ORDINANCE NO

ORDINANCE NO. 8073

AN ORDINANCE OF THE CITY OF LAWRENCE, KANSAS CONCERNING THE USE OF CITY RIGHTS-OF-WAY BY FRANCHISEES OF THE CITY OF LAWRENCE, KANSAS, ENACTING ARTICLE 9A OF CHAPTER 16 OF THE CODE OF THE CITY OF LAWRENCE, KANSAS 2006 EDITION.

WHEREAS, the governing body of the City of Lawrence has statutory authority to permit certain activities specified in K.S.A. 12-2001 et seq. and may grant or give a non-exclusive franchise, right, or privilege or may extend, renew or amend any existing grant, right, privilege or franchise to engage in such activity by ordinance; and

WHEREAS, the City of Lawrence, Kansas has in some of its franchise ordinances with franchised utilities operating in the City, certain provisions regulating the use of the City’s rights-of-way, which include among other provisions, compliance with the City’s street tree ordinance, and compliance with the City’s underground utilities provisions found in Chapter 5, Article 4A “Underground Wiring Districts” of the Code of the City of Lawrence, Kansas; and

WHEREAS, the City code provisions adopted by this ordinance shall apply to and be enforced with respect to such franchisees whose franchise ordinances (1) contain no right-of-way use regulations or (2) contain right-of-way use regulations less stringent than those contained in this ordinance; and

NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF LAWRENCE, KANSAS:

Section 1. Chapter 16, Article 9A of the Code of the City of Lawrence, Kansas, 2006 Edition, is hereby enacted to read as follows:

ARTICLE 9A. USE OF RIGHT-OF-WAY BY FRANCHISEES OF THE CITY OF LAWRENCE, KANSAS

16-9A01 APPLICABILITY.

This article shall apply to those franchisees of the City of Lawrence, Kansas that have no right-of-way use provisions in their franchise ordinances with the City of Lawrence or have right-of-way use provisions in their franchise ordinances that are less stringent than those contained in this article.

16-9A02 USE OF RIGHT-OF-WAY.

In the use of the right-of-way under this Ordinance, the franchisee 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 and is subject to all applicable laws, orders, rules and regulations adopted by the governmental bodies now or hereafter having jurisdiction. In addition, the franchisee shall be subject to all rules, regulations, policies, resolutions and ordinances now or hereafter adopted or promulgated by the City relating to permits, sidewalk and pavement cuts, utility location, construction coordination, beautification, tree care, and other requirements on the use of the right-of-way and shall comply with the following:

(A) The franchisee’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 purposes. The franchisee shall coordinate the placement of its facilities in a manner which 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 improvement.

(B) All earth, materials, sidewalks, paving, crossings, utilities, public improvements or improvements of any kind injured, damaged or removed by the franchisee in its activities under this Ordinance and its Franchise Ordinance shall be fully repaired or replaced within a reasonable time by the franchisee at its sole expense and to the reasonable satisfaction of the City and the franchisee.

(C) The franchisee shall keep and maintain accurate records and as-built drawings depicting the accurate location of all facilities constructed, reconstructed, or relocated in the right-of-way after the date hereof and provide the above information to the City upon request. Where such information is available electronically, upon request from the City, franchisee agrees to provide such information in an electronic format. City agrees to use information obtained pursuant to this subsection only to locate utility facilities in connection with municipal 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 municipal projects, except as required by law. Franchisee and the City agree that such information is confidential and proprietary and agree that such information shall remain the sole property of the Investor owned utility and agree that pursuant to the Kansas Open Records Act, K.S.A. 45-215 et seq., as amended, such information does not constitute public records subject to K.S.A. 45-218, as amended. In the event that the City is required by law to disclose such information, the City shall provide the franchisee advance notice of its intended disclosure of such information and shall take such action as may be reasonably required to cooperate with the franchisee to safeguard such information.

The franchisee agrees to indemnify and hold the City harmless from any and all penalties or costs, including attorney’s fees, arising from the actions of the franchisee, or of the City at the written request of the franchisee, in seeking to safeguard the confidentiality of information provided by the franchisee to the City under this section.

In the event such information is required by force of law to be publicly disclosed, the franchisee shall have no further obligation under this section to provide the City with such information. Such facilities shall be horizontally and vertically located at least every 100 feet and at any other alignment change.

All points of facilities shall be horizontally located from street centerline or section or quarter section lines or corners. Vertical locations or all points of facilities shall consist of elevations in either City datum or United States Geological Survey datum.

(D) Except in cases of an emergency, a minimum of fourteen (14) days prior to construction, reconstruction or relocation of any facilities in the right-of-way, the franchisee shall submit to the City Engineer, or her or his designee, for approval, plans and specifications of the proposed installation. Such approval shall not be unreasonably withheld, delayed or conditioned. City review shall only concern matters related to the interests of the City as set forth in this Ordinance.

(E) The franchisee shall cooperate promptly and fully with the City and take all measures necessary to provide accurate and complete information regarding the nature and locations, both horizontal and vertical, of its 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 franchisee, without expense to the City, its employees, agents, or authorized contractors. The franchisee shall designate an agent to provide the City with timely information when required by this subsection.

(F) As reasonably necessary, the franchisee shall relocate or adjust any facilities located in the right-of-way for a public project within a reasonable time. Such relocation or adjustment shall be performed by the franchisee at its sole expense, without expense to the City, its employees, agents, or authorized contractors and shall be specifically subject to rules and regulations of the City not inconsistent with this Ordinance pertaining to such.

(G) It shall be the sole responsibility of the franchisee to take adequate measures to protect and defend its facilities in the right-of-way from harm and damage. If the franchisee fails to accurately or timely locate facilities when requested, the franchisee has no claim for costs or damages against the City and its authorized contractors or any other party authorized to be in the right-of-way, except to the extent such harm or damage is caused by such party’s negligent or intentional conduct. City and its authorized contractors agree to take reasonable precautionary measures, including, but not limited to, calling for utility locations and observing marker posts, when working near franchisee facilities.

(H) Except in the event of an emergency, the franchisee shall notify the City not less than ten (10) days in advance of any construction, reconstruction, repair or relocation of facilities which would require any street closure which reduces traffic flow to less than two lanes of moving traffic. The City shall follow its policies in the grant or denial of such authority, which shall not be unreasonably delayed. Except in the event of an emergency, no such closure shall take place without such notice and 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. For all work within the right-of-way, the franchisee shall erect and maintain signs and other devices as required by City ordinances, regulations and rules.

(I) 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 regulations.

16-9A03 COMPLIANCE WITH STREET TREE ORDINANCE.

The franchisee shall comply with the provisions of the Street Tree Ordinance (Chapter 18, Article 1, of the Code of the City of Lawrence, Kansas) and amendments thereto, in the care, pruning, trimming, and removing of trees located in or on the City right-of-way.

16-9A04 Location of Underground Equipment and Facilities.

Franchisee’s equipment shall be placed underground as required by City ordinances, including Chapter 5, Article 4A of the Code of the City of Lawrence, and amendments thereto. Where underground construction is made, the equipment and any necessary trenching shall be installed and maintained or provided by the franchisee in accordance with the ordinances of the City without expense to the City.

16-9A05 Severability.

If any section, clause, sentence, or phrase of this ordinance is found to be unconstitutional or is otherwise held invalid by any court of competent jurisdiction, it shall not affect the validity of any remaining parts of this ordinance.

Section 2. This ordinance shall take effect and be in full force and effect following its adoption and publication as provided by law.

Passed by the Governing Body this _____ day of February, 2007.

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Mike Amyx, Mayor

ATTEST:

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Frank S. Reeb, City Clerk

APPROVED AS TO FORM AND LEGALITY:

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Toni Ramirez Wheeler, Interim Director of Legal Services

Publish one time and return one Proof of Publication to the City Clerk and one to the Director of Legal Services.