City of Mission, KS Public Rights-Of-Way and Private Utility Easements

Lines, pipes, wires, cables, conduits, poles, towers, vaults, pedestals, boxes, appliances, antennas, transmitters, gates, meters, appurtenances or other equipment owned by the service providers or affiliates thereof.

FRANCHISEE

See SERVICE PROVIDER.

GOVERNING BODY

The City Council of the City of Mission, Kansas.

GOVERNMENTAL ENTITY

Any form of public government recognized by the State of Kansas.

KCC

The Kansas Corporation Commission.

LICENSE

Any agreement between a person and the City authorizing the use of any portion the right-of-way.

PERSON

Any natural or corporate person, business association or business entity including, but not limited to, a partnership, a sole proprietorship, a political subdivision, a public or private agency of any kind, a utility, a successor or assign of any of the foregoing, or any other legal entity.

PRIVATE EASEMENT

Any easement or license to use real estate that is not right-of-way or is given to a specific person.

PUBLIC IMPROVEMENT

Any existing or contemplated public facility, building or project by the City or any other governmental entity, including without limitation streets, alleys, avenues, roads, boulevards, easements or other public lands.

PUBLIC LANDS

Any real property, including structures, developments and improvements thereon, of the City or of any other governmental entity located in the City that is not right-of-way.

PUBLIC PROJECT

Any project planned or undertaken by the City or any other governmental entity for construction, reconstruction, maintenance or repair of public facilities, any public improvement or any other purpose of a public nature.

RIGHT-OF-WAY

The area on, below or above the present and future streets, alleys, avenues, roads, boulevards, easements or other public lands, including easements dedicated for City use or the assignment of use by the City, in plats of the City of Mission, Kansas, but not including the airwaves above.

SERVICE PROVIDER OR FRANCHISEE

Any person that is a provider of a commodity for a fee or without fee using the right-of-way, their successors and assigns that has requisite certifications and authorizations from applicable "governmental entities", including, but not limited to, the City, the "KCC" and the "FCC", to provide such commodity.

Section 520.020 Policy.

[Ord. No. 1006 §2, 11-22-2000]

It is the policy of the City to authorize any service provider to utilize the right-of-way in a competitively neutral, non-discriminatory basis in a manner that maximizes the use of and conserves the right-of-way and minimizes the burden on the right-of-way, physically and aesthetically. Any use of the right-of-way by a service provider shall be subject to the terms and conditions hereof in addition to other applicable Federal, State or local requirements.

The service provider shall be subject to all rules, regulations, policies, resolutions and ordinances now or hereafter adopted or promulgated by the City in the reasonable exercise of its Police power and is subject to all applicable laws, orders, rules and regulations adopted by governmental bodies now or hereafter having jurisdiction. In addition, the service provider shall be subject to all technical specifications, design criteria, policies, resolutions and ordinances now or hereafter adopted or promulgated by the City relating to permits and fees, sidewalk and pavement cuts, utility location, construction coordination, surface restoration, and other requirements on the use of the right-of-way.

In order to minimize entry into the City's rights-of-way and to minimize disruption to City facilities, the facilities of others using the rights-of-way and to the citizens of the City, the City has adopted the "Joint Installation Notification", "Excess Conduit" and "Box and Pedestal Construction" policies as enumerated in Section 520.070 of this Article.

The rights granted to the service provider to use the public right-of-way shall be for the sole use of the service provider. No other party may use the service provider's right, unless authorized by the City. Service providers use is limited to the use that the service provider has filed with the City in accordance with this Article.

Section 520.030 Administration.

[Ord. No. 1006 §3, 11-22-2000]

The City Clerk is the principal City Official responsible for administration of the registering and licensing of a service provider. The City Clerk may delegate any or all of the duties hereunder.

Section 520.040 Registration.

[Ord. No. 1006 §4, 11-22-2000]

Each service provider shall, prior to the earlier of commencement of construction or commencement of service, register with the City on forms provided by the City Clerk.

The service provider shall report any changes in its registration information within thirty (30) days.

Any existing service providers must register within thirty (30) days of the effect of this Article.

Section 520.050 License.

[Ord. No. 1006 §5, 11-22-2000]

A service provider owning, possessing or operating facilities or providing service, including interconnection with or using the network elements of another service provider utilizing the right-of-way, in the City shall apply for an annual license and submit a work plan for the subsequent two (2) years to the City Clerk to utilize the right-of-way subject to the requirements herein and subject to the same may construct, maintain, extend, repair and operate their facilities in, through, under and along the right-of-way.

Each service provider shall, prior to the earlier of commencement of construction or commencement of service, present to the City the name, address, telephone number and fax number of a person familiar with the facilities who is responsible for satisfying the information needs of the City and other users of the right-of-way on forms issued by the City Clerk.

Prior to construction, reconstruction, repair, maintenance or relocation of any facilities owned by the service provider, the service provider shall first obtain the necessary right-of-way permit from the Public Works Director pursuant to Article II of this Chapter 520.

Prior to providing service to the City and its residents or installing facilities, the service provider shall first obtain the necessary franchise agreement from the City.

The service provider shall furnish, at time of licensing, maps showing the location, both horizontally and vertically, of all facilities of the service provider within the City as provided hereafter.

The service provider shall not sell, transfer, lease, assign, sublet or dispose of its facilities or any portion thereof or any right, title or interest in the same, or the transfer of any rights under this license to any person either by forced or involuntary sale, or by ordinary sale, consolidation or otherwise, without prior approval of the City provided that such approval shall not be unreasonably withheld and may be denied only upon a good faith finding by the City that the proposed licensee lacks the legal, technical or financial qualifications to perform its obligations under the license. Any attempt to sell, transfer, lease, assign or otherwise dispose the license or its system not conforming with the requirements of this Section shall be null and void. This provision shall not apply to sale of property or equipment in the normal course of business. No consent from the City shall be required for a transfer in trust, mortgage, or other instrument of hypothecation, in whole or in part, to secure an indebtedness or for a pro forma transfer to a corporation, partnership or other entity controlling, controlled by or under common control with the licensee. Any violation of this Section shall enable the City to revoke or modify the license.

Section 520.060 Right-Of-Way Occupancy Fee.

[Ord. No. 1006 §6, 11-22-2000]

One dollar seventy-five cents ($1.75) per linear foot of four (4) inch diameter (0.087 ft 2) pipe or conduit or as prescribed in any franchise agreement the service provider may have in force with the City.

Section 520.070 Use of The Right-Of-Way.

[Ord. No. 1006 §7, 11-22-2000; Ord. No. 1306 §1, 10-21-2009]

The service provider's use of the right-of-way shall in all matters be subordinate to the City's use or occupation of the right-of-way. Without limitation of its rights, the City expressly reserves the right to exercise its governmental powers now and hereafter vested in or granted to the City.

The service provider shall coordinate the placement of facilities in a manner which minimizes adverse impact on any public improvement, as reasonably determined by the City. Where placement is not regulated, the facilities shall be placed with adequate clearance from such public improvements so as not to impact or be impacted by such public improvement as defined in the City's Manual of Infrastructure Standards available in the office of the Public Works Director.

Pursuant to Article II of this Chapter, the service provider's facilities shall be located underground and shall comply with all ordinances of the City relating to underground service, unless such requirement is waived by the City.

All facilities shall be located and laid so as not to obstruct or interfere with any public or private water pipes, drains, sewers or other structures or public improvements already installed. In addition, the service provider shall, in doing work in connection with its said facilities, avoid, so far as may be practicable, obstructing or interfering with the lawful use of the streets, alleys, avenues, roads, easements or other public places of the City.

All facilities of the service provider shall be placed so that they do not interfere with the use of right-of-way and public places by the City. The City, through its Public Works Director, shall have the right to consult and review the location, design and nature of the facility prior to its being installed. The City shall limit its review to matters pertaining to public safety and aesthetics and to what extent adjoining property will be adversely affected.

The service provider shall keep and maintain and provide to the City accurate records and as-built drawings depicting accurate horizontal and vertical location of all its facilities constructed, reconstructed, relocated or abandoned in the right-of-way. Such information shall be provided to the City in the form of a route map and as-built drawings of existing or constructed facilities, electronically in an AutoCAD format compatible with the City's Geographical Information Systems (GIS) and Johnson County Automated Integrated Mapping Systems (AIMS) showing and describing the exact locations, both horizontal and vertical, of all facilities constructed and existing. Underground facilities shall be differentiated from overhead facilities.

The service provider shall cooperate promptly and fully with the City and take all reasonable measures necessary to provide accurate and complete on-site information regarding the nature and horizontal and vertical location of its facilities located within the right-of-way or private easements, both underground and overhead, when requested by the City or its authorized agent for a public project. Such location and identification shall be at the sole expense of the service provider without any expense to the City, its employees, agents or authorized contractors. The service provider shall designate and maintain a local affiliate familiar with the facilities, who is responsible for satisfying information needs of the City and other users of the right-of-ways.

The ROW user shall promptly remove, relocate or adjust any facilities located in the right-of-way as directed by the City for a public improvement or when reasonably required by the City by reason of public health, safety and welfare. Such removal, relocation or adjustment shall be performed by the ROW user at the ROW user's sole expense without expense to the City, its employees, agents or authorized contractors and shall be specifically subject to rules, regulations and schedules of the City pertaining to such. The ROW user shall proceed with relocations at due diligence upon notice by the City to begin relocation.

The ROW user shall promptly remove, relocate or adjust any facilities located in private easement as directed by the City for a public improvement at City expense by moving such facilities to areas within the expanded right-of-way or within remaining private easements or remaining portions of such easements not condemned by nor disclaimed to the City to avoid conflict with the City construction and improvements. The ROW user shall disclaim those parts of its easements which lie within the expanded right-of-way, the cost of any such future relocation shall be borne by the City.

All newly constructed facilities shall be located underground and the ROW user shall comply with all requirements of the City relating to underground facilities. Exceptions to this rule are:

When otherwise specifically provided for in the City Code or Zoning Regulations;

When such requirement is waived by the Planning Commission as part of a development plan; or

When the Governing Body grants a special exception to this requirement on a temporary or permanent basis on such terms deemed appropriate in case of emergency, safety concerns, unusual circumstances or some other good cause.

In addition, in cases where temporary electrical power of communication service is reasonably required for emergencies or for building construction purposes, the City Administrator or his agent may grant special permission for the temporary construction and use of poles, wires and other above ground facilities for a period not to exceed one hundred twenty (120) days; provided, in the event that resolving said emergency or completing said construction cannot be concluded within said time period because of a shortage of material, a natural disaster, strikes or other circumstances beyond the control of the parties, or by unusual hardships, then the time may be extended to an additional temporary period or periods necessary to allow completion of such construction. When above ground facilities are allowed pursuant to this Section, said facilities shall be located only as directed by the City including, but not limited to, requirements regarding location and height.

It shall be the responsibility of the service provider to take adequate measures to protect and defend its facilities in the right-of-way from harm and damage. The City shall not be liable for any damage to or loss of any of the service provider's facilities within the right-of-way or private easement as a result of or in connection with any construction, excavation, grading, filling or work of any kind, including public project or public improvement by or on the behalf of the City, provided such damage is not directly or proximately caused by the willful, intentional or malicious acts of the City. The service provider shall be responsible to the City and its agents, representatives and authorized contractors for all damages including, but not limited to, delay of any kind arising out of the failure of the service provider to perform any of its obligations under this Article unless the damaged party is solely responsible for the harm or damage by its negligence or intentionally caused harm. The City or its authorized contractors shall be responsible to take reasonable precautionary measures including calling for facility locations.

The Public Works Director may grant permission to the service provider to trim trees upon and overhanging right-of-way so as to prevent the branches of such trees from coming in contact with the facilities of the service provider upon review and approval of a plan and details for trimming trees in the rights-of-way.

All technical standards governing construction, reconstruction, installation, operation, testing, use, maintenance, and dismantling of service provider's facilities in the right-of-way shall be in accordance with applicable Federal, State and local law and regulations, including those promulgated by national trade associations commonly associated with the service provided by the service provider. It is understood that the standards established in this paragraph are minimum standards and the requirements established or referenced in this Article may be in addition to or stricter than such minimum standards.

Joint Installation Notification.

Prior to constructing any new or additional underground conduit or above ground boxes or pedestals within the rights-of-way, a franchisee shall certify in writing to the City Engineer that it has made appropriate inquiry to all existing utilities and other entities possessing a right to occupy the rights-of-way as to the availability of existing or planned conduit or box or pedestal locations that the franchisee could reasonably utilize to meet its needs, and that no such conduit or box or pedestal locations are available or planned within the next six (6) months.

All existing utilities, and entities granted a Franchise, with usable conduit within the rights-of-way shall make such conduit available to other franchisees consistent with the Federal requirements of Section 47 U.S.C. 224. All existing utilities and entities granted a Franchise with box and pedestal locations shall, when feasible, accommodate collocation of facilities of other franchisees. Each franchisee shall provide mapping of all existing facilities and excess conduit except as may be waived by the City Engineer as unnecessary or unduly burdensome. All new facilities shall require sufficient mapping in hard copy and electronic format.

Once the City Engineer has made the determination that no such conduit or box or pedestal locations are available and has reviewed the plans and provided preliminary approval of the location of the facilities, the licensee (franchisee) must notify by registered mail all companies on file with the City prior to being authorized to proceed with installation of new conduit or boxes and pedestals (or overhead facilities if otherwise permitted).

The franchisee shall comply with the following notification requirements:

The franchisee shall provide written notification by restricted mail, postage prepaid, return receipt requested, of the proposed construction activity and locations (whether by trenching, boring, overhead installation or otherwise) to all other existing and potential users of the rights-of-way as designated on a provider list approved by the City. The notice shall invite all other firms to join with the franchisee in placing their own conduit and laterals and boxes and pedestals in the noticed locations on a cost-shared basis. The written notification shall contain sufficient mapping and information as would be reasonably necessary for potential users to assess the viability of joint installation. The notice shall include a statement that the notification is pursuant to this policy and shall include a copy of this policy. Such notices shall disclose where the licensee (franchisee) intends to construct conduit and contain a clear map of the proposed route or locations, including all proposed lateral or connecting conduit to specific locations.

All companies notified shall have twenty-one (21) calendar days from the receipt of such notification to indicate in writing to the City and the franchisee as to whether they desire to jointly undertake the construction of such conduit or otherwise co-locate their facilities at such time. Any company electing to jointly construct or co-locate its facilities with that of franchisee shall share in the pro rata costs of such construction or joint installation of facilities. All interested companies shall enter into a participant agreement and shall designate a lead company, normally the licensee. The City shall be given a copy of the participant agreement and will work with the lead company in making all construction and location determinations, in granting permits, in making inspections, and in all other matters with regard to the construction of the joint underground facility. All City policies, requirements, construction standards and ordinances will apply to the project. The lead company shall be responsible for maintenance and management of the joint facility. All such issues and requirements shall be covered in the participant agreement.

A company that is invited to participate in a joint construction project and decides not to participate may not enter the right-of-way for the purpose of the construction of new facilities for a period of five (5) years from the date of receipt of notification. This prohibition does not apply to the repair of existing facilities or situations determined by the City Engineer to be in the nature of an emergency, or where good cause is determined by the City Engineer justifying a failure by the company to respond and warranting new disturbance contrary to timeframe established by this provision.

The City Engineer may limit the number of conduit that may be installed by each provider to ensure that no one (1) provider unreasonably consumes a disproportionate amount of the available rights-of-way. Unless space considerations otherwise dictate, each location shall be presumed to be capable of permitting each provider to install up to two (2) four (4) inch conduits or their equivalent.

Excess Conduit Requirements.

Policy objectives. The City has determined that the influx of users of the rights-of-way requires affirmative action by the City to coordinate the users of the rights-of-way and to ensure that there are sufficient underground facilities for future and existing communications users. By requiring initial installers of facilities to install additional conduit for use by other providers and the City, the City desires to promote competition by available infrastructure, maximize the useable space in the rights-of-way, lower cost to the industry as a whole, reduce excavations, and most importantly maximize safety by reducing the potential for excavation accidents.

When a franchisee installs any new conduit, the franchisee shall at the request of the City Engineer install sufficient additional conduit or other related facilities ("excess conduit") to meet the City's planned infrastructure needs for the City and the expected needs of other users of the rights-of-way. Such additional excess conduit shall be required as provided for on a designated conduit plan, if any, and additionally as determined based on the following criteria:

All construction of underground conduit will require the construction of additional conduit.

Excess conduit shall not be required for uses that are not technically compatible or in locations or circumstances where the policy objectives stated in this policy would not be served.

The City will normally require no more than one (1) four (4) inch conduit as excess conduit unless the City Engineer determines by an independent review or industry study that more than one (1) four (4) inch conduit is required to accommodate projected future rights-of-way use.

The additional conduit will be constructed and managed by licensee (franchisee) or if this is a joint construction project by the lead company. The additional conduit will be owned by the licensee (franchisee), or in the case of joint construction the lead company, and will be sold or leased to a licensee or franchisee wanting to locate facilities in the right-of-way. The owner of the additional conduit will not unreasonably withhold such conduit or unreasonably price such conduit. An unreasonable price is one that substantially exceeds the pro rata share of constructing and financing the underground facilities or exceeds the cost of newly constructing such conduit. The City reserves the right to review each situation and refer potential users of the additional conduit to the owner. The owner of the conduit is obligated to maintain the additional conduit in good and serviceable condition and will notify the City of any inquiry regarding its possible use.

The cost of the additional conduit will be born by the licensee or, in the case of a joint construction project, by all participants in the project on a pro rata basis. The licensee, or in the case of a joint construction project all participants, shall recoup their pro rata share of costs and financing through the sale of additional conduit.

All of the terms and requirements for installation and maintenance shall be set out in advance of construction and agreed to by all parties. The City Engineer may adopt approved agreements, require mediation, or may adopt other procedures or regulations to effect this policy and to otherwise ensure the timely coordination of parties as to the joint installation and or excess conduit.

Box And Pedestal Construction.

Policy objectives. The City has determined that the influx of users of the rights-of-way requires affirmative action by the City to coordinate the users of the rights-of-way and to ensure that there are sufficient acceptable box and pedestal locations for future and existing communications users. By requiring initial installers of facilities to accommodate the use by other providers, the City desires to promote competition by facilitating interconnections and minimize the disruption to the rights-of-way and visual blight to the community.

When a franchisee installs any new boxes or pedestals, the franchisee shall provide to the City engineer the locations and descriptions of all such proposed facilities and at the request of the City Engineer shall install sufficient additional capacity or other related facilities to meet the expected needs of other users of the rights-of-way.

The service provider may permit and has authority to allow a third party, including the service provider's subsidiary or affiliate, to occupy or acquire rights to occupy the right-of-way or private easement under this Article, provided however, the third party registers and obtains the proper license from the City. The service provider shall notify the City of the intended third party use. Nothing in this paragraph shall prevent the service provider from providing to any third party the use of the service provider's facilities in the rights-of-way.

In case of failure on the part of the service provider to comply with any of the provisions of this Article or applicable law, or should service provider do or cause to be done any act or thing prohibited by or in violation of the terms of this Article, the service provider shall forfeit all rights and privileges granted under this Article and all rights shall cease, terminate and become null and void, provided that such forfeiture shall not take effect until the City shall provide due process to the service provider.

The Public Works Director shall assign specific corridors within the right-of-way, or any particular segment thereof as may be necessary, for each type of facility that is or, pursuant to current technology, the Public Works Director expects will someday be located within the right-of-way. All right-of-way permits issued by the Public Works Director shall indicate the proper corridor for the service provider's work. Any service provider whose facilities are in the right-of-way in a position at variance with the designated corridors shall, no later than at the time of next reconstruction or excavation of the area where its facilities are located, move the facilities to its assigned position within the right-of-way, unless this agreement is waived by the Public Works Director for good cause shown, upon consideration of such factors as the remaining economic life of the facilities, public safety, user service needs and hardship to the service provider.

Section 520.080 Abandoned and Unusable Facilities.

[Ord. No. 1006 §8, 11-22-2000]

A service provider who has determined to discontinue its operations in the City must either:

Provide information satisfactory to the City Clerk that the service provider's obligations for its facilities in the right-of-way have been lawfully assumed by another service provider, or

Submit to the City Clerk a proposal and instruments for transferring ownership of its facilities to the City. If a service provider proceeds under this Section, the City may, at its option purchase the equipment, require the service provider, at its own expense, to remove it, or require the service provider to post a bond in an amount sufficient to reimburse the City for reasonable anticipated costs to be incurred to remove the facilities.

Facilities of a service provider who fails to comply with this Section, and which facilities for two (2) years remains unused, shall be deemed to be abandoned. Abandoned facilities are deemed to be a nuisance. The City may exercise any remedies or rights it has at law or in equity including, but not limited to:

Abating the nuisance;

Taking possession of the facility and restoring it to a useable function; or

Requiring the removal of the facility by the service provider.

Section 520.090 Severability.

[Ord. No. 1006 §9, 11-22-2000]

If any Section, Subsection, sentence, clause, phrase or portion of this Chapter is for any reason held invalid or unconstitutional by any court or administrative agency of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions thereof.

Section 520.100 City's Failure To Enforce.

[Ord. No. 1006 §10, 11-22-2000]

The City's failure to enforce or remedy any non-compliance of the terms and conditions of this Article or of any license granted thereunder shall not constitute a waiver of the City's rights nor a waiver of any service provider's obligation as herein provided.

Section 520.110 Penalties.

[Ord. No. 1006 §11, 11-22-2000]

The violation of any provision of this Article is hereby declared to be a public offense, and any person, firm, association, partnership or corporation convicted thereof shall be punished by a fine provided in the City of Mission Municipal Code.

The violation of any provision of this Article is hereby deemed grounds for revocation of the service provider's license.

Section 520.120 Reservation of Rights.

[Ord. No. 1006 §12, 11-22-2000]

In addition to any rights specifically reserved to the City by this Article, the City reserves to itself every right and power which is required to be reserved by a provision of any ordinance under any license granted under this Article. The City shall have the right to waive any provision of this Article or any license granted thereunder, except those required by Federal or State law, if the City determines:

That it is in the public interest to do so, and

That the enforcement of such provision will impose an undue hardship on the service provider. To be effective, such waiver shall be evidenced by a statement in writing signed by a duly authorized representative of the City Council.

Article II Excavation Activities in Public Rights-Of-Way and Private Utility Easements

Section 520.130 Definitions.

[Ord. No. 1002 §1, 8-9-2000]

For purposes of this Article, the following words and phrases shall have the meaning given herein:

APPLICANT

Any person requesting permission to excavate or obstruct a right-of-way.

APWA

The Kansas City Metropolitan Chapter of the American Public Works Association.

APWA SPECIFICATIONS

The most current version of the APWA Standard Specifications and Design Criteria manual.

CITY

The City of Mission, Kansas, and any duly authorized representative.

CITY COST

The actual cost incurred by the City for right-of-way management including, but not limited to, costs associated with registering applicants; issuing, processing and verifying right-of-way permit applications; inspecting job sites and restoration projects; maintaining, supporting, protecting or moving user equipment during City right-of-way work; determining the adequacy of right-of-way restoration; restoring work inadequately performed; and revoking right-of-way permits and performing all other tasks required by this Chapter, including other costs the City may incur in managing the provisions of this Chapter.

DAY

Calendar day unless otherwise specified.

DEGRADATION

The accelerated depreciation of the right-of-way caused by excavation in or disturbance of the right-of-way resulting in the need to reconstruct such right-of-way earlier than would be required if the excavation did not occur.

DEGRADATION COST

Money paid to the City to cover the cost associated with a decrease in the useful life of a right-of-way caused by excavation.

DEPARTMENT

The Public Works Department of the City of Mission, Kansas.

EMERGENCY

A condition that:

Poses a clear and immediate danger to life or health or of a significant loss of property; or

Requires immediate repair or replacement in order to restore service to a user.

EXCAVATE

To dig into or in any way remove, physically disturb or penetrate a part of a right-of-way or private easement.

FACILITY

Lines, pipes, wires, cables, conduits, poles, towers, vaults, pedestals, boxes, appliances, antennas, transmitters, gates, meters, appurtenances or other equipment used by the service providers.

FCC

Federal Communications Commission.

GOVERNING BODY

The City Council of the City of Mission, Kansas.

GOVERNMENTAL ENTITY

Any form of public government recognized by State of Kansas.

KCC

The Kansas Corporation Commission.

LICENSE

Any agreement between a person and the City authorizing the use of any portion of the right-of-way.

OBSTRUCT

To place a tangible object in the right-of-way so as to hinder free and open passage over that or any part of the right-of-way.

OBSTRUCTION COST

The penalty imposed as result of the adverse impact on the citizens of the City who are required to alter travel routes and times resulting from right-of-way obstructions.

OBSTRUCTION PERMIT

The permit which must be obtained before a person may obstruct a right-of-way allowing the holder to hinder free and open passage over the specified portion of that right-of-way.

PARKWAY

The area between a person's property line and the street curb, sometimes called boulevard, tree shelf or snow shelf.

PAVEMENT

Includes Portland cement concrete pavement, asphalt concrete pavement, asphalt treated road surfaces and any aggregate base material.

PERMITTEE

Any person to whom a permit to excavate or obstruct a right-of-way has been granted by the City.

PERSON

PRIVATE EASEMENT

Any easement or license to use real estate that is not right-of-way.

PUBLIC IMPROVEMENT

Any existing or contemplated capital improvement project to and including, without limitation, streets, alleys, avenues, roads, boulevards, easements or other public lands.

PUBLIC LANDS

Any real property, including structures, developments and improvements thereon, of the City or of any other governmental entity located in the City that is not a right-of-way.

PUBLIC PROJECT

Any project planned or undertaken by the City or any other governmental entity for construction, reconstruction, maintenance or repair of public facilities or any other public improvement or any other purpose of a public nature.

PUBLIC WORKS DIRECTOR

The Director of the Public Works Department of the City of Mission, Kansas, or the authorized representative.

REPAIR

The temporary construction work necessary to make the right-of-way useable for use.

RESTORATION

The process by which an excavated right-of-way and surrounding area, including pavement and foundation, is returned to the same condition or better that existed before the commencement of the work.

RIGHT-OF-WAY

The area on, below or above the present and future streets, alleys, avenues, roads, boulevards, easements or other public lands including easements on private and public lands when such easements are dedicated for City use in plats of the City of Mission, Kansas, but not including the airwaves above.

RIGHT-OF-WAY PERMIT

A permit to perform work in a right-of-way, whether to excavate or obstruct the right-of-way.

SERVICE

A commodity used by the public including, but not limited to, gas, telephone, cable TV, alarm systems, steam, electric, water, telegraph, data transmission, petroleum pipelines, sanitary sewerage or drainage not for City use.

SERVICE PROVIDER

Any person, its successors and assigns that is a provider of a commodity for a fee with requisite certifications and authorizations from applicable governmental entities, including the KCC and the FCC, to provide such service.

Section 520.140 Policy.

[Ord. No. 1002 §2, 8-9-2000]

The purpose of the Article will be to regulate occupancy, obstructions of and excavations in the right-of-way by providing, among other things, for the issuance of permits granting authority to utilize and occupy the right-of-way within the City.

The permittee shall be subject to all rules, regulations, policies, resolutions and ordinances now or hereafter adopted or promulgated by the City in the reasonable exercise of its Police power and is subject to all applicable laws orders, rules and regulations adopted by governmental bodies now or hereafter having jurisdiction. In addition, the permittee shall be subject to all technical specifications, design criteria, policies, resolutions and ordinances now or hereafter adopted or promulgated by the City relating to permits and fees, sidewalk and pavement cuts, utility location, construction coordination, surface restoration and other requirements on the use of the right-of-way.

Section 520.150 Permitted Work.

[Ord. No. 1002 §3, 8-9-2000]

The permittee shall, in the performance of any work required for the installation, repair, maintenance, relocating and/or removing of any of its facilities, limit all excavations to those excavations that are necessary for efficient operation. The permittee shall not make any cut, excavation or grading of right-of-way other than excavations necessary for emergency repairs without first securing a permit and posting a bond as required by City ordinance and, further, the permittee shall not at any one time open or encumber more of right-of-way than shall be reasonably necessary to enable the permittee to complete the project in the most expeditious manner. The permittee shall not permit such an excavation to remain open longer than is necessary to complete the excavation.

The permittee shall notify the City no less than three (3) working days in advance of any construction, reconstruction, repair, location or relocation of facilities which would require any street closure which reduces traffic flow to less than two (2) lanes of moving traffic. Except in the event of an emergency as reasonably determined by the permittee, no such closure shall take place without notice and prior authorization from the City. The City shall follow its policies in the granting or denial of such authority, which shall not be unreasonably delayed. In addition, all work performed in the right-of-way or which in any way impacts vehicular or pedestrian traffic shall be properly signed, barricaded and otherwise protected. Such signage shall be in conformance with the latest edition of the Federal Highway Administration's Manual on Uniform Traffic Control Devices unless otherwise agreed to by the City.

After any excavation, the permittee shall, at its expense, restore all portions of the right-of-way to the same condition or better condition than it was prior to the excavation thereof. Following written notice to the permittee, if the permittee fails to promptly restore the affected portion of the right-of-way, the Public Works Director may make the restoration in a manner satisfactory to the City. All costs incurred for such restoration, whether completed by City work forces and equipment or by contractors hired by the City, shall be paid by the permittee, including the costs of any inspectors the City may assign to the project. The City shall determine all costs associated with providing said restoration and inspection and the permittee shall be responsible for reimbursing the City for all of such reasonable costs. All excavations shall be replaced with materials and in accordance with ordinances and specifications as required by the City.

Whenever there is an excavation by the permittee, the permittee shall be responsible for providing adequate traffic control as determined by the Public Works Director of the City. The permittee shall perform work on the right-of-way at such times that will allow the least interference with the normal flow of traffic.

All facilities and other appurtenances laid, constructed and maintained by the service provider shall be laid, constructed and maintained in accordance with acceptable engineering practice and in full accord with any and all applicable engineering codes adopted or approved by the parties and in accordance with applicable Statutes of the State of Kansas and the rules and regulations of the Kansas Corporation Commission or any other local, State or Federal agency having jurisdiction over the parties.

The service provider shall keep, maintain and provide to the City accurate records and as-built drawings depicting accurate horizontal and vertical location of all its facilities which are constructed, reconstructed, relocated or abandoned in the right-of-way. Such information shall be provided to the City in the form of a route map and as-built drawings of existing or constructed facilities in an electronic AutoCAD format which is compatible with the City's Geographical Information Systems (GIS) and Johnson County Automated Integrated Mapping Systems (AIMS). Underground facilities shall be differentiated from overhead facilities.

Nothing herein shall be construed to repeal or amend the provisions permitting persons to maintain boulevard plantings or gardens. However, excavations deeper than twelve (12) inches are subject to the right-of-way permit process.

Section 520.160 Administration.

[Ord. No. 1002 §4, 8-9-2000]

The principal City Official responsible for administration of right-of-way permits shall be the Public Works Director. The Public Works Director may delegate any or all of the duties hereunder.

Section 520.170 Registration and License.

[Ord. No. 1002 §5, 8-9-2000]

Before receiving a permit, the permittee must show proof of registration, license, insurance and franchise agreement.

Section 520.180 Permit Requirement.

[Ord. No. 1002 §6, 8-9-2000]

Except as otherwise provided, no person may excavate or obstruct any right-of-way without first having obtained the appropriate right-of-way permit. Said person must abide by all local, State or Federal laws regarding such work in easements of their own property. Said person shall assume all liability for any such work.

A right-of-way permit is required to excavate that specified portion of the right-of-way as described in such permit and to obstruct free and open passage over said portion of the right-of-way to the extent and for the duration specified.

A right-of-way permit is required for emergency situations. The permit shall be obtained within one (1) working day.

No person may excavate or obstruct the right-of-way beyond the date or dates specified in the permit unless such person:

Makes a supplementary application for another right-of-way permit before the expiration of the initial permit, and

A new permit or permit extension is granted.

Right-of-way permits issued shall be conspicuously displayed at all times at the indicated work site and shall be available for inspection by the Public Works Director, other City employees and the public.

Prior to the commencement of excavation, the permittee shall cause the perimeter of the excavation and the identification of any buried facilities to be spray painted according to the APWA specifications.

All excavations shall have a metal marker inserted into the excavation-restored pavement which shall identify the service provider.

Section 520.190 Permit Applications.

[Ord. No. 1002 §7, 8-9-2000]

Application for a right-of-way permit shall be submitted to the Public Works Director.

Right-of-way permit applications shall contain, but not be limited to, the following information: the permittee's name, address, insurance certificate, bonds and work description for processing the right-of-way permit.

Right-of-way applications shall contain and be considered complete only upon receipt of the following:

Compliance with verification of registration and license with the City Clerk;

Submission of a completed permit application form, including all required attachments and scaled drawings showing the location and area of the proposed project and the location of all existing and proposed equipment;

Payment of all money due to the City for franchise fees, permit fees and costs, for prior obstructions or excavation costs, for any loss, damage or expense suffered by the City because of the applicant's prior excavations or obstructions of the right-of-way or for any emergency actions taken by the City.

The permittee shall keep all right-of-way permit information current at all times by providing the Public Works Director information as to changes within fifteen (15) days following the date on which the permittee has knowledge of any change.

Section 520.200 Issuance of Permit.

[Ord. No. 1002 §8, 8-9-2000]

If the Public Works Director determines that the applicant has satisfied the requirements of this Chapter, the Public Works Director may issue a right-of-way permit.

The Public Works Director may impose reasonable conditions upon the issuance of a right-of-way permit and the performance of the applicant thereunder in order to protect the public health, safety and welfare, to ensure the structural integrity of the right-of-way, to protect the property and safety of the other users of the right-of-way, and to minimize the obstruction and inconvenience to the traveling public.

When a right-of-way permit is requested for purposes of installing additional facilities and the posting of a restoration bond for the additional facilities is insufficient, the posting of an additional or larger restoration bond for the additional facilities may be required.

Issued permits are not transferable.

Section 520.210 Permit Fees.

[Ord. No. 1002 §9, 8-9-2000]

The right-of-way permit fee will be recommended by the Public Works Director, approved by the City Council and listed in the schedule of fees maintained in the City Clerk's office.

The right-of-way permit fee shall include, but not be limited to, the following:

Administrative costs associated with: the registration of applicants; issuing, processing and verifying right-of-way permit applications; inspecting job sites and restoration projects; determining the adequacy of right-of-way restoration; and revoking right-of-way permits; and performing all other tasks required by this Chapter, including other costs the City may incur during the course of managing the provisions of this Chapter; and/or

Degradation costs associated with a decrease in the useful life of the right-of-way as caused by excavation; and/or

Obstruction costs associated with placement of a tangible object in the right-of-way so as to hinder free and open passage over that or any part of the right-of-way.

No right-of-way permit shall be issued prior to the payment of such fees.

Fees paid for a permit, which is subsequently revoked by the Public Works Director for a breach of this Chapter, are not refundable.

Section 520.220 Performance Bonds and Liability Insurance Certificates.

[Ord. No. 1002 §10, 8-9-2000]

The permittee shall provide a performance bond and liability insurance certificate as dictated in the APWA specifications.

No performance bond or liability insurance certificate will be required of any governmental utility or of any residential property that does not utilize a contractor to perform the excavation.

Section 520.230 Right-Of-Way Repair and Restoration.

[Ord. No. 1002 §11, 8-9-2000]

The work to be done under the right-of-way permit and the repair and restoration of the right-of-way as required herein must be completed within the dates specified in the permit. However, in the event of extraordinary circumstances beyond the control of the permittee or when work was prohibited by unseasonable or unreasonable conditions, the Public Works Director may increase the dates for completion of the project by as many days as work was delayed.

All backfilling and restoration work will be conducted in accordance with the APWA specifications.

In addition to repairing its own work, the permittee must restore any area within ten (10) feet of the new excavation that has previously been excavated, including the paving and its aggregate foundations. The permittee must also inspect the area of the work and use reasonable care to maintain the same condition for a period of thirty-six (36) months following the acceptance by the Public Works Director of the original restoration.

The permittee shall repair its own work at no expense to the City or any of the City's agents, representatives or authorized contractors.

The permittee shall perform repairs and restoration according to standards and with the material specified by the Public Works Director. The Public Works Director shall have the authority to prescribe the manner and extent of the restoration and may do so in written procedures of general application or on a case-by-case basis. In exercising this authority, the Public Works Director shall be guided by the following standards and considerations:

The number, size, depth and duration of the excavations, obstructions or damage to the right-of-way;

The traffic volume carried by the right-of-way;

The character of the neighborhood surrounding the right-of-way;

The pre-excavation condition of the right-of-way;

The remaining life expectancy of the right-of-way affected;

Whether the relative cost of the method of restoration to the permittee is in reasonable balance with the prevention of an accelerated depreciation of the right-of-way that would otherwise result from the excavation, obstruction or damage to the right-of-way; and

The likelihood that the particular method of restoration would be effective in slowing the depreciation of the right-of-way that would otherwise take place.

During the thirty-six (36) months following the acceptance by the Public Works Director of the original restoration, the permittee shall, upon request from the Public Works Director, correct all restoration work to the extent necessary, using any method as required by the Public Works Director. Said work shall be completed within five (5) days of the receipt of notice from the Public Works Director (not including days during which work cannot be done because of circumstances constituting force majeure or days when work is prohibited as unseasonable or unreasonable).

The thirty-six (36) month guarantee period shall only be applicable to the pavement surface. The permittee shall be responsible in perpetuity to repair any failure of the excavation below the pavement surface.

If the permittee fails to restore the right-of-way in the manner and to the condition required by the Public Works Director or fails to satisfactorily and timely complete all restoration required by the Public Works Director, the Public Works Director may choose to complete such work. In such event, the permittee shall pay to the City, within thirty (30) days of billing, the costs associated with restoration of the right-of-way plus a sum of five hundred dollars ($500.00).

Payment of a degradation cost shall not relieve the permittee of the obligation to complete the necessary right-of-way restoration.

The Public Works Director shall have the authority to extend the guarantee period for an additional thirty-six (36) months from the date of the new restoration if the Public Works Director determines any overt action by the permittee not to comply with the conditions of the right-of-way permit and any restoration requirements.

Section 520.240 Protective Measures.

[Ord. No. 1002 §12, 8-9-2000]

The permittee responsible for the excavation and who leaves any debris in the right-of-way shall be responsible for providing safety protection in accordance with the latest edition of the Manual of Uniform Traffic Control Devices.

If an excavation cannot be backfilled immediately, the permittee shall request approval of the Public Works Director to secure and adequately cover the unfilled excavation with a steel plate if in the roadway or by timbers and plywood if not in the roadway.

Section 520.250 Liability and Indemnification.

[Ord. No. 1002 §13, 8-9-2000]

The permittee shall solely assume all liability for work performed in the right-of-way and shall wholly indemnify and defend the City for any action brought against the City as the result of such work.

Section 520.260 Joint Applications.

[Ord. No. 1002 §14, 8-9-2000]

Permittees may apply jointly for permits to excavate or obstruct the right-of-way at the same time and place.

Permittees who apply jointly for a right-of-way permit may share in the right-of-way permit fee. Permittees must agree among themselves as to the portion each shall pay.

Section 520.270 Supplementary Applications.

[Ord. No. 1002 §15, 8-9-2000]

A right-of-way permit shall only be valid for the area of the right-of-way specified within the permit. No permittee may cause any work to be done outside the area specified in the permit, except as provided herein. Any permittee who determines that an area greater than that which is specified in the permit must be excavated or obstructed must do the following prior to the commencement of work in that greater area:

Make application for a permit extension and pay any additional fees required thereby, and

Receive a new permit or permit extension.

A right-of-way permit shall be valid only for the dates specified in the permit. No permittee may commence work before the permit start date or, except as provided herein, may continue working after the end date. If a permittee does not complete the work by the permit end date, the permittee must apply for and receive a new permit or a permit extension for additional time. This supplementary application must be submitted to the City prior to the permit end date.

Section 520.280 Other Obligations.

[Ord. No. 1002 §16, 8-9-2000]

Obtaining a right-of-way permit under this Chapter shall not relieve the permittee of its duty to obtain all other necessary permits, licenses and authority and to pay all fees required by any other City, County, State or Federal rules, laws or regulations. A permittee shall perform all work in full accord with any and all applicable engineering codes adopted or approved by the parties and in accordance with applicable Statutes of the State of Kansas and the rules and regulations of the Kansas Corporation Commission or any other local, State or Federal agency having jurisdiction over the parties. A permittee shall perform all work in conformance with all applicable codes and established rules and regulations and shall be responsible for all work done in the right-of-way pursuant to its permit, regardless of who the work is done by.

Except in cases of emergency and with approval of the Public Works Director, no right-of-way work may be done when seasonally prohibited or when conditions are unreasonable for such work.

A permittee shall not obstruct a right-of-way that the natural free and clear passage of water through the gutters or other waterways shall be interfered with. Private vehicles may not be parked within or next to the permit area.

If the City engages in any construction project on its right-of-way which is owned by or under the control of the City which makes it necessary to remove or relocate any portion of the facilities owned by permittee, the permittee shall make any necessary relocation at no cost to the City. It is the intent of this Section for both the City and the permittee to cooperate with one another so that the need for facility relocation is minimized and, when required and feasible, relocations may be completed prior to receipt of bids by the City for a public improvement project.

As soon as working drawings are available for City projects which will require the permittee to relocate its facilities, the City shall provide the permittee with written notice of desired relocations and the anticipated bid letting date of said project. The permittee shall respond with any conflicts and a proposed construction schedule within thirty (30) days. Following notice by the City in the form of the delivery of final design plans, the permittee shall remove and relocate its facilities in accordance with the mutually agreed upon schedule, provided the project is not delayed by adverse weather conditions and other factors beyond the control of the permittee.

Section 520.290 Denial of Permit.

[Ord. No. 1002 §17, 8-9-2000]

Except in an emergency, no right-of-way permit shall be granted as follows:

To any person who does not maintain a current license with the City;

For any project which requires excavation of any portion of a right-of-way which was constructed or reconstructed within the preceding five (5) years;

To any person who has failed within the last three (3) years to comply or is presently not in full compliance with the requirements of this Chapter;

If, in the discretion of the Public Works Director, the issuance of a permit for the particular dates and/or time would cause a conflict or interfere with an exhibition, celebration, festival or any other event. In exercising this discretion, the Public Works Director shall be guided by the safety and convenience of ordinary travel of the public over the right-of-way and by the considerations relating to the public health, safety and welfare of the general public.

Notwithstanding the above provisions, the Public Works Director may issue a right-of-way permit in any case where the permit is necessary to:

Prevent substantial economic hardship to a user of the permit applicant, or

Allow such user to materially improve the service provided by the permit applicant.

Section 520.300 Work Requirements.

[Ord. No. 1002 §18, 8-9-2000]

Any excavation, backfilling, repair and restoration and all other work performed in the right-of-way shall be done in conformance the APWA specifications as promulgated by the Public Works Director.

The permittee shall employ a testing laboratory as approved by the Public Works Director, which shall certify the proper backfilling on any excavation. Separate testing shall be completed for each day the backfilling occurs. The testing laboratory shall mail the certification directly to the Public Works Director. The permittee shall pay all costs associated with such testing.

The permittee shall notify the office of the Public Works Director when the restoration is complete.

The permittee shall make the work site available to the Public Works Director and to all others as authorized by law for inspection at all reasonable times during the execution of and completion of the work.

At the time of inspection, the Public Works Director may order the immediate cessation of any work which poses a serious threat to the life, health, safety or well-being of the public. The Public Works Director may issue a violation order to the permittee for any work which does not conform to the applicable standards, conditions, code or terms of this permit. The violation order shall state that failure to correct the violation will be cause for revocation of the permit.

Section 520.310 Mapping Data.

[Ord. No. 1002 §19, 8-9-2000]

The permittee shall keep and maintain accurate records and as-built drawings depicting horizontal and vertical location of all facilities constructed, reconstructed, located or relocated in the right-of-way after the date thereof.

Horizontal and vertical data points shall be taken every twenty-five (25) feet or at each change in alignment and at each appurtenance.

Section 520.320 Severability.

[Ord. No. 1002 §20, 8-9-2000]

Section 520.330 City's Failure To Enforce.

[Ord. No. 1002 §21, 8-9-2000]

The City's failure to enforce or remedy any non-compliance of the terms and conditions of this Article or of any permit granted hereunder shall not constitute a waiver of the City's rights nor a waiver of any service provider obligation as herein provided.

Section 520.340 Penalties.

[Ord. No. 1002 §22, 8-9-2000]

The violation of any provision of this Article is hereby declared to be a public offense and any person, firm, association, partnership or corporation convicted of a violation hereof shall be punished by a fine as provided in the City of Mission Municipal Code.

The violation of any provision of this Article is hereby deemed to be grounds for revocation of the service provider's permit and license to operate within the City.

Section 520.350 Reservation of Rights.

[Ord. No. 1002 §23, 8-9-2000]

In addition to any rights specifically reserved to the City by this Article, the City reserves unto itself every right and power which is required to be reserved by a provision of any ordinance under any license granted under this Article. The City shall have the right to waive any provision of this Article or any permit granted thereunder, except those required by Federal or State law, if the City determines as follows:

It is in the public interest to do so, and

The enforcement of such provision will impose an undue hardship on the service provider.

To be effective, such waiver shall be evidenced by a statement in writing signed by a duly authorized representative of the City.

Section 520.360 Repeal of Other Ordinances.

[Ord. No. 1002 §24, 8-9-2000]

All other ordinances and resolutions or parts thereof inconsistent or in conflict with the terms hereof shall be canceled, annulled, repealed and set aside; provided, that this Article shall not take effect or become in force until the requirements for adopting an ordinance as set forth in the City of Mission Municipal Code have occurred.[1]

[1]

Editor’s Note: Former Article III, Transportation, Distribution and Sale of Natural Gas or Other Energy Through Pipelines or Distribution Systems Within Public Right-Of-Way, comprised of Sections 520.370 – 520.440, enacted 8-10-2005 by §§1 – 8 of Ord. No. 1168, which immediately followed, was repealed 8-19-2015 by §11 of Ord. No. 1423. All franchise ordinances are on file in the City offices.