[HISTORY: Adopted by the Borough Council of the Borough of Canonsburg as indicated in article histories. Amendments noted where applicable.]
[Adopted 2-13-2006 by Ord. No. 1269]
The purpose of this article is to:
Assist the Borough in managing its public rights-of-way with respect to Telecommunications Services providers in accord with applicable law.
Regulate the erection, construction, reconstruction, installation, operation, maintenance, dismantling, testing, repair and use of a Telecommunications System in, upon along, across, above, over, under or in any manner connected with the streets, public ways or public places within the corporate limits of the Borough, as now or in the future may exist, and
Provide the Borough with appropriate consideration for occupation and use of the Borough's rights-of-way for a Telecommunications System; and
Provide the Borough with appropriate consideration for acquisition and maintenance of the Borough's rights-of-way when used for commercial purposes.
The Borough Manager, or that Manager's designated representative, shall serve as the single point of contact within the Borough for all persons regulated under this article.
The Manager shall coordinate all contacts with other Borough departments as necessary to facilitate issuance of any and all permits required by the Borough of Canonsburg Code of Ordinances.
The Manager shall coordinate the preparation of all policies and forms as necessary for the implementation of this article with the approval of the Borough Council.
Unless the context specifically indicates otherwise, the meaning of the terms used in this article shall be as follows:
- The person who has applied for a right-of-way permit or a construction permit.
- The form prescribed by the Borough, which the applicant must complete in order to obtain a right-of-way or construction permit.
- The building, excavation, erection, or installation in, on, over or under a right-of-way. It does not include maintenance or repair of existing aerial cables or equipment in a right-of-way or a single line extension from equipment in the right-of-way.
- A condition that poses a clear and immediate danger to life or health or significant loss of property.
- Any tangible property located or proposed to be located in a right-of-way, including, but not limited to, wires, lines, cables, conduits, pipes, supporting structures or other facilities.
- Work of a minor nature that will keep an existing condition from failure of decline.
- PERMIT HOLDER
- The person who has obtained a right-of-way permit.
- Any individual, firm, partnership, association, corporation, company or other business entity.
- RESTORE or RESTORATION
- The process by which a right-of-way is returned to a state that is as good or better as its condition before construction.
- The surface and space in, on and above any real property in which the Borough has an interest in law or in equity, including, but not limited to, any public street, boulevard, avenue, road, highway, easement, freeway, alley, court or any other place, other than real property owned in fee by the Borough.
- RIGHT-OF-WAY or PERMIT
- A written authorization granted by the Borough to an applicant for use of the rights-of-way in the Borough for wires, lines, cables, conduits, pipes, supporting structures and other facilities.
- The transmission, between or among points specified by the user, of information of the user's choosing, without change in form or content of the information sent and received.
- TELECOMMUNICATIONS SERVICES
- The offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.
- TELECOMMUNICATIONS SYSTEM
- A system that offers telecommunications services.
- UNDERGROUND EQUIPMENT
- All equipment that is located wholly or partially underneath a right-of-way.
No person shall enter upon or occupy any right-of-way for the purpose of maintaining or operating a Telecommunications System without first having obtained a right-of-way permit. Any person maintaining or operating a Telecommunications System as of the effective date of this article shall also obtain a right-of-way permit.
Before a right-of-way permit is issued, the holder of or applicant for a right-of-way permit shall have applied for any and all regulatory approvals, permits or authorizations from the appropriate federal and state authorities, if required. Upon the request of the Borough, the applicant shall submit written evidence of its applications for or receipt of all such approvals, permits or authorizations.
Nothing in this article shall be construed as a waiver of any other ordinances or regulations of the Borough or the Borough's right to require prospective or current right-of-way permit holders to secure and remit payment for any and all other required permits or authorizations.
A right-of-way permit shall only be granted after an applicant has completed an application in the form that has been prescribed by the Borough, which form may be revised from time to time. Upon request, an applicant shall be provided with a copy of the then current application for a right-of-way permit. The application shall request information regarding the applicant's proposed or actual physical use and occupation of the rights-of-way. The applicant shall provide specific information regarding the equipment it proposes to place or currently maintains in the rights-of-way. If the completed application does not fully provide such requested information, the Borough may request such additional information as is necessary to enable it to make a determination regarding the physical use and occupation of the rights-of-way by the applicant. The application may request less information from a permit holder applying for a renewal of a right-of-way permit.
Upon submission of a fully completed application to the Borough and the accompanying fee, the Borough shall review the application as follows: The Borough shall grant or deny such applications within 45 days. If the Borough denies the application, it will provide a written response to the applicant explaining the basis for denial. If the Borough fails to grant or reject such application within the time period specified above, the application shall be deemed approved. In each case, the Borough shall review the application to determine whether such use would have a detrimental effect on public safety as it relates to the rights-of-way or would place an undue physical burden on the rights-of-way.
In considering an application, the Borough may use such outside experts as it deeds necessary to assist in determining whether the use proposed by the applicant would have a detrimental effect on the right-of-way or the health, safety and/or welfare of the residents of the Borough. In the event the Borough deems it necessary to employ an outside expert or experts to advise the Borough with respect to a particular application, the reasonable costs of such expert or experts shall be borne by the applicant.
The right-of-way permit shall be issued for a period of one year. Permit holders shall apply for a renewal of a right-of-way permit at least 60 days prior to its expiration. The Borough may suspend such right-of-way permit in the event any one or more of the following has occurred:
The permit holder shall have caused damage to Borough property or the right-of-way without the prior consent of the Borough (except in the case of an emergency) and without completing proper restoration.
The permit holder or the permit holder's equipment in the right-of-way has had a detrimental effect on public safety as it relates to the permit holder's use of the rights-of-way.
The permit holder failed to pay any of the fees required under this article;
The permit holder failed to comply with Borough's ordinances governing construction standards for construction within the Borough's rights-of-way.
The permit holder failed to indemnify, hold harmless and insure the Borough in accordance with the provisions contained in § 155-11. below.
The permit holder failed to procure and/or maintain a performance bond for the benefit of Borough in accordance with the provisions contained in § 155-14 below.
The permit holder provided false, incomplete or misleading information on the rights-of-way permit application.
If the Borough has reason to believe that one or more of the above events has occurred, it shall notify the permit holder in writing: The permit holder shall have 30 days to cure the violation, unless the Borough reasonably determines that the event is an emergency, in which case the Borough may impose a shorter time period to cure the violation.
If the permit holder fails to cure the violation within the specified time period, the Borough shall be permitted to immediately suspend the right-of-way permit. A suspension shall be brought to the attention of the Borough at its next meeting, at which time the Borough shall be permitted to uphold or withdraw the suspension. The permit holder shall be provided an opportunity to be heard at such meeting.
Prior to commencing any construction in any right-of-way, the permit holder shall obtain all necessary permits and comply with any and all of the Borough's ordinances and regulations governing such construction within the Borough's rights-of-way.
The permit holder shall comply with any and all of the Borough's ordinances and regulations governing construction within the Borough's right-of-way.
The Telecommunications Systems shall not endanger or interfere with the safety of persons or property within the Borough. All operating, maintenance, construction and repair personnel shall be thoroughly trained in the safe use of all equipment and in the safe operation of vehicles. Such personnel shall follow all safety procedures required by applicable federal, state and local laws and regulations. The permit holder shall routinely inspect and maintain all areas of the Telecommunications Systems so that conditions that could develop into safety hazards shall be corrected before they become a hazard.
All construction activity shall be performed in an orderly and workmanlike manner, and in close coordination with public utilities serving the Borough, following accepted industry construction procedures and practices.
All wires, cables, and other equipment shall be installed, where possible, parallel with electric and telephone lines, and multiple cable configurations shall be arranged in parallel and bundles with due respect for engineering considerations.
All wires, cables and other equipment shall be installed underground where required by municipal ordinance or regulation consistent with the same requirement being imposed on all other similarly situated companies, including public utilities.
Each new applicant for a right-of-way permit shall include with its application an application fee in the amount of $_____. This fee is directly related to the Borough's costs in reviewing the application (excluding expert costs) and managing the rights-of-way with respect to each permit holder. Such costs in managing the rights-of-way include, but are not limited to, costs of maintaining the rights-of-way, costs of degradation of streets and right-of-way property, administrative costs, traffic control costs pertaining to work in the right-of-way, and inspection costs. This fee will not be refunded in the event the application is denied. If the application is granted, the application fee will apply to the full term of the right-of-way permit of one year.
Editor's Note: The current application fee amount is on file and available in the Borough Offices.
Each existing permit holder applying for a renewal of its right-of-way permit shall include with its application an annual fee in the amount of $ _____. This fee is directly related to the Borough's costs in managing the rights-of-way with respect to each permit holder. Such costs include, but are not limited to, inspection costs, administrative costs, costs of maintaining the rights-of-way and costs of degredation of streets and right-of-way property.
Editor's Note: The annual fee amount is on file and available in the Borough Offices.
Extraordinary expenses. In addition to the fees set forth above, a permit holder shall pay, within 30 days of the presentation of a statement, any extraordinary or unusual expenses reasonably incurred by the Borough as a result of the permit holder's use of the rights-of-way, provided that the Borough notifies the permit holder of the expected expenses prior to them being incurred and provides the permit holder with an opportunity to mitigate such expenses. The statement of such expenses prescribed to the permit holder shall be directly related to the Borough's actual costs.
In the event that payment of any of the fees identified above is not made upon submission of the application or by the date due, the applicant or permit holder shall pay a late payment penalty of simple interest at 10% annual percentage rate of the total amount past due. Such penalty shall be in lieu of any other monetary penalty. Acceptance of payment under this section shall not in any way limit or waive the Borough's right to suspend or terminate the permit according to the terms of this article.
The Borough may install or affix and maintain wires and equipment for municipal purposes upon any and all of permit holder's ducts, conduits or equipment, without charge to the Borough. For the purposes of this section, the term "municipal purposes" includes, but is not limited to, the use of the ducts, conduit or equipment for Borough fire, police, other emergency, and/or signal systems. The permit holder shall not be responsible for any damage resulting to the wires or property of the Borough occurring as a result of Borough's use of permit holder's conduits.
The Borough shall have the right to limit the placement of new or additional equipment in the right-of-way if there is insufficient space to reasonably accommodate all requests to occupy and use the rights-of-way. The Borough shall consider requests for occupying and using the rights-of-way in the order of receipt of fully completed applications for right-of-way permits. The Borough shall strive, to the extent possible, to accommodate all requests but shall be guided by the physical condition of the right-of-way and whether such use would have a detrimental effect on public safety as it relates to the right-of-way.
The Borough shall have the right to monitor the Telecommunications Systems and the equipment related thereto located in the rights-of-way in order to prevent interference between and among such systems and equipment.
A permit holder shall allow the Borough to make inspections of any part of the permit holder's telecommunications system located in the rights-of-way at any time upon three days' notice or, in case of an emergency, upon demand.
A permit holder shall, at its sole cost and expense, indemnify, defend and hold harmless the Borough, its elected and appointed officials, employees and agents, at all times against any and all claims for personal injury, including death, and property damage arising out of the permit holder's use or occupancy of the rights-of-way. A permit holder shall defend any actions or proceedings against the Borough in which it is claimed that personal injury, including death, or property damage was caused by the permit holder's use or occupancy of the rights-of-way. The obligation to indemnify, hold harmless and defend shall include, but not be limited to, the obligation to pay judgments, injuries, liabilities, damages, reasonable attorneys' fees, reasonable expert fees, court costs and all other costs of indemnification. A permit holder shall not be required to indemnify and hold the Borough harmless for claims caused by the Borough's negligence, gross negligence or willful misconduct.
A permit holder shall at all times during the life of a permit carry and require its subcontractors to carry liability, property damage, worker's disability, and vehicle insurance issued to the permit holder by an insurance company licensed to do business in the Commonwealth of Pennsylvania in an amount and form acceptable to the Borough in such form and amount as shall be determined by the Borough as set forth in the permit. A permit holder shall name the Borough as an additional insured on its liability insurance policies for whom defense will be provided as to all such coverages. All required insurance coverage shall provide for 30 days' notice to the Borough in the event of material alteration or cancellation of such coverage prior to the effective date of such material alteration or cancellation. The permit holder shall provide appropriate insurance certificates to the Borough within 30 days after the execution of a permit and annually with an application for a Renewal Permit. Any certificate of insurance presented to the Borough shall verify that the applicant is insured against claims for personal injury, including death, as well as claims for property damage arising out of the applicant's use and occupancy of the rights-of-way, including, but not limited to, protection against liability arising from completed operations, damage to underground equipment, and collapse of property.
A permit holder shall annually provide the Borough, upon application for renewal of the permit, or upon request, the current maps of the locations of its existing equipment and facilities and a summary of all additions and deletions of equipment and facilities in the rights-of-way, unless no changes have occurred in the previous year. If no charges have occurred in the previous year, the permit holder shall so inform the Borough in writing.
A permit holder shall submit to the Borough such reasonable information directly related to the permit holder's use and occupation of the rights-of-way as the Borough may request. All information provided to the Borough shall be maintained by the Borough as proprietary and confidential if such information is designated in good faith as such prior to the time it is provided to the Borough.
A right-of-way permit may be transferred or assigned, upon 30 days' written notice to the Borough, provided that the transferee/assignee agrees in writing, prior to the transfer or assignment, to comply with all of the obligations and requirements contained in this article.
Unless this requirement is waived by the Borough, all persons submitting a request for a permit to construct or maintain a Telecommunications System in accordance herewith shall file with their request a bond solely for the protection of the Borough with a surety company or trust company or companies as surety or sureties in an amount determined by the Borough Manager to protect the Borough from any and all damages or costs suffered or incurred by the Borough as a result thereof, including, but not limited to, attorneys' fees and costs of any action or proceeding, and including the full amount of compensation, indemnification, cost or removal or abandonment of any property or other costs which may be in default, up to the full principal amount of the bond, and the condition shall be continuing obligation during the entire term of any right-of-way permit or construction permit issued in accordance herewith and thereafter until the permit holder shall have satisfied in full any and all obligations to the Borough which arise out of or pertain to the right-of-way permit for a Telecommunications System or right-of-way construction permit.
In addition to all other rights and powers reserved by the Borough, the Borough reserves the right to terminate a permit and all rights and privileges of a permit holder for any of the following reasons:
A permit holder fails, after 30 days' prior written notice, to comply with any of the material provisions of the permit or this article;
A permit holder becomes insolvent, unable or unwilling to pay its debts, or is adjudged bankrupt;
A permit holder attempts to or does practice any fraud or deceit in its conduct or relations with the Borough under the permit;
The Borough condemns all of the property of a permit holder within the Borough by the lawful exercise of eminent domain;
The permit holder abandons the Telecommunications System.
No termination shall be effective unless and until the Borough Council shall have adopted a resolution setting forth the cause and reason for the termination and the effective date, which resolution shall be adopted without 30 days' prior notice to the permit holder and an opportunity for the permit holder to be heard and to present evidence before the Borough Council on the proposed resolution.
Upon expiration or termination of the permit, if the permit is not renewed, the permit holder shall, upon 60 days' prior written notice to the permit holder, commence to remove its equipment from the rights-of-way and shall restore said areas. If such removal is not completed within six months of such notice, the Borough may deem any property not removed as abandoned, and the Borough may remove it at the former permit holder's expense. In the event that the permit holder installed and/or operated any underground conduit or pipe which is six inches or more in diameter, the permit holder shall fill said conduit or pipe with material in a manner satisfactory to Borough.
During the term of the permit, if the permit holder decides to abandon or no longer use all or part of its Telecommunications System, it shall provide the Borough with written notice of its abandonment at least 30 days prior to such decision, which notice shall describe the equipment and its location.
The Borough may request the permit holder to declare permit holder's intention as to abondonment of all or part of the telecommunication system during the term of the permit. The permit holder shall respond to such request within 90 days or such portions of the Telecommunications System shall be deemed abandoned.
The Borough shall have the right to require the permit holder to commence to, remove the abandoned Telecommunications System in part or in total upon 60 days prior written notice to the permit holder. If such removal is not completed within six months of such notice, the Borough may remove it at the permit holder's expense.
If the Borough has reason to believe that the permit holder violated any of the terms of this article, it shall notify the permit holder in writing of the nature of the violation and this section of this article that it believes has been violated. Except in the case of an emergency, the permit holder shall have 30 business days to cure the violation. If the nature of the violation is such that it cannot be fully cured within such time period, the Borough may, in its reasonable judgment, extend the time period to cure. If the violation has not been cured within the time period allowed it shall be subsequently punishable by a fine of up to $100 per day until the violation is cured. In the case of an emergency which is discovered by the Borough or reported to the Borough, the Borough shall notify the permit holder's via the permit holder's emergency telephone number. In the event that the permit holder does not repair the emergency within six hours, the Borough may repair the emergency at the permit holder's expense.
The Borough, by granting any permit under this article, does not waive, lessen, impair or surrender the lawful police power vested in the Borough under applicable federal, state and local law pertaining to the regulation or use of the rights-of-way.
The provisions of this article shall be imposed upon and enforced against all persons requiring a permit for the provision of Telecommunications Services or Construction of a Telecommunications System within the Borough.