[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:
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 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.
- CABLE SERVICE
- The same meaning as used in the Communications Act.
- 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.
- GROSS REVENUE
- 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.
- INFORMATION SERVICE
- 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.
- PUBLIC WAY
- 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.
- SERVICE AREA
- 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.
- TELECOMMUNICATIONS SERVICE
- 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. 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.
Editor's Note: Appendix A is on file in the Borough offices.
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.
Exemptions. This chapter shall not apply to occupation or use of the public ways to provide:
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.
The transportation of artificial or natural gas, electricity, petroleum or petroleum products or water or any combination of such substances for the public.
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.
The diverting, developing, pumping, impounding, distributing or furnishing of water from either surface or subsurface sources to or for the public.
The collection, treatment or disposal of sewage for the public.
The conveyance or transmission of messages or communications by telephone or telegraph for the public.
The diverting, pumping or impounding of water for the development or furnishing of hydroelectric power to or for the public.
The transportation of oxygen or nitrogen, or both, by pipeline or conduit for the public.
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.
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.
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.
Safety requirements. All such work in the public ways shall be performed in accordance with applicable safety codes and technical requirements.
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.
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.
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.
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.
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.
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.
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.
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.
Grantee shall obtain and maintain in full force and effect, at grantee's sole expense, insurance coverage in the following types and minimum amounts:
The Borough shall receive without expense copies of certificates of insurance evidencing coverage stated above.
Grantee agrees that with respect to the above-required insurance, all insurance certificates will contain the following required provisions.
Name the Borough as an additional insured party as to all applicable coverage (except worker's compensation);
Provide for 60 days' written notice to the Borough for cancellation, nonrenewal, or material change;
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.
The insurance certificate issued on behalf of the Borough shall include the following statement:
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.
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.
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.
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."
All expenses of the above-noted insurance and bond shall be paid by the grantee.
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.
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.
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.
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.
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.
Effective date. This chapter shall become effective upon approval by the Mayor and Town Council of the Borough of Chambersburg.
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.