[HISTORY: Adopted by the Board of Supervisors of the Township of Schuylkill as indicated in article histories. Amendments noted where applicable.]
In accordance with the provisions of Section 2322 of Article XXIII of the Second Class Township Code, as amended (53 P.S. § 67322), no railroad or street railway shall hereafter be constructed upon any Township road; nor shall any railroad or street railway crossings, driveway connections, gas pipe, water pipe, electric conduits, or other piping be laid upon or in, nor shall any telephone, telegraph, or electric light or power poles, or any coal tipples or any other obstructions be erected upon or in, any portion of a Township road except under such conditions, restrictions and regulations relating to the installation and maintenance thereof, as may be prescribed in permits granted by the Township for such purpose.
The application for a permit shall be on a form prescribed by the Township and submitted to the Township in duplicate. The application shall be accompanied by a fee in accordance with the schedule of fees set forth by the Department of Transportation, for highway occupancy permits and restoration charges. In addition, the applicant shall submit two copies of a sketch showing such dimensions as the location of the intended facility, width of the traveled roadway, right-of-way lines and a dimension to the nearest intersecting street.
A permit shall be issued to the applicant after all the aforementioned requirements have been filed.
Upon completion of the work, the applicant shall give written notice thereof to the Township.
Upon completion of the work authorized by the permit, the Township shall inspect the work and, when necessary, enforce compliance with the conditions, restrictions and regulations prescribed by the permit. In addition to that inspection, the Board of Supervisors or its agents may reinspect the work not more than two years after its completion, and if any settlement of the road surface or other defect appears in the work contrary to the conditions, restrictions and regulations of the Township, the Board of Supervisors may enforce compliance therewith. In accordance with 53 P.S. § 67322, if the applicant fails to rectify a defect which presents an immediate or imminent safety or health problem within 48 hours or any other defect within 60 days after written notice from the Board of Supervisors to do so, the Board of Supervisors or its agent may do the work and impose upon the applicant the cost thereof, together with an additional 20% of such cost, which may be recovered by an action in assumpsit in the Court of Common Pleas.
Any person, firm, corporation or utility which shall violate any of the provisions of this article shall be subject, upon conviction before a Magisterial District Judge, to pay a fine of not more than $1,000 and cost of prosecution, and in default of the payment of such fine and costs to imprisonment in the county jail for not more than five days.
[Adopted 10-4-2006 by Ord. No. 2006-12]
This article shall be known as the "Schuylkill Township Rights-of-Way Ordinance."
For the purpose 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:
- A. With the 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 corporation;
- 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 grantee and/or is controlled by or is under common control with such person or entity.
- 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.
- A service which is provided to residences or businesses within the service area, but which is exempt from the provisions of this article under § 316-10B of this article.
- Any tangible asset in the public way used or required to provide a nonexempt service to residences or businesses within the service area. The following are not a facility: a railroad, street railway, gas pipe, electric conduit, electric piping, telephone pole, telegraph pole, electric light pole, electric power pole, coal tipple or obstruction to the public way.
- 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 § 316-10B 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.
- 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 Township in the service area. "Public way" shall also mean any easement now or hereafter held by the Township 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 Township, and shall include any additions thereto by annexation or other legal means.
- The Township of Schuylkill, County of Chester, Commonwealth of Pennsylvania, or the lawful successor, transferee, or assignee thereof.
Editor's Note: See 47 U.S.C. § 151 et seq.
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 a person with installation and maintenance responsibilities by lease, sublease or assignment, must register with the Township. Registration is accomplished by filing with the Township a completed provider certification in the form shown at Appendix A to this article.
Editor's Note: Appendix A is on file in the Township office.
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 article. 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.
Exemptions. This article shall not apply to the 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 artificial or 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 to or for the public.
The diverting, developing, pumping, impounding, distribution 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.
The diverting, pumping or impounding of water of the development of furnishing of hydroelectric power to or for the public.
The transportation of oxygen or nitrogen, or both, by pipeline or conduit for the public.
Not a cable system. This article does not authorize a person to provide cable service. A person seeking to provide cable service must obtain permission from the Township under separate legislation of the Township.
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.
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.
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 Township reserves the right, after providing notice to the grantee, to remove and/or repair any work done by the 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 escrow or provide a performance bond sufficient, as determined by the Township, to remove all grantee's installation if grantee terminates its use.
Trees and shrubbery. The grantee shall notify the Township 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.
Safety requirements. All such work in the public ways shall be performed in accordance with applicable safety codes and technical requirements.
Maps. Prior to beginning any construction of facilities, grantee shall provide the Township 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 Township 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 Township's GIS system. Annually thereafter, grantee shall provide a map to the Township showing the location of grantee's facilities in the public ways on a scale of 150 feet per inch or whatever standard scale the Township adopts for general use.
Excavations. Grantee may make excavations in public ways for any facility subject to obtaining excavation permits from the Township. Prior to doing such work, grantee must apply for, and obtain, appropriate permits from the Township, and/or other units of government owning or maintaining facilities which may be affected by the proposed excavation.
Reservation of Township public ways. Nothing in this article shall be construed to prevent the Township 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 Township 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 Township or other agency of government or municipal authority, the Township 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 Township or other agency of government or municipal authority due to grantee's delay.
In consideration of occupying or using the public ways under this article, grantee shall pay to the Township a rental equal to 5% of gross revenue.
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 date theretofore 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 shall bear interest as described from the date such payment was originally due.
Grantee shall save the Township, 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 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 this article and the rights granted thereunder.
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 Township. All companies will be required to be rated A-VII or better by A.M. Best or A or better by Standard and Poors. Grantee shall provide Township with proof of such insurance so required.
Companies issuing the insurance policies shall have no recourse against the Township for payment of any premiums or assessments which all are set at the sole risk of the grantee. Insurance polices obtained by grantee shall provide that the issuing company waives all right of recovery by way of subrogation against the Township in connection with any damage covered by these policies.
Grantee shall obtain and maintain, at its sole cost and expense, and file with the Township, 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.
No action, proceeding or exercise of a right with respect to such bond shall affect the Township's rights to demand full and faithful performance under this article or limit grantee's liability for damages.
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 polices 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 Township."
Neither the provisions of this article nor any insurance accepted by the Township pursuant hereto, nor any damages recovered by the Township thereunder, shall be construed to excuse faithful performance by the grantee and/or limit the liability of the grantee under this article issued hereunder and/or for damages, either to the full amount of the bond or otherwise.
General. In addition to all other rights, remedies and powers reserved and/or retained by the Township under this article or otherwise, the Township reserves the right to bring a civil action to collect any sums due to Township 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.
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 Township, pay a fine of $600 plus all court costs, including reasonable attorneys' fees incurred by Township. 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 Township also may enforce this article 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 Township. The grantee shall comply with all lawful ordinances, codes, laws, rules and regulations of the Township, County of Chester, Commonwealth of Pennsylvania, and the United States of America which are now in effect or hereafter enacted. Grantee shall furnish to the Township prior to construction such information regarding its installation, including environmental and aesthetics, such as to enable the Township to determine whether to authorize the proposed use.
Conflict. Whenever the requirements of this article are in conflict with other requirements of the ordinances of the Township of Schuylkill 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 Township at law or equity now or henceforth existing to proceed versus grantee for enforcement of this article or violation of this article or ordinances of the Township.