HomeMy WebLinkAbout2003-10-07 Ordinance 4804follows:
ORDINANCE NO. 4804
ORDINANCE OF THE COUNCIL OF THE CITY OF PALO
ALTO ADDING CHAPTER 12.10 TO TITLE 12 [PUBLIC
WORKS AND UTILITIES] TO ESTABLISH FEES TO
MITIGATE DAMAGE CAUSED BY EXCAVATION IN PUBLIC
RIGHTS-OF-WAY
The Council of the City of Palo Alto does ORDAIN as
SECTION 1. The City Council of the City of Palo Alto
(the "City") finds and determines as follows:
A. The City owns and maintains over 198 miles of
streets and public rights-of-way. These streets and rights-of-way
are, pursuant to state and federal law as well as grant of
franchise, subje9t to excavation with trench cuts for the purpose
of installing, repairing and replacing subsurface facilities and
utilities, such as water, sewer, gas, electric, communication, or
video signal service. The City often cannot control when or
where such excavation occurs.
B. Experience in other cities in California including
Los Angeles, Sacramento, Santa Ana and San Francisco, as well as
cities in other states including the cities of: Austin, Texas i
Kansas City, Missouri i Burlington, Vermont i Cincinnati, Ohio;
and, Phoenix, Arizona has 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. The Department of Public Works has concluded that
the foregoing studies are applicable to and valid in light of
condi tions in the City of Palo Al to. The Department of Public
Works has determined that even if pavement restoration in the
trench itself is structurally adequate, excavations damage the
strength and life of the 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 asphalt
coating is often needed to reconstruct a street if it has been
subjected to excavations in order to return it to its original
strength and quality.
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D. The City Council has reviewed the information
contained in the foregoing studies. The City Council finds and
determines that this experience and information as a factual basis
for this Ordinance. 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. Regulating excavations in City streets will help
reduce disruption of and interference with public use of the
streets, help prevent premature degradation, and maintain the
safe condition of the streets and protects the public health,
safety and welfare. This Ordinance is necessary to establish the
City's authority to impose certain fees that will reduce the
adverse effects that street excavations have upon the economic and
useful life of streets of the City. The public health, safety and
welfare of the City require the enactment of this Ordinance as a
municipal affair, and as a valid and appropriate exercise of the
City's police power.
F. The fee imposed by this Ordinance to be paid to
help offset the shortened life of the streets that are cut (the
"Street Cut Fee"), provides an incentive that will encourage the
minimization of excavations in city streets. The fee will also
promote better coordination among those entities making
excavations in City streets and between these entities 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.
G. When an excavation is performed where the Street
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.
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H. 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.
I.
of State law,
12808 of the
This Ordinance does not conflict with provisions
including, but not limited to, Sections 7901 and
Public Utilities Code related to interstate
telecommunication franchises because the fees hereunder are not
charged for the same right granted by State law, but, 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.
J. Likewise, this Ordinance is consistent with the
terms of existing utility franchises, 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.
K. 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. Chapter 12.10 is hereby added to Title 12
[Public Works and Utilities] to read as follows:
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Section 12.10.010. Purpose of Street 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 rights-of-way bear this burden rather
than the taxpayers of the City. In addition,
establishment of a Street Cut Fee will create an
incentive for coordination of efforts in excavating
the streets to install, repair and replace subsurface
facilities and utilities.
Section 12.10.020. Establishment of Street 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 "Street Cut
Fee." The amount of this Street 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. Funds collected as Street Cut Fees shall
only be expended for the rehabilitation and
resurfacing of the public right-of-way.
Section 12.10.030. Variance From Payment Of Street
CUt Fee. Any person subject to the Street Cut Fee may
request that the Director of Public Works or designee
waive the requirement of payment of the Street 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 12.10.040. Exceptions. (a) Excavations in
streets scheduled within one (l) year of the date
specified in the Notice to Proceed for City's annual
street maintenance program capital improvement project
shall be exempt from the Street Cut Fee. The
Department of Public Works shall endeavor to notify
public utilities of streets so scheduled.
(b) No Street Cut Fee shall be charged for underground
utility district projects, utility line relocations
necessitated by City-funded street work projects or by
street vacations or abandonments.
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(c) No Street Cut Fee shall be charged with respect to
excavation in a sidewalk, driveway, curb, and gutter.
(d) No Street Cut Fee shall be charged for emergency
work as defined as causing an imminent risk to public
health and safety.
Section 12.10.050. Utility Kaster 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 Public Works 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 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 a total of fifteen (15)
days, provided that the utility shall not be required
to show future excavations planned to occur more 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 12.10.060. Coordination with City. Before
applying for a "Permi t for construction in the Public
Street" 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
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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 (i.e., 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 Director's 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 I sneed
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.
To avoid future excavations and to reduce the number
of street excavations, telecommunication companies
shall be requested, when practical, to install spare
conduits.
SECTION 3. 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 Palo Alto hereby declares that it would have adopted
this ordinance and each section, subsection, sentence, clause,
phrase or portion thereof irrespective of the fact that anyone or
more sections, subsections, sentences, clauses, phrases, or
portions be declared invalid or unconstitutional.
SECTION 4. The Council finds that this is not a project
under the California Environmental Quality Act and, therefore,
no environmental impact assessment is necessary.
II
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SECTION 5. This ordinance shall be effective on the
thirty-first day after the date of its adoption.
INTRODUCED: September 15, 2003
PASSED: October 7, 2003
AYES: BEECHAM, BURCH, FREEMAN, KISHIMOTO, KLEINBERG, LYTLE,
MORTON, MOSSAR, OJAKIAN
NOES:
ABSENT:
ABSTENTIONS:
AT~~.(a
City Clerk ~
APPROVED AS TO FORM:
In Vt:.k $::=!U,~ )/.uk,Wk-
Cit Attorney
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