§ 5. Use Of Right-Of-Way  


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  • (a) Rules and Regulations. In its use of Right-of-Way under this franchise, the 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 Company shall be subject to all rules, regulations, policies, resolutions, and ordinances now or hereafter adopted or promulgated by the City relating to permits, fees, sidewalk and pavement cuts, utility location, construction coordination, screening, and other requirements on the use of the Right-of-Way in the reasonable exercise of its police power.

    (b) Subordinate to City Use. The 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 Company shall coordinate the installation of its Facilities in the Right-of-Way in a manner that minimizes adverse impact on Public Projects, as reasonably determined by the City. Where installation is not otherwise regulated, the Facilities shall be placed with adequate clearance from such Public Projects so as not to conflict with such Public Projects.

    (c) Restoration. All earth, materials, sidewalks, paving, crossings, utilities, Public Projects, or improvements of any kind located within the Right-of-Way that are damaged or removed by the Company in its activities under this franchise shall be fully repaired or replaced promptly by the Company at its sole expense and to the reasonable satisfaction of the City in accordance with the ordinances and regulations of the City pertaining thereto.

    (d) Public Project for Private Development. The Company shall not be responsible for the expenses of relocation to accommodate any new Public Project for Private Development initiated after the effective date of this ordinance. The expenses attributable to such a project shall be the responsibility of the third party upon the request and appropriate documentation of the Company. Before such expenses may be billed to the third party, the Company shall be required to coordinate with the third party and the City on the design and construction to ensure that the work required is necessary and done in a cost effective manner. Upon the request of the Company or the third party, the allocation of expenses attributable to the project shall be made in the reasonable determination of the City. Eligible third parties may request to have the City specially assess those expenses billed by the Company under this section.

    (e) Exclusion of Certain Locations/Facilities. Prior to the Company's installation of any Facilities in the Right-of-Way and after it provides the City with its proposed plans for the Facilities, the City may in its reasonable discretion designate certain locations or Facilities in the Right-of-Way to be excluded from use by Company for its Facilities, including but not limited to any Facility or location that in the reasonable judgment of the City Engineer is incompatible with the proposed Facilities or would be rendered unsafe or unstable by the installation. The City Engineer may further exclude certain other Facilities that have been designated or planned for other use or are not otherwise available for use by the Company due to engineering, technological, proprietary, or legal limitations or restrictions as may be reasonably determined by the City. The City shall provide a written explanation for any denial for a particular location and shall work with the Company to identify other suitable routes.

    (f) Location, Type and Design of Facilities Subject to Approval.

    (i) The design, location, and nature of all Facilities to be placed in the Right-of-Way shall be subject to the reasonable review and approval of the City Engineer. This is a means to properly manage and control all Right-of-Way usage in the City, and to protect the public health, safety, and welfare. The review and approval is to ensure efficient coordination relating to Right-of-Way use relating to public and private utilities and to evaluate the configuration and size of Facilities that may be located in the Right-of-Way.

    (ii) When the Company is allowed to place Facilities above ground in accordance with Section 7, the Company may attach its Facilities to an existing utility pole pursuant to a properly executed agreement with the pole owner, provided, however, that any necessary replacement of the pole in order to accommodate the attachment shall be subject to the proper exercise of the City's police powers, and in no instance shall the Company erect an additional pole within an existing aerial pole line absent the City's prior authorization.

    (iii) Above-ground pedestals, above-ground vaults, or other similar above-ground Facilities, may be installed only if approved by the City where alternative underground Facilities are not feasible or where underground requirements are otherwise waived pursuant to Section 7. Such above-ground Facilities shall generally be located behind the sidewalk where feasible and when placed along arterial streets shall be screened from public view by ornamental grasses or the equivalent when requested by the City. The Company shall be responsible for the installation or restoration of such screening; the City shall be responsible for routine maintenance.

    (g) Right-of-Way Management Code. The City reserves its rights to adopt a right-of-way management and construction standards ordinance of general applicability pursuant to its public health, safety and welfare authority which shall apply to this franchise except where inconsistent with a material term of this franchise and the Company reserves its rights to recover such costs to the extent provided by applicable law.

    (h) Permit Requirements.

    (i) This franchise establishes the general rules and scope of authority for the Company to construct and maintain its Electric Utility System within the Right-of-Way. The Company is still required to obtain individual permitting approval from the City Engineer prior to engaging in actual construction of its specific Facilities within the Right-of-Way.

    (ii) Except in the case of an emergency situation, prior to any excavation within the Right-of-Way, the Company shall obtain a permit, pay all applicable fees, and perform such work in accordance with applicable provisions of the City Right-of-Way Management Code, and any ordinances or regulations that may be adopted by the City regarding excavation work

    (i) Construction Plans. At least ten (10) business days before the beginning of any installation, removal or relocation of its Facilities greater in length than 660 feet the Company shall submit detailed plans of the proposed action to the City Engineer. The City Engineer shall, within ten (10) business days of receipt of such plans, either approve the plans or inform the Company of the reasons for disapproval. The Company shall designate a responsible contact person with whom representatives of the City Engineer can communicate on all matters relating to Facilities installation and maintenance.

    (j) As-Built Drawings. The Company shall keep and maintain accurate records and as-built drawings, in electronic format, of all underground Facilities (except customer service lines) constructed, reconstructed, or relocated in the Right-of-Way of arterial streets commencing six (6) months after the effective date hereof. Such Facilities shall be horizontally and vertically located at least every 100 feet and at any alignment change. All points of Facilities shall be horizontally located from street centerline, or section or quarter section lines or corners. Vertical locations on all points of Facilities shall consist of elevations in either City datum or United States Geological Survey datum. The 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 existing 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 Company without expense to the City, its employees, agents, or authorized contractors.

    (k) Wires. Where practicable, wires shall be placed nineteen (19) feet or more above the level of the street, except new wires shall be placed up to twenty-two (22) feet above the level of the street where reasonably requested by the City. Where practicable, any poles placed in the street Right-of-Way shall be located on the lot line and six (6) feet inside the curb line.

    (l) Street Closure. Except in the case of an emergency situation, the Company shall notify the City not less than twenty (20) 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 that would require any street closure that reduces traffic flow to less than two lanes of moving traffic. Except in the event of an Emergency, 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 in conformance with the latest edition of the Manual of Uniform Traffic Control Devices unless otherwise agreed to by the City.

    (m) Relocation for Public Projects. The Company shall coordinate with the City on the design and placement of Facilities in the Right-of-Way during and for the design of Public Projects. At the request and sole expense of the Company, the City may include design for Facilities in the design of Public Projects. Upon request by the City and within the time period specified in the City's request, the Company shall locate, remove, relocate, or adjust any Facilities located in Right-of-Way if reasonably necessary for a Public Project. Such location, removal, relocation, or adjustment for a particular Public Project shall be performed by the Company once 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. Such relocation or adjustment shall be completed as soon as possible within the time set forth in any request by the City for such relocation or adjustment. If additional location, removal, relocation, or adjustment becomes necessary as a result of inaccurate or mistaken information provided by the Company or City, the party which provided such inaccurate or mistaken information shall be responsible for costs associated with such additional location, removal, relocation, or adjustment without expense to the other party. The City will use its best efforts, but is not required, to continue to provide a location in the Right-of-Way for the Company's Facilities as part of a Public Project, provided that the Company has cooperated promptly and fully with the City in the design of its Facilities as part of the Public Project.

    (n) Protect Facilities. It shall be the responsibility of the Company to take adequate measures to protect and defend its Facilities in the Right-of-Way from harm or damage. If the Company fails to accurately locate Facilities when requested, it shall have no claim for costs or damages against the City or its authorized contractors except to the extent the City or its authorized contractors are responsible for the harm or damage by their negligence or intentional conduct. The 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 Company to perform any of its obligations under this franchise except to the extent another party is responsible for the harm or damage by its negligence or intentionally caused harm. The above general provisions notwithstanding, the City and its authorized contractors shall take reasonable precautionary measures including calling for utility locations through Kansas One Call and exercising due caution when working near Company Facilities.

    (o) ULCC. The Company shall become and remain a member of and participate in the Utility Location and Coordination Council established by ordinance of the City.

    (p) Technical Standards. 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 standards of the Kansas Corporation Commission and the Kansas Department of Transportation, or such substantive equivalents as may hereafter be adopted or promulgated. The standards established in this paragraph are minimum standards and the requirements established or referenced in this franchise may be in addition to or stricter than such minimum standards.

    (q) Conservation of Right-of-Way. The City encourages the conservation of Right-of-Way by the sharing of space by all utilities. Notwithstanding any provision of this franchise prohibiting third party use, to the extent required by federal or state law, the Company will 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 Company.

    (r) Structure Moving. On the request of any applicant, the Company 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 applicant, and the Company may require such payment in advance. The Company shall be given not less than fifteen (15) calendar 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. However, the City shall not be liable for any such expense for the moving of houses or structures by the City or its contractors.

    (s) Conduit. If the Company, in its sole discretion, determines that it has spare ducts in its underground conduits, or spare pins, crossarms, or space on any of its poles not then necessary for the provision of Electric Utility Service, and not needed for future anticipated load growth or Emergencies, the Company may permit the City to use one such duct in each conduit, or reasonable spaces on poles, or both, for the City's police and fire alarm wires, traffic control wires or cable, fiber-optic lines connecting City facilities, or other similar, appropriate non-commercial uses, provided that such use by the City is in compliance with the National Electric Safety Code and at the expense of the City. If the Company constructs or extends additional conduits or erects additional poles, the City, at the City's sole expense, may require the Company to provide one such duct in each conduit, or reasonable space on poles, or both, for the City's own use as aforesaid.

    (t) Commercial Purposes. City shall not sell, lease or otherwise make available its rights to use the Company's Facilities as set forth herein to any third party for commercial purposes. Such rights are provided solely for the non-commercial use of the City or other governmental entity. However, this restriction shall not prevent the City from using the services of a third party commercial entity to manage or operate the City's facilities on behalf of the City, so long as no resale or other commercial use of such facilities shall occur.