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HomeMy WebLinkAbout8C - Public-Right-Of-Way . > CITY COUNCIL AGENDA REPORT MEETING DATE: AGENDA #: PREPARED BY: REVIEWED BY: AGENDA ITEM: JUNE 19, 2000 8C JANE KANSIER, PLANNING COORDINATOR DONALD RYE, PLANNING DIRECTOR CONSIDER APPROVAL OF ORDINANCE OO-XX APPROVING AN ORDINANCE REGULATING THE PLACEMENT OF UTILITIES IN THE PUBLIC RIGHT-OF-WAY AND REPEALING THE MORATORIUM ON THE INSTALLATION OF TELECOMMUNICATION FACILITIES IN THE PUBLIC RIGHT-OF- WAY DISCUSSION: History: On January 3, 2000, the City Council enacted a 120 day moratorium on the installation of any telecommunications facilities in the public rights-of-way. On May 1, 2000, the Council extended this moratorium for an additional 60 days, or until July 3, 2000. The purpose of the moratorium was to analyze and reconcile the provisions of the Telecommunications Act of 1996, Minnesota Statutes 237.162 and City ordinances as they relate to telecommunications in the public rights-of-way. As part of this process, the City invited providers of cellular telephone service in Prior Lake to meet with staff and discuss issues related to the use of the right-of-way. The meeting was held on Wednesday, February 16, 2000, and representatives from AT&T and U.S. West Wireless were present. At the conclusion of the meeting, it was agreed that the wireless providers would meet to discuss this issue and report back to the City with any suggestions. Following this meeting, U.S. West sent a letter suggesting some modifications to existing City ordinances. The other wireless communication providers did not provide any additional comments to City staff. As part of the moratorium process, the City Attorney also reviewed the relevant state and federal statutes and rules. Essentially, these rules do not allow a City to treat telecommunication providers requesting to use the public right-of-way any differently than the City treats other utilities, such as gas, electric, cable or sewer and water suppliers. The statutes do allow a City to require a permitting process for anyone wishing to use the public right-of-way. As part of that process, the City may charge a permit fee to recover management costs and the City may also require restoration of the right-of-way. A copy of Minnesota Statute 9237.163 is attached to this report. 1:\OOfiles\OOordamd\citycode\roword\619ccprt.doc 1 16200 Eagle Creek Ave. SL Prior Lake. Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQL\L OPPORTL:'\ITY Ef\lPLOYER "_CTIr"iT ALTERNATIVES: RECOMMENDED MOTION: REVIEWED BY: Current Circumstances: As a result of the research, the staff and the City Attorney are recommending the adoption of a "Right-of-way Ordinance". This ordinance ensures that telecommunication companies requesting use of the public right-of-way are treated no differently than other users, and it establishes a permitting process consistent with Minnesota statutes. The ordinance does not affect the Zoning Ordinance requirements pertaining to antennas and towers located outside of the right-of-way on private property. It must also be noted this ordinance will only apply to City public right-of-way. It does not apply to State highway or County road right-of-way since the City has no permitting authority over those right-of-ways. Issues: The original purpose of the moratorium was to determine how the City should deal with requests for antennas in the public right-oF-way. State statutes do not allow the City to treat these entities any differently than other utilities. However, the proposed ordinance establishes a permitting procedure which protects the integrity of the public right-af-way, consistent with the State statute. The existing moratorium expires on July 3, 2000. The attached ordinance also repeals the moratorium upon the publication of the rigtlt-of-way ordinance. Conclusion: Staff and the City Attorney believe this is the best method available to protect the public right-of-way. We therefore recommend adoption of the attached ordinance. The City Council has three alternatives: 1. Adopt Ordinance OO-XX approving an ordinance regulating the placement of utilities in the public right-of-way and repealing the moratorium on the installation of telecommunication Facilities in the public right-oF-way. 2. Deny Ordinance OO-XX. 3. Provide staff with specific direction. Adopt Ordinance OO-XX approving an ordinance regulating the placement of utilities in the public right-of-way and repealing the moratorium on the installation of telecommunication facilities in the pl}blic ~ight-of-way. Frank Boyles, City Manager 1 :\OOfiles\OOordamd\citycodelroword\619ccprt.doc 2 'l'lide. bocal service i}; Laws 1996. c. 340, l23, ~ 2. err. May 10. {i3tcmca..l and . for "clauses (1) to ~d. 5, inserted tempo- :lte of authority as an 1 and added an inten- able state or federal of telephone or te1e- 1 ground for revoca- :>ubd. I, in par. (a), ng the commission to ,!rnment unit under : par. (d), relating to governing bodies of deleted par. (e), re- on requirements of a ::1.munications carrier or operation of facil- :>ubd. 9, substituted . for "with" following :.ed reference to the \.ct of 1996, and made ':' municipal franchise under ~s of ~W3 on. U S West O:>m- Redwood Falls, App. denied. municipal tranehising lencing legislative in- 1ici pall ties to require }mpany. U S West .1 of Redwood Falls, ~iew denied. :iephone company to 'jnes in concrete duct. f any person cutting r purposes of compa- uch company request- nent of city tranchi.se 1 to enC38e its t!ber . agree to limitation o( 3(erT'ed authority 0V1!t telephone companies to a state commission. and limited retained municipal authority to regulate localion of telephone lines did not encompass city's requirement that company encase ita fiber optic linea in concrete duct or otherwise agree to Umlta- tion of liability. U S West Communication., 100. ". City of Redwood Falls. App.I99'7. 558 N.W.2d 512, review denied. 237.161. Expired Historical and Statutory Notes Subdivision 6 of this section provided for the expiring. this section was amended by Laws 1994. expiration of this section July 1. 1996. Prior to c. 534, art. 1. ~ 1. 237.162. Public righls--oC-waYi definitions Subdivision 1. Generally. The tenns used in sections 237.162 and 237.163 have the meanings given to them in this section. Subd. 2. Local government unit. "Local government unit" means a county, home rule charter or statutory city, or town. Subd. 3. Public right~f-way. "Public right-<lf-way" means the area on, below, or above a public roadway, highway, street, cartway, bicycle lane, and public sidewalk in which the local government unit has an interest, including other dedicated rights-<>f-way for travel purposes and utility easements of local government units. A public right-of-way does not include the airwaves above a public right-of-way with regard to cellular or other nonwire telecommunications or broadcast service. Subd. 4. Telecommunications right-of-way user. :r:~I~c9mmunications right-of-way user" means a person owning or controlling a facility in the public right-of-way, or seeking to own or control a facility in the public right-of-way, that is used or is intended to be used for transporting telecoInrnunications or other voice or' data information. A C'3ble'.comrnuirlcatlon system defined and regulated under chapter 238.'and telecori:ununications activities related to providing natural gas or electric energy servi~whether provided by a public utility. as defined in section 216B.02, a municipality, a municipal gas or power agency organized ~er chapter 453 or 453A, or a cooperative electric association organized under chapter 308A, are not telecommunications right-of-way users for'{ 'the' purposes of this section and section 237.163. . ~: . ,. . . ..~: ~::..~: ~. . Subd. 5. Excavate. "Excavate" means to dig into or in any way remove, physically disturb, or penetrate a part of a public right-of-way. ' Subd. 6. Obstruct. "Obstru~" means to p~;a 'tangible object in a public right-of-way so as to hinder free and open passage over that or:'~ypart of the right-of-way. . Subd. 7. Right~f-way permit. "Right4)f-way'pe'nnit" means a pennit to perfonn work in a public right-of-way, whether to excavate or obstruct the right4)f-way. . .t . Subd. 8. Manage the public right-of-way. ~e the public right-of-way" means the authority of a local government unit to do any or .w..!: ~f the following: .. (1) require registration; .:: .' "c' (2) req~e construction perfonnance bonds and insurance coverage; (3) establish installation and construction standards; (4) establish and define location and relocation requirements for equipment and facilities; (5) establish coordination and timing requirements; (6) require telecommunications right-of-way users to submit, for right-of-way projects commenced after May 10, 1997, whether initiated by a local government unit or any telecommunications right-of-way user, project data reasonably necessary to allow the local government unit to develop a right-of-way mapping system, such as a geographiea1 informa- tion mapping system; (7) require telecommunication right-of-way users to submit, upon request of a locU government unit, existing data on the location of the user's facilities oeeupying the public: right-of-way within the local government unit. The data may be submitted in the fonn 21 ~~ ::.:I!'no,~....~:..,.,'t-,r.t,...,~~"- . \C.t"j..e-:,;"....;....., Y+"'. . .:I'~.t">?'~~l!::. .i~.:~__, ., ~ 237.162 TELECOMMUNICATIONS maintained by the user and in a reasonable time after receipt of the request based on the amount of data requested; (8) establish right-oC-way permitting requirements for street excavation and obstruction; (9) establish removal requirements for abandoned equipment or facilities. if required in conjunction with other right-of-way repair, excavation. or construction; and (10) impose reasonable penalties Cor unreasonable delays in construction. Sub<!. 9. )1anagement costs or rights-of-way management costs. "Management costs" or "rights-of-way management costs" means the actual costs a local government unit incurs in managing its public rights-or-way, and includes such costs, if incurred, as those associated with registering applicants; issuing, processing, and verifying right-of-way permit applications; inspecting job sites and restoration projects; maintaining, supporting, protect- ing, or moving user equipment during public right-of-way work; determining the adequacy of right-of-way restoration; restoring work inadequately performed after providing notice and the opportunity to correct the work; and revoking right-of-way permits. Management costs . do not include a ent b a telecommunications ri ht-of-wa user for the use of the ublic ng -ot-way, the fees an cost 0 tigatlon re ting to the interpretation of this section or section 237.163 or any ordinance enacted under those sections, or the local unit oC govern- ment's fees and costs related to appeals taken pursuant to section 237.163, subdivision 5. Laws 1997, c. 123, ~ 3. Historical and Statutory Notes rules required under ~ 237.163, subd. 8, but local government units may exercise the authority that existed before Nov. I, 1996, with regard to the powers described in that clause, until those rules are adopted. 1997 Legislation Laws 1997, c. 123, ~ 12, provides in part that ~ 3 (enacting this section) is effective May 10, 1997, except that subd. 8, d. (3), is effective upon the earlier of March 1, 1998, or the adoption of the 237.163. Use and regulation of public rights-of-way Subdivision 1. Legislative finding. The legislature ~ds, and establishes the principle that, it is in the state's interest that the use and regulation of public rights-of-'W'aY be carried on in a fair, efficient, competitive~ neutral, and substantially uniform manner, while recogniz- ing such regulation must reflect t e distinct engineering, construction, operation, maintenance and public and worker safety requirements, and standards applicable to various users of public rights-of-way. Because of the J?otential for installation by telecommunication compa- nies of multiple and competrilg facilities within the public rights-of-way, the legislature finds It 18 necessary to enact tne roVISions of this section and section 237.162 to s cmcany ~u onze 0 governmen umts to re a e use 0 pu c n~ ts-of way by telecommuni- caUons nght-of-way users. Subd. 2. Generally. (a) Subject to this section, a telecommunications right-of-way user authorized to do business under the laws of this state or by license of the Federal Communications Commission may construct, maintain, and operate conduit, cable, switches, and related appurtenances and facilities along, across, upon, above, and under any public right-of-way. (b) Subject to this section, a local government unit has the authority to manage' its public rights-of-way and to recover its rights-of-way management costs. The authority defined in this section may be exercised at the option of the local government unit. The exercise of this authority is not mandated under this section. A local government unit may, by ordinance: (1) require a telecommunications right-oi-way user seeking to excavate or obstruct a public right-oC-way for the purpose of providing telecommunications services to obtain a right-of- way permit to do so and to impose pennit conditions consistent with the local government unit's management of the right-oC-'W'aY; (2) require a telecommunications right-oC-way user using, occupying, or s~king to use or occupy a public right-of-way for the purpose of providing telecommunications services to register with the local government unit by providing the local government unit with tha following infonnation: ,. 22 l'f ad rei eff pia go'. unc ( is per ~ of , are; the req' reir. way per: (l a 10 assc ex~ (c or c whe this trav shal that 81 appI com (b gOVE welf. (c tion~ tern pe~ (1 (2 perp its ci (3 (4: unle: (5) stan! of th UM)ttJNICATIONS ~quest based on the :1 and obstruction; Jlties. if required in ".d O{'1. sts. "Management leal government unit J incurred. as those : :-".ght-of-way pennit 3upporting, protect- ~'1mg the adequacy of providing notice and Management costs :he use of the public on of this section or local unit of govern- ')(.163, subdivision 5. 163, 5ubd. 8, but local ~ise the authority that 6. with regard to the :!ause, until those roles ;:;.blishes the principle :'1ts-of.way be carried mner, while recogniz:' Jeration, maintenance ~ to various users of ommunication compa- '. the legislature finds '.37.162 to specifically -'9t-ay by telecommuni- ons right-oi-way user ense of the Federal :1duit, cable, switcl1es, md under any puhlic : to manage' its public e authority defined in . The exercise of this oit may, by ordinance: ce or obstruct a public to obtain a right-of- the local government , or seeking to use or .:.nications services to -nment unit with the. TELECOMMUNICATIONS ~ 237.163 (i) the applicant's name, gopher state one-eall registration number under section 2160.03, address, and telephone and facsimile numbers; (ii) the name, address. and telephone and facsimile numbers of the applicant's local representative; (ill) proof of adequate insurance; and (iv) other information deemed reasonably necessary by the local government unit for the efficient administration of the public right-of-way; and (3) require telecommunications right-of-way users to submit to the local government unit plans for construction and major maintenance that provide reasonable notice to the local government unit of projects that the telecommunications right-of-way user expects to undertake that may require excavation and obstruction of public rights-of-way. (c) A local government unit may also require a telecommunications right-of-way user that is registered with the local government unit pursuant to paragraph (b), clause (2), to periodically update the information in its registration application. Subd. 3. Restoration. (a) A telecommunications right-of-way user, after an e.."(cavation of a public right-<lf-way, shall provide for restoration of the right-ai-way and surrounding areas, including the pavement and its foundation, in the same condition that existed before the excavation. Local government units that chooSe to perfonn their own surface restoration required as a result of the excavation may require telecommunications right-of-way users to reimburse the reasonable eosts of that surface restOration. Restoration of the public right-of- way must be completed within the dates specified in the right-of-way permit, unless the permittee obtains a waiver or a new or amended right-of-way permit. (b) If a telecommunications right-of-way user '~~cts not to restore the public right-of-way, a local government unit may impose a degradation fee in lieu of restoration to recover costs associated with a decrease in the useful life' ot the public right-of-way caused by the excavation of the right-of-way by a telecommunicatiOnS right-of-way user. ... ~\. a, . (c) A telecommunications right-of-way user that "disturbs uncultivated sod in the excavation or obstruction of a public right-<>f-way shall plant' grasses that are native to Minnesota and, wherever practicable, that are of the local eco-type, as part of the restoration required under this subdivision, unless the owner of the real property over which the public right-<>f-WaY traverses objects. In restoring j;he right-<lf-way,. ~e telecommunications right-oi-way user shall consult with the department of natural resourc:~s regarding the species of native grasses that contonn to the requirements of this paragraph:" '. Subd. 4. Pennit denial or revocation. (a) A local government unit may deny any application for a right-<lf-way permit if the telecommunications right-oi-way user does not comply with a provision of this section. ... (b) A local government unit may deny an application for a right-<lf-way pennit if the local government unit determines that the denial is necessary to protect the health, safety, and welfare or when necessary to protect the public righ~:>f-way and its current use. (c) A local government unit may revoke a right-of-way permit granted to a telecommunica- tions right-of-way user, with or without fee refund, in the event of a substantial breach of the tenns and conditions of statute, ordinance, rule, or regulation or any material condition of the pennit. A substantial breach by a pennittee includes, but is not limited to, ,the following: (1) a material violation of a provision of the right-of-way pennit; (2) an evasion or attempt to evade any material provision of the right-of-way pennit, or the perpetration or attempt to perpetrate any fraud or deceit upon the local government unit or its citizens; (3) a material misrepresentation of fact in the right-of-way permit application; (4) a failure to complete work in a timely maimer, unless a pennit extension is obtained or unless the failure to complete work is due to reasons beyond the pennittee's control; and (5) a failure to correct, in a timely manner, work that does not confonn to applicabl~ standards, conditions, or codes, upon inspection and notification by the IDeal government unit oC the faulty condition. 23 "-_._----_._~..--------,._._....---------_._-_.._.. .._----,._.~ !.~ ~ 'I ~ 237.163 TELECOMMUNICATIONS (d) Subject to this subdivision, a local government unit may not deny an application for a right-of-way pennit (or failure to include a project in a plan submitted to the local government unit under subdivision 2, paragraph (b), clause (3), when the telecommunications right-of-way user has used commercially reasonable efforts to anticipate and plan for the project. (e) In no event may a local government unit unreasonably withhold approval of an application for a right-of-way pennit. or unreasonably revoke a pennit. Text of subd. 5 repealed effective June 30, 1999. Subd 5. Appeal. (a) A telecommunications right-of-way user that: (1) has been denied registration; (2) ha.<3 been denied a right-of-way pennit; (3) has had it3 right-<lf-way permit revoked; or (4) believes that the fees imposed on the user by the local government unit do not conform to the requirements of subdivision 6, may have the denial, revocation, or fee imposition reviewed, upon written request; by the governing body of the local government unit. The governing body of the local government unit shall act on a timely written request at its next regularly scheduled meeting. A decision by the governing body affinning the denial, revocation, or fee imposition must be in writing and suppo~d by written findings establishing the reasonableness of the decision. (b) Upon affirmation by the governing body of the denial, revocation, or fee imposition, the telecommunications right-of-way user shall have the right to have the matter resolved by binding arbitration. Binding arbitration must be before an arbitrator agreed to by both the local government unit and the telecommunications right-of-way user. If the parties cannot agree on an arbitrator, the matter must be resolved by a three-person arbitration panel made up of one arbitrator selected by the local government unit, one arbitrator. selected by the telecommunications right-of-way user and one person selected by the other two arbitrators. The costs and fees of a single arbitrator shall be borne equally by the local government unit and the telecommunications right-of-way user. In the event there is a third arbitrator, each party shall bear the expense of its own arbitrator and shall jointly and equally bear with the o~her party the expense ot the third arbitrator and of the arbitration. Each party to the arbitration shall pay its own costa, disbursements, and attorney fees. Subd. 6. F~8. (a) A local government unit may recover its right-of-way management costs by imposmg a fee for registration, a fee for each right-of-way permit, or, when appropriate, a fee applicable to a particular telecommunications righHf-way user when that user causes the local government unit to incur costa as a result of actions or inactions of that user. A local govern:mt:nL wrlt marnot recover from a telecommuniCations right-oi-way user costS caused by another entity's activity in the right-of-way. (b) Fees, or other right-of-way obligations, imposed by a local government unit on telecommunications right-ot-way users under this section must be: (1) based on the actual costs incurred by the local government unit in managing the public right-of-way; (2) based on an allocation among all users of the public right-of-way, including the local government unit itself, which shall reflect the proportionate cost3 imposed on the local government unit by each of the various types of uses of the public rights-of-way; (3) imposed on a competitively neutral ba.<3is; and (4) imposed in a manner so that above-ground uses of public rights-of-way do not bear costs incurred by the local government unit to regulate underground uses of public rights-of- way. (c) The right3, duties, and obligations regarding the use of the public right-of-way imposed under this section must be a lied to all users of the public right-of-way, including the local government unit e recognizmg re a on must re ect e 1 engineering, construc- tion, operation, maintenance and public and worker safety requirement3, and standards applicable to various users of the public right3-of-way. For users subject to the franchising authority of a local government unit, to the e.'<tent' those rights, duties, and obligations are. 24 ' addressed in the tenns o( an applicable franchise agreement, the tenn8 of the franchise shall prevail over any con11icting provision in an ordinance. Subd. 7. Additional rights-of-way provi8ions. (a) In managing the public rights-of-way and in imposing fees under this section, no local government unit may: (1) unlawfully discriminate among telecommunications right-of-way users; (2) grant a preference to any telecommunications right-of-way user; L1.. (3) create or erect any unreasonable requirement for entry to the public rights-ot.;.way by 7' telecommunications right-of-way users; or (4) require a telecommunications right-of-way user to obtain a franchise or pay for the use o{ the right-of-way. ==. (b) A telecommunications right-of-way user need not apply for or obtain right-ot-WaY permits for facilities that are located in public rights-of-way on May 10, 1997, for which the user has obtained the required consent of the local government unit, or that are otherwise lawfully occupying the public right-of-way. However, the telecommunications right-of-way user may be required to register and to obtain a right-of-way permit for an excavation or obstruction of existing facilities within the public right-of-way after May 10, 1997. or fee imposition, the (c) Data and documents exchanged between a local government unit and a telecommunica- e matter resolved by tions right-of-way user are subject to the tenns of chapter 13. A local government unit not .greed to by both the complying with this paragraph is subject to the penalties set forth in section 13.08. I! the parties cannot .' (d) A local government unit may not collect a fee imposed under this section through the .rbitration panel made ~ rovision of in-kind services b a telecommunications right-of-way user, nor may a local :ator selected by the T ~overnment unit reqwre e provision 0 m- . d servICes as a con on 0 consent to use the )ther two arbitrato~. Qt' focal government unit's public right-of-way. local government umt? SuM 8. Uniform statewide standards. (a) To ensure the safe and convenient use of public rights-of-way in the state, the public utilities commission shall develop and adopt by June 1, 1999, statewide construction standards for the purposes of achieving substantial statewide unifonnity in construcUon standards where appropriate, providing .-:ompetitive neutrality among telecommunications right-of-way users, and pennitting efficient uSe of technology. The standards shall govern: '. i (1) the terms and conditions of right-of-way cODstruction, excavation, maintenance, and repair; and (2) the tenns and conditions u!\der which telecommunications facilities and equipment are placed in the public right-of-way. (b) The public utilities cornm.i.s.8ion is authorized to review, upon complaint by ~n aggiieved telecommunications right-of-way user, a decision or regulation by a local government unit that is alleged to violate a statewide standard. . :.. (c) A local unit of government may not adopt an ordinance or other regulation that conflicts with a standard adopted by the commission for the purposes described in paragraph (a). Laws 1997, e. 123, ~ 4. Amended by Laws 1998, c. 345, ~ 4, eft. April 1, 1998. )MMt.]~JCATIONS :1n application Cor a mitted to the local ~ telecommunications Ite and plan Cor the ~old approval of an ( 1) has been denied r.ght-of-way permit vernment unit do not ., revocation, or fee :he local government .mely written request s body affirming the i by written findings e expense of its own l expense of the third 3.nd attorney fees. :t.-of-way management ~;ay permit, or, when .)f-way user when that Jns or inactions of that tions right-ot-way user government unit on In managing the public ...-ay, including the local im posed on the local cs-of-way; :1ts-of-way do not bear .lses of public rights-of- lic right-of-way imposed . 7.-ay, including the local :t engineering, construe- ~ements, and standards lbject to the franchising ties. and obligations are Tl 11 - TE LECOMMUNICA nONS ~ 237.164 Historical and Statutory Notes public utilities commission of the rules required under section 4, subd. 8. Laws 1997, c. 123, ~ 11, provides that ~ 4, subd. 5, (relating to appeals) is repealed, effective June 30, 1999. 1997 Le(i81ation Laws 1997, c. 123, ~ 12, provides in part that ~ 4 (enacting this section) is effective May 10, 1997, except that subd. 3, par. (b), is effective upon the earlier of March 1, 1998, or the adoption by the 237.164. Universal service discounts for schoola and libraries The commission shall establish intrastate service discounts for schools and libraries by order to the extent and within the time frame necessary to enable schools and libraries to begin receiving federally supported discounts at the earliest date pennitted by the Federal Communications Commission. Laws 1997. c. 22:3, ~ 8, eft. May 31, 1997. 25 CITY OF PRIOR LAKE RIGHT-OF-WAY ORDINANCE City of Prior Lake, Scott County, Minnesota AN ORDINANCE AMENDING SECTION 701 OF THE PRIOR LAKE CITY CODE PROVIDING FOR THE ADMINISTRATION AND REGULATION OF PUBLIC RIGHTS-OF-WAY IN THE PUBLIC INTEREST , AND TO PROVIDE FOR THE ISSUANCE AND REGULATION OF RIGHT-OF-WAY PERMITS The City Council of the City of Prior Lake hereby ordains as follows: 1. Ordinance 00-01 of the Prior Lake City Council adopted on January 3, 2000 and published in the City's official newspaper on January 8, 2000, initiating a 120-day moratorium on the installation of any telecommunication facility in the public right-of-way, is hereby repealed. 2. The title of City Code Section 701 is hereby amended to read: Streets, Sidewalks, Public Ways and Public Rights-of-Way. 3. City Code Section 701 be further amended to add the following: 701.700: RIGHT-OF-WAY MANAGEMENT 701.701 Definitions: The definitions contained in Minnesota Statute S 237.162 and Public Utility Commission Rules S 7819 are hereby incorporated by reference. References hereafter to "subsections" are, unless otherwise specified, references to subsections in this Section. Defined terms remain defined terms whether or not capitalized. Applicant. Any Person requesting permission to excavate or obstruct a Right-of-Way. Emergency. A condition that (1) poses a clear and immediate danger to life or health, or of a significant loss of property; or (2) requires immediate repair or replacement of Facilities in order to restore Utility Service to a customer. Equipment. Any tangible asset used to install, repair, or maintain Facilities in any Right-of-Way. Excavation Permit. A Right-of-Way Permit that allows the Permittee to excavate that part of the Right-of-Way described in such permit. Local Representative. A local Person or Persons, or designee of such Person or Persons, authorized by a Registrant to accept service and to make decisions for that Registrant regarding all matters within the scope of this Section. Obstruction Permit. A Right-of-Way Permit that allows the Permittee to obstruct that part of the Right-of-Way described in such permit. 16200 Eagle Creek Ave. SE.. Prior Lake. Minnesota 55372-1714 / Ph (612) 447-4230 / Fax (612) 447-4245 AN EQL.:AL OPPORTL.:\ITY EMPLOYER 701.702 701.703 Registrant. Any Person who (1) has or seeks to have its Equipment or Facilities located in any Right-of-Way, or (2) in any way occupies or uses, or seeks to occupy or use, the Right-of-Way or place its Facilities in the Right-of-Way. Supplementary Application. An application made to Excavate or Obstruct more of the Right-of-Way than allowed in, or to extend, a permit that had already been issued. Registration and Right-of-Way Occupancy: (1) Registration: Each Person who occupies, uses, or seeks to occupy or use, the Right-of-Way or place any Equipment or Facilities in the Right-of-Way, including Persons with installation and maintenance responsibilities by lease, sublease or assignment, must register with the City. Registration will consist of completing an application on forms provided by the City and paying a registration fee to the City. (2) Registration Prior to Work. No Person may construct, install, repair, remove, relocate, or perform any other work on, or use any Facilities or any part thereof in any Right-of-Way without first being registered with the City. (3) Exceptions. Nothing herein shall be construed to repeal or amend the provisions of a City ordinance permitting Persons to plant or maintain boulevard plantings or gardens in the area of the Right-of-Way between their property and the street curb. Persons planting or maintaining boulevard plantings or gardens shall not be deemed to use or occupy the, Right-of-Way, and shall not be required to obtain any permits or satisfy any other requirements for planting or maintaining such boulevard plantings or gardens under this Section. However, nothing herein relieves a Person from complying with the provisions of the Minn. Stat. Chap. 2160, "One call" Law. Registration Information: (1) Information Required. The information provided to the City at the time of registration shall include, but not be limited to: . Each Registrant's name, Gopher One-Call registration certificate number, address and e-mail address if applicable, and telephone and facsimile numbers. . The name, address and e-mail address, if applicable, and telephone and facsimile numbers of the Local Representative. The Local Representative or designee shall be available at all times. Current information regarding how to contact the Local Representative in an Emergency shall be provided at the time of registration. . A certificate of insurance or self-insurance: + Verifying that an insurance policy has been issued to the Registrant by an insurance company licensed to do business in the State of Minnesota, or a form of self-insurance acceptable to the City; + Verifying that the Registrant is insured against claims for personal injury, including death, as well as claims for property damage arising out of the (i) use and occupancy of the Right-of-Way by the Registrant, its officers, agents, employees and Permittees, and (ii) placement and use of Facilities in the Right-of-Way by the Registrant, its officers, agents, employees and Permittees, including, but not limited to, protection against liability arising II Iii from completed operations, damage of underground Facilities and collapse of property. + Naming the City as an additional insured as to whom the coverages required herein are in force and applicable and for whom defense will be provided as to all such coverages; + Requiring that the City be notified thirty (30) days in advance of cancellation of the policy or material modification of a coverage term; + Indicating comprehensive liability coverage, automobile liability coverage, workers compensation and umbrella coverage established by the City in amounts sufficient to protect the City and the public and to carry out the purposes and policies of this Section. (2) The City may require a copy of the actual insurance policies. If the Person is a corporation, a copy of the certificate required to be filed under Minn. Stat. S 300.06 as recorded and certified to by the Secretary of State. A copy of the Person's order granting a certificate of authority from the Minnesota Public Utilities Commission or other applicable state or federal agency, where the Person is lawfully required to have such certificate from said Commission or other state or federal agency. (3) Notice of Changes: The Registrant shall keep all of the information listed above current at all times by providing to the City information as to changes within fifteen (15) days following the date on which the, Registrant has knowledge of any change. 701.704 Permit Requirements: (1) Permit Required: Except as otherwise provided in this Code, no Person may obstruct or excavate any Right-of-Way without first obtaining the appropriate Obstruction Permit or Excavation Permit from the City. (2) Permit Extensions: No Person may excavate or obstruct the Right-of-Way beyond the date or dates specified in the permit unless such Person (i) makes a Supplementary Application before the expiration of the initial permit, and (ii) the Supplementary Application is granted. (3) Delay Penalty: Notwithstanding Permit Extensions, a delay penalty pursuant to Public Utility Commission Rule F819.1000 subp. 3 may be imposed. (4) Permit Display: Permits issued under this Section shall be conspicuously displayed or otherwise available at all times at the indicated work site and shall be available for inspection by the City. 701.705 Permit Applications: Application for a permit is made to the City. Right-of-Way Permit applications shall contain, and will be considered complete only upon compliance with the requirements of the following provisions: . Registration with the City pursuant to this Section; . Submission of a completed permit application form, including all required attachments, and scaled drawings showing the location and area of the proposed project and the location of all known existing and proposed Facilities. . Payment of money due the City for 701.706 701.707 II II . Permit fees, estimated D'egradation Costs and other Management Costs, . prior Obstructions or Excavations; . any undisputed loss, damage, or expense suffered by the City because of Applicant's prior excavations or Obstructions of the Rights-of-Way or any Emergency actions taken by the City; . franchise or user fees, if applicable. . Payment of disputed amounts due the City by posting security or depositing in an escrow account an amount equal to at least 110% of the amount owing. [Note: Pending adoption by PUC. No agreement with Industry.] . When an Excavation Permit is requested for purposes of installing additional Facilities, and the posting of a Construction Performance Bond for the additional Facilities is insufficient, the posting of an additional or larger Construction Performance Bond for the additional Facilities may be required. (1) Permit Issuance: If the Applicant has satisfied the requirements of this Section, the City shall issue a permit. (2) Conditions. The City may impose reasonable conditions upon the issuance of the permit and the performance of the Applicant thereunder to protect the health, safety and welfare or when necessary to protect the Right-of-Way and its current use. Permit Fees. (1) Excavation Permit Fee. The City shall establish the excavation permit fee in an amount sufficient to recover the following costs: . Management Costs; and . Degradation Costs, if applicable. (2) Obstruction Permit Fee. The obstruction permit fee shall be established by the City and shall be in an amount sufficient to recover the City Management Costs. (3) Payment of Permit Fees. No Right-of-Way Permit shall be issued before payment of excavation or obstruction permit fees. The City may allow Applicant to pay such fees within thirty (30) days of billing. (4) Non refundable. Permit fees that were paid for a permit that the City has revoked for a breach as stated in subsection Restoration of Right-of-Way: (1) Timing: The work to be done under the Excavation Permit, and the Patching and Restoration of the Right-of-Way as required herein, must be completed within the dates specified in the permit, increased by as many days as work could not be done because of extraordinary circumstances beyond the control of the Permittee or when work was prohibited as unseasonal or unreasonable under subsection (2) Prohibited Work. (3) Patch and Restoration. Permittee shall Patch its own work. The City may choose either to have the Permittee restore the Right-of-Way or to restore the Right-of-Way itself. 701.708 . City Restoration. If the City restores the Right-of-Way, Permittee shall pay the costs thereof within thirty (30) days of billing. If, during the thirty-six (36) months following such Restoration, the pavement settles due to Permittee's improper backfilling, the Permittee shall pay to the City, within thirty (30) days of billing, all costs associated with having to correct the defective work. . Permittee Restoration. If the Permittee Restores the Right-of-Way itself, it shall at the time of application for an Excavation Permit post a Construction Performance Bond in an amount determined by the City to be, sufficient to cover the, cost of Restoration. If, within thirty-six (36) months after completion of the Restoration of the Right-of-Way, the City determines that the Right-of-Way has been properly Restored, the surety on the Construction Performance Bond shall be released. (4) Restoration Standards. Restoration must return the Right-of-Way to the same condition that existed before excavation. Subject to this standard, plates 1 to 13, shown in Public Utility Commission Rules, parts 7819.9900 to 7819.9950, indicate maximum limits of restoration methods and area requirements the City can impose when a Right- of-Way User excavates in the public Right-of-Way. The City and Right-of-Way User may agree to a lesser requirement. The Right-of-Way User is responsible for all of its work done in the public Right-of-Way, whether by employees, agents, or independent contracts. (5) Failure to Restore: If the Right-of-Way User fails to Restore the Right-of-Way in the manner and to the condition required by the City, or fails to satisfactorily and timely complete all Restoration required by the City, the City at its option may do such work. In that event the Right-of-Way User shall pay to the City, within thirty (30) days of billing, the cost of restoring the Right-of-Way. If Permittee fails to pay as required, the City may exercise its rights under the Construction Performance Bond. (6) Degradation Fee. A Right-of-Way user may elect to pay a Degradation Fee. However, the Right-of-Way User shall remain responsible for replacing and compacting the subgrade base material iq the excavation and the degradation fee must not include the cost to accomplish these activities. Joint Applications. Registrants may jointly apply for Excavation and/or Obstruction Permits at the same time. Registrants who join in a scheduled Obstruction or Excavation performed by the City, whether or not it is a joint application by two or more Registrants or a single application, are not required to pay the Obstruction and Degradation portions of the permit fee. Registrants who apply for permits for the same Obstruction or Excavation, which the City does not perform, may share in the payment of the Obstruction or Excavation Permit Fee Registrants must agree among themselves as to the portion each will pay and indicate the, same on their applications. 701.709 (1 ) (2) 701.710 701.711 701.712 ~ II Supplementary Applications. Limitation on Area: A Right-of-Way Permit is valid only for the area of the Right-of-Way specified in the permit. No Permittee may do any work outside the area specified in the permit. Any Permittee which determines that an area greater than that specified in the permit must be Obstructed or Excavated must. before working in that greater area, (i) submit a Supplemental Application and pay any additional fees required therein, and (ii) obtain approval of the Supplemental Application. Limitation on Dates: A Right-of-Way Permit is valid only for the dates specified in the permit. No Permittee may begin its work before the permit start date or, except as provided herein, continue working after the end date. If a Permittee does not finish the work by the permit end date, it must (i) submit a Supplemental Application and pay any additional fees required therein, and (ii) obtain approval of the Supplemental Application. Other Obligations. (1 ) Compliance With Other Laws. Obtaining a Right-of-Way Permit does not relieve Permittee of its duty to obtain all other necessary permits, licenses, and authority and to pay all fees required by the City or other applicable rule, law or regulation. A Permittee shall comply with all requirements of local, state and federal laws, including Minn. Stat. SS 2160.01-.09 ("One Call Excavation Notice System"). A Permittee shall perform all work in conformance with all applicable codes and established rules and regulations, and is responsible for all work done in the Right-of-Way pursuant to its permit, regardless of who does the work. (2) Prohibited Work. Except in an Emergency, and with the approval of the City, no Right-of-Way Obstruction or Excavation may be done when seasonally prohibited or when conditions are unreasonable for such work. (3) Interference with Right-ot-Way. A Permittee shall not so obstruct a Right-of-Way so that the natural free and clear passage of water through the gutters or other waterways shall be interfered. Private vehicles of those doing work in the Right-of-Way may not be parked within or next to a permit area, unless parked in conformance with City parking regulations. The loading or unloading of trucks must be done solely within the defined permit area unless specifically authorized by the permit. Denial ot Permit: The City may deny a permit for failure to meet the requirements and conditions of this Section or if the City determines that the denial is necessary to protect the health, safety, and welfare or when necessary to protect the Right-of-Way and its current use. Installation Requirements. The Excavation, backfilling, Patching and Restoration, and all other work performed in the Right-of-Way shall be done in conformance with Engineering Standards adopted by the PUC or other applicable local requirements, in so far as they are not inconsistent with the PUC Rules. [Note: Standards awaiting adoption by PUC. General agreement with Industry.] 701.713 (1 ) (2) (3) 701.714 (1 ) (2) 701.715 Inspection. Notice of Completion. When the work under any permit issued hereunder is completed, the Permittee shall furnish a Completion Certificate in accordance PUC Rules. [Pending adoption by PUC. Agreement with Industry.] Site Inspection. Permittee shall make the work-site available to the City and to all others as authorized by law for inspection at all reasonable times during the execution of and upon completion of the work. Authority of City. At the time of inspection the City may order the immediate cessation of any work which poses a serious threat to the life, health, safety or well-being of the public. The City may issue an order to the Permittee for any work which does not conform to the terms of the permit or other applicable standards, conditions, or codes. The order shall state that failure to correct the violation will be cause for revocation of the permit. Within ten (10) days after issuance of the order, the Permittee shall present proof to the City that the violation has been corrected. If such proof has not been presented within the required time, the City may revoke the permit pursuant to subsection Work Done Without a Permit. Emergency Situations. Each Right-of-Way User shall immediately notify the City of any event regarding its Facilities which it considers to be an Emergency. The Right-of- Way User may proceed to take whatever actions are necessary to respond to the Emergency. Within two business days after the occurrence of the Emergency the Right- of-Way User shall apply for the necessary permits, pay the fees associated therewith and fulfill the rest of the requirements necessary to bring itself into compliance with this Section for the actions it took in response to the Emergency. If the City becomes aware of an Emergency regarding a Right-of-Way User's Facilities, the City will attempt to contact the Local Representative of each Right-of-Way User affected, or potentially affected, by the Emergency. In any event, the City may take whatever action it deems necessary to respond to the Emergency, the cost of which shall be borne by the Right-of-Way User whose Facilities occasioned the Emergency. Non-Emergency Situations. Except in an Emergency, any Person who, without first having obtained the necessary permit, Obstructs or Excavates a Right-of-Way must subsequently obtain a permit, and as a penalty pay double the normal fee for said permit pay double all the other fees required by the Legislative Code, deposit with the City the fees necessary to correct any damage to the Right-of-Way and comply with all of the requirements of this Section. Supplementary Notification. If the Obstruction or Excavation of the Right-of-Way begins later or ends sooner than the date given on the permit, Permittee shall notify the City of the accurate information as soon as this information is known. 701.716 (1 ) (2) (3) 701.717 701.718 II " Revocation of Permits. Substantial Breach. The City reserves its right, as provided herein, to revoke any Right-of-Way Permit, without a fee refund, if there is a substantial breach of the terms and conditions of any statute, ordinance, rule or regulation, or any material condition of the permit. A substantial breach by Permittee shall include, but shall not be limited to, the following: . The violation of any material provision of the Right-of-Way Permit; . An evasion or attempt to evade any material provision of the Right-of-Way Permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the City or its citizens; . Any material misrepresentation of fact in the application for a Right-of-Way Permit; . The failure to complete the work in a timely manner; unless a permit extension is obtained or unless the failure to complete work is due to reasons beyond the Permittee's control; or The failure to correct, in a timely manner, work that does not conform to a condition indicated on an order issued pursuant to subsection Written Notice of Breach. If the City determines that the Permittee has committed a substantial breach of a term or condition of any statute, ordinance, rule, regulation or any condition of the permit the City shall make a written demand upon the Permittee to remedy such violation. The demand shall state that continued violations may be cause for revocation of the permit. A substantial breach, as stated above, will allow the City, at his or her discretion, to place additional or revised conditions on the permit to mitigate and remedy the breach. Response to Notice of Breach. Within twenty-four (24) hours of receiving notification of the breach, Permittee shall provide the City with a plan, acceptable to the City, that will cure the breach. Permittee's failure to so contact the City, or the Permittee's failure to submit an acceptable plan, or Permittee's failure to reasonably implement the approved plan, shall be cause for immediate revocation of the Permit. (4) Reimbursement of City Costs. If a Permit is revoked, the Permittee shall also reimburse the City for the City's reasonable costs, including Degradation Costs and the costs of collection and reasonable attorneys' fees incurred in connection with such revocation. Mapping Data. Each Registrant shall provide Mapping information required by the City in accordance with PUC Rules. At the request of any Registrant, any information requested by the City, which qualifies as a "trade-secret" under Minn. Stat. S 13.37(b) shall be treated as trade secret information as detailed therein. Location of Facilities. (1 ) Undergrounding. Unless othervvise permitted by law or an existing franchise, or unless an existing above-ground Facility is repaired or replaced, new construction and the installation of new Facilities and replacement of old Facilities shall be done underground or contained within buildings or other structures in conformity with applicable codes. 1 (2) Corridors. The City may assign specific corridors within the Right-of-Way, or any particular segment thereof as may be necessary, for each type of Facilities that is Of, pursuant to current technology, the City expects will someday be located within the Right-of-Way. All excavation, obstruction, or other permits issued by the City involving the installation or replacement of Facilities, shall designate the proper corridor for the Facilities at issue. (3) 701.719 Any Right-of-Way User with Facilities in a position at variance with the corridors established by the City shall, no later than at the time of the next reconstruction or excavation of the area where the Facilities are located, move the Facilities to the assigned position within the Right-of-Way, unless this requirement. is waived by the City for good cause shown, upon consideration of such factors as the remaining economic life of the Facilities, public safety, customer service needs and hardship to the Right-of- Way User. Nuisance. One year after the passage of this Section, any Facilities found in a Right-of-Way that have not been registered with the City shall be deemed to be a nuisance. The City may exercise any remedies or rights it has at law or in equity, including, but not limited to, abating the nuisance or taking possession of the Facilities and restoring the Right-of-Way to a useable condition. Any costs incurred by the City shall be considered an obligation of the owner of the Facility. (4) Limitation of Space. To protect health, safety, and welfare or when necessary to protect the Right-of-Way and its current use, the City shall have the power to prohibit or limit the placement of new or additional Facilities within the Right-of-Way. In making such decisions, the City shall strive to the extent possible to accommodate all existing and potential users of the Right-of-Way, but shall be guided primarily by considerations of the public interest, the public's needs for the particular Utility Service, the condition of the Right-of-Way, the time of year with respect to essential utilities, the protection of existing Facilities in the Right-of-Way, and future City plans for public improvements and development projects which have been determined to be in the public interest. Relocation of Facilities. A Right-of-Way User must promptly and at its own expense, with due regard for seasonal working conditions, permanently remove and relocate its Facilities in the Right-of-Way when it is necessary to prevent interference, and not merely for convenience of the City, in connection with: (1) a present or future City use of the Right-of-Way for a public project; (2) public health or safety; or (3) the safety and convenience of travel over the Right-of-Way. Notwithstanding the foregoing, a Right-of-Way User shall not be required to remove or relocate its Facilities from a Right-of-Way that has been vacated in favor of a non- governmental entity unless and until the reasonable costs thereof are first paid to the Right-of-Way User. I This subsection is optional and could be applied only within cel1ain specified districts of the City, i.e., the business district, or may be omitted entirely ifUndergrounding is not a priority objective of the community. 701.720 701.721 701.722 701.723 TI II Pre-Excavation Facility and Facilities Location. In addition to complying with the requirements of Minn. Stat. 99 2160.01-.09 ("One Call Excavation Notice System") before the start date of any Right-of-Way excavation, each Right-of-Way User that has Facilities or Equipment in the area to be excavated shall mark the horizontal and approximate vertical placement of all said Facilities. Any Right-of-Way User whose Facilities are less than twenty (20) inches below a concrete or asphalt surface shall notify and work closely with the excavation contractor to establish the exact location of its Facilities and the best procedure for excavation. Damage to Other Facilities. When the City does work in the Right-of-Way and finds it necessary to maintain, support, or move a Right-of-Way User's Facilities to protect it, the City shall notify the Local Representative as early as is reasonably possible. The costs associated therewith will be billed to that Right-of-Way User and must be paid within thirty (30) days from the date of billing. Each Right-of-Way User shall be responsible for the cost of repairing any damage to the Facilities of another Right-of- Way User caused during the City's response to an Emergency occasioned by that Right-of-Way User's Facilities. Right-of-Way Vacation. (1 ) Reservation of Right. If the City vacates a Right-of-Way which contains the Facilities of a Right-of-Way User, and if the vacation does not require the relocation of Right-of-Way User's or Permittee's Facilities, the City shall reserve, to and for itself and all Right-of- Way Users having Facilities in the vacated Right-of-Way, the right to install, maintain and operate any Facilities in the vacated Right-of-Way and to enter upon such Right-of- Way at any time for the purpose of reconstructing, inspecting, maintaining or repairing the same. (2) Relocation of Facilities. If the vacation requires the relocation of Right-of-Way User's or Permittee's Facilities; and (i) if the vacation proceedings are initiated by the Right-of- Way User or Permittee, the Right-of-Way User or Permittee must pay the relocation costs; or (ii) if the vacation pmceedings are initiated by the City, the Right-of-Way User or Permittee must pay the relocation costs unless otherwise agreed to by the City and the Right-of-Way user or Permittee; or (iii) if the vacation proceedings are initiated by a Person or Persons other than the Right-of-Way user or Permittee, such other Person or Persons must pay the relocation costs. Indemnification. As a condition for the use of a Permit issued by the City authorizing a Permittee to obstruct or excavate on or within a Right-of-Way for the installation, maintenance, or repair or Permittee's Facilities in a Right-of-Way, the Permittee shall defend, indemnify, and hold harmless the City from all liability or claims of liability for bodily injury or death to persons or property damage in which the claim: (1) allege a negligent or otherwise wrongful act or omission of the Permittee or its employee, agent or independent contractor in installing, maintaining, or repairing the Permittee's Facilities and alleges that the local government unit is liable, without alleging any independent negligent, or otherwise wrongful, act or omission on the part of the City; or (2) is based on the City's negligence or otherwise wrongful act or omission in issuing the Permit or in failing to properly or adequately inspect or enforce compliance with a term, condition, or purpose of the Permit granted to Permittee. Registrant or Permittee shall indemnify, keep, and hold the City free and harmless from any and all liability on account of injury to Persons or damage to property occasioned by the issuance of Permits or by the construction, maintenance, repair, inspection, or operation of Registrant's or Permittee's Facilities located in the Right-of-Way. A Permittee is not require to indemnify a local government unit for losses or claims occasioned by the negligent or otherwise wrongful act or omission of the local government unit, except: (a) to the extent authorized in clause (2) above regarding the issuance of a Permit or the inspection or enforcement of compliance with the Permit; (b) when otherwise provided in an applicable franchise agreement. 701.724 _Defense. A defense or indemnification of the City by a Permittee is deemed not be a waiver of any defense or immunity otherwise available to the City. A Permittee, in defending any action on behalf of the City, is entitled to assert every defense or immunity that the City could assert on its own behalf. If a suit is brought against the City under circumstances where the Registrant or Permittee is required to indemnify, the Registrant or Permittee, at its sole cost and expense, shall defend the City in the suit if written notice of the suit is promptly given to the Registrant or Permittee within a period in which the Registrant or Permittee is not prejudiced by the lack or delay of notice. If the Registrant or Permittee is required to indemnify and defend, it shall thereafter have control of the litigation, but the Registrant or Permittee may not settle the litigation without the consent of the City. Consent will not be unreasonably withheld. This part is not, as to third parties, a waiver of any defense, immunity, or damage limitation otherwise available to the City.}] 701.725 Abandoned Facilities. (1) Discontinued operations. A Right-of-Way User that has declared its Facility to be an Abandoned Facility must either: . Provide information satisfactory to the City that the Right-of-Way User's obligations for its Facilities under this Section have been lawfully assumed by another Right-of- Way User; or . Submit to the City a proposal and instruments for transferring ownership of its Facilities to the City. If a Right-of-Way User proceeds under this clause, the City may, at its option: + purchase the Facilities; or + require the Right-of-Way User, at its own expense, to remove it; or + require the Right-of-Way User to post a bond in an amount sufficient to reimburse the City for reasonably anticipated costs to be incurred in removing the Facilities. Abandoned Facilities. If a Right-of-Way User fails to comply with subsection (2) Abandoned Facilities., the City may exercise any remedies or rights it has at law or in equity, including, but not limited to, (i) abating the nuisance (ii) taking possession of the Facility and restoring it to a useable condition, or (iii) requiring removal of the Facility by the Right-of-Way User, or the Right-of-Way User's successor-in-interest. (3) 701.726 701.727 701.728 1I Removal. Any Registrant or Permittee who has an Abandoned Facility in any Right-of-Way shall remove it from that Right-of-Way during the next scheduled excavation, unless this requirement is waived by the City. Appeal. [Minn. Stat. 9237.163, subd. 5] A Telecommunications Right-of-Way user that: (1) has been denied registration; (2) has been denied a Right-of-Way Permit; (3) has had its Right-of-Way Permit revoked; or (4) believes that the fees imposed on it by the City do not conform to the requirements of Minn. Stat. S 237.163, subd. 6 may have the denial, revocation, or fee imposition reviewed, upon written request, by the City Council. The City Council shall act on a timely written request at its next regularly scheduled meeting. A decision by the City Council affirming the denial, revocation, or fee imposition will be in writing and supported by written findings establishing the reasonableness of the decision. Upon affirmation by the City Council of the denial, revocation, or fee imposition, the Right-of-Way User shall have the right to have the matter resolved by binding arbitration. Binding arbitration must be before an arbitrator agreed to by both the City Council and Right-of-Way User. If the parties cannot agree on an arbitrator, the matter must be resolved by a three-person arbitration panel made up of one arbitrator selected by the City, one arbitrator selected by the Right-of-Way user and one selected by the other two arbitrators. The costs and fees of single arbitrator shall be borne equally by the City and Right-of-Way user. In the event there is a third arbitrator, each party shall bear the expense of its own arbitrator and shall jointly and equally bear with the other party the expense of the third arbitrator and of the arbitration. Each party to the arbitration shall pay its own costs, disbursements, and attorney fees. Reservation of Regulatory and Police Powers. A Permittee's or Registrant's rights are subject to the regulatory and police powers of the City to adopt and enforce general ordinances necessary to protect the health, safety and welfare of the public. Severability. If any subsection, sentence, clause, phrase, or portion of this Section is for any reason held invalid or unconstitutional by any court or administrative agency of competent jurisdiction, such portion shall be deemed separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof. If a regulatory body or a court of competent jurisdiction should determine by a final, non- appealable order that any permit, right or registration issued under this Section or any portions of this Section illegal or unenforceable, then any such permit, right or registration granted or deemed to exist hereunder shall be considered as a revocable permit with a mutual right in either party to terminate without cause upon giving sixty (60) days written notice to the other. The requirements and conditions of such a revocable permit shall be the same requirements and conditions as set forth in the permit, right or registration, respectively, except for conditions relating to the term of the permit and the right of termination. Nothing in this Section precludes the City from reqUiring a franchise agreement with the Applicant, as allowed by law, in addition to requirements forth herein. " .,-'-~----.._,_.._----,----_._~--- -'-~- --~ -- - --- ~ THIS ORDINANCE SHALL TAKE EFFECT UPON ITS PASSAGE AND PUBLICATION. Passed by the City Council of the City of Prior Lake, Minnesota this 19th day of June, 2000. ATTEST: City Manager Mayor Published in the Prior Lake American on the 24th day of June, 2000. Drafted by: Halleland, Lewis, Nilan, Sipkins & Johnson 600 Pillsbury Center 220 South Sixth Street Minneapolis, MN 55402-4501 CITY OF PRIOR LAKE RIGHT-OF-WAY ORDINANCE City of Prior Lake, Scott County, Minnesota AN ORDINANCE AMENDING SECTION 701 OF THE PRIOR LAKE CITY CODE PROVIDING FOR THE ADMINISTRATION AND REGULATION OF PUBLIC RIGHTS-OF-WAY IN THE PUBLIC INTEREST , AND TO PROVIDE FOR THE ISSUANCE AND REGULATION OF RIGHT-OF-WAY PERMITS The City Council of the City of Prior Lake hereby ordains as follows: 1. Ordinance 00-01 of the Prior Lake City Council adopted on January 3, 2000 and published in the City's official newspaper on January 8, 2000, initiating a 120-day moratorium on the installation of any telecommunication facility in the public right-of-way, is hereby repealed. 2. The title of City Code Section 701 is hereby amended to read: Streets, Sidewalks, Public Ways and Public Rights-of-Way. 3. City Code Section 701 be further amended to add the following: 701.700: RIGHT-OF-WAY MANAGEMENT 701.701 Definitions: The definitions contained in Minnesota Statute ~ 237.162 and Public Utility Commission Rules ~ 7819 are hereby incorporated by reference. References hereafter to "subsections" are, unless otherwise specified, references to subsections in this Section. Defined terms remain defined terms whether or not capitalized. Applicant. Any Person requesting permission to excavate or obstruct a Right-of-Way. Emergency. A condition that (1) poses a clear and immediate danger to life or health, or of a significant loss of property; or (2) requires immediate repair or replacement of Facilities in order to restore Utility Service to a customer. Equipment. Any tangible asset used to install, repair, or maintain Facilities in any Right-of-Way. Excavation Permit. A Right-of-Way Permit that allows the Permittee to excavate that part of the Right-of-Way described in such permit. Local Representative. A local Person or Persons, or designee of such Person or Persons, authorized by a Registrant to accept service and to make decisions for that Registrant regarding all matters within the scope of this Section. Obstruction Permit. A Right-of-Way Permit that allows the Permittee to obstruct that part of the Right-of-Way described in such permit. 16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245 AN EQUAL OPPORTUNITY EMPLOYER 11 II Registrant. Any Person who (1) has or seeks to have its Equipment or Facilities located in any Right-of-Way, or (2) in any way occupies or uses, or seeks to occupy or use, the Right-of-Way or place its Facilities in the Right-of-Way. Supplementary Application. An application made to Excavate or Obstruct more of the Right-of-Way than allowed in, or to extend, a permit that had already been issued. 701.702 Registration and Right-of-Way Occupancy: (1) Registration: Each Person who occupies, uses, or seeks to occupy or use, the Right-of-Way or place any Equipment or Facilities in the Right-of-Way, including Persons with installation and maintenance responsibilities by lease, sublease or assignment, must register with the City. Registration will consist of completing an application on forms provided by the City and paying a registration fee to the City. (2) Registration Prior to Work. No Person may construct, install, repair, remove, relocate, or perform any other work on, or use any Facilities or any part thereof in any Right-of-Way without first being registered with the City. (3) Exceptions. Nothing herein shall be construed to repeal or amend the provisions of a City ordinance permitting Persons to plant or maintain boulevard plantings or gardens in the area of the Right-of-Way between their property and the street curb. Persons planting or maintaining boulevard plantings or gardens shall not be deemed to use or occupy the, Right-of-Way, and shall not be required to obtain any permits or satisfy any other requirements for planting or maintaining such boulevard plantings or gardens under this Section. However, nothing herein relieves a Person from complying with the provisions of the Minn. Stat. Chap. 2160, "One call" Law. 701.703 Registration Information: (1) Information Required. The information provided to the City at the time of registration shall include, but not be limited to: . Each Registrant's name, Gopher One-Call registration certificate number, address and e-mail address if applicable, and telephone and facsimile numbers. . The name, address and e-mail address, if applicable, and telephone and facsimile numbers of the Local Representative. The Local Representative or designee shall be available at all times. Current information regarding how to contact the Local Representative in an Emergency shall be provided at the time of registration. . A certificate of insurance or self-insurance: + Verifying that an insurance policy has been issued to the Registrant by an insurance company licensed to do business in the State of Minnesota, or a form of self-insurance acceptable to the City; + Verifying that the Registrant is insured against claims for personal injury, including death, as well as claims for property damage arising out of the (i) use and occupancy of the Right-of-Way by the Registrant, its officers, agents, employees and Permittees, and (ii) placement and use of Facilities in the Right-of-Way by the Registrant, its officers, agents, employees and Permittees, including, but not limited to, protection against liability arising 1I II from completed operations, damage of underground Facilities and collapse of property. + Naming the City as an additional insured as to whom the coverages required herein are in force and applicable and for whom defense will be provided as to all such coverages; + Requiring that the City be notified thirty (30) days in advance of cancellation of the policy or material modification of a coverage term; + Indicating comprehensive liability coverage, automobile liability coverage, workers compensation and umbrella coverage established by the City in amounts sufficient to protect the City and the public and to carry out the purposes and policies of this Section. (2) The City may require a copy of the actual insurance policies. If the Person is a corporation, a copy of the certificate required to be filed under Minn. Stat. ~ 300.06 as recorded and certified to by the Secretary of State. A copy of the Person's order granting a certificate of authority from the Minnesota Public Utilities Commission or other applicable state or federal agency, where the Person is lawfully required to have such certificate from said Commission or other state or federal agency. (3) Notice of Changes: The Registrant shall keep all of the information listed above current at all times by providing to the City information as to changes within fifteen (15) days following the date on which the, Registrant has knowledge of any change. 701.704 Permit Requirements: (1) Permit Required: Except as otherwise provided in this Code, no Person may obstruct or excavate any Right-of-Way without first obtaining the appropriate Obstruction Permit or Excavation Permit from the City. (2) Permit Extensions: No Person may excavate or obstruct the Right-of-Way beyond the date or dates specified in the permit unless such Person (i) makes a Supplementary Application before the expiration of the initial permit, and (ii) the Supplementary Application is granted. (3) Delay Penalty: Notwithstanding Permit Extensions, a delay penalty pursuant to Public Utility Commission Rule F819.1000 subp. 3 may be imposed. (4) Permit Display: Permits issued under this Section shall be conspicuously displayed or otherwise available at all times at the indicated work site and shall be available for inspection by the City. 701.705 Permit Applications: Application for a permit is made to the City. Right-of-Way Permit applications shall contain, and will be considered complete only upon compliance with the requirements of the following provisions: . Registration with the City pursuant to this Section; . Submission of a completed permit application form, including all required attachments, and scaled drawings showing the location and area of the proposed project and the location of all known existing and proposed Facilities. . Payment of money due the City for 11 II . Permit fees, estimated Degradation Costs and other Management Costs, . prior Obstructions or Excavations; . any undisputed loss, damage, or expense suffered by the City because of Applicant's prior excavations or Obstructions of the Rights-of-Way or any Emergency actions taken by the City; . franchise or user fees, if applicable. . Payment of disputed amounts due the City by posting security or depositing in an escrow account an amount equal to at least 110% of the amount owing. [Note: Pending adoption by PUC. No agreement with Industry.] . When an Excavation Permit is requested for purposes of installing additional Facilities, and the posting of a Construction Performance Bond for the additional Facilities is insufficient, the posting of an additional or larger Construction Performance Bond for the additional Facilities may be required. (1) Permit Issuance: If the Applicant has satisfied the requirements of this Section, the City shall issue a permit. (2) Conditions. The City may impose reasonable conditions upon the issuance of the permit and the performance of the Applicant thereunder to protect the health, safety and welfare or when necessary to protect the Right-of-Way and its current use. 701.706 Permit Fees. (1) Excavation Permit Fee. The City shall establish the excavation permit fee in an amount sufficient to recover the following costs: . Management Costs; and . Degradation Costs, if applicable. (2) Obstruction Permit Fee. The obstruction permit fee shall be established by the City and shall be in an amount sufficient to recover the City Management Costs. (3) Payment ot Permit Fees. No Right-of-Way Permit shall be issued before payment of excavation or obstruction permit fees. The City may allow Applicant to pay such fees within thirty (30) days of billing. (4) Non refundable. Permit fees that were paid for a permit that the City has revoked for a breach as stated in subsection 701.707 Restoration of Right-ot-Way: (1) Timing: The work to be done under the Excavation Permit, and the Patching and Restoration of the Right-of-Way as required herein, must be completed within the dates specified in the permit, increased by as many days as work could not be done because of extraordinary circumstances beyond the control of the Permittee or when work was prohibited as unseasonal or unreasonable under subsection (2) Prohibited Work. (3) Patch and Restoration. Permittee shall Patch its own work. The City may choose either to have the Permittee restore the Right-ot-Way or to restore the Right-ot-Way itself. 1I II 701.708 . City Restoration. If the City restores the Right-of-Way, Permittee shall pay the costs thereof within thirty (30) days of billing. If, during the thirty-six (36) months following such Restoration, the pavement settles due to Permittee's improper backfilling, the Permittee shall pay to the City, within thirty (30) days of billing, all costs associated with having to correct the defective work. . Permittee Restoration. If the Permittee Restores the Right-of-Way itself, it shall at the time of application for an Excavation Permit post a Construction Performance Bond in an amount determined by the City to be, sufficient to cover the, cost of Restoration. If, within thirty-six (36) months after completion of the Restoration of the Right-of-Way, the City determines that the Right-of-Way has been properly Restored, the surety on the Construction Performance Bond shall be released. (4) Restoration Standards. Restoration must return the Right-of-Way to the same condition that existed before excavation. Subject to this standard, plates 1 to 13, shown in Public Utility Commission Rules, parts 7819.9900 to 7819.9950, indicate maximum limits of restoration methods and area requirements the City can impose when a Right- of-Way User excavates in the public Right-of-Way. The City and Right-of-Way User may agree to a lesser requirement. The Right-of-Way User is responsible for all of its work done in the public Right-of-Way, whether by employees, agents, or independent contracts. (5) Failure to Restore: If the Right-of-Way User fails to Restore the Right-of-Way in the manner and to the condition required by the City, or fails to satisfactorily and timely complete all Restoration required by the City, the City at its option may do such work. In that event the Right-of-Way User shall pay to the City, within thirty (30) days of billing, the cost of restoring the Right-of-Way. If Permittee fails to pay as required, the City may exercise its rights under the Construction Performance Bond. (6) Degradation Fee. A Right-of-Way user may elect to pay a Degradation Fee. However, the Right-of-Way User shall remain responsible for replacing and compacting the subgrade base material in the excavation and the degradation fee must not include the cost to accomplish these activities. Joint Applications. Registrants may jointly apply for Excavation and/or Obstruction Permits at the same time. Registrants who join in a scheduled Obstruction or Excavation performed by the City, whether or not it is a joint application by two or more Registrants or a single application, are not required to pay the Obstruction and Degradation portions of the permit fee. Registrants who apply for permits for the same Obstruction or Excavation, which the City does not perform, may share in the payment of the Obstruction or Excavation Permit Fee Registrants must agree among themselves as to the portion each will pay and indicate the, same on their applications. II II 701.709 (1 ) (2) 701.710 (1 ) 701.711 701.712 1I II Supplementary Applications. Limitation on Area: A Right-of-Way Permit is valid only for the area of the Right-of-Way specified in the permit. No Permittee may do any work outside the area specified in the permit. Any Permittee which determines that an area greater than that specified in the permit must be Obstructed or Excavated must, before working in that greater area, (i) submit a Supplemental Application and pay any additional fees required therein, and (ii) obtain approval of the Supplemental Application. Limitation on Dates: A Right-of-Way Permit is valid only for the dates specified in the permit. No Permittee may begin its work before the permit start date or, except as provided herein, continue working after the end date. If a Permittee does not finish the work by the permit end date, it must (i) submit a Supplemental Application and pay any additional fees required therein, and (ii) obtain approval of the Supplemental Application. Other Obligations. Compliance With Other Laws. Obtaining a Right-of-Way Permit does not relieve Permittee of its duty to obtain all other necessary permits, licenses, and authority and to pay all fees required by the City or other applicable rule, law or regulation. A Permittee shall comply with all requirements of local, state and federal laws, including Minn. Stat. 99 2160.01-.09 ("One Call Excavation Notice System"). A Permittee shall perform all work in conformance with all applicable codes and established rules and regulations, and is responsible for all work done in the Right-of-Way pursuant to its permit, regardless of who does the work. (2) Prohibited Work. Except in an Emergency, and with the approval of the City, no Right-of-Way Obstruction or Excavation may be done when seasonally prohibited or when conditions are unreasonable for such work. (3) Interference with Right-ot-Way. A Permittee shall not so obstruct a Right-of-Way so that the natural free and clear passage of water through the gutters or other waterways shall be interfered. Private vehicles of those doing work in the Right-of-Way may not be parked within or next to a permit area, unless parked in conformance with City parking regulations. The loading or unloading of trucks must be done solely within the defined permit area unless specifically authorized by the permit. Denial ot Permit: The City may deny a permit for failure to meet the requirements and conditions of this Section or if the City determines that the denial is necessary to protect the health, safety, and welfare or when necessary to protect the Right-of-Way and its current use. Installation Requirements. The Excavation, backfilling, Patching and Restoration, and all other work performed in the Right-of-Way shall be done in conformance with Engineering Standards adopted by the PUC or other applicable local requirements, in so far as they are not inconsistent with the PUC Rules. [Note: Standards awaiting adoption by PUC. General agreement with Industry.] 701.713 (1 ) (2) (3) 701.714 701.715 II II Inspection. Notice of Completion. When the work under any permit issued hereunder is completed, the Permittee shall furnish a Completion Certificate in accordance PUC Rules. [Pending adoption by PUC. Agreement with Industry.] Site Inspection. Permittee shall make the work-site available to the City and to all others as authorized by law for inspection at all reasonable times during the execution of and upon completion of the work. Authority of City. At the time of inspection the City may order the immediate cessation of any work which poses a serious threat to the life, health, safety or well-being of the public. The City may issue an order to the Permittee for any work which does not conform to the terms of the permit or other applicable standards, conditions, or codes. The order shall state that failure to correct the violation will be cause for revocation of the permit. Within ten (10) days after issuance of the order, the Permittee shall present proof to the City that the violation has been corrected. If such proof has not been presented within the required time, the City may revoke the permit pursuant to subsection Work Done Without a Permit. (1 ) Emergency Situations. Each Right-of-Way User shall immediately notify the City of any event regarding its Facilities which it considers to be an Emergency. The Right-of- Way User may proceed to take whatever actions are necessary to respond to the Emergency. Within two business days after the occurrence of the Emergency the Right- of-Way User shall apply for the necessary permits, pay the fees associated therewith and fulfill the rest of the requirements necessary to bring itself into compliance with this Section for the actions it took in response to the Emergency. If the City becomes aware of an Emergency regarding a Right-of-Way User's Facilities, the City will attempt to contact the Local Representative of each Right-of-Way User affected, or potentially affected, by the Emergency. In any event, the City may take whatever action it deems necessary to respond to the Emergency, the cost of which shall be borne by the Right-of-Way User whose Facilities occasioned the Emergency. (2) Non-Emergency Situations. Except in an Emergency, any Person who, without first having obtained the necessary permit, Obstructs or Excavates a Right-of-Way must subsequently obtain a permit, and as a penalty pay double the normal fee for said permit pay double all the other fees required by the Legislative Code, deposit with the City the fees necessary to correct any damage to the Right-of-Way and comply with all of the requirements of this Section. Supplementary Notification. If the Obstruction or Excavation of the Right-of-Way begins later or ends sooner than the date given on the permit, Permittee shall notify the City of the accurate information as soon as this information is known. 701.716 (1 ) (2) 701.717 701.718 n Revocation of Permits. Substantial Breach. The City reserves its right, as provided herein, to revoke any Right-of-Way Permit, without a fee refund, if there is a substantial breach of the terms and conditions of any statute, ordinance, rule or regulation, or any material condition of the permit. A substantial breach by Permittee shall include, but shall not be limited to, the following: . The violation of any material provision of the Right-of-Way Permit; . An evasion or attempt to evade any material provision of the Right-of-Way Permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the City or its citizens; . Any material misrepresentation of fact in the application for a Right-of-Way Permit; . The failure to complete the work in a timely manner; unless a permit extension is obtained or unless the failure to complete work is due to reasons beyond the Permittee's control; or The failure to correct, in a timely manner, work that does not conform to a condition indicated on an order issued pursuant to subsection Written Notice of Breach. If the City determines that the Permittee has committed a substantial breach of a term or condition of any statute, ordinance, rule, regulation or any condition of the permit the City shall make a written demand upon the Permittee to remedy such violation. The demand shall state that continued violations may be cause for revocation of the permit. A substantial breach, as stated above, will allow the City, at his or her discretion, to place additional or revised conditions on the permit to mitigate and remedy the breach. (3) Response to Notice of Breach. Within twenty-four (24) hours of receiving notification of the breach, Permittee shall provide the City with a plan, acceptable to the City, that will cure the breach. Permittee's failure to so contact the City, or the Permittee's failure to submit an acceptable plan, or Permittee's failure to reasonably implement the approved plan, shall be cause for immediate revocation of the Permit. (4) Reimbursement of City Costs. If a Permit is revoked, the Permittee shall also reimburse the City for the City's reasonable costs, including Degradation Costs and the costs of collection and reasonable attorneys' fees incurred in connection with such revocation. Mapping Data. Each Registrant shall provide Mapping information required by the City in accordance with PUC Rules. At the request of any Registrant, any information requested by the City, which qualifies as a "trade-secret" under Minn. Stat. S 13.37(b) shall be treated as trade secret information as detailed therein. Location of Facilities. (1 ) Undergrounding. Unless otherwise permitted by law or an existing franchise, or unless an existing above-ground Facility is repaired or replaced, new construction and the II installation of new Facilities and replacement of old Facilities shall be done underground or contained within buildings or other structures in conformity with applicable codes.! (2) Corridors. The City may assign specific corridors within the Right-of-Way, or any particular segment thereof as may be necessary, for each type of Facilities that is or, pursuant to current technology, the City expects will someday be located within the Right-of-Way. All excavation, obstruction, or other permits issued by the City involving the installation or replacement of Facilities, shall designate the proper corridor for the Facilities at issue. (3) 701.719 Any Right-of-Way User with Facilities in a position at variance with the corridors established by the City shall, no later than at the time of the next reconstruction or excavation of the area where the Facilities are located, move the Facilities to the assigned position within the Right-of-Way, unless this requirement. is waived by the City for good cause shown, upon consideration of such factors as the remaining economic life of the Facilities, public safety, customer service needs and hardship to the Right-of- Way User. Nuisance. One year after the passage of this Section, any Facilities found in a Right-of-Way that have not been registered with the City shall be deemed to be a nuisance. The City may exercise any remedies or rights it has at law or in equity, including, but not limited to, abating the nuisance or taking possession of the Facilities and restoring the Right-of-Way to a useable condition. Any costs incurred by the City shall be considered an obligation of the owner of the Facility. (4) Limitation of Space. To protect health, safety, and welfare or when necessary to protect the Right-of-Way and its current use, the City shall have the power to prohibit or limit the placement of new or additional Facilities within the Right-of-Way. In making such decisions, the City shall strive to the extent possible to accommodate all existing and potential users of the Right-of-Way, but shall be guided primarily by considerations of the public interest, the public's needs for the particular Utility Service, the condition of the Right-of-Way, the time of year with respect to essential utilities, the protection of existing Facilities in the Right-of-Way, and future City plans for public improvements and development projects which have been determined to be in the public interest. Relocation of Facilities. A Right-of-Way User must promptly and at its own expense, with due regard for seasonal working conditions, permanently remove and relocate its Facilities in the Right-of-Way when it is necessary to prevent interference, and not merely for convenience of the City, in connection with: (1) a present or future City use of the Right-of-Way for a public project; (2) public health or safety; or (3) the safety and convenience of travel over the Right-of-Way. Notwithstanding the foregoing, a Right-of-Way User shall not be required to remove or relocate its Facilities from a Right-of-Way that has been vacated in favor of a non- governmental entity unless and until the reasonable costs thereof are first paid to the Right-of-Way User. I This subsection is optional and could be applied only within certain specified districts of the City, i.e., the business district, or may be omitted entirely ifUndergrounding is not a priority objective of the community. II II 701.720 701.721 701.722 (1 ) (2) 701.723 11 II Pre-Excavation Facility and Facilities Location. In addition to complying with the requirements of Minn. Stat. SS 2160.01-.09 ("One Call Excavation Notice System") before the start date of any Right-of-Way excavation, each Right-of-Way User that has Facilities or Equipment in the area to be excavated shall mark the horizontal and approximate vertical placement of all said Facilities. Any Right-of-Way User whose Facilities are less than twenty (20) inches below a concrete or asphalt surface shall notify and work closely with the excavation contractor to establish the exact location of its Facilities and the best procedure for excavation. Damage to Other Facilities. When the City does work in the Right-of-Way and finds it necessary to maintain, support, or move a Right-of-Way User's Facilities to protect it, the City shall notify the Local Representative as early as is reasonably possible. The costs associated therewith will be billed to that Right-of-Way User and must be paid within thirty (30) days from the date of billing. Each Right-of-Way User shall be responsible for the cost of repairing any damage to the Facilities of another Right-of- Way User caused during the City's response to an Emergency occasioned by that Right-of-Way User's Facilities. Right-of-Way Vacation. Reservation of Right. If the City vacates a Right-of-Way which contains the Facilities of a Right-ot-Way User, and it the vacation does not require the relocation ot Right-ot-Way User's or Permittee's Facilities, the City shall reserve, to and for itself and all Right-ot- Way Users having Facilities in the vacated Right-ot-Way, the right to install, maintain and operate any Facilities in the vacated Right-of-Way and to enter upon such Right-of- Way at any time for the purpose of reconstructing, inspecting, maintaining or repairing the same. Relocation of Facilities. If the vacation requires the relocation of Right-of-Way User's or Permittee's Facilities; and (i) if the vacation proceedings are initiated by the Right-of- Way User or Permittee, the Right-of-Way User or Permittee must pay the relocation costs; or (ii) it the vacation proceedings are initiated by the City, the Right-of-Way User or Permittee must pay the relocation costs unless otherwise agreed to by the City and the Right-ot-Way user or Permittee; or (Hi) if the vacation proceedings are initiated by a Person or Persons other than the Right-of-Way user or Permittee, such other Person or Persons must pay the relocation costs. Indemnification. As a condition tor the use ot a Permit issued by the City authorizing a Permittee to obstruct or excavate on or within a Right-ot-Way for the installation, maintenance, or repair or Permittee's Facilities in a Right-of-Way, the Permittee shall defend, indemnify, and hold harmless the City from all liability or claims of liability for bodily injury or death to persons or property damage in which the claim: (1) allege a negligent or otherwise wrongtul act or omission of the Permittee or its employee, agent or independent contractor in installing, maintaining, or repairing the Permittee's Facilities and alleges that the local government unit is liable, without alleging any independent negligent, or otherwise wrongful, act or omission on the part of the City; or (2) is based on the City's negligence or otherwise wrongful act or omission in issuing the Permit or in tailing to properly or adequately inspect or enforce compliance with a term, condition, or purpose of the Permit granted to Permittee. Registrant or Permittee shall indemnify, keep, and hold the City free and harmless from any and all liability on account of injury to Persons or damage to property occasioned by the issuance of Permits or by the construction, maintenance, repair, inspection, or operation of Registrant's or Permittee's Facilities located in the Right-of-Way. A Permittee is not require to indemnify a local government unit for losses or claims occasioned by the negligent or otherwise wrongful act or omission of the local government unit, except: (a) to the extent authorized in clause (2) above regarding the issuance of a Permit or the inspection or enforcement of compliance with the Permit; (b) when otherwise provided in an applicable franchise agreement. 701.724 _Defense. A defense or indemnification of the City by a Permittee is deemed not be a waiver of any defense or immunity otherwise available to the City. A Permittee, in defending any action on behalf of the City, is entitled to assert every defense or immunity that the City could assert on its own behalf. If a suit is brought against the City under circumstances where the Registrant or Permittee is required to indemnify, the Registrant or Permittee, at its sole cost and expense, shall defend the City in the suit if written notice of the suit is promptly given to the Registrant or Permittee within a period in which the Registrant or Permittee is not prejudiced by the lack or delay of notice. If the Registrant or Permittee is required to indemnify and defend, it shall thereafter have control of the litigation, but the Registrant or Permittee may not settle the litigation without the consent of the City. Consent will not be unreasonably withheld. This part is not, as to third parties, a waiver of any defense, immunity, or damage limitation otherwise available to the City.}] 701.725 Abandoned Facilities. (1) Discontinued operations. A Right-of-Way User that has declared its Facility to be an Abandoned Facility must either: · Provide information satisfactory to the City that the Right-of-Way User's obligations for its Facilities under this Section have been lawfully assumed by another Right-of- Way User; or · Submit to the City a proposal and instruments for transferring ownership of its Facilities to the City. If a Right-of-Way User proceeds under this clause, the City may, at its option: + purchase the Facilities; or + require the Right-of-Way User, at its own expense, to remove it; or + require the Right-of-Way User to post a bond in an amount sufficient to reimburse the City for reasonably anticipated costs to be incurred in removing the Facilities. Abandoned Facilities. If a Right-of-Way User fails to comply with subsection (2) Abandoned Facilities., the City may exercise any remedies or rights it has at law or in equity, including, but not limited to, (i) abating the nuisance (ii) taking possession of the Facility and restoring it to a useable condition, or (iii) requiring removal of the Facility by the Right-of-Way User, or the Right-of-Way User's successor-in-interest. I II (3) 701.726 701.727 701.728 I II Removal. Any Registrant or Permittee who has an Abandoned Facility in any Right-of-Way shall remove it from that Right-of-Way during the next scheduled excavation, unless this requirement is waived by the City. Appeal. [Minn. Stat. 9237.163, subd. 5] A Telecommunications Right-of-Way user that: (1) has been denied registration; (2) has been denied a Right-of-Way Permit; (3) has had its Right-of-Way Permit revoked; or (4) believes that the fees imposed on it by the City do not conform to the requirements of Minn. Stat. 9237.163, subd. 6 may have the denial, revocation, or fee imposition reviewed, upon written request, by the City Council. The City Council shall act on a timely written request at its next regularly scheduled meeting. A decision by the City Council affirming the denial, revocation, or fee imposition will be in writing and supported by written findings establishing the reasonableness of the decision. Upon affirmation by the City Council of the denial, revocation, or fee imposition, the Right-of-Way User shall have the right to have the matter resolved by binding arbitration. Binding arbitration must be before an arbitrator agreed to by both the City Council and Right-of-Way User. If the parties cannot agree on an arbitrator, the matter must be resolved by a three-person arbitration panel made up of one arbitrator selected by the City, one arbitrator selected by the Right-of-Way user and one selected by the other two arbitrators. The costs and fees of single arbitrator shall be borne equally by the City and Right-of-Way user. In the event there is a third arbitrator, each party shall bear the expense of its own arbitrator and shall jointly and equally bear with the other party the expense of the third arbitrator and of the arbitration. Each party to the arbitration shall pay its own costs, disbursements, and attorney fees. Reservation of Regulatory and Police Powers. A Permittee's or Registrant's rights are subject to the regulatory and police powers of the City to adopt and enforce general ordinances necessary to protect the health, safety and welfare of the public. Severability. If any subsection, sentence, clause, phrase, or portion of this Section is for any reason held invalid or unconstitutional by any court or administrative agency of competent jurisdiction, such portion shall be deemed separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof. If a regulatory body or a court of competent jurisdiction should determine by a final, non- appealable order that any permit, right or registration issued under this Section or any portions of this Section illegal or unenforceable, then any such permit, right or registration granted or deemed to exist hereunder shall be considered as a revocable permit with a mutual right in either party to terminate without cause upon giving sixty (60) days written notice to the other. The requirements and conditions of such a revocable permit shall be the same requirements and conditions as set forth in the permit, right or registration, respectively, except for conditions relating to the term of the permit and the right of termination. Nothing in this Section precludes the City from requiring a franchise agreement with the Applicant, as allowed by law, in addition to requirements forth herein. THIS ORDINANCE SHALL TAKE EFFECT UPON ITS PASSAGE AND PUBLICATION. Passed by the City Council of the City of Prior Lake, Minnesota this 19th day of June, 2000. ATTEST: City Manager Mayor Published in the Prior Lake American on the 24th day of June, 2000. Drafted by: Halleland, Lewis, Nilan, Sipkins & Johnson 600 Pillsbury Center 220 South Sixth Street Minneapolis, MN 55402-4501 II II