Not an official copy.

City of Sacramento, CA
Ordinance No.97-537

AN ORDINANCE AMENDING CHAPTER 38.03 OF THE SACRAMENTO CITY CODE, RELATING TO EXCAVATION REQUIREMENTS AND PAYMENT OF TRENCH CUT COST RECOVERY FEES

BE IT ENACTED BY THE COUNCIL OF THE CITY OF SACRAMENTO:

SECTION 1

The City Council hereby finds and declares as follows:

1. Excavations in City streets can significantly disrupt and interfere with public use of the streets, and obstruction of the streets during excavations can result in a loss of parking and in a loss of business to merchants and others whose places of business are located nearby. This potential for disruption and interference with public use of the streets, and the attendant loss of parking and business, is magnified when a street is subject to multiple excavations within a relatively short period of time.

2. It is desirable to adopt regulations that will help the City gain greater control over excavations in City streets, will help reduce excavations’ disruption of and interference with the public use of City streets, will help reduce the attendant loss of parking and business, and will help provide for the health, safety and well-being of the City’s populace as it uses City streets.

3. Studies performed on streets in the cities of Burlington, Cincinnati, Los Angeles, Oxnard, Phoenix and San Francisco, and on file in the office of the Director of Public Works, have concluded 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. The studies performed on streets in the cities of Los Angeles and San Francisco concluded that pavement degradation occurs no matter how well the excavation is restored.

4. In order to determine the extent to which the pavement degradation found by studies in other cities occurs in the City of Sacramento, the City retained CHEC Engineering Consultants, Inc. ("CHEC") to determine the effect of excavations on the surface of streets in the City of Sacramento. The study performed by CHEC, dated October 16, 1996, and on file in the office of the Director of Public Works, 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.

5. Hundreds of millions of dollars in public funds have been invested to build, maintain and repair the streets within the City’s geographical boundaries, and the City holds these streets as an asset in trust for its citizens. It is desirable to adopt regulations that will help protect the structural integrity of City streets and thereby safeguard the value of the public investment in City streets for the benefit of all City residents, by providing utilities incentives to reduce the number of excavations performed in City streets after the street is surfaced or resurfaced and before the next scheduled resurfacing. Such incentives should encourage utilities to install, maintain and repair their underground facilities without making excavations in City streets wherever feasible, and should 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.

6. When an excavation is performed in a paved street that is not scheduled for resurfacing within the same or succeeding fiscal year as the excavation, the entity making and benefiting from the excavation should be required to pay the City a fee that recovers the costs of mitigating the damage caused to the pavement adjacent to the trench, in addition to any other applicable fees or charges. Because excavations cause the greatest damage to newly surfaced streets, and to provide an incentive to avoid excavations in newly surfaced streets wherever feasible, the fee should be highest for excavations in newly surfaced streets, and should decrease as the age of the street surface being excavated increases.

7. Requiring the payment of a fee for excavations performed in streets that are not scheduled for resurfacing within the same or succeeding fiscal year as the excavation 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. Because the City recognizes that even utilities performing the best possible coordination will find it necessary to make excavations in streets that are not scheduled for resurfacing within the same or succeeding fiscal year as the excavation, a portion of the fees paid for such excavations should be refunded to utilities that demonstrate high levels of coordination, to provide a further incentive for utilities to assist in reducing excavations and pavement damage through coordination.

8. Entities making and benefiting from an excavation in a City street also should comply with standards and requirements for compaction, backfill and pavement restoration and resurfacing that ensure the best possible restoration of the paved surface over and adjacent to the trench.

9. Provisions of State law, including but not limited to Sections 7901 and 12808 of the Public Utilities Code, grant to some utilities the right to install underground facilities in City streets, while utilities that are not granted a statutory right to install underground facilities in City streets generally must obtain a franchise and pay an annual franchise fee in order to do so. Utilities granted the right to install underground facilities in City streets by State law have claimed that Federal and State law prohibits cities from charging them a trench cut cost recovery fee. Utilities that provide compensation to cities through the payment of annual franchise fees have also claimed that they cannot legally be required to pay additional trench cut cost recovery fees, because they claim that all costs associated with their use of City streets are already included in their annual franchise fee.

10. The City disagrees with these claims. Trench cut cost recovery fees are not in conflict with or otherwise affected by provisions of State law granting some utilities the right to install underground facilities in City streets, because a trench cut cost recovery fee is not charged for the same right granted by State law, but, instead, is charged to recover the costs of mitigating the damage that the excavation causes to the pavement adjacent to the trench. Similarly, trench cut cost recovery fees do not conflict with the right of any utility issued a franchise by and paying an annual franchise fee to the City, 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 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, and (iv) franchises are subject to ordinances and regulations subsequently enacted by the City in the exercise of its police power.

11. Regulation of excavations in City streets to help reduce disruption of and interference with public use of the streets, and to help prevent pavement damage and maintain the safe condition of the streets protects the public health, safety and welfare, is a valid and appropriate exercise of the City's police power, and is a municipal affair.

12. With respect to the installation of telecommunications facilities, Section 253 (c) of the Federal Telecommunications Act of 1996 expressly recognizes the authority of local governments to impose reasonable nondiscriminatory fees upon telecommunications providers using the public right-of-way, and California Government Code õ 50030 specifically authorizes the imposition of permit fees that do not exceed the reasonable costs of providing the service for which the fee is charged.

13. Under existing law, public and private utilities with facilities installed in any street typically must relocate their facilities at their own cost, in the event that the relocation is required or made necessary by any proper governmental use of the street. The imposition of fees or other requirements in order to mitigate and reduce the adverse impacts of excavations, as authorized in this ordinance, is not intended to in any way affect or alter this obligation; said fees or other requirements are in addition to any relocation obligation.

SECTION 2

Chapter 38.03 of the Sacramento City Code is hereby amended to read as follows:

Chapter 38.03 Excavations
38.03.026 Permit--Required.
38.03.027 Same--Requirements.
38.03.028 Same--Issuance.
38.03.029 Compliance with safety regulations.
38.03.030 Excavations not in accordance with permit declared unlawful.
38.03.031 Restoration of pavement.
38.03.032 Opening, backfilling and paving trenches.
38.03.033 Cleaning up streets.
38.03.034 Repair of sunken pavement over excavation.
38.03.035 Failure to complete work within specified time.
38.03.036 Excavations, etc., to be under supervision of director.
38.03.037 Emergency excavations.
38.03.038 Blanket permits.
38.03.039 Liability of City.
38.03.040 Coordination of Excavations.
38.03.041 Additional requirements.
38.03.042 Appeal of director’s decision; protest of trench cut cost recovery fee.

38.03.026 Permit--Required

It shall be unlawful for any person to make or cause to be made any excavation in or under the surface of any public street, alley, sidewalk, or any other public place for the installation, repair or removal of any pipe, conduit, duct, tunnel, utility pole, or any other facility or installation or for any other purpose without first obtaining from the director an excavation permit in compliance with this chapter. As used in this chapter, the term "person" shall mean any person, company, partnership, agency or other public or private entity, excepting the City or a contractor performing an excavation for the City, and the term "director" shall mean the Director of the Department of Public Works for the City of Sacramento or his or her authorized representative.

38.03.027 Same--Requirements.

(a) Before issuing an excavation permit, the director shall require a written application on a form furnished by the director, setting forth :

1. The name and residence or business address of the applicant;

2. The location and approximate area of the excavation, including its approximate length and width, and, if the excavation is in a street, whether it is parallel or transverse to the direction of the travel lanes; and,

3. The purpose of the excavation.

   The applicant shall attach to the application form a plan showing the location of the proposed excavation, the dimensions thereof, and any other details the director may require. As used in this chapter, the term "applicant" shall mean the person applying for an excavation permit, as well as the person owning the facility or installation for which the excavation will be made. The director may establish different requirements for blanket permits issued under section 38.03.038 of this chapter.

(b) At the time the permit is issued, the applicant shall pay a nonrefundable fee in an amount established by resolution of the City Council to defray the City's costs to process the application and to inspect the excavation. The fee may also include any costs incurred by the City to maintain an inventory or database of facilities that are installed, repaired or removed during the excavation for which the permit is issued. In any case where the director determines the fee to be inappropriate based on the amount of work to be done to process the application, to inspect the excavation and to maintain said inventory or database, or for other good cause shown, the director may waive the fee, in whole or in part.

(c) At the time any permit is issued for excavation of a paved street, the applicant shall pay a trench cut cost recovery fee, in addition to the fee required by subsection (b), above. The fee shall not exceed an amount reasonably necessary to recover the estimated costs for all future maintenance, repair or resurfacing that would be necessary to fully mitigate the damage and degradation caused by the excavation to the pavement located adjacent to the trench where the excavation occurs. The fee shall be highest for excavations in newly surfaced streets and shall decrease as the age of the street surface being excavated increases. The amount of the trench cut cost recovery fee shall be established from time to time by resolution of the City Council. The director shall adopt procedures requiring the payment of the trench cut cost recovery fees by all City departments and divisions performing excavations in City streets.

(d) The trench cut cost recovery fee required by subsection (c), above, shall not be charged for the following excavations: (1) excavations in a street that the City has scheduled for resurfacing either during the fiscal year (July 1 -June 30) when the excavation permit is issued or during the immediately following fiscal year; (2) excavations in a street where the existing pavement quality is already so poor that the pavement quality index, as defined by the City's Pavement Management System, is less than four (4.0) on the date the excavation permit is issued; (3) excavations for potholing or to install utility poles; (4) excavations that will include resurfacing of the street where the excavation is made, provided that the resurfacing is approved by the director; and (5) excavations made for a utility relocation required by the City to accommodate a proper governmental use of a street, alley, sidewalk or other public place. As used in this chapter, the term "resurfacing" shall mean any repaving, overlay, seal or reconstruction which constructs a new pavement surface over the entire width of the street, excluding crack seals.

(e) All moneys paid to the City under subsection (c), above, shall be deposited in a special fund or funds and shall be expended only for the resurfacing of City streets where excavation has occurred after the effective date of the ordinance adopting subsection (c).

(f) Except for requirements subject to the exclusive jurisdiction of another regulatory agency, the location, depth and other physical characteristics of any facilities for which an excavation permit is issued shall be subject to approval of the director, and all backfilling, compaction and pavement restoration performed for any excavation shall comply with the requirements of this chapter.

(g) No fee or requirement authorized or imposed pursuant to this chapter shall be construed to affect or alter in any way any obligation of public and private utilities with facilities installed in any street, alley, sidewalk or other public place to relocate the facilities at no cost to the City, in the event that relocation is required by the City to accommodate a proper governmental use of the street, alley, sidewalk or other public place.

38.03.028 Same -- Issuance.

(a) Upon receiving a written application for an excavation permit and a plan, the director shall set forth all requirements, approve or disapprove the application, sign and return it to the applicant. Excepting only excavations made pursuant to section 38.03.037, Emergency Excavations and section 38.03.038, Blanket Permits, at least one (1) working day prior to the start of work, the applicant shall telephone the City street maintenance division and request a permit number, informing City the date the work will commence. A permit number shall then be assigned to the job and a permit shall be sent to the applicant.

(b) No permit shall be transferable. A permit shall be void unless the excavation to be made pursuant thereto is commenced within thirty (30) days from the date of its issuance and the work diligently completed.

(c) Each permit shall state a time period for completion of all the work to be done thereunder . The director may grant extensions of time for good cause.

(d) No person in violation of any requirement of this chapter shall be issued an excavation permit, nor shall any contractor or agent apply for or be issued an excavation permit on the person's behalf, until the outstanding violation is corrected or a plan for correction is approved by the director, which approval shall not be unreasonably withheld. The foregoing requirement is in addition to any penalty or remedy for violation that may be imposed or sought by the City at law or equity.

38.03.029 Compliance with safety regulations.

The permittee shall be responsible to comply with all current federal, state and local safety regulations and requirements. As used in this chapter, the term "permittee" shall mean the person to whom an excavation permit is issued, as well as the person owning the facility or installation for which the excavation permit is issued.

38.03.030 Excavations not in accordance with permit declared unlawful.

(a) It shall be unlawful for any person to make, cause or permit to be made, any excavation, or to install, cause or permit to be installed any tank, pipe, conduit, duct, tunnel, utility pole or other utility or appliance in or under the surface of any public street, alley, sidewalk or other public place, at any location, other than that described in the application for the excavation permit and as shown on the plans filed with the director, and in accordance with the requirements of the permit. If the circumstances appearing after the excavation is commenced make it impossible to comply with the permit, the director may grant a waiver to take the circumstances into account.

(b) Failure to comply with requirements set forth in this chapter or on any permit shall be cause for revocation of the permit until the violations have been corrected or alternative requirements have been approved by the director.

38.03.031 Restoration of pavement.

Unless otherwise specified in the permit, restoration of the asphalt pavement of any street, alley or other public place shall be performed by City forces. Nothing in this section shall relieve the person opening or tearing up any pavement from the responsibility to maintain the excavation or installation in a safe condition until it is repaved by City forces or otherwise restored. In addition to all other applicable fees or charges, the person making the street cut shall pay for repaving at a rate to be established by the City.

38.03.032 Opening, backfilling and paving trenches.

(a) No trench shall be opened in any street for the purpose of laying pipes, conduits or ducts more than four hundred (400) feet in advance of the pipe, conduit or ducts being placed in the trench, except when the prior written consent of the director has been obtained.

(b) All excavations shall comply with the standards and requirements established from time to time by the director for compaction, backfill and pavement restoration. The standards and requirements may impose different requirements for different excavations, taking into consideration relevant factors, such as (i) the location, type and extent of excavation performed, (ii) the condition of the surface being excavated, and (iii) the period of time elapsed since the construction or most recent resurfacing of the surface being excavated. The standards and requirements shall be reviewed at least once every five (5) years to determine whether any changes can be made to prevent or substantially reduce the degradation and damage caused to the street surface by excavation. As part of such review, the director shall provide affected utilities with an opportunity to review and comment upon the standards and requirements and any changes proposed thereto.

(c) The old torn up pavements and other rubble shall be removed, together with any surplus excavated material, within one (1) working day from the time such material is placed upon the street, provided that exceptions to this requirement may be approved by the director. After backfilling is completed, and prior to repaving the cut, the contractor or permittee shall remove all loose paving material and trim the edges of the excavation at the street surface to the satisfaction of the director.

(d) Whenever any caving occurs in the sidewalls of any excavation, the pavements above such caving shall be cut away. In no case shall any void under a pavement be filled by any side or lateral tamping.

38.03.033 Cleaning up streets.

In every case and at all times, the work of removing from the streets all obstructions, surplus materials, debris and waste matter of every description caused by and accumulated from the excavation shall be the responsibility of the permittee.

38.03.034 Repair of sunken pavement over excavation.

In case the pavement or the surface of the street or alley over any excavation should become depressed or broken at any time within five (5) years after the excavation has been completed and before resurfacing of the street or alley, natural wear of the surface excepted, the permittee shall, upon written notice from the director, immediately proceed to inspect the depressed or broken area over the excavation to ascertain the cause of the failure. The permittee shall make repairs to the installation or backfill and have the pavement restored as specified by the director, within such time period as may be specified by the director. The trench cut cost recovery fee established by section 38.03.027(c), above, shall not be charged for work performed under this section. If the pavement is not restored as specified by the director within the time period specified by the director, and unless delayed by a strike or conditions beyond permittee’s control, the director may cause the work to be done after giving the permittee twenty-four (24) hours final notice. The cost thereof, including any inspection costs and administrative overhead incurred by City, shall be assessed against the permittee. After the cost is paid to City, the City shall be responsible for any future repairs of that portion of pavement over the excavation that was repaired by City forces.

38.03.035 Failure to complete work within specified time.

If any part of the work referred to in this chapter is not completed within the time required except by reason of legal holidays or delays caused by strikes, the director may notify in writing the person performing the work to complete the work within forty-eight (48) hours thereafter, legal holidays excepted. If the work is not completed within this time period, the director shall have full power to perform the work, including such work as will restore the work area to a safe and passable condition until the work can be completed. The cost thereof, including any inspection costs and administrative overhead incurred by City, shall be assessed against the permittee.

38.03.036 Excavation, etc., to be under supervision of the director.

Any person engaged in making or backfilling any excavation in any public street, alley, sidewalk or other public place, shall at all times while such work is in progress keep at the job location the original permit, or a copy thereof, and shall, on demand, exhibit the permit to the director or any police officer. At all times while the work is in progress the person shall also maintain at the job location, a sign, barricade, or other device bearing the person's name.

38.03.037 Emergency excavations.

Nothing in this chapter shall be construed to prevent any person maintaining any pipe, conduit, or duct in or under any street, alley, sidewalk, or other public place by virtue of any law, ordinance or permit, from making such excavation as may be necessary for the preservation of life or property when the necessity arises, provided that the person making the excavation shall notify the director within one (1) day after the offices of the City are first opened subsequent to the excavation. Except as specifically provided otherwise in this chapter, excavations authorized by this section shall be subject to all fees and requirements of this chapter.

38.03.038 Blanket permits.

The director may issue blanket permits to any person to make excavations for utility service connections, for the location of trouble in utility conduits or pipes and for making repairs thereto, or for emergency purposes. Blanket permits shall be issued on a yearly basis only, and shall authorize only excavations referred to in this section. Except as specifically provided otherwise in this chapter, excavations authorized by this section shall be subject to all fees and requirements of this chapter.

38.03.039 Liability of City.

Neither the City nor any officer or employee thereof shall be held responsible for any damages caused by any excavations in any street, alley, sidewalk or other public place made by any person under the authority of a permit issued pursuant to the provisions of this chapter. The permittee shall be solely liable for any damage or loss occasioned by any act or omission occurring in connection with the excavation, and shall fully indemnify, hold harmless and defend City, its officers and employees from and against any and all suits, actions, judgments, losses, costs, demands, claims, expenses (including attorney's fees), damages, and liabilities of every kind to which the City, its officers or employees may be subjected for injury of any type, death or property damage arising from or connected with any such act or omission. City shall promptly notify a permittee, at the address set forth in the permit, of any claim or suit served upon the City and alleging negligent or wrongful conduct by the permittee in connection with an excavation.

38.03.040 Coordination of Excavations.

(a) 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. 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 semi-annually, on the first regular business day of January and July, a revised and updated utility master plan. 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 City street, alley, sidewalk or other public place for more than five (5) 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.

(b) Any City department owning, operating or installing utility facilities in City streets, alleys, sidewalks or any other public places shall prepare and submit to the director a utility master plan that shows the location of the department's existing facilities in City streets, alleys, sidewalks and other public places, and shows all of the department's planned major utility work in City streets, alleys, sidewalks and other public places. An initial utility master plan shall be submitted no later than one hundred eighty (180) days after the effective date of the ordinance adopting this section. Thereafter, each such department shall submit semi-annually, on the first regular business day of January and July, a revised and updated utility master plan. As used in this subsection, the term "planned major utility work" refers to any and all future excavations planned by the department when the utility master plan or update is submitted that will affect any City street, alley, sidewalk or other public place for more than five (5) days, provided that the department 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.

(c) The director shall make all utility master plans submitted in accordance with subsections (a) and (b), above, available for public inspection.

(d) The director shall prepare a five year repaving plan showing the street resurfacing planned by the City for the next five (5) years. The five year repaving plan shall be revised and updated on a semi-annual basis after receipt of the utilities' and City departments' utility master plans and updates. The director shall make the City's five year repaving plan available for public inspection. In addition, after determining the street resurfacing work that is proposed for each year, the director shall send a notice of the proposed work to all utilities that have current utility master plans on file.

(e) Prior to applying for an excavation permit, any person planning to excavate in the City's streets, alleys, sidewalks or other public places shall review the utility master plans and the City's five year 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 public use of such streets, alleys, sidewalks or other public places.

(f) Excavations in City streets disrupt and interfere with the public use of City streets and damage the pavement. The purpose of this section is to reduce this disruption, interference and damage by promoting better coordination among utilities making excavations in City streets and between these utilities and the City. Better coordination will assist in minimizing the number of excavations being made wherever feasible, and will ensure that excavations in City streets are, to the maximum extent possible, performed before, rather than after, the resurfacing of the streets by the City. Coordination also provides a means for utilities to avoid payment of a trench cut cost recovery fee either by eliminating the need for a new excavation, or, if an excavation is made, by allowing the excavation to qualify for an exemption from the trench cut cost recovery fee pursuant to section 38.03.027(d) of this code. However, even utilities performing the best possible coordination will find it necessary to make excavations that do not qualify for an exemption from the trench cut cost recovery fee. For this reason, and in order to provide a further incentive for such utilities to perform the best possible coordination, if a utility coordinates its work with other utilities and/or the City so that no trench cut cost recovery fee is required for at least 80 % of the linear feet of its total excavations in City streets during a calendar year, the utility shall receive a refund, without interest, of one-quarter (25 %) of the trench cut cost recovery fees the utility paid during that year. If a utility coordinates its work with other utilities and/or the City so that no trench cut cost recovery fee is required for at least 90 % of the linear feet of its total excavations in City streets during a calendar year, the utility shall receive a refund, without interest, of one-half (50%) of the trench cut cost recovery fees the utility paid during that year. If a utility coordinates its work with other utilities and/or the City so that no trench cut cost recovery fee is required for at least 95 % of the linear feet of its total excavations in City streets during a calendar year, the utility shall receive a refund, without interest, of 100% of the trench cut cost recovery fees the utility paid during that year. Upon appropriation by the City Council, City funds authorized for the purpose of maintenance, repair or resurfacing of City streets shall be transferred to the special fund or funds created pursuant to section 38.03.027(e) of this code, to replace any amount refunded pursuant to this subsection. The director shall adopt procedures for implementing this subsection.

38.03.041 Additional requirements.

(a) In addition to the requirements of this chapter, cable television franchisees and licensees shall construct facilities in accordance with the provisions of Title 20 of this code. In the event of any conflict between the requirements of this chapter and the provisions of Title 20, the provisions of Title 20 shall govern.

(b) All utility installations permitted under this chapter shall, upon demand of the director, be relocated or lowered if required by the City to avoid potential conflicts with a proper governmental use of a street, alley, sidewalk or other public place. All expenses incurred in relocating, lowering lines, potholing or marking of facilities to determine their exact location after the original installation shall be paid for by the permittee.

(c) Upon completion of underground or surface work permitted under this chapter and at the discretion of the director, permittee shall furnish as built plans of the installation showing a correct plan view to scale, details and a profile showing the locations of all elements of the installation based on data obtained in the field during construction.

(d) Private parties and non-public utilities shall comply with the following additional requirements:

1. Permittee shall take out, pay for and maintain during the period in which the permit is in effect, a policy of public liability and property damage insurance protecting permittee, permittee's agents and employees against any liability, injury or death sustained or suffered by the public or damage to the property of the public by reason of the work carried on under the permit. The public liability insurance shall be for the limits of at least $300,000 for injury to one (1) and $500,000 for injury to more than one (1) person, and the property damage insurance limit shall be at least $100,000. The insurance shall be placed with a company satisfactory to the Risk Management Division of City, prior to the date that work under the permit is commenced. The policy or policies of insurance shall name the City, its officers and employees as additional named insureds and shall contain an endorsement precluding cancellation or reduction in coverage without giving the Risk Management Division at least ten (10) days written notice prior thereto.

2. If required on the face thereof, the permit shall not be effective for any purpose unless and until the permittee files with the Risk Management Division a corporate surety bond or other security approved by the Risk Management Division in the amount specified on the face of the permit, said bond or other security to fully assure the performance by permittee of all obligations imposed upon permittee under the provisions of the permit and this chapter.

38.03.042 Appeal of director’s decision; protest of trench cut cost recovery fee.

(a) A person directly and adversely affected by a decision made by the director pursuant to the provisions of this chapter may appeal the director’s decision by filing a written notice of appeal with the City Manager no later than ten working (10) days after receiving notice of the director’s decision. The notice of appeal shall set forth the name, mailing address and telephone number of the person appealing. The notice of appeal shall include or attach a statement describing the action being appealed, setting forth the grounds for the appeal, and describing the action requested of the City Manager. The scope of the appeal shall be limited to the grounds specified in the notice of appeal. No later than thirty (30) days after the filing of a timely notice of appeal, the City Manager shall render a decision on the appeal. The City Manger's decision may affirm, reverse or modify the decision appealed. A copy of the City Manager's decision shall be provided to the person appealing at the address shown on the notice of appeal. Said person may appeal the City Manager's decision to the City Council by filing a written notice of appeal no later than ten working (10) days after the City Manager’s decision is received by the person, in accordance with the provisions of Sections 2.05.400 and following of this code.

(b) Any person required to pay a trench cut cost recovery fee pursuant to Section 38.03.027(c) who desires to protest or otherwise challenge imposition 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:

1. A statement that the required payment is tendered under protest; and

2. A description of the factual and legal basis for the protest.

3. Any judicial action or proceeding to attack, review, set aside, void or annul the imposition of a trench cut cost recovery fee for which a written notice of protest is filed pursuant to subsection (b), above, shall be filed no later than 90 days after the notice is received by the City.

SECTION 3

City staff currently is meeting with representatives of utilities that will be required to pay trench cut cost recovery fees pursuant to City Code Section 38.03.027(c) to determine whether the City's standards and requirements for compaction, backfill and pavement restoration (hereafter referred to as the "City Restoration Standards") can be improved. Affected utilities may, no later than one (1) year after the effective date of this ordinance, submit to the Director of Public Works or his or her authorized representative (hereafter referred to as the "Director") information regarding the City Restoration Standards. The Director shall review this information and any other information which the Director finds is relevant. If, after this review, the Director determines that the City Restoration Standards should be revised, the Director shall adopt such revised City Restoration Standards as Director determines to be appropriate, and shall report the results of this review and determination to the City Council no later than eighteen (18) months after the effective date of this ordinance or six (6) months after receiving all information submitted by affected utilities, whichever occurs first.

No later than three (3) years after making the foregoing report to the City Council, the Director shall report to the City Council the Director's findings regarding the effect of the City Restoration Standards, including the effect, if any, on pavement damage occurring adjacent to the trench where an excavation occurs. The Director shall also recommend to the City Council, based on the Director's findings, whether the trench cut cost recovery fee requirement established by City Code Section 38.03.027(c) should remain in effect, should be modified or should be eliminated. Prior to making this report to the City Council, the Director shall provide affected utilities with an opportunity to review and comment upon, and present information relevant to, the Director's findings and recommendation. The trench cut cost recovery fee requirement established by City Code Section 38.03.027(c) shall not be modified in such a manner that permits said fees to exceed the amount reasonably necessary to recover the estimated costs for all future maintenance, repair or resurfacing that would be necessary to fully mitigate said pavement damage.

SECTION 4

Should any part of this ordinance be declared invalid by a court of competent jurisdiction, the remaining provisions of this ordinance shall remain in full force and effect.

DATE PASSED FOR PUBLICATION: September 16, 1997

DATE ENACTED: September 23, 1997

DATE EFFECTIVE: October 23, 1997

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MAYOR

ATTEST:

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CITY CLERK