[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.
