[Adopted 8-1-2006 by Ord. No. 305]
This article shall be known as the "Borough
of Tullytown Rights-of-Way Management 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.
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 grantee and/or is controlled by,
or is under common control with such person or entity.
The Borough of Tullytown, County of Bucks, Commonwealth of
Pennsylvania, or the lawful successor, transferee, or assignee thereof.
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 § 151-31B 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: a) whether the amounts are paid in cash, in trade,
or by means of some other benefit to grantee or its affiliates; b)
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 c) 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 § 151-31B 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 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.
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
to this article.[1]
[1]
Editor's Note: Said Appendix A is on file
in the Borough'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
Rights-of-Way Ordinance. Continuous compliance with this Rights-of
Way Ordinance grants to grantee a non-exclusive 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.
(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
grantee's construction, operation, and/or maintenance of its facilities
and equipment there occurs a disturbance of any public way by grantee,
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 Borough 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 Borough
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 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, 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 paper form. 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.
F.
Excavations. Grantee may make excavations in public
ways for any facility, subject to obtaining excavation permits from
the Borough. Prior to doing such work, 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 township 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 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.
A.
In consideration of occupying or using the Public
Ways under this article, grantee shall pay to 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. 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 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
(6) 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 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.
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. The 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 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 Borough within 30
days following written notice to 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 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 the article and the
rights granted thereunder.
B.
Coverage to be maintained.
(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 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.
(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
| ||
|
(a) Workers' compensation and statutory employers
liability
|
$100,000/$500,000/$100,000
| ||
|
(b) Commercial general (public) liability, to
include coverage for the following where the exposure exists:
| |||
|
Premises operations
|
Combined single limit for
| ||
|
Independent contractors
|
bodily injury and property
| ||
|
Products/completed operations
|
damages $2,000,000 per
| ||
|
Personal injury
|
occurrence or its equivalent
| ||
|
Contractual liability
| |||
|
Explosion, collapse and underground property
damage
| |||
|
(c) Comprehensive vehicle insurance coverage
for loading and unloading hazards, for:
| |||
|
Owned/leased vehicles
|
Combined single limit of bodily
| ||
|
Nonowned vehicles
|
injury and property damage $1,000,000
| ||
|
Hired vehicles
|
per occurrence or its equivalent
| ||
(3)
The Borough 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 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 workers' 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 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.
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 grantee's estimated costs to
secure 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 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 cancelled
by the surety nor any intention not to renew be exercised by the surety
until 60 days after receipt by the Borough of Tullytown, 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 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 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 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 Borough 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.
B.
Penalties. Any person which 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.
A.
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, County of Bucks,
Commonwealth of Pennsylvania, and the United States of America which
are now in effect or hereafter enacted.
B.
Conflict. Whenever the requirements of this article
are in conflict with other requirements of the ordinances of the Borough
of Tullytown, 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 Borough 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 Borough.
C.
Effective date. This article shall become effective
five days after the date of its within enactment.
D.
Severability. The provisions of this article 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 or provisions
of this article. It is hereby declared to be the intent of the Borough
Council that this article would have been adopted if such illegal,
invalid or unconstitutional section, clause, sentence or part of a
provision had not been included herein.
