Modesto Municipal Code Ch. 2 Street Cuts

* Prior history: Former Ch. 2, Street Cuts, was amended by Ord. 782-C.S., Ord. 1658 C.S., Ord. 2898-C.S., amended during 11-98 supplementation, and by Ord. 3130-C.S., and replaced by Ord. 3196-C.S.)

The control of excavation within the public right-of-way is essential to protect the public health, safety and welfare in its use of the public right-of-way. In so doing it is necessary to establish minimum requirements controlling such items as safety, workmanship and insurance responsibilities.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

For the purposes of this chapter, the following definitions apply:

(a) "Applicant" shall mean any owner, or contractor, who has submitted an application for a permit to excavate.

(b) "Chapter" shall mean this Chapter 2 of Title 7 of the Modesto Municipal Code.

(c) "City" shall mean the City of Modesto.

(d) "City street" shall mean any public highway, road, street, avenue, alley, lane, driveway, place, court or trail, which has been accepted, or is hereafter accepted, by the City Council into the City road system pursuant to Section 941 of the California Streets and Highways Code.

(e) "Crack" shall include any crack with a measurable opening in the pavement of one-fourth (¼) of an inch or more.

(f) "Department" shall mean the Public Works Department.

(g) "Director" shall mean the Public Works Director or his/her designee.

(h) "Excavation" shall mean any opening in the paved surface or subsurface of the public right-of-way in excess of four (4) square feet or four (4) feet long, whichever is smaller.

(i) "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, wells, and other appurtenances or tangible things that are located or are proposed to be located in the public right-of-way.

(j) "Major project" shall mean the installation or replacement of any underground facility other than a service.

(k) "Owner" shall mean any person, including any agency, department, or subdivision of the City, who owns, or maintains, any facility or facilities that are, or are proposed, to be installed or maintained in the public right-of-way.

(l) "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.

(m) "Person" shall mean one or more natural persons, any corporation, partnership, or other business or enterprise, or any governmental agency, department, or subdivision of the City, of the State of California, or United States of America.

(n) "Pothole" shall mean any excavation less than four (4) square feet of any depth necessary to locate a subsurface utility, facility or structure. The structure of a pothole shall be such that the vertical alignment of the sides of the excavation shall not exceed that of the surface cut.

(o) "Public right-of-way" shall mean the area across, along, beneath, in, on, over, under, upon, and within the City streets, as they now exist or hereafter will exist, including any associated public utility easements, and which are under the permitting jurisdiction of the Public Works Department.

(p) "Street cut" shall mean the action of or the result of opening, tearing up, excavating, repairing, installing, adding to, removing or otherwise altering any portion of any public roadway, street, alley or thoroughfare for any purpose whatsoever.

(q) "Structural overlay" shall mean any repaving, overlay, seal or reconstruction which constructs a new pavement surface of greater than one (1) inch thickness over the entire width of the street, excluding crack seals, and not including micropaving, Class 1 to 3 slurry seals, cape seals, and chip seals.

(r) "Surface irregularity" shall mean any hump or settlement such that the surface shall have no irregularity greater than three-eighths (⅜) of an inch in ten (10) feet in any direction.

(s) "Trench failure" shall mean any condition that causes surface irregularities, cracking, severe spalling or raveling of the patch area, surface buckling, upheaval, frac-outs and other failures resulting from trenchless excavation methods.

(t) "Trench influence area" shall mean an area four (4) feet adjacent to the trench where the excavation is greater than four (4) feet in depth, or an area two (2) feet adjacent to the trench where the excavation is four (4) feet or less in depth.

(Added by Ord. 3196-C.S., § 2, and Ord. 3366-C.S., § 2, effective 12-9-04)

It is unlawful for any person, other than the officers, agents, contractors or employees of the City, to make or cause to be made any street cut in the City without first having obtained a permit therefor as herein provided. Any permit issued hereunder shall not be assignable to any other person.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

Every application for a permit shall be made in writing upon forms furnished by the Director, and applications shall furnish thereon such information as is required by the Director.

On major projects, if requested to do so by the Director, applicants shall furnish plans and profiles, in duplicate, showing the work to be done, location, limits of work, location of pavements and replacement types, together with such further information as the Director may require.

If the street cut is to be made in a State Highway, applicant shall comply with all lawful regulations of the Department of Transportation, State of California (Caltrans), and procure from such Department all necessary permits required therefor by the State of California.

At the time of application the applicant shall either (1) provide the City with the utility cut location in a Computer Aided Drawing (CAD) file format (dxf or dwg) in California State Plane, Zone III coordinates, North American Datum 1983 (NAD83), or (2) pay an additional fee for City staff to enter this information into the City GIS system. This fee will be set from time to time by resolution of the City Council.

If the size and/or location of the utility cut is altered from the application information the applicant will provide within five (5) working days accurate "As Built" information to update the original. In all cases where trenchless excavation methods are utilized the applicant will provide a borepath plan prior to work and an "As Built" borepath with the invert information upon project completion.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

Permits required by this chapter shall be secured at least two (2) working days prior to the time the work under such permit is proposed; except, however, where an emergency street cut is to be performed, applicant shall immediately give prior notice thereof to the Police and Fire Departments of the City; shall secure or make a reasonable effort to secure the consent to such work from the Director as soon as reasonably practicable; and shall make application for a permit for such work on the next working day following.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

The validity of any permit issued shall be subject to permittee's compliance with all general provisions hereof, as well as any special provisions specified therein. All permits issued hereunder shall require that all underground facilities shall be of the quality and installed in a manner which may be prescribed or required by law. The issuance of a permit does not guarantee to permittee the exclusive use of any surface area occupied by permittee.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

Every permit issued pursuant to this chapter shall specify a completion date for the work. The Director may, for good cause, grant a written extension of time to permittee, which grant shall extend the validity of said permit to said extended time.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

The Director shall have the right to refuse a permit to any person who is in violation of, or who has failed to comply with the provisions of this chapter in connection with the permit being applied for, or any permit previously issued except as provided otherwise by this chapter.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

The Director may, for noncompliance with any of the provisions of this chapter, revoke any permit granted hereby.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

No person who has violated any provision of this chapter shall be issued an excavation permit, nor shall any contractor or agent apply for or be issued an excavation permit on such person's behalf, until the outstanding violation is corrected or a plan for correction is approved by the Director. The foregoing requirement shall not apply when the violation is being appealed pursuant to Title 1, Chapter 4 of this Code. The foregoing requirement is in addition to any penalty, as defined in Title 1, Chapter 2, of this Code, or remedy for violation that may be imposed or sought by the City at law or equity.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

Permittee shall give notice to the Director of the actual time of commencement of any work at least twenty-four (24) hours in advance. Similar notice shall be given to the Police Department and Fire Department if required on the permit. If the permittee is a utility company, the form and frequency of notifications on work to be performed shall be as agreed upon in writing by the Director and the utility company. When work on any project ceases for any reason for a period of twenty-four (24) hours or more, permittee shall notify the Director and the Police Department and Fire Department, when required, at least twenty-four (24) hours prior to recommencing such work. Work being performed on weekends and holidays, that requires inspection, shall be by special arrangement.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

All work shall be performed in a neat and workmanlike manner and so programmed as to cause a minimum of interference with traffic and inconvenience to the public. Such work shall be coordinated whenever possible with other projects in the area to the end that the public convenience is least impaired to the satisfaction of the Director.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

Permittee shall provide free and unobstructed access to all mailboxes, fire hydrants, water gates, valves, manholes, drainage structures and other public service structures and property that may be required for emergency use. Permittee shall not remove such public service facilities and property or relocate same without proper coordination with the authorities charged with control and maintenance of same.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

Temporary roadways, driveways, walks and rights-of-way for vehicles and pedestrians shall be constructed where required.

Temporary walkways shall be not less than four (4) feet in width and shall be designed for uniform live load of one hundred fifty (150) pounds per square foot. Suitable ramps or stairs shall be provided with a handrail not less than three (3) feet high along each side, or with a railing on one side and a fence on the other, as the case may require. Said walkway around said street cut shall be located as close to the area formerly used for pedestrian travel as possible. The permittee shall construct and maintain in good condition such detours, detour bridges and temporary crossings for public use as are deemed necessary for the proper execution of the work, and shall comply with the provisions and intent of the American Disabilities Act or when same are ordered by the Director.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

The Director may grant written permission to close or cause to be closed for limited periods City streets, or other areas not under control of the State of California, Department of Transportation if, in the opinion of the Director, the public interest can best be served thereby.

Permittee shall reimburse to City the cost for inspection in accordance with a Schedule of Fees approved by the Council from time to time by resolutions and on file in the offices of the City Clerk and Director.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

Permittee shall provide and maintain, during the performance of the work to ensure public safety, such fences, barricades, warning and directional signals, flares, lights, watchmen and flagmen as are or may be required by law or regulation or as may be deemed necessary by the Director.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

In the event permittee fails to provide for the safety of the public in a manner specified in Section 7-2.16, the Director may provide whatever facilities are necessary and charge permittee a fee for the work involved. The fee shall be in accordance with a schedule of fees approved by the City Council from time to time by resolution and on file in the offices of the City Clerk and the Director.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

Permittee shall obey and enforce all safety orders, rules and regulations of the Division of Industrial Safety of the State of California applicable to the work; and permittee shall comply with all applicable State and local laws, ordinances, codes and regulations.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

On the major number of barricades at any single project there shall be clearly labeled, in letters not less than two (2) inches high, the name of the permittee or his agent.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

If the work is unduly delayed by the permittee and if the public interests reasonably so demand, the Director shall have the authority, upon written notice to the permittee, to complete the work or any portion thereof or to cause said work to be completed. The actual cost of such work by the City or its contractors, plus an overhead charge as determined by the Finance Director, shall be charged to and paid for by the permittee.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

Backfill for both trench and pothole shall meet the requirements of the Modesto Standard Specifications.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

Except in the case of a major project, upon completion of the backfill, permittee shall notify the Director of such completion. Utility companies which are authorized by the Director to do their own paving are not required to give such notice.

The Director, upon receipt of such notice and upon inspection and approval of work, shall cause street cuts, not in the category of major projects, to be paved.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

On all projects other than major projects, street paving shall be performed by City and shall be paid for by permittee except that the Director may authorize both qualified licensed contractors, public utilities and private utilities to do their own street paving.

Said paving fees shall be in accordance with a schedule of fees approved by the Council from time to time by resolution and on file in the offices of the City Clerk and the Director.

Street paving fees shall be paid at the time the permit is issued.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

When major projects are involved, repaving of street cuts shall be done by the permittee in accordance with the Standard Specifications of the City of Modesto and in accordance with the terms indicated by the Director on the permit for such work.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

Curbs, gutters, sidewalks, sewers, drains, structures, conduits, cables and all other improvements damaged, disturbed, or removed during the progress of the work shall be restored or replaced to as good or better condition than existed prior to work performed by permittee in accordance with Standard Specifications of the City of Modesto and to the satisfaction of the Director.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

Any monument of concrete, iron, or other lasting material set for the purpose of locating or preserving the lines and/or elevation of any public street or right-of-way, property, subdivision, or a precise survey point or reference point shall not be removed or disturbed without first obtaining permission from the Director to do so. Replacement of removed or disturbed monumentation will be at the expense of the permittee.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

The Director shall determine all questions concerning which alternative methods and materials may be used by permittee, and the decision of the Director concerning the same shall be final.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

All work done by the permittee shall be inspected by the City and the permittee shall pay the City for such inspection. Said inspection fees shall be in accordance with a schedule of fees approved by the Council from time to time by resolution and on file in the offices of the City Clerk and the Director.

Inspection fees shall be paid at the time the permit is issued, except that utility companies may pay on a periodic basis as approved by the Finance Director.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

At the time any permit is issued, improvement plan approved, or work performed that causes an excavation of a paved City street, the applicant shall pay a trench restoration fee, in addition to the fee required by the encroachment permit or other administrative fees. The fee shall be in the amount set by resolution of the Council. A trench restoration fee shall not be required for the following excavations:

(a) In a City 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;

(b) In a City street where the pavement condition index (PCI), as defined by the City's Pavement Management System, is less than twenty-five (25) on the date the excavation permit is issued;

(c) In a City street where the Pavement Condition Index (PCI) has not been updated within the previous three (3) years;

(d) For potholing, where required by USA, or City of Modesto and/or Caltrans Horizontal Directional Drilling Specification, to verify utility depth or location;

(e) Where work will include resurfacing of all or a significant portion of the City street where the excavation is made provided that the Director approves the resurfacing;

(f) Made for a utility relocation required by the City to accommodate a proper governmental use of a City street;

(g) For owners possessing a valid pavement life performance warranty agreement with the City as set forth in Section 7-2.33;

(h) Horizontal Directional Drilling (HDD) excavations greater than eighteen (18) inches in depth of cover over the utility facility not requiring a significant surface incision greater than four (4) square feet and at a depth not greater than six (6) inches below the asphalt.

(i) With the approval of the Director, and where it would minimize neighborhood disruption, and where savings in street resurfacing costs through avoidance of future excavation are anticipated to exceed amounts that would otherwise be due from the Street Restoration Fee, some portion or all of the otherwise applicable fee may be waived for an excavation in which the applicant installs:

(1) Conduit for City use or control or;

(2) Conduit made available via approval and coordination with the City such that future excavation is permanently avoided. The City shall make any available space in such conduit available to subsequent applicants to avoid future excavations in the street. The City shall adopt orders or regulations prescribing circumstances under which in-kind payment of all or some portion of the fee shall be permitted, prescribing specifications for the conduit to be installed, and prescribing terms under which the conduit shall be made available to interested parties on a competitively neutral and non-discriminatory basis.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

All monies paid to the City pursuant to Section 7-2.29 shall be deposited in a special fund or funds and shall be expended only for the resurfacing, maintenance, administration, and protection of City streets where excavation has occurred after the effective date of adoption of the ordinance codified in this chapter.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

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 City street 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 City street.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

The City shall perform periodic pavement condition surveys of all City streets and determine the pavement condition index (PCI) rating for each street. A PCI rating shall be assigned to discrete blocks of a street and the fees calculated for each block. The PCI report shall be published on an annual basis and made available for public review at the permit counter.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

In lieu of paying a trench restoration fee pursuant to Section 7-2.29, an owner who has a valid franchise agreement with the City or is statutorily exempt from franchise requirements, including Modesto Irrigation District, and Turlock Irrigation District, may provide a written pavement life performance warranty in a form acceptable to City. 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, as a result of the owner's excavation, at any time during the useful life of the street, the owner who performed the trench cut shall repair or restore such condition pursuant to the procedure set forth in Section 7-2.34. In the event that an owner who has a valid franchise agreement with the City or is statutorily exempt from franchise requirement fails or refuses to provide a written pavement life performance warranty such owner shall pay the trench restoration fee set forth in Section 7-2.29.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

After completion of the work, the permittee shall exercise reasonable care in inspecting for and immediately repairing and making good any injury or damage to the street resulting from defective work done under the permit. If the subsurface material or pavement becomes depressed or fails at any time (1) within one (1) year after the excavation has been completed and accepted and before resurfacing of the City street, where the owner has paid a trench restoration fee pursuant to Section 7-2.29, or (2) at any time during the useful life of the street where the owner has provided a pavement life performance warranty pursuant to Section 7-2.33, the City shall inspect the depressed or broken area to ascertain the cause of the failure. If, after inspection by the city, it is determined that the failure is due to the owner's excavation, the owner 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. Additional inspection permit fees may be imposed as appropriate. A trench restoration fee shall not be charged for work performed under this section. If the pavement is not restored as specified by the Director, unless delayed by conditions beyond the owner's control, the Director may cause the work to be done after giving the owner forty-eight (48) hours final notice. The cost thereof, including any inspection costs and administrative overhead incurred by the City, shall be assessed against the owner. The owner shall remain responsible for any future repairs of that portion of pavement over the excavation that was repaired by the City for a period of one (1) year, where the owner has paid a trench restoration fee pursuant to Section 7-2.29, or in accordance with the pavement life performance warranty pursuant to Section 7-2.33.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

Publicly bid City plans, and field changes that alter the square footage of the trench surface area issued by the Director to any owner 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 shall be subject to all fees and requirements of this chapter. The owner shall report the amount of excavation to the permit counter and pay the required fees. Utilities providing lifetime warranties as specified in Section 7-2.33 are exempt from these fees. Failure to report the excavation and pay the required fees shall be considered a permit violation pursuant to Section 7-2.10.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

Any owner installing facilities providing water, sewer, stormwater drainage, gas, electric, communication, video or other utility services in City streets shall participate in City of Modesto Utility Coordination Committee and prepare a utility master plan, in a format specified by the Utility Coordination Committee, that shows all of the owner's planned major utility work in City streets for the coming year. Prior to applying for an excavation permit, any owner planning to excavate in City streets shall coordinate, to the extent practicable, with other owners to minimize damage to, and avoid undue disruption and interference with, the public use of City streets. The City shall provide the utilities with its street reconstruction and repaving schedule so that the utilities can coordinate their work with the City's schedule.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

Excavation in newly renovated City streets is prohibited for three (3) years after filing of a notice of completion or acceptance of a new street or structural overlay of an entire street except as follows:

(a) Emergency which endangers life or property;

(b) Repair or modification to prevent denial or interruption of utility service;

(c) Relocation work that is mandated by City, State or Federal legislation;

(d) Service for buildings where no other reasonable means of providing service exists, as determined by the Director;

(e) In a City 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 and the work takes place prior to the resurfacing;

(f) For potholing to verify utility depth or location;

(g) Horizontal Directional Drilling (HDD) excavations greater than eighteen (18) inches in depth of cover over the utility facility not requiring a significant surface incision greater than four (4) square feet and at a depth not greater than six (6) inches below the asphalt may be allowed at the discretion of the Director;

(h) Other situations deemed by the Director to be in the best interest of the general public.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01

Whenever applicants propose major work in the same block, the Department shall condition permits for such work in a manner that maximizes coordination and minimizes the total period of construction. Such work may be conditioned to require the applicants to participate in a single excavation and pay their pro rata share of the trench restoration fees. In lieu of this requirement, a single utility, who qualifies for a pavement life performance warranty, may provide such warranty. Applicants may seek a waiver of the joint excavation requirements with respect to a particular excavation. Within thirty (30) calendar days of receipt of a written request for a waiver, the Director shall render a decision upon such a request, taking into account the impact of the proposed excavation on the neighborhood, the applicant's need to provide services to a property or area, facilitating the deployment of new technology as directed pursuant to official City policy, and the public health, safety, welfare, and convenience.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

Pavement life warranty agreements are not transferable or assignable.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

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

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

Permittee shall be responsible for any and all claims and liabilities for damages caused by any of the work herein permitted or caused by permittee's failure to perform his or her obligations under the permit. In the event any such claim or liability for damages is made against or imposed upon the City or any department, officer, or employee thereof, permittee shall and by acceptance of the permit agrees to defend, indemnify, and hold each of them harmless from such claim or liability. Each permittee shall provide the Finance Director with evidence of insurance coverage in the amount and form as approved by the City's Risk Manager. Such amounts shall be set forth from time to time by resolution of the City Council.

(Added by Ord. 3196-C.S., § 2, amended by Ord. 3420-C.S., § 1, effective 10-5-06)

If it has been finally determined that the permittee has failed to comply with the provisions hereof or the conditions of any permit, the Director may refuse to grant and may withhold issuance of any subsequent permits to permittee until the latter has paid all costs due City for prior permits and has posted with the City a cash bond in the sum of five thousand dollars ($5,000.00), which bond or any part thereof shall be used as follows:

(a) To pay the actual cost of work completed by the Director in connection with any permit issued, including overhead costs;

(b) To pay the actual cost of work done by the Director to repair or restore any public improvements damaged or destroyed by permittee during the course of any operations performed under any permit, including overhead costs;

(c) To pay the actual cost of all lighted barricades placed on or about the permittee's work, including overhead costs, and the costs of the furnishing by City of any other safety barricades or warnings in connection with any permit issued.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)

Permittee shall be entitled to refund in whole or in part, as the case may be, of any cash bond posted with the City pursuant hereto when all work to be done by permittee under a permit issued prior or subsequent to posting of said bond has been completed by permittee and has been approved or completed by City, from which bond shall be first deducted all amounts due City under the terms of said bond and all amounts which may otherwise be due City pursuant to the provisions of this chapter.

(Added by Ord. 3196-C.S., § 2, effective 2-1-01)