Building & Zoning Department
215 S. Broadway, Louisburg, KS 66053 · 913-837-5811 · louisburgkansas.gov
rwhitham@louisburgkansas.gov
RIGHT-OF-WAY (ROW) APPLICATION
SECTION 1 SCOPE OF WORK (APPLICANT)
Date of Application: _____________ Permit #: __________________ Kansas One-Call Ticket #: _____________
Purpose: (check all that apply) ______ New Construction _____ Repair/Upgrade/Move Existing Facility
Installation Method: (check all that apply) _____ Open Cut _____ Directional Drill/Bore _____ Neither
Area to be excavated by Open-Cut method: (check all that apply)
_____ Street _____ Sidewalk _____ Residential Drive _____ Commercial Drive _____Grass/Sod
Project Scope: (provide all requested information or indicate N/A = not applicable)
Length: _____ (feet) Size of Pipe/Conduit: _____ (inches)
Number of Structures/Poles/Pedestals: _____
Project Location and/or Street Address: __________________________________________________________________
If linear installation: from ________________________ to ________________________ on ________________________
Will street closure be required while work is being completed: _____ Yes _____ No
Work Schedule: start date: __________ finish date: __________
SECTION 2 ATTACHMENTS (APPLICANT)
Performance and Maintenance Bond: _____ Attached _____On File _____N/A
Certificate of Liability Insurance: _____ Attached _____On File _____N/A
Drawings/Plans: _____ Attached _____On File _____N/A
Traffic Control Plans: (if required) _____ Attached _____On File _____N/A
SECTION 3 CONTRACTOR AND UTILITY INFORMATION (APPLICANT)
Contractor/Subcontractor Performing Work Service Provider/Owner Authorizing Work
Name: _______________________________________
Address: _____________________________________
City: ____________________ State: ____ ZIP ________
Contact: ______________________________________
Office Phone: __________________________________
Mobile Phone: _________________________________
Emergency Phone: _____________________________
Email: ________________________________________
Fax: _________________________________________
Name: _______________________________________
Address: ______________________________________
City: ____________________ State: ____ ZIP ________
Contact: ______________________________________
Office Phone: __________________________________
Mobile Phone: _________________________________
Emergency Phone: _____________________________
Email: ________________________________________
Fax: _________________________________________
CERTIFICATION: I certify that I have read and understand the City of Louisburg Right-of-Way and Utility Management Code and agree to
complete all work in accordance to the provisions set forth therein. I agree to call the appropriate department at least 24 hours in advance to
schedule any inspections. Failure to replace the street, curb, gutter, sidewalk or any other area disturbed by work performed that is authorized
or unauthorized by this permit to the satisfaction of the City can result in my liability to replace said improvements at my own expense.
Authorized Signature: ___________________________
Print Name: ___________________________________
Title: _________________________________________
Date: ________________________________________
SECTION 4 OFFICE USE
P&M BOND Bond No: ___________________________
CERT OF INS Exp Date: __________________________
Permit Fee Received: $__________________________
Waivers
(attached completed and approved waiver form)
Bond _____ Insurance _____ Plans/Maps _____
Other: _______________________________________
Surety Co.: ____________________________________
Ins. Co.: ______________________________________
Check No.: ____________________________________
APPROVED SIGNATURE: _________________________
PUBLIC WORKS: _______________________________
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City of Louisburg,
Kansas
Right-of-Way
and Utility Management
2013
Edition
Adopted by
Ordinance
No.
Code of the City of Louisburg
Chapter XV Utilities
Article 8 Right-of-Way and Utility
Management
The City of Louisburg
,
KS
Right-of-Way
and Utility Management
2013 Edition
2
S
ection
1
Section 2
Section 3
Section 4
Section
5
Section
6
Section
7
Section
8
Section
9
Section
10
Section
11
Section 12
Section 13
Section 14
Section 15
Section 16
Section
17
Section 18
Section
19
Section 20
Section
21
Section 22
Section 23
Section 24
Section 25
Section 26
Section 27
Section 28
Section 29
Section
30
Section 31
Section 32
Section
33
Section
34
Section
35
Section 36
Appendix
General 3
Purpose
3
Definitions
3
Policy
5
Administration
6
Requirements of Service Provider
6
Mapping
Requirement
of Service Provider
8
Service
Provider's
Right to Sell, Transfer, Lease, Assign, Sublet
8
or
Dispose
Use of the
Right-of-Way
8
Facility
Relocation
10
Protection of the Public
11
Right-of-Way Vacation
12
Abandoned and
Unusable
Facilities
13
Permit
Requirement
13
Permit
Applications
14
Liability
Insurance, Performance
and
Maintenance
Bond
15
Requirement
Right-of-Way
Permit Fees and Costs
16
Issuance of Permit
16
Permitted Work
16
Right-of-Way
Repair and
Restoration
18
Joint
Applications
19
Supplementary
Applications
20
Other
Obligations
20
Denial of Permit
20
Revocation of Permit
21
Work
Requirements
and
Inspections
22
Appeals Process
22
Indemnification
23
Force Majeure
23
Federal, State, and City
Jurisdiction
24
Severability
24
City's
Failure to Enforce
24
Penalties
24
Reservation of Rights
24
Waivers or
Exemptions
25
Fees
25
ROW Permit and Waiver Forms
The City of Louisburg
,
KS
Right-of-Way
and Utility Management
2013 Edition
3
Code of Ordinances, Chapter XVI; Article 8 Right-of-Way and Utility Management
MANAGING THE USE AND OCCUPANCY OF PUBLIC RIGHT-OF-WAY
FOR
THE CITY OF LOUISBURG,
KANSAS
SECTION 1:
GENERAL
No Person shall excavate the Right-of-Way, construct, use or maintain the
Facilities
within the Right of-Way of the City except as provided
herein.
SECTION 2:
PURPOSE
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;
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; 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; to treat each
ROW-user
equitably and in a
competitively neutral and nondiscriminatory manner
with
considerations
that may be
unique to the technologies and situation of each
particular
ROW-user; to minimize
disruption, visual impact or inconvenience to the public, and
to
preserve the public health,
safety and welfare; and to comply with state and
federal
legislation.
SECTION 3:
DEFINITIONS
For purposes of this Code, the following words and phrases shall have the meaning
given
herein:
"Abandoned Facilities" means those Facilities owned by the ROW-user that are not
in
use and will not be utilized by the owner in the
future.
"Affiliate" means any Person controlling, controlled by or under the common control of
a
Service
Provider.
"Applicant" means any Person requesting permission to occupy, lease or
operate
Facilities using the Right-of-Way, or to excavate the
Right-of-Way.
"Area of Influence" means that area around a street excavation where the pavement
and
sub-grade is impacted by the excavation and is subject to more rapid
deterioration.
"City"
means the City of Louisburg, Kansas, a municipal corporation and any
duly
authorized
representative.
"City Engineer" means the City Engineer, Louisburg, KS, or their
authorized
representative.
"Code" means the adopted Right-of-Way Usage Code and any additions or
amendments
therein.
"Construct" means and includes construct, install, erect, build, affix or otherwise
place
any fixed structure or object, in, on, under, through or above the
Right-of-Way.
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The City of Louisburg
,
KS
Right-of-Way
and Utility Management
2013 Edition
"Emergency" means a condition that: (a) poses a clear and immediate danger to life
or
health
or of a significant loss of property; or (b) requires immediate repair or
replacement
in order to
restore service to a
user.
"Excavate" means and includes any cutting, digging, excavating, tunneling,
boring,
grading
or other alteration of the surface or subsurface material or earth in the
Right-of- Way.
"Excavation Fee" means the fee charged by the City for each street or pavement
cut
which is intended to recover the costs associated with construction and repair activity
of
the ROW-user, its contractors and/or
subcontractors.
"FCC"
means Federal Communications
Commission.
"Facility" means lines, pipes, irrigation systems, wires, cables, conduit facilities,
ducts,
poles, towers, vaults, pedestals, boxes, appliances, antennas, transmitters, gates,
meters,
appurtenances, or other equipment. Facility shall also include driveways,
sidewalks,
fences, and other improvements located in the
Right-of
-
Way.
"Governing Body" means the Mayor and the City Council of the City of Louisburg
,
Kansas.
"Governmental
Entity" means 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
or of the
United
States.
"KCC” means the Kansas Corporation
Commission.
"Maintain" means any work that would excavate, damage, or alter the
Right-of-
Way.
"Parkway" means the area between a property line and the street curb; also referred to
as
a
boulevard, tree shelf or snow
shelf.
"Pavement" means and includes Portland cement concrete pavement, asphalt
concrete
pavement, asphalt treated road surfaces and any aggregate base
material.
"Permit and
Inspection
Fee" means the fee charged by the City to recover its
cost
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 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
Code.
"Person" means 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.
"Public
Improvement"
means 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, street lights, public facilities, public buildings or
public
lands.
"Public Lands" means any real property of the City that is not
Right-of
-Way.
"Registration" means 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
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The City of Louisburg
,
KS
Right-of-Way
and Utility Management
2013 Edition
the Right-of-Way within the City to provide service both within and beyond the
City
limits.
"Repair" means the temporary construction work necessary to make the
Right-of-
Way
useable.
"Repair and
Restoration
Costs" means those costs associated with repairing
and
restoring the public Right-of-Way because of damage caused by the ROW-user,
its
contractors and/or subcontractors in the
Right-of
-
Way.
"Restoration" means 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
(ROW)" means the area on, below or above streets, alleys, bridges
and
parkways. Right-of-Way also includes any easements owned or controlled by the
City.
The term does not include the airwaves above a right-of-way with regard to
wireless
telecommunications or other non-wire telecommunications or broadcast
service.
"Right-of-Way
Permit" means the authorization to excavate for the
construction,
installation, repair or maintenance of any type of Facility within the
Right-of-Way.
"Routine Service Operation" means a work activity that makes no material change
to
the Facilities and does not disrupt
traffic.
"ROW-user" means a Person, its successors and assigns, and contractors and
sub-
contractors, that uses the Right-of-Way for purposes of work, excavation, provision
of
services, or to install, construct, maintain, 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
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 ROW-user shall not include any
Person
performing regular or routine maintenance or tree-trimming, as may be required
under
Chapter 8 Article 4 or Chapter 13 Article 6 of the Code of Ordinances, in any ROW
or
easement property which directly adjoins said Person's
property.
"Service" means 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,
alarm
systems,
steam, electric, water, telegraph, data transmission, petroleum pipelines,
or
sanitary
sewerage.
"Service Provider" means any Person owning, possessing or having an interest
in
Facilities in the Right-of-Way that are used for the provisions 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.
"Street" means the pavement and sub-grade of a City residential, collector or
arterial
roadway.
SECTION
4:
POLICY
A. It is the policy of the City to authorize any ROW-user to utilize the Right-of-Way in
a
competitively neutral,
non-discriminatory
manner that maximizes the efficient use of
and
conserves the Right-of-Way and minimizes
the
burden on the Right-of-Way,
physically
and
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The City of Louisburg
,
KS
Right-of-Way
and Utility Management
2013 Edition
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 Code. These rights are
for
the
exclusive use of the ROW-user except where otherwise provided herein, or
when
authorized
by the
City.
C. This Code 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. 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.
D. 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.
SECTION 5:
ADMINISTRATION
The City Manager is the principal City official for administration of
Right-of-Way
permits
for work and excavations made in the Right-of-Way as well as the principal
City
official
responsible for administration of the registering of a Service Provider. The
City
Manager
may delegate any or all of the duties hereunder.
SECTION 6: REQUIREMENTS OF SERVICE PROVIDER
A. Any existing Service Provider must register within ninety (90) 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
Code 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
thirty (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.
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The City of Louisburg
,
KS
Right-of-Way
and Utility Management
2013 Edition
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. 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 Code. 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 City's Public Works Director
or
their Designees. 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.
The City shall not exercise its authority under this provision to in any way
deter
competition or discriminate against any service
provider.
L. The Service Provider shall be responsible for any work performed by
sub-contractors
on its behalf. The City shall be notified of all sub-contractors working on behalf of
a
Service Provider prior to or concurrent with the
sub-contractor's
beginning
performance.
This notification shall include the
sub-contractor's
name, contact person, phone
number,
emergency phone number and verification of insurance
coverage.
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The City of Louisburg
,
KS
Right-of-Way
and Utility Management
2013 Edition
SECTION 7: MAPPING REQUIREMENT OF 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. These records shall also be provided to the
City.
B. Within ten ( l0) days of a request by the City, the Service Provider will provide to
the
City
information concerning the location such Facilities as may be reasonably
requested.
C. Underground Facilities shall be differentiated from overhead
Facilities.
D. Such mapping and identification shall be at the sole expense of the service
provider.
SECTION 8: SERVICE
PROVIDER'S
RIGHT TO SELL,
TRANSFER,
LEASE,
ASSIGN, SUBLET
OR
DISPOSE
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.
B. 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.
C. No notice to the City shall be required for a transfer in trust, mortgage, or other
simila
r
instrument, in whole or in part, to secure an indebtedness, or for
a
pro forma transfer
t
o
a
corporation, partnership, or other entity controlling, controlled by or under commo
n
control
with the service
provider.
SECTION 9: USE OF THE RIGHT-OF WAY
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. The City may reserve sufficient
space
within the
Right-of-Way for future public improvements. 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
which
minimizes adverse impact on any public improvement, as reasonably determined by
the
Public Works Director or their Designees. 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
by the
City.
C. The ROW-user shall comply with any requirement made by the Public Works
Director
or
their Designees concerning placement of Facilities
in
private easements in order to limit or
eliminate future street improvement or other
public
improvements relocation expenses as long
as the request is technically
feasible.
D. All Facilities shall be located and constructed 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 Right-of-
Way or other public lands of the
City.
The City of Louisburg
,
KS
Right-of-Way
and Utility Management
2013 Edition
9
E. All Facilities of the ROW-user shall be placed so that they do not interfere with
the
use of Right-of-Way and public lands. The City 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 Public Works Director
or
their Designees relating to
underground Facilities. This requirement may be waived
by
the
City Manager or his
Designee, at his discretion for safety concerns, or some
other
good
cause under the
condition that does not cause discrimination among ROW-users.
If
this requirement is
waived, the Facilities shall be located as directed by the Public
Works
Director or their
Designees including, but not limited
to,
requirements regarding location and
height.
G. If above ground Facilities or appurtenances are required, then such Facilities shall
be
placed in the least obtrusive, most aesthetically pleasing location, as determined by the
City
Manager or his Designee. The preferred location for above ground Facilities shall be
at
the
comer in back of the property or the side of the
property.
H. 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, subject to the appeal process contained in this Code as outlined by the
Appeals
Process in Section 27 of this
Code.
I.
The City Manager, Public Works Director or
their
Designees 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 City expects will someday be located within
the
Right-of-Way. All Right-of-Way
permits issued by the City shall indicate the
proper
corridor for the ROW-user's
Facilities. Any ROW-user whose Facilities are currently
in
the Right-of-Way that are not
within 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 for good cause shown, upon consideration of factors including,
but
not
limited to, the remaining economic life of the Facilities, public safety, user
service
needs and
hardship to the
ROW-user.
J. If the Public Works Director, or their Designees deem
it
appropriate for a conduit to
be constructed along, across or under the Right-of-Way,
the
Public Works Director or
their Designees shall notify
all
appropriate ROW-users. If a ROW-user desires to
construct, maintain or
operate
Facilities along such Right-of-Way, the Public Works
Director or their Designee may require the ROW-user to use the conduit, and to
contribute to
the
expense of such conduit, provided that the ROW-user's use of the
conduit is
reasonable
and appropriate under the
circumstances.
K.
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. The City Manager, Public Works Director, or their Designees can
require that the City replace any sidewalk,
paving,
crossings, utilities, or other public
improvements that are damaged by the ROW-user
and
the ROW-user shall be billed for the
The City of Louisburg
,
KS
Right-of-Way
and Utility Management
2013 Edition
10
City's cost. Upon determination by the
City
Manager, Public Works Director or their
Designee that
such
repair or replacement is a public safety matter, all such repair or
replacement shall
be
commenced within twenty-four (24) hours of notice from the City, or
the City
Manager,
Public Works Director or their Designee may direct that
the
City shall
make such repair or replacement and bill the ROW-user for the City cost.
The
City
Manager, Public Works Director or their Designees
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.
L. 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 then current 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
Code may be in addition to or stricter than such minimum
standards.
M
.
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 City and having received
a
permit for
such
improvement.
The City 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.
N. 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
expense of the ROW-user without any expense to the City, its employees, agents,
or
authorized
contractors.
0.
The City shall have the authority to prohibit the use or occupancy of
a
specific
portion
of the Right-of-Way by a ROW-user due to public health, safety, welfare, or location
of
existing utilities
considerations.
SECTION 10: FACILITY RELOCATION
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 at due diligence upon notice by
the
City to begin
relocation.
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B. 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 the
ROW-user's
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.
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
thirty (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
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.
SECTION 11: PROTECTION OF THE PUBLIC
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 grossly 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, 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 Code 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
public
improvements.
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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 by this Code, MUTCD marking requirements, and/or at the direction of
the
Public
Works Director or their
Designee.
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
legal
and
proper barricades, plates, safety fencing, lights, and/or any other MUTCD
marking
requirements as required from the time of opening of the excavation until the
excavation
i
s
surfaced and opened for
travel.
H. The City, 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 the branches of such trees from coming
in
contact with the Facilities of the ROW-user. The ROW-user must follow all
applicable
City
ordinances and best practices when tree
trimming.
I.
The Public Works Director or
their
Designees, in his 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
fifteen
(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.
SECTION 12: RIGHT-OF-WAY VACATION
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
Facilitie
s
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
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Provider or the City, such other Person must pay the relocation
costs.
SECTION 13: ABANDONED AND UNUSABLE FACILITIES
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 City may allow underground Facilities
or
portions thereof remain in place if the Public Works Director or their Designees
determines that it is in the best interest of public
safety
to do so. At such time, the
City may, at its option, take ownership
and
responsibilit
y
of such vacated Facilities
left in place, subject to the provisions
of
paragraph 3, below;
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, require the ROW-user, at its own expense, to remove the facility,
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 who's
Facilities
remain unused for two (2) years, shall be deemed to be abandoned thirty (30) days
after
the City has made a good faith effort to contact the ROW-user, unless the City
receives
confirmation within that time frame that the ROW-user intends to use or transfer
the
Facilities within sixty (60) days, and such use or transfer does in fact begin within
said
sixty (60) day period. 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:
1. abating the
nuisance;
2. taking possession and ownership of the Facility and restoring it to a
useable
function and charging the costs of such action against the Service Provider
or
ROW-user;
or
3. requiring the removal of the Facility by the ROW-user or Service Provider
at
its sole
expense.
C. Any Service Provider who willfully abandons Facilities and does not remove
them
shall be barred from receiving any further Right-of-Way permits within the City limits
of
Louisburg for a period of five (5) years from the date the Facilities were
deemed
abandoned.
SECTION 14: PERMIT REQUIREMENT
A. Except as otherwise provided, no ROW-user or their agents may excavate any
Right-
Of-Way or conduct any repair, construction, movement or relocation, or reconstruction
of
Facilities located within the Right-of-Way without first having obtained the
appropriate
Right-
of-Way
permit.
B. There are four exemptions to this
provision:
1. Contractors working on the construction or reconstruction of
public
improvements at the direction of the City, State, or Federal
government.
2. ROW-users performing routine service operations which do not
require
excavation
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in the Right-of-Way and
do
not disrupt traffic for more
tha
n
four
(4)
hours.
3. Sub-contractors working under a Service
Provider's
permit and
supervision.
4. Contractors working on new construction and have an approved
development
plan
and a new construction
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 ROW-user may excavate the Right-of-Way beyond the date or dates specified
in
the
Right-of-Way permit unless the
ROW-user:
1. Sends notification of a need for an extension to the City. All requests
must
include the new dates of construction and must be approved by the Public
Works
Director or their
Designees
2. A new Right-of-Way permit is
granted.
F. Any Right-of-Way permit issued shall be conspicuously displayed by the ROW-user
at
all
times at the indicated work site and shall be available for inspection by the
City
Engineer,
other City employees and the
public.
G. Prior to the commencement of excavation, the ROW-user shall identify and locate
any
buried Facilities to be spray painted and/or flagged according to the Uniform Color
Code
required by the Kansas One
Call.
H. The Applicant must show proof of all necessary permits, occupational
licenses, City of
Louisburg Excavator License,
professional licenses, certifications, grants, registrations,
franchise agreements or
any
other authorizations required by any appropriate governmental
entity, including, but
not
limited to, the City, the FCC or the KCC before issuance of a
Right-of-Way
Permit.
I.
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, subject to the penalties assessed in Section 17(C). The only exception
allowed
is
for emergency repair
work.
J. Any ROW-user found to be working without providing for required federal, state,
and
local 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.
SECTION 15: PERMIT APPLICATIONS
A. Application for a Right-of-Way permit shall be submitted to the City by either
the
ROW-
user or by the Person who will do the work and/or excavation in the
Right-of-Way.
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
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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
action
s
taken by the City, unless the payment of such money is in dispute
and
timely
appealed as provided
hereafter.
SECTION 16: LIABILITY INSURANCE, PERFORMANCE AND MAINTENANCE
BOND
REQUIREMENT
A. The ROW-user shall file with the City evidence of commercial general
and
automobile liability insurance with an insurance company licensed to do business
in
Kansas. The general liability limit will be not less than one million dollars
($1,000,000)
per occurrence and two million dollars ($2,000,000) in aggregate. The
automobile
liability limit will not be less than one million dollars ($1,000,000) combined single
limit.
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
ROW-user. If the ROW-user 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 ROW-user shall, at all times during the term of the construction permitted
under
this Code maintain a Performance Bond, in a form approved by the City Attorney.
The
amount of the bond required for a Right-of-Way permit will be $2,000 or the value of
the
restoration as determined by the City, whichever is greater, for a term consistent with
the
term of the permit The ROW-user may, with the approval of the City Attorney, obtain
a
Performance and Maintenance Bond as long as such instrument meets the
requirements
herein.
C. The ROW-user shall maintain a maintenance bond for two (2) years for any
work
performed in the ROW, in a form approved by the City Attorney. The amount of the
bond
required for a Right-of-Way permit will be $2,000 or the value of the restoration
as
determined by the City, whichever is greater, for a term consistent with the term of
the
permit plus two additional years, conditioned on the ROW-user's faithful performance
of
the provisions, terms and conditions conferred by this Code. Alternatively, if the
ROW-
user anticipates requirements for multiple Right-of-Way permits, the ROW-user
may
choose to meet the bond requirements as
follows:
1. 10 permits or less/year: $15,000 annual
bond
2. 25 permits or less/year: $30,000 annual
bond
3. Unlimited
permits/year:
$50,000 annual bond
D. Current copies of any required Liability Insurance Certificate, Performance Bond
and
Maintenance
Bond must be on file with the City
Clerk.
E. All Performance Bonds and
Maintenance
Bonds must cover all
contractors
and
sub-
contractors. The Service Provider may, with approval of the City Attorney,
provide
a
blanket
bond to cover all work
performed
in conjunction with this Code.
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F. No performance or
maintenance
bond will be required for permits issued for driveway
replacement,
landscaping work such as irrigation systems and tree planting or plumbing
connections
for new residential or commercial construction. 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.
SECTION 17: RIGHT-OF-WAY PERMIT FEES AND
COSTS
A.
The Right-of-Way permit fee and any other applicable fees shall be recommended by
the
City Manager, approved by the Governing Body and listed in the Schedule of
Fees
maintained
in the City Clerk's office.
B. Fees paid for a Right-of-Way Permit, which is subsequently revoked by the City,
are
not refundable.
C. Except as provided for in an emergency situation, a ROW-user who 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.
E. The City Manager may waive the ROW permit fee. A waiver request form must
be
completed by the ROW-user.
SECTION 18:ISSUANCE
OF
PERMIT
A. If the City determines that the Applicant has satisfied the requirements of this Code, the
City shall issue a Right-of-Way permit.
B. The City may impose reasonable conditions upon the issuance of a Right-of-Way permit and
the performance of the ROW-user 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 personal to the Applicant and 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 jointly and severally
liable
and
responsible for all damages, obligations, and warranties herein described.
SECTION 19: PERMITTED
WORK
A. The ROW-user 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 ROW-user shall not at any one time open or encumber more of the
Right-of-Way
than shall be reasonably necessary to enable the ROW-user to complete the project in
the
most expeditious
manner.
C. The ROW-user shall, in the performance of any work required for the
installation,
repair, maintenance, relocation and/or removal of any of its Facilities, limit
all
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excavations to those excavations that are necessary for efficient
operation.
D. The ROW-user shall not permit such an excavation to remain open longer than
is
necessary to complete the repair or
installation.
E. The ROW-user shall notify the City no less than seventy-two (72) hours 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 (2) lanes
of
moving
traffic for more than four (4) hours. Except in the event of an emergency
as
reasonably
determined by the ROW-user, no such closure shall take place without
notice
and prior
authorization from the
City.
F. 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
ROW-user's expense. Such signage shall be in conformance with the latest edition of
the
Manual on Uniform Traffic Control Devices, unless otherwise agreed to by the
City.
ROW-user must contact property owner(s) at least seventy-two (72) hours in advance
of
any work that would block entrance/exit to the property, unless such work constitutes
an
Emergency as outlined in this Code. This notification shall include the beginning
and
ending dates of
construction.
G. The ROW-user 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 the City's Utilities Department or to the
Public
Works Department with respect to any municipal traffic signal and street light systems,
as
appropriate.
H. The ROW-user 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
ROW-
user 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.
I. Whenever there is an excavation by the ROW-user, the ROW-user shall be
responsible
for providing adequate traffic control to the surrounding area as determined by the
City.
The ROW-user 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 ROW-user may be liable for actual damages to the City for delay caused by
the
ROW-
user pursuant to this
Code.
J.
All Facilities and other appurtenances laid, constructed and maintained by the
ROW-
user
shall be laid, constructed and maintained in accordance with acceptable
engineering
practice
and in full accord with any and
a11
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.
K. Following completion of permitted work for new construction, the ROW-user
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. The City Manager may waive this
requirement.
Such information shall be subject in all respects and shall have the benefit of
protection
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as set forth in the section entitled Mapping Requirements of Service Provider
contained
herein.
L. The City may use the as-built records of the Service Provider's Facilities
in
connection with public
improvements.
SECTION 20: RIGHT-OF-WAY REPAIR AND
RESTORATION
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.
I
n
the event of circumstances beyond the control of the ROW-user or
when
work
was prohibited by unseasonable or unreasonable conditions, the City
Manager,
Public
Works Director or their Designees may extend
the
date for completion of the project upon
request.
B. All earth, materials, sidewalks, paving, crossing, public improvement 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 the reasonable satisfaction of the
City.
Any
damaged water pipeline, sewer lines, sanitary/storm sewer, or other City utility
shall
be
repaired or replaced by the City at the sole expense of the ROW-user. The City
has
the authority to inspect the repair or replacement of the damage, and if necessary,
to
require the ROW-user to do the additional necessary work. The Service Provider shall
be
responsible for any damage to private service connections and any necessary repairs
to
damaged private service connections. Notice of the unsatisfactory restoration and
the
deficiencies found will be provided to the ROW-user and a reasonable time not to
exceed
fifteen days will be provided to allow for the deficiencies to be
corrected.
C. After any excavation, the ROW-user 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. All land areas which are to be unpaved or not covered by buildings shall be brought
t
o
finished grade and planted with turf or native grass or other appropriate ground cover.
The
City shall require additional landscaping or screening of any above ground facilities
or
appurtenances in order to maintain the aesthetic appeal or to mitigate the visual impact of
the
facilities at the sole expense of the
ROW-user.
E.
In addition
to repairing any street cuts, the ROW-user must restore any area
within
five (5) feet of the new street cut, including the paving, curbing, and its
aggregate
foundations.
F. If the ROW-user fails to restore the Right-of-Way in the manner and to the
condition
required by this Code, the City Manager, Public Works Director or their Designees, or fails
to satisfactorily and timely complete all
restoration
the City may, at its option, serve
written notice upon the ROW-user and its surety
that,
unless within five (5) 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 ROW-user, and the surety shall
have
the right to take over and complete the
work; provided, however, that if the surety
does no
t
commence performance thereof within
ten (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 ROW-user, and the ROW-
user and its surety shall be liable to the
City
for any and all excess cost assumed by the
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City by reason of such prosecution
and
completion.
G. The ROW-user responsible for the excavation that leaves 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.
H. If an excavation cannot be back-filled immediately and left unattended, the
ROW-user
shall securely and adequately cover the unfilled excavation. The ROW-user 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
opene
d
for
travel.
I. The ROW-user shall be required to dispose of any debris within seventy-two
(72)
hours after the Permitted work is complete. If the ROW-user fails to remove the
debris,
the City shall remove the debris and charge the expense to the
ROW-user.
J.
In
restoring the Right-of-Way, the ROW-user guarantees its work and shall maintain
it
for twenty-four (24) months following its completion. During the twenty-four
(24)
months the ROW-user shall, upon notification from the Public Works Director or their
Designees, correct all restoration work to the extent
necessary,
using any method as
required by the Public Works Director
or
their Designees. Said work shall be completed
within a reasonable time, not to
exceed
thirty (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
ROW-user is required to perform new restoration
pursuant to the foregoing
guarantee,
the Public Works Director or their Designees shall
have
the
authority to extend the guarantee period for such new restoration for up to an
additional
twenty-four (24) months from the date of the new restoration, if the Public
Works
Director or their Designees determines any overt action by
the
ROW-user not
to
comply with the conditions of the Right-of-Way permit and
any
restoration
requirements.
K. The twenty-four (24) month guarantee period shall be applicable to failure of
the
pavement surface as well as failure below the pavement
surface.
L. Payment of an excavation fee shall not relieve the ROW-user of the obligation
to
complete the necessary Right-of-Way
restoration.
M. The ROW-user shall be responsible for any damage and
the
cost of repairs to
any
private service
connection.
N. The ROW-user shall complete all work in accordance with current APWA
guidelines
as adopted and amended by the City. The ROW-user shall also complete all work
in
accordance with City, State, and Federal regulations and guidelines. The ROW-user
shall
use
best practices when performing any work within the
Right-of
-
Way.
SECTION 21: JOINT
APPLICATIONS
A. Applicants may apply jointly for permits to excavate the Right-of-Way at the
same
time and
place.
B. Applicants who apply jointly for a Right-of-Way permit may share in the payment
of
the permit fee. Applicants must agree among themselves as to the portion each shall
pay.
C.
All Applicants who are granted a joint Right-of-Way permit shall be jointly
and
severally
liable for the work that is completed and any necessary changes or repairs
that
may be
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required as outlined in this
Code.
SECTION 22: SUPPLEMENTARY
APPLICATIONS
A. A Right-of-Way Permit shall only be valid for the area of
the
Right-of-Way
specified
within the permit. No ROW-user may cause any work to be done outside the
area
specified
in the permit, except as provided herein. Any ROW-user who determines
that
a
n
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
ROW-user may commence work before the permit start date or, except as
provided
herein,
may continue working after the end date. If a ROW-user does not complete
the
work by
the permit end date, the ROW-user 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.
SECTION 23: OTHER
OBLIGATIONS
A. Obtaining a Right-of-Way permit under this Code shall not relieve the ROW-user
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 ROW-user
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 ROW-user 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 City, no Right-of-Way
work
may be done when conditions are unreasonable for such
work.
C. A ROW-user 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.
SECTION 24: DENIAL OF
PERMIT
A. The City 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 City Manager, Public
Works
Director or their Designees at his 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;
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3. The availability of other locations in the Right-of-Way or in other
Right-of-
Way for the Facilities of the
Applicant;
4. The applicability of any ordinance or other regulations that affect location
of
Facilities in the
Right-of
-
Way;
5. The degree of compliance of the applicant with the terms and conditions of
its
franchise, this Code, 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 interferes with an exhibition,
celebration,
festival, or any other event. In exercising this discretion, the City Manager,
Public
Works Director or their Designees shall be guided
by
the
safety and convenience of
anticipated travel of the public over the
Right-of-
Way.
B. Notwithstanding the above provisions, the City Manager may in his discretion 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 applicant's
service;
2. Allow such user to materially improve the service provided by the
applicant.
SECTION 25: REVOCATION OF
PERMIT
A. ROW-users hold Right-of-Way permits issued pursuant to this Code as a privilege
and
not as a right. The City reserves its right, as provided herein, to suspend and/or
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 1he permit
application;
4. The failure to maintain 1he required bond or
insurance;
5. The failure to complete 1he work in a timely
manner;
6. The failure to correct a condition indicated on an order issued pursuant to 1his
Code;
7. 2 or more traffic control violations;
or
8. Failure to repair Facilities damaged in the
Right-of-Way.
B. If the City Manager, Public Works Director or their Designees determine
that
the
ROW-user
has committed a substantial breach of any law
or
condition placed on the Right-of-Way
permit, the City shall make a written demand
upon
the
ROW-user to remedy such violation.
The demand shall state
that
the
continued
violation may be cause for suspension or revocation
of the permit, or legal action if
applicable.
Further,
a substantial breach, as stated above, will
allow the City
Manager,
Public Works Director or their Designees,
at
their
discretion,
to place
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additional or revised conditions on the Right-of-Way permit, specifically
related
to the manner
in which the breach is cured
by
the ROW-user.
Within
seventy-two
(72)
hours of receiving
notification of the breach, ROW-user shall contact the City
with
a
plan
,
acceptable to the City
Manager, Public Works Director or their Designees for correction of the
breach.
ROW-user's
failure to contact the City, ROW-user's failure to submit an acceptable
plan,
or ROW-user'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 ROW-user 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.
D. Any ROW-user that
has
a Right-of-Way
permit suspended shall pay two (2) times
the
amount of1he permit for any future Right-of-Way permits
.
E. Any ROW-user that
has
a Right-of-Way permit revoked shall be ineligible to
receive
another Right-of-Way permit for a period of five years (5) from the date the prior
permit
was
revoked.
SECTION 26: WORK REQUIREMENTS AND
INSPECTIONS
A. Any excavation, back filling, repair and restoration, and all other work performed
in
the
Right-of-Way
shall be done in conformance with APWA Standards as adopted
and
amended by the City, and to any additional standards as determined by the Public
Works
Director or their
Designee.
B. The ROW-user shall utilize flowable fill in the restoration of any street
cuts.
C. The ROW-user shall
notify
the City upon completion of the authorized
work.
D. The ROW-user shall
notify
the appropriate City Department to schedule an
inspection
prior to the start of back filling. Upon completion of all Right-of-Way
restoration
activities,
the ROW-user will schedule a closeout inspection with the Public
Works
Director or his
Designee.
E. When any corrective actions required have been completed and inspected to the
City's
satisfaction, the two (2) year maintenance period will
begin.
F. In addition to the required scheduled inspections, the City Manager, Public
Works
Director or their Designees 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
ROW-user.
G. At the time of any inspection, the City Manager, Public Works Director,
or their Designees 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
City
Manager, Public
Works Director or their Designees may
issue
a
citation to the ROW-user 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.
H. All Service Providers must use tracer wire/tape above all buried
lines.
SECTION 27: APPEALS
PROCESS
A. Whenever a Person shall deem themselves aggrieved by any decision or action
taken
by the City Manager or his Designee, the Person may file an appeal to the
Governing
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Body within ten (10) calendar days of the date of notice of such decision or
action.
B. The Person(s) shall be afforded a hearing on the matter before the Governing
Body
within thirty (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 City Manager or his
Designee.
D. In cases where compliance with such decision or action taken by the City Manager
or
his Designee 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 of the Governing Body, the order of the City Manager or
his
Designee shall be stayed, unless the City Manager determines that such actions will
pose
a threat to public safety or the integrity of the public infrastructure. If a Person
still
deems
themselves
aggrieved after the appeal to the Governing Body, such Person
shall
have thirty (30) days after the effective date of the Governing Body's final decision
to
institute an action in the appropriate court
jurisdiction.
SECTION 28:
INDEMNIFICATION
A. ROW-user 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
bodily
injur
y
(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 ROW-user, any agent, officer, director, or their
respective
officers, agents, employees, directors or
representatives,
while installing repairing
or
maintaining Facilities in a public
Right-of-Way.
B. 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 and judgment entered against the City, or
its
agents.
C. If a ROW-user and the City are found jointly liable by a court of
competent
jurisdiction, liability shall be apportioned comparatively in accordance with the laws
of
this
state without, however, waiving any governmental immunity available to the
City
under state
or federal law. This section is solely for the benefit of the City and
ROW
-user
and does not
create or grant any rights, contractual or otherwise, to any other
Person.
SECTION 29: FORCE
MAJEURE
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.
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SECTION 30: FEDERAL, STATE AND CITY
JURISDICTION
A. This Code shall be construed in a manner consistent with all applicable federal,
state,
and local laws. Notwithstanding any other provisions of this Code 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.
B. The ROW-user shall meet or exceed the most stringent technical standards set
by
regulatory bodies, including the City, now or hereafter having
jurisdiction.
C. 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.
D. Failure of the ROW-user to comply with any applicable law or regulation may
result
i
n
a
forfeiture
of any permit, registration or
authorization
granted in accordance with
this
Code.
SECTION
31:
SEVERABILITY
If any section, subsection, sentence, clause, phrase, or portion of this Code 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
SECTION
32: CITY'S FAILURE TO
ENFORCE
The City's failure to enforce or remedy any
noncompliance
of the terms and conditions
of
this Code 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.
SECTION
33:
PENALTIES
A. Any Person or entity violating any provision of this Code is guilty of
a
public
offense,
and upon conviction thereof shall be fined in a sum of not less
than
two hundred
dollars
($200.00)
nor more than five hundred dollars ($500.00). Every day that this Code
is
violated shall constitute a separate
offense.
B. The violation of any provision of this Code 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 Code.
In
addition to any other remedies, the City Attorney may institute injunction,
mandamus
or
other appropriate action or proceeding to prevent violation of this
Code.
SECTION
34: RESERVATION OF
RIGHTS
A. In addition to any rights specifically reserved to the City by this Code, 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
Code.
The City shall have the right to waive any provision of this Code or
any registration
,
permit or other authorization granted there under, except those required
by
federal or state
law, if the City determines as
follows:
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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
Person.
B. To be effective, such waiver shall be evidenced by a statement in writing signed
by
the City Manager or his Designee. Further, the City hereby reserves to itself the right
to
intervene in any suit, action or proceeding involving the provisions
herein.
C.
Notwithstanding
anything to the contrary set forth herein, the provisions of
this
Code 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.
SECTION
35: Waivers or Exemptions from this
Code.
The City Manager can, at any time, issue a waiver or provide an exemption of any
section
of this Code or part thereof, to a
ROW-user.
SECTION
36:
Fees.
A. The permit fees for working within the
Right-of-Way
shall be as
follows:
ROW Permit:
$65.00
After Hours Inspection Fee:
$100.00
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