Ordinance No. 1116 04-20-1998 ORDINANCE NO. 1116
OFFICIAL TITLE AND SUMMARY
I. Title: An Ordinance Repealing Chapter 407 of the Fridley City Code
in its Entirety and Adopting a New Chapter 407 Entitled "Right-of-way
Management" and Amending Chapter 11 of the Fridley City Code Entitled
General Provision and Fees.
II. Summary: The City Council of the City of Fridley does hereby
ordain as follows:
The ordinance implements the 1997 Minnesota Legislative law contained
in Chapter 123 regarding the management of the public rights-of-way.
The purpose of the ordinance is to outline the registration and
permitting requirements as well as coordinating projects providing
for recording and mapping of utilities placed within the public
rights-of-way and identifying those conditions associated with
restoring the rights-of-way.
The ordinance holds the rights-of-way within the geographic
boundaries of the city as an asset and 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
rights-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 said services are often necessary or are
convenient for citizens, such persons receive revenue and/or profit
through their use of public property.
In these situations the City 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 the powers
conferred upon it by Minnesota statutes 216B.36, 222.37, 237.16 and
300.03 (410.09) and 412.211 subdivision 6, 23 and 32. The Council
finds and determines that the public interest would be best protected
by adopting this chapter conferring the right to occupy the rights-
of-way in return for payment as authorized by law.
The ordinance describes the process to register for work within the
rights-of-way, the permit application process and fees necessary to
recoup the cost for administering and managing the rights-of-way as
well as establishing the repair and restoration standards to ensure
that the rights-of-way is restored to the same condition prior to any
excavations or work. It also authorizes the process for denying
permits, revocation of permits, establishment of process for
emergency work, as well as locating facilities and relocating
facilities within the rights-of-way as well as for the collection of
fees.
Page 2 -- Ordinance No. 1116
III. This title and summary have been published to clearly inform he
public of the intent and effect of the City of Fridley's rights-of-
way ordinance. A copy of the ordinance in its entirety is available
for inspection by any person during regular business hours at the
offices of the City Clerk of the City of Fridley, 6431 University
Avenue NE, Fridley, MN 55432.
PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF FRIDLEY THE
20TH DAY OF APRIL, 1998 .
4 i
CY .!JO/ E ON - MAYOR
ATTEST:
Latizpv. a . CO(
WILLIAM A. CHAMPA - C TY CLERK
Public Hearing: February 23, 1998
First Reading: March 2, 1998
Second Reading: April 20, 1998
Publication: April 23, 1998
ORDINANCE NO. 1116
AN ORDINANCE REPEALING CHAPTER 407 OF THE
FRIDLEY CITY CODE IN ITS ENTIRETY, AND ADOPTING
A NEW CHAPTER 407, ENTITLED "RIGHT-OF-WAY
MANAGEMENT" AND AMENDING CHAPTER 11 OF THE
FRIDLEY CITY CODE, ENTITLED "GENERAL PROVISIONS
AND FEES"
THE CITY COUNCIL OF THE CITY OF FRIDLEY DOES ORDAIN AS FOLLOWS:
407 . 01. FINDINGS AND PURPOSE
1. 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.
As a result of all these intrusions in the right-of-way, it is
necessary for the City to establish a system of documenting
what is placed in the rights-of-way within its municipal
boundaries and to serve as a central record agency to inform
its citizens and the other public entities of the facilities
that have been placed in the right-of-way that is held in trust
for them.
2 . In response to the foregoing facts, the City hereby enacts this
new Chapter of the City Code relating to right-of-way permits
and administration, together with making necessary revisions to
other Code provisions. This Chapter imposes reasonable
regulations on providers of electricity, light, heat, cooling
energy, liquid and gaseous fuels, information and communication
Page 2 -- Ordinance No. 1116
service to the public that place and maintain facilities or
equipment currently within the City' s 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 and adopts the standards
developed by the Public Utilities Commission (PUC) on maximum
restoration requirements 7819. 9900 through 7819. 9950.
3. In addition to the foregoing recovery of costs and regulation
of use, the City 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." This fee does not apply to the repair,
replacement or reconstruction of an existing facility.
Telecommunication facilities are exempt from a user fee by
state statute.
a. Public Interest and Welfare.
The City 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.
b. Legislative Power.
In these situations, the City 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.
Page 3 -- Ordinance No. 1116
c. Not a Rate.
The City 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 the City of Fridley.
407 . 02 . DEFINITIONS
The following definitions apply in this Chapter of this Code.
Reference 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 Fridley, Minnesota. For purposes
of section 407.27, City means its elected officials,
officers, employees and agents.
c. "Construction Performance Bond" means a performance bond,
or other form of security posted to ensure the availability
of sufficient funds to assure that Right-of-Way Excavation
and Obstruction work is completed in accordance with the
terms of the Right-of-Way Permit, or other applicable State
law or local regulation.
d. "Degradation" means a decrease in the useful life of the
Right-of-Way caused by excavation in or disturbance of the
Right-of-Way, resulting in the need to reconstruct such
Right-of-Way earlier than would be required if the
excavation did not occur.
e. "Degradation Cost" means the cost to achieve a level of
restoration as determined by the City at the time the
permit is issued, not to exceed the maximum restoration
shown in plates 1 to 13, set forth in proposed PUC rules
parts 7819. 9900 to 7819. 9950.
f. "Degradation Fee" means the estimated fee established at
the time of permitting by the City to recover costs
associated with the decrease in the useful life of the
Right-of-Way caused by the excavation, and which equals the
Degradation Costs.
Page 4 -- Ordinance No. 1116
g. "Department" means the Department of Public Works of the
City.
h. "Department inspector" means any Person authorized by the
City to carry out inspections related to the provisions of
this Chapter.
i. "Director" means the Director of the Department of Public
Works of the City, or her or his designee.
j . "Delay Penalty" is the penalty imposed as a result of
unreasonable delays in Right-of-Way construction.
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 of Facilities in order to restore service to a
customer.
1. "Equipment" means any tangible asset used to install,
repair, or maintain Facilities in any Right-of-Way.
m. "Excavate" means to dig into or in any way remove or
physically disturb or penetrate any part of a Right-of-Way.
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 Chapter 11 of
this Code.
p. "Facility or Facilities" means any tangible asset in the
Right-of-Way required to provide Utility Service.
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
Registrant regarding all matters within the scope of this
Chapter.
r. "Management Costs" means the actual costs the City incurs
in managing its Rights-of-Way, including such costs, if
incurred, as those associated with registering Applicants;
issuing, processing, and verifying Right-of-Way permit
applications and inspecting job sites
Page 5 -- Ordinance No. 1116
s. "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 for a period in excess of 8
consecutive hours.
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 for
a period over 8 hours by placing Equipment described
therein on the Right-of-Way for the duration specified
therein.
u. "Obstruction Permit Fee" means money paid to the City by a
Permittee to cover the costs as provided in Chapter 11 of
this Code.
v. "Patch or Patching" means a method of pavement replacement
that is temporary in nature. A Patch consists of (1) the
compaction of the subbase and aggregate base, and (2) the
replacement, in kind, of the existing pavement for a
minimum of two feet beyond the edges of the excavation in
all directions. A Patch is considered full Restoration
only when the pavement is included in the City' s five year
project plan.
w. "Pavement" means any type of improved surface that is
within the public right-of-way and that is paved or
otherwise constructed with asphalt, concrete, aggregate or
gravel.
x. "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.
y. "Person" means any natural or corporate Person, business
association or other business entity including, but not
limited to, a partnership, a sole proprietorship, a
political subdivision, a public or private agency of any
kind, a utility, a successor or assign of any of the
foregoing, or any other legal entity.
z. "Probation" means the status of a Person that has not
complied with the conditions of this Chapter.
aa. "Probationary Period" means one year from the date that a
Person has been notified in writing that they have been put
on Probation.
bb. "Repair" means the temporary construction work necessary to
make the Right-of-Way useable for travel.
Page 6 -- Ordinance No. 1116
cc. "Registrant" means any Person who (1) has or seeks to have
its Equipment or Facilities located in any Right-of-Way, or
(2) in any way occupies or uses, or seeks to occupy or use,
the Right-of-Way or place its Facilities in the Right-of-
Way.
dd. "Restore or Restoration" means the process by which a
Right-of-Way is returned to the same condition and life
expectancy that existed before excavation.
ee. "Restoration Cost" means the amount of money paid to the
City by a Permittee to achieve the level of restoration
according to plates 1 to 13 to PUC rules
ff. "Right-of-Way" means the area on, below, or above 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. A Right-of-Way does not include the
airwaves above a Right-of-Way with regard to cellular or
other nonwire telecommunications or broadcast service.
gg. "Right-of-Way Permit" means either the Excavation Permit or
the Obstruction Permit, or both, depending on the context,
required by this Chapter.
hh. "Service" or "Utility Service" includes but is not limited
to (1) those services provided by a public utility as
defined in Minn. Stat. § 216B.02, subds. 4 and 6; (2)
telecommunications, pipeline, community antenna television,
fire and alarm communications, electricity, light, heat,
cooling energy, or power services; (3) the 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. Chapter
238; and a (6) Telecommunication Right-of-Way User as
defined in (ii) .
ii. "Supplementary Application" means an application made to
Excavate or Obstruct more of the Right-of-Way than
permitted or to extend a permit that had already been
issued.
jj . "Telecommunication Rights-of-Way User" means a Person
owning or controlling a Facility in the Right-of-Way, or
seeking to own or control a Facility in the 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. Chapter 238, and
Page 7 -- Ordinance No. 1116
III
telecommunication activities related to providing natural
gas or electric energy services whether provided by a
public utility as defined in Minn. Stat. Section 216B.02 a
municipality, a municipal gas or power agency organized
under Minn. Stat. Chaps. 453 and 453A, or a cooperative
electric association organized under Minn. Stat. Chap.
308A, are not Telecommunications Right-of-Way Users for
purposes of this Chapter.
kk. "Unusable Facilities" means Facilities in the Right-of-Way
which have remained unused for one year and for which the
Registrant is unable to provide proof that it has either a
plan to begin using it within the next twelve (12) months
or a potential purchaser or user of the Facilities.
11. "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.
III407 . 03. ADMINISTRATION
1. Responsibility.
The City Manager is the principal City official responsible for the
administration of the Rights-of-Way, Right-of-Way Permits, and the
ordinances related thereto. The City Manager may delegate any or
all of the duties hereunder.
2 . Franchise: Franchise Supremacy.
The City may, in addition to the requirements of this Chapter,
require any person which has or seeks to have equipment located in
any Right-of-Way to obtain a franchise to the full extent permitted
by law now or hereinafter enacted. The terms of any franchise which
are in direct conflict with any provision of this Chapter whether
granted prior or subsequent to enactment of this Chapter, shall
control and supercede the conflicting terms of this Chapter. All
other terms of this Chapter shall be fully applicable to all Persons
whether franchised or not.
407 . 4 . REGISTRATION AND RIGHT-OF-WAY OCCUPANCY
1. Registration.
Each person who occupies, uses, or seeks to occupy or use, the
Right-of-Way or place any Equipment or Facilities in the Right-of-
Way, including Persons with installation and maintenance
Page 8 -- Ordinance No. 1116
responsibilities by lease, sublease or assignment, must register
with the City. Registration will consist of providing application
information and paying a registration fee.
2 . Registration Prior to Work.
No Person may construct, install, repair, remove, relocate, or
perform any other work on, or use any Facilities or any part thereof
in any Right-of-Way without first being registered with the City.
3. Exceptions.
Nothing herein shall be construed to repeal or amend the provisions
of a City ordinance permitting Persons to plant or maintain
boulevard plantings or gardens in the area of the Right-of-Way
between their property and the street curb. Persons planting or
maintaining boulevard plantings or gardens shall not be deemed to
use or occupy the Right-of-Way, and shall not be required to obtain
any permits for planting or maintaining such boulevard plantings or
gardens under this Chapter. However, nothing herein relieves a
Person from complying with the provisions of the Minn. Stat.
Chapter. 216D, "One call" Law.
SECTION 407. 05 . REGISTRATION INFORMATION
1. Information Required.
The information provided to the City 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. Verify that an insurance policy has been issued to the
Registrant by an insurance company licensed to do
business in the State of Minnesota, or a form of self
insurance acceptable to the City;
2. 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
Page 9 -- Ordinance No. 1116
officers, agents, employees and Permittees, and (ii)
placement and use of Facilities in the Right-of-Way by
the Registrant, its officers, agents, employees and
Permittees, including, but not limited to, protection
against liability arising from completed operations,
damage of underground Facilities and collapse of
property;
3. 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;
4. Requiring that the City be notified thirty (30) days in
advance of cancellation of the policy or material
modification of a coverage term;
5. Indicating comprehensive liability coverage, automobile
liability coverage, workers compensation and umbrella
coverage established by the City in amounts sufficient
to protect the City and the public and to carry out the
purposes and policies of this Chapter.
d. The City may require a copy of the actual insurance
policies.
e. 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.
f. A copy of the Person' s order granting a certificate of
authority from the Minnesota Public Utilities Commission or
other applicable state or federal agency, where the Person
is lawfully required to have such certificate from said
Commission or other state or federal agency.
2 . Notice of Changes.
The Registrant shall keep all of the information listed above
current at all times by providing to the City information as to
changes within fifteen (15) days following the date on which the
Registrant has knowledge of any change.
3. Grant of Right; Payment of User Fee.
Any person required to register under Section 407.04, 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
Page 10 -- Ordinance No. 1116
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.
The user fee reflects the value of the right-of-way needed for new
facilities and is based on the average market value of the land,
adjusting for the cost of acquisition and non-exclusive use. The
dimensions of the occupied land shall incorporate the Gopher One
Call criteria of 2 foot clearance on all sides. 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 uses or occupies the right-of-
way to furnish utility serviced, or places, maintains or uses its
wires, mains, pipes, or any other facilities or equipment in the
right-of-way.
This section does not apply to a person which uses and occupies the
right-of-way for operating its business when there is a pre-existing
franchise agreement between that person and the city and the payment
of a franchise fees, nor does it apply to the repair, replacement or
reconstruction of an existing facility.
The grant of such right is expressly conditioned on, and is subject
to, continuing compliance with all provisions of law, including this
Chapter.
407 . 06. REPORTING OBLIGATIONS
1. Operations.
Each Registrant proposing to work in the city shall, at the time of
registration and by December 1 of each year, file a construction and
major maintenance plan for underground Facilities with the City.
Such plan shall be submitted using a format designated by the City
and shall contain the information determined by the City 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. To the extent known, 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") .
Page 11 -- Ordinance No. 1116
The term "project" in this section shall include both Next-year
Projects and Five-year Projects.
By January 1 of each year the City will have available for
inspection a composite list of all Projects of which the City 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 1, each Registrant may change any Project in
its list of Next-year Projects, and must notify the City 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 Registrant listed by the other Registrant.
2. Additional Next-year Projects.
Notwithstanding the foregoing, the City will not deny an application
for a Right-of-Way Permit for failure to include a project in a plan
submitted to the City if the Registrant has used commercially
reasonable efforts to anticipate and plan for the project.
3. Applicants obtaining Anoka County Highway or Minnesota
Department of Transportation excavation permits for facilities in
their rights-of-way must provide a copy to the City and submit a
copy of the plans with mapping data for recording purposes per
Section 407 .21.
SECTION 407 .07 . PERMIT REQUIREMENT
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 City 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 Facilities described therein, to the
extent and for the duration specified therein.
A construction/improvement/upgrade project requiring excavation
within the right-of-way requires an excavation permit.
Multiple excavations limited to one city block are considered
one project and require an excavation permit.
Each permit application will require the mapping data per
Section 407.21.
Page 12 -- Ordinance No. 1116
b. Obstruction Permit.
An Obstruction Permit is required by a Registrant to hinder
free and open passage over a specified portion of Right-of-Way
for periods in excess of 8 consecutive hours by placing
Equipment described therein on the Right-of-Way, to the extent
and for the duration specified therein.
An Obstruction Permit is not required if a Person already
possesses a valid Excavation Permit for the same project.
Failure to obtain an obstruction permit prior to the
obstruction will require an after-the-fact obstruction permit
plus payment of a delay penalty.
c. Permit Waiver
In the event of a major catastrophe or emergency declared by
the City requiring the restoration of services that are within
the right-of-way, the requirement for permits and permit fees
may be waived by the City at its discretion.
After restoration of the service has been completed, an updated
mapping plan per Section 407 .21 must be submitted to the City
within 60 days.
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.
3. Delay Penalty.
Notwithstanding subd. 2 of this section, the City shall establish
and impose a Delay Penalty for unreasonable delays 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 in Right-of-Way Excavation, Obstruction,
Patching, or Restoration. The Delay Penalty shall be established
from time to time by City Council resolution.
4 . Permit Display.
Permits issued under this Chapter shall be conspicuously displayed
or otherwise available at all times at the indicated work site and
shall be available for inspection by the City.
Page 13 -- Ordinance No. 1116
SECTION 407.08 . PERMIT APPLICATIONS
Application for a permit is made to the City. Right-of-Way Permit
applications shall contain, and will be considered complete only
upon compliance with the requirements of the following provisions.
a. Registration with the City pursuant to this Chapter;
b. Submission of a completed permit application form,
including all required attachments, and scaled drawings
showing the location and area of the proposed project and
the location of all known existing and proposed Facilities.
c. Payment of money due the City for
1. permit fees, estimated Restoration Costs and other
Management Costs;
2 . prior Obstructions or Excavations;
3. any undisputed loss, damage, or expense suffered by the
City because of Applicant' s prior excavations or
Obstructions of the rights-of-way or any Emergency
actions taken by the City;
4 . franchise or user fees, if applicable.
d. Payment of disputed amounts due the City by posting
security or depositing in an escrow account an amount equal
to at least 110% of the amount owing.
e. When an Excavation Permit is requested for purposes of
installing additional Facilities, and the posting of a
Construction Performance Bond for the additional Facilities
is insufficient, the posting of an additional or larger
Construction Performance Bond for the additional Facilities
may be required.
SECTION 407 . 09. ISSUANCE OF PERMIT; CONDITIONS
1. Permit Issuance.
If the Applicant has satisfied the requirements of this Chapter, the
City shall issue a permit.
2. Conditions.
The City may impose reasonable conditions upon the issuance of the
permit and the performance of the Applicant thereunder to protect
the health, safety and welfare or when necessary to protect the
Right-of-Way and its current use.
Page 14 -- Ordinance No. 1116
SECTION 407 . 10. PERMIT FEES
1. Excavation Permit Fee.
The Excavation Permit Fee shall be established by the City in an
amount sufficient to recover the following costs:
a. the City Management Costs;
b. Mapping Costs;
c. Degradation Costs, if applicable.
2 . Obstruction Permit Fee.
The Obstruction Permit Fee shall be established by the City and
shall be in an amount sufficient to recover the City Management
Costs associated with recording and inspecting the right-of-way
obstruction.
3. Payment of Permit Fees.
a. No Excavation Permit or Obstruction Permit shall be issued
without payment of Excavation or Obstruction Permit Fees.
The City may allow Applicant to pay such fees within thirty
(30) days of billing.
b. The mapping portion of the excavation fees- is waived if the
mapping data provided to the City of Fridley is in GIS
compatible and City format.
4 . Non refundable.
Permit fees that were paid for a permit that the City has revoked
for a breach as stated in Section 407.20 are not refundable.
5. Waiver of Fees.
Payment of fees, as identified in this Chapter, with the exception
of restoration costs, for water and/or sanitary sewer connections to
property in the city are waived. However Registration and the
Right-of-way Permit application must be submitted and approved by
the city prior to commencement of any work.
SECTION 407 .11. RIGHT-OF-WAY PATCHING AND RESTORATION
1. Timing.
The work to be done under the Excavation Permit, and the Patching or
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 407.14.
Page 15 -- Ordinance No. 1116
2. Patch and Restoration.
Permittee shall Patch its own work. The City may choose either to
have the Permittee restore the Right-of-Way or to Restore the
pavement itself.
a. City Restoration.
If the City restores the pavement, Permittee shall pay the
costs thereof within thirty (30) days of billing. If, during
the twenty-four (24) months following such Restoration, the
pavement settles due to Permittee' s improper backfilling, the
Permittee shall pay to the City, within thirty (30) days of
billing, all costs associated with having to correct the
defective work.
b. Permittee Restoration.
If the Permittee Restores the Right-of-Way itself, the City may
require at the time of application for an Excavation Permit the
posting of a Construction Performance Bond in an amount
determined by the City to be sufficient to cover the cost of
Restoration. If, within twenty-four (24) months after
completion of the Restoration of the Right-of-Way, the City
determines that the Right-of-Way has been properly Restored,
the surety on the Construction Performance Bond shall be
released.
3. Standards.
The Permittee shall perform Patching and/or Restoration according to
the standards and with the materials specified by the City. The
City 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 City in exercising this
authority shall comply with PUC standards for Right-of-Way
Restoration and shall further be guided by the following
considerations:
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-of-way that
Page 16 -- Ordinance No. 1116
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.
4 . Guarantees.
By choosing to Restore the Right-of-Way itself, the Permittee
guarantees its work and shall maintain it for twenty-four (24)
months following its completion. During this 24-month period it
shall, upon notification from the City, correct all restoration work
to the extent necessary, using the method required by the City.
Said work shall be completed within five (5) calendar days of the
receipt of the notice from the City, 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 407.14 .
5 . Obligation.
Construction triggers an obligation of the right-of-way user that
the right-of-way restoration be completed according to the
conditions set forth in this Chapter. The right-of-way user also
assumes responsibility for "as built" drawings and for repairing
facilities or structures, including right-of-way that was damaged
during facility installation. The obligation is limited to one year
for plantings and turf establishment.
6. Failure to Restore.
If the Permittee fails to Restore the Right-of-Way in the manner and
to the condition required by the City, or fails to satisfactorily
and timely complete all Restoration required by the City, the City
at its option may do such work. In that event the 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 Construction Performance
Bond.
7. Degradation Cost in Lieu of Restoration.
In lieu of Right-of-Way Restoration, a Right-of-Way user may elect
to pay a Degradation Fee with the approval of the City. However,
the Right-of-Way User shall remain responsible for Patching and the
Degradation Fee shall not include the cost to accomplish these
responsibilities.
Page 17 -- Ordinance No. 1116
SECTION 407 . 12. JOINT APPLICATIONS
1. Joint Application.
Registrants may jointly apply for permits to Excavate or Obstruct
the Right-of-Way at the same place and time.
2. With City Projects.
Registrants who join in a scheduled Obstruction or Excavation
performed by the City, whether or not it is a joint application by
two or more Registrants or a single application, are not required to
pay the Obstruction and Degradation portions of the permit fee.
An excavation permit application however must be completed. In
these circumstances, the excavation fee will be waived.
Mapping data must be provided per Section 407 .21.
3. Shared Fees.
Registrants who apply for permits for the same Obstruction or
Excavation, which the City does not perform, may share in the payment
of the Obstruction or Excavation Permit Fee. Registrants must agree
among themselves as to the portion each will pay and indicate the
same on their applications.
SECTION 407. 13. SUPPLEMENTARY APPLICATIONS
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 obstruct or do any work
outside the area specified in the permit, except as provided herein.
Any Permittee which determines that an area greater than that
specified in the permit must be Obstructed or Excavated must before
working in that greater area (i) make application for a permit
extension and pay any additional fees required thereby, and (ii) be
granted a new permit or permit extension.
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 initial permit end
date.
Page 18 -- Ordinance No. 1116
SECTION 407. 14 . OTHER OBLIGATIONS
1. Compliance With Other Laws.
Obtaining a Right-of-Way Permit does not relieve Permittee of its
duty to obtain all other necessary permits, licenses, and authority
and to pay all fees required by the City or other applicable rule,
law or regulation. A Permittee shall comply with all requirements of
local, state and federal laws, including Minn. Stat. §§ 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.
2 . Prohibited Work.
Except in an Emergency, and with the approval of the City, no Right-
of-Way Obstruction or Excavation may be done when seasonally
prohibited or when conditions are unreasonable for such work.
3. Interference with Right-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 of those doing
work in the Right-of-Way may not be parked within or next to a permit
area, unless parked in conformance with City parking regulations.
The loading or unloading of trucks must be done solely within the
defined permit area unless specifically authorized by the permit.
SECTION 407 . 15. DENIAL OF PERMIT
The City may deny a permit for failure to meet the requirements and
conditions of this Chapter or if the City determines that the denial
is necessary to protect the health, safety, and welfare or when
necessary to protect the Right-of-Way and its current use.
1. Mandatory Denial.
Except in an emergency, no right-of-way permit will be granted.
a. To any person required by Section 407.04 to be registered
who has not done so;
b. To any person required by Section 407.06 to file an annual
report but has failed to do so;
c. To any person who has failed within the past two (2) years
to comply, or is presently not in full compliance, with the
requirements of this Chapter.
Page 19 -- Ordinance No. 1116
d. To any person as to whom there exists grounds for the
revocation of a permit under Section 407.20 or
e. If, in the discretion of the City, the issuance of a permit
for the particular date and/or time would cause a conflict
or interfere with an exhibition, celebration, festival, or
any other event. The City, 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.
2 . Permissive Denial.
The City 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 City may consider one or 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;
f. the degree of disruption to surrounding neighborhoods 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.
Page 20 -- Ordinance No. 1116
3. Discretionary Issuance.
Notwithstanding the provisions of this Section subd. 1, the City 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 development 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.
4 . Permits for Additional Next-year Projects.
Notwithstanding the provisions of this Section subd. 1 above, the
City may issue a permit to a registrant who was allowed under Section
407. 07 Subd. 2, to submit an additional Next-year Project, such
permit to be subject to all conditions and requirements of law,
including such conditions as may be imposed under Section 407.09.
SECTION 407 . 16. INSTALLATION REQUIREMENTS
The excavation, backfilling, patching, repair, and restoration, and
all other work performed in the Right-of-Way shall be done in
conformance with Engineering Standards adopted by the PUC or other
applicable local requirements, in so far as they are not inconsistent
with PUC Rules.
SECTION 407 . 17 . INSPECTION
1. Notice of Completion.
Unless waived by the city, a person designated by the right-of-way
user as a responsible employee shall sign a completion certificate
showing the completion date for the work performed, identifying the
installer and designer of record, and certifying that work was
completed according to the requirements of the city.
If necessary due to approved changes for the work as projected when
the permit was applied for, the permittee shall submit "as built"
drawings or maps within six months of completing the work, showing
any deviations from the plan that are greater than plus or minus two
feet.
The city shall respond within 30 days of receipt of the completion
certificate. Failure to approve or disapprove the permittee' s
performance within 30 days is deemed to be approval by the city.
Page 21 -- Ordinance No. 1116
2. Site Inspection.
Permittee shall make the work-site available to the City and to all
others as authorized by law for inspection at all reasonable times
during the execution of and upon completion of the work.
3. Authority of City.
a. At the time of inspection the City may order the immediate
cessation of any work which poses a serious threat to the
life, health, safety or well-being of the public.
b. The City may issue an order to the Permittee for any work
which does not conform to the terms of the permit or other
applicable standards, conditions, or codes. The order
shall state that failure to correct the violation will be
cause for revocation of the permit. Within ten (10) days
after issuance of the order, the Permittee shall present
proof to the City that the violation has been corrected.
If such proof has not been presented within the required
time, the City may revoke the permit pursuant to Section
407 .20.
SECTION 407 . 18 . WORK DONE WITHOUT A PERMIT
1. Emergency Situations.
Each Registrant shall immediately notify the City of any event
regarding its Facilities 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 City becomes aware of an Emergency regarding a Registrant' s
Facilities, the City will attempt to contact the Local Representative
of each Registrant affected, or potentially affected by the
Emergency. In any event, the City may take whatever action it deems
necessary to respond to the Emergency, the cost of which shall be
borne by the Registrant whose Facilities occasioned the Emergency.
2. Non-Emergency Situations.
Except in an Emergency, any Person who, without first having obtained
the necessary permit, Obstructs or Excavates a Right-of-Way must
subsequently obtain a permit, and as a penalty pay double the normal
fee for said permit, pay double all the other fees required by the
Legislative Code, deposit with the City the fees necessary to correct
Page 22 -- Ordinance No. 1116
any damage to the Right-of-Way and comply with all of the
requirements of this Chapter.
SECTION 407.19. SUPPLEMENTARY NOTIFICATION
If the Obstruction or Excavation of the Right-of-Way begins later or
ends sooner than the date given on the permit, Permittee shall notify
the City of the accurate information as soon as this information is
known.
SECTION 407.20. REVOCATION OF PERMITS
1. Substantial Breach.
The City reserves its right, as provided herein, to revoke any Right=
of-Way Permit, without a fee refund, if there is a substantial breach
of the terms and conditions of any statute, ordinance, rule or
regulation, or any material condition of the permit. A substantial
breach by Permittee shall include, but shall not be limited to, the
following:
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 complete the work in a timely manner; unless
a permit extension is obtained or unless the failure to
complete work is due to reasons beyond the Permittee's
control; or
e. The failure to correct, in a timely manner, work that does
not conform to a condition indicated on an Order issued
pursuant to Section 407.16.
2 . Written Notice of Breach.
If the City determines that the Permittee has committed a substantial
breach of a term or condition of any statute, ordinance, rule,
regulation or any condition of the permit the City shall make a
written demand upon the Permittee to remedy such violation. The
demand shall state that continued violations may be cause for
revocation of the permit. A substantial breach, as stated above,
will allow the City to place additional or revised conditions on the
permit to mitigate and remedy the breach.
Page 23 -- Ordinance No. 1116
3. Response to Notice of Breach.
Within twenty-four (24) hours of receiving notification of the
breach, Permittee shall provide the City with a plan, acceptable to
the City, that will cure the breach. Permittee' s failure to so
contact the City, or the Permittee' s failure to submit an acceptable
plan, or Permittee' s failure to reasonably implement the approved
plan, shall be cause for immediate revocation of the permit.
Further, Permittee' s failure to so contact the City, or the
Permittee' s failure to submit an acceptable plan, or Permittee' s
failure to reasonably implement the approved plan, shall
automatically place the Permittee on Probation for one (1) full year.
4 . Cause for Probation.
From time to time, the City 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 grossly
outside of the permit authorization.
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.
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.
SECTION 407.21. MAPPING DATA
1. Information Required.
Each Registrant shall provide Mapping information required by the
City to include the following information:
a. location and approximate depth of applicant' s mains, cables,
conduits, switches, and related equipment and facilities,
with the location based on:
1. offsets from property lines, distances from the
centerline of the public right—of-way, and curb lines
as determined by the city; or
2. coordinates derived from the coordinate system being
used by the city; or
Page 24 -- Ordinance No. 1116
3. any other system agreed upon by the right-of-way user
and city;
b. the type and size of the utility;
c. a description showing above-ground appurtenances;
d. a legend explaining symbols, characters, abbreviations,
scale, and other data shown on the map; and
e. Mapping data shall be provided with the specificity
requested by the City for inclusion in the mapping system
used by the city.
f. For mapping data provided to the City of Fridley in GIS
compatible and City format, the mapping portion of the
excavation fee is waived.
2. Submittal Requirement.
a. Within six (6) months after the acquisition, installation,
or construction of additional equipment or any relocation,
abandonment, or disuse of existing equipment, each
registrant shall submit the Mapping Data required herein.
b. Within two (2) years after the date of passage of this
Chapter, all existing right-of-way users shall submit
detailed plans as may be reasonable and practical for all
facilities and equipment installed, used or abandoned within
the public right-of-way.
c. Notwithstanding 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.
d. 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
are sought under these ordinances.
3. 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.
Page 25 -- Ordinance No. 1116
4. Trade Secret Information.
At the request of any Registrant, any information requested by the
City, which qualifies as a "trade-secret" under Minn. Stat. §
13.37 (b) shall be treated as trade secret information as detailed
therein.
SECTION 407.22 . LOCATION OF FACILITIES
1. Undergrounding.
New construction and the installation of new facilities shall be done
underground or contained within buildings or other structures in
conformity with applicable codes when directed by the City Council.
2. Corridors.
The City may assign specific corridors within the Right-of-Way, or
any particular segment thereof as may be necessary, for each type of
Facility that is or, pursuant to current technology, the City expects
will someday be located within the Right-of-Way. All excavation,
obstruction, or other permits issued by the City involving the
installation or replacement of Facilities shall designate the proper
corridor for the Facilities at issue.
Any Registrant who has Facilities in the Right-of-Way in a position
at variance with the corridors established by the City shall, no
later than at the time of the next reconstruction or excavation of
the area where the Facilities are located, move the Facilities to the
assigned position within the Excavation of the Right-of-Way, unless
this requirement is waived by the City for good cause shown, upon
consideration of such factors as the remaining economic life of the
Facilities, public safety, customer Service needs and hardship to the
Registrant.
3. Limitation of Space.
To protect public health, safety, and welfare or when necessary to
protect the Right-of-Way and its current use, the City shall have the
power to prohibit or limit the placement of new or additional
Facilities within the Right-of-Way. In making such decisions, the
City shall strive to the extent possible to accommodate all existing
and potential users of the Right-of-Way, but shall be guided
primarily by considerations of the public interest, the public' s
needs for the particular Utility Service, the condition of the Right-
of-Way, the time of year with respect to essential utilities, the
protection of existing Facilities in the Right-of-Way, and future
City plans for public improvements and development projects which
have been determined to be in the public interest.
Page 26 -- Ordinance No. 1116
SECTION 407 .23. RELOCATION OF FACILITIES
A Registrant must promptly and at its own expense, with due regard
for seasonal working conditions, permanently remove and relocate its
Facilities in the Right-of-Way whenever the City for good cause
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 City 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 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 Facilities 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.
SECTION 407 .24 . PRE-EXCAVATION FACILITY AND FACILITIES 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
Facilities or Equipment in the area to be excavated shall mark the
horizontal and approximate vertical placement of all said Facilities.
Any Registrant whose Facilities is less than twenty (20) inches below
a concrete or asphalt surface shall notify and work closely with the
excavation contractor to establish the exact location of its
Facilities and the best procedure for excavation.
SECTION 407 .25. DAMAGE TO OTHER FACILITIES
When the City does work in the Right-of-Way and finds it necessary to
maintain, support, or move a Registrant' s Facilities to protect it,
the City shall notify the Local Representative as early as is
reasonably possible. The costs associated therewith will be billed
to that 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
Facilities in the Right-of-Way which it or its Facilities damages.
Each Registrant shall be responsible for the cost of repairing any
damage to the Facilities of another Registrant caused during the
City' s response to an Emergency occasioned by that Registrant' s
Facilities.
Page 27 -- Ordinance No. 1116
SECTION 407 .26. RIGHT-OF-WAY VACATION
1. Reservation of Right.
If the City vacates a Right-of-Way which contains the Facilities of a
Registrant, and if the vacation does not require the relocation of
Registrant' s or Permittee's Facilities, the City shall reserve, to
and for itself and all Registrants having Facilities in the vacated
Right-of-Way, the right to install, maintain and operate any
Facilities in the vacated Right-of-Way and to enter upon such Right-
of-Way at any time for the purpose of reconstructing, inspecting,
maintaining or repairing the same.
2. Relocation of Facilities.
If the vacation requires the relocation of Registrant' s or
Permittee' s Facilities; and (i) if the vacation proceedings are
initiated by the Registrant or Permittee, the Registrant or Permittee
must pay the relocation costs; or (ii) 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 (iii) 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.
SECTION 407 .27 . INDEMNIFICATION AND LIABILITY
By registering with the City, or by accepting a permit under this
Chapter, a Registrant or Permittee agrees as follows:
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 (i) for
injuries to Persons, damage to property, or loss of Service claims by
parties other than the Registrant or the City, or (ii) for claims or
penalties of any sort resulting from the installation, presence,
maintenance, or operation of Facilities by Registrants or activities
of Registrants.
2 . Indemnification.
A Registrant or Permittee shall indemnify, keep, and hold the City
free and harmless from any and all liability on account of injury to
Persons or damage to property occasioned by the issuance of permits
or by the construction, maintenance, repair, inspection or operation
of Registrant' s or Permittee' s Facilities located in the Right-of-
Way.
The City shall not be indemnified for losses or claims occasioned
through its own negligence except for losses or claims arising out of
Page 28 -- Ordinance No. 1116
or alleging the local government unit' s negligence as to the issuance
of permits or inspections to ensure permit compliance. The City
shall not be indemnified if the injury or damage results from the
performance in a proper manner of acts that the Registrant or
Permittee reasonably believes will cause injury or damage, and the
performance is nevertheless ordered or directed by the City after
receiving notice of the Registrant' s or Permittee' s determination.
3. Defense.
If a suit is brought against the City under circumstances where the
Registrant or Permittee is required to indemnify, the Registrant or
Permittee, at its sole cost and expense, shall defend the City in the
suite if written notice of the suite is promptly given to the
Registrant or Permittee within a period in which the Registrant or
Permittee is not prejudiced by the lack or delay of notice.
If the Registrant or Permittee is required to indemnify and defend,
it shall thereafter have control of the litigation, but the
Registrant or Permittee may not settle the litigation without the
consent of the City. Consent will not be unreasonably withheld.
This part is not, as to third parties, a waiver of any defense,
immunity, or damage limitation otherwise available to the City.
In defending an action on behalf of the City the Registrant or
Permittee is entitled to assert in an action every defense, immunity,
or damage limitation that the City could assert in its own behalf.
SECTION 407 .28 . ABANDONED AND UNUSABLE FACILITIES
1. Discontinued Operations.
A Registrant who has determined to discontinue its operations in the
City must either:
a. Provide information satisfactory to the City that the
Registrant' s obligations for its Facilities in the Right-of-
Way under this Chapter have been lawfully assumed by another
Registrant; or
b. Submit to the City a proposal and instruments for
transferring ownership of its Facilities to the City. If a
Registrant proceeds under this clause, the City may, at its
option:
1. purchase the Facilities; or
2 . require the Registrant, at its own expense, to remove
it; or
Page 29 -- Ordinance No. 1116
III3. 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
Facilities.
2. Abandoned Facilities.
Facilities of a Registrant who fails to comply with subd. 1 of this
Section, and which, for two (2) years, remains unused or one year
after the passage of this Chapter, any Facilities found in a Right-
of-Way that have not been Registered with the city shall be deemed to
be abandoned. Abandoned Facilities is deemed to be a nuisance. The
City may exercise any remedies or rights it has as law or in equity,
including, but not limited to, (i) abating the nuisance, (ii) taking
possession of the Facilities and restoring the Right-of-Way to a
useable condition, or (iii) requiring removal of the Facilities by
the Registrant, or the Registrant' s successor in interest.
3. Removal.
Any Registrant who has unused, unusable and abandoned Facilities in
any Right-of-Way shall remove it from that Right-of-Way within and
during the next scheduled excavation, unless this requirement is
waived by the City.
SECTION 407 .29. APPEAL
a. A Right-of-Way user that: (1) has been denied registration;
(2) has been denied a permit; (3) has had a permit revoked;
or (4) believes that the fees imposed are invalid, may have
the denial, revocation, or fee imposition reviewed, upon
written request, by the City Council. The City Council
shall act on a timely written request at its next regularly
scheduled meeting. A decision by the City Council affirming
the denial, revocation, or fee imposition will be in writing
and supported by written findings establishing the
reasonableness of the decision.
b. Upon affirmation by the City Council of the denial,
revocation, or fee imposition, the Right-of-Way User shall
have the right to have the matter resolved by binding
arbitration if agreed to by the city. Binding arbitration
must be before an arbitrator agreed to by both the City
Council and Right-of-Way User. If the parties cannot agree
on an arbitrator, the matter must be resolved by a three-
person arbitration panel made up of one arbitrator selected
by the City, one arbitrator selected by the Right-of-Way
User and one selected by the other two arbitrators. The
costs and fees of a single arbitrator shall be borne equally
by the City and Right-of-Way User. In the event there is a
third arbitrator, each party shall bear the expense of its
own arbitrator and shall jointly and equally bear with the
Page 30 -- Ordinance No. 1116
other party the expense of the third arbitrator and of the
arbitration.
SECTION 407 .30. RESERVATION OF REGULATORY AND POLICE POWERS
A Permittee' s or Registrant' s rights are subject to the regulatory
and police powers of the City to adopt and enforce general ordinances
necessary to protect the health, safety and welfare of the public.
SECTION 407.31. 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
permit and the right of termination. Nothing in this Chapter
precludes the City from requiring a franchise agreement with the
Applicant, as allowed by law, in addition to requirements set forth
herein.
SECTION 407.32
Any fees imposed under this chapter shall be reviewed and adopted at
least annually at the same time and in the same manner as other fees
established by the City.
At any time, in its discretion, the City expressly reserves the right
to review the fees imposed in this Chapter and, upon notice and
public hearing, modify them if it is satisfied that such action is
necessary to reflect the cost of regulating and supervising the
activities governed by this chapter.
CHAPTER 11, GENERAL PROVISIONS AND FEES
Section 11. 10 "Fees" is amended to include the following:
407.04 Registration Fee $22.50
407 .07 Excavation Permit $200.00
Page 31 -- Ordinance No. 1116
407 . 07 Obstruction Permit $15.00
407 .07 Permit Extension $15.00
407 . 07 Delay Penalty Permit extension fee plus
$100.00 penalty
407. 10 Mapping Fee $10 if data is not in City
format and City GIS
compatible
407 . 11 Degradation Cost Restoration cost per square
foot for the area to be
restored
407.05 User Fee $10 per project
(Residential, commercial or
industrial)
PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF FRIDLEY THIS
20TH DAY OF APRIL, 1998 .
CY J. GE:SO , - MAYOR
ATTEST: r//pJ
WILLIAM A. CHAMPA - C Y CLERK
Public Hearing: February 23, 1998
First Reading: March 2, 1998
Second Reading: April 20, 1998
Publication: April 23, 1998