[Ord. of 11-17-1998, § 1]
(a)
The purpose of this article is to regulate the access to and ongoing
use of public rights-of-way by telecommunications providers to ensure
and protect the public health, safety and welfare, and to exercise
reasonable control of the public rights-of-way pursuant to the City
Charter, the Michigan Telecommunications Act (Public Act No. 179 of
1991 (MCL 484.2101 et seq.) and other state statutes, including, but
not limited to, MCL 247.183 and Mich. Const. Art. VII, § 29
by:
(1)
Minimizing
disruption of the public rights-of-way by regulating the access to
and ongoing use of the public rights-of-way by telecommunications
providers, and the construction and installation of facilities in
the public rights-of-way to provide telecommunication services;
(2)
Ensuring
that the City and the public are protected from liability for use
of the public rights-of-way by telecommunications providers;
(3)
Providing
for the payment of nondiscriminatory permit fees which do not exceed
the fixed and variable costs of granting permits and maintaining the
rights-of-way used by telecommunications providers; and
(4)
Assisting
telecommunications providers in understanding the City's requirements
for use of the public rights-of-way, and providing a fair and nondiscriminatory
policy for permitting the use of the public rights-of-way by such
providers.
[Ord. of 11-17-1998, § 2]
(a)
The issuance of a permit under this article and the access to and
use of the public rights-of-way by a telecommunications provider shall
not constitute a waiver of or otherwise adversely affect the following
reserved rights:
(1)
Right to require a franchise. Mich. Const. Art. VII, § 29,
and the City Charter require that all public utilities obtain a franchise
to conduct a local business within the City. The applicability of
this requirement to telecommunications providers may be challenged
under Section 102(dd) of the Michigan Telecommunications Act (MCL
484.2102(dd)) which purports to define telecommunications services
as not constituting public utility services. Due to this and other
legal and regulatory issues, and to avoid the expense and delay of
litigation that may be unnecessary, the City determines that telecommunications
providers shall not be required at this time to obtain franchises
for the transaction of local business within the City. Telecommunications
providers shall be required to obtain and maintain a permit for access
to and ongoing use of the public rights-of-way, and to otherwise comply
with the terms of this article. Such permit shall not constitute a
franchise. The City reserves the right to require telecommunications
providers to obtain a franchise in the future to transact local business
within the City.
(2)
Rights regarding takings claim. Certain cable or telecommunications providers have initiated or supported legal proceedings in which they contend that federal law grants them the right to physically occupy the rights-of-way and other property of a municipality for the purpose of providing telecommunications service without compensating the municipality for the use or value of the property so occupied or the cost of acquiring and maintaining such property. Municipalities dispute such claim. The City believes that if such a claim were sustained it would, among other things, constitute an unlawful taking by the United States in violation of the Fifth Amendment to the United States Constitution. The legal issues involved in such disputes have not been finally decided. The City desires to act on applications for permits granting access to its public rights-of-way at this time rather than wait for determination of these issues, provided this can be done without waiver or loss of any rights of the City or a permittee. Therefore, notwithstanding any other provision of this article, a permittee is not precluded by this article from seeking relief from the fee provisions of § 34-81 from any court or agency of competent jurisdiction. If a permittee seeks such relief, the City reserves the right to assert a takings claim, and to take all action it deems necessary in support of such action. Neither this article, nor the issuance or acceptance of a permit under this article, constitutes or will be claimed to constitute, a waiver or relinquishment of any rights or defenses of either the City or the permittee in connection with the disputed issues, and the acceptance of a permit constitutes an acknowledgment and agreement thereto by the permittee.
(3)
Option to obtain consent agreement. The City finds that legislative,
legal and regulatory issues in connection with use of the public rights-of-way
by telecommunications providers and the resulting potential for litigation
and delay are likely to have an adverse affect on the development
of a healthy, competitive telecommunications infrastructure in the
City. This would be detrimental to the City and its residents, as
well as to the telecommunications providers. The issues affect, among
other things, both the cost to telecommunications providers and compensation
to the City for the maintenance and use of its public rights-of-way.
In order to promote certainty, encourage competition and avoid litigation,
the City will, at the request and sole option of an applicant or permittee,
consider entering into a consent agreement for use of the public rights-of-way
for the provision of telecommunications services on terms and conditions
mutually acceptable to the City and the telecommunications provider.
It is the City's intent that such an agreement would satisfy
the requirement for a permit under this article, and would include,
among other things, the permit fee; an extended term of up to 15 years;
authorization to conduct a local business in the City pursuant to
Mich. Const. Art. VII, § 29; and a covenant to abide by
the terms of the agreement as a compromise of disputed issues and
uncertain outcomes, notwithstanding the resolution of these legislative,
regulatory and legal requirements in the future. A permittee may request
a consent agreement at any time.
[Ord. of 11-17-1998, § 3]
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:
Any entity controlling, controlled by or under common control
with a permittee.
The City Council of the City of Ithaca or its designee. This
article does not authorize delegation of any decision or function
that is required by law to be made by the City Council. In any case
in which a hearing is held pursuant to this article, the City Council
may conduct the hearing or, in its sole discretion, may by resolution
appoint a committee or subcommittee of the City Council or a hearing
officer to conduct the hearing and submit a proposal for a decision
to it pursuant to procedures established by resolution.
Effective control, by whatever means exercised, such as those
described in the Report and Order and Further Notice of Proposed Rule
Making in MM Docket 92-264, 8 FCC Rcd 6828 (1993) at Paragraphs 22
— 28 (adopting broadcast transfer of control standards as then
in effect).
The provision of an access line and usage within a local
calling area for the transmission of high quality two-way interactive
switched voice or data communication.
A nonexclusive permit issued pursuant to this article for
access to and ongoing use of public rights-of-way by telecommunications
providers for wires, poles, pipes, conduits or other facilities designed
or used to provide telecommunications services. This term does not
include any other permits, licenses or approvals required by the City
or other governmental entities.
A telecommunications provider which has been issued a permit
pursuant to this article.
The public rights-of-way, easements, highways, streets and
alleys within the City.
Public Act No. 179 of 1991 (MCL 484.2101 et seq.).
A person who provides one or more telecommunications services
for compensation.
Regulated and unregulated services offered to customers for
the transmission of two-way interactive communication and associated
usage. This term does not include one-way transmission to subscribers
of video programming or other programming services and subscriber
interaction for the selection of video programming or other programming
services. A telecommunications service is not a public utility service.
Facilities designed or used to provide telecommunications
services.
Programming provided by, or generally considered comparable
to programming provided by, a television broadcast station.
[Ord. of 11-17-1998, § 4]
(a)
Required. No person shall use the public rights-of-way to provide telecommunications services without a permit issued pursuant to this article. For purposes of this article, use of the public rights-of-way includes the installation, construction, maintenance or repair of a telecommunications system within the public rights-of-way. Failure to comply with the permit requirements set forth in this section shall constitute a violation of this article. A person who violates the requirements of this section shall comply with all requirements of this article applicable to a permittee and shall pay the annual fee, plus late payment charges, as provided in § 34-81 for the time period in which the violator did not have a permit, plus the actual costs incurred by the City in enforcing this article against such person. Receipt of a permit under this article does not supersede a permittee's obligation to obtain all other necessary permits or authorizations under any applicable City ordinance, resolution, regulation or policy.
(b)
Consent agreement. If a telecommunications provider negotiates a
consent agreement with the City under the provisions of § 34-77(a)(3),
and the City determines that the consent agreement substantially satisfies
the obligations of a telecommunications provider under this article,
giving due regard to any special circumstances involving the telecommunications
provider, the consent agreement will be deemed to satisfy the requirement
of a permit under this article and under the Telecommunications Act.
When a consent agreement is no longer in effect, the telecommunications
provider shall be required to comply with all terms and conditions
of this article as amended from time to time.
[Ord. of 11-17-1998, § 5]
(a)
Form. A telecommunications provider shall apply for a permit pursuant
to this article. The application shall be made on an application form
provided by the City. Three copies of the application shall be filed
with the City Clerk, and two additional copies each shall simultaneously
be filed with the City Manager and City Attorney.
(b)
Required information. In addition to other information required by
the application form, or otherwise required by the City or this article,
the permit application shall include, but not be limited to, the following
information:
(1)
The name and address of the applicant and each person exercising
control over the applicant, and if the applicant or any person exercising
control is not a natural person, each of its officers, directors and
stockholders beneficially holding more than 25% of the outstanding
voting shares, or the managers, general partners, limited partners
and/or members holding an equity interest of more than 25%.
(2)
Copies of the most recent financial statements of the applicant.
(3)
A description of the applicant's existing and proposed
telecommunications system and telecommunications services in the City,
the types of existing and proposed wires and other facilities in the
public rights-of-way, a general description of the applicant's
existing and proposed telecommunications system and telecommunications
services in the City and the type of existing and proposed wires and
other facilities proposed to be placed in the public rights-of-way.
(4)
A map setting forth the specific location of the facilities
in the public rights-of-way. The map shall completely and accurately
identify the location and dimensions of aboveground and underground
facilities in sufficient detail to the satisfaction of the City Manager
or his designee.
(5)
Proof of applicable federal and state authority, if needed,
to operate a telecommunications system in the City.
(c)
Application fee. The permit application shall be accompanied by a
nonrefundable application fee in an amount established by ordinance
or resolution of the City Council. The nonrefundable application fee
shall be designed to reimburse the City for the costs of reviewing
a permit application and issuance of a permit in accordance with the
procedures set forth in this article.
(d)
Administrative completeness. An permit application shall not be deemed
to be filed for purposes of the ninety-day permit application review
period in Section 251(3) of the Telecommunications Act (MCL 484.2251(3))
unless and until the application is determined by the City Manager
to be administratively complete. A determination whether the application
is administratively complete shall be made by the City Manager within
15 business days after the application is received by the City. If
the City Manager determines that the application is not administratively
complete, he shall advise the applicant in writing of such determination
and shall identify the items which must be furnished by the applicant
for an administratively complete application.
(e)
Additional information.
(1)
The City Manager may request an applicant for a permit under
this article to submit such additional information which the City
Manager deems reasonably necessary or relevant to review the application.
The applicant shall comply with all such requests in compliance with
reasonable deadlines for such additional information established by
the City Manager. If the applicant fails to provide the additional
information requested by the deadline established by the City Manager,
the ninety-day period for acting on the application as set forth in
Subsection (f) of this section shall be extended by the number of
days after the deadline that the information was provided to the City
Manager.
(2)
A person who provides information to the City in connection with a permit application or any other matters under this subsection which contains an untrue statement of a material fact or omits a material fact necessary to make the information not misleading shall be in violation of this article, and shall be subject to all remedies for violation of this article including, but not limited to, denial of the requested action and permit revocation pursuant to § 34-88. Each day that a person fails to correct an untrue statement of a material fact or the omission of a material fact necessary to make the information not misleading shall constitute a separate violation of this article.
(f)
Approval or denial. Within 75 days after the City Manager determines that the application is administratively complete, subject to any adjustments for delays in providing additional information as provided for in Subsection (e) of this section, the City Council shall hold a public hearing on the application. Notice of the public hearing shall be published in a newspaper in general circulation not less than 10 days before the public hearing. Notice of the public hearing shall also be mailed to the applicant not less than 10 days before the public hearing. Any report or recommendation on the application obtained or prepared by the City Manager shall be mailed to the applicant not less than 10 days before the public hearing. The applicant and any other interested parties may appear in person, by agent or by letter at such hearing to submit comments on the application. Following the public hearing, the City Council shall approve, approve with conditions or deny the application within 90 days after the City Manager has determined that the application is administratively complete pursuant to Subsection (d) of this section, subject to any adjustments for delays in providing additional information as provided in Subsection (e) of this section. The City Council shall not unreasonably deny an application for a permit. The failure of the City to strictly comply with the procedural requirements of this section for the review of permit applications shall not invalidate the decision or proceedings of the City.
(g)
Conditions. The City Council may impose conditions on a permit to
protect the public health, safety and welfare. Without limitation,
such conditions may include the posting of a bond by the telecommunications
provider in an amount which shall not exceed the reasonable cost to
ensure that the public rights-of-way are returned to their original
condition during and after the telecommunications provider's
access and use. The City Council may require a telecommunications
provider to maintain a letter of credit, cash bond or other financial
guarantee with a local financial institution in an amount proportionate
to the size of such telecommunications provider's system, including
approved expansions, if any, but not in excess of the reasonable cost
to ensure that the public rights-of-way are returned to their original
condition, which can be drawn upon by the City due to the telecommunications
provider's failure to cure, to the reasonable satisfaction of
the City Manager or his designee, any violation of this article, or
breach or default under a permit, after 30 days' notice.
(h)
Modification. The City Council may, in its discretion, grant a modification to a specific requirement set forth in § 34-82, 34-83, 34-84 or 34-86 if the applicant requests such modification in its application for a permit, and if the applicant demonstrates that:
(1)
There are circumstances which warrant a modification;
(2)
The modification will not be detrimental to the public health,
safety and welfare; and
(3)
The modification will not impair the intent and purposes of
this article and its several sections.
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The application shall describe the applicant's request
for a modification and the reasons for the request with specificity.
A modification granted by the City Council pursuant to this section
shall expire upon the expiration of the permit or earlier, as determined
by the City Council. A modification shall modify only those requirements
expressly set forth in the approval of the City Council, and shall
not modify any other provisions of this article. If a request for
a modification is denied by the City Council, the telecommunications
provider shall comply with all requirements of this article without
exception.
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(i)
Waiver. The City Council shall grant a waiver of any requirement of this article, except § 34-83(a), (c), (f) — (h), if an applicant or permittee requests a waiver and the City Council finds that:
(1)
Unless waived, the requirement will prohibit or have the effect
of prohibiting the ability of the applicant or permittee to provide
a telecommunications service within the meaning of Section 253(a)
of the Federal Telecommunications Act, 47 U.S.C. § 253(a);
(2)
The requirement is not within the scope of any state or local
authority referenced in Section 253(c) of the Federal Telecommunications
Act, 47 U.S.C. § 253(c); and
(3)
The requirement is not necessary to protect the public safety
and welfare or safeguard the rights of consumers.
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A request for a waiver may be included in an application for
a permit. A request for a waiver shall include a detailed statement
of the facts and circumstances forming the basis for the request.
If the request is made in connection with an application for a permit,
the provisions of Subsection (d) through (g) of this section shall
apply to the request, except that submission of a request for a waiver
shall constitute consent that the time periods provided in Subsection
(f) of this section for holding a public hearing and acting on an
application are extended by 90 days. Subsections (a), (c) and (g)
of this section shall apply to a waiver request that is not made in
connection with a permit application, and the request may be denied
for violation of or failure to comply with any of those provisions.
Subsection (f) of this section shall also apply to such a request,
with the exception of the seventy-five- and ninety-day time periods
set forth in such section, but the City Council may, by resolution,
establish different or additional procedures for conducting the public
hearing and acting on the request.
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[Ord. of 11-17-1998, § 6]
(a)
Establishment. In addition to the nonrefundable application fee as set forth in § 34-80(c), and any other fees for other permits or authorizations required by the City, a permittee under this article shall pay an annual fee in an amount established and modified from time to time by ordinance or resolution of the City Council. The amount of the annual fee shall not exceed the fixed and variable costs to the City in maintaining the public rights-of-way used by a telecommunications provider, unless otherwise permitted by law. The annual fee shall be payable quarterly, as follows:
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Quarter
|
Fee Payable
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|---|---|
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First quarter (January 1 — March 31)
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April 30
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Second quarter (April 1 — June 30)
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July 31
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Third quarter (July 1 — September 30)
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October 31
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Fourth quarter (October 1 — December 31)
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January 31
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When a permit is issued during a calendar year, the annual fee
shall be prorated for the balance of the calendar year. If a quarterly
payment is not paid when due, the permittee shall pay a late payment
charge of the greater of $100 or interest at the rate of 1% over the
prime rate then charged by First Bank, and computed monthly. A person
who violates this article by failing to obtain a permit shall pay
the annual fee, plus late payment charges, as required by this section,
for the time period in which the violator did not have a permit, plus
the actual costs of the City in enforcing this article against such
person.
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(b)
Records. All records, including those of affiliates, which are reasonably necessary to verify the accuracy of annual fees paid by the permittee under Subsection (a) of this section shall be made available by a permittee at a location within the City or within 20 miles of the City's boundaries. The City, by itself or in combination with other municipalities, reserves the right to audit a permittee or its affiliate to verify the accuracy of annual fees paid or to be paid to the City. Any additional amount due the City shall be paid within 30 days of submission of an invoice. If the additional amount due exceeds 2% of the total annual fee which the audit determines should have been paid for a calendar year, the permittee shall pay the City's costs in connection with the audit within 30 days of submission of an invoice.
(c)
Other payments.
(1)
The nonrefundable application fees and annual fees established
pursuant to this article shall be in addition to any tax, charge,
fee or payment due, or to become due, to the City by a permittee under
any City ordinance or the laws of the state.
(2)
A person who provides information to the City in connection with any matter under this section which contains an untrue statement of a material fact, or omits a material fact necessary to make the information not misleading, shall be in violation of this article, and shall be subject to all remedies for violation of this article including, but not limited to, permit revocation pursuant to § 34-88. Each day that a person fails to correct an untrue statement of a material fact, or the omission of a material fact necessary to make the information not misleading, shall constitute a separate violation of this article.
[Ord. of 11-17-1998, § 7]
A permit issued under this article shall remain in effect until June 30 following the ten-year anniversary from the date of the issuance of the permit, unless the permit expires pursuant to § 34-83(j), or the permit is revoked earlier pursuant to § 34-88. Applications for renewal of permits shall be filed in the same manner as original applications as set forth in § 34-81, and shall be filed with the City not less than 120 days before the expiration of the permit. The City expressly reserves all rights to approve, approve with conditions or deny applications for permit renewals pursuant to this article and to impose additional conditions on renewed permits.
[Ord. of 11-17-1998, § 8]
(a)
Nonexclusive; additional permits. A permit under this article shall
be nonexclusive. The City expressly reserves the right to approve,
at any time, additional permits for access to and ongoing use of the
public rights-of-way by telecommunications providers, and to enter
into agreements and grant franchises for such access and use. The
issuance of additional permits, entry into agreements or the grant
of franchises shall not be deemed to amend, modify, revoke or terminate
the terms and conditions of any permits previously issued to telecommunication
providers.
(b)
Expansion requests. A permit under this article approved by the City
Council shall authorize access to and ongoing use of the public rights-of-way
described in the permit, subject to compliance with the conditions
of the permit, the requirements of this article and any other applicable
requirements of a City ordinance or applicable state and federal law.
The permittee shall not use any public rights-of-way not expressly
authorized by the permit. Any use of the public rights-of-way, including
any installation, construction, maintenance or repair of a telecommunication
system within the public rights-of-way, to provide telecommunications
services shall be performed only as authorized by the permit. A permittee
may, however, expand or modify its telecommunications system to public
rights-of-ways not described in its permit by obtaining approval of
an amended permit from the City. Such approval may be granted in writing
by the City Manager in response to a written request from the permittee
for expansion or modification to specific portions of named public
rights-of-way. The City Council may establish, by resolution, a nonrefundable
application fee for such a request. Within one week, the City Manager
may grant, grant with conditions or deny such request. The City Manager
shall not unreasonably deny any request for an amended permit. A denial
of any request may be appealed to the City Council, which shall make
the final decision on such request. Any expansion or modification
into additional public rights-of-way shall be subject to all terms
and conditions of the original permit and this article including,
but not limited to, the application of the annual fee to the expanded
or modified public rights-of-way used by the permittee.
(c)
Construction permit. A permittee under this article shall not commence
construction, excavation, street opening, tree trimming or maintenance
of, upon, over, across or under the public rights-of-way in the City
without first obtaining all necessary construction, excavation, street
opening, tree trimming or other applicable permits as required under
applicable City ordinances for construction, excavation, street opening,
tree trimming or maintenance within the public rights-of-way.
(d)
Lease or use of facilities; overlashing. A permittee under this article
shall not lease, sublease, license or otherwise allow the use of wires,
conduits, poles or facilities in the public rights-of-way by a person
without securing from such person a representation that he has secured
all necessary governmental approvals required to occupy space in the
public right-of-way. A permittee shall not allow the property of a
third party or nontelecommunications system wires or any other facilities
to be overlashed, affixed or attached to any portion of a permittee's
telecommunications system located in the public right-of-way, or allow
other actions with a similar result without securing from such person
a representation that all governmental approvals have been secured
in order to occupy space in the public right-of-way.
(e)
As-built maps.
(1)
Without expense to the City, a permittee under this article
shall provide the City with as-built maps, records and plans showing
its telecommunications system, or portions thereof within the City,
including those of affiliates used by the permittee, and maps and
descriptive information of facilities of other persons used by the
permittee. The City Manager may waive part or all of this requirement
if satisfactory records of the location of the telecommunications
system were previously provided to the City. The as-built maps, records
and plans shall be provided within 30 days of the completion of the
telecommunications system and any extensions, additions or modifications
to the telecommunications system. In addition, a permittee, without
expense to the City, shall, upon 48 hours' notice, give the City
access to all as-built maps, records, plans and specifications showing
its telecommunications system, or portions thereof, within the City.
Upon request by the City, a permittee shall inform the City, as soon
as possible, but no more than one business day after the request,
of any changes from previously supplied maps, records or plans, and
shall mark up maps provided by the City to show the location of its
telecommunications system.
(2)
A permittee shall have no recourse against the City for any
loss, cost, expense or damage arising out of the failure of the City
to have the authority to grant all, or any part of a permit or the
authority to grant permission to use all or part of, the public rights-of-way.
A permittee expressly acknowledges that upon accepting a permit, it
did so relying on its own investigation and understanding of the power
and authority of the City.
(f)
No inducement. By acceptance of a permit under this article, a permittee
acknowledges that it has not been induced to obtain the permit by
any understanding, promise or other statement, whether verbal or written,
by or on behalf of the City or a third person concerning any term
or condition of a permit not expressed in this article.
(g)
Acceptance of terms and conditions. A permittee under this article
acknowledges by the acceptance of a permit that it has carefully read
the terms and conditions of the permit, and does accept all of such
terms and conditions.
(h)
No priority. A permit under this article does not establish any priority
of use of the public rights-of-way by a permittee over any present
or future permittees or parties having agreements with the City or
franchises for such use. In the event of any dispute as to the priority
of use of the public rights-of-way, the first priority shall generally
be to the public, the second priority shall be to the City, the third
priority shall be to the state and its political subdivisions in the
performance of their various functions, and thereafter as between
permittees, other permit holders, parties having agreements with the
City and franchisees, as determined by the City in the exercise of
its powers, including the police power and other powers reserved to
and conferred on it by the state.
(i)
Future use by City. A permittee under this article acknowledges,
by accepting a permit, that it obtains no rights to, or further use
of, the public rights-of-way, other than those expressly granted in
this article. Each permittee acknowledges and accepts as its own risk
that the City may make use in the future of the public rights-of-way
which a permittee is using or in which a permittee's telecommunications
system is located in a manner inconsistent with the permittee's
use of such public rights-of-way, and that in such event the permittee
will not be entitled to compensation from the City.
(j)
Expiration of permit. Unless the City grants an extension of a permit
under this article, such permit shall expire one year from the date
of issuance, unless prior to such time the permittee either:
(1)
Commences construction, installation or operation of its telecommunications
system within the public rights-of-way authorized by the permit and
diligently pursues completion of construction or installation; or
(2)
Commences use of the public rights-of-way to provide telecommunications
services as authorized by the permit.
[Ord. of 11-17-1998, § 9]
(a)
No burden on public rights-of-way. A permittee under this article
and its contractors, subcontractors and telecommunications system
shall not unduly burden or interfere with the present or future use
of any of the public rights-of-way within the City. A permittee shall
erect and maintain its telecommunications system so as to cause minimum
interference with the use of the public rights-of-way, and with the
rights and reasonable convenience of property owners. The permittee's
cables and wires shall be suspended or buried so as not to endanger
or injure persons or property in the public rights-of-way. If the
City, in its reasonable judgment, determines that any portion of the
telecommunications system located in the public right-of-way constitutes
an undue burden or interference, the permittee, at its sole cost and
expense, shall modify its telecommunications facilities or take such
other actions as the City may determine are in the public interest
to remove or alleviate the burden, and the permittee shall do so within
a reasonable time period established by the City.
(b)
Restoration of property. A permittee under this article, its contractors
and subcontractors shall immediately restore, at the permittee's
sole cost and expense, and in a manner approved by the City, any portion
of the public rights-of-way that is in any way disturbed, damaged
or injured by the construction, operation, maintenance or removal
of the telecommunications system to as good or better condition than
existed prior to the disturbance. If the permittee, its contractors
or subcontractors fail to make such restoration within the time specified
by the City, the City shall be entitled to complete the work and the
permittee shall reimburse the City for the costs of such work, or
the City may draw upon the letter of credit or bond posted by the
permittee, at the City's sole option.
(c)
Easements. Upon the request of the City, a telecommunications provider
shall submit evidence of any easement or authorization to use private
property for the construction or operation of its telecommunications
system. Any easements over or under private property which necessary
for the construction or operation of a telecommunications system shall
be arranged for and obtained by the permittee. Any use or intrusion
on private property without an easement or other instrument evidencing
permission of the property owner to use such property shall constitute
a trespass by the permittee and a violation of this article. Any easements
over or under property owned by the City, other than the public rights-of-way,
shall be separately negotiated with the City.
(d)
Tree trimming. Subject to all applicable City ordinances, if any,
a permittee under this article may trim trees upon and overhanging
the public rights-of-way to prevent the branches of such trees from
coming into contact with its telecommunications system. The permittee
shall minimize the trimming of trees to trimming only those trees
that are essential to maintain the integrity of its telecommunications
system. No trimming shall be done in the public rights-of-way without
previously informing the City. The permittee will use reasonable efforts
to notify all affected property owners in advance of trimming trees
on or adjacent to their properties.
(e)
Pavement cut coordination; additional fees.
(1)
A permittee under this article shall coordinate all construction
work in the public rights-of-way with the City's program for
street construction, rebuilding, resurfacing and repair, which shall
be collectively known as "street resurfacing." A permittee shall meet
with the official of the City primarily responsible for the public
rights-of-way at least twice per year in order to comply with the
requirement of this subsection.
(2)
The goals of such coordination shall be to require a permittee
to conduct all work in the public rights-of-way in conjunction with,
or immediately prior to, any street resurfacing planned by the City,
and to prevent the public rights-of-way from being disturbed by a
permittee for a period of years after such street resurfacing.
(3)
In addition to any other fees or payments required by this article,
a permittee shall pay to the City the sum set from time to time by
City Council resolution or ordinance for each foot cut into or excavation
of any public rights-of-way, or portion thereof, which was subject
to street resurfacing within 18 months prior to such cut or excavation.
This fee is in addition to, and not in lieu of, the obligation to
restore the public rights-of-way, and is in addition to all other
fees required by this article.
(f)
Marking. A permittee under this article shall mark any installations
of its telecommunications system which occur after the effective date
of the ordinance from which this article is derived, as follows:
(1)
Aerial portions of its telecommunications system shall be marked
with a marker on its lines on alternate poles which shall state the
permittee's name and provide a toll-free telephone number to
call for assistance.
(2)
Direct buried underground portions of its telecommunications
system 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.
At least several inches above the conducting wire, a continuous
colored tape with the permittee's name and toll-free telephone
number and a statement that there is buried cable beneath; and
c.
Stakes or other appropriate aboveground markers with the permittee's
name and toll-free telephone number indicating that there is buried
telephone cable below.
(3)
Portions of its telecommunications system located in conduit,
including facilities of others used by a permittee, shall be marked
at each manhole with the permittee's name and toll-free telephone
number to call for assistance.
(g)
Compliance with laws. A permittee under this article shall comply
with all laws, statutes, ordinances, rules and regulations regarding
the installation, construction, ownership and use of its telecommunications
system, whether federal, state or local, now in force or which may
be promulgated, including, but not limited to, any ordinance requiring
the installation of additional conduit when a permittee installs underground
conduit for its telecommunications system. Before any installation
is commenced, the permittee shall secure all necessary permits, licenses
and approvals from all appropriate departments, agencies, boards or
Councils of the City, or other governmental entities as may be required
by law, including, but not limited to, all utility line and highway
permits. A permittee shall comply in all respects with applicable
codes and industry standards, including, but not limited to, the latest
edition of the National Electrical Safety Code and the latest edition
of the National Electrical Code. A permittee shall comply with all
zoning and land use ordinances and historic preservation ordinances.
(h)
Street vacating. If the City vacates or consents to the vacating
of public rights-of-way within its jurisdiction, and such vacating
necessitates the removal and relocation of a permittee's facilities
in the vacated right-of-way, the permittee shall, as a condition of
the permit, consent to the vacating and move its facilities, at its
sole cost and expense, when ordered to do so by the City or a court
of competent jurisdiction. The permittee shall relocate its facilities
to such alternate route as the City, acting reasonably and in good
faith, shall designate.
(i)
Relocation. A permittee under this article may request to relocate
its facilities above, below or within a public way. The City Manager
may grant, grant with conditions or deny such request. If the City
requests a permittee to relocate, protect, support, disconnect, place
underground or remove its facilities because of street or utility
work, or other public projects, the permittee shall relocate, protect,
support, disconnect, place underground or remove its facilities, at
its sole cost and expense, to such alternate route as the City, acting
reasonably and in good faith, shall designate. The work shall be completed
within the time period designated by the City.
(j)
Public emergency. The City shall have the right to sever, disrupt,
dig up or otherwise destroy facilities of a permittee under this article,
without any prior notice, if such action is deemed necessary by the
Mayor, City Manager, Police Chief, Fire Chief or their designees because
of a public emergency. "Public emergency" means any condition which,
in the opinion of an officer named in this subsection, poses an immediate
threat to life, health or property, caused by any natural or man-made
disaster, including, but not limited to, storms, floods, fires, accidents,
explosions, major 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 City.
(k)
MISS DIG system. If eligible to join, a permittee under this article
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 under such act.
(l)
Use of existing facilities; undergrounding. A permittee under this
article shall utilize existing poles, conduits and other facilities,
whenever practicable, and shall not construct or install any new,
different or additional poles or other facilities unless expressly
authorized by the permit. Where utility wiring is located underground,
either at the time of initial construction or subsequent thereto,
a permittee's telecommunications system shall also be located
underground, unless otherwise expressly authorized by the permit.
All undergrounding shall be at the sole cost and expense of the permittee.
(m)
Underground relocation. If a permittee under this article has its
facilities on poles of a municipal electric utility or any other public
utility company, and such utility relocates its facilities underground,
the permittee shall relocate its facilities underground in the same
location at the permittee's sole cost and expense.
(n)
Pole/conduit/trench license agreement; notification. If a permittee
under this article forfeits or otherwise loses its rights under a
pole/conduit/trench license agreement with any entity, the permittee
shall notify the City Manager of such agreement in writing within
30 days.
(o)
Identification. All personnel of a permittee under this article 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 their name and photograph.
A permittee shall account for all identification cards at all times.
Every service vehicle of a permittee and its contractors or subcontractors
shall be clearly identified as such to the public with the permittee's
name.
(p)
9-1-1 emergency service. As a condition of a permit under this article,
a permittee providing local exchange service shall arrange to have
9-1-1 service provided within the City in accordance with the provisions
of the applicable 9-1-1 service plan and the rules and orders of the
state public service Council.
[Ord. of 11-17-1998, § 10]
(a)
The City and its officers, agents, elected or appointed officials,
employees, departments, boards and Councils shall not be liable to
a permittee under this article or its affiliates or customers for
any interference with or disruption in the operation of a permittee's
telecommunications system or the provision of telecommunications services,
or for any damages arising out of a permittee's use of the public
rights-of-way.
(b)
As a condition of a permit under this article, a permittee shall
defend, indemnify, protect and hold harmless the City, its officers,
agents, employees, elected and appointed officials, departments, boards
and Councils from any and all claims, losses, liabilities, causes
of action, demands, judgments, decrees, proceedings and expenses of
any nature, including, but not limited to, 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 of the fault of the permittee, its officers, agents,
employees, contractors, successors or assigns.
[Ord. of 11-17-1998, § 11]
(a)
A permittee under this article shall obtain and maintain in full
force and effect for the duration of its permit the following insurance
covering all insurable risks associated with its ownership or use
of its telecommunications system:
(1)
A comprehensive general liability insurance policy, including
completed operations liability, independent contractors' liability,
contractual liability coverage and coverage for property damage from
perils of explosion, collapse or damage to underground utilities,
commonly known as XCU coverage, in an amount as adopted by resolution
of the City Council from time to time.
(2)
An automobile liability insurance policy covering vehicles used
in connection with its activities under its permit in an amount as
adopted by resolution of the City Council from time to time.
(3)
Workers' compensation and employer's liability insurance
with statutory limits.
(b)
The City shall be named as an additional insured in all applicable
insurance policies under this section. All insurance policies shall
provide that such policies shall not be canceled or modified unless
30 days' prior written notice is given to the City. A permittee
under this article shall provide the City with a certificate of insurance
evidencing such coverage as a condition of issuance of the permit
and shall maintain on file with the City a current certificate of
insurance. All insurance shall be issued by insurance carriers licensed
to do business by the state, or by surplus line carriers on the state
insurance bureau's 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 or another rating agency
approved by the City.
(c)
If the insurance policies required by this section are written with
deductibles in excess of $50,000, the deductibles shall be approved
in advance by the City. A permittee under this article shall agree
to indemnify and save harmless the City from and against the payment
of any deductible and any premium on an insurance policy required
to be furnished by this section.
(d)
A permittee under this article shall require that its contractors and subcontractors working in public rights-of-way carry in full force and effect workers' compensation and employer liability, comprehensive general liability and automobile liability insurance coverages of the types which the permittee is required to obtain under Subsection (a) of this section, with the appropriate limits of coverage.
(e)
The permittee's insurance coverage shall be primary insurance
with respect to the City, its officers, agents, employees, elected
and appointed officials, departments, boards and Councils. Any insurance
or self-insurance maintained by the City, its officers, agents, employees,
elected and appointed officials, departments, boards and Councils
shall be in excess of the permittee's insurance, and shall not
contribute to it.
[Ord. of 11-17-1998, § 12]
A permittee under this article shall not assign or transfer
a permit, or any of its rights under a permit, in whole or in part,
voluntarily, involuntarily or by operation of law, including by merger
or consolidation or by other means, without the prior written consent
of the City, which consent shall not be unreasonably withheld. The
permittee shall reimburse the City for reasonable, actual costs, including
attorneys fees, incurred in the review of a request by the permittee
for consent to an assignment or transfer of the permit, or a transfer
of control of a permittee or its business. Notwithstanding anything
in this section to the contrary, the permittee may grant a security
interest in its rights under a permit in favor of a third party without
first obtaining the consent of the City. If a permit, or any rights
under a permit, is assigned or transferred, in whole or in part, with
the approval of the City, the terms and conditions of the permit and
this article shall be binding upon the successors and assigns of the
permittee. Notwithstanding the provisions of this section, if the
transfer of a permit, is to an affiliate owned or controlled by the
permittee, then no such approval shall be required, but the permittee
shall provide written notice of such transfer to the City.
[Ord. of 11-17-1998, § 13]
(a)
In addition to all other rights and powers reserved or pertaining
to the City, the City reserves, as an additional separate and distinct
remedy, the right to revoke a permit under this article and all rights
and privileges of a permittee in any of the following events or for
any of the following reasons:
(1)
A permittee fails, after 30 days' prior written notice, to comply with any of the provisions of the permit or this article, except § 34-80(f);
(2)
A permittee becomes insolvent, unable or unwilling to pay its
debts, or is adjudged bankrupt;
(3)
All or part of a permittee's facilities are sold under
an instrument to secure a debt and are not redeemed by the permittee
within 90 days from such sale;
(4)
A permittee violates § 34-80(e), or otherwise attempts to or does practice any fraud or deceit in its conduct or relations with the City;
(5)
The City condemns all of the property of a permittee within
the City by the lawful exercise of eminent domain;
(6)
A permittee abandons its telecommunications system or fails
to seek renewal of its permit;
(7)
A permittee fails to pay any fines due for violations of this
article; or
(8)
A permittee fails to pay any civil fines imposed by a court
of competent jurisdiction, such as pursuant to an ordinance providing
for civil infractions.
(b)
No revocation of a permit under this article, except for reason of
condemnation, shall be effective unless the City Council shall have
adopted a resolution setting forth the reason for the revocation and
the effective date, which resolution shall not be adopted without
30 days' prior notice to the permittee and a hearing at which
the permittee shall receive rudimentary due process.
[Ord. of 11-17-1998, § 14]
(a)
Underground. Upon revocation of a permit under this article, or upon
expiration of a permit if the permit is not renewed, the permittee
may remove any underground cable from the public rights-of-way which
has been installed in such a manner that it can be removed without
trenching or other opening of the streets along the extension of cable
to be removed. Except as otherwise provided, the permittee shall not
remove any underground cable or conduit which requires trenching or
other opening of the public rights-of-way along the extension of the
cable to be removed. The permittee shall remove, at its sole cost
and expense, any underground cable or conduit which is ordered to
be removed by the City based upon a determination, in the sole discretion
of the City, that removal is required in order to eliminate or prevent
a hazardous condition or promote future utilization of the streets
for public purposes. Any order by the City to remove any cable or
conduit shall be mailed to the permittee not later than 30 calendar
days following the date of revocation or expiration of the permit.
A permittee shall file written notice with the City Clerk not later
than 30 calendar days following the date of expiration or termination
of the permit of its intention to remove any cable and a schedule
for removal by location. The schedule and timing of removal shall
be subject to approval and regulation by the City. Removal shall be
completed no later than 12 months following the date of revocation
or expiration of the permit. Underground cable and conduit in the
public rights-of-way which is not removed within such twelve-month
period shall be deemed abandoned and, at the option of the City, title
shall be vested in the City. For purposes of this subsection, the
term "cable" means any wire, coaxial cable, fiber optic cable, feed
wire or pull wire.
(b)
Aboveground. Upon revocation of a permit under this article, or upon
expiration of a permit if the permit is not renewed, a permittee,
at its sole cost and expense, shall, unless relieved of the obligation
by the City, remove from the public rights-of-way, all aboveground
elements of its telecommunications system, including, but not limited
to, poles, pedestal mounted terminal boxes and lines attached to or
suspended from poles.
(c)
Permits; restoration; completion. A permittee under this article
shall apply for and obtain such encroachment permits, licenses, authorizations
or other approvals and pay such fees and deposit such security as
required by applicable laws or ordinances of the City. The permittee
shall conduct and complete the work of removal of the elements of
its telecommunications system in compliance with all such applicable
laws or ordinances, and shall restore the public rights-of-way to
the same condition they were in before the work of removal commenced.
[Ord. of 11-17-1998, § 15]
(a)
Nothing in this article shall be construed as a waiver of any ordinances,
Charter provisions, codes or regulations of the City, or the City's
right to require a permittee under this article or persons utilizing
the telecommunications system or telecommunications services to secure
appropriate permits or authorization for such use.
(b)
The City fully reserves its police powers to ensure and protect the
public health, safety and welfare and its authority and power to amend
this article at any time. The terms and conditions of any permit under
this article shall be subject to compliance with any future amendments
of this article. The City fully reserves its right to exercise the
reasonable control of the public rights-of-way pursuant to Mich. Const.
Art. VII, § 29.
(c)
Nothing in this article or any permit under this article shall limit
any right the City may have to acquire, by eminent domain, any property
of a telecommunications provider.
(d)
Nothing in this article or any permit under this article shall limit
the authority of the City to impose a tax, fee or other assessment
of any kind on any person. A telecommunications provider shall pay
all fees necessary to obtain all federal, state and local licenses,
permits and authorizations required for the construction, installation,
maintenance or operation of its telecommunications system within the
public rights-of-way.
[Ord. of 11-17-1998, § 16]
The various parts, sections and clauses of this article are declared to be severable. If any part, sentence, paragraph, section or clause of this article is adjudged to be unconstitutional or invalid by a court or administrative agency of competent jurisdiction, the remainder of the article shall not be affected by such judgment, except as otherwise provided in this section. If a court or administrative agency of competent jurisdiction determines, by a final, nonappealable order or an order from which no appeal has been taken within the time allowed, that any right or obligation of a permittee under this article is invalid, unconstitutional or unenforceable, then the permit shall become revocable and subject to termination without cause by either the City or the permittee upon 60 days' written notice. In the event of termination of a permit under this section by the City, the procedures for revocation set forth in § 34-88 shall be followed. In the event of termination of a permit under this section by either the City or the permittee, the provisions of § 34-89 for cable removal shall apply.
