SECTION 3 . - Use of Public Rights of Way.  


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  • In using Public Rights of Way under this Franchise Agreement, Level 3 shall be subject to all applicable ordinances, resolutions, rules, regulations, and policies now or hereafter adopted or promulgated by the City in the reasonable exercise of its police powers and shall be subject to all applicable laws, statutes, ordinances, regulations, orders, and rules adopted or promulgated by any governing body now or hereafter having appropriate jurisdiction. As a condition of this Franchise Agreement, Level 3 shall obtain and shall be responsible for obtaining and maintaining any necessary permits, licenses, certifications, grants, registrations, or other authorizations required by any appropriate governmental entity, including but not limited to the FCC, the KCC, or the City, subject to Level 3's right to challenge in good faith such requirement. In addition, Level 3 shall be subject to all applicable ordinances, resolutions, rules, regulations, and policies now or hereafter adopted or promulgated by the City relating to the use of Public Rights of Way, including but not limited to permits, sidewalk and pavement cuts, utility location, construction coordination, "Complete Streets" policies, beautification, tree care, and other requirements affecting the use of Public Rights of Way. Level 3 shall also comply with the following:

    (a)

    Level 3's use of the Public Rights of Way shall in all matters be subject and subordinate to the City's use of the Public Rights of Way for any public purpose or for any purpose relating to the health, safety, and welfare of the City. Level 3 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 Improvements.

    (b)

    All earth, materials, sidewalks, paving, crossings, utilities, Public Improvements, or improvements of any kind that are injured, damaged, or removed by Level 3, while engaging in any activity under this Franchise Agreement, shall be fully repaired or replaced within a reasonable time by Level 3 at its sole cost and expense and to the reasonable satisfaction of the City.

    (c)

    Level 3 shall keep and maintain accurate records and as-built drawings depicting the accurate location of all Facilities constructed, reconstructed, located, or relocated in the Public Rights of Way of the City after the date hereof and shall provide that information to the City upon its request. Such location and identification shall be at the sole cost and expense of Level 3, without any such cost or expense to the City or its authorized agents and contractors.

    The City agrees to use any information obtained under this subsection only to locate utility facilities in connection with Public 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 Public Projects, except as may otherwise be required by law. The City and Level 3 agree that such information is confidential and proprietary. The City and Level 3 also agree that such information shall remain the sole property of Level 3. The City and Level 3 further agree that such information shall not constitute an open public record as that term is defined by the Kansas Open Records Act, codified as amended at K.S.A. 45-215 et seq. In the event that the City shall be required to disclose such information, the City shall provide Level 3 advance written notice of its intended disclosure of such information and shall take such action as may be reasonably required to cooperate with Level 3 in safeguarding such information.

    Level 3 agrees to indemnify and to hold the City harmless from any and all penalties or costs, including reasonable attorneys' fees, incurred by the City, at the written request of Level 3, in seeking to safeguard the confidentiality of information provided to the City by Level 3 under this section.

    In the event that such information is required by law to be publicly disclosed, then Level 3 shall have no further obligation under this section to provide the City with such information.

    (d)

    Except in cases of emergency, a minimum of fourteen (14) days prior to construction, reconstruction, location, or relocation of any Facilities in a Public Right of Way, Level 3 shall submit to the City Engineer, or his or her designee, for approval, plans and specifications related to the proposed construction, reconstruction, location, or relocation. The City shall not unreasonably withhold, delay, or condition approval of said plans and specification. The City's review of the plans and specifications shall be confined to matters impacting the interests of the City in managing the Public Rights of Way of the City.

    (e)

    As reasonably necessary to accommodate City projects (not to include private parties), Level 3 shall relocate or adjust any of its Facilities located in a Public Right of Way for a Public Project upon forty-five (45) days written notice from the City. Such relocation or adjustment shall be performed by Level 3 at its sole cost and expense, without any cost or expense to the City or its authorized agents and Contractors and shall be subject specifically to the rules and regulations of the City.

    Notwithstanding Section 3(e), Level 3 shall not be responsible for the expenses of relocation to accommodate any private party installation initiated installation of its Facilities. The expenses attributable to such a project shall be the responsibility of the private party upon the request and appropriate documentation of Level 3. Before such expenses may be billed to the private party, Level 3 shall coordinate with the private party and the City on the design and construction to ensure that the work required is necessary and done in a cost effective manner. Level 3 may require payment in advance of estimated costs or relocation prior to undertaking any work required to accommodate any installation initiated after the effective date of this Agreement.

    (f)

    It shall be the sole responsibility of Level 3 to take adequate measures to protect and defend its Facilities in the Public Rights of Way from harm and damage. If Level 3 fails to accurately or timely locate its Facilities when requested, then Level 3 has no claim for costs or damages against the City or its authorized agents and Contractors or any other party authorized to be in the Public Rights of Way, except to the extent that such harm or damage is caused by such party's negligent or intentional conduct. The City and its authorized agents and Contractors agree to take reasonable precautionary measures, including but not limited to calling for utility locations and observing marker posts, when working near Level 3's Facilities.

    (g)

    Except in cases of emergency, Level 3 shall notify the City not less than ten (10) days in advance of any construction, reconstruction, repair, location, or relocation of Facilities that would require any street closure or that would reduce the traffic flow to less than two lanes of moving traffic. The City shall follow its policies in the approval or denial of such authority, neither of which shall be unreasonably denied nor delayed. Except in cases of emergency, no such closure shall take place without the prior authorization of the City.

    In addition, all work performed in the traveled Public Rights of Way that, in any way, impacts vehicular or pedestrian traffic shall be properly signed, barricaded, and otherwise protected. For all work performed within the Public Rights of Way, Level 3 shall comply with the City's regulations, rules, and orders regarding the placement of signs, barricades, and other safeguards.

    (h)

    All technical standards governing construction, reconstruction, installation, operation, testing, use, maintenance, and dismantling of the facilities in the Public Rights of Way shall be in accordance with applicable present and future federal, state, and local laws and regulations.

    (i)

    The City shall have the authority to prohibit Level 3's use or occupation of a specific portion of any Public Right of Way that is environmentally sensitive, as defined by federal, state, or local law or regulation, or that lies within a previously designated historic district as defined by federal, state, or local law, provided such prohibition in applied in a competitively neutral, non-discriminatory manner.