ORDINANCE NO. 14-10740
AN ORDINANCE AMENDING CHAPTER 35 OF THE CITY CODE BY ESTABLISHING CHAPTER 35, ARTICLE XIII, FOR MANAGING THE EXCAVATION, USE AND OCCUPANCY OF THE PUBLIC RIGHT-OF-WAY BY UTILITY SERVICE PROVIDERS IN THE CITY OF SALINA, KANSAS.
WHEREAS, the public rights-of-way are a unique public resource held in trust by the city for the benefit of the public; these physically limited resources require proper management by the city to maximize the efficiency and minimize the costs to taxpayers, to protect against the foreclosure of future economic expansion because of premature exhaustion of the right-of-way, and to minimize the inconvenience to and potential adverse effects on the health, safety, and welfare of the city and its residents;
WHEREAS, the use of the public right-of-way is increasing due to the advancements in technology, changes in federal and state law, and increased demand for utility services from residents and businesses located in the city; and
WHEREAS, the Governing Body finds that the public convenience, health, safety, and welfare can be best served by establishing regulations and procedures relating to the excavation of the public right-of-way by utility service providers, and utility service providers’ installation, construction, maintenance, and operation of lines, conduits, wires, fiber optic cables, pipes, pipelines, poles, towers, vaults, appliances, and related facilities on, in, above and under the public right-of-way.
BE IT ORDAINED by the Governing Body of the City of Salina, Kansas:
Section 1. Article XIII of Chapter 35 of the Salina Code is hereby established to read as follows:
ARTICLE XIII. RIGHT-OF-WAY MANAGEMENT
Sec. 35-391. Purpose.
(a) To recognize the city’s primary role as chief steward of the right-of-way and its duty to its citizens to recover the costs of managing the right-of-way and incursions into it;
(b) To clarify and regulate conditions of occupancy and construction for those ROW-users occupying space within the city’s right-of-way given the anticipated increased use of the right-of-way by various ROW-users throughout the city;
(c) To recognize the necessity for sound management practices in light of the increased use of the right-of-way and the fact that the right-of-way is a limited resource;
(d) To treat each ROW-user equitably and in a competitively neutral and nondiscriminatory manner with considerations that may be unique to the technologies and situation of each particular ROW-user;
(e) To minimize disruption, visual impact or inconvenience to the public, and to preserve the public health, safety and welfare; and
(f) To comply with state and federal legislation.
Sec. 35-392. Definitions.
Whenever used in this article, the following terms and their derivations shall be defined as follows:
(a) Applicant means any person required to obtain a right-of-way permit under this article.
(b) Construct means and includes to construct, install, erect, build, affix or otherwise place any fixed structure or object within the right-of-way.
(c) Day means calendar day unless otherwise specified.
(d) Emergency means a condition that (a) poses a clear and immediate danger to life or health, or of a significant loss of property; or (b) requires immediate repair or replacement in order to restore utility service to a user.
(e) Excavate means to dig into or in any way remove or physically disturb, alter or penetrate any right-of-way surface or subsurface, or any portion thereof.
(f) Excavation Fee means the fee that may be charged by the city for each street or pavement cut, which is intended to recover the costs associated with construction, repair and restoration activity of the ROW-user.
(g) FCC means Federal Communications Commission.
(h) Facilities means lines, pipes, wires, cables, conduit, ducts, poles, towers, vaults, pedestals, boxes, appliances, transmitters, gates, meters, appurtenances, or any other appurtenance, structure, property, or tangible thing, which are owned, leased, operated, or licensed by a utility service provider to provide utility services and are located or proposed to be located in the right-of-way.
(i) KCC means the Kansas Corporation Commission.
(j) Pavement means and includes Portland cement concrete pavement, asphalt concrete pavement, asphalt treated road surfaces and any aggregate base material.
(k) Permit and Inspection Fee means the fee charged by the city to recover its costs incurred for right-of-way management, including, but not limited to, costs associated with registering applicants; issuing, processing, and verifying right-of-way permit applications; inspecting job sites and restoration of improvements; determining the adequacy of right-of-way restoration; revoking right-of-way permits; and other costs the city may incur in managing the provisions of this article.
(l) Permittee means any person to whom a right-of-way permit has been issued by the city under this article.
(m) Project Work means any activity, including construction, reconstruction, repair, installation, maintenance, relocation, or replacement of any facilities in the right-of-way, and the repair or restoration of any right-of-way or other property that is required by this article.
(n) Public Improvement means any project undertaken by the city for the construction, reconstruction, maintenance, or repair of any public infrastructure, including, without limitation, streets, alleys, bridges, bikeways, parkways, sidewalks, sanitary sewer, storm sewer, water system, drainage facilities, traffic control devices, streetlights, public facilities, public buildings and public lands.
(o) Public Lands means any real property of the city that is not right-of-way.
(p) Repair and Restoration costs means those costs associated with repairing and restoring the public right-of-way because of damage caused by the ROW-user in the right-of-way.
(q) Restore or Restoration means the process by which all portions of the right-of-way and surrounding areas, including pavement and foundation, sidewalks, sod, landscape features, utilities, other public improvements or improvements of any kind damaged or removed by the ROW-user are repaired and returned to the same condition, or better, that existed before the commencement of the project work.
(r) Right-of-Way means the area of real property in which the city has a dedicated or acquired right-of-way interest in the real property. It shall include the area on, below, or above the present and future streets, alleys, avenues, roads, highways, parkways or boulevards dedicated or acquired as right-of-way. The term does not include the airwaves above a right-of-way with regard to wireless telecommunications or other non-wire telecommunications or broadcast service, easements obtained by utilities or private easements in platted subdivisions or tracts.
(s) Right-of-Way Permit means the authorization to perform any work regulated by this article within the right-of-way.
(t) Routine Service Operation means a project work activity that: (a) does not require excavation of the street; (b) involves the repair, replacement, or modification of existing facilities in a manner that does not involve a material change to the location or size of the existing or replaced facilities; and (c) except in the case of an emergency situation, is performed without disrupting traffic on an arterial street or closing a residential street for a duration of greater than four (4) hours.
(u) ROW-User means a utility service provider and its authorized agent, contractor, or subcontractor that uses or intends to use the right-of-way for purposes of work, excavation, or provision of utility services, or to install, construct, maintain, or repair facilities thereon, regardless of whether such person or entity is the owner of the facilities. A ROW-user shall not include contractors and city employees working on the construction, reconstruction, maintenance, or repair of public improvements.
(v) Street means the pavement and subgrade of a city residential, collector or arterial roadway, including curb and gutter.
(w) Utility Service means a service or commodity provided by means of a delivery system that is comprised of facilities located or to be located in the right-of-way, including, but not limited to, gas, telephone, cable television, internet services, open video systems, alarm systems, steam, electric, water, telegraph, data transmission, petroleum pipelines, and storm or sanitary sewerage.
(x) Utility Service Provider means any person owning, possessing or having an interest in facilities in the right-of-way that are used for the provision of a utility service for or without a fee; provided, that this definition shall also include persons owning, possessing or having an interest in facilities in the right-of-way that are used by, may be used by or are intended for use by another person, in whole or in part, to provide a utility service for or without a fee, regardless of whether the actual facilities owner provides any utility service.
Sec. 35-393. Policy.
(a) It is the policy of the city to authorize the use of the right-of-way in a competitively neutral, non-discriminatory manner that maximizes the efficient use of and conserves the right-of-way and minimizes the burden on the right-of-way, physically and aesthetically. Any use of the right-of-way by a ROW-user shall be subject to the terms and conditions hereof, in addition to all rules, laws, regulations, policies, resolutions, ordinances, technical specifications, and design criteria now or hereafter adopted or promulgated by the city in the reasonable exercise of its police power, and adopted by any other governmental entities now or hereafter having jurisdiction.
(b) This article is designed to regulate occupancy and excavations in the right-of-way by utility service providers and their authorized agents, contractors, and subcontractors. Nothing herein shall be construed to limit the applicability of other provisions of the city code, or the city’s right to establish additional or alternative regulations, relating to the use or occupancy of the right-of-way by other types of users, including but not limited to adjoining land owners.
Sec. 35-394. Administration.
The director of public works is the principal city official for management of the right-of-way and administration of this article.
Sec. 35-395. Registration of utility service providers.
(a) Any existing utility service provider must register with the director of public works within sixty (60) days of the effective date of this article. Any person, who is not an existing utility service provider prior to the effective date of this article and who wishes to become a utility service provider, must first register with the city.
(b) No utility service provider shall be authorized to utilize the right-of-way in any capacity or manner without registering and obtaining the necessary right-of-way permit from the city in accordance with this article.
(c) The utility service provider shall report any changes in its registration information within thirty (30) days of the change, or upon application for a right-of-way permit, whichever occurs first.
(d) The information required for registration includes the following:
(1) Identity and legal status of utility service provider, including related affiliates.
(2) Name, address, telephone number, fax number and email address of officer, agent or employee responsible for the accuracy of the registration statement.
(3) Name, address, telephone number, fax number and email address of the local representative of the utility service provider who shall be available at all times to act on behalf of the utility service provider in the event of an emergency.
(4) Information sufficient to determine whether the utility service provider has applied for and received 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 state of Kansas, the city, the FCC or the KCC.
(5) Description of the utility service provider’s intended use of the right-of-way.
(6) A list of authorized agents, contractors, or subcontractors eligible to apply for and obtain permits on behalf of the utility service provider. A registration may be updated to add such authorized agents, contractors, or subcontractors at any time, if such updates are submitted by an authorized representative of the utility service provider.
(7) Information sufficient to determine whether the utility service provider is subject to franchising by Kansas law.
(8) Such other information as may be reasonably required by the city to determine the nature of the utility service provider’s existing or proposed use of the right-of-way.
(e) Each utility service provider shall designate a person familiar with the facilities to act as a local agent for the utility service provider and will be responsible for satisfying information requirements of this article. The utility service provider shall present to the city the agent’s name, address, telephone number, fax number and email address. The agent shall be the person to whom relocation notices and other such notices shall be sent, and with whom rests the responsibility to facilitate all necessary communications. The utility service provider shall be responsible for all costs incurred by the city due to the failure to provide such information to the city.
(f) Prior to providing utility service to the city and its residents, the utility service provider shall first obtain the necessary franchise agreement, if any, from the City.
(g) The utility service provider shall participate in any joint planning, construction and advance notification of right-of-way work, including coordination and consolidation of street cut work as directed by the director of public works. In addition, the utility service provider shall cooperate with other utility service providers and the city for the best, most efficient, most aesthetic and least obtrusive use of the right-of-way, consistent with safety, and to minimize traffic and other disruptions, including street cuts.
Sec. 35-396. Permit requirement.
(a) Except as otherwise provided, no ROW-user may excavate any right-of-way or conduct any repair, construction, or reconstruction of facilities located within the right-of-way without first having obtained a right-of-way permit.
(b) The requirement of a right-of-way permit shall not apply to registered utility service providers performing routine service operations.
(c) An emergency situation shall not exempt a ROW-user from obtaining a right-of-way permit for applicable work activities. However, if due to an emergency it is necessary for the ROW-user to immediately perform work in the right-of-way, and it is impractical for the ROW-user to first obtain the permit, the ROW-user may perform the work, and the required permit shall be obtained within the next three (3) business days observed by the city.
(d) Except in the case of emergency work, any ROW-user who is found to be working in the right-of-way without a required permit will be directed to stop work until a permit is acquired and properly posted at the work site.
(e) In addition to the provisions of this article, the permitting and other requirements for poles, antennas, and equipment related to wireless communication facilities in the public right-of-way shall be subject to the provisions of section 42-70.
Sec. 35-397. Permit applications.
(a) Right-of-way permit applications shall be on a form furnished by the city and completed and submitted to the director of public works by the utility service provider or an authorized agent who will perform the work, with the following information, as applicable:
(1) Construction plans and specifications, including the following information:
i. The location of all visible topographic features affected by the proposed project work within the right-of-way;
ii. The horizontal and vertical locations of other facilities in the right-of-way within the project area, verified by compiling data from other ROW-users and acquisition of field data;
iii. Complete plan and profile drawings indicating the horizontal and vertical location of all components of the proposed project, the design details of such proposed work, and other related information including, but not limited to, pipe and manhole flow line elevations, type and size of proposed facilities with elevations, and other related structures; and
iv. Complete plan and profile drawings detailing the restoration of the right-of-way and the design details of such restoration, all in accordance with this article.
(2) A construction schedule, indicating the extent and duration of excavation work and restoration work, and proposed start and end dates.
(3) A safety plan indicating the methods used to protect the general public from injury including, but not limited to, the proposed use of barricades, signs, lights, fencing and other barriers.
(4) A traffic control plan.
(5) Evidence that the permittee, and any contractor, agent, affiliate, employee, or subcontractor used by the permittee to perform the project work is properly licensed under applicable law.
(6) Payment of all permit fees and costs, including any such fees and costs due and unpaid from the applicant for prior excavation costs; for any loss, damage or expense suffered by the city because of the applicant’s prior excavations of the right-of-way; or for any emergency actions taken by the city, unless the payment of such money is in dispute and timely appealed as provided hereafter.
(7) 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 FCC or the KCC.
(8) A liability insurance certificate and performance and maintenance bond, or evidence that the applicant has previously filed and currently maintains such insurance certificate and bond, as required by this article.
(9) Such other information as may be reasonably required by the city to assess the risk to the public or the right-of-way by reason of the ROW-user’s proposed activities.
(b) Two or more applicants may apply jointly for permits to work in the right-of-way at the same time and place. Applicants who apply for and receive a joint right-of-way permit shall be held jointly and severally liable for all applicable permit fees and costs, and for the repair, restoration, and all other costs as set forth herein.
Sec. 35-398. Liability insurance, performance and maintenance bond.
Except as otherwise provided in or as supplemented by any franchise agreement, license agreement, or permit, and before a permittee commences any project work in the right-of-way, the permittee shall secure and maintain, and file with the city evidence of:
(a) Liability insurance with an insurance company admitted to do business in Kansas, in an amount not less than $1,000,000 per occurrence and $2,000,000 in the aggregate. The insurance will protect the city from and against all claims by any person whatsoever for loss or damage from personal injury, bodily injury, death, or property damage to the extent caused or alleged to have been caused by the negligent acts or omissions of the permittee. If the permittee is self-insured, it shall provide the city proof of compliance regarding its ability to self insure and proof of its ability to provide coverage in the above amounts.
(b) A performance and maintenance bond in a form approved by the city attorney, covering the period consisting of the term of the permit and three (3) years thereafter. The amount of the bond will be $5,000 or the value of the restoration, whichever is greater, conditioned upon the permittee’s faithful performance of the provisions, terms and conditions of this article. Alternatively, if the applicant anticipates requirements for multiple right-of-way permits, the applicant may choose to meet the bond requirements by maintaining an annual or blanket bond, in the amount of $50,000. If the city exercises its right to revoke a permit as provided herein, or if the permittee shall fail to faithfully perform all of the provisions, terms and conditions of this article, then the city shall be entitled to recover under the terms of the bond the full amount of any loss occasioned. The provisions of this subsection shall be deemed satisfied if similar security is provided in compliance with a franchise agreement.
Sec. 35-399. Supplementary applications.
(a) A right-of-way permit shall only be valid for the area of the right-of-way specified within the permit. No 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 utilized must, prior to the commencement of work in that greater area: (a) make application for a permit extension and pay any additional fees required thereby; and (b) receive a new right-of-way permit or permit extension.
(b) A right-of-way permit shall be valid only for the dates specified in the permit. No permittee may commence work before the permit start date or, except as provided herein, 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 right-of-way permit or a permit extension for additional time. This supplementary application must be submitted to the city prior to the permit end date.
Sec. 35-400. Right-of-way permit fees and costs.
(a) The right-of-way permit fees shall be recommended by the director of public works, approved by the board of commissioners and listed in the fee schedule adopted pursuant to section 2-2.
(b) The right-of-way permit fees may include a permit and inspection fee, and an excavation fee. The city may also charge and collect any necessary repair and restoration costs in accordance with the terms of this article.
(c) Except for emergency situations, a ROW-user found to have worked or to be working in the right-of-way without having obtained a required permit shall pay a fee double the amount required by the fee schedule.
(d) The right-of-way permit fees shall be waived:
(1) When required by a valid franchise between the city and the ROW-user, except the city may charge and collect repair and restoration costs from any such ROW-user;
(2) When the ROW-user is required to remove, relocate or adjust facilities located in the right-of-way at the direction of the city to facilitate a public improvement; and
(3) When a request for an extension of an existing permit is made prior to the expiration of the existing permit.
Sec. 35-401. Issuance of permit.
(a) The city shall process each valid and administratively complete application for a right-of-way permit within ten (10) business days.
(b) The director of public works may, subject to applicable state and federal law, deny a permit or prohibit the use or occupancy of a specific portion of the right-of-way, or impose reasonable conditions upon the issuance of a right-of-way permit, to protect the public health, safety and welfare, to prevent interference with the safety and convenience of ordinary travel over the right-of-way, or when necessary to protect the right-of-way and its users. The director of public works may consider all relevant factors including but not limited to:
(1) The extent to which the right-of-way space where the permit is sought is available;
(2) The competing demands for the particular space in the right-of-way;
(3) The availability of other locations in the right-of-way for the facilities of the applicant;
(4) The applicability of any ordinance or other regulations that affect the location of facilities in the right-of-way;
(5) The degree of compliance of the applicant with the terms and conditions of its franchise, this article, and other applicable ordinances and regulations;
(6) The degree of disruption to the surrounding community and businesses that will result from the use of that part of the right-of-way; and
(7) The balancing of costs of disruption to the public and damage to the right-of-way, against the benefits to that part of the public served by the construction in the right-of-way.
(c) Issued permits are not transferable, except to an affiliate, parent or subsidiary that has registered with the city pursuant to section 35-395 of this article.
(d) If permitted work is being done for a ROW-user by another person, a contractor, subcontractor, or otherwise, the person doing the work and the ROW-user shall be jointly liable and responsible for all damages, obligations, and warranties herein described.
(e) Obtaining a right-of-way permit under this article shall not relieve a ROW-user of its duty to obtain any necessary permit, license, certification, grant, registration, franchise agreement or any other authorization required by any governmental entity, including, but not limited to, the city, the FCC or the KCC, or its duty to pay any fees required by any other city, county, state, or federal rules, laws, or regulations.
(f) 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 director of public works and the public.
Sec. 35-402. Breach; revocation of permit.
(a) The city reserves the right, as provided herein, to revoke any right-of-way permit, without refund of the permit fee, in the event of a breach of the terms and conditions of any law or the right-of-way permit. A breach shall include, but shall not be limited to, the following:
(1) The violation of any provision of the right-of-way permit, this article, or other applicable law;
(2) An evasion or attempt to evade any material provision of the right-of-way permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the city or its citizens;
(3) Any material misrepresentation of any fact in the permit application;
(4) The failure to maintain the required bond or insurance;
(5) The failure to complete the project work by the date specified in the right-of-way permit, unless a permit extension is obtained;
(6) The failure to correct a condition indicated on an order issued pursuant to this article;
(7) Repeated traffic control violations; or
(8) Failure to repair facilities damaged in the right-of-way.
(b) If the director of public works determines that the permittee has committed a breach as specified above, the director of public works shall make a written demand upon the permittee to remedy such breach. The demand shall state that the continued violation may be cause for revocation of the permit, or legal action, if applicable. Further, a breach will allow the director of public works, at his or her discretion, to place additional or revised conditions on the right-of-way permit, specifically related to the manner in which the breach is cured by the permittee. Within five (5) calendar days of receiving notification of the breach, the permittee shall contact the director of public works with a plan, acceptable to the director of public works, for correction of the breach. The permittee’s failure to contact the director of public works, failure to submit an acceptable plan, or failure to reasonably implement the approved plan shall be cause for immediate revocation of the right-of-way permit.
(c) If a right-of-way permit is revoked, the permittee shall also reimburse the city for its reasonable costs, including administrative costs, restoration costs, and the costs of collection and reasonable attorneys’ fees incurred in connection with such revocation.
Sec. 35-403. Project work standards.
(a) All project work shall comply with the requirements of this article and the terms and conditions of any right-of-way permit issued in connection with such project work.
(b) Prior to the commencement of any excavation, a ROW-user shall:
(1) Identify and locate any underground facilities to be spray painted according to the Uniform Color Code required by the Kansas One Call system, and notice shall also be provided directly to the city’s utilities department; and
(2) At the discretion of the director of public works, stake the route(s) to confirm the horizontal location and vertical elevation of any water, sanitary sewer and storm sewer lines along the route, and obtain the city’s approval of such horizontal and vertical locations prior to beginning excavation or installation of any facilities.
(c) The ROW-user shall not at any one time excavate more of the right-of-way than shall be reasonably necessary to enable the ROW-user to complete the project work in the most expeditious manner. Except in cases of an emergency or with approval of the director of public works, no right-of-way work may be done when conditions are unreasonable for such work.
(d) The ROW-user shall not disrupt a right-of-way in any manner which causes interference with the natural free and clear passage of water through the gutters or other waterways.
(e) The ROW-user 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 or which reduces traffic flow to less than two lanes of moving traffic for more than four hours. Except in the event of an emergency, no such closure shall take place without notice and prior authorization from the city.
(f) To minimize disruption to traffic, non-emergency work on arterial streets shall not be performed during the hours of 7:00 a.m. to 8:30 a.m. and 4:00 p.m. to 6:00 p.m., or on holidays or weekends, unless prior approval is received from the director of public works. In any event, the ROW-user shall perform work on the right-of-way at such times that will allow the least interference with the normal flow of traffic and the peace and quiet of the neighborhood.
(g) All work performed in the right-of-way or which in any way impacts vehicular or pedestrian traffic shall be properly signed, barricaded, and otherwise protected at the ROW-user’s expense. The ROW-user shall also be responsible for providing adequate traffic control and passage to the surrounding area as determined by the director of public works. Such signage, barriers, and traffic control shall be in conformance with the latest edition of the Manual on Uniform Traffic Control Devices, as applicable.
(h) The ROW-user shall use excavatable, low-strength flowable fill as backfill on any street cut. This requirement may be waived or changed when appropriate in the discretion of the director of public works. In such event, the director of public works may require the ROW-user to employ an approved testing laboratory, which shall certify the proper back-filling on any street cut. The ROW-user shall pay all costs associated with such testing.
(i) If an excavation cannot be back-filled immediately and is left unattended, the ROW-user shall secure the unfilled excavation. The ROW-user has sole responsibility for maintaining proper barricades, safety fencing and lights as required, from the time of opening of the excavation until the excavation is surfaced and opened for travel.
(j) Upon completion of an excavation to install new underground facilities, the ROW-user shall insert a metal marker or other approved marking device into the excavation of the restored pavement, which shall identify the ROW-user’s presence in the right-of-way.
(k) The director of public works shall, from time to time, prepare standard plans and specifications for the making of excavations in the right-of-way, for the making of pavement cuts and for refilling and tamping the same, and for repairing and restoring pavement, which shall be filed in the offices of the city clerk and the city engineer, and it shall be a condition of any permit issued under this article that the ROW-user shall comply in all respects with all such standard plans and specifications.
(l) All facilities and other appurtenances laid, constructed and maintained by the ROW-user shall be laid, constructed and maintained in accordance with acceptable engineering practice and in full accord with any and all applicable engineering codes and in accordance with applicable all applicable rules and regulations of the KCC and any other local, state or federal agency having jurisdiction over the parties.
(m) Except as otherwise specifically requested by an applicant and approved by the city in the issued right-of-way permit, 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 applicable federal, state and local law and regulations, including those promulgated by national trade associations commonly associated with the utility 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 article may be in addition to or stricter than such minimum standards. The director of public works 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.
Sec. 35-404. Protection of property; property damage.
(a) The ROW-user shall be liable for any damages to underground facilities due to excavation work prior to obtaining the location of such facilities, or for any damage to underground facilities that have been properly identified prior to excavation. The ROW-user shall not make or attempt to make repairs, relocation or replacement of damaged or disturbed facilities without the approval of the owner of the facilities.
(b) It shall be the responsibility of the ROW-user to take adequate measures to protect and defend its facilities in the right-of-way from harm and damage. The city shall not be liable for any damage to or loss of any of the ROW-user’s facilities within the right-of-way as a result of or in connection with any construction, excavation, grading, filling or work of any kind, including public improvements by or on the behalf of the city, except to the extent caused by the negligent acts or omissions of the city.
(c) If the ROW-user severely disturbs or damages the root structure of any tree in the right-of-way to the detriment of the health and safety of the tree, the ROW-user will be required to remove, and may be required to replace, the tree at the ROW-user’s cost. The type and size of such replacement tree shall be reasonably determined by the city forester. Further, in review of the ROW-user’s plan, the city forester, in his or her discretion, may require the ROW-user to directionally bore around any tree in the right-of-way.
(d) The ROW-user shall be responsible to the city and its agents, representatives, and authorized contractors for all damages suffered by them including, but not limited to, delay damages, repair costs, construction delays, penalties or other expenses of any kind arising out of the failure of the ROW-user to timely perform any of its obligations under this article to the extent caused by the acts or omissions of the ROW-user.
Sec. 35-405. General right-of-way use regulations.
(a) The ROW-user’s use and occupancy of the right-of-way shall always be subject and subordinate to the reasonable public health, safety and welfare requirements and regulations of the city. The city may reserve sufficient space within the right-of-way for existing or future public improvements.
(b) The ROW-user shall coordinate the placement of facilities in a manner which minimizes adverse impact on any public improvement, as reasonably determined by the city. The facilities shall be placed with adequate clearance from such public improvements so as not to impact or be impacted by such public improvement.
(c) All facilities shall be located 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 performing work in connection with its facilities, avoid, so far as may be practicable, disrupting or interfering with the lawful use of the right-of-way or other public lands of the city. The ROW-user shall not interfere with the facilities of the other ROW-users without their permission.
(d) The ROW-user shall participate in the Kansas One Call utility location program with respect to all of its facilities in the right-of-way.
(e) Whenever reasonably possible, all newly constructed facilities shall be located underground; provided, however, that a ROW-user may attach permitted facilities to an existing above-ground utility pole with permission from the pole owner. The ROW-user shall comply with all requirements of the city relating to underground facilities, including but not limited to section 36-78. This requirement may be waived by the director of public works at his or her discretion, for safety concerns or some other good cause, taking into account industry practices, costs, technological considerations, and other relevant factors, so long as such waiver does not cause discrimination among similarly-situated ROW-users. If this requirement is waived, the facilities shall be located in accordance with the requirements of the director of public works and any other applicable provisions of the city code, including, but not limited to, requirements regarding location, height, and appearance.
(f) Except as otherwise provided by applicable law, if the city requires or negotiates to have a ROW-user cease using its existing poles and to relocate its facilities underground, all other ROW-users using the same poles shall also relocate their facilities underground at the same time, at their sole expense, unless this requirement is waived by the director of public works for good cause shown.
(g) The director of public works 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 is expected to someday be, located within the right-of-way. A right-of-way permit issued by the director of public works may 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 the director of public works for good cause shown.
(h) If, in the preparation and planning for a right-of-way project, the director of public works deems it appropriate for a conduit to be constructed along, across or under the right-of-way, the director of public works 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 director of public works may require the ROW-user to use such conduit, and to contribute to the expense of such conduit, provided, however, the ROW-user’s use of the conduit is reasonable and appropriate under the circumstances.
(i) 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 sole expense of the ROW-user.
Sec. 35-406. Trimming of trees.
The city forester, upon the review and approval of a plan and details for trimming trees in the right-of-way, may grant permission by permit to any ROW-user to trim or remove trees upon and overhanging the right-of-way so as to prevent the branches of such trees from coming into contact with the facilities of the ROW-user. Permission to trim and remove trees may also be granted by the terms of a franchise agreement.
Sec. 35-407. Right-of-way repair and restoration.
(a) After any excavation or project work in the right-of-way, the ROW-user shall restore the right-of-way to the reasonable satisfaction of the director of public works.
(b) If the ROW-user fails to restore the right-of-way in the manner and to the condition required by the director of public works, or fails to satisfactorily and timely complete all restoration, the city may, at its option, serve written notice upon the ROW-user and its surety (as applicable) that, unless within five (5) days after serving of such notice, a satisfactory arrangement can be made for the proper restoration of the right-of-way, the city may take over the work and prosecute the same to completion, by contract or otherwise, at the expense of the ROW-user, and the ROW-user and its surety (as applicable) shall be liable to the city for any and all costs incurred by the city by reason of such prosecution and completion.
(c) Upon determination that such restoration is a public safety matter, the director of public works may order that all restoration work be commenced within twenty-four (24) hours of notice from the city. If such restoration work is not timely commenced, the city may proceed to perform the restoration work, in which case the ROW-user shall be liable to and reimburse the city for the cost thereof plus penalties.
(d) In restoring the right-of-way, the ROW-user guarantees its project work, except restored vegetation, and shall maintain such work for thirty-six (36) months following completion of all project work. During the thirty-six (36) month period, the ROW-user shall, upon notification from the director of public works, correct all guaranteed restoration work to the extent necessary, using any method as required by the director of public works. The work shall be completed within a reasonable time, not to exceed thirty (30) calendar days after the receipt of notice from the director of public works (excluding days on which work cannot be done because of circumstances constituting force majeure). In the event the ROW-user is required to perform new restoration pursuant to the foregoing guarantee, the director of public works shall have the authority to extend the guarantee period for such new restoration for up to an additional thirty-six (36) months from the date of the new restoration. The thirty-six (36) month guarantee period shall be applicable to failures or defects above or below the surface.
(e) Notwithstanding the requirements of this section, the city shall have the option to perform or cause to be performed any street restoration work, at the director of public work’s sole discretion. In such case, the ROW-user shall reimburse the city for any reasonable and actual costs incurred in restoring the street to the same condition that existed before the commencement of the ROW-user’s project work, within thirty (30) days of receipt of a statement for such costs. The thirty-six (36) month guarantee shall not apply to any street restoration work performed by the city or its contractors under this subsection.
Sec. 35-408. Inspections.
(a) The ROW-user shall make the project work site available to the director of public works, and all others authorized by law, for inspection at all reasonable times during the performance of project work, including restoration work.
(b) For excavation work involving backfilling, the ROW-user shall notify the director of public works to schedule an inspection at the start of backfilling.
(c) Upon completion of all restoration work pursuant to a right-of-way permit, the ROW-user will schedule a closeout inspection. For efficiency, the director of public works may approve alternate inspection or self-certification procedures for ROW-users whose operations require frequent excavations on a continuing basis.
(d) On the basis of any inspection, the director of public works may order the ROW-user to correct any project work to comply with the terms of a permit or other applicable standards, conditions, or laws. The order shall state the violation, the terms of correcting the violation, and that failure to correct the violation within the stated time limits shall be cause for revocation of the permit and/or may result in the city restoring the right-of-way, in which case the ROW-user shall be liable to and reimburse the city for the cost thereof plus penalties. Provided, however, than the failure to issue such an order after any inspection shall not be deemed a waiver of the city’s rights to require subsequent compliance with the terms of a permit or other applicable standards, conditions, or laws.
(e) At the time of any inspection, the director of public works may order the immediate cessation of any work that poses a serious threat to the life, health, safety, or welfare of the public. The director of public works may issue a stop-work order to the ROW-user for any work that does not conform to the applicable standards, conditions, code or terms of the permit, this article, or other applicable law. The stop-work order shall state that failure to correct the violation will be cause for revocation of the permit.
Sec. 35-409. Mapping requirement.
(a) Each utility service provider shall keep and maintain accurate records and as-built drawings, at its own expense, depicting the accurate location of all its facilities located in the right-of-way. Underground facilities shall be differentiated from aboveground and overhead facilities.
(b) Within ten (10) days of a request by the city, the utility service provider will provide to the city information concerning such facilities as may be reasonably requested.
(c) When available to the utility service provider, such information will be submitted electronically in an AutoCad® format to the extent compatible with the city’s Geographical Information Systems (GIS); provided, however, that nothing herein shall be construed to require the utility service provider to acquire or modify any electronic mapping system.
Sec. 35-410. Facility relocation.
(a) The ROW-user shall promptly remove, relocate or adjust any facilities located in the right-of-way as directed by the city to accomplish construction and maintenance activities directly related to improvements for the health, safety and welfare of the public. Such removal, relocation, or adjustment shall be performed by the ROW-user at its sole expense, and shall be subject to all rules, regulations and schedules of the city. The ROW-user shall proceed with relocations upon notice to proceed given by the director of public works.
(b) As soon as working drawings are available for public improvements that will require the ROW-user to relocate its facilities, the city shall provide the ROW-user with written notice of relocations and the anticipated bid letting date for the public improvement. The ROW-user shall respond with any conflicts and a proposed construction schedule within thirty (30) days.
(c) Following notice by the city in the form of the delivery of final design plans for such public improvements, the ROW-user shall remove and relocate its facilities in accordance with the mutually agreed upon schedule, provided the project is not delayed by adverse weather conditions and other factors beyond the control of the ROW-user. The ROW-user shall certify to the city, in writing, that its facilities have been relocated or adjusted to clear construction in accordance with project plans provided by the city.
(d) Any damages suffered by the city, its agents or its contractors as a result of the ROW-user’s failure to timely or properly relocate or adjust its facilities shall be borne by the ROW-user.
(e) It is the intent of this section for both the city and the ROW-user to cooperate with one another so that the need for facility relocation is minimized and, when required and feasible, relocations may be completed prior to receipt of bids by the city for a public improvement.
Sec. 35-411. Right-of-way vacation.
(a) If the city vacates a right-of-way which contains the facilities of a ROW-user, and if the vacation does not require the relocation of the ROW-user’s facilities, the city shall reserve, to and for itself and all ROW-users 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 the same.
(b) If the vacation requires the relocation of facilities, and:
(1) If the vacation proceedings are initiated by the ROW-user, the ROW-user must pay the relocation costs.
(2) If the vacation proceedings are initiated by the city, the ROW-user must pay the relocation costs unless otherwise agreed to by the city and the ROW-user.
(3) If the vacation proceedings are initiated by a person other than the ROW-user or the city, such other person must pay the relocation costs.
Sec. 35-412. Duty to remove facilities from right of way.
(a) The director of public works may order a ROW-user to remove its facilities from the right-of-way, at the ROW-user’s own expense, whenever the following occurs:
(1) The ROW-user ceases to operate the facilities for a continuous period of twelve (12) months;
(2) The ROW-user ceases or fails to complete construction of the facilities outlined in the right-of-way permit within the term or duration of the permit;
(3) The ROW-user’s right-of-way permit is revoked;
(4) The ROW’s user’s construction or installation of the facilities, or any portion of the project work, is determined to have been performed in violation of the terms of a permit, this article, or other applicable standards, conditions, or laws, and the ROW-user fails to correct, repair, or redo such work within thirty (30) days after notice from the director of public works.
(b) If such facilities are not removed voluntarily by the ROW-user, the director of public works may notify the ROW-user that if removal of the facilities is not accomplished within a reasonable time specified, the city may remove the facilities at the ROW-user’s expense.
(c) When a ROW-user removes its facilities from the right-of-way, it shall, at its own expense and in a manner approved by the director of public works, replace and restore the right-of-way in accordance with the repair and restoration requirements of this article.
(d) The director of public works may, upon written application by a ROW-user, approve the abandonment of any facilities in place under such terms and conditions as the director of public works may approve, in writing, including but not limited to requiring the ROW-user to post a bond in an amount sufficient to reimburse the city for reasonable anticipated costs to be incurred to remove the facilities. Upon the approval of any proposed abandonment of facilities in place, the ROW-user shall cause to be executed, acknowledged, and delivered to the city such instruments as the director of public works shall prescribe and approve to transfer and convey the ownership of such property to the city.
Sec. 35-413. Transfer of ownership or control of facilities.
A ROW-user shall provide written notice to the city within thirty (30) days of any sale, transfer, lease, assignment, sublease or disposal of its facilities, or any portion thereof, that are located in city right-of-way, or any right, title or interest in the same. Provided, however, that this provision shall not apply to the lease of facilities located in the right-of-way, or to the lease or sale of the capacity or bandwidth of such facilities, if such lease or sale is authorized by the city pursuant to a valid franchise agreement. No notice to the city shall be required for a transfer in trust, mortgage, or other similar instrument, in whole or in part, to secure indebtedness, or for a pro forma transfer to a corporation, partnership, or other entity controlling, controlled by or under common control with the ROW-user.
Sec. 35-414. Appeals process.
(a) Whenever a ROW-user shall deem itself aggrieved by any decision or action taken by the director of public works, such ROW-user may file an appeal to the board of commissioners within ten (10) calendar days of the date of notice of such decision or action.
(b) The ROW-user shall be afforded a hearing on the matter before the board of commissioners within thirty (30) days of filing the appeal.
(c) In cases where compliance with such decision or action taken by the city would cause undue hardship, the board of commissioners may extend the time limit for implementation of such decision or action, or may grant exceptions to, or waive requirements of, or grant a variance from the specific provisions of this article. The board of commissioners shall give due consideration to the purposes of this article in preserving public safety and convenience, integrity of public infrastructure, and the operational safety and function of the right-of-way.
(d) Pending a decision of the board of commissioners, the order of the director of public works shall be stayed, unless the director of public works determines that such action will pose a threat to public safety or the integrity of the public infrastructure.
(e) If a ROW-user deems itself aggrieved after the appeal to the board of commissioners, such ROW-user shall have thirty (30) days after the effective date of the board of commissioners’ final decision to appeal such decision by filing an action in the district court.
Sec. 35-415. Indemnification.
(a) Each ROW-user shall indemnify and hold the city and its officers and employees harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees (including reasonable attorney fees and costs of defense), proceedings, actions, demands, causes of action, liability, and suits of any kind and nature, including personal or bodily injury (including death), property damage or other harm for which recovery of damages is sought, to the extent that it is found by a court of competent jurisdiction to be caused by the negligence of the ROW-user, any agent, officer, director, representative, employee, affiliate, or subcontractor of the ROW-user, or their respective officers, agents, employees, directors, or representatives, while installing, repairing, or maintaining facilities in a right-of-way. The indemnity provided by this subsection does not apply to any liability resulting from the negligence of the city, its officers, employees, contractors, or subcontractors. If a ROW-user and the city are found jointly liable by a court of competent jurisdiction, liability shall be apportioned comparatively in accordance with the laws of the State of Kansas without, however, waiving any governmental immunity available to the city under state law and without waiving any defenses of the parties under state or federal law. This subsection is solely for the benefit of the city and ROW-user and does not create or grant any rights, contractual or otherwise, to any other person or entity.
(b) A ROW-user or the city shall promptly advise the other in writing of any known claim or demand against the ROW-user or the city related to or arising out of the ROW-user’s activities in the right-of-way.
Sec. 35-416. Force majeure.
Each and every provision hereof shall be subject to acts of God, fires, strikes, riots, floods, war and other circumstances beyond the ROW-user’s or the city’s control.
Sec. 35-417. Federal, state and city jurisdiction.
This article shall be construed in a manner consistent with all applicable federal, state, and local laws. Notwithstanding any other provisions of this article to the contrary, the construction, operation and maintenance of the ROW-user’s facilities shall be in accordance with all laws and regulations of the United States, the state and any political subdivision thereof, or any administrative agency thereof, having jurisdiction. In addition, the ROW-user shall meet or exceed the most stringent technical standards set by regulatory bodies, including the city, now or hereafter having jurisdiction. The ROW-user’s rights are subject to the police powers of the city to adopt and enforce ordinances necessary to the health, safety, and welfare of the public. The ROW-user shall comply with all applicable laws and ordinances enacted pursuant to that power. Finally, failure of the ROW-user to comply with any applicable law or regulation may result in a forfeiture of any permit, registration or authorization granted in accordance with this article.
Sec. 35-418. City's failure to enforce.
The city’s failure to enforce or remedy any noncompliance with the terms and conditions of this article or any permit granted hereunder shall not constitute a waiver of the city’s rights nor a waiver of any person’s obligations as herein provided.
Sec. 35-419. Penalties.
(a) It shall be unlawful for any person to make or attempt to make any excavation within the right-of-way, or to conduct or attempt to conduct any repair, construction, or reconstruction of facilities located within the right-of-way, or to do or attempt to do any other act in violation of the provisions of this article.
(b) Every day that a violation continues shall constitute a separate offense.
(c) The violation of any provision of this article is hereby deemed to be grounds for revocation of any permit, registration or authorization granted in accordance with this article.
(d) The city shall have the authority to maintain civil suits or actions in any court of competent jurisdiction for the purpose of enforcing the provisions of this article.
Sec. 35-420 Exceptions.
Notwithstanding any other provision of this article, nothing contained herein shall relieve the city or a ROW-user from their respective obligations and rights under a valid franchise, license agreement, or other permit in effect upon the adoption of this ordinance.
Sec. 35-421. Reservation of rights.
(a) 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 registration, permit or other authorization granted under this article. The city shall have the right to waive any provision of this article or any registration, permit or other authorization granted thereunder, except those required by federal or state law, if the city determines as follows: (1) that it is in the public interest to do so; and (2) that the enforcement of such provision will impose an undue hardship on the person. To be effective, such waiver shall be evidenced by a statement in writing signed by a duly authorized representative of the city. Further, the city hereby reserves unto itself the right to intervene in any suit, action or proceeding involving the provisions herein.
(b) Notwithstanding anything to the contrary set forth herein, the provisions of this article shall not infringe upon the rights of any person pursuant to any applicable state or federal statutes, including, but not limited to the right to occupy the right-of-way.
Secs. 35-422--35-440. Reserved.
Section 2. Summary of ordinance for publication. This ordinance shall be published by the following summary:
Ordinance No. 14-10740 Summary
On July 28, 2014, the City of Salina, Kansas, passed Ordinance No. 14-10740. The ordinance establishes Chapter 35, Article XIII of the Salina Code to regulate the excavation, use and occupancy of the public right-of-way by utility service providers in the City of Salina, Kansas. A complete copy of the ordinance is available at www.salina-ks.gov or in the office of the city clerk, 300 W. Ash Street, free of charge. This summary is certified by the city attorney.
Section 3. Effective date. This ordinance shall be in full force and effect from and after its adoption and publication by summary once in the official city newspaper.
Introduced: July 21, 2014
Adopted: July 28, 2014
Aaron K. Householter, Mayor
Shandi Wicks, CMC, City Clerk
Certification of Publication Summary:
Greg A. Bengtson, City Attorney