[Ord. 1960, 2/7/2011]
a.
Purpose. This Ordinance is being adopted pursuant to the Borough's police power authority to manage the Rights-of-Way in a safe and efficient manner that balances the competing needs of Persons seeking to utilize the Rights-of-Way to operate Communications Systems, and other users of the Rights-of-Way including the general public. Consistent with Section 903 of the Federal Communications Act of 1934, as amended (47 U.S.C. § 253), this Ordinance seeks to establish competitively neutral and non-discriminatory conditions of access and use for all Communications Systems utilizing the Rights-of-Way, including to the extent allowed under Applicable Law the payment of compensation for the use of the Rights-of-Way.
b.
Application
of Ordinance to all Communication Systems. This Ordinance shall apply
to all Communications Systems located within the Rights-of-Way, except
to the extent that specific provisions of this Ordinance may not be
applicable based on Applicable Law, including limitations to local
authority based on PUC requirements. Any Person claiming an exemption
from specific provisions of this Ordinance shall provide the Borough
with a detailed explanation as to the basis of the claimed exemption
including Applicable Laws and or authorizations upon which it is relying.
Within 60 days of adoption, the Borough shall provide a copy of this
Ordinance to all Persons with existing Communications Systems within
the Rights-of-Way.
c.
Use
Agreement Required. No Person shall construct, operate or continue
to operate a Communications System which occupies the Rights-of-Way
within the Borough without having been issued a Use Agreement(s) or
can otherwise demonstrate to the satisfaction of the Borough that
such Person has a valid prior authorization to occupy the Rights-of-Way
under Applicable Law. No Use Agreement shall be required by a Person
with a franchise from Borough for a Cable System.
[Ord. 1960, 2/7/2011]
a.
APPLICABLE LAW
APPLICANT or APPLICANTS
APPLICATION
BOROUGH
BOROUGH MANAGER
BOROUGH SUPPORT STRUCTURE RENTAL AGREEMENT
CABLE SYSTEM
COMMUNICATIONS FACILITIES or FACILITIES
COMMUNICATIONS SERVICES
COMMUNICATIONS SYSTEM
CONFIDENTIAL INFORMATION
CONSTRUCT or CONSTRUCTION
FEDERAL COMMUNICATIONS COMMISSION or FCC
GRANTEE
GROSS REVENUES
LINEAR FEET or LINEAR FOOT
PERSON
PUBLIC BUILDING
RENEWAL
RIGHTS-OF-WAY
ROW ORDINANCE
SERVICES
SMALL WIRELESS COMMUNICATIONS FACILITY (SMALL WCF)
(1)
(2)
(3)
(4)
(5)
(6)
SUPPORT STRUCTURE
TELECOMMUNICATIONS
TELECOMMUNICATIONS SERVICE
USE AGREEMENT
WIRELESS COMMUNICATIONS FACILITY (WCF)
WIRELESS COMMUNICATIONS SERVICES
WIRELINE COMMUNICATIONS SERVICES
WIRELINE USE FEE or WIRELESS USE FEE
Definitions.
The following words, terms and phrases, when used in this Ordinance,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning or unless otherwise
more specifically defined in another Section of this Ordinance or
a Use Agreement:
Any or all federal, state or municipal statutes, ordinances,
rules, regulations, standards, and other laws, that are now existing
or hereafter adopted or amended from time to time, which apply to
a Grantee, its Facilities, operations, Services, or System.
A Person who files an Application with the Borough pursuant
to this Ordinance.
The process by which an Applicant submits a request and indicates
a desire to be granted a Use Agreement to utilize the Rights-of-Way
of all, or a part, of the Borough. An Application includes all written
documentation, statements and representations, in whatever form, made
by an Applicant to the Borough concerning: the construction of Facilities
in the Rights-of-Way; the area proposed to be served within the Borough
by an Applicant; the portion of the Rights-of-Way proposed to be used
by an Applicant; and any other matter pertaining to proposed Facilities,
including a description of its Communications System and service intended
to be made available to subscribers or others and schedule of construction
and availability of Services as may be required by the to determine
whether or not an Applicant meets the terms and conditions established
by this Ordinance.
The Municipality of State College, Pennsylvania and where
necessary for the purposes of the administration and enforcement of
this Ordinance or a Use Agreement shall include the Borough's delegated
authorities or representatives authorized to perform as contemplated.
The Borough Manager for the Borough, his designee, or such
other or additional individuals that the Borough Council may designate
to perform all or any of the duties or responsibilities of that position.
An authorization to an Applicant to install its Wireless
Communications Facilities on a Borough-owned Support Structure in
the Rights-of-Way.
A system as defined in accordance with Cable System Regulatory
Ordinance 1906.
Wires, cables, fibers, equipment facilities, Wireless Communications
Facilities and other component parts utilized to provide Wireline
Communications Services or Wireless Communications Services, but does
not include a franchised Cable System.
Wireline Communications Services and Wireless Communications
Services; other than services made available from a Cable System granted
a franchise by Borough pursuant to Cable System Regulatory Ordinance
1906 available to subscribers through a Communications System that
enable the provision of voice, video and data services.
Any Communications Facilities used to provide Communications
Services and installed in or connected with the Rights-of-Way within
the corporate limits of the Borough, as now or in the future may exist.
Any written, non-verbal, information or communication for
which there is sound legal basis to assert that such information or
communication is confidential or proprietary in nature and which has
been clearly and conspicuously marked as such by the party asserting
its proprietary or confidential status. The consideration flowing
to either party under a Use Agreement is not considered to be confidential
information.
The act of excavating for, repairing, rehabilitating, maintaining,
installing, or removing communications facilities.
The Federal Communications Commission of the United States
Government.
A Person who has obtained a Use Agreement in accordance with
this Ordinance.
Any revenue received by a provider or a provider's affiliates,
from its provision of telecommunications to customers within the Borough
and not exempted in whole or in part by reason of applicable law that
may be considered as a source of revenue subject to a gross revenue
fee payment that may be charged by a local unit of government for
the occupancy of its rights-of-way.
The length in feet of cable, wire, fiber, conduit, or other
linear facilities physically connected, wrapped, or lashed as a single
cable, conduit, or bundle of cables or conduit.
Any corporation, partnership, proprietorship, individual,
organization, governmental entity or any natural person.
Any building or part thereof owned or leased or for the greater
part occupied by the Borough or other governmental unit for government
administrative purposes, but shall not include buildings owned by
the Borough and leased to third parties or buildings such as storage
facilities at which government employees are not regularly stationed.
A new Use Agreement granted pursuant to this Ordinance to
a provider having a prior existing authorization from the Borough.
The surface of and the space above and below any public street,
public road, public highway, public freeway, public lane, public path,
public way, public alley, public court, public sidewalk, public boulevard,
public parkway, public drive or any public easement or Rights-of-Way
now or hereafter held by the Borough which shall, within its proper
use and meaning, entitle Grantee to the use thereof for the purpose
of installing 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
a Cable System.
Any of the services contemplated by this Ordinance to be
made available by a Grantee.
A wireless communications facility that meets the following
criteria:
[Added by Ord. No. 2162, 6/21/2021; amended by Ord. No.
2168, 11/8/2021]
The structure on which antenna facilities are mounted:
Each antenna associated with the deployment (excluding the associated
equipment) is no more than three cubic feet in volume; and
All antenna equipment associated with the facility (excluding
antennas) are cumulatively no more than 28 cubic feet in volume; and
The facilities do not require antenna structure registration
under 47 CFR Part 17; and
The facilities are not located on tribal lands, as defined under
36 CFR 800.16(x); and
The facilities do not result in human exposure to radio frequency
radiation in excess of the applicable safety standards specified in
47 CFR 1.1307(b).
A structure designed and constructed and is capable of supporting
an antenna array or micro facility and may include a utility pole
or a monopole.
The transmission, between or among points specified by the
user, of information of the user's choosing, without change in the
form or content of the information as sent and received.
The offering of Telecommunications for a fee directly to
the public, or to such classes of users as to be effectively available
directly to the public.
A grant or authorization from the Borough to construct, operate
and maintain Facilities in the Rights-of-Way to provide voice, video,
or data service, wired or wireless relating to any of the Systems,
technologies or Services as defined in this section of this Ordinance
or other Sections of this Ordinance, to provide Services to subscribers
in accordance with the requirements in such Use Agreement as approved
by the Borough and this Ordinance.
An antenna facility or a wireless support structure that
is used for the provision of wireless service, whether such service
is provided on a stand-alone basis or commingled with other wireless
communications services.
[Amended by Ord. No. 2162, 6/21/2021; Ord. No. 2168, 11/8/2021]
Communications Services made available to subscribers through
Wireless Communications Facilities including any FCC licensed or unlicensed
radio communications services, whether used for transmission or reception
of voice, video or data, including, wireless fidelity ("WiFi") and
personal wireless services as defined by the Telecommunications Act
of 1996. The term does not include broadcast radio or television services.
Communications Services made available through wire or fiber
Facilities.
The compensation payable to the Borough for use of Rights-of-Way.
[Ord. 1960, 2/7/2011]
a.
Restrictions
on Location. Communications Facilities shall be installed in Rights-of-Way
subject to the requirements of this Ordinance and the ROW Ordinance.
Facilities shall not be installed in any rear alley or any utility
easement adjacent to or along any rear or side lot line, or portion
thereof; provided, however, the Borough may allow Facilities in such
areas in the Use Agreement or at the time of site approval based on
a finding that it would be less intrusive and aesthetically more acceptable
to do so. The term "Rights-of-Way" shall not be construed to mean
a utility easement or Rights-of-Way not dedicated to or owned by the
Borough but instead is held by a third party, including without limitation
another provider (hereinafter referred to collectively as "private
easements"). All private easements shall be subject to applicable
requirements of the Borough's zoning code.
b.
Requirements
Applicable to Location. All applicable requirements of this Ordinance
and this section and a Use Agreement shall be applicable to location
and placement of Communications Facilities in the Rights-of-Way, and
in accordance with the Borough's ROW Ordinance.
c.
Application
of this Ordinance. The placement of covered Communications Facilities
in Rights-of-Way shall be governed by this Ordinance. The placement
of Facilities outside of the Rights-of-Way shall be governed by the
requirements of the Borough's zoning code, where applicable to such
Facilities. This Ordinance shall apply, to the extent permitted by
applicable federal or State law, to all Borough authorizations for
Rights-of-Way Use granted or renewed after passage and adoption of
this Ordinance, and to all existing uses of the Rights-of-Way authorized
prior to the passage and adoption of this Ordinance to the extent
not inconsistent with existing agreements, except such Communications
Facilities that have authorization to access the Borough's Rights-of-Way,
pursuant to written documentation to the Borough of such authorization,
pursuant to the applicable provisions of Pennsylvania law, including
15 Pa.C.S.A. § 1511(e). Notwithstanding this exemption,
the placement of Communications Facilities in the Rights-of-Way is
subject to the reasonable management control, and permit requirements
as contained in the Borough's ROW Ordinance.
d.
Public
Buildings. This section is not meant to regulate or include the use
of public buildings, public parks, public sports facilities, public
spaces, public structures or other such public properties that are
not in or considered to be Rights-of-Way for the installation of Wireless
Communications Facilities. For the use of such property a separate
lease or license shall be required from the Borough and shall be governed
by the terms of such lease or license.
e.
Applicable
Ordinances. Grantee shall be subject to all applicable Ordinances
of the Borough, including, but not limited to, the requirement of
permits, payment of permit fees, and construction standards for use
of the Rights-of-Way pursuant to the ROW Ordinance and the Borough's
zoning code. Grantee acknowledges that the Borough is in the process
of updating its ROW Ordinance due to changes in law and technology,
and to the extent that such updated Ordinances do not materially conflict
with this Ordinance and its Rights-of-Way Use Agreement, the Grantee
consents to the applicability of such updated Ordinances.
f.
Wireless
Communications Facilities. Only wireless communications facilities
meeting the definition of a "small wireless communications facility,"
as defined herein, shall be permitted in the rights-of-way. Such small
wireless communications facilities shall comply with all applicable
requirements of this Part D.
[Added by Ord. No. 2162, 6/21/2021; amended by Ord. No.
2168, 11/8/2021]
[Ord. 1960, 2/7/2011; amended by Ord. No. 2162, 6/21/2021; Ord. No. 2168, 11/8/2021]
a.
Application
for Use Agreement. An Application for a Use Agreement from the Borough
shall, at a minimum, contain the following, subject to additional
information needed by the Borough, to understand the Application:
(1)
The Applicant's name. If, however, the Applicant is not also the
proposed Grantee, all information shall be furnished for both.
(2)
The names of the Applicant's officers and directors.
(3)
The business address of the Applicant.
(4)
The name and contact information of a designated contact for the
Applicant.
(5)
A description of the Communications System that the Applicant proposes
to construct and areas to be served by it.
(6)
The term of the Use Agreement proposed by the Applicant.
(7)
Whether the Applicant holds an existing authorization from the Borough
or other legal authority to access the public Rights-of-Way in the
Borough. (Explain)
(8)
Whether the Applicant will have customers (wholesale or retail) within
the Borough.
(9)
Written statement that this Ordinance has been reviewed by Applicant;
and, unless otherwise stated by Applicant that a term or condition
in this Ordinance cannot be complied with by it, this Ordinance shall
be deemed agreed to. If a term or condition cannot be complied with,
Applicant will include a written description of reason(s) for noncompliance
and the legal basis for such noncompliance with proposed alternatives
for consideration by the Borough.
(10)
Any additional information required by applicable state laws or Borough's
Ordinances.
b.
Consideration
of Application. Unless a shorter time frame is required by Applicable
Law, the Applicant may be evaluated according to the information included
in an Application as required by § 16-304a above, and acted
on by Borough within 90 days for Applicants with existing authority
to access Rights-of-Way and 180 days for Applicants that do not have
authority to access Rights-of-Way. The times start on the date an
Applicant files an Application or other writing including certain
minimum information which is set forth in § 16-304a of this
Ordinance and deemed complete by the Borough. The Borough may reasonably
suspend said time periods for action by the Borough after giving written
notice to an Applicant that the Application is incomplete and stating
therein the reasons for incompleteness. If the ninety/180-day time
elapses without action by the Borough, the Applicant is automatically
granted an interim Use Agreement based on the Application submitted.
The Borough may reasonably extend the said time periods for action
by it on an Application after giving written notice with specificity
to an Applicant if additional information is needed and of the extension
of time for review required.
c.
Confidential
Information. To the extent allowed by Applicable Law, or proprietary
information, will be confidential, but the Borough has the right to
disclose to governmental agencies having requisite governmental or
judicial authority provided that the Borough has given the Grantee
prior written notice of impending disclosure and the Grantee have
a reasonable opportunity to seek confidential status or protective
order or other such appropriate remedy.
d.
Completed
Application. A completed Application along with an Application Processing
and Review Fee shall be submitted to the Borough. The Application
Processing and Review Fee shall be set by Resolution of Borough Council
and may be amended from time to time. An Applicant will be assessed
an additional Application Processing and Review Fee at the end of
the review process should the Borough's actual costs of reviewing
the application exceed the Application Processing and Review Fee.
This Application Processing and Review Fee will be equal to 100% of
Borough's costs (including administration overhead, legal, consulting,
etc.) for the review and processing of the Application and granting
a Use Agreement. Upon approval of an Application and written acceptance
of the Borough's authorization by an Applicant, the Application Processing
and Review Fee shall be credited against the Applicant's annual Rights-of-Way
compensation.
[Ord. 1960, 2/7/2011]
a.
Use
Agreement Term. The Use Agreement term shall be effective as of the
Effective Date of the Use Agreement and shall extend for a term of
up to 10 years commencing on the installation date, unless it is earlier
terminated by either party in accordance with the provisions herein.
Not later than six months prior to the end of the term of an agreement
granted pursuant to this Ordinance, a Licensee(s) will notify the
Borough of its desire to have its license renewed. Upon receipt, the
Borough will evaluate the past performance of the Licensee, including
compliance, terms and conditions requirements of its agreement as
well as this Ordinance and schedule a public hearing to consider the
renewal request. Such review by the Borough shall be initiated within
60 days after receipt of the request for renewal and unless otherwise
needed to complete the review, the Borough shall finalize or act upon
the renewal request prior to the end of the term of Licensee's existing
license.
[Ord. 1960, 2/7/2011]
a.
Apply
Only to Location. Any Use Agreement issued for a Communications System
in accordance herewith shall apply only to the location or locations
stated on the Use Agreement, as it may be amended from time to time.
b.
No
Promise of Issuance. Nothing in this Ordinance shall be construed
as a representation, promise or guarantee by the Borough that any
permit or other authorization required under any Borough law for the
construction or installation of a Communications System shall be issued.
[Ord. 1960, 2/7/2011]
a.
Permit
for Construction. Grantees shall apply for a permit, based on the
Borough ROW Ordinance, for all work and each job within the Rights-of-Way,
and shall comply with all terms and conditions of any such permit.
Grantee shall furnish detailed plans of the work and other such information
as required by this Ordinance, a Use Agreement, and the ROW Ordinance,
and shall pay all required permit and inspection fees prior to issuance
of a permit in accordance with the rates in effect at the time of
payment. Improvements shall be constructed and installed in accordance
with the ROW Ordinance and Applicable Law.
b.
No
Extension or Expansion of Facilities. Grantees shall not expand or
extend their Facilities in the Rights-of-Way beyond the Route diagram
furnished to the Borough with the Application made part of a Use Agreement
without approval from the Borough, which shall not be unreasonably
withheld. Upon approval, the Use Agreement shall be amended to reflect
the location of the additional Facilities. In addition to any conditions
which may be included in a Use Agreement in conformance with this
Ordinance, the Use Agreement will be conditioned by the Borough to
describe the areas of Borough where the Communications System will
be installed.
c.
Least
Intrusive Design. The Borough may reasonably dictate the method of
construction within the Rights-of-Way and compliance with its ROW
Ordinance, and of mounting or attachment of Facilities to Support
Structures, the scale and aesthetics of such Facilities including,
without limitation, architecture, camouflaging and paint color, so
long as such requirements do not impermissibly interfere technically
with the Facilities or other Facilities installed on the Support Structure,
or significantly increase the costs of the Communications System deployment.
d.
Restoration
of Rights-of-Way. After the removal, relocation, or construction of
Facilities, Grantees shall, at their cost, repair, and return the
Rights-of-Way to the same or similar condition existing before such
removal, relocation, or construction. Grantees shall be responsible
for damage to the Borough's street pavements, existing utilities,
curbs, gutters, and sidewalks due to Grantees installation, maintenance,
repair, or removal of its Facilities in Rights-of-Way, and shall repair,
replace, and restore in kind, the said damaged property at its sole
expense. If Grantees fails to restore Rights-of-Way after twenty-day
notice from the Borough, the Borough may repair such portions of Rights-of-Way
that may have been disturbed by Grantees and collect the costs so
incurred from Grantees.
e.
Preservation
of Trees. In placing or maintaining its Facilities, upon and along
the Rights-of-Way, Grantees shall not injure, or in any manner, cut
or trim the trees, branches of trees along and in such Rights-of-Way
without the previous permission of the Borough or its designee. All
such trimmings shall be performed in a safe and orderly manner and,
to the extent practicable for the proper maintenance and use of Grantees
lines or other Facilities. Grantees shall be solely responsible for
obtaining any required consents from private parties, other utilities,
State or County agencies to the extent that it's trimming activities
may require consent from private parties, other utilities, or State
or County agencies.
f.
Facilities
Map. Grantees shall maintain an accurate map showing the location
of its Facilities. As-built drawings of any new construction of Facilities
shall be furnished to the Borough within 60 days of completion of
such construction as requested. Said map shall be provided in a format
mutually agreed upon by the parties, which may include an acceptable
GIS format.
g.
Surety
Bond.
(1)
Upon commencement of construction of the Facilities, Grantees shall
deposit with the Borough a surety bond or irrevocable letter of credit
naming the Borough as an obligee in the amount of $50,000, or such
other amount as may be required by the ROW Ordinance or as described
in a Use Agreement.
(2)
Such surety bond shall be for the faithful performance by Grantee
of all the provisions of this Ordinance, the Use Agreement and compliance
with all orders, permits and directions of the Borough and the payment
by a Grantee of any claim, liens, costs, expenses and taxes due the
Borough which arise by reason of the construction, operation or maintenance
of its Facilities.
(3)
Provision shall be made to permit the Borough to withdraw funds from
the surety bond. Grantee shall not use the surety bond for other purposes
and shall not assign, pledge or otherwise use this surety bond as
security for any purpose. The Borough reserves the right to increase
the required amount of the surety bond to match changes in the Consumer
Price Index for All Items and All Urban Consumers.
(4)
If a Grantee fails to pay to the Borough any amounts due and unpaid
to Borough; or fails to pay to the Borough any liquidated damages,
costs or expenses which the Borough shall be compelled to pay by reason
of any act or default of a Grantee in connection with this Ordinance
and a Use Agreement, the Borough may then withdraw such funds from
the surety bond. Payments are not use or rental fees as required in
§ 16-311, or as otherwise described in a Use Agreement.
(5)
The Borough may draw against the surety bond, up to its full face
amount, for any loss or damage to the Rights-of-Way utilized by Grantees
during construction, operation and maintenance of the Facilities to
the extent the Borough previously has not been otherwise compensated
through a withdrawal from the surety bond or by Grantees.
h.
Small
Wireless Communications Facilities. The following regulations shall
apply to small wireless communications facilities:
[Added by Ord. No. 2162, 6/21/2021; amended by Ord. No.
2168, 11/8/2021]
(1)
Location and Development Standards.
(a)
Small WCFs in the public ROW requiring the installation of a
new wireless support structure shall not be located in front of any
building entrance or exit.
(b)
All small WCFs shall comply with the applicable requirements
of the Americans with Disabilities Act and all Borough Code requirements
applicable to streets and sidewalks.
(2)
Nonconforming Wireless Support Structures. Small WCFs shall be permitted
to co-locate upon nonconforming telecommunications towers and other
nonconforming structures. Co-location of WCFs upon existing telecommunications
towers is encouraged even if the telecommunications tower is nonconforming
as to use within a zoning district.
(3)
Standard of Care. Any small WCF shall be designed, constructed, operated,
maintained, repaired, modified, and removed in strict compliance with
all current applicable technical, safety and safety-related codes,
including but not limited to the most recent editions of the American
National Standards Institute (ANSI) Code, National Electrical Safety
Code, National Electrical Code, or to the industry standard applicable
to the structure. Any WCF shall at all times be kept and maintained
in good condition, order and repair by qualified maintenance and construction
personnel, so that the same shall not endanger the life of any person
or any property in the Borough.
(4)
Historic Buildings. No small WCF may be located within 100 feet of
any property, or on a building or structure that is listed on either
the National or Pennsylvania Register of Historic Places, or eligible
to be so listed, located within an historic district, or is included
in the official historic structures list maintained by the Borough.
(5)
Wind and Ice. All small WCFs shall be designed to withstand the effects
of wind gusts and ice to the standard designed by the American National
Standards Institute as prepared by the Engineering Departments of
the Electronics Industry Association and Telecommunications Industry
Association (ANSI/TIA-222, as amended), or to the industry standard
applicable to the structure.
(6)
Aviation Safety. Small WCFs shall comply with all federal and state
laws and regulations concerning aviation safety.
(7)
Public Safety Communications. Small WCFs shall not interfere with
public safety communications or the reception of broadband, television,
radio, or other communication services enjoyed by occupants of nearby
properties.
(8)
Radio Frequency Emissions. A small WCF shall not, by itself or in
conjunction with other WCFs, generate radio frequency emissions in
excess of the standards and regulations of the FCC, including, but
not limited to, the FCC Office of Engineering Technology Bulletin
65, entitled "Evaluating Compliance with FCC Guidelines for Human
Exposure to Radio Frequency Electromagnetic Fields," as amended.
(9)
Time, Place and Manner. The Borough shall determine the time, place
and manner of construction, maintenance, repair and/or removal of
all small WCFs in the ROW based on public safety, traffic management,
physical burden on the ROW, and related considerations.
(10)
Accessory Equipment. Small WCFs and accessory equipment shall be
located so as not to cause any physical or visual obstruction to pedestrian
or vehicular traffic, create safety hazards to pedestrians and/or
motorists, or to otherwise inconvenience public use of the ROW as
determined by the Borough.
(11)
Graffiti. Any graffiti on the wireless support structure or on any
accessory equipment shall be removed at the sole expense of the owner
within 30 days of notification by the Borough.
(12)
Design Standards. All small WCFs in the Borough shall comply with
the requirements of the Borough "Small Wireless Communications Facility
Design Manual." A copy of such shall be kept on file at the Borough
office.
(13)
Timing of Approval.
(a)
Within 10 calendar days of the date that an application for
a small WCF is filed with the Borough, the Borough shall notify the
WCF applicant in writing of any information that may be required to
complete such application.
(b)
Within 60 days of receipt of an application for co-location
of a small WCF on a preexisting wireless support structure, and subject
to applicable tolling procedures, the Borough shall make a final decision
on whether to approve the application and shall notify the WCF applicant
in writing of such decision.
(c)
Within 90 days of receipt of an application for a small WCF
requiring the installation of a new wireless support structure, and
subject to applicable tolling procedures, the Borough shall make a
final decision on whether to approve the application and shall notify
the WCF applicant in writing of such decision.
(14)
Relocation or Removal of Facilities. Within 90 days following written
notice from the Borough, or such longer period as the Borough determines
is reasonably necessary or such shorter period in the case of an emergency,
an owner of a small WCF in the ROW shall, at its own expense, temporarily
or permanently remove, relocate, change or alter the position of any
WCF when the Borough, consistent with its police powers and applicable
Public Utility Commission regulations, shall determine that such removal,
relocation, change or alteration is reasonably necessary under the
following circumstances:
(a)
The construction, repair, maintenance or installation of any
Borough or other public improvement in the right-of-way;
(b)
The operations of the Borough or other governmental entity in
the right-of-way;
(c)
Vacation of a street or road or the release of a utility easement;
or
(d)
An emergency as determined by the Borough.
[Ord. 1960, 2/7/2011]
a.
Discontinuance
of Operation of a Communications System and Facilities. Subject to
applicable provisions of the ROW Ordinance, in the event that the
use of Facilities is discontinued by the Grantee, or in the event
a Grantee files notice to Borough, the PUC or the FCC of its intent
to cease operating the Facilities, the Grantee shall provide written
notice to the Borough of its intent to discontinue its Rights-of-Way
use and termination of its Use Agreement and the date when the use
shall be discontinued. If such Communications System and Facilities
are not removed within 90 days of discontinuance or such greater time
as may be allowed by the Franchise Manager, the Borough may remove
it at the Grantee's expense and receive reimbursement from Grantee
and applicable bonds or other security filed with Borough within 30
days of invoicing.
[Ord. 1960, 2/7/2011]
a.
Technical
Standards. All technical standards governing construction, reconstruction,
installation, operation, testing, use, maintenance and dismantling
of a Communications System shall be in accordance with the ROW Ordinance
and all applicable FCC and other federal, State, and local laws and
regulations.
[Ord. 1960, 2/7/2011]
a.
Requirement
for Borough-owned Support Structures Rental Agreement. The grant of
authority to occupy the public Rights-of-Way does not convey the right
to make attachments on Support Structures located within the Rights-of-Way
absent authorization from the Support Structure Owner. Every Grantee
who constructs, installs or maintains Facilities in the Rights-of-Way
must obtain an attachment agreement with the owner, including the
Borough, of the Support Structure.
b.
No
Title. A Use Agreement and Rental Agreement to attach Facilities to
a Borough-owned Support Structure shall not convey title, equitable
or legal, in the Rights-of-Way or Borough-owned Support Structure.
A Rental Agreement grants the right to occupy a Borough-owned Support
Structure in the Rights-of-Way for the construction and installation
of Facilities required as part of a Grantee's Communications System
and may also grant the right to erect a new Support Structure as authorized
by a Use Agreement and in accordance with this Ordinance.
c.
Denial
of Rental Agreement. In addition to any other reasons for denial of
a Use Agreement or Rental Agreement as set forth in this Ordinance,
the Borough shall refuse to issue a Use Agreement for construction
of a System or a Rental Agreement if the proposed location of the
Facilities interferes with the use of the Borough-owned Support Structure
if it is not technically or structurally feasible, as determined by
the Borough; or is otherwise contrary to public safety. The denial
of a Use Agreement or Rental Agreement shall be final, subject to
appeal to the Borough Council.
[Ord. 1960, 2/7/2011]
a.
Compensation
for Use Agreement. It shall be a term and condition of any Use Agreement
issued in accordance herewith that as consideration for the right
of a Grantee to occupy and use the Rights-of-Way and the Borough's
permission thereby to occupy and use the Rights-of-Way that the Grantee
shall pay each year to the Borough the following compensation:
b.
Communications
System - Wired Use Fee.
(1)
Any Communications System that serves subscribers within the Borough
shall pay annually as and for a Wired Use Fee 5% of its annual total
local Gross Revenues derived from operation of the Communications
System.
c.
Communications
System - Wireless Use Fee. For each Small Wireless Communications
Facility installed in the Rights-of-Way, the Grantee shall pay an
annual Wireless Use Fee. The Wireless Use Fee shall be set by Resolution
of Borough Council and may be amended from time to time.
[Amended by Ord. No. 2162, 6/21/2021; Ord. No. 2168, 11/8/2021]
d.
Combined
Wireline and Wireless System. For a Communications System using combined
Wireline and Wireless Communications Facilities, a Use Fee shall be
the higher of the above § 16-311b and c amount as calculated
annually by the Borough to the extent permitted under state and federal
law.
[Amended by Ord. No. 2162, 6/21/2021; Ord. No. 2168, 11/8/2021]
e.
Rental
Agreement Fee.
[Amended by Ord. No. 2162, 6/21/2021; Ord. No. 2168, 11/8/2021]
(1)
For Wireless Communications Facilities that do not meet the definition
of a Small Wireless Communications Facility located on Borough-owned
Support Structures in the Rights-of-Way, the Grantee must also obtain
a Rental Agreement(s) and pay the Borough for each Borough-owned Support
Structure utilized an additional fee of $500 per Borough-owned Support
Structure as the applicable Rental Agreement Use Fee.
(2)
The Rental Agreement Use Fee shall be due and payable at the time
a Rental Agreement is issued for new Borough-owned Support Structures
utilized in a given year, and with each annual Rental Agreement Use
Fee required by this section, the Grantee shall pay the Rental Agreement
Use Fee based on the number of Borough-owned Support Structures being
utilized at the time the annual Rental Agreement Use Fee is due. There
shall be no proration of the Rental Agreement Use Fee.
f.
Additional
Applicable Payment Requirements.
(1)
Any Communications System or part thereof located in the Borough
Rights-of-Way and not subject to a Use Agreement approved by the Borough
in accordance with Ordinance shall obtain a Use Agreement under this
Ordinance. The Use Fees stated in this section and as set forth in
an exhibit attached to a Use Agreement shall apply except as prohibited
by Applicable Law, PUC authority or as otherwise determined by the
Borough.
(2)
The Wired and Wireless Use Fees and Rental Agreement Use Fees shall
be payable quarterly and as described in a Use Agreement or Rental
Agreement.
(a)
Each quarterly payment shall be payable and reportable no less
than 30 days after the relevant assessment date.
(b)
Each payment shall be accompanied by a report from the Grantee
in a form approved by the Borough and as set forth in an exhibit attached
to a Use Agreement showing the basis for the computation and other
relevant data as may be required by the Borough.
(c)
Each of the reports shall contain a notarized verification by
the Chief Financial Officer of the Grantee and the reports shall be
verified annually, within 90 days of the close of business of the
last day of the calendar year, by a certified public accountant selected
by the Borough at the expense of the Grantee.
(d)
Failure to comply strictly with this section shall be deemed
to be a violation of this Ordinance and shall subject the Grantee
to all penalties and remedies, both legal and equitable, which are
available to the Borough.
(3)
The acceptance of any payment required hereunder by the Borough shall
not be construed as an acknowledgement that the amount paid is the
correct amount due, nor shall the acceptance of payment be construed
as a release of any claim which the Borough may have for additional
sums due and payable.
(a)
All payments shall be subject to audit by the Borough and assessment
or refund if the payments is found to be in error.
(b)
In the event that audit results in an assessment by and an additional
payment to the Borough, additional payment shall be subject to interest
at the rate of 6% per year and to a penalty of 6% per year, which
shall be due and payable immediately.
(4)
Nothing in this Ordinance shall be construed to limit the liability
of the Grantee for all applicable federal, state and local taxes.
g.
Third
Party Use of Communications Facilities. Any revenues derived by a
Grantee from the use of its Facilities by any Person other than Grantee,
including any lease arrangement, shall be fully disclosed by a Grantee
to the Borough and the revenue derived by Grantee from such use shall
be subject to all applicable fee payments required by this section.
Further, to the extent such use or Services by such Person may be
subject to the obtaining of a Use Agreement pursuant to this Ordinance
or a Franchise Agreement pursuant to the Cable System Regulatory Ordinance
such Person will be required, prior to any lawful use by such Person
of any portion of a Grantee's Communications Facilities, to receive
a Use Agreement or Franchise from the Borough.
h.
Quarterly
Payments Made. Grantee shall make payments quarterly, except as described
in a Use Agreement. Grantee shall send all payments payable hereunder,
to:
|
Finance Department
Borough of State College
243 South Allen Street
State College, PA 16801
|
[Ord. 1960, 2/7/2011]
a.
Indemnification.
As a condition of use of the Rights-of-Way, every Grantee at its sole
cost and expense, shall indemnify, protect, defend and hold harmless
the Borough, its elected officials, officers, employees, and agents
acting in their official capacities, from and against any and all
claims, demands, losses, damages, liabilities, fines, charges, penalties,
administrative and judicial proceedings and orders, judgments, remedial
actions of any kind, and all costs and expenses of any kind, including,
without limitation, reasonable attorney's fees, directly or indirectly,
in whole or in part, resulting from the granting of a Use Agreement,
property damage or bodily injury (including accidental death) that
arise out of Grantee's construction, operation, maintenance or removal
of a Communications System, except to the extent arising from or caused
by the sole or gross negligence or willful misconduct of the Borough,
its elected officials, officers, employees, agents or contractors.
The Borough shall give Grantee written notice of its obligation to
indemnify and defend the Borough within 10 business days of receipt
of a claim or action pursuant to this section. If the Borough determines
that it is necessary for it to employ separate counsel, the costs
for such separate counsel shall be the responsibility of the Borough.
[Ord. 1960, 2/7/2011; amended by Ord. 2070, 2/1/2016, Section
1]
a.
Insurance
Required. Upon execution of this Agreement, the Grantee shall carry
a Commercial General Liability insurance policy naming the Borough
as an Additional Insured thereunder. Additional Insured coverage shall
apply as primary insurance with respect to any other insurance afforded
to Borough. The coverage available to the Borough, as Additional Insureds,
shall not be less than $1,000,000 Each Occurrence, $2,000,000 General
Aggregate, $2,000,000 Products/Completed Operations Aggregate, and
$1,000,000 Personal and Advertising Injury limits. A Certificate of
Insurance shall be provided to the Borough indicating the described
coverage exists during the entire term of this agreement.
Umbrella Liability Insurance: The coverage shall not be less
than $2,000,000 Each Occurrence, $2,000,000 Aggregate. Such insurance
shall provide coverage over and above the stated Commercial General
Liability limits.
Such insurance shall cover liability arising from any aspect
of this agreement. All coverage shall be placed with an insurance
company duly admitted in the State of Pennsylvania, shall be reasonably
acceptable to the Borough and must maintain an A.M. Best rating of
A- or better.
Additionally and prior to commencement of any aspect of this
agreement, the Grantee shall provide the Borough with a Certificate
of Insurance showing liability insurance coverage as described above.
In the event any of these policies are terminated, Certificates of
Insurance showing replacement coverage shall be provided to the Borough.
Each policy required shall be endorsed to provide at least 30 days'
prior notice of cancellation for any reason except non-payment of
premium. Alternatively, Grantee agrees to provide at least 30 days'
prior notice of cancellation for any reason except non-payment of
premium. Grantee agrees to provide at least 10 days' prior notice
of cancellation for non-payment of premium.
[Ord. 1960, 2/7/2011]
a.
Notices.
All notices which shall or may be given pursuant to this Ordinance
and a Use Agreement shall be in writing and delivered personally or
transmitted (a) through the United States mail, by registered or certified
mail, postage prepaid; (b) by means of prepaid overnight delivery
service; or (c) by facsimile or e-mail transmission, if a hard copy
of the same is followed by delivery through the U.S. mail or by overnight
delivery service as just described, addressed as described in a Use
Agreement.
b.
Date
of Notices; Changing Notice Address. Notices shall be deemed given
upon receipt in the case of personal delivery, three days after deposit
in the mail, or the next business day in the case of facsimile, e-mail,
or overnight delivery.
[Ord. 1960, 2/7/2011]
a.
Violation.
Each of the following shall constitute a violation by Grantees:
(1)
Failure to make any payments to the Borough by the due date, as required
to be made in respect to any payment required of Grantee is set forth
in this Ordinance and a Use Agreement.
(2)
Failure to maintain the required liability insurance policies, or
to provide evidence of such to the Borough upon request.
(3)
Failure to provide and maintain a valid surety bond or letter of
credit as provided in this Ordinance and a Use Agreement.
(4)
Any substantial breach of a material provision of any condition to
use of Rights-of-Way set forth herein.
(5)
Any persistent failure by Grantee to comply with any of the provisions,
terms or conditions of this Ordinance or Use Agreement or with any
rules, regulations, orders or other directives of the Borough or their
applicable authority including the PUC after having received written
notice of a failure to comply.
(6)
Any act or omission that is not in compliance with any provision
of any regulatory ordinance that is not cured within 30 days' written
notice thereof.
(7)
The condemnation by public authority, other than the Borough, or
sale or dedication under threat or in lieu of condemnation, of all
or substantially all of the Grantee's Facilities.
b.
Remedies
of the Borough. Upon the occurrence of a violation, the Borough shall
notify the Grantee in writing in accordance with § 16-314a
and b herein at least 30 days before pursuing any of the following
remedies:
(1)
Make a claim against the surety bond required by the provisions of
this Ordinance for any specified amount due to the Borough.
(2)
Make a claim against the surety bond required by the provisions of
this Ordinance for the collection of penalties in an amount up to
$200 per day or per incident.
(3)
Revoke the rights and privileges granted under this Ordinance or
a Use Agreement, and require Grantee to remove its Facilities from
the Rights-of-Way.
(4)
Invoke any other remedy available by law or equity.
c.
Procedure
for Imposition of Penalties.
(1)
If the Borough is able to demonstrate that a Grantee has committed
a violation in accordance with § 16-315a above, it shall
promptly notify Grantee in writing of the nature of such violation
and, if applicable, the section of this Ordinance or Use Agreement
that it believes has been violated. If the Borough does not notify
Grantee of any violation of this Ordinance or Use Agreement, it shall
not operate as a waiver of any rights of the Borough hereunder or
pursuant to Applicable Law.
(2)
Grantee shall have 45 days to cure such violation after written notice
is received by taking appropriate steps to comply with the terms of
this Ordinance or Use Agreement, except that any violations of any
applicable safety or construction requirements or regulations that
present a threat to health or safety may be required to be eliminated
or remedied in a shorter period of time as deemed appropriate under
the circumstances by the Borough Manager. If the nature of the violation
is such that, in the Borough's reasonable judgment, it cannot be fully
cured within 45 days due to circumstances outside of Grantee's control,
the period of time in which Grantee must cure the violation may be
extended by the Borough in writing for such additional time necessary
to complete the cure, provided that Grantee shall have promptly commenced
to cure and is diligently pursuing its efforts to cure in the reasonable
judgment of the Borough.
(3)
If the violation has not been cured within the time allowed under
§ 16-315c of this Ordinance, then Grantee shall be liable
for liquidated damages in accordance with § 16-315d of this
Ordinance.
The Borough shall not pursue any remedies by reason of any violation
that is either (i) cured or with respect to which a plan to cure reasonably
acceptable to the Borough has been presented to the Borough by the
Grantee prior to the time at which the proposed draw can be made,
or (ii) with respect to which the Grantee have not been given notice
as provided above. A claim against any surety bond shall, to the extent
of such claim, constitute a credit against the amount of the applicable
liability of the Grantee to the Borough.
d.
Liquidated
Damages and Opportunity to Cure.
(1)
Because Grantee's failure to comply with provisions of this Ordinance
or Use Agreement may result in harm to the Borough and because it
will be difficult to measure the extent of such harm, the Borough
may assess liquidated damages against Grantee. Such damages shall
not be a substitute for specific performance by Grantee, but shall
be in addition to such performance.
(2)
The first day for which liquidated damages may be assessed, if there
has been no cure after the end of the applicable cure period, shall
be the day after the end of the applicable cure period, including
any extension of the cure period granted by the Borough. Liquidated
damages may not be assessed for a time period exceeding 120 days,
after which the Borough may initiate an action in law or equity in
a court of competent jurisdiction.
(3)
Without limiting or waiving any rights of enforcement of this Ordinance
or a Use Agreement the Borough may have, it may assess liquidated
damages against Grantee in the following amount provided Grantee has
had an opportunity to cure in accordance with § 16-315c(2)
of this Ordinance:
For failure to comply with any provision of this Ordinance or
Use Agreement: $200 per day for each day the violation continues.
e.
Non-Enforcement
by Borough. Grantee shall not be relieved of any obligations to comply
with any of the provisions of this Ordinance or Use Agreement by reason
of any failure or delay of the Borough to enforce prompt compliance.
The Borough may only waive its rights hereunder by expressly so stating
in writing and with approval of the Borough Council. Any such written
waiver by the Borough of a breach or violation of any provision of
this Ordinance or Use Agreement shall not operate as or be construed
to be a waiver of any subsequent breach or violation.
f.
Taxes
and License Fees. Grantee shall be fully responsible for the payment
of all applicable PUC, FCC and other applicable authority, ad valorem,
property, use, and other taxes, as well as business license and other
fees.
[Ord. 1960, 2/7/2011]
The rights and privileges herein granted to Grantees in a Use
Agreement shall be personal to Grantee. Accordingly, a Grantee shall
not sell, transfer, lease, assign, sublet, or dispose of in whole
or in part, either by forced or voluntary sale, or by ordinary sale,
consolidation, or otherwise, any of the rights or privileges granted
it by this Ordinance and a Use Agreement, without the prior consent
of the Borough, which consent shall not be unreasonably withheld.
a.
Miscellaneous
Provisions. The provisions which follow shall apply generally to the
obligations of the parties under this Ordinance.
b.
Non-Exclusive
Use. Grantees understand that this Ordinance and a Use Agreement or
Rental Agreement does not provide Grantee with exclusive use of the
Rights-of-Way or any Borough-owned Support Structures and that Borough
shall have the right to permit other Providers of Communications Systems
to install equipment or devices in the Rights-of-Way and on Borough-owned
Support Structures also used by Grantee.
c.
Severability
of Provisions. If any one or more of the provisions of this Ordinance
shall be held by court of competent jurisdiction in a final judicial
action to be void, voidable, or unenforceable, such provision(s) shall
be deemed severable from the remaining provisions of this Ordinance
and shall not affect the legality, validity, or constitutionality
of the remaining portions of this Ordinance. Each party hereby declares
that it would have entered into this Ordinance and each provision
hereof regardless of whether any one or more provisions may be declared
illegal, invalid, or unconstitutional.
d.
Contacting
Grantee. Grantee shall be available to the staff employees of any
Borough department having jurisdiction over Grantee's activities 24
hours a day, seven days a week, regarding problems or complaints resulting
from the attachment, installation, operation, maintenance or removal
of a Communications System. The Borough may contact by telephone the
network control center operator at a telephone number and Person or
Persons as described in a Use Agreement.
e.
Descriptive
Headings. The captions to sections and subsections contained herein
are intended solely to facilitate the reading thereof. Such captions
shall not affect the meaning or interpretation of the text herein.
f.
Governing
Law; Jurisdiction. This Ordinance shall be governed and construed
by and in accordance with the laws of the Commonwealth of Pennsylvania,
without reference to its conflicts of law principles. If suit is brought
by a party to this Ordinance, the parties agree that trial of such
action shall be vested exclusively in the state courts of Pennsylvania,
Centre County or in the United States District Court serving Pennsylvania.
g.
Amendment
of Ordinance. This Ordinance may not be amended except pursuant to
a written notice to affected Grantees and after public hearing by
Borough Council.
h.
Acceptance.
The rights and privileges granted by this Ordinance shall not be effective
until receipt by the Borough of an unconditional acceptance from Grantee,
in written form to a Use Agreement 30 days of approval by the Borough
Council and shall be in writing and shall include delivery of all
outstanding and current payments, insurance certificates, applications,
acceptance fees, and performance of other requirements as set forth
in this Ordinance and the Use Agreement.
