§ 38-24. Use of public right-of-way.

(a)

Overlashing. A permittee shall not allow the wires or any other facilities of a third party to be overlashed to the 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 Michigan telecommunications act (MCL 484.2361).

(b)

No burden on public right-of-way. The permittee, its contractors, subcontractors, and the facilities shall not unduly burden or interfere with the present or future use of any of the public right-of-way. The permittee's aerial cables and wires shall be suspended so as to not endanger or injure persons or property in or about the public right-of-way. If the city reasonably determines that any portion of the facilities constitutes an undue burden or interference, due to changed circumstances, the permittee, at its sole expense, shall modify the facilities or take such other actions as the city may determine is in the public interest to remove or alleviate the burden, and the permittee shall do so within a reasonable time period. The city shall attempt to require all occupants of a pole or conduit whose facilities are a burden to remove or alleviate the burden concurrently.

(c)

No priority. This article does not establish any priority of use of the public right-of-way by the permittee over any present or future permittees or parties having agreements with the 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 of Michigan.

(d)

Restoration of property. The permittee, its contractors and subcontractors shall immediately (subject to seasonal work restrictions) restore, at the permittee's sole expense, in a manner approved by the 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 the permittee's option, better) condition as that which existed prior to the disturbance. In the event that the permittee, its contractors or subcontractors fail to make such repair within a reasonable time, the city may make the repair and the permittee shall pay the costs the city incurred for such repair.

(e)

Marking. The permittee shall mark its facilities installed after the effective date of the ordinance from which this article is derived as follows: Aerial portions of the facilities shall be marked with a marker on the permittee's lines on alternate poles which shall state the permittee's name and provide a toll-free number to call for assistance. Direct buried underground portions of the facilities shall have a conducting wire placed in the ground at least several inches above the permittee's cable (if such cable is nonconductive); at least several inches above that, a continuous colored tape with a statement to the effect that there is buried cable beneath; and stakes or other appropriate above ground markers with the permittee's name and a toll-free number indicating that there is buried cable below. Bored underground portions of the facilities shall have a conducting wire at the same depth as the cable and shall not be required to provide the continuous colored tape. Portions of the facilities located in conduit, including conduit of others used by the permittee, shall be marked at its entrance into and exit from each manhole and handhole with the permittee's name and a toll-free telephone number.

(f)

Tree trimming. The permittee may trim trees upon and overhanging the public right-of-way so as to prevent the branches of such trees from coming into contact with the facilities, consistent with any standards adopted by the city. The permittee shall dispose of all trimmed materials. The permittee shall minimize the trimming of trees to that essential to maintain the integrity of the facilities. Except in emergencies, all trimming of trees in the public right-of-way shall have the advance approval of manager.

(g)

Installation and maintenance. The construction and installation of the facilities shall be performed pursuant to plans approved by the city. The open cut of any public right-of-way shall be coordinated with the city manager or his designee. The permittee shall install and maintain the facilities in a reasonably safe condition. If the existing poles in the public right-of-way are overburdened or unavailable for the permittee's use, or the facilities of all users of the poles are required to go underground then the permittee shall, at its expense, place such portion of its facilities underground, unless the city approves an alternate location. The permittee may perform maintenance on the facilities without prior approval of the city, provided that the 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.

(h)

Pavement cut coordination.

(1)

The 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").

(2)

The goals of such coordination shall be to encourage the permittee to conduct all work in the public right-of-way in conjunction with or immediately prior to any street construction or street resurfacing planned by the city.

(i)

Compliance with laws. The permittee shall comply with all valid and enforceable federal and state statutes and regulations; and all valid and enforceable local regulations regarding the use and occupation of the public right-of-way, including the police powers of the city; regarding the construction, installation, and maintenance of its facilities, now in force or which hereafter may be promulgated. Before any installation is commenced, the permittee shall secure all necessary permits, licenses and approvals from the 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. The permittee shall comply in all respects with applicable codes and industry standards, including but not limited to the National Electrical Safety Code (latest edition adopted by the state public service commission) and the National Electrical Code (latest edition). The permittee shall comply with all zoning and land use ordinances and historic preservation ordinances as may exist or may hereafter be amended. This section does not constitute a waiver of the permittee's right to challenge laws, statutes, ordinances, rules or regulations now in force or established in the future.

(j)

Street vacation. If the city vacates or consents to the vacation of public right-of-way within its jurisdiction, and such vacation necessitates the removal and relocation of the permittee's facilities in the vacated public right-of-way, the permittee shall consent to the vacation and remove its facilities at its sole cost and expense when ordered to do so by the city or a court of competent jurisdiction. The permittee shall relocate its facilities to such alternate route as the city and the permittee mutually agree, applying reasonable engineering standards.

(k)

Relocation. If the city requests the permittee to relocate, protect, support, disconnect, or remove its facilities because of street or utility work, or other public projects, the permittee shall relocate, protect, support, disconnect, or remove its facilities, at its sole cost and expense, including where necessary to such alternate route as the city and the permittee mutually agree, applying reasonable engineering standards. The work shall be completed within a reasonable time period.

(l)

Public emergency. The city shall have the right to sever, disrupt, dig-up or otherwise destroy facilities of the permittee if such action is necessary because of a public emergency. If reasonable to do so under the circumstances, the city shall attempt to provide notice to the permittee. Public emergency shall be any condition which poses an immediate threat to life, health, or property caused by any natural or manmade disaster, including, but not limited to, storms, floods, fire, accidents, explosions, water main breaks, hazardous material spills, etc. The permittee shall be responsible for repair at its sole cost and expense of any of its facilities damaged pursuant to any such action taken by the city.

(m)

MISS DIG membership. If eligible to join, the permittee shall subscribe to and be a member of "MISS DIG," the association of utilities formed pursuant to Act 53 of the Public Acts of 1974, as amended (MCL 460.701 et seq.), and shall conduct its business in conformance with the statutory provisions and regulations promulgated thereunder.

(n)

Underground relocation. If the permittee has its facilities on poles of Consumers Energy, Detroit Edison or another electric or telecommunications provider and Consumers Energy, Detroit Edison or such other electric or telecommunications provider relocates its system underground, then the permittee shall relocate its facilities underground in the same location at the permittee's sole cost and expense.

(o)

Identification. All personnel of the permittee and its contractors or subcontractors who have as part of their normal duties contact with the general public shall wear on their clothing a clearly visible identification card bearing the permittee's name, their name and photograph. The permittee shall account for all identification cards at all times. Every service vehicle of the permittee and its contractors or subcontractors shall be clearly identified as such to the public, such as by a magnetic sign with the permittee's name and telephone number.

(Ord. No. 2007-14, § 3(7.206), 12-17-2007)