[Adopted 9-15-1975 by Ord. No. 425 (Ch. XXI, Part 1, of the 1975 Borough Code); amended in its entirety at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
As used in this article, the following terms shall have the meanings indicated:
- Any person who makes application for a permit.
- Material used to replace, or the act of replacing, material removed during excavation.
- BASE COURSE
- The layer of specified bituminous material placed immediately below the wearing course and on top of a subbase and subgrade to support the wearing course of an asphalt street.
- The Borough of Palmyra, Lebanon County, Pennsylvania.
- BOROUGH COUNCIL
- The governing body of the Borough.
- Actual expenditures incurred by the Borough for labor, equipment, and materials including, without limitation, all fringe benefits and overhead, professional engineering fees, attorney's fees, etc.
- DEGRADATION FEE
- A fee paid by the permittee to the Borough to defray the depreciation of Borough streets which have been constructed, reconstructed, or resurfaced within five or less years prior to a street opening.
- Any unforeseen circumstance which calls for immediate action to protect or safeguard life or property or for the restoration or continuance of a public utility, or other public service.
- ENFORCEMENT OFFICER
- The person appointed by Borough Council to administer and enforce this article.
- A mixture of cement, water, and sand.
- The Borough's authorized representative assigned to inspect permitted work.
- MUNICIPAL AUTHORITY
- Any municipal authority created, in whole, or in part by the Borough of Palmyra under the Pennsylvania Municipal Authorities Act.
- The legal or equitable owner of the facilities upon which work is to be performed or which are to be installed pursuant to a permit issued under this article.
- The Pennsylvania Department of Transportation, or any agency successor thereto.
- Authorization granted in writing by the Borough to an applicant to conduct an excavation within a Borough-owned right-of-way.
- PERMIT FEE
- A fee paid by an applicant to the Borough to cover the costs of issuing, processing, inspecting, and filing the permit.
- Any person who has been issued a permit and who shall by acceptance thereof agree to fulfill any provision of this article.
- Any natural person, firm, partnership, association, corporation, public utility, or similar entity.
- Drawings which show the location, character, and dimensions (length, width, and depth) of the proposed occupancy and related road features.
- PUBLIC UTILITY
- Any utility company, excluding municipal authorities created by the Borough, licensed by the Public Utility Commission of the Commonwealth of Pennsylvania.
- SEAL COAT
- A thin liquid bituminous material applied to a bituminous surface course to waterproof joints within the bituminous surface course.
- The entire right-of-way of a public road, public alley, or public easement, excluding designated curb and sidewalk areas, within the Borough.
- WEARING COURSE
- The top layer of specified bituminous concrete material designed to accommodate traffic load, traffic abrasion, and has the ability to resist skidding, and the disintegrating effects of climate for the construction of an asphalt street.
Editor's Note: See 53 P.S. § 10101 et seq.
The owner and contractor performing the work pursuant to this article shall be jointly and severally responsible for obtaining the permit. The owner and contractor performing the work are also jointly and severally responsible for complying with the provisions of this article and all conditions of the permit.
The owner and contractor performing the work are responsible for causing their agents, employees, subcontractors, successors, personal representatives and assigns to comply with the provisions of this article and the conditions of the permit, and each of them shall be bound thereby.
The permit shall be maintained as a permanent record and remain in effect, subject to the conditions thereof, as long as the owner's facilities authorized therein occupy the public right-of-way.
The work authorized under the permit shall also be subject to all other applicable specifications, rules, laws, and regulations of the United States and the Commonwealth of Pennsylvania and all other applicable Borough ordinances.
The work authorized under the permit shall be done at such time and in such manner as to be consistent with the safety of the public and shall conform to all requirements and standards of the Borough.
The opening of the surface of any Borough street is prohibited unless a permit is obtained for that purpose in the manner hereinafter described. Such a permit shall be granted by the enforcement officer, when the person applying for such permit files an application with the Borough at least five business days prior to the start of work, in compliance with the provisions of this section and pays the Borough the amounts hereinafter provided.
Any person working in the vicinity of a Borough street who in any manner disturbs such street, or who in any manner causes damage to a street, shall be required by this article to obtain a permit and to correct such damage in accordance with the standards of the Borough. Permits will not be required for persons excavating immediately adjacent to curb for the expressed purpose of installing or replacing curbs and/or sidewalks, provided that a curb and sidewalk permit has been obtained from the Borough prior to performing such work.
The obtaining of permits by Borough departments shall be waived when work is to be performed completely by Borough personnel.
All contractors performing work under contract for the Borough, or any municipal authority, shall obtain a permit for street openings.
Public utilities shall obtain permits for street openings and excavations to be performed by their own crews, forces, or contractors.
Nothing contained herein shall be construed to authorize the issuing of a permit for the making of a tunnel under any street. Tunneling shall only be permitted after successful petition to Borough Council.
No permit shall be granted to any applicant unless the applicant shall have paid any and all fees owed to the Borough for prior excavations made, or for any loss, damage, or expenses in any manner occasioned by, or arising from the excavation of streets of the Borough under prior permits.
In the event that street openings are necessitated by emergencies, permits shall be obtained, and fees paid, within five business days after completion of the work, and said permit shall be retroactive to the date when the work began.
A person performing street openings for an emergency must certify the nature of the emergency or circumstance, in writing, to the enforcement officer within five business days after such emergency.
When the Borough shall propose to reconstruct or resurface any street, the enforcement officer may serve written notice by certified mail of such improvement to all persons owning property abutting the road about to be improved and to all public utility companies and municipal authorities operating in the Borough. Within 90 calendar days from receipt of such notice, all notified persons shall complete or cause to be completed all necessary repairs and replacement of utility facilities under the street and designated curb and sidewalk areas.
Notified persons shall also complete any new installations under the street and designated curb and sidewalk areas required for use within a five-year period thereafter. All repairs, replacements and new installations of underground facilities shall be in first-class condition so that the same cannot reasonably be expected to require repairs or renewal within a period of at least five years thereafter.
Upon failure of any notified person or persons to comply with the notice from the enforcement officer, make repairs or replacements of underground facilities the Borough shall cause existing underground facilities to be placed in first-class condition as aforesaid or to be entirely removed if not used or necessary for public convenience, whereupon the Borough shall be entitled to collect the cost of such renewals, repairs, removal or other work from the aforesaid responsible person or persons, either by invoicing the person or persons or, in case of water or sewer house connections, by filing municipal liens therefor against the abutting properties benefited by such connections.
This section shall not forbid the installation by tunneling, after successful petition to the Borough Council, of new underground facilities, or the repair, replacement, or removal of already existing in or under the portions of such streets improved, in accordance with applicable rules and regulation, upon obtaining a permit and submitting payments to the Borough of the same fees as prescribed by the provisions of this article for making a surface opening in the street.
Street opening permits shall only be granted upon compliance with the following express provisions:
A written application shall be filed with the Borough at least five business days prior to the start of work for making all street openings or excavations, and the same shall be signed by the person desiring such permit. Such application shall set forth all information required by the Borough including, but not limited to, the names, addresses and contact information for the owner and contractor performing the work, the purpose for which such excavation is to be made, the probable length, width, and depth, and location of the same, the full scope of work to be included in the project, a sketch of the proposed opening site, and the date such excavation is to be refilled and resurfaced in the manner hereinafter provided, and shall provide that the applicant will faithfully comply with each and every provision contained in this article. An applicant shall furnish an engineered drawing of the proposed opening site only upon request of the enforcement officer. Items required on the drawing shall be specified at the time of the request.
Prior to the issuing of such permit, every such applicant shall pay the permit fee and other amounts required by this article.
Where the permit is required for water or sewer, the application shall be signed by an authorized representative of the utility furnishing the water or sewer service.
Except in emergency situations, the opening of a street which has been resurfaced or reconstructed within a three-year period prior to the date of request for the street opening shall be prohibited.
Except in emergency situations, applications for street openings shall be submitted to the Borough at least five business days prior to the proposed date of excavation. The enforcement officer shall review each application and grant or deny the applicant a permit upon completion of the review.
No street opening shall be performed, except in the case of emergency, between November 15 and March 15.
As a condition of the permit, the applicant shall agree to save the Borough, its elected and appointed officials, officers, employees, and agents harmless from any and all costs, damages, and liabilities by reason of personal injury or property claim which may accrue, or be claimed to accrue, whether directly or indirectly, by reason of said work, irrespective of the cause of such injury or damage. The acceptance of any permit under this article shall constitute such an agreement by the applicant whether the same is expressed or not.
An applicant shall supply a certificate of insurance to the Borough and have the certificate of insurance properly executed by the applicant's insurance agency. Properly executed certificates of insurance shall be filed with the Borough and shall verify that the applicant is insured against claims for personal injury as well as against claims for property damages which may arise from or out of the performance of the excavation work, whether such performance is by the applicant or anyone directly or indirectly employed by, or contracted by the applicant. Such insurance shall include protection against liability arising from completes operations, underground utility damage and collapse of any property. Liability insurance for personal injury or death shall be in the amount not less than $1,000,000 for each person and $1,000,000 for each occurrence and for property damage in an amount not less than $300,000. Such insurance shall also provide hold harmless coverage pursuant to Subsection G above, and shall designate the Borough and its elected and appointed officials, officers, employees and agents as additional insureds. Failure of an applicant to file a certificate of insurance shall be sufficient reason for denying a permit.
A permit fee and degradation fee, if applicable, shall be paid to the Borough prior to permit issuance. The Borough shall have the right, in its discretion, to waive fees for contractors performing work under contract with the Borough.
The permit fee and degradation fee shall be established from time to time by resolution by the Borough Council.
The Borough shall place collected degradation fees in the Borough General Fund. The number of square yards computed for the degradation fee will be based on the actual size of the excavation disregarding any pavement that must be removed to enable an overlap of surface course on the existing base course.
Borough Council shall adopt fees authorized by this article by resolution.
In all cases where a permit has been issued and the work set forth in such permit has not been completed, the amount not completed shall be canceled. The degradation fee paid shall be recalculated on the basis of the work actually completed and the actual extent of excavation. All degradation fees paid in excess of this adjustment shall be refunded without interest by the Borough, upon warrant properly drawn. The portion of the permit fee attributable to processing the permit application shall not be refunded upon permit cancellation. Provided, however, that before the permit is cancelled and the degradation fee is refunded, the permittee shall restore the pavement in accordance with the requirements of this article. If the permittee does not restore the pavement in accordance with all requirements of this article, no refund shall be due and the Borough shall have the right to make any necessary restoration and recover all costs from the permittee.
All permits are subject to revocation at any time by the enforcement officer after written notice for:
Written notice of such violation shall be served upon the permittee or his or her agent or employee engaged in the work. Such notice may be given either by personal delivery thereof to the person to be notified or by United States mail, postage paid, addressed to such person to be notified. The permittee shall be granted 24 hours to correct such violations unless specifically stated otherwise within the letter of notification of violation.
Upon revocation of the permit, no fees will be refunded to the permittee.
If any permittee is unable to complete the street opening on or before the date specified in the permit, the permittee shall file a written application for an extension of time with the enforcement officer, who shall have discretion to grant or deny such application. The written application shall be in letter form and shall thoroughly explain the reasons for the extension of time plus the additional length of time required. A fee as set forth from time to time by resolution by the Borough Council shall accompany the application for an extension. This fee shall defray the costs of processing and filing application.
All excavations within any street right-of-way shall have near vertical cut edges of the existing surfaces. During the course of excavation, if any section(s) of the surface material is undermined, additional surface material shall be removed with near-vertical, square-cut edges.
All materials which may be removed and all rock, earth, and sand taken from the excavation may be stored, if practical, in the roadway or such other suitable place and in such a manner as approved by the Borough. In case more materials are removed from any trench than can be used for backfill in the completed trench, the excess materials shall be removed from the site.
If the excavation is stopped either totally or partially, the permittee shall refill the trench and temporarily repave over the same.
The permittee shall keep the gutters, swales, flow channels, or other stormwater facilities open at all times so that the flow of stormwater shall not be obstructed.
Work shall be conducted so as to cause a minimum of inconvenience to pedestrian and vehicular traffic, and to private and public properties within the area of the work. It shall be the duty of the permittee at all times to maintain crossings, walks, sidewalks, and other roadways open to traffic in a satisfactory condition, and to keep all fire hydrants, water valves, and mailboxes accessible for use.
On important thoroughfares, highways, or narrow streets, excavated material shall be removed from the site of the work in order to provide adequate space for traffic.
When it is necessary to haul soft or wet materials over public streets, the permittee shall provide suitable vehicles and shall conform to all laws and ordinances relevant to such hauling.
Maintenance and protection of traffic on Borough streets and State highways shall be in strict accordance with PennDOT Publication No. 408, Section 900, and Publication No. 213, Temporary Traffic Control Guidelines, or as directed by PennDOT or Borough authorities.
All backfill material shall be free from cinders, ashes, refuse, vegetable or organic material, boulders, rocks, or other material deemed unsuitable in the option of the enforcement officer or inspector.
Backfilling shall not be done in freezing weather except by permission of the Borough, and shall not be made with frozen materials. No fill shall be made where the material already in the trench or excavation is frozen.
All backfill in paved areas shall consist of No. 2A Coarse Aggregate conforming to PennDOT Publication No. 408, Section 703.2.
All backfill shall be thoroughly and completely tamped and compacted to a minimum of 90% Proctor density. Compaction shall be by hand or approved mechanical methods in maximum eight-inch layers. Tamping shall proceed from the center of the excavation to the sides to prevent arching.
All backfilling within state highways shall conform to Chapter 459, Occupancy of Highways by Utilities, of PennDOT's regulations.
Borough streets. Regardless of the thickness of the existing base course, no base course shall be placed less than five inches in depth of Superpave Asphalt Mixture Design, HMR Base Course, PG 64-22, 0 to 0.3 million ESALs, 25 mm mix and shall conform to PennDOT Publication No. 408.
Sidewalks and curbs. The base course under sidewalks and curbs shall consist of a minimum depth of four inches of No. 2A Coarse Aggregate conforming to the specifications in PennDOT Publication No. 408, Section 309.
The existing surface shall be square, vertical-cut edges and shall be a minimum of 12 inches larger than the excavation opening on all sides. The existing surface, if bituminous, shall be tack-coated with a bituminous material meeting the specifications contained in PennDOT Publication No. 408, Section 460, to provide adherence of the new material.
A bituminous concrete wearing course of Superpave Asphalt Mixture Design, HMA Wearing Course, PG 64-22, 0 to 0.3 million ESALs, 9.5 mm mix, SRL-L shall then be placed to a thickness matching that of the existing bituminous wearing course, but in no case shall the wearing course be less than 1 1/2 inches compacted thickness.
A seal coat of bituminous material, PG 64-22, meeting the requirements of PennDOT Publication No. 408, Section 409, shall then be applied at least 12 inches over the paving junction.
Pavement restoration shall be performed immediately after trenches have been acceptably backfilled.
Where permanent type paving restoration is not permitted because of weather limitations on placement of bituminous concrete, as defined in PennDOT Publication No. 408, Section 409.3(b), temporary paving shall be required. Temporary paving shall consist of a layer of bituminous patching material from an approved manufacturer in PennDOT Bulletin 15, having a minimum thickness after compaction of two inches, and the top surface shall be flush with the surface of the adjacent existing pavement. All temporary paving shall be continuously maintained by the permittee until it can be replaced by the permanent paving. When the conditions permit the placement of permanent paving, the temporary paving shall be completely removed prior to the placement of the permanent paving material.
Construction and compaction of all bituminous pavement shall be in accordance with the requirements of PennDOT Publication No. 408.
The pavement restoration shall be continually maintained by the permittee for a period of two years from the date of acceptance by the Borough.
At the completion of the permanent patch, the permittee shall paint the month and year on each patch with a permanent paint as a means of future reference.
Curb and sidewalk cuts.
Where curb and sidewalk must be removed, they shall only be removed in sections extending from expansion joint to expansion joint.
Replacement of curbs and sidewalks shall be done in accordance with the specifications found in Chapter 314 of the Code, or must meet PennDOT specifications if on a state-owned roadway.
Editor's Note: Said specifications comprise Appendix A, which is included as an attachment to this chapter.
In case the work has not been completed before the date of expiration as shown on the permit, which time shall be fixed when the permit and/or time extension in granted, the Borough may take steps to backfill the trench and to replace the street surface over the opening for which the permit has been issued. The Borough shall invoice the permittee for all costs by the Borough in the performance of this work. Payment not made within 30 days shall be collectable in the manner provided by law.
The permittee shall assume all responsibility for the excavation made by such party for refilling the same and for all damages that may arise by reason of the digging of such trenches or excavations.
Whenever it is determined by the Borough that in the best interest of the Borough it is necessary to assign additional street opening inspectors to supervise excavation, backfill or pavement restoration operations, such inspectors shall be paid by the Borough at a rate to be fixed by the Borough. The Borough shall invoice the permittee for all costs incurred by the Borough necessitated by the assignment of additional inspectors.
The Borough Manager is authorized to make such other rules and regulations for the excavation of streets which he or she may deem necessary for the proper maintenance of the street surface due to excavations, which rules and regulations shall be printed upon the permit granted or forwarded from the Borough, in writing, from time to time.
A permit shall be obtained for any test hole work. No test holes shall be made in or upon a greater surface of the street than as specified in such permit, and no excavation or test holes shall interfere with any of the water pipes, sewers, and drains of the Borough, or any other underground utility service. Test holes having an area of four square inches or less shall be filled by the applicant with grout composed of one part cement and two parts sand and a sufficient quantity of water, filled to the surface of the highway. The surrounding surface of the street shall be placed in the same condition as before. Test holes greater than four square inches in area shall be backfilled in accordance with the provisions of this article, unless otherwise directed by the enforcement officer.
All gutters, swales, or other stormwater facilities must be left open so as not to obstruct the free passage of water, and the sidewalks and footways must be kept in a safe and passable condition. All excavation shall have sufficient lights and barricades to identify them from all directions during the day and after dark. If for safety purposes the enforcement officer deems it necessary to install additional warning devices, e.g., lights, barricades or signs, the permittee shall be notified of the decision and shall receive instructions on the installation. In case of emergencies, the Borough may install all additional warning devices deemed necessary by the enforcement officer. The Borough shall invoice the permittee for rental and installation costs incurred from the date of installation costs incurred from the date of installation until the permittee installs the required warning devices.
If the permittee fails to install such devices when the enforcement officer directs the permittee to do so, the Borough shall invoice the permittee for rental and installation costs incurred from the date of installation until the date of removal. Payment not made by the permittee within 30 days of the invoice date shall be collectable in the manner provided by the law.
In no case shall a permittee open or remove a greater area of street surface than specified in the original application. The permittee shall not open any street area at a location not specified in the permit. If the permittee determines during construction that an additional area of the street will have to be opened, the permittee shall notify and secure permission from enforcement officer for an additional opening. Upon receipt of the permission, the permittee shall file a supplementary application for the work no later than the next workday. Fee amounts specified in this article shall be followed for any subsequent fees associated with the supplementary applications.
The permittee shall guarantee and maintain all work for a period of 24 months from the completion of the restoration and replacement work. Within this twenty-four-month period, upon notification from the Borough of necessary correction work required, including street settlement, the permittee shall correct or cause to be corrected all restoration work required within five calendar days of notification. The enforcement officer shall determine the extent of the restoration required and the method of correction. Any and all work not completed within this five-day period may be completed by the Borough. The Borough shall invoice the permittee for all the costs incurred by the Borough in performance of this work, plus an additional 10% additional to cover administrative expenses. Payment not made within 30 days of the invoice shall be collectable in the manner provided by law, including any allowable penalties.
If the enforcement officer determines that a person has committed or permitted the commission of a violation of this article, the enforcement officer shall inform such person in writing of the violation, shall notify such person to cease the violation of this article, and shall inform such person they must pay a civil penalty to the Borough within the range of the amounts set forth below to settle the violation. The penalty for a first offense shall be not less than $50 and not more than $600; the penalty for a second offense shall not be less than $100 and not more than $600; and the penalty for a third or greater offense shall be not less than $200 and not more than $600. If such person fails or refuses to remit the penalty to the Borough within 10 days from the date of the written notice of the violation of this article, the Borough may commence a civil collection action in accordance with Section 3321(b) of the Borough Code and/or may commence an action in equity. In all enforcement or collection actions, the Borough shall seek a judgment for the penalty previously imposed together with additional daily penalties for continuing violations plus all court costs, including the reasonable attorneys' fees incurred by the Borough in the proceedings. Each day that a violation continues shall constitute a separate violation, and each section of this article which is violated shall constitute a separate violation.
Editor's Note: See 8 Pa.C.S.A. § 3321(b).
Any person aggrieved by a decision of the enforcement officer under this article shall, to the extent allowed by law, be entitled to a hearing before the Borough Council after notification is submitted in writing to the Borough Manager requesting such appeal.