(a) Consent Required to Occupy Public Right-of-Way. No person shall occupy or use the public right-of-way without obtaining consent from the city to do so.
(b) Initial Consent Required.
(1) A person with existing facilities in the public right-of-way on the effective date of this chapter, and who either:
A. Is subject to jurisdiction by the PUCO;
B. Has a valid franchise agreement with the City to provide cable services or other services in the City; and/or
C. Is any other person whose existing facilities lawfully occupy the public right-of-way on the effective date of this chapter shall be presumed to have initial consent of the city for its existing facilities to occupy or use the public right-of-way.
(2) Initial presumed consent for occupancy or use of the public right-of-way is limited to the service or private service provider's existing facilities.
(3) A public utility subject to the jurisdiction of the PUCO and in compliance with state and federal laws and regulations shall be exempt from a requirement to obtain consent for activities related to those authorized under its tariff issued by the State of Ohio and regulated by the Public Utilities Commission.
(4) A public utility operating under its tariff from the State of Ohio and within the services authorized by that tariff shall be exempt from this section only for that public utility's related activities.
(c) Application for Consent to Occupy or Use Public Right-of-Way.
(1) The following persons shall apply to the city for consent to occupy or use the public right-of-way on a form provided by the city; any person who:
A. Does not currently have an existing system or facilities in the city's public right-of-way and desires to construct a system, facilities or private facilities in the public right-of-way;
B. Has an existing system, facilities or private facilities in the public right-of-way on the effective date of this chapter and does not have presumed initial consent under Section 848.02(b)(1) above; or
C. Has initial presumed consent or city consent to occupy or use the public right-of-way for an existing system, facilities or private facilities, but is planning to expand services beyond those provided for in the tariff of a public utility issued by the State of Ohio.
(2) The application for consent to occupy or use the public right-of-way and/or initial registration pursuant to Section 848.03(a) for service providers with initial presumed consent to occupy or use the public right-of-way shall include the following information with respect to the applicant's or service provider's planned or existing system and/or facilities in the public right-of-way as well as plans for any planned capital improvements or reconstruction for the following twelve (12) months:
A. The identity, legal status and federal tax identification number of the applicant, including all affiliates of the applicant or service provider that will use or occupy the public right-of-way or are in any way responsible for services provided over the system in the public right-of-way.
B. The name, address and telephone number of the local officer, agent or employee responsible for the accuracy of the application or initial registration and available at all reasonable times to be notified in case of emergency.
C. A general description of the services provided or to be provided by the applicant or service provider over its system or facilities. Where services are or will be provided by a non-affiliated provider, the applicant or service provider shall identify that provider.
D. A description of the type of transmission medium used, or to be used, by the applicant or service provider to operate a system.
E. A description of the existing or proposed facilities in the city's public right-of-way, all in sufficient detail to identify:
1. The location and route of the applicant's or service provider's facilities or proposed facilities;
2. The location of all known existing overhead and/or underground facilities in the public right-of-way along the route or proposed route of the applicant's or service provider's facilities or proposed facilities that is sufficient to show the impact of the applicant's facilities on other existing facilities; and
3. The location of all known overhead and underground utility easements.
F. A preliminary construction schedule and completion date for all capital improvements planned for the twelve (12) month period following the date of application.
G. If the applicant or service provider is providing services in the city:
1. A description of the access and line extension policies or a copy of their PUCO tariff;
2. The area or areas of the city in which the applicant or service provider is currently providing service and a schedule for build-out of the entire area addressed by the permit, if applicable.
H. Evidence that the applicant or service provider has complied, or will comply, with indemnification, insurance, performance bond and construction bond requirements of this chapter.
I. Information sufficient to determine that the applicant or service provider has received any certificate of authority required by the puco to operate a system and provide services in the city.
J. Such other and further information as may reasonably be requested by the city.
(3) The city shall grant or deny, in writing, a person's application for consent to occupy or use the public right-of-way within sixty (60) days of the date on which the person filed the application with the city.
A. The city may withhold, deny or delay its consent to a person's application to occupy or use the public right-of-way based on the person's failure to possess the financial, technical and managerial resources necessary to protect the public health, safety and welfare, or for other reasons based on the health, safety and welfare of the city in accordance with Ohio law.
B. If the city denies a person's application to occupy or use the public right-of-way, the city shall provide its reasons in writing for denying the application, and shall provide any information that the person may reasonably request necessary for the person to obtain the city's consent to occupy or use the public right-of-way.
(4) The city's grant of consent for a person to occupy or use the public right-of-way shall be in the form of a right-of-way occupancy certificate which shall set forth the specific terms of the city's consent for such person to occupy or use the public right-of-way.
(5) Each person submitting an application for consent to occupy or use the public right-of-way shall pay a fee as determined by the city engineer to reimburse the city for its administrative costs related to the application as provided in Section 848.08.
(d) Application to Existing Franchise Ordinances and Agreements. For purposes of this chapter, a franchise ordinance or agreement shall be deemed consent authorizing the franchisee's occupancy or use of the public right-of-way to the extent described in the franchise agreement or ordinance. The franchisee's use of the public right-of-way beyond that authorized by the franchise agreement or ordinance shall require additional consent for such additional occupancy or 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 direct conflict between the franchise agreement or ordinance and the provisions of this chapter, the franchise agreement or ordinance shall control.
(e) Service Provider Insurance. As a condition of the consent to occupy or use the public right-of-way, a service provider must secure and maintain, at a minimum, the following liability insurance policies insuring both the service provider and the city, and its elected and appointed officers, officials, agents, employees and representatives as additional insureds:
(1) Comprehensive general liability insurance with limits not less than:
A. Five million dollars ($5,000,000.00) for bodily injury or death to each person;
B. Five million dollars ($5,000,000.00) for property damage resulting from any one accident; and
C. Five million dollars ($5,000,000.00) for all other types of liability.
(2) Automobile liability for owned, non-owned and hired vehicles with a limit of three million dollars ($3,000,000.00) for each person and three million dollars ($3,000,000.00) for each accident.
(3) Worker's compensation within statutory limits and employer's liability insurance with limits not less than one million dollars ($1,000,000.00).
(4) Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than three million dollars ($3,000,000.00).
(5) The liability insurance policies required by this section shall be maintained by the service provided throughout the period of time during which the service provider is occupying or using the public right-of-way, or is engaged in the removal of its facilities. Each such insurance policy shall contain the following endorsement:
"It is hereby understood and agreed that this policy may not be cancelled nor the intention not to renew be stated until ninety (90) days after receipt by the city, by registered mail, of a written notice addressed to the city engineer of such intent to cancel or not to renew."
(6) Within sixty (60) days after receipt by the city engineer of said notice, and in no event later that thirty (30) days prior to said cancellation, the service provider shall obtain and furnish to the city replacement insurance policies meeting the requirements of this section.
(7) Upon written application to, and written approval by the city, a service provider may be self-insured to provide all of the same coverages as listed in this section; except that all coverages for workers' compensation shall be in compliance with state law. No approval for self-insurance shall be given until the city has made a complete review of the service provider's financial ability to provide such self-insurance. As part of the review process, the city may require, and the self-insurance applicant shall provide, any and all financial documents necessary to make a valid determination of the applicant's ability to meet the needs of this chapter.
(f) General Indemnification. Each applications for consent to occupy or use the public right-of-way, and each annual registration, shall include, to the extent permitted by law, the service provider's express undertaking to defend, indemnify and hold the city and its elected and appointed officers, officials, employees, agents, representatives and subcontractors harmless from and against 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 service provider or its affiliates, officers, employees, agents, contractors or subcontractors in the construction, reconstruction, installation, operation, maintenance, repair or removal of its system or facilities, and in providing or offering services over the facilities or system, whether such acts or omissions are authorized, allowed or prohibited by this chapter.
(g) Performance Bond or Security Fund. As a condition of consent to occupy or use the public right-of-way, and to ensure the full and complete compliance with, and performance under, this chapter, including any costs, expenses, damages or loss the city pays or incurs because of any failure attributable to the service provider to comply with the codes, ordinances, rules, regulations or permits of the city, each service provider shall, in the amount of fifty thousand dollars ($50,000.00) or such lesser amount as the city engineer may determine to be necessary, (i) establish a permanent security fund with the city by depositing the required amount in cash, an unconditional letter of credit, or other instrument acceptable to the city, or (ii) furnish and file with the city a performance bond running to the city in the required amount from a company licensed to do business in the State of Ohio; which performance bond or security fund shall be maintained at the sole expense of the service provider so long as any of the service provider's facilities are located within the public right-of-way of the city.
(1) Before claims are made against the performance bond or any sums are withdrawn from the security fund, the city shall give written notice to the service provider:
A. Describing the act, default or failure to be remedied, or the damages, cost or expenses which the city has incurred by reason of the service provider's act of default;
B. Providing a reasonable opportunity for the service provider to first remedy the existing or ongoing default or failure, if applicable;
C. Providing a reasonable opportunity for the service provider to pay any monies due the city before the city makes a claim against the performance bond or withdraws the amount from the security fund, if applicable; and
D. That the service provider will be given an opportunity to review the act, default or failure described in the notice with the city.
(2) Service providers shall maintain the full value of the performance bond regardless of claims against the performance bond made by, or paid to, the city; or shall replenish the security fund within fourteen (14) days after written notice from the city that there is a deficiency in the amount of the fund, whichever is applicable.
(3) Public utilities operating under a tariff issued by the State of Ohio and regulated by the PUCO and in compliance with PUCO regulations concerning insurance shall be exempt from any provision regarding a performance bond or security fund for all tariff related activities.
(Ord. 2006-55. Passed 9-18-2006.)