[Adopted 12-17-2013 by Ord. No. 2013-O-18 (Ch. 21, Part 4, of the 1995
Code of Ordinances)]
This article shall be known as the "Warrington Township Right-of-Way
Management Ordinance."
Terms used in this article shall have the following meanings.
Unless otherwise expressly stated, terms not defined in this article
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 authorization required pursuant to the Cable
Act and the Township Code for any cable franchise issued by the Township.
Right-of-way use authorization pursuant to this article authorizing
a person to own, construct, operate and maintain a cable system to
provide cable service within the Township.
A person providing or offering to provide cable service over
a cable system within the Township 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 Township;
but such term does not include:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
A facility that serves subscribers without using any right-of-way;
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;
An open video system that complies with 47 U.S.C. § 573;
or
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 Township 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.
The Communications Act of 1934, 47 U.S.C. § 151 et seq., as amended and as hereafter amended.
A condition that:
Conduit, pipes, cables, wires, lines, towers, optic fiber,
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. The term "facility"
or "facilities" does not include "wireless telecommunications facilities,"
as defined below.
A right-of-way use authorization pursuant to this article
that authorizes a person to own, construct, operate and maintain a
cable system to provide cable service within the Township.
A cable franchise agreement.
A person that is issued a franchise by the Township.
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.
All nontower wireless communications facilities, including,
but not limited to, antennas and related equipment. Nontower WCFs
shall not include support structures for antennas and related equipment.
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 Township 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.
The recipient of a right-of-way use permit, cable franchise or other right-of-way use authorization that is issued by the Township pursuant to this article, and persons holding existing franchises, special ordinances, or other authorizations that are subject to the transitional provisions set forth in § 294-31.
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, provided that "person"
does not include or apply to the Township or to any department or
agency of the Township.
The written regulations, standards, operations and/or courses
of action established by the Township to implement the provisions
of this article.
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
Code as of the effective date of this article, and as hereafter amended.[1]
Written agreement required and entered into pursuant to this
article giving a person the nonexclusive right to own, construct,
operate and maintain facilities in any right-of-way in the Township
for the specific purposes set forth in the agreement.
A right-of-way use permit or cable franchise issued pursuant
to this article.
A right-of-way use permit issued pursuant to this article.
The surface of and space above and below any real property
in the Township in which the Township 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
Township, 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 Township.
The phrase "in the right(s)-of-way" means "in, on, over, along, above
and/or under the right(s)-of-way."
Any telecommunications service, cable 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 Township,
including, but not limited to, installation of underground conduit,
ducts, manholes, handholes, and/or appurtenances thereto, or any other
type of underground facilities; for construction or erection of poles;
for installing fiber-optic or other cable(s) in already installed
conduit or ducts; for maintenance activities that involve such construction,
installation, or erection; or otherwise for the installation or construction
of facilities in any right-of-way.
Any cable 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 Township 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.
Any structure that is used for the purpose of supporting
one or more antennas, including, but not limited to, self-supporting
lattice towers, guy towers, monopoles, and hub facilities for distributed
antenna systems.
The Code of the Township of Warrington, Bucks County, Pennsylvania.
The person engaged by the Township to perform engineering
services on behalf of the Township.
All real property now or hereafter owned by the Township,
whether in fee ownership or other interest.
All construction work performed by the Township 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 Township or for
which the Township is responsible.
As applied to a right-of-way use permit and/or the facilities
authorized thereby: the assignment, transfer, or other disposition,
directly or indirectly, by sale, lease, merger, consolidation, or
other act, by operation of law or otherwise, of any interest, in whole
or in part, in the ROW use authorization, including, but not limited
to, actual control over the ROW use authorization. Any transaction
(whether between affiliated entities or unaffiliated entities) which
results in any change, in any manner, of the ownership or control
(including, but not limited to, financial control and actual control)
of the permittee, the facilities authorized thereby, or the capacity,
transmission capacity, or bandwidth of the facilities or system, or
such ownership or control of any affiliated entities having ownership
or control of the permittee, where such ownership or control is 25%
or more of the total ownership or control interest, shall be considered
a transfer of interest.
Utility and telecommunications facilities located under the
surface of the ground, excluding the underground foundations or supports
for aerial facilities.
The antennas, nodes, control boxes, towers, poles, conduits,
ducts, pedestals, electronics and other equipment used for the purpose
of transmitting, receiving, distributing, providing, or accommodating
wireless telecommunications services.
[1]
Editor's Note: See 52 Pa. Code § 56.2.
A.
Right-of-way use authorization. Except as otherwise provided in this
article, no person shall own, construct, operate and/or maintain facilities
in any right-of-way of the Township to provide or to enable others
to provide services to persons or areas in the Township or outside
the Township 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.
B.
Right-of-way use agreement. No ROW use authorization shall be effective,
nor shall the applicant receive any rights, benefits, or privileges
pursuant to the authorization, unless or until the applicant and the
Township have executed a right-of-way use agreement which is substantially
the same as Exhibit A and sets forth the particular terms and conditions
under which the authorization will be issued. (ROW use agreement attached
as Exhibit A.[1]) A form of ROW use agreement shall be submitted to the
applicant consistent with this article and applicable law. The ROW
use agreement shall be deemed to be incorporated in and made a part
of the ROW use authorization upon execution by the applicant and the
Township. A cable franchise agreement shall satisfy the requirement
for a ROW use agreement with respect to cable operators or OVS operators
in the Township.
[1]
Editor's Note: Exhibit A is on file in the Township offices.
C.
Permit required. Pursuant to this article, all persons that own,
construct and/or maintain facilities in any public right-of-way shall
obtain a right-of-way use permit. If any such person 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 Township. Such permittee shall pay the higher amount of
the two fees to the Township.
A.
Permit required; term and scope of permit.
(1)
No person, 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 Township may from time to time establish and shall otherwise
conform to the requirements of this article 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 Township.
(2)
Any person wishing to construct, operate and/or maintain wireless telecommunications facilities, such as tower-based WCFs or nontower WCFs, that occupy the rights-of-way is not required to obtain a ROW use permit pursuant to this article but is required to comply with all of the applicable terms and conditions of the Township's Wireless Telecommunications Facilities Ordinance, codified at Article XXXVIII, Wireless Communications Facilities, in Chapter 370, Zoning.
B.
Approval by Township. A ROW use permit shall be authorized only by
the Township and shall not become effective unless or until so authorized.
In addition to the other requirements contained herein, the applicant
shall demonstrate:
(1)
That it has a history of compliance with applicable law and regulation
relating to the management, construction and maintenance of facilities
in streets and rights-of-way, wherever located.
(2)
That it possesses all licenses, permits, authorizations, and other
permissions required by the Federal Communications Commission, the
PUC, the Commonwealth of Pennsylvania and the Township as a condition
of its using the right-of-way and furnishing the services and operating
the facilities proposed by the applicant.
C.
Security. Each permittee shall furnish to the Township, at the permittee's
expense, a bond or other form of financial security, in such form
as required by the Township in consultation with the Township Solicitor.
Such bond shall be executed by a reputable surety company licensed
to do business in the Commonwealth of Pennsylvania. The letter of
credit or other form of financial security shall be in the amount
of $50,000. The security shall be a continuing obligation during the
entire term of the right-of-way use permit.
D.
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 Township 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 Township by regulation.
The Township shall be designated as an additional insured under each
of the insurance policies required by this section. The permittee
shall not cancel any required insurance policy without obtaining alternative
insurance in conformance with this section. The permittee shall provide
the Township with at least 30 days' advance written notice of any
material changes or cancellation of any required insurance policy.
E.
Indemnification. Each permittee 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 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 Township 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 the 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.
F.
Application for right-of-way use permit.
(1)
Application for a ROW use permit shall be in such form and shall
include such information as the Township determines by regulation.
Within a reasonable period of time not to exceed 60 days after receiving
a complete application hereunder, the Township 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 the Township Board of Supervisors.
The application fee shall be sufficient to reimburse the Township
for the actual costs of Township staff time and other resources that
are required for the receipt, review, and disposition of the application
and may be adjusted by resolution of the Township Board of Supervisors.
(2)
A right-of-way use permit shall not become effective unless or until
the applicant and the Township have executed a right-of-way use agreement
that is substantially the same as that attached as Exhibit A[1] and sets forth the particular terms and conditions under
which the authorization is issued. Such agreement shall be deemed
to be incorporated in and made a part of the ROW use permit upon execution
by both the applicant and the Township.
[1]
Editor's Note: Exhibit A is on file in the Township offices.
G.
Renewal of right-of-way use permit. A person desiring to renew a
ROW use permit prior to the expiration of the permit shall file an
application with the Township for renewal of its authorization, which
shall include the information and documents required for an initial
application and other material information required by the Township
by regulation. Any renewal of a permit shall not become effective
unless or until the applicant and the Township have executed a right-of-way
use agreement that is substantially the same as that attached here
as Exhibit A[2] and sets forth the terms and conditions under which the
authorization is issued.
(1)
PUC-regulated utilities. The Township shall renew the permit of a PUC-regulated utility unless the PUC has revoked the utility's certificate of public convenience and necessity and/or the utility has materially violated a provision of this article and has not corrected the violation after notice and opportunity to cure pursuant to § 294-36 of this article. 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 Township shall not unreasonably delay or deny the issuance of a renewal permit.
(2)
Non-PUC-regulated entities. The Township 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 Township
shall not unreasonably delay or deny the issuance of a renewal permit.
[2]
Editor's Note: Exhibit A is on file in the Township offices.
H.
As-built maps. As the Township controls and maintains the rights-of-way
for the benefit of its citizens, it is the responsibility of the Township
to ensure that such rights-of-way meet the highest possible public
safety standards. As such, the Township 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 Township two paper copies and
one electronic copy of an 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
Township 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 Township 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 P.S. § 67.101 et seq.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
I.
Right to inspect.
(1)
PUC-regulated utilities. Pursuant to the issuance of a certificate
of public convenience and necessity by the PUC, the Township shall
conduct inspections of all PUC-regulated facilities in order to ensure
that the permittee's facilities conform to the standards set forth
by the Public Utilities Commission. Such inspections shall be limited
to establishing whether facilities meet PUC standards for construction
and maintenance and such Township construction and design standards
as relate to the opening of, construction in, and closing of Township
streets, curbs, and sidewalks, as provided under 15 Pa.C.S.A. § 1511(e).
Upon request of the Township, the permittee shall furnish a copy of
the PUC-approved construction and maintenance standards that it utilizes
in its right-of-way activities.
(2)
Non-PUC-regulated entities. The Township 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 article and other applicable laws and regulations. Permittees
are required to cooperate with all such inspections and to provide
information requested by the Township as part of the inspection.
J.
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 Township'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 Township determines
appropriate; or affect the Township'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
and the right-of-way use agreement; or be construed as any warranty
of title.
K.
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. It is an affirmative violation
of this article to post bills, signs and other advertisements upon
utility poles or private property without the owner's consent.
L.
Substantially similar terms. ROW use permits and renewals entered
into after the effective date of this article 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.
A.
Persons already authorized to use the right-of-way. Any person holding
a permit or other authorization from the Township 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: (A) the conclusion of the present
term of its existing authorization, or (B) 120 days after the effective
date of this article; 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 article within 90 days after the effective
date of this article and shall be subject to the terms and conditions
of this article.
B.
Pending applications. Applications for an authorization to occupy
or use the right-of-way that are pending on the effective date of
this article shall be subject to this article. A person with a pending
application shall submit additional information to comply with the
requirements of this article and applicable regulations of the Township
governing applications within 30 days from the effective date of this
article.
C.
Persons operating without right-of-way use authorization. Any person
that owns or operates 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 article, shall
have 90 days from the effective date of this article to file one or
more applications for a ROW use authorization. Any person timely filing
such an application shall not be subject to penalties for failure
to hold such a ROW use authorization, provided 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 article, or Township ordinances or
regulations, and nothing herein shall prevent the Township from requiring
removal of any facilities installed in violation of this article or
Township ordinances or regulations.
A.
Franchise required.
(1)
No person may own, construct, operate or maintain a cable system
or open video system within the Township, 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
Township.
(2)
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 article and shall also require
a right-of-way use permit pursuant to this article.
B.
Effect of authorization.
(1)
A cable franchise shall not confer any authority to provide any form
or type of telecommunications service or information service in addition
to the cable service authorized by the franchise. To the extent permitted
by law, a separate right-of-way use permit pursuant to this article,
in addition to the cable 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.
(2)
In the event of a conflict between the provisions of this article
and a cable franchise agreement in effect on the effective date of
this article, the provisions of the cable franchise agreement shall
govern.
A.
Alteration or modification of existing facilities. The permittee
must notify the Township upon material 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.
B.
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 Township within 60 days of such changes.
A.
Street opening permits. No person shall perform any street excavation in the rights-of-way without first obtaining a street opening permit and paying a permit fee pursuant to Article I of this chapter. No person shall perform curb and/or sidewalk construction replacement or repair without first obtaining a permit and paying a permit fee pursuant to § 294-4. The procurement of a street opening permit shall only be necessary when the proposed street excavation and/or construction affects Township streets; it shall not apply to any construction or excavation activities on state roads.
B.
Construction standards.
(1)
PUC-regulated utilities. Construction standards shall include those
determined by the Public Utilities Commission, as well as such Township
construction and design standards as relate to the opening of, construction
in, and closing of Township streets, curbs, and sidewalks, as provided
under 15 Pa.C.S.A. § 1511(e). All PUC-regulated utilities
must provide the Township with documentation evidencing the Public
Utility Commission's approval of all proposed construction plans within
the rights-of-way. Upon request of the Township, the utility must
provide the PUC-approved construction guidelines pursuant to which
it operates.
(2)
Non-PUC-regulated entities. All construction, installation, maintenance,
and operation of facilities in the ROW shall conform to the requirements
of the following publications, as from time to time amended: the Pennsylvania
Township of Transportation Publication Form 408, the Township of Warrington
Streets and Sidewalk Regulations, the National Electrical Code, and
the National Electrical Safety Code (collectively, the "Township of
Warrington 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 article.
C.
Security. Each person performing construction in the ROW shall obtain
a performance bond in the amount and as required by the policies and
procedures and regulations of the Township.
D.
Right to inspect facilities.
(1)
PUC-regulated utilities. The Township may inspect facilities in the
rights-of-way to ensure continuous compliance with the construction
and maintenance regulations of the Public Utilities Commission, as
well as such Township construction and design standards as relate
to the opening of, construction in, and closing of Township streets,
curbs, and sidewalks, as provided under 15 Pa.C.S.A. § 1511(e).
Upon request of the Township, the permittee shall provide the Township
with the PUC-approved construction and maintenance standards pursuant
to which it operates in the rights-of-way.
(2)
Non-PUC-regulated entities. The Township may inspect the construction
or installation of any facilities, 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 article and other applicable laws
and regulations. Permittees are required to cooperate with all such
inspections and to provide information requested by the Township as
part of the inspection.
E.
Recently constructed streets. No street opening permit shall be issued
to cut any Township 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 Township. The Township may grant an exception
to this section in the case of an emergency.
F.
Relocation or removal of facilities. Within 60 days following written
notice from the Township, or such longer period as the Township determines
is reasonably necessary or such shorter period in the case of an emergency,
a permittee shall, at its own expense, temporarily or permanently
remove, relocate, change or alter the position of any facilities within
the right-of-way, excluding those underground, whenever the Township,
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 Township or other public improvement
in the right-of-way; the operations of the Township 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 Township.
(1)
PUC-regulated utilities. All public utilities must relocate and remove
facilities consistent with the regulations and standards of the PUC.
(2)
Non-PUC-regulated utilities. All entities not regulated by the PUC
must relocate and remove facilities consistent with the applicable
regulations of the Township.
G.
Coordination of construction activities. By December 1 of each year,
each right-of-way use permittee shall provide the Township 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 construction activities the permittee is committed to perform
within the next year.
H.
Abandonment. Except as otherwise provided for under this article,
a person may abandon any facilities or property in the rights-of-way
only after receiving written approval of the Township, following written
notice to the Township of the intent to abandon. If the Township receives
notice of intent to abandon from such a person, or if the Township
determines (after investigation, notice to the owner or other responsible
person, and an opportunity to be heard) that facilities or property
are abandoned, the Township may determine that the safety, functioning
or use of the right-of-way and/or other facilities in the right-of-way
will be adversely affected by the abandonment. If the Township makes
this determination, the Township may require the person to remove
the facilities and property by a specified date or the Township may
remove the facilities and property and charge the person for all costs
and expenses associated with such removal.
I.
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 the permittee, including any contractor working
for the permittee, the permittee shall promptly repair and restore
such property within 10 business days. The 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.[1]
[1]
Editor's Note: See 73 P.S. § 176 et seq.
J.
Facilities maps. Each person issued a street opening permit shall
submit to the Township, not later than 30 days after completion of
the permitted construction (or any part thereof, if required by the
Township), two paper copies and one electronic copy of an 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 Township in the policies and procedures. If the maps are not
provided electronically in the required format, then the person shall
reimburse the Township 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 P.S. § 67.101
et seq.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
K.
Field marking. Each permittee shall field mark the locations of its
underground facilities upon request by other permittees or the Township,
consistent with the requirements of the Pennsylvania One Call System
and at no cost to the Township.
Annual right-of-way management fee. Each permittee that is not
a franchisee, including Township ROW permittees, shall pay an annual
fee to the Township to compensate the Township for its costs incurred
in connection with reviewing, inspecting and supervising the ongoing
use and occupancy of the right-of-way. The annual right-of-way maintenance
fee shall be determined by the Township and authorized by resolution
of the Township Board of Supervisors and shall be based on the Township's
actual ROW maintenance costs as applied to such permittee. 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 Township; such permittee shall pay the higher
of the two fees to the Township.
A.
Penalties. Any person who violates or permits a violation of this
article shall, upon conviction in a summary proceeding brought before
a Magisterial District Judge under the Pennsylvania Rules of Criminal
Procedure, be guilty of a summary offense and shall be punishable
by a fine of not more than $1,000, plus costs of prosecution. In default
of payment thereof, the defendant may be sentenced to imprisonment
for a term not exceeding 90 days. Each day or portion thereof that
such violation continues or is permitted to continue shall constitute
a separate offense, and each section of this article that is violated
shall also constitute a separate offense.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
B.
Determination of violation. In the event a determination is made
that a person has violated any provision of this article, a right-of-way
use permit or a right-of-way use agreement, 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 Township may, in its reasonable
judgment, extend the time period to cure, provided 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 Township
may take any and all actions authorized by this article and/or Pennsylvania
law and regulations.
A.
Proprietary information. If a permittee considers information it
is obligated to provide to the Township under this article to be a
business or trade secret or otherwise proprietary or confidential
in nature, and desires to protect the information from disclosure,
then the permittee shall mark such information as proprietary and
confidential. Subject to the requirements of the Right to Know Law
of 2008, 65 P.S. § 67.101 et seq., as amended, and other
applicable law, the Township shall exercise reasonable good faith
efforts to protect such proprietary and confidential information that
is so marked from disclosure. The Township shall provide notice to
the permittee in the following circumstances: (A) if the Township
receives a request for disclosure of such proprietary and confidential
information and the Township Solicitor determines that the information
is or may be subject to disclosure under applicable law; or (B) if
the Township Solicitor determines that the information should be disclosed
in relation to its enforcement of this article or the exercise of
its police or regulatory powers. In the event the permittee does not
obtain a protective order barring disclosure of the information from
a court of competent jurisdiction within 30 days following receipt
of the Township's notice, then the Township may disclose the information
without further notice to the permittee.
B.
Leased facilities. Subject to the provisions of this article and
with prior written approval of the Township, a permittee shall have
the right to furnish any facilities for which it has the applicable
authorization 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 permittee furnishing its facilities to another shall first deliver
to the Township written verification 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.
(2)
The person to which the facilities are furnished shall comply with
all of the requirements of this article and other applicable laws
and policies and procedures.
C.
Duty to provide information. Within 10 days of a written request
from the Township, each permittee shall furnish the Township with
information sufficient to demonstrate the following: that the permittee
has complied with all requirements of this article; that all fees
and taxes due the Township 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 article.
D.
Right to inspect records. The Township 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 with that relate directly to the terms and conditions
of this article.
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 Township for the privilege of transacting and carrying on a
business within the Township or any permit or agreement for occupying
any other property of the Township.
F.
No waiver. The failure of the Township to insist on timely performance
or compliance by any permittee holding a right-of-way use authorization
shall not constitute a waiver of the Township'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 Township to enforce any provision of this article on any occasion
shall not operate as a waiver or estoppel of its right to enforce
any provision of this article on any other occasion, nor shall the
failure to enforce any prior ordinance or Township 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 article or any other provision of applicable law.
G.
Policies and procedures. The Township is authorized to establish
such written policies and procedures consistent with this article
as the Township deems necessary for the implementation of this article.
H.
Police powers. The Township, by granting any permit or taking any
other action pursuant to this article, does not waive, reduce, lessen
or impair the lawful police powers vested in the Township under applicable
federal state and local laws and regulations.
I.
Effective date. This article shall become effective on the 30th day
following enactment by the Board of Supervisors.
