(a)
No person shall excavate the right-of-way, construct, or use the
facilities within the right-of-way of the City except as provided
herein.
(a)
To recognize the City's primary role as chief steward of the right-of-way
and its duty to its citizens to recover the costs of managing the
right-of-way and incursions into it;
(b)
To clarify and regulate conditions of occupancy and construction
for those ROW users occupying space within the City's right-of-way
given the anticipated increased use of the right-of-way by various
ROW users throughout the country;
(c)
To recognize the necessity for sound management practices in light
of the increased use of the right-of-way and the fact that the right-of-way
is a limited resource;
(d)
To treat each ROW user equitably and in a competitively neutral manner
with considerations that maybe unique to the technologies and situation
of each particular ROW user;
(e)
To minimize disruption, visual impact or inconvenience to the public,
and to preserve the public health, safety and welfare; and
(f)
To comply with state and federal legislation.
[Amended 1-3-2017 by Ord. No. 213]
(a)
ABANDONED FACILITIES
ADMINISTRATIVE FEE
AFFILIATE
APPLICANT
APPLICATION
AREA OF INFLUENCE
CITY
CITY ENGINEER
CONSTRUCT
DAY
DEGRADATION
DEGRADATION FEE
DEPRECIATION RATE
EMERGENCY
EXCAVATE
EXCAVATION FEE
EXISTING FACILITY
FACILITY
FACILITY-BASED SERVICE PROVIDER
FCC
GOVERNING BODY
GOVERNMENTAL ENTITY
KCC
NEWLY CONSTRUCTED FACILITIES
PARKWAY
PAVEMENT
PERMIT AND INSPECTION FEE
PERMITTEE
PERSON
PUBLIC IMPROVEMENT
PUBLIC LANDS
PUBLIC WORKS DIRECTOR
REGISTRATION
REPAIR
REPAIR AND RESTORATION COSTS
RESELLER SERVICE PROVIDER
RESTORATION
RIGHT-OF-WAY
RIGHT-OF-WAY PERMIT
ROUTINE SERVICE OPERATION
ROW USER
SERVICE
SERVICE PROVIDER
STREET
For purposes of this article, the following words and phrases shall
have the meanings given herein:
Those facilities owned by the ROW user that are not in use
and will not be utilized by the owner in the future.
The fee charged by the City to recover its costs incurred
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
improvements; determining the adequacy of right-of-way restoration;
revoking right-of-way permits; and other costs the City may incur
in managing the provisions of this article.
Any person controlling, controlled by or under the common
control of a service provider.
Any person requesting permission to occupy, lease or operate
facilities using the right-of-way, or to excavate the right-of-way.
A request submitted by an applicant to an authority for:
That area around a street excavation where the pavement and
subgrade is impacted by the excavation and is subject to more-rapid
deterioration.
The City of Mission Woods, Kansas, a municipal corporation,
and any duly authorized representative.
The City Engineer, Mission Woods, Kansas, or the authorized
representative.
Includes construct, install, erect, build, affix or otherwise
place any fixed structure or object in, on, under, through or above
the right-of-way.
A calendar day, unless otherwise specified.
The accelerated depreciation of a street caused by excavation
in or disturbance of the street, resulting in the need to reconstruct
such right-of-way earlier than would be required if the excavation
did not occur.
The fee charged by the City to recover the cost to the City
and the public at large associated with a decrease in the useful life
of a street caused by excavation.
The rate at which the useful service life of a public street
improvement deteriorates over time.
A condition that:
Includes any cutting, digging, excavating, tunneling, boring,
grading or other alteration of the surface or subsurface material
or earth in the right-of-way.
The fee charged by the City for each street or pavement cut,
which is intended to recover the costs associated with construction
and repair activities of the ROW user and its contractors and/or subcontractors.
A facility that exists at the time an application is filed.
Lines, pipes, irrigation systems, wires, cables, conduit
facilities, ducts, poles, towers, vaults, pedestals, boxes, appliances,
antennas, transmitters, gates, meters, appurtenances, wireless communication
facilities (including, but not limited to, wireless support structures,
small cell facilities, base stations, transmission equipment, distributed
antenna systems, and primary equipment enclosures, all as may be defined
or described in the Kansas New Wireless Deployment Act, as amended),
or other equipment.
A service provider owning or possessing facilities in the
right-of-way.
The Federal Communications Commission.
The Mayor and the City Council of the City of Mission Woods,
Kansas.
Any county, township, city, town, village, school district,
library district, road district, drainage or levee district, sewer
district, water district, fire district or other municipal corporation,
quasi-municipal corporation or political subdivision of the State
of Kansas or of any other state of the United States and any agency
or instrumentality of the State of Kansas or of any other state of
the United States.
The Kansas Corporation Commission.
All facilities other than existing facilities, except:
The area between a property line and the street curb; sometimes
called "boulevard," "tree shelf" or "snow shelf."
Includes Portland cement concrete pavement, asphalt concrete
pavement, asphalt-treated road surfaces and any aggregate base material.
The fee charged by the City to recover its costs incurred
for right-of-way management, including, but not limited to, costs
associated with registering applicants; issuing, processing and verifying
right-of-right permit applications; inspecting job sites and restoration
of improvements; determining the adequacy of right-of-way restoration;
revoking right-of-way permits; and other costs the City may incur
in managing the provisions of this article.
Any person to whom a right-of-way permit is issued to excavate
a right-of-way.
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.
Any project undertaken by the City for the construction,
reconstruction, maintenance, or repair of any public infrastructure,
and including, without limitation, streets, alleys, bridges, bikeways,
parkways, sidewalks, sewers, drainage facilities, traffic control
devices, streetlights, public facilities, public buildings or public
lands.
Any real property of the City that is not right-of-way.
The Director of the Public Works Department of the City of
Mission Woods, Kansas, or the authorized representative.
The application process of a service provider, the approval
of the application by the City, and the authorization of the service
provider to use any portion of the right-of-way within the City to
provide service both within and beyond the City limits.
The temporary construction work necessary to make the right-of-way
usable.
Those costs associated with repairing and restoring the public
right-of-way because of damage caused by the ROW user and its contractors
and/or subcontractors in the right-of-way.
A service provider providing service within the City that
does not have its own facilities in the right-of-way, but instead
uses the right-of-way by interconnecting with or using the network
elements of another service provider utilizing the right-of-way, and/or
by leasing excess capacity from a facility-based provider.
The process by which an excavated right-of-way and surrounding
area, including pavement and foundation, is returned to the same condition,
or better, than existed before the commencement of the work.
The area on, below, or above streets, alleys, bridges, and
parkways in which the City has a dedicated or acquired right-of-way
interest in the real property.
The authorization to excavate for the construction, installation,
repair or maintenance of any type of facility within the right-of-way.
A work activity that makes no material change to the facilities
and does not disrupt traffic.
A person, its successors and assigns, that uses the right-of-way
for purposes of work, excavation, provision of services, or to install,
construct, maintain, or repair facilities thereon, including, but
not limited to, landowners and service providers. A ROW user shall
not include ordinary vehicular or pedestrian traffic or any governmental
entity that has entered into an interlocal agreement pursuant to K.S.A.
12-2901 et seq. with the City regarding the use and occupancy of the
City's right-of-way.
A commodity provided to a person by means of a delivery system
that is comprised of facilities located or to be located in the right-of-way,
including, but not limited to, gas, telephone, cable television, internet
services, open video systems, wireless services, alarm systems, steam,
electric, water, telegraph, data transmission, petroleum pipelines,
or sanitary sewerage.
Any person owning, possessing or having an interest in facilities
in the right-of-way that are used for the provision of a service for
or without a fee, provided that this definition shall also include
persons owning, possessing or having an interest in facilities in
the right-of-way that are used by, may be used by or are intended
for use by another person, in whole or in part, to provide a service
for or without a fee, regardless of whether the actual facility owner
provides any service as defined herein.
The pavement and subgrade of a City residential, collector
or arterial roadway.
(a)
It is the policy of the City to authorize any ROW user to utilize
the right-of-way in a competitively neutral, nondiscriminatory manner
that maximizes the efficient 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 ROW user shall be subject to the
terms and conditions hereof, in addition to other applicable federal,
state or local requirements.
(b)
The right granted to the ROW user to use the right-of-way is limited
to the use that the ROW user has filed with the City in accordance
with this Ordinance. These rights are for the exclusive use of the
ROW user except where otherwise provided herein, or when authorized
by the City.
(c)
This Ordinance also is designed to regulate occupancy and excavations
in the right-of-way by providing, among other things, for the issuance
of permits which grant the authority to utilize and occupy the right-of-way
within the City.
(d)
All ROW users 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 are
subject to all applicable laws, orders, rules and regulations adopted
by governmental entities now or hereafter having jurisdiction. In
addition, the ROW users shall be subject to all technical specifications,
design criteria, policies, resolutions and ordinances now or hereafter
adopted or promulgated by the City in the reasonable exercise of its
police power 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.
(a)
The Public Works Director is the principal City official for administration
of right-of-way permits for work and excavations made in the right-of-way.
The Public Works Director may delegate any or all of the duties hereunder.
(b)
The Public Works Director is the principal City Official responsible
for administration of the registering of a service provider. The Public
Works Director may delegate any or all of the duties hereunder.
(a)
Any existing service provider must register within 30 days of the
effective date of this Ordinance.
(b)
Any person, who is not an existing service provider prior to the
effective date of this Ordinance and who wishes to become a service
provider, must first register with the City.
(c)
The service provider shall report any changes in its registration
information within 30 days.
(d)
No service provider shall be authorized to utilize the right-of-way
in any capacity or manner without registering and obtaining the necessary
right-of-way permit from the City.
(e)
The information required for registration includes the following:
(1)
Identity and legal status of service provider, including related
affiliates.
(2)
Name, address, telephone number, fax number and email address
of officer, agent or employee responsible for the accuracy of the
registration statement.
(3)
Name, address, telephone number, fax number and email address
of the local representative of the service provider who shall be available
at all times to act on behalf of the service provider in the event
of an emergency.
(4)
Proof of any necessary permit, license, certification, grant,
registration, franchise agreement or any other authorization required
by any appropriate governmental entity, including, but not limited
to, the City, the FCC or the KCC.
(5)
Description of the service provider's intended use of the right-of-way.
(6)
Information sufficient to determine whether the service provider
is subject to franchising by Kansas law.
(7)
Information sufficient to determine whether the service provider
has applied for and received any certificate of authority required
by the Kansas Corporation Commission.
(8)
Information sufficient to determine that the service provider
has applied for and received any permit or other approvals required
by the Federal Communications Commission.
(9)
Information which identifies reseller service providers as provided
hereinafter.
(10)
Such other information as may be reasonably required by the
City to complete the registration statement.
(f)
Each service provider shall designate a local person familiar with
the facilities who will act as a local agent for the service provider
and will be responsible for satisfying information requirements of
this Ordinance. The service provider shall present to the City the
agent's name, address, telephone number, fax number and email address.
The agent shall be the person to whom relocation notices and other
such notices shall be sent, and with whom rests the responsibility
to facilitate all necessary communications. The service provider shall
be responsible for all costs incurred by the City due to the failure
to provide such information to the City.
(g)
Prior to construction, reconstruction, repair, maintenance, or relocation
of facilities owned by the service provider in the right-of-way, the
service provider shall first obtain the necessary right-of-way permit
as provided hereafter.
(h)
Prior to providing service to the City and its residents, the service
provider shall first obtain the necessary franchise agreement, if
any, from the City.
(i)
The service provider shall participate in any joint planning, construction
and advance notification of right-of-way work, including coordination
and consolidation of street cut work as directed by the Public Works
Director. In addition, the service provider shall cooperate with other
service providers and the City for the best, most efficient, most
aesthetic and least obtrusive use of the right-of-way, consistent
with safety, and to minimize traffic and other disruptions, including
street cuts.
(j)
The service provider shall furnish maps showing the location of facilities
of the service provider within the City as provided hereafter.
(k)
To the extent allowed by law, the City may limit the number of registrations,
based upon, but not necessarily limited to, specific local considerations
such as:
(1)
The capacity of the right-of-way to accommodate service facilities;
(2)
The impact on the community of the volume of facilities in the
right-of-way;
(3)
The disruption arising from numerous excavations of the right-of-way;
(4)
The financial capabilities of the service provider and its guaranteed
commitment to make necessary investments to erect, maintain and operate
the proposed facilities; or
(5)
Any other consideration based upon the interests of the public
safety and welfare.
(l)
The City shall not exercise its authority under this provision to
in any way deter competition or discriminate against any service provider.
(a)
The service provider shall keep and maintain accurate records and
as- built drawings depicting accurate location of all its facilities
constructed, reconstructed or relocated in the right-of-way.
(b)
Within 10 days of a request by the City, the service provider will
provide to the City information concerning such facilities as may
be reasonably requested.
(c)
When available to the service provider, such information will be
submitted electronically in an AutoCad format to the extent compatible
with the City's Geographical Information Systems (GIS) and Johnson
County Automated Integrated Mapping Systems (AIMS) provided, however,
that nothing herein shall be construed to require the service provider
to acquire or modify any electronic mapping system.
(d)
Underground facilities shall be differentiated from overhead facilities.
(e)
Such mapping and identification shall be at the sole expense of the
service provider.
(f)
Such information shall be considered confidential and proprietary
and shall remain the sole property of the service provider. Additionally,
pursuant to K.S.A. 45-221(18), as amended, such information shall
not constitute public records subject to K.S.A. 45-218, as amended.
In the event the City's denial of any request for such information
is challenged, the City shall immediately notify the service provider,
and will take such action as may be reasonably required to cooperate
with the service provider's efforts to safeguard such information.
(a)
Except as provided hereafter, the service provider shall not sell,
transfer, lease, assign, sublet or dispose of its facilities, or any
portion thereof, that is located in City right-of-way, or any right,
title or interest in the same, or the transfer of any rights granted
by the City to any person either by forced or involuntary sale, or
by ordinary sale, consolidation or otherwise, without notice to the
City. This provision shall not apply to the sale of property or equipment
in the normal course of business or to the sale or lease of facilities
to reseller service providers. No notice to the City shall be required
for a transfer in trust, mortgage, or other similar instrument, 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 service provider.
(a)
A service provider may permit and has the authority to sell, sublet,
or lease any use of excess capacity and sell services for resale to
any reseller service provider providing service within the City, including
the service provider's subsidiary or affiliate. The reseller service
provider shall first register and obtain any necessary permit, license,
certification, grant, registration, franchise agreement or any other
authorization required by any appropriate governmental entity, including,
but not limited to, the City, the FCC or the KCC. The service provider
shall also provide the City on at least a semiannual basis the identity
of entities with which the service provider has entered into an interconnection
and/or resale agreement within the State of Kansas. This notice will
not relieve the reseller service provider from its own obligation
to register and obtain any necessary franchise with the City. Nothing
in this Ordinance shall prevent a facility-based service provider,
from providing to any reseller service provider the use of the facility-based
service provider's facilities in the right-of-way as authorized by
federal or state law.
[Amended 1-3-2017 by Ord. No. 213]
(a)
The ROW user'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 ROW user shall coordinate the placement of facilities in a manner
that does not interfere with a public improvement and does not compromise
the public health, safety, or welfare, 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. Such standards shall be
competitively neutral and not unreasonable or discriminatory.
(c)
The ROW users shall consider any request made by the City concerning
placement of facilities in private easements in order to limit or
eliminate future street improvement relocation expenses.
(d)
All facilities shall be located and laid so as not to disrupt or
interfere with any pipes, drains, sewers, irrigation systems, or other
structures or public improvements already installed. In addition,
the ROW user shall, in doing work in connection with its facilities,
avoid, so far as may be practicable, disrupting or interfering with
the lawful use of the right-of-way or other public lands of the City.
(e)
All facilities of the ROW user shall be placed so that they do not
interfere with the use of the right-of-way and public lands. 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.
(f)
All newly constructed facilities shall be located underground. The
ROW user shall comply with all requirements of the City relating to
underground facilities. This requirement may be waived by the Public
Works Director at his or her discretion for safety concerns, or some
other good cause, under the condition that it does not cause discrimination
among ROW users. If this requirement is waived, the facilities shall
be located as directed by the Public Works Director, including, but
not limited to, requirements regarding location, height, breakaway
design, and clear zones; provided, however, the height of a facility
will not exceed, or cause any existing facility to exceed, the lesser
of:
(1)
Thirty-five feet for residential or collector streets or 45
feet for arterial streets; and
(2)
Sixty-six inches above the height of existing streetlight poles
along the right-of-way surrounding the facility.
a.
Aboveground facilities shall comply with the Manual of Infrastructure
Standards and all applicable zoning regulations, including, but not
limited to, design, size, height, setbacks, screening and landscaping,
and illumination, and be located in a manner that does not compromise
the public health, safety, or welfare. No newly constructed aboveground
facilities shall be located in any front yard, as determined by applicable
zoning or subdivision regulations.
(g)
The ROW user shall not interfere with the facilities of the other
ROW users without their permission. If and when the City requires
or negotiates to have a service provider cease using its existing
poles and to relocate its facilities underground, all other service
providers using the same poles shall also relocate their facilities
underground at the same time, except transmission equipment, as defined
in 47 CFR 1.40001, provided any such relocations shall be subject
to the appeal process contained in Section 13-528, as amended.
(h)
The Public Works Director may assign specific corridors within the
right-of-way, or any particular segment thereof as may be necessary,
for each type of facility that is currently 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 Public
Works Director shall indicate the proper corridor for the ROW user's
facilities. Any ROW user whose facilities are currently in the right-of-way
in a position at a 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 requirement
is waived by Public Works Director for good cause shown, upon consideration
of such factors as the remaining economic life of the facilities,
public health, safety, or welfare, user service needs and hardship
to the ROW user.
(i)
If, in the preparation and planning of a right-of-way project, the
Public Works Director deems it appropriate for a conduit to be constructed
along, across or under the right-of-way, the Public Works Director
shall contact all appropriate ROW users for their input on the planning
and design of such conduit. If a ROW user desires to construct, maintain
or operate facilities along such right-of-way, the Public Works Director
may require the ROW user to use such conduit, and to contribute to
the expense of such conduit; provided, however, the ROW user's
use of the conduit is reasonable and appropriate under the circumstances.
(j)
All earth, materials, sidewalks, paving, crossings, utilities, other
public improvements or improvements of any kind damaged or removed
by the ROW user shall be fully repaired or replaced promptly by the
ROW user at its sole expense and to the reasonable satisfaction of
the City. Upon determination by the Public Works Director that such
repair or replacement is a public safety matter, all such repair or
replacement shall be commenced within 24 hours of notice from the
City, or the Public Works Director may direct the City to make such
repair or replacement and bill the ROW user for the City's cost.
The Public Works Director has the authority to inspect the repair
or replacement of the damage and, if necessary, to require the ROW
user to do any necessary additional work.
(k)
All technical standards governing construction, reconstruction, installation,
operation, testing, use, maintenance, and dismantling of a ROW user's
facilities in the right-of-way shall be in accordance with the Manual
of Infrastructure Standards and all applicable federal, state and
local law and regulations, including those promulgated by national
trade associations commonly associated with the service provided by
the ROW user. 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. A ROW user shall not construct or reconstruct
any of its facilities located upon, over, under or within the City
right-of-way without first having submitted, in writing, a description
of its planned improvement to the Public Works Director and having
received a permit for such improvement. The Public Works Director
may require that any drawings, plans and/or specifications submitted
be certified by a Kansas registered professional engineer stating
that such drawings, plans and/or specifications comply with all applicable
technical codes, rules and regulations, unless such plans are based
directly on nationally recognized codes, which are appropriately cited
and attested to on the plans by the signature of an authorized official
of the organization applying for the permit.
(l)
The ROW user 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, both underground
and overhead, when requested by the City or its authorized agent for
a public improvement. Such location and identification shall be at
the sole expense of the ROW user without any expense to the City,
its employees, agents, or authorized contractors.
[Amended 1-3-2017 by Ord. No. 213]
(a)
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
with due diligence upon notice by the City to begin relocation.
(b)
The ROW user shall promptly remove, relocate or adjust any facilities
located in a 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 City construction and improvements.
The ROW user shall disclaim those parts of its easements which lie
within the expanded right-of-way. Should the City, in the future,
elect to require the ROW user to again relocate its facilities to
other areas within the expanded right-of-way, the cost of any such
future relocation shall be borne by the City.
(c)
As soon as working drawings are available for public improvements
which will require the ROW user to relocate its facilities, the City
shall provide the ROW user with written notice of relocations and
the anticipated bid-letting date of said improvement. The ROW user
shall respond with any conflicts and a proposed construction schedule
within 30 days.
(d)
Following notice by the City in the form of the delivery of final
design plans for such public improvements, the ROW user 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 ROW user. The
ROW user shall certify to the City, in writing, that its facilities
have been relocated or adjusted to clear construction in accordance
with project plans provided by the City.
(e)
Any damages suffered by the City, its agents or its contractors to
the extent caused by the ROW user's failure to timely relocate
or adjust its facilities, or failure to properly relocate or adjust
such facilities, shall be borne by the ROW user.
(f)
In the event the ROW user is required to move its facilities in accordance
with this section, any ordinary right-of-way permit fee shall be waived.
(g)
It is the intent of this section for both the City and the ROW user
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.
(h)
In the event that a ROW user is required to move its facilities for
a private benefit, the ROW user shall not bear the cost of the relocation
or adjustment to the extent of such private benefit, and the ROW user
shall not be obligated to commence the relocation or adjustment until
receipt of funds for such relocation or adjustment.
[Amended 1-3-2017 by Ord. No. 213]
(a)
It shall be the responsibility of the ROW user to take adequate measures
to protect and defend its facilities in the right-of-way from harm
and damage.
(b)
The City shall not be liable for any damage to or loss of any of
the ROW user's facilities within the right-of-way as a result
of or in connection with any construction, excavation, grading, filling
or work of any kind, including public improvements by or on the behalf
of the City, except to the extent caused by the negligent, willful,
intentional, or malicious acts or omissions of the City.
(c)
The ROW user shall be responsible to the City and its agents, representatives,
and authorized contractors for all damages suffered by them, including,
but not limited to, delay damages, repair costs, down time, construction
delays, penalties or other expenses of any kind arising out of the
failure of the ROW user to timely perform any of its obligations under
this article to the extent caused by the acts or omissions of the
ROW user.
(d)
The City or its authorized contractors shall be responsible for taking
reasonable precautionary measures, including calling for facility
locations, when constructing its public improvements.
(e)
Any ROW user who, for any purpose, makes or causes to be made any
excavation in, upon, under, through or adjoining any street, sidewalk,
alley or other right-of-way, and shall leave any part or portion thereof
open, or shall leave any part or portion thereof disrupted with rubbish,
building or other material during construction and/or the night time,
shall cause the same to be enclosed with good substantial and sufficient
barricades or drums equipped with the appropriate type warning lights
and orange safety fencing material which is properly secured around
the excavation or the disruption.
(f)
Whenever a ROW user shall excavate the full width of any street,
sidewalk, alley, driveway approach or other right-of-way, it shall
be its duty to maintain an adequate passage for vehicles and pedestrians
across or around the excavation until it is refilled as specified.
(g)
Any excavation left open overnight on any thoroughfare or collector-type
street shall be securely covered. The ROW user assumes the sole responsibility
for maintaining proper barricades, plates, safety fencing and/or lights
as required from the time of opening of the excavation until the excavation
is surfaced and opened for travel.
(h)
The Public Works Director, upon the review and approval of a plan
and details for trimming trees in the right-of-way, may grant permission
by permit to any ROW user to trim trees upon and overhanging the right-of-way
so as to prevent such trees from coming in contact with the facilities
of the ROW user.
(i)
In the event the ROW user severely disturbs or damages the root structure
of any tree in the right-of-way to the detriment of the health and
safety of the tree, the ROW user will be required to remove and replace
the tree at the ROW user's cost. Further, in review of the ROW
user's plan, the Public Works Director, in his or her discretion,
may require the ROW user to directionally bore around any tree in
the right-of-way.
(j)
Upon the appropriate request of any person having satisfied City
procedure and ordinances, the ROW user shall remove, raise, or lower
its facilities temporarily to permit the moving of houses or other
structures. The expense of such temporary removal, raising or lowering
shall be paid by the person requesting the same, and the ROW user
may require such payment in advance. The ROW user must be given not
less than 15 days' written notice from the person detailing the
time and location of the moving operations, and not less than 24 hours'
advance notice from the person advising of the actual operation.
(k)
The Public Works Director may cause to be removed any encroachment
in the right-of-way that creates a hazard to public health, safety,
or welfare, and the cost of such removal and restoration of the right-of-way
shall be borne by the ROW user.
(a)
If the City vacates a right-of-way which contains the facilities
of the service provider, and if the vacation does not require the
relocation of the service provider's facilities, the City shall reserve,
to and for itself and all service providers having facilities in the
vacated right-of-way, an easement for the right to install, maintain
and operate any facilities in the vacated right-of-way and to enter
upon such vacated right-of-way at any time for the purpose of reconstructing,
inspecting, maintaining or repairing the same.
(b)
If the vacation requires the relocation of facilities, and
(1)
If the vacation proceedings are initiated by the service provider,
the service provider must pay the relocation costs.
(2)
If the vacation proceedings are initiated by the City, the service
provider must pay the relocation costs unless otherwise agreed to
by the City and the service provider.
(3)
If the vacation proceedings are initiated by a person other
than the service provider or the City, such other person must pay
the relocation costs.
[Amended 1-3-2017 by Ord. No. 213]
(a)
A ROW user owning abandoned facilities in the right-of-way must either:
(1)
Remove its facilities and replace or restore any damage or disturbance
caused by the removal at its own expense. The Public Works Director
may allow underground facilities or portions thereof to remain in
place if the Public Works Director determines that it is in the best
interest of public health, safety, or welfare to do so. At such time,
the City may take ownership and responsibility of such vacated facilities
left in place; or
(2)
Provide information satisfactory to the City that the ROW user's
obligations for its facilities in the right-of-way have been lawfully
assumed by another authorized ROW user; or
(3)
Submit to the City a proposal and instruments for transferring
ownership of its facilities to the City. If the ROW user proceeds
under this section, the City may, at its option, purchase the equipment,
require the ROW user, at its own expense, to remove it, or require
the ROW user 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 ROW user who fails to comply with this section, and
whose facilities remain unused for two years, shall be deemed to be
abandoned after the City has made a good-faith effort to contact the
ROW user, unless the City receives confirmation that the ROW user
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)
Except as otherwise provided, no ROW user may excavate any right-of-way
or conduct any repair, construction, or reconstruction of facilities
located within the right-of-way without first having obtained the
appropriate right-of-way permit.
(c)
No person owning or occupying any land abutting on a public right-of-way
shall construct, maintain, or permit in or on the portion of the public
right-of-way to which such land is adjacent, any fixed structure,
material or object without having obtained the appropriate right-of-way
permit.
(d)
A right-of-way permit is required for emergency situations. If due
to an emergency it is necessary for the ROW user to immediately perform
work in the right-of-way, and it is impractical for the ROW user to
first get the appropriate permit, the work may be performed, and the
required permit shall be obtained as soon as possible during the next
City working day.
(e)
No permittee may excavate the right-of-way beyond the date or dates
specified in the right-of-way permit unless the permittee:
(f)
Right-of-way permits issued shall be conspicuously displayed by the
permittee 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.
(g)
Prior to the commencement of excavation, the permittee shall identify
and locate any buried facilities to be spray painted according to
the Uniform Color Code required by the Kansas One Call.
(h)
All excavations by the permittee shall have a metal marker inserted
into the excavation of the restored pavement, which shall identify
the ROW user.
(i)
Before receiving a right-of-way permit, the applicant must show proof
of any necessary permit, license, certification, grant, registration,
franchise agreement or any other authorization required by any appropriate
governmental entity, including, but not limited to, the City, the
FCC or the KCC.
(j)
Any ROW user who is found to be working in the public right-of-way
without a permit will be directed to stop work until a permit is acquired
and properly posted at the work site. The only exception allowed is
for emergency repair work.
(k)
Any permittee found to be working without providing for required
safety and traffic control will be directed to stop work until the
appropriate measures are implemented in accordance with the current
edition of the Manual on Uniform Traffic Control Devices.
[Amended 1-3-2017 by Ord. No. 213]
(a)
Application for a right-of-way permit shall be submitted to the Public
Works Director either by the ROW user or by the person who will do
the work and/or excavation in the right-of-way. Before an application
may be submitted, the applicant must attend a preapplication meeting
with designated City staff, unless waived by the Public Works Director.
(b)
Right-of-way applications shall contain and be considered complete
only upon receipt of the following:
(1)
Compliance with verification of registration;
(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 facilities at such location;
(3)
A traffic control plan;
(4)
Payment of all money due to the City for permit fees and costs,
for prior excavation costs, for any loss, damage or expense suffered
by the City because of the applicant's prior excavations of the
right-of-way, or for any emergency actions taken by the City, unless
the payment of such money is in dispute and timely appealed as provided
hereafter.
(c)
All applications shall be processed within the time frames required
by state and federal law.
(d)
In the event the applicant modifies a proposed application, the modified
application will be considered a new application subject to commencement
of a new application review period, provided that the applicant and
the City may enter into a mutually agreeable tolling agreement allowing
the City to request additional submittals and additional time as may
be reasonably necessary for review of the modified application.
(e)
If an applicant has submitted an application for a permit for the
installation, construction, maintenance, or repair of multiple facilities,
that applicant may not submit another application for a permit for
the installation, construction, maintenance, or repair of multiple
facilities until the first application has been approved or denied.
This provision may be waived by the Public Works Director.
(a)
The permittee shall file with the City evidence of liability insurance
with an insurance company licensed to do business in Kansas. The amount
will be not less than $1,000,000 per occurrence and $2,000,000 in
aggregate. The insurance will protect the City from and against all
claims by any person whatsoever for loss or damage from personal injury,
bodily injury, death, or property damage to the extent caused or alleged
to have been caused by the negligent acts or omissions of the permittee.
If the permittee is self-insured, it shall provide the City proof
of compliance regarding its ability to self-insure and proof of its
ability to provide coverage in the above amounts.
(b)
The permittee shall at all times during the term of the permit, and
for two years thereafter, maintain a performance and maintenance bond
in a form approved by the City Attorney. The amount of the bond will
be $5,000 or the value of the restoration, whichever is greater, for
a term consistent with the term of the permit plus two additional
years, conditioned upon the permittee's faithful performance of the
provisions, terms and conditions conferred by this ordinance. An annual
bond in an amount of $50,000 automatically renewed yearly during this
period shall satisfy the requirement of this section in the event
the City shall exercise its right to revoke the permit as granted
herein, then the City shall be entitled to recover under the terms
of said bond the full amount of any loss occasioned.
(c)
A copy of the Liability Insurance Certificate and Performance and
Maintenance Bond must be on file with the City Clerk.
(d)
No performance and maintenance bond or liability insurance will be
required of any governmental entity, or of any residential property
owner working in the right-of-way adjacent to his/her residence, who
does not utilize a contractor to perform the excavation.
[Amended 1-3-2017 by Ord. No. 213]
(a)
The right-of-way permit fee and other appropriate fees, including,
but not limited to, inspection fees, excavation fees, pole attachment
fees, and franchise fees, shall be recommended by the Public Works
Director, approved by the governing body and listed in the Schedule
of Fees maintained in the City Clerk's office, as such schedule
may be amended from time to time. An application shall not be deemed
submitted unless the right-of-way permit fee is paid. The right-of-way
permit fee shall be subject to all state and federal fee limitations.
(b)
Fees paid for a right-of-way permit, which is subsequently revoked
by the Public Works Director, are not refundable.
(c)
Except as provided for in an emergency situation, when a ROW user
is found to have worked or is working in the right-of-way without
having obtained a permit, the fee for the permit will be double the
amount had the ROW user obtained a permit prior to beginning work.
(d)
The City may also charge and collect any necessary repair and restoration
costs.
(a)
If the Public Works Director determines that the applicant has satisfied
the requirements of this Ordinance, the Public Works Director shall
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 permittee
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 other users of the right-of-way, and to minimize the
disruption and inconvenience to the traveling public.
(c)
When a right-of-way permit is requested for purposes of installing
additional facilities and the a performance and maintenance bond for
additional facilities is reasonably determined to be insufficient,
the posting of an additional or larger performance and maintenance
bond for the additional facilities may be required.
(d)
Issued permits are not transferable.
(e)
If work is being done for the ROW user by another person, a subcontractor
or otherwise, the person doing the work and the ROW user shall be
liable and responsible for all damages, obligations, and warranties
herein described.
(a)
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 right-of-way permit.
(b)
The permittee shall not at any one time open or encumber more of
the right-of-way than shall be reasonably necessary to enable the
permittee to complete the project in the most expeditious manner.
(c)
The permittee shall, in the performance of any work required for
the installation, repair, maintenance, relocation and/or removal of
any of its facilities, limit all excavations to those excavations
that are necessary for efficient operation.
(d)
The permittee shall not permit such an excavation to remain open
longer than is necessary to complete the repair or installation.
(e)
The permittee shall notify the City no less than three working days
in advance of any construction, reconstruction, repair, location or
relocation of facilities which would require any street closure or
which reduces traffic flow to less than two lanes of moving traffic
for more than four hours. 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.
(f)
Non-emergency work on arterial and collector streets may not be accomplished
during the hours of 7:00 a.m. to 8:30 a.m. and 4:00 p.m. to 6:00 p.m.,
in order to minimize disruption of traffic flow.
(g)
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 at the permittee's expense. Such signage shall
be in conformance with the latest edition of the Administration's
Manual on Uniform Traffic Control Devices, unless otherwise agreed
to by the City.
(h)
The permittee shall identify and locate any underground facilities
in conformance with the Kansas Underground Utility Damage Prevention
Act "Kansas One Call" system, and notice shall be provided directly
to Water District No. I and either to Kansas City Power and Light
(KCPL) or to the Traffic Operations Section of the Public Works Department
with respect to any municipal traffic signal and street light systems,
as appropriate.
(i)
The permittee shall be liable for any damages to underground facilities
due to excavation work prior to obtaining location of such facilities,
or for any damage to underground facilities that have been properly
identified prior to excavation. The permittee shall not make or attempt
to make repairs, relocation or replacement of damaged or disturbed
underground facilities without the approval of the owner of the facilities.
(j)
Whenever there is an excavation by the permittee, the permittee shall
be responsible for providing adequate traffic control to the surrounding
area as determined by 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 and the peace
and quiet of the neighborhood. In the event the excavation is not
completed in a reasonable period of time, the permittee may be liable
for actual damages to the City for delay caused by the permittee pursuant
to this Ordinance.
(k)
All facilities and other appurtenances laid, constructed and maintained
by the permittee shall be laid, constructed and maintained in accordance
with acceptable engineering practice and in fall 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,
as well as the rules and regulations of the Kansas Corporation Commission
or any other local, state or federal agency having jurisdiction over
the parties.
(l)
Following completion of permitted work for new construction, the
permittee shall keep, maintain and provide to the City accurate records
and as-built drawings, drawn to scale and certified to the City as
accurately depicting the location of all utility facilities constructed
pursuant to the permit. When available to the permittee, maps and
drawings provided will be submitted in AUTOCAD.DXF or AUTOCAD.DWG
automated formats if available, or in hard copy otherwise. The Public
Works Director may waive this requirement. Such information shall
be subject in all respects and shall have the benefit of protection
as set forth in the section entitled "Mapping Requirements of Service
Provider" contained herein.
(m)
The City may use the as-built records of the service provider's facilities
in connection with public improvements.
(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 as specified in the permit. However, in the event
of circumstances beyond the control of the permittee or when work
was prohibited by unseasonable or unreasonable conditions, the Public
Works Director may extend the date for completion of the project upon
receipt of a supplementary application for a permit extension.
(b)
All earth, materials, sidewalks, paving, crossings, utilities, public
improvement or improvements of any kind damaged or removed by the
permittee shall be fully repaired or replaced promptly by the permittee
at its sole expense and the reasonable satisfaction of the City. The
Public Works Director has the authority to inspect the repair or replacement
of the damage, and if necessary, to require the permittee to do the
additional necessary work. Notice of the unsatisfactory restoration
and the deficiencies found will be provided to the permittee and a
reasonable time not to exceed 15 days will be provided to allow for
the deficiencies to be corrected.
(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.
(d)
In addition to repairing its own street cuts, the permittee must
restore any area within five feet of the new street cut that has previously
been excavated, including the paving and its aggregate foundations.
(e)
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 the City may,
at its option, serve written notice upon the permittee and its surety
that, unless within five days after serving of such notice, a satisfactory
arrangement can be made for the proper restoration of the right-of-way,
the City shall immediately serve notice of failure to comply upon
the surety and the permittee, and the surety shall have the right
to take over and complete the work, provided, however, that if the
surety does not commence performance thereof within 10 days from the
date of notice, the City may take over the work and prosecute same
to completion, by contract or otherwise, at the expense of the permittee,
and the permittee and its surety shall be liable to the City for any
and all excess cost assumed by the City by reason of such prosecution
and completion.
(f)
The permittee responsible for the excavation 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 and any applicable federal or state requirement.
(g)
If an excavation cannot be back-filled immediately and left unattended,
the permittee shall securely and adequately cover the unfilled excavation.
The permittee has sole responsibility for maintaining proper barricades,
safety fencing and/or lights as required, from the time of the opening
of the excavation until the excavation is surfaced and opened for
travel.
(h)
In restoring the right-of-way, the permittee guarantees its work
and shall maintain it for 24 months following its completion. During
the 24 months the permittee shall upon notification 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 a reasonable time, not to exceed 30 calendar
days, of the receipt of notice from the Public Works (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)
In the event the permittee is required to perform new restoration
pursuant to the foregoing guarantee, the Public Works Director shall
have the authority to extend the guarantee period for such new restoration
for up to an additional 24 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.
(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 must do the following
prior to the commencement of work in that greater area: (a) make application
for a permit extension and pay any additional fees required thereby;
and (b) receive a new right-of-way 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 right-of-way
permit or a permit extension for additional time. This supplementary
application must be submitted to the City prior to the permit end
date.
(a)
Obtaining a right-of-way permit under this ordinance shall not relieve
the permittee of its duty to obtain any necessary permit, license,
certification, grant, registration, franchise agreement or any other
authorization required by any appropriate governmental entity, including,
but not limited to, the City, the FCC or the KCC, and to pay any 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 KCC 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 by
whom the work is done by.
(b)
Except in cases of an emergency or with approval of the Public Works
Director, no right-of-way work may be done when conditions are unreasonable
for such work.
(c)
A permittee shall not disrupt a right-of-way such that the natural
free and clear passage of water through the gutters or other waterways
is interfered with. Private vehicles may not be parked within or next
to the permit area.
[Amended 1-3-2017 by Ord. No. 213]
(a)
The Public Works Director may deny a permit or prohibit the use or
occupancy of a specific portion of the right-of-way to protect the
public health, safety and welfare, to prevent interference with the
safety and convenience of ordinary travel over the right-of-way, or
when necessary to protect the right-of-way and its users. The Public
Works Director, at his or her discretion, may consider all relevant
factors, including, but not limited to:
(1)
The extent to which the right-of-way space where the permit
is sought is available;
(2)
The competing demands for the particular space in the right-of-way;
(3)
The availability of other locations in the right-of-way or in
other rights-of-way for the facilities of the applicant;
(4)
The applicability of any ordinance or other regulations, including
City zoning regulations, that affect location or other standards for
facilities in the right-of-way;
(5)
The degree of compliance of the applicant with the terms and
conditions of its franchise, this article, and other applicable ordinances
and regulations;
(6)
The degree of disruption to surrounding communities and businesses
that will result from the use of that part of the right-of-way;
(7)
The balancing of costs of disruption to the public and damage
to the right-of-way against the benefits to that part of the public
served by the construction in the right-of-way;
(8)
Whether the applicant maintains a current registration with
the City;
(9)
Whether the issuance of a right-of-way permit for the particular
dates and/or time requested 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 anticipated travel of the public over the
right-of-way;
(10)
Whether the application complies with the Manual of Infrastructure
Standards; and
(11)
The adverse impact of the facilities or the facilities'
proposed location on any reasonable public interest necessitated by
public health, safety, or welfare.
(b)
Notwithstanding the above provisions, the Public Works Director may,
in his or her discretion, issue a right-of-way permit in any case
where the permit is necessary to:
(c)
Any denial of a wireless communications antenna, tower, or related
facilities shall, in accordance with federal and state law, be made
in writing and supported by substantial evidence contained in a written
record issued contemporaneously with said decision.
(a)
Permittees hold right-of-way permits issued pursuant to this ordinance
as a privilege and not as a right. The City reserves its right, as
provided herein, to revoke any right-of-way permit, without refund
of the permit fee, in the event of a substantial breach of the terms
and conditions of any law or the right-of-way permit. A substantial
breach shall include, but not be limited to the following:
(1)
The violation of any material provision of the right-of-way
permit;
(2)
An evasion or attempt to evade any material provision of the
right-of-way permit, or the perpetration or attempt to perpetrate
any fraud or deceit upon the City or its citizens;
(3)
Any material misrepresentation of any fact in the permit application;
(4)
The failure to maintain the required bond or insurance;
(5)
The failure to complete the work in a timely manner;
(6)
The failure to correct a condition indicated on an order issued
pursuant to this ordinance;
(7)
Repeated traffic control violations; or
(8)
Failure to repair facilities damaged in the right-of-way.
(b)
If the Public Works Director determines that the permittee has committed
a substantial breach of any law or condition placed on the right-of-way
permit, the Public Works Director shall make a written demand upon
the permittee to remedy such violation. The demand shall state that
the continued violation may be cause for revocation of the permit,
or legal action if applicable. Further, a substantial breach, as stated
above, will allow the Public Works Director, at his discretion, to
place additional or revised conditions on the right-of-way permit,
specifically related to the manner in which the breach is cured by
the permittee. Within five calendar days of receiving notification
of the breach, permittee shall contact the Public Works Director with
a plan, acceptable to the Public Works Director, for correction of
the breach. Permittee's failure to contact the Public Works Director,
permittee's failure to submit an acceptable plan, or permittee's failure
to reasonably implement the approved plan shall be cause for immediate
revocation of the right-of-way permit.
(c)
If a right-of-way permit is revoked, the permittee shall also reimburse
the City for, the City's reasonable costs, including administrative
costs, restoration costs and the costs of collection and reasonable
attorneys' fees incurred in connection with such revocation.
(a)
Any excavation, back filling, repair and restoration, and all other
work performed in the right-of-way shall be done in conformance with
the City's Manual of Infrastructure Standards 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 back-filling
on any street cut. The permittee shall pay all costs associated with
such testing. This provision shall be waived when flowable fill is
used as backfill or with the permission of the Public Works Director.
(c)
The permittee shall notify the office of the Public Works Director
upon completion of the authorized work permit.
(d)
The permittee will notify the Public Works Director to schedule an
inspection at the start of back filling. Upon completion of all right-of-way
restoration activities, the permittee will schedule a closeout inspection.
(e)
When any corrective actions required have been completed and inspected
to the Public Works Director's satisfaction, the two-year maintenance
period will begin.
(f)
In addition to the required scheduled inspections, the Public Works
Director may choose to inspect the ongoing permitted work in the right-of-way
at any time to ensure that all requirements of the approved permit
are being met by the permittee.
(g)
At the time of any 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 citation to the permittee for any work,
which does not conform, to the applicable standards, conditions, code
or terms of the permit. The citation shall state that failure to correct
the violation will be cause for revocation of the permit.
[Amended 1-3-2017 by Ord. No. 213]
(a)
Whenever a person shall deem themselves aggrieved by any decision
or action taken by the Public Works Director, the person may file
an appeal to the governing body within 10 calendar days of the date
of notice of such decision or action, provided this section shall
not apply to any person who is availing themselves of the appeal provisions
set forth in K.S.A. 66-2019(h)(6), as amended.
(b)
The person shall be afforded a hearing on the matter before the governing
body within 30 days of filing the appeal.
(c)
In cases of applicability or interpretation of the rules, the governing
body may revoke such decision or action taken by the Public Works
Director.
(d)
In cases where compliance with such decision or action taken by the
Public Works Director would cause undue hardship, the governing body
may extend the time limit of such decision or action, or may grant
exceptions to, or waive requirements of, or grant a variance from,
the specific provisions of rules. The governing body shall give due
consideration to the purposes of the rules in preserving public safety
and convenience, integrity of public infrastructure, and the operational
safety and function of the public right-of-way.
(e)
Pending a decision by the governing body, the order of the Public
Works Director shall be stayed, unless the Public Works Director determines
that such action will pose a threat to public safety or the integrity
of the public infrastructure.
(f)
If a person still deems themselves aggrieved after the appeal to
the governing body, such person shall have 30 days after the effective
date of the governing body's final decision to institute an action
in the District Court of Johnson County, Kansas.
(a)
A ROW user operating under the provisions of this ordinance shall
fully indemnify, release, defend and hold harmless the City and agents
of the City when acting in their capacity as municipal officials,
employees and agents, from and against any and all claims, demands,
suits, proceedings, and actions, liability and judgment by other persons
for damages, losses, costs, and expenses, including attorney fees,
to the extent caused by negligent acts or omissions of the ROW user
in the performance of the permitted work. The City agrees to timely
notify the ROW user of such claim, demand, suit, proceeding, and/or
action by providing written notice to the ROW user and the registered
agent of the ROW user. Nothing herein shall be deemed to prevent the
City, or any agent from participating in the defense of any litigation
by their own counsel at their own expense. Such participation shall
not under any circumstances relieve the ROW user from its duty to
defend against liability or its duty to pay any judgment entered against
the City, or its agents.
(a)
Each and every provision hereof shall be subject to acts of God,
fires, strikes, riots, floods, war and other circumstances beyond
the ROW user's or the City's control.
(a)
This ordinance shall be construed in a manner consistent with all
applicable federal, state, and local laws. Notwithstanding any other
provisions of this ordinance to the contrary, the construction, operation
and maintenance of the ROW user's facilities shall be in accordance
with all laws and regulations of the United States, the state and
any political subdivision thereof, or any administrative agency thereof,
having jurisdiction. In addition, the ROW user shall meet or exceed
the most stringent technical standards set by regulatory bodies, including
the City, now or hereafter having jurisdiction. The ROW user's rights
are subject to the police powers of the City to adopt and enforce
ordinances necessary to the health, safety, and welfare of the public.
The ROW user shall comply with all applicable laws and ordinances
enacted pursuant to that power. Finally, failure of the ROW user to
comply with any applicable law or regulation may result in a forfeiture
of any permit, registration or authorization granted in accordance
with this ordinance.
(a)
If any section, subsection, sentence, clause, phrase, or portion
of this ordinance 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.
(a)
The City's failure to enforce or remedy any noncompliance of the
terms and conditions of this ordinance or of any permit granted hereunder
shall not constitute a waiver of the City's rights nor a waiver of
any person's obligation as herein provided.
(a)
Any person or entity violating any provision of this chapter is guilty
of a public offense, and upon conviction thereof shall be fined in
a sum of not less than $200 nor more than $500. Every day that this
chapter is violated shall constitute a separate offense.
(b)
The violation of any provision of this ordinance is hereby deemed
to be grounds for revocation of the permit and registration to operate
with the City.
(c)
The City shall have the authority to maintain civil suits or actions
in any court of competent jurisdiction for the purpose of enforcing
the provisions of this ordinance. In addition to any other remedies,
the City Attorney may institute injunction, mandamus or other appropriate
action or proceeding to prevent violation of this Ordinance.
(a)
In addition to any rights specifically reserved to the City by this
ordinance, the City reserves unto itself every right and power which
is required to be reserved by a provision of any ordinance under any
registration, permit or other authorization granted under this ordinance.
The City shall have the right to waive any provision of this ordinance
or any registration, permit or other authorization granted thereunder,
except those required by federal or state law, If the City determines
as follows: (a) that it is in the public interest to do so; and (b)
that the enforcement of such provision will impose an undue hardship
on the person. To be effective, such waiver shall be evidenced by
a statement in writing signed by a duly authorized representative
of the City. Further, the City hereby reserves to itself the right
to intervene in any suit, action or proceeding involving the provisions
herein.
(b)
Notwithstanding anything to the contrary set forth herein, the provisions
of this Ordinance shall not infringe upon the rights of any person
pursuant to any applicable state or federal statutes, including, but
not limited to the right to occupy the right-of-way.
(a)
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 ordinance shall not take
effect or become in force until the requirements for adopting an ordinance
as set forth in the City of Mission Woods Municipal Code have occurred.
