[Ord. 725, passed 8-4-2008]
This chapter shall apply to all communications services providers governed by § 253 of the Telecommunications Act of 1996 which desire to have access to the Borough public rights-of-way.
[Ord. 725, passed 8-4-2008]
This chapter is designed to enable the Borough to effectively respond to requests by communications services providers for access to the Borough's public rights-of-way, to manage the Borough's public rights-of-way and to obtain limited compensation from those seeking access to the Borough's public rights-of-way.
[Ord. 725, passed 8-4-2008]
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
The permanent cessation of all uses of a communications facility; provided that this term shall not include cessation of all use of a facility within a physical structure where the physical structure continues to be used. By way of example, and not limitation, cessation of all use of a cable within a conduit, where the conduit continues to be used, shall not be ABANDONMENT of a facility in public rights-of-way.
The Borough of Brookhaven.
Any permanent or temporary plant, equipment and property, including but not limited to cables, wires, conduits, ducts, fiber optics, poles, antennas, converters, splice boxes, cabinets, hand holes, manholes, vaults, drains, surface location markers, appurtenances and other equipment or pathway placed or maintained or to be placed or maintained in the public rights-of-way of the Borough and used or capable of being used to transmit, convey, route, receive, distribute, provide or offer communication services.
The transmission, conveyance or routing of voice, data, audio, video or any other information or signals to a point, or between or among points, by or through any electronic, radio, satellite, cable, optical, microwave or other medium or method now in existence or hereafter devised, regardless of the protocol used for each transmission or conveyance. Notwithstanding the foregoing, for purposes of this chapter cable service is not included in the definition of "communications services" and cable service providers are subject to other ordinances of the Borough.
Any person including a municipality or county providing communications services through the placement or maintenance of a communications facility in public rights-of-way. This term shall also include any person including a municipality or county that places or maintains a communications facility in the public rights-of-way but does not provide communications services.
In, on, over, under or across the public rights-of-way.
This chapter.
Any authorization for use of the public rights-of-way granted in accordance with the terms of this chapter, and the laws of the Borough.
Includes any individual, children, firm, association, joint venture, partnership, estate, trust, business trust, syndicate, fiduciary, corporation, organization or legal entity of any kind, successor, assignee, transferee, personal representative, and all other groups or combinations, and shall include the Borough to the extent the Borough acts as a communications services provider.
To erect, construct, install, maintain, place, repair, extend, expand, remove, occupy, locate or relocate. A communications services provider that owns or exercises physical control over communications facilities in the public rights-of-way, such as the physical control to maintain and repair, is "placing or maintaining" the facilities. A person providing service only through resale or only through the use of a third party's unbundled network elements is not "placing or maintaining" the communications facilities through which such service is provided. The transmission and receipt of radio frequency signals through the airspace of the public rights-of-way does not constitute "placing or maintaining" facilities in the public rights-of-way.
A public right-of-way, public utility easement, highway, street, bridge, runnel or alley for which the Borough is the authority that has jurisdiction and control and may lawfully grant access to pursuant to applicable law, and includes the surface, the air space over the surface and the area below the surface. "Public rights-of-way" shall not include private property. "Public rights-of-way" shall not include any real or personal Borough property except as described above and shall not include Borough buildings, fixtures, poles, conduits, facilities or other structures or improvements, regardless of whether they are situated in the public rights-of-way.
[Ord. 725, passed 8-4-2008]
(A)
A communications services provider which desires to have access to the Borough's public rights-of-way must first obtain a right-of-way permit from the Borough. The permit application shall be accompanied by a nonrefundable application fee of $250 and must include the following information:
(1)
Descriptions of the proposed communications services and the equipment proposed to be installed in the public rights-of-way;
(2)
Any physical burden the equipment will place on the public rights-of-way;
(3)
Whether the equipment will have a detrimental effect on public safety in the public rights-of-way;
(4)
Copies of authorizations from appropriate federal and state agencies and, if applicable, documentation granting the applicant the right to attach its equipment to utility poles;
(5)
Proof of insurance coverage as required by this chapter;
(6)
A plan showing the proposed location of all equipment and wires and protection of the subject property and adjacent properties;
(7)
A copy of the applicant's certificate of authorization or license to provide communications services issued by the Pennsylvania Public Utility Commission, the Federal Communications Commission or other federal or state authority;
(8)
For an applicant that cannot provide a Pennsylvania Public Utility Commission certificate of authorization, proof of authority to do business in the Commonwealth;
(9)
An acknowledgment that applicant has received and reviewed a copy of this chapter;
(10)
A satisfactory plan for the protection of existing landscaping acceptable to the Borough, when the Borough determines that damage may occur; and
(11)
Include a satisfactory traffic control and erosion protection plan for the proposed construction, excavations, or work.
(B)
The Borough may retain outside experts to review permit applications as it deems necessary.
(C)
Once granted, a right-of-way permit shall be valid for one year from date of issuance. The permit fee shall be paid for each annual renewal of the permit.
(D)
A right-of-way permit does not convey any title, equitable or legal to the applicant in the public rights-of-way. The permit process under this chapter governs only the placement or maintenance of communications facilities in public rights-of-way. Other ordinances, codes or regulations may apply to the placement or maintenance in the public rights-of-way of facilities that are not communications facilities. Permits do not excuse a communications services provider from obtaining appropriate access or pole attachment agreements before locating its facilities on the Borough's or another person's facilities. Permits do not excuse a communications services provider from complying with all applicable Borough ordinances, codes or regulations, including this chapter.
(E)
Permits shall be void if work has not commenced six months after issuance, unless an extension has been granted by the Borough.
[Ord. 725, passed 8-4-2008]
An applicant who has been granted a right-of-way permit by the Borough shall comply with the following construction safety standards in installing, repairing, maintaining and removing equipment from the Borough's public rights-of-way.
(A)
Construction workers must be certified and/or trained in the safe use of all construction equipment.
(B)
The applicant shall routinely inspect work sites so that conditions that could develop into safety hazards are corrected in a timely fashion.
(C)
Aerial wires and equipment shall be of material, size and configuration as approved by the FCC and as required by applicable ICC Codes, including but not limited to, the National Electrical Safety Code.
(D)
Underground wires and equipment shall be of a material, size and configuration as governed by current PennDot Publication 408, NEC, and as required by applicable ICC Codes, including but not limited to, the National Electrical Safety Code.
(E)
The applicant shall provide Borough property owners within a 100-foot radius with twenty-four-hour notice prior to the commencement of any construction activity.
(F)
Construction activity may not interrupt the services of other telecommunications companies or entities using the Borough's public rights-of-way.
(G)
Construction activity shall be conducted in accordance with all other applicable laws, ordinances and regulations.
(H)
All safety practices required by applicable law or accepted industry practices and standards shall be used during the placement or maintenance of communications facilities.
[Ord. 725, passed 8-4-2008]
(A)
All communications facilities shall be placed or maintained so as not to unreasonably interfere with the use of the public rights-of-way by the public and with the rights and convenience of property owners who adjoin any of the public rights-of-way. The use of trenchless technology (i.e., directional bore method) for the installation of facilities in the public rights-of-way as well as joint trenching or the co-location of facilities in existing conduit is strongly encouraged and should be employed wherever feasible.
(B)
When required by general ordinances, resolutions, regulations or rules of the Borough or applicable state or federal law, the facilities shall be placed underground at no cost to the Borough. In areas where existing facilities are aerial, the provider may install aerial facilities.
(C)
The Borough reserves the right to require an applicant to find alternative locations in the Borough's public rights-of-way for its wires and equipment in the event that physical space for the placement of such equipment and wires is limited. All requests for locations within the Borough's public rights-of-way will be accommodated by the Borough in the order of receipt and will be guided by the physical conditions of the rights-of-way.
(D)
Upon request of the Borough and as notified by the Borough of the other work, construction, installation or repairs referenced below, a provider may be required to coordinate placement or maintenance activities under a permit with any other work, construction, installation or repairs that may be occurring or scheduled to occur within a reasonable timeframe in the subject public rights-of-way, and provider may be required to reasonably alter its placement or maintenance schedule as necessary so as to minimize disruptions and disturbance in the public rights-of-way.
(E)
A provider shall not place or maintain its facilities so as to interfere with, displace, damage or destroy any facilities, including but not limited to, sewers, gas or water mains, storm drains, pipes, cables or conduits of the Borough or any other person's facilities lawfully occupying the public rights-of-way of the Borough.
(F)
Borough makes no warranties or representations regarding the fitness, suitability or availability of Borough's public rights-of-way for the provider's communications facilities and any performance of work, costs incurred or services provided by provider shall be at provider's sole risk. Nothing in this chapter shall affect the Borough's authority to add, vacate or abandon public rights-of-way, and Borough makes no warranties or representations regarding the availability of any added, vacated or abandoned public rights-of-way for communications facilities.
(G)
The Borough shall have the right to make such inspections of communications facilities placed or maintained in public rights-of-way as it finds necessary to ensure compliance with this chapter.
(H)
The Borough reserves the right to place and maintain, and permit to be placed or maintained, sewer, gas, water, electric, storm drainage, communications and other types of facilities, cables or conduit, and to do, and to permit to be done, any underground and overhead installation or improvement that may be deemed necessary or proper by the Borough in the public rights-of-way occupied by provider. The Borough further reserves the right to alter, change, or cause to be changed, the grading, installation, relocation, or width of the public rights-of-way within the limits of the Borough and within said limits as same may from time to time be altered.
(I)
Provider shall, on the request of any person holding a permit issued by the Borough, temporarily raise or lower its communications facilities to permit the work authorized by the permit. The expense of such temporary raising or lowering of facilities shall be paid by the person requesting the same, and the provider shall have the authority to require such payment in advance. The provider shall be given not less than 30 days' advance written notice to arrange for such temporary relocation.
[Ord. 725, passed 8-4-2008]
(A)
Following installation, a provider shall, at its own expense, make temporary restoration of the public rights-of-way. Provider must permanently restore the public rights-of-way, to its original condition before such work, in accordance with PennDot Form 408 within 90 and 120 days, weather permitting. Provider shall provide seven days' prior written notice to the Borough prior to the start of any restoration work. If the provider fails to make such restoration within such time frames, or such longer period of time as may be reasonably required under the circumstances, following the completion of such placement or maintenance, the Borough may perform such restoration and charge the costs of such restoration against provider. For 12 months following the original completion of the work, the provider shall guarantee its restoration work and shall correct any restoration work that does not satisfy the requirements of this chapter at its own expense.
(B)
Prior to the issuing a permit where the work under the permit will require restoration of public rights-of-way, the Borough may require a construction bond to secure the restoration of the public rights-of-way. The construction bond shall be issued by a surety having a rating reasonably acceptable to the Borough; shall be subject to the approval of the Borough; and shall provide that: "for 12 months after issuance of this bond, this bond may not be canceled, or allowed to lapse, until 60 days after receipt by the Borough, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew." The rights reserved by the Borough with respect to any construction bond established pursuant to this section are in addition to all other rights and remedies the Borough may have under this chapter, or at law or equity.
[Ord. 725, passed 8-4-2008]
The Borough shall have the right to require an applicant whose permit has expired or been terminated to remove any equipment and wires which the applicant has installed in or along the Borough's public rights-of-way at the applicant's expense. Failure to comply with a removal request within 60 days of request shall be a violation of this chapter subject to the penalties set forth herein.
[Ord. 725, passed 8-4-2008]
(A)
When it is necessary to obstruct traffic, a traffic control plan shall be submitted to the Borough prior to starting construction. No permit will be issued until the plan is approved by the Borough. No provider shall block access to and from private property, block emergency vehicles, block access to fire hydrants, fire stations, fire escapes, water valves, underground vaults, valve housing structures or any other vital equipment unless the provider provides the Borough with written verification of written notice delivered to the owner or occupant of the facility, equipment or property at least 48 hours in advance. If a street closing is desired, the applicant will request the assistance and obtain the approval of the Borough. It shall be the responsibility of the provider to notify and coordinate all work in the public way with police, fire, ambulance, other government entities and transit organizations.
(B)
When necessary for public safety, the provider shall employ flag persons whose duties shall be to control traffic around and through the construction site and shall be accomplished in accordance with PennDot Publication 213, latest edition. The use of flag persons may be required by the Borough.
(C)
Unless approved by the Borough, the provider shall not impede rush hour traffic on arterial or collector streets during the morning or evening rush hours. No construction shall be performed nor shall any traffic lane be closed to traffic during the hours of 7:00 a.m. to 9:00 a.m. or 3:30 p.m. to 6:00 p.m. without the prior approval of the Borough.
(D)
Traffic control devices, as defined by PennDot, must be used whenever it is necessary to close a traffic lane or sidewalk. Traffic control devices are to be supplied by the provider. If used at night, they must be reflectorized and must be illuminated or have barricade warning lights.
[Ord. 725, passed 8-4-2008]
(A)
As an express condition for the granting of a right-of-way permit, the applicant, for itself and its related entities, agents, employees, subcontractors and the agents and employees of said subcontractors shall indemnify, defend and hold harmless the Borough, its successors, assigns, officers, employees, agents, and elected and appointed officials from and against any and all claims or liability, including claims for personal injury, property damage or death, arising from or in connection with the applicant's use of the Borough's public rights-of-way.
(B)
The terms of each contract awarded by the provider for activities pursuant to a permit shall contain indemnity provisions whereby the contractor shall indemnify the Borough to the same extent as described above.
[Ord. 725, passed 8-4-2008]
(A)
Prior to the commencement of any work in the Borough's public rights-of-way under a permit, the applicant shall provide to the Borough evidence of insurance coverage to the Borough to address any potential injuries or damage arising from the applicant's work in and use of the Borough's public rights-of-way.
(B)
Such insurance shall include:
(1)
A commercial general liability policy, including broad form property damage, for limits not less than $1,000,000 each occurrence for damages of bodily injury or death to one or more persons and $500,000 each occurrence for damage to or destruction of property; and
(2)
Workers' compensation insurance as required by state law. The applicant's policy of insurance shall name the Borough as an additional insured under the policy and shall provide that the Borough shall receive 30 days' written notice prior to cancellation or termination of the policy.
[Ord. 725, passed 8-4-2008]
If a communications services provider transfers, sells or assigns its assets located in public rights-of-way incident to a transfer, sale or assignment of the provider's assets, the transferee, buyer or assignee shall be obligated to comply with the terms of this chapter. Written notice of any such transfer, sale or assignment shall be provided by such provider to the Borough within 20 days after the effective date of the transfer, sale or assignment. If the transferee, buyer or assignee holds a current permit under this chapter, then the transferee, buyer or assignee is not required to re-register. If the transferee, buyer or assignee is not a current permit holder then the transferee, buyer or assignee shall apply for a permit as provided in § 1050.04 within 60 days of the transfer, sale or assignment.
[Ord. 725, passed 8-4-2008]
Any permit granted under this chapter shall serve only to give the applicant access to the Borough's public rights-of-way. An applicant and anyone performing work for an applicant shall have a continuing obligation to apply for and to obtain other permits required under the Borough's ordinances and codes and any other applicable law or regulation for the performance of work in the Borough's public rights-of-way.
[Ord. 725, passed 8-4-2008]
(A)
In the event that any provision of this chapter is violated by a communications services provider, the Borough may impose any one or more of the following penalties:
(1)
Fines equal to $500 per day the violation continues in the event that the communications services provider fails to correct any violation within 10 days of receipt of written notice thereof by the Borough;
(2)
Suspension of the permit until violations are corrected; and
(3)
Termination of the permit for serious violations such as fraud or abandonment of the equipment.
(B)
Failure of the Borough to enforce any requirements of this chapter shall not constitute a waiver of the Borough's right to enforce that violation or subsequent violations of the same type or to seek appropriate enforcement remedies.
[Ord. 725, passed 8-4-2008]
(A)
Upon abandonment of a communications facility owned by provider in public rights-of-way, the provider shall notify the Borough within 90 days.
(B)
The Borough may direct the provider by written notice to remove all or any portion of such abandoned facility at the provider's sole expense if the Borough determines that the abandoned facility's presence interferes with the public health, safety or welfare, which shall include, but shall not be limited to, a determination that such facility:
(1)
Compromises safety at any time for any public right-of-way user or during construction or maintenance in public rights-of-way;
(2)
Prevents another person from locating facilities in the area of public rights-of-way where the abandoned facility is located when other alternative locations are not reasonably available; or
(3)
Creates a maintenance condition that is disruptive to the public rights-of-way's use. In the event of Division (B)(2) hereof, the Borough may require the third person to coordinate with the provider that owns the existing facility for joint removal and placement, where agreed by the provider.
(C)
In the event the Borough does not direct the removal of the abandoned facility, the provider, by its notice of abandonment to the Borough shall be deemed to consent to the alteration or removal of all or any portion of the facility by the Borough or another person at such third party's cost.
(D)
If the provider fails to remove all or any portion of an abandoned facility as directed by the Borough within a reasonable time period as may be required by the Borough under the circumstances, the Borough may perform such removal and charge the cost of the removal against the provider.