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951.21 CONSTRUCTION AND REMOVAL BONDS.
(a) Construction Bond. Upon issuance of a Certificate of Registration, and prior to the commencement of any Construction, and continuously thereafter, a Provider shall deposit with the Director of Public Service and maintain an irrevocable, unconditional letter of credit or surety bond in an amount determined by the Director of Public Service to be appropriate based upon fair and reasonable criteria. The full amount of the letter of credit or surety bond shall remain in full force and effect throughout the terms and conditions of this chapter and/or until any necessary site restoration is completed to restore the site to a condition comparable or better to that which existed prior to the issuance of Certificate of Registration. Unless a Construction default, problem or deficiency involves an Emergency or endangers the safety of the general public, the Director of Public Service shall serve written notice to the Construction Permittee detailing the Construction default, problem or deficiency. If the Director of Public 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 Public Service.
(b) Removal Bond. Upon issuance of a Certificate of Registration and continuously thereafter, and until one hundred twenty (120) days after a Provider's Facilities have been removed from the Rights-of-Way (unless the Director of Public Service notifies the Provider that a reasonably longer period shall apply), a Provider shall deposit with the Finance Director and maintain an irrevocable, unconditional letter of credit or surety bond in an amount equal to or greater than one hundred thousand dollars ($100,000). The Director of Public 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 Public 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 Public Service.
(c) Blanket Bond. In lieu of the Construction Bond and the Removal Bond required by this Section 951.21
, Provider may deposit with the Finance Director an irrevocable, unconditional letter of credit and/or surety bond in the amount of five million dollars ($5,000,000). Unless a Construction default, problem, or deficiency involves an Emergency or endangers the safety of the general public, the Director of Public Service shall make all reasonable efforts to allow a Provider 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 Public Service' attachment of the letter of credit or surety bond. Upon attachment, written notice shall be provided to the Provider by the Director of Public Service.
(d) Self-Bonding. In lieu of the Construction Bond, Removal Bond, and Blanket Bond required by this Section 951.21
, those Providers maintaining a book value in excess of fifty million dollars ($50,000,000) may submit a statement to the Finance Director 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 sections of this Section 951.21
. This statement shall include:
(1) Audited financial statements for the previous year;
(2) A description of the Applicant's self-bonding program; and
(3) Other information as reasonably requested by the Director of Public Service.
(e) Purposes.
(1) The letter of credit or surety bond required by this section shall serve as security for:
A. The faithful performance by the Permittee or Provider of all terms, conditions and obligations of this chapter; and
B. Any expenditure, damage, or loss incurred by the City occasioned by the Permittee or Provider's violation of this chapter or its failure to comply with all rules, regulations, orders, Permits and other directives of the City issued pursuant to this chapter; and
C. The payment of all compensation due to the City, including Permit Fees; and
D. The removal of Facilities from the Rights-of-Way pursuant to this chapter; and
E. 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. The payment of any other amounts which become due to the City pursuant to this chapter or Law.
(Ord. 30-2019. Passed 4-22-19.)
951.22 INDEMNIFICATION AND LIABILITY.
(a) City Does Not Accept Liability.
(1) 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:
A. For injuries to Persons, damage to property, or loss of Service claims; or
B. 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 Right-of-Way, whether any act or omission complained of is authorized, allowed, or prohibited by a Permit, unless the act or omission is the result of the City's negligent or willful acts. 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 Right-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 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 workers' 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), unless the result of the City's negligent or willful acts; and
1. 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 negligence of any other party shall have contributed to such claim, cause of action, judgment, injury or damage; and
2. 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 the City's actions; and
3. 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. Cooperating 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. 30-2019. Passed 4-22-19.)
951.23 GENERAL PROVISIONS.
(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 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 Rights-of-Way, including damages to the Rights-of-Way, whether caused by a violation of this Code.
(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.
(c) Revocability. 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.
(d) Reservation of Regulatory and Police Powers. The City, by the granting of a Permit or by issuing a Certificate of Registration pursuant to 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 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.
(e) Method of Service. Any notice or order of the Director of Public Service or Mayor 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) Successfully transmitted via electronic mail to the last known e-mail address of the person to be served; or
(4) 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
(5) Sent by certified, pre-posted U.S. Mail to the last known address; or
(6) If the notice is attempted to be served by certified, pre-posted 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, pre-posted, first-class U.S. Mail; or
(7) 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) Applies to All Providers. This chapter shall apply to all Providers and all Permittees unless expressly exempted.
(g) 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, unless otherwise prohibited by Law.
(h) 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 the City to enforce prompt compliance.
(i) Foreclosure and Receivership.
(1) Upon the filing of any voluntary or involuntary petition under the Bankruptcy Code 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 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 any Certificate of Registration or Permit granted pursuant to this chapter, subject to any applicable provisions of law, including the Bankruptcy Code, one hundred and twenty (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 one hundred and twenty (120) days or unless:
A. Within one hundred and twenty (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 one hundred and twenty (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 and this chapter.
(j) 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, 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 Summit County, Ohio.
(k) Force Majeure. In the event any Person's performance of any of the terms, conditions or obligations required by this chapter 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 Person 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.
(l) 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 installing Facilities in the Rights-of-Way.
(m) Continuing Obligation and Holdover. In the event a Provider or Permittee continues to operate 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 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.
(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 U.S. Mail to the Mayor or Director of Public Service as specified in this chapter
(o) City Facilities. As part of City required standards, wherever Rights-of-Way are under Construction, if deemed advisable and practicable by the Director of Public Service, 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 Mayor.
(p) Section Headings. Section headings are for convenience only and shall not be used to interpret any portion of this chapter.
(Ord. 30-2019. Passed 4-22-19.)
951.99 PENALTY.
(a) 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 following penalties shall apply:
(1) For failure to comply with any other provision of this chapter, the penalty shall be a civil forfeiture, payable to the City, in an amount up to five hundred dollars ($500.00) per day for each violation. In addition, for failure to timely comply with a notice by the Director of Public Service to remove or rearrange Facilities, an additional civil forfeiture equal to any costs incurred by the City as a result of such failure, including but not limited to any penalties or liquidated damages charged the City by its contractors occasioned thereby, shall be imposed.
(2) Any Person who fails to pay any forfeiture imposed pursuant to Section 951.99(a)(1) of this chapter shall be guilty of a misdemeanor of the fourth (4th) degree. Each day such violation continues shall be deemed a separate offense.
(Ord. 30-2019. Passed 4-22-19.)
CODIFIED ORDINANCES OF CUYAHOGA FALLS