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HomeMy WebLinkAboutNS-2392 Not adopted177 ORDINANCE NO. NS- 2392 AN ORDINANCE AMENDING ART OF CHAPTER 33 OF THE SANTA MUNICIPAL CODE TO ESTABLISI CUT FEE TO BE IMPOSED IN COI~ WITH PERMITS FOR EXCAVATIG PUBLIC RIGHT-OF-WAY THE CITY COUNCIL OF THE CITY OF SANTA ANA ORDAINS AS FOLLOWS: SECTION 1. FINDINGS The City Council of the City of Santa Ana (the "City") finds, determines and declares: A. The City owns and maintains over 450 miles of streets and public right of way, which are subject pursuant to state and federal law as well as grant of franchise, to being excavated with trench cuts for the purpose of laying of utilities, such as water, sewer, gas, electric, communication, or video signal service. This Ordinance is necessary to establish the City's authority to impose certain fees which will reduce the adverse effects that street excavations have upon the economic life of streets of the City. Such regulation of excavations in City streets to help reduce disruption of and interference with public use of the streets, help prevent premature degradation, and maintain the safe condition of the streets protects the public health, safety and welfare. The public health, safety and welfare of the City requires the enactment of this Ordinance as a municipal affair, and as a valid and appropriate exercise of the City's police power. B. Experience in other cities in California including Los Angeles, Sacramento and San Francisco, as well as cities in other states including the cities of: Austin, Texas; Kansas City, Missouri; Burlington, Vermont; Cincinnati, Ohio; and, Phoenix, Arizona have demonstrated that excavations in paved streets degrade and shorten the life of the surface of the streets, and this degradation increases the frequency and cost to the public of necessary resurfacing, maintenance and repair. Additionally, the Sacramento and Cincinnati studies concluded that pavement degradation occurs regardless of the quality of the workmanship in filling the excavation and restoring the pavement. C. In order to determine the applicability of the foregoing studies to the City of Santa Ana, the City retained Dr. M.Y. Shahin, who has previously participated in the studies for Los Angeles, San Francisco, and Sacramento, to prepare a report. The report for the City by Dr. Shahin dated January 1999 and on file in the office of the Director of 178 Public Works, shows that even ii p'ff'O~inent restorationz'M ~e',~ ~,nch'ttself is str :rurally adequate, excavations damage thee- strength and life~.~e~j~'~hent lo0a~ed adj~ :ent to the trench where the excavation c~ccurs. ~tent¢~J~m~ag~to tj~l ~t is magnified when a street is subjec~to~xlx, t~,~ e~cav~ ~__.._~ ted or resurfaced and before the next sch~du~.8~'.L~?fa.~ ~ss of asphalt coating is needed to reconstruct ~e, Lif-il4'ms'g~[n sub' ected to excavations in order to return it to its original strength and quality. D. Prior to the adoption of this Ordinance, the City Council reviewed all of the foregoing studies, and recognizes and relies upon the experience reflected therein in support of this Ordinance. Copies of these studies are available for public review upon request. The City Council finds that these studies are relevant to the problems addressed by the City in enacting this Ordinance, and more specifically finds that these studies provide convincing evidence of the significant adverse unavoidable effects of excavations on the City's street system. E. The fee imposed by this Ordinance to be paid to help offset the shortened life of the streets that are cut (the "Trench Cut Fee"), provides an incentive that will encourage utilities to minimize excavations in city streets. The fee will also promote better coordination among utilities making excavations in City streets and between these utilities and the City (i) to minimize the number of excavations being made wherever feasible, and (ii) to ensure that excavations are performed, to the maximum extent possible, in streets scheduled for resurfacing within the same or succeeding fiscal year as the excavation. F. When an excavation is performed where the Trench Cut Fee is applicable, the entity making and benefiting from the excavation should be required to pay the City a fee that reimburses to the City the value of unavoidably shortened economic life of that street caused by the excavation and the City's increased costs in reconstructing the street, in addition to any other applicable fees or charges. Because the effect of the diminished life caused by excavations decreases with time, the fee should be highest for excavations in newly surfaced streets, and should decrease as the age of the street surface being excavated increases. G. Requiring the payment of a fee for excavations not undertaken in coordination with the City's resurfacing program will provide an important incentive for utilities to coordinate their excavations with other utilities and with the City's street resurfacing schedule, to avoid excavations in these streets wherever feasible. H. This Ordinance does not conflict with provisions of State law, including, but not limited to, Sections 7901 and 12808 of the Public Utilities Code related to interstate telecommunication franchises because the fees hereunder are not charged for 179 the same right granted by State law, but, mitigating the degradation that the excavation 'adjacent to the trench, and the patched following an excavation. [Hr- I. Likewise, this Ordinance is consistent with the terms of existing utility franchises with the City of Santa Ana, because (i) a franchise is intended solely to authorize a utility's use of City streets, ways, alleys and places, (ii) franchise fees established for franchises were not intended to recover the costs of mitigating damage to the pavement over or adjacent to the trench; nor was this damage known to the City when fees for the City's existing franchises were established, (iii) the City does not use, nor is it required to use, franchise fee revenue to pay for street surfacing, resurfacing and/or reconstruction, (iv) franchises are subject to ordinances and regulations subsequently enacted by the City in the exercise of its police power, and (v) the fee authorized by this Ordinance is not related to the quality of workmanship of the repair of the street following its excavation, but instead relate to the shortening of the effective life of a street and the increased cost in reconstruction that is inherent in any excavation. J. This Ordinance is in conformance with Section 253(C) of the Federal Telecommunications Act of 1996 which expressly recognizes the authority of local governments to impose reasonable nondiscriminatory fees upon telecommunications providers using the public right-of-way, as well as California Government Code 50030 which specifically authorizes the imposition of a permit fee that do not exceed the reasonable costs of providing the service for which the fee is charged. SECTION 2. Section 33-58 (Bond or Insurance) and 33-59 (Permit) of the City's Code are hereby repealed. SECTION 3. Sections 33-59 through 33-59.6 are hereby added to Chapter 33 of the City's Code as follows: Section 33-59. Purpose of Trench Cut Fee. Excavations in paved streets owned and maintained by the City degrade and shorten the life of the surface of the streets, and this degradation increases the frequency and cost to the public ofne. cessary resurfacing, maintenance and repair. It is appropriate that entities responsible for excavating into the City's right of way bear this burden rather than the taxpayers of the City. In addition, establishment of a trench cut fee will create a incentive for coordination of efforts in excavating the streets to lay utilities. 180 Section 33-59.1. Establishment of No person shall excavate in the requirements of this Code, having first ity CITh~?g~nount of this Trench Cut Fee shall be set from the City Council by resolution, and shall not exceed the reasonable cost necessary to mitigate the degradation to the public streets caused by such excavation. Section 33-59.2. Variance From Payment Of Trench Cut Fee. Any person subject to the Trench Cut Fee may request that the Director waive the requirement of payment of the Trench Cut Fee due to individual circumstances that demonstrate, on a case-by-case basis, that the amount of the fee is not reasonably related to the projected impact of the proposed excavation. Section 33-59.3. Exceptions. (a) Excavations in streets scheduled for pavement structural improvements in the City's capital improvement construction schedule within one (1) year of the date of excavation shall be exempt from the Trench Cut Fee. The Public Works Agency shall endeavor to notify public utilities of streets so scheduled. (b) No Trench Cut Fee shall be charged for underground utility district projects, utility line relocations necessitated by city street work projects or by street vacations or abandonments. (c) No Trench Cut Fee shall be charged with respect to excavation in a sidewalk or a concrete street. Section 33-59.4. Utility Master Plans. Any utility owning, operating or installing in City streets, alleys, sidewalks, or any other public places facilities providing water, sewer, gas, electric, communication, video or other utility services, shall prepare and submit to the Director a utility master plan, in a format specified by the Director, that shows the location of the utility's existing facilities in City streets, alleys, sidewalks, and other public places, and shows all of the utility's planned major utility work in City streets, alleys, sidewalks and other public places for the next five years. Utilities shall submit an initial utility master plan no later than one hundred eighty (180) days after the effective date of the ordinance adopting this section. Thereafter, each utility shall submit annually, on the first regular business day of July, a revised and updated utility master plan. As used in this subsection, the term "planned major utility works" refers to any and all future excavations planned by the utility when the utility master plan or update is sidewalk, or other public place for shall not be required to show future excavations after the date that the utility master plan or update is master plans submitted pursuant to this section provided by law and used solely for purposes of coordination. Section 33-59.5 Coordination with City (a) Prior to applying for an excavation permit in the City's streets, alleys, sidewalks or other public places the City shall review on behalf of the applicant the utility master plans and the City's five year repaving plan on file with the director. The applicant shall coordinate, to the extent practicable, with the utility and street work shown on such plans to minimize damage to, and avoid undue disruption and interference with the public use of such streets, alleys, sidewalks or other public places. (b) To avoid future excavations and to reduce the number of street excavations, telecommunication companies shall be requested, when practical, to install spare conduits. 181 SECTION 4. Article XVII, entitled Trench Cut Fee Fund, is hereby added to Chapter 13 of the City's Municipal Code as follows: ARTICLE XVII TRENCH CUT FEE FUND Section 13-160. Creation of trench cut fee fund. There is hereby created and established the "Trench Cut Fee Fund." Section 13-161. Deposit of moneys. All funds received pursuant to the provisions of Section 59 of Chapter 33 of this Code shall be placed in the Trench Cut Fee Fund. Section 13-162. Expenditure of funds. Funds maintained in the Trench Cut Fee Fund shall only be expended for the rehabilitation and resurfacing of the public right of way where excavation has occurred after the effective date of this ordinance. 182 SECTION 5. Severability. The City Council of the City of Santa Ana hereby declares that should any section, paragraph, sentence or work of this ordinance or the Code, hereby adopted, be declared for any reason to be invalid, it is the intent of the Council that it would have passed all other portions of this ordinance independent of the elimination here from of any such portion as may be declared. ADOPTED this __ day of ,1999. ATTEST: Janice C. Guy Clerk of the Council Mayor CO UNCILMEMBERS: Pulido Bist Christy Franklin Lutz McGuigan Moreno APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney /~C e~f A~sKt2t~~l~ 2mey