904.01 Scope of chapters; definitions.
904.02 Consent to occupy or use the public right-of-way.
904.03 Initial and annual registration of service providers.
904.04 General public right-of-way use regulations.
904.05 Location, relocation and removal of facilities.
904.06 Notice of work, routine maintenance and emergency work.
904.07 Construction permits and standards.
904.08 Recovery of City costs in managing the public right-of-way.
904.09 Cable television franchise.
904.10 Private facilities in the public right-of-way.
904.11 Miscellaneous provisions.
904.99 Penalties and other remedies.
(a) The purpose and intent of this chapter is to:
(1) Manage Occupancy or Use of the Public Right-of-Way;
(2) Encourage the provision of advanced, competitive utility and telecommunications services, including wireless communications services, on the widest possible basis to the businesses, institutions and residents of the City;
(3) Permit and manage reasonable access to the Public Right-of-Way of the City for utility and telecommunications service purposes on a competitively neutral basis;
(4) Conserve the limited physical capacity of the Public Right-of-Way held in trust by the City for the benefit of the public;
(5) Assure that the City receives cost recovery for the Occupancy and Use of the Public Right-of-Way in accordance with law;
(6) Assure that all Service Providers with Facilities in the Public Right-of-Way comply with the ordinances, rules and regulations of the City;
(7) Assure that the City fairly and responsibly protects the public health, safety and welfare; and
(8) Enable the City to discharge its public trust obligations consistent with rapidly evolving federal and State regulatory policies, industry competition and technological development.
(b) For the purpose of this chapter, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used shall indicate otherwise:
(1) Affiliate means a Person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another Person.
(2) Cable Operator means a Person providing or offering to provide Cable Service within the City, and may be used interchangeably with Video Service Provider.
(3) Cable Service means "cable service" as defined in the Cable Communications Policy Act of 1984, codified at 47 U.S.C. §532, et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996, as each might be further amended.
(4) Cable System means "cable system" as defined in the Cable Communications Policy Act of 1984, codified at 47 U.S.C. §532, et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996, as each might be further amended.
(5) Capital Improvement means an addition made to enhance the value or extend the useful life of an existing System or Facilities, including Construction, Reconstruction, installation, rehabilitation, renovation, improvement, enlargement and extension of Facilities, but not including ordinary or Routine Maintenance.
(6) Construct, Constructing, Construction, etc. means installing, repairing, replacing or removing any Facility, regardless of the methods employed, including Excavation (including hydro-excavating).
(8) Emergency means an unforeseen occurrence or condition calling for immediate action due to health, safety, or the protection of property.
(9) Excavate, Excavating or Excavation means cutting, sawing, breaking, drilling into, boring under, or otherwise altering any Public Street or sidewalk pavement, or digging, drilling into or boring un-der any unpaved portion of the Public Right-of-Way, including any other work or activity which disturbs the existing surface or subsurface structure, composition, or soil compaction.
(10) Excess Capacity means the volume or capacity in any existing or future duct, conduit, manhole, or other Facility in the Public Right-of-Way that is or will be available for use for additional Facilities.
(11) Facilities or Facility means the plant, equipment and property, including but not limited to, cables, fibers, wires, pipes, conduits, ducts, pedestals, antennae, electronics, poles, pipes, mains, plant, equipment and other appurtenances located under, on or above the surface of the ground in the Public Right-of-Way of the City and used or to be used to operate a System to transmit, receive, distribute, provide or offer a Service, but also including Private Systems.
(12) Lane Obstruction means the blocking or diverting of vehicular or pedestrian traffic from a street or sidewalk for the purpose of Constructing, Excavating, installing, repairing, maintaining, operating, replacing or removing any Facility, including (i) the lifting or removing of manhole or manhole covers, and (ii) the opening or accessing of at-grade or pole-mounted cabinets, pedestals, transformers, power supplies, amplifiers, splice enclosures, traps or other Facilities.
(13) New Service Orders means the connection from the Public Service Provider's existing Facilities on private property for the purpose of providing a new Service to a customer in the City.
(14) Occupancy, Occupy or Use means, with respect to the Public Right-of-Way, to place a tangible thing in the Public Right-of-Way for any purpose, including, but not limited to, Constructing, repairing, positioning, maintaining or operating lines, poles, pipes, conduits, ducts, equipment or other structures, appurtenances or Facilities necessary to operate a System for the delivery of public utility like Services, including Service provided by a Cable Operator, or other services over Private Facilities in the Public Right-of-Way.
(15) ODOT means the Ohio Department of Transportation.
(16) Other Ways means the highways, streets, alleys, Utility Easements or other rights-of-way within the City, but under the jurisdiction and control of a governmental entity other than the City.
(17) Overhead Facilities means utility poles and wires, cables and other such equipment running between and on such poles, including the underground supports and foundations for such Facilities.
(18) Person means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies, trusts and individuals and includes their lessors, trustees and receivers.
(19) Private Facility means the plant, equipment and property, including but not limited to, cables, fiber optics, wires, pipes, conduits, ducts, pedestals, antennae, electronics and other appurtenances or Facilities used or to be used to operate a system to transmit, receive, distribute or provide telecommunications or other services between or among private buildings or facilities where there is no offer of service to the public.
(20) Private Service Provider means any Person who, pursuant to the consent to Occupy or Use the Public Right-of-Way pursuant to Section 904.02 of this chapter, directly or indirectly owns, controls, operates or manages Private Facilities within the City's Public Right-of-Way used or to be used for the purpose of operating a System to transmit, receive, distribute or provide telecommunications or other services between or among private buildings or facilities where there is no offer of Service to the public.
(21) Public Easement means any easement under the jurisdiction and control of the City and acquired, established, dedicated or devoted for public purposes, including utility purposes.
(22) Public Right-of-Way or Right-of-Way means the surface of, and the space within, through, on, across, above or below, any Public Street, public road, public highway, public freeway, public lane, public path, public alley, public court, public sidewalk, public boulevard, public parkway, public drive, Public Easement and any other land dedicated or otherwise designated for a compatible public use, which is owned or controlled by the City but excludes a private easement.
(23) Public Service Provider means any Person that, pursuant to the consent to Occupy or Use the Public Right-of-Way pursuant to Section 904.02 of this chapter, directly or indirectly owns, controls, operates or manages Facilities within the City's Public Right-of-Way, used or to be used for the purpose of operating a System offering Service to the public within the City or outside of the City's boundaries.
(24) Public Street means the paved and unpaved portion of any street, road, boulevard, drives, highway, freeway, parkway, lane court, alley or other Public Right-of-Way in which the City has an interest in law or equity and which has been acquired, established, dedicated or devoted to street purposes.
(25) Public Way Fee means a fee levied to recover the costs incurred by the City and associated with the occupancy or use of a Public Right-of-Way.
(26) PUCO or Public Utilities Commission of Ohio means the State Administrative agency, or lawful successor, authorized to regulate and oversee certain Public or Private Service Providers and Services in the State of Ohio.
(27) Reconstruct, Reconstruction, etc. means substantial physical change to or Capital Improvement of all or a portion of an existing System or Facilities including a change in location, or additional locations, of Facilities along the same Right-of-Way involving Construction in Public Streets, Utility Easements, or Public Right-of-Way.
(28) Routine Maintenance means repair, upkeep, replacement or restoration of existing Facilities located in the Public Right-of-Way that requires no more than three (3) working days to complete, is not an Emergency and does not include Excavation of the Public Right-of-Way.
(29) Service means the offering of water, sewer, electric, gas, telephone, telecommunications, cable television, information or other utility like service directly to the public, or to such classes of users as to be effectively available to the public, regardless of the Facilities used.
(30) Service Provider means any Public Service Provider or Private Service Provider.
(31) State means the State of Ohio.
(32) Surplus Space means that portion of the Usable Space on a utility pole which has the necessary clearance from other Public or Private Service Providers using the pole, as required by the orders and regulations of PUCO and other applicable State and local orders and regulations, to allow its use by an additional Public or Private Service Provider for a pole attachment.
(33) System means a network of Facilities for the transmission or distribution of a Service.
(34) Trenchless Technology means the use of directional boring, horizontal drilling and micro-tunneling and other techniques in the Construction of underground portions of Facilities that result in the least amount of disruption and damage to the Public Right-of-Way as possible.
(35) Underground Facilities means that portion of a System located under the surface of the ground, excluding the underground foundations or supports for Overhead Facilities.
(36) Usable Space means the total distance between the top of a utility pole and the lowest possible attachment point that provides the minimum allowable vertical clearance as specified in the orders and regulations of the PUCO.
(37) Utility Easement means any easement owned by a Service Provider and acquired, established, dedicated or devoted for the purpose of providing Service to the public
(38) City means the City of Lakewood, Ohio.
(39) Mayor means the Mayor of the City, or his or her designee.
(40) City Property means and includes all real property owned by the City, other than Public Streets and Public Easements as those terms are defined herein, and all property held in a proprietary capacity by the City, which are not subject to Public Right-of-Way consent and Permit requirements of this chapter.
(41) Director means the Director of Public Works of the City, or his or her designee.
(Ord. 59-16. Passed 4-3-17.)
(Ord. 59-16. Passed 4-3-17.)
(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 existing Facilities in the Public Right-of-Way on the effective date of this chapter shall be presumed to have initial consent of the City for its existing Facilities to Occupy or Use the Public Right-of-Way, if such Person:
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;
C. Has obtained a video service authorization from the State pursuant to Section 1332.24 of the Ohio Revised Code; or
D. Is any other Person whose existing Facilities lawfully Occupy the Public Right-of-Way on the effective date of this chapter.
(2) Presumed initial consent for Occupancy or Use of the Public Right-of-Way is limited to the Service or Private Service Provider's existing facilities.
(4) A Person with presumed initial consent is not relieved from compliance with this chapter with respect to the ongoing Occupancy or Use of the Public Right-of-Way including, but not limited to, the Insurance, Indemnity, Performance Bond and Registration requirements pursuant to Sections 904.02(e), (f) and (g) and 904.03(a) and (b) of this chapter.
(c) Application for Consent to Occupy or Use Public Right-of-Way.
(1) Any Person who:
A. Has an existing System, 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 904.02(b)(1) above; or
B. Does not currently have an existing System or Facilities in the City's Public Right-of-Way and desires to Construct a System, Facilities or Private Facilities in the Public Right-of-Way; or
shall apply to the City for consent to Occupy or Use the Public Right-of-Way on a form provided by the City Building Department.
(2) The application for Consent to Occupy or Use the Public Right-of-Way or initial registration pursuant to Section 904.03(a) for Service Providers with presumed initial consent to Occupy or Use the Public Right-of-Way shall include the following information with respect to the applicant's or Service Provider's planned or existing System or Facilities in the Public Right-of-Way as well as plans for any planned Capital Improvements or Reconstruction 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 or Service Provider that will Use or Occupy the Public Right-of-Way or are in any way responsible for Services provided over the System 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 or initial registration and contact information by which the applicant or Service Provider is to be notified in case of emergency.
C. A general description of the Services provided or to be provided by the applicant or Service Provider over its System or Facilities. Where Services are or will be provided by a nonaffiliated provider, the applicant or Service Provider shall identify that provider.
D. A description of the type of transmission medium used, or to be used, by the applicant or Service Provider to operate a System.
E. A description of the existing or proposed Facilities in the City's Public Right-of-Way.
1. The description shall be in sufficient detail to identify:
a. The location and route of the applicant's or Service Provider's Facilities or proposed Facilities;
b. The location of all known existing Overhead and Un-derground Facilities in the Public Right-of-Way along the route or proposed route of the applicant's or Service Provider's Facilities or proposed Facilities that is sufficient for the City to evaluate the impact of the applicant's Facilities in the context of other existing Facilities; and
c. The location of all known overhead and underground Utility Easements.
2. A Service Provider may designate any portion or portions of the information (including maps, if any) provided under this subsection (b)(2)(e) as proprietary or a trade secret so as to remain confidential. In this event, the City shall seek to maintain the confidentiality of such information; provided, however, that such information is subject to applicable public records laws and exceptions thereto. The City shall provide a Service Provider with written notice of any proposed inspection or disclosure prompted by a public records request related to the Service Provider's documents or information the Service Provider has designated as proprietary or trade secret. The Service Provider shall have three (3) business days from the written notice to object to any public records disclosure and to agree in writing to defend and indemnify the City with respect to any litigation under the Ohio Public Records Act to compel disclosure and all costs thereof.
F. A preliminary Construction schedule and completion date for all Capital Improvements, Reconstruction or New System Construction planned for the twelve (12) month period following the date of application; provided, however, that the Service Provider may elect that such information be treated pursuant to Section 904.02(c)(2)E.2. if it considers the information proprietary or trade secret and the information is so designated.
G. If the applicant or Service Provider is providing Services in the City:
1. A description of the access and line extension policies or a copy of their PUCO tariff.
2. The area or areas of the City in which the applicant or Service Provider is currently providing Service and a schedule for buildout, if applicable.
H. Evidence that the applicant or Service Provider 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 or Service Provider has received any certificate of authority required by the PUCO to operate a System and provide Services in the City.
J. Such other and further information as may reasonably be requested by the Director.
(3) The Director 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 filed the 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 or managerial resources necessary to protect the public health, safety and welfare, or for other reasons based on the health, safety and welfare of the City and in accordance with Ohio law.
B. If the City denies a Person's application to Occupy or Use the Public Right-of-Way, the City shall provide in writing its reasons for denying the application, and shall provide any information that the Person may reasonably request as 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 reimburse the City for its admin-istrative costs related to the application, which reimbursement may be in the form of an application fee or as provided in Section 904.08, as may be determined by the City.
(d) Application to Existing Franchise Ordinances and Agreements. For purposes of this chapter, a franchise ordinance, franchise agreement or Video Service Authorization (VSA) 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, ordinance or VSA. The franchisee's or Cable Operator's use of the Public Right-of-Way beyond that authorized by the franchise agreement or VSA shall require additional consent for such additional Occupancy or Use. Franchisees shall comply with the Registration provisions and Construction Stand-ards to the extent that the provisions of this chapter do not directly conflict with the franchise agreement or VSA. If there is a direct conflict between the franchise agreement, ordinance, or VSA, and the provisions of this chapter, the franchise agreement or ordinance or VSA, all control.
(e) Service Provider Insurance. As a condition of the consent to Occupy or Use the Public Right-of-Way, a Service Provider must secure and maintain, at a minimum, the following liability insurance policies insuring both the Service Provider and the City, and its elected and appointed officers, officials, agents, employees, contractors, 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 damage 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 lia-bility 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 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, or a substantially similar endorsement approved by the City:
"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 Mayor 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 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 Mayor, a Service Provider may be self-insured to provide all of the same coverages as listed in this section; except that all coverages for Workers' Compensation shall be in compliance with State law. As part of the review process, the City may require, and the self-insurance applicant shall provide, sufficient financial information or documents necessary to make a determination that the applicant has the ability to meet the needs and requirements of this chapter.
(f) General Indemnification. Each application 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 third party claims (including all damages, losses and expenses, 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, representatives, contractors or sub-contractors in the Construction, Reconstruction, installation, operation, maintenance, repair or removal of its System or 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. A Service Provider, however, will have no obligation to defend, indemnify or hold the City and its elected and appointed officials, officers, employees, agents and representatives harmless from damages or claims arising solely from the City's or their own negligence.
(g) Performance Bond. As a condition of consent to Occupy or Use the Public Right-of-Way and to ensure 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 to comply with the codes, ordinances, rules, regulations or permits of the City, each Service Provider shall, in the amount of fifty thousand dollars ($50,000) or such lesser amount as the Director may determine to be necessary (i) provide 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 letter of credit or other instrument shall be maintained at the sole expense of the Service Provider so long as any of the Service Provider's Facilities are located within the Public Right-of-Way of the City. The requirements of this Section 904.02(g) shall not apply to a Service Provider that: (1) has presumed initial consent to Occupy or Use the Public Right-of-Way under Section 904.02(b); and (2) has not been the subject of litigation or other en-forcement action by the City arising from the Service Provider's activities in the Public Right-of-Way within the five (5) years prior to initial or annual registration hereunder.
(1) Before claims are made against the Performance Bond or letter of credit or other instrument, the City shall give written notice to the Service 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 act or default;
B. Providing a reasonable opportunity for the Service Provider to first remedy the existing or ongoing default or failure, if applicable;
C. Providing a reasonable opportunity for the Service Provider to pay any monies due the City before the City makes a claim against the Performance Bond or letter of credit or other instrument;
D. That the Service Provider will be given an opportunity to review the act, default or failure described in the notice with the Director.
(2) Service Providers shall maintain the full value of the Performance Bond or letter of credit or other instrument regardless of claims against the Performance Bond or letter of credit or other instrument made by, or paid to, the City.
(Ord. 59-16. Passed 4-3-17.)
(Ord. 59-16. Passed 4-3-17.)
(a) Initial Registration. Any Service Provider with presumed initial consent to Occupy or Use the Public Rights-of-Way as provided in Section 904.02(b) shall file an initial registration with the City within ninety (90) days of the effective date of this chapter, on a form provided by the City, which shall include the information in Section 904.02(c)(2) of this chapter.
(b) Annual Registration Required. All Service Providers with consent to Occupy or Use the Public Right-of-Way as provided in Section 904.02(a) shall register with the City each calendar year between January 1 and January 31 on a form provided by the City. The form will allow the Service Provider to indicate when there is no change in the information required, and when such indication is submitted, previously provided information will be considered current and will be relied upon. Service Providers who file an Initial Registration after September 30 of any year need not file an Annual Registration for next calendar year.
(1) Compile, update and supplement the City's database so that the City has accurate and current information concerning the Service Providers that own or operate Facilities, or provide Services, in the City's Public Right-of-Way;
(2) Assist the City in monitoring the usage of the Public Right-of-Way in order to ensure that the public receives the maximum possible benefit from that use and the use is consistent with the best management and care of the Public Right-of-Way;
(3) Assist the City in the collection and enforcement of any municipal taxes, franchise fees, compliance fees or charges that may be due the City; and
(4) Assist the City in monitoring compliance with local, State and federal laws.
(d) Information Required for Registration. Registration forms will be provided by the City and shall require the following information:
(1) Any material changes to the information the Service Provider provided to the City in the application for consent to Occupy or Use the Public Right-of-Way including, but not limited to:
A. The identity, legal status, and federal tax identification number of the Service Provider, including any Affiliates.
B. The name, address and telephone number of the local officer, agent or employee responsible for the accuracy of the Service Provider's registration statement and available at all reasonable times to be notified in case of emergency.
(2) Evidence that the Service Provider is in compliance with the Insurance, Indemnity and Performance Bond requirements pursuant to Sections 904.02(e), (f) and (g) of this chapter.
(3) Information regarding, and a preliminary Construction schedule and completion date for any Capital Improvements and Reconstruction the Service Provider plans in the City's Public Right-of-Way for the twelve (12) months following the date of registration, including all of the following:
A. A description clearly showing the location of all the proposed Capital Improvements, including horizontal and vertical information; Facility type, size, depth, and capacity; or such other information the Director determines is necessary. In no event shall the description of the proposed Capital Improvement be less than by City quadrant or street name and Facility type. The Service Provider shall update all required information as soon as it becomes available.
B. If the Service Provider is Constructing a new System or Reconstructing all or a portion of its existing System, general description of the proposed System and the Facilities utilized to provide the Service that the Service Provider intends to offer or provide over the System within the City. Where a Service will be provided by a nonaffiliated provider, the Service Provider shall identify that provider.
C. Information sufficient to determine that the Service Provider has applied for and received any certificate of authority required by PUCO to provide Services or operate a System in the City.
D. Information sufficient to determine that the Service Provider has applied for and received any construction permit, operating license, certification, or other approvals required by the Federal Communications Commission to provide telecommunications or Cable Services over a System in the City.
(4) Such other information as the Director may reasonably require.
(e) Service Provider's Facilities Maps.
(1) The City shall have the right to access and review all the Service Provider's maps or as-built plans showing the location of its Facilities in the City's Rights-of-Way, upon ten (10) days' notice to the Service Provider.
(2) Upon written request by the Director, each Service Provider shall work in good faith with the City to provide, in a reasonable time and manner, maps or as-built plans in a format compatible with the City's current or future mapping system or a format mutually agreed upon by the City and the Service Provider.
(3) The Service Provider may designate any portion or portions of the maps or as-built plans provided under this subsection (e) as proprietary or a trade secret so as to remain confidential. In this event, the City shall seek to maintain the confidentiality of such maps or as-built plans; provided, however, that such information is subject to applicable public records laws and exceptions thereto. The City shall provide a Service Provider with written notice of any proposed inspection or disclosure prompted by a public records request related to the Service Provider's maps or as-built plans the Service Provider has designated as proprietary or a trade secret. The Service Provider shall have three (3) business days from the written notice to object to any public records disclosure and to agree in writing to defend and indemnify the City with respect to any litigation under the Ohio Public Records Act to compel disclo-sure and all costs thereof.
(f) Registration to be Kept Current. In addition to the annual registration requirement, each Service Provider shall keep all required registration information current at all times and shall provide the City with notice of changes to the required information within fifteen (15) days following the date on which the Service Provider has notice of the need for such change.
(g) Registration Fee. Each Service Provider shall reimburse the City for its administrative costs related to maintaining annual registration and such reimbursement may be in the form of a registration fee or as provided in Section 904.08, as may be determined by the City.
(Ord. 56-19. Passed 4-3-17.)
(a) Rights Conveyed. Consent granted to or initially presumed of a Service Provider to Occupy or Use the Right-of-Way under Section 904.02:
(1) Shall be limited to a grant to Occupy or Use the specific Right-of-Way and defined portions thereof including the specific System or Facilities and location along the Right-of-Way;
(2) Shall not confer any exclusive right, privilege, license or franchise to Occupy or Use the Right-of-Way of the City to operate a System for delivery of Services or any other purposes; and
(3) Shall not convey any right, title or interest in the Right-of-Way, but shall be deemed consent only to Occupy or Use the Right-of-Way for the limited purposes granted by the consent. Further, no consent shall be construed as any warranty of title.
(b) 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 904.04(b) shall prohibit a Public Service Provider from making any reasonable classifications among differently-situated customers.
(c) Maintenance of Facilities, Landscaping and Other Aesthetic Requirements. Each Service Provider shall maintain its System or Facilities in good and safe condition and in a manner that complies with all applicable federal, State and local requirements. A Service Provider with a Construction Permit that includes a landscaping, screening or other aesthetic requirement in connection with the placement of any structure or item above the ground in the Right-of-Way, shall maintain the landscaping, screening or other aesthetic requirement, on a continuing basis, in the manner specified in the Construction Permit or other manner as approved in writing by the Director.
(d) 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 for the safety of all members of the general public and to prevent injury or damage to any Person, vehicle or property by reason of such work in or affecting such Public Right-of-Way or property.
(e) Interference with the Public Rights-of-Way. 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 Director.
(f) 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.
(g) 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 obstructions therefrom and restore such ways or property, within ten (10) to thirty (30) days at the Director's discretion, to as good a 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 as directed by the Director. 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.
(h) Duty to Provide Information.
(1) Within ten (10) days of a written request from the Director each Service 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 Director, 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.
(i) Leased Capacity. A Service Provider shall have the right, without prior City approval, to lease capacity or bandwidth to an unaffiliated Service Provider, provided that when a lessee has physical access to the leased Facilities:
(1) The Service Provider shall notify the City of the lease agreement within thirty (30) days of such lease agreement; and
(2) The lessee has complied, to the extent applicable, with the requirements of this chapter.
(j) Assignments or Transfers of Consent. Consent to Occupy or Use the Public Right-of-Way may be, 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 of the proposed transfer on or before the date of transfer; and
(2) The transferee fully complies with this chapter within sixty (60) days of the transfer, including, but not limited to:
B. Any other information reasonably required by the City.
(k) Transactions Affecting Control of Consent. 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 904.04(k) hereof. Transactions between Affiliated entities are not exempt from Section 904.04(k).
(l) Revocation of Consent. Consent granted by the City to Occupy or Use the Public Right-of-Way of the City may be revoked for any one of the following reasons unless revocation is clearly prohibited by state or federal law:
(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 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) Failure to relocate or remove Facilities, or failure to restore the Public Right-of-Way, as required by this chapter.
(5) Failure to pay fees, costs, taxes or compensation when and as due the City.
(6) Insolvency or bankruptcy of the Service Provider.
(7) Violation of material provisions of this chapter.
(m) Notice and Duty to Cure. In the event that the Director believes that grounds exist for revocation of consent to Occupy or Use the Public Right-of-Way, he shall give the Service Provider written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the 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 is being actively and expeditiously pursued, to remedy the violation or noncompliance;
(2) That rebuts the alleged violation or noncompliance; or
(3) That it would be in the public interest to impose some penalty or sanction less than revocation.
(n) Identification of Facilities. When the City determines that identification of Facilities is necessary to begin planning for Right-of-Way improvement projects, Service Providers, upon receipt of notice by the City, are required to use reasonable efforts to field identify their Facilities. In identifying Facilities, customary industry standards must be adhered to and markings must identify the Service Provider responsible for the Facilities. All markings must also be clearly readable from the ground and include the Service Provider's name, logo and identification numbering or tracking. Advertising is not permitted and all marking colors shall be those approved by the City.
(o) Waiver of Requirements. It is within the Director's reasonable discretion to waive a portion or portions of this chapter where such requirements, in the Director's judgment, are not necessary or appropriate to protect the City's interests and the purposes and intent of this chapter.
(p) New or Additional Facilities When the Right-of-Way is Full. The City shall have the power to prohibit or limit the placement of new or additional Facilities within the Public Right-of-Way if the Right-of-Way is full. In making such decisions, the City shall strive to the extent possible to accommodate all existing and potential users of the Right-of-Way, but shall be guided primarily by considerations of the public health, safety and welfare, the condition of the Right-of-Way, the time of year with respect to essential Utilities, the protection of existing Facilities in the Right-of-Way, future City and County plans, if applicable, for public improvements, development projects which have been determined to be in the public interest and nondiscriminatory and competitively neutral treatment among Service Providers.
(Ord. 59-16. Passed 4-3-17.)
(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 Capacity 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 City 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 City 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 Director. If a Provider is denied a requested waiver from the above requirements, the Provider may appeal the denial of the Director to the Mayor as set forth in Section 904.99(c). Notwithstanding the above, no Service Provider shall be required to bear the expense of relocation or undergrounding of any Facilities if such requirement would be prohibited by law.
(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 Director.
(6) The City reserves the right to require a Service Provider to provide Excess Capacity in the Public Right-of-Way at the time of Construction, Reconstruction, installation, location or relocation of Facilities.
(b) Excess Capacity. To reduce Excavation in the Public Right-of-Way, it is the City's goal to encourage Service Providers to share occupancy of underground conduit as well as to construct, whenever possible, excess conduit capacity 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 City reasonably determines such construction is in an area in which other Service Providers would likely construct Facilities in the future, the City may require the Service Provider to construct the conduit in the Public Right-of-Way with Excess Capacity in the Public Right-of-Way, provided the Service Provider shall be reimbursed for the use of the Excess Capacity by another Service Provider, and subject to good engineering practices approved by the Director. The Service Provider may charge a reasonable market lease rate for occupancy of the additional conduit space as reimbursement.
(c) City Owned Conduit. If the City owns or leases conduit in the path of a Service Provider's proposed Facilities, and provided it is technologically feasible and not economically impracticable for the Service Provider's Facilities to Occupy the conduit owned or leased by the City, the Service Provider shall be required to Occupy the conduit owned or leased by the City in order to reduce the necessity to Excavate the Public Right-of-Way. The Service Provider shall pay to the City a Public Way Fee that is assessed pursuant to Section 904.08 for such Occupancy.
(d) Relocation or Removal of Facilities. Within thirty (30) days following written notice from the City, 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, or commence such work if the City determines completion within 30 days is unnecessary or overly burdensome, whenever the City shall have determined that such removal, relocation, change or alteration is reasonably necessary for:
(1) The Construction, Reconstruction, repair, maintenance or installation of any City or other public improvement, in, upon, or near the Public Right-of-Way;
(2) The operations of the City 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 City, 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 City, 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 City or shall arrange to sell the System, Facilities or appurtenances to the City, unless removal or sale is prohibited by state or federal law. 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 City;
(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 City'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 904.03 of this chapter.
(f) Failure to remove or relocate Facilities. If the Service Provider fails to remove or relocate any of its Facilities within the thirty (30) days period set forth in subsection (e) of this Section 904.05, or receive an extension of time from the Director for commencement and completion of removal or relocation, then, to the extent not inconsistent with applicable law, the City 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 City 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 City at Service Provider's cost and expense, by another Person; however, the City shall have no liability for any damage caused by such action and the Service Provider shall be liable to the City for all reasonable costs incurred by the City 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 City designated by the City for removal and not timely removed by the Service Provider shall belong to and become the property of the City, without payment to the Service Provider, and the Service Provider shall execute and deliver such documents, as the City shall request, in form and substance acceptable to the City, to evidence such ownership by the City.
(g) Emergency Removal or Relocation of Facilities. The City 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 City, as the City 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 City's actions would cause a dangerous or potentially dangerous situation.
(Ord. 59-16. Passed 4-3-17.)
(a) Notice of Work, Generally. Except in case of Emergency, as provided in Section 904.06(c), or for Routine Maintenance as provided in Section 904.06(b), no Service Provider, or any Person acting on the Service Provider's behalf, shall commence any work in the Public Right-of-Way of the City or Other Ways without forty-eight (48) hours advance notice to the City, obtaining a Construction Permit pursuant to Section 904.07, if required, and obtaining consent to Occupy or Use the Public Right-of-Way pursuant to Section 904.02, if required. The Service Provider shall further notify the Ohio Utility Protection Service (OUPS) not less than forty-eight (48) hours in advance of any Excavation or work in the Public Right-of-Way.
(b) Routine Maintenance and New Service Orders.
(1) A Service Provider need not obtain a Construction Permit or notify the City prior to or after commencing any Routine Maintenance or New Service Orders that do not include the Construction in, or Excavation or Lane Obstruction of, a Public Right-of-Way or closing of a Public Street.
(2) For Routine Maintenance and New Service Orders that require the Service Provider to cause a Lane Obstruction in a Public Street for more than four (4) hours, the Service Provider shall provide the City with forty-eight (48) hours advance notice prior to commencing the Routine Maintenance or New Service Order, and shall submit a drawing showing the planned traffic maintenance and indicating how the Service Provider will meet all requirements of ODOT's Manual of Traffic Control Devices or other applicable ODOT regulations.
(c) Emergency Work. In the event of the need for any unexpected repair or Emergency work, a Service Provider may commence such Emergency response work as required under the circumstances, provided that for Emergency work that requires Excavation of a Public Right-of- Way or Lane Obstruction or closing of a Public Street, the Service Provider shall notify the City as promptly as possible before commencing such Emergency work, or as soon as possible thereafter if advance notice is not practicable. When notice is required, the Service Provider shall notify the Director.
(Ord. 59-16. Passed 4-3-17.)
Loading...