ORDINANCE
NO. 2002-22
As
Amended by Ordinance 2002-53
AN
ORDINANCE OF THE VILLAGE OF NEW RICHMOND,
OHIO ESTABLISHING PROCEDURES AND REQUIREMENTS
RELATING TO CONSTRUCTION OF FACILITIES
IN, ALONG, ACROSS, UNDER AND OVER PUBLIC
RIGHTS-OF-WAY
WHEREAS,
the Village has previously regulated the
use of Public Rights-of-Way through a
variety of ordinances and practices; and
WHEREAS,
changes in the various industries involving
advancements in and convergence of technologies
and the emergence of competition have
increased and will continue to increase
the number of requests to install utility
facilities in, along, across, under, and
over Public Rights-of-Way within the Village
of New Richmond; and
WHEREAS,
this increasing number of requests means
increased disruption of the primary uses
of such Public Rights-of-Way, increased
damage to such Public Rights-of-Way, and
decreased available space for future installations,
among other things; and
WHEREAS,
it is determined by the Council Members
of the Village of New Richmond it is in
the best interests of the Village and
its residents and businesses to minimize
disruption of the primary uses of Public
Rights-of-Way, and to minimize damage
to Public Rights-of-Way; and
WHEREAS,
it is further determined by the Council
Members of the Village of New Richmond
it is in the best interests of the Village
and its residents and businesses to establish
a more uniform and efficient approach
to handling requests for access to and
use of Public Rights-of-Way.
NOW,
THEREFORE, BE IT ORDAINED BY THE COUNCIL
MEMBERS OF THE VILLAGE OF NEW RICHMOND,
OHIO, AS FOLLOWS;
SECTION 1: Chapter REGULATION OF RIGHTS-OF-WAY
The
municipal code of the Village of New Richmond
is hereby amended by the addition of a
new Chapter, which shall be known as the
Rights-of-Way Management Ordinance and
read as follows:
Table
of Contents
Sec. 1. Applicability
Sec.
2. Definitions
Sec.
3. Permitting Provisions
Sec.
4. Facilities Work
Sec.
5. Performance Guaranties and Remedies
Sec.
6. Miscellaneous Provisions
Sec.
7. Annexation
Sec.
8. Relocation of Facilities
Sec.
9. Standards Applicable to Village
Sec.
10. Savings Clause
Sec.
1. Applicability:
To
the extent permitted by law, this Chapter
shall apply to all Persons desiring to
construct, operate, or maintain Facilities
in, along, across, under or over Public
Rights-of-Way within the Village.
Sec.
2. Definitions:
(a)
Definitions and Usage - General.
For
the purposes of this Chapter, the following
terms, phrases, words, and abbreviations
shall have the meanings given herein,
unless otherwise expressly stated. When
not inconsistent with the context, words
used in the present tense include the
future tense and vice versa, words in
the plural number include the singular
number, and vice versa, and the masculine
gender includes the feminine gender and
vice versa. The words "shall"
and "will" are mandatory, and
"may" is permissive. Unless
otherwise expressly stated or clearly
contrary to the context, terms, phrases,
words, and abbreviations not defined herein
shall be given the meaning set forth in
the Village Code, and, if not defined
therein, their common and ordinary meaning.
For further convenience, the first letter
of terms, phrases, words, and abbreviations
defined in this Chapter have been capitalized,
but an inadvertent failure to capitalize
such letter shall not affect its meaning,
nor shall the inadvertent capitalization
of the first letter of a term, phrase,
word or abbreviation not defined herein
affect the meaning thereof.
(b)
"Applicant" means the Specific
Person applying for and receiving a permit
under this chapter.
(c)
"Application" means that form
designed by the Village Engineer, which
an Applicant must use to obtain a Permit
to conduct Facilities Work across, over
or under the Village's Right-of-Way.
(d)
"Village" shall mean the Village
of New Richmond, Ohio.
(e)
"Village Administrator" shall
mean the Village Administrator or his/her
designee.
(f)
"Village Engineer" shall mean
the Village Engineer or his designee.
(g)
"Excavation" shall mean any
act by which earth, asphalt, concrete,
sand, gravel, rock or any other material
in or on the ground is cut into, dug,
uncovered, removed, or otherwise displaced,
by means of any tools, equipment or explosives,
except that, any minimal displacement
or movement of ground caused by pedestrian
or vehicular traffic or any other activity
which does not disturb or displace surface
conditions of the earth, asphalt, concrete,
sand, gravel, rock or any other material
in or on the ground shall not be deemed
excavation.
(h)
"Facilities" shall mean any
conduit, duct, line, pipe, wire, hose,
cable, culvert, tube, pole, receiver,
transmitter, satellite dish, micro call,
Pico cell, repeater, amplifier, or other
device, material, apparatus, or medium,
useable (whether actually used for such
purpose or not) for the transmission or
distribution of any service or commodity
installed below or above ground within
the Public Rights-of-Way of the Village,
whether used privately or made available
to the public.
(i)
"Facilities Work" shall mean
the installation of new Facilities, or
any change, replacement, relocation, removal,
alteration or repair of existing Facilities
that requires excavation within the Public
Rights-of-Way, except for the occasional
replacement of utility poles and related
equipment at the existing general location
that does not involve either a street
or sidewalk cut.
(j)
"Permit" means a Permit granted
by the Village Engineer(1) to do Facilities
Work within the Public Rights-of-Way.
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(k)
"Person" shall mean an individual,
partnership, association, joint stock
company, trust, organization, limited
liability company, corporation, or other
entity, or any lawful successor thereto
or transferee thereof, but such term does
not include the Village.
(l)
"Public Rights-of-Way" shall
mean the surface, the air space above
the surface, and the area below the surface
of any public street, highway, lane, path,
alley, sidewalk, boulevard, drive, bridge,
tunnel, parkway, or other similar property
in which the Village now or hereafter
holds any property interest, which was
dedicated as rights-of-way. No reference
herein, or in any Permit, to "Public
Rights-of-Way" shall be deemed to
be a representation or guarantee by the
Village that its interest or other right
to control the use of such property is
sufficient to permit its use for such
purposes. "Public Rights-of-Way"
does not include the airwaves above the
rights-of-way with regard to cellular
or other non-wire telecommunications or
broadcast services, or easements obtained
by utilities or private easements in platted
subdivisions or tracts.
Sec.
3. Permitting Provisions:
(a)
Permit Requirements.
Any
Person desiring to conduct Facilities
Work within Public Rights-of-Way must
first apply for and obtain a Permit, in
addition to any other zoning permit, floodplain
permit, license, easement, or authorization
required by law, unless such Facilities
Work must be performed on an emergency
basis, then the Person conducting the
work shall as soon as practicable notify
the Village of the location of the work
and apply for the required Permit by the
third business day following the commencement
of the Facilities Work.
(1)
All Applications for Permits shall be
submitted to the Village Engineer (1).
The Village Engineer (1) shall design
and make available standard forms for
such Applications, requiring such information
as the Village Engineer determines to
be necessary, consistent with the provisions
of this Chapter, to accomplish the purposes
of this Chapter.
(2)
Each such Application shall be accompanied
by payment of fees as designated in this
chapter.
(3)
The Village Engineer shall review each
Application for a permit and, upon determining
that the Applicant has authority to Perform
the desired Facilities Work and that the
Applicant has submitted all necessary
information and has paid the appropriate
Fee, shall issue the Permit, except as
provided in subsection (4). In order to
avoid excessive processing and accounting
costs to either the Village or the Applicant,
the Village Engineer shall have authority
to establish procedures for bulk processing
of Applications and periodic payment of
fees.
(4)
It is the intention of the Village that
disruption of the Public Rights-of-Way
should be minimized. Upon receipt of an
Application for a Permit, the Village
Engineer shall do the following:
(a)
Evaluate the degree of excavation necessary
to perform the Facilities Work in the
Right-of-Way and determine whether the
excavation will be more than minor in
nature. If the Applicant can show to the
Village Engineer's reasonable satisfaction
that the Facilities Work involves any
of the following: (a) no significant disruption
or damage to the Public Rights-of-Way,
or (b) time sensitive maintenance; then
the Village Engineer shall grant the Permit
without delay provided that if the permit
is not issued in ten business days, the
aggrieved party may appeal as provided
in subsection 8; and
(b)
For circumstances where the Village Engineer
determines that there will be significant
excavation of the Public Rights-of-Way
and no exemption under (4)(a) or any other
provision of this section applies, the
Village Engineer may, consistent with
the time requirements set forth in Section
(3) and in the Permit, direct Permit holders
performing Facilities Work in the same
area to consult on how they may schedule
and coordinate their work to accomplish
the goal of this section.
(5)
Each Permit shall include projected commencement
and termination dates or, if such dates
are unknown at the time the Permit is
issued, a provision requiring the Permit
holder to provide the Village Engineer
with reasonable advance notice of such
dates once they are determined; length
of Public Rights-of-Way; number of road
crossings; information regarding scheduling
and coordination of Facilities Work if
applicable; and location of Facilities.
(6)
The Village Engineer may include in Permits
such conditions and requirements as are
reasonably necessary to protect structures
and Facilities in the Public Rights-of-Way
from damage and for the proper restoration
of such Public Rights-of-Way, structures
and Facilities, and for the protection
of the public and the continuity of pedestrian
and vehicular traffic.
(7)
The Village Engineer(1) may deny a permit
application for the following reasons
if deemed in the public's interest:
(a)
undisputed past due fees from prior permits,
(b) failure to return the right-of-way
to its previous condition under previous
permits,
(c) undue disruption to existing utilities,
transportation or Village use,
(d) area is environmentally sensitive
as defined by state or federal statute,
(e) failure to provide required information,
and
(f) the applicant is in violation of the
provisions of this chapter.
Notwithstanding
the provisions of Subsections (7)(c) and
(7)(d) above, the Village Engineer will
cooperate with the Applicant to identify
alternative routes, which most nearly
match the routes requested by Applicant
for the placement of facilities.
(8)
Applicant may appeal any final decision
of the Village Engineer (1) to: (a) the
Village Administrator (1), which appeal
shall be acted upon by the Village Administrator
(1) within five (5) business days; and
(b) If denied by the Village Administrator
the applicant may then appeal to the governing
body of the Village, which shall consider
the appeal within sixty (60) days or at
its next regular meeting, whichever occurs
first.
(9)
Applicant must pay the following fees:
Any
fees collected pursuant to this section
will be used only to reimburse the Village
for its actual incurred cost of managing
the rights-of-way and will not be used
to generate revenue to the Village above
such costs. The Village may not require
or accept in-kind services in lieu of
any fee.
(a)
Permit Fee: A fee charged to recover the
Village's actual costs for an applicant's
facilities work in the right-of-way including
the costs of processing permits, inspections
and administration of this ordinance,
excluding legal fees relating to the interpretation
or enforcement of this ordinance including
all such appeals. The permit fee is indicated
on the VillageÕs permit fee schedule. An Applicant shall deposit with the Village
funds sufficient to reimburse the Village
for all reasonable costs of consultant
and expert evaluation and consultation
to the Village in connection with the
review of any application. The initial
deposit shall be $500.00. The Village
will maintain a separate escrow account
for all such funds. The VillageÕs consultants/experts
shall invoice the Village for its services
in reviewing the application, including
the construction and modification of the
site, once permitted. If at any time during
the process this escrow account has a
balance less than $100.00, the Applicant
shall immediately, upon notification by
the Village, replenish said escrow account
so that it has a balance of at least $500.00.
Such additional escrow funds shall be
deposited with the Village before any
further action or consideration is taken
on the Application. In the event that
the amount held in escrow by the Village
is more than the amount of the actual
invoicing at the conclusion of the project,
the remaining balance shall be promptly
refunded to the Applicant.
(b) Applicant Subject to Other Laws, Police
Power.
(1)
An Applicant shall at all times be subject
to all lawful exercise of the police powers
of the Village, including but not limited
to all powers regarding zoning, supervision
of construction, and control of Public
Rights-of-Way.
(2)
No action or omission of the Village shall
operate as a future waiver of any rights
of the Village under this Chapter.
(3)
The Village shall have the maximum plenary
authority to regulate Applications, Permits
and Facilities Work as may now or hereafter
be lawfully permissible. Except where
rights are expressly granted or waived
by a Permit, they are reserved, whether
or not expressly enumerated. This Chapter
may be amended from time to time and in
no event shall this Chapter be considered
a contract between the Village and an
Applicant such that the Village would
be prohibited from amending any provision
hereof.
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Sec. 4. Facilities Work:
(a)
Oversight of Facilities Work.
(1)
An Applicant shall construct, operate
and maintain Facilities subject to the
supervision of all of the authorities
of the Village who have jurisdiction in
such matters, and in strict Compliance
with this ordinance, all applicable zoning
and construction permitting ordinances,
departmental rules and regulations.
(2)
Facilities Work shall be subject to periodic
inspection by the Village.
(3)
The Village Engineer shall have full access
to all portions of Facilities Work and
may issue stop work orders and corrective
orders to prevent unauthorized work. Such
corrective or stop work orders shall state
that work not authorized by the Permit
is being carried out, summarize the unauthorized
work and provide a period of not longer
than thirty (30) days to cure the problem,
which cure period may be immediate if
certain activities must be ceased to protect
the public safety, and may be delivered
personally or by certified mail to the
address listed on the Application for
Permit or to the person in charge of the
construction site at the time of delivery.
Such orders may be enforced by equitable
action in the Mayors Court of New Richmond,
and if the Village prevails in such case,
the Person involved in the Facilities
Work shall be liable for all costs and
expenses incurred by the Village, including
reasonable attorney's fees, in enforcing
such orders, in addition to any and all
penalties established in this Chapter.
(4)
Any Person who engages in Facilities Work
in the Public Rights-of-Way and who has
not received a valid Permit from the Village
shall be subject to all requirements of
this Chapter. Except in those instances
where Facilities Work must be performed
on an emergency basis, the Village may,
in its discretion, at any time until a
Permit is secured, order the Facilities
Work ceased and do any of the following:
require such Person to apply for a Permit
within thirty (30) days of receipt of
a written notice from the Village that
a Permit is required; require such Person
to remove its property and restore the
affected area to a condition satisfactory
to the Village, or take any other action
it is entitled to take under applicable
law, including, but not limited to, filing
for and seeking damages for trespass.
(b) Construction standards.
(1)
The construction, operation, maintenance,
and repair of Facilities shall be in accordance
with applicable health, safety, and construction
codes.
(2)
All Facilities shall be installed and
located with due regard for minimizing
interference with the public and with
other utility users of the rights of way,
including the Village.
(3)
An Applicant shall not place Facilities
where they will damage or interfere with
the use or operation of previously installed
Facilities, or obstruct or hinder the
various utilities serving the residents
and businesses in the Village of their
use of any Public Rights-of-Way.
(4)
Any and all Public Rights-of-Way disturbed
or damaged during the Facilities Work
shall be promptly repaired or replaced
by the Applicant to its previous condition.
(5)
Any contractor or subcontractor used for
Facilities Work must be properly licensed
under laws of the state and all applicable
local ordinances, and each contractor
or subcontractor shall have the same obligations
with respect to its work as an Applicant
would have hereunder and applicable laws
if the work were performed by the Applicant.
The Applicant shall be responsible for
ensuring that the Work of contractors
and subcontractors is performed consistent
with its Permits and applicable law, shall
be fully responsible for all acts or omissions
of contractors or subcontractors, and
shall be responsible for promptly correcting
acts or omissions by any contractor or
subcontractor.
Sec
5. Performance Guarantees and Remedies:
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(a)
Performance Bond.
(1)
Prior to any Facilities Work in the Public
Rights-of-Way,
an Applicant shall establish in the Village's
favor a performance bond in an amount
determined by non-discriminatory regulations
promulgated by the Village Engineer as
necessary to ensure the Applicant's faithful
performance of the Facilities Work. Differences
in bond requirements, including provisions
for self-insurance or provisions for a
single continuing bond where Facilities
Work is conducted by the same Applicant
under numerous permits, may be established
by regulation based on the extent or nature
of the Facilities Work, the past performance
of the applicant and not based on the
characteristics of the applicant. In lieu
of a performance bond, applicant may provide
an acceptable substitute with the approval
of the Village Engineer.
(2)
In the event an Applicant fails to complete
the Facilities Work in a safe, timely,
and competent manner, there shall be recoverable,
jointly and severally from the principal
and surety at the bond, any damages or
loss suffered by the Village as a result,
plus a reasonable allowance for attorneys
fees, up to the full amount of the bond.
(3)
Upon completion of the Facilities Work
to the satisfaction of the Village Engineer,
the Village Engineer shall eliminate the
bond or reduce its amount after a time
appropriate to determine whether the work
performed was satisfactory, which time
shall be established by the Village Engineer
considering the nature of the work performed.
(4)
A performance bond shall be issued by
a surety acceptable to the Village, and
shall contain the following endorsement:
"This
bond may not be canceled, or allowed to
lapse until sixty (60) days after receipt
by the Village, by certified mail, return
receipt requested, of a written notice
from the issuer of the bond of intent
to cancel or not to renew."
(5)
Applicant shall, at its sole cost and
expense, indemnify, hold harmless, and
defend the Village, its officials, boards,
board members, commissions, commissioners,
agents, and employees, against any and
all claims, suits, causes of action or
proceedings, and judgments for damages
or equitable relief which are caused by
the acts, errors and omissions of Applicant
arising out of the construction and maintenance
of its Facilities.
(6)
Recovery by the Village of any amounts
under the performance bond or otherwise
does not limit an Applicant's duty to
indemnify the Village in any way, nor
shall such recovery relieve an Applicant
of its obligations under a Permit or reduce
the amounts owed to the Village other
than by the amounts recovered by the Village
under the performance bond, or in any
respect prevent the Village from exercising
any other right or remedy it may have.
(b)
Penalties.
For
each violation of provisions of this Chapter
or a Permit granted pursuant to this Chapter
as to which the Village has given notice
to Applicant as provided in this Chapter,
penalties may be chargeable to the Applicant
at a rate not exceeding $100 per day for
so long as the violation continues.
Sec.
6. Miscellaneous Provisions:
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(a)
Compliance With Laws.
Each
Applicant shall comply with all applicable
Village ordinances, resolutions, rules
and regulations heretofore and hereafter
adopted or established.
(b)
Franchises Not Superseded. Nothing herein
relieves the Village from any obligations
under an existing franchise.
Nothing
herein shall be deemed to relieve an applicant
of the provisions of an existing franchise,
license or other agreement or permit.
(c)
Rights and Remedies.
(1)
The exercise of one remedy under this
Chapter shall not foreclose use of another,
nor shall the exercise of a remedy or
the payment of damages or penalties relieve
an Applicant of its obligations to comply
with its Permits. Remedies may be used
alone or in combination; in addition,
the Village may exercise any rights it
has at law or equity.
(2)
The Village hereby reserves to itself
the right to intervene in any suit, action
or proceeding involving any provisions
of this Chapter.
(3)
No Applicant shall be relieved of its
obligation to comply
with any of the provisions of this Chapter
by reason of any failure of the Village
to enforce prompt compliance.
(d)
Incorporation by Reference.
Any
Permit granted pursuant to this Chapter
shall by implication include a provision
that shall incorporate by reference this
Chapter into such Permit as fully as if
copied therein verbatim.
(e)
Act of God.
An
Applicant shall not be deemed in violation
of provisions of this Chapter where performance
was rendered impossible by war or riots,
civil disturbances, floods, or other natural
catastrophes beyond the Applicant's control,
and a Permit shall not be revoked or an
Applicant penalized for such noncompliance,
provided that the Applicant takes immediate
and diligent steps to bring itself back
into compliance and to comply as soon
as possible under the circumstances with
its Permit without unduly endangering
the health, safety, and integrity of the
Applicant's employees or property, the
public, Public Right-of-Way, public property,
or private property.
(f)
Calculation of Time.
Unless
otherwise indicated, when the performance
or doing of any act, duty, matter, or
payment is required under this Chapter
or any Permit, and a period of time is
prescribed and is fixed herein, the time
shall be computed so as to exclude the
first and include the last day of the
prescribed or fixed period of time.
(g)
Severability.
If
any term, condition, or provision of this
Chapter shall, to any extent, be held
to be invalid or unenforceable, the remainder
hereof shall be valid in all other respects
and continue to be effective. In the event
of a subsequent change in applicable law
so that the provision that has been held
invalid is no longer invalid, said provisions
shall thereupon return to full force and
effect without further action by the Village
and shall thereafter be binding on the
Applicant and the Village.
Sec.
7. Annexation:
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The
provisions hereof shall specifically apply
to any lands or property annexed as of
the date of such annexation.
Sec.
8. Relocation of Facilities:
Whenever,
by reason of changes in the grade or widening
of a street or in the location or manner
of constructing a water pipe, drainage
channel, sewer, or other Village-owned
underground or above ground structure
it is deemed necessary by the Village
to move, alter, change, adapt, or conform
the underground or above ground facilities
of user, user shall make the alterations
or changes, on alternative right-of-way
provided by the Village, if available,
as soon as practicable after being so
ordered in writing by the Village without
claim for reimbursement or damages against
the Village.
Sec.
9. Standards Applicable To Village:
Any
standards in this chapter relating to
Facilities Work shall be fully applicable
to work performed by the Village and its
departments.
Sec.
10. Savings Clause:
Nothing
contained herein shall in any manner be
deemed or construed to alter, modify,
supersede, supplement or otherwise nullify
any other ordinances of the Village or
requirements thereof, whether or not relating
to or in any manner connected with the
subject written hereof, unless expressly
provided otherwise herein or hereafter.
This
Ordinance shall be in full force and take
effect from and after the date of its
final passage by the Council Members and
approval by the Mayor.
Adopted:
5-28-2002
Amended:
December 10, 2002
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