Upper Nazareth Township
City Zoning Code
City Zoning Code
PART 9
RIGHT-OF-WAY MANAGEMENT
§ 27-901 Short Title.
[Ord. No. 199, 1/15/2025]
This Part shall be known as the "Upper Nazareth Township Right-of-Way Management Ordinance."
§ 27-902 Definitions.
[Ord. No. 199, 1/15/2025]
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.
The Communications Act of 1934,[1] 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."
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.
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 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."
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.
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.
[1]
Editor's Note: See 47 U.S.C.A. § 151 et seq.
§ 27-903 Registration.
[Ord. No. 199, 1/15/2025]
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[1] and associated documents as outlined on the form shall be submitted to and accepted by the Township.
[1]
Editor's Note: Said Form is on file in the Township offices.
§ 27-904 Authorization of Use; Exemptions.
[Ord. No. 199, 1/15/2025]
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 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.
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 plan railway, railroad, street railway or underground street, railway, tackles-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 herein, 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 one through eight above.
J.
Cable service.
3.
Commercial Communications Facilities Not Exempt. Wireless telecommunications 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 aerial masts which are regulated pursuant to other regulations or ordinances of Township, 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.
§ 27-905 Location and Regulation of Facilities.
[Ord. No. 199, 1/15/2025]
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.
3.
Installation of New Facilities. Tower-based facilities may be installed above-ground subsequent to the enactment of this Part if they are installed within the right-of-way in accordance with this chapter.
4.
The authorization of the installation of facilities hereunder shall not exempt an applicant from compliance with the requirements of any other Ordinance, as amended, of the Township.
§ 27-906 Standards of Service.
[Ord. No. 199, 1/15/2025]
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 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, in writing, 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 written 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 an electronic format for the 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 any applicable excavation permits from the Township. 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 owing 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 municipal authority due to grantee's delay.
§ 27-907 Rental and Right-of-Way Management Fees.
[Ord. No. 199, 1/15/2025]
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 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 subsection shall not include costs recovered by any other fee provided in this Part or in related ordinances.
§ 27-908 Insurance, Indemnification and Bonds or Other Surety.
[Ord. No. 199, 1/15/2025]
1.
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 Part, whether or not any act or omission complained of is authorized, allowed and/or prohibited by the Ordinance, as amended, and the rights granted thereunder.
2.
Insurance.
A.
Grantee shall oin 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 types and minimum amounts as required by and shown:
Type | Amount |
|---|---|
Worker's compensation and statutory employer's liability | $500,000/$500,000/$500,000 |
Commercial general (public) - liability to include coverage for the following where the exposure exists: | |
Premises operations independent contractors products/completed operations contractual liability explosion, collapse and underground property damage | Combined single limit for bodily injury and property. Damages $2,000,000 per occurrence or its equivalent |
Comprehensive vehicle insurance coverage for loading and unloading hazards for: | |
Owned/leased vehicles nonowned vehicles hired vehicles | Combined single limit of bodily injury and property damage $1,000,000 per occurrence or its equivalent |
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 worker's compensation);
(2)
Provide 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 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.
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 the 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 cancelled by the surety nor any intention not to renew be exercised by the surety until 60 days after receipt by the Township of Upper Nazareth, 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 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."
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, as amended, issued hereunder and/or for damages, either to the full amount of the bond or otherwise.
§ 27-909 Enforcement and Termination of Ordinance.
[Ord. No. 199, 1/15/2025]
1.
General. In addition to all other rights, remedies and powers reserved and/or retained by the Township under this rights-of-way ordinance, as amended, 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 $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 Part which is found to have been violated. In addition, the Township also may enforce this Part by an action brought in equity.
§ 27-910 Compliance with Applicable Laws and Ordinances.
[Ord. No. 199, 1/15/2025]
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.