[HISTORY: Adopted by the Board of Supervisors of the Township
of Middletown 12-19-2000 by Ord. No. 00-15 (Ch. 13, Part 12, of
the 1992 Code). Amendments noted where applicable.]
For the purpose of this chapter, the following terms, phrases,
words and abbreviations shall have the meanings ascribed to them below.
Definitions of words defined in the Communications Act shall have
the meaning ascribed to them therein, unless otherwise set forth in
this chapter. 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 or entity:
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 control 5% or more of the outstanding stock, whether voting or
nonvoting.
Which controls grantee and/or is controlled by or is under common
control with such person or entity.
Any wire, optical fiber or other cable and any related device,
apparatus or auxiliary equipment for the purpose of voice, video or
data transmission.
The Communications Act of 1934, as now or hereafter amended.[1]
Any structure or section thereof containing one or more ducts,
conduits, manholes, handholes or other such facilities in the grantee's
telecommunications system.
A single enclosed raceway for conductors, optical fiber,
wire or other cable.
Any tangible component of the telecommunications system.
Federal Communications Commission or successor governmental
entity thereto.
The nonexclusive right and privilege granted to grantee under
this chapter.
The Township of Middletown, Bucks County, Commonwealth of
Pennsylvania, or the lawful successor, transferee or assignee thereof.
A person in continuous compliance with this chapter.
Any person franchised, licensed, permitted or otherwise lawfully
occupying space in the public way.
Any individual, sole proprietorship, partnership, association,
limited liability company, corporation or other form of organization
authorized to do business in the Commonwealth of Pennsylvania and
includes any natural person.
The surface of and the space above and below any public street,
highway, turnpike, bridge, land path, alley, court, boulevard, sidewalk,
parkway, way, land, public way, drive, circle or other public right-of-way,
including public utility easements, dedicated utility strips or rights-of-way
dedicated for compatible uses, and any temporary or permanent fixtures
or improvements located thereon now or hereafter held by the franchise
authority in the service area which shall entitle the franchise authority
and the grantee to the use thereof for the purpose of constructing,
leasing, operating and maintaining the telecommunications system.
"Public way" shall also mean any easement now or hereafter held by
the franchise authority within the service area for the purpose of
public travel and/or for utility and/or public service use, dedicated
for compatible uses, and shall include other easements and/or rights-of-way
as shall within their proper use and meaning entitle the franchise
authority and the grantee to use thereof for the purposes of constructing,
leasing, operating or maintaining grantee's telecommunications
system over poles, wires, cables, conductors, ducts, conduits, pedestals,
vaults, manholes, amplifiers, appliances, attachments and other property
as may be ordinarily necessary and pertinent to the telecommunications
system.
The present Township boundaries of the franchising authority
and shall include any additions thereto by annexation or other legal
means.
Conduit facilities other than those occupied by the grantee
or any prior licensee and occupied duct(s) held by grantee for emergency
or spare use.
The transmission of communications or information in electrical,
electronic or optical form or by any means, whether now known or hereafter
to become known, including, but not limited to, voice, video or data,
whether or not the content of the transmission or the medium of the
transmission is owned by the grantee itself, unless the licensee is
able to demonstrate to the franchise authority by a preponderance
of the evidence that such transmission is excluded from the definition
of telecommunications service under this subsection.
Telecommunications services do not include the following:
All wires, cables, ducts, conduits, vaults, poles and other
necessary facilities owned and/or used by the grantee for the purpose
of providing telecommunications services and located in, under and
above a public way.
The period consisting of a full calendar year, beginning
January 1 and ending December 31, unless otherwise provided in the
franchise.
[1]
Editor's Note: See 47 U.S.C. § 151 et seq.,
as amended by the Telecommunications Act of 1996.
A.
Grant. Subject to state or federal law, it shall be unlawful
for any person to construct, lease, maintain or operate a telecommunications
system within the public ways unless in compliance with this chapter.
Continuous compliance with this chapter grants to grantee a nonexclusive
right and privilege which authorizes the grantee to construct, lease,
maintain and operate a telecommunications system in, along, upon,
across, above, over, under or in any manner connected with public
ways within the service area and, for that purpose, to erect, install,
construct, repair, replace, reconstruct, maintain and/or retain in,
on, over, under, upon, across and/or along any public way and all
extensions thereof and additions thereto such poles, wires, cables,
fiber-optic cable, conductors, ducts, conduits, vaults, manholes,
pedestals, amplifiers, appliances, attachments and/or other related
property or equipment as may be necessary or appurtenant to the telecommunications
system.
B.
Nonexclusive grant. The right to use and occupy said public
ways, as defined above, for the purpose herein set forth shall not
be exclusive in grantee. This telecommunications chapter shall not
apply to use of the public ways by a governmental entity or quasi-governmental
entity.
C.
Not a cable system. The franchise does not authorize the grantee
to operate a cable television system, nor shall it apply to "cable
service," as defined by § 602 of the Communications Act
(47 U.S.C. § 522).
D.
Not a pole attachment agreement. The franchise does not authorize
the grantee to attach to any poles, to occupy any conduit facility,
or to attach or occupy any other property owned by the Township, jointly
owned by the Township or the poles, conduit facility or other property
rented or obtained by other arrangements by the Township from another
owner, any wire, optical fiber or cable or related service, apparatus
or auxiliary equipment.
A.
Conditions of street occupancy. All transmission and distribution
structures, poles, other lines 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 the telecommunications
system 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 and in a manner
approved by the franchising authority. 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 may, after providing notice to grantee, refill and/or
repave any opening made by grantee in the public way, and the expense
thereof shall be paid by grantee. The Township reserves the right,
after providing notice to grantee, to remove and/or repair any work
done by grantee which, in the sole determination of the Township Engineer,
is inadequate. The 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. All of grantee's work shall be done
in strict compliance with all applicable rules, regulations and ordinances
of the Township.
C.
Relocation at request of franchising authority. Upon its receipt
of reasonable advance notice, except under exigent circumstances,
the grantee shall, at its own expense, locate, protect, support, temporarily
disconnect, relocate in the public way and/or remove from the public
way or other property owned by the franchising authority any property
of the grantee, when lawfully required by the franchising authority
by reason of traffic conditions, public safety, street abandonment,
freeway and street construction, change or establishment of street
grade, installation of sewers, drains, gas or water pipes, electrical
conduits or any other type of structures or improvements by the franchising
authority; provided, however, the grantee in all such cases shall
share proportionately with utility companies in any federal, state
or county funds awarded to the franchising authority specifically
for any of the purposes enumerated above. Nothing in this section
shall be construed to require the franchising authority to make application
for or seek a grant for any funds. Upon the failure of the grantee
to commence, pursue or complete any work required by law (or by the
provisions of grantee's franchise or any other applicable federal,
state or local law, ordinance, rule or regulation) to be done in any
public way or other public place within the time prescribed and to
the satisfaction of the franchising authority, the franchising authority,
at its option, may cause such work to be done and the grantee shall
pay to franchising authority the cost thereof in the itemized amounts
reported by the franchising authority to the grantee within 30 days
after receipt of such itemized report. But the grantee, upon prior
approval of the franchising authority, may elect to abandon any or
all of the telecommunications system rather than relocate it.
D.
Relocation at request of third party. The grantee shall, on
the request of any person holding a requisite lawful permit issued
by the franchising authority, temporarily raise or lower its wires
to permit the moving of any equipment, building, material or otherwise,
provided:
(1)
The expense of such temporary raising or lowering of wires is
paid by said person, including, if required by the grantee, making
such payment in advance.
(2)
The grantee is given not less than 10 days' advance written
notice to arrange for such temporary wire changes. The grantee may
request the franchising authority to temporarily raise or lower its
wires to make other changes in its plant and equipment to accommodate
grantee's construction, which request shall be promptly considered
by the franchising authority.
E.
Trees and shrubbery. The grantee shall notify the franchising
authority 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 the telecommunications system of the grantee; at the option of
the franchising authority, such trimming may be done by the franchising
authority at the reasonable expense of the grantee of by the grantee
under the franchising authority's supervision and direction at
the expense of the grantee. Trimming shall be limited to the area
required for clear telecommunications system passage and shall not
include major structural branches which materially alter the appearance
and natural growth habits of the tree. Grantee shall give the franchising
authority and all affected property owners five business days'
prior written notice of the grantee's intent to trim trees or
other natural growth pursuant to this section.
F.
Use of grantee's equipment by franchising authority. Except
as already set forth in this chapter and subject to any applicable
state or federal regulations or tariffs, the franchising authority
shall have the right to make additional use for any public purpose
of any poles or conduits controlled or maintained exclusively by or
for the grantee in any public way, provided that:
(1)
Such use by the franchising authority does not interfere with
use by the grantee.
(2)
The franchising authority holds the grantee harmless from and
against any and all claims, demands, costs and/or liabilities of every
kind and nature whatsoever arising out of such use of said poles or
conduits, including, but not limited to, reasonable attorney's
fees and costs; provided, however, that the franchising authority
shall not hold harmless the grantee from claims and damages arising
out of willful or negligent acts caused by grantee.
(3)
At the grantee's sole discretion, the franchising authority
may be required to pay a reasonable rental fee or otherwise reasonably
compensate the grantee for use of such poles, conduits or equipment.
G.
Safety requirements. Construction, installation and maintenance of the telecommunications system shall be performed in an orderly and workmanlike manner. All cable, wires, conductors and other components, elements and parts of the telecommunications system shall be installed, where possible, parallel with and in the same manner as electric and telephone lines. All such work shall be performed in accordance with applicable safety code or technical requirements, including, but not limited to, National Electrical Safety Code (National Bureau of Standards), National Electrical Code (National Bureau of Fire Underwriters), Bell System Code of Pole Line Construction and applicable FCC and/or other federal and state regulations. Multiple cable wires, lines, fiber-optic cable, waveguides and/or other similar facility configurations shall be arranged in parallel and bundled with due respect for engineering considerations. The telecommunications system shall not endanger and/or interfere with the safety of persons or property in the service area. In particular, grantee shall comply with all federal laws and/or regulations which govern plant signal leakage and/or interfere with communications media. Any antenna structure used in the telecommunications system shall comply with all construction, marking and lighting of antenna structure requirements of the United States Department of Transportation (Federal Aviation Administration), the Township's zoning requirements (Chapter 500) and the FCC. If at any time it is determined by the franchising authority and/or any other agency or authority of competent jurisdiction that any part of the telecommunications system, including, without limitation, any means used to distribute telecommunications service, is harmful to the health and safety of any person, then the grantee shall, at its own cost and expense, promptly correct all such conditions.
H.
Maps. Prior to beginning any construction, the grantee shall
provide the Township with an initial construction schedule for work
in the public ways and the estimated total cost of such work. When
grantee's construction in the public ways is completed, the grantee
shall provide the Township with a map showing the location of its
installed telecommunications system in the public ways, as built.
Such as-built maps shall be provided in both paper form as well as
in an electronic format for placement on the Township's GIS system,
each in a form acceptable to the Township Engineer. Annually thereafter,
the grantee shall provide a map to the Township 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 Township adopts for
general use.
I.
Aerial and underground construction. In those areas of the service
area where all of the transmission or distribution facilities in the
form of cables, wires, lines, fiber-optic cable, waveguides and/or
other similar facilities of the respective public utilities providing
telephone communications and electric services are underground, the
grantee likewise shall construct, operate and maintain all of its
transmission and distribution facilities underground. In those areas
of the service area where the transmission and/or distribution facilities
of the respective public utilities providing telephone communications
and electric services are both aerial and underground, grantee shall
have the sole discretion to construct, operate and maintain all of
its transmission and distribution facilities, or any part thereof,
aerially or underground. If at any time the franchising authority
determines that existing wires, cables or other like facilities of
public utilities anywhere in the service area shall be changed from
an overhead to an underground installation, the grantee shall also,
at no expense to the franchising authority, convert its telecommunications
system to an underground installation. Nothing in this section shall
be construed to require the franchising authority to request any such
utility relocation. Grantee's design and engineering specifications.
The grantee's design and engineering specifications shall take
into account the existing landscaping of the property.
J.
Excavations. The grantee may make excavations in public ways
for any facility needed for the maintenance or extension of the grantee's
telecommunications system, 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 franchises, 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.
K.
Installation of service. All installation of telecommunications
system shall be performed in a workmanlike manner, using materials
of good and durable quality with due regard to the preservation and
protection of existing structures. All work to be performed in, on
or about the dwelling or structure of a customer or potential customer
shall be performed under the reasonable direction or with the consent
of such customer or potential customer.
L.
Maintenance of facilities. Grantee shall provide and put in
use all telecommunications system facilities necessary to control
and carry grantee's telecommunications services so as to prevent
injury to the Township's property or property belonging to any
person within the Township. The grantee, solely at its own expense,
shall repair, renew, change and improve said facilities, from time
to time, as may be necessary to accomplish this purpose. The grantee
shall not construct its telecommunications system in a manner that
requires any customer, except the Township, to install cables, ducts,
conduits or other facilities in, under or over the Township's
public ways.
M.
Emergency usage. The grantee shall comply with emergency or
disaster notification requirements of the Federal Communications Commission
and all state and local emergency and/or disaster agencies.
N.
Technical performance and standards. All performance and technical
standards governing construction, reconstruction, installation, operation,
testing, maintenance and dismantling of the telecommunications system
provided herein shall be in accordance with all FCC and other applicable
federal, state and local laws, ordinances and regulations.
O.
Reservation of Township public ways. Nothing in the franchise
shall be construed to prevent the Township 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
telecommunications system 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 telecommunications
system shall be removed or replaced in the manner the Township shall
direct; provided, however, the Township will cooperate with the grantee
to identify alternate locations within the public ways. 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 Township Engineer's written notice
to grantee, the Township may cause and/or effect such removal, adjustment
or relocation, and the expense therefor shall be paid by the grantee,
including all costs and expenses incurred by the Township due to the
grantee's delay.
P.
Common users. The grantee acknowledges that the public ways
have a finite capacity for containing conduits. Therefore, grantee
agrees that, whenever the Township Engineer determines it is impracticable
to permit construction of an underground conduit system by any person
which may at the time have authority from the Township to construct
or maintain conduits or ducts in the public ways, the Township Engineer
may require grantee to afford to such other person the right to use
grantee's surplus ducts or conduits in common with the grantee,
pursuant to the terms and conditions of an agreement for use of surplus
conduits and ducts being entered into by the grantee and the licensee.
Q.
Notice to common users. The grantee shall give a licensee and
the Township 120 days' advance notice of grantee's need
to occupy a licensed conduit and shall propose that the licensee take
the first feasible action listed:
(1)
Pay conduit rent to grantee designed to recover the cost of
retrofitting the conduit with multiplexing, optical fibers or other
space-saving technology sufficient to meet the licensee's space
needs.
(2)
Pay conduit rent to grantee based on the cost of new conduit
constructed to meet the licensee's space needs.
(3)
Vacate ducts that are no longer needed.
(4)
Construct and maintain sufficient new conduits to meet the licensee's
space needs.
R.
Occupancy right. When two or more licensees occupy a section
of conduit facility, the last licensee to occupy the conduit facility
shall be the first to vacate or construct a new conduit. When conduit
rent is revised because of retrofitting of space-saving technology
and/or construction of new conduit, all licensees shall bear the revised
cost.
S.
Safety standards for licensees. All attachments shall meet local,
state and federal clearance and other safety requirements, be properly
grounded and anchored and meet the provisions of contracts executed
between the grantee and the licensee. The grantee may, at its option,
correct any attachment deficiencies and charge the licensee for its
cost. Each licensee shall pay the grantee for any fines, fees, damages
or other reasonable costs the licensee's attachments cause the
grantee to incur.
T.
Removal of equipment. Upon its failure to comply with this telecommunications
chapter, the franchising authority shall have the right to require
the grantee to remove, at its own expense, all portions of the telecommunications
system from all public ways. The grantee shall, within six months
after having been given written notice, remove from the public ways
all such property of such telecommunications system other than any
which the franchising authority may permit to be abandoned in place.
In the event of such removal, the grantee shall promptly restore the
public way or other area from which such property has been removed
to a condition as good as that prior to such work.
(1)
Any property of the grantee remaining in place six months after
the grantee is given notice pursuant to this subsection may, at the
option of the franchising authority, be considered permanently abandoned.
The franchising authority may extend such time not to exceed an additional
90 days.
(2)
Any property of the grantee which the franchising authority
permits to be abandoned in place shall be abandoned in such manner
as the franchising authority shall prescribe. Subject to the provisions
of any utility joint-use attachment agreement, upon permanent abandonment
of the property of the grantee in place, the property shall become
that of the franchising authority, and the grantee shall submit to
the franchising authority an instrument in writing, to be approved
by the franchising authority, transferring to the franchising authority
the ownership of such property.
A.
Franchise fee. Unless waived by the franchising authority or
otherwise agreed by the franchising authority and the grantee, the
grantee shall pay to the franchising authority a franchise fee in
an amount determined by the Township. The franchise fee shall be determined
so as to fully reimburse the Township for all costs incidental to
and incurred by the Township as a result of the grantee's construction,
leasing, maintenance and operation of its telecommunications system
and the disruption to the public and disturbance of the public ways
or other public property relating to such construction, leasing, maintenance
or operation. Such costs shall include, but not be limited to, the
following:
(1)
The costs incurred by the Township for managing the public ways,
including, but not limited to, costs associated with implementing
and administering this chapter to the grantee, review and investigation
of documentation and other information concerning grantee, inspecting
job sites, creating and updating managing systems, engineering services,
determining the adequacy of public ways' restoration, budget
analysis, recordkeeping, legal assistance and systems analysis.
(2)
Any costs incurred in returning the public ways to original
condition, if done or caused to be done by the Township.
(3)
Any costs to the Township for police, fire or EMS services.
(4)
Accelerated deterioration of the public way caused by the grantee's
construction, installation, excavation or other work related to any
part of a telecommunications system or disturbance of the public way,
resulting in the need to reconstruct the public way earlier than would
be required if such construction, installation, excavation or other
work did not occur.
(5)
The decreased value of the public works should the same not
be returnable to its original condition.
B.
The franchise fee shall be assessed on an annual basis and shall
be payable to the franchising authority no later than 30 days after
the grantee's receipt of a statement from the Township setting
forth the franchise fee for which payment is due. Upon request by
the franchising authority, the grantee shall provide such additional
information as may be reasonably required.
C.
In the event that any franchise fee or other payment is not
made or the requisite documentation 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 3% points. Any amount recomputed
to reflect correct payment due shall bear interest as described from
the date such payment was originally due.
A.
Testing for compliance.
(1)
From time to time, upon request of the franchising authority,
a licensee shall furnish to the franchising authority, at no expense
to the franchising authority:
(2)
The franchising authority may perform technical tests of the
telecommunications system during reasonable times and in a manner
which does not unreasonably interfere with the normal business operations
of the grantee or the telecommunications system in order to determine
whether or not the grantee is in compliance with the terms hereof
and all applicable laws, ordinances, rules and regulations. Except
in emergency circumstances, such tests may be undertaken only after
giving grantee reasonable notice thereof in writing, not to be less
than five days, and providing a representative of the grantee an opportunity
to be present during such tests. In the event that such testing demonstrates
that the grantee has failed to comply with this chapter, the reasonable
costs of such tests shall be borne by the grantee and paid to the
franchising authority within 30 days. In the event that such testing
demonstrates that grantee has complied therewith, the cost of such
testing shall be borne by the franchising authority.
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
by the Township on account of any suit, judgment, execution, claim
or demand whatsoever arising out of the construction, leasing, operation
or maintenance of the telecommunications system authorized herein,
whether or not any act or omission complained of is authorized, allowed
and/or prohibited by the franchise and the rights granted thereunder.
B.
Insurance.
(1)
Grantee shall obtain and maintain in full force and effect throughout
the term of the franchise insurance with an insurance company licensed
to do business and doing business in the Commonwealth of Pennsylvania
and acceptable to the franchising authority. 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 franchising authority with
proof of such insurance so required at the effective date. The franchising
authority reserves the right to review these insurance requirements
during the franchise and, upon reasonable advance notice to grantee,
to reasonably adjust insurance coverage and their limits when deemed
necessary and prudent by the franchising authority, based upon changes
in statutory law, court decisions and/or the claims history of the
industry and/or the grantee.
(2)
Subject to grantee's right to maintain reasonable deductibles
in such amounts as are approved by the franchising authority, grantee
shall obtain and maintain in full force and effect for the duration
of the franchise, at 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:
| |||
|
Premises operations; independent contractors
Products/completed operations
Personal injury
Contractual liability
Explosion, collapse and underground property damage
|
Combined single limit for bodily injury and property damages
$2,00,000 per occurrence or its equivalent
| ||
|
Comprehensive automobile insurance coverage for loading and
unloading hazards, for:
| |||
|
Owned/leased automobiles
Nonowned automobiles
Hired automobiles
|
Combined single limit of bodily injury and property damage $1,000,000
per occurrence or its equivalent
| ||
(3)
The franchising authority shall receive, without expense, copies
of certificates of insurance evidencing coverage stated above. The
franchising authority may make reasonable requests for deletion, revision
or modification of particular policy terms, conditions, limitations
or exclusions, except where policy provisions are established by law
or regulation binding upon either franchising authority or grantee
or upon the underwriter for any of such policies. Upon request for
deletion, revision or modification by the franchising authority, grantee
shall exercise its best reasonable efforts to accomplish the changes
and shall pay the cost thereof.
(4)
Grantee agrees that, with respect to the above-required insurance,
all insurance certificates will contain the following required provisions:
(a)
Name the franchising authority 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 30 days' written notice to the franchising
authority for cancellation, nonrenewal or material change.
(c)
Provide that all provisions of this chapter 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 franchising authority 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 franchising
authority 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 franchising authority a corporate surety bond with
a surety company authorized to do business in the Commonwealth of
Pennsylvania and found acceptable by the franchising authority in
the amount of 15% of the grantee's estimated project costs, to
secure the grantee's performance of its obligation and faithful
adherence to all requirements of the franchise. The Township shall
have the right to verify all such estimated project costs and to require
the grantee to increase the amount of said bond accordingly.
(1)
The rights reserved to the franchising authority with respect
to the bond are in addition to all other rights of the franchising
authority, whether reserved by the franchise or authorized by law,
and no action, proceeding or exercise of a right with respect to such
bond shall affect the franchising authority's rights to demand
full and faithful performance under the franchise 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 canceled by the surety
nor any intention not to renew be exercised by the surety until 60
days after receipt by the Township of Middletown, 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 30 days' advance written
notice to the Township."
F.
Neither the provisions of this agreement 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
franchise 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 franchising authority under this telecommunications
chapter or otherwise, the franchising authority reserves the right
to forfeit and revoke the franchise and all rights and privileges
of the grantee in the event of willful or repeated violation of this
chapter.
B.
Penalties. Any person which commits or suffers the violation
of this chapter 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 attorney's 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 chapter which is found to have been violated. In addition
to civil actions before a Magisterial District Judge, the Township
may enforce this chapter in an action in equity brought in the Bucks
County Court of Common Pleas.
A.
Compliance with applicable laws and ordinances. The grantee
shall, at all times during the term of this agreement, be subject
to the exercise of the police power by the franchising authority and
to such other lawful ordinances, rules and regulations as the franchising
authority shall hereafter adopt. There is hereby reserved to the franchising
authority every right and power which is required to be herein reserved
or provided by any ordinance, rule or regulation of the franchising
authority, and the grantee shall comply with any action or requirements
of the franchising authority in its exercise of such right or power
heretofore or hereafter enacted or established. The grantee shall
comply with all lawful ordinances, codes, laws, rules and regulations
of the franchising authority, 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 chapter are in conflict
with other requirements of the ordinances of the Township of Middletown,
the most restrictive or those imposing the highest standards shall
govern any award of franchise by the Township at law or equity now
or henceforth existing to proceed versus grantee for enforcement of
the franchise or violation of the franchise or ordinances of the Township.
