[HISTORY: Adopted by the City Council of the City of Harrisburg 12-19-2005 by Ord. No. 22-2005. Amendments noted where applicable.]
This chapter shall be known as the "City of Harrisburg Rights-of-Way Ordinance."
For the purpose of this chapter, the following terms, phrases, words and abbreviations shall have the meanings ascribed to them below. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number.
- A person:
- A. 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;
- B. 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
- C. Which controls the grantee and/or is controlled by or is under common control with such person or entity.
- CABLE SERVICE
- The same meaning as used in the Communications Act.
- The City of Harrisburg, a third class city in Dauphin County, Pennsylvania, or the lawful successor, transferee, or assignee thereof.
- COMMUNICATIONS ACT
- The Communications Act of 1934, as amended as of the time of enactment of this chapter.
- Any tangible asset used to install, repair, or maintain a facility in the public way.
- A service which is provided to residences or businesses within the service area but which is exempt from the provisions of this chapter under § 9-115.4B of this chapter.
- Any tangible asset in the public way used or required to provide a nonexempt service to residences or businesses within the service area.
- A person or entity which enjoys a nonexclusive privilege to occupy or use a public way to provide nonexempt service under this chapter and which is in continuous compliance with this chapter.
- GROSS REVENUE
- 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.
- A. Gross revenue shall include amounts earned, regardless of:
- (1) Whether the amounts are paid in cash, in trade, or by means of some other benefit to the 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 the grantee or its affiliates.
- B. Gross revenue shall not be a net of:
- (1) Expenses, including but not limited to any operating expense, capital expense, sales expense, or commission;
- (2) Any accrual, including, without limitation, any accrual for commissions; or
- (3) Any other expenditure, regardless of whether such expense, deduction, accrual, or expenditure reflects a cash payment.
- C. 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 chapter under § 9-115.4B of this chapter.
- Any natural person, sole proprietorship, partnership, association, limited-liability company, corporation or other form of organization or juridical person authorized to do business in the Commonwealth of Pennsylvania and provides or seeks to provide one or more nonexempt services to residences or businesses in the service area. A governmental entity or a municipal authority is not a person.
- PUBLIC WAY
- 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 City in the service area. "Public way" shall also mean any easement now or hereafter held by the City within the service area for the purpose of public travel and/or for utility and/or public service use dedicated for compatible uses.
- SERVICE AREA
- The present municipal boundaries of the City, and shall include any additions thereto by annexation or other legal means.
Each person who occupies or uses or seeks to occupy or use a public way other than on a transitory basis to provide a nonexempt service to residences or businesses within the service area, or places any equipment or facility in a public way other than on a transitory basis, including persons with installation and maintenance responsibilities by lease, sublease or assignment, must register with the City. Registration is accomplished by filing with the City a completed provider certification in the form shown at Appendix A of this chapter, which may from time to time be amended or modified by the Mayor or his/her designee and filed with the City Clerk on a yearly basis.
Editor's Note: Appendix A is included at the end of this chapter.
Grant. Continuous compliance with this chapter grants to the grantee a nonexclusive privilege to occupy or use the public ways for the purpose of providing nonexempt service to residences or businesses within the service area. Occupation or use of the public ways for the purpose of providing nonexempt service to residences or businesses within the service area not in compliance with this chapter shall be unlawful.
Exemptions. This chapter shall not apply to occupation or use of the public ways to provide:
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.
The transportation of natural gas, electricity, petroleum or petroleum products or water or any combination of such substances for the public.
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 for the public.
The diverting, developing, pumping, impounding, distributing or furnishing of water from either surface or subsurface sources to or for the public.
The collection, treatment, or disposal of sewage for the public.
The conveyance or transmission of messages or communications by telephone or telegraph for the public.
Not a pole attachment agreement. This chapter does not authorize the grantee to attach devices to any pole or other structure in a public way for the intentional transmission or radiation of radio frequency emissions or energy through any means now known or hereafter developed.
Safety requirements. All such work in the public ways shall be performed in accordance with applicable building and safety codes and technical requirements.
Maps. Prior to beginning any construction of facilities, the grantee shall provide the City 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 City 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 in PDF, arc-info, CAD or such other format or formats as are required for as-built drawings by the City for placement on the City's GIS system. Annually thereafter, the grantee shall provide a map to the City 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 City adopts for general use.
Reservation of City public ways. Nothing in this chapter shall be construed to prevent the City or other agency of government or municipal authority from constructing sewers, grading, paving, repairing and/or altering any street and/or laying down, repairing and/or removing water mains and/or constructing and/or establishing any other public work or improvement. If any of the grantee's facilities or equipment interferes with the construction or repair of any street or public improvement, including construction, repair or removal of a sewer or water main, the grantee's facilities or equipment shall be removed or replaced in the manner the respective City 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 City or other agency of government or municipal authority, the City 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 City or other agency of government or municipal authority due to the grantee's delay.
In consideration of occupying or using the public ways under this chapter, the grantee shall pay to the City a rental equal to 5% of gross revenue.
The rental shall be assessed on a calendar-quarterly basis and shall be payable to the City no later than 45 days after the expiration of the calendar quarter for which payment is due. The grantee shall file with the City 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 City, on that date or no later than six months thereafter, a detailed statement by an officer of the grantee with a detailed breakdown and explanation of the calculation by each month, accompanied by an opinion of the grantee's independent certified public accountant attesting to the accuracy of such verification and to the actual payments made by the grantee to the City for the previous calendar year.
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, original books of entry, third-party remittances and contract documents, shall be made available to the City and its authorized representatives for examination at a location in the City, at any time during regular business hours of the City on 10 days' prior written notice, and from time to time for the purpose of verifying or identifying rentals owed to the City. The grantee shall exercise its best efforts to obtain financial records of affiliates for the City for the purpose of verifying the accuracy of the rental payments.
The City shall have the right to examine and to recompute any amounts determined to be payable under this chapter; provided, however, that such examination shall take place within 48 months following the close of each year. The grantee shall retain such books and records, as well as all other documents, papers and electronically stored information in any way relating to the calculation of proper rental payments, for at least five years from the end of the year to which they are applicable or, if an audit is required or a controversy should arise between the parties hereto regarding the rental payable hereunder, until such audit or controversy is terminated. Any additional amount due to the City as a result of the examination and recomputation shall be paid within 30 days following written notice to the grantee by the City, which notice shall include a copy of the examination report. In the event that said examination determines that funds are owed to the City in an amount in excess of 2% of the rental actually paid by the grantee for the examination period, the cost of said examination shall be borne by the grantee and reimbursed to the City within 30 days following written notice to the grantee.
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 in accordance with Subsection C or D above shall bear interest as described from the date such payment was originally due.
The grantee shall save the City, its agents, employees and elected and appointed officials harmless from and against all claims, damages, losses and expenses, including reasonable attorneys' fees, sustained on account of any suit, judgment, execution, claim or demand whatsoever, including for the negligence of the City, its employees, officials, agents and elected officials arising out of the construction, leasing, operation or maintenance of the grantee's equipment, facilities, and services specified by this chapter, whether or not any act or omission complained of is authorized, allowed and/or prohibited by this chapter and the rights granted hereunder.
The grantee shall obtain and maintain in full force and effect throughout the term of this chapter insurance with an insurance company licensed to do business and doing business in the Commonwealth of Pennsylvania and acceptable to the City. All companies will be required to be rated A-VII or better by A.M. Best or A or better by Standard and Poors. The grantee shall provide the City with proof of such insurance so required.
The grantee shall obtain and maintain in full force and effect, at the grantee's sole expense, insurance coverage in the following types and minimum amounts:
Workers' compensation and statutory employer's liability: $100,000/$500,000/$100,000.
Commercial general (public) liability: combined single limit for bodily injury and property damage: $2,000,000 per occurrence or its equivalent, to include coverage for the following where the exposure exists:
Comprehensive vehicle insurance coverage for loading and unloading hazards for owned/leased vehicles, nonowned vehicles and hired vehicles: combined single limit for bodily injury and property damage: $1,000,000 per occurrence or its equivalent.
No action, proceeding or exercise of a right with respect to such bond shall affect the City's rights to demand full and faithful performance or liability for damages.
The bond shall contain the following endorsement: "It is hereby understood and agreed that this bond may not be canceled by the surety nor any intention not to renew be exercised by the surety until 60 days after receipt by the City of Harrisburg, by registered mail, of written notice of such intent."
All expenses of the above-noted insurance and bond shall be paid by the grantee.
The insurance policies mentioned herein shall contain an endorsement stating the following: "Should any policies of insurance be canceled or coverages be reduced, before the expiration date of said policies of insurance, the issuer shall deliver 60 days' advance written notice to the City."
Neither the provisions of this chapter nor any insurance accepted by the City pursuant hereto, nor any damages recovered by the City hereunder, shall be construed to excuse faithful performance by the grantee and/or limit the liability of the grantee under the bond issued hereunder and/or for damages, either to the full amount of the bond or otherwise.
Editor's Note: Amended at time of adoption of Code (see Ch. 1-303).
General. In addition to all other rights, remedies and powers reserved and/or retained by the City under this chapter or otherwise, the City reserves the right to bring a civil action to collect any sums due to the City by the grantee and/or forfeit or revoke all privileges of the grantee under this chapter in the event of violation of this chapter.
Penalties. Any person which commits or suffers the violation of this chapter shall, upon being found liable in a civil enforcement proceeding commenced by the City, pay a fine of $500, plus all court costs, including reasonable attorneys' fees, incurred by the City. 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 chapter which is found to have been violated. In addition, the City also may enforce this chapter by an action brought in equity.
Compliance with applicable laws and ordinances. The grantee shall at all times be subject to the exercise of the police power of the City. The grantee shall comply with all lawful ordinances, codes, laws, rules and regulations of the City, Commonwealth of Pennsylvania, and the United States of America which are now in effect or hereafter enacted.
Conflict. Whenever the requirements of this chapter are in conflict with other requirements of the ordinances of the City, the most restrictive, or those imposing the highest standards, shall govern. Privileges granted by this chapter do not constitute a waiver or impairment of the rights of the City at law or equity now or henceforth existing to proceed against the grantee for enforcement of the chapter or violation of this chapter or ordinances of the City.