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(a) City Does Not Accept Liability. 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:
(1) For injuries to persons, damage to property, or loss of service claims; or
(2) 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 rights-of-way, whether any act or omission complained of is authorized, allowed, or prohibited by a permit. 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 rights-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 and all 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 worker's 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); and
B. 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 City's negligence or the negligence of any other party shall have contributed to such claim, cause of action, judgment, injury or damage; and
C. 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 City programming; and
D. 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. Cooperate 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. 051-2022. Passed 12-5-22.)
(a) Non-Exclusive Remedy. The remedies provided in Sections 1180.01 through 1180.21 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 public rights-of-way, including damages to the rights-of-way, whether caused by a violation of any of the provisions of Sections 1180.01 through 1180.21 or other provisions of this Code.
(b) Severability. If any section, subsection, sentence, clause, phrase, or portion of Sections 1180.01 through 1180.21 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 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.
(c) Reservation of Regulatory and Police Powers. The City, by the granting of a permit or by issuing a certificate of registration pursuant to Sections 1180.01 through 1180.21, 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 Maumee 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.
(d) Method of Service. Any notice or order of the Director of Service or City Administrator 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 eighteen (18) years of age or older; or
(4) Sent by certified U.S. mail to the last known address; or
(5) If the notice is attempted to be served by certified 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, 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 (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) 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.
(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 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, pursuant to the provisions of this Code, any certificate of registration or permit granted pursuant to Sections 1180.01 through 1180.21, 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, all provisions of this Code, 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 Sections 1180.01 through 1180.21.
(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 City of Maumee, 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 Lucas County, Ohio.
(j) Force Majeure. In the event any person's performance of any of the terms, conditions or obligations required by Sections 1180.01 through 1180.21 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.
(k) No Warranty. The City makes no representation or warranty regarding its right to authorize the construction of facilities on any particular right-of-way. The burden and responsibility for making such determination shall be upon the person installing facilities in the right-of-way.
(l) 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 Sections 1180.01 through 1180.21 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) City Standards. As part of City required standards wherever right-of-way projects are under construction, if deemed advisable and practicable by the Director of Service , the City may install, or require Permittee to install at Permittee's cost all such facilities deemed necessary to accommodate future provider needs or needs of the City of Maumee. 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 Administrator. No Permittee or utility shall charge the City of Maumee co-location fees including those for City of Maumee lights, cameras, or other related equipment. No Permittee shall cross a utility line located in any Maumee right of way.
(Ord. 051-2022. Passed 12-5-22.)
(a) The purpose of this section is to establish general procedures and standards, consistent with all applicable federal, state, and local laws, for the siting, construction, installation, collocation, modification, operation, and removal of small cell facilities and wireless support structures in the right-of-way.
(b) The intent of this section is to:
(1) Establish basic criteria for applications to locate small cell facilities and wireless support structures in the right-of-way and authorize the City Administrator or his or her designee to develop, publish, and from time to time amend applications and other associated materials to provide clear guidance to applicants;
(2) Ensure that small cell facilities and wireless support structures are carefully designed, constructed, modified, maintained, and removed when no longer in use in conformance with all applicable health and safety regulations;
(3) Preserve the character of the City of Maumee by minimizing the potentially adverse visual impact of small cell facilities and wireless support structures through careful design, siting, landscaping, and camouflaging techniques to blend these facilities into their environment to the maximum extent practicable;
(4) Enhance the ability of wireless service providers to deploy small cell facilities and wireless support structures in the City of Maumee quickly, effectively, and efficiently so that residents, businesses, and visitors benefit from ubiquitous and robust wireless service availability;
(5) Establish an application process and structure for payment of fees and charges to be uniformly applied to all applicants, operators and owners of small cell facilities and wireless support structures for such facilities;
(6) Comply with, and not conflict with or preempt, all applicable state and federal laws, including without limitation Section 101(a) and Section 704 of the Telecommunications Act, Pub. L. 104104, 101 Stats. 56, 70 (Feb. 8, 1996) (codified as 47 U.S.C. §§ 253(a), 332(c)(7)), as may be amended or superseded, and Section 6409(a) of the Middle Class Tax Relief and Job Creation Act, Pub. L. 112-96, 126 Stat. 156 (Feb. 22, 2012) (codified as 47 U.S.C. § 1455(a)), as may be amended or superseded, and all FCC rules and regulations to interpret and implement applicable federal statutes.
(Ord. 051-2022. Passed 12-5-22.)
(a) Subject to the Ohio Revised Code and approval of an application under this section, an operator may collocate a small cell facility and construct, maintain, modify, operate, or replace wireless support structures in, along, across, upon, and under the City of Maumee right-of-way.
(1) An operator shall comply with generally applicable standards that are consistent with this section and any rules, regulations, and design guidelines adopted by the City of Maumee for the collocation of a small cell facility and construction, maintenance, modification, operation, or replacement of wireless support structures in, along, across, upon, and under the City of Maumee right-of-way, unless otherwise prohibited by state or federal law.
(2) All wireless support structures and small cell facilities shall be constructed and maintained so as not to impede or impair public safety or the legal use of the right-of-way by the City of Maumee, the traveling public, or other public utilities.
(b) The permitting procedures and authorizations set forth herein shall apply only to small cell facilities and wireless support structures in the right-of-way, and do not authorize the construction and operation of a wireline backhaul facility.
(c) Relationship to Other Sections. This section shall supersede all conflicting requirements of other titles and sections of this Code regarding the locating and permitting of small cell facilities and wireless support structures in the right-of-way.
(d) Nothing in this section precludes the City of Maumee from applying its generally applicable health, safety, and welfare regulations when granting consent for a small cell facility or wireless support structure in the City of Maumee right-of-way.
(Ord. 051-2022. Passed 12-5-22.)
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