1030.02  GENERAL REQUIREMENTS.
   (a)   Administration.  The City Manager shall be the principal City official responsible for the administration of this chapter except as otherwise provided herein. The City Manager may delegate any or all of the duties hereunder to an official designee.
   (b)   Utility Service Provider Required to Have Certificate of Registration.  No utility service provider shall occupy or use the City public rights-of-way without having a valid certificate of registration issued by City pursuant to this chapter.  Use shall include construction, maintenance, or the performance of any work on a utility system.
   (c)   Utility System in Place Without a Valid Certificate of Registration.  Beginning one year after the effective date of this chapter, any utility system or element of a utility system located in a public right-of-way in the City, for which a valid certificate of registration for the utility service provider is required and has not been obtained from the City, shall be deemed to be a nuisance and an unauthorized use of the Public right-of-way. The City may exercise any remedies or rights it has, including, but not limited to abating the nuisance; and/or prosecuting the violator.
   (d)   When Permit Required by a Utility Service Provider.
      (1)   If the location or proposed location of any element of a public or private utility system is in a public right-of-way; then, the consent of the City, evidenced by the issuance by the City of a street opening permit in accordance with Chapter 1020, must be obtained by that utility service provider before the construction, demolition or removal of any element of the utility system is permitted or any excavation by that utility service provider in the public right-of-way is permitted.  Should an emergency situation arise, (i.e. repair after storms, weather emergencies, accidents, etc.) a street opening permit application should be obtained as soon as practical after the emergency is addressed.
      (2)   This chapter does not require any utility service provider that, as of the effective date of this chapter, occupies, or has obtained the consent of a City to occupy, a public right-of-way in the City, to apply for additional or continued consent of the City as to any existing lines, poles, pipes, conduits, ducts, equipment, and related appurtenances and facilities that are in place on the effective date of this chapter.
   (e)   Utility Service Provider Not Exempt from Permit Requirement or Revocation of the Permit.  No language or provisions set forth in Chapter 1020 et seq. shall be interpreted as exempting a utility service provider from the requirement of obtaining a street opening permit or providing a utility service provider an exception to the power of the City Manager to revoke any such permit issued.
   (f)   Exemptions.
      (1)   The City shall not be required to obtain a certificate of registration for any utility system for which the City is the utility service provider.
      (2)   In the case where a utility service provider has a valid franchise agreement with the City and the City Manager is of the opinion that one or more of the requirements of this chapter are adequately addressed in that franchise agreement, then the City Manager, at his or her sole discretion, may exempt such a utility service provider from one or more of the requirements of this chapter.
   (g)   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 street opening permit with a mutual right in either party to terminate without cause upon giving 60 days written notice to the other. The requirements and conditions of such a street opening 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 street opening permit as provided herein, and the City provides it, the City likewise has the power to revoke it.
   (h)   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 or may hereafter have, which are vested in the City under the Constitution and laws of the United States, State of Ohio, and under the Charter of the City of Miamisburg to regulate the use of the rights-of-way. 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.
   (i)   Method of Service.  Any notice or order of the City or City Manager shall be deemed to be properly served if a copy thereof is delivered personally; or successfully transmitted via facsimile transmission to the last known fax number of the person to be served; or 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 order; or sent by certified, pre-paid U.S. mail to the last known address; or if the notice is attempted to be served by certified, pre-paid 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, prepaid, first class U.S. mail; or if the notice is attempted to be served by regular, first class U.S. mail, postage prepaid, 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.
   (j)   Applies to All Providers.  This chapter shall apply to all providers unless expressly exempted.
   (k)   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 the 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.
   (l)   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.
   (m)   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 disputes shall be resolved in the court of competent jurisdiction in Montgomery County, Ohio or as otherwise agreed to in writing by the City.
   (n)   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 chapter, 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.
   (o)   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.
   (p)   Continuing Obligation and Holdover.  In the event a provider continues to operate all or any part of the facilities after the term of a certificate of registration, such provider 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.
   (q)   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 mail to the City Manager as specified in Section 1030.07.
   (r)   City Standards.  As part of City required standards wherever rights-of-way are under construction, if deemed advisable and practicable by the City Manager, 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.
   (s)   Chapter and Section Headings.  Chapter and section headings are for convenience only and shall not be used to interpret any portion of this chapter.
(Ord. 5472.  Passed 3-20-01.)