This Ordinance shall govern the construction within the Municipality's
Rights-of-Way, unless otherwise described in another Ordinance of
Municipality or a Franchise, License, or Use Agreement.
a.
In
order to provide for the health, safety and well-being of its citizens,
as well as to ensure the structural integrity of its streets, the
Municipality strives to keep its Rights-of-Way in a state of good
repair and free from unnecessary encumbrances.
b.
The
Municipality holds the Rights-of-Way within its geographical boundaries
as an asset in trust for its citizens. The Municipality and other
public entities have invested millions of dollars in public funds
to build and maintain the Rights-of-Way.
c.
The
Municipality possesses the authority to manage and control its Rights-of-Way
and to enact reasonable regulations in furtherance thereof.
d.
The
proliferation of entities that have been licensed by the states and
the potential for additional entities having the need to occupy Rights-of-Way,
necessitates the modernization of the Municipality's regulations used
to control the placement, construction and maintenance of Facilities
owned by existing and potential Rights-of-Way users.
e.
This
Ordinance imposes reasonable regulations on the placement and maintenance
of Facilities currently within its Rights-of-Way or to be placed therein
at some future time.
f.
The
requirements embodied herein have been made as broad as possible to
serve as standards of quality and to maintain the necessary uniformity
in the utilization of the Rights-of-Way.
g.
The
Permit Fees of this Ordinance are adopted pursuant to the Municipality's
police power and other Applicable Ordinances. The purpose of Permit
Fees is to enable the Municipality to recover its costs of administration
and enforcement and not for the purpose of raising revenue.
Nothing in this Ordinance is intended to impair the legal obligation
of any contract, Franchise, License, Use Agreement, or other legal
authorization or easement previously granted by the Municipality or
other lawful authority.
Compliance with the Permitting Requirements of this Ordinance
shall not excuse any Person from complying with all other requirements
of law, including holding a valid Franchise, License, or Use Agreement
from the Municipality.
This Ordinance shall apply to all Rights-of-Way within the corporate
limits of the Municipality as such corporate limits exist or may exist
in the future.
The following definitions apply in this Ordinance. References
hereafter to "Sections" are, unless otherwise specified, references
to Sections in this Ordinance. Defined terms remain defined terms
whether or not capitalized.
This Ordinance, all generally applicable ordinances, and
State statutes, and rules and regulations, any amendments thereto
and any of the applicable federal and/or State laws that are new or
existing.
Any Person requesting permission to Obstruct or Construct
in a Rights-of-Way.
The process by which an Applicant submits a request for permission
to Obstruct or Construct in the Rights-of-Way.
To excavate, repair, rehabilitate, maintain, and install
sanitary sewers, water mains, fire hydrants, valves, meters, manholes,
service lines and connections, gas mains, telephone and electrical
conduit and their miscellaneous service lines and connections, video
and telecommunications Facilities cables, wires, lines, wave guides,
antennas, and other equipment or Facilities, pedestals, and service
cabinets, poles, guy wires, storm drains, manholes, inlets, catch
basins, irrigation systems, driveways, sidewalks, pavement extensions,
curbs, walks, steps, building canopies, balconies, overhead walkways,
and temporary detour pedestrian walkways on, above, or under any part
of the Rights-of-Way provided however, that Construct shall not mean
installation, repair, rehabilitation or maintenance of Facilities
that do not involve excavation of any portion of the Rights-of-Way.
A bond, cash, letter of credit or other applicable security
posted to ensure proper and complete Construction and/or Restoration
of a Permitted Facility pursuant to a Permit as may be required as
determined by the Municipal Manager or his/her designee.
The Municipality's compilation of provisions and requirements
that provide the technical specifications and details for the Construction
of Facilities in the Municipality's Rights-of-Way and as otherwise
included in the Municipality's ordinances.
A condition that poses a clear and immediate danger to life
or health, or of a significant loss of property or Utility service.
Any work in the surface or subsurface of the Rights-of-Way
including but not limited to opening the Rights-of-Way, installing,
servicing, repairing or modifying any Facilities in or under the surface
or subsurface, and restoring the surface and subsurface of the Rights-of-Way.
An Application made to Construct or Obstruct more of the
Rights-of-Way than allowed in, or to extend, a Permit that had already
been issued.
Any tangible thing located in any Rights-of-Way; but shall
not include boulevard plantings or gardens planted or maintained in
the Rights-of-Way between a Person's property and the street edge
of pavement.
The grant of authority from Municipality to use Rights-of-Way
for any purpose therein described.
When used in conjunction with Rights-of-Way, means over,
above, in, within, on or under a Rights-of-Way.
Trees, shrubs and other plantings of materials that are or
may grow to a height of 18 inches or more, and irrigation systems
(in unpaved areas), in the Rights-of-Way.
The State College Borough.
The direct and indirect costs borne by the Municipality for
the administration of this Ordinance.
A written warning issued by the Municipality Engineer for
a violation or possible violation of this Ordinance.
To place any tangible object in a Rights-of-Way so as to
hinder free and open passage over, under, or through that or any part
of the Rights-of-Way.
Money charged by the Municipality to cover the costs as provided
in this Ordinance.
The Permit which must be obtained before a Person may Construct
in, or Obstruct in a Rights-of-Way as required by this Ordinance.
Any Person to whom a Permit to Construct or Obstruct a Rights-of-Way
has been granted by the Municipality.
The process by which a Constructed or Obstructed Rights-of-Way
is restored as specified in this Ordinance.
The surface of and the space above and below any public street,
public road, public highway, public freeway, public lane, public way,
public alley, public sidewalk, public boulevard, public parkway, public
drive or any public utility easement or public rights-of-way now or
hereafter held by the Municipality which shall, within its proper
use and meaning, entitle Provider to the use thereof for the purpose
of installing, maintaining or transmitting over poles, wires, cables,
conductors, ducts, conduits, vaults, manholes, amplifiers, appliances,
attachments and other property as may be ordinarily necessary and
pertinent to Facilities.
Services provided by Utilities.
The paved pedestrian walkway between the edge of the road
and the street Rights-of-Way line.
The use of directional boring, horizontal drilling and microtunneling
and other techniques in the Construction of underground portions of
Facilities which result in the least amount of disruption and damage
to Rights-of-Way as possible.
All lines, cables, conduits, posts, tanks and any other Facilities
owned or operated by Persons other than the Municipality which are
located wholly or partially underneath Rights-of-Way.
Any water, sewer, gas, drainage, or culvert pipe and any
electric power, telecommunication, signal, communication, or cable
television conduit, fiber, wire, cable, or operator thereof.
The Borough Manager or his/her designee shall be the principal
Municipality official responsible for the administration of the Rights-of-Way,
Rights-of-Way Permits, and this Ordinance. The Municipality may adopt
and may amend from time to time, Construction Standards and other
rules reasonably required to carry out the purposes of this Ordinance.
Any requirement not specifically covered by this Ordinance or the
Construction Standards shall be determined by the Municipal Manager
or his/her designee.
Except as otherwise provided in this Ordinance, no Person may
Construct or Obstruct any Rights-of-Way without first having obtained
from the Municipality a Rights-of-Way Permit and, as may be required
by Applicable Ordinances, such Franchise, License, Use Agreement,
or other required municipal permits or approvals.
A Rights-of-Way Permit is a Permit which allows the holder to
Construct, Obstruct, or Landscape in that part of the Rights-of-Way
described in such Permit.
a.
A
Permit is valid only for the dates and the area(s) of Rights-of-Way
specified in the Permit. No Person may Construct in or Obstruct the
Rights-of-Way beyond the date or dates specified in the Permit unless
such Person:
(1)
Requests an extension to an existing Rights-of-Way Permit before
the expiration of the initial Permit; and
(2)
A new Permit or Permit extension is granted.
Permit extensions may be obtained upon good cause shown for
additional two one-month periods.
However, if no work is initiated within one month of obtaining
a Permit, the Permit is rendered invalid.
b.
When
the work must commence immediately because of an Emergency the Permittee
shall comply with the provisions in this Ordinance.
d.
Applicants
may be allowed, if determined by the Borough Manager or his/her designee,
to obtain in advance, an annual, quarterly, or semi-annual permit
for Minor Projects outside roadway limits and some Small Projects
that involve minimal Excavation. Permit fees shall be calculated as
an estimate of similar work conducted over the past 12 months.
Application for a Permit is made to Borough Manager or his/her
designee at least two weeks prior to the start of construction, unless
deemed an emergency.
a.
All
Permit Applications shall be obtained from the Public Works office
and include the requirements of this Ordinance, specifically including,
but not limited to the following:
(1)
Each Applicant's name, Pennsylvania's One-Call registration certificate
number, address, and e-mail address, if applicable, and telephone
and facsimile numbers.
(2)
The name, address, and e-mail address, if applicable, and telephone
and facsimile numbers of a local representative. The local representative
or designee shall be available at all times.
(3)
The name, address and contact information for contractor, if different
from Applicant.
(4)
Insurance.
(a)
Verifying that an insurance policy has been insured to the Applicant
by an insurance company licensed to do business in the State of Pennsylvania
or a form of self-insurance acceptable to the Municipality.
(b)
Verifying that the Applicant is insured as required by this
Ordinance or a Franchise, License, or Use Agreement.
(5)
The Municipality may require a copy of the actual insurance policies.
(6)
If the person is a corporation, a copy of the certificate of incorporation
as recorded and certified by the Secretary of State.
(7)
A copy of the Applicant's Use Agreement, Franchise, License, or other
legal authorization or order granting a certificate of authority from
the State of Pennsylvania Public Service Commission or other applicable
state or federal agency.
(8)
Plans, Specifications and Details for proposed installation, backfill
and restoration. Plans shall be at a scale of one foot — 20
feet and include all existing features and utilities that may be impacted
by the proposed project.
(9)
Surety in the form of a construction bond or certified cashier's
check in the amount of the estimated cost of restoration construction
to be held by the Municipality until completion of the work.
b.
In
the event Applicant furnished similar information to the Municipality
as may be required for a Franchise, License, or Use Agreement, such
information may not be duplicated but may be supplemented based on
review by the Borough Manager or his/her designee.
c.
The
Applicant shall keep all of the information listed above current at
all times by providing to the Municipality information as to changes
within 15 days following the date on which the Applicant has knowledge
of any change.
a.
If
the Borough Manager or his/her designee determines that the Applicant
has provided a complete Application and has satisfied the requirements
of this Ordinance, the Borough Manager or his/her designee shall issue
a Permit or issue notification and reason for denial within 10 working
days of the filing of the application.
b.
The
Borough Manager or his/her designee may impose reasonable conditions
upon the issuance of the Permit and the performance of the Applicant
there under in order to protect the public health, safety and welfare,
to insure the structural integrity of the Rights-of-Way, to protect
the property and safety of other users of the Rights-of-Way, and to
minimize the disruption and inconvenience to the traveling public,
including notification to property owners.
c.
The
signature of the Applicant on the Permit Application shall represent
an understanding of all of the terms and conditions contained in it
and that by issuance of the Permit, agrees and acknowledges all liability
for construction, restoration or maintenance of its Facilities within
the Rights-of-Way and will save, defend and hold the Municipality
harmless.
a.
Permit
Fees shall be established by resolution of Borough Council upon recommendation
of the Borough Manager or his/her designee. Said fees shall be in
an amount sufficient to recover the following costs:
b.
No
Permit shall be issued without payment of such fees unless the Borough
Manager or his/her designee authorizes payment to be made 30 days
following billing. All changes in fees shall be approved by Borough
Council.
c.
All
permit fees are non-refundable.
Applicants are encouraged to make joint Application for Permits
to Construct or Obstruct the Rights-of-Way at the same place and time.
Applicants who apply for Permits for the same or similar Obstruction
or Construction for the same Rights-of-Way location may share in the
payment of the Permit Fee. Applicants must agree among themselves
as to the designation of a facility owner and to the portion each
will pay and indicate the same on their applications.
The Municipality or its designee may grant a waiver to the requirements
of this Ordinance if a Permittee demonstrates with written evidence
that:
a.
The
exception will not create any threat to the public health, safety
or welfare.
b.
The
Permittee demonstrates that the increased economic burden and the
potential adverse impact on the Permittee's Construction schedule
resulting from the strict enforcement of the requirement actually
or effectively prohibits the ability of the Permittee to provide its
services in the Municipality.
c.
Should
any Person be aggrieved by the decision of the Municipality or its
designee, such Person may appeal as provided for in § 16-267
herein.
a.
Except
in the case of an Emergency, no Rights-of-Way Permit will be granted:
(1)
To any Person who has failed to comply with the requirements of this
Ordinance.
(2)
To any Person who is delinquent in paying a debt owed to the Municipality.
(3)
If, in the discretion of the Borough Manager or his/her designee,
the issuance of a Permit for the particular date and/or time would
cause a conflict or interfere with an exhibition, celebration, festival,
or any other event. The Borough Manager or his/her designee, in exercising
this discretion, shall be guided by the safety and convenience of
ordinary travel of the public over the Rights-of-Way, and by considerations
relating to the public health, safety and welfare.
b.
The
Borough Manager or his/her designee may deny a Permit in order to
protect the public health, safety and welfare, to prevent interference
with the safety and convenience of ordinary travel over the Rights-of-Way,
or when necessary to protect the Rights-of-Way and its users. The
Borough Manager or his/her designee may consider one or more of the
following factors:
(1)
The extent to which Rights-of-Way space where the Permit is sought
is available.
(2)
The competing demands for the particular space in the Rights-of-Way.
(3)
The availability of other locations in the Rights-of-Way or in other
Rights-of-Way for the Facilities of the particular company.
(4)
The applicability of Ordinances or other regulations of the Rights-of-Way
that affect location of Facilities in the Rights-of-Way.
(5)
The degree of compliance of the Applicant with the terms and conditions
of its franchise, this Ordinance, and other applicable ordinances
and regulations; the degree of disruption to surrounding neighborhoods
and businesses that will result from the use of that part of the Rights-of-Way.
(6)
The condition and age of the Rights-of-Way, and whether and when
it is scheduled for total or partial Construction; and the balancing
of the costs of disruption to the public and damage to the Rights-of-Way,
against the benefits to that part of the public served by the expansion
into additional parts of the Rights-of-Way.
c.
A
Permittee may appeal a decision of the Municipality or its designee,
as described in § 16-267 of this Ordinance.
a.
Permittees
hold Permits issued pursuant to this Ordinance as a Privilege and
not as a right.
b.
If
the Borough Manager or his/her designee determines that the Permittee
has violated a material term or condition of any statute, ordinance,
rule, regulation or any condition of the Permit, the Borough Manager
or his/her designee shall issue a Notice of Violation to the Permittee
to remedy such violation. The Notice of Violation shall provide requirements
for correction of violation, any applicable penalties for continued
violation, the requirements regarding continuance of work until violation
is resolved, and the process and procedures for enforcement that may
be applicable as required under the general ordinances of the Municipality.
A material violation by Permittee shall include, but shall not be
limited to, the following:
(1)
The violation of any material provision of the Permit.
(2)
An evasion or attempt to evade any material provision of the Rights-of-Way
Permit, or the perpetration or attempt to perpetrate any fraud or
deceit upon the Municipality or its citizens.
(3)
Any material misrepresentation of fact in the Application for a Permit.
(4)
The failure to maintain the required bonds and/or insurance.
(5)
The failure to complete the work in a timely manner.
(6)
The failure to correct a condition indicated on an order issued pursuant
to this Ordinance.
c.
Within
48 hours of receiving a Notice of Violation, Permittee shall contact
the Borough Manager or his/her designee with a plan, acceptable to
the Borough Manager or his/her designee, for its correction. Permittee's
failure to so contact the Borough Manager or his/her designee, or
the Permittee's failure to submit an acceptable plan, or Permittee's
failure to reasonably implement the approved plan, shall be cause
for the Municipality to recover costs, expenses or damages from the
Construction Bond or to deny further Rights-of-Way Construction or
to revoke a Permit.
A Rights-of-Way Applicant or user that: (1) has been denied
a permit; (2) has had a permit revoked; or (3) believes that the fees
imposed are invalid, has the right to have the denial, revocation,
or fee imposition reviewed, upon written request, by the Borough Manager
and if resolution is not obtained Applicant may take the appeal to
a court of competent jurisdiction.
All Construction or maintenance of Facilities shall be in accordance
with the requirements of a Franchise, License, or Use Agreement or
other lawful authority, and this Ordinance.
a.
A
Permittee shall not place Facilities above or below ground where the
same will interfere with any gas, electricity, telephone fixtures,
sanitary and storm sewers, water hydrants, traffic control system
and loops, or other Facilities or other utility use, and all such
poles, conduits or other fixtures, in or upon any street shall be
so placed as to comply with all requirements of the Municipality and
Applicable Ordinances.
b.
A
Permittee shall give notice to alert all businesses and residents
that may be affected by the proposed work prior to commencement of
such work, except for work that is not reasonably anticipated to result
in disruption or the loss of use of the property.
c.
All
construction and maintenance of Facilities by Permittee or its subcontractors
shall be performed in accordance with the Municipality's standards
and the requirements of this Ordinance. Permittee shall have no vested
right in any Facilities location, and such Facilities shall be relocated
or removed by Permittee at its own cost and expense (except as otherwise
may be provided herein or, in regard to cost, where reimbursement
is available under state or federal law), whenever the same restricts
or obstructs or interferes with the operation or location or any future
operation or location of said Rights-of-Way and places in accordance
with this Ordinance or a Use Agreement.
d.
Permittee
shall comply with all Pennsylvania One-Call laws.
e.
Permittee
shall be responsible for providing, installing and maintaining all
applicable work zone traffic control in accordance with the most current
PENNDOT publication.
a.
Notwithstanding
anything to the contrary in this Ordinance, a Permittee shall not
erect, for any reason, any pole on or along any Rights-of-Way without
the approval of the Municipality. Nothing herein shall be construed
to limit or eliminate any right, requirement or obligation a Permittee
may have to enter into a pole attachment agreement and/or agreement
for conduit use with the Municipality or a private utility for the
use of another's pole or conduit.
b.
Notwithstanding
anything contained in this Ordinance, to the contrary, and except
due to technological reasons or due to the size or shape of Facilities
that would result in unreasonable expense and therefore exempted as
determined by the Borough Manager or his/her designee, or as otherwise
described in a Franchise, License, or Use Agreement:
(1)
In those areas within the Municipality where primarily all Facilities
are currently placed underground, all Facilities shall remain or be
placed underground.
(2)
In areas where utility facilities are primarily above ground at the
time of a Permittee's installation, the Municipality may allow Permittee,
at Permittee's sole cost and expense, to install its Facilities above
ground, provided that at such time as the Municipality adopts an underground
plan and primarily all utility facilities or other Facilities are
placed underground, Permittee shall likewise place its Facilities
underground without cost to the Municipality. If as part of a plan
to underground above-ground Facilities public funding is available,
all Permittees shall be treated similarly unless such funding is made
available from a source other than the Municipality and is designated
for a specific use.
(3)
In no event shall Permittee be authorized to place above ground any
Facilities that have previously been underground without prior approval
from the Municipality.
Applicants are required to perform Construction and maintenance
of Facilities in a manner resulting in the least amount of damage
and disruption of the Rights-of-Way, unless otherwise approved by
the Borough Manager or his/her designee. Applicants may be required
to use Trenchless Technology for construction projects, within roadway
limits, in arterial and other high volume streets unless otherwise
approved by Borough Manager or his/her designee and such approval
shall not be unreasonably withheld. The Borough Manager or his/her
designee may require Trenchless Technology in other locations, where
extreme circumstances prevent or make open cut methods impractical.
Applicants may be required to use trenching, the open cut method or
Trenchless Technology for projects outside roadway limits.
a.
The
work to be done under the Permit, and the Restoration of the Rights-of-Way
as required herein, must be completed within the dates specified in
the Permit. In addition to its own work, the Permittee is responsible
for the restoration of the general area of the work, including all
disturbed sidewalk, concrete curb, landscaping, planting and improvement
materials and the permitted areas, including the paving and its foundation,
per the Construction Standards described in this Ordinance.
(1)
If the Permittee opens pavement having a bituminous concrete surface
and the wearing course is less than five years old, the Permittee
shall, in addition to the restoration conditions outlined in the permit
and in this section, overlay the pavement in accordance with the following
conditions:
(a)
When a longitudinal opening longer than 100 lineal feet has
been made in the pavement, the Permittee shall overlay the traffic
lane(s) in which the opening was made, for the entire length of street
that was opened, in accordance with the Municipality's Construction
Specifications.
(b)
When two or more transverse openings have been made within 100
lineal feet of pavement, the Permittee shall overlay traffic lanes
in which the openings were made, for the entire length of street between
the openings, in accordance with the Municipality's Construction Specifications.
(c)
When four or more emergency openings have been made by the same
Permittee within 100 lineal feet of pavement, the Permittee shall
overlay traffic lanes in which the openings were made, for the entire
length of street between openings, in accordance with the Municipality's
Construction Specifications.
(d)
If disturbed lanes adjacent to undisturbed lanes are overlaid,
the edge of the disturbed lane shall be saw cut or milled to a depth
of 1 1/2 inch or the depth of the existing wearing course, whichever
is less, for the length of the opening to ensure a smooth joint, with
proper elevation and cross-section. A full width overlay may be authorized
on various streets instead of saw cutting or milling the disturbed
lane.
(2)
Regardless of the age of the wearing course:
(a)
If more than 100 lineal feet of longitudinal or transverse openings,
or both, are made in the pavement, the Municipality may require the
Permittee to overlay traffic lanes in which the openings were made,
for the entire length of street that was opened, if the Municipality
determines that the ride-ability or structural integrity of the pavement
has been impaired by the openings.
(b)
If four or more openings are made by the same Permittee within
100 lineal feet of pavement, the Municipality may require the Permittee
to restore the entire disturbed pavement between openings by milling
and overlaying the entire disturbed pavement in accordance with the
Municipality's Construction Specifications.
(c)
Permittee shall submit the proposed skid resistance level (SRL)
of the overlay material.
(d)
If an opening in made in a bituminous concrete pavement within
three feet from the edge of pavement or other longitudinal joint or
opening, the surface restoration shall be extended to the edge of
pavement or other longitudinal joint or opening.
(e)
At each end of an overlay, the Permittee shall install a paving
notch, by milling to provide a minimum ten-foot transition.
(f)
The transition areas at each end of an overlay shall follow
the contour of the surrounding surface, unless otherwise directed
by the Borough Engineer or his/her designee.
(g)
When pavement markings on more than 100 lineal feet of street
are covered or destroyed by the permitted work, including overlays,
they shall be replaced in their former locations.
b.
By
restoring the Rights-of-Way, the Permittee guarantees its work for
24 months following its completion, said work to be guaranteed by
a Maintenance Bond. During this twenty-four-month period, the Permittee
shall, upon notification from the Borough Manager or his/her designee,
correct all Restoration work to the extent necessary using the method
required by the Borough Manager or his/her designee. Said work shall
be completed within the time specified by the Borough Manager or his/her
designee.
Once a permit has been issued, the Permittee shall provide a
minimum of 48 hours advance notification of the actual start of construction
to the Borough Manager or his/her designee to schedule inspection.
a.
Permittee
or its contractor shall be solely responsible for the safety or the
construction site and operations therein. The Municipality has the
right to inspect and give notice to the Permittee or its contractor
of any unsafe condition or operations. The Municipality does not assume
any liability for any unsafe conditions that it may become aware of
by inspection which will be the sole responsibility of Permittee.
b.
Permittee
shall make the work site available to the Borough Manager or his/her
designee and to all others as authorized by law for inspection at
all reasonable times during the execution and upon completion of the
work.
c.
At
the time of inspection, the Borough Manager or his/her designee may
order the immediate cessation of any work which poses a serious threat
to the life, health, safety or well-being of the public.
d.
The
Borough Manager or his/her designee may issue a Notice of Violation
to the Permittee for any work which does not conform to this Ordinance.
The Notice of Violation shall provide requirements for correction
of violation, any applicable penalties for continued violation, the
process and procedures and right of Permittee that may be applicable
as required.
e.
Once
construction is complete, the Permittee shall schedule a final inspection
by the Borough Manager or his/her designee for the purposes of determining
if the surety can be released.
Obtaining a Rights-of-Way Permit does not relieve Permittee
of its duty to obtain all other necessary Permits, Franchises, Licenses,
or Use Agreements, and authority and to pay all applicable fees.
a.
A
Permittee shall comply with all requirements of local, State and federal
laws, including a Franchise, License, or Use Agreement or other lawful
authorization duly adopted by the Municipality's elected officials,
as well as the Pennsylvania call excavation notice system.
b.
A
Permittee shall perform all work in conformance with all applicable
codes and established rules and regulations, and is responsible for
all work done in the Rights-of-Way pursuant to its Permit, regardless
of who performs the work.
c.
Except
in the case of an Emergency, and with the approval of the Borough
Manager or his/her designee, no Rights-of-Way Obstruction or excavation
may be performed when seasonally prohibited or when conditions are
unreasonable for such work.
d.
A
Permittee shall not so Obstruct a Rights-of-Way that the natural free
and clear passage of water through the gutters or other waterways
shall be interfered with.
e.
Private
vehicles not owned by or under contract to Permittee may not be parked
within or adjacent to a permit area.
Unless otherwise authorized by a Franchise, License, or Use
Agreement or Applicable Law, Permittee shall not place or cause to
be placed any sort of signs, advertisements, or other extraneous markings,
whether relating to the Permittee or any other Person or entity on
Rights-of-Way, except such necessary minimal markings as approved
by the Municipality as are reasonably necessary to identify the System
for service, repair, maintenance, or emergency purposes, or as may
be otherwise required to be affixed by Applicable Law or regulation.
Permittee shall comply with all applicable Municipality and
state laws, rules, regulations and ordinances and other Applicable
Law with respect to the removal, trimming and cutting of trees and
keeping its Facilities clear of trees in and along Rights-of-Way.
Except in emergency situations, in installing, maintaining, and removing
its Facilities, Permittee shall neither remove, cut, trim nor damage
any trees within the Rights-of-Way, alleys and public places of the
Municipality except with the prior consent of the Municipality, or,
where on private property, without the property owner's consent.
Within five days' notice from the Municipality, a Permittee
shall promptly, if it can safely to do so, remove all or any portion
of a tree which has fallen upon the aerial Facilities of the Permittee.
Failing therein, the Municipality may remove such fallen tree, or
portion thereof, at the Permittee's expense and obtain reimbursement
for all costs associated therewith within 30 days of invoicing. In
such event the Municipality shall not be liable to Permittees whose
Facilities are affected thereby and shall be indemnified and held
harmless in accordance with this Ordinance.
A Permittee may, or as may be determined by the Borough Manager
or his/her designee, be required, at its expense, to promptly protect,
support, temporarily disconnect, relocate in, or remove from, Rights-of-Way,
lands or places, any Facilities of Permittee whenever required by
the Municipality upon reasonable notice applicable to the conditions
warranting such disconnection and as then determined by Borough Manager
or his/her designee by reason of traffic conditions, public safety,
Rights-of-Way construction or any other reasonable public purpose.
Permittee, on the request of the Borough Manager or his/her
designee, or any Person holding a lawful permit issued by the Municipality,
or any permit issued by an appropriate state agency, shall temporarily
move its Facilities to permit the moving of large objects, vehicles,
buildings or other structures. Except where requested by the Municipality
or other governmental entity in connection with a public project,
the expense of such temporary moves shall be paid to Permittee by
the Person requesting the same and Permittee shall have the authority
to require such payment in advance. In no event shall the Municipality
pay such expense. Nothing herein shall be construed to abrogate the
provisions for moving Facilities contained in any pole attachment
agreement the Permittee has with another Person.
a.
Whenever
it is possible and reasonably practicable to joint trench or share
bores or cuts or joint share conduit, Permittee shall work with the
Municipality and other Permittees and licensees, so as to reduce,
as far as possible, the number of street cuts within the Municipality.
b.
If
required of other users of the Rights-of-Way, when Permittee installs
any new trench and/or conduit as part of its Facilities, the Permittee
may, at the request of the Municipality or its designee install, at
the expense of the Municipality, sufficient additional space and/or
conduit or other related Facilities to meet the Municipality's planned
public improvement and infrastructure needs. Permittee may make such
trench space and/or conduit available to the Municipality on the basis
of not more than the pro rata cost of that portion of the space in
a trench and/or conduit determined by the total labor and material
cost of all Facilities and Facilities at that location. The Municipality
shall have the option to lay its own conduit or place other public
improvements that do not cause significant cost, delay or redesign,
including without limitation, wiring for traffic signals, streetlights,
etc., in Permittee's open trenches during the initial construction
and during any future rebuilds or repairs. Permittee shall provide
written notice of the proposed construction to the Municipality and
the Municipality will then have 20 business days after receipt to
indicate in writing to the Permittee, unless Permittee requires a
shorter time for Municipality reply, as to its construction needs
and request for additional Facilities.
c.
Permittee
agrees to comply with all applicable Municipality requirements applicable
to Municipality trenching requirements, including but not limited
to how long a trench shall remain open and unfilled as well as any
requirements related to signs or other markings that shall be utilized
by Permittee to ensure safety to others. For purposes of this section,
"open" shall mean and include any degree of refilling and/or restoration
of the trench short of the final restoration of the pavement or the
ground to its original grade.
a.
Each
Permittee shall notify the Borough Manager or his/her designee (by
telephone or in person) of any event regarding its Facilities which
it considers to be an Emergency by the next business day. The Applicant
may proceed to take whatever actions are necessary in order to respond
to the Emergency. Within two business days after the occurrence of
the Emergency, the Applicant shall apply for the necessary Permits,
pay the fees associated therewith and fulfill the rest of the requirements
necessary to bring itself into compliance with this Ordinance for
the actions it took in response to the Emergency.
b.
In
the event that the Borough Manager or his/her designee becomes aware
of an Emergency regarding an Applicant's Facilities, the Borough Manager
or his/her designee shall attempt to contact the local representative
of each Applicant affected, if known, or potentially affected, by
the Emergency, who must comply with this Ordinance. In any event,
the Borough Manager or his/her designee may take whatever action deemed
necessary in order to respond to the Emergency.
c.
Except
in the case of an Emergency, any Person who Obstructs or Excavates
a Rights-of-Way without a Permit must subsequently obtain a Permit,
pay double the normal fee for said Permit, pay double all the other
fees required by the Code, is subject to the issuance of a Notice
of Violation, deposit with the Borough Manager or his/her designee
the fees necessary to correct any damage to the Rights-of-Way and
comply with all of the requirements of this Ordinance.
Permittee shall ensure that all of its vehicles and employees
are clearly identified to the general public as being associated with
Permittee while engaged in outside construction maintenance or service.
Said employee identification requirement may be satisfied by the carrying
of and presentment, upon request, of a company identification card.
Except as otherwise provided under a Municipality's ordinances
or other Applicable Law, in the event Permittee abandons construction,
either overhead or underground, once commenced, of the Facilities,
for more than six consecutive months prior to such time Facilities
are available for the intended use, the Municipality may reasonably
request Permittee to dismantle such Facilities located within Rights-of-Way
after reasonable notice and opportunity to be heard by Municipality's
elected officials. If Permittee fails to so dismantle based on a decision
of the Municipality's elected officials, the Municipality may dismantle
at Permittee's expense and Permittee shall reimburse the Municipality
within 30 days of receipt of an invoice therefor. In the event a Permittee
has been requested to relocate its Facilities located in the Rights-of-Way
due to the abandonment or discontinued use of a structure supporting
its Facilities, the Municipality may reasonably request Permittee
to relocate such Facilities to a new support structure. If Permittee
fails to so relocate, the Municipality may relocate at Permittee's
expense and Permittee shall reimburse the Municipality within 30 days
of receipt of an invoice therefor.
By reason of the grant of a Rights-of-Way Permit, the Municipality
does not assume any liability:
Including as required by a Franchise, License, or Use Agreement
or other lawful authorization by accepting a Permit, a Permittee is
required, to indemnify, and hold the Municipality whole and harmless
from all costs, liabilities, and claims for damages of any kind arising
out of the Construction, presence, installation, maintenance, repair
or operation of its Facilities, or out of any activity undertaken
in or near a Rights-of-Way, whether any act or omission complained
of is authorized, allowed, or prohibited by a Rights-of-Way Permit.
It further agrees that it will not bring, nor cause to be brought,
any action, suit or other proceeding claiming damages, or seeking
any other relief against the Municipality for any claim nor for any
award arising out of the presence, installation, maintenance or operation
of its Facilities, or any activity undertaken in or near a Rights-of-Way,
whether the act or omission complained of is authorized, allowed or
prohibited by a Permit. The foregoing does not indemnify the Municipality
for its own negligence. This section is not, as to third parties,
a waiver of any defense or immunity otherwise available to the Applicant
or to the Municipality; and the Applicant, in defending any action
on behalf of the Municipality, shall be entitled to assert in any
action every defense or immunity that the Municipality could assert
in its own behalf.
a.
The
Applicant shall be required to provide a Construction Bond or certified
cashier's check, except as any such Construction Bond as may be required
by a Franchise, License, or Use Agreement, to guarantee the proper
construction and completion of Rights-of-Way work and restoration.
Such Bond or certified cashier's check shall be made available to
the Borough Manager or his/her designee before any Permit is issued
and such Construction Bond must include a procedure for the Municipality
to follow to recover costs, expenses or damages in order to insure
enforcement of the terms and conditions of this Ordinance in compliance
with Section 16 or a Franchise, License, or Use Agreement or other
lawful authorization applicable to Rights-of-Way use. A Construction
Bond will not be required for small projects if no paved area or Rights-of-Way
is disturbed by the project.
b.
Municipality
departments performing installation of facilities, routine maintenance
and repair, and other agencies working in the Rights-of-Way that are
not involved in the installation, repair and maintenance of utilities,
are exempt from the requirements of paragraph A in accordance with
this section.
a.
Unless
otherwise described in a Franchise, License or Use Agreement or other
lawful authorization, a Permittee shall maintain the insurance as
required by this section, and furnish evidence of the same to the
Municipal Engineer with its application for a permit. At a minimum,
the Permittee shall be required to provide liability insurance with
a company licensed to do business in the State of Pennsylvania with
a rating by Best of not less than "A", insuring Permittee and the
Municipality with regard to all damages mentioned in this section,
in the minimum amounts of:
b.
The
amounts shown in paragraph A shall be increased by amendment to this
Ordinance.
A Permittee will obtain and maintain workers' compensation insurance
for all Permittee's employees, and in case any work is sublet, Permittee
will require any subcontractor similarly to provide workers' compensation
insurance for all subcontractor's employees, in compliance with state
laws, and to fully protect the Municipality from any and all claims
arising out of work-related occurrences. Permittee shall indemnify
the Municipality in accordance with Section 34 for any damage resulting
to it from failure of either Permittee or any subcontractor to obtain
and maintain such insurance. Permittee will provide the Municipality
with a certificate of insurance indicating workers' compensation insurance
prior to operations under a Franchise, License or Use Agreement or
other lawful authorization and the commencement of any construction,
system upgrade, reconstruction, or maintenance of the Facilities.
The certificate of insurance should confirm that the required endorsements
are in effect.
Any person, firm or corporation violating any of the provisions
of this Ordinance shall, upon conviction thereof, be fined not less
than $1,000 plus costs of restoration for each offense, to be collected
as fines or penalties are by law collectible.
The remedies provided in this Ordinance are not exclusive or
in lieu of other rights and remedies that the Municipality may have
at law or in equity. The Municipality is hereby authorized to seek
legal and equitable relief for actual or threatened injury to the
Rights-of-Way, including damages to the Rights-of-Way, whether caused
by a violation of any of the provisions of this Ordinance or other
provisions of this Ordinance,
If any section, subsection, sentence, clause, phrase, or portion
of this chapter is for any reason held invalid or unconstitutional
by any court or administrative agency of competent jurisdiction, such
portion shall be deemed a separate, distinct, and independent provision
and such holding shall not affect the validity of the remaining portions
thereof. If a regulatory body or a court of competent jurisdiction
should determine by a final, non-appealable order that any Permit
or right or any portions of this chapter is illegal or unenforceable,
then any such Permit or right granted or deemed to exist hereunder
shall be considered as a Permit with a mutual right in either party
to terminate without cause upon giving 60 days' written notice to
the other. The requirements and conditions of such a revocable Permit
shall be the same requirements and conditions as set forth in the
Permit or right respectively, except for conditions relating to the
term of the Permit and the right of termination. If a Permit or right
shall be considered a revocable Permit as provided herein, the Permittee
must acknowledge the authority of the Municipality's elected officials
to issue such revocable Permit and the power to revoke it.
The Municipality by the granting of a Rights-of-Way Permit,
does not surrender or to any extent lose, waive, impair, or lessen
the lawful powers and rights, which it has now or may be hereafter
vested in the Municipality under the Constitution and statutes of
the State of Pennsylvania to regulate the use of the Rights-of-Way
by the Permittee or to charge reasonable compensation for such use;
and the Permittee by its acceptance of a Rights-of-Way Permit must
agree that all lawful powers and rights, regulatory power, or police
power, or otherwise as are or the same may be from time to time vested
in or reserved to the Municipality, shall be in full force and effect
and subject to the exercise thereof by the Municipality at any time.
A Permittee or Applicant is deemed to acknowledge that its rights
are subject to the regulatory and police powers of the Municipality
to adopt and enforce general ordinances necessary to the safety and
welfare of the public and is deemed to agree to comply with all applicable
general laws and ordinances enacted by the Municipality pursuant to
such powers.
Any conflict between the provisions of a Rights-of-Way Permit
and any other present or future lawful exercise of the Municipality's
regulatory or police powers shall be resolved in favor of the latter.
This Ordinance shall not in any way be construed to contradict
or contravene any of the provisions of any Pennsylvania Laws.
