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The Director, at his or her sole discretion, may allow amendments to the permit, such as to change the method of construction, to advance the start date of the excavation, or modify permit conditions, upon written request from the permittee. Such requests shall explain the basis for the permit amendment and shall be accompanied by applicable fees specified in Subarticle IV. Any amendments that the Director grants may be subject to additional special conditions, including, but not limited to, conditions that ensure timely completion and coordination of the project. The Director shall not grant requests for amendments to the excavation after the permit expiration date.
(Added by Ord. 33-02, File No. 020051, App. 3/28/2002)
The Department shall not issue any permit to excavate in any moratorium street; provided, however, that the Director, in his or her discretion, may grant a waiver for good cause. The Director is specifically authorized to grant a waiver for an excavation that facilitates the deployment of new technology as directed pursuant to official City policy. The Director shall issue his decision on a waiver within a reasonable period after receipt of a written request for a waiver. The Director may place additional conditions on a permit subject to a waiver, including, but not limited to, the charging of additional fees pursuant to Section 2.4.43. The Director's decision regarding a waiver shall be final.
(Added by Ord. 341-98, App. 11/13/98)
Nothing contained in this Article shall be construed to prevent any person from taking any action necessary for the preservation of life or property or for the restoration of interrupted service provided by a municipal or utility excavator when such necessity arises during days or times when the Department is closed. In the event that any person takes any action to excavate or cause to be excavated the public right-of-way pursuant to this Section, such person shall apply for an emergency permit within four hours after the Department's offices are first opened. The applicant for an emergency permit shall submit a written statement of the basis of the emergency action and describe the excavation performed and any work remaining to be performed.
(Added by Ord. 341-98, App. 11/13/98)
Each permit, except one obtained by a municipal excavator, shall incorporate by reference and require the owner and its agent, if any, to comply with the liability, indemnity, insurance, and taxable possessory interest provisions set forth below in this Section; provided, however, that the Director, with the concurrence of the City Controller and City Risk Manager, may modify the indemnity and insurance provisions as they pertain to a particular permit.
(a) Liability Upon Owner and Agent. Each owner and its agent is wholly responsible for the quality of the excavation performed in the public right-of-way and both the owner and agent are jointly and severally liable for all consequences of any condition of such excavation and any facilities installed in the public right-of-way. The issuance of any permit, inspection, repair, or suggestion, approval, or acquiescence of any person affiliated with the Department shall not excuse any owner or agent from such responsibility or liability.
(b) Indemnification, Defense, and Hold Harmless.
(i) Each owner and agent shall agree on its behalf and that of any successor or assign to indemnify, defend, protect, and hold harmless the City, including, without limitation, each of its commissions, departments, officers, agents, and employees (hereinafter in this subsection collectively referred to as "San Francisco") from and against any and all actions, claims, costs, damages, demands, expenses, fines, injuries, judgments, liabilities, losses, penalties, or suits including, without limitation, attorneys' fees and costs (collectively, "claims") of any kind allegedly arising directly or indirectly from:
(1) Any act by, omission by, or negligence of, owner or its agent, contractors, subcontractors, or the officers, agents, or employees such entities, while engaged in the performance of the excavation authorized by the permit, or while in or about the property subject to the permit for any reason connected in any way whatsoever with the performance of the excavation authorized by the permit, or allegedly resulting directly or indirectly from the maintenance or installation of any equipment, facility(ies), or structures authorized under the permit;
(2) Any accident, damage, death, or injury to any contractor or subcontractor, or any officer, agent or employee of either of them, while engaged in the performance of the excavation authorized by the permit, or while in or about the property for any reason connected with the performance of the excavation authorized by the permit, or arising from liens or claims for services rendered or labor or materials furnished in or for the performance of the excavation authorized by the permit;
(3) Any accident, damage, death, or injury to any person(s) or accident, damage, or injury to any real or personal property in, upon, or in any way allegedly connected with the excavation authorized by the permit from any cause or claims arising at any time; and,
(4) Any release or discharge, or threatened release or discharge, of any hazardous material caused or allowed by permittee about, in, on, or under the excavation site subject to the permit or the environment. As used herein, "hazardous material" means any gas, material, substance, or waste which, because of its quantity, concentration, or physical or chemical characteristics, is deemed by any federal, state, or local governmental authority to pose a present or potential hazard to human health or safety or to the environment. "Release" when used with respect to hazardous materials shall include any actual or imminent disposing, dumping, emitting, emptying, escaping, injecting, leaching, leaking, pumping, pouring, or spilling.
(ii) Upon the request of San Francisco, the owner or its agent, at no cost or expense to San Francisco, must indemnify, defend, and hold harmless San Francisco against any claims, regardless of the alleged negligence of San Francisco or any other party, except only for claims resulting directly from the sole negligence or wilful misconduct of San Francisco. Each owner and its agent specifically acknowledges and agrees that it has an immediate and independent obligation to defend San Francisco from any claims which actually or potentially fall within the indemnity provision, even if the allegations are or may be groundless, false, or fraudulent, which obligation arises at the time such claim is tendered to owner or its agent by San Francisco and continues at all times thereafter. In addition, San Francisco shall have a cause of action for indemnity against each owner and its agent for any costs San Francisco may be required to pay as a result of defending or satisfying any claims that arise from or in connection with the permit, except only for claims resulting directly from the sole negligence or wilful misconduct of San Francisco. Owner and its agent agree that the indemnification obligations assumed under the permit shall survive expiration of the permit or completion of excavation.
(c) Insurance.
(i) Each owner or its agent shall maintain in full force and effect, throughout the term of the permit, an insurance policy or policies issued by an insurance company or companies satisfactory to the City's Controller and Risk Manager. Policy or policies shall afford insurance covering all operations, vehicles, and employees, as follows:
(1) Workers' Compensation with employers' liability limits not less than $1,000,000 each accident;
(2) Commercial general liability insurance with limits not less than $1,000,000 each occurrence combined single limit for bodily injury and property damage, including contractual liability; personal injury; explosion, collapse, and underground (xcu); products; and completed operations;
(3) Business automobile liability insurance with limits not less than $1,000,000 each occurrence combined single limit for bodily injury and property damage, including owned, nonowned, and hired auto coverage, as applicable;
(4) Contractors' pollution liability insurance, on an occurrence form, with limits not less than $1,000,000 each occurrence combined single limit for bodily injury and property damage and any deductible not to exceed $25,000 each occurrence.
(ii) Said policy or policies shall include the City and its officers and employees jointly and severally as additional insureds, shall apply as primary insurance, shall stipulate that no other insurance effected by the City will be called on to contribute to a loss covered thereunder, and shall provide for severability of interests. Said policy or policies shall provide that an act or omission of one insured, which would void or otherwise reduce coverage, shall not reduce or void the coverage as to any other insured. Said policy or policies shall afford full coverage for any claims based on acts, omissions, injury, or damage which occurred or arose, or the onset of which occurred or arose, in whole or in part, during the policy period. Said policy or policies shall be endorsed to provide 30 calendar days advance written notice of cancellation or any material change to the Department.
(iii) Should any of the required insurance be provided under a claims-made form, the insured owner or its agent shall maintain such coverage continuously throughout the term of the permit, and, without lapse, for a period of three years beyond the expiration or termination of the permit, to the effect that, should occurrences during the term of the permit give rise to claims made after expiration or termination of the permit, such claims shall be covered by such claims-made policies.
(iv) Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit or provides that claims investigation or legal defense costs be included in such general annual aggregate limit, such general aggregate limit shall be double the occurrence or claims limits specified above in Subsection (c)(i).
(v) Such insurance shall in no way relieve or decrease owner's and its agent's obligation to indemnify the City under Subsection (b) or any other provision of this Article.
(vi) Certificates of insurance, in the form satisfactory to the Department, evidencing all coverages above, shall be furnished to or maintained on file with the Department before issuance of a permit, with complete copies of policies furnished promptly upon the Department's request.
(vii) Where an owner is self-insured, and such insurance is no less broad and affords no less protection to the City than the requirements specified above in Subsection (c), the Department, in consultation with the City's Controller and Risk Manager, may accept such insurance as satisfying the requirements of Subsection (c). Evidence of such insurance shall be provided in the manner specified in Subsection (c)(vi).
(d) Taxable Possessory Interest. Each owner shall acknowledge on its behalf and that of any successor or assign that its permit incorporates the following statements: The owner of the facility(ies) for which the permit to excavate was obtained recognizes and understands that the permit may create a possessory interest subject to property taxation and that owner may be subject to the payment of property taxes levied on such interest under applicable law. Owner agrees to pay taxes of any kind, including possessory interest taxes, if any, that may be lawfully assessed on owner's interest under the permit to excavate or for use of the public right-of-way and to pay other excises, licenses, taxes, or permit charges or assessments based on owner's usage of the public right-of-way that may be imposed on owner by applicable law. Owner shall pay all of such charges when they become due and before delinquency.
(Added by Ord. 341-98, App. 11/13/98; amended by Ord. 33-02, File No. 020051, App. 3/28/2002)
The permit or a photo duplicate shall be available for review at the site of the excavation for the duration of the excavation and shall be shown, upon request, to any police officer or any employee of a City agency, board, commission, or department with jurisdictional responsibility over activities in the public right-of-way.
(Added by Ord. 341-98, App. 11/13/98)
Each applicant shall submit and maintain with the Department a bond, cash deposit, or other security acceptable to the Department securing the faithful performance of the obligations of the owner and its agent under any permit(s) to excavate and the compliance with all terms and conditions of this Article (the "deposit"). The deposit shall be in the sum of $25,000 in favor of the "Department of Public Works, City and County of San Francisco." Utility and municipal excavators and other frequent applicants may submit a single deposit for multiple excavations so long as a constant balance of $25,000 is maintained on file with the Department. If the Director has deducted from such a deposit pursuant to Section 2.4.46(c), the utility or municipal excavator or other frequent applicant must restore the full amount of the deposit prior to the Department's issuance of a subsequent permit.
(Added by Ord. 341-98, App. 11/13/98; amended by Ord. 33-02, File No. 020051, App. 3/28/2002)
Each applicant shall pay to the Department a fee of $66 for each permit issued for a small excavation project, a fee of $83 for each block contained in a medium excavation project, or a fee of $110 for each block contained in a large excavation project. Said fees shall compensate the Department for the cost incurred to administer the provisions of this Article. If the Director grants a permit extension or amendment pursuant to Sections 2.4.20.2 or 2.4.20.3, the permittee shall pay a fee of $66 for any block for which the permit has been extended or amended to cover the cost of additional permit review and administration. In instances where a contractor parking plan is required, the applicant shall pay a non-refundable fee of $138.00 per permit for Departmental review of the plan, and an additional $55.00 per permit each time the permittee requests a modification to the permit that will impact on-street parking unless the modified permit results in a reduction of the amount of on-street parking that is impacted.
(Added by Ord. 341-98, App. 11/13/98; amended by Ord. 33-02, File No. 020051, App. 3/28/2002; Ord. 163-15
, File No. 150270, App. 9/23/2015, Eff. 10/23/2015, Oper. 1/21/2016)
Each applicant shall pay to the Department a fee of $16 for each permit issued for a small excavation project, a fee of $55 for each calendar day of a medium excavation project, or a fee of $81 for each calendar day of a large excavation project. Said fee shall compensate the Department for the cost of the inspection and regulatory services provided to such applicant when he or she becomes a permittee pursuant to this Article. No inspection fees shall be collected from a municipal excavator when: (a) the municipal excavator pays the Department to manage and inspect the construction or (b) the excavation is to construct, replace, or repair Municipal Railway tracks. If the Director grants a permit extension pursuant to Section 2.4.20.2, the permittee shall pay $16 for a small excavation project or the appropriate fees for a medium or large excavation project for each additional calendar day for which the permit is extended to cover the cost of additional permit inspection. If the Director grants a permit amendment pursuant to Section 2.4.20.3 that results in additional permit inspection, the permittee shall pay the fees specified above for permit extensions. In instances where a contractor parking plan is required, the permittee shall pay a non-refundable fee of $339.00 per permit for Departmental inspection regarding implementation of the plan and per modified permit unless the permit results in a reduction oft he amount of on-street parking that is impacted.
(Added by Ord. 341-98, App. 11/13/98; amended by Ord. 33-02, File No. 020051, App. 3/28/2002; Ord. 163-15
, File No. 150270, App. 9/23/2015, Eff. 10/23/2015, Oper. 1/21/2016)
In instances where administration of this Article or inspection of an excavation is or will be unusually costly to the Department, the Director, in his or her discretion, may require an applicant or permittee to pay any sum in excess of the amounts charged pursuant to Sections 2.4.41 and 2.4.42. This additional sum shall be sufficient to recover actual costs incurred by the Department and shall be charged on a time and materials basis. The Director also may charge for any time and materials costs incurred by other agencies, boards, commissions, or departments of the City in connection with the administration or inspection of the excavation. Whenever additional fees are charged, the Director, upon request of the applicant or permittee, shall provide in writing the basis for the additional fees and an estimate of the additional fees.
(Added by Ord. 341-98, App. 11/13/98)
(a) Street Damage Restoration Fee Adjustment. Within one year after adoption or amendment of the street damage restoration fee set forth in this Subarticle, and every three years thereafter, the Director shall review the proceeds of the street damage restoration fee and any other new information that shall become available, and prepare a report to the Board of Supervisors. Based upon the result of the review, the Director shall recommend to the Board of Supervisors any necessary adjustments to such fee, along with written justification for the recommended adjustment and any necessary legislation. In the event that fee proceeds have exceeded, or are anticipated to exceed, the costs for street repaving and reconstruction reasonably attributable to excavation, the Director shall recommend legislation to the Board of Supervisors that modifies such fee to ensure that fee proceeds do not exceed the costs for street repaving and reconstruction reasonably attributable to excavation. In the event that fee proceeds have undercollected, or are anticipated to undercollect, for the costs for street repaving and reconstruction reasonably attributable to excavation or the City's costs to administer this Article or inspect excavations, the Director may recommend legislation to the Board of Supervisors that modifies the applicable fee to more accurately recover the costs for street repaving and reconstruction reasonably attributable to excavation.
(Added by Ord. 341-98, App. 11/13/98; amended by Ord. 33-02, File No. 020051, App. 3/28/2002; Ord. 151-03, File No. 030830, 6/27/2003)
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