Sturgis City Zoning Code

The purposes of this article are to regulate access to and ongoing use of public rights-of-way by telecommunications providers for their telecommunications facilities while protecting the public health, safety, and welfare and exercising reasonable control of the public rights-of-way in compliance with the Metropolitan Extension Telecommunications Rights-of-Way Oversight Act (MCL 484.3101 et seq.) ("act") and other applicable law, and to ensure that the city qualifies for distributions under the act by modifying the fees charged to providers and complying with the act.

(Ord. of 10-23-2002, § 54.01)

Nothing in this article shall be construed in such a manner as to conflict with the act or other applicable law.

(Ord. of 10-23-2002, § 54.02)

(a)

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:

Act means the Metropolitan Extension Telecommunications Rights-of-Way Oversight Act (MCL 484.3101).

City commission means the city commission or its designee. This section does not authorize delegation of any decision or function that is required by law to be made by the city commission.

Permit means a nonexclusive permit issued pursuant to the act and this article to a telecommunications provider to use the public rights-of-way in the city for its telecommunications facilities.

(b)

All other terms used in this article shall have the same meaning as defined or as provided in the act, including without limitation the following:

Authority means the Metropolitan Extension Telecommunications Rights-of-Way Oversight Authority created pursuant to section 3 of the act (MCL 484.3103).

MPSC means the Michigan Public Service Commission in the department of consumer and industry services, and shall have the same meaning as the term "commission" in the act.

Person means an individual, corporation, partnership, association, governmental entity, or any other legal entity.

Public right-of-way means the area on, below, or above a public roadway, highway, street, alley, easement or waterway. Public right-of-way does not include a federal, state, or private right-of-way.

Telecommunication facilities and facilities means the equipment or personal property, such as copper and fiber cables, lines, wires, switches, conduits, pipes, and sheaths, which are used to or can generate, receive, transmit, carry, amplify, or provide telecommunication services or signals. Telecommunication facilities or facilities do not include antennas, supporting structures for antennas, equipment shelters or houses, and any ancillary equipment and miscellaneous hardware used to provide federally licensed commercial mobile service as defined in section 332(d) of part I of title III of the Communications Act of 1934, chapter 652, 48 Stat. 1064, 47 USC 332 and further defined as commercial mobile radio service in 47 CFR 20.3, and service provided by any wireless, two-way communication device.

Telecommunications provider, provider and telecommunications services mean those terms as defined in section 102 of the Michigan telecommunications act, (MCL 484.2102). Telecommunication provider does not include a person or an affiliate of that person when providing a federally licensed commercial mobile radio service as defined in section 332(d) of part I of the Communications Act of 1934, chapter 652, 48 Stat. 1064, 47 USC 332 and further defined as commercial mobile radio service in 47 CFR 20.3, or service provided by any wireless, two-way communication device. For the purpose of the act and this article only, a provider also includes all of the following:

(1)

A cable television operator that provides a telecommunications service.

(2)

Except as otherwise provided by the act, a person who owns telecommunication facilities located within a public right-of-way.

(3)

A person providing broadband internet transport access service.

(Ord. of 10-23-2002, § 54.03)

(a)

Required. Except as otherwise provided in the act, a telecommunications provider using or seeking to use public rights-of-way in the city for its telecommunications facilities shall apply for and obtain a permit pursuant to this article.

(b)

Application. Telecommunications providers shall apply for a permit on an application form approved by the MPSC in accordance with section 6(1) of the act (MCL 484.3106(1)). A telecommunications provider shall file one copy of the application with the city manager. Upon receipt, the city manager shall make appropriate copies of the application and distribute a copy to appropriate administrative staff. Applications shall be complete and include all information required by the act, including without limitation a route map showing the location of the provider's existing and proposed facilities in accordance with section 6(5) of the act (MCL 484.3106(5).

(c)

Confidential information. If a telecommunications provider claims that any portion of the route maps submitted by it as part of its application contain trade secret, proprietary, or confidential information, which is exempt from the Freedom of Information Act, MCL 15.231 et seq., pursuant to section 6(5) of the act, the telecommunications provider shall prominently so indicate on the face of each map.

(d)

Application fee. Except as otherwise provided by the act, the application shall be accompanied by a one-time nonrefundable application fee in the amount of $500.00.

(e)

Additional information. The city manager may request an applicant to submit such additional information which the city manager deems reasonably necessary or relevant. The applicant shall comply with all such requests in compliance with reasonable deadlines for such additional information established by the city manager. If the city and the applicant cannot agree on the requirement of additional information requested by the city, the city or the applicant shall notify the MPSC as provided in section 6(2) of the act.

(f)

Previously issued permits. Pursuant to section 5(1) of the act, authorizations or permits previously issued by the city under section 251 of the Michigan telecommunications act, MCL 484.2251 and authorizations or permits issued by the city to telecommunications providers prior to the 1995 enactment of section 251 of the Michigan telecommunications act but after 1985 shall satisfy the permit requirements of this article.

(g)

Existing providers. Pursuant to section 5(3) of the act, within 180 days from November 1, 2002, the effective date of the act, a telecommunications provider with facilities located in a public right-of-way in the city as of such date, that has not previously obtained authorization or a permit under section 251 of the Michigan telecommunications act, MCL 484.2251, shall submit to the city an application for a permit in accordance with the requirements of this article. Pursuant to section 5(3) of the act, a telecommunications provider submitting an application under this subsection is not required to pay the $500.00 application fee required under subsection (d) above. A provider under this subsection shall be given up to an additional 180 days to submit the permit application if allowed by the authority, as provided in section 5(4) of the act.

(Ord. of 10-23-2002, § 54.04)

(a)

Approval or denial. The authority to approve or deny an application for a permit is hereby delegated to the city manager. Pursuant to section 15(3) of the act, the city manager shall approve or deny an application for a permit within 45 days from the date a telecommunications provider files an application for a permit under subsection 4(b) of this ordinance for access to a public right-of-way within the city. Pursuant to section 6(6) of the act, the city manager shall notify the MPSC when the city manager has granted or denied a permit, including information regarding the date on which the application was filed and the date on which permit was granted or denied. The city manager shall not unreasonably deny an application for a permit.

(b)

Form of permit. If an application for permit is approved, the city manager shall issue the permit in the form approved by the MPSC, with or without additional or different permit terms, in accordance with sections 6(1), 6(2) and 15 of the act.

(c)

Conditions. Pursuant to section 15(4) of the act, the city manager may impose conditions on the issuance of a permit, which conditions shall be limited to the telecommunications provider's access and usage of the public right-of-way.

(d)

Bond requirement. Pursuant to section 15(3) of the act, and without limitation on subsection (c), the city manager may require that a bond be posted by the telecommunications provider as a condition of the permit. If a bond is required, it shall not exceed the reasonable cost to ensure that the public right-of-way is returned to its original condition during and after the telecommunications provider's access and use.

(Ord. of 10-23-2002, § 54.05)

A telecommunications provider shall not commence construction upon, over, across, or under the public rights-of-way in the city without first obtaining a construction or engineering permit as required by ordinance for construction within the public rights-of-way. No fee shall be charged for such a construction or engineering permit.

(Ord. of 10-23-2002, § 54.06)

Pursuant to section 4(3) of the act, obtaining a permit or paying the fees required under the act or under this article does not give a telecommunications provider a right to use conduit or utility poles.

(Ord. of 10-23-2002, § 54.07)

Pursuant to section 6(7) of the act, a telecommunications provider shall, within 90 days after the substantial completion of construction of new telecommunications facilities in the city, submit route maps showing the location of the telecommunications facilities to both the MPSC and to the city. The route maps should be in paper format unless and until the commission determines otherwise, in accordance with section 6(8) of the act.

(Ord. of 10-23-2002, § 54.08)

Pursuant to section 15(5) of the act, a telecommunications provider undertaking an excavation or construction or installing telecommunications facilities within a public right-of-way or temporarily obstructing a public right-of-way in the city, as authorized by a permit, shall promptly repair all damage done to the street surface and all installations under, over, below, or within the public right-of-way and shall promptly restore the public right-of-way to its preexisting condition.

(Ord. of 10-23-2002, § 54.09)

In addition to the nonrefundable application fee paid to the city set forth in section 54-34(d), a telecommunications provider with telecommunications facilities in the city's public rights-of-way shall pay an annual maintenance fee to the authority pursuant to section 8 of the act.

(Ord. of 10-23-2002, § 54.10)

In compliance with the requirements of section 13(1) of the act, the city hereby modifies, to the extent necessary, any fees charged to telecommunications providers after November 1, 2002, the effective date of the act, relating to access and usage of the public rights-of-way, to an amount not exceeding the amounts of fees and charges required under the act, which shall be paid to the authority. In compliance with the requirements of section 13(4) of the act, the city also hereby approves modification of the fees of providers with telecommunication facilities in public rights-of-way within the city's boundaries, so that those providers pay only those fees required under section 8 of the act. The city shall provide each telecommunications provider affected by the fee with a copy of this article, in compliance with the requirement of section 13(4) of the act. To the extent any fees are charged telecommunications providers in excess of the amounts permitted under the act, or which are otherwise inconsistent with the act, such imposition is hereby declared to be contrary to the city's policy and intent, and upon application by a provider or discovery by the city, shall be promptly refunded as having been charged in error.

(Ord. of 10-23-2002, § 54.11)

Pursuant to section 13(5) of the act, if section 8 of the act is found to be invalid or unconstitutional, the modification of fees under section 11 shall be void from the date the modification was made.

(Ord. of 10-23-2002, § 54.12)

Pursuant section 10(4) of the act, all amounts received by the city from the authority shall be used by the city solely for rights-of-way related purposes. In conformance with that requirement, all funds received by the city from the authority shall be deposited into the major street fund and/or the local street fund maintained by the city under MCL 247.660.

(Ord. of 10-23-2002, § 54.13)

Pursuant to section 10(5) of the act, the city manager shall file an annual report with the authority on the use and disposition of funds annually distributed by the authority.

(Ord. of 10-23-2002, § 54.14)

Pursuant to section 13(6) of the act, the city shall not hold a cable television operator in default or seek any remedy for its failure to satisfy an obligation, if any, to pay after November 1, 2002, the effective date of the Act, a franchise fee or similar fee on that portion of gross revenues from charges the cable operator received for cable modem services provided through broadband internet transport access services.

(Ord. of 10-23-2002, § 54.15)

Pursuant to section 4(2) of the act, except as expressly provided herein with respect to fees, this article shall not affect any existing rights that a telecommunications provider or the city may have under a permit issued by the city or under a contract between the city and a telecommunications provider related to the use of the public rights-of-way.

(Ord. of 10-23-2002, § 54.16)

The city hereby declares that its policy and intent in adopting this article is to fully comply with the requirements of the act, and the provisions hereof should be construed in such a manner as to achieve that purpose. The city shall comply in all respects with the requirements of the act, including but not limited to the following:

(1)

Exempting certain route maps from the Freedom of Information Act, MCL 15.231, 215.246, as provided in section 54-34(c);

(2)

Allowing certain previously issued permits to satisfy the permit requirements hereof, in accordance with section 54-34(f);

(3)

Allowing existing providers additional time in which to submit an application for a permit, and excusing such providers from the $500.00 application fee, in accordance with section 54-34(g);

(4)

Approving or denying an application for a permit within 45 days from the date a telecommunications provider files an application for a permit for access to and usage of a public right-of-way within the city, in accordance with section 54-35(a);

(5)

Notifying the MPSC when the city has granted or denied a permit, in accordance with section 54-35(a);

(6)

Not unreasonably denying an application for a permit, in accordance with section 54-35(a);

(7)

Issuing a permit in the form approved by the MPSC, with or without additional or different permit terms, as provided in section 54-35(b);

(8)

Limiting the conditions imposed on the issuance of a permit to the telecommunications provider's access and usage of the public right-of-way, in accordance with section 54-35(c);

(9)

Not requiring a bond of a telecommunications provider which exceeds the reasonable cost to ensure that the public right-of-way is returned to its original condition during and after the telecommunication provider's access and use, in accordance with section 54-35(d);

(10)

Not charging any telecommunications providers any additional fees for construction or engineering permits, in accordance with section 54-36;

(11)

Providing each telecommunications provider affected by the city's right-of-way fees with a copy of this article, in accordance with section 54-41;

(12)

Submitting an annual report to the authority, in accordance with section 54-44; and

(13)

Not holding a cable television operator in default for a failure to pay certain franchise fees, in accordance with section 54-45.

(Ord. of 10-23-2002, § 54.17)

Pursuant to section 15(2) of the act, this article shall not limit the city's right to review and approve a telecommunication provider's access to and ongoing use of a public right-of-way or limit the city's authority to ensure and protect the health, safety, and welfare of the public.

(Ord. of 10-23-2002, § 54.18)

The city manager or his designee is hereby designated as the authorized city official 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 under this article as provided by this Code.

(Ord. of 10-23-2002, § 54.20)

A person who violates any provision of this article or the terms or conditions of a permit is responsible for a municipal civil infraction, and shall be subject to a fine of $500.00 or such other amount as may be specified in any fine schedule compiled, from time to time, by the city and filed with the court or a city agency of competent jurisdiction. Nothing in this section shall be construed to limit the remedies available to the city in the event of a violation by a person of this article or a permit.

(Ord. of 10-23-2002, § 54.21)

(a)

Generally. 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:

Act means the Communications Act of 1934, as amended (and specifically as amended by the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. 102-385), and as may be amended from time to time:

Basic cable service means "basic service" as defined in the FCC Rules, and any other cable television service which is subject to rate regulation by the city pursuant to the Act and the FCC Rules; "associated equipment" shall mean all equipment and services subject to regulation pursuant to 47 CFR 79.923.

FCC means the Federal Communications Commission.

FCC rules means all rules of the FCC promulgated from time to time pursuant to the Act.

Increase in rates means an increase in rates or a decrease in programming or customer services as provided in the FCC Rules.

(b)

Other words and terms. All other words and phrases used in this chapter shall have the same meaning as defined in the Act and FCC Rules.

(Code 1969, § 119.01)

Cross reference— Definitions generally, § 1-2.

The purpose of this article is to (i) adopt regulations consistent with the Act and the FCC Rules with respect to basic cable service rate regulation; and (ii) prescribe procedures to provide a reasonable opportunity for consideration of the views of interested parties in connection with basic cable service rate regulations by the city. This article shall be implemented and interpreted consistent with the Act and FCC Rules.

(Code 1969, § 119.02)

In connection with the regulation of rates for basic cable service and associated equipment, the city shall follow all FCC Rules.

(Code 1969, § 119.03)

(a)

A cable operator shall submit its schedule of rates for the basic service tier and associated equipment or a proposed increase in such rates in accordance with the Act and the FCC Rules. The cable operator shall include as part of its submission such information as is necessary to show that its schedule of rates or its proposed increase in rates complies with the Act and the FCC Rules. The cable operator shall file ten copies of the schedule or proposed increase with the city clerk-treasurer. For purposes of this article, the filing of the cable operator shall be deemed to have been made when at least ten copies have been received by the city clerk-treasurer. The city commission may, by resolution or otherwise, adopt rules and regulations as allowed by law, prescribing the information, data and calculations which must be included as part of the cable operator's filing of the schedule of rates or a proposed increase.

(b)

In addition to information and data required by rules and regulations of the city pursuant to subsection (a) of this section, a cable operator shall provide all information requested by the manager that is related and helpful in connection with the city's review and regulation of existing rates for the basic service tier and associated equipment or a proposed increase in these rates. The manager may establish reasonable deadlines for submission of the requested information and the cable operator shall comply with such deadlines.

(c)

A cable operator has the burden of proving that its schedule of rates for the basic service tier and associated equipment or a proposed increase in such rates complies with the Act and the FCC Rules including, without limitation, 47 USC 543 and 47 CFR 76.922 and 76.923.

(Code 1969, § 119.04)

(a)

If this article, any rules or regulations adopted by the city pursuant to subsection 54-104(a), or any request for information pursuant to subsection 54-104(b) requires the production of proprietary information, the cable operator shall produce the information. However, at the time the allegedly proprietary information is submitted, a cable operator may request that specific, identified portions of its response be treated as confidential and withheld from public disclosure. The request must state the reason why the information should be treated as proprietary and the facts that support those reasons. The request for confidentiality will be granted if the city determines that the preponderance of the evidence shows that nondisclosure is consistent with the provisions of the Freedom of Information Act, 5 USC 552. The city shall place in a public file for inspection any decision that results in information being withheld. If the cable operator requests confidentiality and the request is denied, (i) where the cable operator is proposing a rate increase, it may withdraw the proposal, in which case the allegedly proprietary information will be returned to it; or (ii) the cable operator may seek review within five working days of the denial in any appropriate forum. Release of the information will be stayed pending review.

(b)

Any interested party may file a request to inspect material withheld as proprietary with the city. The city shall weigh the policy considerations favoring nondisclosure against the reasons cited for permitting inspection in light of the facts of the particular case. It will then promptly notify the requesting entity and the cable operator that submitted the information as to the disposition of the request. It may grant, deny or condition a request. The requesting party or the cable operator may seek review of the decision by filing an appeal with any appropriate forum. Disclosure will be stayed pending resolution of any appeal.

(c)

The procedures set forth in this section shall be construed as analogous to and consistent with the rules of the FCC regarding requests for confidentiality including, without limitation, 47 CFR 0.459.

(Code 1969, § 119.05)

Upon the filing of ten copies of the schedule of rates or the proposed increase in rates pursuant to subsection 54-104(a), the city clerk-treasurer shall publish a public notice in a newspaper of general circulation in the city which shall state that (i) the filing has been received by the city clerk-treasurer and (except those parts which may be withheld as proprietary) is available for public inspection and copying; and (ii) interested parties are encouraged to submit written comments on the filing to the city clerk-treasurer not later than seven days after the public notice is published. The city clerk-treasurer shall give notice to the cable operator of the date, time, and place of the meeting at which the city commission shall first consider the schedule of rates or the proposed increase. This notice shall be mailed by first class mail at least three days before the meeting. In addition, if a written staff or consultant's report on the schedule of rates or the proposed increase is prepared for consideration of the city commission, then the city clerk-treasurer shall mail a copy of the report by first class mail to the cable operator at least three days before the meeting at which the city commission shall first consider the schedule of rates or the proposed increase.

(Code 1969, § 119.06)

After a cable operator has filed its existing schedule of rates or a proposed increase in these rates, the existing schedule of rates will remain in effect or the proposed increase in rates will become effective after 30 days from the date of filing under subsection 54-104(a) unless the city commission (or other properly authorized body or official) tolls the 30-day deadline pursuant to 47 CFR 76.933 by issuing a brief written order, by resolution or otherwise, within 30 days of the date of filing. The city commission may toll the 30-day deadline for an additional 90 days in cases not involving cost-of-service showings and for an additional 150 days in cases involving cost-of-service showings.

(Code 1969, § 119.07)

If a written order has been issued pursuant to section 54-107 and 47 CFR 76.933 to toll the effective date of existing rates for the basic service tier and associated equipment or a proposed increase in these rates, the cable operator shall submit to the city any additional information required or requested pursuant to section 54-104. In addition, the city commission shall hold a public hearing to consider the comments of interested parties within the additional 90-day or 150-day period, as the case may be. The city clerk-treasurer shall publish a public notice of the public hearing in a newspaper of general circulation within the city which shall state:

(1)

The date, time, and place at which the hearing shall be held;

(2)

Interested parties may appear in person, by agent, or by letter at such hearing to submit comments on or objections to the existing rates or the proposed increase in rates; and

(3)

Copies of the schedule of rates or the proposed increase in rates and related information (except those parts which may be withheld as proprietary) are available for inspection or copying from the office of the clerk-treasurer. The public notice shall be published not less than 15 days before the hearing. In addition, the city clerk-treasurer shall mail by first class mail a copy of the public notice to the cable operator not less than 15 days before the hearing.

(Code 1969, § 119.08)

Following the public hearing, the manager shall cause a report to be prepared for the city commission which shall (based on the filing of the cable operator, the comments or objections of interested parties, information requested from the cable operator and its response, staff or consultant's review, and other appropriate information) include a recommendation for the decision of the city commission pursuant to section 54-110. The city clerk-treasurer shall mail a copy of the report to the cable operator by first class mail not less than 20 days before the city commission acts under section 54-110. The cable operator may file a written response to the report with the city clerk-treasurer. If at least ten copies of the response are filed by the cable operator with the city clerk-treasurer within ten days after the report is mailed to the cable operator, the city clerk-treasurer shall forward it to the city commission.

(Code 1969, § 119.09)

The city commission shall issue a written order, by resolution or otherwise, which in whole or in part, approves the existing rates for basic cable service and associated equipment or a proposed increase in such rates, denies the existing rates or proposed increase, orders a rate reduction, prescribes a reasonable rate, allows the existing rates or proposed increase to become effective subject to refund, or orders other appropriate relief, in accordance with the FCC Rules. If the city commission issues an order allowing the existing rates or proposed increase to become effective subject to refund, it shall also direct the cable operator to maintain an accounting pursuant to 47 CFR 76.933. The order specified in this section shall be issued within 90 days of the tolling order under section 54-107 in all cases not involving a cost-of-service showing. The order shall be issued within 150 days after the tolling order under section 54-107 in all cases involving a cost-of-service showing.

(Code 1969, § 119.10)

The city commission may order a refund to subscribers as provided in 47 CFR 76.942. Before the city commission orders any refund to subscribers, the city clerk-treasurer shall give at least seven days' written notice to the cable operator by first class mail of the date, time, and place at which the city commission shall consider issuing a refund order and shall provide an opportunity for the cable operator to comment. The cable operator may appear in person, by agent, or by letter at such time for the purpose of submitting comments to the city commission.

(Code 1969, § 119.11)

Any order of the city commission pursuant to section 119.10 or section 54-111 shall be in writing, shall be effective upon adoption by the city commission, and shall be deemed released to the public upon adoption. The clerk-treasurer shall publish a public notice of any such written order in a newspaper of general circulation within the city which shall: (i) summarize the written decision, and (ii) state that copies of the text of the written decision are available for inspection or copying from the office of the clerk-treasurer. In addition, the city clerk-treasurer shall mail a copy of the text of the written decision to the cable operator by first class mail.

(Code 1969, § 119.12)

In addition to rules promulgated pursuant to section 54-104, the city commission may, by resolution or otherwise, adopt rules and regulations for basic cable service rate regulation proceedings (including, without limitation, the conduct of hearings), consistent with the Act and the FCC Rules.

(Code 1969, § 119.13)

The failure of the city clerk-treasurer to give the notices or to mail copies of reports as required by this article shall not invalidate the decisions or proceedings of the city commission, so long as there is substantial compliance with this article.

(Code 1969, § 119.14)

In addition to the requirements of this article, the city commission may, in its sole discretion, hold additional public hearings upon such reasonable notice as the city commission shall prescribe.

(Code 1969, § 119.15)

The city shall possess all powers conferred by the Act, the FCC Rules, the cable operator's franchise, and all other applicable law. The powers exercised pursuant to the Act, the FCC Rules, and this article shall be in addition to powers conferred by law or otherwise. The city may take any action not prohibited by the Act and the FCC Rules to protect the public interest in connection with basic cable service rate regulation.

(Code 1969, § 119.16)

The city may pursue any and all legal and equitable remedies against the cable operator (including, without limitation, all remedies provided under a cable operator's franchise with the city) for failure to comply with the Act, the FCC Rules, any orders or determinations of the city pursuant to this article, any requirements of this article, or any rules or regulations promulgated hereunder. Subject to applicable law, failure to comply with the Act, the FCC Rules, any orders or determinations of the city pursuant to this article, any requirements of this article, or any rules and regulations promulgated hereunder, shall also be sufficient grounds for revocation or denial of renewal of a cable operator's franchise.

(Code 1969, § 119.17)

In the event of any conflict between this article and the provisions of any prior ordinance or any franchise, permit, consent agreement or other agreement with a cable operator, then the provisions of this article shall control.

(Code 1969, § 119.19)

(a)

Under the Uniform Video Services Local Franchise Act, video service providers may obtain a franchise to provide video services in the city using a standardized, uniform form of franchise agreement established by the Michigan Public Service Commission (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 related provisions.

(b)

Telecommunications providers who obtain such a standardized, uniform form of franchise agreement generally will have previously obtained from the city 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 the city and the public when such providers are providing video services.

(d)

Other video service providers, in particular new providers or existing cable companies, may not have a Metro Act permit issued by the city.

(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 public rights-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 state laws 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 public rights-of-way.

(g)

The state 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 rights-of-way by regulating the use and occupation of such rights-of-way by video service providers who have a standardized, uniform franchise but who lack a Metro Act permit from the city. This article does so by setting forth terms and conditions for such usage and occupation from the forms of the Metro Act permit approved by the MPSC and approved by the legislature in subsection 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 a video service or communications network in public rights-of-way.

(Ord. of 12-12-2007)

This article 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.

(ord. of 12-12-2007)

The following definitions apply to this article in its entirety.

Act means the Uniform Video Services Local Franchise Act, being Act 480 of the Public Acts of 2007, MCL 484.3301 and following, as amended from time to time.

City means the City of Sturgis.

Claims shall have the meaning set forth in subsection 54-207(a).

Facilities means 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 city.

Franchise agreement means the franchise agreement entered into or possessed by a video service provider with the city as required by subsection 3(1) of the act, if it is the standardized, uniform form of franchise agreement established by the MPSC.

Manager means the city's manager or his or her designee.

Metro Act means the Metropolitan Extension Telecommunications Rights-of-Way Oversight Act, being Act No. 48 of the Public Acts of 2002, MCL 484.3101 and following.

Metro Act permit means a permit to use the public right-of-way issued by the city under its ordinance implementing the Metro Act after a provider's application for same to the city as set forth in such ordinance. The city's ordinance implementing the Metro Act is contained in article IV of chapter 54 of this Code.

Metro authority shall have the same meaning as "authority" in the Metro Act.

MPSC means the Michigan Public Service Commission, and shall have the same meaning as the term "commission" in the act and the Metro Act.

Permittee means a video service provider with a currently valid franchise agreement but without a currently valid Metro Act permit. Upon applying to the city for and then obtaining a Metro Act permit from the city, 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 the city enter into a voluntary franchise agreement as described in subsection 54-211(b).

Person means an individual, corporation, association, partnership, governmental entity, or any other legal entity.

Public right-of-way shall have the same meaning as in the act.

Street construction and street resurfacing shall have the meanings set forth in subsection 54-206(i).

Video service shall have the same meaning as in the act.

Video service provider shall have the same meaning as in the act.

(Ord. of 12-12-2007)

(a)

Compliance, insurance exception. All permittees shall comply with the following provisions of this article, except that a permittee need not comply with the insurance provisions of subsections 54-208(a) through 54-206(f) below, if it is required by subsection II.J of its franchise agreement (pertaining to incumbent video providers continuing certain insurance provided under their preceding franchise) to provide certain insurance.

(Ord. of 12-12-2007)

(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 the city);

(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 the city 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 the city, permittee shall submit route maps showing the location of the facilities to the city, in the same manner and subject to the same provisions as apply to telecommunications providers under sections 6(7) and 6(8) of the Metro Act, MCL 484.3106(7) and (8).

(c)

As-built records. 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 the facilities or portions thereof in the public right-of-way. Upon request by the city, permittee shall inform the city as soon as reasonably possible of any changes from previously supplied maps, records, or plans and shall mark up maps provided by the city so as to show the location of the facilities.

(Ord. of 12-12-2007)

(a)

 [Reserved]

(b)

Overlashing. permittee shall not allow the wires or any other facilities of a third party to be overlashed to permittee's facilities without the city's prior written consent. The city's right to withhold written consent is subject to the authority of the MPSC under section 361 of the state 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 the city 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 the city may determine is in the public interest to remove or alleviate the burden, and permittee shall do so within a reasonable time period. The city 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 the city 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 city, the third priority to the state 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 city in the exercise of its powers, including the police power and other powers reserved to and conferred on it by the state.

(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 the city, 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, the city may make the repair and permittee shall pay the costs the city 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 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, upon compliance with section 66-57, 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 city. 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 the manager.

(h)

Installation and maintenance. The construction and installation of the facilities shall be performed pursuant to plans approved by the city. 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 the city approves an alternate location. Permittee may perform maintenance on the facilities without prior approval of the city, provided that permittee shall obtain any and all permits required by the city in the event that any maintenance will disturb or block vehicular traffic or are otherwise required by the city.

(i)

Pavement cut coordination. Permittee shall coordinate its construction and all other work in the public right-of-way with the city'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").

(1)

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 the city.

(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 the use and occupation of the public right-of-way, including the police powers of the city; 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 the city or other governmental entity as may be required by law, including, without limitation, all utility line permits and highway permits. The city 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's Public Service Commission) and the National Electric Code (latest edition). 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 permittee's right to challenge laws, statutes, ordinances, rules or regulations now in force or established in the future.

(k)

Street vacation. If the city 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 the city or a court of competent jurisdiction. Permittee shall relocate its facilities to such alternate route as the city and permittee mutually agree, applying reasonable engineering standards.

(l)

Relocation. If the city 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 the city and permittee mutually agree, applying reasonable engineering standards. The work shall be completed within a reasonable time period.

(m)

Public emergency. The city 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, the city 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 the city.

(n)

MISS DIG. If eligible to join, permittee shall subscribe to and be a member of "MISS DIG," the state 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's 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.

(Ord. of 12-12-2007)

(a)

Indemnity. Permittee shall defend, indemnify, protect, and hold harmless the city, 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 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. The city shall notify permittee promptly in writing of any such claims and the method and means proposed by the city for defending or satisfying any such claims. The city shall cooperate with permittee in every reasonable way to facilitate the defense of any such claims. The city shall consult with permittee respecting the defense and satisfaction of such claims, including the selection and direction of legal counsel.

(c)

Settlement. The city 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 the city for which permittee is responsible hereunder.

(Ord. of 12-12-2007)

(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 the city. 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 the city, by providing reasonable evidence of its financial resources to the city. The city'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 $5,000,0000.00.

(2)

Liability insurance for sudden and accidental environmental contamination with minimum limits of $500,00.00 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 the city.

(3)

Automobile liability insurance in an amount not less than $1,000,000.00.

(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 coverages 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. The city 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 city. Permittee shall annually provide the city 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 or by surplus line carriers on the state insurance commission 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.

(d)

Deductibles. If the insurance policies required by this article are written with retainages or deductibles in excess of $50,000.00, they shall be approved by manager in advance in writing. Permittee shall indemnify and save harmless the city 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 section. 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 the city, 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).

(Ord. of 12-12-2007)

(a)

Municipal requirement. The city may require permittee to post a bond (or letter of credit), in the amount provided in section 15(3) of the Metro Act, as amended (MCL § 484.3115(3)).

(Ord. of 12-12-2007)

(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.

(1)

For purposes of subsection 54-210(a), "cable" means any wire, coaxial cable, fiber optic cable, feed wire or pull wire.

(b)

Removal; above ground. As soon as practicable after the expiration of the term of a franchise agreement, permittee, or its successor or 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 the city 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 the city.

(Ord. of 12-12-2007)

(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 act allows municipalities and providers to mutually agree to act permit terms differing from those in the standard forms of 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 act permit from the city.

(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 the city 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 a fine of $500.00 or such other amount as may be specified in any fine schedule compiled, from time to time, by the city and filed with the court or a city agency of competent jurisdiction. Nothing in this section shall be construed to limit the remedies available to the city in the event of a violation by a permittee of this article.

(e)

Authorized city officials. The manager (which includes his or her designee) is hereby designated as the authorized city official 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 under this article as provided by this Code.

(Ord. of 12-12-2007)