[Adopted 10-12-2006 by Ord. No. 1941]
The purpose of this Right-of-Way Part (hereinafter
referred to as "this Part 1") is to:
A.
Assist Abington Township (hereinafter "the Township")
in managing its public rights-of-way with respect to telecommunications
services providers in accordance with applicable law; and
B.
Regulate the erection, construction, reconstruction,
installation, operation, maintenance, repair and removal of a telecommunications
system in, upon, along, across, above, over, under or in any manner
connected with the public rights-of-way, of the Township, as now or
in the future may exist; and
C.
Provide the Township with appropriate compensation
for occupation and use of the Township's rights-of-way for a telecommunications
system and for the cost of regulating providers of telecommunications
services on a competitively neutral and nondiscriminatory basis consistent
with this Part 1 and applicable law.
A.
The Township Manager, or the Township Manager's designated
representative, shall serve as the single point of contact within
the Township for all persons regulated under this Part 1.
B.
The Township Manager shall coordinate all contacts
with other Township departments as necessary to facilitate issuance
of any and all permits required by Abington ordinances and regulations.
C.
The Township Manager shall coordinate the preparation
of all policies and forms as necessary for the implementation of this
Part 1 with the approval of the Board of Commissioners.
Unless the context specifically indicates otherwise,
the meaning of the terms used in this Part 1 shall be as follows:
The person who has applied for a right-of-way permit or a
construction permit.
The form prescribed by the Township, which the applicant
must complete in order to obtain a right-of-way or construction permit.
The building, erection, or installation in, on, over or under
a right-of-way. It does not include, as part of the ordinary course
of business, maintenance or repair of existing aerial cables or equipment
in a right-of-way or single line extension from equipment in the right-of-way.
The written authorization granted by the Township to an applicant
in order to perform construction in a right-of-way.
A condition that poses a clear and immediate danger to life
or health, or significant loss of property.
Any tangible property located or proposed to be located in
a right-of-way, including, but not limited to, wires, lines, cables,
conduits, pipes, supporting structures or other facilities.
Work of a minor nature that will keep an existing condition
from failure or decline.
The person who has obtained a right-of-way permit.
Any individual, firm, partnership, association, corporation,
company or other business entity.
The process by which a right-of-way is returned to a state
that is as good or better than its condition before construction.
The surface and space in, on and above any real property
in which the Township has an interest in law or in equity, including,
but not limited to, any public street, boulevard, avenue, road, highway,
easement, freeway, alley, court or any other place, other than real
property owned in fee by the Township.
A written authorization granted by the Township to an applicant
for use of the rights-of-way in the Township for wires, lines, cables,
conduits, pipes, supporting structures and other facilities.
The transmission, between or among points specified by the
user, of information of the user's choosing, without change in form
or content of the information being sent and received.
The offering of telecommunications for a fee directly to
the public, or to such classes of users as to be effectively available
directly to the public, regardless of the facilities used.
A system that offers telecommunications services.
All equipment that is located wholly or partially under a
right-of-way.
A.
No person shall enter upon or occupy any right-of-way
for the purpose of installing, constructing, maintaining or operating
a telecommunications system without first having obtained a right-of-way
permit. Any person maintaining or operating a telecommunications system
as of the effective dale of this Part 1 shall also obtain a right-of-way
permit.
B.
Before a right-of-way permit is issued, the holder
of or applicant for a right-of-way permit shall have applied for any
and all regulatory approvals, permits or authorizations from the appropriate
federal and state authorities, if required. Upon the request of the
Township, the applicant shall submit written evidence of its application
for or receipt of all such approvals, permits or authorizations.
C.
Nothing in this Part 1 shall be construed as a waiver
of any other ordinances or regulations of the Township or the Township's
right to require prospective or current right-of-way permit holders
to secure and remit payment for any and all other required permits
or authorizations.
A.
A right-of-way permit shall only be granted after
an applicant has competed 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 right-of-way permit. The application
shall request information regarding the applicant's proposed or actual
physical use and occupation of the rights-of-way. The applicant shall
provide specific information regarding the equipment it proposes to
place or currently maintains in the rights-of-way. If the completed
application does not fully provide such requested information, the
Township may request such additional information as is necessary to
enable it to make a determination regarding the physical use and occupation
of the rights-of-way by the applicant. The application may request
less information from a permit holder applying for a renewal of a
right-of-way permit.
B.
Upon submission of a fully completed application to
the Township and the accompanying fee, the Township shall review the
application as follows. The Township shall grant or deny any such
applications within 60 days. If the Township denies the application,
it will provide a written response to the applicant explaining the
basis for denial. If the Township fails to grant or reject such application
within the time period specified above, the application shall be deemed
approved. In each case, the Township shall review the application
to determine whether such use would have a detrimental effect on public
safety as it relates to the rights-of-way or would place an undue
physical burden on the rights-of-way.
C.
In considering an application, the Township may use
such outside experts as it deems necessary to assist in determining
whether the use proposed by the applicant would have a detrimental
effect on the right-of-way or the health, safety and/or welfare of
the residents of the Township. In the event the Township deems it
necessary to employ an outside expert or experts to advise the Township
with respect to a particular application, the reasonable costs of
such expert or experts shall be borne by the applicant.
A.
The right-of-way permit shall be issued for a period
of one year. Permit holders shall apply for a renewal of a right-of-way
permit at least 60 days prior to its expiration. The Township may
suspend such right-of-way permit in the event any one or more of the
following has occurred:
(1)
The permit holder shall have caused damage to Township
property or the right-of-way without the prior consent of the Township
(except in the case of an emergency).
(2)
The permit holder or the permit holder's equipment
in the right-of-way has had a detrimental effect on public safety
as it relates to the permit holder's use of the rights-of-way.
(3)
The permit holder failed to pay any of the fees required
under this Part 1.
(4)
The permit holder failed to comply with construction standards in accordance with the provisions contained in § 154-11 below.
(5)
The permit holder failed to indemnify, hold harmless and insure the Township in accordance with the provisions contained in § 154-12 below.
(6)
The permit holder failed to procure and/or maintain a performance or construction bond for the benefit of the Township in accordance with the provisions contained in § 154-15 below.
(7)
The permit holder provided false, incomplete or missing
information on the rights-of-way or construction permit application.
B.
If the Township has reason to believe that one or
more of the above events has occurred, its shall notify the permit
holder in writing. The permit holder shall have 30 days to cure the
violation, unless the Township reasonably determines that the event
is an emergency, in which case the Township may impose a shorter time
period to cure the violation.
C.
Small WCF permit duration. A permit for a small WCF in the rights-of-way shall have a term of five years. Such permit shall be renewed for two additional five-year periods if the applicant is in compliance with the criteria set forth in this Chapter 154. The applicant shall submit proof of such compliance with all requirements of this Chapter 154 prior to the expiration of any five-year term. The Township may suspend such right-of-way permit in the event any one or more of the following has occurred:
[Added 8-11-2022 by Ord. No. 2195]
(1)
The
permit holder shall have caused damage to Township property or the
right-of-way without the prior consent of the Township (except in
the case of an emergency).
(2)
The
permit holder or the permit holder's equipment in the right-of-way
has had a detrimental effect on public safety as it relates to the
permit holder's use of the rights-of-way.
(4)
The permit holder failed to comply with construction standards in accordance with the provisions contained in § 154-11 below.
(5)
The permit holder failed to indemnify, hold harmless and insure the Township in accordance with the provisions contained in § 154-12 below.
(6)
The
permit holder provided false, incomplete or missing information on
the rights-of-way or construction permit application.
A.
Except in the case of an emergency, before commencing
any construction in the rights-of-way, a person shall apply for and
obtain a construction permit. A construction permit shall only be
granted after an applicant has completed an application in the form
that has been prescribed by the Township, which form may be revised
from time to time. Upon request, an applicant shall be provided with
a copy of the current application for a construction permit. Such
application shall request detailed plans of the proposed construction
activity. Such plans shall describe:
B.
Upon submission of all such information required in Subsection A above, the Township shall review such information and either grant or deny a construction permit within 60 days. If the Township denies the construction permit application, the Township will provide a written response to the applicant explaining the basis of the denial. If the Township fails to grant or deny the construction permit within the time period specified above, the application shall be deemed granted. In each case, the Township shall review the application to determine whether such construction would have a detrimental impact on public safety as it relates to the rights-of-way, and to ensure compliance with all applicable federal, state and local laws and regulations. The Township may impose conditions on the construction permit regulating the times, locations, and manner of construction to preserve effective traffic flow, prevent hazardous road conditions and/or minimize noise impacts.
Except in cases of an emergency, before commencing
any activity in the rights-of-way that is expected to last more than
45 hours in duration, a person must notify the Township of the activity
and the general nature of the project. The "activity" referred to
in this section pertains to any activity, including but not limited
to construction or maintenance activity.
A.
Each new and renewing applicant for a right-of-way
permit shall include with its application a right-of-way permit fee
which shall be established by the Board of Commissioners by separate
resolution and which may be adjusted from time to time. This fee shall
be directly related to the Township's costs in reviewing the application
(excluding expert costs) and managing the rights-of-way with respect
to each permit holder. Such costs in managing the rights-of-way include,
but are not limited to: costs of maintaining the rights-of-way; costs
of degradation of streets and rights-of-way property; administrative
costs related to the rights-of-way; traffic control costs pertaining
to work in the rights-of-way; and inspection costs. This fee will
not be refunded in the event the application is denied. If the application
is granted, the application fee will apply to the full term of the
right-of-way permit of one year.
B.
Each applicant for a construction permit shall include
with its application a construction permit fee which shall be established
by the Board of Commissioners by separate resolution and which may
be adjusted from time to lime. This fee shall be directly related
to the Township's costs in reviewing the application and determining
time, place and manner restrictions on the construction activity.
If the application for a construction permit is denied, this fee shall
not be refunded. If the application is granted, then the applicant
shall also pay, within 30 days of the presentation of a statement,
the Township's actual costs directly related to the applicant's construction
project based on the hourly rate established by resolution of the
Board of Commissioners. Such actual costs include, but are not limited
to, costs of disruption and rerouting of traffic, inspection costs
and administrative costs. A construction permit shall apply to a specific
construction project in the Township, and each succeeding construction
project shall require the issuance of a separate construction permit.
C.
Extraordinary expenses. In addition to the fees set
forth above, a permit holder shall pay, within 30 days of the presentation
of a statement, any extraordinary or unusual expenses reasonably incurred
by the Township as a result of the permit holder's use of the rights-of-way,
provided that the Township notifies the permit holder of the expected
expenses prior to them being incurred and provides the permit holder
with an opportunity to mitigate such expenses. Examples of extraordinary
or unusual costs include, but are not limited to, the cost of obtaining
and operating a backhoe, dump truck or other heavy equipment used
to repair the right-of-way, overtime or special pay for public safety
personnel and/or the cost of hazardous waste cleanup or other emergency
services. The statement of such expenses presented to the permit holder
shall be directly related to the Township's actual costs.
D.
In the event that payment of any of the fees identified above is not made upon submission of the application or by the date due, the applicant or permit holder shall pay a late payment penalty of simple interest at 10% annual percentage rate of the total amount past due. Such penalty shall be in lieu of any other monetary penalty. Acceptance of payment under this section shall not in any way limit or waive the Township's right to suspend or terminate the permit according to the terms of this Part 1.
A.
The Township shall have the right to limit the placement
of new or additional equipment in the right-of-way if, in the judgment
of the Township Engineer, there is insufficient space to reasonably
accommodate all requests to occupy and use the rights-of-way. The
Township shall consider requests for occupying and using the rights-of-way
in the order of receipt of fully completed applications for right-of-way
permits. The Township shall strive, to the extent possible, to accommodate
all requests but shall be guided by the physical condition of the
right-of-way and whether such use would have a detrimental effect
on public safely as it relates to the right-of-way.
B.
The Township shall have the right to monitor the telecommunications
systems and the equipment related thereto located in the rights-of-way
in order to prevent interference between and among such systems and
equipment.
C.
A permit holder shall allow the Township to make inspections
of any part of the permit holder's telecommunications system located
in the rights-of-way at any time upon three days notice or, in case
of an emergency, upon demand.
A.
Whenever a permit holder or any of its subcontractors shall disturb any pavement, sidewalk or other public property in order to perform any underground activities, the permit holder shall register with the Pennsylvania One Call System pursuant to 73 P.S. § 176 et seq. Such permit holder shall provide the Township with information showing planned locations and reference points for equipment to be installed. Each permit holder shall perform construction activity in a manner consistent and in compliance with the detailed plans it submitted to the Township pursuant to § 154-7A above and all applicable federal, state and local laws and regulations.
B.
Whenever a permit holder or any of its subcontractors
shall cause damage to the right-of-way or to Township property in
the right-of-way, the permit holder shall restore such right-of-way
or property within 30 days, weather permitting. In the event that
the permit holder fails to restore the right-of-way or Township property
to its former condition, the Township may repair such damage and assess
all such costs to the permit holder.
C.
The telecommunications system shall not endanger or
interfere with the safety of persons or property within the Township.
All operating, maintenance, construction and repair personnel shall
be thoroughly trained in the safe use of all equipment and in the
safe operation of vehicles. Such personnel shall follow all safety
procedures required by applicable federal, state and local laws and
regulations. The permit holder shall routinely inspect and maintain
all areas of the telecommunications system so that conditions that
could develop into safety hazards shall be corrected before they become
a hazard.
D.
Except in the case of an emergency, at least three
days prior to the commencement of any construction activity, a permit
holder shall notify nearby residents of such construction activity
in a manner that is satisfactory to the Township. The name of the
permit holder shall be clearly disclosed to such residents.
E.
All construction activity shall be performed in an
orderly and workmanlike manner and in close coordination with public
utilities serving the Township, following accepted industry construction
procedures and practices.
F.
Any vehicle used for construction activity in the
Township by the permit holder, including vehicles of any contractor
or subcontractor of the permit holder, shall prominently display a
company logo. Any employee or agent of the permit holder, including
any contractor or subcontractor, who personally visits any residential
dwelling in the Township, shall display a photo identification badge.
G.
All wires, cables, and other equipment shall be installed,
where possible, parallel with electric and telephone lines, and multiple
cable configurations shall be arranged in parallel and bundles with
due respect for engineering considerations.
H.
All wires, cables and other equipment shall be installed
underground where required by municipal ordinance or regulation consistent
with the same requirement being imposed on all other similarly situated
companies, including public utilities.
A.
A permit holder shall, at its sole cost and expense,
indemnify, defend and hold harmless the Township, its elected and
appointed officials, employees and agents, at all times against any
and all claims for personal injury, including death, and property
damage arising out of the permit holder's use or occupancy of the
rights-of-way. A permit holder shall defend any actions or proceedings
against the Township in which it is claimed that personal injury,
including death, or property damage was caused by the permit holder's
use or occupancy of the rights-of-way. The obligation to indemnify,
hold harmless and defend shall include, but not be limited to, the
obligation to pay judgments, injuries, liabilities, damages, reasonable
attorneys' fees, reasonable expert fees, court costs and all other
costs of indemnification. A permit holder shall not be required to
indemnify and hold the Township harmless for claims caused by the
Township's negligence, gross negligence or willful misconduct.
B.
A permit holder shall, at all times during the life
of a permit, carry and require its subcontractors to carry liability,
property damage, worker's disability, and vehicle insurance issued
to the permit holder by an insurance company licensed to do business
in the Commonwealth of Pennsylvania in an amount and form acceptable
to the Township as set forth in the permit. A permit holder shall
name the Township as an additional insured on its liability insurance
policies for whom defense will be provided as to all such coverages.
All required insurance coverage shall provide for 30 days' notice
to the Township in the event of material alteration or cancellation
of such coverage prior to the effective date of such material alteration
or cancellation. A permit holder shall provide appropriate insurance
certificates to the Township within 30 days after the execution of
a permit and annually with an application for a renewal permit. Any
certificate of insurance presented to the Township shall verify that
the applicant is insured against claims for personal injury, including
death, as well as claims for properly damage arising out of the applicant's
use and occupancy of the rights-of-way.
A.
A permit holder shall annually provide the Township,
upon application for renewal of the permit, or upon request, a current
map of the locations of its existing equipment and facilities and
a summary of all additions and deletions of equipment and facilities
in the rights-of-way, unless no changes have occurred in the previous
year. If no changes have occurred in the previous year, the permit
holder shall so inform the Township in writing.
B.
A permit holder shall submit to the Township such
reasonable information directly related to the permit holder's use
and occupation of the rights-of-way as the Township may request. All
information provided to the Township shall be maintained by the Township
as proprietary and confidential if such information is designated
in good faith as such prior to the time it is provided to the Township.
A right-of-way permit may be transferred or
assigned, upon 30 days' written notice to the Township, provided that
the transferee/assignee agrees in writing, prior to the transfer or
assignment, to comply with all of the obligations and requirements
contained in this Part 1.
A.
All persons submitting a request for a permit to construct
or maintain a telecommunications system in accordance herewith shall
file with their request a bond solely for the protection of the Township
with a surety company or trust company as surety in the amount of
$25,000 to protect the Township from any and all damages or costs
suffered or incurred by the Township as a result thereof, including,
but not limited to, attorney's fees and costs of any action or proceeding,
the full amount of compensation, indemnification, cost of removal
or abandonment of any property, or other costs resulting from a default.
The bond shall be a continuing obligation during the entire term of
any right-of-way permit or construction permit issued in accordance
herewith.
B.
None of the provisions of this § 154-15, nor any bond accepted by the Township pursuant hereto, nor any damages recovered by the Township thereunder shall be construed to excuse the faithful performance by or limit the liability of the permit holder under this Part 1 or any permit issued in accordance herewith or for damages ether to the full amount of the bond or otherwise.
A.
In addition to all other rights and powers reserved
by the Township, the Township reserves the right to terminate a permit
and all rights and privileges of a permit holder for any of the following
reasons:
(1)
A permit holder fails, after 30 days' prior written
notice, to comply with any of the material provisions of the permit
or this Part 1.
(2)
A permit holder attempts to or does practice any fraud
or deceit in its conduct or relations with the Township under the
permit.
(3)
The Township condemns all of the property of a permit
holder within the Township by the lawful exercise of eminent domain.
(4)
The permit holder abandons the telecommunications
system.
B.
A termination shall be declared only by a written
decision of the Board of Commissioners after an appropriate public
hearing that shall afford the permit holder due process and a full
opportunity to be heard and to respond to any notice of grounds to
terminate in accordance with applicable law. All notice requirements
shall be met by providing the permit holder at least 60 days' prior
written notice of a public hearing concerning the proposed termination.
Such notice shall state grounds for termination, The Board of Commissioners,
after public hearing and upon finding the existence of grounds for
termination, may either declare the permit terminated or excuse such
grounds upon a showing by the permit holder of mitigating circumstances
or good cause for the existence of such grounds.
A.
Upon expiration or termination of the permit, if the
permit is not renewed, the permit holder shall, upon 60 days' prior
written notice to the permit holder, commence to remove its equipment
from the rights-of-way and shall restore said areas. If such removal
is not completed within six months of such notice, the Township may
deem any property not removed as abandoned and the Township may remove
it at the former permit holder's expense. In the event that the permit
holder installed and/or operated any underground conduit or pipe which
is six inches or more in diameter, the permit holder shall fill said
conduit or pipe with material in a manner satisfactory to the Township.
B.
During the term of the permit, if the permit holder
decides to abandon or no longer use all or part of its telecommunications
system, it shall provide the Township with written notice of its abandonment
at least 30 days prior to such decision, which notice shall describe
the equipment and its location.
C.
The Township may request a permit holder to declare
the permit holder's intention as to abandonment of all or part of
the telecommunications system during the term of the permit. The permit
holder shall respond to such request within 90 days, or such portion
of the telecommunications system shall be deemed abandoned.
D.
The Township shall have the right to require the permit
holder to commence to remove the abandoned telecommunications system
in part or in total upon 60 days' prior written notice to the permit
holder. If such removal is not competed within six months of such
notice, the Township may remove it at the permit holder's expense.
Any person who has violated any of the terms
of this Part 1 shall, upon being found liable in a civil enforcement
proceeding commenced by the Township, pay a judgment of not more than
$500 plus all court costs, including reasonable attorneys' fees incurred
by the Township as a result thereof. The District Justice shall have
initial jurisdiction over proceedings brought pursuant to this Part
1. No judgment shall commence or be imposed, levied or payable until
the date of the determination of a violation by the District Justice.
If the defendant neither pays nor timely appeals the judgment, the
Township may enforce the judgment pursuant to the appropriate rules
of civil procedure. Each day that a violation continues shall constitute
a separate violation, unless the District Justice, determining that
there has been a violation further determines that there was a good-faith
basis for the person violating this Part 1 to have believed that there
was no such violation, in which event there shall be deemed to have
been only one such violation until the fifth day following the date
of the determination of a violation by the District Justice, and thereafter
each day that a violation continues shall constitute a separate violation.
All judgments, costs and reasonable attorneys' fees collected for
a violation of this Part 1 shall be paid over to the Township of Abington.
The Township, by granting any permit under this
Part 1, does not waive, lessen, impair or surrender the lawful police
powers vested in the Township under applicable federal, state and
local laws pertaining to the regulation or use of the rights-of-way.
The provisions of this Part 1 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.
