[HISTORY: Adopted by the Mayor and Council
of the Borough of Chambersburg 6-28-2000 by Ord. No. 2000-8.
Amendments noted where applicable.]
GENERAL REFERENCES
Franchises — See Ch. A302.
A.
Word usage. Definitions of words defined in the Communications
Act shall have the meaning ascribed to them therein unless otherwise
set forth in this chapter. 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.
B.
AFFILIATE
(1)
(2)
(3)
ATTACHMENT
COMMUNICATIONS ACT
CONDUIT FACILITY
DUCT
FACILITY
FCC
FRANCHISE
FRANCHISE AUTHORITY OR FRANCHISING AUTHORITY
GRANTEE
LICENSEE
PERSON
PUBLIC WAY
SERVICE AREA
SURPLUS DUCTS OR CONDUITS
TELECOMMUNICATIONS SERVICES
(1)
(2)
TELECOMMUNICATIONS SYSTEM
YEAR, ANNUAL or ANNUALLY
For the purpose of this chapter, the following terms,
phrases, words and abbreviations shall have the meaning ascribed to
them below:
A person or entity:
With a direct or indirect ownership interest
in the subject entity of 5% or more or who 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;
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 or which
directly or indirectly owns or controls 5% or more of the outstanding
stock, whether voting or nonvoting; or
Who or which controls the grantee and/or is
controlled by, or is under common control with, such person or entity.
Any wire, optical fiber or other cable, and any related device,
apparatus or auxiliary equipment, for the purpose of voice, video,
or data transmission.
The Communications Act of 1934, as now or hereafter amended.
Any structure, or section thereof, containing one or more
ducts, conduits, manholes, handholes or other such facilities in the
grantee's telecommunications system.
A single enclosed raceway for conductors, optical fiber,
wire or other cable.
Any tangible component of the telecommunications system.
The Federal Communications Commission or successor governmental
entity thereto.
The nonexclusive right and privilege granted to the grantee
under this chapter.
The Borough of Chambersburg, Franklin County, Commonwealth
of Pennsylvania, or the lawful successor, transferee, or assignee
thereof.
A person in continuous compliance with this chapter.
Any person franchised, licensed, permitted or otherwise lawfully
occupying space in the public way.
Any individual, sole proprietorship, partnership, association,
limited liability company, corporation or other form of organization
authorized to do business in the Commonwealth of Pennsylvania, and
includes any natural person.
The surface of, and the space above and below, any public
street, highway, turnpike, bridge, land path, alley, court, boulevard,
sidewalk, parkway, way, lane, public way, drive, circle, or other
public right-of-way, including public utility easements, dedicated
utility strips, or rights-of-way dedicated for compatible uses and
any temporary or permanent fixtures or improvements located thereon
now or hereafter held by the franchise authority in the service area
which shall entitle the franchise authority and the grantee to the
use thereof for the purpose of constructing, leasing, operating and
maintaining the telecommunications system. "Public way" shall also
mean any easement now or hereafter held by the franchise authority
within the service area for the purpose of public travel and/or for
utility and/or public service use dedicated for compatible uses, and
shall include other easements and/or rights-of-way as shall within
their proper use and meaning entitle the franchise authority and the
grantee to use thereof for the purposes of constructing, leasing,
operating, or maintaining the grantee's telecommunications system
over poles, wires, cables, conductors, ducts, conduits, pedestals,
vaults, manholes, amplifiers, appliances, attachments, and other property
as may be ordinarily necessary and pertinent to the telecommunications
system.
The present municipal boundaries of the franchising authority,
and shall include any additions thereto by annexation or other legal
means.
Conduit facilities other than those occupied by the grantee
or any prior licensee and unoccupied duct(s) held by the grantee as
an emergency or use spare.
Any transmission of communications or information in electrical, electronic, or optical form or by any means, whether now known or hereafter to become known, including but not limited to voice, video, or data, whether or not the content of the transmission or the medium of the transmission is owned by the grantee itself, unless the licensee is able to demonstrate to the franchise authority by a preponderance of the evidence that such transmission is excluded from the definition of "telecommunications services" under Subsection (2).
Telecommunications services do not include the
following:
All wires, cables, ducts, conduits, vaults, poles and other
necessary facilities owned and/or used by the grantee for the purpose
of providing telecommunications services and located in, under and
above a public way.
The period consisting of a full calendar year, beginning
January 1 and ending December 31, unless otherwise provided in this
franchise.
A.
Grant. Subject to state or federal law, it shall be
unlawful for any person to construct, lease, maintain or operate a
telecommunications system in the public ways unless first having entered
into a written agreement with the borough, and then only under and
pursuant to the terms of any such agreement, or alternatively in compliance
with this chapter. Continuous compliance with this chapter grants
to the grantee a nonexclusive right and privilege which authorizes
the grantee to construct, lease, maintain and operate a telecommunications
system in, along, among, upon, across, above, over, under, or in any
manner connected with public ways within the service area and for
that purpose to erect, install, construct, repair, replace, reconstruct,
maintain, and/or retain in, on, over, under, upon, across, and/or
along any public way and all extensions thereof and additions thereto
such poles, wires, cables, fiber-optic cable, conductors, ducts, conduits,
vaults, manholes, pedestals, amplifiers, appliances, attachments,
and/or other related property or equipment as may be necessary or
appurtenant to the telecommunications system.
[Amended 10-25-2000 by Ord. No. 2000-12]
B.
Nonexclusive grant. The right to use and occupy said
public ways, as defined above, for the purpose herein set forth shall
not be exclusive in the grantee. This chapter shall not apply to use
of the public ways by a governmental entity or quasi-governmental
entity.
C.
Not a cable system. This franchise does not authorize
the grantee to operate a cable television system, nor shall it apply
to "cable service," as defined by Section 602 of the Communications
Act (47 U.S.C.A. § 522).
D.
Not a pole attachment agreement. This franchise does
not authorize the grantee to attach to any poles or to occupy any
conduit facility owned by the borough or jointly owned by the borough
or the poles or conduit facility rented or obtained by other arrangements
by the borough from another owner, any wire, optical fiber or cable,
or related device, apparatus or auxiliary equipment.
A.
Conditions of street occupancy. All transmission and
distribution structures, poles, other lines, 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 public
ways and with the rights and reasonable convenience of property owners
who own property that adjoins any of said public ways.
B.
Restoration of public ways. If during the course of
the grantee's construction, operation, and/or maintenance of the telecommunications
system there occurs a disturbance of any public way by the grantee,
the grantee shall, at its expense, replace and restore such public
way to a condition which existed immediately prior to such disturbance
and in a manner approved by the franchising authority. If the grantee
excavates the surface of any public way, the grantee shall be responsible
for restoration of the public way and its surface within the area
affected by the excavation. The borough may, after providing notice
to the grantee, refill and/or repave any opening made by the grantee
in the public way, and the expense thereof shall be paid by the grantee.
The borough reserves the right, after providing notice to the grantee,
to remove and/or repair any work done by the grantee which, in the
sole determination of the Borough Engineer, is inadequate. The cost
thereof, including the cost of inspection and supervision, shall be
paid by the grantee. All excavations made by the grantee in the public
way shall be properly safeguarded for the prevention of accidents.
All of the grantee's work shall be done in strict compliance with
all applicable rules, regulations and ordinances of the borough.
C.
Relocation at request of franchising authority.
(1)
Upon its receipt of reasonable advance notice, except
under exigent circumstances, the grantee shall, at its own expense,
locate, protect, support, temporarily disconnect, relocate in the
public way, and/or remove from the public way or other property owned
by the franchising authority any property of the grantee when lawfully
required by the franchising authority by reason of traffic conditions,
public safety, street abandonment, freeway and street construction,
change or establishment of street grade, installation of sewers, drains,
gas or water pipes, electrical conduits or any other type of structures
or improvements by the franchising authority; provided, however, that
the grantee in all such cases shall share proportionately with utility
companies in any federal, state, or county funds awarded to the franchising
authority specifically for any of the purposes enumerated above. Nothing
in this section shall be construed to require the franchising authority
to make application for or seek a grant for any funds.
(2)
Upon the failure of the grantee to commence, pursue,
or complete any work required by law (or by the provisions of the
grantee's franchise, or any other applicable federal, state or local
law, ordinance, rule or regulation) to be done in any public way or
other public place within the time prescribed, and to the satisfaction
of the franchising authority, the franchising authority, at its option,
may cause such work to be done, and the grantee shall pay to the franchising
authority the cost thereof in the itemized amounts reported by the
franchising authority to the grantee within 30 days after receipt
of such itemized report. But the grantee, upon prior approval of the
franchising authority, may elect to abandon any or all of the telecommunications
system rather than relocate it.
D.
Relocation at request of third party or grantee. The
grantee shall, on the request of any person holding a requisite lawful
permit issued by the franchising authority, temporarily raise or lower
its wires to permit the moving of any equipment, building, material
or otherwise, provided that the expense of such temporary raising
or lowering of wires is paid by said person, including, if required
by the grantee, making such payment in advance and that the grantee
is given not less than 10 days' advance written notice to arrange
for such temporary wire changes. The grantee may request the franchising
authority to temporarily raise or lower its wires or to make other
changes in its plant and equipment to accommodate the grantee's construction,
which request shall be promptly considered by the franchising authority.
E.
Trees and shrubbery. The grantee shall notify the
franchising authority and all affected property owners regarding the
grantee's need to trim trees or other natural growth upon and overhanging
public ways so as to prevent the branches of such trees from coming
in contact with the telecommunications system of the grantee; at the
option of the franchising authority, such trimming may be done by
the franchising authority at the reasonable expense of the grantee,
or by the grantee under the franchising authority's supervision and
direction at the expense of the grantee. Trimming shall be limited
to the area required for clear telecommunications system passage and
shall not include major structural branches which materially alter
the appearance and natural growth habits of the tree. All trimming
shall meet the requirements of the Chambersburg Shade Tree Commission.
The grantee shall give the franchising authority and all affected
property owners five business days' prior notice of the grantee's
intent to trim trees or other natural growth pursuant to this section.
F.
Use of grantee's equipment by franchising authority.
Except as already set forth in this chapter and subject to any applicable
state or federal regulations or tariffs, the franchising authority
shall have the right to make additional use, for any public purpose,
of any poles or conduits controlled or maintained exclusively by or
for the grantee in any public way, provided that:
(1)
Such use by the franchising authority does not interfere
with use by the grantee;
(2)
The franchising authority holds the grantee harmless
from and against any and all claims, demands, costs, and/or liabilities
of every kind and nature whatsoever arising out of such use of said
poles or conduits, including but not limited to reasonable attorney
fees and costs; provided, however, that the franchising authority
shall not hold harmless from claims and damages arising out of the
willful or negligent acts caused by the grantee; and
(3)
At the grantee's sole discretion, the franchising
authority may be required either to pay a reasonable rental fee or
otherwise reasonably compensate the grantee for the use of such poles,
conduits or equipment.
G.
Safety requirements. Construction, installation, and
maintenance of the telecommunications system shall be performed in
an orderly and workmanlike manner. All cable, wires, conductors and
other components, elements and parts of the telecommunications system
shall be installed, where possible, parallel with and in the same
manner as electric and telephone lines.
(1)
All such work shall be performed in accordance with
applicable safety code or technical requirements, including but not
limited to the National Electrical Safety Code (National Bureau of
Standards); National Electrical Code (National Bureau of Fire Underwriters);
Bell System Code of Pole Line Construction; and applicable FCC and/or
other federal and state regulations. Multiple cable wires, lines,
fiber-optic cable, wave guides and/or other similar facility configurations
shall be arranged in parallel and bundled with due respect for engineering
considerations.
(2)
The telecommunications system shall not endanger and/or
interfere with the safety of persons or property in the service area.
In particular, the grantee shall comply with all federal laws and/or
regulations which govern plant signal leakage and/or interference
with communications media. Any antenna structure used in the telecommunications
system shall comply with all construction, marking, and lighting of
antenna structure requirements of the United States Department of
Transportation (Federal Aviation Administration), the FCC and the
borough's zoning requirements. If, at any time, it is determined by
the franchising authority and/or any other agency or authority of
competent jurisdiction that any part of the telecommunications system,
including, without limitation, any means used to distribute telecommunications
service, is harmful to the health and safety of any person, then the
grantee shall, at its own cost and expense, promptly correct all such
conditions.
H.
Maps. Prior to beginning any construction, the grantee
shall provide the borough with an initial construction schedule and
plans for work in the public ways and the estimated total cost of
such work. When the grantee's construction in the public ways is completed,
the grantee shall provide the borough with a map showing the location
of its installed telecommunications system in the public ways, as
built. Such as-built maps shall be in an electronic format for placement
on the borough's GIS system and in a form acceptable to the Borough
Engineer. Annually thereafter, the grantee shall provide a map to
the borough showing the location of the grantee's facilities in the
public ways on a scale of 100 feet per inch or whatever standard scale
the borough adopts for general use.
I.
Aerial and underground construction. In those areas
of the service area where all of the transmission or distribution
facilities in the form of cables, wires, lines, fiber-optic cable,
wave guides and/or other similar facilities of the respective public
utilities providing telephone communications and electric services
are underground, the grantee likewise shall construct, operate, and
maintain all of its transmission and distribution facilities underground.
In those areas of the service area where the transmission and/or distribution
facilities of the respective public utilities providing telephone
communications and electric services are both aerial and underground,
the grantee shall have the sole discretion to construct, operate,
and maintain all of its transmission and distribution facilities,
or any part thereof, aerially or underground. If at any time the franchising
authority determines that existing wires, cables or other like facilities
of public utilities anywhere in the service area shall be changed
from an overhead to an underground installation, the grantee shall
also, at no expense to the franchising authority, convert its telecommunications
system to an underground installation. Nothing in this subsection
shall be construed to require the franchising authority to request
any such utility relocation. The grantee's design and engineering
specifications shall take into account the existing landscaping of
the property.
J.
Excavations. The grantee may make excavations in public
ways for any facility needed for the maintenance or extension of the
grantee's telecommunications system subject to obtaining excavation
permits from the borough. Prior to doing such work, the grantee must
apply for, and obtain, appropriate permits from the borough and give
appropriate notices to any other franchisees, licensees and/or permittees
of the borough and/or other units of government owning or maintaining
facilities which may be affected by the proposed excavation.
K.
Installation of service. All installation of telecommunications
systems shall be performed in a workmanlike manner, using materials
of good and durable quality with due regard to the preservation and
protection of existing structures. All work to be performed in, on,
or about the dwelling or structure of a customer or potential customer
shall be performed under the reasonable direction or with the consent
of such customer or potential customer.
L.
Maintenance of facilities. The grantee shall provide
and put in use all telecommunications system facilities necessary
to control and carry the grantee's telecommunications services so
as to prevent injury to the borough's property or property belonging
to any person within the borough. The grantee, solely at its own expense,
shall repair, renew, change and improve said facilities from time
to time as may be necessary to accomplish this purpose. The grantee
shall not construct its telecommunications system in a manner that
requires any customer, except the borough, to install cables, ducts,
conduits, or other facilities in, under or over the borough's public
ways.
M.
Emergency usage. The grantee shall comply with emergency
or disaster notification requirements of the Federal Communications
Commission and all state and all local emergency and/or disaster agencies.
N.
Technical performance and standards. All performance
and technical standards governing construction, reconstruction, installation,
operation, testing, maintenance and dismantling of the telecommunications
system provided herein shall be in accordance with all FCC and other
applicable federal, state and local laws, ordinances and regulations.
O.
Reservation of borough public ways. Nothing in this
franchise shall be construed to prevent the borough 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 telecommunications system 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 telecommunications
system shall be removed or replaced in the manner the borough shall
direct; provided, however, that the borough will cooperate with the
grantee to identify alternate locations within the public ways. 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 Borough Engineer's written
notice to the grantee, the borough may cause and/or effect such removal,
adjustment or relocation, and the expense thereof shall be paid by
the grantee, including all costs and expenses incurred by the borough
due to the grantee's delay.
P.
Common users. The grantee acknowledges that the public
ways have a finite capacity for containing conduits. Therefore, the
grantee agrees that whenever the Borough Engineer determines it is
impracticable to permit construction of an underground conduit system
by any person which may at the time have authority from the borough
to construct or maintain conduits or ducts in the public ways, the
Borough Engineer may require the grantee to afford to such other person
the right to use the grantee's surplus ducts or conduits in common
with the grantee, pursuant to the terms and conditions of an agreement
for use of surplus conduits and ducts being entered into by the grantee
and the licensee.
Q.
Advance notice. The grantee shall give a licensee
and the borough 120 days' advance notice of the grantee's need to
occupy a licensed conduit and shall propose that the licensee take
the first feasible action listed:
(1)
Pay conduit rent to the grantee designed to recover
the cost of retrofitting the conduit with multiplexing, optical fibers,
or other space-saving technology sufficient to meet the licensee's
space needs;
(2)
Pay conduit rent to the grantee based on the cost
of new conduit constructed to meet the licensee's space needs;
(3)
Vacate ducts that are no longer needed; or
(4)
Construct and maintain sufficient new conduits to
meet the licensee's space needs.
R.
Two licensees. When two or more licensees occupy a
section of conduit facility, the last licensee to occupy the conduit
facility shall be the first to vacate or construct a new conduit.
When conduit rent is revised because of retrofitting of space-saving
technology and/or construction of new conduit, all licensees shall
bear the revised cost.
S.
Attachment requirements. All attachments shall meet
local, state, and federal clearance and other safety requirements,
be properly grounded and anchored, and meet the provisions of contracts
executed between the grantee and the licensee. The grantee may, at
its option, correct any attachment deficiencies and charge the licensee
for its costs. Each licensee shall pay the grantee for any fines,
fees, damages, or other reasonable costs the licensee's attachments
cause the grantee to incur.
T.
Removal of equipment. Upon its failure to comply with
this chapter, the franchising authority shall have the right to require
the grantee to remove, at its own expense, all portions of the telecommunications
system from all public ways. The grantee shall, within six months
after having been given written notice, remove from the public ways
all such property of such system other than any which the franchising
authority may permit to be abandoned in place. In the event of such
removal, the grantee shall promptly restore the public way or other
area from which such property has been removed to a condition as good
as that prior to such work.
(1)
Any property of the grantee remaining in place six months after the grantee is given notice pursuant to this Subsection T may at the option of the franchising authority be considered permanently abandoned. The franchising authority may extend such time not to exceed an additional 90 days.
(2)
Any property of the grantee which the franchising
authority permits to be abandoned in place shall be abandoned in such
manner as the franchising authority shall prescribe. Subject to the
provisions of any utility joint use attachment agreement, upon permanent
abandonment of the property of the grantee in place the property shall
become that of the franchising authority, and the grantee shall submit
to the franchising authority an instrument in writing, to be approved
by the franchising authority, transferring to the franchising authority
the ownership of such property.
A.
Unless waived by the franchising authority or otherwise
agreed by the franchising authority and the grantee, the grantee shall
pay to the franchising authority a franchise fee in an amount determined
by the borough. The franchise fee shall be determined so as to fully
reimburse the borough for all costs incidental to and incurred by
the borough as a result of the grantee's construction, leasing, maintenance
and operation of its telecommunications system and the disruption
to the public and disturbance of the public ways or other public property
relating to such construction, leasing, maintenance or operation.
Such costs shall include, but not be limited to, the following:
(1)
The costs incurred by the borough for managing the
public ways, including but not limited to costs associated with implementing
and administering this chapter to the grantee, review and investigation
of documentation and other information concerning the grantee, inspecting
job sites, and creating and updating managing systems; engineering
services; determining the adequacy of public way restoration; budget
analysis; recordkeeping; legal assistance; and systems analysis.
(2)
Any costs incurred in returning the public way to
its original condition, if done or caused to be done by the borough.
(3)
Any costs to the borough for police, fire or EMS services.
(4)
Accelerated deterioration of the public way caused
by the grantee's construction, installation, excavation or other work
related to any part of a telecommunications system or disturbance
of the public way, resulting in the need to reconstruct the public
way earlier than would be required if such construction, installation,
excavation or other work did not occur.
(5)
The decreased value of the public way should the same
not be returnable to its original condition.
B.
The franchise fee shall be assessed on an annual basis
and shall be payable to the franchising authority no later than 30
days after the grantee's receipt of a statement from the borough setting
forth the franchise fee for which payment is due. Upon request by
the franchising authority, the grantee shall provide such additional
information as may be reasonably required.
C.
In the event that any franchise fee or other payment
is not made or the requisite documentation is not provided on or before
the applicable dates heretofore specified, 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.
From time to time, upon request of the franchising
authority, a licensee shall furnish to the franchising authority,
at no cost or expense to the franchising authority, a complete inventory
of the features and services offered and/or being carried over its
telecommunications system and a copy of all technical tests performed
on the telecommunications system by it or on its behalf.
B.
The franchising authority may perform technical tests
of the telecommunications system during reasonable times and in a
manner which does not unreasonably interfere with the normal business
operations of the grantee or the telecommunications system in order
to determine whether or not the grantee is in compliance with the
terms hereof and all applicable laws, ordinances, rules and regulations.
Except in emergency circumstances, such tests may be undertaken only
after giving the grantee reasonable notice thereof, not to be less
than five days, and providing a representative of the grantee an opportunity
to be present during such tests. In the event that such testing demonstrates
that the grantee has failed to comply with this chapter, the reasonable
costs of such tests shall be borne by the grantee and paid to the
franchising authority within 30 days. In the event that such testing
demonstrates that the grantee has complied therewith, the cost of
such testing shall be borne by the franchising authority.
A.
The grantee shall save the borough, its agents and
employees harmless from and against all claims, damages, losses and
expenses, including reasonable attorney fees, sustained by the borough
on account of any suit, judgment, execution, claim or demand whatsoever
arising out of the construction, leasing, operation or maintenance
of the telecommunications system authorized herein, whether or not
any act or omission complained of is authorized, allowed and/or prohibited
by the franchise and the rights granted thereunder.
B.
Insurance.
(1)
The grantee shall obtain and maintain in full force
and effect throughout the term of this franchise insurance with an
insurance company licensed to do business and doing business in the
Commonwealth of Pennsylvania and acceptable to the franchising authority.
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 franchising authority with proof of such insurance so required
at the effective date. The franchising authority reserves the right
to review these insurance requirements during the franchise and, upon
reasonable advance notice to the grantee, to reasonably adjust insurance
coverage and its limits when deemed necessary and prudent by the franchising
authority, based upon changes in statutory law, court decisions, and/or
the claims history of the industry and/or the grantee.
(2)
Subject to the grantee's right to maintain reasonable
deductibles in such amounts as are approved by the franchising authority,
the grantee shall obtain and maintain in full force and effect for
the duration of this franchise, at the 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
|
Combined single
| ||
Independent contractors
|
limit for bodily
| ||
Products/completed operations
|
injury and property
| ||
Personal injury
|
damage $5,000,000
| ||
Contractual liability
|
per occurrence
| ||
Explosion, collapse and underground property
damage
|
or its equivalent
| ||
Comprehensive automobile insurance coverage
for loading and unloading hazards, for:
| |||
Owned/leased automobiles
|
Combined single
| ||
Non-owned automobiles
|
limit for bodily
| ||
Hired automobiles
|
injury and property
| ||
damage $1,000,000
| |||
per occurrence
| |||
or its equivalent
|
(3)
The franchising authority shall receive without expense
copies of certificates of insurance evidencing coverage stated above.
The franchising authority may make reasonable requests for deletion,
revision or modification of particular policy terms, conditions, limitations
or exclusions, except where policy provisions are established by law
or regulation binding upon either the franchising authority or the
grantee or upon the underwriter for any of such policies. Upon request
for deletion, revision or modification by the franchising authority,
the grantee shall exercise its best reasonable efforts to accomplish
the changes and shall pay the cost thereof.
(4)
The grantee agrees that with respect to the above-required
insurance, all insurance certificates will contain the following required
provisions:
(a)
Name the franchising authority and its officers,
employees, board members and elected representatives as additional
insured parties (as the interests of each insured may appear) as to
all applicable coverage (except workers' compensation).
(b)
Provide for 30 days' written notice to the franchising
authority for cancellation, nonrenewal, or material change.
(c)
Provide that all provisions of this franchise
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 franchising authority 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 franchising authority in connection with any damage covered
by these policies.
C.
The grantee shall obtain and maintain, at its sole
cost and expense, and file with the franchising authority a corporate
surety bond with a surety company authorized to do business in the
Commonwealth of Pennsylvania and found acceptable by the franchising
authority, in the amount extant on the day prior to the effective
date or in the amount of $750,000, to secure the grantee's performance
of its obligations and faithful adherence to all requirements of this
franchise.
(1)
The rights reserved to the franchising authority with
respect to the bond are in addition to all other rights of the franchising
authority, whether reserved by this franchise or authorized by law,
and no action, proceeding or exercise of a right with respect to such
bond shall affect the franchising authority's rights to demand full
and faithful performance under this franchise or limit the 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 canceled
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 bond shall
be paid by the grantee.
E.
The insurance policies mentioned herein shall contain
an endorsement stating the following: "Should any policies of insurance
be canceled or coverage be reduced before the expiration date of said
policies of insurance, the issuer shall deliver 30 days' advance written
notice to the borough."
F.
Neither the provisions of this agreement 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
franchise 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 franchising authority under
this chapter or otherwise, the franchising authority reserves the
right to forfeit and revoke the franchise and all rights and privileges
of the grantee in the event of willful or repeated violation of this
chapter.
B.
Penalties. Any person who permits the violation of
this chapter shall, upon being found liable in a civil enforcement
proceeding commenced by the borough, pay a fine of $600 plus all court
costs, including reasonable attorney 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 to civil actions
before a District Justice, the borough may enforce this chapter in
an action in equity brought in the Franklin County Court of Common
Pleas.
The grantee shall, at all times during the term
of this agreement, be subject to the exercise of the police power
by the franchising authority and to such other lawful ordinances,
rules and regulations as the franchising authority shall hereafter
adopt. There is hereby reserved to the franchising authority every
right and power which is required to be herein reserved or provided
by any ordinance, rule or regulation of the franchising authority,
and the grantee shall comply with any action or requirements of the
franchising authority in its exercise of such right or power heretofore
or hereafter enacted or established. The grantee shall comply with
all lawful ordinances, codes, laws, rules and regulations of the franchising
authority, County of Franklin, Commonwealth of Pennsylvania, and the
United States of America which are now in effect or hereafter enacted.