(a) Consent Required to Occupy Public Right-of-Way. No Person shall Occupy or Use the Public Right-of-Way without obtaining prior consent from the City to do so.
(b) Initial Consent Presumed.
(1) A Person with Facilities in the Public Right-of-Way on the effective date of this Chapter, and who either
A. Is subject to jurisdiction by the PUCO;
B. Has a valid franchise agreement with the City to provide Cable Services or other Services in the City; and/or
C. Is any other Person who lawfully Occupies the Public Right-of-Way on the effective date of this Chapter shall be presumed to have initial consent of the City to Occupy or use the Public Right-of-Way;
(2) Initial presumed consent for Occupancy or Use of the Public Right-of-Way is limited to the location of the existing Service or Private Service Provider's Facilities.
(3) A public utility subject to the jurisdiction of the PUCO and in compliance with state and federal laws and regulations shall be exempt from a requirement to obtain consent for activities related to those authorized under its tariff issued by the State of Ohio and regulated by PUCO.
(4) A Public Utility operating under its tariff under the State of Ohio and within the services authorized by that tariff shall be exempt from this Section only for that public utility's tariff related activities.
(5) A Small Cell Provider who has obtained a Small Cell Use Permit pursuant to Chapter 939 of the Codified Ordinances shall be exempt from a requirement to obtain consent for the Small Cell Facilities for which the Small Cell Use Permit was granted.
(c) Application for Consent to Occupy or Use Public Right-of-Way.
(1) The following Persons shall apply to the City for consent to Occupy or Use the Public Right-of-Way on a form provided by the City Manager; any Person who:
A. Does not currently have existing Facilities in the City's Public Right-of-Way and desires to Construct new Facilities or Private Facilities in the Public Right-of-Way;
B. Has existing Facilities or Private Facilities in the Public Right-of-Way on the effective date of this Chapter and does not have presumed initial consent under Section 937.02
(b)(1) above; or
C. Has initial presumed consent or City consent to Occupy or Use the Public Right-of-Way for an existing System, Facilities or Private Facilities, but is planning to expand services beyond those provided for in the tariff of a Public Utility issued by the State of Ohio.
D. Is building a new subdivision or project which will offer Public Right-of-Way to the City at some time in the future.
(2) The application shall include the following information with respect to the applicant's planned or existing Facilities in the Public Right-of-Way whether they are subsurface, surface, or aerial facilities as well as plans for any planned Capital Improvements for the following twelve (12) months:
A. The identity, legal status and federal tax identification number of the applicant, including all Affiliates of the applicant that will Use or Occupy the Public Right-of-Way or are in any way responsible for Services provided through the Facilities in the Public Right-of-Way.
B. The name, address and telephone number of the local officer, agent or employee responsible for the accuracy of the application and available at all reasonable times to be notified in case of emergency.
C. A description of the existing or proposed Facilities in the City's Right-of-Way, all in sufficient detail to identify: (i) the location and route of the applicant's or Service Provider's facilities or proposed facilities; (ii) the location of all existing, overhead or underground facilities in the Public Right-of-Way and the route or proposed route of the applicant's or Service Provider's Facilities or Proposed Facilities that is sufficient to show the impact of the applicant's Facilities on other existing Facilities; (iii) the location of all known overhead and underground Utility Easements.
D. A description of the type of transmission medium used, or to be used, by the applicant to provide such Services.
E. Engineering plans, specifications and a network map of the applicant's Facilities located, or to be located, in the City's Public Right-of-Way, all in sufficient detail to identify (where needed for security purposes, these items shall be kept by provider subject to inspection by qualified personnel):
i. The location, route, and depth or height of the applicant's Facilities or proposed Facilities on a "to scale" drawing established using State Plane Coordinates and including all information requested in this section.
ii. The location of all known overhead and underground public utility, utility, telecommunications, cable, water, sanitary sewer, storm water drainage and other existing Facilities in the Public Right-of-Way along the route or proposed route of the applicant's Facilities or proposed Facilities that is sufficient to show the impact of the applicant's Facilities on other existing Facilities.
iii. The location of all known overhead and underground Utility Easements.
F. A preliminary Construction or installation schedule and completion date for all Capital Improvements planned for the twelve (12) month period following the date of application.
G. If the applicant is providing Services in the City:
i. A description of the applicant's access and line extension policies.
ii. The area or areas of the City in which the applicant is currently serving and a schedule for build-out of the entire area addressed by the Permit, if applicable.
H. Evidence that the applicant has complied, or will comply, with indemnification, Insurance, Performance Bond and Construction Bond requirements of this Chapter.
I. Information sufficient to determine that the applicant has received any certificate of authority required by the PUCO to provide Services or Facilities in the City.
(3) The City shall grant or deny, in writing, a Person's application for consent to Occupy or Use the Public Right-of-Way within sixty (60) days of the date on which the Person files the complete application with the City.
A. The City may withhold, deny or delay its consent to a Person's application to Occupy or Use the Public Right-of-Way based on the Person's failure to possess the financial, technical and managerial resources necessary to protect the public health, safety and welfare.
B. If the City denies a Person's application to Occupy or Use the Public Right-of-Way, the City shall provide its reasons for denying the application, and shall provide any information that the Person may reasonably request necessary for the Person to obtain the City's consent to Occupy or Use the Public Right-of-Way.
(4) The City's grant of consent for a Person to Occupy or Use the Public Right-of-Way shall be in the form of a Right-of-Way Occupancy Certificate which shall set forth the specific terms of the City's consent for such Person to Occupy or Use the Public Right-of-Way.
(5) Each Person submitting an application for Consent to Occupy or Use the Public Right-of-Way shall pay a fee equal to the fee necessary to obtain a new building permit in the City of Kent, OH.
(d) Application to Existing Franchise Ordinances and Agreements. For purposes of this Chapter, a franchise ordinance or agreement shall be deemed consent authorizing the Franchisee's Occupancy or Use of the Public Right-of-Way to the extent described in the franchise agreement or ordinance. The Franchisee's use of the Public Right-of-Way beyond that authorized by the franchise agreement or ordinance shall require additional consent for such additional Occupancy or Use. Franchisees shall comply with the Registration provisions and Construction Standards to the extent that the provisions of this Chapter do not directly conflict with the franchise agreement or ordinance. If there is a direct conflict between the franchise agreement or ordinance and the provisions of this Chapter, the franchise agreement or ordinance shall control.
(e) Insurance. As a condition of the consent to Occupy or Use the Public Right-of-Way, a Service Provider or Small Cell Provider must secure and maintain, at a minimum, the following liability insurance policies insuring both the Service Provider or Small Cell Provider and the City, and its elected and appointed officers, officials, agents, employees and representatives as additional insureds:
(1) Comprehensive general liability insurance with limits not less than
A. Five million dollars ($5,000,000) for bodily injury or death to each Person;
B. Five million dollars ($5,000,000) for property damages resulting from any one accident; and
C. Five million dollars ($5,000,000) for all other types of liability.
(2) Automobile liability for owned, non-owned and hired vehicles with a limit of three million dollars ($3,000,000) for each Person and three million dollars ($3,000,000) for each accident.
(3) Worker's compensation within statutory limits and employer's liability insurance with limits of not less than One Million Dollars ($1,000,000).
(4) Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than three million dollars ($3,000,000).
(5) The liability insurance policies required by this Section shall be maintained by the Service Provider or Small Cell Provider throughout the period of time during which the Service Provider is Occupying or Using the Public Right-of-Way, or is engaged in the removal of its Facilities. Each such insurance policy shall contain the following endorsement:
"It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until ninety (90) days after receipt by the City, by registered mail, of a written notice addressed to the City Manager of such intent to cancel or not to renew."
(6) Within sixty (60) days after receipt by the City of said notice, and in no event later than thirty (30) days prior to said cancellation, the Service Provider or Small Cell Provider shall obtain and furnish to the City replacement insurance policies meeting the requirements of this Section.
(7) Upon written application to, and written approval by the City Manager, a Service Provider or Small Cell Provider may be self-insured to provide all of the same coverages as listed in this Section; except that all coverages for Worker's Compensation shall be in compliance with State law. No approval for self-insurance shall be given until the City Manager has made a complete review of the Service Provider's or Small Cell Provider’s financial ability to provide such self-insurance. As part of the review process, the City Manager may require, and the self-insurance applicant shall provide, any and all financial documents necessary to make a valid determination of the applicant's ability to meet the needs of this Chapter.
(8) A Public Utility subject to jurisdiction of the PUCO and operating under its tariff that has established a self-insurance fund that complies with the laws and regulations of the State of Ohio shall satisfy this requirement by simply providing information to the City Manager relating to such self-insurance fund and the appropriate contact point for matters relating to that fund.
(f) General Indemnification. Each applicant for consent to Occupy or Use the Public Right-of-Way, and each annual registration, shall include, to the extent permitted by law, the Service Provider's express undertaking to defend, indemnify and hold the City and its elected and appointed officers, officials, employees, agents, representatives and subcontractors harmless from and against any and all damages, losses and expenses, including reasonable attorney's fees and costs of suit or defense, arising out of, resulting from or alleged to arise out of or result from the negligent, careless or wrongful acts, omissions, failures to act or misconduct of the Service Provider or its Affiliates, officers, employees, agents, contractors or subcontractors in the Construction, Reconstruction, installation, operation, maintenance, repair or removal of its Facilities, and in providing or offering Services over the Facilities or System, whether such acts or omissions are authorized, allowed or prohibited by this Chapter.
(g) Performance Bond or Security Fund. As a condition of consent to Occupy or Use the Public Right-of-Way, and to ensure the full and complete compliance with, and performance under, this Chapter, including any costs, expenses, damages or loss the City pays or incurs because of any failure attributable to the Service Provider or Small Cell Provider to comply with the codes, ordinances, rules, regulations or permits of the City, each Service Provider or Small Cell Provider shall, in the amount of Fifty thousand dollars ($50,000) or such lesser amount as the City Manager may determine to be necessary (i) establish a permanent security fund with the City Manager depositing the required amount in cash, an unconditional letter of credit, or other instrument acceptable to the City, or (ii) furnish and file with the City a Performance Bond running to the City in the required amount from a company licensed to do business in the State of Ohio; which Performance Bond or security fund shall be maintained at the sole expense of the Service Provider or Small Cell Provider so long as any of the Service Provider's Facilities or Small Cell Provider’s Small Cell Facilities are located within the Public Right-of-Way, Easements or other City owned properties, of the City.
(1) Before claims are made against the Performance Bond or any sums are withdrawn from the security fund, the City shall give written notice to the Service Provider or Small Cell Provider:
A. Describing the act, default or failure to be remedied, or the damages, cost or expenses which the City has incurred by reason of the Service Provider's or Small Cell Provider’s act or default;
B. Providing a reasonable opportunity for the Service Provider or Small Cell Provider to first remedy the existing or ongoing default or failure, if applicable;
C. Providing a reasonable opportunity for the Service Provider or Small Cell Provider to pay any monies due the City before the City makes a claim against the Performance Bond or withdraws the amount from the security fund, if applicable;
D. That the Service Provider or Small Cell Provider will be given an opportunity to review the act, default or failure described in the notice from the City Manager.
(2) Service Providers or Small Cell Providers shall maintain the full value of the Performance Bond regardless of claims against the Performance Bond made by, or paid to, the City; or shall replenish the security fund within fourteen (14) days after written notice from the City that there is a deficiency in the amount of the fund, whichever is applicable.
(3) A Public Utility operating under a tariff issued by the State of Ohio and regulated by the PUCO and in compliance with PUCO regulations concerning insurance, shall be exempt from any provision regarding a performance bond or security fund for all tariff related activities.
(Ord. 2018-114. Passed 10-17-18.)