(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 R.C. § 1332.24; and/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.
(3) Any person with presumed initial consent to occupy or use the public right-of-way for existing facilities shall comply with the initial registration requirements pursuant to division (c)(2) of this section and Section 1022.03(a) within ninety days of the effective date of this chapter.
(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 divisions (e), (f) and (g) of this section and Section 1022.03(a) and (b).
(c) Application for Consent to Occupy or Use Public Right-of-Way.
(1) The following persons 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. 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 division (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
(2) The application for consent to occupy or use the public right-of-way and/or initial registration pursuant to Section 1022.03(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 and/or facilities in the public right-of-way as well as plans for any planned capital improvements or reconstruction for the following twelve 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/or underground 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 division (b)(2)E. as proprietary and/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 and/or trade secret. The service provider shall have three 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 month period following the date of application; provided, however, that the service provider may elect that such information be treated pursuant to division (c)(2)E.2. of this section if it considers the information proprietary and/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 build-out, 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 City Engineer.
(3) The City Engineer shall grant or deny, in writing, a person's application for consent to occupy or use the public right-of-way within sixty 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 and/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 administrative costs related to the application, which reimbursement may be in the form of an application fee or as provided in Section 1022.08, 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 standards 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 liability 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 Administrative Director of such intent to cancel or not to renew."
(6) Within sixty days after receipt by the City of said notice, and in no event later than thirty 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 Administrative Director, 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 subcontractors 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/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 City Engineer 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 division (g) shall not apply to a service provider that: (i) has presumed initial consent to occupy or use the public right-of-way under division (b) of this section; and (ii) has not been the subject of litigation or other enforcement action by the City arising from the service provider's activities in the public right-of-way within the five 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 City Engineer.
(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. 2017-O-04. Passed 4-11-17.)