902.18 CONSTRUCTION, RELOCATION AND RESTORATION.

   (a)   Technical Information Required. Prior to commencement of any initial Construction of Facilities in the Rights of Way a Construction Permittee, upon the reasonable request of the Director of Public Service, shall provide technical information about the proposed route of Construction. The technical information required may consist of completion of the following tasks:

      (1)   Secure all available "as-built" plans, plats, and other location data indicating the existence and approximate location of all Facilities along the proposed Construction route.

      (2)   Visibly survey and record the location and dimensions of any Facilities along the proposed Construction route, including, but not limited to, manholes, valve boxes, utility boxes, posts, and visible street cut repairs.

      (3)   Determine and record the presence of and the approximate horizontal and vertical location of all Underground Facilities the Applicant or Person on whose behalf the Permit was applied for owns or controls in the Rights of Way along the proposed System route. Upon the reasonable request of the Director of Public Service, a Permittee shall also record and identify the general location of all other Facilities in the Rights of Way along the proposed System route. For the purposes of this Section, general location shall mean the alignment of other Facilities in the Rights of Way, but shall not necessarily mean the depth of other Facilities in the Rights of Way.

      (4)   If a Provider records the information requested above in an electronic format, the Provider shall provide the City with an electronic copy of the data obtained from completion of the tasks described in this section. Incorporation of the data required herein by electronic means shall include only data for new Facilities that can be readily incorporated into the City's database.

      (5)   Where the proposed location of Facilities and the location of existing Underground Facilities appear to conflict with the plans as drafted, Construction Permittee has the option of either utilizing non-destructive digging methods, such as vacuum excavation, at the critical points identified to determine as precisely as possible, the horizontal, vertical and spatial position, composition, size and other specifications of the conflicting Underground Facilities, or re-designing the Construction plans to eliminate the apparent conflict. A Construction Permittee shall not excavate more than a three (3) foot by three (3) foot square hole in the Rights of Way to complete this task.

      (6)   Based on all of the data collected upon completion of the tasks described in this Section, adjust the proposed System design to avoid the need to relocate other Underground Facilities.

      (7)   All Confidential/Proprietary Information submitted herein shall be so labeled.

   (b)   Qualified Firm. All utility engineering studies conducted pursuant to this Section 902.18 shall be performed by a firm specializing in utility engineering or may be performed by the Construction Permittee if the Construction Permittee is qualified to complete the project itself.

   (c)   Cost of Study. The Construction Permittee shall bear the cost of compliance with Sections 902.18(a) through (c).

   (d)   Construction Schedule. Unless otherwise provided for in this Chapter, or unless the Director of Public Service waives any of the requirements of this Section due to unique or unusual circumstances, a Construction Permittee shall be required to submit a written Construction schedule to the City ten (10) Working Days before commencing any work in or about the Rights of Way and, shall further notify the City not less than two (2) Working Days in advance of any excavation in the Rights of Way. This Section shall apply to all situations with the exception of circumstances under Section 902.20(d)(1) (Emergency Situations).

(Ord. 39-01. Passed 9-18-01.)

   (e)   Location of Facilities. 

      (1)   The placement of new Facilities and replacement of old Facilities, either above ground or underground, shall be completed in conformity with applicable Laws.

      (2)   The City shall have the power to prohibit or limit the placement of new or additional Facilities within the Rights of Way. In making such decisions, the City shall strive to the extent possible to accommodate all existing and potential users of the Rights of Way, but shall be guided primarily by considerations of the public health, safety, and welfare, the condition of the Rights of Way, the time of year, the protection of existing Facilities in the Rights of Way, future City and County plans for public improvements, development projects which have been determined to be in the public interest, aesthetics, economic development impact and the nondiscriminatory and competitively neutral treatment of providers.

      (3)   Upon the concurrence of the City, or if it is determined by the Construction Permittee and such determination is reasonably based upon any appropriate local, state, or federal agency (or other entity with jurisdictional authority) that any existing poles in the Rights of Way are Full, then those poles may be replaced with bigger and/or taller poles in order to accommodate additional Facilities or Systems only after the Construction Permittee has made reasonable attempts to reach an acceptable solution without replacement with bigger and/or taller poles. This paragraph shall not apply to replacement of any existing pole(s) with identically sized pole(s), which results from the destruction of or hazardous condition of the existing pole(s) as long as no new Facilities or additional Facilities are attached.
(Ord. 113-2016. Passed 11-1-16.)

   (f)   Least Disruptive Technologv. All Construction or maintenance of Facilities shall be accomplished in the manner resulting in the least amount of damage and disruption of the Rights of Way. In addition, all cable, wire or fiber optic cable installed in the subsurface Rights of Way under this Chapter may be required, unless technologically impracticable, to be installed in conduit, and if so required, no cable, wire or fiber optic cable may be installed under this Chapter using “direct bury” techniques.

   (g)   Relocation of Facilities. 

      (1)   A Provider shall, at its own expense, permanently remove and relocate its Facilities in the Rights of Way whenever the City finds it necessary to request such: removal and relocation. In instances where the City requests removal and/or relocation, the City shall waive all applicable Construction Permit Fees. Upon removal and/or relocation, the Provider shall restore the Rights of Way to a condition at least as good as its condition immediately prior to said removal or relocation. If existing poles are required to be removed and/or relocated, then the existing poles will be replaced with reasonably obtainable poles of the same or similar size unless otherwise permitted by the City. The Director of Public Service may request relocation and/or removal in order to prevent unreasonable interference by the Provider's Facilities with:

         A.   A public improvement undertaken or approved by the City or County;

         B.   When the public health, safety, and welfare requires it, or when necessary to prevent interference with the safety and convenience of ordinary travel over the Rights of Way.

      (2)   Notwithstanding the foregoing, a Provider who has Facilities in the Right of Way subject to a vacation or narrowing that is not required for the purposes of the City, shall have a permanent easement in such vacated portion or excess portion in conformity with Ohio R.C. 723.04.01.

      (3)   If, in the reasonable judgment of the City, a Provider fails to commence the removal process and/or relocation of its Facilities as designated by the City, within thirty (30) days after the City's removal order is served upon Provider, or if a Provider fails to substantially complete such removal, including all associated repair of the Rights of Way of the City, within twelve (12) months thereafter, then, to the extent not inconsistent with applicable Law, the City shall have the right to:

         A.   Declare that all rights, title and interest to the Facilities belong to the City with all rights of ownership, including, but not limited to, the right to connect and use the Facilities or to effect a transfer of all right, title and interest in the Facilities to another Person for operation; or

         B.   Authorize removal of the Facilities installed by the Provider in, on, over or under the Rights of Way of the City at Provider's cost and expense, by another Person, however the City shall have no liability for any damage caused by such action and the Provider shall be liable to the City for all reasonable costs incurred by the City in such action; and

         C.   To the extent consistent with applicable Law, any portion of the Provider's Facilities in, on, over or under the Rights of Way of the City designated by the City for removal and not timely removed by the Provider shall belong to and become the property of the City without payment to the Provider, and the Provider shall execute and deliver such documents, as the City shall request, in form and substance acceptable to the City, to evidence such ownership by the City.

   (h)   Pre-Excavation Facilities Location. Before the start date of any Rights of Way excavation, each Provider who has Facilities located in the area to be excavated shall be responsible to mark the horizontal and make every reasonable attempt using Best Efforts, to mark the approximate vertical placement of all its Facilities. All Providers shall notify and work closely with the excavation contractor in an effort to establish the exact location of its Facilities and the best procedure for excavation.

   (i)   Rights of Way Restoration. 

      (1)   The work to be done under the Permit, and the Restoration of the Rights of Way as required herein, must be completed within the dates specified in the Permit. In addition to its own work, the Permittee must restore the general area of the work, and the surrounding areas, including trench backfill, paving and its foundations in accordance with the standards established by the Director of Public Service, subject to any applicable Laws. The Permittee must also inspect the area of the work and use reasonable care to maintain the same condition for twelve (12) months thereafter.

      (2)   In approving an Application for a Permit, the City may choose either to have the Permittee restore the Rights of Way or the City may restore the Rights of Way itself at the expense of the Permittee.

      (3)   If the City chooses to allow Permittee to restore the Rights of Way, Construction Permittee shall at the time of Application of a Construction Permit post a Construction Bond in an amount determined by the City to be sufficient to cover the cost of restoring the Rights of Way to a condition at least as good as its condition immediately prior to Construction. If, twelve (12) months after completion of the Restoration of the Rights of Way, the City determines that the Rights of Way have been properly restored, the surety on the Construction Bond shall be released.

      (4)   The Permittee shall perform the work according to the standards and with the materials specified and approved by the City.

      (5)   By restoring the Rights of Way itself, the Permittee guarantees its work and shall maintain it for twelve (12) months following its completion. During this twelve (12) month period, it shall, upon notification from the Department of Public Service, correct all Restoration work to the extent necessary using the method required by the Department of Public Service. Weather permitting, said work shall be completed within five (5) calendar days of the receipt of the notice from the Department of Public Service.

      (6)   If the Permittee fails to restore the Rights of Way in the manner and to the condition required by the City, or fails to satisfactorily and timely complete all repairs required by the City, the City, at its option, with notice to Provider and a reasonable time to cure, may do such work. In that event, the Permittee shall pay to the City, within thirty (30) days of billing, the cost of restoring the Rights of Way and any other costs incurred by the City. Upon Failure to pay, the City may call upon any bond or letter of credit posted by Permittee and/or pursue any and all legal and equitable remedies.

   (j)   Damage to Provider's Facilities and to Other Facilities.

      (1)   In the case of an Emergency, and if possible after reasonable efforts to contact the Provider seeking a timely response, when the City performs work in the Rights of Way and finds it necessary to maintain, support, or move a Provider's Facilities to protect those Facilities, the costs associated therewith will be billed to that Provider and shall be paid within thirty (30) days from the date of billing. Upon failure to pay, the City may pursue all legal and equitable remedies in the event a Provider does not pay or the City may call upon any bond or letter of credit posted by Permittee and pursue any and all legal or equitable remedies.

      (2)   Each Provider shall be responsible for the cost of repairing any Facilities in the Rights of Way, which it or its Facilities damage. Each Provider shall be responsible for the cost of repairing any damage to the Facilities of another Provider caused during the City's response to an Emergency caused by such Provider's Facilities.

   (k)   Rights of Way Vacation. If the City vacates a Rights of Way which contains the Facilities of a Provider, such vacation shall be subject to the provisions of Ohio R.C. 723.04.1.

   (l)   Installation Requirements. The excavation, backfilling, Restoration, and all other work performed in the Rights of Way shall be performed in conformance with all applicable Laws and the standards as promulgated by the Director of Public Service.

   (m)   Inspection. 

      (1)   When the Construction under any Permit hereunder is completed, the Permittee shall notify the Department of Public Service.

      (2)   The Permittee shall make the Construction site available to the Inspector and to all others as authorized by Law for inspection at all reasonable times during the execution and upon completion of the Construction.

      (3)   At any time, including the time of inspection, the Inspector may order the immediate cessation of any work which poses a serious threat to the health, safety, or welfare of the public, violates any Law, or which violates the terms and conditions of the Permit and/or this Chapter.

      (4)   The Inspector may issue an order to correct work, which does not conform to the Permit and/or applicable standards, conditions or codes. The order shall state that failure to correct the violation will be cause for revocation of the Permit. The order may be served on the Permittee as provided in Section 902.23(d). An order may be appealed to the Director of Public Service. The decision of the Director of Public Service may be appealed to the BZBA whose decision shall be final. If not appealed, within ten (10) days after issuance of the order, the Provider shall present proof to the Director of Public Service that the violation has been corrected. If such proof has not been presented within the required time, the Director of Public Service may revoke the Permit pursuant to Section 902.20(e).

   (n)   Other Obligations. Obtaining a Construction Permit does not relieve Permittee of its duty to obtain all other necessary Permits, licenses, and authority and to pay all fees, including on site inspection fees, required by the City, or any other city, county, state, or federal Laws.

      (1)   A Permittee shall comply with all requirements of Laws, including the requirements of the Ohio Utility Protection Service (OUPS) and/or its lawful successor.

      (2)   A Permittee shall perform all work in conformance with all applicable Laws and standards and is responsible for all work done in the Rights of Way pursuant to its Permit, regardless of who performs the work.

       (3)   No Rights of Way obstruction or excavation may be performed when seasonally prohibited or when conditions are unreasonable for such work, except in the case of an Emergency as outlined in Section 902.20(d)(1).

      (4)   A Permittee shall not so obstruct a Rights of Way that the natural free and clear passage of water through the gutters or other waterways shall be interfered with.

      (5)   Private vehicles other than necessary Construction vehicles may not be parked within or adjacent to a Permit area. The loading or unloading of trucks adjacent to a Permit area is prohibited unless specifically authorized by the Permit.

   (o)   Undergrounding Required. Any owner of property abutting upon a street or alley where Service Facilities are now located underground and where the Service connection is at the property line, shall install or cause others to install underground any Service delivery infrastructure from the property line to the buildings or other structures on such property to which such Service is supplied.

(Ord. 39-01. Passed 9-18-01.)