Lemoore Municipal Code Ch. 12 Encroachments

ARTICLE A. PURPOSE, APPLICABILITY, AND DEFINITIONS

SECTION:

This chapter establishes regulations for and the process to allow encroachments on public property, including within the public right of way. The purpose of these regulations and permit processes is to establish standards for the protection of the public health, safety, and general welfare, including traffic and pedestrian safeguards. (Ord. 2012-01, 4-17-2012)

It shall be unlawful for any person to place, erect, or maintain, or to permit the placement, erection, maintenance, or existence of any encroachment upon, over, or under any public property without prior approval from the city. The city provides for two (2) types of encroachments into the public right of way as described below and provided in articles B and C of this chapter:

A. Encroachment permits: Short term encroachments, such as construction fencing, concrete, utility installation and replacement, awnings, and semipermanent fencing; and

B. Encroachment agreements: Long term and permanent encroachments, such as outdoor seating along public sidewalks, planters, decks, columns, balconies, fencing, and other structures, primarily in the downtown. (Ord. 2012-01, 4-17-2012)

For the purposes of this chapter, the following terms, phrases, and words shall have the following definitions:

CITY MANAGER: The city manager of the city, or his or her designee.

ENCROACHMENT: Going upon, over, or under public property, or placing any facility upon, along, across, over, or under public property, or using any public property in such a manner as to prevent, obstruct, or interfere with the use of that public property. Encroachments include, but are not limited to, buildings, fences, signs, trees, plants, and underground facilities, or any excavations on public right of way.

FACILITY: Any pipe, pipeline, tube, hose, main, service, trap, vent, manhole, meter, gauge, regulator, valve, conduit, wire, tower, pole, pole line, anchor, cable, junction box, transformer, or any other material, structure, public improvement, or object of any kind or character, including a building, portion of a building, or any other structure, whether enumerated herein or not, which is or may be lawfully constructed, used, operated, left, placed, or maintained in, upon, along, across, under, or over any public right of way.

IMPROVEMENT STANDARDS: The city adopted standard specifications for public works improvements as adopted by the city council and as may be amended from time to time.

PUBLIC PROPERTY: Public street, roadway, place, alley, sidewalk, parkway, square, plaza, right of way, or any other similar public property dedicated to public use.

PUBLIC WORKS DIRECTOR: The public works director of the city, or his or her designee.

UTILITY: Any private company and/or corporation operating under regulation of the public utilities commission, or municipal/county department or other governmental agency engaged in providing a particular service to the general public. (Ord. 2012-01, 4-17-2012)

ARTICLE B. ENCROACHMENT PERMIT (SHORT TERM ENCROACHMENTS)

SECTION:

The purpose of this article is to establish the standards for and the process for reviewing and deciding encroachment permits for short term encroachments within and on public property. (Ord. 2012-01, 4-17-2012)

An encroachment permit shall be required prior to the start of any work by any utility, agency, or private party, other than the city, on public property within the public right of way including, but not limited to, the following:

A. Trenching across public right of way for installation of water, sewer, storm drain, cable, and other underground utilities;

B. Construction of curb, gutter, sidewalk, driveway, and roadway pavement;

C. Traffic and pedestrian control measures related to construction within or adjacent to the public right of way;

D. The use and crossing of existing public sidewalks by construction equipment (e.g., front loaders, bobcats, forklifts) during the construction of a new building, for additions to existing buildings, or landscaping or grading; and

E. Awnings over sidewalks in downtown or semipermanent fencing in residential areas. (Ord. 2012-01, 4-17-2012)

The designated approving authority for encroachment permits may issue a blanket encroachment permit for utilities to conduct work, including ongoing or emergency repairs or replacement of equipment, on or within public property. Such blanket permits shall only be issued on a yearly basis and shall only authorize excavation or work on existing facilities. Blanket permits shall not be issued for installation of new facilities. (Ord. 2012-01, 4-17-2012)

A. Application Contents: Application for an encroachment permit shall be made to the department of public works and shall include all of the following:

1. An application form, as provided by the department of public works.

2. Plans or sketches necessary to describe the encroachment.

3. If required prior to the permit being issued, agreement by the applicant that insurance, indemnification, and performance security requirements must be satisfied prior to a permit being issued.

4. Payment of a permit fee as established by resolution of the city council.

B. Approving Authority, Permit Issuance, And Expiration: The designated approving authority for encroachment permits shall be the public works director. The approving authority may impose conditions on the permit in order to ensure the safety of the public and to protect and preserve the public property.

The permit, if issued, will be prepared and issued when fees have been paid, insurance documents and performance security have been reviewed and accepted, and the applicant has signed the permit. Each permit shall identify an expiration date by which all work shall be completed and the encroachment shall be vacated. The approving authority may grant extensions of time, provided satisfactory reasons for issuance of an extension are presented by the applicant as determined by the approving authority. (Ord. 2012-01, 4-17-2012)

A. Liability:

1. The applicant for an encroachment permit shall defend, indemnify, and hold harmless the city, its council members and other elected and appointed officials, officers, agents, employees, and representatives from liability for any award, damages, costs, and fees incurred by the city and/or awarded to any plaintiff in an action arising out of or in connection with the applicant's work to be performed under the encroachment permit. Applicant shall provide a defense for the city in any such action.

2. The above requirement shall be included on the application form for the encroachment permit and the applicant shall acknowledge this requirement prior to approval of the encroachment permit by the designated approving authority.

B. Insurance Requirement: The approving authority may require the applicant to obtain, prior to issuance of the encroachment permit, and maintain for the duration of the permit, liability insurance coverage. The insurance shall meet the following minimum requirements; however, the city manager may reduce or waive these requirements if, in his or her opinion after consultation with the city's risk management agent, a lesser degree of insurance would still provide adequate protection to the city given the nature of the project:

1. The insurance shall be commercial liability coverage at least as broad as CG 00 01 or its equivalent;

2. Coverage is provided by a commercial carrier with no less than an A.M. Bests' rating of A:VII;

3. Any self-insured retention or deductible amount shall be disclosed and approved by the city prior to the issuance of the encroachment permit;

4. Liability limits of no less than one million dollars ($1,000,000.00) per occurrence and a two million dollar ($2,000,000.00) aggregate; and

5. With an endorsement naming the city of Lemoore as an additional insured.

C. Performance Surety: The applicant shall provide performance surety for the work covered under the encroachment permit in a form acceptable to the public works director, including, but not limited to, cash, a bond, letter of credit, or other acceptable mechanism. The amount of the surety shall be as established in the improvement standards so as to reimburse the city for the costs of restoring the public property to either its original condition or to complete the work in the event the applicant fails to do so. (Ord. 2012-01, 4-17-2012)

A. Traffic Routing And Protection:

1. It shall be the applicant's responsibility to place and maintain barriers and warning devices necessary for safety of the general public.

2. Barriers, signs, lights, and other warning and safety devices shall comply with the requirements of the "Manual Of Warning Signs, Lights, And Devices For Use In Performance Of Work Upon Highways", issued by the state of California, department of transportation, and any additional requirements as specified by the approving authority.

3. The applicant shall take appropriate measures to ensure that during the performance of construction work on streets, traffic conditions are as near normal as practicable at all times so as to minimize inconvenience to the occupants of the adjoining property and to the general public. The applicant shall conform to the requirements of the improvement standards, as applicable. The applicant shall provide a traffic control plan to be approved by the public works director when requested by the approving authority.

4. When traffic conditions permit, or the extent of the work requires, the approving authority may, by written approval, permit the closing of streets and alleys to all traffic for a period of time as prescribed by the approving authority. The approval may require that the applicant provide approved detours and give notification to various public agencies and to the general public. In such cases, the approval shall not be valid until notice is given. Prior to issuance of the written approval, the applicant shall prepare a traffic detour plan for review and approval by the approving authority.

B. Structural Clearance: The encroachment shall be performed and conducted so as to not unreasonably interfere with access to fire hydrants, fire stations, fire escapes, water valves, sewer manholes, underground vaults, valve housing structures, and all other vital equipment designated by the approving authority.

C. Protection And Relocation Of Existing Utilities:

1. The applicant shall inform themselves as to the existence and location of all utility facilities likely to be encountered by their operations. Applicants shall contact an underground service alert service and provide the ticket number for the project and contact phone number for the service on all project plans.

2. The emergency contact names and phone numbers for all utility providers in the area of the work to be performed under the permit shall be printed on all plans.

3. All utility facilities affected by any excavation or other construction work shall be supported and protected by the applicant with methods approved by the utility facility owner. Should an existing facility be damaged by the applicant's operations, and for this purpose pipe coating or other encasement or devices are to be considered as part of a facility, the applicant shall promptly notify the owner of the damaged facility. All facilities damaged by the applicant's operations shall be repaired as directed by the owner and the expense of such repairs shall be charged to the applicant.

4. Unless the law otherwise provides, relocation of an existing utility facility shall be performed in accordance with a plan approved by the utility owner. No facility owned by the city shall be moved to accommodate the applicant's project unless the cost of such work is borne by the applicant and the work is approved by the city.

D. Abandonment Of Existing Facilities:

1. Whenever a facility is abandoned, except the abandonment of service lines designed to serve single properties, the person owning, using, controlling, or having an interest therein shall file with the approving authority a drawing or written statement indicating, in detail, the location of the facility to be abandoned. At the time of such abandonment, the approving authority may determine what portion, if any, of the abandoned facility shall be removed or otherwise treated.

2. Whenever a driveway approach is abandoned, or can no longer be justified by the use made of the abutting property, the approving authority may require removal of any associated driveway, apron, or curb depression, and restoration of any existing curb, gutter, or sidewalk across the driveway width.

E. Site Cleanup: The applicant shall regularly clean the work area of earth, rock, rubbish, and other debris. All cleanup operations shall occur at the expense of the applicant and meet national pollutant discharge elimination system (NPDES) standards and be to the satisfaction of the approving authority.

F. Protection Of Watercourses: The applicant shall provide and maintain adequate waterways for all surplus water, including stormwater, runoff pumped from excavations, flushings, or other water resulting from the applicant's operations. All water leaving the site shall conform to the national pollutant discharge elimination system (NPDES) and local, state, and federal laws and regulations regarding pollution prevention.

G. Preservation Of Monuments: No monument set for the purpose of locating or preserving the lines of any street, property, or subdivision, including precise survey reference points or permanent survey bench marks within the city, shall be removed or disturbed by any person who has not first obtained written permission from the approving authority. Permission to remove, disturb, or replace monuments shall only be granted upon the condition that the removal, disturbance, or replacement of any monument be done under the supervision of a registered civil engineer or licensed land surveyor. Any expenses incurred by the city for the proper replacement of monuments shall be paid by the applicant. (Ord. 2012-01, 4-17-2012)

It is unlawful for a person to place, erect, or maintain, or to permit the placement, erection, maintenance, or existence of any encroachment after the encroachment permit has expired or after the encroachment permit has been revoked. (Ord. 2012-01, 4-17-2012)

The designated approving authority is authorized to cancel any permit for good and sufficient cause, including violation of any provision of this code, the improvement standards, or noncompliance with any condition of approval for the encroachment permit. (Ord. 2012-01, 4-17-2012)

In the event the application for the permit is denied in whole or in part, or the conditions imposed by the approving authority are unacceptable to the applicant, the applicant may appeal the decision to the city council within ten (10) days of receiving notice of the decision.

Appeals shall be in writing, shall state the specific reasons and grounds asserted for relief, and shall be filed with the city clerk within ten (10) calendar days after the date of the action being appealed. If an appeal is not filed within the time or in the manner prescribed above, the right to review of the action against which the complaint is made shall be deemed to have been waived. (Ord. 2012-01, 4-17-2012)

A. Inspections: The public works director shall make inspections and shall establish rules and regulations reasonably necessary to enforce and carry out the intent of this article.

B. Enforcement: This article shall be enforced pursuant to the provisions of title 1, chapter 4, "Penalty Provisions", of this code. (Ord. 2012-01, 4-17-2012)