(a) Findings and Purpose.
(1) The City of Sidney, Ohio (the "City") is vitally concerned with the control and use of all rights-of-way in the City as such rights-of-way are a valuable and limited resource which must be utilized to promote the public health, safety, and welfare including the economic development of the City.
(2) Changes in the public utilities and communication industries have increased the demand and need for access to rights-of-way for the placement of facilities and structures therein.
(3) It is necessary to comprehensively plan and manage access to, and the placement of structures and facilities in, the rights-of-way to promote efficiency, discourage uneconomic duplication of facilities, lessen the public inconvenience of uncoordinated work in the rights-of-way, and promote the public health, safety, and welfare.
(4) It is the policy of the City to obtain the reasonable fair market value for the sale or disposition of any property interest that is no longer needed for use as a right-of-way.
(5) The City has authority under the Laws and Constitution of the State of Ohio, including but not limited to Article 18, Sections 3, 4 and 7, to regulate public and private entities which use the rights-of-way.
(b) Scope. The provisions of this chapter shall apply to all users of the rights-of-way as provided herein. To the extent that anything in this chapter conflicts with any other provision of the Codified Ordinances, then the provisions of this chapter shall control.
(c) Definitions. For the 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. References hereafter to "sections" are, unless otherwise specified, references to sections in this chapter. Defined terms remain defined terms whether or not capitalized.
(1) "Affiliate" means each person who falls into one or more of the following categories: (i) each person having, directly or indirectly, a controlling interest in a provider, (ii) each person in which a provider has, directly or indirectly a controlling interest, (iii) each officer, director, general partner, limited partner or shareholder holding an interest of fifteen percent or more, joint venturer or joint venture partner, of a provider, and (iv) each person, directly or indirectly, controlling, controlled by, or under common control with the provider; provided that affiliate shall in no event mean any limited partner or shareholder holding an interest of less than fifteen percent of such provider, or any creditor of such provider solely by virtue of its status as a creditor and which is not otherwise an affiliate by reason of owning a controlling interest in, being owned by, or being under common ownership, common management, or common control with, such provider.
(2) "Applicant" means any person who seeks to obtain a certificate of registration and/or a permit.
(3) "Application" means the process by which an applicant submits a request to obtain certificate of registration and/or a permit.
(4) "Application fee" means the fee paid to the City for application for a certificate of registration pursuant to Section 907.03(a).
(5) Reserved.
(6) "Bankruptcy Code" means the United States Bankruptcy Code of 1978, as amended including regulations promulgated by Title 11 of the United States Code.
(7) "Best effort(s)" means the best reasonable efforts under the circumstances, taking into consideration, among other appropriate matters, all applicable laws, regulations, safety, engineering and operational codes, available technology, human resources, and cost.
(8) "Cable franchise" means the same as "franchise" in the Cable Communications Policy Act of 1984 98 Stat. 2779, 47 U.S.C.A. 522.
(9) "Cable operator" means the same as in the Cable Communications Policy Act of 1984 98 Stat 2779 47 U.S.C.A. 522.
(10) "Cable service" means the same as in the Cable Communications Policy Act of 1984, 98 Stat 2779 47 U.S.C.A. 522.
(11) "Certificate of registration" means the document issued to each provider and its unique system to occupy the rights-of-way within the City that outlines the terms of that occupancy of the rights-of-way.
(12) "City" means the City of Sidney, Ohio.
(13) "City Law Director" means the duly appointed City Law Director of the City of Sidney, Ohio.
(14) "City Council" means the governing body of the City of Sidney, Ohio.
(15) "City Finance Officer" means the duly appointed Finance Officer of the City of Sidney, Ohio.
(16) "City Manager" means the administrative head of the municipal government known as the City of Sidney, Ohio, or his/her designee.
(17) "Code (or CO.)" means the codified ordinances of the City of Sidney, Ohio.
(18) "Confidential/proprietary information" means all information that has been either identified or clearly marked as confidential/proprietary by the provider prior to any submission. Upon receipt of such clearly marked confidential/proprietary information from a provider, the City shall endeavor, in accordance with the requirements of Ohio R.C. Chapter 149 (the Ohio Public Records Act), to use all the same reasonable measures and exercise the same degree of care that the City uses to protect its own information of such a nature from disclosure to third parties. In the event that the City receives a request from a third party for disclosure of information a provider has clearly marked as confidential/proprietary information, then the City shall respond as required by Ohio R.C. Chapter 149, but will attempt to use all reasonable means to notify the provider as soon as possible.
(19) "Construct" means, but not be limited to, digging, boring, tunneling, trenching, excavating, obstructing, installing wires, installing conduit, installing pipes, installing transmission lines, installing poles, installing signs or other appurtenances such as benches, fences, etc., or installing facilities, other than landscaping, ornamental plantings in, on, above, within, over, below, under or through any part of the rights-of-way. Construct shall also include the act of opening and/or cutting into the surface of any paved or improved surface that is any part of the right-of-way.
(20) "Construction" means, but not limited to, the act or process of digging, boring, tunneling, trenching, excavating, obstructing, installing wires, installing conduit, installing pipes, installing transmission lines, installing poles, installing signs or installing facilities, other than landscaping, ornamental plantings in, on, above, within, over, below, under or through any part of the rights-of-way. Construction shall also include the act of opening and/or cutting into the surface of any paved or improved surface that is part of the right-of-way.
(21) "Construction bond" means a bond posted to ensure proper and complete construction and/or repair of a facility and the affected rights-of-way pursuant to a permit.
(22) "Construction and major maintenance plan" means a written plan including maps of the expected location, design, other related equipment and facilities of a provider which describes in full the construction intended to be accomplished by the provider in the rights-of-way over the next calendar year.
(23) "County" means Shelby County, Ohio (except for the purpose of the provisions of sewer and water service within or through the City). County specifically excludes any and all contractors, agents or other persons acting on behalf of said county.
(24) "Credible" means worthy of being believed.
(25) "Emergency" means a condition that poses a clear and immediate danger to life or health, or of a significant loss of property.
(26) "Engineering standards" means the comprehensive technical standards and design criteria developed by the City to ensure quality and uniformity of the public infrastructure and various construction improvements within Sidney, Ohio. The City engineering standards have been approved by the City Council and are periodically amended and approved by City Council resolution to ensure best practice procedures.
(27) "Facility(ies)" means any tangible thing located in any rights-of-way within the City; but shall not include boulevard plantings, ornamental plantings or gardens planted or maintained in the rights-of-way between a person's property and the street edge of pavement.
(28) "FCC" means the Federal Communications Commission or any successor thereto.
(29) "Full" means unable to accommodate any additional facilities as determined by the City Manager in accordance with the principles of public health, safety and welfare, following a reasonable analysis taking into consideration all applicable law; commonly accepted industry standards; and routine engineering practices.
(30) "In" when used in conjunction with rights-of-way, means in, on, above, within, over, below, under or through a rights-of-way.
(31) "Inspector" means any person authorized by the City Manager to carry out inspections related to the provisions of this chapter.
(32) "Law" means any local, State and/or Federal legislative, judicial or administrative order, certificate, decision, statute, constitution, ordinance, resolution, regulation, rule, tariff or other requirement in effect either at the time of execution of this chapter or at any time during the location of, and/or while a provider's facilities are located in the public rights-of-way.
(33) "Minor maintenance permit" means a permit which must be obtained before a person can perform minor maintenance, as set forth in Section 907.17, in or on the rights-of-way.
(34) "Ohio Manual of Uniform Traffic Control Devices" means the uniform system of traffic control devices promulgated by the Ohio Department of Transportation pursuant to Ohio R.C. 4511.09.
(35) "O.R.C." means the Revised Code of the State of Ohio.
(36) "Ohio Utility Protection Service" means the utility protection service as defined in Ohio R.C. 153.64 and/or 3781.26 or a statutory successor thereto.
(37) "Permit" means a right-of-way permit or a minor maintenance permit, as the context requires.
(38) "Permit cost" means all direct, incidental and indirect costs actually incurred or realized by the City for permit issuance, permit oversight and pavement degradation resulting from construction activity.
(39) "Permit fee" means money paid to the City for a permit to construct, work, and/or occupy a portion of the rights-of-way as required by this chapter.
(40) "Permittee" means any person to whom a right-of-way permit and/or minor maintenance permit has been granted by the City and not revoked.
(41) "Person" means any natural or corporate person, business association or other business entity including, but not limited to, a partnership, a sole proprietorship, a political subdivision, a public or private agency of any kind, a utility, a successor or assign of any of the foregoing, or any other legal entity.
(42) "Property interest" means the City's fee simple estate or any lessor estate or interest in all of any part of a right-of-way.
(43) "Provider" means a person who owns or operates a system and has a valid certificate of registration. The City, county, and cable television operators operating pursuant to a valid cable franchise shall also be considered providers.
(44) "Public Works Department" means the Public Works Department of the City.
(45) "Public Works Director" means the duly appointed Public Works Director of the City of Sidney, Ohio or his/her designee.
(46) "PUCO" means the Public Utilities Commission of Ohio as defined in Ohio R.C. 4901.02.
(47) "Registration maintenance fee" means the money paid to the City to maintain a certificate of registration and compensate the City for all actual costs incurred by the City in the management, administration and control of the rights-of-way of the City, and which are not reasonably recoverable by the City through right-of-way permit fees or other approved recovery mechanisms.
(48) "Removal bond" means a bond posted to ensure the availability of sufficient funds to remove a provider's facilities upon abandonment or disuse, or discontinuance of a provider's use or occupation of the rights-of-way.
(49) "Restoration" means the process and the resultant effects by which a rights-of-way is returned to a condition as good as or better than its condition immediately prior to the construction. Restoration shall occur in accordance with the Rules and Regulations for Making Openings in a Public Way as amended from time to time.
(50) "Right(s)-of-way" means the surface and space in, above, within, over, below, under or through any real property in which the City has an interest in law or equity, whether held in fee, or other estate or interest, or as a trustee for the public, including, but not limited to any public street, boulevard, road, highway, freeway, lane, alley, court, sidewalk, parkway, river, tunnel, viaduct, bridge, conduit, or any other place, area, or real property owned by or under the legal or equitable control of the City that, consistent with the purposes for which it was intended, may be used for the purposes of constructing, operating, repairing, or replacing a system. Rights-of-way shall not include buildings, parks, or other public property or easements that have not been intended for compatible uses, except to the extent the use or occupation of such property is specifically granted in a permit or by law.
(51) "Right(s)-of-way cost" means all direct, incidental and indirect costs borne by the City for the management and administration of the rights-of-way and this chapter.
(52) "Right-of-way permit" means the permit specified in Section 907.15 and further defined by this section which must be obtained before a person may construct in, locate in, occupy, maintain, move or remove facilities from, in or on a rights-of-way.
(53) "Rule(s) and regulation(s)" means any rules or regulations adopted by the City Manager pursuant to Section 907.06(e).
(54) "Service(s)" means the offering of any service for a fee directly to the public, or to such classes of users as to be effectively available directly to the public.
(55) "Supplementary application" means any application made to construct on or in more of the rights-of-way than previously allowed or to extend a permit that had already been issued.
(56) "Surety fund" means a formal pledge made to secure against loss, damage or default.
(57) "System" means any system of conduit, cables, ducts, pipes, wires, lines, towers, vaults, manholes, antennae wave guides, optic fiber, microwave, laser beams and any associated converters, equipment or facilities or utilities or other such structures designed and constructed for the purpose of producing, receiving, amplifying, delivering or distributing services within the City. A system shall specifically include, but not necessarily be limited to: electric distribution and/or transmission systems, natural or artificial gas distribution and/or transmission systems, water distribution systems, storm sewer systems, sanitary sewer systems, cable television systems, telecommunications systems (whether voice, video, data, or other), fiber optic systems, wireless communications systems, and transit electrification systems.
(58) "System representative" means the specifically identified agent/employee of a provider who is authorized to direct field activities of that provider and serve as official notice agent for system related information. Any such system representative shall be required to be available at all times to receive notice of and immediately direct response to system related emergencies or situations.
(59) "Transfer" means the disposal by the provider, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, of fifty-one percent or more at one time of the ownership or controlling interest in the system, or fifty-one percent cumulatively over the term of a certificate of registration of such interests to a corporation, partnership, limited partnership, trust, or association or person or group of persons acting in concert.
(60) "Trenchless technology" means, but is not limited to, the use of directional boring, horizontal drilling, microtunneling, and other techniques in the construction of underground portions of facilities which result in the least amount of disruption and damage to the rights-of-way as possible.
(61) "Underground facility(ies)" means all lines, cables, conduits, pipes, posts, tanks, vaults and any other facilities which are located wholly or partially underneath rights-of-way.
(62) "Unused facility(ies)" means facilities located in the rights-of-way which have remained unused for twelve months and for which the provider is unable to provide the City with a credible plan detailing the procedure by which the provider intends to begin actively using such facilities within the next twelve months, or that it has a potential purchaser or user of the facilities who will be actively using the facilities within the next twelve months, or that the availability of such facilities is required by the provider to adequately and efficiently operate its system.
(63) "Utility(ies)" means any water, sewer, gas, drainage, sprinkler or culvert pipe and any electric power, telecommunication, signal, communication, or cable television conduit, fiber, wire, trackless trolley wires, cable, or operator thereof.
(64) "Utility corridor(s)" means those specific areas of the rights-of-way designated as such by the Public Works Director pursuant to Section 907.03(f)(1).
(65) "Working day" means any Monday, Tuesday, Wednesday, Thursday, Friday, or Saturday but excluding legal holidays observed by the City.
(Ord. A-2853. Passed 4-11-16; Ord. A-2963. Passed 4-22-19.)