[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:
A.
Assist the Borough in managing its public rights-of-way with respect
to telecommunications services providers in accord with applicable
law; and
B.
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
C.
Provide the Borough with appropriate consideration for occupation
and use of the Borough's rights-of-way for a telecommunications system;
and
D.
Provide the Borough with appropriate consideration for acquisition
and maintenance of the Borough's rights-of-way when used for commercial
purposes.
A.
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.
B.
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.
C.
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.
The person who has obtained a right-of-way permit.
Any individual, firm, partnership, association, corporation,
company or other business entity.
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.
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.
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.
A system that offers telecommunications services.
All equipment that is located wholly or partially underneath
a right-of-way.
A.
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.
B.
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.
C.
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.
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.
B.
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.
C.
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.
A.
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:
(1)
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.
(2)
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.
(3)
The permit holder failed to pay any of the fees required under this
article.
(4)
The permit holder failed to comply with Borough's ordinances governing
construction standards for construction within the Borough's rights-of-way.
(5)
The permit holder failed to indemnify, hold harmless and insure the Borough in accordance with the provisions contained in § 155-11, below.
(6)
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.
(7)
The permit holder provided false, incomplete or misleading information
on the rights-of-way permit application.
B.
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.
C.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
A.
Each new applicant for a right-of-way permit shall include with its
application an application fee in the amount of $_____.[1] 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.
[1]
Editor's Note: The current application fee amount is on file
and available in the Borough offices.
B.
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 $ _____.[2] 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 degradation
of streets and right-of-way property.
[2]
Editor's Note: The annual fee amount is on file and available
in the Borough offices.
C.
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.
D.
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.
A.
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.
B.
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.
C.
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.
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.
B.
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.
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.
B.
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.
A.
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.
A.
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:
(1)
A permit holder fails, after 30 days' prior written notice, to comply
with any of the material provisions of the permit or this article;
(2)
A permit holder becomes insolvent, unable or unwilling to pay its
debts, or is adjudged bankrupt;
(3)
A permit holder attempts to or does practice any fraud or deceit
in its conduct or relations with the Borough under the permit;
(4)
The Borough condemns all of the property of a permit holder within
the Borough by the lawful exercise of eminent domain;
(5)
The permit holder abandons the telecommunications system.
B.
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.
A.
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.
B.
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.
C.
The Borough may request the permit holder to declare permit holder's
intention as to abandonment 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.
D.
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.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
Any person who violates or permits a violation of this article
shall, upon conviction in a summary proceeding under the Pennsylvania
Rules of Criminal Procedure, be guilty of a summary offense and shall
be punishable by a fine of not more than $1,000, plus court costs
and reasonable attorneys' fees incurred by the Borough in the enforcement
proceedings. Upon judgment against any person by summary conviction,
or by proceedings by summons on default of the payment of the fine
or penalty imposed and the costs, the defendant may be sentenced and
committed to the Borough correctional facility for a period not exceeding
10 days or to the county correctional facility for a period not exceeding
30 days. Each day that such violation exists shall constitute a separate
offense, and each section of this article that is violated shall also
constitute a separate offense. In addition to or in lieu of enforcement
under this section, the Borough may enforce this article in equity
in the Court of Common Pleas of Washington County.
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.
