Except as otherwise provided in Section 13-04.040, it is unlawful for any person to encroach or to make or to cause to be made any encroachment without first having obtained an encroachment permit from the City Engineer.

Encroachment permits shall be issued by the City Engineer upon such conditions the City Engineer deems necessary to protect the public interest, health, safety or welfare.

All obligations, responsibilities and other requirements of the permittee as described in this chapter shall be binding on subsequent owners of the encroachment.

Any person owning or maintaining any encroachment existing as of the effective date of the ordinance codified in this chapter, which has not previously been the subject of a written permit or agreement, and is not exempt under Section 13-04.040 shall be required to apply for a permit pursuant to this chapter by September 1, 2006. The Director of Public Works may require a permit prior to such date if he determines that an encroachment jeopardizes the public health, safety or welfare. If an application is not timely made, or if application is made but a permit is denied, the City may remove the encroachment. Prior to such removal the City shall give not less than 30 days' written notice by mail to the person or persons who reasonably appear to own or maintain such encroachment, provided that the identity and address thereof can be ascertained with reasonable efforts by the City.

Any encroachment for which a permit is required and for which no permit has been issued pursuant to this chapter shall be deemed a public nuisance under Chapter 1-30 of this code.

Any sidewalk area authorized for use as a sidewalk café by a current conditional use permit during any time period when the sidewalk café is in operation;

Any installation, alteration, removal or relocation of a tree as authorized in Chapter 17-24;

Marquees, awnings and other projecting structures and building appendages over the right-of-way, which comply with the requirements of the Uniform Building Code for use of public streets and projections over public property, and are part of a building or structure which has been granted a valid building permit in accordance with the applicable provisions of this code;

Any sign erected, constructed and maintained in compliance with this code;

The actions of any officer or employee of the City engaged in the discharge of official duties;

The performance of work under contract to the City;

The placement or maintenance of newsracks in compliance with this code or state or federal law;

The making of an emergency street cut by a utility to repair a broken or defective pipe, facility or conduit lawfully on or under a public street, or excavating by a utility as may be necessary for the preservation of life and property when an urgent necessity therefor arises when the offices of the City are closed. Any utility making such street cut shall apply for an emergency encroachment permit on the next City business day. The issuance of such permit shall be at the sole discretion of the City Engineer based on a determination as to whether the work was necessary to for the preservation of life or property and in compliance with this code. In the event that the City Engineer determines issuance of an emergency permit is unwarranted, the person or persons who performed, or caused to be performed, any such work shall be in violation of this chapter.

The City reserves all rights to approve and construct municipal improvements under or over facilities or portions of facilities constructed pursuant to encroachment permits.

Any permit granted under this chapter shall be subject to the right of the City, or any other person entitled thereto, to use that part of the right-of-way for any purpose for which it may be lawfully used, and no part of the right-of-way shall be unduly obstructed at any time.

An application for a permit required by this chapter shall be made on a form prescribed by the Director of Public Works. The application shall be signed by the contractor, property owner or other entity performing the work and shall include the following:

The application for a permit shall refer to, and incorporate by reference, all of the provisions of this chapter.

A permit shall not be issued unless and until the order or consent required pursuant to subsection (A) is first obtained and filed with the City Engineer. The permittee shall be knowledgeable and comply with all applicable federal, state and local laws, regulations and orders which may in any manner affect the permit. The permittee shall insure that its agents, employees and contractors are at all times in compliance with all applicable laws, regulations and orders.

The permittee shall be responsible for all liability imposed by law for personal injury or property damage proximately caused by: (1) work done by permittee under the permit, including work beyond the scope of the permit; (2) failure on permittee's part to perform obligations under the permit in respect to maintenance; or (3) the existence of any permitted encroachment. If any claim of such liability is made against the City, its officers or employees, permittee shall defend, indemnify and hold them, and each of them, harmless from such claim and liability insofar as permitted by law.

Before a permit is issued, the applicant, or the contractor who is to perform the work, shall secure, at its expense, a policy of broad form commercial general liability insurance, on an "occurrence" basis issued by an insurer acceptable to the City. If the work to be performed involves any excavation, the policy shall include an endorsement that affords coverage for explosion, collapse and underground hazards. If the work to be performed involves vehicles or vehicular equipment, the insurance must cover any automobile for bodily injury and property damage. The policy shall by endorsement name the City and its officers, employees and agents as additional insureds and shall protect them from claims for personal injury, death or property damage suffered by third persons and arising out of the work performed pursuant to the permit or the manner of installation or construction. The insurance coverage afforded by this policy shall be primary. The policy shall include a cancellation clause requiring the issuing company or its authorized agent to provide a 30-day written notice of cancellation, suspension or modification, to the named certificate holder.

The amount of liability insurance coverage shall be a minimum of $1,000,000 per occurrence and $2,000,000 aggregate or $1,000,000 aggregate if the policy separately applies to the permitted project.

Workers' Compensation shall be maintained to meet minimum state requirements.

A certificate or certificates of the insurance shall be filed with the Department of Public Works prior to commencement of any work. The insurance shall be in effect on the date that the work is commenced and shall be maintained in effect until the work has been completed and the work has been accepted by the Director of Public Works, pursuant to Section 13-04.110.

The City Risk Manager may increase, decrease or waive the insurance limits set forth above in those cases in which he/she determines that special circumstances justify such an increase, decrease or waiver.

An applicant seeking to do work himself or herself on the City street or in the public easement immediately adjacent to premises containing only one single-family dwelling or two authorized units, one of which is owned and occupied by the applicant, shall not be required to file with the City certificates evidencing general liability, property damage coverage, or workers' compensation insurance.

All fees required to be paid under the provisions of this chapter shall be established by resolution of the City Council, and may be subject to adjustment based on the nature, scope and duration of the proposed encroachment.

In addition to any fees required under this chapter, permittee shall be responsible for payment of any other fees that may be required under this code.

Unless waived in writing by the Director of Public Works, fees will be required of any public agency which is authorized by law to establish or maintain any works or facilities in, under or over any public street or right-of-way.

Each permit shall specify its duration and shall become null and void after the date so specified, or any written extension thereof, unless the permit is terminated sooner by discontinuance of the use or removal of the encroachment for which the permit was issued. Any extension shall require a written request and may be subject to the payment of additional fees and, in the event of a requested extension beyond one year from the date of initial issuance, a written agreement pursuant to Section 13-04.090.

A permit for a continuing encroachment shall be considered to be of the duration as specified in the agreement executed pursuant to Section 13-04.090, subject to the terms and provision therein.

The permittee shall begin the work or use authorized by a permit issued pursuant to this chapter within 90 days from date of issuance, unless a different time period is stated in the permit. If the work is not timely begun, then the permit shall become void, unless a timely extension of time to commence work has been granted by the Director of Public Works in writing. Before beginning any work which involves or includes excavation, construction of concrete sidewalks, curbs, gutters or driveway approaches, or making, placing or causing an obstruction in the traveled way, the permittee shall notify the City Engineer.

The permittee shall complete the work or use authorized by a permit issued pursuant to this chapter within the time specified in the permit and shall notify the Director of Public Works upon completion. No work shall be deemed to be complete, nor shall the work be operated or placed into service, without written authorization, notification of completion, or acceptance by the Director of Public Works. If at any time the Director of Public Works determines that the prosecution or completion of the work or use authorized is delayed due to lack of diligence on the part of the permittee, the permit may be canceled and the right-of-way restored to its former condition. The permittee shall reimburse the City for all expenses incurred by the City in restoring the right-of-way.

The Director of Public Works may extend any time period if commencement or completion of the work for which the permit was issued was delayed because of inclement weather, strikes, an act of God or other causes not within the control of the permittee.

A copy of any permit issued pursuant to this chapter shall be kept at the site of any construction work pertaining to the encroachment and shall be shown to any authorized representative of the City on demand.

An agreement or permit issued for continued use or maintenance of an encroachment involving the residence or place of business of the permittee may be kept at the residence or place of business, or otherwise safeguarded during the term of validity, and shall be made available to an authorized representative of the City within a reasonable time after demand therefor is made.

The City Engineer may require the permittee to perform special inspections of and maintain records for certain facilities constructed in the right-of-way. The City also reserves the right to conduct periodic inspections throughout the construction phases of the project and to have access to any pertinent records of the permittee.

Final inspection of construction may be conducted by the City Engineer. At the City Engineer's discretion, permittee may be required to be present. Permittee shall allow reasonable time for the City to prepare and provide a list of items requiring corrective action. Permittee shall undertake timely correction of all such items.

All persons owning underground facilities located in City shall keep current, adequate and complete maps and records of same. Such maps and records shall be made available to the City upon request.

No changes may be made in the location, dimension, character or duration of the encroachment, its mode of operation, maintenance, or use as granted by the permit except upon written authorization of the Director of Public Works. All construction and use of materials must adhere to approved plans and specifications. The permittee shall coordinate all construction activities with the Director of Public Works.

No additional permit shall be required for the continuing use of encroachments installed by public utilities, provided that such continuing use conform to the conditions of the original encroachment permit and any later modifications to that permit, and further provided that permittee shall comply with the requirements of Section 13-04.090, including entering into a written agreement with the City.

Permittee shall at all times obey and enforce all applicable safety orders, rules and recommendations of the state Division of Industrial Safety and shall comply with all applicable state and local laws, ordinances, codes and regulations.

During construction, permittee shall immediately remedy all hazardous conditions or nuisances upon receipt of any notice from the City. The Director of Public Works may take any action necessary to remedy any hazardous condition or nuisance if there is insufficient time, under the circumstances, to first provide notice to permittee, or should permittee fail to take immediate and appropriate action upon receipt of notice from the City.

Permittee shall provide, erect and maintain any lights, warning sign, signals, flares, patrols and other appropriate safeguards necessary to protect the public during the course of work or maintenance of an encroachment. Where the permit involves excavation, obstruction or similar work within the right-of-way, permittee shall place and maintain lights at 50 foot or lesser intervals, and at each end of the excavation or obstruction, from one-half hour before sunset to one-half hour after sunrise the following day for each day until the right-of-way has been made safe for use. Reflectorized warning signs conforming to the requirements of the Manual of Uniform Traffic Control Devices issued by the California Department of Transportation shall be placed at 200 and at 400 feet from each excavation or obstruction to provide adequate warning.

Warning signs, lights and other safety devices shall conform to the requirements of the California Vehicle Code and the Manual of Uniform Traffic Control Devices issued by the California Department of Transportation, or other recognized, applicable standards.

The standards and requirements set forth in this chapter are intended to be the minimum required standards. The failure of the City to require any specific safety device or procedure shall not excuse permittee from complying with any other requirements or standards or to take reasonable, appropriate and prudent safety precautions indicated by the specific circumstances. At any time, the City may provide, erect, relocate or remove any safety device or measure as necessary or cancel the permit and restore the right-of way at the expense of the permittee.

All work done under a permit shall conform to the specifications and to the conditions of approval established by the City or, in the absence of established specifications, to recognized standards of design and construction and approved practices in connection with the work to be done. All work shall be done subject to the satisfaction and approval of the City Engineer.

If the work, use or encroachment authorized in the permit issued pursuant to this chapter interferes with the established drainage, the permittee shall provide for proper drainage as directed by the City Engineer.

Backfilling of an excavation shall be in accordance with the standard details and specifications of the City, or those other specifications required by the City Engineer for the particular project, both as to material and method. Backfill shall not be placed in any excavation without compaction of the material used therein, the degree and method thereof to be to the satisfaction of the City Engineer.

All operation, maintenance and repairs to a continuing encroachment shall conform to the conditions of approval of the underlying encroachment permit, to the terms of any applicable agreement with City, and to established and recognized standards of construction, design, operation and maintenance for the particular type of encroachment.

Upon completion of the project for which the permit was issued, or when required by the Director of Public Works, the permittee shall replace, repair or restore the public right-of-way to its prior condition unless otherwise provided in the permit. The permittee shall remove all obstructions, impediments, material or rubbish caused or placed upon the right-of-way under the permit, and shall do any other work or perform any act necessary to restore the public street to a safe and usable condition.

By the acceptance of the permit the permittee agrees to exercise reasonable care in inspecting and maintaining the area affected by the encroachment after completion of all work.

The permittee shall immediately repair any injury, damage or nuisance, in any portion of the right-of-way, resulting from the work done under the permit. In the event that the permittee fails to act promptly or should the exigencies of the injury or damage require repairs or replacement to be made before the permittee can be notified by the Director of Public Works or can respond to notification, the City may at its option make the necessary repairs or replacements or perform the necessary work and the permittee shall be charged with all the expenses incurred in the performance of the work.

If any future construction, reconstruction or maintenance work by the City on the right-of-way necessitates the relocation, removal or abandonment of an encroachment, the permittee shall relocate, remove or abandon the encroachment at the permittee's sole expense.

When relocation is required, the Director of Public Works shall make written demand of the permittee that the encroachment be relocated within the right-of-way to a satisfactory location provided by the City Engineer, and shall designate a reasonable time for such relocation or removal. In determining what is a reasonable time under this section, the Director of Public Works shall take into consideration the nature of the encroachment, the urgency of the need for its removal, the cost of its removal, the difficulty of its removal, the value of the property to the owner, and other facts peculiar to the particular situation. If the permittee fails to comply with such instructions, the City may relocate or remove the encroachment at the expense of the permittee.

The provisions of this section shall apply to all permittees, including public agencies and public utilities having authority to occupy public rights-of-way pursuant to a franchise or an express provision of state statute, unless in conflict with a franchise agreement with the City, or in conflict with a state statute applicable to a charter city.

The permittee shall so plan the work as to cause the minimum of interference with traffic and inconvenience to the public and perform all street cut work in a neat and professional manner. Roadways and walks shall not be unnecessarily obstructed. At no time shall a public street be closed, or its function reduced or modified or the use thereof denied in whole or in part to the general public, without the written permission of the Director of Public Works.

The permittee shall provide free and unobstructed access to all mailboxes, fire hydrants, water gates, valves, manholes, drainage structures and other public service structures and property that may be required for emergency use. The permittee shall not remove such structures and property or relocate or manipulate them without proper coordination with the authorities responsible for their control and maintenance.

When necessary, the permittee shall construct temporary roadways and driveways for vehicles and walkways for pedestrians. The walkway around the street cut shall be constructed as close to the area formerly used for pedestrian travel as possible.

When a street cut is made in an area commonly used for pedestrian travel, the permittee shall construct a temporary walkway not less than four feet in width for pedestrian travel over or around the street cut. The walkway shall be designed for a minimum uniform live load of 100 pounds per square foot, and shall be provided with suitable ramps at each end and with handrails as required under state or federal law, or with a railing on one side and a fence on the other, as the situation may require. The permittee shall provide lighting, with an intensity of not less than one foot candle at the floor level on all temporary walkways constructed pursuant to this chapter.

All temporary walkways shall comply with all federal and State laws and regulations pertaining to access by disabled persons, including but not limited to the Americans with Disabilities Act of 1990, 42 U.S.C.S. Section 12101 et seq., or as the same shall be later amended.

The permittee shall be required to construct pavement, whether temporary or permanent, in accordance with the standard specifications of the City, unless otherwise specified on the permit.

All construction work performed pursuant to a street cut encroachment permit shall be performed by contractors who have current and valid licenses issued by the state of California Contractor's License Board, for the type of work being performed.

Store materials used in connection with the work within five feet of a public street, or stockpile materials in the right-of-way, unless otherwise authorized by the City Engineer. Excess earth materials from trenching or other operations shall be removed from the pavement, travel way or shoulder as the trench is backfilled or other work carried forward unless otherwise approved by the City Engineer;

Plant any landscaping across any existing walkway in a sidewalk area or roadway shoulder;

Erect or maintain a fence or similar structure in a right-of-way without a permit, except as provided in this chapter;

Erect or maintain a fence or similar structure across any existing walkway in a sidewalk area or roadway shoulder;

Permit or maintain any encroachment of any nature which impedes, obstructs or denies pedestrian or other lawful travel within the limits of a public street, or which impairs adequate sight distance for safe pedestrian or vehicular traffic;

Construct or maintain a freight loading platform upon or in the right-of-way.

That the applicant will be substantially damaged by the refusal to grant the permit as requested;

That no other reasonable method of obtaining the desired results is available except as proposed by applicant;

That the granting of the permit will not be materially detrimental to the public interest, safety, health and welfare or injurious to other property;

That the project for which the permit is sought will not adversely affect the safety, capacity, or integrity of the City's right-of-way;

That the applicant has substantially complied with the provisions of any prior permits issued to the applicant, and has paid or posted all required fees or bonds, and maintained all required insurance coverage;

That the environmental effects are not significant;

That an additional maintenance cost to the City is not created by the encroachment;

That the granting of the permit will not be materially detrimental to the rights, interests or revenues of the City.

If the Director of Public Works, after the hearing, finds that cause exists for remedial action, the director shall impose one or more of the following:

The director shall, within 10 days of the hearing, render a written opinion, stating the findings upon which the decision is based, and the action taken. The decision of the director shall be final.

The permittee has violated any provision of this chapter, or of any agreement entered into with the City related to the permit; or

The permittee has failed to pay any required fees, or to post or maintain any bond or insurance required by this chapter; or

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

The encroachment is causing the City to incur substantial additional maintenance costs; or

Material misrepresentations were made in the application for the permit.