§ 3. Use of Right-of-Way.  

Latest version.
  • In the use of right-of-way under this franchise, the Telephone Company 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. In addition, the Telephone Company shall be subject to all rules, regulations, policies, resolutions, and ordinances now or hereafter adopted or promulgated by the City relating to pennits and fees, sidewalk and pavement cuts, utility location, construction coordination, beautification, and other requirements on the use of the right-of-way and shall comply with the following:


    The Telephone Company's use of right-of-way shall in all matters be subordinate to the City's use of the right-of-way for any public purpose. The Telephone Company shall coordinate the placement of its facilities in a manner that minimizes adverse impact on public improvements, as reasonably determined by the City. Where placement is not otherwise 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.


    All earth, materials, sidewalks, paving, crossings, utilities, public improvements, or improvements of any kind injured or removed by the Telephone Company in its activities under this franchise shall be fully repaired or replaced promptly by the Telephone Company at its sole expense and to the reasonable satisfaction of the City or owner thereof.


    All facilities constructed, replaced, or relocated in the right-of-way after the date hereof shall be placed underground unless otherwise agreed to by the City. Where there are obstructions in the right-of-way such as trees, shrubs, other utilities, commercial signs, man-made structures, or other like obstructions which make the cost of such underground burial unreasonable, the Telephone Company may request waiver of this requirement, in which event the City will not unreasonably withhold consent. Any vaults, boxes, pedestals, and similar facilities placed above ground in street right-of-way shall be located behind the sidewalk where feasible. Underground facilities shall be placed in appropriate size and type of rigid conduit under paving and under proposed paving as set forth in the Year 2000 Transportation Plan as on file with the Metropolitan Area Planning Commission except where otherwise agreed by the City and the Telephone Company. Where reasonable and appropriate and where adequate public right-of-way exists, the Telephone Company will place above-ground facilities underground in conjunction with City capital improvement projects and/or at specific locations requested by the City provided that such placement is practical, efficient, and economically feasible. By way of illustration and not limitation, Telephone Company may establish that such placement is not economically feasible by showing that the present value of the future maintenance savings of such placement does not exceed all of the costs associated with such placement.


    The Telephone Company shall keep and maintain accurate records and as-built drawings depicting accurate horizontal and vertical location of all facilities constructed, reconstructed, or relocated in the street right-of-way after the date hereof and provide location information regarding specific future project locations to the City upon request. Where such information is available electronically, upon request from the City, Telephone Company agrees to provide such information in an electronic format. (City agrees to use information only to locate utility facilities in connection with municipal projects and further agrees not to disclose such information to anyone other than City employees requiring such information to locate utility facilities in connection with municipal projects, except as required by law. Telephone Company and City agree that such information is confidential and proprietary and agree that such information shall remain the sole property of the Telephone Company and agree that pursuant to K.S.A. 45-221(12), (18), as amended, such information does not constitute public records subject to K.S.A. 45-218, as amended. In the event that City is required by law to disclose such information, City shall provide the Telephone Company seven (7) days advance notice of its intended disclosure of such information and shall take such action as may be reasonably required to cooperate with the Telephone Company to safeguard such information. The Telephone Company agrees to indemnify and hold the City harmless from any and all penalties or costs, including attorney's fees, arising from the actions of the Telephone Company, or of the City at the written request of the Telephone Company, in seeking to safeguard the confidentiality of information provided by Telephone Company to City under this section. In the event such information is required by force of law to be publicly disclosed, the Telephone Company shall have no further obligation under this section to provide the City with such information.) Such facilities shall be horizontally and vertically located at least every 100 feet and at any other alignment change. All points of facilities shall be horizontally located from street centerline, or section or quarter section lines or corners. Vertical locations or all points of facilities shall consist of elevations in either City datum or United States Geological Survey datum.


    The Telephone Company shall notify the City not less than three (3) working days in advance (such notice to be adequate for timely notice on the governing body agenda under City procedures) of any construction, reconstruction, repair, or relocation of facilities which would require any street closure which reduces traffic flow to less than two lanes of moving traffic. Except in the event of an emergency, as reasonably determined by the Telephone Company, no such closure shall take place without prior authorization from the City. In addition, all work performed in the traveled way or which in any way impacts vehicular or pedestrian traffic shall be properly signed, barricaded, and otherwise protected. Such signing shall be in conformance with the latest edition of the Federal Highway Administration's Standards and Guideline for Work Zone Traffic Control, unless otherwise agreed to by the City.


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


    The Telephone Company shall promptly remove, relocate, or adjust any facilities located in right-of-way if reasonably necessary and directed by the City for a public project. Such removal, relocation, or adjustment for a particular public project shall be performed by the Telephone Company once at its sole expense without expense to the City, its employees, agents, or authorized contractors and shall be specifically subject to rules and regulations of the City pertaining to such. If additional removal, relocation, or adjustment is the result of the inaccurate or mistaken information of the Telephone Company, the Telephone Company shall be responsible for such at its sole expense.


    It shall be the responsibility of the Telephone Company to take adequate measures to protect and defend its facilities in the right-of-way from harm or damage. If the Telephone Company fails to accurately or timely locate facilities when requested, it has no claim for costs or damages against the City and its authorized contractors unless such party is solely responsible for the harm or damage by its negligence or intentional conduct. Telephone Company shall be responsible to the City and its agents, representatives, and authorized contractors for all damages including, but not limited to, delay damages, repair costs, down time, construction delays, penalties or other expenses of any kind arising out of the failure of the Telephone Company to perform any of its obligations under this agreement unless the damage party is solely responsible for the harm or damage by its negligence or intentionally caused harm. However, the City and its authorized contractors shall be responsible to take reasonable precautionary measures including calling for utility locations and observing marker posts when working near Telephone Company facilities.


    The Telephone Company, on the request of any applicant, shall remove or raise or lower its wires temporarily to permit the moving of houses or other structures. The expense of such temporary removal, raising or lowering of wires shall be paid by the party or parties requesting the same, and the Telephone Company may require such payment in advance. The Telephone Company shall be given not less than fifteen (15) days' written notice from the applicant detailing the time and location of the moving operations, and not less than twenty-four (24) hours' advance notice from the applicant advising of the actual operation. The City shall not be liable for any such expense or notice requirement for the moving of houses or structures by the City or its contractors.


    Permission is hereby granted to the Telephone Company to trim trees upon and overhanging streets, alleys, sidewalks and public places of said City so as to prevent the branches of such trees from coming in contact with the wires and cables of the Telephone Company, all of said trimming to be done under the supervision and direction of any City officials to whom said duties have been or may be designated.


    All technical standards governing construction, reconstruction, installation, operation, testing, use, maintenance, and dismantling of the facilities in the right-of-way shall be in accordance with applicable present and future federal, state, and City law and regulation, including but not limited to the most recent editions of the National Electrical Code, the National Electrical Safety Code, and the Fiber Optic Cable Installation Standard of the Telecommunications Industry Committee, or such substantive equivalences as may hereafter be adopted or promulgated. It is understood that the standards established in this paragraph are minimum standards and the requirements established or referenced in this ordinance may be additional to or stricter than such minimum standards.


    The Telephone Company will not allow a subsidiary, affiliate, or a third party providing a wireless communications system to acquire rights to occupy the right-of-way under this Agreement. To the extent this provision is deemed inapplicable to third parties, it also shall be deemed inapplicable to subsidiaries and affiliates of Telephone Company. Nothing in this subsection shall prevent Telephone Company from providing Telecommunications Services to any third party, subsidiary or affiliate even though such services may involve the Telephone Company facilities in the right-of-way within the City limits.


    The City encourages the conservation of right-of-way by the sharing of space by all utilities. To the extent required by Federal or State law, the Telephone Company shall permit any other franchised entity by appropriate contract or agreement negotiated by the parties to use any and all facilities constructed or erected by the Telephone Company. All said agreements and installations shall be subject to all existing and future ordinances and regulations of the City.


    The provisions of this franchise shall be subject to any existing or future adopted right-of-way management and construction standards ordinance of general applicability pursuant to the public health, safety, and welfare authority of the City. Nothing in this subsection shall be deemed to preclude Telephone Company from objecting to the provisions of said ordinance or pursuing other rights and remedies that might exist by law.