[Adopted 8-8-2000]
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.
The person who is issued a license in accordance with the
provisions of this article.
All receipts collected by a licensee for all communications
and communications-related operations and services within the Township
of Hillside. "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.
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 or 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 city-owned
power or signal lines; vacation or relocation of public right-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,
the 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 Hillside 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 Hillside 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 right-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 Township Council. 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.
D.
Acceptance of any use fee shall not constitute an
acknowledgement 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 Township Council 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 to 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 Township
Council, 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 right-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.
Removal or disconnection of system.
(1)
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.
(2)
The Township may remove or disconnect and render inoperative
any communications system used or maintained contrary to this article.
B.
Transfers and assignments. 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 Township Council by filing a written appeal
with the Township Council specifying the reasons for the appeal. At
least 10 days before the date of the hearing, the Township Council
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.
