136-02 Ordinance RECORD OF ORDINANCES
Dayton Legal Blank Co. Form No. 30043
Ordinance No..........1.3b-Q2 Passed
AN ORDINANCE AMENDING CHAPTER 98 OF THE
DUBLIN CODIFIED ORDINANCES (RIGHT OF WAY MANAGEMENT),
AND DECLARING AN EMERGENCY
WHEREAS, the City of Dublin, Ohio (the "City") is vitally concerned with the use of
the various 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; and
WHEREAS, the City previously enacted Chapter 98 of the Codified Ordinances to
provide for the regulation of the use or occupation of the Rights-of--Way in the City; and
WHEREAS, it continues to be 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 public safety; and
WHEREAS, subsequent to the enactment of Chapter 98 of the Codified Ordinances of
the City, public utilities and communication companies have continued to request and
require additional access to the Rights-of--Way to place additional structures and
facilities therein; and
WHEREAS, the City of Dublin desires to make certain amendments/additions to
Chapter 98 of the Codified Ordinances of the City to better address the placement of
public and private facilities in the Rights-of--Way; and
WHEREAS, such amendments/additions to Chapter 98 of the Codified Ordinances of
the City will enable the City of Dublin to better manage the Rights-of--Way and promote
public health, safety and welfare; and
WHEREAS, the City has rights 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; and
WHEREAS, current Chapter 98 of the Codified Ordinances of the City of Dublin must
be amended to provide for better Rights-of--Way management and administration by
enacting § 98.06(C) establishing a process for approval of facilities placement in the
Rights-of--Way.
NOW, THEREFORE BE IT ORDAINED by the Council of the City of Dublin, State
of Ohio, ~ of the elected members occurring that:
Section 1: That the Codified Ordinances of the City of Dublin are hereby amended in
the following manner:
CHAPTER 98: RIGHT-OF-WAY MANAGEMENT
Section:
98.01 Definitions
` 98.02 Purpose and scope of chapter
98.03 Prohibition; types of permit
98.04 Application procedure, appeal
98.05 Criteria for granting permits
98.06 Obligations of permittees; conditions of permits
98.07 Permit fees and auditing
98.08 Joint planning and construction
98.09 City use of facilities
98.10 Adoption of administrative regulations
98.11 Indemnity; insurance
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98.12 Removal of facilities
98.13 Revocation
98.14 Reservation of rights
98.15 Temporary movement of facilities
98.16 Foreclosure and receivership
98.17 Non-enforcement and waivers by city
98.18 Captions
98.99 Penalty
§ 98.01 DEFINITIONS.
For purposes of this chapter, 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.
APPLICANT. Any person applying for aright-of--way permit hereunder.
APPROVED. Approval by the city pursuant to this chapter or any service
agreement adopted hereunder.
BEST EFFORTS. The best reasonable efforts under the circumstances, taking
into consideration, among other appropriate matters, safety, expedition, available
technology and human resources and cost.
BUSINESS DISTRICT RIGHT-OF-WAY or DUBLINK AREA. The right-of-
way described in Exhibit A, attached to Ordinance No. 152-97, passed December 15,
1997.
CHAPTER. Chapter 98 of the Code of Ordinances of the city, as amended from
time to time, and any administrative regulations adopted hereunder.
CITY. The City of Dublin, Ohio.
CITY MANAGER. The Dublin City Manager or his/her designee.
COUNCIL. The legislative body of the city.
FORCE MAJEURE. A strike, act of God, act of public enemy, order of any
kind of a government of the United States of America or of the State of Ohio or any of
their departments, agencies or political subdivisions; riot, epidemic, landslides,
lightning, earthquake, fire, tornado, storm, flood, civil disturbance, explosion, partial or
entire failure of a utility or any other cause or event not reasonably within the control of
the party disabled by such Force Majeure, but only to the extent such disabled party
notifies the other party as soon as practicable regarding such Force Majeure and then for
only so long as and to the extent that, the Force Majeure prevents compliance or causes
non-compliance with the provisions hereof.
GENERAL RIGHT-OF-WAY PERMIT. Shall have the meaning set forth in §
98.03(B)(1).
PERMITTEE. Any person issued aright-of--way permit pursuant to this chapter
to use or occupy all or a portion of the rights-of--way in accordance with the provisions
of this chapter and said right-of--way permit.
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PERSON. Any natural person or any association, firm, partnership, joint
venture, corporation, or other legally recognized entity, whether for-profit or not-for-
profit.
PUBLIC PROPERTY. Any real property owned by the city or easements held
or used by the city, other than aright-of--way.
REGULATION or ADMINISTRATIVE REGULATIONS. Any rule adopted
by the City Manager pursuant to the authority of this chapter, and the procedure set
forth in § 98.10 to carry out its purpose and intent.
RESIDENTIAL PURPOSES. Residential use of right-of--way for such uses as
mailboxes, trees, landscaping, lawn sprinklers, decorative purposes or any curb cuts and
driveways, and as maybe further defined in any administrative regulations promulgated
pursuant to § 98.03(A).
RIGHT-OF-WAY. The surface of and the space above and below the paved or
unpaved portions of any public street, public road, public highway, public freeway,
public lane, public path, public bikepath, public way, public alley, public court, public
sidewalk, public boulevard, public parkway, public drive and any other land dedicated
or otherwise designated for the same now or hereafter held by the city which shall,
within its proper use and meaning in the sole opinion of the City Manager, entitle a
permittee, in accordance with the terms hereof and of any right-of--way permit, to the
use thereof for the purpose of installing or operating any poles, wires, cables,
transformers, conductors, ducts, lines, mains, conduits, vaults, manholes, amplifiers,
appliances, attachments or other property or facilities as may be ordinarily necessary
and pertinent to the provision of utility, cable television, communications or other
services as set forth in any service agreement or any right-of--way permit. RIGHT-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 aright-of--way permit or
by administrative regulation.
RIGHT-OF-WAY PERMIT. The non-exclusive grant of authority to use or
occupy all or a portion of city's rights-of--way granted pursuant to this chapter.
SERVICE AGREEMENT. A valid service agreement, franchise agreement or
operating agreement issued by the city pursuant to the Dublin City Charter, the Dublin
City Codes or Constitution and laws of Ohio or the United States, and accepted by any
person, pursuant to which such person may operate or provide utility, cable television,
communication or other such service to consumers within the city.
SPECIAL RIGHT-OF-WAY PERMIT. Shall have the meaning set forth in §
98.03(B)(2).
UTILITY RIGHT-OF-WAY PERMIT. Shall have the meaning set forth in
98.03(B)(3).
(Ord. 152-97, passed 12-15-97)
§ 98.02 PURPOSE AND SCOPE OF CHAPTER.
(A) The purpose of this chapter is to provide for the regulation of the use or
occupation of all rights-of--way in the city, the issuance of right-of--way permits to
persons for such use or occupancy and to set forth the policies of the city related
thereto.
(B) Aright-of--way permit issued pursuant to this chapter does not take the
place of any service agreement, franchise, license, or permit which may be additionally
required by law. Each permittee shall obtain any and all such additional state, federal or
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city franchises, licenses or permits necessary to the operation and conduct of its
business or the occupation or use of any right-of--way.
(C) The City Manager is hereby directed and empowered to enforce the
provisions of this chapter.
(D) The city's objectives regarding rights-of--way is:
(1) Promote cooperation among telecommunications service
providers and the city to minimize public inconvenience during ROW work and
disruption of public property; and ensure safe and efficient use of the city's streets,
right-of--ways, and easements;
(2) Promote the availability of a wide range of utility,
communications, and other services, including the rapid deployment of new
technologies and innovative services to city businesses and residents at reasonable
costs;
(3) Enhance the city's economic development programs;
(4) Ensure adequate public compensation for private use of the ROW
and related costs;
(5) Promote and require reasonable accommodation of all users of
ROW;
(6) To comply with the Telecommunications Act of 1996 and all
applicable laws, rules and regulations;
(7) To promote the utilization of rights-of--way for the public health,
safety and welfare; and,
(8) To assure that applicants have the financial, technical and
managerial resources to comply with this chapter and the provisions of any right-of--way
permit issued hereunder.
(E) All right-of--way permits granted hereunder shall be non-exclusive and
no property right of any nature shall be created by the granting of a permit under this
chapter.
(F) This chapter does not apply, and nothing herein should be construed to
apply the provisions of this chapter, to structures or facilities owned or operated by the
city or any city operations that occupy or use the rights-of--way. It is specifically
contemplated, however, that all city departments or divisions that utilize the rights-of-
way shall carry out their operations in a manner consistent with the policy set forth in
this chapter, including participation and cooperation in all joint planning hereunder and
identification of structures and facilities located in the rights-of--way.
(Ord. 152-97, passed 12-15-97)
§ 98.03 PROHIBITION; TYPES OF PERMITS.
(A) No person shall use, occupy, construct, own or operate structures or
facilities in, under or over any rights-of--way or any public property within the city
unless such person first obtains aright-of--way permit and conforms to the requirements
set forth therein and in this chapter; provided, however, that right-of--way permits shall
not be required for the following uses:
(1) Newspaper stands;
(2) Carts;
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(3) Sidewalk cafes;
(4) Parking lots; and
so long as, in the opinion of the City Manager, that such use:
(a) Has received or will receive all other necessary permits;
(b) Is not inconsistent with policy of the city;
(c) Does not adversely affect the public health, safety or
welfare; and
(d) Does not materially interfere with other lawful uses of the
right-of--way.
The City Manager may adopt administrative regulations controlling and further defining
residential purposes and to otherwise implement the determinations to be made under
this section.
(B) The following types ofright-of--way permits are available:
(1) General right-of--way permit. Right-of--way permit granted to
persons who desire and are granted authority to utilize rights-of--way generally, except
that the permit shall not permit the holder to use Dublink Area until such time as the
administrative regulations are promulgated and effective pursuant to § 98.10 and,
provided, however, that nothing in this chapter or in any general right-of--way permit
shall be construed to authorize the permittee to provide any utility, cable television,
communications or other services for which the city may lawfully require a service
agreement should the city determine to require the same; and
(2) Special right-of--way permit. Right-of--way permit granted to a
person for a specific, limited use, including but not limited to residential purposes, of
the rights-of--way or a specific portion thereof.
(3) Utility permit. Right-of--way permit granted to a person who is a
traditional monopoly provider of essential services, who possesses a valid operating
agreement and who desire and are granted authority to utilize rights-of--way generally.
As of the date of this chapter, gas, electric, water and sewer are such utilities. The City
Manager may adopt regulations controlling and defining "traditional monopoly provider
of essential services". A utility permittee may be granted a waiver of some or all the
requirements by this chapter at the discretion of the City Manager.
(C) Any such right-of--way permit may also allow the use of specified public
property for the uses set forth in the right-of--way permit and in this chapter.
(D) Each right-of--way permit shall specify the use or uses for which it is
granted and contain such other non-discriminatory terms and conditions as are
appropriate and as are set forth in the service agreement.
(E) Right-of--way permits or the rights of a permittee thereunder are not
transferable without the prior express written approval of the City Manager upon a
showing that the recipient has the financial, technical and managerial resources to
comply with the obligations of this chapter and its right-of--way permit. The City
Manager may adopt administrative regulations providing procedures for transfer of
right-of--way permits.
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(F) No person shall be authorized to occupy the Dublink Area, except as
follows:
mk,... (1) A person/provider who acquires a general or utility permit under
the terms of this chapter, who has existing facilities in the Dublink Area on the
effective date of this chapter shall be permitted to continue to keep said existing
facilities in the Dublink Area. Any additional facility requirements will be in
accordance with the administrative regulations promulgated by the City Manager.
(2) A valid holder of a special right-of--way permit.
(3) A valid holder of a general or utility permit subject to the
administrative regulations promulgated by the City Manager.
(Ord. 152-97, passed 12-15-97) Penalty, see § 98.99
§ 98.04 APPLICATION PROCEDURE, APPEAL.
(A) Applications for a general right-of--way permit by a holder of a service
agreement shall be filed in such form and in such manner as the service agreement
requires. There shall be no application fee. Any person holding a valid service
agreement shall be granted a general right-of--way permit. Such general right-of--way
permit shall be valid so long as the underlying service agreement is valid and the
applicable provisions of that service agreement, the general right-of--way permit and of
this chapter are complied with; provided, however, that such general right-of--way
permit shall only entitle the permittee to utilize the rights-of--way, in accordance with
this chapter, for purposes directly related to the provision of the specific services for
which it has a service agreement. Any other right-of--way use by such permittee shall
require a separate or amended general right-of--way permit issued pursuant to §
98.04(C).
(B) Applications for a utility right-of--way permit by a holder of a service
agreement shall be filed in such form and in such manner as the administrative
regulations require. There shall be no application fee. Any person who is a traditional
monopoly provider of essential services and who holds a valid service agreement shall
be granted a utility right-of--way permit. Such utility permit shall be valid so long as the
underlying service agreement is valid and the applicable provisions of that service
agreement, the utility right-of--way permit and of this chapter are complied with;
provided, however, that such utility right-of--way permit shall only entitle the permittee
to utilize the rights-of--way, in accordance with this chapter, for purposes directly related
to the provision of the specific services for which it has a service agreement. Any other
right-of--way use by such permittee shall require a separate or amended utility right-of-
way permit issued pursuant to § 98.04(C) of this chapter.
(C) All other applications for general right-of--way permits, or amendments
or renewals thereof, shall be filed in such form and in such manner as the administrative
regulations require, along with an application fee of $1,000. The City Manager shall
determine if the application is in order and shall, within 45 days of the receipt of a
complete application, issue a written report regarding such application. The report shall
recommend that the City Council deny or grant the general right-of--way permit, subject
to any appropriate terms and conditions, in accordance with the criteria set forth in this
chapter. The City Manager's report shall be served upon the applicant by regular U.S.
mail along with a notice of when the City Council will consider the same. The City
Council shall then consider such recommendation and make a final determination in
writing, within 60 days of the City Manager's report, as to whether or not such general
right-of--way permit amendments and/or renewal should be granted and if so, upon what
terms and conditions. The term of each such general right-of--way permit shall be for
five years from acceptance, unless the applicant requests a lesser term.
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(D) An application for a special right-of--way permit amendment or renewal
thereof, shall be filed in such form and in such manner as the administrative regulations
require, along with an application fee of $500. If the City Manager determines that the
application is in order and that the criteria set forth in § 98.05 of this chapter have been
met, and that the application should be granted, the City Manager shall, within 45 days
of a receipt of a completed application, conditionally grant or renew such a special
right-of--way permit amendment and/or renewal subject to any appropriate terms and
conditions or deny the same. The City Manager's conditional grant, renewal or denial
shall be served upon the applicant by regular U.S. mail. Such conditional denial, grant
or renewal shall become final unless modified or rejected by the City Council within 30
days of issuance by the City Manager, or unless appealed pursuant to § 98.04(E) of this
chapter. The term of such special right-of--way permit shall be three years from
acceptance, unless the applicant requests a lesser term. A special right-of--way permit
for residential purposes maybe granted for an indefinite term from acceptance, but may
be canceled by the City Manager with 60 days written notice.
(E) Any applicant may appeal the failure of the City Manager to grant a
right-of--way permit, or to recommend it to be granted upon terms and conditions
acceptable to the applicant, to the City Council. In order to perfect such appeal, the
applicant shall file, within ten days of the City Manager's determination or
recommendation or within 60 days of the filing of the application if the City Manager
has taken no action, an appeal to the City Council. The City Council shall then review
the matter and render a final determination after affording the applicant an opportunity
to be heard either in person or in writing. Except to the extent otherwise applicable by
law, the City Council's decision shall be final.
(F) Any right-of--way permittee shall, within 30 days of the initial granting of
any right-of--way permit hereunder, file a written acceptance of its permit in such form
and in such manner as the administrative regulations require, and if and as applicable,
pay apro-rata portion of the fees required by § 98.07(B) or (C).
(Ord. 152-97, passed 12-15-97)
§ 98.05 CRITERIA FOR GRANTING PERMITS.
(A) A general right-of--way permit shall be granted to any applicant holding a
valid service agreement.
(B) A utility right-of--way permit shall be granted to any applicant holding a
valid service agreement and who is a traditional monopoly provider of essential services
as defined by the City Manager.
(C) (1) A general or a special right-of--way permit shall be granted to an
applicant upon a determination that:
(a) The granting of the right-of--way permit will contribute to
the public health, safety or welfare in the city; and
(b) The granting of the right-of--way permit will be consistent
with the policy of the city as set forth in § 98.02(D); and
(c) The applicant is not delinquent on any taxes or other
obligations to the city or Franklin County and has the requisite financial, managerial
and technical ability to fulfill all its obligations hereunder.
(2) A special right-of--way permit for residential purposes may be
granted at the City Manager's discretion if the City Manager finds that granting such
permit will not be inconsistent with the policy of the city set forth in § 98.02(D) and the
city policies, ordinances and regulations.
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(D) The City Manager or the City Council may impose such conditions on
the granting of a permit as deemed reasonably required to be consistent with the criteria
set forth in this § 98.05 and to promote the policy of the city set forth in § 98.02(D).
(Ord. 152-97, passed 12-15-97)
§ 98.06 OBLIGATIONS OF PERMITTEES; CONDITIONS OF PERMITS.
(A) In addition to the other requirements set forth herein and in the
administrative regulations each permittee, shall:
(1) Use its best efforts to cooperate with other permittees and the city
for the best, most efficient, most aesthetic and least obtrusive use of rights-of--way,
consistent with safety, and to minimize traffic and other disruptions including street
cuts;
(2) Participate in such joint planning, construction and advance
notification of right-of--way work, excepting such work performed in an emergency;
provided the permittee uses its best efforts to contact the city at the earliest possible
time after beginning such work, as may be required by Chapter 97 and this chapter and
as may be more specifically set forth in administrative regulations promulgated
pursuant to this chapter;
(3) Cooperate with other Permittees in utilization of, construction in
and occupancy of private rights-of--way, but only to the extent the same is consistent
with the grant thereof or is not additionally burdensome to any property owner;
(4) Upon reasonable written notice of and at the direction of the City
Manager, and at the permittee's sole cost, promptly remove or rearrange facilities as
necessary, such as during any construction, repair or modification of any street,
sidewalk, city utility or other public improvement, or as part of the City Manager's
determination that designated portions of its rights-of--way should accommodate only
underground facilities or that facilities should occupy only one side of a street or other
public way, or if an additional or subsequent city or other public use of rights-of-
way is inconsistent with the then current uses of such permittee or for any other
reasonable cause as determined by the City Manager pursuant to § 98.14(B) of this
chapter.
(5) Provide maps and other information relating to a permittee's
facilities and operations within the rights-of--way and compliance with this chapter in
such form, including digital or other form compatible with any city geographic
information system, as the administrative regulations require. Said maps and
information shall, at a minimum, locate, describe and identify all uses of, and "as built"
structures and facilities of such permittee in, the rights-of--way;
(6) Perform all work, construction, maintenance or removal of
structures and facilities within the right-of--way, including tree trimming, in accordance
with good engineering and construction practice including any appropriate safety codes
and in accordance with the administrative regulations and use its best efforts to repair
and replace any street, curb or other portion of the right-of--way, or facilities or structure
` located therein, to a condition to be determined by the City Manager to be adequate
under current standards and not less than materially equivalent to its condition prior to
such work and to do so in a manner which minimizes any inconvenience to the public,
the city and other permittees, all in accordance with the administrative regulations
adopted hereunder or under city codes.
(7) Register with underground reporting services as set forth in the
administrative regulations;
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(8) Use its best efforts to cooperate with the city in any emergencies
involving the rights-of--way in such manner as the administrative regulations shall
require including the maintenance of a 24 hour emergency contact;
(9) Using distinct identification, identify all structures and facilities
E in the rights-of--way in accordance with the administrative regulations; and
(10) Designate a single point of contact for all purposes hereunder, as
well as comply with such other contact and notice protocols as the administrative
regulations require.
(B) Each permittee shall assure that any subcontractor or other person
performing any work or service in the right-of--way on behalf of said permittee will
comply with all applicable provisions of this chapter and its right-of--way permit and
will identify the permittee for whom such subcontractor is working. Said permittee shall
be responsible and liable hereunder for all actions of any such subcontractor or others as
if said permittee had performed or failed to perform any such obligation.
(Ord. 152-97, passed 12-15-97) Penalty, see § 98.99
(C) Following the initial receipt of a right-of--way permit (general,
special or utility) every permittee shall be required to apply for and obtain the City
Manager's approval for any new placement of facilities in the right-of--way or
material modification to current facilities in the right-of--way. For the purposes of
this section "facilities" shall be mean, but not necessarily be limited to poles,
transformers, conductors, conduits, ducts, cables, pipes, wires, fibers, lines, mains,
vaults, manholes, amplifiers, appliances, towers, antennae, wave guides, optic
fiber, microwave, and laser beams. For the purposes of this section "material
modification" shall be mean, but not necessarily be limited to, a material increase,
decrease, alteration, or change to current facilities regarding: type of
infrastructure, capacity, size, service, technology, or delivery methodology. The
application for the City Manager's approval shall be filed in such form and in such
manner as the administrative regulations require. Within fifteen (15) days of the
receipt of a completed application for such new facilities installation or material
modification, the City Manager shall either: approve the new facilities installation
or material modification as requested; deny the new facilities installation or
material modification as requested; or conditionally approve the new facilities
installation or material modification subject to the permittee's following certain
amendments to the work as may be required by the City Manager. When
reviewing an application for new facility installation or material modification, the
City Manager shall take into consideration all applicable current and future right-
of-way usage needs, the health and safety of the public, responsible land use
planning requirements, economic development issues, aesthetics, and any other
reasonable considerations as may required by Chapter 98 of the Code of
Ordinances. When granting a conditional approval for new facilities installation
or material modification that contains required amendments, the City Manager
may require the facilities, at the permittee's sole cost: be placed in certain specific
locations of the right-of--way, meet certain technological or physical parameters,
and/or be located entirely underground. A permittee may appeal the City
Manager's decision regarding the approval or denial of a request for new facilities
installation or material modification of a permittee's facilities to the City Council
in accordance with § 98.04(E) of this chapter.
§ 98.07 PERMIT FEES AND AUDITING.
(A) Except for any fees charged pursuant to the city's annual fee ordinance,
general right-of--way permittees who have a service agreement granted by Council shall
not be liable for any additional right-of--way permit fees over and above any service
agreement or franchise fees specified in its service agreement or franchise for uses of
rights-of--way directly related to the uses for which such permittee holds its service
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agreement or franchise, so long as the amount of such fees due in each quarter is equal
to or greater than the amounts otherwise due the city pursuant to § 98.07(B). If the
amount due under § 98.07(B) is more than said service agreement or franchise fees,
` then the permittee shall receive a credit in each quarter against such amount for all such
fees paid in such quarter, and shall pay the balance to the city as set forth in § 98.07(E).
Regarding service agreements that allow non cable services (as defined in said service
agreement) to be provided, the provisioning of non cable services shall be subject to this
chapter in all aspects, including all fees.
(B) (1) In addition to any fees charged pursuant to the city's annual fee
ordinance, all general right-of--way and utility permittees, shall pay an annual fee, for
each calendar year, based upon the miles of business district right-of--way which the
permittee occupies or desires to occupy in said calendar year as follows:
Less than one mile $10,000
From one to ten miles $17,500
From 11 to 100 miles $37,500
From 100 to 500 miles $100,000
(2) Quarterly payments shall be made on or before March 31, June
30, September 30 and December 31 of the calendar year.
(3) There shall be no fee, other than those set forth in the annual fee
ordinance, for occupation ofright-of--way outside of the business district right-of--way.
(C) In addition to any fees charged pursuant to the city's annual fee
ordinance, special right-of--way permittees shall pay an annual fee of $2 per lineal foot
of right-of--way used or occupied, but not less than $1,000. This fee may be waived for
all special right-of--way permits for residential purposes. Such fee shall be paid in
advance for each calendar year prior to January 31 of such year.
(D) Further specification regarding the determination and calculation of the
fees set forth in § 98.07(B) and (C) maybe set forth in the administrative regulations.
(E) All fees pursuant to this chapter shall be paid by check, money order or
wire transfer to the city as the administrative regulations require.
(F) Each general right-of--way permittee shall maintain books, records, maps,
documents and other evidence directly pertinent to its calculation of payments to the
city in accordance with generally accepted accounting principles. The City Manager,
the City Finance Director or either's designated agents shall have reasonable access to
any books, records, maps, documents and other evidence for inspection, copying and
audit to the extent necessary to assure that the payments hereunder are accurate and that
all right-of--way permittees fully comply with the provisions of this chapter and their
respective right-of--way permits.
(G) The fees and minimums specified in § 98.07(B) and (C) may be
modified or adjusted or waived by regulation; provided, however, that such fees remain
reasonable and non-discriminatory and that the total revenues to the city generated by
such fees represent not more than a reasonable allocation of the total costs to the city of
planning, regulating, purchasing, maintaining and governing the rights-of--way,
including any costs of joint planning, joint utility and telecommunications facilities
placed in the right-of--way by the city for the future use of permittees, enforcement of
I
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this chapter, and related costs and overheads, including but not limited to an appropriate
allocation of the costs of any geographic information systems utilized by the city.
(H) The City Manager may enter into agreements with permittees under
which permittees may provide facilities or services, or both, to the city in lieu of all or a
portion of such fees. All such agreements shall be approved by Council.
(Ord. 152-97, passed 12-15-97)
§ 98.08 JOINT PLANNING AND CONSTRUCTION.
In order to promote the purposes of this chapter and the policy set forth herein,
the City Manager shall adopt administrative regulations requiring and governing joint
planning and construction for all right-of--way permittees except for special right-of--way
permittees for residential purposes.
(Ord. 152-97, passed 12-15-97)
§ 98.09 CITY USE OF FACILITIES.
The city shall have the right to install and maintain, free of charge, upon any
poles and within any underground pipes or conduits or other facilities of any service,
general or special right-of--way permittee, any facilities desired by the city unless:
(A) Such installation and maintenance unreasonably and materially interferes
with existing and future operations of the permittee; and
(B) Such installation and maintenance would be unduly burdensome to such
permittee. Each permittee shall cooperate with the city in planning and designing its
facilities so as to accommodate the city's reasonably disclosed requirements in this
regard.
(Ord. 152-97, passed 12-15-97)
§ 98.10 ADOPTION OF ADMINISTRATIVE REGULATIONS.
(A) In accordance with the provisions of this Chapter 98, the City Manager
may promulgate administrative regulations, as the City Manager deems appropriate
from time to time, to carry out the express purposes and intent of this chapter, including
administrative regulations governing the procedures of the City Council and permitting
process.
(B) Such administrative regulations shall not materially increase the
obligations of any permittee hereunder; provided, however, that:
(1) The adoption of administrative regulations increasing fees
pursuant to § 98.07(G);
(2) Requiring the placement of facilities in designated portions of the
rights-of--way underground pursuant to § 98.06(A)(4); or,
(3) Requiring the overbuilding of facilities shall not be construed as
materially increasing the obligations of a permittee.
(C) Within 90 days after the effective date of this chapter, the City Manager
shall develop and implement administrative regulations by filing the same with the
Clerk of Council for publication. The proposed administrative regulations shall become
effective the earliest allowed by law.
(Ord. 152-97, passed 12-15-97)
§ 98.11 INDEMNITY; INSURANCE.
(A) Except for special right-of--way permittees for residential purposes, each
permtttee shall, as a condition of its right-of--way permit, indemnify, protect and hold
harmless the city from any claim, loss or damage arising in any way from permittee's
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occupation or use of the right-of--way, including but not limited to the construction,
operation or maintenance of permittee's facilities, and from any such permittee's
negligent or wrongful act or omission.
(B) Except for special right-of--way permittees for residential purposes, each
permittee, as a condition of its permit, shall keep in force a policy or policies of liability
insurance, having such terms and in such amounts as are set forth in the administrative
regulations, covering its facilities and operations pursuant to its right-of--way permit.
The city shall be named as an additional insured on such policy.
(Ord. 152-97, passed 12-15-97)
§ 98.12 REMOVAL OF FACILITIES.
(A) Except for special right-of--way permittees for residential purposes, any
right-of--way permittee that intends to discontinue use of any facilities within the rights-
of-way shall submit a written notice to the City Manager describing the portion of the
facilities to be discontinued and the date of discontinuance, which date shall not be less
than 30 days from the date such notice is submitted to the City Manager. The permittee
may not remove, destroy or permanently disable any such facilities alter such notice
without the written approval of the City Manager. The permittee shall remove and
secure such facilities as set forth in the notice unless directed by the City Manager to
abandon such facilities in place.
(B) Upon such abandonment and acceptance by the city in writing, full title
and ownership of such abandoned facilities shall pass to the city without the need to pay
compensation to the permittee. The permittee shall, however, continue to be responsible
for all taxes on such facilities or other liabilities associated therewith, until the date the
same was accepted by the city.
(C) Should any permittee fall, after notice, to remove or rearrange facilities
at the City Manager's request as specified in § 98.06(A)(4), the city may, at its option
and in addition to the imposition of any penalties or other remedies hereunder,
undertake or cause to be undertaken, such necessary removal or rearrangement. The city
shall have no liability for any damage caused by such removal or rearrangement and the
permittee shall be liable to the city for all costs incurred by the city in such removal or
rearrangement.
(Ord. 152-97, passed 12-15-97) Penalty, see § 98.99
§ 98.13 REVOCATION.
(A) In addition to any other rights set out in this chapter, the city reserves the
right to revoke, in accordance with the procedures set forth in § 98.13(B), any right-of-
way permit in the event such permittee violates any material provision of this chapter or
its right-of--way permit.
(B) The City Manager shall give a permittee 30 days prior written notice of
an intent to revoke said permittee's right-of--way permit. Such notice shall state the
reasons for such action. If the permittee cures the violation or other cause within the 30
day notice period, or if the permittee initiates efforts satisfactory to the City Manager to
remedy the stated violation, the City Manager may rescind said notice of revocation. If
the permittee does not cure the stated violation or other cause or undertake efforts
satisfactory to the City Manager to remedy the stated violation the City Manager may
recommend said permit be revoked. After granting the permittee an opportunity to be
heard in person or in writing, the City Council may revoke the right-of--way permit.
Unless otherwise required by law, the decision of the City Council shall be final.
(C) Unless otherwise permitted by the City Manager, if aright-of--way
permit is revoked, all facilities located in the rights-of--way or located upon public
property pursuant to such permit shall be removed at the sole expense of the permittee.
(Ord. 152-97, passed 12-15-97)
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§ 98.14 RESERVATION OF RIGHTS.
(A) Nothing in this chapter should be construed so as to grant any right or
interest in any right-of--way or public property other than that explicitly set forth herein
or in a permit.
(B) Nothing in this chapter shall be construed to prevent the city from
constructing, maintaining, repairing or relocating any city utility, communications or
like facilities; grading, paving, maintaining, repairing, relocating or altering any street,
public property or right-of--way; or constructing, maintaining, relocating, or repairing
any sidewalk, bikepath or other public work or improvement. To the extent that such
work requires temporary or permanent relocation or rearrangement of any facilities or
structures of any permittee, such relocating or rearrangement shall be accomplished at
the sole cost of the permittee in such time and in such manner as set forth in the
administrative regulations and in alignment with the city's five year capitol budget
process.
(Ord. 152-97, passed 12-15-97)
§ 98.15 TEMPORARY MOVEMENT OF FACILITIES.
In the event it is necessary to move or remove temporarily any of the permittee's
wires, cables, poles, or other facilities placed pursuant to this chapter, in order to
lawfully move a large object, vehicle, building or other structure over the streets of the
city, upon two weeks written notice by the City Manager to the permittee, the permittee
shall, at the expense of the person requesting the temporary removal of such facilities,
comply with City Manager's request.
(Ord. 152-97, passed 12-15-97)
§ 98.16 FORECLOSURE AND RECEIVERSHIP.
(A) Upon the foreclosure or other judicial sale of the permittee's facilities
located within the right-of--way, the permittee shall notify the City Manager of such fact
and its permit shall be deemed void and of no further force and effect.
(B) The city shall have the right to revoke, pursuant to the provisions of §
98.13 any right-of--way permit granted pursuant to this chapter, subject to any applicable
provisions of law, including the Bankruptcy Act, 120 days after the appointment of a
receiver or trustee to take over and conduct the business of the permittee, whether in
receivership, reorganization, bankruptcy or other action or proceeding, unless such
receivership or trusteeship shall have been vacated prior to the expiration of said 120
days, or unless:
(1) Within 120 days after his election or appointment, such receiver
or trustee shall leave fully complied with all the provisions of the relevant right-of--way
permit and of this chapter and remedied all defaults thereunder; and,
(2) Such receiver or trustee, within said 120 days, shall have
executed an agreement, duly approved by the Court having jurisdiction in the premises,
whereby such receiver or trustee assumes and agrees to be bound by each and every
provision of the relevant right-of--way permit and this chapter.
(Ord. 152-97, passed 12-15-97)
§ 98.17 NON-ENFORCEMENT AND WAIVERS BY CITY.
The permittee shall not be relieved of its obligation to comply with any of the
provisions of its right-of--way permit or this chapter by reason of any failure of the city
or to enforce prompt compliance.
(Ord. 152-97, passed 12-15-97)
§ 98.18 CAPTIONS.
RECORD OF ORDINANCES
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The captions and headings in this chapter are for convenience and reference
purposes only and shall not affect in any way the meaning of interpretation of this
chapter.
(Ord. 152-97, passed 12-15-97)
§ 98.99 PENALTY.
(A) In addition to any other penalties set forth in this chapter, and the remedy
of specific performance which maybe enforced in a court of competent jurisdiction, the
following penalties shall apply.
(1) Any person or permittee violating 98.03(A) or 98.12(A), or
failing to pay when due any forfeiture imposed pursuant to § 98.99(A)(2), shall be
guilty of a misdemeanor of the fourth degree. Each day such violation continues shall
be deemed a separate offense.
(2) For failure to comply with any other provision of this chapter, the
penalty shall be a civil forfeiture, payable to the city, in the amount of $500 per day for
each day of violation. In addition, for failure to timely comply with a notice by the City
Manager to remove or rearrange facilities pursuant to § 98.06(A)(4), an additional civil
forfeiture equal to any costs incurred by the city as a result of such failure, including but
not limited to any penalties charged the city by its contractors occasioned thereby, shall
be imposed.
(B) Any permittee maybe excused for violations of this chapter and its right-
of-way permit due to Force Majeure.
(Ord. 152-97, passed 12-15-97)
Section 2. This Ordinance is hereby declared to be an emergency necessary for the
immediate preservation of public health, safety and welfare. Therefore, this Ordinance
shall go into immediate effect.
Passed this day of /(~0 y~~~~ 2002.
Mayor -Presiding Officer
ATTEST:
Clerk of Council
I hereby certify that copies of this
Ordinance/Resolution were posted in the
City of Dublin in accordance with Section
731.25 of the Ohio Revised Code.
~
~ lerk of Council, Dublin, Ohio