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HomeMy WebLinkAboutPW Sidewalk Maintenance Report7 � SAN RAFAEL Agenda Item No: 7_c THE CITY WITH A MISSION Meeting Date: June 19, 2017 SAN RAFAEL CITY COUNCIL AGENDA REPORT Department: Public Works Prepared by: Bill Guerin, City Manager Approval: Director of Public Works File No.: 06.01.215 TOPIC: SIDEWALK MAINTENANCE WITHIN THE CITY RIGHT OF WAY SUBJECT: SIDEWALK MAINTENANCE POLICY WITHIN THE CITY OF SAN RAFAEL STREET RIGHT OF WAY TO ENSURE THAT SIDEWALKS ARE FREE OF TRIPPING HAZARDS AND OTHER UNSAFE CONDITIONS PURPOSE: Staff is seeking input in order to finalize a plan to ensure that sidewalks within the City right of way are safe and maintained. Staff will present the final plan for approval at a future City Council meeting. BACKGROUND: Many sidewalks within the City are in a state of disrepair due to age, poor construction quality, deferred maintenance, tree and vegetation roots, etc. The severity of the disrepair varies from neighborhood to neighborhood. Sample data from sidewalks throughout the City was collected in a Sidewalk Inspection survey conducted by a contractor (Precision Concrete Cutting) in the fall of 2016. That survey identified significant sidewalk damage throughout the City with the potential of $5-10 million in repair costs. For maintenance of sidewalks within the City, the current policy is to follow the State of California Streets and Highways Code 5610 that places the burden of sidewalk maintenance on the adjacent property owner. The code states in part that: The owners of lots or portions of lots fronting on any portion of a public street or place when that street or place is improved or if and when the area between the property line of the adjacent property and the street line is maintained as a park or parking strip, shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property and maintain it in a condition which will not interfere with the public convenience in the use of those works or areas save and except as to those conditions created or maintained in, upon, along, or in connection with such sidewalk by any person other than the owner, under and by virtue of any permit or right granted to him by law or by the city authorities in charge thereof, and such persons shall be under a like duty in relation thereto. FOR CITY CLERK ONLY File No.: 11-7 Council Meeting: 06/19/2017 Disposition: Accepted report SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2 By having each adjacent property owner be responsible for the sidewalk adjoining his or her property, the State Streets and Highway Code 5610 avoids placing the financial burden of sidewalk maintenance on any one entity. Some San Rafael property owners have expressed concerns that Streets and Highways Code 5610 unfairly burdens adjacent property owners with costly sidewalk repairs. Additionally, since all work done to fix sidewalks is located within the right of way and therefore requires an encroachment permit from the City, property owners felt that they should not have to pay this additional permit fee to the City to perform the repairs as required by the City. Public Works has been researching this issue for some time and has presented sidewalk repair ideas to the Council on several occasions including a study session in August 2016 where staff sought Council feedback before conducting outreach with San Rafael residents. In addition, in a survey conducted by staff found that more than 70% of communities place the responsibility for sidewalk maintenance on the adjacent property owner. This is done by relying on the California Streets and Highways Code or by communities approving ordinances that clearly define responsibility to maintain and liability. In October 2016, staff conducted three public outreach sessions and an online survey to obtain feedback from the community on this issue. The majority of those surveyed believe that the City should pay for and maintain all sidewalks (55 percent), compared to 22 percent of those who supported a shared arrangement, and 17 percent that felt that an assessment district or parcel tax was the best approach. Only 6 percent were favorable to the existing State Code, whereby the adjacent property owner is responsible for the costs of all repair and maintenance. Staff presented these options to the City Council at a Council meeting on February 6, 2017. At that meeting, there was a general consensus that the City needed to establish a formal policy and ordinance to clarify the responsibility for sidewalk repair and maintenance, since constituents found considerable ambiguity in the language of Streets and Highway Code 5610. City Council and the public also provided feedback that they would like to see the establishment of a City program that provides some financial relief and incentive to adjacent property owners seeking to repair their sidewalks and with fees charged by the City to perform the work. Based on outreach to the community in October 2016, feedback from the public and City Council in February, and research into how other communities have handled sidewalk maintenance and responsibility, Public Works staff is recommending moving forward with the following: 1. Adopt a City ordinance that clarifies that the responsibility for performing and funding. sidewalk maintenance and repairs rests with the adjacent property owner. 2. Include in the ordinance a provision that specifically makes the adjacent property owner liable for iniuries incurred by pedestrians as a result of a defective condition of the adjacent sidewalk. Maintenance and Repair Work: Nearly all jurisdictions surveyed in the Bay Area, and in Marin as well, have adopted their own Ordinances for Sidewalk Maintenance, rather than defer to the State Code. Regardless of whether the jurisdiction had elected to offer financial support to property owners or not, jurisdictions still placed the duty to perform the maintenance upon the adjacent property owner to eliminate ambiguity on this matter. The City does not have sufficient resources to provide the regular inspections and tracking of sidewalk maintenance status throughout the hundreds of miles of sidewalk in the City, nor to fund all the repairs as soon as they are needed. SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3 The City is not able to take on this responsibility; therefore as previously stated, the City has deferred to the State Code, which places responsibility for performing and funding sidewalk maintenance upon the adjacent property owner. Staff is recommending moving forward with the adoption of a City ordinance that clarifies that the adjacent property owner is responsible for performing and funding the maintenance and repairs associated with sidewalks fronting their property. Liabilitv for Iniuries: Many other jurisdictions also impose on the adjacent property owner the financial liability to persons using the sidewalk when they are injured because of a defective condition of the sidewalk. This is not a liability imposed by Streets and Highways Code 5610. Under the statutes and case law establishing government tort liability for injuries attributable to defective sidewalks, liability for injuries to persons using the sidewalks is not automatically placed on the adjacent property owner, and may be held to be the responsibility of the city in some situations. However, California courts have held that a city may adopt an ordinance that specifically makes the adjacent property owner liable to a person who is injured because of a defective condition of a sidewalk. While such ordinances may not eliminate the liability of the city in such a case, they are effective in equitably allocating the risk arising from sidewalk injuries between the city and property owners. In virtually every instance, property owners will possess property insurance that provides them with coverage for claims arising from such injuries. Therefore, staff is recommending that the City Council consider including in the proposed ordinance a provision imposing this liability for sidewalk injuries on the adjacent property owners in addition to the responsibility for performing the maintenance work. In staff's view, legally and economically, the most efficient and effective way to ensure that sidewalks are maintained in a safe condition is to impose on the adjacent property owner not only the maintenance responsibility but also the liability for injuries that sidewalk users may incur. Shared program for cost of sidewalk repairs: Acknowledging that the new ordinance clarifies that liability lies with adjacent landowners based on State law, and that the cost associated with the responsibility to maintain sidewalks may be a financial burden for some property owners, staff is recommending that concurrently with adoption of an ordinance, the City create a program that supports sharing the cost of sidewalk replacement and/or repair between the property owner and the City. The plan includes setting aside $150,000 per year for sidewalk repairs and replacement and enables property owners seeking to perform repairs to apply for up to $1,000 in financial assistance from the City per property. The City will share up to one-half the cost of sidewalk repairs up to a maximum of $1,000. The City will contract with one or more sidewalk repair contractors that will perform shared sidewalk repair work, and property owners seeking to participate in the program must utilize the City's contractor(s). Further, where tree work is required to complete the sidewalk repair, the City will fully fund the tree maintenance associated with the repair, either root trimming or removal. The City will also waive the cost of an encroachment permit for any property owner participating in the program (currently $246 per permit). Finally, a large number of sidewalks with slight concrete displacements can be repaired by a trimming method (rather than full removal and replacement of the sidewalk), and the City will separately issue a contract of $50,000 per year to "shave" sidewalk offsets where there is displacement of the cement sidewalk of 2" or less. This would be performed as a courtesy by SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 4 the City for property owners seeking minor repairs. It is important to note that providing this service would not make the City liable for sidewalk repairs where shaving occurs. 4. Implementation of the cost sharing program: The cost sharing program, if approved, would be piloted this coming year beginning in July 2017, and implemented over a period of months. It will consist of the following steps: Eligibility for Participation in program The City is divided into eight zones which the Department of Public Works utilizes for everything from tracking city projects to emergency response. Since it is inefficient and not cost effective to perform sidewalk repairs throughout the City in one year (concrete repairs are costly when they are spread out), staff proposes utilizing the eight zone districts for eligibility in the program. The Sidewalk Inspection survey, conducted in fall 2017, assessed sample stretches of sidewalks by the eight zones, and would be able to provide a summary of which zones have the highest frequency and severity of sidewalk damage. Staff recommends opening the cost sharing program to those zones first; concentrating sidewalk repair, replacement and "shaving" work in one subsection of the City at a time, eventually covering the entire city after several years. One to two zones will be eligible for the program each year, depending on the work that is needed in the zone. Selection of Contractors City will submit a Request for Proposals for a sidewalk repair contractor, and secure a contract(s)for the City cost sharing program which achieves economies of scale in the unit pricing for repairs. Depending upon the scope of work in the proposals submitted, separate Request for Proposals for sidewalk "shaving" and tree work as it relates to sidewalk repairs may be needed as well. Program Roll -Out 1. Staff will announce a specific day and time in which property owners, in that year's eligible zone(s), may apply for up to $1,000 in matching funds for their sidewalk repairs. The program will remain open until there are enough applications to utilize the annual $150,000 in City funds. Acceptance into the cost-sharing program will be on a "first come, first served" basis in the zone(s) where the work is taking place in a given year. 2. Property owners will be notified that they have been conditionally accepted into the program, upon inspection of their sidewalk and requested repairs by Public Works. Any property owner electing to participate in the City's cost share program for sidewalk repairs must utilize the City's contractor(s) for their repairs to be eligible for the up to $1,000 contribution of the work from the City. 3. The contractor(s) will provide a not to exceed estimate of the construction costs for each of the 150 parcels accepted into the program each year. Prior to commencing the construction work, property owners will be required to pay 50% of the cost estimate (less the City's contribution up to $1,000) in advance of the work being completed, and will sign a contract to participate and agree to pay the remaining 50% balance upon completion and inspection. Other Work Required For sidewalk displacements within the selected zone where removal and replacement of the sidewalk is not required (2" or less), the City will coordinate with the sidewalk "shaving" contractor to complete repairs. These will be done at no cost to the adjacent property owners. SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 5 City will coordinate with the construction contractor(s) and tree maintenance contractor to remove or root -shave the adjacent trees as needed with repairs. City will plant new trees as requested by the adjacent property owner, from a pre -selected list of trees that are less impactful to the sidewalk After the completion of the first pilot year, staff and Council will make any required changes going forward with the intention of continuing the program on an annual basis so long as there are funds identified in the Capital Improvement Plan for the program and there is interest from the community to participate. Note: While the shared program for sidewalk repairs will be considered a pilot in its first year and will remain subject to funds availability, the City ordinance clarifying responsibility for maintenance and liability associated with sidewalk repairs and injury would take effect immediately upon the effective date of the ordinance. At this time an ordinance has not been brought forward, but staff intends to bring one to Council in July. FISCAL IMPACT: Senate Bill 1 will provide the City with additional funding for street related repairs. Those monies, a part of the Gas Tax Fund 206, will be used in part to fund this program. Adoption of this program will require that the City set aside $200,000 per year to support the sidewalk repairs and sidewalk shaving programs. In addition, the City will need to set aside additional funding (assumed to be approximately $150,000) to pay for tree root trimming or removal. OPTIONS: 1. Provide direction to staff to move forward with bringing forward an ordinance that clarifies the responsibility for performance and funding of sidewalk maintenance and repairs on the adjacent property owner and for development and implementation of a program for a cost-sharing.. 2. In addition to 1 above, direct staff to include in the ordinance a provision clarifying that all liability for injuries to persons caused by a defective sidewalk is the responsibility of the adjacent property owner. 3. Provide alternative direction to staff regarding the options listed above. RECOMMENDATION: Staff is seeking input from the Council in order to bring forward a proposal for a new Sidewalk Repair Ordinance and put in place a shared sidewalk repair program as outlined above. ROUTING SLIP / APPROVAL FORM INSTRUCTIONS: Use this cover sheet with each submittal of a staff report before approval by the City Council. Save staff report (including this cover sheet) along with all related attachments in the Team Drive (T:) --> CITY COUNCIL AGENDA ITEMS 4 AGENDA ITEM APPROVAL PROCESS 4 [DEPT - AGENDA TOPIC] Agenda Item # Date of Meeting: 6/19/2017 From: Bill Guerin Department: Public Works Date: 6/13/2017 Topic: SIDEWALK MAINTENANCE WITHIN THE CITY RIGHT OF WAY Subject: SIDEWALK MAINTENANCE POLICY WITHIN THE CITY OF SAN RAFAEL STREET RIGHT OF WAY TO ENSURE THAT SIDEWALKS ARE FREE OF TRIPPING HAZARDS AND OTHER UNSAFE CONDITIONS Type: ❑ Resolution ❑ Ordinance ❑ Professional Services Agreement ® Other: Staff Report APPROVALS ® Finance Director Remarks: Approved -Van 6/13/17 ® City Attorney Remarks: LG -Approved 6/14/17 ® Author, review and accept City Attorney / Finance changes Remarks: TS - accepted all changes as of 6/14/17 AM ® City Manager Remarks: June 16, 2017 VIA Reryular US Mail and E -Mail City of San Rafael 1400 Fifth Avenue San Rafael, CA. 94915 RE: Agenda item 6/19/17 -Sidewalk and Maintenance Within City Right of Way Dear Mayor Phillips and City Council Members, The Public Works Department (PWD) Agenda Report, once again, is constructed to deceive you and property owners into thinking that property owners have an obligation to repair City sidewalks damaged by street trees in the right of way and makes recommendations that are unfair, unlawful and inequitable and for some a financial burden. This letter addresses the PWD recommendations with regards to the unsafe conditions of sidewalks caused by street trees and their roots. In an attempt to shine the light away from the PWD itself, the PWD states that: "For maintenance of sidewalks within the City, the current policy is to follow the State of California Streets and Highways Code 5610 that places the burden of sidewalk maintenance on the adjacent property owner." However, it fails to let City Council and property owners know about the important exception to the Code which states in pertinent part "except as to those conditions created or maintained .... by any person other than the owner ". The KEY operative words being `other than by owner'. The plain meaning is obvious. Much of the unsafe conditions of our city sidewalks were caused by the Citv. The City planted, controlled and or maintained trees and those known to damage sidewalks and streets, such as the notorious liquidambar, and then failed to (a) remove those trees to mitigate damages and or (b) repair the unsafe conditions of the sidewalks. The City had a duty to remove liquidambar trees known, as early as 1980, to be the most sidewalk damaging species in the San Francisco Bay Area.' And now again the PWD is disregarding the true and plain meaning of the Code and the City's duty and trying to transfer the burden unto property owners. Trying to get you, our City Council Members, to (a) create unlawful and unfair financial burdens on property owners ... for the unsafe conditions that the PWD should have been repairing all along and to (b) disregard the property owners who gave formal notice that they `met' the exception to the Code and to (c) punish property owners who happen to have a street tree adjacent to their property. Clearly there are two distinct and separate categories of sidewalk maintenance at issue to ensure safe sidewalk conditions which are: (a) unsafe conditions of sidewalks caused by trees and their roots and (b) unsafe conditions caused by age and other causes. 1. In 1980 study by Mr. Wagar and Mr. Barker, Project Leader and Plant Physiologist, Landscape and Urban Forestry Research Unit, of 10 of the most commonly planted city tree species, in the San Francisco Bay area. Also, Journal of Arboriculture 9 (7) 1983 titled "Tree Root Damage To Sidewalks and Curbs" by Wagar and Barker. Important Facts To Consider 1. California Civil Code 1714 states that everyone is responsible for their own negligence which includes the City of San Rafael. 2. State of California Streets and Highways Code 5610 places the burden of sidewalk maintenance on the City where the sidewalk damage is caused by the City's street trees, which is consistent with Civil Code 1714. 3. San Rafael street trees are part of its urban forestry program and considered infrastructure - public improvement, wherein the City planted, controlled and or maintained the street trees (or lack thereof) for 34 years for the benefit of the public, the community and the City itself. 4. There is no equity in the application of the PWD recommendations which transfers the maintenance and/or liability for sidewalk maintenance needed or injuries incurred due to unsafe conditions caused by street trees. Property owners who happen to have a tree adjacent to their property should not be required to pay for damages caused by City infrastructure/public improvement, especially one that also provides benefits to the City. Taxpayer dollars were used for this infrastructure/public improvement and it follows that taxpayer funds are to be used to repair damages caused by it. 5. Regardless of any requirement that property owners repair sidewalks adjacent to their property, the City maintains a non -delegable duty to its citizens for their safety. 6. The PWD recommendations will cause significant financial injury to homeowners over 60 or with low incomes and failed to provide any considerations for these groups of vulnerable people. 7. The City's Tree Advisory Committee Final Report and Recommendations dated July 2010 set out street tree removal criteria that included hazards caused by tree structure. Capping the matching funds, with respect to sidewalks damaged by tree roots, is unfair and discriminatory as it does not treat all homeowners equally. I implore the City Council to never transfer its financial burdens or liability unto its taxpayer/property owners or a particular group of them; to protect the vulnerable groups of people; to recognize the different categories of sidewalk maintenance issues; to acknowledge the plain meaning of Code 5610 wherein it is the City's duty to maintain/repair damage caused by street trees; and to recognize the duty of the City to repair damages caused by the infrastructure/public improvements it created and maintains. I object to the acceptance of the recommendations proposed by the DPW particularly with respect to sidewalks maintenance requirements for the unsafe conditions caused by street trees and the transfer of liability. These remarks are made in addition to my prior objections and remarks expressed in previous correspondence. Best regards, San Rafael, CA 94901 June 17, 2017 VIA Regular US Mail and E -Mail City of San Rafael 1400 Fifth Avenue San Rafael, CA. 94915 RE: Agenda item 6/19/17 -Sidewalk and Maintenance Within City Right of Way SUPPLEMENT TO LETTER Dated 6/16/17 Dear Mayor Phillips and City Council Members, When the City targets the property owner to repair sidewalks damaged by street trees (city trees) which are part of the infrastructure of the City and a public improvement, it is targeting and thus burdening a select specific group of property owners to maintain and be responsible for damages caused by City infrastructure which exists and was created and maintained by the City for the benefit of all residents, visitors and for which there are monetizable benefits to the Citv. This is an unfair and unconscionable burden. It is akin to requiring property owners who live adjacent to a City park [infrastructure/public improvement] to be responsible for its maintenance and repairs. State and Highway Code 5610 recognized that sidewalks could and would be damaged by entities `other than the property owner' and provided an exception where in those cases the property owner was not responsible for the maintenance and or repairs. This makes good sense. The recommendations of the PWD have no such provisions and would result in making property owners responsible and liable in ALL cases which is unconscionable and not in conformity with Code 5610. Other cities have implemented ordinances that include language which is in conformity with the State and Highway Code including the exception. It seems to me that PWD is determined to have a sidewalk maintenance ordinance accepted simply to (1) avoid the City's responsibility, under the Code and or basic law, for the damage caused by the street trees and (2) to force -ably transfer the financial burden of these sidewalk repairs onto the backs of a select group of taxpayers instead of all taxpayers. The City planted (in most cases), controlled and or maintained the street trees that caused the root damage to our sidewalks. The City is obviously the responsible party who has the duty to repair and pay for the repairs that its own forestry program created. The property owner did not control or maintain the street trees ... thus not responsible for the sidewalk repairs needed because of forestry program root damage. Best regards, Dry a From: michaeIIeonard05@comcast. [ Sent: Friday, June 16, 2017 8:53 PM To: City Manager Subject: Re: The latest and the greatest news from your San Rafael City Manager Really Freitas Parkway sidewalks have been replaces. Maybe you should go visit before you write a story. Sorry but not done and maybe you should consider bidding for work rather than giving everything to the saine contractor who always delivers late Sent from my iPad STEVEN SCHOONOVER Attorney at Law June 16, 2017 City of San Rafael Gary Phillips — Mayor Maribeth Bushey — Vice Mayor Kate Colin — Councilmember John Gamblin - Councilmember Andrew McCullough — Councilmember City Hall — 1400 Fifth Avenue San Rafael, CA 94901 Re: 6/19/2017 agenda (sidewalks) Dear Mayor Phillips and Councilmembers: Your Public Works Department (DPW) urges you to adopt a sidewalk maintenance ordinance conveniently worded to accomplish its goals, but intentionally crafted to deceive San Rafael property owners into believing that they have a blanket obligation to repair all damage to City sidewalks adjacent to their property. To justify this slight -of -hand, the DPW cites other cities who have adopted ordinances remarkably similar to that which the DPW wishes to foist on the public. Kind of like the little kid justifying his misbehavior by reminding his parents that "Johnny did it too." California Civil Code § 1714 provides that everyone is responsible for their own negligence (including the City of San Rafael.) Streets & Highways Code § 5610 reflects this basic legal principal. The City of Chico has a lot of street trees (planted in the city right-of-way next to sidewalks throughout the City.) By and large, Chico's sidewalks are in pristine condition. Chico also has a sidewalk maintenance ordinance, a copy of which I've included with this letter, that accurately reflects the plain meaning of Streets & Highways Code § 5610 and conforms to the provisions of California Civil Code § 1714. 1 urge you to carefully review Chico's ordinance and, should you choose to adopt any ordinance, emulate Chico's. Mayor & Councilmembers City of San Rafael June 16, 2017 Paqe 2 of 2 Your DPW acknowledges that sidewalks in San Rafael's Gerstle Park Neighborhood (where I live) are in a dangerous condition, some portions of which are entirely unusable by ambulatory individuals, and certainly unusable by wheelchair users (implicating ADA mandates.) We often see wheelchair users traveling on our streets because the sidewalks are too dangerous. If you choose to survey Gerstle Park sidewalks, you'll see that 90% of the sidewalk damage has been caused by roots from trees planted by the city in its right-of-way. Repair of sidewalk hazards poses serious financial challenges recognized by all. However, this City should never attempt to solve its financial problems on the backs of innocent property owners utilizing deceptive practices, misrepresentations that will most certainly invite legal challenge. A more creative approach is needed. All available sources of grant funding should be exhausted. Barring funding from elsewhere, I suggest this City begin this journey of a thousand miles by repairing, one -by -one, the worst of the damaged sidewalks. Such an approach is preferable to doing nothing. Like the City's ADA obligation to install curb -cuts, its obligation to make its sidewalks accessible to all can be satisfied in a piecemeal fashion. That would be preferable to the current approach in which nothing is done. Sincerely, Steven Schoonover SS/gh cc: Robert Epstein, City Attorney CITY OF CHICO MUNICIPAL CODE 14.20.030 Duties of property owners. The owners of lots or portions of lots fronting on any portion of a public street or place, when that street or place is improved, or if and when, the area between the property line of the adjacent property and the street line is maintained as a park or parking strip, shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property, and maintain it in a condition which will not interfere with the public convenience in the use of those works or areas, save and except to those conditions created or maintained in, upon, along, or in connection with such sidewalk by any person other than the owner, under and by virtue of any permit or right granted to such person by law or by an authorized authority of the city in charge thereof, and such persons shall be under a like duty in relation thereto. (Prior code § 23.73 (Ord. 593 §3), Ord. 2268)