[Ord. No. 1006 §1, 11-22-2000]
For purposes of this Article, the following words and phrases
shall have the meaning given herein:
AFFILIATE
Any person controlling, controlled by or under the common
control of a service provider.
CITY
The City of Mission, Kansas, and any duly authorized representative.
DAY
Calendar day unless otherwise specified.
FCC
Federal Communications Commission.
FACILITY
Lines, pipes, wires, cables, conduits, poles, towers, vaults,
pedestals, boxes, appliances, antennas, transmitters, gates, meters,
appurtenances or other equipment owned by the service providers or
affiliates thereof.
KCC
The Kansas Corporation Commission.
LICENSE
Any agreement between a person and the City authorizing the
use of any portion the right-of-way.
PERSON
Any natural or corporate person, business association or
business entity including, but not limited to, a partnership, a sole
proprietorship, a political subdivision, a public or private agency
of any kind, a utility, a successor or assign of any of the foregoing,
or any other legal entity.
PRIVATE EASEMENT
Any easement or license to use real estate that is not right-of-way
or is given to a specific person.
PUBLIC IMPROVEMENT
Any existing or contemplated public facility, building or
project by the City or any other governmental entity, including without
limitation streets, alleys, avenues, roads, boulevards, easements
or other public lands.
PUBLIC LANDS
Any real property, including structures, developments and
improvements thereon, of the City or of any other governmental entity
located in the City that is not right-of-way.
PUBLIC PROJECT
Any project planned or undertaken by the City or any other
governmental entity for construction, reconstruction, maintenance
or repair of public facilities, any public improvement or any other
purpose of a public nature.
RIGHT-OF-WAY
The area on, below or above the present and future streets,
alleys, avenues, roads, boulevards, easements or other public lands,
including easements dedicated for City use or the assignment of use
by the City, in plats of the City of Mission, Kansas, but not including
the airwaves above.
SERVICE PROVIDER OR FRANCHISEE
Any person that is a provider of a commodity for a fee or
without fee using the right-of-way, their successors and assigns that
has requisite certifications and authorizations from applicable "governmental
entities", including, but not limited to, the City, the "KCC" and
the "FCC", to provide such commodity.
[Ord. No. 1006 §2, 11-22-2000]
A. It
is the policy of the City to authorize any service provider to utilize
the right-of-way in a competitively neutral, non-discriminatory basis
in a manner that maximizes the use of and conserves the right-of-way
and minimizes the burden on the right-of-way, physically and aesthetically.
Any use of the right-of-way by a service provider shall be subject
to the terms and conditions hereof in addition to other applicable
Federal, State or local requirements.
B. The
service provider shall be subject to all rules, regulations, policies,
resolutions and ordinances now or hereafter adopted or promulgated
by the City in the reasonable exercise of its Police power and is
subject to all applicable laws, orders, rules and regulations adopted
by governmental bodies now or hereafter having jurisdiction. In addition,
the service provider shall be subject to all technical specifications,
design criteria, policies, resolutions and ordinances now or hereafter
adopted or promulgated by the City relating to permits and fees, sidewalk
and pavement cuts, utility location, construction coordination, surface
restoration, and other requirements on the use of the right-of-way.
C. In order to minimize entry into the City's rights-of-way and to minimize disruption to City facilities, the facilities of others using the rights-of-way and to the citizens of the City, the City has adopted the "Joint Installation Notification", "Excess Conduit" and "Box and Pedestal Construction" policies as enumerated in Section
520.070 of this Article.
D. The
rights granted to the service provider to use the public right-of-way
shall be for the sole use of the service provider. No other party
may use the service provider's right, unless authorized by the City.
Service providers use is limited to the use that the service provider
has filed with the City in accordance with this Article.
[Ord. No. 1006 §3, 11-22-2000]
The City Clerk is the principal City Official responsible for
administration of the registering and licensing of a service provider.
The City Clerk may delegate any or all of the duties hereunder.
[Ord. No. 1006 §4, 11-22-2000]
A. Each
service provider shall, prior to the earlier of commencement of construction
or commencement of service, register with the City on forms provided
by the City Clerk.
B. The
service provider shall report any changes in its registration information
within thirty (30) days.
C. Any
existing service providers must register within thirty (30) days of
the effect of this Article.
[Ord. No. 1006 §5, 11-22-2000]
A. A service
provider owning, possessing or operating facilities or providing service,
including interconnection with or using the network elements of another
service provider utilizing the right-of-way, in the City shall apply
for an annual license and submit a work plan for the subsequent two
(2) years to the City Clerk to utilize the right-of-way subject to
the requirements herein and subject to the same may construct, maintain,
extend, repair and operate their facilities in, through, under and
along the right-of-way.
B. Each
service provider shall, prior to the earlier of commencement of construction
or commencement of service, present to the City the name, address,
telephone number and fax number of a person familiar with the facilities
who is responsible for satisfying the information needs of the City
and other users of the right-of-way on forms issued by the City Clerk.
C. Prior to construction, reconstruction, repair, maintenance or relocation of any facilities owned by the service provider, the service provider shall first obtain the necessary right-of-way permit from the Public Works Director pursuant to Article
II of this Chapter
520.
D. Prior
to providing service to the City and its residents or installing facilities,
the service provider shall first obtain the necessary franchise agreement
from the City.
E. The
service provider shall furnish, at time of licensing, maps showing
the location, both horizontally and vertically, of all facilities
of the service provider within the City as provided hereafter.
F. The
service provider shall not sell, transfer, lease, assign, sublet or
dispose of its facilities or any portion thereof or any right, title
or interest in the same, or the transfer of any rights under this
license to any person either by forced or involuntary sale, or by
ordinary sale, consolidation or otherwise, without prior approval
of the City provided that such approval shall not be unreasonably
withheld and may be denied only upon a good faith finding by the City
that the proposed licensee lacks the legal, technical or financial
qualifications to perform its obligations under the license. Any attempt
to sell, transfer, lease, assign or otherwise dispose the license
or its system not conforming with the requirements of this Section
shall be null and void. This provision shall not apply to sale of
property or equipment in the normal course of business. No consent
from the City shall be required for a transfer in trust, mortgage,
or other instrument of hypothecation, in whole or in part, to secure
an indebtedness or for a pro forma transfer to a corporation, partnership
or other entity controlling, controlled by or under common control
with the licensee. Any violation of this Section shall enable the
City to revoke or modify the license.
[Ord. No. 1006 §6, 11-22-2000]
One dollar seventy-five cents ($1.75) per linear foot of four
(4) inch diameter (0.087 ft 2) pipe or conduit or as prescribed in
any franchise agreement the service provider may have in force with
the City.
[Ord. No. 1006 §7, 11-22-2000; Ord. No. 1306 §1, 10-21-2009]
A. The
service provider's use of the right-of-way shall in all matters be
subordinate to the City's use or occupation of the right-of-way. Without
limitation of its rights, the City expressly reserves the right to
exercise its governmental powers now and hereafter vested in or granted
to the City.
B. The
service provider shall coordinate the placement of facilities in a
manner which minimizes adverse impact on any public improvement, as
reasonably determined by the City. Where placement is not regulated,
the facilities shall be placed with adequate clearance from such public
improvements so as not to impact or be impacted by such public improvement
as defined in the City's Manual of Infrastructure Standards available
in the office of the Public Works Director.
C. Pursuant to Article
II of this Chapter, the service provider's facilities shall be located underground and shall comply with all ordinances of the City relating to underground service, unless such requirement is waived by the City.
D. All
facilities shall be located and laid so as not to obstruct or interfere
with any public or private water pipes, drains, sewers or other structures
or public improvements already installed. In addition, the service
provider shall, in doing work in connection with its said facilities,
avoid, so far as may be practicable, obstructing or interfering with
the lawful use of the streets, alleys, avenues, roads, easements or
other public places of the City.
E. All
facilities of the service provider shall be placed so that they do
not interfere with the use of right-of-way and public places by the
City. The City, through its Public Works Director, shall have the
right to consult and review the location, design and nature of the
facility prior to its being installed. The City shall limit its review
to matters pertaining to public safety and aesthetics and to what
extent adjoining property will be adversely affected.
F. The
service provider shall keep and maintain and provide to the City accurate
records and as-built drawings depicting accurate horizontal and vertical
location of all its facilities constructed, reconstructed, relocated
or abandoned in the right-of-way. Such information shall be provided
to the City in the form of a route map and as-built drawings of existing
or constructed facilities, electronically in an AutoCAD format compatible
with the City's Geographical Information Systems (GIS) and Johnson
County Automated Integrated Mapping Systems (AIMS) showing and describing
the exact locations, both horizontal and vertical, of all facilities
constructed and existing. Underground facilities shall be differentiated
from overhead facilities.
G. The
service provider shall cooperate promptly and fully with the City
and take all reasonable measures necessary to provide accurate and
complete on-site information regarding the nature and horizontal and
vertical location of its facilities located within the right-of-way
or private easements, both underground and overhead, when requested
by the City or its authorized agent for a public project. Such location
and identification shall be at the sole expense of the service provider
without any expense to the City, its employees, agents or authorized
contractors. The service provider shall designate and maintain a local
affiliate familiar with the facilities, who is responsible for satisfying
information needs of the City and other users of the right-of-ways.
H. The
ROW user shall promptly remove, relocate or adjust any facilities
located in the right-of-way as directed by the City for a public improvement
or when reasonably required by the City by reason of public health,
safety and welfare. Such removal, relocation or adjustment shall be
performed by the ROW user at the ROW user's sole expense without expense
to the City, its employees, agents or authorized contractors and shall
be specifically subject to rules, regulations and schedules of the
City pertaining to such. The ROW user shall proceed with relocations
at due diligence upon notice by the City to begin relocation.
The ROW user shall promptly remove, relocate or adjust any facilities
located in private easement as directed by the City for a public improvement
at City expense by moving such facilities to areas within the expanded
right-of-way or within remaining private easements or remaining portions
of such easements not condemned by nor disclaimed to the City to avoid
conflict with the City construction and improvements. The ROW user
shall disclaim those parts of its easements which lie within the expanded
right-of-way, the cost of any such future relocation shall be borne
by the City.
All newly constructed facilities shall be located underground
and the ROW user shall comply with all requirements of the City relating
to underground facilities. Exceptions to this rule are:
1. When otherwise specifically provided for in the City Code or Zoning
Regulations;
2. When such requirement is waived by the Planning Commission as part
of a development plan; or
3. When the Governing Body grants a special exception to this requirement
on a temporary or permanent basis on such terms deemed appropriate
in case of emergency, safety concerns, unusual circumstances or some
other good cause.
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In addition, in cases where temporary electrical power of communication
service is reasonably required for emergencies or for building construction
purposes, the City Administrator or his agent may grant special permission
for the temporary construction and use of poles, wires and other above
ground facilities for a period not to exceed one hundred twenty (120)
days; provided, in the event that resolving said emergency or completing
said construction cannot be concluded within said time period because
of a shortage of material, a natural disaster, strikes or other circumstances
beyond the control of the parties, or by unusual hardships, then the
time may be extended to an additional temporary period or periods
necessary to allow completion of such construction. When above ground
facilities are allowed pursuant to this Section, said facilities shall
be located only as directed by the City including, but not limited
to, requirements regarding location and height.
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I. It
shall be the responsibility of the service provider to take adequate
measures to protect and defend its facilities in the right-of-way
from harm and damage. The City shall not be liable for any damage
to or loss of any of the service provider's facilities within the
right-of-way or private easement as a result of or in connection with
any construction, excavation, grading, filling or work of any kind,
including public project or public improvement by or on the behalf
of the City, provided such damage is not directly or proximately caused
by the willful, intentional or malicious acts of the City. The service
provider shall be responsible to the City and its agents, representatives
and authorized contractors for all damages including, but not limited
to, delay of any kind arising out of the failure of the service provider
to perform any of its obligations under this Article unless the damaged
party is solely responsible for the harm or damage by its negligence
or intentionally caused harm. The City or its authorized contractors
shall be responsible to take reasonable precautionary measures including
calling for facility locations.
J. The
Public Works Director may grant permission to the service provider
to trim trees upon and overhanging right-of-way so as to prevent the
branches of such trees from coming in contact with the facilities
of the service provider upon review and approval of a plan and details
for trimming trees in the rights-of-way.
K. All
technical standards governing construction, reconstruction, installation,
operation, testing, use, maintenance, and dismantling of service provider's
facilities in the right-of-way shall be in accordance with applicable
Federal, State and local law and regulations, including those promulgated
by national trade associations commonly associated with the service
provided by the service provider. It is understood that the standards
established in this paragraph are minimum standards and the requirements
established or referenced in this Article may be in addition to or
stricter than such minimum standards.
L. Joint Installation Notification.
1. Prior to constructing any new or additional underground conduit or
above ground boxes or pedestals within the rights-of-way, a franchisee
shall certify in writing to the City Engineer that it has made appropriate
inquiry to all existing utilities and other entities possessing a
right to occupy the rights-of-way as to the availability of existing
or planned conduit or box or pedestal locations that the franchisee
could reasonably utilize to meet its needs, and that no such conduit
or box or pedestal locations are available or planned within the next
six (6) months.
2. All existing utilities, and entities granted a Franchise, with usable
conduit within the rights-of-way shall make such conduit available
to other franchisees consistent with the Federal requirements of Section
47 U.S.C. 224. All existing utilities and entities granted a Franchise
with box and pedestal locations shall, when feasible, accommodate
collocation of facilities of other franchisees. Each franchisee shall
provide mapping of all existing facilities and excess conduit except
as may be waived by the City Engineer as unnecessary or unduly burdensome.
All new facilities shall require sufficient mapping in hard copy and
electronic format.
3. Once the City Engineer has made the determination that no such conduit
or box or pedestal locations are available and has reviewed the plans
and provided preliminary approval of the location of the facilities,
the licensee (franchisee) must notify by registered mail all companies
on file with the City prior to being authorized to proceed with installation
of new conduit or boxes and pedestals (or overhead facilities if otherwise
permitted).
4. The franchisee shall comply with the following notification requirements:
a. The franchisee shall provide written notification by restricted mail,
postage prepaid, return receipt requested, of the proposed construction
activity and locations (whether by trenching, boring, overhead installation
or otherwise) to all other existing and potential users of the rights-of-way
as designated on a provider list approved by the City. The notice
shall invite all other firms to join with the franchisee in placing
their own conduit and laterals and boxes and pedestals in the noticed
locations on a cost-shared basis. The written notification shall contain
sufficient mapping and information as would be reasonably necessary
for potential users to assess the viability of joint installation.
The notice shall include a statement that the notification is pursuant
to this policy and shall include a copy of this policy. Such notices
shall disclose where the licensee (franchisee) intends to construct
conduit and contain a clear map of the proposed route or locations,
including all proposed lateral or connecting conduit to specific locations.
b. All companies notified shall have twenty-one (21) calendar days from
the receipt of such notification to indicate in writing to the City
and the franchisee as to whether they desire to jointly undertake
the construction of such conduit or otherwise co-locate their facilities
at such time. Any company electing to jointly construct or co-locate
its facilities with that of franchisee shall share in the pro rata
costs of such construction or joint installation of facilities. All
interested companies shall enter into a participant agreement and
shall designate a lead company, normally the licensee. The City shall
be given a copy of the participant agreement and will work with the
lead company in making all construction and location determinations,
in granting permits, in making inspections, and in all other matters
with regard to the construction of the joint underground facility.
All City policies, requirements, construction standards and ordinances
will apply to the project. The lead company shall be responsible for
maintenance and management of the joint facility. All such issues
and requirements shall be covered in the participant agreement.
5. A company that is invited to participate in a joint construction
project and decides not to participate may not enter the right-of-way
for the purpose of the construction of new facilities for a period
of five (5) years from the date of receipt of notification. This prohibition
does not apply to the repair of existing facilities or situations
determined by the City Engineer to be in the nature of an emergency,
or where good cause is determined by the City Engineer justifying
a failure by the company to respond and warranting new disturbance
contrary to timeframe established by this provision.
6. The City Engineer may limit the number of conduit that may be installed
by each provider to ensure that no one (1) provider unreasonably consumes
a disproportionate amount of the available rights-of-way. Unless space
considerations otherwise dictate, each location shall be presumed
to be capable of permitting each provider to install up to two (2)
four (4) inch conduits or their equivalent.
M. Excess Conduit Requirements.
1. Policy objectives. The City has determined that
the influx of users of the rights-of-way requires affirmative action
by the City to coordinate the users of the rights-of-way and to ensure
that there are sufficient underground facilities for future and existing
communications users. By requiring initial installers of facilities
to install additional conduit for use by other providers and the City,
the City desires to promote competition by available infrastructure,
maximize the useable space in the rights-of-way, lower cost to the
industry as a whole, reduce excavations, and most importantly maximize
safety by reducing the potential for excavation accidents.
2. When a franchisee installs any new conduit, the franchisee shall
at the request of the City Engineer install sufficient additional
conduit or other related facilities ("excess conduit") to meet the
City's planned infrastructure needs for the City and the expected
needs of other users of the rights-of-way. Such additional excess
conduit shall be required as provided for on a designated conduit
plan, if any, and additionally as determined based on the following
criteria:
a. All construction of underground conduit will require the construction
of additional conduit.
b. Excess conduit shall not be required for uses that are not technically
compatible or in locations or circumstances where the policy objectives
stated in this policy would not be served.
3. The City will normally require no more than one (1) four (4) inch
conduit as excess conduit unless the City Engineer determines by an
independent review or industry study that more than one (1) four (4)
inch conduit is required to accommodate projected future rights-of-way
use.
4. The additional conduit will be constructed and managed by licensee
(franchisee) or if this is a joint construction project by the lead
company. The additional conduit will be owned by the licensee (franchisee),
or in the case of joint construction the lead company, and will be
sold or leased to a licensee or franchisee wanting to locate facilities
in the right-of-way. The owner of the additional conduit will not
unreasonably withhold such conduit or unreasonably price such conduit.
An unreasonable price is one that substantially exceeds the pro rata
share of constructing and financing the underground facilities or
exceeds the cost of newly constructing such conduit. The City reserves
the right to review each situation and refer potential users of the
additional conduit to the owner. The owner of the conduit is obligated
to maintain the additional conduit in good and serviceable condition
and will notify the City of any inquiry regarding its possible use.
5. The cost of the additional conduit will be born by the licensee or,
in the case of a joint construction project, by all participants in
the project on a pro rata basis. The licensee, or in the case of a
joint construction project all participants, shall recoup their pro
rata share of costs and financing through the sale of additional conduit.
6. All of the terms and requirements for installation and maintenance
shall be set out in advance of construction and agreed to by all parties.
The City Engineer may adopt approved agreements, require mediation,
or may adopt other procedures or regulations to effect this policy
and to otherwise ensure the timely coordination of parties as to the
joint installation and or excess conduit.
N. Box And Pedestal Construction.
1. Policy objectives. The City has determined that
the influx of users of the rights-of-way requires affirmative action
by the City to coordinate the users of the rights-of-way and to ensure
that there are sufficient acceptable box and pedestal locations for
future and existing communications users. By requiring initial installers
of facilities to accommodate the use by other providers, the City
desires to promote competition by facilitating interconnections and
minimize the disruption to the rights-of-way and visual blight to
the community.
2. When a franchisee installs any new boxes or pedestals, the franchisee
shall provide to the City engineer the locations and descriptions
of all such proposed facilities and at the request of the City Engineer
shall install sufficient additional capacity or other related facilities
to meet the expected needs of other users of the rights-of-way.
O. The
service provider may permit and has authority to allow a third party,
including the service provider's subsidiary or affiliate, to occupy
or acquire rights to occupy the right-of-way or private easement under
this Article, provided however, the third party registers and obtains
the proper license from the City. The service provider shall notify
the City of the intended third party use. Nothing in this paragraph
shall prevent the service provider from providing to any third party
the use of the service provider's facilities in the rights-of-way.
P. In
case of failure on the part of the service provider to comply with
any of the provisions of this Article or applicable law, or should
service provider do or cause to be done any act or thing prohibited
by or in violation of the terms of this Article, the service provider
shall forfeit all rights and privileges granted under this Article
and all rights shall cease, terminate and become null and void, provided
that such forfeiture shall not take effect until the City shall provide
due process to the service provider.
Q. The
Public Works Director shall assign specific corridors within the right-of-way,
or any particular segment thereof as may be necessary, for each type
of facility that is or, pursuant to current technology, the Public
Works Director expects will someday be located within the right-of-way.
All right-of-way permits issued by the Public Works Director shall
indicate the proper corridor for the service provider's work. Any
service provider whose facilities are in the right-of-way in a position
at variance with the designated corridors shall, no later than at
the time of next reconstruction or excavation of the area where its
facilities are located, move the facilities to its assigned position
within the right-of-way, unless this agreement is waived by the Public
Works Director for good cause shown, upon consideration of such factors
as the remaining economic life of the facilities, public safety, user
service needs and hardship to the service provider.
[Ord. No. 1006 §8, 11-22-2000]
A. A service
provider who has determined to discontinue its operations in the City
must either:
1. Provide information satisfactory to the City Clerk that the service
provider's obligations for its facilities in the right-of-way have
been lawfully assumed by another service provider, or
2. Submit to the City Clerk a proposal and instruments for transferring
ownership of its facilities to the City. If a service provider proceeds
under this Section, the City may, at its option purchase the equipment,
require the service provider, at its own expense, to remove it, or
require the service provider to post a bond in an amount sufficient
to reimburse the City for reasonable anticipated costs to be incurred
to remove the facilities.
B. Facilities
of a service provider who fails to comply with this Section, and which
facilities for two (2) years remains unused, shall be deemed to be
abandoned. 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:
2. Taking possession of the facility and restoring it to a useable function;
or
3. Requiring the removal of the facility by the service provider.
[Ord. No. 1006 §9, 11-22-2000]
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.
[Ord. No. 1006 §10, 11-22-2000]
The City's failure to enforce or remedy any non-compliance of
the terms and conditions of this Article or of any license granted
thereunder shall not constitute a waiver of the City's rights nor
a waiver of any service provider's obligation as herein provided.
[Ord. No. 1006 §11, 11-22-2000]
A. The
violation of any provision of this Article is hereby declared to be
a public offense, and any person, firm, association, partnership or
corporation convicted thereof shall be punished by a fine provided
in the City of Mission Municipal Code.
B. The
violation of any provision of this Article is hereby deemed grounds
for revocation of the service provider's license.
[Ord. No. 1006 §12, 11-22-2000]
A. In
addition to any rights specifically reserved to the City by this Article,
the City reserves to itself every right and power which is required
to be reserved by a provision of any ordinance under any license granted
under this Article. The City shall have the right to waive any provision
of this Article or any license granted thereunder, except those required
by Federal or State law, if the City determines:
1. That it is in the public interest to do so, and
2. That the enforcement of such provision will impose an undue hardship
on the service provider. To be effective, such waiver shall be evidenced
by a statement in writing signed by a duly authorized representative
of the City Council.
[Ord. No. 1002 §1, 8-9-2000]
For purposes of this Article, the following words and phrases
shall have the meaning given herein:
APPLICANT
Any person requesting permission to excavate or obstruct
a right-of-way.
APWA
The Kansas City Metropolitan Chapter of the American Public
Works Association.
APWA SPECIFICATIONS
The most current version of the APWA Standard Specifications
and Design Criteria manual.
CITY
The City of Mission, Kansas, and any duly authorized representative.
CITY COST
The actual cost incurred by the City for right-of-way management
including, but not limited to, costs associated with registering applicants;
issuing, processing and verifying right-of-way permit applications;
inspecting job sites and restoration projects; maintaining, supporting,
protecting or moving user equipment during City right-of-way work;
determining the adequacy of right-of-way restoration; restoring work
inadequately performed; and revoking right-of-way permits and performing
all other tasks required by this Chapter, including other costs the
City may incur in managing the provisions of this Chapter.
DAY
Calendar day unless otherwise specified.
DEGRADATION
The accelerated depreciation of the right-of-way caused by
excavation in or disturbance of the right-of-way resulting in the
need to reconstruct such right-of-way earlier than would be required
if the excavation did not occur.
DEGRADATION COST
Money paid to the City to cover the cost associated with
a decrease in the useful life of a right-of-way caused by excavation.
DEPARTMENT
The Public Works Department of the City of Mission, Kansas.
EMERGENCY
A condition that:
1.
Poses a clear and immediate danger to life or health or of a
significant loss of property; or
2.
Requires immediate repair or replacement in order to restore
service to a user.
EXCAVATE
To dig into or in any way remove, physically disturb or penetrate
a part of a right-of-way or private easement.
FACILITY
Lines, pipes, wires, cables, conduits, poles, towers, vaults,
pedestals, boxes, appliances, antennas, transmitters, gates, meters,
appurtenances or other equipment used by the service providers.
FCC
Federal Communications Commission.
KCC
The Kansas Corporation Commission.
LICENSE
Any agreement between a person and the City authorizing the
use of any portion of the right-of-way.
OBSTRUCT
To place a tangible object in the right-of-way so as to hinder
free and open passage over that or any part of the right-of-way.
OBSTRUCTION COST
The penalty imposed as result of the adverse impact on the
citizens of the City who are required to alter travel routes and times
resulting from right-of-way obstructions.
OBSTRUCTION PERMIT
The permit which must be obtained before a person may obstruct
a right-of-way allowing the holder to hinder free and open passage
over the specified portion of that right-of-way.
PARKWAY
The area between a person's property line and the street
curb, sometimes called boulevard, tree shelf or snow shelf.
PAVEMENT
Includes Portland cement concrete pavement, asphalt concrete
pavement, asphalt treated road surfaces and any aggregate base material.
PERMITTEE
Any person to whom a permit to excavate or obstruct a right-of-way
has been granted by the City.
PERSON
Any natural or corporate person, business association or
business entity including, but not limited to, a partnership, a sole
proprietorship, a political subdivision, a public or private agency
of any kind, a utility, a successor or assign of any of the foregoing
or any other legal entity.
PRIVATE EASEMENT
Any easement or license to use real estate that is not right-of-way.
PUBLIC IMPROVEMENT
Any existing or contemplated capital improvement project
to and including, without limitation, streets, alleys, avenues, roads,
boulevards, easements or other public lands.
PUBLIC LANDS
Any real property, including structures, developments and
improvements thereon, of the City or of any other governmental entity
located in the City that is not a right-of-way.
PUBLIC PROJECT
Any project planned or undertaken by the City or any other
governmental entity for construction, reconstruction, maintenance
or repair of public facilities or any other public improvement or
any other purpose of a public nature.
PUBLIC WORKS DIRECTOR
The Director of the Public Works Department of the City of
Mission, Kansas, or the authorized representative.
REPAIR
The temporary construction work necessary to make the right-of-way
useable for use.
RESTORATION
The process by which an excavated right-of-way and surrounding
area, including pavement and foundation, is returned to the same condition
or better that existed before the commencement of the work.
RIGHT-OF-WAY
The area on, below or above the present and future streets,
alleys, avenues, roads, boulevards, easements or other public lands
including easements on private and public lands when such easements
are dedicated for City use in plats of the City of Mission, Kansas,
but not including the airwaves above.
RIGHT-OF-WAY PERMIT
A permit to perform work in a right-of-way, whether to excavate
or obstruct the right-of-way.
SERVICE
A commodity used by the public including, but not limited
to, gas, telephone, cable TV, alarm systems, steam, electric, water,
telegraph, data transmission, petroleum pipelines, sanitary sewerage
or drainage not for City use.
SERVICE PROVIDER
Any person, its successors and assigns that is a provider
of a commodity for a fee with requisite certifications and authorizations
from applicable governmental entities, including the KCC and the FCC,
to provide such service.
[Ord. No. 1002 §2, 8-9-2000]
A. The
purpose of the Article will be to regulate occupancy, obstructions
of and excavations in the right-of-way by providing, among other things,
for the issuance of permits granting authority to utilize and occupy
the right-of-way within the City.
B. The
permittee shall be subject to all rules, regulations, policies, resolutions
and ordinances now or hereafter adopted or promulgated by the City
in the reasonable exercise of its Police power and is subject to all
applicable laws orders, rules and regulations adopted by governmental
bodies now or hereafter having jurisdiction. In addition, the permittee
shall be subject to all technical specifications, design criteria,
policies, resolutions and ordinances now or hereafter adopted or promulgated
by the City relating to permits and fees, sidewalk and pavement cuts,
utility location, construction coordination, surface restoration and
other requirements on the use of the right-of-way.
[Ord. No. 1002 §3, 8-9-2000]
A. The
permittee shall, in the performance of any work required for the installation,
repair, maintenance, relocating and/or removing of any of its facilities,
limit all excavations to those excavations that are necessary for
efficient operation. The permittee shall not make any cut, excavation
or grading of right-of-way other than excavations necessary for emergency
repairs without first securing a permit and posting a bond as required
by City ordinance and, further, the permittee shall not at any one
time open or encumber more of right-of-way than shall be reasonably
necessary to enable the permittee to complete the project in the most
expeditious manner. The permittee shall not permit such an excavation
to remain open longer than is necessary to complete the excavation.
B. The
permittee shall notify the City no less than three (3) working days
in advance of any construction, reconstruction, repair, location or
relocation of facilities which would require any street closure which
reduces traffic flow to less than two (2) lanes of moving traffic.
Except in the event of an emergency as reasonably determined by the
permittee, no such closure shall take place without notice and prior
authorization from the City. The City shall follow its policies in
the granting or denial of such authority, which shall not be unreasonably
delayed. In addition, all work performed in the right-of-way or which
in any way impacts vehicular or pedestrian traffic shall be properly
signed, barricaded and otherwise protected. Such signage shall be
in conformance with the latest edition of the Federal Highway Administration's
Manual on Uniform Traffic Control Devices unless otherwise agreed
to by the City.
C. After
any excavation, the permittee shall, at its expense, restore all portions
of the right-of-way to the same condition or better condition than
it was prior to the excavation thereof. Following written notice to
the permittee, if the permittee fails to promptly restore the affected
portion of the right-of-way, the Public Works Director may make the
restoration in a manner satisfactory to the City. All costs incurred
for such restoration, whether completed by City work forces and equipment
or by contractors hired by the City, shall be paid by the permittee,
including the costs of any inspectors the City may assign to the project.
The City shall determine all costs associated with providing said
restoration and inspection and the permittee shall be responsible
for reimbursing the City for all of such reasonable costs. All excavations
shall be replaced with materials and in accordance with ordinances
and specifications as required by the City.
D. Whenever
there is an excavation by the permittee, the permittee shall be responsible
for providing adequate traffic control as determined by the Public
Works Director of the City. The permittee shall perform work on the
right-of-way at such times that will allow the least interference
with the normal flow of traffic.
E. All
facilities and other appurtenances laid, constructed and maintained
by the service provider shall be laid, constructed and maintained
in accordance with acceptable engineering practice and in full accord
with any and all applicable engineering codes adopted or approved
by the parties and in accordance with applicable Statutes of the State
of Kansas and the rules and regulations of the Kansas Corporation
Commission or any other local, State or Federal agency having jurisdiction
over the parties.
F. The
service provider shall keep, maintain and provide to the City accurate
records and as-built drawings depicting accurate horizontal and vertical
location of all its facilities which are constructed, reconstructed,
relocated or abandoned in the right-of-way. Such information shall
be provided to the City in the form of a route map and as-built drawings
of existing or constructed facilities in an electronic AutoCAD format
which is compatible with the City's Geographical Information Systems
(GIS) and Johnson County Automated Integrated Mapping Systems (AIMS).
Underground facilities shall be differentiated from overhead facilities.
G. Nothing
herein shall be construed to repeal or amend the provisions permitting
persons to maintain boulevard plantings or gardens. However, excavations
deeper than twelve (12) inches are subject to the right-of-way permit
process.
[Ord. No. 1002 §4, 8-9-2000]
The principal City Official responsible for administration of
right-of-way permits shall be the Public Works Director. The Public
Works Director may delegate any or all of the duties hereunder.
[Ord. No. 1002 §5, 8-9-2000]
Before receiving a permit, the permittee must show proof of
registration, license, insurance and franchise agreement.
[Ord. No. 1002 §6, 8-9-2000]
A. Except
as otherwise provided, no person may excavate or obstruct any right-of-way
without first having obtained the appropriate right-of-way permit.
Said person must abide by all local, State or Federal laws regarding
such work in easements of their own property. Said person shall assume
all liability for any such work.
B. A right-of-way
permit is required to excavate that specified portion of the right-of-way
as described in such permit and to obstruct free and open passage
over said portion of the right-of-way to the extent and for the duration
specified.
C. A right-of-way
permit is required for emergency situations. The permit shall be obtained
within one (1) working day.
D. No
person may excavate or obstruct the right-of-way beyond the date or
dates specified in the permit unless such person:
1. Makes a supplementary application for another right-of-way permit
before the expiration of the initial permit, and
2. A new permit or permit extension is granted.
E. Right-of-way
permits issued shall be conspicuously displayed at all times at the
indicated work site and shall be available for inspection by the Public
Works Director, other City employees and the public.
F. Prior
to the commencement of excavation, the permittee shall cause the perimeter
of the excavation and the identification of any buried facilities
to be spray painted according to the APWA specifications.
G. All
excavations shall have a metal marker inserted into the excavation-restored
pavement which shall identify the service provider.
[Ord. No. 1002 §7, 8-9-2000]
A. Application
for a right-of-way permit shall be submitted to the Public Works Director.
B. Right-of-way
permit applications shall contain, but not be limited to, the following
information: the permittee's name, address, insurance certificate,
bonds and work description for processing the right-of-way permit.
C. Right-of-way
applications shall contain and be considered complete only upon receipt
of the following:
1. Compliance with verification of registration and license with the
City Clerk;
2. Submission of a completed permit application form, including all
required attachments and scaled drawings showing the location and
area of the proposed project and the location of all existing and
proposed equipment;
3. Payment of all money due to the City for franchise fees, permit fees
and costs, for prior obstructions or excavation costs, for any loss,
damage or expense suffered by the City because of the applicant's
prior excavations or obstructions of the right-of-way or for any emergency
actions taken by the City.
D. The
permittee shall keep all right-of-way permit information current at
all times by providing the Public Works Director information as to
changes within fifteen (15) days following the date on which the permittee
has knowledge of any change.
[Ord. No. 1002 §8, 8-9-2000]
A. If
the Public Works Director determines that the applicant has satisfied
the requirements of this Chapter, the Public Works Director may issue
a right-of-way permit.
B. The
Public Works Director may impose reasonable conditions upon the issuance
of a right-of-way permit and the performance of the applicant thereunder
in order to protect the public health, safety and welfare, to ensure
the structural integrity of the right-of-way, to protect the property
and safety of the other users of the right-of-way, and to minimize
the obstruction and inconvenience to the traveling public.
C. When
a right-of-way permit is requested for purposes of installing additional
facilities and the posting of a restoration bond for the additional
facilities is insufficient, the posting of an additional or larger
restoration bond for the additional facilities may be required.
D. Issued
permits are not transferable.
[Ord. No. 1002 §9, 8-9-2000]
A. The
right-of-way permit fee will be recommended by the Public Works Director,
approved by the City Council and listed in the schedule of fees maintained
in the City Clerk's office.
B. The
right-of-way permit fee shall include, but not be limited to, the
following:
1. Administrative costs associated with: the registration of applicants;
issuing, processing and verifying right-of-way permit applications;
inspecting job sites and restoration projects; determining the adequacy
of right-of-way restoration; and revoking right-of-way permits; and
performing all other tasks required by this Chapter, including other
costs the City may incur during the course of managing the provisions
of this Chapter; and/or
2. Degradation costs associated with a decrease in the useful life of
the right-of-way as caused by excavation; and/or
3. Obstruction costs associated with placement of a tangible object
in the right-of-way so as to hinder free and open passage over that
or any part of the right-of-way.
C. No
right-of-way permit shall be issued prior to the payment of such fees.
D. Fees
paid for a permit, which is subsequently revoked by the Public Works
Director for a breach of this Chapter, are not refundable.
[Ord. No. 1002 §10, 8-9-2000]
A. The
permittee shall provide a performance bond and liability insurance
certificate as dictated in the APWA specifications.
B. No
performance bond or liability insurance certificate will be required
of any governmental utility or of any residential property that does
not utilize a contractor to perform the excavation.
[Ord. No. 1002 §11, 8-9-2000]
A. The
work to be done under the right-of-way permit and the repair and restoration
of the right-of-way as required herein must be completed within the
dates specified in the permit. However, in the event of extraordinary
circumstances beyond the control of the permittee or when work was
prohibited by unseasonable or unreasonable conditions, the Public
Works Director may increase the dates for completion of the project
by as many days as work was delayed.
B. All
backfilling and restoration work will be conducted in accordance with
the APWA specifications.
C. In
addition to repairing its own work, the permittee must restore any
area within ten (10) feet of the new excavation that has previously
been excavated, including the paving and its aggregate foundations.
The permittee must also inspect the area of the work and use reasonable
care to maintain the same condition for a period of thirty-six (36)
months following the acceptance by the Public Works Director of the
original restoration.
D. The
permittee shall repair its own work at no expense to the City or any
of the City's agents, representatives or authorized contractors.
E. The
permittee shall perform repairs and restoration according to standards
and with the material specified by the Public Works Director. The
Public Works Director shall have the authority to prescribe the manner
and extent of the restoration and may do so in written procedures
of general application or on a case-by-case basis. In exercising this
authority, the Public Works Director shall be guided by the following
standards and considerations:
1. The number, size, depth and duration of the excavations, obstructions
or damage to the right-of-way;
2. The traffic volume carried by the right-of-way;
3. The character of the neighborhood surrounding the right-of-way;
4. The pre-excavation condition of the right-of-way;
5. The remaining life expectancy of the right-of-way affected;
6. Whether the relative cost of the method of restoration to the permittee
is in reasonable balance with the prevention of an accelerated depreciation
of the right-of-way that would otherwise result from the excavation,
obstruction or damage to the right-of-way; and
7. The likelihood that the particular method of restoration would be
effective in slowing the depreciation of the right-of-way that would
otherwise take place.
F. During
the thirty-six (36) months following the acceptance by the Public
Works Director of the original restoration, the permittee shall, upon
request from the Public Works Director, correct all restoration work
to the extent necessary, using any method as required by the Public
Works Director. Said work shall be completed within five (5) days
of the receipt of notice from the Public Works Director (not including
days during which work cannot be done because of circumstances constituting
force majeure or days when work is prohibited as unseasonable or unreasonable).
G. The
thirty-six (36) month guarantee period shall only be applicable to
the pavement surface. The permittee shall be responsible in perpetuity
to repair any failure of the excavation below the pavement surface.
H. If
the permittee fails to restore the right-of-way in the manner and
to the condition required by the Public Works Director or fails to
satisfactorily and timely complete all restoration required by the
Public Works Director, the Public Works Director may choose to complete
such work. In such event, the permittee shall pay to the City, within
thirty (30) days of billing, the costs associated with restoration
of the right-of-way plus a sum of five hundred dollars ($500.00).
I. Payment
of a degradation cost shall not relieve the permittee of the obligation
to complete the necessary right-of-way restoration.
J. The
Public Works Director shall have the authority to extend the guarantee
period for an additional thirty-six (36) months from the date of the
new restoration if the Public Works Director determines any overt
action by the permittee not to comply with the conditions of the right-of-way
permit and any restoration requirements.
[Ord. No. 1002 §12, 8-9-2000]
A. The
permittee responsible for the excavation and who leaves any debris
in the right-of-way shall be responsible for providing safety protection
in accordance with the latest edition of the Manual of Uniform Traffic
Control Devices.
B. If
an excavation cannot be backfilled immediately, the permittee shall
request approval of the Public Works Director to secure and adequately
cover the unfilled excavation with a steel plate if in the roadway
or by timbers and plywood if not in the roadway.
[Ord. No. 1002 §13, 8-9-2000]
The permittee shall solely assume all liability for work performed
in the right-of-way and shall wholly indemnify and defend the City
for any action brought against the City as the result of such work.
[Ord. No. 1002 §14, 8-9-2000]
A. Permittees
may apply jointly for permits to excavate or obstruct the right-of-way
at the same time and place.
B. Permittees
who apply jointly for a right-of-way permit may share in the right-of-way
permit fee. Permittees must agree among themselves as to the portion
each shall pay.
[Ord. No. 1002 §15, 8-9-2000]
A. A right-of-way
permit shall only be valid for the area of the right-of-way specified
within the permit. No permittee may cause any work to be done outside
the area specified in the permit, except as provided herein. Any permittee
who determines that an area greater than that which is specified in
the permit must be excavated or obstructed must do the following prior
to the commencement of work in that greater area:
1. Make application for a permit extension and pay any additional fees
required thereby, and
2. Receive a new permit or permit extension.
B. A right-of-way
permit shall be valid only for the dates specified in the permit.
No permittee may commence work before the permit start date or, except
as provided herein, may continue working after the end date. If a
permittee does not complete the work by the permit end date, the permittee
must apply for and receive a new permit or a permit extension for
additional time. This supplementary application must be submitted
to the City prior to the permit end date.
[Ord. No. 1002 §16, 8-9-2000]
A. Obtaining
a right-of-way permit under this Chapter shall not relieve the permittee
of its duty to obtain all other necessary permits, licenses and authority
and to pay all fees required by any other City, County, State or Federal
rules, laws or regulations. A permittee shall perform all work in
full accord with any and all applicable engineering codes adopted
or approved by the parties and in accordance with applicable Statutes
of the State of Kansas and the rules and regulations of the Kansas
Corporation Commission or any other local, State or Federal agency
having jurisdiction over the parties. A permittee shall perform all
work in conformance with all applicable codes and established rules
and regulations and shall be responsible for all work done in the
right-of-way pursuant to its permit, regardless of who the work is
done by.
B. Except
in cases of emergency and with approval of the Public Works Director,
no right-of-way work may be done when seasonally prohibited or when
conditions are unreasonable for such work.
C. A permittee
shall not obstruct a right-of-way that the natural free and clear
passage of water through the gutters or other waterways shall be interfered
with. Private vehicles may not be parked within or next to the permit
area.
D. If
the City engages in any construction project on its right-of-way which
is owned by or under the control of the City which makes it necessary
to remove or relocate any portion of the facilities owned by permittee,
the permittee shall make any necessary relocation at no cost to the
City. It is the intent of this Section for both the City and the permittee
to cooperate with one another so that the need for facility relocation
is minimized and, when required and feasible, relocations may be completed
prior to receipt of bids by the City for a public improvement project.
E. As
soon as working drawings are available for City projects which will
require the permittee to relocate its facilities, the City shall provide
the permittee with written notice of desired relocations and the anticipated
bid letting date of said project. The permittee shall respond with
any conflicts and a proposed construction schedule within thirty (30)
days. Following notice by the City in the form of the delivery of
final design plans, the permittee shall remove and relocate its facilities
in accordance with the mutually agreed upon schedule, provided the
project is not delayed by adverse weather conditions and other factors
beyond the control of the permittee.
[Ord. No. 1002 §17, 8-9-2000]
A. Except
in an emergency, no right-of-way permit shall be granted as follows:
1. To any person who does not maintain a current license with the City;
2. For any project which requires excavation of any portion of a right-of-way
which was constructed or reconstructed within the preceding five (5)
years;
3. To any person who has failed within the last three (3) years to comply
or is presently not in full compliance with the requirements of this
Chapter;
4. If, in the discretion of the Public Works Director, the issuance
of a permit for the particular dates and/or time would cause a conflict
or interfere with an exhibition, celebration, festival or any other
event. In exercising this discretion, the Public Works Director shall
be guided by the safety and convenience of ordinary travel of the
public over the right-of-way and by the considerations relating to
the public health, safety and welfare of the general public.
B. Notwithstanding
the above provisions, the Public Works Director may issue a right-of-way
permit in any case where the permit is necessary to:
1. Prevent substantial economic hardship to a user of the permit applicant,
or
2. Allow such user to materially improve the service provided by the
permit applicant.
[Ord. No. 1002 §18, 8-9-2000]
A. Any
excavation, backfilling, repair and restoration and all other work
performed in the right-of-way shall be done in conformance the APWA
specifications as promulgated by the Public Works Director.
B. The
permittee shall employ a testing laboratory as approved by the Public
Works Director, which shall certify the proper backfilling on any
excavation. Separate testing shall be completed for each day the backfilling
occurs. The testing laboratory shall mail the certification directly
to the Public Works Director. The permittee shall pay all costs associated
with such testing.
C. The
permittee shall notify the office of the Public Works Director when
the restoration is complete.
D. The
permittee shall make the work site available to the Public Works Director
and to all others as authorized by law for inspection at all reasonable
times during the execution of and completion of the work.
E. At
the time of inspection, the Public Works Director may order the immediate
cessation of any work which poses a serious threat to the life, health,
safety or well-being of the public. The Public Works Director may
issue a violation order to the permittee for any work which does not
conform to the applicable standards, conditions, code or terms of
this permit. The violation order shall state that failure to correct
the violation will be cause for revocation of the permit.
[Ord. No. 1002 §19, 8-9-2000]
A. The
permittee shall keep and maintain accurate records and as-built drawings
depicting horizontal and vertical location of all facilities constructed,
reconstructed, located or relocated in the right-of-way after the
date thereof.
B. Horizontal
and vertical data points shall be taken every twenty-five (25) feet
or at each change in alignment and at each appurtenance.
[Ord. No. 1002 §20, 8-9-2000]
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
hereof.
[Ord. No. 1002 §21, 8-9-2000]
The City's failure to enforce or remedy any non-compliance of
the terms and conditions of this Article or of any permit granted
hereunder shall not constitute a waiver of the City's rights nor a
waiver of any service provider obligation as herein provided.
[Ord. No. 1002 §22, 8-9-2000]
A. The
violation of any provision of this Article is hereby declared to be
a public offense and any person, firm, association, partnership or
corporation convicted of a violation hereof shall be punished by a
fine as provided in the City of Mission Municipal Code.
B. The
violation of any provision of this Article is hereby deemed to be
grounds for revocation of the service provider's permit and license
to operate within the City.
[Ord. No. 1002 §23, 8-9-2000]
A. In
addition to any rights specifically reserved to the City by this Article,
the City reserves unto itself every right and power which is required
to be reserved by a provision of any ordinance under any license granted
under this Article. The City shall have the right to waive any provision
of this Article or any permit granted thereunder, except those required
by Federal or State law, if the City determines as follows:
1. It is in the public interest to do so, and
2. The enforcement of such provision will impose an undue hardship on
the service provider.
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To be effective, such waiver shall be evidenced by a statement
in writing signed by a duly authorized representative of the City.
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[Ord. No. 1002 §24, 8-9-2000]
All other ordinances and resolutions or parts thereof inconsistent
or in conflict with the terms hereof shall be canceled, annulled,
repealed and set aside; provided, that this Article shall not take
effect or become in force until the requirements for adopting an ordinance
as set forth in the City of Mission Municipal Code have occurred.