CHAPTER 2.
EXCAVATIONS AND ENCROACHMENTS IN THE PUBLIC RIGHT-OF-WAY*
* Former Chapter 2, “Excavations,” was adopted by Ordinance 221 and originally codified as Sections 24.13 – 24.28 of the Emeryville Town Code. It was subsequently recodified as Sections 7-2.01 – 7-2.13 of this code. Ordinance 00-003 amended the chapter in its entirety. Ordinance 221, as amended by Ordinance 440, were formerly codified in this chapter.
Sections:
7-2.03 Orders, Regulations, Rules and Standards of City
7-2.05 Action on Permit Application
7-2.07 Duration and Validity of Permits; Nontransferability of Permits
7-2.08 Prohibition on Open Trenches
7-2.11 Stop Work Order; Permit Modification; Permit Revocation
7-2.12 Restoration of the Right-of-Way
7-2.14 Emergency Excavations or Encroachments
7-2.16 Identification of Visible Facilities
7-2.17 Relocation of Facilities
7-2.18 Abandonment of Facilities
7-2.19 Coordination of Excavations
7-2.20 Violation of this Chapter
7-2.01 Definitions.
(a) “Applicant” shall mean any owner or duly authorized agent of such owner, who has submitted an application for an encroachment permit.
(b) “City” shall mean the City of Emeryville.
(c) “Department” shall mean the Department of Public Works.
(d) “Deposit” shall mean any bond, cash deposit or other security provided by the applicant.
(e) “Director” shall mean the Director of the Department of Public Works or authorized designee and shall include the term “City Engineer.”
(f) “Encroachment” shall mean any infringement or improvements on, under, over or across the public right-of-way.
(g) “Encroachment agreement” shall mean an agreement between the City and: (1) an applicant that is a utility or other person installing, using or maintaining facilities in the public right-of-way; (2) an applicant that is subject to an ongoing franchise or use fee or franchise or fee agreement; or (3) an applicant for which it is in the City’s best interests to enter into an encroachment agreement.
(h) “Encroachment permit” or “permit” shall mean a written permit to perform an excavation or any other infringement or improvement on, under, over or across the public right-of-way that has been granted by the Department in accordance with this chapter.
(i) “Excavation” shall mean any opening in the surface or subsurface of the public right-of-way.
(j) “Facility” or “facilities” shall mean any and all cables, cabinets, ducts, conduits, converters, equipment, drains, handholds, manholes, pipes, pipelines, splice boxes, surface location markers, tunnels, utilities, vaults and other appurtenances or tangible things owned, leased, operated or licensed by an owner or person that are located or proposed to be located in the public right-of-way.
(k) “Owner” shall mean any person, corporation, partnership, agency or other entity who owns facilities that are or proposed to be installed or maintained in the public right-of-way.
(l) “Overlay” shall mean an application of at least one and one-half inches (1½”) thickness of asphaltic concrete on the street surface.
(m) “Permittee” shall mean the applicant to whom an encroachment permit has been granted by the Department in accordance with this chapter, and includes the owner.
(n) “Person” shall mean any natural person, corporation, partnership, governmental agency or any other entity.
(o) “Public right-of-way” shall mean the area across, along, beneath, in, on, over, under, upon or within the dedicated public alleys, boulevards, courts, curbs, easements, lanes, paths, places, roads, sidewalks, streets and ways within the City of Emeryville, as they now exist or hereafter will exist and that are under the permitting jurisdiction of the Department.
(p) “Slurry seal” shall mean an asphaltic emulsion with a sand aggregate that is used to “seal” the street from surface water and replaces the fine aggregate at the surface of the street.
(q) “Utility” shall mean any person owning, operating or installing in the public right-of-way facilities for providing water, sewer, gas, electric, telecommunication, cable, traffic controls, transit service, steam, video, Internet or other utility services.
(Sec. 2 (part), Ord. 00-003, eff. July 21, 2000)
7-2.02 Permit Required.
(a) No person shall make, cause or permit to be made any excavation in the public right-of-way or make any improvements on, under, over or across the public right-of-way without first obtaining an encroachment permit from the Department, with the exception of projects undertaken by the City. No encroachment permit shall be issued if the applicant does not have legal authority to occupy and use the public right-of-way for the purposes identified in the application.
(b) The Director shall require an applicant to enter into an encroachment agreement with the City if: (1) the applicant is a utility or other person installing, using or maintaining facilities in the public right-of-way; (2) the applicant is subject to an ongoing franchise or use fee or franchise or fee agreement; or (3) it is in the City’s best interests to enter into an encroachment agreement. An encroachment agreement may not obviate the need for an encroachment permit.
(Sec. 2 (part), Ord. 00-003, eff. July 21, 2000)
7-2.03 Orders, Regulations, Rules and Standards of City.
In addition to the requirements set forth in this chapter, the Department shall adopt such orders, regulations, rules or standards as it deems necessary in order to preserve and maintain the public health, safety, welfare and convenience. All work in the public right-of-way pursuant to this chapter shall be performed in accordance with such orders, regulations, rules or standards, except when the Director grants prior written approval to deviate from such orders, regulations, rules or standards due to the given circumstances and in the best interests of the City. These standards shall include compaction, backfill and pavement restoration requirements.
(Sec. 2 (part), Ord. 00-003, eff. July 21, 2000)
7-2.04 Permit Application.
Any person requiring a permit pursuant to this chapter shall submit an application in the format and manner specified by the Director and shall include:
(a) The name, address, telephone number and facsimile number of the applicant, owner and contractor. A telephone number shall be provided for a twenty-four (24) hour contact.
(b) A description of the location, purpose, method of construction and surface area of the proposed excavation or encroachment.
(c) A plan showing (1) the proposed location and dimensions of the excavation or encroachment and the facilities to be installed, maintained or repaired in connection with the excavation or encroachment, (2) the location, species, trunk diameter at four and one-half feet (4-1/2') above normal grade, and drip line (as defined in Section 7-10.03) of all street trees within the excavation or encroachment area, (3) a bold dashed line denoting a fenced enclosure area out to the drip line of each street tree(s) within the excavation or encroachment area to be protected, (4) a red “X” over each street tree(s) within the excavation or encroachment area to be removed, and (5) such other details as the Department may require. The applicant shall provide as-built drawings prior to the issuance of a notice of completion as required by the Department.
(d) A tree disclosure statement on a form provided by the Department regarding all street trees within the excavation or encroachment area.
(e) An appraisal of the replacement value fee (as defined in Section 7-10.03) of all street trees to be protected and removed within the excavation or encroachment area.
(f) The proposed start of work and estimated duration, including the duration of the restoration of the public right-of-way disturbed by the excavation or encroachment.
(g) Documentation of the franchise, easement, permit, license, statute or other legal instrument that authorizes the owner to use or occupy the public right-of-way for the purpose described in the application. If the owner is not the applicant, then the applicant must also provide written authorization to act on behalf of the owner.
(h) Documentation showing that the contractor undertaking the work has the appropriate license under the State of California.
(i) Written certification that all material to be used in the work, including materials for the restoration of the public right-of-way, will be on hand and ready to use prior to any portion of the work beginning.
(j) Written certification that the applicant and owner are in compliance with all terms and conditions of this chapter, as well as the Department orders, regulations, rules and standards; and that the applicant and owner are not subject to any outstanding assessments, fees, penalties or other charges of the City.
(k) Written certification of the value of the work to be undertaken.
(l) A current business license tax certificate for the owner and applicant issued by the City.
(m) Evidence of payment of the deposit for the administrative/inspection fee; performance security; and any other appropriate fees or charges.
(n) Evidence of insurance for the owner, applicant and/or contractor as specified by the Department.
(o) Evidence of appropriate environmental or safety review, such as an approved health and safety plan.
(p) Any other information that may reasonably be required by the Department.
(Sec. 2 (part), Ord. 00-003, eff. July 21, 2000; Sec. 3 (part), Ord. 10-003, eff. May 6, 2010)
7-2.05 Action on Permit Application.
(a) After receipt of an application for an encroachment permit, the Department shall determine whether the application is complete. If the application is deemed to be incomplete, the Department shall advise the applicant in writing of the reasons for rejecting the application as incomplete.
(b) If the application is deemed complete, the Director shall deny, approve or conditionally approve the application. In order to preserve and maintain the public health, welfare, safety and convenience, the Director may condition a permit with specified requirements including, but not limited to, those that limit or modify the facilities to be installed or maintained, the location of the facilities to be installed or maintained and the time, place and manner of excavation.
(c) An application shall be denied or conditionally approved if there is no longer capacity in the public right-of-way or if there is no longer capacity in the public right-of-way without jeopardizing the City’s ability to undertake future public projects including but not limited to undergrounding overhead utilities pursuant to Chapter 4 of Title 7.
(d) An application may be denied for the following reasons:
(i) If previous work done by the applicant or owner was not done in the manner prescribed by this chapter or such person has willfully failed to comply with the requirements of this chapter. An applicant who continues to be in willful noncompliance with an already issued encroachment permit may not apply for any subsequent encroachment permit until the applicant comes into compliance or if the Director waives this prohibition.
(ii) If the applicant does not have the legal authority to occupy and use the public right-of-way for the purposes identified in the application.
(iii) Failure to comply with the requirements of this chapter, including standards for excavation and backfilling adopted by the Department.
(iv) The application area is subject to the moratorium on excavations pursuant to this chapter.
(v) It is determined not to be in the best interests of the City.
(e) If the application is denied, the Department shall advise the applicant in writing.
(f) If the application is approved or conditionally approved, the Department shall issue a permit to the applicant, which shall be kept at the job site at all times and be presented upon demand.
(g) The permit shall be limited to the location, extent of excavation or encroachment, time, duration and purpose set forth in the application unless otherwise conditioned in the permit.
(h) Issuance of a permit pursuant to this chapter is in no way a precedent for any other permit, agreement or encroachment or waiver of any franchise fee.
(Sec. 2 (part), Ord. 00-003, eff. July 21, 2000)
7-2.06 Commencement of Work.
Permittee shall notify the Director within two (2) working days prior to commencing work under a permit.
(Sec. 2 (part), Ord. 00-003, eff. July 21, 2000)
7-2.07 Duration and Validity of Permits; Nontransferability of Permits.
Permits shall be void if construction is not begun within thirty (30) calendar days of the date of the permit or if the work has not been completed within the specified duration. The Director may extend the permit upon written request of the permittee. Permits are not transferable.
(Sec. 2 (part), Ord. 00-003, eff. July 21, 2000)
7-2.08 Prohibition on Open Trenches.
No trench shall be left open at the end of a work day unless steel plated in accordance with the Department’s standards.
(Sec. 2 (part), Ord. 00-003, eff. July 21, 2000)
7-2.09 Permit Provisions.
Encroachment permits issued by the Department shall address: responsibility of the owner and applicant; indemnification of the City; insurance and bonding requirements for the applicant and owner; deposit and fee requirements; warranty of work for two (2) years; participation in coordination efforts pursuant to this chapter; safety requirements; traffic control; cleaning of area; signage; notification to the Underground Service Alert; restoration standards; abandonment; submittal of as-built plans; inspection; relocation; work hours; technical requirements and any other conditions deemed in the City’s best interests.
(Sec. 2 (part), Ord. 00-003, eff. July 21, 2000)
7-2.10 Fees; Deposits; Bonds.
(a) Application and Inspection Fees. Prior to the issuance of an encroachment permit, applicants shall be required to deposit the estimated fee for administrative review and inspection of the work in accordance with the Department’s fee schedule and the replacement value fee of all street trees to be removed within the excavation or encroachment area. Upon the completion of the work, the City shall refund to the permittee any amount of the deposit that remains in excess of the estimated fee for administrative review and inspection of the work. If the fees for administrative review and inspection exceed the amount of the deposit, the permittee shall submit the additional amount within five (5) business days of notification from the City. The replacement value fee shall be deposited into the Urban Forestry Account.
(b) Performance Security for Encroachment Permits. Prior to the issuance of an encroachment permit and in order to ensure the completion of the work in accordance with the requirements of this chapter, applicant shall be required to: deposit one thousand dollars ($1,000.00) with the City; provide a performance bond in the amount of three (3) times the replacement value fee of all street trees within the excavation or encroachment area to be protected as determined by the appraisal plus ten thousand dollars ($10,000.00) that is issued by a surety admitted to do such business in the State of California and on the form provided by the City; or provide other security acceptable to the Director.
(c) Performance and Warranty Security for Encroachment Agreements. Performance and warranty security for encroachment agreements shall be in accordance with the agreement, which may exceed the amounts set forth in subsection (b) of this section, and as determined to be in the best interests of the City.
(d) Additional Fees. In the instances when administration of this chapter or inspection will be unusually costly to the Department, the Director may require the applicant to pay an additional sum in excess of the amount charged elsewhere in this chapter. Upon the completion of the work, the City shall refund to the permittee any amount of the additional fees that remain in excess. If the costs incurred by the City exceed the amount of the additional fees, the permittee shall submit the additional amount within five (5) business days of notification from the City.
(Sec. 2 (part), Ord. 00-003, eff. July 21, 2000; Sec. 3 (part), Ord. 10-003, eff. May 6, 2010)
7-2.11 Stop Work Order; Permit Modification; Permit Revocation.
The Director may issue a stop work order, impose new conditions on the permit or revoke a permit if the Director has determined that a person has violated this chapter or any condition of the permit; that an excavation poses a hazardous situation or constitutes a public nuisance, public emergency or threat to the public health, safety or welfare; or when the Director determines that it is in the City’s best interests.
(Sec. 2 (part), Ord. 00-003, eff. July 21, 2000)
7-2.12 Restoration of the Right-of-Way Prior to Completion of the Work.
(a) Every permittee excavating or encroaching on the public right-of-way shall undertake such work diligently and restore the right-of-way to a like new condition.
(b) The Department shall adopt standards for the restoration and backfilling of excavations within the public right-of-way, with which every permittee must comply, unless waived in writing by the Director in the best interests of the City.
(c) Prior to completion of the work, permittee shall immediately notify the Department in order for the work to be inspected. If the work meets the requirements of this chapter, including any permit conditions, then such notice of completion shall be noted on the application or otherwise in writing.
(d) If the work is not completed within the time required or is not acceptable, then the Director shall notify the permittee in writing. Within forty-eight (48) hours of such notice, permittee shall restore the work so it meets the requirements of this chapter, including any permit conditions, and remedy all deficiencies including subsurface material or pavement becoming depressed, broken or otherwise failing. If the permittee fails to do the restoration or backfill work after such notice, then the City may undertake such work at the expense of the permittee and/or owner. The Director’s determination of the cost of the work performed shall be final. If the permittee fails to compensate the City within five (5) business days of notification, then the City can take whatever actions are necessary to recover its damages, costs and expenses, including but not limited to withholding the amount due with payment made from the performance deposit or any remaining administrative or inspection fee amounts, commencing an action against the bond. Repair or restoration by the City shall not relieve the permittee and owner from any and all liability at the site of the repair or restoration including but not limited to future failures.
(e) The City may undertake the incomplete or inadequate restoration or repair work at the expense of the permittee and/or owner without notification to the permittee, if the Director has determined that a person has violated this chapter or any condition of the permit; that an excavation poses a hazardous situation or constitutes a public nuisance, public emergency or threat to the public health, safety or welfare; or when the Director determines that it is in the City’s best interests.
(Sec. 2 (part), Ord. 00-003, eff. July 21, 2000)
7-2.13 Warranty.
(a) Permittee’s work shall be warranted for two (2) years to ensure the continued compliance with the requirements of this chapter, including the conditions of any encroachment permit.
(b) The permittee and owner shall be responsible for continual inspection of the work during the warranty period to ensure that if deficiencies arise in the work, such as subsurface material or pavement becoming depressed, broken or otherwise failing, that these deficiencies will be remedied immediately. Any other deficiencies in the work shall be remedied within forty-eight (48) hours of notification by the Department. If the deficiencies are not remedied, then the City shall repair or restore, or cause to be repaired or restored, such deficiencies in such manner as the Director deems expedient and appropriate at the expense of the owner and/or permittee. The Director’s determination of the cost of the repair or restoration performed shall be final. If the permittee fails to compensate the City within five (5) business days of notification, then the City can take whatever actions are necessary to recover its damages, costs and expenses, including but not limited to withholding the amount due with payment made from the performance deposit or any remaining administrative or inspection fee amounts, commencing an action against the bond. Repair or restoration by the City shall not relieve the permittee and owner from any and all liability at the site of the repair or restoration including but not limited to future failures.
(c) The City may undertake the restoration or repair work at the expense of the permittee and/or owner without notification to the permittee, if the Director has determined that a person has violated this chapter or any condition of the permit; that an excavation poses a hazardous situation or constitutes a public nuisance, public emergency or threat to the public health, safety or welfare; or when the Director determines that it is in the City’s best interests.
(Sec. 2 (part), Ord. 00-003, eff. July 21, 2000)
7-2.14 Emergency Excavations or Encroachments.
Nothing contained in this chapter shall be construed to prevent any person from taking action necessary for the preservation of life or property when such necessity arises during days or times when the Department is closed. The Department shall be notified as soon as possible of such work, but in any event within two (2) hours after the Department’s offices are first opened. Upon notification to the Department, the person shall submit an application for a permit for the work. Any emergency work done shall be limited to preservation work and not expanded without first obtaining a permit. Excavations done pursuant to this section shall be subject to all fees and requirements of this chapter.
(Sec. 2 (part), Ord. 00-003, eff. July 21, 2000)
7-2.15 Moratorium Areas.
Permission to excavate in newly constructed, repaved, overlaid or resurfaced streets shall not be granted for five (5) years after completion of the work as evidenced by the filing of a notice of completion, with the exception of:
(a) Emergency work that is necessary for the preservation of life or property.
(b) Work that is necessary to avoid interruption of essential utility service.
(c) Work that is mandated by City, State or Federal legislation, including but not limited to the replacement of building sewer laterals required by Chapter 8 of Title 7.
(d) Work that is necessary to provide service for buildings where no other reasonable means of providing essential utility service exist.
(e) Work when the permittee agrees to slurry seal the entire width of the street for the length of the excavation or pay the City to do this overlay work.
(f) Other situations deemed by the Director to be in the best interest of the City.
All permits that are issued under the exceptions set forth above shall be in accordance with all other requirements of this chapter.
(Sec. 2 (part), Ord. 00-003, eff. July 21, 2000; Sec. 4, Ord. 11-004, eff. June 2, 2011)
7-2.16 Identification of Visible Facilities.
Each visible facility in the public right-of-way shall be clearly identified with the name of the owner of the facility, in accordance with Department rules or standards.
(Sec. 2 (part), Ord. 00-003, eff. July 21, 2000)
7-2.17 Relocation of Facilities.
(a) Within thirty (30) days of receipt of a written request from the City, permittee and/or owner shall relocate its facilities at its sole cost and expense if the facility interferes with a project of the City of Emeryville or Emeryville Redevelopment Agency.
(b) Within thirty (30) days of receipt of a written request from the City, permittee and/or owner shall at its sole cost and expense locate any subsurface facility by potholing when required by the City for the purpose of confirming the location of existing facilities in order to design or construct public facilities.
(Sec. 2 (part), Ord. 00-003, eff. July 21, 2000)
7-2.18 Abandonment of Facilities.
(a) Whenever a facility is abandoned in the right-of-way, the person owning, using, controlling or having an interest in the facility shall within thirty (30) days after such abandonment file a statement in writing with the Department, including a detailed description of the facility’s location, including a map and/or plans.
(b) Any facility not occupied within three (3) years from the date of final inspection shall be deemed abandoned. Substructures shall be considered occupied so long as there are active facilities in at least one (1) of the ducts of the substructure.
(c) Upon abandonment, the City may require the facility to be removed by the owner at its own expense or, at the City’s discretion, all or part of the facility may be abandoned in place with ownership deemed to be transferred to and vested in the City at no cost to the City.
(Sec. 2 (part), Ord. 00-003, eff. July 21, 2000)
7-2.19 Coordination of Excavations.
(a) Any utility owning, operating or installing in the public right-of-way facilities for providing water, sewer, gas, electric, telecommunication, cable, traffic controls, transit service, steam, video, Internet or other utility services shall prepare and submit to the Director a utility master plan, in the format specified by the Director and including maps, that shows the location of the utility’s existing facilities in the public right-of-way and shows the utility’s planned major work exceeding fifteen (15) calendar days in duration or one hundred (100) feet to be excavated in the right-of-way for the next five (5) years. Utilities shall submit the initial master plan within ninety (90) days after the effective date of the ordinance codified in this chapter and prior to the issuance of any encroachment permit. Each utility shall then submit an annual update by July 1 of each year.
(b) The Director shall prepare a five (5) year street construction and repaving plan that will be updated on an annual basis after receipt of the updated utility master plans and to address changed circumstances. The Director shall make the five (5) year construction and repaving plan available for public inspection and shall send it to all utilities that have submitted a utility master plan.
(c) Prior to applying for an encroachment permit, the applicant shall coordinate to the greatest extent possible with the utility and street work shown on five (5) year construction and repaving plans in order to avoid undue disruption and interference with the public use of the public right-of-way.
(d) Pursuant to an encroachment agreement with the City and in order to reduce the number of street excavations, utilities shall cooperate in planning, locating and constructing utility joint trenches with other similar utilities and/or the City by:
(i) Placing additional similar conduits or other facilities, which shall then be made available to third parties at a fair market value on a first-come, first-served, nondiscriminatory basis.
(ii) Allowing other utilities to place their facilities in any trenches that have not been completed at the time the request is made assuming that an agreement can be reached regarding cost-sharing for the joint trench.
(e) Utilities shall participate in meetings with the City and other utilities to better facilitate coordination of activities.
(Sec. 2 (part), Ord. 00-003, eff. July 21, 2000)
7-2.20 Violation of This Chapter.
The Director shall have authority to enforce the provisions of this chapter. The Director shall serve written notice on any person to abate a violation of this chapter; Department orders, rules, regulations and standards; the terms and conditions of any permit; or requirement to deposit fees or other charges. Any person responsible for violating this chapter may be subject to the penalties specified in this Code and chapter.
(Sec. 2 (part), Ord. 00-003, eff. July 21, 2000)
7-2.21 Remedies; Penalties.
The City may seek any or all of the following remedies in the event of a violation of any provision of this chapter; the Department’s orders, rules, regulations and standards; or any term, condition or limitation of any permit:
(a) Public Nuisance. As set forth in Section 1-2.01(c), any violation of the provisions of this chapter shall be deemed a public nuisance and may be abated in accordance with Chapter 11 of Title 6.
(b) Administrative Penalties.
(i) The Director shall notify the person responsible for a violation that he or she has forty-eight (48) hours to correct or otherwise remedy the violation or be subjected to the imposition of administrative penalties. For violations that create an immediate threat to the public health, safety or welfare, or are otherwise subject to emergency remediation or abatement, the person responsible shall be notified that they must immediately remedy the violation or be subjected to the imposition of administrative penalties.
(ii) Administrative penalties assessed pursuant to subsection (a) shall not exceed five hundred dollars ($500.00) per day, per violation until the violation is corrected or otherwise remedied to the satisfaction of the Director or the assessed penalty paid. In assessing the administrative penalty, the Director may consider any one or more of the following: the nature and seriousness of the misconduct, the persistence of the misconduct, the length of time over which the misconduct occurred, the willfulness of the violator’s misconduct and the violator’s assets, liabilities and net worth.
(iii) In addition to the administrative penalty assessed pursuant to subsection (a), the Director may assess enforcement costs to cover the reasonable costs incurred in enforcing the administrative penalty, including reasonable attorneys’ fees.
(iv) If the person designated as responsible fails to remedy the violation within the time specified in the notice, then the Director shall notify the person in writing of the imposition of penalties and costs and declare that such penalties and costs are due and payable to the City within thirty (30) days.
(v) Any person who has been assessed administrative penalties and costs may seek administrative review by filing an appeal with the City Manager or designee within ten (10) days of the date of notice of the imposition of the penalties. The appeal shall specify the details of the appeal. If no appeal is filed within the ten (10) days, then the Director’s determination is final and the Director is authorized to pursue any method of collection authorized by local law, including deductions of permittee’s deposit.
(vi) With ten (10) days of receipt of an appeal, the affected parties shall be notified by certified and regular mail of a date, time and place for the City Manager or designee to hear the appeal. The parties to the hearing may submit written information for prior consideration.
(vii) The hearing will not be conducted in accordance with the formal rules of evidence, but a written decision will be rendered within ten (10) days of the hearing. The decision of the City Manager or designee shall be final.
(c) Civil Penalties.
(i) The Director may call upon the City Attorney to maintain an action for injunction, summary abatement or abatement of any violation of this chapter, and for assessment and recovery of a civil penalty and reasonable attorneys’ fees for such violation.
(ii) Any person who violates this chapter may be liable for a civil penalty, not to exceed five hundred dollars ($500.00) per day per violation, which penalty shall be assessed and recovered in a civil action brought in the name of the City by the City Attorney in any court of competent jurisdiction. In assessing the amount of the civil penalty, the court may consider any one or more of the following: the nature and seriousness of the misconduct, the persistence of the misconduct, the length of time over which the misconduct occurred, the willfulness of the violator’s misconduct and the violator’s assets, liabilities and net worth. The City Attorney may also seek recovery of attorneys’ fees and costs incurred in bringing a civil action pursuant to this section.
(iii) In undertaking enforcement of this chapter, the City is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its officers and employees, any obligation for which the City is liable in money damages to any person who claims that any breach of duty related to or arising form this chapter proximately caused their injury.
(d) Criminal Penalties. The City may institute criminal proceedings in the enforcement of this chapter as set forth in Chapter 2 of Title 1 of this Code.
(Sec. 2 (part), Ord. 00-003, eff. July 21, 2000)