This article shall be known as the "Morrisville Borough Rights-of-Way Ordinance."
[Adopted 1-16-2007 by Ord. No. 957]
A.
Terms. For the purpose of this article, the following terms, phrases, words, and abbreviations shall have the meanings ascribed to them below. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number and words in the singular number include the plural number.
B. AFFILIATE(1) (2) (3) BOROUGH CABLE SERVICE COMMUNICATIONS ACT EQUIPMENT EXEMPT FACILITY GRANTEE GROSS REVENUE NONEXEMPT PERSON PUBLIC PROPERTY PUBLIC WAY SERVICE AREA
As used in this article, the following terms shall have the meanings indicated:
A person:
With a direct or indirect ownership interest in the subject entity of 5% or more of 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 of its nominee is an office of 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 Borough of Morrisville, County of Bucks, Commonwealth of Pennsylvania or the lawful successor, transferee, or assignee thereof.
The same meaning as used in the Communications Act.
The Communications Act of 1934, as amended as of the time of enactment of this article.
Any tangible asset used to install, repair or maintain, or remove a facility in the public way.
A service which is provided to residences or businesses within the service area, but which is exempt from the provisions of this article under § 376-23B of this article.
Any tangible asset in the public way used or required to provide a nonexempt service to residences or businesses within the service area. The following are not a "facility": a railroad, street railway, gas pipe, water pipe, electric conduit, electric piping, telephone pole, telegraph pole, electric 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 article and who is in continuous compliance with this article.
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 expenses, 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.
A service which is provided to residences or businesses within the service area, but which is not exempt from the provisions of this article under § 376-23B of this article.
Any natural person, sole proprietorship, partnership, association, limited liability company, corporation or other form of organization, authorized to do business in the Commonwealth of Pennsylvania and which provides or seeks to provide one or more nonexempt services to residences or businesses in the service area. A governmental entity or a municipal authority is not a person.
Any real property owned by the Borough other than the public way.
The surface of, and the space above and below, any public street, unopened right- of-way, highway, turnpike, bridge, 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 services use dedicated for compatible uses.
The present municipal boundaries of the Borough, and shall include any additions hereto by annexation or other legal means.
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 who places any equipment or facility in a public way other than on a transitory basis, including persons with installation and maintenance responsibilities by lease, sublease or assignment, must register with the Borough. Registration is accomplished by filing with the Borough a completed provider certification form available at the Borough Hall. Such registration shall be valid for 10 years from the date of registration unless sooner terminated as provided for herein.
A.
Grant. It shall be unlawful for any person to construct, repair, remove, relocate or perform any work on or use any facilities or any part thereof in a public way unless in compliance with this Article VI, Use of Rights-of-Way. Continuous compliance with this Article VI, Use of Rights-of-Way, 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. The grantee shall contract separately with the Borough for any use of public property.
B.
Exemptions. This Article VI, Use of Rights-of-Way, shall not apply to occupation or use of the public ways to provide:
(1)
The transportation of passengers or property, or both, as a common carrier by means of elevated street railway, inclined plane railway, railroad, street railway or underground street railway, trackless-trolley omnibus, or by any combination of such means.
(2)
The transportation of artificial or natural gas, electricity, petroleum or petroleum products or water, or any combination of such substances for the public.
(3)
The production, generation, manufacture, transmission, storage, distribution or furnishing of natural or artificial gas, electricity, steam, air conditioning or refrigerating service, or any combination thereof, to or for the public.
(4)
The diverting, developing, pumping, impounding, distributing or furnishing of water from either surface or subsurface sources to or for the public.
(5)
The collection, treatment or disposal of sewage for the public.
(6)
The conveyance or transmission of messages or communication by telephone or telegraph for the public.
(7)
The diverting, pumping or impounding of water for the development or furnishing of hydroelectric power to or for the public.
(8)
The transportation of oxygen or nitrogen, or both, by pipeline or conduit for the public.
(10)
Cable service.
C.
Not a cable system. This article does not authorize a person to provide cable service. A person seeking to provide cable service must obtain permission from the Borough under separate legislation of the Borough.
D.
Not a pole attachment agreement. This article does not authorize the grantee to attach to any pole or other structure in 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.
A.
Conditions of street occupancy. All facilities and equipment installed or erected by the grantee pursuant to the terms hereof shall be located so as to cause a minimum of interference with the proper use of public ways and with the rights and reasonable convenience of property owners who own property that adjoins any of said public ways.
B.
Restoration of public ways. If during the course of the grantee's construction, operation and/or maintenance of its facilities and equipment there occurs a disturbance of any public way by the grantee, the grantee shall, at its expense, replace and restore such public way to a condition which existed immediately prior to such excavation. 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. Restoration of the public way shall be commenced in a timely manner in accordance with standards for such work set by the Borough. Weather permitting, restoration shall be undertaken within no more than 10 business days after the damage is incurred and the grantee shall use its best efforts to complete the restoration as soon as possible thereafter. The Borough reserves the right, after providing notice to the grantee, to remove and/or repair any work done by the grantee which is inadequate. The reasonable cost thereof, including the cost of inspection and supervision, shall be paid by the grantee. All excavations made by the grantee in the public way shall be properly safeguarded for the prevention of accidents.
C.
Tree and shrubbery. The grantee shall have the authority, except when in conflict with existing Borough ordinances, to trim any trees upon and overhanging public ways so as to prevent the branches of such trees from coming into contact with the grantee's facilities, except that at the option of the Borough, such trimming may be done by it, under its supervision and direction, at the expense of the grantee. The grantee shall notify Borough and all affected property owners regarding the grantee's need to trim trees or other natural growth upon and overhanging public ways so as to prevent the branches of such trees from coming in contact with its facilities or equipment. Trimming shall be limited to the area required to clear its facilities or equipment.
D.
Safety requirements. All such work in the public ways shall be performed in accordance with applicable safety codes and technical requirements.
E.
Maps. Prior to beginning any construction of facilities, the grantee shall provide the Borough with a construction schedule for work in the 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, the grantee shall provide the Borough with a map showing the location of its installed facilities in the public ways. Such maps shall be provided in both paper form, as well as in electronic format if and when the Borough employs a GIS system. Annually thereafter, the grantee shall provide a map to the Borough showing the location of the grantee's facilities in the public ways on a scale of 150 feet per inch or whatever standard scale the Borough adopts for general use.
F.
Reservation of Borough public ways. Nothing in this article shall be construed to prevent the Borough or other agency of government or municipal authority from constructing sewers, grading, paving, repairing and/or altering any street, and/or laying down, repairing and/or removing water mains and/or constructing and/or establishing any other public work or improvement. If any of the grantee's facilities or equipment interferes with the construction or repair of any street or public improvement, including construction, repair or removal of sewer or water main, the grantee's facilities or equipment shall be removed or replaced in the manner the Borough, or other agency of government or municipal authority, shall direct. Any and all such removal or replacement shall be at the expense of the grantee. Should the grantee fail to remove, adjust or relocate its facilities by the date established by the Borough or other agency of government or municipal authority, the Borough or other agency of government or municipal authority may cause and/or effect such removal, adjustment or relocation, and the expense thereof shall be paid by the grantee, including all reasonable costs and expenses incurred by the Borough or other agency of government or municipal authority due to the grantee's delay.
A.
In consideration of occupying or using the public ways under this article, the grantee shall pay to the Borough a rental equal to 5% of gross revenue or other such remuneration as set forth from time to time by the Borough.
B.
The rental shall be assessed on a calendar quarterly basis and shall be payable to the Borough no later than 45 days after the expiration of the calendar quarter for which payment is due. The grantee shall file with the Borough a complete and accurate statement, under notarial seal, at the end of each calendar year quarter certified as true and correct by a representative of the grantee, authorized to make such certification, explaining how the payment was calculated. In connection with the rental payment due on February 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.
C.
The grantee shall keep accurate books of account which shall clearly support the calculation of rentals and describe in sufficient detail the amounts attributable to each specific component of gross revenue. Such books of account and all supplemental information and source documents in support thereof, including, but not limited to, third-party remittances and contract documents, shall be made available to the Borough and its authorized representatives for examination at a location in Bucks County, Pennsylvania, at any time during regular business hours on 10 days' prior written notice and from time to time for the purpose of verifying or identifying rentals owed to the Borough. The grantee shall exercise its best efforts to obtain financial records of affiliates for the Borough for the purpose of verifying the accuracy of the rental payments. The Borough shall have the right to examine and to recompute any amounts determined to be payable under the article; provided, however, that such examination shall take place within 48 months following the close of each year. Any additional amount due to the Borough as a result of the examination and recomputation shall be paid within 30 days following written notice to the grantee by the Borough, which notice shall include a copy of the examination report. In the event that said examination determines that funds are owed to the Borough in an amount in excess of 2%, the cost of said examination shall be borne by the grantee and reimbursed to the Borough within 30 days following written notice to the grantee.
D.
In the event that any rental or other payment is not made or the requisite documentation and certification is not provided on or before the applicable dates heretofore specified, interest shall be compounded daily and set at the one-year United States Treasury Bill rate existent on the date payment was due, plus three percentage points. Any amount recomputed to reflect correct payment due shall bear interest as described from the date such payment was originally due.
A.
Construction bond and performance bond.
(1)
Performance bond. Upon the effective date of the franchise, the grantee shall obtain and maintain during the entire term of the franchise and any extensions and renewals thereof, at its cost and expense, and file with the Borough, a corporate surety bond in an amount specified in the franchise to guarantee the faithful performance of the grantee of all its obligations provided under this article and the franchise. Failure to timely obtain, file and maintain said bond shall constitute a substantial violation within the meaning of this article.
(2)
Conditions. The performance bond shall provide the following conditions: There shall be recoverable by the Borough jointly and severally from the principal and surety, any and all fines and liquidated damages due to the Borough and any and all damages, losses, costs and expenses suffered or incurred by the Borough resulting from the failure of the grantee to faithfully comply with the provisions of this article and the franchise; comply with all orders, permits and directives of any Borough agency or body having jurisdiction over its acts or defaults; pay fees due to the Borough, or pay any claims, liens or taxes due the Borough which arise by reason of the construction, operation, maintenance or repair of the cable system. Such losses, costs and expenses shall include but not be limited to attorneys' fees and other associated expenses.
(3)
Reduction of bond. Upon written application by the grantee, the Borough may, at its sole option, permit the amount of the bond to be reduced or waive the requirements for a performance bond subject to the conditions set forth below. Reductions granted or denied upon application by the grantee shall be without prejudice to the grantee's subsequent applications or to the Borough's right to require the full bond at any time thereafter. However, no application shall be made by the grantee within one year of any prior application except for good cause shown.
(4)
Construction bond. The grantee shall maintain and by its acceptance of any franchise granted hereunder agrees that it will maintain through the rebuild or construction of the cable television system required by this article or the franchise, a faithful construction bond in an amount specified in the franchise conditioned upon the faithful performance of the grantee in the construction or rebuild of a cable television system complying with related provisions of this article and the franchise, and upon the further condition that if the grantee shall fail to comply with any law, ordinance or regulation governing the construction or rebuild of the cable television system, there shall be recoverable jointly and severally from the principal and surety of the bond, any damages or loss suffered by the Borough as a result, including the full amount of any compensation, indemnification, or cost of repair, construction, removal or abandonment of any property of the grantee, plus attorneys' fees and costs, up to the full amount of the bond.
(5)
Use of performance bond and construction bond. Prior to drawing upon the performance bond or the construction bond for the purposes described in this article, the Borough shall give the grantee written notice of its intent to draw on the bond. Said notice shall detail the basis for drawing on the bond and, if the grantee has not already been provided with a written notice of violation and an opportunity to correct the violation, the notice provided under this subsection shall provide the grantee with a minimum of 30 days to remedy the matter. If the matter is not remedied within the cure period specified in the applicable notice, the grantee shall have 10 days from the receipt of such written notice to make a full and complete payment. If the grantee does not make the payment within 10 days, the Borough may withdraw the amount thereof, with interest, from the performance bond. Nothing herein shall preclude the Borough from taking action in emergency situations without the thirty-day period specified above.
(6)
Notification. Within three days of a withdrawal from the performance bond or construction bond, the Borough shall send to the grantee, by certified mail, return receipt requested, written notification of the amount, date and purpose of such withdrawal.
(7)
Replenishment of performance bond and construction bond. No later than 30 days after mailing to the grantee by certified mail notification of a withdrawal pursuant to Subsection A(5) above, the grantee shall replenish the performance bond and/or construction bond in an amount equal to the amount so withdrawn.
(8)
Nonrenewal, alteration or cancellation of performance bond and construction bond. The performance bond and construction bond required herein shall be in a form satisfactory to the Borough and shall require 30 days written notice of any nonrenewals, alteration or cancellation to both the Borough and the grantee. The grantee shall, in the event of any such cancellation notice, obtain, pay all premiums for, and file with the Borough written evidence of the issuance of replacement bond or policies within 30 days following receipt by the Borough or the grantee of any notice of cancellation.
(9)
Inflation. To offset the effects of inflation, the amount of the performance bond provided for herein is subject to reasonable adjustment as provided in the franchise.
B.
Liability and insurance.
(1)
Certificate of insurance. Prior to commencement of construction, but in no event later than 60 days after the effective date of the franchise and thereafter continuously throughout the duration of the franchise and any extensions or renewals thereof, the grantee shall furnish to the Borough certificates of insurance, approved by the Borough for all types of insurance required under this article. Failure to furnish said certificates of insurance in a timely manner shall constitute a violation of this article.
(2)
Filing. Any insurance policy obtained by the grantee in compliance with the section shall be filed and maintained with the Borough Manager during the term of the franchise, and may be changed from time to time to reflect changing liability limits and/or to compensate for inflation consistent with Subsection B(8) below. The grantee shall immediately advise the Borough of any litigation that may develop that would affect this insurance.
(3)
No liability limit. Neither the provisions of the section nor any damages recovered by the Borough hereunder shall be construed to or limit the liability of the grantee under any franchise issued hereunder or for damages.
(4)
Endorsement. All insurance policies maintained pursuant to this article or the franchise shall contain the following, or a comparable, endorsement: "It is hereby understood and agreed that this insurance policy may not be canceled by the insurance company nor the intention not to renew be stated by the insurance company until 30 days after receipt by the Borough Manager, by registered mail, of a written notice of such intention to cancel or not to renew."
(5)
Hold harmless clause. All contractual liability insurance policies maintained pursuant to this article or the franchise shall include the provision of the following hold harmless clause: "The grantee agrees to indemnify, save harmless and defend the Borough, its officials, agents, servants and employees, and each of them against and hold it and them harmless from any and all lawsuits, claims, demands, liabilities, losses and expenses, including court costs and reasonable attorneys' fees for or on account of any injury to person, or any death at any time resulting from such injury, or any damage to any property, which may arise or which may be alleged to have arisen or which may be alleged to have arisen out of or in connection with the work covered by the franchise and performed or caused to be performed by grantee, its employees, agents and contractors or their successors. The foregoing indemnity shall apply except if such injury, death or damage is caused directly by the negligence or other fault of the Borough, its agents, servants or employees or any other person indemnified hereunder."
(6)
Commonwealth institution. All insurance policies provided under the provisions of this article or the franchise shall be written by companies authorized to do business in the Commonwealth, and approved by the Pennsylvania Department of Insurance.
(7)
Named insured. At any time during the term of the franchise, the Borough may request and the grantee shall comply with such request, to name the Borough as an additional named insured for all insurance policies written under the provisions of this article or the franchise.
(8)
Inflation. To offset the effects of inflation and to reflect changing liability limits, all of the coverages, limits and amounts of the insurance provided for herein are subject to reasonable increases at the end of every three-year-period of the franchise, applicable to the next three-year period, upon the determination of the Borough.
(9)
General liability insurance. The grantee shall maintain, and by its acceptance of any franchise granted hereunder specifically agrees that it will maintain, throughout the term of the franchise, general liability insurance insuring the grantee in the minimum of:
(10)
Policy inclusion. Such general liability insurance must include coverage for all of the following: comprehensive form, premises operations, explosion and collapse hazard, underground hazard, products/completed operations hazard, contractual insurance, broad form property damage and personal injury.
(11)
Automobile liability insurance. The grantee shall maintain, and by its acceptance of any franchise granted hereunder specifically agrees that it will maintain, throughout the term of the franchise, automobile liability insurance for owned, nonowned or rented vehicles in the minimum amount of:
(12)
Workers' compensation and employer's liability insurance. The grantee shall maintain, and by its acceptance of any franchise granted hereunder specifically agrees that it will maintain, throughout the term of the franchise, workers' compensation and employer's liability insurance, valid in the Commonwealth, in the minimum of amount of:
(13)
No limitation on liability. None of the provisions of this article or any insurance policy required herein, or any damages recovered by the Borough hereunder, shall be construed to excuse the faithful performance by or limit the liability of the grantee under this article or the franchise for damages either to the limits of such policies or otherwise.
C.
Indemnification.
(1)
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 workers' compensation claims against the Borough or others), causes of action, actions, liability and judgments for injury or damages (including, but not limit to, expenses for reasonable legal fees and disbursements assumed by the Borough in connection therewith, but excluding claims, suits, actions, liabilities, judgments or damages that are the direct result of negligence or deliberate acts or omission of the Borough, its officers, employees, agents, boards or commissions):
(a)
To persons or property, in any way arising out of or through the acts omissions of the grantee, its subcontractors, agents or employees, to which the grantee's negligence shall in any way contribute, and regardless of whether the Borough's negligence or the negligence of any other party shall have contributed to such claim, cause of action, judgment, injury or damage.
(b)
Arising out of any claim for invasion of the right of privacy, for defamation of any person, firm or corporation, or the violation or 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 the Borough or educational access programming.
(c)
Arising out of the grantee's failure to comply with provisions of any federal, Commonwealth or local statute, ordinance or regulation applicable to the grantee in its business hereunder.
(2)
The foregoing indemnity is conditioned upon the following: The Borough shall give the grantee reasonable notice of any claim or the commencement of any action, suit or other proceeding covered by the provisions of the Subsection C. The grantee will provide the defense of any claims brought against the Borough under this Subsection C of the franchise by selecting counsel of the grantee's choice to defend the claim, subject to the reasonable consent of the Borough, which will not unreasonably be withheld. 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 expense; provided, however, that the grantee shall have the right to defend, settle or compromise any claim or action arising hereunder, and the grantee shall have the sole authority to decide the appropriateness and the amount of any such settlement. Recovery by the Borough of any sum by reason of liquidated damages required by the franchise shall be deducted from any recovery which the Borough might have against the grantee arising out of the same transaction under the terms of this Subsection C.
The Borough reserves the right to revoke any franchise granted hereunder and rescind all rights and privileges associated with the franchise in the following circumstances, each of which shall represent a default and breach under the article and the franchise grant:
A.
If the grantee shall default in the performance of any of the material obligations under this article, the franchise, or under such documents, contracts and other terms and provisions entered into by and between the Borough and the grantee.
B.
If the grantee shall fail to provide or maintain in full force and effect the liability and indemnification coverage or the performance bond as required herein.
C.
If the grantee, after all established regulatory and appellate procedures have been exhausted, shall violate any orders or rulings of any regulatory body having jurisdiction over the grantee relative to this article or franchise.
D.
The grantee becomes insolvent, unable or unwilling to pay its debts or is adjudged bankrupt.
Any person who commits or suffers the violation of this article shall, upon being found liable in a civil enforcement proceeding commenced by the Borough, pay a fine of $600, plus all court costs, including reasonable attorneys' fees incurred by the Borough. A separate offense shall arise for each day or portion thereof in which a violation is found to exist or for each section of this article which is found to have been violated. In addition, the Borough also may enforce this article by an action brought in equity.
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 of Morrisville, County of Bucks, Commonwealth of Pennsylvania and the United States of America which are now in effect or hereafter enacted.