[1]
Editor's Note: Original R.O. 1997 §§ 635.020
through 635.440, relating to communications and cable services, and
§§ 635.610 through 635.660, relating to miscellaneous
provisions of communication and cable services code, were repealed
5-27-2008 by Ord. No. 1490.
[R.O. 1997 § 635.010; Ord. No. 705 § 1.1, 4-23-2001]
A.
The City hereby declares as a legislative
finding that the rights-of-way within the City of Wildwood, Missouri:
1.
Are a unique and physically limited
resource;
2.
Are critical to the travel and transport
of persons and property in the City; and
3.
Are intended for public uses and
must be managed and controlled consistent with that intent; and can
be partially occupied by the facilities of utilities and public service
entities to the enhancement of the health, welfare and general economic
well-being of the City and its citizens; and require adoption of the
specific additional regulations established by this Code to ensure
coordination of users, maximize available space, reduce maintenance
and costs to the public and facilitate entry of a maximum number of
providers of cable, communications and other services in the public
interest.
[R.O. 1997 § 635.020; Ord. No. 1490 §§ 1—2, 5-27-2008]
The words and phrases used in this
Chapter shall have the meanings as set forth in Section 67.2677, RSMo.,
or, if not defined therein, shall have such meanings as established
by the Code and including the following:
The surface and space on, above and below every municipal
street, alley, road, highway, lane or City right-of-way dedicated
or commonly used now or hereafter for utility purposes and facilities
thereon, including, but not limited to, overhead lighting facilities.
This term shall not include any County, State or Federal rights-of-way
except where controlled or maintained by the City or as otherwise
provided by applicable laws or pursuant to an agreement between the
City and any such person or agency. "Rights-of-way" shall not include
public property owned or leased by the City and not intended for right-of-way
use, including, but not limited to, City Hall property or public works
facilities.
Chapter 635, Sections 635.170 to 635.320, as well as Chapter 425, Grading, of the City of Wildwood, Missouri, Municipal Code and such other ordinances that regulate, without limitation, the excavation, construction and use of the rights-of-way by all persons and such other ordinances and regulations regulating the same.
For the purposes of this Chapter, a utility installation permit shall comply with all of the requirements and regulations contained in Section 415.500, Conditional Use Permit Procedure (CUP), of the Municipal Code of the City of Wildwood, Missouri, except as noted herein: actions relating to this type of permit request shall be completed as part of a single hearing process before the Planning and Zoning Commission, unless otherwise postponed by vote of the Planning and Zoning Commission. Thereafter, the City Council's time allowance to exercise its "power of review" is hereby limited to a single meeting date, unless otherwise extended by vote of the City Council. Utility installation permits may be considered singularly or in bulk.
[R.O. 1997 § 635.030; Ord. No. 1490 §§ 1—2, 5-27-2008; Ord. No. 2775, 4-10-2023]
A.
Pursuant
to Section 67.2689, RSMo., and as partial compensation for use of
the City's public rights-of-way, each video service provider or other
person providing cable services or video services within the City
shall, to the extent permitted by law, pay to the City a fee. The
fee is to be calculated as a percentage of the gross revenues, as
defined under Section 67.2677, RSMo., from such video services provided
in the geographic area of the City. The fee shall be paid to the City
in accordance with Section 67.2689, RSMo. The percentage used to calculate
the fee shall be equal to five percent (5%) or the maximum percentage
allowed pursuant to Section 67.2689.2, RSMo., as amended.
B.
The
City shall have the right to audit any video service provider as authorized
by Section 67.2691, RSMo.
C.
Any
late payments shall accrue interest due to the City compounded monthly
at one and one-half percent (1 1/2%) or such other maximum rate
as may be established by law.
[R.O. 1997 § 635.040; Ord. No. 1490 §§ 1—2, 5-27-2008]
All video service providers providing
service within the City shall adopt and comply with the minimum customer
service requirements set forth in Section 67.2692, RSMo. Notice or
receipt of this Chapter by the video service provider shall be deemed
notice of the City's having invoking such customer service requirements.
[R.O. 1997 § 635.050; Ord. No. 1490 §§ 1—2, 5-27-2008]
Video service providers shall comply with the requirements of Sections 67.2707, 67.2709, RSMo., and all applicable ordinances and regulations consistent with Sections 67.1830 to 67.1846, RSMo., relating to use of the City rights-of-way. Each video service provider shall indemnify and hold harmless the City and its officers, employees and agents from any loss or damage including, but not limited to, attorneys' fees as provided in such ordinances or regulations, but in no event less than the obligation on video service providers set forth in Section 67.2695, RSMo. The City may require documentation of such indemnification by written agreement or other instrument to the extent permitted by law. In addition, video service providers shall be subject to and comply with such supplementary provisions relating to placement, screening and relocation of facilities as provided in Sections 635.110 to 635.150 of this Chapter and such other applicable laws of the City, except as may be otherwise validly preempted. Notwithstanding any other ordinance to the contrary, no facilities to be used for video services shall be installed without obtaining a permit from the City authorizing the location and plans for such facilities; provided that this provision shall not apply to installation of otherwise lawful and authorized poles or wires.
[R.O. 1997 § 635.060; Ord. No. 1490 §§ 1—2, 5-27-2008]
Each video service provider shall
designate a number of channels for public, educational and governmental
programming consistent with Section 67.2703, RSMo.; provided that
any greater number of channels, as may be required in the incumbent
cable franchise or franchise ordinance, shall be required pursuant
to Section 67.2703.2, RSMo. The City shall bear no cost relating to
the transmission, availability or maintenance of such channels unless
expressly authorized by the City in writing and approved by the Governing
Body. Incumbent cable operators and other video service providers
shall provide support for such public, educational and governmental
channels consistent with Section 67.2703.8, RSMo.
[R.O. 1997 § 635.070; Ord. No. 1490 §§ 1—2, 5-27-2008]
The obligations of and regulations
governing any cable service provider or video service provider as
set forth in any existing cable services or video services franchise
agreement, license agreement, rights-of-way use agreement or the Code
shall also continue to apply and be in force to the full extent permitted
by applicable law, until expiration as provided therein, or until
preempted by the issuance of video service authorizations by the Missouri
Public Service Commission or otherwise by law, but only to the extent
of said preemption, including the imposition of a franchise fee of
five percent (5%) imposed on gross revenues of all such providers.
[R.O. 1997 § 635.080; Ord. No. 1490 §§ 1—2, 5-27-2008]
The City retains all rights in Sections
67.2675 through 67.2714, RSMo., inclusive, and may take any and all
actions permitted by law to exercise such rights or to enforce such
obligations on providers of video service.
[R.O. 1997 § 635.090; Ord. No. 1490 §§ 1—2, 5-27-2008]
A copy of this Chapter shall be delivered
to each video service provider operating in the City after notice
to the City that such provider is authorized to provide service within
the City; provided that the provisions of this Chapter shall, to the
extent permitted by law, not be affected by any claimed or actual
failure of a service provider to have received delivery of a copy
of this Chapter.
[R.O. 1997 § 635.100; Ord. No. 1490 § 3, 5-27-2008]
Every public utility, cable company,
video service provider and other users of the City rights-of-way or
adjacent easements to provide services shall comply with the supplemental
regulations in this Section regarding the placement of accessory utility
facilities on public or private property. For purposes of this Section,
"accessory utility facilities" shall mean such facilities, including
pedestals, boxes, vaults, cabinets or other ground-mounted or below-ground
facilities that directly serve the property or local area in which
the facility is placed, are not primarily for transmission or distribution
to other locations, do not materially alter the character of the neighborhood
or area and otherwise are customarily found in such areas. Except
where limited by other provisions of City ordinances, accessory utility
facilities shall be subject to the following supplementary regulations.
[R.O. 1997 § 635.110; Ord. No. 1490 § 3, 5-27-2008]
The design, location and nature of
all accessory utility facilities on private or public property shall
require approval of the City, which approval shall be considered in
a non-discriminatory manner, in conformance with this Chapter and
subject to reasonable permit conditions as may be necessary to meet
the requirements of this Chapter or other City ordinances. In considering
individual or multiple location applications, the City shall review
the request to ensure the proposed facilities do not impair public
safety, harm property values or significant sight lines or degrade
the aesthetics of the adjoining properties or neighborhood and taking
into consideration reasonable alternatives. Any material changes or
extensions to such facilities or the construction of any additional
structures shall be subject to the requirements and approvals as set
forth herein. Unless otherwise prohibited, utility facilities subject
to this Section may be located in the minimum setback areas provided
that all other requirements are met. To the extent permitted by Section
67.2707.1(3), RSMo., the time, method, manner or location of facilities
to be located in the rights-of-way may be established or conditioned
by the City to protect the rights-of-way or to ensure public safety.
[R.O. 1997 § 635.120; Ord. No. 1490 § 3, 5-27-2008]
A.
The following general regulations apply
to all accessory utility facilities:
1.
The placement of all such facilities shall be governed by Sections 635.130 and 635.140 herein and, where applicable, any utility installation permit granted pursuant to Sections 635.130 and 635.140, and in accordance with the City's zoning ordinance and subdivision and development regulations, unless otherwise noted herein.
2.
All such facilities shall be constructed
and maintained in such a manner so as not to emit any unnecessary
or intrusive noise.
3.
All facilities and utility boxes
shall be deemed abandoned if:
a.
Declared abandoned by the owner of
the facility or utility box; or
b.
No longer in active use and the owner
fails to respond within forty-five (45) days to a written notice sent
by the City requesting confirmation that the facility is no longer
in use.
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All abandoned facilities and utility
boxes shall be removed within thirty (30) days of written notice by
the City requesting said removal; thereafter, the City may cause the
removal at the cost of the utility.
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4.
Unless otherwise restricted, utility
poles for authorized above ground lines or facilities shall be permitted
up to the maximum heights as provided elsewhere in the Code where
utilities are not otherwise required to be placed underground; provided
that such poles shall be no higher than necessary, maintained so as
to avoid leaning from upright position, and without use of guy wires
crossing rights-of-way or pedestrian routes, except where approved
by the City as necessary due to the lack of feasible alternatives.
5.
Utility facilities placed in designated
historic areas may be subject to additional requirements regarding
the placement and appearance of facilities as may be necessary to
reasonably avoid or reduce any negative impact of such placement.
6.
Any damage to landscaping or vegetation
on private or public property during installation or maintenance of
facilities shall be promptly remedied by the facility owner.
7.
At least forty-eight (48) hours prior
to any installation, replacement or expansion of any facility located
on private property, the facility owner shall provide notice to all
property owners within one hundred eighty-five (185) feet from the
site. Notice shall include detailed description of work to be done,
the exact location of work and the time and duration when it will
be undertaken.
8.
No facilities may be located so as
to interfere, or be likely to interfere, with any public facilities
or use of public property.
9.
All utility facilities not authorized
by this Section or specifically addressed elsewhere in the Code shall
be authorized only as a utility installation permit.
[R.O. 1997 § 635.130; Ord. No. 1490 § 3, 5-27-2008]
In residential zoning districts,
accessory utility facilities less than three and one-half (3 1/2)
feet in height and covering less than eight (8) square feet in area
may be installed above ground in the side and rear yard setback areas,
where utility easements exist, with the prior approval of the City.
Except as otherwise may be authorized herein, any larger utility facility
shall be installed underground or authorized to be installed above
ground only by utility installation permit. All above ground facilities,
where authorized, shall be placed in the rear yard wherever practical.
If locating these facilities in the rear yard is not practical, then
such facilities may be located in the side yard. Such facilities shall
not be located in the front yard or within the public right-of-way,
unless otherwise approved by the City upon a determination that all
other alternatives are not feasible.
[R.O. 1997 § 635.140; Ord. No. 1490 § 3, 5-27-2008]
In non-residential zoning districts,
accessory utility facilities with a height of less than five (5) feet
and covering less than sixteen (16) square feet in area may be installed
above ground with the prior approval of the City. Except as otherwise
may be authorized herein, any larger utility facility shall be installed
underground or authorized to be installed above ground only by utility
installation permit. All above ground facilities, when authorized,
shall be placed in the rear yard wherever practical. If locating these
facilities in the rear yard is not practical, then such facilities
may be located in the side yard. Such facilities shall not be located
in the front yard or within the public right-of-way, unless otherwise
approved by the City upon a determination that all other alternatives
are not feasible.
[R.O. 1997 § 635.150; Ord. No. 1490 § 3, 5-27-2008]
A.
A sightproof landscape screen shall be
provided for all authorized above ground facilities taller than three
(3) feet in height or covering in excess of four (4) square feet in
size. Such screen shall be required to sufficiently conceal the facility.
A landscape plan identifying the size and species of landscaping materials
shall be submitted by the utility and approved by the City prior to
installation of any facility requiring landscape screening, which
shall be reviewed with recommendation(s) by the City's landscape architect.
The utility shall be responsible for the installation, repair or replacement
of screening materials. Alternative screening or concealment may be
approved by the City to the extent it meets or exceeds the purposes
of these requirements. Facilities located in rear yards may be exempted
from screening where located so as not to be visible from:
[R.O. 1997 § 635.160; Ord. No. 1490 § 3, 5-27-2008]
All accessory utility facilities shall be subject to all other applicable regulations and standards as established as part of the Code, including, but not limited to, building codes, zoning requirements and rights-of-way management regulations in addition to the supplementary regulations herein. The provisions of Sections 635.100 through 635.160 shall not apply to any circumstance or entity in which application under such circumstances is preempted or otherwise precluded by superseding law.
[R.O. 1997 § 635.170; Ord. No. 705 § 4.1, 4-23-2001; Ord. No. 1490 § 4, 5-27-2008]
A provider shall be subject to and
comply with the additional or supplementary terms and conditions of
the ROW ordinance, as may be amended from time to time, which is incorporated
herein by reference and such provisions and the provisions of this
Code shall be deemed a condition of any franchise and agreement. The
provisions of this Article shall apply as provided herein to providers
and, to the full extent permitted by law, additionally to all construction
activities in public utility easements.
[R.O. 1997 § 635.180; Ord. No. 705 § 4.2, 4-23-2001; Ord. No. 1490 § 4, 5-27-2008]
A.
At least thirty (30) days before the beginning
of any installation, removal or relocation of its facilities, the
provider shall submit detailed plans of the proposed action to the
City Engineer. The City Engineer shall, within thirty (30) days of
receipt of such plans, either approve the plans or inform the provider
of the reasons for disapproval. The provider shall designate a responsible
contact person with whom representatives of the City Engineer can
communicate with on all matters relating to facilities installation
and maintenance.
B.
Prior to any excavation within the rights-of-way,
the provider shall obtain a permit, pay all applicable fees and perform
such work in accordance with applicable provisions of the City ROW
ordinance and any subsequent ordinances or regulations that may be
adopted by the City regarding excavation work.
C.
The provider shall post a bond with the
City in accordance with the City's ordinances in an amount determined
by the City Engineer to guarantee the timeliness and quality of any
construction, repair and restoration work, including damage to public
or private property, and to guarantee the removal of its facilities
from the City's rights-of-way should such removal be required upon
the expiration of an agreement.
D.
Prior to the commencement of any construction
or alteration of its facilities located in the rights-of-way, the
provider shall furnish to the City Engineer a subsurface utility engineering
study on the proposed route of construction, expansion or alteration,
which shall consist of the following tasks:
1.
All available plans, plats and other
location data indicating the existence and approximate location of
all facilities along the proposed construction route;
2.
Completion of a visual survey and
written record of the location and dimensions of any above ground
features of any underground facilities along the proposed construction
route, including, but not limited to, manholes, valve boxes, utility
boxes, posts and visible street cut repairs;
4.
Provide all such data collected into
a CADD file (or other format as may be identified by the City Engineer)
compatible with that used by the City Engineer and deliver a copy
to the City Engineer.
[R.O. 1997 § 635.190; Ord. No. 705 § 4.3, 4-23-2001; Ord. No. 1490 § 4, 5-27-2008]
Each licensee or franchisee shall
maintain and file with the City updated maps, in such form as may
be required by the City Engineer, providing the location and sufficient
detail of all facilities existing in the rights-of-way on the effective
date of any agreement or franchise, and those reasonably anticipated
to be installed in each six-month period subsequent to the initial
and updated filing, and such other related information as required
by the City Engineer. Such maps shall be updated and kept current
with the City.
[R.O. 1997 § 635.200; Ord. No. 705 § 4.4, 4-23-2001; Ord. No. 1490 § 4, 5-27-2008]
Provider shall construct and maintain
its facilities so as not to interfere with other users of the rights-of-way.
Except as may otherwise be provided, the provider shall, prior to
commencement of work, execute a City-approved resident-notification
plan to notify residents affected by the proposed work. All construction
and maintenance by provider or its subcontractors shall be performed
in accordance with industry standards.
[R.O. 1997 § 635.210; Ord. No. 705 § 4.5, 4-23-2001; Ord. No. 1490 § 4, 5-27-2008]
Provider shall not place or cause
to be placed any sort of signs, advertisements or other extraneous
markings, whether relating to provider or any other person or entity
on the public right-of-way, except such necessary minimal markings
as approved by the City as are reasonably necessary to identify the
facilities for service, repair, maintenance or emergency purposes
or as may be otherwise required to be affixed by applicable law or
regulation.
[R.O. 1997 § 635.220; Ord. No. 705 § 4.6, 4-23-2001; Ord. No. 1490 § 4, 5-27-2008]
Unless otherwise approved in writing
by the City in the attachment, installation, removal, reattachment,
reinstallation, relocation or replacement or otherwise of the facilities,
provider shall neither remove, cut, nor damage any trees or their
roots in and along the streets, alleys and public places of the City.
Tree trimming and pruning may be permitted to occur only after prior
written notice to the City of the extent of trimming and pruning to
be performed and the prior written approval thereof by the City. The
type and extent of trimming and pruning shall be in accordance with
the requirements of the City.
[R.O. 1997 § 635.230; Ord. No. 705 § 4.7, 4-23-2001; Ord. No. 1490 § 4, 5-27-2008]
Prior to its installation of any
facilities in the rights-of-way and after it provides the City with
its proposed plans for the facilities, the City may in its discretion
designate certain locations or facilities in the rights-of-way to
be excluded from use by provider for its facilities, including, but
not limited to, ornamental or similar specially designed street lights
or other facilities or locations which in the reasonable judgment
of the City Engineer do not have electrical service adequate or appropriate
for the provider's facilities or cannot safely bear the weight or
wind loading thereof, or any other facility or location that in the
reasonable judgment of the City Engineer is incompatible with the
proposed facilities or would be rendered unsafe or unstable by the
installation. The City Engineer may further exclude certain other
facilities that have been designated or planned for other use or are
not otherwise available for use by provider due to engineering, technological,
proprietary, legal, or other limitations or restrictions as may be
reasonably determined by the City. In the event such exclusions conflict
with the reasonable requirements of the provider, the City will cooperate
in good faith with provider to attempt to find suitable alternatives,
if available, provided that the City shall not be required to incur
financial cost nor require the City to acquire new locations for provider.
[R.O. 1997 § 635.240; Ord. No. 705 § 4.8, 4-23-2001; Ord. No. 1490 § 4, 5-27-2008]
The design, location and nature of
all facilities shall be subject to the review and approval of the
City Engineer. Such review shall be based on non-discriminatory bases
in application of City policy and approvals shall not be unreasonably
withheld. Except as provided herein, all facilities constructed after
the date of an agreement shall be placed underground, and in conduit,
where capable. Antenna or other facilities may be located above ground
only if approved by the City Engineer for good cause and including
as may be specifically authorized in an exhibit to the use agreement.
Unless extraordinary circumstances exist, good cause shall not include
authorization for above ground facilities requiring new poles or major
modification to existing above ground structures. Above ground pedestals,
vaults, antennae or other facilities may be installed only if approved
by the City where alternative underground facilities are not feasible
or where underground requirements are otherwise waived pursuant to
the provisions of this Section. Existing conduit shall be used where
feasible and available. The location, design and requirements for
antennae in the rights-of-way shall additionally be subject to all
specific ordinances, regulations or policies of the City generally
applicable to the siting of antennae. Where reasonable and appropriate
and where adequate public rights-of-way exists, the provider shall
place above ground facilities underground in conjunction with City
capital improvement projects and/or at specific locations requested
by the City provided that such placement is practical, efficient and
economically feasible. Unless specifically authorized herein or otherwise
by the City, antennae/towers having a height of forty (40) feet or
greater located on the rights-of-way or antennae on other City-owned
or controlled property shall not be authorized by an agreement but
shall require a separate lease or use agreement with the City. City
height limitations, applicable zoning restrictions, and general City
policies with regard to all users of the rights-of-way shall also
be applicable to all facilities. The City Engineer may establish such
regulations or policies as may be deemed necessary or appropriate
to effect this provision.
[R.O. 1997 § 635.250; Ord. No. 705 § 4.9, 4-23-2001; Ord. No. 1490 § 4, 5-27-2008]
Provider shall, prior to any excavation
or installation within the rights-of-way, provide sufficient notification
and joint installation opportunity on a shared-cost basis to potential
users of the rights-of-way as may be provided for by separate City
policy. Such notification and adopted policies shall be designed to
maximize collocation of providers to minimize the disturbance to the
rights-of-way and maximize its usable capacity. Provider shall not
install new conduit or other facilities in the rights-of-way where
existing conduit is available to provider that would reasonably avoid
the need for new excavation or overhead installations. Provider shall
identify by mapping, as required by the City Engineer, the location
and specifications of all conduit available or dedicated for collocation.
Any person unreasonably failing to respond to collocation opportunities
or otherwise comply with this provision or policies adopted hereunder
shall, unless good cause is found by the City, be precluded from use
of the rights-of-way for a period of thirty (30) months at such locations
that would reasonably have been accommodated by the collocation opportunity
that was declined.
[R.O. 1997 § 635.260; Ord. No. 705 § 4.10, 4-23-2001; Ord. No. 1490 § 4, 5-27-2008]
If any provider chooses to make its
facilities physically available for use by any other provider, it
shall do so only under terms that are fair and reasonable, competitively
neutral and non-discriminatory, and which do not prohibit or have
the effect of prohibiting the ability of any entity to provide any
interstate or intrastate telecommunications service under the circumstances.
Provider shall further comply with the facilities attachment requirements
of Federal law codified at 47 U.S.C. § 224.
[R.O. 1997 § 635.270; Ord. No. 705 § 4.11, 4-23-2001; Ord. No. 1490 § 4, 5-27-2008]
When provider installs any new conduit,
the provider shall simultaneously install sufficient additional conduit
or other related facilities (excess conduit) as may be determined
by the City Engineer and in order to reasonably meet the needs of
existing and future users of the rights-of-way. The criteria for when
such conduit will be required, the amount of conduit to be required,
management and ownership of the excess conduit and financing of the
excess conduit and related matters shall be established by a separate
City policy. Such policy shall be publicly available and each agreement
shall be deemed subject to such applicable policies adopted or as
may be amended. The excess conduit shall be designed and installed
in accordance with City specifications. The City may reserve for its
own purposes a portion of any excess conduit dedicated to the City
but shall make available any portion not so reserved to any and all
subsequent providers (or others as determined by the City) on a non-discriminatory
basis for fair and reasonable compensation that shall be paid in addition
to the franchise or use fees. When sections of provider's conduit
is installed simultaneously with another provider, the cost of such
sections of excess conduit shall also be cost shared among each provider
as may be established by policy. The requirements herein shall be
administered and applied so as not to create an obstacle to entry
in the market and on a competitively neutral and non-discriminatory
basis to maximize the available space in the rights-of-way and designed
to minimize the total number of excavations and cost of total communications
infrastructure installation. No linear foot charge shall apply to
any excess conduit installed by provider and dedicated to the City.
[R.O. 1997 § 635.280; Ord. No. 705 § 4.12, 4-23-2001; Ord. No. 1490 § 4, 5-27-2008]
Upon expiration of an agreement,
whether by lapse of time, by agreement between the provider and the
City, or by forfeiture thereof, the provider shall remove, at its
sole cost, from public property any and all of its facilities that
are the subject of an agreement within a reasonable time after such
expiration, not to exceed ninety (90) days, and it shall be the duty
of provider immediately upon such removal to restore the right-of-way
from which the facilities are removed to as good condition as the
same were before the removal was effected and as required by the City.
Provider shall further, unless otherwise consented to by the City,
remove all facilities that have not been used for a period of more
than one (1) year. Notwithstanding the foregoing, upon request of
provider, the City may allow underground facilities to be left in
place when it is not practical or desirable to require removal.
[R.O. 1997 § 635.290; Ord. No. 705 § 4.13, 4-23-2001; Ord. No. 1490 § 4, 5-27-2008]
Whenever the City shall in its exercise
of the public interest request of the provider the relocation or reinstallation
of any of its facilities, provider shall forthwith remove, relocate
or reinstall any such property as may be reasonably necessary to meet
the request and the cost of such relocation, removal or reinstallation
of the facilities shall be the exclusive obligation of said provider.
Provider shall upon request of any other person requesting relocation
of facilities and holding a validly issued building or moving permit
of the City, and within forty-eight (48) hours prior to the date upon
which said person intends to exercise its rights under said permit,
provider shall thereupon temporarily raise, lower or relocate its
wires or other facilities as may be required for the person to exercise
the rights under the permit and provider may require such permit holder
to make payment in advance for any expenses incurred by said provider
pursuant to said person's request.
[R.O. 1997 § 635.300; Ord. No. 705 § 4.14, 4-23-2001; Ord. No. 1490 § 4, 5-27-2008]
The provider shall have no remedy
or recourse whatsoever against the City for any loss, cost, expense
or damage arising from any of the provisions or requirements of any
agreement or because of the enforcement thereof by said City or for
the failure of said City to have the authority to grant all or any
part of the herein granted; provided that said provider expressly
acknowledges that it accepted the rights herein granted in reliance
upon its independent and personal investigation and understanding
of the power of authority of said City to enter into the agreement
herein with provider; provided further, that the provider acknowledges
by its acceptance of said agreement that it has not been induced to
enter into an agreement upon any understanding or promise whether
given verbally or in writing by or on behalf of said City or by any
other person concerning any term or condition of an agreement not
expressed herein; provided further, that the provider acknowledges
by the acceptance of an agreement that it has carefully read the provisions,
terms and conditions hereof and is willing to and does accept all
of the risk attendant to said provisions, terms and conditions. Nothing
herein shall preclude provider from seeking injunctive or declaratory
judgment relief against the City where such relief is otherwise available
and the requirements therefor are otherwise satisfied; provided, however,
that the validity of an executed agreement shall not be subject to
challenge.
[R.O. 1997 § 635.310; Ord. No. 705 § 4.15, 4-23-2001; Ord. No. 1490 § 4, 5-27-2008]
The provider shall be responsible
for all reasonable costs borne by the City that are directly associated
with provider's installation, maintenance, repair, operation, use
and replacement of its facilities within the rights-of-way that are
not otherwise accounted for as part of the permit fee established
pursuant to the ROW ordinance. All such costs shall be itemized and
the City's books and records related to these costs shall be made
available upon request to the provider. Provider shall be responsible
for its own costs incurred removing or relocating its facilities when
required by the City due to City requirements relating to maintenance
and use of the rights-of-way for City purposes.
[R.O. 1997 § 635.320; Ord. No. 705 § 4.16, 4-23-2001; Ord. No. 1490 § 4, 5-27-2008]
During the term of an agreement,
the provider shall obtain and maintain at the provider's sole expense
all insurance and bonds required by the ROW ordinance or applicable
agreement or franchise, but not less than the then current liability
limitations for political subdivisions as set forth in Section 537.610,
RSMo. Nothing contained in this Code shall limit the provider's liability
to the City to the limits of insurance certified or carried nor shall
anything herein or in any franchise or agreement be deemed a waiver
of the City's sovereign immunity.
