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For purposes of this chapter, the following terms, phrases, words, and their derivations have the meanings set forth herein. When not inconsistent with the context, words in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning.
(a) "Applicant" means any Person applying for a Right-of-Way Permit hereunder.
(b) "Best Efforts" means the best reasonable efforts under the circumstances, taking into consideration, among other appropriate matters, all applicable laws, regulations, safety, engineering and operational codes, expedition, available technology, weather conditions, field conditions, human resources and cost.
(c) "Chapter" means Chapter 907 of the Codified Ordinances of the City, as amended from time to time, and any Regulations adopted hereunder.
(d) "City" means the City of Reynoldsburg, Ohio.
(e) "Comment Period" has the meaning set forth in Section 907.10(A).
(f) "Council" means the legislative body of the City.
(g) "Director" means the City Public Service Director.
(h) "Force Majeure" means a strike, act of God, act of public enemy, order of any kind of a government of the United States of America or of the State of Ohio or any of their departments, agencies or political subdivisions; terrorism, riot, epidemic, landslides, lightning, earthquake, fire, tornado, storm, flood, civil disturbance, explosion, partial or entire failure of a utility or any other cause or event not reasonably within the control of the party disabled by such Force Majeure, but only to the extent such disabled party notifies the other party as soon as practicable regarding such Force Majeure and then for only so long as and to the extent that, the Force Majeure prevents compliance or causes noncompliance with the provisions hereof.
(i) "Franchise" means a valid service permit or franchise issued by the City pursuant to the Reynoldsburg City Charter, the Reynoldsburg City Code or Constitution and laws of Ohio or the United States, and accepted by any Person, pursuant to which such Person may operate or provide natural gas, electric, cable television, communication or other utility services to consumers within the City.
(j) "General Right-of-Way Permit" shall have the meaning set forth in Section 907.03(b)(1).
(k) "Governmental Purposes" means those purposes classified as governmental under Ohio law, as well as:
(1) Street lighting to the extent provided by the City;
(2) Water utility service; and
(3) Any other City utility service to the extent such other City utility service is provided to City facilities.
(l) "Leaseback" means the sale or transfer of property by a Permittee to another Person contemporaneously followed by the leasing of the property to the Permittee on a long term basis, that are not operated or controlled by said lessee, and are operated or controlled by the Permittee.
(m) "Limited Right-of-Way Permit" shall have the meaning set forth in Section 907.03(b)(2).
(n) "Permittee" means any Person issued a General or Limited Right-of-Way Permit pursuant to this chapter to use or occupy all or a portion of the Rights-of-Way in accordance with the provisions of this chapter and said Right-of-Way Permit.
(o) "Person" means any natural person or any association, firm, partnership, joint venture, corporation, or other legally recognized entity, whether for-profit or not-for-profit.
(p) "Public Property" means any real property owned by the City or easements held or used by the City, other than a Right-of-Way.
(q) "Regulation" means any rule developed by the Director pursuant to the authority of this chapter, and the procedure set forth in Section 907.10, to carry out its purpose and intent.
(r) "Residential Purposes" means residential use of Right-of-Way for such uses as mailboxes, trees, decorative purposes or any curb cuts and driveways, and as may be further defined in the Regulations.
(s) "Right-of-Way" means the surface of and the space above and below the paved or unpaved portions of any public street, public road, public highway, public freeway, public lane, public path, public way, public alley, public court, public sidewalk, public boulevard, public parkway, public drive and any other land dedicated or otherwise designated for the same, including but not limited to public easements for commercial corridor improvements, now or hereafter held by the City which shall, within its proper use and meaning in the sole opinion of the Director, entitle a Permittee, in accordance with the terms hereof and of any Right-of-Way Permit, to the use thereof for the purpose of installing or operating any poles, wires, cables, transformers, conductors, ducts, lines, mains, conduits, vaults, manholes, amplifiers, appliances, attachments or other property or facilities as may be ordinarily necessary and pertinent to the provision of natural gas, electric, cable television, communications or other utility services as set forth in any Franchise or any Right-of-Way Permit. "Right-of-Way" shall not include private easements or Public Property, except to the extent the use or occupation of Public Property is specifically granted in a Right-of-Way Permit or by Regulation.
(t) "Right-of-Way Board" shall have the meaning set forth in Section 907.03(f).
(u) "Right-of-Way Permit" means the non-exclusive grant of authority to use or occupy all or a portion of City's Rights-of-Way granted pursuant to this chapter.
(v) “Right-of-Way Related Costs" means the total costs, to the greatest extent permitted by law, to the City of planning, regulating, purchasing, maintaining and governing the Rights-of-Way, including any costs of joint planning, enforcement of this chapter, and related costs and overheads, including but not limited to an appropriate allocation of the costs of any geographic information systems utilized by the City.
(Ord. 32-05. Passed 5-9-05; Ord. 84-05. Passed 10-24-05.)
(a) The purpose of this chapter is to provide for the regulation of the use or occupation of all Rights-of-Way in the City, the issuance of Right-of-Way Permits to Persons for such use or occupancy and to set forth the policies of the City related thereto.
(b) A Right-of-Way Permit issued pursuant to this chapter does not take the place of any Franchise, service permit, license, or permit which may be additionally required by law, including any required by Chapter 901, Reynoldsburg City Code. Each Permittee shall obtain any and all such additional state, federal or city franchises, licenses or permits necessary to the operation and conduct of its business or the occupation or use of any Right-of-Way; provided, however, that no Permittee holding a valid Right-of-Way Permit shall be required to obtain a Franchise for any type of services rendered by said Permittee for which the City did not require Franchises at the time said Permittee's Permit was last issued or renewed. Should there be a direct conflict between the provisions of this chapter and a valid Franchise, the provisions of the Franchise shall prevail; provided, however, that additional obligations shall not be construed as a conflict.
(c) The Director is hereby directed and empowered to enforce the provisions of this chapter.
(d) The City's policy regarding Rights-of-Way is:
(1) To promote the utilization of Rights-of-Way for the public health, safety and welfare and to promote economic development in the City;
(2) To promote the availability of a wide range of utility, communication and other services, including the rapid deployment of new technologies and innovative services, to the City's residents and taxpayers at reasonable costs;
(3) To promote cooperation among the Permittees and the City in the occupation of Rights-of-Way, and work therein, in order to minimize public inconvenience during Right-of-Way work, and eliminate wasteful, unnecessary or unsightly duplication of facilities;
(4) To promote public safety and protect public property;
(5) To ensure adequate public compensation for private use of the Rights-of-Way and the costs related thereto, including the regulation thereof;
(6) To promote and require reasonable accommodation of all uses of Rights-of-Way; and when all requests for Right-of-Way use cannot be accomplished, to give priority for use of Rights-of-Way, in the order indicated, from highest to lowest, to the following users:
A. The City for Governmental Purposes;
B. Another governmental entity for Governmental Purposes with the City's concurrence, or other governmental use required by law;
C. General Right-of-Way Permittees and proprietary uses by the City; and
D. Limited Right-of-Way Permittees; provided, however, that the Director may reasonably require cooperation and accommodation among Permittees in the public interest; and
(7) To assure that Applicants have the financial, technical and managerial resources to comply with this chapter and the provisions of any Right-of-Way Permit issued hereunder; provided that, for purposes of this chapter, an Applicant possessing valid certification or other valid authority to operate pursuant to authority granted to the Public Utilities Commission of Ohio, including certification pursuant to R.C. 4933.81 et seq., for the services to be provided by the facilities subject to this chapter shall be presumed to possess the requisite financial, technical and managerial resources, unless otherwise shown by clear and convincing evidence.
(e) All Right-of-Way Permits granted hereunder shall be non-exclusive and no property right of any nature shall be created by the granting of a Permit under this chapter.
(f) This chapter does not apply, and nothing herein should be construed to apply the provisions of this chapter, to structures or facilities owned or operated by the City or any City operations that occupy or use the Rights-of-Way. Further, the costs imposed by the City's occupancy or use of the Rights-of-Way shall not be included in the costs to the City to manage and maintain the Rights-of-Way. It is specifically contemplated, however, that all City Departments or Divisions that utilize the Rights-of-Way shall carry out their operations in a manner consistent with the policy set forth in this chapter, including participation and cooperation in all joint planning hereunder and identification of structures and facilities located in the Rights-of-Way.
(Ord. 32-05. Passed 5-9-05.)
(a) Unless otherwise permitted pursuant to the Reynoldsburg City Codes, no Person shall use, occupy, construct, own or operate structures or facilities in, under or over any Rights-of-Way or any Public Property within the City unless such Person first obtains a Right-of-Way Permit and conforms to the requirements set forth therein and in this chapter; provided, however, that Right-of-Way Permits shall not be required for the following uses:
(1) Newspaper Stands;
(2) Carts;
(3) Sidewalk Cafes;
(4) Awnings;
(5) Bus stops;
(6) Any Governmental or other municipal use by the City;
(7) Other uses not incompatible with the City policies as specified in this Chapter 907 as approved by the Director; and
(8) Residential Purposes, so long as, in the opinion of the Director, such use:
A. Has received or will receive all other necessary permits, including any under Chapter 901, Reynoldsburg City Code;
B. Is not inconsistent with policy of the City;
C. Does not adversely affect the public health, safety or welfare; and
D. Does not materially interfere with the other lawful use of the Right-of-Way.
The Director shall develop Regulations controlling and further defining Residential Purposes and to otherwise implement the determinations to be made under this Section. Such Regulations shall, among other matters, specify that the owner of facilities that holds title to such facilities solely as a result of a Leaseback shall not be subject to the provisions of this chapter. "Leaseback" means the sale or transfer of property by a Permittee to another Person contemporaneously followed by the leasing of the property to the Permittee on a long term basis, that are not operated or controlled by said lessee, and are operated or controlled by the Permittee, are not considered to be using, occupying, owning or operating such facilities, for purposes of this chapter, solely as a result of such leaseback.
(b) The following types of Right-of-Way Permits are available:
(1) General Right-of-Way Permit. Right-of-Way Permit granted to Persons who desire and are granted authority to utilize Rights-of-Way generally for business purposes including the provision of utility, cable television, communications or other services to the City, its residents and taxpayers; and
(2) Limited Right-of-Way Permit. Right-of-Way Permit granted to a Person for a specific, limited use of the Rights-of-Way or a specific portion thereof as further delineated in such Permit. A Limited Right-of-Way Permit shall not be available to any Person for use of more than one (1) mile of Right-of-Way. Limited Right-of-Way Permits may be granted for any amount of Right-of-Way to agencies of the government of the United States, the State of Ohio, or its political subdivisions for Governmental Purposes.
Nothing in this chapter should be construed to preclude the City from requiring any Person offering any natural gas, electric, cable television, communications or other utility services for which the City may lawfully require a Franchise, to acquire a Franchise upon the expiration of any Right-of-Way Permit issued hereunder.
(c) Any such Right-of-Way Permit may also allow the use of specified Public Property for the uses set forth in the Right-of-Way Permit and in this chapter.
(d) Each Right-of-Way Permit shall specify the use or uses for which it is granted and contain such other non-discriminatory terms and conditions as are appropriate and as are set forth in the Regulations.
(e) Unless otherwise set forth herein, Right-of-Way Permits or the rights of a Permittee thereunder are not transferable without the prior express written approval of the Director, upon written request. Such request shall contain evidence that the proposed transferee is subject to the jurisdiction of the Public Utilities Commission of Ohio, possesses a valid certification from the Public Utilities Commission of Ohio, including certification pursuant to R.C. 4933.81, et seq., and/or is recognized on the rolls of the Public Utilities Commission of Ohio for the services to be provided by the facilities subject to this chapter. The Director shall develop regulations providing procedures for transfer of Right-of-Way Permits that shall include provisions providing that all requests for transfer shall be deemed approved if the Director does not disapprove the same within thirty (30) days of receipt of the completed written transfer request, and transfer to affiliates under common ownership and control with the Permittee shall not require approval, so long as the Director is provided thirty (30) days written notice of such transfer.
(f) There is hereby created a Right-of-Way Board, consisting of the Director, the Chair of Council's Service Committee and the City Engineer. The Right-of-Way Board shall act by majority vote and each of its members may designate an alternate, in writing, to perform such member's duties and obligations in such member's absence. The Director shall act as chair of the Right-of-Way Board.
(Ord. 32-05. Passed 5-9-05; Ord. 84-05. Passed 10-24-05.)
(a) Applications for a General Right-of-Way Permit by a holder of a Franchise shall be filed with the Director in such form and in such manner as the Regulations require. There shall be no application fee. Any Person holding a valid Franchise shall be granted a General Right-of-Way Permit. Such General Right-of-Way Permit shall be valid so long as the underlying Franchise is valid and the applicable provisions of that Franchise, the Right-of-Way Permit and of this chapter are complied with; provided, however, that such Right-of-Way Permit shall only relate to and entitle the Permittee to utilize the Rights-of-Way, in accordance with this chapter, for purposes directly related to the provision of the specific services for which it has a Franchise. Any other Right-of-Way use by such Permittee shall require a separate or amended Right-of-Way Permit issued pursuant to Section 907.04(b).
(b) All other applications for General Right-of-Way Permits, or amendments or renewals thereof, shall be filed with the Director in such form and in such manner as the Regulations require, along with an application fee of Five Hundred Dollars ($500.00). The Director shall determine if the application is in order and shall, within forty-five (45) days of the receipt of a complete application, issue a written report regarding such application. The report shall recommend that the Right-of-Way Board deny or grant the Right-of-Way Permit, subject to any appropriate terms and conditions, in accordance with the criteria set forth in this chapter. The Director's report shall be served upon the Applicant by mail along with a notice of when the Right-of-Way Board will consider the same. The Right-of-Way Board shall then consider such recommendation and make a final determination in writing, within fifteen (15) days of the Director's report, as to whether or not such Right-of-Way Permit should be granted and if so, upon what terms and conditions. The term of each such General Right-of-Way Permit shall be for ten (10) years from issuance, or such lesser term as the Applicant requests.
(c) An application for a Limited Right-of-Way Permit, or renewal thereof, shall be filed in such form and in such manner as the Regulations require, along with an application fee of either:
(1) Fifty Dollars ($50.00) for a Limited Right-of-Way Permit for Residential Purposes; or
(2) Two Hundred Fifty Dollars ($250.00) for all others.
If the Director determines that the application is in order and that the criteria set forth in Section 907.05 have been met, and that the application should be granted, the Director shall, within forty-five (45) days of a receipt of a completed application, conditionally grant or renew such a Right-of-Way Permit subject to any appropriate terms and conditions or deny the same. The Director's conditional grant, renewal or denial shall be served upon the Applicant by mail. Such conditional denial, grant or renewal shall become final unless modified or rejected by the Right-of-Way Board within fifteen (15) days of issuance by the Director. The term of such Limited Right-of-Way Permits shall be three (3) years from issuance, or such lesser term as the Applicant requests. A Limited Right-of-Way Permit for Residential Purposes may be granted for an indefinite term from issuance, but may be cancelled by the Director with sixty (60) days written notice.
(d) Any Applicant may appeal the failure of the Director to conditionally grant a Right-of-Way Permit, or to recommend it to be granted upon terms and conditions acceptable to the Applicant, to the Right-of-Way Board. In order to perfect such appeal, the Applicant shall file, within ten (10) days of the Director's determination or recommendation, or within forty-five (45) days of the filing of the application if the Director has taken no action, an appeal to the Right-of-Way Board. The Right-of-Way Board shall then review the matter and after affording the Applicant an opportunity to be heard either in person or in writing render a final determination within fifteen days of the filing of the appeal, unless such period is waived by the Applicant. Except to the extent otherwise appealable by law, the Right-of-Way Board's decision shall be final with regard to all decisions regarding Limited Right-of-Way Permits. Decisions of the Right-of-Board regarding General Right-of-Way Permits may be appealed to City Council. Such appeal shall be filed with the clerk of Council in such form as the Regulation requires, within fifteen days of the decision appealed from. Decisions of Council on such appeals shall be final.
(e) Any Right-of-Way Permittee shall, within thirty (30) days of the granting or renewal of any Right-of-Way Permit hereunder, if and as applicable, pay a pro-rata portion of the fees required by Section 907.07(b) or (c); provided, however, that should the Permittee appeal, and during the pendency thereof the Permittee does not use or occupy any Right-of-Way, the Permittee shall not be required to pay such pro-rata portion of said fees until such appeal has been finally determined.
(Ord. 32-05. Passed 5-9-05.)
(a) A General Right-of-Way Permit shall be granted to any Applicant holding a valid Franchise.
(b) Except as provided in Section 907.05(a) and (c), a General or a Limited Right-of-Way Permit shall be granted to an Applicant upon a determination that:
(1) The granting of the Right-of-Way Permit will contribute to the public health, safety or welfare in the City;
(2) The granting of the Right-of-Way Permit will be consistent with the policy of the City as set forth in Section 907.02(d); and
(3) The Applicant is not delinquent on any taxes or other obligations to the City, Franklin County, Fairfield County or Licking County and has the requisite financial, managerial and technical ability to fulfill all its obligations hereunder.
(Ord. 32-05. Passed 5-9-05.)
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