951.18  CONSTRUCTION, RELOCATION AND RESTORATION.
   (a)   Utility Engineering Study Required.
      (1)   Prior to commencement of any initial Construction, extension, or relocation of Facilities in the Rights-of-Way, except for repair, maintenance or replacement with like Facilities or relocations requested or caused by a third party (excluding the City) or another Permittee, a Permittee shall conduct a utility engineering study on the proposed route of Construction expansion or relocation if requested by the Director of Public Service. Where such Construction and/or relocation is requested or caused by a third party, every Permittee located within the Rights-of-Way at issue or involved with the work shall use all Best Efforts to cooperate and assist any other Permittee or person who is directed by the City to perform the required utility engineering study. A utility engineering study consists of, but is not limited to, completion of the following tasks:
         A.   Secure all available "as-built" plans, plats and other location data indicating the existence and approximate location of all Facilities along the proposed Construction route.
         B.   Visibly survey and record the location and dimensions of any Facilities along the proposed Construction route, including, but not limited to, manholes, valve boxes, utility boxes, posts and visible street cut repairs.
         C.   Determine and record the presence and precise location of all underground facilities the Applicant or Person on whose behalf the Permit was applied for owns or controls in the Rights-of-Way along the proposed System route.  Upon request of the Director of Public Service, a Permittee shall also record and identify the general location of all other Facilities in the Rights-of-Way along the proposed System route.  For the purposes of this Section, general location shall mean the alignment of other Facilities in the Rights-of-Way, but shall not necessarily mean the depth of other Facilities in the Rights-of-Way.
         D.   Plot and incorporate the data obtained from completion of the tasks described in Section 951.18 (a)(1)(i)-(iii) on the Construction Permittee's proposed System route maps, Construction plans, plan sheets or computer aided drafting and design (CADD) files, or other data files in a format compatible with that used by the City.
         E.   Where the proposed location of Facilities and the location of existing underground facilities appear to conflict on the plans drafted in accordance with Section 951.18 (a)(1)(iv), Permittee has the option of either utilizing non-destructive digging methods, such as vacuum excavation, at the critical points identified to determine as precisely as possible, the horizontal, vertical and spatial position, composition, size and other specifications of the conflicting underground facilities, or re-designing the Construction plans to eliminate the apparent conflict.  A Permittee shall not excavate more than a three (3) feet by three (3) feet square hole in the Rights-of-Way to complete this task.
         F.   Based on all of the data collected upon completion of the tasks described in this section, adjust the proposed System design to avoid the need to relocate other Underground Facilities.
      (2)   The Director of Public Service may modify the scope of the utility engineering study as necessary depending on the proposed Construction plans.
   (b)   Copy to City.  Upon completion of the tasks described in Section 951.18 (a), the Construction Permittee shall submit the proposed System route maps and Construction Plans, with the results of the utility engineering study, in the most advanced format (including, but not be limited to electronic and/or digital format) then currently being used by the Provider that is then currently capable of technologically being read (or readily converted to a readable form) by the City. The mapping data is required to be at the "Atlas" level of detail necessary for the City to reasonably determine the location of the Provider's facilities in the Rights-of-Way. The Provider shall supply the mapping data on paper if the Director of Public Service determines that the format currently being used by the Provider is not capable of being read by the City.
          (c)   Qualified Firm. All utility engineering studies conducted pursuant to this section shall be performed by the Permittee if in the discretion of the Director of Public Service the Construction Permittee is qualified to complete the project itself; alternatively, utility engineering studies shall be performed by a firm specializing in utility engineering that is approved by the City.
   (d)   Cost of Study. The Permittee shall bear the cost of compliance with Section 951.18 (a)-(c).
   (e)   Construction Schedule. Unless otherwise provided for in this chapter or in the Rules and Regulations, or unless the Director of Public Service waives any of the requirements of this Section due to unique or unusual circumstances, a Permittee shall be required to submit a written Construction schedule to the City fourteen (14) business days before commencing any work in or about the Rights-of-Way, and shall further notify the City not less than two (2) business days in advance of any excavation in the Rights-of-Way.  This Section shall apply to all situations with the exception of circumstances under Section 951.20 (d) (Emergency Situations) and Section 951.19 (Minor Maintenance).
   (f)   Location of Facilities.
      (1)   The placement of new Facilities and replacement of old Facilities, either above ground or underground, shall be completed in conformity with applicable laws and the City's Rules and Regulations.
      (2)   The City shall have the power to prohibit or limit the placement of new or additional Facilities within the Rights-of-Way if the Right-of-Way is Full, as determined in the sole discretion of the City.  In making such decisions, the City shall strive to the extent possible to accommodate all existing and potential users of the Rights-of-Way, but shall be guided primarily by considerations of the public health, safety and welfare, the condition of the Rights-of-Way, the time of year with respect to essential Utilities, the protection of existing Facilities in the Rights-of-Way, future City and County plans for public improvements, development projects which have been determined to be in the public interest and nondiscriminatory and competitively neutral treatment among Providers.
   (g)   Least Disruptive Technology.  All Construction or maintenance of Facilities shall be accomplished in the manner resulting in the least amount of damage and disruption of the Rights-of-Way.  Specifically, every Permittee when performing underground Construction, if technically and/or technologically feasible and not economically unreasonable, shall utilize Trenchless Technology, including, but not limited to, horizontal drilling, directional boring, and microtunneling.  In addition, all cable, wire or fiber optic cable installed in the subsurface Rights-of-Way pursuant to this chapter may be required to be installed in conduit, and if so required, no cable, wire or fiber optic cable may be installed pursuant to this chapter using "direct bury" techniques.
   (h)   Special Exceptions.
      (1)     The City may grant a special exception to the requirements of Section  951.18 (f) and Section 951.18 (g) if a Permittee, upon application, demonstrates with written evidence that:
         A.   The exception will not create any threat to the City's investment or in the Rights-of-Way, the public health, safety or welfare.
           B.   Permittee demonstrates that the increased economic burden and the potential adverse impact on the Permittee's Construction schedule resulting from the strict enforcement of the requirement actually or effectively inhibits the ability of the Permittee to provide Services in the City.
         C.   The Permittee demonstrates that the requirement unreasonably discriminates against the Permittee in favor of another Person.
         D.   The requirements requested by the City create an unreasonable economic burden for the Permittee that outweighs any potential benefit to the City.
   (i)   Relocation of Facilities.
      (1)   A Provider shall as promptly as reasonably possible and at its own expense, permanently remove and relocate its Facilities in the Rights-of-Way when necessary for a governmental or public improvement purpose. In instances where the City requests removal and/or relocation, the City shall waive all applicable Construction Permit Fees. Upon removal and/or relocation, the Provider shall restore the Rights-of-Way to the same or better condition it was in prior to said removal or relocation. If existing poles are required to be removed and/or relocated, then the existing poles will be replaced with poles of the same or substantially similar size, or smaller. In accordance with Law, the Director of Public Service may request relocation and/or removal in order to prevent unreasonable interference by the Provider's Facilities with:
         A.   A public improvement undertaken or approved by the City.
         B.   The City's investment in the Right-of-Way.
         C.   When the public health, safety, and welfare requires it, or when necessary to prevent interference with the safety and convenience of ordinary travel over the Rights-of-Way.
         D.   The sale, conveyance, vacation, or narrowing of all or any part of a Right-of-Way.
      (2)   Notwithstanding the foregoing, a Provider who has Facilities in the Rights-of-Way subject to a vacation or narrowing that is not required for the purposes of the City, shall have a permanent easement in such vacated portion or excess portion in conformity with Ohio R.C. Section 723.041.
      (3)   If, in the reasonable judgment of the City, a Provider fails to commence removal and/or relocation of its Facilities, as designated by the City, within thirty (30) days after the City's removal order, or if a Provider fails to substantially complete such removal, including all associated repair of the Rights-of-Way of the City, within twelve (12) months thereafter, then, to the extent consistent with applicable law, the City shall have the right to:
         A.   Declare that all rights, title and interest to the Facilities belong to the City with all rights of ownership, including, but not limited to, the right to connect and use the Facilities or to effect a transfer of all right, title and interest in the Facilities to another Person for operation; or
         B.   Authorize removal of the Facilities installed by the Provider in, on, over or under the Rights-of-Way of the City at Provider's cost and expense, by another Person; however, the City shall have no liability for any damage caused by such action and the Provider shall be liable to the City for all reasonable costs incurred by the City in such action; and
         C.   To the extent consistent with applicable Law, any portion of the Provider's Facilities in, on, over or under the Rights-of-Way of the City designated by the City for removal and not timely removed by the Provider shall belong to and become the property of the City without payment to the Provider, and the Provider shall execute and deliver such documents, as the City shall request, in form and substance acceptable to the City, to evidence such ownership by the City.
   (j)   Pre-Excavation Facilities Location.
      (1)   Before the start date of any Rights-of-Way excavation, each Provider who has Facilities located in the area to be excavated shall, to the best of its ability, be responsible to mark the horizontal and approximate vertical placement of all its Facilities.
      (2)   All Providers shall notify and work closely with the excavation contractor in an effort to establish the exact location of its Facilities and the best procedure for excavation.
   (k)   Rights-of-Way Restoration.
      (1)   The work to be done under the Permit, and the Restoration of the Rights-of-Way as required herein, weather permitting, must be completed within the dates specified in the Permit. In addition to its own work, the Permittee must restore the general area of the work, and the surrounding areas, including trench backfill, paving and its foundations in accordance with the Code and City Rules and Regulations. If a Permittee is unable to timely complete the Restoration of Rights-of-Way due to unreasonable inclement weather conditions, the Permittee shall complete the Restoration of the Rights-of-Way as soon as weather conditions make it possible to do so and upon said completion notify the City.
      (2)   In approving an Application for a Construction Permit, the City may have the Permittee restore the Rights-of-Way or the City may restore the Rights-of-Way itself at the Permittee's cost if the Permittee has in the past not abided by the requirements of this chapter.
      (3)   If the City chooses to allow Permittee to restore the Rights-of-Way, the Permittee shall, at the time of Application for a Construction Permit, post a Construction Bond in an amount determined by the City to be sufficient to cover the cost of restoring the Rights-of-Way to its approximate pre-excavation condition.  If, twelve (12) months after completion of the Restoration of the Rights-of-Way, the City determines that the Rights-of-Way have been properly restored, the surety on the Construction Bond shall be released. The City may, in its sole discretion, waive the requirements of posting a Construction Bond upon demonstration of good cause shown.
      (4)   The Permittee shall perform the Right-of-Way Restoration work according to the standards and with the materials specified by the City.  The City shall have the authority to prescribe the manner and extent of the Restoration, and may do so in written procedures of general application or on a case-by-case basis.  The City in exercising this authority shall be guided by the following standards and considerations: the number, size, depth and duration of the excavations, disruptions or damage to the Rights-of-Way; the traffic volume carried by the Rights-of-Way; the character of the neighborhood surrounding the Rights-of-Way; the pre-excavation condition of the Rights-of-Way; the remaining life-expectancy of the Rights-of-Way affected by the excavation; whether the relative cost of the method of Restoration to the Permittee is in reasonable balance with the prevention of an accelerated depreciation of the Rights-of-Way that would otherwise result from the excavation, disturbance or damage to the Rights-of-Way; and the likelihood that the particular method of Restoration would be effective in slowing the depreciation of the Rights-of-Way that would otherwise take place.  Methods of Restoration may include, but are not limited to, patching the affected area, replacement of the Rights-of-Way base at the affected area, and in the most severe cases, milling, overlay and/or street reconstruction of the entire area of the Rights-of-Way affected by the work.
      (5)   By restoring the Rights-of-Way itself, the Permittee guarantees its work and shall maintain it for twelve (12) months following its completion.  During this twelve (12) month period, it shall, upon notification from the Department of Public Service, correct all Restoration work to the extent necessary using the method required by the Department of Public Service.  Weather permitting, said work shall be completed within five (5) calendar days of the receipt of the notice from the Department of Public Service, unless otherwise extended by the Department of Public Service.
      (6)   If the Permittee fails to restore the Rights-of-Way in the manner and to the condition required by the City, or fails to satisfactorily and timely complete all repairs required by the City, the City, at its option, may do such work.  In that event, the Permittee shall pay to the City, within thirty (30) days of invoicing, the Restoration cost of restoring the Rights-of-Way and any other costs incurred by the City.  Upon failure to pay, the City may call upon any bond or letter of credit posted by Permittee and/or pursue any and all legal and equitable remedies.
      (7)   If the work to be done under the Permit is being done at the same location and the same period of time as work by the City and/or another Permitee(s), then the Director of Public Service may reasonably apportion the Restoration responsibility among the City, Providers and/or other Persons.
          (l)   Damage to Other Facilities.
      (1)   In the case of an Emergency, and if possible after reasonable efforts to contact the Provider seeking a timely response, when the City performs work in the Rights-of-Way and finds it necessary to maintain, support, or move a Provider's Facilities to protect those Facilities, the costs associated therewith will be billed to that Provider and shall be paid within thirty (30) days from the date of billing. Upon failure to pay, the City may pursue all legal and equitable remedies or the City may call upon any bond or letter of credit posted by the Permittee and pursue all legal or equitable remedies. Each Provider shall be responsible for the cost of repairing any damage caused by its Facilities to the Facilities of another Provider during the City's response to an Emergency.
      (2)   Each Provider shall be responsible for the cost of repairing any City-owned Facilities in the Rights-of-Way that the Provider or its Facilities damage.
   (m)   Rights-of-Way Vacation.
      (1)   If the City sells or otherwise transfers a Right-of-Way that contains the Facilities of a Provider, such sale or transfer shall be subject to any existing easements of record and any easements required pursuant to  Ohio R.C. Section 723.041.
   (n)   Installation Requirements.  The excavation, backfilling, Restoration, and all other work performed in the Rights-of-Way shall be performed in conformance with all applicable laws, City Rules and Regulations, other standards as may be promulgated by the Director of Public Service.
   (o)   Inspection. When the Construction under any Permit is completed, the Permittee shall notify the Department of Public Service.
      (1)   The Permittee shall make the Construction site available to the Inspector and to all others as authorized by law for inspection at all reasonable times during the execution and upon completion of the Construction.
      (2)   At the time of inspection, the Inspector may order the immediate cessation of any work that poses a serious threat to the life, health, safety or well-being of the public, violates any law or that violates the term and conditions of the Permit and/or this chapter. The City may inspect the work; however, the failure of the City to inspect the work does not alleviate the responsibility of the Permittee to complete the work in accordance with the approved Permit and the requirements of this chapter.
      (3)     The Inspector may issue an order to the Permittee for any work that does not conform to the Permit and/or applicable standards or codes.  The order shall state that failure to correct the violation will be cause for revocation of the Permit.  The order may be served on the Permittee as provided in Section 951.23 (e).  An order may be appealed to the Director of Public Service.  The decision of the Director of Public Service may be appealed to the Mayor whose decision shall be final.  If not appealed, within ten (10) days after issuance of the order, the Provider shall present proof to the Director of Public Service that the violation has been corrected.  If such proof has not been presented within the required time, the Director of Public Service may revoke the Permit.
   (p)   Other Obligations.
      (1)   Obtaining a Construction Permit does not relieve Permittee of its duty to obtain all other necessary Permits, licenses, and authority and to pay all fees required by any other local, state or federal laws.
      (2)   Permittee shall comply with all laws, including the Ohio Utility Protection Service.
      (3)   Permittee shall perform all work in conformance with all applicable laws and standards, and is responsible for all work done in the Rights-of-Way pursuant to its Permit, regardless of who performs the work.
      (4)   No Rights-of-Way obstruction or excavation may be performed when seasonally prohibited or when conditions are unreasonable for such work, except in the case of an Emergency as outlined in Section 951.20 (d).
      (5)   Permittee shall not obstruct a Right-of-Way so as to interfere with the natural free and clear passage of water through the gutters or other waterways. The Director of Public Service may waive this requirement if it is technically or economically unreasonable in the circumstances.
      (6)   Private vehicles, other than necessary Construction vehicles, may not be parked within or adjacent to a Permit area.  The loading or unloading of trucks adjacent to a Permit area is prohibited unless specifically authorized by the Permit.
   (q)   Undergrounding Required.   Any owner of property abutting a street or alley where Service Facilities are now located underground and where the Service connection is at the property line, shall install or cause others to install underground any Service delivery infrastructure from the property line to the buildings or other structures on such property to which such Service is supplied. Where not otherwise required to be placed underground by this chapter, a Provider shall locate Facilities underground at the request of an adjacent property owner, provided that such placement of Facilities underground is consistent with the Provider's normal construction and operating standards and that the additional costs of such undergrounding over the normal aerial or above ground placement costs of identical Facilities are borne directly by the property owner making the request. A Provider, under any circumstance shall, upon the reasonable request of the City, always use Best Efforts to place Facilities underground. Where technically possible and not economically unreasonable or unsafe (based upon the technology employed and Facilities installed), all Facilities to be installed by a Provider under the Right-of-Way shall be installed in conduit.
(Ord.  30-2019.  Passed 4-22-19.)