Lemoore Municipal Code Art. C Encroachment Agreement (long Term Encroachments)

The purpose of this article is to establish the process for application, review, and approval of long term encroachments on public property through the execution of encroachment agreements. (Ord. 2012-01, 4-17-2012)

An encroachment agreement shall be required prior to the start of any work or placement of any long term private improvements (other than utilities) on public property including, but not limited to, the following:

A. Permanent cafe or restaurant seating and planters along a public sidewalk within the downtown;

B. Balconies, arcades, galleries, and other portions of buildings within public sidewalks within the downtown; and

C. Other cases of structures encroaching into the public right of way. (Ord. 2012-01, 4-17-2012)

A. Application Contents: Application for an encroachment agreement 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. A copy of the approved planning permit authorizing the encroachment, if any.

4. A copy of the approved building permit authorizing construction of the encroachment, if any.

5. Acknowledgment by the applicant that insurance, indemnification, and performance security requirements must be satisfied prior to an agreement being issued.

6. Payment of an agreement fee as established by resolution of the city council.

B. Approving Processing: The designated approving authority for encroachment agreements shall be the public works director. The approving authority shall execute encroachment agreements after review and recommendation by the planning director for conformance with title 9, "Zoning", of this code and any applicable planning permits, and the building official for conformance with the city adopted building code. (Ord. 2012-01, 4-17-2012)

A. Liability:

1. The applicant for an encroachment agreement shall indemnify and defend 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 agreement. Applicant shall provide a defense for the city in any such action.

2. The above requirement shall be included within the text of the encroachment agreement.

B. Insurance Requirement: As a requirement to execution of an encroachment agreement, the city may require the applicant to hold liability insurance for the duration of the agreement. 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 agreement;

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. (Ord. 2012-01, 4-17-2012)

Encroachments under encroachment agreements shall conform to all applicable development standards of title 9, "Zoning", of this code, the city adopted building code, and any applicable planning permits. (Ord. 2012-01, 4-17-2012)

A. Form Of Encroachment Agreement: Encroachment agreements shall be in a form satisfactory to the city attorney.

B. Execution Of Encroachment Agreement: Encroachment agreements shall be executed by the city manager or designee.

C. Record Of Encroachment Agreement: Encroachment agreements shall be kept on record in the office of the city clerk.

D. Issuance Of Subsequent Permits: No subsequent permit, including, but not limited to, building permits, shall be issued until execution of the encroachment agreement. (Ord. 2012-01, 4-17-2012)

The city may cancel any encroachment agreement for good and sufficient cause, including violation of any provision of this code, the improvement standards, planning permit, building permit, or noncompliance with any condition of approval for the encroachment agreement. (Ord. 2012-01, 4-17-2012)