[HISTORY: Adopted by the Board of Supervisors
of the Township of East Hempfield as indicated in article histories.
Amendments noted where applicable.]
[Adopted 5-7-2008 by Ord. No. 2008-02]
This article shall be known as the "East Hempfield
Township Rights-of-Way Management Ordinance."
A.
AFFILIATE
(1)
(2)
(3)
CABLE OPERATOR
CABLE SERVICE
COMMUNICATIONS ACT
EQUIPMENT
EXEMPT
FACILITY
GRANTEE
GROSS REVENUE
(1)
(2)
(3)
(a)
(b)
(c)
NONEXEMPT
PERSON
(1)
(2)
PUBLIC WAY
SERVICE AREA
TOWNSHIP
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:
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.
Shall have the same meaning as used in the Communications
Act.
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 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.
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.
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.
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 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.[1] This article regulates the use of the public ways not
the users of the public ways or the services which they provide.
[1]
Editor's Note Appendix A is on file in the
Township's 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
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.
B.
Exemptions. This article 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.
(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 Township under separate legislation
of the Township.
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.
E.
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.
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
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.
C.
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.
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,
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.
F.
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.
G.
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.
A.
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.
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. 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.
C.
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.
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.
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.
B.
Insurance.
(1)
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.
(2)
Grantee shall obtain and maintain in full force and
effect, at grantee's sole expense, insurance coverage in the following
types and minimum amounts:
Type
|
Amount
| |
---|---|---|
Worker's 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
| ||
Non-owned vehicles
| ||
Hired vehicles
|
(3)
The Township shall receive without expense copies
of certificates of insurance evidencing coverage stated above.
(4)
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 worker's compensation);
(b)
Provide for 60 days' written notice to the Township
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 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.
C.
Surety bond.
(1)
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.
(2)
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.
(3)
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."
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 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.
A.
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.