[Ord. 1996, 3/14/2005, § 1][1]
No person shall construct, operate or continued to operate private
communications system which occupies the streets, public rights-of-way
and public places within the Borough of Pottstown without having been
issued a license by the Public Works Department.
[Ord. 1996, 3/14/2005, § 2]
The purpose of this Part is:
A.
To regulate the erection, construction, reconstruction, installation,
operation, maintenance, dismantling, testing, repair and use of a
private communications system in, upon, along, across, above, over,
under or in any manner connected with the streets, public ways or
public places within the corporate limits of the Borough, as now or
in the future may exist.
B.
To provide the Borough with compensation for occupation and use of
the Borough's rights-of-way for a private communications system.
C.
To provide the Borough with compensation for acquisition and maintenance
of Borough's rights-of-way when used for commercial purposes.
D.
To provide the Borough with compensation for the cost of regulation
imposed by this Part on a private communication system.
[Ord. 1996, 3/14/2005, § 3]
For the purposes of this Part and any license in accordance
herewith, the following terms, phrases, words and their derivations
shall have the meaning given herein unless otherwise specifically
provided in this Part, unless the context clearly indicates otherwise
or unless such meaning would be inconsistent with the mainfest intent
of Borough Council.
A nonbroadcast facility consisting of a set of transmission
paths with associated signal generation, reception and control equipment,
under common ownership and control, which distributes or is designed
to distribute to subscribers the signals of one or more television
broadcast stations and is franchised by the Borough.
A person who for a charge or payment of a fee receives, sends
or uses any signal or service provided, collected or distributed by
a private communications system license by the Borough,
The Federal Communications Commission or its legally appointed
successor.
The privilege granted by the Borough by which the Borough
authorizes a person to erect, construct, reconstruct, operate, dismantle,
test, use and maintain a private communications system that occupies
the streets, public ways or public places within the Borough. Any
license issued in accordance herewith shall be a nonexclusive license.
The person or its legal successor is interest who is issued
a license or licenses in accordance with the provisions of this Part
for the erection, construction, reconstruction, operation, maintenance,
dismantling, testing, repair and use of a private communications system
in the Borough.
That geographic area and communications system in which the
Borough of Pottstown is located and in which Bell of Pennsylvania
is authorized by the Public Utilities Commission of Pennsylvania to
provide local exchange access telecommunication services.
Any communications equipment or facilities, not part of the
LATA or part of a cable communications system franchised by the Borough,
that in any manner is connected with the streets, public ways or public
places within the corporate limits of the Borough, as now or in the
future may exist.
Any area established for vehicular or public access use or
the entire width between the boundary lines of every way publicly
maintained when any part thereof is open for public purposes. "Street"
includes, but is not limited to, highway, avenue, road, alley, right-of-way,
lane, boulevard, concourse, bridge, tunnel, parks, parkways, waterways,
docks, overheads, wharves and piers.
All cash, credits or property of any kind or nature reported
as revenue items on licensee's audited income statements arising
from or attributable to the sale or exchange of private communications
services by the licensee within the Borough; or in any way derived
from the operation of is private communications system, including,
but not limited to, any interconnection between its system in the
Borough and any system whatsoever. This sum shall be the basis for
computing the fee imposed pursuant to this Part. Such sum shall not
include any bad debts, deposits, promotional or vendor discounts or
credits nor sales, service, occupation or other excise tax to the
extent that such taxes are charged separately from normal service
charges and are remitted by the licensee directly to the taxing authority.
[Ord. 1996, 3/14/2005, § 4]
All notices required to be given to the Borough under any provision
of this Part shall be deemed served when delivered by hand in writing
to the Pottstown Borough Manager, at 100 E. High Street, Pottstown,
Montgomery County, Pennsylvania, during normal business hours.
[Ord. 1996, 3/14/2005, § 5]
This Part shall not be construed to create or hold the Borough
responsible or liable for any damage to persons or property by reason
of any inspection or reinspection authorized herein or failure to
inspect or reinspect, nor shall the issuance of any license nor the
approval or disapproval of any installation authorized herein constitute
any representation, guarantee or warranty of any kind by, nor create
any liability upon, the Borough or any official, agent or employee
thereof.
[Ord. 1996, 3/14/2005, § 6]
1.
Any annual license issued by the Borough in accordance herewith shall
be a nonexclusive license for the use of the streets, public ways
or public places within the Borough as specified in the license for
the erection, construction, reconstruction, operation, maintenance,
dismantling, testing and use of a private communications system.
2.
Any license issued by the Borough is renewable annually upon establishment
by the licensee to the satisfaction of the Borough that the licensee
is in compliance with this Part all applicable federal, state and
local ordinances and regulations and the space occupied is not needed
for a public purpose.
[Ord. 1996, 3/14/2005, § 7]
1.
Any license issued for a private communications system in accordance
herewith shall apply only to the location or locations stated on the
license or licenses.
2.
Nothing in this Part shall be construed as a representation, promise
or guarantee by the Borough that any permit or other authorization
required under any Borough law for the construction or installation
of a private communications system shall be issued.
[Ord. 1996, 3/14/2005, § 8]
All technical standards governing construction, reconstruction,
installation, operation, testing, use, maintenance and dismantling
of a private communications system provided for herein shall be in
accordance with all applicable FCC and other federal, state and local
laws and regulations.
[Ord. 1996, 3/14/2005, § 9]
The Public Works Supervisor of the Borough of Pottstown shall
have the following powers and duties:
A.
Receive and review applications for licenses for any private communications
system.
B.
Review and audit all reports and filings submitted by the licensee
to the Borough pursuant to this Part.
C.
Submit regulations regarding the construction, reconstruction, operation,
maintenance, dismantling, testing or use of any private communications
system established by license in accordance herewith to the Borough
Council for review and promulgation.
[Ord. 1996, 3/14/2005, § 10]
1.
All persons submitting a request for a license to construct a private
communications system in accordance herewith shall file with their
request bonds solely for the protection of the Borough with a surety
company or trust company or companies as surety or sureties in an
amount determined by the Director of Public Works to protect the Borough
from any and all damages or costs suffered or incurred by the Borough
as a result thereof, including, but not limited to, attorney's
fees and costs of any action or proceeding, and including the full
amount of compensation, indemnification, cost of removal or abandonment
of any property or other costs which may be in default, up to the
full principal amount of such bond; and the condition shall be a continuing
obligation during the entire term of any license issued in accordance
herewith and thereafter until the licensee shall have satisfied in
full any and all obligations to the Borough which arise out of or
pertain to the license for a private communications system.
2.
None of the provisions of this section nor any bond accepted by the
Borough pursuant hereto, nor any damages recovered by the Borough
thereunder, shall be construed to excuse the faithful performance
by or limit the liability of the licensee under this Part or any license
issued in accordance herewith or for damages either to the full amount
of such bond or otherwise.
[Ord. 1996, 3/14/2005, § 11]
It shall be a term and condition of any license issued in accordance
herewith that as part of the consideration supporting the issuance
of such license and the Borough's permission thereby to occupy
and use the streets of the Borough, that the licensee shall pay each
year to the Borough the following compensation and license fees. Future
modifications to the License fee shall be made from time to time by
a resolution of Borough Council.
A.
Any private communications system which serves no customers other
than itself shall pay compensation and license fees in the amount
of $1 per linear foot for each diameter inch or less of underground
conduit or wire or each 0.250 diameter inch or less of aerial wire
per annum. In no event shall the fee be less than $250 per annum.
B.
Any private communication system that serves customers within the
Borough shall pay annually 5% of the annual total local gross revenues
derived from such customers.
[Ord. 1996, 3/14/2005, § 12]
1.
The annual compensation and license fee provided for in § 911(A)
shall be payable annually on or before February 1 of each calendar
year.
2.
The annual compensation and license fee provided for in § 911(B)
shall be assessed quarterly for the preceding quarter, as of March
31, June 30, September and December 31 of each year.
A.
Each quarterly payment shall be payable and reportable no less than
30 days after the relevant assessment date.
B.
Each payment shall be accompanied by a report from the licensee in
a form approved by the Borough showing the basis for the computation
and such other relevant data as may be required by the Borough.
C.
Each of such reports shall contain a notarized verification by the
chief financial officer of the licensee and such reports shall be
verified annually, within 90 days of the close of business of the
last day of the calendar year, by a certified public accountant selected
by the Borough at the expense of the licensee.
D.
Failure to comply strictly with this section shall be deemed to be
a violation of this Part and shall subject the licensee to all penalties
and remedies, both legal and equitable which are available to the
Borough.
3.
The acceptance of any payment required hereunder by the Borough shall
not be construed as an acknowledgment that the amount paid is the
correct amount due, nor shall such acceptance of payment be construed
as a release of any claim which the Borough may have for additional
sums due and payable.
A.
All fee payments shall be subject to audit by the Borough and assessment
or refund if the payment is found to be in error.
B.
In the event such audit results in an assessment by and an additional
payment to the Borough, such additional payment shall be subject to
interest at the rate of 6% per year and to a penalty of 6% per year,
which shall be due and payable immediately.
4.
Nothing in this Part shall be construed to limit the liability of
the licensee for all applicable federal, state and local taxes.
[Ord. 1996, 3/14/2005, § 13]
1.
The Borough shall not at any time be liable for any injury or damage
occurring to any person or property from any cause whatsoever, including
damages from the Borough's negligent omissions, if any, arising
from the use, operation or condition of the licensee's private
communications system.
2.
The licensee shall indemnify, save and hold harmless and defend the
Borough from all liens, charges, claims, including but not limited
to, libel, slander, invasion of privacy and unauthorized use of any
trademark, trade name or service mark; demands; suits; actions; fines;
penalties; losses; costs, including but not limited to, reasonable
legal fees and court costs; judgments; injuries; liabilities or damages,
in law or equity, of any and every kind and nature whatsoever, including
damages caused by or arising out of any act of negligent omission
of the Borough, its officers, servants, agents, employees or contractors,
or otherwise, arising out of or in any way connected with the installation,
operation, maintenance or condition of the licensee's private
communications system.
3.
The Borough Council, in consultation with the Borough Solicitor,
shall set the type and coverage of insurance required. In setting
the amount, the Borough shall take into consideration the size and
location of the private communications system, the financial resources
of the licensee, risk involved to the Borough and to the general public,
as well as other salient factors.
[Ord. 1996, 3/14/2005, § 14]
Nothing in this Part or in any license issued in accordance
herewith shall be construed as an abrogation by the Borough of its
police powers.
[Ord. 1996, 3/14/2005, § 15]
1.
Before commencing construction of its private communications system
in, above, over, under, across, through or in any way connected the
streets, public ways or public places of the Borough, the licensee
shall first obtain the written approval of the Director of Public
Works.
2.
Upon obtaining such written approval, the licensee shall give the
Director of Public Works written notice within a reasonable time of
proposed construction, but in no event shall such notice be given
less than 10 days before such commencement.
3.
Any person who submits a request for a license in accordance herewith
shall include therein proposed agreements for the use of existing
utility poles and conduits, if applicable, with the owner(s) of such
facilities to be used or affected by the construction of the proposed
private communications system, which agreements shall become effective
on the date of execution of the license issued in accordance herewith
in the event that such person is issued a license.
4.
It shall be unlawful for the licensee or any other person to open or otherwise disturb the surface of any street, sidewalk, driveway, public way or other public place for any purpose whatsoever without obtaining approval to do so after proceeding in the manner prescribed in Subsections 1 and 2 hereof. Violation of this section shall subject the licensee to all penalties and remedies prescribed therein and to all other remedies, legal or equitable, which are available to the Borough.
5.
The licensee shall restore any street or sidewalk it has disturbed
in accordance with the relevant provision of the Borough's Street
and Sidewalk Ordinance[1] and shall, at its own cost and expense, restore and replace
any other property disturbed, damaged or in any other way injured
by or on account of its activities to as good as the condition such
property was in immediately prior to the disturbance, damage or injury
or pay the fair market value of such property to its owner.
6.
The licensee shall, at its own cost and expense, protect, support,
temporarily disconnect, relocate in the same street or other public
place, or remove from such street or other public place, any of its
property when required to do so by the Borough because of street or
other public excavation, construction, repair, regrading, or grading;
traffic conditions; installation of sewers, drains, water pipes, Borough
owned power or signal lines, tracks; vacation or relocation of streets
or any other type of structure or improvement of a public agency,
or any other type of improvement necessary for the public health,
safety and welfare.
7.
Nothing in this Part or any license issued in accordance herewith
shall be construed as authorizing the licensee to erect and maintain
new poles in areas serviced by existing poles. The licensee shall
obtain written approval from the Director of Public works before erecting
any new poles or underground conduits where none exist.
8.
The licensee shall maintain all wires, conduits, cables, and other
real and personal property and facilities in good condition, order
and repair.
9.
The licensee shall keep accurate, complete and current maps and records
of its system and facilities which occupy the streets, public ways
and public places within the Borough and shall furnish as soon as
they are available two complete copies of such maps and records to
the Director of Public Works and Code Enforcement Office.
10.
The licensee shall comply with all rules and regulations of the Borough
governing the construction and installation of private communications
systems. In addition:
A.
All aerial cables and wires shall be installed parallel with existing
telephone and electric utility wires.
B.
Multiple aerial configurations shall be in parallel arrangement and
bundled, in accordance with engineering and safety considerations.
C.
All underground installations shall be in the appropriate size and
type conduit or other enclosures approved by the Director of Public
Works.
D.
All installations shall be underground in those areas of the Borough
where both telephone and electric utilities' facilities are underground
at the time of the installation of the licensee's private communications
system.
(1)
In areas where both telephone and electric utilities' facilities
are above ground at the time of the installation of the licensee's
private communications system, the licensee may install its system
above ground on existing utility poles only, upon the condition that
at such time as those facilities are placed underground by the telephone
and electric utility companies, the licensee shall likewise place
its facilities underground at its sole cost and expense.
E.
The licensee upon reasonable notice by the Borough shall temporarily
or permanently remove, adjust, raise or lower its facilities within
the right-of-way when the Borough determines that such action is needed
for public use of the right-of-way, including but not limited to the
passage of nonstandard vehicles.
F.
The licensee shall obtain the written permission of the owner including
the Borough of any tree or other vegetation before it trims or prunes
the same.
[Ord. 1996, 3/14/2005, § 16]
1.
The licensee shall not transfer or assign its interest in any license
issued in accordance herewith without the prior written, authorization
of the Director of Pubic Works.
2.
Nothing in any approval by the Director of Public Works authorizing
any transfer or assignment of any license issued in accordance herewith
shall be construed to waive or release any rights of the Borough in
and to the streets, public ways and public places of the Borough or
as a release of any part of the Borough's police powers.
[Ord. 1996, 3/14/2005, § 17]
In addition to any other legal and equitable remedies permitted
by law, any person or persons, firm or corporation who shall fail
to comply with any provision of this Part, upon conviction thereof,
shall be sentenced to pay a fine of not more than $600 per day, plus
costs of prosecution. However, each and every day in which any person
or persons, firm or corporation shall be in violation of any provision
of this Part shall constitute a separate offense.
