[Adopted 12-6-2017 by L.L. No. 26-2017[1]]
[1]
Editor’s Note: This local law also repealed former Art.
IV, Excavations, adopted 8-21-1985 by L.L. No. 8-1985 (Part I, Subpart
24, of the 1964 Code), as amended.
The following terms used in this article shall have the following
meanings:
Any work, process, or construction that touches, impacts,
disturbs or alters the surface or subsurface of any highway, including,
but not limited to, pavement cuts and culvert installations, and also
including road surface work and paving.
Any permit required under or pursuant to this article.
All Town-owned public places and all public streets, sidewalks,
roads, alleys, curbs, gutters and highways within the Town of Poughkeepsie,
whether established by use, dedication or otherwise, including all
paved or finished surfaces, shoulders, signage, ditches, culverts,
drains and drainage, utility and similar structures, appurtenances,
improvements, and land within the bounds of the Town highway rights-of-way.
The elected Highway Superintendent of the Town of Poughkeepsie
and the Deputy Highway Superintendent.
Those insurance coverages from time to time specified by
the Highway Superintendent for excavation permits.
A guarantee of performance, maintenance, and indemnity executed
by the applicant for the benefit of the Town in a form acceptable
to the Highway Superintendent together with:
A cash deposit; or
An unconditional letter of credit approved by the Town of Poughkeepsie;
or
A performance surety bond approved by the Town of Poughkeepsie;
or
A certificate of deposit irrevocably assigned to the Town of
Poughkeepsie; or
Any other form of undertaking as approved by the Town of Poughkeepsie;
or
Any combination of the foregoing approved by the Town of Poughkeepsie,
all in an amount and form consistent with this article and approved
by the Highway Superintendent.
This article is enacted pursuant to New York Town Law § 130,
Subdivision 7 and New York Municipal Home Rule Law §§ 10(1)(i)
and (10)(ii)(a)(6) and (9-a), (11) and (12), to regulate the manner
in which excavations may be made in or under the streets, highways,
sidewalks and public places in the Town of Poughkeepsie to protect
the health, safety and welfare of the public during excavations and
to ensure the quality, safety and longevity of Town thoroughfares
and public places.
No person, firm, corporation or other legal entity shall open
or cause or allow any highway to be opened or disturbed by cutting,
excavating, patching, paving, installing or placing anything upon
or against the surface, soil or subsurface of any Town highway or
Town-owned public place without first obtaining an excavation permit.
An application for an excavation permit, together with the fee therefor as specified in Town Code Chapter 105, or as otherwise specified by the Town Board by resolution or local law, shall be made to the Highway Superintendent upon a form(s) to be provided by the Superintendent. The application shall require the name and address of the applicant (alternatively herein, "contractor") and shall identify all person(s) and entity(ies) performing the work for the applicant; the person or entity on whose behalf the work is to be performed by the applicant; the location of the excavation; the size and purpose of the excavation; the beginning and end dates when the work is to be performed; the type of pavement or surface to be disturbed; proof of the required insurance and security called for by this article; and the materials proposed to be used in replacement; together with sketches and such additional documentation and information as the Highway Superintendent may in his/her discretion under the circumstances require, including but not limited to:
A.
Drawings, specifications, surveys and plans sealed by a New York
State-licensed engineer, architect or surveyor.
B.
If work will be performed upon or under, or will impact any lands
outside of, the highway, right-of-way or public place, the written
consent of the owner(s) of such lands, which consent shall recite
that such owner(s) has reviewed the documents submitted with the application.
C.
Whenever required, a completed environmental assessment form ("EAF")
pursuant to the New York State Environmental Quality Review Act ("SEQRA")
shall be submitted. No permit may be issued until any required SEQRA
review process has been completed.
D.
All other permits, easements and consents which are required for
the performance of the excavation and related work.
Except as otherwise provided herein, no excavation permit shall
be issued unless the applicant shall have delivered to the Highway
Superintendent and filed with the Town Clerk proof of the required
insurance and security called for by this article.
A.
Required insurance. The applicant shall provide proof of all of the
required insurance specified by the Highway Superintendent which shall
be endorsed to eliminate the exclusion of underground damage and shall
provide for broad form property damage coverage.
B.
Security. The applicant shall execute and deliver a guarantee of performance, maintenance and indemnity (the "guarantee"; see Subsection B(1) below) for the benefit of the Town, together with a performance bond or other security therefor (as defined above) in form acceptable to the Attorney to the Town. The security shall be in an amount determined by the Highway Superintendent to cover the full cost of the excavation, whether completed by the applicant or, in the event of default, by the Town, including the cost to correct deficiencies and restore the areas in and adjacent to the excavation. The amount of security required may be increased by the Highway Superintendent in the event that the anticipated cost increases.
(1)
The guarantee shall provide that the applicant assumes sole responsibility
for the excavation and adjacent areas, and assumes all responsibility
for injury and damage resulting from any excavation or related work.
The applicant, to the fullest extent permitted by law, shall indemnify
and hold the Town of Poughkeepsie, its officers, employees and agents,
harmless from all loss, cost, expense, suits, claims and demands (together,
"claims") including but not limited to all reasonable expert, consultant
and attorneys' fees and expenses arising from or in relation
to any claim.
(2)
The guarantee and the security therefor shall provide that all work
shall be performed in accordance with the conditions of the permit
and all codes, laws, rules and regulations applicable thereto.
(3)
All surety bonds shall be issued by a company authorized to do business
in the State of New York.
C.
The guarantee, security and required insurances shall be approved
by the Town Attorney for conformity with the provisions of this article.
They shall not be deemed to limit the applicant's legal liability
for matters arising out of or in relation to the permit.
D.
Each guarantee and the security for it shall specifically provide
coverage to the Town for all actions, inactions and events occurring
during the period from when any excavation work has begun until six
months after it is completed and accepted by the Highway Superintendent.
The required insurance shall be maintained for the same period.
A.
The required guarantees of performance, maintenance and indemnity,
and security are separate and shall not be deemed to limit a public
service corporation's obligation to the Town under any undertaking
provided by it.
B.
A public service corporation may, in lieu of a separate guarantee
of performance, maintenance and indemnity for each required permit,
but not in lieu of the required insurance and security or the required
permit, file and keep on file with the Town Clerk a general guarantee
of performance, maintenance and indemnity approved as to form by the
Town Attorney.
C.
In an emergency, which shall be deemed to exist when, in the Highway
Superintendent's judgment, failure to take prompt action may
result in danger to life or public or private property, excavations
may be made by a public service corporation prior to obtaining a permit;
provided, however, that the public service corporation shall have
filed a general or job-specific guarantee of performance, maintenance
and indemnity and the required insurance as specified in this article,
and provided further that the public service corporation shall provide
notice to the Highway Superintendent as soon as practicable of the
emergency and shall also make application for the necessary permit
within 24 hours, Saturdays, Sundays and holidays not included, after
it becomes aware of the emergency.
In performing such work and excavation, the contractor shall:
A.
Preserve and protect the highway and adjoining areas from damage.
B.
Commence and complete the work as one continuous operation.
C.
Complete the work and excavation by the completion date in the permit.
D.
Restore and repair all affected areas to current requirements.
E.
Maintain at all times all safety devices, structures and procedures
required by the permit and all codes, laws and regulations, and as
required in the exercise of diligent care, all until the excavation
work has been accepted by the Highway Superintendent.
F.
Maintain at all times the security and required insurance coverage(s)
during the course of the work and for a six-month period from acceptance
of it by the Highway Superintendent.
G.
Perform the work so as not to interfere with or to minimize any obstructions
to the safe flow of traffic.
H.
Perform all backfilling and tamping with materials specified by the
Highway Superintendent (See road utility trench detail at Exhibit
A[1]) which materials shall be free from clay, loam or silt,
and which materials shall be moistened and mechanically tamped until
thoroughly compacted.
[1]
Editor's Note: Exhibit A is on file in the Town offices.
I.
For all work that will impair the provision of any public utility,
water supply, or effect any closure or partial closure of any highway,
give such notice to those that may be affected as the Highway Superintendent
may direct.
J.
Notify the Highway Superintendent by the next business day after
of the completion of the work under any permit. The applicant shall
remain responsible to maintain barricades, warning lights and other
required warning devices until the Superintendent has accepted the
excavation work or has completed the repair of the excavation.
K.
Prior to excavation, provide to the Highway Superintendent proof
that it has fully complied with all Public Service Commission and
other call-before-you-dig regulations for the protection of underground
facilities.
L.
During excavations, whenever practicable, a serviceable portion of
all highways shall be kept open for travel, and the applicant shall,
upon the direction of the Highway Superintendent, provide one or more
flagpersons to direct the flow of traffic. The Highway Superintendent
may require and for good cause may allow a detour to be established
and maintained by the contractor.
M.
Excavations shall not be performed between November 1 and April 1, except in the event of an emergency as defined in § 174-26C above. 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 Highway Superintendent.
N.
The Highway Superintendent may furnish and charge the applicant for
inspections while the work is in progress, solely to verify compliance
with the permit conditions and this article. No inspection will be
made for the purpose of reviewing, recommending, or verifying applicants'
safety procedures. The cost for each such inspection shall be the
Town's reasonable expense for the inspection services, to be
paid by the applicant by deposit in advance.
Upon the issuance of a permit, the contractor 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 Highway Superintendent 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/contractor fails to
comply with the provisions of this article, any conditions attached
to its permit and/or the directions of the Highway Superintendent,
the Highway Superintendent may, as the agent of the applicant/contractor,
install such devices and take such action as he or she deems necessary.
The applicant/contractor shall be liable for any expenses incurred
by the Town under such circumstances.
The Highway Superintendent may, after 24 hours' notice
to cure, or such lesser notice period as may be necessary in an emergency,
revoke any permit if the applicant has failed to correct any violations
thereof or any violation of the provisions of this article or any
other applicable code, law, rule or regulation during the excavation,
as follows:
A.
Written notice of violation shall be given to the applicant or its
agent engaged in the excavation. The notice shall contain a brief
statement of the violation and a demand that it be cured within 24
hours.
B.
Notice may be given either by personal delivery thereof to the applicant/contractor
or to the site of the excavation, or by e-mail, facsimile or text
to the applicant/contractor or its place of business.
C.
The failure of an applicant to cure any violation within 24 hours
shall entitle the Town of Poughkeepsie to collect and utilize any
security for any purpose related to the applicant's permit, including,
but not limited to, the repair of any damage, the completion of the
project, and the hiring of a third party to complete the project.
No default, nor the completion of the project by any third party or
the Town of Poughkeepsie shall relieve the applicant of any obligation
or expense imposed under this article, or as may otherwise be imposed
by any other law or regulation.
D.
Whenever the Highway Superintendent believes that there is an emergency condition at an excavation which endangers the public health, safety or welfare, he/she may issue a stop-work order. Immediately upon receipt of the same, delivered as provided in Subsection B above, the applicant shall cease work, secure the worksite, immediately adhere to the directions of the Superintendent and comply with all safety inspections and procedures as may be required by law, regulation, or the terms of the permit and stop-work order. Work may only recommence upon the written revocation of the stop-work order, and the cost of all work performed by or for the Highway Superintendent shall be charged against the deposit and security.
A.
The Highway Superintendent is authorized and directed to enforce
the provisions of this article.
B.
Any person who shall violate any provision of this article shall
be guilty of an offense and shall be subject to a fine of $500 to
$2,000 or to imprisonment for not more than 15 days, or both. 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.
C.
In addition to any other remedies set forth herein authorizing the
Town to enforce the provisions of this chapter, establishing penalties,
and setting forth additional remedies, the Highway Superintendent
may apply for injunctive relief, and may impose a civil penalty or
agree to a civil penalty of $100 to $500 for a first violation, and
of $500 to $1,000 for any subsequent violations not to exceed $1,000
per day for each day of the violation.
Any aggrieved person or entity may appeal any action or determination
of the Highway Superintendent to the Town Board of the Town of Poughkeepsie
by filing a written statement setting forth the reasons for such appeal.
Such statement shall be filed with the Town Clerk within five days
of the delivery or filing of any action or determination from which
the appeal is taken, time being of the essence.
A.
After performance and/or completion of any excavation work, the highway
and all affected areas shall be repaired and restored in a permanent
manner satisfactory to the Superintendent and in accord with permit
requirements and the road utility trench detail at Exhibit A[1] hereto. To the extent possible, any repair or restoration
must match the original highway and affected areas as to type, color,
structure, materials, grade, and texture, in compliance with then-current
applicable specifications therefor.
[1]
Editor's Note: Exhibit A is on file in the Town offices.
B.
Upon completion of the work and the restoration pursuant to the terms
of this article and the permit, and their acceptance of same by the
Superintendent, the security shall be retained by the Superintendent
for six months as security for the maintenance of the excavation work
in the same condition as required by this article and the permit on
the date of acceptance.
Where the Highway Superintendent finds that special circumstances
exist, a waiver of any one or more requirements of this article may
be granted for good cause shown, provided that the Highway Superintendent
finds in writing that:
A.
Granting the waiver would be keeping with the intent and spirit of
this article and is in the best interests of the community.
B.
There is no adverse effect upon the highway or any surrounding area.
C.
There is no adverse impact upon the ability to safely travel upon
such highway.
D.
There are special circumstances involved in the particular case.
E.
Denying the waiver would result in undue hardship which has not been
self imposed.
F.
The waiver represents the minimum necessary to achieve the desired
result.
During the "winter work season," which is hereby defined as
November 1 through April 1, annually, permits will be issued only
for emergency work. In the event that a winter work permit is issued,
the following remediation requirements apply:
A.
All highway work shall require additional materials and compaction
as determined by the Highway Superintendent.
B.
Temporary pavement and road surface restorations may be permitted
by the placement and compaction of a minimum of two layers of dust-bound
crushed stone, each of a compacted thickness of four inches on the
prepared subgrade, followed by a layer of bituminous concrete, winter
mix, six inches in compacted thickness, on top.
C.
No frozen material shall be placed in the excavation areas.
D.
As early as spring weather permits, after notice to and with the
consent of the Highway Superintendent, the excavation area shall be
inspected and reconstructed in accord with normal excavation restoration
specifications.
E.
Without in any way limiting its responsibility as otherwise provided
herein or at law, notwithstanding anything which may appear to the
contrary in the permit or this article, until the restoration has
been finally accepted by the Highway Superintendent, the contractor
assumes all responsibility for the safe maintenance of the subject
excavation site.
