(a) Consent Required to Occupy Right-of-Way. No Person shall occupy or use the Right-of-Way without obtaining prior consent from the City to do so, except as otherwise provided for those Service Providers with initial presumed consent pursuant to Section 902.02(c).
(b) Persons Required to Apply for Consent to Occupy or Use Right-of-Way.
(1) Each Person in the following categories shall apply to the City for consent to Occupy or use the Right-of-Way on a form provided by the City Engineer if such Person:
A. Does not currently have an existing System or Facilities in the City’s Right-of-Way and desires to construct a System or Facilities in the Right-of-Way;
B. Had an existing System or Facilities in the Right-of-Way on July 2, 2002 and does not have presumed initial consent under Section 902.02(c)(1) below;
C. Has initial presumed consent or City consent to occupy or use the Right-of-Way for an existing System or Facilities, but is planning to construct additional Facilities or an additional System anywhere in the City; or
D. Is a Contractor that performs work on or intends to perform work on Facilities in the Right-of-Way owned or operated by a Service Provider or other Person. A Contractor must independently obtain the City’s consent to occupy or use the Right-of-Way and comply with the Annual Registration requirements regardless of whether the Contractor performs work on a System or Facilities owned or operated by a Service Provider or other Person that has obtained the City’s consent, or has initial presumed consent, to occupy or use the Right-of-Way. Any Contractor currently performing work on Facilities in the Right-of-Way shall apply for consent to occupy or use the Right-of-Way within ninety (90) days of the effective date of this Chapter.
(c) Initial Consent Presumed.
(1) A Person with existing Facilities in the Right-of-Way on July 2, 2002 Chapter shall have conclusively presumed initial consent for those Facilities to occupy or use the Right-of-Way if such Person:
A. Is subject to jurisdiction by the PUCO;
B. Has a valid franchise agreement or other agreement with the City to provide cable or video services in the City or has a video service authorization from the State of Ohio, and/or
C. Is any other Person whose existing Facilities lawfully occupied the Right-of-Way on July 2, 2002.
(2) Initial presumed consent for occupancy or use of the Right-of-Way is limited to the Service Provider’s existing System on the effective date of this Chapter.
(3) Any Service Provider with initial presumed consent to occupy or use the Rights-of-Way shall file an Initial Registration with the City within ninety (90) days of the effective date of this Chapter, on a form provided by the City Engineer, which shall include the information required by Section 902.02(d) of this Chapter.
(4) A Person with initial presumed consent must comply with the requirements of this Chapter with respect to the ongoing occupancy or use of the Right- of-Way including, but not limited to, the Insurance, Indemnity, Performance Bond and Registration requirements of Sections 902.03 and 902.04(a), (b) and (c) of this Chapter.
(d) Application for Consent to Occupy or Use the Right-of-Way; Initial Registration of Service Providers with Initial Presumed Consent. The application for Consent to occupy or use the Right-of-Way and/or initial registration pursuant to Section 902.02(c) for Service Providers with initial presumed consent to occupy or use the 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 Right-of-Way as well as plans for any planned Capital Improvements or Reconstruction for the following twelve (12) months:
(1) 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 Right-of-Way or are in any way responsible for Facilities located in the Right-of-Way.
(2) 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.
(3) If the applicant or Service Provider owns or operates a System or Facilities in the Right-of-Way
A. A general description of the Service provided or to be provided by the applicant or Service Provider over the System or Facilities. Where Services are or will be provided by a nonaffiliated provider with authorized physical access to the Service Provider’s Facilities, the applicant or Service Provider shall identify that provider.
B. A current list of any Contractors used by, or approved for use by, the applicant or Service Provider to work on its Facilities.
C. A description of the type of transmission medium used, or to be used, by the applicant or Service Provider to operate a System.
D. A map and description of the existing or proposed Facilities in the City’s Right-of-Way, all in sufficient detail to identify:
1. The location and route of the applicant’s or Service Provider’s Facilities or proposed Facilities.
2. The location of all known existing Overhead and/or Underground Facilities in the Right-of-Way along the route or proposed route of the applicant’s or Service Provider’s Facilities or proposed Facilities that is sufficient to show the impact of the applicant’s Facilities on other existing Facilities.
E. Upon written request of a Service Provider, the City Engineer may modify the requirements of subsection (d)(3)D., if in his or her reasonable discretion such modification serves the purposes of this Chapter and the City’s need to manage its public Rights-of-Way.
F. A Service Provider may designate any portion or portions of the maps and/or information provided pursuant to subsection (d)(3)D. as proprietary and confidential. In this event, the City shall seek to maintain the confidentiality of such maps and/or 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 maps and/or information the Service Provider has designated to be confidential. The Service Provider shall have three (3) 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 related costs.
(4) If the applicant is a Contractor, a description of the applicant’s training and qualifications, including technical and financial qualifications, to Occupy or use the Right-of-Way.
(5) Evidence that the applicant or Service Provider has complied, or will comply, with the Indemnification, Insurance and Performance Bond requirements of this Chapter.
(6) Information sufficient to determine that the applicant or Service Provider has received any certificate of authority required by the PUCO, FCC or other applicable State or Federal Agency to operate a System and provide Services in the City.
(7) Written acknowledgement of receipt of a copy of this Chapter.
(8) Such other information as the City Engineer may reasonably require relevant to the Service Provider’s or Contractor’s use or intended use of the Right-of-Way.
(e) City Consent or Denial for Occupancy or Use of the Right-of-Way.
(1) The City Engineer shall grant or deny, in writing, a Person’s application for consent to occupy or use the Right-of-Way within sixty (60) days of the date on which the Person filed the application with the City Engineer.
A. The City Engineer may withhold, deny or delay its consent to a Person’s application to occupy or use the Right-of-Way based on the Person’s failure to possess the financial, technical and 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 Engineer denies a Person’s application to occupy or use the Right-of-Way, the City Engineer shall provide the reasons in writing for denying the application, and shall provide any information reasonably requested by that Person necessary to obtain the City’s consent to occupy or use the Right-of-Way.
(2) The City Engineer’s grant of consent for a Person to occupy or use the 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 Right-of-Way.
(f) Application to Existing Franchise or Agreement. For purposes of this Chapter, an effective Franchise or Agreement with the City shall be deemed consent authorizing the Occupancy or use of the Right-of-Way to the extent described in the Franchise or Agreement. Any occupancy or use of the Right-of-Way beyond that authorized by the Franchise or Agreement shall require additional consent for such additional occupancy or use. Service Providers shall comply with all other provisions of this Chapter except if there is a direct conflict between a specific provision in the Franchise or Agreement and the provisions of this Chapter, the Franchise or Agreement shall control.
(Ord. 2007-124. Passed 12-18-07.)