[HISTORY: Adopted by the Council of the Borough of West Chester 3-21-2001
by Ord. No. 4-2001. Amendments noted where applicable.]
GENERAL REFERENCES
Wireless communications facilities — See Ch. 112, Art. XVI.
This chapter is enacted pursuant to the authority in the Borough Code,
53 P.S. § 46202, which authorizes the borough to regulate the use
of the public rights-of-way. It is the intent of this chapter to provide for
and specify the means by which a person or entity, not including a public
utility, may obtain a nonexclusive, revocable license to install communications,
telecommunications or other utility systems, including, but not limited to,
antennas, poles, boxes, wires and radios in the public rights-of-way in the
borough. This chapter will specify the installation procedures and the technical
construction standards which must be complied with when installing communications,
telecommunications or other utility systems in the public rights-of-way. The
chapter shall also impose a franchise fee for the use of the public rights-of-way
by entities which are not a Public Utility and require the franchisee to obtain
adequate liability insurance which names the borough as an additional insured
and to indemnify the borough from any and all claims arising out of the franchisee's
use of the public rights-of-way. The ordinance will also establish regulations
for the transfer, renewal and termination of the franchise.
A.
Throughout this chapter, the following terms, phrases,
words, and abbreviations shall have the meanings given herein, unless otherwise
expressly stated. When not inconsistent with the context, words used in the
present tense include the future tense; words in the singular number include
the plural number, and words in the plural number include the singular number;
and, the masculine gender includes the feminine gender. The words "shall"
and "will" are mandatory, and "may" is permissive. Undefined words shall be
given their common and ordinary meaning.
B.
BOROUGH
COMMUNICATIONS SYSTEM
COUNCIL
EMERGENCY
FCC
FRANCHISE
FRANCHISE AGREEMENT
FRANCHISE AREA
FRANCHISEE
FRANCHISE FEE
PERSON
PUBLIC RIGHTS-OF-WAY
PUBLIC UTILITY
SALE
SERVICE
TELECOMMUNICATIONS SYSTEM
TRANSFER
UTILITY SYSTEM
As defined in this chapter, the following terms shall
have the meanings indicated:
The Borough of West Chester.
The communications network to be constructed and installed in the
public rights-of-way in order to send and receive messages, including all
facilities, equipment, devices and appurtenances which are used by a franchisee
to provide a communications service.
Council of the Borough of West Chester.
Any condition which, in the opinion of the borough, poses an immediate
threat to life, health or property caused by any natural or man-made disaster,
including, but not limited to, storms, floods, fire, explosions, accidents,
major water main breaks or spills of hazardous materials.
The Federal Communications Commission, its designee, or any successor
thereto.
The nonexclusive rights, whether by initial authorization or renewal
thereof, granted pursuant to this chapter to construct, operate, and maintain
a communications, telecommunications or other utility system in, upon, above,
along, across and over the public rights-of-way within all or a specified
area of the borough. Any such authorization, in whatever form granted, shall
not mean or include any license or permit required for the privilege of transacting
and carrying on a business within the borough as required by the ordinances
and laws of the borough.
A contract entered into in accordance with the provisions of this
chapter between the borough and a franchisee that sets forth, subject to this
chapter, the terms and conditions under which the franchise will be exercised.
The entire borough, or such portions thereof, for which a franchise
is granted under the authority of this chapter. If not otherwise stated in
the franchise agreement, the franchise area shall be the corporate limits
of the borough, including all territories thereafter annexed to the borough.
The natural person(s), partnership(s), domestic or foreign corporation(s),
association(s), joint venture(s), organization(s) or other legal entity and
its/their lawful successor, transferee or assignee which have been legally
granted a franchise by the borough.
The consideration that the franchisee must pay to the borough for
the use of the public rights-of-way as agreed to between the borough and the
franchisee pursuant to the terms of the franchise agreement.
An individual, partnership, association, organization, corporation
or other legal entity and any lawful successor or transferee of said individual,
partnership, association, organization, corporation or legal entity.
The surface, the air space above the surface and the area below the
surface of any public street, highway, lane, path, alley, sidewalk, boulevard,
drive, bridge, tunnel, park, parkway, waterway, utility easement or other
public right-of-way, now or hereafter owned, dedicated to, held, approved
or controlled by the borough which shall entitle the borough and the franchisee
to the use thereof for the purpose of installing and maintaining the franchisee's
communications, telecommunications or other utility system. No reference herein
or in any franchise to the "public right-of-way" shall be deemed to be a representation
of or guarantee by the borough that its interest or other right to control
the use of such property is sufficient to permit the borough's use for such
purposes. The franchisee shall be deemed to gain only such rights as the borough
may have the undisputed right and power to authorize by its issuance of a
franchise to the franchisee.
Any business activity regulated by a governmental agency in which
the business is required by law to: serve all members of the public upon reasonable
request; charge just and reasonable rates subject to review by a regulatory
body; file tariffs specifying all of its charges; and modify or discontinue
its service only with the approval of the regulatory agency.
Includes any sale, exchange or barter transaction.
The provision or offering of telecommunications service as defined
in 47 U.S.C. § 153(46), either directly or as a carrier for others,
to persons, within the borough by means of the telecommunications system.
Specifically excluded are telecommunications services subject to regulation
under the Cable Act of 1984, 47 U.S.C. § 521 et seq, as amended.
The telecommunications network to be constructed and installed in
the public rights-of-way, including all network facilities, such as cables,
conduits, access manholes, rights-of-way, equipment, devices and appurtenances
which are used by a franchisee to provide a telecommunications service.
The disposal, voluntarily or involuntarily, by a franchisee, directly
or indirectly, by gift, assignment, voluntary sale, merger, consolidation,
or otherwise of 5% or more at one time of the ownership or controlling interest
in the communications system, telecommunications system or other utility system
or 20% percent cumulatively over the term of the franchise of such interest
to a corporation, partnership, limited partnership, trust or association,
person or group of persons acting in concert, or other legal entity. Internal
reorganization in which ultimate control of the franchisee does not change
shall not constitute transfer for purpose of this chapter.
Any structures, equipment, facilities, devices and appurtenances
to be constructed and installed in the public rights-of-way in order to provide
a utility service of any kind to residents in the borough.
A.
Franchise required for use of public rights-of-way by
entities which are not public utilities.
(1)
Before a communications system, telecommunications system
or other utility system may be installed in the public rights-of-way in the
borough by an entity or person which is not regulated as a public utility
and is otherwise exempt from any tax or fee imposed by the borough, the borough
must grant a franchise and enter a franchise agreement pursuant to and in
compliance with the terms and conditions of this chapter.
(2)
This chapter may be amended from time to time, and in
no event shall this chapter be considered a contract between the borough and
a franchisee such that the borough would be prohibited from amending any provision
hereof. No such amendment shall be applied retroactively to materially impair
preexisting contractual agreements entered into between the borough and a
franchisee.
B.
Application for franchise.
(1)
A written application shall be filed with the borough
for the grant of an initial franchise or a modification of a franchise agreement
pursuant to this chapter or a franchise agreement. An applicant has the burden
to demonstrate in its application compliance with all requirements of this
chapter and all applicable laws.
(2)
To be acceptable for filing, a signed original of the
application shall be submitted together with five copies. The application
must be accompanied by the required application filing fee as established
by resolution of the Council. All applications shall include the names and
addresses of persons authorized to act on behalf of the applicant with respect
to the application.
(3)
All applications accepted for filing shall be made available
by the borough for public inspection.
(4)
The application shall include the following information:
(a)
Name and address of the applicant and identification
of the ownership and control of the applicant.
(b)
A demonstration of the applicant's technical ability
to construct and/or operate the proposed communications system, telecommunications
system, or utility system, including identification of key personnel.
(c)
A statement prepared by a certified public accountant
regarding the applicant's financial ability to complete the construction and
operation of the communications system, telecommunications system or utility
system proposed.
(d)
A list of communities in which the applicant or any of
its principals have, or have had a franchise or license or any interest therein.
(e)
Identification of the area of the borough to be served
by the proposed communications system, telecommunications system, or utility
system, including a description of the proposed franchise area's boundaries.
(f)
A detailed description and plan showing the physical
facilities and equipment proposed to be installed in the public rights-of-way.
(g)
Where applicable, a description of the construction of
the proposed communications system, telecommunications system or utility system,
including its location and proposed construction schedule.
(h)
Any other information as may be reasonably necessary
to demonstrate compliance with the requirements of this chapter.
(i)
An affidavit or declaration of the applicant or authorized
officer certifying the truth and accuracy of the information in the application,
acknowledging the enforceability of application commitments and certifying
that the proposal meets all federal and state law requirements.
(5)
In evaluating an application for an initial franchise
seeking authority to install a communications system, telecommunications system,
or other utility system, the borough shall consider, among other things, whether
issuance of a franchise is warranted in the public interest considering the
immediate and future effect on the public rights-of-way and private property
which would be used by the communications system, telecommunications system
or utility system, including the extent to which installation or maintenance
as planned would require replacement of property or involve disruption of
property and the public rights-of-way.
(6)
If the borough finds that it is in the public interest
to issue a franchise considering the factors set forth above, it shall issue
a franchise, subject to the applicant's entry into an appropriate franchise
agreement. If the borough denies a franchise, it shall issue a written decision
explaining why the franchise was denied. Prior to deciding whether to issue
or not to issue a franchise, the borough may hold one or more public hearings
or implement other procedures under which comments from the public on an applicant's
proposal may be received. The borough also may grant or deny a request for
a franchise based on its review of an application without further proceedings
and may reject any application which is incomplete. This chapter is not intended
and shall not be interpreted to grant any applicant or existing franchisee
standing to challenge the issuance of a franchise to another.
(7)
If the borough grants a franchise subject to the applicant's
entry into a franchise agreement, the borough and the franchisee shall agree
on the terms of a franchise agreement within 30 calendar days from the date
of the borough resolution granting the franchise. This period may be extended
for good cause by the borough. If agreement is not reached with the borough
within 30 calendar days from the date of the borough resolution granting the
franchise, or if the period is not extended by the borough, the franchise
will be null and void without further action by the borough. The borough shall
approve or disapprove the proposed franchise agreement by resolution, or may
direct that it be subject to further negotiation. Once a franchise agreement
has been accepted and executed by the borough and a franchisee, such franchise
agreement shall constitute a contract between the franchisee and the borough,
and the terms, conditions, and provisions of such franchise agreement, subject
to this chapter and all other duly enacted and applicable laws, shall define
the rights and obligations of the franchise and the borough relating to the
franchise.
C.
Applications for modification of franchises. An application
for modification of a franchise agreement shall include, at minimum, the following
information:
(1)
The specific modification requested;
(2)
The justification for the requested modification and
the financial impact on the applicant if the modification is approved or disapproved;
(3)
Any other information that the applicant believes is
necessary for the borough to make an informed determination on the application
for modification; and
(4)
An affidavit or declaration of the applicant or authorized
officer certifying the truth and accuracy of the information in the application,
and certifying that the application is consistent with all federal and state
law requirements.
D.
Filing fees. To be acceptable for filing, an application
for the grant or modification of a franchise submitted after the effective
date of this chapter shall be accompanied by a filing fee as established by
resolution of the Council, not to exceed $500.
E.
Authority for use of street.
(1)
For the purpose of constructing, operating and maintaining
a communications system, telecommunications system or other utility system
in the borough, a franchisee may erect, install, construct, repair, replace,
relocate, reconstruct and retain in, on, over, under, upon, across and along
the streets within the borough such lines, cable, conductors, ducts, conduits,
vaults, manholes, amplifiers, appliances, pedestals, attachments, and other
property and equipment as are necessary and appurtenant to the operation of
the communications system, telecommunications system or utility system.
(2)
The franchisee shall construct and maintain the communications
system, telecommunications system or utility system so as not to interfere
with other uses of the public rights-of-way and streets. The franchisee shall
endeavor to make use of existing poles and other facilities available to franchisee
where feasible. The franchisee shall notify the borough, in writing, at least
10 days and shall publicize proposed construction work, prior to commencement
of that work.
F.
Nonexclusive franchise. A franchise granted pursuant
to this chapter shall be nonexclusive. By entering into a franchise agreement
with the borough under this chapter, the franchisee automatically acknowledges
the borough's right to grant additional franchises upon such terms and conditions
as the Council deems appropriate.
G.
Franchise term. A franchise shall commence upon written
acceptance by the franchisee, as required by this chapter, and shall remain
in full force and effect for a period agreed to by the borough and franchisee
in a franchise agreement. The term of a franchise shall not exceed 15 years
and may not exceed five years unless the franchise agreement contains clear
and enforceable provisions for regulating upgrades, improving customer service
requirements and making such other requirements as may be necessary in light
of advancements in technology, at minimum intervals of not greater than every
five years.
H.
Area covered. A franchise granted under this chapter
shall include such portions within the territorial borders of the borough
as the Council shall approve in the franchise agreement.
I.
Police power. A franchisee's rights are subject to the
police powers of the borough to adopt and enforce ordinances necessary for
the health, safety and welfare of the public. A franchisee shall comply with
all applicable general laws and ordinances enacted by the borough pursuant
to that power.
A.
Construction standards.
(1)
All construction, operation, maintenance and repair of
the communications system, telecommunications system or utility system shall
be in accordance with all applicable sections of the Occupational Safety and
Health Act of 1970, as amended, as well as all state and local codes where
applicable.
(2)
All installation of electronic equipment and appurtenant
facilities shall be of a permanent nature, durable and installed in accordance
with the provisions of the National Electric Safety Code and the National
Electrical Code, as amended, the FCC, other applicable federal, state or local
laws, codes and regulations, as the same may be from time to time amended
or adopted.
(3)
The franchisee's electronic equipment and appurtenant
facilities which form a part of its communications system, telecommunications
system or utility system shall be installed, located, erected, constructed,
reconstructed, replaced, removed, repaired, maintained and operated in accordance
with good and accepted engineering practices, performed by experienced maintenance
and construction personnel, so as not to endanger or interfere with any improvement(s)
the borough shall deem appropriate to make to its streets and public rights-of-way
or to hinder or obstruct pedestrian or vehicular traffic or to interfere in
any manner with the rights of any property owner.
(4)
The franchisee shall at all times employ ordinary care
and shall install and maintain in use commonly accepted methods and devices
preventing failures and accidents which are likely to cause damage, injury
or nuisance to the public.
(5)
All transmission and distribution structures, poles,
wires, lines and equipment erected by the franchisee within the borough shall
be so located as not to interfere with streets, legal rights-of-way or legal
rights of any individual property owner. The borough shall retain sole power
and authority over the streets dedicated to or owned by it in connection with
the location of any communications system, telecommunications system or utility
system facilities therein or thereon.
(6)
In the case of disturbance of any street or paved area,
the franchisee shall secure a street opening permit from the borough prior
to any such disturbance and shall, at its own cost and expense, in any manner
approved by the borough or state, as applicable, replace, repair and restore
such street or pavement area in accordance with borough or state specifications,
as applicable.
B.
Construction codes inspections.
(1)
The franchisee shall strictly adhere to all building,
highway and zoning codes currently or hereafter applicable to construction,
operation or maintenance of the communications system, telecommunications
system or utility system in the borough.
(2)
The borough shall have the right to inspect all construction
or installation work performed pursuant to the provisions of a franchise,
and to make such tests as it shall find necessary to ensure compliance with
the terms of any such franchise and the applicable provisions of local, state
and federal law.
C.
Construction upgrades. If, at any time during the period
of a franchise, the borough shall lawfully construct, reconstruct or relocate
any street or public right-of-way, or alter or change the grade of any street,
or repair, modify or relocate any sanitary or storm sewers, water lines or
other public facilities, the franchisee, upon reasonable notice by the borough
(not exceeding such time as determined by the then existing circumstances)
shall remove, relay, abandon or relocate its poles, wires, cables, underground
conduits, manholes and other fixtures at its own expense.
D.
Use of existing poles. The franchisee shall not erect,
for any reason, any pole on or along any street in an existing aerial utility
system without advance written notice to and approval of the borough. The
franchisee shall exercise its best efforts to negotiate the lease of pole
space and facilities from existing pole owners for all aerial construction.
E.
Installation procedure.
(1)
Construction upgrades or new construction of streets,
utilities and other public facilities, when done by the borough, shall be
undertaken and completed to the extent feasible, in such a manner as to not
obstruct, injure or prevent the free use and operation by the franchisee of
the poles, wires, conduits, conductors, pipes or apparatus forming a part
of its communications system, telecommunications system or utility system.
(2)
If any of the franchisee's properties interfere with
the construction, reconstruction, relocation, maintenance or repair of any
streets, rights-of-way or other borough public improvements, whether it be
the construction, repair, maintenance, removal, or relocation of a sewer,
public sidewalk or water main, street or any other improvement (the "project"),
the borough shall give 30 days' prior written notice to the franchisee, and
all such poles, wires, conduits and other appliances and facilities shall
be secured, removed or replaced by the franchisee, at its sole cost and expense,
in such manner as shall be directed by the borough and shall not interfere
with the borough's project. Should, however, any utility company be reimbursed
for relocation of its facilities as part of the same project, the franchisee
shall be reimbursed by the borough upon the same terms and conditions as the
utilities.
A.
Open books and records. The borough shall have the right
to inspect and copy, upon 20 days' written notice, at any time during normal
business hours all books, receipts, maps, plans, financial statements, contracts
and other like material of the franchisee (the records) which are reasonably
necessary to monitor compliance with the terms of this chapter or the franchise
agreement. The written notice for inspection request shall include the purpose
for the inspection and a description of the records sought to be inspected
to the extent known.
B.
Maps. The franchisee shall maintain with the borough
a current map or set of maps, drawn to scale, showing the communications system,
telecommunications system or utility system and all equipment installed or
in place in the public rights-of-way or streets.
A.
Finding. The borough finds that the streets and public
rights-of-way of the county, state and borough are valuable public property
acquired and maintained by the county, state, and borough at great expense
to the taxpayers. The borough further finds that the grant of a franchise
to use such streets and public rights-of-way is a valuable property right
without which a franchisee would be required to invest substantial capital.
B.
Payment to borough. The administration of this chapter
and the franchise imposes upon the borough substantial and additional regulatory
responsibilities and expense. Accordingly, each franchisee receiving the approval
of the borough for the grant of a franchise shall pay to the borough a franchise
fee agreed upon by Council and the franchisee when negotiating the franchise
agreement.
(1)
The franchise fee is in addition to taxes and payments
that the franchisee may be required to pay under any federal, state or local
law and to any tax, fee or assessment imposed by utilities and cable operators
for the use of their services, facilities and equipment.
(2)
Payment of the franchise fee made by the franchisee to
the borough is not and shall not be considered in the nature of a tax.
(3)
Failure to make required payment. In the event any franchise
payment or recomputation amount is not made on or before the date specified
herein, the franchisee shall pay additional compensation and interest charges
computed from such due date, at the annual rate equal to the commercial prime
interest rate of the borough's primary depository bank during the period such
unpaid amount is owed.
(4)
Payments to be made quarterly. The franchise fee and
any other costs assessed by the borough against the franchisee shall be paid
quarterly to the borough and shall commence as of the effective date of the
franchise, unless otherwise specified in the franchise agreement. Said quarterly
payments shall be made to the borough no later than 45 days following the
end of each calendar quarter. Quarterly computation dates are the last days
of the months of March, June, September and December.
(5)
The borough right of inspection. The borough shall have
the right to inspect and copy, exclusive of proprietary information, the franchisee's
records and the right to audit and to recompute any amounts determined to
be payable pursuant to this chapter for a period of four years from the date
of payment. Audits shall be at the expense of the borough unless the audit
discloses an underpayment in excess of 5%, in which case the costs of the
audit shall be borne by the franchisee as a cost incidental to the enforcement
of the franchise agreement. Any additional amounts due to the borough as a
result of the audit shall be paid within 30 days following written notice
to the franchisee by the borough of the underpayment, which notice shall include
a copy of the audit report, unless written notice of disagreement is filed
by the franchisee with the borough within such time period. In the case of
a dispute, the issue shall be resolved through binding arbitration in accordance
with the procedures of the American Arbitration Association.
A.
Borough not liable for damages and defects. The borough
and the Council shall not be liable for any injury, damage, costs, either
direct or consequential, to any person or property arising from the use, operation,
condition or maintenance of the franchisee's communications system, telecommunications
system or utility system, whether arising from the operation of the communications
system, telecommunications system or utility system or its location within
any street or public rights-of-way.
B.
Franchisee's indemnification of borough. The franchisee
shall, at its sole' cost and expense, indemnify, hold harmless and defend
the borough, the Council and the borough's other officials, boards, commissions,
agents and employees against any and all claims, suits, causes of action,
proceedings and judgments for damages to persons or to property, or equitable
relief arising out of the construction, maintenance or operation of its communications
system, telecommunications system or utility system, the conduct of the franchisee's
business in the borough or any claim, cause of action, proceeding, suit or
judgment arising out of the franchisee's enjoyment or exercise of a franchise
granted hereunder, regardless of whether the act or omission complained of
is authorized, allowed or prohibited by this chapter or a franchise agreement.
This provision includes, but is not limited to, the borough's reasonable attorneys'
fees incurred in defending against any such claim, suit or proceeding.
A.
A franchisee shall maintain, and by its acceptance of a franchise issued pursuant to this chapter, specifically agrees that it will maintain throughout the entire term of the franchise agreement, and any renewals thereof, liability insurance protecting the franchisee and the borough with regard to damages that it is responsible to indemnify the borough pursuant to § 9-7 in the following minimum amounts:
(1)
One million dollars for bodily injury or death to any
one person, within the limit, however, of $2,000,000 for bodily injury or
death resulting from any one accident.
(2)
Five hundred thousand dollars for property damage resulting
from any one accident.
(3)
Worker's Compensation insurance on all employees engaged
in installation or service of its equipment.
B.
All insurance policies shall be issued by companies qualified
to do business in the Commonwealth of Pennsylvania. All insurance policies
shall be available for review by the borough.
C.
At the time of acceptance of a franchise, the franchisee
shall furnish to the borough a certificate of insurance evidencing compliance
with the foregoing requirements and proof that such coverages are in full
force and effect. Renewal certificates shall be delivered to the borough prior
to the expiration of any periods of coverage.
D.
All insurance policies shall name the borough as an additional
insured and shall further provide that any cancellation or reduction in coverage
shall not be effective unless 30 days' prior written notice thereof has been
given to the borough. A franchisee shall not cancel any required insurance
policy without submission of proof that the franchisee has obtained alternative
insurance satisfactory to the borough which complies with this chapter.
E.
Neither the provisions of this section nor any damages
recovered by the borough shall be construed to limit the liability of the
franchisee for damages under any franchise issued hereunder.
A.
Removal after relocation or expiration. At the expiration
of the franchise term and any renewal terms for which a franchise is granted,
or upon its revocation, as provided for herein, the franchisee shall have
the right to remove, at its expense, all or any portion of the communications
system, telecommunications system or utility system from all streets and public
rights-of-way within its franchise area. In doing so, the franchisee shall
return all disturbed areas to their condition existing prior to the franchisee's
installation of its equipment, including, but not limited to, necessary refilling
and compacting all disturbed areas. All such work shall be done at the franchisee's
sole cost and expense and shall be subject to inspection and approval by the
borough, whose inspection fees shall be paid by the franchisee.
B.
Sale and transfer of franchise.
(1)
Transfer. A franchise granted under this chapter shall
not be sold, assigned or transferred, either in whole or in part, or leased
or sublet in any manner, nor shall title thereto, either legal or equitable,
or any right, interest or property therein, pass to or vest in any person
without full compliance with the procedures set forth in this section and
the expressed approval of the Council.
(a)
Parties to the sale or transfer shall make written request
to the borough for the approval of a sale or transfer. An application for
a transfer shall provide complete information on the proposed transaction,
including details of the legal, financial, technical and other qualifications
of the transferee.
(b)
The borough shall reply in writing within 60 days of
the application and shall indicate approval of the application.
(2)
Transferee's agreement. No application for a transfer
of a franchise shall be granted unless the transferee agrees, in writing,
that it will abide by and accept all terms of this chapter and the franchise
agreement and that it will assume the obligations and liabilities, known and
unknown, of the previous franchisee under this chapter and the franchise agreement.
(3)
Approval does not constitute waiver. Approval by the
borough of a transfer of a franchise does not constitute a waiver or release
of any of the rights of the borough under this chapter or the franchise agreement,
whether arising before or after the date of the transfer.
(4)
Processing fee. As a condition of considering a transfer,
the borough may impose a fee upon the transferee to cover its estimated out-of-pocket
expenses in considering the application for transfer of a franchise, provided
that such fee is reasonable.
(5)
Filing of transfer document. Within 30 days of any transfer,
the franchisee shall file with the borough a copy of the deed, agreement,
mortgage, lease or other written instruments evidencing such sale, transfer
of ownership or control, or lease, certifying and sworn to be correct by the
franchisee.
A.
The borough reserves as an additional and as a separate
and distinct remedy, the right to terminate the franchise and all rights and
privileges of franchisee thereunder in any of the following events or for
any of the following reasons:
(1)
The franchisee fails after 30 days' prior written notice
to comply with any of the material provisions of this chapter or the franchise
agreement entered pursuant thereto or has, by act or omission, violated any
material term or condition; provided, however, that such period shall be extended
for a period of time as may be reasonably necessary to correct such noncompliance
or violation; or
(2)
The franchisee becomes insolvent, unable or unwilling
to pay its debts or is adjudged a bankrupt; or
(3)
The franchisee attempts to or does practice any fraud
or deceit in its conduct or relations with the borough under a franchise issued
pursuant to this chapter; or
(4)
The borough condemns substantially all of the property
where the franchisee's system is located within the borough by the lawful
exercise of eminent domain.
B.
No termination by the borough, except for the reason
of condemnation and revocation at will, shall be effective unless or until
the borough has adopted a resolution setting forth the cause and reason for
the revocation and the effective date, which resolution shall not be adopted
without 30 days' prior notice to the franchisee and an opportunity for the
franchisee to be heard on the proposed resolution.
C.
Upon the expiration or termination of the franchise,
the franchisee shall have the option to, without expense to the borough and
within such time as the borough may reasonably require, remove its communications
system, telecommunications system or utility system and restore the premises
hereby authorized to be used and occupied to a condition reasonably satisfactory
to the borough, or to abandon said communications system, telecommunications
system or utility system. In the event the franchisee chooses to abandon said
communications system, telecommunications system or utility system; the borough,
after 30 days' prior written notice, shall be allowed to take over said communications
system, telecommunications system or utility system located within the public
rights-of-way of the borough, as property of the borough, without compensation,
and in no event shall the franchisee have any claim for damages against the
borough on account of the taking over of said communications system, telecommunications
system or utility system, nor shall the franchisee have any obligation to
the borough or any third party for the abandonment of said communications
system, telecommunications system or utility system, except for reasonable
costs of removal of the communications system, telecommunications system or
utility system.
A.
Compliance with law. The franchisee shall conform during
the entire term of the franchise with this chapter and all applicable borough
ordinances, resolutions, rules and regulations heretofore and hereafter adopted.
B.
Captions. The paragraph captions and headings of this
chapter are for convenience and reference purposes only and shall not affect
in any way the meaning and interpretation of this chapter or any franchise
issued hereunder.
C.
Written notice. All notices, reports or demands required
to be given by either the borough or a franchisee under this chapter in connection
with any franchise granted by the borough pursuant hereto shall be deemed
to be given when delivered in writing, either personally to the person designated
by the franchisee or when five days have elapsed after it is deposited in
the United States mail in a sealed envelope, with registered or certified
mail postage prepaid thereon, or on the next business day if sent by express
mail or overnight air courier addressed to the parties to whom the notice
is being given, as follows:
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(1)
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If to borough:
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Borough of West Chester
Attention: Borough Manager
401 East Gay Street
West Chester, Pennsylvania 19380
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(2)
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If the franchisee: Pursuant to the franchise agreement.
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(3)
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Such addresses may be changed by the borough or the franchisee upon
notice to the other party given as provided in this section.
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