[Adopted 11-6-2006 by Ord. No. 2006-3]
This article shall be known as the "Penndel Borough Rights-Of-Way
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:
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.
The Borough of Penndel, County of Bucks, Commonwealth of
Pennsylvania, or the lawful successor, transferee or assignee thereof.
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.[1]
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 § 350-35B 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. The following are not a facility: a railroad, street
railway, gas pipe, water pipe, electric conduit, electric piping,
telephone pole, telegraph pole, electric lightpole, electric power
pole, coal tipple or obstruction to the public way.
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 § 350-35B 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
which 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.
[1]
Editor's Note: See 47 U.S.C. § 521 et seq.
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: Appendix A is on file in the Borough 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 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 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 the grantee's
construction, operation and/or maintenance of its facilities and equipment
there occurs a disturbance of any public way by the grantee, grantee
shall, at its expense, replace and restore such public way to a condition
which existed immediately prior to such disturbance. If a grantee
excavates the surface of any public way, the 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 the grantee, to remove and/or repair any work
done by the 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 a 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 the 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, the grantee
shall provide the Borough with a construction schedule for work in
the pubic ways, which schedule shall be updated as changed. Upon completion
of initial construction and upon completion of construction of any
modification to its facilities, the 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 both paper forms as well
as in an electronic format for placement on the Borough's GIS
system. Annually thereafter, the grantee shall provide a map to the
Borough 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 Borough adopts for general use.
F.
Excavations. A grantee may make excavations in public ways for any
facility, subject to obtaining excavation permits from the Borough.
Prior to doing such work, the 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 Borough 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 the 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 the 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. The 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 the grantee authorized to make
such certification, explaining how the payment was calculated. In
connection with the rental payment due on February 14th, the grantee
shall also submit to the Borough, 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.
The 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.
The 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. 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 the 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 the Borough
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.
The 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.
Insurance.
(1)
The 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 or better by Standard and
Poors. The grantee shall provide the Borough with proof of such insurance
so required.
(2)
The grantee shall obtain and maintain in full force and effect, at
the grantee's sole expense, insurance coverage in the following
types and minimum amounts:
|
Type
|
Amount
| |||
|---|---|---|---|---|
|
a.
|
Worker's compensation and statutory employer's liability
|
$100,000/$500,000/$100,000
| ||
|
b.
|
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
| |||
|
c.
|
Comprehensive vehicle insurance coverage for loading
and unloading hazards, for:
| |||
|
•
|
Owned/leased vehicles; nonowned vehicles; hired vehicles
|
Combined single limit of bodily injury and property
damage $1,000,000 per occurrence or its equivalent
| ||
(3)
The Borough shall receive, without expense, copies of certificates
of insurance evidencing coverage stated above.
(4)
The 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 worker's compensation);
(b)
Provide for 60 days' written notice to the Borough for cancellation,
nonrenewal, or material change; and
(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 the 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.
The 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 the grantee's estimated costs to secure the
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 the 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 Penndel, 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 ordinance
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 article 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 Penndel,
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 the grantee for enforcement
for violation of this article or ordinances of the Borough.
