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08/18/1997 CONF MTG - 4794� ` CffY OF FRIDLEY CITY COUNCIL CONFERENCE MEETING August 18, 1997 - 7:00 P.M. Conference Room A (tJpper Level) 1. Discussion of Need for Additional Architectural and Construction Management Services for the Fridley Community Center. 2. Rental Property Ordinance, 3, Telecommunications Ordinance. 4. Adoption of Model Right-of-Way Ordinance. 5. Other business. Adjourn. uoi lo� � r to: �o UulG 4yU Laau � tfuLJ�l'All&LAl2SON Wayne B. E-Iolstad Russell' L.C. Larson John L. Linde(I Kai-en Hill Fjeld � i Real Property Law Specialist August 15, 1997 HOLS'('AD AND LAKSON, P.L.C. Attorneys at La�v 3535 Vadnais Center Drive, Suite 130 St. Paul, Minnesota 55110 Telephone; (612) 490-9078 Facsimile: (612) 490-1580 Dr. William Burns City Manager City of Fridley 6431 University Avenue N_E. Fridley, MN. 55432 RE: Rental Code Enforcement issues Dear Dr. Burns: l¢j 002/003 Of Coansel Fredenc W. Knaak* ° Also Licensed in Vdisconsin & Colorado BY FACSIMILE AT 571-1287 & U.S. MA1L Ht your direci�on, i tiave been warking with Chi2f McKasick anu ths Fire Department on a number of issues related to the :enforcement of the Ciiy's Ren#a! ��e. As �?!� of th?± process, and after our meeting at the Fire Hall with the Chief and staff, 1 agreed to review the Rental Code and rnake suggestions as to what modifications might be appropriate for the Council to consider. � As 1 indicated at the meeting, and can now confirm. my overall review of the Rental Code has !ed me to the conclusion that it is weil drafted and requires only modest updating and two minor clarifications. In a separate �discussion with Chief McKusick, I am advised that he will be proposing the update language. My suggestions follow: 1. Administrative Search Warrant Authorization. There is some concern by the Department that landlords in the City may be beginning to balk at compliance and are insisting on wa�rants for any searches, even in instances where tenants may be agreeable to providing access. � - I am recommending inclusion of language in the ordinance that expressly authorizes the issuance of administrative search warrants. This practice, which has been in common use in other parts of the Country for some time, +s now gain+ng increasing acceptance and use in Minnesota as well. Minneapolis, for example, has used this practice successfully for a numbe� of years. I would suggest the addition of the following language in Section 220.15 of the Code: �.� 2 Ins�.ections of any dwellinq or dweNinq unit mav be voluntary, with the permission of fhe tenant obtained either in writinq or by failure to abject in a timelv matfer to the inspection after notice and sufficient time to resQOnd. In addition the CitY Manaqer or Compliance Offic;al may obtain upon showing of cause an Administrative uoil��yi i�:�y "U-ot� 4au 1�oU HULS�L�AU&L:�ItJUi� l�cUUJiUU.S Or. William Bums August 15, 1997 Page Two Search Warrant that shal! specifv the violations beJieved to have occurred at a oiven dwellin4 or dwelling unit and limiting the search to those specific items or conditions believed not to be in comoliance. {Renumber the subsequent paragraphs accordinQiv 2. Landlord Sanction Issues. Carl Newquist has brought to our attention the newly enacted provisions of Minnesota Statutes Section 504215, which prohibit cifies #rom, among other things, penalizing landlords for tenants making calls in domestic violence cases. While, on review, 1 do not believe the City's ordinance to be in vioiation of the p�ovisions of this legislation, 1 would suggest the foiiowing language fof purposes ofi clari#ication in Section 220,14 of the Code: 220.14. CONDUCT ON LICENSED PREMISES. i. It shall be the responsibility ofi the licensee to abate and take any other leqal and aaproNriate action following condt;ct by occupant�s) or gueSts ofi tne occupani(s) which is in violation of any of #he following �tat�t�s �r ��nw►,�A�: A. ... (. ... other law enforcement aqency for the ourpose of �eportino violations of any of fhe fo�e o�ing statutes or ordinances. It is my belief ihat with these relatively minor changes, the Rental Code would successfully pass judicial scrutiny, if challenged. I will be prepared to discuss these suggestions with the �nci� on Monday evening. -� Sin rely,: � I rederic W. Knaak • Fridley City Attomey �� ,. �. . .. _ -< INTEROFFICE MEMORANDUM TO: WILLIAM W. BURNS CITY MANAGE �� FROM: CHUCK MCKUSICK, FIRE CHIEF DATE: AUGUST 15, 1997 SUBJECT: RENTAL PROPERTY ORDINANCE Staff recommends consideration of the following amendments to the Residential Rental Property Maintenance and Licensing Code, Chapter 220: A. Code Chapter 220.12.2.A. Automatic Alarms. Add to the paragraph: The alarm system shall be inspected and tested biannually in accordance with National Fire Protection Association Standard 72E by a qualified technician and the test result immediately mailed by the testing service or licensee to the City's Fire Marshall. Reason for Chan�e: There is no current provision requiring periodic testing of the alarm system designed to warn all occupants of a fire. The rental property inspections average once each four years and do not include a fire alarm system check. B. Code Chapter 220.13.1 Licensing. Delete from the paragraph the sentence: Upon receipt of a properly executed application for licensing, the Compliance Official and\or his�her designated agent may cause an inspection to be made of the premises to determine whether the structure is in compliance with this Ordinance. Reason for Chan�e: The inspection program is structured under Chapter 220.13.6 which allows the Inspection Department to schedule inspections for new applications and license transfers. The Inspection Department dces not inspect when an application for license is received, particularly since all licenses are renewable in August each year. C. Code Chapter 220.13.09.B License Suspension or Revocation - Hearing The Code specifies that an appeal hearing may be held before the Council or a hearing examiner appointed by the Council. Council may wish to now consider whether it prefers all or certain types of matters to be heard by a Hearing Examiner, and if so, who that Hearing Examiner should be. M � ` • ♦ ^a. D. Code Chapter 220.20 Appeal Delete the reference to Chapter 6 of the City Code, and substitute Chapter 220.13.09.B of this Code. Reason for Chan�e: Chapter 6 of the Code is "Commissions". Since there is an existing appeal process with Chapter 220, staff recommends its use. , *� . MEMORANDUM DEVELOPMENT DIRECTOR DATE: August 15, 1997 TO: V Wiiliam Burns, City Manager c� � !� FROM: Barbara Dacy, Community Development Director SUBJECT: Summary of Telecommunication Facility Analysis Extensive research on the regulation of personal service communication technology has produced the following findings for City Council discussion: 1. Two options are proposed: A. Option A, si#e specific regulatory approach. Under this option, the City would adopt an ordinance which would specifically identify the sites eligible for wireless communication facilities. The most recent thinking was to identify seven municipal sites as the only sites for providers to use. Additional privately-owned sites could be added and would be based on Weaver's recommended analysis (Attachment #1). The legislation required to accomplish this approach would be a zoning ordinance amendment and a new chapter in the City Code regulating these facilities. The providers would pay for and install the poles, antennas, and equipment and pay rent as in the APT lease. If a monopofe is construcfed, the providers would be required to provide space for two more providers (three leases total). B. Option B, initiate a telecommunication utility. Under this option, an ordinance would be passed declaring the need and purpose of the telecommunication utility, and authorize the City to engage in activities to further the stated objectives. Activities would include leasing existing municipally-owned sites to providers, acquiring and/or leasing sites from private property, collecting revenues, and hiring a telecommunication utility administrator ,< Summary of Telecommunication Facility Analysis August 15, 1997 Page 2 to act as the City's agent (lease revenues would pay for the administrator). The City could either assume the installation costs for antennas and recover costs from lease revenues or require the providers to install the monopole and provide a rent credit. Co-location wouid be required. 2. A matrix summarizing the advantages, drawbacks, underlying philosophy, and legal implications is attached for each option {Attachment #2). 3. Both options provide the City with the most amount of cont�ol in locating these facilities. � 4. Both options are more restrictive than other metro cities' ordinances (see Attachment #3). A majority of cities have adopted an "open market" approach, whereby th� fac;liti�s are allowed by conditiona! ::se rermit and subject to severa! performance standards. Roseville and White Bear Lake, however, require that the providers first prove that locating on municipally-owned facilities is not feasible before locating elsewhere in the City. Roseville has hired a consultant to assist staff with the "technically feasible" evalua#ion. If locating on a municipal site is not feasible, then seeking a private site is permitted as a conditional use permit in certain districts. 5. Option A will produce additional revenues for the City. There are two providers interested in monopole installations right now. If they were moved to City sites, there is already an additional $24,000/year in revenues. Staff is working on the costs and revenues for one monopole installation and will have examples prepared for Monday evening. Option A may not be as lucrative as Option B since Option 6 would mean the City could coilect revenues on all sites. The City has a finite number of municipal sites in Option A, and they will not provide for all of the future market demand. Both options, however, may replace a lost revenue stream if technology advances eliminate the cable franchise fees. 6. The underlying philosophy of Option A can be clearly related to typical public purpose objectives. Option B's philosophy mixes both public objectives and revenue-producing objectives, similar to those we face in siting liquor stores. 7. Both options risk lawsuits from providers and private property owners (what's new?). The City Attorney feels the respective ordinances can be properly drafted. 8. Option B, based on research thus far, has not been implemented by a city (in Minnesota, for sure) unless the city has a utility already in place regarding other . Summary of Telecommunication Facility Analysis August 15, 1997 Page 3 telecommunication facilities (Lakeland, Florida, is an example). Since there are no local examples, it is hard to advise the City Council on not only the risks, but also the advantages. Unknown at this time is the long-term impact of satellite technology on antennas and whether it will reduce the need for them. For the next 5- 15 years, however, the uiility could work out as a tremendous source of �evenue fo� the City since all providers must lease from the utility. Unknown is exactly how much more revenue Option B will generate over Option A. In addition, there may be an effort by lawsuit or legislation to prohibit the City from operating a utility. Unknown is the cost to defend a challenge. 9. After reviewing Weaver's preparation of an initial economic analysis, it is clear that more strategic work needs to be done as to correlating the "assets" (the sites) with the economic objectives of running a revenue generating utility. Option B requires a business pian with a strong sources (revenue} and uses �costs j component anci pro forma. More importantly, the pro forma has to be based on a plan as to which sites would meet the needs of the providers while meeting the City's objectives of minimizing visual pollution and maximize revenues. Weaver had estimated that 17 additional antennas could be located in Fridley. The estimate was based on the number of FCC licenses issued to providers and assuming that there would be 14 PCS and 3 cellular antennas. Additional smaller antennas for paging services or emergency services are also possible. If a m.onopole contains up to three providers, up to six monopoles could be constructed. Realistically, some of the 17 antennas will be tocated on water tower sites. Staff recommends a more extensive plan be prepared by a consultant who has direct experience in telecommunication business plans. Two consultants from other states have been found and are interested in completing the work. A draft scope of service is attached as Attachment #4. The plan must be completed within the next 30 days. The Charter requires a utility to be approved by the voters prior to enactment by the City Council. The language for the ballot must be prepared by September 19, 1997 in order to be ready for the first Tuesday in November. 10. No matter the option chosen, staff will begin work on the ordinances required for the site specific regulatoty approach. This will be the minimum work needed to enact the proper controls prior to expiration of the mora#orium (see Attachment #5). 11. Meetings with the providers will occur as soon as possible regarding the site specific app�oach. They'will likely object and will request that sites be added or a Summary of Teiecommunica#ion Facility Analysis August 15, 1997 Page 4 different approach similar to other communities be adopted. Weaver has identified other privately-owned sites which could be potentially added if needed. RECOMMENDATION In summary, staff will begin work on Option A according to the attached schedule. The ordinance will include the performance standards attached plus a requirement to locate on municipal sites first (Attachment #6). !f the City Counci! direct� staff to pursue Option B, the ordinance establishing the utility will also be preparFd in order to meet the required schedule. A consultant would also be retained with the c,�a� �f �Oi'ii�i8iiitt� ti2 business plan as soon as possible. BD/dw M-97-352 � I j � �� i !'I I 1 OP � ,:_�:.�� w w f l\ s � T. cJ 7 s a. n�. � � U % � a ri. C > F v < }; �-r� CITY OF FRIDLEY ZON�NG 1V�AP � �°ix ra ^� .a� ��`�`'�� 'l1t��„9+^r}:l � i I I l t�F I li Nt; I A�I I';\I I �+I;.., � � ,y..t ; ,;.�._4zb' ��tF r I . fL ; �'"�, � � ��~:� a;, � � ,�,:� �,N '?�111�� "t' �23 � � ' i ; ►�� t,� �, � 4�� „i ii� � � � r� ,�;, '�x , � �.Q . � �' I v y�'+�+{{�' t 1 ��"', ��{� � � �� ` � `-�� 4�t � , . � �;�,1 �� *}� ,!� ' ' � : , ,, f � ,�; ;�' ,a - / ' � ' --i- ; � '��'r�,�,� � �� J{ � �� ,�� V �' {'m� ��1' I l i 1 Y t° .�._��.7�.2 '� p. 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'c;,_, _ .� i �/� �� ,{,l �"'J pR - � � � .� ��j� a� : ( I'I'Y OI� � y�� I S/ r?,(k %� �.. _ _ � "', '� �t � "-�li- .�,: ,.. . � �% . coi.u��iain iii•:iciri:� DIS'I'RICT LEGEND � C.IIA)CALlU1SO.1L@ P-IO.W.IAMILYUVITt � C.iC�Np1ALA1�IMt1t �c,y�+ I�.fiWOl�nfll,t'tr}R�x w � � f..fc11N101ALSllO�rt`�C j4i/�Tj Il-}f.1tM[R�LMnTT.��RnT� �.w�� Rsau IiflR C.RIC[VptALOlfIC6 � R-�FMMJ[pOM1t��Rf�5 � ■ MATIG ' pRM11.ROAlIF �� M-IIICMLYpVS�A�AI � �.I(il'I�[�ARl.M81�HM�(1(lnllftc :'."..� M.l11MW1`TIMTRI�L � R-iRO.IM�'RI,O�MRVTi�I<lPl('T �M.10LTDOORIIlT.0.(�D �/vIO.iR.fqD�c�Y i�v� �rnm�.�cvenurmc ;��`✓:o.�n<nnrk�nr.r. � nmrusweoumrnssu�n�n-r !. �'' o.ECxmce�.�xK.. ATTACHMENT #1 rtt '� � ; % !-� i�; ; �' 1 r `'_� __ � _ ;. i �, l � J �- -- _ �\ I - � \ �� . -r � '� Frst Municipal Tele�corrrnunicat�ons Instailations Properties O�nmed by the City of Fridiey APPEI�IC�Ik f-� i�nssi.hle Antenn�e Loc�tions i.n the City ofi Fridley, M�►. N�.am�ar Kev ..�_.......""' ................«...._.._..................._................................_.....�............................».... ...............:..........r.r.:::^ ...............»... ............................................................................_._�...._..._»..._..................._._�._.....___ ............._............. IVum�ers uwnershi� -- - ._I-- - ..�.. 10C1 �c� 1.99 �lan-�riva�:e land 200 to 299 Nan-�riva�e buildings etc. 300 ta 3�� Pri.vate l.ar�d GQ� �a 4�9 Pri.vate �ui�.clings etc.. �i_arv�Y ResGalts ..........._ ..........................._....._....._..............................................................................................:::____�,.,...:•:::::-:-::--:::::::. �....�_�...� �-�._...._.:::� :- �.:::::: �:-�:::::::::::::::-::. ::: �:-::::::::::_:� ::::: �•::- ..... . . . . _ �f�.amber Pf�m� � ,Acfciress �Phon� 1'ri.�nk. Acce�c .......................................__..._........................................................................................... ._ .. ..... - .............__.._......................................................_..........__............................................_.........._..___._................__..............____.�-____...__ ._......____.._........._._..___..........__._........_....... 1.C1Ct �i�_ani.ci.h�l. Cyar�gA Yes � 4On ?1..s� ,, Ave 1.C11. Fri.dl.�v/Anok.a B�]..J.. Yes � Fi� l.cls 20n Mir�ne�r�c�l.a..� l�a�er Y'es P1.�nt; EaFt Ri.v�r Ro�r� ............. ..................................�._..._............................._..._........._.............................................__....__.........................._.....__ _.__......._...____._�._....._.__...._........_.............._............._.............._..._. �2_Cl:� S� . P��1 W�ter f'�.am- Yes �S..nc� PJ..�n� 7��h AJ..de�n I.Jay �C�i Fri..r_(J..ev l.,le1J.. Hai_��e Nn # :1.. �31. c� h�ra._ L.�ne .....................................................__............._........................_......................._.................................__....__................................_ __.................___._.............._...................._.........................._................ :�C�� Fr�_�lJ..�Y (�JeJ..1. & Fa..1- Yes � �:r�t;�..r.,�n f'l.�nt �9� h Ave ,. & Eas� Uni.v., Ave 2Q6 FridJ�eY R�sivc�ir Yes 53ci,. F� Mat�:enc��rr� �Ct7 Fr�..dl.eY �� Fire Yes ` 5 t� �� x. c� r� �3G.:1. C�r��r�l. Ave,. ;�CJr� Fri.cll.�v Loaster Yes ��-i.on 1.1.31_ �3c�l.. .A��e., 1....... ...............................:.........._._..._......_.............................................................._......................_...__......................._._... _...........:._.__._....__............._......._..................._..................,.................... �age A3 .��:::::::�:�:::::::� � :::::::::::::::�::::�::::::�:::::-::::�:::�:-�::::::::::::::��:::-::::::-:�::::::::-�..--::-:..___.__...�:-::-:::::.--::-::-:::.-�---�:�::�•� �.� �-_��::�•�:::�:::�:,::::::::::::::::::..-=:::�. �..�;;r... �lumk�er I�lame Sc AddreGs Phane Trunk. Acr.es� I._._ ...................:..........._..__._.__...__..._.............1..._..................:.............................._.... ._._.._........__.._�_._. _.._._.._........._.......__.,._:._..._____:__.___ 2D� Fridl.eY Water To�er Yes HwY ., �5 21C� �"ridl.ey Commons Yes (�I�ter Tawer, Pl�nt �nci land �1.s�t., A��e east of 7t�h Ave. :t1..1. Fri.cll.eY Weli #1.?_. Yes ?3 x Aue �ic HwY.. 65 2�i �ric�leY I�lell #t1.3 Yes 51st,� WaY & Ea�t Ri.uer Roaci 21.3 H�v�*s E1.�;mentarY Yes �aha�J.. �1.� F,: Mi.ssi�sS..�K�7.. 21.4 R., L.,, St��enson Y�� ']..em�nt�rv hC1�.f..t F��t Ri.ver .............................................._...................... f� a � r_!.._............................._.._...�.__.._.............................._....... ............_...�.___..._....................................................._...............,... �1.5 FriclYeY Middle Yes � c h c� c:� ].. �1.f_l�l InI�G�- Moor� ...�..�..�. L. a k. �: C� r a. v e � ....................._... _...................w.... �_,......_�...�... M..._. _..�.......,.�......�.......�. .. �1h Fri.dl.eY Hi.�h Yes � Scfic:�c�J.. hC1fJCt l•Jes�: Moor� l.._�k.� C°�ri..v� 21.? C:amm�ana.�:Y Ecfuc�ti.nn Yes Cer�� er t�C��?5 t�les� Moc�r� L..c^�k.c� ��r:I.v? ';�1.R �"rir..l1.�Y Hor•k.eY � I�lo F"oo� b�:l. ).. �torag� C:her a. l�ar�e 30C� Undeve.lo�ed Land Yes 59��1 M�in Street: 3C��.. Mec�tror�i.c Cor�., Yes 7f;1C.iC1 C.e n� r�l A�rp „ ......................................................_......_..__..._.... .................:..........,................,.....................___.._..........................................__. ........................_._....................................,...:..........._..........._._....._.._._........... �1�:? Gn�ri �':r_�r�orat:i.r�n Yes 1.4.t�(.� 73r_!„ Aveni..ac ►� i� ► �'� . pa9e A4 ..:::::-:.�.•::: :::::::::::::::::-.�.r:=•�:::��::::�::::�::::::::..,.;..;......:::•::::•:�::�::�::::�:::::�:�.:�____.--�....�.:�_._..._� _._..... �.___..�..�..._..._.__.........:::��::::::::::�.�:::�:�-�::.........._.._.�.��... .............. . .._.. ____-___......_ ....._._..._ II�IG�m�ier Name & Adclress Phone Trunk. Ar.r.ess L.. - ._....�.�, ..I... ....._.,...__......�..._. - - __....._�.......,,.._.�.... 303 Und�vel.oqed Land Yes 5outh c�f C�sborne Rc! be�ween H�y. 65 and Cen�r�J.. Ave. 4DQ P�r�ons E1L-'Cti"1C Yes h�� M�:i.n Street� 40�.. 5heet Metal Conriec- Yes �c�r� 5�5[� M�i.n Street 4.D7 �Ic�rthr�art Inclus�., Yes 58�0 Main Street 4Q� Hame be�at Ye� 5h6C� M�in Street G,C�G. Hc�l.i.cl�v �,t:ore Ye� [,.05 A1.1Tr mp Stc�rage Yes 54C1�1 1 (�i.n S�reet .........._........_ .................._........._..._............................................................................._..._..._____..............._.................____ ...._......_........_._...._............................................................................................ �.Oh KGar� M�n��t��cturi.ng Yes �2�C1 M�in Street �C1? "fimm� rm�r� Fi.nishi.ns Yes 57_.5�1 M�i.n Street �C�B T«�r� Ci.�y C�ie C�st- Ye� �..n� ......._ ........................._._._..._._.____... ......................................................._.____..�..__.._._.M....�._..._ ___.. 4.n� hi., F�„ �'�.�1.ler Yes S�CF.C� M�i.n Street 4.�_Ci Cl.�dwi.n YPs 51.�.0 M�in Stree� ..........................................__..__......._...................................................................._.._......._._______..........._......_._._.__ ..._.........................._........................................................................................ G.1.:I. Forc! f?�m�n�.afar..tur- I Yes i.. n � � 412 AF'T �;i_a��l.y Ye� �11.C� Mai.n Street 41.� Mur�hY W�rehnuse Yes �i.7��1t�1 M�i.n Street f.2 �i_a:i.1.cl7:.ngsl l,.J..l+ S�fietran Yes 4.�C7f_1 M�7..r� Street �.1.5 (;Pneral Mills Yes (�r�:i.n �J..�v�tor.sl (�lumber N�me & Address Phane irunk. Acces� 4.1.h B�I�F Antennae 7ower R[c� 39QQ Califc�rni.� 417 BNSF Light Tower No l+l+th Aven��e G.1.R �'MC W�ter Tower Y�� .1.9 Longvi.ew Fiber Yes 42C1 M�l.�c�n Electrir_. Yes :�5�f1 Gommerce L.�ne 421. Cc�mmerc� Park �?f- Yes f ice Rl d�:, 7:�� l.ln:i.v.: Ave.: :�vr_.e ,. Roa�+ G�� Sam'.s CJ_�_ah Yes �?1. �� r I��i n S� r� et� 423 At;RC�-K Yes � �1.�t; � Mai.n 5�reet G.2G. Am�ri.c�n Excelsi.nr Yes £�1.s� & M�in S�r�pt G.25 Gr�:han�edic Assc�c., Yes 82ciC1 t1ni.�r.: Ave,. 5v'C� ,. Ro�c! � ........................................................................... ...........................................................__._._...._..............................................._. ..........................................._........._.................................................... l��t=� Tat�..nc� C:�rac? H3.gfi Yes Sc:hno.l.. G.27 � Hi.l J�wir7d Cent.�r � Yss �C��.. Hi.1.l.t�,inr.i �.2t� l.ln7_�y Hospit�J. Ye�• �age A5 1. What would it do? 2. What's in it for the City? 3. Underlying philosophy of approach THE OPTIONS Site Specific/Regulatory • Identify specific sites • Prioritize municipal sites • Ordinance would have to be amended to add sites • Set perFormance standards • Controllocation � City maximizes revenue from its sites • Eliminates special use permit burden • Typical public purposes; safety and aesthetic impact Utility/Business � Lease to providers � Acquire/lease additional sites • Positioned for control when antennas get smaller or technology changes • Set performance standards • Total controi of sites • Receive all revenues • Kepiace any iost revenues if cable issues change • Unknown advances in technology may give City additional revenue • Mix of public purposes and maximizing profit ' 4. Drawbacks • Providers see it as •"Business" decisions may monopoly conflict with public purpose issues • Don't have enough municipal sites for long- term • Residential areas may be eventually impacted • Satellite technology may replace need for towers • Still looking for another municipality who has done it • If no one has done it, there are unknown risks • Federal and state laws may change regarding telecommunications ATTACHMENT #2 5. Lega! issues . Ordinance must be carefully drafted regarding private sites Risk lawsuit from providers and private property owners May be easier to defend than site specific Risk lawsuit from providers and private owners C�THER ClTIES' REGULATIONS ROSEVILLE � Commercial antennas shall connect to and use city tower sites if technically feasible • City retains OWL Communications to review feasibility • City sites are a permitted use in Business and Indus#rial districts, and a conditional use in others • Commercia! antennas may only be located in Business or Industrial districts as conditional uses BLOOMINGTON • Antennas are conditional uses in all districts except two • Height bonus if two or more providers are iocated on one structure • Co-location requirement for new antennas on existing towers or buildings when feasible • Adopted policy for use if city-owned facilities for antennas and conducted an RFP process to providers for eight city-owned sites WHITE BEAR LAKE • Commercial antennas shall connect to a municipal an#enna site if technically feasible; applicant has burden of proof • Commercial antennas are restricted to business warehouse and industrial districts and require a special use permit LAKEVILLE • Commercial antennas are required to obtain a"CUP-PUD" in order to allow two "principal buildings" on one lot • Providers to-date have avoided this process and instead have leased from sites from the city (shorter process) • Lakeville's lease also requires five years of the lease payment "up front" � City has received $350,000 and uses funds for water tower maintenance ATTACHMENT #3 Other Cities' Regulations Page 2 COON RAPIDS (moratorium still pending) •"PermiY' must be obtained from city council for commercial antenna in residential districts • Other locations outside of residential areas are permitted, and city must issue or deny permit within 15 days • Performance standards include requiring co-location on approved site within "search area", or monopole design which is painted a color to be compatible with surrounding area LAKELAND. FLORIDA • City has a"Department of Electric" and water utilities • City has developed its own fiber optic system in electric service territory • Business plan document does not refer to wireless PCS issues POTENTIAL SCOPE OF SERVICE FOR BUSINESS PLAN CONSULTANT Phase I contract to be completed by September 15, 1997. 1. Complete a pro forma analysis of potential wireless facility sites and project revenues and costs on five year increments as far into the future as reasonably possible. 2. Separate pro forma analysis into the following categories: A. Selected municipal sites (sites to be provided by staf�. 6. Selected municipal and privately-owned sites {sites to be provided by staf�. �. Other suggested sites not anticipated by �ity. 3. Create a plan as to which sites should be prioritized over others to accommodate demand, maximize revenues, but mitigate visual pollution from residential areas. 4. Recommend a process to solicit providers. 5. Identify other potential business activities for a telecommunications utility which may also produce revenues for the City. After careful review of Minnesota telecommunication and franchise requirements, and process. 6. Recommend as to whether initiating a"utility" for the purpose of leasing si#es to cellular/PCS providers and other uses is economically worthwhile. 7. Identify a fee schedule and process which would retire the cost of this and subsequent consultant costs. Phase II contract would be implementing the recommended strategy. ATTACHMENT #4 , -:. SCHEDULE OF TELECOMMUNICATION LEGISLATlON 1997 Draft ordinances by Brief review by City Council (post-meeting) Cable Commission review Submit ballot language to printer * City Council resolution to place issue on ballot * September 3, 1997 September 8, 1997 September 16, 1997 September 19, 1997 September 22, 1997 (last possible date) Send ordinances to Focus News, advertise hearings September 23, 1997 Send ordinance draft/notice to providers If ordinances affect sites not previously evaluated, notify surrounding property owners within 350 feet tVleet with providers as requested Recreation Commission review Planning Commission public hearing City Council Conference meeting (if necessary) City Council public hearing Referendum decision * City Council first reading City Council second reading ** Submit ordinances to Focus News Publish in Focus News September 24, 1997 October 1, 1997 September 24 - October 8, 1997 October 6, 1997 October 15, 1997 October 20, 1997 October 27, 1997 November 4, 1997 November 10, 1997 November 24, 1997 November 25, 1997 December 2, 1997 Effective date of ordinance January 1, 1998 * These tasks not needed if a utility is not pursued. ** There is another City Council meeting in December (12/15) but second reading on this date would require that the ordinance would have to be submitted to the Focus News the week before in final form so it can appear in the paper on December 17, 1997, in order to meet 15 day effective date waiting period before morato�ium expires on December 31, 1997. ATTACHMENT #5 PERFORMANCE STANDARD RECOMMENDATIONS Once the regulatory approach has been determined, staff recommends that the following performance standards be adopted as part of the proposed telecommunications ordinance: 1. Monopoles will be given first priority over lattice-work towers. Lattice-work towers will be approved when located along the railroad corridor or adjacent to a similar utility pole or structure. 2. Monopoles will not be ailowed to be attached to buildings. Aesthetically, this is an unusual sight. Antenna arrays wi11 be the only permitted structure to be attached to existing buildings. Their height shall not exceed 15 feet above a parapet or the highest point ofi the structure. 3. Towers will not be painted for the following reasons: a. Paint can draw more attention to the pole. �. Continual maintenance may be difficult. The City would nePd #o be assured that the paint is a long lasting, factory-finished type. c. The City could risk criticism in attempting to determine a blanket approach for all sites. d. Unpainted Installations may blend in easier with adjacent power lines or utility structures. 4. The equipment storage facility located at the base of the tower shall be brick and shall not be fenced. 5. A minimum lot area has not been determined; however, the consultan# has suggested the app�oach of an adequate "crumple zone" versus an established minimum area based on the height of the pole. Monopoles are designed to break at the top versus falling over from the bottom. A structural engineer will need to ce�tify that the design of the monopole will accomplish this. Lattice-work towers are designed to be self-collapsing structures. 1f a pole or tower is located near an existing building, the provider will be required to receive permission from the buiiding owner to place the tower in such a location. ATTACHMENT #6 ... , � PERFORMANCE STANDARD RECOMMENDATIONS PAGE 2 6. Staff recommends the foilowing site standards for each installation: a. There shall be no glare from lights onto adjacent properties. No lights or signs shall be located on the tower. b. The lease area must be located in a side or rear yard. c. The lease area may not cause noncompliance with the parking or lot coverage of the primary use. d. The boundary of the lease area shall be located 10 feet from the side or rear lot line. This 10 feet should accommodate most easement areas, provide separation for maintenance, provide separation from the property line, and this setback is consistent with the sign code setbacks. e. The provider shall provide a minimum of one parking stall for service vehicies. 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I �� \' ;_� �� `';; 4 �� ''�� ,,Y�- `1 � , `�" : y � �}, I ��1� I_ � � `�� /� J, ,%7t. j i , � 'C�'I �I � , � �I �I ('I'I'Y 01�' M1NN1�,!�I'Oi�i; l�l�% �,1�� ' � a,< m .�m��, na-� i,uc;A� ¢va�als°rr.son�, na -z oe�tnw �vniu:5tflu:er � I na -� c�a v�ace��€e or�rr. gig. orr�. ;_ a� �a�rb9.ac o��a�io.a-�ew� 1�31C1�°IeL1�N�7SDd�NO'P�DC10'�H,(➢4'AiiCtO"P I 9- i nvm�? raxx wwicu.notisan�>t� s - z nr!nsvu.t.oa�naarvr rnsareicr ; o�tr�t.00�v��,vv !D-1 NI,OODYI11KCf! iD - 2 Cid(�P1CA1, ,i7i7t�! �, �( )�'NPYf.7'I � ia,111> f�It �EVR' 712 0;'q (.�P I'K'P.4I. ft 1Y'OR/).9 ltfl.4l:/7 ()t�l ()£!f)lAIAWt'9: N(�.IZ7:iNU ZON!}V(:IMAP 7:7'!7;(ryY➢/p; IZ4"il: /AAJ. 17, t05RT()f:L'f7dF,R fNIP7l A1.➢. �9 A �I: R!9)YPJ(: G){ql)P�51AIbR'P.� AC�1DWl7't� � P/I� /:!'A'IY"17Vf: /� S()7 � (�i��f��:6B ��9� � � , __ �,cA�e v:eoan � � _ � � � --- ..� ,.�— _ __. —_— ------ ----� ; �� _— City of Fridley MEM TO: William W. Burns, City Manager�� A� FROM: John G. Flora,�ublic Works Director DATE: July 23, 1997 SUBJECT: Right-of-way Ordinance PW97-198 For the past two years I have been woxking with the City Engineers Association of Minnesota (CEAM), the League of Minnesota Cities (LMC), the Suburban Rate Authority (SRA) and the State Legislature to adopt a model right-of-way ordinance to protecf the rights of the cities to manage the right-of-way. This was a result of the deregulation of the telephone industry and our inability to franchise and deal with the increased number of utilities interested in providing telephone services. LMC has distributed a model ordinance as a result of our efforts and negotiations this past winter. The ordinance specifically identifies the city's right to manage the right-of-way, it provides for registration of companies to work in the right-of-way, it requires reporting obligations, mapping data as well as the issuance of permits, specifically excavation and obstxuction. These permits allow for the receipt of a disruption fee and also, with the exception of telephone companies, provides for a use fee (rental) of the iight-of-way. The recent legislation calls for a task force to be established this fall and the submittal of standards regarding the fee calculations and construction requirements foz telecommunication activities. The recommendation is to be adopted by the PUC by March so that there will be a set of rules and standards to be followed for next years construction season. As the model ordinance applies to all underground utilities, sewer, sanitary, water, gas, electric, cable TV, heating, etc., it would be my xecommendation that the City adopt a model right-of-way ordinance this winter and incorporate whatever standards are distributed by the PUC next spring so that we will be in a position to establish our management position for the next construction season. If you need a copy of the ordinance, I do have one available. Recommend that we adopt the ordinance this winter for spring implementation. JGF:cz � TABLE OF CONTENTS LMC/CEAM RIGHT-OF-WAY ORDINANCE SECTION PAGE Sec. 1.01. Findings and Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.02. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.03. Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.04. Utitity Coordination Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.05. Registration and Right-of-Way Occupancy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.06. Registration Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.07. Reporting Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.08. Permit Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.09. Permit Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.10. Issuance of permit; conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec.1.11.PermitFees ........................................................ Sec. 1.12. Right-of-Way Repair and Restoration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.13 Joint Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.14. Supplementary Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.15. Other Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.16. Denial of permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.17. Installation Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec.1.18.Inspection ........................................................ Sec. 1.19. Work Done Without a Permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.20. Supplementary Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.21. Revocation of Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . � Sec. 1.22. Mapping Data . . . . . . . � . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.23. Location af Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.24. Relocation of Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.25. Pre-Excavation Equipment Location . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.26. Damage to Other Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.27. Right-of-Way Vacation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.28. Indemnification and Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec.1.29.Future Uses ....................................................... Sec. 1.30. Abandoned and Unusable Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec. 1.31. Reservation of Regulatory and Police Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . Sec.1.32.Severability ....................................................... 1 2 5 5 5 6 7 8 8 9 9 10 11 11 12 12 14 14 14 15 15 16 17 17 18 18 18 18 19 19 20 20 OPTIONAL PROVISIONS FOR IMPOSITION OF USER FEES . . . . . . . . . . . . . . . . . . 22 SampleRegistration Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Sample Application for Installation or Repair of a Utility . . . . . . . . . . . . . . . . . . . . . . . . . 26 Model Ordinance LMC/CEAM Right-of-Way Ordinance City of , County, Minnesota An ordinance to enact a new Chapter of the Code of Ordinances to administer and regulate the public right of way in the public interest, and to provide for the issuance and regulation of right-of-way permits THE COUNCIL OF ORDAINS1: Chapter _of Code of Ordinances (hereafter "this Code")Z is hereby repealed in its entirety, and is replaced by the following new Chapter 1, to read as follows: Chapter 1 Right-of-Way Management Sec. 1.01. Findings and Purpose. To provide for the health, safety and well-being of its citizens, and to ensure the structural integrity of its streets and the appropriate use of the rights-of-way, the City strives to keep its rights-of-way in a state of good repair and free from unnecessary encumbrances. Although the general population bears the financial burden for the upkeep of the rights-of-way, a primary cause for the early and excessive deterioration of its rights-of-way is frequent excavation. Right-of-way obstruction is a source of frustration for merchants, business owners and the general population which must avoid these obstructions or change travel or shopping plans because of them and has a detrimental effect on commerce. Persons whose equipment is within the right-of-way are the primary cause of these frequent obstructions. The City holds the rights of way within its geographical boundaries as an asset in trust for its citizens. The City and other public entities have invested millions of dollars in public funds to build and maintain the rights-of-way. It also recognizes that some persons, by placing their equipment in the right-of-way and charging the citizens of the City for goods and services delivered thereby, are using this property held for the public good. Although such services are often necessary or convenient for the citizens, such persons receive revenue and/or profit through their use of public property. lEnacting clauses are different in various charters. The statutory city enacting clause is used here. ZIn most cases, there will be ordinances or legislative codes that will need to be amended or repealed because of inconsistency with the new regulations. One method is to repeal all those provisions and replace them with this ordinance. . In response to the foregoing facts, the City hereby enacts this new Chapter 1 of this Code3 relating to right-of-way permits and administration, together with an ordinance making necessary revisions to other Code provisions. This Chapter imposes reasonable regulations on the placement and maintenance of equipment currently within its rights-of-way or to be placed therein at some future time. It is intended to complement the regulatory roles of state and federal agencies. Under this Chapter, persons disturbing and obstructing the rights-of-way will bear a fair share of the financial responsibility for their integrity. Finally, this Chapter provides for recovery of out-of-pocket and projected costs from persons using the public rights-of-way. Sec. 1.02. Definitions. The following definitions apply in this Chapter 1 of this Code, (hereafter, "this Chapter). References hereafter to "sections" are unless otherwise specified references to sections in this Chapter. Defined terms remain defined terms whether or not capitalized. (a) "Applicant" means any person requesting permission to excavate or obstruct a right- of-way. (b) "City" means the City of , Minnesota. For purposes of section 1.28, city means 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; inspecting job sites and restoration projects; maintaining, supporting, protecting, or moving user equipment during public right-of-way work; 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 Chapter, including other costs the city may incur in managing the provisions of this Chapter. (d) "Degradation" means the accelerated depreciation of the right-of-way caused by excavation in or disturbarice of the right-of-way, resulting in the'need to reconstruct such right-of-way earlier than would be required if the excavation did not occur. (e) "Degradation Cost" means money paid to the city to cover the cost associated with a decrease in the useful life of a public right-of-way caused by excavation. (Note: The use and calculation of degradation costs are being addressed by the PUC's advisory task force.) (� "Department" means the Department of Public Works of the City. (Note: If a city does. not have a public works department, an equivalent department may be designated.) (g) "Department Inspector" means any person authorized by the Director to carry out inspections related to the provisions of this Chapter. 3Legislative compilations may carry other designations, such as Code of Ordinances or Municipal Code. 2 (h) "Director"4 means the Director of the Department of Public Works of the City, or her or his designee. (Note: Some cities may prefer to use the term "city" rather than delegating responsibilities to a specific position.) (I) "Disruptive Fee" is the penalty imposed as a result of the adverse impact on City citizens and others who are required to alter travel routes and times resulting from right- of-way obstructions. (j) "Downtown Business District" means that portion of the city lying within and bounded by the following streets: (insert your city definition here) (k) "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. (1) "Equipment" means any tangible thing in any right-of-way; but sha11 not include boulevard plantings or gardens planted or maintained in the right-of-way between a person's property and the street curb. (m) "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. (n) "Excavation permit" means the permit which, pursuant to this Chapter, 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. (o) "Excavation Permit Fee" means money paid to the City by an applicant to cover the costs as provided in Section l.l l. (p) "In," when used in conjunction with "right-of-way," means over, above, in, within, on or under a right-of-way. � (q) "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 registrarit regarding all matters within the scope of this Chapter. (r) "Obstruct" means to place any tangible object in a right-of-way so as to hinder free and open passage over that or any part of the right-of-way. (t) "Obstruction Permit" means the permit which, pursuant to this Chapter, 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 described therein on the right-of-way for the duration specified therein: 4This could be the city engineer, the street superintendent, or the city manager, or in each case, his or her designee. Some cities prefer to designate the city manager as the administrative authority in all cases, relying on the manager to make the appropriate assignment. 3 (u) "Obstruction Permit Fee" means money paid to the City by a registrant to cover the costs as provided in Section 1.11. (v) "Permittee" means any person to whom a permit to excavate or obstruct a right-of- way has been granted by the City under this Chapter. (w) "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, � successor or assign of any of the foregoing, or any other legal entity which has or seeks to have equipment in any right-of-way. (x) "Probation" means the status of a person that has not complied with the conditions of this Chapter. (Note: This paragraph is included as an option for your city.) (y) "Probationary period" means one year from the date that a person has been notified in writing that they have been put on probation. (Note: This paragraph is included as an option for your city.) (z) "Registrant" means any person who (1) has or seeks to have its equipment 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 in the right-of-way. (aa) "Repair" means the temporary construction work necessary to make the right-of- way useable for travel. (bb) "Restoration Bond" means a performance bond, a letter of credit, or cash deposit 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. (cc) "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. (dd) "Restoration Cost" means an amount of money paid to the City by a permittee to cover the cost of restoration. (ee) "Right-of-way" means the surface and space above and below a public roadway, highway, street, cartway, bicycle lane and public sidewalk in which the City has an interest, including other dedicated rights-of-way for travel purposes and utility easements of the city. (f fl"Right-of-way permit" means either the excavation permit or the obstruction permit, or both, depending on the context, required by this Chapter. (gg) "Service" or "Utility Service" includes but is not limited to (1) those services provided by a public uti�ity as defined in Minn. Stat. § 216B.02, subds. 4 and 6; (2) telecommunications, pipeline, community antenna television, fire and alarm communications, water, electricity, light, heat, cooling energy, or power services; (3) the 4 services provided by a corporation organized for the purposes set forth in Minn. Stat. § 300.03 ;(4) the services provided by a district heating or cooling system; and (5) cable communications systems as defined in Minn. Stat. Chap. 238. (hh) "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 had already been issued. (ii) "Telecommunication Rights-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 telecommunication or other voice or data information. For purposes of this Chapter, a cable communication system defined and regulated under Minn. Stat. Chap. 238, and telecommunication activities related to providing natural gas or electric energy services are not telecommunications right-of-way users. (jj) "Unusable equipment" means equipment 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 months or a potential purchaser or user of the equipment. Sec. 1.03. Administration. The Director� is the principal City official responsible for the administration of the rights-of-way, right-of-way permits, and the ordinances related thereto. The Director may delegate any or all of the duties hereunder. Sec. 1.04. Utility Coordination Committee. The city may create a utility coordination committee. If created, this committee shall be voluntary and advisory to the Director. It will be composed of any registrants that wish to assist the City in obtaining information and by making recommendations regarding ways to take greater responsibility for the right-of-way, and to improve the process of performing construction work therein. The Director may determine the size of such committee and snall appoint members from a list of registrants that have expressed a desire to assist the city. (Note: This paragraph is included as an option for your city.) Sec. 1.05. Registration and Right-of-Way Occupancy. Subd. 1. Registration. Each person who occupies, uses, or seeks to occupy or use, the right-of- way or any equipment in the right-of-way, including by lease, sublease or assignment, or who has, or seeks to have, equipment in any right of way must register with the Director. Registration will consist of providing application information and paying a registration fee. SThe city manager would usually make the appointment. A council resolution should be used in the typical weak mayor, non-manager city. The mayor of strong mayor cities would typically make this appointment. 5 Subd. 2. Registration Prior to Work. No person may construct, install, repair, remove, relocate, or perform any other work on, or use any equipment or any part thereof in any right-of-way without first being registered with the Director. Subd. 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 Chapter. However, excavations deeper than 12 inches are subject to the permit requirements of section 1.08 of this Chapter. (Note: The city may want to adopt other exceptions for boulevard work.) Sec. 1.06. Registration Information. Subd. 1. Information Required. The information provided to the Director at the time of registration shall include, but not be limited to: (a) Each registrant's name, Gopher One-Call registration certificate number, address and e-mail address if applicable, and telephone and facsimile numbers. (b) The name, address and e-mail address, if applicable, and telephone and facsimile numbers of a 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. (c) A certificate of insurance or self-insurance: (1) Shall be on a form approved by the city, (2)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 is covered by self insurance which the Director determines to provide the city with protections equivalent to that of a Minnesota licensed insurance company, legally independent from the registrant, (3) 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 equipment in the right- of-way by the registrant, its officers, agents, employees and permittees, including, but not limited to, protection against liability arising from completed operations, damage of underground equipment and collapse of property, (4) 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, - � (5) Requiring that the Director be notified thirty (30) days in advance of cancellation of the policy, and (6) Indicating comprehensive liability coverage, automobile liability coverage, workers compensation and umbrella coverage established by the Director in amounts sufficient to protect the City and carry out the purposes and policies of this Chapter. (d) 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. (e) A copy of the person's 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. (� Such other information as the City may require. Subd. 2. Notice of Changes. The registrant shall keep all of the information listed above current at all times by providing to the Director information as to changes within fifteen (15) days following the date on which the registrant has knowledge of any change. Sec. 1.07. Reporting Obligations. Subd. 1. Operations. Each registrant shall, at the time of registration and by December 1 of each year, file a construction and major maintenance plan with the Director. Such plan shall be submitted using a format designated by the Director and shall contain the information determined by the Director to be necessary to facilitate the coordination and reduction in the frequency of excavations and obstructions of rights-of-way. The plan shall include, but not be limited to, the following information: (a) `the locations and the estimated beginning and ending dates of all Projects to be commenced during the next calendar year (in this section, a"Next-year Project"); and (b) the tentative locations and estimated beginning and ending dates for all Projects contemplated for the five years following the next calendar year (in this section, a"Five- year Project"). The term "project" in this section shall include both Next-year Projects and Five-year Projects. By January 1 of each year the Director will have available for inspection in the Director's offic.es a composite list of all Projects of which the Director has been informed in the annual plans. All registrants are responsible for keeping themselves informed of the current status of this list. Thereafter, by February l, each registrant may change any Project in its list ofNext-Year Projects, and must notify the Director and all other registrants of all such changes in said list. Notwithstanding the foregoing, a registrant may at any time join in a Next-year Project of another registranf listed by the other registrant. 7 Subd. 2. Additional Next year Projects. Notwithstanding the foregoing, the Director may, for good cause shown, allow a registrant to submit additional Next-year Projects. Good cause includes, but is not limited to, the criteria set forth in Section 1.16 concerning the discretionary issuance of permits. See. 1.08. Permit Requirement. Subd. 1. Permit Required. Except as otherwise provided in this Code, no person may obstruct or excavate any right-of-way without first having obtained the appropriate right-of-way permit from the Director to do so. (a) Excavation permit. An excavation permit is required by a registrant to excavate that part of the right-of-way described in such permit and to hinder free and open passage over the specified portion of the right-of-way by placing equipment described therein, to the extent and for the duration specified therein. (b) Obstruction permit. An obstruction permit is required by a registrant to hinder free and open passage over the specified portion of right-of-way by placing equipment described therein on the right-of-way, to the extent and for the duration specified therein. Subd. 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 for another right-of-way permit before the expiration of the initial permit, and (ii) a new permit or permit extension is granted. Subd. 3. Disruptive Fee. Nothwithstanding subd. 2 of this section, even if a new permit or permit extension is granted, the Director shall a establish and impose a disruptive fee as a civil penalty for unreasonable delays in right-of-way excavation, obstruction, repair, or restoration. Subd. 4. Permit Display. Permits issued under this Chapter shall be conspicuously displayed at all times at the indicated work site and shall be available for inspection by Director. Sec. 1.09. Permit Applications. Application for apermit 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. (b) Submission of a completed permit application form, including all required attachments, and scaled drawings showing the loeation and area of the proposed project and the location of all existing and proposed equipment. (c) Payment of all money due to the City for: (1) permit fees and costs (2) prior obstructions or excavations; (3) any 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; (4) franchise fees, if applicable. (d) When an excavation permit is requested for purposes of installing additional equipment, and the posting of a restoration bond for the additional equipment is insufficient, the posting of an additional or larger restoration bond for the additional equipment may be required. Sec. 1.10. Issuance of permit; conditions. Subd. 1. Permit Issuance. If the Director determines that the applicant has satisfied the requirements of this Chapter, the Director may issue a permit. Subd. 2. Conditions. The Director may impose reasonable conditions upon the issuance of the permit and the performance of the applicant thereunder to protect the public health, safety and welfare, to ensure the structural integrity of the right-of-way, to protect the property and safety of other users of the right-of-way, and to minimize the disruption and inconvenience to the traveling public. Sec. 1.11. Permit Fees. Subd. 1. Excavation Permit Fee. The Excavation Permit Fee shall be established by the Director in an amount sufficient to recover the following costs: (a) the City cost; (b) degradation cost, if applicable. Subd. 2. Obstructive Permit Fee. The Obstruction Permit Fee shall be established by the director and shall be in an amount sufficient to recover the City cost. Subd. 3. 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 unless the applicant shall agree to pay such fees within thirty (30) days of billing therefor. All permit fees shall be doubled during a probationary period. (Note: Probation is an option for your city.) Subd. 4. Non refundable. Permit fees that were paid for a permit that the Director has revoked for a breach as stated in Section 1.21 are not refundable. Subd. 5. 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. Sec. 1.12. Right-of-Way Repair and Restoration. Subd. 1. Timing. The work to be done under the excavation permit, and the repair 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 Section 1.15. In addition to repairing its own work, the permittee must restore the general area of the work, and the surrounding areas, including the paving and its foundations, to the same condition that existed before the commencement of the work and must inspect the area of the work and use reasonable care to maintain the same condition for thirty-six (36) months thereafter. Subd. 2. Repair and Restoration. Permittee shall repair its own work. In addition, in its application for an excavation permit, the permittee may choose either to have the City restore the right-of-way or to restore the right-of-way itself. (a) City Restoration. If the permittee chooses to have the City restore the right-of-way, it 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, the cost of repairing said pavement. (b) Permittee Restoration. If the permittee chooses to restare the right-of-way itself, it shall at the time of application for an exca�ation permit post a restoration 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, thirty-six (36) 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 bond shall be released. Subd. 3. Standards. The permittee shall perform repairs and restoration according to the standards and with the materials specified by the Directo,r. The Director shall have the authority to prescribe the manner and extent of the restoration, and may do so in written procedures of general application or on a case-by-case basis. The Director in exercising this authority shall be guided by the following standards and considerations: [Note: The PUC Advisory Task Force will be recommending uniform statewide standards, where appropriate.] (a) the number, size, depth and duration of the excavations, disruptions or damage to the right-of-way; (b) the traffic volume carried by the right-of-way; the character of the neighborhood surrounding the right-of-way; (c) the pre-excavation condition of the right-of-way; the remaining life- expectancy of the right-of-way affected by the excavation; (d) whether the relative cost of the method of restoration to the permittee is in reasonable balance with the prevention of an accelerated depreciation of the right- 10 of-way that would otherwise result from the excavation, disturbance or damage to the right-of-way; and (e) the likelihood that the particular method of restoration would be effective in slowing the depreciation of the right-of-way that would otherwise take place. Subd. 4. Guarantees. By choosing to restore the right-of-way itself, the permittee guarantees its work and shall maintain it for thirty-six (36) months following its completion. During this thirty- six-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 1.15. Subd. 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 bond. Subd. 6. Degradation Fee in Lieu of Restoration. In lieu of right-of-way restoration, a permittee shall pay to the city a degradation fee to cover city costs associated with a decrease in the useful life of a public right-of-way caused by excavation and repairs. Payment of a degradation fee does not relieve permittee of the obligation to make necessary right-of-way repairs. [Note: Unless voluntarily agreed to, degradation fees cannot be imposed upon telecommunication right-of-way users.] Sec. 1.13. Joint Applications. Subd. 1. JointApplication. Registrants may jointly apply for permits to excavate or obstruct the right-of-way at the same place and time. ' Subd. 2. With City Projects. Registrants who join in a scheduled obstruction or excavation perfarmed by the Director, 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. Subd. 3. Shared Fees. Registrants who apply for permits for the same obstruction or excavation, which the Director 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. Sec. 1.14. Supplementary Applications. Subd. 1. 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 speciiied 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 11 (i) make application for a permit extension and pay any additional fees required thereby, and (ii) be granted a new permit or permit extension. Subd. 2. 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 apply for a new permit for the additional time it needs, and receive the new permit or an extension of the old permit before working after the end date of the previous permit. This supplementary application must be done before the permit end date. Sec. 1.15. Other Obligations. Subd. 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 any other City, County, State, or Federal rules, laws or regulations. A permittee shall comply with all requirements of local, state and federal laws, including Minn. Stat. §§ 216D.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. Subd. 2. Prahibited Work. Except in an emergency, and with the approval of the Director, no right-of-way obstruction or excavation may be done when seasonally prohibited or when conditions are unreasonable for such work. Subd. 3. Interference with Right-of-Way. A permittee shall not so obstruct a right-of-way that the natural free and clear passage of water through the gutters or other waterways shall be interfered with. Private vehicles may not be parked with or next to a permit area. The loading or unloading of trucks next to a permit area is prohibited unless specifically authorized by the permit. Sec. 1.16. Denial of permit. Subd. 1. Mandatory Denial. Except in an emergency, no right-of-way permit will be granted: (a) To any person required by Sec. 1.05 to be registered who has not done so; (b) To any person required by Sec. 1.08 to file an annual report but has failed to do so; (c) For any next-year project not listed in the construction and major maintenance plan required under Section 1.08; (d) For any project which requires the excavation of any portion of a right-of-way which was constructed or reconstructed within the preceding five years; (e) To any person who has failed within the past three (3) years to comply, or is presently not in full complianee, with the requirements of this Chapter; (� To any person as to whom there exists grounds for the revocation of a permit under Sec. 1.21; or 12 (g) If, in the discretion of the Director, the issuance of a permit for the particular date and/or time would cause a eonflict or interfere with an exhibition, celebration, festival, ar any other event. The Director, in exercising this discretion, shall be guided by the safety and convenience of ordinary travel of the public over the right-of-way, and by considerations relating to the public health, safety and welfare. Subd. 2. Permissive Denial. The Director may deny a permit to protect the public health, safety and welfare, to prevent interference with the safety and convenience of ordinary travel over the right-of-way, or when necessary to protect the right-of-way and its users. The Director, in her or his discretion, may consider one of more of the following factors: (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 Chapter, and other applicable ordinances and regulations; (� the degree of disruption to surrounding communities and businesses that will result from the use of that part of the right-of-way; (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. Subd. 3. Discretionary Issuance. Notwithstanding the provisions of Sec. 1.16 subd. 1, (c) and (d), the Director may issue a permit in any case where the permit is necessary (a) to prevent substantial economic hardship to a customer of the permit applicant, or (b) to allow such customer to materially improve its utility service, or (c) to allow a new economic develapment project, or otherwise required by law; and where the permit applicant did not have knowledge of the hardship, the plans for improvement of service, or the development project when said applicant was required to submit its list of Next-year projects. Subd. 4. Permits for Additional Next year Projects. Notwithstanding the provisions of Section 1.16 subd. 1(c) above, the Director may issue a permit to a registrant who was allowed under Section 1.07 Subd. 2, to submit an additional Next-year Project, such permit to be subject to all other conditions and requirements of law, including such conditions as may be imposed under Section 1.10. 13 Sec. 1.17. Installation Requirements. The excavation, backfilling, repair and restoration, and all other work performed in the right-of- way shall be done in conformance with "The Standard Specifications for Street Openings" as promulgated by the Director and at a location as required by Section 1.23. Sec. 1.18. Inspection. Subd. 1. Notice of Completion. When the work under any permit hereunder is completed, the permittee shall notify the Director. Subd. 2. Site Inspection. Permittee shall make the work-site available to the Director and to all others as authorized by law for inspection at all reasonable times during the execution of and upon completion of the work. Subd 3. Authority of Director. At the time of inspection the Director 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 Director may issue an order to the registrant for any work which does not conform to the applicable standards, conditions or codes. The order shall state that failure to correct the violation will be cause for revocation of the permit. VJithin ten days after issuance of the order, the registrant shall present proof to the Director that the violation has been corrected. If such proof has not been presented within the required time, the Director may revoke the permit pursuant to Sec. 1.21. Sec. 1.19. Work Done Without a Permit. Subd. 1. Emergency Situations. Each registrant shall immediately notify the Director of any event regarding its equipment which it considers to be an emergency. The registrant may proceed to take whatever actions are necessary to respond to the emergency. Within two business days after the occurrence of the emergency the registrant 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 Chapter for the actions it took in response to the emergency. � If the Director becomes aware of an emergency regarding a registrant's equipment, the Director may attempt to contact the local representative of each registrant affected, or potentially affected, by the emergency. In any event, the Director may take whatever action it deems necessary to respond to the emergency, the cost of which shall be borne by the registrant whose equipment occasioned the emergency. _ Subd. 2. Non-Emergency Situations. Except in an emergency, any person who, without first having obtained the necessary permit, abstructs or excavates a right-of-way must subsequently obtain a permit, pay double the normal fee for said permit, pay double all the other fees required by the Legislative Code, 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 Chapter. 14 Sec. 1.20. 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 Director of the accurate information as soon as this information is known. Sec. 1.21. Revocation of Permits. Subd. 1. Substantial Breach. Registrants hold permits issued pursuant to this Chapter as a privilege and not as a right. 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 condition of the permit. A substantial breach by permittee shall include, but shall not be limited to, the following: (a) The violation of any material provision of the right-of-way permit; (b) 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; (c) Any material misrepresentation of fact in the application for a right-of-way permit; (d) The failure to maintain the required bonds and/or insurance; (e) The failure to complete the work in a timely manner; or (� The failure to correct a condition indicated on an order issued pursuant to Sec. 1.18. Subd. 2. Written Notice of Breach. If the Director 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 Director 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. Further, a substantial breach, as stated above, will allow the Director, at his or her discretion, to place additional or revised conditions on the permit. Subd. 3. Response to Notice of Breach. Within twenty-four (24) hours of receiving notification of the breach, permittee shall contact the Director with a plan,=acceptable to the Director, for its correction. Permittee's failure to so contact the Director, 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. Further, permittee's failure to so contact the Director, or the permittee's failure to submit an acceptable plan, or permittee's failure to reasonably implement the approved plan, shall automatically place the permittee on probation for one full year. (Note: Probation is an option for your city.) Subd. 4. Cause for Probation. From time to time, the Director may-establish a list of conditions of the permit, which if breached will automatically place the permittee on probation for one full year, such as, but not limited to, working out of the allotted time period or working on right-of- way �rossly outside of the permit. (Note: Probation is an option for your city.) 15 Subd. 5. Automatic Revocation. If a permittee, while on probation, commits a breach as outlined above, permittee's permit will automatically be revoked and permittee will not be allowed further permits for one full year, except for emergency repairs. (Note: Probation is an option for your city.) Subd. 6. Reimbursement of City Costs. If a permit is revoked, the permittee shall also reimburse the city for the city's reasonable costs, including restoration costs and the costs of collection and reasonable attorneys' fees incurred in connection with such revocation. (Note: Probation is an option for your city.) Sec. 1.22. Mapping Data. Subd. 1. Information Required. Except as provided in subd. 2 of this section, each registrant shall provide to the Director information indicating the horizontal and vertical location, relative to the boundaries of the right-of-way, of all equipment which it owns or over which it has control and which is located in any right-of-way ("Mapping Data"). Mapping Data shall be provided with the specificity and in the format requested by the Director for inclusion in the mapping system used by the Director. Within six months after the acquisition, installation, or construction of additional equipment or any relocation, abandonment, or disuse of existing equipment, each registrant shall supplement the Mapping Data required herein. Each registrant shall, within six (6) months after the date of passage of this Chapter, submit a plan to the Director specifying in detail the steps it will take to comply with the requirements of this Section. Said plan shall provide for the submission of all Mapping Data (a) for the Downtown Business District within two (2) years after the date of passage of this Chapter, and (b) for the remainder of the City as early as may be reasonable and practical, but not later than five (5) years after the date of passage of this Chapter. (Note: Mapping data schedule is an aption for your city.) NotwithstandYng the foregoing, Mapping Data shall be submitted by all registrants for all equipment which is to be installed or constructed after the date of passage of this Chapter at the time any permits are sought under these ordinances. After six (6) months after the passage of this Chapter, a new registrant, or a registrant which has not submitted a plan as required above, shall submit complete and accurate Mapping Data for all its equipment at the time any permits axe sought under these ordinances. Subd. 2. Telecommunication Equipment. Information on existing facilities and equipment of telecommunications right-of-way users need only be supplied in the form maintained by the telecommunications right-of-way user. Subd. 3. Trade Secret Information. At the request of any registrant, any inforrnation requested by the Director (or Director), which qualifies as a"trade-secret" under Minn. Stat. § 13.37(b) shall be treated as trade secret information as detailed therein. With respect to the provision of mapping data, the city may consider unique circumstances from time to time required to obtain mapping data. 16 Sec. 1.23. Location of Equipment. Subd. 1. Undergrounding. Unless otherwise permitted by an existing franchise or Minnesota Stat. 216B.34, or unless existing above-ground equipment is repaired or replaced, new construction and the installation of new equipment and replacement of old equipment shall be done underground or contained within buildings or other structures in conformity with applicable codes.b Subd. 2. Corridors. The Director may assign specific corridors within the right-of-way, or any particular segment thereof as may be necessary, for each type of equipment that is or, pursuant to current technology, the Director expects will someday be located within the right-of-way. All excavation, obstruction, or other permits issued by the Director involving the installation or replacement of equipment shall designate the proper corridor for the equipment at issue. Any registrant whose equipment is in the right-of-way in a position at variance with the corridors established by the Director shall, no later than at the time of the next reconstruction or excavation of the area where its equipment is located, move that equipment 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. Subd. 3. Nuisance. One year after the passage of this Chapter, any equipment found in a right- of-way that has not been registered 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 equipment and restoring the right-of-way to a useable condition. Subd. 4. Limitation of Space. To protect health and safety, the Director shall have the power to prohibit or limit the placement of new or additional equipment within the right-of-way if there is insufficient space to accommodate all of the requests of registrants or persons to occupy and use the right-of-way. In making such decisions, the Director 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 patticuiar utility service, the condition of the right-of-way, the time of year with respect to essential utilities, the protection of existing equipment 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. Sec. 1.24. Relocation of Equipment. A Registrant must promptly and at its own expense, with due regard for seasonal working conditions, permanently remove and relocate its equipment and facilities in the right-of-way whenever the director requests such removal and relocation, and shall restore the right-of-way to the same condition it was in prior to said removal or relocation. The director may make such request to prevent interference by the Company's equipment or facilities with (i) a present or future City use of the right-of-way, (ii) a public improvement undertaken by the City, (iii) an economic development project in which the City has an interest or investment, (iv) when the 6This 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 if Undergrounding is not a priority objective of the community. 17 public health, safety and welfare require it, or (v) when necessary to prevent interference with the safety and convenience of ordinary travel over the right-of-way. Notwithstanding the foregoing, a person shall not be required to remove or relocate its equipment from any right-of-way which has been vacated in favor of a non-governmental entity unless and until the reasonable costs thereof are first paid to the person therefor. Sec. 1.25. Pre-Excavation Equipment Location. In addition to complying with the requirements of Minn. Stat. §§ 216D.01-.09 ("One Call Excavation Notice System") before the start date of any right-of-way excavation, each registrant who has equipment in the area to be excavated shall mark the horizontal and approximate vertical placement of all said equipment. Any registrant whose equipment is less that twenty (20) inches below a concrete or asphalt surface shall notify and work closely with the excavation contraetor to establish the exact location of its equipment and the best procedure for excavation. Sec. 1.26. Damage to Other Equipment. When the Director does work in the right-of-way and finds it necessary to maintain, support, or move a registrant's equipment to protect it, the Director shall notify the local representative as early as is reasonably possible. The costs associated therewith will be billed to that registrant and must be paid within thirty (30) days from the date of billing. Each registrant shall be responsible for the cost of repairing any equipment in the right-of-way which it or its equipment damages. Each registrant shall be responsible for the cost of repairing any damage to the equipment of another registrant caused during the City's response to an emergency occasioned by that registrant's equipment. Sec. 1.27. Right-of-Way Vacation. Subd. 1. Reseruation of Right. If the City vac�tes a right-of-way which contains the equipment of a registrant, and if the vacation does not require the relocation of registrant or permittee equipment, the City shall reserve, to and for itself and all registrants having equipment in the vacated right-of-way, the right to install, maintain and operate any equipment 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. Sabd. 2. Relocation of Equipment. If the vacation requires the relocation of registrant or permittee equipment; and (a) if the vacation proceedings are initiated by the registrant or permittee, the registrant or permittee must pay the relocation costs; or (b) if the vacation proceedings are initiated by the city, the registrant or permittee must pay the relocation costs unless otherwise agreed to by the city and the registrant or permittee; or (c) if the vacation proceedings are initiated by a person or persons other than the registrant or permittee, such other person or persons must pay the relocation costs. Sec, 1.28. Indemnification and Liability. Subd. 1. Limitation of Liability. By reason of the acceptance of a registration or the grant of a right-of-way permit, the City does not assume any liability (a).for injuries to persons, damage to 18 property, or loss of service claims by parties other than the registrant or the City, or (b) for claims or penalties of any sort resulting from the installation, presence, maintenance, or operation of equipment by registrants or activities of registrants. Subd. 2. Indemnification. By registering with the Director, a registrant agrees, or by accepting a permit under this Chapter, a permittee is required, to defend, indemnify, and hold the City whole and harmless from all costs, liabilities, and claims for damages of any kind arising out of the construction, presence, installation, maintenance, repair or operation of its equipment, or out of any activity undertaken in or near a right-of-way, whether or not any act or omission complained of is authorized, allowed, or prohibited by a right-of-way permit. It further agrees that it will not bring, nor cause to be brought, any action, suit or other proceeding claiming damages, or seeking any other relief against the City for any claim nor for any award arising out of the presence, installation, maintenance or operation of its equipment, or any activity undertaken in or near a right-of-way, whether or not the act or omission complained of is authorized, allowed or prohibited by a right-of-way permit. The foregoing does not indemnify the City for its own negligence except for claims arising out of or alleging the City's negligence where such negligence arises out of or is primarily related to the presence, installation, construction, operation, maintenance or repair of said equipment by the registrant or on the registrant's behalf, including, but not limited to, the issuance of permits and inspection of plans or work. This section is not, as to third parties, a waiver of any defense or immunity otherwise available to the registrant or to the City; and the registrant, in defending any action on behalf of the City, shall be entitled to assert in any action every defense or immunity that the City could assert in its own behalf. Sec. 1.29. Future Uses. In placing any equipment, or allowing it to be placed, in the right-of-way the City is not liable for any damages caused thereby to any registrant's equipment which is already in place. No registrant is entitled to rely on the provisions of this Chapter, and no special duty is created as to any registrant. This Chapter is enacted to protect the general health, welfare and safety of the public at large. Sec. 1.30. Abandoned and Unusable Equipment. Subd. 1. Discontinued Operations. A registrant who has determined to discontinue its operations in the City must either: (a) Provide information satisfactory to the Director that the registrant's obligations for its equipment in the right-of-way under this Chapter have been lawfully assumed by another registrant; or (b) Submit to the Director a proposal and instruments for transferring ownership of its equipment to the City. If a registrant proceeds under this clause, the City may, at its option: (1) purchase the equipment; or (2) require the registrant, at its own expense, to remove it; or 19 (3) require the registrant to post a bond in an amount sufficient to reimburse the City for reasonably anticipated costs to be incurred in removing the equipment. Subd. 2. Abandoned Equipment. Equipment of a registrant who fails to comply with Section 1.30 subd. l, and which, for two years, remains unused shall be deemed to be abandoned. Abandoned equipment is 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, (i) abating the nuisance (ii) taking possession of the equipment and restoring it to a useable condition, or (iii) requiring removal of the equipment by the registrant, or the registrant's successor in interest. Subd. 3. Removal. Any registrant who has unusable and abandoned equipment 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 Director. Sec. 1.31. Reservation of Regulatory and Police Powers. The City by the granting of a right-of-way permit, or by registering a person under this Chapter does not surrender or to any extent lose, waive, impair, or lessen the lawful powers and rights, which it has now or may be hereafter granted to the City under the Constitution and statutes of the State of Minnesota (or the Charter of the city) to regulate the use of the right-of-way by the permittee; and the permittee by its acceptance of a right-of-way permit or of registration under this Chapter agrees that all lawful powers and rights, regulatory power, or police power, or otherwise as are or the same may be from time to time vested in or reserved to the City, shall be in full force and effect and subject to the exercise thereof by the City at any time. A permittee or registrant is deemed to acknowledge that its rights are subject to the regulatory and police powers of the City to adopt and enforce general ordinances necessary to the safety and welfare of the public and is deemed to agree to comply with all applicable general laws and ordinances enacted by the City pursuant to such powers. Any conflict between the provisions of a registration or of a right-of-way permit and any other present or future lawful exercise of the City's regulatory or police powers shall be resolved in favor of the latter. � Sec. 1.32. Severability. If any section, subsection, sentence, clause, phrase, or portion of this Chapter is for any reason held invalid or unconstitutional by any court or administrative agency of competent jurisdiction, such portion shall be deemed a 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 Chapter or any portions of this Chapter is 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 perrnit and the right of termination. If a permit, right or registration shall be considered a revocable permit as provided herein, the permittee must acknowledge the authority of the City Council to issue such revocable permit and the power to revoke it. Nothing in this Chapter precludes the city from 20 requiring a franchise agreement with the applicant, as allowed by law, in addition to requirements set forth herein. 21 OPTIONAL PROVISIONS FOR IMPOSITION OE USER FEES Historically, cities have varied widely in their approaches to charging utilities and others for the privilege of placing equipment and facilities in public rights-of-ways. The approaches used have gone from the requirement of a minimal fee to cover the cost of permit issuance to the more significant practice of granting a franchise and imposing a franchise fee. The model ordinance imposes fees that reflect a fair approximation of the city's cost in managing its public rights-of-way. However, the charges are not intended to compensate the city for the value of the privilege of being able to use the public rights-of-way. Cities have approached this issue in a variety of ways. One method has been to grant franchises and collect franchise fees. This remains a viable alternative for all utilities except telecommunieations companies. (Recent law changes prohibit franchising fees on telecommunications companies.) As an alternative to franchise fees, other cities have considered imposition of "user fees." The user fee concept rests on the premise that the right-of-way has a value associated with it and that it is appropriate to require payments as reimbursement or return to the public for that use value - particularly from those who obtain revenue or profit from such use. Again, under current law, user fees are permissible except as against telecommunication rights-of-way users. Because the practice of charging for the use of the public rights-of-way varies significantly from community to community, the user fee concept is not included in the main body of the model ordinance. However, for those cities that would like to impose user fees on non-telecommunication companies, several suggested additions to the model ordinance have been provided. The principal modifications to the model ordinance consist of the following: 1) An addition to paragraph (b) in the "Findings and Purpose" section (Section 1.01); 2) A definition of "user fee" in Section 1.02, 3) A new section 1.06 in the "Grant of Right; Payment of user fee," and 4) Inclusion of user fees in Section 1.09, "Permit Applications." The text that follows is written so that the user fee concept can be incorporated into the model ordinance with only minor modifications. If the text is included, sections of the model ordinance will need to be renumbered accordingly. Text of additions to model ordinance. I. Section 1.01 of the model ordinance should include a subparagraph (b) as follows: (b) Use Fee. In addition to the foregoing recovery of costs and regulation of use, the Council determines that there is an existing and legitimate state and local public policy, which authorizes the City to require payments as reimbursement or return to the public for the use value of the public rights-of-way from those who obtain revenue or profits from such use. This reimbursement is provided for and defined in this ordinance as the "user fee." 22 (1) Public Interest and Welfare. The Council finds that it is in the public interest to provide for the payment of a user fee by all persons who use and occupy the right-of-way for operating their businesses. This provides equity by requiring all users of the right-of-way to pay compensation apportioned equally among them all for the value and benefit of using such right-of-way. To ensure such fair treatment, this Chapter exempts franchise holders which pay franchise fees to the City on the date of adoption of this Chapter from the payment of a user fee. (2) Legislative Power. In these situations, the Council desires to exercise its lawful police power and common law authority, and all statutory authority which is available to it, including, but not limited to, the powers conferred on it under Minn. Stat. §§ 216B.36, 222.37, 237.16 and 300.03, (410.09) and 412.211, subdivisions 6, 23 and 32.' The Council finds and determines that the public interest will be best protected by adopting this Chapter conferring the right to occupy the right-of-way in return for payment as authorized by law. (3) Computation of User fee. (See attachment.) (4) Not a Rate. The Council finds and determines that the user fee authorized by this Chapter is not and is not intended to be a rate as that term is defined in Minn. Stat. § 216B.02, subd. 5. Such user fee is not a fee for a service that is provided to the customer of a person using the right-of-way, but is rather a fee paid for the right of that person to operate in the public right-of-way, and to maintain the equipment of a utility in the right- of-way in II. Section 1.02 of the model ordinance should include a subparagraph (jj) defining user fee as follows: (jj) "User fee" is the sum of money, payable to the City, by a person using or occupying the right-of-way; provided, however, that the City may at its option provide, at any time by ordinance or by amendment thereto, for a greater or different fee applicable to all such persons in an amount and by a method of determination as may be further provided in such ordinance or amendment thereto. III. The model ordinance is changed to add a new Section 1.06 to read as follows: [existing Section 1.06 and all subsequent sections must be renumbered] Sec. 1.06. Grant of Right; Payment of user fee. Any person required to register under Section 1.05, which furnishes utility services or which occupies, uses, or places its equipment in the right-of-way, is hereby granted a right to do so if and only so long as it (1) timely pays the user fee as provided herein, and (2) complies with all other requirements of law. This legal entitlement shall not include use of the right-of-way for purposes not in furtherance of furnishing utility services for which additional authorization is required by this Code or other state or federal law, unless the person pays the user fee for such non-utility service use. Such fee shall be paid to the City in substantially equal (quarterly, semi-annual, annual) installments, subject to adjustment and correction at the conclusion of the calendar year. Such fee shall be paid for all and any part of a calendar year, prorated on a daily basis, during any time period in which the said person (a) uses or occupies the right-of-way to furnish utility service, or (b) places, maintains or uses its wires, mains, pipes, or any other facilities or equipment in the right-of-way. 1 Language in parentheses is appropriate only in cities with home rule charters. 23 This section does not apply to a person which uses and occupies the right-of-way for operating its business when there is a preexisting franchise agreement between that person and the city which provides for the payment of franchise fees. The grant of such right is expressly conditioned on, and is subject to, continuing compliance with all provisions of law, including this Chapter. IV. Section 1.09 of the model ordinance should include a subparagraph (c)(5) as follows: (5) user fees. 1 Language in parentheses is appropriate only in cities with home rule charters. 24