HomeMy WebLinkAboutNS-2480 - Amending Article III of Chapter 33 and Adding Article XVIII to Chapter 13 of the City's Code to Establish a Trench Cut Fee...ORDINANCE NO. NS-2480
AN ORDINANCE AMENDING ARTICLE III OF CHAPTER
33 AND ADDING ARTICLE XVIII TO CHAPTER 13 OF THE
CITY'S CODE TO ESTABLISH A TRENCH CUT FEE TO BE
IMPOSED IN CONJUNCTION WITH PERMITS FOR
EXCAVATION IN THE PUBLIC RIGHT-OF-WAY
THE CITY COUNCIL OF THE CITY OF SANTA ANA ORDAINS AS FOLLOWS:
Section 1. The City Council of the City of Santa Ana (the "City") finds,
determines and declares as follows:
The City owns and maintains over 400 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.
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.
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 Public Works
Agency, shows that even if pavement restoration in the trench itself is
structurally adequate, excavations damage the strength and life of the
Ordinance No. NS-2480
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pavement located adjacent to the trench where the excavation occurs.
The potential for damage to the pavement is magnified when a street is
subject to multiple excavations after the street is surfaced or resurfaced
and before the next scheduled resurfacing. Additional thickness of asphalt
coating is needed to reconstruct a street if it has been subjected to
excavations in order to return it to its original strength and quality.
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.
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.
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.
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.
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 the same right granted by State law, but,
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instead, are charged to recover the costs of mitigating the degradation that
the excavation causes to the pavement over and adjacent to the trench,
and the increased cost to the City in reconstructing a street that has been
patched following an excavation.
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 exemise 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.
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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. Sections 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 of necessary 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 an incentive for coordination of
efforts in excavating the streets to lay utilities.
Ordinance No, NS-2480
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Section 33-59.1. Establishment of Trench Cut Fee.
No person shall excavate in the public right of way without, in addition to all other
requirements of this Code, having first paid to the City a "Trench Cut Fee." The
amount of this Trench Cut Fee shall be set from time to time 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
cimumstances 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 submitted that will affect any City street, alley,
sidewalk, or other public place for more than fifteen (15) days, provided that the
utility shall not be required to show future excavations planned to occur more
Ordinance No. NS~2480
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than five (5) years after the date that the utility master plan or update is
submitted. Any and all utility master plans submitted pursuant to this section
shall be confidential to the fullest extent provided by law and used solely for
purposes of coordination.
Section 33-59.5 Coordination with City
(a) Pdor 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. Such coordination shall include:
(i) Whenever two or more parties (Le., the City or any utility) have
proposed a major excavation in the same block during a five-year period, they
shall meet and confer with the City regarding whether it is feasible to conduct a
joint operation. If the Director determines that it is feasible to conduct a joint
operation, a single contractor shall be selected and a single application fee
charged.
(ii) Any utility aggrieved by the Director's decision to require a joint
operation may, within thirty (30) days of the Directors written notice, file an
appeal pursuant to Chapter 3 of this Code. In determining such appeal, the
hearing officer or Council shall consider the impact of the proposed excavation
on the neighborhood, the applicant's need to provide services to a property or
area, facilitating the deployment of new technology as directed pursuant to
official City policy, and the public health, safety, welfare, and convenience.
(b) To avoid future excavations and to reduce the number of street
excavations, telecommunication companies shall be requested, when practical,
to install spare conduits.
Section 4. Article XVll, entitled Trench Cut Fee Fund, is hereby added to
Chapter 13 of the City's Municipal Code as follows:
ARTICLE XVlll
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.
Ordinance No, NS-2480
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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 Article.
Section 5. If any section, subsection, sentence, clause, phrase or portion of this
ordinance is for any reason held to be invalid or unconstitutional by the decision of any
court of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this ordinance. The City Council of the City of Santa Ana hereby 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, subsections,
sentences, clauses, phrases, or portions be declared invalid or unconstitutional.
ADOPTED this 15th day of October, 2001.
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
BY:B j~aa~Ch ief/~AS~isKt!~Atto rney
AYES:
NOES:
ABSTAIN:
Councilmembers:
Councilmembers:
Councilmembers:
NOT PRESENT: Councilmembers:
Alvarez, Bist, Christy, Franklin, Pulido, Solorio (6)
McGuiqan (1)
None (0)
None
Ordinance No. NS-2480
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CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify that the
attached Ordinance No. NS-2480 to be the original ordinance adopted by the City
Council of the City of Santa Aha on October 15. 2001, and that said ordinance was
published in accordance with the Charter of the City of Santa.~.~r.~Ana.~~:~.~_~ ~/
Date:
Clerk of the Council
City of Santa Ana
Ordinance No. NS-2480
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