(a) Location of Facilities. All Facilities shall be Constructed, Reconstructed, installed and located in accordance with the following terms and conditions:
(1) Facilities shall be installed within an existing compatible underground duct or conduit whenever Excess City exists within such Facility.
(2) Unless application of this provision is specifically prohibited by state or federal law, a Service Provider with permission to install Overhead Facilities shall install its Facilities on pole attachments to existing utility poles only, and then only if Surplus Space is available; and no pole located within the Public Right-of-Way shall exceed fifty (50) feet in height unless approved by Village Council ordinance.
(3) Whenever the existing electric, cable, telecommunications and other similar Facilities are located underground in a certain area in a Public Right-of-Way, a Service Provider with permission to Occupy the same Public Right-of-Way with the electric, cable, telecommunications or other similar Facilities, must also locate its Facilities underground to the extent technologically feasible and economically practicable.
(4) Whenever a Service Provider is required to locate or relocate Facilities underground in a certain area of the Right-of-Way, every Provider with Facilities within the same certain area of the Right-of-Way shall concurrently relocate their Facilities underground. This requirement may be waived by the Village for good cause shown including consideration of such factors as: the remaining economic life of the Facilities, public safety, customer service needs, any Law precluding such undergrounding of the Facilities, and hardship to the Provider, as determined by the Village Engineer. If a Provider is denied a requested waiver from the above requirements, the Provider may appeal the denial of the Village Engineer to the Village Administrator as set forth in Section 905.99
(c).
(5) Except for Overhead Facilities as provided herein, no Facilities shall be located above ground in a Public Right-of-Way without the express written permission of the Village Engineer.
(6) The Village reserves the right to require a Service Provider to provide Excess City in the Public Right-of-Way at the time of Construction, Reconstruction, installation, location or relocation of Facilities.
(b) Excess City. To reduce Excavation in the Public Right-of-Way, it is the Village's goal to encourage Service Providers to share occupancy of underground conduit as well as to construct, whenever possible, excess conduit City for occupancy of future Facilities in the Public Right-of-Way. Therefore, if a Service Provider is constructing underground conduit in the Public Right-of-Way for its own Facilities, and the Village reasonably determines such construction is in an area in which other Service Providers would likely construct Facilities in the future, the Village may require the Service Provider to construct the conduit in the Public Right-of-Way with Excess City in the Public Right-of-Way, provided the Service Provider shall be reimbursed for the use of the Excess City by another Service Provider. The Service Provider may charge a reasonable market lease rate for occupancy of the additional conduit space as reimbursement.
(c) Village Owned Conduit. If the Village owns or leases conduit in the path of a Service Provider's proposed Facilities, and provided it is technologically feasible for the Service Provider's Facilities to Occupy the conduit owned or leased by the Village, the Service Provider shall be required to Occupy the conduit owned or leased by the Village in order to reduce the necessity to Excavate the Public Right-of-Way. The Service Provider shall pay to the Village a Public Way Fee that is assessed pursuant to Section 905.08
for such Occupancy.
(d) Relocation or Removal of Facilities. Within thirty (30) days following written notice from the Village, a Service Provider shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any Facilities in the Public Right-of-Way whenever the Village shall have determined that such removal, relocation, change or alteration is reasonably necessary for:
(1) The Construction, Reconstruction, repair, maintenance or installation of any Village or other public improvement, in, upon, or near the Public Right-of-Way;
(2) The operations of the Village or other governmental entity in or upon the Public Right-of-Way;
(3) 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 Public Rights of Way; or
(4) The sale, conveyance, vacation, or narrowing of all or any part of the Public Right-of-Way. Notwithstanding the foregoing, a Service Provider who has Facilities in the Public Rights-of-Way subject to a vacation or narrowing that is not required for the purposes of the Village, shall have a permanent easement in such vacated portion or excess portion in conformity with Ohio Revised Code Section 723.041.
Notwithstanding the above, no Service Provider shall be required to bear the expense of removal, relocation, change or alteration of position of any Facilities if such requirement would be prohibited by law.
(e) Removal of Unauthorized Facilities. Within thirty (30) days following written notice from the Village, any Service Provider or other Person that owns, controls or maintains any unauthorized System, Facility or related appurtenances in the Public Right-of-Way shall, at its own expense, remove those Facilities or appurtenances from the Public Right-of-Way of the Village or shall arrange to sell the System, Facilities or appurtenances to the Village. A System or Facility is unauthorized and subject to removal, following notice, in the following circumstances:
(1) Upon revocation of the Service Provider's consent to Occupy or Use the Public Right-of-Way;
(2) If the System or Facility was Constructed, Reconstructed, installed, operated, located or maintained without the consent to do so, except as otherwise provided by this Chapter;
(3) Upon abandonment of a Facility in the Public Right-of-Way, with the exception of underground facilities abandoned in a manner authorized and approved by the Village;
(4) If the System or Facility was Constructed, Reconstructed, installed, operated, located or maintained, or any Excavation of a Public Right-of-Way was performed, without prior issuance of a required Construction Permit, except as otherwise provided by this Chapter;
(5) If the System or Facility was Constructed, Reconstructed, installed, operated, located or maintained, or any Excavation of a Public Right-of-Way was performed, at a location not permitted pursuant to the Village's consent to Occupy or Use the Public Right-of-Way or Construction Permit; or
(6) If the Service Provider fails to comply with the Registration requirements of Section 905.03
of this Chapter.
(f) Failure to remove and/or relocate Facilities. If the Service Provider fails to remove and/or relocate any of its Facilities within the thirty (30) days period set forth in subsection (e) of this Section 905.05
, or receive an extension of time from the Village Engineer for commencement and completion of removal or relocation, then, to the extent not inconsistent with applicable law, the Village shall have the right, but not the obligation, to do the following:
(1) Declare that all rights, title and interest to the Facilities belong to the Village 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
(2) Authorize removal of the Facilities installed by the Service Provider in, on, over or under the Rights of Way of the Village at Service Provider's cost and expense, by another Person; however, the Village shall have no liability for any damage caused by such action and the Service Provider shall be liable to the Village for all reasonable costs incurred by the Village in such action; and
(3) To the extent not inconsistent with applicable law, any portion of the Service Provider's Facilities in, on, over or under the Public Right-of-Way of the Village designated by the Village for removal and not timely removed by the Service Provider shall belong to and become the property of the Village, without payment to the Service Provider, and the Service Provider shall execute and deliver such documents, as the Village shall request, in form and substance acceptable to the Village, to evidence such ownership by the Village.
(g) Emergency Removal or Relocation of Facilities. The Village retains the right and privilege to cut or move any Facilities, or stop work on any Construction, Reconstruction, installation, operation or Excavation, located in the Public Right-of-Way of the Village, as the Village may determine to be necessary, appropriate or useful in response to any need to protect the public health, safety or welfare; except to the extent that the Village's actions would cause a dangerous or potentially dangerous situation. (Ord. 2017-026. Passed 4-18-17.)