[HISTORY: Adopted by the Mayor and Council of the Borough
of Blawnox as indicated in article histories. Amendments noted where
applicable.]
[Adopted 11-10-1958 by Ord. No. 243; amended at time of adoption of Code
(see Ch. I, General Provisions, Art. I)]
A.
This article shall be known as the "Blawnox Borough Street Opening
Ordinance."
B.
The purpose of this article is to provide minimum standards to safeguard
persons, to protect property, to ensure prompt and proper excavation
and repair of street openings and excavations in the Borough streets
and rights-of-way, and to control the opening or excavation of Borough
streets and rights-of-way.
It shall be unlawful for any person, firm, entity or corporation
to make any opening or excavation in or under any Borough street,
alley, thoroughfare or right-of-way unless a permit therefor is secured
from the Borough for each separate undertaking. The Code Enforcement
Officer or police officers of the Borough shall promptly prohibit
any work being done without a proper permit, or contrary to the terms
hereof.
A.
An application for a street opening permit ("permit") shall provide
a specific time during which the street opening or excavation may
remain open, the place where said opening or excavation may be made,
together with the probable length, width, and depth thereof, and such
further information as the Borough Public Works Foreman or the Borough
Engineer may require.
B.
No permit for any street opening will be granted where the proposed
excavation is to remain open and unfilled more than two calendar days.
C.
The application shall include specific details on the manner in which
the applicant proposes to ensure safe and expedient traffic flow as
well as measures which will provide for adequate notice of the existence
of a street opening, including suitable barriers, signage, and flashing
lights, during hours when the excavation is open but unattended, all
in accordance with PennDOT Publication No. 213, Temporary Traffic
Control Guidelines. At all times when work is being conducted under
the permit, the applicant must have certified flaggers and other personnel
dedicated to routing traffic around the excavation site. A steel plate
which fully covers the excavation and allows traffic to safely pass
over it is required during nonworking hours.
The permit application shall demonstrate compliance with the
following restrictions before any permit will be issued:
A.
No opening shall extend beyond the center line of the street before
being refilled and the surface of the street restored to an interim
condition deemed by the Borough's Public Works Foreman, a member
of his/her department, or, if judged necessary, the Borough Engineer
(to be paid for by the permittee) to be safe and passable for travel
by vehicles or pedestrians.
B.
Any disturbances to or interference with streets, sidewalks or other
improvements located within Borough rights-of-way shall be restored
to a condition acceptable to the Borough's Public Works Foreman, a
member of his/her department or, if deemed necessary, the Borough's
Engineer (to be paid for by the permittee), including appropriate
coloring of sidewalk materials to blend into existing sidewalks and
replacement of pavement and pavement markings. Right-of-way vegetation
shall be fully restored in kind and managed until such vegetation
has returned to full growth.
C.
No more than 40 feet longitudinally shall be open in any Borough
street or combination of Borough street and right-of-way at any one
time.
D.
The applicant for a permit shall provide and maintain all necessary
shoring and bracing of openings to protect persons, roadways, utilities,
and adjacent land and buildings from damage resulting from shifting
or subsidence of the adjacent land or other conditions.
E.
No tunneling shall be allowed without the express approval of the
Borough Engineer (to be paid for by the permittee) and at least two
Borough officials. Permission for such work shall be specifically
included on the permit.
F.
Excavated or other material shall be removed from the site, or placed
or stored on the side of the operation farthest from the pavement
but within the Borough street or right-of-way, and shall not be placed
on private property without the express approval of the property owner,
which must be given to the permit applicant, in writing, and included
as part of the application. Excavated or other material shall also
be stored and managed in such manner that there is no interference
with the flow of water, traffic and/or pedestrians.
G.
Where a pipe drain, pipe culvert or other buried structure or facility
has been damaged by the permittee or any contractor or subcontractor
working for the permittee, it shall be replaced, restored, strengthened
or protected by the permittee at the permittee's sole cost and
expense, in a manner satisfactory to the Borough's Public Works Foreman,
a member of his/her department or, if deemed necessary, the Borough's
Engineer (to be paid for by the permittee).
H.
No refilling of any excavation or opening shall be undertaken unless
or until written permission is received from the Borough's Public
Works Foreman, a member of his/her department or, if deemed necessary,
the Borough's Engineer (to be paid for by the permittee) and
the Public Works Foreman or his/her designee is present at the time
of backfilling.
I.
All openings and excavations shall be backfilled promptly with suitable
materials and thoroughly compacted in layers according to Blawnox
Borough or PennDOT specifications and/or the specific direction of
the Borough's Public Works Foreman, a member of his/her department
or, if deemed necessary, the Borough's Engineer (to be paid for
by the permittee).
No permit shall be issued which would allow any excavation or
opening in a paved and improved street surface, or in the right-of-way
adjacent to the street surface if such activity in the right-of-way
would impair the street surface, of any paved and improved street
surface that is less than five years old, unless the applicant can
demonstrate clearly that:
All restoration work shall be performed to the satisfaction
of the Borough's Public Works Foreman, a member of his/her department
or, if deemed necessary, the Borough's Engineer (to be paid for
by the permittee). Generally, street surfaces shall be milled and
resurfaced full lane widths in instances where street openings are
limited to a single lane. Street openings that result in openings
in both lanes shall generally be restored by full-width milling and
resurfacing. Full-width milling and resurfacing may also be required
on streets with narrow cartways, even when street openings are restricted
to one side of the center of the cartway and in instances where the
applicant's operations have damaged the street surface beyond
the limits of the excavations. The depth of the pavement restoration
shall be as directed by the Borough Engineer, but in no case shall
the depth of the restored pavement be less than that of the existing
pavement. Should the final restoration of any street openings be delayed
due to freezing temperatures, wet weather or lack of availability
of paving materials, all such areas shall be restored temporarily
with bituminous cold patch material not less than two inches in depth.
The applicant shall be required to maintain all temporary paving to
the satisfaction of the Engineer until such time that final restoration
is complete. All pavement openings shall be permanently or temporarily
paved before the street or any portion thereof shall be open to traffic.
The applicant shall be required to submit, along with their
application, video and/or photographic documentation that adequately
demonstrates the preconstruction conditions along the path of the
proposed street opening and all adjacent areas.
Applicants shall be required to submit plans, drawn to scale,
clearly illustrating the proposed location of the street opening(s)
and nature and extent of the work being proposed.
A.
Nonresidents. A permit fee shall be required as established by the
Borough Council and adjusted from time to time in accordance with
the Borough's published schedule of rates and permit fees. In
addition to the permit fee, the applicant shall be required to deposit
the estimated cost of the repair work associated with the permit.
Such costs shall include all backfilling, temporary and final restoration
costs. The deposit shall be paid to the Borough by check. The Borough
shall retain the full amount of the repair deposit until such time
that all final repairs have been completed in accordance with all
provisions of this article. If the applicant does not comply with
all of the provisions of this article in a full and timely manner,
the Borough may use the repair deposit to complete the repair work
required under the permit and any associated administrative costs.
Any unused portion of the repair deposit, after such work has been
completed and paid for by the Borough, shall be returned to the applicant.
B.
Residents.
(1)
Notwithstanding Subsection A above, the permit application fee for private residents of the Borough who own a fee simple interest in the affected property in the Borough shall be as established by the Borough Council and adjusted from time to time in accordance with the Borough's schedule of rates and permit fees. No repair deposit will be required for a resident, provided the following conditions are met:
(a)
The street/road opening excavation is necessitated by conditions
existing on the property owned by such resident and such condition
is related to one or more of the following: flooding, water service,
sewage service, gas service, stormwater surcharge or any other similar
condition at that property.
(b)
The permit applicant is the individual Borough resident.
(2)
The resident shall inform the Borough within 30 days of the date of completion of the work approved under the permit. After inspection by the Public Works Foreman, a member of his/her department, or, if deemed necessary, the Borough Engineer (to be paid for by the permittee), if the work is judged to be complete and satisfactory at that time, the applicant shall be responsible for maintaining the completed excavation for a period of 365 days from the date of the inspection and shall repair or correct any deficiencies in the work in accordance with § 479-11. If the resident fails to correct or repair the work within 15 calendar days of receipt of written notice from the Borough, the Borough may elect to conduct any necessary repair work itself, in which case the resident shall pay the Borough's direct costs (including administrative costs) within 30 days of receipt of written demand from the Borough. If such resident fails to make timely payment of all the Borough's direct costs (including administrative costs), the Borough shall be authorized to place a lien against the property in the amount of the Borough's direct costs (including administrative costs). The amount of the lien shall be adjusted each year to include interest at the rate of 6%.
C.
Multiple applications.
(1)
An applicant who demonstrates, in writing, that it expects to submit multiple applications under this article may request the Borough to retain the repair deposit for the largest of the proposed openings. Such repair deposit shall be kept by the Borough for the purpose of conducting any curative work under § 479-11 hereof required at any of the applicant's road openings. An applicant who elects this approach and receives written approval from the Borough shall thereafter be required to pay only any engineering fees for each project as long as:
(2)
In the event that the Borough is required to perform curative work under § 479-11 to any of the applicant's road openings, the applicant shall thereafter be notified by the Borough of the amount of the repair deposit, if any, remaining after such curative work is performed. Within 30 days of such notification by the Borough, the applicant shall replenish the amount of the repair deposit to the level required under Subsection A for the original permit.
A.
No permit will be issued by the Borough until the applicant shall
have filed with the Borough Secretary the following, which shall be
approved by the Public Works Foreman or the Borough Manager:
(1)
A certificate or other document, issued by an insurance company properly
authorized to do business in the Commonwealth of Pennsylvania, evidencing
the issuance to the applicant of a policy of public liability and
property damage insurance in an amount sufficient to indemnify and
save harmless the Borough of Blawnox and any adjacent property owner
from damage which may be occasioned by the proposed street excavation
or right-of-way opening. The said policy shall be in an amount not
less than $1,000,000 for injury to persons and $500,000 for injury
to property arising out of a single occurrence. The certificate shall
name the Borough as an additional insured party as to work performed
upon, under or in the streets or rights-of-way of the Borough, and
a copy of such policy naming the Borough as an additional insured
shall be provided as a part of the application.
If the work in opening, filling or maintaining or permanently paving and completely restoring the area of any street opening or excavation or right-of-way disturbance shall not be properly done or shall be unskillful or incompletely performed, based upon the evaluation of the Public Works Foreman and, if necessary, the Borough Engineer (to be paid for by the permittee) in their sole discretion, the Borough may, by letter to the permittee, declare the permittee to be in violation of the permit and shall provide an opportunity for the permittee to cure such violation. The violation shall be cured within five calendar days from the permittee's receipt of written notice. If such curative work has not been commenced and fully and satisfactorily completed within such time period, the Borough shall declare the permittee in violation of the permit and shall proceed to contract for such work as is required to fully restore the affected area to its approximate original condition, grade and appearance. In this event, any unreleased portion of the permit fee shall be retained by the Borough and treated as an escrow fund to be used by the Borough to satisfactorily complete such work. Any unused portion of the permit fee shall be returned in accordance with the provisions of § 479-9 hereof.
No new openings under an existing permit shall be made and no
new permit shall be issued to any person, firm, corporation or entity
where either the person, firm, corporation, or entity is in violation
of this article or the Borough has undertaken work to properly complete
the work required under a prior permit.
The Public Works Foreman, any member of his/her department or,
if deemed necessary, the Borough Engineer (to be paid for by the permittee)
shall have the right to observe and inspect all work done pursuant
to the permit. The Public Works Department shall ensure that all provisions
of this article and the terms and conditions of the permit are enforced
and complied with.
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 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 Allegheny County.
In the event that any person, corporation or entity commences
excavation or other disturbance in a Borough street or right-of-way
which requires a permit under this article without first obtaining
a permit, and such person does not immediately cease work upon notice
from either the Code Enforcement Officer, the Borough Engineer or
a Borough police officer, restore the affected area to allow traffic
to safely pass over the area (which shall include the placement of
a steel plate), and immediately apply for a permit, the Borough shall
be authorized to impound any equipment which continues to work at
the site after the cessation notice is provided.
[Adopted 11-18-2004 by Ord. No. 542]
For the purpose of this article, the following terms, phrases,
words and abbreviations shall have the meanings ascribed to them below.
Definitions of words defined in the Communications Act shall have
the meaning ascribed to them therein unless otherwise set forth in
this article. When not inconsistent with the context, words used in
the present tense include the future tense, words in the plural number
include the singular number and words in the singular number include
the plural number:
A person or entity:
With a direct or indirect ownership interest in the subject
entity of 5% or more or which controls such interest, including forms
of ownership such as general, limited liability companies and other
forms of business organizations and entities, but not including corporations;
With a stock interest in the subject entity where the subject
entity is a corporation and such stockholder or its nominee is an
officer or director of the permittee or who directly or indirectly
owns or controls 5% or more of the outstanding stock, whether voting
or nonvoting; or
Which controls permittee and/or is controlled by or is under
common control with such person or entity.
Any wire, optical fiber or other cable, and any related device,
apparatus or auxiliary equipment, for the purpose of voice, video,
or data transmission.
The Borough of Blawnox, Allegheny County, Commonwealth of
Pennsylvania, or its lawful successor, transferee or assignee thereof.
The Communications Act of 1934, as now or hereafter amended.[1]
Any structure, or section thereof, containing one or more
ducts, conduits, manholes, handholes or other such facilities in the
permittee's telecommunications system.
The Borough Council, the elected governing body of the Borough
of Blawnox.
A single enclosed raceway for conductors, optical fiber,
wire or other cable.
Including, without limitation, any pipes, conduits, wires,
cables, amplifiers, transformers, fiber optic lines, antennas, poles,
streetlights, ducts, fixtures and appurtenances and other like equipment
used in connection with transmitting, receiving, distributing, offering,
and providing telecommunications, utility and/or other services.
Federal Communications Commission, or successor governmental
entity thereto.
Any person, franchised, licensed, permitted or otherwise
lawfully occupying space in the public way.
Any authorization for use of the public way granted in accordance
with the terms of this article and the laws and policies of the Borough.
The holder of a valid permit issued pursuant to this article.
Any individual, sole proprietorship, partnership, association,
limited liability company, corporation or other form of organization
authorized to do business in the Commonwealth of Pennsylvania, and
includes any natural person.
The surface of, and the space above and below, any public
street, highway, turnpike, bridge, land path, alley, court, boulevard,
sidewalks, parkway, way, lane, public way, circle, or other public
right-of-way, including public utility easements, dedicated utility
strips, or rights-of-way dedicated for compatible uses and any temporary
or permanent fixtures or improvements located thereon now or hereafter
held by the Borough in the service area which shall entitle the Borough
and the permittee to the use thereof for the purpose of constructing,
leasing, operating and maintaining the telecommunications system.
Public way shall also mean any easement now or hereafter held by the
Borough within the service area for the purpose of public travel and/or
for utility and/or public service use dedicated for compatible uses,
and shall include other easements and/or rights-of-way as shall within
their proper use and meaning entitle the Borough and the permittee
to use thereof for the purposes of constructing, leasing, operating,
or maintaining permittee's telecommunications system over poles,
wires, cables, conductors, ducts, conduits, pedestals, vaults, manholes,
amplifiers, appliances, attachments, and other property as may be
ordinarily necessary and pertinent to the telecommunications system.
The definition of public way is subject to any exceptions contained
in 36 P.S. § 670-411.
The present municipal boundaries of the Borough and shall
include any additions thereto by annexation or other legal means.
Conduit facilities other than those occupied by the permittee
or any prior licensee and unoccupied duct(s) held by permittee as
for emergency or spare use.
The period consisting of a full calendar year, beginning
January 1 and ending December 31, unless otherwise provided in this
article.
[1]
Editor's Note: See 47 U.S.C. § 151 et seq.
A.
Permit required. It shall be unlawful for any person to construct, lease, maintain or operate a facilities within the public ways without first obtaining a permit from the Borough as set forth in this chapter, except as provided in § 479-17B. Each permit obtained, along with associated documents, shall be maintained on the job site and available for inspection upon request by any officer or employee of the Borough.
B.
Nonexclusive use. A permit for the right to use and occupy said public
ways, as defined above, shall not be exclusive in a permittee. This
rights-of-way ordinance shall not apply to use of the public ways
by a governmental entity or quasi-governmental entity.
C.
Not a cable system. Any permit granted hereunder does not authorize
the permittee to operate a cable television system.
D.
Not a pole attachment agreement. Any permit granted hereunder does
not authorize the permittee to attach equipment or facilities to any
pole or other structure for the intentional transmission or radiation
of radio frequency emissions or energy through the ether by any means
now known or hereafter developed. Further, the granting of a permit
does not authorize permittee to attach or to occupy any property owned
by the Borough, but for the public ways.
E.
Construction, excavation or work area. No permittee shall perform
construction, excavation, or work in an area larger or at a location
different, or for a longer period of time than that specified in the
permit or permit application. If, after construction, excavation,
or work is commenced under an approved permit, it becomes necessary
to perform construction, excavation, or work in a larger or different
area than originally requested under the application or for a longer
period of time, the permittee shall notify the Borough immediately
and within 24 hours shall file a supplementary application for the
additional construction, excavation, or work.
F.
Permit transferability or assignability. The applicant may subcontract
the work to be performed under a permit, provided that the permittee
shall be and remain responsible for the performance of the work under
the permit and all insurance and financial security as required. Permits
are transferable and assignable if the transferee or assignee posts
all required security pursuant to this article and agrees to be bound
by all requirements of the permit and this article.
G.
Any person or utility found to be conducting any excavation activity
within the public way without having first obtained the required permit(s)
shall immediately cease all activity (exclusive of actions required
to stabilize the area) and be required to obtain a permit before work
may be restarted. A surcharge to be set by Council resolution shall
be required in addition to all applicable permit fees.
H.
Permit application.
(1)
An applicant for a permit to allow construction, excavation, or work
in the public way under this section shall:
(a)
File a written application on forms furnished by the Borough
which include the following: the date of application; the name and
address of the applicant; the name and address of the developer, contractor
or subcontractor licensed to perform work in the public way; the exact
location of the proposed construction, excavation or work activity;
the type of existing public infrastructure (street pavement, curb
and gutter, sidewalks or utilities) impacted by the construction,
excavation or work; the purpose of the proposed construction, excavation
or work; the dates for beginning and ending the proposed construction,
excavation or work; proposed hours of work; itemization of the total
cost of restoration, based upon R.S. Means Estimating Standards or
at the discretion of the Borough, other published street repair cost
estimating standards; and type of work proposed.
(b)
Include an affirmative statement that the applicant or its contractor
is not delinquent in payments due the Borough on prior work.
(c)
Attach copies of all permits or licenses (including required
insurance, deposits, bonding, and warranties) required to do the proposed
work, and to work in the public way, if licenses or permits are required
under the laws of the United States, the Commonwealth of Pennsylvania,
or the ordinances or regulations of the Borough. If relevant permits
or licenses have been applied for but not yet received, provide a
written statement so indicating. Copies of any such permits or licenses
shall be provided to the Borough within 48 hours after receipt.
(d)
Provide a satisfactory plan of work acceptable to the Borough
showing protection of the subject property and adjacent properties.
(e)
Provide a satisfactory plan for the protection of existing landscaping
acceptable to the Borough, when the Borough determines that damage
may occur.
(f)
Include a signed statement verifying that all orders issued
by the Borough to the applicant, requiring the applicant to correct
deficiencies under previous permits issued under this article, have
been satisfied. This verification shall not apply to outstanding claims
that are honestly and reasonably disputed by the applicant, if the
applicant and the Borough are negotiating in good faith to resolve
the dispute.
(g)
Include with the application engineering construction drawings
or site plans for the proposed construction, excavation, or work.
(h)
Include with the application a satisfactory traffic control
and erosion protection plan for the proposed construction, excavation,
or work.
(i)
Include a statement indicating any proposed joint use or ownership
of the facility; any known existing facility or permit of the applicant
at this location; any known existing facility of others with which
the proposed installations might conflict; and the name, address and
telephone number of a representative of the applicant available to
review proposed locations at the site.
(j)
Pay the fees prescribed by this article.
(2)
Applicants shall update any new information on permit applications
within 10 days after any material change occurs.
(3)
Joint applications. Applicants may apply jointly for permits to work
in public way at the same time and place. Applicants who apply jointly
for permits may share in the payment of the permit fee. Applicants
must agree among themselves as to the portion each shall pay.
A.
Conditions of street occupancy. All transmission and distribution
structures, poles, other lines, and equipment installed or erected
by the permittee pursuant to the terms hereof shall be located so
as to cause a minimum of interference with the proper use of public
ways and with the rights and reasonable convenience of property owners
who own property that adjoins any of said public ways.
B.
Restoration of public ways. If during the course of permittee's
construction, operation, and/or maintenance of the facilities there
occurs a disturbance of any public way of permittee, permittee shall,
at its expense, replace and restore such public way to a condition
which existed immediately prior to such disturbance and in a manner
approved by the Borough. If permittee excavates the surface of any
public way, permittee shall be responsible for restoration of the
public way and its surface within the area affected by the excavation.
The Borough may, after providing notice to permittee, refill and/or
repave any opening made by permittee in the public way, and the expense
thereof shall be paid by permittee. The Borough reserves the right,
after providing notice to permittee, to remove and/or repair any work
done by permittee which, in the sole determination of the Borough
Engineer is inadequate. The cost thereof, including the cost of inspection
and supervision, shall be paid by the permittee. All excavations made
by permittee in the public way shall be properly safeguarded for the
prevention of accidents. All of permittee's work shall be done
in strict compliance with all applicable rules, regulations and ordinances
of the Borough.
C.
Relocation at request of the Borough. Upon its receipt of reasonable
advance notice except under exigent circumstances, the permittee shall,
at its own expense, locate, protect, support, temporarily disconnect,
relocate in the public way, and/or remove from the public way or other
property owned by the Borough by reason of traffic conditions, public
safety, street abandonment, freeway an street construction, change
or establishment of street grade, installation of sewers, drains,
gas or water pipes, electrical conduits or any other type of structures
or improvements by the Borough; provided, however, the permittee in
all such cases shall share proportionately with utility companies
in any federal, state, or county funds awarded to the Borough specifically
for any of the purposes enumerated above. Nothing in this section
shall be construed to require the Borough to make applications for
or seek a grant for any funds. Upon failure of the permittee to commence,
pursue, or complete any work required by law, (or by the provisions
of permittee's franchise, or any other applicable federal, state
or local law, ordinance, rule or regulation) to be done in any public
way or other public place within the time prescribed, and to the satisfaction
of the Borough, the Borough, at its option, may cause such work to
be done and the permittee shall pay to the Borough the cost thereof
in the itemized amounts reported by the Borough to the permittee within
30 days after receipt of such itemized report. But, the permittee,
upon prior approval of the Borough, may elect to abandon any or all
of the facilities rather than relocate it.
D.
Relocation at request of third party. The permittee shall, on the
request of any person holding a requisite lawful permit issued by
the Borough, temporarily raise or lower its wires to permit the moving
of any equipment, building, material or otherwise, provided: a) the
expense of such temporary raising or lowering of wires is paid by
said person, including, if required by the permittee, making such
payment in advance; and b) the permittee is given not less than 10
days advance written notice to arrange for such temporary wire changes.
The permittee may request the Borough to temporarily raise or lower
its wires to make other changes in its plant and equipment to accommodate
permittee's construction, which request shall be promptly considered
by the Borough.
E.
Trees and shrubbery. The permittee shall notify the Borough and all
affected property owners regarding permittee's need to trim trees
or other natural growth upon and overhanging public ways so as to
prevent the branches of such trees from coming in contact with the
facilities of the permittee; at the option of the Borough, such trimming
may be done by the Borough at the reasonable expense of the permittee,
or by the permittee under the Borough's supervision and direction
at the expense of the permittee. Trimming shall be limited to the
area required for clear facilities' passages and shall not include
major structural branches which materially alter the appearance and
natural growth habits of the tree. Permittee shall give the Borough
and all affected property owners five business days' prior written
notice of permittee's intent to trim trees or other natural growth
pursuant to this section.
F.
Use of permittee's equipment by the Borough. Except as already
set forth in this article and subject to any applicable state or federal
regulations or tariffs, the Borough shall have the right to make additional
use, for any purpose, of any poles or conduits controlled or maintained
exclusively by or for the permittee in any public way, provided that:
(1)
Such use by the Borough does not interfere with use by the permittee;
(2)
The Borough holds the permittee harmless from and against any and
all claims, demand, costs, and/or liabilities of every kind and nature
whatsoever arising out of such use of said poles or conduits, including,
but not limited to, reasonable attorneys' fees and costs; provided,
however, that the Borough shall not hold harmless from claims and
damages arising out of the willful or negligent acts caused by permittee;
and
(3)
At permittee's sole discretion, the Borough may be required
either to pay a reasonable rental fee or otherwise reasonably compensate
permittee for the use of such poles, conduits or equipment.
G.
Safety requirement. Construction, installation, and maintenance of
the facilities shall be performed in an orderly and workmanlike manner.
All cable, wires, conductors and other components, elements and parts
of the facilities shall be installed, where possible, parallel with
and in the same manner as electric and telephone lines. All such work
shall be performed in accordance with applicable safety code or technical
requirements, including but not limited to, National Electrical Safety
Code (National Bureau of Standards); National Electrical Code (National
Bureau of Fire Underwrites); Bell System Code of Pole Line Construction;
and applicable FCC and/or other federal and state regulations. Multiple
cable wires, lines, fiber optic cable, waveguides and/or other similar
facility configurations shall be arranged in parallel and bundled
with due respect for engineering considerations. The facilities shall
not endanger and/or interfere with the safety of persons or property
in the service area. In particular, permittee shall comply with all
federal laws and/or regulations, which govern plant signal leakage
and/or interference with communications media. Any antenna structure
used in the facilities shall comply with all construction, marking,
and lighting of antenna structure requirements of the United States
Department of Transportation (Federal Aviation Administration), the
Borough's zoning requirements and the FCC. If, at any time, it
is determined by the Borough and/or any other agency or authority
of competent jurisdiction that any part of the facilities is harmful
to the health and safety of any person, then the permittee shall,
at its own cost and expense, promptly correct all such conditions.
H.
Maps. Prior to beginning any construction, permittee shall provide
the Borough with a constructions schedule for work in the public ways
which schedule shall be updated as changed. Upon completion of initial
construction and upon completion of construction of any modification
to the facilities made after completion of initial construction, permittee
shall provide the Borough with the total amount of public ways, measured
linearly, occupied by permittee's facilities, with a map showing
the location of its installed facilities in the public ways, as built.
Such as-built maps shall be provided in both paper form as well as
in an electronic format for placement in the Borough's GIS system,
each in a form acceptable to the Borough Engineer. Annually thereafter,
permittee shall provide a map to the Borough showing the location
of permittee's facilities in the public ways on a scale of 150
feet per inch or whatever standard scale the Borough adopts for general
use.
I.
Aerial and underground construction. In those areas of the service
area where all of the transmission or distribution facilities in the
form of cables, wires, lines, fiber optic cable, waveguides and/or
other similar facilities of the respective public utilities providing
telephone communications and electric services are underground, the
permittee likewise shall construct, operate, and maintain all of its
transmission and distribution facilities underground. In those areas
of the service area where the transmission and/or distribution facilities
of the respective public utilities providing telephone communications,
and electric services are both aerial and underground, permittee shall
have the sole discretion to construct, operate, and maintain all of
its transmission and distribution facilities, or any part thereof,
aerially or underground. If at any time the Borough determines that
existing wires, cables or other like facilities of public utilities
anywhere in the service area shall be changed from an overhead to
an underground installation, the permittee shall also, at no expense
to the franchise authority, convert its facilities to an underground
installation. Nothing in this section shall be construed to require
the Borough to request such utility relocations. Permittee's
design and engineering specifications shall take into account the
existing landscaping of the property.
J.
Excavations. Permittee may make excavations in public ways for any
facility needed for the maintenance or extension of the permittee's
facilities, subject to obtaining excavation permits from the Borough.
Prior to doing such work, permittee must apply for, and obtain, appropriate
permits from the Borough, and give appropriate notices to any other
franchisees, licensees and/or permittees of the Borough, and/or other
units of government owning or maintaining facilities which may be
affected by the proposed excavation.
K.
Installation of service. All installation of facilities shall be
performed in a workmanlike manner, using materials of good and durable
quality with due regard to the preservation and protection of existing
structures. All work to be performed in, on, or about the dwelling
or structure of a customer or potential customer shall be performed
under the reasonable direction or with the consent of such customer
or potential customer.
L.
Maintenance of facilities. Permittee shall provide and put in use
all facilities necessary to control and carry permittee's services
so as to prevent injury to the Borough's property or property
belonging to any person within the Borough. Permittee, solely at its
own expense, shall repair, renew, change and improve said facilities
from time to time as may be necessary to accomplish this purpose.
Permittee shall not construct its facilities in a manner that requires
any customer, except the Borough, to install cables, ducts, conduits,
or other facilities, in, under or over the Borough's public ways.
M.
Emergency usage. Permittee shall comply with emergency or disaster
notification requirements of the Federal Communications Commission
and all state and all local emergency and/or disaster agencies.
N.
Technical performance and standards. All performance and technical
standards governing construction, reconstruction, installation, operation,
testing, maintenance and dismantling of the facilities provided herein
shall be in accordance with all FCC and/or other applicable federal,
state and local laws, ordinances and regulations.
O.
Reservation of Borough public ways. Nothing in any permit shall be
construed to prevent the Borough from constructing sewers, grading,
paving, repairing and/or altering any street and/or laying down, repairing
and/or removing water mains and/or constructing and/or establishing
any other public work or improvement. If any of the permittee's
facilities interferes with the construction or repair of any street
or public improvement, including construction, repair or removal of
a sewer or water main, the permittee's facilities shall be removed
or replaced in the manner the Borough shall direct; provided, however,
the Borough will cooperate with the permittee to identify alternate
locations within the public ways. Any and all such removal or replacement
shall be at the expense of the permittee. Should permittee fail to
remove, adjust or relocate its facilities by the date established
by the Borough Engineer's written notice to permittee, the Borough
may cause and/or effect such removal, adjustment or relocation, and
the expense thereof shall be paid by permittee, including all costs
and expenses incurred by the Borough due to permittee's delay.
P.
Common users. Permittee acknowledges that the public ways have a
finite capacity for containing conduits. Therefore, permittee agrees
that whenever the Borough Engineer determines it is impracticable
to permit construction of an underground conduit system by any person
which may at the time have authority from the Borough to construct
or maintain conduits or ducts in the public ways, the Borough Engineer
may require permittee to afford to such other person the right to
use permittee's surplus ducts or conduits in common with the
permittee, pursuant to the terms and conditions of an agreement for
use of surplus conduits and ducts being entered into by the permittee
and the licensee.
Q.
Notice to common users. The permittee shall give a licensee and the
Borough 120 days' advance notice of permittee's need to
occupy a licenses conduit and shall propose that the licensee take
the first feasible action listed:
(1)
Pay conduit rent to permittee designed to recover the cost of retrofitting
the conduit with multiplexing, optical fibers, or other space-saving
technology sufficient to meet the licensee's space needs; or
(2)
Pay conduit rent to permittee based on the cost of new conduit constructed
to meet the licensee's space needs; or
(3)
Vacate ducts that are no longer needed; or
(4)
Construct and maintain sufficient new conduits to meet the licensee's
space needs.
R.
Occupancy right. When two or more licensees occupy a section of conduit
facility, the last licensee to occupy the conduit facility shall be
the first to vacate or construct a new conduit. When conduit rent
is revised because of retrofitting of space-saving technology and/or
construction of new conduit, all licensees shall bear the revised
cost.
S.
Safety standards for licensees. All attachments shall meet local,
state, and federal clearance and other safety requirements, be properly
grounded and anchored, and meet the provisions of contracts executed
between the permittee and the licensee. The permittee may, at its
option, correct any attachment deficiencies and charge the licensee
for its costs. Each licensee shall pay the permittee for any fines,
fees, damages, or other reasonable costs the licensee's attachments
cause the permittee to incur.
T.
Removal of equipment. Upon its failure to comply with this article,
the Borough shall have the right to require the permittee to remove
at its own expense all portions of the facilities from all public
ways. The permittee shall, within six months after having been given
written notice, remove from the public ways all such property of such
facilities other than any which the Borough may permit to be abandoned
in place. In the event of such removal, the permittee shall promptly
restore the public way or other area from which such property has
been removed to a condition as good as that previously prior to such
work.
(1)
Any property of the permittee remaining in place six months after the permittee is given notice pursuant to § 479-18T may, at the option of the Borough, be considered permanently abandoned. The Borough may extend such time not to exceed an additional 90 days.
(2)
Any property of permittee which the Borough permits to be abandoned
in place shall be abandoned in such manner as the Borough shall prescribe.
Subject to the provisions of any utility joint use attachment agreement,
upon permanent abandonment of the property of the permittee in place
the property shall become that of the Borough, and the permittee shall
submit to the Borough an instrument in writing, to be approved by
the Borough, transferring to the Borough the ownership of such property.
A.
Permit fee.
(1)
Before a permit is issued pursuant to this article, the applicant
shall pay to the Borough a permit fee, which shall be determined in
accordance with a fee schedule adopted by the Council by resolution.
Fees will be reasonably related to the costs inherent in managing
the public way. As used in this article, these costs include, but
are not necessarily limited to, the costs of permitting rights-of-way
occupants, verifying rights-of-way occupation, mapping rights-of-way
occupations, inspecting job sites and rights-of-way restorations,
administering this article, and costs incurred by the Borough relating
to the degradation of the public ways, i.e., the cost to achieve a
level of restoration as determined by the Borough at the time the
permit is issued.
(2)
The portion of the permit fee relating to degradation/restoration
costs shall be reduced by the Borough in cases where the applicant
demonstrates to the satisfaction of the Borough that the excavation
proposed will be used by two or more entities, legally and financially
unrelated, for the installation, maintenance or repair of facilities.
The degradation/restoration cost portion of the permit fee shall be
further reduced in cases where the applicant demonstrates to the satisfaction
of the Borough that the excavation to be made will be commenced and
completed during the twenty-four-month period immediately prior to
the scheduled repaving or resurfacing of a street, as indicated in
the most recent edition of the Borough's repaving plan.
(3)
Any permit for use or occupation of the public ways, where there
is no underground construction involved, shall not require payment
of a degradation fee as part of the permit fee.
(4)
An applicant may avoid the imposition of a degradation/restoration
fee if it agrees to perform the required restoration of the public
way to the Borough's standards. The applicant shall decide at
the time of application whether the applicant will perform the required
restoration, and the applicant's decision shall be final.
(a)
If the existing roadway pavement section is six inches or less,
the disturbed pavement area will be removed and the subgrade will
be scarified and recompacted.
(b)
If the existing roadway pavement section is greater than six inches, the restoration area is as provided in § 479-19A(4)(a) above, together with restoration requirements to rotomil two inches and overlay the restoration limit area.
(c)
In all cases, the longitudinal limits of restoration will extend
past the street cut by a minimum of 10 feet in each direction.
(5)
That portion of any permit fee relating to degradation/restoration
costs shall be segregated by the Borough into an account to cover
general street maintenance and construction.
A.
Permittee shall save the Borough, its agents, employees and elected
and appointed officials, harmless from and against all claims, damages,
losses and expenses, including reasonable attorney's fees, sustained
by the Borough on account of any suit, judgment, execution, claim
or demand whatsoever arising out of the construction, leasing, operation
or maintenance of the telecommunications system authorized herein,
whether or not any act or omission complained of is authorized, allowed
and/or prohibited by the franchise and the rights granted thereunder.
B.
Insurance requirements.
(1)
Permittee shall obtain and maintain in full force and effect throughout
the term of this franchise insurance with an insurance company licensed
to do business and doing business in the Commonwealth of Pennsylvania
and acceptable to the Borough. All companies will be required to be
rated A-VII or better by A.M. Best or A better by Standard and Poors.
Permittee shall provide the Borough with proof of such insurance so
required at the effective date. The Borough reserves the right to
review these insurance requirements during the franchise, and upon
reasonable advance notice to permittee, to reasonably adjust insurance
coverage and their limits when deemed necessary and prudent by the
Borough, based upon changes in statutory law, court decisions, and/or
the claims history of the industry and/or the permittee.
(2)
Subject to permittee's right to maintain reasonable deductibles
in such amounts as are approved by the Borough, permittee shall obtain
and maintain in full force and effect for the duration of this franchise,
at permittee's sole expense, insurance coverage in the following
types and minimum amounts:
|
Type
|
Amount
|
|---|---|
|
Workers' compensation and statutory employers liability
|
$100,000/$500,000/$100,000
|
|
Commercial general (public) liability — to include coverage
for the following where the exposure exists:
|
Combined single limit for bodily injury and property damages
$2,000,000 per occurrence or its equivalent
|
|
Premises operations
| |
|
Independent contractors
| |
|
Products/completed operations
| |
|
Personal injury
| |
|
Contractual liability
| |
|
Explosion, collapse and underground property damage
| |
|
Comprehensive automobile insurance coverage for loading and
unloading hazards, for:
|
Combined single limit of bodily injury and property damage $1,000,000
per occurrence or its equivalent
|
|
Owned/leased automobiles
| |
|
Non-owned automobiles
| |
|
Hired automobiles
|
(3)
The Borough shall receive without expense copies of certificates
of insurance evidencing coverage stated above. The Borough may make
reasonable requests for deletion, revision or modification of particular
policy terms, conditions, limitations or exclusions, except where
policy provisions are established by law or regulation binding upon
either the Borough or permittee or upon the underwriter for any of
such policies. Upon request for deletion, revision or modification
by the Borough, permittee shall exercise its best reasonable efforts
to accomplish the changes and shall pay the cost thereof.
(4)
Permittee agrees that with respect to the above-required insurance,
all insurance certificates will contain the following required provisions:
(a)
Name the Borough and its officers, employees, Council members
and elected and appointed officials as additional insured parties
(as the interests of each insured may appear) as to all applicable
coverage (except workers' compensation).
(b)
Provide for 30 days' written notice to the Borough for
cancellation, nonrenewal, or material change.
(c)
Provide that all provisions of this franchise concerning liability,
duty, and standard of care, including the indemnity provisions, shall
be underwritten by contractual coverage sufficient to include such
obligations within applicable policies, subject to policy terms and
conditions.
(5)
Companies issuing the insurance polices shall have no recourse against
the Borough for payment of any premiums or assessments which all are
set at the sole risk of the permittee. Insurance policies obtained
by permittee shall provide that the issuing company waives all rights
of recovery by way of subrogation against the Borough in connection
with damage covered by these policies.
C.
Bond requirements.
(1)
Permittee shall obtain and maintain, at its sole cost and expense,
and file with the Borough a corporate surety bond with a company authorized
to do business in the Commonwealth of Pennsylvania and found acceptable
by the Borough in the amount of 15% of permittee's estimated
project costs to secure permittee's performance of its obligations
and faithful adherence to all requirements of this franchise. The
Borough shall have the right to verify all such estimated project
costs and to require permittee to increase the amount of said bond
accordingly.
(2)
The rights reserved to the Borough with respect to the bond are in
addition to all other rights of the Borough, whether reserved by this
franchise or authorized by law; and no action, proceeding or exercise
of a right with respect to such bond shall affect the Borough's
rights to demand full and faithful performance under this franchise
or limit permittee's liability for damages.
(3)
The bond shall contain the following endorsement:
It is hereby understood and agreed that this bond may not be
cancelled by the surety nor any intention not to renew be exercised
by the surety until 60 days after receipt by the Borough of Blawnox,
by registered mail, or written notice of such intent.
D.
All expenses of the above-noted insurance and bond shall be paid
by the permittee.
E.
The insurance policies mentioned herein shall contain an endorsement
stating the following:
Should any policies of insurance be cancelled or coverage be
reduced before the expiration date of said policies of insurance,
the issuer shall deliver 30 days advance written notice to the Borough.
F.
Neither the provisions of this agreement nor any insurance accepted
by the Borough pursuant hereto, nor any damages recovered by the Borough
thereunder, shall be construed to excuse faithful performance by the
permittee and/or limit the liability of the permittee under the franchise
issued hereunder and/or for damages, either to the full amount of
the bond or otherwise.
A.
General. In addition to all other rights, remedies and powers reserved
and/or retained by the Borough under this article or otherwise, the
Borough reserved the right to forfeit and revoke any permit and all
rights and privileges of permittee in the event of willful or repeated
violation of this article.
B.
Penalties. Any person which commits or suffers the violation of this
article shall, upon being found liable in a civil enforcement proceeding
commenced by the Borough, pay a fine of $600 plus all court costs,
including reasonable attorneys fees incurred by the Borough. A separate
offense shall arise for each day or portion thereof in which a violation
is found to exist or for each section of this article which is found
to have been violated. In addition to civil actions before a Magisterial
District Judge, the Borough may enforce this article in an action
in equity brought in the Allegheny County Court of Common Pleas.
A.
Compliance with applicable laws and ordinances. The permittee shall,
at all times during the term of this agreement, be subject to the
exercise of the police power by the Borough and to such other lawful
ordinances, rules and regulations as the Borough shall hereafter adopt.
There is hereby reserved to the Borough every right and power which
is required to be herein reserved or provided by any ordinance, rule
or regulation of the Borough, and the permittee shall comply with
any action or requirements of the Borough in its exercise of such
right or power heretofore or laws, rules and regulations of the Borough,
County of Allegheny, Commonwealth of Pennsylvania, and the United
States of America which are now in effect or hereafter enacted.
B.
Conflict. Whenever the requirements of this article are in conflict
with other requirements of the ordinances of the Borough of Blawnox,
the most restrictive, or those imposing the highest standards shall
govern, and award of a franchise by the Borough does not constitute
a waiver or impairment of the rights of the Borough at law or equity
now or hence forth existing to proceed versus permittee for enforcement
of the franchise or violation of the franchise or ordinances of the
Borough.
C.
Effective date. This article shall become effective five days after
the date of its enactment.
