(a) Reservation of Regulatory and Police Powers. The Municipality, by the granting of a Permit or by issuing a Certificate of Registration pursuant to Chapter 931, 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 Municipality under the Constitution and Laws of the United States, State of Ohio or the Municipality 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 Municipality, shall be in full force and effect and subject to the exercise thereof by the Municipality at any time. A Permittee or Provider is deemed to acknowledge that its rights are subject to the regulatory and police powers of the Municipality 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 Municipality pursuant to such powers.
(b) Rules and Regulations. The Municipality may propose, and the legislative authority may adopt (and from time to time amend) the Rules and Regulations regarding Chapter 931, 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 Municipality shall provide written notice and a copy of the proposed language of such adoption or amendment, via electronic mail, to each Provider who holds a current Certificate of Registration. Each Provider shall then have thirty (30) days following the date of the Municipality's mailing to provide written comment regarding the proposed language to the Municipality. At least forty-five (45) days, but not more than sixty (60) days following the date of the Municipality's notification, the Municipality 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 Municipality. The Municipality Engineer 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 Municipality, for approval by the legislative authority.
(c) Method of Service. Any notice or order of the Mayor, Municipality Administrator, Municipality Fiscal Officer, Municipality Council, or Municipality Engineer 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 via electronic mail; 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, preposted U.S. mail to the last known address; or
(5) If the notice is attempted to be served by certified, preposted 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, preposted, first-class U.S.; 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.
(d) Applies to All Providers. Chapter 931 shall apply to all Providers and all Permittees unless expressly exempted.
(e) 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 Municipality Administrator 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 Municipality shall have the right to revoke, pursuant to the provisions of the Code, any Certificate of Registration or Permit granted pursuant to Chapter 931, 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, Chapter 931, 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 provision of the relevant Certificate of Registration, Permit and Chapter 931.
(f) Choice of Law and Forum. This Chapter 931 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 Municipality, 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, unless otherwise required by Law, all disputes shall be resolved in a court of competent jurisdiction in Fairfield County, Ohio.
(g) Force Majeure. In the event any Person's performance of any of the terms, conditions or obligations required by Chapter 931 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.
(h) No Warranty. The Municipality 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.
(i) 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 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 Municipality 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 Municipality's regulatory or police powers shall be resolved in favor of the latter.
(j) Appeals. All appeals provided for by this Chapter and any notification to the Municipality required by this Chapter shall be in writing and sent via certified U.S. mail to the Mayor, Municipality Administrator, Municipality Fiscal Officer, Municipality Council, or Municipality Engineer as specified in this Chapter 931.
(k) Municipality Facilities. As part of Municipality required standards wherever Rights of Way are under Construction, if deemed advisable and practicable by the Municipality, the Municipality may install all such Facilities deemed necessary to accommodate future Provider needs. Any such installed Facilities shall be Municipality property and may be conveyed to any Person under such terms and conditions as are deemed advisable by the Municipality Council.
(l) Section Headings. Section headings are for convenience only and shall not be used to interpret any portion of this Chapter.
(Ord. 17-2021. Passed 5-4-21.)