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(a) Notice of work required. A service provider shall provide the city with notice of work in the public right-of-way, including routine maintenance, new service orders and emergency work, under the following circumstances. Notice shall be given in the manner determined by the City Manager.
(1) Notice of excavation in the public right-of-way.
A. A service provider shall provide the City Manager with notice no later than 48 hours after commencing any excavation (including installation of a pole) in the public right-of-way.
B. A service provider shall notify the Ohio utility protection service ("OUPS") in advance of any excavation of the public right-of-way in accordance with Ohio law and OUPS regulations.
(2) Notice of lane obstruction or closing of a public street.
A. Lane obstruction. For routine maintenance and new service orders that require the service provider to cause a lane obstruction such that two vehicles may not pass in opposite directions at the site of the lane obstruction the service provider shall provide the Police Department with three hours advance notice prior to commencing such work, to the extent reasonably practicable, and shall maintain traffic in compliance with the ODOT Manual of Uniform Traffic Control Devices or other applicable ODOT regulations.
B. Closing of a public street. For routine maintenance and new service orders that require the service provider to close any public street, the service provider shall provide the City Manager and the Police Department with 48 hours advance notice prior to commencing such work, and shall maintain traffic in compliance with the ODOT Manual of Uniform Traffic Control Devices or other applicable ODOT regulations.
(3) Notice of extension of overhead facilities. For the relocation or replacement of more than 1000 lineal feet of a service provider's existing overhead facilities in the public right-of-way, the service provider shall provide the City Manager with twenty-four (24) hours advance notice.
(4) Emergency work. In the event of the need for any unexpected repair or emergency work, a service provider may commence such emergency response work as required under the circumstances, provided that for emergency work that requires excavation of a public right-of-way or lane obstruction or closing of a public street, the service provider shall notify the City Manager as promptly as possible before commencing such emergency work, or as soon as possible thereafter if advance notice is not practicable.
(b) No notice of work required: routine maintenance and new service orders.
(1) A service provider need not provide the city with notice, or obtain a construction permit, prior to or after commencing routine maintenance or new service orders that do not include excavation of a public right-of-way, a lane obstruction described in § 1050.07(a)(2)(a) above, the closing of a public street, or extension of overhead facilities described in § 1050.07(a)(3).
(2) A service provider performing routine maintenance, new service orders or emergency work shall otherwise comply with the requirements of this chapter.
(Ord. 08-O-2455, passed 3-18-2008)
(a) Construction permit.
(1) A service provider shall obtain a construction permit from the City Manager as provided in this section, prior to commencing or continuing any construction or reconstruction of facilities in the right-of-way under the following circumstances:
A. The construction of a new system or reconstruction of facilities to provide a new service;
B. The extension of a service provider's system in the public right-of-way in an area of the city not currently serviced by that service provider; not including new service orders;
C. Any construction or reconstruction of above-ground facilities in the right-of-way; or
D. Any capital improvement, construction, reconstruction or replacement of facilities, routine maintenance or new service orders in the public right-of-way requiring more than three working days to complete.
(2) No construction permit shall be issued for the construction or reconstruction of facilities, or excavation, in the public right-of-way unless the service provider has obtained consent from the city to use or occupy the public right-of-way and whose registration is in good standing pursuant to §§ 1050.02 and 1050.03 of this chapter.
(3) No construction permit required. Except as provided in divisions C. and D. above, no construction permit is required for routine maintenance and new service orders.
(b) Construction permit applications. Applications for construction permits shall be submitted upon forms provided by the city and be accompanied by relevant drawings, plans and specifications in sufficient detail and include the following information:
(1) A preliminary construction schedule.
(2) Overhead facilities. If the applicant is proposing to construct or reconstruct overhead facilities:
A. Evidence that surplus space is available for locating its facilities on existing utility poles along the proposed route;
B. The location and route of all facilities to be located or installed on existing utility poles.
(3) Above-ground facilities. If the applicant is proposing to install above-ground facilities, the location of all known existing underground utilities, conduits ducts, pipes, mains and installations that are in the public right-of-way in the proposed location of and/or along the route of the proposed above-ground facilities.
(4) Underground facilities.
A. If the applicant is proposing new underground facilities in existing ducts, pipes or conduits in the public right-of-way, information in sufficient detail to identify:
1. The excess capacity currently available in such ducts or conduits before the installation of the applicant's facilities.
2. The excess capacity, if any that will exist in such ducts or conduits after installation of the applicant's facilities.
B. If the applicant is proposing new underground facilities in new ducts or conduits to be constructed in the public right-of-way:
1. The location and depth proposed for the new ducts or conduits; and
2. The excess capacity that will exist in such ducts or conduits after installation of the applicant's facilities.
C. The location and route of all facilities to be located under the surface of the ground, including the line and grade proposed for the burial at all points along the route which are in the public right-of-way. Included with the installation shall be magnetic and florescent tape placed at a minimum of one foot to a maximum of two feet above the entire facility as installed for the purpose of locating the facility during future construction activities, or other such location device as approved by the City Manager. The tape shall be marked with the type of facility installed.
D. The location of all known existing underground utilities, conduits, ducts, pipes, mains and installations that are in the public right-of-way along the underground route proposed by the applicant.
(5) The location(s), if any, for interconnection with the facilities of other service providers.
(6) The construction methods to be employed to protect existing structures, fixtures and facilities in or adjacent to the public right-of-way.
(7) The structures, improvements, facilities and obstructions, if any, that the applicant proposes to temporarily or permanently remove or relocate, and any necessary plans for their restoration.
(8) The impact of construction or reconstruction of facilities on trees and landscaping in or adjacent to the public right-of-way along the route proposed by the applicant, together with a landscape plan for protecting, trimming, removing, replacing and restoring any trees, landscaping or areas disturbed during construction.
(9) Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities and to offer or provide the services.
(10) An attestation that the facilities will be constructed or reconstructed, or the public right-of-way excavated, in accordance with all applicable codes, rules and regulations.
(11) Any other information the City Manager may reasonably request related to the service provider's application for a construction permit.
(c) Issuance of permit. Within ten business days after submission of all plans and documents required of the applicant, the City Manager, if satisfied that the applications, plans and documents comply with all requirements of this chapter, shall issue a construction permit authorizing the construction or reconstruction of the facilities, or excavation in the public right-of-way, subject to such further conditions, restrictions or regulations affecting the time, place and manner of performing the work as the City Manager may deem necessary or appropriate. The ten business day period shall begin after the City Manager deems all submissions to be complete and in accordance with the requirements of this chapter.
(d) Modification of construction schedule. The service provider may modify the construction schedule at any time provided that 48 hours advance notice is given to the City Manager. The service provider shall further notify the City Manager and the Ohio Utility Protection Service (OUPS) not less than 48 hours in advance of any excavation or work in the public right-of-way.
(e) Construction codes. Facilities shall be constructed, reconstructed, operated, excavated and maintained in accordance with all applicable federal, state and local codes, rules, regulations and technical codes including, but not limited to, the National Electrical Safety Code.
(f) Maintenance of landscaping or other aesthetic requirements. A service provider with a construction permit that includes a landscaping, screening and/or other aesthetic requirement in connection with the placement of any structure or item above the ground in the public right-of-way, shall maintain the landscaping, screening and/or other aesthetic requirement, on a continuing basis, in the manner specified in the construction permit or other manner as approved by the City Manager.
(g) Least disruptive technology. To the extent reasonably possible, all facilities shall be constructed or reconstructed in the manner resulting in the least amount of damage and disruption of the public right-of-way. Unless otherwise authorized by the City Manager for good cause, service providers constructing or reconstructing underground facilities shall utilize trenchless technology, including, but not limited to, horizontal drilling, directional boring, and microtunneling, if technically and/or technologically feasible.
(h) Compliance with permit. All construction practices and activities shall be in accordance with the construction permit and approved final plans and specifications for the facilities. The City Manager shall have access to the work and such further information as he or she may require to ensure compliance with such requirements. Field changes may be approved by the City Manager if such changes are determined to be necessary due to site conditions or other changed circumstances.
(i) Display of permit. The service provider shall maintain a copy of the construction permit and approved plans at the construction site, which shall be displayed and made available for inspection by the City Manager whenever construction work is occurring.
(j) Noncomplying work. Upon order of the City Manager, all work that does not comply with the permit, the approved plans and specifications for the work, or the requirements of this chapter, shall immediately cease and be immediately removed and/or corrected by the service provider.
(k) Record drawings. Within 60 days after completion of construction, the service provider shall provide the city with two complete sets of plans, drawn to scale and certified to the city as accurately depicting the location of all facilities constructed pursuant to the permit. If required by the city, the service provider shall submit the record drawings in a digital format compatible with the city's computer software.
(l) Restoration of improvements. Upon completion of any construction work, the service provider shall promptly repair any and all public rights-of-way, property improvements, fixtures, structures and facilities which were damaged during the course of construction, and restore them as nearly as practicable to their prior condition, in accordance with § 1050.05(f).
(m) Landscape restoration.
(1) All trees, landscaping and grounds removed, damaged or disturbed as a result of the construction, reconstruction, installation, maintenance, repair or replacement of facilities must be replaced or restored as nearly as may be practicable, to the condition existing prior to performance of work, except to the extent that tree trimming is necessary to prevent the interference of tree branches with overhead facilities.
(2) All restoration work within the public right-of-way shall be done in accordance with landscape plans approved by the City Manager.
(n) Construction and completion bond. If the City Manager reasonably determines that extraordinary circumstances related to an application for a construction permit or series of construction permits requires a bond, in addition to the performance bond deposited with the city pursuant to § 1050.04(c) of this chapter, to adequately ensure the city's ability to manage its public rights-of-way related to the service provider construction permit or permits, the city may require the service provider to obtain and file a construction bond with the city that ensures the service provider's full and complete compliance with, and performance under the construction permit or permits, this chapter and the city's codified ordinances, including any costs, expenses, damages or loss the city pays or incurs due to any failure attributable to the service provider to comply with the construction permit, this chapter or the city's codified ordinances.
(1) The construction bond shall be written by a corporate surety acceptable to the city and equal to at least 100% of the estimated cost of the construction that is the subject of the construction permit or permits, or such lesser amount as the City Manager may determine to adequately protect the city's interest.
(2) The form of the construction bond shall be subject to the reasonable approval of the Director of Law. A service provider required to obtain a construction bond under this section may file an appeal pursuant to § 1050.09(b) of this chapter.
(o) Responsibility of owner. The owner of the facilities to be constructed or reconstructed and, if different, the service provider, are responsible for performance of and compliance with all provisions of this section.
(Ord. 08-O-2455, passed 3-18-2008)
(a) Modification or waiver of requirements. It is within the City Manager's reasonable discretion to modify or waive any portion of this chapter, if in his or her judgment, such requirements are not necessary or appropriate to protect the city's interests and the purposes and intent of this chapter.
(b) Appeal and variance process. Within 14 calendar days of a written decision of the City Manager regarding any requirements of this chapter, a service provider may appeal the decision to, or apply for a variance from, the Planning Commission. The Planning Commission shall hold a hearing on the appeal or requested variance no later than 30 days from receiving the service provider's written appeal or request for the variance pursuant to the procedures established by the Planning Commission. In determining the merits of the appeal or variance application, the Planning Commission shall consider all relevant factors including, but not limited to: the purpose of the City Manager's decision or requirement from which a variance is requested; whether the decision or requirement is necessary or appropriate to protect the interests of the city; the health, safety and general welfare of the city's residents, the general public, and properties in the city; the purposes and intent of this chapter; and the extent of the hardship, economic or otherwise, the service provider will bear if the appeal or variance is not granted. The Planning Commission shall make findings of fact and issue a written decision setting forth the reasons for granting or denying the appeal or variance. The decision of the Planning Commission is the final decision of the city on the appeal or variance request.
(c) Preemption by state and federal law. Except as may be preempted by applicable state or federal laws, rates, regulations, and orders, this chapter shall apply and be controlling over each service provider with facilities in the public rights-of-way.
(d) Exemption for city-owned or operated facilities. Except as otherwise required by law, nothing in this chapter shall be construed to apply the provisions of this chapter to facilities owned or operated by the city or any of its operations.
(e) Recovery of city costs. Any city costs related to a service provider's use of the public right-of-way and recovered pursuant to this chapter from the performance bond, letter of credit and/or construction bond, or in any other manner, shall be considered public way fees as that term is defined in Ohio R.C. Chapter 4939 and shall be assessed by the City Manager in accordance with Chapter 4939 and any other applicable law.
(f) Private facilities. Persons using the city's public right-of-way for facilities that provide service not available to the general public shall obtain consent from the city pursuant to § 1050.02, register pursuant to § 1050.03, obtain a construction permit (if applicable) pursuant to § 1050.08 and comply with all provisions of this chapter.
(g) Application to existing code provisions. In the event of a direct conflict between any provision of this chapter and any other section of the city's codified ordinances, the provisions of this chapter shall apply.
(h) Severability. If any section, subsection, sentence, clause, phrase, or other portion of this chapter, or its application to any person, is, for any reason, declared invalid, in whole or in part by any court or agency of competent jurisdiction, that decision shall not affect the validity of the remaining portions hereof.
(Ord. 08-O-2455, passed 3-18-2008)
(a) Criminal penalties. Any person found guilty of violating, disobeying, omitting, neglecting or refusing to comply with any of the provisions of this chapter shall be guilty of a misdemeanor of the fourth degree. A separate and distinct offense shall be deemed committed each day on which a violation occurs or continues.
(b) Civil violations and forfeiture.
(1) In lieu of the criminal penalties set forth above, the City Manager may make an initial finding of a civil violation by the service provider for violating, disobeying, omitting, neglecting or refusing to comply with any of the provisions of this chapter.
(2) The civil forfeiture shall be in an amount payable to the city of not less than one hundred dollars ($100.00) nor more than five hundred dollars ($500.00) for each offense. A separate and distinct offense shall be deemed committed each day on which a violation occurs or continues.
(3) An action for civil forfeiture shall be commenced by providing the service provider with written notice describing in reasonable detail the service provider's alleged violation of one or more provisions of this chapter and the amount of the penalty that will be assessed against it.
(4) The service provider shall have 15 days subsequent to receipt of the notice of violation in which to correct the violation before the city may assess penalties against the service provider. The time in which to cure the violation may be extended by the city if additional time is required to correct the violation; provided that the service provider commences corrective action within seven days of the notice of violation and proceeds with reasonable diligence.
(5) The service provider may dispute the alleged violation by providing the city with written notice within five days of receipt of the notice of violation, setting forth in reasonable detail the reasons for its dispute. The city shall set a date for hearing of the alleged violation no sooner than 30 days and no later than 60 days from receipt of the notice of dispute.
(6) The city shall issue a written decision on the service provider's alleged violation within 30 days of the hearing, which decision shall be final and subject to the administrative appeal procedures under Ohio law. If the city finds after hearing that the alleged violation(s) did occur, the penalty shall be assessed starting 15 days from the notice of violation and shall continue until the violation has been corrected.
(c) Other remedies. Nothing in this chapter shall be construed as limiting any judicial remedies that the city may have, at law or in equity, for enforcement of this chapter.
(Ord. 08-O-2455, passed 3-18-2008)