[Ord. 2005-08-02, 8/8/2005]
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:
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 the grantee and/or is controlled by or is under
common control with such person or entity.
The same meaning as used in the 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.
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 light pole, 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 Part and
who is in continuous compliance with this Part.
All gross revenue of the grantee or any affiliate of the
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 the 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 the 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 the grantee and an
affiliate but which sum is included in gross revenue due solely to
a transfer of funds between the grantee and the affiliate shall not
be counted for purposes of determining gross revenue.
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
who or 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, 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 New Britain, County of Bucks, Commonwealth
of Pennsylvania, or the lawful successor, transferee, or assignee
thereof.
[Ord. 2005-08-02, 8/8/2005]
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 in Appendix A to this Part.[1]
[1]
Editor's Note: Appendix A is included as an attachment to this chapter.
[Ord. 2005-08-02, 8/8/2005; as amended by Ord. 2013-09-01,
9/9/2013, § I]
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 the 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 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.
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, if all facilities are placed underground. No above-ground facilities are permitted unless in full compliance with the Township's Zoning Ordinance [Chapter 27] provisions with respect to telecommunication uses.
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.
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. 2005-08-02, 8/8/2005]
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 the grantee's
construction, operation, and/or maintenance of its facilities and
equipment, there occurs a disturbance of any public way by the grantee,
the grantee shall, at its expense, replace and restore such public
way to a condition which existed immediately prior to such disturbance.
If the 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 Township 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 the grantee in the
public way shall be properly safeguarded for the prevention of accidents.
3.
Trees and Shrubbery. The grantee shall notify the Township 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.
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, the grantee
shall provide the Township 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 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, 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.
6.
Excavations. The grantee may make excavations in public ways for
any facility subject to obtaining excavation permits from the Township.
Prior to doing such work, the 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 the 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 the grantee,
including all reasonable costs and expenses incurred by the Township
or other agency of government or municipal authority due to the grantee's
delay.
[Ord. 2005-08-02, 8/8/2005]
1.
Rental.
A.
In consideration of occupying or using the public ways under this
Part, the grantee shall pay to Township 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 Township no later than 45 days after the expiration
of the calendar quarter for which payment is due. The 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 the 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.
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
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.
The 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. The 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 the Township
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.
[Ord. 2005-08-02, 8/8/2005]
1.
The 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 the Part and the rights granted
thereunder.
2.
Insurance.
A.
The 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-VH or better by A.M. Best or A better by Standard and Poors.
The grantee shall provide the Township with proof of such insurance
so required.
B.
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
| ||
|---|---|---|---|
|
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
|
Combined single limit for bodily injury and property damages
of $2,000,000 per occurrence or its equivalent
| ||
|
Independent contractors
| |||
|
Products/completed operations
| |||
|
Personal injury
| |||
|
Contractual liability
| |||
|
Explosion, collapse and underground property damage
| |||
|
Comprehensive vehicle insurance coverage for loading and unloading
hazards, for:
| |||
|
Owned/leased vehicles
|
Combined single limit of bodily injury and property damages
of $1,000,000 per occurrence or its equivalent
| ||
|
Non-owned vehicles
| |||
|
Hired vehicles
| |||
C.
The Township shall receive, without expense, copies of certificates
of insurance evidencing coverage stated above.
D.
The 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 worker's compensation);
(2)
Provide for 60 days' written notice to the Township for
cancellation, non-renewal, or material change;
(3)
Provide that all provisions of this Part concerning liability,
duty, and standards of care, including the indemnity provisions, shall
be under-written 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 the 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.
The 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 the grantee's estimated costs to secure the
grantee's performance of its obligations and faithful adherence
to all requirements of this Part.
A.
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 nor limit the grantee's liability
for damages.
B.
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 New Britain, 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
and/or for damages, either to the full amount of the bond or otherwise.
[Ord. 2005-08-02, 8/8/2005]
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 the Township by the grantee and/or forfeit or revoke all
privileges of the grantee under this Part in the event of willful
or repeated violation of this Part.
2.
Penalties. Any person which commits or suffers the violation of this
Part 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 attorneys' fees, incurred by the Township.
A separate offense shall arise for each day or portion thereof on
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. 2005-08-02, 8/8/2005]
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, 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 New Britain,
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 the grantee for enforcement
of this Part or violation of this Part or ordinances of the Township.
