[Amended 2-19-2008 by Ord. No. 08-02]
(a)
Under the Uniform Video Services Local Franchise Act,[1] video service providers may obtain a franchise to provide
video services in 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)
Telecommunications providers who obtain such a standardized,
uniform form of franchise agreement generally will have previously
obtained from municipality a permit under the Metro Act 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.
(c)
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 municipality and the public when such providers
are providing video services.
(d)
Other video services providers, in particular new providers
or existing cable companies, may not have a Metro Act permit issued
by municipality.
(e)
The Uniform Video Services Local Franchise Act and
the standardized, uniform franchise agreement require video service
providers 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.
(f)
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.
(g)
The Michigan Constitution reserves reasonable control
of their highways, streets, alleys and public places to local units
of government.
(h)
The purpose of this article 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 right-of-way by video service providers who have a standardized,
uniform franchise but who lack a Metro Act Permit from municipality.
This article 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 § 6(1) of the
Metro Act, 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 video service or communications network in public right-of-way.
[Amended 2-19-2008 by Ord. No. 08-02]
This article shall be interpreted and applied so as to be consistent
with the [1] Act and corresponding provisions of the forms of Metro
Act permit approved by the MPSC, including applicable MPSC, metro
authority and court decisions and determinations relating to same.
[1]
Editor's Note: See MCLA § 484.3106(1).
[Amended 2-19-2008 by Ord. No. 08-02]
The Uniform Video Services Local Franchise Act, being Act
480 of the Public Acts of 2006, MCL 484.3301 and following, as amended
from time to time.
Shall have the meaning set forth in § 22-200(a).
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 municipality.
The franchise agreement entered into or possessed by a video
service provider with municipality as required by § 3(1)
of the Act, if it is the standardized, uniform form of franchise agreement
established by the MPSC.
Municipality's manager or his or her designee.
The Metropolitan Extension Telecommunications Rights-of-Way
Oversight Act, being Act No. 48 of the Public Acts of 2002, MCL 484.3101
and following.
A permit to use the public right-of-way issued by municipality
under its ordinance implementing the Metro Act after a provider's
application for same to municipality as set forth in such ordinance.
Shall have 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.
The City of Corunna.
A video service provider with a currently valid franchise
agreement but without a currently valid Metro Act Permit.
Upon applying to municipality for and then obtaining a metro act permit from municipality, a video service provider is not a permittee and is no longer required to comply with this article. A video service provider is also not a permittee and is not required to comply with this article if it and municipality enter into a voluntary franchise agreement as described in § 22-204(b).
An individual, corporation, association, partnership, governmental
entity, or any other legal entity.
Shall have the same meaning as in the Act.
Shall have the meanings set forth in § 22-199(i).
Shall have the same meaning as in the Act.
Shall have the same meaning as in the Act.
[Amended 2-19-2008 by Ord. No. 08-02]
Compliance, insurance exception. All permittees shall comply with this article, except that a permittee need not comply with the insurance provisions of §§ 22-201(a) through (f) below if it is maintaining the insurance required by Section II.J of its franchise agreement (pertaining to incumbent video providers continuing certain insurance provided under their preceding franchise).
[Amended 2-19-2008 by Ord. No. 08-02]
(a)
Permittee contacts. Permittee shall provide the manager
with the names, addresses and the like for engineering and construction
related information for permittee and its facilities as follows:
(1)
The address, e-mail address, phone number and contact
person (title or name) at permittee's local office (in or near
municipality).
(2)
If 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 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)
Permittee shall at all times provide manager with
the phone number at which a live representative of permittee (not
voice mail) can be reached 24 hours a day, seven days a week, in the
event of a public emergency.
(6)
Permittee shall notify municipality in writing pursuant
to the notice provisions of the franchise agreement of any changes
in the preceding information.
(b)
Route maps. Within 90 days after the substantial completion
of construction of new facilities in municipality, permittee shall
submit route maps showing the location of the facilities to municipality,
in the same manner and subject to the same provisions as apply to
telecommunications providers under § 6(7) and 6(8) of the
Metro Act, MCL 484.3106(7) and (8).
(c)
As-Built records. Permittee, without expense to municipality,
shall, upon 48 hours' notice, give 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 municipality,
permittee shall inform municipality as soon as reasonably possible
of any changes from previously supplied maps, records, or plans and
shall mark up maps provided by municipality so as to show the location
of facilities.
[Amended 2-19-2008 by Ord. No. 08-02]
(a)
(Reserved)
(b)
Over lashing. Permittee shall not allow the wires or
any other facilities of a third party to be over lashed to permittee's
facilities without municipality's prior written consent. Municipality's
right to withhold written consent is subject to the authority of the
MPSC under § 361 of the Michigan Telecommunications Act,
MCL 484.2361.
(c)
No burden on public right-of-way. 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.
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 municipality reasonably determines that any portion
of the facilities constitutes an undue burden or interference, due
to changed circumstances, permittee, at its sole expense, shall modify
the facilities or take such other actions as municipality may determine
is in the public interest to remove or alleviate the burden, and permittee
shall do so within a reasonable time period. Municipality shall attempt
to require all occupants of a pole or conduit whose facilities are
a burden to remove or alleviate the burden concurrently.
(d)
No priority. This article does not establish any priority
of use of the public right-of-way by permittee over any present or
future permittees or parties having agreements with 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 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 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.
(e)
Restoration of property. Permittee, its contractors
and subcontractors shall immediately (subject to seasonal work restrictions)
restore, at permittee's sole expense, in a manner approved by
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 Permittee's option, better) condition as that
which existed prior to the disturbance. In the event that permittee,
its contractors or subcontractors fail to make such repair within
a reasonable time, municipality may make the repair and permittee
shall pay the costs municipality incurred for such repair.
(f)
Marking. 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 permittee's
lines on alternate poles which shall state permittee's name and
provide a toll-free number to call for assistance. Direct buried underground
portions of the facilities shall have (1) a conducting wire placed
in the ground at least several inches above permittee's cable
(if such cable is nonconductive); (2) at least several inches above
that, a continuous colored tape with a statement to the effect that
there is buried a cable beneath; and (3) stakes or other appropriate
above ground markers with 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 permittee, shall be marked at its entrance into
and exit from each manhole and handhole with permittee's name
and a toll-free telephone number.
(g)
Tree trimming. 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 municipality. Permittee shall dispose of all
trimmed materials. 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.
(h)
Installation and maintenance. The construction and
installation of the facilities shall be performed pursuant to plans
approved by municipality. The open cut of any public right-of-way
shall be coordinated with the manager or manager's designee.
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 permittee's use, or the facilities
of all users of the poles are required to go underground then permittee
shall, at its expense, place such portion of its facilities underground,
unless municipality approves an alternate location. Permittee may
perform maintenance on the facilities without prior approval of municipality,
provided that permittee shall obtain any and all permits required
by municipality in the event that any maintenance will disturb or
block vehicular traffic or are otherwise required by municipality.
(i)
Pavement cut coordination. Permittee shall coordinate
its construction and all other work in the public right-of-way with
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 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 municipality.
(j)
Compliance with laws. Permittee shall comply with all
valid and enforceable federal and state statutes and regulations;
and all valid and enforceable local regulations regarding use and
occupation of the public right-of-way, including the police powers
of municipality; regarding the construction, installation, and maintenance
of its facilities, now in force or which hereafter may be promulgated.
Before any installation is commenced, permittee shall secure all necessary
permits, licenses and approvals from municipality or other governmental
entity as may be required by law, including, without limitation, all
utility line permits and highway permits. Municipality shall not unreasonably
delay or deny issuance of any such permits, licenses or approvals.
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). Permittee shall comply
with all zoning and land use ordinances as may exist or may hereafter
be amended. This section does not constitute a waiver of permittee's
rights to challenge laws, statues, ordinances, rules or regulations
now in force or established in the future.
(k)
Street vacation. If municipality vacates or consents
to the vacation of public right-of-way within its jurisdiction, and
such vacation necessitates the removal and relocation of permittee's
facilities in the vacated public right-of-way, permittee shall consent
to the vacation and remove its facilities at its sole cost and expense
when ordered to do so by municipality or a court of competent jurisdiction.
Permittee shall relocate its facilities to such alternate route as
municipality and permittee mutually agree, applying reasonable engineering
standards.
(l)
Relocation. If municipality requests permittee to relocate,
protect, support, disconnect, or remove its facilities because of
street or utility work, or other public projects, permittee shall
relocate, protect, support, disconnect, or remove its facilities,
at its sole cost and expense, including where necessary to such alternate
route as municipality and permittee mutually agree, applying reasonable
engineering standards. The work shall be completed within a reasonable
time period.
(m)
Public emergency. Municipality shall have the right
to sever, disrupt, dig up or otherwise destroy facilities of permittee
if such action is necessary because of a public emergency. If reasonable
to do so under the circumstances, municipality shall attempt to provide
notice to 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. 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 municipality.
(n)
MISS DIG. If eligible to join, 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, MCL 460.701
et seq., and shall conduct its business in conformance with the statutory
provisions and regulations promulgated thereunder.
(o)
Underground relocation. If 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 permittee shall relocate its facilities underground
in the same location at permittee' sole cost and expense.
(p)
Identification. All personnel of 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 permittee's name, their name
and photograph. Permittee shall account for all identification cards
at all times. Every service vehicle of permittee and its contractors
or subcontractors shall be clearly identified as such to the public,
such as by a magnetic sign with permittee's name and telephone
number.
[Amended 2-19-2008 by Ord. No. 08-02]
(a)
Indemnity. Permittee shall defend, indemnify, protect,
and hold harmless 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, attorney's fees) arising
out of or resulting from the acts or omissions of permittee, its officers,
agents, employees, contractors, successors, or assigns, but only to
the extent such acts or omissions are related to 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 permittee, its
officers, agents, employees, contractors, successors and assigns.
(b)
Notice, cooperation. Municipality shall notify permittee
promptly in writing of any such claims and the method and means proposed
by municipality for defending or satisfying any such claims. Municipality
shall cooperate with permittee in every reasonable way to facilitate
the defense of any such claims. Municipality shall consult with permittee
respecting the defense and satisfaction of such claims, including
the selection and direction of legal counsel.
(c)
Settlement. Municipality shall not settle any claim
subject to indemnification under the preceding two sections without
the advance written consent of permittee, which consent shall not
be unreasonably withheld. Permittee shall have the right to defend
or settle, at its own expense, any claim against municipality for
which permittee is responsible hereunder.
[Amended 2-19-2008 by Ord. No. 08-02]
(a)
Coverage required. Prior to beginning any construction
in or installation of permittee's facilities in the public right-of-way,
permittee shall obtain insurance as set forth below and file certificates
evidencing same with municipality. Such insurance shall be maintained
in full force and effect until the end of the term of the franchise
agreement. In the alternative, permittee may satisfy this requirement
through a program of self-insurance, acceptable to municipality, by
providing reasonable evidence of its financial resources to municipality.
Municipality's acceptance of such self-insurance shall not be
unreasonably withheld.
(1)
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.
(2)
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, 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 municipality.
(3)
Automobile liability insurance in an amount not less
than $1,000,000.
(4)
Workers' compensation and employer's liability
insurance with statutory limits, and any applicable federal insurance
of a similar nature.
(5)
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
coverage's for any reason during the term of the franchise agreement,
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. Municipality shall be named as
an additional insured on all policies (other than workers' 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 municipality.
Permittee shall annually provide 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.
Permittee shall indemnify and save harmless 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. 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 Part 8. In the alternative,
permittee, at its expense, may provide such coverages for any or all
its contractors or subcontractors (such as by adding them to permittee's
policies).
(f)
Insurance primary. Permittee's insurance coverage
shall be primary insurance with respect to 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 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.)
[Amended 2-19-2008 by Ord. No. 08-02]
Municipal requirement. Municipality may require permittee to
post a bond (or letter of credit) in the amount provided in § 15(3)
of the Metro Act, as amended, MCL 484.3115(3).
[Amended 2-19-2008 by Ord. No. 08-02]
(a)
Removal; underground. As soon as practicable after
the term of the franchise agreement expires, permittee or its successors
and assigns shall remove any underground cable or other portions of
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. 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 permittee's
sole cost and expense.
(b)
Removal; above ground. As soon as practicable after
the expiration of the term of a franchise agreement, permittee, or
its successor assigns at its sole cost and expense, shall, unless
waived in writing by manager, remove from the public right-of-way
all above ground 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 manager. Unless extended by manager, removal
shall be completed not later than 12 months following the expiration
of the term of the franchise agreement. Portions of 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 municipality
exercised by written notice to permittee at the address provided for
in the franchise agreement, title to the portions described in such
notice shall vest in municipality.
[Amended 2-19-2008 by Ord. No. 08-02]
(a)
Duties. Permittees shall faithfully perform all duties
required by this article.
(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 article, as applied
to them, should request such a voluntary franchise agreement or a
mutually agreed to Metro Act Permit from 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, permittee and
municipality may nevertheless enforce such provision to the extent
permitted under applicable law.
(d)
Violations. A permittee who violates any provision
of this article is responsible for a municipal civil infraction, and
shall be subject to such civil infraction fines and costs as provided
in municipality's ordinances or municipal code. Nothing in this
section shall be construed to limit the remedies available to municipality
in the event of a violation by a permittee of this article.
(e)
Authorized officials. The manager, which includes his
or her designee, is hereby designated as the authorized official of
municipality to issue municipal civil infraction citations (directing
alleged violators to appear in court) or municipal civil infraction
violation notices (directing alleged violators to appear at the municipal
chapter violations bureau) for violations of this article, as provided
by municipality's ordinances or municipal code.
[Amended 2-19-2008 by Ord. No. 08-02]
All ordinances, resolutions or rules, parts of ordinances, resolutions
or rules inconsistent with the provisions hereof are hereby repealed.
