(A) Permit conditions. The following conditions shall apply to permits issued under this subchapter.
(1) The permit shall be binding upon the permittee, its agents, contractors, successors, and assigns.
(2) The permittee shall be responsible for causing compliance with all terms and conditions of the permit by its agents, contractors, and successors.
(3) The permit shall be maintained as a permanent record and remain in effect, subject to the permit conditions and this subchapter, as long as the permittee’s facilities authorized by the permit occupy the right-of-way.
(4) Responsibility for compliance with the terms of the permit cannot be assigned or transferred by the permittee without first obtaining approval from the borough. In the event a permit is assigned or transferred without first obtaining approval from the borough, the assignment or transfer shall be null and void. Any facility installed under the authority of said permit shall be subject to removal at the expense of the applicant to which the permit was issued and/or its assignees.
(5) The permittee shall be principally liable to the borough for any failure to comply with the permit and this subchapter. The principal liability of the permittee to the borough shall not preclude the permittee from any subsequent action against its contractor, subcontractor, materialmen, engineer, architect, or the like arising from the project. This provision shall not be deemed a waiver of any rights the borough may have against any third party for any damages or liability arising from the project.
(6) The permittee shall be the only party in interest in any action against the borough involving disputes arising from the permit.
(B) Work to conform to borough standards. The work shall be done at such time and in such a manner as shall be consistent with the safety of the public and shall conform to all requirements and standards of the borough. If at any time it shall be found by the borough that the work is not being done or has not been properly performed, the permittee, upon being notified in writing by the borough, shall immediately take the necessary steps at its own expense to place the work in condition to conform to such requirements or standards. In case any dispute arises between the permittee and the borough’s inspector, the borough’s inspector shall have the authority to suspend work until the question at issue can be referred to and be decided by the Borough Office.
(C) Permittee responsibilities.
(1) The permittee shall pay all costs and expenses incident to, or arising from, the project, including the prescribed fees for same, the cost of making and maintaining temporary restoration of the disturbed areas, and making permanent restoration.
(2) In the event of failure or neglect by the permittee to perform and comply with the permit or these regulations, the borough may immediately revoke and annul the permit and order, and direct the permittee to remove any or all structures, equipment, or property belonging to the permittee and/or its contractors from the legal limits of the right-of-way and to restore the right-of-way to its former condition. In the event the borough determines that such structures, equipment, or property pose a threat to the public safety and the permittee fails to remove the same after notice from the borough to do so, the borough or its attorneys, or any attorney of any court of record, shall be authorized to appear for the permittee, and to enter an amicable action to ejectment and confess judgment against the permittee; and the attorney shall be authorized to issue forthwith a writ of possession with a clause of fieri facias for costs, without leave of court.
(3) If work is stopped on a project for any reason, other than at the end of any normal work day, and any ditch or trench, in the opinion of the borough, remains open for an unreasonable period, the permittee, if so directed, shall refill the ditch or trench and work shall not be resumed until the permittee is prepared to proceed immediately with the work to its completion. In the event the permittee fails to refill the ditch or trench or proceed until completion of the work upon notice from the borough to do so, the borough may perform the necessary and required work and shall be reimbursed for the costs by the permittee within 30 days after receipt of the borough invoice.
(4) If the permittee, after making an opening in the surface to place or repair a facility or for any other purpose, fails to restore any portion of the right-of-way to conform with this section and § 151.05, upon notice from the borough to do so, the borough reserves the right to do the work and the permittee shall reimburse the borough for the costs within 30 days after receipt of the borough’s invoice.
(D) Altering drainage prohibited. Unless specifically authorized by the permit, the permittee shall not:
(1) Alter the existing drainage pattern or the existing flow of drainage water;
(2) Direct additional drainage of surface water toward, onto or into, or in any way affect the highway right-of-way or highway facilities;
(3) This permit does not authorize the permittee to direct, divert, or otherwise drain surface waters over the property of any other property owner;
(4) The permit does not in any way relieve the permittee from acquiring the consent, permission, or other authorization from any property owner which may be adversely affected by drainage alterations; and
(5) The permittee is responsible for any damage caused to any property owners as a result of work done under the permit.
(E) Equipment damaging highway.
(1) To protect the pavement and shoulders, all equipment shall have rubber wheels or runners and shall have rubber, wood, or similar protective pads between the outriggers and the surface unless otherwise authorized by the permit.
(2) In the event that other than rubber equipped machinery is authorized for use, the pavement and shoulders shall be protected by the use of matting, wood, or other suitable protective material having a minimum thickness of four inches, unless the permit requires the permittee to repave the roadway full width.
(3) If the equipment damages the pavement or shoulder, the permittee shall restore the pavement or shoulders to their former condition, at the permittee’s expense.
(F) Traffic protection and maintenance. Maintenance and protection of traffic shall be carried out in accordance with the requirements of the borough.
(1) The permittee shall provide and maintain all necessary precautions to prevent injury or damage to persons and property. A traffic control plan shall be submitted to and approved by the borough before detouring any traffic.
(2) Warning signs shall be placed in advance of the actual operation in such a manner as to be visible to the traveling public and substantial barricades with adequate illumination shall be provided and maintained for any open trench or hole in the improved area.
(3) Designated employees shall be assigned by the permittee to direct one-lane traffic.
(G) Indemnification. The permittee shall fully indemnify and save harmless and defend the borough of and from all liability for damages or injury occurring to any person or persons or property through or in consequence of any act or omission of any contractor, agent, servant, employee, or person engaged or employed in, about, or upon the work, by, at the instance, or with the approval or consent of the permittee; from any failure of the permittee or any such person to comply with the permit or these regulations; and, for a period of two years after completion of the permitted work, from the failure of the highway in the immediate area of the work performed under the permit where there is no similar failure of the highway beyond the area adjacent to the area of the permitted work.
(H) Insurance. The permittee shall, upon request, submit to the borough a certificate or certificates of insurance for public liability and property damage, in form and amount satisfactory to the borough, to cover any loss that may be incurred for or on account of any matter, cause, or thing arising out of the construction, reconstruction, repair, relocation, or installation of the permitted structures or facilities.
(I) Blasting. No pre-drilling or blasting shall be permitted within the right-of-way unless authorized by the permit.
(1) If the permittee proposes to blast, the permittee shall make, execute, and deliver a bond to the borough in an amount determined by the borough with surety by a company duly registered and authorized to do business in the state, conditioned that the borough will be saved harmless from any damages whatsoever to the improved area for a period of one year from the date of the completion of the last work covered by the permit.
(2) When blasting is anticipated within 100 feet of any bridge, box, or culvert, a detailed plan of excavating, shoring, blasting, and backfilling procedures shall be submitted, with the application, to the borough for review and approval.
(3) No blasting shall be permitted if within 25 feet of the nearest part of a bridge, box, or culvert.
(4) Only controlled blasting shall be permitted within the improved area.
(J) Maintaining structure or facility. As long as the permittee operates and leaves in place any structures or facilities in, upon, or along the right-of-way, the permittee shall maintain and keep them in good order and repair.
(K) Damaged structure or facility to be repaired. If at any time the structure or facility shall become damaged from any cause whatsoever, the permittee shall have it removed, repaired, or otherwise made safe immediately upon notification from the borough.
(L) Damage to highway.
(1) If there is a failure of the highway, including slope or any other appurtenance thereto, in the immediate area of the permitted work within two years after the completion of the permitted work and there is no similar failure of the highway beyond the area adjacent to the area of the permitted work, the permittee shall have absolute responsibility to make all temporary and permanent restoration including restoration of the adjacent area if it has also failed.
(2) If the permitted work is the proximate cause of damage to the highway, including slope or any other appurtenance thereto, beyond the adjacent area, the permittee shall be responsible for all remedial work and shall make all temporary and permanent restoration.
(3) Where the permittee has the responsibility to restore the highway, including slope or any other appurtenance thereto, under any of the above divisions, the permittee shall have the duty to restore the improved area in accordance with the permit. If the permittee fails to restore the improved area properly, the borough shall have the authority to do the work at the permittee’s expense. The permittee shall reimburse the borough for the costs within 30 days after receipt of the borough’s invoice.
(M) Future highway changes. If at any time in the future the highway is altered for public convenience or necessity, the permittee shall at its own cost and expense, change or relocate all or any part of the structures or facilities authorized by the permit which interfere with such highway alterations or which is inconsistent with the purpose of the highway alterations.
(N) Approval by inspector. Approval by the borough’s inspector of all or part of any permitted work shall not constitute acknowledgment that the work was performed in accordance with the permit, nor shall such approval of the inspector act as a release of the permittee or waiver by the borough of its right to seek performance or restitution from the permittee.
(Prior Code, Ch. 21, Pt. 1, § 104) (Ord. 3-87, passed 8-3-1987)