Loading...
HomeMy WebLinkAboutOrdinances - No. 1948ORDINANCE NO. 1948 AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE 12. STREETS, SIDEWALKS AND PUBLIC PLACES - BY REPEALING AND REENACTING CHAPTER 12.04, .ENCROACHMENTS," IN ITS ENTIRETY NOW, THEREFORE, BE IT ORDAINED BY THE LODI CITY COUNCIL AS FOLLOWS: Section 1. Lodi Municipal Code Title 12 - Streets, Sidewalks and Public Places - is hereby amended by repealing and reenacting Chapter 12.04, "Encroachments," in its entirety. CHAPTER 12.04 STREETS, SIDEWALKS AND PUBLIC PLACES SECTIONS: Article l. Generally 12.04.010 12.04.020 12.04.030 12.04.040 12.04.050 Article ll. Permits 12.04.060 12.04.070 12.04.080 12.04.090 12.04.100 12.04.110 12.04.120 12.04.130 12.04.140 12.04.150 Article lll. Bonds 12.04.160 12.04.170 12.04.180 12.04.190 12.04.200 Definitions Public Employees and Contractors Excepted Emergency Work lndemnification and lnsurance Right of Lawful Use Required Application lssuance Refusal- Grounds Refusal - Appeal Term - Beginning Work Completion of Work Display Changes Fees Required Cash ln Lieu Annual Continuing Use Additional 1 12.04.210 12.04.220 12.04.230 Provisions Payment - Release Public Utilities or Agencies Article lV. Practices and Requirements Safeguards Notice - Start of Work Notice - Completion of Work lnterference with Traffic Restoration of Street - Maintenance Relocation or Removal City Specifications and Standards Small Pipes - Surface Cutting - Tunneling Minimum Cover Backfilling Heavy Vehicles Mailboxes Trees Hedges, Fences or Other Structures Lawns Marking Street, Sidewalk or Curb Monuments Gutter Construction at Driveways Disused Driveways Sidewalk Seating Area 12.04.240 12.04.250 12.04.260 12.04.270 12.04.280 12.04.290 12.04.300 12.04.310 12.04.320 12.04.330 12.04.340 12.04.350 12.04.360 12.04.370 12.04.380 12.04.390 12.04.400 12.04.410 12.04.420 12.04.425 Article V. Violation-Penalty 12.04.430 Violation - Penalty 12.04.440 Declaration of Nuísance Article l. - Generally 12.04.010 - Definitions. For the purposes of this chapter, the following words and phrases shall have the meanings respectively ascribed to them by this section: A. "Applicant" means any person, as defined, that has filed an application to do work or encroach upon a public street or right-of-way as defined in this chapter. B. "Director" means the public works director of the city. C. "Encroach" and "encroachment" mean going upon, over, under or using any right-of-way in such a manner as to prevent, obstruct, damage, or interfere with the normal use of that way or property, and may include the performance thereon of any of the following acts: 1. Excavating or disturbing the right-of-way; 2. Constructing, placing, leaving, erecting or maintaining any post, sign, pole, fence, barricade, guardrail, wall, furniture, goods, equipment, construction material, loading platform or other structure or object on, over, or under the right-of-way; 2 3. Planting any tree, shrub or other growing thing within the right-of-way; 4. Placing or leaving on the right-of-way any rubbish, brush, earth, or other material of any nature whatever; 5. Constructing, placing, leaving, 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, or any pipe, conduit, or cable; 6. Travefing on the right-of-way by any vehicle or combination of vehicles or object of dimension, weight or other characteristic prohibited by law without a permit; 7. Lighting or building a fire; 8. Constructing, placing, leaving, planting, or maintaining any structure, embankment, excavation, tree, or other object adjacent to the right-of-way which causes or will cause an encroachment; or 9. Other activities which may impede the normal access to the right-of-way. D. "Permittee" means any person(s), as defined, that proposes to do work or encroach upon a public street or right-of-way as defined in this chapter and has been issued a permit for such encroachment by the director. All obligations, responsibilities and other requirements of the permittee, as described in this chapter, shall be binding on subsequent owners of the encroachment. E. "Person" means a natural person(s), legal entity, firm, company, corporation, limited liability company, partnership, association, and public agency or organization. F. "Public street" means the full width of the right-of-way of any road, street, lane or alley used by or for the general public, whether or not those roads, streets, lanes, and alleys have been accepted as and declared to be part of the city system of public streets, except streets forming a part of the state highway system. G. "Right-of-way" means land which by deed, conveyance, agreement, easement, dedication, usage, or process of law is reserved for and dedicated to the use of the general public for street or highway purposes, public parks, and public property. H. "Sidewalk seating area" means the use of a public sidewalk for the placement of tables, chairs, benches, and related items. 12.04.020 - Public employees and contractors excepted. This chapter shall not apply to any officer or employee of the city in the discharge of his official duties, or to any work being performed by any person under contract with the city. 12.04.030 - Emergency work. This chapter shall not prevent any person from maintaining any pipe or conduit lavufully on or under any public street, or from making excavation, as may be necessary for the preservation of life or property when an urgent necessity therefor arises during the hours the offices of the city are closed, except that the person making an emergency use or encroachment on a public street shall apply for a permit therefor within one calendar day after the offices of the city are again opened. 3 12.04.040 - lndemnification and lnsurance. Permittee shall be responsible for all liability imposed by law for personal injury or property damage proximately caused by work permitted and done by permittee under the permit, or proximately caused by failure on permittee's part to perform his obligations under such permit in respect to maintenance. lf any claim of such liability is made against the city, its elected and appointed officials, officers, employees, or agents, the permittee shall defend, indemnify and hold them, and each of them, harmless from such claim insofar as permitted by law. Prior to the issuance of a permit, the permittee shall provide to the city, in a form and in amounts acceptable to the risk manager, certificates of insurance, naming the city as an additional insured, covering the scope of work described in the permit and application. 12.04.050 - Right of lawful use. 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. Article ll. - Permits 12.04.060 - Required. A. lt is 1. 2. 3. 4. 5. 6. 7. 8. 9. unlawful for any person, without first obtaining a written permit, to: Encroach or to make or cause to be made any encroachment of any nature whatever within, upon, over or under the limits of any right-of-way in the incorporated territory of the city; or Make or cause to be made any alteration of any nature within, upon, over or under such right-of-way; or Construct, put upon, maintain or leave on any right-of-way, or to cause to be constructed, put upon, maintained or left thereon, any obstruction or impediment of any nature whatever; or Remove, cut or trim trees on such right-of-way; or Set a fire on such right-of-way; or Place on, over or under such right-of-way any pipeline, conduit or other fixture; or Move over or cause to be moved over the surface of any right-of-way or over any bridge, viaduct or other structure maintained by the city any vehicle or combination of vehicles or other object of dimension or weight prohibited by law or having other characteristics capable of damaging the right-of-way; or Construct, place, leave, erect, or maintain any sign, pole, fence, barricade, guardrail, furniture, goods, equipment, construction material, structure, wall, culvert or similar encroachment; or Make any excavation or embankment in such a way as to endanger the normal usage of the right-of-way. B. Before a vehicle or combination of vehicles or object of weight or dimension or other characteristic prohibited by law without a permit is moved on any right-of-way, a permit to do so 4 must first be granted by the director as set forth in specifications established by the director, or as otherwise required by the director . 12.04.07 0 - Application. A. The director shall prescribe and provide a regular form of application for the use of any applicant for a permit required by this chapter. The application form shall contain space for the name, address and principal place of business of the applicant, together with such detail as in the judgment of the director is necessary to establish the exact location, dimensions, duration, and purpose of the proposed use or encroachment. B. The applicant shall enclose with, attach or add to the application for a permit a map, plat, sketch, diagram, or similar exhibit, and of a size and in such quantity as may be prescribed, on which shall be plainly shown any and all information necessary to locate, delineate, illustrate, or identify the proposed use or encroachment and the right of applicant to so use or encroach thereon. 12.04.080 - lssuance. The written permits required by this article shall be issued by the director, at his or her discretion, subject to conditions set forth in this chapter or required by law. I 2.04.090 - Refusal-Grounds. No application will be approved nor permit issued for constructing or maintaining a loading platform upon or in the right-of-way of a public street or for erecting or maintaining therein or thereon a post, pole, column, or structure for support for advertising signs; or for any form of food vending by either stationary or mobile vehicles, carts, or other temporary structures; or work that disturbs existing asphalt pavement on streets or alleys that have been resurfaced within the past five years. No applicatíon will be approved nor permit issued for encroachments that will adversely impact the health, safety, and welfare of the city or injure other property, whether real or personal. 12.04.100 - Refusal-Appeal. A. Any person aggrieved by the refusal of a permit required by this article may appeal to the city council. Administration of this chapter is referred to the director. B. lf the city council finds all of the following to be true, the permit shall be granted: 1. The applicant will be substantially damaged by the refusal to grant the permit as requested. 2. No other reasonable method of obtaining the desired result is available except as proposed by the applicant. 3. The granting of the permit will not be materially detrimental to the public interest, safety, health and welfare or injurious to other property. 12.04.110 - Term-Beginning work. The permittee shall begin work or use authorized by permit issued pursuant to this article within ninety days from date of issuance, unless a different period is stated in the permit. lf the work or use is not begun within ninety days, or within the time stated in the permit, then the permit shall become void. A permit for continuing a use or maintaining an encroachment 5 previously authorized shall be valid for a term of one year from date of issuance, unless sooner terminated by discontinuance of the use, or removal of the encroachment for which the permit was issued. 12.04.120 - Completion of work. The permittee shall complete the work or use authorized by a permit issued pursuant to this article within the time and according to the terms specified in the permit. lf the work is unduly delayed by the permittee and if the interest of the public reasonably so demands, the director shall have authority to complete the work or any portion thereof. The actual cost of such a work by the city plus twenty percent as an overhead charge shall be charged to and paid by the permittee or his surety. 12.04.130 - Display. A. The permittee shall keep any permit issued pursuant to this article at the site of work, or in the cab of a vehicle when movement thereof on a public street is involved, and the permit must be shown to any authorized representative of the director or law enforcement officer on demand. B. A permit issued for continued use or maintenance of an encroachment may be kept at the place of business of the permittee or othenryise safeguarded during the term of validity, but shall be made available to an authorized representative of the director or law enforcement officer within a reasonable time after demand therefor is made. 12.04.140 - Ghanges. No changes may be made in the location, dimension, character or duration of the encroachment or use as granted by the permit except upon written authorization of the director. No permit shall be required for the continuing use of maintenance of encroachments installed by public utilities, or for changes therein or thereto where such changes or additions require no excavation of the right-of-way. 12.04.150 - Fees. A.The schedule of fees will be those recommended by the director and established and adopted by the city council from time to time by resolution. Before a permit is issued, the applicant shall deposit with the city cash or check, in a sufficient sum to cover the fee for issuance of the permit, charges for field investigation, and the fee for necessary inspection, all in accordance with schedule established and adopted by the city council. Public utilities may, at the director's option, make payment for the charges provided for in subsection A of this section as billed by the city instead of advance deposit as required in subsection A. Article lll. - Bonds 12.04.160 - Required. Unless this article is waived in the permit and prior to the issuance of a permit, the applicant must file with the director a bond equal to the cost plus twenty percent of the work required to be done in order to comply with all the terms and conditions of such permit as estimated by the director. B t) 12.04.170 - Cash in lieu. ln lieu of a surety bond required by Section 12.04.160, the applicant may deposit cash in the amount described in Section 12.04.160 to secure the performance of the terms and conditions of the permit and the compliance with the provisions of this chapter. 12.04.180 - Annual. As an alternative to the requirements of Section 12.04.160, the applicant may, upon approval of the director, annually file with the director a bond equal to the estimated costs plus twenty percent of the work required to be done in order to comply with all of the terms and conditions of permits issued during the year and to comply with this chapter. 12.04.190 - Gontinuing use. An applicant for a permit for a use or encroachment which is to continue or remain within, under or upon the right-of-way of a public highway beyond the time authorized for construction or installation shall file with the city clerk a cash deposit or surety bond equal to the cost plus twenty percent in order to make the right-of-way safe and convenient for travel to the general public. 12.04.200 - Additional. The director may require an additional bond or cash deposit to supplement those required by Sections 12.04.160 to 12.04.190 at any time when in his or her opinion the amount of the bond or cash deposit previously made is insufficient. 12.04.210 - Provisions. A. The bonds provided for in this article shall be executed by the applicant or contractor doing work as principal and by a surety company authorized to do business in this state as a surety. The bond shall name the city as obligee and shall be conditioned as follows: 1. That each and all of the terms and conditions of the permit shall be fully performed and complied with to the satisfaction of the director; 2. That each and all of the provisions of this chapter are complied with. B. An extension of time for performance of work may be granted by the director, but no such extension of time shall be valid unless written and no such extension shall release any surety company upon any bond. 1 2.04.220 - Payment-Re lease. Any bond or cash deposit required by the director pursuant to this article shall be payable to the city. Upon satisfactory completion of all work authorized in the permit according to the terms of the permit and this chapter the bond or cash deposit shall be released. ln the event of noncompliance, the city may deduct from the cash deposit the actual cost to the city plus twenty percent of work done by the city pursuant to Section 12.04.120 before returning the deposit to the depositor. ln the event of a bond having been posted, the city may proceed against the surety and principal for the actual cost to the city plus twenty percent of work done by the city pursuant to Section 12.04.120. 7 12.04.230 - Public utilities or agencies. Cash deposits or bonds will not be required of any public utility or 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. Article lV. - Practices and Requirements 1 2.04.240 - Safeg uards. A. The permittee in the conduct of the work, use, or maintenance of an encroachment authorized by a permit issued pursuant to this chapter shall comply with all applicable state, federal, and local laws, regulations, and orders and shall provide, erect or maintain such lights, barriers, warning signs, patrols, watchmen and other safeguards as are necessary to protect the traveling public. Any omission on the part of the director to specify in the permit what lights, barriers, or other protective measures or devices are required shall not excuse the permittee from complying with all requirements of law and appropriate regulations and ordinances for adequately protecting the safety of those using public streets. B. A permittee making any excavation or erecting or leaving any obstruction within, under or upon the right-of-way, or causing the same to be made, erected or left, shall place and maintain lights at each end of the excavation or obstruction, at not more than fifty-foot intervals along the excavation or obstruction, from one-half hour before sunset of each day to one-half hour after sunrise of the next day, until the excavation is entirely refilled or the obstruction removed and the right-of-way made safe for use. ln addition, reflectorized warning signs conforming to the requirements of the State Division of Highways shall be placed two hundred and four hundred feet from each excavation or obstruction, in such a position as to adequately warn public traffic. C. The warning signs, lights and other safety devices shall conform to city requirements and the California Department of Transportation's manual. 12.04.250 - Notice-Start of work. A. Before beginning any work including excavation, construction of concrete sidewalks, curbs, gutters, or driveway approaches, planting, trimming or removing trees, making, placing, or causing an obstruction in the right-of-way, the permittee shall notify the director. B. Before.starting work on which an inspector is required, the permittee shall notify the director twenty-four hours in advance of beginning such work. '12.04.260 - Notice-Completion of work. The permittee shall call the city to schedule a final inspection of the work. The permittee shall upon the completion of all work authorized in the permit, notify the director. No work is completed until notification of completion is given pursuant to this section and the work is accepted by the director. 12.04.270 - lnterference with traffic. 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 at the place where the work or use is authorized. Free and unobstructed access shall be provided to all mailboxes, fire hydrants, water gates, valves, manholes, drainage structures, or other public service structures and I property as may be required for emergency use. Such public service structures or property shall not be removed or relocated without proper approval from the constituted authorities charged with their control and maintenance. The work area shall be confined so as not to obstruct roadways and walks unnecessarily. Temporary roadways, driveways, and walks for vehicles and pedestrians shall be constructed where required. 1 2.04.280 - Resto rati on of street-Mai ntenance. A. Upon completion of the work, acts or things for which the permit was issued, or when required by the director, the permittee shall replace, repair, or restore the public street or right- of-way at the place of work to the same condition existing prior thereto unless othen¡vise provided in the permit. The permittee shall move 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 or right-of-way to a safe and usable condition. B. After completion of all work, the permittee shall exercise reasonable care in inspecting and maintaining the area affected by the encroachment. For a period of one year after the completion of the work the permittee shall repair and make good any injury or damage to any portion of the public street or right-of-way which occurs as the result of work done under the permit, including any and all injury or damage to the public street or right-of-way which would not have occurred had such work not been done. By the acceptance of the permit the permittee agrees to comply with the above. The permittee shall, upon notice from the director, immediately repair any injury, damage or nuisance, in any portion of the public street or right-of- way resulting from the work done under the permit. ln the event 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 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 expenses incurred in the performance of such work. 12.04.290 - Relocation or removal. lf any future construction, reconstruction, or maintenance work by the city on a public street or right-of-way requires the relocation, removal, or abandonment of installations or encroachments in, on or under the public street or right-of-way, the permittee owning, controlling or maintaining such installations or encroachments shall relocate, remove, or abandon the same at its sole expense. When removal, relocation, or abandonment is required, the director shall give the permittee a written demand specifying the installations or encroachment that must be removed, relocated, or abandoned. lf such permittee fails to comply with such instructions, the city may cause the removal, relocation, or abandonment of the encroachment at the expense of the permittee. 12.04.300 - Gity specifications and standards. All work done under a permit issued pursuant to this chapter shall conform to specifications established by the director, or in the absence of established specifications to recognized standards of construction and approved practices in connection with the work to be done. All work shall be done subject to the supervision of, and to the satisfaction of the director. 1 2.04.31 0 - Smal I pi pes-S u rface cutti n g-Tu n nel i n g. Utility services and other small diameter pipes or rigid conduits shall be jacked, or otherwise forced underneath a paved surface. The paved surface of a road shall not be cut, I trenched or otheruise disturbed unless specifically authorized in the permit. No tunneling will be permitted except as specifically set forth in the permit. 12.04.320 - Minimum cover. The minimum cover over any and all pipes or conduits larger than two and one-half inches installed within the right-of-way shall be three feet of earth or imported materials, unless othenryise specified in the permit. Within the public street, the minimum cover of three feet shall be measured from the surface, existing or planned. The director is authorized to permit installation of pipes or conduits where three feet of cover cannot be provided because of topography, structures, or other engineering necessity. 12.04,330 - Backfilling. Backfilling of an excavation shall be in accordance with specifications established by the director or as otherwise required by him, or both as to material and method; and backfill shall not be placed in any excavation without compaction of the material used, the degree and method of compaction to be to the satisfaction of the director. 12.04.340 - Heavy vehicles. When authorized by a permit issued pursuant to this chapter to move a vehicle or combination of vehicles or load of dimension or weight in excess of that permitted by law, the permittee shall comply with the general law regulating travel over a public street, including posted signs or notices which limit speed or direction of travel, or weight which may be placed upon a structure or the width or height that may be moved on or over a public street, or otherwise restrict or control travel on a public street. The permittee shall at all times conform to and abide by the practice and procedure necessary to make safe and convenient the travel of the general public, and to keep safe and preserve the public highway over and on which movement is being made. Any violation of this section shall cancel the permit issued to the permittee. 12.04.350 - Mailboxes. All mailboxes must be placed in accordance with the rules and regulations of the United States Post Office Department, but no box shall be so placed within the right-of-way as to endanger the life or safety of the traveling publlc. A permit is not required for the placing of mailboxes. 12.04.360 - Trees. A. The applicant for a permit to plant trees in the right-of-way of a public street shall show in his or her application the exact location of and the kind of trees to be planted. No change shall be made in either location of trees or in kind of trees without the written approval of the director. B. The director may refuse to issue a permit authorizing the planting of trees in the right-of- way of a public street when, in his or her judgment, the location as described in the application, or the nature of growth above or below ground of the kind of tree proposed, will impede or inconvenience travel on a public highway or unduly disturb the right-of-way thereof, or in any way impede construction or maintenance of necessary facilities. C. Trimming of trees will be permitted only when and in the manner authorized by a permit issued pursuant to this chapter in order that the shapeliness of the tree may be preserved. 10 D. An application for removal of a tree will be approved and a permit issued only when a necessity for removal exists, and adjacent property owners concur, or when deemed necessary by the director. When a tree is removed under authority of a permit, the entire stump shall be taken out for a distance of at least two feet below the ground surface unless otherwise specified in the permit, and the hole backfilled and tamped. All debris from trimming or removal shall be removed from the site and the right-of-way restored to its former condition. 12.04.370 - Hedges, fences or other structures. A. No hedge, shrub, or other planting whatever, fence or similar structure, or earth, gravel, rocks, artificial turf, pavers, brick, concrete, or any other material of any nature, except as provided in Section 12.04.380, shall be planted, erected, maintained, orplaced in a right-of-way without a permit. B. No hedge, shrub, or other planting whatever, fence or similar structure shall be maintained across any existing walkway in a sidewalk area or shoulder. The intent of this restriction is to keep free a walkway for pedestrians or other lawful public travel without interference by or with vehicular travel. No encroachment of any nature will be permitted or maintained which impedes, obstructs, or denies such pedestrian of other lawful travel within the limits of the right-of-way of a public street, or which impairs adequate sight distance for safe pedestrian or vehicular traffic. C. The permittee or the owner of the adjacent property shall maintain the hedges, shrubs, walls, fences, or similar structures erected for landscaping purposes in a neat and orderly condition at all times. lf the encroachment is not maintained as specified in this chapter the director may direct the permittee or property owner to remove the encroachment and restore the right-of-way to its former condition, at the expense of the permittee or property owner. 12.04.380 - Lawns. A. Other provisions of this chapter notwithstanding, it is lawful for a person to plant and maintain a lawn of any grass, of a type not prohibited by other law, within the right-of-way of a public street without a written permit. However, the lawn shall not contribute to a dangerous condition of public property, and shall not extend into the traveled way of the public street or into the drainage ditches, gutter or other drainage facilities and shall comply with the Water Efficient Landscape Requirements set forth in section 17.03.70. B. The general public may not be denied the use of the planted area for pedestrian or other lawful travel. The city may use the planted area for any purpose whatever, and may issue a permit to any applicant to go on to perform the work or otherwise encroach pursuant to this chapter. lf the lawn is damaged or disturbed in the course of an authorized encroachment, it shall be removed and replaced by the permittee unless the permit specifically states otherwise. 12.04.390 - Marking street, sidewalk or curb. It is unlawful for any person, without first obtaining a permit, to solicit, on a commercial or donation basis, to place or maintain any number, figure, letter, carving, drawing, design or other marking upon any street, sidewalk or curb; except, that markings for the purpose of identifying survey, utility, or construction locations shall not be subject to this chapter. 12.04.400 - Monuments. Any monument of granite, concrete, iron, or other lasting material set for the purpose of locating or preserving the lines or elevation of any public street or right-of-way, property subdivision, or a precise survey point or reference point, shall not be removed or disturbed or 11 caused to be removed or disturbed without first obtaining written permission from the director to do so, such permission to be granted in conformance with requirements as set forth in specifications established by the director and in the Senate Bill No. 1467, Chapter 400 and California Business & Professional Code Section 8771, as may be amended. Replacement of removed or disturbed monuments will be at the expense of the permittee. 12.04.410 - Gutter construction at driveways. The director shall have the power to require property owners to remove driveway approaches where they are an obstruction to the gutter and to reconstruct driveway approaches where drainage or other conditions are unsatisfactory. 12.04.420 - Disused driveways. Where a curb has been broken to provide a driveway for a residence or a business and such driveway is no longer needed or used as a driveway, the owner of the property or owner or operator of the business shall remove the entire driveway and replace it with curb, gutter, and sidewalk conformíng to the current City Standards. 12.04.425 - Sidewalk seating area. Establishment of a sidewalk seating area shall require the review and approval of an encroachment permit issued by the director and be consistent with the following standards: A. Location. Sidewalk seating within the right-of-way is only permitted within the downtown as it is delineated in the "downtown development standards and guidelines" as approved by the city council. B. Physical Requirements. 1. A minimum four-foot unobstructed sidewalk for pedestrians shall be maintained at all times from a table, chair, bench, display, planter, or any other appurtenance used as part of a sidewalk seating area. 2. No sidewalk seating area shall block access to or from a building. 3. All sidewalk furniture shall be removable and shall be removed, along with seats, tables, and other appurtenances if the business is closed for more than forty-eight hours unless otherwise approved by the director. 4. Any umbrella or similar feature shall be secured safely to a table, chair, or ground. 5. The design and appearance of all proposed improvements or furniture shall present a coordinated theme and shall be compatible with the establishment. 6. No signs shall be permitted in connection with a sidewalk seating area except as may be required by the city for reasons of public health or safety. C, Maintenance. The permittee shall maintain the sidewalk area and the adjoining street, curb, and gutter in a neat, clean, and orderly condition at all times. This shall include all tables, chairs, benches, planters, or other appurtenances placed in the public right-of-way. Trash receptacles to serve the seating area shall be provided as required by the director. D. Special Standards for Sidewalk Dining Areas with Alcoholic Beverage Service. 1. Alcoholic beverages may only be served in sidewalk seating areas which are established in conjunction with a restaurant. For purposes of this section, a restaurant is a business operating within an enclosed building, which has as its 12 primary purpose, the serving of meals prepared on the premises which devotes the majority of its floor space to food preparation and dining, and where any bar or liquor service area is clearly subordinate in both area of the premises and gross receipts to the primary dining function of the restaurant. 2. The sidewalk seating area shall be physically separated from the rest of the sidewalk by a barrier as required by the State of California Department of Alcoholic Beverage Control. The barrier shall be compatible with the appearance and design of the building and the rest of the sidewalk seating area. 3. No bar shall be allowed in the sidewalk seating area. 4. Empty beverage containers shall be removed from the sidewalk seating area as soon as possible. 5. The appropriate city of Lodi use permit and alcoholic beverage control license shall be obtained prior to the operation of a sidewalk seating area serving alcoholic beverages and shall be maintained continuously as long as alcoholic beverages are served in the sidewalk seating area. Loss of such permit or license shall automatically constitute termination of the city approval to serve alcoholic beverages in the sidewalk seating area. E. lndemnification/lnsurance. The permittee shall defend, indemnify, and hold harmless the city and its elected and appointed officials, officers, employees, and agents from and against all claims, losses, damage, injury, and liability for damages arising from the permittee's use of the right-of-way. The permittee shall provide to the city, in a form and in amounts acceptable to the risk manager, certificates of insurance, naming the city as an additional insured covering the area subject to the permit. F. Suspension of Permit. The director shall have the right to suspend or prohibit the operation of a sidewalk seating area or require removal at any time because of anticipated or actual problems or conflicts in the use of the sidewalk area. Such problems or conflicts may arise from, but are not limited to, scheduled festivals, parades, marches, and similar special events; repairs to the street, sidewalk, or other public facility; or from demonstrations or emergencies occurring in the area. To the extent possible, the city will give prior written notice of any time period during which the operation of the sidewalk seating area must be suspended. Article V. - Violation-Penalty 12.04.430 - Violation-Penalty. A. Any person violating the provisions of this chapter or any encroachment permit issued pursuant to this chapter is guilty of a misdemeanor. B. ln addition to any other remedies available at law, any person violating the provisions of this chapter or any encroachment permit issued pursuant to this chapter shall be liable to the city for all expenses and damages caused by any such violation. C. ln addition to any other remedies provided by this chapter, the Lodi Municipal Code, and or State law, there are hereby imposed the following administrative civil penalties for each violation of this chapter or the terms and conditions of any encroachment permit issued pursuant to this chapter. 1. Any person initiating work within the public street or right-of-way without obtaining an encroachment permit shall be subject to and responsible for a fine in the amount of One Thousand Two Hundred Fifty Dollars ($1,250.00) for a first (1st) 13 violation, Five Thousand Dollars ($5,000.00) for a second (2nd) violation, and Ten Thousand Dollars ($10,000.00) for a third (3rd) or subsequent violation. 2. Any person in possession of a valid encroachment permit that initiates work within the public street or right-of-way, but fails to provide notification for inspection as required by this chapter of the Lodi Municipal Code and the permit shall be subject to and responsible for a fine in the amount of Five Hundred Dollars ($500.00) for a first (1st) violation, Two Thousand Five Hundred Dollars ($2,500.00) fora second (2nd) violation, and Five Thousand Dollars ($5,000.00) for a third (3rd) or subsequent violation. D. Each party violating any provision of this chapter or any encroachment permit issued pursuant to this chapter shall be guilty of a separate offense for each and every day on which any such violation is committed, continued, or permitted by any such person. E. ln addition to any penalty, sanction, fine, or imprisonment, any person violating the provisions of this chapter or any encroachment permit issued pursuant to this chapter shall be required to pay any and all expenses of enforcement, including those costs necessary to inspect, remove and/or correct the violation. ln addition to all remedies herein contained, the city may pursue all reasonable and legal means in collecting those sums authorized and due. 12.04.440 - Declaration of Nuisance. The city council finds and declares that an encroachment constitutes a nuisance and provides that an encroachment maintained in violation of this chapter may be removed and abated as such pursuant to Title 1, Chapter 1.10 of the Lodi Municipal Code. Section 2. Severabilitv. lf any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council of the City of Lodi hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be declared unconstitutional or invalid or ineffective. Section 3. No Mandatorv Dutv of Care. This Ordinance is not intended to and shall not be construed or given effect in a manner which imposes upon the City, or any officer or employee thereof, a mandatory duty of care towards persons or property within the City or outside of the City so as to provide a basis of civil liability for damages, except as otheruvise imposed by law. Section 4. Conflict. All ordinances and parts of ordinances in conflict herewith are repealed insofar as such conflict may exist. Section 5 Effective Date and Publication. This Ordinance shall take effect thirty (30) days after its adoption. ln lieu of publication of the full text of the ordinance within fifteen (15) days after its passage, a summary of the ordinance may be published at least five (5) days prior to and fifteen (15) days after adoption by the City Council, and a certified copy shall be posted in the office of the City Clerk pursuant to Government Code section 36933(c)(1). 14 Approved this 21't day of February, 2018 a^\þ.K--ATTEST: ALAN NAKANISHI Mayor NI RAIOLO City Clerk State of California County of San Joaquin, ss l, Jennifer M. Ferraiolo, City Clerk of the City of Lodi, do hereby certify that Ordinance No. 1948 was introduced at a regular meeting of the City Council of the City of Lodi on February 7, 2018, and was thereafter passed, adopted, and ordered to print at a regular meeting of said Council held February 21,2018 by the following vote: AYES: COUNCIL MEMBERS - Chandler, Johnson, Mounce, and Mayor Nakanishi NOES: ABSENT: ABSTAIN COUNCIL MEMBERS - Kuehne COUNCIL MEMBERS - None COUNCIL MEMBERS - None I further certify that Ordinance No. 1948 was approved and signed by the Mayor on the date of its passage and the same has been published pursuant to law. NIFER FERRAIOLO City Clerk Approved to Form D. MAGDICH City Attorney 15