(A) General terms and conditions. The following terms and conditions shall apply to all persons directing or performing disruption or use of the village right-of-way as applicable and be considered a part of every disruption and use permit issued under this subchapter. The duties, prohibitions and requirements of and village authority regarding permittees in subsections (2), (3), (8), (9) and (11) through (22) apply to all persons.
(1) Nonexclusive. A permit shall be nonexclusive and does not restrict the village from at any time issuing additional permits to other persons to disrupt and/or use the same village right-of-way. The issuance of a permit does not establish any priority for the disruption and/or use of a village right-of-way and permittees shall coordinate their work to avoid conflicts with the village and all other persons lawfully working in the right-of-way.
(2) Compliance with permit/ordinances. A permittee shall strictly comply with all of the terms and conditions of a permit and shall comply with all applicable laws, codes, restrictions and ordinances, including the public utility notification provisions of Public Act 53 of 1974, being M.C.L.A. § 460.701 et seq. as amended, and the soil erosion and sedimentation control requirements of Public Act 451 of 1994, being M.C.L.A. §§ 324.9101 et seq., as amended.
(3) Other permits and approvals. A permittee shall not disrupt and/or use any village right-of-way without first obtaining all other required village or other governmental permits and approvals and paying all other applicable fees.
(4) Transfer/assignment. A disruption permit is not assignable or transferable. A use permittee shall not transfer, convey and/or assign any of the rights/privileges granted to it by the village in its permit in whole or in part, voluntarily, involuntarily or by operation of law, merger, consolidation, substantial change in the ownership or control or other means, without prior written consent of the Village Clerk, which shall not be withheld for reasons unrelated to the ability and/or willingness of the proposed transferee/assignee to comply with the permit and all of its terms and conditions. If a permit is assigned in whole or in part with the approval of the village, the terms and conditions of the permit shall be binding upon the successors or assigns of the permittee.
(5) As-built plans. A permittee shall deliver to the village as-built plans in a form and at a scale acceptable to the Village Clerk for the permitted improvements which are in the village right-of-way within 60 days after completion of installation or commencement of use, whichever first occurs.
(6) G.I.S. Within 60 days of a request by the village, a permittee shall provide the village with a Geographical Information System layer in a media form acceptable to the Village Clerk and/or G.I.S. consultant, which accurately portrays the permittee’s as-built improvements and shall be updated to accurately reflect any changes to the same which are approved by the village.
(7) Additional and/or future use. The issuance of a permit does not confer rights to any additional disruption and/or use of the village’s right-of-way, except as specifically granted and described in the permit.
(8) Village future use. The issuance of a permit does not prohibit the village from requiring
modifications to permittee’s construction activities or from using the village’s right-of-way in a manner which may interfere with, disrupt or prevent the permittee’s disruption and/or use of the same. Permittees acknowledge and accept this risk and shall not be entitled to receive any compensation from the village in the event that the village uses the village right-of-way in that manner. The expense of making any necessary modifications of its improvements in order to accommodate a conflict shall be borne by the permittee.
(9) No interference in village rights-of-way. A permittee shall not disrupt a right-of-way or construct, install, locate, maintain, use or operate its improvements in the village’s rights-of-way in a manner that interferes with village or other lawful use, existing water mains, gas lines, sanitary sewer lines, drains or drain pipes or other improvements that are existing in the village’s right-of-way. Any portion of the permittee’s improvements that so interfere or that will interfere with a proposed public utility or street improvement project shall, at the request of the village, be removed or modified by the permittee at its cost, with permittee not entitled to receive any compensation from the village. Such removal or modification shall be made within a reasonable time of request, as stated in a written notice from the village. If the removal or modification is not made within such time, the village may remove or modify the interfering improvement(s) to the extent required and bill the permittee for the expenses incurred in doing so. If such a bill is not paid in full within 30 days of the date of billing, the village may recover its expenses from permittee’s bond. With regard to interferences with the use of the right-of-way for pedestrian, vehicular or other related purposes, all activities of a permittee shall be undertaken in a manner to minimize interference, and all due precautions shall be taken to maximize public safety.
(10) Plan and permit compliance costs. The installation of improvements in and the permittee’s disruption and/or use of the village’s rights-of-way shall be in compliance with the plans submitted to and approved and all permits issued by the village. All costs of the permittee’s improvements in use of the right-of-way shall be the sole responsibility of the permittee. All construction and installation of improvements in the village’s rights-of-way shall be performed by the permittee in compliance with the schedule submitted to and approved by the Village Clerk, shall be done in a good and workmanlike fashion in accordance with recognized construction industry and other applicable standards and shall be subject to inspection and final approval of the village.
(11) Restoration of property. The permittee shall restore any portion of the village’s right-of-way that is disrupted by the construction, installation, location, maintenance, use or operation of its improvements. The disrupted right-of-way shall be restored and returned to a condition that is as good or better than that which existed at the time the disruption occurred. The time period and the manner in which the restoration is to take place shall be established and supervised at permittee’s expense by the village, with permittee to pay the village’s supervision costs within 30 days of the village’s bill for same. If the bill is not timely paid, the village may recover the costs from any bond posted by permittee. In the event the permittee does not complete the restoration in that time and/or does not undertake the restoration in the manner approved by the village, the village may, upon written notice to the permittee, complete the repair and restoration and recover its costs from any bond posted by the permittee. If the bond does not cover all of the costs incurred by the village, the permittee shall immediately pay the outstanding balance of the costs to the village and reinstate the required bond.
(12) Maintenance and repair. During the term of a permit, the permittee shall maintain and repair its improvements in a good and workmanlike condition. If permittee fails to do so, the village may send a written notice to the permittee to correct the defective condition within a specified time. If the defective condition is not corrected within the time allowed, the village shall be entitled, at its sole discretion, to perform said maintenance and repair, correct the defect and/or remove the improvement and bill the cost of the same to the permittee. If such a bill is not paid in full within 30 days of the date of billing, the village may recover its costs from any bond posted by permittee. In the event the bond does not cover all of the costs incurred by the village, the permittee shall immediately pay the outstanding balance of the costs to the village and reinstate the required bond.
(13) Removal and/or relocation for or by village. A permittee shall remove, relocate and/or disconnect any portion of its improvements located in the village’s rights-of-way when the permittee is advised in writing by the village that the same is necessary for the village to do any construction, excavation, maintenance, repair or other work in furtherance of the public health, safety and welfare. The village may remove, relocate, damage, disrupt and/or disconnect permittee’s improvements in the event of an emergency, including but not limited to a civil disturbance, disaster, accident, fire, flood or other severe weather occurrence, if the same is determined to be necessary to protect the public health, safety and welfare, with the village not being liable to the permittee or any persons receiving the permittee’s services for any damages or injuries caused by the village’s actions.
(14) Vacation/abandonment. If a right-of-way is vacated, discontinued, abandoned, terminated and/or released, the permittee’s right to use that area of land shall immediately terminate and the permittee shall remove its improvements therefrom.
(15) Removal upon expiration or termination of use permit. Upon the expiration or termination of a permit or if the permittee abandons or ceases operating or using its improvements in the village’s rights-of-way within three months or a longer time period established by the Village Council, the permittee shall remove all of its improvements from the village’s right-of-way and restore the area to a condition that is as good or better than that which existed prior to the installation and use of its improvements in the village right-of-way. If the permittee and village agree that it would not be in the best interest of the public health, safety and welfare for permittee to remove its improvements and the village agrees to accept ownership of same, at no cost to the village, permittee shall convey the improvements to the village, who may thereafter use the improvements. The decisions as to whether a permittee shall remove its improvements from the village's right-of-way and whether the village will accept ownership, and if so, any conditions, is in the sole discretion of the village.
(16) Notice of commencement and completion of permitted activities. At least 48 hours prior to commencing or performing activities allowed by a permit, the permittee shall notify the Village Clerk by providing a description of the location, anticipated time and personnel, vehicles and equipment that will be involved. Within five days of completing all permitted activities, permittee shall notify the Village Clerk so that final inspection may be made.
(17) Personnel and equipment identification. Personnel, including contractors, of permittee conducting permitted activities shall at all times wear or have clearly visible identification as a representative of permittee, and all vehicles and equipment used in the activities shall be clearly identified with permittee’s name.
(18) Poles and transmission lines. All improvements erected under a permit shall be firmly installed so as not to create any obstruction to sidewalks, service walks, side drives, approaches and other vehicle or pedestrian areas. Any improvements erected in public or private parking areas must be in conformity with the code of ordinances and at locations approved by the Village Clerk.
(19) Underground improvements. All operating or conducting improvements used for the purpose of transmitting electrical energy or video, voice or data communications which are laid below the surface of the ground shall be insulated and protected in parallel with adjacent property lines and be installed at such locations and depth as approved by the Village Clerk. All service connections used shall be connected only with the nearest main source of supply laid in the right-of-way nearest to the building being connected to the service. Service drops to commercial buildings less than 30 feet in length that would require additional poles shall be placed underground.
(20) Village inspection. The Village Clerk and/or the Department of Public Service shall inspect construction of all improvements and connections made. The Village Clerk shall determine the street or streets in which it shall be lawful to install aboveground and underground improvements, and no person shall install any improvements contrary to such determinations.
(21) Traffic control. The permittee shall furnish, install and maintain all necessary traffic controls and protection during disruption activities in accordance with the current edition of the Michigan Manual of Uniform Traffic-Control Devices and any special conditions of the permit.
(22) Private property. A permit does not authorize entry upon private property or the use of private water supplies.
(B) Excavations. This division applies to all persons and right-of-way excavation work, even if a disruption permit is not required.
(1) At least 48 hours before opening or excavating in any right-of-way, except in cases of emergency and for service connection installations, the person intending to commence such excavation shall first notify the Village Clerk in writing. In any openings and refillings of all excavations made, the relaying of the pavement and other work necessary to the complete restoration of the right-of-way and adjoining areas to an equally good condition as when disturbed shall be under the supervision of the Village Clerk. No excavation shall be allowed to remain open or encumbered for a longer period than authorized by the village. The Village Clerk may extend the period allowed for the completion of such work upon proper written request by the person doing the excavation.
(2) Any earth removed in making such excavation shall be removed and/or restored as conditions warrant. Where pavement has been broken, no debris, broken concrete or incompatible substances shall be used in refilling and pavement shall be relaid and maintained in as good as the surrounding pavement.
(C) Indemnification.
(1) The village and its officials, officers, employees, agents, representatives and contractors shall not be liable or responsible for any damages or injuries that occur to or are suffered by any person or property which are caused by or result from the permittee's or its contractor's construction, installation, location or maintenance of improvements in or from the permittee's use of the right-of-way. As a condition of every permit, the permittee shall execute and deliver to the village an indemnification agreement in a form approved by the Village Attorney, in which the permittee agrees to indemnify and hold harmless the village and its officials, officers, employees, agents, volunteers, representatives and contractors from such liability and any resulting costs and expenses, including attorney fees.
(2) A permittee shall also agree to indemnify and hold the village and its officials, officers,
employees, agents, volunteers, representatives and contractors harmless from any claims or encumbrances which may be imposed as a result of any indebtedness by the permittee to any contractors, subcontractors or any other persons providing services, labor or materials to the permittee. If the village discovers that such a claim or encumbrance has been placed on or against a village right-of-way, the village shall notify the permittee in writing to remove the same within 30 days from said notice, with failure to remove such a claim grounds for revocation of permit. If the permittee fails to remove the claim or encumbrance from the village’s right-of-way within 30 days from the village’s written notice, the village may apply any bond posted by the permittee towards the village’s cost of completely removing the claim or encumbrance. The permittee shall have the affirmative obligation to inform the village of any claims or encumbrances that the permittee is aware have been placed on or against the village’s right-of-way.
(D) Insurance. The permittee shall, at its own cost, maintain in full force and effect during the term of each permit the following kinds of insurance with the limits set forth, with the company providing same to be licensed and admitted to do business in the State of Michigan and acceptable to the village:
(1) Comprehensive commercial general liability insurance on an occurrence basis, with liability
limits in an amount established by resolution of the Village Council, which liability insurance coverage shall include coverage for operations, products and completed operations, contractual liability, independent contractors and for explosion, collapse and underground liabilities, commonly referred to as “XCU” coverage;
(2) Motor vehicle insurance covering all owned and non-owned vehicles used in the permitted activities, including Michigan no-fault coverage, with liability limits in amounts established by resolution of the Village Council;
(3) Owner’s and contractor’s protective liability insurance with liability limits established by
resolution of the Village Council;
(4) Worker’s compensation insurance, including employer's liability coverage, in accordance
with applicable Michigan statutes;
(5) The village and its officials, officers, employees, agents, contractors and representatives
shall be named as additional insureds on the comprehensive commercial general liability insurance, owner's and contractor's protective liability insurance and the motor vehicle liability insurance to be obtained by permittee;
(6) The permittee shall furnish to the village certificates of insurance and, upon request, certified copies of each insurance policy that the permittee is required by this section to obtain. No insurance policy and coverage that the permittee is required to obtain and keep in full force and effect by this section shall be canceled, changed or subject to cancellation or reduction without at least 30-days' prior written notice to the village. If any coverage will expire during the term of a permit, the permittee shall deliver renewal certificates to the Village Clerk at least ten days prior to the expiration date.
(E) Stop work/use orders and permit revocations. All permits shall be subject to the issuance of stop work or stop use orders by the Village Clerk and revocation as provided in § 96.033.
(Ord. 169, passed 11-27-00)