709.02 CONSENT TO OCCUPY OR USE THE PUBLIC RIGHT-OF-WAY.
(a) Consent Required to Occupy Public Right-of-Way. No Person shall collocate a Small Cell Facility and/or construct, maintain, modify, operate, or replace a Wireless Support Structure in the Public Right-of-Way without obtaining prior consent from the Village to do so.
(b) Initial Consent Presumed.
(1) A Person with a Small Cell Facility on a Wireless Support Structure in the Public Right-of-Way on the effective date of this Chapter, who lawfully occupies the Public Right-of-way on the effective date of this Chapter, shall be presumed to have initial consent of the Village for its existing Small Cell Facility and Wireless Support Structure to Occupy or use the Public Right-of-Way which has been previously approved by the Village.
(2) Initial presumed consent for Occupancy or use of the Public Right- of-Way is limited to the existing Small Cell Facility and Wireless Support Structure.
(3) A Person with initial presumed 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 and Indemnity requirements set forth in Sections 709.02(e) and (f) of this Chapter.
(c) Application for Consent to Occupy or Use Public Right-of-Way.
(1) The following Persons shall apply to the Village for consent to Occupy or use the Public Right-of-Way on a form provided by the Village, any Person who:
A. Does not currently have an existing, Small Cell Facility on a Wireless Support Structure in the Village's Public Right-of-Way and desires to Construct a new Small Cell Facility on a Wireless Support Structure in the Public Right-of-Way; or
B. Has initial presumed consent or Village consent to Occupy or Use the Public right-of-Way on a Wireless Support Structure but is planning:
(i) a Capital Improvement or Reconstruction of an existing Small Cell Facility on a Wireless Support Structure; or
(ii) to Construct an additional Small Cell Facility on a Wireless Support Structure anywhere in the Village.
(2) The application for 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 Small Cell Facility on a Wireless Support Structure in the Public Right-of-Way, as well as plans for any planned Capital Improvements or Reconstruction:
A. The identity, legal status and federal tax identification number of the applicant, including all Affiliates of the applicant or Service Provider in the State of Ohio that will Use or Occupy the Public Right-of-Way or are in any way responsible for the Small Cell Facility and Wireless Support Structure 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 available at all reasonable times to be notified in case of emergency.
C. A description of the existing or proposed Small Cell Facility and Wireless Support Structure in the Village's Public Right-of-Way, including but not limited to engineering plans, specifications or a map, all in sufficient detail to identify:
(i) the location of the applicant's Small Cell Facility and Wireless Support Structure or proposed Small Cell Facility and Wireless Support Structure.
(ii) the location of all existing Overhead and/or underground Facilities, Facility, Small Cell Facilities, Wireless Support Structures in the Public Right-of-Way in the area of the applicant's or Service Provider's Small Cell Facility and Wireless Support Structure or proposed Small Cell Facility and Wireless Support Structure that is sufficient to show the impact of the applicant's Small Cell Facility and Wireless Support Structure on other existing Facilities, Facility, SmallCell Facility or Wireless Support Structures.
(iii) the location of all overhead and underground utility easements.
D. A preliminary Construction schedule and completion date for all planned Capital Improvements.
E. Evidence that the applicant or Service Provider has complied, or will comply, with indemnification and insurance requirements of this Chapter.
F. Information sufficient to determine that the applicant or Service Provider has received any certificate of authority required by the PUCO.
G. A description of the construction methods to be employed for the protection of existing structures, fixtures and Facilities in or adjacent to the Public Right-of-Way.
H. A description of the structures, improvements and obstructions, if any, that the applicant proposes to temporarily or permanently remove or relocate.
I. A description of the impact of Construction, Reconstruction, installation, maintenance or repair of a Small Cell Facility and Wireless Support Structure on trees in or adjacent to the Public Right-of-Way, together with a landscape plan for protecting, trimming, removing, replacing and restoring any trees or areas disturbed during Construction.
J. All applications shall be accompanied by the certification of a State of Ohio registered professional engineer that the drawings, plans and specifications submitted with the application comply with applicable technical codes, rules and regulations.
K. All applications which involve a Lane Obstruction or work on, in, under, across or along any Public Right-of-Way shall be accompanied by a traffic control plan demonstrating the protective measures and devices that will be employed, consistent with the Ohio Department of Transportation's Uniform Manual of Traffic Control Devices and other applicable ODOT regulations, to prevent injury or damage to Persons or property and to minimize disruptions to efficient pedestrian and vehicular traffic. The Village may require the Service Provider to use and employ the Village Police Force for Traffic Control.
L. Such other and further information as may reasonably be requested by the Village.
(3) Permit Application Review Timeframes.
A. Collocation of Small Cell Facilities on Existing Wireless Support Structures. The Village Council shall grant or deny its consent for requests to collocate, or to replace or modify a small cell facility on, or associated with an existing wireless support structure not later than ninety (90) days after the date of filing by an entity of a completed application.
B. New Wireless Support Structures and Associated Small Cell Facilities. The Village Council shall grant or deny its consent for requests to construct, modify or replace a wireless support structure associated with a small cell facility within the right-of-way not later than one hundred twenty (120) days after the fate of filing by an entity of a completed application.
C. Wire Support Structures and/or Small Cell Facilities Removal. The Village Council shall grant or deny its consent for request to remove wireless support structures associated with small cell facilities from the right-of-way typical to the review timeframes for the General Right-of-Way Permit required for this activity.
(4) The Village will regulate the above timeframes as follows. for applications regarding small cell facilities on existing support structures, the Village, by and through its Planning Commission, shall recommend the granting or denial, in writing, a Person's application for consent to Occupy or Use the Public Right-of-Way within forty (40) days of the date on which the Person filed the application and all necessary information with the Village. The Village Council will act upon the Planning Commission's recommendation within fifty (50) days and shall grant or deny, in writing, a person's application for consent to occupy or use the Public Right-of-Way. For applications involving new wireless support structures, the above timelines for Planning Commission recommendation and Council's granting or denial are extended by fifteen (15) days to each the Planning Commission and Village Council.
A. The Village may withhold, deny or delay its consent to a Person's application to Occupy or Use the Public Right-of-Way based on the health, safety and welfare of the Village and in accordance with Village Ordinances and Ohio law. These reasons may include but not be limited to those criteria set forth in Section 709.02(d) of this Chapter.
B. If the Village Council denies a Person's application to Occupy or Use the Public Right-of-Way, the Village shall provide its reasons in writing for denying the application, and shall provide any information that the Person may reasonably request necessary for the Person to obtain the Village's consent to Occupy or Use the Public Right-of-Way.
(5) The Village'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 Village's consent for such Person to Occupy or Use the Public Right- of-Way.
(6) Each Person submitting an application for Consent to Occupy or Use the Public Right-of-Way shall pay a fee as set forth in Section 709.06 and assessed by the Building Commissioner to reimburse the Village for its administrative costs.
(7) A Person seeking to Construct, modify, Collocate, or replace more than one (1) Small Cell Facility or one (1) Wireless Support Structure may file a consolidated application for consent to occupy or use the Public Right-of-Way for up to thirty (30) Small Cell Facilities in a single application or up to thirty (30) Wireless Support Structure requests in a single application. Said single application may only address multiple Small Cell Facilities or multiple Wireless Support Structures if they each involve substantially the same type of Small Cell Facilities or substantially the same type of Wireless Support Structures. In the case of a consolidated application, the fees provided for in Section 4939.0316 of the Ohio Revised Code and Section 709.06 of this Chapter may be cumulative. However, the Village, at its discretion may opt to reduce such fees in order to encourage consolidated application submittals. The Village may separately address Small Cell Facilities or Wireless Support Structures for which incomplete information has been received or which are denied. In the case of a single application, each Small Cell Facility or Wireless Support Structure proposed to be Constructed, modified or Collocated on, or replaced shall constitute a separate request for Consent to Occupy or use the Public Right-of-Way for purposes of tolling the response deadline set forth in this Chapter.
(8) The time periods set forth herein may be tolled:
A. By mutual agreement between the Person requesting consent and the Village;
B. Where the Village determines that the application is incomplete; or
C. By the Village in the event it receives applications for at least twenty-five (25) Small Cell Facilities or Wireless Support Structures contained in pending requests, in which case the Village may toll the ninety (90) day period for up to twenty-one (21) days.
D. To toll the time period for incompleteness, the Village shall provide written notice to the Person requesting consent not later than thirty (30) days after receiving the request, clearly and specifically delineating all missing documents or information.
E. The time period resumes when the Person makes a supplemental submission in response to the Village's notice of incompleteness.
F. If a supplemental submission is inadequate, the Village shall notify the Person not later than ten (10) days after receiving the supplemental submission that the supplemental submission did not provide the information identified in the original notice delineating missing documents or information. The time period may be tolled in the case of second or subsequent notices under the procedures identified in divisions (A) to (C) of this Section.
(d) Small Cell Facility in Public Right-of-Way. No Person shall occupy or use the Public Right-of-Way as a Small Cell Facility on a Wireless Support Structure without first obtaining the approval of the proposed improvements by the Village Council after submission to the Planning Commission for a recommendation to approve or deny the proposed improvements. The Person proposing the improvements shall first deliver to the Planning Commission twelve (12) sets of the plans and specifications including all necessary details, profiles, and cross-sections for each proposed improvement in the event the plans and specifications are not electronically mailed to the Planning Commission. The Planning Commission shall approve or disapprove of such proposed improvements based on the following standards:
(1) Compliance with all Village codes and laws and other governmental laws where required;
(2) The recommendation of all administrative departments in regard to the improvements;
(3) The effect of the proposed improvements on the right-of-way and in relation to all other improvements already installed or approved;
(4) The proposed location of the improvements in regard to such items as sight lines, drainage, safety, and visual interference;
(5) The size, bulk, and location of the improvements in relation to obtaining proper light, air, privacy, usable open space, and compatibility with surrounding uses;
(6) The proper screening or placement of the improvements to minimize the negative effects of the improvements on the right-of-way or adjoining uses;
(7) Compliance with the United States Department of Transportation Manual on Uniform Traffic Control Devices (MUTCD) and Ohio Department of Transportation Ohio Manual of Uniform Traffic Control Devices (OMUTCD).
(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 Village as additional insured and regardless of any other insurance provisions contained in Village ordinances:
(1) Comprehensive general liability insurance with limits not less than
A. One Million Dollars ($1,000,000.00) per occurrence, Two Million Dollars ($2,000,000.00) annual aggregate, for bodily injury or death to each Person;
B. One Million Dollars ($1,000,000.00) per occurrence, Two Million Dollars ($2,000,000.00) annual aggregate, for property damage resulting from any one accident; and
C. One Million Dollars ($1,000,000.00) per occurrence, Two Million Dollars ($2,000,000.00) annual aggregate, for all other types of liability.
(2) 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:
"It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until thirty (30) days after receipt by the Village, by registered mail, of a written notice addressed to the Building Commissioner of such intent to cancel or not to renew."
(3) Within thirty (30) days after receipt by the Village of said notice, and in no event later than fifteen (15) days prior to said cancellation, the Service Provider shall obtain and furnish to the Village replacement insurance policies meeting the requirements of this Section.
(4) All insurance policies required herein shall be written with an insurance company authorized to do business in the State of Ohio in relation to the specific type of insurance required.
(5) Upon written application to, and written approval by, the Director of Finance of the Village, a Service Provider may be self-insured to provide all of the same coverages as listed in this Section. As part of the review process, the Director of Finance may require, and the self-insurance applicant shall provide, any and all financial documents necessary to make a valid determination of the applicant's ability to meet the needs of this Chapter.
(f) Each applicant for Consent to Occupy or Use the Right-of-Way shall provide the Village a construction performance and construction completion bond in an amount equal to ten percent (10%) of the applicable construction cost. Such amount shall not exceed two hundred thousand dollars ($200,000.00).
(g) General Indemnification. Each application for consent to Occupy or Use the Public Right-of-Way shall include, to the extent permitted by law, the Service Provider's express undertaking to defend, indemnify and hold the Village and its elected and appointed officers, officials, employees, agents, representatives and subcontractors harmless from and against any and all damages, losses and expenses, including reasonable attorney's fees and costs of suit or defense, arising out of, resulting from or alleged to arise out of or result from the negligent, careless or wrongful acts, omissions, failures to act or misconduct of the Service Provider or its Affiliates, officers, employees, agents, contractors or subcontractors in the design, Construction, Reconstruction, installation, operation, maintenance, repair or removal of its Small Cell Facility and Wireless Support Structure, and in providing or offering Services over the Small Cell Facility and Wireless Support Structure, whether such acts or omissions are authorized, allowed or prohibited by this Chapter.
(Ord. 2018-24. Passed 8-20-18.)