Chapter 11.08 ENCROACHMENTS

The following words and phrases as used in this chapter, unless a different meaning is clearly required by the context, shall have the following meanings:

“City engineer” means the city engineer of the city acting either directly or through authorized agents.

“Director” as used in this chapter, means the city manager of the city or his designee.

“Licensed contractor” means a person or entity duly licensed under the laws of the state of California to perform works of improvements.

“Person” as used in this chapter, includes any individual, firm, partnership, joint venture, association, corporation, estate, trust, the state of California, incorporated cities, all public districts and political subdivisions of the state of California except the city and any group or combination acting as a unit.

“Public agency” means the United States or any department or agency thereof, the state of California and any department or agency thereof, corporate cities and all public districts and other political subdivisions of the state of California except the city.

“Public right-of-way” means any place of any nature which is dedicated to use by the public for pedestrian and vehicular travel, and includes, but is not limited to, a street, sidewalk, curb, gutter, crossing, intersection, parkway, highway, alley, lane, mall, court, way, avenue, boulevard, road, roadway, viaduct, subway, tunnel, bridge, thoroughfare, park, square, and any other similar public way.

“Sidewalk area” means that portion of a street right-of-way which lies between the property line and the outside edge of a gutter or gutter lip, including a driveway approach.

“Standard specification” means the standard specification of the city department of public works, established by and adopted by the city council.

“Temporary and seasonal business activities in or adjoining public rights-of-way” means those business activities that use private or public property, whether for profit or not, whether located within the city limits or not, on a temporary basis for sales of goods, products or services, using temporary structures or apparatus to conduct business including but not limited to, Christmas tree sales, pumpkin sales, food sales, fireworks sales, which are located either on or adjoining public rights-of-way on a temporary basis. (Ord. 2003-7 § 1, 2003; Ord. 90-19 § 2 (part), 1990)

11.08.015 Purpose and intent.

A. Construction, excavation and temporary, seasonal businesses activities in or adjoining public rights-of-way presents an inconvenience and danger to the safety and welfare of persons using such rights-of-way, including pedestrians, persons entering and leaving vehicles and buildings, vehicle traffic on streets, and persons performing essential utility, traffic control and emergency services.

B. Seasonal and temporary businesses activities and construction activity can be so located so as to cause an inconvenience or danger to persons using public rights-of-way and constitute public nuisances.

C. The uncontrolled proliferation of seasonal and temporary businesses in or adjoining public rights-of-way detracts from the appearance of streets, sidewalks, and adjacent businesses.

D. The uncontrolled placement of temporary structures related to seasonal and temporary businesses in or adjoining public rights-of-way inhibits safe entry and departure of vehicles.

E. The uncontrolled placement of temporary structures related to seasonal and temporary businesses in or adjoining public rights-of-way impairs the vision and distracts the attention of motorists and pedestrians, particularly small children and may cause injury to the person or property of such persons.

F. The placement of temporary structures related to seasonal and temporary businesses in or adjoining public rights-of-way adjacent to residential areas detracts from and reduces neighborhood aesthetics and increases the exposure of residents to noise, traffic volume and hazards and congestion.

G. The provisions and prohibitions contained and enacted in this chapter are in pursuit of and for the purpose of securing and promoting the public safety and general welfare of persons in the city in their use of public rights-of-way through the regulation of construction and excavation in the rights-of-way, as well as, the placement, appearance, number, size, and operation of temporary structures related to seasonal and temporary businesses in or adjoining the public rights-of-way.

H. It is not the intent of this chapter to in any way discriminate against, regulate, or interfere with the publication, circulation, distribution, or dissemination of any printed material that is constitutionally protected. (Ord. 2003-7 § 2 (part), 2003)

11.08.020 Permits to do work in city streets required.

No person shall make any excavation or dig any trench or remove or destroy in any way, any curb, gutter, sidewalk or street pavement, or alter or tear up the surface, or install any sidewalk, curb, gutter, driveway approach, drainage well, street or alley pavement, sewer, pipeline, conduit, pole, tank or anything else in or upon any public street, alley, sidewalk or other public place in the city without first securing a permit from the director and filing bonds and insurance as hereinafter specified and required; provided, that a permit shall not be required for work done under a contract therefor by the council; and provided further, that a permit shall not be required for public utilities service installations or minor maintenance work in connection therewith, when such installation or work is done on any street prior to the installation of street surfacing. (Ord. 90-19 § 2 (part), 1990)

11.08.025 Permits to engage in seasonal and temporary activities in or adjoining public rights-of-way.

A. Unless otherwise permitted under this code, no person shall install or maintain any temporary structures related to seasonal and temporary businesses in or adjoining public rights-of-way which in whole or in part rests upon, in, adjacent to or over any public right-of-way without first obtaining a permit from the director or his designated representative after providing the following:

1. The location of each temporary structures to be installed or maintained by applicant; and

2. The name, address and telephone number of the applicant.

B. No more than one permit shall be required per applicant regardless of the number of temporary structures the applicant maintains. However, an amended application for said permit shall be filed with the director in the event that additional temporary structures are installed or removed by the applicant subsequent to the issuing of the original permit by the city.

C. From the above information the director or his designated representative shall designate locations and shall be guided therein solely by the standards and criteria set forth in this chapter. Such application may be granted either in whole or in part when more than one location is proposed by the applicant, and in any event, when denial is solely as to location, it shall be without prejudice to amend such application to state a different location or locations.

D. In addition to the permit application, the applicant shall also provide bonds and/or insurance as hereinafter specified and required as it pertains to the temporary and seasonal business activities in or adjoining public rights-of-way, as determined by the director. (Ord. 2003-7 § 2 (part), 2003)

11.08.030 Work to be performed by a licensed contractor.

Any work proposed to be done under a permit issued pursuant to this chapter shall be done by a licensed contractor, duly licensed to perform the proposed work or improvement. (Ord. 90-19 § 2 (part), 1990)

11.08.040 Exceptions.

A. The provisions of this chapter are not applicable to the installation of a mail box. However, mail boxes shall be installed in accordance with the rules and regulations of the United States post office department and shall not be placed within the public right-of-way, so as to endanger the safety of the persons using the streets and/or sidewalks. If the director determined that a mail box has not been installed in compliance with this subsection, he shall require the removal of the mail box in accordance with the procedure set forth in Chapter 6 of Division Two of the Streets and Highways Code of the state of California or any other applicable statutes or ordinance.

B. The provisions of this chapter are not applicable to any work which is performed pursuant to a franchise granted by the city or the state of California.

C. The provisions of this chapter are not applicable to any public agency which has the right under the laws of the state of California to perform work covered by the provisions of this chapter without following the procedure prescribed herein.

D. Nothing in this chapter shall prohibit a person from making excavation in the street which is necessary for the preservation of life or property when such necessity arises during the hours when the office of the director is closed. If the person making such excavation files an application for the required permit on the first day that the office of the director is opened subsequent to the making of such excavation. (Ord. 90-19 § 2 (part), 1990)

11.08.050 Application for permit.

Any person proposing to make an excavation or do any street work in the city shall file a signed application with the community development department for delivery to the director, setting forth the contractor’s name and license number and specifically describing the location, area, extent and nature of the excavation proposed to be made or the work proposed to be done. Such application shall include a diagram of the proposed excavation or work. Specifications under which the proposed work is to be done shall be submitted when requested by the director. The application shall be made in duplicate on forms furnished by the city. The council shall establish a schedule of fees for filing of applications and engineering, inspection, staking, and other services to be rendered by the city in connection with work to be performed under the terms of this chapter. Upon the filing of an application to do street work, the applicant shall pay to the city the applicable fees. (Ord. 90-19 § 2 (part), 1990)

11.08.060 Hold harmless agreement.

Each applicant for a permit, shall agree to hold the city and its officers, agents, and employees, harmless from any and all causes of action, penalties, liability or loss resulting from claims or court actions arising out of any accidents, loss or damage to personal property occurring as a result to any work performed pursuant to the permit. (Ord. 90-19 § 2 (part), 1990)

11.08.070 Insurance.

A. No person shall be entitled to a permit under this chapter unless and until he shall have filed and maintained on file with the city a certification that such person carries public liability and property damage insurance issued by an insurance carrier licensed to do business in the state of California, insuring the applicant, the city, its officers, employees and agents and named insured against loss by reasons of injuries to, or death of, persons, or damages to property caused by the applicant, its agents or employees in performing any work under such permit, in the following amounts: Five hundred thousand dollars for the death of, or injury to, any one person in any one accident; one million dollars for the death of or injuries to, more than one person in any one accident; one million dollars for damages to property.

Said insurance is to provide for cross liability between insurer and provide that the applicant’s insurance is primary to any owned by the city.

B. If the work to be performed involves any excavation, the policy shall include any endorsement that affords coverage for explosion, collapse and underground hazards.

C. Public utilities and other public agencies shall not be required to file the certification set forth in subsection (A) of this section, provided the utility or agency agrees in writing to indemnify and defend the city, its agents and employees from liability arising from the work, and pay all of the city’s court costs and attorney fees incurred as a result of claims being made for damages therefor, that there shall be filed and maintained with the city, a certification showing them maintenance of a satisfactory plan of self insurance, or sufficient evidence to be presented that the public utility or other public agency is of sufficient financial responsibility to provide the necessary indemnification.

D. The insurance policy shall be in effect on the date the work is commenced and shall expire no sooner than one year after the date on which the work is completed. (Ord. 90-19 § 2 (part), 1990)

11.08.080 Bond.

A. No permit shall be issued for making any excavation or for doing any work described in this chapter, which requires a permit, until the applicant has filed a corporate faithful performance or license bond in a sum designated by the director.

B. The aforesaid bond shall be approved by the city attorney and filed with the city.

C. In the event an applicant requests a permit to do any work under the terms of this chapter of the class for which a bond has been issued, the total estimate of costs of which exceeds the amount of said bond, he shall furnish an additional bond in a sum which, in together with the bond already on file, equals one hundred percent of the total estimated costs of the work.

D. The condition of required bond shall be that in the event the excavation or work done under street work permits issued therefor shall fully comply with the provisions of this chapter, then said obligation shall be void; but in the event the principal shall fail to faithfully comply with any of the provisions of this chapter, then the director may direct that the work be done in accordance with the provisions of this chapter and the costs and expense of such work and, in the event of suit on the bond, attorney’s fees and court costs shall be collectable from the principal and the surety or sureties on said bonds.

E. All bonds required by this section shall be for a period of not less than one year and shall expire on the thirtieth day of June except if a corporate faithful performance bond is filed by a public utility, it shall be effective until revoked. No bond shall be cancelled except on thirty days’ written notice to the director.

F. Whenever the excavation or work is to be done in connection with the initial installation of subdivision improvements under a subdivision agreement guaranteed by a bond, or other improvements security, the bond specified by this section shall not be required. (Ord. 9019 § 2 (part), 1990)

11.08.090 Issuance of permit.

A. If the applicant for a permit complies with all of the provisions of this chapter and with all other applicable laws and ordinances of the state of California and the city, the director may issue the permit to the applicant. Permit granted by the director shall refer to this chapter and shall be granted by the director subject to all its terms and conditions which are set forth in this chapter.

B. When the director grants a permit pursuant to this chapter, he may impose thereon such terms and conditions concerning the location, dimension or character of the work as he may deem necessary for the protection of the streets, the prevention of undue interference with traffic, to insure the safety of persons using the streets.

C. If the applicant or the contractor who shall do the proposed work, does not comply with all of the requirements of this chapter and with all other applicable laws and ordinances of the state of California, and the city, the director shall deny the application for the permit. In any case in which the director determines that unusual circumstances make it advisable for the director to act on the application for a permit, he may refuse to grant the permit and submit the application to the city council for action.

D. If the director denies an application for a permit, or issues a permit subject to conditions which the applicant or the contractor who shall do the proposed work, believes to be unreasonable, the applicant may appeal to the city council for issuance of the permit. The city council shall thereafter determine whether the permit shall be issued to the applicant and the terms and conditions under which it shall be issued, and the decisions of the city council shall be final.

E. Nothing in this chapter shall be deemed to make it mandatory for the director or the city council to issue the permit and, upon an appeal to the city council, the decision whether the permit will be issued, and the terms and conditions on which it is issued, rest solely in the discretion of the council and the permit may be denied without cause.

F. Issuance of a permit pursuant to this chapter does not imply or guarantee in any way that the city owns fee title to the real property in which the work is to be done or that the city has sufficient title to the real property in which the street is constructed to grant the sole responsibility of the permittee to secure such consent as may be necessary from the owner of the fee title of the property in which the street is located after he has received the permit.

G. The permit shall only authorize work to be performed in streets, right-of-way or public utility easements over which the city has jurisdiction and any permit issued shall be null and void to the extent that it purports to authorize the performance of work on any street, right-of-way or public utility easement or portions thereof, over which the city does not have jurisdiction.

H. The permit shall be kept at the site of work and shall be shown on demand, to all authorized representatives of the city and to all peace officers. (Ord. 90-19 § 2 (part), 1990)

11.08.100 Permit not transferable.

The permit issued pursuant to the provisions of this chapter shall not be assigned or transferred by the permittee to any other person and any permit which is assigned or transferred by the permittee shall automatically become null and void. (Ord. 90-19 § 2 (part), 1990)

11.08.110 Revocation of permit.

The director may revoke the permit unless the work authorized therein is commenced within sixty days after the date of issuance of the permit, and is thereafter diligently prosecuted to completion in the opinion of the director. The director may revoke a permit pursuant to this section by sending written notice of such revocation to the permittee by ordinary mail at the address shown on the application for the permit, or by personal delivery of such written notice to the permittee. (Ord. 90-19 § 2 (part), 1990)

11.08.120 Notice of commencement of work.

Within twenty-four hours prior to the commencement of work, authorized by a permit, the permittee shall notify the director by telephone or in person of the time when such work will be actually commenced. (Ord. 90-19 § 2 (part), 1990)

11.08.130 Prescribing additional conditions.

At any time prior to the completion of the work authorized by a permit, the director may prescribe such additional conditions as may be deemed necessary for the protection of the street, for the prevention of undue interference with traffic, or to assure the safety of persons using the streets. (Ord. 90-19 § 2 (part), 1990)

11.08.140 Location of pipe and conduits.

All pipes and conduits which are laid parallel to a street pursuant to a permit shall be placed at least five feet from the edge of the pavement or the graded traveled roadway unless otherwise expressly authorized in writing by the director. At least twenty-four inches of dirt, sand or gravel shall be placed over all pipes or conduits installed under a street unless otherwise specified in the permit and the minimum cover shall be measured from the surface of the street existing or planned. The director may permit the installation of pipes or conduits less than twenty-four inches from the surface of the street if twenty-four inches of cover cannot be provided because of topography, existing structures or other engineering necessities. All pipes, conduits, and culverts which cross a street shall intersect both sides of the right-of-way owned by the city. (Ord. 90-19 § 2 (part), 1990)

11.08.150 Protection of traveling public.

The permittee shall take all precautions necessary to protect the safety of the traveling public. Barricades, lights, warning signs and flagmen shall be provided and maintained by the permittee when necessary, at his own expense, until the excavation is refilled, the obstruction removed, and the street is safe for the use of the traveling public. The director may specify in the permit the safety devices and measures to be used by the permittee. The failure of the director to specify in the permit the safety devices or measures to be provided by the permittee shall not relieve the permittee of his obligation to furnish all safety devices and measures which are necessary. Warning signs, lights and devices shall conform to the requirements of the Vehicle Code of the state of California and city of Dinuba development standards. If the director finds, at any time, that suitable safeguards are not being provided by the permittee, the director may provide and maintain such safeguards as he deems necessary or he may cancel the permit and restore the street to its former condition, all at the expense of the permittee. (Ord. 97-4 § 10, 1997; Ord. 90-19 § 2 (part), 1990)

11.08.160 Removing trees.

The director shall not issue a permit to remove a tree from a street unless he determines that there is good and sufficient reasons for the removal of such tree. When a tree is removed, pursuant to a permit, the entire stump shall be taken out of the ground for a distance of at least two feet below the ground surface unless otherwise specified in the permit and the hole shall be backfilled and tamped. All resulting debris shall be removed from the site and the street shall be restored to its former condition. It is unlawful for any person to remove, top or trim any tree standing in any public way, without first obtaining a permit to do so from the city and unless in accordance with the provisions of this chapter. This provision shall not apply to minor trimming and pruning which does not involve the place of ladders or equipment in a public way other than according to parking regulations or the falling or piling of debris in a public way. (Ord. 90-19 § 2 (part), 1990)

11.08.170 Monuments.

It is unlawful for any person to remove or disturb or cause to be removed or disturbed, any monument of granite, concrete, iron or other material which has been set for the purpose of locating or preserving the lines or elevations of a street, property subdivision, or a precise survey point or reference point, without first obtaining the consent of the director and the city engineer to do so. The permittee shall, at his own expense, replace any monument which has been disturbed or removed without the consent of the director and the city engineer. (Ord. 90-19 § 2 (part), 1990)

11.08.180 Restoration of streets.

Immediately upon completion of the work authorized by the permit, the permittee shall refill the excavation or remove obstruction in a good workmanlike manner to insure against settlement. Saturated or unsuitable materials shall be removed from the excavation and shall be backfilled with suitable materials and thoroughly tamped. If a treated or modified subgrade of a street has been removed and destroyed as a result of the excavation, the permittee shall replace the subgrade to a thickness of not less than that of the adjacent subgrade. Crushed rock may be used to replace modified subgrade. If a treated or modified road surface has been removed and destroyed as a result of the excavation, the permittee shall replace the road surface to a thickness and width not less than that of the original surface and he shall use the same type of material as the original surface. All work performed pursuant to this section shall be performed according to the standard specifications of the city and to the satisfaction of the director. If the permittee fails or refuses to repair and restore the street to the satisfaction of the director or according to the standard specifications of the city within a reasonable time, the director shall cause the damaged portion of the street to be repaired and restored and the permittee shall reimburse the city for the full costs of such work. If at any time subsequent to the first repair of the surface of a street it becomes necessary to again repair the surface due to settlement or any other cause directly attributed to such excavation or construction, the director shall cause such repairs to be made and the permittee shall reimburse the city for the full cost of such additional repairs. (Ord. 90-19 § 2 (part), 1990)

11.08.190 Notice of completion.

Upon completion of the work authorized by the permit, the permittee shall file with the director a notice of completion of the work on a form prescribed by the director. (Ord. 90-19 § 2 (part), 1990)

11.08.200 Failure to comply with permit.

It is unlawful for a permittee to make, or cause to be made, any excavation or construction, or to be placed upon, maintain or leave any obstruction or impediment to travel, or pile or place any material in or upon any street, or to install or maintain, or cause to be installed or maintained any tank, pipe, conduit, duct, tunnel, curb, gutter, sidewalk or other structure, in, upon or under the surface of any street at any location or in any manner other than as set forth in the permit and this chapter. (Ord. 90-19 § 2 (part), 1990)

11.08.210 Performance by employee, agent or contractor.

Performance of any of the duties and obligations imposed upon a permittee by the permit or this chapter by any agency, employee or independent contractor employed by the permittee shall be deemed to constitute performance of such duties and obligations by the permittee. (Ord. 90-19 § 2 (part), 1990)

11.08.220 Interference with subsequent street work.

If any tank, pipe, conduit, duct, tunnel or other structure or installation of any nature or kind, which has been constructed or installed in a street pursuant to a permit, shall at any time after completion of the construction or installation interfere with the use, repair, improvement, widening or change of grade of the street, the permittee, his successors and assignees, within ten days after receipt of a written notice from the director to do so, shall at his own expense either remove such structure or installation or, subject to the approval of the director relocate it at another site designated by the director. (Ord. 90-19 § 2 (part), 1990)

11.08.230 Damage to encroachments.

The applicant for a permit shall agree that the city shall not be held responsible for any damage to any structure or installation which is not clearly and visibly marked, by the construction, reconstruction, maintenance or repair or by use of overweight equipment on the street. The permittee, his successors and assignees, upon being notified of such damage by the director shall immediately repair, remove or relocate the damage structure or installation. (Ord. 90-19 § 2 (part), 1990)

11.08.240 Fees.

The signator of the agreement shall pay to the city prior to issuance of any permit, a fee in the amount of four percent of the reasonable or contract price of the improvement or work to be done, whichever is greater. The determination of such value shall be made by the director. Failure to undertake the work shall not be grounds for refund of any part of such fee.

No fee shall be required of any public agency or public utility company operating under a franchise issued by the city or state of California. (Ord. 90-19 § 2 (part), 1990)

11.08.250 Remedies.

No provisions of this chapter shall be deemed to bar any legal, equitable, or summary remedy to which the city or any person may otherwise be entitled. (Ord. 90-19 § 2 (part), 1990)

11.08.260 Violation—Infraction.

Any person, firm or corporation violating any of the provisions of this chapter, including any or all other amendments, revisions or supplements, is guilty of an infraction and, upon conviction, shall be punished accordingly, as set forth in Section 1.16.010 of this code. If any violation is continued, each day’s violation is deemed a separate infraction. (Ord. 96-2 § 8, 1996: Ord. 90-19 § 2 (part), 1990)