(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 Municipality) or another Permittee, a Permittee shall conduct a utility engineering study on the proposed route of Construction expansion or relocation if requested by the Municipality Engineer. 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 Municipality 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 Rights of Way along the proposed System route. Upon request of the Municipality Engineer, 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. Where the proposed location of Facilities and the location of existing Underground Facilities appear to conflict on the plans drafted in accordance with Section 931.14(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 Municipality Engineer, a Permittee shall not excavate more than a twelve (12) inch hole in the Rights of Way to complete this task for each apparent conflict. Any surfaces damaged shall be immediately repaired by the Permittee. A minimum of two (2) Working Days' notice shall be provided to the Municipality prior to performing these investigations.
E. 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 Engineer may modify the scope of the utility engineering study as necessary depending on the proposed Construction plans.
(b) Copy to Municipality. Upon completion of the tasks described in Section 931.14(a), the Construction Permittee shall submit, if necessary labeled in accordance with the requirements of Section 931.06(b), 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 Municipality. The mapping data is only required for the Municipality 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 Municipality Engineer determines that the format currently being used by the Provider is not capable of being read by the Municipality.
(c) Qualified Firm. All utility engineering studies conducted pursuant to this section shall be performed by the Permittee if in the discretion of the Municipality Engineer the Construction Permittee is qualified to complete the project itself, alternatively utility engineering studies shall be performed by a firm specializing in utility engineering.
(e) Construction Schedule. Unless otherwise provided for in Chapter 931 or in the Rules and Regulations, or unless the Municipality Engineer 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 Municipality not less than five (5) Working Days before commencing any work in or about the Rights of Way, and shall further notify the Municipality not less than two (2) Working 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 931.16(d)(1) (Emergency Situations) and Section 931.15 (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 Municipality's Rules and Regulations. Detailed plans and applicable specifications shall be submitted to the Municipality for review and approval prior to construction of any Facilities except those that are categorized as "Minor Maintenance" issues as per Section 931.15 herein.
(2) The Municipality 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. In making such decisions, the Municipality 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 Municipality 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, or microtunneling of pavement, driveways, and other sensitive topographic areas. In addition, all cable, wire or fiber optic cable installed in the subsurface Rights of Way pursuant to Chapter 931 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 931 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 Municipality.
(3) The Permittee demonstrates that the requirement unreasonably discriminates against the Permittee in favor of another Person.
(4) The requirements requested by the Municipality herein create an unreasonable economic burden for the Permittee that outweighs any potential benefit to the Municipality.
(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 whenever the Municipality finds it necessary to request such removal and relocation. In instances where the Municipality requests removal and/or relocation, the Municipality 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 similar size. In accordance with Law, the Municipality 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 Municipality.
B. 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.
C. 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 Municipality, shall have a permanent easement in such vacated portion or excess portion in conformity with O.R.C. 723.04.01.
(3) If, in the reasonable judgment of the Municipality, a Provider fails to commence removal and/or relocation of its Facilities as designated by the Municipality, within thirty (30) days after the Municipality's removal order, or if a Provider fails to substantially complete such removal, including all associated repair of the Rights of Way of the Municipality, within twelve (12) months thereafter, then, to the extent not inconsistent with applicable Law, the Municipality shall have the right to:
A. Declare that all rights, title and interest to the Facilities belong to the Municipality 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 Municipality at Provider's cost and expense, by another Person; however, the Municipality shall have no liability for any damage caused by such action and the Provider shall be liable to the Municipality for all reasonable costs incurred by the Municipality 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 Municipality designated by the Municipality for removal and not timely removed by the Provider shall belong to and become the property of the Municipality without payment to the Provider, and the Provider shall execute and deliver such documents, as the Municipality shall request, in form and substance acceptable to the Municipality, to evidence such ownership by the Municipality.
(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, 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 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 provide interim surface restoration as directed by the Engineer, and 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 Municipality.
(2) In approving an Application for a Construction Permit, the Municipality may choose either to have the Permittee restore the Rights of Way or alternatively to restore the Rights of Way itself if the Permittee has in the past not abided by requirements of Chapter 931.
(3) If the Municipality allows a Permittee to restore the Rights of Way, the Permittee may at the time of Application for a Construction Permit be required to post a Construction Bond in an amount submitted by the Permittee with a detailed cost breakdown to the Municipality Engineer for approval that is 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 Municipality determines that the Rights 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 Municipality. The Municipality 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 Municipality 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 Mayor, correct all Restoration work to the extent necessary using the method required by the Municipality Engineer. Weather permitting, said work shall be completed within five (5) calendar days of the receipt of the notice from the Mayor, unless otherwise extended by the Mayor.
(6) If the Permittee fails to restore the Rights of Way in the manner and to the condition required by the Municipality, or fails to satisfactorily and timely complete all repairs required by the Municipality, the Municipality, at its option, may do such work. In that event, the Permittee shall pay to the Municipality, within thirty (30) days of billing, the Restoration cost of restoring the Rights of Way and any other costs incurred by the Municipality. Upon failure to pay, the Municipality 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 Municipality and/ or another Permitee(s), then the Mayor may reasonably apportion the Restoration responsibility among the Municipality, 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 Municipality performs work in the Rights of Way and finds it necessary, as may be allowed by Law, 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 Municipality may pursue all legal and equitable remedies in the event a Provider does not pay or the Municipality may call upon any bond or letter of credit posted by the Permittee and pursue any and all legal or equitable remedies. Each Provider shall be responsible for the cost of repairing any damage to the Facilities of another Provider caused during the Municipality's response to an Emergency occasioned by that Provider's Facilities.
(2) Each Provider shall be responsible for the cost of repairing any Municipality-owned Facilities in the Rights of Way which the Provider or its Facilities damage.
(m) Rights of Way Vacation.
(1) If the Municipality sells or otherwise transfers a Rights of Way which 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 O.R.C. 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, Rules and Regulations, other standards as may be promulgated by the Municipality Engineer.
(o) Inspection. When the Construction under any Permit hereunder is completed, the Permittee shall notify the Municipality.
(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 term and conditions of the Permit and/or Chapter 931.
(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 as provided in Section 931.19(b). An order may be appealed to the Municipality Administrator. The decision of the Municipality Administrator 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 Municipality Administrator that the violation has been corrected. If such proof has not been presented within the required time, the Mayor may revoke the Permit pursuant to Section 931.16(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 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 931.16(d)(1).
(5) Permittee shall not obstruct a Rights of Way so that the natural free and clear passage of water through the gutters or other waterways shall be interfered with. The Municipality Engineer 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 upon 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 Chapter 931, 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 Municipality, 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. 17-2021. Passed 5-4-21.)