[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.
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.
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 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.
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.
The services involving the transmission of video, data and/or voice
communications and/or content, both active and interactive, and associated
usage.
All equipment that is located wholly or partially underground underneath
a right-of-way.
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.
A.
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.
B.
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.
C.
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.
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.
B.
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.
C.
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.
A.
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:
(1)
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.
(2)
The permit holder or the permit holder's equipment
in the right-of-way has had a detrimental effect on public safety as it relates
to the rights-of-way.
(3)
The permit holder failed to pay any of the fees required
under this chapter.
B.
If 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.
C.
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.
A.
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.
B.
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.
A.
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.
B.
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.
C.
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.
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 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.
E.
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.
A.
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.
B.
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.
C.
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.
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., 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.
B.
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.
C.
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.
D.
Except in the case of an emergency, at least three days
prior to the commencement of any construction activity, the permit holder
shall notify nearby residents of such construction activity which is satisfactory
to Marple Township. 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
Marple Township, following accepted industry construction procedures and practices.
F.
All wires, cables and other equipment shall be installed,
where possible, parallel with electric and telephone lines, and multiple cable
configurations shall be arranged in parallel and bundles with due respect
for engineering considerations.
G.
All wires, cables and other equipment shall be installed
underground where required by municipal ordinance or regulation consistent
with the same requirement being imposed on all other similarly situated companies,
including public utilities.
A.
A permit holder shall, at its sole cost and expense,
indemnify and hold harmless 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.
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 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.
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.
B.
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.
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.
B.
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.
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.
B.
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.
A permit holder fails, after 30 days' prior written
notice, to comply with any of the material provisions or the permit of this
chapter.
B.
A permit holder becomes insolvent, unable or unwilling
to pay its debts, or is adjudged bankrupt.
C.
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.
D.
A permit holder attempts to or does practice any fraud
or deceit in its conduct or relations within Marple Township under the permit.
E.
Marple Township condemns all of the property of a permit
holder within Marple Township by the lawful exercise of eminent domain.
F.
The permit holder abandons the telecommunications system
or other equipment.
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, 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.
B.
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.[1]
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.
