(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 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 City Engineer. If a provider is denied a requested waiver from the above requirements, the provider may appeal the denial of the City Engineer to the Administrative Director as set forth in Section 1022.99(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 City Engineer.
(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 City Engineer. 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 1022.08 for such occupancy.
(d) Relocation or Removal of Facilities. Within thirty 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 thirty 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 R.C. § 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 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 1022.03.
(f) Failure to Remove and/or Relocate Facilities. If the service provider fails to remove and/or relocate any of its facilities within the thirty days period set forth in division (e) of this section, or receive an extension of time from the City Engineer 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;
(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. 2017-O-04. Passed 4-11-17.)