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HomeMy WebLinkAbout#05 - Right of Way Management9/9/2024 Provided by Councilmember Dragisich I wanted to provide some information on the City's ROW management. Our City Code section 9.20 Right-Of-Way Management Permits provides for right-of-way management. Section 9.20.020 Election to Manage the Public Rights-Of-Way states: 9.20.020 Election To Manage The Public Rights-Of-Way Pursuant to the authority granted to the city under state and federal statutory, administrative, and common law, the city hereby elects, pursuant to M.S.A. § 237.163, subd. 2b, to manage rights-of-way within its jurisdiction. Some definitions in 9.20 Right of Way Management Permits applicable to our workshop discussion include: Degradation means the accelerated depreciation of the right-of-way caused by excavation in or disturbance of the right-of-way, resulting in the need to reconstruct the right-of-way earlier than would be required if the excavation did not occur. 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; the cost to achieve a level of restoration, subject to Minn. R. part 7819.1100, as determined by the city at the time the permit is issued, not to exceed the maximum restoration shown in plates one to 13, set forth in Minn. R. parts 7819.9900 to 7819.9950. 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 cost. Management 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 or small wireless facility 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 after providing notice and the opportunity to correct the work; and revoking right-of-way or small wireless facility permits and performing all other tasks required by this chapter, including other costs the city may incur in managing the provisions of this chapter. The term "management cost" does not include payment by a telecommunications right-of- way user for the use of the right-of-way, unreasonable fees of a third-party contractor used by the city including fees tied to or based on customer counts, access lines, or revenues generated by the right-of-way or for the city, the fees and costs of litigation relating to the interpretation of M.S.A. § 237.162 or 237.163, as they may be amended from time to time, or any ordinance enacted under those sections, or the city's fees and costs related to appeals taken pursuant to LEC 9.20.340. Right of Way Management September 10, 2024 Page 2 Restoration cost means an amount of money paid to the city by a permittee to achieve the level of restoration according to plates 1 to 13 of the state public utilities commission rules. 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 and life expectancy that existed before excavation. Section 9.20.160 Right-Of-Way Patching And Restoration (c) Standards. The permittee shall perform excavation, backfilling, patching, and restoration according to the standards and with the materials specified by the city and shall comply with Minn. R. part 7819.1100. 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 be guided by the following standards and considerations: (1) The number, size, depth, and duration of the excavations, disruptions, or damage to the right-of-way; (2) The traffic volume carried by the right-of-way; (3) The character of the neighborhood surrounding the right-of-way; (4) The pre-excavation condition of the right-of-way; (5) The remaining life-expectancy of the right-of-way affected by the excavation; (6) 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 would otherwise result from the excavation, disturbance, or damage to the right-of-way; and (7) The likelihood that the particular method or restoration would be effective in slowing the depreciation of the right-of-way that would otherwise take place. MN Rules Part 7819.1100 Subpart 1. Restoration standards. Restoration must return the right-of-way to the same condition that existed before excavation. Subject to this standard, plates 1 to 13, shown in parts 7819.9900 to 7819.9950, indicate maximum limits of restoration methods and area requirements the local government unit can impose when a right-of-way user excavates in the public right-of-way. The local government unit and right-of-way user may agree to a lesser requirement. The right-of-way user is responsible for all of its work done in the public right-of-way, whether by employees, agents, or independent contractors. Subp. 2. Levels of restoration. All levels of restoration include compaction of the materials placed in the excavation of the subgrade and aggregate base, plus pavement Right of Way Management September 10, 2024 Page 3 replacement, in kind. If required by the local government unit, all work must be performed according to the local government unit's specifications and drawings. Subp. 3. Degradation fee. A right-of-way user may elect to pay a degradation fee in lieu of restoration. However, the right-of-way user shall remain responsible for replacing and compacting the subgrade and aggregate base material in the excavation and the degradation fee must not include the cost to accomplish these responsibilities. Standard Plates 1 to 13, shown in parts 7819.9900 to 7819.9950 are shown in the attached Minnesota Rules 7819. Right-of-Way management includes determining the cost associated with utilities located within the City’s Rights-Of-Way. To fulfills the City’s fiduciary and stewardship responsibility to the public, it must develop policies to effectively manage their right-of-way in addition to creating methods for identifying and recovering public costs involved with this process. This need is driven, in part, by the significant investment the City has made in its rights-of-way. It is important to understand that the costs incurred by the City in managing its rights-of-way are not one-time costs, but rather are annual costs that increase each year as a result of inflation. Right-Of-Way Management Plan A public right-of-way management plan should reflect the City’s actual costs associated with the management of its rights-of-way on an annual basis. The process to develop such a plan needs to include a review of all the City’s activities related either directly or indirectly to managing its rights-of-way and the costs it incurs as a result of utilities located within the rights-of-way. These costs include: Overhead Costs The obvious components of any service cost are the direct and indirect costs (i.e. labor, supplies, vehicles, space utilization, management information services, etc.) committed to an activity. Not as obvious are the costs incurred by support activities that must be undertaken in order for the direct labor personnel to successfully complete their mission. When determining the total cost for management of the public rights-of-way, these administrative overhead costs must be included. Degradation Costs Degradation is defined as depreciation to the roadway, alleys, sidewalks, boulevard/landscaped areas, other infrastructure, and amenities that result from intrusion into the public right-of-way. Numerous public right-of-way cost recovery studies have concluded that when projects intrude into the surface of a street there is a definable reduction in the remaining life of the street. Construction Costs The presence of utilities within the right-of way increases the cost of construction and reconstruction for City. Costs affected by the presence of utilities include construction Right of Way Management September 10, 2024 Page 4 planning, design, project inspection and management, and actual construction. The increased costs of engineering and construction resulting from utilities within the right- of-way increases the amount the City must borrow and the corresponding interest costs on that debt Operating Costs The City incurs operating costs in managing and maintaining the right-of-way. These costs can be identified within a number of the City’s operating funds including the General Fund, Internal Service Funds, Special Revenue Funds, Enterprise Funds, Risk Management Fund, Equipment Maintenance Fund, and other funds depending on the City’s fund structure. These costs should be adjusted to include the overhead costs incurred by the City. Disruption Costs Disruption costs are those costs that result in the interruption of the normal use of the public right-of-way. The most common disruptions relate to lane closures and detours. The disruption costs identified should be based on an estimate of the additional distance traveled by the vehicles owned by the City resulting from the closure of streets due to intrusions. An overhead amount is added to arrive at the total annual cost related to disruption Return on Investment The City has made a significant investment in the assets located within the right-of-way. These generally include street pavements, sidewalks, lighting, traffic controls, right-of- way purchased (not dedicated without cost to the local government) and other assets. All of these assets benefit the utility located in the right-of-way. To determine the annual return on investment, the local government needs to determine the net value of these assets (cost of acquisition less depreciation) and then establish an appropriate rate of return on this investment Depreciation Costs incurred in the operation of the right-of-way are either recorded as operating expenses or capitalized as assets. Whether the cost is expensed immediately or capitalized, the City actually pays for the asset at the time it is acquired. Generally, anything that is used up in the period in which the cost of acquiring it is incurred is treated as an operating expense. Personnel, supplies, and repairs and maintenance are typical examples of costs that are treated as operating expenses. These costs are shown in the financial statements each year in the total amount of the expenditure for each category. The cost incurred in the acquisition or construction of assets such as pavement, lighting, traffic controls, etc. are recorded as capital expenditures. That means these costs do not show up as an operating expense in the year in which the expenditure occurs, rather the cost of these assets is depreciated. Depreciation is the process of allocating the cost of an asset over its useful life in a systematic and rational manner. A proportion of the annual depreciation expense can be allocated to the utilities within the right-of-way. Right of Way Management September 10, 2024 Page 5 CHAPTER 7819​ PUBLIC UTILITIES COMMISSION​ PUBLIC RIGHTS-OF-WAY STANDARDS​ APPLICABILITY.​7819.0050​ DEFINITIONS.​7819.0100​ HIGH-DENSITY CORRIDOR.​7819.0200​ FEES AND PENALTIES.​7819.1000​ RESTORATION OF RIGHT-OF-WAY.​7819.1100​ NOTICE.​7819.1200​ INDEMNIFICATION.​7819.1250​ COMPLETION CERTIFICATE.​7819.1300​ CONSTRUCTION PERFORMANCE BOND.​7819.3000​ RELOCATION OF EXISTING FACILITIES.​7819.3100​ RIGHT-OF-WAY VACATION.​7819.3200​ ABANDONED FACILITIES.​7819.3300​ MAPPING SYSTEMS​ AUTHORITY; PURPOSE.​7819.4000​ REQUIRED MAPPING INFORMATION.​7819.4100​ FACILITY INSTALLATION, CONSTRUCTION, LOCATION​ INSTALLATION OF TELECOMMUNICATIONS FACILITY.​7819.5000​ CONSTRUCTION AND LOCATION REQUIREMENTS.​7819.5100​ UTILITY TRENCH RESTORATION; PLATES 1 AND 2.​7819.9900​ UTILITY TRENCH RESTORATION; PLATES 3 AND 4.​7819.9905​ UTILITY TRENCH RESTORATION; PLATE 5.​7819.9910​ UTILITY TRENCH RESTORATION; PLATE 6.​7819.9915​ UTILITY HOLE RESTORATION; PLATE 7.​7819.9920​ UTILITY HOLE RESTORATION; PLATE 8.​7819.9925​ UTILITY HOLE RESTORATION; PLATE 9.​7819.9930​ UTILITY HOLE RESTORATION; PLATE 10.​7819.9935​ TYPICAL ROAD PLAN; PLATE 11.​7819.9940​ TYPICAL ROAD RESTORATION; PLATE 12.​7819.9945​ TYPICAL ROAD SHOULDER RESTORATION; PLATE 13.​7819.9950​ 7819.0050 APPLICABILITY.​ With the exception of part 7819.1100, subparts 1 and 2, and the associated plates at parts​ 7819.9900 to 7819.9950, part 7819.1200, part 7819.5000, and part 7819.5100, this chapter applies​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 7819.0050​MINNESOTA RULES​1​ to all local government units that have elected, pursuant to Minnesota Statutes, section 237.163,​ subdivision 2, to exercise the authority to manage their public rights-of-way under Minnesota​ Statutes, sections 237.162 and 237.163. Part 7819.1100, subparts 1 and 2 and the associated plates​ at parts 7819.9900 to 7819.9950, part 7819.1200, part 7819.5000, and part 7819.5100 apply whether​ or not the local government unit has elected to manage its public right-of-way under Minnesota​ Statutes, sections 237.162 and 237.163. Part 7819.1200 is not applicable to a local government unit​ that has adopted an ordinance requiring a right-of-way user to obtain a permit or to provide a notice​ for certain types of work in lieu of a permit.​ This chapter applies to all right-of-way users as defined in part 7819.0100, subpart 21.​ For right-of-way users subject to the franchising authority of a local government unit, to the​ extent that rights, duties, and obligations regarding the use of the public right-of-way are addressed​ in the terms of any applicable franchise agreement, the terms of the franchise prevail over any​ conflicting provisions in this chapter.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ 7819.0100 DEFINITIONS.​ Subpart 1.Scope.The terms used in this chapter have the meanings given in this part.​ Subp. 2.Abandoned facility."Abandoned facility" means a facility no longer in service or​ physically disconnected from a portion of the operating facility, or from any other facility, that is​ in use or still carries service. A facility is not abandoned unless declared so by the right-of-way​ user.​ The definition of abandoned facility in this chapter is not meant to affect the treatment of the​ term abandoned facility under any other rules.​ Subp. 3.City."City" means a statutory or home rule charter city.​ Subp. 4.Commission."Commission" means the state Public Utilities Commission.​ Subp. 5.Congested right-of-way."Congested right-of-way" means a crowded condition in​ the subsurface of the public right-of-way that occurs when the maximum lateral spacing between​ existing underground facilities does not allow for construction of new underground facilities without​ using hand digging to expose the existing lateral facilities in conformance with Minnesota Statutes,​ section 216D.04, subdivision 3, over a continuous length in excess of 500 feet.​ Subp. 6.Construction performance bond."Construction performance bond," as referenced​ in Minnesota Statutes, section 237.162, subdivision 8, clause (2), means any of the following forms​ of security provided at the permittee's option:​ A.individual project bond;​ B.cash deposit;​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 2​MINNESOTA RULES​7819.0050​ C.security of a form listed or approved under Minnesota Statutes, section 15.73, subdivision​ 3;​ D.letter of credit, in a form acceptable to the local government unit;​ E.self-insurance, in a form acceptable to the local government unit; and​ F.a blanket bond for projects within the local government unit, or other form of construction​ bond, for a time specified and in a form acceptable to the local government unit.​ Subp. 7.Degradation cost."Degradation cost" means the cost to achieve a level of restoration​ as determined by the local government unit at the time the permit is issued, not to exceed the​ maximum restoration shown in plates 1 to 13, which are set forth in parts 7819.9900 to 7819.9950.​ Subp. 8.Degradation fee."Degradation fee" means the estimated fee established at the time​ of permitting by the local government unit 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 cost.​ Subp. 9.Facility."Facility" means any tangible asset in the public right-of-way required to​ provide utility service.​ Subp. 10.Five-year project plan."Five-year project plan" shows projects adopted by the​ local government unit for construction within the next five years.​ Subp. 11.High-density corridor."High-density corridor" means a designated portion of the​ public right-of-way within which telecommunications right-of-way users having multiple and​ competing facilities may be required to build and install facilities in a common conduit system or​ other common structure.​ Subp. 12.Hole."Hole" means an excavation in the pavement, with the excavation having a​ length less than the width of the pavement.​ Subp. 13.Local government unit."Local government unit" has the meaning given it in​ Minnesota Statutes, section 237.162.​ Subp. 14.Patch."Patch" 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 local​ government unit's five-year project plan.​ Subp. 15.Pavement."Pavement" means any type of improved surface that is within the public​ right-of-way and that is paved or otherwise constructed with bituminous, concrete, aggregate, or​ gravel.​ Subp. 16.Permit."Permit" has the meaning given "right-of-way permit" in Minnesota Statutes,​ section 237.162.​ Subp. 17.Permittee."Permittee" means a person to whom a permit to excavate or obstruct a​ right-of-way has been granted by a local government unit under this chapter.​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 7819.0100​MINNESOTA RULES​3​ Subp. 18.Person."Person" means an individual or entity subject to the laws and rules of this​ state, however organized, whether public or private, whether domestic or foreign, whether for profit​ or nonprofit, and whether natural, corporate, or political. Examples include:​ A.a business or commercial enterprise organized as any type or combination of corporation,​ limited liability company, partnership, limited liability partnership, proprietorship, association,​ cooperative, joint venture, carrier or utility, and any successor or assignee of any of them;​ B.a social or charitable organization; and​ C.any type or combination of political subdivision, which includes the executive, judicial,​ or legislative branch of the state, a local government unit, or a combination of any of them.​ Subp. 19.Public right-of-way."Public right-of-way" has the meaning given it in Minnesota​ Statutes, section 237.162.​ Subp. 20.Restoration."Restoration" means the process by which an excavated public​ right-of-way and surrounding area, including pavement and foundation, is returned to the same​ condition that existed before excavation.​ Subp. 21.Right-of-way user."Right-of-way user" means: (1) a telecommunications​ right-of-way user as defined by Minnesota Statutes, section 237.162, subdivision 4; or (2) a person​ owning or controlling a facility in the public right-of-way that is used or is intended to be used for​ providing utility service, and who has a right under law, franchise, or ordinance to use the public​ right-of-way.​ Subp. 22.Temporary surface."Temporary surface" means the compaction of subbase and​ aggregate base and replacement, in kind, of the existing pavement only to the edges of the excavation.​ It is temporary in nature except when the replacement is of pavement included in the local​ government unit's two-year project plan, in which case it is considered full restoration.​ Subp. 23.Trench."Trench" means an excavation in the pavement, with the excavation having​ a length equal to or greater than the width of the pavement.​ Subp. 24.Two-year project plan."Two-year project plan" shows projects adopted by the​ local government unit for construction within the next two years.​ Subp. 25.Utility service."Utility service" includes: (1) services provided by a public utility​ as defined in Minnesota Statutes, section 216B.02, subdivisions 4 and 6; (2) services of a​ telecommunications right-of-way user, including the transporting of voice or data information; (3)​ services provided by a cable communications system as defined in Minnesota Statutes, chapter​ 238; (4) natural gas or electric energy or telecommunications services provided by a local government​ unit; (5) services provided by a cooperative electric association organized under Minnesota Statutes,​ chapter 308A; and (6) water, sewer, steam, cooling, or heating services.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 4​MINNESOTA RULES​7819.0100​ 7819.0200 HIGH-DENSITY CORRIDOR.​ An ordinance establishing the procedure for installing a high-density corridor must conform to​ the following standards:​ A.The ordinance must provide for competitive neutrality among telecommunications​ right-of-way users.​ B.The local government unit's procedure to establish the high-density corridor must include​ the following elements:​ (1)a need and opportunity analysis by the local government unit;​ (2)a finding by the local government unit that the designated portion of the public​ right-of-way is, or will imminently be, congested right-of-way;​ (3)a determination by the local government unit governing council that a high-density​ corridor should be established;​ (4)notice and opportunity for interested parties to be heard on the proposed high-density​ corridor;​ (5)the development by the local government unit of a cost study that includes the​ allocation of the cost of building and maintaining the high-density corridor, principles of cost​ recovery, and the allocation of capacity within it, which must be submitted to public hearing and​ review by the governing body of the local government unit; and​ (6)the opportunity for any party providing utility service in the applicable right-of-way​ to appeal the governing body's adoption of the cost study to the commission.​ C.Existing telecommunications facilities shall not be relocated to the high-density corridor,​ unless required pursuant to part 7819.3100.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ 7819.1000 FEES AND PENALTIES.​ Subpart 1.Permit fee.A local government unit that requires a permit for excavation in or​ obstruction of the public right-of-way shall make its permit fee schedule available to the public.​ The permit fee schedule must be established in advance and designed to recover the local government​ unit's actual costs incurred in managing the public right-of-way.​ Subp. 2.Allocation of permit fees.Permit fees must be based on an allocation among all​ users of the public right-of-way, which shall include the local government unit itself, so as to reflect​ the proportionate costs imposed on the local government unit by each of the various types of users​ of the public rights-of-way. Although the local government unit must be allocated its proportionate​ share of permit fees, the local government unit need not transfer funds to pay permit fees.​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 7819.1000​MINNESOTA RULES​5​ Permit fees must be allocated in a competitively neutral manner and must be imposed in a​ manner so that aboveground uses of public rights-of-way do not bear costs incurred by the local​ government unit to regulate underground uses of public rights-of-way.​ Subp. 3.Delay penalty.A local government unit may establish and impose a reasonable​ penalty for unreasonable delays in right-of-way excavation, obstruction, patching, or restoration.​ The delay penalty must be established from time to time by resolution of the local government​ unit's governing body. A delay penalty must not be imposed if the delay in project completion is​ due to circumstances beyond the control of the applicant, including without limitation inclement​ weather, acts of God, or civil strife.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ 7819.1100 RESTORATION OF RIGHT-OF-WAY.​ Subpart 1.Restoration standards.Restoration must return the right-of-way to the same​ condition that existed before excavation. Subject to this standard, plates 1 to 13, shown in parts​ 7819.9900 to 7819.9950, indicate maximum limits of restoration methods and area requirements​ the local government unit can impose when a right-of-way user excavates in the public right-of-way.​ The local government unit and right-of-way user may agree to a lesser requirement.​ The right-of-way user is responsible for all of its work done in the public right-of-way, whether​ by employees, agents, or independent contractors.​ Subp. 2.Levels of restoration.All levels of restoration include compaction of the materials​ placed in the excavation of the subgrade and aggregate base, plus pavement replacement, in kind.​ If required by the local government unit, all work must be performed according to the local​ government unit's specifications and drawings.​ Subp. 3.Degradation fee.A right-of-way user may elect to pay a degradation fee in lieu of​ restoration. However, the right-of-way user shall remain responsible for replacing and compacting​ the subgrade and aggregate base material in the excavation and the degradation fee must not include​ the cost to accomplish these responsibilities.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ 7819.1200 NOTICE.​ Subpart 1.Requirement.Except in the case of an emergency, before initiating excavation in​ a public right-of-way, obstruction of a public right-of-way for more than two hours, or obstruction​ of more than one lane of traffic, the right-of-way user shall notify the local government unit in​ writing. The information in the notice must include the name, address, and telephone number of​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 6​MINNESOTA RULES​7819.1000​ the right-of-way user and any contractors involved in the excavation; the anticipated start and​ completion dates; the typical depth of the lines; and the general location of the work.​ Subp. 2.Waiver.The local government unit may waive all or any portion of the requirements​ of subpart 1. A waiver of the notice requirement must be renewed on an annual basis, unless a​ different waiver period is agreed to by the local government unit.​ Subp. 3.Applicability.This part is not applicable to a local government unit that has adopted​ an ordinance requiring a right-of-way user to obtain a permit or to provide a notice for certain types​ of work in lieu of a permit.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ 7819.1250 INDEMNIFICATION.​ Subpart 1.Authority, generally.As a condition for issuing a permit for work on a public​ right-of-way, a local government unit may require the permittee to indemnify the local government​ unit against liability claims. The local government unit may require indemnification when a permit​ authorizes a permittee to obstruct or excavate on or within a public right-of-way to install, maintain,​ or repair the permittee's facilities.​ Subp. 2.Claims indemnified.The local government unit may require the permittee to defend,​ indemnify, and hold harmless the local government unit from all liability or claims of liability for​ bodily injury or death to persons, or for property damage, in which the claim:​ A.alleges a negligent or otherwise wrongful act or omission of the permittee or its employee,​ agent, or independent contractor in installing, maintaining, or repairing the permittee's facilities;​ and alleges that the local government unit is liable, without alleging any independent negligent, or​ otherwise wrongful, act or omission on the part of the local government unit; or​ B.is based on the local government unit's negligent or otherwise wrongful act or omission​ in issuing the permit or in failing to properly or adequately inspect or enforce compliance with a​ term, condition, or purpose of the permit granted to the permittee.​ Subp. 3.Claims not indemnified.A permittee is not required to indemnify a local government​ unit for losses or claims occasioned by the negligent or otherwise wrongful act or omission of the​ local government unit, except:​ A.to the extent authorized in subpart 2 regarding the issuance of a permit or the inspection​ or enforcement of compliance with the permit; or​ B.when otherwise provided in an applicable franchise agreement.​ Subp. 4.Remedy is additional; subrogation.A defense or indemnification of a local​ government unit by a permittee is deemed not to be a waiver of any defense or immunity otherwise​ available to the local government unit.​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 7819.1250​MINNESOTA RULES​7​ A permittee, in defending any action on behalf of the local government unit, is entitled to assert​ every defense or immunity that the local government unit could assert in its own behalf.​ Subp. 5.Local government unit's authorization to proceed.A local government unit's​ authorization to proceed with excavation or obstruction in the right-of-way pursuant to notice under​ part 7819.1200 is deemed a permit for the purpose of this part.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ 7819.1300 COMPLETION CERTIFICATE.​ Subpart 1.Requirement.If required by the local government unit as part of its permit process,​ 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 local​ government unit.​ Subp. 2."As built" drawings.If required by the local government unit as part of its permit​ process and if necessary due to changes from 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.​ Subp. 3.Response.The local government unit 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 local government unit.​ Subp. 4.Obligation.Construction triggers an obligation of the right-of-way user that the​ right-of-way restoration be completed according to the conditions in part 7819.1100. 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.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ 7819.3000 CONSTRUCTION PERFORMANCE BOND.​ Subpart 1.Authority to require performance bond.At the time of application for an​ excavation permit, the local government unit may require a right-of-way user who elects to restore​ the right-of-way to post a construction performance bond, as defined in part 7819.0100, subpart 6.​ A local government unit does not need to provide a construction performance bond to ensure​ the restoration of streets following its own excavation.​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 8​MINNESOTA RULES​7819.1250​ Subp. 2.Amount.The security provided by a construction performance bond must cover an​ amount reasonably estimated to restore the right-of-way to the condition that existed before the​ excavation, and may also include reasonable, directly related costs that the local government unit​ estimates will be incurred if the right-of-way user fails to perform under the bond. Litigation costs​ and attorney fees are not direct costs to be included in calculating the amount of the bond.​ Subp. 3.Term.If, 24 months after completion of the restoration of the right-of-way, the​ representative of the local government unit determines that the right-of-way has been properly​ restored, the surety on the construction performance bond must be released.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ 7819.3100 RELOCATION OF EXISTING FACILITIES.​ Subpart 1.Requirement.A right-of-way user shall promptly and at its own expense, with due​ regard for seasonal working conditions, permanently remove and relocate its facilities in the​ right-of-way when it is necessary to prevent interference, and not merely for convenience of the​ local government unit, in connection with: (1) a present or future local government use of the​ right-of-way for a public project; (2) the public health or safety; or (3) the safety and convenience​ of travel over the right-of-way.​ Subp. 2.Exception.Notwithstanding subpart 1, a right-of-way user is not required to remove​ or relocate its facilities from a right-of-way that has been vacated in favor of a nongovernmental​ entity unless and until the reasonable costs to do so are first paid to the right-of-way user.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ 7819.3200 RIGHT-OF-WAY VACATION.​ Subpart 1.Reservation of right.If the local government unit vacates a right-of-way that​ contains the facilities of a right-of-way user and the right-of-way vacation does not require the​ relocation of the right-of-way user's facilities, the local government unit shall, except when it would​ not be in the public interest, reserve to and for itself and all right-of-way users having facilities in​ the vacated right-of-way, the right to install, maintain, and operate facilities in the vacated​ right-of-way and to enter upon the right-of-way at any time to reconstruct, inspect, maintain, or​ repair the facilities.​ Subp. 2.Relocation of facilities.If the local government unit vacates a right-of-way that​ contains the facilities of a right-of-way user and the right-of-way vacation requires the relocation​ of the right-of-way user's facilities, payment of the relocation costs must be determined as follows:​ (1) if the vacation proceedings are initiated by the right-of-way user, the right-of-way user must​ pay the relocation costs; (2) if the vacation proceedings are initiated by the local government unit​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 7819.3200​MINNESOTA RULES​9​ for a public project, the right-of-way user must pay the relocation costs unless otherwise agreed to​ by the local government unit and the right-of-way user; or (3) if the vacation proceedings are​ initiated for the purpose of benefiting a person other than the right-of-way user, the benefited person​ must pay the relocation costs.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ 7819.3300 ABANDONED FACILITIES.​ A right-of-way user shall notify the local government unit when facilities are to be abandoned.​ A right-of-way user that has abandoned facilities in a right-of-way shall remove them from that​ right-of-way if required in conjunction with other right-of-way repair, excavation, or construction,​ unless this requirement is waived by the local government unit.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ MAPPING SYSTEMS​ 7819.4000 AUTHORITY; PURPOSE.​ In managing the use of its public rights-of-way, a local government unit may establish, develop,​ and implement a right-of-way mapping system according to this part and part 7819.4100. The​ purpose of a mapping system is to:​ A.allow flexibility in its use by the local government unit as an effective management tool;​ B.enhance public safety and user facility safety;​ C.provide for long-term cost savings;​ D.improve public right-of-way design quality; and​ E.allow for better information collection and cooperative usage among local government​ units, telecommunications companies, and other users of the public right-of-way.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ 7819.4100 REQUIRED MAPPING INFORMATION.​ Subpart 1.Application required.When a local government unit requires a permit for​ excavation in or obstruction of its public right-of-way, a person wishing to undertake a project​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 10​MINNESOTA RULES​7819.3200​ within the public right-of-way shall submit a right-of-way permit application, which may require​ the filing of mapping information pursuant to subpart 2.​ Subp. 2.Information.The local government unit may require as part of its permit application​ the filing of all 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 local government unit;​ (2)coordinates derived from the coordinate system being used by the local government​ unit; or​ (3)any other system agreed upon by the right-of-way user and local government unit;​ B.the type and size of the utility facility;​ C.a description showing aboveground appurtenances;​ D.a legend explaining symbols, characters, abbreviations, scale, and other data shown on​ the map; and​ E.any facilities to be abandoned, if applicable, in conformance with Minnesota Statutes,​ section 216D.04, subdivision 3.​ Subp. 3.Changes and corrections.The application must provide that the applicant agrees to​ submit "as built" drawings, reflecting any changes and variations from the information provided​ under subpart 2, items A to E.​ Subp. 4.Additional construction information.In addition, the right-of-way user shall submit​ to the local government unit at the time the project is completed a completion certificate according​ to part 7819.1300.​ Subp. 5.Manner of conveying permit data.A right-of-way user is not required to provide​ or convey mapping information or data in a format or manner that is different from what is currently​ utilized and maintained by that user. A permit application fee may include the cost to convert the​ data furnished by the right-of-way user to a format currently in use by the local unit of government.​ These data conversion costs, unlike other costs that make up permit fees, may be included in the​ permit fee after the permit application process.​ Subp. 6.Data on existing facilities.At the request of a local government unit, a right-of-way​ user shall provide existing data on its existing facilities within the public right-of-way in the form​ maintained by the user at the time the request was made, if available.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 7819.4100​MINNESOTA RULES​11​ FACILITY INSTALLATION, CONSTRUCTION, LOCATION​ 7819.5000 INSTALLATION OF TELECOMMUNICATIONS FACILITY.​ Subpart 1.Requirements.The following requirements pertain to telecommunications facility​ installation in a public right-of-way.​ A.During plowing or trenching of a facility, a warning tape must be placed at a depth of​ 12 to 18 inches above copper cables with over 200 pairs and above each fiber facility.​ B.A directional bore facility within the limits of a city must be placed in conduit below a​ concrete- or bituminous-paved road surface or in conduit or armored cable in other locations. The​ conduit or armored cable must be of a type determined by the telecommunications right-of-way​ user. The city may waive this provision if the right-of-way user agrees to additional marking of the​ facility. This provision does not apply to residential connections.​ C.A buried telecommunications facility must have a locating wire or conductive shield,​ except for dielectric cables.​ D.Unless the local government unit directs that no location markers be placed, a location​ marker must be placed at least every 1,300 feet, as well as at road crossings and at culverts. For​ areas outside of cities, unless the local government unit directs that no location markers be placed,​ the markers must be placed at least every 1,300 feet or within line of sight whichever is less, as​ well as at road crossings and at culverts.​ E.A buried fiber facility installed within the limits of a city must be placed in conduit of​ a type determined by the telecommunications right-of-way user, unless this requirement is specifically​ waived by the city. A buried fiber facility beyond city limits must be placed by the​ telecommunications right-of-way user, in its discretion, using industry-acceptable standards.​ F.A buried fiber facility, conditions permitting, must be placed at a minimum depth of 36​ inches below the surface and at a maximum depth of 48 inches, unless otherwise altered by the​ local government unit on a case-by-case basis.​ G.In a city, urban town, urban county, or urban service area, conditions permitting, a copper​ facility buried below a concrete- or bituminous-paved road surface must be placed at a minimum​ depth of 36 inches below the road surface and a maximum of 48 inches, unless otherwise altered​ by the local government unit on a case-by-case basis. Any other copper facility in a city, urban​ town, urban county, or urban service area must be placed at a minimum depth of 30 inches below​ the surface and at a maximum depth of 48 inches, unless otherwise altered by the local government​ unit on a case-by-case basis.​ H.A copper facility in a public right-of-way not covered in item G, conditions permitting,​ must be placed at a minimum depth of 30 inches below the surface and at a maximum depth of 48​ inches, unless otherwise altered by the local government unit on a case-by-case basis.​ I.The placing of any telecommunications facility must comply with the National Electric​ Safety Code, as incorporated by reference in Minnesota Statutes, section 326B.35.​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 12​MINNESOTA RULES​7819.5000​ J.For purposes of this part:​ (1)an "urban town" is a town described in Minnesota Statutes, section 368.01,​ subdivision 1 or 1a;​ (2)an "urban county" is Anoka, Carver, Dakota, Hennepin, Ramsey, St. Louis, Scott,​ or Washington county; and​ (3)an "urban service area" is an unincorporated area within two miles of the corporate​ limits of a city, over which a joint planning board is authorized to exercise planning and land use​ control under Minnesota Statutes, section 462.3585.​ Subp. 2.Locating, marking, or exposing facility.If a telecommunications facility owner is​ unable to locate its underground facility as required under Minnesota Statutes, section 216D.04, it​ must expose the facility so that it can be located.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004; L 2007 c 140 art 5 s 32; art 13 s 4​ Published Electronically:November 14, 2003​ 7819.5100 CONSTRUCTION AND LOCATION REQUIREMENTS.​ Subpart 1.Installation requirements for telecommunications facility.The installation of a​ telecommunications facility in the right-of-way must be done in conformance with part 7819.5000.​ Subp. 2.Installation requirements for gas or electric facility.The installation requirements​ for an electric facility must comply with the construction standards established by the National​ Electrical Safety Code as directed by the Minnesota Electrical Act, Minnesota Statutes, sections​ 326.241 to 326.448, or any superseding authority. The installation requirements for a gas facility​ must comply with the construction standards established by Code of Federal Regulations, title 47,​ parts 191, 192, 193, and 199, as directed by Minnesota Statutes, section 299F.57, or any superseding​ legal authority.​ Subp. 3.Location of facility.Placement of a facility in a particular location within the​ right-of-way must take into account the current and anticipated uses of the right-of-way and the​ distinct engineering, construction, operation, and maintenance characteristics of each type of use.​ Subp. 4.Access to nontraveled portion of right-of-way.A local government unit shall not​ unreasonably prohibit the placement of a facility in the nontraveled portion of the right-of-way.​ The traveled portion of the right-of-way includes the shoulder of the road or highway.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 7819.5100​MINNESOTA RULES​13​ 7819.9900 UTILITY TRENCH RESTORATION; PLATES 1 AND 2.​ Subpart 1.Plate 1.​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 14​MINNESOTA RULES​7819.9900​ Subp. 2.Plate 2.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:April 24, 2023​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 7819.9900​MINNESOTA RULES​15​ 7819.9905 UTILITY TRENCH RESTORATION; PLATES 3 AND 4.​ Subpart 1.Plate 3.​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 16​MINNESOTA RULES​7819.9905​ Subp. 2.Plate 4.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:April 24, 2023​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 7819.9905​MINNESOTA RULES​17​ 7819.9910 UTILITY TRENCH RESTORATION; PLATE 5.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 18​MINNESOTA RULES​7819.9910​ 7819.9915 UTILITY TRENCH RESTORATION; PLATE 6.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 7819.9915​MINNESOTA RULES​19​ 7819.9920 UTILITY HOLE RESTORATION; PLATE 7.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 20​MINNESOTA RULES​7819.9920​ 7819.9925 UTILITY HOLE RESTORATION; PLATE 8.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 7819.9925​MINNESOTA RULES​21​ 7819.9930 UTILITY HOLE RESTORATION; PLATE 9.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 22​MINNESOTA RULES​7819.9930​ 7819.9935 UTILITY HOLE RESTORATION; PLATE 10.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 7819.9935​MINNESOTA RULES​23​ 7819.9940 TYPICAL ROAD PLAN; PLATE 11.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 24​MINNESOTA RULES​7819.9940​ 7819.9945 TYPICAL ROAD RESTORATION; PLATE 12.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 7819.9945​MINNESOTA RULES​25​ 7819.9950 TYPICAL ROAD SHOULDER RESTORATION; PLATE 13.​ Statutory Authority: MS s 237.163​ History: 23 SR 2004​ Published Electronically:November 14, 2003​ Official Publication of the State of Minnesota​ Revisor of Statutes​ 26​MINNESOTA RULES​7819.9950​