Questions about eCode360? Municipal users Join us daily between 12pm and 1pm EDT to get answers and other tips!
Borough of Lewistown, PA
Mifflin County
By using eCode360 you agree to be legally bound by the Terms of Use. If you do not agree to the Terms of Use, please do not use eCode360.
Table of Contents
Table of Contents
[Adopted 9-22-1986 by Ord. No. 86-4 (Ch. 21, Part 1, of the 1986 Code); amended in its entirety 2-10-2014 by Ord. No. 2014-3]
This article shall be known and may be cited as the "Borough Street Excavation Ordinance."
A. 
Pursuant to the authority granted Council by the Borough Code,[1] Council hereby adopts by reference for use in the Borough of Lewistown the Street Excavation Regulations and Specifications prepared by the Borough staff of the Borough of Lewistown and adopted from time to time by resolution of Borough Council.
[1]
Editor's Note: See 8 Pa.C.S.A. § 101 et seq.
B. 
Three copies of the Street Excavation Regulations and Specifications referred to in Subsection A have been filed in the office of the Building Codes, Property Codes and Zoning Code Department of the Borough. This office is located in the Lewistown Municipal Building. The copies may be examined at the office of the Department Monday through Friday, except holidays, during the hours from 9:00 a.m. to 12:00 noon and 1:00 p.m. to 4:00 p.m.
A. 
When not inconsistent with the context of this article or the Street Excavation Regulations and Specifications referred to in § 212-2, words and terms used in the present tense include the future tense; words and terms used in the plural number include the singular number and the converse; and the masculine gender includes the feminine gender and the neuter gender.
B. 
Where the term "base cost to the Borough of the work," or a term of similar import, is used in this article, the term shall mean:
(1) 
If the work is done by the Borough, the actual cost to the Borough of the equipment, materials and labor involved in the work done by the Borough plus 33 1/3% to cover the Borough's costs of overhead and costs of future inspections.
(2) 
If the work is done for the Borough by an independent contractor retained by the Borough, the contract price paid by the Borough to the contractor plus 25% to cover the Borough's costs of overhead and costs of future inspections.
C. 
Where a word or term is not defined by Subsection D below or by another section in this article, and is not defined by the Street Excavation Regulations and Specifications referred to in § 212-2, the word or term shall have attributed to it its ordinarily accepted meaning or such as the context may require or imply.
D. 
Unless otherwise expressly stated, or unless the context clearly requires a different meaning, the following words and terms, when used in this article, shall have the meanings next ascribed to them.
BOROUGH STREET
The area located between the curbs of a street or alley which has been taken over by the Borough and incorporated into the Borough street system or Borough alley system; or in the case of a street or alley which has been taken over by the Borough and incorporated into the Borough street system or Borough alley system, but which has no curbs, the area located between the right-of-way lines of the street or alley.
PERMITTEE
The person in whose name a street excavation permit was issued under this article.
PERSON
Any individual, partnership, firm, association, organization, corporation, government agency, municipal authority, or other entity.
A. 
When a street excavation permit is required. Except as provided in § 212-9A, before any person shall open or excavate any Borough street, he/she shall first obtain a street excavation permit from the Borough Manager.
B. 
Form of application for permit. The application for a street excavation permit shall be in such form, require the disclosure of such information, and be accompanied by such work plans and drawings as the Borough Manager may from time to time prescribe. In all cases, however, the application shall clearly disclose the exact location, nature and purpose of the proposed street opening or excavation and the area and depth thereof and shall contain an agreement by the applicant that the street opening or excavation, and the backfilling and closing thereof, shall be done in accordance with the provision of this article and the provisions of the Street Excavation Regulations and Specifications.
C. 
Amendments to an application or a permit.
(1) 
An amendment to an application for a street excavation permit or the accompanying plans or drawings, or an application for an amendment to a street excavation permit, shall be filed with the Borough Manager promptly after the applicant or the permittee becomes aware that an amendment is necessary.
(2) 
No change in the street opening or excavation for which a street excavation permit was issued shall be undertaken until an application for an amendment to the permit has been filed with the Borough Manager and approved by the Borough Manager.
D. 
Review of application for permit; disapproval of application or approval of application and issuance of permit.
(1) 
Within five business days after the date on which an application for a street excavation permit was filed with the Borough Manager, the Borough Manager shall review the application and all accompanying plans and drawings which are part of the application and either approve or disapprove the application.
(2) 
In the case where an application shows or suggests that the purpose for which the street is to be opened or excavated involves the type of matter which is within the regulatory jurisdiction of a government agency or authority other than the Borough, the Borough Manager (before approving the application and issuing a permit) shall ensure that:
(a) 
Any necessary permits or approvals have been or will be obtained by the applicant from the appropriate agency or authority; or
(b) 
The nature or scope of the matter is such that no permit or approval is required from the agency or authority.
(3) 
Disapproval: (a) If the proposed street opening or excavation does not conform to the applicable provisions of this article or the applicable provisions of the Street Excavation Regulations and Specifications, or if any necessary permit or approval referred to in Subsection D(2) above has not been obtained or there is not satisfactory assurance that it will be obtained; or (b) if the Borough Manager has reason to believe that the proposed street opening or excavation, or the work to be done by the applicant in connection with the applicant's purpose in opening or excavating the street, could create an unreasonable risk of danger to life, health, safety or property, the Borough Manager shall disapprove the application and give the applicant a brief, written explanation setting forth the reasons why the application was disapproved and the manner in which the proposed opening or excavation or other matter faulted might be corrected in order that the application might be approved.
(4) 
Approval: (a) If the proposed street opening or excavation conforms to the applicable provisions of this article and the applicable provisions of the Street Excavation Regulations and Specifications, and if all necessary permits or approvals referred to in Subsection D(2) above have been obtained or there is satisfactory assurance that they will be obtained; and (b) if the case is not one within the scope of Subsection D(3)(b) above, the Borough Manager shall approve the application; fix the period of time during which the street excavation permit shall be effective; insert that period of time in the body of the permit; and issue the permit, provided the applicant has complied with the conditions precedent set forth in §§ 212-5 and 212-6.
E. 
Expiration of permit. A street excavation permit shall expire and become invalid if the street opening or excavation for which the permit was issued is not started and is not backfilled and closed and permanently paved within the permit period fixed by the Borough Manager under § 212-4D(4).
F. 
Revocation of permit. The Borough Manager shall have the right to revoke a street excavation permit in a case where any false statement or misrepresentation of fact was made in the application or in the plans or drawings on which the permit was based; the permittee fails to comply with any of the applicable provisions of this article or any of the applicable provisions of the Street Excavation Regulations and Specifications; work has been commenced or done contrary to the disclosures made in the application or in the plans and drawings on which the permit was based; work has been commenced or done contrary to any permit or approval referred to in § 212-4D(2); or the Borough Manager has reason to believe that the work being done by the permittee in connection with the permittee's purpose in opening or excavating the street could create an unreasonable risk of danger to life, health, safety or property.
G. 
Appeal to Council. Any applicant whose application has been disapproved by the Borough Manager or any permittee whose permit has been revoked by the Borough Manager may appeal the action of the Borough Manager to Council by filing an appeal with the Borough Secretary within 15 days after the date on which the action which is the subject of the case was taken by the Borough Manager. The Council shall hear and decide the appeal within 45 days after the date on which the appeal was filed with the Borough Secretary.
A. 
A street excavation permit shall not be issued by the Borough Manager until the prescribed fees have been paid to the Borough, and an amendment to an application for a permit, or an application for an amendment to a permit, shall not be approved by the Borough Manager until any additional fees have been paid.
B. 
The fees for the Borough Manager's review of plans and drawings, the fee for a permit, and the fees for inspections under § 212-7A shall be those prescribed by the separate Borough Costs and Fees Schedule adopted by Council.[1]
[1]
Editor's Note: The current Borough Costs and Fees Schedule is on file in the Borough's offices.
C. 
The payment of any fee under Subsection A above shall not relieve the applicant or the permittee from the payment of any other fees which may be required under other ordinances, resolutions or regulations of the Borough or under the laws, rules or regulations of another government agency or authority.
A. 
No street excavation permit shall be issued until the applicant has filed with the Borough Manager a surety bond in a form (and with approved corporate surety) approved by the Borough Manager in the amount of $10,000 for each street opening or excavation which is the subject of the permit.
(1) 
The surety shall be conditioned on:
(a) 
The faithful compliance by the permittee with the provisions of this article (including the payment of charges imposed by this article);
(b) 
The faithful compliance by the permittee with the provisions of the Street Excavation Regulations and Specifications; and
(c) 
The permittee keeping the covenant that the permittee will save, defend and keep the Borough harmless from and indemnify it against all claims, actions, suits, damages, losses and expenses (including but not limited to attorneys' fees) suffered or incurred by the Borough and arising out of or attributable to the street opening or excavation, the work connected therewith, the purpose thereof, or any other matter, cause or thing related thereto (including but not limited to a break, leak, explosion, or other accident involving a utility line or appurtenance, or a part thereof, located or to be located in the excavation).
(2) 
In lieu of a separate surety bond for each street excavation permit, the applicant may file with the Borough Manager a surety bond in a form approved by the Borough Manager, guaranteed by an approved corporate surety and in the amount of $75,000, conditioned as above, and intended to apply to and cover all street openings or excavations for which permits might be issued thereafter to the applicant.
(3) 
For purposes of this § 212-6, the term "approved corporate surety" means a corporate surety:
(a) 
Which is authorized to transact business in Pennsylvania;
(b) 
Which is listed in the most current Circular 570 issued by the United States Department of the Treasury Financial Management Service, Fiscal Service; and
(c) 
Which is satisfactory to the Borough Manager.
B. 
In addition to any other surety bond required by this article, at the time of completion of permanent repaving by permittee and to secure the structural integrity and functioning of the Borough street upon completion of the trench restoration work and permanent repaving by the permittee for a period of 18 months after completion of the permanent repaving by permittee, the permittee shall provide a maintenance bond to the Borough, with approved corporate surety in the amount of 15% of the actual cost of such said trench restoration, including permanent repaving, as is deemed acceptable to the Borough. If a permittee performs trench restoration, including permanent repaving, with its own employees, then it shall provide Borough with an itemized fair market value estimate of the actual cost of such trench restoration, including permanent paving, for review and approval by the Borough. In such case, the amount of said surety bond must be deemed acceptable by the Borough. The Borough shall provide the appropriate form or forms for use in relation to the maintenance bond.
C. 
No street excavation permit shall be issued until the applicant has furnished the Borough Manager with a certificate of insurance evidencing that the applicant will have in force [during the permit period fixed by the Borough Manager under § 212-4D(4)] liability insurance for the following hazards, liabilities and coverages and for not less than the minimum limits of liability prescribed by this Subsection C as follows:
(1) 
Comprehensive general liability insurance, including:
(a) 
Premises – operations.
(b) 
Explosion and collapse hazard.
(c) 
Underground hazard.
(d) 
Products liability and completed operations hazard.
(e) 
Broad form property damage.
(f) 
Accident due to operation of independent contractor.
Limits of Liability
Bodily injury
All persons each occurrence
$1,250,000
Aggregate limit of liability for products liability and completed operations hazard
$1,250,000
Property damage
Each occurrence
$1,250,000
Aggregate
$1,250,000
Or, in the alternative, bodily injury and property damage combined
Each occurrence
$1,500,000
Aggregate
$1,500,000
(2) 
Comprehensive vehicle liability insurance, covering:
(a) 
Owned vehicles.
(b) 
Hired vehicles.
(c) 
Non-owned vehicles.
Limits of Liability
Bodily injury
Each person (each accident)
$1,000,000
(All persons) each accident
$1,250,000
Property damage
Each accident
$1,000,000
Or, in the alternative, bodily injury and property damage combined
Each accident
$1,250,000
A. 
All work in connection with the opening, excavation, backfilling and closing of an opening in a Borough street (including any work required to be done in order to protect the public from the hazards incident to a street opening or excavation, and including the temporary paving of the closing in the case where the opening was made in a paved street) and permanent paving of a Borough street shall be done by the permittee at the permittee's expense; shall be done by the permittee in accordance with the applicable provisions of this article and the applicable provisions of the Street Excavation Regulations and Specifications; and shall be subject to inspection and approval by the Borough Manager or by such employee of the Borough or other person as the Borough Manager may designate.
B. 
Before the permittee undertakes the work of: 1) the cut to make the opening in the street; 2) the excavation of the opening; 3) the backfilling of the excavation; 4) the closing of the opening (including the temporary paving of the closing in the case where the opening was made in a paved street); or 5) the permanent paving of a Borough street, the permittee shall first notify the Borough Manager or his/her designee as to the time when the permittee will do that particular work.
C. 
The cut to make the opening in the street shall be done by the permittee so as not to disturb or damage any boundary markers or other surface monuments. Any damage done by the permittee to a boundary marker or other surface monument shall be promptly reported by the permittee to the Borough Manager or his/her designee.
(1) 
The excavation of the opening by the permittee, the work done by the permittee in the excavation in connection with the permittee's purpose in opening and excavating the street, and the backfilling of the excavation by the permittee shall be done so as not to interfere with, disturb or damage any utility line or appurtenance which is owned or operated by a person other than the permittee and which is found or encountered in the excavation, and no such line or appurtenance shall be used by the permittee, or removed, displaced, altered, changed or otherwise disturbed by the permittee, without the prior permission of the owner or operator. Any damage done by the permittee to such a line or appurtenance shall be promptly reported by the permittee to the owner or operator.
(2) 
The permittee shall put back to its original position any subsurface utility locator marker or strip removed by the permittee and shall replace, with a like-for-like replacement, any subsurface utility marker or strip damaged or destroyed by the permittee.
D. 
The Borough Manager or his/her designee may require that an on-site inspector selected by him/her observe at all times the work done by the permittee under Subsection B in order to ensure that the work is done in accordance with the applicable provisions of this article and the applicable provisions of the Street Excavation Regulations and Specifications. However, the on-site inspector shall not be responsible for and shall not have control or charge of the permittee's work methods, techniques or procedures and shall not be responsible for or have control or charge over the acts or omissions of the permittee or the permittee's employees or any other persons performing work for the permittee.
(1) 
The function of the on-site inspector shall be to keep the Borough Manager or his/her designee informed of the progress and quality of the permittee's work under Subsection B of this section and to endeavor to guard the Borough against defects and deficiencies in the permittee's work under Subsection B.
(2) 
If an on-site inspector is used under this Subsection D, the permittee shall be charged for the on-site inspector, and the charge to the permittee shall be the actual cost to the Borough of the inspector plus 15% to cover the Borough's costs of overhead.
E. 
If the Borough Manager or his/her designee determines that any work done by a permittee under Subsection B of this section does not comply with the applicable provisions of this article or the applicable provisions of the Street Excavation Regulations and Specifications, and if the permittee fails to correct the work in accordance with the instructions of the Borough Manager or his/her designee and within the time prescribed by the Borough Manager or his/her designee, the Borough Manager may, in addition to revoking the street excavation permit, direct that the Borough (or an independent contractor retained by the Borough) correct the work. In such a case, the permittee shall be charged for the work done by or for the Borough, and the charge to the permittee shall be the base cost to the Borough of the work. If the excavation is not backfilled and/or the opening is not closed (including the temporary paving of the closing in the case where the opening was made in a paved street) and/or not permanently paved within the permit period, the Borough Manager may direct that the Borough (or an independent contractor retained by the Borough) backfill the excavation and/or close the opening and/or permanently pave the Borough street. In such case, the charge to the permittee shall be the base cost to the Borough of the work.
F. 
Notwithstanding the provisions of the preceding subsections of this § 212-7, the Borough Manager or his/her designee may require that the cut to make the opening in the street, the excavation of the opening, the backfilling of the excavation, and the closing of the opening (including the temporary paving of the closing in the case where the opening was made in a paved street), and the permanent paving of a Borough street, or any one of the foregoing steps in the work, be done by the Borough (or by an independent contractor retained by the Borough) rather than by the permittee. In such a case, the permittee shall be charged for the work done by or for the Borough, and the charge to the permittee shall be the base cost to the Borough of the work.
A. 
Permanent repaving and corrective work by the permittee of a paved Borough street. The permanent repaving of an opening in a paved Borough street shall be done by the permittee within 90 days after the date of the initial excavation of the street, except that if the initial excavation is completed between the date of November 15 of any year and the immediately succeeding March 31, permittee shall only temporarily close and backfill the street (including temporary paving of the closing in the case where the opening was done in a paved street). Thereafter, permanent repaving and corrective work shall be completed by the permittee within 90 days of the immediately succeeding April 1. Additionally, upon completion of the permanent repaving, permittee shall provide a maintenance bond, with approved corporate surety, to the Borough to secure the structural integrity of the trench restoration and permanent repaving in accordance with § 212-6B of this article.
B. 
Permanent repaving and corrective work by the Borough of a paved Borough street. Should the permittee fail to permanently repave and otherwise correct an opening in a paved Borough street, timely as noted above, the Borough (or by an independent contractor retained by the Borough) shall complete the work, and the permittee shall be charged for the permanent repaving, as well as charged for any corrective work done under § 212-8D by the Borough (or by an independent contractor retained by the Borough). Regardless, in relation thereto, permittee shall make payment of the applicable surcharge under § 212-8E.
C. 
The charge to the permittee for permanent repaving by the Borough shall be:
(1) 
The base cost to the Borough of the work; plus
(2) 
Any applicable surcharge under Subsection E.
D. 
Where due to improper backfilling or closing work by the permittee in a paved Borough street it is necessary for the Borough to correct the backfilling or closing work, or where within 18 months after the laying of the permanent repaving defects appear in the permanent repaving which are due to improper backfilling or closing work and/or defective permanent repaving by the permittee and it is necessary for the Borough to correct the defects in the permanent repaving, the charge to the permittee for the corrective work shall be: (a) the base cost to the Borough of the corrective work; plus (b) any applicable surcharge under Subsection E of this section.
E. 
To compensate the Borough for damage to the usefulness, durability and strength of a paved Borough street which was constructed, reconstructed, surfaced or resurfaced prior to the street opening or excavation or permanent repaving by the permittee, a surcharge shall be included in the charges imposed under Subsections B, C and D of this section. If the paved street is constructed, reconstructed, surfaced or resurfaced by the Borough and a street opening or excavation is made, the surcharge will be based on the percentage of the base cost, as follows:
Paved, Constructed, Reconstructed, Surfaced or Resurfaced and Street Opening and Excavation
Surcharge
Less than 5 years thereafter
100% of the base cost
5 to 6 years thereafter
80% of the base cost
More than 6 but less than 7 years thereafter
60% of the base cost
7 to 8 years thereafter
40% of the base cost
More than 8 but less than 11 years thereafter
20% of the base cost
A. 
Repair by owner.
(1) 
If a break, leak, explosion or other accident or emergency involving a utility line or appurtenance located beneath a Borough street occurs and if, in the opinion of the person who owns or operates the line or appurtenance, such accident or emergency creates an actual and immediate danger to life, health, safety or property, that person may open and excavate the Borough street to abate the danger without first obtaining a street excavation permit from the Borough Manager. In such a case, however, the person opening and excavating the street shall:
(a) 
Immediately notify the Borough Manager or his/her designee (or in the absence or unavailability of the Borough Manager or his/her designee, notify the Police Department of the Borough) of the location, nature and purpose of the street opening and excavation and the degree of the danger or the extent of the emergency; and
(b) 
Submit an application for a street excavation permit to the Borough Manager as soon as practicable after the opening and excavation have been made, but in no event later than the next business day after the opening and excavation have been made.
(2) 
The work in connection with the opening and excavation shall be done in accordance with the applicable provisions of this article and the applicable provisions of the Street Excavation Regulations and Specifications, and except for the waiver by the Borough of the requirement that a street excavation permit be obtained before the street is opened and excavated, all the administrative and compliance procedures of this article shall be adhered to.
B. 
If a break, leak, explosion or other accident or emergency involving a utility line or appurtenance located beneath a Borough street occurs and if, in the opinion of the Borough Manager or the Police Department of the Borough, such accident or emergency creates an actual and immediate danger to life, health, safety or property and if the person who owns or operates the line or appurtenance fails to abate the danger after such oral or written notice to do so (from the Borough Manager or the Police Department) as the circumstances or exigency of the particular case permit, the Borough Manager shall direct that the Borough (or an independent contractor retained by the Borough Manager) abate the danger. In such a case, the person who owns or operates the line or appurtenance which was the source of the danger shall be charged for the work done by or for the Borough, and the charge to that person shall be the base cost to the Borough of the work.
A. 
Any charge imposed upon a permittee or other person by the Borough under the provisions of this article shall be billed by the Borough within 60 days after the charge was incurred.
B. 
A bill rendered by the Borough shall be payable at face within 30 days after the date the bill is mailed. If the bill is not paid in full within the 30 days, it shall be delinquent and a penalty of 10% of the face amount of the bill shall be added to the amount unpaid.
C. 
If a bill, together with the penalty for delinquency, is not paid in full within 35 days after the bill becomes delinquent, the Borough may:
(1) 
Collect the delinquent bill, together with the penalty for delinquency, by exercising any one or more of the following remedies: proceeding against the surety on the bond filed under § 212-6A and/or B, as applicable, or instituting an action in assumpsit or filing a municipal claim as a municipal lien; and
(2) 
Refuse to issue any further street excavation permits to the debtor.
At least 30 days before the date when work is to be started by the Borough (or by an independent contractor retained by the Borough) on the construction, reconstruction, surfacing or resurfacing of a Borough street, the Borough Manager shall give written notice of that fact, by ordinary mail, to the owners of all properties which abut the street and to all utility companies which operate in the Borough, and shall include in that notice:
A. 
A description sufficient to identify the type of improvement work which will be done and the line or limits of the street where the improvement work will be done;
B. 
The approximate date when the improvement work will be started; and
C. 
An order substantially to the effect that the property owners and the utility companies complete the construction or installation of any new utility lines or appurtenances beneath the street and complete the repair of any existing utility lines or appurtenances beneath the street before the date when the improvement work will be started.
The issuance of a street excavation permit under § 212-4 or the waiver under § 212-9A of the requirement that a street excavation permit be obtained shall not impose any liability upon the Borough Manager, any inspector designated or selected by the Borough Manager under § 212-7, or the Borough or upon any other officer, official, staff member, employee or consultant of the Borough for any injury or damage suffered or incurred by any person in connection with or arising out of any work done or not done under a street excavation permit or any work done under § 212-9A without a street excavation permit. If the Borough Manager, or any inspector designated or selected by the Borough Manager under § 212-7, acted in good faith and without malice, any act or omission by the Borough Manager or the inspector in the performance of his/her duties or in carrying out his/her responsibilities or in exercising his/her powers shall not impose any liability upon the Borough Manager, the inspector, or the Borough, or upon any other officer, official, staff member, employee or consultant of the Borough for any injury or damage suffered or incurred by any person in connection with or arising out of the act or omission.
The provisions of this article shall not be applicable to any street opening or excavation made by the Borough or made for the Borough by an independent contractor retained by the Borough or the Borough Manager.
A. 
Any person who violates any provision of this article or any provision of the Street Excavation Regulations and Specifications, or who fails to carry out or comply with an instruction or order of the Borough Manager, shall, upon conviction of the offense, be sentenced to pay a fine of not more than $1,000 and the costs of prosecution and reasonable attorneys' fees incurred by the Borough in the enforcement proceedings and, upon failure to pay such fine and costs and reasonable attorneys' fees incurred by the Borough in the enforcement proceedings, to imprisonment for not more than 30 days. For the purposes of the imposition of the fine and costs prescribed by this § 212-14A, the word "person," when applied to partnerships, limited liability companies, firms or associations, shall mean the partners or members or managers thereof; when applied to organizations or corporations, the officers thereof; and when applied to other entities, the officers, officials or other individuals responsible for managing the business or affairs of the entity.
B. 
Each day that an instruction or order of the Borough Manager is not complied with shall be deemed to constitute a new or separate offense under Subsection A and subject in all respects to the same penalty as is provided in Subsection A, and a separate prosecution may be instituted and a separate fine imposed for each offense committed after the first offense.
C. 
The imposition of a penalty under this § 212-14 shall not preclude the Borough from instituting an appropriate action or proceeding to prevent, restrain, correct or abate a violation or any act, conduct, use, condition or work which is not permitted by this article or the Street Excavation Regulations and Specifications through an action in equity brought in the Mifflin County Court of Common Pleas.