(A) Purpose.
(1) The city holds the right-of-way within its geographical boundaries as an asset in trust for its citizens. The city and other public entities have invested substantial dollars in public funds to build and maintain the right-of-way. The city also recognizes that by placing other utility equipment in the right-of-way for the purpose of delivering services to the citizens of the city also is a public use of this property for the public good. Although such services are necessary or convenient for the citizens, other persons or entities receive revenue and/or profit through their use of public property. Although the installation of such service delivery facilities are in most cases a necessary and proper use of right-of-way, the city must regulate and manage such uses.
(2) To provide for the health, safety and well-being of its citizens, and to ensure the structural integrity of its streets and the appropriate use of the rights-of-way, the city strives to keep its right-of-way in a state of good repair and free from unnecessary encumbrances. Although the general population bears the financial burden for the upkeep of the right-of-way, one of the causes for the early and excessive deterioration of its right-of-way is frequent excavation.
(3) This section imposes reasonable regulations on the placement and maintenance of equipment currently within its right-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 disturbing and obstructing the rights-of-way will bear a fair share of the financial responsibility for their integrity.
(4) This section shall be interpreted consistently with 1997 Session Laws, Chapter 123, substantially codified in M.S. §§ 237.16, 237.162, 237.163, 237.79, 237.81, and 238.086 (the "Act"), as they may be amended from time to time, and the other laws governing applicable rights of the city and users of the right-of-way. This chapter shall also be interpreted consistent with Minn. Rules parts 7819.0050 through 7819.9950, as they may be amended from time to time, where possible. To the extent any provision of this section cannot be interpreted consistently with the Minnesota Rules, that interpretation most consistent with the Act and other applicable statutory and case law is intended. This section shall not be interpreted to limit regulatory and police powers of the city to adopt and enforce general ordinance necessary to protect the health, safety and welfare of the public.
(B) Election to manage the public rights-of-way. Pursuant to the authority granted to the city under state and federal statutory administrative and common law, the city hereby elects pursuant M.S. § 237.163, subd. 2(b), as it may be amended from time to time, to manage right-of-way within its jurisdiction.
(C) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
APPLICANT. Is the person or entity requesting permission to excavate or obstruct a right-of-way.
CITY. For purposes of this section, CITY means the City of Columbia Heights and its elected officials, officers, employees, agents or any commission, committee or sub-division acting pursuant to lawfully delegated authority.
CITY COST. The actual cost incurred by the city for public rights-of-way management; including but not limited to costs associated with registering applicants; issuing, processing, and verifying right-of-way permit applications; inspecting job sites and restoration projects; maintaining, supporting, protecting, or moving facilities during public right-of-way work; determining the adequacy of right-of-way restoration; restoring work inadequately performed; mapping of "as built" locations of facilities located in rights-of-way; and revoking right-of-way permits and performing all other tasks required by this section, including other costs the city may incur in managing the provisions of this section.
DEGRADATION. The accelerated depreciation of the right-of-way caused by excavation 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 did not occur.
DEGRADATION COST. Money paid to the city to cover the cost associated with a decrease in the useful life of a public right-of-way caused by excavation.
EMERGENCY. A condition that 1) poses a clear and immediate danger to life or health, or of a significant loss of property; or 2) requires immediate repair or replacement in order to restore service to a customer.
EQUIPMENT. Any tangible thing or asset used to install, repair or maintain facilities in any right-of-way; but shall not include boulevard plantings or gardens planted or maintained in the right-of-way between a person's property and the street curb.
EXCAVATE. To dig into or in any way remove or physically disturb or penetrate any part of a right-of-way.
PERMIT. A permit issued pursuant to this section.
PERMIT HOLDER. Any person to whom a permit to excavate or place equipment or facilities in a right-of-way has been granted by the city under this section.
PUBLIC RIGHT-OF-WAY. The area on, below, or above a public roadway, highway, street, cart way, bicycle lane and public sidewalk in which the city has an interest, including other dedicated rights-of-way for travel purposes and utility easements of the city. It shall also include utility easements along side and rear lot lines. A right-of-way does not include the airwaves above a right-of-way with regard to cellular or other non-wire telecommunications or broadcast service.
REGISTRANT. Any person who has or seeks to have its facilities or equipment located in any right-of-way.
RESTORE or RESTORATION. The process by which the right-of-way and surrounding area, including pavement and foundation, is returned to the condition that existed before the commencement of the work.
RESTORATION COST. Money paid to the city by a permittee to cover the cost of restoration.
RIGHT-OF-WAY. The surface and space above and below a public roadway, highway, street, cart way, bicycle lane and public sidewalk in which the city has an interest, including other dedicated rights-of-way for travel purposes and utility easements owned by the city for city utility purposes.
SERVICE or UTILITY SERVICE. Includes but is not limited to 1) those services provided by a public utility as defined in M.S. § 216B.02, subds. 4 and 6. as they may be amended from time to time; 2) telecommunications, pipeline, community antenna television, fire and alarm communications, water, sewer, electricity, light, heat, cooling energy, or power services; 3) the services provided by a corporation organized for the purposes set forth in M.S. § 300.03, as it may be amended from time to time; 4) the services provided by a district heating or cooling system; and 5) cable communications systems as defined in M.S. Chapter 238, as it may be amended from time to time.
TELECOMMUNICATION RIGHT-OF-WAY USER. A person owning or controlling a facility in the public rights-of-way, or seeking to own or control a facility in the public 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 M.S. Chapter 238, as it may be amended from time to times, and telecommunication activities related to providing natural gas or electric energy services are not telecommunications right-of-way users.
(D) Administration. The Public Works Director is the principal city official responsible for the administration of the right-of-way permits, and the ordinances related thereto. The Public Works Director may delegate any or all of the duties hereunder.
(1) Registration requirements.
(a) 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 installations 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) No person shall construct, install, repair, remove, relocate or perform any work within any right-of-way without first being registered pursuant to this division. Such registration shall be made on an application form provided by the city and shall be accompanied by the registration fee required by the city. All right-of-way registration fees shall be set forth in the City of Columbia Heights licensing fee section.
(2) Registration information. The registrant shall provide the following information at the time of registration and shall promptly notify the city of changes in such information:
(a) Registrant's name, address, telephone number, facsimile number and Gopher One-Call registration certificate number if required by state law.
(b) Name, address, e-mail address, telephone number, and facsimile number of the person responsible for fulfilling the obligations of the registrant.
(c) A certificate of insurance from a company licensed to do business in the State of Minnesota providing coverage in the following amounts:
1. Public liability, including premises, products and complete operations.
Bodily injury liability | $1,000,000 each person $2,000,000 each occurrence |
Property damage liability | $2,000,000 each occurrence |
Bodily injury and property and damage combined | $2,000,000 single limit |
2. Automobile liability insurance, including owned, non-owned and hired vehicles.
Bodily injury liability | $1,000,000 each person $2,000,000 each occurrence |
Property damage liability | $2,000,000 each occurrence |
In lieu of the above bodily injury and property damage combined | $2,000,000 single limit |
3. Such certificate shall verify 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 equipment or facilities in the rights-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 equipment and collapse of property. Such certificate shall also indicate the registrant's insurance is the primary coverage, shall name 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. Such certificate shall require that the city be notified 30 days prior to cancellation or non-renewal of the policy.
(d) Twenty-four-hour emergency number.
(e) An acknowledgment by the registrant of the indemnification.
(f) Such other information the city may require.
(3) Exceptions. The following are not subject to the requirements of this division:
(a) Persons planting or maintaining boulevard plantings or gardens.
(b) Persons or individual erecting fences, installing driveways, sidewalks, curb and gutter, or parking lots.
(c) Persons engaged in snow removal activities.
(d) Federal, state, county, and city agencies.
(e) Persons installing pet containment systems.
(f) Plumbers licensed in accordance with city code.
(g) Persons acting as agents, contractors or subcontractors for a registrant who has properly registered in accordance with this division.
(4) Term. Registrations issued pursuant to this section shall expire on December 31 of each calendar year.
(E) Reporting obligations.
(1) Each registrant shall, at the time of registration and by December l 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 right-of-way.
(2) The plan should include, but not be limited to, the following information:
(a) The locations and the estimated beginning and ending dates of all projects to be commenced during the next calendar year; and
(b) To the extent known, the tentative locations and estimated beginning and ending dates for all projects contemplated for the five years following the next calendar year. The term "project" in this section shall include both next-year projects and five-year projects.
(3) By January 1 of each year the city will have available for inspection in the city's office a composite list of all projects for which the city has been informed of the annual plans. All registrants are responsible for keeping themselves informed on the current status of this list.
(4) Thereafter, by February 1, each registrant may change any projects 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.
(5) Notwithstanding the foregoing, the city will not deny an application for a rights-of-way permit for failure to include a project in a plan submitted to the city if the registrant has used commercially reasonable efforts to anticipate and plan for a project.
(F) Permit required; bond; exceptions. No person shall excavate, dig, tunnel, trench, or install any facilities, equipment or improvements above, on, or beneath the surface of any right-of-way in the city or any property owned by the city without first obtaining a permit pursuant to this subsection.
(a) Permit-excavation. An excavation permit is required by a registrant to excavate any part of the right-of-way described in such permit to hinder free and open passage over the specified portion of rights-of-way by placing facilities described therein, to the extent and for the duration specified therein.
(b) Permit-obstruction. A permit is also required by a registrant to hinder free and open passage over the specified portion of right-of-way by placing equipment described therein on or above the right-of-way to the extent and for the duration of the permit.
(G) Application fee. An application for a permit shall be made on forms provided by the city and shall be accompanied by the fees set forth by the city which are established to reimburse the city for associated costs. If the work is to be performed by an agent, contractor or subcontractor on behalf of a registrant, the registrant shall sign such application. The application shall also be accompanied by the following:
(1) Scaled drawings showing the location of all facilities and improvements proposed by the applicant.
(2) A description of the methods that will be used for installation.
(3) A proposed schedule for all work.
(4) The location of any public streets, sidewalks or alleys that will be temporarily closed to traffic during the work.
(5) The location of any public streets, sidewalks or alleys that will be disrupted by the work.
(6) A description of methods for restoring any public improvements disrupted by the work.
(7) Any other information reasonably required by the Public Works Director or City Engineer.
(8) Residents over the age of 62 will be required to pay a permit fee of $35 per excavation.
(H) Security. A surety bond, letter of credit or cash deposit in the amount determined by the Public Works Director or City Manager but not less than $5,000, shall be required from each applicant. A surety bond shall be from a corporate surety authorized to do business in the state. Security required pursuant to this division shall be conditioned that the holder will perform the work in accordance with this section and applicable regulations, will pay to the city any costs incurred by the city in performing work pursuant to this section; and will indemnify and save the city and its officers, agents and employees harmless against any and all claims, judgment or other costs arising from any excavation and other work covered by the permit or for which the city, Council or any city officer may be liable by reason of any accident or injury to persons or property through the fault of the permit holder, either in improperly guarding the excavation or for any other injury resulting from the negligence of the permit holder. The bond, letter of credit or cash deposit shall be released by the city upon completion of the work and compliance with all conditions imposed by the permit. For permits allowing excavations within public streets, such bond, letter of credit or cash deposit shall be held for a period of 24 months to guaranty the adequacy of all restoration work.
(I) Permit issuance; conditions. The Public Works Director or City Manager shall grant a permit upon finding that the work will comply with applicable divisions of this section. The permit shall be kept on the site of the work while it is in progress, in the custody of the individual in charge of the work. The permit shall be exhibited upon request made by any city official or police officer. The Public Works Director or City Manager may impose reasonable conditions upon the issuance of the permit and the performance of the applicant thereunder to protect the public health, safety and welfare, to ensure the structural integrity of the right-of-way, to protect the property and safety of other users of the right-of-way, and to minimize the disruption and inconvenience to the traveling public. An excavation permit is required for work that involves excavation and boulevard right-of-way repairs. Where excavations disturb both a street and boulevard area, the permit holder will be charged for one street excavation permit per right-of-way excavation. No permit shall be issued to anyone who has failed to register in accordance with this section.
(J) Exceptions. No permit shall be required for the following:
(1) Landscaping work permitted by the city pursuant to site improvement or developer agreements.
(2) Driveways, sidewalks, curb and gutter, and other facilities permitted by the city pursuant to the public improvement process.
(3) Snow removal activities.
(4) Restoration due to maintenance activities of the city. (Minimum restoration standards still apply.)
(K) Diligence in performing work. Work shall progress in an expeditious manner as reasonably permitted by weather conditions until completion in order to avoid unnecessary inconvenience to traffic. In the event that the work is not performed in accordance with applicable regulations pertaining to excavations and utility connections, or the work is not done in an expeditious manner, or shall cease or be abandoned without due cause, the city may, after 72-hour notice to the permit holder, correct the work and fill the excavation or repair the street. The entire cost of such work shall be paid by the permit holder upon demand made by the city. The financial guarantees may be used by the city to reimburse itself for costs incurred through private engineering consulting fees and attorney fees to complete the work under this section.
(L) Standards during construction or installation. The permit holder shall comply with the following standards when engaging in the work:
(1) Take such precautions as are necessary to avoid creating unsanitary conditions. Observe and comply with all laws, rules and regulations of the state, county, and city.
(2) Conduct the operations and perform the work in a manner as to ensure the least obstruction and interference to traffic.
(3) Take adequate precautions to ensure the safety of the general public and those who require access to abutting property.
(4) If required by the Public Works Director or City Engineer, notify adjoining property owners prior to the commencement of work which may disrupt the use of and access to such adjoining properties.
(5) In all cases where construction work interferes with the normal use of the construction area, provide for closing the construction area to traffic or to afford it restricted use of the area and comply with MMUTCD traffic safety signing requirements.
(6) Exercise precaution at all times for the protection of persons, including employees and property.
(7) Protect and identify excavations and work operations with barricade flags, and if required, by flagmen in the daytime, and by warning lights at night.
(8) Provide proper trench protection as required by O.S.H.A. when necessary and depending upon the type of soil, in order to prevent cave-ins endangering life or tending to enlarge the excavation.
(9) Protect the root growth of trees and shrubbery.
(10) Installation of pipe (utility conductors) under Portland cement concrete, asphalt concrete, or other high-type bituminous pavements shall be done by jacking, auguring or tunneling as directed by the Engineer unless otherwise authorized. HDPE sleeving shall be an acceptable casing or sleeving material for telecommunications installations.
(11) When removing pavement of Portland cement concrete, asphalt concrete or high-type built-up bituminous surfacing, the pavement shall be removed on each side of the trench or excavation a distance of nine inches beyond the trench width and length, in order to provide a shoulder and solid foundation for the surface restoration.
(12) To obtain a straight edge and neat-appearing opening in pavement surfaces, the following procedure is required:
(a) Portland cement concrete pavement. The surface shall be saw-cut scored two inches deep and the concrete broken out by sledge or pneumatic hammer chisel.
(b) Asphalt concrete. The surface shall be cut full depth by pneumatic hammer chisel.
(13) Excavations, trenches and jacking pits off the roadway or adjacent to the roadway or curbing shall be sheathed and braced depending upon location and soil stability, and as directed by the city.
(14) Excavations, trenches and jacking pits shall be protected when unattended to prevent entrance of surface drainage.
(15) All backfilling must be placed in six-inch layers at optimum moisture and compacted with the objective of attaining 100% of AASHTO density. Compaction shall be accomplished with hand, pneumatic or vibrating compactors as appropriate.
(16) Backfill material shall be Class 5, or better at the judgment of the Public Works Director. Backfilling with the material from the excavation may be permitted provided such material is granular in nature and acceptable to the Public Works Director or Assistant City Engineer.
(17) Compacted backfill shall be brought to street grade and crowned at the center not more than one inch. Backfill procedures shall provide for no settlements. Settlements, which occur within a two-year warranty period, shall be repaired in a timely manner. The city may authorize another contractor to make the repair if it is not done in a timely manner. Reimbursement may be made from the surety bond, letter of credit or cash deposit with city.
(18) Street and pedestrian traffic shall be maintained throughout construction unless provided otherwise by the permit.
(19) No lugs damaging to roadway surfaces may be used.
(20) Dirt or debris must be periodically removed during construction.
(21) Other reasonable standards and requirements of the Public Works Director or Assistant City Engineer.
(M) Repair and restoration.
(1) Schedule. The work to be done under the permit, and the repair and restoration of the right-of-way as required herein, must be completed within the dates specified in the permit, increased by as many days as work could not be done because of extraordinary circumstances beyond the control of the permit holder, when work was prohibited as unseasonable or unreasonable or when extended by the Public Works Director. In addition to repairing its own work, the permit holder must restore the general area of the work, and the surrounding areas, including the paving and its foundations, to the condition that existed before the commencement of the work but only to the extent the permit holder disturbed such surrounding areas.
(2) General standards. The permit holder shall perform repairs and restoration according to the standards and with the materials specified by the Public Works Director or Assistant City Engineer. Both individuals shall have the authority to prescribe the manner and extent of the restoration, and may do so in written procedures of general application or on a case-by-case basis. In exercising this authority, the Public Works Director or Assistant City Engineer shall be guided by the following standards and consideration:
(a) Minimum pavement restoration standards are set forth in the "Standard Plates," attached to Ordinance 1446 as Plate Numbers 1-13.
(b) The number, size, depth and duration of the excavations, disruptions or damage to the right-of-way.
(c) The traffic volume carried by the right-of-way; the character of the neighborhood surrounding the right-of-way;
(d) The pre-excavation condition of the right-of-way; the remaining life-expectancy of the right-of-way affected by the excavation;
(e) Whether the relative cost of the method of restoration to the permit holder is in reasonable balance with the prevention of an accelerated depreciation of the right-of-way that would otherwise result from the excavation, disturbance or damage to the right-of-way; and
(f) The likelihood that the particular method of restoration would be effective in slowing the depreciation of the right-of-way that would otherwise take place.
(3) City restoration. Only upon prior written approval of the Public Works Director, the permit holder may request restoration assistance through the Public Works Department. If the city agrees to perform the work, the permit holder shall pay to the city, in advance; a cash deposit equaling 150% of the estimated restoration cost. The restoration cost shall be estimated by the Public Works Director or designee shall include an estimate of the degradation cost. The estimate of the degradation cost shall be based upon criteria adopted by the Minnesota Public Utilities Commission and found on the ROW Permit Fee Schedule. Following completion of the restoration, any funds in excess of the actual restoration cost and the degradation cost shall be returned to the permit holder. Notwithstanding this section, the city shall have no obligation to honor the permittee's restoration request.
(4) Guarantees. The permit holder shall guarantee its work and shall maintain it for 24 months following its completion. During this 24-month period it shall, upon notification from the Public Works Director or Assistant City Engineer, promptly correct all restoration work to the extent necessary, using the method required by the Engineering Department.
(5) Permit limitations. Permits issued pursuant to this section are valid only for the area of the right-of-way specified in the application and the permit and only for the dates so specified. No work shall be extended beyond the permitted area or dates without a new permit being procured therefor, provided the Public Works Director may extend the completion date of the work in accordance with division (M).
(N) Denial of permit. The Public Works Director may deny a permit due to the following:
(1) Failure to register pursuant to this section.
(2) A proposed excavation within a street or sidewalk surface that has been constructed or reconstructed within the preceding five years unless the Public Works Director or City Manager determines that no other locations are feasible or when necessitated by an emergency.
(3) The applicant is subject to revocation of a prior permit issued pursuant to this section.
(4) The proposed schedule for the work would conflict or interfere with an exhibition, celebration, festival or any other similar event.
(5) The right-of-way would become unduly congested due to the proposed facilities and equipment when combined with other uses in the right-of-way.
(6) Businesses or residences in the vicinity will be unreasonably disrupted by the work.
(7) The proposed schedule conflicts with scheduled total or partial reconstruction of the right-of-way.
(8) The applicant fails to comply with the requirements of this section or other sections of this code.
(O) Emergency work.
(1) A registrant may proceed to take whatever actions are necessary to respond to an emergency. Within two business days after the occurrence of the emergency the registrant shall apply for the necessary permits, pay the fees associated therewith and fulfill the rest of the requirements necessary to bring itself into compliance with this section for the actions it took in response to the emergency.
(2) If the Public Works Director becomes aware of an emergency, the Director shall attempt to contact the local representative of each registrant affected, or potentially affected, by the emergency. In any event, the Public Works Director may take whatever action deemed necessary to respond to the emergency, the cost of which shall be borne by the registrant whose facilities or equipment occasioned the emergency.
(P) Revocation of permits. The Public Works Director or City Manager may revoke any permit, without a fee refund, if there is a substantial breach of the terms and conditions of any statute, this code, rule or regulation, or any condition of the permit which substantial breach shall continue uncured for ten calendar days after the issuance of a written order of the Public Works Director. A substantial breach of a permit holder shall include, but shall not be limited to, the following:
(1) The violation of any material provision of the permit;
(2) An evasion or attempt to evade any material provision of the 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 permit;
(4) The failure to maintain the required bonds and insurance;
(5) Failure to complete the work in a timely manner;
(6) The failure to correct a condition indicated on an order issued by the Engineering Department.
(Q) Appeal.
(1) Filing of appeal. Any person aggrieved by, (i) the denial of a permit application, (ii) the denial of a registration, (iii) the revocation of a permit or, (iv) the application of the fee schedule imposed by the city may appeal to the Council by filing a written notice of appeal with the Administrative Secretary. Said notice must be filed within 20 days of the action causing the appeal.
(2) Notice of hearing. The Council shall hear the appeal no later than 30 days after the date the appeal is filed. Notice of the date, time, place, and purpose of the hearing shall be mailed to the appellant not less than 10 days before the date of the hearing.
(3) Hearing and decision. The Council shall, at such hearing, hear and consider any evidence offered by the appellant, the Public Works Director or Engineering Department, and anyone else wishing to be heard. After hearing the oral and written views of all interested persons, the Council shall make its decision at the same meeting or at a specified future meeting.
(R) Mapping. Within 120 days following completion of any work pursuant to a permit, the registrant shall provide the Public Works Director accurate maps and drawings certifying the "as-built" location of all facilities and equipment installed, owned and maintained by the registrant. Such maps and drawings shall indicate both the horizontal and vertical location of all facilities and equipment and shall be provided in a format consistent with the city's electronic mapping system. Failure to provide maps and drawings in accordance with this subsection shall be grounds for revoking the permit holder's registration.
(S) Location of facilities and equipment.
(1) Under grounding by telecommunications right-of-way users. Any new construction and the installation of new equipment and replacement of old equipment of telecommunication right-of-way users shall be underground or contained within buildings or other structures in conformity with applicable codes. Provided, telecommunications right-of-way users may attach equipment and facilities to existing poles and structures maintained by a service or utility service.
(2) Corridors. The Public Works Director may assign specific corridors within the right-of-way, or any particular segment thereof as may be necessary, for each type of equipment that is or, pursuant to current technology, the Public Works Director expects will someday be located within the right-of-way. All permits issued by the Public Works Director involving the installation or replacement of equipment shall designate the proper corridor for the equipment at issue.
(3) Limitation of space. To protect health and safety, the Public Works Director shall have the power to prohibit or limit the placement of new or additional equipment within the right-of-way if there is insufficient space to accommodate all of the requests of registrants or persons to occupy and use the right-of-way. In making such decisions, the Public Works Director shall strive to the extent possible to accommodate all existing and potential users of the right-of-way, but shall be guided primarily by considerations of the public interest, the public's needs for the particular utility service, the condition of the right-of-way, the time of year with respect to essential utilities, the protection of existing equipment in the right-of-way, and future city plans for public improvements and development projects which have been determined to be in the public interest.
(T) Relocation.
(1) Relocation for city purposes. A registrant shall promptly but in no event more than 120 days of the city's request, permanently remove and relocate at no charge to the city, any facilities or equipment if and when made necessary by a change in the grade, alignment or width of any right-of-way, by the construction, maintenance or operation of any city facilities or to protect the public health, safety and welfare. The registrant shall restore any right-of-way to the condition it was in prior to removal and relocation.
(2) Under grounding of relocated telecommunications facilities. A telecommunications right-of-way user shall relocate all above ground facilities and equipment to underground locations at its own cost and expense at the city's request when, (i) the city requires the relocation of all telecommunications facilities and equipment to underground locations or ii) structures or poles to which the registrant's facilities or equipment is attached are abandoned or removed by the owner of such structures or poles.
(U) Right-of-way vacation.
(1) Reservation of right. If the city vacates a right-of-way which contains the equipment of a registrant, and if the vacation does not require the relocation of registrant facilities and equipment, the city shall reserve, to and for itself and all registrants having facilities and equipment in the vacated right-of-way, the right to install, maintain and operate any facilities and equipment in the vacated right-of-way and to enter upon such right-of-way at any time for the purpose of reconstruction, inspecting, maintaining or repairing the same.
(2) Relocation of equipment. If the vacation requires the relocation of registrant facilities and equipment; and (a) if the vacation proceedings are initiated by the registrant, the registrant must pay the relocation costs; or (b) if the vacation proceedings are initiated by the city, the registrant must pay the relocation costs unless otherwise agreed to by the city and the registrant; or (c) if the vacation proceedings are initiated by a person or persons other than the registrant or permit holder, such other person or persons must pay the relocation costs.
(V) Abandoned and unusable equipment.
(1) Discontinued operations. A registrant who has determined to discontinue its operations in the city must either:
(a) Provide information satisfactory to the Public Works Director that the registrant's obligations for its equipment in the right-of-way under this section have been lawfully assumed by another registrant; or
(b) Submit to the Public Works Director an action plan for the removal or abandonment of equipment and facilities. The Public Works Director shall require removal of such facilities and equipment if the Public Works Director determines such removal is necessary to protect the public health, safety and welfare. The Public Works Director may require the registrant to post a bond in an amount sufficient to reimburse the city for reasonably anticipated costs to be incurred in removing the facilities and equipment.
(2) Abandoned facilities equipment. Facilities and equipment of a registrant located on the surface of or above a right-of-way or on city property that, for two years, remains unused shall be deemed to be abandoned. Such abandoned equipment is deemed to be a nuisance. The city may exercise any remedies or rights it has at law or in equity, including, but not limited to, (i) abating the nuisance, or (ii) requiring removal of the equipment or facilities by the registrant, or the registrant's successor in interest.
(3) Removal of underground equipment. Any registrant who has unusable and abandoned underground facilities or equipment in any right-of-way shall remove it from that right-of-way during the next scheduled excavation, to the extent such facilities or equipment is uncovered by such excavation unless this requirement is waived by the Public Works Director or City Manager.
(W) Indemnification and liability.
(1) Limitation of liability. By reason of the acceptance of a registration or the grant of a right-of-way permit, the city does not assume any liability (a) for injuries to persons, damage to property, or loss of service claims by parties other than the registrant or the city, or (b) for claims or penalties of any sort resulting from the installation, presence, maintenance, or operation of equipment by registrants or activities of registrants.
(2) Indemnification. By registering with the city, a registrant agrees, or by accepting a permit under this section, a permit holder is required, to defend, indemnify, and hold the city whole and harmless from all costs, liabilities, and claims for damages of any kind including the city's reasonable attorney fees and costs arising out of the construction, presence, installation, maintenance, repair or operation of its equipment, or out of any activity undertaken in or near a right-of-way, whether or not any act or omission complained of is authorized, allowed, or prohibited by a right-of-way permit. It further agrees that it will not bring, nor cause to be brought, any action, suit or other proceeding claiming damages, or seeking any other relief against the city for any claim nor for any award arising out of the presence, installation, maintenance or operation of its equipment, or any activity undertaken in or near a right-of-way, whether or not the act or omission complained of is authorized, allowed or prohibited by a right-of-way permit. The foregoing does not indemnify the city for its own negligence except for claims arising out of or alleging the city's negligence where such negligence arises out of or is primarily related to the presence, installation, construction, operation, maintenance or repair of said equipment by the registrant or on the registrant's behalf, including but not limited to, the issuance of permits and inspection of plans or work. This section is not, as to third parties, a waiver of any defense or immunity otherwise available to the registrant or to the city and the registrant, in defending any action on behalf of the city, shall be entitled to assert in any action every defense or immunity that the city could assert in its own behalf.
(X) Right-of-way management regulation fees. Permit and degradation fees are found on the Right-of-Way Permit Fee Schedule on file in the Clerk's office. Registration fees are found on the permit form.
(`77 Code, § 6.301) (Am. Ord. 1446, passed 4-22-02) Penalty, see § 6.802