Ordinance 570

1.1 Assist the Borough in managing its Public Rights-of-Way with respect to

1.3 Provide the Borough with appropriate compensation for occupation and use

of the Borough's Rights-of-Way for a Telecommunications System and for the cost of

applicable law.

representative, shall serve as the single point of contact within the Borough for all

Persons regulated under this Section.

2.2 The Borough Manager shall coordinate all contacts with other Borough

departments as necessary to facilitate issuance of any and all permits required by the

2.3 The Borough Manager shall coordinate the preparation of all policies and forms

as necessary for the implementation of this Ordinance with the approval of the Borough

Unless the context specifically indicates otherwise, the meaning of the terms used in

this Ordinance shall be as follows:

(2) "Application" means the form prescribed by the Borough, which the Applicant

(3) "Construction" means the building, erection, or installation in, on, over or

under a Right-of-Way. It does not include maintenance or repair of existing

aerial cables or equipment in a Right-of-Way or a single line extension from

equipment in the Right-of-Way.

(4) "Construction Permit" means the written authorization granted by the Borough

to an Applicant in order to perform construction in a Right-of-Way.

(5) "Emergency" means a condition that poses a clear and immediate danger to

life or health, or significant loss of property.

(6) "Equipment" means any tangible property located or proposed to be located in

a Right-of-Way, including, but not be limited to, wires, lines, cables, conduits,

(7) "Maintenance" means work of a minor nature that will keep an existing

condition from failure or decline.

(9) "Person" means any individual, firm, partnership, association, corporation,

company or other business entity.

(10) "Right-of- Way" or "Public Right-of-Way" means the surface and space in, on

and above any real property in which the Borough has an interest in law or in

equity, including, but not limited to, any public street, boulevard, avenue, road,

highway, easement, freeway, alley, court or any other place, other than real

property owned in fee by the Borough.

(11) "Restore" or "restoration" means the process by which a Right-of-Way is

returned to a state that is as good or better as its condition before construction.

(12) "Right-of- Way Permit" or "Permit" means a written authorization granted by

the Borough to an Applicant for use of the Rights-of-Way in the Borough for

wires, lines, cables, conduits, pipes, supporting structures and other facilities.

(13) "Telecommunications" means the transmission, between or among points

specified by the user, of information of the user's choosing, without change in

form or content of the information sent and received.

(14) "Telecommunications Services" means the offering of telecommunications for

a fee directly to the public, or to users who will make telecommunications

available directly to the public, regardless of the facilities used.

(15) "Telecommunications System" means a system that offers Telecommunication

Services.

(16) "Underground equipment" means all equipment that is located wholly or

partially underneath a Right-of-Way.

installing, constructing, maintaining or operating a Telecommunications System without first

Telecommunications System as of the Effective Date of this Ordinance shall also obtain a

4.2 Before a Right-of-Way Permit is issued, the holder of or Applicant for a Rightof-

Way Permit shall have applied for any and all regulatory approvals, permits or

authorizations from the appropriate federal and state authorities. Upon the request of the

Borough, the Applicant shall submit written evidence of its applications for or receipt of all

such approvals, permits or authorizations.

4.3 Nothing in this Ordinance shall be construed as a waiver of any other

ordinances or regulations of the Borough or the Borough's right to require prospective or

current Right-of-Way Permit Holders to secure and remit payment for any and all other

5.1 A Right-of-Way Permit shall only be granted after an Applicant has completed

an Application in the form that has been prescribed by the Borough, which form may be

revised from time to time. Upon request, an Applicant shall be provided with a copy of the

information regarding the Applicant's proposed or actual physical use and occupation of the

Rights-of- Way. The Applicant shall provide specific information regarding the equipment it

proposes to place or currently maintains in the Rights-of-Way. If the completed Application

information as is necessary to enable it to make a determination regarding the physical use

5.2 Upon submission of a fully completed Application to the Borough and the

accompanying fee, the Borough shall review the Application as follows. The Borough shall

the Application, it shall provide a written response to the Applicant explaining the basis for

review the Application to determine whether such use would have a detrimental effect on

public safety as it relates to the Rights-of-Way or would place an undue physical burden on

the Rights-of-Way.

deems necessary to assist in determining whether the use proposed by the Applicant would

residents of the Borough. In the event the Borough deems it necessary to employ an outside

expert or experts to advise the Borough with respect to a particular Application, the

Holders shall apply for a renewal ofa Right-of-Way Permit at least sixty (60) days prior to its

expiration. The Borough may suspend such Right-of-Way Permit in the event anyone or

more of the following has occurred:

a. The Permit Holder shall have caused damage to Borough property or the

Right-of-Way without the prior consent of the Borough (except in the case of

an Emergency) and without completing proper Restoration;

b. The Permit Holder or the Permit Holder's equipment in the Right -of-Way has

had a detrimental effect on public safety as it relates to the Permit Holder's use

of the Rights-of-Way.

d. The Permit Holder failed to comply with construction standards in accordance

with the provisions contained in Section 11 below.

e. The Permit Holder failed to indemnify, hold harmless and insure the Borough

in accordance with the provisions contained in Section 12 below.

construction bond for the benefit of the Borough in accordance with the

provisions contained in Section 15 below.

g. The Permit Holder provided false, incomplete or misleading information on

the Right-of-Way or Construction Permit Application.

6.2 If the Borough has reason to believe that one or more of the above events has

occurred, it shall notify the Permit Holder in writing. The Permit Holder shall have thirty

(30) days to cure the violation, unless the Borough reasonably determines that the event is an

Emergency, in which case the Borough may impose a shorter time period to cure the

violation.

brought to the attention of the Borough Council at its next meeting at which time the

Borough Council shall be permitted to uphold or withdraw the suspension. The Permit

Holder shall be provided an opportunity to be heard at such meeting.

7.1 Except in the case of an Emergency, before commencing any Construction in

Construction Permit shall only be granted after an Applicant has completed an Application in

the form that has been prescribed by the Borough, which form may be revised from time to

Construction activity. Such plans shall describe: (1) the type of Construction activity; (2) the

equipment proposed to be installed or erected; (3) the specific locations of the construction

activity; and, (4) the scheduled beginning and ending dates of all planned construction.

7.2 Upon submission of all such information required in Section 7.1 above, the

Borough shall review such information and either grant or deny a Construction Permit within

sixty (60) days. If the Borough denies the Construction Permit application, the Borough will

fails to grant or deny the Construction Permit within the time period specified above, the

Application shall be deemed granted. In each case, the Borough shall review the Application

to determine whether such construction would have a detrimental impact on public safety as

it relates to the Rights-of-Way. The Borough may impose conditions on the Construction

Permit regulating the times, locations, and manner of construction to preserve effective

8.1 Each new Applicant for a Right-of-Way Permit shall include with its

Application an application fee in the amount of Five Hundred Dollars ($500). This fee is

directly related to the Borough's costs in reviewing the Application (excluding expert costs)

managing the Rights-of-Way include, but are not limited to: (1) costs of maintaining the

administrative costs related to the Rights-of- Way; and (4) inspection costs. This fee will not

be refunded in the event the Application is denied. If the Application is granted, the

Application fee will apply to the full term of the Right-of-Way Permit of one year.

8.2 Each existing Permit Holder applying for a renewal of its Right-of-Way Permit

shall include with its Application an annual fee in the amount of Two Hundred Fifty Dollars

($250). This fee is directly related to the Borough's costs in managing the Rights-of-Way

maintaining the Rights-of-Way; (2) costs of degradation of streets and Right-of-Way

property; (3) administrative costs related to the Rights-of-Way; and (4) inspection costs. This

fee will not be refunded in the event the Application is denied. If the Application is granted,

8.3 Each Applicant for a Construction Permit shall include with its Application an

application fee in the amount of One Hundred Fifty Dollars ($150). This fee is directly

related to the Borough's costs in reviewing the application and determining time, place and

manner restrictions on the construction activity. If the Application for a Construction Permit

is denied, this fee shall not be refunded. If the Application is granted, then the Applicant

shall also pay, within thirty (30) days of the presentation of a statement, the Borough's actual

costs directly related to the Applicant's Construction activity based on the hourly rate

limited to, costs of disruption and rerouting of traffic, inspection costs and administrative

costs.

Holder shall pay, within thirty (30) days ofthe presentation of a statement, any extraordinary

or unusual expenses reasonably incurred by the Borough as a result of the Permit Holder's

use of the Rights-of-Way, provided that the Borough notifies the Permit Holder of the

expected expenses prior to them being incurred and provides the Permit Holder with an

opportunity to mitigate such expenses. Examples of extraordinary or unusual costs include,

but are not limited to, the cost of obtaining and operating a backhoe, dump truck or other

statement of such expenses presented to the Permit Holder shall be directly related to the

Borough's actual costs.

Such penalty shall be in lieu of any other monetary penalty. Acceptance of payment under

this Section shall not in any way limit or waive the Borough's right to suspend or terminate

the Permit according to the terms of this Ordinance.

9.1 The Borough shall have the right to limit the placement of new or additional

equipment in the Right-of-Way if there is insufficient space to reasonably accommodate all

requests to occupy and use the Rights-of-Way. The Borough shall consider requests for

occupying and using the Rights-of-Way in the order of receipt of fully completed

Applications for Right-of-Way Permits. The Borough shall strive, to the extent possible, to

and whether such use would have a detrimental effect on public safety as it relates to the

Right-of-Way.

9.2 The Borough shall have the right to monitor the Telecommunications Systems

and the equipment related thereto located in the Rights-of-Way in order to prevent

9.3 A Permit Holder shall allow the Borough to make inspections of any part of the

Permit Holder's Telecommunications System located in the Rights-of-Way at any time upon

three (3) days notice, or, in case of an Emergency, upon demand.

pavement, sidewalk or other public property in order to perform any underground activities,

the Permit Holder will fully comply by registering with Pennsylvania's "One Call" system

pursuant to 73 P.S. §176 et seq. Such Permit Holder shall provide the Borough with

Each Permit Holder shall perform construction activity in a manner consistent and in

compliance with the detailed plans it submitted to the Borough pursuant to Section 7.1 above

and all applicable federal, state and local laws and regulations.

10.2 Whenever a Permit Holder or any of its subcontractors shall cause damage to

the Right-of-Way or to Borough property in the Right-of-Way, the Permit Holder shall

restore such Right-of-Way or property within thirty (30) days, weather permitting, of the

occurrence of the damage. In the event that the Permit Holder fails to restore the Right-of-

Way or Borough property to its former condition, the Borough may repair such damage and

10.3 The Telecommunications System shall not endanger or interfere with the safety

of persons or property within the Borough. All operating, maintenance, construction and

repair personnel shall be thoroughly trained in the safe use of all equipment and in the safe

operation of vehicles. Such personnel shall follow all safety procedures required by

applicable federal, state and local laws and regulations. The Permit Holder shall routinely

inspect and maintain all areas of the Telecommunications System so that conditions that

could develop into safety hazards shall be corrected before they become a hazard.

commencement of any construction activity, the Permit Holder shall notify nearby residents

of such construction activity in a manner that is satisfactory to the Borough. The name of the

Permit Holder shall be clearly disclosed to such residents.

10.5 All construction activity shall be performed in an orderly and workmanlike

manner, and in close coordination with public utilities serving the Borough following

accepted industry construction procedures and practices.

10.6 All wires, cables and other equipment shall be installed, where possible,

in parallel and bundles with due respect for engineering considerations.

10.7 All wires, cables and other equipment shall be installed underground where

required by municipal ordinance or regulation consistent with the same requirement being

imposed on all other similarly situated companies, including all public utilities.

11.1 A Permit Holder shall, at its sole cost and expense, indemnify, defend and hold

harmless the Borough, its elected and appointed officials, employees and agents, at all times

against any and all claims for personal injury, including death, and property damage arising

out of the Permit Holder's use or occupancy of the Rights-of-Way. A Permit Holder shall

defend any actions or proceedings against the Borough in which it is claimed that personal

injury, including death, or property damage was caused by the Permit Holder's use or

occupancy of the Rights-of-Way. The obligation to indemnify, hold harmless and defend

shall include, but not be limited to, the obligation to pay judgments, injuries, liabilities,

damages, reasonable attorneys' fees, reasonable expert fees, court costs and all other costs of

indemnification.

require all of its subcontractors to carry liability, property damage, worker's disability, and

vehicle insurance issued to the Permit Holder by an insurance company licensed to do

business in the Commonwealth of Pennsylvania in an amount and form acceptable to the

insured on its liability insurance policies for whom defense will be provided as to all such

coverages. All required insurance coverage shall provide for thirty (30) days notice to the

Borough in the event of material alteration or cancellation of such coverage prior to the

effective date of such material alteration or cancellation. A Permit Holder shall provide

appropriate insurance certificates to the Borough within thirty (30) days after the execution of

presented to the Borough shall verify that the Applicant is insured against claims for personal

injury, including death, as well as claims for property damage arising out of the Applicant's

use and occupancy of the Rights-of-Way.

11.3 In lieu of the certificate of insurance required under Section 12.2, proof of

self- insuring status that demonstrates adequate financial resources to defend and cover any

12.1 A Permit Holder shall annually provide the Borough, upon Application for

renewal of the Permit, or upon request, a current map of the locations of its existing

equipment and facilities and a summary of all additions and deletions of equipment and

facilities in the Rights-of-Way, unless no changes have occurred in the previous year. Ifno

changes have occurred in the previous year, the Permit Holder shall so inform the Borough in

writing.

12.2 A Permit Holder shall submit to the Borough such reasonable information

directly related to the Permit Holder's use and occupation of the Rights-of-Way as the

Borough as proprietary and confidential if such information is designated in good faith as

such prior to the time it is provided to the Borough.

A Right-of- Way Permit may be transferred or assigned provided that the

14.1 All Persons submitting a request for a Permit to construct or maintain a

solely for the protection of the Borough with a surety company or trust company as surety in

continuing obligation during the entire term of any Right-of-Way Permit or Construction

Permit issued in accordance herewith.

14.2 None of the provisions of this Section 14, 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 Permit Holder

under this Ordinance or any Permit issued in accordance herewith or for damages either to

the full amount of the bond or otherwise.

15.1 In addition to all other rights and powers reserved by the Borough, the

Borough reserves the right to terminate a Permit and all rights and privileges of a Permit

Holder for any of the following reasons:

with any of the material provisions of the Permit or this Ordinance;

b. A Permit Holder attempts to or does practice any fraud or deceit in its conduct

or relations with the under the Permit;

c. The Borough condemns all of the property of a Permit Holder within the

Borough by the lawful exercise of eminent domain;

d. The Permit Holder abandons the Telecommunication System.

15.2 No termination shall be effective unless and until the Borough Council shall

have adopted a Resolution setting forth the cause and reason for the termination and the

the Permit Holder and an opportunity for the Permit Holder to be heard and to present

evidence before the Borough Council on the proposed Resolution.

16.1 Upon expiration or termination of the Permit, if the Permit is not renewed, the

Permit Holder shall, upon sixty (60) days prior written notice to the Permit Holder,

commence to remove its equipment from the Rights-of-Way and shall Restore said areas. If

such removal is not completed within six (6) months of such notice, the Borough may deem

any property not removed as abandoned and the Borough may remove it at the former Permit

underground conduit or pipe which is six inches (6") or more in diameter, the Permit Holder

shall fill said conduit or pipe with material in a manner satisfactory to the Borough.

16.2 During the term of the Permit, if the Permit Holder decides to abandon or no

written notice of its abandonment at least thirty (30) days prior to such decision, which notice

shall describe the equipment and its location.

16.3 The Borough may request the Permit Holder to declare the Permit Holder's

intention as to abandonment to all or part of the Telecommunication System during the term

portions of the Telecommunications System shall be deemed abandoned.

remove the abandoned Telecommunications System in part or in total upon sixty (60) days

prior written notice to the Permit Holder. If such removal is not completed within six (6)

months of such notice, the Borough may remove it at the Permit Holder's expense.

If the Borough has reason to believe that the Permit Holder violated any of the terms

of this Ordinance, it shall notify the Permit Holder in writing of the nature of the violation

and the section ofthis Ordinance that it believes has been violated. Except in the case of an

Emergency, the Permit Holder shall have thirty (30) business days to cure the violation. If

Borough may, in its reasonable judgment, extend the time period to cure. Ifthe violation has

not been cured within the time period allowed, it shall be subsequently punishable by a fine

of up to Two Hundred Dollars ($200.00) per day until the violation is cured. In the case of

an Emergency which is discovered by the Borough or reported to the Borough, the Borough

event that the Permit Holder does not repair the Emergency within six (6) hours, the Borough

may repair the Emergency at the Permit Holder's expense.

The Borough, by granting any Permit under this Ordinance, does not waive, lessen,

impair or surrender the lawful police powers vested in the Borough under applicable federal,

state and local laws pertaining to the regulation or use of the Rights-of-Way.

If any section, subsection, sentence, clause, phrase or word of this Ordinance is for

any reason held invalid or unconstitutional by any court of competent jurisdiction, such

portion shall be deemed a separate, distinct and independent provision, and such holding

shall not render this Ordinance invalid.

The provisions of this Ordinance shall be imposed upon and enforced against all

of a Telecommunications System within the Borough.

NOW THEREFORE BE IT ENACTED that the Edinboro Borough Council does

hereby approve this Right-of-Way Ordinance, including all of the terms and conditions

contained herein.

Enacted and Ordained this 8th day of June, 2009.