[Ord. No. 565, 5/18/2016]
The purpose of this Telecommunications Right-of-Way Ordinance
("ordinance") is to:
1.
Assist the Township of Lower Swatara ("Township") in managing its
public rights-of-way with respect to telecommunications services providers
in accordance with applicable law;
2.
Regulate the erection, construction, reconstruction, installation,
operation, maintenance, repair and removal of a telecommunications
system in, upon, along, across, above, over, under or in any manner
connected with the public rights-of-way of the Township, as now or
in the future may exist; and
3.
Provide the Township with appropriate compensation for occupation
and use of the Township's rights-of-way for a telecommunications
system and for the cost of regulating providers of telecommunications
services consistent with this Part and applicable law.
[Ord. No. 565, 5/18/2016]
Unless the context specifically indicates otherwise, the meaning
of the terms used in this Part shall be as follows:
The person who has applied for a right-of-way permit or a
construction permit.
The form prescribed by the Township, which the applicant
must complete in order to obtain a right-of-way or construction permit.
The building, erection, or installation in, on, over or under
a right-of-way. It does not include maintenance or repair of existing
aerial cables or equipment in a right-of-way or a single line extension
from equipment in the right-of-way.
The written authorization granted by the Township to an applicant
in order to perform construction in a right-of-way. This is a non-UCC-related
permit.
A condition that poses a clear and immediate danger to public
safety, including damage of life, health, or a significant loss of
property.
Any tangible property located or proposed to be located in
a right-of-way, including, but not be limited to, wires, lines, cables,
conduits, pipes, supporting structures or other facilities.
Any person who has specialized skill or knowledge in legal,
technical, engineering, construction or related fields and who provides
assistance to the Township regarding any matter included in this Part.
Work of a minor nature that will keep an existing condition
from failure or decline.
Any individual, firm, partnership, association, corporation,
company or other business entity not regulated as a public utility
by the Public Utility Commission.
The person who has obtained a right-of-way permit.
Any individual, firm, partnership, association, corporation,
company or other business entity, whether such person is PUC-regulated
or non-PUC-regulated.
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.
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 process by which a right-of-way is returned to a state
that is as good or better than its condition was prior to the construction.
The surface and space in, on, over, across, along, under
and above any real property in which the Township has an interest
in law or in equity, including, but not limited to, any public street,
boulevard, avenue, road, highway, easement, bridge, freeway, alley,
court or any other place which is under the jurisdiction of the Township,
other than real property owned in fee by the Township.
A written authorization granted by the Township to an applicant
for use of the rights-of-way in the Township for the installation,
operation and/or maintenance of equipment.
The transmission, between or among points specified by the
user, of information of the user's choosing, without change in
form or content of the information as sent and received.
The offering of telecommunications for a fee directly to
the public, or to users who will make telecommunications available
directly to the public, regardless of the facilities used.
A system that offers telecommunications services.
All equipment that is located wholly or partially underneath
a right-of-way.
[Ord. No. 565, 5/18/2016]
1.
All PUC-regulated persons shall be deemed to have a license from
the Township under this Part to occupy the right-of-way.
2.
No non-PUC-regulated person shall enter upon or occupy any right-of-way
for the purpose of installing, constructing, maintaining or operating
a telecommunications system without first having obtained a right-of-way
permit.
3.
Before a right-of-way permit is issued to a non-PUC-regulated person,
the holder of or applicant for a right-of-way permit shall have applied
for any and all regulatory approvals, permits or authorizations from
the appropriate federal and state authorities. Upon the request of
the Township, the applicant shall submit written evidence of its applications
for or receipt of all such approvals, permits or authorizations.
4.
Nothing in this Part shall be construed as a waiver of any other
ordinances or regulations of the Township or the Township's right
to require prospective or current right-of-way permit holders to secure
and remit payment for any and all other required permits or authorizations.
[Ord. No. 565, 5/18/2016]
1.
A right-of-way permit for non-PUC-regulated persons shall only be
granted after an applicant has completed an application in the form
that has been prescribed by the Township, which form may be revised
from time to time. Upon request, an applicant shall be provided with
a copy of the then-current application for a right-of-way permit.
The application shall request information regarding the applicant's
proposed or actual physical use and occupation of the rights-of-way.
The applicant shall provide specific information regarding the equipment
it proposes to place or currently maintains in the rights-of-way.
If the completed application does not fully provide such requested
information, the Township may request such additional information
as is necessary to enable it to make a determination regarding the
physical use and occupation of the rights-of-way by the applicant.
For purposes of determining the commencement of the Township's
review process, the application shall be deemed to have been filed
on the day all information requested by the Township has been received
by the Township.
2.
Upon the filing of a fully completed application to the Township
and the accompanying fee, the Township shall review the application
as follows. This fee will be refunded in the event the application
is denied. If the application is granted, the application fee will
apply to the full term of the right-of-way permit of one year. The
Township shall grant or deny such applications within 45 days of its
filing. If the Township denies the application, it shall provide a
written response to the applicant explaining the basis for denial.
If the Township fails to grant or reject such application within the
time period specified above, the application shall be deemed approved.
In each case, the Township shall review the application to determine
whether such use would have a detrimental effect on public safety
as it relates to the rights-of-way or would place an undue physical
burden on the rights-of-way.
3.
In considering an application, the Township may use such experts
as it deems appropriate to make an informed decision. In the event
the Township deems it necessary to employ an outside expert or experts
to advise the Township with respect to a particular application, the
reasonable costs of such expert or experts shall be borne by the applicant.
Such fees will be set by resolution and such fees, if any, must be
paid prior to permit issuance.
4.
A person shall have no recourse whatsoever against the Township for
any loss, cost, expense or damage arising out of the failure to grant
a permit. By applying for a permit, the applicant acknowledges that
it has not been induced to apply for or accept a permit by any understanding
or promise or other statement, whether verbal or written, by or on
behalf of the Township or by any other third person concerning any
term or condition of a permit not expressed in this Part.
[Ord. No. 565, 5/18/2016]
The right-of-way permit for non-PUC-regulated persons shall
be issued for a period of one year. Permit holders shall apply for
a renewal of a right-of-way permit at least 60 days prior to its expiration.
[Ord. No. 565, 5/18/2016]
1.
Except in the case of an emergency, before commencing any construction
in the rights-of-way, a person shall apply for and obtain a construction
permit. A construction permit shall only be granted after an applicant
has completed an application in the form that has been prescribed
by the Township, which form may be revised from time to time. Upon
request, an applicant shall be provided with a copy of the current
application for a construction permit. Such application shall request
detailed plans of the proposed construction activity. Such plans shall
describe: (a) the type of construction activity; (b) the equipment
proposed to be installed or erected; (c) the specific locations of
the construction activity; and (d) the scheduled beginning and ending
dates of all planned construction. For purposes of determining the
commencement of the Township's review process, the application
shall be deemed to have been filed on the day all information requested
by the Township has been received by the Township.
2.
Upon the filing of a fully completed application and the accompanying
fee, the Township shall review such information and either grant or
deny a construction permit within 45 days. If the Township denies
the construction permit, the Township will provide a written response
to the applicant explaining the basis of the denial. If the Township
fails to grant or deny the construction permit within the time period
specified above, the application shall be deemed granted. In each
case, the Township shall review the application to determine whether
such construction would have a detrimental impact on public safety
as it relates to the rights-of-way. The Township may impose conditions
on the construction permit regulating the times, locations, and manner
of construction to preserve effective traffic flow, prevent hazardous
road conditions and/or minimize noise impacts.
[Ord. No. 565, 5/18/2016]
1.
Each person with equipment in the right-of-way shall pay an annual
right-of-way permit management fee to compensate the Township for
its costs incurred in connection with the ongoing use and occupancy
of the right-of-way. Such annual right-of-way permit management fee
along with all other fees related to this Part shall be determined
by the Township and authorized by resolution of the Township Board
of Commissioners.
A.
This fee is directly related to the Township's costs in reviewing
the application and managing the rights-of-way with respect to each
permit holder. Such costs in managing the rights-of-way include, but
are not limited to: (1) costs of maintaining the rights-of-way; (2)
costs of degradation of streets and right-of-way property; (3) administrative
costs related to the rights-of-way; and (4) traffic control costs
pertaining to work in the rights-of-way.
2.
Each applicant for a construction permit shall include with its application
an application fee in the amount as set by resolution. This fee is
directly related to the Township's costs in reviewing the application
and determining time, place and manner restrictions on the construction
activity. If the application for a construction permit is denied,
this fee shall not be refunded. If the application is granted, then
the applicant shall also pay, within 30 days of the presentation of
a statement, the Township's actual costs directly related to
the applicant's construction activity based on the hourly rate
established by resolution of the Township Board of Commissioners.
Such actual costs include, but are not limited to, costs of disruption
and rerouting of traffic, inspection costs and administrative costs.
3.
Extraordinary Expenses. In addition to the fees set forth above,
a person shall pay, within 30 days of the presentation of a statement,
any extraordinary or unusual expenses reasonably incurred by the Township
as a result of the person's use of the rights-of-way, provided,
unless in the case of emergency, that the Township notifies the person
of the expected expenses prior to them being incurred and provides
such person with an opportunity to mitigate such expenses. Examples
of extraordinary or unusual costs include, but are not limited to,
the cost of obtaining and operating a backhoe, dump truck or other
heavy equipment used to repair the right-of-way, overtime or special
pay for public safety and/or public works personnel and/or the cost
of hazardous waste cleanup or other emergency services. The statement
of such expenses presented to the person shall be directly related
to the Township's actual costs.
4.
Fee Considerations.
A.
Persons sharing the same conduit shall each pay a full fee;
B.
Persons sending signals over another permit holder's existing
line or a line that is leased to another and upon which fees are already
paid are not subject to additional fees; and
C.
Persons using the same line to provide cable television service and
to provide telecommunications services shall be subject to a cable
television franchise fee, but not a right-of-way permit management
fee. Such persons shall be subject to construction permit fees and/or
all other applicable fees as set forth in this Part and all other
ordinances and resolutions of the Township.
5.
In the event that payment of the fees is not made upon submission
of the renewal permit, the person shall pay a late payment penalty
of 2% per month of the total amount past due. Such penalty shall be
in lieu of any other monetary penalty.
[Ord. No. 565, 5/18/2016]
1.
The Township shall have the right to limit the placement of new or
additional equipment in the right-of-way if there is insufficient
space to reasonably accommodate all requests to occupy and use the
rights-of-way in a manner that is consistent with public safety. The
Township shall consider requests for occupying and using the rights-of-way
in the order of receipt of fully completed applications for right-of-way
permits. The Township shall strive, to the extent possible, to accommodate
all requests, but shall be guided by the physical condition of the
right-of-way and whether such use would have a detrimental effect
on public safety as it relates to the right-of-way.
2.
Any telecommunications systems and the equipment related thereto
located in the rights-of-way shall not interfere with any wired or
wireless telecommunications system being operated or managed by the
Township.
3.
The Township may inspect any telecommunications system located in
the rights-of-way in response to a complaint by a Township resident
or in case of an emergency.
[Ord. No. 565, 5/18/2016]
1.
Whenever a person or any of its subcontractors shall disturb any pavement, sidewalk or other public property in order to perform any underground activities, such person will fully comply with all applicable permits required by the Township and will fully comply by registering with Pennsylvania's "One-Call" system pursuant to 73 P.S. § 176 et seq. Such person shall provide the Township with information showing planned locations and reference points for equipment to be installed. Each person shall perform construction activity in a manner consistent and in compliance with the plans it submitted to the Township pursuant to § 21-506, Subsection 1, above and all applicable federal, state and local laws and regulations.
2.
Whenever a person or any of its subcontractors shall cause damage
to private property, the right-of-way or to Township property in the
right-of-way, the person shall restore such right-of-way or property
within 30 days of the occurrence of the damage. In the event that
the person fails to restore the right-of-way or property to its former
condition, the Township has the right to have such damage repaired
and paid from the financial security posted for the project. If a
person shall cause damage to public or private property, such person
shall repair/replace any damage to said property, including, but not
limited to, a circumstance where a person shall cause damage to any
tree on public or private property, such person shall either replace
the tree with a tree of similar quality or fully compensate the property
owner for any damage to such tree.
3.
The telecommunications system shall not endanger or interfere with
the safety of persons or property within the Township. All operating,
maintenance, construction and repair personnel shall be thoroughly
trained in the safe use of all equipment and in the safe operation
of vehicles. Such personnel shall follow all safety procedures required
by applicable federal, state and local laws and regulations. All persons
operating telecommunications systems shall routinely inspect and maintain
all areas of the telecommunications system so that conditions that
could develop into safety hazards shall be corrected before they become
a hazard.
4.
All construction activity shall be performed in an orderly and workmanlike
manner, and in close coordination with public utilities serving the
Township following accepted industry construction procedures and practices.
5.
All equipment shall be installed underground where required by municipal
ordinance or regulation consistent with the same requirement being
imposed on all other similarly situated companies, including all public
utilities.
[Ord. No. 565, 5/18/2016]
1.
All persons operating telecommunications systems shall, at their
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 to public or private property arising out of the
person's use or occupancy of the rights-of-way. Such person 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 person's use or occupancy of the rights-of-way.
The obligation to indemnify, hold harmless and defend shall include,
but not be limited to, the obligation to pay judgments, injuries,
liabilities, damages, reasonable attorneys' fees, reasonable
expert fees, court costs and all other costs of indemnification.
2.
All persons operating telecommunications systems shall, at all times
during the life of a permit, carry itself and require all of its subcontractors
to carry commercial liability, workers' disability, and vehicle insurance
issued to the person by an insurance company licensed to do business
in the Commonwealth of Pennsylvania in an amount and form acceptable
to the Township as set forth in the permit. Such person shall name
the Township as an additional insured on its liability insurance policies
for which defense will be provided as to all such coverages. All required
insurance coverage shall provide for 30 days' notice to the Township
in the event of material alteration or cancellation of such coverage
prior to the effective date of such material alteration or cancellation.
Such person shall provide appropriate insurance certificates to the
Township prior to the execution of a permit and annually with an application
for a renewal permit. Any certificate of insurance presented to the
Township shall verify that the person is insured against claims for
personal injury, including death, as well as claims for property damage
arising out of the applicant's use and occupancy of the rights-of-way.
[Ord. No. 565, 5/18/2016]
A right-of-way permit may be transferred or assigned, provided
that the transferee/assignee agrees in writing, prior to the transfer
or assignment, to comply with all of the obligations and requirements
contained in this Part. The transferee/assignee shall so notify the
Township in writing at least 30 days prior to the transfer or assignment.
[Ord. No. 565, 5/18/2016]
1.
All persons operating or maintaining a telecommunications system
in accordance herewith shall file with their request a bond solely
for the protection of the Township with a surety company that is licensed
to do business in Pennsylvania in an amount determined by the Township.
The bond shall ensure the person's faithful performance of its
obligations contained in this Part. The bond shall be a continuing
obligation. The amount of the bond shall be determined by the Township
in accordance with applicable standards and will be included in the
permit.
2.
None of the provisions of this section, nor any bond accepted by
the Township pursuant hereto, nor any damages recovered by the Township
thereunder shall be construed to excuse the faithful performance by
or limit the liability of any person under this Part or any permit
issued in accordance herewith or for damages either to the full amount
of the bond or otherwise.
[Ord. No. 565, 5/18/2016]
1.
PUC-Regulated Persons. In the event a PUC-regulated person is found
by the Township to have violated a PUC regulation, standard, or order,
then the Township may bring a complaint against such person before
the Public Utility Commission for violation of such regulation, standard,
or order. The Township may also notify the person of the existence
of any suspected violation of PUC standards, regulations or order
in order to obtain compliance.
A.
In the event a PUC-regulated person is found to have violated any
other provision of this Part that is not within the exclusive jurisdiction
of the PUC, then such person 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 Part and any other remedy at law or in
equity under this Title, the Township Manager appointed designee 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 Part which is not subject to the
exclusive jurisdiction of the PUC.
B.
Nothing in this section shall be construed to permit the Township
to commence or attempt to commence prosecution of any PUC-regulated
person for a violation of any regulation, standard or order of the
PUC.
2.
Non-PUC-Regulated Persons. Any entity not regulated by the PUC that
is found by the Township to have violated any provision of this Part
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 Part and any other remedy at law or in equity under this Title,
the Township Manager-appointed designee 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 Part.
[Ord. No. 565, 5/18/2016]
The Township, by granting any permit or conducting any other
activity under this Part, does not waive, lessen, impair or surrender
the lawful police powers vested in the Township under applicable federal,
state and local laws pertaining to the regulation or use of the rights-of-way.
[Ord. No. 565, 5/18/2016]
If any section, subsection, sentence, clause, phrase or word
of this Part is for any reason held invalid or unconstitutional by
any court of competent jurisdiction, such portion shall be deemed
a separate, distinct and independent provision, and such holding shall
not render this Part invalid.
[Ord. No. 565, 5/18/2016]
The provisions of this Part shall be imposed upon and enforced
against all persons requiring a permit for the provision of telecommunications
services or construction of a telecommunications system within the
Township.
[Ord. No. 565, 5/18/2016]
The provisions of this amending ordinance insofar as they are
the same as corresponding provisions of ordinances and/or regulations
in force and effective prior to the enactment of this Part are intended
as a continuation of such provisions and not as new enactments.
