1149.11 CONSTRUCTION, RELOCATION AND RESTORATION.
(a) Utility Engineering Study Required.
(1) Prior to commencement of any initial Construction, extension, or relocation of Facilities in the Right-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 unless the Service Director issues a written exception. Where such Construction and/or relocation is requested or caused by a third party, every Permittee located within the Right-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, at minimum, 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 Right-Of-Way along the proposed route. Upon request of the Service Director, a Permittee shall also record and identify the general location of all other Facilities in the Right-Of-Way along the proposed route. For the purposes of this Section, general location shall mean the alignment of other Facilities in the Right-Of-Way but shall not necessarily mean the depth of other Facilities in the Right-Of-Way.
D. Plot and incorporate the data obtained from completion of the tasks described in Section 1149.11(a)(1)A. - C. herein, on the Construction Permittee's proposed route maps and Construction plans.
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 1149.11(a)(1)D., 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. Unless waived by the Director of Public Works, a Permittee shall not excavate more than a three (3) feet by three (3) feet square hole in the Right-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 design to avoid the need to relocate other Underground Facilities.
(2) The Service Director 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 1149.11(a) above, the Construction Permittee shall submit, if necessary labeled in accordance with the requirements of Ohio R.C. 1020.06(B), the proposed route maps and Construction Plans, with the results of the utility engineering study, in the most advanced format (including, but not limited to electronic and/or digital format) then currently being used by the Permittee that the City is capable of reading (or readily converting to a readable form). The mapping data is only required to be at the "Atlas" level of detail necessary for the City to reasonably determine the location of the Permittee's Facilities in the Right-Of-Way. The Permittee shall supply the mapping data on paper if the Service Director determines that the format currently being used by the Permittee 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 Service Director 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.
(e) Construction Schedule. Unless otherwise provided for in Chapter 1149 or in the Rules and Regulations, or unless the Service Director 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 five (5) Working Days before commencing any work in or about the Right-Of-Way, and shall further notify the City not less than one (1) Working Day in advance of any excavation in the Right-Of-Way. This Section shall apply to all situations with the exception of circumstances under Section 1149.13(d)(l) (Emergency Situations) and Section 1149.12 (Minor Maintenance) herein.
(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 Right-Of-Way if the Right-Of-Way is full, or if the area is designated solely for undergrounding in accordance with Section 4939.0314 of the Ohio Revised Code. In making such decisions, the City shall strive to the extent possible to accommodate all existing and potential users of the Right-Of-Way, but shall be guided primarily by considerations of the public health, safety and welfare, the condition of the Right-Of-Way, the time of year with respect to essential Utilities, the protection of existing Facilities in the Right-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 Permittees.
(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 Right-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 Right-Of-Way pursuant to Chapter 1149 may be required to be installed in conduit, and if so required, no cable, wire or fiber optic cable may be installed pursuant to Chapter 1149 using "direct bury" techniques.
(1) The exception will not create any threat to the public health, safety or welfare;
(2) 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.
(3) The Permittee demonstrates that the requirement unreasonably discriminates against the Permittee in favor of another Person.
(4) The requirements requested by the City herein create an unreasonable economic burden for the Permittee that outweighs any potential benefit to the City.
(i) Relocation of Facilities.
(1) A Permittee shall as promptly as reasonably possible and at its own expense, permanently remove and relocate its Facilities in the Right-Of-Way whenever the City finds it necessary to request such removal and relocation. 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 Permittee shall restore the Right-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 similar size. In accordance with Law, the Service Director may request relocation and/or removal in order to prevent unreasonable interference by the Permittee's Facilities with:
A. A public improvement undertaken or approved by the City;
B. The public health, safety, and welfare, or when necessary to prevent interference with the safety and convenience of ordinary travel over the Right-Of-Way; or
C. The sale, conveyance, vacation, or narrowing of all or any part of a Right-Of-Way.
(2) Notwithstanding the foregoing, a Permittee who has Facilities in the Right-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. 723.041.
(3) If, in the reasonable judgment of the City, a Permittee 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 Permittee fails to substantially complete such removal, including all associated repair of the Right-Of-Way of the City, within twelve (12) months thereafter, then, to the extent not inconsistent 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 Permittee in, on, over or under the Right-Of-Way of the City at Permittee's cost and expense, by another Person; however, the City shall have no liability for any damage caused by such action and the Permittee 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 Permittee's Facilities in, on, over or under the Right-Of-Way of the City designated by the City for removal and not timely removed by the Permittee shall belong to and become the property of the City without payment to the Permittee, and the Permittee 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. Before the start date of any Right-Of-Way excavation, each Permittee who has Facilities located in the area to be excavated shall, to the best of its ability, mark the horizontal and approximate vertical placement of all its Facilities. All Permittees shall also 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) Right-Of-Way Restoration.
(1) The work to be done under the Permit, and the Restoration of the Right-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 Rules and Regulations. If a Permittee is unable to timely complete the restoration of Right-Of-Way due to unreasonable inclement weather conditions, the Permittee shall complete the restoration of the Right-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 choose either to have the Permittee restore the Right-Of-Way or alternatively to restore the Right-Of-Way itself if the Permittee has in the past not abided by requirements of Chapter 1149.
(3) If the City allows a Permittee to restore the Right-Of-Way, the Permittee may at the time of Application for a Construction Permit be required to post a Construction Bond in an amount determined by the City to be sufficient to cover the cost of restoring the Right-Of-Way to its approximate pre-excavation condition. If, twelve (12) months after completion of the Restoration of the Right-Of-Way, the City determines that the Right-Of-Way have been properly restored, the surety on the Construction Bond shall be released.
(4) The Permittee shall perform the 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 Right-Of-Way; the traffic volume carried by the Right-Of-Way; the character of the neighborhood surrounding the Right-Of-Way; the pre-excavation condition of the Right-Of-Way; the remaining life-expectancy of the Right-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 Right-Of-Way that would otherwise result from the excavation, disturbance or damage to the Right-Of-Way; and the likelihood that the particular method of Restoration would be effective in slowing the depreciation of the Right-Of-Way that would otherwise take place. Methods of Restoration may include, but are not limited to, patching the affected area, replacement of the Right-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 Right-Of-Way affected by the work.
(5) By restoring the Right-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 Service Director, correct all Restoration work to the extent necessary using the method required by the Service Director. Weather permitting, said work shall be completed within five (5) calendar days of the receipt of the notice from the Service Director, unless otherwise extended by the Service Director.
(6) If the Permittee fails to restore the Right-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 billing, the Restoration cost of restoring the Right-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 Permittee(s), then the Service Director may reasonably apportion the Restoration responsibility among the City, Permittees and/or other Persons.
(l) Damage to Other Facilities.
(1) Each Permittee shall be responsible for the cost of repairing any City-owned Facilities in the Right-Of-Way which the Permittee or its Facilities damage.
(2) In the case of an Emergency, and if possible after reasonable efforts to contact the Permittee seeking a timely response, when the City performs work in the Right-Of-Way and finds it necessary, as may be allowed by Law, to maintain, support, or move a Permittee's Facilities to protect those Facilities, the costs associated therewith will be billed to that Permittee 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 in the event a Permittee does not pay, or the City may call upon any bond or letter of credit posted by the Permittee and pursue any and all legal or equitable remedies. Each Permittee shall be responsible for the cost of repairing any damage to the Facilities of another Permittee caused during the City's response to an Emergency occasioned by that Permittee's Facilities.
(m) Right-Of-Way Vacation. If the City sells or otherwise transfers a Right-Of-Way which contains the Facilities of a Permittee, such sale or transfer shall be subject to any existing easements of record and any easements required pursuant to Ohio R.C. 723.041.
(n) Installation Requirements. The excavation, backfilling, Restoration, and all other work performed in the Right-Of-Way shall be performed in conformance with all applicable Laws, Rules and Regulations, other standards as may be promulgated by the Service Director.
(o) Inspection. When the Construction under any Permit hereunder is completed, the Permittee shall notify the Service Director.
(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 which poses a serious threat to the life, health, safety or well-being of the public, violates any law or which violates the terms and conditions of the Permit and/or Chapter 1149.
(3) The Inspector may issue an order to the Permittee for any work which does not conform to the Permit and/or applicable standards, conditions 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 at pursuant to Section 1149.28(d). An order may be appealed to the Service Director. The decision of the Service Director may be appealed to the Mayor whose decision shall be final. If not appealed, within ten (10) days after issuance of the order, the Permittee shall present proof to the Service Director that the violation has been corrected. If such proof has not been presented within the required time, the Service Director may revoke the Permit pursuant to Section 1149.13(e).
(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 Laws.
(2) Permittee shall comply with all requirements of 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 Right-Of-Way pursuant to its Permit, regardless of who performs the work.
(4) No Right-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 1149.13(d)(1).
(5) Permittee shall not obstruct a Right-Of-Way so that the natural free and clear passage of water through the gutters or other waterways shall be interfered with. The Service Director 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. Where not otherwise required to be placed underground by Chapter 1149 and in accordance with Ohio R.C. 4939.0314(G) to the extent it is in effect a Permittee shall locate Facilities underground at the request of an adjacent property owner, provided that such placement of Facilities underground is consistent with the Permittee'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 home directly by the property owner making the request. A Permittee, 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 Permittee under the Right-of-Way shall be installed in conduit.
(Ord. 11-22. Passed 2-7-22.)