§ 722-9. General Provisions.

(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 under the Cincinnati municipal code, or 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 right of way, including damages to the right of way, whether caused by a violation of any of the provisions of this chapter or other provisions of this code.

(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 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 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 or right, 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 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 city under the constitution and laws of the United States, state of Ohio and under the charter of the city of Cincinnati to regulate the use of the right of way. The permittee by its acceptance of a permit for work in the right of way, 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 or city manager shall be deemed to be properly served if a copy thereof is:

(i)

Delivered personally; or

(ii)

Successfully transmitted via facsimile transmission to the last known fax number of the person to be served; or

(iii)

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

(iv)

Sent by certified, preposted U.S. mail to the last known address; or

(v)

If the notice is attempted to be served by certified, preposted 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, preposted, first-class U.S.; or

(vi)

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.

(e)

Applies to All Providers. This chapter shall apply to all providers and all permittees unless expressly exempted.

(f)

Police Powers and Charter Authority. 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. In addition, all persons' rights under this chapter shall be subject to the city's home rule charter authority over the use of the public right-of-way.

(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 the city to enforce prompt compliance.

(h)

Choice of Law and Forum. This chapter and the terms and conditions of any permit or enforcement action under this chapter shall be construed and enforced in accordance with the substantive laws of the City of Cincinnati, State of Ohio, and United States, in that order. As a condition of the grant of any permit all disputes shall be resolved in a court of competent jurisdiction in Hamilton County, Ohio.

(i)

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.

(j)

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.

(k)

City Standards. As part of city-required standards wherever the right of way is under construction, if deemed advisable and practicable by the director, 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.

(Ordained by Emer. Ord. No. 349-2012, § 1, eff. Sept. 26, 2012; Emer. Ord. No. 042-2014, § 22, eff. March 19, 2014)