HomeMy WebLinkAbout06/27/2000 TENTATIVE AGENDA
CITY OF SHAKOPEE
REGULAR ADJOURNED SESSION SHAKOPEE, MINNESOTA JUNE 27, 2000
LOCATION: 129 Holmes Street South
Mayor Jon Brekke presiding
1] Roll Call at 5:00 p.m.
2] Pledge of Allegiance
3] Approval of Agenda
4] New Business
A] Presentation of City Facilities Study by JEA Architects (5:00 pm)
B] Preliminary Discussion of Proposed Right-of-Way Ordinance (6:00 pm)
5] Other Business
6] Adjourn
I
CITY OF SHAKOPEE
Memorandum
TO: Mayor and City Council
FROM: Mark McNeill, City Administrator
SUBJECT: June 27th Workshop Meeting
DATE: June 22, 2000
There will be two items of discussion on the agenda at the June 27th meeting:
1. City Facilities Study
In November, 1999,the City Council authorized a study of City facilities for
space needs analysis. This included City Hall,the Police Station, Public Works,
the Downtown Fire Station, and the SPUC building (the latter to determine its
feasibility to be remodeled for other City uses).
Included in this study was directive from staff to do space needs for the next ten
years, so as to get an idea of what would be needed for interim costs for the CIP.
JEA also did site analyses of each of the structures for possible reuse or
expansion.
The recent discussion of a City campus will change some of the site discussion.
Following the June 6th City Council meeting, I directed the architect to look at the
Community Center site to determine how much additional building construction
could go on that location. He will have commentary on that as well.
Recently, I've been contacted by one downtown business owner who feels the
City should really look at other locations in the downtown to keep City Hall and
the Library in the downtown area. A couple of the locations that he suggested
include property along the river. We had done a short analysis of what was in the
100 and 500-year flood plains, and did not find a lot of buildable property ouside
of that area. Potentially,through site clearance, larger properties could be made
available,but that activity increases the costs significantly. It was also suggested
that the City look more carefully at the Fuller Street parking lot site (which had
been of interest to the Southwest Suburban Publishing). That site (for the amount
of square footage that the City will ultimately need)is very small, especially when
considering parking requirements.
The location issue will be a source of concern for many people until a decision is
finally made.
Jack Anderson will be present to go over his report. I have told him that we will
probably want to spend no more than an hour on this.
2. Right-of-Way Ordinance
A public meeting is scheduled for the July 5th City Council meeting, at which time
utilities will have an opportunity to discuss their concerns about the proposed
right-of-way ordinance. However, it was suggested that the City Council should
take some time at this workshop meeting so that it can get up to speed on the
issues in advance of that meeting.
Bruce Loney has been working on this with attorneys from Kennedy and Graven,
Bob Vose of Kennedy and Graven will be in attendance at the meeting(I have
told them to come at about 6:00 pm). He is experienced in ROW matters.
The ordinance,which is being proposed, is based on the League of Minnesota
Cities and Suburban Rate Authority negotiated model. Also attached are
comments that have been received from Minnegasco on the subject.
Lk ' J /
Mark McNeill
City Administrator
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MEMORANDUM
TO: Bruce Loney
FROM: Jim. Strommen
DATE: June 22, 2000
RE: ROW Ordinance Executive Summary
This is a comprehensive right-of-way (ROW) management ordinance based on the League of
Minnesota Cities model ordinance developed following the 1997 ROW state legislation(Minn. Stat.
§§ 237.162, 237.163) and 1998-1999 ROW rulemaking before the Public Utilities Commission,
codified in Minnesota Rules Parts 7819.0050 et seq. It reflects federal and state law requirements
that telecommunications ROW users be given equal access and non-discriminatory treatment by
local bodies controlling the ROW. Minnesota law arguably places a broader requirement than
federal law for equal access and non-discriminatory treatment to include gas and electric utilities as
well as telecommunications providers. Finally, local government units must treat themselves in the
same manner as other ROW users through the allocation of costs and other management
considerations.
Accordingly, the purpose of this ROW ordinance is to establish uniform ROW procedures for all
ROW users to install, maintain, operate and remove facilities and to pay the City's cost of ROW
management. This ordinance is distinguishable from a franchise that would be separately
negotiated between the City and a gas and electric utility or a cable company. A franchise could
either incorporate these ordinances or modify them, to the extent such provisions do not delegate
away a city's police power to manage the ROW.
Subds. 4-11----Management Procedure
These provisions establish the process of ROW management and supervision through registration,
reporting and permit requirements for excavation or obstruction in the ROW.
Subd. 12—Fees
By law, the fees are limited to recovery of the cost incurred by the City in ROW management,
including administrative costs. Other cities have established schedules and the City is free to adopt
schedules annually by resolution. Note, however, that the municipal utility must be charged its
share of the fees in the same manner as the other ROW users. Theoretically, if the City were
responsible for 90% of the ROW management and repair costs, that 90% could not be charged to
the non-City ROW users but rather must be allocated to the City. If SPUC were responsible for the
90%in the example it would be required to pay that amount to the City because of SPUC's separate
accounting for its operations. The City need not pay itself,however, for ROW work that is done in
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the normal course of its operations. If the City incurs costs because of the use of the ROW by non-
City ROW users, that is to be recovered in permit fees. Note the excavation permit fee takes into
consideration the cost of management and degradation of the ROW. The obstruction permit fee
involves only management costs when an obstruction, e.g., a road detour, occurs.
Subd. 13—Patching and Restoration
This provision, together with the engineering plates adopted as part of the Rules, establishes the
requirement that the ROW user must restore the ROW to the previous condition. This requirement
is based on specific requirements set forth in the Plates. If the ROW user chooses not to restore the
ROW itself, it must provide a degradation fee to the City in lieu of the self-restoration.
Subds. 17 and 22 Denial or Revocation of Permits
This establishes the right of the City to deny or revoke permits under circumstances affecting health,
safety and welfare or other failure of the permittee to perform.
Subd. 24 Undergrounding
This incorporates and complements existing undergrounding provisions previously enacted by the
City. The City already has a requirement that all new facilities be placed underground. Therefore,
Subd. 24 does not address that. Subd. 24.0 provides that if certain criteria are met, previously
installed overhead lines would be placed underground when a public improvement project is
undertaken. Under 24.D., the City Council could commence a public hearing process that would
result in a series of findings on the issue of retirement of overhead facilities over time. This is
discretionary and would only be commenced if the Council thought it was appropriate. If the
hearing were undertaken and it were determined that overhead should be converted to underground
over time,the Council would establish a comprehensive plan as noted in 24.G.
In sum, existing City ordinance and Subd. 24 cover three situations regarding undergrounding of
utility facilities: 1) new facilities are required to be placed underground; 2) if appropriate, overhead
facilities will be placed underground in conjunction with a public improvement project; and 3)if the
City Council becomes interested in a program whereby overhead facilities would be undergrounded
over time, it may commence the process described in 24.D. and following.
Subd.29—Appeal from Director Decision
When the Director has denied or revoked a registration or a permit,the ROW user may appeal to the
City Council. Upon a final decision by the Council, an ROW permit user would have the right to
appeal to a court or the Public Utilities Commission. Whether the PUC or a court would hear such
an appeal has not been resolved yet and cannot be controlled by these ordinances.
Miscellaneous Provisions
The ROW ordinance also incorporates requirements under Minnesota Rules regarding mapping of
all underground facilities ,indemnification,right-of-way vacation and abandoned facilities.
JMS-180147v1 2
Fourth Series
ORDINANCE NO.
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 7.17 TO THE SHAKOPEE CITY CODE
THE CITY COUNCIL OF THE CITY OF SHAKOPEE MINNESOTA ORDAINS:
Section 1. Chapter 7 of the Shakopee City Code is amended to add a new section to read
as follows:
Sec. 7.17. RIGHT-OF-WAY MANAGEMENT
Subd. 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 enacts this new Section of this code relating to right-of-way permits and
administration. This Section imposes reasonable regulation on the placement and maintenance
of facilities and equipment currently within the City's 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 Section, persons excavating and obstructing the rights-of-way will bear financial
responsibility for their work. Finally, this Section provides for recovery of out-of-pocket and
projected costs from persons using the public rights-of-way.
This Section 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 Section shall also be interpreted consistent with Minnesota Rules 7819.0050 —
7819.9950 where possible. To the extent that any provision of this Section cannot be interpreted
consistently with the Minnesota Rules, the interpretation most consistent with the Act and other
applicable statutory and case law is intended.
Subd. 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 elects pursuant Minnesota Statutes, section 237.163 subdivision 2(b), to
manage rights-of-way within its jurisdiction.
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Subd.3. Definitions. The following definitions apply in this Section of this code. References to
"subdivisions" are unless otherwise specified references to subdivision in this Section.
"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 Shakopee, Minnesota. For purposes of Subdivision 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:
1. Individual project bond;
2. Cash deposit;
3. Security of a form listed or approved under Minnesota Statutes, section. 15.73,
subdivision
4. Letter of Credit, in a form acceptable to the city
5. Self-insurance, in a form acceptable to the city
6. 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.
"Department"means the department of public works of the city.
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"Department Inspector" means any person authorized by the city to carry out inspections related
to the provisions of this Section.
"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 Section, 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.
"Local Representative" means a local person or persons, or designee of such person or persons,
authorized by a registrant to accept service and to make decisions for that registrant regarding all
matters within the scope of this Section.
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"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 Subdivision 29 of this Section.
"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 Section, 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 Subdivision 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 Section.
"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 Section.
"Probationary Period" means one year from the date that a person has been notified in writing
that they have been put on probation
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"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 Section.
"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.
"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 Section, a cable communication system defined and regulated under Minn. Stat.
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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, section. 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 Section.
"Two Year project Plan" shows projects adopted by the city for construction within the next
two years.
Subd. 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.
Subd. 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
Subd. 6. Registration and Right-of-Way Occupancy.
A. 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.
B. 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.
C. Exceptions. Nothing in this Section 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 Section. However,
nothing herein relieves a person from complying with the provisions of the Minnesota Statutes,
chapter 216D, Gopher One Call Law.
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Subd. 7. Registration Information.
A. Information Required. The information provided to the city at the time of
registration shall include, but not be limited to:
(1) Each registrant's name, Gopher One-Call registration certificate number,
address and e-mail address if applicable, and telephone and facsimile
numbers.
(2) 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.
(3) A certificate of insurance or self-insurance:
(a) 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;
(b) 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;
(c) 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;
(d) Requiring that the city be notified thirty (30) days in advance of
cancellation of the policy or material modification of a coverage
term;
(e) Indicating comprehensive liability coverage, automobile liability
coverage, workers compensation and umbrella coverage
established by the city in amounts sufficient to protect the city and
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the public and to carry out the purposes and policies of this
Section.
(4) 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.
(5) Such evidence as the director may require that the person is authorized to
do business in Minnesota.
B. 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.
Subd. 8. Reporting Obligations.
A. Operations. Each registrant shall, at the time of registration and by December 1 of
each year, file a construction and major maintenance plan for underground facilities with the
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:
(1) 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
(2) 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.
B. 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
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city if the registrant has used commercially reasonable efforts to anticipate and plan for the
project.
Subd. 9. Permit Requirement.
A. 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.
(1) 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.
(2) 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.
B. 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.
C. 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.
D. Permit Display. permits issued under this Section shall be conspicuously displayed
or otherwise available at all times at the indicated work site and shall be available for inspection
by the city.
Subd. 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:
(1) Registration with the city pursuant to this Section;
(2) Submission of a completed permit application form, including all required
attachments, and scaled drawings showing the location and area of the
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proposed project and the location of all known existing and proposed
facilities.
(3) Payment of money due the city for:
(a) permit fees, estimated restoration costs and other management
costs;
(b) prior obstructions or excavations;
(c) 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;
(d) franchise fees or other charges, if applicable.
(4) 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.
(5) 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.
Subd. 11. Issuance of Permit; Conditions.
A. Permit Issuance. If the Applicant has satisfied the requirements of this Section, the
city shall issue a permit.
B. 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.
Subd. 12. Permit Fees.
A. 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.
B. Excavation Permit Fee. The city shall establish an Excavation permit fee in an
amount sufficient to recover the following costs:
(1) the city management costs;
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(2) degradation costs, if applicable.
B. Obstruction Permit Fee. The city shall establish the obstruction permit fee and shall
be in an amount sufficient to recover the city management costs.
C. 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.
D. Non Refundable. permit fees that were paid for a permit that the city has revoked for
a breach as stated in Subdivision 22 are not refundable.
E. 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.
Subd. 13. Right-of-Way Patching and Restoration.
A. 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 Subdivision 16.
B. Patch and Restoration. Permittee must 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.
(1) 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.
(2) 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.
(3) 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
the degradation fee shall not include the cost to accomplish these
responsibilities.
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C. 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.
D. 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 Subdivision
16.
E. 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.
Subd. 14. Joint Applications.
A. Joint application. registrants may jointly apply for permits to excavate or obstruct
the right-of-way at the same place and time.
B. 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.
C. 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.
Subd. 15. Supplementary Applications.
A. 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.
B. 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
JJT-182079v2 12
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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.
Subd. 16. Other Obligations.
A. 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.
B. 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.
C. 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.
Subd. 17. Denial of Permit.
The city may deny a permit for failure to meet the requirements and conditions of this Section 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.
Subd. 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.
Subd. 19. Inspection.
A. 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.
B. 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.
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C. Authority of Director.
(1) 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.
(2) 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
Subdivision 22.
Subd. 20. Work Done Without a Permit.
A. 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 Section 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.
B. 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 Section.
Subd. 21. Supplementary Notification.
If the obstruction or excavation of the right-of-way begins later or ends sooner than the date
given on the permit, permittee shall notify the city of the accurate information as soon as this
information is known.
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Subd. 22. Revocation of Permits.
A. Substantial Breach. The city reserves its right 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:
(1) The violation of any material provision of the right-of-way permit;
(2) 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;
(3) Any material misrepresentation of fact in the application for a right-of-
way permit;
(4) 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
(5) 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.
B. 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 to place additional or revised
conditions on the permit to mitigate and remedy the breach.
C. 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.
D. 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 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.
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E. 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.
F. 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.
Subd. 23. Mapping Data. Each registrant and permittee shall provide mapping information
required by the city in accordance with Minnesota Rules 7819.4000 and 7819.4100.
Subd. 24. Undergrounding.
A. Purpose. The purpose of Subdivision 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.
B. 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.
C. Undergrounding of New Facilities. A new Facility or a permanent extension of
Facilities must be installed and maintained underground when supplied to:
(1) a new installation of buildings, signs, streetlights or other structures;
(2) a new subdivision of land; or
(3) a new development or industrial park containing new commercial or
industrial buildings.
D. 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
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.
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E. 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.
F. 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 Subdivision 24(H) of the City
Code.
G. 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.
H. 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.
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(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.
I. 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.
Subd. 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.
Subd. 26. Right-of-Way Vacation.
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.
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Subd. 27. Indemnification and Liability
By registering with the city, or by accepting a permit under this Section, a registrant or permittee
agrees to defend and indemnify the city in accordance with the provisions of Minnesota Rule
7819.1250.
Subd. 28. Abandoned and Unusable Facilities.
A. 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 Section have been lawfully
assumed by another registrant.
B. 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.
Subd. 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.
Subd. 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.
Subd. 31. Severability.
If any section, subsection, sentence, clause, phrase, or portion of this Section 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 Section or any portions of this Section is illegal or unenforceable,
then any such permit, right or registration granted or deemed to exist hereunder shall be
considered as a revocable permit with a mutual right in either party to terminate without cause
upon giving sixty (60) days written notice to the other. The requirements and conditions of such
a revocable permit shall be the same requirements and conditions as set forth in the permit, right
or registration, respectively, except for conditions relating to the term of the permit and the right
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of termination. Nothing in this Section 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 , 2000.
John Denzer, Mayor
Attest:
Caron Stransky, City Clerk
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LEAGUE OF MINNESOTA CITIES
CITY ENGINEERS ASSOCIATION OF MINNESOTA
MODEL RIGHT-OF-WAY MANAGEMENT ORDINANCE
COMMENTS
Sec . 1 . 01 . .. ' .• - s. • .• -
It has not been proven that an excavation in the street, if done
properly, has any detrimental effect on the street . In fact, once
the street has been seal coated it is difficult to find the patch.
Minnesota Statute 237 . 163 . Subd. 6 . indicates that fees be based
on actual costs and be based on an allocation to all users of the
right-of-way, including the Local Government Unit .
Sec . 1 . 03 . Definitions
Bond.
Minnegasco suggests that the city consider a multi-year
continuing bond if it is found that a bond is necessary.
Degradation cost .
i . Costs will be different if utility rather than city
completes the restoration.
ii . Plates as developed are maximums. Minnesota Statute
237 . 163 . indicates that the right-of-way be returned to the
condition that existed before the excavation.
Patch or Patching.
See comment above. A patch, if done correctly, will, in most
cases, return the street to the condition that existed prior
to the excavation.
Probation or Probationary Period. These are not part of the
PUC State-Wide Rules .
Sec. 1 . 07 . Registration Information
(b) Local Representative. Minnegasco has local representatives
for several different functions. While some of these functions
overlap, it is unreasonable to expect them all to be available at
all times. Minnegasco has an emergency phone number for those
occurrences .
Sec. 1 . 08 . :- .• ' .• •. ' •. •.
Minnegasco' s distribution systems within many of the Cities are in
place and well established. Any projects on our system will be in
conjunction with a city project . System expansion projects, if
and when they occur, are customer driven. In most cases the city
will know about the need before we do.
Gas utilities usually use the winter months to collect and
evaluate system pressure and flow data. We would not know of a
need to reinforce our system, if required, until at least March.
Sec . 1 . 09 . •- is ' :-. -„- . -
Subd. 2 . Permit Extension. This requirement is overly burdensome
on both the director and the utility. The director should be able
to' waive the requirements for cause.
Subd. 3 . Delay Penalty. The director should be able to waive the
requirements for cause .
Minnegasco would like to continue the current procedure of
informing most Cities monthly about work completed within the City
on service lines and other existing facilities . If required, fees
can be paid with the notification or when invoiced. We currently
do this in most Cities .
Sec. 1 . 13 . Right-of-Way Patchi . _nd Restoration
Subd. 2 . Patch and Restoration. Minnegasco prefers to restore its
excavations. We question whether the city even wants to be
involved in restoring our work.
Sec. 1 . 15 . Supplementary A 1 i ca1-icni
This section again is overly burdensome on both the director and
the utility. See comments under Sec. 1 . 08 .
Sec. 1 . 16 . Other ObligationR
Subd. 2 . Prohibited work. Except in an Emergency, or with the
approval of the Director, no Right-of-Way obstruction or
excavation may be done when seasonally prohibited or when
conditions are unreasonable for such work. A new home or business
may require service.
Subd. 3 . Interference with Right-of-Way. A Permittee shall not
interfere with the natural free and clear passage of water through
the gutters or other waterways. Personal vehicles of those doing
work in the Right-of-Way may not be parked within or next to a
permit area, unless parked in conformance with City parking
regulations . The loading or unloading of trucks must be done
solely within the defined permit area unless specifically
authorized by the permit .
Sec . 1 . 17 . Denial of rmit
The Director must be extremely careful in denying permits. The
Minnesota Supreme Court has ruled that private utilities such as
gas, electric, and telephone have as much right to use the Right-
of-Way as sewer or water utilities. If a permit is denied, the
director must inform the applicant of the reasons for the denial .
Sec . 1 . 19 . Tnspectiorl
Subd. 1 . Notice of Completion. If the city needs and/or wants a
completion certificate we will be happy to comply. In most cases
the city will know when we are completed before Minnegasco ' s
office staff.
Sec . 1 .22 . Revocation of rmits
Subd. 1 . Substantial Breach. 3rd line: . . . applicable statute,
ordinance, rule or regulation, . . .
Subd. 2 . Written Notice of Breach. The last sentence is not
needed. The director cannot add additional installation
conditions on a gas utility other than restoration. If we are
already restoring to the previous condition, by law, what more can
be done.
Subd. 3 . Response to notice of breach. It may be impossible to
develop a plan to cure a breach within twenty-four (24) hours . A
Permittee should be able to contact the director within twenty-
four (24) hours to start the plan process with the Director.
Subds. 4 and 5 . Probation and Revocation. While Minnegasco does
not intend to ever have a revocation or require probation, these
actions are not part of PUC rules .
Sec . 1 . 24 . Location and Relo a ion of a ili i
Placement of facilities in a particular location within the Right-
of-Way must take into account the current and anticipated uses of
the Right-of-Way and the distinct engineering, construction,
operation, and maintenance characteristics of each type of use.
We would object to relocating facilities not in direct conflict
with grade changes or other infrastructure conflicts that could be
avoided. The facilities we have in the right-of-way have a right
to be there. In addition property taxes are paid on these
facilities . Concern for continued cost effective service is
required.
Sec . 1 . 25 . • -- •. . 4. - • . ..
Minn. Stat . §216D provides adequate regulation for pre-excavation
facility locations . Regardless of depth hand digging by an
excavator to expose the facility is still required by Minnesota
Statutes §216D. 01- . 09 .
Current buried facility locating technology does not allow for
accurate depth locations. The excavator must plan on hand
digging to expose any indicated buried facility.
The City of Minneapolis is using the following based on comments
from not only Minnegasco but also the other utilities :
Pre-excavation facility 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
located in the area to be excavated shall be responsible to mark .
the horizontal placement of all said facilities. To the extent
its records contain such information, each registrant shall
provide information regarding the approximate vertical location
of facilities to excavators upon request. Nothing in this
subsection is meant to limit the rights, duties and obligations
of the facility owners or excavators as set forth in Minnesota
Statutes, section 216D. 01- . 09.
Any right-of-way user whose facilities are less than twenty (20)
inches below a concrete or asphalt surface shall notify and work
closely with the excavation contractor in an effort to establish
and mark the exact horizontal and vertical location of its
facility and the and the best procedure for excavation.
Sec. 1 .26 . Damage to O h r a ili i s
Minnegasco has always assisted cities in locating, supporting, and
or moving or looping our facilities and will continue to do so.
We object to charges for work on sewer or water as they are also
users of the Right-of-Way. If the city is excavating in the
Right-of-Way as a management function we will assist and depending
on the circumstances may accept costs .
Secs . 1 .27 and 1 .28
Please refer to franchise agreements .
Sec . 1 . 29 . Abandoned and nubl a ili i s
Minnegasco has been installing and abandoning facilities in its
distribution system for over 100 years . Some of these facilities
have been abandoned in place with no adverse effects . Removing
buried facilities that have been abandoned along most streets will
delay both the city' s project and Minnegasco ' s.
This portion of the LMC Model Ordinance was written in response to
the Telephone Industry Deregulation. Removing abandoned natural
gas facilities may be appropriate for heavily traveled or high
density Rights-of-Way. It is not necessary for residential
streets nor is it a fire or safety hazard.
CITY OF SHAKOPEE nott.124o
Memorandum
TO: Mayor& City Council
Mark McNeill, City Administrator
FROM: Bruce Loney, Public Works Director
SUBJECT: Revised Right-of-Way Management Ordinance
DATE: June 26, 2000
NON-AGENDA INFORMATIONAL ITEM:
Please find a revised proposed ordinance for managing the City's right-of-way. An older
revision was inadvertently included in the Council's packet for June 27, 2000. The
revised proposed ordinance also has the restoration plates as developed by the Public
Utilities Commission and referred to by reference.
If you have any questions on this letter or the enclosure,please contact me in my office.
Bruce Loney
Public Works Director
BL/pmp
ROW
Latest 6-22-00
ORDINANCE NO. , FOURTH SERIES,
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 7.17 TO THE SHAKOPEE CITY CODE
THE CITY COUNCIL OF THE CITY OF SHAKOPEE MINNESOTA ORDAINS:
Section 1. The Shakopee City Code is amended to add a new Section 7.17 to read as
follows:
Sec. 7.17. RIGHT-OF-WAY MANAGEMENT
Subd. 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 enacts this new Section of this code relating to right-of-way permits and
administration. This Section imposes reasonable regulation on the placement and maintenance
of facilities and equipment currently within the City's 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 Section, persons excavating and obstructing the rights-of-way will bear financial
responsibility for their work through the recovery of out-of-pocket and projected costs from
persons using the public rights-of-way.
This Section shall be interpreted consistently with 1997 Session Laws, Chapter 123, substantially
codified in Minnesota Statutes Sections 237.16, 237.162. 23 7.163, 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 Section shall also be interpreted consistent with Minnesota Rules 7819.0050 —
7819.9950 where possible. To the extent that any provision of this Section cannot be interpreted
consistently with the Minnesota Rules, the interpretation most consistent with the Act and other
applicable statutory and case law is intended.
Subd. 2. Election to 1VIanage the Public Rights-of-Way
Pursuant to the authority granted to the city under state and federal statutory, administrative and
common law, the city elects pursuant Minnesota Statutes, section 237.163 subdivision 2(b), to
manage rights-of-way within its jurisdiction.
Subd.3. Definitions. The following definitions apply in this Section of this code. References to
"subdivisions" are unless otherwise specified references to subdivisions in this Section.
1JT-1320792 1
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"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 Shakopee, Minnesota. For purposes of Subdivision 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:
1. Individual project bond;
2. Cash deposit;
3. Security of a form listed or approved under Minnesota Statutes, section. 15.73,
subdivision
4. Letter of Credit, in a form acceptable to the city
5. Self-insurance, in a form acceptable to the city
6. 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
�iu rada.a
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.
"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 Section.
LIT-182079v2 2
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"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 Section, 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 Subdivision permit fee" means money paid to the city by an applicant to cover the
costs as provided in Subdivision 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.
"Local Representative" means a local person or persons, or designee of such person or persons,
authorized by a registrant to accept service and to make decisions for that registrant regarding all
matters within the scope of this Section.
"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
JJT-182079v2 3
SH155-23
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 Subdivision 29 of this Section.
"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 Section, 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 Subdivision 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 richt-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 Section.
individualsubject the laws rales } 1 eve r
"Person" means an or entity subj�c� to and ,.les 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 Section.
"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 Minnesota Statutes, section 237.162,
subdivision 3.
JJT-182079v2 4
5H155-23
"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 Rule 7819.1100 Subpart 1, on file
with the Director .
"Right-of-Way Permit" means either the excavation permit or the obstruction permit, or
both, depending on the context, required by this Section.
"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 (I) 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.
"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 Section, 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, section. 216B.02,
11T-182079v2 5
SI-1155-.3
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 Section.
"Two Year project Plan" shows projects adopted by the city for construction within the next
two years.
Subd. 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.
Subd. 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
Subd. 6. Registration and Right-of-Way Occupancy.
A. 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.
B. 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.
C. Exceptions. Nothing in this Section 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 Section. However,
nothing herein relieves a person from complying with the provisions of the Minnesota Statutes,
chapter 216D, Gopher One Call Law.
JJT-182079v2 6
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Subd. 7. Registration Information.
A. Information Required The information provided to the city at the time of
registration shall include, but not be limited to:
(1) Each registrant's name, Gopher One-Call registration certificate number,
address and e-mail address if applicable, and telephone and facsimile
numbers.
(2) 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.
(3) A certificate of insurance or self-insurance:
(a) 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;
(b) 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;
(c) 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;
(d) Requiring that the city be notified thirty (30) days in advance of
cancellation of the policy or material modification of a coverage
term;
(e) Indicating comprehensive liability coverage, automobile liability
coverage, workers compensation and umbrella coverage
established by the city in amounts sufficient to protect the city and
JJT-182079v2 7
SH 155-23
the public and to carry out the purposes and policies of this
Section.
(4) 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.
(5) Such evidence as the director may require that the person is authorized to
do business in Minnesota.
B. 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.
Subd. 8. Reporting Obligations.
A. Operations. Each registrant shall, at the time of registration and by December 1 of
each year, file a construction and major maintenance plan for underground facilities with the
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:
(1) 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
(2) 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 l 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.
B. 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
JJT-182079v2 8
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city if the registrant has used commercially reasonable efforts to anticipate and plan for the
project.
Subd. 9. Permit Requirement.
A. 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.
(1) 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.
(2) 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.
B. 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.
C. 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.
D. Permit Display. permits issued under this Section shall be conspicuously displayed
or otherwise available at all times at the indicated work site and shall be available for inspection
by the city.
Subd. 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:
(1) Registration with the city pursuant to this Section;
(2) Submission of a completed permit application form, including all required
attachments, and scaled drawings showing the location and area of the
!1T-l82O w? 9
SH l»-_23
proposed project and the location of all known existing and proposed
facilities.
(3) Payment of money due the city for:
(a) permit fees, estimated restoration costs and other management
costs;
(b) prior obstructions or excavations;
(c) 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;
(d) franchise fees or other charges, if applicable.
(4) 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.
(5) 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.
Subd. 11. Issuance of Permit; Conditions.
A. Permit Issuance. If the Applicant has satisfied the requirements of this Section, the
city shall issue a permit.
B. 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.
Subd. 12. Permit Fees.
A. 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.
B. Excavation Permit Fee. The city shall establish an Excavation permit fee in an
amount sufficient to recover the following costs:
(1) the city management costs;
JJT-182079v2 10
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(2) degradation costs, if applicable.
B. Obstruction Permit Fee. The city shall establish the obstruction permit fee and shall
be in an amount sufficient to recover the city management costs.
C. 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.
D. Non Refundable. permit fees that were paid for a permit that the city has revoked for
a breach as stated in Subdivision 22 are not refundable.
E. 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.
Subd. 13. Right-of-Way Patching and Restoration.
A. 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 Subdivision 16.
B. Patch and Restoration. Permittee must 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.
(1) 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.
(2) 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.
(3) 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
the degradation fee shall not include the cost to accomplish these
responsibilities.
LIT-182079v2 11
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C. 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.
D. 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 Subdivision
16.
E. 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.
Subd. 14. Joint Applications.
A. Joint application. registrants may jointly apply for permits to excavate or obstruct
the right-of-way at the same place and time.
B. 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.
C. 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.
Subd. 15. Supplementary Applications.
A. 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.
B. 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
JJT-182079v2 12
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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.
Subd. 16. Other Obligations.
A. 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.
B. 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.
C. 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.
Subd. 17. Denial of Permit.
The city may deny a permit for failure to meet the requirements and conditions of this Section 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.
Subd. 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.
Subd. 19. Inspection.
A. 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.
B. 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.
JJT-182079v2 13
5H155-23
C. Authority of Director.
(1) 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.
(2) 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
Subdivision 22.
Subd. 20. Work Done Without a Permit.
A. 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 Section 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.
B. Von-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 Section.
Subd. 21. Supplementary Notification.
If the obstruction or excavation of the right-of-way begins later or ends sooner than the date
given on the permit, permittee shall notify the city of the accurate information as soon as this
information is known.
JJT-182079v2 14
SH1»-23
Subd. 22. Revocation of Permits.
A. Substantial Breach. The city reserves its right 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:
(1) The violation of any material provision of the right-of-way permit;
(2) 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;
(3) Any material misrepresentation of fact in the application for a right-of-
way permit;
(4) 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
(5) 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.
B. 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 to place additional or revised
conditions on the permit to mitigate and remedy the breach.
C. 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.
D. 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 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.
JJT-182079v2 15
SH155-23
E. 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.
F. 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.
Subd. 23. Mapping Data. Each registrant and permittee shall provide mapping information
required by the city in accordance with Minnesota Rules 7819.4000 and 7819.4100.
Subd. 24. Undergrounding.
A. Purpose. The purpose of Subdivision 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.
B. 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, U.S.C. section
253.
C. Undergrounding of Permanent Replacement, Relocated or Reconstructed
Facilities. If the City finds that one or more of the purposes set forth in Subd. 24.A. would be
promoted, 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
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.
D. Retirement of Overhead Facilities. The city council may determine whether it is in
the public interest that all Facilities within the city, or Facilities 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 Section 4.35 of this Code
(new Facilities) and subdivision 24.C. (replacement Facilities). 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
items (1) — (4) in subdivision 24.F. of this Section and make findings. Undergrounding may not
JJT-182079v2 16
SH 155-23
take place until city council has, after hearing and notice, adopted a plan containing items (1) —
(6) of subdivision 24.G. of this Section.
E. 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 Subdivision 24.C. of this
Section.
F. 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.
G. 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 the undergrounding
plan is citywide.
(3) Exceptions to the undergrounding requirement and procedure for
establishing such exceptions.
JJT-182079v2 17
SH 1»-23
(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.
H. 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.
Subd. 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.
Subd. 26. Right-of-Way Vacation.
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.
Subd. 27. Indemnification and Liability
By registering with the city, or by accepting a permit under this Section, a registrant or permittee
agrees to defend and indemnify the city in accordance with the provisions of Minnesota Rule
7819.1250.
Subd. 28. Abandoned and Unusable Facilities.
A. 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
11T-182079%2 18
SHl»-23
registrant's obligations for its facilities in the right-of-way under this Section have been lawfully
assumed by another registrant.
g
B. 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.
Subd. 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.
Subd. 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.
Subd. 31. Severability.
If any section, subsection, sentence, clause, phrase, or portion of this Section 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 Section or any portions of this Section is illegal or unenforceable,
then any such permit, right or registration granted or deemed to exist hereunder shall be
considered as a revocable permit with a mutual right in either party to terminate without cause
upon giving sixty (60) days written notice to the other. The requirements and conditions of such
a revocable permit shall be the same requirements and conditions as set forth in the permit, right
or registration, respectively, except for conditions relating to the term of the permit and the right
of termination. Nothing in this Section 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 is effective from and after its passage and publication.
JJT-182079v2 19
SH155-23
ti
Adopted in session of the City Council of the City of Shakopee, Minnesota,
held this day of , 2000.
Mayor of the City of Shakopee
Attest:
City Clerk
JJT-182079v2 20
SH 155-23
.04/19/99 [REVISOR] RR/KS AR2986ST
p
1 7819.9900 UTILITY TRENCH RESTORATION; PLATES 1 AND 2.
2 Subpart 1. Plate 1.
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7819.9900 18
•04/19/99 [REVISOR] RR/KS AR2986ST
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7819.9900 19
. . 04/19/99 [REVISOR] RR/KS AR2986ST
1 7819.9905 UTILITY TRENCH RESTORATION; PLATES 3 AND 4.
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7819.9905 20
.. 04/19/99 04/19/99 [REVISOR] RR/KS AR2986ST
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7819.9905 21
' 04/19/99 [REVISOR] RR/KS AR2986ST
1 7819.9910 UTILITY TRENCH RESTORATION; PLATE 5.
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7819.9910 22
04/19/99 [REVISOR] RR/KS AR2986ST
1 7819.9915 UTILITY TRENCH RESTORATION; PLATE 6.
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7819.9915 23
` 04/19/99 [REVISOR] RR/KS AR2986ST
1 7819.9920 UTILITY HOLE RESTORATION; PLATE 7.
flI CAL HOLE EZCAYATION
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Nate 1:Urinous Paremerd
fug Ione replacement of base and binder to the nearest ccnsfrudian joint or transverse crack
fdI street ridth ^vi k mortal 7f wing corse
Note 2:Concrete Pavement
fug panel replacemeat for cancroie Foremen!
Note 3:All Other Types of Surfaces and Pavemenh
•Replaamad nth in—kind materiels
tmLm HOLE RESTORATION t> PLATE 7
TYPICAI. PAVEMENT 0 TO 5 YEARS OLD No Serie
7819.9920 24
04/19/99 [REVISOR] RR/KS AR2986ST
1 7819.9925 UTILITY HOLE RESTORATION; PLATE 8.
TYPICAL 101 EXAJlYANION
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TYPICAL RESTORATION
r— Sired rid(Wax.) -�
lid Gip
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Note 1: Ominous Pavement
•FdR lane replacement of base,binder,and Tearing course
b the rearest =trews;int x!rarsre:a:rack
Note 2:Concrete Pavement
•Fu8 pond replacement for compels pavement
Noh k AAI Other Types of Surfaces and Pavements
*Replacement eh in—kind materials
UTIJI( HOLE RESTORATION PLATE 8
TYPICAL PAVEMENT S YEARS OLD TOS YEAR PROJECT PIAN Daft 7-6-98 No Sole
7819.9925 25
., ' 04/19/99 [REVISOR] RR/KS AR2986ST
• 1 7819.9930 UTILITY HOLE RESTORATION; PLATE 9.
TYPICAL HOLE EXCAVA1TON
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TYPICAL RESTORATION
Street Width (Was.) _..
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Note t: 8'ihenllous Pavement
•Replace base, binder and wearing course for width of hole plus 2 ft. on either side of cut
Note 2: Concrete Palmed
•Ripiore with of hole plus Z ft. on eilher side of cut
Note 3: Alt Other Types of Surfaces and Pavements
•Reptoce ridth of hole plus 2 ft. on ether side of cut
UfiuTT HOLE RESTORATfON IN 5 YEARp 7-i-9ti PLATE 9
PROJECT PIAN OR UTAITT HOLE PATCH N°Scale
7819.9930 26
04/19/99 [REVISOR] RR/KS AR2986ST
1
1 7819.9935 UTILITY HOLE RESTORATION; PLATE 10
UPICAL HOLE EX AYATION
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Note 1:5110111:11A Payment
ilepface base, binder and Tearing course for vidfh of hak only
Note 2:Concrete Penman
•Replace width of hole only
Note 3:All Other Types of Surfaces and Foments
.Replacement v h in—kind materials for ridlh of hole only
UTIUPf HOLE RESTORATION 7+98PLATE 10
OakTYPICAL PAVOOT IN 2 YEAR PROJECT PUN OR TEMPORARY SURFACE No SaM
7819.9935 27
04/19/99 [REVISOR] RR/KS AR2986ST
1 7819.9940 TYPICAL ROAD PLAN; PLATE 11.
1 I 13
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other construction methods are approved by the Local Governmental Unlit
TYPICAL ROAD PUN Ode 74-98 PLATE 11
Mo Sea
7819.9940 28
r 04/19/99 [REVISOR] RR/KS AR2986ST
1 7819.9945 TYPICAL ROAD RESTORATION; PLATE 12.
Section A—A
Section A—A
Restore Gravel Surface Restore Gravel Surface
Trench Plow
Grog%vele food Wow f♦
des4 Comport stink b
engird detwal
Section 11-8
Restore Gravel Surface
(Floe or Trench)
1 J r ` rt—
i or grater
Coanngidrtde to
Section C-C
Full Panel Restoration: Concrete or Bituminous 0 1, ay Si. or Path
Note 1: Restore all surfaces to original condition Milk
in-kind materials (imported or found on site)
TYPICAL ROAD, DRIVEWAY, OR PATH RESTORATION Dalt 9-25-98 PLATE 12
Mo ScoN
•
7819.9945
29
[ .. . . ' " 04/19/99 [REVISOR] RR/KS AR2986ST
•
1 7819.9950 TYPICAL ROAD SHOULDER RESTORATION; PLATE 13.
Trench Installation Restore shoulder to
oorriigginal cancition with
L
mos
IRepce subgrode wh
1 a greaterapproved compacted til
Trench —
Compact subgrade to
original density
Plow Installation Restore shoulder
c to original condition with
L in—kind materials
I Too sal
I seed and/or sod
t I Plow
1 or greatu I (\
0
Compact sabgrnde to
original density
Note 1: Restore all surfaces to original condition with
in—kind materials (imported or found on site)
TYPICAL ROAD SHOULDER RESTORATION9-7548 13
Section 0-0 Ito Scale
30