Unless otherwise expressly stated or the context clearly indicates a different intention, the following terms shall, for the purposes of this chapter, have the meaning indicated in this section:

(a)   Aesthetic corridor – means the right-of-way adjacent to Andover Road from Kellogg/U.S. Highway 54 north to 13th Street within the City.

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

(c)   Occupant – means any person, firm, corporation, association, utility, or entity which enters upon the right-of-way of the City, or in any manner establishes a physical presence on, upon, in or over the right-of-way of the City, for the purpose of installing, constructing maintaining or operating any utility facility.

(d)   Facility – means any utility lines, conduits, wires, fiber optic wires, cables, pipes, pipelines, towers, wireless or cellular facilities, including small wireless facilities, antennae, vaults or appliances, or related facilities or appurtenances thereto.

(e)   Small wireless facility – means any small wireless facility as defined under Sections 253 and 332 of the Communications Act (47 U.S.C. § 253; 47 U.S.C. § 332).

(Ord. 851, Ord. 460 Secs. 1:4; Ord. 1658; Ord. 1697; Ord. 1825)

No person, firm, corporation, association, utility, or entity shall enter upon the right-of-way of the City, or in any manner establish a physical presence on, upon, in or over the right-of-way of the City, for the purpose of installing, constructing, maintaining or operating facilities without the express written permission of the City. The permission of the City may be given by a franchise granted pursuant to the provisions of Kansas law or by such other agreement as the governing body determines best protects the public interest in the right-of-way, and subject to the provisions of the Code.

(Ord. 621; Ord. 851; Ord. 1658; Ord. 1697)

The Director of Public Works is the principal City official for administration of right of way permits for work and excavations made in the right-of-way.  The Director of Public Works may delegate any or all of the duties hereunder.

(Ord. 1658)

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

(Ord. 1658)

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

(Ord. 1658)

(a)   The installation, construction, operation, maintenance, and repair of facilities in the right-of-way shall be in accordance with applicable health, safety and construction codes as well as those standards promulgated by the Director of Public Works, as the same may be considered and approved by the governing body from time to time.

(b)   All facilities shall be installed and located with due regard for minimizing interference with the rights and convenience of property owners, including the City.

(c)   No occupant shall place facilities where they will damage or interfere with the use or operation of previously installed facilities or obstruct or hinder other utilities serving the residents and businesses in the City.

(d)   Except for small wireless facilities as provided herein, no occupant may install, construct, maintain, or operate any facilities within the aesthetic corridor unless such facilities are completely underground.

(e)   Subject to all other requirements of the Code, antennae for small wireless facilities may be installed, maintained, and operated in the aesthetic corridor so long as:

(1)   Such antennae are installed only on existing light and traffic signal poles (or similar replacements therefore) and any wire or fiber connection to and from such antennae are similarly attached along or within such pole to the ground and facilities buried under ground;

(2)   No wires or fiber are attached from pole to pole above ground;

(3)   Such small wireless facilities are constructed and installed in conformance with the following aesthetic standards:

(A)  The width of such facilities shall not exceed the diameter of the pole at its base except for necessary above ground service boxes necessary for operation thereof.

(B)  Such facilities shall (as nearly as possible) match the color of the poles to which they are attached.

(4)   All other small wireless facilities and appurtenances thereto are installed and constructed underground.

(Ord. 1658; Ord. 1697)

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

(Ord. 1658)

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

(Ord. 1658)

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

(Ord. 1658)

Any occupant who has abandoned the use of any facilities in any public right-of-way shall remove all such facilities immediately unless such removal would cause unnecessary disruption and destruction to existing facilities or the right-of-way. For the purposes of this Chapter, “abandoned facilities” shall mean any facilities that have not been used for the purpose for which they were constructed over a continuous period of 12 months. Upon notification of the occupant by the City of the apparent abandonment of facilities the occupant shall have 60 days to remove or otherwise remedy the situation to the satisfaction of the City.

(Ord. 1658)

(a)   Except as provided for herein, no person, firm, corporation, association, utility, or entity other than City employees shall dig or excavate any hole, ditch, trench or tunnel on, upon, or below any street, alley, sidewalk, park or other public property or public easement through private property without first having secured a permit for such excavation. Application for such permit shall be made to the Director of Public Works.

(b)   This section shall not be applicable to normal landscaping activities involving the installation of lawn irrigation systems, planting of flowers, shrubs, trees or the placement of mailbox posts to a depth of 24 inches or less and shall not be applicable to such excavations as the Director of Public Works determines unlikely to cause damage to public improvements.

(c)   No permit authorized in this article shall be used until the applicant has given the City a good and sufficient bond or other surety approved by the Director of Public Works conditioned that the applicant will faithfully comply with all their terms and conditions of this article, and will indemnify and hold the City harmless against all costs, expenses, damages and injuries by persons or by the City sustained by reason of the carelessness or negligence of the permit holder. No surety for this purpose shall run for longer than two years without being renewed. The surety shall remain in full force and effect as to each excavation for two years after the same has been made or completed.

(d)   Any utility operating under a franchise or a contractor under contract with the City for municipal improvement shall not be required to give bond as provided, except to the extent otherwise required by Kansas law.

(e)   If the application for permit is approved by the City, the Director of Public Works shall issue a permit upon payment of a fee of $40.00. Each permit issued under the provisions of this section shall cover only one specified excavation. Any contractor under contract with the City for the construction of municipal improvements shall be exempt from the payment of the inspection fee provided for herein.

(f)    The violation of any provision of this section is hereby deemed grounds for revocation of the excavation permit.

(Ord. 1658)

(a)   Any person, firm, corporation, association, utility, or entity to whom an excavation permit is issued shall enclose all excavations which they make with sufficient barricades and danger signs at all times, and shall maintain sufficient warning lights or flares at night time. The holder of an excavation permit shall take all necessary precautions to guard the public against all accidents from the beginning of the work to the completion of the same.

(b)   It shall be unlawful for any person, except those having authority from the City or any officer thereof to throw down, interfere with or remove any barriers, barricades, or lights placed to guard and warn the public of any construction work thereon or adjacent thereto.

(Ord. 1658)

(a)   No person shall walk upon, drive or ride over or across any right-of-way (including unopened pavement, sidewalk or incomplete grading) if the same has not been opened for such traffic unless authorized by permit, franchise, state law or with the consent of the office of the Director of Public Works.

(b)   No person, firm, corporation, association, utility, or entity other than City employees may place, maintain, or allow any obstruction such as, but not limited to, basketball goals, skateboard ramps, soccer or hockey goals, unauthorized signs, fences, posts other than mailboxes, structures, trash dumpsters, piled materials, hay bales, equipment, retaining walls, rocks or boulders, goods or materials for sale, or any other items that interfere with the safe use or maintenance of the right-of-way, other than those specifically permitted by this Code, state law or rule, or by written approval of the office of the Director of Public Works.

(c)   No person, firm, corporation, association, utility, or entity shall rake, sweep, throw, push, or otherwise move leaves, grass, dirt, paper, debris, snow, ice or any other material into the streets, gutters, drains, or drainage ditches along the sides of any street or alley in the City.

(d)   No person, firm, corporation, association, utility, or entity other than City employees shall paint or otherwise permanently mark the streets, sidewalks, or public improvements within the right-of-way without permission.

(Ord. 1658)

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

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

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

(Ord. 1658)

All persons, firms, corporations, associations, utilities, or entities shall promptly advise the City in writing of any known claim or demand against the provider or the City related to or arising out of the person, firm, corporation, association, utility, or entity’s activities in a public right-of-way.

(Ord. 1658)

The City’s failure to enforce or remedy any noncompliance with the terms and conditions of Sections 17-101 through 17-116 of the Code, or of any permit granted thereunder shall not constitute a waiver of the City’s rights nor a waiver of any person’s obligation as herein provided. Any person found to be in violation of the provisions of the same shall, upon conviction, be sentenced to pay a fine not exceeding $500.00 and or sentenced to the county jail for a term not to exceed 30 days. Each day’s violation shall constitute a separate offense.

(Ord. 1658)