[HISTORY: Adopted by the Board of Supervisors of the Township of East Hempfield as indicated in article histories. Amendments noted where applicable.]
Article I Management of Rights-of-Way; Rental
[Adopted 5-7-2008 by Ord. No. 2008-02]
This article shall be known as the "East Hempfield Township Rights-of-Way Management Ordinance."
Terms. 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.
- A person:
- (1) 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;
- (2) 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
- (3) Which controls grantee and/or is controlled by or is under common control with such person or entity.
- CABLE OPERATOR
- Shall have the same meaning as used in the Communications Act.
- CABLE SERVICE
- Shall have 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.
- 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 article under § 197-4B of this article.
- 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 article and who is in continuous compliance with this article.
- 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:
- (1) Whether the amounts are paid in cash, in trade, or by means of some other benefit to grantee or its affiliates;
- (2) 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
- (3) How the amounts are initially recorded by grantee or its affiliates. "Gross revenue" shall not be a net of:
- (a) Expense, including but not limited to any operating expense, capital expense, sales expense, or commission;
- (b) Any accrual, including, without limitation, any accrual for commissions; or
- (c) 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.
- 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 § 197-4B of this article.
- (1) 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
- (2) 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 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.
- SERVICE AREA
- The present municipal boundaries of the Township and shall include any additions thereto by annexation or other legal means.
- The Township of East Hempfield, County of Lancaster, 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 article. This article regulates the use of the public ways not the users of the public ways or the services which they provide.
Editor's Note Appendix A is on file in the Township's offices.
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 article. Continuous compliance with this article grants to 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.
Exemptions. This article 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.
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 Township under separate legislation of the Township.
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.
Not a cable television franchise. This article is not an exercise of the Township's franchising authority, nor does it grant a franchise for cable television under the Communications Act. This article recognizes that Section 622 of the Communications Act (47 U.S.C. § 542) limits the payment of franchise fees under a cable television franchise to 5% of a cable operator's gross revenues derived from the operation of a cable system to provide cable service. This article makes clear that a cable operator otherwise having such franchise is not required to pay franchise fees on revenues from non-cable services on account of an obligation set forth in that franchise. This article makes clear that occupation or use of a public way or the placement of any equipment or facility in a public way other than on a transitory basis for the provision of non-cable services requires compliance with this article.
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.
Restoration of public ways. If during the course of grantee's construction, operation, and/or maintenance of its facilities and equipment there occurs a disturbance of any public way by grantee, a grantee shall, at its expense, replace and restore such public way to a condition which existed immediately prior to such disturbance. If grantee excavates the surface of any public way, 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 grantee, to remove and/or repair any work done by 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 grantee in the public way shall be properly safeguarded for the prevention of accidents.
Trees and shrubbery. The grantee shall notify Township and all affected property owners regarding 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.
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 Township 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, 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, grantee shall provide a map to the Township showing the location of 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.
Excavations. Grantee may make excavations in public ways for any facility, subject to obtaining excavation permits from the Township. Prior to doing such work, 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.
Reservation of Township public ways. Nothing in this article 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 interfere 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 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 grantee, including all reasonable costs and expenses incurred by the Township or other agency of government or municipal authority due to grantee's delay.
In consideration of occupying or using the public ways under this article, grantee shall pay to Township a rental equal to 5% of gross revenue.
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. Grantee shall file with the Township a complete and accurate statement, under notary seal, 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. 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 rental payments for the previous calendar year, with a detailed breakdown and explanation of the calculation by each month.
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 Lancaster 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. 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. Township 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 Township as a result of the examination and recomputation shall be paid within 30 days following written notice to 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 Township within 30 days following written notice to the grantee.
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.
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 article, whether or not any act or omission complained of is authorized, allowed and/or prohibited by the article and the rights granted thereunder.
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 Township. All companies will be required to be rated A-VII or better by A.M. Best or A or better by Standard and Poors. Grantee shall provide Township 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 Township 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 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 worker's compensation);
Provide for 60 days' written notice to the Township for cancellation, nonrenewal, or material change;
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.
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 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.
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 grantee's estimated costs to secure grantee's performance of its obligations and faithful adherence to all requirements of this article.
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 article 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 Township of East Hempfield, by registered mail, of written notice of such intent."
All expenses of the above-noted insurance and bond shall be paid by the grantee.
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."
Neither the provisions of this article 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 article 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 Township under this article or otherwise, the Township reserves the right to bring a civil action to collect any sums due to Township by grantee and/or forfeit or revoke all privileges of grantee under this article in the event of willful or repeated violation of this article.
Any person which commits or suffers the violation of this article 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 article which is found to have been violated. In addition, the Township 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 Township. The grantee shall comply with all lawful ordinances, codes, laws, rules and regulations of the Township, County of Lancaster, Commonwealth of Pennsylvania, and the United States of America, which are now in effect or hereafter enacted.
Whenever the requirements of this article are in conflict with other requirements of the ordinances of the Township of East Hempfield, the most restrictive or those imposing the highest standards shall govern. Privileges granted by this article do not constitute a waiver or impairment of the rights of the Township at law or equity now or henceforth existing to proceed versus grantee for enforcement of the article or violation of this article or ordinances of the Township.