Richmond Municipal Code Part 3 Private Landowner Encroachment(s) into Unimproved Portions of Public Row

(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.

(Ord. No. 09-22 N.S., § 1, 6-28-2022)

(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 notice need be posted at a prominent and readily visible location;

(2) Notices will be sized 11 by 17 inches and include one-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 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.

(Ord. No. 09-22 N.S., § 1, 6-28-2022)

(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 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 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 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 30 days prior to cancellation or change in said insurance. General Liability insurance with minimum limits of $1,000,000.00 per occurrence and $2,000,000.00 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 $1,000,000.00 for each occurrence and $2,000,000.00 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 feet of a one-way street travel lane, which includes space for a four-foot sidewalk on one side;

(ii) More than 18 feet of two-way street travel lanes, which includes space for a four-foot sidewalk on one side.

(Ord. No. 09-22 N.S., § 1, 6-28-2022)

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 30 days of the City's receipt of a complete application.

(b) At least ten 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 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 days prior to the date of such hearing to all property owners having property, and each residential or other unit, within 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 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.

(Ord. No. 09-22 N.S., § 1, 6-28-2022)