[Ord. 570, 6/8/2009, § 1]
1. The purpose of this "Rights-of-Way Ordinance" is to:
A. Assist the Borough in managing its public rights-of-way with respect
to telecommunications services providers in accordance with applicable
law.
B. Regulate the erection, construction, reconstruction, installation,
operation, maintenance, repair and removal of a telecommunications
system in, upon, along, across, above, over, under or in any manner
connected with the public rights-of-way, of the Borough, as now or
in the future may exist.
C. 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 regulating providers of telecommunications
services consistent with this Part and applicable law.
[Ord. 570, 6/8/2009, § 2]
1. The Borough Manager, or the Borough Manager's designated representative,
shall serve as the single point of contact within the Borough for
all persons regulated under this Part.
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 Edinboro Borough Code of Ordinances.
3. The Borough Manager shall coordinate the preparation of all policies
and forms as necessary for the implementation of this Part with the
approval of the Borough Council.
[Ord. 570, 6/8/2009, § 3]
Unless the context specifically indicates otherwise, the meaning
of the terms used in this Part shall be as follows:
APPLICANT
The person who has applied for a right-of-way permit or a
construction permit.
APPLICATION
The form prescribed by the Borough, which the applicant must
complete in order to obtain a right-of-way or construction permit.
CONSTRUCTION
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.
CONSTRUCTION PERMIT
The written authorization granted by the Borough to an applicant
in order to perform construction in a right-of-way.
EMERGENCY
A condition that poses a clear and immediate danger to life
or health, or significant loss of property.
EQUIPMENT
Any tangible property located or proposed to be located in
a right-of-way, including, but not be limited to, wires, lines, cables,
conduits, pipes, supporting structures or other facilities.
MAINTENANCE
Work of a minor nature that will keep an existing condition
from failure or decline.
PERSON
Any individual, firm, partnership, association, corporation,
company or other business entity.
RESTORE or RESTORATION
The process by which a right-of-way is returned to a state
that is as good or better as its condition before construction.
RIGHT-OF-WAY or PUBLIC RIGHT-OF-WAY
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.
RIGHT-OF-WAY PERMIT or PERMIT
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.
TELECOMMUNICATIONS
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.
TELECOMMUNICATIONS SERVICES
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.
[Ord. 570, 6/8/2009, § 4]
1. Person shall enter upon or occupy any right-of-way for the purpose
of installing, constructing, maintaining or operating a telecommunications
system without first having obtained a right-of-way permit. Any person
maintaining or operating a telecommunications system as of the effective
date of this Part shall also obtain a right-of-way permit.
2. Before a right-of-way permit is issued, the holder of or applicant
for a right-of-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.
3. Nothing in this Part 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 required permits or authorizations.
[Ord. 570, 6/8/2009, § 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 then current application
for a right-of-way permit. The application shall request 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 does
not fully provide such requested information, the Borough may request
such additional information as is necessary to enable it to make a
determination regarding the physical use and occupation of the rights-of-way
by the applicant. The application may request less information from
a permit holder applying for a renewal of a right-of-way permit.
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 grant or deny such applications within
60 days of its receipt. If the Borough denies the application, it
shall provide a written response to the applicant explaining the basis
for denial. If the Borough fails to grant or reject such application
within the time period specified above, the application shall be deemed
approved. In each case, the Borough shall 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.
3. In considering an application, the Borough may use such outside experts
as it deems necessary to assist in determining whether the use proposed
by the applicant would have a detrimental effect on the right-of-way
or the health, safety and/or welfare of the 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 reasonable costs of such expert or experts shall be borne by the
applicant.
[Ord. 570, 6/8/2009, § 6]
1. The right-of-way permit shall be issued for a period of one year.
Permit holders shall apply for a renewal of a right-of-way permit
at least 60 days prior to its expiration. The Borough may suspend
such right-of-way permit in the event any one 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.
C. The permit holder failed to pay any of the fees required under this
Part.
D. The permit holder failed to comply with construction standards in accordance with the provisions contained in §
21-311 below.
E. The permit holder failed to indemnify, hold harmless and insure the Borough in accordance with the provisions contained in §
21-312 below.
F. The permit holder failed to procure and/or maintain a performance or construction bond for the benefit of the Borough in accordance with the provisions contained in §
21-315 below.
G. The permit holder provided false, incomplete or misleading information
on the right-of-way or construction permit application.
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 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.
3. If the permit holder fails to cure the violation within the specified
time period, the Borough may immediately suspend the right-of-way
permit. A suspension shall be 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.
[Ord. 570, 6/8/2009, § 7]
1. Except in the case of an emergency, before commencing any construction
in the rights-of-way, a person shall apply for and obtain a construction
permit. A 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 time. Upon
request, an applicant shall be provided with a copy of the current
application for a construction permit. Such application shall request
detailed plans of the proposed construction activity. Such plans shall
describe:
A. The type
of construction activity;
B. The equipment
proposed to be installed or erected;
C. The specific
locations of the construction activity; and
D. The scheduled
beginning and ending dates of all planned construction.
2. Upon submission of all such information required in Subsection
1 above, the Borough shall review such information and either grant or deny a construction permit within 60 days. If the Borough denies the construction permit application, the Borough will provide a written response to the applicant explaining the basis of the denial. If the Borough 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 traffic flow, prevent hazardous road conditions and/or minimize noise impacts.
[Ord. 570, 6/8/2009, § 8; as amended by Ord. 585,
9/12/2011]
1. Each new applicant for a right-of-way permit shall include with its
application an application fee in the amount as established from time
to time by resolution of Borough Council. This fee is directly related
to the Borough's costs in reviewing the application (excluding
expert costs) and managing the rights-of-way with respect to each
permit holder. Such costs in managing the rights-of-way include, but
are not limited to: (A) costs of maintaining the rights-of-way; (B)
costs of degradation of streets and right-of-way property; (C) administrative
costs related to the rights-of-way; and (D) 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.
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
as established from time to time by resolution of Borough Council.
This fee is directly related to the Borough's costs in managing
the rights-of-way with respect to each permit holder. Such costs include,
but are not limited to: (A) costs of maintaining the rights-of-way;
(B) costs of degradation of streets and right-of-way property; (C)
administrative costs related to the rights-of-way; and (D) 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.
3. Each applicant for a construction permit shall include with its application
an application fee in the amount as established from time to time
by resolution of Borough Council. 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 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 established by resolution
of the Borough Council. Such actual costs include, but are not limited
to, costs of disruption and rerouting of traffic, inspection costs
and administrative costs.
4. Extraordinary Expenses. In addition to the fees set forth above,
a permit holder shall pay, within 30 days of the 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
heavy equipment used to repair the right-of-way, overtime or special
pay for public safety personnel and/or the cost of hazardous waste
cleanup or other emergency services. The statement of such expenses
presented to the permit holder shall be directly related to the Borough's
actual costs.
5. In the event that payment of any of the fees identified above is
not made upon submission of the application or by the date due, the
applicant or permit holder shall pay a late payment penalty of interest
at 2% per month of the total amount past due. 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 Part.
[Ord. 570, 6/8/2009, § 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 accommodate all requests, but shall be guided
by the physical condition of the right-of-way and whether such use
would have a detrimental effect on public safety as it relates to
the right-of-way.
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 interference between and among such systems and
equipment.
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 days' notice, or,
in case of an emergency, upon demand.
[Ord. 570, 6/8/2009, § 10]
1. Whenever a permit holder or any of its subcontractors shall disturb any 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 information showing planned locations and reference points for equipment to be installed. 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 §
21-307, Subsection
1, above and all applicable federal, state and local laws and regulations.
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
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 assess all such costs of such repair to the permit holder.
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.
4. Except in the case of an emergency, at least three days prior to
the 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.
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.
6. All wires, cables and other equipment shall be installed, where possible,
parallel with electric and telephone lines, and multiple cable configurations
shall be arranged in parallel and bundles with due respect for engineering
considerations.
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.
[Ord. 570, 6/8/2009, § 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.
2. A permit holder shall, at all times during the life of a permit,
carry itself and 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 Borough as set forth in the permit. A permit holder shall name
the Borough as an additional insured on its liability insurance policies
for whom defense will be provided as to all such coverages. All required
insurance coverage shall provide for 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 30 days after the execution of a permit and annually
with an application for a renewal permit. Any certificate of insurance
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.
3. In lieu of the certificate of insurance required under §
21-312, Subsection
2, proof of self-insuring status that demonstrates adequate financial resources to defend and cover any and all potential claims will be acceptable to the Borough.
[Ord. 570, 6/8/2009, § 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. If no changes have
occurred in the previous year, the permit holder shall so inform the
Borough in writing.
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 may request. All information provided
to the Borough shall be maintained by 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.
[Ord. 570, 6/8/2009, § 13]
A right-of-way permit may be transferred or assigned provided
that the transferee/assignee agrees in writing, prior to the transfer
or assignment, to comply with all of the obligations and requirements
contained in this Part. The transferee/assignee shall notify the Borough
in writing at least 30 days prior to the transfer or assignment.
[Ord. 570, 6/8/2009, § 14]
1. All persons submitting a request for a permit to construct or maintain
a telecommunications system in accordance herewith shall file with
their request a bond solely for the protection of the Borough with
a surety company or trust company as surety in an amount determined
by the Borough Council. The bond shall ensure the permit holder's
faithful performance of its obligations contained in this Part. The
bond shall be a continuing obligation during the entire term of any
right-of-way permit or construction permit issued in accordance herewith.
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 permit holder under this Part or any
permit issued in accordance herewith or for damages either to the
full amount of the bond or otherwise.
[Ord. 570, 6/8/2009, § 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:
A. A permit holder fails, after 30 days' prior written notice,
to comply with any of the material provisions of the permit or this
Part.
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.
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 effective date, which resolution shall
not be adopted without 30 days' prior notice to 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.
[Ord. 570, 6/8/2009, § 16]
1. Upon expiration or termination of the permit, if the permit is not
renewed, the permit holder shall, upon 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 months of such notice, the Borough may deem
any property not removed as abandoned and the Borough may remove it
at the former permit holder's expense. In the event that the
permit holder installed and/or operated any underground conduit or
pipe which is six inches or more in diameter, the permit holder shall
fill said conduit or pipe with material in a manner satisfactory to
the Borough.
2. During the term of the permit, if the permit holder decides to abandon
or no longer use all or part of its telecommunications system, it
shall provide the Borough with written notice of its abandonment at
least 30 days prior to such decision, which notice shall describe
the equipment and its location.
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 of the permit. The permit holder shall respond
to such request within 60 days or such portions of the telecommunications
system shall be deemed abandoned.
4. The Borough shall have the right to require the permit holder to
commence to remove the abandoned telecommunications system in part
or in total upon 60 days' prior written notice to the permit
holder. If such removal is not completed within six months of such
notice, the Borough may remove it at the permit holder's expense.
[Ord. 570, 6/8/2009, § 17]
If the Borough has reason to believe that the permit holder
violated any of the terms of this Part, it shall notify the permit
holder in writing of the nature of the violation and the section of
this Part that it believes has been violated. Except in the case of
an emergency, the permit holder shall have 30 business days to cure
the violation. If the nature of the violation is such that it cannot
be fully cured within such time period, the Borough may, in its reasonable
judgment, extend the time period to cure. If the violation has not
been cured within the time period allowed, it shall be subsequently
punishable by a fine of up to $200 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 shall notify the permit holder's
via the permit holder's emergency telephone number. In the event
that the permit holder does not repair the emergency within six hours,
the Borough may repair the emergency at the permit holder's expense.
[Ord. 570, 6/8/2009, § 18]
The Borough, by granting any permit under this Part, 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.
[Ord. 570, 6/8/2009, § 20]
The provisions of this Part shall be imposed upon and enforced
against all persons requiring a permit for the provision of telecommunications
services or construction of a telecommunications system within the
Borough.