Maumee City Zoning Code
TITLE SIX
Right of Way Code
1180.01 DEFINITIONS.
For the purposes of this Chapter and Sections 1180.01 through 1180.21, the following words and phrases shall have the following meanings ascribed to them respectively, regardless of whether or not the words and phrases are capitalized and are hereby incorporated into the standards and right of way requirements:
(a) Affiliate. Each person who falls into one (1) or more of the following categories:
(1) Each person having, directly or indirectly, a controlling interest in a provider,
(2) Each person in which a provider has, directly or indirectly a controlling interest,
(3) Each officer, director, general partner, limited partner or shareholder holding an interest of fifteen percent (15%) or more, joint venturer or joint venture partner, of a provider, and
(4) Each person, directly or indirectly, controlling, controlled by, or under common control with the provider; provided that affiliate shall in no event mean any limited partner or shareholder holding an interest of less than fifteen percent (15%) of such provider, or any creditor of such provider solely by virtue of its status as a creditor and which is not otherwise an affiliate by reason of owning a controlling interest in, being owned by, or being under common ownership, common management, or common control with, such provider.
(b) Applicant. Any person who seeks to obtain a certificate of registration and/or a permit.
(c) Application. The process by which an applicant submits a request to obtain certificate of registration and/or a permit.
(d) Application fee. The fee paid to the City for application for a Certificate of Registration.
(e) Bankruptcy Act. The regulations promulgated by Title 11 of the United States Code.
(f) Best effort(s). 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, traffic congestion, ongoing maintenance, pavement and sidewalk concerns, and cost.
(g) Cable Franchise. Has the same meaning as "franchise" in the Cable Communications Policy Act of 1984, 98 Stat. 2779, 47 U.S.C.A. 522.
(h) Cable operator. Has the same meaning as in the Cable Communications Policy Act of 1984, 98 Stat. 2779, 47 U.S.C.A. 522.
(i) Cable service. Has the same meaning as in the Cable Communications Policy Act of 1984, 98 Stat. 2779, 47 U.S.C.A. 522.
(j) Certificate of registration. The document issued to each provider and its unique system to occupy the rights-of-way within the City that outlines the terms of that occupancy of the rights-of-way.
(k) City. The City of Maumee, Ohio.
(l) City Council. The governing body of the City.
(m) City Administrator. The administrator of the municipal government known as the City of Maumee, Ohio.
(n) Collocation or collocate means to install, mount, maintain, modify, operate, or replace wireless facilities or lines on or adjacent to a wireless support structure or utility pole.
(o) Construct. Shall mean, but not be limited to, 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, 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.
(p) Construction. Shall mean, but 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, 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.
(q) Construction Bond. A bond posted to ensure proper and complete construction and/or repair of a facility and the affected rights-of-way pursuant to a permit.
(r) Construction and Major Maintenance Plan. 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. The maps required shall be drawn on a City of Maumee base and include streets, curbs, sidewalks, trees, or any other structures and include dimensions and elevations.
(s) Construction permit. The permit which must be obtained before a person may construct in, locate in, occupy, maintain, move, or remove facilities from, in or on a right-of-way.
(t) County. Lucas County, Ohio (except for the purpose of the provision of sewer and water service within or through the City). County specifically excludes any and all contractors, agents or other persons acting on behalf of said county.
(u) Credible. Worthy of being believed.
(v) Design Guidelines-Creating a Quality Environment. The design standards set forth in the Maumee Ohio codified Ordinances or this Code provision. The standards in this code provision shall require co-location of arial power, optic fiber, cable, phone, or other attachments to poles and any costs for co-location shall be paid by applicant and shall require placement of power, cable, optic fiber, phone, or other related cables to be installed below the surface by the least disruptive means. No additional structures or poles shall be placed in the right of way without a prior permit.
(w) Service Department. The Service Department of the City.
(x) Director of Service. The Director of the Service Department, Capital Projects manager, or his or her designee.
(y) Emergency. A condition that poses a clear and immediate danger to life or health, or of a significant loss of property.
(z) Facility(ies). Any tangible thing located in any rights-of-way within the City; but shall not include 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.
(aa) FCC. The Federal Communications Commission, or any successor thereto.
(bb) Full. Unable to accommodate any additional facilities as determined by the Director of Service in accordance with the principles of public health, safety, and welfare, following a reasonable analysis taking into consideration: all applicable law; commonly accepted industry standards; traffic issues; sidewalk and pedestrian access; and routine engineering practices.
(cc) In. When used in conjunction with rights-of-way, means in, on, above, within, over, below, under or through a right-of-way.
(ee) Law. Any local, state and/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 Sections 1180.01 through 1180.21 or at any time during the location of, and/or while a provider's facilities are located in the public rights-of-way.
(ff) Minor maintenance permit. A permit, which must be obtained before a person can perform minor maintenance in or on the rights-of-way.
(gg) Ohio Manual of Uniform Traffic Control Devices. The uniform system of traffic control devices promulgated by the Ohio Department of Transportation pursuant to Ohio R.C. § 4511.09.
(hh) O.R.C. The Revised Code of the State of Ohio.
(ii) Ohio Utility Protection Service. The utility protection service as defined in Ohio R.C. § 153.64 and/or § 3781.26 or a statutory successor thereto.
(jj) Open video service. Any video programming services provided to any person through the use of rights-of-way, which person is certified by the FCC to operate an open video system pursuant to § 651 et seq. of the Telecommunications Act of 1996 (codified at 47 U.S.C. Title VI, Part V), regardless of the facilities used.
(kk) Permit. A construction permit, a minor maintenance permit or a special privilege permit, as the context requires.
(ll) Permit cost. All direct, incidental, and indirect costs actually incurred or realized by the City for permit issuance, permit oversight, inspections and pavement degradation resulting from construction activity.
(mm) Permit fee. Money paid to the City for a permit to construct in the rights-of-way as required by this Code.
(nn) Permitee. Any person to whom a construction permit, minor maintenance permit and and/or special privilege permit has been granted by the City and not revoked.
(oo) Person. Any natural or corporate person, business association or other business entity including, but not limited to, a partnership, limited liability company, a sole proprietorship, a political subdivision, a trust, trustee,a public or private agency of any kind, a utility, a successor or assign of any of the foregoing, or any other legal entity.
(pp) Plan Board. The Planning Commission of the City of Maumee
(qq) Provider. A person who owns or operates a system and has a valid certificate of registration. The city, county and cable television operators operating pursuant to a valid Cable Franchise, shall also be considered providers.
(rr) PUCO. The Public Utilities Commission of Ohio as defined in Ohio R.C. § 4901.02.
(ss) R.C.O.M. The Codified Ordinances of the City of Maumee.
(tt) Registration maintenance fee. The money paid to the City to maintain a certificate of registration and compensate the City for all actual costs incurred by the City in the management, administration, and control of the rights-of-way of the City, and which are not reasonably recoverable by the City through construction permit fees or other approved recovery mechanisms.
(uu) Removal Bond. A bond posted to ensure the availability of sufficient funds to remove a provider's facilities upon abandonment or disuse, or discontinuance of a provider's use or occupation of the rights-of-way.
(vv) Restoration. The process and the resultant effects by which a right-of-way is returned to a condition as good as or better than its condition immediately prior to the construction, including as applicable, appearance; dimensions; grade, quality and size; and landscaping including turf and soil. Restoration shall occur in accordance with the Rules and Regulations for Making Openings in a Public Way as amended from time to time. Complete repaving or replacement of roads or sidewalks may be required by the City Administrator depending on the nature of the work performed and age of the pavement or concrete in an area that is excavated. Replacement of trees and shrubs shall also be required and shall comply with Maumee Codified Ordinances and regulations.
(ww) Right(s)-of-way. The surface and space in, 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 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.
(yy) Rules and regulations for making openings in a public way. The rules and regulations governing the making and restoration of openings in streets, alleys, sidewalks, public ways, or places of the city as set forth in the Maumee Codified Ordinances and currently on file in the Service Department.
(zz) Service(s). The offering of any service for a fee directly to the public, or to such classes of users as to be effectively available directly to the public.
(aaa) Special privilege permit. The permit for special licenses and privileges that must be obtained from the Director of Service pursuant to this Chapter.
(bbb) Supplementary application. 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.
(ccc) Surety fund. A formal pledge made to secure against loss, damage, or default.
(ddd) System. Any system of conduit, cables, ducts, pipes, wires, lines, towers, antennae wave guides, optic fiber, microwave, laser beams and any associated converters, equipment or facilities or utilities designed and constructed for the purpose of producing, receiving, amplifying, delivering, or distributing services within the City. A system shall specifically include, but not necessarily be limited to electric distribution and/or transmission systems, natural or artificial gas distribution and/or transmission systems, water distribution systems, storm sewer systems, sanitary sewer systems, cable television systems, telecommunications systems (whether voice, video, data, or other), fiber optic systems, wireless communications systems, and transit electrification systems.
(eee) System representative. The specifically identified agent/employee of a provider who is authorized to direct field activities of that provider and serve as official notice agent for system related information. Any such system representative shall be required to be available at all times to receive notice of and immediately direct response to system related emergencies or situations.
(fff) Transfer. 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.
(ggg) Trenchless technology. Shall mean, but not be limited to, the use of directional boring, horizontal drilling, micro tunneling, evacuation 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.
(hh) Underground facility(ies). All lines, cables, conduits, pipes, posts, tanks, vaults, and any other facilities which are located wholly or partially underneath rights-of-way.
(iii) Unused facility(ies). Facilities located in the rights-of-way which have remained unused for six (6) months and for which the provider is unable to provide the City with a credible plan detailing the procedure by which the provider intends to begin actively using such facilities within the next six (6) months, or that it has a potential purchaser or user of the facilities who will be actively using the Facilities within the next six (6) months, or that the availability of such facilities is required by the provider to adequately and efficiently operate its system.
(jjj) Utility(ies). Any water, sewer, gas, drainage, sprinkler or culvert pipe and any electric power, telecommunication, signal, communication, or cable television conduit, fiber, wire, trackless trolley wires, cable, or operator thereof.
(kkk) Utility corridor(s). Those specific areas of the rights-of-way designated as such by the Director of Service.
(lll) Working day. Any Monday, Tuesday, Wednesday, Thursday, or Friday, but excluding legal holidays observed by the City.
(Ord. 051-2022. Passed 12-5-22.)
1180.02 RIGHTS-OF-WAY ADMINISTRATION.
(a) Administration. The City Administrator or Director of Service shall be the principal city official responsible for the administration of Sections 1180.01 through 1180.21, except as otherwise provided herein. The City Administrator may delegate any or all of the duties hereunder to the Director of Service or other designee.
(b) Right-of-Way Occupancy. Each person or entity who occupies, uses, or seeks to occupy or use the rights-of-way to operate a system located in the rights-of-way, or who has, or seeks to have, a system located in any right-of-way, shall apply for, and obtain a certificate of registration pursuant to Sections 1180.01 through 1180.21. Any person owning, operating, or maintaining a system in the rights-of-way without a certificate of registration, including persons operating under a permit, license or franchise issued by the City prior to the effective date of Sections 1180.01 through 1180.21 shall apply for and obtain a certificate of registration from the city, unless exempted as set forth herein. Application will consist of providing the information set forth herein and as reasonably required by the City Administrator.
(c) No Construction Without a Certificate of Registration. Following the effective date of Sections 1180.01 through 1180.21, no person shall construct or perform any work on or in or use any system or any part thereof located on or in any rights-of-way without first obtaining a certificate of registration. Whoever violates this section is guilty of a misdemeanor of the first degree and shall pay a minimum fine of five hundred dollars ($500.00) for each violation of this code. Each day shall constitute a separate offense if construction is commenced without a Certificate of Registration.
(d) Exceptions.
(1) The following entities are not obligated to obtain a certificate of registration: the City (exclusive of its contractors which shall be required to obtain and maintain a certificate of registration); and resellers of services that do not own any system or facilities in the rights-of-way.
(2) The following entities are required to participate in the certificate of registration process but shall be exempt from the financial obligations of the application fee and the registration maintenance fee: a county or state of Ohio governmental entity, cable operators for the purpose of providing only cable service and operating pursuant to a valid cable franchise, if exempted by state law and a video service provider for the purpose of providing only video service and operating pursuant to a valid video service authorization issued in accordance with Ohio R.C. 1332.24. In addition, cable operators shall be exempt from any requirement of the certificate of registration process that is specifically exempted by state law.
(e) Systems in Place Without a Certificate of Registration. Any system or part of a system found in a right-of-way for which a certificate of registration has not been obtained shall be deemed to be a nuisance and an unauthorized use of the rights-of-way. The City may exercise any remedies or rights it has at law or in equity, including, but not limited to abating the nuisance; taking possession of the facilities and/or noncomplying portion of such system; and/or prosecuting the violator and/or assessing any costs incurred in the inspection, removal and/or correction of any improperly installed system and assessment of penalties and fines.
(f) Future Uses. In allowing providers and permittees to place facilities in the rights-of-way, the City shall not be liable for any damages caused thereby to any provider's facilities that are already in place or that shall be placed in the rights-of-way unless those damages arise out of the sole negligence, gross negligence, willful misconduct, or fraud of the City. No provider is entitled to rely on the provisions of Sections 1180.01 through 1180.21 as creating a special duty to any provider.
(g) Discontinuance of Operations, Abandoned and Unused Facilities.
(1) A provider who has discontinued or is discontinuing its operations of any system in the City shall:
A. Provide information satisfactory to the City that the provider's obligations for its system in the rights-of-way under this section and any other sections in this Code have been lawfully assumed by another applicant and/or provider; or
B. Submit a written proposal to re-use its facilities in a manner that promotes the City's goals of providing innovative and economic solutions to efficiently and economically utilize limited rights-of-way capacity. Such proposal must be approved by the Director of Service; or
C. Submit a written proposal for abandonment of facilities in place indicating why good engineering practice would support this type of solution. The Director of Service must approve said proposal; or
D. Completely remove all specifically identified portion(s) of its system in a manner acceptable to the City within a reasonable amount of time if the City believes that there exists a reasonable justification for such removal; or
E. Submit to the city within a reasonable amount of time and in accordance with Ohio R.C. § 4905.20 and 4905.21, a proposal for transferring ownership of its facilities to the City. If a provider proceeds under this clause, the City may, at its option where lawful:
(i) Purchase the facilities; or
(ii) Unless a valid removal bond has already been posted, require the provider to post a bond in an amount sufficient to reimburse the city for reasonably anticipated costs to be incurred in removing the facilities.
(2) Facilities of a provider who fail to comply with this section and which remain unused facilities shall be deemed to be abandoned. Abandoned facilities are deemed to be a nuisance. The City may exercise any remedies or rights it has at law or in equity, including, but not limited to:
A. Abating the nuisance.
B. Taking possession of the facilities and restoring them to a useable condition subject to a finding of the PUCO pursuant to the requirements of Ohio R.C. § 4905.20 and 4905.21; or
C. Requiring removal of the facilities by the provider or by the provider's surety.
(3) If the City requires a provider to remove unused facilities in any rights-of-way, the City shall make reasonable efforts to direct that this removal occur in conjunction with other scheduled excavations of the rights-of-way. If the City abates the nuisance, it may take all action necessary to recover its costs and to abate said nuisance, including but not limited to, those methods set forth in Maumee Codified Ordinances or Ohio R.C. § 715.261.
(h) Nature of Issuance. A certificate of registration shall not convey equitable or legal title in the rights-of-way. A certificate of registration is only the nonexclusive, limited right to occupy rights-of-way in the City, for the limited purposes and for the limited period stated in the certificate of registration and in accordance with this Code. The rights to occupy the right-of-way may not be subdivided or subleased; provided, however, that two (2) or more providers may collocate facilities in the same area of the rights-of-way so long as each such provider complies with the provisions of Sections 1180.01 through 1180.21. Collocating providers may file a joint application for a construction permit. A certificate of registration does not excuse a provider from obtaining appropriate access or pole attachment agreements before collocating its facilities on facilities of others, including the City's facilities. A certificate of registration does not prevent a provider from leasing space in or on the provider's system, so long as the sharing of facilities does not cause a violation of law, including the provisions of Sections 1180.01 through 1180.21. A certificate of registration does not excuse a provider from complying with any provisions of Sections 1180.01 through 1180.21 or other applicable law.
(i) Other Approvals, Permits, and Agreements. In addition to a certificate of registration, providers shall obtain any and all regulatory approvals, permits, authorizations, or licenses necessary for the offering or provision of such services from the appropriate federal, state and local authorities and upon the City's reasonable request, shall provide copies of such documents to the City. Further, a certificate of registration issued pursuant to Sections 1180.01 through 1180.21 shall not entitle a provider to use, alter, convert to, or interfere with, the facilities, easements, poles, conduits, lines, pipelines, wires, fiber, cable or any other real or personal property of any kind whatsoever under the management or control of the City.
(j) The City Administrator may propose, and Council may adopt (and from time to time amend) the Rules and Regulations regarding Chapter 1180, Construction standards and occupancy requirements of the Right of Way. Such Rules and Regulations shall not materially increase the obligation of any provider hereunder, provided however that none of the following shall in any way be considered a material increase in obligation; the adoption of Rules and Regulations increasing Fees; the requiring of the placement of Facilities in designated portions of the Rights of Way (underground or otherwise); the overbuilding of Facilities; or the requiring of joint builds. Prior to the adoption or amendment of the Rules and Regulations, the City of Maumee shall provide written notice and a copy of the proposed language of such adoption or amendment, via United States Regular Mail, to each Provider who holds a then current Certificate of Registration. Each Provider shall then have thirty (30) days following the date of the City of Maumee's mailing to provide written comment regarding the proposed language to the City of Maumee. At least forty-five (45) days, but not more than sixty (60) days following the date of the City of Maumee's mailing, the City of Maumee shall schedule and hold a meeting, to make available a forum at which all then current Providers may address any questions, concerns and make reasonable suggestions regarding the proposed new Rules and Regulations to the City of Maumee. The City of Maumee Administrator shall, following said meeting and the review of the Providers' comments and suggestions, adopt or amend the Rules and Regulations in a manner that best serves the City of Maumee, for approval by City of Maumee Council.
(Ord. 051-2022. Passed 12-5-22.)
1180.03 CERTIFICATE OF REGISTRATION APPLICATIONS.
(a) Certificate of Registration Applications. To obtain a certificate of registration to construct, own, or maintain any system within the City, or to obtain a renewal of a certificate of registration issued pursuant to Sections 1180.01 through 1180.21, an application must be filed with the City on the form adopted by the Service Department which is hereby incorporated by reference. All applications shall be accompanied by a one thousand five hundred dollar ($1,500.00) application fee deposit, which shall be used to pay for the actual costs incurred by the City that are associated with receiving, processing, and granting of an application. At the time of its decision to either grant or deny an application the City shall assess the costs involved and either credit or debit an applicant's application fee for the appropriate amount. If the application is approved and a certificate of registration is granted, any remainder balance of the aforementioned one thousand five hundred dollars ($1,500.00) application fee deposit will be credited against and shall be an offset to the applicant's required annual registration maintenance fees until such time as the entire application fee balance is exhausted. If the application is not approved and a certificate of registration is denied, any balance of the aforementioned one thousand five hundred dollars ($1,500.00) application fee remaining after the City debits the actual costs associated with the application process, will be returned to the applicant within sixty (60) days of denial. Should the application review and administration process incur actual costs in excess of one thousand five hundred dollars ($1,500.00), the City shall require the applicant to remit such additional amounts as necessary to properly compensate the City for those added costs within sixty (60) days following issuance or denial of a certificate of registration. Any applicant who fails to timely remit such additionally required amounts shall be subject to the penalties of this chapter and the immediate revocation of any certificate of registration having been issued.
(b) Information Required for Application to Obtain a Certificate of Registration.
(1) The applicant shall keep all of the information required in this section current at all times, provided further that applicant or provider shall notify the City of any changes to the information required by this section within thirty (30) days following the date on which the applicant or provider has knowledge of such change. The information provided to the City at the time of application shall include, but not be limited to:
A. Each applicant's name, legal status (i.e., partnership, corporation, etc.), street address and e-mail address, if applicable, and telephone and facsimile numbers; and
B. The name, address, and e-mail address, if applicable, and telephone and facsimile numbers of a system representative. The system representative shall be available at all times. Current information regarding how to contact the system representative in an emergency shall be provided at the time of application and shall be updated as necessary to assure accurate contact information is available to the City at all times; and
C. A certificate of insurance provided to meet the requirements of this section shall:
(i) Verify that an insurance company licensed to do business in the State of Ohio has issued an insurance policy to the applicant.
(ii) Verify that the applicant is insured on an occurrence basis against claims for personal injury, including death, as well as claims for property damage arising out of the:
a. Use and occupancy of the rights-of-way by the applicant, its officers, agents, employees, and contractors; and
b. Placement and use of facilities in the rights-of-way by the applicant, its officers, agents, employees, and contractors, including, but not limited to, protection against liability arising from any and all operations, damage of underground facilities and collapse of property.
(iii) Name the City, its elected officials, officers, employees, agents, and volunteers as an additional insured as to whom the comprehensive general liability and completed operation and products liability insurance required herein are in force and applicable and for whom defense will be provided as to all such coverages.
(iv) Require that the City be notified thirty (30) days in advance of cancellation of, or coverage changes in, the policy. The liability insurance policies required by this section shall contain the following endorsement:
a. "It is hereby understood and agreed that this policy may not be diminished in value, canceled nor the intention not to renew be stated, until thirty (30) days after receipt by the city, by registered mail, return receipt requested, of a written notice addressed to the City Administrator or her/his designee of such intent to cancel, diminish or not to renew."
b. Within thirty (30) days after receipt by the City of said notice, and in no event later than five (5) days prior to said cancellation, the provider (or applicant) shall obtain and furnish to the Director of Service a certificate of insurance evidencing replacement insurance policies.
(v) Satisfy the requirements for comprehensive liability coverage, automobile liability coverage and umbrella coverage as follows:
a. Comprehensive general liability insurance: comprehensive general liability insurance to cover liability, bodily injury, and property damage must be maintained. Coverage must be written on an occurrence basis, with the following minimum limits of liability and provisions, or their equivalent:
1. Bodily injury:
Each occurrence - $1,000,000.00
Annual aggregate - $3,000,000.00
2. Property damage:
Each occurrence - $1,000,000.00
Annual aggregate - $3,000,000.00
3. Personal injury:
Annual aggregate - $3,000,000.00
4. Completed operations and products liability shall be maintained for six (6) months after the termination of a certificate of registration.
5. Property damage liability insurance shall include coverage for the following hazards: E-explosion, C-collapse, U-underground.
b. Comprehensive auto liability insurance: Comprehensive auto liability insurance to cover owned, hired, and non-owned vehicles must be maintained. Applicant may maintain comprehensive auto liability insurance as part of applicant's comprehensive general liability insurance, however, said insurance is subject to approval by the City Administrator or her or his designee. Coverage must be written on an occurrence basis, with the following limits of liability and provisions, or their equivalent:
1. Bodily injury:
Each occurrence - $1,000,000.00
Annual aggregate - $3,000,000.00
2. Property damage:
Each occurrence - $1,000,000.00
Annual aggregate - $3,000,000.00
3. Additional insurance: The city reserves the right to require any other insurance coverage it deems necessary after review of any proposal submitted by applicant.
4. Self-insurance: Those applicants maintaining a book value in excess of $20,000,000.00 may submit a statement requesting to self-insure. If approval to self-insure is granted, applicant shall assure the City that such self-insurance shall provide the City with no less than would have been afforded to the City by a third-party insurer providing applicant with the types and amounts of coverage detailed in this section. This statement shall include:
a. Audited financial statements for the previous year; and
b. A description of the applicant's self-insurance program; and
c. A listing of any and all actions against or claims made against applicant for amounts over $1,000,000.00 or proof of available excess umbrella liability coverage to satisfy all total current claim amounts above $20,000,000.00.
5. City's examination of, or failure to request or demand, any evidence of insurance in accordance with Sections 1180.01 through 1180.21 shall not constitute a waiver of any requirement of this section and the existence of any insurance shall not limit applicant's obligations under Sections 1180.01 through 1180.21.
6. Documentation that applicant or provider maintains standard workers' compensation coverage as required by law. Similarly, provider shall require any subcontractor to provide workers' compensation coverage in amounts required by law for all of the subcontractor's employees.
7. If the person is a corporation, a copy of the certificate of incorporation (or its legal equivalent) as recorded and certified to by the secretary of state (or legal equivalent) in the state or country in which incorporated.
8. A copy of the person's certificate of authority from the PUCO and/or the FCC, if the person is lawfully required to have or actually does possess such certificate from said commission(s) and any other approvals, permits, or agreements.
9. Upon request of the city, a narrative (or if applicable PUCO/FCC application information) describing applicant's proposed activities in the City including credible information detailing applicant's financial, managerial, and technical ability to fulfill applicant's obligations under Sections 1180.01 through 1180.21 and carry-on applicant's proposed activities.
(c) Criteria for Issuance of a Certificate of Registration.
(1) In deciding whether to issue a certificate of registration, the city shall consider:
A. Whether the issuing of the certificate of registration will contribute to the health, safety, and welfare of the City and its citizens.
C. Whether applicant has submitted a complete application and has secured all certificates and other authorizations required by law in order to construct and operate a system in the manner proposed by the applicant.
D. Whether the applicant is delinquent on any taxes or other obligations owed to the City, county, or State of Ohio.
E. Whether the applicant has the requisite financial, managerial, and technical ability to fulfill all its obligations under this chapter and the issuance of a certificate of registration.
F. Any other applicable law.
G. Whether the applicant has complied with right-of-way rules and regulations in the past.
(d) Grant or Denial of an Application for a Certificate of Registration.
(1) The City, not later than sixty (60) days after the date of filing by an applicant of a completed application, shall grant or deny the application.
(2) If an application for a certificate of registration is denied, the City shall provide to the applicant, in writing, the reasons for denying the application and such other information as the applicant may reasonably request to obtain consent.
(e) Obligations of a Provider Upon Receipt of a Certificate of Registration. In addition to the other requirements set forth herein and, in the Rules, and Regulations for Making Openings in a Public Way each provider shall:
(1) Use its best efforts to cooperate with the City of Maumee, other providers and users of the rights-of-way and the City for the best, most efficient, and least obtrusive use of rights-of-way, consistent with safety, and to minimize traffic and other disruptions including street cuts; and
(2) When possible, participate in joint planning, construction, and advance notification of rights-of-way work, as may be required by the City; and
(3) Upon reasonable written notice, and at the direction of the Director of Service, promptly remove or rearrange facilities as necessary for public safety; and
(4) Perform all work, construction, maintenance or removal of facilities within the rights-of-way, including tree trimming, or boring or placement of facilities where there are tree be in accordance with Maumee Regulations and/or requirements, and in compliance with good engineering, construction and arboricultural practice including any appropriate state building codes, safety codes and law and use best efforts to repair and replace any street, curb or other portion of the rights-of-way, or facilities located therein, to a condition to be determined by the Director of Service 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 providers, all in accordance with all applicable provisions of this chapter, any rules and regulations the City may adopt and the Maumee Codified Ordinances; and
(5) Construct, install, operate, and maintain its facilities and system in a manner consistent with all applicable laws, ordinances, construction standards and governmental requirements including, but not limited to, the National Electric Safety Code, National Electric Code, and applicable FCC or other federal, state and/or local regulations; and
(6) Be on notice that removal of trees, shrubs, or other vegetation within the rights-of-way of the city requires prior written approval by the City Administrator. Any such tree, shrub, or other vegetation that is removed without the City Administrator's written permission shall be replaced, at the sole expense of the responsible person, or entity with a healthy tree or vegetation of like kind. Be on notice that the use of any subcontractor to remove vegetation or vegetation management programs within the Rights of Way of the City of Maumee require prior written approval by the City Administrator or his/her designee. Any such activities, unless an Emergency, shall only be performed following the prior written approval of the City Administrator or his/her designee and must be performed in accordance with standard horticultural and arboreal practices as promulgated by entities such as the National Arbor Day Foundation, the International Society of Arboriculture, and the Tree Care Industry, all as may be required by the City of Maumee. Pruning shall at a minimum meet or exceed the requirements of the most current version of the American National Standards Institute ANSI A300 standard. Any additionally required horticultural and arboreal practices and guidelines shall be described in the Rules and Regulations adopted by the City of Maumee. Emergency removal of trees or the use of vegetation management programs within the Rights of Way of the City of Maumee may be performed in Rights of Way as described herein and in accordance with the Rules and Regulations, but the City Administrator shall be provided notice of such Emergency work being performed within two (2) Business Days of the start of the work. Any non-emergency tree removal or the use of vegetation management programs within the Rights of Way that is performed without the City Administrator or designee's written permission shall subject a Person to the penalties set forth herein and may further require that the tree or vegetation be replaced, at the sole expense of the responsible Person or entity, with a healthy tree, shrub or vegetation of like kind and quality; and
(7) Warrant that all worker facilities, conditions, and procedures that are used during construction, installation, operation, and maintenance of the provider's facilities within the rights-of-way shall comply with all applicable standards of the Federal Occupational Safety and Health Administration; and
(8) Use its best efforts to cooperate with the City in any emergencies involving the rights-of-way; and
(9) Provider shall, weather permitting, remove all graffiti, signs, or stickers within thirty (30) calendar days of notice. Provider shall remove any and all graffiti, signs or stickers on any of the provider's facilities located within the City rights-of-way. Should the provider fail to do so, the City may take whatever action is necessary to remove the graffiti, signs or stickers and bill the provider for the cost thereof; and
(10) Providers shall field identify their facilities in the rights-of-way whenever providers are notified by the City that the City has determined that such identification is reasonably necessary in order for the City to begin planning for the construction, paving, maintenance, repairing, relocating or in any way altering any street or area in the rights-of-way as defined in this chapter. The City shall notify the providers of the city's date to begin the process at least thirty (30) days prior to the commencement of said activities; in field identifying facilities:
A. Providers shall identify all facilities that are within the affected rights-of-way using customary industry standards and distinct identification; and
B. Facilities will be so marked as to identify the provider responsible for said facilities consistent with the Rules and Regulations for Making Openings in a Public Way; and
C. Should any such marking interfere with the facilities function, create a safety problem, or violate any safety code, alternative methods of marking the facilities may be approved by the Director of Service.
D. All marking should be clearly readable from the ground and be consistent with the Rules and Regulations for Making Openings in a Public Way.
E. If necessary, relocate their facilities on a permanent basis, if said ongoing use or maintenance of their facilities in that right of way would interfere with traffic, safety, or use of the street.
F. Determine whether there is an alternative location that the conduit, pipe, line, or other utility may be placed, such as in an alley or side street which will not be as disruptive to traffic or pedestrians during installation, repair, or replacement
(f) Establishment of Utility Corridors.
(1) The Director of Service may assign or create specific corridors within the right-of-way, or any particular segment thereof as may be necessary, for each type of facilities that are, or that the Director of Service expects, may someday be, located within the rights-of-way. Providers shall be required to use said corridors when replacing or installing their facilities.
(2) Any provider whose facilities are in the rights-of-way and are in a position at variance with utility corridors established by the Director of Service shall at the time of the next construction of the area, excluding normal maintenance activities, move such facilities to their assigned position within the rights-of-way. Existing underground facilities located within a designated utility corridor shall not be required to relocate into adjacent or alternative portions of the rights-of-way unless they are in conflict with an actual or proposed public improvement project or if the Director of Service requires their relocation when the provider is replacing facilities or when the current location poses potential harm or unnecessary risks to the public, business or the City. The above requirements may be waived by the Director of Service in limited circumstances, for good cause shown including, but not limited to, consideration of such factors as: the remaining economic life of the facilities, public safety, customer service needs, and hardship to the provider. If a provider is denied a requested waiver from the above requirements, the provider may appeal the denial of the Director of Service to the City Administrator.
(4) Providers may enter into written agreements to use existing poles and conduits with the owners of same and shall install their facilities within the rights-of-way and in existing conduit if possible and on existing poles where available, subject to approval by the City of Maumee.
(5) No facility placed in any rights-of-way shall be placed in such a manner that interferes with vehicular or pedestrian travel on such rights-of-way.
(6) Unless otherwise stated in a certificate of registration or permit, all facilities within the rights-of-way shall be constructed and located in accordance with the Maumee Codified Ordinances and with the following provision:
Whenever existing facilities that have been traditionally located overhead are located in whole or in part underground in a certain area within the City, a provider who desires to place its facilities in the same area must locate its facilities underground. Whenever a provider is required to locate or relocate facilities underground within a certain area of the City of Maumee, every Provider with facilities within the same area of Maumee shall concurrently relocate their facilities underground. (Ord. 051-2022. Passed 12-5-22.)
1180.04 REPORTING REQUIREMENTS.
(a) Construction and Major Maintenance Plan. Each provider shall, at the time of initial application and using its best efforts by January 1 of each following year, file a construction and major maintenance plan with the Service Department. Such construction and major maintenance plan shall be provided for all geographical areas requested by the Director of Service, up to and including the entire geographical area of the City. It shall be submitted using a format(s) mutually agreeable to the provider and the City and shall contain the information determined by the Director of Service to be necessary to facilitate the coordination and reduction in the frequency of construction in the rights-of-way. The construction and major maintenance plan shall include, but not be limited to, all currently scheduled and/or anticipated construction projects for the next calendar year, if none are scheduled or anticipated then the plan shall so state. In an effort to assist providers with the completion of their annual construction and major maintenance plan, the Service Department, on or before November 1 of each year, will send each provider's system representative a descriptive narrative (and any mapping information reasonably available) for all the planned right-of-way improvements and/or scheduled maintenance that the City then currently intends to undertake during the next calendar year.
(b) Mapping Data. With the filing of its application for a certificate of registration, a provider shall be required to accurately inform the City of the number of miles (rounded up to the nearest mile) of right-of-way the provider's system then currently occupies and begin submitting to the City all information that currently exists and which can be provided regarding the location of its facilities in the right-of-way in hard copy or in the most advanced format (including, but not limited to, electronic and/or digital format) then currently being used by the provider that is then currently capable of technologically being read (or readily converted to a readable form) by the City. Unless otherwise required a provider shall have up to one (1) year from the date of the provider's initial filing of an application for a certificate of registration to completely submit all the mapping data for a provider's system in the entire geographical area of the City which it owns or over which it has control that are located in any rights-of-way of the City in the most advanced format (including, but not be limited to electronic and/or digital format) then currently being used by the provider that is then currently capable of technologically being read (or readily converted to a readable form) by the City. Any time after the issuance of a certificate of registration, and upon the reasonable request of the Director of Service, a provider shall be required to provide to the City any additional location information for any facilities which it owns or over which it has control that are located in any rights-of-way of the City required by the City. Any and all actual direct, incidental and indirect costs incurred by the City during the process of reviewing, inputting and/or converting a provider's mapping information to comport with the City's then current standard format (whether electronic or otherwise) shall be directly billed to, and must be timely remitted by, the provider. Failure to pay such mapping costs within sixty (60) days of receipt of an invoice shall subject an applicant or provider to revocation of its certificate of registration and the penalties of this chapter. Further, each provider that has been issued a certificate of registration shall accurately inform the City on or before each subsequent January 1 of the number of miles (rounded up to the nearest mile) of right-of-way the provider's system then occupied as of the immediately previous December 1. The Director of Service may, in the future, adopt additional specifications and further define or modify the mapping data requirements under this section for reasons including, but not limited to, changes in technology or the law regarding public disclosure of a provider's mapping information. When the City modifies and/or amends the mapping data requirements, the City shall use best efforts to avoid unreasonably increasing the burden to the providers that may be associated with satisfying the amended mapping requirements. When the mapping requirements are amended, each provider shall be served with a copy of the new specifications or modifications by regular U.S. Mail to the system representative identified in each certificate of registration; provided, however, that any failure of any provider to actually receive such notice shall not in any way affect the validity or enforceability of said specifications or modifications.
The City of Maumee reserves the right to create its own public way inventory map and may recover the cost of creation of a map through the registration process.
A provider shall notify the City of Maumee if the provider believes that any specific document or portion of a document being submitted to the City of Maumee is exempt from the public records disclosure requirements of Ohio R.C. 149.43. The notification shall be in writing and indicate the specific document or portion of a document that the provider believes is exempt from disclosure. The notification shall include the legal basis for the claimed exemption, including the applicable statutory reference and any additional information necessary to make a determination of exemption for each specific document or portion of a document. If a public records request is made for documents submitted by a provider, the City of Maumee will consider the written notification in making its own independent determination of whether a specific document or portion of a document is exempt from disclosure.
(Ord. 051-2022. Passed 12-5-22.)
1180.05 COMPENSATION FOR CERTIFICATE OF REGISTRATION.
(a) Compensation. As compensation for the City's costs to administer Sections 1180.01 through 1180.21, manage, administer, and control the rights-of-way and maintain each certificate of registration issued, every provider or any person operating a system shall pay to the City registration maintenance fees beginning January 1, 2023. The registration maintenance fee shall be determined and assessed to providers and other persons operating a system or otherwise using and occupying the rights-of-way in accordance with the following process and formula:
(1) The City by January 1 of each year shall calculate all actual and incurred costs associated with rights-of-way management, administration, and control for the previous calendar year that the City was not able to reasonably recover through construction permit fees or other recovery mechanisms provided for in Sections 1180.01 through 1180.21.
(2) Providers and applicants shall accurately inform the City upon application for a certificate of registration and on or before each subsequent January 1 of the number of miles (rounded up to the nearest mile) of right-of-way the provider's system then occupied as of the immediately previous December 1.
(3) The City shall total the entire number of miles of right-of-way reported as being used or occupied by all providers.
(4) The City shall divide the calculated costs by the total number of miles of right-of-way reported as being used or occupied by all providers to arrive at a per-mile cost number.
(5) The City shall then multiply each provider's mileage calculation by the per-mile cost calculation .The product shall be a provider's then current annual registration maintenance fee.
(6) The City shall perform its annual calculation of registration maintenance fees following receipt of the providers required January 1 mileage report. Registration maintenance fees shall be invoiced to providers on or about February 1 of each calendar year and shall be due thirty (30) days following receipt.
(7) Cable companies operating under non-exclusive cable franchises for the purposes of providing cable service, video service providers as defined by Ohio R.C. Section 1332.24, providers of open video system services, which compensate the City under other mechanisms shall have the mileage of the right-of-way they use and/or occupy included in the calculations, but shall not be required to contribute to the recovery of rights-of-way costs as defined by Sections 1180.01 through 1180.21 with the exception of permit costs.
(b) Timing. Registration maintenance fees shall be paid by February 1 of each calendar year. Registration maintenance fees shall be paid in full for the first year of the registration as a condition of the certificate of registration becoming effective. Fees may be prorated from the effective date of the certificate of registration to the end of the calendar year if less than one full year.
(c) Taxes and Assessments. To the extent taxes or other assessments are imposed by taxing authorities on the use of City property as a result of a provider's use or occupation of the rights-of-way, the provider shall be responsible for payment of such taxes. Such payments shall be in addition to any other fees payable pursuant to Sections 1180.01 through 1180.21 and shall not be considered an offset to, or in lieu of, the fees and charges listed in Sections 1180.01 through 1180.21. The registration maintenance fee is not in lieu of any tax, fee, or other assessment except as specifically provided in Sections 1180.01 through 1180.21, or as required by applicable law.
(d) Interest on Late Payments. In the event that any registration maintenance fee is not paid to the City by March 1 of the year the fee is due, the provider shall pay a monthly late charge of ten percent (10%) of the unpaid balance for each month or any portion thereof for which payment is not made.
(e) No Accord and Satisfaction. No acceptance by the City of any registration maintenance fee shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of such registration maintenance fee payment be construed as a release of any claim the City may have for additional sums payable.
(Ord. 051-2022. Passed 12-5-22.)
1180.06 OVERSIGHT AND REGULATION.
(a) Reports. Upon reasonable request of the City Administrator or Director of Service, a provider shall provide the City with a list of any and all material communications, public reports, petitions, or other filings, either received from or submitted to any municipal, county, state or federal agency or official (and any response thereto submitted by or received by a provider), and any other information or report reasonably related to a provider's obligations under Sections 1180.01 through 1180.21 which in any way materially effects the operation of the system or a provider's representations and warranties set forth herein, but not including tax returns or other filings which are confidential. Upon request, a provider shall promptly, but in no case later than thirty (30) business days following the request, deliver to the City a complete copy of any item on said list. Upon the request of the City, a provider shall promptly submit to the City any information or report reasonably related to a provider's obligations under Sections 1180.01 through 1180.21, its business and operations with respect to the system or its operation, in such form and containing such information as the City shall specify. Such information or report shall be accurate and complete and supplied within thirty (30) days.
(b) Confidentiality. All information submitted to the City that is considered trade secret and/or proprietary information or information that upon public its disclosure would be highly likely to place critical portions of the provider's system in real danger of vandalism, sabotage, or an act of terrorism, must be clearly marked as such when submitted. The City shall exercise all reasonable legal protections so as not to publicly disclose to any third party such information unless required by law. The City shall, following receipt of a request for public disclosure of clearly marked trade secret and/or proprietary information submitted by a provider, endeavor to use reasonable best efforts to timely place the provider's system representative on notice that such a request for public disclosure has been made.
(d) Right of Inspection and Audit. The City's designated representatives shall have the right to inspect, examine, or audit during normal business hours and upon reasonable notice to a provider under the circumstances; documents, records, or other information which pertain to a provider's operation of a system within the City that are related to its obligations under Sections 1180.01 through 1180.21. All such documents shall be made available within the City or in such other place that the City may agree upon in writing in order to facilitate said inspection, examination, or audit. (Ord. 051-2022. Passed 12-5-22.)
1180.07 REGISTRATION TERM.
1180.08 INDEMNITY.
(a) Indemnity Required. Each certificate of registration issued pursuant to Sections 1180.01 through 1180.21 shall contain provisions whereby providers agree to defend, indemnify, and hold the City and its agents, officers, elected officials, employees, volunteers, and subcontractors harmless from and against all damages, costs, losses, or expenses:
(1) For the repair, replacement, or restoration of City property, equipment, materials, structures, and facilities which are damaged, destroyed or found to be defective as a result of such provider's acts or omissions; and
(2) From and against any and all claims, demands, suits, causes of action, and judgments:
A. For damage to or loss of the property of any person, and/or the death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person;
B. Arising out of, incident to, concerning or resulting from the act or omissions of such provider, its agents, employees, and/or subcontractors, in the performance of activities pursuant to such certificate of registration, no matter how, or to whom, such loss may occur.
(3) In any event, all persons using or occupying the rights-of-way agree to defend, indemnify, and hold harmless the City as set forth above as a condition of their use and occupancy of the rights-of-way.
(Ord. 051-2022. Passed 12-5-22.)
1180.09 CIVIL FORFEITURES.
In addition to any other penalties set forth in this Chapter and the remedy of specific performance, which may be enforced in a court of competent jurisdiction, the City may assess an additional penalty of civil forfeiture for failure to comply with any provision of Sections 1180.01 through 1180.21. Such penalty shall be a monetary sum, payable to the City, in the amount of five hundred dollars ($500.00) per twenty-four (24)-hour day of violation and any subsequent portion of a day less than twenty-four (24) hours in length. Prior to assessing said penalty, the City will provide written notice to the provider detailing the failure to comply with a specific provision of Sections 1180.01 through 1180.21. Such notice shall also indicate that said penalty shall be assessed in fifteen (15) calendar days subsequent to the date of receipt if compliance is not achieved. If a provider desires to challenge such penalty, provider must request a public hearing before the City Administrator within ten days of service of the notice. Such public hearing shall be held within thirty (30) days of the provider's request. If provider requests such hearing before the City Administrator, such penalty shall be temporarily suspended. However, if, after the public hearing, the City Administrator determines that provider failed to comply with the specific provision(s) of Sections 1180.01 through 1180.21 referenced in the notice, such penalty shall be assessed starting with the fifteen (15) calendar days after receipt of the notice referenced in this section and continuing each day thereafter until compliance is achieved. The determination of the City Administrator shall be final.
(Ord. 051-2022. Passed 12-5-22.)
1180.10 TERMINATION OF CERTIFICATE OF REGISTRATION.
(a) Default Notice Provided. The City through its Service Department shall give written notice of default to a provider if the City, in its sole discretion, determines that a provider has:
(1) Violated any material provision or requirement of the issuance or acceptance of a certificate of registration or any law and failed to cure as may be required; or
(2) Attempted to evade any provision of the issuance of a certificate of registration or the acceptance of it; or
(3) Practiced any fraud or deceit upon City; or
(4) Made a material misrepresentation of fact in the application for a certificate of registration.
(b) Cure Required. If a provider fails to cure a default within thirty (30) calendar days after such notice is served by the City, then such default shall be a material default and City may exercise any remedies or rights it has at law or in equity to terminate the certificate of registration. If the Director of Service decides there is cause or reason to terminate, the following procedure shall be followed:
(1) City shall serve a provider with a written notice of the reason or cause for proposed termination and shall allow a provider a minimum of ten (10) calendar days to cure its breach.
(2) If the provider fails to cure within ten (10) calendar days, the Director of Service may declare the certificate of registration terminated.
(3) The provider shall have ten (10) calendar days to appeal the termination to the City Administrator. All such appeals shall be in writing. If the City Administrator determines there was not a breach, then the City Administrator shall overturn the decision of the Director of Service. Otherwise, the City Administrator shall affirm the decision of the Director of Service to terminate. The determination of the City Administrator shall be final. (Ord. 051-2022. Passed 12-5-22.)
1180.11 UNAUTHORIZED USE OF PUBLIC RIGHTS-OF-WAY.
(d) Distinct and Separate Offense. No person shall fail to comply with the provisions of Sections 1180.01 through 1180.21. Each and every failure to comply shall be deemed a distinct and separate offense. Each and every day any violation of Sections 1180.01 through 1180.21 continues shall constitute a distinct and separate offense.
(Ord. 051-2022. Passed 12-5-22.)
1180.12 RIGHTS OF INDIVIDUALS.
(a) No Discrimination. No provider shall deny service, deny access, or otherwise discriminate against any other Person on the basis of race, color, religion, national origin, disability, age, gender or sexual preference. A provider shall comply at all times with all other applicable law relating to nondiscrimination.
(b) Equal Employment. A provider shall adhere to the applicable equal employment opportunity requirements of law, as now written or as amended from time to time.
(c) Privacy. A provider shall adhere to subscriber privacy laws and shall take reasonable steps to prevent the invasion of any other person's right of privacy or other personal rights through the use of the system as such rights are delineated or defined by applicable law. A provider shall not, without lawful court order or other legal authority, utilize any system's capability for unauthorized personal surveillance of any person.
(Ord. 051-2022. Passed 12-5-22.)
1180.13 PEG REQUIREMENTS FOR OPEN VIDEO SYSTEMS.
Any provider that receives a certificate from the FCC to provide Open Video Services in the City shall notify the City of such certification. Any provider that operates an Open Video System shall comply with all applicable FCC rules, including those regarding channel capacity support for public educational and governmental access ("PEG"), and any additional requirements imposed by the City which are not inconsistent with such FCC rules.
(Ord. 051-2022. Passed 12-5-22.)
1180.14 ASSIGNMENT OR TRANSFER OF OWNERSHIP AND RENEWAL.
(a) Assignment or Transfer Approval Required. A certificate of registration shall not be assigned or transferred, either in whole or in part, other than to an affiliate, without the prior written consent of the City, which consent shall not be unreasonably withheld. Any assignment or transfer of certificate of registration, including an assignment or transfer by means of a fundamental corporate change, requires the written approval of the City.
(b) Procedure to Request Assignment or Transfer Approval. The parties to the assignment or transfer of certificate of registration shall make a written request to the City for its consent in the form of the certificate of registration application. The City shall reply in writing within sixty (60) days of actual receipt of the request and shall indicate its approval of the request or its determination that a public hearing is necessary. City may conduct a public hearing on the request within thirty (30) days of such determination if it determines that a sale or transfer of the certificate of registration adversely affects the City.
(c) Notice and Hearing. Notice of a hearing shall be given fourteen (14) days prior to the hearing by publishing notice thereof once in a newspaper of general circulation in the City. The notice shall contain the date, time and place of the hearing and shall briefly state the substance of the action to be considered by City.
(d) Review by City. City will review the qualifications (including, but not limited to legal, technical, and financial where appropriate) of the proposed assignee or transferee and terms of the existing certificate of registration. City will make its decision in writing setting forth any conditions for assignment or transfer. Within 120 days of actual receipt of the request for assignment or transfer, the City shall approve or deny such assignment or transfer request in writing.
(e) Fundamental Corporate Change. For purposes of this section, fundamental corporate change means the sale or transfer of a controlling interest in the stock of a corporation or the sale or transfer of all or a majority of a corporation's assets, merger (including a parent and its subsidiary corporation), consolidation or creation of a subsidiary corporation. For the purposes of this section, fundamental partnership change means the sale or transfer of all or a majority of a partnership's assets, change of a general partner in a limited partnership, change from a limited to a general partnership, incorporation of a partnership, or change in the control of a partnership.
(f) Certificate of Registration and Assignee/Transferee Replacement Issuance Required. In no event shall a transfer or assignment of ownership or control be ultimately acceptable to the City without transferee or assignee requesting and being issued a replacement certificate of registration within ninety (90) days of transfer or assignment.
(g) Not a Transfer. Notwithstanding anything to the contrary, no such consent or approval shall be required for a transfer or assignment to any person controlling, controlled by or under the same common control of the original holder of the certificate of registration.
(Ord. 051-2022. Passed 12-5-22.)
1180.15 CONSTRUCTION, RELOCATION, AND RESTORATION.
(a) Utility Engineering Study Required.
(1) Prior to commencement of any initial construction, repair, extension, or relocation of facilities in the rights-of-way, except for minor repair or maintenance or relocations requested or caused by a third party (excluding the City) or another permittee, a permittee shall conduct a utility engineering study on the proposed route of construction expansion or relocation. Where such construction and/or relocation is requested or caused by a third party, every permittee located within the rights-of-way at issue or involved with the work shall use all best efforts to cooperate and assist any other permittee or person who is directed by the City to perform the required utility engineering study. A utility engineering study consists of, at minimum, completion of the following tasks:
A. 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.
B. Visibly survey and record the location and dimensions of any facilities along the proposed construction route, including, but not limited to, manholes, catch basins, utility access holes, maintenance holes, sewers, valve boxes, culverts, signs, poles, trees, shrubs, landscaping, railroads, buildings, utility boxes, posts and visible street cut repairs. Show any item or feature that may be affected by the proposed work.
C. Determine and record the presence and precise 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 request of the Director of 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 right-of-way but shall not necessarily mean the depth of other facilities in the rights-of-way.
D. Plot and incorporate the data obtained from completion of the tasks described in and on the construction permittee's proposed system route maps, construction plans, plan sheets or computer aided drafting and design (CADD) files, or other data files in a format compatible with that used by the City.
E. Where the proposed location of facilities and the location of existing underground facilities appear to conflict on the plans drafted 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 permittee shall not excavate more than a three (3) feet by three (3) feet square hole in the rights-of-way to complete this task.
F. 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.
(b) Copy to City. Upon completion of the tasks described in the application, the construction permittee shall plot and incorporate the data on the permittee's proposed system route maps, construction plans, plan sheets or CADD files, or other data files in the best and most advanced format available to both the City and the provider and deliver a copy to the Service Department.
(c) Qualified Firm. All utility engineering studies conducted pursuant to this section shall be performed by the permittee if in the discretion of the Director of Service the construction permittee is qualified to complete the project itself, alternatively utility engineering studies shall be performed by a firm specializing in utility engineering that is approved by the City.
(d) Cost of Study. The permittee shall bear the cost of compliance with this Chapter.
(e) Construction Schedule. Unless otherwise provided for in Sections 1180.01 through 1180.21, or unless the Director of Service waives any of the requirements of this section due to unique or unusual circumstances, a permittee shall be required to submit a written construction schedule to the City five (5) working days before commencing any work in or about the rights-of-way, and shall further notify the City not less than one working day in advance of any excavation in the rights-of-way. This section shall apply to all situations with the exception of circumstances (emergency situations) and (minor maintenance).
(f) 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 and the City's Design Guidelines-Creating a Quality Environment.
(2) The City shall have the power to prohibit or limit the placement of new, replaced, repaired, 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 with respect to essential utilities, 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 and nondiscriminatory and competitively neutral treatment among providers. The City reserves the right to require placement of new, repaired or replacement facilities in a different right of way or a right of way corridor, or in existing conduit or require co-location on existing poles or structures, or new poles if deemed necessary by the City.
(g) Least Disruptive Technology. 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. Specifically, every permittee when performing underground construction, if technically and/or technologically feasible, shall utilize trenchless technology, including, but not limited to, horizontal drilling, directional boring, and micro tunneling. In addition, all cable, wire, or fiber optic cable installed in the subsurface rights-of-way pursuant to Sections 1180.01 through 1180.21 may be required to be installed in conduit, and if so required, no cable, wire or fiber optic cable may be installed pursuant to Sections 1180.01 through 1180.21 using "direct bury" techniques.
(h) Special Exceptions.
(1) The City may grant a special exception to the requirements of this Chapter if a permittee, upon application, demonstrates with written evidence that:
A. The exception will not create any threat to the public health, safety, or welfare.
B. Permittee demonstrates that the there is a significantly increased economic burden and the potential adverse impact on the permittee's construction schedule resulting from the strict enforcement of the requirement actually or effectively inhibits the ability of the permittee to provide services in the City. Short term economic burdens and short term impacts shall not qualify for relief. The City may consider the long term impact on any project, including the necessity to avoid construction or repairs, or replacement of facilities in the future on main roads, damage to other infrastructure and other factors as set forth herein or other Maumee Codified Ordinances
C. The permittee demonstrates that the requirement unreasonably or unlawfully discriminates against the permittee in favor of another person.
D. The requirements requested by the City herein create an unreasonable economic burden for the permittee that outweighs any benefit or potential benefit to the City.
(i) Relocation of Facilities.
(1) A provider shall as promptly as reasonably possible and at its own expense, permanently remove and relocate its facilities on property owned by the City of Maumee or in the right-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 the same or better condition it was in 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 poles of the same or comparable size. The Director of 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.
B. When the public health, safety, and welfare requires it, or when necessary to prevent interference with the safety and convenience of vehicular or pedestrian travel over the rights-of-way.
(2) Notwithstanding the foregoing, a provider who has facilities in the rights-of-way subject to a vacation or narrowing that is not required for the purposes of the City, shall have an easement in such vacated portion or excess portion.
(3) If, in the reasonable judgment of the City, a provider fails to commence removal and/or relocation of its facilities as designated by the City, within thirty (30) days after the City's removal order, 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.
(j) Pre-Excavation Facilities Location.
(1) 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 approximate vertical placement of all its facilities and notify the City of Maumee Administrator of said marking so said locations can be reviewed before excavation is commenced.
(2) All providers shall notify and work closely with the excavation contractor and Maumee officials in an effort to establish the exact location of its facilities and the best procedure for excavation.
(k) Rights-of-Way Restoration.
(1) The work to be done under the permit, and the restoration of the rights-of-way as required herein, weather permitting, 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 Maumee Codified Ordinances or other specifications as may be set forth by the City, and must inspect the area of the work and use reasonable care to maintain the same condition for twelve (12) months thereafter. If a permittee is unable to timely complete the restoration of rights-of-way due to unreasonable inclement weather conditions, the permittee shall complete the restoration of the rights-of-way as soon as weather conditions make it possible to do so and upon said completion notify the City.
(3) If the City chooses to allow permittee to restore the rights-of-way, the permittee shall at the time of application for 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 its approximate pre-excavation condition. If, twelve (12) months after completion of the restoration of the rights-of-way, the City determines that the rights-of-way have been professionally 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 by the City. The City shall have the authority to prescribe the manner and extent of the restoration and may do so in written procedures of general application or on a case-by-case basis. The City in exercising this authority shall be guided by the following standards and considerations: the number, size, depth and duration of the excavations, disruptions or damage to the rights-of-way; the traffic volume carried by the rights-of-way; the character of the neighborhood surrounding the rights-of-way; the pre-excavation condition of the rights-of-way; the remaining life-expectancy of the rights-of-way affected by the excavation; whether the relative cost of the method of restoration to the permittee is in reasonable balance with the prevention of an accelerated depreciation of the rights-of-way that would otherwise result from the excavation, disturbance or damage to the rights-of-way; and the likelihood that the particular
method of restoration would be effective in slowing the depreciation of the rights-of-way that would otherwise take place. Methods of restoration may include, but are not limited to, patching the affected area, replacement of the rights-of-way base at the affected area, and in the most severe cases; milling, overlay and/or street reconstruction of the entire area of the rights-of-way affected by the work.
(5) By restoring the right-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 Service Department, correct all restoration work to the extent necessary using the method required by the Service Department. Weather permitting, said work shall be completed within five calendar days of the receipt of the notice from the Service Department.
(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, may do such work. In that event, the permittee shall pay to the City, within thirty (30) days of billing, the restoration 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.
(l) Damage 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 the permittee and pursue any and all legal or equitable remedies.
(2) Each provider shall be responsible for the cost of repairing any facilities or replacing any trees in the rights-of-way which it or its facilities damage or which are removed as part of any project. Each provider shall be responsible for the cost of repairing any damage to the facilities of another provider or trees caused during the City's response to an emergency occasioned by that provider's facilities.
(m) Rights-of-Way Vacation.
(1) If the City vacates a right-of-way which contains the facilities of a provider, such vacation shall be subject to the provisions of Maumee Codified Ordinances or Ohio R.C. § 723.04.1.
(2) If the vacation requires the relocation of the provider's facilities; and
A. If the vacation proceedings are initiated by the provider, the provider must pay the relocation costs; or
B. If the vacation proceedings are initiated by the City or other person or persons, for a public purpose of the City, the provider or permittee must pay the relocation costs unless otherwise agreed to by the City, the provider or permittee.
(n) Installation Requirements. The excavation, backfilling, restoration, and all other work performed in the rights-of-way shall be performed in conformance with specifications as promulgated by the City and in accordance with the minimum standards set forth in these provisions or in the Maumee Codified Ordinances.
(o) Inspection. When the construction under any permit hereunder is completed, the permittee shall notify the Service Department.
(1) 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.
(2) At the time of inspection, the inspector may order the immediate cessation of any work which poses a serious threat to the life, health, safety, or well-being of the public, violates any law or which violates the term and conditions of the permit and/or this Code.
(3) The inspector may issue an order to the permittee for any 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. An order may be appealed to the Director of Service . The decision of the Director of Service may be appealed to the City Administrator 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 Service that the violation has been corrected. If such proof has not been presented within the required time, the Director of Service may revoke the permit.
(p) Other Obligations.
(1) Obtaining a construction permit does not relieve permittee of its duty to obtain all other necessary permits, licenses, easements, and authority to use the right of way and to pay all fees required by any other City, county, state, or federal laws.
(2) Permittee shall comply with all requirements of all State of Ohio and Federal laws, including the Ohio Utility Protection Service.
(3) 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.
(4) 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.
(5) Permittee shall not obstruct a right-of-way so that the natural free and clear passage of water through the gutters or other waterways shall be interfered with.
(6) 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.
(7) Tree roots and trees in the right of way shall be protected during any right of way project by the Permitee.
(q) 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. 051-2022. Passed 12-5-22.)
1180.16 MINOR MAINTENANCE PERMIT.
(1) Minor maintenance means:
A. The routine repair or replacement of facilities with like facilities not involving construction and not requiring traffic control for more than thirty (30) minutes at any one location; or
B. Construction on thoroughfares and arterials between the hours of 9:00 a.m. and 3:00 p.m. that does not impede traffic and does not involve a street, pavement, curb, or sidewalk cut without first obtaining the approval of the Director of Service; or
C. Construction other than on thoroughfares and arterials that takes less than eight (8) contiguous hours to complete, does not impede traffic and does not involve a street, pavement, curb, or sidewalk cut without first obtaining the approval of the Director of Service ; or
D. Any other construction or work done in the rights-of-way that the Director of Service determines to be minor maintenance.
(2) A minor maintenance permit allows the minor maintenance permittee to perform all minor maintenance in any part of the rights-of-way as required.
(3) A minor maintenance permit is valid from the date of issuance until December 31 of the year in which the minor maintenance permit was issued, at which time the minor maintenance permit shall expire.
(4) Upon the City's request, a minor maintenance permit must be produced within twelve (12) hours or the first earliest business hour, whichever is later. For purposes of this chapter, business hour shall mean the hours between 8:00 a.m. and 5:00 p.m. during a business day.
(5) A minor maintenance permit by itself shall under no circumstances provide a permittee with the ability to cut the street, pavement, curb, or sidewalk without first obtaining the approval of the Director of Public Works.
(b) Minor Maintenance Permit Applications. Application for a minor maintenance permit shall be made to the Director of the Service Department. In addition to any information required by the Director of Service , all minor maintenance permit applications shall contain, and will only be considered complete upon compliance with the following provisions:
(1) Credible evidence that the applicant (where required) has obtained a certificate of registration or proof that the applicant has written authority to apply for a minor maintenance permit on behalf of a party that has been issued a certificate of registration; and
(2) Submission of a completed minor maintenance permit application in the form required by the Director of Service; and
(3) A statement that the applicant will employ protective measures and devices that, consistent with the Ohio Manual of Uniform Traffic Control Devices, will prevent injury or damage to persons or property and to minimize disruptions to the efficient movement of pedestrian and vehicular traffic.
(c) Issuance of Minor Maintenance Permits; Conditions.
(2) The City may impose reasonable conditions upon the issuance of the minor maintenance permit and the performance of the minor maintenance permittee thereunder in order to protect the public health, safety and welfare, to insure the structural integrity of the rights-of-way, to protect the property and safety of other users of the rights-of-way, and to minimize the disruption and inconvenience to the traveling public.
(d) Minor Maintenance Permit Fees. The Director of Service shall not charge a fee for the issuance of the minor maintenance permit but may revoke the minor maintenance permit as any other permit may be revoked under this chapter.
(Ord. 051-2022. Passed 12-5-22.)
1180.17 ENFORCEMENT OF PERMIT OBLIGATION.
(a) Mandatory Denial of Permit. Except in the case of an emergency, no permit will be granted:
(1) To any person who has not yet made an application; or
(2) To any person who has outstanding debt or taxes owed to the City; or
(3) To any person as to whom there exists grounds for the revocation of a permit; or
(4) If, in the discretion of the Director of Service , the issuance of a permit for the particular date and/or time would cause a conflict or interfere with an exhibition, celebration, festival, or any other event. The Director of Service, in exercising this discretion, shall be guided by the safety and convenience of ordinary travel of the public over the rights-of-way, and by considerations relating to the public health, safety and welfare.
(b) Permissive Denial of Permit. The Director of Service may deny a permit in order to protect the public health, safety and welfare, to prevent interference with the safety and convenience of ordinary travel over the rights-of-way, or when necessary to protect the rights-of-way and its users.
(1) The Director of Service, in his or her discretion, may consider one or more of the following factors:
A. The extent to which rights-of-way space where the permit is sought is available; and/or
B. The competing demands for the particular space in the rights-of-way; and/or
C. The availability of other locations in the rights-of-way or in other rights-of-way for the proposed facilities; and/or
F. The degree of disruption to surrounding communities and businesses that will result from the use of that part of the rights-of-way; and/or
G. The condition and age of the rights-of-way, and whether and when it is scheduled for total or partial re-construction; and/or
H. The balancing of the costs of disruption to the public and damage to the rights-of-way, against the benefits to that part of the public served by the expansion into additional parts of the rights-of-way; and/or
(c) Discretionary Issuance of Permit.
(1) Notwithstanding the provisions of this Chapter, the Director of Service with the approval of the City Administrator may issue a permit in any case where the permit is necessary:
A. To prevent substantial, long term, economic hardship to a customer of the permit applicant, if established by credible evidence satisfactory to the City; or
B. To allow such customer to materially improve its service; or
C. To allow a new economic development project to be granted a permit under this section.
(2) To be granted a permit under this section, the permit applicant must not have had knowledge of the hardship, the plans for improvement of service, or the development project when it was required to submit its list of next year projects.
(d) Work Done Without A Permit in Emergency Situations.
(1) Each provider shall, as soon as is practicable, immediately notify the Director of Service of any event regarding its facilities which it considers to be an emergency. The provider may proceed to take whatever actions are necessary using the guidelines set forth herein and generally accepted practices in order to respond to the emergency. Within five (5) business days, unless otherwise extended by the Director of Service, after the occurrence or discovery of the emergency (whichever is later), the provider shall apply for the necessary permits, pay the fees associated therewith and fulfill the rest of the requirements necessary to bring itself into compliance with Sections 1180.01 through 1180.21 for any and all actions taken in response to the emergency. In the event that the City becomes aware of an emergency regarding a provider's facilities, the City shall use best efforts to contact the provider, or the system representative of each provider affected, or potentially affected, by the emergency. In any event, the City may take whatever action it deems necessary in order to respond to the emergency, the cost of which shall be borne by the provider whose facilities caused the emergency.
(2) Except in the case of an emergency, any provider who constructs in, on, above, within, over, below or through a rights-of-way without a valid permit must subsequently obtain a permit, pay double the normal fee for said permit, pay double all the other fees required by the Maumee Codified Ordinances or this code sections, deposit with the City the fees necessary to correct any damage to the rights-of-way and comply with all of the requirements of Sections 1180.01 through 1180.21 and pay any other fees or penalties set forth herein.
(e) Revocation of Permits.
(1) Permittees hold permits issued pursuant to this Code as a privilege and not as a right. The City reserves its right, as provided herein, to revoke any permit, without refunding any fees, in the event of a substantial breach of the terms and conditions of any law, or any provision or condition of the permit. A substantial breach by permittee shall include, but shall not be limited to, the following:
A. The violation of any provision or condition of the permit; or
B. An evasion or attempt to evade any provision or condition of the permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the City or its citizens; or
C. Any material misrepresentation of fact in the application for a permit; or
D. The failure to maintain the required construction or removal bonds and/or insurance; or
E. The failure to obtain and/or maintain, when required, a certificate of Registration; or
F. The failure to complete the construction in a timely manner; or
G. The failure to correct a condition of an order issued; or
H. Any action or plan by the Permittee, or its contractors or agents which hinders, disrupts, or delays other construction projects planned or in progress by the City of Maumee, its contractors or any other permittee's ongoing or planned project.
(2) If the Director of Service determines that the permittee has committed a substantial breach of a term or condition of any law or any condition of the permit, the Director of Service shall serve a written demand upon the permittee to remedy such violation. The demand shall state that continued violations may be cause for revocation of the permit. Upon a substantial breach, as stated above, the Director of Service may place additional or revised conditions on the permit.
(3) By the close of the next business day following receipt of notification of the breach, permittee shall contact the Director of Service with a plan, acceptable to the Director of Service, for its correction. Permittee's failure to so contact the Director of Service , or the permittee's failure to submit an acceptable plan, or permittee's failure to reasonably implement the approved plan, shall be cause for immediate revocation of the permit.
(4) If a permittee commits a second substantial default as outlined above, permittee's permit will automatically be revoked and the permittee will not be allowed further permits for up to and including one full year, except for emergency repairs.
(5) If a permit is revoked, the permittee shall also reimburse the City for the City's reasonable costs, including restoration costs and the costs of collection and reasonable attorneys' fees incurred in connection with such revocation. (Ord. 051-2022. Passed 12-5-22.)
1180.18 CONSTRUCTION AND REMOVAL BONDS.
(a) Construction Bond. Prior to the commencement of any construction, a construction permittee, excluding the City and the county, shall deposit with the Director of Service an irrevocable, unconditional letter of credit and/or surety bond in an amount determined by the Director of Service to be appropriate based upon fair and reasonable criteria. Unless a construction default, problem or deficiency involves an emergency or endangers the safety of the general public, the Director of Service shall serve written notice to the construction permittee detailing the construction default, problem or deficiency. If the Director of Service determines that correction or repair of the construction default, problem or deficiency has not occurred or has not been substantially initiated within ten (10) calendar days after the date following service and notification and detailing the construction default, problem or deficiency, then the City may attach the letter of credit or surety bond. Upon attachment, written notice shall be served on the construction permittee by the Director of Service.
(b) Removal Bond. Upon issuance of a certificate of registration and continuously thereafter, and until 120 days after a provider's facilities have been removed from the rights-of-way, (unless the Director of Service notifies the provider that a reasonably longer period shall apply), a provider shall deposit with the Director of Service and maintain an irrevocable, unconditional letter of credit or surety bond in an amount equal to or greater than fifty thousand dollars ($50,000.00), the Director of Service shall make all reasonable efforts to allow provider a period of five (5) calendar days after serving notification in writing to correct or repair any default, problem or deficiency prior to the Director of Service attachment of the letter of credit or surety bond regarding the removal of facilities. Upon attachment, written notice shall be provided to the provider by the Director of Service.
(c) Blanket Bond. In lieu of the construction bond required, and the removal bond required provider may deposit with the Director of Service an irrevocable, unconditional letter of credit and/or surety bond in the amount of five million dollars ($5,000,000.00). Unless a construction default, problem or deficiency involves an emergency or endangers the safety of the general public, the Director of Service shall make all reasonable effort to allow permittee a period of five (5) calendar days after sending notification in writing to correct or repair any default, problem or deficiency prior to Director of Service' attachment of the letter of credit or surety bond.
(d) Self Bonding. In lieu of the construction bond required), the removal bond required) and the blanket bond required, those providers maintaining a book value in excess of twenty million dollars ($20,000,000.00) may submit a statement to the Director of Service requesting to self-bond. If approval to self-bond is granted, a provider shall assure the City that such self-bonding shall provide the City with no less protection and security than would have been afforded to the City by a third-party surety providing provider with the types and amounts of bonds detailed in the above-named sections. This statement shall include:
(1) Audited financial statements for the previous year; and
(2) A description of the applicant's self-bonding program; and
(3) Other applicable and pertinent information as reasonably requested by the Director of Service.
(e) Purposes.
(1) The bonds required by this section, and any self-bonding to the extent it has been permitted, shall serve as security for:
B. Any expenditure, damage, or loss incurred by the City occasioned by the permittee or provider's violation of Sections 1180.01 through 1180.21 of this Code or its failure to comply with all rules, regulations, orders, permits and other directives of the City issued pursuant to Sections 1180.01 through 1180.21; and
C. The payment of all compensation due to the City, including permit fees; and
F. The payment to the City of any amounts for which the permittee or provider is liable that are not paid by its insurance or other surety; and
(f) Form. The bond documents required by this section and any replacement bond documents shall contain the following endorsement:
"It is hereby understood and agreed that this bond may not be canceled or not renewed by the surety nor the intention to cancel or not to renew be stated by the surety until ninety (90) days after completion of construction of the facilities and, notwithstanding the foregoing, shall in no case be canceled or not renewed by the surety until at least ninety (90) days' written notice to City of surety's intention to cancel or not renew this bond."
(Ord. 051-2022. Passed 12-5-22.)
1180.19 INDEMNIFICATION AND LIABILITY.
(a) City Does Not Accept Liability. By reason of the acceptance of an application, the grant of a permit or the issuance of a certificate of registration, the City does not assume any liability:
(1) For injuries to persons, damage to property, or loss of service claims; or
(2) For claims or penalties of any sort resulting from the installation, presence, maintenance, or operation of facilities.
(b) Indemnification.
(1) By applying for and being issued a certificate of registration with the City a provider is required, or by accepting a permit a permittee is required to defend, indemnify, and hold harmless the City's agents, elected officials, officers, employees, volunteers and subcontractors from all costs, liabilities, claims, and suits for damages of any kind arising out of the construction, presence, installation, maintenance, repair or operation of its facilities, or out of any activity undertaken in or near a rights-of-way, whether any act or omission complained of is authorized, allowed, or prohibited by a permit. A provider or permittee shall not bring, nor cause
to be brought, any action, suit or other proceeding claiming damages, or seeking any other relief against the City's agents, elected officials, officers, employees, volunteers, and subcontractors for any claim nor for any award arising out of the presence, installation, maintenance or operation of its facilities, or any activity undertaken in or near a rights-of-way, whether the act or omission complained of is authorized, allowed or prohibited by a permit. This section is not, as to third parties, a waiver of any defense or immunity otherwise available to the provider, permittee or to the City; and the provider or permittee, in defending any action on behalf of the City, shall be entitled to assert in any action every defense or immunity that the City could assert in its own behalf. Any and all exercise of the above shall be consistent with, but not limited to, the following:
A. To the fullest extent permitted by law, all providers and permittees shall, at their sole cost and expense, fully indemnify, defend and hold harmless the City, its elected officials, agents, officers, employees, volunteers and subcontractors from and against any and all lawsuits, claims (including without limitation worker's compensation claims against the City or others), causes of actions, actions, liability, and judgments for injury or damages (including, but not limited to, expenses for reasonable legal fees and disbursements assumed by the City in connection therewith); and
B. Persons or property, in any way arising out of or through the acts or omissions of provider or permittee, its subcontractors, agents or employees attributable to the occupation by the provider or permittee of the rights-of-way, to which provider's or permittee's negligence shall in any way contribute, and regardless of whether the City's negligence or the negligence of any other party shall have contributed to such claim, cause of action, judgment, injury or damage; and
C. Arising out of any claim for invasion of the right of privacy, for defamation of person, firm or corporation, or the violation or infringement of any copyright, trademark, trade name, service mark or patent or any other right of any person, firm, and corporation by the provider, but excluding claims arising out of or related to City programming; and
D. Arising out of provider or permittee's failure to comply with the provisions of law applicable to provider or permittee in its business hereunder.
(2) The foregoing indemnification is conditioned upon the City:
A. Giving provider or permittee prompt notice of any claim or the commencement of any action, suit or proceeding for which indemnification is sought; and
B. Affording the provider or permittee the opportunity to participate in any compromise, settlement, or other resolution or disposition of any claim or proceeding subject to indemnification; and
C. Cooperate in the defense of such claim and making available to the provider or permittee all pertinent information under the City's control.
(3) The City shall have the right to employ separate counsel in any such action or proceeding and to participate in the investigation and defense thereof, and the provider or permittee shall pay all reasonable fees and expenses of such separate counsel if employed.
(Ord. 051-2022. Passed 12-5-22.)
1180.20 GENERAL PROVISIONS.
(a) Non-Exclusive Remedy. The remedies provided in Sections 1180.01 through 1180.21 are not exclusive or in lieu of other rights and remedies that the City may have at law or in equity. The City is hereby authorized at any time to seek legal and equitable relief for actual or threatened injury to the public rights-of-way, including damages to the rights-of-way, whether caused by a violation of any of the provisions of Sections 1180.01 through 1180.21 or other provisions of this Code.
(b) Severability. If any section, subsection, sentence, clause, phrase, or portion of Sections 1180.01 through 1180.21 is for any reason held invalid or unconstitutional by any court or administrative agency of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof. If a regulatory body or a court of competent jurisdiction should determine by a final, non-appealable order that any permit, right or any portions of this section are illegal or unenforceable, then any such permit or right granted or deemed to exist hereunder shall be considered as a revocable permit with a mutual right in either party to terminate without cause upon giving sixty (60) days' written notice to the other. The requirements and conditions of such a revocable permit shall be the same requirements and conditions as set forth in the permit, right or registration, respectively, except for conditions relating to the term of the permit and the right of termination. If a permit or right shall be considered a revocable permit as provided herein, the permittee must acknowledge the authority of the City to issue such revocable permit and the power to revoke it.
(c) Reservation of Regulatory and Police Powers. The City, by the granting of a permit or by issuing a certificate of registration pursuant to Sections 1180.01 through 1180.21, does not surrender or to any extent lose, waive, impair, or lessen the lawful powers and rights, which it has now or may be hereafter vested in the City under the Constitution and Laws of the United States, State of Ohio and under the Charter of the City of Maumee to regulate the use of the rights-of-way. The permittee by its acceptance of a permit, or provider by applying for and being issued a certificate of registration, is deemed to acknowledge that all lawful powers and rights, regulatory power, or police power, or otherwise as now are or the same as may be from time to time vested in or reserved to the City, shall be in full force and effect and subject to the exercise thereof by the City at any time. A permittee or provider is deemed to acknowledge that its rights are subject to the regulatory and police powers of the City to adopt and enforce general ordinances necessary to the safety and welfare of the public and is deemed to agree to comply with all applicable general laws and ordinances enacted by the City pursuant to such powers.
(d) Method of Service. Any notice or order of the Director of Service or City Administrator shall be deemed to be properly served if a copy thereof is:
(1) Delivered personally; or
(2) Successfully transmitted via facsimile transmission to the last known fax number of the person to be served; or
(3) Left at the usual place of business of the person to whom it is to be served upon and with someone who is eighteen (18) years of age or older; or
(4) Sent by certified U.S. mail to the last known address; or
(5) If the notice is attempted to be served by certified U.S. mail and then returned showing that the letter was not delivered, or the certified letter is not returned within fourteen (14) days after the date of mailing, then notice may be sent by regular, first-class U.S mail.; or
(6) If the notice is attempted to be served by regular, first class U.S. mail, postage prepaid, and the letter is then returned showing that the letter was not delivered, or is not returned within fourteen (14) days after the date of mailing, then notice shall be posted in a conspicuous place in or about the structure, building, premises or property affected by such notice.
(f) Police Powers. All persons' rights are subject to the police powers of the City to adopt and enforce ordinances necessary to the health, safety, and welfare of the public. All persons shall comply with all applicable laws enacted by the City pursuant to its police powers. In particular, all persons shall comply with City zoning and other land use requirements pertaining to the placement and specifications of facilities.
(h) Foreclosure and Receivership.
(1) Upon the filing of any voluntary or involuntary petition under the Bankruptcy Act by or against any provider and/or permittee, or any action for foreclosure or other judicial sale of the provider and/or permittee facilities located within the rights-of-way, the provider and/or permittee shall so notify the Director of Service within fourteen (14) calendar days thereof and the provider and/or permittee's certificate of registration or permit (as applicable) shall be deemed void and of no further force and effect.
(2) The City shall have the right to revoke, pursuant to the provisions of this Code, any certificate of registration or permit granted pursuant to Sections 1180.01 through 1180.21, 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 provider and/or 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:
A. Within 120 days after election or appointment, such receiver or trustee shall have fully complied with all the provisions of the relevant certificate of registration, any outstanding permit, all provisions of this Code, and remedied all defaults thereunder; and
B. Said receiver or trustee, within said 120 days, shall have executed an agreement, duly approved by a court having jurisdiction over the facilities, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of the relevant certificate of registration, permit and Sections 1180.01 through 1180.21.
(i) Choice of Law and Forum. This Chapter and the terms and conditions of any certificate of registration or permit shall be construed and enforced in accordance with the substantive laws of the City of Maumee, State of Ohio, and United States, in that order. As a condition of the grant of any permit or issuance of any certificate of registration all disputes shall be resolved in a court of competent jurisdiction in Lucas County, Ohio.
(j) Force Majeure. In the event any person's performance of any of the terms, conditions or obligations required by Sections 1180.01 through 1180.21 is prevented by a cause or event not within such person's control, such inability to perform shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof. For the purpose of this section, causes or events not within the control of a provider shall include, without limitation, acts of God, strikes, sabotage, riots or civil disturbances, failure or loss of, explosions, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and fires.
(k) No Warranty. The City makes no representation or warranty regarding its right to authorize the construction of facilities on any particular right-of-way. The burden and responsibility for making such determination shall be upon the person installing facilities in the right-of-way.
(l) Continuing Obligation and Holdover. In the event a provider or permittee continues to operate all or any part of the facilities after the termination, lapse, or revocation of a certificate of registration, such provider or permittee shall continue to comply with all applicable provisions of Sections 1180.01 through 1180.21 and other laws throughout the period of such continued operation, provided that any such continued operation shall in no way be construed as a renewal or other extension of the certificate of registration, nor as a limitation on the remedies, if any, available to the City as a result of such continued operation after the term, including, but not limited to, damages and restitution. Any conflict between the issuance of a certificate of registration or of a permit and any other present or future lawful exercise of the City's regulatory or police powers shall be resolved in favor of the latter.
(n) City Standards. As part of City required standards wherever right-of-way projects are under construction, if deemed advisable and practicable by the Director of Service , the City may install, or require Permittee to install at Permittee's cost all such facilities deemed necessary to accommodate future provider needs or needs of the City of Maumee. Any such installed facilities shall be City property and may be conveyed to any person under such terms and conditions as are deemed advisable by the City Administrator. No Permittee or utility shall charge the City of Maumee co-location fees including those for City of Maumee lights, cameras, or other related equipment. No Permittee shall cross a utility line located in any Maumee right of way.
(Ord. 051-2022. Passed 12-5-22.)
1180.21 SMALL CELL FACILITIES AND WIRELESS SUPPORT STRUCTURES WITHIN THE RIGHT-OF-WAY.
1180.211 PURPOSE AND INTENT.
(a) The purpose of this section is to establish general procedures and standards, consistent with all applicable federal, state, and local laws, for the siting, construction, installation, collocation, modification, operation, and removal of small cell facilities and wireless support structures in the right-of-way.
(b) The intent of this section is to:
(1) Establish basic criteria for applications to locate small cell facilities and wireless support structures in the right-of-way and authorize the City Administrator or his or her designee to develop, publish, and from time to time amend applications and other associated materials to provide clear guidance to applicants;
(2) Ensure that small cell facilities and wireless support structures are carefully designed, constructed, modified, maintained, and removed when no longer in use in conformance with all applicable health and safety regulations;
(3) Preserve the character of the City of Maumee by minimizing the potentially adverse visual impact of small cell facilities and wireless support structures through careful design, siting, landscaping, and camouflaging techniques to blend these facilities into their environment to the maximum extent practicable;
(4) Enhance the ability of wireless service providers to deploy small cell facilities and wireless support structures in the City of Maumee quickly, effectively, and efficiently so that residents, businesses, and visitors benefit from ubiquitous and robust wireless service availability;
(5) Establish an application process and structure for payment of fees and charges to be uniformly applied to all applicants, operators and owners of small cell facilities and wireless support structures for such facilities;
(6) Comply with, and not conflict with or preempt, all applicable state and federal laws, including without limitation Section 101(a) and Section 704 of the Telecommunications Act, Pub. L. 104104, 101 Stats. 56, 70 (Feb. 8, 1996) (codified as 47 U.S.C. §§ 253(a), 332(c)(7)), as may be amended or superseded, and Section 6409(a) of the Middle Class Tax Relief and Job Creation Act, Pub. L. 112-96, 126 Stat. 156 (Feb. 22, 2012) (codified as 47 U.S.C. § 1455(a)), as may be amended or superseded, and all FCC rules and regulations to interpret and implement applicable federal statutes.
(Ord. 051-2022. Passed 12-5-22.)
1180.212 APPLICABILITY,
(a) Subject to the Ohio Revised Code and approval of an application under this section, an operator may collocate a small cell facility and construct, maintain, modify, operate, or replace wireless support structures in, along, across, upon, and under the City of Maumee right-of-way.
(1) An operator shall comply with generally applicable standards that are consistent with this section and any rules, regulations, and design guidelines adopted by the City of Maumee for the collocation of a small cell facility and construction, maintenance, modification, operation, or replacement of wireless support structures in, along, across, upon, and under the City of Maumee right-of-way, unless otherwise prohibited by state or federal law.
(2) All wireless support structures and small cell facilities shall be constructed and maintained so as not to impede or impair public safety or the legal use of the right-of-way by the City of Maumee, the traveling public, or other public utilities.
(b) The permitting procedures and authorizations set forth herein shall apply only to small cell facilities and wireless support structures in the right-of-way, and do not authorize the construction and operation of a wireline backhaul facility.
(c) Relationship to Other Sections. This section shall supersede all conflicting requirements of other titles and sections of this Code regarding the locating and permitting of small cell facilities and wireless support structures in the right-of-way.
(d) Nothing in this section precludes the City of Maumee from applying its generally applicable health, safety, and welfare regulations when granting consent for a small cell facility or wireless support structure in the City of Maumee right-of-way.
(Ord. 051-2022. Passed 12-5-22.)
1180.213 APPLICATION REQUIRED.
(a) General Requirements. The following requirements shall apply to all small cell facilities and wireless support structures proposed within the right-of-way.
(1) No person shall occupy or use the right-of-way except in accordance with law.
(2) In occupying or using the right-of-way, no person shall unreasonably compromise the public health, safety, and welfare.
(3) No person shall occupy or use the right-of-way without first obtaining, under this section, or Section 1332.24 or 4939.031 of the Ohio Revised Code, any requisite consent of the City of Maumee. Before placing small cell facilities or wireless support structures in the right-of-way, an operator must apply for and receive a general right-of-way certificate of registration under Section 1180.03. If the operator's sole activities in the right-of-way will consist solely of collocating small cell facilities, constructing, modifying, or replacing new wireless support structures and associated small cell facilities, removing such facilities, or eligible facilities requests, then the operator shall not be required to pay the annual fee for general right-of-way certificate of registration provided in Section 1180.05. This provision shall not be construed to waive application fees, or any other construction or work permit necessary for work in the City of Maumee.
(b) Pre-Application Conference.
(1) Purpose. Applicants are strongly encouraged to contact the City of Maumee and request a pre-application conference. This meeting will provide an opportunity for early coordination regarding proposed small cell facilities and wireless support structure locations and design, and the application submittal and review process, in order to avoid any potential delays in the processing of an application and deployment of small cell facilities and wireless support structures in the City of Maumee.
(2) Appointment Required. An appointment is required for all pre-application conferences. Applicants must contact the designated City of Maumee staff member as noted on the application form, who will provide applicants an appointment with all applicable City of Maumee representatives in a timely manner.
(c) Application Required. In accordance with federal and state law and the City of Maumee code, an operator may apply to the City of Maumee to collocate a small cell facility on an existing wireless support structure and to construct, maintain, modify, operate, or replace wireless support structures in, along, across, upon, and under the City of Maumee rights-of-way. Anyone seeking to collocate a small cell facility on an existing wireless support structure and/ or to construct, maintain, modify, operate, or replace wireless support structures in, along, across, upon, and under the City of Maumee rights-of-way shall first duly file a written application with the City of Maumee, in accordance with the requirements in this section and additional requirements set forth in the Design Guidelines as modified from time to time by the City Administrator.
(d) Required Application Materials. Unless otherwise required by state or federal law, all applicants shall submit to the City of Maumee materials and information associated with each application as outlined in the Design Guidelines in order for the application to be considered complete. (Ord. 051-2022. Passed 12-5-22.)
1180.214 APPLICATION REVIEW TIMEFRAMES AND PROCESS.
(a) Permit Application Review Timeframes.
(1) Collocation of Small Cell Facilities on Existing Wireless Support Structures. The City of Maumee shall grant or deny its consent for requests to collocate, or to replace or modify a small cell facility on, or associated with, an existing wireless support structure not later than ninety days after the date of filing by an entity of a completed application.
(2) New Wireless Support Structures and Associated Small Cell Facilities. The City of Maumee shall grant or deny its consent for requests to construct, modify, or replace a wireless support structure associated with a small cell facility within the right-of-way not later than one hundred twenty days after the date of filing by an entity of a completed application.
(3) Wireless Support Structure and/or Small Cell Facilities Removal. The City of Maumee shall grant or deny its consent for requests to remove wireless support structures associated with small cell facilities from the right-of-way typical to the review timeframes for the General Right-of-Way Permit required for this activity.
(4) Eligible Facilities Request. The City of Maumee shall approve Eligible Facilities Requests in accordance with Ohio Revised Code Section 4939, 47 C.F.R. §1.40001, and not later than sixty days after the date of filing by an entity of a submitted application.
(b) Failure to Grant or Deny Within Prescribed Timeframes. If the City of Maumee fails to approve or deny a request for consent under this section or a request for a relevant work permit within the timeframes required, provided the time period is not tolled or extended with the written consent of the applicant and the City Administrator, the request shall be deemed granted upon the requesting entity providing notice to the City of Maumee that the time period for acting on the request has lapsed.
(c) Application Denials.
(1) The City of Maumee shall not unreasonably withhold or deny consent for small cell facilities and wireless support structures within the right-of-way.
(2) If a request for consent is denied, the City of Maumee shall provide in writing its reasons for denying the request, supported by substantial, competent evidence, and such information as the applicant may reasonably request to obtain consent. The denial of consent shall not unreasonably discriminate against the entity requesting the consent.
(3) Except in the case of a public utility subject to the jurisdiction and recognized on the rolls of the public utilities commission or of a cable operator possessing a valid franchise awarded pursuant to the "Cable Communications Policy Act of 1984," 98 Stat. 2779, 47 U.S.C.A. 541, the City of Maumee, for good cause shown, may withhold, deny, or delay its consent to any person based upon the person's failure to possess the financial, technical, and managerial resources necessary to protect the public health, safety, and welfare.
(d) Tolling of Required Timeframes.
(1) The time periods required in this section may be tolled only:
A. By mutual agreement between the entity requesting consent and the City of Maumee;
B. In cases where the City of Maumee determines that the application is incomplete; or
C. If the number of requests for consent for small cell facilities or wireless support structures received is likely to result in difficulty processing applications within the time limits set forth this section due to the lack of resources of the City of Maumee, then the City of Maumee may toll the time limits as follows:
1. The time period may be tolled for up to twenty-one (21) days for each group of fifteen (15) small cell facility or wireless support structure requests received by the City of Maumee based on date of receipt by the City of Maumee.
2. In no instance shall the City of Maumee toll the time period for any small cell facility or wireless support structure request by more than ninety (90) consecutive days. Upon request, the City of Maumee shall provide an operator written notice of the time limit for a small cell facility or wireless support structure request.
(2) To toll the time period for incompleteness, the City of Maumee shall provide written notice to the person requesting consent not later than thirty (30) days after receiving the request, clearly and specifically delineating all missing documents or information. The missing documents or information shall be reasonably related to determining whether the request meets the requirements of applicable federal and state law. Any notice of incompleteness requiring other information or documentation, including information of the type described in Section 4939.0313 of the Ohio Revised Code or documentation intended to illustrate the need for the request or to justify the business decision for the request, in accordance with state and federal law, does not toll the time period for incompleteness.
(3) The time period for granting or denying consent resumes when the entity makes a supplemental submission in response to the City of Maumee's notice of incompleteness.
(4) If a supplemental submission is inadequate, the City of Maumee shall notify the entity not later than ten (10) days after receiving the supplemental submission that the supplemental submission did not provide the information identified in the original notice that delineated missing documents or information. The time period may be tolled in the case of second or subsequent notices under the procedures identified in subsections (1) to (3) of this section. Second or subsequent notices of incompleteness may not specify missing documents or information that was not delineated in the original notice of incompleteness.
(e) Consolidated Application for Multiple Small Cell Facilities And/or Wireless Support Structures.
(1) Applicants seeking to construct, modify, collocate, or replace more than one small cell facility or more than one wireless support structure may file, at the applicant's discretion, a consolidated application for up to thirty (30) small cell facility requests or up to thirty (30) wireless support structure requests in a single application and receive a single permit for the construction, modification, collocation, or replacement of the small cell facilities or wireless support structures subject to the following:
A. This single application may be filed for multiple small cell facilities or multiple wireless support structures only if they are of substantially the same type.
B. The City of Maumee may separately address small cell facility collocations or wireless support structures for which incomplete information has been received or which are denied.
(2) In the case of a consolidated application, the fees provided for in section 4939.0316 of the Ohio Revised Code and in separate fee ordinances may be cumulative. However, the City of Maumee, at its discretion may opt to reduce such fees in order to encourage consolidated application submittals.
(3) In the case of a consolidated application, each small cell facility or wireless support structure proposed to be constructed, modified, collocated on, or replaced shall constitute a separate request for consent for purposes of tolling the response deadline as authorized under Section 4939.036 of the Ohio Revised Code and this ordinance. A request by a single operator for a new or replacement wireless support structure and associated small cell facility constitutes one request.
(f) Timeframe for Completion of Permit.
(1) Collocations of small cell facilities on existing wireless support structures and the construction of new wireless support structures and/or associated small cell facilities for which permits have been granted shall be completed by the operator or its agent within one hundred eighty days after issuance of the permit, unless:
A. The City of Maumee and the operator agree to extend this period; or
B. A delay is caused by make-ready work for a City of Maumee-owned wireless support structure or decorative pole or by the lack of commercial power or backhaul availability at the site, provided that:
1. The operator has made a timely request within sixty (60) days after the issuance of the permit for commercial power or backhaul services; and
2. The additional time to complete installation does not exceed three hundred sixty days (360) after issuance of the permit.
(2) If subsections (1)(a) and (b) of this section cannot be met, the permit shall be void unless the City of Maumee grants an extension in writing to the operator.
(g) Small Cell Facility and Wireless Support Structure Activities Not Requiring Consent.
(1) City of Maumee consent shall not be required for either of the following activities conducted in the right-of- way:
A. Routine maintenance of wireless facilities;
B. The replacement of wireless facilities with wireless facilities that are consistent with the City of Maumee's current design requirements and guidelines and that are either:
1. Substantially similar to the existing wireless facilities; or
2. The same size or smaller than the existing wireless facilities.
(2) The City of Maumee may require a Right-of-Way Construction Permit for any activity described in division (1) of this section and for any activity for which consent is authorized herein and in accordance with state and federal law if such work involves blocking any access to the right of way or roadways, including the use of traffic control measures required by the City of Maumee or other relevant laws.
(Ord. 051-2022. Passed 12-5-22.)
1180.215 DESIGN GUIDELINES.
(a) The City Administrator shall promulgate detailed Design Guidelines with objective, technically feasible criteria applied in a non-discriminatory manner that reasonably match the aesthetics and character of the immediate area regarding all of the following, which the City of Maumee shall consider in reviewing an application:
(1) The location of any ground-mounted small cell facilities;
(2) The location of a small cell facility on a wireless support structure;
(3) The appearance and concealment of small cell facilities, including those relating to materials used for arranging, screening, and landscaping;
(4) The design and appearance of a wireless support structure.
(b) The Design Guidelines may provide examples of small cell facilities preferences including visual depictions.
(c) The provisions in this section shall not limit or prohibit the City Administrator's discretion to promulgate and make publicly available other information, materials, or requirements in addition to, and separate from, Design Guidelines so long as the information, materials, or requirements do not conflict with state or federal law.
(d) The City Administrator shall have authority to update or supplement the Design Guidelines to address relevant changes in law, technology, or administrative processes.
(e) Where the City of Maumee has designated an underground corridor, placement of any support structure shall be in harmony and of the same general material and appearance as other structures. Overhead service of any type is prohibited in an underground corridor.
(f) The City Administrator shall provide thirty (30) calendar-day notice to every utility prior to implementing Design Guidelines and prior to implementing any changes to established Design Guidelines.
(Ord. 051-2022. Passed 12-5-22.)
1180.216 STANDARD CONDITIONS OF PERMIT APPROVAL.
(a) Standard Conditions of Approval. Permission to site small cell facilities and wireless support structures in the right-of-way shall be conditioned on compliance with the standard conditions of approval provided in this chapter. The City Administrator may add or modify conditions of approval as necessary or appropriate to protect and promote the public health, safety, and welfare.
(b) Small Cell Facility Permit Duration. The City of Maumee's approval term of an attachment to a wireless support structure shall be for a period of not less than five (5) years, with presumption of renewal for successive two (2) year terms, subject to terms providing for early termination or nonrenewal for cause or by mutual agreement and unless otherwise agreed to by both the operator and the City of Maumee, except for generally applied permitting to safeguard the public health, safety, and welfare. An operator may remove its small cell facilities at any time subject to applicable permit requirements and may stop paying annual charges or fees.
(c) Compliance with All Applicable Laws.
(1) Permittee shall at all times maintain compliance with all applicable federal, state and local laws, regulations, ordinances, or other rules.
(2) If state or federal standards and regulations are amended, the owners of the small cell facilities and/or wireless support structures governed by this section shall bring any facilities and/or structures into compliance with the revised standards and regulations within six (6) months of the effective date of the standards and regulations, unless a different compliance schedule is mandated by the regulating agency. Failure to bring small cell facilities and/or wireless support structures into compliance with any revised standards and regulations shall constitute grounds for removal at the owner's expense.
(d) Inspections; Emergencies. The City of Maumee or its designee may inspect small cell facilities and wireless support structures in the right-of-way upon reasonable notice to the permittee. The permittee shall cooperate with all inspections. The City of Maumee reserves the right to support, repair, disable, or remove any elements of the facility in emergencies or when the facility threatens imminent harm to persons or property.
(e) Relocation or Adjustment as Requested by City of Maumee. If requested by the City of Maumee, in order to accomplish construction and maintenance activities directly related to improvements for the health, safety, and welfare of the public, an operator shall relocate or adjust its facilities within the right-of-way at no cost to the City of Maumee, as long as such request similarly binds all users in or on such public way. Such relocation or adjustment shall be completed in accordance with law.
(f) Contact Information for Responsible Parties. Permittee shall at all times maintain accurate contact information for all parties responsible for the facility, which shall include a phone number, street mailing address, and email address for at least one (1) natural person. All such contact information for responsible parties shall be provided to the City of Maumee.
(g) Indemnification. Any operator who owns or operates small cell facilities or wireless support structures in the right-of-way shall indemnify, protect, defend, and hold the City of Maumee and its elected officials, officers, employees, agents, and volunteers harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees to include reasonable attorney fees and costs of defense, proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including personal or bodily injury or death, property damage or other harm for which recovery of damages is sought, to the extent that it is caused by the negligence of the operator who owns or operates small cell facilities and wireless service in the right-of-way, any agent, officer, representative, employee, affiliate, or subcontractor of the operator, or their respective officers, agents, employees, or representatives while installing, repairing, or maintaining facilities in the right-of-way.
(h) Interference with Public Safety Radio Services. In occupying or using the right-of-way, no person shall unreasonably compromise the public health, safety, and welfare. Permittees shall comply with the applicable provisions of 47 CFR §§ 22.11800-11803 and 47 CFR §§ 90.672-675 respectively, which define unacceptable interference, state the obligations of licensees to abate unacceptable interference, provide interference resolution procedures, and set forth a discretionary information exchange between public safety licensees and other licensees.
(i) Adverse Physical Impacts on Adjacent Properties. Permittee shall undertake all reasonable efforts to avoid undue adverse physical impacts to adjacent properties and/or uses that may arise from the construction, operation, maintenance, modification, or removal of the small cell facility and/or wireless support structure.
(j) Good Condition Required. Small cell facilities and wireless support structures shall at all times be kept and maintained in good condition, order, and repair by qualified maintenance and construction personnel, so that the same shall not menace or endanger the health, safety or welfare of any person or property. Examples of poor condition include, but are not limited to: peeling, flaking, or blistered paint; rust or other visible deterioration of materials; or failure to maintain required landscape screening. All small cell facilities and wireless support structures shall be subject to generally applicable property maintenance requirements and to visual inspection by code enforcement officers. Notices of violation shall be served as provided in the Property Maintenance Code. The notice shall provide that the operator has twenty (20) days from date of service of the notice to appeal the notice or remedy it. If that time expires without appeal or remedy to the satisfaction of the City of Maumee, the City of Maumee may remedy the violation and charge the costs of said remedy to the operator.
(k) Graffiti Abatement. Permittee shall remove any graffiti on the small cell facility at permittee's sole expense.
(l) RF Exposure Compliance. All facilities must comply with all standards and regulations of the FCC and any other state or federal government agency with the authority to regulate RF exposure standards.
(m) Relocation for Public Improvement Projects. Permittee shall remove and relocate the permitted small cell facility and/or wireless support structure at permittee's sole expense to accommodate construction of a public improvement project by the City of Maumee.
(n) Removal of Small Cell Facilities If Use Discontinued or Abandoned.
(1) In the event that the use of a small cell facility and/or wireless support structure is discontinued, the owner or operator of the small cell facility and/ or wireless support structure shall submit a request for consent to remove the wireless support structure or small cell facility, to the City of Maumee of its intent to discontinue use and the date when the use shall be discontinued. If the small cell facility and/or wireless support structure is not removed within 365 days of discontinued use, the small cell facility and/ or wireless support structure shall be considered abandoned, and the City of Maumee may remove it at the owner's expense.
(2) Small cell facilities and wireless support structures determined by the City of Maumee to be abandoned without notice from the owner may be removed by the City of Maumee at the owner's expense to ensure the public health, safety, and welfare.
(3) The City of Maumee reserves the right to inspect and to request information from the operator, which the operator shall provide following such request, as to the continued use of the operator's small cell facility(ies) or wireless support structure(s) within the right-of-way.
(o) Small cell structures are required to otherwise comply with Section 1180.14 of this chapter. (Ord. 051-2022. Passed 12-5-22.)
1180.217 SAFETY REQUIREMENTS.
(a) Prevention of Failures and Accidents. Any person who owns a small cell facility and/or wireless support structure sited in the right-of-way shall at all times employ ordinary and reasonable care and install and maintain in use industry standard technology for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public.
(b) Compliance with Fire Safety and FCC Regulations. Small cell facilities, wires, cables, fixtures, and other equipment shall be installed and maintained in substantial compliance with the requirements of the National Electric Code, all FCC, state, and local regulations, and in such manner that will not interfere with the use of other property.
(c) Surety Bond or Equivalent Financial Tool for Cost of Removal. All owners must procure and provide to the City of Maumee a bond, or must provide proof of an equivalent financial mechanism, to ensure compliance with this section. The bond or equivalent financial method must specifically cover the cost of removal of unused or abandoned small cell facilities and/ or wireless support structures or damage to City of Maumee property caused by an operator or its agent of each small cell facility and/ or wireless support structure in case the City of Maumee has to remove or pay for its removal. Acceptable alternatives to a bond include self-insurance, funds set-aside, and a letter of credit.
(Ord. 051-2022. Passed 12-5-22.)
1180.218 RECOVERY OF COSTS.
(a) Application Processing Fee. For processing an application for consent, the City of Maumee may charge a fee for each small cell facility and wireless support structure requested as prescribed under Section 4939.0316 of the Ohio Revised Code and as set in a separate municipal fee ordinance, which shall be made available by the City of Maumee. The City of Maumee may adjust this fee ten percent (10%) every five (5) years, rounded to the nearest five ($5.00) dollars.
(b) Annual Collocation Fee. For reimbursement for operator's attachment of small cell facilities to wireless support structures owned or operated by the City of Maumee and located in the right-of-way, the City of Maumee may charge an annual fee as prescribed in Section 4939.022 of the Ohio Revised Code and as set in a separate municipal fee ordinance, which shall be made available by the City of Maumee. The City of Maumee may adjust this fee ten percent (10%) every five (5) years, rounded to the nearest five dollars ($5.00).
(c) Construction Permits shall be required in accordance with Section 1180.13 of this chapter and as set in a separate municipal fee ordinance that shall be updated annually.
(d) Tax Liabilities and Assessments Not Applicable. Placement of small cell facilities in the right-of-way or attachment of small cell facilities to a wireless support structure and any fees associated therewith shall not subject the City of Maumee to any state or local tax liabilities or assessments at this time, unless subsequently modified by Maumee Ordinances, state law or Federal law. (Ord. 051-2022. Passed 12-5-22.)
1180.22 AUTHORITY TO ESTABLISH DESIGN GUIDELINES, FEES, CHARGES, REGULATIONS AND/OR PROCEDURES FOR WIRELESS FACILITIES AND SUPPORT STRUCTURES LOCATED IN THE CITY'S PUBLIC RIGHTS-OF-WAY.
In accordance with Substitute Ohio House Bill 478 as codified in Ohio R.C. Chapter 4939, the City Administrator, or their designee, shall have the authority to establish and revise as needed, design guidelines, fees, charges, and other regulations and/or procedures for wireless facilities, small cell facilities, and support structures located in the City's public rights-of-way.
(Ord. 051-2022. Passed 12-5-22.)
CODIFIED ORDINANCES OF MAUMEE