§ 129.0715 — Encroachment Maintenance and Removal Agreement

§129.0715 Encroachment Maintenance and Removal Agreement

(a) An Encroachment Maintenance and Removal Agreement is required for any privately-owned and/or privately-maintained encroachment located in the public right-of-way or in a public service easement subject to the following: (1) The encroachment shall not adversely affect the public’s health, safety, or general welfare and shall be installed and maintained in a safe and sanitary condition at the sole cost, risk and responsibility of the record owner or permit holder, as applicable, to the satisfaction of the City Engineer. (2) The record owner or permit holder, as applicable, shall agree to indemnify the City with an indemnification agreement satisfactory to the City Manager and City Attorney. For streetaries and active sidewalks allowed in accordance with Section 141.0621, the indemnification shall include any claims, damages, or injuries that occur to or within the streetary or active sidewalk area against the City or any utility provider whose facilities are located within the public right-of-way. (3) The record owner or permit holder, as applicable, shall agree to and shall remove or relocate the encroachment to the satisfaction of the City Engineer within 30 days after notice by the City Engineer, or the City Engineer may cause such work to be done, and the costs thereof shall be a lien upon said land, or the record owner or permit holder, as applicable, shall agree to an equivalent to the requirement for removal as determined by the City Engineer. The record owner or permit holder, as applicable, may also be required to remove a streetary to the satisfaction of the City Engineer at no cost to the City or any other utility provider that owns or maintains facilities within the public right-of-way to avoid flooding or to protect public health and welfare. The record owner or permit holder, as applicable, may also be required to remove a streetary to provide non-emergency access to any utility provider that owns or maintains facilities located within the public right-of-way with 30 days notice. Active sidewalks allowed in accordance with Section 141.0621 shall not be required to be removed by the record owner or permit holder, as applicable. (4) For encroachments over or under the public right-of-way, the record owner or permit holder, as applicable, shall agree to and shall provide an alternate public right-of-way or relocation of any existing or proposed City facility to a new alignment, all without cost or expense to the City, whenever it is determined by the City Engineer that any existing or proposed City facility cannot be economically placed, replaced, or maintained due to the presence of the encroachment. (5) Whatever rights and obligations were acquired by the City with respect to the public right-of-way or public service easement shall remain and continue in full force and effect and shall in no way be affected by the City’s grant of permission to construct and maintain the encroaching structure. (6) Except as provided in Section 129.0715(a)(7), the record owner or permit holder, as applicable, shall maintain a minimum policy of $1 million liability insurance, satisfactory to the City Engineer, to protect the City from any potential claims which may arise from the encroachment. (7) For encroachments serving a single dwelling unit, the record owner or permit holder, as applicable, shall maintain a policy of $500,000 liability insurance satisfactory to the City Engineer to protect the City from any potential claims which may arise from the encroachments. (8) In the event the City is required to place, replace, or maintain a public improvement over which the record owner or permit holder, as applicable, has constructed an encroachment, the record owner or permit holder shall pay the City that portion of the cost of placement, replacement, or maintenance caused by the construction or existence of the encroachment. (9) The record owner or permit holder, as applicable, shall pay the City for the cost of placing, replacing, or maintaining a public improvement within a public right-of-way when the City’s facility has failed as a result of the construction or existence of the encroachment. (10) The costs of placing, replacing, or maintaining the public improvement shall include the cost of obtaining a necessary alternate easement. (11) The record owner or permit holder, as applicable, shall pay the City or public utility, as applicable, for all costs of relocating, replacing, or protecting a facility within the public right-of-way or public service easement when such relocation, replacement, or protection results from the construction or existence of the encroachment. (b) The City may require a record owner or permit holder, as applicable, to record the Encroachment Maintenance and Removal Agreement in the Office of the County Recorder. However, a record owner or permit holder, as applicable, shall record in the Office of the County Recorder any Encroachment Maintenance and Removal Agreement for a streetary and active sidewalk allowed in Section 141.0621 and a promenade allowed in Section 141.0629.

(Amended 11-28-2005 by O-19444 N.S.; effective 2-9-2006.) (Amended 6-18-2013 by O-20261 N.S.; effective 7-19-2013.) (Amended 5-5-2015 by O-20481 N.S.; effective 6-4-2015.) (Amended 11-23-2021 by O-21391 N.S.; effective 1-6-2022.)