[Ord. 261, 5/10/2005, § 1]
1.
This Part shall be known as the "Dublin Borough Rights-of-Way Ordinance."
2.
AFFILIATE
BOROUGH
CABLE SERVICE
COMMUNICATIONS ACT
EQUIPMENT
EXEMPT
FACILITY
GRANTEE
GROSS REVENUE
NON-EXEMPT
PERSON
PUBLIC WAY
SERVICE AREA
Terms. For the purpose of this Part, the following terms, phrases,
words and abbreviations shall have the meanings as described 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.
The Borough of Dublin, 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 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 non-exempt 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 non-exclusive privilege to occupy or
use a public way to provide non-exempt 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 non-exempt services to persons having a residence or place of business
in the service area. "Gross revenue" shall include amounts earned,
regardless: (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.
(1) 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 (2) provides or seeks to provide one or more non-exempt 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.
[Ord. 261, 5/10/2005, § 2]
Each person, other than on a transitory basis, who occupies
or uses or seeks to occupy or use a public way to provide a non-exempt
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 of
Dublin. Registration is accomplished by filing with the Borough a
completed provider certification in the form shown at Appendix 21-3-A
to this Part.
[Ord. 261, 5/10/2005, § 3]
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 non-exclusive
privilege to construct, repair, remove, relocate or perform any work
on or use any facilities or any part thereof the public ways within
the service area and to occupy or use the public ways for the purpose
of providing non-exempt 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 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.
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 paragraphs .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 Borough under separate legislation of the Borough.
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. 261, 5/10/2005, § 4]
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 or to such disturbance.
If grantee excavates the surface of any public way, grantee shall
be responsible for restoration of the public way and its surface within
the area affected by the excavation. The Borough reserves the right,
after providing notice to grantee, to remove and or repair any work
done by grantee which is inadequate. The reasonable cost thereof,
including the cost of inspection and supervision, shall be paid by
the grantee. All excavations made by grantee in the public way shall
be properly safeguarded for the prevention of accidents.
3.
Trees and Shrubbery. The grantee shall notify Borough and all affected
property owners regarding grantee's need to trim trees or other
natural growth upon and overhanging public ways so as to prevent the
branches of such trees from coming in contact with its facilities
or equipment. Trimming shall be limited to the area required to clear
its facilities or equipment.
4.
Safety Requirements. All such work in the public ways shall be performed
in accordance with applicable safety code, and technical requirements.
5.
Maps. Prior to beginning any construction of facilities, 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 faculties, 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 form, as well as in
an electronic format for placement on the Borough's GIS system.
Annually thereafter, granter shall provide a map to the Borough showing
the location of grantee's facilities in the public ways on a
scale of 150 feet per inch or whatever standard scale the Borough
adopts for general use.
6.
Excavations. Grantee may make excavations in public ways for any
facility subject to obtaining excavation permits from the Borough.
Prior to doing such work, grantee must apply for, and obtain, appropriate
permits from the Borough, and give appropriate notices to any other
licensees and/or permittees of the Borough, and/or other units of
government owning or maintaining facilities which may be affected
by the proposed excavation.
7.
Reservation of Borough Public Ways. Nothing in this Part 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 grantee's facilities or equipment
interferes with the construction or repair of any street or public
improvement, including construction, repair or removal of a sewer
or water main, the grantee's facilities or equipment shall be
removed or replaced in the manner the respective Borough or other
agency of government or municipal authority shall direct. Any and
all such removal or replacement shall be at the expense of the grantee.
Should grantee fail to remove, adjust or relocate its facilities by
the date established by the Borough or other agency of government
or municipal authority, the Borough or other agency of government
or municipal authority may cause and/or effect such removal, adjustment
or relocation, and the expense thereof shall be paid by grantee, including
all reasonable costs and expenses incurred by the Borough or other
agency of government or municipal authority due to grantee's
delay.
[Ord. 261, 5/10/2005, § 5]
1.
In consideration of occupying or using the public ways under this
Part, grantee shall pay to Borough 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 Borough no later than 45 days after the expiration
of the calendar quarter for which payment is due. Grantee shall file
with the Borough a complete and accurate statement, under notarial
seal, at the end of each calendar year quarter certified as true and
correct by a representative of grantee, authorized to make such certification,
explaining how the payment was calculated. In connection with the
rental payment due on February 14, the grantee shall also submit to
the Borough, on that date or no later than six 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 Borough and its authorized representatives for examination at
a location in Bucks County, Pennsylvania, at any time during regular
business hours on 10 days' prior written notice and from time
to time for the purpose of verifying or identifying rentals owed to
the Borough grantee shall exercise its best efforts to obtain financial
records of affiliates for the Borough for the purpose of verifying
the accuracy of the rental payments. Borough 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 Borough as a result of the examination and computation
shall be paid within 30 days following written notice to grantee by
the Borough, which notice shall include a copy of the examination
report, In the event that said examination determines that funds are
owed to the Borough in an amount in excess of 2%, the cost of said
examination shall be borne by the grantee and reimbursed to Borough
within 30 days following written notice to grantee.
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 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.
5.
The grantee shall reimburse the Borough in an amount equal to the
reasonable costs and expenses which the Borough incurs for the services
of third parties (including, but not limited to, attorneys and other
consultants) in connection with any renegotiation, transfer, amendment
or other modification of an application or grant hereunder (where
such action is specifically initiated by the grantee or an affiliated
person at such time and in such manner as the Borough Manager shall
specify. Payments of such costs and expenses shall not be deemed to
be "rental fees," and such payments shall not be deemed to be payments-in-kind
or involuntary payments chargeable against any other compensation
to be paid to the Borough by the grantee.
[Ord. 261, 5/10/2005, § 6]
1.
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 Part, whether or not any act or omission complained of is
authorized, allowed and/or prohibited by the ordinance and the rights
granted thereunder.
2.
To the fullest extent permitted by law, the grantee shall, at its
sole cost and expense, fully indemnify, defend and hold harmless the
Borough, its officers, public officials, boards and commissions, agents
and employees from and against any and all lawsuits, claims (including
without limitation worker's compensation claims against the Borough
or others), causes of action, actions, liability and judgments for
injury or damages (including, but not limited to, expenses for reasonable
legal fees and disbursements assumed by the Borough in connection
therewith):
A.
To persons or property, in any way arising out of or through the
acts or omissions of the grantee, its subcontractors, agents or employees.
B.
Arising out of any claim for invasion of the right of privacy, for
defamation of any person, firm or corporation, or the violation of
infringement of any copyright, trademark, trade name, service mark
or patent, or any other right of any person, firm or corporation,
but excluding claims arising out of or related to Borough programming
or programming for which the grantee is not legally responsible.
C.
Arising out of the grantee's failure to comply with the provisions
of any federal, state or local statute, ordinances or regulation applicable
to the grantee in its business hereunder.
D.
Arising out of any action or claim related to obscenity, indecency
or sexually explicit programming deemed to be under the control of
the grantee.
3.
The foregoing indemnity is conditioned upon the following: The Borough
shall give the grantee prompt notice of any claim or the commencement
of any action, suit or other proceeding covered by the provisions
of this section Nothing herein shall be deemed to prevent the Borough
from cooperating with the grantee and participating in the defense
of any litigation by its own counsel at its own costs and expenses.
4.
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 Borough. All companies will be required to be
rated A-VII or better by A.M. Best or A better by Standard and Poors.
Grantee shall provide Borough with proof of such insurance so required.
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
| |||
|---|---|---|---|---|
|
(1)
|
Workers' compensation and statutory employers liability
|
$100,000/$500,000/$100,000
| ||
|
(2)
|
Commercial general (public) liability to include coverage for
the following where the exposure exists:
| |||
|
(a)
|
Premises operations
| |||
|
(b)
|
Independent contractors
|
Combined single limit for bodily injury and property damages
$2,000,000 per occurrence or its equivalent
| ||
|
(c)
|
Products/completed operations
| |||
|
(d)
|
Personal Injury
| |||
|
(e)
|
Contractual liability
| |||
|
(f)
|
Explosion, collapse and underground property damage
| |||
|
(3)
|
Comprehensive vehicle insurance coverage for loading and unloading
hazards, for:
| |||
|
(a)
|
Owned/leased vehicles
|
Combined single limit of bodily injury and property damage $1,000,000
per occurrence or its equivalent
| ||
|
(b)
|
Non-owned vehicles
| |||
|
(c)
|
Hired vehicles
| |||
C.
The Borough 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 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).
(2)
Provide for 60 days' written notice to the Borough for
cancellation, non-renewal, 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 Borough for payment of any premium or assessments which all are
set at the sole risk of the grantee. Insurance policies obtained grantee
shall provide that the issuing company waives all right of recovery
by way of subrogation on against the Borough in connection with any
damage covered by these policies.
5.
Grantee shall obtain and maintain, at its sole cost and expense,
and file with the Borough a corporate surety bond with a surety company
authorized to do business in the Commonwealth of Pennsylvania in the
amount of 15% of grantee's estimated costs to secure grantee's
performance of its obligations and faithful adherence to all requirements
of this Part.
A.
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 Part or limit 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 cancelled by the surety nor any
intention not to renew be exercised by the surety until 60 days after
receipt by the Borough of Dublin, by registered mail, of written notice
of such intent."
6.
All expenses of the above-noted insurance and bond shall be paid
by the grantee.
7.
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 Dublin Borough.
8.
Neither the provisions of this Part 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.
[Ord. 261, 5/10/2005, § 7]
1.
General. In addition to all other rights, remedies and powers reserved
and/or retained by the Borough under this Part 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 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 Borough, pay a fine of $600 plus all court costs,
including reasonable attorneys' fees incurred by the Borough.
A separate offense all arise for each day or portion thereof in which
a violation is found to exist or for each section this Part which
is found to have been violated. In addition, the Borough also may
enforce this Part by an action brought in equity.
[Ord. 261, 5/10/2005, § 8]
1.
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.
2.
Conflict. Whenever the requirements of the ordinances are in conflict
with other requirements of the ordinances of the Borough of Dublin,
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 Borough at law or equity now or
henceforth existing to proceed versus grantee for enforcement of the
ordinance or violation of this Part of the Borough.
