Chapter 7.2 ENCROACHMENTS*

The following words and phrases when used in this chapter shall, for the purposes of this chapter, have the meanings respectively ascribed to them in this chapter. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.102 Encroachment.

“Encroach or encroachment” shall mean going upon, over, under or using any right-of-way in such a manner as to prevent, obstruct, or interfere with its normal use, including, but not limited to, the performance thereon of any of the following acts:

(a) Excavating, filling, or disturbing the right-of-way;

(b) Erecting or maintaining any post, sign, pole, fence, guard rail, wall, loading platform, or other structure on, over, or under the right-of-way;

(c) Planting any tree, shrub, or other growing thing within the right-of-way; placing or leaving on the right-of-way any rubbish, brush, earth, or other material of any nature whatsoever;

(d) Constructing, placing, planting or maintaining on, over, under or within the right-of-way any pathway, sidewalk, driveway, or other surfacing, any culvert or other surface drainage or subsurface drainage facility, any pipe, conduit or cable;

(e) Lighting or building a fire;

(f) Constructing, placing, planting, or maintaining any structure, embankment, excavation, tree, or other object adjacent to the right-of-way that causes or will cause an encroachment; and

(g) Placing or causing to be placed any material, machinery, or apparatus on the right-of-way for building, paving, or other purposes for over twenty-four (24) hours. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.103 Right-of-way.

“Right-of-way” shall mean land which by deed, conveyance, agreement, easement, dedication, usage, or process of law is reserved for and dedicated to the City or the general public for street, highway, alley, pedestrian walkway utility or other purposes. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.104 City Engineer.

“City Engineer” shall mean the City of Clovis City Engineer. Whenever, by the provisions of this chapter, a power is granted to the City Engineer or a duty is imposed upon him or her, the power may be exercised or the duty performed by his deputy or by a person authorized in writing by the City Engineer. (§ 1, Ord. 20-04, eff. April 1, 2020)

Article 2. Encroachment Permit Requirements

7.2.201 Encroachment permit required.

No person shall encroach or cause to be made an encroachment of any nature whatever within, upon, over, or under the limits of any right-of-way in the City without having first obtained an encroachment permit as required by this chapter and paid all fees associated therewith. Failure to obtain an encroachment permit shall result in penalties consistent with Section 7.2.217. Notwithstanding the foregoing, no permit shall be required of officers or employees of the City acting in the discharge of their official duties.

The permits required by this chapter shall be issued and enforced by the City Engineer subject to conditions set forth in this chapter or required by law. The City Engineer has been delegated authority to issue, approve and execute permits pursuant to this chapter. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.202 Permit application.

The City Engineer shall provide a form of application for encroachment permits required by this chapter. The application shall provide all information necessary, in the judgment of the City Engineer, to establish the exact location, dimensions, duration, and purpose of the proposed use or encroachment. The application shall be accompanied by maps, plats, sketches, diagrams, or similar exhibits, to the satisfaction of the City Engineer. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.203 Action on application.

The City Engineer shall act on the application within thirty (30) working days. Where the City Engineer finds that the requirements of this chapter have been met, and the required fees paid, the City Engineer shall issue a permit for the use or encroachment, attaching such conditions as he or she may deem necessary for the health, safety, and welfare of the public and for the protection of the City. If the City Engineer finds the requirements of this chapter have not been met, the permit shall be denied with written reasons for such denial. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.204 Emergency work.

This chapter shall not prevent any person, firm or corporation from maintaining any pipe or conduit lawfully on or under any right-of-way, or from making excavation as may be necessary for the preservation of life or property; provided, that such person shall notify the City Engineer by telephone the day such work is performed. If such an emergency arises after normal business hours, the person making an emergency use or encroachment shall immediately leave a message with the Engineering Department and contact the Clovis Police Department. The person making an emergency use shall apply for an encroachment permit on the next available business day. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.205 Public utilities.

No person or entity shall install any public utilities equipment in the right-of-way or easement without first obtaining an encroachment permit from the City. Any disturbance of pavement, sidewalk, driveways, landscaping, striping or other surfaces shall be restored, repaired or replaced in accordance with City of Clovis Standard Specifications and Standard Drawings.

Wireless telecommunication facilities must also comply with the standards of Chapter 9.42. An encroachment permit will not be issued until the City has approved the wireless telecommunication facilities. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.206 Right of lawful use.

Any encroachment permit issued pursuant to this chapter shall be subject to the right of the City or any other person or entity entitled thereto to use that part of the right-of-way or easement for any purpose for which it may be lawfully used, and no part of the right-of-way or easement shall be unduly obstructed at any time. All work or use shall be planned and executed in a manner that will least interfere with the safe and convenient travel of the general public. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.207 Fees.

The City shall establish by resolution a schedule of fees for engineering, review, inspection, and other services to be rendered by the City in connection with work to be performed pursuant to the provisions of this chapter. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.208 Security.

(a) Prior to issuance of a permit, the City Engineer may require the permittee to provide a deposit with the City in the form of cash, certified check, cashier’s check, or an approved surety bond in a sum to be fixed by the City Engineer as sufficient to reimburse the City for the costs of restoring the right-of-way or easement to its former condition; and to cover the permittee’s activities during any twelve (12) month period.

(b) The City Engineer may require an additional cash deposit or surety bond at any time when, in the opinion of the City Engineer, the amount of the cash deposit or surety bond previously made is insufficient.

(c) The requirements set forth in this section may be waived by the City Engineer if the applicant’s work is adequately covered by existing surety bonds or other enforcement procedures or permits, as determined by the City Engineer.

(d) Any deposit or bond required by the City Engineer pursuant to this chapter shall be filed with the City Engineer and shall be payable to the City. Upon satisfactory completion of all work authorized by the permit, and fulfillment of all conditions of the permit, including the warranty period set forth in Section 7.2.314, the bond or cash deposit will be released; provided, that the City Engineer may, in his or her discretion, allow the earlier release of the bond or cash deposit.

(e) Cash deposits or bonds shall not be required of any public utility or public agency that is authorized by law to establish or maintain any works or facilities in, under, or over any right-of-way. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.209 Indemnification.

The permittee shall indemnify, defend and hold the City, its officials, officers, employees, agents, and volunteers harmless from and against all claims, demands, causes of action, actions, damages, losses, expenses, and other liabilities (including without limitation reasonable attorney fees and costs of litigation), of every nature arising out of or in connection with the alleged or actual acts, errors, omissions or negligence of permittee relating to the work or use authorized by an encroachment permit, unless the injuries or damages are the result of City’s sole negligence or willful misconduct. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.210 Insurance.

The permittee, at its sole cost and expense, shall obtain and maintain in full force and effect throughout the entire term of an encroachment permit issued pursuant to this chapter, insurance coverages of the type and with the coverage limits as may be required by the City Engineer. The permittee shall deliver or have on file with the City a Certificate of Insurance which includes all required coverages, endorsements, and names the City of Clovis as additionally insured and as the certificate holder. This criteria applies to all those listed and authorized to perform work under the encroachment permit. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.211 Term.

The permittee shall complete the work or use authorized by an encroachment permit issued pursuant to this chapter within ninety (90) days from the date of issuance, unless a different period is indicated in the permit. If the work or use is not completed within ninety (90) days or within the time stated in the permit, then the permit shall become void, and the City Engineer may restore the right-of-way in accordance with this chapter. Upon written request, an extension of time may be granted at the discretion of the City Engineer. The permittee’s obligations set forth in the encroachment permit shall continue through the applicable warranty period. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.212 Display of permit.

The permittee shall provide or produce an encroachment permit, at the site of work, when required by any authorized representative of the City Engineer or law enforcement officer. Additionally, when movement on a public right-of-way is involved the encroachment permit must be stored in the cab of a vehicle. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.213 Public noticing.

Permittee shall notify in writing all residences and businesses affected by any work or use done under an encroachment permit issued pursuant to this chapter not less than two (2) nor more than five (5) working days prior to beginning such work or use, unless otherwise provided in the permit. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.214 Changes in permit.

Encroachment permits shall be issued to the applicant (permittee) and may not be assigned to another person or entity once the permit has been issued. No changes may be made to the permittee, location, scope of work, or conditions of an issued encroachment permit, except upon authorization by the City Engineer. Unauthorized changes shall void the permit. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.215 Other permit issuance.

Issuance of a building permit, electrical permit, plumbing permit, demolition permit, or any other permit that may be required by law at the same location and/or in connection with the same activity for which an encroachment permit would be issued under this chapter shall not constitute authorization to encroach on any right-of-way. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.216 Other agency permits.

Permittee shall obtain permits from all other agencies, as required, and provide copies to the City Engineer at least two (2) working days prior to beginning work or use under the issued encroachment permit. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.217 Failure to obtain permit.

In the event work is performed within, upon, over, or under the limits of any right-of-way in the City without having first obtained an encroachment permit, the City has the right to pursue all available remedies, including but not limited to removing, relocating, or abandoning the work at the expense of those responsible for performing the unauthorized work. Unauthorized work may also be considered a violation of other codes adopted by the City and may be subject to additional penalties. (§ 1, Ord. 20-04, eff. April 1, 2020)

Article 3. Performance of Work

7.2.301 Standards and specifications.

Any work or use done under an encroachment permit issued pursuant to this chapter shall conform to the City of Clovis Standard Specifications and Standard Drawings, unless otherwise required by the City Engineer. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.302 At-risk work.

In the event the City approves the permittee’s request for at-risk construction of improvements prior to the City’s approval of the improvement plans, the permittee agrees that if the final approved improvement plans show materials, workmanship, locations or grades of improvements that differ from that which was installed, the permittee will be required to perform and bear all costs of work needed to make the improvements conform to the approved plans. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.303 Notification prior to work.

The permittee shall provide at least forty-eight (48) hours’ notice to the City Engineer and all other affected City departments identified in the permit before beginning work or use under an encroachment permit issued pursuant to this chapter. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.304 Underground service alert notification and markouts.

The permittee shall comply with the provisions of Government Code Section 4216 et seq., prior to beginning any excavation work. Permittee shall provide the City Engineer with an underground service alert ticket number prior to commencing work.

Whenever a utility owner conducts any activity not otherwise requiring a permit, such as providing underground service alert mark-outs, which will affect the safety of the motoring or pedestrian public and/or the employees or representatives of the utility owner, traffic control devices at the site of work shall be deployed in accordance with the current edition of the California Manual of Uniform Traffic Control Devices. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.305 Compliance with plans, laws, and regulations.

The permittee shall perform all work in accordance with the approved plans, the City of Clovis Standard Specifications and Standard Drawings, and the applicable provisions of the current edition of the standard specifications of the State Department of Transportation, the Fresno Metropolitan Flood Control District and the Fresno Irrigation District. The permittee shall comply with all applicable federal, state, and local laws and regulations, including the California Department of Industrial Relations’ rules and regulations. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.306 Drainage requirements and dust control.

The performance of work or use under an encroachment permit issued pursuant to this chapter shall not interfere, block, or alter existing drainage occurring at the site of such work or use. Existing drainage facilities shall remain operational throughout such work or use. No pollutants resulting from the work or use under the permit shall be allowed to enter the storm drainage system.

The permittee shall provide dust control in accordance with the City of Clovis Standard Specifications. In the event the permittee fails to provide adequate dust control, the City Engineer shall order the same at permittee’s expense. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.307 Water use.

All water taken from the City water system shall be metered. Fire hydrants shall be metered and the permittee shall be responsible to obtain a City of Clovis fire hydrant meter available at the City’s Public Utilities Corporation Yard. Permittee shall be responsible for payment of all fees relating to the use of water as set forth in Section 6.5.103. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.308 Traffic control plan.

Upon review of the application for an encroachment permit, the applicant may be required to furnish a traffic control plan to the City Engineer for review and approval. The traffic control plan must comply with the most current edition of the California Manual of Uniform Traffic Control Devices or as otherwise approved by the City Engineer. The permittee shall deploy traffic control devices at the site of work in accordance with the encroachment permit issued pursuant to this chapter.

If work at a location requires a road to be closed, the permittee shall request a separate encroachment permit specific to the closure along with a traffic control plan. The road for which the closure has been requested shall remain open for public use until the City Engineer has approved the application for the permit and associated traffic control plan. The permittee shall pay all associated fees related to the road closure. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.309 Storage.

Unless authorized by the City Engineer, the permittee shall not use public property, right-of-way, or public easement for storage of equipment, materials, or waste. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.310 Inspections.

All work or use authorized by an encroachment permit issued pursuant to this chapter shall be inspected by the City Engineer at his or her sole discretion. Permittee shall allow access to the work site for progress and final inspections. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.311 Restoration.

Upon completion of the work or use performed under an encroachment permit issued pursuant to this chapter, or when required by the City Engineer, the permittee shall replace, repair, or restore the right-of-way in accordance with City of Clovis Standard Specifications and Standard Drawings. Additionally, the permittee shall remove all obstructions, impediments, material, or rubbish placed or caused to be placed at the area of work or use covered under the encroachment permit. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.312 Notification of completion of work.

The permittee shall notify the City Engineer in writing upon completion of all work or use authorized under an encroachment permit issued pursuant to this chapter. No work shall be deemed to be completed until such notification of completion is given and final inspection has been made by the City Engineer. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.313 Testing.

At the discretion of the City Engineer, compliance testing shall be required for work authorized by an encroachment permit issued pursuant to this chapter. All costs associated with such testing shall be the responsibility of the permittee. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.314 Warranty period.

After the completion of all work, the permittee shall exercise reasonable care in monitoring and maintaining the area affected by the encroachment. For a period of two (2) years after the final inspection of the work by the City Engineer or his or her designee or the date of the waiver of final inspection, the permittee shall repair or replace any defective work or material furnished in performance with work or use under the encroachment permit and shall repair any injury or damage to any portion of the right-of- way that occurs as a result of the work or use under the encroachment permit, including any and all injury or damage to the right-of-way that would not have occurred had such work or use not been performed. The City may require permittee to provide a warranty bond for the duration of the warranty period. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.315 Relocation or removal of encroachments.

If any future construction, reconstruction, or maintenance work by the City, or required by the City on a right-of-way, requires the relocation, removal, or abandonment of installations or encroachments in, on or under a right-of-way, the permittee owning, controlling, or maintaining such installation or encroachments shall relocate, remove, or abandon the same at his or her sole expense, unless otherwise required by law. When removal, relocation, or abandonment is required, the City Engineer shall give such permittee a written demand specifying the place of relocation, or that the installations or encroachment must be removed or abandoned. If the permittee fails to comply with said demand, the City may cause the removal, relocation, or abandonment of the encroachment at the expense of the permittee. (§ 1, Ord. 20-04, eff. April 1, 2020)

Article 4. Enforcement

7.2.401 Permit revocation.

Any encroachment permit issued pursuant to this chapter may be revoked by the City Engineer for violation of the provisions of this chapter, for violation of any condition attached to any permit issued pursuant to this chapter, or in the event that the permitted activity poses an imminent threat to the public health, safety or welfare. The City shall invoice the permittee to recover the cost of any action taken pursuant to this section, including an administrative fee. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.402 Appeals.

An applicant may appeal the decision of the City Engineer concerning the denial or revocation of a permit to the City Council. The City Council may deny the appeal or grant the appeal with the terms and conditions necessary to protect the public health and safety. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.403 Public nuisance.

Any encroachment that is not exempted by the provisions of this chapter and for which no encroachment permit has been issued, or any encroachment maintained in violation of this chapter or the provisions of any encroachment permit, is hereby declared to constitute a public nuisance. The City Engineer may abate any such nuisance in accordance with any procedure authorized by law. The costs of such abatement shall be a personal obligation of the property owner and may be made a lien against the property in accordance with the provisions of Section 7.2.404. (§ 1, Ord. 20-04, eff. April 1, 2020)

7.2.404 Lien procedure.

The City Engineer may assess liens for the cost of performing the abatement, including reasonable administrative costs, consistent with the City of Clovis Municipal Code. (§ 1, Ord. 20-04, eff. April 1, 2020)