[Adopted 11-16-2016 by Ord. No. 2016-07]
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.
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 serves 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,[1] as amended as of the time of enactment of this article.
A network of spatially or geographically separated antenna
nodes that are connected to a common source (hub) through a transport
or communication medium in order to provide wireless communication
service in a specific locality.
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 below.
A person who enjoys a nonexclusive privilege to occupy or
use a public right-of-way to provide nonexempt service under this
article and who is in continuous compliance with this article.
All gross revenue of grantee or any affiliate of grantee
derived from the use or occupancy of right-of-way for the provision
of nonexempt 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
the 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.
Any equipment that facilitates the transmission for any Commission-licensed
or -authorized wireless commercial communications service, including
but not limited to antennae, transmitters, receivers, cabling, power
supplies, and accessory equipment associated with and necessary for
their operation. This shall not include support structures, such as
monopoles, poles, towers, etc.
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 to any department or
agency of the Township.
The surface of and the space above and below any real property
in the Township set aside for streets, highways, avenues, roads, alleys,
sidewalks, tunnels, viaducts, bridges, skyways, or any other public
place, area or property under the control of the Township or commonwealth,
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 or commonwealth.
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 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 built and used for the sole or primary
purpose of supporting one or more Commission-licensed or -authorized
antennae, and their associated facilities. DAS hub facilities are
considered to be tower-based CCFs.
The Code of the Township of Lower Saucon, Northampton County,
Pennsylvania.
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.
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.
[1]
Editor's Note: See 47 U.S.C. § 609.
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 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.
Further, unless the applicant proposes a collocation meeting the criteria outlined in Zoning Ordinance, § 180-127.1B(1)(a), the applicant must demonstrate that all property owners located with 1,000 feet of the proposed location of a commercial communication facility as defined in § 140-22, have been notified of the proposed facility installation.
[1]
Editor's Note: Said appendix is included as an attachment
to this article.
A.Â
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 this article.
Continuous compliance with this article grants to grantee a nonexclusive
privilege to construct, repair, remove, relocate or perform any 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 residences or businesses
within the Township.
B.Â
Exemptions. This article shall not apply to the occupation or use
of the right-of-way to provide:
(1)Â
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.
(2)Â
The transportation of artificial or natural gas, electricity, petroleum
or petroleum products or water or any combination of such substances
for the public.
(3)Â
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.
(4)Â
The diverting, developing, pumping, impounding, distributing or furnishing
of water from either surface or subsurface sources to or for the public.
(5)Â
The collection, treatment or disposal of sewage for the public.
(6)Â
The conveyance or transmission of messages or communications except as set forth in § 140-24C, by telephone or telegraph for the public.
(7)Â
The diverting, pumping or impounding of water for the development
or furnishing of hydroelectric power to or for the public.
(8)Â
The transportation of oxygen or nitrogen, or both, by pipeline or
conduit for the public.
C.Â
Cable service.
(1)Â
Commercial communications facilities not exempt. Wireless telecommunication facilities proposed within rights-of-way are not exempt and are subject to the requirements of this article. This article 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, antennae and aerial masts which are regulated pursuant to §§ 180-127.1 and 180-129 of the Lower Saucon Township Zoning Ordinance.[1]
(2)Â
This article 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.
(3)Â
This article 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.
B.Â
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 article, including aboveground facilities. All co-located facilities are subject to the requirements outlined in the Zoning Ordinance, § 180-127.1B.
C.Â
Installation of new facilities. Tower-based facilities may be installed aboveground subsequent to the enactment of this article if they are installed within the right-of-way in accordance with Zoning Ordinance, § 180-127.1A.
D.Â
The authorization of the installation of facilities hereunder shall
not exempt an applicant from compliance with the requirements of any
other ordinance of Lower Sacuon Township.
A.Â
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.
B.Â
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.
C.Â
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.
D.Â
All such work in the rights-of-way shall be performed in accordance
with applicable safety codes and technical requirements.
E.Â
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 form as well
as in an 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.
F.Â
The grantee may make excavations in rights-of-way for any facility subject to obtaining excavation permits from the Township, in accordance with Article I of Chapter 140. Prior to doing such work, grantee must apply for, and obtain, appropriate permits from the Township, and give appropriate notices 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.
G.Â
Nothing in this article 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 municipal authority
due to grantee's delay.
A.Â
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; and
B.Â
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 Township Council 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 article, 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 Council,
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 subsection shall not include costs
recovered by any other fee provided in this article or in related
chapters.
A.Â
The grantee shall 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 article, whether or not any act or omission complained of is
authorized, allowed and/or prohibited by this article and the rights
granted thereunder.
B.Â
Insurance.
(1)Â
Grantee shall obtain and maintain in full force and effect throughout
the term of this article 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 or better by Standard and
Poor's. Grantee shall provide Township with proof of such insurance
so required.
(2)Â
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.
|
Workers' compensation and statutory employers liability
|
$100,000/$500,000 $100,000
| ||
|
b.
|
Commercial general (public) liability, to include coverage for
the following where the exposure exists:
| |||
|
Premises operations
|
Combined single limit for bodily injury and property damages:
$2,000,000 per occurrence or its equivalent
| |||
|
Independent contractors
| ||||
|
Products/completed operations
| ||||
|
Contractual liability
| ||||
|
Explosion, collapse and underground property damage
| ||||
|
c.
|
Comprehensive vehicle insurance coverage for loading and unloading
hazards for:
| |||
|
Owned/leased vehicles
|
Combined single limit of bodily injury and property damage:
$1,000,000 per occurrence or its equivalent
| |||
|
Nonowned vehicles
| ||||
|
Hired vehicles
| ||||
(3)Â
The Township shall receive without expense copies of certificates
of insurance evidencing coverage stated above.
(4)Â
Grantee agrees that with respect to the above-required insurance,
all insurance certificates will contain the following required provisions:
(a)Â
Name the Township and its officers, employees, Council 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);
(b)Â
Provide for 60 days' written notice to the Township for cancellation,
nonrenewal, or material change;
(c)Â
Provide that all provisions of this article 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.
(5)Â
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 damage covered by these policies.
C.Â
Bonds.
(1)Â
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 article.
(2)Â
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 article or limit grantee's liability for damages.
(3)Â
The bond shall contain the following endorsement: "It is hereby understood
and agreed that this bond may not be cancelled by the surety nor any
intention not to renew be exercised by the surety until 60 days after
receipt by Lower Saucon Township, by registered mail, of written notice
of such intent."
D.Â
All expenses of the above-noted insurance and bond shall be paid
by the grantee.
E.Â
The insurance policies mentioned herein shall contain an endorsement
stating the following: "Should any policies of insurance be cancelled
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."
F.Â
Neither the provisions of this article 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.
A.Â
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 article in the
event of willful or repeated violation of this article.
B.Â
Penalties. Any person which commits or suffers the violation of this
article shall, upon being found liable in a civil enforcement proceeding
commenced by the Township, pay a fine of $600 plus all court costs,
including reasonable attorneys' fees incurred by the Township. A separate
offense shall arise for each day or portion thereof in which a violation
is found to exist or for each section of this article which is found
to have been violated. In addition, the Township also may enforce
this article by an action brought in equity.
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.
