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(A) No person may excavate, construct, or use a facility within the ROW of the City except as provided in this Chapter. The ROW user’s use of the ROW is in all matters subordinate to the City’s use or occupation of the ROW. The City may reserve sufficient space within the ROW for future public improvements. Without limitation of its rights, the City expressly reserves the right to exercise its governmental powers now and hereafter vested in or granted to the City.

(B) The ROW user shall coordinate the placement of facilities in a manner that does not interfere with any existing, planned, or future public improvement and does not compromise the public health, safety or welfare, as reasonably determined by the City. The facilities shall be placed with adequate clearance from such public improvements so as not to impact or be impacted by such public improvements and as required by the City’s technical specifications, available in the office of the City Engineer and on the City’s website. Such standards shall be competitively neutral and not unreasonable or discriminatory.

(C) The ROW user must give due consideration to any request made by the City concerning placement of facilities in private easements in order to limit or eliminate future street improvement relocation expenses.

(D) All facilities shall be located and laid so as not to disrupt or interfere with any pipes, drains, sewers, irrigation systems, or other structures or public improvements already installed. In addition, the ROW user shall, in doing work in connection with its facilities, avoid, so far as may be practicable, disrupting or interfering with the lawful use of ROW or other public lands of the City.

(E) All facilities of the ROW user shall be placed so that they do not interfere with the use of ROW and public lands. The City, through its City Engineer, shall have the right to consult and review the location, design and nature of the facility prior to its being installed.

(F) Whenever reasonably possible, all newly constructed facilities shall be located underground. The ROW user shall comply with all requirements of the City relating to underground facilities. This requirement may be discretionally waived by the City Engineer for safety concerns, or some other good cause under the condition that it does not cause discrimination among ROW users. If this requirement is waived, the facilities shall be located as directed by the City Engineer, including, but not limited to, requirements regarding location and height. Above ground facilities shall comply with the technical specifications and all applicable zoning regulations, and be located in a manner that does not compromise the public health, safety or welfare.

(G) The ROW user shall not interfere with the facilities of other ROW users without their permission. When the City requires or negotiates to have a service provider cease using its existing poles and to relocate its facilities underground, all other service providers using the same poles shall also relocate their facilities underground at the same time, except transmission equipment, as defined in 47 CFR 1.40001. Provided, any such relocations shall be subject to the appeal process contained in OMC Section 12.14.100.

(H) A ROW user shall not construct or reconstruct any of its facilities located upon, over, under or within the City ROW without first having submitted in writing a description of its planned improvement to the City Engineer and having received a permit for such improvement. Any drawings, plans and/or specifications submitted shall be certified by a Kansas registered professional engineer stating that such drawings, plans or specifications, or both, comply with all applicable technical codes, rules and regulations, unless such plans are based directly on nationally recognized codes, or City specifications which are appropriately cited, and attested to on the plans by the signature of an authorized official of the organization applying for the permit.

(I) The ROW user shall cooperate promptly and fully with the City and take all reasonable measures necessary to provide accurate and complete on-site information regarding the nature and horizontal and vertical location of its facilities located within the ROW, both underground and overhead, when requested by the City or its authorized agent for a public improvement. Such location and identification shall be at the expense of the ROW user without any expense to the City, its employees, agents, or authorized contractors.

(J) The service provider shall keep and maintain accurate records and as-built drawings depicting accurate location of all its facilities constructed, reconstructed or relocated in ROW. Within ten (10) days of a request by the City, the service provider will provide to the City information concerning the location and conditions of such facilities as may be reasonably requested. Such information shall be either on Kansas state plane coordinates, or include prominent ground features sufficient to allow the City to align the facilities. When available to the service provider, such information will be submitted electronically in an AutoCad® format to the extent compatible with the City’s Geographical Information Systems (GIS) and Johnson County Automated Integrated Mapping Systems (AIMS); provided, however, that nothing herein shall be construed to require the service provider to acquire or modify any electronic mapping system. Underground facilities shall be differentiated from overhead facilities. Such mapping and identification shall be at the sole expense of the service provider.

(K) The service provider shall not sell, transfer, lease, assign, sublet or dispose of its facilities, or any portion thereof, that is located in City ROW, or any right, title or interest in the same, or the transfer of any rights granted by the City to any person either by forced or involuntary sale, or by ordinary sale, consolidation or otherwise, without notice to the City. This provision shall not apply to the sale or lease of facilities to reseller service providers. No notice to the City shall be required for a transfer in trust, mortgage, or other similar instrument, in whole or in part, to secure an indebtedness, or for a pro forma transfer to a corporation, partnership, or other entity controlling, controlled by or under common control with the service provider.

(L) Encroachments in the ROW for private purposes which create a safety hazard, as determined by the City Engineer, are prohibited. The City may prohibit the use or occupancy of a specific portion of the ROW by a ROW user due to public health, safety or welfare considerations. (Ord. 16-58 § 1, 2016.)