§ 32-28. Use of the right-of-way by service providers.

(a)

Registration of service providers.

(1)

No service provider shall be authorized to use the right-of-way in any capacity or manner without registering and obtaining the necessary right-of-way permit from the unified government.

(2)

All existing service providers must register within 60 days of the effective date of the ordinance from which this article is derived.

(3)

Any person who is not an existing service provider before the effective date of the ordinance from which this article is derived and who wishes to become a service provider must first register with the unified government.

(4)

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

(5)

The information required for registration includes the following:

a.

Identity and legal status of service provider, including related affiliates.

b.

Name, address, telephone number, fax number, and email address of officer, agent, or employee responsible for the accuracy of the registration statement.

c.

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.

d.

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 unified government, the FCC, or the KCC.

e.

Description of the service provider's use or intended use of the right-of-way.

f.

Information sufficient to determine whether the service provider is subject to franchising by state law.

g.

Information sufficient to determine whether the service provider has applied for and received any certificate of authority required by the KCC.

h.

Information sufficient to determine that the service provider has applied for and received any permit or other approvals required by the FCC.

i.

Such other information as may be reasonably required by the unified government to complete the registration statement.

(b)

Other service provider requirements.

(1)

Local agent. 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 article. The service provider shall present to the unified government 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 unified government due to the failure to provide such information to the unified government.

(2)

Right-of-way permit. Before 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 in this article.

(3)

Franchise. Before providing service to the unified government and its residents, the service provider shall first obtain the necessary franchise agreement, if any, from the unified government.

(4)

Coordination. The service provider shall participate in any joint planning, construction, and advance notification of right-of-way work, including coordination and consolidation of excavations as directed by the unified government engineer. In addition, the service provider shall cooperate with other service providers and the unified government 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 excavations.

(5)

Information requested. Within ten days of a request by the unified government, the service provider will provide to the unified government information concerning its facilities as may be reasonably requested.

(6)

Mapping.

a.

Upon request by the unified government engineer, a service provider shall furnish maps showing the alignment of its facilities within the city.

b.

The service provider shall keep and maintain accurate records and as-built drawings depicting accurate horizontal and vertical alignment of all its facilities constructed, reconstructed, relocated, or abandoned in the right-of-way after the effective date of the ordinance from which this article is derived.

c.

When available to the service provider, maps will be submitted electronically in a format compatible with the unified government's geographical information system (GIS). Nothing in this section shall be construed to require the service provider to acquire or modify any electronic mapping system.

d.

Underground facilities shall be differentiated from overhead facilities.

e.

Such mapping and identification shall be at the sole expense of the service provider.

(c)

Service provider's right to sell, transfer, lease, assign, sublet, or dispose of facilities. Except as provided in this section, 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 transfer any rights granted by the unified government to any person either by forced or involuntary sale, or by ordinary sale, consolidation, or otherwise, without notice to the unified government. This provision shall not apply to the sale of property or equipment other than the service provider's facilities or to the sale or lease of facilities to reseller service providers. No notice to the unified government shall be required for a transfer in trust, mortgage, or other similar instrument, in whole or in part, to secure an indebtedness, or for a pro forma transfer to a corporation, partnership, or other entity controlling, controlled by, or under common control with the service provider.

(d)

Facility location and design.

(1)

Review. The design, location, and nature of all facilities shall be subject to the review and consultation of the unified government engineer. Such review shall be based on a nondiscriminatory basis in application of unified government policy.

(2)

Placement of facilities.

a.

Impact on public improvements.

1.

The service provider shall coordinate the placement of facilities in a manner that minimizes adverse impact on any public improvement, as reasonably determined by the unified government. 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.

2.

The service provider shall consider any request made by the unified government concerning placement of facilities in private easements in order to limit or eliminate future public improvement relocation expenses.

b.

Noninterference with unified government and public use. All facilities of the service provider shall be placed so that they do not interfere with the use of right-of-way and public lands. The unified government, through its engineer, shall have the right to consult and review the location, design, and nature of the facility before it is installed. Service providers shall avoid so far as practicable disrupting or interfering with the public's use of the right-of-way. The unified government has the authority to prohibit the use or occupancy of a specific portion of the right-of-way by a service provider if, in the opinion of its engineer, such use or occupancy presents a danger to public health, safety, or welfare.

c.

Noninterference with other ROW-users. A service provider shall not interfere with the facilities of other ROW-users without their permission.

d.

Underground facilities.

1.

Except when waiver is recommended by the unified government engineer and approved by the county administrator, all facilities required to be underground by prior ordinances shall continue to be placed and maintained underground, including, but not limited to, all areas where plats were approved showing underground facilities.

2.

Except when waiver is recommended by the unified government engineer and approved by the county administrator, facilities located at the following locations shall be placed and maintained underground:

(i)

Minnesota Avenue between 2nd Street and 18th Street;

(ii)

Central Avenue between State Line Street and 18th Street;

(iii)

Kansas Avenue between 18th Street and the Kansas River;

(iv)

James Street between the bridge over the Kansas River and State Line Avenue;

(v)

North 5th Street between Central Avenue and Haskell Avenue;

(vi)

North 6th Street between Central Avenue and Oakland Avenue;

(vii)

North 10th Street between Central Avenue and Minnesota Avenue;

(viii)

North 7th Street from Minnesota Avenue to Quindaro Boulevard; and

(ix)

Leavenworth Road from Interstate 635 to Kansas Highway 7.

2.

Except when waived by the unified government engineer, all facilities constructed in new developments shall be located underground.

3.

The service provider shall comply with all requirements of the unified government relating to underground facilities.

4.

If and when the unified government 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 article.

5.

The service provider shall place aboveground facilities underground in conjunction with unified government capital improvement projects and/or at specific locations designated by the unified government, provided that such placement is practical, efficient, economically feasible, and where adequate public rights-of-way exist.

e.

Right-of-way corridors. The unified government engineer may assign specific corridors within the right-of-way for each type of facility. If the unified government engineer has assigned corridors, the right-of-way permits shall indicate the proper corridor for the service provider's facilities. Any service provider 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, at its sole expense, move the facilities to its assigned position within the right-of-way, unless this requirement is waived by the unified government engineer for good cause shown, upon consideration of such factors as the remaining life of the facilities, public safety, user service needs, and hardship to the service provider.

f.

Conduits. If, in the preparation and planning of a right-of-way project, the unified government engineer deems it appropriate for a conduit to be constructed along, across, or under the right-of-way, the unified government engineer shall contact all appropriate service providers for their input on the planning and design of such conduit. If a service provider desires to construct, maintain, or operate facilities along such right-of-way, the unified government engineer may require the service provider to use such conduit, and to contribute to the expense of such conduit; provided, however, the service providers use of the conduit is reasonable and appropriate under the circumstances.

g.

Notification, joint installation, and collocation. Prior to any excavation or installation within the right-of-way, service providers shall provide an affidavit stating the service provider conducted a thorough analysis of available collocation opportunities within its service area. A service provider shall not install new conduit or other facilities where existing conduit is available to the service provider that would reasonably avoid the need for new excavation or overhead installations. Service providers shall identify by mapping, as required by the unified government engineer, the location and specifications of all conduit available or dedicated for collocation.

h.

Additional facilities; planned infrastructure. When any service provider installs any new conduit, the unified government may require the service provider to simultaneously install sufficient additional conduit or other related facilities ("excess conduit") as may be determined by the unified government engineer and in order to reasonably meet the needs of existing and future users of the right-of-way. The criteria for when such conduit will be required, the amount of conduit to be required, management and ownership of the excess conduit, financing of the excess conduit, specifications for the design of the conduit, and related matters shall be established by regulations. The unified government may reserve for its own purposes a portion of any excess conduit dedicated to the unified government. When sections of a service provider's conduit is installed simultaneously with another service provider, the cost of such sections of excess conduit shall also be cost-shared by each service provider as established by regulation. The requirements of this subsection shall be administered on a competitively neutral and nondiscriminatory basis to maximize the available space in the right-of-way and designed to minimize the total number of excavations and cost of total communications infrastructure installation.

i.

Boxes and pedestals. Aboveground pedestals, vaults, antennae, or other facilities may be installed only if approved by the unified government where alternative underground facilities are not feasible or where underground requirements are otherwise waived.

j.

Exclusion of certain locations/facilities. Prior to a service provider's installations of any facilities in the right-of-way and after the service provider provides the unified government with its proposed plans for the facilities, the unified government engineer, in his discretion, may designate certain locations or facilities in the right-of-way to be excluded from use by the service provider for its facilities, including, but not limited to, ornamental or specially-designed street lights or other facilities or locations which in the reasonable judgment of the unified government engineer do not have electrical service adequate or appropriate for the service provider's facilities or cannot safely bear the weight or wind loading thereof, or any other facility or location that in the reasonable judgment of the unified government engineer is incompatible with the proposed facilities or would be rendered unsafe or unstable by the installation. The unified government engineer may further exclude certain other facilities based on considerations of public health, safety, or welfare. The unified government may reserve space within the right-of-way for future public improvements. In the event such exclusions or reservations conflict with the reasonable requirements of the service provider, the unified government will cooperate in good faith with the service provider to attempt to find suitable alternatives, if available, provided that the unified government shall not be required to incur financial cost nor to acquire new locations for the service provider.

(3)

Technical standards.

a.

All technical standards governing construction, reconstruction, installation, repair, operation, testing, use, maintenance, and dismantling of a service provider's facilities in the right-of-way shall be in accordance with applicable federal, state, and local law and regulations or in accordance with standards published by national trade associations commonly associated with the service provided. It is understood that the standards established in this subsection (3)a are minimum standards and the requirements established or referenced in this article may be in addition to or stricter than such minimum standards.

b.

Based on the size and complexity of the planned improvement, the unified government engineer may require that any drawings, plans, and specifications submitted be certified by a state-registered professional engineer stating that such drawings, plans, and specifications comply with the technical provisions and standard drawings and 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.

(4)

Participation in plan review. The service provider shall participate in a review of its plans and shall cooperate promptly and fully with the unified government 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 unified government. Such location and identification shall be at the expense of the service provider without any expense to the unified government.

(e)

Facility removal, relocation, or adjustment.

(1)

The service provider shall promptly remove, relocate, adjust, or temporarily support any facilities located in the right-of-way as directed by the unified government for a public improvement or when reasonably required by the unified government by reason of public health, safety, or welfare. Such removal, relocation, adjustment, or temporary support, including relocation, adjustment, or reconnection of service lines, shall be performed by the service provider at the service provider's sole expense without expense to the unified government, its employees, agents, or authorized contractors and shall be specifically subject to applicable rules, regulations, and schedules of the unified government. The service provider shall proceed with removals, relocations, adjustments, and supports with due diligence upon notice by the unified government.

(2)

If the unified government expands its right-of-way, the service provider shall promptly remove, relocate, or adjust any facilities located in private easement, as directed by the unified government, for a public improvement, at unified government expense, by moving such facilities to areas within the expanded right-of-way or within remaining private easements or remaining portions of such easements neither condemned by nor disclaimed to the unified government to avoid conflict with unified government construction and improvements. The service provider shall disclaim those parts of its easements that lie within the expanded right-of-way.

(3)

As soon as working drawings are available for public improvements that will require the service provider to remove, relocate, adjust, or temporarily support its facilities, the unified government shall provide the service provider with written notice and the anticipated bid letting date of the improvement. The service provider shall respond with any conflicts and a proposed construction schedule within 30 days.

(4)

Following notice by the unified government in the form of the delivery of final design plans for such public improvements, the service provider shall remove, relocate, adjust, or temporarily support its facilities in accordance with the mutually agreed upon schedule. The service provider shall certify to the unified government, in writing, that its facilities have been removed, relocated, adjusted, or supported to clear construction in accordance with project plans provided by the unified government.

(5)

Any damages suffered by the unified government, its agents, or its contractors to the extent caused by the service provider's failure to, in a timely manner, remove, relocate, adjust, or support its facilities, or failure to properly remove, relocate, adjust, or support such facilities, shall be borne by the service provider.

(6)

In the event the service provider is required to remove, relocate, or adjust its facilities in accordance with this section, any ordinary right-of-way permit fee shall be waived.

(7)

It is the intent of this section for both the unified government and the service provider to cooperate with one another so that the need for facility removal, relocation, or adjustment is minimized and, when required and feasible, removals, relocations, and adjustments may be completed before receipt of bids by the unified government for a public improvement.

(8)

Upon the appropriate request of any person having satisfied unified government procedure and ordinances, the service provider 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 it, and the service provider may require such payment in advance. The service provider must be given not less than five 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.

(f)

Right-of-way vacation.

(1)

If the unified government vacates a right-of-way which contains the facilities of a service provider, and if the vacation does not require the relocation of the service provider's facilities, the unified government shall reserve to and for itself, and all service providers having facilities in the vacated right-of-way, an easement for the right to install, maintain, and operate any facilities in the vacated right-of-way and to enter upon such vacated right-of-way at any time for the purpose of reconstructing, inspecting, maintaining, or repairing such facilities.

(2)

If the vacation requires the relocation of facilities:

a.

And the vacation proceedings are initiated by the service provider or by the unified government, the service provider must pay the relocation costs unless otherwise agreed to by the unified government and the service provider.

b.

And the vacation proceedings are initiated by a person other than the service provider or the unified government, such other person must pay the relocation costs.

(3)

Petitions for vacation of any easement or right-of-way shall be filed with the unified government clerk. A fee shall be charged for all such petitions in an amount to be set by the county administrator.

(g)

Abandoned and unusable facilities.

(1)

A ROW-user owning abandoned facilities in the right-of-way must either:

a.

Remove its facilities and replace or restore any damage or disturbance caused by the removal at its own expense, if required by the unified government engineer. However, the unified government engineer may allow underground facilities or portions thereof remain in place if the unified government engineer determines that it is in the best interest of public health, safety or welfare to do so. At such time, the unified government may take ownership and responsibility of such vacated facilities left in place;

b.

Provide information satisfactory to the unified government that the ROW-user's obligations for its facilities in the right-of-way have been lawfully assumed by another authorized ROW-user; or

c.

Submit to the unified government a proposal and instruments for transferring ownership of its facilities to the unified government. If the ROW-user proceeds under this section, the unified government, at its option, may purchase the equipment, require the ROW-user, at its own expense, to remove it or require the ROW-user to post a bond in an amount sufficient to reimburse the unified government for reasonable anticipated costs to be incurred to remove the facilities.

(2)

Facilities of a ROW-user who fails to comply with this section and whose facilities remain unused for two years shall be deemed to be abandoned, unless the unified government receives confirmation that the ROW-user intends to use the facilities. Abandoned facilities are deemed to be a nuisance. The unified government may exercise any remedies or rights it has at law or in equity, including, but not limited to, (a) abating the nuisance, (b) taking possession and ownership of the facility and restoring it to a useable function, or (c) requiring the removal of the facility by the ROW-user.

(h)

Provider responsible for costs. The service provider shall be responsible for all reasonable costs borne by the unified government that are directly associated with its installation, maintenance, repair, operation, use, and replacement of its facilities within the right-of-way and that are not otherwise accounted for as part of the permit fee. All such costs shall be itemized and the unified government's books and records related to these costs shall be made available upon request to the service provider. The service provider shall be responsible for its own costs incurred removing or relocating its facilities when required by the unified government for reasons relating to maintenance and use of the right-of-way for unified government purposes.

(Code 1988, § 32-28; Ord. No. O-104-00, § 8, 11-16-2000; Ord. No. O-114-00, §§ 5, 6, 12-21-2000; Ord. No. O-16-03, § 7, 5-1-2003; Ord. No. O-64-16 , § 1, 10-27-2016)