Title 13 - Streets and Sidewalks

13.12.390 Use of the Right-of-Way.

1. 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.
2. B.
   The ROW-user shall coordinate the placement of Facilities in a manner that does not interfere with any Public Improvement and does not compromise the public health, safety or welfare, as reasonably determined by the City. Where placement is not regulated, the Facilities shall be placed with adequate clearance from such Public Improvements so as not to impact or be impacted by such Public Improvements and as required by the City’s Manual of Infrastructure Standards.
3. C.
   The ROW-user shall consider any request made by the City concerning placement of Facilities in private easements in order to limit or eliminate future Street improvement relocation expenses.
4. D.
   All Facilities shall be located and laid so as not to disrupt or interfere with any pipes, drains, sewers, irrigation systems, or other structures or Public Improvements already installed. In addition, the ROW-user shall, in doing work in connection with its Facilities, avoid, so far as may be practicable, disrupting or interfering with the lawful use of Right-of-way or other Public Lands of the City.
5. 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, through its City Engineer, shall have the right to consult and review the location, design and nature of the Facility prior to its being installed.
6. F.
   Whenever reasonably possible, all newly constructed Facilities shall be located underground. The ROW-user shall comply with all requirements of the City relating to underground Facilities. This requirement may be waived by the City Engineer at the City Engineer's 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 City Engineer, including, but not limited to, requirements regarding location and height.  Above ground Facilities shall comply with the Manual of Infrastructure Standards and all applicable zoning regulations, and be located in a manner that does not compromise the public health, safety or welfare.
7. G.
   The ROW-user shall not interfere with the Facilities of the other ROW-users without their permission. If and when the City requires or negotiates to have a Service Provider cease using its existing poles and to relocate its Facilities underground, all other Service Providers using the same poles shall also relocate their Facilities underground at the same time, except transmission equipment, as defined in 47 CFR 1.40001.  Provided, any such relocations shall be subject to the appeal process contained in Section 13.12.570, as amended.
8. H.
   The City Engineer 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 Engineer expects will someday be located within the Right-of-way. All Right-of-way Permits issued by City Engineer shall indicate the proper corridor for the ROW-user’s Facilities. Any ROW-user whose Facilities are currently in the Right-of-way in a position at a variance with the designated corridors shall, no later than at the time of next reconstruction or excavation of the area where its Facilities are located, move the Facilities to its assigned position within the Right-of-way, unless this requirement is waived by City Engineer for good cause shown, upon consideration of such factors as: the remaining economic life of the Facilities; public health, safety or welfare; user Service needs and hardship to the ROW-user.
9. I.
   If, in the preparation and planning of a Right-of-way project, the City Engineer deems it appropriate for a conduit to be constructed along, across or under the Right-of-way, the City Engineer shall contact all appropriate ROW-users for their input on the planning and design of such conduit. If a ROW-user desires to Construct, maintain or operate Facilities along such Right-of-way, the City Engineer may require the ROW-user to use such conduit, and to contribute to the expense of such conduit, provided, however, the ROW-user use of the conduit is reasonable and appropriate under the circumstances.
10. J.
    All earth, materials, sidewalks, paving, crossings, utilities, other Public Improvements or improvements of any kind damaged or removed by the ROW-user shall be fully repaired or replaced promptly by the ROW-user at its sole expense and to the reasonable satisfaction of the City. Upon determination by the City Engineer 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 Engineer may direct the City to make such Repair or replacement and bill the ROW-user for the City cost. The City Engineer 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.
11. K.
    All technical standards governing construction, reconstruction, installation, operation, testing, use, maintenance, and dismantling of a ROW-user’s Facilities in the Right-of-way shall be in accordance with the Manual of Infrastructure Standards and all applicable federal, state and local law and regulations, including those promulgated by national trade associations commonly associated with the Service provided by the ROW-user. It is understood that the standards established in this paragraph are minimum standards and the requirements established or referenced in this Chapter may be in addition to or stricter than such minimum standards. A ROW-user shall not Construct or reconstruct any of its Facilities located upon, over, under or within the City Right-of-way without first having submitted in writing a description of its planned improvement to the City Engineer and having received a permit for such improvement. The City Engineer 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.
12. L.
    The ROW-user shall cooperate promptly and fully with the City and take all reasonable measures necessary to provide accurate and complete on-site information regarding the nature and horizontal and vertical location of its Facilities located within the Right-of-way, both underground and overhead, when requested by the City or its authorized agent for a Public Improvement. Such location and identification shall be at the expense of the ROW-user without any expense to the City, its employees, agents, or authorized contractors.
13. M.
    Encroachments in the Right-of-way for private purposes which create a safety hazard are prohibited.
14. N.
    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 or welfare considerations.
15. O.
    The provisions of this Chapter shall apply to all Right-of-way platted or otherwise dedicated to the City, regardless of whether the public infrastructure for the Right-of-way has been constructed, or has been transferred to or accepted by the City.

(History: Ord. No. RW-3296 §7, 2020; Ord. RW-3139 §2, 2016; RW-2883 §1, 2011; RW-2410 §6, 2002; RW-2184, 2000)[Source or prior law: 13.12.210.]

Effective on: 1/1/1901