[HISTORY: Adopted by the Town Council of
the Borough of Chambersburg 3-13-2006 by Ord. No. 2006-1. Amendments noted where
applicable.]
This chapter shall be known as the "Borough
of Chambersburg Rights-Of-Way Ordinance."
For the purpose of this chapter, the following
terms, phrases, words and abbreviations shall have the meanings ascribed
to them below. When not inconsistent with the context, words used
in the present tense include the future tense, words in the plural
number include the singular number and words in the singular number
include the plural number:
A person:
A.
With a direct or indirect ownership interest in the
subject entity of 5% or more or which controls such interest, including
forms of ownership such as general, limited, or other partnership
interests, direct ownership interests, limited liability companies
and other forms of business organizations and entities but, not including
corporations;
B.
With a stock interest in the subject entity where
the subject entity is a corporation and such stockholder or its nominee
is an officer or director of the grantee or who directly or indirectly
owns or controls 5% or more of the outstanding stock, whether voting
or nonvoting; or
C.
BOROUGH
CABLE SERVICE
COMMUNICATIONS ACT
EQUIPMENT
EXEMPT
FACILITY
GRANTEE
GROSS REVENUE
INFORMATION SERVICE
INFRASTRUCTURE
NONEXEMPT
PERSON
PUBLIC WAY
SERVICE AREA
TELECOMMUNICATIONS
TELECOMMUNICATIONS SERVICE
Which controls grantee and/or, is controlled by, or
is under common control with such person or entity.
The Borough of Chambersburg, Commonwealth of Pennsylvania,
or the lawful successor, transferee, or assignee thereof.
The same meaning as used in the Communications Act.
The Communications Act of 1934, as amended as of the time
of enactment of this chapter.
Any tangible asset used to install, repair, or maintain a
facility in the public way.
A service which is provided to residences or businesses within the service area, but which is exempt from the provisions of this chapter under § 238-4B, Exemptions, of this chapter.
Any tangible asset in the public way used or required to
provide a nonexempt service to residences or businesses within the
service area.
A person who enjoys a nonexclusive privilege to occupy or
use a public way to provide nonexempt service under this chapter and
who is in continuous compliance with this chapter.
All gross revenue of grantee or any affiliate of grantee
derived from the use or occupancy of public ways for the provision
of nonexempt services to persons having a residence or place of business
in the service area. "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.
The offering of a capability for generating, acquiring, storing,
transforming, processing, retrieving, utilizing, or making available
information via telecommunications, and includes electronic publishing,
but does not include any use of any such capability for the management,
control, or operation of a telecommunications system or the management
of a telecommunications service. Cable modem service and wireline
broadband Internet access service are examples of an information service.
All wires, cables, ducts, conduits, vaults, poles and other
necessary facilities owned and/or used by the grantee for the purpose
of providing telecommunications service and/or for providing information
service located in, under and above a public way. Infrastructure shall
not include any wireless transmission media or equipment, including
but not limited to radio energy transmitting and receiving devices
and antennas.
A service which is provided to residences or businesses within the service area, but which is not exempt from the provisions of this chapter under § 238-4B, Exemptions, of this chapter.
Any natural person, sole proprietorship, partnership, association,
limited liability company, corporation or other form of organization
or juridical person authorized to do business in the Commonwealth
of Pennsylvania and provides or seeks to provide one or more nonexempt
services to residences or businesses in the service area. A governmental
entity or a municipal authority is not a person.
The surface of, and the space above and below, any public
street, unopened right of way, highway, turnpike, bridge, land path,
alley, court, boulevard, sidewalk, parkway, way, lane, public way,
drive, circle, or other public right of way held by the Borough in
the service area. "Public way" shall also mean any easement now or
hereafter held by the Borough within the service area for the purpose
of public travel and/or for utility and/or public service use dedicated
for compatible uses.
The present municipal boundaries of the Borough, and shall
include any additions thereto by annexation or other legal means.
The transmission, between or among points specified by the
user, of information of the user's choosing, without change in the
form or content of the information as sent and received.
The offering of telecommunications for a fee directly to
the public, or to such classes of users as to be effectively available
directly to the public, regardless of the facilities used.
[Amended 5-14-2012 by Ord. No. 2012-06]
Each person who occupies or uses or seeks to
occupy or use a public way other than on a transitory basis to provide
a nonexempt service to residences or businesses within the service
area, or places any equipment or facility in a public way other than
on a transitory basis, including persons with installation and maintenance
responsibilities by lease, sublease or assignment, must register with
the Borough. Registration is accomplished by filing with the Borough
a completed provider certification in the form shown at Appendix A
to this chapter.[1] Compliance with the provisions of Chapter 226, Article III, relating to temporary signs and banners, shall be deemed compliant with the registration requirements of this section.
[1]
Editor's Note: Appendix A is on file in the
Borough offices.
A.
Grant. Continuous compliance with this chapter grants
to grantee a nonexclusive privilege to occupy or use the public ways
for the purpose of providing nonexempt service to residences or businesses
within the service area. Occupation or use of the public ways for
the purpose of providing nonexempt service to residences or businesses
within the service area not in compliance with this chapter shall
be unlawful.
B.
Exemptions. This chapter shall not apply to occupation
or use of the public ways to provide:
(1)
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)
The transportation of artificial or natural gas, electricity,
petroleum or petroleum products or water or any combination of such
substances for the public.
(3)
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)
The diverting, developing, pumping, impounding, distributing
or furnishing of water from either surface or subsurface sources to
or for the public.
(5)
The collection, treatment or disposal of sewage for
the public.
(6)
The conveyance or transmission of messages or communications
by telephone or telegraph for the public.
(7)
The diverting, pumping or impounding of water for
the development or furnishing of hydroelectric power to or for the
public.
(8)
The transportation of oxygen or nitrogen, or both,
by pipeline or conduit for the public.
(9)
Any ancillary service reasonably necessary or appropriate for the accomplishment of services specified in Subsection B(1) through B(8), including the placement, maintenance and removal of aerial, surface and subsurface public utility facilities thereon or therein. Information service is not an ancillary service.
C.
Not a pole attachment agreement. This chapter does
not authorize the grantee to attach to any pole or other structure
in a public way devices for the intentional transmission or radiation
of radio frequency emissions or energy through the ether by any means
now known or hereafter developed.
D.
Cable service. This chapter shall not apply to occupation
or use of the public ways to provide cable service. This chapter does
not authorize a person to provide cable service.
A.
Safety requirements. All such work in the public ways
shall be performed in accordance with applicable safety codes and
technical requirements.
B.
Maps. Prior to beginning any construction of facilities,
grantee shall provide the Borough with a construction schedule for
work in the Pubic Ways which schedule shall be updated as changed.
Upon completion of initial construction and upon completion of construction
of any modification to its facilities, grantee shall provide the Borough
with a map showing the location of its installed facilities in the
public ways. Such maps shall be provided in both paper form, as well
as in an electronic format in PDF, arc-info, CAD or such other format
or formats as are required for as-built drawings by the Borough for
placement on the Borough's GIS system. Annually thereafter, grantee
shall provide a map to the Borough showing the location of grantee's
facilities in the public ways on a scale of 150 feet per inch or whatever
standard scale the Borough adopts for general use.
C.
Reservation of borough public ways. Nothing in this
chapter shall be construed to prevent the Borough 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 Borough 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 Borough or other agency of government
or municipal authority, the Borough 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 Borough or other
agency of government or municipal authority due to grantee's delay.
A.
In consideration of occupying or using the public ways under this chapter, grantee shall elect to pay to Borough an annual rental equal to either 5% of gross revenue, or $1 for each linear foot of its Infrastructure located in the public ways. Such election shall be made by grantee in writing at the time of registration as required by § 238-3, Registration, of this chapter. In the absence of grantee making such election, rental shall be computed on the basis of $1 for each linear foot of its infrastructure located in the public ways. Thereafter, grantee may change its election from year to year by sending written notice to Borough of such election no later than October 1 of each such year for an election to be effective beginning January 1 of the next year.
B.
The rent shall be calculated on a calendar quarterly
basis and shall be payable to the Borough no later than 45 days after
the expiration of the calendar quarter for which payment is due. Grantee
shall file a complete and accurate verified statement, at the end
of each calendar year quarter certified as true and correct by a representative
of grantee, authorized to make such certification, explaining how
the payment was calculated. Said statement shall accompany each payment.
Upon request by the Borough, grantee shall provide such additional
information as may be reasonably required.
C.
In the event grantee shall have elected to compute
rental on the basis of 5% of gross revenue, grantee shall keep accurate
books of account, in an electronic format, which shall clearly support
the calculation of rents and describe in sufficient detail the amounts
attributable to each specific component of gross revenue. Such books
of account shall be made available to the Borough and its authorized
representatives for examination at a location in Franklin County at
any time during regular business hours on 10 days' prior written notice
for the purpose of verifying or identifying rents owed to the Borough.
Such requests by the Borough shall not be made more than once in any
calendar year. Where in the opinion of the Borough they are reasonably
necessary to verify or supplement grantee's records, the grantee shall
exercise its best efforts to obtain financial records of affiliates
for the Borough. Borough shall have the right to examine and to recompute
any amounts determined to be payable under this or any other section
provided, however, that such examination shall take place within 36
months following the close of each of grantee's fiscal years. Any
additional amount due to Borough as a result of the examination shall
be paid within 60 days following written notice to grantee by the
Borough, which notice shall include a copy of the examination report.
In the event that said examination determines that funds are owed
to the Borough in an amount in excess of $2,500, the cost of said
examination, at the election of the Borough, shall be borne by the
grantee.
D.
In the event that any rent or other payment is not
made or the requisite documentation and certification is not provided
on or before the applicable dates heretofore specified, Borough shall
so notify grantee in writing; and, if all sums due from grantee are
not received by Borough within five days of the date of such written
notification, interest shall be compounded daily and set at the one-year
United States Treasury Bill rate existent on the date payment was
due, plus three percentage points. Any amount recomputed to reflect
correct payment due shall bear interest as described from the date
such payment was originally due.
A.
Grantee shall save the Borough, 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, including for the negligence of the Borough,
its employees, officials, agents and elected officials arising out
of the construction, leasing, operation or maintenance of the grantee's
equipment, facilities, and services specified by this chapter, whether
or not any act or omission complained of is authorized, allowed and/or
prohibited by the Ordinance and the rights granted thereunder.
B.
Insurance.
(1)
Grantee shall obtain and maintain in full force and
effect throughout the term of this chapter insurance with an insurance
company licensed to do business and doing business in the Commonwealth
of Pennsylvania and acceptable to the Borough. All companies will
be required to be rated A-VII or better by A.M. Best or A better by
Standard and Poors. Grantee shall provide Borough with proof of such
insurance so required.
(2)
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
| ||
|---|---|---|---|
|
Workers' compensation and statutory employers
liability
|
$100,000/$500,000/$100,000
| ||
|
Commercial general (public) liability, to include
coverage for the following where the exposure exists:
| |||
|
Premises operations; independent contractors;
products/completed operations; personal injury; 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, non-owned vehicles and
hired vehicles
|
Combined single limit of bodily injury and property
damage $1,000,000 per occurrence or its equivalent
| ||
(3)
The Borough shall receive without expense copies of
certificates of insurance evidencing coverage stated above.
(4)
Grantee agrees that with respect to the above-required
insurance, all insurance certificates will contain the following required
provisions.
(a)
Name the Borough as an additional insured party
as to all applicable coverage (except worker's compensation);
(b)
Provide for 60 days' written notice to the Borough
for cancellation, nonrenewal, or material change;
(c)
Provide that all provisions of this chapter
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.
(d)
The insurance certificate issued on behalf of
the Borough shall include the following statement:
|
"It is a condition of the above described policies
that they will be deemed to be automatically extended without amendment,
for an additional period of one year from the present or any future
expiration date thereof, unless at least 60 days prior to the then
current expiration date we notify the Borough in writing at Borough
Manager's Office, Borough of Chambersburg, 100 South Second Street,
Chambersburg, PA 17201 or such other address as the Borough may specify,
via registered mail or other form of delivery for which a receipt
is acknowledged, of our intention to cancel any of the above described
policies."
|
(5)
Companies issuing the insurance policies shall have
no recourse against the Borough 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 Borough in
connection with any damage covered by these policies.
C.
Grantee shall arrange for, and shall maintain a construction, performance, and payment bond for the protection of Borough with a corporate surety and trust company reasonably acceptable to Borough. grantee shall deliver to Borough within 30 days of registration as required by § 238-3, Registration, of this chapter such construction, performance, and payment bond or other suitable security in form reasonably acceptable to Borough in an aggregate amount no less than $100,000 conditioned for the performance of the obligations of the grantee as set forth in this chapter. The aforesaid bond or other security shall not be released until the proper performance of all of the obligations of the grantee contained herein, and only after approval and verification by Borough to that effect and compliance with all laws, rules, and regulations of Borough or any commission, agency, or board having lawful jurisdiction thereof. The faithful performance by and the liability of the grantee shall not be limited by the acceptance of the bond required by this section.
(1)
No action, proceeding or exercise of a right with
respect to such bond shall affect the Borough's rights to demand full
and faithful performance under this chapter or limit grantee's liability
for damages.
(2)
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 Borough of Chambersburg, 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.
Neither the provisions of this chapter nor any insurance
accepted by the Borough pursuant hereto, nor any damages recovered
by the Borough 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.
General. In addition to all other rights, remedies
and powers reserved and/or retained by the Borough under this chapter
or otherwise, the Borough reserves the right to bring a civil action
to collect any sums due to Borough by grantee and/or forfeit or revoke
all privileges of grantee under this chapter in the event of violation
of this chapter.
B.
Violations and penalties. Any person which commits
or suffers the violation of this chapter, shall, upon being found
liable in a civil enforcement proceeding commenced by the Borough,
pay a fine of $500 plus all court costs, including reasonable attorneys'
fees incurred by the Borough. 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 chapter which is found to have been violated.
In addition, the Borough also may enforce this chapter by an action
brought in equity.
A.
Compliance with applicable laws and ordinances. The
grantee shall at all times be subject to the exercise of the police
power of the Borough. The grantee shall comply with all lawful ordinances,
codes, laws, rules and regulations of the Borough, Commonwealth of
Pennsylvania, and the United States of America which are now in effect
or hereafter enacted.
B.
Conflict. Whenever the requirements of this chapter
are in conflict with other requirements of the ordinances of the Borough,
the most restrictive, or those imposing the highest standards shall
govern. Privileges granted by this chapter do not constitute a waiver
or impairment of the rights of the Borough at law or equity now or
henceforth existing to proceed versus grantee for enforcement of the
Ordinance or violation of this chapter or ordinances of the Borough.
C.
Effective date. This chapter shall become effective
upon approval by the Mayor and Town Council of the Borough of Chambersburg.
D.
Severability. The provisions of this chapter are severable.
If any section, clause, sentence, part or provision thereof shall
be held illegal, invalid or unconstitutional by any court of competent
jurisdiction, such decision of the court shall not affect or impair
any of the remaining sections, clauses, sentences, parts of provisions
of this chapter. It is hereby declared to be the intent of the Town
Council of the Borough of Chambersburg that this chapter would have
not been adopted if such illegal, invalid or unconstitutional section,
clause, sentence or part of a provision had been included herein.
