902.01 DECLARATION OF FINDINGS AND PURPOSE, SCOPE, DEFINITIONS.
(a) Findings and Purpose.
(1) The City of Whitehall, Ohio (the "City") is vitally concerned with the 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 and placement of facilities and structures therein.
(3) It is necessary to comprehensively plan and manage access to, and 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) 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.
(c) Definitions. For the purposes of Chapter 902, 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) “Applicant” means any Person who seeks to obtain or renew a Certificate of Registration or Permit.
(2) “Application” means the process and format by which an Applicant submits a request to obtain a Certificate of Registration or Permit.
(3) “Bankruptcy Act” means the regulations promulgated by Title 11 of The United States Code.
(4) “Best Efforts” means the best reasonable efforts under the circumstances, taking into consideration, among other appropriate matters, all applicable Laws, regulations, safety, engineering and operational codes, available technology, human resources, and cost.
(5) “Board of Zoning and Building Appeals (BZBA)” means the Board of Zoning and Building Appeals of the City of Whitehall, Ohio.
(6) “Certificate of Registration” means the document issued to each Provider and its unique System to occupy the Rights of Way within the City and outlines the terms of that occupancy of the Rights of Way.
(7) “City” means the City of Whitehall, Ohio.
(8) “City Attorney” means the City Attorney of Whitehall, Ohio.
(9) “City Council” means the legislative governing body of the City.
(10) “Clerk of Council” means the duly appointed Clerk of the City Council of Whitehall, Ohio.
(11) “Codified Ordinances” means the Codified Ordinances of the City of Whitehall, Ohio.
(12) “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 use all reasonable means to notify the Provider as soon as possible.
(13) “Construct” means, but shall not be limited to, dig, bore, tunnel, trench, excavate, obstruct, install wires, install conduit, install pipes, install transmission lines, install poles, install signs, or install Facilities, other than landscaping or 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.
(14) “Construction” means, but shall not be 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 or 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.
(15) “Construction Bond” means a bond posted to ensure proper and complete Construction, replacement and/or repair of a Facility and/or the affected Rights of Way pursuant to a Permit.
(16) “Construction Permit” means the Permit as specified in Section 902.17 et seq. of the Codified Ordinances 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.
(17) “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.
(18) “County” means Franklin County, Ohio.
(19) “Credible” means worthy of being believed.
(20) “Department of Public Service” means the Department of Public Service of the City of Whitehall, Ohio or his or her designee.
(21) “Director of Public Service” means the Director of the Department of Public Service of the City of Whitehall, Ohio or his or her designee.
(22) “Emergency” means a condition that poses a clear and immediate danger to life, health, or safety of a Person, or of a significant loss of real or personal property.
(23) “Facilities” means any tangible thing located in any Rights of Way within the City; but shall not include mailboxes, 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.
(24) “FCC” means the Federal Communications Commission, or any successor thereto.
(25) “Full” means unable to accommodate any additional Facilities in light of applicable standards and using standard engineering practices as determined by the Director of Public Service; or, without negatively impacting public health and safety; or, without violating any applicable Laws or Rules and Regulations.
(26) “In”, when used in conjunction with Rights of Way, means in, on, above, within, over, below, under or through a Rights of Way.
(27) “Inspector” means any Person authorized by the Director of Public Service to carry out inspections related to the provisions of this Chapter.
(28) “Law(s)” means any local, state, 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.
(29) “Major Facilities” means those Facilities defined as such in the Rules and Regulations adopted by the Director of Public Service pursuant to Section 902.11 herein.
(31) “Ohio Manual of Uniform Traffic Control Devices” means the uniform system of trafffic control devices promulgated by the Ohio Department of Transportation pursuant to Ohio R.C. 4511.09.
(32) “Ohio R.C.” means the Ohio Revised Code.
(33) “Ohio Utility Protection Service” means the utility protection service as defined in Ohio R.C. 153.64 and 3781.26 or its statutory successor.
(34) “Open Video Service” means any video programming services provided by a Person through use of Rights of Way, which Provider is certified by the FCC to operate an Open Video System pursuant to Sections 651 et seq. of the Telecommunications Act of 1996 (codified at 47 U.S.C. Title VI, Part V), regardless of the facilities used.
(35) “Permit” means a Construction Permit and/or a Minor Maintenance Permit unless otherwise specified.
(36) “Permit Cost(s)” means, as allowed by Law, all costs borne by the City for Permit issuance.
(37) “Permit Fee(s)” means money paid to the City for a Permit to Construct and do Minor Maintenance in the Rights of Way.
(38) “Permittee” means any Person to whom a Construction Permit and/or a Minor Maintenance Permit has been granted by the City and not revoked.
(39) “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, whether for profit or not for profit.
(40) “Provider” means a Person who owns or operates a System. The City or County, and cable television operators operating pursuant to a valid cable franchise shall also be considered Providers.
(41) “PUCO” means the Public Utilities Commission of Ohio as defined in Ohio R.C. 4901.02.
(42) “Registration Maintenance Fee” means the money paid to the City to maintain a Certificate of Registration and compensate the City for costs associated with Rights of Way management and administration.
(43) “Removal Bond” means a bond posted to ensure the availability of sufficient funds to properly remove a Provider's Facilities upon abandonment, disuse, or discontinuance of a Provider's use or occupation of the Rights of Way.
(44) “Restoration” means the process and the resultant effects by which Rights of Way are returned to a condition at least as good, using the same materials (or other similar materials approved by the Director of Public Service), as its condition immediately prior to Construction. Restoration shall occur in accordance with the Rules and Regulations established by the Director of Public Service and as amended from time to time.
(45) “Right(s) of Way” means the surface and space in, on, 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, now or hereafter, that consistent with the purposes for which it was dedicated, 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 dedicated to compatible uses, except to the extent the use or occupation of such property is specifically granted in a Permit or by Law. Rights of Way shall not include private easements or public property, except to the extent the use or occupation of public property is specifically granted in a Certificate of Registration or by Rules and Regulations.
(46) “Right(s) of Way Cost” means all direct, incidental and indirect costs borne by the City for the management, administration and regulation of the Rights of Way and this Chapter.
(47) “Rule(s) and Regulation(s)” means any rule and or regulation adopted by the Director of Public Service pursuant to Law.
(48) “Service(s)” means the offering of any service or Utility for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, or alternatively, the provision of any service or Utility between two or more points for a proprietary purpose to a class of users other than the general public that in the opinion of the Director constitutes a Service.
(49) “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.
(50) “Surety Fund” means a formal pledge made to secure against loss, damage, or default.
(51) “System” means any system of conduit, ducts, cables, pipes, wires, lines, towers, antennae wave guides, optic fiber, microwave, or laser beams, and any associated converters, equipment, or Facilities or Utilities designed and constructed for the purpose of producing, receiving, amplifying, delivering or distributing Service within the City.
(52) “System Representative(s)” means the specifically identified agent(s)/employee(s) of a Provider who are authorized to direct field activities of that Provider and serve as official notice agent(s) for System related information. Provider shall be required to make sure at least one (1) of its System Representatives is available at all times to receive notice of, and immediately direct response to, System related emergencies or situations.
(53) “Transfer” means the disposal by the Provider, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation, or otherwise, of fifty-one percent (51%) or more at one time of the ownership or controlling interest in the System, or fifty-one percent (51%) 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.
(54) “Trenchless Technology” means, but shall not be 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 Rights of Way as possible.
(55) “Underground Facilities” means all lines, cables, conduits, pipes, posts, tanks, vaults, wires and any other Facilities, which are located wholly or partially underneath Rights of Way.
(56) “Unused Facilities” means Facilities located in the Rights of Way which have remained unused for twelve (12) months and for which the Provider is unable to provide the City with a plan detailing the procedure by which the Provider intends to begin actively using such Facilities within the next twelve (12) months, or that it has a potential purchaser or user of the Facilities who will be actively using the Facilities within the next twelve (12) months, or, that the availability of such Facilities is required by the Provider to adequately and effficiently operate its System.
(57) “Utility(ies)” means any water, sewer, gas, drainage, or culvert pipe and any electric power, telecommunication, signal, communication, or cable television conduit, fiber, wire, cable, or operator thereof.
(58) “Utility Corridor(s)” means those specific areas of the Rights of Way designated as such by the Director of Public Service pursuant to Section 902.06(e) herein.
(59) “Working Day” means any Monday, Tuesday, Wednesday, Thursday, or Friday excluding legal holidays observed by the City.
(Ord. 39-01. Passed 9-18-01.)