§ 510.04 General Public Right-of-Way Use Regulations
   (a)   Public Right-of-Way Route. A completed initial and annual registration of a Service Provider to Occupy or Use the Public Right-of-Way under Sections 510.02 and 510.03 shall apply to only the types of Facilities and locations along the Public Right-of-Way that were identified by the Service Provider in the registration form.
   (b)   Nonexclusive Right to Occupy the Public Right-of-Way. Registration of a Service Provider granted under Sections 510.02 and 510.03 shall not confer any exclusive right, privilege, license or franchise to Occupy or Use the Public Right-of-Way of the City to operate a System for delivery of Services or any other purposes.
   (c)   Rights Permitted. Registration of a Service Provider under Sections 510.02 and 510.03 shall not convey any right, title or interest in the Public Right-of- Way.
   (d)   Maintenance of Facilities. Each Service Provider shall maintain its System and Facilities in good and safe condition and in a manner that complies with all applicable federal, State and local requirements.
   (e)   Safety Procedures. A Service Provider or other Person acting on its behalf shall use suitable barricades, flags, flaggers, lights, flares and other measures as necessary and under applicable State and local requirements for the safety of all members of the general public and to prevent injury or damage to any Person, vehicle or property by reason of the work in or affecting such Public Right-of-Way or property.
   (f)   Interference with the Public Rights-of-Way. No Service Provider may locate or maintain its Facilities so as to unreasonably interfere with the use of the Public Right-of-Way by the City, by the general public or by other Persons authorized to use or be present in or on the Public Right-of-Way. To the extent permitted by law, all Facilities shall be moved by the Service Provider, temporarily or permanently, as determined by the Director.
   (g)   Damage to Public and Private Property. No Service Provider nor any Person acting on the Service Provider’s behalf shall take any action or permit any action to be done which may impair or damage any City Property, including trees, Public Right-of-Way, Other Ways or other public or private property located in, on or adjacent thereto.
   (h)   Restoration of Public Right-of-Way, Other Ways and City Property.
      (1)   When a Service Provider, or any Person acting on its behalf, does any work in or affecting any Public Right-of-Way, Other Ways or City Property, it shall, after the work is completed and at its own expense, promptly remove any obstructions and restore such ways or property, within ten (10) to sixty (60) days, at the Director’s discretion, to as good a condition as existed before the work was undertaken, unless otherwise directed by the City.
      (2)   If weather or other conditions do not permit the complete restoration required by this section, the Service Provider shall temporarily restore the affected ways or property as directed by the Director, to the extent practical or feasible. Such temporary restoration shall be at the Service Provider’s sole expense and the Service Provider shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent permanent restoration.
   (i)   Duty to Provide Information.
      (1)   Within ten (10) days of a written request from the Director each Service Provider shall furnish the City with documentation sufficient to show that the Service Provider has complied with all requirements of this chapter.
      (2)   Within ten (10) days of a written request from the Director, each Service Provider shall make available for inspection by the City at reasonable times all books, records, maps and other documents, maintained by the Service Provider with respect to its Facilities in the Public Right-of-Way.
      (3)   A Service Provider operating under a tariff issued by the PUCO shall cooperate with the City upon request of the Director for assistance with the “design ticket” process of the Ohio Utility Protection Service.
   (j)   Assignments or Transfers. Registration to Occupy or Use the Public Right-of-Way may be, directly or indirectly, transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the Service Provider, by operation of law or otherwise, without consent of the City, so long as:
      (1)   The City is notified of the proposed transfer on or before the date of transfer or upon approval of any jurisdictional agency, including the PUCO; and
      (2)   The transferee shall fully comply with this chapter within sixty (60) days of the transfer, including, but not limited to, providing:
         A.   All information required by the Registration to Occupy or Use the Public Right-of-Way under Sections 510.02 and 510.03; and
         B.   Any other information reasonably required by the Director.
   (k)   Transactions Affecting Assignments or Transfers. Any transactions that singularly or collectively result in a change of twenty-five percent (25%) or more of the ownership or ultimate working control of a Service Provider, of the ownership or working control of the Service Provider’s Facility, or of control of the capacity or bandwidth of the Service Provider’s System, Facilities or substantial parts of the Facility shall be considered an assignment or transfer under division (j) of this section. Transactions between Affiliated entities are not exempt from division (j) of this section.
   (l)   Revocation of Registration. To the extent permitted by law, a Service Provider’s registration to Occupy or Use the Public Right-of-Way of the City may be revoked for any one (1) of the following reasons:
      (1)   Construction, Reconstruction, installation, location, operation or Excavation at an unauthorized location;
      (2)   Construction, Reconstruction, installation, location, operation or Excavation in violation of City safety and/or Construction requirements;
      (3)   Material misrepresentation or lack of candor by or on behalf of a Service Provider in any permit application or registration required by the City;
      (4)   Failure to relocate or remove Facilities, or failure to restore the Public Right-of-Way, as required by this chapter;
      (5)   Failure to pay fees, costs, taxes or compensation when and as due the City;
      (6)   Insolvency or bankruptcy of the Service Provider;
      (7)   Violation of material provisions of this chapter.
   (m)   Notice and Duty to Cure. In the event that the Director believes that grounds exist for revocation of a Service Provider’s registration to Occupy or Use the Public Right-of-Way, the Director shall give the Service Provider written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the Service Provider a reasonable period of time not exceeding thirty (30) days to furnish evidence:
      (1)   That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance;
      (2)   That rebuts the alleged violation or noncompliance; and/or
      (3)   That it would be in the public interest to impose some penalty or sanction less than revocation.
   (n)   It is within the Director’s reasonable discretion to waive a portion or portions of this chapter where the requirements, in the Director’s judgment, are not necessary or appropriate to protect the City’s interests and the purposes and intent of this chapter.
   (o)   Record Drawings. Within sixty (60) days after completion of Construction, registered Service Providers shall furnish the City with the following information for Facilities Constructed for the Service Provider in detail acceptable to the Director based on consultation with the Service Provider:
      (1)   The location, size, depth, grade, and route of any Underground Facilities, including proximity to other existing Facilities within the area excavated for the Construction;
      (2)   The location, height and route of any Overhead Facilities, including pole attachments;
      (3)   The location and position of any Above Ground Facilities and evidence of an AGF Installation Permit issued under Section 510.06 for the Facilities.
   Information supplied under division (o) of this section shall be submitted in an electronic format which is available to the Service Provider and acceptable to the Director, or, if an acceptable electronic format is not available, on paper.
   (p)   Field Identification. Commencing on January 1, 2008, Service Providers shall field identify in a readily available location by means of a mark or tag in a manner, form and at such time as is acceptable to the Director in accordance with national and state standards and regulations, all new or replacement Facilities constructed or installed at the surface of the Public Right-of-Way and, in conjunction with Public Right-of-Way improvements constructed by the City, all existing Facilities owned by a Service Provider and located on the surface of the portion of the Public Right-of-Way to be improved by the City.
   (q)   Restoration of Improvements. On completion of any Construction work, registered Service Providers shall promptly repair any and all Public Rights-of-Way and provide property improvements, fixtures, structures and Facilities which were damaged during the course of Construction, restoring the same as nearly as practicable to its condition before the start of Construction.
   (r)   Trees in Public Right-of-Way; Cost of Replacement.
      (1)   In performing any Construction work that may impact trees with roots, trunk or branches within the Public Right-of-Way, the Service Provider shall follow Best Management Standards and ANSI Standards for Arboriculture as may be amended from time to time.
      (2)   When tree roots must be affected by any Construction work within the Public Right-of-Way, the Service Provider shall submit specifications with the permit or construction plans and shall follow guidelines in Best Management Standards and ANSI Standards for Arboriculture as may be amended from time to time. The Commissioner of Park Maintenance and Properties ("Commissioner") or a designee shall review and approve the specifications prior to commencement of Construction work.
      (3)   A Service Provider that damages a tree located in Public Right-of-Way, due to the failure to properly protect or maintain the tree during Construction as required under division (r)(1), whether by negligence or otherwise, shall be charged one thousand dollars ($1,000.00) per area of damage to the roots or the above ground portion of the tree. If the damage can be repaired or reduced following Best Management Standards and ANSI Standards for Arboriculture, as may be amended from time to time, the Service Provider shall hire an ISA-Certified Arborist to repair or reduce the damage at the Service Provider's cost. If the damage to the tree is adequately repaired by the ISA-Certified Arborist, in the discretion of the Commissioner or designee, the Commissioner may waive the civil fine. The civil fines shall be deposited into the City's Tree Preservation Fund.
      (4)   Trees within the Public Right-of-Way may not be removed without prior consultation with the Commissioner or a designee. Best Management Standards and ANSI Standards for Arboriculture, as may be amended from time to time, shall be utilized when removing trees from the Public Right-of-Way. Compensation for trees removed in connection with Construction work performed by a Service Provider, based upon the replacement cost of the tree as established using the Trunk Formula Method outlined in The Guide for Plant Appraisal by the Council of Tree and Landscape Appraisers, as may be amended from time to time, or other tree replacement analysis provided by similar publication, shall be paid to the City's Tree Preservation Fund prior to completion of Construction work. A Service Provider shall not be required to compensate the City for trees removed at the City's request.
      (5)   The Commissioner or designee shall have the authority to charge the civil fines and replacement costs as set forth in this division. Civil fines under this section may be appealed to the Commissioner within ten (10) business days of the date of the notice of the civil fine. The Commissioner shall have jurisdiction to affirm, reverse or modify the decision and shall do so within ten (10) days of the date of the appeal. A Service Provider aggrieved by a final decision of the Commissioner may further appeal to the Board of Zoning Appeals within thirty (30) days after the Commissioner's decision.
   (s)   Landscape Restoration.
      (1)   All trees, landscaping and grounds removed, damaged or disturbed as a result of the Construction, Reconstruction, installation, maintenance, repair, replacement, or removal of Facilities must be replaced or restored as nearly as may be practicable, to the condition existing prior to performance of work as determined by the Commissioner or a designee, except to the extent that tree trimming is necessary to prevent the interference of tree branches with Overhead Facilities. Except in the case of emergency, trees within the Public Right-of-Way shall not be pruned without prior notice to the Commissioner or a designee. Best Management Standards and ANSI Standards for Arboriculture, as may be amended from time to time, shall be utilized when pruning trees in the Public Right-of-Way. Any Service Provider that fails to prune a tree using Best Management Standards and ANSI Standards for Arboriculture, as may be amended from time to time, such that the tree is damaged, as determined by the Commissioner or designee, shall be fined the full replacement cost of the tree as established using the Trunk Formula Method outlined in The Guide for Plant Appraisal by the Council of Tree and Landscape Appraisers, as may be amended from time to time, or other tree replacement analysis provided by similar publication, which shall be paid to the City's Tree Preservation Fund. If trees are damaged during Construction, Reconstruction, installation, maintenance, repair, replacement, or removal of Facilities, such that an ISA-Certified Arborist determines that the tree will fall or decline and die as a result of the damage, the Service Provider shall pay compensation to the City's Tree Preservation Fund based upon the replacement cost of the tree as established using the Trunk Formula Method outlined in The Guide for Plant Appraisal by the Council of Tree and Landscape Appraisers, as may be amended from time to time, or other tree replacement analysis provided by similar publication. If, in the opinion of the Commissioner or a designee, any trees cannot be replaced or restored in the same location, then either: (A) an equal number of trees, the type(s) of which shall be approved by the Commissioner or a designee, shall be planted in the Public Right-of-Way at a location or locations determined by the Commissioner or a designee; or (B) the Service Provider shall pay to the City's Tree Preservation Fund the replacement cost based on the Trunk Formula Method outlined in The Guide for Plant Appraisal by the Council of Tree and Landscape Appraisers, as may be amended from time to time, or other tree replacement analysis provided by similar publication, for an equal number of trees. The Commissioner or designee shall have the authority to charge the replacement cost as set forth in this division.
      (2)   All restoration work within the Public Right-of-Way shall be done under landscape plans approved by the Director.
   (t)   Responsibility of Owner. The owner of the Facilities to be Constructed, Reconstructed, installed, located, operated, maintained or repaired and, if different, the Service Provider, are responsible for performance of and compliance with all provisions of this section.
(Ord. No. 1121-18. Passed 12-3-18, eff. 12-5-18)