[HISTORY: Adopted by the Borough Council of the Borough of
Millvale 3-13-2001 by Ord. No. 2180. Amendments noted where applicable.]
GENERAL REFERENCES
Streets and sidewalks — See Ch. 269.
Unless the context specifically indicates otherwise, the meaning
of the terms used in this chapter shall be as follows:
The person who has applied for a right-of-way permit or a
construction permit.
The form prescribed by the Borough of Millvale 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.
When used in conjunction with "rights-of-way," means over,
above, in, within, or under a right-of-way.
Work of a minor nature that will keep an existing condition
from failure to 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 state
that is as good or better as its condition before construction.
A written agreement granted by the Borough of Millvale to
an applicant for use of the rights-of-way in the Borough of Millvale
for wires, lines, cables, conduits, pipes, supporting structures,
and other facilities.
The surface and space in, on, above and below any real property
in which the Borough of Millvale 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, parkway,
river, tunnel, viaduct, bridge, park, green space, or any other place.
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 chapter shall also obtain a right-of-way permit.
B.
Before a right-of-way permit issued, the holder of or applicant for
a right-of-way permit shall have applied for any and all regulatory
approvals, permits of authorizations from the appropriate federal,
state and local authorities, if required. Upon the request of the
Borough of Millvale, the applicant shall submit written evidence of
its applications for or receipt of all such approvals, permits or
authorizations.
C.
Nothing in this chapter shall be construed as a waiver of any ordinances
or regulations of the Borough of Millvale or the Borough of Millvale'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 of Millvale, which form may be revised from time to time.
Upon request, an applicant shall be provided with a copy of the current
application for a 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 of
Millvale; the 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 right-of-way. If the
completed application does not fully provide such requested information,
the Borough of Millvale 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 of Millvale and the accompanying fee, the Borough of Millvale shall review the application as follows: for new applicants, the Borough of Millvale 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 § 223-4 below, the Borough of Millvale shall grant or deny such applications within 10 business days. If the Borough of Millvale fails to grant or reject such application within the time periods specified above, the application shall be deemed approved. In each case, the Borough of Millvale 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 of Millvale may use such
outside experts as it deems necessary. In the event that the Borough
of Millvale deems it necessary to employ an outside expert to advise
the Borough of Millvale with respect to a particular application,
the reasonable 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.
Permit holders may apply for a renewal of a right-of-way permit prior
to its expiration. The Borough of Millvale may suspend such right-of-way
permit in the event any one or more of the following has occurred:
(1)
The permit holder shall have caused damage to Borough of Millvale
property or the right-of-way without the prior consent of the Borough
of Millvale (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
chapter;
B.
If the Borough of Millvale 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 of Millvale reasonably determines
that the event is an emergency, in which case the Borough of Millvale
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 of Millvale shall be permitted to immediately
suspend the right-of-way permit. A suspension shall be brought to
the attention of the Borough Council at its next meeting at which
time 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 of Millvale
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 the 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 of Millvale shall review such information and either grant or deny a construction permit within 20 business days. If the Borough of Millvale fails to grant or deny the construction permit within such time period, the permit shall be deemed granted. In each such case, the Borough of Millvale 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 of Millvale may impose conditions on the construction permit regulating the times, locations and manner of construction to preserve the effective traffic flow, prevent hazardous road conditions, and/or minimize noise impacts.
A.
Each new applicant for a right-of-way shall include with its application
an application fee in an amount as set by resolution of the Borough
Council. This fee is directly related to the Borough of Millvale's
costs in reviewing the application (excluding expert costs) and managing
and 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 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.[1]
B.
Each existing permit holder applying for a renewal of its right-of-way
permit shall include with its application an annual fee in an amount
as set by resolution of the Borough Council. This fee is directly
related to the Borough of Millvale'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.[2]
C.
Each applicant for a construction permit shall include with its application
an application fee in an amount as set by resolution of the Borough
Council. This fee is directly related to the Borough of Millvale'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 of Millvale's
actual costs based on the hourly rate established by the resolution
of the Borough Council. Such actual costs include, but are not limited
to, costs of disruption and rerouting traffic, inspection costs, and
administrative costs.[3]
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 of Millvale as a result of the permit holder's
use of the rights-of-way, provided that the Borough of Millvale notifies
the permit holder of the expected expenses prior to them being incurred
and provides the permit holder with an opportunity to mitigate such
expenses. Examples of extraordinary or unusual costs include, but
are not limited to, the cost of obtaining and operating a backhoe,
dump truck, or other heavy equipment used to repair the right-of-way,
overtime or special pay for police officers or other emergency services.
The statement of such expenses presented to the permit holder shall
be directly related to the Borough of Millvale'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 later 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 of Millvale's right to suspend or terminate the permit
accordingly to the terms of this chapter.
A.
The Borough of Millvale 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 of Millvale shall consider requests for occupying and
using the rights-of-way in the order of receipt of fully completed
applications for rights-of-way permits. The Borough of Millvale 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 the public safety as it
relates to the right-of-way.
B.
The Borough of Millvale shall have the right to monitor the telecommunications
systems and the equipment related thereto located in the right-of-way
in order to prevent interference between and among such systems and
equipment.
C.
A permit holder shall allow the Borough of Millvale 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 will 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 of Millvale 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 the Borough of Millvale property
in the right-of-way, the permit holder shall restore such a 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 of Millvale.
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 of Millvale. 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 of Millvale 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 of Millvale, 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 of Millvale in which it is claimed that personal injury, including
death, or property damage 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, attorney's
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
of Millvale harmless for claims caused by the Borough of Millvale's
negligence, gross negligence or willful misconduct.
B.
A permit holder shall at all times during the life of the 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 of Millvale as set
forth in the permit. A permit holder shall name the Borough of Millvale
as an additional insured on its liability insurance policies. All
required insurance coverage shall provide for 30 days' notice
to the Borough of Millvale 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 of Millvale, upon
application 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, permit holder shall so inform
the Borough of Millvale.
B.
A permit holder shall submit to the Borough of Millvale such reasonable
information directly related to the permit holder's use and occupation
of the rights-of-way as the Borough of Millvale may request. All information
provided to the Borough of Millvale shall be maintained by the Borough
of Millvale 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 Millvale.
A right-of-way permit may be transferred or assigned, upon 30
days written notice to the Borough of Millvale, provided that the
transferee/assignee agrees in writing to comply with all the obligations
and requirements contained in this chapter.
A permit holder may be required, prior to construction, to obtain
a performance bond in a reasonable amount set by the Borough of Millvale
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 Millvalle
may reduce or cancel the bond requirement when construction is complete.
A.
In addition to all other rights and powers reserved by the Borough
of Millvale, the Borough of Millvale 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 provisions of the permit or this chapter;
(2)
A permit holder becomes insolvent, unable or unwilling to pay its
debts, or is adjudged bankrupt;
(3)
All or part of the 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 Millvale under the
permit;
(5)
The Borough of Millvale condemns all of the property of a permit
holder within the Borough of Millvale by the lawful exercise of eminent
domain; or
(6)
The permit holder abandons the telecommunications system.
B.
No termination shall be effective unless and until the Borough of
Millvale shall have adopted a resolution setting forth the cause and
reason for their 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 of Millvale may deem any property
not removed as abandoned and the Borough of Millvale may remove it
at the former permit holder's expense. In the event that the
permit holder installed and/or operated any underground conduit or
pipe which is six inches or more in diameter, permit holder shall
fill said conduit or pipe with material in a manner satisfactory to
the Borough of Millvale.
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 of Millvale 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 of Millvale 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 of
Millvale may remove it at the permit holder's expense.
If the Borough of Millvale has reason to believe that the permit
holder violated any of the terms of this chapter, it shall notify
the permit holder in writing of the nature of the violation and the
section of this chapter 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 of Millvale 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 not more than $1,000, plus court costs and reasonable
attorneys' fees incurred by the Borough in the enforcement proceedings.
Upon judgment against any person by summary conviction, or by proceedings
by summons on default of the payment of the fine or penalty imposed
and the costs, the defendant may be sentenced and committed to the
Borough lockup for a period not exceeding 10 days or to the county
jail for a period not exceeding 30 days. Each day or portion thereof
that such violation continues or is permitted to continue shall constitute
a separate offense, and each section of this chapter that is violated
shall also constitute a separate offense.
The Borough of Millvale, by granting any permit under this chapter,
does not waive, lessen, impair or surrender the lawful police powers
vested in the Borough of Millvale under applicable federal, state
and local laws pertaining to the regulation or use of the rights-of-way.
The provisions of this chapter shall be imposed upon and enforced
against all persons requiring a permit from the Borough of Millvale.