The following conditions shall apply to permits issued pursuant to § 94.33.
(A) Scope of permit. The permit shall be binding upon the permittee, its agents, contractors, successors and assigns.
(1) The permittee shall be responsible for causing compliance with all terms and conditions of the permit by its agents, contractors and successors.
(2) The permit shall be located at the work site and shall be available for inspection by any representative of the borough authorized to inspect permits.
(3) The permit shall be maintained as a permanent record and remain in effect, subject to the permit conditions and regulations set forth in this subchapter, as long as the 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 Manager. Any facility installed under the authority of the said permit shall be subject to removal or relocation at the expense of the permittee.
(B) Additional restrictions. All work authorized by the permit is subject to:
(1) All applicable federal, state and borough laws, ordinances, rules and regulations, including, but not limited to:
(a) Act No. 247, approved October 26, 1972 (P.L. 1017) (62 Pa.C.S.A. Ch. 33), as amended, concerning environmental control measures related to pollution and the preservation of public natural resources;
(b) Act No. 287, approved December 10, 1974 (P.L. 852) (73 P.S. §§ 176 et seq.), or as amended, concerning protection of the public health and safety by preventing excavation or demolition work from damaging underground utility facilities; and
(c) OSHA construction safety and health regulations, 39 F.R. 22801, June 24, 1974, as published in the Federal Register (29 C.F.R. §§ 1926.1 et seq.) or as amended.
(2) Any rights of any person; and
(3) The conditions, restrictions and provisions of the permit.
(C) Borough standards
(1) The work shall be done at such time and in such 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 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.
(2) Whenever any requirement or standard if the borough is superseded by a requirement or standard of the federal government or of the commonwealth, the requirement or standard of the federal government or of the commonwealth, as applicable, shall apply.
(D) Permittee responsibilities.
(1) The permittee shall be responsible for all costs and expenses incident to or arising from the permitted work, including the prescribed fees for same, the cost of making and maintaining temporary restoration of the disturbed areas and making permanent restoration. The permittee shall reimburse the borough for any and all inspection costs related to the permitted work, which the borough may deem it necessary to incur, within 30 days after receipt of the borough’s invoice.
(2) In the event of failure or neglect by the permittee to perform and comply with the permit or the regulations set forth in this subchapter, 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.
(3) If work is stopped on a project for any reason, other than at the end of any normal work day, and any excavations or openings, in the opinion of the borough, remains open for an unreasonable period, the permittee, if so directed, shall refill the excavations or openings 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 excavations or openings 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’s 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, § 94.36 (relating to special conditions - subsurface operations) and § 94.37 (relating to special conditions - above-ground facilities) 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.
(E) Altering vegetation prohibited. This permit does not authorize the permittee to cut, remove or destroy trees or shrubbery within the right-of-way unless specifically noted on the permit.
(F) Altering drainage prohibited.
(1) Unless specifically authorized by the permit, the permittee shall not:
(a) Alter the existing drainage pattern or the existing flow of drainage water; and
(b) Direct additional drainage of surface water toward, onto or into or in any way affect the street right-of-way or street facilities.
(2) The issuance of a permit does not authorize the permittee to direct, divert or otherwise drain surface waters over the property of any other property owner.
(a) The issuance of a permit does not in any way relieve the permittee from acquiring the consent, permission or other authorization from any property owner who may be adversely affected by drainage alterations.
(b) The permittee is responsible for any damage caused to any private or public property as a result of work done under the permit.
(G) Equipment damage to street.
(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 shoulders, the permittee shall restore the pavement or shoulders to their former condition, at the permittee’s expense.
(H) Traffic protection and maintenance. Maintenance and protection of traffic shall be carried out in accordance with the requirements of PennDOT as set forth in Publication No. 203.
(1) The permittee shall provide and maintain all necessary precautions to prevent injury or damage to persons and property in accordance with instructions furnished by the Borough Manager. A traffic control plan shall be submitted to the Borough Manager and approved by the Borough Manager and Police Department 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 excavations or openings in the improved area.
(3) Designated employees of the permittee shall be assigned by the permittee to direct one-lane traffic. Flaggers shall be provided as specified in the permit and in accordance with PennDOT Publication No. 203.
(I) Streets under construction. No permit application will be approved for occupancy of a section of right-of-way within which a street construction or reconstruction project is underway, or if a contract for such a project has been let, until the project is completed and accepted by the Borough Manager. The provisions of this division (I) shall not apply:
(1) In case of emergency, the permittee shall procure the consent of the borough’s Manager to do such work as may be deemed necessary to correct the existing emergency condition in accordance with § 94.34 (relating to emergency work); or
(2) Where the permittee has been authorized by the borough to relocate or adjust their facilities simultaneously with such street construction.
(J) Sharing facilities; subsurface. The application shall identify any other utility’s facility that will be sharing a trench or structure with the applicant’s facilities.
(K) 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:
(1) Through or in consequence of any act or omission of any contractor, agent, servant or employee of the permittee or other person engaged or employed in, about or upon the work, by, at the instance, or with the approval or consent of the permittee;
(2) From any failure of the permittee or any such person to comply with the permit or the regulations set forth in this subchapter; and
(3) From the failure during the two-year period after completion of the permitted work, of the street in the immediate area of the work performed under the permit where there is no similar failure of the street beyond the area adjacent to the area of the permitted work.
(L) Insurance. The permittee shall submit to the Borough Manager’s office a certificate or certificates of insurance for public liability and property damage, in form and amount satisfactory to the Borough Manager, 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.
(M) Blasting. No predrilling 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 Manager with surety by a company duly registered and authorized to do business in the commonwealth, conditioned that the borough will be saved harmless from any damages whatsoever to the improved area and all other private and public property 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 building or structure, a detailed plan of excavating, shoring, blasting and backfilling procedures shall be submitted with the application to the borough for review and approval. The Borough Manager may require pre-blast inspections to be made of all structures or facilities which in his or her opinion may be affected by the permitted work.
(3) Only controlled blasting, as specified in § 203.3(d), PennDOT Publication No. 408, shall be permitted within the improved area.
(N) Maintaining structure or facility. As long as the permittee operates and leaves in place any structure or facility in, upon or along the right-of-way, the permittee shall maintain and keep it in good order and repair.
(O) Damaged structure or facility. 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.
(P) Damage to street.
(1) If there is a failure of the street, including slope or any other appurtenance thereto, in the immediate area of the permitted work within two years after completion of the permitted work and there is no similar failure of the street 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 there is a failure of the street, including slope or any other appurtenance thereto, in the area adjacent to 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 street in the area of the permitted work or beyond the area adjacent to the area of the permitted work, it shall be presumed that the work done by the permittee was the proximate cause of the failure and the permittee shall be responsible to make all temporary and permanent restoration unless the presumption is rebutted by clear and convincing evidence.
(3) Where the permittee has the responsibility to restore the street, including slope or any other appurtenance thereto, under any of the above provisions, including instances where a presumption of responsibility has not been rebutted, the permittee shall have the duty to restore the improved area in accordance with the original 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.
(Q) Future street changes. If at any time in the future the street, in which a permitted structure or facility is installed or constructed, is altered for public convenience or necessity, the owner of the facility shall at its own cost and expense, change or relocate all or any part of the structure or facility authorized by the permit which interferes with such street alterations or which is inconsistent with the purpose of the street alterations.
(R) 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 hy the borough of its right to seek performance or restitution from the permittee.
(S) Restrictions upon opening newly improved streets.
(1) No permit shall be issued by the Borough Manager which would allow an excavation or opening in a paved and improved street surface that is less than five years old, unless the applicant can demonstrate clearly that:
(a) The public health or safety requires that the proposed work be permitted; or
(b) An emergency condition exists that requires that the work be performed.
(2) In either instance described in division (S)(1) above, as a condition of any permit issued, the applicant shall be required to pave/restore/overlay a minimum 12 feet width (or the entire cartway width, if deemed appropriate by the Borough Manager in his or her sole discretion), which width shall run the entire length of the opening, plus 50 feet on each side of the two sides of the length of the opening, and shall be accomplished in accordance with borough specifications. Any financial security provided for in this chapter shall reflect the increased dimension required by this section, if applicable.
(Ord. 1-1984, passed 3-12-1984; Ord. 6-2022, passed 11-14-2022)