Rialto Municipal Code Ch. 11.05 Encroachment License Agreements

An encroachment license agreement consists of a discretionary approval by the city council to allow installation of permanent structures or private utilities (the "encroachments") constructed within public right-of-way that require additional conditions imposed by the city council relative to their installation, operation and perpetual maintenance than is otherwise authorized by an encroachment permit administratively issued by the city engineer pursuant to Chapter 11.04. An encroachment license agreement shall be revocable for cause by the city council pursuant to the conditions, and subject to the notice, required by this Chapter 11.05.

(Ord. No. 1531, § 2, 8-27-13)

In the city engineer's sole discretion, upon a determination that an encroachment license agreement shall be required for an encroachment otherwise administratively approved by the city engineer pursuant to Chapter 11.04, or as otherwise required by Section 11.05.030, an application shall be filed as herein required. In addition to the requirements of Chapter 11.04, an application for an encroachment license agreement shall be filed in a manner and on forms prescribed by the city engineer and shall be accompanied by the payment of a filing fee as prescribed by resolution of the city council. The application form shall, at a minimum, contain the following information in a clear and legible manner suitable for recordation:

A. Legal description of the adjoining property deriving the potential benefit of the encroachment;

B. Other identifying information for such property, including street address and assessor's parcel number of such property;

C. A description of the encroachment, both in the form of a narrative and drawings (including plan and profile to legible scale) showing the type, nature and extent of the encroachment;

D. An acceptable current title report, excerpt or lot book report that establishes the legal ownership of such property;

E. The identity and original, notarized signature(s) of the legal owner(s) of such property, as necessary to establish a legally-binding agreement and covenant that shall run with the title of the land; and

F. Any other information that, in the opinion of the city engineer, is necessary to adequately evaluate the application including, but not limited to, property line survey, topography, geotechnical reports, drainage studies and construction details of the proposed encroachment.

(Ord. No. 1531, § 2, 8-27-13)

A. Encroachment license agreements shall be required to authorize installation of permanent structures, such as structural retaining walls, stairs, building projections, or other building improvements subject to approval by the development services director, building official, or other city office having authority to issue building permits. Issuance of a building permit for structures encroaching into the public right-of-way shall be conditioned on the approval of an encroachment license agreement pursuant to this Chapter 11.05.

B. Encroachment license agreements also shall be required to authorize installation of privately owned underground utilities constructed within public right-of-way that solely benefit adjacent private properties, but not public utilities otherwise authorized pursuant to a franchise agreement approved by the city council in accordance with Section 6001 et seq. of the California Public Utilities Code.

C. An encroachment license agreement shall not be used for any structure or improvement that, if removed, will create any nonconforming conditions or unlawful conditions under the provisions of the municipal code or any other codes, regulations or standards incorporated therein.

(Ord. No. 1531, § 2, 8-27-13)

An encroachment license agreement shall be approved when it can be reasonably demonstrated that the encroachment will not interfere with the present and prospective public use of a street or right-of-way and generally will conform to the following requirements:

A. It is located in a manner that is not hazardous to the traveling public, including motorists, bicyclists and pedestrians;

B. It is sufficiently set back from the edge of pavement or street centerline to provide adequate travel, parking and walking lanes;

C. It does not conflict with any existing utilities in any manner that necessitates relocation thereof at public expense or causes any other unacceptable interference, including impediments to the maintenance, relocation or repair of underground pipelines, conduits or substructures of any such utility;

D. It will not preclude public access, use or enjoyment of any area that has historically provided such access, use or enjoyment;

E. It is not precedent setting in nature to the extent that it creates a noticeable projection into the streetscape established by existing construction and improvements on neighboring properties; and

F. It does not create structures of unusual or unacceptable appearance, form, shape or height that detract from the general quality of the streetscape.

(Ord. No. 1531, § 2, 8-27-13)

Any encroachment determined by the city engineer to require an encroachment license agreement shall be approved by the city council at a regularly scheduled meeting. However, public notice of and a public hearing to consider approval of the encroachment license agreement shall not be required.

(Ord. No. 1531, § 2, 8-27-13)

Encroachment license agreements shall be recorded with the office of the San Bernardino County Recorder in favor of the adjoining property benefitting from the encroachment authorized to be installed pursuant to such agreement, and the original copy shall be permanently maintained with the city clerk of the city of Rialto in sequentially indexed order.

(Ord. No. 1531, § 2, 8-27-13)

The applicant for an encroachment license agreement, and any successor, assign or future holder of interest in the adjoining property benefitting from the encroachment authorized to be installed pursuant to such agreement, shall maintain adequate liability insurance coverage with terms and amounts required by such agreement, and shall hold the city, its officers, employees and agents harmless from any damages arising out of the installation, operation and maintenance of the encroachments in perpetuity. Failure to maintain required liability insurance shall be cause for revocation of the encroachment license agreement by the city council pursuant to Section 11.05.100.

(Ord. No. 1531, § 2, 8-27-13)

The maintenance and repair of an encroachment that has been installed by an encroachment license agreement shall be the responsibility of the applicant, and any owner, successor, assign or future holder of interest in the adjoining property benefitting from the encroachment authorized to be installed pursuant to such agreement. Failure to maintain the encroachment in good repair and to a reasonable prevailing standard, subject to the sole judgment of the city engineer, shall be cause for revocation of the encroachment license agreement by the city council pursuant to Section 11.05.100.

(Ord. No. 1531, § 2, 8-27-13)

Any encroachment proposed or authorized under this Chapter 11.05 shall comply with all other codes, regulations or standards contained or incorporated within this code, including Chapter 11.04. Prior to performing the work to construct or install the encroachment authorized pursuant to an encroachment license agreement, an encroachment permit shall be issued by the city engineer pursuant to Section 11.04.073.

(Ord. No. 1531, § 2, 8-27-13)

The city council of the city of Rialto reserves the right to order the modification or removal of any encroachment authorized pursuant to an encroachment license agreement pursuant to the following requirements:

A. Grounds for Modification or Revocation.

1. Providing false or misleading information in the application for an encroachment license agreement.

2. Failure to comply with one or more of the terms, conditions or restrictions incorporated in the encroachment license agreement.

3. Failure to maintain the encroachment authorized by the encroachment license agreement.

4. Failure to maintain general liability insurance required by the encroachment license agreement.

5. Failure to maintain membership in underground service alert, and to adequately identify for protection the encroachment, as may be required by the encroachment license agreement.

6. Failure to facilitate the public access to, and enjoyment of the public right-of-way by other parties, including public utility companies operating under a franchise agreement approved by the city council in accordance with Section 6001 et seq. of the California Public Utilities Code.

B. Process for Modification or Revocation.

1. Upon a finding by the city engineer that one or more grounds for modification or revocation of an encroachment license agreement has been established, the city engineer shall serve an initial thirty-day notice to the applicant of such agreement, and any known successor, assign or future holder of interest in the adjoining property benefitting from the encroachment authorized to be installed pursuant to such agreement. The initial thirty-day notice shall identify the grounds for modification or revocation and provide for an opportunity to cure.

2. Upon the conclusion of the initial thirty-day cure period, if the grounds for modification or revocation have not be eliminated to the satisfaction of the city engineer, the city engineer shall serve a final thirty-day notice of intention to the modification or revocation of the encroachment license agreement by the city council.

3. Upon the conclusion of the final thirty-day notice, if the grounds for modification or revocation have not be eliminated to the satisfaction of the city engineer, the city clerk shall schedule a public hearing by the city council for consideration of the modification or revocation of the encroachment license agreement for a regularly scheduled city council meeting occurring not less than thirty days following the conclusion of the final thirty-day notice thereby served. The city clerk shall provide the applicant and any known property owners benefitting from the encroachment a minimum ten-day notice of the public hearing to consider the modification or revocation of the encroachment license agreement.

4. If, at the time of the scheduled public hearing duly noticed by the city clerk, the grounds for modification or revocation have not be eliminated to the satisfaction of the city engineer, the city council shall conduct the public hearing, consider any and all testimony received regarding the proposed modification or revocation of the encroachment license agreement, and approve or deny the proposed modification or revocation.

(Ord. No. 1531, § 2, 8-27-13)

A. The applicant for an encroachment license agreement, and any successor, assign or future holder of interest in the adjoining property benefitting from the encroachment authorized to be installed pursuant to such agreement, shall be responsible for the removal, at no cost to the city of Rialto, of such encroachment and restoration of the public right-of-way to the satisfaction of the city engineer, within thirty days of the revocation of the encroachment license agreement by the city council pursuant to Section 11.05.100.

B. Any person failing to comply with the provisions of this chapter shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine not to exceed one thousand dollars or by imprisonment for a period not to exceed six months, or by both such fine and imprisonment. The punishment for violation of the provisions of this chapter are cumulative, and in addition to any other remedies set up in this chapter.

C. In the event removal of an encroachment pursuant to this chapter does not occur to the satisfaction of the city engineer, the city may proceed with the removal and restoration of the public right-of-way, and shall charge such costs jointly against the applicant and adjoining property benefitting from the encroachment authorized to be installed pursuant to an encroachment license agreement revoked by the city council. Any and all of such charges, including the city's administrative costs and attorneys' fees, shall be applied as a lien against the properties so benefitted, pursuant to Section 38773.5 of the California Government Code, and transmitted to the San Bernardino County Tax Collector for collection.

(Ord. No. 1531, § 2, 8-27-13)