[Adopted 7-3-2001 by Ord. No. 1012]
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 or a
construction permit.
The form prescribed by the Borough which the applicant must
complete in order to obtain a right-of-way permit.
The building, erection or installation in, on or under a
right-of-way. It does not include maintenance or repair of equipment
in a right-of-way or a single line extension from equipment in the
right-of-way.
The document that must be obtained before a person may perform
construction in a right-of-way.
An interruption of service or a condition that poses a clear
and immediate danger to life or health or significant loss of property.
Any tangible property located or proposed to be located in
a right-of-way, including, but not limited to wires, lines, cables,
conduits, pipes, supporting structures or other facilities.
Work of a minor nature that will keep an existing condition
from failure or decline.
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 condition
that is as good as or better than its condition before construction.
The surface and space in, on and above any real property
in which the Borough has an interest in law or in equity, including,
but not limited to, any public street, boulevard, avenue, road, highway,
easement, freeway, lane, alley, court, sidewalk, tunnel or bridge,
other than real property owned in fee by the Borough.
A written authorization granted by the Borough to an applicant
for use of the rights-of-way in the Borough for wires, lines, cables,
conduits, pipes, supporting structures and other facilities.
The services offered to customers involving the transmission
of video, data and/or voice communications and/or content, both active
and interactive, and associated usage.
A system used or to be used to provide telecommunication
services.
All equipment that is located wholly or partially underneath
a right-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. Any person maintaining or operating a telecommunications system
as of the effective date of this article shall also obtain a right-of-way
permit.
B.
Before a right-of-way permit is issued, the holder
of or applicant for a right-of-way permit shall have applied for any
and all regulatory approvals, permits or authorizations from the appropriate
federal and state authorities, if required. Upon the request of the
Borough, the applicant shall submit written evidence of 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 or the Borough's right
to require prospective or current right-of-way permit holders to secure
and remit payment for any and all required permits or authorizations.
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, which form may be revised from time to
time. Upon request, an applicant shall be provided with a copy of
the then current application for a right-of-way permit. The application
shall request information regarding the applicant's proposed or actual
physical use and occupation of the rights-of-way. Specifically, the
application shall request a brief description of the telecommunications
service or services to be offered or provided in or through the Borough;
specific information regarding the equipment it proposes to place
or currently maintains in the rights-of-way; the expected physical
burden that such equipment will place or does place on the rights-of-way;
and whether the equipment will or does have a detrimental effect on
public safety as it relates to the rights-of-way. If the completed
application does not fully provide such requested information, the
Borough may request such additional information as is necessary to
enable it to make a determination regarding the physical use and occupation
of the rights-of-way by the applicant. The application may request
less information from a permit holder applying for a renewal of a
right-of-way permit.
B.
Upon submission of a fully completed application to the Borough and the accompanying fee, the Borough shall review the application as follows: for new applicants, the Borough shall grant or deny such applications within 20 business days; for existing permit holders applying for a renewal of their permits who are not under suspension in accordance with § 193-41 below, the Borough shall grant or deny such applications within 10 business days. If the Borough fails to grant or reject such application within the time periods specified above, the application shall be deemed approved. In each case, the Borough shall review the application to determine whether such use would have a detrimental effect on public safety as it relates to the rights-of-way or would place an undue physical burden on the rights-of-way.
C.
In considering an application, the Borough may use
such outside experts as it deems necessary. In the event that the
Borough deems it necessary to employ an outside expert or experts
to advise the Borough with respect to a particular application, the
reasonable costs of such expert or experts shall be borne by the applicant.
A.
The right-of-way permit shall be issued for a period
of one year. Permit holders may apply for a renewal of a right-of-way
permit prior to its expiration. The Borough may suspend such right-of-way
permit in the event that any one or more of the following has occurred:
(1)
The permit holder shall have caused damage to Borough
property or the right-of-way without the prior consent of the Borough
(except in the case of an emergency) and without completing proper
restoration.
(2)
The permit holder or the permit holder's equipment
in the right-of-way has had a detrimental effect on public safety
as it relates to the rights-of-way.
(3)
The permit holder failed to pay any of the fees required
under this article.
B.
If the Borough has reason to believe that one or more
of the above events has occurred, it shall notify the permit holder
in writing. The permit holder shall have 20 business days to cure
the violation, unless the Borough reasonably determines that the event
is an emergency, in which case the Borough may impose a shorter time
period to cure the violation.
C.
If the permit holder fails to cure the violation within
the specified time period, the Borough shall be permitted to immediately
suspend the right-of-way permit. A suspension shall be brought to
the attention of the Brookville Borough Council at its next meeting,
at which time the Borough Council shall be permitted to uphold or
withdraw the suspension. The permit holder shall be provided an opportunity
to be heard at such meeting.
A.
Except in the case of an emergency, before commencing
any construction in the rights-of-way, a person shall submit to the
Borough detailed plans of the proposed construction activity. Such
plans shall include the type of construction activity, the equipment
proposed to be installed or erected, the specific locations of the
construction activity and the scheduled beginning and ending dates
of all planned construction. Such plans shall also include the name(s),
address(es) and experience of any and all subcontractors whom applicant
intends to utilize. Such information may be submitted concurrently
with an application for a right-of-way permit.
B.
Upon submission of all such information required in Subsection A above, the Borough shall review such information and either grant or deny a construction permit within 20 business days. If the Borough fails to grant or deny the construction permit within such time period, the permit shall be deemed granted. In each such case, the Borough shall review the information provided herein to determine whether such construction would have a detrimental impact on public safety as it relates to the rights-of-way. The Borough may impose conditions on the construction permit regulating the times, locations and manner of construction to preserve effective traffic flow, prevent hazardous road conditions and/or minimize noise impacts.
A.
Each new applicant for a right-of-way permit shall
include with its application an application fee in the amount of $500.
This fee, which may be adjusted from time to time by the Borough Council
by resolution, is directly related to the Borough's costs in reviewing
the application (excluding expert costs) and managing the rights-of-way
with respect to each permit holder. Such costs in managing the rights-of-way
include, but are not limited to, inspection costs, administrative
costs, costs of maintaining the rights-of-way and costs of degradation
of streets and right-of-way property. This fee will not be refunded
in the event that the application is denied. If the application is
granted, the application fee will apply to the full term of the right-of-way
permit of one year. If the applicant applies for a construction permit
concurrently with the application for a right-of-way permit, then
the application fee contained herein shall apply to both the right-of-way
permit and the construction permit.
B.
Each existing permit holder applying for a renewal
of its right-of-way permit shall include with its application an annual
fee in the amount of $300. This fee, which may be adjusted from time
to time by the Borough Council by resolution, is directly related
to the Borough's costs in managing the rights-of-way with respect
to each permit holder. Such costs include, but are not limited to,
inspection costs, administrative costs, costs of maintaining the rights-of-way
and costs of degradation of streets and right-of-way property.
C.
Each applicant for a construction permit shall include
with its application an application fee in the amount of $200. This
fee, which may be adjusted from time to time by the Borough Council
by resolution, is directly related to the Borough's costs in reviewing
the application and determining time, place and manner restrictions
on the construction activity. If the application for a construction
permit is denied, this fee shall not be refunded. If the application
is granted, then the applicant shall pay, within 30 days of the presentation
of a statement, the Borough's actual costs based on the hourly rate
established by resolution of the Brookville Borough Council. Such
actual costs include, but are not limited to, costs of disruption
and rerouting of traffic, inspection costs and administrative costs.
D.
Extraordinary expenses. In addition to the fees set
forth above, a permit holder shall pay, within 30 days of the presentation
of a statement, any extraordinary or unusual expenses reasonably incurred
by the Borough as a result of the permit holder's use of the rights-of-way,
provided that the Borough notifies the permit holder of the expected
expenses prior to them being incurred and provides the permit holder
with an opportunity to mitigate such expenses. Examples of extraordinary
or unusual costs include, but are not limited to, the cost of obtaining
and operating a backhoe, dump truck or other heavy equipment used
to repair the right-of-way and overtime or special pay for police
officers or other emergency services. The statement of such expenses
presented to the permit holder shall be directly related to the Borough's
actual costs.
E.
In the event that payment of any of the fees identified
above is not made upon submission of the application or by the date
due, the applicant or permit holder shall pay a late payment penalty
of simple interest at 10% annual percentage rate of the total amount
past due. Such penalty shall be in lieu of any other monetary penalty.
Acceptance of payment under this section shall not in any way limit
or waive the Borough's right to suspend or terminate the permit according
to the terms of this article.
A.
The Borough shall have the right to limit the placement
of new or additional equipment in the right-of-way if there is insufficient
space to reasonably accommodate all requests to occupy and use the
rights-of-way. The Borough shall consider requests for occupying and
using the rights-of-way in the order of receipt of fully completed
applications for right-of-way permits. The Borough shall strive, to
the extent possible, to accommodate all requests, but shall be guided
by the physical condition of the right-of-way and whether such use
would have a detrimental effect on public safety as it relates to
the right-of-way.
B.
The Borough shall have the right to monitor the telecommunications
systems and the equipment related thereto located in the rights-of-way
in order to prevent interference between and among such systems and
equipment.
C.
A permit holder shall allow the Borough to make inspections
of any part of the permit holder's telecommunications system located
in the rights-of-way at any time upon three days' notice or, in case
of an emergency, upon demand.
A.
Whenever a permit holder or any of its subcontractors
shall disturb any pavement, sidewalk or other public property in order
to perform any underground activities, the permit holder shall fully
comply by registering with Pennsylvania's "One Call" system pursuant
to 73 P.S. § 176 et seq. Each permit holder shall perform
construction activity in a manner consistent and in compliance with
the detailed plans it submitted to the Borough and all applicable
federal, state and local laws and regulations.
B.
Whenever a permit holder or any of its subcontractors
shall cause damage to the right-of-way or to Borough property in the
right-of-way, the permit holder shall restore such right-of-way or
property within 20 business days, weather permitting.
C.
The telecommunications system shall not endanger or
interfere with the safety of persons or property within the Borough.
All operating, maintenance, construction and repair personnel shall
be thoroughly trained in the safe use of all equipment and in the
safe operation of vehicles. Such personnel shall follow all safety
procedures required by applicable federal, state and local laws and
regulations. The permit holder shall routinely inspect and maintain
all areas of the telecommunications system so that conditions that
could develop into safety hazards shall be corrected before they become
a hazard.
D.
Except in the case of an emergency, at least three
days prior to the commencement of any construction activity, the permit
holder shall notify nearby residents of such construction activity
in a manner which is satisfactory to the Borough. The name of the
permit holder shall be clearly disclosed to such residents.
E.
All construction activity shall be performed in an
orderly and workmanlike manner and in close coordination with public
utilities serving the Borough following accepted industry construction
procedures and practices.
F.
All wires, cables and other equipment shall be installed,
where possible, parallel with electric and telephone lines, and multiple
cable configurations shall be arranged in parallel and bundles with
due respect for engineering considerations.
G.
All wires, cables and other equipment shall be installed
underground where required by municipal ordinance or regulation consistent
with the same requirement being imposed on all other similarly situated
companies, including public utilities.
A.
A permit holder shall, at its sole cost and expense,
indemnify and hold harmless the Borough, its elected and appointed
officials, employees and agents at all times against any and all claims
for personal injury, including death, and property damage arising
out of the permit holder's use or occupancy of the rights-of-way.
A permit holder shall defend any actions or proceedings against the
Borough in which it is claimed that personal injury, including death,
or property damage was caused by the permit holder's use or occupancy
of the rights-of-way. The obligation to indemnify, hold harmless and
defend shall include, but not be limited to, the obligation to pay
judgments, injuries, liabilities, damages, attorneys' fees, reasonable
expert fees, court costs and all other costs of indemnification. A
permit holder shall not be required to indemnify and hold the Borough
harmless for claims caused by the Borough's negligence, gross negligence
or willful misconduct.
B.
A permit holder shall at all times during the life
of a permit carry and require its subcontractors to carry liability,
property damage, worker's disability and vehicle insurance in such
form and amount as shall be determined by the Borough as set forth
in the permit. A permit holder shall name the Borough as an additional
insured on its liability insurance policies. All required insurance
coverage shall provide for 30 days' notice to the Borough in the event
of material alteration or cancellation of such coverage prior to the
effective date of such material alteration or cancellation.
A.
A permit holder shall annually provide the Borough,
upon application for renewal of the permit or upon request, the current
maps of the horizontal and vertical locations of its existing installations
and a summary of all additions and deletions of equipment in the rights-of-way
unless no changes have occurred in the previous year. If no changes
have occurred in the previous year, the permit holder shall so inform
the Borough.
B.
A permit holder shall submit to the Borough such reasonable
information directly related to the permit holder's use and occupation
of the rights-of-way as the Borough may request. All information provided
to the Borough shall be maintained by the Borough as proprietary and
confidential if such information is designated in good faith as such
prior to the time it is provided to the Borough.
A right-of-way permit may be transferred or
assigned, upon 30 days' written notice to the Borough, provided that
the transferee/assignee agrees in writing to comply with all of the
obligations and requirements contained in this article.
A permit holder may be required, prior to construction,
to obtain a performance bond in a reasonable amount set by the Borough
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 may reduce or cancel
the bond requirement when construction is completed.
A.
In addition to all other rights and powers reserved
by the Borough, the Borough reserves the right to terminate a permit
and all rights and privileges of a permit holder for any of the following
reasons:
(1)
A permit holder fails, after 30 days' prior written
notice, to comply with any of the material 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 under the permit.
(5)
The Borough condemns all of the property of a permit
holder within the Borough by the lawful exercise of eminent domain.
(6)
The permit holder abandons the telecommunications
system.
B.
No termination shall be effective unless and until
the Brookville Borough Council shall have adopted a resolution setting
forth the cause and reason for the termination and the effective date,
which resolution shall not be adopted without 30 days' prior notice
to permit holder and an opportunity for the permit holder to be heard
before the Borough Council on the proposed resolution.
A.
Upon expiration or termination of the permit, if the
permit is not renewed, the permit holder shall, upon 60 days' prior
written notice to the permit holder, remove its equipment from the
rights-of-way and shall restore said areas. If such removal is not
completed within six months of such notice, the Borough may deem any
property not removed as abandoned and the Borough may remove it at
the former permit holder's expense.
B.
During the term of the permit, if the permit holder
decides to abandon or no longer use all or part of its telecommunications
system, it shall provide the Borough with written notice of its decision
at least 30 days prior to such decision, which notice shall describe
the equipment and its location. The Borough shall have the right to
require the permit holder to remove the equipment upon 60 days' prior
written notice to the permit holder. If such removal is not completed
within six months of such notice, the Borough may remove it at the
permit holder's expense.
If the Borough has reason to believe that the
permit holder violated any of the terms of this article, it shall
notify the permit holder in writing of the nature of the violation
and the section of this article which it believes has been violated.
The permit holder shall have 20 business days to cure the violation.
If the nature of the violation is such that it cannot be fully cured
within such time period, the Borough may, in its reasonable judgment,
extend the time period to cure. If the violation has not been cured
within the time period allowed, it shall be subsequently punishable
by a fine of up to $600 per day, plus costs of prosecution, and, in
default of payment of such fine and costs, by imprisonment for a term
not to exceed 30 days, until the violation is cured.
The Borough, by granting any permit under this
article, does not waive, lessen, impair or surrender the lawful police
powers vested in the Borough under applicable federal, state and local
laws pertaining to the regulation or use of the rights-of-way.
The provisions of this article shall be imposed
upon and enforced against all persons requiring a permit from the
Borough.
