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(a) Non-Exclusive Remedy. The remedies provided in this chapter are not exclusive or in lieu of other rights and remedies that the City may have. The City is hereby authorized at any time to seek legal and equitable relief for actual or threatened injury to the rights-of-way, including damages to the rights-of-way, whether caused by a violation of any of the provisions of this chapter or other provisions of applicable law.
(b) Severability. If any section, subsection, sentence, clause, phrase, or portion of this chapter 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 chapter 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 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 under this chapter, 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 Centerville 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, agrees that all lawful powers and rights, regulatory power, or police power, or otherwise as are or the same 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 enacted by the City pursuant to such powers.
(d) Method of Service. Any notice or order of the Director of Public Works or City Manager shall be deemed to be properly served if a copy thereof is:
(1) Delivered personally;
(2) Successfully transmitted via facsimile transmission to the last known fax number of the person to be served;
(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 years of age or older;
(4) Sent by certified, prepaid U.S. mail to the last known address;
(5) If the notice is attempted to be served by certified, prepaid U.S. mail and then returned showing that the letter was not delivered, or the certified letter is not returned within fourteen days after the date of mailing, then notice may be sent by regular, prepaid, 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 days after the date of mailing, then notice shall be posted in a conspicuous place in or about the structure, building, premises or property effected by such notice.
(e) Applies to All Providers. This chapter shall apply to all providers and all permittees unless expressly exempted.
(f) Police Powers. All person's rights are subject to the police powers of the City to adopt and enforce ordinances necessary to protect the health, safety, and welfare of the public. All persons shall comply with all applicable laws enacted by City pursuant to its police or other powers. In particular, all persons shall comply with City zoning and other land use requirements pertaining to the placement and specifications of facilities.
(g) Compliance. No person shall be relieved of its obligation to comply with any of the provisions of this chapter by reason of any failure of City to enforce prompt compliance.
(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 Public Works within fourteen 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 the certified ordinances certificate of registration or permit granted pursuant to this chapter, subject to any applicable provisions of law, including the Bankruptcy Act, 120 days after the appointment of a receiver or trustee to take over and conduct the business of the 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, this chapter, 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 provisions of the relevant certificate of registration, permit, or this chapter.
(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 State of Ohio. All disputes shall be resolved in a court of competent jurisdiction in Montgomery County, Ohio or as otherwise agreed to in writing by the City.
(j) Force Majeure. In the event any person's performance of any of the terms, conditions, or obligations required by this Chapter 1080 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, 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 rights-of-way. The burden and responsibility for making such determination shall be upon the person constructing facilities in the rights-of-way.
(l) Continuing Obligation and Holdover. In the event a provider continues to operate all or any part of the facilities after the term of a certificate of registration, such provider shall continue to comply with all applicable provisions of this chapter 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.
(m) Conflict with Franchise. Provisions of this chapter that are in conflict with or alter similar provisions of a valid provider franchise shall be waived for said provider and shall be superseded by the provisions of the franchise.
(n) Appeals. All appeals provided for by this chapter and any notification to the City required by this chapter shall be in writing and sent via certified mail to the City Manager or Director of Public Works as specified in this chapter.
(o) City Standards. As part of City required standards wherever rights-of-way are under construction, if deemed advisable and practicable by the Director of Public Works, the City may install all such facilities deemed necessary to accommodate future provider needs. 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 Manager.
(p) Chapter and Section Headings. Chapter and section headings are for convenience only and shall not be used to interpret any portion of this chapter.
(Ord. 12-03. Passed 5-19-03.)