A. It is unlawful for any person, firm or corporation to place, erect or maintain, or to permit the placing, erection, maintenance or existence of any encroachment, as defined in Section 12.20.010, upon, over or under any street, avenue, lane, alley, sidewalk, court, place, public way, property or rights-of-way, now open or dedicated or which may hereafter be opened or dedicated to public use within the city, or upon, over or under any property belonging to the city, without a permit from the city engineer granted as provided in this chapter or, if the encroachment is by a pipeline for conveyance of petroleum products to or from a refining facility, without a license agreement therefor approved by the city council.

B. Any person, firm or corporation desiring to place, erect or maintain any such encroachment as defined in Section 12.20.010 shall make application for a permit at the office of the city engineer. Such application shall contain the name and address of the applicant, a description of the proposed encroachment and the proposed location thereof, the period of time for which such encroachment is proposed to be maintained, and such other information as may be required by the city engineer. Such application shall further contain an agreement on the part of the applicant that if such application is granted, the applicant will indemnify and save and hold harmless the city, its agents, officers and employees against and from all damages, judgments, claims, demands, expenses, costs and expenditures, and against all loss or liability which the city or such officers, agents or employees may suffer, or which may be recovered from or obtainable against the city or such officers, agents or employees, legally caused by, growing out of, or in any way connected with, the placing, erection or maintenance of such encroachment, and upon the expiration of such permit or the revocation thereof, the applicant will, at his or her own cost and expense, remove the same from the public property or right-of-way where the same is located and restore such public property or right-of-way to the condition as nearly as that in which it was before the placing, erection, maintenance or existence of such encroachment. Such application shall also contain an agreement on the part of the applicant to keep all liability insurance required by the city manager in full force and effect for however long the encroachment remains.

Upon the receipt of such application, the city engineer shall make an investigation to determine if the maintenance of such encroachment will substantially interfere with the use of the public property, right-of-way or other public place where the same is proposed to be placed, erected or maintained, and whether the placing, erection or maintenance of such encroachment will constitute a hazard to persons using such public property, right-of-way or other public place. Upon the completion of such investigation, the city engineer shall, at his or her discretion, either grant or deny the applicant a permit to place, erect and/or maintain such encroachment. Such permit, if granted, may be granted for a definite time or for annual renewal, and the city engineer may impose such conditions to the granting of the same as in his or her discretion will best serve the public interest. In any event, a permit granted by the city engineer pursuant to this section is revocable at any time by the city engineer.

If the application is denied, the department shall advise the applicant in writing of the basis for denial. The applicant shall have ten days from the mailing of such denial by city to appeal. The written request for appeal must be received by the city clerk within such time period. Upon timely receipt of a written request for an appeal, the city clerk shall schedule the matter for hearing with the city manager or designee within sixty days of receipt of the request. If the applicant is a video service provider as defined in Section 5.48.010 of this code, pursuant to Section 5885 of the Public Utilities Code, the applicant shall have ten days from the mailing of such denial by city to appeal. The written request for appeal must be received by the city clerk within such time period. Upon timely receipt of a written request for an appeal, the city council shall schedule the matter for hearing at the next available city council meeting.

Upon the revocation of any such permit, the city engineer shall give notice in the form and manner specified in Section 12.20.030 to the applicant for such permit or to the person maintaining such encroachment. It is unlawful for a person, firm or corporation to place, erect or maintain or to permit the placing, erection, maintenance or existence of an encroachment upon, over or under any street, avenue, lane, alley, sidewalk, court, place, public way, property or right-of-way after his or her permit has expired, after his or her permit has been revoked and the time specified in the notice from the city engineer for removal of the same has expired, or after required insurance has expired, lapsed, been reduced or revoked. An encroachment permit may be granted in the central business zone and commercial center zone for restaurants or other establishments serving food or beverages in the encroachment area; however, all the requirements of subsections C and D of this section shall be followed in addition to all other requirements of this chapter. Fees or charges for the issuance of any permit under this chapter may be imposed by resolution or ordinance of the city council.

C. In addition to the requirements of subsections A and B of this section, any person, firm or corporation applying for an encroachment permit as defined in Section 12.20.010 for the purposes of serving food or beverages (restaurant service) in the central business zone or commercial center zone shall comply with each and all of the following: comply with all building and fire codes; comply with all rules, orders and regulations of the Bakersfield building and fire departments including, but not limited to, entry, exit and emergency requirements; immediately grant access to any public utility easement in, under, above or associated with the granted encroachment to any public utility or governmental entity upon request; allow no less than six feet of clear space between the encroachment and the curb as measured from the closest point to the curb line; maintain the sidewalk within the encroachment in a safe condition free of cracks, holes or defects; remove any encroachment upon written notice by the city engineer as specified in this chapter; maintain as a minimum insurance as required by the city manager and immediately report any change or interruption of insurance coverage.

D. If any alcoholic beverages are to be served by the person, firm or corporation applying for an encroachment permit as defined in Section 12.20.010 within the central business zone or commercial center zone they shall, in addition to the requirements of subsections A, B and C of this section, comply with each and all of the following: obey all orders, rules and regulations of the alcohol beverage control board for the state of California; erect only temporary barriers sufficient to prevent intermingling of patrons and pedestrians which have been approved by the city engineer and which have been proven to the satisfaction of the city engineer to be removable within forty-eight hours or less and shall be at least four feet in height but no more than five feet in height; provide the city engineer and the city risk management department with a certificate of insurance evidencing coverage as required in this section for encroachments serving alcoholic beverages; the city manager may, in making the investigation of the application, determine the necessity for additional insurance and may require anyone holding an encroachment permit to obtain additional insurance at any time; prevent any and all possession of alcohol in the encroachment area after ten p.m.; prevent alcoholic beverages from being removed from the encroachment area into the street; obey all orders from the Bakersfield police department concerning public safety; apply annually for permit renewal. Current holders of lawfully issued encroachment permits where food and beverages are being served in encroachments as set forth above are deemed to have a current valid permit, for the life of such permit, so long as the rules and regulations set forth in this chapter are not violated.

E. Except as otherwise required under this section for encroachments granted for the purpose of serving food, beverages or alcoholic beverages, no permit shall be granted under this chapter until and unless the applicant has provided the city engineer and city risk management department with a certificate of insurance evidencing coverage for bodily injury or property damage liability, or both, unless such requirement is waived by the city manager. The city engineer shall, in making the investigation of the application, determine the necessity for and appropriate amount of such required insurance.

F. For encroachments under subsections C and D of this section (food and beverage service including alcoholic beverages), no permit shall be granted under this chapter until and unless the applicant has provided the city engineer and the city risk management department with a certificate of insurance evidencing coverage in the following minimums for bodily injury or property damage liability, or both, of one million dollars in comprehensive general liability, and statutory workers’ compensation in a form and with companies approved by the city. All insurance to be placed with companies rated at A:VII or equivalent. All policies shall have the city as an additional insured and shall require the city be notified of cancellation or material change in coverage. No waiver of the insurance requirements of this section shall be granted except by the city manager and all certificates of insurance under this section shall be approved by the city’s risk management department. (Ord. 4698 § 1, 2012; Ord. 4444 § 3, 2007; Ord. 3855 §§ 2—7, 1998; Ord. 3140 § 1, 1988; Ord. 3085 § 1, 1987; Ord. 2659 § 1, 1981; prior code § 12.32.020)