Turlock Municipal Code Art. 2 Excavations

The City shall, for purposes of maintaining the structural integrity of City streets, curbs, gutters, and sidewalks, their appearance, and to ensure a more positive driving experience for motorists, bicyclists, and pedestrians, set forth regulations regarding excavation and trenching within the City's right-of-way. These regulations shall establish a moratorium on excavation and trenching in newly paved City streets, establish a fee for repairing streets, curbs, gutters, and sidewalks damaged by excavation and trench cuts, and State exemptions to this article.

(Ord. 1205-CS, Added, 03/12/2015)

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

"Applicant"

shall mean any persons, corporation, partnership, association of any type, public agency or any other legal entity that submits an application to the City Engineer for a permit pursuant to this chapter.

"Article"

shall mean Turlock Municipal Code Title 7, Chapter 4, Article 2.

"City"

shall mean the City of Turlock, California.

"Excavation"

shall mean the portion of right-of-way disturbed by an excavation equal to or greater than eighteen (18") inches in depth.

"Facility" or "facilities"

shall mean any and all cables, cabinets, ducts, conduits, converters, equipment, drains, hand holes, manholes, pipes, pipelines, splice boxes, surface location markers, tunnels, utilities, vaults, wells, and other similar devices that are located, or are proposed to be located, in the public right-of-way.

"Owner"

shall mean any person or firm, including any department or division of the City, who owns any facility or facilities that are, or are proposed to be, installed or maintained in the public right-of-way.

"PCI"

shall be the Pavement Condition Index, which is a numerical value from one (1) to one hundred (100) that indicates the condition of the roadway, with one (1) as the worst possible value and one hundred (100) as the best possible value.

"Resurfacing" or "resurfaced"

shall mean any paving, repaving, overlay, seal or reconstruction of a street, or portion of a street, that resulted in a new pavement surface of greater than one (1") inch thickness over the entire width of the street, excluding crack seals, within three (3) years of the proposed date of excavation. This definition shall not include micropaving, slurry seals, cape seals, or chip seals.

"Right-of-way"

shall mean the paved area across, beneath, in, on, over, under, upon, and within the City streets, curbs, gutters, sidewalks, and other transportation facilities, as they now exist or hereafter will exist and which are, or will be, under the permitting jurisdiction of the City.

"Sidewalk"

shall mean and include any concrete curb, gutter, or sidewalk which has been constructed and accepted by the City.

"Street"

shall mean any public highway, road, street, boulevard, avenue, alley, lane, drive, way, place, court or trail, or other public right-of-way which has been constructed and accepted by the City.

"Trench"

shall mean the portion of right-of-way disturbed by an excavation equal to or greater than eighteen (18") inches in depth.

"Trench influence area"

shall mean the trench and an area three (3') feet adjacent, in each direction, to the trench where excavation occurs within a vehicular travel lane, or one and one-half (1-1/2') feet adjacent, in each direction, to the trench where excavation occurs outside of a vehicular travel lane, such as a shoulder, or the distance to the nearest expansion joint, weakened plane joint, or score mark in either direction from the trench where the excavation occurs within a portion of curb, gutter, or sidewalk.

"Trench restoration fee"

shall mean a fee, as listed in a fee schedule established by resolution of the City Council, for use by the City in the repair of sections of street, curb, gutter, and sidewalk that have been damaged due to excavations. This fee, when applying to sections of street, shall be calculated based on the Pavement Condition Index and functional classification of the roadway of the proposed excavation location.

(Ord. 1205-CS, Added, 03/12/2015)

Prior to the issuance of an encroachment permit, where the approved scope of work includes excavation or trenching of a paved City street or sidewalk, the applicant or owner shall pay a trench restoration fee as defined by TMC 7-4-202. This fee shall be in addition to any other fees required by the encroachment permit.

A trench restoration fee shall not be required under the following exceptions:

(a) In a City street that the City has scheduled for resurfacing within six (6) months of the specified date of excavation;

(b) In a City street where the PCI, as defined by the City's pavement management system, is less than twenty-five (25) on the date the encroachment permit is issued;

(c) Work performed by City staff under direction of the City;

(d) Work that will include the applicant resurfacing all of a City street or a significant portion of the City street, as determined by the City Engineer, where the excavation is made; provided, that the City Engineer approves the resurfacing;

(e) Work related to a utility relocation required by the City to accommodate a proper governmental use of a City street;

(f) Applicants or owners possessing a valid pavement life performance warranty agreement with the City;

(g) When the City Engineer determines that the unique circumstances of the proposed work warrant the waiving of the specified fee in keeping with the intent of this article.

(Ord. 1205-CS, Added, 03/12/2015)

All monies paid to the City pursuant to this article, to include fees and penalties, shall be deposited in a special fund or funds and shall be expended only for the resurfacing, maintenance, administration, and protection of City streets and sidewalks where excavation or trenching has occurred after the effective date of the ordinance codified in this article.

(Ord. 1205-CS, Added, 03/12/2015)

No fee or requirement authorized or imposed pursuant to this article 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.

(Ord. 1205-CS, Added, 03/12/2015)

No person, applicant, or owner who has an outstanding violation regarding any provision of this article shall be issued an encroachment permit, nor shall any contractor or agent apply for or be issued an encroachment permit on such person's behalf, until the outstanding violation is corrected or a plan for correction is approved by the City Engineer. The foregoing requirement is in addition to any penalty or remedy for a violation that may be imposed or sought by the City.

(Ord. 1205-CS, Added, 03/12/2015)

In lieu of paying a trench restoration fee, an applicant or owner who has a valid franchise agreement with the City or is statutorily exempt from franchise requirements or is a contractor licensed by the State of California and hired by an owner or applicant may provide a written pavement and concrete life performance warranty agreement, hereinafter referred to as a warranty agreement, in a form acceptable to the City. The warranty agreement shall provide that in the event that subsurface material or pavement or concrete over or within the trench influence area becomes depressed, broken, or otherwise fails at any time after the excavation has been completed that the applicant or owner who performed the excavation, either directly or through a subcontractor, shall repair or restore such condition pursuant to the procedure set forth in TMC 7-4-208.

This warranty agreement shall not apply to trench influence areas within a section of street that has been fully reconstructed after the street trench or excavation occurred, but shall apply to all other trench influence areas, including trench influence areas where an overlay or maintenance treatment has been applied after the street trench or excavation occurred.

In the event that an applicant or owner that is otherwise eligible to execute a warranty agreement fails or refuses to provide a warranty agreement as provided in this section, such owner shall pay the trench restoration fee set forth in TMC 7-4-203.

The City may terminate a warranty agreement if the applicant or owner fails to, on at least three (3) occasions within a twelve (12) month period, respond to notifications by the City Engineer to repair depressed, broken, or failing surface or subsurface conditions within the pavement influence area of a previous excavation or trench cut. The City shall notify the applicant or owner of such termination in writing within thirty (30) days of the decision to terminate by the City Engineer.

(Ord. 1205-CS, Added, 03/12/2015)

If the subsurface material or pavement or concrete over or within the trench or trench influence area becomes depressed or broken at any time within one (1) year after: (a) the excavation has been completed and accepted by the City, where the applicant or owner has paid a trench restoration fee pursuant to this article, or (b) at any time prior to such time as the street surface is completely resurfaced with a structural overlay, where the applicant or owner has provided a warranty agreement pursuant to this article, the applicant or owner shall, upon written notice from the City Engineer, immediately inspect the depressed or broken area to ascertain the cause of the failure. The applicant or owner shall make repairs to the installation or backfill and have the pavement or concrete restored in the manner and within the time period specified by the City Engineer. 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 or concrete is not restored as specified by the City Engineer, unless delayed by conditions beyond the applicant's or owner's control, the City Engineer may cause the work to be done after giving the applicant or owner seventy-two (72) hours' notice. The cost thereof, including any inspection costs and administrative overhead incurred by the City, shall be assessed against the applicant or owner. The applicant or 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 applicant or owner has paid a trench restoration fee pursuant to this article or where the applicant or owner has provided a warranty agreement pursuant to this article.

(Ord. 1205-CS, Added, 03/12/2015)

Any applicant or owner planning to excavate in City streets or sidewalks shall coordinate, to the extent possible, with other public utility owners and the City, to minimize damage and avoid undue disruption and interference to the public use of City streets and sidewalks.

(Ord. 1205-CS, Added, 03/12/2015)

Excavation or trenching in newly paved City streets is prohibited for three (3) years after the filing of a notice of completion or acceptance of a new street or resurfacing of an existing City street, except as follows:

(a) Emergency which endangers life or property;

(b) Relocation work that is mandated by a court of competent jurisdiction or by City, County, State or Federal legislation;

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

(d) Other situations as determined by the City Engineer to be in the best interest of the general public;

(e) For a period of time until twelve (12) months has elapsed from the date written notification from the City was received by the owner of the planned resurfacing project in accordance with TMC 7-4-214.

(Ord. 1205-CS, Added, 03/12/2015)

Whenever applicants propose major excavation work along the same City block, the City Engineer may 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 work. 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 City Engineer 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, and the health, safety, welfare, and convenience of the public.

(Ord. 1205-CS, Added, 03/12/2015)

Pavement and concrete life performance warranty agreements are not transferable or assignable.

(Ord. 1205-CS, Added, 03/12/2015)

Nothing in this article shall reduce or affect the responsibility of the applicant, owner or contractor to follow work zone safety guidelines that meet or exceed the traffic safety provisions of the Standard Plans and Specifications of the City of Turlock when conducting work within the City's right-of-way.

(Ord. 1205-CS, Added, 03/12/2015)

The City shall notify, in writing, all public utility owners with facilities located within the City of Turlock and all owners of real property adjacent to resurfacing project areas of all scheduled resurfacing projects prior to construction. The City shall endeavor to provide at least twelve (12) months' notice prior to the beginning of construction for each planned project. This notification shall include the limits and scope of work to be performed, an approximate start date for construction, and contact information for coordinating excavation work with the City.

In the event the City fails to provide an owner written notification of a resurfacing project within a twelve (12) month period prior to the start of construction, an applicant or owner shall be exempt from the provisions of TMC 7-4-210 and shall be allowed to perform excavations, until such a time that twelve (12) months have elapsed since the owner received such notification, at which point this exemption would cease to apply. However, all owners and applicants shall still be required to obtain the applicable permits and pay the applicable fees, unless a warranty agreement has been executed with the City in which case trench restoration fees shall not be charged.

(Ord. 1205-CS, Added, 03/12/2015)

The penalty for an excavation within a City street subject to a moratorium, in violation of TMC 7-4-210, shall be an amount equal to three times the trench restoration fee identified by resolution of the City Council as necessary to make the repairs as specified in this article. This penalty shall be assessed against the person or persons responsible for the excavation in violation of TMC 7-4-210, regardless of their ownership status of the facility within the trench influence area and regardless of whether the person, persons or owner have an executed warranty agreement with the City.

(Ord. 1205-CS, Added, 03/12/2015)

A person directly and adversely affected by a decision made by the City Engineer pursuant to the provisions of this article may appeal the City Engineer's decision by filing a written notice of appeal with the City Manager no later than ten (10) working days after receiving notice of the City Engineer'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 Manager's decision may affirm, reverse or modify the decision appealed. A copy of the City Manager's decision shall be provided in writing to the person appealing at the address shown on the notice of appeal. The decision of the City Manager is final and no additional appeals are permitted.

(Ord. 1205-CS, Added, 03/12/2015)

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

(Ord. 1205-CS, Added, 03/12/2015)