[Ord. 516, 9/13/2006, § 1]
This part shall be known as the "Lower Southampton Township
Rights-of-Way Ordinance."
[Ord. 516, 9/13/2006, § 2]
For the purpose of this part, 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: (1) 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; (2) 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 (3) which controls grantee and/or is controlled by
or is under common control with such person or entity.
See "Communications Act."
The Communications Act of 1934, as amended, as of the time
of enactment of this part.
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 part under § 21-404.2.
Any tangible asset in the public way, used or required to provide a nonexempt service to residences or businesses within the service area. With the exception of small wireless facilities which are defined in § 27-202 and regulated in § 27-1403F(6.1) and (6.2) of the Lower Southampton Township Zoning Ordinance, the following are not a "facility": a railroad, street railway, gas pipe, water pipe, electric conduit, electric piping, telephone pole, telegraph pole, electric light pole, electric power pole, coal tipple or obstruction to the public way.
[Amended by Ord. No. 600, 9/14/2022]
A person who enjoys a nonexclusive privilege to occupy or
use a public way to provide nonexempt service under this part and
who is in continuous compliance with this part.
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: (1) whether the amounts are paid in cash, in trade,
or by means of some other benefit to grantee or its affiliates; (2)
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 (3) 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 part under § 21-404.2.
Any natural person, sole proprietorship, partnership, association,
limited liability company, corporation or other form of organization
authorized to do business in the Commonwealth of Pennsylvania and
provides or seeks to provide one or more nonexempt services to residences
or businesses in the service area. A governmental entity or a municipal
authority is not a "person."
The surface of, and the space above and below, any public
street, unopened right-of-way, highway, turnpike, bridge, land path,
alley, court, boulevard, sidewalk, parkway, way, lane, public way,
drive, circle or other public right-of-way held by the Township in
the service area. Public way shall also mean any easement now or hereafter
held by the Township within the service area for the purpose of public
travel and/or for utility and/or public service use dedicated for
compatible uses.
The present municipal boundaries of the Township, and shall
include any additions thereto by annexation or other legal means.
The Township of Lower Southampton, County of Bucks, Commonwealth
of Pennsylvania, or the lawful successor, transferee or assignee thereof.
[Ord. 516, 9/13/2006, § 3]
Each person, other than on a transitory basis, who occupies
or uses or seeks to occupy or use a public way to provide a nonexempt
service to residences or businesses within the service area, or places
any equipment or facility in a public way other than on a transitory
basis, including persons with installation and maintenance responsibilities
by lease, sublease or assignment, must register with the Township.
Registration is accomplished by filing with the Township a completed
provider certification in the form shown at Appendix 21-A.[1]
[1]
Editor's Note: Appendix 21-A is attached to this chapter.
[Ord. 516, 9/13/2006, § 4]
1.
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 part.
Continuous compliance with this part 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.
2.
Exemptions. This part shall not apply to occupation or use of the
public ways to provide:
A.
The transportation of passengers or property, or both, as 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.
B.
The transportation of artificial or natural gas, electricity, petroleum
or petroleum products or water, or any combination of such substances,
for the public.
C.
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.
D.
The diverting, developing, pumping, impounding, distributing or furnishing
of water from either surface or subsurface sources to or for the public.
E.
The collection, treatment or disposal of sewage for the public.
F.
The conveyance or transmission of messages or communications by telephone or telegraph for the public, and the deployment of small wireless facilities as regulated in § 27-1403F(6.1) and (6.2) of the Lower Southampton Township Zoning Ordinance.
[Amended by Ord. No. 600, 9/14/2022]
G.
The diverting, pumping or impounding of water for the development
or furnishing of hydroelectric power to or for the public.
H.
The transportation of oxygen or nitrogen, or both, by pipeline or
conduit for the public.
I.
Any ancillary service reasonably necessary or appropriate for the
accomplishment of services specified in Subsection A through H.
J.
Cable service.
3.
Not a cable system. This part does not authorize a person to provide
cable service. A person seeking to provide cable service must obtain
permission from the Township under separate legislation of the Township.
4.
Not a pole attachment agreement. This part 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.
[Ord. 516, 9/13/2006, § 5]
1.
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.
2.
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 Township reserves the right, after providing notice
to grantee, to remove and/or repair any work done by grantee which
is inadequate. The reasonable cost thereof, including the cost of
inspection and supervision, shall be paid by the grantee. All excavations
made by grantee in the public way shall be properly safeguarded for
the prevention of accidents.
3.
Trees and shrubbery. The grantee shall notify Township and all affected
property owners regarding grantee's need to trim trees or other natural
growth upon and overhanging public ways so as to prevent the branches
of such trees from coming in contact with its facilities or equipment.
Trimming shall be limited to the area required to clear its facilities
or equipment.
4.
Safety requirements. All such work in the public ways shall be performed
in accordance with applicable safety codes and technical requirements.
5.
Maps. Prior to beginning any construction of facilities, grantee
shall provide the Township with a construction schedule for work in
the public ways, which schedule shall be updated as changed. Upon
completion of initial construction and upon completion of construction
of any modification to its facilities, grantee shall provide the Township
with a map showing the location of its installed facilities in the
public ways. Such maps shall be provided in both paper form as well
as in an electronic format for placement on the Township's GIS system.
Annually thereafter, grantee shall provide a map to the Township showing
the location of grantee's facilities in the public ways on a scale
of 150 feet per inch or whatever standard scale the Township adopts
for general use.
6.
Excavations. Grantee may make excavations in public ways for any
facility subject to obtaining permits from the Township. Prior to
doing such work, grantee must apply for and obtain appropriate permits
from the Township and give appropriate notices to any other licensees
and/or permittees of the Township, and/or other units of government
owning or maintaining facilities which may be affected by the proposed
excavation.
7.
Reservation of Township public ways. Nothing in this part shall be
construed to prevent the Township or other agency of government or
municipal authority from constructing sewers, grading, paving, repairing
and/or altering any street and/or laying down, repairing and/or removing
water mains and/or constructing and/or establishing any other public
work or improvement. If any of the grantee's facilities or equipment
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 Township or other agency
of government or municipal authority shall direct. Any and all such
removal or replacement shall be at the expense of the grantee. Should
grantee fail to remove, adjust or relocate its facilities by the date
established by the Township or other agency of government or municipal
authority, the Township or other agency of government or municipal
authority may cause and/or effect such removal, adjustment or relocation,
and the expense thereof shall be paid by grantee, including all reasonable
costs and expenses incurred by the Township or other agency of government
or municipal authority due to grantee's delay.
[Ord. 516, 9/13/2006, § 6]
1.
In consideration of occupying or using the public ways under this
part, grantee shall pay to Township a rental equal to 5% of gross
revenue.
2.
The rental shall be assessed on a calendar quarterly basis and shall
be payable to the Township no later than 45 days after the expiration
of the calendar quarter for which payment is due. Grantee shall file
with the Township a complete and accurate statement, under 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 Township, on that date or no later than six months thereafter,
a detailed statement by an officer of the grantee certified by the
grantee's independent certified public accountant verifying the accuracy
of the gross revenue and rental payments for the previous calendar
year, with a detailed breakdown and explanation of the calculation
by each month.
3.
Grantee shall keep accurate books of account, which shall clearly
support the calculation of rentals and describe in sufficient detail
the amounts attributable to each specific component of gross revenue.
Such books of account and all supplemental information and source
documents in support thereof, including, but not limited to, third
party remittances and contract documents, shall be made available
to the Township and its authorized representatives for examination
at a location in 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 Township.
Grantee shall exercise its best efforts to obtain financial records
of affiliates for the Township for the purpose of verifying the accuracy
of the rental payments. Township shall have the right to examine and
to recompute any amounts determined to be payable under this part;
provided, however, that such examination shall take place within 48
months following the close of each year. Any additional amount due
to the Township as a result of the examination and recomputation shall
be paid within 30 days following written notice to the grantee by
the Township, which notice shall include a copy of the examination
report. In the event that said examination determines that funds are
owed to the Township in an amount in excess of 2%, the cost of said
examination shall be borne by the grantee and reimbursed to Township
within 30 days following written notice to grantee.
4.
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.
[Ord. 516, 9/13/2006, § 7]
1.
Grantee shall save the Township, its agents, employees and elected
and appointed officials harmless from and against all claims, damages,
losses and expenses, including reasonable attorney's fees, sustained
on account of any suit, judgment, execution, claim or demand whatsoever
arising out of the construction, leasing, operation or maintenance
of the grantee's equipment, facilities and services specified by this
part, whether or not any act or omission complained of is authorized,
allowed and/or prohibited by this part and the rights granted hereunder.
2.
Insurance.
A.
Grantee shall obtain and maintain in full force and effect throughout
the term of this part insurance with an insurance company licensed
to do business and doing business in the Commonwealth of Pennsylvania
and acceptable to the Township. All companies will be required to
be rated A-VII or better by A.M. Best or A or better by Standard and
Poor. Grantee shall provide Township with proof of such insurance
so required.
B.
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 bodily injury and property damages
$2,000,000 per occurrence or its equivalent
| ||
|
•
|
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:
|
Combined single limit of bodily injury and property damage $1,000,000
per occurrence or its equivalent
| ||
|
•
|
Owned/leased vehicles
| |||
|
•
|
Nonowned vehicles
| |||
|
•
|
Hired vehicles
| |||
C.
The Township shall receive, without expense, copies of certificates
of insurance evidencing coverage stated above.
D.
Grantee agrees that with respect to the above-required insurance,
all insurance certificates will contain the following required provisions:
(1)
Name the Township and its officers, employees, board members
and elected and appointed officials as additional insured parties
(as the interests of each insured may appear) as to all applicable
coverage (except workers' compensation).
(2)
Provide for 60 days' written notice to the Township for cancellation,
nonrenewal or material change.
(3)
Provide that all provisions of this part 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.
E.
Companies issuing the insurance policies shall have no recourse against
the Township for payment of any premiums or assessments, which all
are set at the sole risk of the grantee. Insurance policies obtained
by grantee shall provide that the issuing company waives all right
of recovery by way of subrogation against the Township in connection
with any damage covered by these policies.
3.
Bond.
A.
Grantee shall obtain and maintain, at its sole cost and expense,
and file with the Township a corporate surety bond with a surety company
authorized to do business in the Commonwealth of Pennsylvania in the
amount of 15% of grantee's estimated costs to secure grantee's performance
of its obligations and faithful adherence to all requirements of this
part.
B.
No action, proceeding or exercise of a right with respect to such
bond shall affect the Township's rights to demand full and faithful
performance under this part or limit grantee's liability for damages.
C.
The bond shall contain the following endorsement: "It is hereby understood
and agreed that this bond may not be cancelled by the surety nor any
intention not to renew be exercised by the surety until 60 days after
receipt by the Township of Lower Southampton, by registered mail,
of written notice of such intent."
4.
All expenses of the above-noted insurance and bond shall be paid
by the grantee.
5.
The insurance policies mentioned herein shall contain an endorsement
stating the following:
|
"Should any policies of insurance be cancelled or coverages
be reduced before the expiration date of said policies of insurance
the issuer shall deliver 60 days' advance written notice to the Township."
|
6.
Neither the provisions of this part 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 this part
issued hereunder and/or for damages, either to the full amount of
the bond or otherwise.
[Ord. 516, 9/13/2006, § 8; as amended by Ord. 532,
9/10/2008]
1.
General. In addition to all other rights, remedies and powers reserved
and/or retained by the Township under this part or otherwise, the
Township reserves the right to bring a civil action to collect any
sums due to Township by grantee and/or forfeit or revoke all privileges
of grantee under this part in the event of willful or repeated violation
of this part.
2.
Penalties. Any person who commits a violation of this part shall,
upon being found liable in a civil enforcement proceeding commenced
by the Township, pay a fine of not less than $100 nor more than $600
plus all court costs, including reasonable attorneys' fees incurred
by the Township. A separate offense shall arise for each day or portion
thereof in which a violation is found to exist or for each section
of this part which is found to have been violated. In addition, the
Township also may enforce this part by an action brought in equity.
[Ord. 516, 9/13/2006, § 9]
1.
Compliance with applicable laws and ordinances. The grantee shall
at all times be subject to the exercise of the police power of the
Township. The grantee shall comply with all lawful ordinances, codes,
laws, rules and regulations of the Township of Lower Southampton,
County of Bucks, Commonwealth of Pennsylvania, and the United States
of America which are now in effect or hereafter enacted.
2.
Conflict. Whenever the requirements of this part are in conflict
with other requirements of the ordinances of the Township of Lower
Southampton, the most restrictive or those imposing the highest standards
shall govern. Privileges granted by this part do not constitute a
waiver or impairment of the rights of the Township at law or equity
now or henceforth existing to proceed versus grantee for enforcement
of this part or violation of this part or ordinances of the Township.
