ORDINANCE NO.
AN ORDINANCE OF THE CITY OF ANAHEIM ADDING
CHAPTER 12.30 TO TITLE 12 OF THE ANAHEIM MUNICIPAL
CODE ESTABLISHING PAVEMENT TRENCH CUT FEE AND
BASED UPON THE FINDING AND DETERMINATION THAT
SAID ORDINANCE IS NOT SUBJECT TO THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT (CEQA) PURSUANT TO
SECTIONS 15060(C)(2) AND 15060(C)(3) OF THE STATE
CEQA GUIDELINES.
WHEREAS, pursuant to the City’s police power, as granted broadly under Article XI, Section 7 of the California Constitution, the City Council of the City of Anaheim ("City Council") has the authority to enact and enforce ordinances and regulations for the public peace, morals and welfare of the City of Anaheim (the "City") and its residents; and
WHEREAS, pursuant to the California Environmental Quality Act (Public Resources Code Section 21000 et seq.; herein referred to as “CEQA”) and the State of California Guidelines for Implementation of the California Environmental Quality Act (commencing with Section 15000 of Title 14 of the California Code of Regulations; herein referred to as the "State CEQA Guidelines"), the City is the "lead agency" for the preparation and consideration of environmental documents for this ordinance; and
WHEREAS, the City Council finds and determines that this ordinance is not subject to CEQA pursuant to Sections 15060(c)(2) and 15060(c)(3) of the State CEQA Guidelines because it will not result in a direct or reasonably foreseeable indirect physical change in the environment and is not a project as defined in Section 15378 of the CEQA Guidelines; and
WHEREAS, the City Council determines that this ordinance is in accord with the public purposes and provisions of applicable State and local laws and requirements.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ANAHEIM DOES ORDAIN AS FOLLOWS:
SECTION 1.
That new Chapter 12.30 and the same is hereby added to Title 12 of the Anaheim Municipal Code to read as follows:
“CHAPTER 12.30 PAVEMENT TRENCH CUT FEE
12.30.010 Definitions
12.30.020 Purpose of Pavement Trench Cut Fee
12.30.030 Establishment of Pavement Trench Cut Fee
12.30.040 Application for Permit
12.30.050 Variance from Payment of Pavement Trench Cut Fee
12.30.060 Exceptions
12.30.070 Protest of Pavement Trench Cut Fee; Claims for Refund; Appeals
12.30.080 Prohibition on Excavation in Newly Paved Streets
12.30.090 Coordination with City
12.30.100 Repair of Sunken Pavement over Excavation
12.30.110 Creation of Pavement Trench Cut Fee Fund; Deposit of Moneys; Expenditure of Funds
12.30.010 Definitions
.010 “Applicant” shall mean any owner, or duly authorized agent of such owner, who has submitted an application for a permit to excavate a City street.
.020 “City” shall mean City of Anaheim.
.030 “City Engineer” shall mean the person employed by the City with the title of City Engineer who is licensed to practice engineering in the State of California.
.040 “City Street” shall mean any public right-of-way, which has been accepted, or is hereafter accepted, by the City Council into the City road system.
.050 “Department” shall mean the Department of Public Works.
.060 “Director” shall mean the Director of the Department of Public Works or their designee.
.070 “Excavation” shall mean any opening in the surface or subsurface of the public right -of- way including trenches and/or bore pits.
.080 “Facility” or “facilities” shall mean any and all cables, cabinets, ducts, conduits, converters, equipment, drains, handholds, manholes, pipes, pipelines, splice boxes, surface location markers, tunnels, utilities, vaults, and other appurtenances or tangible things owned, leased, operated, or licensed by an owner or person, that are located or are proposed to be located in the public right of-way.
.090 “Franchise Agreement” shall mean a negotiated contract between t he City and a utility or service provider that grants the right to serve customers with the City’s jurisdiction.
.100 “Owner” shall mean any person, including any agency, department, or sub division of the City, who owns any facility or facilities that are or are proposed to be installed or maintained in the public right-of-way.
.110 “Pavement Condition Index (PCI)” is a numerical rating between 0 and 100, which is used to indicate the general condition of a pavement section, where 100 means newly paved.
.120 “Permit” or “permit to excavate” shall mean a permit to perform an excavation as it has been approved or may be amended or renewed by the Department.
.130 “Person” shall mean any natural person, corporation, partnership, or any governmental agency, including any agency, department, or subdivision of the City, the County of Orange, the State of California, or the United States of America.
.140 “Pothole” shall mean a vacuum or excav ated hole used to locate known utilities below surface level by excavating holes.
.150 “Public right-of-way” shall mean the area across, along, beneath, in, on, over, under, upon, and within the dedicated public alleys, boulevards, courts, lanes, places, roads, sidewalks, streets, and ways within the City, as they now exist or hereafter will exist and which are or will be under the permitting jurisdiction of the Department of Public Works.
.160 “Rehabilitation improvements” means street pavement improveme nts such as overlays greater than 2 inches.
.170 “Resurfacing improvements” means road surface improvements such as thin overlays 2 inches or less.
.180 “Seal coat” means a nonstructural road surface treatment designed to increase pavement life, such as a chip seal or a slurry seal.
.190 “Structural improvements” means major street pavement improvements such as full depth reconstruction or reclamation.
.200 "Trench cut" shall mean the action of or the result of opening, scaring, trenching, excavating, repairing, installing, adding to, removing or otherwise altering any portion of any public roadway, street, alley or thoroughfare for any purpose whatsoever.
.210 Trench “failure" shall mean any condition that causes surface irregularities, depressions, cracking, severe spalling or raveling of the patch area, surface buckling, settlement, upheaval, frac- outs and other failures resulting from any excavation methods.
.220 “Trench influence area” shall mean an area two feet adjacent to the edge of the trenc h where the excavation occurs.
12.30.020 Purpose of Pavement 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. These excavations cause degradation of the streets even where the excavations are refilled and repaired in conformity with applicable standards and requirements. It is appropriate that entities responsible for excavating into the City’s right-of-way bear the burden of the resulting cost of this degradation and shortened life of the surface rather than the taxpayers of the City. In addition, establishment of a pavement trench cut fee will create an incentive for utilities to coordinate excavations in the streets. This chapter shall not be construed to relieve those excavating into the City right -of-way of the obligation to fill, repair and properly maintain the location of the excavation.
12.30.030 Establishment of Pavement Trench Cut Fee
No person shall excavate in a public right-of-way without, in addition to all other requirements of this code, having first paid to the City a pavement trench cut fee. The City Council shall, by Council resolution, set forth the specific amount of the fee. The amount of this pavement trench cut fee may be modified 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 exc avation. The Department shall perform bi-annual condition surveys of all City streets and determine the PCI for each street. A PCI rating shall be assigned to discrete segments of a street. The PCI report shall be published on the bi-annual basis and made available for public review. PCI rating may be subject to field inspection by the Department for final determination between publishing and/or discrepancies. The pavement trench cut fee is in addition to and not intended to eliminate or replace the pavement restoration requirements in the Public Works Trench Replacement Standard Plan No. 132.
12.30.040 Application for permit.
As part of the Right of Way Construction permit application, the Applicant shall provide the City with the utility cut location(s), e xcavation area calculations and number of potholes and an estimated fee based on the pavement trench cut fee schedule. If the size and/or location of the utility cut is altered from the application information, the Applicant will, within five (5) working days, provide to the City accurate information to update the application and pay any associated fees.
12.30.050 Variance from Payment of Pavement Trench Cut Fee.
Any person subject to the pavement trench cut fee may request that the Director waive the requirement of payment of the pavement 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.
12.30.060 Exceptions
.010 No pavement trench cut fee shall be charged for excavations in City streets scheduled for pavement Structural Improvements within six months of the date of excavation. Excavation shall be approved and completed prior to commencement of a City project and shall not delay commencement of the City project. Applicant shall verify City project schedules, which may be subject to change without notice.
.020 No pavement trench cut fee shall be charged for underground utility pr ojects initiated by the Department, or utility line relocations necessitated by Department’s capital projects or by street vacations or abandonments.
.030 No trench cut cost recovery fee shall be charged for excavations performed by the City as approved by the Director.
.040 No pavement trench cut fee shall be charged with respect to excavations in or for a non - street concrete improvement.
.050 No pavement trench cut fee shall be charged for trenchless excavations greater than 3 feet in depth of cover over the utility facility.
.060 No pavement trench cut fee shall be charged for any person possessing a valid Franchise Agreement with the City.
12.30.070 Protest of Pavement Trench Cut Fee; Claims for Refund; Appeals
.010 Any person required to pay a pavement trench cut fee pursuant to Section 12.30.030 and not granted a variance pursuant to Section 12.30.050, who desires to protest or otherwise challenge the imposition or amount of the fee shall tender to the City payment in full of the fee when due, accompanied by a written notice containing the following information:
a. A statement that the required payment is tendered under protest; and
b. A description of the factual and legal basis for the protest. If the person contends that the fee is inconsistent with the provisions of a contract, the written notice shall include a complete, executed copy of the contract along with a description of the claimed inconsistency.
.020 Any person required to pay a pavement trench c ut fee pursuant to Section 12.30.030 and who has complied with the fee protest provisions of Section 12.30.070.010, may submit a claim for refund of the fee in the manner set forth in California Government Code Section 910 et seq. and within the time limit s set forth in Government Code Section 911.2. In evaluating the claim, the City shall consider whether the claimant has established that: (1) the claimant’s excavation will not degrade and shorten the life of the surface of the street(s); (2) the degradati on of the street(s) will not increase the frequency and cost to the public of necessary resurfacing, maintenance and repair of the street(s); (3) the imposition or amount of the pavement trench cut fee is inconsistent with a contract to which the claimant is a party; or (4) the imposition or amount of the pavement trench cut fee required of the claimant is unlawful for another reason. If the City finds that future imposition of the pavement trench cut fee against the claimant would also be inconsistent with a contract to which the claimant is a party or would be unlawful for another reason, the claimant shall thereafter be exempt from the pavement trench cut fee, unless the City later finds on the basis of changed circumstances that the exemption should be revoked.
.030 The validity or amount of a pavement trench cut fee shall not be contested in any action or proceeding unless the action or proceeding is commenced within 90 days after a claim is filed and denied pursuant to Section 12.30.070.020.
12.30.080 Prohibition on Excavation in Newly Paved Streets
.010 Excavation in newly paved streets with resurfacing improvements, rehabilitation improvements and structural improvements is prohibited for three years and prohibited for one year for seal coated streets after filing of a notice of completion or acceptance, except as follows:
.010 Emergency which endangers life or property;
.020 Repair, modifications or relocation work that is mandated by City, State or Federal legislation;
.030 Service for buildings or parcels where no other reasonable means of providing service exists, as determined by the City Engineer;
.040 In a public right -of-way that the City has scheduled for resurfacing improvements, rehabilitation improvements or structural improvem ents within six months after the date of excavation due to failure of the original pavement;
.050 For potholing to verify utility depth or location; .060 At the discretion of the City Engineer, trenchless excavations greater than three feet in depth of cover over the utility facility not requiring a bore pit or pothole in the asphalt pavement or;
.070 Other situations deemed by the City Engineer to be in the best interest of the general public.
.020 Where a Permit is issued to excavate a newly paved street and substantial pavement restoration beyond City Standard Plan 132 is required, payment of the pavement trench cut fee will be required.
.030 Payment of an in-lieu fee may be accepted for pavement restoration as determined by the City Engineer. The in-lieu fee amount will be based upon a cost estimate prepared by the Applicant and approved by the City. In-lieu fees shall be paid prior to permit issuance.
12.30.090 Coordination with City
.010 Prior to applying for an excavation Permit in the public rights-of-way, the Applicant shall review the Department’s anticipated projects and the utility master plans on file. 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 rights -of-way.
Such coordination shall include:
.010 . Whenever two or more parties (i.e., the City or any Applicant) have proposed a major excavation in the same block, they shall meet and confer with the City regarding whether it is feasible to conduct a joint operation excavation. If the parties select a single contractor to do the joint work , then the Director may direct that only a single pavement trench cut fee shall be charged.
.020 To avoid future excavations and to reduce the number of street excavations, telecommunication companies shall be requested, when practical, to install spare conduits.
.030 In order to encourage coordination of excavation and pavement scheduling and planning between the City and excavators, the City shall update at least annually its anticipated pr ojects.
The anticipated projects shall also identify the public rights-of-way, which are then subject to the excavation prohibition provisions of this chapter, and the prohibition expiration date for each such right-of-way. A copy of the anticipated projects shall be available for review on the City’s website by any interested person.
.040 The Department shall conduct a working group meeting a t least once each year at which utilities and public agencies and other interested parties may meet to coordinate excavation and paving schedules. The Department shall maintain a list of those requesting notice of the working group meeting, and, at least 7 days prior to the meeting date, shall mail or email notice of the time and location of the meeting to each person who has requested notice. If the initial working group meeting is not completed on the designated meeting date, the meeting may continue on a subsequent date as the Department announces at the end of the first meeting.
.050 An Applicant may submit a written request to the City Engineer for a waiver or reduction of the pavement restoration requirements in City Standard Plan 132 if the City has a scheduled project for pavement resurfacing improvements, rehabilitation improvements or structural improvements within 6 months of the date of excavation. Excavation shall be approved and completed prior to commencement of the City project and shall not delay the start of construction of the City project
12.30.100 Repair of Sunken Pavement over Excavation
.010 If the subsurface materials or pavement over or within the trench influence area become depressed or broken at any time, the person responsible shall, within 14 days of mailing of written notice from the Director, immediately inspect the depressed or broken area to ascertain the cause of the failure. The person shall make repairs to the installation or backfill and have the pavement restored in the manner and within the time period specified by the Director, but not to exceed 30 days. In the event the Director determines the pavement condition creates a road hazard, the Director may require the repair to be completed within 48 hours. A pavement trench cut fee shall not be charged for work performed under this section. The person shall remain responsible for any future repairs of that portion of pavement over the excavation for a period of 1 year after completion.
.020 If the pavement is not restored as specified by the Director, unless delayed by conditions beyond the person’s control, the Director may cause the work to be done after giving the person 24 hours’ final notice. The person shall thereafter, upon written demand by the Directo r, pay the City an amount calculated by multiplying the number of square feet of pavement restored by the pavement trench cut fee set forth in the most current public works service and capital improvement fees schedule. The person shall remain responsible for any future repairs of that portion of pavement over the excavation that was repaired by the City for a period of 1 year after completion.
12.30.110 Creation of Pavement Trench Cut Fee Fund; Deposit of Moneys; Expenditure of Funds
There is created and established the “pavement trench cut fee fund.” The fund is a restricted fund, and all funds deposited into the pavement trench cut fee fund shall be used solely for the purposes identified herein. All funds received pursuant to the provisions Section 12.30.030 shall be placed in the pavement trench cut fee fund. Funds maintained in the pavement trench cut fee fund shall only be expended for the maintenance, rehabilitation, resurfacing, administration and pr otection of the public rights -of-way that have been excavated after the effective date of the ordinance codified in this chapter, and for refunds of fees approved by the Director.” SECTION 2. SEVERABILITY.
The City Council of the City of Anaheim hereby d eclares that should any section, paragraph, sentence, phrase, term or word of this ordinance be declared for any reason to be invalid, it is the intent of the City Council that it would have adopted all other portions of this ordinance independent of the elimination herefrom of any such portion as may be declared invalid.
If any section, subdivision, paragraph, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each section, subdivision, paragraph, sentence, clause and phrase thereof, irrespective of the fact that any one (or more) section, subdivision, paragraph, sentence, clause or phrase had been declared invalid or unconstitutional.
SECTION 3. CERTIFICATION
The City Clerk shall certify to the passage of this ordinance and shall cause the same to be printed once within fifteen (15) days after its adoption in the Anaheim Bulletin, a newspaper of general circulation, published and circulated in the City of Anaheim.
SECTION 4. EFFECTIVE DATE
This ordinance shall take effect and be in full force thirty (30) days from and after its final passage.
THE FOREGOING ORDINANCE was introduced at a regular meeting of the City Council of the City of Anaheim held on the ____ day of ______________, 2022, and thereafter passed and adopted at a regular meeting of said City Council held on the ____ day of ______________, 2022, by the following roll call vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
CITY OF ANAHEIM
By: __________________________________________
MAYOR PRO TEM
OF THE CITY OF ANAHEIM
ATTEST:
______________________________________
CITY CLERK OF THE CITY OF ANAHEIM
146505/BMM