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96-1370 ' � � � Council File # ��"�'�3�C7 Pc��1� `Q C�J �l E �2.S � c� r� ` a 1 y ' q � Ordinance # � Green Sheet # 3 �� y � ORDINANCE OF INT PAUL, MI ESOTA � Prese ted By Re rred To Committee Date 1 An ordinance to enact a new Chapter 116 2 of the Saint Paul Legislative Code 3 to administer and regulate the 4 public right-of-way in the public interest. 5 6 THE COUNCIL OF THE CITY OF SAINT PAUL DOES ORDAIN: 7 8 Section 1 9 10 Chapter 124 of the Saint Paul Legislative Code is hereby repealed in its entirety, and 11 is replaced by the following new Chapter 116, to read as follows: 12 13 14 Chapter 116 15 Right-of-Way Administration 16 17 Sec. 116.01. Findings and Purpose. 18 19 General. 20 21 In order to provide for the health, safety and well-being of its citizens, as well as to 22 insure the structural integrity of its streets and the use of the rights-of-way, the City strives to 23 keep its rights-of-way in a state of good repair and free from unnecessary encumbrances. 24 Although the general population bears the financial burden for the upkeep of the rights-of- 25 way, a primary cause for the early and excessive deterioration of its rights-of-way is their 26 frequent excavation by persons whose equipment is located therein. 27 28 Right-of-way obstruction is a source of loss of business to merchants and others whose 29 places of business are located nearby and a cause of frustration for the general population 30 which must avoid these obstructions or change travel or shopping plans because of them. 31 Persons whose equipment is located within the right-of-way are the primary cause of these 32 frequent obstructions. 33 34 The City recognizes that it holds the rights-of-way within its geographical boundaries 35 as an asset in trust for its citizens. The City and other public entities have invested millions of 36 dollars in public funds to build and maintain the right-of-way. It also recognizes that some 37 persons, by placing their equipment in the right-of-way and charging the citizens of the City 38 for goods and services delivered thereby, are using this property held for the public good. 39 Although such services are often necessary or convenient for the citizens, such persons receive 40 revenue and/or profit through their use of public property. 41 ,►� �2/�f l�G �1�- �3r[ C� 1 In response to the foregoing facts, the City hereby enacts new Chapters 116 and 135 2 of the St. Paul Legislative Code relating to right-of-way permits and administration, together 3 with an ordinance making necessary revisions to other Code provisions and an ordinance 4 providing for a telecommunications franchise. These ordinances impose reasonable regulations 5 on the placement and maintenance of equipment currently within its rights-of-way or to be 6 placed therein at some future time. Under these ordinances, persons disturbing and 7 obstructing the rights-of-way will bear a fair share of the financial responsibility for their 8 integrity. Finally, these ordinances provide for recovery of out-of-pocket and projected costs 9 from persons using the public rights-of-way. 10 11 In addition to the foregoing recovery of costs and regulation of use, the Council 12 determines that there is an existing and legitimate state and local public policy, which 13 authorizes the City to require additional payments as reimbursement or rate of return to the 14 public for the use value of the public rights-of-way from those who obtain revenue or profits 15 from such use. This reimbursement is provided for and defined in this ordinance as the "user 16 fee." 17 18 19 User Fee. 20 21 Public Interest and Welfare. The Council of the City of Saint finds that it is in the 22 public interest to provide for the payment of a user fee by all persons which use and occupy 23 the right-of-way for the purpose of operating their businesses. This provides equity by 24 requiring all users of the right-of-way to pay compensation apportioned equally among them 25 all for the value and benefit of using such right-of-way. To insure such equal treatment, these 26 ordinances exempt franchise holders which pay franchise fees to the City from the payment of 27 a user fee. 28 29 Legislative Power. In these situations, the Council of the City of Saint Paul desires to 30 exercise its lawful police power and common law authority, and all statutory authority which 31 is available to it, including, but not limited to, the powers conferred on it under Section 11.01 32 of its Charter and under Minn. Stat. §§ 216B.36, 222.37, 237.16 and 300.03. The Council 33 finds and determines that the public interest will be best protected by adopting these 34 ordinances which require the payment of such user fee as authorized by law, and which 35 confer the right to occupy the right-of-way in cases in which the occupant of the right-of-way 36 does not have a franchise. 37 38 Computation of User fee. Reserved. 39 40 41 42 Not a Rate. The Council finds and determines that the user fee authorized by this 43 ordinance is not and is not intended to be a rate as that term is defined in Minn. Stat. § 44 216B.02, subd. 5. Such user fee is not a fee for a service that is provided to the customer of a 45 person using the right-of-way, but is rather a fee paid for the right of that person to operate 46 in the public right-of-way, and to maintain the equipment of a utility in the right-of-way in 47 Saint Paul. 48 49 The findings in the Purpose Statement in Chapter 135 are hereby incorporated in and 50 adopted as part of this chapter. 51 2 ��j ��f��lG 1 Sec. 116.02. Definitions q �-� �r[(� 2 3 The following definitions apply in both Chapters 116 and 135 of the Saint Paul 4 Legislative Code, (hereafter, "Chapters 116 and 135" or "these ordinances"). References 5 hereafter to "sections" are unless otherwise specified references to sections in the Saint Paul 6 Legislative Code. Defined terms remain defined terms whether or not capitalized. 7 8 (a) "Applicant" means any person requesting permission to excavate or obstruct a 9 right-of-way. 10 11 (b) "City" means the City of St. Paul, Minnesota. 12 13 (c) "City Cost" means the direct and indirect costs borne by the City to process and 14 check applications, issue permits, inspect job sites, create and update mapping systems, and 15 perform all of the other tasks required by Chapters 116 and 135. 16 17 (d) "Department" means the Department of Public Works of the City. 18 19 (e) "Department Inspector" means any person authorized by the Director to carry out 20 inspections related to the provisions of Chapters 116 and 135. 21 22 (� "Director" means the Director of the Department of Public Works of the City, or 23 her or his designee. 24 25 (g) "Disruptive Cost" is the cost of the loss of business suffered by merchants and the 26 adverse impact on City citizens and others who are required to alter travel routes and times 27 resulting from right-of-way obstructions. 28 29 (g-1) "Downtown business district" means that portion of the City of Saint Paul lying 30 within and bounded by the following streets: Beginning at the intersection of Shepard Road 31 with Chestnut Street, Chestnut Street to Interstate Freeway 35E, Interstate Freeway 35E to 32 Interstate Freeway 94, Interstate Freeway 94 to Lafayette Bridge, Lafayette Bridge to where 33 the bridge crosses over Warner Road, Warner Road to Shepard Road, Shepard Road to 34 Chestnut Street. 35 36 (h) "Emergency" means a condition that (a) poses a clear and immediate danger to life 37 or health, or of a significant loss of property; or (b) requires immediate repair or replacement 38 in order to restore service to a customer. 39 40 (i) "Equipment" means any tangible thing located in any right-of-way; but shall not 41 include boulevard plantings or gardens planted or maintained in the right-of-way between a 42 person's property and the street curb. 43 44 (j) "Excavate" means to dig into or in any way remove or physically disturb or 45 penetrate any part of a right-of-way. 46 47 (k) "Excavation permit" means the permit which, pursuant to Chapters 116 and 135, 48 must be obtained before a person may excavate a right-of-way. 49 50 (1) "Excavation Permit Fee" means money paid to the City by an applicant to cover the 51 costs as provided in Section 135.06. 3 �� /��G � � `CC--I�'l� 1 (m) "In," when used in conjunction with "right-of-way," means over, above, in, within, 2 on or under a right-of-way. 3 4 (n) "Local Representative" means the person or persons, or designee of such person or 5 persons, authorized by a registrant to accept service and to make decisions for that registrant 6 regarding all matters within the scope of Chapters 116 and 135. 7 8 (o) "Obstruct" means to place any tangible object in a right-of-way so as to hinder free 9 and open passage over that or any part of the right-of-way. 10 11 (p) "Obstruction Permit" means the permit which, pursuant to Chapters 116 and 135, 12 must be obtained before a person may obstruct a right-of-way. 13 14 (q) "Obstruction Permit Fee" means money paid to the City by a registrant to cover the 15 costs as provided in Section 135.06. 16 17 (r) "Permittee" means any person to whom a permit to excavate or obstruct a right-of- 18 way has been granted by the City under Chapter 116 or 135. 19 20 (s) "Person" means any natural or corporate person, business association or other 21 business entity including, but not limited to, a partnership, a sole proprietorship, a political 22 subdivision, a public or private agency of any kind, a utility, a successor or assign of any of 23 the foregoing, or any other legal entity which has or seeks to have equipment located in any 24 right-of-way. 25 26 (t) "Registrant" means any person who (1) has or seeks to have its equipment located 27 in any right-of-way, or (2) in any way occupies or uses, or seeks to occupy or use, the right- 28 of-way or any equipment located in the right-of-way. 29 30 (u) "Registration Fee" means money paid to the City by a registrant. 31 32 (v) "Removal Bond" means a bond posted to ensure the availability of sufficient funds 33 to remove a registrant's equipment upon its possible abandonment or disuse, or to discontinue 34 a registrant's use or occupation of the right-of-way. 35 36 (w) "Restoration" means the process by which an excavated or obstructed right-of-way 37 is returned to a condition which approximates as closely as possible its condition before the 3 8 excavation. 39 40 (x) "Restoration Fee" means an amount of money paid to the City by a permittee to 41 cover the cost of restoration. 42 43 (y) "Right" is the legal entitlement of a person to use the right-of-way in the City of 44 Saint Paul for the purposes of carrying on its business. A right for the purpose of these 45 chapters does not include, and does not refer to, a license, permit or franchise. Right shall not 46 include the use of the right-of-way for purposes not in furtherance of the furnishing of Utility 47 Services, unless the person pays the user fee for such non-utility service use. 48 49 (z) "Right-of-way" means the surface and space above and below any real property in 50 which the City has an interest in law or equity, whether held in fee, or other estate or interest, 51 or as a trustee for the public, including, but not limited to any public street, boulevard, road, 4 �j� /2��6 1 highway, freeway, lane, alley, court, sidewalk, parkway, river, tunnel, viaduct, bridge, park, 2 skyway, skyway bridge or any other place, area, or real property owned by or under the q(o-�� 3 control of the City, or in which the City has such an interest. 4 5 (aa) "Right-of-way permit" means either the excavation permit or the obstruction 6 permit, or both, depending on the context, required by Chapters 116 and 13 5. 7 8 (bb) "Service" or "Utility Service" includes (i) those services provided by a public 9 utility as defined in Minn. Stat. § 216B.02, subds. 4 and 6 (1994), (ii) telegraph, telephone, 10 fiber-optic communications, pipeline, community antenna television, cable communications, 11 fire and alarm communications, water, electricity, light, heat, cooling energy, or power 12 services, (iii) the services provided by a corporation organized for the purposes set forth in 13 Minn. Stat. § 300.03 (1994); and (iv) the services provided by a district heating or cooling 14 system. 15 16 (cc) "Supplementary Application" means an application made to excavate or obstruct 17 more of the right-of-way than allowed in, or to extend, a permit that had already been issued. 18 19 (dd) "Unusable equipment" means equipment located in the right-of-way which has 20 remained unused for one year and for which the registrant is unable to provide proof that it 21 has either a plan to begin using it within the next twelve months or a potential purchaser or 22 user of the equipment. 23 24 (ee) "User fee" is the sum of money, payable to the City, by a person using or 25 occupying the right-of-way, in an amount equal to One Dollar ($1.00) per year; provided, 26 however, that the City may at its option provide, at any time by ordinance or by amendment 27 thereto, for a greater or different fee applicable to all such persons in an amount and by a 28 method of determination as may be further provided in such ordinance or amendment thereto. 29 30 31 Sec. 116.03. Administration. 32 33 The Director of the Department of Public Works shall be the principal City official 34 responsible for the administration of the rights-of-way, right-of-way permits, and the 35 ordinances related thereto. The Director may delegate any or all of the duties hereunder. 36 37 38 Sec. 116.04. Utility Coordination Committee. 39 40 There is hereby created a utility coordination committee. This committee shall be 41 voluntary and advisory to the Director. It shall be composed of any registrants that wish to 42 assist the City in obtaining information and by making recommendations regarding ways to 43 take greater responsibility for the right-of-way, and to improve the process of performing 44 construction work therein. Notice of the meetings of such committee shall be given by the 45 Director to any registrant making a written request to the Director to be so notified. 46 47 48 Sec. 116.05. Registration and Right-of-Way Occupancy. 49 50 Each person who occupies, uses, or seeks to occupy or use, the right-of-way or any 51 equipment located in the right-of-way, or who has, or seeks to have, equipment located in any 5 ��8 ��`��QG 1 right-of-way shall register with the Department. Registration will consist of providing ��° 1�� 2 application information to and as required by the Director, making a written commitment to 3 pay a user fee, and posting a removal bond. 4 5 The user fee shall be an amount as defined and provided in Section 116.02. 6 7 The removal bond required in this Section, in Section 116.17 and Section 135.04(d) 8 shall be in an amount sufficient to cover twenty-five percent (25%) of the cost of removing 9 the registrant's equipment located under the surface of the right-of-way and restoring the 10 right-of-way thereafter, or in such lesser amount as may be determined by the Director, taking 11 into account the amount of equipment in the right-of-way, the location and method of 12 installation of the equipment, the conflict or interference of such equipment with the 13 equipment of other persons, and the purposes and policies of these ordinances. 14 15 No person may construct, install, repair, remove, relocate, or perform any other work 16 on, or use any equipment or any part thereof located in any right-of-way without first being 17 registered with the Department. 18 19 Notwithstanding any other provision of law, a registrant which has a franchise from 20 the City under Chapter 16 of the City Charter, which franchise provides for the payment of 21 franchise fees thereunder, shall not be required to pay a user fee. 22 23 Nothing herein or in Chapter 135 shall be construed to repeal or amend the provisions 24 of a city ordinance permitting persons to plant or maintain boulevard plantings or gardens or 25 in the area of right-of-way between their property and the street curb. Persons planting or 26 maintaining boulevard plantings or gardens shall not be deemed to use or occupy the right-of- 27 way, and shall not be required to obtain any permits or satisfy any other requirements for 28 planting or maintaining such boulevard plantings or gardens under this Chapter or Chapter 29 135. 30 31 32 Sec. 116.06. Grant of Right; Payment of user fee. 33 34 Any person required to register under Section 116.05, which furnishes utility services 35 or which occupies, uses, or places its equipment in the right-of-way, is hereby granted a right 36 to do so if and only so long as it (1) timely pays the user fee as provided herein, and (2) 37 complies with all other requirements of law. 38 39 Such fee shall be paid to the City in substantially equal monthly installments, subject 40 to adjustment and correction at the conclusion of the calendar year. Such fee shall be paid for 41 all and any part of a calendar year, prorated on a daily basis, during any time period in which 42 the said person (a) uses or occupies the right-of-way to furnish utility service, or (b) places, 43 maintains or uses its wires, mains, pipes, or any other facilities or equipment in the right-of- 44 way. 45 46 This section does not apply to a person which uses and occupies the right-of-way for 47 the purpose of operating its business when there is a franchise agreement between that person 48 and the City of Saint Paul which provides for the payment of franchise fees. 49 50 The grant of such right is expressly conditioned on, and is subject to, continuing 51 compliance with all provisions of law, including this chapter and Chapter 135. 6 �� 1�G 1 a�L_�� 0 2 Sec. 116.07. Registration Information. 3 4 The information provided to the Department at the time of registration shall include, 5 but not be limited to: 6 7 (a) Each registrant's name, Gopher One-Call registration certificate number, address 8 and e-mail address if applicable, and telephone and facsimile numbers. 9 10 (b) The name, address and e-mail address, if applicable, and telephone and facsimile 11 numbers of a local representative. The local representative shall be available at all 12 times. Current information regarding how to contact the local representative in an 13 emergency shall be provided at the time of registration. 14 15 (c) A certificate of insurance: 16 17 (1) Verifying that an insurance policy has been issued to the registrant by an 18 insurance company licensed to do business in the State of Minnesota, 19 20 (2) Verifying that the registrant is insured against claims for personal injury, 21 including death, as well as claims for property damage arising out of the (i) use 22 and occupancy of the right-of-way by the registrant, its officers, agents, 23 employees and permittees, and (ii) placement and use of equipment in the right- 24 of-way by the registrant, its officers, agents, employees and permittees, 25 including, but not limited to, protection against liability arising from completed 26 operations, damage of underground equipment and collapse of property, 27 28 (3) Naming the City as an additional insured as to whom the coverages 29 required herein are in force and applicable and for whom defense will be 30 provided as to all such coverages, 31 32 (4) Requiring that the Director be notified thirty (30) days in advance of 33 cancellation of the policy, and 34 35 (5) Indicating comprehensive liability coverage, automobile liability coverage 36 and umbrella coverage in amounts established by the director of the office of 37 risk and employee benefit management in amounts sufficient to protect the City 38 and carry out the purposes and policies of Chapters 116 and 135. 39 40 (d) If the person is a corporation, a copy of the certificate required to be filed under 41 Minn. Stat. § 300.06 as recorded and certified to by the secretary of state. 42 43 (e) A copy of the person's certificate of authority from the Minnesota public utilities 44 commission, where the person is lawfully required to have such certificate from said 45 commission. 46 47 (� A statement whether the person has a franchise from and with the City and a copy 48 of the acceptance of such franchise which has been filed with the City Clerk. 49 7 � /,��Q�i 1 The registrant shall keep all of the information listed above current at all times by q (�-�3'�]0 2 providing to the Department information of changes within fifteen (15) days following the 3 date on which the registrant has knowledge of any change. 4 5 6 Sec. 116.08. Reporting Obligations. 7 8 (a) Operations. Each registrant shall, at the time of registration and by December 1 of 9 each year, file a construction and major maintenance plan with the Department. Such plan 10 shall be submitted using a format designated by the Director and shall contain the information 11 determined by the Director to be necessary to facilitate the coordination and reduction in the 12 frequency of excavations and obstructions of rights-of-way. 13 14 The plan shall include, but not be limited to, the following information: 15 16 (1) the specific locations and the beginning and ending dates of all Projects to be 17 commenced during the next calendar year (in this section, a "Next-year 18 Project"); and 19 20 (2) the tentative locations and beginning and ending dates for all Projects 21 contemplated for the five years following the next calendar year (in this 22 section, a "Five-year Project"). 23 24 The term "project" in this section shall include both Next-year Projects and Five-year Projects. 25 26 By January 1 of each year the Department will have available for inspection in its 27 offices a composite list of all Projects of which it has been informed in the annual plans. All 28 registrants are responsible for keeping themselves apprised of the current status of this list. 29 30 Thereafter, by February 1, each registrant may change any Project in its list of Next- 31 Year Projects, and must notify the Director and all other registrants of a11 such changes in 32 said list. Notwithstanding the foregoing, a registrant may at any time join in a Next-year 33 Project of another registrant that was listed by the other registrant. 34 35 (b) Fee Information. A person having a right under Section 116.06 is required to 36 maintain such records of the location of its equipment in the rights-of-way within the City, 37 the payment of any user fee hereunder, and such other records as the Director may reasonably 38 require, as will permit and enable the proper and efficient enforcement of the provisions of 39 this chapter. Such person will annually make such reports, in such form as the Director may 40 reasonably require. Such person shall annually cause an audit to be performed, at its sole 41 expense, to verify that the records and reports are accurate and reflect that the person has paid 42 the proper amount of user.fees as required herein. 43 44 (c) Additional,Next year Projects. Notwithstanding the foregoing, the Director may, for 45 good cause shown, allow a registrant to submit additional Next-year Projects. Good cause 46 includes, but is not limited to, the criteria set forth in Section 135.11(c) concerning the 47 discretionary issuance of permits. 48 49 50 s �s ��`��r 1 Sec. 116.09. Mapping Data. G��_ ��!-�� 2 3 Each registrant shall provide to the Department information indicating the horizontal 4 and vertical location, relative to the boundaries of the right-of-way, of all equipment which it 5 owns or over which it has control and which is located in any right-of-way ("Mapping Data"). 6 Mapping Data shall be provided with the specificity and in the format requested by the 7 Department for inclusion in the mapping system used by the Department. 8 9 Within six months after the acquisition, installation, or construction of additional 10 equipment or any relocation, abandonment, or disuse of existing equipment, each registrant 11 shall supplement the Mapping Data required herein. 12 13 At the request of any registrant, any information requested by the Department which 14 qualifies as a "trade-secret" under Chapter 94 of the St. Paul Administrative Code or Minn. 15 Stat. § 13.37(b) shall be treated as trade secret information as detailed therein. 16 17 Each registrant shall, within six (6) months after the date of passage of this ordinance, 18 submit a plan to the Director specifying in detail the steps it will take to comply with the 19 requirements of this Section. Said plan shall provide for the submission of all Mapping Data 20 (a) for the Downtown Business District within two (2) years after the date of passage of this 21 ordinance, and (b) for the remainder of the City as early as may be reasonable and practical, 22 but not later than five (5) years after the date of passage of this ordinance. 23 24 Notwithstanding the foregoing, Mapping Data shall be submitted by all registrants for 25 all equipment which is to be installed or constructed after the date of passage of this 26 ordinance at the time any permits are sought under these ordinances. 27 28 After six (6) months after the passage of this ordinance, a new registrant, or a 29 registrant which has not submitted a plan as required above, shall submit complete and 30 accurate Mapping Data for all its equipment at the time any permits are sought under these 31 ordinances. 32 33 34 Sec. 116.10. Location of Equipment. 35 36 (a) Undergrounding. Unless existing above-ground equipment is repaired or replaced, 37 new construction and the installation of new equipment shall be done underground or 38 contained within buildings or other structures in conformity with applicable codes. 39 40 (b) Corridors. The Director shall assign specific corridors within the right-of-way, or 41 any particular segment thereof as may be necessary, for each Type of equipment that is or, 42 pursuant to current technology, the Director expects will someday be located within the right- 43 of-way. All excavation, obstruction, or other permits issued by the Department involving the 44 installation or replacement of equipment shall designate the proper corridor for the equipment 45 at issue. 46 47 Any registrant whose equipment is located in the right-of-way in a position at variance 48 with the corridors established by the Director shall, no later than at the time of the next 49 reconstruction or excavation of the area where its equipment is located, move that equipment 50 to its assigned position within the right-of-way, unless this requirement is waived by the 9 � ��1�� 9C.- 1��t � 1 Director for good cause shown, upon consideration of such factors as the remaining economic 2 life of the facilities, public safety, customer service needs and hardship to the registrant. 3 4 (c) Nuisance. One year after the passage of this ordinance, any equipment found in a 5 right-of-way that has not been registered shall be deemed to be a nuisance. The City may 6 exercise any remedies or rights it has at law or in equity, including, but not limited to, abating 7 the nuisance pursuant to Section 45.11 of the Legislative Code or taking possession of the 8 equipment and restoring the right-of-way to a useable condition. 9 10 (d) Limitation of Space. The Director shall have the power to prohibit or limit the 11 placement of new or additional equipment within the right-of-way if there is insufficient space 12 to accommodate all of the requests of registrants or persons to occupy and use the right-of- 13 way. In making such decisions, the Director shall strive to the extent possible to accommodate 14 all existing and potential users of the right-of-way, but shall be guided primarily by 15 considerations of the public interest, the public's needs for the particular utility service, the 16 condition of the right-of-way, the time of year with respect to essential utilities, the protection 17 of existing equipment in the right-of-way, and future City plans for public improvements and 18 development projects which have been determined to be in the public interest. 19 20 21 Sec. 116.11. Relocation of Equipment. 22 23 When working in the rights-of-way, permittees shall not interfere with the safety and 24 convenience of ordinary travel along and over the rights-of-way nor interfere with other uses 25 to which the rights-of-way may be put by the City of St. Paul. 26 27 The person must promptly and at its own expense, with due regard for seasonal 28 working conditions, permanently remove and relocate its equipment and facilities in the right- 29 of-way whenever the director requests such removal and relocation, and shall restore the right- 30 of-way to the same condition it was in prior to said removal or relocation. The director may 31 make such request in order to prevent interference by the Company's equipment or facilities 32 with (i) a present or future City use of the right-of-way, (ii) a public improvement undertaken 33 by the City, (iii) an economic development project in which the City has an interest or 34 investment, or when the public health, safety and welfare requires it, or when necessary to 35 prevent interference with the safety and convenience of ordinary travel over the right-of-way. 36 37 Notwithstanding the foregoing, a person shall not have to remove or relocate its 38 equipment from any right-of-way which has been vacated in favor of a non-governmental 39 entity unless and until the reasonable costs thereof are first paid to the person therefor. 40 41 42 Sec. 116.12. Pre-Excavation Equipment Location. 43 44 In addition to complying with the requirements of Minn. Stat. §§ 216D.01-.09 ("One 45 Call Excavation Notice System") before the start date of any right-of-way excavation, each 46 registrant who has equipment located in the area to be excavated shall mark the horizontal and 47 approximate vertical placement of all said equipment. 48 49 Any registrant whose equipment is less that twenty (20) inches below a concrete or 50 asphalt surface shall notify and work closely with the excavation contractor in an effort to 51 establish the exact location of its equipment and the best procedure for excavation. io � ��G 1 2 Sec. 116.13. Damage to Other Equipment. � �° -��O 3 4 When the Department performs work in the right-of-way on a public project and finds 5 it necessary to maintain, support, or move a registrant's equipment in order to protect it, the 6 costs associated therewith will be billed to that registrant and must be paid within thirty (30) 7 days from the date of billing. 8 9 Each registrant sha11 be responsible for the cost of repairing any equipment in the 10 right-of-way which it or its equipment damages. Each registrant shall be responsible for the 11 cost of repairing any damage to the equipment of another registrant caused during the City's 12 response to an emergency occasioned by that registrant's equipment. 13 14 15 Sec. 116.14. Right-of-Way Vacation. 16 17 If the City vacates a right-of-way which contains the equipment of a registrant, and if 18 the vacation does not require the relocation of registrant or permittee equipment, the City shall 19 reserve, pursuant to Section 130.05, to and for itself and all registrants having equipment in 20 the vacated right-of-way, the right to install, maintain and operate any equipment in the 21 vacated right-of-way and to enter upon such right-of-way at any time for the purpose of 22 reconstructing, inspecting, maintaining or repairing the same. 23 24 If the vacation requires the relocation of registrant or permittee equipment; and (a) if 25 the vacation proceedings are initiated by the registrant or permittee, the registrant or permittee 26 must pay the relocation costs; or (b) if the vacation proceedings are initiated by the city, the 27 registrant or permittee must pay the relocation costs unless otherwise agreed to by the city and 28 the registrant or permittee; or (c) if the vacation proceedings are initiated by a person or 29 persons other than the registrant or permittee, such other person or persons must pay the 30 relocation costs. 31 32 33 Sec. 116.15. Indemnification and Liability. 34 35 By reason of the acceptance of a registration or the grant of a right-of-way permit, the 36 City does not assume any liability (a) for injuries to persons, damage to property, or loss of 37 service claims by parties other than the registrant or the City, or (b) for claims or penalties of 38 any sort resulting from the installation, presence, maintenance, or operation of equipment by 39 registrants or activities of registrants. 40 41 By registering with the Department a registrant agrees, or by accepting a permit under 42 Chapters 116 and 135 a permittee is required, to defend, indemnify, and hold the City whole 43 and harmless from all costs, liabilities, and claims for damages of any kind arising out of the 44 construction, presence, installation, maintenance, repair or operation of its equipment, or out 45 of any activity undertaken in or near a right-of-way, whether or not any act or omission 46 complained of is authorized, allowed, or prohibited by a right-of-way permit. It further 47 agrees that it will not bring, nor cause to be brought, any action, suit or other proceeding 48 claiming damages, or seeking any other relief against the City for any claim nor for any 49 award arising out of the presence, installation, maintenance or operation of its equipment, or 50 any activity undertaken in or near a right-of-way, whether or not the act or omission 51 complained of is authorized, allowed or prohibited by a right-of-way permit. The foregoing i 1 ��/�4��lG � q(.-1��10 1 does not indemnify the City for its own negligence except for claims arising out of or alleging 2 the City's negligence where such negligence arises out of or is primarily related to the 3 presence, installation, construction, operation, maintenance or repair of said equipment by the 4 registrant or on the registrant's behalf, including, but not limited to, the issuance of permits 5 and inspection of plans or work. This section is not, as to third parties, a waiver of any 6 defense or immunity otherwise available to the registrant or to the City; and the registrant, in 7 defending any action on behalf of the City, shall be entitled to assert in any action every 8 defense or immunity that the City could assert in its own behalf. 9 10 11 Sec. 116.16. Future Uses. 12 13 In placing any equipment, or allowing it to be placed, in the right-of-way the City is 14 not liable for any damages caused thereby to any registrant's equipment which is already in 15 place. No registrant is entitled to rely on the provisions of Chapter 116 or 135, and no 16 special duty is created as to any registrant. Chapters 116 and 135 are enacted to protect the 17 general health, welfare and safety of the public at large. 18 19 20 Sec. 116.17. Abandoned and Unusable Equipment. 21 22 A registrant who has determined to discontinue its operations in the City must either: 23 24 (a) Provide information satisfactory to the director that the registrant's obligations for 25 its equipment in the right-of-way under this chapter and Chapter 135 have been 26 lawfully assumed by another registrant; or 27 28 (b) Submit to the director a proposal and instruments for transferring ownership of its 29 equipment to the City. If a registrant proceeds under this clause, the City may, at its 30 option: 31 32 (1) purchase the equipment, or 33 34 (2) require the registrant, at its own expense, to remove it, or 35 36 (3) require the registrant to post a bond in an amount as required by Section 37 116.05. 38 39 Equipment of a registrant who fails to comply with the preceding paragraph and 40 which, for two yeaxs, remains unused shall be deemed to be abandoned. Abandoned 41 equipment is deemed to be a nuisance. The City may exercise any remedies or rights it has at 42 law or in equity, including, but not limited to, (i) abating the nuisance pursuant to Section 43 45.11, (ii) taking possession of the equipment and restoring it to a useable condition, or (iii) 44 requiring removal of the equipment by the registrant or by the registrant's surety under the 45 bond required by Section 116.05. 46 47 Any registrant who has unusable equipment in any right-of-way shall remove it from 48 that right-of-way during the next scheduled excavation, unless this requirement is waived by 49 the Director. 50 51 �2 ��/��9� . 1 Sec. 116.18. Reservation of Regulatory and Police Powers. �� _ '��o 2 3 The City by the granting of a right-of-way permit, or by registering a person under 4 Sections 116.05-.07, does not surrender or to any extent lose, waive, impair, or lessen the 5 lawful powers and rights, which it has now or may be hereafter vested in the City under the 6 Constitution and statutes of the State of Minnesota and under the Charter of the City of Saint 7 Paul to regulate the use of the right-of-way by the permittee; and the permittee by its 8 acceptance of a right-of-way permit or of registration under Section 116.05-.07 must agree 9 that all lawful powers and rights, regulatory power, or police power, or otherwise as are or 10 the same may be from time to time vested in or reserved to the City, shall be in full force and 11 effect and subject to the exercise thereof by the City at any time. A permittee or registrant is 12 deemed to acknowledge that its rights are subject to the regulatory and police powers of the 13 City to adopt and enforce general ordinances necessary to the safety and welfare of the public 14 and is deemed to agree to comply with all applicable general laws and ordinances enacted by 15 the City pursuant to such powers. 16 17 Any conflict between the provisions of a registration or of a right-of-way permit and 18 any other present or future lawful exercise of the City's regulatory or police powers shall be 19 resolved in favor of the latter. 20 21 22 Sec. 116.19. Severability. 23 24 If any section, subsection, sentence, clause, phrase, or portion of this Chapter or 25 Chapter 135 is for any reason held invalid or unconstitutional by any court or administrative 26 agency of competent jurisdiction, such portion shall be deemed a separate, distinct, and 27 independent provision and such holding shall not affect the validity of the remaining portions 28 thereof. If a regulatory body or a court of competent jurisdiction should determine by a final, 29 non-appealable order that any permit, right or registration issued under Chapters 116 and 135 30 or any portions of these chapters is illegal or unenforceable, then any such permit, right or 31 registration granted or deemed to exist hereunder shall be considered as a revocable permit 32 with a mutual right in either party to terminate without cause upon giving sixty (60) days 33 written notice to the other. The requirements and conditions of such a revocable permit shall 34 be the same requirements and conditions as set forth in the permit, right or registration, 35 respectively, except for conditions relating to the term of the permit and the right of 36 termination. If a permit, right or registration shall be considered a revocable permit as 37 provided herein, the permittee must acknowledge the authority of the City Council to issue 38 such revocable permit and the power to revoke it. 39 40 41 Sec. 116.20. Board of Water Commissioners; City. Notwithstanding anything to the 42 contrary in this Chapter 116 or in Chapter 135 of the Legislative Code, the Board of Water 43 Commissioners established pursuant to 1885 Minn. Laws, Ch. 110, may, at its discretion, 44 satisfy requirements for the posting of a bond by written undertaking which obligates said 45 Board as a surety with respect to such requirements. The said Board may also, at its 46 discretion, satisfy requirements for obtaining and maintaining insurance by written undertaking 47 obligating said Board to the City as required in said Chapters, provided, however, that such 48 undertaking need not waive liability limits or defenses available to it as a body corporate and 49 politic organized and existing under the laws of Minnesota. The City is excepted from the 50 insurance and bonding requirements of these ordinances. 51 i 3 �/��l�G . - 2 �� - ��Ib 3 4 5 Section 2 6 7 This ordinance shall take effect and be in force thirty (30) days following its passage, 8 approval and publication. pIIRt ieucn DEC 28 '1996 Yeas Navs Absent Requested by Department of: a e ostrom arris uerin eqar Rettman une BY� �- - l� Form Approved by City Attorney Adopted by Council: Date Q„�. �\ , Adoption Certified by Council Secretary By: ��./<f ylj By� Approved by Mayor for Submission to 2 � CO1111C11 Approved by Mayor: Date /G By: By: � DEPART1iAENTADFFICElCOUNCIL DATE INITIATED G R E E N S H E ET �� \ N O 36340 ` Pablic Works 10/22/96 INITIAUDATE INITU1WpTE CONTACT PER30N 8 PHONE 1 pEppRTMENT DIRECTOR �CJ ?�Z �CITY COUNCIL Sta BACI(8� 266's�ss �� CITY ATTORNEY /C� Z 4 CITY CLERK MU3T BE ON WUNCIL AOENDA BY(DATE7 ROUTING g�pr,ET DIRECTOR FIN.6 MGT.3ERVICE3 DIR. October 30, �9� � MAYOR(OR A381STANn �v �-�� --- TOTAL N OF SIGNATURE PACiE8 �_ (GJP ALL IOCATION8 FOR 810NAiURE) ASSOCIATE OEPT.ACCOUNTANT 14CTION RE�UESTED Approval of New chapter 116 dealing with Right of Way control administration. RECOMMEt�ATIONS:Approw(A)«He}a(R► pEp90NA�gEpyICE CONTpACTg MUST AI�WER THE FOLLOWI QUESTIONS: _PLANNMIO COMMIS310N _CIVIL SERVICE C�MMISSION �• ��$ E��NO ��under a contract for this department? _CIB COMMIITEE _ 2. H88 thlS persan/fi Neover been a city employee? Y A STAFF 3. Doea thia person/firm possess a skill not►wrmally possessed by any current ciry — — employee? DISTRICT COUNCIL YES NO SUPPORTS WHICH COUNCIL OBJECTNE4 ��^��°��^d attach to grNn shNt INITIATNrO PR08LEM,ISSUE,OPPORTUNITY(WHO,NMAT,WHEN,WHERE,WHY): Inadequate coordination of utility cuts and major street work has resufted in extra oosts to the city, and disruption to its citizens. ADVANTAGES IF APPROVEO: The ordinances lay the framework to force better coordination and planning. DISAOVANTACiES IF APPROVED: Wiil require more effort to coordinate. Some utilities may oppose the added regulation. � � ��p �':��r� u� , �v . n� c:7 ��.�i� DISADVANTA(3ES IF NOT APPROVED: The city will not benefit from the proposed changes, and a good deal of effort will be wasted. TOTAL AMOUNT OF TRANSACTION i tbST/REVENUE BUD�iETED(CIRCLE ONE) YES No �N�a$�� ACITVITY NUMBER fINANCIAL INFORMATION:(EXPLAIf� E �" � r� � Council File # ��c_-�3�0 s ; '" � t ` �� ' ` ' " r � � �••� Ordinance # Green sheet # 3�� y� ORDINANCE CITY OF SAINT PAUL, MINNESOTA Presented By G(�� '� /L�i�/ Referred To Committee: Date 1 2 3 4 An ordinance to enact a new Chapter 116 5 of the Saint Paul Legislative Code 6 to administer and regulate the 7 public right-of-way in the public intere . 8 9 THE COUNCIL OF THE CITY OF SAINT PAUL DOES O AIN: 10 11 Section 1 12 13 Chapter 124 of the Saint Paul Legislative Co e is hereby repealed in its entirety, and 14 is replaced by the following new Chapter 116, to ad as follows: 15 16 17 C pter 116 18 Right-of- ay Administration 19 20 Sec. 116.01. Findings and Purpose. 21 22 General. 23 24 In order to provide f the health, safety and well-being of its citizens, as well as to 25 insure the structural integ ' y of its streets and the use of the rights-of-way, the City strives to 26 keep its rights-of-way i a state of good repair and free from unnecessary encumbrances. 27 Although the general opulation bears the financial burden for the upkeep of the rights-of- 28 way, a primary cau for the early and excessive deterioration of its rights-of-way is their 29 frequent excavati by persons whose equipment is located therein. 30 31 Right f-way obstruction is a source of loss of business to merchants and others whose 32 places of siness are located nearby and a cause of frustration for the general population 33 which st avoid these obstructions or change travel or shopping plans because of them. 34 Perso whose equipment is located within the right-of-way are the primary cause of these 35 fre ent obstructions. 36 37 The City recognizes that it holds the rights-of-way within its geographical boundaries 38 as an asset in trust for its citizens. The City and other public entities have invested millions of 39 dollars in public funds to build and maintain the right-of-way. It also recognizes that some 40 persons, by placing their equipment in the right-of-way and charging the citizens of the City 41 for goods and services delivered thereby, are using this property held for the public good. � ��i�� —��—�cJ 1 Although such services are often necessary or convenient for the citizens, such persons receive 2 revenue and/or profit through their use of public property. 3 4 In response to the foregoing facts, the City hereby enacts new Chapters 116 and 135 5 of the St. Paul Legislative Code relating to right-of-way permits and administration, together 6 with an ordinance making necessary revisions to other Code provisions and an ordinance 7 providing for a telecommunications franchise. These ordinances impose reasonable regulations 8 on the placement and maintenance of equipment currently within its rights-of-way or to be 9 placed therein at some future time. Under these ordinances, persons disturbing and 10 obstructing the rights-of-way will bear a fair share of the financial responsibility for the' 11 integrity. Finally, these ordinances provide for recovery of out-of-pocket and projecte costs 12 from persons using the public rights-of-way. 13 14 In addition to the foregoing recovery of costs and regulation of use, the ouncil 15 determines that there is an existing and legitimate state and local public polic , which 16 authorizes the City to require additional payments as reimbursement or rat of return to the 17 public for the use value of the public rights-of-way from those who ob ' revenue or profits 18 from such use. This reimbursement is provided for and defined in this rdinance as the "user 19 fee." 20 21 22 User fee. 23 24 Public Interest and Welfare. The Council of the ity of Saint finds that it is in the 25 public interest to provide for the payment of a user fee a11 persons which use and occupy 26 the right-of-way for the purpose of operating their bu ' esses. This provides equity by 27 requiring all users of the right-of-way to pay compe sation apportioned equally among them 28 all for the value and benefit of using such right-o ay. To insure such equal treatment, these 29 ordinances exempt franchise holders which pay anchise fees to the City from the payment of 30 a user fee. 31 32 Legislative Power. In these situati s, the Council of the City of Saint Paul desires to 33 exercise its lawful police power and co on law authority, and all statutory authority which 34 is available to it, including, but not li ted to, the powers conferred on it under Section 11.01 35 of its Charter and under Minn. Stat. 216B.36, 222.37, 237.16 and 300.03. The Council 36 finds and determines that the publi interest will be best protected by adopting these 37 ordinances which require the pay ent of such user fee as authorized by law, and which 38 confer the right to occupy the r' ht-of-way in cases in which the occupant of the right-of-way 39 does not have a franchise. 40 41 Computation of er fee. Reserved. 42 43 44 45 46 47 48 49 50 51 2 �$re jr.��. 1 �y��3`l0 2 3 4 Not a Rate. The Council finds and determines that the user fee authorized by this 5 ordinance is not and is not intended to be a rate as that term is defined in Minn. Stat. § 6 216B.02, subd. 5. Such user fee is not a fee for a service that is provided to the customer a 7 person using the right-of-way, but is rather a fee paid for the right of that person to op ate 8 in the public right-of-way, and to maintain the equipment of a utility in the right-of- y in 9 Saint Paul. 10 11 The findings in the Purpose Statement in Chapter 135 are hereby inco rated in and 12 adopted as part of this chapter. 13 14 15 Sec. 116.02. Definitions 16 17 The following definitions apply in both Chapters 116 and 5 of the Saint Paul 18 Legislative Code, (hereafter, "Chapters 116 and 135" or "these dinances"). References 19 hereafter to "sections" are unless otherwise specified reference to sections in the Saint Paul 20 Legislative Code. Defined terms remain defined terms whet r or not capitalized. 21 22 (a) "Applicant" means any person requesting pe ission to excavate or obstruct a 23 right-of-way. 24 25 (b) "City" means the City of St. Paul, Mi sota. 26 27 (c) "City Cost" means the direct and in ' ect costs borne by the City to process and 28 check applications, issue permits, inspect job ites, create and update mapping systems, and 29 perform all of the other tasks required by apters 116 and 135. 30 31 (d) "Department" means the Dep ment of Public Works of the City. 32 33 (e) "Department Inspector" ans any person authorized by the Director to carry out 34 inspections related to the provisio of Chapters 116 and 135. 35 36 (� "Director" means th Director of the Department of Public Works of the City, or 37 her or his designee. 38 39 (g) "Disruptive C t" is the cost of the loss of business suffered by merchants and the 40 adverse impact on City itizens and others who are required to alter travel routes and times 41 resulting from right-o -way obstructions. 42 43 (h) "Emer ncy" means a condition that poses a clear and immediate danger to life or 44 health, or of a s' nificant loss of property. 45 46 (i) " quipment" means any tangible thing located in any right-of-way; but shall not 47 include b levard plantings or gardens planted or maintained in the right-of-way between a 48 person' property and the street curb. 49 50 3 �tp�tz(�rG 1 (j) "Excavate" means to dig into or in any way remove or physically disturb or��\�'�� 2 penetrate any part of a right-of-way. 3 4 (k) "Excavation permit" means the permit which, pursuant to Chapters 116 and 135, 5 must be obtained before a person may excavate a right-of-way. � 6 7 (1) "Excavation Permit Fee" means money paid to the City by an applicant to co er the 8 costs as provided in Section 135.06. 9 10 (m) "In," when used in conjunction with "right-of-way," means over, abo , in, within, 11 on or under a right-of-way. 12 13 (n) "Local Representative" means the person or persons, or design of such person or 14 persons, authorized by a registrant to accept service and to make decisi s for that registrant 15 regarding all matters within the scope of Chapters 116 and 135. 16 17 (o) "Obstruct" means to place any tangible object in a rig -of-way so as to hinder free 18 and open passage over that or any part of the right-of-way. 19 20 (p) "Obstruction Permit" means the permit which, p suant to Chapters 116 and 135, 21 must be obtained before a person may obstruct a right-of- ay. 22 23 (� "Obstruction Permit Fee" means money pa' to the City by a registrant to cover the 24 costs as provided in Section 135.06. 25 26 (r) "Permittee" means any person to who a permit to excavate or obstruct a right-of- 27 way has been granted by the City under Chap r 116 or 135. 28 29 (s) "Person" means any natural or c rporate person, business association or other 30 business entity including, but not limited o, a partnership, a sole proprietorship, a political 31 subdivision, a public or private agency f any kind, a utility, a successor or assign of any of 32 the foregoing, or any other legal enti which has or seeks to have equipment located in any 33 right-of-way. 34 35 (t) "Registrant" means an person who (1) has or seeks to have its equipment located 36 in any right-of-way, or (2) in y way occupies or uses, or seeks to occupy or use, the right- 37 of-way or any equipment loc ed in the right-of-way. 38 39 (u) "Registration F e" means money paid to the City by a registrant. 40 41 (v) "Removal ond" means a bond posted to ensure the availability of sufficient funds 42 to remove a registr�ft's equipment upon its possible abandonment or disuse, or to discontinue 43 a registrant's use c�r occupation of the right-of-way. 44 45 (w) " storation" means the process by which an excavated or obstructed right-of-way 46 is returned a condition which approximates as closely as possible its condition before the 47 excavatio . 48 49 (x) "Restoration Fee" means an amount of money paid to the City by a permittee to 50 co� r the cost of restoration. 51 - 4 � �IZ�fL G �"�—c O 1 (y) "Right" is the legal entitlement of a person to use the right-of-way in the City o� 2 Saint Paul for the purposes of carrying on its business. A right for the purpose of these 3 chapters does not include, and does not refer to, a license, permit or franchise. Right shall not 4 include the use of the right-of-way for purposes not in furtherance of the furnishing of Utility 5 Services, unless the person pays the user fee for such non-utility service use. 6 7 (z) "Right-of-way" means the surface and space above and below any real prope in 8 which the City has an interest in law or equity, whether held in fee, or other estate or ' terest, 9 or as a trustee for the public, including, but not limited to any public street, boulev d, road, 10 highway, freeway, lane, alley, court, sidewalk, pazkway, river, tunnel, viaduct, br' ge, park, 11 skyway, skyway bridge or any other place, area, or real property owned by or der the 12 control of the City, or in which the City has such an interest. 13 14 (aa) "Right-of-way permit" means either the excavation permit or e obstruction 15 permit, or both, depending on the context, required by Chapters 116 13 5. 16 17 (bb) "Service" or "Utility Service" includes (i) those servic provided by a public 18 utility as defined in Minn. Stat. § 216B.02, subds. 4 and 6 (199 , (ii) telegraph, telephone, 19 fiber-optic communications, pipeline, community antenna telev'sion, cable communications, 20 fire and alarm communications, water, electricity, light, heat cooling energy, or power 21 services, (iii) the services provided by a corporation org ' ed for the purposes set forth in 22 Minn. Stat. § 300.03 (1994); and (iv) the services provi d by a district heating or cooling 23 system. 24 25 (cc) "Supplementary Application" means application made to excavate or obstruct 26 more of the right-of-way than allowed in, or to tend, a permit that had already been issued. 27 28 (dd) "Unusable equipment" means e ipment located in the right-of-way which has 29 remained unused for one year and for whi the registrant is unable to provide proof that it 30 has either a plan to begin using it withi e next twelve months or a potential purchaser or 31 user of the equipment. 32 33 (ee) "User fee" is the sum o money, payable to the City, by a person using or 34 occupying the right-of-way, in amount equal to One Dollar ($1.00) per year; provided, 35 however, that the City may at i option provide, at any time by ordinance or by amendment 36 thereto, for a greater or differ nt fee applicable to all such persons in an amount and by a 37 method of determination as ay be further provided in such ordinance or amendment thereto. 38 39 "Commercial str t" means any street in the City whose Average Daily Traffic count is 40 2,000 or more vehicle per day. 41 42 "Downto business district" means that portion of the City of Saint Paul lying within 43 and bounded by e following streets: Beginning at the intersection of Shepard Road with 44 Chestnut Stre , Chestnut Street to Interstate Freeway 35E, Interstate Freeway 35E to 45 Intersta.te Fr eway 94, Interstate Freeway 94 to Lafayette Bridge, Lafayette Bridge to where 46 the bridge rosses over Warner Road, Warner Road to Shepazd Road, Shepard Road to 47 Chestnu Street. 48 49 j "Residential street" means any street in the City whose Average Daily Traffic count is 50 l�ss than 2,000 vehicles per day. 51 `' 5 �� ro�i7/�� 1 ��\3`1G 2 "Square foot" for the purpose of this definition sha11 be the surface area of the right- 3 of-way expressed in total square feet in which the person's equipment is located (hereafter, 4 the "footprint"), plus an additional surface area of the right-of-way determined by drawing a 5 line azound the entire footprint, which line is at all points two feet distant from the nearest 6 line of the footprint. The user fee shall be the product of the unit rate in (i), (ii) or (iii) ab e 7 times the total square feet. 8 9 10 Sec. 116.03. Administration. 11 12 The Director of the Department of Public Works shall be the princip ity official 13 responsible for the administration of the rights-of-way, right-of-way permit , and the 14 ordinances related thereto. The Director may delegate any or a11 of the ties hereunder. 15 16 17 Sec. 116.04. Utility Coordination Committee. 18 19 There is hereby created a utility coordination committ . This committee shall be 20 voluntary and advisory to the Director. It shall be compos of any registrants that wish to 21 assist the City in obtaining information and by making re ommendations regarding ways to 22 take greater responsibility for the right-of-way, and to ' prove the process of performing 23 construction work therein. The Director may determi e the size of such committee. 24 25 26 Sec. 116.05. Registration and Right-of-Way ccupancy. 27 28 Each person who occupies, uses, or eeks to occupy or use, the right-of-way or any 29 equipment located in the right-of-way, or ho has, or seeks to have, equipment located in any 30 right-of-way shall register with the Dep ent. Registration will consist of providing 31 application information to and as req 'red by the Director, making a written commitment to 32 pay a user fee, and posting a remov bond. 33 34 The user fee shall be an ount as defined and provided in Section 116.02. 35 36 The removal bond fo a registrant which already has equipment in the right-of-way 37 shall be in an amount suffi ent to cover the cost of removing the registrant's equipment and 38 restoring the right-of-way thereafter, and where applicable, as required in Section 116.17 39 relating to abandoned o unusable equipment. A registrant which is seeking to place 40 equipment, whether f the first time or in addition to existing equipment, shall provide a 41 removal bond as re ired by Section 135.04(d). 42 43 No pers may construct, install, repair, remove, relocate, or perform any other work 44 on, or use any equipment or any part thereof located in any right-of-way without first being 45 registered ' h the Department. 46 47 otwithstanding any other provision of law, a registrant which has a franchise from 48 the C' under Chapter 16 of the City Charter, which franchise provides for the payment of 49 fr ise fees thereunder, shall not be required to pay a user fee. 50 � �o��fG 6 1 Nothing herein or in Chapter 135 shall be construed to repeal or amend the pro�sions�G 2 of a city ordinance permitting persons to plant or maintain boulevard plantings or gardens or 3 in the area of right-of-way between their property and the street curb. Persons planting or 4 maintaining boulevazd plantings or gazdens shall not be deemed to use or occupy the right-of- 5 way, and shall not be required to obtain any permits or satisfy any other requirements for 6 planting or maintaining such boulevard plantings or gardens under this Chapter or Chapter 7 135. 8 9 10 Sec. 116.06. Grant of Right; Payment of user fee. 11 12 Any person required to register under Section 116.05, which furnishes u ' ity services 13 or which occupies, uses, or places its equipment in the right-of-way, is hereb granted a right 14 to do so if and only so long as it (1) timely pays the user fee as provided rein, and (2) 15 complies with all other requirements of law. 16 17 Such fee shall be paid to the City in substantially equal mont y installments, subject 18 to adjustment and correction at the conclusion of the calendar year uch fee shall be paid for 19 all and any part of a calendar year, prorated on a daily basis, d ' g any time period in which 20 the said person (a) uses or occupies the right-of-way to furnis tility service, or (b) places, 21 maintains or uses its wires, mains, pipes, or any other faciliti s or equipment in the right-of- 22 way. 23 24 This section does not apply to a person which es and occupies the right-of-way for 25 the purpose of operating its business when there is a anchise agreement between that person 26 and the City of Saint Paul which provides for the p yment of franchise fees. 27 28 The grant of such right is expressly con tioned on, and is subject to, continuing 29 compliance with all provisions of law, includi g this chapter and Chapter 135. 30 31 32 Sec. 116.07. Registration Information. 33 34 The information provided to t e Department at the time of registration shall include, 35 but not be limited to: 36 37 (a) Each registrant's n , Gopher One-Call registration certificate number, address 38 and e-mail address if a plicable, and telephone and facsimile numbers. 39 40 (b) The name, addr ss and e-mail address, if applicable, and telephone and facsimile 41 numbers of a loc representative. The local representative shall be available at all 42 times. Current i ormation regarding how to contact the local representative in an 43 emergency sh 1 be provided at the time of registration. 44 45 (c) A cert' icate of insurance: 46 47 1) Verifying that an insurance policy has been issued to the registrant by an 48 insurance company licensed to do business in the State of Minnesota, 49 50 7 � /%T/�L 1 (2) Verifying that the registrant is insured against claims for personal injury�� 2 including death, as well as claims for property damage arising out of the (i) use 3 and occupancy of the right-of-way by the registrant, its officers, agents, 4 employees and permittees, and (ii) placement and use of equipment in the right- 5 of-way by the registrant, its officers, agents, employees and permittees, 6 including, but not limited to, protection against liability arising from comple d 7 operations, damage of underground equipment and collapse of property, 8 9 (3) Naming the City as an additional insured as to whom the coverag 10 required herein are in force and applicable and for whom defense ' 1 be 11 provided as to all such coverages, 12 13 (4) Requiring that the Director be notified thirty (30) days i dvance of 14 cancellation of the policy, and 15 16 (5) Indicating comprehensive liability coverage, auto ile liability coverage 17 and umbrella coverage in amounts established by th director of the office of 18 risk and employee benefit management in amount sufficient to protect the City 19 and carry out the purposes and policies of Chap rs 116 and 135. 20 21 (d) If the person is a corporation, a copy of the ce ' icate required to be filed under 22 Minn. Stat. § 300.06 as recorded and certified to y the secretary of state. 23 24 (e) A copy of the person's certificate of auth rty from the Minnesota public utilities 25 commission, where the person is lawfully r uired to have such certificate from said 26 commission. 27 28 (� A statement whether the person ha a franchise from and with the City and a copy 29 of the acceptance of such franchise ich has been filed with the City Clerk. 30 31 The registrant shall keep all of t information listed above current at all times by 32 providing to the Department informati n of changes within fifteen (15) days following the 33 date on which the registrant has kno ledge of any change. 34 35 36 Sec. 116.08. Reporting Oblig ions. 37 38 (a) Onerations. Eac registrant shall, at the time of registration and by December 1 of 39 each year, file a construc ' n and major maintenance plan with the Department. Such plan 40 shall be submitted usin a format designated by the Director and shall contain the information 41 determined by the Dir ctor to be necessary to facilitate the coordination and reduction in the 42 frequency of excava ons and obstructions of rights-of-way. 43 44 The plan all include, but not be limited to, the following information: 45 46 (1) the specific locations and the beginning and ending dates of all Proj ects to be 47 commenced during the next calendar year (in this section, a "Next-year 48 Project"); and 49 y� lo�7T�yG 8 1 (2) the tentative locations and beginning and ending dates for all Projects ��G 2 contemplated for the five years following the next calendar year (in this 3 section, a "Five-year Project"). 4 � 5 The term "project" in this section shall include both Next-year Projects and Five-year Proj�ts. 6 � 7 By January 1 of each year the Department will have available for inspection i rts 8 offices a composite list of all Projects of which it has been informed in the annual ans. All 9 registrants are responsible for keeping themselves apprised of the current status o this list. 10 11 Thereafter, by February l, each registrant may change any Project in 'ts list of Next- 12 Year Projects, and must notify the Director and all other registrants of all ch changes in 13 said list. Notwithstanding the foregoing, a registrant may at any time jo' in a Next-yeaz 14 Project of another registrant that was listed by the other registrant. 15 16 (b) Fee Information. A person having a right under Secti 116.06 is required to 17 maintain such records of the location of its equipment in the ri ts-of-way within the City, 18 the payment of any user fee hereunder, and such other recor as the Director may reasonably 19 require, as will permit and enable the proper and efficient orcement of the provisions of 20 this chapter. Such person will annually make such repo , in such form as the Director may 21 reasonably require. Such person shall annually cause audit to be performed, at its sole 22 expense, to verify that the records and reports are ac urate and reflect that the person has paid 23 the proper amount of user fees as required herein. 24 25 26 Sec. 116.09. Mapping Data. 27 28 Each registrant shall, within one ar from the date of passage of this ordinance, 29 provide to the Department information 'ndicating the horizontal and vertical location, relative 30 to the boundaries of the right-of-way of all equipment which it owns or over which it has 31 control and which is located in any ight-of-way. This information shall be provided with the 32 specificity and in the format requ sted by the Department for inclusion in the mapping system 33 used by the Department. 34 35 Within six months o the acquisition, installation, or construction of additional 36 equipment or any relocati , abandonment, or disuse of existing equipment, each registrant 37 shall supplement the m ping information required herein. 38 39 At the reque of any registrant, any information requested by the Department which 40 qualifies as a "tra -secret" under Chapter 94 of the St. Paul Administrative Code or Minn. 41 Stat. § 13.37(b) all be treated as trade secret information as detailed therein. 42 43 44 Sec. 116.1 . Location of Equipment. 45 46 a) Under�roundin� Unless existing above-ground equipment is used, new construction 47 and e installation of new equipment shall be done underground or contained within 48 b ' dings or other structures in conformity with applicable codes. 49 50 (b) Corridors. The Director shall assign specific corridors within the right-of-way, or 51 "any particular segment thereof as may be necessary, for each type of equipment that is or, 9 �� d?s�'�G �lp-'�310 1 pursuant to current technology, the Director expects will someday be located within the righ- 2 of-way. All excavation, obstruction, or other permits issued by the Department involving the 3 installation or replacement of equipment shall designate the proper corridor for the equipment � 4 at issue. ./ 5 r 6 Any registrant whose equipment is located in the right-of-way in a position at v ' ce 7 with the corridors established by the Director sha11, no later than at the time of the ne 8 reconstruction or excavation by the Department of the area where its equipment is 1 ated, 9 move that equipment to its assigned position within the right-of-way, unless this r uirement 10 is waived by the Director. 11 12 (c) Nuisance. One year after the passage of this ordinance, any equi ent found in a 13 right-of-way that has not been registered shall be deemed to be a nuisanc . The City may 14 exercise any remedies or rights it has at law or in equity, including, bu ot limited to, abating 15 the nuisance pursuant to Section 45.11 of the Legislative Code or ' g possession of the 16 equipment and restoring the right-of-way to a useable condition. 17 18 (d) Limitation of Space. The Director shall have the po r to prohibit or limit the 19 placement of new or additional equipment within the right-of- ay if there is insufficient space 20 to accommodate all of the requests of registrants or persons o occupy and use the right-of- 21 way. In making such decisions, the Director shall strive to e extent possible to accommodate 22 all existing and potential users of the right-of-way, but all be guided primarily by 23 considerations of the public interest, the public's need for the particular utility service, the 24 condition of the right-of-way, the time of year with spect to essential utilities, the protection 25 of existing equipment in the right-of-way, and fu e City plans for public improvements and 26 development projects which have been determin to be in the public interest. 27 28 29 Sec. 116.11. Relocation of Equipment. 30 31 When working in the rights-of- y, permittees shall not interfere with the safety and 32 convenience of ordinary travel along d over the rights-of-way nor interfere with other uses 33 to which the rights-of-way may be t by the City of St. Paul. 34 35 The person must promptl and at its own expense, with due regard for seasonal 36 working conditions, permanent remove and relocate its equipment and facilities in the right- 37 of-way whenever the directo requests such removal and relocation, and shall restore the right- 38 of-way to the same conditi it was in prior to said removal or relocation. The director may 39 make such request in ord to prevent interference by the Company's equipment or facilities 40 with (i) a present or fu e City use of the right-of-way, (ii) a public improvement undertaken 41 by the City, (iii) an e onomic development project in which the City has an interest or 42 investment, or whe the public health, safety and welfare requires it, or when necessary to 43 prevent interfere e with the safety and convenience of ordinary travel over the right-of-way. 44 45 Notwi standing the foregoing, a person sha11 not have to remove or relocate its 46 equipment om any right-of-way which has been vacated in favor of a non-governmental 47 entity unl s and until the reasonable costs thereof are first paid to the person therefor. 48 49 50 51 _ �ItBIyG 10 1 Sec. 116.12. Pre-Excavation Equipment Location. �b-�3�C� 2 3 In addition to complying with the requirements of Minn. Stat. §§ 216D.01-.09 ("One ` 4 Call Excavation Notice System") before the start date of any right-of-way excavation, each 5 registrant who has equipment located in the area to be excavated shall mark the horizontal d 6 approximate vertical placement of all said equipment. �' 7 8 Any registrant whose equipment is less that twenty (20) inches below a concr e or 9 asphalt surface shall notify and work closely with the excavation contractor in an ort to 10 establish the exact location of its equipment and the best procedure for excavati . 11 12 13 Sec. 116.13. Damage to Other Equipment. 14 15 When the Department performs work in the right-of-way and nds it necessary to 16 maintain, support, or move a registrant's equipment in order to pro ct it, the costs associated 17 therewith will be billed to that registrant and must be paid within 'rty (30) days from the 18 date of billing. 19 20 Each registrant shall be responsible for the cost of r airing any equipment in the 21 right-of-way which it or its equipment damages. Each re istrant shall be responsible for the 22 cost of repairing any damage to the equipment of ano r registrant caused during the City's 23 response to an emergency occasioned by that registr 's equipment. 24 25 26 Sec. 116.14. Right-of-Way Vacation. 27 28 If the City vacates a right-of-way w 'ch conta.ins the equipment of a registrant, the 29 City shall reserve, pursuant to Section 130 5, to and for itself and all registrants having 30 equipment in the vacated right-of-way, right to install, maintain and operate any 31 equipment in the vacated right-of-way d to enter upon such right-of-way at any time for the 32 purpose of reconstructing, inspecting maintaining or repairing the same. 33 34 If the vacation requires th relocation of registrant or permittee equipment; and (a) if 35 the vacation proceedings are i ' iated by the registrant or permittee, the registrant or permittee 36 must pay the relocation costs• or (b) if the vacation proceedings are initiated by the city or 37 other person or persons, the egistrant or permittee must pay the relocation costs unless 38 otherwise agreed to by th city, the registrant or permittee, and such other person or persons. 39 40 41 Sec. 116.15. Indem ification and Liability. 42 43 By reaso of the acceptanc� of a registration or the grant of a right-of-way permit, the 44 City does not sume any liability (a) for injuries to persons, damage to property, or loss of 45 service cl ' by parties other than the registrant or the City, or (b) for claims or penalties of 46 any sort re lting from the installation, presence, maintenance, or operation of equipment by 47 registran or activities of registrants. 48 49 By registering with the Department a registrant agrees, or by accepting a permit under 50 Ch ters 116 and 135 a permittee is required, to defend, indemnify, and hold the City whole 51 harmless from all costs, liabilities, and claims for damages of any kind arising out of the �- 11 /o�IY��G �11c'\3-1 C� 1 construction, presence, installation, maintenance, repair or operation of its equipment, or out 2 of any activity undertaken in or near a right-of-way, whether or not any act or omission 3 complained of is authorized, allowed, or prohibited by a right-of-way permit. It further 4 agrees that it will not bring, nor cause to be brought, any action, suit or other proceeding 5 claiming damages, or seeking any other relief against the City for any claim nor for any ,' 6 award arising out of the presence, installation, maintenance or operation of its equipm, 't, or 7 any activity undertaken in or near a right-of-way, whether or not the act or omissio � 8 complained of is authorized, allowed or prohibited by a right-of-way permit. The regoing 9 does not indemnify the City for its own negligence except for claims arising o of or alleging 10 the City's negligence where such negligence arises out of or is primarily rela d to the 11 presence, installation, construction, operation, maintenance or repair of sai equipment by the 12 registrant or on the registrant's behalf, including, but not limited to, the ' suance of permits 13 and inspection of plans or work. This section is not, as to third parties a waiver of any 14 defense or immunity otherwise available to the registrant or to the ' ; and the registrant, in 15 defending any action on behalf of the City, shall be entitled to ass in any action every 16 defense or immunity that the City could assert in its own behalf 17 18 19 Sec. 116.16. Future Uses. 20 21 In placing any equipment, or allowing it to be laced, in the right-of-way the City is 22 not liable for any damages caused thereby to any re istrant's equipment which is already in 23 place. No registrant is entitled to rely on the pro sions of Chapter 116 or 135, and no 24 special duty is created as to any registrant. Ch ters 116 and 135 are enacted to protect the 25 general health, welfare and safety of the publi at large. 26 27 28 Sec. 116.17. Abandoned and Unusable quipment. 29 30 A registrant who has determi d to discontinue its operations in the City must either: 31 32 (a) Provide information sa 'sfactory to the director that the registrant's obligations for 33 its equipment in the righ of-way under this chapter and Chapter 135 have been 34 lawfully assumed by ther registrant; or 35 36 (b) Submit to the di ctor a proposal and instruments for transferring ownership of its 37 equipment to the ty. If a registrant proceeds under this clause, the City may, at its 38 option: 39 40 (1) p hase the equipment, or 41 42 (2 require the registrant, at its own expense, to remove it, or 43 44 3) require the registrant to post a bond in an amount sufficient to reimburse 45 the City for reasonably anticipated costs to be incurred in removing the 46 equipment. 47 48 quipment of a registrant who fails to comply with the preceding pazagraph and 49 whic , for two years, remains unused sha11 be deemed to be abandoned. Abandoned 50 e pment is deemed to be a nuisance. The City may exercise any remedies or rights it has at 51 1 or in equity, including, but not limited to, (i) abating the nuisance pursuant to Section 12 �� `�ZT/�4 Glls�-'\31� 1 45.11, (ii) taking possession of the equipment and restoring it to a useable condition, or (iii) 2 requiring removal of the equipment by the registrant or by the registrant's surety under the 3 bond required by Section 116.05. 4 5 Any registrant who has unusable equipment in any right-of-way shall remove it from 6 that right-of-way during the next scheduled excavation, unless this requirement is waived by 7 the Director. 8 9 �' 10 Sec. 116.18. Reservation of Regulatory and Police Powers. 11 � 12 The City by the granting of a right-of-way permit, or by registering a rson under 13 Sections 116.05-.07, does not surrender or to any extent lose, waive, impai or lessen the 14 lawful powers and rights, which it has now or may be hereafter vested i he City under the 15 Constitution and statutes of the State of Minnesota and under the Ch r of the City of Saint 16 Paul to regulate the use of the right-of-way by the permittee; and permittee by its 17 acceptance of a right-of-way permit or of registration under Secti 116.05-.07 must agree 18 that all lawful powers and rights, regulatory power, or police p er, or otherwise as are or 19 the same may be from time to time vested in or reserved to e City, shall be in full force and 20 effect and subject to the exercise thereof by the City at an time. A permittee or registrant is 21 deemed to acknowledge that its rights are subject to the egulatory and police powers of the 22 City to adopt and enforce general ordinances necess to the safety and welfare of the public 23 and is deemed to agree to comply with all applicab general laws and ordinances enacted by 24 the City pursuant to such powers. 25 26 Any conflict between the provisions o a registration or of a right-of-way permit and 27 any other present or future lawful exercise the City's regulatory or police powers shall be 28 resolved in favor of the latter. 29 30 31 Sec. 116.19. Severability. 32 33 If any section, subsection'sentence, clause, phrase, or portion of this Chapter or 34 Chapter 135 is for any reason eld invalid or unconstitutional by any court or administrative 35 agency of competent jurisdic 'on, such portion shall be deemed a separate, distinct, and 36 independent provision and ch holding shall not affect the validity of the remaining portions 37 thereof. If a regulatory dy or a court of competent jurisdiction should determine by a final, 38 non-appealable order t t any permit, right or registration issued under Chapters 116 and 135 39 or any portions of th e chapters is illegal or unenforceable, then any such permit, right or 40 registration granted r deemed to exist hereunder shall be considered as a revocable permit 41 with a mutual rig in either party to terminate without cause upon giving sixty (60) days � 42 written notice t the other. The requirements and conditions of such a revocable permit shall 43 be the same r uirements and conditions as set forth in the permit, right or registration, 44 respectively except for conditions relating to the term of the permit and the right of 45 terminatio . If a permit, right or registration shall be considered a revocable permit as 46 provide erein, the permittee must acknowledge the authority of the City Council to issue 47 such r ocable permit and the power to revoke it. 48 49 50 51 �� IO%�1'�G 13 1 2 0�1��,-tG 3 4 Section 2 5 6 This ordinance shall take effect and be in force thirty (30) days following its passage, 7 approval and publication. Yeas Navs Absent Requested by Department of: a e ostrom arris uerin e ar e tman une By� Adopted by Council: Date Form Approved by City Attorney Adoption Certified by Council Secretary By: �• /C' �t �L BY� Approve y Mayor f Su mission to Counci Approved by Mayor: Date By: � By: