[Ord. 378, 11/9/2016]
This Part shall be known
as the "Plainfield Township Right-of-Way Management Ordinance."
[Ord. 378, 11/9/2016]
Terms used in this Part shall have the following meanings, whether
or not the terms are capitalized. Unless otherwise expressly stated,
terms not defined in this Part shall be construed consistent with
Title 47 of the United States Code, and, if not defined therein, with
their common and ordinary meaning.
A person that (directly or indirectly) owns or controls,
is owned or controlled by, or is under common ownership or control
with another person.
Any device used for the transmission of radio, television,
wireless telephone, pager, commercial mobile service, or any other
wireless signals.
Facilities consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide service which includes video programming
and which is provided to multiple subscribers within the Township;
but such term does not include:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
A facility that services subscribers without using any right-of-way;
A facility of a common carrier which is subject, in whole or
in part, to the provisions of Title II of the Communications Act of
1934, as amended, except that such facility shall be considered a
cable system [other than for purposes of 47 U.S.C. § 541(c)]
to the extent such facility is used in the transmission of video programming
directly to subscribers, unless the extent of such use is solely to
provide interactive on-demand services;
An open video system that complies with 47 U.S.C. § 573;
or
Any facilities of any electric utility used solely for operating
its electric utility system.
The antenna, nodes, control boxes, towers, poles, conduits,
ducts, pedestals, electronics and other equipment used for the purpose
of transmitting, receiving, distributing, providing, or accommodating
wireless communications services.
The Communications Act of 1934, as amended as of the time
of enactment of this Part.
Any tangible asset used to install, repair, or maintain a
facility in the right-of-way.
Conduit, pipes, cables, wires, lines, towers, optic fiber,
poles, associated equipment and appurtenances, and any other facilities
located in the right-of-way and designed, constructed, and/or used,
by telecommunications providers, public utilities, or other persons
for transmitting, transporting, or distributing communications, telecommunications,
electricity, natural gas or manufactured gas, oil, gasoline, steam,
or any other form of energy, signal or substance. The term "facility"
or "facilities" may include "commercial communications facilities"
as defined above.
A person who enjoys a nonexclusive privilege to occupy or
use a public right-of-way to provide nonexempt service under this
Part and who is in continuous compliance with this Part.
All gross revenue of grantee or any affiliate of grantee
derived from the use or occupancy of right-of-way for the provision
of non exempt services to persons having a residence or place of business
in the Township.
"Gross revenue" shall include amounts earned, regardless of:
Whether the amounts are paid in cash, in trade, or by means
of some other benefit to grantee or its affiliates;
Whether the services with which the revenue is associated are
provided at cost or the revenue amount can be matched against an equivalent
expenditure; and/or
How amounts are initially recorded by grantee or its affiliates.
"Gross revenue" shall not be a net of:
Expense, including but not limited to any operating expense;
capital expense; sales expense; or commission;
Any accrual, including, without limitation, any accrual for
commissions; or
Any other expenditure, regardless of whether such expense, deduction,
accrual, or expenditure reflects a cash payment.
"Gross revenue" shall not be double counted, viz., "gross revenue"
which has been included as gross revenue of both grantee and an affiliate
but which sum is included in gross revenue due solely to a transfer
of funds between grantee and the affiliate shall not be counted for
purposes of determining gross revenue.
All non-tower wireless communications facilities, including
but not limited to antennas and related equipment. Non-tower CCF shall
not include support structures for antennas and related equipment.
Corporations, companies, associations, joint stock companies,
firms, partnerships, limited liability companies, and other entities;
municipal, industrial development, housing, redevelopment, and other
authorities and corporations established pursuant to statutes of the
Commonwealth of Pennsylvania; and individuals; provided, that person
does not include or apply to the Township or any department of agency
of the Township.
The state administrative agency, or lawful successor thereto,
authorized to regulate and oversee public utilities and telecommunications
providers and telecommunications services in the Commonwealth of Pennsylvania,
to the extent provided by law.
Shall be defined as that term is defined in the Pennsylvania
Code as of the effective date of this chapter, and as hereafter amended.
The surface of and space above and below any real property
in the Township in which the Township or the Commonwealth has a regulatory
interest, or interest as a trustee for the public, as such interests
now or hereafter exist, including, but not limited to, all streets,
highways, avenues, roads, alleys, sidewalks, tunnels, viaducts, bridges,
skyways, or any other public place, area or property under the control
of the Township, and any unrestricted public or utility easements
established, dedicated, platted, improved or devoted for utility purposes
but excluding lands other than streets that are owned by the Township.
The phrase "in the right(s)-of-way" means "in, on, over, along, above
and/or under the right(s)-of-way."
Any telecommunications service, cable service, video programming
service, information service, utility service (including, but not
limited to, electric, gas, water, or steam service), or other form
of service provided by means of facilities located in the right-of-way.
A strip of land or part thereof within the right-of-way,
whether dedicated or not, that is intended or used for vehicular and
pedestrian traffic. The phrase "in the (a) street(s)" means "in, on,
over, along, above and/or under the (a) street(s)."
Any 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.
Any structure that is used for the purpose of supporting
one or more antennas, including, but not limited to, self-supporting
lattice towers, guy towers and monopoles, utility poles and light
poles and hub facilities for distributed antenna systems.
The person engaged by the Township to perform engineering
services on behalf of the Township.
All real property now or hereafter owned by the Township
whether in fee ownership or other interest.
All construction work performed by the Township, or any of
its departments, either with its own personnel or under contract,
including repair, alteration, replacement or maintenance of facilities
owned, operated, maintained or controlled by the Township or for which
the Township is responsible.
Utility and telecommunications facilities located under the
surface of the ground, excluding the underground foundations or supports
for tower-based facilities.
The antennas, nodes, control boxes, towers, poles, conduits,
ducts, pedestals, electronics and other equipment used for the purpose
of transmitting, receiving, distributing, providing, or accommodating
wireless telecommunications services.
A freestanding structure, such as a tower-based CCF or any
other support structure that could support the placement or installation
of a commercial communications facility.
[Ord. 378, 11/9/2016]
Each person, other than on a transitory basis, who occupies
or uses or seeks to occupy or use the right-of-way to provide a nonexempt
service to persons, residences or businesses within the Township,
or places any equipment or facility in a right-of-way other than on
a transitory basis, including persons with installation and maintenance
responsibilities by lease, sublease or assignment, must register with
the Township. A completed Provider Certification Form (included as
Appendix A)[1] and associated documents as outlined on the form shall
be submitted to and accepted by the Township.
[1]
Editor's Note: Appendix A is included as an attachment to
this Chapter.
[Ord. 378, 11/9/2016]
1.
It shall be unlawful for any person to construct, repair, remove,
relocate or perform any work on or use any facilities or any part
thereof in a right-of-way unless in compliance with these rights-of-way
management provisions. Continuous compliance with these right-of-way
provisions grants to grantee a nonexclusive privilege to construct,
repair, remove, relocate or perform and work on or use any facilities
or any part thereof in the rights-of-way within the Township and to
occupy or use the rights-of-way for the purpose of providing nonexempt
service to persons, residences or businesses within the Township.
2.
Exemptions. These right-of-way management provisions shall not apply
to the occupation or use of the right-of-way to provide:
A.
The transportation of passengers or property or both as a common
carrier by means of elevated street railway, inclined plane railway,
railroad, street railway or underground street railway, trackless-trolley
omnibus or by any combination of such means.
B.
The transportation of artificial or natural gas, electricity, petroleum
or petroleum products or water or any combination of such substances
for the public.
C.
The production, generation, manufacture, transmission, storage, distribution
or furnishing of natural or artificial gas, electricity, steam, air
conditioning or refrigerating service or any combination thereof to
or for the public.
D.
The diverting, developing, pumping, impounding, distributing or furnishing
of water from either surface or subsurface sources to or for the public.
E.
The collection, treatment or disposal of sewage for the public.
F.
The conveyance or transmission of messages or communications except as set forth in Subsection 3 of this Section, by telephone or telegraph for the public.
G.
The diverting, pumping or impounding of water for the development
or furnishing of hydroelectric power to or for the public.
H.
The transportation of oxygen or nitrogen, or both, by pipeline or
conduit for the public.
I.
Any ancillary service reasonably necessary or appropriate for the
accomplishment of services specified in Subsection 2A through H above.
J.
Cable service.
3.
Commercial Communications Facilities and Wireless Communications Facilities Not Exempt. Wireless communication facilities proposed within rights-of-way are not exempt and are subject to the requirements of this Part. This Part does not exempt any person or corporation who or which furnishes, installs or maintains wireless telecommunication facilities, including the installation of relay stations and facilities, communications facilities, aerials, antennas and wireless communications facilities and aerial masts which are regulated pursuant to the provisions of Chapter 27, Zoning, as amended, and as may further be revised in the future.
4.
This Part does not authorize a person to provide cable service. A
person seeking to provide cable service must obtain permission from
the Township under separate legislation of the Township.
5.
This Part does not authorize the grantee to attach to any pole or
other structure in the right-of-way, devices for the intentional transmission
or radiation of radio frequency emissions or energy by any means now
known or hereafter developed.
[Ord. 378, 11/9/2016]
2.
Co-Location of Facilities. Facilities may be co-located on wireless support structures and other facilities, including poles that exist on or before the enactment date of this Part, including aboveground facilities. All co-located facilities are subject to the applicable requirements outlined in Chapter 27, Zoning, as amended.
3.
Installation of New Facilities. Tower-based facilities shall only be installed above ground subsequent to the enactment of this Part if they are installed within the right-of-way in accordance with the requirements of Chapter 27, Zoning, as amended.
4.
The authorization of the installation of facilities hereunder shall
not exempt an applicant from compliance with the requirements of any
other ordinance of Plainfield Township.
[Ord. 378, 11/9/2016]
1.
All facilities and equipment installed or erected by the grantee
pursuant to the terms hereof shall be located so as to cause a minimum
of interference with the proper use of rights-of-way and with the
rights and reasonable convenience of property owners who own property
that adjoins any of said rights-of-way.
2.
If during the course of grantee's construction, operation, and/or
maintenance of its facilities and equipment there occurs a disturbance
of any right-of-way by the grantee, the grantee, shall, at its expense,
replace and restore such right-of-way to a condition which existed
immediately prior to such disturbance. If grantee excavates the surface
of any right-of-way, grantee shall be responsible for restoration
of the right-of-way and its surface within the area affected by the
excavation. The Township reserves the right, after providing notice
to grantee, to remove and/or repair any work done by grantee which
is inadequate. The reasonable cost thereof, including the cost of
inspection and supervision, shall be paid by the grantee. All excavations
made by grantee in the right-of-way shall be properly safeguarded
for the prevention of accidents.
3.
The grantee shall notify Township and all affected property owners
regarding grantee's need to trim trees or other natural growth
upon and overhanging rights-of-way so as to prevent the branches of
such trees from coming in contact with its facilities or equipment.
Trimming shall be limited to the area required to clear its facilities
or equipment. The Township shall be notified 48 hours in advance of
any tree or shrub trimming or clearing, and at the discretion of the
Township, appoint a designee to inspect and monitor trimming and clearing
operations.
4.
All such work in the rights-of-way shall be performed in accordance
with applicable safety codes and technical requirements.
5.
Prior to beginning any construction of facilities, the grantee shall
provide the Township with a construction schedule for work in the
right-of-way, which schedule shall be updated as changed. Upon completion
of initial construction and upon completion of construction of any
modification to its facilities, the grantee shall provide the Township
with a map showing the location of its installed facilities in the
rights-of-way. Such maps shall be provided in both paper forms, as
well as in electronic format for placement on the Township's
GIS system. Annually thereafter, the grantee shall provide a map to
the Township showing the location of the grantee's facilities
in the rights-of-way on a scale of 150 feet per inch or whatever standard
scale the Township adopts for general use.
6.
The grantee may make excavations in rights-of-way for any facility
subject to obtaining excavation permits from the Township. Prior to
doing such work, grantee must apply for, and obtain, appropriate permits
from the Township, and give appropriate notice to any other licensees
and/or permittees of the Township, and/or other units of government
owning or maintaining facilities which may be affected by the proposed
excavation.
7.
Nothing in this Part shall be construed to prevent the Township or
other agency of government or municipal authority from constructing
sewers, grading, paving, repairing and/or altering any street and/or
laying down, repairing and/or removing water mains and/or constructing
and/or establishing any other public work or improvement. If any of
the grantee's facilities or equipment interferes with the construction
or repair of any street or public improvement, including construction,
repair or removal of a sewer or water main, the grantee's facilities
or equipment shall be removed or replaced in the manner the respective
Township or other agency of government or municipal authority shall
direct. Any and all such removal or replacement shall be at the expense
of the grantee. Should grantee fail to remove, adjust or relocate
its facilities by the date established by the Township or other agency
of government or municipal authority, the Township or other agency
of government or municipal authority may cause and/or effect such
removal, adjustment or relocation, and the expense thereof shall be
paid by grantee, including all reasonable costs and expenses incurred
by the Township or other agency of government or municipality authority
due to grantee's delay.
[Ord. 378, 11/9/2016]
1.
Compensation for Right-of-Way Use. Every grantee registered with
the Township is subject to the Township's right to fix annually
a fair and reasonable compensation to be paid for use and occupancy
of the right-of-way. Such compensation for right-of-way use shall
be directly related to the Township's actual right-of-way management
costs including, but not limited to, the costs of issuing the permit
and the administration and performance of all reviewing, inspecting,
permitting, supervising and other right-of-way management activities
by the Township.
2.
Annual Right-of-Way Management Fee. Each grantee that is not exempt
shall pay an annual fee to the Township to compensate the Township
for its costs incurred in connection with reviewing, permitting, inspecting
and supervising the ongoing use and occupancy of the right-of-way.
The annual right-of-way management fee shall be determined by the
Township and authorized by resolution of the Township Board of Supervisors
and shall be based on the Township's actual right-of-way management
costs as applied to such grantee. This annual right-of-way management
fee shall not be adjusted for at least two years from the effective
date of this Part, except for purposes of inflation as determined
by the National Consumer Price Index published by the United States
Department of Labor. Any adjustments to the fee subsequent to two
years from the effective date shall be authorized by resolution of
Township Board of Supervisors, shall be based on the Township's
actual right-of-way management costs as applied to such grantee and
shall be implemented only after providing at least 30 days' prior
written notice to all then-current grantees. The costs recovered under
this Section shall not include costs recovered by any other fee provided
in this Part or in related ordinances.
[Ord. 378, 11/9/2016]
1.
The grantee shall indemnify and save the Township, its agents, employees
and elected and appointed officials, harmless from and against all
claims, damages, losses and expenses, including reasonable attorney's
fees, sustained on account of any suit, judgment, execution, claim
or demand whatsoever arising out of the construction, leasing, operation
or maintenance of the grantee's equipment, facilities, and services
specified by this Part, whether or not any act or omission complained
of is authorized, allowed and/or prohibited by this Part and the rights
granted thereunder.
2.
Insurance.
A.
Grantee shall obtain and maintain in full force and effect throughout
the term of this Part insurance with an insurance company licensed
to do business and doing business in the Commonwealth of Pennsylvania
and acceptable to the Township. All companies will be required to
be rated A-VII or better by A.M. Best or A better by Standard and
Poor's. Grantee shall provide Township with proof of such insurance
so required.
B.
Grantee shall obtain and maintain in full force and effect, at grantee's
sole expense, insurance coverage in the following types and minimum
amounts:
|
Type
|
Amount
| |||
|---|---|---|---|---|
|
a.
|
Worker's compensation & statutory employers liability
|
$100,000/$500,000/$100,000
| ||
|
b.
|
Commercial general (public) - liability to include coverage
for the following where the exposure exists:
|
Combined single limit for bodily injury and property. Damages
$2,000,000 per occurrence or its equivalent.
| ||
|
Premises operations
| ||||
|
Independent contractors
| ||||
|
Products/completed operations
| ||||
|
Contractual liability
| ||||
|
Explosion, collapse and underground property damage
| ||||
|
c.
|
Comprehensive Vehicle insurance coverage for loading and unloading
hazards for:
|
Combined single limit of bodily injury and property damage $1,000,000
per occurrence or its equivalent.
| ||
|
Owned/leased vehicles
| ||||
|
Non-owned vehicles
| ||||
|
Hired vehicles
| ||||
C.
The Township shall receive without expense copies of certificates
of insurance evidencing coverage stated above.
D.
Grantee agrees that with respect to the above-required insurance,
all insurance certificates will contain the following required provisions:
(1)
Name the Township and its officers, employees, board members
and elected and appointed officials as additional insured parties
(as the interests of each insured may appear) as to all applicable
coverage (except workers' compensation);
(2)
Provide for 60 days' written notice to the Township for
cancellation, nonrenewal, or material change;
(3)
Provide that all provisions of this Part concerning liability,
duty, and standard of care, including the indemnity provisions, shall
be underwritten by contractual coverage sufficient to include such
obligations within applicable policies, subject to policy terms and
conditions.
E.
Companies issuing the insurance policies shall have no recourse against
the Township for payment of any premiums or assessments which all
are set at the sole risk of the grantee. Insurance policies obtained
by grantee shall provide that the issuing company waives all right
of recovery by way of subrogation against the Township in connection
with any damages covered by these policies.
3.
Bonds.
A.
The grantee shall obtain and maintain, at its sole cost and expense,
and file with the Township, a corporate surety bond with a surety
company authorized to do business in the Commonwealth of Pennsylvania
in the amount of 15% of grantee's estimated costs to secure grantee's
performance of its obligations and faithful adherence to all requirements
of this Part.
B.
No action, proceeding or exercise of right with respect to such bond
shall affect the Township's rights to demand full and faithful
performance under this Part or limit grantee's liability for
damages.
C.
The bond shall contain the following endorsement: "It is hereby understood
and agreed that this bond may not be canceled by the surety and any
intention not to renew be exercised by the surety until 60 days after
receipt by the Township of Plainfield, by registered mail, of written
notice of such intent."
4.
All expenses of the above-noted insurance and bond shall be paid
by the grantee.
5.
The insurance policies mentioned herein shall contain an endorsement
stating the following:
|
"Should any policies of insurance be canceled or coverages be
reduced, before the expiration date of said policies of insurance,
the issuer shall deliver 60 days' advance written notice to the
Township."
|
6.
Neither the provisions of this Part nor any insurance accepted by
the Township pursuant hereto, nor any damages recovered by the Township
thereunder, shall be construed to excuse faithful performance by the
grantee and/or limit the liability of the grantee under the ordinance
issued hereunder and/or for damages, either to the full amount of
the bond or otherwise.
[Ord. 378, 11/9/2016]
1.
General. In addition to all other rights, remedies and powers reserved
and/or retained by the Township under this rights-of-way ordinance
or otherwise, the Township reserves the right to bring a civil action
to collect any sums due to the Township by the grantee and/or forfeit
or revoke all privileges of the grantee under this Part in the event
of willful or repeated violation of this Part.
2.
Penalties. Any person which commits or suffers the violation of this
Part shall, upon being found liable in a civil enforcement proceeding
commenced by the Township, pay a fine of $1,000 plus all court costs,
including reasonable attorneys' fees incurred by the Township.
A separate offense shall arise for each or portion thereof in which
a violation is found to exist or for each section of this Part which
is found to have been violated. In addition, the Township also may
enforce this Part by an action brought in equity.
[Ord. 378, 11/9/2016]
The grantee shall at all times be subject to the exercise of
the police power of the Township. The grantee shall comply with all
lawful ordinances, codes, laws, rules and regulations of the Township,
County of Northampton, Commonwealth of Pennsylvania, and the United
States of America which are now in effect or hereafter enacted.
[Ord. 378, 11/9/2016]
Whenever the requirements of this Part are in conflict with
other requirements of the ordinances of the Township of Plainfield,
the most restrictive, or those imposing the highest standards, shall
govern. Privileges granted by this Part do not constitute a waiver
or impairment of the rights of the Township at law or equity now or
henceforth existing to proceed versus grantee for enforcement of the
Part or violation of this Part or other ordinances of the Township.
