For the purpose of this article, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

(a)   Occupant. Any person, firm, corporation, association, utility or entity, which enters upon the right-of-way of the city, or in any manner establishes a physical presence on, upon, in or over the right-of-way of the city, for the purpose of installing, construction, maintaining or operating lines, conduits, wires, fiber optic wires, cables, pipes, pipelines, poles, towers, vaults or appliances or related facilities or appurtenances thereto.

(b)   Public Right-Of-Way. Only 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.

(Prior Code § 13-301; Ord. 868; Ord. 889)

(a)   No person, firm, corporation, association, utility or entity, shall enter upon the right-of-way of the city, or in any manner establish a physical presence on, upon, in or over the right-of-way of the city, for the purpose of installing, construction, maintaining or operating lines, conduits, wires, fiber optic wires, cables, pipes, pipelines, poles, towers, vaults or appliances, or related facilities or appurtenances thereto, without the express written permission of the city. The permission of the city may be granted by a franchise agreement pursuant to the provisions of K.S.A. 12-2001 et seq. or by such other agreement as the governing body determines best protects the public interest in the right-of-way.

(b)   Nothing in this article shall be interpreted as granting an occupant the authority to construct, maintain or operate any facility or related appurtenance on property owned by a city outside of the public right-of-way.

(c)   The city shall process each valid and administratively complete application for use of the right­ of-way within 30 days.

(Prior Code § 13-302; Ord. 889)

The authority of a provider to use and occupy the public right-of-way shall always be subject and subordinate to the reasonable public health, safety and welfare requirements and regulations of the city.

(Prior Code § 13-303; Ord. 889)

Any occupant of the public right-of-way shall comply with the provisions of Standards and Guides for Traffic Controls for Street and Highway Construction, Maintenance, Utility and Incident Management Operations, Part VI of the Manual of Uniform Traffic Control Devices (MUTCD), published by the U.S. Department of Transportation, Federal Highway Administration, 1988 Edition, Revision 3, dated 9-3-1993, which is incorporated herein by reference as if fully set forth herein.

(Prior Code § 13-304; Ord. 889)

If there is an emergency necessitating response work or repair, any person, firm, corporation, association, utility or entity which has been granted permission to occupy the public right-of-way may begin that repair or emergency response work or take any action required under the circumstances, provided that the person, firm, corporation, association, utility, or entity notifies the city promptly after beginning the work and timely thereafter meets any permit or other requirement had there not been such an emergency.

(Prior Code § 13-305; Ord. 889)

Any occupant of the public right-of-way is hereby required to repair all damage to a public right-of-way caused by the activities of that occupant, or of any agent affiliate, employee or subcontractor of that occupant, while occupying, installing, repairing or maintaining facilities in a public right-of-way and to return the right-of-way, to its functional equivalence before the damage pursuant to the reasonable requirements and specifications of the city. If the occupant fails to make the repairs required by the city, the city may effect those repairs and charge the occupant the cost of those repairs.

(Prior Code § 13-306; Ord. 889)

Whenever requested by the city, in order to accomplish construction and maintenance activities directly related to improvements for the health, safety and welfare of the public, an occupant promptly shall remove its facilities from the public right-of-way or shall relocate or adjust its facilities within the public right-of-way at no cost to the political subdivision. Such relocation or adjustment shall be completed as soon as reasonably possible within the ti.me set forth in any request by the city for such relocation or adjustment. Any damages suffered by the city or its contractors as a result of such occupant’s failure to timely relocate or adjust its facilities shall be borne by such occupant.

(Prior Code § 13-307; Ord. 889)

The following fees shall be assessed against occupants of the public right-of-way:

(a)   A permit and inspection fee of $0.50 per foot of right-of-way usage;

(b)   An excavation fee of $10 for each street or pavement cut;

(c)   Repair and restoration costs associated with repairing and restoring the public right-of-way because of damage caused by the provider, its assigns, contractors and/or subcontractors in the right-of-way; and

(d)   A performance bond, in a form acceptable to the city, from a surety licensed to conduct surety business in the state, insuring appropriate and timely performance in the construction and maintenance of facilities located in the public right-of-way.

(Prior Code § 13-308; Ord. 889)

(a)   Occupants 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 occupant, any agent, officer, director, representative, employee, affiliate or subcontractor of the provider, or their respective officers, agents, employees, directors or representatives, while installing, repairing or maintaining facilities in a public right-of-way.

(b)   The indemnity provided by this section does not apply to any liability resulting from the negligence of the city, its officers, employees, contractors or subcontractors. If an occupant 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 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.

(c)   This section is solely for the benefit of the city and occupant and does not create or grant any rights, contractual or otherwise, to any other person or entity.

(Prior Code § 13-309; Ord. 889)

An occupant shall promptly advise the other in writing of any known claim or demand against the provider or the city related to or arising out of the occupant’s activities in a public right-of-way.

(Prior Code § 13-310; Ord. 889)

Fees for persons and/or entities holding valid franchise agreements with the city shall have the fees herein waived; however, all other provisions shall still be applicable.

(Prior Code § 13-311; Ord. 889)

Any person, firm, corporation, association, utility or entity or agent, contractor or subcontractor thereof, violating any provision of this article, shall be guilty of a municipal offense and shall, upon conviction, be subject to a maximum fine of $500. Each day of violation shall constitute a separate and distinct offense.

(Prior Code § 13-312; Ord. 889)