[HISTORY: Adopted by the Borough Council of the Borough of Kutztown 12-9-1997
by Ord. No. 12-1997. Amendments noted where applicable.]
No person shall construct, operate or continue to operate a private
communications system which occupies any right-of-way within the borough without
having been issued a license or licenses by the borough, as provided by this
chapter.
The purpose of this chapter is to:
A.
Regulate the erection, construction, reconstruction,
installation, operation, maintenance, dismantling, testing, repair and use
of a private communications system in, upon, along, across, above, over, under
or in any manner connected with any right-of-way within the corporate limits
of the borough, as now or in the future may exist;
B.
Provide the borough with compensation for occupation
and use of the borough's rights-of-way for a private communications system;
C.
Provide the borough with compensation for acquisition
and maintenance of the borough's rights-of-way when used for commercial
purposes; and
D.
Provide the borough with compensation for the cost of
relation imposed by this chapter on a private communications system.
For the purposes of this chapter and any license issued in accordance
herewith, the following terms, phrases, words and their derivations shall
have the meanings given herein unless otherwise specifically provided in this
chapter, unless the context clearly indicates otherwise or unless such meaning
would be inconsistent with the manifest intent of the Council.
The Borough of Kutztown, Berks County, Pennsylvania.
A nonbroadcast facility consisting of a set of transmission paths with associated signal generation, reception and control equipment, under common ownership and control, which distributes or is designed to distribute to subscribers the signals of one or more television broadcast stations and is franchised by the borough in accordance with Chapter A230 of this Code.
The Council of the borough.
A person who, for a charge or payment of a fee, receives, sends or
uses any signal or service provided, collected or distributed by a private
communications system licensed by the borough.
The Federal Communications Commission or its legally appointed or
constituted successor.
The privilege granted by the borough by which the borough authorizes
a person to erect, construct, reconstruct, operate, dismantle, test, use and
maintain a private communications system that occupies any right-of-way, within
the borough. Any license issued in accordance herewith shall be a nonexclusive
license.
The person, including a corporation, company, association, partnership,
trust or other entity or its permitted legal successor in interest or permitted
assignee, who is issued a license or licenses in accordance with the provisions
of this chapter for the erection, construction, reconstruction, operation,
maintenance, dismantling, testing, repair and use of a private communications
system in the borough.
That geographic area and communications system in which the borough
is located and in which Bell Atlantic (or its successors and assigns) or any
other entity which is authorized by certificate of public convenience or otherwise
by the Pennsylvania Public Utilities Commission of the Commonwealth of Pennsylvania
to provide local exchange access telecommunications services.
The duly appointed Borough Manager of the borough, or such Manager's
designee.
Any communications equipment or facilities, not part of the LATA
or part of a cable communications system franchised by the borough, that in
any manner is connected with any right-of-way within the corporate limits
of the borough, as now or in the future may exist.
Any area or areas established for vehicular, pedestrian or other
public access and use, or the entire width between the boundary lines of every
way publicly maintained when any part thereof is open for public purposes.
Right-of-way includes, but is not limited to, street, highway, avenue, road,
alley, right-of-way, easement, lane, boulevard, concourse, bridge, tunnel,
parks, parkways, sidewalks, waterways, docks, overheads, wharves and piers,
and the surface, subsurface and air space thereof.
All cash, credits or property of any kind or nature whatsoever, or other consideration of any nature whatsoever, in any form, arising from or attributable to the sale or exchange of private communications services by the licensee within the borough or in any way derived from the operation of its private communications system in the borough, including, but not limited to, any interconnection between its system in the borough and any system whatsoever. "Total local gross revenues" shall include only revenues derived from transmissions that bypass the LATA. This sum shall be the basis for computing the fee imposed pursuant to § 166-11B of this chapter. Such sum shall not include any bad debts, deposits, promotional or vendor discounts or credits, nor sales, service, occupation or other excise tax to the extent that such taxes are charged separately from normal service charges and are remitted by the licensee directly to the taxing authority.
All notices required to be given to the borough under any provision
of this chapter shall be deemed served when delivered by hand or certified
United States First Class Mail, in writing, to the Manager or to the Manager's
designee, during normal business hours.
This chapter shall not be construed to create or hold the borough responsible
or liable for any damage to persons or property by reason of any inspection
or reinspection authorized herein or failure to inspect or reinspect, nor
shall the issuance of any license nor the approval or disapproval of any license
and/or installation authorized herein constitute any representation, guaranty
or warranty of any kind by, nor create any liability upon, the borough or
any official, agent or employee thereof.
A.
Any annual license issued by the borough in accordance
herewith shall be a nonexclusive license for the use of such rights-of-way
within the borough as specified in the license, for the erection, construction,
reconstruction, operation, maintenance, dismantling, testing and use of a
private communications system.
B.
Any license issued by the borough is renewable annually
upon establishment by the licensee, to the satisfaction of the borough, that
the licensee is in compliance with this chapter, all applicable federal, state
and local ordinances and regulations and that the space occupied is not needed
for a public purpose.
A.
Any license issued for a private communications system
in accordance herewith shall apply only to the location or locations stated
on the license or licenses.
B.
Nothing in this chapter shall be construed as a representation,
promise or guaranty by the borough that any license, permit or other authorization
required under any borough law for the construction or installation of a private
communications system shall be issued. Nothing herein shall be deemed to create
an irrevocable license. Nothing herein shall be deemed to create an interest
in real estate in any licensee.
All technical standards governing construction, reconstruction, installation, operation, testing, use, maintenance and dismantling of a private communications system provided for herein shall be in accordance with all applicable FCC and other federal, state and local laws and regulations, including but not limited to Chapter 107, Electrical Standards, of the Code of the borough.
The Manager shall have the following powers and duties:
A.
Receive and review applications for licenses for any
private communications system;
B.
Review and examine all reports and filings submitted
by the licensee to the borough pursuant to this chapter;
C.
Submit regulations regarding the construction, reconstruction,
operation, maintenance, dismantling, testing or use of any private communications
system established by license in accordance herewith to the Council for approval;
and
D.
Administer the provisions of this chapter, including,
but not limited to, license issuance or denial, renewal or revocation, fee
collection and audits and other administrative matters and report to the Council
regarding same.
A.
All persons submitting a request for a license to construct
a private communications system in accordance herewith shall file with their
request bonds solely for the protection of the borough with a surety company
or trust company or companies as surety or sureties in an amount determined
by the Manager to protect the borough from any and all damages or costs suffered
or incurred by the borough as a result thereof, including, but not limited
to, attorney's fees and costs of any action or proceeding, and including
the full amount of compensation, indemnification, cost of removal or abandonment
of any property or other costs which may be in default, up to the full principal
amount of such bond; and the condition shall be a continuing obligation during
the entire term of any license issued in accordance herewith and thereafter
until the licensee shall have satisfied in full any and all obligations to
the borough which arise out of or pertain to the license for a private communications
system.
B.
None of the provisions of this section nor any bond accepted
by the borough pursuant hereto, nor any damages recovered by the borough thereunder,
shall be construed to excuse the faithful performance by or limit the liability
of the licensee under this chapter or any license issued in accordance herewith
or for damages, either to the full amount of such bond or otherwise.
It shall be a term and condition of any license issued in accordance
herewith that as a part of the consideration supporting the issuance of such
license and the borough's permission thereby to occupy and use any right-of-way
of the borough, that the licensee shall pay each year to the borough the following
compensation and license fees:
A.
Any private communications system which serves no customers
other than itself shall pay compensation and license fees in the amount of
$1 per linear foot for each diameter inch or less of underground conduit or
wire or each .250 diameter inch or less of aerial wire per annum. In no event
shall the fee be less than $250 per annum.
B.
Any private communication system that serves customers
within the borough shall pay 5% of the annual total local gross revenues.
A.
The annual compensation and license fee provided for in § 166-11A shall be payable annually on or before February 1 of each calendar year.
B.
The annual compensation and license fee provided for in § 166-11B shall be assessed quarterly for the preceding quarter, as of March 31, June 30, September 30 and December 31 of each year.
(1)
Each quarterly payment shall be payable and reportable
no less than 30 days after the relevant assessment date.
(2)
Each payment shall be accompanied by a report from the
licensee, in a form approved by the Manager, showing the basis for the computation
and such other relevant data as may be required by the Manager.
(3)
Each of such reports shall contain a notarized verification
by the chief financial officer of the licensee, and such reports shall be
verified annually, within 90 days of the close of business of the last day
of the calendar year by a certified public accountant acceptable to the borough
and at the expense of the licensee.
(4)
Failure to comply strictly with this section shall be
deemed to be a violation of this chapter and shall subject the licensee to
all penalties and remedies, both legal and equitable which are available to
the borough.
C.
The acceptance of any payment required hereunder by the
borough shall not be construed as an acknowledgment that the amount paid is
the correct amount due, nor shall such acceptance of payment be construed
as a release of any claim which the borough may have for additional sums due
and payable.
(1)
All fee payments shall be subject to audit by the borough
and assessment or refund if the payment is found to be in error.
(2)
In the event that such audit results in an assessment
by and an additional payment to the borough, such additional payment shall
be subject to interest at the rate of 1% per month or the maximum allowed
by Pennsylvania law, whichever is lower, calculated from the date on which
such additional payment was originally due and payable to the date of actual
payment.
D.
Nothing in this chapter shall be construed to limit the
liability of the licensee for all applicable federal, state and local taxes.
A.
The borough shall not at any time be liable for any injury
or damage occurring to any person or property, including, but not limited
to, loss of income or revenue and any other incidental or consequential damages,
from any cause whatsoever, including damages from the borough's negligent
omissions, if any, arising from the use, operation or condition of the licensee's
private communications system.
B.
The licensee shall indemnify, save and hold harmless
and defend the borough from all liens; charges; claims, including, but not
limited to, libel, slander, invasion of privacy and unauthorized use of any
trademark, trade name or service mark; demands; suits; actions; fines; penalties;
losses; costs, including, but not limited to, reasonable legal fees and court
costs; judgments; injuries; liabilities or damages, in law or equity, of any
and every kind and nature whatsoever, including damages caused by or arising
out of any act of negligent omission of the borough, its officers, servants,
agents, employees or contractors, or otherwise, arising out of or in any way
connected with the installation, operation, maintenance or condition of the
licensee's private communications system.
C.
The Manager, in consultation with the Borough Solicitor,
shall set the type and coverage of insurance required. In setting the amount,
the Manager shall take into consideration the size and location of the private
communications system, the financial resources of the licensee, the risk involved
to the borough and to the general public and such other factors as those officers
of the borough shall deem to be reasonable in light of all of the circumstances.
A.
Nothing in this chapter or in any license issued in accordance
herewith shall be construed as an abrogation by the borough of any of its
police powers.
B.
Nothing in this chapter or in any license issued in accordance
herewith shall be construed to create a license coupled with an interest in
the licensee, and all licenses granted hereunder shall be revocable by the
borough.
A.
Before commencing construction of its private communications
system in, above, over, under, across, through or in any way connected with
the rights-of-way of the borough, the licensee shall first obtain all required
written approvals from the Code Enforcement Office and all other appropriate
officials of the borough.
B.
Upon obtaining such written approval, the licensee shall
give the Manager written notice within a reasonable time of proposed construction,
but in no event shall such notice be given less than 10 days before such commencement.
C.
Any person who submits a request for a license in accordance
herewith shall include therein proposed agreements for the use of existing
utility poles and conduits, if applicable, with the owner(s) (including the
borough) of such facilities to be used or affected by the construction of
the proposed private communications system, which agreements shall become
effective on the date of execution of the license issued in accordance herewith
in the event that such person is issued a license.
D.
It shall be unlawful for the licensee or any other person to open or otherwise disturb the surface of any street or other right-of-way for any purpose whatsoever without obtaining approval to do so after proceeding in the manner prescribed in Subsections A and B hereof. Violation of this section shall subject the licensee to all penalties and remedies prescribed herein and to all other remedies, legal or equitable, which are available to the borough.
E.
The licensee shall restore any street or other right-of-way it has disturbed in accordance with the provisions of Chapter 192 of the Code of the borough and shall, at its own cost and expense, restore and replace any other property disturbed, damaged or in any way injured by or on account of its activities to as good as the condition such property was in immediately prior to the disturbance, damage or injury or pay the fair market value of such property to its owner.
F.
The licensee shall, at its own cost and expense, protect,
support, temporarily disconnect, relocate in the same right-of-way or remove
from such right-of-way any of its property when required to do so by the borough
because of right-of-way excavation, construction, repair, regrading or grading,
traffic conditions, installation of sewers, drains, water pipes, borough-owned
power or signal lines, vacation or relocation of any right-of-way or any other
type of structure or improvement of a public agency or any other type of improvement
necessary for the public health, safety or welfare.
G.
Nothing in this chapter or any license issued in accordance
herewith shall be construed as authorizing the licensee to erect and maintain
new poles in areas serviced by existing poles. The licensee shall obtain written
approval from the Manager before erecting any new poles or underground conduits
where none exist.
H.
The licensee shall maintain all wires, conduits, cables
and other real and personal property and facilities in good condition, order
and repair.
I.
The licensee shall keep accurate, complete and current
maps and records of its system and facilities which occupy the rights-of-way
within the borough and shall furnish as soon as they are available two complete
copies of such maps and records to the Manager.
J.
The licensee shall comply with all rules and regulations
issued by the borough governing the construction and installation of private
communications systems. In addition:
(1)
All aerial cables and wires shall be installed parallel
with existing telephone and electric utility wires; and
(2)
Multiple aerial configurations shall be in parallel arrangement
and bundled, in accordance with engineering and safety considerations; and
(3)
All underground installations shall be in the appropriate
size and type conduit or other enclosures approved by the Manager; and
(4)
All installations shall be underground in those areas
of the borough where both telephone and electric utilities' facilities
are underground at the time of the installation of the licensee's private
communications system. In areas where both telephone and electric utilities'
facilities are above ground at the time of the installation of the licensee's
private communications system, the licensee may install its system above ground
on existing utility poles, only upon the condition that at such time as those
facilities are placed underground by the telephone and electric utility companies,
the licensee shall likewise place its facilities underground at its sole cost
and expense.
(5)
The licensee, upon reasonable notice by the borough,
shall temporarily or permanently remove, adjust, raise or lower its facilities
within the right-of-way when the borough determines that such action is needed
for public use of the right-of-way, including, but not limited to, the passage
of nonstandard vehicles or when the borough determines that such facilities
are the cause of electromagnetic or other interference with other facilities
and equipment located within the right-of-way.
(6)
The licensee shall obtain the written permission of the
owner, including the borough, of any tree or other vegetation before it trims
or prunes the same.
A.
The licensee shall not transfer or assign its interest
in any license issued in accordance herewith without the prior written authorization
of the Council. For purposes of this section, a merger, consolidation, sale
of stock or transfer of ownership interests in the licensee, or a lease or
sublease, shall be deemed a transfer or assignment.
B.
Nothing in any approval by the Council authorizing any
transfer or assignment of any license issued in accordance herewith shall
be construed to waive or release any rights of the borough in and to the rights-of-way
of the borough or as a release of any of the borough's police powers.
