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HomeMy WebLinkAboutORD NO 3855ORDINANCE NO. 8 8 5 5 AN ORDINANCE AMENDING CHAPTER 12.20 SUBSECTION 12.20.020 AND 12.20.030 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO ENCROACHMENTS. WHEREAS, the City of Bakersfield initiated a proposal to amend Chapter 12 of the Bakersfield Municipal Code; specifically, adding subsection A to Section 12.20.020 of Chapter 12 relating to encroachment permits for restaurants and other establishments serving food or beverages; and WHEREAS, the City Council through its City Clerk set Wednesday, July 15, 1998, at the hour of 7:00 p.m, in the City Council Chambers of City Hall, 1501 Truxtun Avenue, Bakersfield, California, as the time and place to consider said ordinance; and WHEREAS, the ordinance was found to be exempt from the provisions of CEQA and the law and regulations as set forth in CEQA and the City of Bakersfield Implementation Procedures have been duly followed by City staff and this Council; and WHEREAS, "Sidewalk use, including but not limited to outdoor seating, subject to issuance of an encroachment permit" is listed as a permitted use in the Central Business Zone and the Commercial Center Zone of the Bakersfield Municipal Code, Chapters 17.25 and 17.26; and WHEREAS, the City Council desires to facilitate outdoor dining in the Central Business Zone and Commercial Center Zone; and WHEREAS, to facilitate said outdoor dining the City may allow temporary encroachments into the right-of-way under strictly regulated conditions; and WHEREAS, it is not the intention to confer any property rights in the encroachment area; and WHEREAS, the City shall have the absolute right to revoke the encroachment for any reason or no reason at all including, but not limited to, policing problems or public safety concerns; and WHEREAS, all encroachments and associated structures shall be temporary; and WHEREAS, the City Council recognizes that some encroachments must be subject to greater and stricter regulation than others and desires that the encroachment ordinance reflect differing levels of regulation based on the type of encroachment; and -- Page 1 of 7 Pages -- WHEREAS, the City Council did consider the ordinance, all relevant facts, and public testimony. NOW THEREFORE, BE IT ORDAINED by the Council of the City of Bakersfield as follows: SECTION 1. The Council of the City of Bakersfield hereby finds the project exempt from CEQA per section 15061(b)(3) of the State CEQA Guidelines. SECTION 2. Subsection A of Section 12.20.020 of the Bakersfield Municipal Code is hereby amended to read as follows: 12.20.020 Permit Requirements - Revocation. A. It is unlawful for any person, firm or corporation to place, erect or maintain, or to permit the placing, erection, maintenance or existence of any encroachment, as defined in Section 12.20.010, upon, over or under any street1 avenue, lane, alley, sidewalk, court, place, public way, property, or rights-of-way, now open or dedicated or which may hereafter be opened or dedicated to public use within the City, or upon, over or under any property belonging to the City, without a permit from the City Engineer granted as provided in this Chapter or, if the encroachment is by a pipeline for conveyance of petroleum products to or from a refining facility, without a license agreement therefor approved by the City Council. SECTION 3. Subsection B of Section 12.20.020 of the Bakersfield Municipal Code is hereby amended to read as follows: 12.20.020 Permit Requirements - Revocation. B. Any person, firm or corporation desiring to place, erect or maintain any such encroachment as defined in Section 12.20.010 shall make application for a permit at the office of the City Engineer. Such application shall contain the name and address of the applicant, a description of the proposed encroachment and the proposed location thereof, the period of time for which such encroachment is proposed to be maintained, and such other information as may be required by the City Engineer. Such application shall further contain an agreement on the part of the applicant that if said application is granted, the applicant will indemnify and save and hold harmless the City, its agents, officers and employees against and from all damages, judgments, claims, demands, expenses, costs and expenditures, and against all loss or liability which the City or such officers, agents or employees may suffer, or which may be recovered from or obtainable against the City or -- Page 2 of 7 Pages -- OR~G!NAL such officers, agents or employees, legally caused by, growing out of, or in any way connected with, the placing, erection, or maintenance of such encroachment, and upon the expiration of said permit or the revocation thereof, the applicant will, at his own cost and expense, remove the same from the public property or right-of-way where the same is located and restore said public property or right"of-way to the condition as nearly as that in which it was before the placing, erection, maintenance or existence of said encroachment. Such application shall also contain an agreement on the part of the applicant to keep all liability insurance required by the City Manager in full force and effect for however long the encroachment remains. Upon the receipt of such application, the City Engineer shall make an investigation to determine if the maintenance of said encroachment will substantially interfere with the use of the public property, right-of-way or other public place where the same is proposed to be placed, erected or maintained, and whether the placing, erection or maintenance of said encroachment will constitute a hazard to persons using said public property, right-of-way or other public place. Upon the completion of such investigation, the City Engineer shall, at his discretion, either grant or deny the applicant a permit to place, erect and/or maintain said encroachment. Said permit, if granted, may be granted for a definite time or for annual renewal, and the City Engineer may impose such conditions to the granting of the same as in his discretion will best serve the public interest. In any event, a permit granted by the City Engineer pursuant to this section is revocable at any time by the City Engineer. Upon the revocation of any such permit, the City Engineer shall give notice in the form and manner specified in Section 12.20.030 to the applicant for such permit or to the person maintaining said encroachment. It is unlawful for a person, firm or corporation to place, erect or maintain or to permit the placing, erection, maintenance or existence of an encroachment upon, over or under any street, avenue, lane, alley, sidewalk, court, place, public way, property or right-of-way after his permit has expired, after his permit has been revoked and the time specified in the notice from the City Engineer for removal of the same has expired, or after required insurance has expired, lapsed, been reduced or revoked. An encroachment permit may be granted in the Central Business Zone and Commercial Center Zone for restaurants or other establishments serving food or beverages in the encroachment area; however all the requirements of Sections 12.20.020(C) and (D) shall be followed in addition to all other requirements of this Chapter. Fees or charges for the issuance of any permit under this Chapter may be may be imposed by resolution or ordinance of the City Council. SECTION 4. Subsection C is hereby repealed and a new Subsection C is hereby added to 12.20.020 of the Bakersfield Municipal Code to read as follows: 12.20.020 Permit Requirements - Revocation. C. In addition to the requirements of Sections 12.20.020(A) and (B), any person, firm or corporation applying for an encroachment permit as defined in Section 12.20.010 for the purposes of serving food or beverages (restaurant service) in the Central Business Zone or Commercial Center Zone shall comply with each and all of the following: comply -- Page 3 of 7 Pages -- _L~ ~K~'4~-~ ORDINAL with all building and fire codes; comply with all rules, orders, and regulations of the Bakersfield Building and Fire Departments including, but not limited to, entry, exit and emergency requirements; immediately grant access to any public utility easement in, under, above or associated with the granted encroachment to any public utility or governmental entity upon request; allow no less than six (6) feet of clear space between the encroachment and the curb as measured from the closest point to the curb line; maintain the sidewalk within the encroachment in a safe condition free of cracks, holes or defects; remove any encroachment upon written notice by the City Engineer as specified in this Chapter; maintain as a minimum insurance as required by the City Manager and immediately report any change or interruption of insurance coverage. SECTION 5. A new Subsection D is hereby added to 12.20.020 of the Bakersfield Municipal Code to read as follows: 12.20.020 Permit Requirements - Revocation. D. If any alcoholic beverages are to be served by the person, firm or corporation applying for an encroachment permit as defined in Section 12.20.010 within the Central Business Zone or Commercial Center Zone they shall, in addition to the requirements of Sections 12.20.020(A), (B) and (C), comply with each and all of the following: obey all orders, rules and regulations of the Alcohol Beverage Control Board for the State of California; erect only temporary barriers sufficient to prevent intermingling of patrons and pedestrians which have been approved by the City Engineer and which have been proven to the satisfaction of the City Engineer to be removable within forty-eight (48) hours or less and shall be at least four (4) feet in height but no more than five (5) feet in height; provide the City Engineer and the City Risk Management Department with a certificate of insurance evidencing coverage as required in this Section for encroachments serving alcoholic beverages; the City Manager may, in making the investigation of the application, determine the necessity for additional insurance and may require anyone holding an encroachment permit to obtain additional insurance at any time; prevent any and all possession of alcohol in the encroachment area after 10:00 p.m.; prevent alcoholic beverages from being removed from the encroachment area into the street; obey all orders from the Bakersfield Police Department concerning public safety; apply annually for permit renewal. Current holders of lawfully issued encroachment permits where food and beverages are being served in encroachments as set forth above are deemed to have a current valid permit, for the life of said permit, so long as the rules and regulations set forth in this Chapter are not violated. Page 4 of 7 Pages -- ORIGINAL SECTION 6. A new Subsection E is hereby added to 12.20.020 of the Bakersfield Municipal Code to read as follows: 12.20.020 Permit Requirements - Revocation. E. Except as otherwise required under Section 12.20.020 for encroachments granted for the purpose of serving food, beverages or alcoholic beverages, no permit shall be granted under this Chapter until and unless the applicant has provided the City Engineer and City Risk Management Department with a certificate of insurance evidencing coverage for bodily injury or property damage liability, or both, unless such requirement is waived by the City Manager. The City Engineer shall, in making the investigation of the application, determine the necessity for and appropriate amount of such required insurance. SECTION 7. A new Subsection F is hereby added to 12.20.020 of the Bakersfield Municipal Code to read as follows: 12.20.020 Permit Requirements - Revocation. F. For encroachments under 12.20.020(C) and (D) (food and beverage service including alcoholic beverages), no permit shall be granted under this Chapter until and unless the applicant has provided the City Engineer and the City Risk Management Department with a certificate of insurance evidencing coverage in the following minimums for bodily injury or property damage liability, or both, of One Million Dollars ($1,000,000) in comprehensive general liability, and statutory Workers' Compensation in a form and with companies approved by the City. All insurance to be placed with companies rated at A:Vll or equivalent. All policies shall have the City as an additional insured and shall require the City be notified of cancellation or material change in coverage. No waiver of the insurance requirements of this Section shall be granted except by the City Manager and all certificates of insurance under this Section shall be approved by the City's Risk Management Department. SECTION 8. Subsection A of Section 12.20.030 of the Bakersfield Municipal Code is hereby amended to read as follows: 12.20.030 Removal after notice. A. Any person, firm or corporation, whose property encroaches in any manner upon, over or under any property of the City, or any street, avenue, lane, alley, sidewalk, court, place, public way, property or rights-of-way, now open or dedicated or which may -- Page 5 of 7 Pages -- ORIGINAL hereafter be opened or dedicated to public use within the City, who does not have a valid permit from the City Engineer for the placing, erection and/or maintenance of such encroachment shall remove the same after written notice by the City Engineer demanding such removal. SECTION 9. Subsection D of Section 12.20.030 of the Bakersfield Municipal Code is hereby added to read as follows: 12.20.030 Removal after notice. D. If any encroachment as defined in this Chapter is not removed as required by this Chapter the City Engineer may cause the same to be removed and charge the expense thereof, including, but not limited to, any administrative expense, to the holder of the encroachment permit at the time the removal was required. SECTION 10. This Ordinance shall be posted in accordance with the provisions of the Bakersfield Municipal Code and shall become effective thirty (30) days from and after the date of its passage. .............. 000 .............. -- Page 6 of 7 Pages -- ORfGJNAL I HEREBY CERTIFY that the foregoing Ordinance was passed and adopted by the Council of the City of Bakersfield at a regular meeting thereof held on ,~ll~ ! ! ~ by the following vote: AYES: NOES: ABSTAIN: ABSENT: COUNCILMEMBER CARSON, D~E~MMOND, SMITH, MCDERMOTT, ROWLES,.,~I.I~.LH'~ff~, SALVAGGIO COUNCiLMEMBER COUNCILMEMBER COUNCILMEMBER A~slatant CITY CLERK and EX OFFICIO of the Council of the City of Bakersfield APPROVED: A~G ~ BOB PRICE, ~I'AYOR CITY OF BAKERSFIELD APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY AEAN_D. ' DAN ~=~-/~;~ ~ -; _"] ASSISTANT CITY ATTORNEY ADD:dlr S RCOUNCIL~ORD~ncroachStaffOrd.wpd Page 7 of 7 Pages -- AFFIDAVIT OF POSTING DOCUMENTS STATE OF CALIFORNIA) ) SS. County of Kern ) PAMELA A. McCARTHY, being duly sworn, deposes and says: That she is the duly appointed, acting and qualified City Clerk of the City of Bakersfield; and that on the 14th day of August ,1998 she posted on the Bulletin Board at City Hall, a full, true and correct copy of the following: Ordinance No. 3855 , passed by the Bakersfield City Council at a meeting held on the 12th day of August. 1998 , and entitled: AN ORDINANCE AMENDING SECTION CHAPTER 12.20 SUBSECTION 12.20.020 AND 12.20.030 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO ENCROACHMENTS. /s/PAMELA A. McCARTHY City Clerk of the City of Bakersfield DEPUTY City Clerk S:\DOCU MENT~AOPOSTING August 14, 1998