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(a) The purpose and intent of this Chapter is to:
(1) Manage the Public Ways with regard to Service Providers and Services.
(2) Establish clear local guidelines and time frames for the exercise of local authority with respect to the regulation of Service Providers using the Village's Public Ways.
(3) Encourage the provision of advanced and competitive utility and telecommunications services on the widest possible basis to the businesses, institutions and residents of the Village;
(4) Permit and manage reasonable access to the Public Ways of the Village for utility and telecommunications service purposes on a competitively neutral basis.
(5) Conserve the limited physical capacity of the Public Ways held in public trust by the Village.
(6) Assure that the Village's current and ongoing costs of granting and regulating private access to and use of the Public Ways are fully paid by the Persons seeking such access and causing such costs.
(7) Reserve the right to secure fair and reasonable compensation to the Village and the residents of the Village on a competitively neutral and non-discriminatory basis for permitting private use of the Public Ways.
(8) Assure that all Service Providers providing Facilities or Services within or through the Village comply with the ordinances, rules and regulations of the Village.
(9) Assure that the Village can continue to fairly and responsibly protect the public health, safety and welfare.
(10) Enable the Village to discharge its public trust consistent with rapidly evolving federal and State regulatory policies, industry competition and technological development.
(b) For the purpose of this Chapter, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used shall indicate otherwise:
(1) Affiliate means a Person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another Person.
(2) Arterial Street means each Public Street designated as such in Appendix A.
(3) Cable Operator means a Person providing or offering to provide Cable Service within the Village as that term is defined in the Cable Communications Policy Act of 1984, codified at 47 U.S.C. § 532, et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996, as each might be further amended.
(4) Capital Improvement means a valuable addition made to enhance the value or extend the useful life of facilities, including Construction, Reconstruction, installation, rehabilitation, renovation, improvement, enlargement and extension of Facilities, but not including ordinary or Routine Maintenance and repair.
(5) Village means the Village of Silver Lake, Ohio.
(6) Village Cost means the direct and indirect costs borne by the Village for pavement management, traffic management, risk management, financial management, cost recovery, infrastructure oversight, budget analysis, record keeping, legal assistance, systems analysis, application processing and checking, issuing Permits, inspecting job sites, creating and updating mapping systems, and performing all of the other tasks required by this Chapter, including other costs the Village may incur in managing the provisions of this Chapter.
(7) Mayor means the Village Mayor, or his or her designee.
(8) Village Property means and includes all real property owned by the Village, other than Public Streets and Public Easements as those terms are defined herein, and all property held in a proprietary capacity by the Village, which are not subject to Public Way permits and franchising as provided in this Chapter.
(9) Collector Street means each Public Street designated as such in Appendix A.
(10) Construct, Construction. etc. means to Excavate, obstruct or install wires, poles, signs or physical features, other than landscaping, In the Public Way.
(11) Emergency means an unforeseen occurrence or condition calling for immediate action.
(12) Excavation or Excavate means to dig into or in any way remove or physically disturb or penetrate any part of the Public Way.
(13) Excess Capacity means the volume or capacity in any existing or future duct, conduit, manhole, or other Facility In the Public Way that is or will be available for use for additional Facilities.
(14) Facilities or System means the plant, equipment and property, including but not limited to, cables, fibers, wires, pipes, conduits, ducts, pedestals, antennae, electronics, poles, pipes, mains, plant, equipment and other appurtenances located under, on or above the surface of the ground in the Public Ways of the Village and used or to be used to transmit, receive, distribute, provide or offer Services but also including Private Facilities.
(15) In, when used in conjunction with Public Way or Public Street, means over, above, in, within, on, below or under the Public Way.
(16) Major Construction Projects means the Construction, Reconstruction, installation, maintenance or repair of a Service Provider's Facilities in the Public Way, or any Excavation of a Public Way under any of the following circumstances:
A. The extension of a Service Provider's Facility in the Public Way in an area of the Village not currently serviced by that Service Provider. This does not include New Service Orders unless a Public Street will be Excavated;
B. The relocation or replacement of more than two hundred (200) lineal feet of a Use Permit Holder's existing Facilities In the Public Way;
C. Any Reconstruction or replacement of Facilities requiring more than one (1) working day to complete work in the Public Way;
D. Any Construction, Reconstruction, installation, maintenance, repair or New Service Orders In the Public Way requiring more than one (1) working day to complete; or
E. Any Construction, Reconstruction, installation, maintenance, repair or New Service Orders requiring the Excavation of a Public Street.
(17) New Service Orders means the connection from the Service Provider's existing Facilities on private property for the purpose of providing a new Service to a customer in the Village.
(18) Other Ways means the highways, streets, alleys, Public Utility Easements or other rights-of-way within the Village, but under the jurisdiction and control of a governmental entity other than the Village.
(19) Overhead Facilities means utility poles and wires, cables and other such equipment running between and on such poles, including the underground supports and foundations for such facilities.
(21) Person means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies, trusts and individuals and include their lessors, trustees and receivers.
(22) Private Facility means the plant, equipment and property, including but not limited to, cables, fiber optics, wires, pipes, conduits, ducts, pedestals, antennae, electronics and other appurtenances used or to be used to transmit, receive, distribute or provide telecommunications or other Services between or among private buildings or facilities where there is no offer of service to the public.
(23) Public Street means the paved and unpaved portion of any street, road, boulevard, drives, highway, freeway, parkway, lane court, alley or other public right-of-way in which the Village has an interest in law or equity and which has been acquired, established, dedicated or devoted to street Purposes.
(24) Public Easement means any easement under the jurisdiction and control of the Village and acquired, established, dedicated or devoted for public purposes, including utility purposes.
(25) Public Way means the surface and space above and below any real property in which the Village has an interest in law or in equity, whether held in fee, or other estate or interest, or as trustee for the public, including but not limited to all Public Streets and Public Easements, as those terms are defined herein, sidewalks, treelawns and other property, but only to the extent of the Village's right, title, interest or authority to grant a permit or franchise to occupy and use such property for Facilities.
(26) PUCO or Public Utilities Commission of Ohio means the State Administrative agency, or lawful successor, authorized to regulate and oversee certain Service Providers and Services in the State of Ohio.
(27) Reconstruct, Reconstruction, etc. means substantial physical change to all or a portion of an existing Facility or System involving Construction In the Public Streets, Public Utility Easements, or Public Ways.
(28) Routine Maintenance means repair, upkeep, replacement or restoration of a Use Permit Holder's existing Facilities located In the Public Way that requires no more than one (1) working day to complete and is not an Emergency.
(29) Service means the offering of utilities or telecommunications for a fee directly to the public, or to such classes of users as to be effectively available to the public, regardless of the Facilities used.
(30) Service Provider means and includes every Person that directly or indirectly owns, controls, operates or manages plant, equipment or property within the Village, used or to be used for the purpose of offering Service to the public within the Village or outside of the Village's boundaries.
(31) State means the State of Ohio.
(32) Surplus Space means that portion of the Usable Space on a utility pole which has the necessary clearance from other pole users, as required by the orders and regulations of PUCO and other applicable State and local orders and regulations, to allow its use by a Service Provider for a pole attachment.
(33) Trenchless Technology means the use of directional boring, horizontal drilling and micro-tunneling and other techniques in the Construction of underground portions of Facilities that results in the least amount of disruption and drainage to the Public Way as possible.
(34) Underground Facilities means Facilities located under the surface of the ground, excluding the underground foundations or supports for Overhead Facilities.
(35) Usable Space means the total distance between the top of a utility pole and the lowest possible attachment point that provides the minimum allowable vertical clearance as specified in the orders and regulations of the PUCO.
(36) Use Permit has the meaning given to it in Section 723.02(a) of this Chapter.
(37) Utility Easement means any casement owned by a Service Provider and acquired, established, dedicated or devoted for the purpose of providing Service to the public.
(c) Preemption by State and Federal Law. Except as may be preempted by applicable State or Federal laws, rates, regulations, and orders, this Chapter shall apply and be controlling over each Service Provider engaged in the business of transmitting, supplying or furnishing of Services originating, passing through, or terminating in the Village.
(d) Use Permits. Except as otherwise provided by this Chapter, any Person who desires to Construct, Reconstruct, install, operate, maintain or otherwise locate Facilities In any Public Way of the Village for the purpose of providing Service to Persons or areas in the Village, areas outside the Village, or both, shall first obtain a Use Permit permitting the use of such Public Ways pursuant to Section 723.02
of this Chapter.
(e) Annual Registration. Except as otherwise provided by this Chapter, any and all Persons who have a Use Permit from the Village, or the equivalent thereof as provided in this Chapter, to Construct, Reconstruct, install, operate, maintain or otherwise locate Facilities in any Public Way of the Village shall register annually with the Village, on a form provided by the Village, pursuant to Section 723.03
of this Chapter.
(f) Private Facilities. Persons who wish to use any Public Way of the Village for Private Facilities shall first obtain a Use Permit, register pursuant to Section 723.03
and obtain a Construction Permit (if applicable). The applicant shall comply with Section 723.02
(b) "Use Permit Application" of this Chapter and, upon receiving a Use Permit, shall comply with all provisions of Section 723.05,
"Construction Standards," of this Chapter.
(g) Cable Television Franchise. Any Person who desires to Construct, Reconstruct, install, operate, maintain or locate Facilities In any Public Way of the Village for the purpose of providing Cable Service to Persons in the Village shall first obtain a cable television franchise from the Village as provided in Section 723.07
of this Chapter.
(h) Application to Existing Franchise Ordinances and Agreements. For purposes of this Chapter, a franchise ordinance or agreement shall be deemed a Use Permit authorizing the Franchisee's use of the Public Way to the extent described in the franchise agreement or ordinance. The Franchisee's use of the Public Way beyond that authorized by the franchise agreement or ordinance shall require a Use Permit for such additional use. Franchisees shall comply with the Registration provisions and Construction Standards to the extent that the provisions of this Chapter do not directly conflict with the franchise agreement or ordinance. If there is a conflict between the franchise agreement or ordinance and the provisions of this Chapter, the franchise agreement or ordinance shall control.
(i) Exemption for Village-Owned or Operated Facilities. Nothing in this Chapter shall be construed to apply the provisions of this Chapter to Facilities owned or operated by the Village or any of its operations.
(j) Severability. If any section, subsection, sentence, clause, phrase, or other portion of this Chapter, or its application to any Person, is, for any reason, declared invalid, in whole or in part by any court or agency of competent Jurisdiction, said decision shall not affect tile validity of the remaining portions hereof. (Ord. 98-2000. Passed 10-16-00.)
(a) Use Permits. Any Person who owns, operates or maintains, or who desires to Construct, Reconstruct, install, operate, maintain or otherwise locate, Facilities In any Public Way of the Village shall obtain a Use Permit as provided in this section. Persons with Facilities In, or constructing Facilities In, the Public Way at the time of the effective date of this Chapter shall apply for a Use Permit within ninety (90) days of the effective date of this Chapter.
(b) Use Permit Application. Any Person who is required to obtain a Use Permit pursuant to this Chapter shall file an application with the Village on a form provided by the Mayor. The application shall include the following information with respect to the applicant's existing Facilities in the Village's Public Way as well as plans for all Capital Improvements 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.
(2) The name, address and telephone number of the local officer, agent or employee responsible for the accuracy of the application and available at all reasonable times to be notified in case of emergency.
(3) A general description of the Services provided or to be provided by the applicant over its Facilities. Where Services will be provided by a nonaffiliated provider, the applicant shall identify that provider.
(4) A description of the type of transmission medium used, or to be used, by the applicant to provide such Services.
(5) Engineering plans, specifications and a network map of the applicant's Facilities located, or to be located, In the Village's Public Ways, all in sufficient detail to identify:
A. The location and route of the applicant's Facilities or proposed Facilities on a "to scale" drawing established using State Plane Coordinates and including all information requested in this section.
B. The location of all known overhead and underground public utility, utility, telecommunications, cable, water, sanitary sewer, storm water drainage and other existing Facilities in the Public Way along the route or proposed route of the applicant's Facilities or proposed Facilities that is sufficient to show the impact of the applicant's Facilities on other existing Facilities.
C. The location of all known overhead and underground Utility Easements.
(6) A preliminary Construction schedule and completion date for all Capital Improvements planned for the twelve (12) month period following the date of application.
(7) If the applicant is providing Services in the Village:
A. A description of the applicant's access and line extension policies.
B. The area or areas of the Village in which the applicant is currently serving and a schedule for build-out of the entire area addressed by the permit, if applicable.
(8) All fees, deposits or charges required pursuant to Section 723.06 of this Chapter.
(9) Information sufficient to determine that the applicant has received any certificate of authority required by the PUCO to provide Services or Facilities in the Village.
(10) Such other and further information as may reasonably be requested by the Mayor.
(c) Compliance with Financial Requirements. The application for a Use Permit shall be accompanied by evidence that the applicant has complied with indemnification, Insurance, Performance Bond and Construction Bond requirements of this Chapter.
(d) Determination by the Village. Within one hundred twenty (120) days after receiving a complete application under Section 723.02
(b), the Mayor shall issue a written determination granting or denying the application in whole or in part, applying the following standards:
(1) The applicant's compliance with the financial requirements of this Chapter.
(2) The applicant's compliance with the remaining requirements of this Chapter.
(3) If the applicant is proposing to Construct new Facilities:
A. The capacity of the Public Ways to accommodate the applicant's proposed Facilities, or to accommodate additional Facilities if the permit is issued.
B. The damage or disruption, if any, of public or private Facilities, structures, improvements, service, travel, or landscaping if the permit is issued.
C. The availability of alternate routes and/or locations for the proposed Facilities.
D. The public interest in minimizing the cost and disruption of Construction in the Public Ways.
(4) The effect, if any, on public health, safety and welfare if the permit is issued.
(5) Applicable federal and State laws, regulations and policies.
(6) Such other factors as may demonstrate that the permission to use the Public Ways will serve the community interest. If the application is denied the written determination shall include the reasons for denial.
(e) Amendment of Use Permit.
(1) A Use Permit Holder must obtain an amendment of the Use Permit to extend its Facilities or designated service area in the Village's Public Ways or to locate its Facilities In Public Ways of the Village, in areas not included in a Use Permit previously issued under this Chapter.
(2) To amend a Use Permit, the Use Permit Holder must file an application for a Use Permit for the area in which the Holder wishes to extend its Facilities and/or Service.
(3) If ordered by the Village to locate or relocate its Facilities in Public Ways not included in a previously issued Use Permit, the Village shall issue a Use Permit amendment consistent with the Village's order without further application.
(Ord. 98-2000. Passed 10-16-00.)
(a) Annual Registration Required. All Service Providers with a Use Permit, or the equivalent thereof for purposes of this Chapter, to own, operate, maintain or otherwise locate Facilities In a Public Way of the Village shall register with the Village each calendar year between January I and January 31 on a form provided by the Mayor.
(1) Update and supplement the Village's database so that the Village has accurate and current information concerning the Service Providers that own or operate Facilities, and/or provide Services, in the Village's Public Ways;
(2) Assist the Village in monitoring the usage of the Public Ways in order to ensure that the public receives the maximum possible benefit from that use and the use is consistent with the best management and care of the Public Ways;
(3) Assist the Village in the collection and enforcement of any municipal taxes, franchise fees, compliance fees or charges that may be due the Village;
(4) Assist the Village in monitoring compliance with local, State and federal laws.
(c) Information Required for Registration. Registration forms will be provided by the Village and shall require the following information:
(1) Any material changes to the information the Use Permit Holder provided the Village in any and all of the Use Permit applications for which the Holder currently has a Use Permit, including, but not limited to:
A. The identity, legal status, and federal tax identification number of the registrant, including any Affiliates.
B. The name, address and telephone number of the local officer, agent or employee responsible for the accuracy of the registration statement and available at all reasonable times to be notified in case of emergency
(2) A description of, and a preliminary Construction Schedule and completion date for, any Capital Improvements the registrant plans In the Village's Public Ways for the twelve (12) months following the date of registration, including:
A. As soon as available, a current "to scale" map or drawing that clearly locates all the proposed Capital Improvements, including horizontal and vertical information; Facility type, size, depth, and capacity; and other such relevant information. If a "to scale" map is not available, the registrant shall supply as much of the required information as is currently available, but in no event shall the description of the proposed Capital Improvement be less than by Village quadrant and/or street name and facility type. The registrant shall update all required information as soon as it becomes available.
B. A general description of the Service that the registrant intends to offer or provide over the proposed Facilities within the Village. Where a Service will be provided by a nonaffiliated provider, the registrant shall identify that provider.
C. Information sufficient to determine that the registrant has applied for and received any certificate of authority required by PUCO to provide Services or Facilities within the Village.
D. Information sufficient to determine that the registrant has applied for and received any construction permit, operating license, certification, or other approvals required by the Federal Communications Commission to provide telecommunications or Cable Services or Facilities within the Village.
(3) Such other information as the Mayor may reasonably require.
(d) Registration to be Kept Current. In addition to the annual registration requirement, each registrant shall keep all required registration information current at all times and shall provide the Village with notice of changes to the required information within fifteen (15) days following the date on which the Service Provider has notice of such change.
(e) Registration Fee. Each registrant shall pay an initial registration fee of five hundred dollars ($500.00). Each year thereafter, each registrant shall pay an annual registration fee of three hundred fifty dollars ($350.00). If the registrant has fewer than five hundred (500) feet of Facilities In the Public Way, the annual registration fee shall be one hundred dollars ($100.00). (Ord. 98-2000. Passed 10-16-00.)
(a) Nonexclusive Permit. No Use Permit granted under Section 723.02
shall confer any exclusive right, privilege, license or franchise to occupy or use the Public Ways of the Village for delivery of Services or any other purposes.
(b) Rights Permitted. No Use Permit granted under this Section shall convey any right, title or interest in the Public Ways, but shall be deemed a permit only to use and Occupy the Public Ways for the limited Purposes granted by the permit. Further, no permit shall be construed as any warranty of title.
(c) Public Way Route. A Use Permit granted under Section 723.02
(a) shall be limited to a grant to occupy the specific Public Ways and defined portions thereof.
(d) Location of Facilities. All Facilities shall be Constructed, Reconstructed, installed and located in accordance with the following terms and conditions:
(1) Facilities shall be installed within an existing compatible underground duct or conduit whenever Excess Capacity exists within such Facility.
(2) A Permit Holder with permission to install Overhead Facilities shall install its Facilities on pole attachments to existing utility poles only, and then only if Surplus Space is available.
(3) Whenever any existing electric utilities, cable Facilities, telecommunications Facilities or other similar Facilities are located underground in a Public Way of the Village, a Permit Holder with permission to occupy the same Public Way with electric utilities, cable Facilities, telecommu- nications Facilities or other similar Facilities, must also locate its Facilities underground.
(4) Whenever any new or existing electric utilities, cable Facilities, telecommunications Facilities or other similar Facilities are located or relocated underground In a Public Way of the Village, a Permit Holder that currently occupies the same Public Way with Overhead Facilities shall relocate its Facilities underground within a reasonable period of time as determined by the Mayor. Absent extraordinary circumstances or undue hardship, as determined by the Mayor, such relocation shall be made concurrently to minimize the disruption of the Public Ways and shall be carried out at the Permit Holder's expense.
(5) Except for Overhead Facilities as provided herein, no Facilities shall be located above ground In a Public Way.
(6) The Village reserves the right to require a Permit Holder to provide excess capacity in the Public Way at the time of Construction, Reconstruction, installation, location or relocation of Facilities.
(e) Excess Capacity. To reduce excavation in the Public Way, it is the Village's goal to encourage Permit Holders to share occupancy of underground conduit as well as to construct, whenever possible, excess conduit capacity for occupancy of future Facilities in the Public Way. Therefore, if a Permit Holder is constructing underground conduit in the Public Way for its own Facilities, and the Village reasonably determines such construction is in an area in which other Providers would likely construct Facilities in the future, the Village may require the Permit Holder to construct excess conduit capacity in the Public Way, provided the Permit Holder shall be reimbursed for the use of the excess capacity by another Permit Holder. The Permit Holder may charge a reasonable market lease rate for occupancy of the additional conduit space as reimbursement.
(f) Village Owned Conduit. lf the Village owns or leases conduit in the path of a Permit Holder's proposed Facilities, and provided it is technologically feasible for the Permit Holder's Facilities to occupy the conduit owned or leased by the Village, the Permit Holder shall be required to occupy the conduit owned or leased by the Village in order to reduce the necessity to Excavate the Public Way. The Permit Holder shall pay to the Village a fee for such occupancy which shall be the cost the Permit Holder would have expended to construct its own conduit, as certified by the Permit Holder's engineer and approved by the Village Engineer. The Village and the Permit Holder may agree to amortize the fee through annual payments to the Village.
(g) Construction Permits. Prior to commencing any Major Construction Projects, all Use Permit Holders are required to obtain construction permits from the Mayor pursuant to Section 723.05
of this Chapter; provided that, any Person who began a Major Construction Project prior to the effective date of this Chapter shall have ninety (90) days to apply for a construction permit.
(h) Routine Maintenance and New Service Orders.
(1) For Routine Maintenance and New Service Orders that require the Permit Holder to Excavate a Public Way, or partially obstruct or close an Arterial or Collector Public Street for less than one (1) working day, the Permit Holder shall:
A. Submit to the Village for review and approval a drawing showing the planned traffic maintenance and indicating how the Permit Holder will meet all requirements of the Ohio Department of Transportation Manual of Traffic Control Devices.
(2) A Permit Holder need not notify the Village prior to or alter commencing any Routine Maintenance or New Service Orders that do not include the Excavation of a Public Way or partial obstruction or closings of an Arterial or Collector or Public Street.
(i) Nondiscrimination. A Use Permit Holder 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 Permit Holder's Services; provided, however, that nothing in this Section 723.04
shall prohibit a Permit Holder from making any reasonable classifications among differently situated customers.
(j) Interference with the Public Ways. No Use Permit Holder may locate or maintain its Facilities so as to unreasonably interfere with the rise of the Public Ways by the Village, by the general public or by other Persons authorized to use or be present in or upon the Public Ways. All such Facilities shall be moved by the Permit Holder, temporarily or permanently, as determined by the Mayor.
(k) Damage to Property. No Use Permit Holder nor any Person acting on the Permit Holder's behalf shall take any action or permit any action to be done which may impair or damage any Village Property, Public Ways, Other Ways or other property located in, on or adjacent thereto.
(1) Maintenance of Facilities. Each Permit Holder shall maintain its Facilities in good and safe condition and in a manner that complies with all applicable federal, State and local requirements.
(m) Relocation or Removal of Facilities. Within thirty (30) days following written notice from the Village, a Use Permit Holder shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any Facilities In the Public Ways whenever the Village shall have determined that such removal, relocation, change or alteration is reasonably necessary for:
(1) The Construction, Reconstruction, repair, maintenance or installation of any Village or other public improvement in or upon the Public Ways.
(2) The operations of the Village or other governmental entity in or upon the Public Ways.
(n) Removal of Unauthorized Facilities. Within thirty (30) days following written notice from the Village, any Permit Holder, Service Provider, or other Person that owns, controls or maintains any unauthorized System, Facility or related appurtenances In the Public Ways of the Village shall, at its own expense, remove those Facilities or appurtenances from the Public Ways of the Village or shall arrange to sell those Facilities or appurtenances to the Village. After the thirty (30) days have expired, the Village may remove the Facilities or appurtenances from the Public Ways at the other party's expense. A System or Facility is unauthorized and subject to removal in the following circumstances:
(1) Upon revocation of the Permit Holder's Use Permit;
(2) Upon abandonment of a Facility in the Public Ways of the Village;
(3) If the System or Facility was Constructed, Reconstructed, installed, operated, located or maintained without the prior grant of a Use Permit, except as otherwise provided by this Chapter;
(4) If the System or Facility was Constructed, Reconstructed, installed, operated, located or maintained, or any Excavation of a Public Way was performed, without prior issuance of a required Construction Permit, except as otherwise provided by this Chapter;
(5) If the System or Facility was Constructed, Reconstructed. installed, operated, located or maintained, or any Excavation of a Public Way was performed, at a location not permitted by the Permit Holder's Use Permit or Construction Permit;
(6) If the Permit Holder fails to comply with the Registration requirements of Section 723.03 of this Chapter.
(o) Emergency Removal or Relocation of Facilities. The Village retains the right and privilege to cut or move any Facilities, or stop work on any Construction, Reconstruction, installation, operation or Excavation, located in the Public Ways of the Village, as the Village may determine to be necessary, appropriate or useful in response to any need to protect the public health, safety or welfare.
(p) Damage to Permit Holder's Facilities. Unless directly and proximately caused by the willful, intentional or malicious acts by the Village, the Village shall not be liable for any damage to or loss of any Facility In the Public Ways of the Village as a result of or in connection with any public works, public improvements, Construction, Excavation, grading, filling, or work of any kind in the Public Ways by or on behalf of the Village.
(q) Restoration of Public Ways, Other Ways and Village Property.
(1) When a Permit Holder, or any Person acting on its behalf, does any work in or affecting any Public Ways, Other Ways or Village Property, it shall, after the work is completed and at its own expense, promptly remove any obstructions therefrom and restore such ways or property, within ten (10) to thirty (30) days, at the Mayor's discretion, to as good a condition as existed before the work was undertaken, unless otherwise directed by the Village.
(2) If weather or other conditions do not permit the complete restoration required by this Section, the Permit Holder shall temporarily restore the affected ways or property. Such temporary restoration shall be at the Permit Holder's sole expense and the Permit Holder shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. A Permit Holder 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 for the safety of all members of the general public and to prevent injury or drainage to any person, vehicle or property by reason of such work in or affecting such ways or property.
(r) Facilities Maps. Each Permit Holder shall provide the Village with an accurate map or maps on a medium and in a format compatible with the Village's computer system, both hardware and software, and certifying the location of all Facilities In the Public Ways. Each Permit Holder shall provide updated maps and digital information annually at the time of registration.
(s) Duty to Provide Information.
(1) Within ten (10) days of a written request from the Mayor each Permit Holder shall furnish the Village with documentation sufficient to show that the Permit Holder has complied with all requirements of this Chapter.
(2) In addition, within ten (10) days of a written request from the Mayor, each Permit Holder shall make available for inspection by the Village at reasonable times all books, records, maps and other documents, maintained by the Permit Holder with respect to its Facilities In the Public Ways.
(t) Leased Capacity. A Permit Holder shall have the right, without prior Village approval, to offer or provide capacity or bandwidth to its customers, provided:
(1) The Permit Holder shall furnish the Village with a copy of any such lease or agreement.
(2) The customer or lessee has complied, to the extent applicable, with the requirements of this Chapter.
(u) Permit Holder Insurance. As a condition of the Use Permit, a Use Permit Holder must secure and maintain liability insurance policies insuring both the Permit Holder and the Village, and its elected and appointed officers, officials, agents, employees and representatives as additional insureds consistent with the requirements utilized by the Village for public improvement contracts to be fixed by the Mayor.
(v) General Indemnification. Each permit application shall include, to the extent permitted by law, the Permit Holder's express undertaking to defend, indemnify and hold the Village and its elected and appointed officers, officials, employees, agents, representatives and subcontractors harmless from and against any and 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 Permit Holder or its Affiliates, officers, employees, agents, contractors or subcontractors in the Construction, Reconstruction, installation, operation, maintenance, repair or removal of its 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.
(w) Performance Bond or Security Fund. To ensure the full and complete performance of this Chapter, including any costs, expenses, damages or loss the Village pays or incurs because of any failure attributable to the Permit Holder to comply with the codes, ordinances, rules, regulations or permits of the Village, each Permit Holder shall establish a permanent security fund with the Village or maintain a continuing performance bond with the Village as the Mayor may determine to protect adequately the Village's interest.
(x) Construction and Completion Bond. A Construction Bond of such type and amount as the Mayor may determine adequately protects the Village's interest shall be deposited before work is commenced.
(y) Revocation of Permit. A Use Permit granted by the Village to use or occupy Public Ways of the Village may be revoked for any one of the following reasons:
(1) Construction. Reconstruction, installation, location. operation or Excavation in the Village or In the Public Ways of the Village without a Use Permit.
(2) Construction, Reconstruction, Installation, location, operation or Excavation at an unauthorized location.
(3) Construction, Reconstruction, installation, location, operation or Excavation in violation of Village safety and/or Construction requirements.
(4) Material misrepresentation or lack of candor by or on behalf of a Permit Holder in any permit application or registration required by the Village.
(5) Abandonment of Facilities In the Public Ways.
(6) Failure to relocate or remove Facilities, or failure to restore Public Ways, as required by this Chapter.
(7) Failure to pay fees, costs, taxes or compensation when and as due the Village.
(8) Insolvency or bankruptcy of the Permit Holder.
(9) Violation of material provisions of this Chapter.
(z) Notice and Duty to Cure. In the event that the Mayor believes that grounds exist for revocation of a Use Permit or Construction Permit, he shall give the Permit Holder 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 Permit Holder a reasonable period of time not exceeding 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.
(aa) Hearing. In the event that a Permit Holder fails to provide evidence reasonably satisfactory to the Mayor as provided in Section 723.04(z) hereof, the Mayor shall provide the Permit Holder with notice and a reasonable opportunity to be heard concerning the matter.
(bb) Standards for Revocation or Lesser Sanctions. If persuaded that the Permit Holder has violated or failed to comply with material provisions of this Chapter, the Mayor shall determine whether to revoke a Use Permit, or to establish some lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors:
(1) Whether the misconduct was egregious.
(2) Whether substantial harm resulted.
(3) Whether the violation was intentional.
(4) Whether there is a history of prior violations of the same or other requirements.
(5) Whether there is a history of overall compliance.
(6) Whether the violation was voluntarily disclosed, admitted or cured.
The Mayor's decision shall be final. (Ord. 98-2000. Passed 10-16-00.)
(a) General. No Person shall commence or continue with a Major Construction Project or the Construction, Reconstruction, installation, maintenance or repair of Facilities or Excavation in the Public Ways except as provided in this Section 723.05
.
(b) Construction Codes. Facilities shall be Constructed, Reconstructed, installed, repaired, operated, Excavated and maintained in accordance with all applicable federal, state and local codes, rules and regulations including, but not limited to, the National Electrical Safety Code.
(c) Construction Permits. Except as provided in Sections 723.04
(i) and (j) of this Chapter, no Person shall Construct, Reconstruct, install, maintain or repair any Facilities, or excavate, in the Public Ways without first obtaining, a Construction Permit therefor, provided, however that:
(1) No permit shall be issued for a Major Construction Project or the Construction, Reconstruction, installation, maintenance or repair of Facilities, or Excavation, in the Public Ways unless the Service Provider has obtained a Use Permit from, and filed a registration statement with, the Village pursuant to Section 723.02 and Section 723.03, respectively, of this Chapter.
(2) No permit shall be issued for a Major Construction Project or the Construction, Reconstruction, installation, maintenance or repair of Facilities, or Excavation, without payment of the Construction Permit fee established in Section 723.06(d) of this Chapter.
(d) Applications. Applications for permits for a Major Construction Project to Construct, Reconstruct or install Facilities, or Excavate, shall be submitted upon forms provided by the Village and shall provide the following information, if applicable, and shall be accompanied by drawings, plans and specifications in sufficient detail to demonstrate:
(1) That the Facilities will be Constructed, Reconstructed, installed, maintained or repaired, or the Public Way Excavated, in accordance with all applicable codes, rules and regulations.
(2) If the applicant is proposing to Construct, Reconstruct, install, maintain, repair or locate Facilities above ground:
A. Evidence that Surplus Space is available for locating its Facilities on existing utility poles along the proposed route.
B. The location and route of all Facilities to be located or installed on existing utility poles.
(3) If the applicant is proposing an underground installation of new Facilities in existing ducts, pipes or conduits In the Public Ways, information in sufficient detail to identify:
A. The Excess Capacity currently available in such ducts or conduits before the installation of the applicant's Facilities.
B. The Excess Capacity, if any, that will exist in Such ducts or conduits after installation of the applicant's Facilities.
(4) If the applicant is proposing an underground installation of new Facilities in new ducts or conduits to be Constructed In the Public Ways.
A. The location and depth proposed for the new ducts or conduits; and
B. The Excess Capacity that will exist in such ducts or conduits after installation of the applicant's Facilities.
(5) The location and route of all Facilities to be located under the surface of the ground, including the line and grade proposed for the burial at all points along the route which are in the Public Ways. Included with the installation shall be magnetic and flourescent tape placed at a minimum of one foot to a maximum of two (2) feet above the entire Facility as installed for the purpose of locating the Facility during future Construction activities. The tape shall be marked with the type of Facility installed as approved by the Village.
(6) The location of all existing underground utilities, conduits, ducts, pipes, mains and installations that are In the Public Ways along the underground route proposed by the applicant.
(7) The location(s), if any, for interconnection with the Facilities of other Service Providers.
(8) The construction methods to be employed for protection of existing structures, fixtures and Facilities in or adjacent to the Public Ways.
(9) The structures, improvements, facilities and obstructions, if any, that the applicant proposes to temporarily or permanently remove or relocate.
(10) The impact of Construction, Reconstruction, installation, maintenance or repair of Facilities on trees in or adjacent to the Public Ways along the route proposed by the applicant, together with a landscape plan for protecting, trimming, removing, replacing and restoring any trees or areas disturbed during Construction.
(11) Information to establish that the applicant has obtained all other governmental approvals and permits to Construct and operate the Facilities and to offer or provide the Services.
(e) Engineer's Certification. All permit applications shall be accompanied by the certification of a State of Ohio registered professional engineer that the drawings, plans and specifications submitted with the application comply with applicable technical codes, rules and regulations.
(f) Traffic Control Plan. All permit applications which involve work on, in, under, across or along any Public Ways shall be accompanied by a traffic control plan demonstrating the protective measures and devices that will be employed, consistent with the Ohio Department of Transportation's Uniform Manual of Traffic Control Devices, to prevent injury or damage to Persons or property and to minimize disruptions to efficient pedestrian and vehicular traffic.
(g) Issuance of Permit. Within forty-five (45) days after submission of all plans and documents required of the applicant and payment of the permit fees required by this Chapter, the Mayor, if satisfied that the applications, plans and documents comply with all requirements of this Chapter, shall issue a permit authorizing the Major Construction Project, Construction, Reconstruction, installation, maintenance or repair of the Facilities, or Excavation in the Public Way, subject to such further conditions, restrictions or regulations affecting the time, place and manner of performing the work as the Mayor may deem necessary or appropriate. Such forty-five (45) day period shall begin after all submissions are deemed by the Mayor to be in accordance with the requirements of, including information submitted in the form required by, this Chapter.
(h) Construction Schedule. The Permit Holder shall submit a written construction schedule to the Mayor ten (10) working days before commencing any work in or about the Public Ways. The Permit Holder shall further notify the Mayor and the Ohio Utility Protection Service (OUPS) not less than twenty-four (24) hours in advance of any Excavation or work in the Public Ways.
(i) Least Disruptive Technology. All Facilities shall be Constructed, Reconstructed, installed, maintained or repaired in the manner resulting in the least amount of damage and disruption of the Public Way. Unless otherwise authorized by the Mayor for good cause, Permit Holders Constructing, Reconstructing, installing, maintaining or repairing underground Facilities shall utilize Trenchless Technology, including, but not limited to, horizontal drilling, directional boring, and microtunneling, if technically and/or technologically feasible. In addition, all cable, wire or fiber optic cable Facilities to be installed underground shall be installed in conduit, without using "direct bury" techniques.
(j) Compliance with Permit. All Construction practices and activities shall be in accordance with the Construction Permit and approved final plans and specifications for the Facilities. The Mayor shall be provided access to the work and such further information as he or she may require to ensure compliance with such requirements. Field changes may be approved by the Mayor if such changes are determined to be necessary due to site conditions or other changed circumstances.
(k) Display of Permit. The Permit Holder shall maintain a copy of the Construction Permit and approved plans at the construction site, which shall be displayed and made available for inspection by the Mayor at all times when construction work is occurring.
(l) Survey of Underground Facilities. If the Construction Permit specifies the location of Facilities by depth, line, grade, proximity to other facilities or other standard, the Permit Holder shall cause the location of such Facilities to be verified by a registered Ohio land surveyor. The Permit Holder shall relocate any Facilities that are not located in compliance with permit requirements.
(m) Noncomplying Work. Upon order of the Mayor, all work that does not comply with the permit, the approved plans and specifications for the work, or the requirements of this Chapter, shall immediately cease and shall be immediately removed and/or corrected by the Permit Holder.
(n) Completion of Construction. The Permit Holder shall promptly complete all Construction activities so as to minimize disruption of the Public Ways and other public and private property. All Construction work authorized by a permit in the Public Ways, including restoration, must be completed within one hundred twenty (120) days of the date of issuance.
(o) Record Drawings. Within sixty (60) days after completion of Construction, the Permit Holder shall furnish the Village with two (2) complete sets of plans, drawn to scale and certified to the Village as accurately depicting the location of all Facilities Constructed pursuant to the permit. At such time, the Permit Holder shall submit the Record Drawings in a digital format compatible with the Village's current computer software.
(p) Restoration of Improvements. Upon completion of any Construction work, the Permit Holder shall promptly repair any and all Public Ways and provide property improvements, fixtures, structures and Facilities which were damaged during the course of Construction, restoring the same as nearly as practicable to its condition before the start of Construction.
(q) Landscape Restoration.
(1) All trees, landscaping and grounds removed, damaged or disturbed as a result of the Construction, Reconstruction, installation, maintenance, repair or replacement of Facilities must be replaced or restored as nearly as may be practicable, to the condition existing prior to performance of work.
(2) All restoration work within the Public Ways shall be done in accordance with landscape plans approved by the Mayor.
(r) Construction Surety. Prior to issuance of a Construction Permit, the Permit Holder shall provide a Construction Bond, as provided in Section 723.04
(w) of this Chapter.
(s) Responsibility of Owner. The owner of the Facilities to be Constructed, Reconstructed, installed, located, operated, maintained or repaired and, if different, the Permit Holder, are responsible for performance of and compliance with all provisions of this Section.
(Ord. 98-2000. Passed 10-16-00.)
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