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00-268aN 2 S \_ 1 Council File # �� � �� 8 v ' p S`` ���^-� e- ` Ordinance # (��.� \ \ \ �, � �c o a Green Sheet # � 0 27 � S ORDINANCE ,, , CITY OF SAINT PAUL, MINNESOTA Presented By / �� Refesed To Committee: Date An ordinance amending I.enislative Code Chapters 116 and 135 of the Saint Paul L,egislative Code to provide for reb lation of the public right-of-way. THE COUNCiL OF THE CTI'Y OF SAINT PAUL DOES ORDAIN: 0 8 9 10 11 12 13 14 section 1. Legislative Code Chapter 116, is hereby amended to read: Chapter 116. Right-of-Way Administration Sec. 116.O1. Findings and purpose. General 15 In order to provide for the health, safety and well-being of its citizens, as well as to insure the structural 16 integrity of its streets and the use of the up blic rights-of-way, the city strives to keep its rights-of-way in 17 a state of good repair and free from unnecessary encumbrances. Although the general population bears 18 the financial burden for the upkeep of the rights-of-way, a primary cause for the eazly and excessive 19 deterioration of its rights-of-way is their frequent excavation by persons whose equipment is located 20 therein. 21 22 Right-of-way obstruction is a source of loss of business to merchants and others whose places of 23 business aze located nearby and a cause of frustration for the general population which must avoid these 24 obstructions or change travel or shopping plans because of them. Persons whose equipment or facilities 25 are is located within the right-of-way aze the primary cause of these frequent obstructions. 26 27 The city recognizes that it holds the rights-of-way within its geographical boundaries as an asset in trust 28 for its citizens. The ciry and other public entities have invested millions of dollars in public funds to build 29 and maintain the right-of-way. It also recognizes that some persons, by placing their equipment or 30 facilities in the right-of-way and charging the citizens of the city for goods and services delivered 31 thereby, are using this property held for the public good. Aithough such services are often necessary or li�i':� 1,� !i 00 -a�P 2 � 6 7 9 10 11 12 13 14 15 16 17 18 19 20 convenient for the citizens, such persons receive revenue and/or profit through their use of public property. The city finds that to protect the public health, safety, and welfaze, and to protect the public right-of-way and its current use, it is necessary for the city to detertnine the competence and qualifications of the persons who perform the actual excavation of the right-of-way, installation of facilities, and restoration of the right-of-way, at the request of, and on behalf of those persons who wish to place facilitfes in the public right-of-way. The lack of competence and qualification of persons who work in the right-of-way has caused substantial public inconvenience, substantial safety risks for the public, and has unduly restricted public use of the right-of-way. In response to the foregoing facts, the city hereby enacts new Chapters 116 and 135 of the St. Paul Legislative Code relaung to right-of-way permits and administration, together with an ordinance making necessary revisions to other Code provisions �--�� These ordinances impose reasonable regulations on the placement and maintenance of equipment or facilities currenfly within its rights-of-way or to be placed therein at some future time. Under these ordinances, persons disturbing and obstructing the rights-of-way will beaz a fair share of the financial responsibility foz their integrity. Finally, these ordinances provide for recovery of out-of-pocket and projected costs from persons using the public rights-of-way. �..A.�.�.�....�....���..��.��.�.....�� . :: : :. : -. .� •: . ... �. . . .. . � :. : : : :. .. .: . : : :. � ::: : :� .:. .. - . . . ... . . . ... . � . : : :. . . . : . . .. . . � . . . . . � . . 26 27 28 29 30 31 32 33 34 35 '.. : ;� .. : � . :. : ... : . .� : . ..• : .• :. . . : : ..� . . .... : :. .. ..•: :. ..• :. :. . : : .: : . : :... : . :.: : :. . . :� : . : . . . . . . :.: - : :� . :� :: .: - - - . - - •...:,...,u:i.y.� - : . . - - . .: •• � : :. : • : .. - : . .: .:• �: : � : :. : �::. .: :. : . :. . .. : .. : � : . .: � : : : . . . : : � : ..� • .: . . :� . :: : :. : :� . . . ... � 1 . . . : : . � ::.. : : :. .: � : . . � :. : : .• :� : . : .. ..• . � : ..:. 2 00 -���' �' C� 8 9 lo 11 12 13 14 15 �i����i.i��a��nbo•rr.vaiiii:w�iaii��r.���r.�u nnn� l�l�l�tl�l��{I�l�l�l�J��R�I�\�. J�\\T1�1�•I�.�1� ' • • � � \ �� \ � - � - • � 1 � \ � ` �� � • 1 � \ \ • \ • • • • � • • • • � � • • • � � • • • • • • • • • • • • • • .:� : : . . : . . . . . . : � : : .� :. � : . . : ._ %I����61�N��GU�S•!•�• A � � The findings in the purpose statement in Chapter 135 are hereby incorporated in and adopted as part of this chapter. Sec. 116.02. Definitions. 16 The following definitions apply in both Chaptexs 116 and 135 of the Saint Paul I.egislative Code 17 (hereafter, "Chapters 116 and 135" or "these ordinances"). References hereafter to "sections" are, 18 unless otherwise specified, references to sections in the Saint Paul Legislative Code. Defined terms 19 remain defined terms whether or not capitalized. 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 (11 Abandoned Facilit�means a facili no loneer in service or physically disconnected from a portion of the operatin facility, or from anv other facility, that is in use or still carries service. A facilitv is not abandoned unless declazed so by the ri¢ht-of-way user. (�2) Applicant means any person requesting permission to excavate or obstruct a right-of-way. (�� City means the City of St. Paul, Minnesota. (34) City mana eg ment cost means the ' actuai costs incuned by the ciry maintainine informaUon on a Geographical Information Svstem ("GIS"1 mappin�ystem; inspectingjob sites and restoration proiects; maintaining, supporting�protectin�, or movinguser equipment or facilities during�ublic right-of-way work; deternuning the adequacy of ri�ht-of-way restoralion; restorin�work inadequately�erformed after providing notice and the o�portunity to correct the work• and revoking right-of-waypermits and perfomung , > , , all of the other tasks required by Chapters 116 and 135, including other costs the city may incur in managin�provisions of this chapter. (5) Construction performance bond means any of the followin� forms of security provided at the permittee's o�tion• a) individual �roiect bond• bl cash deposit c) security of a form listed or approved 0 0 -aGP' 1 under Minnesota Statutes section 15.73, subdivision 3: d) letter of credit, in a form acceptable to the 2 Director; e) self-insurance, in a form acceptable to the Director: and fl a blanket bond for projects 3 within the City, or other forms of construction bond, for a time s�ecified and in a form acceptable to the 4 D'uector. 6 7 8 9 (61 Degradation means a decrease in the useful life of the right-of-way caused by excavation in or disturbance of the right-of-way resulting in the need to reconstruct such ri�ht-of-way eazlier than would be rec�uired if the excavation or disturbance did not occur. 10 (7) Degradation cost means the coSt to achieve a level of restorauon as determined by the city at the 11 time the uermit is issued, not to exceed the mazcimum restoration shown i�lates 1 to 13, set forth in 12 Minnesota Rules 7819.9900 to 7819.9950. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 (81 Deeradation fee means the estimated fee established at the time of �ermittin�v the citXto recover costs associated with the decrease in the useful life of the right-of-wav caused bv the excavation, and which eqnais the de�radation cost. (9) Delay penalty is the penalt�posed as a result of unreasonable delavs in riaht-of-way excavation, obstruction, patching�or restoration as established bv pernut. (�10) Department means the department of public works of the city. (311) Department inspector means any person authorized by the director to cany out inspecUons related to the provisions of Chapters 116 and 135. (fi12) Director means the director of the departrnent of public works of the city, or i�er�er the director's designee. (�13) Diszuptive cost is the penalty imposed as the result of � the adverse impact on city citizens and others who are required to alter travel routes and times resulting from right-of-way obstructions. 33 ($� Downtown business district means that portion of the City of Saint Paul lying within and bounded 34 by the following streets: Beganning at the intersection of Shepard Road with Chestnut Street, Chestnut 35 Street to Interstate Freeway 35E, Interstate Freeway 35E to Interstate Freeway 94, Interstate 36 Freeway 94 to Lafayette Bridge, Lafayette Bridge to where the bridge crosses over Warner Road, 37 Warner Road to Shepard Road, Shepazd Road to Chestnut Street. 38 39 (�15) Emergency means a condition that (a) poses a clear and immediate danger to life or health, or of 40 a significant loss of property; or (b) requires immediate repair or replacement in order to restore service 41 to a customer. 4 00 -2t�' (196) Equipment means any tangible asset used to install, repair. or maintain facilities in anv ri hg t-of- wav or which obstmcts an� rieht-of-way. -- and-thesri�eettt�rb. (1�7) Excavate or Excavation means to dig into or in any way remove or physically disturb or peneuate any part of a right-of-way. 9 (1�� Excavation pernut means the pemut which, pursuant to Chapters 116 and 135, must be obtained 10 before a person may excavate a right-of-way. An Excavation permit allows the hoider to excavate that 11 �art of the right-of-way described in such permit. 12 13 14 15 16 17 18 19 20 (139� Excavation permit fee means money paid to the city by an applicant to cover the costs as provided in seetiar� Chapte7 135.A6: (201 Facility or Facilities means anY taneible asset in the ri¢ht-of-way. - � : : . : : :• :..� . . . : . 21 (�-521) Local representative means the person or persons, or designee of such person or persons, 22 authorized by a registrant to accept service and to make decisions for that registrant regarding all 23 matters within the scope of Chapters 116 and 135. 24 25 26 27 28 29 30 31 32 33 34 35 36 (22) Minnesota Rules means Minnesota Rules as published by the Revisor of Statutes as thev existed on June 1, 1999, whether or not they aze currentiv in force. (i{23) 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. (i-�� Obstruction pernut means the permit which, pursuant to Chapters 116 and 135, must be obtained before a person may obsUuct a right-of-way. (i-8�5) Obstruction pernut fee means money paid to the city by a registrant ep rmitee to cover the costs as provided in seetian Cha�ter 135.8Er. 37 (26) Patch or Patchin� means a method of pavement replacement that is temporary in nature. A patch 38 consists of (1) the compaction of the subbase and aggregate base, and (21 the replacement, in kind, of 39 the existing�avement for a minimum of two feet be�ond the edges of the excavation in all directions. A 40 patch is considered full restoration onlv when the pavement is included in the citv's five �eaz project 41 l�an 5 oc-a6P' 2 0 7 (271 Pavement means any type of improved surface that is within the public right-of-wa�and that is paved or otherwise constructed with bituminous concrete, aggregate, or gravel. (i9� Pemuttee means any person to whom a pernut to excavate or obstruct a right-of-way has been granted by the ciry under Chapter 116 or 135. i ♦ �- \ - h� •/�tfl4�r�lUtRUOljl� :w�aiiwrmii�aiiauni:iouwiui:w�r:inln�� $ , > > 9 > b 10 -- . an individual or entit �} subject 11 to the laws and rules of this state, however organized, whether public or private, whether domestic or 12 foreign whether for profit or non�rofit, and whether natural, corporate, or political. Examples include: 13 A) a business or commercial enterprise organized as anv type or combination of corporation, 14 limited liability company�partnership, limited liability�artnership, proprietorship, association, 15 cooperative, ioint venture, cazrier or utilitv, and anv successor or assignee of anv of them; 16 B) a social or chazitable organization; and 17 C) anKtvpe or combination of political subdivision, which includes the executive, judicialzor 18 legislative branch of the state, a local �overnment unit, or a combination of any of them. 19 20 21 22 23 24 25 (z"�� Probation means the status of a person that has not complied with the conditions of Chapters 116 and 135. (�31) Probationary period means one (1) yeaz from the date that a person has been notified in writing that they have been put on probation. 26 (�332) Registrant means any person who (1) has or seeks to have its equipment or facilities located in 27 any right-of-way, or (2) in any way occupies or uses, or seeks to occupy or use, the right-of-way or 28 any equipment or facilities located in the right-of-way. 29 30 (�33) Registration fee means money paid to the city bq�regisir�xt to cover costs associated with 31 registration. 32 . �:. .. . .: . . : : . . • : . . : : .. :� :. . ... .. . :.: :: : : . : . . . . . . ... . : . 36 37 38 39 40 41 (�634) Restore or Restoration means the process by which an excavated � right-of-way and surroundine area, including pavement and foundation, is returned to ° the same condition that existed before the excavation. (�� Restoration €ee cost means an amount of money paid to the ciry by a permittee to cover the cost 0 � of restoration. ;- -.� . . . . : � -. : � . :� :. . � ...: : � _. .. - . .... : :. :. : .. :..: :i -: i - - .- --. :� - .-- :� a : .:- - .-- : a - i � � ��"_' .� • - :�. _ • _ � ' � ' i • _ _ • . t ___ ' r _ _� •:." ' •'_ � � � •" 9 (3936) Right-of-way or Public Ri�ht-of-way means the 10 , , 11 , , > > 12 , , , , , > 13 , , , 14 . azea in, on, below, or above a public roadwav, hiehway. street, cartwav, 15 bicvcle lane and pubiic sidewalk in which the citv has an interest, includin�other dedicated ri hte s-of- 16 wav for travel putposes and utilit�easements of the city. A right-of-wav does not include tt�e airwaves 17 above a public rieht-of-wa�with reeard to cellular or other nonwire telecommunications or broadcast 18 service. 19 20 (3937) Right-of-way pernut means either the excavation permit or the obstruction pernut, or both, 21 depending on the context, required by Chapters 116 and 135. 22 23 (38) Rieht-of-wa�user means: (1) a telecotnmunications right-of-way user as defined by Minnesota 24 Statutes, section 237.162, subdivision 4; or (21 a person ownin¢ or controllin� a facilitv in the public 25 rlght-of-way that is used or is intended to be used for providing utilitXservice, and who has a rieht 26 under law, franchise, or ordinance to use th�ublic ri¢ht-of-wak 27 28 (3-�39) 5ervice or utility service includes (i) those services provided by a public utility as defined in 29 Minn. Stat. § 216B.02, subds. 4 and 6{�9�j; (ii) , , - , 30 , , , , , 31 , , ' a , seroices of a telecommunications right-of-way 32 user, includingtransportin� of voice or data information; (iii) the services of a cable communications 33 svstem as defined in Minn. Stat. § 34 396:63-E�j 238; �(iv) natural gas or electric energy or telecommunications services provided bv 35 the city;_ (vl services provided by a cooperative electric associaUon oreanized under Minn. Stat. § 36 308.A; and (vi) water, sewer, steam, cooling or heatin¢ services 37 . 38 39 (3�40) Supplementary application means an application made to excavate or obstruct more of the 40 right-of-way than allowed in, or to extend, an obstruction or excavation pernut that had already been 41 issued. 7 aa -acY � io 11 12 13 14 15 16 17 18 . . . . . :: . . . : . .. . .-�:�--�: : :, :, : . . . . : . . . : • : . .. : . :, . . . , , : : : .: .. : . . ::. - . . : . .:. : .• . . . _ . . ... , . :. :. . . : . :. : . : : :. • : . :. . : . : : : .. . . : . : . : , . . : : :. : . • :, , . . . : :.. :. : :, . . . ., : , :, . .. :: . . . . . ...: : . .: :, : :, ; , Sea 116.03. Administration. The director of the department of public works shall be the principal city official responsible for the administration of the rights-of-way, right-of-way pernuts, and the ordinances related thereto. The director may delegate any or all of the duties hereunder. Sec. 116.04. Utility coordination committee. 19 There is hereby created a utility coordination committee. This committee shall be voluntary and advisory 20 to the director. It sh� mav be composed of any registrants that wish to assist the 21 city in obtaining information and by making recommendations regarding ways to take greater 22 responsibility for the right-of-way, and to improve the process of performing construction work therein. 23 The director shall determine the size of such committee, make all a�pointments to such committee, and 24 establish any rules governin� such committee. Notice of the meetings of such committee shail be given 25 by the director to any registrant making a written request to the director to be so notified. 26 27 Sec. ll6.05. Regisuation and right-of-way occupancy. 28 29 Each person who occupies, uses, or seeks to occupy or use, the right-of-way or any equipment or 30 facilities located in the right-of-way, or who has, or seeks to have, equipment or facilities located in any 31 right-of-way shall register with the department. Registration will consist of providing application 32 information te as required by the director, , 33 , and payment of anv reeistration fee. 34 35 36 37 38 39 40 41 �.�.�� � ns � A1:1 � l�t.SJI � r: n ol.t• n r: u � lil � m�r. Ali ��l u uKi r.O [n � mirn ��:ti � n f.I:PI e HI �����wvw� .� � .: : :.� : : . . .� : . :• :. . :. . : . . . :. :. . : : : : : . : . . . .� .. - . : � : . � : : :�. : :. :. : :. . � , . : ; � :: - : . :.. : . . 00 -a��- :. . :. . : . . . :. : .. .. :. : .. . .. 2 3 No person may construct, install, repair, remove, relocate, or perform any other work on, or use any 4 equipment or facili or any part thereof located in any right-of-way without first being registered with 5 the department. 6 : :. : • . . . � . . :� :� : : : :. .: :� • � � . .• : . .;. . ;� � . . . I�1�6���11U�LL�ll�1� • - • � � • lo 11 12 13 14 15 16 17 18 19 Nothing herein or in Chapter 135 shall be constmed to repeal or amend the provisions of a city ordinance permitting persons to plant or maintain boulevazd plantings or gardens or in the area of right-of-way between their property and the street curb. Persons planting or maintaining boulevazd plantings or gardens shall not be deemed to use or occupy the right-of-way, and shall not be required to obtain any permits or satisfy any other requirements for planting or maintaining such boulevazd plantings or gardens under this chapter or Chapter 135. Sec. 116.06. , . Reserved. 1 °. . . : . : : .: � . . : . : .. . : . . : .• . .:. : .: : : . . . : • : : : : . . : 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 . . . : . .. .. : .. . :: . ;� . : : : . : . : : :� . . .:� : : :� : :� .:� : :: . . : . . :: .. .. . .: . . . . : . . . : . . . . . . :. :. : . !�rt�aaur.�lrauu�:��riwuui:biva:ii�� - - i - . :. . :.. � . . . . . : : .. . . .. .. . .. .. . . . .: •: .. :. . .• : . .:. . .� : . . . : : : : :� : - .. : . . . . :� :� . . • : : .: .. : :. Sec. 116.07. Registration information. The information provided to the department at the time of registration shall include, but not be limited to: 0 Co .a �8' (1) Each registrant's name, Gopher State One-Call registration certificate number, address and e-mail address if applicable, and telephone and facsimile numbers. 4 (2} The name, address and e-mail address, if applicable, and telephone and facsimile numbers of a local 5 representative. The local representative shall be available at all times. Current information regazding 6 how to contact the local representative in an emergency shall be provided at the time of registration. (3) A certificate of insurance or self-insurance: 9 10 a. Verifying that an insurance policy has been issued to the registrant by an insurance company licensed 11 to do business in the State of Minnesota, or a form of self insurance acceptable to the citv; 12 13 b. Verifying that the registrant is insured against claims for personal injury, including death, as weli as 14 claims for property damage arising out of the (i) use and occupancy of the right-of-way by the 15 registrant, its officers, agents, employees and pernuttees; and (ii) placement and use of facilities and 16 equipment in the right-of-way by the registrant, its officers, agents, employees and pernuttees, including, 17 but not limited to, protection against liability arising from completed operations, damage of underground 18 equipment and collapse of property; 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 c. Naming the city as an additional insured as to whom the coverages required herein are in force and applicable and for whom defense will be provided as to all such coverages; d. Requiring that the director be notified thirty (30) days in advance of cancellation of the policy; �n$ or material modification of a coverage term; e. Indicating comprehensive liability coverage, automobile liability coverage, workers compensation, and umbrella coverage in amounts established by the director of the office of risk and employee benefit management in amounts sufficient to protect the ciry and carry out the putposes and policies of Chapters 116 and 135. (4) If the person is a corporation, a copy of the certificate required to be filed under Minn. Stat. § 300.06 as recorded and certified to by the secretary of state. (5) A copy of the person's order rantine a certificate of authority from the Minnesota Public Utilities Commission, where the person is lawfully required to have such ceftificate from said commission or other state or federal a encies. . - - . : . . : .. • . . :� . . ., . . The registrant shall keep all of the information listed above cuirent at all times by providing to the 10 po -a`P 2 4 5 6 7 9 10 11 12 13 14 15 16 17 department information of changes within fifteen (15) days following the date on which the registrant has knowledge of any change. Sec. 116.08. Reporting obligations. (a) 6geratiens Each registrant shall, at the time of registration and by December 1 of each yeaz, file a construction and major maintenance plan with the department. Such plan shall be submitted using a format designated by the director and shall contain the information determined by the director to be necessary to facilitate the coordination and reduction in the frequency of excavations and obstructions of rights-of-way. The plan shall include, but not be limited to, the following information: (1) The speei€�locations and the estimated beginning and ending dates of a11 projects to be commenced during the next calendar year (in this section, a"next-year project"); and 18 (2) To the extent known, the tentative locations and estimated beginning and ending dates for all 19 projects contemplated for the €roe-{Sj four yeazs following the next calendaz year (in this section, a 20 "five-year project"). 21 22 The term "project" in this section shall include both next-year projects and five-year projects. 23 24 By January 1 of each year, the department will have available for inspection in its oYfices a composite 25 list of a11 projects of which it has been informed in the annual plans. All registrants are responsible for 26 keeping themselves apprised of the current status of this list. 27 28 29 30 31 32 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 that was listed by the other registrant. . •. : : -. . .: . ... .. : : . .: � : . . : :.. . .:. : •. . : : . : : : . : :. . � :� : :. . .:. :�: . . ..�-: : .. . . -: . :. . . . : - . : . :. :. . . . :. .: • - ' . . . . . . . . . • . . � . .. .� . . � . . .: : . : .. . .. 40 41 - . Notwithstanding the foregoing, the director may, for good cause 11 00 -a «' 2 3 4 5 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 shown, allow a registrant to submit additional next-yeaz projects. Good cause includes, but is not limited to, the criteria set forth in section li5.1�2(c) conceming the discretionary issuance of pernuts. Sec. 116.09. Mapping data. - .� .. . . . . . ..� . . . . . .� . . . . : • : ... : � . : . •• : . : : : . . .. , ... . : • •• � . : :� : � :� : :.. :: ... : :� . . . • : : . : . : . � : .:� . : .. - i � � - i - � : � - � � • � . � " i � � � � � . 1 i � � � ' � �" � � �" .�� • • "� "� 1 .�' Within sis (6) months after the acquisition, installation, or construction of additional eqniPment facilities or any relocation, abandonment, or disuse of existing equigment facilities, each registrant shall supplement the mapping dxfx information required herein. A person wishinp to undertake a proiect within the public ri¢ht-of-way shall submit a ri¢ht-of-way permit a�ulication which contains the following information: L,ocation and a�roximate depth of ap�licant's mains, cables, conduits, switches, and related equipment and facilities, with the location based on: a) offsets from propertY lines, distances from the center line of public rieht-of-way, and the curb lines as determined bv the director, b) coordinates derived from the coordinate system bein ug sed by the director; or cl an o� ther svstem a�reed u�on by the right-of-wav user and the director. The type and size of the utilitv facilities. A description showin a� bove ground appurtenances. A le e,g nd explainin�ymbols, chazacters, abbreviations, scale and other data shown on the mao• Anv facilities to be abandoned, if a�plicable in conformance with Minnesota Statutes 216D.04, subdivision 3. The pemvttee shall submit "as-built" drawin�s reflectin�an sv ubsequent chanees and variations from the information provided under this section. 39 The ri�ht-of-wav user is not required to provide or convey mappine information of data in a format or 40 manner that is different from that which it currentiv utilizes and maintains. The rieht-of-way user shall, 41 however, include the cost to convert the data funished b� right -of-way user to a format currentl� 12 ao -acY 1 use by the local nnit of �ovemment as part of the permit application fee. These data conversion costs, 2 unlike other costs that make u�pernut fees, makbe included in the permit fee after the permit 3 application process is completed and shall be immediately due to the citv upon the ascertainment of the 4 cost and notice of the fee to the apnlicant. Anypermit for which such fee has not been paid within 30 5 davs of notice from the citv ma�upon written notice be revoked. The cittishall not issue any other 6 nermits to this registrant until such fee is paid• 7 8 At the rec�uest of the Director, a riaht-of-way user shall �rovide existing data on its existing facilities 9 within the public right-of-wav in the form maintained bv the user at the time the request was made if 10 available. 11 12 At the request of any registrant, any information requested by the department which qualifies as a 13 "trade-secret" under Chapter 94 0£ the St. Paul Administrative Code or Minn. Stat. § 13.37(b) shall be 14 treated as trade secret information as detailed therein. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 ,�,.�..� . . : . '. .. � .:� . : . . : . :� . . . :. : : : . : . .• :- . -. -,--:� : :� :.. :: - : ::• - ..- -: - ... : . *. :� : . : : . � . . : :. . . .. : :� . *. �: . : _. ... -:: . .. � :.•:. . :.. � :. :. . . : : . '. .. , :� .. • . : . - - . : : '. :� : .. . : .. :. .:.:• :� . � : . :. ... -.: : :.. �_ � :. ..= . . .. Sec. 116.10. Location of ecttrigment facilities. 32 (a) Undergrounding. - , New 33 construction and the installation of new equipmerrt facilities shall be �ene located underground or 34 contained within buildings or other structures in confornuty with � applicable codes except that the 35 Director may aPprove the above ground location and installation of the followin i� f they do not create 36 � unreasonable safety, maintenance, or aesthetic concerns or conflict with the current use of the ri¢ht- 37 of_wav. 38 39 (11 New poles, and new �ole lines under 660 feet in leneth which do not conflict with existing or 40 planned trees or other facilities. 41 13 oo-ar.P' � C� 8 9 10 11 12 13 �) New ancillary facilities and ap�urtenances to existing facilities, such as transformers, meters, iunction boxes, splice boxes. (3) New junction boxes for existin�underaround utility service to individual locations and homes. (4) New cell towers and related new facilities and appurtenances which have already received zonin¢ and any other necessar�pprovals. 5 The re�air or replacement of existin�bove ground facilities with similaz or smaller new facilities. (61 Any other new faciliues which the Director has deternnined that, due to expense, nature, or function cannot reasonably be placed under�round. 14 (b) �rs Locations. The director shall assign specific eerri�ars locations within the right-of-way, 15 or any particular segment thereof as may be necessary, for each type of ec�vignrenf facilitv that is or, 16 pursuant to current technology, the director expects will someday be located within the right-of-way. 17 All excavation, obstruction, or other permits issued by the department involving the instailation or 18 replacement of e�ment facilities shall designate the proper eartider location for the eqnipnxenf 19 facili . 20 21 Any registrant whose �is facilities are located in the right-of-way in a position at variance with 22 the earri�ars locations estabiished by the director shall, no later than at the time of the next 23 reconstruction or excavation of the azea where its equipme�is facilities aze located, move that 24 ee�ipnxenf facilitv to its assigned position within the right-of-way, unless this requirement is waived by 25 the directar for good cause shown, upon consideration of such factors as the remaining economic life of 26 the facilities, public safety, customer service needs and hardship to the registrant. 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 (c) Nuisance. One (1) yeaz after December 11, 1996, any equipment or facilities found in a right-of-way that has not been registered shall be deemed to be a nuisance. The city may exercise any remedies or rights it has at law or in equity, including, but not limited to, abating the nuisance pursuant to section 45.11 of the Legislative Code or taking possession of the equipment ox facilities and restoring the right-of-way to a useable condition. (d) Limitation of space. The director shall have the power to prohibit or limit the piacement of new or additional � facilities within the right-of-way if there is insufficient space to accommodate all of the requests of registrants or persons to occupy and use the right-of-way. In making such decisions, the director shall strive to the extent possible to accommodate all existing and potential users of the right-of-way, but shall be guided primarily by consideraUons of the public interest, the public's needs for the particulaz utiliry service, the condition of the right-of-way, the time of yeaz with respect to essential utilities, the protection of existing eqni�tenE facilities in the right-of-way, and future city plans for public improvements and development projects which have been deternrined to be in the public interest. 14 ao-ac�' Sec. ll6.11. ReIocation of eqmgment existi� facilities. 2 3 When working in the rights-of-way, permittees shall not interfere with the safety and convenience of 4 ordinary travel along and over the rights-of-way nor interfere with other uses to which the rights-of-way 5 may be put by the City of St. Paul. ���nst A riaht-of-way user shall prompdy and at its own expense, with due regazd for seasonal working conditions, permanently remove and relocate its eqnipme�facilities in the � � - : - : �::- -.� �:�- a�: - .- - :.�� � -� . 1 = . ••: • : � . . :� . ..: . . : :.: . •:. • . : : : : :� :. : : - � - - .• . .:. :. . . . . : . . • . : . . .. . . . • . : .� , . :� . : � : .. . . . � . . � ... - : a :. : : . � 15 merel�for convenience of the city, in connection with: (ll a�resent or future local eovernment use of 16 the right-of-wa�for a public �roject; (2) the public health or safety: or (31 the safety and convenience 17 of erdirrmy travel over the right-of-way. 18 19 Notwithstanding the foregoing, a person shall not have to remove or relocate its eqni�nnent facilities 20 from any right-of-way which has been vacated in favor of a nongovernmental entity unless and until the 21 reasonable costs thereof aze first paid to the person therefor. 22 23 Sec. 116.12. Preexcavation eqnipmex�f facilitv location. 24 25 In addition to complying with the requirements of Minn. Stat. §§ 216D.01-.09 ("one call excavation 26 notice system") before the start date of any right-of-way excavation, each registrant who has ec�ipnrenf 27 facilities located in the area to be excavated shall mark the horizontal and approximate vertical 2$ placement of all said eqrrigmentfacilities . 29 30 Any registrnnt neht-of-wav user whose ectnigme� facilitv is less than twenty (20) inches below a 31 concrete or asphalt surface shall notify and work closely with the excavation contractor in an effort to 32 establish the exact location of its ec�niPment facilitv and the best procedure for excavation. 33 34 35 36 37 38 39 40 41 Sec. ll6.13. Damage to other ec�ipmerrt facilities. When the department performs work in the right-of-way a�r�gtiblie-prajeet and finds it su ort, or move a .PP,.._ ___ order to rotect -P� . . �.- as�ess,the costs associated therewith wfiich';will be billed to that registrant ev rson and must be paid within thirty (30) days from the date of billing. 15 ao -ac�' 1 Each registr�nt ep rson shall be responsibie for the cost of repairing any equipment or facilities in the 2 right-of-way which it or its equipment damages. Each re�t ep rson shall be responsible for the cost 3 of repairing any damage to the equipment or facilities of another regish�ant ep rson caused during the 4 city's response to an emergency occasioned by that ' erson's equipment or facilities. 5 Sec. 116.14. Right-of-way vacation. 7 8 If the city vacates a right-of-way which contains the ee�cri�nnent facilities of a registrant rieht-of-way user 9 and if the right-of-wav vacation does not require the relocation of the ri hg t_of_ 10 wa u�ser's ec�ttilnrtent facilities, the city shall, except when it would not be in the public interest, reserve 11 ., to and for itself and all registrants rieht-of-waXusers having ee�nipment 12 facilities in the vacated right-of-way, the right to install, maintain and operate �facilities in 13 the vacated right-of-way and to enter upon sueh the right-of-way at any time fi�-the-purpase-af to 14 reconstructimg, inspecting, maintaining or repairirtg the facilities same. 15 16 17 18 19 20 21 22 23 2�} 25 26 27 If the citv vacates a rieht-of-way that contains the facilities of a ri�ht-of-wav user and the vacation requires the relocation of the rieht-of-way user's facilities, pavment of the relocation costs must be deternuned as follows:; �n� (a) if the vacation proceedings aze initiated by the rieht of way user, the r�ht of way user must pay the relocation costs; or (b) if the vacation proceedings aze initiated by the city for a public proiect, the ri�ht of wa,�} user must pay the relocation costs unless otherwise agreed to by the ciry and the right of way user; or (c) if the vacation proceedings are initiated bq for the purpose of benefiting a person arpersax�s other than the rieht of way user, � the benefited person erpersans must pay the relocation costs. Sec. 11615. Indemnification and liability. 28 By reason of the acceptance of a registration or the grant of a right-of-way pemut, the city does not 29 assume any liability (a) for injuries to persons, damage to property, or loss of service claims by parties 30 other than the registrant or the city, or (b) for claims or penalties of any sort resulUng from the 31 installation, presence, maintenance, ar operation of equipment or facilities by registrants or activities of 32 registrant. 33 34 35 36 37 38 39 40 41 By , By accepting a pemut under Chapters 116 and 135 a registrant pemvtfee is required, to defend, indemnify, and hold the city whole and harmless from all liabilitv or claims of liabilitv for bodilv injury or death to persons, or for property dama�e, in which the claim: (Al alle�es a ne�ligent or otherwise wroneful act or omission of the reQistrant or its em�lovee, agent or independent contractor in installing, maintainin , or repaizin� equipment or facilities; and alleges that the city is liable, without alle in� anv independent ne�ligent, or otherwise wrongful act or omission on the part of the city: or B) is based on the city's ne�l�i e¢ nt or otherwise wroneful act or omission in issuin� the pemut or in failin t�o properlv or adequately inspect or �� oo-ac� . -. . .. . ., ,.-. -.- ,. . :. . ., , ::, : :, . . : :, . . . . . :., : :, :. .:,, . .. . : :. . . :. . :. . . :, ,. : :, • : . . :� . : , . � .. . . : :. : :� .. : : . . . . . . � ,�. � 7 3tThe re isg trant further agrees that it will not bring, nor cause to be brought, any action, suit or other 8 proceeding claiming damages, or seeking any other relief against the city for any claim nor for any 9 award arising out of the presence, installation, maintenance or operation of its equipment or facilities, or 10 any activity undertaken in oraear a uu lilic right-of-way, whether or not the act or omission complained 11 of is authorized, allowed or prohibited by a right-of-way permit. 12 13 The foregoing does not indemnify the city for its own negligence except for losses or claims occasioned 14 bv the negli�ent or otherwise wrongful act or omission of the citv to the extent authorized in part (B) of 15 this section re¢ardina the issuance of a pernut or the inspection or enfarcement of compliance with the 16 pernut; or when othenvise provlded in an applicable franchise aereement. ' 17 , > 18 , 19 , , , . 20 21 This section is not, as to third parties, a waiver of any defense or immunity otherwise available to the 22 registrant, or to the city; and the registrant, in defending any action on behalf of the city, shall be entitled 23 to assert in any action every defense or immunity that the city couid assert in its own behalf. 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 Sec. 116.16. Puture uses. In placing any equipment ar facilities, or allowing it to be placed, in the right-of-way, the city is not liable for any damages caused thereby to any regis�'s eeiuipment facilities which is are already in place. No regish e�rson is entitled to rely on the provisions of Chapter 116 or 135, and no special dury is created as to any regish�xnt e�rson. Chapters 116 and 135 are enacted to protect the general health, welfaz'e and safety of the public at luge. Sec. 116.17. . Discontinued operations. A registrant who has determined to discontinue all or a portion of its operations in the city must either� {}�Pprovide information satisfactory to the director that the registranYs obligations for its ec�uiPnxent facilities in the right-of-way under this chapter and Chapter 135 have been lawfully assumed by another registrant; or the ci . Sec. 116.18 . Abandoned facilities. 17 no -a cP' 1 Any registrant who has abandoned facilities in any nght-of-wav shall remove it from that riQht-of-wav if 2 required in conjunction with other right-of-watirepair excavation or consuuction or as otherwise 3 required bv law, unless this requirement is waived bv the director. 4 C� 9 1� 11 12 13 14 15 16 �s .. . : :� . : . ... .� : . , . : ,.. �. . . . . . :. . : . . : � : . .. . :� inae� r.wt:in i:i:i:nn ni i iw I ��b � :� - :� - -i.• •" i _..� � �1� \\4�I���1�111�F11M•J�.l�rU1�l�JLL�A� ��PI�P������r1��O1�1���A71�A1�U\�l���l•f4�.�J�I�J�/�l�AU4� : . . . :� : :� : . . . .:� : : . : . •• . � :� :� . . : . . : : . :.:� :: : = .: .. : : . . . : : . ��..� . : : : :. .. . : : � : . :.: -:� .. .. : . :�. - .. . . :. . :� . � : :.. :. : : : : :. .• . . .� . .• 1 :� - . - . : .. : . . : . • : : 21 22 23 24 25 26 : . . : .. : : . . :. :. . : ; .... :. . . _ : •�: :. - : . � :. :.• : . Sec. 116.1$9. Reservation of regulatory and police powers. 27 The city by the granting of a right-of-way permit, or by registering a person under sections ll6.05 28 through 116.07, does not surrender or to any extent lose, waive, impair, or lessen the lawful powers 29 and rights, which it has now or may be hereafter vested in the city under the Constitution and statutes of 30 the State of Minnesota and under the Charter of the City of Saint Paul to regulate the use of the 31 right-of-way by the permittee; and the pernuttee by its acceptance of a right-of-way permit or of 32 registration under sections 116.05 through 116.07 must agree that all lawful powers and rights, 33 regulatory power, or police power, or otherwise as are or the same may be from time to time vested in 34 or reserved to the city, shall be in full force and effect and subject to the exercise thereof by the city at 35 any time. A permittee or registrant is deemed to acknowledge that its rights are subject to the regulatory 36 and police powers of the city to adopt and enforce general ordinances necessary to the safety and 37 welfare of the public and is deemed to agree to comply with a11 applicable general laws and ordinances 38 enacted by the city pursuant to such powers. 39 40 Any conflict between the provisions of a registration or of a right-of-way permit and any other present 41 or future lawful exercise of the city's regulatory or police powers shall be resolved in favor of the latter. �.'.� ao _a� 0 10 11 12 13 14 15 16 17 18 19 Sec. 116.i Severabiliry. If any section, subsection, sentence, clause, phrase, or portion of this chapter or Chapter 135 is for any reason held invalid or unconstitutional by any court or administrative agency of competent jurisdiction, such portion shall be deemed a sepazate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof. If a regulatory body or a court of competent jurisdiction should detemune by a final, nonappealable order that any pemut, right or registration issued under Chapters 116 and 135 or any portions of these chapters is illegal or unenforceable, then any such pezmit, right or registration granted or deemed to exist hereunder shall be considered as a revocable permit with a mutual right in either party to ternunate without cause upon giving sixty (60) days written notice to the other. The requirements and conditions of such a revocable pezmit shall be the same requirements and conditions as set forth in the pernut, right or registration, respectively, except for conditions relating to the term of the permit and the right of temunation. If a pernut, right or registration shall be considered a revocable pemut as provided herein, the pernuttee must acl:nowledge the authority of the city council to issue such revocable permit and the power to revoke it. Sec. 116.261. Board of water com�missioners; city. 20 Notwithstanding anything to the contrary in this Chapter ll6 or in Chapter 135 of the Legislative Code, 21 the board of water commissioners established pursuant to 1885 Minn. Laws, Ch. 110, may, at its 22 discretion, satisfy requirements for the posting of a bond by written undertaking which obligates said 23 board as a surety with respect to such requirements. The said boazd may also, at its discretion, satisfy 24 requirements for obtaining and maintaining insurance by written undertaking obligating said board to the 25 city as required in said chapters, provided, however, that such undertaking need not waive liability limits 26 or defenses available to it as a body corporate and politic organized and existing under the laws of 27 Minnesota. The city is excepted from the insurance and bonding requirements of these chapters. 28 29 30 31 32 33 34 35 3b 37 38 39 40 41 section 2. L,egislative Code Chapter 135, is hereby amended to read: Chapter 135. Right-of-Way Pemuts Sec. 135.01. Purpose. In order to provide for the heaith, safety and well-being of its populace as it uses the up blic rights-of-way, as well as to ensure the structural integrity of its rights-of-way, the city desires to minimize the number of obstructions and excavations taking place thereon. The purpose of this chapter is to regulate obstructions of and excavations in the rights-of-way by providing, among other things, for the issuance of pernvts granting authority to obstruct or excavate 19 po-a�P' � 10 il 12 13 14 15 16 therein and by providing for the subsequent restoration of the rights-of-way. The findings and purpose statement in Chapter 116 is hereby incorporated in and adopted as part of this chapter. Sec. 135A2. Definitions. The definitions found in section 116.02 of the St. Paul L,egislative Code (hereinafter, "I.egislative Code") apply to this chapter. 5ec. 135.03. Pernut requirement. Except as otherwise provided in the Legislative Code, no person may obstruct ar excavate any right-of-way without first having obtained � the appropriate right-of-wav permit from the department to do so. 17 (1) Excavation permit. An excavation pernut is r�ed to excavate 18 that part of the right-of-way described in such pernut and to hinder free and open passage over the 19 specified portion of the right-of-way by placing equipment described therein, to the extent and for the 20 duration specified therein. 21 22 (2) Obstruction pernut. An obstruction permit is r uired to hinder 23 free and open passage over the specified portion of right-of-way by placing equipment described 24 therein on the right-of-way for the durauon specified therein. 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 No person may excavate or obstruct the right-of-way beyond the date ar dates specified in the permit unless � such person {'rj makes a supplementary application for another right-of-way pernut before the expiraUon of the initial permit, and (ii) a new pernut or pernut extension is granted. Pernuts issued under this chapter shali be conspicuously displayed at all Umes at the indicated work site and sha11 be available for inspection by department inspectors and authorized city personnel. Sec. 135.04. Permit applications. Application for a permit is made to the director. Right-of-way pernut applications shall contain, and will be considered complete only upon compliance with, the requirements of the following provisions: (1) Registration with the departznent pursuant to Chapter 116. � ao-ace' 9 10 11 12 13 14 15 16 17 18 19 20 (2) Submission of a completed permit applicauon form, including all required attachments, and scaled drawings showing the location and azea of the proposed project and the location of all existing and proposed equigment facilities. (3) Payment of all money due to the city for: a. Prior obstructions or excavations; b. Any loss, damage, or expense suffered by the ciry as a result of applicanYs prior excavations or obstructions of the rights-of-way or any emergency actions taken by the ciry; c. ��5� Pernut fees and costs d. Any franchise fees in arreazs, due, owing and unpaid. � i � • ' ' - i � - ' - i i • � � i ' i ' : i i i - - i � � - � • • .. � • • �- � - .� � : ::: : :� . . Sec. 135.05. Issuance of pernut; conditions. 21 If the director deternunes that the applicant has satisfied Yhe requirements of Chapters 116 and 135, the � ���;, .� ,_, 22 director ma}�i� . I issue a permit. Such permits may, in the discretion of the director, be issued as 23 'barious location" pernuts, with or without conditions as provided in this section. 24 25 The director may impose reasonable conditions upon the issuance of the pernut and the performance of 26 the applicant thereunder in order to protect the public health, safety and welfare, to insure the structural 27 integrity of the right-of-way, to protect the property and safety of other users of the right-of-way, and 28 to minimize the disruption and inconvenience to the traveling public. Without limiting the foregoing, the 29 director, to protect the public health, safety and welfare, to insure the structural integrity of the 30 right-of-way, to protect the property and safety of other users of the right-of-way, and to minimize the 31 disruption and inconvenience to the traveling public, shall develop permit conditions that provide 32 reasonable assurance that uUlities and/or their contractors working in the right-of-way are competent 33 and qualified. These permit conditions shall include, but not be limited to, instruction in state and local 34 35 36 37 38 39 40 41 laws, including one-call, construction zone traffic safety, and construction standards, including restoration standards. Sec. 135.06. Permit fees. (a) Excavation permit fee. The excavation permit fee sha11 be in an amount sufficient to recover the following costs if a�licable: 21 oo-ar.8' 2 3 4 6 7 (1) The city mana�ement cost; arcd � The dismptive cost; . � • .. . :� : :� � : = : . . : : . :.. . � : � - .-• .. . . . . . : . :. . ; . � : ;: . . .. .: : � . :. : . . . : . 1 .. : . • . : . .: : : . . . : :� :� .... . . :. : : : : : . 13 14 15 16 17 18 19 20 2l (b) Obstruction pemut fee. The obstruction pernut fee shall be in an amount sufficient to recover the following costs if a�plicable: (1) The city mana ee ment cost; � � The disruptive cost; and (�3) The mapping data cost sqstem. 22 (c) Payment of permit fees. l�o excavation permit or obstruction pemut shall be issued without payment 23 of srreh excavation or obstruction permit fees, The 24 director may allow applicant siraH-agree to pay such fees within thirty (30) days of billing tkere€er. 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 (d) Computation of disruptive cost. The director shall determine the disruptive cost component of the fees for excavation and obstruction, and in doing so shall have the purpose of providing a financial incentive to pernuttees to minimize their obstruction and use of the right-of-way and to get in and get out of the right-of-way as quickly as possible. In aid of that purpose, the director shall use in the computation of the disruptive cost, to the extent practicable, economic and accounting principles relating to the quantification of the social costs resulting from street obstructions, including (1) losses to businesses and merchants which would not have occurred but for the obstructions, and (2) social costs to the users of the right-of-way resulting from traffic delays, diversions, disruption in services, missed or delayed appointments, and decline in quality of life. Fees may vary from one (1) location to another based on the size of the azea to be obstructed; tlae duration that the right-of-way or parts of it will be unavailable for public use and travel; the proximity of businesses and enterprises which rely in whole or in part on access by members of the public or the delivery of supplies or raw materials; the importance of the particular right-of-way as to the traveling public; the use of the particular right-of-way for emergency vehicles and the availability of altemate routes; the traffic volumes carried by the particular right-of-way; and the amount of vehiculaz, bicycle, and pedestrian traffic that is reasonably likely to be disrupted thereby. 22 00 -��8' (e) Use of permit fees. All obstruction and excavation pernut fees shall be used solely for city management, construction, maintenance and repair costs of the right-of-way. 4 (� �ransitian permit fees. pezmit fees for street usage, excavation and 5 obstrucrion =---`-`---- -- '�--'—'�-� '', '�"' pursuant to chapters 116 and 135, shall be proposed 6 by the director and established from time to time bv ciry council; 7 by resolution, . 8 9 10 11 12 13 14 15 16 17 18 19 (g) All permit fees shall be doubled during a probationary period. Sea 135.07. DelayPenaltv. In accordance with Minnesota Rule 7819.1000 sub�. 3, the Director shall impose a delay penaltv for unreasonable dela�s in riQht-of-way excavation, obstruction, patchin¢, or restoration b�permitee. The delav penaltv shall be proposed bv the Director and established from time to time bycitv council resolution. Sec. 135.0�8. Right-of-way �atching and restoration. 20 The work to be done under the permit, and the patching and restoration of the right-of-way as required 21 herein, must be completed within the dates specified in the pernut, increased by as many days as work 22 could not be done because of circumstances consUtuting force majeure or when work was prohibited 23 as unseasonal or unreasonable under this chapter. s�A: In addition to patchingits own work, 24 the pernuttee must restore the general area of the work, and the surrounding azeas, including the paving 25 and its foundaUons, to the same condition that existed before the commencement of the work�sf 26 - 27 - `��. 28 29 30 31 32 33 34 35 36 37 38 39 40 41 In its application for an excavation pernut, the pernuttee may choose either to have the city restore the right-of-way or to restore the right-of-way itself. (1) City restoration. If the city restores the right-of-way, i� �ernuttee shall pay the costs thereof within thirty (30) days of billing. If, - following such restaration, the �tek pavement settles due to permittee's improper backf'illang, the permittee shall pay to the city, within thirty (30) days of billing, . all costs associated with correcting the defective work. (2) Pernuttee restoration. If the permittee _ ��o restores the right-of-way itself, it shall at the Ume of application of an excavation permit: �• . �" � �• � n � G - - i •� � i - • � •- "• ' - i - i - - "i" 23 oo-aG8' . -- . . . - :.. . - - . - . �. �. . . . . �: ' i - • - i i - i . i � • � - ' � - � :� . - ..� - " i • • :r: �' ��- i � - •- - i �� - �i :� •' - - 'i 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 � : n d� - i• .:�' • " i � - : i - � �i •� i � "i� -�" � •-- : _ : , . :� . : : . .: . � . . ;. : . . : . . . The pernuttee shall perform tlre�zark excavation, backfillin�patchin� and restoration according to the standazds and with the materials specified by the director. The director shall have the authority to prescribe the manner and extent of the restoration, and may do so in written procedures of general application or on a case-by-case basis. The director in exercising this authority shall be guided by Minnesota Rules 7819.1100. . , � , , - - , - - D - - > VJIU��UIV ��t�l\'i'IYlti�� t�lbr� Methods of restoration may include, but are not limited to, patching, replacement of the right-of-way base, and milling and overlay of the entire area of the right-of-way affected by the wark. 26 - - , 27 - . - - , The permittee 28 shall correct defects in patching, or restoration performed by permittee or its agents. Pernuttee, upon 29 noUfication from the department, shall correct all restoration work to the extent necessary, using the 30 method required by the department. Said work shali be completed within five (5) working days of the 31 receipt of the notice from the department, not including days during which work cannot be done 32 because of circumstances constituting fozce majeure or days when work is prohibited as unseasonal or 33 unreasonable under seetieiri3�:}� Cha�ters ll6 and 135. 34 35 If the permittee fails to restore the right-of-way in the manner and to the condition required by the 36 department, or fails to satisfactorily and timely complete all re�xirs restorations required by the 37 department, the department at its option may do such work. In that event the pemuttee shall pay to the 38 city, within thirty (30) days of billing, the cost of restoring the right-of-way. 39 40 If the �emuttee elects not to restore the public ri�ht-of-way, the director shall impose a degradation fee. 41 However the right-of-wa� user shall remain re�onsible for patching, and the dearadation fee shail not 24 00 - �cr 2 4 5 include the cost to accom�lish these responsibilities. Sec. 135.0$9. Joint applications. Registrants may jointly make application for permits to excavate or obstruct the right-of-way at the same place and time. 7 8 Registrants who join in and during a scheduled obstruction or excavation performed by the department, 9 whether or not it is a joint application by two (2) or more registrants or a single application, are not 10 required to pay the obstruction and degradation portions of the pemut fee. 11 12 Registrants who apply for permits for the same obstruction or excavation, which is not performed by 13 the department, may share in the payment of the obstruction or excavation pemut fee. Registrants must 14 agree among themselves as to the portion each will pay and indicate the same on their applications. 15 16 Sea 135.6910. Supplementary applications. 17 18 A right-of-way pemut is valid only for the azea of the right-of-way specified in the pernut. No pernuttee 19 may perform any work outside the area specified in the pernut, except as provided herein. Any 20 pernuttee which detemnines that an area greater than that specified in the permit must be obstructed or 21 excavated must, before working in that greater area: (i) make application for a pernut extension and pay 22 any additional fees necessitated thereby, and (ii) be granted a new permit or permit extension. 23 24 A right-of-way pernut is valid only for the dates specified in the pernut. No pernuttee may begin its 25 work before the pernut start date or, except as provided herein, continue working after the end date. If 26 a pemuttee does not finish the work by the pern�it end date, it must make application for a new pernut 27 for the additional time it needs, and receive the new permit or an extension of the old permit before 28 working after the end date of the prevlous pernut. This supplementary application must be daixe 29 aDqroved before the permit end date. 30 31 32 33 34 35 36 37 38 39 40 41 Sec. 135.161. Other obligations. Obtaining a right-of-way permit does not relieve pernuttee of its duty to obtain all other necessary permits, licenses, and authority and to pay all fees required by any other city or other applicable ; , , rules, laws or regulations. A permittee shall comply with all requirements of local, sfate and federal laws, including Minn. Stat. §§ 216D.01-.09 ("one call excavation notice system"). A permittee shall perform all work in conformance with all applicable codes and established rules and regulations, and is responsible for all work done in the right-of-way pursuant to its permit, regazdless of � p a -a��' G� 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 who performs the work. Except in the case of an emergency, and with the approval of the director, no right-of-way obstruction or excavation may be performed when seasonally prohibited or when conditions are unreasonable for such work. A pemvttee shall not so obstruct a right-of-way that the natural free and clear passage of water through the gutters or ottaer waterways shall be interfered with. Private vehicles may not be parked within or adjacent to a pernut azea. The loading or unloading of trucks adjacent to a pernut azea is prohibited unless specifically authorized by the pemut. Sec. 1351�2. Denial of permit. (a) Mandatory denial. Except in the case of an emergency, no right-of-way pernut will be granted: (1) To any person required bq-��eetian-i3-GB5 to be registered who has not done so; (2) To any person required bY`�eetie�Kr.9& to file an annual report but has failed to do so; (3) For any next-year project not listed in the construction and major maintenance plan required under seetien chapter 116$8S"reportin� obli�ations"l; (4) For any project which requires the excavation of any portion of a right-of-way which was constructed or reconstructed within the preceding five (5) years; (5) To any person who has failed within the past three (3) years to comply, or is presently not in full compliance, with the requirements of Chapters 1 l6 and 135; (6) To any person as to whom there exists grounds for the revocation of a pernut under seefien chapter 135.� 39 (b) Permissive denial. The director may deny a pernut in order to protect the public health, safety and 40 welfaze, to prevent interference with the safety and convenience of ordinary travel over the 41 right-of-way, would cause a conflict or interfere with an exhibition, celebration, festival, or an o� 26 � . . : :� . - .: . . � : ., .:� .: ��:.: :. . : . . . . •:. . � : : : 00 -scr � 0 10 11 12 13 event, or when necessary to protect the right-of-way and its users. The director, in her or his discretion, may consider one (1) of more of the following factors: the extent to which right-of-way space where the permit is sought is available; the competing demands for the particulaz space in the right-of-way; the availability of other locations in the right-of-way or in other rights-of-way for the equi�nnerr� facilities of the permit appiicant; the applicability of ordinance or other regulations of the right-of-way that affect location of equipme� facilities in tl�e right-of-way; the degree of compliance of the applicant with the terms and conditions of its franchise, Chapters 116 and 135, and other applicable ordinances and regulations; the degree of disruption to surround'ang communities and businesses that will result from the use of that part of the right-of-way; the condition and age of the right-of-way, and whether and when it is scheduled for total or partial reconsuuction; and the balancing of the costs of disruption to the public and damage to the right-of-way, against the benefits to that part of the public served by the expansion into additional parts of the right-of-way. 14 (c) Discretionary issuance. Notwithstanding the provisions of sections 135.1�2(a)(3) and 15 135.142(a)(4), the director may issue a pernut in any case where the permit is necessary (a) to prevent 16 substantial economic hardship to a customer of the pemtit applicant; or (b) to allow such customer to 17 materially improve its utility service; or (c) to allow a new economic development project; and where 18 the pernut applicant did not have knowledge of the hazdship, the plans for improvement of service, or 19 the development project when said applicant was required to submit its list of next-yeaz projects. 20 21 22 23 24 25 26 27 28 (d) Pernuts for additional next-year projects. Notwithstanding the provisions of this chapter seetian �33cHH�jf3} the director may issue a pernut to a registrant who was allowed under seetien chapter ll6�${ej to submit an additional Next-yeaz project, such pemut to be subject to all other conditions and requirements of law, including such conditions as may be imposed under seetian cha�ter 135:65. Sec. G135'13) Appeal 29 A right-of-way user that: (1) has been denied registration; (21 has been denied a pernut; (3) has had a 30 permit revoked; or (4) believes that the fees im�osed are invalid, mayhave the denial, revocation, or 31 fee imposition reviewed, u�on written request, bv the citv council. A decision bv the citv council 32 affirming the denial, revocation, or fee imposition shall be in writing,and supported by written findinQs 33 establishins the reasonableness of the decision. 34 35 36 37 38 39 40 41 Sec. 135.1�4. Installation requirements. The excavation, backfilling, patching, restaration, and ali other work performed in the right-of-way shall be done in conformance with "The Standard Specifications for Street Openings" as promulgated by the director, Minn. Rules 7819.1100 and 7819.5000, and at a location as required by seetiair i�6-1� this code. 27 oc-ab� 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Sec. 135.135.Inspection. When the work under any permit hereunder is completed the pemuttee.as authorized by Minn. Rules Part 7819.1300 shall �q submit a completion certificate to the director at tt�e time the project is com�leted. The completion statement. sianed by a nerson desi¢nated by the ri¢ht-of-wav user as a responsible emplovee, shall show the com�letion date for the work performed, identify the installer and designer of record, and certify that the work was completed accordine to the requirements of the director Pernuttee shall make the work-site available to the department inspector and to all others as authorized by law for inspection at all reasonable times during the execution and upon completion of the work. At the time of inspection the department inspector may order the immediate cessation of any work which poses a serious threat to the life, health, safety or well-being of the public. The department inspector may issue an order to the registr�rct pernrittee for any work which does not conform to the applicable standards, conditions or codes. The order shall state that failure to conect the violation will be cause for revocation of the pernut. Within ten (10) days after issuance of the order, the registr�rf �ernuttee sha11 present proof to the director that the violation has been corrected. If such proof has not been presented within the required time, the director ma� revoke the permit�ursn�te : . Sea 135.1�6. Work done without a permit. (a) Emergency situaUons. Each registrant shail immediately notify the director or the director's designee of any event regazding its ec�cupmenf facilities which it considers to be an emergency. The registrant may proceed to take whatever actions aze necessary in order to respond to the emergency. Within two (2) business days after the occunence of the emergency, the registrant shall apply for the necessary pernuts, pay the fees associated therewith and fulfill the rest of the requirements necessary to bring itself into compliance with Chapters 116 and 135 for the actions it took in response to the emergency. 32 In the event that it becomes awaze of an emergency regarding a registrant's equipment ar facilities, the 33 department may attempt to contact the local representative of each registrant affected, or potentially 34 affected, by the emergency. In any event, the department may take whatever action it deems necessary 35 in order to respond to the emergency, the cost of which shall be bome by the registrant whose 36 equipment or facilities occasioned the emergency. 37 38 39 40 41 (b) Nonemergency situations. Except in the case of an emergency, any person who, without first having obtained the necessary permit, obstructs or excavates a right-of-way must subsequently obtain a permit, pay double the normal fee for said pernrit, pay double all the other fees required by the L.egislative Code, deposit with the departrnent the fees necessary to correct any damage to the m ao - a6P' 2 4 5 6 7 right-of-way and comply with all of the requirements of Chapters 116 and 135. Sec. 135.157. Supplementary notification. If the obstzuction or excavation of the right-of-way begins later or ends sooner than the date given on the pernut, permittee shall notify the department of the accurate information as soon as this information is known. 9 If the obstruction of a right-of-way is of a shorter duration than that estimated on the permit application, 10 the department will, upon request, refund or credit to the permittee a proportionate amount of the 11 permit fee. 12 13 Sec. 135.1b8. Revocauon of pernuts. 14 15 Registrants hold pernuts issued pursuant to the I,egislative Code as a privilege and not as a right. The 16 city reserves its right, as provided herein, to revoke any right-of-way permit, without fee refund, in the 17 event of a substantial breach of the terms and conditions of any statute, ordinance, rule or regulation, or 18 any condition of the pemut. A substantial breach by permittee shall include, but shall not be limited to, 19 the following: 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 (1) The violation of any material provision of the right-of-way pernut; (2) An evasion or attempt to evade any material provision of the right-of-way pernut, or the perpetration or attempt to perpetrate any fraud or deceit upon the city or its citizens; (3) Any material misrepresentation of fact in the application for a right-of-way pernrit; (4) The failure to maintain the required bonds and/or insurance; (5) The failure to complete the work in a timely manner; or (6) The failure to correct a condition indicated on an order issued pursuant to this chapter seeti�n i3�3; (7) Hiring illegal aliens; (8) Failing to report damage to other utilities; (9) Failing to report injuries. If the director deternunes that the permittee has committed a substantial breach of a term or condition ►�S �a -acY 1 of any statute, ordinance, rule, regulation or any condition of the permit, the director shall make a 2 written demand upon the pertnittee to remedy such violation. The demand shall state that continued 3 violations may be cause for revocation of the permit. Further a substantial breactL as stated above, will 4 allow the director to place additional or revised conditions on the permit. 10 11 12 13 14 15 16 17 18 19 20 21 Within twenty-four (24) hours of receiving notification of the breach, permittee shall contact the director with a plan, acceptable to the director, for its correction. Pernuttee's failure to so contact the director, or the pernuttee's failure to submit an acceptable plan, or permi[tee's failure to reasonably implement the ap�roved Dlan, shall be cause for immediate revocation of the permit. Further, pernuttee s failure to so contact the director, or permittee s failure to submit an acceptable plan, or pemuttee's failure to implement the approved plan, shall automatically place the permittee on probation for one (1) full year. From time to time, the director may establish a list of conditions of the permit which, if breached, will automatically place the permittee on probation for one (1) full yeaz, such as, but not limited to, working out of the allotted time period, working on right-of-way grossly outside of the permit, failing to report utility hits, failing to report injuries or hiring illega] aliens. If a pernuttee, while on probation, commits a breach as outlined above, pernuttee's pertnit will automatically be revoked and permittee will not be allowed further permits for one (1) full year, except for emergency repairs. 22 If a pernut is revoked, the pernuttee shall also reimburse the city for the city's reasonable costs, 23 including restoration costs and the costs of collection and reasonable attorneys' fees incurred in 24 connection with such revocation. 25 26 Sec. 135.1�9. Nonexclusive remedy. 27 28 The remedies provided in this chapter and in Chapter 116 and other chapters in the Legislative Code 29 aze not exclusive or in lieu of other rights and remedies that the city may have at law or in equity. The 30 city is hereby authorized to seek legal and equitable relief for actual or threatened injury to the public 31 rights-of-way, including damages to the rights-of-way, whether or not caused by a violation of any of 32 the provisions of this chapter or other provisions of the L.egislative Code. 33 34 35 36 30 � � ORiGINAL 1 2 3 4 5 6 7 8 9 10 li 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00 -xr Section 3 This ordinance is effective 30 days after its passage, approval and publication. a fl ���II.��:l9► Adoption Certified by Council Secretary By: Approved by May� nate By: /_// Requested by Department of: ��_ Public Works � � By: � Form Approved by Ci y At Y sy: '�_ a� � ' � 3. � . oc� �.�-- Approved bY Mayor for Submission to Council By: l/' A�''^� 'J c��1'Q 33° 3r Adopted by Council: Date �-��� `_� �� v DEPARTMENT/OFFICE/COUNCIL DATE I ITIA / 102715 PublicWorksDepartment 2 u o GREEN SHEE� CANTACT PEflSON & PF10NE � INITIAUDATE �DEPAHiMENT ECTOR ❑4 CRYCIXINCIL homasKuhfetd 266-6111 Nu ���A-R�°�'� ❑cmc�wK M BE ON COUNqLA BY�NQ;� (� p pOUi1NG I� g�prE7 DIREGTOR ❑ FlN. & MGT. SERVICES Dlfl. � o�,��,��,��� ❑ AL�OFSIGWITUHEPAGES 1 (GLIPALLLOCAli0N5FOR51GNA7LflE) uASSIX:IATE uDEPT.ACCAUNfANT ON REQUFS7ED pproval of the attached Righi-of-Way management ordinance. aECOntMENDAnOnS: appmve (A) or Rejeu (a) pEpgpNAL SERVICE CONiRACTS MUS7 ANSWER THE FOLLOWING QUESTIONS: PLANNINGCOMMISSION _GVILSERVICECOMMISSION 1. HasthispersoNfirtneverworkedunderacontrac[forthisdepartment? CIBCAMMmEE YES NO — — 2. Has this persoNfirtn ever been a ciry employee? A sraFF _ YES NO DIS7RiCr CoUNa� 3. Does this person/firtn possess a sWll �oi nortnally possessed by any curtent ciry employee? — — YES NO SUPPOFTS WM�CH COUNCIL OBIECTIVE? Explain all yes answers on separate sheet and aifach to gree� sheet INfTIAl1NG PROBLEM, ISSUE, OPPORTUNITY (WHO, WHAT, WHEN, WHERE, WHh: State legislation and Public Utility Commission rules adopted since current chapters 116 and 135 require changes in our legislative code to be compatible. The proposed changes were developed together with MinReapolis and the League of Minnesota Cities. ADVANrAGESIFAPPROVED: Chapters 116 and 135 of the Legislative Code will be more legaliy correct. In addition, undergrounding has been refined. � � y � //a. /G DISADVAMAGES IF APPROVED. More above ground facilities will be constructed. ��:,=�;; �� y ,•e, �;����.��� ���..> �ir�i� �} i L�1'�.��'ii iY✓� '�sv'� - y .i " . :'1 p 5' 1.G �Yi.<� at T C : § .i� � �a N `:�v' : i 4 1 � ♦ � DtSADVAMAGES IF NOT APPfipVED Chapters 116 and 135 of the Legislative Code will not reflect recent State legislation and Public Utilities Commission rules. Telecommunications and Cable companies will have problems upgrading their service. �av�h � sSa��:^,.�4 ��?P�¢�� ���� � 6 ZQ�O OTALAMOUN70FTRANSACTION$ NotApplicable COST/REVENUEBUDGE7ED(C�RCLEON� YES No FUNDING SOUFiCE ACINfTY NUMBER FINANCIAI_ INFOFMATION: (EXPLAIN) OR1GiNAL Council File # o� — 3Gp' Ordinance # Green Sheet # 0 2 � F S ORDINANCE CITY OF SAINT PAUL, MINNESOTA Presented $y Referred To _ Date 33 An ordinance amending I,egislative Code Chapters 116 and 1 provide for regulation of the public right-of-way. THE COUNCIL OF THE CITY OF section 1 Legislative Code Chapter 116, i� Chapter 116. Right-of-Way Administration Sec. 116.01. Findings and purpose. the Saint Paul L.egislative Code to ��1� � • � • 1� amended to read: In order to provide for the health, s ety and weil-being of its citizens, as well as to insure the structural integrity of ats streets and the use f the ublic rights-of-way, the city strives to keep its rights-of-way in a state of good repair and free f m unnecessary encumbrances. Although the general population beazs the fanancial burden for the u eep of the rights-of-way, a primary cause for the early and excessive deterioration of its rights-of ay is their frequent excavation by persons whose equipment is located therein. Right-of-way obstructi n is a source of loss of business to merchants and others whose places of business aze located eazby and a cause of frustration for the general population which must avoid these obstruc6ons or ch ge travel or shopping plans because of them. Persons whose equipment or facilities are is located wi n the right-of-way are the primary cause of these frequent obstructions. The city reco izes that it holds the rights-of-way within its geographical boundaries as an asset in trust for its citize s. The city and other public enUties have invested millions of dollazs in pubiic funds to build and maint n the right-of-way. It also recognizes that some persons, by placing their equipment or facilities n the right-of-way and chazging the citizens of the city for goods and services delivered thereb , are using this property held far the public good. Although such services aze often necessary or , 1 00 • ��r convenient for the citizens, such persons receive revenue and/or profit through their use of public property. The city finds that to protect the public health, safety, and welfare, and to protect the public right-of-way and its current use, it is necessary for the city to detercnine the competence and qualifications of the persons who perform the actual excavation of the right-of-way, installauon of facilities, and restoration of the right-of-way, at the request of, and on behalf those persons who wish to place facilities in the public right-of-way. The lack of competence and qu ification of petsons who work in the right-of-way has caused substantial public inconvenience, sub antial safety risks for the public, and has unduly restricted public use of the right-of-way. In response to the foregoing facts the city hereby enacts new Legislative Code relating to right-of-way permits and admini necessary revisions to other Code provisions and--an-erdinane s 116 and 135 of the St. Paul together with an ordinance making €ranehise: These ordinances impose reasonable regulations o the placement and maintenance of equipment or facilities currenfly within its rights-of-way or o be placed therein at some future time. Under these ordinances, persons disturbing and obstructi g the rights-of-way will beaz a fair share of the financial responsibility for their integrity. Finally, ese ordinances provide for recovery of out-of-pocket and projected costs from persons usin the public rights-of-way. 2 bo•�t.Y � UI��LLaIl9�IGV �Yl.�a�41t�A7RUI��I.Cls��r��t�l��w1� �lU U Ol �S r U lU � lU � � Al�l � l �1 �l � \\�A1�1 \'l�. � 1 � ' • • • � � �� � � � ��� • � � • � • • �� � � • N • � • %11�11R�1�lJ�IGV�SlY �� The findings in the purpose statement in Chapter 135 aze hereby incorporated in this chapter. � Sec. ll6.02. Aefinitions. adopted as part of The following definitions apply in both Chapters I 16 and 135 of the S nt Paul I,egislative Code (hereafter, "Chapters 116 and 135" or "these ordinances"). Referen s hereafter to "sections" aze, unless otherwise specified, references to sections in the Saint Pau gislative Code. Defined terms remain defined terms whether or not capitalized. (42) Applicant means any person requesting to excavate or obstruct a right-of-way. (�3) City means the City of St. Paul, (3� City mana ement cost means actual costs incurred by the city ms�perfarm all of the other tasks required by Chapters 116 � � oo-aLr under Minnesota Statutes, section 15.73, subdivision 3; d) letter of credit, in a form acceptable to the Director: el self-insurance, in a form acceptabie to the Director; and fl a blanket bond for �rojects wittun the City,_or other fornns of construction bond, for a time snecified and in a form acce�tabie to the Director. be required if the excavation or disturbance did not occur. Minnesota Rules 7819.9900 to 7819.9950. which equals the deeradation cost. obstruction, patchine. or restoration as established bv pernut. (� 10) Department means the department of public works � the ciry. (511) Department inspector means any person aut related to the provisions of Chapters 116 and 135. by the director to cany out inspections (612) D'uector means the director of the director's designee. of public works of the city, or her-arhis the (�13) Disruptive cost is the enal im sed as the result of mei�ants-and the adverse impact on ity citizens and others who are required to alter travel routes and times resulting from right-of-way o structions. ($14) Downtown business dist ' t means that portion of the City of Saint Paul lying within and bounded by the following streets: Beg' ning at the intersection of Shepard Road with Chestnut Street, Chestnut Street to Interstate Freewa SE, Interstate Freeway 35E to Interstate Freeway 94, Tnterstate Freeway 94 to Lafayette ridge, Lafayette Bridge to where the bridge crosses over W arner Road, Warner Road to Shep d Road, Shepazd Road to Chestnut Street. (H15) Emergency eans a condition that (a) poses a clear and immediate danger to life or health, or of a significant los of property; or (b) requires immediate repair or replacement in order to restore service to a customer � cc-a�Y (19G� Equipment means any tangible asset used to instail, repair, or maintain facilities in an� hg t-of- wav or which obstructs any rieht-of-wak -- , a. : . . (1�7) Excavate or Excavation means to dig into or in any way remove or physically dist,�irb or penetrate any part of a right-of-way. � (1�8) Excavation permit means the permit which, pursuant to Chapters 116 and 13fi, must be obtained before a person may excavate a right-of-way. An Excavation emut allows the h�ider to excavate that part of the right-of-wav described in such pernut. (13� Excavation pernut fee means money paid to the ciry by an applicant t cover the costs as provided in seetian Chapter 135.9fr. y�14iJ�Yr\• (i521) Local representative means the person or persons or designee of such person or persons, authorized by a registrant to accept service and to mak decisions for that registrant regarding all matters within the scope of Chapters 116 and 135. 22 Minnesota Rules means Minnesota Rules ublished b the Revisor of Statutes as the exis on June 1 1999 whether or not the are curr tl in force. (�6� Obstruct means to place any tang' le object in a right-of-way so as to hinder free and open passage over that or any part of the rig -of-way. (i�� Obstruction permit mean�e pernut which, pursuant to Chaptexs 116 and 135, must be obtained before a person may o truct a right-of-way. (i$�5) Obstruction pernut as provided in seetiert � � means money paid to the city by a regish� ermitee to cover the costs 5 00 -a�.Y (27) Pavement means anv type of improved surface that is within the public ri�ht-of-wav and that is paved or otherwise constructed with bituminous concrete, aggre at� e_or gravel. (�9� Permittee means any person to whom a pernut to excavate or obstruct a b anted by the city under Chapter ll 6 or 135. {�,829) Person means lmm�•�•.intn���r•wlu�:inn w�ii�tr.�u.ai:umnunn�au:r.n.ii.nr:uv��avuaUO�.�r Bl a social or charitable organization; and has been (�Y� Probation means the status of a person that has t complied with the conditions of Chapters 116 and 135. (z''�31) ProbaUonary period means one (1) yeaz f m the date that a person has been notified in writing that they have been put on probation. (z�332) Registrant means any person who ) has or seeks to have its equipment or facilities located in any right-of-way, or (2) in any way occ ies or uses, or seeks to occupy or use, the right-of-way or any equipment or facilities located in e right-of-way. (�33) Registration fee means mqfiey paid to the city bq-a-registra�rt to cover costs associated with reeistration. ` (36� Restore or estoration means the process by which an excavated erebshneted right-of-way and sunoundin ea, includingpavement and foundation. is returned to a-ee�ditien-wltiek spassibie the same condition that existed before the excavation. (z�35) R%�toration €ee cost means an amount of money paid to the city by a pernuttee to cover the cost � oo-a�P' of restoration. �Q�)�\�lJ�II�A���P�/lN���l�U�11HJ��b1�1�l�Jr��L�Ip1UI�Pl�Nl�l��PI �51�•������1�1�1��'L�IwT���1�� ��t�lU�pl�l AL IA �� � l�l � G � t �� ���%� \'I IR�1 � N1 l� (�936) Right-of-way or Public Right-of-way means the :� :� service. (3937) Right-of-way pernut means either the excavation rmit or the obstruction pernut, or both, depending on the context, required by Chapters 116 an 35. (3�i� Service or utility service incl Minn. Stat. § 216B.02, subds. 4 and svstem as defined prev 39A:$3-{�99�j 238; and those services provided by a public utility as defined in �; ( , , - > services of a telecommunications right-of-way ;(iii) i�e services of a cable communications in Minn. Stat. § ����.�.,.f�.A..� 1 U IRd�I �� IR�A7 �l lU•I N 1�.1�1•l l� 1 wL � Pl l (3�40} Suppleme tary application means an application made to excavate or obstruct more of the right-of-way allowed in, or to extend, an obstruction or excavation pernut that had already been issued. 7 oo-a� vu � � � n�� o�.� una � s.xn va.�� �.� � n w n+� wiu r. oii� an � w � u o n aw � r. win ao �� wt.� ab � m.i.i: u u �i u �n n w uii��iiinisn�:�nw�ii�iunru�R:iur.�n[nui��linn�nbu.�ti Sea 116.03. Administration. The director of the department of public works shall be the principal ttt cfty official responsible for the administration of the rights-of-way, right-of-way permits, and th � inances related thereto. The director may delegate any or all of the duties hereunder. Sec. 116.04. Utility coordination committee. There is hereby created a utility coordinaUon committe . This committee shall be voluntary and advisory to the director. It s� mav be composed of any regi rants that wish to assist the city in obtaining information and by making reco endations regazding ways to take greater responsibility for the right-of-way, and to impro e the process of performing construction work therein. by the director to any registrant making a Sec. 116.05. Registration and ri Notice of the meetings of such committee shall be given n request to the director to be so notified. occupancy. Each person who occupies, uses, o seeks to occupy or use, the right-of-way or any equipment or facilities located in the right-of- ay, or who has, or seeks to have, equipment or facilities located in any right-of-way shall register wit he department. Registration will consist of providing application information te as require by the director, , 0 oo-a�� . : . :, .. . :, . . .:. . . . . No person may construct, install, repair, remove, relocate, or perform any other work on, or equipment or facilitv or any part thereof located in any right-of-way without fust being regi the department. � .�.,, .............. .�, .....� , ......., Nothing herein or in Chapter 135 shall be construed to repeal or amend the ordinance pemutting persons to plant or maintain boulevard plantings or gz right-of-way between their property and the street curb. Persons planting o plantings or gardens shall not be deemed to use or occupy the right-of-w , to obtain any pernuts or satisfy any other requirements for planting or ain plantings or gazdens under this chapter or Chapter 135. Sec. 116.06. , . Reserved. Il�1�P�LL'�l��bl��IAfU�r 5` Sec. 116.07 The information. with pr isions of a ciry r ens or in the azea of maintaining boulevard and shall not be required aininQ such boulevard provided to the department at the time of registration shall include, but not be limited to: G] 00 - a c.�- 1 {1} Each registrant's name, Gopher State One-Call registration certificate number, address and e- 2 address if applicable, and telephone and facsimile numbers. 3 4 (2) The name, address and e-mail address, if applicabie, and telephone and facsimile numb rs of a lceal 5 representative. The local representative shall be available at all times. Current informatio, regarding 6 7 8 9 10 11 12 how to contact the local representative in an emergency shall be provided at the ume of (3) A certificate of insurance or self-insurance: a. Verifying that an insurance policy has been issued to the registrant by an to do business in the State of Minnesota, or a form of self insurance accent; 13 b. Verifying that the registrant is insured against claims for personal injury, 14 claims for property damage arising out of the (i) use and occupancy of the 15 registrant, its officers, agents, employees and pernuttees; and (ii) placem 1 16 equipment in the right-of-way by the registrant, its officers, agents, e oy� 17 but not limited to, protection against liability arising from complet opera� 18 equipment and collapse of property; 19 company licensed death, as well as ght-of-way by the and use of facilities and es and pernuttees, including, ons, damage of underground 20 c. Naming the city as an additional insured as to whom the cc�erages required herein are in force and 21 applicable and for whom defense will be provided as to all uch coverages; 22 23 d. Requiring that the director be notified thirty (30) d s in advance of cancellation of the policy;� or 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 material modification of a coverage term; e. Indicating comprehensive liability and umbrella coverage in amounts es management in amounts sufficient to Chapters 116 and 135. e, utomobile liability coverage, workers compensation, by the director of the office of risk and employee benefit the city and carry out the purposes and policies of (4) Tf the person is a corporation, a c y of the certificate required to be filed under Minn. Stat. § 300.06 as recorded and certified to y the secretary of state. (5) A copy of the person's orde antin a certificate of authority from the Minnesota Public UUlities Commission, where the pers is lawfully required to have such certificate from said commission or The regisuant �lfall keep all of the information listed above current at all times by providing to the 10 oo-a�r department information of changes within fifteen (15) days following the date on which the registrant knowledge of any change. � Sec. 116.08. Reporting obligations. (a) 6perati�nr Each registrant shall, at the time of registration and by December 1 of construction and major maintenance plan with the department. Such plan shall be sub format designated by the director and shall contain the information deternuned by the necessary to facilitate the coordination and reduction in the frequency of excavations; of rights-of-way. � The plan shall include, but not be limited to, the following information: � eaz, file a d using a xtor to be obstructions (1) The speeifi�locations and the estimated beginning and ending dates of projects to be commenced during the next calendar yeaz (in tlus section, a"next-yeaz pro� t"); and (2) To the extent known, the tentative locations and estimated projects contemplated for the froe-(Sj four yeazs following the "five-year project"). The term "project" in this section shall include both and ending dates for all dar yeaz (in this section, a pro}ects and five-year projects. By 3anuary 1 of each year, the department will have av lable for inspection in its offices a composite list of all projects of which it has been informed in t annual plans. All registrants are responsible for keeping themselves apprised of the current status this list. Thereafter, by February 1, each registrant ma change any project in its list of next-year projects, and must notify the director and all other regis ts of all such changes in said list. Notwithstanding the foregoing, a registrant may at any time j'n in a next-year project of another registrant that was listed by the other registrant. Notwithstanding the foregoing, the director may, for good cause 11 oo-a�� shown, allow a registrant to submit additional next-yeaz projects. Good cause includes, but is not limited to, the criteria set forth in section 135.1�2(c) concerning the discretionary issuance of pe � ts. Sec. 116.09. Mapping data. :� . . . • : : � : ..� . : � . . :� :�.. :. �2.i• � nu ��a.ir.n �a.i au�n i:f �iu� u n r.ui.»iv� �n.�� ivuauo•: r.riab r" n ��. u�w ui:i n�•: m��u�au•. �� n1b �i�i.i�s iuiw�� �. :w -� �� :� i �- i' - i :� - i :�• - :�• - - r:i :� •' • �• i V Al�.i���•���l�l�ln�i��ll�tlnll Within six (6) months after the acquisition, installation, or construction of or any relocation, abandonment, or disuse of existing ecgripmenf facilities, supplement the mapping $ata information required herein. � permit application which contains the followina informafion: The twe and size of the utilitv facilities. man• subdivision 3. ional ecluipmer� facilities registrant shall 12 .. permits to this registrant until such fee is paid. available. At the reguest of any registrant, any information requested by the depa� "trade-secret" under Chapter 94 of the St. Paul Administrative Code or treated as trade secret information as detailed therein. i ��.�:,:...�.�..���:s��,.«:�.��.� �. Sea 116.10. Location of (a) Undergrounding. �3rc�es construction and the instal] contained within buildings of-wa . which qualifies as a Stat. § 1337@) shall be - ,New of new eqcri�nnent facilities shall be daae located underground or aer structures in confomuty with � applicable codes except that the 13 2 CI 0 8 9 10 11 12 13 14 junction boxes, spiice boxes. and anv other necessary approvals. cannot reasonably be placed under2round. 15 (b) Earridars L.ocations. The director shall assign specific 16 or any particular segment thereof as may be necessary, for 17 pursuant to cunent technology, the director expects will sc 18 All excavation, obstruction, or other pernuts issued by th 19 zeplacement of eqnipmen4 facilities shall designate the c 20 faciiitv. 21 22 Any registrant whose equipme�is facilit 23 the eoxriders locations established by the 24 reconstruction or excavation of the area � 25 ec�igment facilitv to its assigned positio� 26 the director for good cause shown, upo� 27 the facilities, public safety, customer �n 28 � �locations witlun the right-of-way, h/type of ec�ripment facilit that is or, day be located within the right-of-way. �artment involving the installation or eerricler location for the �meirt e� cated in the right-of-way in a position at variance with �or shall, no later than at the time of the next its aqnipmentis facilities are located, move that in the right-of-way, unless this requirement is waived by of such factors as the remaining economic life of needs and hardship to the registrant. 29 (c) Nuisance. One (1) yeaz after D cember 11, 1996, any equipment or facilities found in a 30 right-of-way that has not been r istered shall be deemed to be a nuisance. The city may exercise any 31 remedies or rights it has at la or in equity, including, but not limited to, abating the nuisance pursuant to 32 section 45.11 of the Legisla ve Code or taking possession of the equipment or facilities and restoring 33 the right-of-way to a use e condition. 34 35 36 37 38 39 40 41 (d) Limitation of spa . The director shall have the power to prohibit or limit the placement of new or additional facilities within the right-of-way if there is insufficient space to accommodate all of the requests of r istrants or persons to occupy and use the right-of-way. In making such decisions, the director shall 've to the extent possible to accommodate all existing and potential users of the right-of-wa , but shall be guided primarily by considerations of the public interest, the public's needs for the parti az utility service, Che condition of the right-of-way, the time of yeaz with respect to essenfial utiliti , the protection of existing e�rer� facilities in the right-of-way, and futwe city plans for public 14 �o -a improvements and development projects wtuch have been determined to be in the public Sec. ll611. Relocation of e�i�nent existin�facilities. When working in the rights-of-way, permittees shall not interfere with the safety and ordinary travel along and over the rights-of-way nor interfere with other uses to whic may be put by the City of St. Paul. � �e�persasmt�sf. A right-of-wa�user shall prompfly and at its own expense, seasonal working conditions, permanently remove and relocate its equipmen right-of-way ' , when it is necessarv to prevent interference enience of rights-of-way regard for lities in the and not safety and convenience of ard'nrxry travel over the right-of-way. Notwithstanding the foregoing, a person shall not from any right-of-way which has been vacated in reasonable costs thereof aze first paid to the perso Sea ll6.12. Preexcavation eqnigmerrt Po remove or relocate its eq�ipment facilities of a nongovernmental entity unless and untii the In addition to compiying with the require�tfents of Minn. Stat. §§ 216D.01-.09 ('bne call excavation notice system") before the start date of y right-of-way excavation, each registrant who has equipmerce facilities located in the area to be exca ated shall mark the horizontal and approximate vertical placement of a11 said ecrnipmea�faci Ues . Any registr�nf �ht-of-wa} concrete or asphalt surface establish the exact location �hose ec�nipnrent facili is less than twenty (20) inches below a notify and work closely with the excavation contractor in an effort to , equipmerrt facili and the best procedure for excavation. Sec. 116.13. Damage to er r.e�i�nnent facilities. When the departmen performs wark in the right-of-way an-xp�pr�eeE and finds it necessary to maintain, support, r move a �erson's facilitv in order to protect it, the costs associated there rth will be billed to that registrxr� ep rson and must be paid within thirty (30) days from the date of bil ' e. 15 Oo—ac.d' 1 Each registram ep rson shall be responsible for the cost of repairing any equipment or facilities in 2 right-of-way which it or its equipment damages. Each registr�rit erson shall be responsible for t} 3 of repauing any damage to the equipment or facilities of another registsant ep rson caused dunn 4 city's response to an emergency cecasioned by that ' erson's equipment or facilitie� C'7 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Sec. 116.14. Right-of-way vacation. If the city vacates a right-of-way which contains the ee�vipatent facilities of a� and if the ri�ht-of-way vacation does not require the reiocation of � way user's et�nipme� facilities, the ciry shall, exce�t when it would not be in ., to and for itself and all registrants ri�ht-of-way us facilities in ihe vacated right-of-way, the right to install, maintain and operate the vacated right-of-way and to enter upon stzeh the right-of-way at any time � reconstructing, inspectirig, maintaini� or repairnrg the facilities same. � � the ri hg t-of- interest reserve �� aent in rese-ef to the vacation requires the relocation of the ri ht- -wa user's facilities a ment o the relocation costs must be determined as follows:; �nd (a) if the v cation proceedings are initiated by the right of wav user the ' ee right of way user must pay the relocation costs; or (b) if the vacation proceedings are initiated y the city for a public proiect, the ri�ht of way user must pay the reloca �on costs unless otherwise agreed to by the city and the right of way user; or (c if the vacation proceedings aze initiated bp for the �nr�ose of benefitine a person arpersons other an the right of way user, °-- - sac�r oincr the benefited person er perseirs mus ay the relocation costs. Sec. 116.15. Indemnification and laability. 28 By reason of the acceptance of a registratio or the grant of a right-of-way pernut, khe ciry dces not 29 assume any liability (a) for injuries to per ns, damage to property, or loss of service claims by parties 30 other than the registrant or the ciry, or for claims or penalties of any sort resulting from the 31 installation, presence, maintenance, o operation of equipment or facilities by registrants or activides of 32 registrants. 33 34 , By accepting a permit under Chapters 116 35 and 135 a r�istrant is required, to defend, indemnify, and hold the city whole and harcnless 36 from all 37 which tt 38 emolove 39 facilirie! 40 wronefu �� oa-� `8' 1 2 3 4 5 C� 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 compliance with a term, condition, or purpose of the pernut eranted to the re �s� trant• IfThe re �sgi trant further agrees that it wiil not bring, nor cause to be brought, any ac�%�on, suit or other proceeding claiming damages, or seeking any other relief against the ciry for any aim nor for any award arising out of the presence, installation, maintenance or operation of its e ipment or facilities, or any activity undertaken in or neaz a right-of-way, whether or not the act or o' sion complained of is authorized, allowed or protribited by a right-of-way permit. The foregoing does not indemnify the city for its own negligence excep for losses or claims occasioned 21 This seclion is not, as to third parties, a waiver of 22 registrant, or to the city; and the registrant, in def 23 to assert in any action every defense or immun' 24 25 Sec. 116.16. Future uses. 26 27 In placing any equipment or f� 28 liable for any damages caused 29 place. No registra�t eq rson is i 30 duty is created as to any 31 health, welfare and safety tt 32 33 Sec. 116.17. 34 35 A registrant 3b Discontinued operations. determined to discontinue all or a�ortion of its operations in the city must eitiierr defense or immunity otherwise available to the ding any action on behalf of the city, shall be entitled that the city could assert in its own behalf. lih s, or ailowing it to be placed, in the right-of-way, the city is not eby to any registrant's � facilities which is are already in itled to rely on the provisions of Chapter ll6 or 135, and no special �t e�rson. Chapters ll 6 and 135 aze enacted to protect the general public at lazge. 17 oo- a 6�' f}�Pprovide information satisfactory to the director that the registranYs obligations for its eq facilities in the right-of-way under this chapter and Chapter 135 have been lawfuily assumed regisuant; or the ci . Sec. 116.18 . Abandoned faciliries. required by law, unless this requirement is waived by the director. . . . : � .. . ��ini.nr.rii.i�ua.iGU�wnniuRab Sec. 116.1$9. ReserJSation of regulatory and police powers. The city by th granting of a right-of-way pernut, or by registering a person under sections 116.05 through ll 7, does not surrender or to any extent lose, waive, impair, or lessen the lawfui powers m 00 -a�P' 0 and rights, which it has now or may be hereafter vested in the city under the Consutution and statutes f the State of Minnesota and under the Charter of the City of Saint Paul to regulate the use of the right-of-way by the permittee; and the pemuttee by its acceptance of a right-of-way permit or o registration under sections ll6.05 through 116.07 must agree that all lawful powers and righ , regulatory power, or golice power, or otherwise as are or the same may be from time to ti vested in or reserved to the city, shall be in full force and effect and subject to the exercise thereo y the city at 7 any time. A permittee or registrant is deemed to acknowledge that its rights are subject to the regulatory 8 and police powers of the city to adopt and enforce general ordinances necessary to tt�e� safety and 9 welfare of the public and is deemed to agree to comply with atl applicable general aws and ordinances 10 enacted by the ciry pursuant to such powers. 11 12 13 14 15 16 17 Any conflact between the provisions of a registration or of a right-of-way or future lawful exercise of the city's regulatory or police powers shall b�e and any other present d in favor of the latter. 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Sec. ll6.�920. Severability. If any secUon, subsection, sentence, clause, phrase, or rtion of this chapter or Chapter 135 is for any reason held invalid or unconstitutional by any court administrative agency of competent jurisdiction, such portion shall be deemed a separate, distinct, d independent provision and such holding shall not affect the validity of the remaining portions th eof. If a regulatory body or a court of competent jurisdiction should deternune by a final, non pealabie order that any permit, right or registration issued under Chapters 116 and 135 or any portio of these chapters is illegal or unenforceable, then any such pezmit, right or registration granted or emed to exist hereunder shall be considered as a revocable permit with a mutual right in either p y to ternunate without cause upon giving sixty (60) days written notice to the other. The requiremen and conditions of such a revocable pernut shall be the same requirements and conditions as s forth in the permit, right or registration, respectively, except for conditions relating to the term f the pernut and the right of termination. If a pertnit, right or registration shall be considered a revocable permit as provided herein, the pernvttee must acknowledge the authority of the city counciXto issue such revocable permit and the power to revoke it. Sec. 116.281. Boazd f water comirxissioners; city. Notwithstan�g anything to the contrary in this Chapter 116 or in Chapter 135 of the I,egisiative Code, the boazd of ater commissioners established pursuant to 1885 Minn. Laws, Ch. 110, may, at its discretio satisfy requirements for the posting of a bond by written undertaking which obiigates said boazd a surery with respect to such requirements. The said board may also, at its discretion, satisfy 19 oo-aca' i requirements for obtaining and maintaining insurance by written undertaking obligating said boar to the 2 city as required in said chapters, provided, however, that such undertaking need not waive liab� ty limits 3 or defenses available to it as a body corporate and politic organized and e�sting under the 1 s of 4 Minnesota. The city is excepted from the insurance and bonding requirements of these ch ters. 5 6 7 8 9 10 11 12 section 2. Legislative Code Chapter 135, is hereby amended to read: Chapter 135. Right-of-Way Pemrits Sec. 135.01. Purpose. 13 In order to provide for the health, safety and well-being of its p 14 rights-of-way, as well as to ensure the siructural integrity of its 15 minimize the number of obstructions and excavations taking pi 16 k�ace as it uses the u� blic �ts-of-way, the ciry desires to thereon. 17 The purpose of this chapter is to regulate obstructions and excavations in the rights-of-way by 18 providing, among other things, for the issuance of p �ts granting authority to obstruct or excavate 19 therein and by providing for the subsequent restor tion of the rights-of-way. 20 21 The findings and purpose statement in Cha er 116 is hereby incorporated in and adopted as part of 22 this chapter. 23 24 Sec. 135.02. Definitions. 25 26 The definitions found in secti 116.02 of the St. Paul I.egislative Code (hereinafter, "Legislative 27 Code") apply to ttiis chapter 28 29 30 31 32 33 34 Sec. 135.03. Permit Except as othe ise provided in the L.egislative Code, no person may obstruct or excavate any right-of-way ithout first having obtained � the appropriate right-of-way permit fro the department to do so. 20 6o-?�a' i (1) Excavation permit. An excavation permit is re uired to excavate 2 that part of the right-of-way described in such permit and to hinder free and open passage over the 3 specified portion of the right-of-way by placing equipment described therein, to the extent and i the 4 duration specified therein. 5 6 (2) Obstruction pemut. An obstruction permit is � ' r uifed to hinder 7 free and open passage over the specified portion of right-of-way by placing equipme described 8 therein on the right-of-way for the duration specified therein. 0 10 No person may excavate or obstruct the right-of-way beyond the date or dates 11 unless � such person {ij makes a supplementary application for another rig� 12 expiration of the initial pemut, and (ii) a new pernut or pernut extension is 13 14 15 16 17 18 19 20 21 22 d in the permit pemut before the Pemuts issued under this chapter shali be conspicuously displayed at 1 times at the indicated work site and shall be available for inspection by department inspectors and thorized city personnel. Sec. 135.04. Pernut applications. Application for a permit is made to the director. 23 Right-of-way permit applications shall con �n, and will be considered complete only upon compliance 24 with, the requirements of the following p ovisions: 25 26 (1) Registration with the departrne pursuant to Chapter 116. 27 28 (2) Submission of a complete pernvt application form, including all required attachments, and scaled 29 drawings showing the locati n and azea of the proposed project and the location of all existing and 30 proposed ec�i�mtenf facil' es. 31 32 33 34 (3) Payment of all a. Prior due to the ciry for: or excavations; 21 00 .acr 2 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 � �'.' � b. Any loss, damage, or expense suffered by the city as a result of applicant's prior excavations or obstructions of the rights-of-way or any emergency actions taken by the city; c. �3ser�ees; ar� Perinit fees and costs: d. Any franchise fees in atrears, due, owing and unpaid. � ,.�....��.� . .. . .:. : . .. .. . .. .. .� � . •:. � . � . • .. � . ::: :. . . Sec. 135.05. Issuance of permit; conditions. ff the director determines that the applicant has satisfied the requirements the posting Chapters 116 and 135, the director may issue a pemut. Such pernuts may, in the discretion of the ector, be issued as "various location" permits, with or without conditions as provided in this secti . The director may impose reasonable condilions upon the issu Ee of the permit and the performance of the applicant thereunder in order to protect the public healt safety and welfare, to insure the structural integrity of the right-of-way, to protect the property and s�fety of other users of the right-of-way, and to minimize the disruption and inconvenience to the tra�eling publia Without limiting the foregoing, the i{e, to insure the structural integriry of the director,to protectthe public health, safety and w right-of-way, to protect the property and safety of dismption and inconvenience to the traveling pu� . reasonable assurance that utilities and/ar their �Lon and qualified. These pernut conditions laws, including one-call, construction ; er usezs of the right-of-way, and to minimize the shall develop pernut conditions that provide :tors working in the right-of-way az'e competent but not be limited to, instruction in state and local safety, and construction standards, including restoration standards. Sea 135.06. Permit fees. 31 (a) Excavation permit fee. e excavation permit fee shall be in 32 an amount sufficient to r over the following costs if applicable: 33 34 (1) The city mana ment cost� � 35 22 �0-�8' 1 � The dismptive cost; 2 /" . � � 1 • �. . • i - - :� • ��:� r:� � - i° : � � -:� � � � � : � / � : _ _ , � , 6 (3� The degradauon cost_ 7 �l�J 11 12 13 14 15 16 17 : : air.uun���r.u�riunosuca�.i: . . � i - � . : : : � - - . (b) Obstruction permit fee. The obstruction pernvt fee shall be estal in an amount sufficient to recover the following costs if appllcable: (1) The city mana ement cost, � � The disruptive cost; and 18 (�3) The 19 20 (c) Payment of pertnit fees. No excavation permit 21 of snek excavation or obshuction pernut fees. bef 22 director may a11ow applicant skai}agree to pay � 23 � sqstexn• permit shall be issued without payment The fees within thirty (30) days of billing Hrerefer. 24 (d) Computation of disruptive cost. 'I'he d� ector shall determine the disruptive cost component of the 25 fees for excavation and obstruction, and n doing so shall have the purpose of providing a financial 26 incentive to permittees to minimize t ir obstruction and use of the right-of-way and to get in and get 27 out of the right-of-way as quickly a ossibie. In aid of that purpose, the director shall use in the 28 computation of the disruptive cos to the extent practicable, economic and accounting principles 29 relating to the quantification of e social costs resulting from street obstructions, including (1) losses to 30 31 32 33 34 35 36 businesses and merchants wh� would not have occurred but for the obstructions, and (2) social costs to the users of the right-of- y resulting from traffic delays, diversions, disrupUon in services, missed or delayed appointments, an decline in quality of life. Fees may vary from one (1) location to another based on the size of the ea to be obstructed; the duration that the right-of-way or parts of it wili be unavailable for publi use and travel; the proximity of businesses and enterprises which rely in whole or in part on access b members of the public or the delivery of supplies or raw materials; the importance of the particular ght-of-way as to the traveling public; the use of the particular right-of-way for 23 Do-ic� 1 emergency vehicles and the availabiliry of alternate routes; the traffic volumes carried by the particular 2 right-of-way; and the amount of vehiculaz, bicycle, and pedestrian tr�c that is reasonably likely to be 3 disrupted thereby. 4 5 (e) Use of pemut fees. All obstruction and excavation pemut fees shall be used solely for city 6 management, construction, maintenance and repair costs of the right-of-way. � 7 8 ( fl�nsitiea permit fees. permit fees for street usage, excavation and 9 obstruction � , pursuant to chapters 116 and 135, shall be proposed 10 b the director and estabiished from time to ume b '�_„ �___ ___ �_rr_ _. ___.., -v _ ci council; �' X "_-.'— - -- ty 11 bp resolurion, . 12 13 (g) All permit fees shall be doubled during a probationary period. 14 15 Sea 135.07. Dela P� enalty. ' 16 17 In accordance with Minnesota Rule 7819.1000 subp. 3, the Director shail impose a delav penaltv for l8 unreasonable dela sy in rieht-of-wav excavation. obstruction,�atchine, or restoration by pertnitee. The 19 delay�enaltv shall be pronosed b�the Director and established from time to time b,�l city council 20 resolution. 21 22 Sec. 135.0�8. Right-of-way patching and restoration. 23 24 The work to be done under the pernut, and the �atchin�and restoration of the right-of-way as required 25 herein, must be completed within the dates specified in the pemut, increased by as many days as work 26 could not be done because of circumsYances constituting force majeure or when work was prohibited 27 as unseasonal or unreasonable under this chapter. seetieir�35� In addition to patching its own work, 28 the permittee must restore the general area of the work, and the surrounding areas, inciuding the paving 29 and its foundations, to the same condition that existed before the commencement of the work�nd�st 30 - 31 nn��1 hs-ttterea€ter. 32 � 33 In its application for an excavation permit, the pernuttee may choose either to have the ciry restore the 34 right-of-way or to restore the right-of-way itself. f 35 j 24 ao -ac� 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 (1) City restoration. If the city restores the right-of-way, i� permittee shall pay the costs thereof within thirry (30) days of billing. If, - fo7 such restoration, the patek �avement settles due to permittee's improper backfilling, the pemuttee s pay to the city, within thirty (30) days of billing, . all costs assoc' e� with correcting the defective work. (2) Pernuttee restoration. If the pernuttee �n restores the right-of-way itself, of application of an excavation permit- � Post a performance bond_ 1�4�1�U1/��!'J�R�1lERU�P]���PI�IU�� I�I��UI� ��1�]�1�1�1U�I1�1��YGJ�\ . : . . . . . The pernuttee shall perform the-�erk excavation standards and with the materials specified by the prescribe the manner and extent of the restoratio� application or on a case-by-case basis. The dir Minnesota Rules 7819.1100. SaUOliaut�u.f V.�ri1�lr�a�lurlA�l1 33 Methods of restoration 34 base, and milling and p� 35 36 37 at the time ac fillin atchin and restoration according to the ctor. The director shali have the authority to md may do so in written procedures of general in exercising this authority sha11 be guided by include, but aze not limited to, patching, replacement of the right-of-way � of the entire area of the right-of-way affected by the work. The pertnittee 25 oo-a�� 1 shall conect defects in patchin�, or restoration performed by pemuttee or its a¢ents. Permittee, upon 2 notification from the department, shall conect all restoration work to the extent necessary, using the 3 method requued by the department. Said work shall be completed within five (5) working days of th 4 receipt of the nouce from the department, not includang days during which work cannot be done 5 because of circumstances consututing force majeure or days when work is prohibited as unse nal or 6 unreasonable under seetian-�3�1$ Chapters 116 and 135. 8 If the pernuttee fails to restore the right-of-way in the manner and to the condition req red by the 9 department, or fails to satisfactorily and timely compiete all repairs restorations requ ed by the 10 department, the department at its opUon may do such work. In that event the permi ee shall pay to the 11 city, within thirty (30) days of billing, the cost of restoring the right-of-way. 12 13 14 15 16 17 18 19 20 21 include the cost to accom�lish these xesponsibilities. Sec. 135.0$4. Joint applications. Registrants may joinfly make application for pernuts to el[cavate or obstruct the right-of-way at the same place and time. � 22 Registrants who join in and during a scheduled o struction or excavation performed by the department, 23 whether or not it is a joint application by two ( or more registrants or a single application, aze not 24 required to pay the obstruction and degradat n portions of the pernut fee. 25 26 Registrants who apply for pernuts for t e same obstruction or excavation, which is not performed by 27 the department, may share in the pa ent of the obstruction or excavation pernut fee. Registrants must 28 agtee among themselves as to the rtion each will pay and indicate the same on their applications. 29 30 Sec. 135.9910. Supplement applications. 31 32 A right-of-way pemut ' valid only for the area of the right-of-way specified in the permit. No permittee 33 may perform any w outside the area specified in the pernut, except as provided herein. Any 34 pemuttee which temunes that an area greater than that specified in the pemut must be obstructed or 35 excavated mus , before working in that gteater azea: (i) make application for a pemut extension and pay 36 any additio fees necessitated thereby, and (ii) be granted a new pernut or pertnit extension. 26 DO-}GP' 1 A right-of-way permit is valid only for the dates specified in the permit. No permittee may begin its 2 work before the pernrit start date or, except as provided herein, conunue working after the end date. ff 3 a permittee dces not finish the work by the pemut end date, it must make application for a new permit 4 for the additional time it needs, and receive the new permit or an extension of the old permit 5 working after the end date of the previous pemut. This supplementary application must be d 6 a�proved before the pemut end date. / 9 Sec. 135.181. Other obligations. 10 11 Obtaining a right-of-way pernrit dces not relieve permittee of its duty to 12 pemuts, licenses, and authority and to pay all fees required by any other 13 , , rules, laws or regulations. / 14 J �fi all other necessary or other applicable ; 15 A pernuttee shall compiy with all requirements of local, state an�federal laws, includang Minn. Stat. §§ 16 216D.01-.09 ("one call excavatian notice system"). 17 18 A permittee shall perform all work in conformance with 1 applicable codes and established rules and 19 regulations, and is responsible for all work done in th �ght-of-way pursuant to its pernut, regardiess of 20 who performs the work. 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Except in the case of an emergency, and with or excavation may be performed when seasoy such work. � A pernuttee shall not so obstruct a approval of the director, no right-of-way obstruction prohibited or when conditions are unreasonable for that the natural free and cleaz passage of water through the gutters or other waterways shall e interfered with. Private vehicles may not be p ed within or adjacent to a pernut azea. The loading or unloading of trucks adjacent to a pemut ea is prohibited unless specificaily authorized by the permit. Sec. 135.142. Denial (a) Mandatory permit. Except in the case of an emergency, no right-of-way permit will be granted: 27 oo-a�� (1) To any person required by-seetiarri�fr.95 to be registered who has not done so; (2) To any person required b}�seetsoa-�fr.8$ to file an annual report but has failed to do so; 5 (3) For any next-year project not listed in the construction and major maintenance plan r uired under 6 seefio� cha�ter 116:9g ("reportine obligations"l; 7 8 (4) For any project which requires the excavation of any portion of a right-of-w which was 9 constructed or reconstructed within the preceding five (5) years; 10 11 (5) To any person who has failed within the past three (3) yeazs to comg , or is presently not in full 12 compliance, with the requirements of Chapters ll6 and 135; 13 14 (6) To any person as to whom there exists grounds for the 15 135.� 16 17 18 19 20 21 22 (b) Pernussive denial. The director may 23 welfare, to prevent interference with the 24 right-of-way, would cause a conflict or � 25 event.or when necessaryto protectth x of a pernut under seefien chanter a pernut in order to protect the public health, safety and y and convenience of ordinary travel over the and its users. The director, in her or his discretion, 26 may consider one (1) of more of the ollowing factors: the extent to which right-of-way space where the 27 permit is sought is available; the c peting demands for the particular space in the right-of-way; the 28 availability of other locations in e right-of-way or in other rights-of-way for the e�ni�rnent facilities of 29 the permit applicant; the appli ility of ordinance or other regulations of the right-of-way that affect 30 location of ecnripment facilit s in the right-of-way; the degree of compliance of the applicant with the 31 terms and conditions of its anchise, Chapters 116 and 135, and other applicable ordinances and 32 regulations; the degree o isruption to surrounding communities and businesses that will result from the 33 use of that part of the ' ht-of-way; the condition and age of the right-of-way, and whether and when it 34 is scheduled for total r partial reconstruction; and the balancing of the costs of disruption to the public 35 and damage to the �ght-of-way, against the benefits to that part of the public served by the expansion 36 into additional p s of the right-of-way. � Do -��P' 1 2 3 4 5 6 � (c) Discretionary issuance. Notwithstanding the provisions of sections 135.1�2(a)(3) and 135.1�2(a)(4), the director may issue a permit in any case where the permit is necessary (a) to prevent substantial economic hazdship to a customer of the pennit applicant; or (b) to allow such customer to materially improve its utility service; or (c) to allow a new economic development project; and where the permit applicant did not have knowledge of the hardship, the plans for improvement of se ice, or the development project when said applicant was required to subznit its list of next-year pr ects. 8 (d) Pernuts for additional next-year projects. Notwithstanding the provisions of this a ter seetian 9 �35�, the director may issue a perznit to a registrant who was allowe under seetierr 10 cha�er ll6�${ej to submit an additional Next-yeaz project, such permit to be su ect to all other 11 conditions and requirements of law, including such conditions as may be impos d under seeYian ch� 12 135$5. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Sea (13) A�peal establishing the reasonableness of the decision. Sec. 135.1�4. Installation requirements. The excavation, backfilling, patching, be done in conformance with "The St� code. Sec. 135.135. Inspection. When the work under any Part 7819.1300 shall rcati director , and all other work performed in the right-of-way shall ifications for Street Openings" as promulgated by the and at a location as required by seetian this heteunder is completed, the permittee,as authorized bv Minn. Rules ut a completion certificate to the director at the time the �roject is 29 oo-�cr 2 Permittee shall make the work-site available to the department inspector and to all others as authorized by law for inspection at all reasonable times during the execution and upon compleuon of the work� 4 At the time of inspection the department inspector may order the immediate cessation of an work 5 which poses a serious threat to the life, health, safety or well-being of the public. 6 7 The department inspector may issue an order to the regish��nt pennittee for any wor hich does not 8 conform to the applicable standards, conditions or codes. The order shall state that ailure to correct 9 the violation will be cause for revocation of the pernrit. Within ten (10) days afte issuance of the order, 1Q the regisirnnt pernuttee shall present proof to the director that the violation has een conected. If such 11 proof has not been presented within the required time, the director may revok the pemut�rs�antfie 12 13 14 15 16 17 18 19 20 21 22 : . Sec. 135.1�6. Work done without a permit. (a) Emergency situations. Each registrant shall immediately of any event regarding its ee�ipment facilities which it proceed to take whatever actions are necessary in order business days after the occurrence of the emergency, th permits, pay the fees associated therewith and fulfill t a into compliance with Chapters ll6 and 135 for the cti ythe director orthe director's designee to be an emergency. The registrant may o/respond to the emergency. Within two (2) �registrant shall apply for the necessary rest of the requirements necessary to bring itself it took in response to the emergency. 23 In the event that it becomes aware of an emerg ncy regarding a registrant's equipment or facilities, the 24 department may attempt to contact the local presentative of each registrant affected, or potentially 25 affected, by the emergency. In any event, t department may take whatever action it deems necessary 26 in order to respond to the emergency, the ost of which shall be bome by the registrant whose 27 equipment or facilities occasioned the e ergency. 28 29 (b) Nonemergency situations. Exc t in the case of an emergency, any person who, without first having 30 obtained the necessary pernut, o tructs or excavates a right-of-way must subsequently obtain a 31 pertnit, pay double the normal ee for said percnit, pay double all the other fees required by the 32 I.egislative Code, deposit wi the department the fees necessary to correct any damage to the 33 right-of-way and comply th all of the requirements of Chapters 116 and 135. 34 35 Sec.135.157. 36 notification. 30 00 -a`r 1 2 3 � If the obstruction or excavation of the right-of-way begins later or ends sooner than the date given on the permit, permittee shall notify the department of the accurate information as soon as tivs�rmati is known. 5 If the obstruction of a right-of-way is of a shorter duration than that estimated on the 6 the department wili, upon request, refund or credit to the permittee a proportionate a 7 pemut fee. 8 9 Sec. 135.1fr8. Revocation of pernuts. 10 application, of the 11 Registrants hold pemuts issued pursuant to the I,egislative Code as a priyilege and not as a right. The 12 ciry reserves its right, as provided herein, to revoke any right-of-way imit, without fee refund, in the 13 event of a substantial breach of the terms and conditions of any stat e, ordinance, rule or zegulation, or 14 any condition of the pernut. A substantial breach by pernuttee sh i include, but shail not be limited to, 15 the following: 16 17 18 19 20 21 (1) The violation of any material provision of the (2) An evasion or attempt to evade any material F perpetration or attempt to perpetrate any fraud or pernut; >n of the right-of-way pernut, or the upon the city or its citizens; 22 (3) Any material misrepresentation of fact in�he application for a right-of-way permit; 23 24 25 26 27 (4) The failure to maintain the required (5) The failure to complete the and/or insurance; a timely manner; or 28 (6) The failure to conect a con "tion indicated on an order issued pursuant to this chagter seetien 29 -�35�3; 30 31 (7) Hiring illegal aliens; 32 33 (8) Failing to rep damage to other utilities; 31 oo-�cr 2 3 (9) Failing to report injuries. If the director detemunes that the permittee has committed a substantial breach of a term 4 of any statute, ordinance, rule, regulation or any condition of the permit, the director sh�ake a 5 written demand upon the permittee to remedy such violation. The demand shall state th3 continued 6 violations may be cause for revocation of the permit. Further. a substantial breach_ as srated above_ � 7 aliow the director to �lace additional or revised conditions on the permit. 9 Within twenry-four (24) hours of receiving notification of the breach, pernuttee 10 with a plan, acceptable to the director, for its conection. Pemuttee's failure to / s� 11 or the permittee's failure to submit an acceptable plan, or pernuttee's failure Sb' Jtall contact the director contactthe director, 12 the ap�roved �lan, shall be cause for immediate revocation of the pemut. Further, permittee's failure to 13 so contact the director, or permittee's failure to submit an acceptable pl,an, or permittee's failure to 14 implement the approved plan, shall automatically place the permitte , on probation for one (1) full yeaz. 15 16 From Ume to time, the director may establish a list of conditi s of the pernut which, if breached, will 17 automatically place the permittee on probation for one (1) 1 yeu, such as, but not limited to, working 18 out of the allotted time period, working on right-of-way ossly outside of the pernut, failing to report 19 utility hits, failing to report injuries or hiring illegal ali s. 20 21 If a pernuttee, while on probation, commits a 22 automatically be revoked and permittee will r 23 for emergency repairs. , 24 h as outlined above, permittee's permit will allowed further pernuts for one (1) full yeaz, except 25 If a pernut is revoked, the pernuttee sh also reimburse the city for the city's reasonable costs, 26 including restoration costs and the co s of collection and reasonable attorneys' fees incurred in 27 connection with such revocation. 28 29 30 31 32 33 34 35 7�i Sec. 135.1�9. Nonexclusive The remedies provided i his chapter and in Chapter 116 and other chapters in the Legislative Code aze not exclusive or in u of other rights and remedies that the city may have at law or in equity. The city is hereby ; rights-of-way, the provisions . d to seek legal and equitable relief for actual ar threatened injury to the public ng damages to the rights-of-way, whether or not caused by a violation of any of chapter or other provisions of the L,egislative Code. 32 AvrHORIZEn - ro FNncncE Iaw Pi Mu�svrn, Wscotvsnv, Iow.n, Sovn[ Daao W.�.scmvGiox D.C., C.OLORADO� IU.LWU, CN.tFORIVIA nivn Moi.*cnve W&LCER'S D]FECI DL4I. NUhIHER 672-3662 April 12, 2000 Messerli & Kramer pLOf¢sional assotlation Arro�YS nr Iaw 1800 F� Sr�r Towrns SSO SoL F�ni S'i'xEer Mnsuf'nrovs, Mu�soTA $$402-4218 "I�,artio�e (672) 672-3600 Fncsum,E (612) 672-3777 Db ��° Sr. Patn. OfPice I.E4GUE OF MINN'F_SO'I:A QIgS $Up,pING Sc'ii't:450, 145 Un'IVmsin AvIIVUe WFSr ST- PaUL, MuvxFSOra 55103-2Q94 "I�cEeaorm (651) 225-9757 FncsA�.s (651) 228-9787 Mr. Dan Bostrom, President BY HAND St. Paul City Councii St. Paul City Hall St. Paul, MN 55102 Re: Commenu on Pro�osed Amendments to St. Paul Legislative Code. Chapters 116 & 135, Right of Wav Administration and Rieht of Wav Permits Dear Mr. Bostrom: US West Communications has asked me to make some initial comments on the proposed ordinance aznending Chapters 116 and 135 of the St. Paul Legislative Code. Before I begin a secuon analysis o� each Chapter, I have two overall observations. First the issue of underground faciliry location is iroublesome from a legal perspective under both state and federal law. We do not think St. Paul can require underground location by right of way users because it wonld preclude certain above ground users (suclr as wireless) from the right of way, which violates the standard that rights of way should be administered in a competiuvely neutral manner. Second, these comments represent the most significant legal issues immediately identifiable. Chapter ll6, Rieht of Wav Adminisuation Section 116.02 Defuutions 4) "Citv manaeement cost". This defurition contains the ghrase "_., creating and maurtaining information on a geographical anformation system ("GIS") mapping system; ..." which is not an authorized statutory factor to be considered in assessing management costs. In addition, at the end of the defuution ffiere is a catch-all phrase that would, again, potentially broaden the statutorily allowed factors for assessing out-of-pocket costs incurred by the city in managing the public rights of way. In any event, actual costs should be published and }ustified by the City. 5) "Constructionperfornaance bond". The statute and the PUC rules provide the form of securiry should be acceptable to the local unit of government and it appeazs to me the proper reference should be to the City, rather than only the Director where there are other positions, such as the city attomey or the city council which may wish to comment on the form of security. 13)"Disruvtive costs" is rewritten to be a penalry, rather than a cost, neither of which is auffiorized by statute or PUC rule. It should be deleted. 20) °FacilitY or facilities". The PUC rule provides facility or facilities means any tangibie asset in the right of way required to �rovide utilitv services. The proposed St. Paul ordinance deletes the last phrase, which from a business perspective, may be appropriate. ao-a�� Dan Bostrom April 12, 2000 Page 2 22) "Minnesota Rules". Here the proposed ordinance attempts to isolate the Minnesota Rules as they were first published on June 1, 1999, regardless of whether they aze currenfly in effect. If the rules change the ordinance, from time to time, should be amended. Section 116.08 Reportine oblieations. This section is appropriate for plaunuig but, if used to deny a pemut (see chapter 135, section 135.12), is an illegal prohibition against use of the right of way under Minnesota law. Section 116.10 L,ocation of Facilities (a) Undererounding, (b) location, (c) Nuisance, and (d) Limitation of snace. These sections present a conflict with both Minnesota and Federal Law, if applied. Minnesota Statues § 237.162, et. se ., and § 253 of the Federal Telecommunications Act clearly provide that right of way use should be on "a competitively neutral" basis. By requiring undergrounding and ailowing the director to, make decisions for location of facilities within the right of way violate the competitive neutraliry standazd of those laws by discruninaung between above ground users, such as wireless, and below ground users, such as wireline companies. Either type of user may be disadvantaged depending upon the director's decisions. In addition, given ffie state-wide construction standazds of the PUC rules, the relocation of facilities within the right of way by the City can only be done pursuantto the high density corridor and relocation rules under Minn. Rules 7819.0200 and, 78193100. The following correcdons to ffie draft are recommended: i) On line 33, page 13, the words "... or above ground ..." should be inserted before ... or ..." ii) The last three words on line 34 and lines 35-37, all on page 13 should be deleted, with the phrase ".., and the standards of this section 116.10(a)," inserted. iii) The phrase "... which have already received zoning and other necessary approvals" on line 6 and 7, page 14 should be deleted. Sections 116.10(c) and (d) shouid be amended or deleted to conform with abandoned facilities, high density corridor and relocation of existing facilities rules. Ch�ter 135 Rieht of Wav Pernuts 135.06 Permit Fees (a) Excavation permit fee (2) The disruptive costs should be deleted as it is an unauthorized cost beyond which the city can charge (i.e. only the management cost and mapping data conversion costs may be charged an applicant), and § 135.06(b) (3) should be rewritten to include the word "conversion" between the words "data" and "costs' so the phrase should be "the mapping data conversion cost". (4) The degradation costs should be deleted, as it is an elecrive cost of the pemuttee if the pemuttee does not restore the right of way itself. (b) Obstruction pemut fee (2) The disruptive costs should be deleted as it is an unauthorized cost beyond which the ciry can charge (i.e. only the management cost and mapping data conversion costs may be chazged an applicant}, and § 135.06(b) (3) should be rewritten to include the word "conversion" between the words "data" and "costs" so the phrase should be °the manpin� data conversion cost". (4) The D c — �,(.$ Dan Bostrom Aprii 12, 2000 Page 3 degadauon costs should be deleted, as it is an elecuve cost of the permittee if ttie pemuttee dces not restore the right of way itself. (c} Computauon of disruptive costs. This section should be deleted as unnecessary because the cost cannot be charged a pemuttee. 135.12 Denial of Pemut (a) Mandatory denial. Sections 135.12(a)(2),(3) and (4) should be deleted as they exceed statutory authority. The failure to report or include a project in a plan would be an unreasonable withholding of approval or a violation of a prohibition on ffie City's authority. Minn. Stat. § 23'1.163, Subd 4 (d) and (e). (b) Permissive denial. To the extent the director has the opportunity to permissively deny a permit for only a temporary and limited time, in the interests of the public health, safery and welfare, or to prevent interference with safery and convenience of ordinary travel or to prevent interference with the e�ibiuon, celebration, festival or any other event, I believe that lunited and temporary power is reasonable and enforceable. However, there is a list of other factors which go well beyond the statutory authority under Minnesota Statute § 237.162, et se . and I believe that portion of the ordinance is not enforceable and shouid be deleted. The conflict is, again, one of providing powers to the designated authorities beyond the "mere managemenY' and "reasonable" regulation of the right of way which could result in unlawful discrimination and selection by and unong right of way users, or prevent the lawful use of the right of way without providing a grocess for obtaining a pernut otherwise authorized by this Chapter and Chapter 116. (d) Pertnits for additional next year projects. This section should be amended to conform with Minn. Stat. 237.163, Subd 4. (d), as follows: "The director may issue a permit to an applicant for a project not included in a plan if the applicant has used commercial]y reasonable efforts to anticipate and plan for the project." Secrion 135.18. Revocation o�emuts. Added language on lines 6 and 7 on page 32 should be deleted as exceeding statutory authority, and possibly exceeding ihe applicable standazds contained in Chapters 116 and 135 of the St. Paul L.egislative Code. US West believes many of its concems may be resolved in discussions among US West, the Public Works Department, and the City Attorney's office. We hope to bring agreed upon language back to the City Council at the earliest possible date. Very truly yours, S RLI 8y KRAMER P.A. `� � John R. Beattie c: Phyllis Harvin Jan Unstad Kevin Saville, Esq. oQ -a�� U S WEST Wireless, L.L.C. 426 North Fairview Avenue Room 701 St. Paul, MN 55104 April 12, 2000 St. Paul City Council City Hall and Court House 15 West Kellogg Boulevazd St. Paul, NLrI 55101 RE: Public Right-of-Way Ordinances Chapters 116 and 135 Aeaz City Councii, ,.� � .�,�, ���,,,.. ��' �. d�.. � . US West Wireless (USWW) respectively requests that the following comments be considered in the proposed amendments to the Righ,t-of-Way Ordinances to the City of St. Paul, which aze contained in Chapters 116 and 135. We are submitting these comments in an effort to improve the ongoing relationship between US West Wireless and the City of St. Paul and to help make the ordinances more workable for all. Specific comments are as follows: Sec. 116.01, p.2,1.14. Insert after "Code provisions" a new sentence: These newly enacted chapters hereby suoersede other �rovisions within zonine reeulations and the Codes. This would help eliminate any ambiguities between the author?ty of the Planning Commission and the Public Works and consolidate responsibility in the Public Works Departrnent. Sea 1i6.02 (4), p.3, 131. D elete: o...:.,,. ....a ... ...,.:,,:..,. :,.o,....,,�«:,... ,. .. � .,, ..,.:,.,.� r..F ..........:.... c..,-.e... " : This should be deleted because it is not a statutory factor to be considered in assessing management cost. Sea 116.02 (22), p.5, 1.26. Delete: �°'�°«'�°- �F ��"'�°- °�° �..�-°�''° :� F���° and add: as thev ma�be updated from time to time. As the PUC rules change from ume to time, the ordinance shonid be amended to reflect these changes. USA �.�;� Proud Sponsor 36USC380 bo -a6� USWW Comments Page 2 Sec. 116.06, p.9, 1.19. This section should be retained since it is a section that has granted a right to use the right of way, provided the user complies with all the requirements of the ordinance and law. This conforms with both Federal and State law and prevent differentiation between current and prospective public rights-of- way users. Sec. 116.07 (3)d. and (5), p.10, 1.23 and p.l l, I.1. There is an issue of congruence and possible conflict. One paragraph requires 15 days notice and the other requires 30 days notice. We suggest that both paragraphs provide for a 30 days notice period. Sec. 116.09 p.13,1.4. After the sentence ending "fee to the applicant.", insert the following new sentence: The City shall vrovide each applicant with iY s current data formatting requirements. This would allow applicant's to supply the City with data in the City's data format. Sec. 11610 (a) (2), p.14,11 After the term "transformers" insert the term transceivers. This would include ground equipment far wireless telecommunication service providers. Sec. 135.05, p. 22, 1.14. The conditional term "may" should be replaced with the mandatory term shall. If an applicant meets all terms and conditions the persnit shouid be issued without any further descriptions on the part of the director. Sec. 135.06 (3), p.28,1.22. To the extent that the city engineer has the opportunity to pernussively deny a permit for a only temporary and limited time, in the interest of the public health, safety and welfaze, or to prevent interference with safety and convenience of ordinary travel to prevent interference with the exhibition, celebration, festival or any other event, we believe that o�. ac� usww co�ents Page 3 limited and temporary power is reasonable and enforceable. However, there is a list of other factors wluch go well beyond the statutory authority under Minnesota Statute 237.162 et seq. and we believe that portion of the ordinance is not enforceable and should be deleted. The conflict is one of providing powers to the designated authorities beyond the "more managemenY' of the right-of-way which could result in unlawful discrimination and selection by and among right of way users, or the prevention of use outside a lawful zoning process. We trust that the City Council will give our comments due consideration and we look forward to continued good relations with the City of St. Paul in the future. I wiil be present at April 12`�' City Council meeting to answer any of your questions or concems regarding these comments. Submitted, Regional Real E�te Manager US West Wireless, L.L.C. 651 642-6016 aN 2 S \_ 1 Council File # �� � �� 8 v ' p S`` ���^-� e- ` Ordinance # (��.� \ \ \ �, � �c o a Green Sheet # � 0 27 � S ORDINANCE ,, , CITY OF SAINT PAUL, MINNESOTA Presented By / �� Refesed To Committee: Date An ordinance amending I.enislative Code Chapters 116 and 135 of the Saint Paul L,egislative Code to provide for reb lation of the public right-of-way. THE COUNCiL OF THE CTI'Y OF SAINT PAUL DOES ORDAIN: 0 8 9 10 11 12 13 14 section 1. Legislative Code Chapter 116, is hereby amended to read: Chapter 116. Right-of-Way Administration Sec. 116.O1. Findings and purpose. General 15 In order to provide for the health, safety and well-being of its citizens, as well as to insure the structural 16 integrity of its streets and the use of the up blic rights-of-way, the city strives to keep its rights-of-way in 17 a state of good repair and free from unnecessary encumbrances. Although the general population bears 18 the financial burden for the upkeep of the rights-of-way, a primary cause for the eazly and excessive 19 deterioration of its rights-of-way is their frequent excavation by persons whose equipment is located 20 therein. 21 22 Right-of-way obstruction is a source of loss of business to merchants and others whose places of 23 business aze located nearby and a cause of frustration for the general population which must avoid these 24 obstructions or change travel or shopping plans because of them. Persons whose equipment or facilities 25 are is located within the right-of-way aze the primary cause of these frequent obstructions. 26 27 The city recognizes that it holds the rights-of-way within its geographical boundaries as an asset in trust 28 for its citizens. The ciry and other public entities have invested millions of dollars in public funds to build 29 and maintain the right-of-way. It also recognizes that some persons, by placing their equipment or 30 facilities in the right-of-way and charging the citizens of the city for goods and services delivered 31 thereby, are using this property held for the public good. Aithough such services are often necessary or li�i':� 1,� !i 00 -a�P 2 � 6 7 9 10 11 12 13 14 15 16 17 18 19 20 convenient for the citizens, such persons receive revenue and/or profit through their use of public property. The city finds that to protect the public health, safety, and welfaze, and to protect the public right-of-way and its current use, it is necessary for the city to detertnine the competence and qualifications of the persons who perform the actual excavation of the right-of-way, installation of facilities, and restoration of the right-of-way, at the request of, and on behalf of those persons who wish to place facilitfes in the public right-of-way. The lack of competence and qualification of persons who work in the right-of-way has caused substantial public inconvenience, substantial safety risks for the public, and has unduly restricted public use of the right-of-way. In response to the foregoing facts, the city hereby enacts new Chapters 116 and 135 of the St. Paul Legislative Code relaung to right-of-way permits and administration, together with an ordinance making necessary revisions to other Code provisions �--�� These ordinances impose reasonable regulations on the placement and maintenance of equipment or facilities currenfly within its rights-of-way or to be placed therein at some future time. Under these ordinances, persons disturbing and obstructing the rights-of-way will beaz a fair share of the financial responsibility foz their integrity. Finally, these ordinances provide for recovery of out-of-pocket and projected costs from persons using the public rights-of-way. �..A.�.�.�....�....���..��.��.�.....�� . :: : :. : -. .� •: . ... �. . . .. . � :. : : : :. .. .: . : : :. � ::: : :� .:. .. - . . . ... . . . ... . � . : : :. . . . : . . .. . . � . . . . . � . . 26 27 28 29 30 31 32 33 34 35 '.. : ;� .. : � . :. : ... : . .� : . ..• : .• :. . . : : ..� . . .... : :. .. ..•: :. ..• :. :. . : : .: : . : :... : . :.: : :. . . :� : . : . . . . . . :.: - : :� . :� :: .: - - - . - - •...:,...,u:i.y.� - : . . - - . .: •• � : :. : • : .. - : . .: .:• �: : � : :. : �::. .: :. : . :. . .. : .. : � : . .: � : : : . . . : : � : ..� • .: . . :� . :: : :. : :� . . . ... � 1 . . . : : . � ::.. : : :. .: � : . . � :. : : .• :� : . : .. ..• . � : ..:. 2 00 -���' �' C� 8 9 lo 11 12 13 14 15 �i����i.i��a��nbo•rr.vaiiii:w�iaii��r.���r.�u nnn� l�l�l�tl�l��{I�l�l�l�J��R�I�\�. J�\\T1�1�•I�.�1� ' • • � � \ �� \ � - � - • � 1 � \ � ` �� � • 1 � \ \ • \ • • • • � • • • • � � • • • � � • • • • • • • • • • • • • • .:� : : . . : . . . . . . : � : : .� :. � : . . : ._ %I����61�N��GU�S•!•�• A � � The findings in the purpose statement in Chapter 135 are hereby incorporated in and adopted as part of this chapter. Sec. 116.02. Definitions. 16 The following definitions apply in both Chaptexs 116 and 135 of the Saint Paul I.egislative Code 17 (hereafter, "Chapters 116 and 135" or "these ordinances"). References hereafter to "sections" are, 18 unless otherwise specified, references to sections in the Saint Paul Legislative Code. Defined terms 19 remain defined terms whether or not capitalized. 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 (11 Abandoned Facilit�means a facili no loneer in service or physically disconnected from a portion of the operatin facility, or from anv other facility, that is in use or still carries service. A facilitv is not abandoned unless declazed so by the ri¢ht-of-way user. (�2) Applicant means any person requesting permission to excavate or obstruct a right-of-way. (�� City means the City of St. Paul, Minnesota. (34) City mana eg ment cost means the ' actuai costs incuned by the ciry maintainine informaUon on a Geographical Information Svstem ("GIS"1 mappin�ystem; inspectingjob sites and restoration proiects; maintaining, supporting�protectin�, or movinguser equipment or facilities during�ublic right-of-way work; deternuning the adequacy of ri�ht-of-way restoralion; restorin�work inadequately�erformed after providing notice and the o�portunity to correct the work• and revoking right-of-waypermits and perfomung , > , , all of the other tasks required by Chapters 116 and 135, including other costs the city may incur in managin�provisions of this chapter. (5) Construction performance bond means any of the followin� forms of security provided at the permittee's o�tion• a) individual �roiect bond• bl cash deposit c) security of a form listed or approved 0 0 -aGP' 1 under Minnesota Statutes section 15.73, subdivision 3: d) letter of credit, in a form acceptable to the 2 Director; e) self-insurance, in a form acceptable to the Director: and fl a blanket bond for projects 3 within the City, or other forms of construction bond, for a time s�ecified and in a form acceptable to the 4 D'uector. 6 7 8 9 (61 Degradation means a decrease in the useful life of the right-of-way caused by excavation in or disturbance of the right-of-way resulting in the need to reconstruct such ri�ht-of-way eazlier than would be rec�uired if the excavation or disturbance did not occur. 10 (7) Degradation cost means the coSt to achieve a level of restorauon as determined by the city at the 11 time the uermit is issued, not to exceed the mazcimum restoration shown i�lates 1 to 13, set forth in 12 Minnesota Rules 7819.9900 to 7819.9950. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 (81 Deeradation fee means the estimated fee established at the time of �ermittin�v the citXto recover costs associated with the decrease in the useful life of the right-of-wav caused bv the excavation, and which eqnais the de�radation cost. (9) Delay penalty is the penalt�posed as a result of unreasonable delavs in riaht-of-way excavation, obstruction, patching�or restoration as established bv pernut. (�10) Department means the department of public works of the city. (311) Department inspector means any person authorized by the director to cany out inspecUons related to the provisions of Chapters 116 and 135. (fi12) Director means the director of the departrnent of public works of the city, or i�er�er the director's designee. (�13) Diszuptive cost is the penalty imposed as the result of � the adverse impact on city citizens and others who are required to alter travel routes and times resulting from right-of-way obstructions. 33 ($� Downtown business district means that portion of the City of Saint Paul lying within and bounded 34 by the following streets: Beganning at the intersection of Shepard Road with Chestnut Street, Chestnut 35 Street to Interstate Freeway 35E, Interstate Freeway 35E to Interstate Freeway 94, Interstate 36 Freeway 94 to Lafayette Bridge, Lafayette Bridge to where the bridge crosses over Warner Road, 37 Warner Road to Shepard Road, Shepazd Road to Chestnut Street. 38 39 (�15) Emergency means a condition that (a) poses a clear and immediate danger to life or health, or of 40 a significant loss of property; or (b) requires immediate repair or replacement in order to restore service 41 to a customer. 4 00 -2t�' (196) Equipment means any tangible asset used to install, repair. or maintain facilities in anv ri hg t-of- wav or which obstmcts an� rieht-of-way. -- and-thesri�eettt�rb. (1�7) Excavate or Excavation means to dig into or in any way remove or physically disturb or peneuate any part of a right-of-way. 9 (1�� Excavation pernut means the pemut which, pursuant to Chapters 116 and 135, must be obtained 10 before a person may excavate a right-of-way. An Excavation permit allows the hoider to excavate that 11 �art of the right-of-way described in such permit. 12 13 14 15 16 17 18 19 20 (139� Excavation permit fee means money paid to the city by an applicant to cover the costs as provided in seetiar� Chapte7 135.A6: (201 Facility or Facilities means anY taneible asset in the ri¢ht-of-way. - � : : . : : :• :..� . . . : . 21 (�-521) Local representative means the person or persons, or designee of such person or persons, 22 authorized by a registrant to accept service and to make decisions for that registrant regarding all 23 matters within the scope of Chapters 116 and 135. 24 25 26 27 28 29 30 31 32 33 34 35 36 (22) Minnesota Rules means Minnesota Rules as published by the Revisor of Statutes as thev existed on June 1, 1999, whether or not they aze currentiv in force. (i{23) 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. (i-�� Obstruction pernut means the permit which, pursuant to Chapters 116 and 135, must be obtained before a person may obsUuct a right-of-way. (i-8�5) Obstruction pernut fee means money paid to the city by a registrant ep rmitee to cover the costs as provided in seetian Cha�ter 135.8Er. 37 (26) Patch or Patchin� means a method of pavement replacement that is temporary in nature. A patch 38 consists of (1) the compaction of the subbase and aggregate base, and (21 the replacement, in kind, of 39 the existing�avement for a minimum of two feet be�ond the edges of the excavation in all directions. A 40 patch is considered full restoration onlv when the pavement is included in the citv's five �eaz project 41 l�an 5 oc-a6P' 2 0 7 (271 Pavement means any type of improved surface that is within the public right-of-wa�and that is paved or otherwise constructed with bituminous concrete, aggregate, or gravel. (i9� Pemuttee means any person to whom a pernut to excavate or obstruct a right-of-way has been granted by the ciry under Chapter 116 or 135. i ♦ �- \ - h� •/�tfl4�r�lUtRUOljl� :w�aiiwrmii�aiiauni:iouwiui:w�r:inln�� $ , > > 9 > b 10 -- . an individual or entit �} subject 11 to the laws and rules of this state, however organized, whether public or private, whether domestic or 12 foreign whether for profit or non�rofit, and whether natural, corporate, or political. Examples include: 13 A) a business or commercial enterprise organized as anv type or combination of corporation, 14 limited liability company�partnership, limited liability�artnership, proprietorship, association, 15 cooperative, ioint venture, cazrier or utilitv, and anv successor or assignee of anv of them; 16 B) a social or chazitable organization; and 17 C) anKtvpe or combination of political subdivision, which includes the executive, judicialzor 18 legislative branch of the state, a local �overnment unit, or a combination of any of them. 19 20 21 22 23 24 25 (z"�� Probation means the status of a person that has not complied with the conditions of Chapters 116 and 135. (�31) Probationary period means one (1) yeaz from the date that a person has been notified in writing that they have been put on probation. 26 (�332) Registrant means any person who (1) has or seeks to have its equipment or facilities located in 27 any right-of-way, or (2) in any way occupies or uses, or seeks to occupy or use, the right-of-way or 28 any equipment or facilities located in the right-of-way. 29 30 (�33) Registration fee means money paid to the city bq�regisir�xt to cover costs associated with 31 registration. 32 . �:. .. . .: . . : : . . • : . . : : .. :� :. . ... .. . :.: :: : : . : . . . . . . ... . : . 36 37 38 39 40 41 (�634) Restore or Restoration means the process by which an excavated � right-of-way and surroundine area, including pavement and foundation, is returned to ° the same condition that existed before the excavation. (�� Restoration €ee cost means an amount of money paid to the ciry by a permittee to cover the cost 0 � of restoration. ;- -.� . . . . : � -. : � . :� :. . � ...: : � _. .. - . .... : :. :. : .. :..: :i -: i - - .- --. :� - .-- :� a : .:- - .-- : a - i � � ��"_' .� • - :�. _ • _ � ' � ' i • _ _ • . t ___ ' r _ _� •:." ' •'_ � � � •" 9 (3936) Right-of-way or Public Ri�ht-of-way means the 10 , , 11 , , > > 12 , , , , , > 13 , , , 14 . azea in, on, below, or above a public roadwav, hiehway. street, cartwav, 15 bicvcle lane and pubiic sidewalk in which the citv has an interest, includin�other dedicated ri hte s-of- 16 wav for travel putposes and utilit�easements of the city. A right-of-wav does not include tt�e airwaves 17 above a public rieht-of-wa�with reeard to cellular or other nonwire telecommunications or broadcast 18 service. 19 20 (3937) Right-of-way pernut means either the excavation permit or the obstruction pernut, or both, 21 depending on the context, required by Chapters 116 and 135. 22 23 (38) Rieht-of-wa�user means: (1) a telecotnmunications right-of-way user as defined by Minnesota 24 Statutes, section 237.162, subdivision 4; or (21 a person ownin¢ or controllin� a facilitv in the public 25 rlght-of-way that is used or is intended to be used for providing utilitXservice, and who has a rieht 26 under law, franchise, or ordinance to use th�ublic ri¢ht-of-wak 27 28 (3-�39) 5ervice or utility service includes (i) those services provided by a public utility as defined in 29 Minn. Stat. § 216B.02, subds. 4 and 6{�9�j; (ii) , , - , 30 , , , , , 31 , , ' a , seroices of a telecommunications right-of-way 32 user, includingtransportin� of voice or data information; (iii) the services of a cable communications 33 svstem as defined in Minn. Stat. § 34 396:63-E�j 238; �(iv) natural gas or electric energy or telecommunications services provided bv 35 the city;_ (vl services provided by a cooperative electric associaUon oreanized under Minn. Stat. § 36 308.A; and (vi) water, sewer, steam, cooling or heatin¢ services 37 . 38 39 (3�40) Supplementary application means an application made to excavate or obstruct more of the 40 right-of-way than allowed in, or to extend, an obstruction or excavation pernut that had already been 41 issued. 7 aa -acY � io 11 12 13 14 15 16 17 18 . . . . . :: . . . : . .. . .-�:�--�: : :, :, : . . . . : . . . : • : . .. : . :, . . . , , : : : .: .. : . . ::. - . . : . .:. : .• . . . _ . . ... , . :. :. . . : . :. : . : : :. • : . :. . : . : : : .. . . : . : . : , . . : : :. : . • :, , . . . : :.. :. : :, . . . ., : , :, . .. :: . . . . . ...: : . .: :, : :, ; , Sea 116.03. Administration. The director of the department of public works shall be the principal city official responsible for the administration of the rights-of-way, right-of-way pernuts, and the ordinances related thereto. The director may delegate any or all of the duties hereunder. Sec. 116.04. Utility coordination committee. 19 There is hereby created a utility coordination committee. This committee shall be voluntary and advisory 20 to the director. It sh� mav be composed of any registrants that wish to assist the 21 city in obtaining information and by making recommendations regarding ways to take greater 22 responsibility for the right-of-way, and to improve the process of performing construction work therein. 23 The director shall determine the size of such committee, make all a�pointments to such committee, and 24 establish any rules governin� such committee. Notice of the meetings of such committee shail be given 25 by the director to any registrant making a written request to the director to be so notified. 26 27 Sec. ll6.05. Regisuation and right-of-way occupancy. 28 29 Each person who occupies, uses, or seeks to occupy or use, the right-of-way or any equipment or 30 facilities located in the right-of-way, or who has, or seeks to have, equipment or facilities located in any 31 right-of-way shall register with the department. Registration will consist of providing application 32 information te as required by the director, , 33 , and payment of anv reeistration fee. 34 35 36 37 38 39 40 41 �.�.�� � ns � A1:1 � l�t.SJI � r: n ol.t• n r: u � lil � m�r. Ali ��l u uKi r.O [n � mirn ��:ti � n f.I:PI e HI �����wvw� .� � .: : :.� : : . . .� : . :• :. . :. . : . . . :. :. . : : : : : . : . . . .� .. - . : � : . � : : :�. : :. :. : :. . � , . : ; � :: - : . :.. : . . 00 -a��- :. . :. . : . . . :. : .. .. :. : .. . .. 2 3 No person may construct, install, repair, remove, relocate, or perform any other work on, or use any 4 equipment or facili or any part thereof located in any right-of-way without first being registered with 5 the department. 6 : :. : • . . . � . . :� :� : : : :. .: :� • � � . .• : . .;. . ;� � . . . I�1�6���11U�LL�ll�1� • - • � � • lo 11 12 13 14 15 16 17 18 19 Nothing herein or in Chapter 135 shall be constmed to repeal or amend the provisions of a city ordinance permitting persons to plant or maintain boulevazd plantings or gardens or in the area of right-of-way between their property and the street curb. Persons planting or maintaining boulevazd plantings or gardens shall not be deemed to use or occupy the right-of-way, and shall not be required to obtain any permits or satisfy any other requirements for planting or maintaining such boulevazd plantings or gardens under this chapter or Chapter 135. Sec. 116.06. , . Reserved. 1 °. . . : . : : .: � . . : . : .. . : . . : .• . .:. : .: : : . . . : • : : : : . . : 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 . . . : . .. .. : .. . :: . ;� . : : : . : . : : :� . . .:� : : :� : :� .:� : :: . . : . . :: .. .. . .: . . . . : . . . : . . . . . . :. :. : . !�rt�aaur.�lrauu�:��riwuui:biva:ii�� - - i - . :. . :.. � . . . . . : : .. . . .. .. . .. .. . . . .: •: .. :. . .• : . .:. . .� : . . . : : : : :� : - .. : . . . . :� :� . . • : : .: .. : :. Sec. 116.07. Registration information. The information provided to the department at the time of registration shall include, but not be limited to: 0 Co .a �8' (1) Each registrant's name, Gopher State One-Call registration certificate number, address and e-mail address if applicable, and telephone and facsimile numbers. 4 (2} The name, address and e-mail address, if applicable, and telephone and facsimile numbers of a local 5 representative. The local representative shall be available at all times. Current information regazding 6 how to contact the local representative in an emergency shall be provided at the time of registration. (3) A certificate of insurance or self-insurance: 9 10 a. Verifying that an insurance policy has been issued to the registrant by an insurance company licensed 11 to do business in the State of Minnesota, or a form of self insurance acceptable to the citv; 12 13 b. Verifying that the registrant is insured against claims for personal injury, including death, as weli as 14 claims for property damage arising out of the (i) use and occupancy of the right-of-way by the 15 registrant, its officers, agents, employees and pernuttees; and (ii) placement and use of facilities and 16 equipment in the right-of-way by the registrant, its officers, agents, employees and pernuttees, including, 17 but not limited to, protection against liability arising from completed operations, damage of underground 18 equipment and collapse of property; 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 c. Naming the city as an additional insured as to whom the coverages required herein are in force and applicable and for whom defense will be provided as to all such coverages; d. Requiring that the director be notified thirty (30) days in advance of cancellation of the policy; �n$ or material modification of a coverage term; e. Indicating comprehensive liability coverage, automobile liability coverage, workers compensation, and umbrella coverage in amounts established by the director of the office of risk and employee benefit management in amounts sufficient to protect the ciry and carry out the putposes and policies of Chapters 116 and 135. (4) If the person is a corporation, a copy of the certificate required to be filed under Minn. Stat. § 300.06 as recorded and certified to by the secretary of state. (5) A copy of the person's order rantine a certificate of authority from the Minnesota Public Utilities Commission, where the person is lawfully required to have such ceftificate from said commission or other state or federal a encies. . - - . : . . : .. • . . :� . . ., . . The registrant shall keep all of the information listed above cuirent at all times by providing to the 10 po -a`P 2 4 5 6 7 9 10 11 12 13 14 15 16 17 department information of changes within fifteen (15) days following the date on which the registrant has knowledge of any change. Sec. 116.08. Reporting obligations. (a) 6geratiens Each registrant shall, at the time of registration and by December 1 of each yeaz, file a construction and major maintenance plan with the department. Such plan shall be submitted using a format designated by the director and shall contain the information determined by the director to be necessary to facilitate the coordination and reduction in the frequency of excavations and obstructions of rights-of-way. The plan shall include, but not be limited to, the following information: (1) The speei€�locations and the estimated beginning and ending dates of a11 projects to be commenced during the next calendar year (in this section, a"next-year project"); and 18 (2) To the extent known, the tentative locations and estimated beginning and ending dates for all 19 projects contemplated for the €roe-{Sj four yeazs following the next calendaz year (in this section, a 20 "five-year project"). 21 22 The term "project" in this section shall include both next-year projects and five-year projects. 23 24 By January 1 of each year, the department will have available for inspection in its oYfices a composite 25 list of a11 projects of which it has been informed in the annual plans. All registrants are responsible for 26 keeping themselves apprised of the current status of this list. 27 28 29 30 31 32 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 that was listed by the other registrant. . •. : : -. . .: . ... .. : : . .: � : . . : :.. . .:. : •. . : : . : : : . : :. . � :� : :. . .:. :�: . . ..�-: : .. . . -: . :. . . . : - . : . :. :. . . . :. .: • - ' . . . . . . . . . • . . � . .. .� . . � . . .: : . : .. . .. 40 41 - . Notwithstanding the foregoing, the director may, for good cause 11 00 -a «' 2 3 4 5 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 shown, allow a registrant to submit additional next-yeaz projects. Good cause includes, but is not limited to, the criteria set forth in section li5.1�2(c) conceming the discretionary issuance of pernuts. Sec. 116.09. Mapping data. - .� .. . . . . . ..� . . . . . .� . . . . : • : ... : � . : . •• : . : : : . . .. , ... . : • •• � . : :� : � :� : :.. :: ... : :� . . . • : : . : . : . � : .:� . : .. - i � � - i - � : � - � � • � . � " i � � � � � . 1 i � � � ' � �" � � �" .�� • • "� "� 1 .�' Within sis (6) months after the acquisition, installation, or construction of additional eqniPment facilities or any relocation, abandonment, or disuse of existing equigment facilities, each registrant shall supplement the mapping dxfx information required herein. A person wishinp to undertake a proiect within the public ri¢ht-of-way shall submit a ri¢ht-of-way permit a�ulication which contains the following information: L,ocation and a�roximate depth of ap�licant's mains, cables, conduits, switches, and related equipment and facilities, with the location based on: a) offsets from propertY lines, distances from the center line of public rieht-of-way, and the curb lines as determined bv the director, b) coordinates derived from the coordinate system bein ug sed by the director; or cl an o� ther svstem a�reed u�on by the right-of-wav user and the director. The type and size of the utilitv facilities. A description showin a� bove ground appurtenances. A le e,g nd explainin�ymbols, chazacters, abbreviations, scale and other data shown on the mao• Anv facilities to be abandoned, if a�plicable in conformance with Minnesota Statutes 216D.04, subdivision 3. The pemvttee shall submit "as-built" drawin�s reflectin�an sv ubsequent chanees and variations from the information provided under this section. 39 The ri�ht-of-wav user is not required to provide or convey mappine information of data in a format or 40 manner that is different from that which it currentiv utilizes and maintains. The rieht-of-way user shall, 41 however, include the cost to convert the data funished b� right -of-way user to a format currentl� 12 ao -acY 1 use by the local nnit of �ovemment as part of the permit application fee. These data conversion costs, 2 unlike other costs that make u�pernut fees, makbe included in the permit fee after the permit 3 application process is completed and shall be immediately due to the citv upon the ascertainment of the 4 cost and notice of the fee to the apnlicant. Anypermit for which such fee has not been paid within 30 5 davs of notice from the citv ma�upon written notice be revoked. The cittishall not issue any other 6 nermits to this registrant until such fee is paid• 7 8 At the rec�uest of the Director, a riaht-of-way user shall �rovide existing data on its existing facilities 9 within the public right-of-wav in the form maintained bv the user at the time the request was made if 10 available. 11 12 At the request of any registrant, any information requested by the department which qualifies as a 13 "trade-secret" under Chapter 94 0£ the St. Paul Administrative Code or Minn. Stat. § 13.37(b) shall be 14 treated as trade secret information as detailed therein. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 ,�,.�..� . . : . '. .. � .:� . : . . : . :� . . . :. : : : . : . .• :- . -. -,--:� : :� :.. :: - : ::• - ..- -: - ... : . *. :� : . : : . � . . : :. . . .. : :� . *. �: . : _. ... -:: . .. � :.•:. . :.. � :. :. . . : : . '. .. , :� .. • . : . - - . : : '. :� : .. . : .. :. .:.:• :� . � : . :. ... -.: : :.. �_ � :. ..= . . .. Sec. 116.10. Location of ecttrigment facilities. 32 (a) Undergrounding. - , New 33 construction and the installation of new equipmerrt facilities shall be �ene located underground or 34 contained within buildings or other structures in confornuty with � applicable codes except that the 35 Director may aPprove the above ground location and installation of the followin i� f they do not create 36 � unreasonable safety, maintenance, or aesthetic concerns or conflict with the current use of the ri¢ht- 37 of_wav. 38 39 (11 New poles, and new �ole lines under 660 feet in leneth which do not conflict with existing or 40 planned trees or other facilities. 41 13 oo-ar.P' � C� 8 9 10 11 12 13 �) New ancillary facilities and ap�urtenances to existing facilities, such as transformers, meters, iunction boxes, splice boxes. (3) New junction boxes for existin�underaround utility service to individual locations and homes. (4) New cell towers and related new facilities and appurtenances which have already received zonin¢ and any other necessar�pprovals. 5 The re�air or replacement of existin�bove ground facilities with similaz or smaller new facilities. (61 Any other new faciliues which the Director has deternnined that, due to expense, nature, or function cannot reasonably be placed under�round. 14 (b) �rs Locations. The director shall assign specific eerri�ars locations within the right-of-way, 15 or any particular segment thereof as may be necessary, for each type of ec�vignrenf facilitv that is or, 16 pursuant to current technology, the director expects will someday be located within the right-of-way. 17 All excavation, obstruction, or other permits issued by the department involving the instailation or 18 replacement of e�ment facilities shall designate the proper eartider location for the eqnipnxenf 19 facili . 20 21 Any registrant whose �is facilities are located in the right-of-way in a position at variance with 22 the earri�ars locations estabiished by the director shall, no later than at the time of the next 23 reconstruction or excavation of the azea where its equipme�is facilities aze located, move that 24 ee�ipnxenf facilitv to its assigned position within the right-of-way, unless this requirement is waived by 25 the directar for good cause shown, upon consideration of such factors as the remaining economic life of 26 the facilities, public safety, customer service needs and hardship to the registrant. 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 (c) Nuisance. One (1) yeaz after December 11, 1996, any equipment or facilities found in a right-of-way that has not been registered shall be deemed to be a nuisance. The city may exercise any remedies or rights it has at law or in equity, including, but not limited to, abating the nuisance pursuant to section 45.11 of the Legislative Code or taking possession of the equipment ox facilities and restoring the right-of-way to a useable condition. (d) Limitation of space. The director shall have the power to prohibit or limit the piacement of new or additional � facilities within the right-of-way if there is insufficient space to accommodate all of the requests of registrants or persons to occupy and use the right-of-way. In making such decisions, the director shall strive to the extent possible to accommodate all existing and potential users of the right-of-way, but shall be guided primarily by consideraUons of the public interest, the public's needs for the particulaz utiliry service, the condition of the right-of-way, the time of yeaz with respect to essential utilities, the protection of existing eqni�tenE facilities in the right-of-way, and future city plans for public improvements and development projects which have been deternrined to be in the public interest. 14 ao-ac�' Sec. ll6.11. ReIocation of eqmgment existi� facilities. 2 3 When working in the rights-of-way, permittees shall not interfere with the safety and convenience of 4 ordinary travel along and over the rights-of-way nor interfere with other uses to which the rights-of-way 5 may be put by the City of St. Paul. ���nst A riaht-of-way user shall prompdy and at its own expense, with due regazd for seasonal working conditions, permanently remove and relocate its eqnipme�facilities in the � � - : - : �::- -.� �:�- a�: - .- - :.�� � -� . 1 = . ••: • : � . . :� . ..: . . : :.: . •:. • . : : : : :� :. : : - � - - .• . .:. :. . . . . : . . • . : . . .. . . . • . : .� , . :� . : � : .. . . . � . . � ... - : a :. : : . � 15 merel�for convenience of the city, in connection with: (ll a�resent or future local eovernment use of 16 the right-of-wa�for a public �roject; (2) the public health or safety: or (31 the safety and convenience 17 of erdirrmy travel over the right-of-way. 18 19 Notwithstanding the foregoing, a person shall not have to remove or relocate its eqni�nnent facilities 20 from any right-of-way which has been vacated in favor of a nongovernmental entity unless and until the 21 reasonable costs thereof aze first paid to the person therefor. 22 23 Sec. 116.12. Preexcavation eqnipmex�f facilitv location. 24 25 In addition to complying with the requirements of Minn. Stat. §§ 216D.01-.09 ("one call excavation 26 notice system") before the start date of any right-of-way excavation, each registrant who has ec�ipnrenf 27 facilities located in the area to be excavated shall mark the horizontal and approximate vertical 2$ placement of all said eqrrigmentfacilities . 29 30 Any registrnnt neht-of-wav user whose ectnigme� facilitv is less than twenty (20) inches below a 31 concrete or asphalt surface shall notify and work closely with the excavation contractor in an effort to 32 establish the exact location of its ec�niPment facilitv and the best procedure for excavation. 33 34 35 36 37 38 39 40 41 Sec. ll6.13. Damage to other ec�ipmerrt facilities. When the department performs work in the right-of-way a�r�gtiblie-prajeet and finds it su ort, or move a .PP,.._ ___ order to rotect -P� . . �.- as�ess,the costs associated therewith wfiich';will be billed to that registrant ev rson and must be paid within thirty (30) days from the date of billing. 15 ao -ac�' 1 Each registr�nt ep rson shall be responsibie for the cost of repairing any equipment or facilities in the 2 right-of-way which it or its equipment damages. Each re�t ep rson shall be responsible for the cost 3 of repairing any damage to the equipment or facilities of another regish�ant ep rson caused during the 4 city's response to an emergency occasioned by that ' erson's equipment or facilities. 5 Sec. 116.14. Right-of-way vacation. 7 8 If the city vacates a right-of-way which contains the ee�cri�nnent facilities of a registrant rieht-of-way user 9 and if the right-of-wav vacation does not require the relocation of the ri hg t_of_ 10 wa u�ser's ec�ttilnrtent facilities, the city shall, except when it would not be in the public interest, reserve 11 ., to and for itself and all registrants rieht-of-waXusers having ee�nipment 12 facilities in the vacated right-of-way, the right to install, maintain and operate �facilities in 13 the vacated right-of-way and to enter upon sueh the right-of-way at any time fi�-the-purpase-af to 14 reconstructimg, inspecting, maintaining or repairirtg the facilities same. 15 16 17 18 19 20 21 22 23 2�} 25 26 27 If the citv vacates a rieht-of-way that contains the facilities of a ri�ht-of-wav user and the vacation requires the relocation of the rieht-of-way user's facilities, pavment of the relocation costs must be deternuned as follows:; �n� (a) if the vacation proceedings aze initiated by the rieht of way user, the r�ht of way user must pay the relocation costs; or (b) if the vacation proceedings aze initiated by the city for a public proiect, the ri�ht of wa,�} user must pay the relocation costs unless otherwise agreed to by the ciry and the right of way user; or (c) if the vacation proceedings are initiated bq for the purpose of benefiting a person arpersax�s other than the rieht of way user, � the benefited person erpersans must pay the relocation costs. Sec. 11615. Indemnification and liability. 28 By reason of the acceptance of a registration or the grant of a right-of-way pemut, the city does not 29 assume any liability (a) for injuries to persons, damage to property, or loss of service claims by parties 30 other than the registrant or the city, or (b) for claims or penalties of any sort resulUng from the 31 installation, presence, maintenance, ar operation of equipment or facilities by registrants or activities of 32 registrant. 33 34 35 36 37 38 39 40 41 By , By accepting a pemut under Chapters 116 and 135 a registrant pemvtfee is required, to defend, indemnify, and hold the city whole and harmless from all liabilitv or claims of liabilitv for bodilv injury or death to persons, or for property dama�e, in which the claim: (Al alle�es a ne�ligent or otherwise wroneful act or omission of the reQistrant or its em�lovee, agent or independent contractor in installing, maintainin , or repaizin� equipment or facilities; and alleges that the city is liable, without alle in� anv independent ne�ligent, or otherwise wrongful act or omission on the part of the city: or B) is based on the city's ne�l�i e¢ nt or otherwise wroneful act or omission in issuin� the pemut or in failin t�o properlv or adequately inspect or �� oo-ac� . -. . .. . ., ,.-. -.- ,. . :. . ., , ::, : :, . . : :, . . . . . :., : :, :. .:,, . .. . : :. . . :. . :. . . :, ,. : :, • : . . :� . : , . � .. . . : :. : :� .. : : . . . . . . � ,�. � 7 3tThe re isg trant further agrees that it will not bring, nor cause to be brought, any action, suit or other 8 proceeding claiming damages, or seeking any other relief against the city for any claim nor for any 9 award arising out of the presence, installation, maintenance or operation of its equipment or facilities, or 10 any activity undertaken in oraear a uu lilic right-of-way, whether or not the act or omission complained 11 of is authorized, allowed or prohibited by a right-of-way permit. 12 13 The foregoing does not indemnify the city for its own negligence except for losses or claims occasioned 14 bv the negli�ent or otherwise wrongful act or omission of the citv to the extent authorized in part (B) of 15 this section re¢ardina the issuance of a pernut or the inspection or enfarcement of compliance with the 16 pernut; or when othenvise provlded in an applicable franchise aereement. ' 17 , > 18 , 19 , , , . 20 21 This section is not, as to third parties, a waiver of any defense or immunity otherwise available to the 22 registrant, or to the city; and the registrant, in defending any action on behalf of the city, shall be entitled 23 to assert in any action every defense or immunity that the city couid assert in its own behalf. 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 Sec. 116.16. Puture uses. In placing any equipment ar facilities, or allowing it to be placed, in the right-of-way, the city is not liable for any damages caused thereby to any regis�'s eeiuipment facilities which is are already in place. No regish e�rson is entitled to rely on the provisions of Chapter 116 or 135, and no special dury is created as to any regish�xnt e�rson. Chapters 116 and 135 are enacted to protect the general health, welfaz'e and safety of the public at luge. Sec. 116.17. . Discontinued operations. A registrant who has determined to discontinue all or a portion of its operations in the city must either� {}�Pprovide information satisfactory to the director that the registranYs obligations for its ec�uiPnxent facilities in the right-of-way under this chapter and Chapter 135 have been lawfully assumed by another registrant; or the ci . Sec. 116.18 . Abandoned facilities. 17 no -a cP' 1 Any registrant who has abandoned facilities in any nght-of-wav shall remove it from that riQht-of-wav if 2 required in conjunction with other right-of-watirepair excavation or consuuction or as otherwise 3 required bv law, unless this requirement is waived bv the director. 4 C� 9 1� 11 12 13 14 15 16 �s .. . : :� . : . ... .� : . , . : ,.. �. . . . . . :. . : . . : � : . .. . :� inae� r.wt:in i:i:i:nn ni i iw I ��b � :� - :� - -i.• •" i _..� � �1� \\4�I���1�111�F11M•J�.l�rU1�l�JLL�A� ��PI�P������r1��O1�1���A71�A1�U\�l���l•f4�.�J�I�J�/�l�AU4� : . . . :� : :� : . . . .:� : : . : . •• . � :� :� . . : . . : : . :.:� :: : = .: .. : : . . . : : . ��..� . : : : :. .. . : : � : . :.: -:� .. .. : . :�. - .. . . :. . :� . � : :.. :. : : : : :. .• . . .� . .• 1 :� - . - . : .. : . . : . • : : 21 22 23 24 25 26 : . . : .. : : . . :. :. . : ; .... :. . . _ : •�: :. - : . � :. :.• : . Sec. 116.1$9. Reservation of regulatory and police powers. 27 The city by the granting of a right-of-way permit, or by registering a person under sections ll6.05 28 through 116.07, does not surrender or to any extent lose, waive, impair, or lessen the lawful powers 29 and rights, which it has now or may be hereafter vested in the city under the Constitution and statutes of 30 the State of Minnesota and under the Charter of the City of Saint Paul to regulate the use of the 31 right-of-way by the permittee; and the pernuttee by its acceptance of a right-of-way permit or of 32 registration under sections 116.05 through 116.07 must agree that all lawful powers and rights, 33 regulatory power, or police power, or otherwise as are or the same may be from time to time vested in 34 or reserved to the city, shall be in full force and effect and subject to the exercise thereof by the city at 35 any time. A permittee or registrant is deemed to acknowledge that its rights are subject to the regulatory 36 and police powers of the city to adopt and enforce general ordinances necessary to the safety and 37 welfare of the public and is deemed to agree to comply with a11 applicable general laws and ordinances 38 enacted by the city pursuant to such powers. 39 40 Any conflict between the provisions of a registration or of a right-of-way permit and any other present 41 or future lawful exercise of the city's regulatory or police powers shall be resolved in favor of the latter. �.'.� ao _a� 0 10 11 12 13 14 15 16 17 18 19 Sec. 116.i Severabiliry. If any section, subsection, sentence, clause, phrase, or portion of this chapter or Chapter 135 is for any reason held invalid or unconstitutional by any court or administrative agency of competent jurisdiction, such portion shall be deemed a sepazate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof. If a regulatory body or a court of competent jurisdiction should detemune by a final, nonappealable order that any pemut, right or registration issued under Chapters 116 and 135 or any portions of these chapters is illegal or unenforceable, then any such pezmit, right or registration granted or deemed to exist hereunder shall be considered as a revocable permit with a mutual right in either party to ternunate without cause upon giving sixty (60) days written notice to the other. The requirements and conditions of such a revocable pezmit shall be the same requirements and conditions as set forth in the pernut, right or registration, respectively, except for conditions relating to the term of the permit and the right of temunation. If a pernut, right or registration shall be considered a revocable pemut as provided herein, the pernuttee must acl:nowledge the authority of the city council to issue such revocable permit and the power to revoke it. Sec. 116.261. Board of water com�missioners; city. 20 Notwithstanding anything to the contrary in this Chapter ll6 or in Chapter 135 of the Legislative Code, 21 the board of water commissioners established pursuant to 1885 Minn. Laws, Ch. 110, may, at its 22 discretion, satisfy requirements for the posting of a bond by written undertaking which obligates said 23 board as a surety with respect to such requirements. The said boazd may also, at its discretion, satisfy 24 requirements for obtaining and maintaining insurance by written undertaking obligating said board to the 25 city as required in said chapters, provided, however, that such undertaking need not waive liability limits 26 or defenses available to it as a body corporate and politic organized and existing under the laws of 27 Minnesota. The city is excepted from the insurance and bonding requirements of these chapters. 28 29 30 31 32 33 34 35 3b 37 38 39 40 41 section 2. L,egislative Code Chapter 135, is hereby amended to read: Chapter 135. Right-of-Way Pemuts Sec. 135.01. Purpose. In order to provide for the heaith, safety and well-being of its populace as it uses the up blic rights-of-way, as well as to ensure the structural integrity of its rights-of-way, the city desires to minimize the number of obstructions and excavations taking place thereon. The purpose of this chapter is to regulate obstructions of and excavations in the rights-of-way by providing, among other things, for the issuance of pernvts granting authority to obstruct or excavate 19 po-a�P' � 10 il 12 13 14 15 16 therein and by providing for the subsequent restoration of the rights-of-way. The findings and purpose statement in Chapter 116 is hereby incorporated in and adopted as part of this chapter. Sec. 135A2. Definitions. The definitions found in section 116.02 of the St. Paul L,egislative Code (hereinafter, "I.egislative Code") apply to this chapter. 5ec. 135.03. Pernut requirement. Except as otherwise provided in the Legislative Code, no person may obstruct ar excavate any right-of-way without first having obtained � the appropriate right-of-wav permit from the department to do so. 17 (1) Excavation permit. An excavation pernut is r�ed to excavate 18 that part of the right-of-way described in such pernut and to hinder free and open passage over the 19 specified portion of the right-of-way by placing equipment described therein, to the extent and for the 20 duration specified therein. 21 22 (2) Obstruction pernut. An obstruction permit is r uired to hinder 23 free and open passage over the specified portion of right-of-way by placing equipment described 24 therein on the right-of-way for the durauon specified therein. 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 No person may excavate or obstruct the right-of-way beyond the date ar dates specified in the permit unless � such person {'rj makes a supplementary application for another right-of-way pernut before the expiraUon of the initial permit, and (ii) a new pernut or pernut extension is granted. Pernuts issued under this chapter shali be conspicuously displayed at all Umes at the indicated work site and sha11 be available for inspection by department inspectors and authorized city personnel. Sec. 135.04. Permit applications. Application for a permit is made to the director. Right-of-way pernut applications shall contain, and will be considered complete only upon compliance with, the requirements of the following provisions: (1) Registration with the departznent pursuant to Chapter 116. � ao-ace' 9 10 11 12 13 14 15 16 17 18 19 20 (2) Submission of a completed permit applicauon form, including all required attachments, and scaled drawings showing the location and azea of the proposed project and the location of all existing and proposed equigment facilities. (3) Payment of all money due to the city for: a. Prior obstructions or excavations; b. Any loss, damage, or expense suffered by the ciry as a result of applicanYs prior excavations or obstructions of the rights-of-way or any emergency actions taken by the ciry; c. ��5� Pernut fees and costs d. Any franchise fees in arreazs, due, owing and unpaid. � i � • ' ' - i � - ' - i i • � � i ' i ' : i i i - - i � � - � • • .. � • • �- � - .� � : ::: : :� . . Sec. 135.05. Issuance of pernut; conditions. 21 If the director deternunes that the applicant has satisfied Yhe requirements of Chapters 116 and 135, the � ���;, .� ,_, 22 director ma}�i� . I issue a permit. Such permits may, in the discretion of the director, be issued as 23 'barious location" pernuts, with or without conditions as provided in this section. 24 25 The director may impose reasonable conditions upon the issuance of the pernut and the performance of 26 the applicant thereunder in order to protect the public health, safety and welfare, to insure the structural 27 integrity of the right-of-way, to protect the property and safety of other users of the right-of-way, and 28 to minimize the disruption and inconvenience to the traveling public. Without limiting the foregoing, the 29 director, to protect the public health, safety and welfare, to insure the structural integrity of the 30 right-of-way, to protect the property and safety of other users of the right-of-way, and to minimize the 31 disruption and inconvenience to the traveling public, shall develop permit conditions that provide 32 reasonable assurance that uUlities and/or their contractors working in the right-of-way are competent 33 and qualified. These permit conditions shall include, but not be limited to, instruction in state and local 34 35 36 37 38 39 40 41 laws, including one-call, construction zone traffic safety, and construction standards, including restoration standards. Sec. 135.06. Permit fees. (a) Excavation permit fee. The excavation permit fee sha11 be in an amount sufficient to recover the following costs if a�licable: 21 oo-ar.8' 2 3 4 6 7 (1) The city mana�ement cost; arcd � The dismptive cost; . � • .. . :� : :� � : = : . . : : . :.. . � : � - .-• .. . . . . . : . :. . ; . � : ;: . . .. .: : � . :. : . . . : . 1 .. : . • . : . .: : : . . . : :� :� .... . . :. : : : : : . 13 14 15 16 17 18 19 20 2l (b) Obstruction pemut fee. The obstruction pernut fee shall be in an amount sufficient to recover the following costs if a�plicable: (1) The city mana ee ment cost; � � The disruptive cost; and (�3) The mapping data cost sqstem. 22 (c) Payment of permit fees. l�o excavation permit or obstruction pemut shall be issued without payment 23 of srreh excavation or obstruction permit fees, The 24 director may allow applicant siraH-agree to pay such fees within thirty (30) days of billing tkere€er. 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 (d) Computation of disruptive cost. The director shall determine the disruptive cost component of the fees for excavation and obstruction, and in doing so shall have the purpose of providing a financial incentive to pernuttees to minimize their obstruction and use of the right-of-way and to get in and get out of the right-of-way as quickly as possible. In aid of that purpose, the director shall use in the computation of the disruptive cost, to the extent practicable, economic and accounting principles relating to the quantification of the social costs resulting from street obstructions, including (1) losses to businesses and merchants which would not have occurred but for the obstructions, and (2) social costs to the users of the right-of-way resulting from traffic delays, diversions, disruption in services, missed or delayed appointments, and decline in quality of life. Fees may vary from one (1) location to another based on the size of the azea to be obstructed; tlae duration that the right-of-way or parts of it will be unavailable for public use and travel; the proximity of businesses and enterprises which rely in whole or in part on access by members of the public or the delivery of supplies or raw materials; the importance of the particular right-of-way as to the traveling public; the use of the particular right-of-way for emergency vehicles and the availability of altemate routes; the traffic volumes carried by the particular right-of-way; and the amount of vehiculaz, bicycle, and pedestrian traffic that is reasonably likely to be disrupted thereby. 22 00 -��8' (e) Use of permit fees. All obstruction and excavation pernut fees shall be used solely for city management, construction, maintenance and repair costs of the right-of-way. 4 (� �ransitian permit fees. pezmit fees for street usage, excavation and 5 obstrucrion =---`-`---- -- '�--'—'�-� '', '�"' pursuant to chapters 116 and 135, shall be proposed 6 by the director and established from time to time bv ciry council; 7 by resolution, . 8 9 10 11 12 13 14 15 16 17 18 19 (g) All permit fees shall be doubled during a probationary period. Sea 135.07. DelayPenaltv. In accordance with Minnesota Rule 7819.1000 sub�. 3, the Director shall impose a delay penaltv for unreasonable dela�s in riQht-of-way excavation, obstruction, patchin¢, or restoration b�permitee. The delav penaltv shall be proposed bv the Director and established from time to time bycitv council resolution. Sec. 135.0�8. Right-of-way �atching and restoration. 20 The work to be done under the permit, and the patching and restoration of the right-of-way as required 21 herein, must be completed within the dates specified in the pernut, increased by as many days as work 22 could not be done because of circumstances consUtuting force majeure or when work was prohibited 23 as unseasonal or unreasonable under this chapter. s�A: In addition to patchingits own work, 24 the pernuttee must restore the general area of the work, and the surrounding azeas, including the paving 25 and its foundaUons, to the same condition that existed before the commencement of the work�sf 26 - 27 - `��. 28 29 30 31 32 33 34 35 36 37 38 39 40 41 In its application for an excavation pernut, the pernuttee may choose either to have the city restore the right-of-way or to restore the right-of-way itself. (1) City restoration. If the city restores the right-of-way, i� �ernuttee shall pay the costs thereof within thirty (30) days of billing. If, - following such restaration, the �tek pavement settles due to permittee's improper backf'illang, the permittee shall pay to the city, within thirty (30) days of billing, . all costs associated with correcting the defective work. (2) Pernuttee restoration. If the permittee _ ��o restores the right-of-way itself, it shall at the Ume of application of an excavation permit: �• . �" � �• � n � G - - i •� � i - • � •- "• ' - i - i - - "i" 23 oo-aG8' . -- . . . - :.. . - - . - . �. �. . . . . �: ' i - • - i i - i . i � • � - ' � - � :� . - ..� - " i • • :r: �' ��- i � - •- - i �� - �i :� •' - - 'i 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 � : n d� - i• .:�' • " i � - : i - � �i •� i � "i� -�" � •-- : _ : , . :� . : : . .: . � . . ;. : . . : . . . The pernuttee shall perform tlre�zark excavation, backfillin�patchin� and restoration according to the standazds and with the materials specified by the director. The director shall have the authority to prescribe the manner and extent of the restoration, and may do so in written procedures of general application or on a case-by-case basis. The director in exercising this authority shall be guided by Minnesota Rules 7819.1100. . , � , , - - , - - D - - > VJIU��UIV ��t�l\'i'IYlti�� t�lbr� Methods of restoration may include, but are not limited to, patching, replacement of the right-of-way base, and milling and overlay of the entire area of the right-of-way affected by the wark. 26 - - , 27 - . - - , The permittee 28 shall correct defects in patching, or restoration performed by permittee or its agents. Pernuttee, upon 29 noUfication from the department, shall correct all restoration work to the extent necessary, using the 30 method required by the department. Said work shali be completed within five (5) working days of the 31 receipt of the notice from the department, not including days during which work cannot be done 32 because of circumstances constituting fozce majeure or days when work is prohibited as unseasonal or 33 unreasonable under seetieiri3�:}� Cha�ters ll6 and 135. 34 35 If the permittee fails to restore the right-of-way in the manner and to the condition required by the 36 department, or fails to satisfactorily and timely complete all re�xirs restorations required by the 37 department, the department at its option may do such work. In that event the pemuttee shall pay to the 38 city, within thirty (30) days of billing, the cost of restoring the right-of-way. 39 40 If the �emuttee elects not to restore the public ri�ht-of-way, the director shall impose a degradation fee. 41 However the right-of-wa� user shall remain re�onsible for patching, and the dearadation fee shail not 24 00 - �cr 2 4 5 include the cost to accom�lish these responsibilities. Sec. 135.0$9. Joint applications. Registrants may jointly make application for permits to excavate or obstruct the right-of-way at the same place and time. 7 8 Registrants who join in and during a scheduled obstruction or excavation performed by the department, 9 whether or not it is a joint application by two (2) or more registrants or a single application, are not 10 required to pay the obstruction and degradation portions of the pemut fee. 11 12 Registrants who apply for permits for the same obstruction or excavation, which is not performed by 13 the department, may share in the payment of the obstruction or excavation pemut fee. Registrants must 14 agree among themselves as to the portion each will pay and indicate the same on their applications. 15 16 Sea 135.6910. Supplementary applications. 17 18 A right-of-way pemut is valid only for the azea of the right-of-way specified in the pernut. No pernuttee 19 may perform any work outside the area specified in the pernut, except as provided herein. Any 20 pernuttee which detemnines that an area greater than that specified in the permit must be obstructed or 21 excavated must, before working in that greater area: (i) make application for a pernut extension and pay 22 any additional fees necessitated thereby, and (ii) be granted a new permit or permit extension. 23 24 A right-of-way pernut is valid only for the dates specified in the pernut. No pernuttee may begin its 25 work before the pernut start date or, except as provided herein, continue working after the end date. If 26 a pemuttee does not finish the work by the pern�it end date, it must make application for a new pernut 27 for the additional time it needs, and receive the new permit or an extension of the old permit before 28 working after the end date of the prevlous pernut. This supplementary application must be daixe 29 aDqroved before the permit end date. 30 31 32 33 34 35 36 37 38 39 40 41 Sec. 135.161. Other obligations. Obtaining a right-of-way permit does not relieve pernuttee of its duty to obtain all other necessary permits, licenses, and authority and to pay all fees required by any other city or other applicable ; , , rules, laws or regulations. A permittee shall comply with all requirements of local, sfate and federal laws, including Minn. Stat. §§ 216D.01-.09 ("one call excavation notice system"). A permittee shall perform all work in conformance with all applicable codes and established rules and regulations, and is responsible for all work done in the right-of-way pursuant to its permit, regazdless of � p a -a��' G� 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 who performs the work. Except in the case of an emergency, and with the approval of the director, no right-of-way obstruction or excavation may be performed when seasonally prohibited or when conditions are unreasonable for such work. A pemvttee shall not so obstruct a right-of-way that the natural free and clear passage of water through the gutters or ottaer waterways shall be interfered with. Private vehicles may not be parked within or adjacent to a pernut azea. The loading or unloading of trucks adjacent to a pernut azea is prohibited unless specifically authorized by the pemut. Sec. 1351�2. Denial of permit. (a) Mandatory denial. Except in the case of an emergency, no right-of-way pernut will be granted: (1) To any person required bq-��eetian-i3-GB5 to be registered who has not done so; (2) To any person required bY`�eetie�Kr.9& to file an annual report but has failed to do so; (3) For any next-year project not listed in the construction and major maintenance plan required under seetien chapter 116$8S"reportin� obli�ations"l; (4) For any project which requires the excavation of any portion of a right-of-way which was constructed or reconstructed within the preceding five (5) years; (5) To any person who has failed within the past three (3) years to comply, or is presently not in full compliance, with the requirements of Chapters 1 l6 and 135; (6) To any person as to whom there exists grounds for the revocation of a pernut under seefien chapter 135.� 39 (b) Permissive denial. The director may deny a pernut in order to protect the public health, safety and 40 welfaze, to prevent interference with the safety and convenience of ordinary travel over the 41 right-of-way, would cause a conflict or interfere with an exhibition, celebration, festival, or an o� 26 � . . : :� . - .: . . � : ., .:� .: ��:.: :. . : . . . . •:. . � : : : 00 -scr � 0 10 11 12 13 event, or when necessary to protect the right-of-way and its users. The director, in her or his discretion, may consider one (1) of more of the following factors: the extent to which right-of-way space where the permit is sought is available; the competing demands for the particulaz space in the right-of-way; the availability of other locations in the right-of-way or in other rights-of-way for the equi�nnerr� facilities of the permit appiicant; the applicability of ordinance or other regulations of the right-of-way that affect location of equipme� facilities in tl�e right-of-way; the degree of compliance of the applicant with the terms and conditions of its franchise, Chapters 116 and 135, and other applicable ordinances and regulations; the degree of disruption to surround'ang communities and businesses that will result from the use of that part of the right-of-way; the condition and age of the right-of-way, and whether and when it is scheduled for total or partial reconsuuction; and the balancing of the costs of disruption to the public and damage to the right-of-way, against the benefits to that part of the public served by the expansion into additional parts of the right-of-way. 14 (c) Discretionary issuance. Notwithstanding the provisions of sections 135.1�2(a)(3) and 15 135.142(a)(4), the director may issue a pernut in any case where the permit is necessary (a) to prevent 16 substantial economic hardship to a customer of the pemtit applicant; or (b) to allow such customer to 17 materially improve its utility service; or (c) to allow a new economic development project; and where 18 the pernut applicant did not have knowledge of the hazdship, the plans for improvement of service, or 19 the development project when said applicant was required to submit its list of next-yeaz projects. 20 21 22 23 24 25 26 27 28 (d) Pernuts for additional next-year projects. Notwithstanding the provisions of this chapter seetian �33cHH�jf3} the director may issue a pernut to a registrant who was allowed under seetien chapter ll6�${ej to submit an additional Next-yeaz project, such pemut to be subject to all other conditions and requirements of law, including such conditions as may be imposed under seetian cha�ter 135:65. Sec. G135'13) Appeal 29 A right-of-way user that: (1) has been denied registration; (21 has been denied a pernut; (3) has had a 30 permit revoked; or (4) believes that the fees im�osed are invalid, mayhave the denial, revocation, or 31 fee imposition reviewed, u�on written request, bv the citv council. A decision bv the citv council 32 affirming the denial, revocation, or fee imposition shall be in writing,and supported by written findinQs 33 establishins the reasonableness of the decision. 34 35 36 37 38 39 40 41 Sec. 135.1�4. Installation requirements. The excavation, backfilling, patching, restaration, and ali other work performed in the right-of-way shall be done in conformance with "The Standard Specifications for Street Openings" as promulgated by the director, Minn. Rules 7819.1100 and 7819.5000, and at a location as required by seetiair i�6-1� this code. 27 oc-ab� 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Sec. 135.135.Inspection. When the work under any permit hereunder is completed the pemuttee.as authorized by Minn. Rules Part 7819.1300 shall �q submit a completion certificate to the director at tt�e time the project is com�leted. The completion statement. sianed by a nerson desi¢nated by the ri¢ht-of-wav user as a responsible emplovee, shall show the com�letion date for the work performed, identify the installer and designer of record, and certify that the work was completed accordine to the requirements of the director Pernuttee shall make the work-site available to the department inspector and to all others as authorized by law for inspection at all reasonable times during the execution and upon completion of the work. At the time of inspection the department inspector may order the immediate cessation of any work which poses a serious threat to the life, health, safety or well-being of the public. The department inspector may issue an order to the registr�rct pernrittee for any work which does not conform to the applicable standards, conditions or codes. The order shall state that failure to conect the violation will be cause for revocation of the pernut. Within ten (10) days after issuance of the order, the registr�rf �ernuttee sha11 present proof to the director that the violation has been corrected. If such proof has not been presented within the required time, the director ma� revoke the permit�ursn�te : . Sea 135.1�6. Work done without a permit. (a) Emergency situaUons. Each registrant shail immediately notify the director or the director's designee of any event regazding its ec�cupmenf facilities which it considers to be an emergency. The registrant may proceed to take whatever actions aze necessary in order to respond to the emergency. Within two (2) business days after the occunence of the emergency, the registrant shall apply for the necessary pernuts, pay the fees associated therewith and fulfill the rest of the requirements necessary to bring itself into compliance with Chapters 116 and 135 for the actions it took in response to the emergency. 32 In the event that it becomes awaze of an emergency regarding a registrant's equipment ar facilities, the 33 department may attempt to contact the local representative of each registrant affected, or potentially 34 affected, by the emergency. In any event, the department may take whatever action it deems necessary 35 in order to respond to the emergency, the cost of which shall be bome by the registrant whose 36 equipment or facilities occasioned the emergency. 37 38 39 40 41 (b) Nonemergency situations. Except in the case of an emergency, any person who, without first having obtained the necessary permit, obstructs or excavates a right-of-way must subsequently obtain a permit, pay double the normal fee for said pernrit, pay double all the other fees required by the L.egislative Code, deposit with the departrnent the fees necessary to correct any damage to the m ao - a6P' 2 4 5 6 7 right-of-way and comply with all of the requirements of Chapters 116 and 135. Sec. 135.157. Supplementary notification. If the obstzuction or excavation of the right-of-way begins later or ends sooner than the date given on the pernut, permittee shall notify the department of the accurate information as soon as this information is known. 9 If the obstruction of a right-of-way is of a shorter duration than that estimated on the permit application, 10 the department will, upon request, refund or credit to the permittee a proportionate amount of the 11 permit fee. 12 13 Sec. 135.1b8. Revocauon of pernuts. 14 15 Registrants hold pernuts issued pursuant to the I,egislative Code as a privilege and not as a right. The 16 city reserves its right, as provided herein, to revoke any right-of-way permit, without fee refund, in the 17 event of a substantial breach of the terms and conditions of any statute, ordinance, rule or regulation, or 18 any condition of the pemut. A substantial breach by permittee shall include, but shall not be limited to, 19 the following: 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 (1) The violation of any material provision of the right-of-way pernut; (2) An evasion or attempt to evade any material provision of the right-of-way pernut, or the perpetration or attempt to perpetrate any fraud or deceit upon the city or its citizens; (3) Any material misrepresentation of fact in the application for a right-of-way pernrit; (4) The failure to maintain the required bonds and/or insurance; (5) The failure to complete the work in a timely manner; or (6) The failure to correct a condition indicated on an order issued pursuant to this chapter seeti�n i3�3; (7) Hiring illegal aliens; (8) Failing to report damage to other utilities; (9) Failing to report injuries. If the director deternunes that the permittee has committed a substantial breach of a term or condition ►�S �a -acY 1 of any statute, ordinance, rule, regulation or any condition of the permit, the director shall make a 2 written demand upon the pertnittee to remedy such violation. The demand shall state that continued 3 violations may be cause for revocation of the permit. Further a substantial breactL as stated above, will 4 allow the director to place additional or revised conditions on the permit. 10 11 12 13 14 15 16 17 18 19 20 21 Within twenty-four (24) hours of receiving notification of the breach, permittee shall contact the director with a plan, acceptable to the director, for its correction. Pernuttee's failure to so contact the director, or the pernuttee's failure to submit an acceptable plan, or permi[tee's failure to reasonably implement the ap�roved Dlan, shall be cause for immediate revocation of the permit. Further, pernuttee s failure to so contact the director, or permittee s failure to submit an acceptable plan, or pemuttee's failure to implement the approved plan, shall automatically place the permittee on probation for one (1) full year. From time to time, the director may establish a list of conditions of the permit which, if breached, will automatically place the permittee on probation for one (1) full yeaz, such as, but not limited to, working out of the allotted time period, working on right-of-way grossly outside of the permit, failing to report utility hits, failing to report injuries or hiring illega] aliens. If a pernuttee, while on probation, commits a breach as outlined above, pernuttee's pertnit will automatically be revoked and permittee will not be allowed further permits for one (1) full year, except for emergency repairs. 22 If a pernut is revoked, the pernuttee shall also reimburse the city for the city's reasonable costs, 23 including restoration costs and the costs of collection and reasonable attorneys' fees incurred in 24 connection with such revocation. 25 26 Sec. 135.1�9. Nonexclusive remedy. 27 28 The remedies provided in this chapter and in Chapter 116 and other chapters in the Legislative Code 29 aze not exclusive or in lieu of other rights and remedies that the city may have at law or in equity. The 30 city is hereby authorized to seek legal and equitable relief for actual or threatened injury to the public 31 rights-of-way, including damages to the rights-of-way, whether or not caused by a violation of any of 32 the provisions of this chapter or other provisions of the L.egislative Code. 33 34 35 36 30 � � ORiGINAL 1 2 3 4 5 6 7 8 9 10 li 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00 -xr Section 3 This ordinance is effective 30 days after its passage, approval and publication. a fl ���II.��:l9► Adoption Certified by Council Secretary By: Approved by May� nate By: /_// Requested by Department of: ��_ Public Works � � By: � Form Approved by Ci y At Y sy: '�_ a� � ' � 3. � . oc� �.�-- Approved bY Mayor for Submission to Council By: l/' A�''^� 'J c��1'Q 33° 3r Adopted by Council: Date �-��� `_� �� v DEPARTMENT/OFFICE/COUNCIL DATE I ITIA / 102715 PublicWorksDepartment 2 u o GREEN SHEE� CANTACT PEflSON & PF10NE � INITIAUDATE �DEPAHiMENT ECTOR ❑4 CRYCIXINCIL homasKuhfetd 266-6111 Nu ���A-R�°�'� ❑cmc�wK M BE ON COUNqLA BY�NQ;� (� p pOUi1NG I� g�prE7 DIREGTOR ❑ FlN. & MGT. SERVICES Dlfl. � o�,��,��,��� ❑ AL�OFSIGWITUHEPAGES 1 (GLIPALLLOCAli0N5FOR51GNA7LflE) uASSIX:IATE uDEPT.ACCAUNfANT ON REQUFS7ED pproval of the attached Righi-of-Way management ordinance. aECOntMENDAnOnS: appmve (A) or Rejeu (a) pEpgpNAL SERVICE CONiRACTS MUS7 ANSWER THE FOLLOWING QUESTIONS: PLANNINGCOMMISSION _GVILSERVICECOMMISSION 1. HasthispersoNfirtneverworkedunderacontrac[forthisdepartment? CIBCAMMmEE YES NO — — 2. Has this persoNfirtn ever been a ciry employee? A sraFF _ YES NO DIS7RiCr CoUNa� 3. Does this person/firtn possess a sWll �oi nortnally possessed by any curtent ciry employee? — — YES NO SUPPOFTS WM�CH COUNCIL OBIECTIVE? Explain all yes answers on separate sheet and aifach to gree� sheet INfTIAl1NG PROBLEM, ISSUE, OPPORTUNITY (WHO, WHAT, WHEN, WHERE, WHh: State legislation and Public Utility Commission rules adopted since current chapters 116 and 135 require changes in our legislative code to be compatible. The proposed changes were developed together with MinReapolis and the League of Minnesota Cities. ADVANrAGESIFAPPROVED: Chapters 116 and 135 of the Legislative Code will be more legaliy correct. In addition, undergrounding has been refined. � � y � //a. /G DISADVAMAGES IF APPROVED. More above ground facilities will be constructed. ��:,=�;; �� y ,•e, �;����.��� ���..> �ir�i� �} i L�1'�.��'ii iY✓� '�sv'� - y .i " . :'1 p 5' 1.G �Yi.<� at T C : § .i� � �a N `:�v' : i 4 1 � ♦ � DtSADVAMAGES IF NOT APPfipVED Chapters 116 and 135 of the Legislative Code will not reflect recent State legislation and Public Utilities Commission rules. Telecommunications and Cable companies will have problems upgrading their service. �av�h � sSa��:^,.�4 ��?P�¢�� ���� � 6 ZQ�O OTALAMOUN70FTRANSACTION$ NotApplicable COST/REVENUEBUDGE7ED(C�RCLEON� YES No FUNDING SOUFiCE ACINfTY NUMBER FINANCIAI_ INFOFMATION: (EXPLAIN) OR1GiNAL Council File # o� — 3Gp' Ordinance # Green Sheet # 0 2 � F S ORDINANCE CITY OF SAINT PAUL, MINNESOTA Presented $y Referred To _ Date 33 An ordinance amending I,egislative Code Chapters 116 and 1 provide for regulation of the public right-of-way. THE COUNCIL OF THE CITY OF section 1 Legislative Code Chapter 116, i� Chapter 116. Right-of-Way Administration Sec. 116.01. Findings and purpose. the Saint Paul L.egislative Code to ��1� � • � • 1� amended to read: In order to provide for the health, s ety and weil-being of its citizens, as well as to insure the structural integrity of ats streets and the use f the ublic rights-of-way, the city strives to keep its rights-of-way in a state of good repair and free f m unnecessary encumbrances. Although the general population beazs the fanancial burden for the u eep of the rights-of-way, a primary cause for the early and excessive deterioration of its rights-of ay is their frequent excavation by persons whose equipment is located therein. Right-of-way obstructi n is a source of loss of business to merchants and others whose places of business aze located eazby and a cause of frustration for the general population which must avoid these obstruc6ons or ch ge travel or shopping plans because of them. Persons whose equipment or facilities are is located wi n the right-of-way are the primary cause of these frequent obstructions. The city reco izes that it holds the rights-of-way within its geographical boundaries as an asset in trust for its citize s. The city and other public enUties have invested millions of dollazs in pubiic funds to build and maint n the right-of-way. It also recognizes that some persons, by placing their equipment or facilities n the right-of-way and chazging the citizens of the city for goods and services delivered thereb , are using this property held far the public good. Although such services aze often necessary or , 1 00 • ��r convenient for the citizens, such persons receive revenue and/or profit through their use of public property. The city finds that to protect the public health, safety, and welfare, and to protect the public right-of-way and its current use, it is necessary for the city to detercnine the competence and qualifications of the persons who perform the actual excavation of the right-of-way, installauon of facilities, and restoration of the right-of-way, at the request of, and on behalf those persons who wish to place facilities in the public right-of-way. The lack of competence and qu ification of petsons who work in the right-of-way has caused substantial public inconvenience, sub antial safety risks for the public, and has unduly restricted public use of the right-of-way. In response to the foregoing facts the city hereby enacts new Legislative Code relating to right-of-way permits and admini necessary revisions to other Code provisions and--an-erdinane s 116 and 135 of the St. Paul together with an ordinance making €ranehise: These ordinances impose reasonable regulations o the placement and maintenance of equipment or facilities currenfly within its rights-of-way or o be placed therein at some future time. Under these ordinances, persons disturbing and obstructi g the rights-of-way will beaz a fair share of the financial responsibility for their integrity. Finally, ese ordinances provide for recovery of out-of-pocket and projected costs from persons usin the public rights-of-way. 2 bo•�t.Y � UI��LLaIl9�IGV �Yl.�a�41t�A7RUI��I.Cls��r��t�l��w1� �lU U Ol �S r U lU � lU � � Al�l � l �1 �l � \\�A1�1 \'l�. � 1 � ' • • • � � �� � � � ��� • � � • � • • �� � � • N • � • %11�11R�1�lJ�IGV�SlY �� The findings in the purpose statement in Chapter 135 aze hereby incorporated in this chapter. � Sec. ll6.02. Aefinitions. adopted as part of The following definitions apply in both Chapters I 16 and 135 of the S nt Paul I,egislative Code (hereafter, "Chapters 116 and 135" or "these ordinances"). Referen s hereafter to "sections" aze, unless otherwise specified, references to sections in the Saint Pau gislative Code. Defined terms remain defined terms whether or not capitalized. (42) Applicant means any person requesting to excavate or obstruct a right-of-way. (�3) City means the City of St. Paul, (3� City mana ement cost means actual costs incurred by the city ms�perfarm all of the other tasks required by Chapters 116 � � oo-aLr under Minnesota Statutes, section 15.73, subdivision 3; d) letter of credit, in a form acceptable to the Director: el self-insurance, in a form acceptabie to the Director; and fl a blanket bond for �rojects wittun the City,_or other fornns of construction bond, for a time snecified and in a form acce�tabie to the Director. be required if the excavation or disturbance did not occur. Minnesota Rules 7819.9900 to 7819.9950. which equals the deeradation cost. obstruction, patchine. or restoration as established bv pernut. (� 10) Department means the department of public works � the ciry. (511) Department inspector means any person aut related to the provisions of Chapters 116 and 135. by the director to cany out inspections (612) D'uector means the director of the director's designee. of public works of the city, or her-arhis the (�13) Disruptive cost is the enal im sed as the result of mei�ants-and the adverse impact on ity citizens and others who are required to alter travel routes and times resulting from right-of-way o structions. ($14) Downtown business dist ' t means that portion of the City of Saint Paul lying within and bounded by the following streets: Beg' ning at the intersection of Shepard Road with Chestnut Street, Chestnut Street to Interstate Freewa SE, Interstate Freeway 35E to Interstate Freeway 94, Tnterstate Freeway 94 to Lafayette ridge, Lafayette Bridge to where the bridge crosses over W arner Road, Warner Road to Shep d Road, Shepazd Road to Chestnut Street. (H15) Emergency eans a condition that (a) poses a clear and immediate danger to life or health, or of a significant los of property; or (b) requires immediate repair or replacement in order to restore service to a customer � cc-a�Y (19G� Equipment means any tangible asset used to instail, repair, or maintain facilities in an� hg t-of- wav or which obstructs any rieht-of-wak -- , a. : . . (1�7) Excavate or Excavation means to dig into or in any way remove or physically dist,�irb or penetrate any part of a right-of-way. � (1�8) Excavation permit means the permit which, pursuant to Chapters 116 and 13fi, must be obtained before a person may excavate a right-of-way. An Excavation emut allows the h�ider to excavate that part of the right-of-wav described in such pernut. (13� Excavation pernut fee means money paid to the ciry by an applicant t cover the costs as provided in seetian Chapter 135.9fr. y�14iJ�Yr\• (i521) Local representative means the person or persons or designee of such person or persons, authorized by a registrant to accept service and to mak decisions for that registrant regarding all matters within the scope of Chapters 116 and 135. 22 Minnesota Rules means Minnesota Rules ublished b the Revisor of Statutes as the exis on June 1 1999 whether or not the are curr tl in force. (�6� Obstruct means to place any tang' le object in a right-of-way so as to hinder free and open passage over that or any part of the rig -of-way. (i�� Obstruction permit mean�e pernut which, pursuant to Chaptexs 116 and 135, must be obtained before a person may o truct a right-of-way. (i$�5) Obstruction pernut as provided in seetiert � � means money paid to the city by a regish� ermitee to cover the costs 5 00 -a�.Y (27) Pavement means anv type of improved surface that is within the public ri�ht-of-wav and that is paved or otherwise constructed with bituminous concrete, aggre at� e_or gravel. (�9� Permittee means any person to whom a pernut to excavate or obstruct a b anted by the city under Chapter ll 6 or 135. {�,829) Person means lmm�•�•.intn���r•wlu�:inn w�ii�tr.�u.ai:umnunn�au:r.n.ii.nr:uv��avuaUO�.�r Bl a social or charitable organization; and has been (�Y� Probation means the status of a person that has t complied with the conditions of Chapters 116 and 135. (z''�31) ProbaUonary period means one (1) yeaz f m the date that a person has been notified in writing that they have been put on probation. (z�332) Registrant means any person who ) has or seeks to have its equipment or facilities located in any right-of-way, or (2) in any way occ ies or uses, or seeks to occupy or use, the right-of-way or any equipment or facilities located in e right-of-way. (�33) Registration fee means mqfiey paid to the city bq-a-registra�rt to cover costs associated with reeistration. ` (36� Restore or estoration means the process by which an excavated erebshneted right-of-way and sunoundin ea, includingpavement and foundation. is returned to a-ee�ditien-wltiek spassibie the same condition that existed before the excavation. (z�35) R%�toration €ee cost means an amount of money paid to the city by a pernuttee to cover the cost � oo-a�P' of restoration. �Q�)�\�lJ�II�A���P�/lN���l�U�11HJ��b1�1�l�Jr��L�Ip1UI�Pl�Nl�l��PI �51�•������1�1�1��'L�IwT���1�� ��t�lU�pl�l AL IA �� � l�l � G � t �� ���%� \'I IR�1 � N1 l� (�936) Right-of-way or Public Right-of-way means the :� :� service. (3937) Right-of-way pernut means either the excavation rmit or the obstruction pernut, or both, depending on the context, required by Chapters 116 an 35. (3�i� Service or utility service incl Minn. Stat. § 216B.02, subds. 4 and svstem as defined prev 39A:$3-{�99�j 238; and those services provided by a public utility as defined in �; ( , , - > services of a telecommunications right-of-way ;(iii) i�e services of a cable communications in Minn. Stat. § ����.�.,.f�.A..� 1 U IRd�I �� IR�A7 �l lU•I N 1�.1�1•l l� 1 wL � Pl l (3�40} Suppleme tary application means an application made to excavate or obstruct more of the right-of-way allowed in, or to extend, an obstruction or excavation pernut that had already been issued. 7 oo-a� vu � � � n�� o�.� una � s.xn va.�� �.� � n w n+� wiu r. oii� an � w � u o n aw � r. win ao �� wt.� ab � m.i.i: u u �i u �n n w uii��iiinisn�:�nw�ii�iunru�R:iur.�n[nui��linn�nbu.�ti Sea 116.03. Administration. The director of the department of public works shall be the principal ttt cfty official responsible for the administration of the rights-of-way, right-of-way permits, and th � inances related thereto. The director may delegate any or all of the duties hereunder. Sec. 116.04. Utility coordination committee. There is hereby created a utility coordinaUon committe . This committee shall be voluntary and advisory to the director. It s� mav be composed of any regi rants that wish to assist the city in obtaining information and by making reco endations regazding ways to take greater responsibility for the right-of-way, and to impro e the process of performing construction work therein. by the director to any registrant making a Sec. 116.05. Registration and ri Notice of the meetings of such committee shall be given n request to the director to be so notified. occupancy. Each person who occupies, uses, o seeks to occupy or use, the right-of-way or any equipment or facilities located in the right-of- ay, or who has, or seeks to have, equipment or facilities located in any right-of-way shall register wit he department. Registration will consist of providing application information te as require by the director, , 0 oo-a�� . : . :, .. . :, . . .:. . . . . No person may construct, install, repair, remove, relocate, or perform any other work on, or equipment or facilitv or any part thereof located in any right-of-way without fust being regi the department. � .�.,, .............. .�, .....� , ......., Nothing herein or in Chapter 135 shall be construed to repeal or amend the ordinance pemutting persons to plant or maintain boulevard plantings or gz right-of-way between their property and the street curb. Persons planting o plantings or gardens shall not be deemed to use or occupy the right-of-w , to obtain any pernuts or satisfy any other requirements for planting or ain plantings or gazdens under this chapter or Chapter 135. Sec. 116.06. , . Reserved. Il�1�P�LL'�l��bl��IAfU�r 5` Sec. 116.07 The information. with pr isions of a ciry r ens or in the azea of maintaining boulevard and shall not be required aininQ such boulevard provided to the department at the time of registration shall include, but not be limited to: G] 00 - a c.�- 1 {1} Each registrant's name, Gopher State One-Call registration certificate number, address and e- 2 address if applicable, and telephone and facsimile numbers. 3 4 (2) The name, address and e-mail address, if applicabie, and telephone and facsimile numb rs of a lceal 5 representative. The local representative shall be available at all times. Current informatio, regarding 6 7 8 9 10 11 12 how to contact the local representative in an emergency shall be provided at the ume of (3) A certificate of insurance or self-insurance: a. Verifying that an insurance policy has been issued to the registrant by an to do business in the State of Minnesota, or a form of self insurance accent; 13 b. Verifying that the registrant is insured against claims for personal injury, 14 claims for property damage arising out of the (i) use and occupancy of the 15 registrant, its officers, agents, employees and pernuttees; and (ii) placem 1 16 equipment in the right-of-way by the registrant, its officers, agents, e oy� 17 but not limited to, protection against liability arising from complet opera� 18 equipment and collapse of property; 19 company licensed death, as well as ght-of-way by the and use of facilities and es and pernuttees, including, ons, damage of underground 20 c. Naming the city as an additional insured as to whom the cc�erages required herein are in force and 21 applicable and for whom defense will be provided as to all uch coverages; 22 23 d. Requiring that the director be notified thirty (30) d s in advance of cancellation of the policy;� or 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 material modification of a coverage term; e. Indicating comprehensive liability and umbrella coverage in amounts es management in amounts sufficient to Chapters 116 and 135. e, utomobile liability coverage, workers compensation, by the director of the office of risk and employee benefit the city and carry out the purposes and policies of (4) Tf the person is a corporation, a c y of the certificate required to be filed under Minn. Stat. § 300.06 as recorded and certified to y the secretary of state. (5) A copy of the person's orde antin a certificate of authority from the Minnesota Public UUlities Commission, where the pers is lawfully required to have such certificate from said commission or The regisuant �lfall keep all of the information listed above current at all times by providing to the 10 oo-a�r department information of changes within fifteen (15) days following the date on which the registrant knowledge of any change. � Sec. 116.08. Reporting obligations. (a) 6perati�nr Each registrant shall, at the time of registration and by December 1 of construction and major maintenance plan with the department. Such plan shall be sub format designated by the director and shall contain the information deternuned by the necessary to facilitate the coordination and reduction in the frequency of excavations; of rights-of-way. � The plan shall include, but not be limited to, the following information: � eaz, file a d using a xtor to be obstructions (1) The speeifi�locations and the estimated beginning and ending dates of projects to be commenced during the next calendar yeaz (in tlus section, a"next-yeaz pro� t"); and (2) To the extent known, the tentative locations and estimated projects contemplated for the froe-(Sj four yeazs following the "five-year project"). The term "project" in this section shall include both and ending dates for all dar yeaz (in this section, a pro}ects and five-year projects. By 3anuary 1 of each year, the department will have av lable for inspection in its offices a composite list of all projects of which it has been informed in t annual plans. All registrants are responsible for keeping themselves apprised of the current status this list. Thereafter, by February 1, each registrant ma change any project in its list of next-year projects, and must notify the director and all other regis ts of all such changes in said list. Notwithstanding the foregoing, a registrant may at any time j'n in a next-year project of another registrant that was listed by the other registrant. Notwithstanding the foregoing, the director may, for good cause 11 oo-a�� shown, allow a registrant to submit additional next-yeaz projects. Good cause includes, but is not limited to, the criteria set forth in section 135.1�2(c) concerning the discretionary issuance of pe � ts. Sec. 116.09. Mapping data. :� . . . • : : � : ..� . : � . . :� :�.. :. �2.i• � nu ��a.ir.n �a.i au�n i:f �iu� u n r.ui.»iv� �n.�� ivuauo•: r.riab r" n ��. u�w ui:i n�•: m��u�au•. �� n1b �i�i.i�s iuiw�� �. :w -� �� :� i �- i' - i :� - i :�• - :�• - - r:i :� •' • �• i V Al�.i���•���l�l�ln�i��ll�tlnll Within six (6) months after the acquisition, installation, or construction of or any relocation, abandonment, or disuse of existing ecgripmenf facilities, supplement the mapping $ata information required herein. � permit application which contains the followina informafion: The twe and size of the utilitv facilities. man• subdivision 3. ional ecluipmer� facilities registrant shall 12 .. permits to this registrant until such fee is paid. available. At the reguest of any registrant, any information requested by the depa� "trade-secret" under Chapter 94 of the St. Paul Administrative Code or treated as trade secret information as detailed therein. i ��.�:,:...�.�..���:s��,.«:�.��.� �. Sea 116.10. Location of (a) Undergrounding. �3rc�es construction and the instal] contained within buildings of-wa . which qualifies as a Stat. § 1337@) shall be - ,New of new eqcri�nnent facilities shall be daae located underground or aer structures in confomuty with � applicable codes except that the 13 2 CI 0 8 9 10 11 12 13 14 junction boxes, spiice boxes. and anv other necessary approvals. cannot reasonably be placed under2round. 15 (b) Earridars L.ocations. The director shall assign specific 16 or any particular segment thereof as may be necessary, for 17 pursuant to cunent technology, the director expects will sc 18 All excavation, obstruction, or other pernuts issued by th 19 zeplacement of eqnipmen4 facilities shall designate the c 20 faciiitv. 21 22 Any registrant whose equipme�is facilit 23 the eoxriders locations established by the 24 reconstruction or excavation of the area � 25 ec�igment facilitv to its assigned positio� 26 the director for good cause shown, upo� 27 the facilities, public safety, customer �n 28 � �locations witlun the right-of-way, h/type of ec�ripment facilit that is or, day be located within the right-of-way. �artment involving the installation or eerricler location for the �meirt e� cated in the right-of-way in a position at variance with �or shall, no later than at the time of the next its aqnipmentis facilities are located, move that in the right-of-way, unless this requirement is waived by of such factors as the remaining economic life of needs and hardship to the registrant. 29 (c) Nuisance. One (1) yeaz after D cember 11, 1996, any equipment or facilities found in a 30 right-of-way that has not been r istered shall be deemed to be a nuisance. The city may exercise any 31 remedies or rights it has at la or in equity, including, but not limited to, abating the nuisance pursuant to 32 section 45.11 of the Legisla ve Code or taking possession of the equipment or facilities and restoring 33 the right-of-way to a use e condition. 34 35 36 37 38 39 40 41 (d) Limitation of spa . The director shall have the power to prohibit or limit the placement of new or additional facilities within the right-of-way if there is insufficient space to accommodate all of the requests of r istrants or persons to occupy and use the right-of-way. In making such decisions, the director shall 've to the extent possible to accommodate all existing and potential users of the right-of-wa , but shall be guided primarily by considerations of the public interest, the public's needs for the parti az utility service, Che condition of the right-of-way, the time of yeaz with respect to essenfial utiliti , the protection of existing e�rer� facilities in the right-of-way, and futwe city plans for public 14 �o -a improvements and development projects wtuch have been determined to be in the public Sec. ll611. Relocation of e�i�nent existin�facilities. When working in the rights-of-way, permittees shall not interfere with the safety and ordinary travel along and over the rights-of-way nor interfere with other uses to whic may be put by the City of St. Paul. � �e�persasmt�sf. A right-of-wa�user shall prompfly and at its own expense, seasonal working conditions, permanently remove and relocate its equipmen right-of-way ' , when it is necessarv to prevent interference enience of rights-of-way regard for lities in the and not safety and convenience of ard'nrxry travel over the right-of-way. Notwithstanding the foregoing, a person shall not from any right-of-way which has been vacated in reasonable costs thereof aze first paid to the perso Sea ll6.12. Preexcavation eqnigmerrt Po remove or relocate its eq�ipment facilities of a nongovernmental entity unless and untii the In addition to compiying with the require�tfents of Minn. Stat. §§ 216D.01-.09 ('bne call excavation notice system") before the start date of y right-of-way excavation, each registrant who has equipmerce facilities located in the area to be exca ated shall mark the horizontal and approximate vertical placement of a11 said ecrnipmea�faci Ues . Any registr�nf �ht-of-wa} concrete or asphalt surface establish the exact location �hose ec�nipnrent facili is less than twenty (20) inches below a notify and work closely with the excavation contractor in an effort to , equipmerrt facili and the best procedure for excavation. Sec. 116.13. Damage to er r.e�i�nnent facilities. When the departmen performs wark in the right-of-way an-xp�pr�eeE and finds it necessary to maintain, support, r move a �erson's facilitv in order to protect it, the costs associated there rth will be billed to that registrxr� ep rson and must be paid within thirty (30) days from the date of bil ' e. 15 Oo—ac.d' 1 Each registram ep rson shall be responsible for the cost of repairing any equipment or facilities in 2 right-of-way which it or its equipment damages. Each registr�rit erson shall be responsible for t} 3 of repauing any damage to the equipment or facilities of another registsant ep rson caused dunn 4 city's response to an emergency cecasioned by that ' erson's equipment or facilitie� C'7 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Sec. 116.14. Right-of-way vacation. If the city vacates a right-of-way which contains the ee�vipatent facilities of a� and if the ri�ht-of-way vacation does not require the reiocation of � way user's et�nipme� facilities, the ciry shall, exce�t when it would not be in ., to and for itself and all registrants ri�ht-of-way us facilities in ihe vacated right-of-way, the right to install, maintain and operate the vacated right-of-way and to enter upon stzeh the right-of-way at any time � reconstructing, inspectirig, maintaini� or repairnrg the facilities same. � � the ri hg t-of- interest reserve �� aent in rese-ef to the vacation requires the relocation of the ri ht- -wa user's facilities a ment o the relocation costs must be determined as follows:; �nd (a) if the v cation proceedings are initiated by the right of wav user the ' ee right of way user must pay the relocation costs; or (b) if the vacation proceedings are initiated y the city for a public proiect, the ri�ht of way user must pay the reloca �on costs unless otherwise agreed to by the city and the right of way user; or (c if the vacation proceedings aze initiated bp for the �nr�ose of benefitine a person arpersons other an the right of way user, °-- - sac�r oincr the benefited person er perseirs mus ay the relocation costs. Sec. 116.15. Indemnification and laability. 28 By reason of the acceptance of a registratio or the grant of a right-of-way pernut, khe ciry dces not 29 assume any liability (a) for injuries to per ns, damage to property, or loss of service claims by parties 30 other than the registrant or the ciry, or for claims or penalties of any sort resulting from the 31 installation, presence, maintenance, o operation of equipment or facilities by registrants or activides of 32 registrants. 33 34 , By accepting a permit under Chapters 116 35 and 135 a r�istrant is required, to defend, indemnify, and hold the city whole and harcnless 36 from all 37 which tt 38 emolove 39 facilirie! 40 wronefu �� oa-� `8' 1 2 3 4 5 C� 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 compliance with a term, condition, or purpose of the pernut eranted to the re �s� trant• IfThe re �sgi trant further agrees that it wiil not bring, nor cause to be brought, any ac�%�on, suit or other proceeding claiming damages, or seeking any other relief against the ciry for any aim nor for any award arising out of the presence, installation, maintenance or operation of its e ipment or facilities, or any activity undertaken in or neaz a right-of-way, whether or not the act or o' sion complained of is authorized, allowed or protribited by a right-of-way permit. The foregoing does not indemnify the city for its own negligence excep for losses or claims occasioned 21 This seclion is not, as to third parties, a waiver of 22 registrant, or to the city; and the registrant, in def 23 to assert in any action every defense or immun' 24 25 Sec. 116.16. Future uses. 26 27 In placing any equipment or f� 28 liable for any damages caused 29 place. No registra�t eq rson is i 30 duty is created as to any 31 health, welfare and safety tt 32 33 Sec. 116.17. 34 35 A registrant 3b Discontinued operations. determined to discontinue all or a�ortion of its operations in the city must eitiierr defense or immunity otherwise available to the ding any action on behalf of the city, shall be entitled that the city could assert in its own behalf. lih s, or ailowing it to be placed, in the right-of-way, the city is not eby to any registrant's � facilities which is are already in itled to rely on the provisions of Chapter ll6 or 135, and no special �t e�rson. Chapters ll 6 and 135 aze enacted to protect the general public at lazge. 17 oo- a 6�' f}�Pprovide information satisfactory to the director that the registranYs obligations for its eq facilities in the right-of-way under this chapter and Chapter 135 have been lawfuily assumed regisuant; or the ci . Sec. 116.18 . Abandoned faciliries. required by law, unless this requirement is waived by the director. . . . : � .. . ��ini.nr.rii.i�ua.iGU�wnniuRab Sec. 116.1$9. ReserJSation of regulatory and police powers. The city by th granting of a right-of-way pernut, or by registering a person under sections 116.05 through ll 7, does not surrender or to any extent lose, waive, impair, or lessen the lawfui powers m 00 -a�P' 0 and rights, which it has now or may be hereafter vested in the city under the Consutution and statutes f the State of Minnesota and under the Charter of the City of Saint Paul to regulate the use of the right-of-way by the permittee; and the pemuttee by its acceptance of a right-of-way permit or o registration under sections ll6.05 through 116.07 must agree that all lawful powers and righ , regulatory power, or golice power, or otherwise as are or the same may be from time to ti vested in or reserved to the city, shall be in full force and effect and subject to the exercise thereo y the city at 7 any time. A permittee or registrant is deemed to acknowledge that its rights are subject to the regulatory 8 and police powers of the city to adopt and enforce general ordinances necessary to tt�e� safety and 9 welfare of the public and is deemed to agree to comply with atl applicable general aws and ordinances 10 enacted by the ciry pursuant to such powers. 11 12 13 14 15 16 17 Any conflact between the provisions of a registration or of a right-of-way or future lawful exercise of the city's regulatory or police powers shall b�e and any other present d in favor of the latter. 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Sec. ll6.�920. Severability. If any secUon, subsection, sentence, clause, phrase, or rtion of this chapter or Chapter 135 is for any reason held invalid or unconstitutional by any court administrative agency of competent jurisdiction, such portion shall be deemed a separate, distinct, d independent provision and such holding shall not affect the validity of the remaining portions th eof. If a regulatory body or a court of competent jurisdiction should deternune by a final, non pealabie order that any permit, right or registration issued under Chapters 116 and 135 or any portio of these chapters is illegal or unenforceable, then any such pezmit, right or registration granted or emed to exist hereunder shall be considered as a revocable permit with a mutual right in either p y to ternunate without cause upon giving sixty (60) days written notice to the other. The requiremen and conditions of such a revocable pernut shall be the same requirements and conditions as s forth in the permit, right or registration, respectively, except for conditions relating to the term f the pernut and the right of termination. If a pertnit, right or registration shall be considered a revocable permit as provided herein, the pernvttee must acknowledge the authority of the city counciXto issue such revocable permit and the power to revoke it. Sec. 116.281. Boazd f water comirxissioners; city. Notwithstan�g anything to the contrary in this Chapter 116 or in Chapter 135 of the I,egisiative Code, the boazd of ater commissioners established pursuant to 1885 Minn. Laws, Ch. 110, may, at its discretio satisfy requirements for the posting of a bond by written undertaking which obiigates said boazd a surery with respect to such requirements. The said board may also, at its discretion, satisfy 19 oo-aca' i requirements for obtaining and maintaining insurance by written undertaking obligating said boar to the 2 city as required in said chapters, provided, however, that such undertaking need not waive liab� ty limits 3 or defenses available to it as a body corporate and politic organized and e�sting under the 1 s of 4 Minnesota. The city is excepted from the insurance and bonding requirements of these ch ters. 5 6 7 8 9 10 11 12 section 2. Legislative Code Chapter 135, is hereby amended to read: Chapter 135. Right-of-Way Pemrits Sec. 135.01. Purpose. 13 In order to provide for the health, safety and well-being of its p 14 rights-of-way, as well as to ensure the siructural integrity of its 15 minimize the number of obstructions and excavations taking pi 16 k�ace as it uses the u� blic �ts-of-way, the ciry desires to thereon. 17 The purpose of this chapter is to regulate obstructions and excavations in the rights-of-way by 18 providing, among other things, for the issuance of p �ts granting authority to obstruct or excavate 19 therein and by providing for the subsequent restor tion of the rights-of-way. 20 21 The findings and purpose statement in Cha er 116 is hereby incorporated in and adopted as part of 22 this chapter. 23 24 Sec. 135.02. Definitions. 25 26 The definitions found in secti 116.02 of the St. Paul I.egislative Code (hereinafter, "Legislative 27 Code") apply to ttiis chapter 28 29 30 31 32 33 34 Sec. 135.03. Permit Except as othe ise provided in the L.egislative Code, no person may obstruct or excavate any right-of-way ithout first having obtained � the appropriate right-of-way permit fro the department to do so. 20 6o-?�a' i (1) Excavation permit. An excavation permit is re uired to excavate 2 that part of the right-of-way described in such permit and to hinder free and open passage over the 3 specified portion of the right-of-way by placing equipment described therein, to the extent and i the 4 duration specified therein. 5 6 (2) Obstruction pemut. An obstruction permit is � ' r uifed to hinder 7 free and open passage over the specified portion of right-of-way by placing equipme described 8 therein on the right-of-way for the duration specified therein. 0 10 No person may excavate or obstruct the right-of-way beyond the date or dates 11 unless � such person {ij makes a supplementary application for another rig� 12 expiration of the initial pemut, and (ii) a new pernut or pernut extension is 13 14 15 16 17 18 19 20 21 22 d in the permit pemut before the Pemuts issued under this chapter shali be conspicuously displayed at 1 times at the indicated work site and shall be available for inspection by department inspectors and thorized city personnel. Sec. 135.04. Pernut applications. Application for a permit is made to the director. 23 Right-of-way permit applications shall con �n, and will be considered complete only upon compliance 24 with, the requirements of the following p ovisions: 25 26 (1) Registration with the departrne pursuant to Chapter 116. 27 28 (2) Submission of a complete pernvt application form, including all required attachments, and scaled 29 drawings showing the locati n and azea of the proposed project and the location of all existing and 30 proposed ec�i�mtenf facil' es. 31 32 33 34 (3) Payment of all a. Prior due to the ciry for: or excavations; 21 00 .acr 2 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 � �'.' � b. Any loss, damage, or expense suffered by the city as a result of applicant's prior excavations or obstructions of the rights-of-way or any emergency actions taken by the city; c. �3ser�ees; ar� Perinit fees and costs: d. Any franchise fees in atrears, due, owing and unpaid. � ,.�....��.� . .. . .:. : . .. .. . .. .. .� � . •:. � . � . • .. � . ::: :. . . Sec. 135.05. Issuance of permit; conditions. ff the director determines that the applicant has satisfied the requirements the posting Chapters 116 and 135, the director may issue a pemut. Such pernuts may, in the discretion of the ector, be issued as "various location" permits, with or without conditions as provided in this secti . The director may impose reasonable condilions upon the issu Ee of the permit and the performance of the applicant thereunder in order to protect the public healt safety and welfare, to insure the structural integrity of the right-of-way, to protect the property and s�fety of other users of the right-of-way, and to minimize the disruption and inconvenience to the tra�eling publia Without limiting the foregoing, the i{e, to insure the structural integriry of the director,to protectthe public health, safety and w right-of-way, to protect the property and safety of dismption and inconvenience to the traveling pu� . reasonable assurance that utilities and/ar their �Lon and qualified. These pernut conditions laws, including one-call, construction ; er usezs of the right-of-way, and to minimize the shall develop pernut conditions that provide :tors working in the right-of-way az'e competent but not be limited to, instruction in state and local safety, and construction standards, including restoration standards. Sea 135.06. Permit fees. 31 (a) Excavation permit fee. e excavation permit fee shall be in 32 an amount sufficient to r over the following costs if applicable: 33 34 (1) The city mana ment cost� � 35 22 �0-�8' 1 � The dismptive cost; 2 /" . � � 1 • �. . • i - - :� • ��:� r:� � - i° : � � -:� � � � � : � / � : _ _ , � , 6 (3� The degradauon cost_ 7 �l�J 11 12 13 14 15 16 17 : : air.uun���r.u�riunosuca�.i: . . � i - � . : : : � - - . (b) Obstruction permit fee. The obstruction pernvt fee shall be estal in an amount sufficient to recover the following costs if appllcable: (1) The city mana ement cost, � � The disruptive cost; and 18 (�3) The 19 20 (c) Payment of pertnit fees. No excavation permit 21 of snek excavation or obshuction pernut fees. bef 22 director may a11ow applicant skai}agree to pay � 23 � sqstexn• permit shall be issued without payment The fees within thirty (30) days of billing Hrerefer. 24 (d) Computation of disruptive cost. 'I'he d� ector shall determine the disruptive cost component of the 25 fees for excavation and obstruction, and n doing so shall have the purpose of providing a financial 26 incentive to permittees to minimize t ir obstruction and use of the right-of-way and to get in and get 27 out of the right-of-way as quickly a ossibie. In aid of that purpose, the director shall use in the 28 computation of the disruptive cos to the extent practicable, economic and accounting principles 29 relating to the quantification of e social costs resulting from street obstructions, including (1) losses to 30 31 32 33 34 35 36 businesses and merchants wh� would not have occurred but for the obstructions, and (2) social costs to the users of the right-of- y resulting from traffic delays, diversions, disrupUon in services, missed or delayed appointments, an decline in quality of life. Fees may vary from one (1) location to another based on the size of the ea to be obstructed; the duration that the right-of-way or parts of it wili be unavailable for publi use and travel; the proximity of businesses and enterprises which rely in whole or in part on access b members of the public or the delivery of supplies or raw materials; the importance of the particular ght-of-way as to the traveling public; the use of the particular right-of-way for 23 Do-ic� 1 emergency vehicles and the availabiliry of alternate routes; the traffic volumes carried by the particular 2 right-of-way; and the amount of vehiculaz, bicycle, and pedestrian tr�c that is reasonably likely to be 3 disrupted thereby. 4 5 (e) Use of pemut fees. All obstruction and excavation pemut fees shall be used solely for city 6 management, construction, maintenance and repair costs of the right-of-way. � 7 8 ( fl�nsitiea permit fees. permit fees for street usage, excavation and 9 obstruction � , pursuant to chapters 116 and 135, shall be proposed 10 b the director and estabiished from time to ume b '�_„ �___ ___ �_rr_ _. ___.., -v _ ci council; �' X "_-.'— - -- ty 11 bp resolurion, . 12 13 (g) All permit fees shall be doubled during a probationary period. 14 15 Sea 135.07. Dela P� enalty. ' 16 17 In accordance with Minnesota Rule 7819.1000 subp. 3, the Director shail impose a delav penaltv for l8 unreasonable dela sy in rieht-of-wav excavation. obstruction,�atchine, or restoration by pertnitee. The 19 delay�enaltv shall be pronosed b�the Director and established from time to time b,�l city council 20 resolution. 21 22 Sec. 135.0�8. Right-of-way patching and restoration. 23 24 The work to be done under the pernut, and the �atchin�and restoration of the right-of-way as required 25 herein, must be completed within the dates specified in the pemut, increased by as many days as work 26 could not be done because of circumsYances constituting force majeure or when work was prohibited 27 as unseasonal or unreasonable under this chapter. seetieir�35� In addition to patching its own work, 28 the permittee must restore the general area of the work, and the surrounding areas, inciuding the paving 29 and its foundations, to the same condition that existed before the commencement of the work�nd�st 30 - 31 nn��1 hs-ttterea€ter. 32 � 33 In its application for an excavation permit, the pernuttee may choose either to have the ciry restore the 34 right-of-way or to restore the right-of-way itself. f 35 j 24 ao -ac� 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 (1) City restoration. If the city restores the right-of-way, i� permittee shall pay the costs thereof within thirry (30) days of billing. If, - fo7 such restoration, the patek �avement settles due to permittee's improper backfilling, the pemuttee s pay to the city, within thirty (30) days of billing, . all costs assoc' e� with correcting the defective work. (2) Pernuttee restoration. If the pernuttee �n restores the right-of-way itself, of application of an excavation permit- � Post a performance bond_ 1�4�1�U1/��!'J�R�1lERU�P]���PI�IU�� I�I��UI� ��1�]�1�1�1U�I1�1��YGJ�\ . : . . . . . The pernuttee shall perform the-�erk excavation standards and with the materials specified by the prescribe the manner and extent of the restoratio� application or on a case-by-case basis. The dir Minnesota Rules 7819.1100. SaUOliaut�u.f V.�ri1�lr�a�lurlA�l1 33 Methods of restoration 34 base, and milling and p� 35 36 37 at the time ac fillin atchin and restoration according to the ctor. The director shali have the authority to md may do so in written procedures of general in exercising this authority sha11 be guided by include, but aze not limited to, patching, replacement of the right-of-way � of the entire area of the right-of-way affected by the work. The pertnittee 25 oo-a�� 1 shall conect defects in patchin�, or restoration performed by pemuttee or its a¢ents. Permittee, upon 2 notification from the department, shall conect all restoration work to the extent necessary, using the 3 method requued by the department. Said work shall be completed within five (5) working days of th 4 receipt of the nouce from the department, not includang days during which work cannot be done 5 because of circumstances consututing force majeure or days when work is prohibited as unse nal or 6 unreasonable under seetian-�3�1$ Chapters 116 and 135. 8 If the pernuttee fails to restore the right-of-way in the manner and to the condition req red by the 9 department, or fails to satisfactorily and timely compiete all repairs restorations requ ed by the 10 department, the department at its opUon may do such work. In that event the permi ee shall pay to the 11 city, within thirty (30) days of billing, the cost of restoring the right-of-way. 12 13 14 15 16 17 18 19 20 21 include the cost to accom�lish these xesponsibilities. Sec. 135.0$4. Joint applications. Registrants may joinfly make application for pernuts to el[cavate or obstruct the right-of-way at the same place and time. � 22 Registrants who join in and during a scheduled o struction or excavation performed by the department, 23 whether or not it is a joint application by two ( or more registrants or a single application, aze not 24 required to pay the obstruction and degradat n portions of the pernut fee. 25 26 Registrants who apply for pernuts for t e same obstruction or excavation, which is not performed by 27 the department, may share in the pa ent of the obstruction or excavation pernut fee. Registrants must 28 agtee among themselves as to the rtion each will pay and indicate the same on their applications. 29 30 Sec. 135.9910. Supplement applications. 31 32 A right-of-way pemut ' valid only for the area of the right-of-way specified in the permit. No permittee 33 may perform any w outside the area specified in the pernut, except as provided herein. Any 34 pemuttee which temunes that an area greater than that specified in the pemut must be obstructed or 35 excavated mus , before working in that gteater azea: (i) make application for a pemut extension and pay 36 any additio fees necessitated thereby, and (ii) be granted a new pernut or pertnit extension. 26 DO-}GP' 1 A right-of-way permit is valid only for the dates specified in the permit. No permittee may begin its 2 work before the pernrit start date or, except as provided herein, conunue working after the end date. ff 3 a permittee dces not finish the work by the pemut end date, it must make application for a new permit 4 for the additional time it needs, and receive the new permit or an extension of the old permit 5 working after the end date of the previous pemut. This supplementary application must be d 6 a�proved before the pemut end date. / 9 Sec. 135.181. Other obligations. 10 11 Obtaining a right-of-way pernrit dces not relieve permittee of its duty to 12 pemuts, licenses, and authority and to pay all fees required by any other 13 , , rules, laws or regulations. / 14 J �fi all other necessary or other applicable ; 15 A pernuttee shall compiy with all requirements of local, state an�federal laws, includang Minn. Stat. §§ 16 216D.01-.09 ("one call excavatian notice system"). 17 18 A permittee shall perform all work in conformance with 1 applicable codes and established rules and 19 regulations, and is responsible for all work done in th �ght-of-way pursuant to its pernut, regardiess of 20 who performs the work. 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Except in the case of an emergency, and with or excavation may be performed when seasoy such work. � A pernuttee shall not so obstruct a approval of the director, no right-of-way obstruction prohibited or when conditions are unreasonable for that the natural free and cleaz passage of water through the gutters or other waterways shall e interfered with. Private vehicles may not be p ed within or adjacent to a pernut azea. The loading or unloading of trucks adjacent to a pemut ea is prohibited unless specificaily authorized by the permit. Sec. 135.142. Denial (a) Mandatory permit. Except in the case of an emergency, no right-of-way permit will be granted: 27 oo-a�� (1) To any person required by-seetiarri�fr.95 to be registered who has not done so; (2) To any person required b}�seetsoa-�fr.8$ to file an annual report but has failed to do so; 5 (3) For any next-year project not listed in the construction and major maintenance plan r uired under 6 seefio� cha�ter 116:9g ("reportine obligations"l; 7 8 (4) For any project which requires the excavation of any portion of a right-of-w which was 9 constructed or reconstructed within the preceding five (5) years; 10 11 (5) To any person who has failed within the past three (3) yeazs to comg , or is presently not in full 12 compliance, with the requirements of Chapters ll6 and 135; 13 14 (6) To any person as to whom there exists grounds for the 15 135.� 16 17 18 19 20 21 22 (b) Pernussive denial. The director may 23 welfare, to prevent interference with the 24 right-of-way, would cause a conflict or � 25 event.or when necessaryto protectth x of a pernut under seefien chanter a pernut in order to protect the public health, safety and y and convenience of ordinary travel over the and its users. The director, in her or his discretion, 26 may consider one (1) of more of the ollowing factors: the extent to which right-of-way space where the 27 permit is sought is available; the c peting demands for the particular space in the right-of-way; the 28 availability of other locations in e right-of-way or in other rights-of-way for the e�ni�rnent facilities of 29 the permit applicant; the appli ility of ordinance or other regulations of the right-of-way that affect 30 location of ecnripment facilit s in the right-of-way; the degree of compliance of the applicant with the 31 terms and conditions of its anchise, Chapters 116 and 135, and other applicable ordinances and 32 regulations; the degree o isruption to surrounding communities and businesses that will result from the 33 use of that part of the ' ht-of-way; the condition and age of the right-of-way, and whether and when it 34 is scheduled for total r partial reconstruction; and the balancing of the costs of disruption to the public 35 and damage to the �ght-of-way, against the benefits to that part of the public served by the expansion 36 into additional p s of the right-of-way. � Do -��P' 1 2 3 4 5 6 � (c) Discretionary issuance. Notwithstanding the provisions of sections 135.1�2(a)(3) and 135.1�2(a)(4), the director may issue a permit in any case where the permit is necessary (a) to prevent substantial economic hazdship to a customer of the pennit applicant; or (b) to allow such customer to materially improve its utility service; or (c) to allow a new economic development project; and where the permit applicant did not have knowledge of the hardship, the plans for improvement of se ice, or the development project when said applicant was required to subznit its list of next-year pr ects. 8 (d) Pernuts for additional next-year projects. Notwithstanding the provisions of this a ter seetian 9 �35�, the director may issue a perznit to a registrant who was allowe under seetierr 10 cha�er ll6�${ej to submit an additional Next-yeaz project, such permit to be su ect to all other 11 conditions and requirements of law, including such conditions as may be impos d under seeYian ch� 12 135$5. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Sea (13) A�peal establishing the reasonableness of the decision. Sec. 135.1�4. Installation requirements. The excavation, backfilling, patching, be done in conformance with "The St� code. Sec. 135.135. Inspection. When the work under any Part 7819.1300 shall rcati director , and all other work performed in the right-of-way shall ifications for Street Openings" as promulgated by the and at a location as required by seetian this heteunder is completed, the permittee,as authorized bv Minn. Rules ut a completion certificate to the director at the time the �roject is 29 oo-�cr 2 Permittee shall make the work-site available to the department inspector and to all others as authorized by law for inspection at all reasonable times during the execution and upon compleuon of the work� 4 At the time of inspection the department inspector may order the immediate cessation of an work 5 which poses a serious threat to the life, health, safety or well-being of the public. 6 7 The department inspector may issue an order to the regish��nt pennittee for any wor hich does not 8 conform to the applicable standards, conditions or codes. The order shall state that ailure to correct 9 the violation will be cause for revocation of the pernrit. Within ten (10) days afte issuance of the order, 1Q the regisirnnt pernuttee shall present proof to the director that the violation has een conected. If such 11 proof has not been presented within the required time, the director may revok the pemut�rs�antfie 12 13 14 15 16 17 18 19 20 21 22 : . Sec. 135.1�6. Work done without a permit. (a) Emergency situations. Each registrant shall immediately of any event regarding its ee�ipment facilities which it proceed to take whatever actions are necessary in order business days after the occurrence of the emergency, th permits, pay the fees associated therewith and fulfill t a into compliance with Chapters ll6 and 135 for the cti ythe director orthe director's designee to be an emergency. The registrant may o/respond to the emergency. Within two (2) �registrant shall apply for the necessary rest of the requirements necessary to bring itself it took in response to the emergency. 23 In the event that it becomes aware of an emerg ncy regarding a registrant's equipment or facilities, the 24 department may attempt to contact the local presentative of each registrant affected, or potentially 25 affected, by the emergency. In any event, t department may take whatever action it deems necessary 26 in order to respond to the emergency, the ost of which shall be bome by the registrant whose 27 equipment or facilities occasioned the e ergency. 28 29 (b) Nonemergency situations. Exc t in the case of an emergency, any person who, without first having 30 obtained the necessary pernut, o tructs or excavates a right-of-way must subsequently obtain a 31 pertnit, pay double the normal ee for said percnit, pay double all the other fees required by the 32 I.egislative Code, deposit wi the department the fees necessary to correct any damage to the 33 right-of-way and comply th all of the requirements of Chapters 116 and 135. 34 35 Sec.135.157. 36 notification. 30 00 -a`r 1 2 3 � If the obstruction or excavation of the right-of-way begins later or ends sooner than the date given on the permit, permittee shall notify the department of the accurate information as soon as tivs�rmati is known. 5 If the obstruction of a right-of-way is of a shorter duration than that estimated on the 6 the department wili, upon request, refund or credit to the permittee a proportionate a 7 pemut fee. 8 9 Sec. 135.1fr8. Revocation of pernuts. 10 application, of the 11 Registrants hold pemuts issued pursuant to the I,egislative Code as a priyilege and not as a right. The 12 ciry reserves its right, as provided herein, to revoke any right-of-way imit, without fee refund, in the 13 event of a substantial breach of the terms and conditions of any stat e, ordinance, rule or zegulation, or 14 any condition of the pernut. A substantial breach by pernuttee sh i include, but shail not be limited to, 15 the following: 16 17 18 19 20 21 (1) The violation of any material provision of the (2) An evasion or attempt to evade any material F perpetration or attempt to perpetrate any fraud or pernut; >n of the right-of-way pernut, or the upon the city or its citizens; 22 (3) Any material misrepresentation of fact in�he application for a right-of-way permit; 23 24 25 26 27 (4) The failure to maintain the required (5) The failure to complete the and/or insurance; a timely manner; or 28 (6) The failure to conect a con "tion indicated on an order issued pursuant to this chagter seetien 29 -�35�3; 30 31 (7) Hiring illegal aliens; 32 33 (8) Failing to rep damage to other utilities; 31 oo-�cr 2 3 (9) Failing to report injuries. If the director detemunes that the permittee has committed a substantial breach of a term 4 of any statute, ordinance, rule, regulation or any condition of the permit, the director sh�ake a 5 written demand upon the permittee to remedy such violation. The demand shall state th3 continued 6 violations may be cause for revocation of the permit. Further. a substantial breach_ as srated above_ � 7 aliow the director to �lace additional or revised conditions on the permit. 9 Within twenry-four (24) hours of receiving notification of the breach, pernuttee 10 with a plan, acceptable to the director, for its conection. Pemuttee's failure to / s� 11 or the permittee's failure to submit an acceptable plan, or pernuttee's failure Sb' Jtall contact the director contactthe director, 12 the ap�roved �lan, shall be cause for immediate revocation of the pemut. Further, permittee's failure to 13 so contact the director, or permittee's failure to submit an acceptable pl,an, or permittee's failure to 14 implement the approved plan, shall automatically place the permitte , on probation for one (1) full yeaz. 15 16 From Ume to time, the director may establish a list of conditi s of the pernut which, if breached, will 17 automatically place the permittee on probation for one (1) 1 yeu, such as, but not limited to, working 18 out of the allotted time period, working on right-of-way ossly outside of the pernut, failing to report 19 utility hits, failing to report injuries or hiring illegal ali s. 20 21 If a pernuttee, while on probation, commits a 22 automatically be revoked and permittee will r 23 for emergency repairs. , 24 h as outlined above, permittee's permit will allowed further pernuts for one (1) full yeaz, except 25 If a pernut is revoked, the pernuttee sh also reimburse the city for the city's reasonable costs, 26 including restoration costs and the co s of collection and reasonable attorneys' fees incurred in 27 connection with such revocation. 28 29 30 31 32 33 34 35 7�i Sec. 135.1�9. Nonexclusive The remedies provided i his chapter and in Chapter 116 and other chapters in the Legislative Code aze not exclusive or in u of other rights and remedies that the city may have at law or in equity. The city is hereby ; rights-of-way, the provisions . d to seek legal and equitable relief for actual ar threatened injury to the public ng damages to the rights-of-way, whether or not caused by a violation of any of chapter or other provisions of the L,egislative Code. 32 AvrHORIZEn - ro FNncncE Iaw Pi Mu�svrn, Wscotvsnv, Iow.n, Sovn[ Daao W.�.scmvGiox D.C., C.OLORADO� IU.LWU, CN.tFORIVIA nivn Moi.*cnve W&LCER'S D]FECI DL4I. NUhIHER 672-3662 April 12, 2000 Messerli & Kramer pLOf¢sional assotlation Arro�YS nr Iaw 1800 F� Sr�r Towrns SSO SoL F�ni S'i'xEer Mnsuf'nrovs, Mu�soTA $$402-4218 "I�,artio�e (672) 672-3600 Fncsum,E (612) 672-3777 Db ��° Sr. Patn. OfPice I.E4GUE OF MINN'F_SO'I:A QIgS $Up,pING Sc'ii't:450, 145 Un'IVmsin AvIIVUe WFSr ST- PaUL, MuvxFSOra 55103-2Q94 "I�cEeaorm (651) 225-9757 FncsA�.s (651) 228-9787 Mr. Dan Bostrom, President BY HAND St. Paul City Councii St. Paul City Hall St. Paul, MN 55102 Re: Commenu on Pro�osed Amendments to St. Paul Legislative Code. Chapters 116 & 135, Right of Wav Administration and Rieht of Wav Permits Dear Mr. Bostrom: US West Communications has asked me to make some initial comments on the proposed ordinance aznending Chapters 116 and 135 of the St. Paul Legislative Code. Before I begin a secuon analysis o� each Chapter, I have two overall observations. First the issue of underground faciliry location is iroublesome from a legal perspective under both state and federal law. We do not think St. Paul can require underground location by right of way users because it wonld preclude certain above ground users (suclr as wireless) from the right of way, which violates the standard that rights of way should be administered in a competiuvely neutral manner. Second, these comments represent the most significant legal issues immediately identifiable. Chapter ll6, Rieht of Wav Adminisuation Section 116.02 Defuutions 4) "Citv manaeement cost". This defurition contains the ghrase "_., creating and maurtaining information on a geographical anformation system ("GIS") mapping system; ..." which is not an authorized statutory factor to be considered in assessing management costs. In addition, at the end of the defuution ffiere is a catch-all phrase that would, again, potentially broaden the statutorily allowed factors for assessing out-of-pocket costs incurred by the city in managing the public rights of way. In any event, actual costs should be published and }ustified by the City. 5) "Constructionperfornaance bond". The statute and the PUC rules provide the form of securiry should be acceptable to the local unit of government and it appeazs to me the proper reference should be to the City, rather than only the Director where there are other positions, such as the city attomey or the city council which may wish to comment on the form of security. 13)"Disruvtive costs" is rewritten to be a penalry, rather than a cost, neither of which is auffiorized by statute or PUC rule. It should be deleted. 20) °FacilitY or facilities". The PUC rule provides facility or facilities means any tangibie asset in the right of way required to �rovide utilitv services. The proposed St. Paul ordinance deletes the last phrase, which from a business perspective, may be appropriate. ao-a�� Dan Bostrom April 12, 2000 Page 2 22) "Minnesota Rules". Here the proposed ordinance attempts to isolate the Minnesota Rules as they were first published on June 1, 1999, regardless of whether they aze currenfly in effect. If the rules change the ordinance, from time to time, should be amended. Section 116.08 Reportine oblieations. This section is appropriate for plaunuig but, if used to deny a pemut (see chapter 135, section 135.12), is an illegal prohibition against use of the right of way under Minnesota law. Section 116.10 L,ocation of Facilities (a) Undererounding, (b) location, (c) Nuisance, and (d) Limitation of snace. These sections present a conflict with both Minnesota and Federal Law, if applied. Minnesota Statues § 237.162, et. se ., and § 253 of the Federal Telecommunications Act clearly provide that right of way use should be on "a competitively neutral" basis. By requiring undergrounding and ailowing the director to, make decisions for location of facilities within the right of way violate the competitive neutraliry standazd of those laws by discruninaung between above ground users, such as wireless, and below ground users, such as wireline companies. Either type of user may be disadvantaged depending upon the director's decisions. In addition, given ffie state-wide construction standazds of the PUC rules, the relocation of facilities within the right of way by the City can only be done pursuantto the high density corridor and relocation rules under Minn. Rules 7819.0200 and, 78193100. The following correcdons to ffie draft are recommended: i) On line 33, page 13, the words "... or above ground ..." should be inserted before ... or ..." ii) The last three words on line 34 and lines 35-37, all on page 13 should be deleted, with the phrase ".., and the standards of this section 116.10(a)," inserted. iii) The phrase "... which have already received zoning and other necessary approvals" on line 6 and 7, page 14 should be deleted. Sections 116.10(c) and (d) shouid be amended or deleted to conform with abandoned facilities, high density corridor and relocation of existing facilities rules. Ch�ter 135 Rieht of Wav Pernuts 135.06 Permit Fees (a) Excavation permit fee (2) The disruptive costs should be deleted as it is an unauthorized cost beyond which the city can charge (i.e. only the management cost and mapping data conversion costs may be charged an applicant), and § 135.06(b) (3) should be rewritten to include the word "conversion" between the words "data" and "costs' so the phrase should be "the mapping data conversion cost". (4) The degradation costs should be deleted, as it is an elecrive cost of the pemuttee if the pemuttee does not restore the right of way itself. (b) Obstruction pemut fee (2) The disruptive costs should be deleted as it is an unauthorized cost beyond which the ciry can charge (i.e. only the management cost and mapping data conversion costs may be chazged an applicant}, and § 135.06(b) (3) should be rewritten to include the word "conversion" between the words "data" and "costs" so the phrase should be °the manpin� data conversion cost". (4) The D c — �,(.$ Dan Bostrom Aprii 12, 2000 Page 3 degadauon costs should be deleted, as it is an elecuve cost of the permittee if ttie pemuttee dces not restore the right of way itself. (c} Computauon of disruptive costs. This section should be deleted as unnecessary because the cost cannot be charged a pemuttee. 135.12 Denial of Pemut (a) Mandatory denial. Sections 135.12(a)(2),(3) and (4) should be deleted as they exceed statutory authority. The failure to report or include a project in a plan would be an unreasonable withholding of approval or a violation of a prohibition on ffie City's authority. Minn. Stat. § 23'1.163, Subd 4 (d) and (e). (b) Permissive denial. To the extent the director has the opportunity to permissively deny a permit for only a temporary and limited time, in the interests of the public health, safery and welfare, or to prevent interference with safery and convenience of ordinary travel or to prevent interference with the e�ibiuon, celebration, festival or any other event, I believe that lunited and temporary power is reasonable and enforceable. However, there is a list of other factors which go well beyond the statutory authority under Minnesota Statute § 237.162, et se . and I believe that portion of the ordinance is not enforceable and shouid be deleted. The conflict is, again, one of providing powers to the designated authorities beyond the "mere managemenY' and "reasonable" regulation of the right of way which could result in unlawful discrimination and selection by and unong right of way users, or prevent the lawful use of the right of way without providing a grocess for obtaining a pernut otherwise authorized by this Chapter and Chapter 116. (d) Pertnits for additional next year projects. This section should be amended to conform with Minn. Stat. 237.163, Subd 4. (d), as follows: "The director may issue a permit to an applicant for a project not included in a plan if the applicant has used commercial]y reasonable efforts to anticipate and plan for the project." Secrion 135.18. Revocation o�emuts. Added language on lines 6 and 7 on page 32 should be deleted as exceeding statutory authority, and possibly exceeding ihe applicable standazds contained in Chapters 116 and 135 of the St. Paul L.egislative Code. US West believes many of its concems may be resolved in discussions among US West, the Public Works Department, and the City Attorney's office. We hope to bring agreed upon language back to the City Council at the earliest possible date. Very truly yours, S RLI 8y KRAMER P.A. `� � John R. Beattie c: Phyllis Harvin Jan Unstad Kevin Saville, Esq. oQ -a�� U S WEST Wireless, L.L.C. 426 North Fairview Avenue Room 701 St. Paul, MN 55104 April 12, 2000 St. Paul City Council City Hall and Court House 15 West Kellogg Boulevazd St. Paul, NLrI 55101 RE: Public Right-of-Way Ordinances Chapters 116 and 135 Aeaz City Councii, ,.� � .�,�, ���,,,.. ��' �. d�.. � . US West Wireless (USWW) respectively requests that the following comments be considered in the proposed amendments to the Righ,t-of-Way Ordinances to the City of St. Paul, which aze contained in Chapters 116 and 135. We are submitting these comments in an effort to improve the ongoing relationship between US West Wireless and the City of St. Paul and to help make the ordinances more workable for all. Specific comments are as follows: Sec. 116.01, p.2,1.14. Insert after "Code provisions" a new sentence: These newly enacted chapters hereby suoersede other �rovisions within zonine reeulations and the Codes. This would help eliminate any ambiguities between the author?ty of the Planning Commission and the Public Works and consolidate responsibility in the Public Works Departrnent. Sea 1i6.02 (4), p.3, 131. D elete: o...:.,,. ....a ... ...,.:,,:..,. :,.o,....,,�«:,... ,. .. � .,, ..,.:,.,.� r..F ..........:.... c..,-.e... " : This should be deleted because it is not a statutory factor to be considered in assessing management cost. Sea 116.02 (22), p.5, 1.26. Delete: �°'�°«'�°- �F ��"'�°- °�° �..�-°�''° :� F���° and add: as thev ma�be updated from time to time. As the PUC rules change from ume to time, the ordinance shonid be amended to reflect these changes. USA �.�;� Proud Sponsor 36USC380 bo -a6� USWW Comments Page 2 Sec. 116.06, p.9, 1.19. This section should be retained since it is a section that has granted a right to use the right of way, provided the user complies with all the requirements of the ordinance and law. This conforms with both Federal and State law and prevent differentiation between current and prospective public rights-of- way users. Sec. 116.07 (3)d. and (5), p.10, 1.23 and p.l l, I.1. There is an issue of congruence and possible conflict. One paragraph requires 15 days notice and the other requires 30 days notice. We suggest that both paragraphs provide for a 30 days notice period. Sec. 116.09 p.13,1.4. After the sentence ending "fee to the applicant.", insert the following new sentence: The City shall vrovide each applicant with iY s current data formatting requirements. This would allow applicant's to supply the City with data in the City's data format. Sec. 11610 (a) (2), p.14,11 After the term "transformers" insert the term transceivers. This would include ground equipment far wireless telecommunication service providers. Sec. 135.05, p. 22, 1.14. The conditional term "may" should be replaced with the mandatory term shall. If an applicant meets all terms and conditions the persnit shouid be issued without any further descriptions on the part of the director. Sec. 135.06 (3), p.28,1.22. To the extent that the city engineer has the opportunity to pernussively deny a permit for a only temporary and limited time, in the interest of the public health, safety and welfaze, or to prevent interference with safety and convenience of ordinary travel to prevent interference with the exhibition, celebration, festival or any other event, we believe that o�. ac� usww co�ents Page 3 limited and temporary power is reasonable and enforceable. However, there is a list of other factors wluch go well beyond the statutory authority under Minnesota Statute 237.162 et seq. and we believe that portion of the ordinance is not enforceable and should be deleted. The conflict is one of providing powers to the designated authorities beyond the "more managemenY' of the right-of-way which could result in unlawful discrimination and selection by and among right of way users, or the prevention of use outside a lawful zoning process. We trust that the City Council will give our comments due consideration and we look forward to continued good relations with the City of St. Paul in the future. I wiil be present at April 12`�' City Council meeting to answer any of your questions or concems regarding these comments. Submitted, Regional Real E�te Manager US West Wireless, L.L.C. 651 642-6016 aN 2 S \_ 1 Council File # �� � �� 8 v ' p S`` ���^-� e- ` Ordinance # (��.� \ \ \ �, � �c o a Green Sheet # � 0 27 � S ORDINANCE ,, , CITY OF SAINT PAUL, MINNESOTA Presented By / �� Refesed To Committee: Date An ordinance amending I.enislative Code Chapters 116 and 135 of the Saint Paul L,egislative Code to provide for reb lation of the public right-of-way. THE COUNCiL OF THE CTI'Y OF SAINT PAUL DOES ORDAIN: 0 8 9 10 11 12 13 14 section 1. Legislative Code Chapter 116, is hereby amended to read: Chapter 116. Right-of-Way Administration Sec. 116.O1. Findings and purpose. General 15 In order to provide for the health, safety and well-being of its citizens, as well as to insure the structural 16 integrity of its streets and the use of the up blic rights-of-way, the city strives to keep its rights-of-way in 17 a state of good repair and free from unnecessary encumbrances. Although the general population bears 18 the financial burden for the upkeep of the rights-of-way, a primary cause for the eazly and excessive 19 deterioration of its rights-of-way is their frequent excavation by persons whose equipment is located 20 therein. 21 22 Right-of-way obstruction is a source of loss of business to merchants and others whose places of 23 business aze located nearby and a cause of frustration for the general population which must avoid these 24 obstructions or change travel or shopping plans because of them. Persons whose equipment or facilities 25 are is located within the right-of-way aze the primary cause of these frequent obstructions. 26 27 The city recognizes that it holds the rights-of-way within its geographical boundaries as an asset in trust 28 for its citizens. The ciry and other public entities have invested millions of dollars in public funds to build 29 and maintain the right-of-way. It also recognizes that some persons, by placing their equipment or 30 facilities in the right-of-way and charging the citizens of the city for goods and services delivered 31 thereby, are using this property held for the public good. Aithough such services are often necessary or li�i':� 1,� !i 00 -a�P 2 � 6 7 9 10 11 12 13 14 15 16 17 18 19 20 convenient for the citizens, such persons receive revenue and/or profit through their use of public property. The city finds that to protect the public health, safety, and welfaze, and to protect the public right-of-way and its current use, it is necessary for the city to detertnine the competence and qualifications of the persons who perform the actual excavation of the right-of-way, installation of facilities, and restoration of the right-of-way, at the request of, and on behalf of those persons who wish to place facilitfes in the public right-of-way. The lack of competence and qualification of persons who work in the right-of-way has caused substantial public inconvenience, substantial safety risks for the public, and has unduly restricted public use of the right-of-way. In response to the foregoing facts, the city hereby enacts new Chapters 116 and 135 of the St. Paul Legislative Code relaung to right-of-way permits and administration, together with an ordinance making necessary revisions to other Code provisions �--�� These ordinances impose reasonable regulations on the placement and maintenance of equipment or facilities currenfly within its rights-of-way or to be placed therein at some future time. Under these ordinances, persons disturbing and obstructing the rights-of-way will beaz a fair share of the financial responsibility foz their integrity. Finally, these ordinances provide for recovery of out-of-pocket and projected costs from persons using the public rights-of-way. �..A.�.�.�....�....���..��.��.�.....�� . :: : :. : -. .� •: . ... �. . . .. . � :. : : : :. .. .: . : : :. � ::: : :� .:. .. - . . . ... . . . ... . � . : : :. . . . : . . .. . . � . . . . . � . . 26 27 28 29 30 31 32 33 34 35 '.. : ;� .. : � . :. : ... : . .� : . ..• : .• :. . . : : ..� . . .... : :. .. ..•: :. ..• :. :. . : : .: : . : :... : . :.: : :. . . :� : . : . . . . . . :.: - : :� . :� :: .: - - - . - - •...:,...,u:i.y.� - : . . - - . .: •• � : :. : • : .. - : . .: .:• �: : � : :. : �::. .: :. : . :. . .. : .. : � : . .: � : : : . . . : : � : ..� • .: . . :� . :: : :. : :� . . . ... � 1 . . . : : . � ::.. : : :. .: � : . . � :. : : .• :� : . : .. ..• . � : ..:. 2 00 -���' �' C� 8 9 lo 11 12 13 14 15 �i����i.i��a��nbo•rr.vaiiii:w�iaii��r.���r.�u nnn� l�l�l�tl�l��{I�l�l�l�J��R�I�\�. J�\\T1�1�•I�.�1� ' • • � � \ �� \ � - � - • � 1 � \ � ` �� � • 1 � \ \ • \ • • • • � • • • • � � • • • � � • • • • • • • • • • • • • • .:� : : . . : . . . . . . : � : : .� :. � : . . : ._ %I����61�N��GU�S•!•�• A � � The findings in the purpose statement in Chapter 135 are hereby incorporated in and adopted as part of this chapter. Sec. 116.02. Definitions. 16 The following definitions apply in both Chaptexs 116 and 135 of the Saint Paul I.egislative Code 17 (hereafter, "Chapters 116 and 135" or "these ordinances"). References hereafter to "sections" are, 18 unless otherwise specified, references to sections in the Saint Paul Legislative Code. Defined terms 19 remain defined terms whether or not capitalized. 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 (11 Abandoned Facilit�means a facili no loneer in service or physically disconnected from a portion of the operatin facility, or from anv other facility, that is in use or still carries service. A facilitv is not abandoned unless declazed so by the ri¢ht-of-way user. (�2) Applicant means any person requesting permission to excavate or obstruct a right-of-way. (�� City means the City of St. Paul, Minnesota. (34) City mana eg ment cost means the ' actuai costs incuned by the ciry maintainine informaUon on a Geographical Information Svstem ("GIS"1 mappin�ystem; inspectingjob sites and restoration proiects; maintaining, supporting�protectin�, or movinguser equipment or facilities during�ublic right-of-way work; deternuning the adequacy of ri�ht-of-way restoralion; restorin�work inadequately�erformed after providing notice and the o�portunity to correct the work• and revoking right-of-waypermits and perfomung , > , , all of the other tasks required by Chapters 116 and 135, including other costs the city may incur in managin�provisions of this chapter. (5) Construction performance bond means any of the followin� forms of security provided at the permittee's o�tion• a) individual �roiect bond• bl cash deposit c) security of a form listed or approved 0 0 -aGP' 1 under Minnesota Statutes section 15.73, subdivision 3: d) letter of credit, in a form acceptable to the 2 Director; e) self-insurance, in a form acceptable to the Director: and fl a blanket bond for projects 3 within the City, or other forms of construction bond, for a time s�ecified and in a form acceptable to the 4 D'uector. 6 7 8 9 (61 Degradation means a decrease in the useful life of the right-of-way caused by excavation in or disturbance of the right-of-way resulting in the need to reconstruct such ri�ht-of-way eazlier than would be rec�uired if the excavation or disturbance did not occur. 10 (7) Degradation cost means the coSt to achieve a level of restorauon as determined by the city at the 11 time the uermit is issued, not to exceed the mazcimum restoration shown i�lates 1 to 13, set forth in 12 Minnesota Rules 7819.9900 to 7819.9950. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 (81 Deeradation fee means the estimated fee established at the time of �ermittin�v the citXto recover costs associated with the decrease in the useful life of the right-of-wav caused bv the excavation, and which eqnais the de�radation cost. (9) Delay penalty is the penalt�posed as a result of unreasonable delavs in riaht-of-way excavation, obstruction, patching�or restoration as established bv pernut. (�10) Department means the department of public works of the city. (311) Department inspector means any person authorized by the director to cany out inspecUons related to the provisions of Chapters 116 and 135. (fi12) Director means the director of the departrnent of public works of the city, or i�er�er the director's designee. (�13) Diszuptive cost is the penalty imposed as the result of � the adverse impact on city citizens and others who are required to alter travel routes and times resulting from right-of-way obstructions. 33 ($� Downtown business district means that portion of the City of Saint Paul lying within and bounded 34 by the following streets: Beganning at the intersection of Shepard Road with Chestnut Street, Chestnut 35 Street to Interstate Freeway 35E, Interstate Freeway 35E to Interstate Freeway 94, Interstate 36 Freeway 94 to Lafayette Bridge, Lafayette Bridge to where the bridge crosses over Warner Road, 37 Warner Road to Shepard Road, Shepazd Road to Chestnut Street. 38 39 (�15) Emergency means a condition that (a) poses a clear and immediate danger to life or health, or of 40 a significant loss of property; or (b) requires immediate repair or replacement in order to restore service 41 to a customer. 4 00 -2t�' (196) Equipment means any tangible asset used to install, repair. or maintain facilities in anv ri hg t-of- wav or which obstmcts an� rieht-of-way. -- and-thesri�eettt�rb. (1�7) Excavate or Excavation means to dig into or in any way remove or physically disturb or peneuate any part of a right-of-way. 9 (1�� Excavation pernut means the pemut which, pursuant to Chapters 116 and 135, must be obtained 10 before a person may excavate a right-of-way. An Excavation permit allows the hoider to excavate that 11 �art of the right-of-way described in such permit. 12 13 14 15 16 17 18 19 20 (139� Excavation permit fee means money paid to the city by an applicant to cover the costs as provided in seetiar� Chapte7 135.A6: (201 Facility or Facilities means anY taneible asset in the ri¢ht-of-way. - � : : . : : :• :..� . . . : . 21 (�-521) Local representative means the person or persons, or designee of such person or persons, 22 authorized by a registrant to accept service and to make decisions for that registrant regarding all 23 matters within the scope of Chapters 116 and 135. 24 25 26 27 28 29 30 31 32 33 34 35 36 (22) Minnesota Rules means Minnesota Rules as published by the Revisor of Statutes as thev existed on June 1, 1999, whether or not they aze currentiv in force. (i{23) 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. (i-�� Obstruction pernut means the permit which, pursuant to Chapters 116 and 135, must be obtained before a person may obsUuct a right-of-way. (i-8�5) Obstruction pernut fee means money paid to the city by a registrant ep rmitee to cover the costs as provided in seetian Cha�ter 135.8Er. 37 (26) Patch or Patchin� means a method of pavement replacement that is temporary in nature. A patch 38 consists of (1) the compaction of the subbase and aggregate base, and (21 the replacement, in kind, of 39 the existing�avement for a minimum of two feet be�ond the edges of the excavation in all directions. A 40 patch is considered full restoration onlv when the pavement is included in the citv's five �eaz project 41 l�an 5 oc-a6P' 2 0 7 (271 Pavement means any type of improved surface that is within the public right-of-wa�and that is paved or otherwise constructed with bituminous concrete, aggregate, or gravel. (i9� Pemuttee means any person to whom a pernut to excavate or obstruct a right-of-way has been granted by the ciry under Chapter 116 or 135. i ♦ �- \ - h� •/�tfl4�r�lUtRUOljl� :w�aiiwrmii�aiiauni:iouwiui:w�r:inln�� $ , > > 9 > b 10 -- . an individual or entit �} subject 11 to the laws and rules of this state, however organized, whether public or private, whether domestic or 12 foreign whether for profit or non�rofit, and whether natural, corporate, or political. Examples include: 13 A) a business or commercial enterprise organized as anv type or combination of corporation, 14 limited liability company�partnership, limited liability�artnership, proprietorship, association, 15 cooperative, ioint venture, cazrier or utilitv, and anv successor or assignee of anv of them; 16 B) a social or chazitable organization; and 17 C) anKtvpe or combination of political subdivision, which includes the executive, judicialzor 18 legislative branch of the state, a local �overnment unit, or a combination of any of them. 19 20 21 22 23 24 25 (z"�� Probation means the status of a person that has not complied with the conditions of Chapters 116 and 135. (�31) Probationary period means one (1) yeaz from the date that a person has been notified in writing that they have been put on probation. 26 (�332) Registrant means any person who (1) has or seeks to have its equipment or facilities located in 27 any right-of-way, or (2) in any way occupies or uses, or seeks to occupy or use, the right-of-way or 28 any equipment or facilities located in the right-of-way. 29 30 (�33) Registration fee means money paid to the city bq�regisir�xt to cover costs associated with 31 registration. 32 . �:. .. . .: . . : : . . • : . . : : .. :� :. . ... .. . :.: :: : : . : . . . . . . ... . : . 36 37 38 39 40 41 (�634) Restore or Restoration means the process by which an excavated � right-of-way and surroundine area, including pavement and foundation, is returned to ° the same condition that existed before the excavation. (�� Restoration €ee cost means an amount of money paid to the ciry by a permittee to cover the cost 0 � of restoration. ;- -.� . . . . : � -. : � . :� :. . � ...: : � _. .. - . .... : :. :. : .. :..: :i -: i - - .- --. :� - .-- :� a : .:- - .-- : a - i � � ��"_' .� • - :�. _ • _ � ' � ' i • _ _ • . t ___ ' r _ _� •:." ' •'_ � � � •" 9 (3936) Right-of-way or Public Ri�ht-of-way means the 10 , , 11 , , > > 12 , , , , , > 13 , , , 14 . azea in, on, below, or above a public roadwav, hiehway. street, cartwav, 15 bicvcle lane and pubiic sidewalk in which the citv has an interest, includin�other dedicated ri hte s-of- 16 wav for travel putposes and utilit�easements of the city. A right-of-wav does not include tt�e airwaves 17 above a public rieht-of-wa�with reeard to cellular or other nonwire telecommunications or broadcast 18 service. 19 20 (3937) Right-of-way pernut means either the excavation permit or the obstruction pernut, or both, 21 depending on the context, required by Chapters 116 and 135. 22 23 (38) Rieht-of-wa�user means: (1) a telecotnmunications right-of-way user as defined by Minnesota 24 Statutes, section 237.162, subdivision 4; or (21 a person ownin¢ or controllin� a facilitv in the public 25 rlght-of-way that is used or is intended to be used for providing utilitXservice, and who has a rieht 26 under law, franchise, or ordinance to use th�ublic ri¢ht-of-wak 27 28 (3-�39) 5ervice or utility service includes (i) those services provided by a public utility as defined in 29 Minn. Stat. § 216B.02, subds. 4 and 6{�9�j; (ii) , , - , 30 , , , , , 31 , , ' a , seroices of a telecommunications right-of-way 32 user, includingtransportin� of voice or data information; (iii) the services of a cable communications 33 svstem as defined in Minn. Stat. § 34 396:63-E�j 238; �(iv) natural gas or electric energy or telecommunications services provided bv 35 the city;_ (vl services provided by a cooperative electric associaUon oreanized under Minn. Stat. § 36 308.A; and (vi) water, sewer, steam, cooling or heatin¢ services 37 . 38 39 (3�40) Supplementary application means an application made to excavate or obstruct more of the 40 right-of-way than allowed in, or to extend, an obstruction or excavation pernut that had already been 41 issued. 7 aa -acY � io 11 12 13 14 15 16 17 18 . . . . . :: . . . : . .. . .-�:�--�: : :, :, : . . . . : . . . : • : . .. : . :, . . . , , : : : .: .. : . . ::. - . . : . .:. : .• . . . _ . . ... , . :. :. . . : . :. : . : : :. • : . :. . : . : : : .. . . : . : . : , . . : : :. : . • :, , . . . : :.. :. : :, . . . ., : , :, . .. :: . . . . . ...: : . .: :, : :, ; , Sea 116.03. Administration. The director of the department of public works shall be the principal city official responsible for the administration of the rights-of-way, right-of-way pernuts, and the ordinances related thereto. The director may delegate any or all of the duties hereunder. Sec. 116.04. Utility coordination committee. 19 There is hereby created a utility coordination committee. This committee shall be voluntary and advisory 20 to the director. It sh� mav be composed of any registrants that wish to assist the 21 city in obtaining information and by making recommendations regarding ways to take greater 22 responsibility for the right-of-way, and to improve the process of performing construction work therein. 23 The director shall determine the size of such committee, make all a�pointments to such committee, and 24 establish any rules governin� such committee. Notice of the meetings of such committee shail be given 25 by the director to any registrant making a written request to the director to be so notified. 26 27 Sec. ll6.05. Regisuation and right-of-way occupancy. 28 29 Each person who occupies, uses, or seeks to occupy or use, the right-of-way or any equipment or 30 facilities located in the right-of-way, or who has, or seeks to have, equipment or facilities located in any 31 right-of-way shall register with the department. Registration will consist of providing application 32 information te as required by the director, , 33 , and payment of anv reeistration fee. 34 35 36 37 38 39 40 41 �.�.�� � ns � A1:1 � l�t.SJI � r: n ol.t• n r: u � lil � m�r. Ali ��l u uKi r.O [n � mirn ��:ti � n f.I:PI e HI �����wvw� .� � .: : :.� : : . . .� : . :• :. . :. . : . . . :. :. . : : : : : . : . . . .� .. - . : � : . � : : :�. : :. :. : :. . � , . : ; � :: - : . :.. : . . 00 -a��- :. . :. . : . . . :. : .. .. :. : .. . .. 2 3 No person may construct, install, repair, remove, relocate, or perform any other work on, or use any 4 equipment or facili or any part thereof located in any right-of-way without first being registered with 5 the department. 6 : :. : • . . . � . . :� :� : : : :. .: :� • � � . .• : . .;. . ;� � . . . I�1�6���11U�LL�ll�1� • - • � � • lo 11 12 13 14 15 16 17 18 19 Nothing herein or in Chapter 135 shall be constmed to repeal or amend the provisions of a city ordinance permitting persons to plant or maintain boulevazd plantings or gardens or in the area of right-of-way between their property and the street curb. Persons planting or maintaining boulevazd plantings or gardens shall not be deemed to use or occupy the right-of-way, and shall not be required to obtain any permits or satisfy any other requirements for planting or maintaining such boulevazd plantings or gardens under this chapter or Chapter 135. Sec. 116.06. , . Reserved. 1 °. . . : . : : .: � . . : . : .. . : . . : .• . .:. : .: : : . . . : • : : : : . . : 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 . . . : . .. .. : .. . :: . ;� . : : : . : . : : :� . . .:� : : :� : :� .:� : :: . . : . . :: .. .. . .: . . . . : . . . : . . . . . . :. :. : . !�rt�aaur.�lrauu�:��riwuui:biva:ii�� - - i - . :. . :.. � . . . . . : : .. . . .. .. . .. .. . . . .: •: .. :. . .• : . .:. . .� : . . . : : : : :� : - .. : . . . . :� :� . . • : : .: .. : :. Sec. 116.07. Registration information. The information provided to the department at the time of registration shall include, but not be limited to: 0 Co .a �8' (1) Each registrant's name, Gopher State One-Call registration certificate number, address and e-mail address if applicable, and telephone and facsimile numbers. 4 (2} The name, address and e-mail address, if applicable, and telephone and facsimile numbers of a local 5 representative. The local representative shall be available at all times. Current information regazding 6 how to contact the local representative in an emergency shall be provided at the time of registration. (3) A certificate of insurance or self-insurance: 9 10 a. Verifying that an insurance policy has been issued to the registrant by an insurance company licensed 11 to do business in the State of Minnesota, or a form of self insurance acceptable to the citv; 12 13 b. Verifying that the registrant is insured against claims for personal injury, including death, as weli as 14 claims for property damage arising out of the (i) use and occupancy of the right-of-way by the 15 registrant, its officers, agents, employees and pernuttees; and (ii) placement and use of facilities and 16 equipment in the right-of-way by the registrant, its officers, agents, employees and pernuttees, including, 17 but not limited to, protection against liability arising from completed operations, damage of underground 18 equipment and collapse of property; 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 c. Naming the city as an additional insured as to whom the coverages required herein are in force and applicable and for whom defense will be provided as to all such coverages; d. Requiring that the director be notified thirty (30) days in advance of cancellation of the policy; �n$ or material modification of a coverage term; e. Indicating comprehensive liability coverage, automobile liability coverage, workers compensation, and umbrella coverage in amounts established by the director of the office of risk and employee benefit management in amounts sufficient to protect the ciry and carry out the putposes and policies of Chapters 116 and 135. (4) If the person is a corporation, a copy of the certificate required to be filed under Minn. Stat. § 300.06 as recorded and certified to by the secretary of state. (5) A copy of the person's order rantine a certificate of authority from the Minnesota Public Utilities Commission, where the person is lawfully required to have such ceftificate from said commission or other state or federal a encies. . - - . : . . : .. • . . :� . . ., . . The registrant shall keep all of the information listed above cuirent at all times by providing to the 10 po -a`P 2 4 5 6 7 9 10 11 12 13 14 15 16 17 department information of changes within fifteen (15) days following the date on which the registrant has knowledge of any change. Sec. 116.08. Reporting obligations. (a) 6geratiens Each registrant shall, at the time of registration and by December 1 of each yeaz, file a construction and major maintenance plan with the department. Such plan shall be submitted using a format designated by the director and shall contain the information determined by the director to be necessary to facilitate the coordination and reduction in the frequency of excavations and obstructions of rights-of-way. The plan shall include, but not be limited to, the following information: (1) The speei€�locations and the estimated beginning and ending dates of a11 projects to be commenced during the next calendar year (in this section, a"next-year project"); and 18 (2) To the extent known, the tentative locations and estimated beginning and ending dates for all 19 projects contemplated for the €roe-{Sj four yeazs following the next calendaz year (in this section, a 20 "five-year project"). 21 22 The term "project" in this section shall include both next-year projects and five-year projects. 23 24 By January 1 of each year, the department will have available for inspection in its oYfices a composite 25 list of a11 projects of which it has been informed in the annual plans. All registrants are responsible for 26 keeping themselves apprised of the current status of this list. 27 28 29 30 31 32 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 that was listed by the other registrant. . •. : : -. . .: . ... .. : : . .: � : . . : :.. . .:. : •. . : : . : : : . : :. . � :� : :. . .:. :�: . . ..�-: : .. . . -: . :. . . . : - . : . :. :. . . . :. .: • - ' . . . . . . . . . • . . � . .. .� . . � . . .: : . : .. . .. 40 41 - . Notwithstanding the foregoing, the director may, for good cause 11 00 -a «' 2 3 4 5 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 shown, allow a registrant to submit additional next-yeaz projects. Good cause includes, but is not limited to, the criteria set forth in section li5.1�2(c) conceming the discretionary issuance of pernuts. Sec. 116.09. Mapping data. - .� .. . . . . . ..� . . . . . .� . . . . : • : ... : � . : . •• : . : : : . . .. , ... . : • •• � . : :� : � :� : :.. :: ... : :� . . . • : : . : . : . � : .:� . : .. - i � � - i - � : � - � � • � . � " i � � � � � . 1 i � � � ' � �" � � �" .�� • • "� "� 1 .�' Within sis (6) months after the acquisition, installation, or construction of additional eqniPment facilities or any relocation, abandonment, or disuse of existing equigment facilities, each registrant shall supplement the mapping dxfx information required herein. A person wishinp to undertake a proiect within the public ri¢ht-of-way shall submit a ri¢ht-of-way permit a�ulication which contains the following information: L,ocation and a�roximate depth of ap�licant's mains, cables, conduits, switches, and related equipment and facilities, with the location based on: a) offsets from propertY lines, distances from the center line of public rieht-of-way, and the curb lines as determined bv the director, b) coordinates derived from the coordinate system bein ug sed by the director; or cl an o� ther svstem a�reed u�on by the right-of-wav user and the director. The type and size of the utilitv facilities. A description showin a� bove ground appurtenances. A le e,g nd explainin�ymbols, chazacters, abbreviations, scale and other data shown on the mao• Anv facilities to be abandoned, if a�plicable in conformance with Minnesota Statutes 216D.04, subdivision 3. The pemvttee shall submit "as-built" drawin�s reflectin�an sv ubsequent chanees and variations from the information provided under this section. 39 The ri�ht-of-wav user is not required to provide or convey mappine information of data in a format or 40 manner that is different from that which it currentiv utilizes and maintains. The rieht-of-way user shall, 41 however, include the cost to convert the data funished b� right -of-way user to a format currentl� 12 ao -acY 1 use by the local nnit of �ovemment as part of the permit application fee. These data conversion costs, 2 unlike other costs that make u�pernut fees, makbe included in the permit fee after the permit 3 application process is completed and shall be immediately due to the citv upon the ascertainment of the 4 cost and notice of the fee to the apnlicant. Anypermit for which such fee has not been paid within 30 5 davs of notice from the citv ma�upon written notice be revoked. The cittishall not issue any other 6 nermits to this registrant until such fee is paid• 7 8 At the rec�uest of the Director, a riaht-of-way user shall �rovide existing data on its existing facilities 9 within the public right-of-wav in the form maintained bv the user at the time the request was made if 10 available. 11 12 At the request of any registrant, any information requested by the department which qualifies as a 13 "trade-secret" under Chapter 94 0£ the St. Paul Administrative Code or Minn. Stat. § 13.37(b) shall be 14 treated as trade secret information as detailed therein. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 ,�,.�..� . . : . '. .. � .:� . : . . : . :� . . . :. : : : . : . .• :- . -. -,--:� : :� :.. :: - : ::• - ..- -: - ... : . *. :� : . : : . � . . : :. . . .. : :� . *. �: . : _. ... -:: . .. � :.•:. . :.. � :. :. . . : : . '. .. , :� .. • . : . - - . : : '. :� : .. . : .. :. .:.:• :� . � : . :. ... -.: : :.. �_ � :. ..= . . .. Sec. 116.10. Location of ecttrigment facilities. 32 (a) Undergrounding. - , New 33 construction and the installation of new equipmerrt facilities shall be �ene located underground or 34 contained within buildings or other structures in confornuty with � applicable codes except that the 35 Director may aPprove the above ground location and installation of the followin i� f they do not create 36 � unreasonable safety, maintenance, or aesthetic concerns or conflict with the current use of the ri¢ht- 37 of_wav. 38 39 (11 New poles, and new �ole lines under 660 feet in leneth which do not conflict with existing or 40 planned trees or other facilities. 41 13 oo-ar.P' � C� 8 9 10 11 12 13 �) New ancillary facilities and ap�urtenances to existing facilities, such as transformers, meters, iunction boxes, splice boxes. (3) New junction boxes for existin�underaround utility service to individual locations and homes. (4) New cell towers and related new facilities and appurtenances which have already received zonin¢ and any other necessar�pprovals. 5 The re�air or replacement of existin�bove ground facilities with similaz or smaller new facilities. (61 Any other new faciliues which the Director has deternnined that, due to expense, nature, or function cannot reasonably be placed under�round. 14 (b) �rs Locations. The director shall assign specific eerri�ars locations within the right-of-way, 15 or any particular segment thereof as may be necessary, for each type of ec�vignrenf facilitv that is or, 16 pursuant to current technology, the director expects will someday be located within the right-of-way. 17 All excavation, obstruction, or other permits issued by the department involving the instailation or 18 replacement of e�ment facilities shall designate the proper eartider location for the eqnipnxenf 19 facili . 20 21 Any registrant whose �is facilities are located in the right-of-way in a position at variance with 22 the earri�ars locations estabiished by the director shall, no later than at the time of the next 23 reconstruction or excavation of the azea where its equipme�is facilities aze located, move that 24 ee�ipnxenf facilitv to its assigned position within the right-of-way, unless this requirement is waived by 25 the directar for good cause shown, upon consideration of such factors as the remaining economic life of 26 the facilities, public safety, customer service needs and hardship to the registrant. 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 (c) Nuisance. One (1) yeaz after December 11, 1996, any equipment or facilities found in a right-of-way that has not been registered shall be deemed to be a nuisance. The city may exercise any remedies or rights it has at law or in equity, including, but not limited to, abating the nuisance pursuant to section 45.11 of the Legislative Code or taking possession of the equipment ox facilities and restoring the right-of-way to a useable condition. (d) Limitation of space. The director shall have the power to prohibit or limit the piacement of new or additional � facilities within the right-of-way if there is insufficient space to accommodate all of the requests of registrants or persons to occupy and use the right-of-way. In making such decisions, the director shall strive to the extent possible to accommodate all existing and potential users of the right-of-way, but shall be guided primarily by consideraUons of the public interest, the public's needs for the particulaz utiliry service, the condition of the right-of-way, the time of yeaz with respect to essential utilities, the protection of existing eqni�tenE facilities in the right-of-way, and future city plans for public improvements and development projects which have been deternrined to be in the public interest. 14 ao-ac�' Sec. ll6.11. ReIocation of eqmgment existi� facilities. 2 3 When working in the rights-of-way, permittees shall not interfere with the safety and convenience of 4 ordinary travel along and over the rights-of-way nor interfere with other uses to which the rights-of-way 5 may be put by the City of St. Paul. ���nst A riaht-of-way user shall prompdy and at its own expense, with due regazd for seasonal working conditions, permanently remove and relocate its eqnipme�facilities in the � � - : - : �::- -.� �:�- a�: - .- - :.�� � -� . 1 = . ••: • : � . . :� . ..: . . : :.: . •:. • . : : : : :� :. : : - � - - .• . .:. :. . . . . : . . • . : . . .. . . . • . : .� , . :� . : � : .. . . . � . . � ... - : a :. : : . � 15 merel�for convenience of the city, in connection with: (ll a�resent or future local eovernment use of 16 the right-of-wa�for a public �roject; (2) the public health or safety: or (31 the safety and convenience 17 of erdirrmy travel over the right-of-way. 18 19 Notwithstanding the foregoing, a person shall not have to remove or relocate its eqni�nnent facilities 20 from any right-of-way which has been vacated in favor of a nongovernmental entity unless and until the 21 reasonable costs thereof aze first paid to the person therefor. 22 23 Sec. 116.12. Preexcavation eqnipmex�f facilitv location. 24 25 In addition to complying with the requirements of Minn. Stat. §§ 216D.01-.09 ("one call excavation 26 notice system") before the start date of any right-of-way excavation, each registrant who has ec�ipnrenf 27 facilities located in the area to be excavated shall mark the horizontal and approximate vertical 2$ placement of all said eqrrigmentfacilities . 29 30 Any registrnnt neht-of-wav user whose ectnigme� facilitv is less than twenty (20) inches below a 31 concrete or asphalt surface shall notify and work closely with the excavation contractor in an effort to 32 establish the exact location of its ec�niPment facilitv and the best procedure for excavation. 33 34 35 36 37 38 39 40 41 Sec. ll6.13. Damage to other ec�ipmerrt facilities. When the department performs work in the right-of-way a�r�gtiblie-prajeet and finds it su ort, or move a .PP,.._ ___ order to rotect -P� . . �.- as�ess,the costs associated therewith wfiich';will be billed to that registrant ev rson and must be paid within thirty (30) days from the date of billing. 15 ao -ac�' 1 Each registr�nt ep rson shall be responsibie for the cost of repairing any equipment or facilities in the 2 right-of-way which it or its equipment damages. Each re�t ep rson shall be responsible for the cost 3 of repairing any damage to the equipment or facilities of another regish�ant ep rson caused during the 4 city's response to an emergency occasioned by that ' erson's equipment or facilities. 5 Sec. 116.14. Right-of-way vacation. 7 8 If the city vacates a right-of-way which contains the ee�cri�nnent facilities of a registrant rieht-of-way user 9 and if the right-of-wav vacation does not require the relocation of the ri hg t_of_ 10 wa u�ser's ec�ttilnrtent facilities, the city shall, except when it would not be in the public interest, reserve 11 ., to and for itself and all registrants rieht-of-waXusers having ee�nipment 12 facilities in the vacated right-of-way, the right to install, maintain and operate �facilities in 13 the vacated right-of-way and to enter upon sueh the right-of-way at any time fi�-the-purpase-af to 14 reconstructimg, inspecting, maintaining or repairirtg the facilities same. 15 16 17 18 19 20 21 22 23 2�} 25 26 27 If the citv vacates a rieht-of-way that contains the facilities of a ri�ht-of-wav user and the vacation requires the relocation of the rieht-of-way user's facilities, pavment of the relocation costs must be deternuned as follows:; �n� (a) if the vacation proceedings aze initiated by the rieht of way user, the r�ht of way user must pay the relocation costs; or (b) if the vacation proceedings aze initiated by the city for a public proiect, the ri�ht of wa,�} user must pay the relocation costs unless otherwise agreed to by the ciry and the right of way user; or (c) if the vacation proceedings are initiated bq for the purpose of benefiting a person arpersax�s other than the rieht of way user, � the benefited person erpersans must pay the relocation costs. Sec. 11615. Indemnification and liability. 28 By reason of the acceptance of a registration or the grant of a right-of-way pemut, the city does not 29 assume any liability (a) for injuries to persons, damage to property, or loss of service claims by parties 30 other than the registrant or the city, or (b) for claims or penalties of any sort resulUng from the 31 installation, presence, maintenance, ar operation of equipment or facilities by registrants or activities of 32 registrant. 33 34 35 36 37 38 39 40 41 By , By accepting a pemut under Chapters 116 and 135 a registrant pemvtfee is required, to defend, indemnify, and hold the city whole and harmless from all liabilitv or claims of liabilitv for bodilv injury or death to persons, or for property dama�e, in which the claim: (Al alle�es a ne�ligent or otherwise wroneful act or omission of the reQistrant or its em�lovee, agent or independent contractor in installing, maintainin , or repaizin� equipment or facilities; and alleges that the city is liable, without alle in� anv independent ne�ligent, or otherwise wrongful act or omission on the part of the city: or B) is based on the city's ne�l�i e¢ nt or otherwise wroneful act or omission in issuin� the pemut or in failin t�o properlv or adequately inspect or �� oo-ac� . -. . .. . ., ,.-. -.- ,. . :. . ., , ::, : :, . . : :, . . . . . :., : :, :. .:,, . .. . : :. . . :. . :. . . :, ,. : :, • : . . :� . : , . � .. . . : :. : :� .. : : . . . . . . � ,�. � 7 3tThe re isg trant further agrees that it will not bring, nor cause to be brought, any action, suit or other 8 proceeding claiming damages, or seeking any other relief against the city for any claim nor for any 9 award arising out of the presence, installation, maintenance or operation of its equipment or facilities, or 10 any activity undertaken in oraear a uu lilic right-of-way, whether or not the act or omission complained 11 of is authorized, allowed or prohibited by a right-of-way permit. 12 13 The foregoing does not indemnify the city for its own negligence except for losses or claims occasioned 14 bv the negli�ent or otherwise wrongful act or omission of the citv to the extent authorized in part (B) of 15 this section re¢ardina the issuance of a pernut or the inspection or enfarcement of compliance with the 16 pernut; or when othenvise provlded in an applicable franchise aereement. ' 17 , > 18 , 19 , , , . 20 21 This section is not, as to third parties, a waiver of any defense or immunity otherwise available to the 22 registrant, or to the city; and the registrant, in defending any action on behalf of the city, shall be entitled 23 to assert in any action every defense or immunity that the city couid assert in its own behalf. 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 Sec. 116.16. Puture uses. In placing any equipment ar facilities, or allowing it to be placed, in the right-of-way, the city is not liable for any damages caused thereby to any regis�'s eeiuipment facilities which is are already in place. No regish e�rson is entitled to rely on the provisions of Chapter 116 or 135, and no special dury is created as to any regish�xnt e�rson. Chapters 116 and 135 are enacted to protect the general health, welfaz'e and safety of the public at luge. Sec. 116.17. . Discontinued operations. A registrant who has determined to discontinue all or a portion of its operations in the city must either� {}�Pprovide information satisfactory to the director that the registranYs obligations for its ec�uiPnxent facilities in the right-of-way under this chapter and Chapter 135 have been lawfully assumed by another registrant; or the ci . Sec. 116.18 . Abandoned facilities. 17 no -a cP' 1 Any registrant who has abandoned facilities in any nght-of-wav shall remove it from that riQht-of-wav if 2 required in conjunction with other right-of-watirepair excavation or consuuction or as otherwise 3 required bv law, unless this requirement is waived bv the director. 4 C� 9 1� 11 12 13 14 15 16 �s .. . : :� . : . ... .� : . , . : ,.. �. . . . . . :. . : . . : � : . .. . :� inae� r.wt:in i:i:i:nn ni i iw I ��b � :� - :� - -i.• •" i _..� � �1� \\4�I���1�111�F11M•J�.l�rU1�l�JLL�A� ��PI�P������r1��O1�1���A71�A1�U\�l���l•f4�.�J�I�J�/�l�AU4� : . . . :� : :� : . . . .:� : : . : . •• . � :� :� . . : . . : : . :.:� :: : = .: .. : : . . . : : . ��..� . : : : :. .. . : : � : . :.: -:� .. .. : . :�. - .. . . :. . :� . � : :.. :. : : : : :. .• . . .� . .• 1 :� - . - . : .. : . . : . • : : 21 22 23 24 25 26 : . . : .. : : . . :. :. . : ; .... :. . . _ : •�: :. - : . � :. :.• : . Sec. 116.1$9. Reservation of regulatory and police powers. 27 The city by the granting of a right-of-way permit, or by registering a person under sections ll6.05 28 through 116.07, does not surrender or to any extent lose, waive, impair, or lessen the lawful powers 29 and rights, which it has now or may be hereafter vested in the city under the Constitution and statutes of 30 the State of Minnesota and under the Charter of the City of Saint Paul to regulate the use of the 31 right-of-way by the permittee; and the pernuttee by its acceptance of a right-of-way permit or of 32 registration under sections 116.05 through 116.07 must agree that all lawful powers and rights, 33 regulatory power, or police power, or otherwise as are or the same may be from time to time vested in 34 or reserved to the city, shall be in full force and effect and subject to the exercise thereof by the city at 35 any time. A permittee or registrant is deemed to acknowledge that its rights are subject to the regulatory 36 and police powers of the city to adopt and enforce general ordinances necessary to the safety and 37 welfare of the public and is deemed to agree to comply with a11 applicable general laws and ordinances 38 enacted by the city pursuant to such powers. 39 40 Any conflict between the provisions of a registration or of a right-of-way permit and any other present 41 or future lawful exercise of the city's regulatory or police powers shall be resolved in favor of the latter. �.'.� ao _a� 0 10 11 12 13 14 15 16 17 18 19 Sec. 116.i Severabiliry. If any section, subsection, sentence, clause, phrase, or portion of this chapter or Chapter 135 is for any reason held invalid or unconstitutional by any court or administrative agency of competent jurisdiction, such portion shall be deemed a sepazate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof. If a regulatory body or a court of competent jurisdiction should detemune by a final, nonappealable order that any pemut, right or registration issued under Chapters 116 and 135 or any portions of these chapters is illegal or unenforceable, then any such pezmit, right or registration granted or deemed to exist hereunder shall be considered as a revocable permit with a mutual right in either party to ternunate without cause upon giving sixty (60) days written notice to the other. The requirements and conditions of such a revocable pezmit shall be the same requirements and conditions as set forth in the pernut, right or registration, respectively, except for conditions relating to the term of the permit and the right of temunation. If a pernut, right or registration shall be considered a revocable pemut as provided herein, the pernuttee must acl:nowledge the authority of the city council to issue such revocable permit and the power to revoke it. Sec. 116.261. Board of water com�missioners; city. 20 Notwithstanding anything to the contrary in this Chapter ll6 or in Chapter 135 of the Legislative Code, 21 the board of water commissioners established pursuant to 1885 Minn. Laws, Ch. 110, may, at its 22 discretion, satisfy requirements for the posting of a bond by written undertaking which obligates said 23 board as a surety with respect to such requirements. The said boazd may also, at its discretion, satisfy 24 requirements for obtaining and maintaining insurance by written undertaking obligating said board to the 25 city as required in said chapters, provided, however, that such undertaking need not waive liability limits 26 or defenses available to it as a body corporate and politic organized and existing under the laws of 27 Minnesota. The city is excepted from the insurance and bonding requirements of these chapters. 28 29 30 31 32 33 34 35 3b 37 38 39 40 41 section 2. L,egislative Code Chapter 135, is hereby amended to read: Chapter 135. Right-of-Way Pemuts Sec. 135.01. Purpose. In order to provide for the heaith, safety and well-being of its populace as it uses the up blic rights-of-way, as well as to ensure the structural integrity of its rights-of-way, the city desires to minimize the number of obstructions and excavations taking place thereon. The purpose of this chapter is to regulate obstructions of and excavations in the rights-of-way by providing, among other things, for the issuance of pernvts granting authority to obstruct or excavate 19 po-a�P' � 10 il 12 13 14 15 16 therein and by providing for the subsequent restoration of the rights-of-way. The findings and purpose statement in Chapter 116 is hereby incorporated in and adopted as part of this chapter. Sec. 135A2. Definitions. The definitions found in section 116.02 of the St. Paul L,egislative Code (hereinafter, "I.egislative Code") apply to this chapter. 5ec. 135.03. Pernut requirement. Except as otherwise provided in the Legislative Code, no person may obstruct ar excavate any right-of-way without first having obtained � the appropriate right-of-wav permit from the department to do so. 17 (1) Excavation permit. An excavation pernut is r�ed to excavate 18 that part of the right-of-way described in such pernut and to hinder free and open passage over the 19 specified portion of the right-of-way by placing equipment described therein, to the extent and for the 20 duration specified therein. 21 22 (2) Obstruction pernut. An obstruction permit is r uired to hinder 23 free and open passage over the specified portion of right-of-way by placing equipment described 24 therein on the right-of-way for the durauon specified therein. 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 No person may excavate or obstruct the right-of-way beyond the date ar dates specified in the permit unless � such person {'rj makes a supplementary application for another right-of-way pernut before the expiraUon of the initial permit, and (ii) a new pernut or pernut extension is granted. Pernuts issued under this chapter shali be conspicuously displayed at all Umes at the indicated work site and sha11 be available for inspection by department inspectors and authorized city personnel. Sec. 135.04. Permit applications. Application for a permit is made to the director. Right-of-way pernut applications shall contain, and will be considered complete only upon compliance with, the requirements of the following provisions: (1) Registration with the departznent pursuant to Chapter 116. � ao-ace' 9 10 11 12 13 14 15 16 17 18 19 20 (2) Submission of a completed permit applicauon form, including all required attachments, and scaled drawings showing the location and azea of the proposed project and the location of all existing and proposed equigment facilities. (3) Payment of all money due to the city for: a. Prior obstructions or excavations; b. Any loss, damage, or expense suffered by the ciry as a result of applicanYs prior excavations or obstructions of the rights-of-way or any emergency actions taken by the ciry; c. ��5� Pernut fees and costs d. Any franchise fees in arreazs, due, owing and unpaid. � i � • ' ' - i � - ' - i i • � � i ' i ' : i i i - - i � � - � • • .. � • • �- � - .� � : ::: : :� . . Sec. 135.05. Issuance of pernut; conditions. 21 If the director deternunes that the applicant has satisfied Yhe requirements of Chapters 116 and 135, the � ���;, .� ,_, 22 director ma}�i� . I issue a permit. Such permits may, in the discretion of the director, be issued as 23 'barious location" pernuts, with or without conditions as provided in this section. 24 25 The director may impose reasonable conditions upon the issuance of the pernut and the performance of 26 the applicant thereunder in order to protect the public health, safety and welfare, to insure the structural 27 integrity of the right-of-way, to protect the property and safety of other users of the right-of-way, and 28 to minimize the disruption and inconvenience to the traveling public. Without limiting the foregoing, the 29 director, to protect the public health, safety and welfare, to insure the structural integrity of the 30 right-of-way, to protect the property and safety of other users of the right-of-way, and to minimize the 31 disruption and inconvenience to the traveling public, shall develop permit conditions that provide 32 reasonable assurance that uUlities and/or their contractors working in the right-of-way are competent 33 and qualified. These permit conditions shall include, but not be limited to, instruction in state and local 34 35 36 37 38 39 40 41 laws, including one-call, construction zone traffic safety, and construction standards, including restoration standards. Sec. 135.06. Permit fees. (a) Excavation permit fee. The excavation permit fee sha11 be in an amount sufficient to recover the following costs if a�licable: 21 oo-ar.8' 2 3 4 6 7 (1) The city mana�ement cost; arcd � The dismptive cost; . � • .. . :� : :� � : = : . . : : . :.. . � : � - .-• .. . . . . . : . :. . ; . � : ;: . . .. .: : � . :. : . . . : . 1 .. : . • . : . .: : : . . . : :� :� .... . . :. : : : : : . 13 14 15 16 17 18 19 20 2l (b) Obstruction pemut fee. The obstruction pernut fee shall be in an amount sufficient to recover the following costs if a�plicable: (1) The city mana ee ment cost; � � The disruptive cost; and (�3) The mapping data cost sqstem. 22 (c) Payment of permit fees. l�o excavation permit or obstruction pemut shall be issued without payment 23 of srreh excavation or obstruction permit fees, The 24 director may allow applicant siraH-agree to pay such fees within thirty (30) days of billing tkere€er. 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 (d) Computation of disruptive cost. The director shall determine the disruptive cost component of the fees for excavation and obstruction, and in doing so shall have the purpose of providing a financial incentive to pernuttees to minimize their obstruction and use of the right-of-way and to get in and get out of the right-of-way as quickly as possible. In aid of that purpose, the director shall use in the computation of the disruptive cost, to the extent practicable, economic and accounting principles relating to the quantification of the social costs resulting from street obstructions, including (1) losses to businesses and merchants which would not have occurred but for the obstructions, and (2) social costs to the users of the right-of-way resulting from traffic delays, diversions, disruption in services, missed or delayed appointments, and decline in quality of life. Fees may vary from one (1) location to another based on the size of the azea to be obstructed; tlae duration that the right-of-way or parts of it will be unavailable for public use and travel; the proximity of businesses and enterprises which rely in whole or in part on access by members of the public or the delivery of supplies or raw materials; the importance of the particular right-of-way as to the traveling public; the use of the particular right-of-way for emergency vehicles and the availability of altemate routes; the traffic volumes carried by the particular right-of-way; and the amount of vehiculaz, bicycle, and pedestrian traffic that is reasonably likely to be disrupted thereby. 22 00 -��8' (e) Use of permit fees. All obstruction and excavation pernut fees shall be used solely for city management, construction, maintenance and repair costs of the right-of-way. 4 (� �ransitian permit fees. pezmit fees for street usage, excavation and 5 obstrucrion =---`-`---- -- '�--'—'�-� '', '�"' pursuant to chapters 116 and 135, shall be proposed 6 by the director and established from time to time bv ciry council; 7 by resolution, . 8 9 10 11 12 13 14 15 16 17 18 19 (g) All permit fees shall be doubled during a probationary period. Sea 135.07. DelayPenaltv. In accordance with Minnesota Rule 7819.1000 sub�. 3, the Director shall impose a delay penaltv for unreasonable dela�s in riQht-of-way excavation, obstruction, patchin¢, or restoration b�permitee. The delav penaltv shall be proposed bv the Director and established from time to time bycitv council resolution. Sec. 135.0�8. Right-of-way �atching and restoration. 20 The work to be done under the permit, and the patching and restoration of the right-of-way as required 21 herein, must be completed within the dates specified in the pernut, increased by as many days as work 22 could not be done because of circumstances consUtuting force majeure or when work was prohibited 23 as unseasonal or unreasonable under this chapter. s�A: In addition to patchingits own work, 24 the pernuttee must restore the general area of the work, and the surrounding azeas, including the paving 25 and its foundaUons, to the same condition that existed before the commencement of the work�sf 26 - 27 - `��. 28 29 30 31 32 33 34 35 36 37 38 39 40 41 In its application for an excavation pernut, the pernuttee may choose either to have the city restore the right-of-way or to restore the right-of-way itself. (1) City restoration. If the city restores the right-of-way, i� �ernuttee shall pay the costs thereof within thirty (30) days of billing. If, - following such restaration, the �tek pavement settles due to permittee's improper backf'illang, the permittee shall pay to the city, within thirty (30) days of billing, . all costs associated with correcting the defective work. (2) Pernuttee restoration. If the permittee _ ��o restores the right-of-way itself, it shall at the Ume of application of an excavation permit: �• . �" � �• � n � G - - i •� � i - • � •- "• ' - i - i - - "i" 23 oo-aG8' . -- . . . - :.. . - - . - . �. �. . . . . �: ' i - • - i i - i . i � • � - ' � - � :� . - ..� - " i • • :r: �' ��- i � - •- - i �� - �i :� •' - - 'i 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 � : n d� - i• .:�' • " i � - : i - � �i •� i � "i� -�" � •-- : _ : , . :� . : : . .: . � . . ;. : . . : . . . The pernuttee shall perform tlre�zark excavation, backfillin�patchin� and restoration according to the standazds and with the materials specified by the director. The director shall have the authority to prescribe the manner and extent of the restoration, and may do so in written procedures of general application or on a case-by-case basis. The director in exercising this authority shall be guided by Minnesota Rules 7819.1100. . , � , , - - , - - D - - > VJIU��UIV ��t�l\'i'IYlti�� t�lbr� Methods of restoration may include, but are not limited to, patching, replacement of the right-of-way base, and milling and overlay of the entire area of the right-of-way affected by the wark. 26 - - , 27 - . - - , The permittee 28 shall correct defects in patching, or restoration performed by permittee or its agents. Pernuttee, upon 29 noUfication from the department, shall correct all restoration work to the extent necessary, using the 30 method required by the department. Said work shali be completed within five (5) working days of the 31 receipt of the notice from the department, not including days during which work cannot be done 32 because of circumstances constituting fozce majeure or days when work is prohibited as unseasonal or 33 unreasonable under seetieiri3�:}� Cha�ters ll6 and 135. 34 35 If the permittee fails to restore the right-of-way in the manner and to the condition required by the 36 department, or fails to satisfactorily and timely complete all re�xirs restorations required by the 37 department, the department at its option may do such work. In that event the pemuttee shall pay to the 38 city, within thirty (30) days of billing, the cost of restoring the right-of-way. 39 40 If the �emuttee elects not to restore the public ri�ht-of-way, the director shall impose a degradation fee. 41 However the right-of-wa� user shall remain re�onsible for patching, and the dearadation fee shail not 24 00 - �cr 2 4 5 include the cost to accom�lish these responsibilities. Sec. 135.0$9. Joint applications. Registrants may jointly make application for permits to excavate or obstruct the right-of-way at the same place and time. 7 8 Registrants who join in and during a scheduled obstruction or excavation performed by the department, 9 whether or not it is a joint application by two (2) or more registrants or a single application, are not 10 required to pay the obstruction and degradation portions of the pemut fee. 11 12 Registrants who apply for permits for the same obstruction or excavation, which is not performed by 13 the department, may share in the payment of the obstruction or excavation pemut fee. Registrants must 14 agree among themselves as to the portion each will pay and indicate the same on their applications. 15 16 Sea 135.6910. Supplementary applications. 17 18 A right-of-way pemut is valid only for the azea of the right-of-way specified in the pernut. No pernuttee 19 may perform any work outside the area specified in the pernut, except as provided herein. Any 20 pernuttee which detemnines that an area greater than that specified in the permit must be obstructed or 21 excavated must, before working in that greater area: (i) make application for a pernut extension and pay 22 any additional fees necessitated thereby, and (ii) be granted a new permit or permit extension. 23 24 A right-of-way pernut is valid only for the dates specified in the pernut. No pernuttee may begin its 25 work before the pernut start date or, except as provided herein, continue working after the end date. If 26 a pemuttee does not finish the work by the pern�it end date, it must make application for a new pernut 27 for the additional time it needs, and receive the new permit or an extension of the old permit before 28 working after the end date of the prevlous pernut. This supplementary application must be daixe 29 aDqroved before the permit end date. 30 31 32 33 34 35 36 37 38 39 40 41 Sec. 135.161. Other obligations. Obtaining a right-of-way permit does not relieve pernuttee of its duty to obtain all other necessary permits, licenses, and authority and to pay all fees required by any other city or other applicable ; , , rules, laws or regulations. A permittee shall comply with all requirements of local, sfate and federal laws, including Minn. Stat. §§ 216D.01-.09 ("one call excavation notice system"). A permittee shall perform all work in conformance with all applicable codes and established rules and regulations, and is responsible for all work done in the right-of-way pursuant to its permit, regazdless of � p a -a��' G� 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 who performs the work. Except in the case of an emergency, and with the approval of the director, no right-of-way obstruction or excavation may be performed when seasonally prohibited or when conditions are unreasonable for such work. A pemvttee shall not so obstruct a right-of-way that the natural free and clear passage of water through the gutters or ottaer waterways shall be interfered with. Private vehicles may not be parked within or adjacent to a pernut azea. The loading or unloading of trucks adjacent to a pernut azea is prohibited unless specifically authorized by the pemut. Sec. 1351�2. Denial of permit. (a) Mandatory denial. Except in the case of an emergency, no right-of-way pernut will be granted: (1) To any person required bq-��eetian-i3-GB5 to be registered who has not done so; (2) To any person required bY`�eetie�Kr.9& to file an annual report but has failed to do so; (3) For any next-year project not listed in the construction and major maintenance plan required under seetien chapter 116$8S"reportin� obli�ations"l; (4) For any project which requires the excavation of any portion of a right-of-way which was constructed or reconstructed within the preceding five (5) years; (5) To any person who has failed within the past three (3) years to comply, or is presently not in full compliance, with the requirements of Chapters 1 l6 and 135; (6) To any person as to whom there exists grounds for the revocation of a pernut under seefien chapter 135.� 39 (b) Permissive denial. The director may deny a pernut in order to protect the public health, safety and 40 welfaze, to prevent interference with the safety and convenience of ordinary travel over the 41 right-of-way, would cause a conflict or interfere with an exhibition, celebration, festival, or an o� 26 � . . : :� . - .: . . � : ., .:� .: ��:.: :. . : . . . . •:. . � : : : 00 -scr � 0 10 11 12 13 event, or when necessary to protect the right-of-way and its users. The director, in her or his discretion, may consider one (1) of more of the following factors: the extent to which right-of-way space where the permit is sought is available; the competing demands for the particulaz space in the right-of-way; the availability of other locations in the right-of-way or in other rights-of-way for the equi�nnerr� facilities of the permit appiicant; the applicability of ordinance or other regulations of the right-of-way that affect location of equipme� facilities in tl�e right-of-way; the degree of compliance of the applicant with the terms and conditions of its franchise, Chapters 116 and 135, and other applicable ordinances and regulations; the degree of disruption to surround'ang communities and businesses that will result from the use of that part of the right-of-way; the condition and age of the right-of-way, and whether and when it is scheduled for total or partial reconsuuction; and the balancing of the costs of disruption to the public and damage to the right-of-way, against the benefits to that part of the public served by the expansion into additional parts of the right-of-way. 14 (c) Discretionary issuance. Notwithstanding the provisions of sections 135.1�2(a)(3) and 15 135.142(a)(4), the director may issue a pernut in any case where the permit is necessary (a) to prevent 16 substantial economic hardship to a customer of the pemtit applicant; or (b) to allow such customer to 17 materially improve its utility service; or (c) to allow a new economic development project; and where 18 the pernut applicant did not have knowledge of the hazdship, the plans for improvement of service, or 19 the development project when said applicant was required to submit its list of next-yeaz projects. 20 21 22 23 24 25 26 27 28 (d) Pernuts for additional next-year projects. Notwithstanding the provisions of this chapter seetian �33cHH�jf3} the director may issue a pernut to a registrant who was allowed under seetien chapter ll6�${ej to submit an additional Next-yeaz project, such pemut to be subject to all other conditions and requirements of law, including such conditions as may be imposed under seetian cha�ter 135:65. Sec. G135'13) Appeal 29 A right-of-way user that: (1) has been denied registration; (21 has been denied a pernut; (3) has had a 30 permit revoked; or (4) believes that the fees im�osed are invalid, mayhave the denial, revocation, or 31 fee imposition reviewed, u�on written request, bv the citv council. A decision bv the citv council 32 affirming the denial, revocation, or fee imposition shall be in writing,and supported by written findinQs 33 establishins the reasonableness of the decision. 34 35 36 37 38 39 40 41 Sec. 135.1�4. Installation requirements. The excavation, backfilling, patching, restaration, and ali other work performed in the right-of-way shall be done in conformance with "The Standard Specifications for Street Openings" as promulgated by the director, Minn. Rules 7819.1100 and 7819.5000, and at a location as required by seetiair i�6-1� this code. 27 oc-ab� 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Sec. 135.135.Inspection. When the work under any permit hereunder is completed the pemuttee.as authorized by Minn. Rules Part 7819.1300 shall �q submit a completion certificate to the director at tt�e time the project is com�leted. The completion statement. sianed by a nerson desi¢nated by the ri¢ht-of-wav user as a responsible emplovee, shall show the com�letion date for the work performed, identify the installer and designer of record, and certify that the work was completed accordine to the requirements of the director Pernuttee shall make the work-site available to the department inspector and to all others as authorized by law for inspection at all reasonable times during the execution and upon completion of the work. At the time of inspection the department inspector may order the immediate cessation of any work which poses a serious threat to the life, health, safety or well-being of the public. The department inspector may issue an order to the registr�rct pernrittee for any work which does not conform to the applicable standards, conditions or codes. The order shall state that failure to conect the violation will be cause for revocation of the pernut. Within ten (10) days after issuance of the order, the registr�rf �ernuttee sha11 present proof to the director that the violation has been corrected. If such proof has not been presented within the required time, the director ma� revoke the permit�ursn�te : . Sea 135.1�6. Work done without a permit. (a) Emergency situaUons. Each registrant shail immediately notify the director or the director's designee of any event regazding its ec�cupmenf facilities which it considers to be an emergency. The registrant may proceed to take whatever actions aze necessary in order to respond to the emergency. Within two (2) business days after the occunence of the emergency, the registrant shall apply for the necessary pernuts, pay the fees associated therewith and fulfill the rest of the requirements necessary to bring itself into compliance with Chapters 116 and 135 for the actions it took in response to the emergency. 32 In the event that it becomes awaze of an emergency regarding a registrant's equipment ar facilities, the 33 department may attempt to contact the local representative of each registrant affected, or potentially 34 affected, by the emergency. In any event, the department may take whatever action it deems necessary 35 in order to respond to the emergency, the cost of which shall be bome by the registrant whose 36 equipment or facilities occasioned the emergency. 37 38 39 40 41 (b) Nonemergency situations. Except in the case of an emergency, any person who, without first having obtained the necessary permit, obstructs or excavates a right-of-way must subsequently obtain a permit, pay double the normal fee for said pernrit, pay double all the other fees required by the L.egislative Code, deposit with the departrnent the fees necessary to correct any damage to the m ao - a6P' 2 4 5 6 7 right-of-way and comply with all of the requirements of Chapters 116 and 135. Sec. 135.157. Supplementary notification. If the obstzuction or excavation of the right-of-way begins later or ends sooner than the date given on the pernut, permittee shall notify the department of the accurate information as soon as this information is known. 9 If the obstruction of a right-of-way is of a shorter duration than that estimated on the permit application, 10 the department will, upon request, refund or credit to the permittee a proportionate amount of the 11 permit fee. 12 13 Sec. 135.1b8. Revocauon of pernuts. 14 15 Registrants hold pernuts issued pursuant to the I,egislative Code as a privilege and not as a right. The 16 city reserves its right, as provided herein, to revoke any right-of-way permit, without fee refund, in the 17 event of a substantial breach of the terms and conditions of any statute, ordinance, rule or regulation, or 18 any condition of the pemut. A substantial breach by permittee shall include, but shall not be limited to, 19 the following: 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 (1) The violation of any material provision of the right-of-way pernut; (2) An evasion or attempt to evade any material provision of the right-of-way pernut, or the perpetration or attempt to perpetrate any fraud or deceit upon the city or its citizens; (3) Any material misrepresentation of fact in the application for a right-of-way pernrit; (4) The failure to maintain the required bonds and/or insurance; (5) The failure to complete the work in a timely manner; or (6) The failure to correct a condition indicated on an order issued pursuant to this chapter seeti�n i3�3; (7) Hiring illegal aliens; (8) Failing to report damage to other utilities; (9) Failing to report injuries. If the director deternunes that the permittee has committed a substantial breach of a term or condition ►�S �a -acY 1 of any statute, ordinance, rule, regulation or any condition of the permit, the director shall make a 2 written demand upon the pertnittee to remedy such violation. The demand shall state that continued 3 violations may be cause for revocation of the permit. Further a substantial breactL as stated above, will 4 allow the director to place additional or revised conditions on the permit. 10 11 12 13 14 15 16 17 18 19 20 21 Within twenty-four (24) hours of receiving notification of the breach, permittee shall contact the director with a plan, acceptable to the director, for its correction. Pernuttee's failure to so contact the director, or the pernuttee's failure to submit an acceptable plan, or permi[tee's failure to reasonably implement the ap�roved Dlan, shall be cause for immediate revocation of the permit. Further, pernuttee s failure to so contact the director, or permittee s failure to submit an acceptable plan, or pemuttee's failure to implement the approved plan, shall automatically place the permittee on probation for one (1) full year. From time to time, the director may establish a list of conditions of the permit which, if breached, will automatically place the permittee on probation for one (1) full yeaz, such as, but not limited to, working out of the allotted time period, working on right-of-way grossly outside of the permit, failing to report utility hits, failing to report injuries or hiring illega] aliens. If a pernuttee, while on probation, commits a breach as outlined above, pernuttee's pertnit will automatically be revoked and permittee will not be allowed further permits for one (1) full year, except for emergency repairs. 22 If a pernut is revoked, the pernuttee shall also reimburse the city for the city's reasonable costs, 23 including restoration costs and the costs of collection and reasonable attorneys' fees incurred in 24 connection with such revocation. 25 26 Sec. 135.1�9. Nonexclusive remedy. 27 28 The remedies provided in this chapter and in Chapter 116 and other chapters in the Legislative Code 29 aze not exclusive or in lieu of other rights and remedies that the city may have at law or in equity. The 30 city is hereby authorized to seek legal and equitable relief for actual or threatened injury to the public 31 rights-of-way, including damages to the rights-of-way, whether or not caused by a violation of any of 32 the provisions of this chapter or other provisions of the L.egislative Code. 33 34 35 36 30 � � ORiGINAL 1 2 3 4 5 6 7 8 9 10 li 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00 -xr Section 3 This ordinance is effective 30 days after its passage, approval and publication. a fl ���II.��:l9► Adoption Certified by Council Secretary By: Approved by May� nate By: /_// Requested by Department of: ��_ Public Works � � By: � Form Approved by Ci y At Y sy: '�_ a� � ' � 3. � . oc� �.�-- Approved bY Mayor for Submission to Council By: l/' A�''^� 'J c��1'Q 33° 3r Adopted by Council: Date �-��� `_� �� v DEPARTMENT/OFFICE/COUNCIL DATE I ITIA / 102715 PublicWorksDepartment 2 u o GREEN SHEE� CANTACT PEflSON & PF10NE � INITIAUDATE �DEPAHiMENT ECTOR ❑4 CRYCIXINCIL homasKuhfetd 266-6111 Nu ���A-R�°�'� ❑cmc�wK M BE ON COUNqLA BY�NQ;� (� p pOUi1NG I� g�prE7 DIREGTOR ❑ FlN. & MGT. SERVICES Dlfl. � o�,��,��,��� ❑ AL�OFSIGWITUHEPAGES 1 (GLIPALLLOCAli0N5FOR51GNA7LflE) uASSIX:IATE uDEPT.ACCAUNfANT ON REQUFS7ED pproval of the attached Righi-of-Way management ordinance. aECOntMENDAnOnS: appmve (A) or Rejeu (a) pEpgpNAL SERVICE CONiRACTS MUS7 ANSWER THE FOLLOWING QUESTIONS: PLANNINGCOMMISSION _GVILSERVICECOMMISSION 1. HasthispersoNfirtneverworkedunderacontrac[forthisdepartment? CIBCAMMmEE YES NO — — 2. Has this persoNfirtn ever been a ciry employee? A sraFF _ YES NO DIS7RiCr CoUNa� 3. Does this person/firtn possess a sWll �oi nortnally possessed by any curtent ciry employee? — — YES NO SUPPOFTS WM�CH COUNCIL OBIECTIVE? Explain all yes answers on separate sheet and aifach to gree� sheet INfTIAl1NG PROBLEM, ISSUE, OPPORTUNITY (WHO, WHAT, WHEN, WHERE, WHh: State legislation and Public Utility Commission rules adopted since current chapters 116 and 135 require changes in our legislative code to be compatible. The proposed changes were developed together with MinReapolis and the League of Minnesota Cities. ADVANrAGESIFAPPROVED: Chapters 116 and 135 of the Legislative Code will be more legaliy correct. In addition, undergrounding has been refined. � � y � //a. /G DISADVAMAGES IF APPROVED. More above ground facilities will be constructed. ��:,=�;; �� y ,•e, �;����.��� ���..> �ir�i� �} i L�1'�.��'ii iY✓� '�sv'� - y .i " . :'1 p 5' 1.G �Yi.<� at T C : § .i� � �a N `:�v' : i 4 1 � ♦ � DtSADVAMAGES IF NOT APPfipVED Chapters 116 and 135 of the Legislative Code will not reflect recent State legislation and Public Utilities Commission rules. Telecommunications and Cable companies will have problems upgrading their service. �av�h � sSa��:^,.�4 ��?P�¢�� ���� � 6 ZQ�O OTALAMOUN70FTRANSACTION$ NotApplicable COST/REVENUEBUDGE7ED(C�RCLEON� YES No FUNDING SOUFiCE ACINfTY NUMBER FINANCIAI_ INFOFMATION: (EXPLAIN) OR1GiNAL Council File # o� — 3Gp' Ordinance # Green Sheet # 0 2 � F S ORDINANCE CITY OF SAINT PAUL, MINNESOTA Presented $y Referred To _ Date 33 An ordinance amending I,egislative Code Chapters 116 and 1 provide for regulation of the public right-of-way. THE COUNCIL OF THE CITY OF section 1 Legislative Code Chapter 116, i� Chapter 116. Right-of-Way Administration Sec. 116.01. Findings and purpose. the Saint Paul L.egislative Code to ��1� � • � • 1� amended to read: In order to provide for the health, s ety and weil-being of its citizens, as well as to insure the structural integrity of ats streets and the use f the ublic rights-of-way, the city strives to keep its rights-of-way in a state of good repair and free f m unnecessary encumbrances. Although the general population beazs the fanancial burden for the u eep of the rights-of-way, a primary cause for the early and excessive deterioration of its rights-of ay is their frequent excavation by persons whose equipment is located therein. Right-of-way obstructi n is a source of loss of business to merchants and others whose places of business aze located eazby and a cause of frustration for the general population which must avoid these obstruc6ons or ch ge travel or shopping plans because of them. Persons whose equipment or facilities are is located wi n the right-of-way are the primary cause of these frequent obstructions. The city reco izes that it holds the rights-of-way within its geographical boundaries as an asset in trust for its citize s. The city and other public enUties have invested millions of dollazs in pubiic funds to build and maint n the right-of-way. It also recognizes that some persons, by placing their equipment or facilities n the right-of-way and chazging the citizens of the city for goods and services delivered thereb , are using this property held far the public good. Although such services aze often necessary or , 1 00 • ��r convenient for the citizens, such persons receive revenue and/or profit through their use of public property. The city finds that to protect the public health, safety, and welfare, and to protect the public right-of-way and its current use, it is necessary for the city to detercnine the competence and qualifications of the persons who perform the actual excavation of the right-of-way, installauon of facilities, and restoration of the right-of-way, at the request of, and on behalf those persons who wish to place facilities in the public right-of-way. The lack of competence and qu ification of petsons who work in the right-of-way has caused substantial public inconvenience, sub antial safety risks for the public, and has unduly restricted public use of the right-of-way. In response to the foregoing facts the city hereby enacts new Legislative Code relating to right-of-way permits and admini necessary revisions to other Code provisions and--an-erdinane s 116 and 135 of the St. Paul together with an ordinance making €ranehise: These ordinances impose reasonable regulations o the placement and maintenance of equipment or facilities currenfly within its rights-of-way or o be placed therein at some future time. Under these ordinances, persons disturbing and obstructi g the rights-of-way will beaz a fair share of the financial responsibility for their integrity. Finally, ese ordinances provide for recovery of out-of-pocket and projected costs from persons usin the public rights-of-way. 2 bo•�t.Y � UI��LLaIl9�IGV �Yl.�a�41t�A7RUI��I.Cls��r��t�l��w1� �lU U Ol �S r U lU � lU � � Al�l � l �1 �l � \\�A1�1 \'l�. � 1 � ' • • • � � �� � � � ��� • � � • � • • �� � � • N • � • %11�11R�1�lJ�IGV�SlY �� The findings in the purpose statement in Chapter 135 aze hereby incorporated in this chapter. � Sec. ll6.02. Aefinitions. adopted as part of The following definitions apply in both Chapters I 16 and 135 of the S nt Paul I,egislative Code (hereafter, "Chapters 116 and 135" or "these ordinances"). Referen s hereafter to "sections" aze, unless otherwise specified, references to sections in the Saint Pau gislative Code. Defined terms remain defined terms whether or not capitalized. (42) Applicant means any person requesting to excavate or obstruct a right-of-way. (�3) City means the City of St. Paul, (3� City mana ement cost means actual costs incurred by the city ms�perfarm all of the other tasks required by Chapters 116 � � oo-aLr under Minnesota Statutes, section 15.73, subdivision 3; d) letter of credit, in a form acceptable to the Director: el self-insurance, in a form acceptabie to the Director; and fl a blanket bond for �rojects wittun the City,_or other fornns of construction bond, for a time snecified and in a form acce�tabie to the Director. be required if the excavation or disturbance did not occur. Minnesota Rules 7819.9900 to 7819.9950. which equals the deeradation cost. obstruction, patchine. or restoration as established bv pernut. (� 10) Department means the department of public works � the ciry. (511) Department inspector means any person aut related to the provisions of Chapters 116 and 135. by the director to cany out inspections (612) D'uector means the director of the director's designee. of public works of the city, or her-arhis the (�13) Disruptive cost is the enal im sed as the result of mei�ants-and the adverse impact on ity citizens and others who are required to alter travel routes and times resulting from right-of-way o structions. ($14) Downtown business dist ' t means that portion of the City of Saint Paul lying within and bounded by the following streets: Beg' ning at the intersection of Shepard Road with Chestnut Street, Chestnut Street to Interstate Freewa SE, Interstate Freeway 35E to Interstate Freeway 94, Tnterstate Freeway 94 to Lafayette ridge, Lafayette Bridge to where the bridge crosses over W arner Road, Warner Road to Shep d Road, Shepazd Road to Chestnut Street. (H15) Emergency eans a condition that (a) poses a clear and immediate danger to life or health, or of a significant los of property; or (b) requires immediate repair or replacement in order to restore service to a customer � cc-a�Y (19G� Equipment means any tangible asset used to instail, repair, or maintain facilities in an� hg t-of- wav or which obstructs any rieht-of-wak -- , a. : . . (1�7) Excavate or Excavation means to dig into or in any way remove or physically dist,�irb or penetrate any part of a right-of-way. � (1�8) Excavation permit means the permit which, pursuant to Chapters 116 and 13fi, must be obtained before a person may excavate a right-of-way. An Excavation emut allows the h�ider to excavate that part of the right-of-wav described in such pernut. (13� Excavation pernut fee means money paid to the ciry by an applicant t cover the costs as provided in seetian Chapter 135.9fr. y�14iJ�Yr\• (i521) Local representative means the person or persons or designee of such person or persons, authorized by a registrant to accept service and to mak decisions for that registrant regarding all matters within the scope of Chapters 116 and 135. 22 Minnesota Rules means Minnesota Rules ublished b the Revisor of Statutes as the exis on June 1 1999 whether or not the are curr tl in force. (�6� Obstruct means to place any tang' le object in a right-of-way so as to hinder free and open passage over that or any part of the rig -of-way. (i�� Obstruction permit mean�e pernut which, pursuant to Chaptexs 116 and 135, must be obtained before a person may o truct a right-of-way. (i$�5) Obstruction pernut as provided in seetiert � � means money paid to the city by a regish� ermitee to cover the costs 5 00 -a�.Y (27) Pavement means anv type of improved surface that is within the public ri�ht-of-wav and that is paved or otherwise constructed with bituminous concrete, aggre at� e_or gravel. (�9� Permittee means any person to whom a pernut to excavate or obstruct a b anted by the city under Chapter ll 6 or 135. {�,829) Person means lmm�•�•.intn���r•wlu�:inn w�ii�tr.�u.ai:umnunn�au:r.n.ii.nr:uv��avuaUO�.�r Bl a social or charitable organization; and has been (�Y� Probation means the status of a person that has t complied with the conditions of Chapters 116 and 135. (z''�31) ProbaUonary period means one (1) yeaz f m the date that a person has been notified in writing that they have been put on probation. (z�332) Registrant means any person who ) has or seeks to have its equipment or facilities located in any right-of-way, or (2) in any way occ ies or uses, or seeks to occupy or use, the right-of-way or any equipment or facilities located in e right-of-way. (�33) Registration fee means mqfiey paid to the city bq-a-registra�rt to cover costs associated with reeistration. ` (36� Restore or estoration means the process by which an excavated erebshneted right-of-way and sunoundin ea, includingpavement and foundation. is returned to a-ee�ditien-wltiek spassibie the same condition that existed before the excavation. (z�35) R%�toration €ee cost means an amount of money paid to the city by a pernuttee to cover the cost � oo-a�P' of restoration. �Q�)�\�lJ�II�A���P�/lN���l�U�11HJ��b1�1�l�Jr��L�Ip1UI�Pl�Nl�l��PI �51�•������1�1�1��'L�IwT���1�� ��t�lU�pl�l AL IA �� � l�l � G � t �� ���%� \'I IR�1 � N1 l� (�936) Right-of-way or Public Right-of-way means the :� :� service. (3937) Right-of-way pernut means either the excavation rmit or the obstruction pernut, or both, depending on the context, required by Chapters 116 an 35. (3�i� Service or utility service incl Minn. Stat. § 216B.02, subds. 4 and svstem as defined prev 39A:$3-{�99�j 238; and those services provided by a public utility as defined in �; ( , , - > services of a telecommunications right-of-way ;(iii) i�e services of a cable communications in Minn. Stat. § ����.�.,.f�.A..� 1 U IRd�I �� IR�A7 �l lU•I N 1�.1�1•l l� 1 wL � Pl l (3�40} Suppleme tary application means an application made to excavate or obstruct more of the right-of-way allowed in, or to extend, an obstruction or excavation pernut that had already been issued. 7 oo-a� vu � � � n�� o�.� una � s.xn va.�� �.� � n w n+� wiu r. oii� an � w � u o n aw � r. win ao �� wt.� ab � m.i.i: u u �i u �n n w uii��iiinisn�:�nw�ii�iunru�R:iur.�n[nui��linn�nbu.�ti Sea 116.03. Administration. The director of the department of public works shall be the principal ttt cfty official responsible for the administration of the rights-of-way, right-of-way permits, and th � inances related thereto. The director may delegate any or all of the duties hereunder. Sec. 116.04. Utility coordination committee. There is hereby created a utility coordinaUon committe . This committee shall be voluntary and advisory to the director. It s� mav be composed of any regi rants that wish to assist the city in obtaining information and by making reco endations regazding ways to take greater responsibility for the right-of-way, and to impro e the process of performing construction work therein. by the director to any registrant making a Sec. 116.05. Registration and ri Notice of the meetings of such committee shall be given n request to the director to be so notified. occupancy. Each person who occupies, uses, o seeks to occupy or use, the right-of-way or any equipment or facilities located in the right-of- ay, or who has, or seeks to have, equipment or facilities located in any right-of-way shall register wit he department. Registration will consist of providing application information te as require by the director, , 0 oo-a�� . : . :, .. . :, . . .:. . . . . No person may construct, install, repair, remove, relocate, or perform any other work on, or equipment or facilitv or any part thereof located in any right-of-way without fust being regi the department. � .�.,, .............. .�, .....� , ......., Nothing herein or in Chapter 135 shall be construed to repeal or amend the ordinance pemutting persons to plant or maintain boulevard plantings or gz right-of-way between their property and the street curb. Persons planting o plantings or gardens shall not be deemed to use or occupy the right-of-w , to obtain any pernuts or satisfy any other requirements for planting or ain plantings or gazdens under this chapter or Chapter 135. Sec. 116.06. , . Reserved. Il�1�P�LL'�l��bl��IAfU�r 5` Sec. 116.07 The information. with pr isions of a ciry r ens or in the azea of maintaining boulevard and shall not be required aininQ such boulevard provided to the department at the time of registration shall include, but not be limited to: G] 00 - a c.�- 1 {1} Each registrant's name, Gopher State One-Call registration certificate number, address and e- 2 address if applicable, and telephone and facsimile numbers. 3 4 (2) The name, address and e-mail address, if applicabie, and telephone and facsimile numb rs of a lceal 5 representative. The local representative shall be available at all times. Current informatio, regarding 6 7 8 9 10 11 12 how to contact the local representative in an emergency shall be provided at the ume of (3) A certificate of insurance or self-insurance: a. Verifying that an insurance policy has been issued to the registrant by an to do business in the State of Minnesota, or a form of self insurance accent; 13 b. Verifying that the registrant is insured against claims for personal injury, 14 claims for property damage arising out of the (i) use and occupancy of the 15 registrant, its officers, agents, employees and pernuttees; and (ii) placem 1 16 equipment in the right-of-way by the registrant, its officers, agents, e oy� 17 but not limited to, protection against liability arising from complet opera� 18 equipment and collapse of property; 19 company licensed death, as well as ght-of-way by the and use of facilities and es and pernuttees, including, ons, damage of underground 20 c. Naming the city as an additional insured as to whom the cc�erages required herein are in force and 21 applicable and for whom defense will be provided as to all uch coverages; 22 23 d. Requiring that the director be notified thirty (30) d s in advance of cancellation of the policy;� or 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 material modification of a coverage term; e. Indicating comprehensive liability and umbrella coverage in amounts es management in amounts sufficient to Chapters 116 and 135. e, utomobile liability coverage, workers compensation, by the director of the office of risk and employee benefit the city and carry out the purposes and policies of (4) Tf the person is a corporation, a c y of the certificate required to be filed under Minn. Stat. § 300.06 as recorded and certified to y the secretary of state. (5) A copy of the person's orde antin a certificate of authority from the Minnesota Public UUlities Commission, where the pers is lawfully required to have such certificate from said commission or The regisuant �lfall keep all of the information listed above current at all times by providing to the 10 oo-a�r department information of changes within fifteen (15) days following the date on which the registrant knowledge of any change. � Sec. 116.08. Reporting obligations. (a) 6perati�nr Each registrant shall, at the time of registration and by December 1 of construction and major maintenance plan with the department. Such plan shall be sub format designated by the director and shall contain the information deternuned by the necessary to facilitate the coordination and reduction in the frequency of excavations; of rights-of-way. � The plan shall include, but not be limited to, the following information: � eaz, file a d using a xtor to be obstructions (1) The speeifi�locations and the estimated beginning and ending dates of projects to be commenced during the next calendar yeaz (in tlus section, a"next-yeaz pro� t"); and (2) To the extent known, the tentative locations and estimated projects contemplated for the froe-(Sj four yeazs following the "five-year project"). The term "project" in this section shall include both and ending dates for all dar yeaz (in this section, a pro}ects and five-year projects. By 3anuary 1 of each year, the department will have av lable for inspection in its offices a composite list of all projects of which it has been informed in t annual plans. All registrants are responsible for keeping themselves apprised of the current status this list. Thereafter, by February 1, each registrant ma change any project in its list of next-year projects, and must notify the director and all other regis ts of all such changes in said list. Notwithstanding the foregoing, a registrant may at any time j'n in a next-year project of another registrant that was listed by the other registrant. Notwithstanding the foregoing, the director may, for good cause 11 oo-a�� shown, allow a registrant to submit additional next-yeaz projects. Good cause includes, but is not limited to, the criteria set forth in section 135.1�2(c) concerning the discretionary issuance of pe � ts. Sec. 116.09. Mapping data. :� . . . • : : � : ..� . : � . . :� :�.. :. �2.i• � nu ��a.ir.n �a.i au�n i:f �iu� u n r.ui.»iv� �n.�� ivuauo•: r.riab r" n ��. u�w ui:i n�•: m��u�au•. �� n1b �i�i.i�s iuiw�� �. :w -� �� :� i �- i' - i :� - i :�• - :�• - - r:i :� •' • �• i V Al�.i���•���l�l�ln�i��ll�tlnll Within six (6) months after the acquisition, installation, or construction of or any relocation, abandonment, or disuse of existing ecgripmenf facilities, supplement the mapping $ata information required herein. � permit application which contains the followina informafion: The twe and size of the utilitv facilities. man• subdivision 3. ional ecluipmer� facilities registrant shall 12 .. permits to this registrant until such fee is paid. available. At the reguest of any registrant, any information requested by the depa� "trade-secret" under Chapter 94 of the St. Paul Administrative Code or treated as trade secret information as detailed therein. i ��.�:,:...�.�..���:s��,.«:�.��.� �. Sea 116.10. Location of (a) Undergrounding. �3rc�es construction and the instal] contained within buildings of-wa . which qualifies as a Stat. § 1337@) shall be - ,New of new eqcri�nnent facilities shall be daae located underground or aer structures in confomuty with � applicable codes except that the 13 2 CI 0 8 9 10 11 12 13 14 junction boxes, spiice boxes. and anv other necessary approvals. cannot reasonably be placed under2round. 15 (b) Earridars L.ocations. The director shall assign specific 16 or any particular segment thereof as may be necessary, for 17 pursuant to cunent technology, the director expects will sc 18 All excavation, obstruction, or other pernuts issued by th 19 zeplacement of eqnipmen4 facilities shall designate the c 20 faciiitv. 21 22 Any registrant whose equipme�is facilit 23 the eoxriders locations established by the 24 reconstruction or excavation of the area � 25 ec�igment facilitv to its assigned positio� 26 the director for good cause shown, upo� 27 the facilities, public safety, customer �n 28 � �locations witlun the right-of-way, h/type of ec�ripment facilit that is or, day be located within the right-of-way. �artment involving the installation or eerricler location for the �meirt e� cated in the right-of-way in a position at variance with �or shall, no later than at the time of the next its aqnipmentis facilities are located, move that in the right-of-way, unless this requirement is waived by of such factors as the remaining economic life of needs and hardship to the registrant. 29 (c) Nuisance. One (1) yeaz after D cember 11, 1996, any equipment or facilities found in a 30 right-of-way that has not been r istered shall be deemed to be a nuisance. The city may exercise any 31 remedies or rights it has at la or in equity, including, but not limited to, abating the nuisance pursuant to 32 section 45.11 of the Legisla ve Code or taking possession of the equipment or facilities and restoring 33 the right-of-way to a use e condition. 34 35 36 37 38 39 40 41 (d) Limitation of spa . The director shall have the power to prohibit or limit the placement of new or additional facilities within the right-of-way if there is insufficient space to accommodate all of the requests of r istrants or persons to occupy and use the right-of-way. In making such decisions, the director shall 've to the extent possible to accommodate all existing and potential users of the right-of-wa , but shall be guided primarily by considerations of the public interest, the public's needs for the parti az utility service, Che condition of the right-of-way, the time of yeaz with respect to essenfial utiliti , the protection of existing e�rer� facilities in the right-of-way, and futwe city plans for public 14 �o -a improvements and development projects wtuch have been determined to be in the public Sec. ll611. Relocation of e�i�nent existin�facilities. When working in the rights-of-way, permittees shall not interfere with the safety and ordinary travel along and over the rights-of-way nor interfere with other uses to whic may be put by the City of St. Paul. � �e�persasmt�sf. A right-of-wa�user shall prompfly and at its own expense, seasonal working conditions, permanently remove and relocate its equipmen right-of-way ' , when it is necessarv to prevent interference enience of rights-of-way regard for lities in the and not safety and convenience of ard'nrxry travel over the right-of-way. Notwithstanding the foregoing, a person shall not from any right-of-way which has been vacated in reasonable costs thereof aze first paid to the perso Sea ll6.12. Preexcavation eqnigmerrt Po remove or relocate its eq�ipment facilities of a nongovernmental entity unless and untii the In addition to compiying with the require�tfents of Minn. Stat. §§ 216D.01-.09 ('bne call excavation notice system") before the start date of y right-of-way excavation, each registrant who has equipmerce facilities located in the area to be exca ated shall mark the horizontal and approximate vertical placement of a11 said ecrnipmea�faci Ues . Any registr�nf �ht-of-wa} concrete or asphalt surface establish the exact location �hose ec�nipnrent facili is less than twenty (20) inches below a notify and work closely with the excavation contractor in an effort to , equipmerrt facili and the best procedure for excavation. Sec. 116.13. Damage to er r.e�i�nnent facilities. When the departmen performs wark in the right-of-way an-xp�pr�eeE and finds it necessary to maintain, support, r move a �erson's facilitv in order to protect it, the costs associated there rth will be billed to that registrxr� ep rson and must be paid within thirty (30) days from the date of bil ' e. 15 Oo—ac.d' 1 Each registram ep rson shall be responsible for the cost of repairing any equipment or facilities in 2 right-of-way which it or its equipment damages. Each registr�rit erson shall be responsible for t} 3 of repauing any damage to the equipment or facilities of another registsant ep rson caused dunn 4 city's response to an emergency cecasioned by that ' erson's equipment or facilitie� C'7 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Sec. 116.14. Right-of-way vacation. If the city vacates a right-of-way which contains the ee�vipatent facilities of a� and if the ri�ht-of-way vacation does not require the reiocation of � way user's et�nipme� facilities, the ciry shall, exce�t when it would not be in ., to and for itself and all registrants ri�ht-of-way us facilities in ihe vacated right-of-way, the right to install, maintain and operate the vacated right-of-way and to enter upon stzeh the right-of-way at any time � reconstructing, inspectirig, maintaini� or repairnrg the facilities same. � � the ri hg t-of- interest reserve �� aent in rese-ef to the vacation requires the relocation of the ri ht- -wa user's facilities a ment o the relocation costs must be determined as follows:; �nd (a) if the v cation proceedings are initiated by the right of wav user the ' ee right of way user must pay the relocation costs; or (b) if the vacation proceedings are initiated y the city for a public proiect, the ri�ht of way user must pay the reloca �on costs unless otherwise agreed to by the city and the right of way user; or (c if the vacation proceedings aze initiated bp for the �nr�ose of benefitine a person arpersons other an the right of way user, °-- - sac�r oincr the benefited person er perseirs mus ay the relocation costs. Sec. 116.15. Indemnification and laability. 28 By reason of the acceptance of a registratio or the grant of a right-of-way pernut, khe ciry dces not 29 assume any liability (a) for injuries to per ns, damage to property, or loss of service claims by parties 30 other than the registrant or the ciry, or for claims or penalties of any sort resulting from the 31 installation, presence, maintenance, o operation of equipment or facilities by registrants or activides of 32 registrants. 33 34 , By accepting a permit under Chapters 116 35 and 135 a r�istrant is required, to defend, indemnify, and hold the city whole and harcnless 36 from all 37 which tt 38 emolove 39 facilirie! 40 wronefu �� oa-� `8' 1 2 3 4 5 C� 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 compliance with a term, condition, or purpose of the pernut eranted to the re �s� trant• IfThe re �sgi trant further agrees that it wiil not bring, nor cause to be brought, any ac�%�on, suit or other proceeding claiming damages, or seeking any other relief against the ciry for any aim nor for any award arising out of the presence, installation, maintenance or operation of its e ipment or facilities, or any activity undertaken in or neaz a right-of-way, whether or not the act or o' sion complained of is authorized, allowed or protribited by a right-of-way permit. The foregoing does not indemnify the city for its own negligence excep for losses or claims occasioned 21 This seclion is not, as to third parties, a waiver of 22 registrant, or to the city; and the registrant, in def 23 to assert in any action every defense or immun' 24 25 Sec. 116.16. Future uses. 26 27 In placing any equipment or f� 28 liable for any damages caused 29 place. No registra�t eq rson is i 30 duty is created as to any 31 health, welfare and safety tt 32 33 Sec. 116.17. 34 35 A registrant 3b Discontinued operations. determined to discontinue all or a�ortion of its operations in the city must eitiierr defense or immunity otherwise available to the ding any action on behalf of the city, shall be entitled that the city could assert in its own behalf. lih s, or ailowing it to be placed, in the right-of-way, the city is not eby to any registrant's � facilities which is are already in itled to rely on the provisions of Chapter ll6 or 135, and no special �t e�rson. Chapters ll 6 and 135 aze enacted to protect the general public at lazge. 17 oo- a 6�' f}�Pprovide information satisfactory to the director that the registranYs obligations for its eq facilities in the right-of-way under this chapter and Chapter 135 have been lawfuily assumed regisuant; or the ci . Sec. 116.18 . Abandoned faciliries. required by law, unless this requirement is waived by the director. . . . : � .. . ��ini.nr.rii.i�ua.iGU�wnniuRab Sec. 116.1$9. ReserJSation of regulatory and police powers. The city by th granting of a right-of-way pernut, or by registering a person under sections 116.05 through ll 7, does not surrender or to any extent lose, waive, impair, or lessen the lawfui powers m 00 -a�P' 0 and rights, which it has now or may be hereafter vested in the city under the Consutution and statutes f the State of Minnesota and under the Charter of the City of Saint Paul to regulate the use of the right-of-way by the permittee; and the pemuttee by its acceptance of a right-of-way permit or o registration under sections ll6.05 through 116.07 must agree that all lawful powers and righ , regulatory power, or golice power, or otherwise as are or the same may be from time to ti vested in or reserved to the city, shall be in full force and effect and subject to the exercise thereo y the city at 7 any time. A permittee or registrant is deemed to acknowledge that its rights are subject to the regulatory 8 and police powers of the city to adopt and enforce general ordinances necessary to tt�e� safety and 9 welfare of the public and is deemed to agree to comply with atl applicable general aws and ordinances 10 enacted by the ciry pursuant to such powers. 11 12 13 14 15 16 17 Any conflact between the provisions of a registration or of a right-of-way or future lawful exercise of the city's regulatory or police powers shall b�e and any other present d in favor of the latter. 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Sec. ll6.�920. Severability. If any secUon, subsection, sentence, clause, phrase, or rtion of this chapter or Chapter 135 is for any reason held invalid or unconstitutional by any court administrative agency of competent jurisdiction, such portion shall be deemed a separate, distinct, d independent provision and such holding shall not affect the validity of the remaining portions th eof. If a regulatory body or a court of competent jurisdiction should deternune by a final, non pealabie order that any permit, right or registration issued under Chapters 116 and 135 or any portio of these chapters is illegal or unenforceable, then any such pezmit, right or registration granted or emed to exist hereunder shall be considered as a revocable permit with a mutual right in either p y to ternunate without cause upon giving sixty (60) days written notice to the other. The requiremen and conditions of such a revocable pernut shall be the same requirements and conditions as s forth in the permit, right or registration, respectively, except for conditions relating to the term f the pernut and the right of termination. If a pertnit, right or registration shall be considered a revocable permit as provided herein, the pernvttee must acknowledge the authority of the city counciXto issue such revocable permit and the power to revoke it. Sec. 116.281. Boazd f water comirxissioners; city. Notwithstan�g anything to the contrary in this Chapter 116 or in Chapter 135 of the I,egisiative Code, the boazd of ater commissioners established pursuant to 1885 Minn. Laws, Ch. 110, may, at its discretio satisfy requirements for the posting of a bond by written undertaking which obiigates said boazd a surery with respect to such requirements. The said board may also, at its discretion, satisfy 19 oo-aca' i requirements for obtaining and maintaining insurance by written undertaking obligating said boar to the 2 city as required in said chapters, provided, however, that such undertaking need not waive liab� ty limits 3 or defenses available to it as a body corporate and politic organized and e�sting under the 1 s of 4 Minnesota. The city is excepted from the insurance and bonding requirements of these ch ters. 5 6 7 8 9 10 11 12 section 2. Legislative Code Chapter 135, is hereby amended to read: Chapter 135. Right-of-Way Pemrits Sec. 135.01. Purpose. 13 In order to provide for the health, safety and well-being of its p 14 rights-of-way, as well as to ensure the siructural integrity of its 15 minimize the number of obstructions and excavations taking pi 16 k�ace as it uses the u� blic �ts-of-way, the ciry desires to thereon. 17 The purpose of this chapter is to regulate obstructions and excavations in the rights-of-way by 18 providing, among other things, for the issuance of p �ts granting authority to obstruct or excavate 19 therein and by providing for the subsequent restor tion of the rights-of-way. 20 21 The findings and purpose statement in Cha er 116 is hereby incorporated in and adopted as part of 22 this chapter. 23 24 Sec. 135.02. Definitions. 25 26 The definitions found in secti 116.02 of the St. Paul I.egislative Code (hereinafter, "Legislative 27 Code") apply to ttiis chapter 28 29 30 31 32 33 34 Sec. 135.03. Permit Except as othe ise provided in the L.egislative Code, no person may obstruct or excavate any right-of-way ithout first having obtained � the appropriate right-of-way permit fro the department to do so. 20 6o-?�a' i (1) Excavation permit. An excavation permit is re uired to excavate 2 that part of the right-of-way described in such permit and to hinder free and open passage over the 3 specified portion of the right-of-way by placing equipment described therein, to the extent and i the 4 duration specified therein. 5 6 (2) Obstruction pemut. An obstruction permit is � ' r uifed to hinder 7 free and open passage over the specified portion of right-of-way by placing equipme described 8 therein on the right-of-way for the duration specified therein. 0 10 No person may excavate or obstruct the right-of-way beyond the date or dates 11 unless � such person {ij makes a supplementary application for another rig� 12 expiration of the initial pemut, and (ii) a new pernut or pernut extension is 13 14 15 16 17 18 19 20 21 22 d in the permit pemut before the Pemuts issued under this chapter shali be conspicuously displayed at 1 times at the indicated work site and shall be available for inspection by department inspectors and thorized city personnel. Sec. 135.04. Pernut applications. Application for a permit is made to the director. 23 Right-of-way permit applications shall con �n, and will be considered complete only upon compliance 24 with, the requirements of the following p ovisions: 25 26 (1) Registration with the departrne pursuant to Chapter 116. 27 28 (2) Submission of a complete pernvt application form, including all required attachments, and scaled 29 drawings showing the locati n and azea of the proposed project and the location of all existing and 30 proposed ec�i�mtenf facil' es. 31 32 33 34 (3) Payment of all a. Prior due to the ciry for: or excavations; 21 00 .acr 2 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 � �'.' � b. Any loss, damage, or expense suffered by the city as a result of applicant's prior excavations or obstructions of the rights-of-way or any emergency actions taken by the city; c. �3ser�ees; ar� Perinit fees and costs: d. Any franchise fees in atrears, due, owing and unpaid. � ,.�....��.� . .. . .:. : . .. .. . .. .. .� � . •:. � . � . • .. � . ::: :. . . Sec. 135.05. Issuance of permit; conditions. ff the director determines that the applicant has satisfied the requirements the posting Chapters 116 and 135, the director may issue a pemut. Such pernuts may, in the discretion of the ector, be issued as "various location" permits, with or without conditions as provided in this secti . The director may impose reasonable condilions upon the issu Ee of the permit and the performance of the applicant thereunder in order to protect the public healt safety and welfare, to insure the structural integrity of the right-of-way, to protect the property and s�fety of other users of the right-of-way, and to minimize the disruption and inconvenience to the tra�eling publia Without limiting the foregoing, the i{e, to insure the structural integriry of the director,to protectthe public health, safety and w right-of-way, to protect the property and safety of dismption and inconvenience to the traveling pu� . reasonable assurance that utilities and/ar their �Lon and qualified. These pernut conditions laws, including one-call, construction ; er usezs of the right-of-way, and to minimize the shall develop pernut conditions that provide :tors working in the right-of-way az'e competent but not be limited to, instruction in state and local safety, and construction standards, including restoration standards. Sea 135.06. Permit fees. 31 (a) Excavation permit fee. e excavation permit fee shall be in 32 an amount sufficient to r over the following costs if applicable: 33 34 (1) The city mana ment cost� � 35 22 �0-�8' 1 � The dismptive cost; 2 /" . � � 1 • �. . • i - - :� • ��:� r:� � - i° : � � -:� � � � � : � / � : _ _ , � , 6 (3� The degradauon cost_ 7 �l�J 11 12 13 14 15 16 17 : : air.uun���r.u�riunosuca�.i: . . � i - � . : : : � - - . (b) Obstruction permit fee. The obstruction pernvt fee shall be estal in an amount sufficient to recover the following costs if appllcable: (1) The city mana ement cost, � � The disruptive cost; and 18 (�3) The 19 20 (c) Payment of pertnit fees. No excavation permit 21 of snek excavation or obshuction pernut fees. bef 22 director may a11ow applicant skai}agree to pay � 23 � sqstexn• permit shall be issued without payment The fees within thirty (30) days of billing Hrerefer. 24 (d) Computation of disruptive cost. 'I'he d� ector shall determine the disruptive cost component of the 25 fees for excavation and obstruction, and n doing so shall have the purpose of providing a financial 26 incentive to permittees to minimize t ir obstruction and use of the right-of-way and to get in and get 27 out of the right-of-way as quickly a ossibie. In aid of that purpose, the director shall use in the 28 computation of the disruptive cos to the extent practicable, economic and accounting principles 29 relating to the quantification of e social costs resulting from street obstructions, including (1) losses to 30 31 32 33 34 35 36 businesses and merchants wh� would not have occurred but for the obstructions, and (2) social costs to the users of the right-of- y resulting from traffic delays, diversions, disrupUon in services, missed or delayed appointments, an decline in quality of life. Fees may vary from one (1) location to another based on the size of the ea to be obstructed; the duration that the right-of-way or parts of it wili be unavailable for publi use and travel; the proximity of businesses and enterprises which rely in whole or in part on access b members of the public or the delivery of supplies or raw materials; the importance of the particular ght-of-way as to the traveling public; the use of the particular right-of-way for 23 Do-ic� 1 emergency vehicles and the availabiliry of alternate routes; the traffic volumes carried by the particular 2 right-of-way; and the amount of vehiculaz, bicycle, and pedestrian tr�c that is reasonably likely to be 3 disrupted thereby. 4 5 (e) Use of pemut fees. All obstruction and excavation pemut fees shall be used solely for city 6 management, construction, maintenance and repair costs of the right-of-way. � 7 8 ( fl�nsitiea permit fees. permit fees for street usage, excavation and 9 obstruction � , pursuant to chapters 116 and 135, shall be proposed 10 b the director and estabiished from time to ume b '�_„ �___ ___ �_rr_ _. ___.., -v _ ci council; �' X "_-.'— - -- ty 11 bp resolurion, . 12 13 (g) All permit fees shall be doubled during a probationary period. 14 15 Sea 135.07. Dela P� enalty. ' 16 17 In accordance with Minnesota Rule 7819.1000 subp. 3, the Director shail impose a delav penaltv for l8 unreasonable dela sy in rieht-of-wav excavation. obstruction,�atchine, or restoration by pertnitee. The 19 delay�enaltv shall be pronosed b�the Director and established from time to time b,�l city council 20 resolution. 21 22 Sec. 135.0�8. Right-of-way patching and restoration. 23 24 The work to be done under the pernut, and the �atchin�and restoration of the right-of-way as required 25 herein, must be completed within the dates specified in the pemut, increased by as many days as work 26 could not be done because of circumsYances constituting force majeure or when work was prohibited 27 as unseasonal or unreasonable under this chapter. seetieir�35� In addition to patching its own work, 28 the permittee must restore the general area of the work, and the surrounding areas, inciuding the paving 29 and its foundations, to the same condition that existed before the commencement of the work�nd�st 30 - 31 nn��1 hs-ttterea€ter. 32 � 33 In its application for an excavation permit, the pernuttee may choose either to have the ciry restore the 34 right-of-way or to restore the right-of-way itself. f 35 j 24 ao -ac� 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 (1) City restoration. If the city restores the right-of-way, i� permittee shall pay the costs thereof within thirry (30) days of billing. If, - fo7 such restoration, the patek �avement settles due to permittee's improper backfilling, the pemuttee s pay to the city, within thirty (30) days of billing, . all costs assoc' e� with correcting the defective work. (2) Pernuttee restoration. If the pernuttee �n restores the right-of-way itself, of application of an excavation permit- � Post a performance bond_ 1�4�1�U1/��!'J�R�1lERU�P]���PI�IU�� I�I��UI� ��1�]�1�1�1U�I1�1��YGJ�\ . : . . . . . The pernuttee shall perform the-�erk excavation standards and with the materials specified by the prescribe the manner and extent of the restoratio� application or on a case-by-case basis. The dir Minnesota Rules 7819.1100. SaUOliaut�u.f V.�ri1�lr�a�lurlA�l1 33 Methods of restoration 34 base, and milling and p� 35 36 37 at the time ac fillin atchin and restoration according to the ctor. The director shali have the authority to md may do so in written procedures of general in exercising this authority sha11 be guided by include, but aze not limited to, patching, replacement of the right-of-way � of the entire area of the right-of-way affected by the work. The pertnittee 25 oo-a�� 1 shall conect defects in patchin�, or restoration performed by pemuttee or its a¢ents. Permittee, upon 2 notification from the department, shall conect all restoration work to the extent necessary, using the 3 method requued by the department. Said work shall be completed within five (5) working days of th 4 receipt of the nouce from the department, not includang days during which work cannot be done 5 because of circumstances consututing force majeure or days when work is prohibited as unse nal or 6 unreasonable under seetian-�3�1$ Chapters 116 and 135. 8 If the pernuttee fails to restore the right-of-way in the manner and to the condition req red by the 9 department, or fails to satisfactorily and timely compiete all repairs restorations requ ed by the 10 department, the department at its opUon may do such work. In that event the permi ee shall pay to the 11 city, within thirty (30) days of billing, the cost of restoring the right-of-way. 12 13 14 15 16 17 18 19 20 21 include the cost to accom�lish these xesponsibilities. Sec. 135.0$4. Joint applications. Registrants may joinfly make application for pernuts to el[cavate or obstruct the right-of-way at the same place and time. � 22 Registrants who join in and during a scheduled o struction or excavation performed by the department, 23 whether or not it is a joint application by two ( or more registrants or a single application, aze not 24 required to pay the obstruction and degradat n portions of the pernut fee. 25 26 Registrants who apply for pernuts for t e same obstruction or excavation, which is not performed by 27 the department, may share in the pa ent of the obstruction or excavation pernut fee. Registrants must 28 agtee among themselves as to the rtion each will pay and indicate the same on their applications. 29 30 Sec. 135.9910. Supplement applications. 31 32 A right-of-way pemut ' valid only for the area of the right-of-way specified in the permit. No permittee 33 may perform any w outside the area specified in the pernut, except as provided herein. Any 34 pemuttee which temunes that an area greater than that specified in the pemut must be obstructed or 35 excavated mus , before working in that gteater azea: (i) make application for a pemut extension and pay 36 any additio fees necessitated thereby, and (ii) be granted a new pernut or pertnit extension. 26 DO-}GP' 1 A right-of-way permit is valid only for the dates specified in the permit. No permittee may begin its 2 work before the pernrit start date or, except as provided herein, conunue working after the end date. ff 3 a permittee dces not finish the work by the pemut end date, it must make application for a new permit 4 for the additional time it needs, and receive the new permit or an extension of the old permit 5 working after the end date of the previous pemut. This supplementary application must be d 6 a�proved before the pemut end date. / 9 Sec. 135.181. Other obligations. 10 11 Obtaining a right-of-way pernrit dces not relieve permittee of its duty to 12 pemuts, licenses, and authority and to pay all fees required by any other 13 , , rules, laws or regulations. / 14 J �fi all other necessary or other applicable ; 15 A pernuttee shall compiy with all requirements of local, state an�federal laws, includang Minn. Stat. §§ 16 216D.01-.09 ("one call excavatian notice system"). 17 18 A permittee shall perform all work in conformance with 1 applicable codes and established rules and 19 regulations, and is responsible for all work done in th �ght-of-way pursuant to its pernut, regardiess of 20 who performs the work. 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Except in the case of an emergency, and with or excavation may be performed when seasoy such work. � A pernuttee shall not so obstruct a approval of the director, no right-of-way obstruction prohibited or when conditions are unreasonable for that the natural free and cleaz passage of water through the gutters or other waterways shall e interfered with. Private vehicles may not be p ed within or adjacent to a pernut azea. The loading or unloading of trucks adjacent to a pemut ea is prohibited unless specificaily authorized by the permit. Sec. 135.142. Denial (a) Mandatory permit. Except in the case of an emergency, no right-of-way permit will be granted: 27 oo-a�� (1) To any person required by-seetiarri�fr.95 to be registered who has not done so; (2) To any person required b}�seetsoa-�fr.8$ to file an annual report but has failed to do so; 5 (3) For any next-year project not listed in the construction and major maintenance plan r uired under 6 seefio� cha�ter 116:9g ("reportine obligations"l; 7 8 (4) For any project which requires the excavation of any portion of a right-of-w which was 9 constructed or reconstructed within the preceding five (5) years; 10 11 (5) To any person who has failed within the past three (3) yeazs to comg , or is presently not in full 12 compliance, with the requirements of Chapters ll6 and 135; 13 14 (6) To any person as to whom there exists grounds for the 15 135.� 16 17 18 19 20 21 22 (b) Pernussive denial. The director may 23 welfare, to prevent interference with the 24 right-of-way, would cause a conflict or � 25 event.or when necessaryto protectth x of a pernut under seefien chanter a pernut in order to protect the public health, safety and y and convenience of ordinary travel over the and its users. The director, in her or his discretion, 26 may consider one (1) of more of the ollowing factors: the extent to which right-of-way space where the 27 permit is sought is available; the c peting demands for the particular space in the right-of-way; the 28 availability of other locations in e right-of-way or in other rights-of-way for the e�ni�rnent facilities of 29 the permit applicant; the appli ility of ordinance or other regulations of the right-of-way that affect 30 location of ecnripment facilit s in the right-of-way; the degree of compliance of the applicant with the 31 terms and conditions of its anchise, Chapters 116 and 135, and other applicable ordinances and 32 regulations; the degree o isruption to surrounding communities and businesses that will result from the 33 use of that part of the ' ht-of-way; the condition and age of the right-of-way, and whether and when it 34 is scheduled for total r partial reconstruction; and the balancing of the costs of disruption to the public 35 and damage to the �ght-of-way, against the benefits to that part of the public served by the expansion 36 into additional p s of the right-of-way. � Do -��P' 1 2 3 4 5 6 � (c) Discretionary issuance. Notwithstanding the provisions of sections 135.1�2(a)(3) and 135.1�2(a)(4), the director may issue a permit in any case where the permit is necessary (a) to prevent substantial economic hazdship to a customer of the pennit applicant; or (b) to allow such customer to materially improve its utility service; or (c) to allow a new economic development project; and where the permit applicant did not have knowledge of the hardship, the plans for improvement of se ice, or the development project when said applicant was required to subznit its list of next-year pr ects. 8 (d) Pernuts for additional next-year projects. Notwithstanding the provisions of this a ter seetian 9 �35�, the director may issue a perznit to a registrant who was allowe under seetierr 10 cha�er ll6�${ej to submit an additional Next-yeaz project, such permit to be su ect to all other 11 conditions and requirements of law, including such conditions as may be impos d under seeYian ch� 12 135$5. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Sea (13) A�peal establishing the reasonableness of the decision. Sec. 135.1�4. Installation requirements. The excavation, backfilling, patching, be done in conformance with "The St� code. Sec. 135.135. Inspection. When the work under any Part 7819.1300 shall rcati director , and all other work performed in the right-of-way shall ifications for Street Openings" as promulgated by the and at a location as required by seetian this heteunder is completed, the permittee,as authorized bv Minn. Rules ut a completion certificate to the director at the time the �roject is 29 oo-�cr 2 Permittee shall make the work-site available to the department inspector and to all others as authorized by law for inspection at all reasonable times during the execution and upon compleuon of the work� 4 At the time of inspection the department inspector may order the immediate cessation of an work 5 which poses a serious threat to the life, health, safety or well-being of the public. 6 7 The department inspector may issue an order to the regish��nt pennittee for any wor hich does not 8 conform to the applicable standards, conditions or codes. The order shall state that ailure to correct 9 the violation will be cause for revocation of the pernrit. Within ten (10) days afte issuance of the order, 1Q the regisirnnt pernuttee shall present proof to the director that the violation has een conected. If such 11 proof has not been presented within the required time, the director may revok the pemut�rs�antfie 12 13 14 15 16 17 18 19 20 21 22 : . Sec. 135.1�6. Work done without a permit. (a) Emergency situations. Each registrant shall immediately of any event regarding its ee�ipment facilities which it proceed to take whatever actions are necessary in order business days after the occurrence of the emergency, th permits, pay the fees associated therewith and fulfill t a into compliance with Chapters ll6 and 135 for the cti ythe director orthe director's designee to be an emergency. The registrant may o/respond to the emergency. Within two (2) �registrant shall apply for the necessary rest of the requirements necessary to bring itself it took in response to the emergency. 23 In the event that it becomes aware of an emerg ncy regarding a registrant's equipment or facilities, the 24 department may attempt to contact the local presentative of each registrant affected, or potentially 25 affected, by the emergency. In any event, t department may take whatever action it deems necessary 26 in order to respond to the emergency, the ost of which shall be bome by the registrant whose 27 equipment or facilities occasioned the e ergency. 28 29 (b) Nonemergency situations. Exc t in the case of an emergency, any person who, without first having 30 obtained the necessary pernut, o tructs or excavates a right-of-way must subsequently obtain a 31 pertnit, pay double the normal ee for said percnit, pay double all the other fees required by the 32 I.egislative Code, deposit wi the department the fees necessary to correct any damage to the 33 right-of-way and comply th all of the requirements of Chapters 116 and 135. 34 35 Sec.135.157. 36 notification. 30 00 -a`r 1 2 3 � If the obstruction or excavation of the right-of-way begins later or ends sooner than the date given on the permit, permittee shall notify the department of the accurate information as soon as tivs�rmati is known. 5 If the obstruction of a right-of-way is of a shorter duration than that estimated on the 6 the department wili, upon request, refund or credit to the permittee a proportionate a 7 pemut fee. 8 9 Sec. 135.1fr8. Revocation of pernuts. 10 application, of the 11 Registrants hold pemuts issued pursuant to the I,egislative Code as a priyilege and not as a right. The 12 ciry reserves its right, as provided herein, to revoke any right-of-way imit, without fee refund, in the 13 event of a substantial breach of the terms and conditions of any stat e, ordinance, rule or zegulation, or 14 any condition of the pernut. A substantial breach by pernuttee sh i include, but shail not be limited to, 15 the following: 16 17 18 19 20 21 (1) The violation of any material provision of the (2) An evasion or attempt to evade any material F perpetration or attempt to perpetrate any fraud or pernut; >n of the right-of-way pernut, or the upon the city or its citizens; 22 (3) Any material misrepresentation of fact in�he application for a right-of-way permit; 23 24 25 26 27 (4) The failure to maintain the required (5) The failure to complete the and/or insurance; a timely manner; or 28 (6) The failure to conect a con "tion indicated on an order issued pursuant to this chagter seetien 29 -�35�3; 30 31 (7) Hiring illegal aliens; 32 33 (8) Failing to rep damage to other utilities; 31 oo-�cr 2 3 (9) Failing to report injuries. If the director detemunes that the permittee has committed a substantial breach of a term 4 of any statute, ordinance, rule, regulation or any condition of the permit, the director sh�ake a 5 written demand upon the permittee to remedy such violation. The demand shall state th3 continued 6 violations may be cause for revocation of the permit. Further. a substantial breach_ as srated above_ � 7 aliow the director to �lace additional or revised conditions on the permit. 9 Within twenry-four (24) hours of receiving notification of the breach, pernuttee 10 with a plan, acceptable to the director, for its conection. Pemuttee's failure to / s� 11 or the permittee's failure to submit an acceptable plan, or pernuttee's failure Sb' Jtall contact the director contactthe director, 12 the ap�roved �lan, shall be cause for immediate revocation of the pemut. Further, permittee's failure to 13 so contact the director, or permittee's failure to submit an acceptable pl,an, or permittee's failure to 14 implement the approved plan, shall automatically place the permitte , on probation for one (1) full yeaz. 15 16 From Ume to time, the director may establish a list of conditi s of the pernut which, if breached, will 17 automatically place the permittee on probation for one (1) 1 yeu, such as, but not limited to, working 18 out of the allotted time period, working on right-of-way ossly outside of the pernut, failing to report 19 utility hits, failing to report injuries or hiring illegal ali s. 20 21 If a pernuttee, while on probation, commits a 22 automatically be revoked and permittee will r 23 for emergency repairs. , 24 h as outlined above, permittee's permit will allowed further pernuts for one (1) full yeaz, except 25 If a pernut is revoked, the pernuttee sh also reimburse the city for the city's reasonable costs, 26 including restoration costs and the co s of collection and reasonable attorneys' fees incurred in 27 connection with such revocation. 28 29 30 31 32 33 34 35 7�i Sec. 135.1�9. Nonexclusive The remedies provided i his chapter and in Chapter 116 and other chapters in the Legislative Code aze not exclusive or in u of other rights and remedies that the city may have at law or in equity. The city is hereby ; rights-of-way, the provisions . d to seek legal and equitable relief for actual ar threatened injury to the public ng damages to the rights-of-way, whether or not caused by a violation of any of chapter or other provisions of the L,egislative Code. 32 AvrHORIZEn - ro FNncncE Iaw Pi Mu�svrn, Wscotvsnv, Iow.n, Sovn[ Daao W.�.scmvGiox D.C., C.OLORADO� IU.LWU, CN.tFORIVIA nivn Moi.*cnve W&LCER'S D]FECI DL4I. NUhIHER 672-3662 April 12, 2000 Messerli & Kramer pLOf¢sional assotlation Arro�YS nr Iaw 1800 F� Sr�r Towrns SSO SoL F�ni S'i'xEer Mnsuf'nrovs, Mu�soTA $$402-4218 "I�,artio�e (672) 672-3600 Fncsum,E (612) 672-3777 Db ��° Sr. Patn. OfPice I.E4GUE OF MINN'F_SO'I:A QIgS $Up,pING Sc'ii't:450, 145 Un'IVmsin AvIIVUe WFSr ST- PaUL, MuvxFSOra 55103-2Q94 "I�cEeaorm (651) 225-9757 FncsA�.s (651) 228-9787 Mr. Dan Bostrom, President BY HAND St. Paul City Councii St. Paul City Hall St. Paul, MN 55102 Re: Commenu on Pro�osed Amendments to St. Paul Legislative Code. Chapters 116 & 135, Right of Wav Administration and Rieht of Wav Permits Dear Mr. Bostrom: US West Communications has asked me to make some initial comments on the proposed ordinance aznending Chapters 116 and 135 of the St. Paul Legislative Code. Before I begin a secuon analysis o� each Chapter, I have two overall observations. First the issue of underground faciliry location is iroublesome from a legal perspective under both state and federal law. We do not think St. Paul can require underground location by right of way users because it wonld preclude certain above ground users (suclr as wireless) from the right of way, which violates the standard that rights of way should be administered in a competiuvely neutral manner. Second, these comments represent the most significant legal issues immediately identifiable. Chapter ll6, Rieht of Wav Adminisuation Section 116.02 Defuutions 4) "Citv manaeement cost". This defurition contains the ghrase "_., creating and maurtaining information on a geographical anformation system ("GIS") mapping system; ..." which is not an authorized statutory factor to be considered in assessing management costs. In addition, at the end of the defuution ffiere is a catch-all phrase that would, again, potentially broaden the statutorily allowed factors for assessing out-of-pocket costs incurred by the city in managing the public rights of way. In any event, actual costs should be published and }ustified by the City. 5) "Constructionperfornaance bond". The statute and the PUC rules provide the form of securiry should be acceptable to the local unit of government and it appeazs to me the proper reference should be to the City, rather than only the Director where there are other positions, such as the city attomey or the city council which may wish to comment on the form of security. 13)"Disruvtive costs" is rewritten to be a penalry, rather than a cost, neither of which is auffiorized by statute or PUC rule. It should be deleted. 20) °FacilitY or facilities". The PUC rule provides facility or facilities means any tangibie asset in the right of way required to �rovide utilitv services. The proposed St. Paul ordinance deletes the last phrase, which from a business perspective, may be appropriate. ao-a�� Dan Bostrom April 12, 2000 Page 2 22) "Minnesota Rules". Here the proposed ordinance attempts to isolate the Minnesota Rules as they were first published on June 1, 1999, regardless of whether they aze currenfly in effect. If the rules change the ordinance, from time to time, should be amended. Section 116.08 Reportine oblieations. This section is appropriate for plaunuig but, if used to deny a pemut (see chapter 135, section 135.12), is an illegal prohibition against use of the right of way under Minnesota law. Section 116.10 L,ocation of Facilities (a) Undererounding, (b) location, (c) Nuisance, and (d) Limitation of snace. These sections present a conflict with both Minnesota and Federal Law, if applied. Minnesota Statues § 237.162, et. se ., and § 253 of the Federal Telecommunications Act clearly provide that right of way use should be on "a competitively neutral" basis. By requiring undergrounding and ailowing the director to, make decisions for location of facilities within the right of way violate the competitive neutraliry standazd of those laws by discruninaung between above ground users, such as wireless, and below ground users, such as wireline companies. Either type of user may be disadvantaged depending upon the director's decisions. In addition, given ffie state-wide construction standazds of the PUC rules, the relocation of facilities within the right of way by the City can only be done pursuantto the high density corridor and relocation rules under Minn. Rules 7819.0200 and, 78193100. The following correcdons to ffie draft are recommended: i) On line 33, page 13, the words "... or above ground ..." should be inserted before ... or ..." ii) The last three words on line 34 and lines 35-37, all on page 13 should be deleted, with the phrase ".., and the standards of this section 116.10(a)," inserted. iii) The phrase "... which have already received zoning and other necessary approvals" on line 6 and 7, page 14 should be deleted. Sections 116.10(c) and (d) shouid be amended or deleted to conform with abandoned facilities, high density corridor and relocation of existing facilities rules. Ch�ter 135 Rieht of Wav Pernuts 135.06 Permit Fees (a) Excavation permit fee (2) The disruptive costs should be deleted as it is an unauthorized cost beyond which the city can charge (i.e. only the management cost and mapping data conversion costs may be charged an applicant), and § 135.06(b) (3) should be rewritten to include the word "conversion" between the words "data" and "costs' so the phrase should be "the mapping data conversion cost". (4) The degradation costs should be deleted, as it is an elecrive cost of the pemuttee if the pemuttee does not restore the right of way itself. (b) Obstruction pemut fee (2) The disruptive costs should be deleted as it is an unauthorized cost beyond which the ciry can charge (i.e. only the management cost and mapping data conversion costs may be chazged an applicant}, and § 135.06(b) (3) should be rewritten to include the word "conversion" between the words "data" and "costs" so the phrase should be °the manpin� data conversion cost". (4) The D c — �,(.$ Dan Bostrom Aprii 12, 2000 Page 3 degadauon costs should be deleted, as it is an elecuve cost of the permittee if ttie pemuttee dces not restore the right of way itself. (c} Computauon of disruptive costs. This section should be deleted as unnecessary because the cost cannot be charged a pemuttee. 135.12 Denial of Pemut (a) Mandatory denial. Sections 135.12(a)(2),(3) and (4) should be deleted as they exceed statutory authority. The failure to report or include a project in a plan would be an unreasonable withholding of approval or a violation of a prohibition on ffie City's authority. Minn. Stat. § 23'1.163, Subd 4 (d) and (e). (b) Permissive denial. To the extent the director has the opportunity to permissively deny a permit for only a temporary and limited time, in the interests of the public health, safery and welfare, or to prevent interference with safery and convenience of ordinary travel or to prevent interference with the e�ibiuon, celebration, festival or any other event, I believe that lunited and temporary power is reasonable and enforceable. However, there is a list of other factors which go well beyond the statutory authority under Minnesota Statute § 237.162, et se . and I believe that portion of the ordinance is not enforceable and shouid be deleted. The conflict is, again, one of providing powers to the designated authorities beyond the "mere managemenY' and "reasonable" regulation of the right of way which could result in unlawful discrimination and selection by and unong right of way users, or prevent the lawful use of the right of way without providing a grocess for obtaining a pernut otherwise authorized by this Chapter and Chapter 116. (d) Pertnits for additional next year projects. This section should be amended to conform with Minn. Stat. 237.163, Subd 4. (d), as follows: "The director may issue a permit to an applicant for a project not included in a plan if the applicant has used commercial]y reasonable efforts to anticipate and plan for the project." Secrion 135.18. Revocation o�emuts. Added language on lines 6 and 7 on page 32 should be deleted as exceeding statutory authority, and possibly exceeding ihe applicable standazds contained in Chapters 116 and 135 of the St. Paul L.egislative Code. US West believes many of its concems may be resolved in discussions among US West, the Public Works Department, and the City Attorney's office. We hope to bring agreed upon language back to the City Council at the earliest possible date. Very truly yours, S RLI 8y KRAMER P.A. `� � John R. Beattie c: Phyllis Harvin Jan Unstad Kevin Saville, Esq. oQ -a�� U S WEST Wireless, L.L.C. 426 North Fairview Avenue Room 701 St. Paul, MN 55104 April 12, 2000 St. Paul City Council City Hall and Court House 15 West Kellogg Boulevazd St. Paul, NLrI 55101 RE: Public Right-of-Way Ordinances Chapters 116 and 135 Aeaz City Councii, ,.� � .�,�, ���,,,.. ��' �. d�.. � . US West Wireless (USWW) respectively requests that the following comments be considered in the proposed amendments to the Righ,t-of-Way Ordinances to the City of St. Paul, which aze contained in Chapters 116 and 135. We are submitting these comments in an effort to improve the ongoing relationship between US West Wireless and the City of St. Paul and to help make the ordinances more workable for all. Specific comments are as follows: Sec. 116.01, p.2,1.14. Insert after "Code provisions" a new sentence: These newly enacted chapters hereby suoersede other �rovisions within zonine reeulations and the Codes. This would help eliminate any ambiguities between the author?ty of the Planning Commission and the Public Works and consolidate responsibility in the Public Works Departrnent. Sea 1i6.02 (4), p.3, 131. D elete: o...:.,,. ....a ... ...,.:,,:..,. :,.o,....,,�«:,... ,. .. � .,, ..,.:,.,.� r..F ..........:.... c..,-.e... " : This should be deleted because it is not a statutory factor to be considered in assessing management cost. Sea 116.02 (22), p.5, 1.26. Delete: �°'�°«'�°- �F ��"'�°- °�° �..�-°�''° :� F���° and add: as thev ma�be updated from time to time. As the PUC rules change from ume to time, the ordinance shonid be amended to reflect these changes. USA �.�;� Proud Sponsor 36USC380 bo -a6� USWW Comments Page 2 Sec. 116.06, p.9, 1.19. This section should be retained since it is a section that has granted a right to use the right of way, provided the user complies with all the requirements of the ordinance and law. This conforms with both Federal and State law and prevent differentiation between current and prospective public rights-of- way users. Sec. 116.07 (3)d. and (5), p.10, 1.23 and p.l l, I.1. There is an issue of congruence and possible conflict. One paragraph requires 15 days notice and the other requires 30 days notice. We suggest that both paragraphs provide for a 30 days notice period. Sec. 116.09 p.13,1.4. After the sentence ending "fee to the applicant.", insert the following new sentence: The City shall vrovide each applicant with iY s current data formatting requirements. This would allow applicant's to supply the City with data in the City's data format. Sec. 11610 (a) (2), p.14,11 After the term "transformers" insert the term transceivers. This would include ground equipment far wireless telecommunication service providers. Sec. 135.05, p. 22, 1.14. The conditional term "may" should be replaced with the mandatory term shall. If an applicant meets all terms and conditions the persnit shouid be issued without any further descriptions on the part of the director. Sec. 135.06 (3), p.28,1.22. To the extent that the city engineer has the opportunity to pernussively deny a permit for a only temporary and limited time, in the interest of the public health, safety and welfaze, or to prevent interference with safety and convenience of ordinary travel to prevent interference with the exhibition, celebration, festival or any other event, we believe that o�. ac� usww co�ents Page 3 limited and temporary power is reasonable and enforceable. However, there is a list of other factors wluch go well beyond the statutory authority under Minnesota Statute 237.162 et seq. and we believe that portion of the ordinance is not enforceable and should be deleted. The conflict is one of providing powers to the designated authorities beyond the "more managemenY' of the right-of-way which could result in unlawful discrimination and selection by and among right of way users, or the prevention of use outside a lawful zoning process. We trust that the City Council will give our comments due consideration and we look forward to continued good relations with the City of St. Paul in the future. I wiil be present at April 12`�' City Council meeting to answer any of your questions or concems regarding these comments. Submitted, Regional Real E�te Manager US West Wireless, L.L.C. 651 642-6016