(A) Findings and purpose.
(1) The Village of Mariemont, Ohio (the "village") is vitally concerned with the use of all rights-of-way in the village as such rights-of- way are a valuable and limited resource which must be utilized to promote the public health, safety, and welfare including the economic development of the village.
(2) Changes in the public utilities and communication industries have increased the demand and need for access to rights-of-way and placement of facilities and structures therein.
(3) It is necessary to comprehensively plan and manage access to, and structures and facilities in, the rights-of-way to promote efficiency, discourage uneconomic duplication of facilities, lessen the public inconvenience of uncoordinated work in the rights-of- way, and promote the public health, safety, and welfare.
(4) The village has authority under the Laws and Constitution of the State of Ohio, including but not limited to Article 18, Sections 3, 4 and 7, to regulate public and private entities which use the rights-of-way.
(B) Scope. The provisions of this chapter shall apply to all users of the rights-of-way as provided herein. To the extent that anything in this chapter conflicts with Chapter 151 of the village Code of Ordinances, then the provisions of this chapter shall control.
(C) Definitions. For the purposes of this chapter the following terms, phrases, words, and their derivations have the meanings set forth herein. When not inconsistent with the context, words in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning. References hereafter to "sections" are, unless otherwise specified, references to sections in this chapter. Defined terms remain defined terms whether or not capitalized.
AFFILIATE. Each person who falls into one or more of the following categories:
(a) Each person having, directly or indirectly, a controlling interest in a provider,
(b) Each person in which a provider has, directly or indirectly a controlling interest,
(c) Each officer, director, general partner, limited partner or shareholder holding an interest of 15% or more, joint-venturer or joint venture partner, of a provider, and
(d) Each person, directly or indirectly, controlling, controlled by, or under common control with the provider; provided that affiliate shall in no event mean any limited partner or shareholder holding an interest of less than 15% of such provider, or any creditor of such provider solely by virtue of its status as a creditor and which is not otherwise an affiliate by reason of owning a controlling interest in, being owned by, or being under common ownership, common management, or common control with, such provider.
APPLICANT. Any person who seeks to obtain a certificate of registration and/or a permit.
APPLICATION. The process by which an applicant submits a request to obtain certificate of registration and/or a permit.
APPLICATION FEE. The fee paid to the village for application for a certificate of registration pursuant to § 57.03(A).
BANKRUPTCY CODE. The United States Bankruptcy Code of 1978, as amended including regulations promulgated by Title 11 of the United States Code.
BEST EFFORT(S). The best reasonable efforts under the circumstances, taking into consideration, among other appropriate matters, all applicable laws, regulations, safety, engineering and operational codes, available technology, human resources, and cost.
CABLE FRANCHISE. The same as "franchise" in the Cable Communications Policy Act of 1984, 98 Stat. 2779, 47 U.S.C. 522.
CABLE OPERATOR. The same as in the Cable Communications Policy Act of 1984, 98 Stat 2779, 47 U.S.C. 522.
CABLE SERVICE. The same as in the Cable Communications Policy Act of 1984, 98 Stat 2779, 47 U.S.C. 522.
CERTIFICATE OF REGISTRATION. The document issued to each provider and its unique system to occupy the rights-of- way within the village that outlines the terms of that occupancy of the rights-of-way.
CODE. The codified ordinances of Mariemont, Ohio.
CONFIDENTIAL/PROPRIETARY INFORMATION. All information that has been either identified or clearly marked as confidential/proprietary information by the provider prior to any submission. Information that is considered by a provider to be either trade secret, confidential and/or proprietary, or information that upon public disclosure would be highly likely to place critical portions of a provider's system in material danger of vandalism, sabotage, or an act of terrorism, all may be marked as confidential/ proprietary information by a provider when submitted. Upon receipt of such clearly marked confidential/ proprietary information from a provider, the village shall endeavor, in accordance with the requirements of R.C. Chapter 149 (The Ohio Public Records Act), to use all the same reasonable measures and exercise the same degree of care that the village uses to protect its own information of such a nature from disclosure to third parties. In the event that the village receives a request from a third party for disclosure of information a provider has clearly marked as confidential/proprietary information, then the village shall respond as required by R.C. Chapter 149, but will attempt to use all reasonable means to notify the provider as soon as possible.
CONSTRUCT. Means, but is not limited to, digging, boring, tunneling, trenching, excavating, obstructing, installing wires, installing conduit, installing pipes, installing transmission lines, installing poles, installing signs or installing facilities, other than landscaping, ornamental plantings in, on, above, within, over, below, under or through any part of the rights-of-way. CONSTRUCT shall also include the act of opening and/or cutting into the surface of any paved or improved surface that is any part of the right-of-way.
CONSTRUCTION. Means, but not limited to, the act or process of digging, boring, tunneling, trenching, excavating, obstructing, installing wires, installing conduit, installing pipes, installing transmission lines, installing poles, installing signs or installing facilities, other than landscaping, ornamental plantings in, on, above, within, over, below, under or through any part of the rights-of-way. CONSTRUCTION shall also include the act of opening and/or cutting into the surface of any paved or improved surface that is part of the right-of-way.
CONSTRUCTION AND MAJOR MAINTENANCE PLAN. A written plan including maps of the expected location, design, other related equipment and facilities of a provider which describes in full the construction intended to be accomplished by the provider in the rights-of-way over the next calendar year.
CONSTRUCTION BOND. A bond posted to ensure proper and complete construction and/or repair of a facility and the affected rights-of- way pursuant to a permit.
CONSTRUCTION PERMIT. The permit specified in § 57.13 et seq. which must be obtained before a person may construct in, locate in, occupy, maintain, move or remove facilities from, in or on the rights-of-way.
COUNTY. Hamilton Ohio. County specifically excludes any and all contractors, agents or other person acting on behalf of said county.
CREDIBLE. Worthy of being believed.
EMERGENCY. A condition that poses a clear and immediate danger to life or health, or of a significant loss of property.
FACILITY(IES). Any tangible thing located in any rights-of-way within the village; but shall not include boulevard plantings, ornamental plantings or gardens planted or maintained in the rights-of-way between a person's property and the street edge of pavement.
FCC. The Federal Communications Commission, or any successor thereto.
FERC. The Federal Energy Regulatory Commission as created and amended in accordance with the Federal Power Act, 16 U.S.C. 792, or its statutory successor.
FULL. Unable to accommodate any additional facilities as determined by the Village Engineer in accordance with the principles of public health, safety and welfare, following a reasonable analysis taking into consideration all applicable law; commonly accepted industry standards; and routine engineering practices.
IN. When used in conjunction with rights-of-way, means in, on, above, within, over, below, under or through a right-of-way.
INSPECTOR. Any person authorized by the Mayor to carry out inspections related to the provisions of this chapter.
LAW. Any local, state and/or federal legislative, judicial or administrative order, certificate, decision, statute, constitution, ordinance, resolution, regulation, rule, tariff or other requirement in effect either at the time of execution of this chapter or at any time during the location of, and/or while a provider's facilities are located in the public rights-of-way.
MAYOR. The duly elected Mayor of the Village of Mariemont, Ohio.
MINOR MAINTENANCE PERMIT. A permit, which must be obtained before a person can
perform minor maintenance, as set forth in § 57.15, in or on the rights-of-way.
OHIO MANUAL OF UNIFORM TRAFFIC CONTROL DEVICES (OMUTCD). The uniform system of traffic control devices promulgated by the Ohio Department of Transportation pursuant to R.C. § 4511.09.
OHIO UTILITY PROTECTION SERVICE. The utility protection service as defined in R.C. § 153.64 and/or § 3781.26 or a statutory successor thereto.
PERMIT. A construction permit or a minor maintenance permit, as the context requires.
PERMIT COST. All direct, incidental and indirect costs actually incurred or realized by the village for permit issuance, permit oversight and pavement degradation resulting from construction activity.
PERMIT FEE. Money paid to the village for a permit to construct in the rights-of-way as required by this chapter.
PERMITTEE. Any person to whom a construction permit and/or minor maintenance permit has been granted by the village and not revoked.
PERSON. Any natural or corporate person, business association or other business entity including, but not limited to, a partnership, a sole proprietorship, a political subdivision, a public or private agency of any kind, a utility, a successor or assign of any of the foregoing, or any other legal entity.
PROVIDER. A person who owns or operates a system and has a valid certificate of registration. The village, Hamilton County, and cable operators operating pursuant to a valid cable franchise, or video service provider operating pursuant to a valid video service authorization shall also be considered providers.
PUCO. The Public Utilities Commission of Ohio as defined in R.C. § 4901.02.
REGISTRATION MAINTENANCE FEE. The money paid to the village to maintain a certificate of registration and compensate the village for all actual costs incurred by the village in the management, administration and control of the rights- of-way of the village, and which are not reasonably recoverable by the village through construction permit fees or other approved recovery mechanisms.
REMOVAL BOND. A bond posted to ensure the availability of sufficient funds to remove a provider's facilities upon abandonment or disuse, or discontinuance of a provider's use or occupation of the rights-of-way.
RESTORATION. The process and the resultant effects by which a right-of-way is returned to a condition as good as or better than its condition immediately prior to the construction. Restoration shall occur in accordance with the rules and regulations as may be enacted or amended from time to time.
R.C. The Revised Code of the State of Ohio.
RIGHT(S)-OF-WAY. The surface and space in, above, within, over, below, under or through any real property in which the village has an interest in law or equity, whether held in fee, or other estate or interest, or as a trustee for the public, including, but not limited to any public street, boulevard, road, highway, freeway, lane, alley, court, sidewalk, parkway, river, tunnel, viaduct, bridge, conduit, or any other place, area, or real property owned by or under the legal or equitable control of the village that, consistent with the purposes for which it was dedicated, may be used for the purposes of constructing, operating, repairing, or replacing a system. RIGHTS-OF-WAY shall not include buildings, parks, or other public property or easements that have not been dedicated to compatible uses, except to the extent the use or occupation of such property is specifically granted in a permit or by law.
RIGHT(S)-OF-WAY COST. All direct, incidental and indirect costs borne by the village for
the management and administration of the rights-of- way and this chapter.
RULE(S) AND REGULATION(S). Any rules or regulations adopted by the Village Engineer pursuant to § 57.06(E).
SERVICE(S). The offering of any service or utility for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, or alternatively, the provision (for a fee or otherwise) of any service or utility between two or more points for a proprietary purpose to a class of users other than the general public that in the opinion of the Mayor constitutes a service.
SUPPLEMENTARY APPLICATION. Any application made to construct on or in more of the rights-of-way than previously allowed, or to extend a permit that had already been issued.
SYSTEM. Any system of conduit, cables, ducts, pipes, wires, lines, towers, antennae wave guides, optic fiber, microwave, laser beams and any associated converters, equipment or facilities or utilities designed and constructed for the purpose of producing, receiving, amplifying, delivering or distributing services within the village. A system shall specifically include, but not necessarily be limited to: electric distribution and/or transmission systems, natural or artificial gas distribution and/or transmission systems, water distribution systems, storm sewer systems, sanitary sewer systems, cable television systems, video service networks, telecommunications systems (whether voice, video, data, or other), fiber optic systems, and wireless communications systems.
SYSTEM REPRESENTATIVE. The specifically identified agent/employee of a provider who is authorized to direct field activities of that provider and serve as official notice agent for system related information. Any such system representative shall be required to be available at all times to receive notice of and immediately direct response to system related emergencies or situations.
TRANSFER. The disposal by the provider, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, of 51% or more at one time of the ownership or controlling interest in the system, or 51% cumulatively over the term of a certificate of registration of such interests to a corporation, partnership, limited partnership, trust, or association or person or group of persons acting in concert
TRENCHLESS TECHNOLOGY. Means but is not limited to, the use of directional boring, horizontal drilling, micro-tunneling and other techniques in the construction of underground portions of facilities which result in the least amount of disruption and damage to rights-of-way as possible.
UNDERGROUND FACILITY(IES). All lines, cables, conduits, pipes, posts, tanks, vaults and any other facilities which are located wholly or partially underneath rights-of-way.
UNUSED FACILITY(IES). Facilities located in the rights-of-way which have remained unused for 12 months and for which the provider is unable to provide the village with a credible plan detailing the procedure by which the provider intends to begin actively using such facilities within the next 12 months, or that it has a potential purchaser or user of the facilities who will be actively using the facilities within the next 12 months, or that the availability of such facilities is required by the provider to adequately and efficiently operate its system.
UTILITY(IES). Any water, sewer, gas, drainage, sprinkler or culvert pipe and any electric power, telecommunications, signal communications, cable television or video service provider conduit, fiber, wire, cable, or an operator thereof.
UTILITY CORRIDOR(S). Those specific areas of the rights-of-way designated as such by the Village Engineer pursuant to § 57.03(F)(1).
VIDEO SERVICE. The same as "video service" in R.C. § 1332.21Q).
VIDEO SERVICE AUTHORIZATION (VSA). A "video service authorization" as issued to a video service provider by the Director of the Ohio Department of Commerce in accordance R.C. § 1332.24(A)(1).
VIDEO SERVICE NETWORK. The same as "video service network" in R.C. § 1332.21(L).
VIDEO SERVICE PROVIDER (VSP). The same as "video service provider" in R.C. § 1332.21(M).
VILLAGE. The Village of Mariemont, Ohio.
VILLAGE COUNCIL. The governing body of the Village of Mariemont, Ohio.
VILLAGE ENGINEER. The duly appointed Village Engineer of the Village of Mariemont, Ohio.
VILLAGE FISCAL OFFICER. The duly appointed Fiscal Officer of the Village of Mariemont, Ohio.
VILLAGE SOLICITOR. The duly appointed Village Solicitor of Mariemont, Ohio.
WORKING DAY. Any Monday, Tuesday, Wednesday, Thursday, or Friday, but excluding legal holidays observed by the village.
(Ord. O-20-20, passed 10-26-2020)