(a) Findings and Purpose.
(1) The Municipality is vitally concerned with the use of all Rights of Way within the corporation limits as such Rights of Way are a valuable and limited resource which must be utilized to promote the public health, safety, and welfare including the economic development of the Municipality.
(2) Changes in the public utilities and communication industries have increased the demand and need for access to Rights of Way and placement of facilities and structures therein.
(3) It is necessary to comprehensively plan and manage access to, and structures and facilities in, the Rights of Way to promote efficiency, discourage uneconomic duplication of facilities, lessen the public inconvenience of uncoordinated work in the Rights of Way, and promote the public health, safety, and welfare.
(4) The Municipality has authority under the Laws and Constitution of the State of Ohio, including but not limited to Article 18, Sections 3, 4 and 7, to regulate public and private entities which use the Rights of Way.
(5) In the interest of equity and uniformity specific utilities and their uses are not singled out in this ordinance. The Municipality recognizes the inherent differences between aerial and underground utilities and that some rules and regulations may pertain to one and not the other. Where there is a question of applicability, the ordinance shall be applied in the least restrictive way for the occupant, providing the municipalities primary goal of maintaining and managing the right of way is not negatively impacted.
(b) Scope. The provisions of this Chapter shall apply to all users of the Rights of Way as provided herein. To the extent that anything in this ordinance conflicts with any other ordinance, rule, or regulation, then the provisions of this ordinance shall control. Where this ordinance is silent on an issue Ohio Revised Code Section 4939 shall control.
(c) Definitions. For the purposes of Chapter 931 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 defined by Ohio Revised Code Section 4939.01 and where different Ohio R.C. 4939 shall be used, other words not defined in this chapter or Ohio R.C. 4939.01 shall be given their common and ordinary meaning. References hereafter to "Sections" are, unless otherwise specified, references to Sections in this Chapter. Defined terms remain defined terms whether or not capitalized.
(1) "AFFILIATE" means each Person who falls into one or more of the following categories: (a) each Person having, directly or indirectly, a controlling interest in a Provider, (b) each Person in which a Provider has, directly or indirectly a controlling interest, (c) each officer, director, general partner, limited partner or shareholder holding an interest of fifteen percent (15%) or more, joint venture or joint venture partner, of a Provider, and (d) each Person, directly or indirectly, controlling, controlled by, or under common control with the Provider; provided that Affiliate shall in no event mean any limited partner or shareholder holding an interest of less than fifteen percent (15%) of such Provider, or any creditor of such Provider solely by virtue of its status as a creditor and which is not otherwise an Affiliate by reason of owning a controlling interest in, being owned by, or being under common ownership, common management, or common control with, such Provider.
(2) "APPLICANT" means any Person who seeks to obtain a Certificate of Registration and/or a Permit.
(3) "APPLICATION" means the process by which an Applicant submits a request to obtain Certificate of Registration and/or a Permit.
(4) "APPLICATION FEE" means the fee paid to the Municipality for application for a Certificate of Registration pursuant to Section 931.03(a).
(5) "BANKRUPTCY CODE" means the United States Bankruptcy Code of 1978, as amended including regulations promulgated by Title 11 of the United States Code.
(6) "BEST EFFORT(S)" means the best reasonable efforts under the circumstances, taking into consideration, among other appropriate matters, all applicable Laws, regulations, safety, engineering and operational codes, available technology, human resources, and cost.
(7) "CABLE FRANCHISE" means the same as "franchise" in the Cable Communications Policy Act of 1984, 98 Stat. 2779, 47 U.S.C. 522.
(8) "CABLE OPERATOR" means the same as in the Cable Communications Policy Act of 1984, 98 Stat. 2779, 47 U.S.C. 522.
(9) "CABLE SERVICE" means the same as in the Cable Communications Policy Act of 1984, 98 Stat. 2779, 47 U.S.C. 522.
(10) "CERTIFICATE OF REGISTRATION" means the document issued to each Provider and its unique System to occupy the Rights of Way within the Municipality that outlines the terms of that occupancy of the Rights of Way.
(11) "CODE (or C.O.)" means the Codified Ordinances of the municipality.
(12) "CONFIDENTIAL/PROPRIETARY INFORMATION" means all information that has been either identified or clearly marked as Confidential/Proprietary Information by the Provider prior to any submission. Information that is considered by a Provider to be either trade secret, confidential and/or proprietary, or information that upon public disclosure would be highly likely to place critical portions of a Provider's System in material danger of vandalism, sabotage, or an act of terrorism, all may be marked as Confidential/Proprietary Information by a Provider when submitted. Upon receipt of such clearly marked Confidential/Proprietary Information from a Provider, the Municipality shall endeavor, in accordance with the requirements of Ohio R.C. Chapter 149 (the Ohio Public Records Act), to use all the same reasonable measures and exercise the same degree of care that the Municipality uses to protect its own information of such a nature from disclosure to third parties. In the event that the Municipality receives a request from a third party for disclosure of information a Provider has clearly marked as Confidential/Proprietary Information, then the Municipality shall respond as required by Ohio R.C. Chapter 149, but will attempt to use all reasonable means to notify the Provider as soon as possible.
(13) "CONSTRUCT" means, but not be limited to, digging, boring, tunneling, trenching, excavating, obstructing, installing wires, installing conduit, installing pipes, installing transmission lines, installing poles, installing signs or installing Facilities, other than landscaping, ornamental plantings in, on, above, within, over, below, under or through any part of the Rights of Way. Construct shall also include the act of opening and/or cutting into the surface of any paved or improved surface that is any part of the Right of Way.
(14) "CONSTRUCTION" means, but not limited to, the act or process of digging, boring, tunneling, trenching, excavating, obstructing, installing wires, installing conduit, installing pipes, completing work on, above, within, over, below, under or through any part of the Rights of Way transmission lines, service lines, curb stops, corp stops, valves, pedestals, boxes, vaults, poles, signs or installing any other Facilities, other than landscaping, ornamental plantings. Construction shall also include the act of opening and/or cutting into the surface of any paved or improved surface that is part of the Right of Way.
(15) "CONSTRUCTION BOND" means a bond posted to ensure proper and complete Construction and/or repair of a Facility and the affected Rights of Way pursuant to a Permit.
(16) "CONSTRUCTION AND MAJOR MAINTENANCE PLAN" means a written plan including maps of the expected location, design, other related equipment and Facilities of a Provider which describes in full the Construction intended to be accomplished by the Provider in the Rights of Way over the next calendar year.
(17) "CONSTRUCTION PERMIT" means the Permit specified in Section 931.13 et seq. which must be obtained before a Person may construct in, locate in, occupy, maintain, move or remove Facilities from, in or on the Rights of Way.
(18) "COUNTY" means the county(s) the municipality resides in. County specifically excludes any and all contractors, agents or other Person acting on behalf of said County.
(19) "CREDIBLE" means worthy of being believed.
(20) "EMERGENCY" means a condition that poses a clear and immediate danger to life or health, or of a significant loss of property.
(21) "FACILITY(IES)" means any tangible thing located in any Rights of Way within the Municipality; but shall not include boulevard plantings, ornamental plantings or gardens planted or maintained in the Rights of Way between a Person's property and the street edge of pavement.
(22) "FCC" means the Federal Communications Commission, or any successor thereto.
(23) "FERC" means the Federal Energy Regulatory Commission as created and amended in accordance with the Federal Power Act, 16 U.S.C. 792, or its statutory successor.
(24) "FULL" means unable to accommodate any additional Facilities as determined by the Municipality Engineer in accordance with the principles of public health, safety and welfare, following a reasonable analysis taking into consideration all applicable Law; commonly accepted industry standards; and routine engineering practices.
(25) "IN" when used in conjunction with Rights of Way, means in, on, above, within, over, below, under or through a Rights of Way.
(26) "INSPECTOR" means any Person authorized by the Mayor to carry out inspections related to the provisions of Chapter 931.
(27) "LAW" means any local, state and/or federal legislative, judicial or administrative order, certificate, decision, statute, constitution, ordinance, resolution, regulation, rule, tariff or other requirement in effect either at the time of execution of Chapter 931 or at any time during the location of, and/or while a Provider's Facilities are located in the public Rights of Way.
(28) "MAYOR" means the duly elected Mayor of the Municipality or his/her designee.
(29) "MINOR MAINTENANCE" means a work performed that does not constitute construction, as defined in this ordinance as set forth in Section 931.15, in or on the Rights of Way.
(30) "OHIO MANUAL OF UNIFORM TRAFFIC CONTROL DEVICES OR OMUTCD" means the uniform system of traffic control devices promulgated by the Ohio Department of Transportation pursuant to O.R.C. § 4511.09.
(31) "O.R.C" means the Revised Code of the State of Ohio.
(32) "OHIO UTILITY PROTECTION SERVICE" means the utility protection service as defined in O.R.C. § 153.64 and/or § 3781.26 or a statutory successor thereto.
(33) "PERMIT" means a Construction Permit as the context requires.
(34) "PERMIT COST" means all direct, incidental and indirect costs actually incurred or realized by the Municipality for Permit issuance, permit oversight and pavement degradation resulting from Construction activity.
(35) "PERMIT FEE" means money paid to the Municipality for a Permit to Construct in the Rights of Way as required by Chapter 931.
(36) "PERMITTEE" means any Person to whom a Construction Permit and/or, Minor Maintenance Permit has been granted by the Municipality and not revoked.
(37) "PERSON" means any natural or corporate person, business association or other business entity including, but not limited to, a partnership, a sole proprietorship, a political subdivision, a public or private agency of any kind, a utility, a successor or assign of any of the foregoing, or any other legal entity.
(38) "PROVIDER" means a Person who owns or operates a System and has a valid Certificate of Registration. The Municipality, County and Cable Operators operating pursuant to a valid Cable Franchise, or Video Service Provider operating pursuant to a valid video service authorization shall also be considered Providers.
(39) "PUCO" means the Public Utilities Commission of Ohio as defined in O.R.C. § 4901.02.
(40) "REGISTRATION MAINTENANCE FEE" means the money paid to the Municipality to maintain a Certificate of Registration and compensate the Municipality for all actual costs incurred by the Municipality in the management, administration and control of the Rights of Way of the Municipality, and which are not reasonably recoverable by the Municipality through Construction Permit Fees or other approved recovery mechanisms.
(41) "REMOVAL BOND" means a bond posted to ensure the availability of sufficient funds to remove a Provider's Facilities upon abandonment or disuse, or discontinuance of a Provider's use or occupation of the Rights of Way.
(42) "RESTORATION" means the process and the resultant effects by which a Rights of Way is returned to a condition as good as or better than its condition immediately prior to the Construction. Restoration shall occur in accordance with the Rules and Regulations as may be enacted or amended from time to time.
(43) "RIGHT(S) OF WAY" means the surface and space in, above, within, over below, under or through any real property in which the Municipality has an interest in Law or equity, whether held in fee, or other estate or interest, or as a trustee for the public, including, but not limited to any public street, boulevard, road, highway, freeway, lane, alley, court, sidewalk, parkway, river, tunnel, viaduct, bridge, conduit, or any other place, area, or real property owned by or under the legal or equitable control of the Municipality that, consistent with the purposes for which it was dedicated, may be used for the purposes of constructing, operating, repairing, or replacing a System. Rights of Way shall not include buildings, parks, or other public property or easements that have not been dedicated to compatible uses, except to the extent the use or occupation of such property is specifically granted in a Permit or by Law.
(44) "RIGHT(S) OF WAY COST" means all direct, incidental and indirect costs borne by the Municipality for the management and administration of the Rights of Way and this Chapter.
(45) "RULE(S) AND REGULATION(S)" means any rules or regulations adopted by the Municipality Engineer pursuant to Section 931.06(e).
(46) "SERVICE(S)" means the offering of any service or Utility for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, or alternatively, the provision (for a fee or otherwise) of any service or Utility between two or more points for a proprietary purpose to a class of users other than the general public that in the opinion of the Mayor constitutes a service.
(47) "SUPPLEMENTARY APPLICATION" means any application made to Construct on or in more of the Rights of Way than previously allowed, or to extend a Permit that had already been issued.
(48) "SYSTEM" means any System of conduit, cables, ducts, pipes, wires, lines, towers, antennae wave guides, optic fiber, microwave, laser beams and any associated converters, equipment or Facilities or Utilities designed and constructed for the purpose of producing, receiving, amplifying, delivering or distributing Services within the Municipality. A System shall specifically include, but not necessarily be limited to: electric distribution and/or transmission systems, natural or artificial gas distribution and/or transmission systems, water distribution systems, storm sewer systems, sanitary sewer systems, cable television systems, video service networks, telecommunications systems (whether voice, video, data, or other), fiber optic systems, and wireless communications systems.
(49) "SYSTEM REPRESENTATIVE" means the specifically identified agent/employee of a Provider who is authorized to direct field activities of that Provider and serve as official notice agent for System related information. Any such System Representative shall be required to be available at all times to receive notice of and immediately direct response to System related emergencies or situations.
(50) "TRANSFER" means the disposal by the Provider, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, of fifty-one percent (51%) or more at one time of the ownership or controlling interest in the System, or fifty-one percent (51%) cumulatively over the term of a Certificate of Registration of such interests to a corporation, partnership, limited partnership, trust, or association or Person or group of Persons acting in concert.
(51) "TRENCHLESS TECHNOLOGY" means, but not be limited to, the use of directional boring, horizontal drilling, microtunneling and other techniques in the Construction of underground portions of Facilities which result in the least amount of disruption and damage to Rights of Way as possible.
(52) "UNDERGROUND FACILITY(IES)" means all lines, cables, conduits, pipes, posts, tanks, vaults and any other Facilities which are located wholly or partially underneath Rights of Way.
(53) "UNUSED FACILITY(IES)" means facilities located in the Rights of Way which have remained unused for twelve (12) months and for which the Provider is unable to provide the Municipality with a Credible plan detailing the procedure by which the Provider intends to begin actively using such Facilities within the next twelve (12) months, or that it has a potential purchaser or user of the Facilities who will be actively using the Facilities within the next twelve (12) months, or that the availability of such Facilities is required by the Provider to adequately and efficiently operate its System.
(54) "UTILITY(IES)" means any water, sewer, gas, drainage, sprinkler or culvert pipe and any electric power, telecommunications, signal communications, cable television or video service provider conduit, fiber, wire, cable, or an operator thereof.
(55) "UTILITY CORRIDOR(S)" means those specific areas of the Rights of Way designated as such by the municipality pursuant to Section 931.03(f)(1).
(56) "VIDEO SERVICE" means the same as "video service" in O.R.C. 1332.21(J).
(57) "VIDEO SERVICE AUTHORIZATION (or VSA)" means a "video service authorization" as issued to a Video Service Provider by the Director of the Ohio Department of Commerce in accordance O.R.C. 1332.24(A)(1).
(58) "VIDEO SERVICE NETWORK" means the same as "video service network" in O.R.C. 1332.21(L).
(59) "VIDEO SERVICE PROVIDER (or VSP)" means the same as "video service provider" in O.R.C. 1332.21(M).
(60) "MUNICIPALITY" means the duly elected representative(s) of the political subdivision.
(61) "DESIGNEE" means the duly appointed designee for the Mayor.
(62) "COUNCIL" means the governing body of the municipality,
(63) "ENGINEER" means the duly appointed municipal engineer.
(64) "FISCAL OFFICER" means the duly appointed Fiscal or Chief Financial Officer of the municipality.
(65) "SOLICITOR" means the duly appointed solicitor or chief legal officer of the municipality.
(66) "WORKING DAY" means any Monday, Tuesday, Wednesday, Thursday, or Friday, but excluding legal holidays observed by the Municipality.
(Ord. 17-2021. Passed 5-4-21.)