(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 atlaw 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, nonappealable 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 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 and the State of Ohio 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. In addition, a permittee is deemed to acknowledge that the city may amend or alter regulations concerning the public rights of way as a valid ongoing exercise of the police powers of the city.
(D) Method of service.
(1) Any notice or order to a permittee or an applicant delivered by the city or any of its officials shall be deemed to be properly served if a copy thereof is:
(a) Delivered personally;
(b) Successfully transmitted via facsimile transmission to the last known fax number of the person to be served;
(c) 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;
(d) Sent by certified, pre-posted U.S. mail to the last known address;
(e) 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.; or
(f) 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.
(2) Any notice to the city or any of its officials shall be deemed properly served if a copy thereof is delivered personally or sent by certified, pre-posted U.S. mail to the city at 10900 Reading Road, Cincinnati, Ohio 45241.
(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 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.
(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) 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's and/or permittee's facilities located within the rights of way, the provider and/or permittee shall so notify the Building Department 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 city shall have the right to revoke, pursuant to the provisions of this chapter, any certificate of registration or permit granted pursuant to this chapter, 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 and of 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.
(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 state and the Laws of the United States of America, specifically in that order. 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 Hamilton County, Ohio.
(J) 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 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.
(K) 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 andresponsibility for making such determination shall be upon the person constructing facilities in the rights of way.
(L) Continuing obligation and holdover. In the event a provider continues to operate all or any part of the facilities after the termination, lapse, or revocation 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.
(M) 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 BZA or Safety Service Director as specified in this chapter.
(N) City standards. As part of city required standards, wherever rights of way are under construction, if deemed advisable and practicable by the city, 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.
(O) Chapter headings. Chapter headings are for convenience only and shall not be used to interpret any portion of this chapter.
(Ord. 2002-33, passed 4-16-02)