[Adopted 4-11-2006 by Ord. No. 306]
This article shall be known as the "New Britain Borough Rights-of-Way
Ordinance."
For the purposes 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:
A person:
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;
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
Which controls grantee and/or is controlled by or is under common
control with such person or entity.
The Borough of New Britain, County of Bucks, Commonwealth
of Pennsylvania, or the lawful successor, transferee, or assignee
thereof.
Shall have 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 a
facility in the public way.
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 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 grantee or any affiliate of 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 benefits to 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 grantee or its affiliates.
"Gross revenue" shall not be a net of:
Expense, including but not limited to any operating expense,
capital expense, sale expense, or commission;
Any accrual, including, without limitation, any accrual for
commissions; or
Any other expenditures, regardless of whether such expense,
deduction, accrual or expenditure reflects a cash payment.
Gross revenue shall not be double counted, viz., gross revenue
which has been included as gross revenue of both grantee and an affiliate
but which sum is included in gross revenue due solely to a transfer
of funds between grantee and the affiliate shall not be counted for
purposes of determining gross revenue.
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 § 380-28B 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
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."
The surface of, and the space above and below, any public
street, unopened right-of-way, highway, turnpike, bridge, land path,
alley, court, boulevard, sidewalk, parkway, way, lane, public way,
drive, circle or other public right-of-way held by the Borough in
the service area. "Public way" shall also mean any easement now or
hereafter held by the Borough within the service area for the purpose
of public travel and/or for utility and/or public service use dedicated
for compatible uses.
The present municipal boundaries of the Borough and shall
include any additions thereto by annexation or other legal means.
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 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 in the form shown at Appendix A to this article.[1]
[1]
Editor's Note: Appendix A is attached to this chapter.
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 Rights-of-Way
Ordinance. Continuous compliance with this article grants to 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.
B.
Exemptions. This article 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 communications 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. This article shall not apply to occupation or
use of the public ways to provide cable service. This article does
not authorize a person to provide cable service. A person seeking
to provide cable service must obtain permission from the Borough in
accordance with separate legislation of the Borough.
C.
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 grantee's construction, operation and/or maintenance of its facilities and equipment there occurs a disturbance of any public way by grantee, grantee shall, at its expense, replace and restore such public way to a condition which existed immediately prior to such disturbance. If grantee excavates the surface of any public way, grantee shall be responsible for restoration of the public way and its surface within the area affected by the excavation. The Borough reserves the right, after providing notice to grantee, to remove and/or repair any work done by grantee which is inadequate. The reasonable cost thereof, including the cost of inspection and supervision, shall be paid by the grantee. All excavations made by grantee in the public way shall be properly safeguarded for the prevention of accidents. Grantee shall comply with any and all applicable provisions of Article II, Openings and Excavations, of this chapter (Ordinance No. 110, enacted January 11, 1971), pertaining to opening or excavating Borough rights-of-way.
C.
Trees and shrubbery. The grantee shall notify the Borough and all
affected property owners regarding grantee's need to trim trees
or other natural growth upon and overhanging public ways so as to
prevent the branches of such trees from coming in contact with its
facilities or equipment. Trimming shall be limited to the area required
to clear its facilities or equipment.
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, 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, grantee shall provide the Borough
with a map showing the location of its installed facilities in the
public ways. Such maps shall be provided in both paper form as well
as in an electronic format for placement on the Borough's GIS
system. Annually thereafter, grantee shall provide a map to the Borough
showing the location of grantee's facilities in the public ways
on a scale of 150 feet per inch or whatever standard scale the Borough
adopts for general use.
F.
Excavations. Grantee may make excavations in public ways for any
facility subject to obtaining permits from the Borough. Prior to doing
such work, grantee must apply for and obtain appropriate permits from
the Borough and give appropriate notices to any other licensees and/or
permittees of the Borough and/or other units of government owning
or maintaining facilities which may be affected by the proposed excavation.
G.
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 a sewer or water main, the grantee's facilities
or equipment shall be removed or replaced in the manner the respective
Borough or other agency of government or municipal authority shall
direct. Any and all such removal or replacement shall be at the expense
of the grantee. Should grantee fail to remove, adjust or relocate
its facilities by the date established by the Borough or other agency
of government or municipal authority, the Borough or other agency
of government or municipal authority may cause and/or effect such
removal, adjustment or relocation, and the expense thereof shall be
paid by grantee, including all reasonable costs and expenses incurred
by the Borough or other agency of government or municipal authority
due to grantee's delay.
A.
In consideration of occupying or using the public ways under this
article, grantee shall pay to Borough a rental equal to 5% of gross
revenue.
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. Grantees shall file
with the Borough a complete and accurate statement, under notarial
seal, at the end of each calendar year quarter, certified as true
and correct by a representative of grantee authorized to make such
certification, explaining how the payment was calculated. In connection
with the rental payment due on February 14, the grantee shall also
submit to the Borough, on that date or no later than six months thereafter,
a detailed statement by an officer of the grantee, certified by the
grantee's independent certified public accountant, verifying
the accuracy of the gross revenue and rental payments for the previous
calendar year, with a detailed breakdown and explanation of the calculation
by each month.
C.
Grantee shall keep accurate books of account which shall clearly
support the calculation of rentals and describe in sufficient detail
the amounts attributable to each specific component of gross revenue.
Such books of account and all supplemental information and source
documents in support thereof, including, but not limited to, third
party remittances and contract documents, shall be made available
to the Borough and its authorized representatives for examination
at a location in Bucks County, Pennsylvania, at any time during regular
business hours, on 10 days' prior written notice and from time
to time, for the purpose of verifying or identifying rentals owed
to the Borough. Grantee shall exercise its best efforts to obtain
financial records of affiliates for the Borough for the purpose of
verifying the accuracy of the rental payments. Borough shall have
the right to examine and to recompute any amounts determined to be
payable under this article; provided, however, that such examination
shall take place within 48 months following the close of each year.
Any additional amounts due to the Borough as a result of the examination
and recomputation shall be paid within 30 days following written notice
to grantee by the Borough, which notice shall include a copy of the
examination report. In the event that said examination determines
that funds are owed to the Borough in an amount in excess of 2%, the
cost of said examination shall be borne by the grantee and reimbursed
to 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 existing
on the date payment was due, plus 3% points. Any amount recomputed
to reflect correct payment due shall bear interest as described from
the date such payment was originally due.
A.
Grantee shall save the Borough, its agents, employees and elected
and appointed officials harmless from and against all claims, damages,
losses and expenses, including reasonable attorney's fees, sustained
on account of any suit, judgment, execution, claim or demand whatsoever
arising out of the construction, leasing, operation or maintenance
of the grantee's equipment, facilities and services specified
by this article, whether or not any act or omission complained of
is authorized, allowed and/or prohibited by the ordinance and the
rights granted thereunder.
B.
Insurance amounts and requirements.
(1)
Grantee shall obtain and maintain in full force and effect throughout
the term of this article insurance with an insurance company licensed
to do business and doing business in the Commonwealth of Pennsylvania
and acceptable to the Borough. All companies will be required to be
rated A-VII or better by A.M. Best or A or better by Standard and
Poor. Grantee shall provide Borough with proof of such insurance so
required.
(2)
Grantee shall obtain and maintain in full force and effect, at grantee's
sole expense, insurance coverage in the following types and minimum
amounts:
|
Type
|
Amount
| ||
|---|---|---|---|
|
Workers' compensation and statutory employers liability
|
$100,000/$500,000/$100,000
| ||
|
Commercial general (public) liability- to include coverage for
the following where the exposure exists:
| |||
|
Premises operations
Independent contractors
Products/completed operations
Personal injury
Contractual liability
Explosion, collapse and underground property damage
|
Combined single limit for bodily injury and property damages
– $2,000,000 per occurrence or its equivalent
| ||
|
Comprehensive vehicle insurance coverage for loading and unloading
hazards, for:
| |||
|
Owned/leased vehicles
Nonowned vehicles
Hired vehicles
|
Combined single limit of bodily injury and property damage –
$1,000,000 per occurrence or its equivalent
| ||
(3)
The Borough shall receive, without expense, copies of certificates
of insurance evidencing coverage stated above.
(4)
Grantee agrees that, with respect to the above-required insurance,
all insurance certificates will contain the following required provisions.
(a)
Name the Borough and its officers, employees, board members
and elected and appointed officials as additional insured parties
(as the interests of each insured may appear) as to all applicable
coverage (except worker's compensation);
(b)
Provide for 60 days' prior written notice to the Borough for
cancellation, nonrenewal or material change; and
(c)
Provide that all provisions of this article concerning liability,
duty and standard of care, including the indemnity provisions, shall
be underwritten by contractual coverage sufficient to include such
obligations within applicable policies, subject to policy terms and
conditions.
(5)
Companies issuing the insurance policies shall have no recourse against
the Borough for payment of any premiums or assessments which all are
set at the sole risk of the grantee. Insurance policies obtained by
the grantee shall provide that the issuing company waives all right
of recovery by way of subrogation against the Borough in connection
with any damage covered by these policies.
C.
Grantee shall obtain and maintain, at its sole cost and expense,
and file with the Borough a corporate surety bond with a surety company
authorized to do business in the Commonwealth of Pennsylvania in the
amount of 15% of grantee's estimated costs to secure grantee's
performance of its obligations and faithful adherence to all requirements
of this article.
(1)
No action, proceeding or exercise of a right with respect to such
bond shall affect the Borough's rights to demand full and faithful
performance under this article or limit grantee's liability for
damages.
(2)
The bond shall contain the following endorsement: "It is hereby understood
and agreed that this bond may not be cancelled by the surety nor any
intention not to renew be exercised by the surety until 60 days after
receipt by the Borough of New Britain, by registered mail, of written
notice of such intent."
D.
All expenses of the above-noted insurance and bond shall be paid
by the grantee.
E.
The insurance policies mentioned herein shall contain an endorsement
stating the following: "Should any policies of insurance be cancelled
or coverages be reduced before the expiration date of said policies
of insurance, the issuer shall deliver 60 days' advance written notice
to the Borough."
F.
Neither the provisions of this article nor any insurance accepted
by the Borough pursuant hereto, nor any damages recovered by the Borough
thereunder, shall be construed to excuse faithful performance by the
Grantee and/or limit the liability of the Grantee under the Ordinance
issued hereunder and/or for damages, either to the full amount of
the bond or otherwise.
A.
General. In addition to all other rights, remedies and powers reserved
and/or retained by the Borough under this article or otherwise, the
Borough reserves the right to bring a civil action to collect any
sums due to Borough by grantee and/or forfeit or revoke all privileges
of grantee under this article in the event of willful or repeated
violation of this article.
B.
Penalties. Any person which 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.
In default of payment of such fine, the defendant may be imprisoned
for a period not exceeding 30 days. 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.[1]
A.
Compliance with applicable laws and ordinances. The grantee shall,
at all times, be subject to the exercise of the police power of the
Borough. The grantee shall comply with all lawful ordinances, codes,
laws, rules and regulations of the Borough, County of Bucks, Commonwealth
of Pennsylvania, and the United States of America which are not in
effect or hereafter enacted.
B.
Conflict. Whenever the requirements of this article are in conflict
with other requirements of the ordinances of the Borough of New Britain,
the most restrictive or those imposing the highest standards shall
govern. Privileges granted by this article do not constitute a waiver
or impairment of the rights of the Borough at law or equity now or
henceforth existing to proceed against grantee for enforcement of
the ordinance or violation of this article or ordinances of the Borough.
