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Ordinance 2006-06ORDINANCE NO. 2006, -06 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GILROY PROVIDING FOR THE MAINTENANCE AND REPAIR OF PUBLIC USE EASEMENTS AND THE LIABILITY OF ADJACENT PROPERTY OWNERS BY ADDING ARTICLE X ENTITLED "MAINTENANCE AND REPAIR OF PUBLIC USE EASEMENT AREA" TO CHAPTER 20 OF THE GILROY CITY CODE WHEREAS, the California Streets and Highways Code ( "Streets and Highway Code ") section 5600 et seq. imposes a duty upon an owner of property adjacent to a public sidewalk area, which may include a public use easement area, to maintain the public use easement area in such condition that it will not endanger persons or property and maintain it in a condition which will not interfere with the public convenience in the use of those public use easement areas, and also provides for a procedure for assessing the cost of repair of the public use easement areas upon the adjacent property owner in the event that the property owner fails to repair the public use easement area; and WHEREAS, pursuant to section 5615 of the Streets and Highways Code, the Superintendent of Streets and Repairs (in the City of Gilroy this would be the City Engineer) may repair and maintain a public use easement area, if the adjacent property owner does not, and then assess and charge the adjacent property owner for costs of such repairs; and WHEREAS, this ordinance clarifies the public use easement area maintenance responsibility of the adjacent property owner, and in addition, makes them liable to members of the general public for personal or property damage that results from the landowner's failure to maintain the adjacent public use easement area; and WHEREAS, this ordinance is exempt from the requirements of the California Environmental Quality Act of 1970 ( "CEQA "), as amended, because it does not involve an activity that may cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. 1JH1678052.3 01 -013106- 04706084 -I- Ordinance No. 2006 -06 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY DOES HEREBY ORDAIN AS FOLLOWS: SECTION I Chapter 20 of the Gilroy City Code entitled "Streets and Sidewalks" is hereby amended by adding a new Article X, entitled "Maintenance and Repair of Public Use Easement Area" which shall read as follows: 20.115 Maintenance and repair of public use easement area. (a) The maintenance and repair of public use easement areas and the making, confirming and collecting of assessments for the cost and expenses of said maintenance and repair may be done and the proceedings therefor may be had and taken in accordance with this Article and the procedure provided in the Streets and Highways Code section 5600 et seq. as the same is now in effect or may hereafter be amended. In the event of any conflict between the provisions of the Streets and Highways Code section 5600 et seq. and this Article, the provisions of this Article shall control. For purposes of State law, the City Engineer shall be the superintendent of streets and highways. (b) The owners of lots or portions of lots subject to a public use easement area, and persons in possession of such lots by virtue of any permit or right ( "Property Owners ") shall repair and maintain such public use easement areas and pay the costs and expenses therefor, including a charge for the City's costs of inspection and administration whenever the City awards a contract for such maintenance and repair, and including the costs of collection of assessments for the costs of maintenance and repair under subsection (a), above, of this section or handling of any lien placed on the property due to failure of the property owner to promptly pay such assessments. The Property Owners shall have the primary and exclusive duty to perform such repairs and maintenance, whether or not the City has notified the Property Owners of the need for such repairs or maintenance or has performed similar maintenance or repairs in the past. (c) For the purposes of this Article, the definition of "public use easement area" shall mean the area between the public road right -of -way property line and the public use easement line, and includes, but is not limited to, sidewalks, street trees, planting strips, and any curbing, swales, berms, retaining walls or soundwalls, or other works for the protection of any sidewalk, or planting strip. (d) For the purposes of this Article, maintenance and repair of public use easement area shall include, but not be limited to, maintenance and repair of surfaces including grinding, removal and replacement of public sidewalks, repair and maintenance of curb, gutters and hardscape, removal and filling or replacement of planting strips, removal of weeds and debris, WH1678052.3 2_ 01- 013106 - 04706084 Ordinance No. 2006 -06 removal or replacement of diseased, damaged or dead trees, tree trimming, tree root pruning and installing root barriers, trimming of shrubs and /or ground cover and trimming shrubs within the public use easement area, so that the public use easement area will remain in a condition that is not dangerous to property or to persons using the pubic use easement area in a reasonable manner and will be in a condition which will not interfere with the public convenience in the use of said public use easement area area. (e) Notwithstanding the provisions of section 5614 of the Streets and Highways Code, the City Engineer or his or her designee may in his or her discretion, and for sufficient cause, extend the period within which required maintenance and repair of public use easement areas must commence by a period of not to exceed ninety (90) days from the time the notice referred to in said Section 5614 is given. (f) No improvements, repairs or maintenance within the public use easement area shall be installed or performed, including the planting or removal of trees, without obtaining a permit from the City. 20.116. Liability for injuries to public. The Property Owner required by Section 20.115 to maintain and repair the public use easement area shall owe a duty to members of the public to keep and maintain the public use easement area in a safe and non - dangerous condition. If, as a result of the failure of any Property Owner to maintain the public use easement area in a non - dangerous condition as required by Section 20.115, any person suffers injury or damage to person or property, the Property Owner shall be liable to such person for the resulting damages or injury. 20.117. Alternative procedure. This Article constitutes a separate and alternative procedure for performing the work specified herein, and no other provision of this chapter shall apply to proceedings instituted hereunder. 20.118. Policies and guidelines. The City Council may by resolution adopt policies and guidelines concerning the public rights -of ways and public use easements. SECTION II If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Gilroy hereby declares that it would have passed and adopted this ordinance, and each section, subsection, sentence, clause or phrase IJH1678052.3 _3 _ 01- 013106 - 04706084 Ordinance No. 2006 -06 hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases may be declared invalid or unconstitutional. SECTION III This Ordinance shall be in full force and effect thirty (30) days after the date of its passage and adoption. PASSED AND ADOPTED this 27th day of February, 2006, by the following vote: AYES: COUNCILMEMBERS NOES: COUNCILMEMBERS ABSENT: COUNCILMEMBERS ATT T onda Pellin, City Clerk W H1678052.3 01- 013106 - 04706084 ARELLANO, BRACCO, CORREA, GARTMAN, VALIQUETTE, VELASCO, and PINHEIRO NONE NONE M APPROVED Albert Pinheiro, Mayor Ordinance No. 2006 -06 I, RHONDA PELLIN, City Clerk of the City of Gilroy, do hereby certify that the attached Ordinance No. 2006 -06 is an original ordinance, or a true and correct copy of a city ordinance, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 27th day of February, 2006, at which meeting a quorum was present, and has been published or posted pursuant to law. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Gilroy this 7th day of February, 2006. City Clerk of the City of Gilroy (Seal)