[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:
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.
Any person who purchases any services provided by a communications
system.
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.
The person who is issued a license in accordance with the
provisions of this article.
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:
(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]
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:
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.