[HISTORY: Adopted by the Borough Council of the Borough of Clarion 12-1-2009 by Ord. No. 2009-767. Amendments noted where applicable.]
Streets and sidewalks — See Ch. 185.
The purpose of this Rights-of-Way Ordinance ("this chapter") is to:
Assist Clarion Borough ("the Borough") in managing its public rights-of-way with respect to telecommunications services providers in accordance with applicable law;
Regulate the erection, construction, reconstruction, installation, operation, maintenance, repair and removal of a telecommunications system in, upon, along, across, above, over, under or in any manner connected with the public rights-of-way of the Borough, as now or in the future may exist; and
Provide the Borough with appropriate compensation for occupation and use of the Borough's rights-of-way for a telecommunications system and for the cost of regulating providers of telecommunications services consistent with this chapter and applicable law.
The Borough Manager, or the Borough Manager's designated representative, shall serve as the single point of contact within the Borough for all persons regulated under this section.
The Borough Manager shall coordinate all contacts with other Borough departments as necessary to facilitate issuance of any and all permits required by the Clarion Borough Code.
The Borough Manager shall coordinate the preparation of all policies and forms as necessary for the implementation of this chapter with the approval of the Borough Council.
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, which the applicant must complete in order to obtain a right-of-way or construction permit.
- The building, 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.
- CONSTRUCTION PERMIT
- The written authorization granted by the Borough to an applicant in order to perform construction in a right-of-way.
- A condition that poses a clear and immediate danger to public safety, including damage of life, 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.
- Any person who has specialized skill or knowledge in technical, legal, engineering, construction or related fields and who provides assistance to the Borough regarding any matter included in this chapter.
- Work of a minor nature that will keep an existing condition from failure or decline.
- PERMIT HOLDER
- The person who has obtained a right-of-way permit.
- Any individual, firm, partnership, association, corporation, company or other business entity.
- RESTORE or RESTORATION
- The process by which a right-of-way is returned to a state that is as good as or better than its condition was prior to the construction.
- RIGHT-OF-WAY or PUBLIC RIGHT-OF-WAY
- The surface and space in, on, over, across, along, under 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, bridge, freeway, alley, court or any other place which is under the jurisdiction of the Borough, other than real property owned in fee by the Borough.
- RIGHT-OF-WAY PERMIT or PERMIT
- A written authorization granted by the Borough to an applicant for use of the rights-of-way in the Borough for the installation, operation and/or maintenance of equipment.
- 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 as sent and received.
- TELECOMMUNICATIONS SERVICES
- The offering of telecommunications for a fee directly to the public or to users who will make telecommunications available directly to the public, regardless of the facilities used.
- TELECOMMUNICATIONS SYSTEM
- A system that offers 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.
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. Upon the request of the Borough, the applicant shall submit written evidence of its applications for or receipt of all such approvals, permits or authorizations.
Nothing in this chapter shall be construed as a waiver of any other ordinances or regulations of the Borough or the Borough's right to require prospective or current right-of-way permit holders to secure and remit payment for any and all other required permits or authorizations.
A right-of-way permit shall only be granted after an applicant has completed an application in the form that has been prescribed by the Borough, which form may be revised from time to time. Upon request, an applicant shall be provided with a copy of the then current application for a right-of-way permit. The application shall request information regarding the applicant's proposed or actual physical use and occupation of the rights-of-way. The applicant shall provide specific information regarding the equipment it proposes to place or currently maintains in the rights-of-way. If the completed application does not fully provide such requested information, the Borough may request such additional information as is necessary to enable it to make a determination regarding the physical use and occupation of the rights-of-way by the applicant. For purposes of determining the commencement of the Borough's review process, the application shall be deemed to have been filed on the day all information requested by the Borough has been received by the Borough.
Upon the filing 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 90 days of its filing. If the Borough denies the application, it shall provide a written response to the applicant explaining the basis for denial. If the Borough fails to grant or reject such application within the time period specified above, the application shall be deemed approved. In each case, the Borough shall review the application to determine whether such use would have a detrimental effect on public safety as it relates to the rights-of-way or would place an undue physical burden on the rights-of-way.
In considering an application, the Borough may use such experts as it deems appropriate to make an informed decision. In the event the Borough deems it necessary to employ an outside expert or experts to advise the Borough with respect to a particular application, the reasonable costs of such expert or experts shall be borne by the applicant.
The right-of-way permit shall be issued for a period of one year. Permit holders shall apply for a renewal of a right-of-way permit at least 60 days prior to its expiration. The Borough may suspend such right-of-way permit in the event any one or more of the following has occurred:
The permit holder shall have caused damage to Borough property or the right-of-way without the prior consent of the Borough (except in the case of an emergency) and without completing proper restoration.
The permit holder or the permit holder's equipment in the right-of-way has had a detrimental effect on public safety as it relates to the permit holder's use of the rights-of-way.
The permit holder failed to pay any of the fees required under this chapter.
The permit holder failed to comply with construction standards in accordance with the provisions contained in § 172-10 below.
The permit holder failed to indemnify, hold harmless and insure the Borough in accordance with the provisions contained in § 172-11 below.
The permit holder failed to procure and/or maintain a performance or construction bond for the benefit of the Borough in accordance with the provisions contained in § 172-14 below.
The permit holder provided false, incomplete or misleading information on the right-of-way or construction permit application.
If the Borough has reason to believe that one or more of the above events has occurred, it shall notify the permit holder in writing. The permit holder shall have 30 days to cure the violation, unless the Borough reasonably determines that the event is an emergency, in which case the Borough may impose a shorter time period to cure the violation.
If the permit holder fails to cure the violation within the specified time period, the Borough may immediately suspend the right-of-way permit. A suspension shall be brought to the attention of the Borough Council at its next meeting, at which time the Borough 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 apply for and obtain a construction permit. A construction 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 current application for a construction permit. Such application shall request detailed plans of the proposed construction activity. Such plans shall describe: 1) the type of construction activity; 2) the equipment proposed to be installed or erected; (3) the specific locations of the construction activity; and (4) the scheduled beginning and ending dates of all planned construction. For purposes of determining the commencement of the Borough's review process, the application shall be deemed to have been filed on the day all information requested by the Borough has been received by the Borough.
Upon the filing of a fully completed application and the accompanying fee, the Borough shall review such information and either grant or deny a construction permit within 90 days. If the Borough denies the construction permit application, the Borough will provide a written response to the applicant explaining the basis of the denial. If the Borough fails to grant or deny the construction permit within the time period specified above, the application shall be deemed granted. In each case, the Borough shall review the application to determine whether such construction would have a detrimental impact on public safety as it relates to the rights-of-way. The Borough 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 noise impacts.
Each new applicant for a right-of-way permit shall include with its application an application fee, which shall be the greater of the following:
[Amended 11-19-2013 by Ord. No. 2013-796]
A per-linear-foot fee based on the per linear foot (not number of lines or capacity) of the telecommunications system located in the rights-of-way in the Borough equal to $0.40 per linear foot of underground and $0.30 per linear foot of overhead telecommunications equipment in the rights-of-way; or
Two thousand dollars.
This fee is directly related to the Borough's costs in reviewing the application 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: 1) costs of maintaining the rights-of-way; 2) costs of degradation of streets and right-of-way property; 3) administrative costs related to the rights-of-way; 4) traffic control costs pertaining to work in the rights-of-way; and 5) 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.
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 as described in Subsection A above. 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: 1) costs of maintaining the rights-of-way; 2) costs of degradation of streets and right-of-way property; 3) administrative costs related to the rights-of-way; 4) traffic control costs related to work in the rights-of-way; and 5) 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.
Each applicant for a construction permit shall include with its application an application fee in the amount of $500. This fee is directly related to the Borough'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 also pay, within 30 days of the presentation of a statement, the Borough's actual costs directly related to the applicant's construction activity based on the hourly rate established by resolution of the Borough 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 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. Examples of extraordinary or unusual costs include, but are not limited to, the cost of obtaining and operating a backhoe, dump truck or other heavy equipment used to repair the right-of-way, overtime or special pay for public safety and/or public works personnel and/or the cost of hazardous waste cleanup or other emergency services. The statement of such expenses presented to the permit holder shall be directly related to the Borough's actual costs.
Permit holders sharing the same conduit or within any additional conduit located in the same right-of-way shall each pay a full fee;
Permit holders sending signals over another permit holder's existing line or a line that is leased to another, and upon which fees are already paid, are not subject to additional fees; and
Permit holders using the same line to provide cable television service and to provide telecommunications services shall be subject to both a cable television franchise fee and all fees set by this chapter.
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 2% per month 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 chapter.
The Borough shall have the right to limit the placement of new or additional equipment in the right-of-way if there is insufficient space to reasonably accommodate all requests to occupy and use the rights-of-way. The Borough shall consider requests for occupying and using the rights-of-way in the order of receipt of fully completed applications for right-of-way permits. The Borough shall strive, to the extent possible, to accommodate all requests, but shall be guided by the physical condition of the right-of-way and whether such use would have a detrimental effect on public safety as it relates to the right-of-way.
The Borough shall have the right to monitor the telecommunications systems and the equipment related thereto located in the rights-of-way in order to prevent interference between and among such systems and equipment.
A permit holder shall allow the Borough to make inspections of any part of the permit holder's telecommunications system located in the rights-of-way at any time upon three days' notice or, in case of an emergency, upon demand.
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 with 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 pursuant to § 172-7A above and all applicable federal, state and local laws and regulations.
Whenever a permit holder or any of its subcontractors shall cause damage to private property, the public right-of-way or to Borough property in the public right-of-way, the permit holder shall restore such right-of-way or property within 30 days of the occurrence of the damage. In the event that the permit holder fails to restore the right-of-way or Borough property to its former condition, the Borough may repair such damage and assess all such costs of such repair to the permit holder. If a permit holder shall cause damage to any tree on public or private property, such permit holder shall either replace the tree with a tree of similar quality or fully compensate the property owner for any damage to such tree.
The telecommunications system 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 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, the permit holder shall notify nearby residents of such construction activity in a manner that is satisfactory to the Borough. 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, following accepted industry construction procedures and practices.
All 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.
Where a permit holder installs equipment underground, such equipment must be installed at a minimum depth of 48 inches or at least six inches below existing utility lines, whichever is lower. All 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 all public utilities.
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 to public or private property 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, at all times during the life of a permit, carry itself and require all of its subcontractors to carry commercial liability, 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 as set forth in the permit. A permit holder shall name the Borough as an additional insured on its liability insurance policies for which 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. A 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.
A permit holder shall annually provide the Borough, upon application for renewal of the permit and upon request, a current map 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 changes have occurred in the previous year, the permit holder shall so inform the Borough in writing.
A permit holder shall submit to the Borough such reasonable information directly related to the permit holder's use and occupation of the rights-of-way as the Borough may request. All information provided to the Borough shall be maintained by the Borough as proprietary and confidential if such information is designated in good faith as such prior to the time it is provided to the Borough.
A right-of-way permit may be transferred or assigned, 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 chapter. The transferee/assignee shall so notify the Borough in writing at least 30 days prior to the transfer or assignment.
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 that is licensed to do business in Pennsylvania in an amount determined by the Borough. The bond shall ensure the permit holder's faithful performance of its obligations contained in this chapter. The bond shall be a continuing obligation during the entire term of any right-of-way permit and/or construction permit issued in accordance herewith.
None of the provisions of this § 172-14, nor any bond accepted by the Borough pursuant hereto, nor any damages recovered by the Borough thereunder, shall be construed to excuse the faithful performance by or limit the liability of the permit holder under this chapter or any permit issued in accordance herewith or for damages either to the full amount of the bond or otherwise.
In addition to all other rights and powers reserved by the Borough, the Borough reserves the right to terminate a permit and all rights and privileges of a permit holder for any of the following reasons:
A permit holder repeatedly fails, after 30 days' prior written notice, to comply with any of the material provisions of the permit or this chapter;
A permit holder attempts to or practices any fraud or deceit in its conduct or relations with the Borough;
The Borough condemns all of the property of a permit holder within the Borough by the lawful exercise of eminent domain; or
The permit holder abandons the telecommunications system.
No termination shall be effective unless and until the Borough Council shall have adopted a resolution setting forth the cause and reason for the termination and the effective date, which resolution shall not be adopted without 30 days' prior notice to the permit holder and an opportunity for the permit holder to be heard and to present evidence before the Borough Council on the proposed resolution.
Upon expiration or termination of the permit, if the permit is not renewed, the permit holder shall, upon 60 days' prior written notice to the permit holder, commence to remove its equipment from the rights-of-way and shall restore said areas. If such removal is not completed within six months of such notice, the Borough may deem any property not removed as abandoned and the Borough may remove it at the former permit holder's expense. Except as otherwise provided, the permit holder shall not remove any underground cable or conduit which requires trenching or other opening of the streets unless it is ordered to be removed by the Borough based upon a determination, in the sole discretion of the Borough, that removal is required to eliminate or prevent a hazardous condition or promote future utilization of the streets and rights-of-ways for public purposes.
During the term of the permit, if the permit holder decides to abandon or no longer use all or part of its telecommunications system, it shall provide the Borough with written notice of its abandonment at least 30 days prior to such decision, which notice shall describe the equipment and its location.
The Borough may request the permit holder to declare the 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 60 days, or such portions of the telecommunications system shall be deemed abandoned.
The Borough shall have the right to require the permit holder to commence to remove the abandoned telecommunications system in part or in total upon 60 days' prior written notice to the permit holder. If such removal is not completed within six months of such notice, the Borough may remove it at the permit holder's expense.
If the Borough has reason to believe that the permit holder violated any of the terms of this chapter, it shall notify the permit holder in writing of the nature of the violation and the section of this chapter that it believes has been violated. Except in the case of an emergency, the permit holder shall have 30 business days to cure the violation. If the nature of the violation is such that it cannot be fully cured within such time period, the Borough may, in its reasonable judgment, extend the time period to cure. If the violation has not been cured within the time period allowed, it shall be subsequently punishable by a fine of up to $300 per day until the violation is cured.
The Borough, by granting any permit under this chapter, does not waive, lessen, impair or surrender the lawful police powers vested in the Borough under applicable federal, state and local laws pertaining to the regulation or use of the rights-of-way.
A permit holder shall have no recourse whatsoever against the Borough for any loss, cost, expense or damage arising out of the failure to grant a permit. By applying for a permit, the applicant acknowledges that it has not been induced to enter into a permit by any understanding or promise or other statement, whether verbal or written, by or on behalf of the Borough or by any other third person concerning any term or condition of a permit not expressed in this chapter.
During the term of the permit or at any time during the occupancy of the Borough's rights-of-way, the permit holder shall notify the Borough in writing of any additional occupancy or use by any person other than the original permit holder of any equipment, including the use of any conduit, of the permit holder in the rights-of-way at least 30 days prior to any such occupancy or use.
The provisions of this chapter 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.