HomeMy WebLinkAbout1997-17 12-15 CCO CITY OF BROOKLYN CENTER
Notice is hereby given that a public hearing will be held on the lOth day of November, 1997, at 7:00 p.m.
or as soon thereafter as the matter may be heard at the City Hall, 6301 Shingle Creek Parkway, to consider
an amendment to Chapter 25 regarding the regulation of the use of public 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 569-3300 to make arrangements.
ORDINANCE NO. 97-17
AN ORDINANCE RELATING TO REGULATION OF PUBLIC
RIGHT-OF-WAY; ADDING NEW SECTIONS 25-1000 THROUGH 25-
1032 TO THE BROOKLYN CENTER CODE OF ORDINANCES.
THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER ORDAINS AS FOLLOWS:
Section 1. Chapter 25 of the City Ordinances of the City of Brooklyn Center is amended by adding
new sections 25-1000 through 25-1032 as follows:
RIGHT OF WAY MANAGEMENT
Section 25-1000. Findines and Purnose.
To nrovide for the health. safetv and well-beine of its citizens. and to ensure the structural inte�ritv of its
streets and the annronriate use of the riehts-of-wav_ the Citv strives to keen its rights-of-wav in a state of
good renair and free from unnecessarv encumbrances.. Although the �eneral nonulation bears the financial
burden for the unkeen of the ri�hts-of-wav_ a nrimarv cause for the earlv and excessive deterioration of
its ri�hts-of-wav is freauent excavation.
Rieht-of-wav obstruction is a source of frustration for merchants. business owners and the �eneral
nonulation which must avoid these obstructions or chanee travel or shonnin� nlans because of them and
has a detrimental effect on commerce. Persons whose eauinment is within the ri�ht-of-wav are the nrimarv
cause of these freauent obstructions.
The Citv holds the riehts-of-wav within its geoeranhical boundaries as an asset in trust for its citizens. The
Citv and other nublic entities have invested millions of dollars in nublic funds to build and maintain the
ri�hts-of-wav. It also recognizes that some nersons_ bv nlacing their eauinment in the ri�ht-of-wav and
charein� the citizens of the Citv for goods and services delivered therebv. are usin� this nronertv held for
the nublic �ood. Althoueh such services are often necessarv or convenient for the citizens_ such nersons
receive revenue and/or nrofit throueh their use of nublic nronertv.
In resnonse to the foregoing facts. the Citv has enacted this Rieht-of-Wav Manaeement Ordinance relating
to ri¢ht-of-wav nermits and administration. This Ordinance imnoses reasonable re�ulations on the
�lacement and maintenance of eauinment currentiv within its right�c-of-wav or to be nlaced therein at some
future time. it is intended to comnlement the re�ulatorv roles of state and federal a�encies. Under this
Ordinance No. 97-17
ordinance. nersons disturbin� and obstructing the riehts-of-wav will bear a fair share of the financial
resnonsibilitv for their inte�ritv. Fi v
nall this Ordinance nrovides for recoverv of out of nocket and
nroiected costs from nersons using the nublic rights-of-wav.
Section 25-1001. Definitions.
The following definitions annlv to the Ri�ht-�f-Wav Mana�ement Ordinance of this Code. Unless used in
a context which indicates otherwise_ defined terms remain definPd terms whether or not ca�italized.
(al "Annlicant" means anv nerson reauesting nermissi�n to excavate or ohstnic;t a right-of-wav.
(bl "Citv" means the Citv of Brooklvn Center. Minnesota. F�r nurnoses of Section 25-1026. citv includes
its elected �fficials_ officers_ emnlovees and a�ents.
(cl "Citv Cost" means the actual cost incurred bv the Citv for nublic ri�hLs-of-wav management_ including
but not limited to costs associated with rPgistering annlicants. issuing_ �nrocessin�. and verifvine
ri�ht-of-wav nermit annlications_ insnectine iob sites and restorati�n nroiects_ maintainine. sunnortine.
nrotecting. or movin� user eauinment durin� nublic ri�ht-of-wav work nrovidin� traffic control due to
annlicant's neglect or inadeouate nerformance� determining the adeauacv of right-of-wav restoration_
restorine work inadeauatelv nerformed: and revokin� rieht-of-way nermits and nerforming all other tasks
reauired bv this Ri�ht of Wav Management Ordinance. includin� other costs the citv mav incur in
manaeine the nrovisions of this Ri�ht of Wav Mana�ement Ordinance.
(dl "Delav Penaltv" means the nenaltv imnosed as a result �f unreasonable delavs in rieht-of-wav
construction.
(el "Denartment" means the Denartment of Piiblic Warks of the Citv.
(fl "Denartment Insnector" means anv nerson authorized bv the Director to carrv �ut insnections related
to the nrovisions of this Rieht of Wav Mana�ement Ordinance.
(el "Director" means the Citv Mana�er_ or her or his designee.
(hl "Emer�encv" means a condition that (11 n�se� a clear and immediate daneer to life or health_ or of a
sienificant loss of nronertv: or (21 reauires immPdiate renair or renlacement in order to restore service to
a customer.
(il "Eauinment" means anv tan�ible asset used to install_ rPnair. �r maintain facilities in anv rieht-of-wav.
Jil "Excavate° means to di� into or in anv wav remove or nhvsicallv disturb ar nenetrate anv nart of a
ri�ht-of-wav. excent horticultural nractices of nenetratin� the houlevard area to a denth of less than 12
inches.
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Ordinance No. 97-17
(kl "Excavation Permit° means the nermit which must be obtained beforP a nerson mav excavate in a
right-of-wav. An excavation nermit allows thP holder to excavate that nart �f the right of wav described
in such nermit.
(11 "Excavation Permit Fee" means monev naid to the Citv bv an annlicant to cover the costs as nrovided
in Section 25-1009.
(ml "Facilitv" means anv tan�ible asset in the ri�ht-of-wav reauired to nrovide Utilitv Service. but shall
not include boulevard nlantin�s or �ardens olanted or maintained in the right of wav between a nerson's
�ronertv and the street edge or curb.
(nl °In_" when used in c�niunction with °right-of-wav." means over. above. in. within. on �r under a
rieht-of-wav.
(ol "Local Renresentative" means a local nerson or z�ersons. or desi�nee of such nerson or nersons_
authorized bv a registrant to accent service and to make decisions for that re�istrant reearding all matters
within the scone of this Ri�ht-of-Wav Manaeement Ordinance.
(nl "Obstruct" means to nlace anv �biect in a ri�ht-of-wav s� as to hinder free and onen nassage over that
or anv nart of the rieht-of-wav.
(al "Ohstructi�n Permit" means the nermit which must be obtained hefore a z�erson mav obstruct a
ri�ht-of-wav_ allowing the holder to hinder freP and onen nassaee over the snecified nortion of that
ri�ht-of-wav hv nlacine eauinment described therein on the rieht-of-wav for the duration snecified therein.
(rl "Obstruction Permit Fee° means monev naid to the Citv bv a registrant to cover the costs as nrovided
in Section 25-1009.
(sl "Permittee" means anv nerson to whom a nermit t� excavate or obscruct a ri�ht-of-wav has been
granted bv the Citv under this Rieht of Wav Mana�ement Ordinance_
(tl "Person" means anv natural or coroorate nerson. business association or other husiness entitv including.
but not limited to, a nartnershin_ a sole nronrietorshin_ a nolitical subdivision_ a nublic or nrivate a�encv
of anv kind. a utilitv. a successor or assien of anv of the foregoing. or anv other leeal entitv which has or
seeks to have eQUinment in anv right-of-wav.
(ul "Re�istrant° means anv nerson who (Il has or seeks to have its eauinment located in anv ri�ht-of-wav.
or (21 in anv wav occunies or uses_ or seeks to occunv or use. the ri�ht-of-wav or anv eauinment in the
rieht-of-wav.
lvl "Renair" means the temnorarv construction work necessarv to make the right-of-wav useable for
travel.
i
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Ordinance No. 9'7-17
(wl "Restoration Bond" means a nerformance bond_ a letter of c;rPdit. ca.sh denosit_ or other form of
securitv nosted to ensure the availabilitv of sufficient funds to assure that ri�ht-of-wav excavation and
obstruction work is comnleted in both a timelv and qualitv manner.
(xl "Restore or Restoration" means the nroc;ess bv which an excavated right-of-wav and surroundin� area.
includin� navement and foundation_ is rPt�irned to the same condition that existed before the
commencement of the w�rk.
(vl "Restoration Cost" means an amount �f monev naid to the Citv bv a nermittee to cover the cost of
restoration.
(zl "Rieht-of-Wav" means the surface and snace above and helow a right-of-wav for nublic roadwav_
hiehwav. street. cartwav. bicvcle lane and nublic sidewalk nurooses in which the Citv has an interest_
including other dedicated riehts-of-wav for travel nurn�ses and utilitv easements of the citv.
(aal "Right-of-Wav Mana�ement Ordinance" means Sections 25-1000 throu�h 25-1032 of this Code.
(bbl "Right-of-Wav Permit" means either the Pxcavation nermit or the obstruction nermit_ or both_
denendine on the context. reQUired hv this Rieht-of-Wav Mana�ement Ordinance.
(ccl "Service" or "Utilitv Service" includes but is not limited to (11 those servic;es nrovided bv a nublic
utilitv as defined in Minn. Stat. 216B.02. subds. 4 and 6: (21 telecommunicati�ns. nineline. c�mmunitv
antenna television_ fire and alarm communi�ations. water. electricitv, lieht. heat. cooling energv_ or nower
services: (31 the services nrovided bv a cornoration or�anized for the nurooses set forth in Minn. Stat.
300.03: (41 the services nr�vided bv a district heatin� or coolin� svstem and (51 cable communications
svstems as defined in Minn. Stat. Chan. 238.
(ddl "Sunnlementarv Annlication" means an annlication made to excavate or obstruct more of the
ri�ht-of-wav than allowed in. or to extend_ a nermit that has alreadv been issued.
(eel "Telecommunication Rights-of-Wav User" means a nerson ownin� or controlline a facilitv in the
nublic ri¢ht-of-wav. or seekin� to own or control a facilitv in the nublic right-of-wav. that is used or is
intended to be used for transnortine telecommunication or other voice or data information. For nurnoses
of this Right-of-Wav Management Ordinance. a cable communication svstem defined and reeulated under
Minn. Stat. Chan. 238. and telecommunication activities related to nroviding natural gas or electric ener�v
services are not telecommunications ri¢ht-of-wav users.
(ffl °Unusable Eauinment" means eouinment in the right-of-wav which has remained unused for one vear
and for which the reeistrant is unable to nrovide nroof that it has either a nlan to begin using it within the
next twelve (121 months or a notential nurchaser or user of the eauinment.
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Ordinance No. 97-17
Section 25-1002. Administration.
The Citv Manager is the nrincinal Citv official resn�nsiblP f�r the administrati�n of the ri�hts-of-wav.
ri�ht-of-wav nermits. and the ordinances related thereto. The Mana�er mav dele�ate anv or all of the
duties hereunder. a a
Section 25-1003. Re�istration and Ri�ht-of-Wav Occunancv.
Subd. l. Re�istration_ Each nerson who occunies_ uses. or seeks to occunv or use_ the ri�ht-of-wav or
anv eauinment in the right-of-wav_ includin� bv lease_ sublease or assienment� ar who has. or seeks to
have. eauinment in anv ri�ht-of-wav must re�ister with the Director_ Re�istration will consist of nrovidin�
annlication information and navin� a reeistration fee. A nerson who navs a franchise fee to the Citv in
accordance with a franchise a�reement shall be exemnt from the navment of z�ermit fees if so nrovided in
the franchise. If the work is to be nerformed bv an agent_ contractor or subc:ontractor on behalf of a
reeistrant_ such annlication shall also be si�ned or nre-authorized bv the re�istrant.
Subd. 2. Re�istration Prior t� Work. No nerson mav construct. install. rebair. remove. relocate. or
�erform anv other work on_ or use anv eauinment or anv nart thereof in anv ri�ht-of-wav without first
being re¢istered with the Director.
Subd. 3. Excentions. Nothin� herein shall be construed to reneal or amend the brovisions of a citv
ardinance nermitting nersons to nlant or maintain boulevard nlantin�s or �ardens in the area of the
right-af-wav between their nronertv and the street curb nrovided and such use is subiect to the use of the
rieht-of-wav bv the Citv or other Persons for installation and maintenance of fac:ilities. PPrsons nlantine
or maintainin� boulevard nlantin�s or gardens or installine or oz�erating irri�ation svstems shall not be
deemed to use �r �ccunv the right-of-wav_ and shall not be reauired xo obtain anv nermits or satisfv anv
other reauirements for nlantine or maintainin� such boulevard nlantines or gardens under this Rieht-of-
Wav Management Ordinance. However. excavations deener than 12 inc;hPS are subiect to the nermit
reauirements of section 25-1OQ6. Registration shall not be reauired for nrivate drivewavs or walkwavs_
sewer and water connections servin� individual nroz�erties or eauinment of a nrivate landowner which is
within the right-of-wav and between that owner's �r�nertv and the street curb� however such activities are
not exemnt from nermittin� reauirements of section 25-1006_ Anv Service or Utilitv Service nrovided bv
a oerson under a franchise with the Citv shall re�ister nursuant to this section. but nePd not nrovide the
regi�trati�n information reauired bv Section 25-1004 if sizch informa.tion has been received bv the Citv in
the administration of the franchise agreement_ In addition. Persons actine as a�enis. contractors or
subcontractors for a reeistrant which has nronerlv registered or who is exemnt from re�istration shall be
exemnt from reeisterine under Section 25-1004.
Section 25-1004_ Re¢istration Information.
Subd. 1. information Reouired. The information nrovided to the Director at the time of re�istration shall
include_ but not be limited to:
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Ordinance No. 97-17
(al Each re�istrant's name. GonhPr One-Ca.11 registration certificate numher. address and e-mail address
if an�licable. and telenhone and facsimile numhers.
(bl The name_ address and e-mail address_ if annlic;able. and telenhone and facsimile numbers of a local
renresentative. The local renresentative or desienee shall he available at all times. Current information
reeardine haw to contact the local representative in an emereencv shall be brovided at the time of
re¢istration.
(cl Such other information as the Citv mav reauire includin�. but not limited to. �roof of adeauate nublic
liabilitv insurance.
Subd. 2. Notice of Chanees. The registrant shall keen all of the information listPd above current at all
times bv nroviding to the Director information as t� changes within fifteen (l51 davs followin� the date on
which the re�istrant has knowledge of anv change.
Section 25-1Q05. Renortin� Obligations.
Subd_ 1. Onerations. Each reeistrant shalL at the time of reeistration and bv December 1 of each vear_
file a construction and maior maintenance nlan with the Director. Such nlan shall be submitted usin� a
format designated bv the Director and shall contain the information determined bv the Director to be
necessarv to facilitate the coordination and reduction in thP frerniencv of excavations and obstructions of
rights-of-wav. Renorting shall not be reauired for nr�iects which are to be undertaken onlv in coniunction
with citv oroiects.
The nlan shall include. but not be limited to_ the following information:
(al The locations and the estimated beginnin� and endin� dates of all Proiects to be commenced durin�
the next calendar vear (in this section. a"Next-vear Proiect"l: and
(bl The tentative locations and estimated be�innin� and endine dates for all Proiects contemnlated for the
five vears following the next calendar vear (in this section. a"Five Year Proiect"l.
The term 'broiect" in this section shall include hoth Next-vear Proiects and Five-vear Proiects. Bv Januarv
1 of each vear the Director will have available for insnection in the Director's office a comnosite list �f
all Proiects �f which the Director has been inf�rmPd in the annual nlans. All reeistrants are resnonsible
for keenin� themselves informed of the current status of this list.
Thereafter_ bv Februarv 1_ each re�istrant mav chan�e anv Proiect in its list of Next-vear Proiects. and
must notifv the Director and all other re�istrants of all such chanees in said list_ Notwithstandin� the
foregoing_ a registrant mav at anv time ioin in a Next-vear Proiect of another re�istrant listed bv the other
re�istrant_
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Ordinance No. 97-17
Subd. 2. Additional Next-vear Proiects: Notwithstandin� the foregoing. the Director mav. for good cause
shown_ allow a registrant to submit additional Next-vear Proiects. Good cause includPS.. but is not limited
to_ the criteria set forth in Section 25-1014 concernin� the discretionarv issuance of nermits.
Section 25-1006. Permit Re4uirement.
Subd. 1. Permit Reauired. Excent as otherwise nrovided in this CodP. no person mav obstruct or excavate
anv rieht-�f-wav without first havine �btained the annr�nriate right-of-wav nermit from the Director to do
sQ
(al Excavation nermit. An excavation nermit is reauired bv a reeistrant to excavate that nart of the
rieht-of-wav described in such nermit and to hinder free and onen nassa�e over the snecified nortion of the
ri�ht-of-wav bv nlacin� eauinment described thPrein_ to the extent and for thP duration snecified therein.
(b) Obstruction nermit. An obstruction nermit is reouired bv a reeistrant to hinder free and onen nassa�e
over the snecified nortion of right-of-wav bv nlacing erniinment described therein on the ri�ht-of-wav_ to
the extent and for the duration snecified therein. An Obstruction Permit is not reauired if a Person alreadv
nossesses a valid Excavation Permit for the same work neriod.
Subd. 2. Permit Extensions. No nerson mav excavate or obstruct the ri�ht-of-wav bevond the date or
dates snecified in the nermit unless such nerson (il makes a sunnlementarv annlication for another
ri�ht-of-wav nermit before the exniration of the initial nermit. and (iil a new nermit or nermit extension
is granted
Subd_ 3_ Delav Penaltv. Notwithstandin� subd. 2 of this section. even if a new nermit or nermit
extenSion is �ranted_ the Director shall estahlish and imnose a delav nenaltv for unreasonable delavs in
rieht-of-wav excavation. obstruction. repair. or restoration.
Subd. 4. Permit Disnlav. Permits issued under this Chanter shall he consnicuouslv disnlaved at all times
at the indicated w�rk site and shall be available for insnPCtion bv the Director
Section 25-1007. Permit Annlications.
Annlication for a nermit is made to the Director. Ri�ht-of-wav nermit annlications shall contain_ and will
be considered comnlete onlv unon comnliance with the reauirements of the followin� nrovisions:
tal Re�istration with the Director nursuant to this Chanter:
(bl Submission of a comnleted nermit annlication form_ including all reauired attachments_ and scaled
drawings showing the snecific location and area of the nronosed nroiect and the detailed location of all
existin� and nro�osed eo�nment:
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97-17
Ordinance No.
(cl Pavment of all monev due to the Citv for
(11 nermit fees and costs_
(21 nrior obstructions or excavations�
(31 anv undisnuted loss_ damaee_ or exnense suffered bv the Citv because of annlicant's nrior
excavations or obstructions of the riehts-of-wav or anv emer�encv actions taken bv the Citv.
(41 franchise fees_ if annlicable.
(dl When an excavation nermit is repuested for niirinoses of installin� additional eauinment. and the nostin¢
of a restoration bond for the additional eauinment is insufficient. the nostin� of an additional or lar¢er
restoration bond for the additional eq�ment mav be reauired.
Section 25-1008_ Issuance of nermit_ conditions.
Subd_ 1. Permit Issuance. If the Director determines that the annlicant has satisfied the reauirements of
this Chanter. the Director shall issue a nermit.
Subd. 2. C�nditions. The Director mav imnose reasonable conditions unon the issuance �f the nermit and
the oerformance of the annlicant thereunder to nrotect the nublic health_ safetv and welfare. to ensure the
structural inte�ritv of the ri�ht-of-wav. to nrotect the nronertv and safetv of other users of the right-of-wav_
and to minimize the disruntion and inconvenience to the travelin� nublic.
Section 25-1009. Permit Fees.
Subd. 1. Excavation Permit Fee. The Excavation Permit Fee shall be established bv the Director in an
amount designed to recover the Citv Manaeement Costs.
Subd. 2. Obstruction Permit Fee. The Obstruction Permit Fee shail be established bv the director and
shall be in an amount desi�ned to recover the Citv Mana�ement Cost.
Subd. 3. Pavment �f Permit Fees. No excavation nermit or obstruction nermit shall be issued without
navment of such fees before the issuance of such a nermit.
Subd. 4. Non refundable. Permit fees that were naid for a nermit that the Directar has revoked for a
breach as stated in Section 25-1019 are not refundable.
Subd. 5. Use of Permit Fees. All obstruction and Pxcavation nermit fees shall be used solelv for citv
manaeement. construction. maintenance and renair c;�sts of the rieht-of-wav.
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Ordinance No. 97-17
Section 25-1010_ Right-of-Wav Renair and Restoration.
Subd. 1. Timin�. The work to be done under the excavation bermit_ and the rebair and restoration of the
right-of-wav as reauired herein_ must be comnleted within the dates snecified in the nermit_ increased bv
as manv davs as work could not be done as determined hv the Director because of extraordinarv
circumstances bevond the control of the nermittee �r when work was nrohibited as unsea.s�nal ar
unreasonable under Section 25-1003.
In addition to renairing its own work_ the nermittee must restore the �eneral area of the work_ and the
surroundine areas_ including the navin� and its foundations to the same condition that existed before the
commencement of the work and must insnect the area of the w�rk and use reasonable care to maintain the
same condition for twelve (121 months followine accentance bv the citv_
Subd. 2. Renair and Restoration. Permittee shall rPnair its own work. In addition. in its annlication for
an excavation nermit. the nermittee mav c;hoose either to have the Citv restore the rieht-of-wav ar to
restore the rieht-of-wav itself.
(al Citv Restoration. If the nermittee choosPS to have the Citv restore the ri�ht-of-wav. it shall nav the
costs thereof within thirtv (301 davs of billine. If. durin� the twelve (121 months followin� such
restoration_ the navement settles due to nermittee's imnroner backfilling_ the nermittee shall nav to the
Citv. within thirtv (301 davs of billin�_ the cost of renairin� said navement. The Mana�er mav reauire the
permittee to nrovide a navment bond or nrenav the estimated costs of such restoration. the unused nortion
of which shall be returned to the nermittee.
(bl Permittee Restoration. If the nermittee chooses to restore the ri�ht-of-wav itself_ it shall at the time
of annlication for an excavation nermit nost a restoration bond in an amount determined bv the Director
to be sufficient to cover the cost of restorin� the ri�ht-of-wav t� its nre-excavation condition. I£ twelve
(121 months after completion of the restoration �f the right-of-wav. the Director determines that the
right-of-wav has been nronerlv restored. the suretv on the restoration bond shall be released. Permittees
with whom the Citv has a current franchise agreement. or authorized a�ents. contractors_ or subcontractors
of that franchise shall not be reauired to nost a restoration bond_
Subd. 3. Standards. The nermitted shall nerform renairs and restaration ar.cording to the standards and
with the materials snecified bv the Director. The Director shall have the authoritv to nrescribe the manner
and extent of the restoration. and mav do so in writtPn nrocedures of general annlication or on a
case-bv-case basis. The Director in exercisin� this authoritv shall be euided bv the followin� standards
and considerations.
(al The number. size. denth and duration of the excavations. disruntions or damage to the ri�ht-of-wav_
(bl The traffic volume carried bv the right-of-wav_ the character of the nei�hborhood surrounding the
ri¢ht-of-wav:
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Ordinance No. 97-17
(cl The ore-excavation condition of the right-�f-wav: the remainin� life exnectancv of the ri�ht-of-wav
affected bv the excavation:
(dl Whether the relative cost of the method of restoration to the �nermittee is in reasonable balance with
the nrevention of an accelerated denreciation of the right-of-wav that would otherwise result from the
excavation_ disturbance or dama�e to the right-of-wav_ and
(el The likelihood that the narticular method of restoration would bP effective in slowing the denreciation
of the right-of-wav that would otherwise take nlac;e_
Subd. 4. Guarantees. Bv ch�osing to restore the right-of-wav itself. the nermittee guarantees its work and
shall maintain it for twelve (121 months followine its comnletion. Durine this 12-month neriod it shalL
unon notification from the Director_ correct all restoration wark to the extent necessarv_ usin� the method
reauired bv the Director. Said work shall be comnleted wit.hin five (51 calendar davs of the receint of the
notice from the Director_ not includine davs durine which work cannot be done because of circumstances
constitutin� force maieure or davs when work is nrohihited as unseasonal or unreasonable under Section
25-1013.
Subd. 5. Failure to Restore. If the Permittee fails to restore the rieht-of-wav in the manner and to the
condition reauired bv the Director. or fails to satisfa.ct�rilv and timelv comnlete all restoration reauired bv
the Director. the Director at its ontion mav do such work Tn that event the nermittee shall nav to the Citv_
within thirtv (301 davs of billine_ the cost of restorin� the right-of-wav. If nermittee fails to nav as
reauired_ the citv mav exercise its rights under the restoration bond.
Section. 25-101 l. J�int Annlications.
Subd. l. Joint Annlication. Re¢istrants mav iointiv annlv for oermits to excavate or obstruct the
right-of-wav at the same nlace and time.
Subd. 2. With Citv Proiects. Re�istrants who ioin in a scheduled obsiniction or excavation nerformed bv
the Director_ whether ar not it is a ioint anDlication bv two or more registrants or a sin�le annlication. are
not reauired to nav the �bstruction nortion of the nermit fee for that nart of the work which falls within the
citv nroiect construction limits: The obstruction nortion of the fee will be reauirPd for work which occurs
outside of the citv nroiect construction limits and far work within such construction limits which is not
comnleted bv the citv nroiect comnletion date_
Suhd. 3. Shared Fees_ Registrants who annlv for nermits for the same �bstruction or excavati�n_ which
the Director does not nerf�rm_ mav share in the navment of the obstruction or excavation nermit fee.
Reeistrants must agree amon� themselves as to the nortion each will nav and indicate the same on their
�plications.
i
10
Ordinance No. 97-17
Section 25-1012. Sunnlementarv Annlications.
Subd. 1. Limitation on Area. A right-of-wav nermit is valid onlv far the area of the right-of-wav snecified
in the nermit. No nermittee mav do anv work outside the area snecified in the nermit. excent as nrovided
herein. Anv nermittee which determines that an area greater than that snecified in the nermit must be
obstructed or excavated must bef�re workin� in that ereater area (il make annlication for a nermit extension
and nav anv additional fees re4uired therebv_ and (iil be �ranted a new nermit or nermit extension.
Subd. 2. Limitation �n Dates. A right-of-wav nermit is valid �nlv for the dates snecified in the nermit.
No nermittee mav be�in its work before the nermit start date or.. excent as nrovided herein. continue
warking after the end date_ If a nermittee does not �nish the work bv the nermit end date. it must annlv
for a new nermit for the additional time it needs.. and receive the new nermit or an extension of the old
nermit before workine after the end date of the nrevious nermit. This siinnlementarv annlication must he
done before the nermit end date.
Section 25-1013_ Other Obli�ations.
Subd. 1. Comnliance With Other Laws.. Obtainin� a right-of-wav nermit does not relieve nermittee of its
�tv to obtain all other necessarv nermits_ licenses. anci authoritv and to �a,v all fees reauired bv anv other
Citv_ Countv_ State_ or Federal rules. laws or reeulations. A nermittee shall comnlv with all reauirements
of locaL state and federal laws. including Minn. Stat. SS 216D.01-.09 ("One Call Excavation Notice
Svstem"l. A nermittee shall nerform all work in conformance with all annlicable codes and established
rules and re�ulations_ and is resnonsible for all wark donP in the right-of-wav nursuant to its nermit.
reeardless of who does the work.
Subd. 2. Prohibited Work. Excent in an emereencv. and with the annroval of the Director_ no
right-of-wav obstruction or excavation mav be done when seasonallv nrohibited or when conditions are
unreas�nable for such work.
Subd. 3. Tnterference with Ri�ht-of-Wav. A nermittee shall not so obstruct a ri�ht-of-wav that the natural
free and clear nassage of water through the gutters or othPr waterwa.vs shall be interfered with_ Private
vehicles mav not be narked within or next to a nermit area unless authorizeci bv the Director. The loading
or unloadine of trucks next to a nermit area is nrohihited unless snecificallv authorized bv the nermit.
Section 25-1014. Denial of Permit.
The Director mav denv a nermit for fail�ire to meet the reauirements and conditions of this Right-of-Wav
mana�ement Ordinance or if the Director determines that cienial is necessarv to nrotect the health_ safetv_
and welfare or when necessarv to nrotect the Ri�ht-of-Wav and its current use.
11
Ordinance No. 97-17
Secti�n 25-1015. Installation Requirements.
The excavation. backfilline_ renair and restoration.. and all other work nerformPd in the rieht-of-wa.v shall
be done in c�nformance with "The Standard Snecifications for Street Onenings" as nromulgated bv the
Director and at a location as reQUired bv Section 25-1021.
Section 25-1016. Insnection.
Subd. 1. Notice of Comnletion. The nermittee shall notifv the Director unon the comnletion of the work
under anv nermit and at anv stage of the work of the nroiect snPC;ified in the nermit or standard
snecifications �f the citv.
Suhd. 2. Site Insnection. Permittee shall make the wark-site available to the Director and to all others as
authorized bv law for insnection at all reasonable times durine the execution of and unon comnletion of
the work.
Subd 3. Authoritv of Director. At the time of insnection the Director mav order the immediate cessation
of anv work which ooses a serious threat to the life. health_ safetv or well-bein� of the nublic_ The
Director mav issue an order to the re�istrant for anv work which does not conform to the annlicahle
standards. c�nditions or codes. The order shall statP that failure to correct the violation will be cause far
revocation of the nermit. Within ten (101 davs after issuance of thP order. the re�istrant shall nresent nro�f
to the Director that the violation has been corrected. If such nroof has not been nresented within the
reauired time_ the Director mav revoke the nermit nursuant to Section 25-1019.
Section 25-1017. W�rk Done With�ut a Permit.
Subd. 1_ Emereencv Situations. Each re�istrant shall immediatelv notifv the Director of anv event
re�ardine its eauinment which it considers to be an emergencv. The re�istrant mav nroceed to take
whatever actions are necessarv to resnond to the emereencv. Within two business davs after the
occurrence of the emer�encv the re�istrant shall annlv for the necessarv nermits_ nav the fees associated
therewith and fulfill the rest of the requirements nPCessarv to brin� itself into comnliance with this Right-of-
Wav Manaeement Ordinance for the actions it took in resnonse to the emereencv.
If the Director becomes aware of an emer�encv re�ardin� a re�istrant's eauinment_ the Director mav
attemnt to contact the local renresentative of each rPeistrant affected. or notentiallv affected. bv the
emereencv. In anv event_ the Director mav take whatPVer action it dePms necessarv t� resnond to the
emereencv. the cost of which shall be borne bv the re�istrant whose eauinment occasioned the emer�encv.
Subd. 2. Non-Emereencv Situations. Excent in an emergenc„v_ anv�erson wha without first having
obtained the necessarv nermit. obstructs or excavates a right-of-wav must subseauentiv ohtain a nermit.
nav double the normal fee for said nermit_ nav doublP all the othPr fees rerniired bv this Code of
Ordinances, denosit with the Director the fees necessarv to correct anv damage to the ri�ht-of-wav and
comnlv with all of the reauirements of this Right-of-Wav Management Ordinance.
12
Ordinance No. 97-17
Section 25-1018. Sunnlementarv Notification.
If the obstruction or excavation of the rieht-of-wav be�ins later or ends sooner than the date �iven on the
nermit_ nermittee shall notifv the Director of the ac;curate information as soon as this information is known
Section 25-1019. Revocation of Permits.
Subd. 1. Substantial Breach. The Citv reserves its ri�ht. as nrovided herein. to revoke anv ri�ht-of-wav
nermit. without a fee refund. if there is a substantial hreach of the terms and conditions of anv statute.
ordinance_ rule or re�ulation_ or anv conditi�n �f the bermit. A substantial breach bv nermittee shall
include. but shall not be limited to_ the followin�:
(al The violation of anv material nrovision of the right-of-wav nermit:
(bl An evasion or attemz�t to evade anv material nrovision of the right-of-wav nermit_ or the nernetration
or attemnt to nernetrate anv fraud or deceit unon the Citv ar its citizens:
(cl Anv material misrenresentation �f fact in the annlication for a rieht-of-wav nermit:
(dl The failure to comnlete the work in a timelv manner: unless a nermit extension is obtained or unless
the failure to comnlete work is due to reason's bevond a Permittee's control_ or
(el The failure t� carrect in a timelv manner a condita�n indicated on an order issued nursuant to Section
25-] 016.
Subd. 2. Written Notice of Breach. If the DirPCtor determines that the nermittee has committed a
substantial breach �f a term or condition of anv statute. or�linance_ rule. regulation or anv condition of the
permit the Director shall make a written demand unon the nermittee to remPdv such violation. The demand
shall state that continued violations mav be cause for revocation of the nermit. Further_ a substantial
breach. as stated above_ will allow the Director_ at his or her discretion_ to nlace additional or revised
conditions on the nermit.
Subd. 3. Resnonse to Notice of Breach. Within twentv-four (241 hours of receivin� notification of the
breach, nermittee shall contact the Directar with a nlan_ accevtable to the Director. for its correction.
Permittee's failure to so contact the Director_ or the Dermittee's failure to submit an accentable nlan. or
nermittee's failure to reasonablv imnlement the annroved nlan_ shall he cause for immediate revocation of
the nermit.
Subd_ 4. Reimbursement of Citv Costs. If a nermit is rPV�ked. the nermittee shall also reimburse the citv
for the citv's reasonable costs. including restorati�n costs and the costs of collection and reasonable
attornevs' fees incurred in connection with such revocation.
13
Ordinance No. 97-17
Section 25-1020. Mannine Data.
Subd. 1. information Repuired. Excent as �rovided in subd. 2 of this section_ each reeistrant shall nrovide
t� the Director information indicating the horizontal and vertiral location. relative to the boundariPS of the
ri�ht-�f-wav_ of all eQUinment which it owns or �ver which it has control and which is located in anv
ri�ht-of-wav (°Manning Data"l. Manning Data shall be nrovided with the snecificitv and in the format
reauested bv the Director for inclusion in the manning svstem used bv the Director.
Within six (61 months after the acnuisition_ installati�n. or construction of additional eauinment or anv
relocation. abandonment_ or disuse of existine eauinment. each re�istrant shall sunnlement the Mannin�
Data reauired herein.
Each reeistrant shall_ within six (61 months after the datP of nassa�e of this Ri�ht-of-Wav Mana�ement
Ordinance_ submit a nlan to the Director snecifvin� in detail the stens it will take to comnlv with the
reouirements �f this Section. Said nlan shall nrovide for the submission of all Mannine Data for the Citv
as earlv as mav be reasonable and nractical. but not later than five (51 vears after the date of nassa¢e of
this Rieht-of-Wav Manaeement Ordinance.
Notwithstandin� the fore�oine_ Mannin� Data shall be submitted bv all registrants for all eauinment which
is to be installed or constructed after the date of nassage of this Right-of-Wav Mana�ement Ordinance at
the time anv nermits are sou�ht under these ordinan�Ps
After six (61 months after the nassage of this Right-of-Wav Management Ordinance. a new registrant_ or
a re�istrant which has not submitted a nlan as rerniired above_ shall submit comnlPtP and accurate Mannin�
Data for all its eauinment at the time anv nermits are s�uaht under these ordinances.
Subd. 2. Telecommunication Eauinment. Informati�n on existin� facilities and eauinment of
telecommunications right-of-wav users need onlv be sunnlied in the form maintained bv the
telecommunications ri�ht-of-wav user.
Subd. 3. Trade Secret Information. At the re�uest of anv re�istrant. anv information repuested bv the
Direct�r_ which aualifies as a"trade-secret° undPr Minn. Stat. 13.37(bl shall be treated as trade secret
information as detailed therein. With resnect to the nrovision of mannine data_ the citv mav consider
uniaue circumstances from time to time reauired to obtain manning data.
Section 25-1021. Location of Eauinment.
Subd. 1. Under¢roundine. Unless otherwise nertnitted bv an existing franchise or Minn. Stat_. Sec.
216B.36_ or unless existin� above-ground eauinment is renaired or renlaced. new construction and the
installation of new eauinment and renlacement of old epuinment shall be done under�round or c�ntained
within buildin�s or other structures in conformitv with annlicable codes, unless for technical reasons
annroved bv the Director it is not technicallv nossiblP or nnident to do so.
14
Ordinance No. 97-17
Subd. 2. Corridors. The Director mav assien snecific; corridors within the right-of-wav. �r anv narticular
seement thereof as mav be necessarv. for each tvne of eauinmPnt that is ar. nursuant to current technol�gv_
the Director exnects will somedav be locatPd within the ri�ht-of-wav. All excavation. obstruction. or other
�ermits issued bv the Director involvin� the installation or renlacement of eauinment shall desi�nate the
nrouer corridar for the eauinment at issue.
The Citv mav not reauire the relocation of existinu underground facilities excent in the event the Citv
institutes a street imnrovement nroiect_ lawfullv imitated and conducted bv the Citv on its own behalf.
which necessarilv results in a substantial change of elevation and erade for a narticular location. In such
event_ all affected utilities shall be relocated in a manner whirh minimizes the technical and financial
imnact to each utilitv. The Citv mav establish a hieh densitv corridor for telecommunications facilities in
a manner consistent with the rules and re�ulations of the Minnesota Public Utilities Commission.
Subd_ 3. Limitation of Snace. To nrotect health and safetv. the Director shall have the nower to nrohibit
or limit the nlacement of new or additional eauinmPnt within the rieht-of-wav if there is insufficient snace
to accommodate all of the reouests of reeistrants or nersons to oc;c;unv and use the ri�ht-of-wav. In making
such decisions_ the Director shall strive to the extent nossible to accommodate all existing and notential
users of the rieht-of-wav. but shall be �uided nrimarilv bv considerations of thP �ublic interest. the nublic's
needs for the narticular utilitv service_ the condition of the right-of-wav. the time of vear with resnect to
essential utilities_ the nrotection of existing eauinment in the right-of-wav_ and future Citv nlans for nublic
imnrovements and develonment nroiects which havP been determined to be in the �ublic interest.
Section 25-1022. Relocation of Eauinment.
A Re�istrant must nromntiv and at its own exnense. with due re�ard for seasonal working conditions_
nermanentiv remove and relocate its eauinment a.nd facilities in the rieht-of-wav whenever the director
reauests such removal and relocation. and shall restore the ri�ht-of-wav to the same condition it was in
nrior to said removal or relocation. The director ma.v make such reauest to nrevent interference bv the
Comnanv's eauinment or facilities with (Il a nresent or future Citv use of the ri�ht-of-wav_ (iil a nublic
imnrovement undertaken bv the Citv. (iiil an economic devPlonment nroiect in which the Citv has an
interest or investment. (ivl when the nublic health_ safetv and welfare reauire it_ or (vl when necessarv to
prevent interference with the safetv and convenience �f ordinarv travel over the ri�ht-of-wav.
Notwithstandine the foregoine. a nerson shall not be reauired to remove �r relocate its eauinment from anv
right-of-wav which has been vacated in favor of a n�n-�overnmental entitv unless and until the reasonable
costs thereof are first naid to the nerson therefor.
Section 25-1023. Pre-Excavation Eauinment Location.
In addition to comnlvin� with the reauirements of Minn. Stat. S& 216D.O1-.09 ("One Call Excavation
Notice Svstem"1 before the start date of anv right-of-wav excavation. each re�istrant wha has eauinment
in the area to be excavated shall mark the horiz�ntal and annroximate vertical nlacement of all said
eauinment. Anv registrant whose eQUioment is less that twentv (201 inches below a concrete or asnhalt
15
Ordinance No. 97
surface shall notifv and work closelv with the excavation contract�r to establish the exact location of its
eauinment and the best nrocedure for excavation.
Section 25-1024. Damaee to Other Epuinment.
When the Director does work in the right-of-wav and finds it necessarv to maintain. sunnort. or move a
re�istrant's eauinment to protect it. the Direr,t�r shall notifv the local renresentative as earlv as is
reasonablv nossible. The cosLS associated thereviith will be billed to that re�istrant and must be naid within
thirtv (30) davs fram the date of billing.
Each registrant shall be resnonsible for thP c�st �f renairing anv eauiument in the rieht-of-wav which it or
its eauinment damaees. Each registrant shall be resnonsible for the cost of renairin� anv damage to the
eauinment of another re�istrant caused during the Citv's resnonse to an emer�?encv occasioned bv that
reeistrant's eauinment. y
Section 25-1025. Ri�ht-of-Wav Vacation.
Subd. 1. Reservation of Right. If the Citv vacates a rieht-of-wav which contains the eouinment of a
re�istrant_ and if the vacation does not reauire the relocation of re�istrant or nermittee eouinment. the Citv
shall reserve. to and for itself and all reeistrants having e4uinment in the vacated ri�ht-�f-wav_ the right
to install. maintain and onerate anv eauinment in the vacated ri�ht-of-wav and to enter unon such
ri�ht-of-wav at anv time far the numose of reconstructin�. insnectin�. maintaining or renairin� the same.
Subd. 2. Relocation of EQUinment. If the vacation reauires the relocation of re�istrant or nermittee
eauinment: and (al if the vacation nroceedings are initiated bv the registrant or nermittee_ the reeistrant
ar nermittee must nav the relocation costs_ or (bl if the vacation nroceedin¢s are initiated bv the citv_ the
registrant or nermittee must nav the relocation c�sts unless otherwise a�reed to bv the citv and the
registrant or nermittee: or (cl if the vacation nrocPedinus are initiated bv a nerson or nersons other than
the re�istrant or nermittee. such other nerson �r nersons must nav the relocation costs.
Section 25-1026_ indemnification and Liabilitv.
Subd. 1. Limitation Liabilitv. Bv reason of the accentanc�e of a registration or the erant of a ri�ht-of-wav
�ermit. the Citv does not assume anv liabilitv (al for iniuries to nersons. damaee to nronertv_ or loss of
service claims bv narties other than the re�istrant or the Citv_ or (bl for claims or nenalties of anv sort
resultin� from the installation_ nresence_ maintenance or oneration of eauinment hv re�istrants or activities
of re�istrants_
Subd. 2. Indemni�cation. Bv re�isterin� with the Director. a reeistrant a�rees_ or hv accentin� a nermit
under this Chanter. a nermittee is repuired. to defend. indemnifv. and hold the Citv whole and harmless
from all costs. liabilities_ and claims for dama�es of anv kind arisin� out of the construction_ nresence_
installation_ maintenance_ renair or oneration of its eauinment_ or out of anv activitv undertaken in or near
a ri�ht-of-wav_ whether or not anv act or omission comnlained of is authorized. allowed. or nrohibited bv
a right-of-wav nermit. �t further aerees that it will not brin�_ nor cause to be brou�ht. anv acti�n_ suit or
16
Ordinance No. 97-17
ather nroceeding claimin� damaees. or seekin� anv �ther relief against the Citv for anv claim nor for anv
award arisin� out of the nresence. installation. maintenanc;e or oneration of its eauinment_ or anv activitv
undertaken in or near a right-of-wav. whether or not the act or omissi�n comnlained of is authorized.
all�wed or nrohibited bv a rieht-of-wav nermit. The foreeoine does not indemnifv the Citv for its own
ne�ligence excent for claims arisine out of �r a1lPeine the Citv's neelieence where such neeligence arises
�ut of or is nrimarilv related to the nresence_ installa ion construction_ oneration. maintenance or re air
of said eauinment bv the registrant or on the registrant's behalf. includin�. but not limited to. the issuance
of nermits and insnection of nlans or work. This section is not_ as to third narties. a waiver of anv defense
or immunitv otherwise availablP to the registrant or to the Citv: and the re�istrant. in defendin� anv acti�n
on behalf of the Citv_ shall be entitled to assert in anv action everv defense or immunitv that the Citv could
assert in its own behalf. To the extent of anv inconsistencv between this Section 25-1026 and anv
franchise. the nrovisions of the franchise shall control.
Section 25-1028. Abandoned and Unusable Eauinment..
Subd. 1. Discontinued Onerations. A reeistrant who has determined to discontinue its onerations in the
Citv must either:
(al Provide information satisfactorv to the Direc;t�r that the registrant's obli�ations for its eauinment in
the right-of-wav under this Rieht-of-Wav Mana�ement Ordinance have been lawfullv assumed bv another
registrant: or
(bl Submit to the Director a nronosal and instruments for transferring ownershin of its eauinment to the
Citv. If a re�istrant nroceeds under this clause. the Citv mav. at its ontion:
(11 nurchase the eauinment: or
(21 repuire the re�istrant, at its own exnPnse. to remove it: or
(31 reauire the re�istrant to nost a bond in an amount sufficient to reimburse the Citv for
reasonablv anticinated costs to be incurrP�i in removin� the eauinment.
Subd. 2_ Abandoned Eaui�ment. Eauinment of a registrant who fails to comnlv with subd. l_ and which_
for two (21 vears_ remains unused shall be deemed to be abandoned. Abandoned equioment is deemed to
be a nuisance. The Citv mav exercise anv remedies or rights it has at law or in eauitv. including. but not
limited to. (Il abatin� the nuisance (iil takine nossession of the eauinment and rPStoring it t� a useable
condition. or (iiil reauirin� removal of the eauinment bv the reeistrant. or the re�istrant's successor in
interest.
Subd. 3. Removal. Anv re�istrant who has unusablP and ahandoned eauinment in anv right-of-wav shall
remove it from that ri�ht-of-wav durine the next sc;heduled excavation. unless this requirement is waived
bv the Director.
17
Ordinance No. 97-17
Section 25-1029. Reservation of Re�ulatorv and Police Powers.
A Permittee's or re�istrant's ri�hts are subiect to the reeulatorv and nolice nowers �f the Citv to adont and
enforce �eneral ordinances necessarv to nrotect the hPalth. safetv_ and welfarP of the nublic.
Section 25-1030. Severabilitv.
If anv section_ subsection. sentence_ clausP. nhrase. or nortion of this Ri�ht-of-Wav Management
Ordinance is for anv reason held invalid or unconstitutional hv anv court ar administrative agencv of
comnetent iurisdiction_ such nortion shall be deemed a senarate. distinct. and indenendent nrovision and
such holding shall not affect the validitv of the remainin� nortions thereof. If a regulatorv b�dv or a court
of comnetent iurisdiction should determine bv a finaL non-anz�ealable order that anv nermit_ rieht ar
reeistration issued under anv nortions of this Rieht-of-Wav Mana�ement Ordinance is ille¢al or
unenforceable_ then anv such nermit_ ri�ht or registration granted or deemed to exist hereunder shall be
considered as a revocable nermit with a mutual ri�ht in either nartv to terminate without cause unon givin�
sixtv (601 davs written notice to the other. The reouirements and conditions �f such a revocahle nermit
shall be the same reauirements and conditions as set forth in the nermit. ri�ht or re�istration_ resnectivelv.
excent for conditions relatin� to the term of the nermit and the right of termination. If a nermit_ right or
re�istration shall be considered a revocable nermit as nrovided herein_ the �ermittee must acknowledee the
authoritv of the Citv Council to issue such revpcable nermit and the nowPr to revoke it. Nothing in this
Ri�ht-of-Wav Mana�ement Ordinance nrecludes the citv from reauirin� a franchise a�reement with the
annlicant_ as allowed bv law_ in addition to renuirements set f�rth herein.
Section 25-1031 Anneals.
Decisions of the Director in the interoretation and enforcement of this Right-of-Way Mana�ement
Ordinance mav be a�pealed bv the a�nlicant. re�istrant or ermittee to the citv council bv servine written
notice �f a reauest for an anneal on the Citv Mana¢er. The Citv Manager shall thereunon schedule a
�ublic hearin� on the anneal before the citv council and give notice of the time. nlace and date of such
hearing to the annealin� nartv no less than ten (101 davs nrior to the hearin�.
Section 25-1032. Waiver.
The Director mav waive anv or all reauirements of Sections 25-1003 throiieh 25-1005. 25-1006 through
25-1009_ and 25-1020 if comnliance is not deemed to be reasonablv necessarv_ in the discretion of the
Direct�r. to serve the nurooses of this Ri�ht-of-Wav Management Ordinance. The decision of the Director
not to waive anv such reauirement is not subiect to anneal to the citv council_ Waiver of nrovisions of
Sections 25-1003 through 25-1005 and 25-1020 mav he rescinded bv the Director at anv time unon written
notice to the nerson subiect to the reauirement..
Section2. This ordinanc.e sha17_ becam� effective Janu�ry 23, 199�3,
18
Ordinance No. �37-17
Adopted this 15th day of i)ece,�,r 1997.
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Mayor 0
ATTEST:
Clerk
DateofPublication Oct�t�- i._g�,�, ��d �cember 24, 19�37 J�nuary 21, 19�3�
with modifications
Effective Date Januarv 23. 199R
(Underline indicates new matter, brackets indicate matter to be deleted.)
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