[Adopted 3-19-2001 by Ord. No. 618 (Ch. 21, Part 10, of the 1978 Code
of Ordinances)]
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 Borough of Fox Chapel.
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, on or under a right-of-way.
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 state
that is as good or better as its condition before construction.
The surface and space in, on, above and below 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, parkway, river, tunnel,
viaduct, bridge, park, green space or any other place.
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 telecommunications
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 or other service or utility requiring access to the right-of-way
without first having obtained a right-of-way permit. Any person maintaining
or operating a telecommunications system or other service or utility
requiring access to the right-of-way as of the effective date of this
article shall also obtain a right-of-way permit.[1]
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 Fox Chapel 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: 1) a brief description of the telecommunications service
or other service requiring access to the right-of-way to be offered
or provided in or through the Borough; 2) specific information regarding
the equipment it proposes to place or currently maintains in the rights-of-way;
3) the expected physical burden that such equipment will place or
does place on the rights-of-way; and 4) 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 Fox Chapel Borough
and the accompanying fee, the Borough shall review the application
as follows. The Borough shall grant or deny such application within
45 days. If the Borough fails to grant or reject such application
within the time period 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 the Borough deems it necessary
to employ an outside expert to advise the Borough 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 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 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 30 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 Fox Chapel 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 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 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, the Borough shall review such information and either grant or deny a construction permit within 45 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 as set from time to time by Borough
Council. This fee 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 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 a renewal application fee
as set from time to time by Borough Council. This fee 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.[2]
C.
Each applicant for a construction permit shall include with its application
an application fee as set from time to time by the Borough Council.
This fee 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 of the person or persons reviewing the application and any directly
associated costs. Such actual costs include, but are not limited to,
costs of disruption and rerouting of 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 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 ten-percent 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
system 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 will fully comply by
registering with Pennsylvania's "One-Call" system pursuant to
73 P.S. § 176 et seq. Such permit holder shall provide the
Borough with GPS information showing planned locations and reference
points for equipment to be installed. 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
30 days, weather permitting, in accordance with the Borough's
restoration requirements.
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, 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 Borough 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 Fox Chapel 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 Fox Chapel Borough as an additional insured
on its liability insurance policies. All required insurance coverage
should 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 Fox Chapel
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 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 the permit holder
and an opportunity for the permit holder to be heard before 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. In
the event that the permit holder installed and/or operated any underground
conduit or pipe which is six inches or more in diameter, the permit
holder shall fill said conduit or pipe with material in a manner satisfactory
to the Borough.
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 $100 per day until the violation is cured.
Fox Chapel 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.