(A) Reservation of regulatory and police powers. The village, 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 village under the constitution and laws of the United States, State of Ohio or the Village of Mariemont 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 village, shall be in full force and effect and subject to the exercise thereof by the village at any time. A permittee or provider is deemed to acknowledge that its rights are subject to the regulatory and police powers of the village 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 village pursuant to such powers.
(B) Method of service. Any notice or order of the Building Department, Mayor or Village Council 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 18 years of age or older; or
(4) Sent by certified, pre-posted U.S. mail to the last known address; or
(5) 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 14 days after the date of mailing, then notice may be sent by regular, pre-posted, 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 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.
(C) Applies to all providers. This chapter shall apply to all providers and all permittees unless expressly exempted.
(D) 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 Mayor within 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 village shall have the right to revoke, pursuant to the provisions of the code, any certificate of registration or permit granted pursuant to this chapter, subject to any applicable provisions of law, including the bankruptcy code, 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 provision of the relevant certificate of registration, permit and this chapter.
(E) 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 village, 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 Hamilton County, Ohio.
(F) 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 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.
(G) No warranty. The village 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.
(H) 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 village 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 village's regulatory or police powers shall be resolved in favor of the latter.
(I) Appeals. All appeals provided for by this chapter and any notification to the village required by this chapter shall be in writing and sent via certified U.S. mail to the Mayor or Village Engineer as specified in this chapter.
(J) Village facilities. As part of village required standards wherever rights-of-way are under construction, if deemed advisable and practicable by the Village Engineer, the village may install all such facilities deemed necessary to accommodate future provider needs. Any such installed facilities shall be village property and may be conveyed to any person under such terms and conditions as are deemed advisable by the Village Council.
(K) Section headings. Section headings are for convenience only and shall not be used to interpret any portion of this chapter.
(Ord. O-20-20, passed 10-26-2020)