[Adopted 7-2-2003 by Ord. No. 2003-158[1] (Ch. 21, Part 1, of the 1984 Code of Ordinances);
amended in its entirety 2-11-2014 by Ord. No. 2014-1]
[1]
Editor's Note: The guidelines for paving maintenance and restoration
and the Pennsylvania Department of Transportation's certificate of
compliance, which were attached to this ordinance, are on file in
the office of the Borough Secretary.
A.Â
It shall be unlawful for a person to make an excavation or opening in any street right-of-way in the Borough without first having obtained a permit from the Borough. For purposes of this Article I, the term "street" shall include the paved cartway, the shoulder and any portion of the right-of-way. The permit shall be issued by the Secretary upon submission of a completed application and payment of a permit fee, which fee shall be for the use of the Borough to cover the cost of issuance of the permit and of the supervision and inspections required under this Article I. The permit fee shall be established by resolution of Borough Council from time to time, with the initial permit fee being established at $450 as of February 16, 2014.
B.Â
The permit fee includes up to five hours of engineering and inspection
time. The Borough reserves the right to establish an escrow account
for engineering and inspection fees required due to the size, nature
or complexity of the street openings or excavations, which, in the
opinion of the Borough Engineer, would necessitate engineering and
inspection fees beyond the five hours of engineering and inspection
time included in said permit fee. The Borough shall notify the permit
holder of the amount to be placed in escrow within 10 days of the
date of receipt of the application or issuance of the permit, whichever
is later. The amount to be placed in escrow shall be supported by
a written estimate of time required by the Borough Engineer and the
amount shall be based upon the current rates charged by the Borough
Engineer to the Borough as set forth in the Borough Fee Resolution,
which resolution may be amended by resolution enacted by Borough Council
from time to time. Permit holder shall place such amount in escrow
within five days after written notice from the Borough. In the event
permit holder fails to place such amount in escrow as provided hereunder
it shall result in the suspension or revocation of the permit until
such time as the amount is placed in escrow.
C.Â
When such additional engineering and inspection fees are incurred,
the Borough Engineer shall provide a written invoice detailing the
specific project, time spent, the hourly rate per employee and a description
and date of services performed. The Borough shall provide a copy of
such invoice to the permit holder, who may dispute such invoice in
accordance with those dispute provisions set forth in Section 503
of the Pennsylvania Municipalities Planning Code, as amended.[1] In the event the permit holder does not dispute said invoice
within 45 days of the date of invoice, the Borough shall withdraw
the fees due from said escrow account.
[1]
Editor's Note: See 53 P.S. § 10503.
D.Â
If the escrow account is reduced to 25% or less of the initial escrow
account and the Borough Engineer determines that the work that remains
to be completed will require engineering and inspection fees in excess
of those remaining in the escrow account, the Borough Engineer shall
prepare a supplemental estimate of engineering and inspection fees
that will be required through the completion of the excavation and
the Borough may require the permit holder to remit such additional
amount into escrow. In the event the permit holder fails to remit
funds into escrow within 10 business days of receipt of notice to
do so, the Borough may suspend or revoke the permit issued until such
time as the funds are deposited into escrow.
E.Â
If any funds remain in escrow upon completion of the work contemplated
by the permit, the Borough shall return such funds remaining to the
permit holder within 30 days of the date of the final invoice from
the Borough Engineer for services provided pursuant to such permit.
If the funds in escrow are not sufficient to pay the final invoice
from the Borough Engineer, such balance shall be invoiced to the permit
holder and shall be due within 45 days, subject to the dispute provisions
set forth above. Should the permit holder fail to pay for such invoice
within the time frame provided herein, the Borough shall be authorized
to recover such fees from the financial guarantee provided for below.
F.Â
The permit holder shall deposit with the Borough financial security
as provided below, as a guarantee that the permit holder will fill
the excavation, restore the surface of the street disturbed by the
work done under the permit and pay any additional engineering and
inspection fees beyond those included in the permit fee, as required
hereunder.
(1)Â
Cash deposits. Any person applying for a permit under this Article I may deposit a sum in cash as financial security. The amount of the cash deposit shall be set by the attached formula,[2] which formula may be amended by Borough Council by resolution
from time to time with input from the Borough Engineer. Upon completion
of the work covered by the permit and upon satisfactory inspection
by the Borough Engineer, 1/2 of such cash deposit shall be promptly
refunded by the Borough to the permittee. The balance of the cash
deposit shall be held by the Borough for a period of one year from
the date of the expiration of the permit.
[2]
Editor's Note: The formula is on file in the office of the
Borough Secretary.
(2)Â
Surety bond. The applicant shall provide to the Borough a surety bond naming the Borough as beneficiary in an amount equal to the difference between any cash deposit given and the guarantee amount set in accordance with Subsection F(1) above. The Borough may accept a "blanket" surety bond from utilities who intend to apply for multiple openings and excavations within the Borough on an annual basis. Such "blanket" surety bond shall be in an amount, in the opinion of the Borough, sufficient to guarantee the filling of excavations and restoration of the surface of streets for all openings or excavations made within the Borough in any annual period. The required surety bond shall:
(a)Â
Be with a surety company satisfactory to the Borough.
(b)Â
Be with a surety company authorized to transact business in
the commonwealth.
(c)Â
Be satisfactory to the Borough Solicitor in form and substance.
(d)Â
Be conditioned upon the permittee's compliance with this Article I and further conditioned upon filling, restoring and placing in good and safe condition, as near as to the condition prior to disturbance by the permittee, and to the satisfaction of the Borough Engineer.
(e)Â
Be for a term that commences on the date of the permit and ends
upon the expiration of one year from the date of expiration of the
permit.
Every permit issued under this Article I shall state, as conditions of the permit, the purpose for which the opening or excavation is authorized; the location and approximate surface area of the opening; the dates when the work under the permit is to be commenced and to be completed; the name of the contractor or subcontractor completing such opening or excavation, and the number of days for which the permit shall be valid. It shall be the duty of the permit holder to do all work under this article in conformity with all these conditions, and a failure to comply with any of the conditions shall constitute a violation of this Article I.
A.Â
It shall be the duty of the holder of every permit issued under this
article:
(1)Â
At all times to take every necessary and reasonable safety precaution,
including the installation and maintenance of guards, barriers and
warning signs and, during hours of darkness and restricted visibility,
warning lights or flares.
(2)Â
To backfill the excavation, with materials prescribed, compacted
into eight-inch layers, and to resurface the portion of the street
disturbed by the excavation with the same material that was at the
location before the excavation, as set forth in the attached guidelines
for "Paving Maintenance and Restoration,"[1] which represent the minimum standards for completion of
the work permitted. The Borough Council may amend the guidelines for
Paving Maintenance and Restoration by resolution adopted from time
to time.
[1]
Editor's Note: The guidelines for paving maintenance and restoration
are on file in the office of the Borough Secretary.
(3)Â
Before the date of expiration of the permit, to remove all tools,
equipment, debris and other material and articles used in connection
with or accumulating by reason of the opening or excavation and the
work pertaining to the excavation.
(4)Â
To save and hold the Borough, its employees, officers, agents and
servants, harmless from and indemnify it against all actions, suits,
demands, payments, costs and charges for or by reason of the opening
or excavation, and all damages to persons or property resulting in
any manner from the opening or excavation, or occurring in the prosecution
of the work connected with it or from any other matter, cause or thing
relating to it at any time when the permit is in effect and for a
period of one year after the date of expiration of the permit, provided
a permit holder who occupies a street under a franchise previously
granted by the Borough shall also be responsible for adhering to any
conditions contained in that franchise pertaining to the subject matter
of this article or to making, guarding or refilling openings or excavations
in streets or restoring the surfaces of the street afterward.
(5)Â
To provide satisfactory written evidence that the permittee has in
force and will maintain public liability insurance of not less than
$1,000,000 for any one person and $1,000,000 in the aggregate and
property damage insurance of not less than $500,000 from a duly licensed
insurance company authorized to do business in this commonwealth.
(6)Â
To contact and comply with the Pennsylvania One Call System.
(7)Â
To secure and clearly mark equipment or vehicles that remain overnight
so as not to create a threat to the health, safety or welfare of any
Borough resident or to anyone using streets located within the Borough.
(8)Â
Except in the event of an emergency as defined in § 205-5 below, at least 24 hours prior to the start of excavation or street opening, the permittee shall notify the Borough or its designated agent as indicated in the permit application to schedule an inspection for the work. No work shall occur without notification and inspection by the Borough or its designated agent except in the event of an emergency as defined in § 205-5 below.
(9)Â
In the event the permittee fails to notify the Borough or its agent
and have such inspection, the permittee shall be required to reopen
the area of the street restored so that the Borough or its agent may
inspect the backfilled area as required herein.
B.Â
Restoration of surface.
(1)Â
The permittee shall restore the surface of all streets broken into
or damaged as a result of the excavation work to the street's original
condition. The permittee may be required to place a temporary surface
over openings made in paved traffic lanes. Except when the pavement
is to be replaced prior to the opening of the cut to traffic, the
fill above the bottom of the paving slab shall be made with suitable
material, well tamped into place, and the fill shall be topped with
a minimum of at least one inch of bituminous mixture which is suitable
to maintain the opening in good condition until permanent restoration
can be made. The crown of the temporary restoration shall not exceed
one inch above the adjoining pavement. The permittee shall exercise
special care in making such temporary restorations and must maintain
such restorations in safe traveling condition until such time as permanent
restorations are made. The asphalt which is used shall be in accordance
with the specifications of the Borough Engineer. If, in the judgment
of the Borough Engineer, it is not expedient to replace the pavement
over any cut or excavation made in the street upon completion of the
work allowed under such permit by reason of the looseness of the earth
or weather conditions, the Borough Engineer may direct the permittee
to lay a temporary pavement of wood or other suitable material designated
by him over such cut or excavation, to remain until such time as the
repair of the original pavement may be properly made.
(2)Â
Permanent restoration of the street shall be made by the permittee
in strict accordance with the guidelines for Paving Maintenance and
Restoration.[2] Disturbed portions of the street, including but not limited
to slopes and appurtenances and structures such as guide rails, curbs,
signs, markings, drainpipes, driveways and vegetation, shall be restored
by the permittee to a condition at least equal to that which existed
before the start of work authorized by the permit. Additional restoration
may also be required, upon written notification, to restore the structural
integrity of the pavement or shoulder.
(a)Â
If the permittee opens pavement having bituminous concrete surface, and the Borough street's wearing course is less than five years old, the permittee shall, in addition to the restoration conditions outlined in the permit and this Article I, overlay the pavement in accordance with the following conditions:
[1]Â
When a single transverse opening has been made in the pavement, or
when multiple transverse openings have been made that are more than
100 linear feet apart, the permittee shall overlay the traffic lanes
in which each opening was made for at least 10 feet on each side of
each opening in a manner authorized by the Borough.
[Added 1-5-2022 by Ord. No. 2022-1[3]]
[3]
Editor's Note: This ordinance also redesignated former Subsection
B(2)(a)[1] through [5] as Subsection B(2)(a)[2] through [6], respectively.
[2]Â
When a longitudinal opening longer than 100 linear feet has
been made in the pavement, the permittee shall overlay the traffic
lanes in which the opening was made for the entire length of the street
that was opened, in a manner authorized by the Borough.
[3]Â
When two or more transverse openings have been made within 100
linear feet of pavement, the permittee shall overlay traffic lanes
in which the openings were made for the entire length of the street
between the openings, in a manner authorized by the Borough.
[4]Â
When four or more emergency openings have been made by the same
permittee within 200 linear feet of pavement within any twelve-month
period, the permittee shall overlay traffic lanes in which the openings
were made for the entire length of the street between the openings,
in a manner authorized by the Borough.
[5]Â
If disturbance lanes adjacent to undisturbed lanes are overlayed,
the edge of the disturbed lane shall be saw cut or milled to a depth
of 11Â 1/2 inches or the depth of the existing surface course,
whichever is less, for the length of the opening to ensure a smooth
joint, with proper elevation and cross section. A full-width overlay
may be authorized on various streets instead of saw cutting or milling
the disturbed lane.
[6]Â
If disturbed lanes adjacent to shoulders are overlayed, the
shoulder shall be raised, with material and in a manner authorized
by the Borough for the type of existing shoulder, so that the overlaid
pavement and shoulder edges are at the same elevation.
(b)Â
Regardless of the age of the wearing course:
[1]Â
If more than 100 linear feet of longitudinal or transverse openings,
or both, are made in the pavement, the Borough may require the permittee
to overlay traffic lanes in which the openings were made for the entire
length of street that was opened, if the Borough determines that the
rideability or structural integrity of the pavement has been impaired
by the openings.
[2]Â
If four or more openings are made by the same permittee within
200 linear feet of pavement within any twelve-month period, the Borough
may require the permittee to restore the entire disturbed pavement
between the openings by milling, planning or other authorized method
and overlaying the entire disturbed pavement.
[3]Â
Acceptance or approval of any excavation work by the Borough
Engineer shall not prevent the Borough from asserting a claim against
the permittee for defective work if discovered within 24 months from
the completion of the excavation work. Further, the Borough Engineer's
presence during the performance of any excavation work shall not relieve
the permittee of its responsibilities hereunder.
[2]
Editor's Note: The guidelines for paving maintenance and restoration
are on file in the office of the Borough Secretary.
If any work required under a permit issued under this Article I shall not be completed within the time required by the permit or shall not be completed and maintained as required in § 205-3 above by the permit holder, Council or the person designated for the purpose by Council shall have authority to have the work completed or rectified, as the case may be, by Borough personnel or by any person or firm engaged by Council for the purpose. Any settlement of the surface within the said one-year period shall be determined to be conclusive evidence of defective workmanship, and the Borough may use any or all of the deposit or proceeds against such bond to perform the necessary repair work. The cost of such work including design, engineering and legal fees, with an additional charge of 10%, shall be charged to the permit holder and shall be due and payable to the Borough within 30 days of the date of such invoice. In the event the permit holder fails to pay said invoice, the deposit or surety bond filed with the Borough under § 205-1 shall be used as a source for the money due from the permit holder under this section, and if the deposit or bond is not sufficient, the amount remaining due shall be collected from the permit holder by the Borough. The Borough may collect such amounts due through any legal means, including, but not limited to, an action in assumpsit and the Municipal Lien and Tax Claim Law.[1] No subsequent permit shall be issued to any person who
owes any amount to the Borough under this section.
[1]
Editor's Note: See 53 P.S. § 7101 et seq.
In case of any emergency resulting from the breaking of any pipe or main, an explosion or other unforeseen occurrence, the person responsible for the maintenance of the pipe, main or other facility involved in the emergency may proceed with the opening or excavation of the street, as necessary to remedy the condition and to make necessary repairs, without first having applied for and obtained the permit required under this Article I, but, within 72 hours after the occurrence of the emergency, he shall apply for and obtain a proper permit, following the same procedures and adhering to all other requirements that would have applied had he applied for and obtained the permit in advance.
A.Â
Any permit issued under this article may be revoked by Jacobus Borough
after notice for violation of any condition of the permit or violation
of any provision of this article or any other applicable ordinance
or law relating to the work.
B.Â
In the event that any work performed by or for a permittee shall,
in the opinion of the Borough Engineer, be unsatisfactory, and the
same shall not be corrected in accordance with the Borough Engineer's
instructions within the time fixed by the Borough Engineer, or in
the event the work for which the permit was granted is not completed
within the time fixed by the Borough Engineer, the Borough may proceed
to correct such unsatisfactory work or complete or cause to be completed
any such work not completed and charge the costs thereof, plus 15%,
to the permittee or his surety. Written notice of such violation or
failure to complete the work shall be served upon the permittee and
his agent or employee engaged in performing the work. Such notice
shall contain a brief statement of the reasons for revoking such permit.
Notice may be given either by personal delivery or by United States
mail to such person(s) to be notified.
Any owner of real property who does not comply with the provisions
of this article shall be subject to a summary criminal proceeding
before the Magisterial District Justice as provided by the Pennsylvania
Rules of Criminal Procedure, as may be amended from time to time.
Upon a finding of a violation, a fine of not less than $450 nor more
than $1,000, plus costs of prosecution, including court costs and
reasonable attorney fees incurred by the Borough to prosecute the
violation, shall be imposed, and such person may be subject to imprisonment
of up to 15 days in the event such fines and costs are unpaid. Each
day that such violation(s) continues shall be a separate violation
of this article.