[Adopted 2-2-2006 by Ord. No. 06-01]
The purpose of this article is to:
A. 
Assist in the management of facilities placed in, on or over the public rights-of-way in order to minimize the congestion, inconvenience, visual impact and other adverse effects, and the costs to the citizens resulting from the placement of facilities within the public rights-of-way;
B. 
Govern the use and occupancy of the public rights-of-way;
C. 
Assist the Township in its efforts to protect the public health, safety and welfare;
D. 
Conserve the limited physical capacity of the public rights-of-way held in public trust by the Township;
E. 
Preserve the physical integrity of the streets and highways;
F. 
Control the orderly flow of vehicles and pedestrians;
G. 
Keep track of the different entities using the public rights-of-way to prevent interference between them;
H. 
Assist on scheduling common trenching and street cuts; and
I. 
Protect the safety, security, appearance and condition of the public rights-of-way.
Definitions of terms used in the Code of the Township of West Brandywine are set forth in Chapter 1, General Provisions, Article III, Terminology.
A. 
Any person seeking to place facilities on, in or over the public rights-of-way shall first file an application for a construction permit with the Township and shall abide by the terms and provisions of this article pertaining to use of the public rights-of-way.
B. 
Any person, prior to placing, reconstructing or altering facilities in, on or over the public rights-of-way, must obtain separate municipal authorization from the Township.
C. 
Any person with a current, unexpired consent, franchise, agreement or other authorization from the Township ("grant") to use the public rights-of-way that is in effect at the time this article takes effect shall continue to operate under and comply with that grant until the grant expires or until it is terminated by mutual agreement of the Township and the person, or is terminated as otherwise provided for in law. So long as such grant is in effect, it shall control and this article shall not be applicable in the event of a conflict.
D. 
Prerequisites to issuance of construction permit - each person must register with the Township. In order for the Township to know which persons own facilities in the public rights-of-way within the Township, each such person that owns facilities shall register with the Township and provide the following information at a minimum: person's name and the current name, address, and telephone number(s) of a contact employed by and with binding and decision-making authority for the person and who is available 24 hours per day. Each person shall update and keep current his/her registration with the Township at all times.
A. 
The Township Manager shall administer and enforce compliance with this article.
B. 
A person shall report information related to the use of the public rights-of-way that the Township Manager requires in the form and manner reasonably prescribed by the Township Manager.
C. 
The Township Manager shall report to the Township Board of Supervisors upon the determination that a person has failed to comply with this article.
A person is subject to reasonable police power regulation of the Township to manage its public rights-of-way in connection with the construction, expansion, reconstruction, maintenance or repair of facilities in the public rights-of-way, pursuant to the Township's rights as a custodian of public property, based upon the Township's historic rights under state and federal laws. Such regulations include, but are not limited to, the following:
A. 
At the Township's request, a person shall furnish the Township accurate and complete information relating to the construction, reconstruction, removal, maintenance and repair of facilities performed by the person in the public rights-of-way.
B. 
A person may be required to place certain facilities within the public rights-of-way underground according to applicable Township requirements absent a compelling demonstration by the person that, in any specific instance, this requirement is not reasonable, feasible or is it equally applicable to other similar users of the public rights-of-way.
C. 
A person shall perform operations, excavations and other construction in the public rights-of-way in accordance with all applicable Township requirements, including the obligation to use trenchless technology whenever commercially economical and practical and consistent with obligations on other similar users of the public right-of-way. The Township shall waive the requirement of trenchless technology if it determines that the field conditions warrant the waiver, based upon information provided to the Township by the person. All excavations and other construction in the public rights-of-way shall be conducted so as to minimize interference with the use of public and private property. A person shall follow all reasonable construction directions given by the Township in order to minimize any such interference.
D. 
A person must obtain a permit, as reasonably required by applicable Township codes, prior to any excavation, construction, installation, expansion, repair, removal, relocation or maintenance of the person's facilities. A construction permit is not required for routine maintenance that does not require excavation of the public rights-of-way or which does not block traffic lanes or sidewalks during peak traffic periods between 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 6:00 p.m. on weekdays, or for more than two hours during any non-peak traffic period. Once a permit is issued, person shall give to the Township a minimum of 48 hours' notice (which could be at the time of the issuance of the permit) prior to undertaking any of the above-listed activities on its facilities in, on or under the public rights-of-way. The failure of the person to request and obtain a permit from the Township prior to performing any of the above-listed activities in, on or over any public right-of-way, except in an emergency as provided for in Subsection K below, will subject the person to a stop-work order from the Township and enforcement action pursuant to the Township's Code. If the person fails to act upon any permit within 90 calendar days of issuance, the permit shall become invalid, and the person will be required to obtain another permit.
E. 
When a person completes construction, expansion, reconstruction, removal, excavation or other work, the person shall promptly restore the public rights-of-way-in accordance with applicable Township requirements. A person shall replace and properly relay and repair the surface, base, irrigation system, landscape treatment, electric, cable or phone service within any public rights-of-way that may be excavated or damaged by reason of the erection, construction, maintenance or repair of the person's facilities within 30 calendar days after completion of the work in accordance with existing standards of the Township in effect at the time of the work, unless extended by the Township for good cause.
F. 
Upon failure of a person to perform any such repair or replacement work, and five days after written notice has been given by the Township to the person, and in the event repairs have not been initiated during such five-day period, the Township may repair such portion of the public rights-of-way as may have been disturbed by the person, its contractors or agents. Upon receipt of an invoice from the Township, the person will reimburse the Township for the costs so incurred within 30 calendar days from the date of the Township invoice.
G. 
Should the Township reasonably determine, within two years from the date of the completion of the repair work, that the surface, base, irrigation system or landscape treatment requires additional restoration work to meet existing standards of the Township, a person shall perform such additional restoration work to the satisfaction of the Township, subject to all Township remedies as provided herein.
H. 
Notwithstanding the foregoing in Subsection G, if the Township determines that the failure of a person to properly repair or restore the public rights-of-way constitutes a safety hazard to the public, the Township may undertake emergency repairs and restoration efforts, after emergency notice has been provided, to the extent reasonable under the circumstances. A person shall promptly reimburse the Township for all costs incurred by the Township within 30 calendar days from the date of the Township invoice.
I. 
A person shall furnish the Township with construction plans and maps showing the location and proposed routing of new construction or reconstruction at least five business days before beginning construction or reconstruction that involves an alteration to the surface or subsurface of the public rights-of-way. A person may not begin construction until the location of new facilities and proposed routing of the new construction or reconstruction and all required plans and drawings have been approved in writing by the Township, which approval will not be unreasonably withheld, taking due consideration of the surrounding area and alternative locations for the facilities and routing.
J. 
If the Township Manager declares an emergency with regard to the health, safety and welfare of the citizens and requests by written notice the removal or abatement of facilities, a person shall remove or abate the person's facilities by the deadline provided in the Township Manager's request. The person and the Township shall cooperate to the extent possible to assure continuity of service. If the person, after notice, fails or refuses to act, the Township may remove or abate the facility, at the sole cost and expense of the person, without paying compensation to the person and without the Township incurring liability for damages or associated court and legal costs.
K. 
Except in the case of customer service interruptions and imminent harm to property or person ("emergency conditions"), a person may not excavate the pavement of a street or public rights-of-way without first complying with Township requirements. The Township Manager or designee shall be notified as promptly as possible regarding work performed under such emergency conditions, and the person shall comply with the requirements of Township standards for the restoration of the public rights-of-way.
L. 
Within 60 days of completion of each new permitted section of a person's facilities, the person shall supply the Township with a complete set of as-built drawings for the segment in a format used in the ordinary course of the person's business to the extent they are prepared in the ordinary course of business, but excluding customer specific, proprietary or confidential information and as reasonably prescribed by the Township, and as allowed by law. The Township may, at its discretion, accept in lieu of as-built drawings any reasonable alternative which provides adequate information as to the location of facilities in the public rights-of-way.
M. 
The Township may require reasonable bonding requirements of a person as are required of other entities that place facilities in the public rights-of-way.
N. 
In determining whether any requirement under this section is unreasonable or unfeasible, the Township Manager or his/her designee shall consider, among other things, whether the requirement would subject the person or persons to an unreasonable increase in risk or service interruption, or to an unreasonable increase in liability for accidents, or to an unreasonable delay in construction or in availability of its services, or to any other unreasonable technical or economic burden.
A. 
In the exercise of governmental functions, the Township has first priority over all other uses of the public rights-of-way. The Township reserves the right to lay sewer, gas, water and other pipe lines or cables and conduits, and to do underground and overhead work, and attachments, restructuring or changes in aerial facilities in, across, along, over or under a public street, alley or public rights-of-way occupied by a person, and to change the curb, sidewalks or the grade of streets.
B. 
The Township shall assign the location in or over the public rights-of-way among competing users of the public rights-of-way with due consideration to the public health and safety considerations of each user type, and to the extent the Township can demonstrate that there is limited space available for additional users, may limit new users, as allowed under state or federal law.
C. 
If the Township authorizes abutting landowners to occupy space under the surface of any public street, alley or public right-of-way, the grant to an abutting landowner shall be subject to the rights of the previously authorized user of the public right-of-way. If the Township closes or abandons a public right-of-way that contains a portion of a person's facilities, the Township shall close or abandon such public right-of-way subject to the rights of the person.
D. 
If the Township gives written notice, a person shall, at its own expense, temporarily or permanently, remove, relocate, change or alter the position of person's facilities that are in the public rights-of-way within 120 days, except in circumstances that require additional time as reasonably determined by the Township based upon information provided by the person. For projects expected to take longer than 120 days to remove, change or relocate, the Township will confer with the person before determining the alterations to be required and the timing thereof. The Township shall give notice whenever the Township has determined that removal, relocation, change or alteration is reasonably necessary for the construction, operation, repair, maintenance or installation of a Township governmental public improvement in the public rights-of-way. This section shall not be construed to prevent a person's recovery of the cost of relocation or removal from private third parties who initiate the request for relocation or removal, nor shall it be required if improvements are solely for beautification purposes without prior joint deliberation and agreement with the person.
E. 
If the person fails to relocate facilities in the time allowed by the Township in this section, the person may be subject to liability to the Township for such delay and as set forth in the Township codes or ordinance, now or hereafter enacted.
F. 
Notwithstanding anything in Subsection D, the Township Manager and a person may agree in writing to different time frames than those provided above if circumstances reasonably warrant such a change.
G. 
A person may trim trees in or over the public rights-of-way for the safe and reliable operation, use and maintenance of its facilities. All tree trimming shall be performed in accordance with standards promulgated by the Township. Should the person, its contractor or agent fail to remove such trimmings within 24 hours, the Township may remove the trimmings or have them removed, and upon receipt of a bill from the Township, the person shall promptly reimburse the Township for all costs incurred within 30 working days.
H. 
Persons shall temporarily remove, raise or lower its aerial facilities to permit the moving of houses or other bulky structures if the Township gives written notice of no less than 48 hours. The expense of these temporary rearrangements shall be paid by the party or parties requesting and benefiting from the temporary rearrangements. The person may require prepayment or prior posting of a bond from the party requesting the temporary move.
A. 
A person shall obtain and maintain insurance in the amounts reasonably prescribed by the Township with an insurance company licensed to do business in the State of Pennsylvania acceptable to the Township. A person shall furnish the Township with proof of insurance at the time of the request for construction permits. The Township reserves the right to review the insurance requirements and to reasonably adjust insurance coverage and limits when the Township Manager determines that changes in statutory law, court decisions or the claims history of the industry or the person require adjustment of the coverage. For purposes of this section, the Township will accept certificates of self-insurance issued by the State of Pennsylvania or letters written by the person in those instances where the state does not issue such letters, which provide the same coverage as required herein. However, for the Township to accept such letters the person must demonstrate by written information that it has adequate financial resources to be a self-insured entity as reasonably determined by the Township, based on financial information requested by and furnished to the Township. The Township's current insurance requirements are described in Exhibit A attached hereto.[1]
[1]
Editor's Note: Said Exhibit A is on file in the Township offices.
B. 
Person shall furnish, at no cost to the Township, copies of certificates of insurance evidencing the coverage required by this section to the Township. The Township may request the deletion, revision or modification of particular policy terms, conditions, limitations or exclusions, unless the policy provisions are established by a law or regulation binding the Township, the person or the underwriter. If the Township requests a deletion, revision or modification, a person shall exercise reasonable efforts to pay for and to accomplish the change.
C. 
An insurance certificate shall contain the following required provisions:
(1) 
Name the Township and its officers, employees, board members and elected representatives as additional insured's for all applicable coverage;
(2) 
Provide for 30 days' notice to the Township for cancellation, nonrenewal or material change; and
(3) 
Provide that notice of claims shall be provided to the Township Manager by certified mail.
D. 
Person shall file and maintain proof of insurance with the Township Manager. An insurance certificate obtained in compliance with this section is subject to Township approval. The Township may require the certificate to be changed to reflect changing liability limits. A person shall immediately advise the Township of actual or potential litigation that may develop which may affect an existing carrier's obligation to defend and indemnify.
E. 
An insurer has no right of recovery against the Township. The required insurance policies shall protect the person and the Township. The insurance shall be primary coverage for losses covered by the policies.
F. 
The policy clause "Other Insurance" shall not apply to the Township if the Township is an insured under the policy.
G. 
The person shall pay premiums and assessments. A company which issues an insurance policy has no recourse against the Township for payment of a premium or assessment. Insurance policies obtained by a person must provide that the issuing company waives all right of recovery by way of subrogation against the Township in connection with damage covered by the policy.
A. 
Except as to certificated telecommunications providers, each person placing facilities in the public rights-of-way shall agree to promptly defend, indemnify and hold the Township harmless from and against all damages, costs, losses or expenses (i) for the repair, replacement or restoration of Township's property, equipment, materials, structures and facilities which are damaged, destroyed or found to be defective as a result of the person's acts or omissions or (ii) from and against any and all claims, demands, suits, causes of action and judgments for (a) damage to or loss of the property of any person (including, but not limited to the person, its agents, officers, employees and subcontractors, Township's agents, officers and employees and third parties) and/or (b) death, bodily injury, illness, disease, loss of services or loss of income or wages to any person (including, but not limited to the agents, officers and employees of the person, person's subcontractors and Township and third parties) arising out of, incident to, concerning or resulting from the negligent or willful act or omissions of the person, its agents, employees and/or subcontractors in the performance of activities pursuant to this article.
B. 
This indemnity provision shall not apply to any liability resulting from the negligence of the Township, its officers, employees, agents, contractors or subcontractors.
C. 
The provisions of this indemnity are solely for the benefit of the Township and is not intended to create or grant any rights, contractual or otherwise, to any other person or entity;
This article shall be construed in accordance with the Township codes in effect on the date of passage of this article to the extent that such codes are not in conflict with or in violation of the Constitution and laws of the United States or the State of Pennsylvania, subject to the Township's ongoing authority to adopt reasonable regulations to manage its public rights-of-way, pursuant to §§ 163-13 and 163-14, or as otherwise provided by law.