§ 98.03 PROHIBITION; TYPES OF PERMITS.

For purposes of this chapter, the following terms, phrases, words, and their derivations have the meanings 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.

APPLICANT. Any person applying for a right-of-way permit hereunder.

APPROVED. Approval by the city pursuant to this chapter or any service agreement adopted hereunder.

BEST EFFORTS. The best reasonable efforts under the circumstances, taking into consideration, among other appropriate matters, safety, expedition, available technology and human resources and cost.

BUSINESS DISTRICT RIGHT-OF-WAY or DUBLINK AREA. The right-of-way described in Exhibit A, attached to Ordinance No. 152-97, passed December 15, 1997.

CHAPTER. Chapter 98 of the Code of Ordinances of the city, as amended from time to time, and any administrative regulations adopted hereunder.

CITY. The City of Dublin, Ohio.

CITY MANAGER. The Dublin City Manager or his/her designee.

COUNCIL. The legislative body of the city.

FORCE MAJEURE. A strike, act of God, act of public enemy, order of any kind of a government of the United States of America or of the State of Ohio or any of their departments, agencies or political subdivisions; riot, epidemic, landslides, lightning, earthquake, fire, tornado, storm, flood, civil disturbance, explosion, partial or entire failure of a utility or any other cause or event not reasonably within the control of the party disabled by such Force Majeure, but only to the extent such disabled party notifies the other party as soon as practicable regarding such Force Majeure and then for only so long as and to the extent that, the Force Majeure prevents compliance or causes non-compliance with the provisions hereof.

GENERAL RIGHT-OF-WAY PERMIT. Shall have the meaning set forth in § 98.03(B)(1).

PERMITTEE. Any person issued a right-of-way permit pursuant to this chapter to use or occupy all or a portion of the rights-of-way in accordance with the provisions of this chapter and said right-of-way permit.

PERSON. Any natural person or any association, firm, partnership, joint venture, corporation, or other legally recognized entity, whether for-profit or not-for-profit.

PUBLIC PROPERTY. Any real property owned by the city or easements held or used by the city, other than a right-of-way.

REGULATION or ADMINISTRATIVE REGULATIONS. Any rule adopted by the City Manager pursuant to the authority of this chapter, and the procedure set forth in § 98.10 to carry out its purpose and intent.

RESIDENTIAL PURPOSES. Residential use of right-of-way for such uses as mailboxes, trees, landscaping, lawn sprinklers, decorative purposes or any curb cuts and driveways, and as may be further defined in any administrative regulations promulgated pursuant to § 98.03(A).

RIGHT-OF-WAY. The surface of and the space above and below the paved or unpaved portions of any public street, public road, public highway, public freeway, public lane, public path, public bikepath, public way, public alley, public court, public sidewalk, public boulevard, public parkway, public drive and any other land dedicated or otherwise designated for the same now or hereafter held by the city which shall, within its proper use and meaning in the sole opinion of the City Manager, entitle a permittee, in accordance with the terms hereof and of any right-of-way permit, to the use thereof for the purpose of installing or operating any poles, wires, cables, transformers, conductors, ducts, lines, mains, conduits, vaults, manholes, amplifiers, appliances, attachments or other property or facilities as may be ordinarily necessary and pertinent to the provision of utility, cable television, communications or other services as set forth in any service agreement or any right-of-way permit. RIGHT-OF-WAY shall not include private easements or public property, except to the extent the use or occupation of public property is specifically granted in a right-of-way permit or by administrative regulation.

RIGHT-OF-WAY PERMIT. The non-exclusive grant of authority to use or occupy all or a portion of city's rights-of-way granted pursuant to this chapter.

SERVICE AGREEMENT. A valid service agreement, franchise agreement or operating agreement issued by the city pursuant to the Dublin City Charter, the Dublin City Codes or Constitution and laws of Ohio or the United States, and accepted by any person, pursuant to which such person may operate or provide utility, cable television, communication or other such service to consumers within the city.

SPECIAL RIGHT-OF-WAY PERMIT. Shall have the meaning set forth in § 98.03(B)(2).

UTILITY RIGHT-OF-WAY PERMIT. Shall have the meaning set forth in § 98.03(B)(3).

(Ord. 152-97, passed 12-15-97)

§ 98.02 PURPOSE AND SCOPE OF CHAPTER.

(A) The purpose of this chapter is to provide for the regulation of the use or occupation of all rights-of-way in the city, the issuance of right-of-way permits to persons for such use or occupancy and to set forth the policies of the city related thereto.

(B) A right-of-way permit issued pursuant to this chapter does not take the place of any service agreement, franchise, license, or permit which may be additionally required by law. Each permittee shall obtain any and all such additional state, federal or city franchises, licenses or permits necessary to the operation and conduct of its business or the occupation or use of any right-of-way.

(D) The city's objectives regarding rights-of-way is:

(1) Promote cooperation among telecommunications service providers and the city to minimize public inconvenience during ROW work and disruption of public property; and ensure safe and efficient use of the city's streets, right-of-ways, and easements;

(2) Promote the availability of a wide range of utility, communications, and other services, including the rapid deployment of new technologies and innovative services to city businesses and residents at reasonable costs;

(3) Enhance the city's economic development programs;

(4) Ensure adequate public compensation for private use of the ROW and related costs;

(5) Promote and require reasonable accommodation of all users of ROW;

(6) To comply with the Telecommunications Act of 1996 and all applicable laws, rules and regulations;

(7) To promote the utilization of rights-of-way for the public health, safety and welfare; and,

(8) To assure that applicants have the financial, technical and managerial resources to comply with this chapter and the provisions of any right-of-way permit issued hereunder.

(E) All right-of-way permits granted hereunder shall be non-exclusive and no property right of any nature shall be created by the granting of a permit under this chapter.

(F) This chapter does not apply, and nothing herein should be construed to apply the provisions of this chapter, to structures or facilities owned or operated by the city or any city operations that occupy or use the rights-of-way. It is specifically contemplated, however, that all city departments or divisions that utilize the rights-of-way shall carry out their operations in a manner consistent with the policy set forth in this chapter, including participation and cooperation in all joint planning hereunder and identification of structures and facilities located in the rights-of-way.

(Ord. 152-97, passed 12-15-97)

§ 98.03 PROHIBITION; TYPES OF PERMITS.

(A) No person shall use, occupy, construct, own or operate structures or facilities in, under or over any rights-of-way or any public property within the city unless such person first obtains a right-of-way permit and conforms to the requirements set forth therein and in this chapter; provided, however, that right-of-way permits shall not be required for the following uses:

(1) Newspaper stands;

(2) Carts;

(3) Sidewalk cafes;

(4) Parking lots; and so long as, in the opinion of the City Manager, that such use:

(a) Has received or will receive all other necessary permits;

(b) Is not inconsistent with policy of the city;

(d) Does not materially interfere with other lawful uses of the right-of-way.

The City Manager may adopt administrative regulations controlling and further defining residential purposes and to otherwise implement the determinations to be made under this section.

(B) The following types of right-of-way permits are available:

(1) General right-of-way permit. Right-of-way permit granted to persons who desire and are granted authority to utilize rights-of-way generally, except that the permit shall not permit the holder to use Dublink Area until such time as the administrative regulations are promulgated and effective pursuant to § 98.10 and, provided, however, that nothing in this chapter or in any general right-of-way permit shall be construed to authorize the permittee to provide any utility, cable television, communications or other services for which the city may lawfully require a service agreement should the city determine to require the same; and

(2) Special right-of-way permit. Right-of-way permit granted to a person for a specific, limited use, including but not limited to residential purposes, of the rights-of-way or a specific portion thereof.

(3) Utility permit. Right-of-way permit granted to a person who is a traditional monopoly provider of essential services, who possesses a valid operating agreement and who desire and are granted authority to utilize rights-of-way generally. As of the date of this chapter, gas, electric, water and sewer are such utilities. The City Manager may adopt regulations controlling and defining "traditional monopoly provider of essential services". A utility permittee may be granted a waiver of some or all the requirements by this chapter at the discretion of the City Manager.

(C) Any such right-of-way permit may also allow the use of specified public property for the uses set forth in the right-of-way permit and in this chapter.

(D) Each right-of-way permit shall specify the use or uses for which it is granted and contain such other non-discriminatory terms and conditions as are appropriate and as are set forth in the service agreement.

(E) Right-of-way permits or the rights of a permittee thereunder are not transferable without the prior express written approval of the City Manager upon a showing that the recipient has the financial, technical and managerial resources to comply with the obligations of this chapter and its right-of-way permit. The City Manager may adopt administrative regulations providing procedures for transfer of right-of-way permits.

(F) No person shall be authorized to occupy the Dublink Area, except as follows:

(1) A person/provider who acquires a general or utility permit under the terms of this chapter, who has existing facilities in the Dublink Area on the effective date of this chapter shall be permitted to continue to keep said existing facilities in the Dublink Area. Any additional facility requirements will be in accordance with the administrative regulations promulgated by the City Manager.

(2) A valid holder of a special right-of-way permit.

(3) A valid holder of a general or utility permit subject to the administrative regulations promulgated by the City Manager.

(Ord. 152-97, passed 12-15-97) Penalty, see § 98.99

§ 98.04 APPLICATION PROCEDURE, APPEAL.

(A) Applications for a general right-of-way permit by a holder of a service agreement shall be filed in such form and in such manner as the service agreement requires. There shall be no application fee. Any person holding a valid service agreement shall be granted a general right-of-way permit. Such general right-of-way permit shall be valid so long as the underlying service agreement is valid and the applicable provisions of that service agreement, the general right-of-way permit and of this chapter are complied with; provided, however, that such general right-of-way permit shall only entitle the permittee to utilize the rights-of-way, in accordance with this chapter, for purposes directly related to the provision of the specific services for which it has a service agreement. Any other right-of-way use by such permittee shall require a separate or amended general right-of-way permit issued pursuant to § 98.04(C).

(B) Applications for a utility right-of-way permit by a holder of a service agreement shall be filed in such form and in such manner as the administrative regulations require. There shall be no application fee. Any person who is a traditional monopoly provider of essential services and who holds a valid service agreement shall be granted a utility right-of-way permit. Such utility permit shall be valid so long as the underlying service agreement is valid and the applicable provisions of that service agreement, the utility right-of-way permit and of this chapter are complied with; provided, however, that such utility right-of-way permit shall only entitle the permittee to utilize the rights-of-way, in accordance with this chapter, for purposes directly related to the provision of the specific services for which it has a service agreement. Any other right-of-way use by such permittee shall require a separate or amended utility right-of-way permit issued pursuant to § 98.04(C) of this chapter.

(C) All other applications for general right-of-way permits, or amendments or renewals thereof, shall be filed in such form and in such manner as the administrative regulations require, along with an application fee of $1,000. The City Manager shall determine if the application is in order and shall, within 45 days of the receipt of a complete application, issue a written report regarding such application. The report shall recommend that the City Council deny or grant the general right-of-way permit, subject to any appropriate terms and conditions, in accordance with the criteria set forth in this chapter. The City Manager's report shall be served upon the applicant by regular U.S. mail along with a notice of when the City Council will consider the same. The City Council shall then consider such recommendation and make a final determination in writing, within 60 days of the City Manager's report, as to whether or not such general right-of-way permit amendments and/or renewal should be granted and if so, upon what terms and conditions. The term of each such general right-of-way permit shall be for five years from acceptance, unless the applicant requests a lesser term.

(D) An application for a special right-of-way permit amendment or renewal thereof, shall be filed in such form and in such manner as the administrative regulations require, along with an application fee of $500. If the City Manager determines that the application is in order and that the criteria set forth in § 98.05 of this chapter have been met, and that the application should be granted, the City Manager shall, within 45 days of a receipt of a completed application, conditionally grant or renew such a special right-of-way permit amendment and/or renewal subject to any appropriate terms and conditions or deny the same. The City Manager's conditional grant, renewal or denial shall be served upon the applicant by regular U.S. mail. Such conditional denial, grant or renewal shall become final unless modified or rejected by the City Council within 30 days of issuance by the City Manager, or unless appealed pursuant to § 98.04(E) of this chapter. The term of such special right-of-way permit shall be three years from acceptance, unless the applicant requests a lesser term. A special right-of-way permit for residential purposes may be granted for an indefinite term from acceptance, but may be canceled by the City Manager with 60 days written notice.

(E) Any applicant may appeal the failure of the City Manager to grant a right-of-way permit, or to recommend it to be granted upon terms and conditions acceptable to the applicant, to the City Council. In order to perfect such appeal, the applicant shall file, within ten days of the City Manager's determination or recommendation or within 60 days of the filing of the application if the City Manager has taken no action, an appeal to the City Council. The City Council shall then review the matter and render a final determination after affording the applicant an opportunity to be heard either in person or in writing. Except to the extent otherwise applicable by law, the City Council's decision shall be final.

(F) Any right-of-way permittee shall, within 30 days of the initial granting of any right-of-way permit hereunder, file a written acceptance of its permit in such form and in such manner as the administrative regulations require, and if and as applicable, pay a pro-rata portion of the fees required by § 98.07(B) or (C).

(Ord. 152-97, passed 12-15-97)

§ 98.05 CRITERIA FOR GRANTING PERMITS.

(A) A general right-of-way permit shall be granted to any applicant holding a valid service agreement.

(B) A utility right-of-way permit shall be granted to any applicant holding a valid service agreement and who is a traditional monopoly provider of essential services as defined by the City Manager.

(a) The granting of the right-of-way permit will contribute to the public health, safety or welfare in the city; and

(b) The granting of the right-of-way permit will be consistent with the policy of the city as set forth in § 98.02(D); and

(c) The applicant is not delinquent on any taxes or other obligations to the city or Franklin County and has the requisite financial, managerial and technical ability to fulfill all its obligations hereunder.

(2) A special right-of-way permit for residential purposes may be granted at the City Manager's discretion if the City Manager finds that granting such permit will not be inconsistent with the policy of the city set forth in § 98.02(D) and the city policies, ordinances and regulations.

(D) The City Manager or the City Council may impose such conditions on the granting of a permit as deemed reasonably required to be consistent with the criteria set forth in this § 98.05 and to promote the policy of the city set forth in § 98.02(D).

(Ord. 152-97, passed 12-15-97)

§ 98.06 OBLIGATIONS OF PERMITTEES; CONDITIONS OF PERMITS.

(A) In addition to the other requirements set forth herein and in the administrative regulations each permittee, shall:

(1) Use its best efforts to cooperate with other permittees and the city for the best, most efficient, most aesthetic and least obtrusive use of rights-of-way, consistent with safety, and to minimize traffic and other disruptions including street cuts;

(2) Participate in such joint planning, construction and advance notification of right-of-way work, excepting such work performed in an emergency; provided the permittee uses its best efforts to contact the city at the earliest possible time after beginning such work, as may be required by Chapter 97 and this chapter and as may be more specifically set forth in administrative regulations promulgated pursuant to this chapter;

(3) Cooperate with other Permittees in utilization of, construction in and occupancy of private rights-of-way, but only to the extent the same is consistent with the grant thereof or is not additionally burdensome to any property owner;

(4) Upon reasonable written notice of and at the direction of the City Manager, and at the permittee's sole cost, promptly remove or rearrange facilities as necessary, such as during any construction, repair or modification of any street, sidewalk, city utility or other public improvement, or as part of the City Manager's determination that designated portions of its rights-of-way should accommodate only underground facilities or that facilities should occupy only one side of a street or other public way, or if an additional or subsequent city or other public use of rights-of-way is inconsistent with the then current uses of such permittee or for any other reasonable cause as determined by the City Manager pursuant to § 98.14(B) of this chapter.

(5) Provide maps and other information relating to a permittee's facilities and operations within the rights-of-way and compliance with this chapter in such form, including digital or other form compatible with any city geographic information system, as the administrative regulations require. Said maps and information shall, at a minimum, locate, describe and identify all uses of, and "as built" structures and facilities of such permittee in, the rights-of-way;

(6) Perform all work, construction, maintenance or removal of structures and facilities within the right-of-way, including tree trimming, in accordance with good engineering and construction practice including any appropriate safety codes and in accordance with the administrative regulations and use its best efforts to repair and replace any street, curb or other portion of the right-of-way, or facilities or structure located therein, to a condition to be determined by the City Manager to be adequate under current standards and not less than materially equivalent to its condition prior to such work and to do so in a manner which minimizes any inconvenience to the public, the city and other permittees, all in accordance with the administrative regulations adopted hereunder or under city codes.

(7) Register with underground reporting services as set forth in the administrative regulations;

(8) Use its best efforts to cooperate with the city in any emergencies involving the rights-of-way in such manner as the administrative regulations shall require including the maintenance of a 24 hour emergency contact;

(9) Using distinct identification, identify all structures and facilities in the rights-of-way in accordance with the administrative regulations; and

(10) Designate a single point of contact for all purposes hereunder, as well as comply with such other contact and notice protocols as the administrative regulations require.

(B) Each permittee shall assure that any subcontractor or other person performing any work or service in the right-of-way on behalf of said permittee will comply with all applicable provisions of this chapter and its right-of-way permit and will identify the permittee for whom such subcontractor is working. Said permittee shall be responsible and liable hereunder for all actions of any such subcontractor or others as if said permittee had performed or failed to perform any such obligation.

(C) Following the initial receipt of a right-of-way permit (general, special or utility) every permittee shall be required to apply for and obtain the City Manager's approval for any new placement of facilities in the right-of-way or material modification to current facilities in the right-of-way. For the purposes of this section, FACILITIES shall be mean, but not necessarily be limited to, poles, transformers, conductors, conduits, ducts, cables, pipes, wires, fibers, lines, mains, vaults, manholes, amplifiers, appliances, towers, antennae, wave guides, optic fiber, microwave, and laser beams. For the purposes of this section, MATERIAL MODIFICATION shall be mean, but not necessarily be limited to, a material increase, decrease, alteration, or change to current facilities regarding: type of infrastructure, capacity, size, service, technology, or delivery methodology. The application for the City Manager's approval shall be filed in such form and in such manner as the administrative regulations require. Within 15 days of the receipt of a completed application for such new facilities installation or material modification, the City Manager shall either: approve the new facilities installation or material modification as requested; deny the new facilities installation or material modification as requested; or conditionally approve the new facilities installation or material modification subject to the permittee's following certain amendments to the work as may be required by the City Manager. When reviewing an application for new facility installation or material modification, the City Manager shall take into consideration all applicable current and future right-of-way usage needs, the health and safety of the public, responsible land use planning requirements, economic development issues, aesthetics, and any other reasonable considerations as may be required by this chapter. When granting a conditional approval for new facilities installation or material modification that contains required amendments, the City Manager may require the facilities, at the permittee's sole cost: be placed in certain specific locations of the right-of-way, meet certain technological or physical parameters, and/or be located entirely underground. A permittee may appeal the City Manager's decision regarding the approval or denial of a request for new facilities installation or material modification of a permittee's facilities to the City Council in accordance with § 98.04(E) of this chapter.

(Ord. 152-97, passed 12-15-97; Am. Ord. 136-02, passed 11-18-02) Penalty, see § 98.99

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