[Adopted 3-20-2001 by Ord. No. 1281]
Unless the context specifically indicates otherwise, the meaning
of the terms used in this article shall be as follows:
The person who has applied for a right-of-way permit.
The form prescribed from time to time by the Borough of Etna
which the applicant must complete in order to obtain a right-of-way
permit.
The document that must be obtained before a person may perform
construction in a right-of-way.
A condition that poses a clear and immediate danger to life
or health, or significant loss of property,
When used in conjunction with "rights-of-way" means over,
above, in, within, or under a right-of-way.
The person obtaining a right-of-way permit.
Any individual, firm, partnership, association, corporation,
company or other business entity.
The process by which a right-of-way is returned to a state
that is as good or better as its condition before construction.
A written agreement granted by the Borough of Etna to an
applicant for use of the rights-of-way in the Borough of Etna for
wires, poles, pipes, conduits and other facilities, but not to transact
local business with another person.
The surface and space above and below any real property in
which the Borough of Etna has an interest in law or in equity, including
but not limited to any public street, boulevard, road, highway, easement,
freeway, lane, alley, court, sidewalk, parkway, river, tunnel, viaduct,
bridge, park, green space, or any other place, area or real property,
other than real property owned in fee by the Borough of Etna.
The regulated and unregulated services offering to customers
the transmission of video, data and/or voice communications, both
active and interactive, and associated usage.
A system used or to be used to provide telecommunication
services, including public or private line video, data or voice service
to another person, using or crossing a street, highway, rights-of-way
or easements in the Borough of Etna, but it shall not include cable
television service offered pursuant to a franchise granted under the
Borough of Etna Code.
All equipment that is located wholly or partially underneath
rights-of-way.
A.
No person shall enter upon or occupy any right-of-way for the purpose
of installing, constructing, maintaining or operating a telecommunications
system without first having obtained a right-of-way permit.
B.
Before offering or providing any telecommunications service, the
holder of or applicant for a right-of-way permit shall have applied
for any and all regulatory approvals, permits or authorizations from
the appropriate federal, state and local authorities, if required.
Upon the request of the Borough of Etna, the applicant shall submit
written evidence of all materials relevant to its applications for
or receipt of all such approvals, permits or authorizations.
C.
Nothing in this article shall be construed as a waiver of any ordinances
or regulations of the Borough of Etna or the Borough of Etna's
right to require the prospective right-of-way permit holders to secure
appropriate permits or authorizations for such use. No fee or charge
may be imposed upon a right-of-way permit holder for any such permit
or authorization, other than the standard fees or charges generally
applicable to all persons for such permits or authorizations. Such
standard fee or charge shall not be offset against any right-of-way
permit fees.
A.
A right-of-way permit shall only be granted after an applicant has
completed an application in the form that has been prescribed by the
Borough of Etna, which form may be revised from time to time. Upon
request, an applicant shall be provided with a copy of the then current
application for a right-of-way permit. The application shall contain
information concerning the applicant, its proposed used of the rights-of-way
and the likely burden that will be placed on the rights-of-way and
the Borough of Etna. Following receipt of the application, the Borough
of Etna may request such additional information as is necessary to
enable it to make a determination as to the cost and potential harm
posed by the applicant's proposed use of the rights-of-way.
B.
Before commencing any construction, installation or other work in
the rights-of-way, an applicant shall submit to the Borough of Etna
detailed plans of its proposed construction, installation or other
work. Such plans shall include the specific locations and the beginning
and ending dates of all known planned construction.
C.
The applicant shall submit a fully completed application to the Borough
of Etna for consideration at least 60 days prior to the date that
it intends to begin occupying the rights-of-way for the purpose of
constructing or installing a telecommunications system. Upon receipt
of a properly and fully completed application and accompanying fees,
the Borough of Etna shall conduct a review of the application to determine
whether or not the granting of a right-of-way permit to the applicant
will promote the provision of telecommunications services while fulfilling
the purposes of this article. Specifically, the Borough of Etna will
determine whether the granting of a right-of-way permit will ensure
the public safety and protect the Borough of Etna's rights-of-way
from excessive damage.
D.
The Borough of Etna shall have the power to prohibit or limit the
placement of new or additional equipment within the rights-of-way
if there is insufficient space to reasonably accommodate all existing
and potential users of the rights-of-way, but shall be guided primarily
by considerations of the public interest, the conditions of the rights-of-way
and the protection of existing and potential equipment in the rights-of-way.
E.
In considering an application, the Borough of Etna may use such outside
experts that it deems appropriate. In the event the Borough of Etna
deems it necessary to employ outside technical experts, the costs
of such expert shall be borne by the applicant.
A.
The right-of-way permit shall be issued for a period of one year.
Each year, within 60 days prior to the anniversary of the issuance
of the permit, the permit holder shall apply for a renewal for a period
of one year. The Borough of Etna shall renew the permit for a period
of one year unless the Borough of Etna orders otherwise as a result
of any one or more of the following having occurred:
(1)
The permit holder shall have failed to pay any of the fees required
under this article or any other amount due to the Borough of Etna;
(2)
The permit holder shall have failed to obtain, or having previously
obtained, shall have had revoked, any approvals, permits or authorizations
required under any federal, state or local statute or regulation;
(3)
The permit holder shall have caused damage to the Borough of Etna
property or the right-of-way without the prior consent of the Borough
of Etna and without completing proper restoration;
(4)
The permit holder has or is likely to endanger the public safety.
B.
The Borough of Etna shall be permitted to immediately suspend any right-of-way permit if any of the events listed in Subsection A above occur. A suspension shall be brought to the attention of the Council of the Borough of Etna at its next meeting; at which time Council shall be permitted to uphold or withdraw the suspension.
Violation of any of the terms of this article shall be punishable
by a fine of up to $100 per day from the day the Borough of Etna provides
notice of the violation until the violation is cured.
A.
Each applicant shall include with its application an application
fee in the amount of $500. The purpose of this fee is to compensate
the Borough of Etna for reviewing the application (excluding expert
costs) and planning and implementing any changes that may be necessary
in order to safely allow for the provision of additional telecommunications
services. This fee will not be refunded in the event the application
is denied.
B.
Once an application is granted, a permit holder shall pay an annual
fee that is received by the Borough of Etna no later than 30 days
prior to the renewal date of the right-of-way permit. The annual fee
is established based upon historical costs of maintaining, preserving,
repairing and inspecting public property and estimated prospective
costs of such activities. The annual fee shall be the greater of the
following:
(1)
A per-linear-foot fee based on the per linear foot (not number of
lines or capacity) of the telecommunication system located in the
rights-of-way in the Borough of Etna equal to $0.40 per linear foot
of underground and $0.20 per linear foot of overhead lines, wires,
cables, poles, conduits and like structures, erections and fixtures
in the rights-of-way; or
(2)
$500.
C.
Miscellaneous fees. In addition to the fees set forth above, a permit
holder shall pay, within 30 days of the presentation of a statement,
any extraordinary or unusual expenses incurred by the Borough of Etna
as a result of the use of the rights-of-way. Examples of extraordinary
or unusual costs include the cost of obtaining and operating a backhoe,
dump truck or other heavy equipment used to repair the right-of-way,
overtime or special pay for police officers, hazardous waste cleanup
or emergency services.
D.
Fee considerations:
(1)
Permit holders sharing the same conduit shall each pay a full fee.
(2)
Permit holders sending signals over another permit holder's
existing line or a line that is leased to another and upon which fees
are already paid are not subject to additional fees.
(3)
Permit holders using the same line to provide cable television service
and to provide telecommunications services shall be subject to both
a cable television franchise fee and all fees set by this article.
E.
A permit holder shall pay to the Borough of Etna an amount equal
to the annual fee within 30 days following the anniversary of the
issuance of the original permit.
F.
In the event that payment of any annual fee is made after the date
due, the permit holder shall pay a late payment penalty of simple
interest at 10% annual percentage rate of the total amount past due.
Acceptance of payment under this section shall not in any way limit
or inhibit the Borough of Etna from suspending or terminating the
permit according to the terms of this article.
A permit holder shall have no recourse whatsoever against the
Borough of Etna for any loss, costs, expense or damage arising out
of the failure to grant a permit. By applying for a permit, the applicant
acknowledges what it has not been induced to enter into a permit by
any understanding or promise or other statement, whether verbal or
written, by or on behalf of the Borough of Etna or by any other third
party concerning any term or condition of a permit not expressed in
this article.
A.
A permit holder shall, at its sole cost and expense, indemnify and
hold harmless the Borough of Etna, its elected and appointed officials,
employees and agents, at all times against any an all claims for personal
injury, including death, as well as claims for property damage arising
out of the permit holder's use or occupancy of the rights-of-way.
A permit holder shall defend any actions or proceedings against the
Borough of Etna in which it is claimed that personal injury, including
death, or property damage was caused by the permit holder's use
or occupancy of the rights-of-way. Such indemnification by the permit
holder shall include any and all claims for property damage to permit
holder's facilities caused by anything else in the rights-of-way.
B.
A permit holder shall at all times during the life of a permit carry
and require its contractors and subcontractors to carry liability,
property damage, workers' disability, and vehicle insurance in such
form and amount as shall be determined by the Borough of Etna as set
forth in the permit. A permit holder shall name the Borough of Etna
as an additional insured on its liability insurance policies. All
required insurance coverage shall provide for 30 days' notice
to the Borough of Etna in the event of material alteration or cancellation
of such coverage prior to the effective date of such material alteration
or cancellation. Failure of the permit holder to provide appropriate
insurance certificates to the Borough of Etna within 60 days after
the execution of a permit shall render the permit null and void.
A.
Except in the case of an emergency, a permit holder shall not commence
construction in the rights-of-way without first obtaining any necessary
construction permits as required under the Borough of Etna Code. Whenever
a permit holder shall disturb any pavement, sidewalk or other public
property in order to perform any underground activities, the permit
holder will fully comply by registering with Pennsylvania's "One
Call System" pursuant to 73 P.S. § 176 et seq. Each permit
holder shall construct, install and maintain its equipment in a manner
consistent and in compliance with the detailed plans it submitted
to the Borough of Etna and all applicable federal, state and local
laws and regulations.
B.
The telecommunications systems shall not endanger or interfere with
the safety of persons or property within the Borough of Etna. All
operating, maintenance, construction and repair personnel shall be
thoroughly trained in the use of all safety equipment and in the safe
operation of vehicles. Such personnel shall follow all safety procedures
required by applicable federal, state and local laws and regulations.
All areas of the telecommunications system shall be routinely inspected
and maintained so that conditions that could develop into safety hazards
can be corrected before they become a hazard.
C.
Construction, installation and maintenance of a telecommunications
system shall be performed in an orderly and workmanlike manner and
in close coordination with public utilities serving the Borough of
Etna, following accepted industry construction procedures and practices
and working through existing committees and organizations.
D.
All cable and wires shall be installed, where possible, parallel
with electric and telephone lines, and multiple cable configurations
shall be arranged in parallel and bundles with due respect for engineering
consideration.
A.
A permit holder shall annually provide the Borough of Etna, on the
anniversary date of the issuance of the permit, the current maps of
the horizontal and vertical locations of its existing installations
and a summary of all additions and deletions of equipment, wires and
conduit, in the rights-of-way unless no changes have occurred in the
previous year.
B.
Upon request by the Borough of Etna, the permit holder shall annually
file with the Borough of Etna a copy of its annual financial reports,
including its annual income statement, a balance sheet, and a statement
of sources and applications of funds.
C.
A permit holder shall submit to the Borough of Etna such reasonable
information or reports in such form and at such times as the Borough
of Etna may request. All information provided to the Borough of Etna
shall be maintained by the Borough of Etna as proprietary and confidential
if such information is designated in good faith as such prior to the
time it is provided to the Borough of Etna.
D.
Subject to the privacy rights of the permit holder, the Borough of
Etna shall have the right to inspect, during normal business hours,
upon 10 days' notice, all books, records, maps, plans, service
complaint logs, performance test results and other like materials
of the permit holder which relate to the operation of the telecommunications
system within the Borough of Etna. Access to the aforementioned records
shall not be denied by the permit holder on the basis that the records
contain proprietary information, provided that the Borough of Etna
maintains such information as proprietary and confidential.
E.
A permit holder shall allow the Borough of Etna to make inspections
of any of the permit holder's telecommunications system within
the Borough of Etna's boundaries at any time upon three days'
notice or, in case or emergency, upon demand without notice.
A rights-of-way permit may not be sold, transferred, assigned,
changed control, or otherwise encumbered, in whole or in part, without
the prior written consent of the Borough of Etna. This provision shall
not apply to a sale, transfer or assignment to a permit holder's
wholly owned parent or if less than 20% of the assets of the permit
holder are transferred to another entity.
A permit holder may be required, prior to construction, to obtain
a performance bond in a reasonable amount set by the Borough of Etna,
based upon the construction cost of the equipment to be installed
in the rights-of-way and the extent of the disturbance of such rights-of-way.
The performance bond shall ensure the permit holder's faithful
performance of its construction obligations. The Borough of Etna may
reduce or cancel the bond requirement when construction is completed.
A.
In addition to all other rights and powers reserved by the Borough
of Etna, the Borough of Etna reserves as an additional remedy the
right to terminate a permit and all rights and privileges of a permit
holder for any of the following reasons:
(1)
A permit holder fails, after 30 days' prior written notice,
to comply with any of the provisions of the permit or this article;
(2)
A permit holder becomes insolvent, unable or unwilling to pay its
debts or is adjudged bankrupt;
(3)
All or part of a permit holder's facilities are sold under an
instrument to secure a debt and are not redeemed by the permit holder
within 90 days from such sale;
(4)
A permit holder attempts to or does practice any fraud or deceit
in its conduct or relations with the Borough of Etna under the permit.
(5)
The Borough of Etna condemns all of the property of a permit holder
within the Borough of Etna by the lawful exercise of eminent domain;
(6)
The permit holder abandons the telecommunications system or fails
to seek renewal of its permit for 60 days following the expiration
of the permit.
B.
In lieu of termination, the Borough of Etna may place the permit
holder on probationary status for a period up to three years by the
adoption of a resolution by a majority of the Council of the Borough
of Etna. As a condition of being placed on probationary status, the
Council of the Borough of Etna may direct that the permit holder pay
up to double the amount of the annual fee as a monetary penalty and
require that it post an additional performance bond or other security.
C.
No termination or probation shall be effective unless or until the
Council of the Borough of Etna shall have adopted a resolution setting
forth the cause and reason for the termination or probation and the
effective date, which resolution shall not be adopted without 30 days'
prior notice to the permit holder and an opportunity for the permit
holder to be heard before the Council of the Borough of Etna on the
proposed resolution.
Upon expiration or termination of the permit, if the permit
is not renewed, the permit holder shall remove its wires, cable, lines,
supporting structures, and any and all other equipment from the rights-of-way
and shall restore said areas. If such removal is not completed within
six months of such termination, the Borough of Etna may deem any property
not removed as abandoned, and the Borough of Etna may remove it at
the former permit holder's expense. Except as otherwise provided,
the permit holder shall not remove any underground cable or conduit
which requires trenching or other opening of the streets unless it
is ordered to be removed by the Borough of Etna based upon a determination,
in the sole discretion of the Borough of Etna, that removal is required
to eliminate or prevent a hazardous condition or promote future utilization
of the streets and rights-of-way for public purposes.
If any section, subsection, sentence, clause, phrase or word
of the permit or this article is for any reason held invalid or unconstitutional
by any court of competent jurisdiction, such portion shall be deemed
a separate, distinct and independent provision, and such holding shall
not render invalid the permit or this article.
The provision of this article shall be imposed upon and enforce
against all persons requiring a permit from the Borough of Etna.
