(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.)