(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 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 (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 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 Mentor 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 City Engineer or City Manager shall be deemed to be properly served if a copy thereof is:
(1) Delivered personally; or
(2) Successfully transmitted via facsimile transmission and/or email address to the last known fax number and/or email address 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 fourteen (14) days after the date of mailing, then notice may be sent by regular, pre-posted, 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.
(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) 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 providers and permittees as a condition for the grant of any permit or issuance of any Certificate of Registration agree that all disputes shall be resolved in a court of competent jurisdiction in Lake County, Ohio.
(i) Force Majeure. In the event any person's performance of any of the terms, conditions, or obligations required by this 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, explosions, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and fires.
(j) 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.
(k) Appeals. All appeals provided for by this chapter and any notification to the City required by this Chapter shall be in writing. Any applicant or permittee whose application for a Certificate of Registration or a permit has been refused or revoked, may appeal the refusal or revocation to the Board of Building and Zoning Appeals. Such appeal shall be filed with the Department of Community Development on forms provided for such purpose within ten (10) days of the refusal of registration or receipt of the notice of revocation. Upon receipt of the appeal, a hearing shall be scheduled at the next regular meeting of the Board. Notice of the time and place of the hearing shall be given to the applicant or permittee by first class mail to the address appearing on the appeal form. At the hearing, the applicant or permittee shall have the opportunity to present evidence and witnesses in support of his appeal. Within a reasonable time after the hearing, the Board shall either affirm, modify, or reverse the decision of the City Engineer by a majority vote of members present. Notice of said decision shall be sent to the applicant or permittee and a copy filed with the applicant or permittee registration file.
(l) City Standards. As part of City required standards wherever rights-of-way are under construction, if deemed advisable and practicable by the City Engineer, 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.
(m) Section Headings. Section headings are for convenience only and shall not be used to interpret any portion of this Chapter.
(Ord. 17-O-17. Passed 2-7-17.)