(a) Application.
(1) Unless exempted under this chapter, a valid certificate of registration shall be required for such utility service provider with any element of a utility system located in a public right-of-way in the City. Any utility system or element of a utility system located in a public right-of-way in the City for which a valid certificate of registration for the utility service provider is required and has not been obtained from the City shall be deemed to be a nuisance and an unauthorized use of the public right-of-way the City may exercise any remedies or rights it has, including, but not limited to, abating the nuisance, taking possession of the utility system or any element of the utility system, and/or prosecuting the violator.
(2) The utility service provider shall apply to the City Manager for a certificate of registration or the renewal of a certificate of registration. The City Manager shall determine the form of the application. An application shall include the following information and fee:
A. Detailed identification information about the utility service provider; a copy of the current incorporation certificate of the applicant, if applicable, both regular and emergency contact information for the utility service provider; a brief description of each utility service provided or proposed to be provided; a copy of each approval required by law, by any applicable authority, to provide any utility service described in the application, evidence of reasonable insurance coverage by the utility service provider; and any other relevant information the City Manager deems necessary to determine the fitness of the utility service provider.
B. If requested by the City Manager or the applicant, the applicant utility service provider and the City must meet to coordinate future plans for the public right-of-way between the utility service provider and the City.
C. An application fee of Five Hundred Dollars ($500.00) shall be paid to the City at the time an application for a certificate of registration is filed with the City. No part of an application fee is returnable to the applicant.
(b) Decision by City Manager. Unless the applicant agrees to an extension of the maximum decision time, the City shall have a maximum time period of ninety (90) consecutive calendar days from the date a complete application for a certificate of registration by a utility service provider is received by the City to make a decision on an application for a certificate of registration. Unless the applicant agrees to an extension of the maximum decision time, failure of the City to make a decision on an application for a certificate of registration shall be considered the same as an approval of the application by the City.
(c) Criteria for Issuance. In deciding whether to issue a certificate of registration, the City Manager shall consider: whether the issuance of the certificate of registration will contribute to the health, safety, and welfare of the City and its citizens; whether the issuance of the certificate of registration will be consistent with this chapter; whether the applicant has submitted a complete application and has secured all certificates and other authorizations required by law in order to construct and operate a system in the manner proposed by the applicant; whether the applicant is delinquent on any taxes or other obligations owed to the City, to Montgomery County, Ohio, or to the State of Ohio; whether the applicant has the requisite financial, managerial, and technical ability to fulfill all the obligations under this chapter and the issuance of a certificate of registration, and any other applicable law.
(d) Denial of Application. The City Manager shall have the right to deny an application for a certificate of registration for adequate cause. If requested in writing by the applicant, the City Manager must provide to the applicant in written form specific factual findings in support of the decision by the City Manager to deny the application for a certificate of registration. Any decision by the City Manager to deny an application for a certificate of registration is appealable by the applicant to the City Council in the manner set forth in Section 926.25.
(e) Expiration of Certificate. Unless terminated by the City at an earlier date, a certificate of registration shall expire one year from the date of issuance by the City.
(f) Responsibilities of Provider.
(1) When required by these Codified Ordinances, a utility service provider with a valid certificate of registration must obtain a revocable right of way privilege permit.
(2) The provider must keep all the information required in the application by the City current.
(3) When requested by the City, a public or private utility service provider, with a utility system element located or proposed to be located in a public right-of-way in the City, must meet with the City to coordinate future plans for the public right-of-way between the utility service provider and the City.
(4) A utility service provider with any utility system element located or proposed to be located in a right-of-way in the City must provide the City with up-to-date accurate plans in sufficient detail and in a format acceptable to the City showing the location of all elements of the utility system located in the right-of-way in the City.
(5) In addition to a certificate of registration, providers shall obtain any and all regulatory approvals, permits, authorizations, or licenses necessary for the offering or provision of such services from the appropriate Federal, State, and local authorities and, upon the City's reasonable request, shall provide copies of such documents to the City.
(6) A certificate of registration issued pursuant to this chapter shall not entitle a provider to use, alter, convert to, or interfere with, the facilities, easements, poles, conduits, lines, pipelines, wires, fiber, cable, or any other real or personal property of any kind whatsoever under the management or control of the City or under the management and control of another utility provider that is legally occupying the city right-of-way.
(g) Limitation on Rights of Provider. A certificate of registration shall not convey equitable or legal title in the rights-of-way. A certificate of registration is only the nonexclusive, limited right to occupy rights-of-way in the City for the limited purpose and for the limited period stated in the certificate of registration and in accordance with this chapter and any associated permit. For those providers with a valid gas or electric franchise, the provisions of a certificate of registration shall be deemed regulatory in nature and shall not be interpreted to limit the right to occupy the rights-of-way which may have been granted by such franchise. The rights to occupy the right-of-way itself may not be subdivided or subleased, provided, however, that two or more providers may collocate facilities in the same area of the rights-of-way so long as each provider complies with the provisions of this chapter. A certificate of registration does not excuse a provider from obtaining appropriate access or pole attachment agreements before collocating its facilities on facilities of others, including the City's facilities. A certificate of registration does not prevent a provider from leasing space in or on the provider's system, so long as the sharing of facilities does not cause a violation of law, including the provisions of this chapter. A certificate of registration does not excuse a provider from complying with any provisions of this chapter and other applicable laws.
(h) Relocation of Equipment.
(1) A provider must promptly and at its own expense, with due regard for seasonal working conditions, permanently remove and relocate its equipment and facilities in the right-of-way whenever the City Manager requests such removal and relocation, and shall restore the right-of-way to the same condition it was prior to said removal or relocation. The City Manager may make such request to prevent interference by the company's equipment or facilities with:
A. A present or future City use of the right-of-way,
B. A public improvement undertaken by the City,
C. An economic development project in which the City has an interest or investment,
D. When the public health, safety and welfare require it, or
E. When necessary to prevent interference with the safety and convenience of ordinary travel over the right-of-way.
(2) Notwithstanding the foregoing, no person shall be required to remove or relocate its equipment from any right-of-way which has been vacated in favor of a non-city entity unless and until the reasonable costs thereof are first paid to the person therefor.
(i) Location of Equipment Prior to Excavation. Before the start date of any right-of-way excavation, each provider who has equipment in the area to be excavated shall contact the Ohio Utilities Protection Service (OUPS) and shall mark the horizontal and approximate vertical placement of all said equipment. Any provider whose equipment is estimated to be less than twenty inches below a concrete or asphalt surface shall notify and work closely with the excavation contractor to establish the exact location of its equipment and the best procedure for excavation.
(j) Work by City in Right of Way; Removal of Provider's Equipment; Damage to Equipment in Right of Way; Costs.
(1) When the City does or causes to be done work in the right-of-way and finds it necessary to maintain, support, or move a provider's equipment to protect it, the City Manager shall notify the provider's local representative as early as is reasonably possible. The costs associated therewith will be billed to that provider and must be paid within thirty (30) days from the date of billing.
(2) Each provider shall be responsible for the cost of repairing any equipment in the right-of-way which it or its equipment damages. Each provider shall be responsible for the costs of repairing any damage to the equipment of another provider caused during the City's response to an emergency occasioned by that provider's equipment.
(k) Vacating of Right-of Way.
(1) If the City vacates a right-of-way which contains the equipment of a provider, and if the vacation does not require the relocation of the provider's equipment, the City shall reserve, to and for itself and all providers having equipment in the vacated right-of-way, the right to install, maintain and operate any equipment in the vacated right-of-way and to enter upon such right-of-way at any time for the purpose of reconstructing, inspecting, maintaining or repairing the same.
(2) If the vacation requires the relocation of the provider's equipment, and
A. If the vacation proceedings are initiated by the provider, the provider must pay the relocation costs; or
B. If the vacation proceedings are initiated by the City, the provider must pay the relocation costs unless otherwise agreed to by the City and the provider; or
C. If the vacation proceedings are initiated by a person or persons other than the provider, such other person or persons must pay the relocation costs.
(l) Discontinued Operations; Abandoned Equipment.
(1) A provider who has determined to discontinue its operations in the City must either:
A. Provide information satisfactory to the City Manager that the provider's obligations for its equipment in the right-of-way under this chapter have been lawfully assumed by another provider; or
B. Submit to the City Manager a proposal and instruments for transferring ownership of its equipment to the City. If a provider proceeds under this paragraph, the City may, at its option, purchase the equipment, require the provider, at its own expense, to remove it, or require the provider to post a bond in an amount sufficient to reimburse the City for reasonably anticipated costs to be incurred in removing the equipment.
(2) The equipment of a provider who fails to comply with the discontinued operations provisions of this chapter and which remains unused shall be deemed to be abandoned. Unused equipment means facilities located in the rights-of-way which have remained unused for a period of two years and for which the provider is unable to:
A. Provide the City with a credible plan detailing the procedure by which the provider intends to begin actively using such facilities within the next twelve months; or
B. That it has a potential purchaser or user of the facilities who will be actively using the facilities within the next twelve months; or
C. That the availability of such facilities is required by the provider to adequately and efficiently operate its system. Abandoned equipment is deemed to be a nuisance. The City may exercise any remedies or rights it has at law or in equity, including, but not limited to:
i. Abating the nuisance;
ii. Taking possession of the equipment and restoring it to a useable condition;
iii. Requiring removal of the equipment by the provider, or the provider's successor in interest.
(3) Any provider who has unused and abandoned equipment in any right-of-way shall remove it from that right-of-way during the next scheduled excavation, or at such different time as designated by the City Manager, unless this requirement is waived by the City Manager.
(4) In the event of any conflict with the provisions of this subsection with the provisions of federal law, the provisions of the federal law shall control.
(Ord. 2018-09. Passed 6-19-18.)