711.05 PERMITS.

   All Permits issued under this chapter are subject to the following terms and conditions:

    (a)    All construction work of any kind, any placement of physical items in, on, under or over a public Right-of-Way, any obstruction or temporary use of a public Right-of-Way, or any other kind of use of a public Right-of-Way for private purposes, other than ordinary traffic and Residential Related Uses, shall require that the person proposing such use first obtain a permit from the Municipality, unless otherwise provided for in this chapter. Ordinary traffic shall not include moving an excess load of greater width, height, length or weight than is permitted by law per load, any parades, carnivals, demonstrations, or marches, or other special uses of the rights of-way.

   (b)    Any Permit issued shall not replace or serve in the stead of any franchise or other contract for providing certain kinds of utility or communications services.

   (c)    Any Permit granted shall be non-exclusive.

   (d)    In considering applications for Permits, the following hierarchy of uses and users will guide the decision process:

      (1)    First: uses by the Municipality, its departments, agents and contractors;

      (2)    Second: uses by other governmental entities made with the Municipality’s concurrence or other uses required by law;

      (3)    Third: holders of Use Permits, as defined below;

      (4)    Fourth: holders of Temporary Permits, as defined below;

      (5)    Fifth: all other users.

Provided, that nothing herein shall be construed to deprive the Director of the right to exercise his or her judgement and make whatever decision best serves the interests of the Municipality and its residents.

   (e)    Use Permits are those issued to Permittees who require placement of infrastructure within, or obstruction of, the Right-of-Way or other uses for indefinite periods of time. A Use Permit shall include but not be limited to all persons, firms, partnerships, corporations, limited liability companies, trusts, joint stock companies, incorporated associations, governmental entities, banking institutions, joint stock companies, and any other organization, wishing to construct, operate, maintain, reconstruct, and or rebuild a telecommunications network used to provide telecommunications services to residents, businesses or other premises within the City or through the City to service other municipalities. Further, a Use Permit shall be deemed to include any Temporary and Minor Use Permits otherwise needed by the Permittee for its use of the Right-of-Way. Upon issuance of a Use Permit, a Use Permittee is not required to obtain either a Minor Use Permit or a Temporary Permit, except that a Use Permittee shall comply with Sections 711.12 and 711.01.

   (f)    Minor Use Permits are those issued to Permittees who require placement of infrastructure within, or obstruction of, the Right-of-Way or other uses for an indefinite period of time that have an insignificant, de-minimus impact on the Right-of-way. Unless otherwise determined by this chapter, the Building Commissioner shall determine whether a particular use of the Right-of-Way warrants a Minor Use Permit or a Use Permit.

   (g)    Temporary Permits are those issued to Permittees whose presence in or use of the Right-of-Way is temporary and/or not intended to leave behind infrastructure. Persons requiring a Permit must apply to the Director on forms provided for that purpose, and supply such plans, maps, engineering drawings and other supporting documentation as may be required. For the purposes of a Temporary Permit, temporary shall mean a period no greater than 120 days.

   (h)    Application must be made sufficiently in advance of the time proposed for execution to permit the Director to review the application, make inquiries, and, if necessary and appropriate, negotiate the terms under which the Municipality is willing to issue a Permit.

   (i)    In reviewing applications and considering whether to grant them or not, the Director will use as criteria the following factors:

      (1)    Are there any likely adverse effects on the public health, safety or welfare?

      (2)    Is the Application complete and the supporting documentation sufficiently clear to permit an informed decision?

      (3)    Does the applicant provide an essential service or a service that will enhance the Municipality s competitiveness in terms of economic development or quality of life?

      (4)    Does the proposal make efficient use of the limited space within the right-of-way? Does it duplicate existing facilities or, alternatively, provide space for other, future uses?

      (5)    Does the way in which the work is to be accomplished minimize physical damage, disruption to traffic, negative aesthetic outcomes and other undesirable consequences?

      (6)    Is the prospective Permittee current in all its obligations to the Municipality, including franchise and permit fees, taxes, insurance certificates, bonds and the like?

   (j)    Appeals. Any Applicant who is denied a Permit, or given notice of violation(s) of a Permit, may, within ten calendar days, of the denial or notice of violation(s), file a formal written appeal with the Mayor. The Mayor will then consider the appeal, giving the Applicant an opportunity to present his or her case either in person or in writing. The Mayor shall make a determination and advise the Applicant in writing of its decision. The Mayor's decision shall be appealable to City Council within thirty days of the date of the Mayor's written decision.

   (k)    Fees. At the time of applying for a Permit, the applicant shall pay fees as follow:

      (1)    The Municipality and other government entities are exempt from fees.

      (2)    Holders of valid Use Permits who are required to move their facilities by the Municipality will not be liable for payment of fees but will need to meet all other permit requirements (plans, notice, etc.).

      (3)    Persons seeking a Use Permit shall pay annual fees effective for the calendar year on or before the last day of February of the year [or which they are to be in effect as follows:

Annually, the Mayor, with the input of the Building Commissioner and City Engineer, shall determine the annual cost and expense incurred by the Municipality for maintaining and managing the Right-of-Way, said annual cost and expense shall include without limitation all repairs and replacements, restoration, improvements, and landscaping to the Right-of-Way caused by the private use thereof by Use Permittees; administrative costs including without limitation granting and administering the Use Permit process, inspecting job sites and infrastructure, and other administrative costs; and other costs incurred by the

Municipality relating to the private use of the Right-of-Way by Use Permittees. The Mayor, with the input of the Building Commissioner and City Engineer, shall calculate a lineal-mile charge by dividing the total annual cost and expense for maintaining and managing the Right-of-Way by the estimated total lineal miles of private infrastructure owned or operated by users subject to Use Permits and located in the Right-of-Way of the Municipality. The annual Use Permit fee shall be the product of the number of lineal miles of the applicant's proposed use of the Right-of-Way, rounded to the highest round number, times the lineal-mile charge as determined annually by the Mayor.

      (4)    The Use Permit fee shall be paid beginning with Use Permits issued for the calendar year 2003 and thereafter.

      (5)    Any Franchisees or OVS operators who pay a fee equal to five percent (5%) or more of their Gross Receipts shall be considered to have already met their financial obligations to the Municipality for Use Permits.

      (6)    New Permits issued after June 30th of a given year shall pay a prorated fee at half the rates cited above.

      (7)    Persons seeking a Temporary Permit shall pay a permit fee of ten dollars ($10.00) for each day that a permit is required.

      (8)    Persons seeking a Minor Use Permit shall pay a permit fee pursuant to a schedule approved by the Mayor for each particular minor use. The current schedule for minor uses is attached to this chapter as Appendix A, and may be modified by the Mayor from time to time in his discretion to reflect the administrative cost of processing and administering the Minor Use Permit. The Mayor may determine the permit fee for any minor use not set forth in Appendix A.

      (9)    Any Franchisee of the Municipality as of the date of this chapter shall be exempt from Use Permit fees during the remaining term of the franchise. Upon the expiration of the existing Franchise, the then former Franchisee shall be subject to the Use Permit fees.

   (l)    Bond. In addition to the permit fees stated herein, Permittees, other than governmental entities, shall provide a bond or other surety in a form acceptable to the Director in an amount equal to the annual permit fee or ten thousand dollars ($10,000), whichever is greater, as a guarantee of Permittee's performance of its obligations herein. Minor Use Permittees and Public Utilities shall not be required to provide a bond or other surety, except that all Permittees that are performing improvements under contract for owners of infrastructure, including without limitation Public Utilities, and other third- parties shall provide a bond or surety in an amount set by the Director in his sole discretion, to guarantee performance of Permittee's obligations herein. Temporary Use Permittees shall provide a bond or surety in an amount set by the Director in his sole discretion to guarantee performance of Temporary Use Permittee's obligations herein. The Director may require subsequent bonds to guarantee Permittee's performance of its obligations herein for maintenance and other obligations in an amount determined by Director in his sole discretion. Any construction bond requirement shall expire upon the completion of construction and restoration of the Right-of-Way to its prior condition.

   (m)    Costs. In addition to permit fees set forth herein, the Director shall collect from the Permittee an additional fee for costs incurred by the Municipality arising from enforcement of this chapter against the Permittee.

   (n)    Regulations. The Director may promulgate and adopt such rules, regulations, forms and procedures as may be necessary to assure the timely, thorough and efficient administration of the permit process.

   (o)    Permits are not transferable from one user to another without the written consent of the Director, provided however that if the Public Utilities Commission of Ohio or the Federal Communications Commission authorizes a user to be acquired by another entity, then the Director's approval shall not be required to transfer or assign the permit to such acquiring entity or affiliate.

   (p)    Notice. Any Permittee shall give a minimum of forty-eight hours of advance notice to the Director before commencing any work on or in the right-of-way, except as otherwise provided in this chapter.

   (q)    Revocation. Should the Director find any material misrepresentation in the application materials, or should the Permittee fail to meet all of its obligations to the Municipality, or should the Director determine at any time and for any reason that it is damaging to the interests of the Municipality if work anticipated in the Permit should proceed, he or she may revoke the Permit. In cases of emergencies where failure to respond to a problem may endanger human life or safety, or threaten property destruction, any Person may proceed to respond or take corrective action to the least extent necessary to prevent hazard or loss, provided that they notify the Police Dispatcher of their presence and work within the right-of-way, and file the requisite notice and permit documents at the earliest opportunity after the emergency has passed and when the permit office is open for business.

   (r)    Permit Exhibition. Any Permittee under this chapter, other than the Municipality and other governmental entities and Public Utilities, shall ensure that the Permit is in possession of the person in charge of the work to be done, at the same time the thing or act to be done is being carried on. Such Permit shall be exhibited to any police officer or other proper public official upon demand. No person in charge of such work shall refuse to exhibit the Permit, and in case of any failure or refusal to exhibit such Permit, the officer shall order the work discontinued until the Permit is exhibited and examined.

   (s)    Existing Permit. Any valid permit issued pursuant to Macedonia C.O. Chapter 711 prior to the enactment of this chapter shall continue in force until its expiration or revocation.

      (Ord. 5-2003. Passed 3-13-03.)