Article 10-20

ENCROACHMENTS*

Sections:

For the purposes of this Article, the following words and phrases shall have the meaning respectively ascribed to them in this Section:

(a) Encroachment means any (i) excavation, (ii) structure, object or improvement of any kind or character whatsoever, or (iii) materials, equipment or temporary structure of any kind, placed, erected or constructed, either in, under or over any public street on a temporary or permanent basis, including, without limiting the foregoing, any pipe, drain or conduit under or across any street, road or highway, or any advertising sign or device on or extending over any part of a public street.

(b) Public street means all or any part of the entire width of right-of-way of a public street in the City or of any unaccepted street offered for dedication to the City, whether or not such entire area is actually used or improved for street purposes.

*Editor’s note— Ord. No. 360, § 5(Exh. A), adopted December 5, 2018, repealed the former Art. 10-20., §§ 10-20.010—10-20.110, and enacted a new Art. 10-20 as set out herein. The former Art. 10-20 pertained to similar subject matter and derived from the 1992 Code.

(c) Person means any natural person or other entity with capacity to take action recognized by law including, but not limited to, an agency, public utility, firm, association, organization, partnership, trust, corporation or company.

(Ord. No. 360, § 5(Exh. A), 12-5-2018; Ord. No. 413, § 1(Exh. A, § 15, 11-5-2025)

(a) No encroachment shall be created, erected, constructed, placed or permitted to remain contrary to the provisions of this Article or any other provision of this Code. The existence of any such encroachment is hereby declared to constitute a public nuisance.

(b) Any person causing, creating, erecting, constructing, placing or permitting an encroachment contrary to the provisions of this Article or any other provision of this Code shall be guilty of a misdemeanor. Such person shall remove or abate the encroachment within ten days after a notice from the City to do so in addition to any other fees or penalties that may be due. If the encroachment is not removed, it may be removed or otherwise abated by the City in accordance with the procedures set forth in Chapter 3 of this Code. (Ord. No. 360, § 5(Exh. A), 12-5-2018; Ord. No. 413, § 1(Exh. A, § 15, 11-5-2025)

Except as provided in Section 10-20.040, no person shall do or cause to be done any of the following acts without first obtaining a written permit therefor from the City:

(a) Causing, creating, erecting, constructing, placing or permitting an encroachment on a public street.

(b) Permit the continuation of, perpetuate, change, or renew any encroachment existing on a public street, which encroachment does not have a permit therefor in accord with the terms of this Article.

(Ord. No. 360, § 5(Exh. A), 12-5-2018)

No encroachment permit shall be required for any of the following:

(a) The installation of aboveground utilities for electricity, telephone or cable television service.

(b) The planting or placing of lawns, plants, shrubs, trees, temporary fences and other removable landscaping by the owner of the underlying fee within the unim-

(Saratoga Supp. No. 57, 1-26)

203

10-20.040

proved portions of a street right-of-way but to the rear of any curb and gutter. Such landscaping shall be at the risk of the owner and shall be removed by such owner from such right-of-way upon ten days' written notice from the City. Failure to so remove shall make the encroachment and the owner subject to the provisions of Section 10-20.020.

(c) Encroachments shown on a subdivision map approved by the City Council. (Ord. No. 360, § 5(Exh. A), 12-5-2018; Ord. No. 413, § 1(Exh. A, § 15, 11-5-2025)

The Public Works Director is authorized to issue encroachment permits pursuant to this Article. Encroachment permits are not a matter of right but are a matter of grace only.

(Ord. No. 360, § 5(Exh. A), 12-5-2018)

(a) Application for an encroachment permit shall be filed with the Public Works Director, on such form as the Director may prescribe.

(b) The application shall be accompanied by the payment of a filing in the amount necessary for full recovery of the City's actual costs, including without limitation, City staff time for processing, field marking, engineering, submittals, specifications, shop drawings, and inspection. All permit fees must be paid prior to the issuance of any encroachment permit. All applicable permit fees, including those for the issuance of a permit and for the benefit of maintaining an encroachment in the public right-of-way, shall be established by resolution of the City Council.

(c) As a condition for issuance of the permit, the applicant may be required to post a cash or surety bond payable to the City, conditioned on the proper compliance with all of the terms of the permit . The bond shall be in such amount as the Public Works Director deems sufficient to cover the cost to complete and maintain the encroachment or to remove the same and restore the public right-of-way to its original condition, whichever cost is greater.

(Ord. No. 360, § 5(Exh. A), 12-5-2018)

(a) The Public Works Director shall require the permittee exercise reasonable care in all work autho-

rized under a permit, including designing, constructing, maintenance, operations, post-construction inspections, and best practices for stormwater management. All permits shall provide that nearby property owners be protected from any damage to property and dust nuisance.

(b) An encroachment permit may contain such additional conditions as in the opinion of the Public Works Director appear reasonably necessary to insure proper installation, completion and maintenance of the encroachment and the protection of the public health, safety and welfare.

(c) The Public Works Director shall require the permittee to guaranty that all construction, installation and restoration work performed under a permit shall be free of defects in material or workmanship for a period of one year from the date of final approval by the City. The Director may, at the Director's discretion, require that a final inspection be made to insure the work was conducted in compliance with the terms of the permit.

(Ord. No. 360, § 5(Exh. A), 12-5-2018)

(a) No encroachment permit shall be issued until the applicant has executed a written agreement in form and content approved by the City Attorney to defend, indemnify and hold the City and its officers, officials, boards, commissions, employees and volunteers harmless from and against any and all claims, demands, actions, expenses or liabilities arising or resulting from the doing or refraining from doing any act permitted by such permit, or the failure to comply with any terms or conditions of such permit, or arising or resulting in any manner from the erection or construction of such encroachment.

(b) As a condition for the issuance and continuation of an encroachment permit, the Public Works Director will require the applicant to furnish, at the applicant's own cost and expense, a policy of liability insurance providing coverage in accordance with the applicable insurance standards of the City, as established from time to time by resolution of the City Council. Such insurance coverage shall be maintained in full force and effect in accordance with said insurance standards for as long as a permit remains issued and outstanding. Notwithstanding the foregoing, the Public Works Director may waive the liability insur-

(Saratoga Supp. No. 57, 1-26)

204

10-20.130

ance requirement when the Director determines that the risks associated with the proposed encroachment are negligible.

(Ord. No. 360, § 5(Exh. A), 12-5-2018)

(c) The cost of all field inspections performed by or on behalf of the City and the preparation of any inspection reports shall be paid by the applicant/ permittee.

(Ord. No. 360, § 5(Exh. A), 12-5-2018)

(a) The permittee must obtain all licenses and other permits and pay all required permit fees before an encroachment permit is effective; this includes any approval required under Chapter 15 of this Code.

(b) An encroachment permit is null and void if work pursuant to the permit is not commenced within one hundred eighty days after the date the permit is issued. A permit may be extended or renewed through the Public Works Director assuming there have been no material changes in the circumstances in effect at the time the permit was issued.

(c) Each permit shall specify its end date; permits that fail to do so shall have a default duration of one year from the date of issuance. Each permit shall be null and void after that date, or any extension thereof, unless a permit is terminated sooner by discontinuance of the use or removal of the encroachment for which a permit was issued. This subsection does not apply to permits for encroachments specified as continuing, which shall be considered to be of indeterminate duration. (Ord. No. 360, § 5(Exh. A), 12-5-2018)

All encroachments shall be constructed and maintained to the standards and specifications set forth in the permit.

(Ord. No. 360, § 5(Exh. A), 12-5-2018)

(a) Prior to the issuance of any encroachment permit, the Public Works Director may conduct a field inspection or require that a field inspection report be submitted by the applicant containing such information as the Director may specify.

(b) Following issuance of an encroachment permit and during the course of the work and following completion thereof, the Public Works Director may conduct or require the permittee to conduct such inspections as the Director deems necessary or appropriate to protect the public health, safety, and welfare.

(a) In the event of any failure by the permittee to perform and complete all work in accordance with the plans and specifications in the encroachment permit, such deficiencies shall be corrected within ten days after written notice from the Public Works Director to do so. If all deficiencies are not corrected within ten days, or such additional period of time as may be granted by the Public Works Director in the Director's sole discretion, the City may perform the corrective work, or cause the same to be performed, and all costs and expenses as may be incurred in connection therewith shall be the obligation of the permittee and shall be paid to the City immediately upon demand. The Director may resort to any security deposited with the City pursuant to Subsection 10-20.060(c) for the payment of such costs.

(b) The Public Works Director may, without prior notice to the permittee, perform any emergency work requiring immediate attention which the permittee has failed or is unable to complete, including backfill and repaving work. The costs of such work shall be the obligation of the permittee.

(Ord. No. 360, § 5(Exh. A), 12-5-2018)

Unless otherwise specifically set forth in the permit therefore, each encroachment shall be kept in maintenance and repair by the permittee at the permittee's sole cost and expense. Upon the failure of the permittee to maintain or repair an encroachment after ten days' written notice to do so from the City, such permit shall automatically be revoked without further notice, and the provisions of Section 10-20.020 shall be applicable thereto. If, however, in the opinion of the Public Works Director, it is in the interest of the City to maintain such encroachment rather than to remove or abate it, the cost of maintenance shall be the responsibility of the permittee and a covered liability under the permittee's bond.

(Ord. No. 360, § 5(Exh. A), 12-5-2018)

(Saratoga Supp. No. 57, 1-26)

204.1

10-20.140

(a) Any permit issued pursuant to this Article may be suspended or revoked by the Director of Public Works where it is found that:

(1) The permittee has violated any provision of this Article, the encroachment permit, any other City permit, or any agreement entered into with the City related to a permit; or

(2) The permittee has failed to pay any required fees, or to post or maintain any bond or insurance required by this Article; or

(3) The encroachment for which a permit was granted adversely affects the safety, capacity or integrity of the City's right-of-way; or

(4) A material misrepresentation was made in the application for a permit; or

(5) The relocation or removal of the encroachment is necessary to complete a City project.

(b) Upon revocation of an encroachment permit, the permittee shall remove such encroachment at the permittee's sole expense, and all the provisions of Section 10-20.020 shall become applicable to the permittee.

(Ord. No. 360, § 5(Exh. A), 12-5-2018)

204.2

(Saratoga Supp. No. 57, 1-26)

10-25.090