[Adopted 5-14-2008 by Ord. No. 3-2008]
A.
Under the Uniform Video Services Local Franchise Act,[1] video service providers may obtain a franchise to provide
video services in a municipality using a standardized, uniform form
of franchise agreement established by the MPSC. This form includes
the right to use the public right-of-way to provide such service but
does not contain right-of-way management and related provisions.
[1]
Editor's Note: See MCLA § 484.3301 et seq.
B.
The municipality's cable television consent agreement with its
current cable operator predates the Uniform Video Services Local Franchise
Act and has right-of-way management and related provisions. However,
that Act states that as of January 1, 2007, "any provisions" of such
an agreement "that are inconsistent with or in addition to" the standardized,
uniform form of franchise agreement established by the MPSC "are unreasonable
and unenforceable by the franchising entity."
C.
Telecommunications providers who obtain a standardized, uniform form
of franchise agreement generally will have previously obtained from
the municipality a permit under the Metro Act[2] to construct and maintain their telecommunications facilities
in the public right-of-way. Such Metro Act permits set forth the terms
and conditions for such right-of-way usage, standard forms of such
permits were agreed to in a collaborative process between municipalities
and providers that was initiated by the MPSC, and such standard forms
have since been approved by the legislature and the MPSC.
[2]
Editor's Note: See MCLA § 484.3101 et seq.
D.
Because telecommunications providers typically provide video services
over combined video and telecommunications facilities, such Metro
Act permits generally provide adequate public right-of-way-related
protections for a municipality and the public when such providers
are providing video services.
E.
Other video service providers, in particular new providers or existing
cable operators, may not have a Metro Act permit issued by a municipality.
F.
The Uniform Video Services Local Franchise Act and the standardized,
uniform franchise agreement require video service providers with such
an agreement to comply with all valid and enforceable local regulations
regarding the use and occupation of the public right-of-way in the
delivery of video services, including the police powers of the franchising
entity, and makes such right-of-way usage subject to the laws of the
State of Michigan and the police powers of the franchising entity.
G.
The Uniform Video Services Local Franchise Act and the standardized,
uniform franchise agreement state that franchising entities shall
provide video service providers with open, comparable, nondiscriminatory
and competitively neutral access to the public right-of-way, and may
not discriminate against a video service provider for the authorization
or placement of a video service or communications network in the public
right-of-way.
H.
The Michigan Constitution reserves reasonable control of their highways,
streets, alleys and public places to local units of government, which
may exercise such authority through the use of their police powers.
I.
The purpose of this chapter is to promote and protect the public
health, safety and welfare and exercise reasonable control over the
public right-of-way by regulating the use and occupation of such rights-of-way
by video service providers who lack a Metro Act permit from the municipality.
This chapter does so by setting forth terms and conditions for such
usage and occupation from the forms of Metro Act permit approved by
the MPSC and approved by the Legislature in Section 6(1) of the Metro
Act,[3] thus providing open, comparable, nondiscriminatory, and
competitively neutral access to the public right-of-way and not discriminating
against a video service provider for the authorization or placement
of a video service or communications network in public right-of-way.
[3]
Editor's Note: See MCLA § 484.3106(1).
This chapter shall be interpreted and applied so as to be consistent
with the Metro Act and corresponding provisions of the forms of the
Metro Act permit approved by the MPSC, including applicable MPSC,
Metro Authority and court decisions and determinations relating to
same.
The following definitions apply to this article:
The Uniform Video Services Local Franchise Act, being Act
480 of the Public Acts of 2006, MCLA § 484.3301 and following,
as amended from time to time.
The same meaning as in the Act.[1]
The meaning set forth in § 342-27A.
The lines, equipment and other facilities of a permittee
which use or occupy the public right-of-way in the delivery of video
services in the municipality.
The franchise agreement entered into or possessed by a video
service provider with the municipality as required by Section 3(1)
of the Act,[2] if it is the standardized, uniform form of franchise agreement
established by the MPSC.
The municipality's Township Supervisor or his or her
designee.
The Metropolitan Extension Telecommunications Rights-of-Way
Oversight Act, being Act No. 48 of the Public Acts of 2002, MCLA § 484.3101
and following.
A permit to use the public right-of-way issued by the municipality under Article I of this chapter which implements the Metro Act, after a provider's application for same to the municipality as set forth in such chapter.
The same meaning as "Authority" in the Metro Act.
The Michigan Public Service Commission and shall have the
same meaning as the term "Commission" in the Act and the Metro Act.
Cascade Charter Township.
A video service provider without a currently valid Metro Act permit but with either a preexisting agreement or a currently valid franchise agreement. Upon applying to the municipality for and then obtaining a Metro Act permit from the municipality, a video service provider is not a permittee and is no longer required to comply with this chapter. A video service provider is also not a permittee and is not required to comply with this chapter if it and the municipality enter into a voluntary franchise agreement as described in § 342-31B of this article.
An individual, corporation, association, partnership, governmental
entity, or any other legal entity.
A cable television consent agreement predating the effective
date of the Act, January 1, 2007, which has not expired or been terminated.[3]
The same meaning as in the Act.
The meanings set forth in § 342-26H of this article.
The same meaning as in the Act.
The same meaning as in the Act, and shall include an incumbent
video provider as referred to in Section 5(2) of the Act.[4]
All permittees shall comply with this article, except that a permittee need not comply with the insurance provisions of § 342-28 of this article if it is maintaining the insurance required by Section 11.J of the standardized, uniform form of franchise agreement established by the MPSC (which in accordance with the Act states that incumbent video providers shall comply with the terms which provide insurance for right-of-way related activities that are contained in its last cable franchise or consent agreement from the franchising entity entered into before the effective date of the Act).
A.
Permittee contacts. The permittee shall provide the Manager with
the names, addresses and the like for engineering- and construction-related
information for the permittee and its facilities as follows:
(1)
The address, e-mail address, phone number and contact person (title
or name) at the permittee's local office (in or near the municipality).
(2)
If the permittee's engineering drawings, as-built plans and
related records for the facilities will not be located at the preceding
local office, the location address, phone number and contact person
(title or department) for them.
(3)
The name, title, address, e-mail address and telephone numbers of
the permittee's engineering contact person(s) with responsibility
for the design, plans and construction of the facilities.
(4)
The address, phone number and contact person (title or department)
at permittee's home office/regional office with responsibility
for engineering- and construction-related aspects of the facilities.
(5)
The permittee shall at all times provide the Manager with the phone
number at which a live representative of the permittee (not voice
mail) can be reached 24 hours a day, seven days a week, in the event
of a public emergency.
(6)
The permittee shall notify the municipality in writing pursuant to
the notice provisions of its franchise agreement or preexisting agreement
(whichever is then in effect) of any changes in the preceding information.
B.
Route maps. Within 90 days after the substantial completion of construction
of new facilities in the municipality, the permittee shall submit
route maps showing the location of the facilities to the municipality,
in the same manner and subject to the same provisions as apply to
telecommunications providers under Section 6(7) and 6(8) of the Metro
Act, MCLA § 484.3106(7) and (8).
C.
As-built records. The permittee, without expense to the municipality,
shall, upon 48 hours' notice, give the municipality access to all
as-built maps, records, plans and specifications showing the facilities
or portions thereof in the public right-of-way. Upon request by the
municipality, the permittee shall inform the municipality as soon
as reasonably possible of any changes from previously supplied maps,
records, or plans and shall mark up maps provided by the municipality
so as to show the location of the facilities.
A.
Overlashing. The permittee shall not allow the wires or any other
facilities of a third party to be overlashed to the permittee's
facilities without the municipality's prior written consent.
The municipality's right to withhold written consent is subject
to the authority of the MPSC under Section 361 of the Michigan Telecommunications
Act, MCLA § 484.2361.
B.
No burden on public right-of-way. The permittee, its contractors,
subcontractors, and the facilities shall not unduly burden or interfere
with the present or future use of any of the public right-of-way.
The permittee's aerial cables and wires shall be suspended so
as to not endanger or injure persons or property in or about the public
right-of-way. If the municipality reasonably determines that any portion
of the facilities constitutes an undue burden or interference, due
to changed circumstances, the permittee, at its sole expense, shall
modify the facilities or take such other actions as the municipality
may determine is in the public interest to remove or alleviate the
burden, and the permittee shall do so within a reasonable time period.
The municipality shall attempt to require all occupants of a pole
or conduit whose facilities are a burden to remove or alleviate the
burden concurrently.
C.
No priority. This article does not establish any priority of use
of the public right-of-way by the permittee over any present or future
permittees or parties having agreements with the municipality or franchises
for such use. In the event of any dispute as to the priority of use
of the public right-of-way, the first priority shall be to the public
generally, the second priority to the municipality, the third priority
to the State of Michigan and its political subdivisions in the performance
of their various functions, and thereafter as between other permit,
agreement or franchise holders, as determined (except as otherwise
provided by law) by the municipality in the exercise of its powers,
including the police power and other powers reserved to and conferred
on it by the State of Michigan.
D.
Restoration of property. The permittee, its contractors and subcontractors
shall immediately (subject to seasonal work restrictions) restore,
at the permittee's sole expense, in a manner approved by the
municipality, any portion of the public right-of-way that is in any
way disturbed, damaged, or injured by the construction, installation,
operation, maintenance or removal of the facilities to a reasonably
equivalent (or, at the permittee's option, better) condition
as that which existed prior to the disturbance. In the event that
the permittee, its contractors or subcontractors fail to make such
repair within a reasonable time, the municipality may make the repair,
and the permittee shall pay the costs the municipality incurred for
such repair.
E.
Marking. The permittee shall mark its facilities installed after
the effective date of this article as follows: Aerial portions of
the facilities shall be marked with a marker on the permittee's
lines on alternate poles which shall state the permittee's name
and provide a toll-free number to call for assistance. Direct buried
underground portions of the facilities shall have: a) a conducting
wire placed in the ground at least several inches above the permittee's
cable (if such cable is nonconductive); b) at least several inches
above that, a continuous colored tape with a statement to the effect
that there is buried cable beneath; and c) stakes or other appropriate
aboveground markers with the permittee's name and a toll-free
number indicating that there is buried cable below. Bored underground
portions of the facilities shall have a conducting wire at the same
depth as the cable and shall not be required to provide the continuous
colored tape. Portions of the facilities located in conduit, including
conduit of others used by the permittee, shall be marked at its entrance
into and exit from each manhole and handhole with the permittee's
name and a toll-free telephone number.
F.
Tree trimming. The permittee may trim trees upon and overhanging
the public right-of-way so as to prevent the branches of such trees
from coming into contact with the facilities, consistent with any
standards adopted by the municipality. The permittee shall dispose
of all trimmed materials. The permittee shall minimize the trimming
of trees to that essential to maintain the integrity of the facilities.
Except in emergencies, all trimming of trees in the public right-of-way
shall have the advance approval of Manager.
G.
Installation and maintenance. The construction and installation of
the facilities shall be performed pursuant to plans approved by the
municipality. The open cut of any public right-of-way shall be coordinated
with the Manager or Manager's designee. The permittee shall install
and maintain the facilities in a reasonably safe condition. If the
existing poles in the public right-of-way are overburdened or unavailable
for the permittee's use, or the facilities of all users of the
poles are required to go underground, then the permittee shall, at
its expense, place such portion of its facilities underground, unless
the municipality approves an alternate location. The permittee may
perform maintenance on the facilities without prior approval of the
municipality, provided that the permittee shall obtain any and all
permits required by the municipality in the event that any maintenance
will disturb or block vehicular traffic or are otherwise required
by the municipality.
H.
Pavement cut coordination. The permittee shall coordinate its construction
and all other work in the public right-of-way with the municipality's
program for street construction and rebuilding (collectively "street
construction") and its program for street repaving and resurfacing,
except seal coating and patching (collectively "street resurfacing").
The goals of such coordination shall be to encourage the permittee
to conduct all work in the public right-of-way in conjunction with
or immediately prior to any street construction or street resurfacing
planned by the municipality.
I.
Compliance with laws. The permittee shall comply with all valid and
enforceable federal and state statutes and regulations and all valid
and enforceable local regulations regarding the use and occupation
of the public right-of-way, including the police powers of the municipality,
regarding the construction, installation, and maintenance of its facilities,
now in force or which hereafter may be promulgated. Before any installation
is commenced, the permittee shall secure all necessary permits, licenses
and approvals from the municipality or other governmental entity as
may be required by law, including, without limitation, all utility
line permits and highway permits. The municipality shall not unreasonably
delay or deny issuance of any such permits, licenses or approvals.
The permittee shall comply in all respects with applicable codes and
industry standards, including but not limited to the National Electrical
Safety Code (latest edition adopted by Michigan Public Service Commission)
and the National Electric Code (latest edition). The permittee shall
comply with all zoning and land use ordinances and historic preservation
ordinances as may exist or may hereafter be amended. This section
does not constitute a waiver of the permittee's right to challenge
laws, statutes, ordinances, rules or regulations now in force or established
in the future.
J.
Street vacation. If the municipality vacates or consents to the vacation
of public right-of-way within its jurisdiction, and such vacation
necessitates the removal and relocation of the permittee's facilities
in the vacated public right-of-way, the permittee shall consent to
the vacation and remove its facilities at its sole cost and expense
when ordered to do so by the municipality or a court of competent
jurisdiction. The permittee shall relocate its facilities to such
alternate route as the municipality and the permittee mutually agree,
applying reasonable engineering standards.
K.
Relocation. If the municipality requests the permittee to relocate,
protect, support, disconnect, or remove its facilities because of
street or utility work, or other public projects, the permittee shall
relocate, protect, support, disconnect, or remove its facilities,
at its sole cost and expense, including where necessary to such alternate
route as the municipality and the permittee mutually agree, applying
reasonable engineering standards. The work shall be completed within
a reasonable time period.
L.
Public emergency. The municipality shall have the right to sever,
disrupt, dig up or otherwise destroy facilities of the permittee if
such action is necessary because of a public emergency. If reasonable
to do so under the circumstances, the municipality shall attempt to
provide notice to the permittee. Public emergency shall be any condition
which poses an immediate threat to life, health, or property caused
by any natural or man-made disaster, including, but not limited to,
storms, floods, fire, accidents, explosions, water main breaks, hazardous
material spills, etc. The permittee shall be responsible for repair
at its sole cost and expense of any of its facilities damaged pursuant
to any such action taken by the municipality.
M.
MISS DIG. If eligible to join, the permittee shall subscribe to and
be a member of MISS DIG, the association of utilities formed pursuant
to Act 53 of the Public Acts of 1974, as amended, MCLA § 460.701
et seq., and shall conduct its business in conformance with the statutory
provisions and regulations promulgated thereunder.
N.
Underground relocation. If the permittee has its facilities on poles
of Consumers Energy, Detroit Edison or another electric or telecommunications
provider and Consumers Energy, Detroit Edison or such other electric
or telecommunications provider relocates its system underground, then
the permittee shall relocate its facilities underground in the same
location at the permittee's sole cost and expense.
O.
Identification. All personnel of the permittee and its contractors
or subcontractors who have as part of their normal duties contact
with the general public shall wear on their clothing a clearly visible
identification card bearing the permittee's name, their name
and photograph. The permittee shall account for all identification
cards at all times. Every service vehicle of the permittee and its
contractors or subcontractors shall be clearly identified as such
to the public, such as by a magnetic sign with the permittee's
name and telephone number.
A.
Indemnity. The permittee shall defend, indemnify, protect, and hold
harmless the municipality, its officers, agents, employees, elected
and appointed officials, departments, boards, and commissions from
any and all claims, losses, liabilities, causes of action, demands,
judgments, decrees, proceedings, and expenses of any nature (collectively
"claims") [including, without limitation, attorneys' fees] arising
out of or resulting from the acts or omissions of the permittee, its
officers, agents, employees, contractors, successors, or assigns,
but only to the extent such acts or omissions are related to the permittee's
use of or installation of facilities in the public right-of-way and
only to the extent of the fault or responsibility of the permittee,
its officers, agents, employees, contractors, successors and assigns.
B.
Notice; cooperation. The municipality shall notify the permittee
promptly in writing of any such claims and the method and means proposed
by the municipality for defending or satisfying any such claims. The
municipality shall cooperate with the permittee in every reasonable
way to facilitate the defense of any such claims. The municipality
shall consult with the permittee respecting the defense and satisfaction
of such claims, including the selection and direction of legal counsel.
C.
Settlement. The municipality shall not settle any claim subject to
indemnification by the permittee without the advance written consent
of the permittee, which consent shall not be unreasonably withheld.
The permittee shall have the right to defend or settle, at its own
expense, any claim against the municipality for which the permittee
is responsible hereunder.
A.
Coverage required.
(1)
Prior
to beginning any construction in or installation of the permittee's
facilities in the public right-of-way, the permittee shall obtain
insurance as set forth below and file certificates evidencing same
with the municipality. Such insurance shall be maintained in full
force and effect until the end of the term of its franchise agreement
or preexisting agreement (whichever is then in effect). In the alternative,
the permittee may satisfy this requirement through a program of self-insurance,
acceptable to the municipality, by providing reasonable evidence of
its financial resources to the municipality. The municipality's
acceptance of such self-insurance shall not be unreasonably withheld.
(a)
Commercial general liability insurance, including completed
operations liability, independent contractors liability, contractual
liability coverage, railroad protective coverage and coverage for
property damage from perils of explosion, collapse or damage to underground
utilities, commonly known as "XCU coverage," in an amount not less
than $5,000,000.
(b)
Liability insurance for sudden and accidental environmental
contamination with minimum limits of $500,000 and providing coverage
for claims discovered within three years after the term of the policy.
Pursuant to the 2006 MPSC decision in Case U-14720, the permittee
need not comply with the preceding sentence until such time after
the effective date of this article that it decides to place any new
or existing facilities underground within the public right-of-way
in the municipality.
(c)
Automobile liability insurance in an amount not less than $1,000,000.
(d)
Workers' compensation and employer's liability insurance
with statutory limits and any applicable federal insurance of a similar
nature.
(2)
The coverage amounts set forth above may be met by a combination
of underlying (primary) and umbrella policies so long as in combination
the limits equal or exceed those stated. If more than one insurance
policy is purchased to provide the coverage amounts set forth above,
then all policies providing coverage limits excess to the primary
policy shall provide drop down coverage to the first dollar of coverage
and other contractual obligations of the primary policy, should the
primary policy carrier not be able to perform any of its contractual
obligations or not be collectible for any of its coverages for any
reason during the term of the franchise agreement or preexisting agreement
(whichever is then in effect), or (when longer) for as long as coverage
could have been available pursuant to the terms and conditions of
the primary policy.
B.
Additional insured. The municipality shall be named as an additional
insured on all policies (other than worker's compensation and
employer's liability). All insurance policies shall provide that
they shall not be canceled, modified or not renewed unless the insurance
carrier provides 30 days prior written notice to the municipality.
The permittee shall annually provide the municipality with a certificate
of insurance evidencing such coverage. All insurance policies (other
than environmental contamination, workers' compensation and employer's
liability insurance) shall be written on an occurrence basis and not
on a claims-made basis.
C.
Qualified insurers. All insurance shall be issued by insurance carriers
licensed to do business by the State of Michigan or by surplus line
carriers on the Michigan Insurance Commission approved list of companies
qualified to do business in Michigan. All insurance and surplus line
carriers shall be rated A+ or better by A.M. Best Company.
D.
Deductibles. If the insurance policies required by this article are
written with retainages or deductibles in excess of $50,000, they
shall be approved by Manager in advance in writing. The permittee
shall indemnify and save harmless the municipality from and against
the payment of any deductible and from the payment of any premium
on any insurance policy required to be furnished hereunder.
E.
Contractors. The permittee's contractors and subcontractors
working in the public right-of-way shall carry in full force and effect
commercial general liability, environmental contamination liability,
automobile liability and workers' compensation and employer liability
insurance which complies with all terms of this section. In the alternative,
the permittee, at its expense, may provide such coverages for any
or all its contractors or subcontractors (such as by adding them to
the permittee's policies).
F.
Primary insurance. The permittee's insurance coverage shall
be primary insurance with respect to the municipality, its officers,
agents, employees, elected and appointed officials, departments, boards,
and commissions (collectively "them"). Any insurance or self-insurance
maintained by any of them shall be in excess of the permittee's
insurance and shall not contribute to it (where "insurance or self-insurance
maintained by any of them" includes any contract or agreement providing
any type of indemnification or defense obligation provided to or for
the benefit of them from any source, and includes any self-insurance
program or policy or self-insured retention or deductible by, for
or on behalf of them).
The municipality may require the permittee to post a bond (or
letter of credit), in the amount provided in Section 15(3) of the
Metro Act, as amended, MCLA § 484.3115(3).
A.
Removal of underground facilities. As soon as practicable after the
later of the term of its franchise agreement or preexisting agreement
expires, the permittee or its successors and assigns shall remove
any underground cable or other portions of the permittee's facilities
from the public right-of-way which has been installed in such a manner
that it can be removed without trenching or other opening of the public
right-of-way. The permittee shall not remove any underground cable
or other portions of the facilities which requires trenching or other
opening of the public right-of-way except with the prior written approval
of Manager. All removals shall be at the permittee's sole cost
and expense. For purposes of this subsection, "cable" means any wire,
coaxial cable, fiber optic cable, feed wire or pull wire.
B.
Removal of aboveground facilities. As soon as practicable after the
later of the expiration of the term of its franchise agreement or
preexisting agreement, the permittee, or its successor or assigns
at its sole cost and expense, shall, unless waived in writing by the
Manager, remove from the public right-of-way all aboveground elements
of its facilities, including but not limited to poles, pedestal-mounted
terminal boxes, and lines attached to or suspended from poles.
C.
Schedule. The schedule and timing of removal shall be subject to
approval by the Manager. Unless extended by the Manager, removal shall
be completed not later than 12 months following the expiration of
the later of the term of a franchise agreement or preexisting agreement.
Portions of the permittee's facilities in the public right-of-way
that are not removed within such time period shall be deemed abandoned
and, at the option of the municipality exercised by written notice
to the permittee at the address provided for in the franchise agreement
or preexisting agreement (whichever was last in effect), title to
the portions described in such notice shall vest in the municipality.
A.
Duties. The permittees shall faithfully perform all duties required
by this chapter.
B.
Different terms. The Act allows local units of government and video
service providers to enter into voluntary franchise agreements that
include terms and conditions which are different from those required
under the Act or which are different from those in the standardized,
uniform form of franchise agreement established by the MPSC. The Metro
Act allows municipalities and providers to mutually agree to Metro
Act permit terms differing from those in the standard forms of Metro
Act permit approved by the MPSC. Current or prospective permittees
who desire terms different from those in this chapter, as applied
to them, should request such a voluntary franchise agreement or a
mutually agreed to Metro Act permit from the municipality.
C.
Interpretation and severability. The provisions of this article shall
be liberally construed to protect and preserve the peace, health,
safety and welfare of the public, and should any provision or section
of this article be held unconstitutional, invalid, overbroad or otherwise
unenforceable, such determination/holding shall not be construed as
affecting the validity of any of the remaining conditions of this
article. If any provision in this article is found to be partially
overbroad, unenforceable, or invalid, the permittee and the municipality
may nevertheless enforce such provision to the extent permitted under
applicable law.
[Amended 10-24-2012 by Ord. No. 7-2012]
Any permittee who violates any provision of this article shall be responsible for a municipal civil infraction, subject to the penalties in Chapter 40, Article IV, Penalties for Misdemeanors and Municipal Civil Infractions. Nothing in this section shall be construed to limit the remedies available to the Township in the event of a violation by a person of this article or a permit.
[Amended 10-24-2012 by Ord. No. 7-2012]
The Manager, which includes his or her designee, is hereby designated
as the authorized official of the municipality to issue municipal
civil infraction citations (directing alleged violators to appear
in court) for violations of this article, as provided in the Code
of Cascade Charter Township.
