(a) Public Right-of-Way Route. Consent granted to a Service Provider to Occupy or Use the Public Right-of-Way under Section 937.02
shall be limited to a grant to Occupy or Use the specific Public Right-of-Way and defined portions thereof.
(b) Nonexclusive Consent to Occupy the Public Right-of-Way. No consent granted under Section 937.02 shall confer any exclusive right, privilege, license or franchise to Occupy or Use the Public Right-of-Way of the City for delivery of Services or any other purposes.
(c) Rights Permitted. No consent granted under Section 937.02 shall convey any right, title or interest in the Public Right-of-Way, but shall be deemed a consent only to Occupy or Use the Public Right-of-Way for the limited purposes granted by the consent. Further, no consent shall be construed as any warranty of title. This Section shall not affect the right to occupy the Public Right-of-Way granted to Public Utilities in connection with the tariff issued by the State of Ohio and regulated by the PUCO, said consent to occupy the Public Right-of-Way having been granted to such Public Utility by the State of Ohio, subject to only local regulation of matters of local concern.
(d) Nondiscrimination. A Public Service Provider providing Service to the public in the City shall make its Services available to any customer within the designated service area who shall request such Service, without discrimination as to the terms, conditions, rates or charges for the Public Service Provider's Services; provided, however, that nothing in this Section 937.05
shall prohibit a Public Service Provider from making any reasonable classifications among differently situated customers.
(e) Maintenance of Facilities. Each Service Provider shall maintain its Facilities in good and safe condition and in a manner that complies with all applicable federal, State and local requirements.
(f) Safety Procedures. A Service Provider or other Person acting on its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as necessary and in accordance with applicable State and local requirements. A Maintenance of Traffic Plan needs to be submitted, and approved by the City, prior to commencing work.
(g) Interference with the Public Right-of-Ways. No Service Provider may locate or maintain its Facilities so as to unreasonably interfere with the use of the Public Right-of-Way by the City, by the general public or by other Persons authorized to use or be present in or upon the Public Right-of-Way. All such Facilities shall be moved by the Service Provider, temporarily or permanently, as determined by the City Manager.
(h) Damage to Public and Private Property. No Service Provider nor any Person acting on the Service Provider's behalf shall take any action or permit any action to be done which may impair or damage any City Property, Public Right-of-Way, Other Ways or other public or private property located in, on or adjacent thereto.
(i) Restoration of Public Right-of-Way, Other Ways and City Property.
(1) When a Service Provider, or any Person acting on its behalf, does any work in or affecting any Public Right-of-Way, Other Ways or City Property, it shall, after the work is completed and at its own expense, promptly remove any obstruction therefrom and restore such ways or property, within sixty (60) days, to as good condition as existed before the work was undertaken, unless otherwise directed by the City.
(2) If weather or other conditions do not permit the complete restoration required by this Section, the Service Provider shall temporarily restore the affected ways or property. Such temporary restoration shall be at the Service Provider's sole expense and the Service Provider shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.
(j) Duty to Provide Information.
(1) Within ten (10) days of a written request from the City Manager each Service Provider or Small Cell Provider shall furnish the City with documentation sufficient to show that the Service Provider has complied with all requirements of this Chapter.
(2) In addition, within ten (10) days of a written request from the City Manager, each Service Provider shall make available for inspection by the City at reasonable times all books, records, maps and other documents, maintained by the Service Provider with respect to its Facilities in the Public Right-of-Way.
(k) Leased Capacity. A Service Provider shall have the right, without prior City approval, to offer or provide capacity or bandwidth to its customers, provided:
(1) The Service Provider shall furnish the City with a copy of any such lease or agreement.
(2) The customer or lessee has complied, to the extent applicable, with the requirements of this Chapter.
(3) The service does not interfere with the City of Kent's public safety communications equipment and transmissions, and complies with all Federal Communication Commission regulations.
(l) Assignments or Transfers of Consent. Consent to Occupy or Use the Public Right-of-Way may be, except as to Public Utilities operating under a tariff issued by the State of Ohio and regulated by the PUCO, directly or indirectly, transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the Service Provider, by operation of law or otherwise, without consent of the City, so long as:
(1) The City is notified or the proposed transfer on or before the date of transfer; and
(2) The transferee shall fully comply with this Chapter within sixty (60) days of the transfer, including, but not limited to:
B. Any other information reasonably required by the City Manager.
(m) Transactions Affecting Control of Consent. Except as to any Public Utilities operating under a tariff by the State of Ohio and regulated by the PUCO, any transactions that singularly or collectively result in a change of twenty-five percent (25%) or more of the ownership or ultimate working control of a Service Provider, of the ownership or working control of the Service Provider's Facility, or of control of the capacity or bandwidth of the Service Provider's System, Facilities or substantial parts thereof, shall be considered an assignment or transfer pursuant to Section 937.04(l) hereof. Transactions between Affiliated entities are not exempt from Section 937.04(l).
(n) Revocation of Consent. Consent granted by the City to Occupy or Use Public Right-of-Way of the City may be revoked, except as to Public Utilities operating under a tariff by the State of Ohio and regulated by the PUCO, for any one of the following reasons:
(1) Construction, Reconstruction, installation, location, operation or Excavation at an unauthorized location.
(2) Construction, Reconstruction, installation, location, operation or Excavation in violation of City safety and/or Construction requirements.
(3) Material misrepresentation or lack of candor by or on behalf of a Service Provider in any Permit application or registration required by the City.
(4) Abandonment of Facilities in the Public Right-of-Way.
(5) Failure to relocate or remove Facilities or failure to restore the Public Right-of-Way, as required by this Chapter.
(6) Failure to pay fees, costs, taxes or compensation when and as due the City.
(7) Insolvency or bankruptcy of the Service Provider.
(8) Violation of material provisions of this Chapter.
(o) Notice and Duty to Cure. In the event that the City Manager believes that grounds exist for revocation of consent to Occupy or Use the Public Right-of-Way or Construction Permit, he shall give the Service Provider written notice of the apparent violation or noncompliance, and providing the Service Provider a reasonable period of time not exceeding thirty (30) days to furnish evidence:
(1) That corrective action has been, or its being actively and expeditiously pursued, to remedy the violation or noncompliance;
(2) That rebuts the alleged violation or noncompliance; and/or
(3) That it would be in the public interest to impose some penalty or sanction less than revocation.
(p) In addition, general regulations that protect the health, safety and welfare of the residents and visitors of Kent, apply to work performed in the City's Right-of-Way, and to any structures and poles located within the City's Right-of-Way.
(Ord. 2018-114. Passed 10-17-18.)