[Adopted 7-20-2016 by Ord. No. 2016-04]
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.
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 "wireless communications facilities" as
defined below.
A person who enjoys a nonexclusive privilege to occupy or
use a right-of-way to provide nonexempt service under this article
and who is in continuous compliance with this article.
All gross revenue of the grantee or any affiliate of the
grantee derived from the use or occupancy of a 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 the 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 the 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 the grantee and an
affiliate but which sum is included in gross revenue due solely to
a transfer of funds between the grantee and the affiliate shall not
be counted for purposes of determining gross revenue.
All nontower wireless communications facilities, including
but not limited to antennas and related equipment. Nontower WCF shall
not include support structures for antennas and related equipment.
Corporations, companies, associations, joint-stock companies,
firms, partnerships, limited-liability companies, individuals, 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 and space in, on and above any real property
in which the Township has an interest in law or in equity other than
real property owned in fee by the Township.
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 a/the street(s)" means "in, on,
over, along, above and/or under a/the 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 Code of Chapters of the Township of East Caln, Chester
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.
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 WCF or any
other support structure that could support the placement or installation
of a wireless communications facility.
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. Other than as approved by the East Caln Township Board
of Supervisors, "transitory" shall not exceed 30 days. 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.
A.
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 the 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 persons, residences or businesses within the Township.
B.
Wireless communications facilities. Wireless communication facilities proposed within rights-of-way 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 telecommunications facilities, including the installation of relay stations and facilities, communications facilities, aerials, antennas and aerial masts which are regulated pursuant to § 225-14U of the East Caln Township Zoning Ordinance, as amended, and as may further be revised in the future.
C.
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.
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 Chapter, § 225-14U(2)(e).
C.
Installation of new facilities. Tower-based facilities may be installed above ground subsequent to the enactment of this article if they are installed within the right-of-way in accordance with Zoning Chapter, § 225-14U(1)(c).
D.
The authorization of the installation of facilities hereunder shall
not exempt an applicant from compliance with the requirements of any
other chapter of East Caln Township Code.
A.
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.
If during the course of the 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 the grantee
excavates the surface of any right-of-way, the 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 the grantee, to remove and/or repair any work
done by the 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 the grantee in the right-of-way
shall be properly safeguarded for the prevention of accidents.
C.
The grantee shall notify the Township and all affected property owners
regarding the 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.
All such work in the rights-of-way shall be performed in accordance
with applicable safety codes and technical requirements.
E.
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.
F.
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, the 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 owing or maintaining facilities which may be affected by
the proposed excavation.
G.
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 the 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 the grantee, including all reasonable costs and expenses incurred
by the Township or other agency of government or municipal authority
due to the grantee's delay.
A.
Compensation for right-of-way use. Every grantee registered with
the Township is subject to pay a permit fee as determined by the Township
and authorized by resolution of Township Board of Supervisors. This
fee is intended to defray any costs which may be incurred by the Township
to review the application and manage the rights-of-way with respect
to each permit holder. Such costs in managing the rights-of-way include,
but are not limited to, costs of maintaining the rights-of-way, costs
of degradation of streets and right-of-way property, administrative
costs related to the rights-of-way, and traffic control costs pertaining
to work in the rights-of-way.
B.
Annual right-of-way management fee. Each grantee that is not exempt
shall pay an annual fee as determined by the Township and authorized
by resolution of Township Board of Supervisors to compensate the Township
for its costs incurred in connection with inspecting and supervising
the ongoing use and occupancy of the right-of-way. The costs recovered
under this subsection shall not include costs recovered by any other
fee provided in this article or in related chapters.
A.
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.
Insurance.
(1)
The 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
Poors. The grantee shall provide the Township with proof of such insurance
so required.
(2)
The grantee shall obtain, and maintain in full force and effect,
at the grantee's sole expense, insurance coverage in the following
types and minimum amounts:
(a)
Workers Compensation and statutory employer's liability:
$100,000/$500,000/$100,000.
(b)
Commercial general (public) liability, to include coverage for
the following where the exposure exists: premises operations; independent
contractors; products/completed operations; contractual liability;
and explosion, collapse and underground property damage: Combined
single limit for bodily injury and property damages at $2,000,000
per occurrence or its equivalent
(c)
Comprehensive vehicle insurance coverage for owned/leased vehicles,
nonowned vehicles, and hired vehicles: combined single limit for bodily
injury and property damage at $1,000,000 per occurrence or its equivalent
(3)
The Township shall receive, without expense, copies of certificates
of insurance evidencing coverage stated above.
(4)
The grantee agrees that, with respect to the above-required insurance,
all insurance certificates will contain the following required provisions:
(a)
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), and shall provide documentation
of same to the Township;
(b)
Provide for 60 days' written notice to the Township for
cancellation, nonrenewal, or material change;
(c)
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)
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 the 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.
Bonds.
(1)
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 the grantee's estimated costs to secure
the grantee's performance of its obligations and faithful adherence
to all requirements of this article.
(2)
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 the grantee's liability
for damages.
(3)
The bond shall contain the following endorsement: "It is hereby understood
and agreed that this bond may not be canceled by the surety nor any
intention not to renew be exercised by the surety until 60 days after
receipt by the Township of East Caln, by registered mail, of written
notice of such intent."
D.
All expenses of the above-noted insurance and bond shall be paid
by the grantee.
E.
The insurance policies mentioned herein shall contain an endorsement
stating the following:
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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.
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F.
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 this
article issued hereunder and/or for damages, either to the full amount
of the bond or otherwise.
A.
General. In addition to all other rights, remedies and powers reserved
and/or retained by the Township under this rights-of-way article 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.
Penalties. Any person that 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 Chester, Commonwealth of Pennsylvania, and the United States
of America which are now in effect or hereafter enacted.
