[Adopted 7-13-2015 by Ord. No. 2015-04[1]]
[1]
Editor’s Note: This ordinance also superseded former
Art. III, Street Openings and Excavations, adopted 3-13-1989 by Ord.
No. 1989-3.
Terms used in this article shall have the following meanings,
whether or not the terms are capitalized. 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 aerial facilities located
in private driveways, newspaper vending machines or 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 with or control
by another person.
Any public utility, including any cable franchise, regulated
by the Pennsylvania Public Utility Commission, seeking to obtain from
Township a permit for work to be performed within the right-of-way
pursuant to a permit issued pursuant to this article. The applicant
shall be the public utility and not any contractor or subcontractor
engaged to perform the work which is the subject of the permit.
The Cable Communications Policy Act of 1984, as amended by
the Cable Television Consumer Protection and Competition Act of 1992
and the Telecommunications Act of 1996, and as hereafter amended (47
U.S.C. § 521 et seq., as hereafter amended).
Right-of-way use agreement required pursuant to the Cable
Act and the Township Code for any cable franchise issued by the Township.
A fee paid by a cable operator pursuant to a cable franchise
agreement for the cable operator's use of the Township's rights-of-way.
The fee is calculated as a percentage of the cable operator's gross
revenues from the operation of the cable system to provide cable services
in the 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 or an OVS system to provide OVS 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 i) a facility that serves only to retransmit
the television signals of one or more television broadcast stations;
ii) a facility that serves subscribers without using any right-of-way;
iii) a facility of a common carrier which is subject, in whole or
in part, to the provisions of Title II of the Communications Act of
1934, as amended, except that such facility shall be considered a
cable system [other than for purposes of 47 U.S.C. § 541(c)]
to the extent such facility is used in the transmission of video programming
directly to subscribers, unless the extent of such use is solely to
provide interactive on-demand services; iv) an open video system that
complies with 47 U.S.C. § 573; or v) any facilities of any
electric utility used solely for operating its electric utility system.
A reference to a cable system refers to any part thereof. This definition
of "cable system" shall in no way be deemed to circumscribe or limit
the valid authority of the 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.
That portion of a street or alley right-of-way that is intended
for vehicular movement.
A certificate of public convenience issued by the Pennsylvania
Public Utility Commission to a public utility.
The Communications Act of 1934, 47 U.S.C. § 151
et seq., as amended and as hereafter amended.
The Public Works Department of the Township of Lancaster.
A condition that:
Conduit, pipes, cables, wires, lines, towers, optic fiber,
antennas, poles, associated equipment and appurtenances, and any other
facilities located in the right-of-way and designed, constructed,
and/or used by telecommunications providers, public utilities, or
other persons for transmitting, transporting, or distributing communications,
telecommunications, electricity, natural gas or manufactured gas,
oil, gasoline, steam, or any other form of energy, signal or substance.
A right-of-way use authorization pursuant to this article
that authorizes a person to own, construct, operate and maintain a
cable system to provide cable service or an OVS system to provide
OVS service within the Township.
A cable franchise agreement or OVS 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.
Any corporation, company, association, joint-stock company,
firm, partnership, limited liability company, or other entity; municipal,
industrial development, housing, redevelopment, and other authority
or corporation established pursuant to statutes of the Commonwealth
of Pennsylvania; and any individual not regulated as a public utility
by the Public Utility Commission.
Facilities consisting of a set of transmission paths and
associated signal generation, reception, and control equipment that
is designed to provide video programming services, cable service,
and/or services similar to cable service to multiple subscribers within
the Township and which the Federal Communications Commission or its
successor has certified as compliant with Part 76 of its rules, 47
CFR 76.1500 et seq., as amended from time to time, provided that an
open video system is not a system of telecommunications facilities
and does not provide telecommunications service to the extent that
it provides only video services; and provided, further, that an open
video system means only those facilities that are operated by a person
authorized to provide video services pursuant to Section 653 of the
Communications Act of 1934, as amended, 47 U.S.C. § 573,
where such person is properly certificated to provide such services
pursuant to applicable Federal Communications Commission regulations.
Video programming services that are provided over an open
video system.
The recipient of a right-of-way use permit or cable franchise
that is issued by the 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 this
article, including the Township, its departments, agencies, and authorities.
Corporations, companies, associations, joint-stock companies,
firms, partnerships, limited liability companies, and other entities;
municipal, industrial development, housing, redevelopment, and other
authorities and corporations established pursuant to statutes of the
Commonwealth of Pennsylvania; and individuals.
The written regulations, standards, operations and/or courses
of action established by the Township to implement the provisions
of this article. The preparation and promulgation of policies and
procedures are solely the function of the Public Works Superintendent,
with the Township adopting the same by resolution.
The state administrative agency, or lawful successor thereto,
authorized to regulate and oversee public utilities and telecommunications
providers and telecommunications services in the Commonwealth of Pennsylvania,
to the extent provided by law.
Shall be defined as that term is defined in the Pennsylvania
Public Utility Code as of the effective date of this article, and
as hereafter amended.
The Superintendent of the Public Works Department. Except
for the preparation and promulgation of policies and procedures, which
is solely the function of the Superintendent, such term shall include
the employees, agents and assignees of the Director.
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.
A license, right-of-way use permit, cable franchise, or OVS
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, OVS service,
video programming service, information service, utility service (including,
but not limited to, electric, gas, water, or steam service), or other
form of service provided by means of facilities located in the right-of-way.
A strip of land or part thereof within the right-of-way,
whether dedicated or not, that is intended or used for vehicular and
pedestrian traffic. The phrase "in the(a) street(s)" means "in, on,
over, along, above and/or under the(a) street(s)."
A permit for excavation of a street for the construction
or installation of facilities in any right-of-way in the Township.
Any cable system, OVS system, telecommunications system,
or integral part thereof.
The transmission, between or among points specified by the
user, of information of the user's choosing, without change in the
form or content of the information as sent and received.
The plant, equipment and property within the 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.
The Township of Lancaster, Lancaster County, Pennsylvania.
The Code of the Township of Lancaster, Lancaster County,
Pennsylvania.
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.
Utility and telecommunications facilities located under the
surface of the ground, excluding the underground foundations or supports
for aerial facilities.
All public utilities regulated by the Public Utility Commission
owning or operating facilities in the Township's rights-of-way shall
comply with the following requirements:
A.
License. All public utilities shall be deemed to have a license from
the Township under this article to occupy the rights-of-way.
B.
As-built maps. Within 30 days of enactment of this Ordinance, each
public utility shall submit to the Department two paper copies and
one electronic copy of an as-built map or maps and engineering specifications
as set forth in the Township policies and procedures pertaining to
management of rights-of-way to be promulgated by the Public Works
Superintendent and adopted by resolution of the Board of Supervisors
from time to time, depicting and certifying the location of all its
existing facilities within Township rights-of-way. Such electronic
and paper maps and engineering specifications shall be submitted in
a format and include the information required by the Township by/in
the policies and procedures. If the maps are not provided electronically
in the required format, then the utility 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, and shall remain, confidential documents and
are exempt from public disclosure under Pennsylvania's Right to Know
Law, 65 Pa.C.S.A. § 708; the Public Utility Confidential
Security Information Disclosure Protection Act, 35 P.S. §§ 2141.1
through 2141.3; and the Public Utility Commission Regulations relating
to confidential security information, 52 Pa. Code § 102.1
After submission of the as-built maps required under this section,
each public utility having facilities in the Township rights-of-way
shall update such maps as required under this article.
C.
Right to inspect. The Township may conduct inspections of the Township
rights-of-way in order to ensure that utility facilities located within
such rights-of-way do not constitute a public safety hazard and remain
in compliance with the standards set forth by the Public Utility Commission.
Such inspections shall be limited to establishing whether such facilities
meet relevant PUC standards and comply with such Township construction
standards as relate to the opening and closing of Township streets,
curbs, and sidewalks, as provided under 15 Pa.C.S.A. § 1511(e).
In the event that the Township determines that any facilities of a
utility are not in compliance with such standards, then the Township
may bring a complaint against such utility before the Public Utility
Commission, in accordance with established PUC procedures. The Township
may also elect, in its discretion, to notify the utility of the existence
of any noncompliant facilities, in order to abate such violations
without the need for the filing of a formal PUC complaint.
D.
Construction in rights-of-way.
(1)
Street opening permits. Except in the case of an emergency, no utility
shall perform any street excavation in the rights-of-way without first
obtaining a street opening permit and paying a permit fee in accordance
with the provisions of this article. No utility shall perform curb
and sidewalk construction replacement or repair without first obtaining
a curb and sidewalk permit and paying a fee pursuant to this article.
The procurement of a street opening permit shall only be necessary
when the proposed street excavation and/or construction impacts Township
streets; it shall not apply to any construction or excavation activities
on state roads.
(2)
Construction standards. Construction standards shall include those determined by the Public Utility Commission for the installation of facilities in Township rights-of-way, as well as such Township construction standards adopted by resolution of the Board of Supervisors of the Township as relate to the opening and closing of Township streets, curbs, and sidewalks, as provided under 15 Pa.C.S.A. § 1511(e). Compliance with construction requirements pursuant to PUC-related standards shall remain within the sole and exclusive jurisdiction of the PUC. Compliance with construction requirements pursuant to Township standards shall remain within the jurisdiction of the Township. The Township shall retain the right to file formal complaints pursuant to PUC-related construction as set forth under Subsection D.
(3)
Security. Each utility opening, closing, or excavating Township streets,
curbs, and sidewalks as provided under 15 Pa.C.S.A. § 1511(e)
in conjunction with the utility's construction or maintenance activities
in the ROW shall furnish to the Township, at the utility's expense,
a letter of credit or other form of financial security, in such form
and in the amount as required by the Township consistent with the
Policies and Procedures and regulations of the Township to guarantee
the proper closing and restoration of the Township's streets, sidewalks,
or ROW. The security shall be a continuing obligation until the completion
of the construction or maintenance as confirmed in writing by the
Township. Utilities that are performing ongoing projects or are pursuing
multiple projects under one permit shall post security as provided
by this section, which shall be held by the Township until final completion
of all construction or maintenance activities to guarantee the proper
closing and restoration of Township streets, sidewalks or ROW.
(4)
Insurance. The applicant shall maintain insurance, with a reputable
insurance company authorized to do business in the Commonwealth of
Pennsylvania, 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 requiring the opening or closing
of Township streets, sidewalks, or ROW in accordance with 15 Pa.C.S.A.
§ 1511(e). The amounts of such coverage shall be as determined
by the Township by regulation. The Township shall be designated as
an additional insured under each of the insurance policies. The utility
shall not cancel any required insurance policy without first obtaining
alternative insurance in conformance with this section. Utilities
undertaking work in the Township rights-of-way shall provide the Township
with at least 30 days' advance written notice of any material changes
or cancellation of any required insurance policy.
(5)
Recently constructed streets. No street opening permit shall be issued
to cut any Township street that was constructed, reconstructed or
resurfaced, including all streets offered and accepted for dedication,
fewer than three years prior to application for a street opening permit,
unless the applicant agrees in writing to overlay or pave the surface
of the street, from curb to curb and intersection to intersection,
in accordance with applicable Township standards. The Township may
grant an exception to this section in the case of an emergency. The
applicant shall pay all street degradation fees and comply with all
related requirements as prescribed in the policies and procedures
promulgated by the Public Works Superintendent and adopted by the
Board of Supervisors or as set by resolution from time to time by
the Board of Supervisors.
(6)
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 utility shall temporarily or permanently remove, relocate, change
or alter the position of any facilities within the right-of-way, excluding
those underground, whenever the 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. Utilities must relocate and remove
facilities consistent with the regulations and standards of the PUC.
(7)
Coordination of construction activities. By March 1 of each year,
or at such other time as the Township and utilities may agree, each
public utility shall provide the Department with a schedule (including
plans and projected start and finish dates for each project) of its
planned construction activities for the following year which may affect
the rights-of-way. The schedule shall depict all planned construction
activities the utility is planning to perform within the year.
(8)
Damage to facilities or property. A utility, including any contractor
working for a utility, shall avoid damage to any facilities and/or
public or private property. If any facilities and/or public or private
property is damaged by the utility, including by any contractor working
for the utility, the utility shall promptly repair and restore such
property within 10 business days. The utility shall utilize the Pennsylvania
One-Call System prior to any disturbance of the rights-of-way and
shall adhere to all other requirements of the Pennsylvania Underground
Utility Line Protection Act.[1]
[1]
Editor's Note: See 73 P.S. § 176 et seq.
(9)
Facilities maps. Each utility 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 updated as-built
map or maps and engineering specifications as set forth in the Policies
and Procedures promulgated by the Public Works Superintendent and
adopted by the Board of Supervisors from time to time, depicting and
certifying the location of the new facilities constructed or updated.
Such documents shall be submitted in a format and include the information
required by the Township Policies and Procedures. If the maps are
not provided electronically in the required format, then the utility
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.
(10)
Field marking. Each utility shall field-mark the locations of
its underground facilities upon request by other utilities or the
Township, consistent with the requirements of the Pennsylvania Underground
Utility Line Protection Act and at no cost to the Township.
E.
Right-of-way maintenance fee.
(1)
Compensation for right-of-way use. Occupancy of Township rights-of-way
by any utility is subject to the Township's right to fix annually
a fair and reasonable compensation, which shall be directly related
to the Township's actual right-of-way maintenance costs.
(2)
Annual right-of-way maintenance fee. Each utility with facilities
in the Township's rights-of-way shall pay an annual fee to compensate
the Township for its costs incurred in connection with the ongoing
use and occupancy of Township rights-of-way. The annual right-of-way
maintenance fee shall be determined by the Township and authorized
by resolution of Township Board of Supervisors and shall be based
on the Township's actual ROW maintenance costs. The annual right-of-way
maintenance fee shall be fixed on a per-linear-foot basis for underground
facilities and on a per-linear-foot basis for aerial facilities. If
subject to a cable franchise agreement, the utility shall not be required
to remit both a cable franchise fee amount and an annual right-of-way
maintenance fee to the Township; such utility shall pay the higher
of the two fees to the Township. The annual right-of-way maintenance
fee shall apply also to abandoned lines not removed from Township
rights-of-way.
A.
Right-of-way use authorization required.
(1)
Right-of-way use authorization. Except as otherwise provided in this
article, no non-PUC-regulated entity 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. Public utilities regulated by the
PUC shall not be subject to this section and shall comply with the
provisions of this article.
(2)
Permit required. Pursuant to this article, all non-PUC-regulated
entities that own, construct and/or maintain facilities in any public
right-of-way shall obtain a right-of-way use permit. If any such entity
is subject to a cable franchise agreement, the permittee shall not
be required to remit both a cable franchise fee and an annual right-of-way
maintenance fee to the Township. Such permittee shall pay the higher
amount of the two fees to the Township.
B.
Right-of-way use permit.
(1)
Permit required; term and scope of permit. No non-PUC-regulated entity,
other than a franchisee, may own, construct, operate and/or maintain
facilities that occupy the right-of-way without first obtaining a
ROW use permit. Any ROW use permit shall be subject to such conditions
as the 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)
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:
(a)
That it has a history of compliance with applicable laws and
regulations relating to the management, construction and maintenance
of facilities in streets and rights-of-way, wherever located; and
(b)
That it possesses all licenses, permits, authorizations, and
other permissions required by the Federal Communications Commission,
the Commonwealth of Pennsylvania and the Township as a condition of
its using the right-of-way and furnishing the services and operating
the facilities proposed by the applicant.
(3)
Insurance. Each permittee shall, at all times during the entire term
of the right-of-way use permit, maintain and require its contractors
and subcontractors to maintain insurance with a reputable insurance
company authorized to do business in the Commonwealth of Pennsylvania
and which has an A.M. Best rating (or equivalent) and no less than
an "A" rating, 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.
(4)
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 permittee's system or facilities in the rights-of-way.
The obligation to indemnify, hold harmless and defend shall include,
but not be limited to, the obligation to pay judgments, injuries,
liabilities, damages, reasonable attorneys' fees, reasonable expert
fees, court costs and all other costs of indemnification.
(5)
Application for right-of-way use permit. Application for a ROW use
permit shall be in such form and shall include such information as
the 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 written 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 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 and may
be adjusted by resolution of Township Board of Supervisors.
(6)
Renewal of right-of-way use permit.
(a)
A person desiring to renew a ROW use permit prior to the expiration
of the permit shall file an application with the 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.
(b)
The Township shall make a determination accepting or denying
the renewal application. If the renewal application is denied, the
written 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.
(7)
As-built maps. Each person applying for a ROW use permit shall submit
to the Department 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 by/in the policies
and procedures and shall be submitted with the application. If the
maps are not provided electronically in the required format, then
the person shall reimburse the 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. After submission
of the as-built maps required under this section, each permittee having
facilities in the Township rights-of-way shall update such maps as
required under this article.
(8)
Right to inspect. The Department shall have the right to inspect
all of the facilities of the permittee, including aerial facilities
and underground facilities, to ensure health and safety with respect
to such facilities, other facilities, the rights-of-way and any other
public or private property and to determine compliance with the terms
of this 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.
(9)
Use authorized. No ROW use permit shall confer any exclusive right
or privilege to occupy or use the right-of-way for any purpose; or
explicitly or impliedly preclude or affect the 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;
or be construed as any warranty of title.
(10)
Owner's consent. No ROW use permit expressly or impliedly authorizes
a permittee to provide any services to, or install any facilities
on, any private property without the owner's consent or to use publicly
or privately owned poles, ducts or conduits without a separate agreement
with the owners thereof for such use.
(11)
Substantially similar terms. ROW use permits and renewals entered
into after the effective date of this 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.
C.
Transitional provisions.
(1)
Persons already authorized to use the right-of-way. Any non-PUC-regulated
entity holding a permit or other authorization from the 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: i) the conclusion of
the present term of its existing authorization, or ii) 180 days after
the date on which this article is amended, 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 the Chapter and shall be
subject to the terms and conditions of this article.
(2)
Pending applications. Applications for an authorization to occupy
or use the right-of-way that are pending on the date on which this
article is amended 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.
(3)
Operating without right-of-way use authorization. Any non-PUC-regulated
entity that owns or operates any of the 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 date on which this
article is amended to file one or more applications for a ROW use
authorization. Any entity timely filing such an application shall
not be subject to penalties for failure to hold such a ROW use authorization,
provided that said application remains pending. Nothing herein shall
relieve any person of any liability for its failure to obtain any
permit or other authorization required under other provisions of this
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.
D.
Cable franchise or open video system franchise.
(1)
Franchise required.
(a)
No person may own, construct, operate or maintain a cable system
or open video system within the 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.
(b)
To the extent permitted by law, facilities used to provide telecommunications
service, information service or any form of services similar to cable
service or OVS service that are also used to provide cable service
or OVS service, shall be subject to this article and shall also require
a right-of-way use permit pursuant to this article.
(2)
Effect of authorization.
(a)
A cable franchise or an OVS franchise shall not confer any authority
to provide any form or type of telecommunications service or information
service in addition to the cable service or OVS service authorized
by the franchise. To the extent permitted by law, a separate right-of-way
use permit pursuant to this article, in addition to the cable franchise
or OVS franchise, shall be required before any franchisee is permitted
to use facilities in the right-of-way to furnish any form or type
of telecommunications service or information service.
(b)
In the event of a conflict between the provisions of this article
and a cable franchise agreement or OVS agreement in effect on the
effective date of this article, the provisions of the cable franchise
agreement or OVS agreement shall govern.
E.
Alteration or modification of existing facilities.
(1)
Alteration or modification of existing facilities. The permittee
must notify the Township upon alteration or modification of existing
facilities within the rights-of-way. The permittee must additionally
provide an updated facilities map if facilities have been removed
from or added to the rights-of-way.
(2)
Change in information. If there are any changes in information provided
in the original permit application, the permit holder has an obligation
to notify the Township within 60 days of such changes.
F.
Construction in the rights-of-way.
(1)
Street opening permits. Except in the case of an emergency, no non-PUC-regulated entity shall perform any street excavation in the rights-of-way without first obtaining a street opening permit and paying a permit fee pursuant to Chapter 231 of the Township of Lancaster Code. No person shall perform curb and sidewalk construction replacement or repair without first obtaining a curb and sidewalk permit and paying a permit fee pursuant to Chapter 231 of the Code. 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.
(2)
Construction standards. All construction, installation, maintenance,
and operation of facilities in the ROW by non-PUC-regulated entities
shall conform to the requirements of the following publications, as
from time to time amended: the Pennsylvania Department of Transportation
Publication Form 408, the National Electrical Code, and the National
Electrical Safety Code. 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.
(3)
Security. Each non-PUC-regulated entity performing construction in
the ROW shall furnish to the Township, at the person's expense, a
letter of credit or other form of financial security, in such form
and in the amount as required by the Township consistent with the
Policies and Procedures and regulations of the Township. The security
shall be a continuing obligation until the completion of the construction
as confirmed in writing by the Township. Non-PUC regulated utilities
that are performing ongoing projects or are pursuing multiple projects
under one permit shall post security as provided by this section,
which shall be held by the Township until final completion of all
construction or maintenance activities to guarantee the proper closing
and restoration of Township streets, sidewalks or ROW.
(4)
Right to inspect facilities. The Township may inspect the construction
or installation of the facilities of any non-PUC-regulated entity,
including both aerial and underground facilities, and any construction
or repair activity to ensure health and safety with respect to such
facilities, other facilities, the rights-of-way and any other public
or private property, and determine compliance with the terms of this
article and other applicable laws and regulations. Entities are required
to cooperate with all such inspections and to provide information
requested by the Township as part of the inspection.
(5)
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 Department. The applicant
shall pay all street degradation fees and comply with all related
requirements as prescribed in this article.
(6)
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 temporarily or permanently remove, relocate, change
or alter the position of any facilities within the right-of-way, excluding
those underground, whenever the Department, consistent with applicable
PUC regulations, shall have determined that such removal, relocation,
change or alteration is reasonably necessary under the following circumstances:
the construction, repair, maintenance, or installation of any 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.
(7)
Coordination of construction activities. By March 1 of each year,
or at such other time as the Township and permittees may agree, each
right-of-way use permittee shall provide the Department with a schedule
(including plans and projected start and finish dates for each project)
of its planned construction activities for the following year which
may affect the rights-of-way. The schedule shall depict all planned
construction activities the permittee is committed to perform within
the year.
(8)
Damage to facilities or property. A permittee, including any contractor
working for a permittee, shall avoid damage to any facilities and/or
public or private property. If any facilities and/or public or private
property are damaged by permittee, including any contractor working
for 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.
(9)
Facilities maps. Each non-PUC-regulated entity 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 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
Pa.C.S.A. § 708.
(10)
Field marking. Each permittee shall field-mark the locations
of its underground facilities upon request by other permittees, public
utilities or the Township, consistent with the requirements of the
Pennsylvania Underground Utility Line Protection Act and at no cost
to the Township.
G.
Right-of-way maintenance fee.
(1)
Compensation for right-of-way use. Occupancy of Township rights-of-way
by any utility is subject to the Township's right to fix annually
a fair and reasonable compensation, which shall be directly related
to the Township's actual right-of-way maintenance costs.
(2)
Annual right-of-way maintenance 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 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 Township Board of Supervisors
and shall be based on the Township's actual ROW maintenance costs.
The annual right-of-way maintenance fee shall be fixed on a per-linear-foot
basis for underground facilities and on a per-linear-foot basis for
aerial facilities. If subject to a cable franchise agreement, the
permittee shall not be required to remit both a cable franchise fee
amount and an annual right-of-way maintenance fee to the Township;
such permittee shall pay the higher of the two fees to the Township.
A.
Penalties.
(1)
PUC-regulated utilities.
(a)
In the event a public utility is found by the Township to have
violated a PUC regulation, standard, or order, then the Township may
bring a complaint against such public utility before the Public Utility
Commission for violation of such regulation, standard, or order. The
Township may also notify the utility of the existence of any suspected
violation of PUC standards, regulations or order in order to obtain
compliance by the utility.
(b)
In the event a public utility is found to have violated any
other provision of this article that is not within the exclusive jurisdiction
of the PUC, then such public utility shall be subject, upon conviction
thereof, to a fine not exceeding $300, for each and every offense,
together with attorneys' fees and costs, and, in default of the payment
thereof, imprisonment for not more than 90 days. A separate and distinct
violation shall be deemed to be committed each day on which a violation
occurs or continues to occur. In addition to an action to enforce
any penalty imposed by this article and any other remedy at law or
in equity under this title, the Township 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 article which is not subject to the exclusive jurisdiction
of the PUC.
(c)
Nothing in this section shall be construed to permit the Township
to commence or attempt to commence prosecution of any PUC-regulated
utility for a violation of any regulation, standard or order of the
PUC.
(2)
Non-PUC-regulated entities. Any entity not regulated by the PUC that
is found by the Township to have violated any provision of this article
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 article and any other remedy at law or in equity under this
title, the Township 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 article.
B.
Determination of violation. In the event a determination is made
that a person has violated any provision of this article or right-of-way
use permit, such person shall be provided written notice of the determination
and the reasons therefor. Except in the case of an emergency, the
person shall have 30 days to cure the violation. If the nature of
the violation is such that it cannot be fully cured within such time
period, the Township may, in its reasonable judgment, extend the time
period to cure, provided that the person has commenced to cure and
is diligently pursuing its efforts to cure. If the violation has not
been cured within the time allowed, the Township may take any and
all actions authorized by this article and/or Pennsylvania law and
regulations.
A.
Substantial breach. The Township reserves the right to revoke any
right-of-way use permit without a fee refund, if there is a substantial
breach of the terms and conditions of any statute, ordinance, rule
or regulation, or any material condition of the permit. A substantial
breach by a permittee includes but is not limited to the following:
(1)
The violation of any material provision of the right-of-way permit;
(2)
An evasion or attempt to evade any material provision of the right-of-way
permit, or the perpetration or attempt to perpetrate any fraud or
deceit upon the Township or its citizens;
(3)
Any material misrepresentation of fact in the application for a right-of-way
permit;
(4)
The failure to complete the work in a timely manner, unless a permit
extension is obtained or unless the failure to complete work is due
to reasons beyond the permittee's control; or
(5)
The failure to correct, in a timely manner, work that does not conform
to a condition indicated on an order issued in accordance with the
Township's inspection of the work.
B.
Written notice of breach. If the Township determines that the permittee
has committed a substantial breach of a term or condition of any statute,
ordinance, rule or any condition of the permit, the Township shall
make a written demand upon the permittee to remedy such violation.
The demand shall state that continued violations may be cause for
renovation of the permit. The Township, at its discretion, may place
additional or revised conditions on the permit in the event of a breach
of the terms and conditions of the permit to mitigate and remedy the
breach.
C.
Response to notice of breach. Within 24 hours of receiving modification
of the breach, the permittee shall provide the Township with a plan,
acceptable to the Township, to cure the breach. Permittee's failure
to timely submit an acceptable plan, or permittee's failure to reasonably
implement the approved plan, shall be cause for immediate revocation
of the permit. Further, permittee's failure to so contact the Township,
or permittee's failure to submit an acceptable plan, or permittee's
failure to reasonably implement the approved plan shall automatically
place the permittee on probation for one full year.
D.
Reimbursement of Township costs. When a permit is revoked by the
Township, the permittee shall reimburse the Township for the Township's
reasonable costs, including restoration costs and the costs of collection
and reasonable attorney's fees, incurred in connection with such revocation.
A.
Emergency situations.
(1)
Each permittee shall immediately notify the Public Works Superintendent
for the Township of any event regarding its facilities that it considers
to be an emergency. The permittee may proceed to take whatever actions
are necessary to respond to the emergency without first obtaining
a permit. Excavators' notification to Pennsylvania One-Call regarding
an emergency situation does not fulfill this requirement. Within two
business days after the occurrence of the emergency, the permittee
shall apply for the necessary permits, pay the fees associated therewith,
and complete the requirements necessary to bring itself into compliance
with this article for the actions it took in response to the emergency.
(2)
If the Township becomes aware of an emergency regarding a permittee's
facilities, the Township will attempt to contact the local representative
of each permittee affected, or potentially affected, by the emergency.
In any event, the Township may take whatever action it deems necessary
to respond to the emergency, the cost of which shall be borne by the
permittee whose facilities occasioned the emergency.
B.
Nonemergency situations. Except in an emergency, any person who,
without first having obtained the necessary permit, obstructs or excavates
a right-of-way must subsequently obtain a permit and, as a penalty,
pay twice the fee for said permit, pay twice all the other fees required
by the Township, deposit with the Township the fees necessary to correct
any damage to the right-of-way, and comply with all of the requirements
of this article.
A.
Proprietary information.
(1)
If a person 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 person shall mark such information as proprietary
and confidential. Subject to the requirements of the Right-to-Know
Act of 2009, 65 P.S. § 67.101 et seq., as amended, and other
applicable law, the 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 person in the following circumstances: i) 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 ii) 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 person does not obtain a protective
order barring disclosure of the information from a court of competent
jurisdiction within 30 days following receipt of the Township's notice,
then the Township may disclose the information without further notice
to the person.
(2)
The Township may, but is not required to, waive or grant an exception
to any of the provisions of this article in the event of emergency
or for other cause shown by the applicant which would support such
a waiver or exception.
B.
Leased facilities. Subject to the provisions of this article and
with prior written approval of the Township, a non-PUC-regulated entity
shall have the right to furnish any facilities for which it has the
applicable authorization to own, construct, operate and/or maintain
in the right-of-way to another person for the latter's use in constructing
or operating its own facilities in the right-of-way, provided that:
(1)
The entity furnishing its facilities to another shall first deliver
to the Township notice that there is a fully signed and executed lease,
rental agreement, or other agreement with such other person pursuant
to which the facilities are to be furnished; and
(2)
The person to which the facilities are furnished shall comply with
all of the requirements of this article and other applicable 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 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 Code 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 prepare such
written policies and procedures consistent with this article as the
Township deems necessary for the implementation of this article. Such
policies and procedures shall be prepared and promulgated by the Public
Works Superintendent and adopted by the Township.
H.
Lancaster Township, its employees, authorized agents and representatives,
shall be exempt from the provisions of this Ordinance and the Policies
and Procedures adopted and promulgated hereunder.
I.
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.
J.
Severability. If any section, subsection, sentence, clause, phrase
or word of this article is for any reason held illegal or invalid
by any court of competent jurisdiction, such provision shall be deemed
a separate, distinct and independent provision, and such holding shall
not render the remainder of this article invalid.
K.
When effective. This Ordinance shall take effect five days after
enactment by the Board of Supervisors of the Township of Lancaster
as provided by law.
