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(a) Findings and Purpose.
(1) The City of Centerville, Ohio (the “City”) is vitally concerned with the use of all rights-of-way in the City as such rights-of-way are a valuable, and potentially limited, resource which must be utilized to promote the public health, safety, and welfare including the economic development of the City.
(2) Changes in the public utilities and communication industries have increased the demand and need for access to rights-of-way and placement of facilities and structures therein.
(3) It is necessary to comprehensively plan and manage access to, and structures and facilities in, the rights-of-way to promote efficiency, discourage duplication of facilities, lessen the public inconvenience of uncoordinated work in the rights-of-way, and promote the public health, safety, and welfare. Where it is in the best interest of the public health, safety, and welfare and the aesthetics of the City, the City shall take steps to encourage locating facilities underground.
(4) The City has authority under the Laws and Constitution of the State of Ohio, including but not limited to Article 18, Sections 3, 4, and 7, to regulate the rights-of-way which are used by public and private entities.
(b) Scope. The provisions of this chapter shall apply to all users of the rights-of-way. To the extent that any provision in this chapter conflicts with other chapters in the codified ordinances, the provisions of this chapter shall control.
(c) Definitions. For the purposes of this chapter, the following terms, phrases, words, and their derivations shall have the meanings as set forth herein. When not inconsistent with the context, words in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The words “shall” and “will” are mandatory and “may” is permissive. Words not defined shall be given their common and ordinary meaning. References hereafter to “sections” are, unless otherwise specified, references to sections in this chapter. Defined terms remain defined terms whether or not capitalized.
(1) “Affiliate” means each person who falls into one or more of the following categories: each person having, directly or indirectly, a controlling interest in a provider; or each person in which a provider has, directly or indirectly a controlling interest; or each officer, director, general partner, limited partner or shareholder holding an interest of fifteen percent or more, joint venturer or joint venture partner, of a provider; or each person, directly or indirectly, controlling, controlled by, or under common control with the provider; provided that affiliate shall in no event mean any limited partner or shareholder holding an interest of less than fifteen percent of such provider, or any creditor of such provider solely by virtue of its status as a creditor and which is not otherwise an affiliate by reason of owning a controlling interest in, being owned by, or being under common ownership, common management, or common control with, such provider.
(2) “Applicant” means any person who seeks to obtain or renew a certificate of registration or permit.
(3) “Application” means the process and format by which an applicant submits a request to obtain a certificate of registration or permit.
(4) “Bankruptcy Act” means the regulation promulgated by Title 11 of the United States Code.
(5) “Best efforts” means the best responsible efforts under the circumstances, taking into consideration, among the appropriate matters, all applicable laws, regulations, safety, engineering, and operational codes, available technology, human resources, weather and field conditions and cost.
(6) “Certificate of registration” means the document that may be issued to a provider and its unique system that allows permitting of the provider and its unique system.
(7) “City” means the City of Centerville, Ohio.
(8) “City Council” means the governing body of the City at Centerville, Ohio.
(9) “City Manager” means the administrative head of the municipal government known as the City of Centerville, Ohio.
(10) “Codified Ordinances” means the Codified Ordinances of the City of Centerville, Ohio.
(11) “Construct” means, but shall not be limited to, to dig, bore, tunnel, trench, excavate, obstruct, install wires, install conduit, install pipes, install transmission lines, install poles, install signs, or install facilities, other than landscaping or ornamental plantings, as required by this Chapter or as requested by the City, in, on, above, within, over, below, under, or through any part of the rights-of-way. Construct shall also include the act of opening and/or cutting into the surface of any paved or improved surface that is any part of the rights-of-way. Construct does not include minor maintenance.
(12) “Construction” means, but shall not be limited to, the act or process of digging, boring, tunneling, trenching, excavating, obstructing, installing wires, installing conduit, installing pipes, installing transmission lines, installing poles, installing signs, or installing facilities, other than landscaping or ornamental plantings as required by this Chapter or as requested by the City, in, on, above, within, over, below, under, or through any part of the rights-of-way. Construction shall also include the act of opening and/or cutting into the surface of any paved or improved surface that is part of the rights-of-way. Construction does not include minor maintenance.
(13) “Construction bond” means a bond posted with the City to ensure proper and complete construction, replacement and/or repair of a facility and/or the affected rights-of-way pursuant to a permit.
(14) “Construction cost” means the cost of installation, materials, engineering costs, and other incidental expenses and fees required for the construction, repair, or replacement of real and/or personal property or facilities affected by construction in the rights-of-way.
(15) “Right-of-way construction permit” means the permit as specified in Section 1080.17 et seq. of the Codified Ordinances which must be obtained before a person may construct in, locate in, occupy, maintain, move, or remove facilities from, in, or on a right-of-way.
(16) “Construction and major maintenance plan” means a written plan including maps of the expected location, design, other related equipment and facilities of a provider which describes in full the construction intended to be accomplished by the provider in the rights-of-way over the next calendar year.
(17) “County” means any county providing sewer and water service within the City but excludes contractors, agents, or other persons acting on behalf of said county.
(18) “Credible” means worthy of being believed.
(19) “Department of Public Works” means the Department of Public Works of the City.
(20) “Director of Public Works” means the Director of the Department of Public Works, or his or her designee.
(21) “Emergency” means a condition that poses a clear and immediate danger to life, health or safety of a person, or of a significant loss of real or personal property.
(22) “Facilities” means any tangible thing located in any rights-of-way within the City; but shall not include boulevard plantings, ornamental plantings, or gardens planted or maintained in the rights-of-way between a person's property and the street edge of pavement.
(23) “FCC” means the Federal Communications Commission or any successor thereto.
(24) “Full” means unable to accommodate any additional facilities:
A. In light of applicable standards and using current engineering practices as determined by the Director of Public Works;
B. Without negatively impacting the public health, safety, and welfare; or
C. Without violating any applicable laws, rules, or regulations.
(25) “In”, when used in conjunction with rights-of-way, means in, on, above, within, over below, under or through a rights-of-way.
(26) “Inspector” means any person authorized by the Director of Public Works to carry out inspections related to the provisions of this chapter.
(27) “Laws” means any local, state, or federal legislative, judicial or administrative order, certificate, decision, statute, constitution, ordinance, resolution, regulation, rule, tariff, or other requirement in effect either at the time of execution of this chapter or at any time during the location of, and/or while a provider's facilities are located in the public rights-of-way.
(28) “Minor maintenance” means the routine repair, replacement or upkeep of facilities, but does not include the act of opening and for cutting into the surface of any paved or improved surface that is part of the right-of-way.
(29) “Ohio Manual of Uniform Traffic Control Devices” means the uniform system of traffic control devices promulgated by the Ohio Department of Transportation pursuant to Ohio R.C. 4511.09.
(30) “Ohio R.C.” means the Revised Code of the State of Ohio.
(31) “Ohio Utility Protection Service” means the utility protection service as defined in Ohio R.C. 153.64 and 3781.26 or its statutory successor.
(32) “Open video service” means any video programming services provided by a person through use of rights-of-way, which provider is certified by the FCC to operate an open video system pursuant to Sections 651 et seq. of the Telecommunications Act of 1996 (codified at 47 U.S.C. Title VI, Part V), regardless of the facilities used.
(33) “Permit” means a right-of-way construction permit unless otherwise specified.
(34) “Permit cost” means all direct, incidental, and indirect costs borne by the City for permit issuance, permit oversight and any pavement degradation resulting from construction activity.
(35) “Permit fee” means money paid to the City for a permit to construct and or do minor maintenance in the rights-of-way.
(36) “Permittee” means any person to whom a right-of-way construction permit has been granted by the City and not revoked.
(37) “Person” means any natural or corporate person, business association, or other business entity including, but not limited to, a partnership, a sole proprietorship, a political subdivision, a public or private agency of any kind, a utility, a successor or assign of any of the foregoing, or any other legal entity.
(38) “Provider” means a person who owns or operates a system and has a valid certificate of registration. The City, county, RTA and cable television operators operating pursuant to a valid cable franchise shall also be considered providers.
(39) “PUCO” means the Public Utilities Commission of Ohio as defined in Ohio R.C. 4905.02.
(40) “Removal bond” means a bond posted to ensure the availability of sufficient funds to properly remove a provider's facilities upon abandonment, disuse, or discontinuance of a provider's use or occupation of the rights-of-way.
(41) “Restoration” means the process and the resultant effects by which a right- of-way is returned to a condition as good as or better than its condition immediately prior to construction. Restoration shall occur in accordance with the rules and regulations established by the Director of Public Works and as amended from time to time.
(42) “Right(s)-of-way” means the surface and space in, on, above, within, over, below, under or through any real property in which the City has an interest in law or equity, whether held in fee, or other estate or interest, or as a trustee for the public, including, but not limited to any public street, boulevard, road, highway, freeway, lane, alley, court, sidewalk, parkway, river, tunnel, viaduct, bridge, conduit or any other place, area, or real property owned by or under the legal or equitable control of the City that, consistent with the purposes for which it was dedicated, may be used for the purposes of constructing, operating, repairing or replacing a system. Rights- of-way shall not include buildings, parks, or other public property or easements that have not been dedicated to compatible uses, except to the extent the use or occupation of such property is specifically granted in a permit or approved by law.
(43) “Right(s)-of-way cost” means all direct, incidental and indirect costs borne by the City for the management, administration and regulation of the rights-of-way and this chapter.
(44) “RTA” means the Miami Valley Regional Transit Authority for purposes of public transportation.
(45) “Rule(s) and regulation(s)” means any rule and or regulation adopted by the Director of Public Works.
(46) “Service(s)” means the offering of any service for a fee directly to the public, or to such classes of users as to be effectively available directly to the public.
(47) “Supplementary application” means any application made to construct on or in more of the rights-of-way than previously allowed, or to extend a permit that had already been issued.
(48) “Surety Fund” means a formal pledge made to secure against loss, damage, or default.
(49) “System” means any system of conduit, ducts, cables, pipes, wires, lines, towers, antennae wave guides, optic fiber, microwave, or laser beams, and any associated converters, equipment, or facilities or utilities designed and constructed for the purpose of producing, receiving, amplifying, delivering or distributing service within the City.
(50) “System representative” means the specifically identified agent/employee of a provider who is authorized to direct field activities of that provider and serve as official notice agent for system related information. Any such system representative shall be required to be available at all times to receive notice of and immediately direct response to system related emergencies or situations.
(51) “Transfer” means the disposal by the provider, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation, or otherwise, of fifty-one percent or more at one time of the ownership or controlling interest in the system, or cumulatively fifty-one percent, or more, over the term of a certificate of registration of such interests to a corporation, partnership, limited partnership, trust, or association, or person or group of persons acting in concert.
(52) “Trenchless technology” means, but shall not be limited to, the use of directional boring, horizontal drilling, micro-tunneling and other techniques in the construction of underground portions of facilities which result in the least amount of disruption and damage to rights-of-way as possible.
(53) “Underground facilities” means all lines, cables, conduits, pipes, posts, tanks, vaults, wires and any other facilities which are located wholly or partially underneath rights-of-way.
(54) “Unused facilities” means facilities located in the rights-of-way which have remained unused for a period of twelve months and for which the provider is unable to: 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 that it has a potential purchaser or user of the facilities who will be actively using the facilities within the next twelve months; or that the availability of such facilities is required by the provider to adequately and efficiently operate its system.
(55) “Utility(ies)” means any water, sewer, gas, drainage, sprinkler, or culvert pipe and any electric power, telecommunication, signal, communication, or cable television conduit, fiber, wire, trackless trolley wires, cable, or operator thereof.
(56) “Utility corridor(s)” means those specific areas of the rights-of-way designated as such by the Director of Public Works pursuant to Section 1080.22 hereof.
(57) “Working day” means any Monday, Tuesday, Wednesday, Thursday, or Friday excluding legal holidays observed by the City. “Business day” shall have the same meaning as working day.
(Ord. 12-03. Passed 5-19-03; Ord. 05-17. Passed 4-17-17.)