Chapter 9.80
STREET TRENCH CUT COST RECOVERY FEE
Sections:
9.80.030 Purpose of trench cut cost recovery fee.
9.80.040 Establishment of trench cut cost recovery fee.
9.80.050 Variance from payment of trench cut cost recovery fee.
9.80.065 Pavement life performance warranty.
9.80.070 Protest of trench cut cost recovery fee—Claims for refund—Appeals.
9.80.080 Utility master plans.
9.80.085 Prohibition on excavation in newly renovated public rights-of-way.
9.80.090 Coordination with County.
9.80.095 Repair of sunken pavement over excavation.
9.80.100 Creation of trench cut cost recovery fee fund.
9.80.120 Expenditure of funds.
9.80.010 Title.
This chapter shall be known as the “Street Trench Cut Cost Recovery Fee Ordinance.” [Ord. 5324 § 23, 2020; Ord. 4716 § 2, 2003].
9.80.020 Definitions.
For purposes of this chapter:
(A) “Applicant” shall mean any owner, or duly authorized agent of such owner, who has submitted an application for a permit to excavate.
(B) “County street” shall mean any public right-of-way which has been accepted, or is hereafter accepted, by the Board of Supervisors into the County road system pursuant to Section 941 of the California Streets and Highways Code.
(C) “Department” shall mean the Department of Public Works.
(D) “Director” shall mean the Director of the Department of Public Works or their designee.
(E) “Excavation” shall mean any opening in the surface or subsurface of the public right-of-way.
(F) “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.
(G) “Owner” shall mean any person, including any agency, department, or subdivision of the County, who owns any facility or facilities that are or are proposed to be installed or maintained in the public right-of-way.
(H) “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.
(I) “Person” shall mean any natural person, corporation, partnership, or any governmental agency, including any agency, department, or subdivision of the County, the State of California, or the United States of America.
(J) “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 County, as they now exist or hereafter will exist and which are or will be under the permitting jurisdiction of the Department of Public Works.
(K) “Seal coat” means a nonstructural road surface treatment designed to increase pavement life, such as a chip seal or a slurry seal.
(L) “Square foot trench repair reimbursement fee” is a fee, the amount of which shall be set forth in the public works service and capital improvement fees schedule, as amended, determined based on the average charge per square foot of the surface area of the excavation cap paid by the County to private contractors for roadway pavement repairs in the most recent year.
(M) “Structural improvements” means major road surface improvements such as road reconstruction or overlays.
(N) “Trench influence area” shall mean an area three and one-half feet adjacent to the edge of the trench where the excavation occurs. [Ord. 5324 § 23, 2020; Ord. 4716 § 2, 2003].
9.80.030 Purpose of trench cut cost recovery fee.
Excavations in paved streets owned and maintained by the County 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 County’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 County. In addition, establishment of a trench cut cost recovery 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 County right-of-way of the obligation to fill, repair and properly maintain the location of the excavation. [Ord. 4716 § 2, 2003].
9.80.040 Establishment of trench cut cost recovery 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 County a “trench cut cost recovery fee.” The amount of this trench cut cost recovery fee shall be determined by reference to the tables attached as Exhibit A to the ordinance codified in this chapter, which tables 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 excavation. [Ord. 4716 § 2, 2003].
9.80.050 Variance from payment of trench cut cost recovery fee.
Any person subject to the trench cut cost recovery fee may request that the Director waive the requirement of payment of the trench cut cost recovery 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. [Ord. 4716 § 2, 2003].
9.80.060 Exceptions.
(A) Excavations in County streets scheduled for pavement structural improvements within two years of the date of excavation shall be exempt from the trench cut cost recovery fee.
(B) No trench cut cost recovery fee shall be charged for underground utility district projects initiated by the County, or utility line relocations necessitated by County street work projects or by street vacations or abandonments.
(C) No trench cut cost recovery fee shall be charged for excavations performed by or for the Department.
(D) No trench cut cost recovery fee shall be charged with respect to excavation in a sidewalk or a concrete street.
(E) No trench cut cost recovery fee shall be charged where the proposed work will include resurfacing of all or a significant portion of the public right-of-way where the excavation is made and the Director approves the resurfacing. A “significant portion of the public right-of-way” means a surface area of the public right-of-way with minimum length and width dimensions as follows: length: 25 feet from the nearest edge of the excavation area; and width: the full width of each traffic lane if any portion of the lane is within the trench influence area.
(F) No trench cut cost recovery fee shall be charged for any person possessing a valid performance warranty agreement with the County as set forth in SCCC 9.80.065, except as provided in SCCC 9.80.085.
(G) No trench cut cost recovery fee shall be charged for repair work required by the Director pursuant to SCCC 9.80.095(A). [Ord. 5324 § 23, 2020; Ord. 4716 § 2, 2003].
9.80.065 Pavement life performance warranty.
(A) In lieu of paying a trench cut cost recovery fee pursuant to SCCC 9.80.040, a person who is a public agency, who is a publicly regulated utility company, or who has a valid franchise agreement with the County or is statutorily exempt from franchise requirements, shall provide a written pavement life performance warranty in a form acceptable to the County. The warranty shall provide that in the event that subsurface material or pavement over or within the trench influence area becomes depressed, broken, or otherwise fails at any time after the excavation (or joint operation excavation) has been completed, that person shall repair or restore such condition pursuant to the procedure set forth in SCCC 9.80.095.
(B) In the event that a person who is a public agency, a publicly regulated utility company, or who has a valid franchise agreement with the County or who is statutorily exempt from franchise requirements fails or refuses to provide a written pavement life performance warranty, such person shall pay the trench cut cost recovery fee set forth in SCCC 9.80.040.
(C) Should a person who has executed a written pavement life performance warranty fail to repair, replace or restore a public right-of-way in accordance with the terms of the warranty, the County may cause the repair to be made and charge the amount of the repair costs to the person. After three failures to make repair on any warranted trenches Countywide within any 24-month period, the Director may, at the Director’s discretion, terminate the pavement life performance warranty agreement with the person and thereafter require the person to pay the trench cut cost recovery fee pursuant to SCCC 9.80.040.
(D) Written notice of the decision of the Director to terminate a pavement life performance warranty agreement shall be mailed to the person who entered the agreement, and the termination shall take effect upon mailing. The person may, within 60 days after mailing of the written notice of termination, request the Director to reconsider the decision to terminate the agreement and to renew the agreement by submitting a written statement, executed by the person or by a duly authorized agent for the person, stating the reasons that the agreement should not be terminated, and reaffirming the person’s agreement to be bound by the terms of the pavement life performance warranty agreement as amended if the agreement is renewed. The Director shall consider the materials which are timely submitted by the person, and such other information and material as the Director may in their discretion permit, and shall respond in writing within 30 calendar days after receipt of the timely request by: (1) granting the request to renew the agreement; (2) denying the request to renew the agreement; or (3) requesting such additional information or documentation as the Director finds relevant to evaluation of the request.
(E) Pavement life warranty agreements are not transferable or assignable. [Ord. 5324 § 23, 2020; Ord. 4716 § 2, 2003].
9.80.070 Protest of trench cut cost recovery fee—Claims for refund—Appeals.
(A) Any person required to pay a trench cut cost recovery fee pursuant to SCCC 9.80.040 and not granted a variance pursuant to SCCC 9.80.050 who desires to protest or otherwise challenge the imposition or amount of the fee shall tender to the County payment in full of the fee when due, accompanied by a written notice containing the following information:
(1) A statement that the required payment is tendered under protest; and
(2) 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.
(B) Any person required to pay a trench cut cost recovery fee pursuant to SCCC 9.80.040, and who has complied with the fee protest provisions of subsection (A) of this section, 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 limits set forth in Government Code Section 911.2. In evaluating the claim, the Board 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 degradation 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 trench cut cost recovery fee is inconsistent with a contract to which the claimant is a party; or (4) the imposition or amount of the trench cut cost recovery fee required of the claimant is unlawful for another reason. If the Board finds that future imposition of the trench cut cost recovery 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 trench cut cost recovery fee, unless the Board later finds on the basis of changed circumstances that the exemption should be revoked.
(C) The validity or amount of a trench cut cost recovery 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 subsection (B) of this section. [Ord. 5324 § 23, 2020; Ord. 4716 § 2, 2003].
9.80.080 Utility master plans.
(A) Any utility owning, operating or installing in a public right-of-way 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 public rights-of-way, and shows all of the utility’s planned major utility work in public rights-of-way for the next year. Utilities shall submit an initial utility master plan no later than 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 August, a revised and updated utility master plan. A utility may extend its deadline to submit its utility master plan by a period not to exceed 15 days by submitting written notice to the Director of the delay and identifying the reasons for the delay. As used in this subsection, the term “planned major utility work” refers to any and all future excavations planned by the utility when the utility master plan or update is submitted that will affect any public right-of-way for more than 15 days; provided, that the utility shall not be required to show future excavations planned to occur more than a year after the date that the utility master plan or update is submitted.
(B) The Director shall make all utility master plans submitted in accordance with subsection (A) of this section available for public inspection.
(C) Prior to applying for an excavation permit, any person planning to excavate in the public rights-of-way shall review the utility master plans and the County’s repaving plan on file with the Director and 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 use of public rights-of-way. [Ord. 5324 § 23, 2020; Ord. 4716 § 2, 2003].
9.80.085 Prohibition on excavation in newly renovated public rights-of-way.
(A) Excavation in newly renovated public rights-of-way is prohibited for three years after filing of a notice of completion or acceptance of a new street or structural overlay of an entire street except as follows:
(1) Emergency which endangers life or property;
(2) Repair or modification to prevent interruption of essential utility services;
(3) Relocation work that is mandated by County, State or Federal legislation;
(4) Service for buildings or parcels where no other reasonable means of providing service exists, as determined by the Director;
(5) In a public right-of-way that the County has scheduled for overlay or reconstruction within two years after the date of excavation due to failure of the original pavement;
(6) For potholing to verify utility depth or location;
(7) At the discretion of the Director, trenchless excavations greater than three feet in depth of cover over the utility facility not requiring a significant surface incision greater than industry bore pit standards;
(8) Restoration work required pursuant to SCCC 9.80.095;
(9) Excavations which are essential components of a regional project which will provide a substantial public benefit, such as extensions of water lines to enable delivery of new supplemental water supplies; or
(10) Other situations deemed by the Director to be in the best interest of the general public.
(B) Where a permit is issued to excavate during the three-year period after filing of a notice of completion or acceptance of a new street or structural overlay of an entire street, payment of the trench cut cost recovery fee will be required regardless of whether the person has executed a pavement life performance warranty unless: (1) an emergency need to excavate arises from a natural disaster such as an earthquake; (2) the excavation is necessary to accomplish relocation work that is mandated by County, State or Federal legislation; or (3) a utility or public agency provided timely notice of intention to excavate as provided in SCCC 9.80.090(E).
(C) The prohibition on excavations to a newly renovated public right-of-way shall not apply if: (1) the only renovation undertaken to the right-of-way is a seal coat; or (2) the County pavement management plan does not identify the renovation at least three months prior to initiation of the renovation work. [Ord. 5324 § 23, 2020; Ord. 4716 § 2, 2003].
9.80.090 Coordination with County.
(A) Prior to applying for an excavation permit in the public rights-of-way, the County shall review, on behalf of the applicant, the County’s anticipated repaving plans and the utility master plans 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 rights-of-way. Such coordination shall include:
(1) Whenever two or more parties (i.e., the County or any applicant) have proposed a major excavation in the same block, they shall meet and confer with the County 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 trench cut cost recovery fee shall be charged, except that no fee shall be charged if any of the persons conducting a joint operation excavation possesses a valid performance warranty agreement with the County as set forth in SCCC 9.80.065.
(B) To avoid future excavations and to reduce the number of street excavations, telecommunication companies shall be requested, when practical, to install spare conduits.
(C) In order to encourage coordination of excavation and pavement scheduling and planning between the County and excavators, the County shall update at least annually its anticipated repaving plans. The anticipated repaving plans shall also identify the public rights-of-way which are then subject to the excavation prohibition provisions of SCCC 9.80.085, and the prohibition expiration date for each such right-of-way. A copy of the anticipated repaving plans shall be available for review at the Department of Public Works by any interested person.
(D) The Director shall conduct a working group meeting at least once each year at which utilities and public agencies and other interested parties may meet to coordinate excavation and repaving schedules. The Director shall maintain a list of those requesting notice of the working group meeting, and, at least 30 days prior to the meeting date, shall mail 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 Director announces at the end of the first meeting.
(E) Each year, the Director shall notify the utilities and public agencies with encroachments in the roads selected for overlay (the “annual overlay list”). Any utility or public agency may mail written notice to the Director of their intention to excavate in a public right-of-way that has been identified in the annual overlay list by identifying the location and dimensions of the planned excavation and the estimated commencement and completion dates of the work. The date of completion of the planned excavation shall be no later than three years after the date of notice of the annual overlay list. The notice of intention to excavate shall be mailed not more than 60 days after mailing of the annual overlay list. After receipt of a timely notice, the County may delay any anticipated repaving of the affected public right-of-way to a date after the planned excavation. If the County proceeds with repaving prior to the planned excavation, no trench cut cost recovery fee shall be charged to the utility or public agency for the planned excavation that is substantially consistent with excavation described in the notice of intention to excavate. Nothing in this section affects the obligations of utilities or public agencies under a written pavement life performance warranty, nor does this section permit excavations otherwise prohibited by this section. [Ord. 5324 § 23, 2020; Ord. 4716 § 2, 2003].
9.80.095 Repair of sunken pavement over excavation.
(A) 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 trench cut cost recovery fee shall not be charged for work performed under this section.
(B) 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 Director, pay the County an amount calculated by multiplying the number of square feet of pavement restored by the square foot trench repair reimbursement 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 County. [Ord. 5324 § 23, 2020; Ord. 4716 § 2, 2003].
9.80.100 Creation of trench cut cost recovery fee fund.
There is created and established the “trench cut cost recovery fee fund.” The fund is a restricted fund, and all funds deposited into the trench cut cost recovery fee fund shall be used solely for the purposes identified in SCCC 9.80.120. [Ord. 4716 § 2, 2003].
9.80.110 Deposit of moneys.
All funds received pursuant to the provisions of SCCC 9.80.040 shall be placed in the trench cut cost recovery fee fund. [Ord. 4716 § 2, 2003].
9.80.120 Expenditure of funds.
Funds maintained in the trench cut cost recovery fee fund shall only be expended for the maintenance, rehabilitation, resurfacing, administration and protection 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 Board of Supervisors pursuant to SCCC 9.80.070. [Ord. 5324 § 23, 2020; Ord. 4716 § 2, 2003].