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HomeMy WebLinkAbout2001-02 02-26 CCOCITY OF BROOKLYN CENTER ORDINANCE NO. 2001 -02 Section 1. Section 25 -1001 is hereby amended as follows: Notice is hereby given that a public hearing will be held on the 26 day of February, 2001, at 7 p.m. or as soon thereafter as the matter may be heard at the City Hall, 6301 Shingle Creek Parkway, to consider an ordinance amending Chapter 25 of the Brooklyn Center Ordinances relating to management of the right of way. Auxiliary aids for persons with disabilities are available upon request at least 96 hours in advance. Please contact the City Clerk at 763 -569 -3300 to make arrangements. AN ORDINANCE AMENDING CHAPTER 25 OF THE BROOKLYN CENTER ORDINANCES REGARDING MANAGEMENT OF RIGHT OF WAY THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER DOES ORDAIN AS FOLLOWS: Section 25-1001. DEFINITIONS. The following definitions apply to the Right -of- Way Management Ordinance of this Code. Unless used in a context which indicates otherwise, defined terms remain defined terms whether or not capitalized. a. "Applicant" means any person requesting permission to excavate or obstruct a right -of -way. "City" means the City of Brooklyn Center, Minnesota. For purposes of Section 25 -1026, city includes its elected officials, officers, employees and agents. c. "City Cost" means the actual cost incurred by the City for public rights -of -way management; including but not limited to costs associated with registering applicants; issuing, processing, and verifying right -of -way permit applications; creating information and maintaining information on a geographical information system (GIS) mapping system; degradation costs; inspecting job sites and restoration projects; maintaining, supporting, protecting, or moving user equipment facilities during public right -of -way work; providing traffic control due to applicant's neglect or inadequate performance; determining the adequacy of right -of -way restoration; restoring work inadequately performed; and revoking right -of -way permits and performing all other tasks required by this Right of Way Management Ordinance, including other costs the city may incur in managing the provisions of this Right of Way Management Ordinance. d. "Construction Performance Bond" means any of the following forms of security provided at the permittee's option: ORDINANCE NO. 2001 -02 e. "Degradation" means a decrease in the useful life of the right -of -way caused by excavation in or disturbance of the right -of -way, resulting in the need to reconstruct such right -of -way earlier than would be required if the excavation or disturbance did not occur. f. "Degradation cost" means the cost to achieve a level of restoration as determined by the city at the time the permit is issued, not to exceed the maximum restoration shown in plates 1 to 13, set forth in Minnesota Rules 7819.9900 to 7819.9950. "Delay Penalty" means the penalty imposed as a result of unreasonable delays in right-of-way construction. eh. "Department" means the Department of Public Works of the City. fi. "Department Inspector" means any person authorized by the Director to carry out inspections related to the provisions of this Right of Way Management Ordinance. "Director means the City Manager, or her or his designee. gj. hk. "Emergency" means 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 in order to restore service to a customer. }l "Equipment" means any tangible asset used to install, repair, or maintain facilities in any right -of -way. km. 1. Individual project bond; 2. Cash deposit; 3. Security of a form listed or approved under Minn. Stat., 15.73, subdivision 3; 4. Letter of credit, in a form acceptable to the Director; 5. Self insurance, in a form acceptable to the Director; 6. A blanket bond for projects within the City, or 7. Other forms of a construction bond, for a time specified and in a form acceptable to the Director. "Excavate" means to dig into or in any way remove or physically disturb or penetrate any part of a right -of -way, except horticultural practices of penetrating the boulevard area to a depth of less than 12 inches. kn. "Excavation Permit" means the permit which must be obtained before a person may excavate in a right -of -way. An excavation permit allows the holder to excavate that part of the right of way described in such permit. lo. "Excavation Permit Fee" means money paid to the City by an applicant to cover the costs as provided in Section 25 -1009. ORDINANCE NO. 2001 -02 mp. "Facility" or "Facilities" means any tangible asset in the right -of -way required to provide Utility Service, but shall not include boulevard plantings or gardens planted or maintained in the right of way between a person's property and the street edge or curb. tag. "In," when used in conjunction with "right -of- way," means over, above, in, within, on or under a right -of -way. or. "Local Representative" means 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 Right -of- Way Management Ordinance. ps. "Obstruct" means to place any object in a right -of -way so as to hinder free and open passage over that or any part of the right -of -way. qt. "Obstruction Permit" means the permit which must be obtained before a person may obstruct a right -of -way, allowing the holder to hinder free and open passage over the specified portion of that right -of -way by placing equipment facilities described therein on the right -of -way for the duration specified therein. ru. "Obstruction Permit Fee" means money paid to the City by a registrant to cover the costs as provided in Section 25 -1009. sv. "Permittee" means any person to whom a permit to excavate or obstruct a right -of -way has been granted by the City under this Right of Way Management Ordinance. tw. "Person" means any natural or corporate person, business association or other business entity including, but not limited to, a partnership, a sole proprietorship, a political subdivision, a public or private agency of any kind, a utility, a successor or assign of any of the foregoing, or any other legal entity which has or seeks to have equipment-facilities in any right -of -way. ux. "Registrant" means any person who (1) has or seeks to have its equipment 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 any equipment-facilities in the right -of -way. vY. "Repair" means the temporary construction work necessary to make the right -of- way useable for travel. w. Restoration Bond" means a performanoe lid, a letter of credit, cash deposit, or other form of security posted to ensure the availability of sufficient funds to assure that right of -way excavation and obstruction work is completed in both a timely and quality manner. ORDINANCE NO. 2001 -02 xz. "Restore or Restoration" means the process by which an excavated right -of -way and surrounding area, including pavement and foundation, is returned to the same condition that existed before the commencement of the work. yaa. "Restoration Cost" means an amount of money paid to the City by a permittee to cover the cost of restoration. zbb. "Right -of -Way" means the surface and space above and below a right -of -way for public roadway, highway, street, cartway, bicycle lane and public sidewalk purposes in which the City has an interest, including other dedicated rights -of -way for travel purposes and utility easements of the city. aacc. "Right -of -Way Management Ordinance" means Sections 25 -1000 through 25 -1032 of this Code. bbdd. "Right-of-Way Permit means either the excavation permit or the obstruction permit, or both, depending on the context, required by this Right -of- Way Management Ordinance. ee. Right -of -Way User" means: 1. A telecommunications right -of -way user as defined by Minn. Stat. 237.162, subdivision 4; or 2. A person owning or controlling a facility in the public right -of -way that is used or is intended to be used for providing utility service, and who has a right under law, franchise, or ordinance to use the public right -of -way. 66ff. "Service" or "Utility Service" includes but is not limited to (1) those services provided by a public utility as defined in Minnesota Statutes 216B.02, Subdivisions 4 and 6; (2) telecommunications, pipeline, community antenna television, fire and alarm communications, water, electricity, light, heat, cooling energy, or power services; (3) the services provided by a corporation organized for the purposes set forth in Minnesota Statutes 300.03; (4) the services provided by a district heating or cooling system, and (5) cable communications systems as defined in Minnesota Statutes Chapter 238. ddgg. "Supplementary Application" means an application made to excavate or obstruct more of the right -of -way than allowed in, or to extend, a permit that has already been issued. ORDINANCE NO. 2001 -02 public right of way, that is used or is intended to be used for transporting of Way Management Ordinance, a cable communication system defined and related to providing natural gas or electric -energy services are not f hh. "Unusable Equipment Facilities" means equipment facilities in the right -of -way which has remained unused for one year and for which the registrant is unable to provide proof that it has either a plan to begin using it within the next twelve (12) months or a potential purchaser or user of the equipment facilities. Section 2. Section 25 -1003 is hereby amended as follows: Subdivision 3. Exceptions. i. Use by private landowners of utility easement areas for Facilities that are not inconsistent with the rights of parties entitled to use the easement. Section 3. Section 25 -1006 is hereby amended as follows: Subdivision 1. Permit Required. c. Exceptions. A permit shall not be required for: f. Use by private landowners of utility easement areas for Facilities that are not inconsistent with the rights of parties entitled to use the easement. Subdivision 2. Permit Extensions. No person may excavate or obstruct the right of way beyond the date or dates specked in the permit unless such person (i) makes a tion for another right of way permit before the-expiration of the initial work in or obstruct the right -of- way beyond the date specified in the permit or do any work beyond that specified in the permit unless such person makes a supplementary application for an extension or modification of the work specified in the permit before expiration of the permit, pays a permit extension fee and is granted a permit extension by the Director. The Director may extend the completion or scope of the work if the specified work could not be done because of circumstances beyond the control of the permit holder. Section 4. Section 25 -1007 is hereby amended as follows: Section 25 -1007. PERMIT APPLICATIONS. Application for a permit is made to the Director. Right -of -way permit applications shall contain, and will be considered complete only upon compliance with the requirements of the following provisions: a. Registration with the Director pursuant to this Chapter; ORDINANCE NO. 2001 -02 b. Submission of a completed permit application form, including all required attachments, and scaled drawings showing the specific location and area of the proposed project and the detailed location of all existing and proposed equipment facilities; c. Payment of all money due to the City for 1. permit fees and costs, and any required deposit, d. When an excavation permit is requested for purposes of installing additional equipment facilities, and the posting of a restoration construction performance bond for the additional equipment facilities is insufficient, the posting of an additional or larger restoration construction performance bond for the additional equipment facilities may be required. Section 5. Section 25 -1008 is hereby amended as follows: Subdivision 3. Standards for Construction or Installation. The requirements and standards for facility construction or installation are contained in the General Requirements as specified by the Director. The Director may assign or prohibit specific locations for facilities within the right -of -way, or any particular segment thereof. All excavation, obstruction, or other permits issued by the Director involving the installation or replacement of facilities shall designate the proper location for the facility at issue. The Director may deny a permit application, as provided in Section 25 1014, in the event the proposed location of such facilities is not consistent with the location required by the Director. The Director may revoke a permit, as provided in Section 25 1019, in the event the facilities are installed in a location that is inconsistent with the location designated in the applicable permit. Any registrant whose facilities were previously located in the right -of -way in a position at variance with the locations established by the Director shall, no later than at the time of the next reconstruction or excavation of the area where its facilities are located, move that facility to its assigned position within the right -of -way, unless this requirement is waived by the Director 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 registrant. Section 6. Section 25 -1009 is hereby amended as follows: Subdivision 3. Deposit. The Director may require that a permit application be accompanied by a deposit, in addition to the Permit Fee and Construction Performance Bond, in an amount established by the Director in order to offset any City costs that exceed the amount covered by the Permit Fee. Such additional City costs may include, but are not limited to, inspection costs for consultants or independent contractors, legal fees, and other out of pocket expenses, degradation costs, or restoration costs. The permit fee will cover City staff time spent in the administration of the permit process and in inspection activities. ORDINANCE NO. 2001 -02 The Director may require an applicant to submit a single deposit in an amount intended to cover all City costs which the Director determines may be incurred during the subsequent twelve (12) month period based on an applicant's construction and major maintenance plan filed in accordance with Section 25 -1005. The Director shall approve all expenses charged against the deposit, and the unused portion thereof shall be returned to the applicant. The Director may periodically require that the deposit amount be replenished as expenses are charged against the deposit. The permit application shall further state that the applicant agrees to reimburse the City for any City costs incurred by the City in excess of the amount of the deposit. Subdivision 34. Payment of Permit Fees. No excavation permit or obstruction permit shall be issued without payment of such fees before the issuance of such a permit. Subdivision 45. Non refundable. Permit fees that were paid for a permit that the Director has revoked for a breach as stated in Section 25 -1019 are not refundable. Subdivision 56. Use of Permit Fees. All obstruction and excavation permit fees shall be used solely for city management, construction, maintenance and repair costs of the right -of -way. Section 7. Section 25 -1010 is hereby amended as follows: Subdivision 2. Repair and Restoration. Permittee shall repair and restore its own work. The permittee shall at the time of application for an excavation permit post a restoration construction performance bond in an amount determined by the Director to be sufficient to cover the cost of restoring the right -of -way to its pre excavation condition. If, twelve (12) months after completion of the restoration of the right -of -way, the Director determines that the right -of -way has been properly restored, the surety on the restoration construction performance bond shall be released. Permittees with whom the City has a current franchise agreement, or authorized agents, contractors, or subcontractors of that franchise shall not be required to post a restoration construction performance bond. Subdivision 4. Guarantees. By choosing to restore the right of way itself, tThe permittee guarantees its work and shall maintain it for twelve (12) months following its completion. During this 12 -month period it shall, upon notification from the Director, correct all restoration work to the extent necessary, using the method required by the Director. Said work shall be completed within five (5) calendar days of the receipt of the notice from the Director, not including days during which work cannot be done because of circumstances constituting force majeure or days when work is prohibited as unseasonal or unreasonable under Section 25 -1013. ORDINANCE NO. 2001 -02 Subdivision 5. Failure to Restore. If the Permittee fails to restore the right -of -way in the manner and to the condition required by the Director, or fails to satisfactorily and timely complete all restoration required by the Director, the Director at its option may do such work. In that event the permittee 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 restoration construction performance bond. Section 8. Section 25 -1012 is hereby amended as follows: Subdivision 1. Limitation on Area. A right -of -way permit is valid only for the area of the right -of -way specified in the permit, which shall not exceed one (1) lineal mile of right of -way. No permittee may do any work outside the area specified in the permit, except as provided herein. 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) make application for a permit extension and pay any additional fees required thereby, and (ii) be granted a new permit or permit extension. The total area for which a permittee shall be permitted at any one time, pursuant to multiple permits or permit extensions, shall not exceed three (3) lineal miles of right -of -way. Section 9. Section 25 -1014 is hereby amended as follows: Section 25 -1014. DENIAL OF PERMIT. The Director may deny a permit for failure to meet the requirements and conditions of this Right -of -Way EnanagementManagement Ordinance-0E if the Director determines that denial is necessary to protect the public health, safety and welfare, to prevent interference with the safety and convenience of ordinary travel over the right -of -way, health, safety, and welfare or when necessary to protect the Right right -of -way and its current use. The Director, in his/her discretion, may consider factors including: a. the extent to which right -of -way space where the permit is sought is available; b. the competing demands for the particular space in the right -of -way; c. the availability of other locations in the right -of -way or in other rights -of -way for the equipment of the permit applicant; d. the applicability of ordinance or other regulations of the right -of -way that affect location of equipment in the right -of -way; e. the degree of compliance of the applicant with the terms and conditions of its franchise, this Right -of -Way Management Ordinance, and other applicable ordinances and regulations; f. the degree of disruption to surrounding communities and businesses that will result from the use of that part of the right -of -way; ORDINANCE NO. 2001 -02 g the condition and age of the right -of -way, and whether and when it is scheduled for total or partial reconstruction; and h. the balancing of the costs of disruption to the public and damage to the right of -way, against the benefits to that part of the public served by the expansion into additional parts of the right -of -way. i If, in the discretion of the Director, the issuance of a permit for the particular date and/or time would cause a conflict or interfere with an exhibition, celebration, festival, or any other event. Section 10. Section 25 -1017 is hereby amended as follows: Subdivision 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, pay double the normal fee for said permit, pay double all other fees required by this Code of Ordinance, deposit with the Director the fees necessary to correct any damage to the right -of -way and comply with all of the requirements of this Right of -Way Management Ordinance. Section 11. Section 25 -1021 is hereby amended as follows: Section 25 -1021. LOCATION OF EQUIPMENT FACILITIES. Subdivision 1. Undergrounding. Unless otherwise permitted by an existing franchise er—Minnesota Statutes, Section, 216B.36, er- -unless existing above ground equipment is new construction, the installation of new equipment facilities and the replacement of old equipment facilities shall be done underground or contained within buildings or other structures in conformity with applicable codes, except that the Director may approve above ground location and installation that the Director has determined cannot reasonably be placed underground due to expense, nature, or function if there are no unreasonable safety, maintenance, or aesthetic concerns or conflicts with the current use of the right -of -way, unless for technical reasons-approved by the Director Section 12. Section 25 -1032 is hereby amended as follows: Section 25- 1032. WAIVER. The Director may waive any or all requirements of Sections 25 -1003 through 25- 1005, 25 -1006 through 25 -1009, and 25 -1020 if compliance is not deemed to be reasonably necessary, in the discretion of the Director, to serve the purposes of this Right -of -Way Management Ordinance. The decision of the Director not to waive any such requirement is not subject to appeal to the city council. Section 25 -1021 may be waived as provided therein. Waiver of provisions of Sections 25 -1003 through 25 -1005 and 25 -1020 may be rescinded by the Director at any time upon written notice to the person subject to the requirement. ORDINANCE NO. 2001 -02 Section 13. Section 25 -1000, 1003, 1023 and 1028 are hereby amended by replacing "is" with "are" where it occurs after "equipment". Section 14. Section 25 -1000, 1003, 1006, 1017, 1020, 1021, 1022, 1023, 1024, 1025, 1026 and 1028 are hereby amended by deleting all references to "equipment or "equipment is" and substituting "facilities" or "facilities are" awefet Section 15. This ordinance shall be effective after adoption and thirty days following its legal publication. Adopted this 26 day of February 2001. ATTEST: City Clerk Date of Publication: March 7, 2001 Effective Date: April 6, 2001 (Strikeouts indicate matter to be deleted, underline indicates new matter.) rc.P��1 Mayor