[HISTORY: Adopted by the Board of Commissioners of the Township of Marple 1-8-2007 by Ord. No. 2007-3. Amendments noted where applicable.]
Unless the context specifically indicates otherwise, the meaning of the terms used in this chapter, whether or not capitalized, shall be as follows:
- The person who has applied for a right-of-way permit or a construction permit.
- The form prescribed by Marple Township which the applicant must complete in order to obtain a right-of-way permit.
- 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. When the construction activities (including maintenance and repair of equipment or extension of a single line from equipment in a right-of-way) include drilling, boring, driving or tunneling or trenching under, across or through any improved right-of-way, all work (including restoration as set forth in this chapter) shall be done in accordance with the standards and provisions set forth in 67 Pa. Code § 459.8, as amended. Likewise, any aboveground construction shall be in accordance with 67 Pa. Code § 459.9. All references in foregoing Code sections to the District Office, the Department of Transportation or similar references shall be deemed to be references to Marple Township.
- CONSTRUCTION PERMIT
- 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 work to be performed or any tangible property located or proposed to be located in a right-of-way whether temporary or permanent, including, but not limited to, wires, lines, cables, conduits, pipes, supporting structures (including telecommunications systems) or other facilities.
- When used in conjunction with "right-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.
- PERMIT HOLDER
- The person obtaining a right-of-way permit.
- Any individual, firm, partnership, association, corporation, company or other business entity.
- RESTORE or RESTORATION
- The process by which a right-of-way is returned to a state that is as good as or better than its condition before construction. (See the reference to 67 Pa. Code § 459.8 under "construction," above.)
- The surface and space in, on, above and below any real property in which Marple Township 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.
- RIGHT-OF-WAY PERMIT or PERMIT
- A written authorization granted by Marple Township to an applicant for use of the rights-of-way in Marple Township for wires, lines, cables, conduits, pipes, supporting structures and other facilities.
- TELECOMMUNICATIONS SERVICES
- The services involving the transmission of video, data and/or voice communications and/or content, both active and interactive, and associated usage.
- TELECOMMUNICATIONS SYSTEM
- A system used or to be used to provide telecommunication services, and where permitted by the Marple Township Zoning Ordinance, shall also include towers, cellular and wireless towers, facilities and equipment as defined in § 300-110 therein.
- UNDERGROUND EQUIPMENT
- All equipment that is located wholly or partially underground underneath a right-of-way.
- ZONING ORDINANCE
- The official Zoning Ordinance of Marple Township, as may be amended from time to time, in effect on the date of submission of an application.
No person shall enter upon or occupy any right-of-way for the purpose of installing, constructing, maintaining or operating any equipment in a right-of-way without first having obtained a right-of-way permit. Any person maintaining or operating a telecommunications system in a right-of-way as of the effective date of this chapter shall also obtain a right-of-way permit.
Before a right-of-way permit is issued, the holder or applicant for a right-of-way permit shall have applied for any and all regulatory approvals, permits or authorizations from the appropriate federal, state and local authorities, if required. The applicant shall submit written evidence of its receipt of all such approvals, permits or authorizations.
Nothing in this chapter shall be construed as a waiver of any ordinance or regulations of Marple Township'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, and nothing herein shall be construed as permission or authorization to establish telecommunications systems in any right-of-way in contravention of the provisions of the Zoning Ordinance.
A right-of-way permit shall only be granted after an applicant has completed an application, and provided such information which Marple Township may reasonably require. Upon request, an applicant shall be provided with a copy of the then current application for a right-of-way permit. The applicant shall provide information regarding the applicant's proposed or actual physical use and occupation of the right-of-way. Specifically, the applicant shall provide 1) a brief description of the Telecommunications Service or services to be offered or provided in or through Marple Township, if applicable; 2) specific information regarding the equipment it proposes to place or currently maintains in the rights-of-way; and 3) 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, Marple Township may require 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.
Upon submission of a fully completed application to Marple Township and the accompanying fee and such other information as Marple Township may require, Marple Township shall review the application as follows: For new applicants, Marple Township shall grant or deny such applications within 30 business days. For existing permit holders applying for a renewal of their permits who are not under suspension in accordance with § 224-4 below, Marple Township shall grant or deny such applications within 15 business days. If Marple Township fails to grant or reject such application within the time periods specified above, the application shall be deemed approved. In each case, Marple Township 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.
In considering an application, Marple Township may use such outside experts as it deems necessary. In the event Marple Township deems it necessary to employ an outside expert to advise the municipality with respect to a particular application, the reasonable cost of such expert shall be borne by the applicant.
The right-of-way permit shall be issued for a period of one year. Permit holders shall apply for a renewal for a right-of-way permit at least 30 days prior to its expiration. Marple Township may suspend such right-of-way permit in the event any one or more of the following has occurred:
The permit holder shall have caused damage to Marple Township property or the right-of-way without the prior consent of Marple Township (except in the case of an emergency) and without completing proper restoration.
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.
The permit holder failed to pay any of the fees required under this chapter.
The permit holder failed to comply with construction standards in accordance with the provisions contained in § 224-8 below.
If Marple Township 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 Marple Township reasonably determines that the event is an emergency, in which case Marple Township may impose a shorter time period to cure the violation.
If the permit holder fails to cure the violation within the specified time period, Marple Township shall be permitted to immediately suspend the right-of-way permit. A suspension shall be brought to the attention of the Board of Commissioners at its next regularly scheduled meeting, at which time the Board of Commissioners shall be permitted to uphold or withdraw the suspension. The permit holder shall be provided an opportunity to be heard at such meeting.
Except in the case of an emergency, before commencing any construction in the right-of-way, a person shall submit to Marple Township 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.
Upon submission of all such information required in Subsection A above, Marple Township shall review such information and either grant or deny a construction permit within 30 days. If Marple Township fails to grant or deny the construction permit within such time period, the permit shall be deemed granted. In each such case, Marple Township 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. Marple Township may impose conditions on the construction permit regulating the times, locations, and manner of construction to preserve effective traffic flow, prevent hazardous road and other conditions and/or minimize noise impacts.
Each new applicant for a right-of-way permit shall include with its application an application fee as determined and set by the Board of Commissioners, from time to time, by resolution. This fee shall be directly related to Marple Township'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.
Each existing permit holder applying for a renewal of its right-of-way permit shall include with its application an annual fee as determined and set by the Board of Commissioners, from time to time, by resolution. 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.
Each applicant for a construction permit shall include with its application an application fee as determined and set by the Board of Commissioners, from time to time, by resolution. 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, Marple Township's actual costs based on the hourly rate established by resolution of the Board of Commissioners. Such actual costs include, but are not limited to, costs of disruption and the rerouting of traffic, inspection costs and administrative costs.
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 Marple Township as a result of the permit holder's use of the rights-of-way, provided that Marple Township 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 Marple Township's actual costs.
Acceptance of payment under this section shall not in any way limit or waive Marple Township's right to suspend or terminate the permit according to the terms of this chapter.
Marple Township 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. Marple Township 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. Marple Township 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.
Marple Township shall have the right, but not the obligation, to monitor the use of any equipment or activity related thereto located in the rights-of-way.
A permit holder shall allow Marple Township to make inspections of any part of the permit holder's equipment located in the rights-of-way at any time upon three days' notice or, in case of an emergency, upon demand.
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., as may be amended from time to time. Each permit holder shall perform construction activity in a manner consistent and in compliance with the detailed plans it submitted to Marple Township and all applicable federal, state and local laws and regulations.
Whenever a permit holder or any of its subcontractors shall cause damage to the right-of-way or to Marple Township's property in the right-of-way, the permit holder shall restore such right-of-way or property within 10 days, weather permitting.
The equipment shall not endanger or interfere with the safety of persons or property within Marple Township. 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 any equipment so that conditions which could develop into safety hazards shall be corrected before they become a hazard.
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 which is satisfactory to Marple Township. The name of the permit holder shall be clearly disclosed to such residents.
All construction activity shall be performed in an orderly and workmanlike manner and in close coordination with public utilities serving Marple Township, following accepted industry construction procedures and practices.
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.
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 permit holder shall, at its sole cost and expense, indemnify and hold harmless Marple Township, 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 Marple Township 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 municipality harmless for claims caused by the Marple Township's negligence, gross negligence or willful misconduct.
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 Marple Township as set forth in the permit. A permit holder shall name Marple Township as an additional insured on its liability insurance policies. All required coverage shall provide for 30 days' notice to Marple Township in the event of material alteration or cancellation of such coverage prior to the effective date of such material alteration or cancellation.
A permit holder shall annually provide Marple Township, 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 Marple Township. The permit holder may submit the required information in an electronic format.
A permit holder shall submit to Marple Township such reasonable information directly related to the permit holder's use and occupation of the rights-of-ways as Marple Township may request.
A right-of-way permit may be transferred or assigned, upon 30 days' prior written notice to Marple Township, provided that the transferee/assignee agrees in writing to comply with all the obligations and requirements contained in this chapter.
Notwithstanding the foregoing, nothing in this chapter shall create or be construed as granting any applicant or permit holder any interest in real property, nor shall the issuance of any permit be so construed.
A permit holder shall be required, prior to construction, to file with the Township a bond in acceptable form, running in favor of the Township, to guarantee the permit holder's obligations under this chapter. The amount of the bond shall be based on the construction costs of the equipment to be installed in the rights-of-way, the extent of the disturbance of such rights-of-way and shall be no less than the cost of removal of the facilities authorized by the permit or such other amount as reasonably specified by the Township. In the event that a permit holder subject to a bond fails to complete construction, upgrade or other work in the public rights-of-way in a safe, timely and competent manner and in accordance with the provisions of this chapter, it shall be recoverable, jointly and severally, from the principal and surety of the bond, any damages or loss suffered by the Township as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the permit holder or the cost of completing or repairing any work or damage in the rights-of-way, plus reasonable allowance for attorneys' fees, up to the full amount of the bond. Before seeking recovery under the bond, the Township shall provide the permit holder reasonable notice and opportunity to cure.
The rights reserved by the Township with respect to any bond established pursuant to this subsection are in addition to all of the rights and remedies the Township may have under this chapter or at law or equity.
In addition to all other rights and powers reserved by Marple Township, Marple Township reserves the right to terminate a permit and all rights and privileges of a permit holder for any of the following reasons:
A permit holder fails, after 30 days' prior written notice, to comply with any of the material provisions or the permit of this chapter.
A permit holder becomes insolvent, unable or unwilling to pay its debts, or is adjudged bankrupt.
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.
A permit holder attempts to or does practice any fraud or deceit in its conduct or relations within Marple Township under the permit.
Marple Township condemns all of the property of a permit holder within Marple Township by the lawful exercise of eminent domain.
The permit holder abandons the telecommunications system or other equipment.
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, Marple Township may deem any property not removed as abandoned, and Marple Township 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 Marple Township.
During the term of the permit, if the permit holder decides to abandon or no longer use all or part of its equipment, it shall provide Marple Township with written notice of its decision at least 30 days prior to such decision, which notice shall describe the equipment and its location. Marple Township 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, Marple Township may remove it at the permit holder's expense.
If Marple Township 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, Marple Township 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 $300 per day until the violation is cured.
Marple Township, by granting any permit under this chapter, does not waive, lessen, impair or surrender the lawful police powers vested in Marple Township under applicable federal, state and local laws pertaining to the regulation or use of the rights-of-way. In addition, nothing herein shall be considered to authorize or grant permission to any applicant to install or locate telecommunications systems or other equipment in any rights-of-way, unless the same is expressly permitted by the Zoning Ordinance and the applicant has first secured the necessary zoning permit(s) required under the Zoning Ordinance.
The provisions of this chapter shall be imposed and enforced against all persons requiring a permit from Marple Township, provided, however, that where any other ordinance of Marple Township requires a person to obtain a permit, duplication of such permit shall not be required under this chapter.