It is the purpose of this chapter to establish regulations governing
the placement and construction of obstructions and encroachments within
City rights-of-way.
(Ord. 87-02; 88-08)
Nothing contained in this chapter shall prohibit any person
from using sidewalks or curbs for such length of time as is reasonably
necessary for the purpose of loading or unloading goods, wares or
merchandise at the point of pick-up or delivery.
Unless the conduct is pursuant to issued permit or other lawful
authority, it shall be unlawful for any person to block, impede or
obstruct or to otherwise prevent, delay, hinder or interfere with
the free passage of persons on a City street.
Applications for permits authorizing encroachments and the administration
of the permit procedure shall be made in accordance with this title.
No encroachment application shall be approved when it is determined
by the City Engineer that the encroachment will adversely affect the
public health, safety, or general welfare.
Applications for encroachment permits shall be accompanied by
an encroachment maintenance and removal covenant signed by the property
owner. This covenant shall be prepared by the City Engineer and shall
contain the following provisions and such other provisions as may,
in the opinion of the City Engineer, be necessary to afford protection
to the property owner, City, and public utilities:
A. The
covenant shall run with the land and be binding upon and inure to
the benefit of the future owners, encumbrances, successors, heirs,
personal representatives, transferees, and assigns of the respective
parties.
B. Permittee
shall use and occupy the City property only in the manner and for
the purposes approved by the City Engineer.
C. Permittee
shall acknowledge title to the City property to be in the City and
shall waive all right to contest that title.
D. The
term of the encroachment permit is to be set by the City Engineer
and may be revoked by the City or abandoned by permittee at any time.
The City shall mail written notice of revocation to permittee, addressed
to the benefited property which shall set forth the date upon which
the benefits of encroachment permit are to cease.
E. City
is entitled to remove all or a portion of the improvements constructed
by the permittee in order to repair, replace, or install public improvements.
City shall have no obligation to pay for or restore permittee's improvements.
F. Permittee
shall agree to indemnify and hold the City harmless from and against
all claims, demands, costs, losses, damages, injuries, litigation,
and liability arising out of or related to the use, construction,
encroachment or maintenance to be done by the permittee or permittee's
agents, employees or contractors on City property.
G. Upon
abandonment or revocation, permittee shall, at no cost to the City,
return City property to its pre-permit condition within the time specified
in the notice of revocation or prior to the date of abandonment.
H. If
permittee fails to restore the City property, the City shall have
the right to enter upon the City property, after notice to the permittee,
delivered at the benefited property, and restore the City property
to its pre-permit condition to include the removal and destruction
of any improvements and permittee agrees to reimburse the City for
the costs incurred.
I. If
either party is required to incur costs to enforce the provisions
of this covenant, the prevailing party shall be entitled to full reimbursement
for all costs, including reasonable attorney's fees.
J. Permittee
shall agree that the permittee's duties and obligations under the
covenant are a lien upon the benefited property. Upon 30-day notice,
and an opportunity to respond, the City may add to the tax bill of
the benefited property any past-due financial obligation owing to
City by way of the covenant.
K. Permittee
shall waive the right to assert any claim or action against the City
arising out of or resulting from the revocation of the permit or the
removal of any improvements or any other action by the City, its officers,
agents, or employees taken in a non-negligent manner, in accordance
with the terms of the permit.
L. Permittee
shall recognize and understand that the permit may create a possessory
interest subject to property taxation and that the permittee may be
subject to the payment of property taxes levied on such interest.
M. As
a condition precedent to the permittee's right to go upon the City
property, the permit must first be signed by the permittee, notarized
executed by the City and recorded with the County Recorder of the
County of San Diego. The recording fee shall be paid by the permittee.
The following provisions of this section shall apply unless
provision is otherwise made by an agreement pursuant to this chapter.
A. In
the event the City is required to place, replace or maintain a public
improvement over which the property owner has constructed an encroachment
structure, the property owner shall pay the City that portion of the
cost of placement, replacement or maintenance caused by the construction,
or existence of the owner's permanent encroachment structure.
B. The
property owner shall pay the City for all 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 owner's encroachment structure.
C. The
costs of placing, replacing or maintaining the public improvement
shall include the cost of obtaining a necessary alternate easement.
D. The
property owner shall pay the City or public utility for all costs
of relocating, replacing, or protecting a facility within the public
right-of-way when such relocation, replacement or protection results
from the construction of an encroachment.