Town of New Castle, NY Article I Openings

[Adopted 11-25-1952; amended in its entirety 3-31-2020 by L.L. No. 5-2020[1]]

[1] Editor's Note: This local law also changed the title of this article from "Street Excavations" to "Openings."

§ 111-1 Permit required; applications; fees.

A. No person shall open or cause to be opened the surface pavement or soil in any portion of the public right-of-way, public easement, park or other public place for any purpose whatever without first making a written application, on a form provided by the town, to the Superintendent of Highways and obtaining a street opening permit. Prior to the issuance of a street opening permit, the permittee shall pay the administrative fees and deposits set forth by resolution of the Town Board in the Master Fee Schedule, which may be amended.

B. No deposits shall be required if a bond is filed in accordance with § 111-10 relating to public service corporations, however all public service corporations must submit the required administrative fees set forth by resolution of the Town Board in the Master Fee Schedule.

C. The unexpended balance of any such deposit shall be refunded to the depositor one year after the completion of the work and the filling in of said opening to the satisfaction of the Town Superintendent of Highways, except in connection with lump-sum amounts fixed by the Superintendent of Highways and accepted and paid by the applicant for doing said work or any part thereof by the Superintendent of Highways for account of the Town, in which case there shall be no refund.

§ 111-2 Superintendent of Highways.

Nothing herein contained shall be construed to affect the position of Superintendent of Highways, which position exists by virtue of state law, it being the intention of the Town Board that the position of Superintendent of Highways and Commissioner of Public Works are compatible and shall be held simultaneously by the same individual.

§ 111-3 Permit required for obstruction of streets.

No person shall obstruct a highway or street in such a manner as to close the same without obtaining a written permit from the Chief of Police and the Superintendent of Highways, satisfying the provisions of the Vehicle and Traffic Law and the Highway Law.

§ 111-4 Responsibility for repairs and restoration.

In the case of openings for sewers, drains, water, gas, telephone or other public utility purposes, the permittee is responsible for the temporary repair of the opening within the public right-of-way, public easement, park or other public place. In such case, the Superintendent of Highways, in his or her discretion, at the time of issuing the permit, may authorize the permittee to do all the work required for permanent restoration of any opening within said public right-of-way, public easement, park or other public place. In the event that the Superintendent of Highways does not authorize the permittee to do any of the work required for the permanent restoration of the opening within the public right-of-way, public easement, park or other public place, the regular fees fixed by resolution of the Town Board for this purpose shall apply.

§ 111-5 Superintendent of Highways to supervise work.

All work shall be under the supervision of the Superintendent of Highways and must be performed to his satisfaction and specifications.

§ 111-6 Multiple neighboring openings.

In cases where two or more neighboring openings are made at one time, the Superintendent of Highways may allow the same under one permit, charging therefor only one fee for issuing the permit but separate fees for the repairs and inspections. In no case shall permits be granted to anyone, other than a public service corporation, for more than five openings to be made simultaneously.

§ 111-7 Safeguarding excavations performed in any Town, county or state highway right-of-way required.

A. Any firm, individual, corporation or other entity performing any construction, repair, maintenance or alteration in any Town, county or state highway right-of-way shall erect and maintain suitable barricades and fences around all of his or its work while excavation or other work is in progress, shall keep openings plainly lighted between sundown and sunrise and shall arrange his or its work in such a manner as to cause a minimum of inconvenience and delay to vehicular and pedestrian traffic.

B. Whenever the free flow of traffic is to be interrupted or interfered with, the Superintendent of Highways may request uniformed police officers from the New Castle Police Department to provide a manned marked police vehicle to expedite traffic and enhance the safety of road workers and motorists, with the cost thereof being reimbursed by the firm, individual, corporation or other entity performing the work. Such request shall be subject to the review and approval of the Chief of Police. The Superintendent of Highways shall require the firm, individual, corporation or other entity to designate competent persons to direct and expedite traffic by means of lights or flags to minimize inconvenience, hazard and delay to any and all traffic.

§ 111-8 Replacement of concrete slabs.

Whenever a concrete slab is cut or broken, the area to be replaced shall include a full slab.

§ 111-9 Replacement of curbing.

Any curbing removed by any person shall be reset or replaced. Any person failing to restore curbing to its original condition shall be required to pay an additional fee as fixed by resolution of the Town Board. Any person constructing a new or substantially improved home may be required to install, replace or reset granite curbing along the edge of pavement adjacent to the entire property, as directed by the Superintendent of Highways.

§ 111-10 Insurance and indemnification.

A. No permit for an operation under this chapter shall be issued by the Superintendent of Highways until the permittee therefor shall have first placed on file with Town Superintendent of Highways, satisfactory evidence of the following types of coverage and limits of liability:

(1) Commercial general liability (CGL) coverage with limits of insurance of not less than $1,000,000 each occurrence and $2,000,000 annual aggregate.

(a) If the CGL coverage contains a general aggregate limit, such general aggregate shall apply separately to each project.

(b) The Town of New Castle and its agents, officers, volunteers, directors and employees shall be named as additional insureds and included in a waiver of subrogation endorsement.

(c) The permittee and/or contractor shall maintain CGL coverage for itself and all additional insureds for the duration of the project and maintain completed operations coverage for itself and each additional insured for at least two years after completion of the work.

(d) The permittee and/or contractor's policy must be primary and noncontributory to any insurance the Town of New Castle maintains.

(2) Automobile liability: business auto liability with limits of at least $1,000,000 combined single limit each accident.

(a) Business auto coverage must include coverage for liability arising out of all owned, leased, hired and nonowned automobiles.

(b) The Town of New Castle and its agents, officers, volunteers, directors and employees shall be named as additional insureds on the automobile policy and included in a waiver of subrogation endorsement.

(c) The permittee and/or contractor's policy must be primary and non-contributory to any insurance the Town of New Castle maintains.

(3) Workers' compensation and employer's liability: employers' liability insurance limits per statutory requirements.

(a) The Town of New Castle and its agents, officers, volunteers, directors and employees shall be included in a waiver of subrogation endorsement.

(b) The permittee and/or contractor's policy must be primary and non-contributory to any insurance the Town of New Castle maintains.

(4) Umbrella liability coverage with limits not less than $1,000,000 each occurrence and $1,000,000 annual aggregate.

(a) The Town of New Castle and its agents, officers, volunteers, directors and employees shall be named as additional insureds and included in a waiver of subrogation endorsement.

(b) The permittee and/or contractor shall maintain umbrella liability coverage for itself and all additional insureds for the duration of the project and maintain completed operations coverage for itself and each additional insured for at least two years after completion of the work.

(c) The permittee and/or contractor's policy must be primary and non-contributory to any insurance the Town of New Castle maintains.

(5) The permittee and/or contractor shall not sublet any part of its work without assuming full responsibility for requiring similar insurance from its subcontractors and shall submit satisfactory evidence to that effect to the Town of New Castle. Each such insurance policy, except the workers' compensation policy, shall name the Town of New Castle and its agents, officers, directors and employees as an additional insured.

(6) Certificates shall provide that 30 days' written notice prior to cancellation be given to the Town of New Castle. Policies that lapse and/or expire during the term of occupancy shall be recertified and received by the Town of New Castle no fewer than 30 days prior to cancellation or renewal.

(7) Such insurance hereinabove referred to shall remain in force throughout the effective period of the permit and/or any authorized extension or extensions thereof and shall carry an endorsement to the effect that the insurance company will give at least 10 days' prior written notice to the Town of New Castle of any modification or cancellation of any such insurance and shall contain a clause to the effect that termination of said insurance shall be without prejudice to the right of the Town of New Castle to make claim or claims thereafter for any loss or damage sustained as a result of any act or acts committed or omitted during the term of said insurance.

B. Indemnification and hold harmless.

(1) To the fullest extent permitted by law, the permittee and/or contractor will indemnify and hold harmless the Town of New Castle, its officers, representatives, agents and employees from and against any and all claims, suits, liens, judgments, damages, losses and expenses, including reasonable legal fees and all court costs and liability (including statutory liability) arising in whole or in part and in any manner from injury and/or death of a person or damage to or loss of any property resulting from the acts, omissions, breach or default of the permittee and/or contractor, its officers, directors, agents, employees and subcontractors, in connection with the performance of any work by or for the permittee and/or contactor pursuant to any contract, purchase order and/or related proceed order. The permittee and/or contractor will defend and bear all costs of defending any actions or proceedings brought against the Town of New Castle, its officers, representatives, agents and employees, arising in any employee of the permittee and/or contractor and shall not be limited in any way by an amount or type of damage, compensations, or benefits payable under any applicable workers' compensation, disability benefits or other similar employees' benefit act.

(2) The permittee and/or contractor shall expressly permit the Town of New Castle to pursue and assert claims against the permittee and/or contractor for indemnity, contribution and common law negligence arising out of claims for damages for death and personal injury.

C. Public-service corporations may, at their option, file a bond with sufficient sureties to be approved by the Town Attorney in the amount of $10,000, conditioned upon saving harmless the Town of New Castle, its officers, servants and agents from loss in connection with such matter.

§ 111-10.1 Requirements.

The person to whom the permit is issued shall see that the requirements contained in this article are observed.

A. Any excavation, other than for paving, located within the tolerance zone of any buried facility within the right-of-way shall be made by hand and not by power-driven equipment required by New York State Code Rules 753 (Dig Safely New York), unless by special permission of the Superintendent of Highways.

B. All excavations shall be by open cut, unless by special permission of the Superintendent of Highways.

C. All trenches shall be backfilled using 50 psi K-Crete or NYSDOT Item #4, as determined by the Superintendent of Highways, in the traveled way or under sidewalks; trenches outside the traveled way shall be backfilled with NYSDOT Item #4 or with soil tamped in layers not exceeding six inches in depth. The material shall be placed in six-inch layers and compacted before the next layer is placed.

D. Between November 15 and April 15, all roadway openings which require plates, shall have the plates recessed into the pavement and properly pinned to secure against movement and any noise disturbance. Between April 16 and November 14, plates shall be properly ramped and pinned, but such plates are not required to be recessed, provided that the length of trench plated does not exceed 200 feet and that the plates will not be there for more than one week. Any plate that is in place for more than one week must be recessed.

E. All work done under any permit issued hereunder, whether directly by the permittee or by others to whom the work is contracted, shall conform to the requirements of the Superintendent of Highways and shall be under full supervision of the permittee, who shall be solely responsible for the work done.

F. The Town of New Castle reserves the right to hire a third-party inspection service/inspector to oversee the temporary and/or permanent restoration of any work performed in the public right-of-way, public easement, park or other public place. All fees associated with this service shall be paid by the permittee prior to the issuance of any permit by the Superintendent of Highways.

G. At the request of the Superintendent of Highways, the permittee must supply a detailed maintenance and protection of traffic (MPT) plan, as per New York State Department of Transportation standards, showing the area of proposed work, all signage to be installed, detour routes, location of traffic control personnel, proposed lane closures, or any other requirement specified by the Superintendent of Highways. The use of New Castle Police Department personnel may be required for additional traffic control. The expense for such personnel usage shall be paid by the permittee. After the Superintendent of Highways approves the MPT plan, the permittee must submit the approved MPT plan to all Town emergency service departments and agencies.

§ 111-10.2 Temporary repairs.

The permittee is responsible for the temporary repair of the trench. Temporary trench repair is to consist of two inches of asphalt or cold patch concrete placed on top of the K-Crete or NYSDOT Item #4 backfill and level with the existing road surface.

§ 111-10.3 Time limit for work; closing trench for noncompliance.

The Superintendent of Highways may prescribe the time when the work shall be done and the length of time that any trench or other excavation may remain open. He may cause any such trench or opening to be filled up or closed at the expense of the person to whom the permit is issued in case of noncompliance with the terms of such permit or other conditions prescribed at any time by the Superintendent of Highways.

§ 111-10.4 Permanent trench repair.

Temporary trenches shall be widened a minimum of one foot beyond the original cut or any crack developed from the adjacent pavement settling because of the excavation. Asphalt thickness and materials shall conform to the standard construction details maintained by the Superintendent of Highways. All final pavement restoration limits shall follow the guidelines depicted in the minimum pavement restoration limits diagram as adopted by the Town Board, and amended from time to time. The minimum pavement restoration limits diagram shall be maintained by the Superintendent of Highways. The edges of all trenches shall receive a liberal application of asphaltic emulsion to seal edges.

§ 111-10.5 Provisions to supplement Highway Law.

This article shall not be construed to conflict with any of the provisions of § 149 of the Highway Law but is designed to supplement the same, and the action of the Town Board in adopting this article shall constitute the consent required by said section.

§ 111-10.6 Authority to stop work.

The Superintendent of Highways or any Town police officer are authorized to issue a stop-work order relating to a street opening, if in his/her judgment the work poses an immediate threat to the public health, safety and welfare. The permittee shall be provided written notice of such stop-work order as soon as reasonably practicable but no later than three days after issuance of the same, which notice shall be delivered personally or by certified mail and addressed to the permittee's address as shown on the street opening permit. Immediately upon the receipt of a stop-work order, the permittee and anyone acting on the permittee's behalf shall cease all work being undertaken pursuant to the street opening permit. Such order shall also include a directive that the area of the work be made safe forthwith to the satisfaction of the Superintendent of Highways. The stop-work order shall be in effect until the Town confirms that the land development activity is in compliance and the violation has been satisfactorily addressed. Failure to address a stop-work order in a timely manner may result in civil, criminal, or monetary penalties in accordance with the enforcement measures authorized in this chapter.

§ 111-10.7 Revocation of permit.

The Superintendent of Highways shall have the power to revoke a street opening permit issued hereunder whenever it shall find that the permittee has refused, failed or omitted to comply with any provisions of this article.

§ 111-10.8 Emergencies.

If it becomes necessary in case of an emergency or any unforeseen happening to enter upon a Town road for the purpose of making emergency repairs to any sewer, water pipe, conduit or other underground or overhead structure, any person, firm, corporation, public utility or municipal subdivision may do so forthwith, provided that within 72 hours of the time of making such opening (weekends, holidays, and holiday weekends excluded), proper application for a permit is made there for.

§ 111-10.9 Penalties for offenses.

Any person committing an offense against the provisions of this article shall be guilty of a violation punishable by a fine not exceeding $250 or by imprisonment for a term not exceeding 15 days, or by both such fine and imprisonment. The continuation of an offense against the provisions of this article shall constitute, for each day the offense is continued, a separate and distinct offense hereunder.

§ 111-10.10 Repairs: time of completion; materials.

All repairs must be completed within 15 days of the date of the start of the work. If repairs cannot match existing area pavement, a substitute pavement patch material, approved by the Superintendent of the Highway Department, may be used until like and/or approved material is available.