Chapter 13 · Streets and Sidewalks

Article 4. Right-of-Way Maintenance

Sections 13-401 to 13-409 · 9 sections

13-401 Policy.

It is the policy of the City of Clearwater, in discharge of the duties as trustee of the public right-of-way and for the overall public health, safety and welfare of the city, to establish on a competitively neutral, nondiscriminatory basis, rules and regulations concerning management of the public right-of-way.

The authority of an occupant 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. Every occupant shall comply with all laws, rules, and regulations governing the use of public right-of-way.

Nothing in this article shall 1) prevent the city from requiring utility occupants to obtain contract franchise ordinances in accordance with the requirements of K.S.A. 17-1902 and all other applicable laws, rules and regulations; 2) require the city to permit any facility or non-facility within the public right-of-way; 3) create any additional rights or privileges to use the public right-of-way for constitutionally-protected speech and expressive activities; or 4) abridge any constitutionally-protected speech and expressive activities that have already been recognized by state and federal courts.

(Ord. 1039, § 1-1, 1-23-2018; Code 2018, 30-90)

13-402 Definitions.

Applicant: Any person or entity seeking a permit from the city to conduct, or in the case of an emergency recognize, work in the right-of-way. For purposes of this article, an applicant must be properly registered before submitting a permit application.

City: City of Clearwater.

Entity: A corporation, partnership, limited liability company, association, firm and any governmental agency, authority, board, agency or department.

Facilities: Including, but not limited to, any pipes, conduits, wires, cables, amplifiers, transformers, fiber optic lines, antennas, poles, ducts, conductors, lines, mains, vaults, appliances, attachments, equipment, structures, manholes, and other like equipment, fixtures and appurtenances used in connection with transmitting, supplying or furnishing utility services, cable television, communications, signaling, electricity, water, natural gas, steam or other services or similar functions, as well as other objects installed or proposed to be installed in the public right-of-way. Facilities shall not include landscaping, sidewalks, street signs, news-racks, planters, benches, trees, temporary signs, or public pay phones.

Liability insurance: An amount not less than the minimums as set by the city, to protect the city and in their capacity as such the governing body, officers, employees, and authorized agents thereof to the full extent indemnified hereunder from and against all claims by any person whatsoever for loss or damage from personal injury, death or property damage occasioned in any manner by the use of the right-of-way. This provision may be satisfied by supplying the city a letter of self-insurance and appropriate documentation verifying the applicant’s ability to provide no less than the minimum coverage required.

Non-facilities: Landscaping, sidewalks, street signs, news-racks, planters, benches, trees, and public pay phones installed or proposed to be installed in the public right-of-way.

Occupant: Any person or entity that occupies, uses, or seeks to occupy or use, the right-of-way through personal property consisting of facilities and/or non-facilities in the right-of-way. If the owner of any facilities leases, subleases, assigns or licenses the control or responsibility to any of those personal property and facilities to another person or entity, then the lessee, sublessee, assignee or licensee shall be deemed an occupant for that portion of such facilities.

Person: An individual or natural person.

Right-of-way/public right-of-way: Only the area of real property in which the city, county or the State of Kansas has a dedicated or acquired right-of-way interest in the real property. It shall include the area on, below, and above the present and future streets, alleys, avenues, roads, highways, parkways, boulevards, and sidewalks 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 nonwire telecommunications or broadcast service, easements obtained by non-city utilities or private easements in platted subdivisions or tracts.

Temporary sign: Any sign intended to be displayed for a limited period of time which is supported by any means other than by a person and is typically constructed from nondurable materials, including but not limited to paper, cardboard, cloth, plastic, wire frame or wallboard. Temporary signs shall be placed and secured to avoid damage to property and harm to persons and shall not be displayed for more than 48 hours without issuance of a permit by the city. Temporary signs shall not be larger than four square feet without issuance of a permit by the city. All temporary signs shall be removed from the public right-of-way adjacent to a property for not less than 30 days at the end of the 48 hour period or maximum display period provided by permit before another temporary sign can be located in said public right-of-way.

Utility service: The providing, transmitting, supplying or furnishing cable television, communications, signaling, electricity, water, natural gas, steam or other similar service.

(Ord. 1039, § 1-16, 1-23-2018; Code 2018, 30-105)

13-403 Construction standards.

(a)The construction, operation, maintenance, and repair of facilities and non-facilities in the right-of- way shall be in accordance with applicable health, safety and construction codes as well as those standards promulgated by the city administrator. As part of the permit application review and approval process, the city administrator may impose requirements on the design and construction of facilities and non-facilities installed in the right-of-way to ensure that facilities and non-facilities correspond to and complement the design and appearance of surrounding properties and are constructed using durable materials that aesthetically match nearby structures.

(b)All facilities and non-facilities shall be installed and located with due regard for minimizing interference with the rights and convenience of property owners, including the city.

(c)No applicant shall place facilities or non-facilities where they will damage or interfere with the use or operation of previously installed facilities and personal property or obstruct or hinder other utilities serving the residents and businesses in the city.

(d)If available, utility applicants shall make a good faith attempt to co-locate their facilities with as many other utilities as possible so as to maximize the efficient allocation of space in the right-of-way. In instances where the city has placed conduit or ducting in the right-of-way, utility applicants shall install their facilities within the city conduit or ducting system, unless such applicants can show a technological or other reasonable incompatibility preventing such placement.

(e)Any and all public right-of-way and government-owned or operated facilities and non-facilities that are damaged or disturbed during facilities work or non-facilities work shall be promptly repaired or replaced to their functional equivalence prior to being damaged or disturbed. The permit holder and any contractor, agent, affiliate, employee, or subcontractor used for facilities work or non-facilities work are jointly and severally liable for compliance with this requirement. Similarly, the permit holder and any contractor, agent, affiliate, employee, or subcontractor used for facilities work or non-facilities work are responsible for complying with the requirements of all laws, regulations and applicable franchise agreements concerning such work, including all obligations thereunder which may require the repair or replacement of any facilities or non-facilities which are damaged or disturbed by said parties.

(f)Any contractor, agent, affiliate, employee, or subcontractor used for facilities work or non-facilities work in the right-of-way must be properly licensed under the laws of the State of Kansas and all applicable local ordinances. Each contractor, agent, affiliate, employee, or subcontractor shall be accountable to the obligations herein to the same extent as the applicant. The applicant shall be ultimately responsible to ensure the contractor, agent, affiliate, employee, or subcontractor fully complies with this article and likewise shall be responsible for all acts or omissions of the contractor, agent, affiliate, employee, or subcontractor. Furthermore, upon written notice by the city, the applicant shall be responsible for promptly correcting acts or omissions by any contractor, agent, affiliate, employee, or subcontractor.

(g)Within 30 days of completion of any facilities work in the right-of-way, each utility applicant shall provide city with a complete set of “as-built” drawings. Preliminary plans shall satisfy this requirement so long as those preliminary plans accurately reflect the facilities work done.

(Ord. 1039, § 1-7, 1-23-2018; Code 2018, 30-96)

13-404 Fees.

Every applicant for facilities and non-facilities work in the right-of-way, at the time of filing of the permit application shall pay to the city all applicable permit fees, except that any state or local government, governmental agency, public library, public or private school, or water district organized under K.S.A. 19-3501 et seq., shall be exempt from such permit fees.

Likewise, such permit fees shall be waived for any facilities work in the right-of-way to extend utility service to a state, local or other governmental agency, public or private school facility. Permit fees shall be based upon the reasonable, actual, and verifiable costs of managing the right-of-way and shall be imposed in a nondiscriminatory and competitively neutral manner.

Fees for permits for facilities and permits for non-facilities shall be established by a resolution of the Governing Body of the City of Clearwater. In addition to these fees, a fee to offset the city’s cost incurred as a result of facilities work involving street cuts or street excavations shall be assessed upon issuance of a facilities permit and calculated as follows:

For facilities work involving street cuts or street excavations:

Cost per square yard for street overlays and sealcoats × depreciation rate × area of influence = street cut or excavation fee.

“Cost per square yard” shall be determined by the city administrator on an annual basis as of January 1, using average costs for materials required to overlay, sealcoat, or build a city street.

“Depreciation rates” shall be determined by the city administrator.

“Area of influence” shall be the area of the street cut plus three feet on each side of the cut.

Bonds: Every occupant performing facilities work in the right-of-way shall be required as a condition of their permit to post a performance bond, in a form acceptable to the city, from a surety licensed to conduct surety business in the State of Kansas, ensuring appropriate and timely performance in the construction and maintenance of personal property and facilities located in the right-of-way. The amount and term of the performance/maintenance bond shall be determined by the city administrator based upon the size and scope of the work sought to be performed under the permit.

(Ord. 1039, § 1-8, 1-23-2018; Code 2018, 30-97)

13-405 Failure to restore right-of-way.

If any facilities or non-facilities occupant fails to restore the right-of-way, including any object therein, in the manner and to the condition required by this article, or any applicable city ordinance, rule or regulation, or fails to satisfactorily and timely complete all restoration required by the city, the city may affect those repairs and charge the occupant the cost of those repairs. Similarly, if any facilities or non-facilities occupant fails to restore and/or maintain the right-of-way in the manner and to the condition required by this article, or any applicable city ordinance, rule or regulation, or fails to satisfactorily and timely complete all restoration and/or maintenance required by the city, the city may affect such restoration and/or maintenance and charge the occupant the cost thereof. If the city incurs damages as a result of a violation of this section, then the city shall have a cause of action against the occupant for violation of this section, and may recover its damages, including reasonable attorney fees, if the occupant is found liable by a court of competent jurisdiction.

(Ord. 1039, § 1-9, 1-23-2018; Code 2018, 30-98)

13-406 Removal and relocation of facilities and non-facilities.

(a)The city will attempt, in good faith, with as much notice as possible, prior to the need for the removal or relocation, provide affected occupants of publicly funded municipal projects requiring relocation of facilities in the right-of-way. In any event, upon issuance of written notice by the city, any occupant with facilities or non-facilities in the right-of-way shall, at its own expense, temporarily, or permanently remove or relocate, change or alter the position of any facilities or non-facilities within the right-of-way whenever the city has determined that such removal, relocation, change or alteration is reasonably necessary for:

(1)Construction, repair, maintenance or installation of any city or other publicly funded project or improvement in or upon the public ways;

(2)Construction, repair, maintenance or installation of any facilities or non-facilities by the city or any utility operating under a city or state franchise or state-issued video service authorization; and/or

(3)Current and/or future operations of the city in and upon the right-of-way.

(b)Whenever possible, the relocation, change or alteration of any utility facilities shall be underground unless waived by the city. The city may waive this underground requirement for technical reasons or if underground placement would cause severe economic hardship to the occupant.

(c)Relocation of facilities and non-facilities must be completed within the time period established in any written notice issued to the occupant by the City of Clearwater, Kansas. This time period may be extended by the city for good cause as demonstrated by the occupant.

(d)Any relocation of facilities and non-facilities at the city’s request must comply with all laws, regulations, city franchises and ordinances except that the occupant shall not be required to pay any permit fees.

(e)The city shall provide occupant written notice of the failure to properly remove or relocate facilities or non-facilities. In the event an occupant fails to remove, relocate or otherwise rearrange any facilities or non-facilities, the city may, at its option and in addition to the imposition of any penalties or any other remedies available, undertake or cause to be undertaken, such necessary removal or relocation. Any damages suffered by the city or its contractors as a result of such occupant’s failure to timely remove or relocate its facilities or non-facilities shall be reimbursed by the occupant. Future permit applications may not be granted to the same or related occupant until such time as any facilities or non-facilities required to be removed or relocated have been removed or relocated and any costs incurred by the city therefore paid by such occupant. The city shall have no liability for any damage caused by such removal or relocation and the occupant shall be liable to the city for all reasonable costs incurred by the city in such removal or relocation.

(Ord. 1039, § 1-10, 1-23-2018; Code 2018, 30-99)

13-407 Abandonment/removal of facilities.

(a)An occupant who has determined to discontinue its activities in the public right-of-way located within the city must either:

(1)Provide satisfactory information to the city that the occupant’s obligations for its personal property and facilities in the public right-of-way have been lawfully assumed by another occupant; or

(2)Submit to the city a proposal and instruments for dedication of its personal property and facilities to the city. If an occupant proceeds under this clause, the city may at its option;

(A)Accept the dedication for all or a portion of the personal property and facilities; or

(B)Require the occupant, at its own expense, to remove the personal property and facilities in the public right-of-way at ground or aboveground level; or

(C)Require the occupant to post a bond or provide payment sufficient to reimburse the city for reasonably anticipated costs to be incurred in removing the personal property and facilities; or

(D)Initiate statutory eminent domain proceedings.

(b)Any occupant who has abandoned facilities in any city right-of-way shall remove it immediately unless such removal would cause unnecessary disruption and destruction to existing personal property or facilities or the right-of-way. For purposes of this chapter, “abandoned facilities” shall mean any facilities that have not been used for the purpose for which they were constructed over a continuous period of twelve months. The city will notify occupants in writing of their intentions to proceed with this section. The occupant shall remove said personal property and facilities or otherwise remedy the situation to the satisfaction of the city. In addition to any other remedy available in law or equity, where facilities are abandoned, the city may either, take possession of the personal property and facilities, abate the personal property and facilities or require the occupant or the successor in interest to the occupant to remove the personal property and facilities at their expense.

(Ord. 1039, § 1-11, 1-23-2018; Code 2018, 30-100)

13-408 Liability.

Every occupant of public rights-of-way shall assume all liability for any work which it performs in the right-of-way.

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 occupant, or their respective officers, agents, employees, directors, or representatives, while installing, repairing, or maintaining personal property and facilities in the public right-of-way. The indemnity provided by this subsection 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 of Kansas 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. 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.

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

(Ord. 1039, § 1-14, 1-23-2018; Code 2018, 30-103)

13-409 Penalty.

Failure to comply with the provisions of this article by any person or entity shall be deemed a public offense, punishable by up to $500.00 per violation, per day. Each day a violation of this article occurs shall constitute a separate public offense. Any penalty imposed by this provision shall be in addition to any other remedy at law or equity available to the City, for any failure to comply with the provisions of this article.

(Ord. 1039, § 1-12, 1-23-2018; Code 2018, 30-104)