This article of the Town of Milan, establishing regulations and procedures governing issuance of excavation/utility permits to individuals and to firms, corporations and other legal entities (collectively "entity") within the Town right-of-way, is adopted pursuant to Town Law § 130, Subdivision 7, to regulate the manner in which excavations may be made for the installation, modification, or repair of public or privately owned utilities for, including without limitation, underground electric, telephone, cable television, data/communications, water, wastewater, drainage, gas, oil or other direct-buried and conduit appurtenances in or under the streets, highways, sidewalks and public places in the Town of Milan to protect the health, safety and welfare of the public during periods of excavations and to ensure the quality and safety of Town thoroughfares.
[HISTORY: Adopted by the Town Board of the Town of Milan as indicated in article histories. Amendments noted where applicable.]
[Adopted 7-13-2009 by L.L. No. 1-2009]
A.
Where an existing Town road shall be openly excavated or disturbed within the right-of-way by an individual or publicly owned or privately owned entity, the Town Superintendent of Highways shall be so notified a minimum of 48 hours prior to commencement of work. All publicly owned and privately owned utilities are required to make application for right-of-way work and must be issued permits by the Town prior to commencement of any work. Applications for each location are to be made on standard forms provided by the Town. Emergency work shall be permitted without application during hours when applications cannot be processed, subject to notification of the Town Highway Superintendent.
B.
No individual or entity shall open or cause to be opened by cutting or excavating the surface or soil of any Town street, highway, public place or sidewalk without first obtaining a permit therefor issued by the Town Superintendent of Highways or his or her designee.
C.
There shall be no permit fee for work done by a contractor on behalf of the Town of Milan after proper authorization or pursuant to a Town construction contract.
An application for an excavation permit for any Town street, highway, public place or sidewalk shall be made to the Superintendent of Highways upon a form to be provided for that purpose. The application shall require the name and address of the applicant and shall identify the party on whose behalf the work is to be performed; the location of the property; a description of the proposed work including: proposed burying and installation process; the size and purpose of the excavation to be made; description of traffic control plans; the dates when the work is to be performed; the type of pavement or surface to be disturbed; the materials to be used in replacement and a description of the restoration process; together with detailed plans showing the location of the work to be performed along with technical drawings showing the utility to be buried; and such additional information as the Superintendent of Highways may require.
A.
The applicant shall be liable to the Town for any expenses incurred by the Town to correct deficiencies in the site or to bring the site into compliance with specific permit conditions.
B.
The Town may correct any work performed that does not comply with the conditions of the approved permit and the charges therefor shall be charged against the applicant's bond or security deposit. The applicant shall remain liable for any expenses in excess of the bond or security deposit and the Town may commence an action against the applicant to collect same, together with associated costs, including without limitation attorneys' fees.
A.
Bonds; insurance.
(1)
Except as otherwise provided herein, no permit shall be issued unless, as a condition precedent thereto, the applicant shall have filed with the Town Clerk an indemnity bond naming the Town as a beneficiary or public liability insurance naming the Town as an additional insured, providing the following limits of liability:
(2)
The indemnity bond or insurance policy shall be endorsed to eliminate the exclusion of underground damage and shall provide for broad form property damage coverage.
(3)
The indemnity bond or insurance policy shall provide that the Town will be held harmless from any loss, injury or damage arising out of action taken pursuant to the permit or as a result of any negligence or fault or action of the applicant, his or her contractor, servants or agents in connection with the work to be performed. A provision shall guarantee payment for all the costs and expenses made or incurred by the Town, its officers, agents and employees in defending any action brought against the Town by reason or any action taken pursuant to said permit. The indemnity bond or insurance policy shall additionally provide that all work shall be performed in accordance with the conditions of the permit and all applicable laws, rules and regulations applicable thereto.
(4)
The indemnity bond or insurance policy shall be approved by the Town Highway Superintendent and/or the Town Attorney for conformity with the provisions of this article. The bond or insurance policy shall not be deemed to limit the applicant's legal liability for actions taken or arising out of the issuance of the permit.
(5)
Each indemnity bond or insurance policy shall specifically provide coverage to the Town for a period of one year after the completion of the work performed under such permit.
(6)
Each indemnity bond or insurance policy shall specifically state that all persons employed to perform the work are covered by workers' compensation insurance as required by New York State law.
B.
Except as otherwise provided herein, no permit shall be issued unless, as a condition precedent thereto, the applicant shall have deposited with the Town Clerk a performance bond in the amount set forth on the Town of Milan Highway Work Permit Schedule, adopted from time to time by the Town Board. The performance bond shall be paid in cash, by bank check or certified personal check. The performance bond shall be retained as security for the faithful performance by the entity of all terms and conditions of any permit issued to it. The Town shall return to the applicant all moneys on deposit 30 days after completion of all work, less any moneys expended by the Town Highway Superintendent to correct deficiencies in the applicant's performance of the permit specifications.
C.
Referral to consultants.
(1)
If, upon review of an application for a permit pursuant to this article, the Town Highway Superintendent determines that 1) because of the magnitude and/or complexity of the work proposed, the potential liability to the Town may exceed the limits set forth in Subsections A and B above, or 2) the form of bond submitted by the applicant differs from the forms previously approved by the Town, the Town Highway Superintendent may refer any such application to the Town's engineers, attorneys or other consultants (collectively "consultants") for review and consideration. Prior to any such referral, the applicant shall submit an additional $500 as an initial deposit, to be held in escrow by the Town. The applicant shall replenish the escrow account as may be necessary to cover the actual and reasonable expense of the Town for the completion of any review pursuant to this Subsection C.
(2)
If following review of the application and related materials, the consultant(s) determine that additional insurance or security is reasonably required to protect the Town from and against damage or liability resulting from issuance of the permit or work performed in connection therewith, then the applicant shall be required to post such additional insurance or security prior to issuance of the permit.
A.
A public service corporation shall file and keep on file with the Town a performance bond of $25,000 approved as to form, amount and sufficiency of surety by the Town Attorney. The bond shall be retained as security for the faithful performance by the applicant of all terms and conditions of any permit issued to it.
B.
A public service corporation may, in lieu of the indemnity bond and insurance policy hereinbefore specified, file and keep on file with the Town Clerk an agreement approved as to form by the Town Attorney to indemnify and save harmless the Town from claims, suits and actions, proceedings, losses, injuries, damages and cost of every kind and description arising out of or resulting from any act or omission on the part of such public service corporation under any permit granted to it or from any negligence or fault of such public service corporation, its contractors, agents, servants or employees in connection with any excavations or any work related thereto. The agreement shall also provide that the public service corporation will defend, on behalf of the Town, any actions or proceedings which may be instituted against the Town.
C.
In an emergency, as that term is defined in § 174-7H below, excavations may be made by a public service corporation prior to obtaining a permit; provided, however, that the public service corporation shall have filed the required bond and evidence of insurance or indemnity agreement as specified in this article, and provided further that the public service corporation shall make application for the necessary permit not later than 48 hours, Saturdays, Sundays and holidays not included, after said excavation has been made.
A.
All work shall be performed in compliance with the requirements of this article, and any other applicable laws, regulations or policies of the Town of Milan, State of New York or otherwise.
B.
All work performed under a permit shall be completed as expeditiously as possible. The Town Superintendent of Highways shall be notified within four hours of the completion of work under any permit. If work is completed on a Saturday, Sunday or holiday or at the close of the business day, then the completion of the work shall be reported within four hours after the office of the Superintendent of Highways is open for the transaction of regular business. The applicant shall remain responsible to maintain barricades, warning lights and other required warning devices until the Superintendent has completed the repair of the excavation or until released from such obligation by the Superintendent of Highways. Except in emergency situations, no work shall be commenced on a Friday or the day before a legal holiday unless written permission is obtained from the Superintendent of Highways.
C.
During construction, the Highway Superintendent may order the applicant to stop work if the work being performed does not comply with conditions of the approved permit.
D.
Any work performed that does not comply with the conditions of the approved permit may be corrected using Town forces (Highway Department) and charged against the applicant's performance bond.
E.
Anyone working within the Town's highway right-of-way shall wear, at a minimum, an ANSI Class II safety vest. Where there is a threat of falling objects, a hard hat must also be worn.
F.
Any time work is being performed within the Town's highway right-of-way, work zone traffic control signs must be used in accordance with the current New York State Manual on Uniform Traffic Control Devices.
G.
Any damage caused to the Town's infrastructure shall be repaired or replaced by the applicant, at the applicant's expense, to the Highway Superintendent's satisfaction. Failure to satisfactorily correct any such damage shall be a violation of the permit and the Town shall be entitled to perform any corrective work, and seek reimbursement as provided for herein.
H.
In an emergency when a permit cannot first be obtained because the office of the Superintendent of Highways is closed, proper excavations may be made, provided that an application for a permit as required herein shall be obtained within four hours after the office of the Superintendent of Highways is opened. An emergency shall be deemed to exist when failure to take prompt action may result in danger to the life or property of the public. In the event of an emergency, the Town Superintendent may issue a permit immediately, requiring only such information as he or she deems necessary.
I.
During excavations, a serviceable portion of any thoroughfare shall be kept open for travel and the applicant shall, upon the direction of the Superintendent of Highways, provide one or more flagpersons to direct the flow of traffic. The Superintendent of Highways may require a detour be established and maintained by the applicant.
J.
All installations along the edge of a road must be kept as far as possible from the edge of pavement or driving lane.
K.
The laying of cable/conduit over any culvert/drainage pipe shall be prohibited.
L.
All pavement crossings must be done perpendicular to the center line of pavement with boring/directional drilling being the preferred method over open cut.
M.
All cables/conduits must be buried to a minimum depth of 24 inches.
N.
Caution tape must be placed 12 inches above the cable/conduit prior to backfill completion.
O.
No equipment or open trenches may remain in the right-of-way overnight.
P.
Notice of intent to dig must be given to the Highway Department no less than 48 hours prior to commencing work unless excavation is for an emergency repair, in which case an application and fees paid shall be done as soon as possible.
Q.
Open cut trenches crossing paved areas shall be filled with a minimum thickness of three inches of compacted asphalt, or if the existing pavement is thicker than three inches to a depth that matches existing pavement thickness.
R.
Excavations shall not be performed between December 1 and April 1, unless a special permit is obtained from the Superintendent of Highways or in the event of an emergency.
S.
Upon completion of the work and prior to return of any security, the applicant shall provide the Highway Superintendent with complete and accurate as-built plans.
A.
All projects shall be inspected during the course of work by the Town Superintendent of Highways to assure the Town that construction operations are in conformity with general specifications and standards and with any special conditions imposed in the issuance of the permit. Inspection fees shall be charged as provided in § 174-11 below.
B.
All excavation, trenching and backfilling operations shall conform to the Town of Milan Highway Specifications.
A.
Upon the issuance of a permit, the applicant shall properly barricade the area of proposed excavation and shall place and maintain windproof lights and such signs and warning devices as are reasonably necessary to protect the public. The Town Superintendent of Highways shall have the power to impose such additional terms and conditions as will provide for the public health, safety and welfare under the particular circumstances of each permit. If the applicant fails to comply with the provisions of this article, any conditions attached to its permit and/or the directions of the Town Superintendent, the Town Superintendent may, as the agent of the applicant, install such devices and take such action as he or she deems necessary. The applicant shall be liable for any expenses incurred by the Town under such circumstances.
B.
Access to adjoining property shall be maintained at all times and fire hydrants shall be left clear for base connections during time of construction on existing roads. At no time shall the length of excavated trench exceed 1,000 feet, and the flow of traffic shall not be impeded during periods of construction where at all possible. The road shall be left in a passable condition at the end of each day's work, with appropriate safety and warning devices in place and operational.
The Superintendent of Highways shall have the right to revoke or cancel any permit at any time should the applicant fail to comply with the terms and conditions thereof or with the terms and conditions of this article.
No excavation permit shall be issued except upon the payment of a fee to defray the administrative costs of this article. The permit fee shall not be refundable for any reason. This permit application fee is in addition to any other charge imposed hereunder. The permit fee shall include up to three inspections of the work by the Town: initial site visit, prepaving inspection and final inspection. If additional site inspections are required by the Highway Superintendent, a fee of $75 per inspection may be assessed and charged against the permitee's performance bond, at the discretion of the Highway Superintendent. Inspection fees shall be deducted from the security deposit prior to permit close-out and return of security, if applicable.
A.
All work shall be commenced within 90 days of permit issuance. Failure to commence work within 90 days shall result in expiration and forfeiture of such permit.
B.
All work shall be completed within one year of permit issuance. Any permit issued hereunder shall automatically expire on the one-year anniversary of issuance unless renewed following payment of all applicable fees.
Failure to comply with the provisions of this article shall constitute a violation. Every violation of any provision of this article shall be a separate and distinct violation, and in the case of a continuing violation, every day's continuance thereof shall be a separate and distinct offense. Violations of this article shall be subject to a fine of not less than $25 nor more than $250 for each day of violation, to be paid into the credit of the Town Highway Fund.