Excavations in public right-of-way and Kansas City's cost recovery plan

Jere Meredith, P.E.
Assistant Engineering Director
Street and Traffic Division
Public Works Department
City of Kansas City, Missouri

Background Information
On several occasions in recent years, the City of Kansas City, Missouri attempted to implement a fee structure that recovered the cost of damage to its streets by utility cuts and provided incentives to minimize cutting of newly resurfaced streets. These efforts failed because of opposition or threat of legal action by affected parties. Finally, after being overwhelmed by the destruction caused by the telecommunications industry in the late 1990s and 2000, an ordinance addressing these issues was passed in February 2001. The permit fee structure adopted in this ordinance and the process followed in its development are described below.

Permit Fees and Process
The city has a responsibility to protect public assets. The lack of a recovery fee assessed against those who cut streets means that the costs of cuts is borne by those who have not caused the damage and are not in a position to reduce the damage. The excavation permit process, when combined with a damage recovery fee based on the damage that a cut causes, is an equitable method of making those responsible pay for the damage they cause.

Determination of Damage. Street cuts increase the rate at which pavement deteriorates, requiring increased city maintenance and more frequent resurfacing. The accelerated deterioration also results in a rougher pavement surface increasing the costs that motorists pay for operating their vehicles. Factors often cited for rapid deterioration include backfill settlement, weakening, cracking, and water damage.

In order to determine the damage caused by street cuts, the city entered into a contract with Terracon Consultants, Inc. from Lenexa, Kansas. The purpose of this study was to assess the effect of utility cuts on the structural capacity of surrounding pavements.

Terracon's analysis showed that the zone of influence was about 2.5 feet outside the cut. The study also reported that an overlay of 1.5 inches would offset the structural deficiency in the zone of influence, but would not address the reduction in capacity of the joint of the restored cut and the surrounding pavement. After the initial report, Terracon was directed to further assess the area surrounding cuts where work could feasibly be conducted to repair structural deficiencies. Terracon found that the surrounding pavement should be saw cut (full depth) in a rectangular pattern extending 21 inches beyond the edge of the utility cut after all work and backfilling within the cut is completed. The findings of this study were used in the development of the fee structure.

The permit fees charged, the plan to recover costs associated with the degradation of the pavement, and economic incentives provided to avoid cutting recently constructed or resurfaced roads are described below.

Excavation Permit Fees. In order to obtain a permit for excavation, an application fee, a pavement degradation fee, and deposit for restoration expenses are paid by the contractor or party requesting the permit. A non-refundable fee in an amount sufficient to defray the expenses of investigating the application, issuing the permit, and inspecting the excavation site is charged. The minimum fee for all excavations up to 100 lineal feet is $50, and for each additional 100 lineal feet of excavation or portion thereof an additional $50 is charged. As a condition for the issuance of an excavation permit, the applicant is also required to furnish and maintain restoration deposit(s). These deposits depend on the location and length of the excavations; for excavation lengths of less than 1,000 feet they range between $500 to $2,500.

In addition to the above fees, if the excavation is located in the paved portion of the right-of-way, degradation fees are charged to recover the cost of the diminution of the life of the pavement. The same fee structure provides incentives to avoid recently constructed or resurfaced streets. In calculating degradation fees in paved portions of right-of-way, an area of influence equal to two feet all the way around the cut is added to the size of the cut that is expected to be made. The calculated area of influence is based on Terracon's study described previously in this paper.

Formula for Calculation of Degradation Fees
The basic formula adopted to calculate the degradation fees and provide incentives to avoid cutting recently constructed or resurfaced streets is:

  • (Area of cut + 2 feet all the way around the cut) x Costs (construction + overlay + slurry seal)
Illustration. A 3 ft. by 5 ft. pavement restoration in a street constructed in 1960 and overlaid in 1998.
  • Construction cost = $2.00/sq. ft. (over 25 years old)
  • Overlay cost = $ .36/sq. ft. (overlay 2 years old)
  • Slurry seal cost = $0.00
  • Total cost = $2.36/sq. ft.
  • The area of influence is equal to the area of restored pavement plus 2 ft. on each side.
  • 3 + 4 x 5 + 4 = 63 sq. ft.
  • Degradation fee = Cost x area of influence
  • $2.36 x 63 sq. ft. = $148.68
Other Significant Features of the Ordinance
  • Before beginning any work in the ROW, all ROW users shall first provide not less than 24 hours notice to persons residing on property adjacent to the right-of-way site of the excavation.

  • If the ROW user damages or interferes with facilities of other parties or services to other parties, the ROW user shall repair or cause to be repaired those facilities on an emergency basis and shall not discontinue repair work until all damages are completed and all services are restored.

  • A ROW user must respond within 30 days in writing to any person making a claim against that ROW user arising out of the use of the right-of-way.

  • The installation of a new facility and the relocation of an existing facility in the right-of-way shall maintain a minimum horizontal separation of two feet and a minimum vertical separation when crossing all other facilities of one foot.

  • If directional boring methods are used in the installation of a facility in the right-of-way, then a minimum horizontal separation of three feet and a minimum vertical separation of three feet from other facilities in the right-of-way shall be maintained unless the Director approves a variance and the ROW user field locates all potential facility conflicts by exposing the other facilities.

  • The period for maintenance of an excavation restoration will extend for three years from the acceptance of restoration performed pursuant to the permit.

  • Adjustment of fees. The city manager shall have the authority to adjust the application fees listed above to reflect change in the consumer price index.
Conclusions
The street system represents a substantial investment of public funds. As a steward of the system, the city is obligated to protect that investment. Local governments, in order to fulfill their fiduciary and stewardship responsibilities to the public, must now find ways to effectively manage this public asset. Plans must be developed for the orderly use of public right-of-way, as well as creating methods for identifying and recovering public costs involved with this process. The cost recovery plan explained in this paper is an attempt to meet the above-described objectives. As of June 1, 2002, the ordinance has been in place one year and has generated approximately $1.2 million in revenue that is dedicated to road improvements.

References

  • Performance Audit, Public Works Department Utility Cuts Program, March 1994, by City Auditor's Office, City of Kansas City, Missouri

  • Follow-up Audit, Public Works Department Street Cut Inspection Program, March 1999, by City Auditor's Office, City of Kansas City, Missouri

  • Pavement Evaluation Report, Utility Cut Study, Prepared for Kansas City, Missouri, by Terracon Consultants, Inc., Lenexa, Kansas

  • Addendum to Pavement Evaluation Report, Utility Cut Study, Kansas City, Missouri, by Terracon Consultants, Inc., Lenexa, Kansas
To contact Jere Meredith, P.E., call (816) 513-2665 or send e-mail to jere_meredith@kcmo.org.