[HISTORY: Adopted by the Borough Council of the Borough of Conway as indicated in article histories. Amendments noted where applicable.]
[Adopted 3-16-2016 by Ord. No. 554,[1] approved 3-16-2016]
[1]
Editor's Note: This ordinance also repealed former Ch. 104, Streets and Sidewalks, which consisted of Art. I, Excavations in Streets, adopted 4-9-1979 by Ord. No. 365, approved 4-9-1979; Art. II, Maintenance; Obstruction; Use, adopted 6-14-1976 by Ord. No. 346, approved 6-14-1976; Art. III, Penalties, adopted 6-14-1976 by Ord. No. 346, approved 6-14-1976; and Art. IV, Sidewalk and Curb Construction, adopted 9-8-1913 by Ord. No. 65.
The following words, when used herein, shall have the meanings ascribed to them in this section, except in those instances where the context clearly indicates otherwise:
APPLICANT
Any person, as defined herein, who makes application for a permit.
BOROUGH
The Borough of Conway, Beaver County.
DEGRADATION FEE
A fee charged for the excavation/opening of a road that has been constructed or resurfaced within seven years of the date of application for a street opening permit.
EMERGENCY
Any unforeseen circumstance which calls for immediate action.
ENGINEER
The Borough Engineer of the Borough of Conway, Beaver County, who shall be a registered professional engineer in the State of Pennsylvania, or his authorized representative or inspector.
FOREMAN
The Borough Foreman of Public Works, or his designee.
PERMIT
The approval issued to an applicant to perform any work covered by the terms and conditions of this article.
PERMITEE
Any person who has been issued a permit and has thereby agreed to comply with all the terms and conditions of this article.
PERSON
Includes any natural person, partnership, firm, association, corporation, municipal authority or any other governmental entity.
ROADWAY
Any public street, highway, road, easement, right-of-way or alley within and under the jurisdiction of the Borough of Conway, Beaver County, including that portion of any right-of-way which is improved and may have curbs and/or sidewalks.
WORK
Any and all activities of any kind or nature conducted by a permittee, his agents, servants, employees, contractors and subcontractors, which involves, to any extent, any roadway of the Borough of Conway, Beaver County.
A. 
Permit required. No person shall make any tunnel, opening or excavation of any kind in, on or under the surface of any roadway, without first securing a permit from the Borough for each separate undertaking. Any person maintaining pipes, lines or underground conduits, in or under the surface of any roadway by virtue of any permit, authorization, statute, ordinance or franchise may, however, proceed with an excavation or opening without a permit when emergency circumstances demand that the work be done immediately for the preservation of the public health, safety or welfare, and, provided further, that a permit could not reasonably and practically have been obtained beforehand. Such person performing the emergency excavation shall, thereafter, file an application for a permit, in accordance with the requirements of this article, on the first business day of the Borough, which permit shall be retroactive to the date on which the emergency work was begun. The final determination as to whether a situation is to be considered an emergency shall be made by the Engineer or Foreman.
B. 
Limitation. No permittee shall perform any work beyond that originally authorized under this permit to an extent greater than 10% in excess of that specified in the permit, unless such excess work is approved, in advance, by either the Foreman or Engineer and the Borough is paid any additional fees occasioned thereby. Upon completion of any additional work which is not covered by the original permit, the permittee shall file a revised application with the Borough reflecting the revised scope.
C. 
Bonds. All bonds posted in connection with issuance of the permit shall be deemed to cover all work which is covered by any permit issued pursuant to this section.
D. 
Emergency exploratory excavation. The provisions of this section shall not apply to emergency excavations of any exploratory nature made in order to determine the location of underground facilities; however, the person doing the work shall, on the first day which the office of the Borough is open for business following completion of the excavation, file an application for a permit in accordance with the requirements of this article, which permit shall be retroactive to the date the excavation was begun.
E. 
Commencement of work. The work for which a permit is issued shall be commenced within 60 days from the date of its issuance. If the work is not commenced by that date, the permit shall automatically be considered as revoked and, thereafter, a new permit for the work will only be issued upon payment of a new permit fee and the renewal of all necessary bonds. The permittee shall notify either the Foreman or Engineer, at least 24 hours in advance, as to the date and time when the work will be commenced.
F. 
Nontransferable and nonrefundable. A permit is not transferable by the permittee to any other person and the permit fees shall be nonrefundable.
G. 
Expiration. A permit shall terminate at the end of the period of the time specified in the permit or upon completion of the work, whichever occurs first. If the permittee is unable to complete the work within the time specified in the permit, he shall, prior to its termination, request an extension of time from either the Foreman or Engineer, in writing, the Foreman or Engineer to be provided with the reason for the requested extension. If the Foreman or Engineer determines that an extension is necessary, he may grant the permittee such additional time as he deems appropriate for completion of the work, subject to an extension fee as set by resolution of the Borough.
H. 
Right to use roadway. All permits shall be issued subject to the rights of the Borough and the public to use any roadway which is the subject of the permit, for all purposes for which such roadway may lawfully be used.
I. 
Revocation. A permit may be revoked by the Foreman or Engineer, after written notice to the permittee, as the result of any one of the following:
(1) 
A violation of any condition of the permit.
(2) 
A violation of any provision of this article or any other applicable statute, ordinance or regulation relating to the work.
(3) 
The existence of any condition or the performance of any act by the permittee which constitutes or creates a nuisance or which endangers the safety or property of the public.
(4) 
Written notice of the revocation shall be served upon the permittee or his agent. The notice shall contain a brief statement of the reason for the revocation and it shall be effective if delivered either by personal delivery to the permittee, or his agent, or by mailing same to the permittee at the address on the application, by placing same in the United States Postal Service, certified mail, return receipt requested.
In order to receive a permit the applicant shall:
A. 
Complete and file a written application with the Borough Secretary on the application form prescribed and furnished by the Borough.
B. 
No work shall be commenced by the applicant until the Foreman or Engineer has approved the application and the permit has been issued, other than under those exceptions set forth in § 104-2, above, which pertain to emergency work. By the filing of the application for a permit, the applicant agrees that he shall perform the work in accordance with the terms of this article, the permit, as issued, and all applicable laws and regulations pertaining thereto and that he shall be bound, in all respects, by the terms and conditions of this article.
C. 
If not set forth on the application form itself, the applicant shall file three copies of all plans which show the extent of the proposed work for which the permit is being requested. Such plans shall include all appropriate dimensions and other information which may be required by the Foreman or Engineer. In addition, the applicant shall provide three copies of suitable color photographs of the proposed work area(s) documenting the conditions which exist prior to the start of any construction activities.
D. 
Pay to the Borough, at the time of filing of the application, such fees for the permit as set forth below as may be amended or added from time to time, by resolution of the Borough.
(1) 
Application fee: $35.
(2) 
Degradation fee:
(a) 
Less than one year: $30 square yard.
(b) 
One to two years: $25 square yard.
(c) 
Three to five years: $20 square yard.
(d) 
Five to seven years: $10 square yard.
(3) 
Inspection fees: Actual cost of fees of Borough Engineer or other consultant.
E. 
Furnish such certificates of insurance as are required by § 104-6, below.
F. 
Post the permit bond as required by § 104-7, below.
G. 
Present evidence, if requested by the Foreman or Engineer, that all material, labor and/or equipment necessary to accomplish the work are available to the applicant.
H. 
A copy of the permit shall, at all times while the work is in progress, be available at the site of the work and it shall be produced, upon demand, to any authorized representative of the Borough.
I. 
Agree, by the filing of his application, to save the Borough, its Council Members, officers, employees and agents harmless and to indemnify all, or any of them, from any and all claims, damages, suits, liabilities and costs which may arise, or be claimed to arise, by reason of the work, either as authorized or as actually undertaken by the permittee. The issuance of a permit, or the doing of any work provided for by this article, shall constitute the agreement, by the person doing the work, to the provisions of this subsection, irrespective of whether same is expressed elsewhere.
A. 
No excavation in any roadway shall extend beyond the center line of such roadway until the surface of the initial excavation is restored to a condition which shall provide safe and convenient access for pedestrian and vehicular traffic. At no time will the improved part of a roadway be completely closed to vehicular or pedestrian traffic, unless such closing is authorized, in advance and in writing, by the Foreman or Engineer. If such closure is required, a traffic control plan shall be prepared for approval by the Engineer with appropriate signage installed and maintained by permittee to safeguard vehicular and pedestrian traffic until the roadway is reopened. Prior to any roadway closures the permittee shall provide notice of such closures to the Borough Police Department, the Borough Secretary, Fire Department, the Freedom Area School District and to the Beaver County Transit Authority if impacted by the road closure.
B. 
No more than 30 feet, measured longitudinally, of any roadway shall be opened until such time as the previously opened surface of the roadway is restored to a safe and convenient condition for vehicular or pedestrian traffic unless such opening is authorized, in writing, by the Foreman or Engineer.
C. 
If four or more cumulative openings are made within 200 linear feet of pavement, the Engineer may require the permittee to restore the entire disturbed pavement including the area between the openings by milling or other approved method of preparation and resurfacing 1/2 the roadway (center line to curb) where openings are limited to a single lane or 1/2 of the road width. In instances where the permittee has made openings on both sides of the center line of a road, the Engineer may require that the permittee restore the entire width of the roadway (curb to curb) by milling or other approved method of preparation and resurfacing the entire length of the openings plus 50 feet past the end of the openings and in compliance with all other Borough specifications.
D. 
For any street that has been repaved in the past three years, the permittee shall be required to mill/pave/restore/resurface a minimum of 1/2 of the road when openings have been limited to a single lane or 1/2 of the road width. In instances where the permittee has made openings on both sides of the center line of a road, the Engineer may require that the permittee restore the entire width of the roadway (curb to curb) by milling or other approved method of preparation and resurfacing the entire length of the openings plus 50 feet past the end of the openings and in compliance with all other Borough specifications.
E. 
No excavation shall be made, or attempted, if it shall or may interfere with any utility lines or other underground facilities, unless the permittee has first secured the permission of the owners of all such facilities.
F. 
The permittee shall locate all underground facilities, including sanitary sewers, storm sewers, gas lines, water lines, telephone and electrical conduits and all other underground facilities, sufficiently in advance of the commencement of the work in order that damage to any such facilities be avoided, as well as to permit their relocation, if necessary. The permittee shall also comply with all the utility notification requirements of any applicable law.
G. 
If an underground facility is damaged by the permittee, such damage shall be repaired and/or restored by the permittee, as necessary in accordance with the directions of the owner of the facility.
H. 
No monument of granite, concrete, iron, steel, brass or other lasting material shall be removed or disturbed, or caused to be removed or disturbed, without the permittee first obtaining permission, in writing, from the Foreman or Engineer to do so, in which case the permittee shall pay the Borough for all its expenses, including surveys, necessary and incidental to all restoration or replacements of such monuments by the Borough.
I. 
If a permittee shall cause any earth, sand, gravel, rock, stone or other material to be either deposited upon or caused to roll, flow or wash onto any roadway and there is thereby created a nuisance or a danger to the public health and safety, the permittee shall cause all such material to be promptly removed from the roadway. In the event any such material is not removed within eight hours after notification to the permittee by the Foreman or Engineer to do so, the Borough may then take all steps necessary to accomplish such removal, the costs of the removal to be paid to the Borough by the permittee.
J. 
The permittee shall, where required, provide flagmen and place all such barriers, barricades, lights, warning flags, danger signs and other safety devices around the work area as are reasonably necessary to protect the health and safety of the public. All such safety requirements and precautionary measures shall be based upon and conform, as applicable, to the requirements set forth in Pennsylvania Department of Transportation Publications 212 and 213, latest editions. The permittee shall also comply with any traffic control plan which forms part of the permit. In the event the permittee fails to comply with the provision of this subsection, the Borough may take the necessary steps to compel compliance, all costs incurred Borough in so doing shall be paid to it by the permittee.
K. 
At all times while the work is in progress and prior to its completion, the permittee shall maintain safe crossings for pedestrian and vehicular traffic at all roadway intersections and, in addition, safe crossings for pedestrians at intervals of not more than 300 feet. Two lanes of traffic shall, where possible, be kept open at all intersections by the installation of steel plates adequate to support all traffic loads. All such steel plates shall be firmly secured and, where appropriate, imbedded in bituminous material so as to withstand the normal flow of traffic without displacement. If the size and character of the excavation makes it impractical to use steel plates, the permittee shall so advise the Foreman or Engineer at the time the application for the permit is filed and the work shall not commence until the Foreman or Engineer consents to the omission of the steel plates.
L. 
The permittee shall maintain vehicular access to all private driveways, except during working hours when construction operations prohibit such access, the owner of any driveway which is affected to be notified of such nonaccess, by the permittee, prior to the commencement of the specific work. The permittee shall also insure that there is free access, at all times, to the fire hydrants in the area covered by the scope of the work.
M. 
To the extent that any excavated material may be permitted as backfill material, all such excavated material shall be placed compactly along the side of the trench so as to cause as little inconvenience and danger as possible to vehicular and pedestrian traffic. When the Foreman or Engineer deems it necessary, it order to expedite the flow of traffic or to abate a dirt or dust nuisance, containment measures shall be taken by the permittee to prevent the spread of excavated material into traffic lanes. No excavated material shall be permitted to enter any stormwater inlet or sanitary sewer. The permittee shall be required to implement soil erosion and sedimentation control measures including placement and maintenance of silt sacks in storm inlets. All excavated material placed/stored on site deemed to be a nuisance or safety concern by the Foreman or Engineer shall be removed daily from the site.
N. 
The Foreman or Engineer may, in addition to the conditions set forth herein, impose such other conditions upon the issuance of the permit as may be reasonably necessary to protect the health and safety of the public during the course of the work.
A. 
All excavations shall be backfilled with 2A limestone material in accordance with PennDOT specifications, Form 408, latest edition, and such material shall be thoroughly compacted by proper tamping. The surface of the excavated area shall be restored to its original or equal condition, unless permittee is authorized, by the Foreman or Engineer, to the contrary.
B. 
Pavement restoration shall consist of the replacement of the existing pavement structure in kind to the full depth of the existing pavement. In no case shall the depth of a bituminous pavement binder course or base course be replaced at a depth less than four inches. In no case shall the depth of a bituminous wearing course be replaced at a depth less than 1 1/2 inches. In the case of concrete pavement, no pavement shall be replaced at a depth of less than six inches. All bituminous pavement replacement shall be sealed with PG 64-22 asphalt at all interfaces with existing pavement and at all penetrations (manholes, inlets, valve boxes, etc.). Sealing of bituminous pavement shall consist of minimum six-inch-wide joints centered along the interface of the existing and new pavement.
C. 
In the event that weather conditions or the availability of the required final paving materials preclude the placement of such materials, the permittee may install temporary bituminous cold patch material, no less than two inches in depth, in the trench areas until such time that suitable weather conditions prevail and the final surfacing materials are available.
D. 
Existing pavement which is removed in the course of the work shall initially be vertically saw cut, the full depth of the pavement, and at the width of the proposed trench. Once all backfilling has been completed, and immediately prior to the completion of trench area paving, additional saw cutting shall be performed such that the existing pavement shall be cutback a distance of at least one foot beyond the outer limits of the trench in order to help bridge trench settlement. All trench area paving shall be performed in straight lines or as otherwise approved by the Foreman or Engineer. The vertical face of existing asphalt pavements shall be treated with asphalt tack coat to help ensure proper bonding of the new asphalt material to the existing material.
E. 
An applicant shall set forth, in detail on the application, all tunneling or boring which is contemplated under a roadway.
F. 
In the event any work performed by a permittee is deemed unsatisfactory, in the opinion of the Foreman or Engineer, and if such unsatisfactory work is not corrected in accordance with the instruction of the Foreman or Engineer or, if the work is not completed within the time specified in the permit, or any extension of time thereof, the Borough may proceed to correct such unsatisfactory work or complete any uncompleted work, all costs thereby incurred by the Borough to be billed to and promptly paid by the permittee or through the permittee's bond, provided further that the Borough, in addition to any other remedy that may possess, proceed in assumpsit against the permittee or contractor, or may proceed against the property in a proper case to collect any costs incurred by the Borough, along with attorney fees and court costs and interest at 6% per annum.
G. 
All backfilling, as well as all other work, shall be accomplished by the permittee with due diligence so that no roadway is obstructed to a greater extent or for a longer period of time than is actually necessary. If the work is not prosecuted with due diligence or, in the opinion of the Foreman or Engineer, it does not comply with the terms of this article, the permit or sound construction and/or engineering practices, the Foreman or Engineer shall so notify the permittee and the permittee shall then be required, within three days from his receipt of such notice, to proceed to complete the work or correct any deficiency in the work. If the permittee does not comply with the terms of this notice, the Borough may then proceed against the permittee who has not complied with all the requirements of this article relative to any prior permits issued to him, the Foreman or the Engineer to be the judge of such noncompliance.
H. 
The Foreman or Engineer shall have the right to inspect all the work and is also authorized to secure such outside inspection services as may, in his judgment, be necessary in order to ensure compliance by the permittee with the provisions of this article and the permit.
I. 
Should settlement of a restored area of the work occur within a period of one year from the date of completion of the permanent restoration by the permittee, such settlement shall be considered conclusive evidence of defective work and the Borough may then take all action necessary to correct the condition, the cost of such corrective action to be paid the permittee or through the permittee bond.
J. 
The Borough shall not, in any way, be responsible for any part of the work which is either omitted or improperly done by the permittee, and no officer or employee of the Borough is authorized to assume any jurisdiction of or responsibility for such part of the work, except when same becomes necessary in the exercise of the police power of the Borough in order to protect the public health and safety.
K. 
If, in the judgment of the Foreman or Engineer, traffic conditions or the public health, safety or convenience require that any part of the work be performed as emergency work, the Foreman shall have the authority to require that the permittee provide sufficient labor, material and facilities on a twenty-four-hour basis to complete that part of the work as soon as possible.
The applicant shall provide a certificate of insurance to the Borough, as part of its application for the permit, same to reflect that the contractor, subcontractor or any other entity who shall actually perform the work under the permit is insured against all claims for bodily injury, including death, as well as all claims for property damage, any of which may arise out if its performance of the work. This insurance shall include completed operations and underground coverages and it shall name the Borough and Engineer as an additional insured. The Foreman or Engineer may require increased limits in the insurance coverage based upon the nature and extent of the work; however, the minimum limits for bodily injury, including death, shall be $500,000 for each person and $1,000,000 for each occurrence and a minimum of $250,000 for property damage for each occurrence.
A. 
Requirements. Each applicant shall provide the Borough, prior to issuance of the permit, with a permit bond to guarantee full performance of the work authorized by the permit, the form of the bond to be substantially that supplied to the Borough. The amount of the bond shall equal the cost to complete the work, as estimated by the Foreman or Engineer, including a maintenance bond in the same amount as the performance bond guaranteeing the work against defects in materials or workmanship for a period of one year from the date of its completion but in no event shall any such bond be in an amount less than $1,000. All such bonds shall have, as collateral thereto, either a cashier's check payable to the Borough or a corporate surety acceptable to the Borough. The Foreman or Engineer may, in the event that multiple permits are to be issued to the same permittee, permit the applicant to furnish one bond which shall be in such amount and subject to such terms as the Foreman or Engineer deems necessary to cover all the work to be done by the applicant under all such permits.
B. 
Default. In the event the Foreman or Engineer determines that there has been a default in the performance of the work, it shall give written notice of the default to the permittee and its corporate surety, if any, on the bond. The notice shall state the action which is to be taken to correct the default, the estimated cost of correction and the time deemed reasonably necessary for its completion. If a notice of default is issued to a permittee, the Borough may condition issuance of future road opening permits to such permittee upon submission of cash security or a letter of credit in place of the bond required herein, and may deny issuance of a permit in a case where timely correction of a default is not undertaken.
C. 
Correction of default. In the event that, after receipt of the notice of default, the default shall not be corrected by the permittee within five days, then, in the case of a corporate surety, the surety shall be required, within the time specified, to either cause the required corrections be made or, in the alternative, pay to the Borough a sum equal to the estimated cost determined by the Foreman or Engineer for the making of the corrections. Upon receipt of such funds, the Foreman or Engineer shall then proceed to have the work completed; however, no liability shall be incurred by the Borough as a result of any such action taken by it, other than its responsibility to see to the proper expenditure of any funds so received by it.
D. 
Forfeiture of cash bond. Should the permittee have posted a cashier's check as collateral to the bond, the Borough shall have the right, either following or in the course of its completion of the work, to use such portion of the funds represented by said check as are necessary to pay all costs and expenses incurred by it, any part of such funds remaining thereafter to be returned to the permittee.
E. 
Term. The effective term of a bond shall commence on the date of issuance of the permit and it shall continue, in full force and effect, until a date one year from the date of approval of the final restoration of the work by the Foreman or Engineer.
F. 
Annual bond for utilities. Public utilities may be required or permitted to post an annual bond with the Borough, at the discretion of the Borough Foreman or Engineer. The form and amount of the annual bond shall be determined by the Borough Engineer or Borough Foreman based on the amount, nature and frequency of road openings and the permittee's prior experience, if any.
G. 
Bonds pre-dating article. All existing standing bonds and/or similarly dedicated escrow accounts possessed by the Borough for street opening purposes shall be declared void and returned to the owner, unless the monies relate to a continuing performance bond, in which case the monies will be distributed to the owner at the end of the performance period.
If, in the opinion of the Foreman or Engineer, the work to be undertaken is such that it will affect any property which abuts or adjoins the area of the work, the Foreman or Engineer may require the permittee to give notice of the same to the owners and/or tenants of each such affected property. In the case of disruption to electric, gas, phone, water or cable services, the permittee will inform the Borough Emergency Management Coordinator, the Foreman and the Borough Engineer of the expected commencement and length of such disruption, such notice to be given at a time not earlier than 48 hours and not later than 24 hours before the disruption begins. Absent such notice, no disruption of said services may commence without approval of the Borough Engineer.
The Borough Secretary shall provide the Police and Fire Departments operating within the Borough with a copy of any permit which prohibits or restricts the flow of traffic on any roadway and the permittee shall be responsible for coordination between itself and the Police and Fire Departments in order that the public safety be protected during the course of the work.
Any person, partnership, firm, corporation or any other entity which shall violate any provision of this article shall, upon conviction thereof, be sentenced to pay a fine of not more than $1,000. Each day that any violation of any provision of this article continues shall constitute a separate offense.