ORD 98-02Adopted: 4/13/98 - CC
City of Otsego No. 98-2
County of Wright
State of Minnesota
ORDINANCE TO REGULATE THE
PUBLIC RIGHT OF WAY IN THE PUBLIC INTEREST,
AND TO PROVIDE FOR THE ISSUANCE AND ADMINISTRATION OF
RIGHT-OF-WAY PERMITS
THE COUNCIL OF OTSEGO ORDAINS:
Right -of -Way Management
Sec. 1.01. Findings and Purpose.
The primary objective of this ordinance is to protect the public's interest in its Right -of
Ways. The Otsego City Council finds that regulation, maintenance and administration of
public Right -of -Ways, as set forth in the ordinanceJs in the best interests of the health,
safety and welfare of Otsego's citizens. Specifically, the Council makes the following
findings:
1. Demands for usable space over, under and across public Right -of -Ways threaten
to exceed the already limited space practically available in existing public Right -of -
Ways.
2. Because systems are typically installed in shallow trenches, the streets are
restored in narrow "ribbons" which deteriorate faster than the surrounding street
surface and shorten the original design life, thereby increasing costs to taxpayers.
3. Lengthy and uncoordinated construction, installation, repair or relocation of
equipment or facilities within the public Right -of -Ways add to existing hazards and
inconvenience for motorists and pedestrians.
4. Telecommunication companies and users are not paying there fair share of the
costs to acquire, develop and maintain public Right -of -Ways.
5. Efficient management and regulation of public Right -of -Ways can ensure
economical access to City owned water, storm drain and sanitary sewer systems,
as well as economical access for all other current and future users of public Right -
of -Ways.
The ordinance seeks, among other things, to accomplish the following objectives:
1. Eliminate hidden subsidization of private companies by tax payers.
2. Protect the public health, safety, welfare and convenience.
I Ensure the structural integrity and quality of streets.
4. Minimize detours and bottlenecks on public streets do to lengthy and
uncoordinated construction activity within public Right -of -Ways.
5. Make efficient use of the limited space below the public Right -of -Way to ensure
both access by private utility and communications companies, as well as
economical access to City owned water, storm drain and sanitary sewer systems.
Sec. 1.02. Definitions.
The following definitions apply to the terms indicated below and found throughout
this Ordinance. References hereafter to "sections" are unless otherwise specified
references to sections in this Ordinance. Defined terms remain defined terms
whether or not capitalized.
(a) "Applicant" means any Person requesting permission to Excavate or
Obstruct a Right -of -Way.
(b) "City" means the City of Otsego, Minnesota. For purposes of section
1.28, City means its elected officials, officers, employees and agents.
(c) "Management Costs" means the actual costs the City incurs in managing
its Rights -of -Way, including such costs, if incurred, as those associated
with registering Applicants; issuing, processing, and verifying Right -of -
Way Permit applications; inspecting job sites and restoration projects;
maintaining, supporting, protecting, or moving user Facilities during Right -
of -Way work; determining the adequacy of Right -of -Way restoration;
restoring work inadequately performed after providing notice and the
opportunity to collect the work; and revoking Right -Of -Way Permits.
Management costs do not include payment by a Telecommunications Right -
of -Way User for the use of the Right -of -Way, the fees and cost of litigation
relating to the interpretation of Minnesota Session Laws 1997, Chapter 123;
Minnesota Statutes Sections 237.162 or 237.163 or any ordinance enacted
under those sections, or the City fees and costs related to appeals taken
pursuant to Section 130 of this Ordinance.
(d) "Dev_radation" ineans 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
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need to reconstruct such Right -of -Way earlier than would be required if the
excavation did not occur.
(e) "Degradation Cost" means the cost to achieve a level of restoration as
determined by the City at the time the permit is issued, not to exceed the
maximum Restoration shown in plates 1 to 13, set forth in proposed PUC
rules parts 7819.9900 to 7819.9950.
(f) "Degradation Fee" means the estimated fee established at the time of
permitting by the City to recover costs associated with the decrease in the
useful life of the Right -of -Way caused by the excavation, and which equals
the Degradation Costs.
(g) "Department" means the Department of Public Works of the City.
(h) "Director" means the City Administrator, or his or her designee, or such
other Person authorized by City Council resolution to carry out the duties
assigned to the Director pursuant to this:Ordinance .
(i) "Delay Penalty" is the penalty imposed as a result of unreasonable
delays in Right -of -Way construction.
0) "Emergency" means a condition that (1) poses a clear and immediate
danger to life or health, or of a significant loss of property; or (2) requires
immediate repair or replacement of Facilities in order to restore Service to a
customer.
(k) "Equipment" means any tangible asset used to install, repair, or
maintain Facilities in any Right -of -Way.
(1) "Excavate" means to dig into or in any way remove or physically disturb
or penetrate any part of a Right -of -Way.
(m) "Excavation Permit" means the permit which, pursuant to this
Ordinance, must be obtained before a Person may Excavate in a Right -of -
Way. An Excavation Permit allows the holder to Excavate that part of the
Right -of -Way described in such permit.
(n) "Excavation Permit Fee" means money paid to the City by an Applicant
to cover the costs as provided in Section 1.11.
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(o) "Facility or Facilities" means any tangible asset in the Right -of -Way
required to provide Utility Service.
(p) "Inspector" means the City Engineer, or such other Person authorized by
the City Council resolution to carry out inspections related to the provisions
of this Ordinance.
(q) "Local Representative" means a local Person or Persons, or designee of
such Person or Persons, authorized by a Registrant to accept Service and to
make decisions for that Registrant regarding all matters within the scope of
this Ordinance.
(r) "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.
(s) "Obstruction Permit" means the permit which, pursuant to this
Ordinance, must be obtained before a Person may Obstruct a Right -of -Way,
allowing the holder to hinder free and open passage over the specified
portion of that Right -of -Way by placing Equipment described therein on the
Right -of -Way for die duration specified therein.
(t) "Obstruction Permit Fee" means money paid to the City by a Permittee
to cover costs as provided in Section 1.11.
(u) "Patch or Patching" means a method of pavement replacement that is
temporary in nature. A Patch consists of (1) the compaction of the subbase
and aggregate base, and (2) the replacement, in kind, of the existing
pavement for a minimum of two feet beyond the edges of the excavation in
all directions. A Patch is considered full Restoration only when the
pavement is included in the City's five year project plan.
(v) "Permittee" means any Person to whom a permit to Excavate or
Obstruct a Right -of -Way has been granted by the City under this
Ordinance.
(w) "Person" means any natural or corporate Person, business association or
other business entity including, but not limited to, a partnership of any kind,
a sole proprietorship, a political subdivision, a public or private agency of
any kind, a utility, a successor or assign of any of the foregoing, or any
other legal entity.
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(x) "Probation" means the status of a Person that has been found in
noncompliance with the conditions of this Ordinance.
(y) "Probationary Period" means one year from the date that a Person has
been notified in writing that they have been put on Probation.
(z) "Registrant" means any Person who (1) has or seeks to have its
Equipment or Facilities located in any Right -of -Way, or (2) in any way
occupies or uses, or seeks to occupy or use, the Right -of -Way or place its
Facilities in the Right -of -Way.
(aa) "Construction Performance Bond" means a performance bond, or other
form of security posted to ensure the availability of sufficient funds to assure that
Right -of -Way Excavation and Obstruction work is completed in accordance with
the terms of the Right -of -Way Permit, or other applicable State law or local
regulation.
(bb) "Restore or Restoration" means the process by which a Right -of -Way
is returned to the same condition and life expectancy that existed before
excavation.
(cc) "Restoration Cost" means the amount of money paid to the City by a
Permittee to achieve the level of restoration according to plates 1 to 13 of
PUC rules.
(dd) "Right -of -Way" means the area on, below, or above a public roadway,
highway, street, cartway, bicycle lane and public sidewalk in which the
City has an interest, including other dedicated rights-of-way for travel
purposes and utility easements of the City. A Right -of -Way does not
include the airwaves above a Right -of -Way with regard to cellular or other
nonwire telecommunications or broadcast service.
(ee) "Right -of -Way Permit" means either the Excavation Permit or the
Obstruction Permit, or both, depending on the context, required by this
Ordinance.
(ff) "Service" or "Utility Service" includes but is not limited to (1) those
services provided by a public utility as defined in Minn. Stat. § 216B.02,
subds. 4 and 6; (2) telecommunications, pipeline, community antenna
television, fire and alarm communications, water, electricity, light, heat,
cooling energy, or power services; (3) the services provided by a
corporation organized for the purposes set forth in Minn. Stat. 3 300.03; (4)
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the services provided by a district heating or cooling system; and (5) cable
communications systems as defined in Minn. Stat. Chap. 238; and a (6)
Telecommunication Right -of -Way User as defined in (kk).
(gg) "Supplementary Application" means an application made to Excavate
or Obstruct more of the Right -of -Way than allowed by, or to extend, a
permit that had already been issued.
(hh) "Telecommunication Rights -of -Way User" means a Person owning or
controlling a Facility in the Right -of -Way, or seeking to own or control a
Facility in the Right -of -Way, that is used or is intended to be used for
transporting telecommunication or other voice or data information. For
purposes of this Ordinance, a cable communication system defined and
regulated under Minn. Stat. Chap. 2381 and telecommunication activities
related to providing natural gas or electric energy services whether provided
by a public utility as defined in Minn. Stat. Sec. 216B.02, a municipality, a
municipal gas or power agency organized under Minn. Stat. Chaps. 453 and
453A, or a cooperative electric association organized under Minn. Stat.
Chap. 308A, are not Telecommunications Right -of -Way Users for purposes
of this Ordinance.
(ii) "Unusable Facilities" means Facilities in the Right -of -Way which have
remained unused for one year and for which the Registrant is unable to
provide proof that it has either a plan to begin using it within the next
twelve (12) months or a potential purchaser or user of the Facilities.
Sec. 1.03. Administration.
The Director is the principal City official responsible for the administration of the
Rights -of -Way, Right -of -Way Permits, and the ordinances related thereto. The
Director may delegate any or all of the duties hereunder.
Sec. 1.04. Utility Coordination Committee
The City may create an advisory utility coordination committee. Participation on
the committee is voluntary. It will be composed of any registrants that wish to
assist the City in obtaining information and by making recommendations regarding
use of the right-of-way, and to improve the process of performing construction
work therein. The Director may determine the size of such committee and shall
appoint members from a list of registrants that have expressed a desire to assist the
city.
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Sec. 1.05. Registration and Right -of -Way Occupancy.
Subd. 1. Registration. Each Person who occupies, uses, or seeks to occupy or
use, the Right -of -Way for purposes of placing, maintaining or repairing any
Equipment or Facilities in the Right -of -Way, including Persons with installation
and maintenance responsibilities by lease, sublease or assignment, must register
with the Director. Registration will consist of providing application information
and paying a registration fee.
Subd. 2. Registration Prior to Work. No Person may construct, install, repair,
remove, relocate, or perforin any other work on, or use any Facilities or any part
thereof in any Right -of -Way without first being registered with the Director.
Subd. 3. Erceptions. Nothing herein shall be construed to repeal or amend the
provisions of a City ordinance permitting Persons to plant or maintain boulevard
plantings or gardens in the area of the Right -of -Way between their property and
the street curb. Persons planting or maintaining boulevard plantings or gardens
shall not be deemed to use or occupy the Right -of -Way, and shall not be required
to obtain any permits or satisfy any other requirements for planting or maintaining
such boulevard plantings or gardens under this Ordinance. However, nothing
herein relieves a Person from compliance with the provisions of the Minn. Stat.
Chap. 216D, "One call" Law.
Sec. 1.06. Registration Information.
Subd. 1. Information Required. The information provided to the Director at the
time of registration shall include, but not be limited to:
(a) Each of the following, if applicable; Registrant's name, Gopher One -
Call registration certificate number, address, e-mail address, telephone and
facsimile numbers.
(b) The naive, address and e-mail address, if applicable, and telephone and
facsimile numbers of a Local Representative. The Local Representative or
designee shall be available at all times. Current information regarding how
to contact the Local Representative in an Emergency shall be provided at
the time of registration.
(c) A certificate of insurance or self-insurance:
(1) Verifying that an insurance policy has been issued to the
Registrant by an insurance company licensed to do business in the
State of Minnesota, or a form of self insurance acceptable to the
Director;
(2) Verifying that the Registrant is insured against claims for
Personal injury, including death, as well as claims for property
damage arising out of the (i) use and occupancy of the Right -of -Way
by the Registrant, its officers, agents, employees and Permittees, and
(ii) placement and use of Facilities in the Right -of -Way by the
Registrant, its officers, agents, employees and Permittees, including,
but not limited to, protection against liability arising from completed
operations, damage of underground Facilities and collapse of
property;
(3) Naming the City as an additional insured as to whom the
coverages required herein are in force and applicable and for whom
defense will be provided as to all such coverages;
(4) Requiring that the Director be notified thirty (30) days in
advance of cancellation of the policy or material modification of a
coverage term;
(5) Indicating comprehensive liability coverage, automobile liability
coverage, workers compensation and umbrella coverage established
by the Director in amounts sufficient to protect the City and the
public and to carry out the purposes and policies of this Ordinance.
(d) The City may require a copy of the actual insurance policies.
(e) If the Person is a corporation, a copy of the certificate required to be
filed under Minn. Stat. § 300.06 as recorded and certified to by the
Secretary of State.
(i) A copy of the Person's order granting a certificate of authority from the
Minnesota Public Utilities Commission or other applicable state or federal
agency, where the Person is lawfully required to have such certificate from
said Commission or other state or federal agency.
Subd. 2. Notice of*Changes. The Registrant shall keep all of the information listed
above current at all times by providing to the Director information as to changes
within fifteen (15) days following the date on which the Registrant has knowledge
of any change.
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Sec. 1.07. Reporting Obligations.
Subd. 1. Operations. Each Registrant shall, at the time of registration and by
December 1 of each year, file a construction and major maintenance plan for
underground Facilities with the Director. 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:
(a) The locations and the estimated beginning and ending dates of all
Projects to be commenced during the next calendar year (in this section, a
"Next -year Project"); and
(b) To the extent known, the tentative locations and estimated beginning
and ending dates for all Projects contemplated for the five years following
the next calendar year (in this section, a "Five-year Project").
The term "project" in this section shall include both Next -year Projects and Five-
year Projects.
By January 1 of each year the Director will have available for inspection in the
Director's office a composite list of all Projects of which the Director has been
informed in the annual plans. All Registrants are responsible for keeping
themselves informed of the current status of this list.
Thereafter, by February 1, each Registrant may change any Project in its list of
Next -year Projects, and must notify the Director and all other Registrants of all
such changes in said list. Notwithstanding the foregoing, a Registrant may at any
time join in a Next -year Project of another Registrant listed by another Registrant.
Subd. 2. Additional Ne_vt-year Projects Notwithstanding the foregoing, the
Director will not deny an application for a Right -of -Way Permit for failure to
include a project in a plan submitted to the City if the Registrant has used
commercially reasonable efforts to anticipate and plan for the project.
Sec. 1.08. Permit Requirement.
Subd. 1. Permit Required. Except as otherwise provided in this Code, no Person
may Obstruct or Excavate any Right -of -Way without first having obtained the
appropriate Right -of -Way Permit from the Director to do so.
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(a) Excavation Permit An Excavation Permit is required by a Registrant
to Excavate that part of the Right -of -Way described in such permit and to
hinder fi-ee and open passage over the specified portion of the Right -of -
Way by placing Facilities described therein, to the extent and for the
duration specified therein.
(b) Obstruction Permit An Obstruction Permit is required by a Registrant
to hinder free and open passage over the specified portion of Right -of -Way
by placing Equipment described therein on the Right -of -Way, to the extent
and for the duration specified therein. An Obstruction Permit is not required
if a Person already possesses a valid Excavation Permit for the same
project.
Subd. 2. Permit Ertensions. No Person may Excavate or Obstruct the Right -of -
Way beyond the date or dates specified in the permit unless such Person (i) makes
a Supplementary Application for another Right -of -Way Permit before the
expiration of the initial permit, and (ii) a new permit or permit extension is
granted.
Subd. 3. Delay Penalty. Notwithstanding subd. 2 of this section, the City shall
establish and impose a Delay Penalty for unreasonable delays in Right -of -Way
excavation, Obstruction, Patching, or Restoration. The Delay Penalty shall be
established from time to time by City Council resolution.
Subd. 4. Permit Duplay. Permits issued under this Ordinance shall be
conspicuously displayed or otherwise available at all times at the indicated work
site and shall be available for inspection by the Director.
Sec. 1.09. Permit Applications.
Application for a permit is made to the Director. Right -of -Way Permit applications
shall contain, and will be considered complete only upon compliance with the
requirements of the following provisions:
(a) Registration with the Director pursuant to this Ordinance;
(b) Submission of a completed permit application form, including all
required attachments, and scaled drawings showing the location and area of
the proposed project and the location of all known existing and proposed
Facilities.
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(c) Payment of money due the City for
(1) permit fees, estimated Restoration Costs and other Managment
Costs;
(2) prior Obstructions or Excavations;
(3) any undisputed loss, damage, or expense suffered by the City
because of Applicant's prior excavations or Obstructions of the
rights-of-way or any Emergency actions taken by the City;
(4) franchise or user fees, if applicable.
(d) Payment of disputed amounts due the City by posting security or
depositing in an escrow account an amount equal to at least 110% of the
amount owing.
(e) When an Excavation Permit is requested for purposes of installing
additional Facilities, and the posting of a Construction Performance Bond
for the additional Facilities is insufficient, the posting of an additional or
larger Construction Performance Bond for the additional Facilities may be
required.
Sec. 1.10. Issuance of permit; conditions.
Subd. 1. Permit Issuance If the Applicant has satisfied the requirements of this
Ordinance, the Director shall issue a permit.
Subd. 2. Conditions. The Director may impose reasonable conditions upon the
issuance of the permit and the performance of the Applicant thereunder to protect
the health, safety and welfare or when necessary to protect the Right -of -Way and
its current use.
Sec. 1.11. Permit Fees.
Subd. 1. F—rcuvution Permit Fee The Excavation Permit Fee shall be established
by the Director in an amount sufficient to recover the following costs:
(a) the City Management Costs;
(b) Degradation Costs, if applicable.
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Subd. 2. Obstruction Permit Fee. The Obstruction Permit Fee shall be
established by the Director and shall be in an amount sufficient to recover the City
Management Costs.
Subd. 3. Payment of Permit Fees. No Excavation Permit or Obstruction Permit
shall be issued without payment of Excavation or Obstruction Permit Fees. The
City may allow Applicant to pay such fees within thirty (30) days of billing.
Subd. 4. Non refundable. Permit fees that were paid for a permit that the Director
has revoked for a breach as stated in Section 1.21 are not refundable.
Sec. 1.12. Right -of -Way Patching and Restoration.
Subd. 1. Timing. The work to be done under the Excavation Permit, and the
Patching and Restoration of the Right -of -Way as required herein, must be
completed within the dates specified in the permit, increased by as many days as
work could not be done because of extraordinary circumstances beyond the control
of the Permittee or when work was prohibited as unseasonal or unreasonable under
Section 1.15.
Subd. 2. Patch and Restoration. Permittee shall Patch its own work. The City
may choose either to have the Permittee restore the Right -of -Way or to Restore the
Right -of -Way itself.
(a) City Restoration. If the City restores the Right -of -Way, Permittee shall
pay the costs thereof within thirty (30) days of billing. If, during the thirty-
six (36) months following such Restoration, the pavement settles due to
Permittee's improper backfilling, the Permittee shall pay to the City, within
thirty (30) days of billing, all costs associated with having to correct the
defective work.
(b) Permittee Restoration. If the Permittee Restores the Right -of -Way
itself, it shall at the tune of application for an Excavation Permit post a
Construction Performance Bond in an amount determined by the City
Engineer to be sufficient to cover the cost of Restoration. If, within thirty-
six (36) months after completion of the Restoration of the Right -of -Way,
the City Engineer determines that the Right -of -Way has been properly
Restored, the surety on the Construction Performance Bond shall be
released.
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Subd. 3. Standards The Permittee shall perform Patching and Restoration
according to the standards and with the materials specified or approved by the City
Engineer. The City Engineer shall have the authority to prescribe the manner and
extent of the Restoration, and may do so in written procedures of general
application or on a case-by-case basis. The City Engineer in exercising this
authority shall comply with PUC standards for Right -of -Way Restoration and shall
further be guided by the following considerations:
(a)The number, size, depth and duration of the excavations, disruptions or
damage to the Right -of -Way.
(b) The traffic volume carried by the Right -of -Way; the character of the
neighborhood surrounding the Right -of -Way;
(c) The pre -excavation condition of the Right -of -Way; the remaining life
expectancy of the Right -o f -Way affected by the excavation;
(d) Whether the relative cost of the method of restoration to the Permittee is
in reasonable balance with the prevention of an accelerated depreciation of
the right-of-way that would otherwise result from the excavation,
disturbance or damage to the Right -of -Way; and
(e) The likelihood that the particular method of restoration would be
effective in slowing the depreciation of the Right -of -Way that would
otherwise take place.
Subd. 4. Guarantees. By choosing to Restore the Right -of -Way itself, the
Permittee guarantees its work and shall maintain it for thirty-six (36) months
following its completion. During this 36 -month period it shall, upon notification
from the Director, correct all restoration work to the extent necessary, using the
method required by the City Engineer. Said work shall be completed within five
(5) business days of the receipt of the notice from the Director; exclusive of
weekends, legal holidays, periods during which work cannot be done because of
circumstances beyond Permittees reasonable control or days when work is
prohibited as unseasonal or unreasonable under Section 1.15.
Subd. 5. Failure to Restore: If the Permittee fails to Restore the Right -of -Way in
the manner and to the condition required by the City Engineer, or fails to
satisfactorily and timely complete all Restoration required by the City Engineer,
the City at its option may do such work. In that event the Permittee shall pay to the
City, within thirty (30) days of billing, the cost of Restoring the Right-of-Way.,lf
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Permittee fails to pay as required, the City may exercise its rights under the
Construction Performance Bond.
Subd. 6. Degradation Cost in Lieu of Restoration. In lieu of Right -of -Way
Restoration, a Right -of -Way user may elect to pay a Degradation Fee. However,
the Right -of -Way User shall remain responsible for Patching and the Degradation
Fee shall not include the cost to accomplish these responsibilities.
Sec. 1.13. Joint Applications.
Subd. 1. Joint Application. Registrants may jointly apply for permits to Excavate
or Obstruct the Right -of -Way at the same place and time.
Subd. 2. With City Projects Registrants who join in a scheduled Obstruction or
excavation Performed by the City, whether or not it is a joint application by two or
more Registrants or a single application, are not required to pay the Obstruction
and Degradation portions of the permit fee.
Subd. 3. Shares! Fees. Registrants who apply for permits for the same
Obstruction or excavation, which the City does not perform, may share in the
payment of the Obstruction or Excavation Permit Fee. Registrants must agree
among themselves as to the portion each will pay and indicate the same on their
applications.
Sec. 1.14. Supplementary Applications.
Subd. 1. Limitation on Area. A Right -Of -Way Permit is valid only for the area of
the Right -of -Way specified in the permit. No Permittee may do any work outside
the area specified in the permit, except as provided herein. Any Permittee which
determines that an area greater than that Specified in the permit must be
Obstructed or Excavated must before working in that greater area (i) make
application for a permit extension and pay any additional fees required thereby,
and (ii) be granted a new permit or permit extension.
Subd. 2. Limitation on dutes. A Right -of -Way Permit is valid only for the dates
specified in the permit. No Permittee may begin its work before the permit start
date or, except as provided herein, continue working after the end date. If a
Permittee does not finish the work by the permit end date, it must apply for a new
permit for the additional time it needs, and receive the new Permit or an extension
of the old permit before working after the end date of the previous permit. This
Supplementary Application must be done before the permit end date.
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Sec. 1.15. Other Obligations.
Subd. I. Compliance With Other Laws. Obtaining a Right -of -Way Permit does
not relieve Permittee of its duty to obtain all other necessary permits, licenses, and
authority and to pay all fees required by the City or other applicable rule, law or
regulation. A Permittee shall comply with all requirements of local, state and
federal laws, including Minn. Stat. §§ 216D.01-.09 ("One Call Excavation Notice
System"). A Pernittee shall perform all work in conformance with all applicable
codes and established rules and regulations, and is responsible for all work done in
the Right -of -Way pursuant to its permit, regardless of who does the work.
Subd. 2. Prohibited Work. Except in an Emergency, and with the approval of the
Director, no Right -of -Way Obstruction or excavation may be done when
seasonally prohibited or when conditions are unreasonable for such work.
Subd. 3. Interference with Right -of -Way. A Permittee shall not so Obstruct a
Right -of -Way that the natural free and clear passage of water through the gutters
or other waterways shall be interfered with. Private vehicles of those doing work
in the Right -of -Way may not be parked within or next to a permit area, unless
parked in conformance with City parking regulations. The loading or unloading of
trucks must be done solely within the defined permit area unless specifically
authorized by the permit.
Sec. 1.16. Denial of permit.
The Director may deny a permit for failure to meet the requirements and
conditions of this Ordinance or if the Director determines that the denial is
necessary to protect the health, safely, and welfare or when necessary to protect
the Right -of -Way and its current use.
Sec. 1.17. Installation Requirements.
The excavation, backfilling, Patching and Restoration, and all other work
performed in the Right -of -Way shall be done in conformance with Engineering
Standards adopted by the PUC or other applicable local requirements, in so far as
they are not inconsistent with the PUC Rules.
Sec. 1.18. Inspection.
Subd. I. Notice oj'C,mpletion. When the work under any permit hereunder is
completed. the Pennittee shall furnish a Completion Certificate in accordance
PUC Rules.
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Subd. 2. Site Inspection. Permittee shall make the work -site available to the City
Engineer and to any other City employees or agents and to all others as authorized
by law for inspection at all reasonable times during the execution of and upon
completion of the work.
Subd 3. Authority of Director.
(a) At the time of inspection the Director may order the immediate
cessation of any work which poses a serious threat to the life, health, safety
or well-being of the public.
(b) The Director may issue an order to the Permittee for any work which
does not conform to the terms of the permit or other applicable standards,
conditions, or codes. The order shall state that failure to correct the
violation will be cause for revocation of the permit. Within ten (10) days
after issuance of the order, the Permittee shall present proof to the Director
that the violation has been corrected. If such proof has not been presented
within the required time, the Director may revoke the permit pursuant to
Sec. 1.21.
Sec. 1.19. Work Done Without a Permit.
Subd. 1. Emergency Situations. Each Registrant shall immediately notify the
Director of any event regarding its Facilities which it considers to be an
Emergency. The Registrant may proceed to take whatever actions are necessary to
respond to the Emergency. Within two business days after the occurrence of the
Emergency the Registrant shall apply for the necessary permits, pay the fees
associated therewith and fulfill the rest of the requirements necessary to bring
itself into compliance with this Ordinance for the actions it took in response to the
Emergency.
If the Direttor becomes aware of an Emergency regarding a Registrant's Facilities,
the Director will attempt to contact the Local Representative of each Registrant
affected, or potentially affected, by the Emergency. In any event, the Director may
take whatever action it deems necessary to respond to the Emergency, the cost of
which shall be borne by the Registrant whose Facilities occasioned the
Emergency.
Subd. 2. Nin -Emergency Situations. Except in an Emergency, any Person who,
without first having obtained the necessary permit, Obstructs or Excavates a Right -
of -Way must subsequently obtain a permit, and as a penalty pay double the normal
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fee for said permit, pay double all the other fees required by this Ordinance,
deposit with the Director the fees necessary to correct any damage to the Right-of-
Way
ightofWay and comply with all other requirements of this Ordinance.
Sec. 1.20. Supplementary Notification.
If the Obstruction or Excavation of the Right -of -Way begins later or ends sooner
than the date given on the permit, Permittee shall notify the Director of the
accurate information as soon as this information is known.
Sec. 1.21. Revocation of Permits.
Subd. 1. Substantial Breach. The City reserves its right, as provided herein, to
revoke any Right -of -Way Permit, without a fee refund, if there is a substantial
breach of the terms and conditions of any statute, ordinance, rule or regulation, or
any material condition of the permit. A substantial breach by Permittee shall
include, but shall not be limited to, the following:
(a) The violation of any material provision of the Right -of -Way Permit;
(b) An evasion or attempt to evade any material provision of the Right -of -
Way Permit, or the perpetration or attempt to perpetrate any fraud or deceit
upon the City or its citizens;
(c) Any material misrepresentation of fact in the application for a Right -of -
Way Permit;
(d) The failure to complete the work in a timely manner; unless a permit
extension is obtained or unless the failure to complete work is due to
reasons beyond the Pennittee's control; or
(e) The failure to correct, in a timely manner, work that does not conform to
a condition indicated on an Order issued pursuant to Sec. 1.18.
Subd. 2. Written Notice of Breach. If the Director determines that the Permittee
has committed a substantial breach of a term or condition of any statute,
ordinance, rule, regulation or any condition of the permit the Director shall make a
written demand upon the Permittee to remedy such violation. The demand shall
state that continued violations may be cause for revocation of the permit. A
substantial breach, as stated above, will allow the Director, at his or her discretion,
to place additional or revised conditions on the permit to mitigate and remedy the
breach.
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Subd. 3. Response to Notice of Breach. Within twenty-four (24) hours of
receiving notification of the breach, Permittee shall provide the Director with a
plan, acceptable to the Director, that will cure the breach. Permittee's failure to so
contact the Director, or the Permittee's failure to submit an acceptable plan, or
Permittee's failure to reasonably implement the approved plan, shall be cause for
immediate revocation of the permit. Further, Permittee's failure to so contact the
Director, or the Permittee's failure to submit an acceptable plan, or Permittee's
failure to reasonably implement the approved plan, shall automatically place the
Permittee on Probation for one (1) full year.
Subd. 4. Cause fur Probation. 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 full year, such as, but not limited to, working out of
the allotted time period or working on Right -of -Way grossly outside of the permit
authorization.
Subd. 5. Automatic Revocation. If a Permittee, while on Probation, commits a
breach as outlined above, Permittee's permit will automatically be revoked and
Permittee will not be allowed further permits for one full year, except for
Emergency repairs.
Subd. 6. Reimbursement oj'CIV Costs If a permit is revoked, the Permittee shall
also reimburse the City for the City's reasonable costs, including Restoration Costs
and the costs of collection and reasonable attorneys' fees incurred in connection
with such revocation.
Sec. 1.22. Mapping Data.
Subd. 1. Information ReyuiretL Each Registrant shall provide Mapping
information required by the City in accordance with PUC Rules:
Subd. 2. Trude Secret Injimmution. At the request of any Registrant, any
information requested by the City, which qualifies as a "trade -secret" under Minn.
Stat. § 13.37 (b) shall be treated as trade secret information as detailed therein.
Sec. 1.23. Location of Facilities.
Subd. 1. Undergroundina. Unless otherwise permitted by an existing franchise or
Minnesota Stat. 216B.34, or unless existing above -ground Facilities is repaired or
replaced, new construction and the installation of new Facilities and replacement
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of old Facilities shall be done underground or contained within buildings or other
structures in conformity with applicable codes.
Subd. 2. Corridors The City Engineer may assign specific corridors within the
Right -of -Way, or any particular segment thereof as may be necessary, for each
type of Facilities that is or, pursuant to current technology, the City Engineer
expects will someday be located within the Right -of -Way. All excavation,
obstruction, or other permits issued by the Director involving the installation or
replacement of Facilities shall designate the proper corridor for the Facilities at
issue.
Any Registrant who has Facilities in the Right -of -Way in a position at variance
with the corridors established by the City Engineer shall, no later than at the time
of the next reconstruction or excavation of the area where the Facilities are
located, move the Facilities to the assigned position within the Right -of -Way,
unless this requirement is waived by the Director for good cause shown, upon
consideration of such factors as the remaining economic life of the Facilities,
public safety, customer Service needs and hardship to the Registrant.
Subd. 3. Nuisance: One year after the passage of this Ordinance, any Facilities
found in a Right -of -Way that have 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 or taking possession of the
Facilities and restoring the Right -of -Way to a useable condition.
Subd. 4. Limitation of Space. To protect health, safety, and welfare or when
necessary to protect the Right -of -Way and its current use, the Director shall have
the power to prohibit or limit the placement of new or additional Facilities within
the Right -of -Way. In making such decisions, the 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 considerations of the public interest, the public's
needs for the particular Utility Service, the condition of the Right -of -Way, the time
of year with respect to essential utilities, the protection of existing Facilities in the
Right -of -Way, and future City plans for public improvements and development
projects which have been determined to be in the public interest.
Sec. 1.24. Relocation of Facilities.
A Registrant must promptly and at its own expense, with due regard for seasonal
working conditions, permanently remove and relocate its Facilities in the Right -of -
Way whenever the Director for good cause requests such removal and relocation,
and shall restore the Right -of -Way to the same condition it was in prior to said
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removal or relocation. The Director may make such request to prevent interference
by the Company's Equipment or Facilities with (i) a present or future City use of
the Right -of -Way, (ii) a public improvement undertaken by the City, (iii) an
economic development project in which the City has an interest or investment, (iv)
when the public health, safety and welfare require it, or (v) when necessary to
prevent interference with the safety and convenience of ordinary travel over the
Right -of -Way.
Notwithstanding the foregoing, a Person shall not be required to remove or
relocate its Facilities from any Right -of -Way which has been vacated in favor of a
non-governmental entity unless and until the reasonable costs thereof are first paid
to the Person therefor.
Sec. 1.25. Pre -Excavation Facility and Facilities Location.
In addition to complying with the requirements of Minn. Stat. §§ 216D.01-.09
("One Call Excavation Notice System") before the start date of any Right -of -Way
excavation, each Registrant who has Facilities or Equipment in the area to be
excavated shall mark the horizontal and approximate vertical placement of all said
Facilities. Any Registrant whose Facilities is less than twenty (20) inches below a
concrete or asphalt surface shall notify and work closely with the excavation
contractor to establish the exact location of its Facilities and the best procedure for
excavation.
Sec. 1.26. Damage to Other Facilities.
When the City does work in die Right -of -Way and finds it necessary to maintain,
support, or move a Registrant's Facilities to protect it, the Director shall notify the
Local Representative as early as is reasonably possible. The costs associated
therewith will be billed to that Registrant and must be paid within thirty (30) days
from the date of billing.
Each Registrant shall be responsible for the cost of repairing any Facilities in the
Right -of -Way which it or its Facilities damages. Each Registrant shall be
responsible for the cost of repairing any damage to the Facilities of another
Registrant caused during the City's response to an Emergency occasioned by that
Registrant's Facilities.
Sec. 1.27. Right -of -Way vacation.
Subd. 1. Reservation uj'Riht. if the City vacates a Right -of -Way which contpLins
the Facilities of a Registrant, and if the vacation does not require the relocation bf
We
Registrant's or Permittee's Facilities, the City shall reserve, to and for itself and all
Registrants having Facilities in the vacated Right -of -Way, the right to install,
maintain and operate any Facilities in the vacated Right -of -Way and to enter upon
such Right -of -Way at any time for the purpose of reconstructing, inspecting,
maintaining or repairing the same.
Subd. 2. Relocation of Facilities. If the vacation requires the relocation of
Registrant's or Permittee's Facilities; and (i) if the vacation proceedings are
initiated by the Registrant or Permittee, the Registrant or Permittee must pay the
relocation costs; or (ii) if the vacation proceedings are initiated by the City, the
Registrant or Permittee must pay the relocation costs unless otherwise agreed to by
the City and the Registrant or Permittee; or (iii) if the vacation proceedings are
initiated by a Person or Persons other than the Registrant or Permittee, such other
Person or Persons must pay the relocation costs.
Sec. 1.28. Indemnification and Liability.
By registering with the Director, or by accepting a permit under this Ordinance, a
Registrant or Permittee agrees as follows:
Subd. 1. Limitation of Liability. By reason of the acceptance of a registration or
the grant of a Right -of -Way Permit, the City does not assume any liability (i) for
injuries to Persons, damage to property, or loss of Service claims by parties other
than the Registrant or the City, or (ii) for claims or penalties of any sort resulting
from the installation, presence, maintenance, or operation of Facilities by
Registrants or activities of Registrants.
Subd. 2. Indemnification. A Registrant or Permittee shall indemnify, keep, and
hold the City free and harmless from any and all liability on account of injury to
Persons or damage to property occasioned by the issuance of permits or by the
construction, maintenance, repair, inspection, or operation of Registrant's or
Permittee's Facilities located in the Right -of -Way.
The City shall not be indemnified for losses or claims occasioned through its own
negligence except for losses or claims arising out of or alleging the local
government unit's negligence as to the issuance of permits or inspections to ensure
permit compliance. The City shall not be indemnified if the injury or damage
results from the performance in a proper manner of acts that the Registrant or
Permittee reasonably believes will cause injury or damage, and the performance is
nevertheless ordered or directed by the- City after receiving notice of the
Registrant's or Pennittee's detennination.
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Subd. 3. Defense If a suit is brought against the City under circumstances where
the Registrant or Permittee is required to indemnify, the Registrant or Permittee, at
its sole cost and expense, shall defend the City in the suit if written notice of the
suit is promptly given to the Registrant or Permittee within a period in which the
Registrant or Permittee is not prejudiced by the lack or delay of notice.
If the Registrant or Permittee is required to indemnify and defend, it shall
thereafter have control of the litigation, but the Registrant or Permittee may not
settle the litigation without the consent of the City. Consent will not be
unreasonably withheld.
This part is not, as to third parties, a waiver of any defense, immunity, or damage
limitation otherwise available to the City.
In defending an action on behalf of the City, the Registrant or Pennittee is entitled
to assert in an action every defense, immunity, or damage limitation that the City
could assert in its own behalf.
Sec. 1.29. Abandoned and Unusable Facilities.
Subd. 1. Discontinued Operations. A Registrant who has determined to
discontinue its operations in the City must either:
(a) Provide information satisfactory to the Director that the Registrant's
obligations for its Facilities in the Right -of -Way under this Ordinance have
been lawfully assumed by another Registrant; or
(b) Submit to the Director a proposal and instruments for transferring
ownership of its Facilities to the City. If a Registrant proceeds under this
clause, the City may, at its option:
(1) purchase the Facilities; or
(2) require the Registrant, at its own expense, to remove it; or
(3) require the Registrant to post a bond in an amount sufficient to
reimburse the City for reasonably anticipated costs to be incurred in
removing the Facilities.
Subd. 2. Abandoned Facilities. Facilities of a Registrant who fails to comply
with subd. l of this Section, and which, for two (2) years, remains unused shall be
deemed to be abandoned. Abandoned Facilities are deemed to be a nuisance. Tlie
22
City may exercise any remedies or rights it has at law or in equity, including, but
not limited to, (i) abating the nuisance (ii) taking possession of the Facilities and
restoring it to a useable condition, or (iii) requiring removal of the Facilities by the
Registrant, or the Registrant's successor in interest.
Subd. 3. Removal. Any Registrant who has unusable and abandoned Facilities in
any Right -of -Way shall remove it from that Right -of -Way during the next
scheduled excavation, unless this requirement is waived by the Director.
Sec. 1.30. Appeal.
a) A Right -of -Way User that: (1) has been denied registration; (2) has been
denied a permit; (3) has had permit revoked; or (4) believes that the fees
imposed are invalid, may have the denial, revocation, or fee imposition
reviewed, upon written request, by the City Council. The City Council shall
act on a written request in a timely manner. A decision by the City Council
affirming the denial, revocation, or fee imposition will be writing and
supported by written fundings establishing the reasonableness of the
decision.
b) Upon affirmation by the City Council of the denial, revocation, or fee
imposition, the Right -of -Way User shall have the right to have the matter
resolved by binding arbitration. Binding arbitration must be before an
arbitrator- agreed to by both the City Council and Right -of -Way User. If the
parities cannot agree on an arbitrator, the matter must be resolved by a three-
person arbitration panel made up of one arbitrator selected by the City, one
arbitrator selected by the Right -of -Way User and one selected by the other
two arbitrators. The costs and fees of single arbitrator shall be borne
equally by the City and Right -of -Way User. In the event there is a third
arbitrator, each party shall bear the expense of its own arbitrator and shall
jointly and equally bear with the other party the expense of the third
arbitrator and of the arbitration.
Sec. 1.31. Reservation of Regulatory and Police Powers.
A Permittee's or Registrant's rights are subject to the regulatory and police powers
of the City to adopt and enforce general ordinances necessary to protect the health,
safety and welfare of the public.
Sec. 1.32. Severability.
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If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is
for any reason held invalid or unconstitutional by any court or administrative
agency of competent jurisdiction, such portion shall be deemed a separate, distinct,
and independent provision and such holding shall not affect the validity of the
remaining portions thereof. If a regulatory body or a court of competent
jurisdiction should determine by a final, non -appealable order that any permit,
right or registration issued under this Ordinance or any portions of this Ordinance
is illegal or unenforceable, then any such permit, right or registration granted or
deemed to exist hereunder shall be considered as a revocable permit with a mutual
right in either party to terminate without cause upon giving sixty (60) days written
notice to the other. The requirements and conditions of such a revocable permit
shall be the same requirements and conditions as set forth in the permit, right or
registration, respectively, except for conditions relating to the term of the permit
and the right of termination. Nothing in this Ordinance precludes the City from
requiring a franchise agreement with the Applicant, as allowed by law, in addition
to requirements set forth herein.
ADOPTED this.1 3TH day of Atiril , 1998 by the City Council of the
City of Otsego.
IN FAVOR: Larry Fournier, Mayor, Council Members Vern Heidner, Suzanne Ackerman,
Virginia Wendel and Mark Beraing
OPPOSED: No One
' � 'RMNElamie Beatty, Clerk,
CITY OF OTSEGO
24
any F ler, Mayor
City of Otsego
State of Minnesota
County of Wright
SUMMARY OF ORDINANCE TO REGULATE THE
PUBLIC RIGHT OF WAY IN THE PUBLIC INTEREST,
AND TO PROVIDE FOR THE ISSUANCE AND ADMINISTRATION OF
RIGHT-OF-WAY PERMITS
The following is a summary of Ordinance Number 98-2 , City of Otsego, County
of Wright, State of Minnesota. A complete copy of the ordinance is available for
inspection at the Otsego City Hall during normal business hours. The purpose of
this ordinance is to regulate, manage and control the use public Right -of -Ways
within the City of Otsego, including the establishment of permit requirements and
fees, location and relocation of equipment and facilities within public Right -of -
Ways, the administration and maintenance of public Right -of -Ways and
establishing penalties for ordinance violations .
The primary objective of this ordinance is to protect the public's interest in its
Right -of Ways. The Otsego City Council finds that regulation, maintenance and
administration of public Right -of -Ways, as set forth in the ordinance, is in the best
interests of the health, safety and welfare of Otsego's citizens.
The ordinance specifically applies to and regulates those, such as utility and
telecommunications companies, seeking to use or occupy a public Right -of -Way
by placing or locating equipment of facilities, such as underground cable, in the
public Right -of -Way. The ordinance requires those responsible for installation
and maintenance of equipment and facilities with the public Right -of -Way to
register with the City. This registration must occur prior to construction,
installation, repair or relocation of equipment or facilities within a public Right -of
Way. The ordinance requires registrants to provide and report certain specified
information.
The ordinance provides for obstruction and excavation permits and sets forth the
conditions under which such permits are required. Also, the ordinance indicates
circumstances under which permits will be issued and provides for possible permit
extensions when necessary. The ordinance establishes permit fees. The ordinance
requires that public Right -of -Ways be restored, at a Permittee's expense, after
complete of work. The City is given the right to conduct restoration, should
Permittee fail to do so, and to bill the Permittee for the costs associated therewith.
The ordinance requires registrants to provide "mapping" data on equipment or
facilities located within the public Right -of -Way. Mapping data is collected to
allow the City to know where beneath a public Right -of -Way equipment and
facilities are located. The City may specify "corridors" for future location of
equipment of facilities.
Finally, the ordinance specifies penalties for violations and provides limited
liability and indemnity to the City.
This ordinance summary is adopted this 13t1hof April 1998.
In favor: Mayor Larry Fournier, CouncilMembers, Vern Heidner, Suzanne Ackerman,
Virginia Wendel and MArk Berning
Opposed: No one
City of Otsego
any
1�*er, Mayor
Attest:
Posted: 4/14/98 - oe�o Posting Boards
Published: 4/22/98 - !EkRiver Star NEtas