(a) Public Right-of-Way Route. Consent granted to a Service Provider to Occupy or Use the Public Right-of-Way under Section 905.02 shall be limited to a grant to Occupy or Use the specific Public Right-of-Way and defined portions thereof including the specific Facilities and location along the Public Right-of-Way.
(b) Nonexclusive Consent to Occupy the Public Right-of-Way. No consent granted under Section 905.02 shall confer any exclusive right, privilege, license or franchise to Occupy or Use the Public Right-of-Way of the City to operate a System for delivery of Services or any other purposes.
(c) Rights Permitted. No consent granted under Section 905.02 shall convey any right, title or interest in the Public Right-of-Way, but shall be deemed a consent only to Occupy or Use the Public Right-of-Way for the limited purposes granted by the consent. Further, no consent shall be construed as any warranty of title. This chapter shall not affect the right to occupy the public right-of-way granted to public utilities in connection with the tariff issued by the State of Ohio and regulated by the Public Utilities Commission of Ohio said consent to occupy the public right-of-way having been granted to such public utility by the State of Ohio subject to only local regulation of matters of local concern.
(d) Nondiscrimination. A Public Service Provider providing Service to the public in the City shall make its Services available to any customer within the designated service area who shall request such Service, without discrimination as to the terms, conditions, rates or charges for the Public Service Provider’s Services; provided, however, that nothing in this Section shall prohibit a Public Service Provider from making any reasonable classifications among differently situated customers.
(e) Maintenance of Facilities. Each Service Provider shall maintain its System or Facilities in good and safe condition and in a manner that complies with all applicable federal, State and local requirements.
(f) Safety Procedures. A Service Provider or other Person acting on its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as necessary and in accordance with applicable State and local requirements.
(g) Interference with the Public Rights-of-Way. No Service Provider may locate or maintain its Facilities so as to unreasonably interfere with the use of the Public Right-of-Way by the City, by the general public or by other Persons authorized to use or be present in or upon the Public Right-of-Way. All such Facilities shall be moved by the Service Provider, temporarily or permanently, as determined by the Mayor, in accordance with applicable provisions in the Ohio Revised Code and Ohio Law, and consistent with the established rights of any Public Utility under Ohio Law.
(h) Damage to Public and Private Property. No Service Provider nor any Person acting on the Service Provider’s behalf shall take any action or permit any action to be done which may impair or damage any City Property, Public Right-of-Way, Other Ways or other public or private property located in, on or adjacent thereto.
(i) Restoration of Public Right-of-Way, Other Ways and City Property.
(1) When a Service Provider, or any Person acting on its behalf, does any work in or affecting any Public Right-of-Way, Other Ways or City Property, it shall, after the work is completed, promptly remove any obstructions therefrom and restore such ways or property, within sixty (60) days, to as good a condition as existed before the work was undertaken.
(2) If weather or other conditions do not permit the complete restoration required by this Section, the Service Provider shall temporarily restore the affected ways or property. The Service Provider shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.
(j) Duty to Provide Information.
(1) Within ten (10) days of a written request from the Mayor, each Service Provider, with the exception of Public Utilities operating under a tariff issued by the State of Ohio and regulated by the Public Utilities Commission, shall furnish the City with documentation sufficient to show that the Service Provider has complied with all requirements of this Chapter.
(2) In addition, within ten (10) days of a written request from the Mayor, each Service Provider shall make available for inspection by the City at reasonable times all books, records, maps and other documents, maintained by the Service Provider with respect to its Facilities in the Public Right-of-Way. Public Utilities operating under a tariff issued by the State of Ohio and regulated by the Public Utilities Commission of Ohio and for tariff related activities will respond to the City’s request for Facility information through the OUPS Design ticket process, in accordance with the Ohio Revised Code.
(k) Leased Capacity. A Service Provider shall have the right, without prior City approval, to lease capacity or bandwidth to an unaffiliated Service Provider, provided:
(1) The Service Provider shall notify the City of the lease agreement within thirty (30) days of such lease agreement.
(2) The lessee has complied, to the extent applicable, with the requirements of this Chapter.
(l) Assignments or Transfers of Consent. Consent to Occupy or Use the Public Right-of- Way may be, directly or indirectly, transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the Service Provider, by operation of law or otherwise, without consent of the City, so long as:
(1) The City is notified of the proposed transfer on or before the date of transfer;
(2) The transferee shall fully comply with this Chapter within sixty (60) days of the transfer, including, but not limited to:
B. Any other information reasonably required by the Mayor.
(3) This section shall not apply to public utilities operating under a tariff issued by the State of Ohio and regulated by the PUCO where such activities are regulated by the State of Ohio or Federal Agencies and such public utility shall only be required to notify the City when such transfer has been approved by a regulatory body.
(m) Transactions Affecting Control of Consent. Any transactions that singularly or collectively result in a change of twenty-five percent (25%) or more of the ownership or ultimate working control of a Service Provider, of the ownership or working control of the Service Provider’s Facility, or of control of the capacity or bandwidth of the Service Provider’s System, Facilities or substantial parts thereof, shall be considered an assignment or transfer pursuant to Section 905.04(1) hereof. Transactions between Affiliated entities are not exempt from Section 905.04(1).
(n) Revocation of Consent. Consent granted by the City to occupy or Use the Public Right-of-Way of the City may be revoked, except as to public utilities operating under a tariff issued by the State of Ohio and regulated by the Public Utilities Commission, for any one of the following reasons:
(1) Construction, Reconstruction, installation, location, operation or Excavation at an unauthorized location.
(2) Construction, Reconstruction, installation, location, operation or Excavation in violation of City safety and/or Construction requirements.
(3) Material misrepresentation or lack of candor by or on behalf of a Service Provider in any Permit application or registration required by the City.
(4) Failure to relocate or remove Facilities, or failure to restore the Public Right-of-Way, as required by this Chapter.
(5) Failure to pay fees, costs, taxes or compensation when and as due the City.
(6) Insolvency or bankruptcy of the Service Provider.
(7) Violation of material provisions of this Chapter.
(o) Notice and Duty to Cure. In the event that the Mayor believes that grounds exist for revocation of consent to Occupy or Use the Public Right-of-Way or Construction Permit, he shall give the Service Provider written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the Service Provider a reasonable period of time not less than thirty (30) days to furnish evidence:
(1) That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance;
(2) That rebuts the alleged violation or noncompliance; and/or
(3) That it would be in the public interest to impose some penalty or sanction less than revocation.
(Ord. 2006-70. Passed 11-14-06.)