[HISTORY: Adopted by the Board of Supervisors
of the Township of West Deer as indicated in article histories. Amendments
noted where applicable.]
[Adopted 8-16-2006 by Ord. No. 350]
The purpose of this Right-of-Way Article (hereinafter
referred to as "the article") is to:
A.
Assist West Deer Township (hereinafter referred to
as "the Township") in managing its public rights-of-way with respect
to telecommunications services providers in accordance with applicable
law;
B.
Regulate the erection, construction, reconstruction,
installation, operation, maintenance, repair and removal of a telecommunications
system in, upon, along, across, above, over, under or in any manner
connected with the public rights-of-way, of the Township, as now or
in the future may exist; and
C.
Provide the Township with appropriate compensation
for occupation and use of the Township's rights-of-way for a telecommunications
system and for the cost of regulating providers of telecommunications
services on a competitively neutral and nondiscriminatory basis consistent
with this article and applicable law.
A.
The Township Manager, or the Township Manager's designated
representative, shall serve as the single point of contact within
the Township for all persons regulated under this article.
B.
The Township Manager shall coordinate all contacts
with other Township departments as necessary to facilitate issuance
of any and all permits required by the West Deer Code of Ordinances.
C.
The Township Manager shall coordinate the preparation
of all policies and forms as necessary for the implementation of this
article with the approval of the Board of Supervisors.
Unless the context specifically indicates otherwise,
the meanings of the terms used in this article shall be as follows:
The person who has applied for a right-of-way permit or a
construction permit.
The form prescribed by the Township which the applicant must
complete in order to obtain a right-of-way or construction permit.
The building, erection or installation in, on, over or under
a right-of-way. It does not include, as part of the ordinary course
of business, maintenance or repair of existing aerial cables or equipment
in a right-of-way or a single line extension from equipment in the
right-of-way.
The written authorization granted by the Township to an applicant
in order to perform construction in a right-of-way.
A condition that poses a clear and immediate danger to life
or health, or significant loss of property.
Any tangible property located or proposed to be located in
a right-of-way, including, but not be limited to, wires, lines, cables,
conduits, pipes, supporting structures or other facilities.
Work of a minor nature that will keep an existing condition
from failure or decline.
The person who has obtained 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.
The surface and space in, on and above any real property
in which the Township has an interest in law or in equity, including,
but not limited to, any public street, boulevard, avenue, road, highway,
easement, freeway, alley, court or any other place, other than real
property owned in fee by the Township.
A written authorization granted by the Township to an applicant
for use of the rights-of-way in the Township for wires, lines, cables,
conduits, pipes, supporting structures and other facilities.
The transmission, between or among points specified by the
user, of information of the user's choosing, without change in form
or content of the information sent and received.
The offering of telecommunications for a fee directly to
the public, or to such classes of users as to be effectively available
directly to the public, regardless of the facilities used.
A system that offers telecommunications services.
All equipment that is located wholly or partially underneath
a right-of-way.
A.
No person shall enter upon or occupy any right-of-way
for the purpose of installing, constructing, maintaining or operating
a telecommunications system without first having obtained a right-of-way
permit. Any person maintaining or operating a telecommunications system
as of the effective date of this article shall also obtain a right-of-way
permit.
B.
Before a right-of-way permit is issued, the holder
of or applicant for a right-of-way permit shall have applied for any
and all regulatory approvals, permits or authorizations from the appropriate
federal and state authorities, if required. Upon the request of the
Township, the applicant shall submit written evidence of its applications
for or receipt of all such approvals, permits or authorizations.
C.
Nothing in this article shall be construed as a waiver
of any other ordinances or regulations of the Township or the Township's
right to require prospective or current right-of-way permit holders
to secure and remit payment for any and all other required permits
or authorizations.
A.
A right-of-way permit shall only be granted after
an applicant has completed an application in the form that has been
prescribed by the Township, which form may be revised from time to
time. Upon request, an applicant shall be provided with a copy of
the then current application for a right-of-way permit. The application
shall request information regarding the applicant's proposed or actual
physical use and occupation of the rights-of-way. The applicant shall
provide specific information regarding the equipment it proposes to
place or currently maintains in the rights-of-way. If the completed
application does not fully provide such requested information, the
Township may request such additional information as is necessary to
enable it to make a determination regarding the physical use and occupation
of the rights-of-way by the applicant. The application may request
less information from a permit holder applying for a renewal of a
right-of-way permit.
B.
Upon submission of a fully completed application to
the Township and the accompanying fee, the Township shall review the
application as follows. The Township shall grant or deny such application
within 60 days. If the Township denies the application, it will provide
a written response to the applicant explaining the basis for denial.
If the Township fails to grant or reject such application within the
time period specified above, the application shall be deemed approved.
In each case, the 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, the Township may use
such outside experts as it deems necessary to assist in determining
whether the use proposed by the applicant would have a detrimental
effect on the right-of-way or the health, safety and/or welfare of
the residents of the Township. In the event the Township deems it
necessary to employ an outside expert or experts to advise the Township
with respect to a particular application, the reasonable costs of
such expert or experts 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 of a right-of-way
permit at least 60 days prior to its expiration.
B.
Suspension.
(1)
The Township may suspend such right-of-way permit
in the event any one or more of the following has occurred:
(a)
The permit holder shall have caused damage to
Township property or the right-of-way without the prior consent of
the Township (except in the case of an emergency) and without completing
proper restoration.
(b)
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 permit holder's use of the rights-of-way.
(c)
The permit holder failed to pay any of the fees
required under this article.
(d)
The permit holder failed to comply with construction standards in accordance with the provisions contained in § 171-11 below.
(e)
The permit holder failed to indemnify, hold harmless and insure the Township in accordance with the provisions contained in § 171-12 below.
(f)
The permit holder failed to procure and/or maintain a performance or construction bond for the benefit of the Township in accordance with the provisions contained in § 171-15 below.
(g)
The permit holder provided false, incomplete
or misleading information on the rights-of-way or construction permit
application.
(2)
If the 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 30 days to cure the
violation, unless the Township reasonably determines that the event
is an emergency, in which case the Township may impose a shorter time
period to cure the violation.
(3)
If the permit holder fails to cure the violation within
the specified time period, the Township shall be permitted to immediately
suspend the right-of-way permit. A suspension shall be brought to
the attention of the Board of Supervisors at its next meeting at which
time the Board shall be permitted to uphold or withdraw the suspension.
The permit holder shall be provided an opportunity to be heard at
such meeting.
A.
Except in the case of an emergency, before commencing
any construction in the rights-of-way, a person shall apply for and
obtain a construction permit. A construction permit shall only be
granted after an applicant has completed an application in the form
that has been prescribed by the Township, which form may be revised
from time to time. Upon request, an applicant shall be provided with
a copy of the current application for a construction permit. Such
application shall request detailed plans of the proposed construction
activity. Such plans shall describe:
B.
Upon submission of all such information required in Subsection A above, the Township shall review such information and either grant or deny a construction permit within 60 days. If the Township denies the construction permit application, the Township will provide a written response to the applicant explaining the basis of the denial. If the Township fails to grant or deny the construction permit within the time period specified above, the application shall be deemed granted. In each case, the Township shall review the application to determine whether such construction would have a detrimental impact on public safety as it relates to the rights-of-way. The Township may impose conditions on the construction permit regulating the times, locations, and manner of construction to preserve effective traffic flow, prevent hazardous road conditions and/or minimize noise impacts.
Except in cases of emergency, before commencing
any activity in the rights-of-way that is expected to last more than
45 hours in duration, a person must notify the Township of the activity
and the general nature of the project. The activity referred to in
this section pertains to any activity, including, but not limited
to, construction or maintenance activity.
[Amended 4-20-2016 by Ord. No. 408]
A.
Each new and renewing applicant for a right-of-way
permit shall include with its application an application fee in the
amount as set forth from time to time by resolution of the Board of
Supervisors. This fee shall be directly related to the 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, costs
of maintaining the rights-of-way; costs of degradation of streets
and right-of-way property; administrative costs related to the rights-of-way;
traffic control costs pertaining to work in the rights-of-way; and
inspection costs. 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.
B.
Each applicant for a construction permit shall include
with its application an application fee in the amount as set forth
from time to time by resolution of the Board of Supervisors. This
fee shall be directly related to the Township's costs in reviewing
the application and determining time, place and manner restrictions
on the construction activity. If the application for a construction
permit is denied, this fee shall not be refunded. If the application
is granted, then the applicant shall also pay, within 30 days of the
presentation of a statement, the Township's actual costs directly
related to the applicant's construction project based on the hourly
rate established by resolution of the Board of Supervisors. Such actual
costs include, but are not limited to, costs of disruption and rerouting
of traffic, inspection costs and administrative costs. A construction
permit shall apply to a specific construction project in the Township,
and each succeeding construction project shall require the issuance
of a separate construction permit.
C.
Extraordinary expenses. In addition to the fees set
forth above, a permit holder shall pay, within 30 days of the presentation
of a statement, any extraordinary or unusual expenses reasonably incurred
by the Township as a result of the permit holder's use of the rights-of-way,
provided that the 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 public safety
personnel and/or the cost of hazardous waste cleanup or other emergency
services. The statement of such expenses presented to the permit holder
shall be directly related to the Township's actual costs.
D.
In the event that payment of any of the fees identified
above is not made upon submission of the application or by the date
due, the applicant or permit holder shall pay a late payment penalty
of simple interest at an annual percentage rate of 10% of the total
amount past due. Such penalty shall be in lieu of any other monetary
penalty. Acceptance of payment under this section shall not in any
way limit or waive the Township's right to suspend or terminate the
permit according to the terms of this article.
A.
The 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. The 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. The 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.
The Township shall have the right to monitor the telecommunications
systems and the equipment related thereto located in the rights-of-way
in order to prevent interference between and among such systems and
equipment.
C.
A permit holder shall allow the Township to make inspections
of any part of the permit holder's telecommunications system located
in the rights-of-way at any time upon three days' notice or, in case
of an emergency, upon demand.
A.
Whenever a permit holder or any of its subcontractors shall disturb any pavement, sidewalk or other public property in order to perform any underground activities, the permit holder will fully comply by registering with Pennsylvania's One Call System pursuant to 73 P.S. § 176 et seq. Such permit holder shall provide the Township with information showing planned locations and reference points for equipment to be installed. Each permit holder shall perform construction activity in a manner consistent and in compliance with the detailed plans it submitted to the Township pursuant to § 171-7A above 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 Township property in
the right-of-way, the permit holder shall restore such right-of-way
or property within 30 days, weather permitting. In the event that
the permit holder fails to restore the right-of-way or Township property
to its former condition, the Township may repair such damage and assess
all such costs to the permit holder.
C.
The telecommunications system shall not endanger or
interfere with the safety of persons or property within the 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 the telecommunications system so that conditions that
could develop into safety hazards shall be corrected before they become
a hazard.
D.
Except in the case of an emergency, at least three
days prior to the commencement of any construction activity, the permit
holder shall notify nearby residents of such construction activity
in a manner that is satisfactory to the 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 the Township following accepted industry construction
procedures and practices.
F.
Any vehicle used for construction activity in the
Township by the permit holder, including vehicles of any contractor
or subcontractor of the permit holder, shall prominently display a
company logo. Any employee or agent of the permit holder, including
any contractor of subcontractor, who personally visits any residential
dwelling in the Township, shall display a photo identification badge.
G.
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.
H.
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, defend and hold harmless the 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 the 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, reasonable
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 Township harmless for claims caused by the
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 issued
to the permit holder by an insurance company licensed to do business
in the Commonwealth of Pennsylvania in an amount and form acceptable
to the Township as set forth in the permit. A permit holder shall
name the Township as an additional insured on its liability insurance
policies for whom defense will be provided as to all such coverages.
All required insurance coverage shall provide for 30 days' notice
to the 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 provide appropriate insurance
certificates to the Township within 30 days after the execution of
a permit and annually with an application for a renewal permit. Any
certificate of insurance presented to the Township shall verify that
the applicant is insured against claims for personal injury, including
death, as well as claims for property damage arising out of the applicant's
use and occupancy of the rights-of-way.
A.
A permit holder shall annually provide the Township,
upon application for renewal of the permit, or upon request, a current
map of the locations of its existing equipment and facilities and
a summary of all additions and deletions of equipment and facilities
in the rights-of-way, unless no changes have occurred in the previous
year. If no changes have occurred in the previous year, the permit
holder shall so inform the Township in writing.
B.
A permit holder shall submit to the Township such
reasonable information directly related to the permit holder's use
and occupation of the rights-of-way as the Township may request. All
information provided to the Township shall be maintained by the Township
as proprietary and confidential if such information is designated
in good faith as such prior to the time it is provided to the Township.
A right-of-way permit may be transferred or
assigned, upon 30 days' written notice to the Township, provided that
the transferee/assignee agrees in writing, prior to the transfer or
assignment, to comply with all of the obligations and requirements
contained in this article.
A.
All persons submitting a request for a permit to construct
or maintain a telecommunications system in accordance herewith shall
file with their request a bond solely for the protection of the Township
with a surety company or trust company as surety in the amount of
$25,000 to protect the Township from any and all damages or costs
suffered or incurred by the Township as a result thereof, including,
but not limited to, attorney's fees and costs of any action or proceeding,
the full amount of compensation, indemnification, cost of removal
or abandonment of any property, or other costs resulting from a default.
The bond shall be a continuing obligation during the entire term of
any right-of-way permit or construction permit issued in accordance
herewith.
B.
None of the provisions of this § 171-15, nor any bond accepted by the Township pursuant hereto, nor any damages recovered by the Township thereunder shall be construed to excuse the faithful performance by or limit the liability of the permit holder under this article or any permit issued in accordance herewith or for damages either to the full amount of the bond or otherwise.
A.
In addition to all other rights and powers reserved
by the Township, the Township reserves the right to terminate a permit
and all rights and privileges of a permit holder for any of the following
reasons:
(1)
A permit holder fails, after 30 days' prior written
notice, to comply with any of the material provisions of the permit
or this article.
(2)
A permit holder attempts to or does practice any fraud
or deceit in its conduct or relations with the Township under the
permit.
(3)
The Township condemns all of the property of a permit
holder within the Township by the lawful exercise of eminent domain.
(4)
The permit holder abandons the telecommunications
system.
B.
A termination shall be declared only by a written
decision of the Board of Supervisors after an appropriate public hearing
that shall afford the permit holder due process and a full opportunity
to be heard and to respond to any notice of grounds to terminate in
accordance with applicable law. All notice requirements shall be met
by providing the permit holder at least 60 days' prior written notice
of a public hearing concerning the proposed termination. Such notice
shall state grounds for termination. The Board of Supervisors, after
a public hearing and upon finding the existence of grounds for termination,
may either declare the permit terminated or excuse such grounds upon
a showing by the permit holder of mitigating circumstances or good
cause for the existence of such grounds.
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, commence to remove its equipment
from the rights-of-way and shall restore said areas. If such removal
is not completed within six months of such notice, the Township may
deem any property not removed as abandoned and the 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 Township.
B.
During the term of the permit, if the permit holder
decides to abandon or no longer use all or part of its telecommunications
system, it shall provide the Township with written notice of its abandonment
at least 30 days' prior to such decision, which notice shall describe
the equipment and its location.
C.
The Township may request the permit holder to declare
the permit holder's intention as to abandonment of all or part of
the telecommunications system during the term of the permit. The permit
holder shall respond to such request within 90 days or such portions
of the telecommunications system shall be deemed abandoned.
D.
The Township shall have the right to require the permit
holder to commence to remove the abandoned telecommunications system
in part or in total upon 60 days' prior written notice to the permit
holder. If such removal is not completed within six months of such
notice, the Township may remove it at the permit holder's expense.
[Amended 4-20-2016 by Ord. No. 408]
Any person, partnership or corporation who or
which has violated or permitted the violation of any provision of
this article, upon being found liable therefor in a civil enforcement
proceeding commenced by the Township, shall pay a judgment of not
more than $600, plus all court costs. No judgment shall commence or
be imposed, levied or payable until the date of the determination
of a violation by a Magisterial District Judge. If the defendant neither
pays nor timely appeals the judgment, the Township may enforce the
judgment pursuant to the applicable rules of civil procedure, at which
time, in addition to any penalties, the violator shall be liable for
any attorneys’ fees and costs incurred by the Township. Each
day that a violation continues or each section of this article which
shall be found to have been violated shall constitute a separate violation.
The Township, by granting any permit under this
article, does not waive, lessen, impair or surrender the lawful police
powers vested in the Township under applicable federal, state and
local laws pertaining to the regulation or use of the rights-of-way.
The provisions of this article shall be imposed
upon and enforced against all persons requiring a permit for the provision
of telecommunications services or construction of a telecommunications
system within the Township.