[Adopted 10-16-2006 by Ord. No. 915]
[1]
Editor's Note: Former Art. II, Sidewalk and Curb Construction and Repair Standards, adopted 12-16-1985 as Ch. 160, Art. II, of the 1985 Code, as amended, was repealed 10-17-2005 by Ord. No. 895.
This article shall be known as the "Perkasie Borough Rights-of-Way Ordinance."
For the purpose of this article, 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:
AFFILIATE
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. 
Which controls the grantee and/or is controlled by or is under common control with such person or entity.
BOROUGH
The Borough of Perkasie, County of Bucks, 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 article.
EQUIPMENT
Any tangible asset used to install, repair, or maintain a facility in the public way.
EXEMPT
A service which is provided to residences or businesses within the service area, but which is exempt from the provisions of this article under § 160-17B of this article.
FACILITY
Any tangible asset in the public way used or required to provide a nonexempt service to residences or businesses within the service area. The following are not a facility: a railroad, street railway, gas pipe, water pipe, electric conduit, electric piping, telephone pole, telegraph pole, electric light pole, electric power pole, coal tipple or obstruction to the public way.
GRANTEE
A person who enjoys a nonexclusive privilege to occupy or use a public way to provide nonexempt service under this article and who is in continuous compliance with this article.
GROSS REVENUE
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.
NONEXEMPT
A service which is provided to residences or businesses within the service area, but which is not exempt from the provisions of this article under § 160-17B of this article.
PERSON
A. 
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
B. 
Provides or seeks to provide one or more nonexempt services to residences or businesses in the service area.
C. 
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.
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 Borough. Registration is accomplished by filing with the Borough a completed provider certification in the form shown at Appendix A[1] to this article.
[1]
Editor's Note: Appendix A is on file in the Borough offices.
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 Ordinance. Continuous compliance with this Rights-of-Way Ordinance 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 Ordinance 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 (8).
(10) 
Cable service.
C. 
Not a cable system. This article does not authorize a person to provide cable service. A person seeking to provide cable service must obtain permission from the Borough under separate legislation of the Borough.
D. 
Not a pole attachment agreement. This article 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 Borough 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 Borough 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 codes and technical requirements.
E. 
Maps. Prior to beginning any construction of facilities, the grantee shall provide the Borough with a construction schedule for work in the public 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 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 for placement on the Borough's GIS system. 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 150 feet per inch or whatever standard scale the Borough adopts for general use.
F. 
Excavations. The grantee may make excavations in public ways for any facility 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 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.
G. 
Reservation of Borough public ways. Nothing in this article 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 the 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 the grantee, including all reasonable costs and expenses incurred by the Borough 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 article, the grantee shall pay to the Borough 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 Borough no later than 45 days after the expiration of the calendar quarter for which payment is due. The grantee shall file with the Borough 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 Borough, 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 rental 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 Borough 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 Borough. The grantee shall exercise its best efforts to obtain financial records of affiliates for the Borough for the purpose of verifying the accuracy of the rental payments. Borough shall have the right to examine and to recompute any amounts determined to be payable under this article; provided, however, that such examination shall take place within 48 months following the close of each year. Any additional amount due to the Borough as a result of the examination and recomputation shall be paid within 30 days following written notice to the 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%, the cost of said examination shall be borne by the grantee and reimbursed to the Borough 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 bear interest as described from the date such payment was originally due.
A. 
The 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 arising out of the construction, leasing, operation or maintenance of the grantee's equipment, facilities, and services specified by this article, whether or not any act or omission complained of is authorized, allowed and/or prohibited by this chapter and the rights granted thereunder.
B. 
Insurance.
(1) 
The grantee shall obtain and maintain in full force and effect throughout the term of this article 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 or better by Standard and Poors. The grantee shall provide the Borough 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:
Combined single limit for bodily injury and property damages $2,000,000 per occurrence or its equivalent
Premises operations
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:
Combined single limit of bodily injury and property damage $1,000,000 per occurrence or its equivalent
Owned/leased vehicles
Nonowned vehicles
Hired vehicles
(3) 
The Borough shall receive, without expense, copies of certificates of insurance evidencing 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 Borough and its officers, employees, board members and elected and appointed officials as additional insured parties (as the interests of each insured may appear) as to all applicable coverage (except worker's compensation);
(b) 
Provide for 60 days' written notice to the Borough for cancellation, nonrenewal, or material change;
(c) 
Provide that all provisions of this article 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 Borough 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 Borough 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 Borough, 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 article.
(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 article 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 Perkasie, 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 canceled or coverages be reduced before the expiration date of said policies of insurance, the issuer shall deliver 60 days' advance written notice to the Borough.
F. 
Neither the provisions of this article 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 this chapter 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 Rights-of-Way Ordinance or otherwise, the Borough reserves the right to bring a civil action to collect any sums due to the Borough by the grantee and/or forfeit or revoke all privileges of the grantee under this article in the event of willful or repeated violation of this article.
B. 
Penalties. Any person who commits or suffers the violation of this article 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 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 article which is found to have been violated. In addition, the Borough also may enforce this article by an action brought in equity.
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, County of Bucks, Commonwealth of Pennsylvania, and the United States of America which are now in effect or hereafter enacted.