[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.
BOROUGH STREET
PERMITTEE
PERSON
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.
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.
The person in whose name a street excavation permit was issued
under this article.
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:
(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.
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.
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.
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.
