Surfacing” (see “Slurry Seal” definition).
“Parklet” is the use of existing parking spaces in the public street as non -exclusive outdoor dining spaces for restaurants on abutting properties. See RMC Chapter
14.46. “Permit” means any Permit referenced in, or required by, this Chapter.
“Permittee” or “Licensee” means any means any person, firm, partnership, association, corporation, company, entity, or organization who proposes to encroach upon a public place, right of way, sidewalk, or street, and who has been issued a permit for the proposed encroachment pursuant to the provisions of this Chapter, including any lawful successor, transferee, or assignee of the original Permittee.
“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 or its officers, employees, or agents.
“Prohibition Street” means streets that have been reconstructed or resurfaced within the past three to five years (see Section 12.30.140, below).
“Public Right-of-Way” or “ROW” means the area in, upon, above, beneath, or across any land or interest therein which by deed, conveyance, agreement, easement, dedication, usage, or process of law is reserved for, or dedicated to, the use of the general public for travel, and includes any public street, road, highway, freeway, bridge, lane, court, alley, boulevard, sidewalk, median, parkway or emergency vehicle easement.
“Public Street” means the full width of the surfaced or traveled portion, including shoulders, of any road, street, path, lane or alley dedicated to, reserved for, or used by or for the general public when those roads, streets, paths, lanes and alleys have been accepted as, and declared to be part of, the City system of public streets, except highways forming a part of the State highway system.
“Slurry Seal” means a mixture of polymer modified asphalt emulsion, mineral aggregate, mineral filler, water, and other additives, properly proportioned, mixed, and spread in accordance with the City of Richmond Standard Plans and Details and the Caltrans Standard Specifications; usually less than one-half (½)-inch thick.
“Special District” means any agency of the State for the local performance of governmental or proprietary functions within limited boundaries, and includes a county service area, a maintenance district or area, an improvement district or improvement zone, or any other zone or area formed for the purpose of designating an area within which a property tax rate will be levied to pay for a service or improvement benefitting that area.
“Street Overlay” means one or more courses of asphalt construction on an existing pavement; usually greater than one-half (½)-inch thick; and generally includes an
asphalt leveling course to contour-correct old pavement.
“Street Vacation” means the complete or partial abandonment or termination of the public right to use a street, highway, or public service easement. A street or highway is defined as all or part of, or any right in, a state highway or other public highway, road, street, alley, trail, or other public right-of-way or easement.
“Public Service Easement” means an easement acquired for public use by dedication or otherwise, for sewers, pipelines, electrical or water transmission lines, storm drains, drainage canals, and other limited use public easements other than for street or highway purposes.
“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.
“Underground utility district” has the meaning set forth in Chapter 12.48 of the Richmond Municipal Code.
“Utility company” shall mean any public utility company or entity authorized to work in the public right of way providing public utility services such as water, electricity, natural gas, telephone, and communication.
“Utility” means any person or entity providing electricity, gas, telephone, telecommunications, water, or other services to customers, and which pursuant to State law or local franchise, is entitled to install its Facilities in the ROW.
“Video Service” has the meaning set forth in California Public Utilities Code Section 5830(s).
“Video Service Provider” has the meaning set forth in California Public Utilities Code Section 5830(t) and, in addition, refers collectively to any cable operator as defined in Public Utilities Code Section 5830(b), or open-video system operator as defined in Public Utilities Code Section 5830(n).
2.30.030 – Applicability and Exceptions
Any person must obtain a Permit or Agreement in accordance with this Chapter before placing any Encroachment in, on, over, or under any ROW within the City.
(a) For purposes of this Chapter, a person may include, but is not limited to: Video Service Provider, Utilities, and Special Districts; or construction by private contract of any work in the ROW (e.g., sewer laterals, et al.). Where the provisions conflict with franchise provisions or other agreement between a Permittee and the City or state, the franchise’s provisions or other agreement shall control.
(b) Notwithstanding subsection (a), above, no Permit or Agreement shall be required for any of the following:
(1) Actions of any City officer or employee engaged in the discharge of official duties;
(2) Performance of work under contracts to the City, including work for City project(s);
(3) Encroachments existing prior to this Chapter’s effective date; however, nothing in this Chapter shall preclude City Engineer from requiring an appropriate Permit or Agreement documenting the rights and obligations of the licensee, and any preexisting Encroachment remains subject to removal at any time when City Engineer determines the Encroachment adversely affects the safety, capacity, or integrity of the ROW and interferes with public use;
(4) Maintenance or repair of existing pipes, Facilities, conduits, or other structures lawfully on, or under, a ROW where such maintenance or repair work will not disrupt traffic in an arterial or major arterial street;
(5) Emergency street cut or excavation in ROW to repair a broken or defective pipe, Facility, or conduit lawfully on, or under, a public arterial street, for the preservation of life and property when an urgent necessity arises, and City offices are closed. Reasonable vehicular and pedestrian barriers, or other traffic controls, shall be provided during the performance of these repairs. Person performing the repair work shall notify the City’s Engineering and Police Department(s) by telephone at the time any such repair work is commenced and must apply for a Permit within one (1) calendar day after City offices re-open;
(6) Planting, trimming, pruning or removal of any new or existing tree, shrub, or plant within the ROW where a Permit is issued for such work pursuant to the Code’s Chapter 10.08, and where no traffic lane closure is anticipated;
(7) Sidewalk cafes and restaurants, which shall be governed by the provisions and requirements of the Code’s Chapter 15.04;
(8) City Council-approved street closures for special events.
(c) Notwithstanding subsections (a) and (b), above, none of the provisions in this Chapter shall apply to “Part 3 – Private Landowner Encroachment(s) Into Unimproved Portions of the ROW” unless expressly stated.
(d) Any Encroachment that requires, but does not have, a Permit shall be deemed a violation of this Chapter and a public nuisance, which the City may abate pursuant to any applicable provision of law including, but not limited to, this Code’s Chapter 9.22.
12.30.040 – Permit Applications, Generally
(a) Any and all construction work, including but not limited to work involving streets and paving, including excavations and trenching, within the City’s ROW shall require an Encroachment Permit.
(b) For additional permit application requirements, et al. related to any excavation work within the City’s ROW, see Section 12.30.060 and Part 2 (“Streets and Paving”).
(c) Permit application(s) may be obtained from the City’s Engineering Services Department.
12.30.050 – Permit Application Requirements
(a) An application for an Encroachment Permit, including renewal of an existing Permit, shall be on a City Engineer-prescribed form. The Applicant shall sign the form, which shall include all the following materials unless the City Engineer provides a written waiver:
(1) Name, address, and telephone number of the Applicant; (2) Name, address, and telephone number of the contractor, if a contractor will perform any proposed work and contractor is not Applicant; (3) Location, purpose, extent, and nature of the proposed work; (4) Period of time when the proposed work will be performed; (5) Traffic and pedestrian control plan(s) for the proposed work’s location; (6) Certificate of insurance from Applicant’s and/or contractor’s insurance carrier in a form satisfactory to the City, and which names the City as an additional insured;
(7) Key map and detailed improvement plan showing all Facilities to be located in the ROW, including the material of construction; horizontal and vertical locations with respect to property and grade line(s); existing utilities; and all other pertinent Facilities and information the City Engineer requires. Unless exempted by State law, a California Registered Professional Civil Engineer shall prepare a detailed improvement plan;
(8) Any other specifications, analyses, or materials required by the City Engineer to describe the work; its location in, and its effect on, the ROW, including the mode of operation, maintenance and use;
(9) Current maps and records of the underground Facilities at the site; (10) Encroachment Permit fee set forth in the City’s Master Fee Schedule. (11) A deposit sufficient to cover the cost of mailed notice if required.
(b) In signing the application, Applicant attests that all information in support of the application is true and correct. When Applicant submits a completed and signed application form, all supporting documents and information, and the required fee, the application will be deemed complete. The City Engineer shall act upon an application for an Encroachment Permit within sixty (60) days after the application is complete.
(c) Registration. Prior to applying for a Permit, the City may require an individual performing the encroachment work to register with the City for a Permit and to provide the following:
(1) Warranty Bond: a cash deposit equal to the greater of five-hundred dollars ($500.) or twenty-five percent (25%) of the work’s value. Companies working under a franchise agreement that includes a bond are not required to post the cash deposit unless/until they have been issued a notice or citation for a violation by the City’s standards or Permit requirements;
(2) A current City Business License;
(3) Current Certificate of Insurance meeting the requirements of Section 12.30.090, below;
(4) 24-hour phone number for emergencies; and
(5) The name, telephone number, and mailing address (fax number, cell phone, and e-mail address if available) of the individual who will receive all City correspondence.
(d) As a condition of the Permit, Permittee shall provide evidence of a regional notification center-issued (e.g., Underground Service Alert, USA) inquiry identification number pursuant to California Government Code Section 4216.
(e) Permittees shall pay close attention to the location and alignment of all USA markings while performing their work.
USA Codes:
Electric: Red
Gas-Oil: Yellow
Communication-CATV: Orange
Water: Blue
Sewer: Green
Temporary Survey Markings: Pink
Proposed Excavation: White
(f) Excepting emergencies, Permits shall be pulled in advance of work. An emergency exists only for: life or property endangerment; or when an essential utility service is, or may be, interrupted during weekends, holidays, or between 5:00 p.m. and 8:00 a.m. of normal working days.
(g) In an emergency occurs, Permittee shall notify the City, and apply for a Permit for “emergency work,” within four (4) hours after the City offices open.
(h) Pre-construction meeting:
(1) A pre-construction meeting shall be held for all projects scheduled to take more than fifteen (15) working days to complete.
(2) Meeting attendees shall include the owner, contractor, any other involved agency, and the City.
(3) The City may issue administrative citations if a project scheduled for completion within fifteen (15) days exceeds the fifteen-day timeline and a pre-construction
meeting was not held
(4) The City shall approve the traffic control plan prior to the pre-construction meeting.
(i) By accepting a Permit, the Facility’s Permittee and/or Owner to whom the Permit has been issued agree to all the following:
(1) To follow all laws, rules, regulations, and Permit conditions. (2) To assure that their employees, contractors, and subcontractors, comply with all laws, rules, regulations, and Permit conditions.
(3) To indemnify the City against all claims for personal injury or property damage that may arise in connection with the work.
12.30.060 – Permit Application Requirements for Excavations In addition to the general permit application requirements in Section 12.30.50, any permit application related to excavation work shall also be subject to the provisions of this section.
(a) Any excavation work within the City’s ROW shall require a Permit specifically for excavation in addition to other required Permits. The individual performing the work shall apply for the Permit.
(b) All Permit applications for excavation work shall include plans that indicate the following:
(1) Street name to be excavated and nearest cross street. (2) Distance of proposed excavation from face of curb. (3) Distance of proposed excavation from intersection. (4) Size of the excavation (length and width).
(5) Location of any aboveground Facilities to be installed, showing:
(A) Distance from curb and any street Facilities/furnishings. (B) Purpose of the Facility.
(C) Size of the Facility.
(D) Location of doors and door swings.
(6) Location of any existing and to-be-installed underground Facilities showing:
(A) Conduit vaults, maintenance holes, pipes, etc.
(B) Structural detail and additional information for structures to be installed such as vaults and maintenance holes.
(C) Construction method of the structure to be installed. (D) Construction detail, location, size, design criteria and the purpose of the Facility to be installed.
(7) Cross-section of a typical trench indicating:
(A) Approximate depth of the installed Facility.
(B) Trench-backfill depth, compaction, and layer depths. (C) Pavement section detail (type and depths).
(D) Plans, structural details, and trench cross-section must be signed and stamped by a licensed civil engineer, when legally required. (8) The plan may show the approximate excavation location, provided that the excavation’s exact location is shown on the “as- built” plan. These “as-built” plans shall be submitted prior to the City’s Permit finalization.
(c) If Permittee damages other Facilities during excavation work, Permittee will need a separate Permit to repair the damaged Facility with additional excavation and trenching.
Permittee shall maintain the site and restore the pavement and any affected signage or striping.
(d) For permit expiration, see Section 12.30.100(c)(5), et seq. (e) For notice requirements, see Section 12.30.110, et seq.
12.30.070 – Permits and Encroachment Agreements - City’s Rights and Privileges, Generally
(a) At City’s request, Permittee shall relocate, remove, or abandon the encroachment at their sole expense for any of the following reasons, unless this requirement conflicts with any applicable local Code, state statute, or franchise agreement:
(1) City requires construction, reconstruction, or maintenance work (collectively, “work”) in the ROW that necessitates relocation, removal, or abandonment of an encroachment; or
(2) ROW placement of structures and/or Facilities conflicts with City construction, reconstruction, or maintenance work therein.
(b) When City requires relocation, City Engineer shall give Permittee written notice designating a reasonable time for encroachment relocation or removal, and Permittee shall act accordingly and to City Engineer’s satisfaction. In determining a reasonable time under this Section, City Engineer shall consider the following: nature of the encroachment, urgency of removal need; cost of removal, difficulty of removal; value of the property to the owner, and any other pertinent facts.
(c) City Engineer reserves the right to suspend the Encroachment Permit or Agreement to protect the public from danger and to take such action necessary to correct the danger-posing condition. In the event of suspension, City Engineer shall notify the Permittee and provide opportunity for hearing.
(d) City Engineer may require other reasonable conditions, including installation of Facilities or structures to address accessibility and drainage to protect the public health, safety, and welfare.
(e) City reserves the right to inspect any structure or Facility in ROW
(f) The City Engineer shall approve an Encroachment Permit upon making the following findings, and Permittees shall be subject to the relevant requirements of this Chapter and to all the following conditions, as applicable:
(1) Findings.
(A) Proposed encroachment contains no potential to cause a significant environmental effect(s); nor will it be detrimental to public’s health, safety, and welfare;
(B) Complete application contains all necessary, supporting information;
(C) Applicant made reasonable efforts to erect, construct, use, operate, and/or maintain underground Facilities; provided, however, from and after the effective date of an underground utility district establishment, the Applicant shall erect, construct, use, operate, and maintain its Facilities underground. Where undergrounding is not feasible (excepting any area declared to be an underground utility district), the Applicant has made reasonable efforts to co- locate Facilities on existing poles or other aboveground structures;
(D) Proposed Facilities’ location is the best available option to minimize adverse impacts on the use of the ROW and on adjoining properties;
(E) If application is for Permit renewal, Permittee has complied, and is in compliance with, current Permit and its conditions;
12.30.080 – Permits - Permittee’s and Licensee’s Obligations, Generally (a) The Permittee shall:
(1) Provide accurate, detailed information regarding the location of existing and proposed structures in the ROW at the request of any person contracted to perform work in/on ROW;
(2) Timely correct any maintenance or operational deficiencies;
(3) Produce current, complete, and accurate maps, plans, diagrams, and records pertaining to any structure or Facility installed in the ROW within ten (10) business days of City’s request;
(4) Complete installation or construction of structures and Facilities in the ROW and all construction-related damage to the ROW shall be repaired within two (2) years from the date the Encroachment Permit or Agreement issues. Exception:
City Engineer may grant written extension of the time to complete installation, construction, or repair for good cause;
(5) Operate and use structures and Facilities in the ROW solely and exclusively for the purposes and uses as stated in the application;
(6) Not alter the purpose, use, or operator of the structures and Facilities without transfer approval;
A. Exception: any Landowner Encroachment Agreement shall be binding upon, and inure to the benefit of, Permittee’s successors in interest, heirs, or devisees.
(7) At their own expense, restore ROW to the same or better condition than before installation of at their own expense, restore ROW to the same or better condition than before installation of Facilities or structures upon removal or abandonment of same;
A. Failure to restore ROW may be deemed a violation of this Chapter and a public nuisance subject to City abatement pursuant to any applicable provision of law, including but not limited to RMC Chapter 1.04. (8) During construction, Permittee shall do all the following:
(A) Maintain a copy of Permit issued pursuant to this Chapter at the job site during work periods until project completion and City Engineer approval.
Permit(s) shall be shown to City employees upon request; (B) Provide City Engineer-approved, appropriate traffic warnings, safeguards, and controls;
(C) Provide temporary pedestrian-access Facilities as necessary to comply with local, state and federal law(s), including the Americans with Disabilities Act, and with the written direction of the City Engineer, if any. (D) Maintain all structures, Facilities, and landscaping within the encroachment area in a safe and clean manner and shall observe and enforce all applicable local, State, and Federal safety orders, rules, and regulations at all times. (E) Promptly remove all graffiti on any structure or Facility within the encroachment area.
(F) Notify the City’s Police Department and the City Engineer, and shall promptly repair, any damage to structures or Facilities caused by criminal activity, including, but not limited to, copper theft.
(9) As may be required by California Government Code Section 4216 et seq., Permittee shall contact Underground Service Alert (USA) prior to commencing, and as appropriate during, any Permitted work.
(10) It shall be unlawful for Permittee to erect, construct, use, operate or maintain their Facilities aboveground whenever any area of the City is declared as an underground utility district.
(11) All work done under the Permit shall conform to standard specifications or, in the absence of standard specifications, to recognized standards of design, construction, and practices in placing encroachments in, on, under or above the ROW.
(12) All Facilities shall be constructed, operated, and maintained in the time, place, and manner that cause the least interference with the public’s use of the public
ROW; the City’s management and use of the ROW, and the rights or reasonable convenience of property owners adjoining the ROW.
(13) Comply with all laws, rules, regulations, and Permit conditions and assure that their employees, contractors, and subcontractors do the same.
12.30.090 – Permittees’ Indemnification and Insurance
(a) Where the insurance conditions stated below conflict with franchise provisions or other agreement between a Permittee and the City or state, the franchise’s provisions or other agreement shall control.
(b) To the maximum extent allowed by law, Permittee and Licensee shall indemnify, defend, release, and hold harmless the City, its agents, officers, employees, boards, commissions and contractors (“Indemnitees”) against any and all liabilities, losses, claims, actions, causes of action or demands whatsoever against any of them, including claims for 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’s fees and court costs, arising out of, or connected in any way with, the installation, operation, and maintenance of any Facilities in, or the use of, any ROW 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 caused by Indemnitees’ sole negligence, willful misconduct, or criminal acts.
(c) To the maximum extent allowed by law, Permittee shall indemnify, defend, release, and hold harmless Indemnitees against any claim, action, or proceeding brought to attack, set aside, void or annul the environmental review process for and/or approval of a Permit or Agreement issued pursuant to this Chapter.
(d) Permittee and their contractors who perform ROW work shall secure a policy of broad form commercial general liability insurance naming City as additional insured in an amount not less than two million dollars ($2,000,000.00) per occurrence, or as approved by City’s Risk Manager, unless Permittee is exempt by law from having to procure such insurance before establishing or maintaining any works or Facilities in, on, under or above the ROW. All contractors’ policies secured in compliance with this condition shall be in effect for the duration of contractor’s work in the ROW; all Permittees’ policies secured in compliance with this condition shall be in effect for as long as the encroachment remains in the ROW.
(e) Permittee and their contractors performing work in the ROW shall furnish to the City, and file with the City Clerk a corporate surety bond guaranteeing the faithful performance of the construction of such work and a separate bond to secure claims payments of laborers, mechanics, and material suppliers employed in the construction of such work. The performance bond and payment bond shall each be in an amount equal to one hundred percent (100%) of the total amount of the construction costs of the
work to be performed in the ROW. All bonds shall be issued by a corporate surety admitted in the State of California and shall name the City as a co-obligee.
12.30.100 – Terms and Conditions, Permits Generally
(a) As a condition of the Permit, Permittee shall provide evidence of a regional notification center-issued (e.g., Underground Service Alert, USA) inquiry identification number pursuant to California Government Code Section 4216.
(b) All application materials are incorporated by reference into the Permit; and all representations made within the application are conditions of Permit approval.
(c) Permit duration shall be indicated on the Permit:
(1) All Permits shall include estimated start and completion dates. A Permit is valid from the construction’s start date specified on the approved Permit until the specified completion date.
(2) Permits are not valid if there is failure to: obtain other, required Permits; or to provide required notifications.
(3) No traffic disruptions allowed before 8:00 a.m. and after 4:00 p.m. unless specifically approved.
(4) Some Permits may be valid on specific dates and approved with special conditions:
(A) When work shall occur.
(B) When work shall be completed.
(C) Before which work shall not start.
(5) Permits expire and become void, unless otherwise amended:
(A) Sixty (60) days after the start date if no work has commenced. (B) If work does not proceed diligently, and if delays exceed four (4) working days once the work begins, unless the delay is caused by weather or other circumstances beyond the Permittee’s control.
(C) When the excavation, including trench restoration, is completed; or on the date the Permit specifies as the Permit expiration date. (6) Work proceeds diligently if:
(A) After a project begins, work continues regularly, except on: weekends and holidays; during inclement weather, labor disputes, or any emergency beyond Permittee’s control.
(B) Permittee ensures that all necessary materials and supplies are at hand and ready for use to avoid delaying the excavation and to ensure the prompt restoration of the ROW.
(d) Termination. An Encroachment Permit shall terminate on the date specified therein, or upon abandonment of the Facilities and/or structures constructed pursuant to such Permit. If the Encroachment Permit specifies no date, the Permit shall be considered of indeterminate duration.
(e) Extension. A Permittee may extend a valid Permit by requesting an extension prior to the Permit’s expiration date. Said request shall specify the change of date(s) and detailed reason(s) for the extension. The City Engineer reserves the right to deny the extension request.
(f) Renewal. A renewal application, supporting materials, and fee must be submitted at least sixty (60) days prior to the termination date an Encroachment Permit or the Permit may lapse. A lapsed Permit may be deemed a violation of this Chapter, and the unpermitted encroachment may be considered a public nuisance, subject to City abatement pursuant to any applicable provision of law, including but not limited to RMC Chapter 9 22.
(g) Fees. Permit fees are due at the time the Permit issues. (1) Permit-application processing fees are non-refundable. (2) Prior to Permit issuance, all past due fees, fines, and penalties must be paid. (3) If a Permit violation occurs, the City will not process other application(s) until payment of all fines and penalties and until all Permit conditions have been met.
(4) If a permit application is withdrawn or if an approved permit is cancelled prior to the start of work, the Applicant or Permittee may request a refund of bond funds. To request a refund, submit a written request to the City Engineer, which shall include: The reason for cancellation or withdrawal and the Permit number.
(h) If an account is past due, or not in good standing, a Permit will not issue until the account is brought into good standing with all fees and fines remitted.
12.30.110 – Notice Requirements
(a) All Encroachment Permits and Licenses (Agreements) shall require Notice as follows:
(1) Applications: For applications that propose an aboveground encroachment, City Engineer shall provide 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 300 feet of the proposed encroachment, and to the Neighborhood Council and any homeowners’ association in the neighborhood of the proposed encroachment, advising of the filing of an application for approval of an encroachment into the ROW, describing the proposed encroachment and its location, and providing an opportunity to submit written comments regarding the application to the City Engineer within fifteen (15) days from the date of the letter and prior to the City Engineer’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.
(2) Generally. Excepting necessary emergency repairs, at least forty-eight (48) hours before commencing any work, which will obstruct or impede the flow of vehicular and/or pedestrian traffic, Permittee shall post notifications within the affected area to the satisfaction of City Engineer.
(3) Permitted Work. Permittee shall provide public notifications when excavating in the ROW as follows:
(A) Minor projects lasting longer than forty-eight (48) hours but fewer than fifteen (15) working days shall provide posters sized eleven-by-seventeen inches (11” x 17”) with one (1)-inch minimum-sized letters. Posters shall be displayed at the project’s initial and terminal point(s) and every 300 feet in between.
(B) Posters must contain:
(i) Permittee’s name(s), address(es), and telephone number(s); and
(ii) Project’s start and completion date(s).
(C) For Major Projects lasting fifteen (15) working days or longer, Permittee shall do all the following:
(i) After Permit issuance, and at least five (5), but no more than thirty (30) calendar days, before the anticipated start date of work, Permittee shall mail or deliver written notice to:
(1) Residents and occupants along the affected street;
(2) Schools, churches, and other assembly uses within three hundred (300) feet of the affected street; and
(3) The City’s Engineering Services and Public Works
Department(s)
(ii) At least five (5) calendar days, but not more than fifteen (15) calendar days, prior to starting work: Permittee shall post and maintain notices in accordance with paragraph (3)(a) above. The notices must be sized eleven by seventeen inches (11” x 17”) and shall contain:
(1) Permittee’s name(s), address(es), and telephone
number(s);
(2) Project description;
(3) Project start and completion date(s);
(4) Project contact person’s name, address and twenty-four (24)-hour telephone number.
PART 2 – STREETS AND PAVING
In addition to the requirements in Sections 12.30.020 through 12.30.110, above, the following shall be required for Permits involving Streets and Paving, including but not limited to excavations.
12.30.120 – Newly Constructed or Resurfaced Streets – Prohibition Period (a) Newly constructed or resurfaced streets shall be termed “Prohibition Streets” within this section. Permission to excavate in Prohibition Streets will not be granted for five (5) years following street-overlay completion; an overlay is at least one-half (½)-inch-thick asphalt layer. For streets with Chip Seal, Slurry Seal Coating, or Micro Paving with less than one-half (½)-inch of new pavement, the prohibition period shall be three (3) years.
Permittees shall perform advanced planning to determine alternate methods of necessary repairs to avoid excavating in newly resurfaced streets. Exceptions to the above policy are:
(1) Emergencies endangering life or property.
(2) Interruption of essential utility service.
(3) Work mandated by City, state, or federal law(s).
(4) Building service where no other reasonable means of providing service exists. (5) Situations in which no alternative course of action exists, as determined by the City Engineer in writing and setting forth facts concluding that no alternative exists.
(b) Prohibition Street excavations shall require a waiver. (1) To request a waiver, Permittee shall submit a written request to the City Engineer that includes all the following:
(A) Excavation location;
(B) Description of the work to be performed;
(C) Reason(s) the work was not performed before the street was paved; (D) Reason(s) the work cannot be deferred until after the Prohibition Period;
(E) Reason(s) the work cannot be performed at another location; and (F) Reason(s) that justify the excavation of a Prohibition Street.
(2) Any Prohibition Street excavations will be repaired with full lane-width paving on the street as follows (refer also to Section 12.30.150, Paving):
(A) Overlaid or reconstructed streets: All lanes that are affected shall be ground down two (2) inches and repaved with two (2) inches of asphalt concrete, OR all affected lanes shall be resurfaced pursuant to Section
12.30.150, Paving.
(B) Slurry Sealed, Chip Sealed, or Micro Surfaced streets: All affected lanes shall be resurfaced pursuant to Section 12.30.150, Paving.
(C) If a lateral-cut excavation, a minimum of one (1)-foot on either side of the trench shall be resurfaced. For longitudinal trenches, the entire length shall be resurfaced plus one (1) foot on either end.
(D) Exception: Full lane-width restoration shall not be required if either of the following applies:
(i) The work is not defined as an excavation in Section 12.30.010.
(ii) The work is performed on behalf of a low-income household to bring an owner-occupied, single-family residence into compliance with sanitary sewer regulations at any time other than as part of the residence’s sale. Low-income is defined as eighty percent (80%) of area median family income. This exception’s purpose is to prevent hardship to property owners with limited means, and it shall be interpreted and applied solely to achieve that purpose.
(3) Before a Permit issues for Prohibition Street work, City Engineer will verify that Applicant analyzed all feasible alternatives for necessary repairs using a trenchless method in Prohibition Streets to avoid excavating a newly resurfaced street whenever possible.
12.30.130 – Excavation Material
(a) Pavement shall be cut to a straight, neat, vertical line prior to excavation.
(b) All excavated material shall be removed from the job site within twenty-four (24) hours.
(c) Every trench shall be backfilled or covered by trench plates daily. The City may issue administrative citations or may pursue other legal remedies if trenches are improperly covered or not backfilled in a timely manner. Backfill must meet the requirements specified in Section 12.30.140.
12.30.140 – Backfill
(a) Trenches shall be backfilled with Class 2 Aggregate Base as specified in the Caltrans Standard Specifications Section 26, “Aggregate Base” or suitable material as required by the City’s Standard Plans and Specifications. Backfill compaction shall accord with the City’s Standards.
(b) When undermining occurs, existing pavement shall be removed as required to compact the backfill and to restore pavement.
(c) An independent laboratory shall certify compaction tests. The test results shall be submitted to the City Engineer who may require the Contractor to recompact and retest until the test results show achievement of proper compaction.
12.30.150 – Paving
(a) Trenches shall be paved in accordance with the City’s Standard Plans and Specifications. After the trench has been backfilled, and immediately prior to placing asphalt concrete, the existing asphalt concrete shall be saw cut, or milled according to City’s Standards, to a vertical face. The cut shall be a “T-Cut” according to City’s Standards, and the new asphalt concrete paving shall be butt-joined to the existing asphalt concrete vertical face. Neither new nor existing paving shall be feathered.
Vertical faces shall be tack-coated. In Prohibition Streets, a paving machine or a spreader box shall place the final two (2) inches of asphalt concrete wearing surface.
Asphalt concrete shall be delivered and compacted in accordance with the City’s Standard Plans and Specifications.
For proper placement of the new pavement section, damaged pavement outside of the original trench cut lines shall be removed by cutting in lines perpendicular, or parallel, to original trench lines. No diagonal cuts shall be made. When two damaged pavement areas exit, any undamaged pavement area of three feet or less between the two damaged areas shall also be removed.
(b) Trenches in recently paved Prohibition Streets shall have the entire lane key-cut two (2)-inches deep and repaved with asphalt concrete, unless the Engineer provides written authorization to resurface with a polymer-modified slurry seal instead. When specifying the use of slurry seal instead of asphalt concrete, the Engineer’s authorization shall set forth the reasons for the specification.
(c) Trenches in recently slurry sealed Prohibition Streets shall have the entire lane resurfaced with polymer-modified slurry seal.
(d) Trenches in concrete streets shall be repaved with concrete. New pavement thickness shall equal the existing pavement’s thickness, with a minimum six (6)-inch thickness in the roadway.
(e) Trenches in arterial and collector streets shall be paved with not less than six (6)- inches of asphalt concrete; or to the existing pavement’s thickness, whichever is greater.
(f) Pavement shall be restored within fourteen (14) working days – and within thirty (30) working days for minor excavations – beginning from the time the entire trench is backfilled, absent an excused delay for circumstances beyond the contractor’s control, such as inclement weather.
(g) Asphalt pavement shall be compacted to obtain a ninety-five percent (95%) minimum relative compaction. The asphalt concrete wearing surface shall contain no irregularity exceeding five-sixteenths (5/16) of an inch in ten (10) feet within any direction.
(h) On all streets steel plates shall be used to facilitate traffic flow and to protect the excavation until restoration of finish pavement. Steel plates used to bridge street openings shall be ramped to the match the adjacent pavement’s elevation and be secured against any directional movement. Temporary ramps shall be constructed of asphalt and shall have a gradual, 30:1 slope or flatter using asphalt cutback.
(i) Permittee shall remove all painted USA markings after completion of work. (j) Permittee shall replace and restore all damaged pavement markings and striping.
12.30.160 – Defects
(a) Depressed trench pavement shall be repaired as follows:
(1) Wearing surface defects: remove and restore wearing surface. (2) Major defects: excavate, remove and restore surface and base.
(b) City Inspector will determine the severity of the defect. Work that does not comply with the above requirements shall be rejected, removed, and redone by Permittee to City Engineer’s satisfaction.
(c) Permittee bears responsibility for any roadway defects over and adjacent to the trench that appear after Permittee restores the trench. Permittee shall maintain, repair, and/or reconstruct the excavation site’s affected area until City reconstructs, repaves, or resurfaces the street.
(d) If trench-related failure occurs after City reconstructs, repaves, or resurfaces the street, the Facility’s owner shall be responsible for repair if the failure occurs within one (1) year of trench repair.
(e) When City determines that an excavation, or a defect, is hazardous or constitutes a public nuisance, or poses an imminent threat to public health, safety, or welfare, City Engineer may order Permittee to remedy the condition immediately.
(f) If Permittee refuses or fails to make the needed repairs immediately as ordered by City, then City will make the repairs and:
(1) Permittee will be charged all the actual costs including administration, construction, consultant fees, equipment, inspection, notification, and remediation made necessary by Permittee’s action or inaction.
(A) City’s repair or restoration does not relieve the Permittee from liability for future pavement failures.
(2) If Permittee fails or refuses to pay the restoration cost, City may use any legal means to recover the costs, including but not limited to, property liens and/or court action. In such action, City shall be entitled to recover its reasonable attorneys’ fees and costs.
PART 3 – PRIVATE LANDOWNER ENCROACHMENT(S) INTO UNIMPROVED
PORTIONS OF PUBLIC ROW
12.30.170 – Private Landowner Encroachments
(a) As a general rule, a Landowner has no authorization to construct or place Facilities in the ROW. Under special circumstances, Facilities may be allowed on a ROW provided the Landowner applies for, and enters into, an Encroachment Agreement. No placement or building of Facilities in the ROW adjacent to, or abutting, Landowner’s property shall be allowed without an Encroachment Agreement.
(b) Generally, all provisions of Part(s) 1 and 2 shall apply to this Part 3; except, in the event of conflict, the provisions hereof shall apply to this Part 3.
(c) The Encroachment Agreement shall be in a form approved by the City Attorney; and include all relevant provisions of this Chapter; and be enforceable by the City. As a license, the Encroachment is revocable, pursuant to Part 6 hereof, at any time.
(d) Exemptions.
(1) A Landowner may install minimal, low-height landscaping (e.g., ground cover; native grasses; succulents) in the adjacent or abutting ROW without an Encroachment Agreement.
(2) A Landowner may install curb cuts and driveways if part of a permitted improvement to provide on-site parking. See RMC Chapter 12.36.
12.30.180 – Encroachment Agreement Application
(a) To apply, the Landowner shall send a letter to the City Engineer requesting an Encroachment Agreement. The Landowner’s written communication shall provide justification(s) as to why the proposed encroachment into the ROW creates a unique circumstance necessitating an Encroachment Agreement.
The Landowner’s written letter of application shall include each of the following:
(1) Name, address, and telephone number of the Applicant;
(2) Name, address, and telephone number of the contractor(s) if a contractor will perform any proposed work;
(3) Location, purpose, extent, and nature of the proposed work;
(4) Period of time when the proposed work will be performed;
(5) Traffic and pedestrian control plan for the proposed work’s location;
(6) Certificate of insurance from Applicant’s and contractor’s insurance carrier in a form satisfactory to the City;
(7) Detailed plan(s) showing all Facilities to be located in the ROW, including the material of construction; horizontal and vertical locations with respect to property and grade line(s); existing utilities; and all other pertinent Facilities;
(8) The City shall provide written notice by first class mail to adjacent and abutting owners of properties located within 300 feet of the proposed Encroachment.
(9) Any other specifications, analyses, or materials required by the City Engineer to describe the work; its location in, and its effect on, the ROW, including the mode of operation, maintenance and use;
(10) Encroachment Agreement fee set forth in the City’s Master Fee Schedule.
(11) A deposit sufficient to cover the cost of notice specified by Section
12.30.200, below.
(12) A deposit sufficient to cover costs of preparation and recordation of the Encroachment Agreement as determined by the City Attorney and shall include title review.
(b) When the written application for the Encroachment is submitted to the City, the Owner must also:
(1) Post and maintain notices at proposed Encroachment’s initial and terminal point(s) and every 300 feet in between, unless the length is less than 100 feet, in which case only one (1) notice need be posted at a prominent and readily visible location;
(2) Notices will be sized eleven by seventeen inches (11” x 17”) and include one (1)-inch minimum sized letters containing:
(A) Applicant’s name(s), address(es), and telephone number(s); (B) Description and diagram of proposed Encroachment;
(C) Proposed Encroachment project’s start and completion date(s); (D) Contact person’s name, address and twenty-four (24)-hour telephone number for proposed Encroachment, if different from (2)(A), above; (E) Location and date of public hearing on application; (F) Method by which interested parties may acquire a copy of said application.
(3) The notice(s) shall remain posted in good condition so long as the project is active and until its completion.
(c) In signing the application, the Landowner attests that all information in support of the application is true and correct.
12.30.190 – Findings and Conditions
(a) Applicants shall be subject to the conditions that follow below:
(1) Findings.
(A) Complete application contains all necessary, supporting information.
(B) The Encroachment does not conflict with adopted street improvements or similar plans, or any in development or that can be anticipated.
(C) The Encroachment does not pose a public health or safety hazard as determined by City Engineer.
(D) The Encroachment does not substantially obscure the main property frontage.
(E) The Encroachment does not adversely impact or affect adjacent properties; and/or result in Facilities discordant or inconsistent with other structures placed or erected upon the main property or in the existing ROW; and or make gratuitous use of ROW if the property is not strictly necessary for the proposed use.
(F) The Encroachment has a sufficient setback from street curbs or pavement edges and does not negatively impact the area’s reasonable use. A standard setback should be no fewer than three (3) feet, subject to City Engineer’s determination that the area’s conditions or environment allows otherwise.
(G) The Encroachment conflicts with a specific condition below, but the Encroachment is warranted due to special circumstances specifically identified and addressed in the Encroachment Agreement.
(2) Conditions.
(A) Landowner shall obtain all necessary approvals from City’s Planning, Building, and Engineering Department(s), and any impacted utility companies or video service providers, prior to the placement and construction of Encroachment(s).
(B) Landowner shall provide City with Certificates of General Liability Insurance, subject to the City Attorney’s and City Manager’s satisfaction. Landowner will provide these Certificates to the City annually by the anniversary date.
Landowner must notify City thirty (30) days prior to any cancellation or change in their insurance.
(C) Placement and construction of the Encroachment, if granted, shall be solely at the landowner’s expense. City Engineer shall establish standards by which the Encroachment shall be placed and shall be constructed in conformance with same.
(D) Landowner shall maintain the Encroachment as required by City Engineer and shall remove any and all of the Encroachment without any expense to, or replacement of improvements by City or public utility company upon ninety (90) days’ notice by City, or immediately by City, whenever, in City’s opinion, the condition of the Encroachment is determined to constitute a hazard to safety, health or public welfare or the affected area is needed for municipal or public utility purposes. City Engineer may require a deposit, or other security in a form approved by the City Attorney, for any damage to infrastructure or removal of the Encroachment. Following the removal of the Encroachment, the Landowner shall restore the ROW to a condition approximately the same as the condition of the right of way prior to installation of the encroachments.
(E) Landowner shall remove the curb side parking in front of the Encroachment if the City determines that public health or safety necessitates it.
(F) Landowner shall maintain the area over which said Encroachment is located, in a manner the City Engineer requires, for the life of the Encroachment Agreement.
(G) Landowner shall restore the sidewalks over the Encroachment for the public use when the Encroachment is terminated, modified, deviated from the original Encroachment improvement, or rescinded by City for any reasons.
(H) Landowners shall indemnify, defend, and hold harmless City and all its Councilmembers, employees, officers and agents from all liability, claims, suits, damages, attorney’s fees, costs and expenses resulting from injury or damage to persons or property which may result from the maintenance, placement and/or construction of the Encroachment.
(I) Insurance.
(i) Landowner shall provide certificates of general liability insurance satisfactory to the City Attorney and Risk Manager. Certificates of liability insurance must be provided to the City annually.
(ii) Landowner must notify City thirty (30) days prior to cancellation or change in said insurance. General Liability insurance with minimum limits of $1 million per occurrence and $2 million in the aggregate shall be maintained at all times during the term of the Encroachment Agreement.
(iii) Additional insured: The City, its officers, officials, employees, agents and volunteers are to be named as additional insureds for all liability arising out of ownership, maintenance or use of the part of the premises located within the Encroachment area. An additional insured form CG 2012, or equivalent, is required. Landowner shall provide Certificate of
Insurance naming the City as additional insured with the liability insurance limit(s) of $1 million for each occurrence and $2 million in the aggregate.
(iv) Landowner’s insurance coverage must be primary as it pertains to the City, and the City’s insurance or self-insurance shall not be called upon to contribute to any loss or claim.
(v) Landowner’s insurance will provide a waiver of subrogation in favor of the City by virtue of payment of loss by landowner’s insurance coverage.
(vi) Landowner shall maintain continuous coverage for the life of the Encroachment Agreement. Should Landowner fail to maintain insurance as required, the City may take such action as it deems necessary to protect the City’s interests. Such action may include, but is not limited to, termination of the Encroachment Agreement or other action as the City deems appropriate.
(vii) If the Encroachment Agreement application is approved, the finalized Encroachment Agreement shall be recorded in the office of the County Recorder of Contra Costa County, California. The terms and conditions of the Encroachment Agreement shall be binding on the legal owner(s) of the property and any legal successor(s) or assign(s), including future bona fide purchaser(s).
(J) The Encroachment does not obstruct:
(i) More than nine (9) feet of a one (1)-way street travel lane, which includes space for a four (4)-foot sidewalk on one side;
(ii) More than eighteen (18) feet of two (2)-way street travel lanes, which includes space for a four (4)-foot sidewalk on one side.
12.30.200 – Public Hearing Required
All Encroachment Agreement applications shall be subject to a public hearing by the granting authority, which shall be the City Council.
(a) The City Council shall conduct a public hearing on the application for an Encroachment Agreement. The City Clerk’s Office shall set a time and place for such hearing, which shall be held within thirty (30) days of the City’s receipt of a complete application.
(b) At least ten (10) days before the public hearing, the City shall make available to the public copies of the Encroachment Agreement application in the office of the City Clerk.
(c) Additionally, at least ten (10) days before the hearing, if the hearing date is different than the date on the notice provided in Section 12.30.180, the date on the posted notice shall be corrected.
(d) In addition to the posting of notice, a public hearing notice shall be mailed not fewer than ten (10) days prior to the date of such hearing to all property owners having property, and each residential or other unit, within three hundred (300) feet of the application’s subject property.
(e) After receiving public comment at the hearing, the City Council shall approve, deny, or modify the Encroachment Agreement based on the required findings of Section
12.30.190 within thirty (30) days following the hearing.
(f) Findings for approving an Encroachment Agreement are set forth in Section
12.30.190(a)(1)(A-G).
(g) The City shall promptly notify the Applicant in writing of its decision on the Encroachment Agreement application. The City shall also mail notice of its decision to members of the public who have requested notice.
PART 4 – EASEMENTS
12.30.210 – Easements
(a) In addition to any other method for the creation of an Easement, an Easement may be created by a recorded declaration and covenant of Easement made by an owner of real property to the City, or granted by the City, in accordance with the procedures set forth in this chapter.
(b) Purpose. An Easement may be created pursuant to this chapter for one or more of the following purposes: parking, ingress, egress, emergency access, light and air access, landscaping, open space purposes, or other purposes in accordance with law.
(c) Methods of Creation.
(1) Dedication.
(A) With City’s consent, an irrevocable offer of dedication may be made of real property for any public purpose, including, but not limited to, streets, highways, paths, alleys, including access rights and abutter’s rights, drainage, open space, public utility or other public Easements, parks, or other public places.
(B) Dedication shall be executed, acknowledged, and recorded in the same manner as a conveyance of real property and in a form approved by the City Attorney.
(C) Such offer of dedication, when recorded in the office of the county recorder where the property is located, shall be irrevocable. Any offer must be accepted to be effective pursuant to section (B), above. Once the offer is recorded and irrevocable, it can be accepted by the City Council.
(D) Offer of dedication for street and highway purposes may be terminated and right to accept offer may be abandoned pursuant to the Street Vacation provisions below, in Part 5.
(E) The above procedure shall be alternative to any other procedure authorized by law.
(2) Ordinance.
(A) The City Council may adopt an ordinance pursuant to Government Code Section 65870, et seq., imposing a private covenant for a public Easement as follows:
(1) Recording a covenant of Easement made by an owner of real property to the City.
(2) At the time of the recording, all real property benefited or burdened by the covenant shall be in common ownership.
(3) Covenant shall be effective when recorded and shall act as an easement pursuant to Chapter 3 (commencing with Section 801) of Title 2 of Part 2 of Division 2 of the California Civil Code, except that it shall not merge into any other interest in the real property.
Section 1104 of the Civil Code shall be applicable to conveyance of the affected real property.
(4) A covenant of Easement so recorded shall describe the real property subject to the easement and the real property benefited thereby. The covenant of Easement shall also identify the approval, permit, or designation granted which relied upon or required the covenant.
(5) A covenant executed pursuant to this section shall be enforceable by the City. Covenants shall run with the land and shall be equitable servitudes. The City’s interest may include the streets and highways and other interests abutting the burdened property.
(6) The creation or release of the interests may require review by the Planning Commission for conformity with the General Plan under California Government Code Section 65402.
(7) Ordinance shall provide a procedure for the release of the covenant. The procedure shall require a public hearing by the agency designated by the ordinance for that purpose. The hearing shall be held at the request of any person whether or not that person has title to the real property.
(8) Upon a determination that the restriction of the property is no longer necessary to achieve the City’s land use goals, a release shall be recorded by the City in the county where the restricted property is located.
(9) The ordinance may provide for the imposition of fees to recover the reasonable costs of processing the release from those persons requesting the release pursuant to this section.
PART 5 – STREET VACATIONS
12.30.220 – Street Vacations
(a) Under certain conditions, an existing public Easement may no longer be necessary due to a variety of reasons such as changed conditions, topography, etc. The property owner can seek a vacation of an Easement by submitting an application and paying the applicable fees. The City typically only has Easement-holder status in the ROW of public streets, alleys, or walks, and the adjoining property owners have the underlying fee interest. Applicant should contact a title company to perform a title search of the underlying fee interest of the proposed vacation area prior to submitting application. If the City owns the underlying fee interest, a request for purchase of the City-owned property must be processed through the appropriate City department. (b) Applications may be obtained from City Engineer. Requirements include payment of filing fees as listed in the Master Fee Agreement, signature of the Applicant, a legal description, and a scaled plot plan.
12.30.230 – Summary Vacations
(a) Pursuant to California Streets and Highways Code section 8300, et seq., if the vacation affects a street or highway, the following circumstances will qualify for a summary vacation:
(1) The street or highway has been superseded by relocation, and the vacation would not terminate all access to another person’s property or terminate a public service Easement; or
(2) For a period of five (5) consecutive years, the street or highway has been impassable for vehicular travel, and no public money was expended for maintenance purposes during the same period; or
(3) The street or highway is excess ROW and not required for street or highway purpose(s); or
(4) The portion of a street or highway to be vacated lies within property under one (1) ownership and does not continue through such ownership or end touching property of another.
(b) If the vacation would affect a public service Easement, the following circumstances would qualify for summary vacation:
(1) The Easement has not been used for its dedicated purpose for five (5) consecutive years immediately preceding the proposed vacation; or
(2) The date of dedication or acquisition is fewer than five (5) years, but more than one (1) year, immediately preceding the proposed vacation, and the Easement was not used continuously since that date; or
(3) The Easement has been superseded by relocation, and there are no public facilities located within the Easement.
12.30.240 – General Vacations
If the proposed vacation does not meet any of the criteria in Section 12.30.230 it is a General vacation.
(a) City Council may, on its own initiative, may hold a public hearing on the street vacation whose process shall follow Streets and Highway Code Section 8300, et seq. and as amended from time to time.
(b) City Council’s decision is final and not subject to appeal. City Council may conditionally approve a vacation and thus any conditions must be complied with prior to the vacation becoming effective.
(c) Once the City Council adopts its Resolution of Vacation, which is then recorded with the County, the vacation shall be complete.
PART 6 – VIOLATIONS, REVOCATIONS, OTHER PENALTIES, AND
APPEALS
12.30.250 – Violations and Other Penalties.
Any violation of this Chapter may be enforced as an infraction, misdemeanor, or by any remedy available to City under this Code or state or federal law(s). These provisions are equally applicable to enforcement action(s), including of Permits and Encroachment Agreements. Potential enforcement measures include but are not limited to:
(a) Fine. Whenever a City Inspector finds that anyone or any entity subject to this Chapter is placing, or has placed, an encroachment in the ROW without the appropriate Permit, the City Inspector will require (1) stop work, if construction is ongoing; (2) application for a Permit; and (3) payment of Permit fee and a fine equal to same;
(b) Violations and Penalties.
(1) Working without a Permit may result in an Administrative Citation, a Stop Work Order, and a mandate to apply and pay for the required Permit. (2) The following violations may result in an administrative citation:
(A) General.
(i) Failure to abide by the requirements of Chapter 12.30. (ii) Violation of any Permit condition(s).
(iii) Failure apply for and obtain a Permit.
(iv) Failure to maintain a Permit on-site.
(v) Improper public notice.
(B) Excavation (Streets and Paving).
(i) Failure to hold a pre-construction meeting in advance of a “Major Project.”
(ii) Improper site protection (e.g., improper plating, path of travel, barricading, etc.)
(iii) Improper trench trimming.
(iv) Trenches left open after allowed work hours when not backfilled and covered.
(v) Failure to comply with trench restoration requirements. (vi) Improper housekeeping (e.g., failure to remove spoil, dirty site, no sweeping, etc.).
(vii) Failure to provide notice will result in an Administrative Citation and a Stop Work Order.
(viii) Any other excavation code violations.
(c) Suspension.
When City Engineer finds that protection of public health or safety from imminent danger necessitates suspension of Encroachment Permit, City Engineer may suspend the Permit immediately, pending a hearing for remedial action or suspension.
12.30.260 – Procedures for Suspension or Revocation.
(a) Within three (3) working days of the emergency suspension or revocation, City Engineer will give Permittee written notice of same. Notice shall be delivered to Permittee’s last known address by personal service or by first-class mail, postage prepaid.
(b) Within fifteen (15) days following service of written notice for either suspension or revocation, Permittee may file a request for hearing with the City Manager. City Manager shall schedule a hearing on the suspension or revocation within five (5) working days of receipt of a request for hearing.
(c) After the hearing, if City Manager finds that public health or safety requires correction or alteration of any condition caused by, or existing on the site of, the encroachment, City Manager shall issue one or more of the following:
(1) Order to correct any noncompliance;
(2) Revocation of the encroachment Permit;
(3) Continued suspension of the Encroachment Permit, until such time as the
dangerous condition is corrected;
(4) Modification or reinstatement of the Encroachment Permit, with necessary conditions to prevent public harm.
(d) City Manager, within ten (10) days after the close of the hearing, shall render a written opinion, stating the findings upon which the decision is based, and the action taken. City Manager’s decision may be appealed to the City Council by filing a written appeal with the City Clerk within ten (10) business days of the date notice of the decision is mailed to the Permittee.
12.30.270 – Revocation.
(a) City Engineer may recommend that City Manager revoke a Permit or Encroachment Agreement when:
(1) Permittee has violated any provision of this Code or any Permit condition; or (2) Permittee fails to pay any required fees or to post or maintain any bond or insurance this Chapter requires; or
(3) Encroachment for which the Permit was granted adversely affects safety, capacity or integrity of City’s ROW or increases City’s liability exposure; or (4) Encroachment causes City to incur substantial additional maintenance costs; or
(E) Permit application contained material misrepresentations, omissions, or inaccuracies.
12.30.280 – Appeals.
(a) Decisions on Permits and Encroachment Agreements.
(1) Denial. City Engineer shall put their decision to grant or to deny a Permit in writing and deliver it to Applicant within five (5) calendar days following the decision. Notice of a decision to deny the Permit shall enumerate the reason(s) for denial.
(2) Approval. City shall post a notice of decision to approve a Permit at its Engineering Services’ public counter beginning on the date of the decision. The approval notice shall be posted at the site of the encroachment for no fewer than ten (10) calendar days beginning within five (5) calendar days from the date of City Engineer’s the decision. This cumulative period of 10 days shall be known as the “appeal period.”
(b) Appeal Period.
No Permit shall be issued until after the ten (10)-day appeal period expires. If City does not receive a timely filed appeal, it may issue the Permit after the appeal period expires.
If City receives a timely filed appeal, it shall not issue a permit until the appeal’s final resolution.
12.30.290 – Appeals and Hearings.
(a) Any person aggrieved by City Engineer’s decision may appeal by submitting a written appeal to City Clerk within fifteen (15) days of the date of the decision. Appeal fee shall be remitted as listed in the City's Master Fee Schedule at the time of appeal submission.
(b) City Council shall hold a hearing on the appeal at a regularly scheduled meeting not fewer than fourteen (14) days and not greater than forty-five (45) days after City receives the appeal. City shall provide appellant at least ten (10) days’ written notice of the hearing’s date and time. City Council’s decision on the appeal shall be final and binding.
Chapter 12.29 STREET OPENING AND PAVEMENT RESTORATION
REGULATIONS
12.29.010 - Purpose.
The public right-of-way is a unique public resource held in trust for the benefit of the public. This physically limited resource requires proper management to maximize its efficiency and minimize the costs to taxpayers, to protect against foreclosure of future economic expansion because of premature exhaustion of the public right-of-way, and to minimize the inconvenience to and negative effects on the public from use of the public right-of-way by contractors and utility companies.
To achieve the purpose of this chapter, the City of Richmond shall endeavor to coordinate its Capital Improvement Programs with those of utility companies and franchisees with facilities in, on, under or above the public right-of-way. Information about any planned work in the right-of-way shall be shared at the earliest possible time.
Utility owners and franchisees are encouraged to coordinate their street excavations so that all work is done simultaneously and the street is not excavated more than once within a twelve-month period.
(Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.020 - Definitions.
As used in this chapter:
"Agency" means the Richmond Community Redevelopment Agency, a public body corporate and politic.
"Arterial street" means any street with a traffic volume of 7,500 to 15,000 vehicles per day, including Barrett Avenue, Castro Ranch Road, Garrard Boulevard, Harbour Way, MacDonald Avenue, Pennsylvania Avenue, Potrero Avenue, Rheem Avenue, Seventh Street, Solano Avenue, and Thirty-Seventh Street.
"Asphalt concrete" or "AC" means blend of aggregate and asphalt binder meeting the specifications set forth in the City of Richmond Standard Specifications Section 39, "Asphalt Concrete" and the Caltrans Standard Specifications Section 39, "Asphalt Concrete."
"Chip seal" (see the definition of "Slurry seal").
"City" means the City of Richmond, a charter city and a municipal corporation duly organized and validly existing under the laws of the State of California, and all departments, divisions, and offices thereof.
"Encroach" means constructing or placing temporary or permanent structures, improvements, facilities or materials in, on, over, or under any public right-of-way or using any right-of-way so as to prevent, obstruct, or interfere with the normal use of that way, including but not limited to the performance of any of the following acts:
(1) Excavating or disturbing the public right-of-way;
(2) Erecting or maintaining any post, sign, pole, fence, guard-rail, wall, pipe, conduit, cable, wire, communication service equipment, or other facility or structure on, over, or under a public right-of-way;
(3) Planting any tree, shrub, grass, or other growing thing within the public right- of-way;
(4) Placing or leaving on the public right-of-way any rubbish, brush, earth, or material;
(5) Constructing, placing, or maintaining on, over, under, or within a public right- of-way any pathway, sidewalk, driveway, or other surfacing; any culvert or other surface drainage or subsurface drainage facility; or any pipe, conduit, wire, communication service equipment or facility, or cable;
(6) Constructing, placing, planting, or maintaining any structure, embankment, excavation, tree, or other object adjacent to the public right-of-way which causes or may cause an encroachment.
"Engineer" means the City Engineer, his or her designee. "Excavation" means any trench cuts within the street right-of-way to access or install a utility line or any related facility in excess of four (4) square feet or four (4) feet long, whichever is smaller. All such excavations shall require an encroachment permit. "Excavator" means the applicant/permittee to whom an encroachment permit is issued for the purposes of excavation.
"Facility" means any fiberoptic, coaxial, or copper cable; communication service equipment; telephone, telecommunications, electric or other wire, line or equipment; utility structure; oil, gas, or other pipeline; duct; conduit; cabinet; tunnel; vault; drain;
manhole; splice box; surface location marker; pole; subsurface tiebacks; soil nails; stairs; access ramps; subsurface foundations; landscape features, including curbs around planter areas; planter boxes; clocks; bus shelters; phone booths; bike racks; fencing; retaining walls; benches; stockpiles; building materials; and other appurtenances or tangible things located in, upon, above, beneath, or across any public right-of-way.
"Major arterial street" means any street with a traffic volume of more than 15,000 vehicles per day, including Carlson Boulevard, Central Avenue, Cutting Boulevard, Hilltop Drive, May Road, Robert H. Miller Drive, San Pablo Avenue, San Pablo Dam Road, Thirteenth Street, Twenty-Second Street, and Twenty-Third Street. "Major defects" means any defects greater than the deficiency tolerances specified in the City of Richmond Standard Plans and Details; the Caltrans Standard Specifications and Details; or Individual Contract Plans and Specifications. "Micro paving" (see the definition of "Slurry seal").
"Micro surfacing" (see the definition of "Slurry seal"). "Permittee" means any person, contractor, utility or special district that has been issued a permit pursuant to this chapter, including any lawful successor, transferee, or assignee of the original permittee. All obligations, responsibilities, and other requirements of the permittee shall be binding on successors in interest of the original permittee.
"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 Richmond, the Richmond Community Redevelopment Agency, or the City's or Agency's officers, employees, or agents.
"Prohibition street" means streets that have been reconstructed or resurfaced within the past three to five years (see Section 12.29.030.A, below). "Public right-of-way" means the area in, upon, above, beneath, or across any land or interest which by deed, conveyance, agreement, easement, dedication, usage, or process of law is reserved for or dedicated to the use of the general public for travel, and includes any public street, road, highway, freeway, bridge, lane, court, alley, boulevard, sidewalk, median, parkway, or emergency vehicle easement. "Public street" means the full width of the surfaced or travel portion, including shoulders, of any road, street, path, lane, or alley dedicated to, reserved for, or used by or for the general public when those roads, streets, paths, lanes, and alleys have been accepted as and declared to be part of the City system of public streets, except highways forming a part of the State highway system.
"Slurry seal" means a mixture of polymer modified asphalt emulsion, mineral aggregate, mineral filler, water, and other additives, properly proportioned, mixed, and spread in accordance with the City of Richmond Standard Plans and Details and the Caltrans Standard Specifications; usually less than ½ inches in thickness. "Special district" means any agency of the State for the local performance of governmental or proprietary functions within limited boundaries, and includes a county service area, a maintenance district or area, an improvement district or improvement zone, or any other zone or area within which a property tax or assessment will be levied to pay for a service or improvement benefitting that area. "Street overlay" means one or more courses of asphalt construction on an existing pavement; usually greater than ½ inches in thickness; generally includes an asphalt leveling course to correct the contour of the old pavement. "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.
"Underground utility district" has the meaning set forth in Chapter 12.48 of the Richmond Municipal Code.
"Utility" means any person or entity providing electricity, gas, telephone, telecommunications, water, or other services to customers, and which pursuant to State law or local franchise is entitled to install its facilities in the public right-of-way. "Wearing surface defects" mean the defects in the surface of a roadway that is in direct contact with traffic and that resists the resulting abrading, crushing, or other disintegrating action.
(Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.030 - Prohibition period.
(a) Newly constructed or resurfaced streets shall be termed "prohibition streets" within this section. Permission to excavate in prohibition streets will not be granted for five (5) years after the completion of street overlays. An overlay consists of at least a ½-inch thick layer of asphalt. For those streets with chip seal, slurry seal coating, or micro paving with less than ½ inch of new pavement, the prohibition period shall be for three (3) years. Utilities shall plan well enough in advance to determine alternate methods of making necessary repairs to avoid excavating in newly resurfaced streets. Exceptions to the above policy are as follows:
(1) Emergencies that endanger life or property.
(2) Interruption of essential utility service.
(3) Work that is mandated by City, State, or Federal law.
(4) Service for buildings where no other reasonable means of providing service exists.
(5) Situations in which no alternative course of action exists, as determined by the engineer in writing setting forth the facts giving rise to the conclusion that no alternative exists.
(b) To excavate in a prohibition street a waiver must be obtained. (1) To request a waiver, the applicant must submit a written request to the engineer. The request must include:
(A) The location of the excavation.
(B) Description of the work to be performed.
(C) The reason(s) the work was not performed before the street was paved.
(D) The reason(s) the work cannot be deferred until after the prohibition period.
(E) The reason(s) the work cannot be performed at another location. (F) The reason(s) it is justified to excavate the prohibition street. paid and all permit conditions are met.
(f) If an account is past due or not in good standings, a permit cannot be issued until the account is brought into good standing. To bring the account to good standing, all fees and fines must be paid.
(g) As a condition of the permit to excavate, the applicant shall provide evidence of an inquiry identification number issued by a regional notification center (Underground Service Alert, USA) pursuant to Section 4216, California Government Code. (h) Permittees and excavators shall pay close attention to the location and alignment of all USA markings while performing their work.
USA Codes are:
Electric Red
Gas-Oil Yellow
Communication-CATV Orange
Water Blue
Sewer Green
Temporary Survey Markings Pink
Proposed Excavation White
(i) If an excavator damages other facilities during their excavation work the excavator will need an additional street cut permit if additional excavation and trenches are needed to repair the damaged facility. The original permittee shall maintain the site and restore the pavement and any affected signage or striping. (j) Except in an emergency, street cut permits shall be taken out in advance of excavation work. An emergency is considered to exist only when life or property is endangered or when an essential utility service is or may be interrupted during weekends, holidays, or between 5:00 p.m. and 8:00 a.m. of normal working days. (k) In the event of an emergency, the excavator shall notify the City of Richmond and apply for a street cut permit for "emergency work" within four (4) hours after the City of Richmond's office opens.
(l) Pre-construction meeting:
(1) A pre-construction meeting shall be held for all projects that are scheduled to take longer than 15 working days to complete.
(2) The owner, contractor, any other agency that is involved and the City of Richmond shall attend this meeting.
(3) For projects that are supposed to be completed within 15 days, and are not completed within the allowed time, the City may issue administrative citations if a pre-construction meeting was not held.
(4) The traffic control plan shall be approved prior to the pre-construction meeting.
(m) Permit duration shall be indicated on the permit:
(1) All permits shall include estimated start and completion dates. A permit is valid from the construction start date specified on the approved permit until the specified completion date.
(2) Excavation permits are not valid if other required permits are not obtained or required notifications are not given.
(3) No disruption of traffic is allowed after 4:00 p.m. and before 8:00 a.m. unless specifically approved for these hours.
(4) Some permits may be valid on specific dates. They may be approved with special conditions specifying dates:
(A) When work shall be done.
(B) When work shall be completed.
(C) Before which work shall not start.
(5) Permits expire and become void, unless otherwise amended:
(A) Sixty (60) days after the start date, if no work has begun. (B) If the work is not diligently proceeding and there are delays of more than four (4) working days after the work has started, unless the delays are caused by weather or other circumstances beyond the permittee's control.
(C) When the excavation, including the trench restoration, is completed or on the date specified on the permit as the expiration date. (6) The work is determined to be proceeding diligently if:
(A) After a project begins, work continues on a regular basis, except for weekends, holidays, inclement weather, labor disputes, or any emergency beyond the control of the permittee.
(B) The permittee ensures that all necessary materials and supplies are on hand and ready for use so as not to delay the excavation and the prompt restoration of the public right-of-way.
(n) A valid permit may be extended be requesting an extension prior to the expiration date by specifying the dates that need to be changed and explaining the reason for the extension. The engineer reserves the right to deny a request for extension. (o) If an application has been withdrawn or an approved permit is cancelled prior to the start of work the applicant or permittee may request a refund of the bond funds; all other permit fees are non-refundable.
(1) To request a refund, submit a written request to the engineer. (2) The request shall include:
(A) The reason for cancellation or withdrawal.
(B) The permit number.
(p) By accepting a street cut and/or encroachment permit, the permittee and the owner of the facility(ies) for which the permit has been issued agree:
(1) To follow all laws, rules, regulations, and permit conditions. (2) To assure that their employees, contractors, and subcontractors, comply with all laws rules, regulations, and permit conditions.
(3) To indemnify the City of Richmond against all claims for personal injury or property damage that may arise in connection with the work.
(q) The street cut and/or encroachment permit shall be available during work periods at the excavation site, until the project is completed and approved by the engineer.
Permit(s) shall be shown to the City of Richmond employees upon request. (r) The excavator shall provide public notifications when excavating in the public right- of-way.
(1) Minor projects lasting longer than 48 hours but less than 15 working days shall provide 11″ × 17″ posters with 1-inch minimum letters at the beginning and end of the project and every 300 feet between the beginning and the end of the project. Notes must contain:
(A) The names, address, and telephone number of the owner and the permittee.
(B) The start and completion dates of the project.
(2) Major projects lasting 15 working days or longer, the excavator shall:
(A) After the permit has been issued and at least five but no more than 30 calendar days before the anticipated start date of work, mail or deliver written notice to:
(i) Residents and occupants along the affected street.
(ii) Schools, churches, and other assembly uses within 300 feet of the affected street.
(iii) The City of Richmond Engineering Services and Public Works Departments.
(B) At least five calendar days but not more than 15 calendar days prior to starting work, post and maintain 11″ × 17″ notices in accordance with paragraph (r)(1) above. The notices must contain:
(i) The name, address, and telephone number of the owner and the permittee.
(ii) A description of the project.
(iii) The start and completion dates of the project.
(iv) The name, address and 24-hour telephone number of a contact person.
(Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.050 - Excavation material.
(a) Pavement shall be cut to a straight, neat, vertical line prior to excavation.
(b) All excavated material shall be removed from the job site within twenty-four (24) hours.
(c) Every trench must be backfilled or covered by trench plates the same day. The City may issue administrative citations or pursue any other legal remedy if the trenches are not properly covered or backfilled in a timely manner. Backfill must meet the requirements specified in Section 12.29.060 of this chapter. (Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.060 - Backfill.
(a) Trenches shall be backfilled with Class 2 Aggregate Base as specified in the Caltrans Standard Specifications Section 26, "Aggregate Base" or suitable material as required by the City of Richmond Standard Plans and Specifications. Compaction of backfill shall be in accordance with the City of Richmond Standards. (b) When undermining occurs, remove existing pavement as required to compact the backfill and restore the pavement.
(c) Compaction tests shall be certified by an independent laboratory and submitted to the engineer, who may require the contractor to recompact and retest until the test results show that proper compaction is being achieved.
(Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.070 - Paving.
(a) Trenches shall be paved in accordance with the City of Richmond Standard Plans and Specifications. After the trench has been backfilled, and immediately prior to placing asphalt concrete, the existing asphalt concrete shall be saw cut, or milled according to City of Richmond Standards, to a vertical face. The cut shall be a "T-Cut" according to City of Richmond Standards and the new asphalt concrete paving shall be butt joined to the existing asphalt concrete vertical face. No feathering of new paving to existing paving is allowed. The vertical faces shall be tack coated. In prohibition streets, placement of the final two (2) inches of asphalt concrete wearing surface shall be done by a paving machine or spreader box. Asphalt concrete shall be delivered and compacted in accordance with the City of Richmond Standard Plans and Specifications.
To allow for proper placement of the new pavement section, damaged pavement outside of the original trench cut lines shall be removed by cutting in lines perpendicular to or parallel to the original trench lines. No diagonal cuts are to be made. Undamaged pavement of three (3) feet or less between two damaged areas shall also be removed. (b) For trenches in recently paved prohibition streets, the entire lane shall be key-cut two (2) inches deep, and repaved with asphalt concrete unless the engineer gives written authorization to resurface with a polymer modified slurry seal instead.
Authorization from the engineer to use slurry seal instead of asphalt concrete shall set forth the reasons for the authorization.
(c) For trenches in recently slurry sealed prohibition streets, the entire lane shall be resurfaced with polymer modified slurry seal.
(d) Trenches in concrete streets shall be repaved with concrete. The thickness of the new pavement shall be equal to the thickness of the existing pavement with the minimum thickness to be six (6) inches in the roadway.
(e) Trenches in arterial and collector streets shall be paved with not less than six (6) inches asphalt concrete or match the existing pavement thickness (whichever is greater).
(f) Pavement shall be restored within fourteen (14) working days from the time the entire trench is backfilled, unless delay is excused due to circumstances beyond the contractor's control, such as inclement weather. For minor excavations such as service installations, the pavement shall be restored with in thirty (30) working days from the time the entire trench is backfilled, unless delay is excused due to circumstances beyond the contractor's control, such as inclement weather. (g) Asphalt pavement shall be compacted to obtain a minimum of ninety-five percent (95%) relative compaction. The asphalt concrete wearing surface shall have no irregularity greater than five-sixteenths of an inch ( 5/16 ″) in ten feet (10′) in any direction.
(h) On all streets steel plates shall be used to facilitate traffic flow and to protect the excavation until finish pavement is restored. Steel plates used to bridge a street opening shall be ramped to the elevation on the adjacent pavement and secured against movement in any direction. Temporary ramps shall be constructed of asphalt and shall have a gradual 30:1 slope or flatter using asphalt cutback. (i) All painted USA markings shall be removed by the permittee after the work has been completed.
(j) All damaged pavement markings and striping shall be replaced and restored by the permittee.
(Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.080 - Defects.
(a) Depressed trench pavement shall be repaired as follows:
(1) Wearing surface defects—Remove and restore wearing surface. (2) Major defects—Excavate, remove and restore surface and base The permit inspector will determine the severity of the defect.
(b) Work not in compliance with the above requirements shall be rejected, removed, and redone by the permittee to the satisfaction of the engineer. (c) The owner of the facility/utility company is responsible for any roadway defects in the area over and adjacent to the trench appearing after the permittee restores the trench.
The owner is responsible for maintenance, repair or reconstruction of the excavation site's affected area until the City of Richmond reconstructs, repaves, or resurfaces the street.
(d) If there is a trench-related failure after the City of Richmond reconstructs, repaves, or resurfaces the street, the owner of the facility/utility company is responsible for its repair if the failure occurs within 1 year of a trench repair. (e) When the City of Richmond determines that an excavation or a defect is hazardous or constitutes a public nuisance or other imminent threat to public health, safety, or welfare, the engineer may order the responsible party to remedy the condition immediately.
If the responsible party refuses or fails to make the needed repairs immediately, the City of Richmond will make the repairs and:
(1) The responsible party will be charged all the actual costs including administration, construction, consultant fees, equipment, inspection, notification, and remediation made necessary by the action or inaction of the permittee. (2) The repair or restoration by the City of Richmond does not relieve the responsible party from liability for future pavement failures. (3) If the responsible party fails or refuses to pay the restoration cost, the City may use any legal means to recover the costs, including but not limited to property liens and/or court action.
(Ord. No. 39-09 N.S., § I, 12-1-2009)
12.29.090 - Violations—Revocation and other penalties.
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 this Code or under State law. Potential enforcement measures include but are not limited to the following:
(a) Fine. If a City inspector finds that a contractor has committed any of the following violations then the contractor may be required to pay a fine or penalty for his or her actions. The penalties for violations are listed in the City's Master Fee Schedule.
VIOLATIONS PENALTIES
(Not to exceed amount shown)
1. Working without a permit. Administrative citation, stop work, and apply and pay for the required permit
2. Excavation without providing public
notice.
Administrative citation and stop work
3. Beginning a "Major Project" without
having a pre-construction meeting.
Administrative citation
4. Violation of permit conditions. Administrative citation
5. Improper site protection: improper
plating, path of travel, barricading, etc.
Administrative citation
6. No permit on site. Administrative citation
Administrative citation
7. Improper trimming of trench. Administrative citation
8. Any trench left open after the allowed
work hours that is not backfilled and
covered.
Administrative citation
9. Improper public notice: no notice sign,
wrong information on sign/notice.
Administrative citation
10. Non-compliance with trench
restoration requirements.
Administrative citation
11. Improper housekeeping: failure to
remove spoil, dirty site, no sweeping, etc.
Administrative citation
12. Other excavation code violations. Administrative citation
The above fines, when assessed, shall be deducted from the cash deposit required by
12.29.040(e)(1) of this section or will be paid by the applicant if there is not a cash deposit.
(b) Suspension. Whenever the engineer finds that a suspension of an encroachment permit is necessary to protect the public health or safety from imminent danger, the engineer may immediately suspend any such permit pending a hearing for remedial action or revocation. The engineer shall, within three (3) working days of the emergency suspension, give a written notice of such suspension to the permittee, by personal service or 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 regarding the suspension. The City Manager or his or her designee shall schedule a hearing on the suspension within five (5) working days of receipt of a request for hearing. If the City Manager or his or her 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 or she shall issue one or more of the following:
(1) An order to correct any particular noncompliance.
(2) A revocation of the encroachment permit.
(3) A continued suspension of the encroachment permit, until such time as the dangerous condition is corrected.
(4) A modification or reinstatement of the encroachment permit, with conditions as necessary to prevent harm to the public.
The City Manager or his or her 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 or her designee shall be final, except a decision to revoke the permit which may be appealed to the City Council in accordance with Section 12.30.060.B of this Code.
(c) Revocation. The engineer may recommend that the City Manager revoke a permit where he or she finds that:
(1) The permittee has violated any provision of this Code or conditions 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 public 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.
The engineer shall give the permittee at least ten (10) days' written notice of a hearing before the City Manager or his or her designee on the proposed revocation of a permit issued pursuant to this chapter, setting forth the grounds for such action. If, after reviewing all evidence presented before or at the public hearing, the City Manager or his or her designee makes any one of the five findings set forth above, he or she may revoke the permit. The City Manager or his or her designee shall, within ten (10) days after the close 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 or her designee may be appealed to the City Council in accordance with Section
12.30.060.B of this Code.
(Ord. No. 39-09 N.S., § I, 12-1-2009)
SECTION 2.
SEVERABILITY CLAUSE If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance is for any reason held to be unconstitutional or invalid, such a decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase of this Ordinance irrespective of the unconstitutionality or invalidity of any section, subsection, subdivision, paragraph, sentence, clause, or phrase SECTION 3.
This Ordinance shall be effective thirty (30) days after passage and adoption. First introduced at a regular meeting of the City Council of the City of Richmond held ___________, 2022, and finally passed and adopted at a regular meeting held __________, 2022 by the following vote:
AYES:
NOES:
ABSTENTIONS:
ABSENT:
_________________________________________
CLERK OF THE CITY OF RICHMOND (SEAL)
Approved:
___________________________
Mayor
Approved as to form:
____________________________
City Attorney
Chapter 12.30 – ENCROACHMENTS AND EASEMENTS IN THE PUBLIC RIGHTS OF WAY
12.30.010 – PURPOSE
The Public Rights-of-Way are unique, physically limited public resources held in trust for the public’s benefit, and they require proper management to maximize their efficiency and minimize the taxpayers’ costs; to protect against foreclosure of future economic expansion due to premature exhaustion of these resources; and to minimize the inconvenience to, and negative effects on, the public from use of these rights-of-way by individuals, contractors, utility companies, video service providers, utilities, special districts, et al.
To achieve this Chapter’s purpose, the City shall endeavor to coordinate its Capital Improvement Programs with those of Utility Companies and Franchisees with Facilities in, on, under, or above the Public Rights-of-Way. Information about planned work in the Right-of-Way shall be communicated as early in the process as possible.
Utility owners and franchisees should strive to coordinate street excavations to allow for simultaneous work and to prevent a street from multiple excavations within a twelve (12)-month period.
PART 1 - GENERAL
12.30.020 - Definitions
As used in this chapter:
“Agreement” means “Encroachment Agreement,” as defined below.
“Applicant” means any person, firm, partnership, association, corporation, company, entity, or organization who proposes to encroach upon a public place, right of way, sidewalk, or street and who has applied for a permit for the proposed encroachment, pursuant to the provisions of this chapter.
“Arterial street” means any street with a traffic volume of 7,500 to 15,000 vehicles per day, including Barrett Avenue, Castro Ranch Road, Garrard Boulevard, Harbor Way, Macdonald Avenue, Pennsylvania Avenue, Potrero Avenue, Rheem Avenue, Seventh Street, Solano Avenue and Thirty-Seventh Street.
“Asphalt concrete” or “AC” means blend of aggregate and asphalt binder meeting the specifications set forth in the City of Richmond Standard Specifications Section 39, “Asphalt Concrete” and the Caltrans Standard Specifications Section 39, “Asphalt Concrete.”
“Chip Seal” (see the definition of “Slurry Seal”).
“City Projects” mean any city-funded construction or reconstruction, including but not limited to, public works projects and community facilities (e.g. libraries, community centers, et al.), excluding public/private partnerships.
“Communications service equipment” and “communications service facilities” mean the equipment and Facilities used by a video service provider to provide cable or video service.
“Easement” or “Easements” mean interest(s) in land of another entitling easement owner to limited use or enjoyment of other’s land, evidenced by an instrument recorded on and burdening the landowner’s title, and as provided in California Civil Code Section § 887.010, et seq.
“Encroach” or “Encroaching” means constructing or placing temporary or permanent structures, improvements, Facilities or materials in, on, over, or under any ROW or using any ROW so as to prevent, obstruct, or interfere with the normal use of that way. The right to encroach is in the nature of a license and is revocable by the City at any time as provided herein. Encroachment includes, but is not limited to, the performance of any of the following acts:
(a) Excavating or disturbing the ROW;
(b) Erecting or maintaining any post, sign, pole, fence, guardrail, wall, pipe, conduit, cable, wire, communication service equipment, or other Facility or structure on, over, or under a ROW;
(c) Planting any tree, shrub, grass or other growing thing within the ROW;
(d) Placing or leaving on the ROW any rubbish, brush, earth or other material;
(e) Constructing, placing, or maintaining on, over, under or within a ROW any pathway, sidewalk, driveway, or other surfacing; any culvert or other surface drainage or subsurface drainage Facility; or any pipe, conduit, wire, communication service equipment or Facilities, or cable;
(f) Constructing, placing, planting, or maintaining any structure, embankment, excavation, tree, or other object adjacent to the ROW, which causes, or may cause, an encroachment.
“Encroachment Agreement” means a written, contractual license agreement between the City and a private landowner regarding the terms and conditions of a Facility in the ROW; and, which agreement is recorded on the property’s title and binding on its successors thereafter unless revoked by the City.
“Encroachment” means the act of encroaching, as defined above.
“Excavation” means any trench cuts within the street ROW to access or install a utility line or any related Facility in excess of four (4) square feet or four (4) feet long, whichever is smaller. All such excavations shall require an Encroachment Permit.
“Facility” or “Facilities” mean any fiber-optic, co-axial, or copper cable; communication service equipment; telephone, telecommunications, electric or other wire, line or equipment; utility structure; oil, gas, or other pipeline; duct; conduit; cabinet; tunnel; vault; drain; manhole; splice box; surface location marker; pole; subsurface tiebacks; soil nails; stairs; access ramps; subsurface foundations; landscape features, including but not limited to: curbs around planter areas; planter boxes; clocks; bus shelters; phone booths; bike racks; fencing; retaining walls; benches; stockpiles; building materials; and other appurtenances or tangible things located in, upon, above, beneath, or across any ROW.
“Landowner” means any real-property owner abutting or adjacent to the ROW as defined herein.
“Licensee” means the “Permittee” under the Permit; or could be the person with the right to Encroach under an “Encroachment Agreement;” or the person with pre-existing or other Encroachment right(s) hereunder.
“Major arterial street” means any street with a traffic volume of more than 15,000 vehicles per day, including Carlson Boulevard, Central Avenue, Cutting Boulevard, Hilltop Drive, May Road, Richmond Parkway, Robert H. Miller Drive, San Pablo Avenue, San Pablo Dam Road, Thirteenth Street, Twenty-Second Street, and Twenty-Third Street.
“Major defects” means any defects greater than the deficiency tolerances specified in the City of Richmond Standard Plans and Details; the Caltrans Standard Specifications and Details; or Individual Contract Plans and Specifications.
“Micro Paving” (see “Slurry Seal” definition).
“Micro Surfacing” (see “Slurry Seal” definition).
“Parklet” is the use of existing parking spaces in the public street as non-exclusive outdoor dining spaces for restaurants on abutting properties. See RMC Chapter
14.46. “Permit” means any Permit referenced in, or required by, this Chapter.
“Permittee” or “Licensee” means any means any person, firm, partnership, association, corporation, company, entity, or organization who proposes to encroach upon a public place, right of way, sidewalk, or street, and who has been issued a permit for the proposed encroachment pursuant to the provisions of this Chapter, including any lawful successor, transferee, or assignee of the original Permittee.
“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 or its officers, employees, or agents.
“Prohibition Street” means streets that have been reconstructed or resurfaced within the past three to five years (see Section 12.30.140, below).
“Public Right-of-Way” or “ROW” means the area in, upon, above, beneath, or across any land or interest therein which by deed, conveyance, agreement, easement, dedication, usage, or process of law is reserved for, or dedicated to, the use of the general public for travel, and includes any public street, road, highway, freeway, bridge, lane, court, alley, boulevard, sidewalk, median, parkway or emergency vehicle easement.
“Public Street” means the full width of the surfaced or traveled portion, including shoulders, of any road, street, path, lane or alley dedicated to, reserved for, or used by or for the general public when those roads, streets, paths, lanes and alleys have been accepted as, and declared to be part of, the City system of public streets, except highways forming a part of the State highway system.
“Slurry Seal” means a mixture of polymer modified asphalt emulsion, mineral aggregate, mineral filler, water, and other additives, properly proportioned, mixed, and spread in accordance with the City of Richmond Standard Plans and Details and the Caltrans Standard Specifications; usually less than one-half (½)-inch thick.
“Special District” means any agency of the State for the local performance of governmental or proprietary functions within limited boundaries, and includes a county service area, a maintenance district or area, an improvement district or improvement zone, or any other zone or area formed for the purpose of designating an area within which a property tax rate will be levied to pay for a service or improvement benefitting that area.
“Street Overlay” means one or more courses of asphalt construction on an existing pavement; usually greater than one-half (½)-inch thick; and generally includes an asphalt leveling course to contour-correct old pavement.
“Street Vacation” means the complete or partial abandonment or termination of the public right to use a street, highway, or public service easement. A street or highway is defined as all or part of, or any right in, a state highway or other public highway, road, street, alley, trail, or other public right-of-way or easement.
“Public Service Easement” means an easement acquired for public use by dedication or otherwise, for sewers, pipelines, electrical or water transmission lines, storm drains, drainage canals, and other limited use public easements other than for street or highway purposes.
“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.
“Underground utility district” has the meaning set forth in Chapter 12.48 of the Richmond Municipal Code.
“Utility company” shall mean any public utility company or entity authorized to work in the public right of way providing public utility services such as water, electricity, natural gas, telephone, and communication.
“Utility” means any person or entity providing electricity, gas, telephone, telecommunications, water, or other services to customers, and which pursuant to State law or local franchise, is entitled to install its Facilities in the ROW.
“Video Service” has the meaning set forth in California Public Utilities Code Section 5830(s).
“Video Service Provider” has the meaning set forth in California Public Utilities Code Section 5830(t) and, in addition, refers collectively to any cable operator as defined in Public Utilities Code Section 5830(b), or open-video system operator as defined in Public Utilities Code Section 5830(n).
2.30.030 – Applicability and Exceptions
Any person must obtain a Permit or Agreement in accordance with this Chapter before placing any Encroachment in, on, over, or under any ROW within the City.
(a) For purposes of this Chapter, a person may include, but is not limited to: Video Service Provider, Utilities, and Special Districts; or construction by private contract of any work in the ROW (e.g., sewer laterals, et al.). Where the provisions conflict with franchise provisions or other agreement between a Permittee and the City or state, the franchise’s provisions or other agreement shall control.
(b) Notwithstanding subsection (a), above, no Permit or Agreement shall be required for any of the following:
(1) Actions of any City officer or employee engaged in the discharge of official duties;
(2) Performance of work under contracts to the City, including work for City project(s);
(3) Encroachments existing prior to this Chapter’s effective date; however, nothing in this Chapter shall preclude City Engineer from requiring an appropriate Permit or Agreement documenting the rights and obligations of the licensee, and any preexisting Encroachment remains subject to removal at any time when City
Engineer determines the Encroachment adversely affects the safety, capacity, or integrity of the ROW and interferes with public use;
(4) Maintenance or repair of existing pipes, Facilities, conduits, or other structures lawfully on, or under, a ROW where such maintenance or repair work will not disrupt traffic in an arterial or major arterial street;
(5) Emergency street cut or excavation in ROW to repair a broken or defective pipe, Facility, or conduit lawfully on, or under, a public arterial street, for the preservation of life and property when an urgent necessity arises, and City offices are closed. Reasonable vehicular and pedestrian barriers, or other traffic controls, shall be provided during the performance of these repairs. Person performing the repair work shall notify the City’s Engineering and Police Department(s) by telephone at the time any such repair work is commenced and must apply for a Permit within one (1) calendar day after City offices re-open;
(6) Planting, trimming, pruning or removal of any new or existing tree, shrub, or plant within the ROW where a Permit is issued for such work pursuant to the Code’s Chapter 10.08, and where no traffic lane closure is anticipated;
(7) Sidewalk cafes and restaurants, which shall be governed by the provisions and requirements of the Code’s Chapter 15.04;
(8) City Council-approved street closures for special events.
(c) Notwithstanding subsections (a) and (b), above, none of the provisions in this Chapter shall apply to “Part 3 – Private Landowner Encroachment(s) Into Unimproved Portions of the ROW” unless expressly stated.
(d) Any Encroachment that requires, but does not have, a Permit shall be deemed a violation of this Chapter and a public nuisance, which the City may abate pursuant to any applicable provision of law including, but not limited to, this Code’s Chapter 9.22.
12.30.040 – Permit Applications, Generally
(a) Any and all construction work, including but not limited to work involving streets and paving, including excavations and trenching, within the City’s ROW shall require an Encroachment Permit.
(b) For additional permit application requirements, et al. related to any excavation work within the City’s ROW, see Section 12.30.060 and Part 2 (“Streets and Paving”).
(c) Permit application(s) may be obtained from the City’s Engineering Services Department.
12.30.050 – Permit Application Requirements
(a) An application for an Encroachment Permit, including renewal of an existing Permit, shall be on a City Engineer-prescribed form. The Applicant shall sign the form, which shall include all the following materials unless the City Engineer provides a written waiver:
(1) Name, address, and telephone number of the Applicant; (2) Name, address, and telephone number of the contractor, if a contractor will perform any proposed work and contractor is not Applicant; (3) Location, purpose, extent, and nature of the proposed work; (4) Period of time when the proposed work will be performed; (5) Traffic and pedestrian control plan(s) for the proposed work’s location; (6) Certificate of insurance from Applicant’s and/or contractor’s insurance carrier in a form satisfactory to the City, and which names the City as an additional insured;
(7) Key map and detailed improvement plan showing all Facilities to be located in the ROW, including the material of construction; horizontal and vertical locations with respect to property and grade line(s); existing utilities; and all other pertinent Facilities and information the City Engineer requires. Unless exempted by State law, a California Registered Professional Civil Engineer shall prepare a detailed improvement plan;
(8) Any other specifications, analyses, or materials required by the City Engineer to describe the work; its location in, and its effect on, the ROW, including the mode of operation, maintenance and use;
(9) Current maps and records of the underground Facilities at the site; (10) Encroachment Permit fee set forth in the City’s Master Fee Schedule. (11) A deposit sufficient to cover the cost of mailed notice if required.
(b) In signing the application, Applicant attests that all information in support of the application is true and correct. When Applicant submits a completed and signed application form, all supporting documents and information, and the required fee, the application will be deemed complete. The City Engineer shall act upon an application for an Encroachment Permit within sixty (60) days after the application is complete.
(c) Registration. Prior to applying for a Permit, the City may require an individual performing the encroachment work to register with the City for a Permit and to provide the following:
(1) Warranty Bond: a cash deposit equal to the greater of five-hundred dollars ($500.) or twenty-five percent (25%) of the work’s value. Companies working under a franchise agreement that includes a bond are not required to post the cash deposit unless/until they have been issued a notice or citation for a violation by the City’s standards or Permit requirements;
(2) A current City Business License;
(3) Current Certificate of Insurance meeting the requirements of Section 12.30.090, below;
(4) 24-hour phone number for emergencies; and
(5) The name, telephone number, and mailing address (fax number, cell phone, and e-mail address if available) of the individual who will receive all City
correspondence.
(d) As a condition of the Permit, Permittee shall provide evidence of a regional notification center-issued (e.g., Underground Service Alert, USA) inquiry identification number pursuant to California Government Code Section 4216.
(e) Permittees shall pay close attention to the location and alignment of all USA markings while performing their work.
USA Codes:
Electric: Red
Gas-Oil: Yellow
Communication-CATV: Orange
Water: Blue
Sewer: Green
Temporary Survey Markings: Pink
Proposed Excavation: White
(f) Excepting emergencies, Permits shall be pulled in advance of work. An emergency exists only for: life or property endangerment; or when an essential utility service is, or may be, interrupted during weekends, holidays, or between 5:00 p.m. and 8:00 a.m. of normal working days.
(g) In an emergency occurs, Permittee shall notify the City, and apply for a Permit for “emergency work,” within four (4) hours after the City offices open.
(h) Pre-construction meeting:
(1) A pre-construction meeting shall be held for all projects scheduled to take more than fifteen (15) working days to complete.
(2) Meeting attendees shall include the owner, contractor, any other involved agency, and the City.
(3) The City may issue administrative citations if a project scheduled for completion within fifteen (15) days exceeds the fifteen-day timeline and a pre-construction meeting was not held
(4) The City shall approve the traffic control plan prior to the pre-construction meeting.
(i) By accepting a Permit, the Facility’s Permittee and/or Owner to whom the Permit has been issued agree to all the following:
(1) To follow all laws, rules, regulations, and Permit conditions. (2) To assure that their employees, contractors, and subcontractors, comply with all laws, rules, regulations, and Permit conditions.
(3) To indemnify the City against all claims for personal injury or property damage that may arise in connection with the work.
12.30.060 – Permit Application Requirements for Excavations
In addition to the general permit application requirements in Section 12.30.50, any permit application related to excavation work shall also be subject to the provisions of this section.
(a) Any excavation work within the City’s ROW shall require a Permit specifically for excavation in addition to other required Permits. The individual performing the work shall apply for the Permit.
(b) All Permit applications for excavation work shall include plans that indicate the following:
(1) Street name to be excavated and nearest cross street. (2) Distance of proposed excavation from face of curb. (3) Distance of proposed excavation from intersection. (4) Size of the excavation (length and width).
(5) Location of any aboveground Facilities to be installed, showing:
(A) Distance from curb and any street Facilities/furnishings. (B) Purpose of the Facility.
(C) Size of the Facility.
(D) Location of doors and door swings.
(6) Location of any existing and to-be-installed underground Facilities showing:
(A) Conduit vaults, maintenance holes, pipes, etc.
(B) Structural detail and additional information for structures to be installed such as vaults and maintenance holes.
(C) Construction method of the structure to be installed. (D) Construction detail, location, size, design criteria and the purpose of the Facility to be installed.
(7) Cross-section of a typical trench indicating:
(A) Approximate depth of the installed Facility.
(B) Trench-backfill depth, compaction, and layer depths. (C) Pavement section detail (type and depths).
(D) Plans, structural details, and trench cross-section must be signed and stamped by a licensed civil engineer, when legally required. (8) The plan may show the approximate excavation location, provided that the excavation’s exact location is shown on the “as- built” plan. These “as-built” plans shall be submitted prior to the City’s Permit finalization.
(c) If Permittee damages other Facilities during excavation work, Permittee will need a separate Permit to repair the damaged Facility with additional excavation and trenching.
Permittee shall maintain the site and restore the pavement and any affected signage or striping.
(d) For permit expiration, see Section 12.30.100(c)(5), et seq. (e) For notice requirements, see Section 12.30.110, et seq.
12.30.070 – Permits and Encroachment Agreements - City’s Rights and Privileges, Generally
(a) At City’s request, Permittee shall relocate, remove, or abandon the encroachment at their sole expense for any of the following reasons, unless this requirement conflicts with any applicable local Code, state statute, or franchise agreement:
(1) City requires construction, reconstruction, or maintenance work (collectively, “work”) in the ROW that necessitates relocation, removal, or abandonment of an encroachment; or
(2) ROW placement of structures and/or Facilities conflicts with City construction, reconstruction, or maintenance work therein.
(b) When City requires relocation, City Engineer shall give Permittee written notice designating a reasonable time for encroachment relocation or removal, and Permittee shall act accordingly and to City Engineer’s satisfaction. In determining a reasonable time under this Section, City Engineer shall consider the following: nature of the encroachment, urgency of removal need; cost of removal, difficulty of removal; value of the property to the owner, and any other pertinent facts.
(c) City Engineer reserves the right to suspend the Encroachment Permit or Agreement to protect the public from danger and to take such action necessary to correct the danger-posing condition. In the event of suspension, City Engineer shall notify the Permittee and provide opportunity for hearing.
(d) City Engineer may require other reasonable conditions, including installation of Facilities or structures to address accessibility and drainage to protect the public health, safety, and welfare.
(e) City reserves the right to inspect any structure or Facility in ROW
(f) The City Engineer shall approve an Encroachment Permit upon making the following findings, and Permittees shall be subject to the relevant requirements of this Chapter and to all the following conditions, as applicable:
(1) Findings.
(A) Proposed encroachment contains no potential to cause a significant environmental effect(s); nor will it be detrimental to public’s health, safety, and welfare;
(B) Complete application contains all necessary, supporting information;
(C) Applicant made reasonable efforts to erect, construct, use, operate, and/or maintain underground Facilities; provided, however, from and after the effective date of an underground utility district establishment, the Applicant shall erect, construct, use, operate, and maintain its Facilities underground. Where
undergrounding is not feasible (excepting any area declared to be an underground utility district), the Applicant has made reasonable efforts to co- locate Facilities on existing poles or other aboveground structures;
(D) Proposed Facilities’ location is the best available option to minimize adverse impacts on the use of the ROW and on adjoining properties;
(E) If application is for Permit renewal, Permittee has complied, and is in compliance with, current Permit and its conditions;
12.30.080 – Permits - Permittee’s and Licensee’s Obligations, Generally (a) The Permittee shall:
(1) Provide accurate, detailed information regarding the location of existing and proposed structures in the ROW at the request of any person contracted to perform work in/on ROW;
(2) Timely correct any maintenance or operational deficiencies;
(3) Produce current, complete, and accurate maps, plans, diagrams, and records pertaining to any structure or Facility installed in the ROW within ten (10) business days of City’s request;
(4) Complete installation or construction of structures and Facilities in the ROW and all construction-related damage to the ROW shall be repaired within two (2) years from the date the Encroachment Permit or Agreement issues. Exception:
City Engineer may grant written extension of the time to complete installation, construction, or repair for good cause;
(5) Operate and use structures and Facilities in the ROW solely and exclusively for the purposes and uses as stated in the application;
(6) Not alter the purpose, use, or operator of the structures and Facilities without transfer approval;
A. Exception: any Landowner Encroachment Agreement shall be binding upon, and inure to the benefit of, Permittee’s successors in interest, heirs, or devisees.
(7) At their own expense, restore ROW to the same or better condition than before installation of at their own expense, restore ROW to the same or better condition than before installation of Facilities or structures upon removal or abandonment of same;
A. Failure to restore ROW may be deemed a violation of this Chapter and a public nuisance subject to City abatement pursuant to any applicable provision of law, including but not limited to RMC Chapter 1.04. (8) During construction, Permittee shall do all the following:
(A) Maintain a copy of Permit issued pursuant to this Chapter at the job site
during work periods until project completion and City Engineer approval.
Permit(s) shall be shown to City employees upon request; (B) Provide City Engineer-approved, appropriate traffic warnings, safeguards, and controls;
(C) Provide temporary pedestrian-access Facilities as necessary to comply with local, state and federal law(s), including the Americans with Disabilities Act, and with the written direction of the City Engineer, if any. (D) Maintain all structures, Facilities, and landscaping within the encroachment area in a safe and clean manner and shall observe and enforce all applicable local, State, and Federal safety orders, rules, and regulations at all times. (E) Promptly remove all graffiti on any structure or Facility within the encroachment area.
(F) Notify the City’s Police Department and the City Engineer, and shall promptly repair, any damage to structures or Facilities caused by criminal activity, including, but not limited to, copper theft.
(9) As may be required by California Government Code Section 4216 et seq., Permittee shall contact Underground Service Alert (USA) prior to commencing, and as appropriate during, any Permitted work.
(10) It shall be unlawful for Permittee to erect, construct, use, operate or maintain their Facilities aboveground whenever any area of the City is declared as an underground utility district.
(11) All work done under the Permit shall conform to standard specifications or, in the absence of standard specifications, to recognized standards of design, construction, and practices in placing encroachments in, on, under or above the ROW.
(12) All Facilities shall be constructed, operated, and maintained in the time, place, and manner that cause the least interference with the public’s use of the public ROW; the City’s management and use of the ROW, and the rights or reasonable convenience of property owners adjoining the ROW.
(13) Comply with all laws, rules, regulations, and Permit conditions and assure that their employees, contractors, and subcontractors do the same.
12.30.090 – Permittees’ Indemnification and Insurance
(a) Where the insurance conditions stated below conflict with franchise provisions or other agreement between a Permittee and the City or state, the franchise’s provisions or other agreement shall control.
(b) To the maximum extent allowed by law, Permittee and Licensee shall indemnify, defend, release, and hold harmless the City, its agents, officers, employees, boards, commissions and contractors (“Indemnitees”) against any and all liabilities, losses, claims, actions, causes of action or demands whatsoever against any of them, including
claims for 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’s fees and court costs, arising out of, or connected in any way with, the installation, operation, and maintenance of any Facilities in, or the use of, any ROW 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 caused by Indemnitees’ sole negligence, willful misconduct, or criminal acts.
(c) To the maximum extent allowed by law, Permittee shall indemnify, defend, release, and hold harmless Indemnitees against any claim, action, or proceeding brought to attack, set aside, void or annul the environmental review process for and/or approval of a Permit or Agreement issued pursuant to this Chapter.
(d) Permittee and their contractors who perform ROW work shall secure a policy of broad form commercial general liability insurance naming City as additional insured in an amount not less than two million dollars ($2,000,000.00) per occurrence, or as approved by City’s Risk Manager, unless Permittee is exempt by law from having to procure such insurance before establishing or maintaining any works or Facilities in, on, under or above the ROW. All contractors’ policies secured in compliance with this condition shall be in effect for the duration of contractor’s work in the ROW; all Permittees’ policies secured in compliance with this condition shall be in effect for as long as the encroachment remains in the ROW.
(e) Permittee and their contractors performing work in the ROW shall furnish to the City, and file with the City Clerk a corporate surety bond guaranteeing the faithful performance of the construction of such work and a separate bond to secure claims payments of laborers, mechanics, and material suppliers employed in the construction of such work. The performance bond and payment bond shall each be in an amount equal to one hundred percent (100%) of the total amount of the construction costs of the work to be performed in the ROW. All bonds shall be issued by a corporate surety admitted in the State of California and shall name the City as a co-obligee.
12.30.100 – Terms and Conditions, Permits Generally
(a) As a condition of the Permit, Permittee shall provide evidence of a regional notification center-issued (e.g., Underground Service Alert, USA) inquiry identification number pursuant to California Government Code Section 4216.
(b) All application materials are incorporated by reference into the Permit; and all representations made within the application are conditions of Permit approval.
(c) Permit duration shall be indicated on the Permit:
(1) All Permits shall include estimated start and completion dates. A Permit is valid from the construction’s start date specified on the approved Permit until the specified completion date.
(2) Permits are not valid if there is failure to: obtain other, required Permits; or to provide required notifications.
(3) No traffic disruptions allowed before 8:00 a.m. and after 4:00 p.m. unless specifically approved.
(4) Some Permits may be valid on specific dates and approved with special conditions:
(A) When work shall occur.
(B) When work shall be completed.
(C) Before which work shall not start.
(5) Permits expire and become void, unless otherwise amended:
(A) Sixty (60) days after the start date if no work has commenced. (B) If work does not proceed diligently, and if delays exceed four (4) working days once the work begins, unless the delay is caused by weather or other circumstances beyond the Permittee’s control.
(C) When the excavation, including trench restoration, is completed; or on the date the Permit specifies as the Permit expiration date. (6) Work proceeds diligently if:
(A) After a project begins, work continues regularly, except on: weekends and holidays; during inclement weather, labor disputes, or any emergency beyond Permittee’s control.
(B) Permittee ensures that all necessary materials and supplies are at hand and ready for use to avoid delaying the excavation and to ensure the prompt restoration of the ROW.
(d) Termination. An Encroachment Permit shall terminate on the date specified therein, or upon abandonment of the Facilities and/or structures constructed pursuant to such Permit. If the Encroachment Permit specifies no date, the Permit shall be considered of indeterminate duration.
(e) Extension. A Permittee may extend a valid Permit by requesting an extension prior to the Permit’s expiration date. Said request shall specify the change of date(s) and detailed reason(s) for the extension. The City Engineer reserves the right to deny the extension request.
(f) Renewal. A renewal application, supporting materials, and fee must be submitted at least sixty (60) days prior to the termination date an Encroachment Permit or the Permit may lapse. A lapsed Permit may be deemed a violation of this Chapter, and the unpermitted encroachment may be considered a public nuisance, subject to City
abatement pursuant to any applicable provision of law, including but not limited to RMC Chapter 9 22.
(g) Fees. Permit fees are due at the time the Permit issues. (1) Permit-application processing fees are non-refundable. (2) Prior to Permit issuance, all past due fees, fines, and penalties must be paid. (3) If a Permit violation occurs, the City will not process other application(s) until payment of all fines and penalties and until all Permit conditions have been met.
(4) If a permit application is withdrawn or if an approved permit is cancelled prior to the start of work, the Applicant or Permittee may request a refund of bond funds. To request a refund, submit a written request to the City Engineer, which shall include: The reason for cancellation or withdrawal and the Permit number.
(h) If an account is past due, or not in good standing, a Permit will not issue until the account is brought into good standing with all fees and fines remitted.
12.30.110 – Notice Requirements
(a) All Encroachment Permits and Licenses (Agreements) shall require Notice as follows:
(1) Applications: For applications that propose an aboveground encroachment, City Engineer shall provide 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 300 feet of the proposed encroachment, and to the Neighborhood Council and any homeowners’ association in the neighborhood of the proposed encroachment, advising of the filing of an application for approval of an encroachment into the ROW, describing the proposed encroachment and its location, and providing an opportunity to submit written comments regarding the application to the City Engineer within fifteen (15) days from the date of the letter and prior to the City Engineer’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.
(2) Generally. Excepting necessary emergency repairs, at least forty-eight (48) hours before commencing any work, which will obstruct or impede the flow of vehicular and/or pedestrian traffic, Permittee shall post notifications within the affected area to the satisfaction of City Engineer.
(3) Permitted Work. Permittee shall provide public notifications when excavating in the ROW as follows:
(A) Minor projects lasting longer than forty-eight (48) hours but fewer than fifteen (15) working days shall provide posters sized eleven-by-seventeen inches (11” x 17”) with one (1)-inch minimum-sized letters. Posters shall be displayed
at the project’s initial and terminal point(s) and every 300 feet in between.
(B) Posters must contain:
(i) Permittee’s name(s), address(es), and telephone number(s); and
(ii) Project’s start and completion date(s).
(C) For Major Projects lasting fifteen (15) working days or longer, Permittee shall do all the following:
(i) After Permit issuance, and at least five (5), but no more than thirty (30) calendar days, before the anticipated start date of work, Permittee shall mail or deliver written notice to:
(1) Residents and occupants along the affected street;
(2) Schools, churches, and other assembly uses within three hundred (300) feet of the affected street; and
(3) The City’s Engineering Services and Public Works
Department(s)
(ii) At least five (5) calendar days, but not more than fifteen (15) calendar days, prior to starting work: Permittee shall post and maintain notices in accordance with paragraph (3)(a) above. The notices must be sized eleven by seventeen inches (11” x 17”) and shall contain:
(1) Permittee’s name(s), address(es), and telephone
number(s);
(2) Project description;
(3) Project start and completion date(s);
(4) Project contact person’s name, address and twenty-four (24)-hour telephone number.
PART 2 – STREETS AND PAVING
In addition to the requirements in Sections 12.30.020 through 12.30.110, above, the following shall be required for Permits involving Streets and Paving, including but not limited to excavations.
12.30.120 – Newly Constructed or Resurfaced Streets – Prohibition Period (a) Newly constructed or resurfaced streets shall be termed “Prohibition Streets” within this section. Permission to excavate in Prohibition Streets will not be granted for five (5) years following street-overlay completion; an overlay is at least one-half (½)-inch-thick asphalt layer. For streets with Chip Seal, Slurry Seal Coating, or Micro Paving with less than one-half (½)-inch of new pavement, the prohibition period shall be three (3) years.
Permittees shall perform advanced planning to determine alternate methods of
necessary repairs to avoid excavating in newly resurfaced streets. Exceptions to the above policy are:
(1) Emergencies endangering life or property.
(2) Interruption of essential utility service.
(3) Work mandated by City, state, or federal law(s).
(4) Building service where no other reasonable means of providing service exists. (5) Situations in which no alternative course of action exists, as determined by the City Engineer in writing and setting forth facts concluding that no alternative exists.
(b) Prohibition Street excavations shall require a waiver. (1) To request a waiver, Permittee shall submit a written request to the City Engineer that includes all the following:
(A) Excavation location;
(B) Description of the work to be performed;
(C) Reason(s) the work was not performed before the street was paved; (D) Reason(s) the work cannot be deferred until after the Prohibition Period;
(E) Reason(s) the work cannot be performed at another location; and (F) Reason(s) that justify the excavation of a Prohibition Street.
(2) Any Prohibition Street excavations will be repaired with full lane-width paving on the street as follows (refer also to Section 12.30.150, Paving):
(A) Overlaid or reconstructed streets: All lanes that are affected shall be ground down two (2) inches and repaved with two (2) inches of asphalt concrete, OR all affected lanes shall be resurfaced pursuant to Section
12.30.150, Paving.
(B) Slurry Sealed, Chip Sealed, or Micro Surfaced streets: All affected lanes shall be resurfaced pursuant to Section 12.30.150, Paving.
(C) If a lateral-cut excavation, a minimum of one (1)-foot on either side of the trench shall be resurfaced. For longitudinal trenches, the entire length shall be resurfaced plus one (1) foot on either end.
(D) Exception: Full lane-width restoration shall not be required if either of the following applies:
(i) The work is not defined as an excavation in Section 12.30.010.
(ii) The work is performed on behalf of a low-income household to bring an owner-occupied, single-family residence into compliance with sanitary sewer regulations at any time other than as part of the residence’s sale. Low-income is defined as eighty percent (80%) of area median family income. This exception’s purpose is to prevent hardship to property owners with limited means, and it shall be interpreted and applied solely to achieve that purpose.
(3) Before a Permit issues for Prohibition Street work, City Engineer will verify that Applicant analyzed all feasible alternatives for necessary repairs using a trenchless method in Prohibition Streets to avoid excavating a newly resurfaced street whenever possible.
12.30.130 – Excavation Material
(a) Pavement shall be cut to a straight, neat, vertical line prior to excavation.
(b) All excavated material shall be removed from the job site within twenty-four (24) hours.
(c) Every trench shall be backfilled or covered by trench plates daily. The City may issue administrative citations or may pursue other legal remedies if trenches are improperly covered or not backfilled in a timely manner. Backfill must meet the requirements specified in Section 12.30.140.
12.30.140 – Backfill
(a) Trenches shall be backfilled with Class 2 Aggregate Base as specified in the Caltrans Standard Specifications Section 26, “Aggregate Base” or suitable material as required by the City’s Standard Plans and Specifications. Backfill compaction shall accord with the City’s Standards.
(b) When undermining occurs, existing pavement shall be removed as required to compact the backfill and to restore pavement.
(c) An independent laboratory shall certify compaction tests. The test results shall be submitted to the City Engineer who may require the Contractor to recompact and retest until the test results show achievement of proper compaction.
12.30.150 – Paving
(a) Trenches shall be paved in accordance with the City’s Standard Plans and Specifications. After the trench has been backfilled, and immediately prior to placing asphalt concrete, the existing asphalt concrete shall be saw cut, or milled according to City’s Standards, to a vertical face. The cut shall be a “T-Cut” according to City’s Standards, and the new asphalt concrete paving shall be butt-joined to the existing asphalt concrete vertical face. Neither new nor existing paving shall be feathered.
Vertical faces shall be tack-coated. In Prohibition Streets, a paving machine or a spreader box shall place the final two (2) inches of asphalt concrete wearing surface.
Asphalt concrete shall be delivered and compacted in accordance with the City’s Standard Plans and Specifications.
For proper placement of the new pavement section, damaged pavement outside of the original trench cut lines shall be removed by cutting in lines perpendicular, or parallel, to original trench lines. No diagonal cuts shall be made. When two damaged pavement
areas exit, any undamaged pavement area of three feet or less between the two damaged areas shall also be removed.
(b) Trenches in recently paved Prohibition Streets shall have the entire lane key-cut two (2)-inches deep and repaved with asphalt concrete, unless the Engineer provides written authorization to resurface with a polymer-modified slurry seal instead. When specifying the use of slurry seal instead of asphalt concrete, the Engineer’s authorization shall set forth the reasons for the specification.
(c) Trenches in recently slurry sealed Prohibition Streets shall have the entire lane resurfaced with polymer-modified slurry seal.
(d) Trenches in concrete streets shall be repaved with concrete. New pavement thickness shall equal the existing pavement’s thickness, with a minimum six (6)-inch thickness in the roadway.
(e) Trenches in arterial and collector streets shall be paved with not less than six (6)- inches of asphalt concrete; or to the existing pavement’s thickness, whichever is greater.
(f) Pavement shall be restored within fourteen (14) working days – and within thirty (30) working days for minor excavations – beginning from the time the entire trench is backfilled, absent an excused delay for circumstances beyond the contractor’s control, such as inclement weather.
(g) Asphalt pavement shall be compacted to obtain a ninety-five percent (95%) minimum relative compaction. The asphalt concrete wearing surface shall contain no irregularity exceeding five-sixteenths (5/16) of an inch in ten (10) feet within any direction.
(h) On all streets steel plates shall be used to facilitate traffic flow and to protect the excavation until restoration of finish pavement. Steel plates used to bridge street openings shall be ramped to the match the adjacent pavement’s elevation and be secured against any directional movement. Temporary ramps shall be constructed of asphalt and shall have a gradual, 30:1 slope or flatter using asphalt cutback.
(i) Permittee shall remove all painted USA markings after completion of work. (j) Permittee shall replace and restore all damaged pavement markings and striping.
12.30.160 – Defects
(a) Depressed trench pavement shall be repaired as follows:
(1) Wearing surface defects: remove and restore wearing surface. (2) Major defects: excavate, remove and restore surface and base.
(b) City Inspector will determine the severity of the defect. Work that does not comply with the above requirements shall be rejected, removed, and redone by Permittee to City Engineer’s satisfaction.
(c) Permittee bears responsibility for any roadway defects over and adjacent to the trench that appear after Permittee restores the trench. Permittee shall maintain, repair, and/or reconstruct the excavation site’s affected area until City reconstructs, repaves, or resurfaces the street.
(d) If trench-related failure occurs after City reconstructs, repaves, or resurfaces the street, the Facility’s owner shall be responsible for repair if the failure occurs within one (1) year of trench repair.
(e) When City determines that an excavation, or a defect, is hazardous or constitutes a public nuisance, or poses an imminent threat to public health, safety, or welfare, City Engineer may order Permittee to remedy the condition immediately.
(f) If Permittee refuses or fails to make the needed repairs immediately as ordered by City, then City will make the repairs and:
(1) Permittee will be charged all the actual costs including administration, construction, consultant fees, equipment, inspection, notification, and remediation made necessary by Permittee’s action or inaction.
(A) City’s repair or restoration does not relieve the Permittee from liability for future pavement failures.
(2) If Permittee fails or refuses to pay the restoration cost, City may use any legal means to recover the costs, including but not limited to, property liens and/or court action. In such action, City shall be entitled to recover its reasonable attorneys’ fees and costs.
PART 3 – PRIVATE LANDOWNER ENCROACHMENT(S) INTO UNIMPROVED
PORTIONS OF PUBLIC ROW
12.30.170 – Private Landowner Encroachments
(a) As a general rule, a Landowner has no authorization to construct or place Facilities in the ROW. Under special circumstances, Facilities may be allowed on a ROW provided the Landowner applies for, and enters into, an Encroachment Agreement. No placement or building of Facilities in the ROW adjacent to, or abutting, Landowner’s property shall be allowed without an Encroachment Agreement.
(b) Generally, all provisions of Part(s) 1 and 2 shall apply to this Part 3; except, in the event of conflict, the provisions hereof shall apply to this Part 3.
(c) The Encroachment Agreement shall be in a form approved by the City Attorney; and include all relevant provisions of this Chapter; and be enforceable by the City. As a license, the Encroachment is revocable, pursuant to Part 6 hereof, at any time.
(d) Exemptions.
(1) A Landowner may install minimal, low-height landscaping (e.g., ground cover; native grasses; succulents) in the adjacent or abutting ROW without an Encroachment Agreement.
(2) A Landowner may install curb cuts and driveways if part of a permitted improvement to provide on-site parking. See RMC Chapter 12.36.
12.30.180 – Encroachment Agreement Application
(a) To apply, the Landowner shall send a letter to the City Engineer requesting an Encroachment Agreement. The Landowner’s written communication shall provide justification(s) as to why the proposed encroachment into the ROW creates a unique circumstance necessitating an Encroachment Agreement.
The Landowner’s written letter of application shall include each of the following:
(1) Name, address, and telephone number of the Applicant;
(2) Name, address, and telephone number of the contractor(s) if a contractor will perform any proposed work;
(3) Location, purpose, extent, and nature of the proposed work;
(4) Period of time when the proposed work will be performed;
(5) Traffic and pedestrian control plan for the proposed work’s location;
(6) Certificate of insurance from Applicant’s and contractor’s insurance carrier in a form satisfactory to the City;
(7) Detailed plan(s) showing all Facilities to be located in the ROW, including the material of construction; horizontal and vertical locations with respect to property and grade line(s); existing utilities; and all other pertinent Facilities;
(8) The City shall provide written notice by first class mail to adjacent and abutting owners of properties located within 300 feet of the proposed Encroachment.
(9) Any other specifications, analyses, or materials required by the City Engineer to describe the work; its location in, and its effect on, the ROW, including the mode of operation, maintenance and use;
(10) Encroachment Agreement fee set forth in the City’s Master Fee Schedule.
(11) A deposit sufficient to cover the cost of notice specified by Section
12.30.200, below.
(12) A deposit sufficient to cover costs of preparation and recordation of the Encroachment Agreement as determined by the City Attorney and shall include title review.
(b) When the written application for the Encroachment is submitted to the City, the Owner must also:
(1) Post and maintain notices at proposed Encroachment’s initial and terminal point(s) and every 300 feet in between, unless the length is less than 100 feet, in which case only one (1) notice need be posted at a prominent and readily visible location;
(2) Notices will be sized eleven by seventeen inches (11” x 17”) and include one (1)-inch minimum sized letters containing:
(A) Applicant’s name(s), address(es), and telephone number(s); (B) Description and diagram of proposed Encroachment;
(C) Proposed Encroachment project’s start and completion date(s); (D) Contact person’s name, address and twenty-four (24)-hour telephone number for proposed Encroachment, if different from (2)(A), above; (E) Location and date of public hearing on application; (F) Method by which interested parties may acquire a copy of said application.
(3) The notice(s) shall remain posted in good condition so long as the project is active and until its completion.
(c) In signing the application, the Landowner attests that all information in support of the application is true and correct.
12.30.190 – Findings and Conditions
(a) Applicants shall be subject to the conditions that follow below:
(1) Findings.
(A) Complete application contains all necessary, supporting information.
(B) The Encroachment does not conflict with adopted street improvements or similar plans, or any in development or that can be anticipated.
(C) The Encroachment does not pose a public health or safety hazard as determined by City Engineer.
(D) The Encroachment does not substantially obscure the main property frontage.
(E) The Encroachment does not adversely impact or affect adjacent properties; and/or result in Facilities discordant or inconsistent with other structures placed or erected upon the main property or in the existing ROW; and or make gratuitous use of ROW if the property is not strictly necessary for the proposed use.
(F) The Encroachment has a sufficient setback from street curbs or pavement edges and does not negatively impact the area’s reasonable use. A standard setback should be no fewer than three (3) feet, subject to City Engineer’s determination that the area’s conditions or environment allows otherwise.
(G) The Encroachment conflicts with a specific condition below, but the Encroachment is warranted due to special circumstances specifically identified and addressed in the Encroachment Agreement.
(2) Conditions.
(A) Landowner shall obtain all necessary approvals from City’s Planning, Building, and Engineering Department(s), and any impacted utility companies or video service providers, prior to the placement and construction of Encroachment(s).
(B) Landowner shall provide City with Certificates of General Liability Insurance, subject to the City Attorney’s and City Manager’s satisfaction. Landowner will provide these Certificates to the City annually by the anniversary date.
Landowner must notify City thirty (30) days prior to any cancellation or change in their insurance.
(C) Placement and construction of the Encroachment, if granted, shall be solely at the landowner’s expense. City Engineer shall establish standards by which the Encroachment shall be placed and shall be constructed in conformance with same.
(D) Landowner shall maintain the Encroachment as required by City Engineer and shall remove any and all of the Encroachment without any expense to, or replacement of improvements by City or public utility company upon ninety (90) days’ notice by City, or immediately by City, whenever, in City’s opinion, the condition of the Encroachment is determined to constitute a hazard to safety, health or public welfare or the affected area is needed for municipal or public utility purposes. City Engineer may require a deposit, or other security in a form approved by the City Attorney, for any damage to infrastructure or removal of the Encroachment. Following the removal of the Encroachment, the Landowner shall restore the ROW to a condition approximately the same as the condition of the right of way prior to installation of the encroachments.
(E) Landowner shall remove the curb side parking in front of the Encroachment if the City determines that public health or safety necessitates it.
(F) Landowner shall maintain the area over which said Encroachment is located, in a manner the City Engineer requires, for the life of the Encroachment Agreement.
(G) Landowner shall restore the sidewalks over the Encroachment for the public use when the Encroachment is terminated, modified, deviated from the original Encroachment improvement, or rescinded by City for any reasons.
(H) Landowners shall indemnify, defend, and hold harmless City and all its Councilmembers, employees, officers and agents from all liability, claims, suits, damages, attorney’s fees, costs and expenses resulting from injury or damage to persons or property which may result from the maintenance, placement and/or construction of the Encroachment.
(I) Insurance.
(i) Landowner shall provide certificates of general liability insurance satisfactory to the City Attorney and Risk Manager. Certificates of liability insurance must be provided to the City annually.
(ii) Landowner must notify City thirty (30) days prior to cancellation or change in said insurance. General Liability insurance with minimum limits of $1 million per occurrence and $2 million in the aggregate shall be maintained at all times during the term of the Encroachment Agreement.
(iii) Additional insured: The City, its officers, officials, employees, agents and volunteers are to be named as additional insureds for all liability arising out of ownership, maintenance or use of the part of the premises located within the Encroachment area. An additional insured form CG 2012, or equivalent, is required. Landowner shall provide Certificate of Insurance naming the City as additional insured with the liability insurance limit(s) of $1 million for each occurrence and $2 million in the aggregate.
(iv) Landowner’s insurance coverage must be primary as it pertains to the City, and the City’s insurance or self-insurance shall not be called upon to contribute to any loss or claim.
(v) Landowner’s insurance will provide a waiver of subrogation in favor of the City by virtue of payment of loss by landowner’s insurance coverage.
(vi) Landowner shall maintain continuous coverage for the life of the Encroachment Agreement. Should Landowner fail to maintain insurance as required, the City may take such action as it deems necessary to
protect the City’s interests. Such action may include, but is not limited to, termination of the Encroachment Agreement or other action as the City deems appropriate.
(vii) If the Encroachment Agreement application is approved, the finalized Encroachment Agreement shall be recorded in the office of the County Recorder of Contra Costa County, California. The terms and conditions of the Encroachment Agreement shall be binding on the legal owner(s) of the property and any legal successor(s) or assign(s), including future bona fide purchaser(s).
(J) The Encroachment does not obstruct:
(i) More than nine (9) feet of a one (1)-way street travel lane, which includes space for a four (4)-foot sidewalk on one side;
(ii) More than eighteen (18) feet of two (2)-way street travel lanes, which includes space for a four (4)-foot sidewalk on one side.
12.30.200 – Public Hearing Required
All Encroachment Agreement applications shall be subject to a public hearing by the granting authority, which shall be the City Council.
(a) The City Council shall conduct a public hearing on the application for an Encroachment Agreement. The City Clerk’s Office shall set a time and place for such hearing, which shall be held within thirty (30) days of the City’s receipt of a complete application.
(b) At least ten (10) days before the public hearing, the City shall make available to the public copies of the Encroachment Agreement application in the office of the City Clerk.
(c) Additionally, at least ten (10) days before the hearing, if the hearing date is different than the date on the notice provided in Section 12.30.180, the date on the posted notice shall be corrected.
(d) In addition to the posting of notice, a public hearing notice shall be mailed not fewer than ten (10) days prior to the date of such hearing to all property owners having property, and each residential or other unit, within three hundred (300) feet of the application’s subject property.
(e) After receiving public comment at the hearing, the City Council shall approve, deny, or modify the Encroachment Agreement based on the required findings of Section
12.30.190 within thirty (30) days following the hearing.
(f) Findings for approving an Encroachment Agreement are set forth in Section
12.30.190(a)(1)(A-G).
(g) The City shall promptly notify the Applicant in writing of its decision on the Encroachment Agreement application. The City shall also mail notice of its decision to members of the public who have requested notice.
PART 4 – EASEMENTS
12.30.210 – Easements
(a) In addition to any other method for the creation of an Easement, an Easement may be created by a recorded declaration and covenant of Easement made by an owner of real property to the City, or granted by the City, in accordance with the procedures set forth in this chapter.
(b) Purpose. An Easement may be created pursuant to this chapter for one or more of the following purposes: parking, ingress, egress, emergency access, light and air access, landscaping, open space purposes, or other purposes in accordance with law.
(c) Methods of Creation.
(1) Dedication.
(A) With City’s consent, an irrevocable offer of dedication may be made of real property for any public purpose, including, but not limited to, streets, highways, paths, alleys, including access rights and abutter’s rights, drainage, open space, public utility or other public Easements, parks, or other public places.
(B) Dedication shall be executed, acknowledged, and recorded in the same manner as a conveyance of real property and in a form approved by the City Attorney.
(C) Such offer of dedication, when recorded in the office of the county recorder where the property is located, shall be irrevocable. Any offer must be accepted to be effective pursuant to section (B), above. Once the offer is recorded and irrevocable, it can be accepted by the City Council.
(D) Offer of dedication for street and highway purposes may be terminated and right to accept offer may be abandoned pursuant to the Street Vacation provisions below, in Part 5.
(E) The above procedure shall be alternative to any other procedure authorized by law.
(2) Ordinance.
(A) The City Council may adopt an ordinance pursuant to Government Code Section 65870, et seq., imposing a private covenant for a public Easement as follows: