CHAPTER XII. PUBLIC PROPERTYCHAPTER XII. PUBLIC PROPERTY\ARTICLE 3. RIGHT-OF-WAY MANAGEMENT

(a)   “Public right-of-way” means only the area of real property in which the city has a dedicated or acquired right-of-way interest in the real property. It shall include the area on, below or above the present and future streets, alleys, avenues, roads, highways, parkways or boulevards dedicated or acquired as right-of-way. The term “Public right-of-way” does not include the airwaves above a right-of-way with regard to wireless telecommunications or other nonwire telecommunications or broadcast service, easements obtained by or for utilities or private easements in platted subdivisions or tracts.

(b)   “Occupant” means any person, firm, corporation, association, utility or entity, which enters upon the right-of-way of the City, or in any manner establishes a physical presence along, across, under, on, upon, in or over the right-of-way of the City, for the purpose of installation, construction, maintenance or operate lines, conduits, wires, fiber optic wires, cables, pipes, pipelines, poles, towers, sheds, conduit, ducts, pedestals, conduit facilities, antennas, transmitters, gates, meters, solar cells, vaults, appliances, switches, or related facilities or appurtenances thereto, all of which shall be collectively known as “Occupant Facilities.” The term “Occupant” shall mean the owner of a facility located along, across, under, on, upon, in or over the right-of-way of the City, and shall also include, when applicable, the definition of the term “provider,” as that term is defined in K.S.A. 17-1902(a)(2).

(Ord. 135-2006; Code 2013)

(a)   No person, firm, corporation, association, utility, or entity shall enter upon the public right-of-way of the City, or in any manner establish a physical presence along, across, under on, upon, in or over the public right-of-way of the City, for the purpose of installing, constructing, maintaining or operating any Occupant Facilities or related facilities, equipment or appurtenances thereto, without the express written permission of the City. The permission of the City may be granted by a franchise agreement pursuant to the provisions of K.S.A. 12-2001, et seq., or by such other agreement as the governing body determines best protects the public interest in the public right-of-way.

(b)   Nothing in this ordinance shall be interpreted as granting an Occupant the authority to construct, maintain or operate any facility or related appurtenance on property owned by a city outside of the public right-of-way or outside of the boundaries of the City.

(c)   The city shall process each valid and administratively complete application for use of the right-of-way within 30 days.

(Ord. 135-2006; Code 2013)

The authority of an Occupant to use and occupy the public right-of-way shall always be subject and subordinate to the reasonable public health, safety and welfare requirements and regulations of the City.

(Ord. 135-2006; Code 2013)

(a)   Pursuant to K.S.A. 17-1902(e), the City hereby prohibits the use or occupation of the following specific portions of public right-of-way, to-wit:

(1)   That portion of a public right-of-way for which the applicant seeks use or occupancy thereof where the prohibition of use or occupation by the City is based upon a recommendation of the City Engineer and is based related to public health, safety and welfare;

(2)   That portion of a public right-of-way for which the applicant seeks use or occupancy thereof when the applicant has rejected a reasonable, competitively neutral and nondiscriminatory justification offered by the City for requiring an alternate method or alternate route that will result in neither unreasonable additional installation expenses nor a diminution of service quality;

(3)   That portion of a public right-of-way that the City prohibits the use or occupation thereof, after affording the Applicant reasonable notice and the opportunity to be heard, on the basis that it is necessary to do so to protect the public health and safety; or

(4)   That portion of a public right-of-way for which the applicant seeks use and occupancy that is environmentally sensitive as defined by state or federal law or that lies in a previously designated historic district as defined by local, state or federal law;

(b)   If the City denies a request to use or· occupy a specific portion of the public right-of-way, the applicant of such request shall be served a notice of such denial by first class mail to the address stated in the applicant’s application, which notice shall state that the applicant shall have 10 days from the date of receipt of the notice to request a public hearing before the City Commission concerning the denial. Failure to make a timely request for a hearing shall constitute a waiver of the person’s right to contest the denial before the City Commission. The hearing shall be held by the City Commission within thirty (30) days after the filing of the request therefore by the applicant, and the applicant shall be advised by the City of the time and place of the hearing. If, following the hearing, the City denies the applicant’s request to use or occupy a specific portion of the public right-of-way, such determination may be appealed to district court.

(Ord. 135-2006; Code 2013)

Any Occupant of the public right-of-way shall comply with the provisions of Standards and Guides for Traffic Controls for Street and Highway Construction, Maintenance, Utility, and Incident Management Operations Part VI of the Manual of Uniform Traffic Control Devices (MUTCD), published by the U.S. Department of Transportation, Federal Highway Administration, 1988 Edition, Revision 3, dated September 3, 1993, which is incorporated herein by reference as if fully set forth herein.

(Ord. 135-2006; Code 2013)

(a)   The City imposes upon all Occupants the following requirements:

(1)   All Occupants shall at all times provide to the city clerk, and maintain, Occupants current full name, current street address of its principal place of business, telephone number and facsimile number.

(2)   Provide notice to the city clerk within 60 days of its change in name, change of the street address of its principal place of business, name and address of the purchaser of Occupants of a substantial portion of the assets of Occupant used in connection with the application for use or occupancy of a portion of the City’s public right-of-way.

(Ord. 135-2006; Code 2013)

If there is an emergency necessitating response work or repair, any person, firm, corporation, association, utility, or entity which has been granted permission to occupy the public right-of-way may begin that repair or emergency response work or take any action required under the circumstances, provided that the person, firm, corporation, association, utility, or entity notifies the city promptly after beginning the work and timely thereafter meets any permit or other requirement had there not been such an emergency.

(Ord. 135-2006; Code 2013)

Any Occupant of the public right-of-way is hereby required to repair all damage to a public right-of-way caused by the activities of that Occupant, or of any agent affiliate, employee, or subcontractor of that Occupant, while occupying, installing, repairing or maintaining facilities in a public right-of-way and to return the right-of-way, to its functional equivalence before the damage pursuant to the reasonable requirements and specifications of the city. If the Occupant fails to make the repairs required by the city, the city may effect those repairs and charge the Occupant the cost of those repairs.

(Ord. 135-2006; Code 2013)

Whenever requested by the city, in order to accomplish construction and maintenance activities directly related to improvements for the health, safety and welfare of the public, an Occupant promptly shall remove its facilities from the public right-of-way or shall relocate or adjust its facilities within the public right-of-way at no cost to the political subdivision. Such relocation or adjustment shall be completed as soon as reasonably possible within the time set forth in any request by the city for such relocation or adjustment. Any damages suffered by the city or its contractors as a result of such Occupant’s failure to timely relocate or adjust its facilities shall be borne by such Occupant.

(Ord. 135-2006; Code 2013)

The following fees shall be assessed against Occupants of the public right-of-way:

(a)   A permit fee of $ 750.00 plus a copy of current liability insurance and completion of work application;

(b)   An inspection fee of $50.00;

(c)   Repair and restoration costs associated with repairing and restoring the public right-of-way because of damage caused by the occupant/provider, its assigns, contractors, and/or subcontractors in the right-of-way; and

(d)   A performance bond, in a form acceptable to the city, from a surety licensed to conduct surety business in the state of Kansas, insuring appropriate and timely performance in the construction and maintenance of facilities located in the public right-of-way.

(Ord. 135-2006; Code 2013)

(a)   Occupants shall indemnify and hold the City and its officers and employees harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees (including reasonable attorney fees and costs of defense), proceedings, actions, demands, causes of action, liability and suits of any kind of nature, including personal or bodily injury (including death), property damage or other harm for which recovery of damages is sought, to the extent that it is found by a court of competent jurisdiction to be caused by the negligence of the Occupant, any agent, officer, director, representative, employee, affiliate or subcontractor of the Occupant, or their respective officers, agents, employees, directors or representatives, while installing, repairing or maintaining facilities in a public right-of-way.

(b)   The indemnity provided by this subsection does not apply to any liability resulting from the negligence of the City, its officers, employees, contractors of subcontractors. If an Occupant and the City are found jointly liable by a court of competent jurisdiction, liability shall be apportioned comparatively in accordance with the laws of this state without, however, waiving any governmental immunity available to the city under state law and without waiving any defenses of the parties under state of federal law .

(c)   This section is solely for the benefit of the City and Occupant and does not create or grant any rights, contractual or otherwise, to any other person or entity.

(Ord. 135-2006; Code 2013)

An Occupant shall promptly advise the City in writing of any known claim or demand against the Occupant and/or the City related to or arising out of the Occupant’s activities in a public right-of-way or upon other real property owned by the City.

(Ord. 135-2006; Code 2013)

(a)   An Occupant owning abandon facilities in the public right-of-way must either:

(1)   Remove such facilities and shall pay all repair and restoration costs associated with repairing and restoring the public right-of-way, as well as that to the facilities of other Occupants, because of damage caused by the Occupant, its assigns, contractors and/or subcontractors in the right-of-way sustained by the removal of such facilities. Upon written application by the Occupant, the City may allow underground facilities or portions thereof to remain in place if it determines that it is in the best interest of public safety to do so. The Occupant shall pay all of the City’s costs and expenses, including expert reports and fees, incurred in any such determination. If the City determines that the underground facilities or any portion thereof may remain in place, the City may take ownership and responsibility of such facilities left in place.; or

(2)   Provide information satisfactory to the City that the Occupant’s obligations for its Occupant Facilities, or any portion thereof, in the public right-of-way have been lawfully assumed by another authorized Occupant; or

(3)   Submit to the City a proposal and instruments for transferring ownership of its Occupant Facilities, or any portion thereof, to the City. If the Occupant proceeds under this subsection, the City may, at its option, purchase the Occupant Facilities or the portion thereof subject to the proposed transfer, require the Occupant at the Occupant’s own expense to remove the Occupant Facilities or the portion thereof subject to the proposed transfer, or require the Occupant to post a bond in an amount sufficient to reimburse the City for reasonable anticipated costs and damages expected to be incurred in removal of such facilities.

(b)   The Occupant Facilities of an Occupant who fails to comply with this section, and whose facilities remain unused for two (2) years, shall be deemed to be abandoned after the City has made a good faith effort to the Occupant, unless the City receives that the Occupant intends to use the facilities. Abandoned Facilities are deemed to be a nuisance. The City may exercise any remedies or rights it has at law or in equity, including, but not limited to, (a) abating the nuisance, (b) taking possession and ownership of the Abandoned Facilities and restoring it to a useable function, or (c) requiring the removal of the Abandon Facility by the Occupant.

(Ord. 135-2006; Code 2013)

(a)   Any person, firm, corporation, association, utility, or entity, or agent, contractor or subcontractor thereof, violating any provision of this article, shall be guilty of a municipal offense, and shall upon conviction be subject to a maximum fine of $500.00. Each day of violation shall constitute a separate and distinct offense.

(b)   The violation of any provision of this article is hereby deemed to be grounds for revocation of the permit or right under a contract agreement authorizing the use and occupancy of the City’s public right-of-way granted under this ordinance or any applicable contract agreement.

(c)   The City shall have the authority to maintain civil suits or actions in any court of competent jurisdiction for the purposes of enforcing the provisions of this article. In addition to any other remedies, the City Attorney may institute injunctive relief, mandamus or other appropriate action or proceeding to prevent violations of this article.

(Ord. 135-2006; Code 2013)