[HISTORY: Adopted by the Board of Supervisors of the Township of
Lower Makefield 11-15-2006 by Ord. No. 366.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance was originally adopted as Ch. 204,
Art. I, but was redesignated to maintain the organizational style of the Code.
This chapter shall be known as the "Lower Makefield Township Rights-Of-Way
Management Ordinance."
A.
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:
B.
AFFILIATE
(1)
(2)
(3)
CABLE SERVICE
COMMUNICATIONS ACT
EQUIPMENT
EXEMPT
FACILITY
GRANTEE
GROSS REVENUE
(1)
(a)
(b)
(c)
(2)
(a)
(b)
(c)
(3)
NONEXEMPT
PERSON
PUBLIC WAY
SERVICE AREA
TOWNSHIP
As used in this chapter, the following terms shall have
the meanings indicated:
A person:
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;
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
Which controls the grantee and/or, is controlled by, or is under common
control with such person or entity.
Shall have 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 § 163-4B 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 the grantee or any affiliate of the 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 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.
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 § 163-4B of this chapter.
Any natural person, sole proprietorship, partnership, association,
limited liability company, corporation or other form of organization 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 Township in the service area. "Public way"
shall also mean any easement now or hereafter held by the Township 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 Township, and shall include
any additions thereto by annexation or other legal means.
The Township of Lower Makefield, County of Bucks, Commonwealth of
Pennsylvania, or the lawful successor, transferee, or assignee thereof.
Each person, other than on a transitory basis, who occupies or uses
or seeks to occupy or use a public way 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 Township. Registration is accomplished by filing with the Township
a completed provider certification in the form shown at Appendix A to this
chapter.[1]
[1]
Editor's Note: Appendix A is included at the end of this chapter.
A.
Grant. 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 public way unless in compliance with this Rights-of-Way
Chapter. Continuous compliance with this Rights-of-Way Chapter 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 public
ways within the service area and to occupy or use the public ways for the
purpose of providing nonexempt service to residences or businesses within
the service area.
B.
Exemptions. This Rights-of-Way 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 diverting, pumping or impounding of water for the
development or furnishing of hydroelectric power to or for the public.
(7)
The transportation of oxygen or nitrogen, or both, by
pipeline or conduit for the public.
(9)
Cable service.
C.
Not a cable system. This chapter 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.
D.
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.
A.
Conditions of street occupancy. 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 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 its facilities
and equipment 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. 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 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 public way shall be properly safeguarded for the prevention
of accidents.
C.
Trees and shrubbery. 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 public ways 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.
D.
Safety requirements. All such work in the public ways
shall be performed in accordance with applicable safety code and technical
requirements.
E.
Maps. Prior to beginning any construction of facilities,
the grantee shall provide the Township 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, the grantee shall provide the Township 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 for placement
on the Township's GIS system. Annually thereafter, the grantee shall
provide a map to the Township showing the location of the grantee's facilities
in the public ways on a scale of 150 feet per inch or whatever standard scale
the Township adopts for general use.
F.
Excavations. The grantee may make excavations in public
ways 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 owning
or maintaining facilities which may be affected by the proposed excavation.
G.
Reservation of Township public ways. Nothing in this
chapter 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.
In consideration of occupying or using the public ways
under this chapter, the grantee shall pay to Township a rental equal to 5%
of gross revenue.
B.
The rental shall be assessed on a calendar quarterly
basis and shall be payable to the Township no later than 45 days after the
expiration of the calendar quarter for which payment is due. The grantee shall
file with the Township a complete and accurate statement, under notarial seal,
at the end of each calendar year quarter certified as true and correct by
a representative of the grantee, authorized to make such certification, explaining
how the payment was calculated. In connection with the rental payment due
on February 14, the grantee shall also submit to the Township, on that date
or no later than six months thereafter, a detailed statement by an officer
of the grantee, certified by the grantee's independent certified public
accountant, verifying the accuracy of the gross revenue and total payments
for the previous calendar year, with a detailed breakdown and explanation
of the calculation by each month.
C.
The grantee shall keep accurate books of account which
shall clearly support the calculation of rentals and describe in sufficient
detail the amounts attributable to each specific component of gross revenue.
Such books of account and all supplemental information and source documents
in support thereof, including, but not limited to, third party remittances
and contract documents, shall be made available to the Township and its authorized
representatives for examination at a location in Bucks County, Pennsylvania,
at any time during regular business hours on 10 days' prior written notice
and from time to time for the purpose of verifying or identifying rentals
owed to the Township. The grantee shall exercise its best efforts to obtain
financial records of affiliates for the Township for the purpose of verifying
the accuracy of the rental payments. The Township shall have the right to
examine and to recompute any amounts determined to be payable under this chapter;
provided, however, that such examination shall take place within 48 months
following the close of each year. Any additional amount due to the Township
as a result of the examination and recomputation shall be paid within 30 days
following written notice to the grantee by the Township, which notice shall
include a copy of the examination report. In the event that said examination
determines that funds are owed to the Township in an amount in excess of 2%,
the cost of said examination shall be borne by the grantee and reimbursed
to the Township within 30 days following written notice to the grantee.
D.
In the event that any rental or other payment is not
made or the requisite documentation and certification 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 be interest as described from the date
such payment was originally due.
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 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)
The 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 Township. All companies will be required to be rated
A-VII or better by A.M. Best or A 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:
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 limit for bodily injury and property damages of $2,000,000
per occurrence or its equivalent.
| ||
Independent contractors
| |||
Products/completed operations
| |||
Personal injury
| |||
Contractual liability
| |||
Explosion, collapse and underground property damage
| |||
Comprehensive vehicle insurance coverage for loading and unloading hazards,
for:
| |||
Owned/leased vehicles
|
Combined single limit for bodily injury and property damages $1,000,000
per occurrence or its equivalent
| ||
Nonowned vehicles
| |||
Hired vehicles
|
(3)
The Township shall receive without expense copies of
certificates of insurance evidencing the 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);
(b)
Provide for 60 days' written notice to the Township
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.
(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.
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 chapter.
(1)
No action, proceeding or exercise of a right with respect
to such bond shall affect the Township's rights to demand full and faithful
performance under this chapter 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 cancelled by the
surety nor any intention not to renew be exercised by the surety until 60
days after receipt by the Township of Lower Makefield, 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: "Should any policies of insurance be
cancelled or coverages be reduced before the expiration date of said policies
of insurance, the issuer shall deliver 60 days' advance written notice
to the Township."
F.
Neither the provision of this chapter nor any insurance
accepted by the Township pursuant hereto, nor any damages recovered by the
Township thereunder, shall be construed to excuse faithful performance by
the grantee and/or limit the liability of the grantee under the Ordinance
issued hereunder and/or for damages, either to the full amount of the bond
or otherwise.
A.
General. In addition to all other rights, remedies and
powers reserved and/or retained by the Township under this Rights-of-Way Chapter
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 chapter in the event of willful or repeated violation
of this chapter.
B.
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 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 chapter which is found to have been violated.
In addition, the Township 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 Township.
The grantee shall comply with all lawful ordinances, codes, laws, rules and
regulations of the Township, County of Bucks, 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 Township of Lower
Makefield, 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 Township at law or equity now or henceforth
existing to proceed versus the grantee for enforcement of the Ordinance or
violation of this chapter or ordinances of the Township.
C.
Effective date. This chapter shall become effective five
days after the date of its enactment.
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 Board of Supervisors 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.