[HISTORY: Adopted by the City Council of the City of Lancaster 12-17-2013 by Ord. No.
16-2013.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Streets and sidewalks — See Ch. 262.
[1]
Editor's Note: This ordinance also repealed former Ch. 263,
Right-of-Way Management, adopted 5-28-2013 by Ord. No. 2-2013.
Terms used in this chapter shall have the following meanings,
whether or not the terms are capitalized. Unless otherwise expressly
stated, terms not defined in this chapter shall be construed consistent
with Title 47 of the United States Code and, if not defined therein,
with their common and ordinary meaning.
Poles, wires, cables, equipment, and other facilities located
above the surface of the ground, including their underground supports
and foundations. Such term does not include private driveways, newspaper
vending machines, street banners, canopies or other minor obstructions
located in the rights-of-way.
A person that (directly or indirectly) owns or controls,
is owned or controlled by, or is under common ownership or control
with another person.
The Cable Communications Policy Act of 1984, as amended by
the Cable Television Consumer Protection and Competition Act of 1992
and the Telecommunications Act of 1996, and as hereafter amended (47
U.S.C. § 521 et seq., as hereafter amended).
Right-of-way use agreement required pursuant to the Cable
Act and the City Code for any cable franchise issued by the City.
A fee paid by a cable operator pursuant to a cable franchise
agreement for the cable operator's use of the City's rights-of-way.
The fee is calculated as a percentage of the cable operator's gross
revenues from the operation of the cable system to provide cable services
in the City.
Right-of-way use authorization pursuant to this chapter authorizing
a person to own, construct, operate and maintain a cable system to
provide cable service or an OVS system to provide OVS service within
the City.
A person providing or offering to provide cable service over
a cable system within the City as that term is defined in the Cable
Act.
The one-way transmission to subscribers of video programming
or other programming service and subscriber interaction, if any, which
is required for the selection or use of such video programming or
other programming service.
Facilities consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within the City, but
such term does not include i) a facility that serves only to retransmit
the television signals of one or more television broadcast stations;
ii) a facility that serves subscribers without using any right-of-way;
iii) a facility of a common carrier which is subject, in whole or
in part, to the provisions of Title II of the Communications Act of
1934, as amended, except that such facility shall be considered a
cable system [other than for purposes of 47 U.S.C. § 541(c)]
to the extent such facility is used in the transmission of video programming
directly to subscribers, unless the extent of such use is solely to
provide interactive on-demand services; iv) an open video system that
complies with 47 U.S.C. § 573; or v) any facilities of any
electric utility used solely for operating its electric utility system.
A reference to a cable system refers to any part thereof. This definition
of "cable system" shall in no way be deemed to circumscribe or limit
the valid authority of the City to regulate or authorize the facilities
and/or services of any other telecommunications provider or other
person that owns, constructs, operates, or maintains facilities in
the right-of-way.
A certificate of public convenience issued by the Pennsylvania
Public Utility Commission to a public utility.
The City of Lancaster, Pennsylvania.
The Code of the City of Lancaster, Pennsylvania.
All real property now or hereafter owned by the City whether
in fee ownership or other interest.
All construction work performed by the City or any of its
departments, either with its own personnel or under contract, including
repair, alteration, replacement, or maintenance of facilities owned,
operated, maintained, or controlled by the City or for which the City
is responsible.
The Communications Act of 1934, 47 U.S.C. § 151
et seq., as amended and as hereafter amended.
The Department of Public Works of the City of Lancaster.
The Director of the Department of Public Works of the City
of Lancaster. Except for the preparation and promulgation of policies
and procedures, which is solely the function of the Director, such
term shall include the employees, agents and assignees of the Director.
A condition that:
Conduit, pipes, cables, wires, lines, towers, optic fiber,
antennas, poles, associated equipment and appurtenances, and any other
facilities located in the right-of-way and designed, constructed,
and/or used by telecommunications providers, public utilities, or
other persons for transmitting, transporting, or distributing communications,
telecommunications, electricity, natural gas or manufactured gas,
oil, gasoline, steam, or any other form of energy, signal or substance.
A right-of-way use authorization pursuant to this chapter
that authorizes a person to own, construct, operate and maintain a
cable system to provide cable service or an OVS system to provide
OVS service within the City.
A cable franchise agreement or OVS agreement.
A person that is issued a franchise by the City.
The offering of a capability for generating, acquiring, storing,
transforming, processing, retrieving, utilizing, or making available
information via telecommunications (whether over a cable system, telecommunications
system, open video system, or any other type of facilities), and includes
electronic publishing, but does not include any use of any such capability
for the management, control, or operation of a telecommunications
system or the management of a telecommunications service.
Any corporation, company, association, joint-stock company,
firm, partnership, limited liability company, or other entity; municipal,
industrial development, housing, redevelopment, and other authority
or corporation established pursuant to statutes of the Commonwealth
of Pennsylvania; and any individual not regulated as a public utility
by the Public Utility Commission.
Facilities consisting of a set of transmission paths and
associated signal generation, reception, and control equipment that
is designed to provide video programming services, cable service,
and/or services similar to cable service to multiple subscribers within
the City and which the Federal Communications Commission or its successor
has certified as compliant with Part 76 of its rules, 47 CFR Part
76.1500 et seq., as amended from time to time, provided that an open
video system is not a system of telecommunications facilities and
does not provide telecommunications service to the extent that it
provides only video services; and provided, further, that an open
video system means only those facilities that are operated by a person
authorized to provide video services pursuant to Section 653 of the
Communications Act of 1934, as amended, 47 U.S.C. § 573,
where such person is properly certificated to provide such services
pursuant to applicable Federal Communications Commission regulations.
Video programming services that are provided over an open
video system.
The recipient of a right-of-way use permit or cable franchise that is issued by the City pursuant to this chapter, and persons holding existing franchises, special ordinances, or other authorizations that are subject to the transitional provisions set forth in § 263-3C, including the City, its departments, agencies, and authorities.
Corporations, companies, associations, joint-stock companies,
firms, partnerships, limited liability companies, and other entities;
municipal, industrial development, housing, redevelopment, and other
authorities and corporations established pursuant to statutes of the
Commonwealth of Pennsylvania; and individuals.
The written regulations, standards, operations and/or courses
of action established by the City to implement the provisions of this
chapter. The preparation and promulgation of policies and procedures
are solely the function of the City and not the employees, agents
or assignees of the City.
The state administrative agency, or lawful successor thereto,
authorized to regulate and oversee public utilities and telecommunications
providers and telecommunications services in the Commonwealth of Pennsylvania,
to the extent provided by law.
Shall be defined as that term is defined in the Pennsylvania
Public Utility Code as of the effective date of this chapter, and
as hereafter amended.
Any entity which is operating as a public utility as defined
under the Pennsylvania Public Utility Code, and is subject to regulation
by the PUC, regardless of whether or not the entity has been issued
a certificate of public convenience by the Pennsylvania Public Utility
Commission.
The surface of and space above and below any real property
in the City in which the City has a regulatory interest, or interest
as a trustee for the public, as such interests now or hereafter exist,
including, but not limited to, all streets, highways, avenues, roads,
alleys, sidewalks, tunnels, viaducts, bridges, skyways, or any other
public place, area or property under the control of the City, and
any unrestricted public or utility easements established, dedicated,
platted, improved or devoted for utility purposes but excluding lands
other than Streets that are owned by the City. The phrase "in the
right(s)-of-way" means "in, on, over, along, above and/or under the
right(s)-of-way."
A license, right-of-way use permit, cable franchise, or OVS
franchise issued pursuant to this chapter.
A right-of-way use permit issued pursuant to this chapter.
Any telecommunications service, cable service, OVS service,
video programming service, information service, utility service (including,
but not limited to, electric, gas, water, or steam service), or other
form of service provided by means of facilities located in the right-of-way.
A strip of land or part thereof within the right-of-way,
whether dedicated or not, that is intended or used for vehicular and
pedestrian traffic. The phrase "in the (a) street(s)" means "in, on,
over, along, above and/or under the (a) street(s)."
A permit for excavation of a street for the construction
or installation of facilities in any right-of-way in the City.
Any cable system, OVS system, telecommunications system,
or integral part thereof.
The transmission, between or among points specified by the
user, of information of the user's choosing, without change in the
form or content of the information as sent and received.
The plant, equipment and property within the City used to
transmit, receive, distribute, provide or offer telecommunications
service.
A person who provides telecommunications service over telecommunications
facilities.
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 service.
Utility and telecommunications facilities located under the
surface of the ground, excluding the underground foundations or supports
for aerial facilities.
All public utilities regulated by the Public Utility Commission
owning or operating facilities in the City's rights-of-way shall comply
with the following requirements:
A.
License. All public utilities shall be deemed to have a license from
the City under this chapter to occupy the rights-of-way.
B.
As-built maps. On or before March 1, 2014, each public utility shall
submit to the department two paper copies and one electronic copy
of as-built map or maps and engineering specifications as set forth
in the policies and procedures depicting and certifying the location
of all its existing facilities within the right-of-way. Such electronic
and paper maps and engineering specifications shall be submitted in
a format and include the information required by the City by/in the
policies and procedures. If the maps are not provided electronically
in the required format, then the utility shall reimburse the City
for the cost of converting paper maps into electronic form or the
cost of converting electronic maps in another format into the required
format. Such maps are, and shall remain, confidential documents and
are exempt from public disclosure under Pennsylvania's Right to Know
Law, 65 Pa.C.S.A. § 708; the Public Utility Confidential
Security Information Disclosure Protection Act, 35 P.S. §§ 2141.1
through 2141.3; and the Public Utility Commission Regulations relating
to Confidential Security Information, 52 Pa. Code § 102.1
After submission of the as-built maps required under this section,
each public utility having facilities in the City rights-of-way shall
update such maps as required under this chapter.
C.
Right to inspect. The City may conduct inspections of the city rights-of-way
in order to ensure that utility facilities located within such rights-of-way
do not constitute a public safety hazard and remain in compliance
with the standards set forth by the Public Utility Commission. Such
inspections shall be limited to establishing whether such facilities
meet relevant PUC standards and comply with such City construction
standards as relate to the opening and closing of City streets, curbs,
and sidewalks, as provided under 15 Pa.C.S.A. § 1511(e).
In the event that the City determines that any facilities of a utility
are not in compliance with such standards, then the City may bring
a complaint against such utility before the Public Utility Commission,
in accordance with established PUC procedures. The City may also elect,
in its discretion, to notify the utility of the existence of any noncompliant
facilities, in order to abate such violations without the need for
the filing of a formal PUC complaint.
D.
Construction in rights-of-way.
(1)
Street opening permits. Except in the case of an emergency, no utility shall perform any street excavation in the rights-of-way without first obtaining a street opening permit and paying a permit fee pursuant to Chapter 262, Article VI, of the City Code. No utility shall perform curb and sidewalk construction replacement or repair without first obtaining a curb and sidewalk permit and paying a permit fee pursuant to Chapter 262, Article V, of the City Code. The procurement of a street opening permit shall only be necessary when the proposed street excavation and/or construction impacts City streets; it shall not apply to any construction or excavation activities on state roads.
(2)
Construction standards. Construction standards shall include those determined by the Public Utility Commission for the installation of facilities in City rights-of-way, as well as such City construction standards as relate to the opening and closing of City streets, curbs, and sidewalks, as provided under 15 Pa.C.S.A. § 1511(e). Compliance with construction requirements pursuant to PUC-related standards shall remain within the sole and exclusive jurisdiction of the PUC. Compliance with construction requirements pursuant to City standards shall remain within the jurisdiction of the City. The City shall retain the right to file formal complaints pursuant to PUC-related construction as set forth under Subsection D.
(3)
Security. Each utility opening, closing, or excavating City streets,
curbs, and sidewalks as provided under 15 Pa.C.S.A. § 1511(e)
in conjunction with the utility's construction or maintenance activities
in the ROW shall furnish to the City, at the utility's expense, a
letter of credit or other form of financial security, in such form
and in the amount as required by the City consistent with the Policies
and Procedures and regulations of the City to guarantee the proper
closing and restoration of the City's streets, sidewalks, or ROW.
The security shall be a continuing obligation until the completion
of the construction or maintenance as confirmed in writing by the
City.
(4)
Insurance. The applicant shall maintain insurance, with a reputable
insurance company authorized to do business in the Commonwealth of
Pennsylvania, indemnifying the City from and against any and all claims
for injury or damage to persons or property, both real and personal,
caused by the construction requiring the opening or closing of City
streets, sidewalks, or ROW in accordance with 15 Pa.C.S.A. § 1511(e).
The amounts of such coverage shall be as determined by the City by
regulation. The City shall be designated as an additional insured
under each of the insurance policies. The utility shall not cancel
any required insurance policy without first obtaining alternative
insurance in conformance with this section. Utilities undertaking
work in the City rights-of-way shall provide the City with at least
30 days' advance written notice of any material changes or cancellation
of any required insurance policy.
(5)
Recently constructed streets. No street opening permit shall be issued to cut any City street that was constructed, reconstructed or resurfaced fewer than three years prior to application for a street opening permit, unless the applicant agrees in writing to overlay or pave the surface of the street, from curb to curb and intersection to intersection, in accordance with applicable City standards. The City may grant an exception to this section in the case of an emergency. The applicant shall pay all street degradation fees and comply with all related requirements as prescribed in Chapter 262, Article VI, of the City Code.
(6)
Relocation or removal of facilities. Within 60 days following written
notice from the City, or such longer period as the City determines
is reasonably necessary or such shorter period in the case of an emergency,
a utility shall temporarily or permanently remove, relocate, change
or alter the position of any facilities within the right-of-way, excluding
those underground, whenever the City, consistent with applicable PUC
regulations, shall have determined that such removal, relocation,
change or alteration is reasonably necessary under the following circumstances:
the construction, repair, maintenance, or installation of any City
or other public improvement in the right-of-way; the operations of
the City or other governmental entity in the right-of-way; vacation
of a Street or the release of a utility easement; or an emergency
as determined by the City. Utilities must relocate and remove facilities
consistent with the regulations and standards of the PUC.
(7)
Coordination of construction activities. By March 1 of each year,
or at such other time as the City and utilities may agree, each public
utility shall provide the department with a schedule (including plans
and projected start and finish dates for each project) of its planned
construction activities for the following year which may affect the
rights-of-way. The schedule shall depict all planned construction
activities the utility is planning to perform within the year.
(8)
Damage to facilities or property. A utility, including any contractor
working for a utility, shall avoid damage to any facilities and/or
public or private property. If any facilities and/or public or private
property are damaged by the utility, including any contractor working
for the utility, the utility shall promptly repair and restore such
property within 10 business days. The utility shall utilize the Pennsylvania
One Call System prior to any disturbance of the rights-of-way and
shall adhere to all other requirements of the Pennsylvania Underground
Utility Line Protection Act.
(9)
Facilities maps. Each utility issued a street opening permit shall
submit to the City, not later than 30 days after completion of the
permitted construction (or any part thereof, if required by the City),
two paper copies and one electronic copy of updated as-built map or
maps and engineering specifications as set forth in the Policies and
Procedures depicting and certifying the location of the new facilities
constructed or updated. Such documents shall be submitted in a format
and include the information required by the City in the Policies and
Procedures. If the maps are not provided electronically in the required
format, then the utility shall reimburse the City for the cost of
converting paper maps into electronic form or the cost of converting
electronic maps in another format into the required format. Such maps
are exempt from public disclosure under Pennsylvania's Right to Know
Law, 65 Pa.C.S.A. § 708; the Public Utility Confidential
Security Information Disclosure Protection Act, 35 P.S. §§ 2141.1
through 2141.3; and the Public Utility Commission Regulations relating
to Confidential Security Information, 52 Pa. Code § 102.1.
(10)
Field marking. Each utility shall field-mark the locations of
its underground facilities upon request by other utilities or the
City, consistent with the requirements of the Pennsylvania Underground
Utility Line Protection Act and at no cost to the City.
E.
Right-of-way maintenance fee.
(1)
Compensation for right-of-way use. Occupancy of City rights-of-way
by any utility is subject to the City's right to fix annually a fair
and reasonable compensation, which shall be directly related to the
City's actual right-of-way maintenance costs.
(2)
Annual right-of-way maintenance fee. Each utility with facilities
in the City's rights-of-way shall pay an annual fee to compensate
the City for its costs incurred in connection with the ongoing use
and occupancy of City rights-of-way. The annual right-of-way maintenance
fee shall be determined by the City and authorized by resolution of
City Council and shall be based on the City's actual ROW maintenance
costs. The annual right-of-way maintenance fee shall be fixed on a
per-linear-foot basis for underground facilities and on a per-linear-foot
basis for aerial facilities. If subject to a cable franchise agreement,
the utility shall not be required to remit both a cable franchise
fee amount and an annual right-of-way maintenance fee to the City;
such utility shall pay the higher of the two fees to the City.
A.
Right-of-way use authorization required.
(1)
Right-of-way use authorization. Except as otherwise provided in this chapter, no non-PUC-regulated entity shall own, construct, operate and/or maintain facilities in any right-of-way of the City to provide or to enable others to provide services to persons or areas in the City or outside the City without a right-of-way use authorization. The types of right-of-way use authorization are a right-of-way use permit and a cable franchise. Public utilities regulated by the PUC shall not be subject to this section and shall comply with § 263-2 above.
(2)
Permit required. Pursuant to this chapter, all non-PUC-regulated
entities that own, construct and/or maintain facilities in any public
right-of-way shall obtain a right-of-way use permit. If any such Entity
is subject to a cable franchise agreement, the permittee shall not
be required to remit both a cable franchise fee and an annual right-of-way
maintenance fee to the City. Such permittee shall pay the higher amount
of the two fees to the City.
B.
Right-of-way use permit.
(1)
Permit required; term and scope of permit. No non-PUC-regulated entity,
other than a franchisee, may own, construct, operate and/or maintain
facilities that occupy the right-of-way without first obtaining a
ROW use permit. Any ROW use permit shall be subject to such conditions
as the City may from time to time establish and shall otherwise conform
to the requirements of this chapter and applicable law. A ROW use
permit shall be for a term of five years. A ROW use permit and the
rights, benefits and permissions conferred thereby shall apply to
the entire geographic area of the City.
(2)
Approval by City. A ROW use permit shall be authorized only by the
City and shall not become effective unless or until so authorized.
In addition to the other requirements contained herein, the applicant
shall demonstrate:
(a)
That it has a history of compliance with applicable laws and
regulations relating to the management, construction and maintenance
of facilities in streets and rights-of-way, wherever located; and
(b)
That it possesses all licenses, permits, authorizations, and
other permissions required by the Federal Communications Commission,
the Commonwealth of Pennsylvania and the City as a condition of its
using the right-of-way and furnishing the services and operating the
facilities proposed by the applicant.
(3)
Insurance. Each permittee shall, at all times during the entire term
of the right-of-way use permit, maintain and require its contractors
and subcontractors to maintain insurance with a reputable insurance
company authorized to do business in the Commonwealth of Pennsylvania
and which has an A.M. Best rating (or equivalent) no less than "A"
indemnifying the City from and against any and all claims for injury
or damage to persons or property, both real and personal, caused by
the construction, installation, operation, maintenance or removal
of permittee's system or facilities in the rights-of-way. The amounts
of such coverage shall be as determined by the City by regulation.
The City shall be designated as an additional insured under each of
the insurance policies required by this section. Permittee shall not
cancel any required insurance policy without obtaining alternative
insurance in conformance with this section. Permittee shall provide
the City with at least 30 days' advance written notice of any material
changes or cancellation of any required insurance policy.
(4)
Indemnification. Each permittee shall, at its sole cost and expense,
indemnify, defend and hold harmless the City, 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
in whole or in part from, caused by or connected with any act or omission
of the permittee, its officers, agents, employees or contractors arising
out of, but not limited to, the construction, installation, operation,
maintenance or removal of permittee's system or facilities in the
rights-of-way. Each permittee shall defend any actions or proceedings
against the City in which it is claimed that personal injury, including
death, or property damage was caused by the permit holder's construction,
installation, operation, maintenance or removal of permittee's system
or facilities in 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.
(5)
Application for right-of-way use permit. Application for a ROW use
permit shall be in such form and shall include such information as
the City determines by regulation. Within a reasonable period of time
not to exceed 60 days after receiving a complete application hereunder,
the City shall make a determination approving or denying the application.
Determinations to grant or deny an application shall be made on a
nondiscriminatory and competitively neutral basis. If the application
is denied, the determination shall include the reasons for denial.
The application fee, which shall be paid at the time of the filing
of the application, shall be as fixed from time to time by resolution
of City Council. The application fee shall be sufficient to reimburse
the City for the actual costs of City staff time and other resources
that are required and may be adjusted by resolution of City Council.
(6)
Renewal of right-of-way use permit.
(a)
A person desiring to renew a ROW use permit prior to the expiration
of the permit shall file an application with the City for renewal
of its authorization, which shall include the information and documents
required for an initial application and other material information
required by the City by regulation.
(b)
The City shall make a determination accepting or denying the
renewal application. If the renewal application is denied, the determination
shall include the reasons for nonrenewal. Determinations to grant
or deny a renewal application shall be made on a nondiscriminatory
and competitively neutral basis. The City shall not unreasonably delay
or deny the issuance of a renewal permit.
(7)
As-built maps. As the City controls and maintains the rights-of-way
for the benefit of its citizens, it is the responsibility of the City
to ensure that such rights-of-way meet the highest possible public
safety standards. As such, the City needs to be informed regarding
the placement of all facilities within the rights-of-way, including
those positioned aerially and underground. Each person applying for
a ROW use permit shall submit to the Department two paper copies and
one electronic copy of as-built map or maps and engineering specifications
as set forth in the Policies and Procedures depicting and certifying
the location of all its existing facilities within the right-of-way.
Such electronic and paper maps and engineering specifications shall
be submitted in a format and include the information required by the
City by/in the policies and procedures, and shall be submitted with
the application. If the maps are not provided electronically in the
required format, then the person shall reimburse the City for the
cost of converting paper maps into electronic form or the cost of
converting electronic maps in another format into the required format.
Such maps are, and shall remain, confidential documents and are exempt
from public disclosure under Pennsylvania's Right to Know Law, 65
Pa.C.S.A. § 708. After submission of the as-built maps required
under this section, each permittee having facilities in the City rights-of-way
shall update such maps as required under this chapter.
(8)
Right to inspect. The Department shall have the right to inspect
all of the facilities of the permittee, including aerial facilities
and underground facilities, to ensure health and safety with respect
to such facilities, other facilities, the rights-of-way and any other
public or private property and to determine compliance with the terms
of this chapter and other applicable laws and regulations. Permittees
are required to cooperate with all such inspections and to provide
information requested by the City as part of the inspection.
(9)
Use authorized. No ROW use permit shall confer any exclusive right
or privilege to occupy or use the right-of-way for any purpose; or
explicitly or impliedly preclude or affect the City's right to authorize
use of the right-of-way by other persons to own, construct, operate,
maintain, and/or provide the same or different facilities or services,
or for any other purposes as the City determines appropriate; or affect
the City's right to construct, operate or maintain any type of facilities
itself or offer any type of services in the right-of-way; or authorize
or excuse any person from securing such further easements, leases,
permits or other approvals as may be required by applicable law or
regulation to occupy and use the right-of-way; or convey any right,
title or interest in any right-of-way greater or other than an agreement
only to use and occupy the right-of-way for the limited purposes and
terms provided in the ROW use permit; or be construed as any warranty
of title.
(10)
Owner's consent. No ROW use permit expressly or impliedly authorizes
a permittee to provide any services to, or install any facilities
on, any private property without the owner's consent or to use publicly
or privately owned poles, ducts or conduits without a separate agreement
with the owners thereof for such use.
(11)
Substantially similar terms. ROW use permits and renewals entered
into after the effective date of this chapter shall contain substantially
similar terms which, taken as a whole upon consideration of all of
its material terms and upon consideration of the nature of the services
to be authorized and other relevant characteristics of applicants,
do not provide substantially more or less favorable terms and conditions
than those required of other permittees.
C.
Transitional provisions.
(1)
Persons already authorized to use the right-of-way. Any non-PUC-regulated
entity holding a permit or other authorization from the City to own,
construct, operate, and/or maintain facilities in the right-of-way
to provide services may continue to conduct those activities expressly
authorized until the earlier of the following: i) the conclusion of
the present term of its existing authorization, or ii) 180 days after
the effective date of this chapter, provided that in the case of a
cable franchise, such authorization shall continue until the expiration
of the current term of the cable franchise. Notwithstanding the foregoing,
such persons (with the exception of cable franchisees) shall apply
for a superseding ROW use permit pursuant to this chapter within 90
days after the effective date of the chapter and shall be subject
to the terms and conditions of this chapter.
(2)
Pending applications. Applications for an authorization to occupy
or use the right-of-way that are pending on the effective date of
this chapter shall be subject to this chapter. A person with a pending
application shall submit additional information to comply with the
requirements of this chapter and applicable regulations of the City
governing applications within 30 days from the effective date of this
chapter.
(3)
Operating without right-of-way use authorization. Any non-PUC-regulated
entity that owns or operates of any facilities currently located in
the right-of-way, the construction, operation, or maintenance of which
is not currently authorized but is required to be authorized under
this chapter, shall have 90 days from the effective date of this chapter
to file one or more applications for a ROW use authorization. Any
entity timely filing such an application shall not be subject to penalties
for failure to hold such a ROW use authorization, provided that said
application remains pending. Nothing herein shall relieve any person
of any liability for its failure to obtain any permit or other authorization
required under other provisions of this chapter or City ordinances
or regulations, and nothing herein shall prevent the City from requiring
removal of any facilities installed in violation of this chapter or
City ordinances or regulations.
D.
Cable franchise or open video system franchise.
(1)
Franchise required.
(a)
No person may own, construct, operate or maintain a cable system
or open video system within the City, provide cable service over a
cable system, or provide OVS service over an OVS without a cable franchise
or OVS franchise, whichever is applicable, issued by the City.
(b)
To the extent permitted by law, facilities used to provide telecommunications
service, information service or any form of services similar to cable
service or OVS service, that are also used to provide cable service
or OVS service, shall be subject to this chapter and shall also require
a right-of-way-use permit pursuant to this chapter.
(2)
Effect of authorization.
(a)
A cable franchise or an OVS franchise shall not confer any authority
to provide any form or type of telecommunications service or information
service in addition to the cable service or OVS service authorized
by the franchise. To the extent permitted by law, a separate right-of-way
use permit pursuant to this chapter, in addition to the cable franchise
or OVS franchise, shall be required before any franchisee is permitted
to use facilities in the right-of-way to furnish any form or type
of telecommunications service or information service.
(b)
In the event of a conflict between the provisions of this chapter
and a cable franchise agreement or OVS agreement in effect on the
effective date of this chapter, the provisions of the cable franchise
agreement or OVS agreement shall govern.
E.
Alteration or modification of existing facilities.
(1)
Alteration or modification of existing facilities. The permittee
must notify the City upon alteration or modification of existing facilities
within the rights-of-way. The permittee must additionally provide
an updated facilities map if facilities have been removed from or
added to the rights-of-way.
(2)
Change in information. If there are any changes in information provided
in the original permit application, the permit holder has an obligation
to notify the City within 60 days of such changes.
F.
Construction in the rights-of-way.
(1)
Street opening permits. Except in the case of an emergency, no non-PUC-regulated entity shall perform any street excavation in the rights-of-way without first obtaining a street opening permit and paying a permit fee pursuant to Chapter 262, Article VI, of the City Code. No person shall perform curb and sidewalk construction replacement or repair without first obtaining a curb and sidewalk permit and paying a permit fee pursuant to Chapter 262, Article V, of the City Code. The procurement of a street opening permit shall only be necessary when the proposed street excavation and/or construction affects City streets; it shall not apply to any construction or excavation activities on state roads.
(2)
Construction standards.
(a)
All construction, installation, maintenance, and operation of
facilities in the ROW by non-PUC-regulated entities shall conform
to the requirements of the following publications, as from time to
time amended: the Pennsylvania Department of Transportation Publication
Form 408, the City of Lancaster Curb and Sidewalk Regulations, National
Electrical Code, and the National Electrical Safety Code (collectively,
the "City of Lancaster ROW Construction Standards"). In the event
of conflict between the ROW Construction Standards and this section,
this section shall govern as of the effective date of this chapter.
(3)
Security. Each non-PUC-regulated entity performing construction in
the ROW shall furnish to the City, at the person's expense, a letter
of credit or other form of financial security, is such form and in
the amount as required by the City consistent with the Policies and
Procedures and regulations of the City. The security shall be a continuing
obligation until the completion of the construction as confirmed in
writing by the City.
(4)
Right to inspect facilities. The City may inspect the construction
or installation of the facilities of any non-PUC-regulated entity,
including both aerial and underground facilities, and any construction
or repair activity to ensure health and safety with respect to such
facilities, other facilities, the rights-of-way and any other public
or private property, and determine compliance with the terms of this
chapter and other applicable laws and regulations. Entities are required
to cooperate with all such inspections and to provide information
requested by the City as part of the inspection.
(5)
Recently constructed streets. No street opening permit shall be issued to cut any City street that was constructed, reconstructed or resurfaced fewer than three years prior to application for a street opening permit, unless the applicant agrees in writing to overlay or pave the surface of the street, from curb to curb and intersection to intersection, to the satisfaction of the Department. The City may grant an exception to this section in the case of an emergency. The applicant shall pay all street degradation fees and comply with all related requirements as prescribed in Chapter 262, Article VI, of the City Code.
(6)
Relocation or removal of facilities. Within 60 days following written
notice from the City, or such longer period as the City determines
is reasonably necessary or such shorter period in the case of an emergency,
a permittee shall temporarily or permanently remove, relocate, change
or alter the position of any facilities within the right-of-way, excluding
those underground, whenever the department, consistent with applicable
PUC regulations, shall have determined that such removal, relocation,
change or alteration is reasonably necessary under the following circumstances:
the construction, repair, maintenance, or installation of any City
or other public improvement in the right-of-way; the operations of
the City or other governmental entity in the right-of-way; vacation
of a street or the release of a utility easement; or an emergency
as determined by the City.
(7)
Coordination of construction activities. By March 1 of each year,
or at such other time as the City and permittees may agree, each right-of-way
use permittee shall provide the department with a schedule (including
plans and projected start and finish dates for each project) of its
planned construction activities for the following year which may affect
the rights-of-way. The schedule shall depict all planned construction
activities the permittee is committed to perform within the year.
(8)
Damage to facilities or property. A permittee, including any contractor
working for a permittee, shall avoid damage to any facilities and/or
public or private property. If any facilities and/or public or private
property are damaged by permittee, including any contractor working
for permittee, the permittee shall promptly repair and restore such
property within 10 business days. Permittee shall utilize the Pennsylvania
One Call System prior to any disturbance of the rights-of-way and
shall adhere to all other requirements of the Pennsylvania Underground
Utility Line Protection Act.
(9)
Facilities maps. Each non-PUC-regulated entity issued a street opening
permit shall submit to the City, not later than 30 days after completion
of the permitted construction (or any part thereof, if required by
the City) two paper copies and one electronic copy of as-built map
or maps and engineering specifications as set forth in the Policies
and Procedures depicting and certifying the location of the facilities
constructed. Such engineering specifications and electronic and paper
maps shall be submitted in a format and include the information required
by the City in the Policies and Procedures. If the maps are not provided
electronically in the required format, then the person shall reimburse
the City for the cost of converting paper maps into electronic form
or the cost of converting electronic maps in another format into the
required format. Such maps are exempt from public disclosure under
Pennsylvania's Right to Know Law, 65 Pa.C.S.A. § 708.
(10)
Field marking. Each permittee shall field-mark the locations
of its underground facilities upon request by other permittees, public
utilities or the City, consistent with the requirements of the Pennsylvania
Underground Utility Line Protection Act and at no cost to the City.
G.
Right-of-way maintenance fee.
(1)
Compensation for right-of-way use. Every ROW use permit is subject
to the City's right to fix annually fair and reasonable compensation,
which compensation shall be directly related to the City's actual
right-of-way maintenance costs, including, but not limited to, the
cost to the City of administration and performance of all inspection,
permitting, enforcement, and other ROW management activities.
(2)
Annual right-of-way maintenance fee. Each permittee that is not a
franchisee, including City ROW permittees, shall pay an annual fee
to the City to compensate the City for its costs incurred in connection
with the ongoing use and occupancy of the right-of-way. The annual
right-of-way maintenance fee shall be determined by the City and authorized
by resolution of City Council and shall be based on the City's actual
ROW maintenance costs. The annual right-of-way maintenance fee shall
be fixed on a per-linear-foot basis for underground facilities and
on a per-linear-foot basis for aerial facilities. If subject to a
cable franchise agreement, the permittee shall not be required to
remit both a cable franchise fee amount and an annual right-of-way
maintenance fee to the City; such permittee shall pay the higher of
the two fees to the City.
A.
Penalties.
(1)
PUC-regulated utilities.
(a)
In the event a public utility is found by the City to have violated
a PUC regulation, standard, or order, then the City may bring a complaint
against such public utility before the Public Utility Commission for
violation of such regulation, standard, or order. The City may also
notify the utility of the existence of any suspected violation of
PUC standards, regulations or order in order to obtain compliance
by the utility.
(b)
In the event a public utility is found to have violated any
other provision of this chapter that is not within the exclusive jurisdiction
of the PUC, then such public utility shall be subject, upon conviction
thereof, to a fine not exceeding $300, for each and every offense,
together with attorneys' fees and costs, and, in default of the payment
thereof, imprisonment for not more than 90 days. A separate and distinct
violation shall be deemed to be committed each day on which a violation
occurs or continues to occur. In addition to an action to enforce
any penalty imposed by this chapter and any other remedy at law or
in equity under this title, the City may apply to a Court of Common
Pleas for an injunction or other appropriate relief at law or in equity
to enforce compliance with or restrain violation of any provision
of this chapter which is not subject to the exclusive jurisdiction
of the PUC.
(c)
Nothing in this section shall be construed to permit the City
to commence or attempt to commence prosecution of any PUC-regulated
utility for a violation of any regulation, standard or order of the
PUC.
(2)
Non-PUC-regulated entities. Any entity not regulated by the PUC that
is found by the City to have violated any provision of this chapter
shall be subject, upon conviction thereof, to a fine not exceeding
$300, for each and every offense, together with attorneys' fees and
costs, and, in default of the payment thereof, imprisonment for not
more than 90 days. A separate and distinct violation shall be deemed
to be committed each day on which a violation occurs or continues
to occur. In addition to an action to enforce any penalty imposed
by this chapter and any other remedy at law or in equity under this
title, the City may apply to a Court of Common Pleas for an injunction
or other appropriate relief at law or in equity to enforce compliance
with or restrain violation of any provision of this chapter.
B.
Determination of violation. In the event a determination is made
that a person has violated any provision of this chapter or right-of-way
use permit, such person shall be provided written notice of the determination
and the reasons therefor. Except in the case of an emergency, the
person shall have 30 days to cure the violation. If the nature of
the violation is such that it cannot be fully cured within such time
period, the City may, in its reasonable judgment, extend the time
period to cure, provided that the person has commenced to cure and
is diligently pursuing its efforts to cure. If the violation has not
been cured within the time allowed, the City may take any and all
actions authorized by this chapter and/or Pennsylvania law and regulations.
A.
Proprietary information. If a person considers information it is
obligated to provide to the City under this chapter to be a business
or trade secret or otherwise proprietary or confidential in nature
and desires to protect the information from disclosure, then the person
shall mark such information as proprietary and confidential. Subject
to the requirements of the Right to Know Act of 2009, 65 P.S. § 67.101
et seq., as amended, and other applicable law, the City shall exercise
reasonable good faith efforts to protect such proprietary and confidential
information that is so marked from disclosure. The City shall provide
notice to the person in the following circumstances: i) if the City
receives a request for disclosure of such proprietary and confidential
information and the City Solicitor determines that the information
is or may be subject to disclosure under applicable law; or ii) if
the City Solicitor determines that the information should be disclosed
in relation to its enforcement of this chapter or the exercise of
its police or regulatory powers. In the event the person does not
obtain a protective order barring disclosure of the information from
a court of competent jurisdiction within 30 days following receipt
of the City's notice, then the City may disclose the information without
further notice to the person.
B.
Leased facilities. Subject to the provisions of this chapter and
with prior written approval of the City, a non-PUC-regulated entity
shall have the right to furnish any facilities for which it has the
applicable authorization to own, construct, operate and/or maintain
in the right-of-way to another person for the latter's use in constructing
or operating its own facilities in the right-of-way, provided that:
(1)
The entity furnishing its facilities to another shall first deliver
to the City notice that there is a fully signed and executed lease,
rental agreement, or other agreement with such other person pursuant
to which the facilities are to be furnished; and
(2)
The person to which the facilities are furnished shall comply with
all of the requirements of this chapter and other applicable policies
and procedures.
C.
Duty to provide information. Within 10 days of a written request
from the City, each permittee shall furnish the City with information
sufficient to demonstrate the following: that the permittee has complied
with all requirements of this chapter; that all fees and taxes due
the City in connection with the services and facilities provided by
the permittee have been properly paid by the permittee; and any other
information reasonably related to the permittee's obligations pursuant
to this chapter.
D.
Right to inspect records. The City shall have the right, upon 30
days' written notice and during normal business hours, to inspect
all documents, records, maps and other pertinent information maintained
by the permittee that relate directly to the terms and conditions
of this chapter.
E.
No substitute for other required permissions. No ROW use authorization
or ROW use permit includes, means, or is in whole or part a substitute
for any other permit or authorization required by the laws and regulations
of the City for the privilege of transacting and carrying on a business
within the City or any permit or agreement for occupying any other
property of the City.
F.
No waiver. The failure of the City to insist on timely performance
or compliance by any permittee holding a right-of-way use authorization
shall not constitute a waiver of the City's right to later insist
on timely performance or compliance by that permittee or any other
permittee holding such a right-of-way use authorization. The failure
of the City to enforce any provision of this chapter on any occasion
shall not operate as a waiver or estoppel of its right to enforce
any provision of this chapter on any other occasion, nor shall the
failure to enforce any prior ordinance or City Charter provision affecting
the right-of-way, any facilities, or any user or occupant of the right-of-way
act as a waiver or estoppel against enforcement of this chapter or
any other provision of applicable law.
G.
Policies and procedures. The City is authorized to establish such
written policies and procedures consistent with this chapter as the
City deems necessary for the implementation of this chapter.
H.
Police powers. The City, by granting any permit or taking any other
action pursuant to this chapter, does not waive, reduce, lessen or
impair the lawful police powers vested in the City under applicable
federal, state and local laws and regulations.
I.
Severability. If any section, subsection, sentence, clause, phrase
or word of this chapter is for any reason held illegal or invalid
by any court of competent jurisdiction, such provision shall be deemed
a separate, distinct and independent provision, and such holding shall
not render the remainder of this chapter invalid.
J.
When effective. This chapter shall become effective as provided by
law.
[Added 5-10-2022 by Ord. No. 09-2022]
A.
ANTENNA
APPLICANT
CO-LOCATION or CO-LOCATE
MICRO WIRELESS FACILITY
RELATED EQUIPMENT
SMALL WIRELESS COMMUNICATIONS FACILITY
(1)
(2)
(3)
TECHNICALLY FEASIBLE
UTILITY POLE
WIRELESS COMMUNICATIONS FACILITY (WCF)
Definitions.
An apparatus designed for the purpose of emitting radiofrequency
(RF) radiation, to be operated or operating from a fixed location
pursuant to Federal Communications Commission authorization, for the
provision of wireless service and any commingled information services.
Any person that applies for a wireless communication facility
building permit, zoning approval and/or permission to use the public
right-of-way (ROW) or other City-owned land or property.
To install, mount, maintain, modify or replace small WCFs
on an existing utility pole or other utility pole.
A small wireless communications facility that:
Any equipment serving or being used in conjunction with a
wireless communications facility or utility pole, including but not
limited to utility or transmission equipment, power supplies, generators,
batteries, or cables.
A wireless communications facility that meets the following
criteria.
The utility pole on which antenna facilities are mounted:
Each antenna associated with the deployment (excluding the related
equipment) is no more than three cubic feet in volume; and
All related equipment associated with the utility pole (excluding
antennas) is cumulatively no more than 28 cubic feet in volume.
By virtue of engineering or spectrum usage, the proposed
placement for a small wireless communications facility or its design
or site location can be implemented without a material reduction in
the functionality of the small wireless communications facility.
A pole or similar structure that is or may be used, in whole
or in part, by or for telecommunications, electric distribution, lighting,
traffic control, signage or a similar function or for co-location.
The term includes the vertical support structure for traffic lights
but does not include utility poles or horizontal structures to which
signal lights or other traffic control devices are attached.
An antenna facility or a utility pole that is used for the
provision of wireless service, whether such service is provided on
a stand-alone basis or commingled with other wireless communications
services.
B.
Regulations applicable to all small wireless communications facilities.
The following regulations shall apply to small wireless communications
facilities:
(1)
Application requirements.
(a)
Small WCFs inside the public rights-of-way are a permitted use in all City zoning districts, subject to the requirements of this § 263-6 and generally applicable permitting as required by the City Code. Applications for small WCFs shall be submitted to the City Zoning Officer.
(b)
Small WCFs outside the public rights-of-way are permitted by right in certain zoning districts subject to the requirements of § 300-87C of the City of Lancaster Zoning Ordinance and generally applicable permitting as required by the City Code. Applications for small WCFs shall be submitted to the City Zoning Officer.
(c)
An application for a small WCF shall include the following:
[1]
The location of the proposed small WCF, including latitudinal/longitudinal
coordinates and the nearest street address or cross street;
[2]
Documentation demonstrating compliance with the requirements of this § 263-6, including construction and engineering drawings;
[3]
Self-certification that the filing and approval of the application
is required by the applicant to provide additional capacity or coverage
for wireless services;
[4]
Documentation demonstrating compliance with the requirements
of the Small Wireless Communications Facility Design Manual and a
completed Small Wireless Communications Facility Design Checklist;
[5]
If the small WCF will require the installation of a new utility
pole, documentation showing that the applicant has made a good faith
determination that it cannot meet the service reliability and functional
objectives of the application by co-locating on an existing utility
pole. Such determination shall be based on whether the applicant can
meet the service objectives of the application by co-locating on an
existing utility pole on which:
[6]
Documentation showing that the small WCF does not materially
interfere with the safe operation of traffic control equipment, sight
lines or clear zones for transportation or pedestrians or compliance
with the Americans with Disabilities Act of 1990 (Public Law 101-336,
104 Stat. 327)[1] or similar federal or state standards regarding pedestrian
access or movement; and
[1]
Editor's Note: See 42 U.S.C.A. § 12101 et seq.
[7]
A report prepared by a qualified engineering expert which shows
that the small WCF will comply with all applicable FCC regulations,
including but not limited to those relating radiofrequency emissions.
(2)
Applications not required. The City shall not require an application
for:
(a)
Routine maintenance or repair work;
(b)
The replacement of a small WCF with a small WCF if it is substantially
similar or the same size or smaller and still qualifies as a small
WCF; or
(c)
The installation, placement, maintenance, operation or replacement
of micro wireless facilities that are strung on cables between existing
utility poles by or for an applicant that is authorized to occupy
the right-of-way, in compliance with the National Electrical Safety
Code.
(3)
Standard of care. Any small WCF shall be designed, constructed, operated,
maintained, repaired, modified and removed in strict compliance with
all current applicable technical, safety and safety-related codes,
including but not limited to the most recent editions of the Pennsylvania
Uniform Commercial Code, American National Standards Institute (ANSI)
Code, Electrical Code, as well as the industry standard applicable
to the utility pole. Any small WCF shall at all times be kept and
maintained in good condition, order and repair by qualified maintenance
and construction personnel, so that the same shall not endanger the
life of any person or any property in the City.
(4)
Location and development standards.
(a)
All small WCFs shall be installed in and maintained in a workmanlike
manner in compliance with the latest edition of the National Electric
Safety Code and all applicable laws, ordinances and regulations for
the protection of underground and overhead utility facilities.
(c)
All small WCFs shall be installed and maintained so as not to
obstruct nor hinder travel or public safety within the right-of-way,
damage or interfere with other utility facilities located in the right-of-way
or interfere with another utility's use of the utility's
facilities located or to be located within the right-of-way.
(5)
Design standards. All small WCFs in the City shall comply with the
requirements of the City Small Wireless Communications Facility Design
Manual. A copy of such shall be kept on file at the City Department
of Community Development.
(6)
Permit required for modifications. To the extent permissible under
applicable state and federal law, any applicant proposing the modification
of an existing small WCF which increases the overall height of such
utility pole shall first obtain a building permit from the City. Nonroutine
modifications shall be prohibited without such permit.
(7)
Engineer inspection. Prior to the issuance of a building permit and/or
a pole permit authorizing construction and erection of a small WCF,
a structural engineer registered in Pennsylvania shall issue to the
City a written certification of the proposed utility pole's ability
to meet the structural standards offered by either the Electronic
Industries Association or the Telecommunication Industry Association
and certify the proper construction of the foundation and the erection
of the structure. This certification shall be provided to the Zoning
Officer, at a minimum, be made as a condition attached to any approval
given such that the certification be provided prior to issuance of
any building permits.
(8)
Time, place and manner. The City shall determine the time, place
and manner of construction, maintenance, repair and/or removal of
all small WCFs in the ROW based on public safety, traffic management,
physical burden on the ROW, and related considerations.
(9)
Third-party property. Where a small WCF is proposed for co-location
on a utility pole, located on private property, or other property
that is not owned by the applicant, the applicant shall present evidence
to the City Zoning Officer that the owner of the utility pole has
authorized construction of the proposed small WCF.
(10)
Historic property and buildings. No small WCF may be located
within 100 feet of any property, or on a building or structure that
is listed on either the National or Pennsylvania Registers of Historic
Places, or eligible to be so listed. All applications for small WCFs
that are located in the Heritage Conservation District shall be reviewed
by the City of Lancaster Historic Preservation Specialist to ensure
that the stealth technology chosen for the proposed structure is appropriate
and conforms to City requirements.
(11)
Graffiti. Any graffiti on a small WCF, including the utility
pole and any related equipment, shall be removed at the sole expense
of the owner within 30 days of notification by the City.
(12)
Timing of approval.
(a)
Within 10 calendar days of the date that an application for
a small WCF is filed with the City Zoning Officer, the City shall
notify the applicant in writing of any information that may be required
to complete such application.
(b)
Within 60 days of receipt of an application for co-location
of a small WCF on a preexisting utility pole, and subject to applicable
tolling procedures as established by federal law, the City Zoning
Officer shall make a final decision on whether to approve the application
and shall notify the applicant in writing of such decision.
(c)
Within 90 days of receipt of an application for a small WCF
requiring the installation of a new or replacement utility pole, and
subject to applicable tolling procedures as established by federal
law, the City Zoning Officer shall make a final decision on whether
to approve the application and shall notify the applicant in writing
of such decision.
(d)
If the City denies an application for a small WCF, the City
shall provide the applicant with written documentation of the basis
for denial, including the specific provisions of the City Code on
which the denial was based, within five business days of the denial.
(e)
The applicant may cure the deficiencies identified by the City
and resubmit the application within 30 days of receiving the written
basis for the denial without being required to pay an additional application
fee. The City shall approve or deny the revised application within
30 days of the application being resubmitted for review.
(14)
Completion of work. All construction work relating to the small WCF for which a permit is granted under this § 263-6 shall be completed within one year of the date of issuance of the permit.
(15)
Repair and restoration.
(a)
The applicant shall repair all damage to the ROW or any other
land so disturbed, directly caused by the activities of the applicant
or the applicant's contractors and return the ROW to as good
of condition as it existed prior to any work being done in the ROW
by the applicant or the applicant's contractors.
(b)
If the applicant fails to make the repairs required by the City
within 30 days after written notice, the City may perform those repairs
and charge the applicant the reasonable, documented cost of the repairs
plus a penalty of $500.
(c)
The City may suspend the ability of the applicant to receive
new permits until the applicant has paid the amount assessed for the
repair costs and the assessed penalty.
(16)
Relocation or removal of facilities.
(a)
Within 60 days of suspension or revocation of a permit due to
noncompliance with the requirements of the City Code, the applicant
shall remove the small WCF and any related equipment, including the
utility pole if the applicant's WCF(s) are the only facilities
on the utility pole.
(b)
Within 90 days of the end of a permit term, the applicant shall
remove the small WCF and any related equipment, including the utility
pole if the applicant's WCF(s) are the only facilities on the
utility pole.
(c)
Following written notice from the City, or such longer period
as the City determines is reasonably necessary or such shorter period
in the case of an emergency, the applicant shall, at its own expense,
temporarily or permanently remove, relocate, change or alter the position
of any small WCF when the City, consistent with its police powers
and applicable Public Utility Commission regulations, shall determine
that such removal, relocation, change or alteration is reasonably
necessary under the following circumstances:
[1]
The construction, repair, maintenance or installation of any
City or other public improvement in the right-of-way;
[2]
The operations of the City or other governmental entity in the
right-of-way;
[3]
Vacation of a street or road or the release of a utility easement;
or
[4]
An emergency as determined by the City.
(17)
Reimbursement for ROW use. In addition to permit fees as described
in this section, every small WCF in the ROW is subject to the City's
right to fix annually a fair and reasonable fee to be paid for use
and occupancy of the ROW. Such compensation for ROW use shall be directly
related to the City's actual ROW management costs including,
but not limited to, the costs of the administration and performance
of all reviewing, inspecting, permitting, supervising and other ROW
management activities by the City. The owner of each small WCF shall
pay an annual fee to the City to compensate the City for the City's
costs incurred in connection with the activities described above.
Such fees shall comply with state law and the applicable requirements
of the Federal Communications Commission.
(18)
Insurance. Each person that owns or operates a small WCF shall
provide the City with a certificate of insurance, naming the City
as an additional insured, and evidencing general liability coverage
in the minimum amount of $1,000,000 per occurrence and property damage
coverage in the minimum amount of $1,000,000 per occurrence covering
the small WCF.
(19)
Indemnification. The owner of any small WCF in the ROW shall
fully indemnify and hold the City and its officers, employees and
agents harmless against any claims, lawsuits, judgments, costs, liens,
expenses or fees or any other damages caused by the act, error or
omission of the owner of the WCF or its officers, agents, employees,
directors, contractors or subcontractors while installing, repairing
or maintaining small WCFs or utility poles within the ROW. The owner
of a small WCF shall not be required to indemnify for an act of negligence
or willful misconduct by the City, its elected or appointed officials,
employees or agents.
(20)
Contractors and subcontractors. An applicant shall ensure that
a contractor or subcontractor performing construction, reconstruction,
demolition, repair or maintenance work on a small WCF meets and attests
to all of the following requirements:
(a)
The contractor or subcontractor maintains all valid licenses,
registration or certificates required by the federal government, the
Commonwealth of Pennsylvania, or the City that is necessary to do
business or perform the applicable work.
(b)
The contractor or subcontractor maintains compliance with the
act of June 2, 1915 (P.L. 736, No. 338), known as the Workers'
Compensation Act,[3] the act of December 5, 1936 (2nd Sp. Sess., 1937 P.L.
2897, No. 1), known as the Unemployment Compensation Law,[4] and all applicable bonding and liability insurance requirements.
(c)
The contractor or subcontractor has not defaulted on a project,
declared bankruptcy, been debarred or suspended on a project by the
federal government, the Commonwealth of Pennsylvania, or any local
governmental entity within the previous three years.
(d)
The contractor or subcontractor has not been convicted of a
misdemeanor or felony relating to the performance or operation of
the business of the contractor or subcontractor within the previous
10 years.
(e)
The contractor or subcontractor has completed a minimum of the
United States Occupational Safety and Health Administration's
ten-hour safety training course or similar training sufficient to
prepare workers for any hazards that may be encountered during their
work on the small WCF.
