Unless the context clearly indicates otherwise, the meanings of words and terms used in this article shall be as follows:
(a) City Superintendent means the City Superintendent(s) of the City of Wellsville, Kansas, or their designee.
(b) Emergency means a condition that poses a clear and immediate danger to life or health, or a significant loss of property.
(c) Occupant means any person occupying, using, or requesting permission to enter upon or use 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, repairing, construction, maintaining or operating lines, conduits, wires, fiber optic wires, cables, pipes, pipelines, poles, towers, vaults or appliances, or related facilities or appurtenances thereto.
(d) Person means any natural person, sole proprietorship, firm, partnership, association, company, corporation or other business organization of any kind.
(e) Public Project means any project planned or undertaken by the City or any other governmental entity for construction, reconstruction, maintenance, or repair of public facilities or improvements, including without limitation streets, curbs and gutters, traffic control devices, bridges, alleys, sidewalks, street lights, sewer system, water system, drainage system, Right-of-Way improvement, or any other purpose of a public nature.
(f) Public Project for Private Development means a Public Project, or that portion thereof, arising solely from a request of a third party primarily for the benefit and use of a third party.
(g) Public right-of-way or right-of-way means 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, bikeways, parkways or boulevards dedicated or acquired as right-of-way. The term does not include public parks or other public lands, or the airwaves above a right-of-way with regard to wireless telecommunications or other nonwire telecommunications or broadcast service, or easements obtained by utilities or private easements in platted subdivisions or tracts.
(h) Routine Maintenance means inspecting, monitoring, testing, cleaning, calibrating, pole replacement, part replacement, minor repairs or other work which does not require excavation, boring, drilling, plowing, pavement, or sidewalk removal, visual obstruction of streets, or street closure which reduces traffic flow to less than two (2) lanes for more than four (4) hours.
(i) Facility and facilities mean lines, conduits, wires, fiber optic wires, cables, pipes, pipelines, poles, towers, vaults or appliances, or related items or appurtenances.
(Ord. 770; Code 2016)
(a) Except for routine maintenance and emergency repairs, no person 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, repairing, or construction of lines, conduits, wires, fiber optic wires, cables, pipes, pipelines, poles, towers, vaults or appliances, or related facilities or appurtenances thereto, without at least three (3) working days’ notice in writing to the City.
(b) Nothing in this article shall be interpreted as granting a person authority to construct, maintain or operate any facility or related appurtenance on property owned by the City outside of the public right-of-way.
(c) Notice hereunder shall be given to the City Superintendent (with a copy to the City Clerk), Wellsville City Hall, 411 Main Street, PO Box 455, Wellsville, KS 66092.
(Ord. 770; Code 2016)
The authority of an occupant to use and occupy the public right-of-way shall always be subject and subordinate to the City’s use or occupation of the right-of-way, to the reasonable public health, safety and welfare requirements and regulations of the City, and to this right-of-way article as amended from time to time.
(Ord. 770; Code 2016)
Any occupant of the public right-of-way shall comply at all times with the latest edition of the Manual of Uniform Traffic Control Devices
(Ord. 770; Code 2016)
If there is an emergency necessitating response work or repair, an occupant may begin that repair or emergency response work or take any action required under the circumstances, provided that the person uses reasonable efforts to keep the City informed concerning the status of its repair operations.
(Ord. 770; Code 2016)
Any occupant of the public right-of-way is hereby required to repair all damage to a public right-of-way, public improvements or improvements of any other kind damaged, or 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 and in conformance with City requirements promulgated and determined by the City Superintendent, and federal and state law. The City Superintendent has the authority to inspect the repair or replacement of the damage, and if necessary, to require occupant to do additional work necessary to comply with this section. At the time of any inspection, the City Superintendent may order the immediate cessation of any work, which poses a serious threat to the life, health, safety, or well-being of the public. Notice of the unsatisfactory restoration and the deficiencies found will be provided to occupant and a reasonable time not to exceed fifteen (15) days will be provided to allow for the deficiencies to be corrected. If the occupant fails to make the repairs required by the City, the City may perform those repairs and charge the occupant the cost of those repairs.
All earth, materials, sidewalks, paving, crossing, utilities, public improvement or improvements of any kind damaged or removed by the occupant, or any agent, affiliate, employee, or subcontractor of the occupant, shall be fully repaired or replaced promptly by the occupant at its sole expense and the reasonable satisfaction of the City. Notice of the unsatisfactory restoration and the deficiencies found will be provided to the occupant and a reasonable time not to exceed fifteen days will be provided to allow for the deficiencies to be corrected. In addition to repairing its own street cuts, the occupant must restore any area within five (5) feet of the new street cut that has previously been excavated, including the paving and its aggregate foundations. If the permittee fails to restore the right-of-way in the manner and to the condition required by the City Superintendent, or fails to satisfactorily and timely complete all restoration, the City may, at its option, take over the work and prosecute same to completion, by contract or otherwise at the expense of the occupant, and the occupant shall be liable to the City for any and all excess cost assumed by the City by reason of such prosecution and completion. In restoring the right-of-way, the occupant guarantees its work and shall maintain it for twenty-four (24) months following its completion. During the twenty-four (24) months, the occupant shall, upon notification from the City Superintendent, correct all restoration work to the extent necessary, using any method as required by the City Superintendent. Said work shall be completed within a reasonable time, not to exceed thirty (30) calendar days, of the receipt of notice from the City Superintendent (not including days during which work cannot be done because of circumstances constituting force majeure or days when work is prohibited as unseasonable or unreasonable). In the event the occupant is required to perform new restoration pursuant to the foregoing guarantee, the City Superintendent shall have the authority to extend the guarantee period for such new restoration for up to an additional twenty-four (24) month’s from the date of the new restoration. The twenty-four (24) month guarantee period shall be applicable to failure of the pavement surface as well as failure below the pavement surface.
(Ord. 770; Code 2016)
Whenever required by the City, and within the time period specified in the City’s request, the occupant shall locate, move, remove, relocate, or adjust any Facilities located in Right-of-Way if reasonably necessary for a Public Project. Such location, move, removal, relocation, or adjustment for a particular Public Project shall be performed by the occupant 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 location, move, removal, relocation or adjustment shall be completed as soon as possible within the time set forth in any request by the City of 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.
(Ord. 770; Code 2016)
The occupant shall not be responsible for the expenses of relocation to accommodate any new Public Project for Private Development. Street widening, additional turn lanes and other similar public improvements undertaken to improve traffic safety and traffic flow in connection with a new private development shall not be considered a Public Project for Private Development. Expenses solely attributable to a Public Project for Private Development shall be the responsibility of the third party requesting the relocation. The occupant shall be required to coordinate the design and construction with the City and the third party to ensure that the work required is necessary and performed in a cost-effective manner. Upon request of the occupant or the third party, the allocation of expenses solely attributable to the Public Project for Private Development shall be made by the City Superintendent.
(Ord. 770; Code 2016)
Occupants shall coordinate the placement of facilities in a manner which minimizes adverse impact on any public improvement, as reasonably determined by the City. Where placement is not 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 as determined by the City Superintendent. Occupant shall construct and maintain its facilities so as not to interfere with other users of the rights-of-way, execute a resident-notification plan to notify residents affected by the proposed work. All construction and maintenance by occupants shall be performed in accordance with industry standards.
(Ord. 770; Code 2016)
Should an occupant make or cause to be made any excavation in, upon, under, through or adjoining any right-of-way, and leave any part or portion thereof open, or leave any part or portion thereof disrupted with rubbish, building or other material during construction and/or the night time, occupant shall cause the same to be enclosed with good substantial and sufficient barricades or drums equipped with the appropriate type warning lights and orange safety fencing material which is properly secured around the excavation or the disruption. Whenever an occupant shall excavate the full width of any street, sidewalk, alley, driveway approach or other right-of-way, it shall be its duty to maintain an adequate passage for vehicles and pedestrians across or around the excavation until it is refilled as specified. Any excavation left open overnight or any thoroughfare or collector type street shall be securely covered. Occupant assumes the sole responsibility for maintaining proper barricades, plates, safety fencing and/or lights as required from the time of opening of the excavation until the excavation is surfaced and the street is opened for travel.
(Ord. 770; Code 2016)
Occupant 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 (2) lanes of moving traffic for more than four (4) hours. Except in the event of an emergency, no such closure shall take place without notice and prior authorization from the City. 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 occupant’s expense. Such signage shall be in conformance with the latest edition of the Manual of Uniform Traffic Control Devices.
(Ord. 770; Code 2016)
Whenever there is an excavation by an occupant that requires detouring, occupant shall be responsible for providing adequate detour traffic control to the surrounding area as determined by the City Superintendent. Occupant 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.
(Ord. 770; Code 2016)
Occupant shall be liable for any damages to underground facilities owned by others due to excavation work performed by or on behalf of occupant prior to obtaining location of such facilities, or for any damage to underground facilities owned by others that have been properly identified prior to excavation by or on behalf of occupant. Occupant shall not make or attempt to make repairs, relocation or replacement of damaged or disturbed underground facilities owned by others without the approval of the owner of the facilities which have been damaged or disturbed.
(Ord. 770; Code 2016)
Occupant shall, upon fifteen (15) days advance written notice from any person holding an appropriate permit issued by the City, or upon fifteen (15) days written notice from the City, temporarily raise or lower its lines to permit the moving of any building or structure. The actual expense of such temporary removal shall be paid by the person requesting the same and occupant shall have the right to require payment in advance for such temporary removal. At the City’s request, occupant shall raise or lower its lines upon not less than twenty-four (24) hours’ notice, and, in the event of an emergency, the response shall be immediate.
(Ord. 770; Code 2016)
Occupant shall not refuse to hire or employ, nor bar or discharge from employment, nor unlawfully discriminate against any person in terms, conditions or privileges of employment because of age, race, creed, color, national origin or sex.
(Ord. 770; Code 2016)
Occupants shall file maps with the City every one hundred eighty (180) days showing location of existing facilities which are located in the City rights- of-way. Occupant shall have the right to exclude infrastructure and other information that is sensitive to security from maps provided to the City. If available, occupant shall also provide the City with such information in an electronic format compatible with the City’s Geographical Information System (GIS).
(Ord. 770; Code 2016)
Occupant shall participate in “Kansas One Call” to ensure that damage and/or interference with other underground facilities is minimized. In addition, the City shall have the right to disclose the location of occupant’s facilities on plans prepared for planning, bidding, or construction in the public right-of-way. Notwithstanding the foregoing, the City shall only disclose the location of occupant’s facilities and shall not disclose any information relating to the technical specifications of said facilities or specific information about any equipment attached thereto.
(Ord. 770; Code 2016)
Occupants shall defend, indemnify and hold the City and its officers, employees, agents and authorized contractors, harmless from and 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 caused by the negligence of the occupant, any agent, officer, director, representative, employee, affiliate or subcontractor of the occupant, or their respective officers, agents, employees, directors or representatives, while installing, constructing, using, repairing or maintaining facilities in a public right-of-way.
(Ord. 770; Code 2016)
Any person, or such person’s agent, affiliate, employee, or subcontractor, 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.
(Ord. 770; Code 2016)