HomeMy WebLinkAbout05/15/2000 TENTATIVE AGENDA
CITY OF SHAKOPEE
ADJ.REG.SESSION SHAKOPEE, MINNESOTA MAY15, 2000
LOCATION: 129 Holmes Street South
Mayor Jon Brekke presiding
1] Roll Call at 5:00 p.m.
2] Approval of Agenda
3] 5:00—Meeting with Murphy's Landing Board of Directors
A. Discussion of proposed lease permitting construction of Outdoor Heritage
Education Center Building on Murphy's Landing/City property.
4] 6:00—Meeting with Shakopee Public Utilities Commissioners
A. Franchise Fee Update (McNeill)
B. Water Discussion(SPUC Staff/Leek)
C. Planning Coordination(to meet growth needs) (SPUC Staff/Loney/Leek)
D. Right-of-Way Ordinance (Loney)
E. General Relationship/Interaction
5] Other business
6] Adjourn to Tuesday, May 16, 2000, at 7:00 p.m.
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CITY OF SHAKOPEE
Memorandum
TO: Mayor and City Council
FROM: Mark McNeill, City Administrator
SUBJECT: Murphy's Landing- OHEC
DATE: May 12,2000
INTRODUCTION:
At its joint meeting on Monday,the City Council and Murphy's Landing Board of
Directors will be asked to discuss a lease which would allow the Outdoor Heritage
Education Center(OHEC)to construct a museum/education center on Murphy's Landing
(City)property.
BACKGROUND:
For the past several months, Shakopee resident Mark LaBarbera has been working with
Murphy's Landing and the City to secure an agreement for a site to construct a building
for OHEC. Because the site would be on land leased by Murphy's Landing from the
City,all three parties would need to be involved with a lease.
Previously,the Murphy's Landing Board of Directors has given tentative approval to
that,but listed several conditions. Those conditions have been incorporated into the
attached lease,which was drafted by an attorney working with Mr. LaBarbera. The City
Attorney received this Friday,May 12,2000, and thus has not had an opportunity to
review it fully. It is expected that any comments that he has will be provided at the joint
meeting on May 15th.
A summary of the terms and conditions will be presented at the joint meeting.
DISCUSSION:
The major issue for the City Council to resolve is whether it is comfortable with having a
third party(a non-profit, in this case)unity be allowed to construct a building on City
owned party. While if OHEC would cease to exist, and the building goes back to the
City,there still is an overall question as to whether the City should be allowing use of
public property for this purpose. A previous case in point was when a location was being
sought for the Boy Scout Barn,which had to be moved from the Woman's Correctional
property. At that time,the decision was made not to offer a site.
RECOMMENDATION:
It is up to the Council as to whether they see this as something they wish to do.
Comments from the City Attorney should be reviewed before making a decision.
ACTION REQUIRED:
The Council should discuss, and, depending upon the decision made, either defer this to
the next Council meeting for approval, or indicate to OHEC that it is not interested in
proceeding.
litkatt-'011)//
Mark McNeill
City Administrator
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LEASE
This Lease(the "Lease") is entered into and effective as of the first day of June,2000,by
and between City of Shakopee ("Landlord") and Outdoor Heritage Education Center, Inc.
("Tenant").
RECITALS
Landlord is the lessee of certain real property located in Scott County, Minnesota legally
described on Exhibit A and depicted on Exhibit B attached hereto and made a part hereof(the
"Premises").
NOW, THEREFORE, in consideration of the mutual agreements set forth in this Lease,
and for other good and valuable consideration, the receipt, sufficiency and fairness of which are
hereby expressly acknowledged,Landlord and Tenant agree as follows:
1. Lease of Premises. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord the Premises for the rent hereinafter provided and subject to the terms and
conditions of this Lease.
2. Term
(a) Initial Term. The initial term of this Lease (the "Initial Term") shall
commence on June 1, 2000 (the "Commencement Date") and shall terminate on May
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31, 2050 (the "Termination Date").
(b) First Option to Renew. Provided that Tenant is not in material default
under the terms and conditions of this Lease, Tenant shall have the right and option to
renew and extend the term of this Lease for one (1) additional period of fifty (50) years
(the First Renewal Term"). In the event Tenant elects to exercise its option for the First
Renewal Term, it shall do so by giving Landlord written notice to that effect at least
twelve (12) months, but not greater than twenty-four (24) months, prior to the expiration
of the Initial Term. The First Renewal Term shall commence upon the expiration of the
Initial Term. In the event Tenant elects to exercise its option for said Renewal Term, said
renewal term shall be upon the same terms and conditions as set forth herein with respect
to the Initial Term.
3. Base Rent. In consideration for the subleasing of the Premises to Tenant, Tenant
shall pay to Landlord annually in advance until the expiration of the term of this Lease,without
notice or demand, Base Rent(the "Base Rent")in the amount of One and No/100 Dollars
($1.00)per year. All payments shall be made to Landlord at the address required for notices as
set forth in this Lease, or at such other address as Landlord shall from time to time designate.
4. Use. Tenant shall use the Premises for the purpose of conducting an education
center with office space to sublet and a museum and conservation non-profit organization.
Tenant also may use the Premises for general entertainment, dining,parking and recreational
facilities, or for any other lawful uses. Tenant shall not do or suffer anything to be done upon the
Premises which shall cause an injury to the Premises, or violate any insurance requirement or
any zoning, building,health, safety,environmental or other code or law,regulation or ordinance
of any federal, state or local unit of government or agency(hereinafter called "Laws")which
has jurisdiction over the Premises, and Tenant shall hold Landlord harmless against any and all
costs, expenses, losses or damages incurred or suffered by,or imposed on Landlord as a result of
any use of the Premises by Tenant in violation of any insurance requirement or Laws.
5. Delivery and Condition of Premises. The parties acknowledge that Tenant is in
possession of the Premises as of the Commencement Date. Landlord warrants that Premises do
not violate any insurance requirement or Laws and Landlord holds Tenant harmless against any
and all costs, expenses, losses or damages incurred or suffered by, or imposed on Tenant as a
result of such violations,whether known or unknown at the time of delivery of Premises. Except
as provided above and elsewhere in this Lease, Tenant shall accept the Premises "AS IS".
Tenant agrees to accept them in their present condition,based on Tenant's own inspection and
judgment.
6. Title to Improvements.
(a) Tenant shall have the right to construct improvements located on the
Premises. Tenant shall have the right to bring onto the Premises improvements relocated
from locations not included within the Premises. All improvements constructed on or
brought onto the Premises by Tenant shall be owned by Tenant.
(b) Before construction of the Tenant's main building may begin, Tenant
must: i) secure one million dollars($1,000,000)in cash and/or documented
commitments within one (1)year of signing this Lease; ii) secure all cash and/or
documented commitments necessary for the completion of the building; and iii) secure all
cash and/or commitments necessary for basic operation of the empty building for a three
(3)year period.
(c) Tenant agrees to work with Landlord and Minnesota Valley Restoration
Project, Inc., d/b/a Murphy's Landing("Murphy's")and must receive Murphy's approval
to ensure i)exterior design, location and material for the building and signage; and; ii) all
other tenants of the building, are compatible with current uses of the property or stated
mission of Tenant. Tenant must submit plans to Murphy's Executive Director. Plans will
be deemed approved unless Murphy's notifies Tenant within ten(10)business days of its
reasons for both i)disapproval and ii) suggestions for changes that would make plans
acceptable.
(d) Tenant acknowledges Lease of the land for construction of the building
does not automatically allow access to other land areas at Murphy's.
(e) Tenant may not use the name of Murphy's for fund-raising or other
purposes detrimental to Murphy's except by written agreement. (For maps or directions,
Tenant may use Murphy's name.)
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(f) Tenant agrees to provide a non-voting position on Tenant's Board of
Directors for Murphy's designated representative if Murphy's provides a voting or non-
voting position on Murphy's Board of Directors for Tenant's designated representative.
(g) Tenant agrees Murphy's may review or audit Tenant's books during
normal business hours on Tenant's Premises and without interfering with conduct of
Tenant's business,provided Murphy's auditors sign a confidentiality agreement with
Tenant to protect Tenant's proprietary information.
(h) Tenant agrees to provide to Murphy's for as long as it actively operates a
living history site open to the public and immediately adjacent to Premises; i)three(3)
free years of rent for 500 sq. ft. in Tenant's building; ii) six(6) additional years of rent on
that 500 sq. ft. at half the rent of the highest per sq. ft. rent of other tenants; iii) free use of
classrooms,theater, Board/Conference and multi-purpose rooms provided such use does
not conflict with priority use by Tenant and its sublessees; and iv) shared use of Tenant's
ticket booth space.
(i) Tenant agrees to share expenses when jointly agreed by Murphy's and
Tenants for designing and printing combination admission tickets,joint-marketing
efforts, certain advertising, and environmental education programming.
(j) Tenant agrees to pay two percent(2%)commission on profit from Tenant
gift shop and concessions. Tenant's commission and share of any expenses owed
Murphy's will be reduced by any amounts Murphy's receives from granters and other
sources attributable to Tenant, and allowing amounts in excess of expenses to be carried
forward as a credit against future years' expenses.
(k) Tenant agrees to provide four(4) linear feet of shelf-space free in Tenant's
gift shop for Murphy's branded items if Murphy's provides equal space in its gift shop for
Tenant's branded items. Both parties will establish accounting and reporting.
(1) Upon the expiration of the term of this Lease or any extension or renewal
thereof, or upon sooner termination of this Lease, Tenant shall have the right but not the
obligation to remove all improvements constructed on the Premises by Tenant or brought
onto the Premises by Tenant. Tenant shall have no obligation to remove or cause or pay
for the removal from the Premises of any improvements existing on the Premises prior to
the commencement of the Lease. Tenant shall not have any obligation to restore the
Premises to the condition which existed prior to construction of such improvements.
7. Inspection of Premises. Landlord and its representatives may enter the Premises
after giving Tenant forty-eight(48)hours prior written notice in order to inspect, examine, or
protect the Premises, for sale of Landlord's reversion, or for mortgage financing of Landlord's
reversion. In cases of emergency, Landlord may enter upon the Premises without delivering to
Tenant prior written notice,however Landlord shall use reasonable efforts to contact Tenant in
the event of such emergency.
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8. Condemnation.
(a) Substantial Taking. If, by an exercise of the right of eminent domain or by
conveyance made in response to the threat thereof(in either case, a"Taking"), all of the Premises
are taken, or if so much of the Premises are taken that the Premises cannot be used by Tenant for
the purposes for which they were used immediately before the Taking,this Lease will end on the
earlier of the vesting of title to the Premises in the condemning authority, or the taking of
possession of the Premises by the condemning authority(in either case the "Date of Taking").
Landlord and Tenant shall then divide the net award on account of the Taking(i.e.,the total
award less costs of obtaining the award, including attorney's and appraiser's fees)based on their
respective interests in the Premises and the improvements located thereon, as determined by
agreement or by any court of competent jurisdiction.
(b) Partial Taking. If,after a Taking,the then remaining portion of the Premises can
be used for substantially the same purposes for which they were used immediately before the
Taking,this Lease shall remain in effect.
(c) Tenant's Award. In connection with any Taking subject to this Section, Tenant
may prosecute its own claim by separate proceedings against the condemning authority for
additional damages legally due to it. The termination provisions of this Lease shall in no way
limit the damages Tenant may claim for any taking.
9. Insurance and Casualty.
(a) Tenant will maintain the following insurance on the Premises throughout the
Initial Term, and any extension thereof, which insurance shall be written by companies legally
qualified to issue such insurance:
(i) Property insurance on all improvements located on the Premises for the
replacement value of such improvements to insure against such risks as
shall be insurable against under present or future forms of"All Risk" or
"Special Form" property insurance policies which are standard for use in
the State of Minnesota; and
(ii) Floor insurance on all improvements located on the Premises if located
within a Federally designated floodplain; and
(iii) Commercial liability insurance to insure against claims for bodily injury,
death,personal injury or property damage occurring on, in or about the
Premises in the amount not less than$1 million for a single occurrence.
Notwithstanding the foregoing, in the event that the limitation of
Landlord's liability established by Minnesota Statutes exceeds the policy
amounts set forth in the immediately preceding sentence, Tenant shall
maintain the required commercial liability insurance in an amount not less
than such statutory limits. Such coverage may consist of primary and
excess coverage and shall be noncontributing with any insurance that may
be carried by Landlord. Such policy shall name Landlord as an additional
insured; and
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(iv) Workers' compensation insurance to the extent required by the laws of
Minnesota.
(b) Every policy referred to in this Section shall provide that it will not be canceled,
modified or amended except after 30 days'written notice to Landlord and that it shall not be
invalidated by any act or negligence of LandlorkTenant,or any person or entity having an
interest in the Premises,nor by occupancy or use of the Premises for purposes more hazardous
than permitted by such policy,nor by any foreclosure or other proceedings relating to the
Premises, nor by change in title to or ownership of the Premises and may include a waiver by the
insurer of all rights of subrogation against any named insured.
(c) Tenant shall deliver to Landlord originals of the applicable insurance policies or
original or duplicate certificates of insurance or temporary binders in appropriate instances, all
satisfactory to Landlord, evidencing the existenceof all insurance which is required to be
maintained by Tenant hereunder, such delivery to be made(i)upon the execution and delivery
hereof, and(ii) at least ten(10) days prior to the expiration or cancellation of any such insurance.
(d) At the election of Tenant, during the Initial Term of this Lease, all policies of
casualty insurance which Tenant is obligated to maintain pursuant to Section 13(a)(i) of this
Lease shall name only Tenant and its lender as loss co-payees. During the First Renewal Term,
if the option for such period is exercised, at the election of Landlord, all policies of casualty
insurance which Tenant is obligated to maintain pursuant to Section 13(a)(i)of this Lease shall
name Tenant and its lender as loss co-payee.
(e) Landlord and Tenant hereby waive all rights to recover against each other or
against the directors, officers, employees, agents,customers, invitees or business visitors of each
other, but only to the extent of insurance proceeds actually received by them for any loss or
damage arising from any cause covered by any insurance required to be maintained pursuant to
this Section or by any other insurance actually carried by them. Landlord and Tenant shall cause
their respective insurers to issue appropriate waiver of subrogation rights endorsements to all
policies of insurance carried in connection with the Premises or any improvements or personal
property located thereon.
(f) Except for the negligent or intentional acts of Landlord,its agents, employees, or
mortgagee, if any, Tenant shall indemnify, save harmless and, at Landlord's option, defend
Landlord, its agents, employees and mortgagee, if any,from and against any and all liability,
liens, claims, demands, damages, expenses, fees(including reasonable attorneys' fees)costs,
fines,penalties, suites,proceedings, actions and causes of action of any and every kind and
nature arising or growing out of or in any way connected with Tenant's use, occupancy,
management or control of the Premise.
(g) Except for the negligent or intentional acts of Tenant, its agents,employees, or
mortgagee, if any, Landlord shall indemnify, save harmless and, at Tenant's option, defend
Tenant, its agents,employees and mortgagee, if any, from and against any and all liability, liens,
claims, demands, damages, expenses, fees(including reasonable attorneys' fees)costs, fines,
penalties, suits,proceedings, actions and causes of action of any and every kind and nature
arising or growing out of or in any way connected with Landlord's use,occupancy,management
or control of the Premises.
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10. Maintenance. Tenant shall, at its own cost and expense, maintain and keep the
Premises in good repair and in a clean and orderly condition. Except as provided elsewhere in
this Lease,Landlord shall not be required to maintain or repair the Premises or any
improvements located thereon which are used by Tenant in connection with the Premises.
11. Right to Cure Defaults: Indemnity_. If Tenant shall fail to keep or perform any
of its obligations under this Lease relating to the Premises, Landlord may, at its option, after
thirty(30)days written notice to Tenant, cure any such default, and all costs and expenses
incurred by Landlord in connection therewith shall be due and payable by Tenant to Landlord
following notice thereof, and if any such amount is not paid within thirty(30)days after delivery
of written request therefor by Landlord, Tenant hereby agrees to pay interest at the rate of eight
percent(8%)per annum on such amount from the date of Landlord's request for payment until
Landlord actually receives such payment. Tenant hereby agrees to indemnify and hold harmless
Landlord from any loss,costs, damage or expenses including without limitation, attorney's fees,
incurred or paid by Landlord on account of any default or failure of performance by Tenant
under this Lease, or on account of any liability relating in any way to Tenant's use or occupancy
of the Premises.
Landlord agrees to keep and perform any and all of its obligations under this Lease. If
Landlord shall fail to keep or perform any of its obligations under this Lease, Tenant may, at its
option, cure any such default, and all costs and expenses incurred by Tenant in connection
therewith, including reasonable attorney fees and expenses, shall be immediately due and
payable by Landlord to Tenant, and if any such amount is not paid within thirty(30)days after
delivery of written request therefor by Tenant,Landlord hereby agrees to pay interest at the rate
of twelve percent(12%)per annum on such amount from the date of Tenant's request for
payment until Tenant actually receives such payment. Landlord hereby agrees to indemnify and
hold harmless Tenant from any loss, costs,damage or expenses including without limitation,
attorneys fees, incurred or paid by Tenant on account of any default or failure of performance by
Landlord under this Lease.
12. Assignment or Subletting. Tenant shall not assign this Lease or Lease all or a
portion of the Premises to any other party without the prior written consent of Landlord,which
consent will not be unreasonably withheld if the assignee or sublessee has a reasonably good
reputation, is reasonably experienced and is in a reasonably sound financial position.
Notwithstanding any assignment or subletting, Tenant shall not be relieved of its obligations
hereunder, and a consent by Landlord to one assignment or subletting shall not constitute a
waiver of the provisions of this section or a consent to any other assignment or subletting.
Notwithstanding any provision of this Lease to the contrary, Tenant shall have the right to
license or sublease all or a portion of the Premises for any purpose reasonably acceptable to
Tenant, and shall have the further right to sublease a portion of the office space and apartment
space located on the Premises, all without the prior consent of Landlord.
13. Alterations. Tenant shall have the right to make alterations to the improvements
located on the Premises,where the cost of such alterations is less than$50,000.00,without the
consent of Landlord. Where the cost of alterations to the improvements located on the Premises
is equal to or greater than$50,000.00, Tenant shall not make such alterations without the consent
of Landlord,which shall not be unreasonably withheld. All alterations and improvements made
to the Premises by Tenant shall belong to Tenant and shall remain upon the Premises upon
expiration of the term of this Lease or any extensionor renewal thereof.
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14. Waiver of Subrogation. Landlord waives its right of subrogation for damage to
the improvements located on the Premises, contents therein, loss of use thereof, and/or loss of int
of the insurance proceeds collected; and Tenant waives its right of subrogation for damage to
property in the Premises, loss of use thereof, loss of income and accounts receivable. Landlord
and Tenant agree to notify their respective insurance companies, in writing, of the provisions of
this paragraph, and in the event either party cannot waive its subrogation rights, such party shall
notify immediately the other party of the fact, in writing, so that the other party can consider
obtaining necessary insurance coverage to insure against possible subrogation actions by the
other party's insurance carrier.
15. Damage by Fire or other Casualty.
(a) During the Initial Term of this Lease or any extension or renewal thereof,
ina event anydamage or destruction to the improvements located on
the
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Premises destroys in excess of fifty percent (50%) of the replacement cost of the
improvements and all fixtures, furniture, equipment and person property located
on or used in connection with the Premises, then Tenant may elect to terminate
the Lease as of the date of such casualty by giving Landlord thirty (30) days
written notice, which thirty days shall be measured from the date on which the
event of damage or destruction occurred.
(b) In the event Tenant terminates the Lease pursuant to this Section as a
result of an event of destruction, Tenant shall have no obligation to restore the
Premises to the condition which existed prior to the commencement of the Lease,
nor shall Tenant have any obligations to pay the cost of such restoration.
(c) During the Initial Term of the Lease or any extension or renewal thereof,
in the event any damage or destruction to the improvements located on the
Premises destroys less than or equal to fifty percent(50%) of the replacement cost
of such improvements and all fixtures, furniture, equipment and all personal
property located on or used in connection with the Premises, then within a
reasonable period of time following such destruction Tenant shall repair and
restore the Premises and all fixtures, furniture, equipment and all personal
property located therein. All insurance proceeds paid pursuant to the policy of
insurance required by Section 13(a)(i) of this Lease shall be applied to the cost of
such restoration.
16. Mechanics Liens. Tenant shall pay timely for labor and material furnished to
Tenant in connection with work of any character performed on the Premises, at the direction or
with the actual consent of Tenant. Tenant shall not permit any mechanics or similar liens to
remain upon the Premises incident to the foregoing. However, Tenant may contest the validity
of such lien or claims, provided, Tenant shall provide reasonable security to insure payment and
to prevent any sale, foreclosure or forfeiture of the Premises by reason of such non-payment, if
required by Landlord. Upon a final determination of the validity of any such lien or claim,
Tenant shall immediately pay any judgment orr decree rendered against Tenant or Landlord,
including, but not limited to, all proper costs and charges, and shall cause such lien to be released
of record without costs to Landlord. Tenant shall provide Landlord with copies of all notices of
liens Tenant actually receives, and shall provide Landlord with information regarding any lien of
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which Tenant has reasonable knowledge to the;.best of its information and belief and without
further investigation.
17. Tenant's Equipment and Personal Property. Tenant at its sole cost and
expense, shall provide certain furniture, trade fixtures and/or trade equipment necessary for
Tenant's use and occupancy of the Premises. Such furniture, movable trade fixtures and/or
movable trade equipment, and replacements thereof or additions thereto, as well as movable
personal property shall be and remain the property of Tenant. At Tenant's sole cost and expense,
all of the property shall be removed on or before the last day of the term hereof or any extensions
or renewals thereof, or upon the earlier termination of the term. If Tenant chooses not to remove
its property, such property shall be deemed abandoned and shall become the property of
Landlord.
18. Signs. Tenant may provide and install, at its expense, during the full term of this
Lease, and any extension or renewal thereof, a sign or signs the form of which shall conform to
any and all governmental rules, regulations, codes, ordinances, laws with respect to same. The
cost of installing, maintaining, changing and removing all signs shall be borne by Tenant, and all
signs shall be maintained in such a manner so as to be slightly and in good condition and repair.
Exterior signage is subject to approval of Murphy's. Requests will be deemed approved if
Murphy's fails to respond within ten (10) business days to Tenant's request for exterior signage
approval.
19. Taxes and Assessments. In the event real estate taxes become due and payable
with respect to the Premises, Tenant shall pay at least fifteen (15) days before they become due,
and before any fine,penalty, interest or costs may be added thereto:
(a) all taxes, license fees, assessments, levies, and all other governmental charges,
general and special, ordinary and extraordinary, foreseen and unforeseen, whether or not now
customary or within the contemplation of Landlord and Tenant, which are at any time during the
duration of this Lease, imposed or levied upon, reasonably attributable to, or assessed against (i)
the Premises, (ii) any Base Rent or other sums payable hereunder, (iii)this Lease or the leasehold
estate hereby created, (iv) the operation, possession or use of the Premises, (v) the cost or value
of any equipment, furniture, fixtures and other personal property located in or upon the Premises,
or the cost or value of any leasehold improvements made in or to the Premises by or for Tenant,
and (vi) the possession, leasing, operation, management, maintenance, alteration, repair, use or
occupancy by Tenant of the Premises or any portion thereof; and
(b) all sales, value added, ad valorem, use and similar taxes at any time levied, assessed
or payable on account of the acquisition, ownership, leasing, operation, possession or use of the
Premises by Tenant.
All real estate taxes assessed for the last year of the term hereof, but payable after the expiration
or other termination of the term hereof, if any, shall be adjusted and prorated so that the Landlord
shall pay its prorated share for the periods preceding and following the term hereof, and Tenant
shall pay its prorated share for the Initial Term.
Tenant shall not be required to pay any franchise, estate, inheritance, transfer, income or
similar tax of Landlord unless such tax is imposed, levied or assessed in substitution for any
other tax, assessment, charge or levy which Tenant is required to pay such assessment in this
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section. If anyassessment maylegally bepaid in installments, Tenant maypaysuch assessment
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in installments; in such event, Tenant shall be liable only for installments which become due and
payable during the Initial Term and extension thereof.
20. Consent to Leasehold Mortgage. Notwithstanding anything in this Lease to the
contrary, Tenant shall have the absolute right, without Landlord's consent, to mortgage this
Lease and Tenant's leasehold interest by one or more Leasehold Mortgages, provided, however,
that no such mortgages shall extend to or affect Landlord's reversionary interest and the estate of
Landlord in and to the Premises. Landlord consents to any exercise of remedies by any
leasehold mortgagee, including acceptance of an assignment, deed or other conveyance in lieu of
foreclosure.
21. Quiet Enjoyment. Landlord warrants that it has the right to lease the Premises
and that so long as Tenant shall substantially perform each and every material term, condition
and covenant to be performed and observed by Tenant hereunder or under any mortgage entered
into by Tenant, Tenant shall have peaceful and quiet use and possession of the Premises, without
hindrance on the part of Landlord, and Landlord shall defend Tenant in such peaceful and quiet
use and possession under Landlord.
22. Short Form Lease. Tenant shall not record this Lease without the written
consent of Landlord; however, the parties shall join in the execution of a memorandum or so-
called "short-form" of this Lease in the form attached hereto as Exhibit C for the purposes of
recordation. Tenant shall record the memorandum or so-called short-form of this Lease and shall
pay the fees required to be paid in order to record such short-form lease.
23. Utilities and Services. Tenant shall pay, as they become due and payable and
before they become delinquent, all charges for electricity, heat, air conditioning, gas, fuel,
telephone and any other utility service furnished to the Premises during the term of this Lease or
any renewal or extension thereof. Landlord shall,cause to: (a) grade, maintain, repair and plow
the snow from all streets located within the Premises; (b) maintain a working sanitary sewer lift
station for sewage generated by buildings, residences and bathrooms located on the Premises; (c)
provide, maintain and repair a working well for drinking water; (d) provide an electrical
transformer and utility lines to all buildings located on the Premises to be served with electricity;
(e) periodically mow all grassy areas; and (f)pay Tenant's storm sewer utility fund bills. Tenant
shall pay the cost of all utilities, except for sanitary sewer, storm sewer and water, the cost of
which shall be paid by Landlord.
24. Default.
(a) Events of Default. The following events are Defaults under this Lease:
(i) The failure of Tenant to pay in full, within five days after the date the same
becomes due, any rent payable to Landlord hereunder;
(ii) The failure of Tenant to pay in full, within five days after the date the same
becomes due, any other sums payable by Tenant hereunder either to Landlord or
to others or the failure of Tenant to pay when due any sums of money payable to
any leasehold mortgagee of Tenant;
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(iii) The failure of Tenant to comply in a timely manner with any requirement or
obligation under the provisions of this Lease;
(iv) The vacancy or desertion of the Premises by Tenant for a period of more than
thirty days, unless such vacancy is the result of a fire, windstorm or other
casualty, and the Tenant commences restoration of its improvements on the
Premises within such thirty day period and thereafter proceeds diligently to
restore the improvements on said Premises as soon as practicable;
(v) The filing of a petition in bankruptcy or for the reorganization of all or a portion
of Tenant's property (either by Tenant or by a third party in an involuntary
proceeding) and the same is not removed, released or discharged within sixty (60)
days following the initial filing;
(vi) Substantial change of Tenant's mission either in policy or in fact;
(vii) Tenant ceases to function;
(viii) Tenant fails to complete the building within three(3)years of sign Lease.
(b) Notice: Opportunity to Cure. Upon the occurrence of any Default in the
payment of any rent or other money payable to Landlord hereunder, if Tenant fails to cure such
Default within thirty (3) days after Landlord gives Tenant written notice thereof, such uncured
Default in the payment of rent or other money payable to Landlord hereunder shall become an
Event of Default. Upon the occurrence of any other Default, if Tenant fails to cure such other
Default or Defaults within thirty (3) days after Landlord gives Tenant written notice thereof,
such other uncured Default or Defaults shall become an Event of Default; except that if any such
other Default is of a character that requires additional time to be cured, such other Default shall
not become an Event of Default if Tenant diligently commences in good faith to cure such other
Default upon receipt of the notice specifying the nature of such other Default and Tenant
thereafter continuously and diligently attempts to cure such other default.
(c) Remedies. If an Event of default shall have occurred, Landlord shall have the
right to take any or all of the following actions.
(i) Give Tenant written notice of Landlord's termination of this Lease. Upon the
giving of such notice, the Lease term and the estate hereby granted shall expire
and terminate on such date as fully and completely and with the same effect as if
such date were the date herein fixed for the expiration of the Lease term, all rights
of Tenant hereunder shall expire and terminate;
(ii) The Landlord may, without terminating this Lease, reenter or repossess the
Premises, by force, unlawful entry and detainer proceedings or otherwise, and
dispossess and remove Tenant or other occupants therefrom, and may relet all or
part of the Premises as Tenant's agent, and Tenant shall pay Landlord the
difference between the rent due for the remaining term at the time of reentry or
repossession and any amount received or to be received under such reletting for
the remaining term;
10
(iii) In addition to any other legal remedy, Landlord may enter on and into the
Premises and cure any then uncured Event of Default at the expense and for the
account of Tenant. Any expenses, liabilities, penalties, or other damages of any
kind incurred by Landlord in such action, including "reasonable attorneys" fees,
shall be immediately due and payable by Tenant to Landlord as rent due
hereunder, or
(iv) Landlord may obtain any manner of equitable relief in order to compel Tenant to
observe and perform its obligations hereunder;
(v) Any other remedy permissible at law or at equity.
(d) Termination. Upon the termination of this Lease by Landlord, all rights of
Tenant, and all persons claiming by, through, or under Tenant, whether by assignment,
mortgage, Lease, or other conveyance or encumbrance (except with respect to those persons with
whom Landlord has agreed otherwise in writing) shall be terminated and extinguished.
25. Estoppel Certificates. INTENTIONALLY OMITTED
26. Tenant's Termination Right. Tenant may terminate this Lease upon delivering
to Landlord thirty (3) day prior written notice.
27. Miscellaneous Terms:
(a) Time. Time is of the essence of this Lease with respect to the due performance of
the terms, covenants and conditions herein contained, and all provisions herein relating thereto
shall be strictly construed.
(b) Full Agreement. The parties acknowledge that this Lease embodies the full and
complete agreement and understanding between the parties. This Lease supersedes and replaces
any prior agreements and understandings between the parties, either oral or written.
(c) Amendments and Modifications. None of the covenants, terms or conditions of
this Lease, to be kept and performed by either party, shall in any manner be altered, waived,
modified, changed or abandoned except by a written instrument, duly signed and delivered by
both parties.
(d) Governing Law. This Lease shall be construed for all purposes in accordance
with and governed by the laws of the State of Minnesota, without giving effect to its conflict of
law rules.
(e) Headings. The marginal or topical headings of the several articles, paragraphs
and clauses are for convenience only, and are not to be construed as part of this Lease and do not
define, limit or construe the contents of this Lease.
(f) Severability of Provisions. If any term or provision of this Lease or the
application thereof to any person or circumstance shall to any extent be invalid or unenforceable,
the remaining terms and provisions shall not be affected thereby, and each term and provision of
this Lease shall be valid and be enforced to the fullest extent permitted by law.
11
(g) Covenants Binding on Successors. All of the covenants, agreements,
conditions and undertakings contained in this Lease shall extend and inure to and be binding
upon the successors and assigns of the respective parties hereto,the same as if they were in every
case specifically named, and wherever in this Lease reference is made to either of the parties
hereto, it shall be held to include and apply to, wherever applicable,the successors and assigns of
such party.
(h) Attorneys' Fees and Expenses. If either party hereto shall commence any legal
action or proceeding against the other by reason of the alleged failure of the other party to
perform or keep any term, covenant or condition of this Lease by it to be performed or kept, the
party prevailing in said action or proceeding shall be entitled to recover from the non-prevailing
party, in addition to court costs, reasonable attorneys' fees and expenses to be fixed by the court.
(i) No Third Party Beneficiaries. There are no third-party beneficiaries to this
Lease, either express or implied. Nothing herein contained shall be construed to grant or confer
upon any person or persons, firm, corporation or governmental authority, other than the parties
hereto, their successors and assigns, any right, claim or privilege by virtue of any covenant,
agreement, condition or undertaking contained in this Lease.
(j) Acknowledgment. The parties hereto acknowledge and represent that they have
had the opportunity to be represented by legal counsel of their choosing in connection with their
consideration and execution of this Lease. The parties further represent and declare that in
executing this Lease, they have relied solely on their own judgment, belief and knowledge, and
that they have not been influenced to any extent by any representations or statements made by
the other party or their counsel, except those expressly stated in this Lease.
(k) Drafting of Agreement. This Lease is the product of negotiations between the
parties. As such, the Lease shall not be construed against one party or another merely because
one party drafted some part or all of this Lease.
(1) Counterparts. This Lease may be executed in any number of counterparts,
all of which will be considered one and the same Lease notwithstanding that all parties hereto
have not signed the same counterpart. Signatures on this Lease which are transmitted by
facsimile shall be valid for all purposes. Any party shall, however, delivery an original signature
on this Lease to the other party upon request.
(m) Waiver. No waiver by either party of any breach of any term, covenant or
condition hereof shall be deemed a waiver of the same or any subsequent breach of the same or
any other term, covenant or condition. No covenant, term or condition of this Lease shall be
deemed waived unless waived in writing.
(n) Relationship of Parties. Nothing contained herein shall be deemed or construed
by the parties hereto, or by any third party, as creating the relationship of principal and agent,
partnership, or joint venture, it being understood and agreed that no provision contained in this
Lease nor any acts of the parties hereto shall be deemed to create any relationship other than the
relationship of landlord and tenant.
12
(o) Force If eitherhereto shall be delayed or hindered in or
Majeure. party Y
prevented from the performance of any act required hereunder by reason of strikes, lockouts,
labor troubles, inability to procure material, failure of power, restrictive governmental laws or
regulations, riots, insurrection, war, acts of God or other deities, or other reason of a like nature
not the fault of the party delayed in performing work or doing acts required under this Lease,the
period for the performance of any such act shall be extended for a period equivalent to the period
of such delay.
(p) Notices. All notices to or demands upon a party desired or required to be given
under any of the provisions of this Lease shall be written and sent by registered or certified mail,
return receipt requested,postage pre-paid or by an express mail delivery service, addressed to the
person intended to be notified at the following address:
If to Landlord: City of Shakopee
129 S. Holmes Street
Shakopee,MN 55379
Attn: City Administrator
If to Tenant: Outdoor Heritage Education Center, Inc.
C/o Mark LaBarberg
137 Maxine Circle
Shakopee, MN 55379
Any person may, at any time, or from time to time, notify the other persons named herein in
writing of a substitute address for that above set forth, and thereafter notices shall be directed to
such substitute address. Notice given as aforesaid shall be sufficient service thereof and shall be
deemed given as of the date received, as evidenced by the return receipt of the registered or
certified mail, courier receipt, facsimile transmission report, or the express mail delivery receipt,
as the case may be. The effective date of any mailed notice shall be three (3) business days after
delivery of the same to the United States Postal Service and the effective date of any courier
service notice shall be as shown on the courier service's receipt, and the transmission date of the
facsimile.
(q) Number and Gender. The use herein of a singular term shall include the plural and use of
the masculine, feminine or neuter genders shall include all others.
(r) Consents and Approvals. Except when a different standard is specifically
provided in this Lease, whenever the consent or approval of a party is required under this Lease,
such consent or approval shall not be unreasonably withheld, conditioned or delayed. If any
provision of this Lease requires Landlord or Tenant to do anything to the satisfaction of the other
party, the party whose satisfaction must be obtained shall not unreasonably or arbitrarily refuse
to state its satisfaction which such action. If either party decides to deny such consent or
approval, or to withhold its statement of satisfaction with the other party's performance, it shall
simultaneously state its reasons for doing so. If either party shall request the other party's
consent, approval or statement of satisfaction with respect to any matter hereunder, the other
party's failure to reply to such request within ten days (after delivery to the other party of copies
of all necessary information and documents that are available and necessary or appropriate to
13
enable the other party to decide whether to grant such consent, approval or statement of
satisfaction)shall be deemed a consent, approval or statement of satisfaction, as the case may be.
(s) Authority. The parties hereto each hereby represent and warrant to each other
that all consents or approvals required of third parties(including, but not limited to, any Board of
Directors) for the execution, delivery and performance of this Lease have been obtained and that
each party has the right and authority to enter into and perform its covenants contained in this
Lease, and that this Lease is binding upon each party in accordance with its terms.
(t) Brokerage. Each party hereby warrants to the other that it has had no dealings
with any broker or agent in connection with this Lease. Each party covenants to pay, hold
harmless, indemnify and defend the other from and against any and all costs, expenses or
liability for any compensation, commissions and charges claimed by any broker or agent as a
result of dealings with it with respect to this Lease or the negotiation hereof.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
14
IN WITNESS WHEREOF, this Lease was executed effective on the date first above
written.
LANDLORD TENANT
City of Shakopee Outdoor Heritage Education Center,Inc.
By: By:
Jon Brekke Mark LaBarbera
Its: Mayor Its: President
By:
Mark McNeill
Its: City Administrator
By:
Judy Cox
Its: City Clerk
CONSULT YOUR ATTORNEY This document has been prepared for approval by your attorney. No representation or recommendation is
made by Broker as to the legal sufficiency,legal effect,or tax consequence of this document or the transaction to which it relates. These are
questions for your attorney and financial advisors.
15
EXHIBIT A
PREMISES LEGAL DESCRIPTION
MURPHY'S LANDING
PREPARED BY BOLTON&MENK, INC.
DECEMBER 5, 1997
The following part of the City property,which City property is described as follows,to-wit:
Government Lots 1 and 2, Section 32, Township 116 North, Range 22 West; that part of
Government Lots 1 and 2, the Northwest Quarter of the Northeast Quarter, and the Northwest
Quarter of the Northwest Quarter of Section 5, Township 115 North,Range 22 West, lying North
of the North line of State Trunk Highway #101, being Route #187, which said property to be
conveyed by this deed is more particularly described as follows, lying East of the following line:
Beginning at a point on the centerline of the West bound lane of Trunk Highway #101, distant
feet (as measured along the centerline of said line) East of the West line
of Section 5, Township 115, Range 22; thence North at right angles a distance of 202 feet; thence
deflecting to the West at an angle of 87° 48' a distance of 67.75 feet; thence deflecting to the
North at an angle of 23° 10' a distance of 251.4 feet;thence deflecting to the North at an angle of
23° 38' a distance of 403.1 feet; thence North a distance of 130 feet more or less to a point 30
feet North of the North bank of the Mill Creek; thence Easterly and parallel to said North bank to
the Minnesota River and
Excepting therefrom the following described tracts:
1. The Northeast Quarter of the Northeast Quarter of the Northeast Quarter, Section 5,
Township 115 North, Range 22 West, lying North of the North line of State Trunk
Highway#101,there terminating.
Subject to an easement to the DNR for a paved walking path to run the length of
Murphy's Landing, from Memorial Park to the grain terminal.
Subject to an access easement from CR 101 to the U.S. Fish and Wildlife Service
conservation easement and the Scott Soil & Water Conservation District easement North
and West of Murphy's Landing.
16
EXHIBIT B
PREMISES DEPICTION
17
EXHIBIT C
MEMORANDUM OF LEASE
18
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE is made effective as of , 2000,
between OUTDOOR HERITAGE EDUCATION CENTER, INC. ("Tenant") and the CITY OF
SHAKOPEE ("Landlord").
WITNESSETH:
For good and valuable consideration paid and to be paid by Tenant to Landlord, Landlord
has leased to Tenant, upon the terms and conditions more particularly set forth in a lease dated
June 1, 2000, (the "Lease") made between Landlord and Tenant, that certain premises described
on Exhibit A attached hereto (the "Premises").
The initial term of the Lease is fifty (50) years, commencing on June 1, 2000. Tenant
may, upon terms and conditions of the Lease, renew the term for one (1) successive period of
fifty(50)years, such period to commence at the expiration of the initial term.
This Memorandum of Lease is executed and is to be recorded and/or registered for the
purpose of giving notice of the Lease and is in no way intended to supersede or vary the terms or
conditions of the Lease. Nothing contained herein shall be construed to amend, modify, change,
alter, amplify, interpret or supersede any of the terms and provisions of the Lease, which shall in
all things control. Tenant shall upon expiration or earlier termination of the Lease execute and
acknowledge a written termination, in recordable form, of the Lease and this Memorandum of
Lease.
Additional information concerning the terms and provisions of the Lease may be obtained
by contacting Landlord or Tenant.
IN WITNESS WHEREOF, the parties have caused this Memorandum of Ground Lease
to be executed effective as of the date first appearing above.
19
IN WITNESS WHEREOF, this Lease was executed effective on the date first above
written.
LANDLORD TENANT
City of Shakopee Outdoor Heritage Education Center,Inc.
By: By:
Jon Brekke Mark LaBarbera
Its: Mayor Its: President
By:
Mark McNeill
Its: City Administrator
By:
Judy Cox
Its: City Clerk
CONSULT YOUR ATTORNEY This document has been prepared for approval by your attorney. No representation or recommendation is
made by Broker as to the legal sufficiency,legal effect,or tax consequence of this document or the transaction to which it relates. These are
questions for your attorney and financial advisors.
STATE OF MINNESOTA
COUNTY OF SCOTT
The foregoing instrument was acknowledged before me this day of , 2000,
by Jon Brekke,Mark McNeill,and Judy Cox,the mayor,city administrator, and city clerk,
respectively of the City of Shakopee,a Minnesota municipal corporation,on behalf of the
corporation.
Notary Public
STATE OF MINNESOTA
COUNTY OF SCOTT
The foregoing instrument was acknowledged before me this day of ,2000,
by Mark LaBarbera,president of Outdoor Heritage Education Center,Inc.,a Minnesota non-profit
corporation, on behalf of the corporation.
Notary Public
20
THIS INSTRUMENT WAS DRAFTED BY:
Maslon,Edelman,Borman& Brand
A limited liability partnership
• Suite 3300
90 South Seventh Street
Minneapolis, MN 55402
(612) 672-8200
(SAKaye)
21
EXHIBIT A
LEGAL DESCRIPTION
City needs to provide the legal description for 3 acres on Murphy's furthest east end, from River
to Highway 101.
22
HISTORIC
MURPHY'S LANDING
TM
Living History Village of the 1800s
PROGRAM PLAN 2000
•
2
Looking Ahead
Historic Murphy's Landing (HML) has the potential to be the premier educational complex for
experiencing the daily life of the people in Minnesota during the 19th Century, a Colonial
Williamsburg of the Midwest.
To accomplish this, HML needs to focus on the following:
• Recognition of HML as a unique regional historic and environmental facility
• An understandingthat all programs are based on creatinga "hands on" educational
P 9
experience
• Ability to showcase 19th Century artisans by providing a place for them to create, teach,
and sell their work
• Focusing tourist activities for specific groups i.e. age, interest, special or holiday events,
etc.
• Continuing to build a strong and varied outreach program
• Becoming a resource center for 19th Century life in the Midwest
• Continuing to collect, care for, and make appropriate use of 19th Century buildings and
artifacts
• Restoring and interpreting the natural environment of the Minnesota River valley as it was
in the 19th Century
• Creating an experience that entices visitors to want to come back and do more.
Current Assets
• Ideal location along the Minnesota River in the Twin Cities metro area
• Excellent collection of buildings and site layout
• Strong general program with special events
• Solid core of interpreters and volunteers
• Board of Directors with a great desire to make the site successful
• Financial framework becoming more stable
• Dedicated, experienced &capable staff at all levels
Historic Murphy's Landing - The Beginning
The conceptual plans for the MVRP (HML) were first formally stated in 1966 in the feasibility
study request outlined by Margaret MacFarlane for Ronald Nelson, historian in the
Department of Parks and Memorials in Illinois. The project was visualized as a chronological
assemblage of the 1840 — 1890 period in the lower Minnesota River Valley. The primary
purpose was established as educational, although the recreational use of such a facility was
apparent.
Nelson spent three weeks in the area at the time to ascertain if the primary material was still
available. Standards were also defined at this time to deep development within the limitations
of the purposes as originally conceived. The background study was made possible through
the generosity of the Stans Foundation. Personnel to initiate the program during its first year
was provided by the Wilkie Family foundation.
The "Green Book" followed in 1967. This was a 40 page booklet presenting the concepts and
aims of the Restoration Project. It also introduced the professional leadership that had helped
crystallize the MVRP (HML) standards. They included: Ronald Nelson, Historian for the
Department of Conservation, Parks and Memorials, State of Illinois: James Jones, Ecologist at
Macalester College, St. Paul; Alan and Nancy Woolworth, History and Archeology team, and
Malcolm MacFarlane, district curriculum coordinator k— 12 at Richfield Schools.
Formal statements of intent were enlarged into a master plan format in 1971 and updated in
1976. This study was done by John Lawrence of Scruggs and Hammond of Peoria, Illinois
because of the past experience of this landscape architect and his form in the field of historic
preservation. They had worked extensively with Nelson on other historic sites. They also
extended credit to the MVRP (HML) on the strength of the concept or the master plan would
not have been possible.
The necessities of modern day facilities and codes have been net as unobtrusively as
possible. The master plan includes many items that are geared to holding a true course in
regard to purpose, such a establishing the maximum number of people to be on site at any
one time not to exceed 1600 to prevent the adverse affects of human erosion, the rule of no
motorized vehicles on the site, no paved roads, the policy of strict control of garden plant
varieties and animal breed selections—all small but important pieces of the whole.
Taken from Murphy's Landing —3'i edition: 1966—1981
The following is an outline of a plan of action to be taken over the next 6 years(2000-2005) to help
HML reach its potential
Programs
Philosophy—Programs at HML will be creative, active, collaborative, learner centered activities that
connect participants with the history of their communities, produce real work, stress historical accuracy
and light the faces of the students and teachers.
HML programs will strive to have students become more active, thoughtful participants in their own
education. Our goal is to help them become increasingly able and willing to guide their own leaning and
to increase respect and understanding for the world they live in.
Core Practices
1. All HML programs must flow from student needs, interests and desires.
2. There,the role of teacher must be that of collaborator,team leader and guide rather than boss
3. The academic integrity and historical accuracy of the work must be absolutely clear
4. The work is characterized by student action, rather than passive receipt of processed information
5. A constant feature of the process is its emphasis on pre-teaching small group work and team
work.
6. Connections between HML activities, the student's classroom, and the modern world are clear.
7. There must be an opportunity for the students to showcase their learning
8. All activities should be part of a progressive program that evolves with age, skills and multiple
visits.
9. As teachers, we must acknowledge the worth of aesthetic experience, model that attitude in our
interactions with students, and resist the momentum of policies and practices that deprive students
of the chance to use their imagination.
10. Reflection—some conscious,thoughtful time to stand apart from the work itself—is an essential
activity that must take place at key points throughout the work.
11. The work must include honest, ongoing evaluation for skills, content and changes in student
attitude.
(Adapted from Hoosier Foxfire Teachers Network,Indiana State University)
Schools —(May, June, Sept, Oct,Nov, Dec—Monday—Friday)
"A Visit to Historic Murphy's Landing"
• 2 hours on site (LOAM or 12 noon Start)
• 25 students and 2 adults/ group
• Orientation— 15mn/ 3 sessions—35mn(2 demonstrations, 1 hands-on)
• Choice of programs—customized for grade level
• "First Settlers in the Minnesota Territory" (75— 100 students/2 hr visit)
Sites:Fairbault Cabin,Burger Cabin,Burger Barns,Nature Trail,Burial Mounds
• "19th Century Village Life" (150 - 200 student/2 hr. visit)
Sites: Schoolhouse,Blacksmith,Town Square Houses,Church&Town Hall
• Cost $5.00/ student
• Groups can use park for lunch site
"Hands on History"
• 4—5 hours on site (9:30 AM start)
• 8 - 10 students+ 1 adult/group(100— 150 students)
• Opening session—45 min - all students together
• 3 sessions—50 min —all hands on
• 30 min lunch break
• Choice of programs—customized for grade level
• "Life of a Pioneer Family"
• "Trapper and Traders Rendezvous"
• "Westward Ho—Moving West for a Better Life"
• Cost $25 —30/student
"Folkways of the Holidays Tour"(Nov 24—Dec 23)
• 2 hours on site (10 AM or 12 noon start)
• 25 students+2 adults/group(300 students/2 hr visit)
• Tour 7 stations
• Ethnic holiday celebrations
• 19th century daily activities
• Cost $5.00/student
5
• Youth Organizations (June, July, Aug; all weekends May, Sept - Dec)
Choices of:
A visit to HML $5.00/person—2 hour visit
Hands on History- $25 /person—4 hour visit
19`h Century School Day- $25 /person—5 hr visit
Theater/Arts"Making History" - $125 /person—6 hr. /day for 1 wk. (20 max.)
Time Travel Adventure Day Program $95 /person—6hrs/day for 1 wk. (20 max.)
Folkways of the Holidays(Nov&Dec) -$5.00/person—2 hour visit
Special Girl Scout Program: customized for badges—Passports to Past, Folk Arts, Theater Arts
(2—3 hr. onsite)
Classes (anytime) Develop for children, families, adults, senior citizens
Currently offered: Beginning Weaving - $48 /person—3 hr. —2 sessions—adult
Beginning Spinning- $48 /person—3 hr. —2 sessions—Age 14—adult
Braided Rug Class- $35 /person—2 hr.—3 sessions—Age 14—adult
Handmade Soap- $30/person—2 hr.— 1 session—Age 14—adult
Promotion:
• To members
• In weekly newspapers,
• Through the Community Education Programs
Belle Plaine Edina Lakeville Norwood-Young America
Bloomington Farmington Minnetonka Prior Lake-Savage
Burnsville Hastings Montgomery-Lonsd. Rosemount/A.V./Eagan
Chaska Hopkins New Prague Shakopee
Eden Prairie Jordan Northfield Waconia
Watertown/Mayer
Wayzata
Some Future Possibilities:
1800's School Day Weaving
Artifacts and what they tell about a family Homemade Music and Instruments
Barter-Trade(weights and measures) Horse Care/Animal Care
Basket Making Journal/Diary(Book Binding)
Blacksmithing Log House Building
Build Your Own Panorama Manners
Butter Churning Moving Panorama
Candle Making Music and Dance
Cooking on a wood stove Print Shop
Dakota Life/Burial Mounds River Boating-Ferry
Fire starting/Survival Rope and Whip Making
Flour Making Seed Saving
Food Drying Spinning
Games and Toys Transportation
Health Care Trip to Minnesota(immigrant travel)
• ill
6
Evenings
• Special event programs for adults or families
Promote as a"Season Event Package" and as single tickets
Events such as An Evening at the Theater, 19th Century Music, A Taste of...., etc.
• Special events for corporate or special interest groups
• Various fees depending on#of people and length of time on site, etc.
Weekends
• Site open to general public (10 AM—5 PM)
• Opportunity to showcase participants taking Mon. —Fri. classes
Monthly Themes
May 27,28,29 *Fur Trappers and Traders' Rendezvous 1st Settlers in Mn.Territory
June 3,4 Here Comes the Bride- 19th Century Nuptials "
June 10, 11 Spinning,Weaving,Quilting ff
June 17, 18 *Westward Ho! Pioneers Go West
June 24,25 Summer Solstice
July 1 &2 Wild Berries&Herbs
July 4 Old Fashioned Shakopee 4th - 1800'S Baseball Game
July 8&9 Life in a Log Cabin ff
July 15, 16 Fire! Fire! -A Firefighters' Weekend "
July 22,23 Getting Ready for a Barn Raising—Working Together
July 29,30 Cooking,Cleaning&Raising Children
"Women's Work is Never Done"
August 5,6 *Going Off to War—A Civil War Weekend 19th Century Village Life
August 12, 13 Fancy Fiddlers and Old Time Music&Dance
August 19,20 Tales Told Around the Fire—A Storytellers'Weekend
August 26,27 Doctor Dunn's Traveling Medicine Show
September 2-4 Laura Ingalls Wilder—`Little House"Weekend Celebrate the Harvest
September 9, 10 "There Ought to be a Law"-the Temperance Movement
September 16, 17 "Come and Get It!"—A Taste of Murphy's Landing
September 23,24 *Riverboats,Buggies and Iron Horses—
A Transportation Weekend
September 30,31 The Germans' Octoberfest
October 7, 8 Fall Rendezvous—Preparing for the Winter
October 14, 15 Old West Weekend—Prepare for the Winter
October 21,22 *Old Time Harvest Festival—Pioneer Weekend
October 28 Old Fashioned Shakopee Halloween
Nov.24—Dec.23 *Folkways of the Holidays
*Indicates current programs
� I
ii
7
Shakopee Special Events
• Old Fashion 4th of July
• Events Co-sponsored by Shakopee businesses, groups and organizations
• HML proposes Basic, Regular or Deluxe programs to be sponsored by business or
organization
• Free admissions to local residents
• Promoted only in Shakopee are
• Old Fashion Halloween(for pre-schoolers—5th graders and 1 adult/family
• Event Co-sponsored by Shakopee businesses, groups and organizations
• Treats provided by local business or organization
• HML provides 40 stops to collect treats and candle light walking paths
• Visitors must pick up 1 free ticket/child at area locations
• Tickets will not be available on day of event
• Event open for and promoted to families in the Shakopee School District
Outreach (Nov, Jan—May)
• Potential Full time work for interpreters
• Current programs
• Artist in residence(customized for each school)
• HML's Magnificent Moving Panorama(45 min- $300)
• Future Possible Programs
• Immigration
Who was coming to America and why- how did they get here
Setting up a homestead
Holding onto old traditions - starting new ones
• Music/Entertainment
Song and dance from the time period(reels, haymaker, etc.)
Learn about musical instruments from the time
• Family/Children's lives
Gender and age roles
What it took to live
Rural vs. Urban living
• Fur Trade
Its importance in Minnesota
Native American role
• Medicine
Typical illnesses and cures
Doctor came to you
New advances
• 1800s School Day
• Panorama- Show itself
• Theater/Arts- as a group project -build a panorama
8
Artisans (Skilled in any art or trade;a handicraftsman;a mechanic)
• HML could provide studio space and residential space (9 units)
• Products could be sold at"artisan's Marketplace", in catalog and on website
• Artisans trained as interpreters and class teachers
• Potential Artisans:
Banker Painter
Baker Pewterer
Basket maker* Pianist
Beekeeper* Photographer
Blacksmith* Postmaster*
Bookbinder Potter*
Brick maker Printer
Broom Maker Puppeteer*
Cabinetmaker Quitter*
Candle maker Railroad Engineer
Carpenter Riverboat Pilot
Clock maker Rug Maker*
Cordwainer* Sawmill—Sawyer
Cook* Shoemaker-Cobbler
Cooper-Barrel maker Silversmith
Coppersmith Soap maker*
Cutler Spinner*
Dressmaker—Seamstress Stagecoach Driver*
Engraver Telegrapher
Flour Miller Tinsmith*
Glassblower* Weaver*
Gunsmith Wheelwright-Wheel maker
Hatter(Man) Wooden Buckets*
Jeweler Wood Carver*
Leather worker* Wood Turner*
Maid Wooden Wear*
Musician*
* - Artisans that have worked at HML and are available
Progressive Development of Program Staff and Volunteers
• Develop progressive program of training according to "Core Practices". Those wishing to serve in
program roles will be introduced to those position through several steps as follows:
• 14 step Visitor/Class participant
• 2°d step Volunteer/Member
• 3`d step Interpreter
• 4th step Artisan
9
Resource Center and Library
• Organized by 19th Century skills and occupations
• Description of occupation or skill
• Photos
• Tools
• Book list
• MHS references
• Future Web site
• Tools and equipment
• Inventory
• Display
• Reproductions
• Use
• Proper care, use and sharpening
Future Goals
• Operating Ferry Crossing
• 19th Century Style Riverboat Landing
• Murphy's Inn—Bed and Breakfast—Dance Hall
• Interpretive Center -Earth Shelter—Library—Multimedia Transition Hall onto site
• Pond Mill—Turbine and Steam Power
• History of 19th Century Agriculture
• Steam Powered Sawmill
• Threshing Show
• Fire Department
• Farm Animals
• Carriage Works/Wagon Shop
• Railroad Train—Static Display
• Brickyard
• Brick Oven
• Monastery
• Brewery and Distillery
• Stagecoach
• Lime Kiln
• Opera House
• Outdoor Performing Arts Stage
• Dormitory Space
• Endowed Restoration and Maintenance Program
• Development of Chief Shakopee Village Site and Burial Mounds
• Depot on east end of site with railroad water tower
• Steam Engine Train Run HML to Mendota to St. Paul
• Paddle wheel Riverboat Run HML to Mendota to St. Paul
Conclusion
• M—F site open for scheduled,prepaid educational activities
• Sat, Sun and holidays site open to showcase educational activities to the general public
• Develop strong partnerships with the City of Shakopee, Scott County and Shakopee, Savage &Prior
Lake Schools
• Become the regional center for"hands on learning"about 19th Century Minnesota life
10
Marketing
• Develop Marketing philosophy
• Create year long marketing plan
• Devise specific strategies for marketing HML education programs to:
Schools Youth organization Families
Adults Senior Citizens Historical Societies
• Quarterly 1 page insert for other historical society newsletters
• No charge to historical societies
• 1 side 19th century life feature with cooking and decorating ideas
• 1 side HML promotion for classes and events
Membership Benefits
• Monthly newsletter listing:
• Events and Special Programs
• Classes
• Artisan news and products for sale
• School programs
• Youth organization programs
• Volunteer opportunities
• Quarterly magazine featuring in depth articles about:
• 19th century occupations, skills, daily life
• Natural Environment of the 19th century
• Native Americans
• Archaeology
• Invitations to all fundraising and special events
Buildings and Maintenance
• Develop year long work schedule including responsibilities that are:
• Daily
• Weekly
• Monthly
• Seasonal
• Special Events
• Evaluate buildings needs:
• Immediate—need to be done for season opening
• Regular maintenance—done during season
• Restoration—projects,priorities, $raised, materials, date schedule
11
Partnerships (Potential Resource Groups)
Area Public and Private Schools*
Area Vocational Technical Colleges
Atelier Lack(Fine Art Group)
Carver County Historical Society*
Carver-Scott Educational Cooperative*
Crime Prevention Program
Dakota Society
Eden Prairie Park and Recreation
Friends of the Mississippi River
Great Railroad Excursion of 1854-Don Shelby
Greater Metropolitan County and Local Historical Societies
Hennepin County Public Libraries
Knitter's Guild
Metropolitan Library Services Association (MELSA)
Minneapolis Public Library
Minnesota Agriculture in the Classroom
Minnesota Archeological Society
Minnesota Blue Grass&Old Time Music Association
Minnesota Department of Agriculture
Minnesota Department of Natural Resources*
Minnesota Historical Society*
Minnesota Public Radio
Minnesota Public Television
Minnesota River School of Fine Art*
Minnesota Valley National Wild Life Refuge*
Minnesota Whips and Wheels*
Mendota Dakota Community
National Trust for Historic Preservation*
Prairie island Dakota Community
Peter Edmunds Log Building Restoration*
Preservation Alliance of Minnesota*
Quitter's Guild
Scott County Historical Society*
Scott County Park System
Scott County Public Libraries
Seed Savers*
Shakopee Parks and Recreation Department*
Shakopee Mdewakonton Dakota Community
Spinner's Guild
St. Paul Public Library
St. Paul Riverfront Development Corporation
State Arts Council -Phil Nusbaum*
12
Suburban Hennepin County Park System
Tapestry Folk Dance Center
Timber Framers Guild
University of Minnesota Master Gardner Program
Various Ethnic Organizations
Weaver's Guild
-Organizations with which we already have some relationship
Draft OHEC Lease Page 1 of 1
Mark McNeill
From: Riggs, Scott J. [sriggs@Kennedy-Graven.com]
Sent: Friday, May 12, 2000 4:45 PM
To: 'TWarhol@ci.shakopee.mn.us; 'MMcNeill@ci.shakopee.mn.us'
Cc: Thomson, James J.
Subject: Draft OHEC Lease
Pursuant to the request of City Attorney Jim Thomson,I have made an initial review of the proposed
lease for OHEC. The lease as presently drafted does not reflect my understanding of the interest to
be leased to OHEC. The lease is drafted between the City of Shakopee and OHEC. My
understanding is that the lease should be between Murphy's Landing and OHEC, in the form of a
sublease,with the City merely approving the sublease at this time(and an additional provision that
would create a lease between the City and OHEC should the lease between the City and Murphy's
Landing be terminated before the sublease). At this time,the City does not appear to possess an
interest to lease to OHEC. As such,the lease should be revised to reflect the proper relationship for
the parties to this matter.
In addition,based upon the correspondence that I have reviewed in our files, various additional terms
that have been discussed between the City/Murphy's/OHEC do not presently appear in the lease (e.g.,
reverter language,building ownership upon lease termination,utility installation,restoration
requirements, assignment and subletting restrictions, etc.). The lease should also be revised by the
drafter to reflect the requested terms of the City.
Once the lease has been revised to reflect the proper parties and terms, a substantive review of the
terms of the lease should be made to determine the appropriateness for the City. The present lease
has various terms that should be revised,but many could be change substantially in the redraft; thus,I
will not specifically address these matters at the present time,as they may become moot. There are
also a few additional provisions that should be added for the protection of the City,but these
provisions can be added at the time of the review of the redrafted lease.
Thus, as noted above, specific comments at this time would not appear to be prudent,but should be
left until the time the revised lease is received. Please let me know if you would desire,prior to the
meeting on Monday, a more detailed listing of the present provisions of the lease that require
revision. Likewise,please feel free to contact me with any other questions you may have concerning
this matter.
Thank you.
Scott Riggs
612-337-9260
5/15/00
Live .
CITY OF SHAKOPEE
Memorandum
TO: Mayor and City Council
Mark McNeill, City Administrator
Lou Van Hout, SPUC Utilities Manager
FROM: R. Michael Leek, Community Development Director
SUBJECT: Water Discussion, Planning Coordination to Meet Growth Needs
MEETINGDATE: May 15, 2000
INTRODUCTION:
This meeting was scheduled to allow the Council and representatives of SPUC to discuss
water supply issues further. Mr. Van Hout, SPUC Utilities Manager, asked that a
discussion of Planning Coordination be added to the agenda for the meeting.
DISCUSSION:
Water:
Mr. Van Hout and Ken Adolf of Schoell and Madson have previously presented the
Council with an analysis of water supply. In short, the analysis concludes that SPUC's
current system is sufficient to supply water to both existing and new development in the
City without further water use restrictions, assuming that new development does not
exceed 1999 levels. The analysis goes on to conclude that new wells will need to be
brought on line in 2001 and 2002 in order to continue providing the same levels of water
service. In the meantime, SPUC has directed its staff to take additional steps to secure
approvals for future wells. (See Mr. Van Hout's letter to DNR, received in City offices
on May 81h)
The conclusions of the analysis notwithstanding, SPUC is unable to guarantee that there
will be sufficient, un-interrupted water supply. For that reason, SPUC staff has not been
able to answer"yes" or"no"to the question posed on project review sheets circulated by
the Planning staff. Until now, absent that answer, and based on Council direction, city
staff has refrained from making a positive recommendation. However, city staff has
proposed alternative actions for Commission or Council consideration. Joe Adams of
SPUC has proposed an alternative response, which is found in the attached letter.
The question to be discussed is whether Council wishes to provide any different direction
to City staff vis-à-vis review of development applications, or to SPUC and its staff
regarding additional information Council needs, or additional steps the Council feels
should be taken to address the water supply issues.
Planning Coordination:
In the past, while SPUC has used population and development growth projections made
by the Metropolitan Council or City staff to develop its overall plan and plan
supplements, the time horizon of SPUC's plan has been short. The most recent plan
supplement prepared by Schoell and Madson has a 5-year time horizon. SPUC's overall
was developed in 1993, and has been supplemented in subsequent years. By contrast the
City's most recent plan was adopted in 1996, and is already the subject of a major overall
revision.
By contrast, under the Metropolitan Land Planning Act(MLPA)the City is required to
plan 20 years out. The Water Supply element of the City's comprehensive plan is a very
important element. With the increasing importance being placed on long-term and
alternative water supply planning by the Metropolitan Council, Department of Health and
Department of Natural Resources, it is important that the City's and SPUC's water supply
planning be consistent in both time horizon and policy direction.
One possibility would be for the Council and SPUC to cooperate on an overall revision of
SPUC's water plan, with a year 2020 time horizon. This revision could, of course,
incorporate any appropriate work already done by SPUC or its consultant. Upon
completion, the plan would be incorporated into the City's overall comprehensive plan,
as well as serve as SPUC's plan for implementation purposes.
ACTION REQUESTED:
Provide City staff, SPUC or its staff with any additional direction on these items it deems
appropriate.
MAY-04-2000 16:04 FROM SHAKOPEE PUBLIC UTILITIES TO 4456718 P.01
CITY QF SHAKOPEE
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Mr. Pat Lynch, Area Hydrologist
Minnesota Department of Natural Resources u
Metro Regional Headquarters U ��
n'
1200 Warner Road MAY 0 8 ?�®O
St. Paul, Mn 55146 U
By
RE: Well #10
Request to Construct Well to Mt. Simon Aquifer an.
Appropriate Water from that Aquifer; Appeals Inquiry
Dear Mr. Lynch:
This letter is to respond to your letter of 3/3/2000 in two
aspects:
A) to propose an alternative which we feel has merit , and
B) an inquiry into the procedures for appeal within the DNR.
Although there is some concern that including the second item might
preclude any realistic chance of consideration of the first, we
trust that fair consideration will be given to both parts of this
letter.
A) Propose an additional alternative for DNR' s consideration:
Although the two alternatives in your letter of 3/3/2000 did not
meet our expectations, the existence of those alternatives was
encouraging and we hope that our proposing of an additional
alternative is viewed in the same light .
We would like to suggest an alternative which we feel would achieve
the need of the DNR to protect the MTS-H aquifer and still provide
Shakopee a reasonable utilization of the Well #10 .
That additional alternative for DNR approval would be:
- we would be permitted take water from our current MTS-H wells
(#2 & #3 ) and Well #10 , but
- the permit would limit our total annual appropriation from the
MTS-H aquifer to the amount calculated by inserting current
_)
population and past consumption data into the guideline paper
that the DNR has adopted for that calculation.
Whether that pumping was from Wells #2, #3 , #10 , or any
combination, the appropriation from the MTS-H would be within the
amount the DNR has designated for domestic use per the guideline
paper.
This proposed alternative would withdraw no more water from the
MTS-H aquifer than would be authorized under alternative #2 in the
3/2/2000 letter, maintaining the DNR' s charge of protecting that
MTS-H aquifer overall, while allowing us to achieve our goal of
being able to utilize our investment in infrastructure to meet the
water demand of a growing community.
Let me comment on the two alternatives in your 3/2/2000 letter to
explain why we are requesting a different alternative be
considered.
Alternative #1 in the 3/3/200 letter would let us operate Well #10
only for blending. Although this achieves some of what we had
proposed in our 1997 request, it does not allow us to use the well
for other production. If you recall, there was concern in 1997
that taking water from the Jordan aquifer might affect the Savage
Fen or Boiling Springs. Our 9/10/97 letter noted the concern about
going to the MTS-H aquifer, but noted both the reasons for doing so
and the benefit of avoiding concern about the Jordan aquifer
affecting the Fen or Boiling springs. A Jordan well for general
production would have instigated those concerns .
Alternative #2 in your 3/3/2000 letter contains requirements that
will cause us further cost , would result in a detriment to our
system, and would further greatly complicate the matter. Although
the abandonment/replacement of MTS-H wells had been mentioned by
the DNR in general fashion as an alternative looked favorably upon
for any water supplier, I do not believe the re-configuring of Well
#2 or #3 in connection with Well #10 was formally proposed until
the latest correspondence.
While we understand the goal in eliminating multi-aquifer wells ,
and would view it as an inevitable requirement someday, requiring
modification of Well #2 or #3 as a condition on Well #10 now (after
all the time has passed on that project without that being made a
requirement previously) should not be a requirement for two
reasons:
- this cost , time delay, and uncertainty was never factored into
the Well #10 project , and
- we cannot afford the risk of a low producing well #2 or #3:
- Well #2 is relied upon for blending with Well #8 which is
a high producing Jordan well with fluctuating nitrate
levels,
- Well #3 is expected to be used in the future (although it
could be re-configured into a single aquifer well at that
time) for blending with a new Jordan well which is
contemplated near Well #3
I would note that we have recently (on 4/14/2000 ) appraised the DNR
of the general concept to site a new Well #12 near Well #3 . This
was done while asking for comment from the DNR on our proposed site
for Well #11.
Our concept for using Well #3 for potential blending with a new
Jordan well does not preclude Well #3 from being re-configured as a
FIG well. Although we have doubts on the production ability of a
FIG well based on the results of Well #10, we would view a FIG well
as acceptable if there is enough production at that site.
We would hope to have the ability to resolve this question at Well
#3 by testing it in conjunction with the DNR before having it
reconfigured in the future as either FIG or MTS-H well.
The alternative of finishing Well #10 in the FIG aquifer was not
revisited in your 3/3/2000 letter of course, and I also will not
take everyone' s time to again review that issue, except to note it
as being the very "leave-as-is" alternative we are requesting
relief from due to the low production from that aquifer at this
site.
B) inquire into the procedures for appeal within the DNR:
Little information is commonly known about appeals procedures
within the DNR in a situation involving wells and water
appropriation. Notwithstanding our concerns about including this
request in the same letter where we ask for consideration of an
alternative proposal , we do feel it necessary to inquire about such
a process. I would expect that there might be a different appeals
process within the DNR depending on the matter under consideration.
It is our understanding that both the most recent and all previous
letters from the DNR are a compilation of the comments of several
individuals within the DNR. This is fully understandable given the
overlapping concerns that our appropriation request involved. But
•
in consideration of that reality, it would seem that an appeal
should not require us to circulate from one department within the
DNR to another when it might be clear that an overall review is
needed.
I would ask for direction as to the appeals process we would be
expected to follow.
In conclusion, I would like to recognize that our request for Well
#10 in a protected aquifer has certainly made the matter much more
complicated than it would otherwise have been. But I would ask
that it be kept in mind that our initial request was made in 1997,
when there were complications with both Jordan and MTS-H aquifers,
and nitrate levels in wells #6 and #7 were increasing; and of
course we wanted to get production from our investment.
Some of those complications may have since been resolved or
stabilized, but we had to begin the project at that time.
We feel our new proposed alternative does protect the MTS-H aquifer
and does allow us to utilize the expenditures made on this project,
and we hope the DNR will agree.
Because we need to commit to the final construction of Well #10 by
Summer of 2000 to be ready for 2001, we ask for timely response to
this request, and are willing to meet with you or others at your
convenience.
Sincerely yours,
r---
57
ui iVan Hout
Utilities Manager
Shakopee Public Utilities Commission
c.c. Jim Thomson, Kennedy and Graven
Mark McNeill, City of Shakopee
Ken Adolf , John Baxter, Schoell and Madson Inc .
' MHK-2'(-0UW Uti 41 FKUM SHHKUPEE PUBLIC UTILITIES TO 4456718 P.01
Post-it°Fax Note 7671 Date lam►
TOkriA-a MCS Qi�< From j/r►,—//c'.r—
�� TO; SPUC / co.rosPt co.
FROM: Lou
RE: Well #10, DNR Letter of 3/6/2000, Water Adequacy
DATE: 3/25/20003o'14
Before addressing Well #10, some comments on the question of 04
water
water adequacy would be beneficial.
5•P`"1-
Water Adequacy:_
As you know, over the past two weeks the question of water P`y
adequacy has become a topic of increased interest to the City
Council.
In view of the difficulties in resolving the Appropriation Permit
from the DNR for Well #10, the City Council has directed staff to
set up a joint meeting between Council, SPUC, Legislators, DNR
staff, with the Metropolitan Council staff representative also
invited.
The question of water adequacy will be a backdrop to any
discussions on Well #10. In view of this, staff and Engineer
will be prepared for a general discussion of adequacy this Monday
evening - but a report on that matter is being drafted in
preparation for more thorough review at your next Regular
Meeting.
SPUC has addressed the adequacy issue as recently as the 2/7/2000
meeting when the decision was made to operate Well #10 with #6
for the Summer of 2000, with further direction to update our
contingency response plan.
But concern was raised at the 3/16/2000 Council Worksession about
the lack of progress on Well #11 and whether adequate water
supply will be available in 2001 to meet the needs of plats and
developments already approved, plus new ones coming up for
approval.
•
SPUC 's determination of adequate water supply in 2001 and beyond
has been dependent on a reasonable expectation getting permission
from the DNR to operate additional wells as the City grows.
There is some feeling that such expectations need to be confirmed
with the DNR - something which I believe SPUC had attempted to do
on Well #10 to no avail.
MAR-27-200U bid:41 FRUM bHHKUI-tt HURL 1 U U I 1 L 1 I 1 tb I U 445b711=1 P.4i2
wet] #1Q, response to 3/3/2000 DNR letter:
At the last SPUC meeting there was discussion on the Commission's
response to the 3/3/2000 letter from the DNR. Due to that letter
only being received the Friday before, it was sent out with the
agenda with no staff comment - only a cover memo advising that an
analysis by our Engineer was expected by the Monday meeting.
After some discussion at that 3/6/2000 meeting, the remainder of
the discussion was continued until 3/27/2000 so staff could
provide copies of the initial request to the DNR as background
for further discussion.
Enclosures:
A copy of our 9/10/97 initial request to the DNR is included with
this memo. That request, and the 3/3/2000 letter from the DNR,
are the beginning and the most recent end point of the matter for
comparison.
•
During this Well #10 project, there have been staff and
consultant meetings with the DNR and Met. Council staff, and
there has been additional correspondence. The additional
correspondence with the DNR is also included with this memo for
further reference if desired.
3/27/2000 Meeting:
As you know, it is no longer possible to modify Well #10 before
Summer of 2000. While there are options on which wells to place
in operation to address issues of adequacy and nitrates (run
Wells #10 and #6, or Wells #6 and #7 ) , the wells now in place are
what we have for Summer 2000.
The question now is to resolve SPUC's course for Summer 2001 and
beyond.
•
The SPUC meeting this Monday evening (5 PM, 3/27/2000 ) , will have
SPUC staff, Ken Adolf our Engineer, possibly City staff, and Jim
Thomson of Kennedy and Graven - City Attorney and SPUC Attorney
on certain matters.
Mr. Thomson is prepared to advise on legal and procedural matters
related to Well #10. Among other considerations, there might be
- or not - a time limit on your response to the DNR letter.
Following this memo are a few pages of commentary. I have
separated the commentary from the main text of this memo to keep
this one focussed on facts, current events, and action items.
• 1'1Hk- 7-dUUb UIQ;41 I-HUM bHHKUh hh HU13L 1 L U I 1 L 1 I 1 b5 I U 445b'(18 h'.U 5 II
conclusion:.
To recap some points from the commentary and other points, I
believe the following are things that should be reviewed:
1. financial repercussions of the alternatives in the DNR
letter (funding from operations vs. Connection Fund)
2. utilization of the $643,000 investment in Well #10 (vs.
unused value if nitrate levels stay low in Wells #6 and #7)
3. the need to accelerate the construction of Well #12 and all
subsequent wells if #10 is not usable for regular supply
4. whether one can get assurances from the DNR on any
alternatives - without the standard tag line that they
reserve the right to require other measures no matter what
arrangements are agreed upon.
5. consider that the Commission had decided in January 2000 to
try to end the cycle of discussions, negotiations, and
letters; and make a clear request to the DNR for an
unambiguous answer, which would then be examined for
acceptance or appeal.
Potential Actions on 3/27/2000:
Pending Mr. Thomson's advice, the choices for action at this time
appear to be:
a) Accept one of the alternatives in the 3/3/2000 DNR letter,
b) Appeal to the DNR to reconsider their response and grant the
initial request,
c) Appeal to the DNR to reconsider their response with some
operational options they should have considered and approved
instead of those in alternatives #1 and #2,
d) Leave Well #10 permanently in the FIG aquifer where it is
now, accepting the low production and high iron content
needing treatment, and simply request a DNR permit for that
arrangement,
e) Cap and do not use Well #10 at all, to avoid the cost of
constructing the pumphouse addition,
f) Continue the SPUC discussion at a future meeting - if the
time limit allows.
V-
'MAR-27-2000 08 42 FROM SHAKOPEE PUBLIC UTILITIES TO 4456718 P.04
3/25/2000
Commentary, Well #10:
As part of the comparison of the initial request and the current
standing of the DNR' s position, I feel a key point is the
utilization of Well #10 for regular pumping during peak months.
Having the well for such use would enable us to derive a good
share of benefit as a supply well. Not allowing this use of the
well (unless nitrate level rise in Wells #6 and #7! ) means
anothel well will have to be constructed to meet peak water
demands. This is Alternative #1 in the DNR letter.
This dual purpose of Well #10 - both for blending and for
increased supply - has always been understood as a part of our
request. Without both purposes being understood, the DNR's
insistence on considering alternatives such as connections to
other Cities and industries as suppliers, or using the Minnesota
River, etc. , make no sense because those alternatives have no
chance to be used for blending with Wells #6 and #7. Those
alternatives only address the question of increased supply.
While the DNR is right in insisting on their obligation to
protect the MTS-H aquifer, putting Well #10 in the MTS-H aquifer
was the only logical choice in 1997 to address the nitrates in
Wells #6 and #7 . If anyone could have guaranteed that the
nitrate levels would have dropped (or can guarantee even now that
they will stay dropped) in Wells #6 and #7, we would not have
pursued a well in the MTS-H aquifer. If the intent of the
legislation protecting the aquifer was simply to allow no such
wells ever, then the legislation would have said that directly.
It does not. And that means judgement is expected to be applied.
None of the above is new information. As is clear from reading
the 9/10/97 initial request, we told the DNR our reasons before
the start of the project.
An example of the difficulty we must overcome is the "catch 22"
in the DNR letter (please note the underlining is mine and not in
that letter) :
- a request "not consistent with alternative #2 (replacement
well) will require implementation of additional conservation
measures. "
- "Regardless of the alter nat .ve_chosen, additional
conservation efforts may be a condition"
Please understand my point is not to mock the construction of the
DNR' s letter. Such letters are difficult to write, and I could
be taken to task as much as anyone for slip ups in some of my
MAR-27-2000 08:42 FROM SHAKOPEE PUBLIC UTILITIES TO 4456718 P.05
letters. However, I do feel it is a valid example of the catch
in which we are placed.
It is standard governmental procedure to include a reserve-clause
essentially cautioning that when all else fails, standard
guidelines still apply. Public agencies need to have such a
clause for protection. But absent someone trying to pull a fast
one, it is not commendable behavior for a public agency to
utilize a reserve-clause as an excuse to undercut a working
relationship. We have not tried to pull a fast one; we have done
exactly as we advised them from the start. We thought we were
complying with all the directives. We felt we were working with
them. And we feel the rules have been changed as things went
along.
We must admit that not all delays on Well #10 are of the DNR's
making. There were construction delays that limited our test
pumping in Summer of 1998. Then the contractor's pump motor
burned out which prevented test pumping during Winter of 1998/99.
So the full test pumping was not done until Summer 1999 .
But the difference is, those delays only put us behind schedule,
they did not stop us from completing the project as the DNR's
answer has done now.
Commentary, Well #11.:
Besides Well #10, we are now deciding how to proceed with Well
#11.
There is some belief that with their new, current understandings,
the DNR might not oppose a Jordan well today as they implied they
would do in 1997 or 1998. Perhaps that belief is correct, but I
have difficulty in knowing how we can be sure of avoiding a
situation similar to Well #10.
It is not a technical distinction, it is a question of
administrative process. There are those who believe we can rely
on the advice of the DNR after asking their comment on our plans
for Well #11. Then we can proceed confidently on that basis. I
believe that the experience on Well #10 shows that would be a
false security.
While I still believe we should advise the DNR of our intent on
Well #11, at the same time we must face the risk of not getting a
permit - or perhaps only getting a very restrictive permit -
after the well is constructed.
•MHK-27-2000 08:4.J I-KUM SHHKUPt6 HUbL 1 L U I 1 L 1 I 1 tb IU 4456'r1H H.06
Despite all that has happened, given the needs of a rapidly
growing city, the Commission might have no choice but to take
that risk and decide to proceed with a construction contract for
Well #11 without having reliable assurance that a permit will
actually be forthcoming.
(end of commentary)
Via, i
III-II\-G I -L UYJYJ U0..-1J I I\UI 1 I V titiJ V I.L,./ I .V I
Enclosures with 3/25/2000 memo:
Enclosures "A" - the Beginning Point, and the Current End Point:
9/10/97 SPUC to DNR original request
3/31/2000 DNR to SPUC approval of 2 alternatives
Enclosures "B" - Other Correspondence:
3/3/98 DNR to SPUC (no reference to well #10 request,
believed to be a general utility item on
rates and new state law)
8/28/98 SPUC to DNR request after test pumping
9/28/98 DNR to SPUC require alternatives analysis
10/27/98 Schoell and Madson to SPUC
9/9/99 SPUC to DNR submit alternatives analysis
12/10/99 DNR to SPUC want further discussion
2/10/2000 SPUC to DNR Renewal of original (9/10/97) request
`N P`
eS�Yf011* r
U/1
TOTAL P.07
CITY OF SHAKOPEE
Memorandum
TO: Mayor& City Council
Mark McNeill, City Administrator
Shakopee Public Utility Commissioners
Lou VanHout, Shakopee Public Utilities Manager
FROM: Bruce Loney, Public Works Director
SUBJECT: Proposed Right-of-Way Ordinance for the City of Shakopee
DATE: May 9, 2000
This memorandum is intended to address a Comprehensive Right-of-Way Management
Ordinance that the City should consider implementing due to recent State Right-of-Way
Legislation and Public Utility Commission rules. Attached to this memorandum are the
following documents that relate to the subject matter:
1. A memorandum from James M. Strommen, of Kennedy & Graven, in regard to
the background of recent legislation and rule changes and reasons for the City to
incorporate a Comprehensive Right-of-Way Ordinance.
2. A letter from James Strommen to the City that explains further the need for a
Right-of-Way Management Ordinance. This contains a sample Right-of-Way
Ordinance that has been adopted by Cottage Grove that meets the State law that
has been previously passed.
This item has been looked at for some time and before proceeding ahead, it would be a
good item of discussion between the City Council and Utility Commission on any
concerns on a new Right-of-Way Ordinance.
Staff will be available to answer any questions on this proposed Right-of-Way Ordinance
at the May 15, 2000 joint meeting between the City Council and Shakopee Public Utility
Commission.
ruce Loney
Public Works Director
BL/pmp
C:Documents/Ordinance
MEMORANDUM
TO: Bruce Loney
FROM: James M. Strommen
DATE: May 8.2000
RE: ROW Ordinance
You have asked for a brief memo regarding the comprehensive right-of-way (ROW) management ordinance I have
growth the Cityis experiencing, it is appropriate to adopt a
sent to you. Given recent legislation and the is a recently-enacted ROW ordinance for the
vbeenprovided Y
ha a
The copyyouROW
C've ROW ordinance. currentfollowing 1997 state
n,t
comprehensive developments
City of Cottage Grove. This ordinance rmC iron(PUC)flects the ru rules.
law and
legislation and 1999 Public Utilities
Though administratively challenging at first. a comprehensive ROW ordinance will allow the City to establish
uniform procedures and fees for all ROW users.
DISCUSSION
With the actual and pending deregulation of telecommunications. 5 decided to enact electric service
comprehensive ROW
and the increasing
demand for ROW access by competing companies. the Legislaturee
management legislation. to 1997 a new law was passed.codified ent. be treated equallyMinn. Stat. 16This2 ti elude 3re.creating ctrtion
a
requirement that all ROW utility users, including iocal government.
ROW access, fees, penalties. bonding. facilities abandonment and other government.elated matters. In 1998 and 1999 the
PUC developed rules to implement uniform ROW management by local
The presence of a municipal utility in the City adds to the need to treat ROW
users by law same.accountther utilities
share
seek to ensure that the City does not favor its municipal utility. The City
of ROW repair costs. in addition to those of the investor-owned utilities and telecom providers.
� lement franchises with the electric and gas
These ROW ordinance provisions can be incorporated into and supplemente
utilities Serving the City. Franchise terms supersede all PUC rules orROW use asrdtnceN regardingwell genral tref samesutobj the PUC
As a
result. franchises will have specific provisions pertaining
to rules.
e
Also included in the Cottage Grove ordinances are utility undergroi g r quiron projects ements. a se thede a
City
comprehensive framework to underground utilities in new development,
chooses.to retire existing overhead lines. Undergrounding can also be dealt with in a separate ordinance or within
a franchise with the electric utility.
The ROW ordinance should be reviewed for use with existing ROW and undergrounding ordinances. Because
these ordinances are comprehensive it is advisable that the previous ordinances appropriately
b be y when this aved ey is adopted.
bef
there are particular provisions from the existing ROW ordinances P
incorporated.
You might also review ROW ordinances adopted by the City of Bloomington(League of Cities by thmodele City
and
d St.
ve
Paul. Minneapolis and St. Paul ordinances are patterned after this ordinance
significant detail regarding each aspect of ROW repair and restoration. I can provide a copy of either the
comparison.
Minneapolis or St.Paul ordinance to you for coin p
Please call and discuss after you have had a chance to review the necessary documents.
Z68-d ZO/ZO'd Z00-1 01E61EEZ19+ N3AYO 7 A03NN3)I-Woad 10:80 00-60-S0
#of ,1
470 Pillsbury Center Post-It®Fax Note 7671 Date (pages A.Wy
Kennedy 200 South Sixth Street To*". t,,^ up,3 J FromA1-g,ci
Co.
• Minneapolis MN 55402 Co./Dept.
(612) 337-9300 telephone
Graven (612) 337-9310 fax Phone# Phone# yy 5 _365n
CHAR TER ED http://www.kennedy-graven.con Fax# Fax#
� �E AMES M.STROMMEN
Attorney at Law
Direct Dial(612)337-9233
email:jstrommen@kennedy-graven.com
May 5, 2000
Bruce Loney,Public Works Director
City of Shakopee
129 South Holmes Street
Shakopee, MN 55379-1351
Re: Right of Way Ordinance
Dear Bruce:
Attached is a Right-of-Way Ordinance that is used by Cottage Grove, incorporating both the
complete form of the model ordinance and the undergrounding ordinance we have prepared. I
have included a minor change from the ordinance originally adopted by Cottage Grove in its
section 19B-13, subd. 2 and 2(a). There is a distinction regarding right to restore between
surface restoration and the subgrade. The City's right to restore itself is limited to the surface
portion of the right-of-way. This language reflects that distinction. I also recommend reviewing
the City of Bloomington's right-of-way ordinance and schedule of fees.
As we discussed, the City has a large presence by a municipal utility. Under the law it must treat
the municipal utility the same as other right-of-way users. Perhaps the easiest rule of thumb is
that the SPUC should follow the same process as NSP and Minnegasco. To the extent the City
itself carries out normal road maintenance, internal tracking of such costs is also necessary.
The proper allocation of right-of-way management costs, including administrative and overhead
costs, is very complicated. To create an exact allocation between and among the many right-of-
way users would require a great deal of time at least initially (time that could be included in the
right-of-way management cost itself). The most reasonable compromise may be to review a City
of Bloomington or other city cost schedule and adjust it for whatever differences exist in
Shakopee. Unless the fees are excessive, it is unlikely that any of the utilities will object.
Bruce Loney
May 5, 2000
Page 2
If you have any questions please call.
Very truly yours,
KE
EnDY GRAY ,N, CHARTERED
Eel(
/ L:
f
/
James M. Strommen
JMS:db
Enclosures
JMS-180076v1
SH155-23
r
Provided to Shakopee 5/4/00
CITY OF COTTAGE GROVE
AN ORDINANCE RELATING TO THE ADMINISTRATION
AND REGULATION OF PUBLIC RIGHTS-OF-WAY IN THE
PUBLIC INTEREST, AND TO PROVIDE FOR THE
ISSUANCE AND REGULATION OF RIGHT-OF-WAY PERMITS;
ADDING SECTION 19B TO THE COTTAGE GROVE CITY CODE
THE CITY OF COTTAGE GROVE DOES ORDAIN:
Section 1. Section 19B of the Cottage Grove City Code is added and reads as follows:
CHAPTER 19B
RIGHT-OF-WAY MANAGEMENT
Sec. 19B-1. Findings,Purpose,and Intent.
To provide for the health, safety and welfare of its citizens, and to ensure the integrity of its
streets and the appropriate use of the rights-of-way, the city strives to keep its rights-of-way in a
state of good repair and free from unnecessary encumbrances.
Accordingly, the city hereby enacts this new chapter of this code relating to right-of-way permits
and administration. This chapter imposes reasonable regulation on the placement and
maintenance of facilities and equipment currently within its rights-of-way or to be placed therein
at some future time. It is intended to complement the regulatory roles of state and federal
agencies. Under this chapter, persons excavating and obstructing the rights-of-way will bear
financial responsibility for their work. Finally, this chapter provides for recovery of out-of-
pocket and projected costs from persons using the public rights-of-way.
This chapter shall be interpreted consistently with 1997 Session Laws, Chapter 123, substantially
codified in Minnesota Statutes Sections 237.16, 237.162, 237.163, 237.79, 237.81, and 238.086
(the "Act") and the other laws governing applicable rights of the city and users of the right-of-
way. This chapter shall also be interpreted consistent with Minnesota Rules 7819.0050 —
7819.9950 where possible. To the extent any provision of this chapter cannot be interpreted
consistently with the Minnesota Rules, that interpretation most consistent with the Act and other
applicable statutory and case law is intended.
Sec. 19B-2. Election to Manage the Public Rights-of-Way
Pursuant to the authority granted to the city under state and federal statutory, administrative and
common law, the city hereby elects pursuant Minnesota Statutes, section 237.163 subdivision
2(b), to manage rights-of-way within its jurisdiction.
1M S-164917 I
CT 160-6I
Sec. 19B-3. Definitions.
The following definitions apply in this chapter of this code. References hereafter to "sections"
are unless otherwise specified references to sections in this chapter. Defined terms remain
defined terms whether or not capitalized.
"Abandoned Facility" means a facility no longer in service or physically disconnected from a
portion of the operating facility, or from any other facility, that is in use or still carries service. A
facility is not abandoned unless declared so by the right-of-way user.
"Applicant means any person requesting permission to excavate or obstruct a right-of-way.
"City" means the city of Cottage Grove, Minnesota. For purposes of section 19B-27, city means
its elected officials, officers, employees and agents.
"Commission" means the Minnesota Public Utilities Commission.
"Congested Right-of-Way" means a crowded condition in the subsurface of the public right-of-
way that occurs when the maximum lateral spacing between existing underground facilities does
not allow for construction of new underground facilities without using hand digging to expose
the existing lateral facilities in conformance with Minnesota Statutes, section 216D.04.
subdivision 3, over a continuous length in excess of 500 feet.
"Construction Performance Bond" means any of the following forms of security provided at
permittee's option:
A. Individual project bond;
B. Cash deposit;
C. Security of a form listed or approved under Minnesota Statutes, section. 15.73,
subdivision
D. Letter of Credit, in a form acceptable to the city
E. Self-insurance, in a form acceptable to the city
F. A blanket bond for projects within the city, or other form of construction bond,
for a time specified and in a form acceptable to the city.
"Degradation" means a decrease in the useful life of the right-of-way caused by excavation in or
disturbance of the right-of-way, resulting in the need to reconstruct such right-of-way earlier than
would be required if the excavation or disturbance did not occur.
"Degradation Cost" subject to Minnesota Rules 7819.1100 means the cost to achieve a level of
restoration as determined by the city at the time the permit is issued, not to exceed the maximum
restoration shown in plates 1 to 13, set forth in Minnesota Rules parts 7819.9900 to 7819.9950.
"Degradation Fee" means the estimated fee established at the time of permitting by the city to
recover costs associated with the decrease in the useful life of the right-of-way caused by the
excavation, and which equals the degradation cost.
1MS-164917 2
CT 160-6 I
"Department" means the department of public works of the city.
"Department Inspector" means any person authorized by the city to carry out inspections related
to the provisions of this chapter.
"Director" means the director of the department of public works of the city, or her or his
designee.
"Delay Penalty" is the penalty imposed as a result of unreasonable delays in right-of-way
excavation, obstruction, patching, or restoration as established by permit.
"Emergency" means a condition that (1) poses a 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.
"Equipment" means any tangible asset used to install, repair, or maintain facilities in any right-
of-way.
"Excavate" means to dig into or in any way remove or physically disturb or penetrate any part of
a right-of-way.
"Excavation permit" means the permit which, pursuant to this chapter, must be obtained before a
person may excavate in a right-of-way. An Excavation permit allows the holder to excavate that
part of the right-of-way described in such permit.
"Excavation permit fee" means money paid to the city by an applicant to cover the costs as
provided in Section 19B-12.
"Facility or Facilities" means tangible asset in the public right-of-way required to provide utility
service. The term does not include Facilities to the extent the location and relocation of such
Facilities are preempted by Minnesota Statutes, section 161.45, governing utility facility
placement in state trunk highways. Facility does not mean electric transmission lines, as
distinguished from electric distribution lines.
"Five-year project plan" shows projects adopted by the city for construction within the next five
years.
"High Density Corridor" means a designated portion of the public right-of-way within which
telecommunications right-of-way users having multiple and competing facilities may be required
to build and install facilities in a common conduit system or other common structure.
"Hole" means an excavation in the pavement, with the excavation having a length less than the
width of the pavement.
JMS-164917 3
CT 160-61
nS
"Localof suchperson or persons,
Representative" means a local person or persons, or designee p ,
authorized by a registrant to accept service and to make decisions for that registrant regarding all
matters within the scope of this chapter.
"Management Costs" means the actual costs the city incurs in managing its rights-of-Way,
including such costs, if incurred, 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 correct 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 1.30 of this chapter.
"Obstruct" means to place any tangible object in a right-of-way so as to hinder free and open
passage over that or any part of the right-of-way.
"Obstruction Permit" means the permit which, pursuant to this chapter, must be obtained before
a person may obstruct a right-of-way, allowing the holder to hinder free and open passage over
the specified portion of that right-of-way, for the duration specified therein.
"Obstruction Permit Fee" means money paid to the city by a permittee to cover the costs as
provided in Section 19B-12.
"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.
"Pavement" means any type of improved surface that is within the public right-of-way and that is
paved or otherwise constructed with bituminous, concrete, aggregate, or gravel.
"Permit" has the meaning given "right-of-way permit" in Minnesota Statutes, section 237.162.
"Permittee" means any person to whom a permit to excavate or obstruct a right-of-way has been
granted by the city under this chapter.
"Person" means an individual or entity subject to the laws and rules of this state, however
organized, whether public or private, whether domestic or foreign, whether for profit or
nonprofit, and whether natural, corporate, or political.
Probation" means the status of a person that has not complied with the conditions of this chapter.
1MS-164917 4
CTI 60-61
"Probationary Period" means one year from the date that a person has been notified in writing
that they have been put on probation
"Public right-of-way" has the meaning given it in Minhnesota Statutes, .section 237.162,
subdivision 3.
"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 or equipment in the right-of-way
"Restore or Restoration" means the process by which an excavated right-of-way and surrounding
area, including pavement and foundation, is returned to the same condition and life expectancy
that existed before excavation.
"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 Minnesota Public Utilities Commission rules.
"Right-of-Way Permit" means either the excavation permit or the obstruction permit, or
both, depending on the context, required by this chapter.
"Right-of-Way User" means (1) a telecommunications right-of-way user as defined by
Minnesota Statutes, section 237.162, subdivision 4; or (2) a person owning or controlling a
facility in the right-of-way that is used or intended to be used for providing utility service, and
who has a right under law, franchise, or ordinance to use the public right-of-way.
"Service or Utility Service" means and includes (1) services provided by a public utility as
defined in Minnesota Statutes 216B.02, subdivisions 4 and 6; (2) services of a
telecommunications right-of-way user, including transporting of voice or data information; (3)
services of a cable communications system as defined in Minnesota Statutes, chapter. 238.02,
subdivision 3; (4) natural gas or electric energy or telecommunications services provided by a
local government unit; (5) services provided by a cooperative electric association organized
under Minnesota Statutes, chapter 308A; and (6) water, sewer, steam, cooling or heating
services.
"Supplementary Application" means an application made to excavate or obstruct more of the
right-of-way than allowed in, or to extend, a permit that had already been issued.
"Temporary Surface" means the compaction of subbase and aggregate base and replacement, in
kind, of the existing pavement only to the edges of the excavation. It is
temporary in nature except when the replacement is of pavement included in the city's two-year
plan, in which case it is considered full restoration.
"Trench" means an excavation in the pavement, with the excavation having a length equal to or
greater than the width of the pavement.
JMS-164917 5
CT 160-6 I
"Telecommunication right-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 chapter, a cable communication system defined and regulated under Minn. Stat.
Chap. 238, and telecommunication activities related to providing natural gas or electric energy
services whether provided by a public utility as defined in Minnesota Statutes, seciton. 216B.02,
a municipality, a municipal gas or power agency organized under Minnesota Statutes, chapters.
453 and 453A, or a cooperative electric association organized under Minnesota Statutes, chapter
308A, are not telecommunications right-of-way users for purposes of this chapter.
"Two Year project Plan" shows projects adopted by the city for construction within the next
two years.
Sec. 19B-4 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. 19B-5. 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 city 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
Sec. 19B-6. Registration and Right-of-Way Occupancy.
Subd. 1. Registration. Each person who occupies, uses, or seeks to occupy or use, the
right-of-way or place any equipment or facilities in or on the right-of-way, including persons
with installation and maintenance responsibilities by lease, sublease or assignment, must register
with the city. 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 perform any other work on, or use any facilities or any part thereof in any right-of-
way without first being registered with the city.
Subd. 3. Exceptions. Nothing herein shall be construed to repeal or amend the
provisions of a city ordinance permitting persons to plant or maintain boulevard plantings or
gardens in the area of the right-of-way between their property and the street curb. persons
planting or maintaining 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 chapter. However,
JMS-164917 6
CT 160-61
nothing herein relieves a person from complying with the provisions of the Minnesota Statutes,
chapter 216D, Gopher One Call Law.
Sec. 19B-7. Registration Information.
Subd. 1. Information Required. The information provided to the city at the time of
registration shall include,but not be limited to:
(a) Each registrant's name, Gopher One-Call registration certificate number,
address and e-mail address if applicable, and telephone and facsimile
numbers.
(b) The name, 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 authorized to do business in the State of
Minnesota, or a form of self insurance acceptable to the city;
(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 and equipment in the right-of-way
by the registrant, its officers, agents, employees and permittees,
including, but not limited to, protection against liability arising
from completed operations, damage of underground facilities and
collapse of property;
(3) Either naming the city as an additional insured as to whom the
coverages required herein are in force and applicable and for
whom defense will be provided as to all such coverages or
otherwise providing evidence satisfactory to the director that the
City is fully covered and will be defended through registrant's
insurance for all actions included in Minnesota Rule part
7819.1250;
(4) Requiring that the city be notified thirty (30) days in advance of
cancellation of the policy or material modification of a coverage
term;
JMS-164917 7
CTI 60-61
(5) Indicating comprehensive liability coverage, automobile liability
coverage, workers compensation and umbrella coverage
established by the city in amounts sufficient to protect the city and
the public and to carry out the purposes and policies of this
chapter.
(d) The city may require a copy of the actual insurance policies if necessary to
ensure the director that the policy provides adequate third party claim
coverage and city indemnity and defense coverage for all actions included
in the indemnity required by Minnesota Rule part 7819.1250.
(e) Such evidence as the director may require that the person is authorized to
do business in Minnesota.
Subd. 2. Notice of Changes. The registrant shall keep all of the information listed
above current at all times by providing to the city information as to changes within fifteen (15)
days following the date on which the registrant has knowledge of any change.
Sec. 19B-8. Reporting Obligations.
Subd. 1. Operations. Each registrant shall, at the time of registration and by December
I of each year, file a construction and major maintenance plan for underground facilities with the
city. Such plan shall be submitted using a format designated by the city and shall contain the
information determined by the city 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 city will have available for inspection in the city's office a
composite list of all projects of which the city has been informed of the annual plans. All
registrants are responsible for keeping themselves informed of the current status of this list.
Thereafter, by February 1, each registrant may change any project in its list of next-year projects,
and must notify the city and all other registrants of all such changes in said list. Notwithstanding
the foregoing, a registrant may at any time join in a Next-year project of another registrant listed
by the other registrant.
JMS-164917 8
CTI 60-61
Subd. 2. Additional Next-Year Projects. Notwithstanding the foregoing, the city 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. 19B-9. 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 city to do so.
(a) Excavation Permit. An excavation permit is required by a registrant to
excavate that part of the right-of-way described in such permit and to
hinder free and open passage over the specified portion of the right-of-way
by placing facilities described therein, to the extent and for the 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 Extensions. No person may excavate obstruct the right-of-way beyond
the date or dates specified in the permit unless (i) such person 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. In accordance with Minnesota Rule 7819.1000 subp. 3 and
notwithstanding subdivision 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 Display. permits issued under this chapter shall be conspicuously
displayed or otherwise available at all times at the indicated work site and shall be available for
inspection by the city.
Sec. 19B-10. Permit Applications.
Application for a permit is made to the city. 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 city pursuant to this chapter;
1MS-164917 9
CTI 60-61
(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.
(c) Payment of money due the city for:
(1) permit fees, estimated restoration costs and other management
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 fees or other charges, 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) Posting an additional or larger construction performance bond for
additional facilities when applicant requests an excavation permit to install
additional facilities and the city deems the existing construction
performance bond inadequate under applicable standards.
Sec. 19B-11. Issuance of Permit; Conditions.
Subd. 1. Permit Issuance. If the Applicant has satisfied the requirements of this
chapter, the city shall issue a permit.
Subd. 2. Conditions. The city 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. 19B-12. Permit Fees.
Subd. 1. Fee Schedule and Fee Allocation. The city's permit fee schedule shall be
available to the public and established in advance where reasonably possible. The permit fees
shall be designed to recover the City's actual costs incurred in managing the right-of-way and
shall be based on an allocation among all users of the right-of-way, including the city.
Subd. 2. Excavation Permit Fee. The city shall establish an Excavation permit fee in an
amount sufficient to recover the following costs:
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(a) the city management costs;
(b) degradation costs, if applicable.
Subd. 2. Obstruction Permit Fee. The city shall establish the obstruction permit fee 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 city has
revoked for a breach as stated in section 19B-22 are not refundable.
Subd. 5. Application to Franchises. Unless otherwise agreed to in a franchise,
management costs may be charged separately from and in addition to the franchise fees imposed
on a right-of-way user in the franchise.
Sec. 19B-13. 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
circumstances beyond the control of the permittee or when work was prohibited as unseasonal or
unreasonable under section 19B-16.
Subd. 2. Patch and Restoration. permittee shall patch its own work. The city may
choose either to have the permittee restore the surface and subgrading portions of right-of-way or
to restore the surface portion of right-of-way itself.
(a) City Restoration. If the city restores the surface portion of right-of-way,
permittee shall pay the costs thereof within thirty (30) days of billing. If,
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 correcting the defective work.
(b) Permittee Restoration. If the permittee restores the right-of-way itself, it
shall at the time of application for an Excavation permit post a
construction performance bond in accordance with the provisions of
Minnesota Rule 7819.3000.
(c) Degradation fee 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
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the degradation fee shall not include the cost to accomplish these
responsibilities.
Subd. 3. Standards. The permittee shall perform patching and restoration according to
the standards and with the materials specified by the city and shall comply with Minnesota Rule
7819.1100.
Subd. 4. Duty to Correct Defects. The permittee shall correct defects in patching, or
restoration performed by permittee or its agents. permittee upon notification from the city, shall
correct all restoration work to the extent necessary, using the method required by the city. Said
work shall be completed within five (5) calendar days of the receipt of the notice from the city,
not including days during which work cannot be done because of circumstances constituting
force majeure or days when work is prohibited as unseasonal or unreasonable under Section
19B-16.
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, or fails to satisfactorily and timely complete all
restoration required by the city, 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. If permittee fails to pay as required, the city may exercise its rights under the construction
performance bond.
Sec. 19B-14. 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. Shared 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. In order to obtain a joint permit, registrants must agree among themselves
as to the portion each will pay and indicate the same on their applications.
Subd. 3. 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 excavation or obstruction and
degradation portions of the permit fee, but a permit would still be required.
Sec. 19B-15. 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.
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•
Subd. 2. Limitation on Dates. 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 submitted before the permit end date.
Sec. 19B-16. Other Obligations.
Subd. 1. 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
(Gopher 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, regardless of who does the work.
Subd. 2. Prohibited Work. Except in an emergency, and with the approval of the city,
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. 19B-17. Denial of Permit.
The city may deny a permit for failure to meet the requirements and conditions of this chapter or
if the city determines that the denial is necessary to protect the health, safety, and welfare or
when necessary to protect the right-of-way and its current use.
Sec. 19B-18. Installation Requirements.
The excavation, backfilling, patching and restoration, and all other work performed in the right-
of-way shall be done in conformance with Minnesota Rule 7819.1100 and other applicable local
requirements, in so far as they are not inconsistent with the Minnesota Statutes sections 237.162
and 237.163.
Sec. 19B-19. Inspection.
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Subd. 1. Notice of Completion. When the work under any permit hereunder is
completed, the permittee shall furnish a Completion Certificate in accordance Minnesota Rule
7819.1300.
Subd. 2. Site Inspection. permittee shall make the work-site available to the city 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
section 19B-22.
Sec. 19B-20. 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 (2)
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 chapter for the actions it took in response to the
Emergency.
If the city becomes aware of an emergency regarding a registrant's facilities, the city will attempt
to contact the local representative of each registrant affected, or potentially affected, by the
emergency. In any event, the city 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. Non-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 fee for said permit, pay
double all the other fees required by the city code, deposit with the city the fees necessary to
correct any damage to the right-of-way and comply with all of the requirements of this chapter.
Sec. 19B-21. Supplementary Notification.
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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 city of the accurate information as soon as this
information is known.
Sec. 19B-22. 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 permittee'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 section 19B-19.
Subd. 2. Written Notice of Breach. If the city 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 city 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 city, at his or her discretion, to
place additional or revised conditions on the permit to mitigate and remedy the breach.
Subd. 3. Response to Notice of Breach. Within twenty-four (24) hours of receiving
notification of the breach, permittee shall provide the city with a plan, acceptable to the city, that
will cure the breach. permittee's failure to so contact the city, or permittee's failure to timely
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 city, or 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 for probation. From time to time, the city may establish a list of
conditions of the permit, which if breached will automatically place the permittee on probation
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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 of city 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. 19B-23. Mapping Data.
Subd. 1. Information Required. Each registrant and permittee shall provide mapping
information required by the city in accordance with Minnesota Rules 7819.4000 and 7819.4100.
Sec. 19B- 24. Undergrounding.
Subd. 1. . Purpose. The purpose of section 19B-24 is to promote the health, safety and
general welfare of the public and is intended to foster (i) safe travel over the right-of-way, (ii)
non-travel related safety around homes and buildings where overhead feeds are connected and
(iii) orderly development in the city. Location and relocation, installation and reinstallation of
Facilities in the right-of-way must be made in accordance with this section.
Subd. 2. Undergrounding of Facilities. Facilities placed in the public right-of-way
must be located, relocated and maintained underground pursuant to the terms and conditions of
this section and in accordance with applicable construction standards. This section is intended to
be enforced consistently with state and federal law regulating right-of-way users, specifically
including but not limited to Minnesota Statutes, sections 161.45, 237.162, 237.163, 300.03,
222.37, 238.084 and 216B.36 and the Telecommunications Act of 1996, Title 47, USC section
253.
Subd. 3. Undergrounding of New Facilities. A new Facility or a permanent extension
of Facilities must be installed and maintained underground when supplied to:
(a) a new installation of buildings, signs, streetlights or other structures;
(b) a new subdivision of land; or
(c) a new development or industrial park containing new commercial or
industrial buildings.
Subd. 4. Undergrounding of Permanent Replacement, Relocated or Reconstructed
Facilities. The city may require a permanent replacement, relocation or reconstruction of a
Facility of more than 300 feet to be located, and maintained underground, with due regard for
seasonal working conditions. For purposes of this section, reconstruction means any substantial
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repair of or any improvement to existing Facilities. Undergrounding may be required whether a
replacement, relocation or reconstruction is initiated by the right-of-way user owning or
operating the Facilities, or by the city in connection with (1) the present or future use by the city
or other local government unit of the right-of-way for a public project, (2) the public health or
safety, or (3) the safety and convenience of travel over the right-of-way.
Subd. 5. Retirement of Overhead Facilities. The city council may determine whether it
is in the public interest that all Facilities within the city, or within certain districts designated by
the city, be permanently placed and maintained underground by a date certain or target date,
independently of undergrounding required pursuant to sections 19B-24, subdivision 3 (new
Facilities) and 19B-24, subdivision 4 (replacement Facilities) of this Code. The decision to
underground must be preceded by a public hearing, after published notice and written notice to
the utilities affected. (Two weeks published: 30 days written.) At the hearing the council must
consider item (1) — (4) in section 19B-24, subdivision 8 of this Code and make findings.
Undergrounding may not take place until city council has, after hearing and notice, adopted a
plan containing items (1)—(6) of section 19B-24, subdivision 9of this Code.
Subd. 6. Public Hearings. A hearing must be open to the public and may be continued
from time to time. At each hearing any person interested must be given an opportunity to be
heard. The subject of the public hearings shall be the issue of whether Facilities in the right-of-
way in the city, or located within a certain district, shall all be located underground by a date
certain. Hearings are not necessary for the undergrounding required under section 19B-24,
subdivision 8 of the City Code.
Subd. 7. Public Hearing Issues. The issues to be addressed at the public hearings
include but are not limited to:
(1) The costs and benefits to the public of requiring the undergrounding of all
Facilities in the right-of-way.
(2) The feasibility and cost of undergrounding all Facilities by a date certain
as determined by the city and the affected utilities.
(3) The tariff requirements, procedure and rate design for recovery or
intended recovery of incremental costs for undergrounding by the utilities
from ratepayers within the city.
(4) Alternative financing options available if the city deems it in the public
interest to require undergrounding by a date certain and deems it
appropriate to participate in the cost otherwise borne by the ratepayers.
Upon completion of the hearing or hearings, the city council must make written findings on
whether it is in the public interest to establish a plan under which all Facilities will be
underground, either citywide or within districts designated by the city.
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Subd. 8. Undergrounding Plan. If the council finds that it is in the public interest to
underground all or substantially all Facilities in the public right of way, the council must
establish a plan for such undergrounding. The plan for undergrounding must include at least the
following elements:
(1) Timetable for the undergrounding.
(2) Designation of districts for the undergrounding unless, undergrounding
plan is citywide.
(3) Exceptions to the undergrounding requirement and procedure for
establishing such exceptions.
(4) Procedures for the undergrounding process, including but not limited to
coordination with city projects and provisions to ensure compliance with
non-discrimination requirements under the law.
(5) A financing plan for funding of the incremental costs if the city determines
that it will finance some of the undergrounding costs, and a determination
and verification of the claimed additional costs to underground incurred by
the utility.
(6) Penalties or other remedies for failure to comply with the undergrounding.
Subd. 9. Facilities Location. In addition to complying with the requirements of
Minnesota Statutes, section 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 vertical placement of all said facilities. Any
registrant whose facilities are 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. 19B-25. Damage to Other facilities.
When the city does work in the right-of-way and finds it necessary to maintain, support, or move
a registrant's facilities to protect it, the city 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. 19B-26. Right-of-Way Vacation.
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Reservation of right. If the city vacates a right-of-way which contains the facilities of a
registrant, the registrant's rights in the vacated right-of-way are governed by Minnesota Rules
7819.3200.
Sec. 19B-27. Indemnification and Liability
By registering with the city, or by accepting a permit under this chapter, a registrant or permittee
agrees to defend and indemnify the city in accordance with the provisions of Minnesota Rule
7819.1250.
Sec. 19B-28. Abandoned and Unusable Facilities.
Subd. 1. Discontinued Operations. A registrant who has determined to discontinue all
or a portion of its operations in the city must provide information satisfactory to the city that the
registrant's obligations for its facilities in the right-of-way under this chapter have been lawfully
assumed by another registrant.
Subd. 2. Removal. Any registrant who has abandoned facilities in any right-of-way
shall remove it from that right-of-way if required in conjunction with other right-of-way repair,
excavation, or construction, unless this requirement is waived by the city.
Sec. 19B-29. Appeal.
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 timely written request at its next regularly scheduled meeting. A decision
by the city Council affirming the denial, revocation, or fee imposition will be in writing and
supported by written findings establishing the reasonableness of the decision.
Sec. 19B-30. 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. 19B-31. Severability.
If any section, subsection, sentence, clause, phrase, or portion of this chapter 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 chapter or any portions of this chapter is illegal or unenforceable,
then any such permit, right or registration granted or deemed to exist hereunder shall be
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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 chapter precludes the city from requiring a franchise agreement
with the applicant, as allowed by law, in addition to requirements set forth herein.
Sec. 2. This ordinance shall be effective the day following its publication.
Adopted this day of , 1999.
John Denzer, Mayor
Attest:
Caron Stransky, City Clerk
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