Ordinance No. 13-2110 Rescinding and Readopting Code Chapter 14.08 Encroachments and Use of City Rights-of-Way ORDINANCE, INO. 13-2110
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
RESCINDING AND READOPTING CUPERTINO MUNICIPAL CODE CHAPTER
14.08 (ENCROACHMENTS AND USE OF CITY RIGHTS-OF-WAY)
RECITALS
1. Chapter 14.08 of the Cupertino Municipal Code ("CMC") regulates
encroachments into the public right-of-way.
2. CMC Chapter 14.08 was adopted in 15160 and the City has not made any
significant amendments since it was adopted over fifty years ago.
3. The existing provisions of Chapter 14.08 no longer fully serve the City's needs
because the types and extent of encroachments, and the City's need to regulate such
encroachments, have evolved since Chapter 14.08 was adopted in 1960.
4. The City has determined that a comprehensive update to its requirements for
encroachments into and the use of the public right-of-way is necessary to reflect current
practices.
NOW, THEREFORE, THE CITY COU:\iCIL OF THE CITY OF CUPERTINO
HEREBY ORDAINS AS FOLLOWS:
Section 1. Chapter 14.08 rescinded and readopted. Chapter 14.08 of the
Cupertino Municipal Code is hereby rescinded in its entirety and readopted to read as
follows:
Chapter 14.08
ENCROACHMENTS AND USE OF CITY RIGHTS-OF-WAY
14.08.010 Definitions.
14.08.020 Encroachment permit required.
14.08.030 Exceptions to permit requirement.
14.08.040 Pavement preservation.
14.08.050 Permit application process.
14.08.060 Fees.
14.08.070 Security required.
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14.08.080 Permittee to indemnify City.
14.08.090 Permit approval and issuance.
14.08.100 Notices, term of permit.
14.08.110 Permit valid for described and approved work only.
14.08.120 Display of permit.
14.08.130 Construction requirements.
14.08.140 Extending permit.
14.08.150 Release or revision of bonds and cash deposits.
14.08.160 Ongoing use of right-of-way.
14.08.170 Damage to existing facilities.
14.08.180 Adherence to rules and regulations.
14.08.190 Transfer of permits.
14.08.200 Emergency encroachments.
14.08.210 Abandonment or removal of facilities from right-of-way.
14.08.220 Obstructions deemed public nuisance.
14.08.230 Penalties.
14.08.240 Appeal.
14.08.010 Definitions.
The words and terms used in this chapter shall have the following meanings unless the
context clearly indicates otherwise:
A. "Abandon" or "abandoned facilities" means facilities not used to provide service for
a period of one hundred eighty (180) days, or if the authorization to enter the right-
of-way held by Permittee is revoked, terminated or abandoned.
B. "Arterial Street" -Any street classified as Arterial per the Circulation Element of the
City's General Plan.
C. "Applicable law" means all lawfully enacted and applicable federal, State, and local
laws, ordinances, codes, rules, regulations and orders as may be amended or
adopted from time to time.
D. "Business day" means a day on which the main operations of the City of Cupertino
are open for business and does not mean any day on which only specialized
functions are in operation, such as divisions of the City or its agents that operate on
a 24/7 schedule.
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Page 3
E. "City" means the City of Cupertino, California. Any act that may be taken by the
City, the City Council or any agency, department, agent or other entity now or
hereafter authorized to act on the City's behalf.
F. "City Council" means the governing body of the City of Cupertino, California.
G. "City Engineer" means the City Engineer or his or her designee.
H. "City Manager" means the City Manager, or any person authorized or designated
by the City Manager to act on his or her behalf.
I. "Collector Street" means any street classified as a Minor Collector or Major Collector
per the Circulation Element of the City's General Plan.
J. "Construction," "operation," "maintenance" or "repair" and similar formulations of
those terms mean the named actions interpreted broadly, encompassing, among
other things, installation, extension, maintenance, repair, replacement of
components, relocation, undergrounding, grading, site preparation, adjusting,
testing, make-ready, excavation and tree iximming. The term "operation" does not
encompass or regulate the provision of services or the ownership or use of facilities
in rights-of-way or other property subject to the jurisdiction of the City, but refers to
activities affecting rights-of-way and other property subject to the jurisdiction of the
City.
K. "Days" means calendar days, unless otherwise indicated.
L. "Emergency" means an immediate hazard or danger to life, health or property as
reasonably determined by a Utility.
M. "Emergency encroachment" means an encroachment necessitated by the public
good, safety, health or welfare by a person with facilities located in the right-of-way.
N. "Emergency street cut" means any street cut by a Utility to repair a facility within
the right-of-way to remediate an immediate hazard or danger to life, health or
property, as determined at the discretion of the City Engineer.
O. "Encroach" or "encroachment" includes going upon, over or under a right-of-way,
or using a right-of-way or an area adjacent to a right-of-way in such a manner as to
prevent, obstruct or interfere with the intended or normal use of that way, or a
modification of its mode of use, including; but not limited to:
1. Excavation or disturbance;
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2. Erection, construction, placement or maintenance of any facility;
3. Planting or maintaining any landscaping or hardscape;
4. Placement or maintenance of any waste material, except the placement of
solid waste or recyclables in authorized receptacles for pick-up in accordance
with Chapter 6.24.
P. "Encroachment permit" means a permit issued pursuant to and in conformance
with this chapter.
Q. "Facility" or "Facilities" means any post, sign, pole, fence, guard rail, wall,
pathway, sidewalk, driveway, track, surfacing, culvert, drainage facility, pipe,
appurtenances, conduit, cable, utility cabinet, embankment, excavation, public
improvements, or similar property constructed or placed in the right-of-way.
R. "Fence" means an obstruction of whatever material or composition which is
designed, intended or used to protect, defend or obscure the interior property of the
owner thereof from the view, trespass or passage of others upon the property.
S. "Hardscape" means any constructed flatwork built of concrete, stone, wood, or
other such non-pervious or pervious durable material.
T. "Landscape" means any tree, hedge, shrub, grass, groundcover, plant, or growing
thing excluding City Street Trees as defined by Section 14.12.020.
U. "Material change" means any variation from approved plan other than horizontal
changes of one foot or less.
V. "Minor Encroachment" means a traffic lane closure or physical improvements
located within sidewalk or landscape adjacent to a residential street.
W. "Minor Street Cut" means an asphalt cut on a residential street which total area does
not exceed 30 square feet.
X. "Major Encroachment" means a traffic lane closure or physical improvements
located within sidewalk or landscape adjacent to a Collector or Arterial street.
Y. "Major Street Cut" means an asphalt cut on a residential street with total area in
excess of 30 square feet or an asphalt cut of any size on a Collector or Arterial street.
Z. "Permittee" means any person seeking and/or that has obtained an encroachment
permit pursuant to this chapter.
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Aa. "Utility" means an entity constituting a public utility under State law.
Ab. "Right-of-way" means the surface, the air space above the surface and the area
below the surface of any public street, highway, lane, path, alley, sidewalk,
boulevard, drive, bridge, tunnel, park, park strip, parkway, waterway, easement,
or similar property in which the City now or hereafter holds any property interest.
Ac. "Waste material" means any rubbish, brush, earth or other material of any nature
which is unused, unwanted, discarded or to be recycled.
14.08.020 Encroachment permit required.
A. Except as otherwise provided in this Chapter, it is unlawful for any person to
encroach or make or cause to be made any encroachment without first obtaining an
encroachment permit from the City Engineer.
B. No use of any right-of-way or any other interest or property pursuant to this chapter
shall create or vest in a Permittee any ownership or other interest in the right-of-way,
streets or other property or interest of the City. Permits issued in accordance with this
chapter may be revoked at any time deemed necessary by the City Engineer.
14.08.030 Exceptions to permit requirement.
No Encroachment permit shall be required for any of the following:
1. Any sign erected, constructed and maintained in compliance with Chapter
19.104.100; or
2. The action of any officer or employee of the City engaged in the discharge of
official duties; or
3. Installation and maintenance of landscape adjacent to residential properties
in accordance with section 14.12.080 and maintained in accordance with
14.08.220
4. Utility maintenance or operation activities that do not require excavations or
installation of new equipment. If the maintenance or operations work is on a
Collector or Arterial street and limits vehicular or pedestrian travel, Utility
shall notify the City prior to commencement of work and a traffic control plan
may be required.
14.08.040 Pavement preservation.
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Any street that has been constructed, reconstructed, resurfaced or resealed shall not
thereafter be cut or opened for a period of 3 years, except for emergency street cuts.
The City Engineer shall also grant exemptions under the following circumstances:
1. Relocation work that is mandated by a county, State or federal agency.
2. Service for buildings or parcels where no other reasonable means of
providing service exists, as determine by the City Engineer.
3. Other situations deemed by the City Engineer to be in the best interest of
the general public.
When granting exceptions to this regulation, the City Engineer may impose conditions
determined appropriate to insure the rapid and complete restoration of the street and
the surface paving.
14.08.050 Permit application process.
All persons desiring or intending to obtain an encroachment permit must apply with
the Public Works Department by submitting a completed application signed by the
applicant. The City Engineer shall prescribe and provide an application form for the
permit required by this ordinance.
14.08.060 Fees.
A. The City Council shall establish a schedule of fees for encroachments by resolution.
B. Unless waived in writing by the City Engineer, fees will be required of any public
agency which is authorized by law to establish or maintain any works or facilities in,
under or over any public street or right-of-way.
C. Independent contractors or Utilities under direct contract with the City, for work in
benefit of the City are exempt from fees under this provision when working in benefit
of the City and performing duties in the public right-of-way in accordance with the
terms of the contract.
14.08.070 Security required.
A. The City Engineer may require security in a reasonable amount based on the project
size and/or scope, as reasonably determined by the City Engineer, sufficient to
reimburse the City for costs of restoring the right-of-way. Any bond amount will be
based on an estimate provided by the Permittee and approved by the City Engineer.
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Required security may include encroachment bonds, faithful performance bonds, labor
and material bonds, cash, certificate of deposit, letter of credit or other security deemed
acceptable by the City Engineer.
B. At any time the City Engineer determines that the amount of the security is
insufficient to cover potential costs or damages which might result from the project, the
City Engineer may require the Permittee to post an additional bond or cash deposit, or
combination thereof, as a condition of continuing work on the project.
C. Security deposits shall not be required of any public agency or Utility company
which is authorized by law to establish or maintain any works or facilities in, under or
over any public street or right-of-way.
14.08.080 Permittee to indemnify City.
The Permittee shall be liable for, and indemnify and hold the City harmless from, all
harm, injuries, or damages (including attorneys fees), including but not limited to
damage to persons or property, which occur in connection with or resulting from the
ongoing use of the right-of-way. The Permittee's liability under this section shall not
apply to any harm, injuries or damages resulting from the City's negligence, willful
misconduct or criminal acts as adjudged by aL court of competent jurisdiction. Prior to
issuance of the permit, the Permittee shall furnish to the City evidence of insurance
coverage and endorsements (including self insurance, if applicable) as designated by
the City for the liability assumed by the Permittee. The City shall provide reasonable
notice to the Permittee upon receipt of any claim of loss, action or demand and
cooperate with the Permittee's defense against such claim, including providing
reasonable access to information, evidence, and witnesses necessary to defend against
such claim. The Permittee does not waive its right to pursue any or all available legal
remedies to challenge the validity or legality of any applicable federal, State or local law
by its work under this chapter.
14.08.090 Permit approval and issuance.
Within 7 days of receipt of an encroachment permit application, the City Engineer will
make reasonable effort to either, deem the application complete in compliance with all
requirements of this chapter and any other applicable law, or notify the applicant of
deficiencies. Once the application is deemed complete, the encroachment permit shall
either be denied, or approved and issued within 21 days. Permits may include any
conditions the City Engineer deems reasonably necessary to protect the public interest,
safety and welfare.
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14.08.100 Notices, term of permit.
A. Commencement of work or use. The Permittee shall begin the work or use
authorized by a permit issued pursuant to this chapter within ninety (90) calendar days
from date of issuance, unless a different time period is stated in the permit. If the work
or use is not commenced in a timely fashion, then the permit shall become void, unless
an extension of time to commence work has been granted by the City Engineer.
B. Notices. The Permittee may be required to provide notice of installation of any
facilities to property owners within 300 feet of the encroachment as directed by the City
Engineer and/or the Director of Community Development.
C. Schedule of work. The Permittee shall notify the City Engineer at least two full
business days prior to start of any work, except for work performed in connection with
an Emergency. Should the work stop for more than two full consecutive City working
days, the Permittee shall again notify the City Engineer as noted above prior to
restarting the work. The work must be diligently prosecuted to its completion and shall
be performed in such a manner as to cause minimum inconvenience and hazard to the
public to the extent reasonably possible as determined by the City Engineer.
D. Acceptance of work or use. The Permittee shall notify the City Engineer when work
or use is complete. The City Engineer shall accept the work or use as completed only
after the Permittee has fulfilled all obligations under this chapter and the provisions of
the permit, cleaned the site of all debris and left the site in a neat and workmanlike
condition. The City Engineer shall indicate acceptance by endorsing the permit in the
space provided.
14.08.110 Permit valid for described and approved work or use only.
The permit issued shall not be valid for any work or use other than that described in the
permit and as shown on the approved plans. No Material changes to the location, size,
or type of encroachment shall be allowed except upon authorization of the City
Engineer.
14.08.120 Display of permit.
A. A copy of any permit issued pursuant to this chapter shall be kept at the site of any
construction work pertaining to the encroachment and shall be shown to any
authorized representative of the City on demand.
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B. A permit issued for continuing use or maintenance of an encroachment involving the
residence or place of business of the Permittee may be kept at the residence or place of
business and shall be made available to an authorized representative of the City within
24 hours.
14.08.130 Construction requirements.
The Permittee shall comply with all construction requirements established by the City
Engineer, including but not limited to the requirements set forth in this section.
A. Standards of construction. All work performed under the permit shall conform to
applicable law and recognized standards of construction that do not conflict with
California Public Utility Commission (CPUC) Standards, including but not limited to
the current City Standards relating to street improvements and any special provisions
relating thereto, except those standards which may conflict with those specifically
required by the CPUC or State or City franchise agreements.
B. Underground Service Alert (U.S.A.). Prior to commencement of any excavation, the
Permittee shall call U.S.A. for field marking of existing underground utilities in
accordance with applicable rules.
C. Inspection and approval. All work shall be subject to monitoring, inspection, and
approval by the City Engineer.
D. Protection of traffic. The Permittee shall place and maintain adequate signs,
barricades, warning lights, and other safeguards necessary to protect the public, and
shall maintain safe crossings for pedestrian and vehicular traffic during the entire
course of the work. Warning signs, lights and safety devices shall conform to the
requirements of the current State of California Manual of Uniform Traffic Control
Devices.
E. Repairs. Each Permittee shall be responsible for restoring to its former condition as
nearly as may be possible any portion of the right-of-way which has been excavated or
otherwise disturbed or damaged by the Permittee. If the right-of-way is not restored as
provided herein, the City shall notify the Permittee of deficiencies. If the Permittee fails
to respond within 5 business days of the date of notification or and the City engineer
deems said deficiencies a public hazard, the 12ity may make the repairs, and the
Permittee shall bear the cost thereof. The Permittee is responsible for maintaining the
work area at its sole cost and expense until the City accepts the work covered by the
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permit. Each Permittee shall repair and correct any and all defects and deficiencies due
to workmanship or materials in connection with the permit.
F. As-Built Plans. When construction is complete, Permittee shall provide a set of As-
Built construction drawings at the request of the City Engineer.
14.08.140 Extending permit.
The City Engineer shall grant the Permittee a time extension to a permit subject to
compliance with the requirements of this chapter, provided there are no Material
changes to the original approved construction plans since the initial issuance of the
permit. The Permittee shall request a time extension to a permit before the permit's
expiration date.
14.08.150 Release or revision of bonds and cash deposits.
Any bond or cash deposit submitted pursuant to this chapter shall be released only
upon completion of all work and conditions set forth in the permit deemed satisfactory
by the City Engineer.
14.08.160 Ongoing use of right-of-way.
In addition to complying with all relevant requirements for obtaining a permit
contained herein, a person owning facilities in, seeking to install facilities in, or using
right-of-way shall comply with all requirements of this section except where governed
by other regulatory agencies.
A. Encroachments at no expense to City. The design, construction, installation,
operation, maintenance, relocation, and removal of the Permittee's facilities shall be at
no expense to the City and shall be subject to the reasonable approval of the City
Engineer to preserve the integrity and effective use of the public rights-of-way and to
protect the public health, safety and welfare.
B. Relocation or removal of encroachment. The Permittee shall remove or relocate any
installation owned by Permittee that is in conflict vertically and/or horizontally with
any City installation that is a proper governmental use of the right-of-way and as
subject to any franchise agreement. If the Permittee does not complete removal or
relocation within a reasonable period of not less than 90 days as required by the City
Engineer, the City shall have facilities removed at the Permittee's expense. Before
proceeding with relocation work, the Permittee shall obtain appropriate permits and
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approvals and shall restore the area vacated Ito an acceptable condition as reasonably
determined by the City Engineer.
C. Requirements for utility distribution facilities. Owners of public or private Utility
distribution facilities placed in the right-of-way shall comply with the following:
1. No interference with existing uses. Should the City permit facility installations
(not including any City-owned installations) where there are existing facilities,
the Permittee shall work around existing facilities. Should it prove impractical to
work around existing facilities, requiring the relocation of any existing facilities,
and if the owner of said existing facilities agrees to relocate them, the owner shall
promptly relocate its facilities. The reasonable cost of relocating existing facilities
shall be borne solely by the Permittee. However, if at least one of the following
applies, the owner shall promptly relocate its facilities at no cost to the Permittee:
a. Existing facilities were not properly installed;
b. Facilities installed unlawfully;
C. Federal, State, or local law requires relocation.
2. Franchises and authorizations. The Permittee shall obtain franchises, other
authorizations and/or agreements, if reasonably required by the City and
applicable law, and shall comply with the provisions of any such franchise or
other authorization, providing proof of satisfaction of any condition thereof.
3. Maintenance of facilities. Facilities owned by Permittee installed pursuant to this
chapter shall at all times be maintained in accordance with the requirements of
all applicable laws, franchises and authorizations. The Permittee shall maintain
its facilities in good repair and in a safe condition to the reasonable satisfaction of
the City Engineer, or applicable regulating agency.
4. Identification of facilities. The Permittee shall identify any facilities installed in
the right-of-way in accordance with the requirements of applicable law or by
means of an identification method as directed by the City Engineer. Such
identification shall be detectable from ground level without opening the street.
The Permittee shall provide the City a telephone contact number, staffed twenty-
four (24) hours per day, seven days per week, to enable the City to report any
concerns regarding the facilities, including, but not limited to, the removal of any
graffiti/vandalism. In the event that the City reports such concerns to the
Permittee, and where such concerns are not in conflict with applicable laws and
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regulations, the Permittee shall within seventy-two (72) hours, unless weather or
emergencies prohibit timely action, respond to such call and perform the
required repair or correct any adverse impact to the City's or third party's use or
operations caused by the Permittee's facilities in the right-of-way at no cost to the
City.
5. Compliance with applicable laws. The Permittee shall comply with all applicable
federal, State, or local laws, rules and regulations for clearances and siting
standards, including but not limited to City noise ordinances; and City Standards
relating to street improvements: Design Criteria, Standard Specifications, and
Standard Details.
6. Requirements for above-ground or surface mounted facilities. Above-ground or
surface-mounted facilities placed pursuant to this chapter shall, where
reasonably feasible, be placed in a location approved by the City Engineer and be
consistent with the following guidelines:
a. Consistent with California Public Utility Commission requirements.
b. Shall be no larger than is reasonably necessary to contain and protect
the required facilities. In the event any above-ground or surface-mounted
facility exceeds seventy-two (72) inches high, fifty-nine (59) inches wide
and twenty-seven (27) inches deep, an environmental review under
CEQA and any other applicable laws must occur prior to permit issuance;
c. Shall not obstruct pedestrians and shall comply with the Americans
with Disabilities Act and access-related regulations, including
maintaining pedestrian clearance (free of all obstacles for a clear path of
travel, unobstructed pedestrian walkway) except during erection,
construction, placement and maintenance;
d. Shall be set back a minimum of two feet from the face of the curb or
less as approved by the City Engineer;
e. Shall not intrude into the vehicle visibility obstruction area at street
corners or create vehicle driveway obstructions;
f. Shall not be placed at street intersection corners or at the end of T-
intersections reserved for traffic signal facilities except as approved by the
City Engineer;
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Page 13
g. Shall not obstruct pedestrian, technician, or vehicle view of any traffic
sign or signal;
h. Shall be placed with a minimum horizontal clearance of eight feet from
any sanitary sewer or storm drain facility, except where an existing
cabinet is already closer than eight feet to a sanitary sewer or storm drain
line, a new cabinet of the same type may be placed adjacent to the
existing cabinet with a minimum horizontal clearance of five feet from
the sanitary sewer or storm drain line;
i. Shall be set back a minimum of five feet from any City utility facility,
traffic signal facility, driveway, curb ramp, or blue zone parking space, or
a minimum of three and one-half feet from any other entity's above-
ground or surface-mounted structure not otherwise specified herein,
including but not limited to street poles, parking meters, and public art;
j. Shall be set back a minimum of eight feet from any fire escape and/or
fire exit except as approved by the City Engineer;
k. Shall not be placed on the property of, or immediately adjacent to, any
designated local, State or national register historical landmark or
structure;
1. Shall not violate any City Code or policy related to City-owned trees
or heritage trees, including but not limited to the provisions related to
alteration, removal, or trenching affecting any City-owned tree;
m. Shall be screened by landscaping where appropriate for the location.
Where landscaping is required, Permittee shall be fully responsible for all
costs associated with removal and disposal of existing plant material,
including replanting, modifications or repair of all irrigation disturbed as
a result of installing, using, operating, and maintaining the facility.
Replacement irrigation shall be in the same quantity, quality and of
comparable size to those removed.
n. Shall be painted or coated to blend in with the surrounding
environment; graffiti-proof coating that also blends shall be used if
feasible;
D. Attachments to bridges and overpasses rnay be permitted with approval by the City
Engineer and other regulating agencies.
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E. Utility main locations are subject to the approval of the City Engineer.
F. A Permittee shall furnish to the City detailed maps and record drawings depicting
all of the Permittee's facilities in specified portions of the right-of-way within the limits
of any excavation by the City—such maps and drawings to be provided free of charge
within twenty (20) calendar days of any request. The detailed maps and record
drawings shall show the approximate location, size, description, and nature of all of
Permittee's facilities. The drawings and maps should not be relied upon to determine
the exact location of any underground facilities. To ensure a safe excavation, anyone
desiring to excavate near the facilities must call U.S.A. prior to the start of excavation to
allow for field marking of existing underground utilities.
G. A Permittee shall pothole its subsurface facilities within fifteen (15) days of receipt of
a written request from the City to do so, unless the Permittee can certify within one foot
the location and depth of its facilities where potholing is requested. The City shall in no
event pay any pothole expenses.
H. A Permittee shall, at its sole expense, maintain membership in Underground Service
Alert (U.S.A.) and shall field mark, at its expense, the location of its facilities upon
notification in accordance with State law, including but not limited to Government
Code Section 4216 and following, as it now reads or may hereinafter be amended.
I. A Permittee shall inform the City in writing of any material change in contact
information. Such written notice shall be provided to the City Engineer within sixty (60)
days of the change.
14.08.170 Damage to existing facilities from encroachments.
A. The Permittee is responsible for any damage to private property and City facilities,
including but not limited to pavement, curb and gutters, sidewalk, landscaping, and
utilities, occurring as a result of or in any way related to activities associated with the
Permittee's encroachment, including installation, maintenance, repair, operation, and
removal of Permittee's facilities in the right-of-way by the Permittee, its employees or
agents. The Permittee's liability under this section shall not apply to the extent that
damage is caused by the sole or active negligence, willful misconduct or criminal acts of
City, its agents or employees.
B. In the event of any damage caused by Permittee, the Permittee shall pay the cost of
any replacements, repairs or restoration necessary to return the property, right-of-way,
facilities, or installations to the condition that existed prior to the damage.
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C. Any damage to surface and subsurface improvements, such as pavement or concrete
over any trench/excavation or adjacent thereto, as reasonably determined by the City
Engineer which results from the Permittee's acts or omissions shall be the sole
responsibility of the Permittee. The Permittee shall complete all necessary repairs
within thirty (30) days of notification by the City Engineer, or if it reasonably would
require more than thirty (30) days to perform such repairs, within a time reasonably
necessary, provided the Permittee has undertaken to initiate the repairs within the
thirty (30) day period and diligently pursues such efforts to cure to completion. If the
Permittee fails to make repairs within the applicable period, or if the City Engineer
determines the damage to be a public hazard, the City may have repairs made and bill
the cost to the Permittee.
14.08.180 Adherence to rules and regulations.
Each person shall comply with all rules and regulations contained herein even if the
work has been performed under an emergency encroachment. The City Engineer may
revoke a permit issued under this chapter upon violation of any of its provisions or the
provisions of any permit issued hereunder.
14.08.190 Transfer of Permits.
Permits issued pursuant to this ordinance are not transferrable. A Permittee's agent
may file an application for an encroachment permit on behalf of the Permittee without
causing a transfer of permit.
14.08.200 Emergency encroachments.
This ordinance does not prevent a person from performing emergency maintenance to
repair a broken or defective pipe, facility or conduit lawfully on or under a public right-
of-way or excavating by a Utility as may be necessary for the preservation of life and
property when an urgent necessity arises. However, the person performing an
emergency encroachment during normal City business hours shall notify the City
Engineer by telephone within four hours of beginning said emergency work. If the
emergency work must occur during hours the City offices are closed, that notice shall be
given to County Communications. The notice shall relay the nature and location of the
emergency, and the person making an emergency use or encroachment shall apply for a
permit the next business day. Utilities shall not be required to obtain an encroachment
permit prior to work performed in connection with an Emergency.
14.08.210 Abandonment or removal of facilities from right-of-way.
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A. If a Permittee intends to remove its facilities, the Permittee shall obtain a permit
pursuant to this chapter for all facility removal from the right-of-way prior to such
removal.
B. If a Utility intends to abandon its facilities, the Utility shall notify the City Engineer
prior to abandonment by sending written notice at least thirty (30) days prior to
abandonment. All facilities shall be removed, abandoned in place, or dedicated no later
than one hundred eighty (180) days of the City Engineers approval.
C. If the City determines a Permittee (other than a Utility) has abandoned privately
owned facilities, the City shall provide the Permittee with written notice to remove their
facilities from the right-of-way within thirty (30) days. Facility removal shall be at no
cost to the City.
D. If the Permittee (other than a Utility) takes no action within this time period, the City
may elect to accept title to such facilities free and clear, or remove the facilities and
charge the Permittee with all reasonable costs incurred in such removal. Permittee shall
make payment within thirty (30) days of the City's return of such facilities to the
Permittee or making such facilities available to the Permittee for pickup within City
limits.
E. Encroachments that have been made without a permit or by persons not otherwise
entitled to operate within public rights-of-way pursuant to federal, State or local law are
not subject to the provisions of the abandonment process described in this section.
F. The provisions of this section apply only to City determinations of abandonment and
not where the City has revoked a permit pursuant to section 14.08.020(b).
14.08.220 Obstructions deemed public nuisance.
A. The City and its residents share in the care and management of landscape within the
right-of-way located adjacent to private property. No owner or legal occupant of any
premises abutting upon any right-of-way shall permit the existence of obstructions
defined by this chapter to be a nuisance.
B. The following is to be a nonexclusive list of obstructions which under this chapter
are deemed to obstruct the view from vehicles traveling on public streets and the
passage of pedestrians on the sidewalks and of vehicles on the rights-of-way abutting
thereon and are declared to be a public nuisance and prohibited as unlawful:
Ordinance No. 13-2110
Page 17
1. A tree with limbs overhanging the right-of-way, the lowest part of which is
less than eight and one half feet above the right-of-way;
2. Landscape overhanging the street, gutter, sidewalk or obstructing any
municipal utility facility or fire hydrant;
3. Any landscape which is so situated as to obscure and impair the unobstructed
view of intersecting traffic by passing motorists or pedestrians or obscure and
impair the view of street, traffic, and other control devices and signs placed upon
the streets for the safety of the public.
C. The City Engineer, upon determining that one or more of the nuisances prohibited
herein exist or that any other similar obstruction to the passage of vehicles or
pedestrians at intersections exists on premises within the City, shall give written notice
to the property owner or legal occupant having charge or control of the premises to
remove the nuisance so designated therein, and it is unlawful for the owner or legal
occupant having charge or control of the premises to neglect or fail to remove therefrom
the obstruction within five business days from the date of the notice.
D. If the City Engineer finds that any right-of-way obstruction is an immediate peril or
menace to the public, to any person, or to pedestrian or vehicular traffic, the City
Manager may cause it to be summarily removed. Upon summary removal of the
obstruction, the City Manager shall provide written notice to the property owner of
actions taken. Any cost incurred by or fees imposed by the City in the removal,
alteration, relocation, or demolition of any sign pursuant to the provisions of this title or
any other pertinent ordinance of the City, shall be paid by the owner of property
abutting the right-of-way on which the obstruction was located.
E. In addition to any of the remedies provided for herein or by law for violations of
this Chapter, the City Attorney may maintain an action for injunction to restrain or
abatement to correct or compel the removal of such violation or violations as provided
in this Code.
14.08.230 Penalties.
A. Pursuant to the City's prosecutorial discretion, the City may enforce violations of the
provisions of this chapter as criminal, civil or administrative actions.
B. Every violation of this chapter shall be a misdemeanor; provided, however, that
where the City Attorney has determined that:such action would be in the best interest
Ordinance No. 13-2110
Page 18
of justice, the City Attorney may specify in the accusatory pleading or citation that the
violation shall be prosecuted as an infraction. Code enforcement officers, as defined by
this Code, shall have the power to issue administrative and infraction citations for
violations of this chapter.
C. Violations of this chapter may also be punishable as infractions or administrative
actions in accordance with Chapters 1.10 and 1.12.
D. In addition to all other remedies set forth in this Chapter, any activities operated,
conducted or maintained contrary to the provisions of this chapter shall be unlawful
and a public nuisance, and the City Attorney may, in the exercise of discretion, in
addition to or in lieu of prosecuting a criminal action hereunder, commence an action or
actions, proceeding or proceedings, for the abatement, removal and enjoinment thereof,
in a manner provided by law.
14.08.240 Appeals.
Any person whose permit application is denied or any permittee who is required to
abandon facilities may appeal such decision in accordance with Chapter 1.16 of this
code.
Section 2. Severability. Should any provision of this Ordinance, or its
application to any person or circumstance, be determined by a court of competent
jurisdiction to be unlawful, unenforceable or otherwise void, that determination shall
have no effect on any other provision of this Ordinance or the application of this
Ordinance to any other person or circumstance and, to that end, the provisions hereof
are severable. The City Council declares that it would have adopted this ordinance and
each section, subsection, sentence, clause, phrase or portion thereof irrespective of the
fact that any one or more sections, subsection, sentence clause, phrases or portions be
declared valid or unconstitutional.
Section 3. Effective Date. This Ordinance shall take effect and be in force
thirty (30) days from and after adoption as provided by Government Code Section
36937.
Section 4. Certification. The City Clerk shall certify to the passage and
adoption of this Ordinance and shall give notice of its adoption as required by law.
Pursuant to Government Code Section 36933, a summary of this Ordinance may be
published and posted in lieu of publication and posting of the entire text.
Section 5. Environmental Review. Because this ordinance makes purely
procedural and enforcement related changes, and improvements to readability, this
Ordinance No. 13-2110
Page 19
ordinance is exempt from CEQA review pursuant to CEQA Guidelines section
15061(c)(3).
INTRODUCED at a regular meeting of the Cupertino City Council the 16th day of July,
2013 and ENACTED at a regular meeting of the Cupertino City Council on this 20th day
of August 2013 by the following vote:
Vote Members of the City Council
AYES: Mahoney, Wong, Chang, Santoro, Sinks
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: APPR D:
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6�u ZL-Ikll �-zz-� 3 -
Grace Schmidt, City Clerk Orrin Mahoney, May , City of Cupertino
STATE OF CALIFORNIA )
COUNTY OF SANTA CLARA )
CITY OF CUPERTINO )
I, GRACE SCHMIDT, City Clerk and ex-officio Clerk of the City
Council of the City of Cupertino, California, do hereby certify the attached
to be a true and correct copy of Ordinance No. 13-2110, which was
enacted on August 20, 2013, and that it has been published or posted
pursuant to law (G.C. 40806).
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 22nd day of August, 2013.
J � A �-
GRACE SCHMIDT, City Clerk and Ex-officio Clerk
of the City Council of the City of Cupertino, California
Ordinance Certificate