CITY OF OJAI RESOLUTION NO. 15-25 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OJAI REVERSING THE DECISION OF THE PUBLIC WORKS DIRECTOR AND GRANTING AN ENCROACHMENT PERMIT FOR A ROCK WALL LOCATED IN THE PUBLIC RIGHT OF WAY AT 520 FOOTHILL ROAD, OJAI, CALIFORNIA ASSESSOR'S PARCEL NUMBER: 020-0-040-030 WHEREAS, the Ojai Municipal Code provides for the issuance of encroachment pennits for plantings in the public right of way and for construction of private improvements in the public right of way. (Ojai Municipal Code, Title 7, Chapter 1.) Section 7.1.212 of Article 1 of Chapter 1 of Title 7 of the Ojai Municipal Code permits the Director to refuse to issue a pennit when he finds that it is not in the best interests of the general public to do so; and when he finds that it will be detrimental to the public health, safety or welfare to do so. The City Council may consider the same grounds in acting on an appeal ofthe Director's denial of an encroachment pennit; and WHEREAS, the owner of real property, Ms. Cindy Convery ("Owner"), commonly described as 520 Foothill Road, Ojai, California, Ventura County, California, Assessor's Parcel No. 022-0-040-030 ("Subject Property"), submitted a request on April 17, 2015 for a modified Encroachment Permit to legalize a partially constructed three-foot high rock wall and to permit construction of the remainder of the wall in the public right of way on the Foothill Road frontage of the Subject Property; and WHEREAS, the request was considered and denied by the Public Works Director of the City of Ojai ("Director") on April 24, 2015; and WHEREAS, on May 10,2015, the Owner appealed the Director's denial of the pennit to the City Council. A public hearing was held by the City Council on June 9, 2015 for consideration of the project, and notice of this City Council hearing was published in the Ojai Valley News at least 10 days prior to the June 9, 2015 public hearing; and WHEREAS, after taking public testimony and hearing evidence from the Director and the applicant, the City Council desires to reverse the decision of the Director and instead grant the requested Encroachment Permit. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF OJAI DOES HEREBY RESOLVE AND ORDER, AS FOLLOWS: SECTION I. The foregoing recitals are true and correct. SECTION 2. The City Council concludes that approving the requested modified encroachment pennit, legalizing a partially constructed three-foot high rock wall and pennitting construction of the remainder of the wall in the public right of way on the Foothill Road frontage of the Subject Property, complies with Section 7.1.212 of Article 1 of Chapter 1 of Title 7 of the Ojai Municipal Code. Construction of the proposed rock wall on the Subject Property within the public right of way is within the best interests of the general public because the rock wall was originally built in the 1920s with the residence on the Subject Property, is now Resolution No. 15-25

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deteriorated, and its restoration would benefit the general public by improving the appearance of the neighborhood. Additionally, the proposed rock wall, consistent with other existing rock walls in the public right of way along Foothill Road, provides some flood protection benefits to the general public. The proposed rock wall is on the other side of an existing drainage ditch from the existing roadway of Foothill Road. The City has no plans to widen the roadway to the full extent of the public right of way at present or within the foreseeable future. Widening of Foothill Road is not on the City's list of future public works projects and the City has not sought any funding for such a widening project. Therefore, placement of the proposed rock wall in the public right of way, on the other side of the drainage ditch from the present roadway of Foothill Road, is not detrimental to the public's health, safety, or welfare. SECTION 3. In view of all of the evidence in the record of the proceedings in this appeal and based on the foregoing findings and recitals, the City Council grants the appeal, reverses the decision of the Director, and grants the request for a modified Encroachment Permit to legalize a partially constructed three-foot high rock wall and to permit construction of the remainder of the wall in the public right of way on the Foothill Road frontage of the Subject Property, subject to the following conditions:

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The Owner will execute and City will record an Encroachment Permit Agreement. Exhibits to be provided by the Owner necessary for the Encroachment Permit Agreement include: o o o

Legal Description Of The Benefitting Property Legal Description Of Encroachment Area A Complete Description Of The Project

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The permitted improvements within the Encroachment Area are limited to the wall, foundations and footings, as well as landscaping and related improvements as depicted in the Encroachment Permit Agreement to be executed ("Project").

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City grants Owner permission to encroach on, under and along the public right-of-way within the Encroachment Area, for the purpose of the construction and maintenance of the Project. Construction and maintenance of the Project shall be at the sole cost and expense of Owners and shall substantially conform to the renderings as attached to the Encroachment Permit Agreement to be executed. Owners assumes all cost of maintenance of the encroachment areas as well as improvement made thereto along with maintaining the insurance required by the Encroachment Permit Agreement and assuming liability for all risks arising from the rights and obligations set forth in the Encroachment Permit Agreement.

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Owners shall maintain the Project free from any graffiti and shall remove graffiti promptly. In the event any portion of the Project is damaged, Owners shall promptly repair or replace the damaged improvements. All landscaping within the Encroachment Area shall be kept in good condition.

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Any and all damage to the right-of-way or any improvements and infrastructure contained therein resulting from the activities of Owners shall be repaired by Owners at no expense to City, and to the reasonable satisfaction of City.

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Owners shall remove or relocate, without cost or expense to the City, any portion of the improvements if and when made necessary by any abandonment, change of grade, alignment or width of any street, sidewalk or other public facility, including the construction, maintenance, or operation of any other City underground or aboveground facilities. In the event all or any portion of said public right-of-way occupied by said facilities shall be needed by the City or in the event the existence of said facilities shall be considered detrimental to the public health, safety, welfare, or convenience or to governmental activities, including but not limited to, interference with the City construction projects, or is in conflict vertically and/or horizontally with any proposed City installation, Owners shall remove any improvements. Said removal shall be completed within ninety (90) days of notification by the City unless exigencies dictate a shorter period for removal or relocation. In the event said facilities are not removed within said period of time, the City may cause the same to be done at the sole expense of Owners. Further, in the event of an emergency, the City may remove or relocate such facilities without prior notice to Owners provided that they are notified within a reasonable period thereafter.

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Owners shall maintain commercial general liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence covering the Encroachment Area and any improvement thereon. Such insurance shall: (1) name the City of OJai, its officers, agents, employees and volunteers as additional insureds; (2) be primary with respect to insurance or self-insurance programs maintained by the City, and (3) contain standard separation of insureds provisions.

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Owners shall (i) furnish properly executed certificates of insurance to the City prior to exercising its rights under this Permit and prior to execution of the Encroachment Permit Agreement, which certificates shall clearly evidence all coverages required above and provide that such insurance shall not be materially changed or terminated except on 30 days prior written notice to the City (ii) attach a completed and signed copy of the City's "Additional Insured Endorsement" form, a copy of which is attached hereto as Exhibit C, to the certificates of insurance noted above; (iii) maintain such insurance throughout the life of the Encroachment Permit Agreement; and (iv) replace such certificates for policies prior to expiration.

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Owners agree to and shall defend, indemnify and hold the City, its officers, agents, employees, and representatives harmless from all suits and causes of action, claims, charges, damages, demands, judgments, civil fines, and penalties or losses of any kind or nature whatsoever, arising out the Encroachment Permit Agreement for all claims of any kind including without limitation, for damage or claims for damage for personal injury, including death, and claims for property damage which may arise directly or indirectly from the Encroachment Permit Agreement or damage to the Project including but not limited to those claims which arise out of: I) the performance or the failure to perform the obligations in the Encroachment Permit Agreement by Owners, or their contractors, subcontractors, agents, employees, or other persons acting on their behalf and, 2) the design, placement, maintenance, repair, or condition of the Project. This indemnity and obligation to hold harmless shall apply regardless of whether or not the City prepared, supplied, or approved plans or specifications or inspected any of the work or improvements installed and constructed pursuant to the Encroachment Permit Agreement.

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In no event shall the City be liable, under any theory, to Owners for any damage to the Project caused by any excavation or work performed by the City at or near the location of the Project except and to the extent caused by the City's willful misconduct.

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The parties agree that no possessory interest is created by the Encroachment Permit Agreement. However, to the extent that a possessory interest is deemed created, Owners acknowledge that notice is and was hereby given to Owners pursuant to California Revenue and Taxation Code Section 107.6 that use or occupancy of any public property pursuant to the authorization herein set forth may create a possessory interest which may be subject to the payment of property taxes levied upon such interest. Owners shall be solely liable for, and shall pay and discharge prior to delinquency, any and all possessory interest taxes or other taxes levied against Owners' right to possession, occupancy, or use of any public property pursuant to any right of possession, occupancy, or use created by the Encroachment Permit Agreement.

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The Encroachment Permit Agreement shall be binding upon and inure to the benefit of the successors and assigns of Owners. Owners shall take all reasonable steps necessary to ensure that any successor or assignee has knowledge of all terms and conditions of the Encroachment Permit Agreement.

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The following conditions shall apply when any work is being conducted on the Project: Notification: • City: Prior to commencing any encroachment work (or in the event of an emergency repair, as soon as practical), the Permittee shall notify the City Public Works Department at phone 646-5581 ext. 200 of the time of commencing the work and provide the name, address, telephone number, and license number of the contractor who will be performing the work. •

Public: A sign shall notify the public of work scope, beginning and ending date, and contact information (company/name/phone number).

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Permits Available Or In Vehicles: The Permittee shall make the permit available for inspection by the Director, or his representative, or by any peace officer or other person having responsibility for safety or maintenance of a highway. The Director hereby requires that a copy of the approved Permit, with all attachments, shall be kept at each jobsite while work is being conducted and available for inspection by a City representative.

Traffic Control: The permittee or contractor shall provide, and continually maintain, construction area traffic control signs, striping, properly equipped flagmen, and other traffic control devices. All traffic controls shall be in accordance with the California Traffic Manual (most recent edition). Failure to provide acceptable traffic control or to comply with any other condition of the Permit will result in ajob shutdown until released by the City. Resolution No. 15-25

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Preservation of Drainage: If the encroachment work interferes with the established drainage, the permittee shall provide for proper drainage in a manner approved by the Director. Replacement: All improvements within the road right of way, which include road signs, road striping, road symbols, and the like, which are damaged, removed, or obliterated as a result of the permittee's work shall be repaired and/or replaced. Repairs or replacements shall be equal to, or better than, the existing improvements and shall match them in finish and dimensions. Cleanup After Completion: Immediately after the completion of the work, the permittee shall clean up and remove all materials, earth, and debris of any kind. If the permittee fails within twenty-four (24) hours after having been notified to do so by the City, the work may be done by the City and the permittee charged for the costs incurred. PASSED, APPROVED AND ADOPTED this 9th day of June 2015 by the following roll call vote: AYES: Blatz, Clapp, Haney, Lara, Weirick NOES: None ABSTAIN: None ABSENT: None AI, CALIFORNIA

ATTEST:

-\U~Pw-k~ Rhonda K. Basore, City Clerk

APPROVED AS TO FORM:

Matthew T. Summers, Interim Assistant City Attorney

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