Township of Park, MI
Ottawa County
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[Ord. No. 07-1, 12-13-2007]
The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
ACT
The Uniform Video Services Local Franchise Act, Public Act. No. 480 of 2007 (MCL 484.3301 et seq.).
CLAIMS
Shall have the meaning set forth in Section 30-25(a).
FACILITIES
The lines, equipment and other facilities of a permittee which use or occupy the public right-of-way in the delivery of video services in the Township.
FRANCHISE AGREEMENT
The franchise agreement entered into or possessed by a video service provider with the Township as required by Section 3(1) of the Act (MCL 484.3303(1)), if it is the standardized, uniform form of franchise agreement established by the MPSC.
MANAGER
The Township's supervisor or his designee.
METRO ACT
The Metropolitan Extension Telecommunications Rights-of-Way Oversight Act, Public Act No. 48 of 2002 (MCL 484.3101 et seq.).
METRO ACT PERMIT
A permit to use the public right-of-way issued by the Township under its ordinance implementing the Metro Act after a provider's application for same to the Township as set forth in such ordinance.
METRO AUTHORITY
The same as the term "authority" in the Metro Act.
MPSC
The Michigan Public Service Commission, and shall have the same meaning as the term "commission" in the Act and the Metro Act.
PERMITTEE
A video service provider with a currently valid franchise agreement but without a currently valid metro act permit. Upon applying to the Township for and then obtaining a Metro Act Permit from the Township, a video service provider is not a permittee and is no longer required to comply with this article. A video service provider is also not a permittee and is not required to comply with this article if it and the Township enter into a voluntary franchise agreement as described in Section 30-29(b).
PUBLIC RIGHT-OF-WAY
The same as in the Act.
STREET CONSTRUCTION and STREET RESURFACING
As set forth in Section 30-24(h).
VIDEO
The same as in the Act.
VIDEO SERVICE PROVIDER
The same as in the Act.
[Ord. No. 07-1, 12-13-2007]
(a) 
Under the Uniform Video Services Local Franchise Act, video service providers may obtain a franchise to provide video services in the Township using a standardized, uniform form of franchise agreement established by the MPSC. This form includes the right to use the public right-of-way to provide such service but does not contain right-of-way management and related provisions.
(b) 
Telecommunications providers who obtain such a standardized, uniform form of franchise agreement generally will have previously obtained from the Township a permit under the Metro Act to construct and maintain their telecommunications facilities in the public right-of-way. Such Metro Act permits set forth the terms and conditions for such right-of-way usage, standard forms of such permits were agreed to in a collaborative process between municipalities and providers that was initiated by the MPSC, and such standard forms have since been approved by the legislature and the MPSC.
(c) 
Because telecommunications providers typically provide video services over combined video and telecommunications facilities, such Metro Act permits generally provide adequate public right-of-way related protections for the Township and the public when such providers are providing video services.
(d) 
Other video service providers, in particular new providers or existing cable companies, may not have a Metro Act permit issued by the Township.
(e) 
The Uniform Video Services Local Franchise Act and the standardized, uniform franchise agreement require video service providers to comply with all valid and enforceable local regulations regarding the use and occupation of the public right-of-way in the delivery of video services, including the police powers of the franchising entity, and makes such right-of-way usage subject to the laws of the state and the police powers of the franchising entity.
(f) 
The Uniform Video Services Local Franchise Act and the standardized, uniform franchise agreement state that franchising entities shall provide video service providers with open, comparable, nondiscriminatory and competitively neutral access to the public right-of-way, and may not discriminate against a video service provider for the authorization or placement of a video service or communications network in the public right-of-way.
(g) 
The state constitution reserves reasonable control of its highways, streets, alleys and public places to local units of government.
(h) 
The purpose of this article is to promote and protect the public health, safety and welfare and exercise reasonable control over the public right-of-way by regulating the use and occupation of such rights-of-way by video service providers who have a standardized, uniform franchise but who lack a Metro Act Permit from the Township. This article does so by setting forth terms and conditions for such usage and occupation from the forms of Metro Act permit approved by the MPSC and approved by the legislature in Section 6(1) of the Metro Act (MCL 484.3106(1)), thus providing open, comparable, nondiscriminatory, and competitively neutral access to the public right-of-way and not discriminating against a video service provider for the authorization or placement of a video service or communications network in a public right-of-way.
[Ord. No. 07-1, 12-13-2007]
This article shall be interpreted and applied so as to be consistent with the Metro Act and corresponding provisions of the forms of Metro Act permit approved by the MPSC, including applicable MPSC, metro authority and court decisions and determinations relating to same.
[Ord. No. 07-1, 12-13-2007]
All permittees shall comply with this article, except that a permittee need not comply with the insurance provisions of Section 30-26 if it is maintaining the insurance required by section II.J of its franchise agreement, pertaining to incumbent video providers continuing certain insurance provided under their preceding franchise.
[Ord. No. 07-1, 12-13-2007]
(a) 
Permittee contacts. A permittee shall provide the manager with the names, addresses and the like for engineering and construction-related information for the permittee and its facilities as follows:
(1) 
The address, e-mail address, phone number and contact person (title or name) at the permittee's local office (in or near the Township).
(2) 
If the permittee's engineering drawings, as-built plans and related records for the facilities will not be located at the preceding local office, the location address, phone number and contact person (title or department) for them.
(3) 
The name, title, address, e-mail address and telephone numbers of the permittee's engineering contact person with responsibility for the design, plans and construction of the facilities.
(4) 
The address, phone number and contact person (title or department) at the permittee's home office/regional office with responsibility for engineering and construction-related aspects of the facilities.
(5) 
The permittee shall at all times provide the manager with the phone number at which a live representative of the permittee (not voicemail) can be reached 24 hours a day, seven days a week, in the event of a public emergency.
(6) 
The permittee shall notify the Township in writing pursuant to the notice provisions of the franchise agreement of any changes in the preceding information.
(b) 
Route maps. Within 90 days after the substantial completion of construction of new facilities in the Township, the permittee shall submit route maps showing the location of the facilities to the Township in the same manner and subject to the same provisions as apply to telecommunications providers under Section 6(7) and 6(8) of the Metro Act, MCL 484.3106(7) and (8).
(c) 
As-built records. The permittee, without expense to the Township, shall, upon 48 hours' notice, give the Township access to all as-built maps, records, plans and specifications showing the facilities or portions thereof in the public right-of-way. Upon request by the Township, the permittee shall inform the Township as soon as reasonably possible of any changes from previously supplied maps, records, or plans and shall mark up maps provided by the Township so as to show the location of the facilities.
[Ord. No. 07-1, 12-13-2007]
(a) 
Overlashing. The permittee shall not allow the wires or any other facilities of a third party to be overlashed to the permittee's facilities without the Township's prior written consent. The Township's right to withhold written consent is subject to the authority of the MPSC under Section 361 of the Michigan Telecommunications Act, Public Act No. 179 of 1991 (MCL 484.2361).
(b) 
No burden on public right-of-way. The permittee, its contractors, subcontractors, and the facilities shall not unduly burden or interfere with the present or future use of any of the public right-of-way. The permittee's aerial cables and wires shall be suspended so as to not endanger or injure persons or property in or about the public right-of-way. If the Township reasonably determines that any portion of the facilities constitutes an undue burden or interference, due to changed circumstances, a permittee, at its sole expense, shall modify the facilities or take such other actions as the Township may determine is in the public interest to remove or alleviate the burden, and a permittee shall do so within a reasonable time period. The Township shall attempt to require all occupants of a pole or conduit whose facilities are a burden to remove or alleviate the burden concurrently.
(c) 
No priority. This article does not establish any priority of use of the public right-of-way by the permittee over any present or future permittees or parties having agreements with the Township or franchises for such use. In the event of any dispute as to the priority of use of the public right-of-way, the first priority shall be to the public generally, the second priority to the Township, the third priority to the state and its political subdivisions in the performance of their various functions, and thereafter as between other permit, agreement or franchise holders, as determined (except as otherwise provided by law) by the Township in the exercise of its powers, including the police power and other powers reserved to and conferred on it by the state.
(d) 
Restoration of property. The permittee, its contractors and subcontractors shall immediately (subject to seasonal work restrictions) restore, at the permittee's sole expense, in a manner approved by the Township, any portion of the public right-of-way that is in any way disturbed, damaged, or injured by the construction, installation, operation, maintenance or removal of the facilities to a reasonably equivalent (or, at the permittee's option, better) condition as that which existed prior to the disturbance. In the event that the permittee, its contractors or subcontractors fail to make such repair within a reasonable time, the Township may make the repair and the permittee shall pay the costs that the Township incurred for such repair.
(e) 
Marking. The permittee shall mark its facilities installed after the effective date of the ordinance from which this article is derived as follows:
(1) 
Aerial portions of the facilities shall be marked with a marker on the permittee's lines on alternate poles which shall state the permittee's name and provide a toll-free number to call for assistance.
(2) 
Direct buried underground portions of the facilities shall have:
a. 
A conducting wire placed in the ground at least several inches above the permittee's cable if such cable is nonconductive;
b. 
A continuous colored tape with a statement to the effect that there is buried cable beneath said tape located at least several inches above the conducting wire required in subsection (e)(3) of this section; and
c. 
Stakes or other appropriate above ground markers with the permittee's name and a toll-free number indicating that there is buried cable below.
(3) 
Bored underground portions of the facilities shall have a conducting wire at the same depth as the cable and shall not be required to provide the continuous colored tape.
(4) 
Portions of the facilities located in conduit, including conduit of others used by the permittee, shall be marked at its entrance into and exit from each manhole and handhole with the permittee's name and a toll-free telephone number.
(f) 
Tree trimming. The permittee may trim trees upon and overhanging the public right-of-way so as to prevent the branches of such trees from coming into contact with the facilities, consistent with any standards adopted by the Township. The permittee shall dispose of all trimmed materials and minimize the trimming of trees to that essential to maintain the integrity of the facilities. Except in emergencies, all trimming of trees in the public right-of-way shall be approved by the manager.
(g) 
Installation and maintenance. The construction and installation of the facilities shall be performed pursuant to plans approved by the Township. The open cut of any public right-of-way shall be coordinated with the manager or manager's designee. The permittee shall install and maintain the facilities in a reasonably safe condition. If the existing poles in the public right-of-way are overburdened or unavailable for the permittee's use, or the facilities of all users of the poles are required to go underground then the permittee shall, at its expense, place such portion of its facilities underground, unless the Township approves an alternate location. The permittee may perform maintenance on the facilities without prior approval of the Township, provided that the permittee shall obtain any and all permits required by the Township in the event that any maintenance will disturb or block vehicular traffic or are otherwise required by the Township.
(h) 
Pavement cut coordination.
(1) 
The permittee shall coordinate its construction and all other work in the public right-of-way with the Township's program for street construction and rebuilding (collectively "street construction") and its program for street repaving and resurfacing, except seal coating and patching, (collectively, "street resurfacing").
(2) 
The goals of such coordination shall be to encourage the permittee to conduct all work in the public right-of-way in conjunction with or immediately prior to any street construction or street resurfacing planned by the Township.
(i) 
Compliance with laws. The permittee shall comply with all valid and enforceable federal and state statutes and regulations; and all valid and enforceable local regulations regarding the use and occupation of the public right-of-way, including the police powers of the Township; regarding the construction, installation, and maintenance of its facilities, now in force or which hereafter may be promulgated. Before any installation is commenced, the permittee shall secure all necessary permits, licenses and approvals from the Township or other governmental entity as may be required by law, including, without limitation, all utility line permits and highway permits. The Township shall not unreasonably delay or deny issuance of any such permits, licenses or approvals. The permittee shall comply in all respects with applicable codes and industry standards, including, but not limited to the national electrical safety code (latest edition adopted by the state public service commission) and the national electrical code (latest edition). The permittee shall comply with all zoning and land use ordinances and historic preservation ordinances as may exist or may hereafter be amended. This section does not constitute a waiver of the permittee's right to challenge laws, statutes, ordinances, rules or regulations now in force or established in the future.
(j) 
Street vacation. If the Township vacates or consents to the vacation of public right-of-way within its jurisdiction, and such vacation necessitates the removal and relocation of the permittee's facilities in the vacated public right-of-way, the permittee shall consent to the vacation and remove its facilities at its sole cost and expense when ordered to do so by the Township or a court of competent jurisdiction. The permittee shall relocate its facilities to such alternate route as the Township and the permittee mutually agree, applying reasonable engineering standards.
(k) 
Relocation. If the Township requests the permittee to relocate, protect, support, disconnect, or remove its facilities because of street or utility work, or other public projects. The permittee shall relocate, protect, support, disconnect, or remove its facilities, at its sole cost and expense, including, where necessary, to such alternate route as the Township and the permittee mutually agree, applying reasonable engineering standards. The work shall be completed within a reasonable time period.
(l) 
Public emergency. The Township shall have the right to sever, disrupt, dig-up or otherwise destroy facilities of the permittee if such action is necessary because of a public emergency. If reasonable to do so under the circumstances, the Township shall attempt to provide notice to the permittee. A public emergency shall be any condition which poses an immediate threat to life, health, or property caused by any natural or manmade disaster, including, but not limited to, storms, floods, fire, accidents, explosions, water main breaks, hazardous material spills, etc. The permittee shall be responsible for repair at its sole cost and expense of any of its facilities damaged pursuant to any such action taken by the Township.
(m) 
MISS DIG. If eligible to join, the permittee shall subscribe to and be a member of MISS DIG, the association of utilities formed pursuant to Public Act No. 53 of 1974 (MCL 460.701 et seq.), and shall conduct its business in conformance with the statutory provisions and regulations promulgated thereunder.
(n) 
Underground relocation. If the permittee has its facilities on poles of Consumers Energy, Detroit Edison or another electric or telecommunications provider and Consumers Energy, Detroit Edison or such other electric or telecommunications provider relocates its system underground, then the permittee shall relocate its facilities underground in the same location at the permittee's sole cost and expense.
(o) 
Identification. All personnel of the permittee and its contractors or subcontractors who have as part of their normal duties contact with the general public shall wear on their clothing a clearly visible identification card bearing the permittee's name, their name and photograph. The permittee shall account for all identification cards at all times. Every service vehicle of the permittee and its contractors or subcontractors shall be clearly identified as such to the public, such as by a magnetic sign with the permittee's name and telephone number.
[Ord. No. 07-1, 12-13-2007]
(a) 
Indemnity. The permittee shall defend, indemnify, protect, and hold harmless the Township, its officers, agents, employees, elected and appointed officials, departments, boards, and commissions from any and all claims, losses, liabilities, causes of action, demands, judgments, decrees, proceedings, and expenses of any nature (collectively "claims"), including, without limitation, attorneys' fees, arising out of or resulting from the acts or omissions of the permittee, its officers, agents, employees, contractors, successors, or assigns, but only to the extent such acts or omissions are related to the permittee's use of or installation of facilities in the public right-of-way and only to the extent of the fault or responsibility of the permittee, its officers, agents, employees, contractors, successors and assigns.
(b) 
Notice, cooperation. The Township shall notify the permittee promptly in writing of any such claims and the method and means proposed by the Township for defending or satisfying any such claims. The Township shall cooperate with the permittee in every reasonable way to facilitate the defense of any such claims. The Township shall consult with the permittee respecting the defense and satisfaction of such claims, including the selection and direction of legal counsel.
(c) 
Settlement. The Township shall not settle any claim subject to indemnification under subsections (a) and (b) of this section without the advance written consent of the permittee, which consent shall not be unreasonably withheld. The permittee shall have the right to defend or settle, at its own expense, any claim against the Township for which the permittee is responsible hereunder.
[Ord. No. 07-1, 12-13-2007]
(a) 
Coverage required. Prior to beginning any construction in or installation of the permittee's facilities in the public right-of-way, the permittee shall obtain insurance as currently established or as hereafter adopted by resolution of the Township Board from time to time and file certificates evidencing same with the Township. Such insurance shall be maintained in full force and effect until the end of the term of the franchise agreement. In the alternative, the permittee may satisfy this requirement through a program of self-insurance, acceptable to the Township, by providing reasonable evidence of its financial resources to the Township. The Township's acceptance of such self-insurance shall not be unreasonably withheld.
(b) 
Additional insured. The Township shall be named as an additional insured on all policies, other than worker's compensation and employer's liability. All insurance policies shall provide that they shall not be canceled, modified or not renewed unless the insurance carrier provides 30 days' prior written notice to the Township. The permittee shall annually provide the Township with a certificate of insurance evidencing such coverage. All insurance policies, other than environmental contamination, workers' compensation and employer's liability insurance, shall be written on an occurrence basis and not on a claims made basis.
(c) 
Qualified insurers. All insurance shall be issued by insurance carriers licensed to do business by the state or by surplus line carriers on the state insurance commission approved list of companies qualified to do business in the state. All insurance and surplus line carriers shall be rated A+ or better by A.M. Best Company.
(d) 
Deductibles. If the insurance policies required by this article are written with retainages or deductibles in excess of $50,000, they shall be approved by manager in advance in writing. The permittee shall indemnify and save harmless the Township from and against the payment of any deductible and from the payment of any premium on any insurance policy required to be furnished hereunder.
(e) 
Contractors. The permittee's contractors and subcontractors working in the Public right-of-way shall carry in full force and effect commercial general liability, environmental contamination liability, automobile liability and workers' compensation and employer liability insurance which complies with all terms of this section. In the alternative, the permittee, at the permittee's expense, may provide such coverages for any or all its contractors or subcontractors (such as by adding them to permittee's policies).
(f) 
Insurance primary. The permittee's insurance coverage shall be primary insurance with respect to the Township, its officers, agents, employees, elected and appointed officials, departments, boards, and commissions (collectively "them"). Any insurance or self-insurance maintained by any of them shall be in excess of the permittee's insurance and shall not contribute to it (where the term "insurance or self-insurance maintained by any of them" includes any contract or agreement providing any type of indemnification or defense obligation provided to, or for the benefit of them, from any source, and includes any self-insurance program or policy, or self-insured retention or deductible by, for or on behalf of them).
[Ord. No. 07-1, 12-13-2007]
The Township may require the permittee to post a bond, or letter of credit, in the amount provided in Section 15(3) of the Metro Act (MCL 484.3115(3)).
[Ord. No. 07-1, 12-13-2007]
(a) 
Definition. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
CABLE
Any wire, coaxial cable, fiber optic cable, feed wire or pull wire.
(b) 
Underground. As soon as practicable after the term of the franchise agreement expires, the permittee or its successors and assigns shall remove any underground cable or other portions of the permittee's facilities from the public right-of-way which has been installed in such a manner that it can be removed without trenching or other opening of the public right-of-way. The permittee shall not remove any underground cable or other portions of the facilities which requires trenching or other opening of the public right-of-way except with the prior written approval of manager. All removals shall be at the permittee's sole cost and expense.
(c) 
Aboveground. As soon as practicable after the expiration of the term of a franchise agreement, the permittee, or its successor or assigns at its sole cost and expense, shall, unless waived in writing by manager, remove from the public right-of-way all aboveground elements of its facilities, including, but not limited to poles, pedestal-mounted terminal boxes, and lines attached to or suspended from poles.
(d) 
Schedule. The schedule and timing of removal shall be subject to approval by manager. Unless extended by manager, removal shall be completed not later than 12 months following the expiration of the term of the franchise agreement. Portions of the permittee's facilities in the public right-of-way that are not removed within such time period shall be deemed abandoned and, at the option of the Township exercised by written notice to the permittee at the address provided for in the franchise agreement, title to the portions described in such notice shall vest in the Township.
[Ord. No. 07-1, 12-13-2007]
(a) 
Duties of permittees. Permittees shall faithfully perform all duties required by this article.
(b) 
Different terms. The Act allows local units of government and video service providers to enter into voluntary franchise agreements that include terms and conditions which are different from those required under the Act or which are different from those in the standardized, uniform form of franchise agreement established by the MPSC. The Metro Act allows municipalities and providers to mutually agree to metro act permit terms differing from those in the standard forms of Metro Act permit approved by the MPSC. Current or prospective permittees who desire terms different from those in this article, as applied to them, should request such a voluntary franchise agreement or a mutually agreed to metro act permit from the Township.
(c) 
Violations. A permittee who violates any provision of this article is responsible for a municipal civil infraction, and shall be subject to such civil infraction fines and costs as provided in the Township's ordinances or this Code. Nothing in this section shall be construed to limit the remedies available to the Township in the event of a violation by a permittee of this article.
(d) 
Authorized officials. The manager, which includes his designee, is hereby designated as the authorized official of the Township to issue municipal civil infraction citations, directing alleged violators to appear in court, or municipal civil infraction violation notices, directing alleged violators to appear at the municipal chapter violations bureau, for violations of this article, as provided by the Township's ordinances or this Code.