Borough of Indiana, PA Article II Street Excavation

[Adopted 6-6-2017 by Ord. No. 2017-03[1]]

[1] Editor's Note: This ordinance, originally adopted as Ch. 234, superseded former Art. II, Openings and Excavations, adopted 6-6-1950 by Ord. No. 595 (Chapter XXI, Part 3, Subpart B, Sections 111 to 118, of the 1971 Code of Ordinances, as amended.

§ 400-13 Short title.

This article shall be known and may be cited as the "Street Excavation Permit Ordinance."

§ 400-14 Definitions.

The following words, when used in this article, shall have the meanings ascribed to them in this section, except in those instances where the context clearly indicates otherwise:

APPLICANT

Any person or entity that makes application for a permit.

EMERGENCY

Any unforeseen circumstance or occurrence, the existence of which constitutes a clear and immediate danger to persons or properties.

MANAGER

The Manager of Indiana Borough or their authorized designee.

PERMITTEE

Any person, corporation, or entity that has been issued a permit and has agreed to fulfill all the terms of this article.

PUBLIC UTILITY COMMISSION

Any entity subject to the jurisdiction of and control by the Pennsylvania Public Utility Commission.

STREET

A public street, public easement, right-of-way, public highway, public alley, public sidewalk, public way or public road accepted or maintained by the municipality or open for travel and use by the public, whether or not so accepted or maintained, including the entire area within the right-of-way thereof.

§ 400-15 Activities requiring issuance of permit.

A. It shall be unlawful for any person or entity to make any tunnel, opening or excavation of any kind in or under the surface of any street without first securing a permit from the Manager for each separate undertaking; provided, however, that any person or entity maintaining pipes, lines or other underground facilities in or under the surface of any street may proceed with an opening without a permit when emergency circumstances demand the work to be done immediately, provided that the permit could not reasonably and practically have been obtained beforehand. In such cases where emergency openings are necessary, however, the municipality shall be notified prior to such openings by:

(1) Fax notification.

(2) Telephone notification.

(3) PA One Call.

B. The person or entity shall thereafter apply for a permit on the first regular business day on which the office of the Manager is open for business, and said permit shall be retroactive to the date when the work was begun.

§ 400-16 Work to be done pursuant to permit.

No person or entity to whom a permit has been granted shall perform any of the work authorized by such permit in any amount greater than that specified in the permit, except that where the permittee desires to perform additional work not in excess of an amount greater than 10% of the amount specified in the permit, the permittee may apply to the Manager for an amended permit to authorize the additional work. If the additional work desired to be performed by the permittee exceeds 10% of the amount specified in the original permit, an application for a new permit shall be made. Any deposit or bond posted in connection with the original permit shall be deemed to cover any such additional work as may be added pursuant to the issuance of an amended permit within the limit specified herein.

§ 400-17 Time for commencement of work.

Work for which a permit has been issued shall commence within 30 days after the issuance of the permit therefor. If not so commenced, the permit shall be terminated automatically unless the permittee applies for an extension of time within which to commence work. If such an extension is granted, the original permit shall remain in force for the period of time specified in the extension. Permits which terminate because of failure to commence work within 30 days after issuance or within any extension of time granted hereunder may be renewed only upon the payment of an additional permit fee as originally required.

§ 400-18 Time limit on permit.

Every permit shall expire at the end of the period of time which shall be set out in the permit. If the permittee shall be unable to complete the work within the specified time, he or she shall, prior to expiration of the permit, present, in writing, to the Manager a request for an extension of time setting forth therein the reasons for the requested extension. If the Manager finds that the failure to complete the work under the permit within the time specified therein was due to circumstances reasonably beyond the control of the permittee and that an extension of time to complete the work under the permit is necessary and not contrary to the public interest, the permittee may be granted additional time for the completion of the work.

§ 400-19 State and county roads.

The provisions of this article shall not be applicable in those instances where the street or highway is maintained by the Commonwealth of Pennsylvania or by Indiana County; provided, however, that any person or entity applying for a permit to do work within the right-of-way of a street or highway maintained by the Commonwealth of Pennsylvania or by Indiana County which would otherwise require a permit under the terms of this article shall notify the Manager at the time that said application is made and at the time that the work under any permit issued pursuant to said application is begun, so that proper safety precautions may be taken by the municipality during the continuation of said work.

§ 400-20 Revocation of permit.

A. Any permit may be revoked by the Manager, after notice to the permittee, for:

(1) Violation of any condition of the permit or any provision of this article.

(2) Violation of any other applicable provision of the Municipal Code or any law relating to the work.

(3) The creation of any condition or the doing of any act constituting or creating a nuisance or endangering the life or property of others.

B. The permittee shall be granted a period of three days from the date of the notice to correct the violation and to proceed with the diligent prosecution of the work authorized by the permit before said permit is revoked.

C. Written notice of any such violation or condition shall be served upon the permittee or his/her agent engaged in the work. The notice shall contain a brief statement of the reasons for revoking the permit. Notice may be given either by personal delivery thereof to the person or entity to be notified or by certified or registered United States Mail addressed to the person or entity to be notified.

D. When any permit has been revoked and the work authorized by the permit has not been completed, the Manager shall do or cause to be done such work as may be necessary to restore the street or part thereof to its original condition prior to the excavation. All expenses thereby incurred by the municipality shall be recovered from the deposit or bond the permittee has made or filed with the municipality.

§ 400-20.1 Requirements and specifications.

A. In addition to all other requirements of this article, any natural person, association, partnership, firm, corporation, municipal authority, public utility, or government entity performing work that collectively equals 30 linear feet of opening or excavation between any two intersections during a construction or excavation project within a calendar year shall pave the street from center line to curb on each side of the street in which work is performed.

[Added 6-16-2020 by Ord. No. 2020-03[1]]

[1] Editor's Note: This ordinance also redesignated former Subsections A through N as Subsections B through O, respectively.

B. No opening or excavation in any street shall extend beyond the center line of the street before being backfilled and the surface of the street temporarily restored.

C. No more than 250 feet measured longitudinally shall be opened in any street at any one time, except by special permission of the Manager.

D. All utility facilities shall be exposed sufficiently, or their definite location shall be determined ahead of trench excavation work to avoid damage to those facilities and to permit their relocation, if necessary.

E. Pipe drains, pipe culverts or other facilities encountered shall be protected by the permittee.

F. Any person whose facilities are damaged or caused to be relocated by the permittee shall notify the permittee and the municipality of such damage and thereafter may make the necessary repairs or relocation and file a claim against the permittee for the cost of such repairs or relocation. Public utility companies concerned shall be notified by the municipality in sufficient time to determine the validity of the damage or relocation claims. The cost of such repair work or relocation work may be withheld by the Manager from the deposit pending determination of liability for the damage.

G. Monuments of concrete, iron or other lasting material set for the purpose of locating or preserving the lines of any street or property subdivision or a precise survey reference point or a permanent survey benchmark within the municipality shall not be removed or disturbed or caused to be removed or disturbed unless permission to do so is first obtained, in writing, from the Manager. Permission shall be granted only upon the condition that the permittee shall pay all expenses incident to the proper replacement of the monument.

H. When work performed by the permittee interferes with the established drainage system of any street, provision shall be made by the permittee to provide proper drainage.

I. Any earth, gravel or other excavated material must be maintained with the use of erosion and sediment controls. Additionally, when any earth, gravel or other excavated material is caused to flow, roll or wash upon any street, the permittee shall cause removal of the same from the street within eight hours after deposit to permit safe flow of traffic. In the event that the earth, gravel or other excavated material so deposited is not removed as specified, the Manager shall cause such removal, and the cost incurred shall be paid by the permittee or deducted from his/her deposit.

J. Every permittee shall place around the project such barriers, barricades, lights, warning flags and danger signs as shall be determined by the Manager to be necessary for the protection of the public. Additional safety requirements may be prescribed by the Manager and, where applicable, shall be in conformance with the requirements set forth in 67 Pa. Code Chapter 212, relating to work zone traffic control. Copies of the publication shall be made available in the office of the Manager for inspection by the public.

(1) Whenever any permittee fails to provide or maintain the required safety devices, such devices shall be installed and maintained by the municipality. The amount of the cost incurred shall be paid by the permittee or deducted from his/her deposit.

(2) No person shall willfully move, remove, injure, destroy or extinguish any barrier, warning light, sign or notice erected, placed or posted in accordance with the provisions of this section.

(3) Permittees are required to maintain erosion and sedimentation (E & S) controls.

K. Access to private driveways shall be provided except during working hours when construction operations prohibit provision of such access. Free access must be provided at all times to fire hydrants. Owner and/or renters must be notified at least two days prior to the closing of any access aisle before any work can commence.

L. Excavated materials shall be laid compactly along the side of the trench and kept trimmed up so as to cause as little inconvenience as possible to public travel. In order to expedite the flow of traffic or to abate dirt or dust nuisance, the Manager may require the permittee to provide toe boards or bins; and if the excavated area is muddy and causes inconvenience to pedestrians, temporary wooden plank walks shall be installed by the permittee as directed by the Manager. If the street is not wide enough to hold the excavated material without using part of the adjacent sidewalk, the permittee shall keep a passageway at least 1/2 the sidewalk width open along such sidewalk line. The permittee is responsible for proper pedestrian traffic controls at all times. When required by the manager, "sidewalk closed" and directional signs must be utilized to direct pedestrians to use the opposite side of the street.

M. Work authorized by a permit shall be performed between the hours of 7:00 a.m. and 7:00 p.m., Monday through Saturday, unless the permittee obtains written consent from the Manager to do the work at an earlier or later hour. Such permission shall be granted only in the case of an emergency or in the event that the work authorized by the permit is to be performed in traffic-congested areas.

N. In granting any permit, the Manager may attach such other conditions thereto as may be reasonably necessary to prevent damage to public or private property or to prevent the operation from being conducted in a manner hazardous to life or property or in a manner likely to create a nuisance. Such conditions may include, but shall not be limited to:

(1) Limitations on the period of the year in which the work may be performed.

(2) Restrictions as to the size, weight and type of equipment.

(3) Designation of routes upon which materials may be transported.

(4) Designation of the place and manner of disposal of excavated materials.

(5) Requirements as to the laying of dust, the cleaning of streets, the prevention of noise and other results offensive or injurious to the neighborhood, the general public or any portion thereof.

(6) Regulations as to the use of streets in the course of the work.

O. Hydra-hammer, headache ball. The use of mechanical devices for the breaking of pavement, such as a hydra-hammer, headache ball, etc., will be permitted only under special written permission of the Manager.

§ 400-20.2 Restoration.

A. All pavement cuts, openings and excavations shall be made properly and backfilled properly by the permittee according to Indiana Borough specifications using PennDOT PUB 408 regulations. Unless the permittee has been granted permission to restore the street surface, as provided in Subsection D, the permittee also shall place a temporary cold patch a maximum of three inches on the pavement cut, opening or excavation in accordance with municipal specifications. If the permittee has been granted permission to restore the street surface, but weather conditions are such as to prevent the completion of permanent restoration of the street surface at the time backfilling is completed, the permittee shall install a temporary surface in accordance with municipal specifications until such time as weather conditions will permit permanent restoration of the street surface.

B. The Manager shall be notified by the permittee during the forty-eight-hour periods preceding the beginnings of backfilling and restoration and the approximate time each will be begun.

C. No backfilling or restoration shall be accomplished unless or until the Manager or his/her designee is present or permission has been granted for backfilling or restoration after inspection by the Manager or his/her designee.

D. The work of final restoration, including both paving surface and paving base, shall be performed directly by the permittee or agent under the supervision of the Manager. All restoration work shall be performed by the permittee according to Indiana Borough specifications and shall be subject to inspection by the municipality.

E. If the Manager finds that paving surfaces adjacent to the street openings may be damaged where trenches are made parallel to the street or where a number of cross trenches are laid in proximity to one another or where the equipment used may cause such damage, he or she may require negotiated contributions from the permittee for the resurfacing in place of patching of such street if the total area of the proposed patch or damaged area exceeds 25% of the total pavement surfacing between curb faces or between concrete gutter edges. Such negotiations shall be carried on and contributions agreed upon prior to issuance of a permit.

F. After excavation is commenced, the work of making and backfilling the same shall be prosecuted with due diligence. Unless the provisions of Subsection A of this section apply, the permittee is required to complete permanent restoration of the street surface in accordance with municipal specifications within 30 days after repairs and/or installation are completed. Furthermore, the permittee shall be required to install and maintain a temporary surface in accordance with municipal specifications during:

(1) The period between the completion of repairs and/or installation and the commencement of final restoration; and

(2) The periods during the actual work when workers do not require access to the excavation.

G. Inspections of all work authorized by a permit shall be made by the Manager at such times and in such manner as required to assure compliance with provisions of this article. If the nature of the work to be performed under any permit is such as to require the services of a full-time inspector, the Manager shall provide for the services of such an inspector.

H. All inspection costs shall be borne by the permittee. Such costs shall be based upon a schedule of charges on file in the office of the Manager.

I. Upon completion of all work accomplished under the provisions of a permit, the permittee shall notify the Manager, in writing. A certificate of final inspection shall be issued by the Manager to each permittee no sooner than one year and not later than 18 months after the permanent restoration of the excavation has been made, provided that the work authorized by the permit has been performed according to municipal specifications. Prior to the issuance of a certificate, the Manager shall make a final inspection of the restoration to determine whether municipal specifications have been adhered to.

J. If any settlement in a restored area occurs within a period of 18 months from the date of completion of the permanent restoration and the permittee fails to make such correction after notification, any expense incurred by the municipality in correcting such settlement shall be paid by the permittee or recovered from his/her bond, unless the permittee submits proof, satisfactory to the Manager, that the settlement was not due to defective backfilling.

§ 400-20.3 Deposit.

A. Computation of deposit. The Manager, upon receipt of a properly completed application, shall determine the amount of the deposit to be made by the permittee in accordance with the fee schedule; provided, however, that the minimum deposit required shall be $2,400 plus the cost of the street excavation permit. The deposit shall be paid at the time the permit is issued, and the deposit shall be used to reimburse the municipality for the cost of any work and/or materials furnished by it in connection with work authorized by the permit, to cover the cost of all necessary inspections of said work or any other expenses incurred by the municipality in carrying out the provisions of this article.

B. Form of deposit. The deposit may be either in the form of a certified, treasurer's or cashier's check or in lawful money of the United States.

C. Insufficient deposit. If any deposit is less than sufficient to pay all costs, the permittee shall, upon demand, pay to the municipality an amount equal to the deficiency. If the permittee fails or refuses to pay such deficiency, the municipality may institute an action to recover the same in any court of competent jurisdiction. Until such deficiency is paid in full, no additional permits shall be issued to such permittee.

D. Yearly deposit. Whenever any public utility company shall anticipate applying for permits for more than one street opening or excavation per calendar year and does not elect to file a corporate bond as hereinbefore provided, such public utility company may post one deposit in an amount and form as hereinbefore provided for the calendar year or part thereof to cover the cost of deposits which would otherwise be required for the anticipated permits.

E. Deposit and cost schedules. The Manager shall establish a schedule of charges for inspections, labor, materials and other such expenses as may be incurred by the municipality in carrying out the provisions of this article. This schedule shall be established by the Manager in accordance with the reasonably anticipated costs to be incurred by the municipality in making such inspections, including reasonable administrative and overhead expenses, and in accordance with the currently prevailing costs in the area for any labor and materials which may be provided by the municipality. The Manager shall revise said schedule from time to time to reflect any increase or decrease in the costs used to establish said charges. The schedule shall be open to public inspection in the office of the Manager upon request.

F. Decision on costs. The decision of the Manager as to the cost of any work done or repairs made by a permittee under his/her direction, pursuant to the provisions of this article, shall be final and conclusive as to such cost.

G. Refund of deposit. Upon notification by the permittee that all work authorized by the permit has been completed and after restoration of the opening, the Manager shall refund to the permittee his/her deposit, less all costs incurred by the municipality in connection with said permit. In no event shall the permit fee be refunded.

§ 400-20.4 Performance bond.

A. A performance bond is required by Indiana Borough to perform the restoration work. Each applicant or permittee, upon receipt of a permit, shall provide the municipality with an acceptable corporate surety bond to guarantee faithful performance of the work authorized by a permit granted pursuant to this article. The amount of the bond shall be 110% of the estimated cost of restoring the street opening. The term of the bond shall begin upon the date of posting thereof and shall terminate 18 months upon the receipt by the permittee of a certificate of final inspection from the Manager. If the permittee anticipates requesting more than one permit per year, as required by this article, he or she may furnish one continuing corporate surety bond to guarantee faithful performance in such amount as the Manager deems necessary. The amount of such bond shall be in relation to the cost of restoring pavement cuts to be made by the permittee throughout the year. In the case of a public utility company, its corporate bond, in a form satisfactory to the Solicitor, may be accepted in lieu of the corporate surety bond required by this section.

B. Default in performance. Whenever the Manager shall find that a default has occurred in the performance of any term or condition of the permit, written notice thereof shall be given to the principal and to the surety on the bond. Such notice shall state the work to be done, the estimated cost thereof and the period of time deemed by the Manager to be reasonably necessary for the completion of such work.

C. Completion of work. After receipt of such notice, the surety must, within the time therein specified, either cause the required work to be performed or, failing therein, indemnify the municipality for the cost of doing the work as set forth in the notice.

§ 400-20.5 Liability insurance.

Each applicant, upon the receipt of a permit, shall provide the municipality with an acceptable certificate of insurance indicating that he or she is insured against claims for damages for personal injury as well as against claims for property damage which may arise from or out of the performance of the work, whether such performance is by himself or herself, his/her subcontractor or anyone directly or indirectly employed by him or her. Such insurance shall cover collapse, explosive hazards and underground work by equipment on the street and shall include protection against liability arising from completed operations. The amount of the insurance shall be prescribed by the Manager in accordance with the nature of the risk involved; provided, however, that the liability insurance for bodily injury shall be in an amount no less than $500,000 for each person and $500,000 for each accident, and for property damages, in an amount no less than $1,000,000, with an aggregate of $500,000 for all accidents. Public utility companies and authorities may be relieved of the obligation of submitting such a certificate if they submit satisfactory evidence that they are insured in accordance with the requirements of this article or have adequate provision for self-insurance. Public utility companies may file an annual certificate of insurance in lieu of individual certificates for each permit.

§ 400-20.6 Violations and penalties.

Any person or entity who shall violate any provision of this article shall, upon conviction thereof, be sentenced to pay a fine of not more than $600; and in default of payment, to imprisonment for a term not to exceed 90 days. Every day that a violation of this article continues shall constitute a separate offense.

§ 400-20.7 Severability.

If any provision of this article, or any subsection thereof, is found to be illegal or invalid, such illegality or invalidity shall not affect or impair any of the remaining provisions of this article, or any subsections thereunder. It is hereby declared as the intent of the Borough that this article would not have been enacted if any per se illegal or invalid provisions were included herein. If any such provision would be found to exist, such invalid provision would be stricken.

§ 400-20.8 Repealer.

Any other ordinance provision(s) or regulation of the municipality inconsistent with any of the provisions of this article is hereby repealed to the extent of the inconsistency only.

§ 400-20.9 When effective.

This chapter is necessary for the immediate preservation of the public peace, health, safety, morals and general welfare of the residents of the Borough, and shall take effect and be in full force immediately after its passage, execution and publication.