[HISTORY: Adopted by the Town Council of the Borough of West View 4-11-2001 by Ord. No. 1399. Amendments noted where applicable.]
Unless the context specifically indicates otherwise, the meaning of the terms used in this chapter 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 of West View which the applicant must complete in order to obtain a right-of-way permit.
- The building, erection, or installation in, on or under a right-of-way. It does not include maintenance or repair of the equipment in a right-of-way or a single line extension from equipment in the right-of-way.
- CONSTRUCTION PERMIT
- The document that must be obtained before a person may perform construction in a right-of-way.
- An interruption of service or a condition that poses a clear and immediate danger to life or health, or a 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.
- When used in conjunction with rights-of-way means over, above, in, within, on or under right-of-way.
- Work of a minor nature that will keep an existing condition from failure or decline.
- PERMIT HOLDER
- The person obtaining a right-of-way permit.
- Any individual, firm, partnership, association, corporation, company or other business entity.
- The surface and space in, on, above and below any real property in which the Borough of West View has an interest in law or in equity, including, but not limited to, any public street, boulevard, avenue, road, highway, easement, freeway, lane, alley, court, sidewalk, parkway, river, tunnel, viaduct, bridge, park, green space or any other place.
- 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.
- RIGHT-OF-WAY PERMIT or PERMIT
- A written authorization granted by the Borough of West View to an applicant for the use of the rights-of-way in the Borough of West View for wires, lines, cables, conduits, pipes, supporting structures and other facilities.
- TELECOMMUNICATIONS SERVICE
- The service offered to customers involving the transmission of video, data and/or voice communications and/or content, both active and interactive, and associated usage.
- TELECOMMUNICATION SYSTEM
- A system used or to be used to provide telecommunication 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 installing, constructing, 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 chapter 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 of West View, the applicant shall submit written evidence of its applications for or receipt of all such approvals, permits or authorizations.
Nothing in this chapter shall be construed as a waiver of any ordinances or regulations of the Borough of West View or the Borough of West View's right to require perspective or current right-of-way permit holders to secure and remit payment for any and all 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 of West View, 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. Specifically, the application shall request: 1) a brief description of the telecommunications service or services to be offered or provided in or through the municipality; 2) specific information regarding the equipment it proposes to place or currently maintains in the rights-of-way; 3) the expected physical burden that such equipment will place or does place on the rights-of-way; and 4) whether the equipment will or does have a detrimental effect on public safety as it relates to the rights-of-way. If the completed application does not fully provide such requested information, the Borough of West View 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 the right-of-way permit.
Upon submission of a fully completed application to the Borough of West View and the accompanying fee, the Borough shall review the application as follows. The Borough of West View shall grant or deny such applications within 45 days. If the Borough of West View fails to grant or reject such application within the time period specified above, the application shall be deemed approved. In each case, the Borough of West View 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 of West View may use such outside experts as it deems necessary. In the event the Borough of West View deems it necessary to employ an outside expert to advise the municipality with respect to a particular application, the reasonable costs of such expert shall be borne by the applicant.
The right-of-way permit shall be issued for a period of one year. Permit holders may apply for a renewal of a right-of-way permit prior to its expiration. The Borough of West View 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 the Borough of West View property or the right-of-way without the prior consent of the Borough of West View (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 right-of-way;
The permit holder failed to pay any of the fees required under this chapter;
The permit holder failed to comply with construction standards in accordance with the provisions contained in § 222-8 below;
If the Borough of West View 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 of West View reasonably determines that the event is an emergency, in which case the Borough of West View 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 of West View shall be permitted to immediately suspend the right-of-way permit. A suspension shall be brought to the attention of the Town Council at its next meeting at which time the Town Council shall be permitted to uphold or withdraw the suspension. The permit holder shall be provided an opportunity to be heard at such meeting.
Except in the case of an emergency, before commencing any construction in the rights-of-way, a person shall submit to the Borough of West View detailed plans of the proposed construction activity. Such plans shall include the type of construction activity, the equipment proposed to be installed or erected, the specific locations of the construction activity and the scheduled beginning and ending dates of the planned construction. Such plans shall also include the name(s), address(es) and experience of any and all subcontractors whom applicant intends to utilize. Such information may be submitted concurrently with an application for a right-of-way permit.
Upon submission of all such information required in Subsection A above, the Borough of West View shall review such information and either grant or deny a construction permit within 45 days. If the Borough of West View fails to grant or deny the construction permit within such time period, the permit shall be deemed granted. In each such case, the Borough of West View shall review the information provided herein to determine whether such construction would have a detrimental impact on public safety as it relates to the rights-of-way. The Borough of West View may impose conditions on the construction permit regulating the times, locations, and manner of construction to preserve effective traffic flow, prevent hazardous road conditions and/or minimize impacts.
Each new applicant for a right-of-way permit shall include with its application an application fee in the amount of $500. This fee is directly related to the Borough of West View 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, inspection costs, administrative costs, costs of maintaining the rights-of-way and costs of degradation of streets and right-of-way property. 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. If the applicant applies for a construction permit concurrently with the application for a right-of-way permit, then the application fee contained herein shall apply to both the right-of-way permit and the construction permit.
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 $300. This fee is directly related to the Borough of West View'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.
Each applicant for a construction permit shall include with its application an application fee in the amount of $200. This fee is directly related to the Borough of West View's costs in reviewing the application and determining time, place and manner restrictions on the construction activity. If the application for a construction permit is denied, this fee shall not be refunded. If the application is granted, then the applicant shall pay, within 30 days of the presentation of a statement, the Borough of West View's actual costs based on the hourly rate established by resolution of the Town Council. Such actual costs include, but are not limited to, costs of disruption and rerouting of traffic, inspection costs and administrative costs.
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 of West View as a result of the permit holder's use of the rights-of-way, provided that the Borough of West View 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. Examples of extraordinary or unusual costs include, but are not limited to, the costs of obtaining and operating a backhoe, dump truck or other heavy equipment used to repair the right-of-way, overtime or special pay for police officers or other emergency services. The statement of such expenses presented to the permit holder shall be directly related to the Borough of West View'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 of West View's right to suspend or terminate the permit according to the terms of this chapter.
The Borough of West View 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 of West View 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 of West View 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 affect on public safety as it relates to the right-of-way.
The Borough of West View 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 of West View 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.
Whenever a permit holder or any of its subcontractors shall disturb any pavement, sidewalk or other public property in order to perform any underground activities, the permit holder will fully comply by registering with Pennsylvania's One Call System pursuant to 73 P.S. § 176 et seq. Such permit holder shall provide the Borough of West View with GPS information showing planned locations and reference points for equipment to be installed. Each permit holder shall perform construction activity in a manner consistent and in compliance with the detailed plans it submitted to the Borough of West View and all applicable federal, state and local laws and regulations.
Whenever a permit holder or any of its subcontractors shall cause damage to the right-of-way or to Borough of West View property in the right-of-way, the permit holder shall restore such right-of-way or property within 30 days, weather permitting.
The telecommunications system shall not endanger or interfere with the safety of persons or property within the Borough of West View. 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 system so that conditions that could develop into safety hazards shall be corrected before they become a hazard.
Except in the case of an emergency, at least three days prior to the commencement of any construction activity, permit holder shall notify nearby residents of such construction activity in a manner which is satisfactory to the Borough of West View. The name of the permit holder shall be clearly disclosed to such residents.
All construction activity shall be performed in an orderly and workmanlike manner, and in close coordination with public utilities serving the Borough of West View 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.
A permit holder shall, at its sole cost and expense, indemnify and hold harmless the Borough of West View, 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 of West View 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 judgements, injuries, liabilities, damages, 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 municipality harmless for claims caused by the Borough of West View'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, workers' disability, and vehicle insurance in such form and amount as shall be determined by the Borough of West View as set forth in the permit. A permit holder shall name the Borough of West View as an additional insured on its liability insurance policies. All required insurance coverage shall provide for 30 days' notice to the Borough of West View in the event of material alteration or cancellation of such coverage prior to the effective date of such material alteration or cancellation.
A permit holder shall annually provide the Borough of West View, upon application for renewal of the permit, or upon request, the current maps of the horizontal and vertical locations of its existing installations and a summary of all additions and deletions of equipment in the rights-of-way, unless no changes have occurred in the previous year. If no changes have occurred in the previous year, permit holder shall so inform the Borough of West View.
A permit holder shall submit to the Borough of West View such reasonable information directly related to the permit holder's use and occupation of the rights-of-way as the Borough of West View may request. All information provided to the Borough of West View shall be maintained by the Borough of West View as proprietary and confidential if such information is designated in good faith as such prior to the time it is provided to the Borough of West View.
A right-of-way permit may be transferred or assigned, upon 30 days written notice to the Borough of West View, provided that the transferee/assignee agrees, in writing, to comply with all of the obligations and requirements contained in this chapter.
A permit holder may be required, prior to construction, to obtain a performance bond in a reasonable amount set by the Borough of West View based upon the construction cost of the equipment to be installed in the rights-of-way and the extent of the disturbance of such rights-of-way. The performance bond shall ensure the permit holder's faithful performance of its construction obligations. The Borough of West View may reduce or cancel the bond requirement when construction is completed.
In addition to all other rights and powers reserved by the Borough of West View, the Borough of West View reserves the right to terminate a permit and all rights and privileges of a permit holder for any of the following reason:
A permit holder fails, after 30 days prior written notice, to comply with any of the material provisions of the permit or this chapter;
A permit holder becomes insolvent, unable or unwilling to pay its debts, or is adjudged bankrupt;
All or part of a permit holder's facilities are sold under an instrument to secure a debt and are not redeemed by the permit holder within 90 days from such sale;
A permit holder attempts to or does practice any fraud or deceit in its conduct or relations with the Borough of West View under the permit;
The Borough of West View condemns all of the property of a permit holder within the Borough of West View by the lawful exercise of eminent domain;
The permit holder abandons the telecommunication system.
No termination shall be effective unless and until the Town Council shall have adopted a resolution setting forth the cause and reason for the termination and the effective date, which resolution shall not be adopted without 30 days prior notice to permit holder and an opportunity for the permit holder to be heard before the Town 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, 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 of West View may deem any property not removed as abandoned and the Borough of West View 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 the Borough of West View.
During the term of the permit, if the permit holder decides to abandoned or no longer use all or part of its telecommunications system, it shall provide the Borough of West View with written notice of its decision at least 30 days prior to such decision, which notice shall describe the equipment and its location. The Borough of West View shall have the right to require the permit holder to remove the equipment upon 60 days prior written notice to the permit holder. If such removal is not completed within six months of such notice, the Borough of West View may remove it at the permit holder's expense.
If the Borough of West View has reason to believe that the permit holder violated any of the terms of this chapter, it shall notify the permit holder, in writing, of the nature of the violation and the section of this chapter which it believes has been violated. The permit holder shall have 20 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 of West View may, in its reasonable judgement, 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.
The Borough of West View, by granting any permit under this chapter, does not waive, lessen, impair or surrender the lawful police powers vested in the Borough of West View under applicable federal, state and local laws pertaining to the regulation or use of the rights-of-way.
The provisions of this chapter shall be imposed upon and enforced against all persons requiring a permit from the Borough of West View.