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16-Focus News-ThurS. Nov. 11, 1999 .J LEGALS I City of Mounds View ORDINANCE NO. 630 ! CITY OF MOUNDS VIEW COUNTY OF RAMSEY STATE OF MINNESOTA AN ORDINANCE TO ENACT A NEW CHAPTER OF THE MOUNDS VIEW CODE OF ORDINANCES TO ADMINISTER AND REGULATE THE PUBLIC RIGHT OF WAY IN THE,PUBLIC INTEREST, AND TO PROVIDE FOR 1:HE ISSUANCE AND REGULATION OF RIGHT-OF~WAY PERMITS THE COUNCIL OF MOUNDS VIEW ORDAINS: SECTION 1. Title 900 of the Mounds View Municipal Code shall be amended by the addition of an entirely new Chapter 910, to read as follows: CHAPTER 910 RIGHT-OF-WAY MANAGEMENT SECTION 910.01. Findings, Purpose and Intent 910.02. Election to Manage the Public Rights-of-Way 910.03. Definitions 910.04. Administration 910.05. Registration and Right-of-Way Occupancy 910.06. Registration Information 910.07. Reporting Obligations 910.08. Permit Requirement 910.09. Permit Applications 910.10. Issuance of Permit; Conditions 910.11. Permit Fees 910.12. Right-of-Way patching and Restoration 910.13. Joint Applications 910.14. Supplementary Applications 910.15. Other Obligations 910.16. Denial of Permit 910.17. Installation Requirements 910.18. Inspection 910.19. Work Done Without a Permit 910.20. Supplementary Notification 910.21. Revocation of Permits 910.22. Mapping Data 910.23. Location of Facilities 910.24. Relocation of Facilities 910.25. Pre-Excavation Facilities Location 910.26. Damage to Other Facilities 910.27. Right-of-Way Vacation 910.28. Indemnification and Liability 910.29. Abandoned and Unusable Facilities 910.30. Appeal 910.31. Reservation of Regulatory and Police Powers 910.32. Severability 910.01: FINDINGS, PURPOSE, AND INTENT: The City hereby enacts this new Chapter' of this Code relating to right-of-way permits and administration and to provide for the health,safety and welfare of its citizens; and to .ensure the integrity of .its streets and ,the appropriate use of the rigl1ts-of-way. This Chapter imposes reason- able regulation on ,tl1e, placement and maintenan~e of facilities and Eltluipment current- ly within its rights.of-wayor to be placed therein" It is. intendeqto complement the regulatory roles of state and federal agencies. . . . . This chapter shall be' interpreted consistently with 1997 Session Law:;;, Chapter 123, substantially c.odifledin Minnesota Statutes, Sections 237.16,237.162,.23,7.163, 237.79, 237.81, and 238.086 (the "Act") and the ather laws governing applicable rights of. the. city and. use'rs,,()fJhe right-of-way,!~c:h!!pter,Ilb..a1l"al5.Q.J~..e...~." . '''CODSI~Ml\'1i'le'Stmt'RtJte's' Part78t9'.OUfiU -1lft'rf.9~ posslnle. To the extent. any provision of this chapter cannot be interpreted consistently with the Minnesota Rules, that interpretation most consistent with the Acl and other applicable statutory and case law is. intended. 910.02: ELECTION TO MANAGE THE PUBLIC RIGHT-OF-WAY: In accordance with the authority granted to the city under state and federal statutory, aDministrative and common law, the city hereby elects pursuant to this chapter to manage rights-of- ways wlthll, the jurisdiction. 910.03: DEFINITIONS: The following definitions apply in this Chapter of this Code. References' hereafter to "sections" are unless otherwise specified references to sec- tions In this Chapter. De.1iried terms remain defined terms whether or not ~apitalized. "Abandoned facility" means a facility no longer in service or physically disconnected from a portion of the operating facility, or from any other facility, ttlat is in use or still carries service. A facility is not abandoned unless declared s.o by the right-of-way user. "Applicant" means any Person requesting permission to Excavate or obstruct a Right-of-Way. '., '.' .... . "City" means the City of Mounds View, Minnesota. For purposes of sectIon 910.27, City means its elected officials, officers, employees and agents. "Commission" means the Minnesota Public Utilities Commission. . "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 under- ground 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 2160.04. subdivision 3, over a continuous length in excess 01500 feet. ." ' "Construction Performance Bond" means any of the following f.orms of security pro- vided at permittee's opiion: _ A Individual project bond; B Cash deposit; , C Security of a form listed or approved under Minn. Stat. !i 1.5.73 subd'. 3; o Letter .of Credit, in a form acceptable to the LGU f Self-insurance, in a form acceptable to the LGU ' F A blanket bond for projects within the city, .or other form of construction bond, for a time specified and in a form acceptable to the city. "Degradation" means a decrease in the useful life of th~ Right-of:Way caused by excavation in or disturbance of the Right-of-Way, resulting In the need to reconstruct such Right-of-Way earlier than would be required If the excavation .or disturbance did not occur. "Degradation Cost" subject to Minnesota Rules 7819.1100 means the cost to achieve a level of restoration as determined by the City at the time the permit is Issued, not to exceed the maximum Restoration shown in plates 1 to 13, set forth..in Minnesota Rules parts 7819.9900 to 7819.99!;j0. "Degradaiion 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. "Department" means the department of public works of the city. "Department Inspector" means any' person authorized by the director to carry out inspections related to the provisions of this chapter. "Director" means the director of the department of .public works of the city, or. her or his designee. "Delay Penalty" is the penalty imposed as a result of unreasonable delays. in right- of-way excavation, obstruction, patching, or restoration as requested by permit. "Emergency" means a condition t~at (1) po~s a danl;!er to life or health, or <?f. ~ sil;!- nificant loss of property; or (2) reqUires Immediate repair or replacement of faCIlities In order to restore service to a customer. "Equipment" means any tangible asset used to install, repair, or maintain facilities in ,any right-of-way. "Excavate" means to dig into or in any way remove or physically disturb or pene- trate any part of a right-of-way., . '"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. "Excavation Permit Fee" means money paid.to the city by an applicant to cover the costs as provided In Section 910.11. "Facility or FacHitles" means any tangible asset in the right-of-way required to pro- vide utility service. . , . . . "Five"year prajectplan" shows projects adopted by the local government unit for construction within the nexUive years. . . "lilgh density corridor" means a designated portion of the public right-of-way within which telecommunications right-of-way users having mUltiple and competing facili- ties may be required to build and install facilities in a common conduit system or oth- er common structure. "Hole" means an excavation in the pavement, with the excavation having a length less than the width of the pavement. "Local government unit" means the city. ' "Local Representative" means a local person or persans, or designee of such per- son 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. "Management Costs" means the actual costs the City Incurs in managing its rights- of-way, inclUding such costs, if incurred.. ~s th~se associated ~ith re\listering Applicants; issuing, processinQ.; and yenfYlng. ng~t.-of-way pe~mlt appIlC~tIonS; inspecting job sites and restoration projects; malntaln!n~, supporting" protec~lng,. or moving user facilities during right-of-way worlt; determining the adequacy of nght-of- way restoration; restoring work inadequately. pe~ormed'after pro~idlng notice and the opportunity to correct the work; and revokln!J rI\lht-of:waypermlts. Management costs do not include payment by a telecommUnications nght-of-way user for the use of the right-of-way, the fees and cost of titigation relating to the int~rpretation of Minnesota Session Laws 1997, Chapter 123; Minnesota Statutes, Sections 237.162 or 237.163 or any ordinance enacted under those sections, or the city fees and costs related to appeals taken pursuant to Section 910.29 of this chapter. "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. "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 the dura- tion specified therein. . "Obstruction Permit Fee" means money paid -to the city by a permittee to cover the costs as provided in Section 910.11. . '-. "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 excavati~n in all dir~ctions: A ~atch is con.sidered full restoration only when the pavement IS included In the clty_s five-year project plan. "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, aggre- gate, or gravel. "Permit" has the meaning given "right-of-way permit" in Minnesota Statutes, Section 237.162. 'Permittee" means any pers.on to whom a permit to excavate or obstruct a right-of- way has been granted' by the city under this,chapter. . "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. "Probation" means the status of a person that has not complied with the conditions of this Chapter. "Probationary Period" means one year from the date that a person has been noti- fied in writing that they have been put on probation. "Public Right-of-Way" means the area on, below, or above a public roadway, high- way, street, cartway, bicycle lane and pUblic sidewalk in which the city has an inter- est, including other dedicated rights-of-way for travel purposes and utility easeme~ts of the city. A right-of-way does not include the airwaves above.a right-of-way With regard to cellular or other non-wire telecommunications or broadcas~ servic~. "Registrant" means any person who (1) has or seeks .to have Its eqUipment or faci/iti~s 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 or ~quipment in the ril;!ht-of-way. "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 conditlo'n and life expectancy that existed before excavatl.on. "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 of PUC rules. "Right-of-Way Permit" means either the excavation permit or the obstruction per- mit, or both, depending on the context, required by this chapter: "Right-of-way user" means (1) a telecommunications right-of-way user as defined by Minnesota Statutes, Section 237.162, subdivisian 4; or (2) a person owning or controlling aJacillty. in the. right-of-waY that. is used .or intended to be'used for provld- "~I\.t1ll1g bE'iAislIo;"lilul I.! I.e.! a R!l"ftlAller'iaWf'treAf!IIori&ei'OPth1fi,..."...~-tc-tJse"the" public right-of-way. . . "Service or Utility Service" includes' (1) those services provided by a public utility as defined in Minn. Stat. !i 216B.02, subds, 4 ,and 6; (2) services of a telecommUni- cations right-of-way user, including transporting of voice or data Information; (3) ser- vices of a cable communications systems as defined In Minnesota Statutes, Chapter 238; (4) natural gas or electric -energy or .telecommlinlcatlons services provided by the city; (5) services provided by a cooperativeelectrlc association organized under Minnesota Statutes, Chapter 308A; and (6) water, sewer, steam, cooling or heating services. . "Supplementary Appjication" means an application made to excavate or obstruct more of the right-of-way than allowed in, or to extend, a permit that had already been issued. "Temporary surface" means the compaction of subbase and aggregate base and replaCement, in kind, of the existing pavement only to. the edges of t~e excav~tlon. IUs temporary in nature except when the replacement IS of pavement Included In the local government unit's two-year plan, In which case it is considered full restoration. "Trench" means an excavation in the pavement, with the excavation having a length equal to or greater than the width of the pavement. . "Telecommunication Rights-of-Way User" mea.ns 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 oris intended to be used, for traflsporting,telecommunication or other voice or data information. 'For purposes of this chapter,a cable communication sys- tem defined and regulated under Minnesota Statutes, Chapter 238, and telecommu- nication activities related to providing natural gas or electric energy services whether provided by a public utility as defined in Minnesota Statutes, Section 2166.02, a municipality, a municipal gas or power agency organized under Minnesota Statutes, Chapters 453 and 453A, .or a cooperative electric association organized under Minnesota Statutes, Chapter 308A, are not telecommunications right-of-way users for purposes of this Chapter. . . "Two year project plan" shows projects adopted by the .Iocal government unit for construction within the next two years. .'. ~ 910.04: ADMINISTRATION: The Director is the principal. City official responsible for the administration of the Rights-of-Way, Right-of-Way P~rmits, and theordi- nances related thereto. The Director may delegate any. or all of the duties hereun- der. -910.05: REGISTRATION AND RIGHT-OF-WAY OCCUPANCY: Subd. 1. Registration: Each Person who occupies, uses,. or seeks to occupy or use, the Right-of-Way or place any Equlpm~nt or FaCilities In ~r ~!". the Right-of-Way, including Persons with Installation and malntenanCEl. responsibilities by lease, sub- , lease or assignment, must register wi.th the Director. Registration will consist of pro- viding application information and paying a registration fee. . . Subd. 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 Director. Subd. 3. Exceptions: Nothing herein shall be. construed to repeal or amend the provisions of a City ordinance permitting Persons to plant or.maintain boulevard plantings or gardens In the area of the Right-of-Way between their property and the street curb. Persons planting or maintaining boulevardplantlngs or gardens shal.1 not be deemed to use or occupy the Right~of-Way, and shall not be required to obtain any permits or satisfy any other requi.rements for planting or maint~ining su~h boulevard plantings or gardens under thiS Chapter. However, nothmg herein relieves a Person from complying with the provisions of thE! Minnesota Statutes Chapter 216D, One Call Excavation Notice System. 910.06: REGISTRATION INFORMATION: , Subd. 1. Information Required: The Information provided to the Director at the time of registration shall include, but not be limited to: (a) Each Registrant's name, One Call Ex~avatlo.n Notice. System registration ~er- tificate number, address and e-mail address If applicable, and telephone and faCSim- ile numbers. . (b) The name, address and e-mail address, if applicable, and telephone and fac- simile 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) Verifying that an insurance policy has been Issued ta.the Registrant by an Insurance company authorized to do business In the State .of Minnesota, or a form of , self insurance acceptable ta the Director; (2) . Verifying that the Registrant Is insured against claims for Personal Injury, including death, as well as claims for property damage arisll)gout of the (i) use' and occupancy of the Right"of-Way by the Registrant. its officers, "agents. employees and 1 . ' . Permittees, and (Ii) placement and use of Facilities and Equipment in the Right-of-Way by the Registrant, its officers, agents, employees and Permittees, including, but not limited to, protection against liability arising from completed operations, damage of underground Facilities and collapse of property; (3) Either naming the City as an additional insured as to whom the cov- erages requi'red herein are in force and applicable and for whom defense will be provided as to all such cover- ages or otherwise providing evidence satisfactory to the Director .that the city' is fully covered and will be defended through Registrant's insurance for all actions included in Minnesota Rule subpart 7819.1250; (4) Requir'ing that the Director 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 cover- age, workers compensation and umbrella coverage established by the Director in amounts sufficient to pro- tect the City and the publiC and to car- ry out the purposes and policies of this Chapter. (d) The City may require a copy of the actual insurance policies if neces- sary to ensure the Director that the policy provides adequate third party claim coverage and city indemnity and defense coverage for all actions included in the indemnity required by Minnesota Rule subpart 7819.1250. (e) Such evidence as the Director may require that the person is autho- rized to do business in Minnesota. Subd. 2. Notice of Changes: The Registrant shall keep all of the infor- mation listed above current at all times by pro,viding to the Director informa- tion as to changes within fifteen (15) days following the. date on which the Registrant has knowledge of any change. 910.07: REPORTING OBLIGA" TlONS: Subd. 1. Operations: Each Registrant shall, at the time of regis- tration and by December 1 of each year, file a construction and major maintenance plan for underground Facilities with the Director. Such plan . shall be submitted using a format des- ignated by the Director and shall. con- tain the information determined by'ttle Director to be necessary to facilitate; the coordination and reduction in the' frequency of excavations and Obstructions of Rights-of-Way. "'The plan sh'sll include, but nol be limited to, the following information: (a) The locations. and the estimated beginning and ending dates of all Projects to be commenced during tile' next calendar year (in this seption, a "Next-year Project"); and (b) To the extent known, the tenta- tive locations and estimated beginning and ending dates for all Projects con- templated for the. five years following the next calendar year (in this section, a "Five-year Project"). The term "project" in this section shall include both Next-year Projects and Five-year Projects. By January 1 of each year the Director will have available for inspec- tion in the Director's office a compos- ite list of all Projects of which the Director has been informed of 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 Director and all other Registrants of all such changes in said list. Notwithstanding the foregoing, a . Registrant may at any time join in a Next-year Project of another Registrant listed by the other Registrant. . Subd. 2. Additional Next-year Projects: Notwithstanding the forego- ing, the Director will not deny an appli- cation 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. 910.08: PERMIT REQUIREMENT: Subd. 1. Permit Required; Except as otherwise provided in this Code, no Person may Obstruct or Excavate any Right-of-Way without first having obtained the appropriate Right-of-Way Permit from the Director to do so. . (a) Excavation Permit: An Excavation Permit is required by a Registrant to Excavate that part of the Right-of-Way described in such permit and to hinder free and open passage over the specified portion of the Right- of-Way by placing Facilities described therein, to the extent and for the dura- tion specified therein. (b) Obstruction Permit; An Obstruction Permit is required by a Registrant to hinder free and open passage over the SPecified portion of Right-of-Way by placing Equipment described therein on the Right-of-Way, to the extent and for the duration specified therein. An Obstruction Permit is not required if a Person already possesses a valid Excavation pelJllit for the same project.