[Adopted 9-9-1998 by Ord. No. MC 3099; amended 4-13-1999 by Ord. No. MC 3114 (Ch. 171, Art. VII, of the 1981 Revised Code)]
As used in this article, the following terms shall have the meanings indicated:
COMMUNICATIONS SYSTEM
A fiber-optic cable system for the transmission and distribution of communication signals, including any conduit, fiber-optic cable, splicing boxes, surface markers or other facilities located within the public right-of-way.
CUSTOMER
Any person who purchases any services provided by a communications system.
GROSS REVENUES
All receipts collected by a licensee for all communications and communications-related operations and services within the Township of Irvington. Gross revenue includes revenue from the sale or lease of customers' premises equipment, installation charges, access charges paid to the licensee by other communications systems or carriers, sales and occupation surcharges to customers and the lease or resale of lines or circuit paths to third parties.
LICENSEE
The person who is issued a license in accordance with the provisions of this article.
PUBLIC RIGHT-OF-WAY
Any public street, highway, avenue, alley, bridge or sidewalk with the Township.
No person may construct a fiber-optic system in any public right-of-way, in any easement granted to a third party within any public right-of-way or within any existing conduit or structure within any public right-of-way without first obtaining a license pursuant to this article.
A. 
An application for a license shall be filed with the Township Engineer and shall include an engineering site plan showing the proposed location of the system, any manholes or overhead poles, the size, type and proposed depth of any conduit or other enclosures, the relationship of the system to all existing streets, sidewalks, poles, utilities and other improvements within the public right-of-way and any additional information which the Township Engineer may require.
B. 
The Township Engineer shall issue all licenses required by this article. He or she shall review each application and shall grant a license if the application complies with the requirements of this article and any other applicable legal requirements. In granting a license, the Township Engineer may change the proposed location of the system where necessary to avoid interference with other cables, wires, conduits, pipes, sewers or other facilities placed within the public right-of-way.
C. 
If a licensee proposes to expand, reduce, relocate or modify any portion of its system within the public right-of-way, the licensee shall file an application for an amendment of its license with Township Engineer. An application for an amendment shall include relevant new information of the type required for the initial application and shall be reviewed by the Township Engineer in the same manner as the original application. If the amendment requires only one or more connections to the main system and if the new connections will run entirely through existing underground utility conduit or ducts so as not to require any excavation in the public right-of-way, or by means of overhead wires or cables between existing utility poles, the licensee shall not be required to pay an additional administrative fee for the amendment.
A. 
No license or amendment shall be granted for any system until the required fees have been paid and a complete application approved by the Township Engineer.
B. 
The system shall be installed and constructed in accordance with the terms of the license granted by the Township Engineer.
C. 
After installation, the licensee shall file with the Township Engineer an as-built survey specifying the actual location of the system, including any manholes or overhead poles, and the licensee shall provide such signs or other economically feasible means of locating the system as may be reasonably required by the Township Engineer, including a requirement that the licensee contract with a one-call locating service or similar locating service for location of the system by the service.
D. 
If it becomes necessary to dig into or in any manner break any public right-of-way to install, construct, reconstruct, repair, operate, disconnect or remove a system, the licensee shall first obtain a permit from the Township to do so.
E. 
All technical standards governing installation, construction, reconstruction, repair, operation, disconnection and removal of a licensed system shall conform to applicable federal, state and Township regulations.
F. 
The licensee shall be responsible for repairing or reimbursing other licensed or franchised utilities or communications systems for any damage to their property caused by negligence of the licensee or its agents, employees or contractors, in connection with the installation, construction, reconstruction, repair, operation, disconnection or removal of the licensee's communications system.
G. 
No license required under this article shall be granted to install a system in any space for public use.
H. 
Failure by the licensee to comply with any of the requirements of the license or this article shall constitute grounds for termination of the license by the Township.
Upon 90 days' notice from the Township, the licensee shall protect, support or temporarily or permanently disconnect, relocate within the same or other public right-of-way, or remove any of its system when required to do so by the Township because of street or other public excavation, construction, repair, grading, traffic conditions, installation of sewers, drains, water pipes or Township-owned power or signal lines; vacation or relocation of public rights-of-way; installation or construction of any other structure by the Township or any other public agency; or any improvement which promotes the public health, safety or welfare.
A. 
As consideration for use of municipal rights-of-way, licensee shall pay the Township the following fees:
(1) 
An administrative fee of $50 upon filing the initial application and each proposed amendment to the application; and
(2) 
If the licensed communications system serves no customers within the Township of Irvington other than the licensee itself, an annual use fee which shall be the maximum of the following:
(a) 
One thousand dollars; or
(b) 
Two dollars per linear foot of route traversed by the communication line within the public right-of-way.
(3) 
If the system serves customers within the Township of Irvington other than the licensee itself, the annual use fee shall be the maximum of the fees computed in accordance with Subsection A(2)(b) or 6% of gross revenues derived by the licensee from the operation of the system within the public rights-of-way during the license year.
B. 
At the time of filing of each proposed amendment to the license increasing the length of route traversed by the communication line within the public right-of-way, the licensee shall pay to the Township Engineer an additional use fee computed in accordance with Subsection A(2)(b).
C. 
Each annual use fee payment shall be accompanied by a report on a form approved by the Business Administrator and the Legislative Research Officer. Each such report shall contain a notarized verification by the Chief Financial Officer of the licensee, and upon request by the Township, such reports shall be verified by a certified public accountant at the expense of the licensee.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
D. 
Acceptance of any use fee shall not constitute an acknowledgment that the amount paid is correct, nor shall acceptance constitute a release of any claim for additional sums due. Use fees shall be subject to audit by the Business Administrator and assessment or refund if the payment is found to be an error. If an audit results in an additional assessment, the additional payment shall be due immediately, together with interest at the rate of 8% per year calculated from the due date for the use fee in question.
E. 
The annual use fee shall be based on a license year ending on June 30, and the use fee for each license year shall be due on June 30 of each year. Interest at the rate of 8% per year on any overdue use fee shall be calculated from the due date for the use fee.
F. 
Nothing in this article shall limit the liability of the licensee for applicable federal, state and local taxes, permits, registrations and approvals.
G. 
Nothing in this article shall be construed to prevent the Township from changing any of the fees required by this section.
A. 
The licensee shall defend and indemnify the Township from liability for damages to property or injury or death to any person, including payments made under workers' compensation laws, arising from installation, construction, reconstruction, repair, operation, disconnection or removal of the licensee's communications system. Upon receipt of written notice of litigation against the Township, the licensee shall defend the same at its own expense. A judgment against the Township on account of a claim shall be conclusive as against the licensee and shall entitle the Township to recover the full amount thereof with interest and costs and attorneys' fees incurred by the Township. A right of action shall accrue on the Township as soon as judgment is rendered. The Township shall cooperate with the licensee's defense of any such claim or action.
B. 
The licensee shall purchase and maintain general liability insurance in an amount and coverage determined by the Risk Manager in conformity with written standards. The licensee shall maintain insurance coverage as long as the licensed communications system remains within the public right-of-way. The Township shall be named as an additional insured on the policy, which shall provide on its face that it may not be canceled except after at least 30 days' written notice to the Township. Immediately upon issuance of the required license, the licensee shall file with the Township Engineer a certificate of insurance, which clearly discloses on its face coverage in conformity with all of the foregoing requirements, and if requested by the Business Administrator, the licensee shall additionally submit a certified copy of the policy.
C. 
Immediately upon issuance of the required license, the licensee shall file with the Township Engineer a surety bond of an approved surety in an amount and form approved by the Township Engineer. The bond shall protect the Township from damages and costs incurred by the Township from any failure by the licensee to restore all public rights-of-way and other public property affected by the installation, construction, reconstruction, repair, operation or removal of the licensed communications system to its proper condition in accordance with Township standards. The bond shall be maintained by the licensee for as long as the system remains in place within public rights-of-way and thereafter until the licensee has satisfied in full its obligations to the Township which arise out of or pertain to the licensed communications system.
A. 
Any person who fails to secure the license required under this article or any licensee who fails to comply with the requirements of the license or this article or with any other applicable legal requirements shall, upon notification of such violation by the Township Engineer, immediately abate the violation or cause the licensee's communications system either to be removed or to be disconnected and rendered inoperative.
B. 
The Township may remove or disconnect and render inoperative any communications system used or maintained contrary to this article.
The licensee shall not transfer or assign all or any portion of its interest in any license granted pursuant to this article without prior written authorization of the Township Engineer, which authorization shall not be unreasonably withheld, conditioned, delayed or denied. For purposes of this section, a merger or corporate reorganization shall not be deemed a transfer or assignment.
A. 
The Township Engineer shall promptly send by certified mail with return receipt written notice advising each prospective licensee of any of the following:
(1) 
Action by the Township Engineer in granting or denying an application for a license.
(2) 
Notification of failure to secure or comply with a license pursuant to § 555-85 of this article.
B. 
Within three business days after receipt of any such notice from the Township Engineer, an applicant shall have the right to a hearing before the Business Administrator by filing a written appeal with the Business Administrator specifying the reasons for the appeal. At least 10 days before the date of the hearing, the Business Administrator shall notify the applicant of the hearing date. At the hearing, the applicant may be represented by legal counsel, may call witnesses and present evidence and may cross-examine adverse witnesses.
Nothing in this article shall be construed as an acquiescence in or ratification of the occupation of any public right-of-way or public places of the Township by any person now occupying the same without legal right, nor shall this article be construed as conferring the right to occupy any of the public right-of-way or public places of the Township upon any such person now illegally or without authority occupying the same.