(a) Application Required for Approval to Occupy or Use Public Right-of-Way.
(1) The following Service Providers shall apply to the City and secure the review of the Planning & Zoning Commission in accordance with City Charter Article X, Section 10.06, in order to occupy or use the Public Right-of-Way who:
A. 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;
B. Has an existing System, Facilities or Private Facilities in the Public Right-of-Way on the effective date of this Chapter but is planning a Capital Improvement to existing Facilities or to construct any additional Facilities anywhere in the City.
(2) The application for approval to occupy or use the Public Right-of-Way shall include the following information with respect to the applicant Service Provider's planned or existing System and/or Facilities in the Public Right- of-Way as well as plans or any planned Capital Improvements anticipated to occur within the succeeding twelve (12) month period:
A. The identity and federal tax identification number of the applicant, and the name, address and business and emergency telephone numbers of the responsive officer, agent or employee of the applicant.
B. A general description of the Services to be provided by the applicant Service Provider over its System or Facilities.
C. A description of the type of transmission medium to be used by the applicant Service Provider to operate a System.
D. A description of the proposed Facilities in the City's Public Right- of-Way, all in sufficient detail to identify:
1. The location and route of the applicant Service Provider's proposed Facilities.
2. The location of all known existing Overhead and/or Underground Facilities in the Public Right-of-Way along proposed route of the applicant Service Provider's proposed Facilities that is sufficient to show the impact of the applicant's Facilities on other existing Facilities.
3. The location of all known overhead and underground utility easements affected by the services to be provided.
E. A preliminary construction schedule and completion date for all pending or anticipated Capital Improvements to occur within the succeeding twelve (12) month period.
F. If the applicant 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 Service Provider is currently providing Service and a schedule for build-out of the entire area addressed by the permit, if applicable.
G. Evidence that the applicant Service Provider has complied, or will comply, with indemnification, insurance, performance bond and construction bond requirements of this Chapter.
H. Information sufficient to determine that the applicant Service Provider has received any certificate of authority required by the PUCO to operate a System and provide Services in the City.
I. Such other and further information as may reasonably relate to the applicant Service Provider's planned or existing System and/or Facilities in the Public Right-of-Way as well as plans or any planned Capital Improvements anticipated to occur within the succeeding twelve (12) month period.
(3) Upon receipt of an application by a Service Provider for approval to occupy or use the Public Right-of-Way, the City shall forthwith refer the application to its Police Department for review and determination of the impact of the proposed Facilities or System on the pedestrian and traffic safety, and schedule a hearing on the Service Provider's application for approval on the agenda of the Planning & Zoning Commission, so that the matter is heard within forty-five (45) days of the date on which the application was filed with the City.
(4) Within fifteen (15) days of said hearing the Planning & Zoning Commission shall issue its findings and report as follows:
A. To determine compliance of this code section by the Service Provider through its application to occupy or use the Public Right- of-Way based on whether the Service Provider possesses the financial, technical and managerial resources necessary to protect the public health, safety and welfare, or based upon the report of the Police Department concerning pedestrian or safety factors, for other reasons based on the health, safety and welfare of the City and in accordance with Ohio law or applicable regulation.
1. If the Planning & Zoning Commission determines non-compliance by a Service Provider in its application to occupy or use the Public Right-of-Way, the Planning & Zoning Commission shall provide its reasons in writing for its determination of non- compliance, and shall identify any additional information necessary in order for the Service Provider to demonstrate compliance with the provisions of this code section and to occupy or use the Public Right-of-Way.
B. If the Planning & Zoning Commission determines compliance of the provisions of this code section through the application of a Service Provider to occupy or use the Public Right-of-Way, the City shall provide the Service Provider with a Right-of-Way occupancy permit which shall set forth the specific terms and conditions of its occupancy and use.
(5) Each Service Provider submitting an application for approval to occupy or use the Public Right-of-Way shall pay a fee to reimburse the City for its actual administrative costs related to the application as provided in Section 1032.07. A Service Provider may exercise its right of review of such fee as provided by PUCO regulation.
(b) Application to Existing Franchise Ordinances, Agreements, or Operation Under a PUCO Tariff. For purposes of this Chapter, any Service Provider who operates under either a franchise ordinance, written agreement, or PUCO tariff, shall be deemed to be in compliance with a Service Provider's occupancy or use of the Public Right-of-Way to the extent described in the agreement, franchise ordinance, or PUCO tariff. The Service Provider's use of the Public Right- of-Way beyond that authorized by the agreement, franchise ordinance, or PUCO tariff shall require compliance under this section for such additional occupancy or use. Service Providers shall comply with the registration provisions and construction standards to the extent that the provisions of this Chapter do not directly conflict with the agreement, franchise ordinance, or PUCO tariff. If there is a direct conflict between an agreement, franchise ordinance, or PUCO tariff in effect prior to the adoption of the provisions of this Chapter, the agreement, franchise ordinance, or PUCO tariff shall control.
(c) Service Provider Insurance. As a condition of the approval 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 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) 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, with proof thereof furnished to the City. 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 ninety (90) days after receipt by the City, by registered mail, of a written notice addressed to the City of such intent to cancel or not to renew."
(3) Within sixty (60) days after receipt by the City of said notice, and in no event later than thirty (30) days prior to said cancellation, the Service Provider shall obtain and furnish to the City replacement insurance policies meeting the requirements of this Section.
(4) Upon written application to, and written approval by, the City, a Service Provider may be self-insured to provide all of the same coverages as listed in this Section; however, a public utility subject to jurisdiction of the PUCO and operating under its tariff that has established a self-insurance fund that complies with the laws and regulations of the State of Ohio shall satisfy this requirement by simply providing information to the City relating to such self-insurance fund and the appropriate contact point for matters relating to that fund.
(d) General Indemnification. Each application for approval 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 third party claims (including 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 (for the construction, 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 or in accordance with federal and/or state regulation. (Ord. 49-2018. Passed 7-24-18.)