(A) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
CITY MANAGER. The City Manager or designated representative.
COMPANY. A natural or corporate person, business association, political subdivision, public or private agency of any kind, its successors and assigns, who or which seeks or is required to construct, install, operate, repair, maintain, remove or relocate facilities in the city.
FACILITIES. Telecommunications equipment of any kind, including, but not limited to, audio, video, paging, facsimile or similar service, not governed by M.S. Chapter 238, as it may be amended from time to time, including all trunks, lines, circuits, physical connections, switching equipment, wireless communication equipment of all kinds, and any necessary appurtenances owned, leased or operated by a company on, over, in, under, across or along public ground.
PUBLIC GROUND. Highways, roads, streets, alleys, public ways, utility easements and public grounds in the city.
(B) Permit procedure.
(1) Permit required. A company may not construct, install, repair, remove or relocate facilities, or any part thereof, in, on, over, under or along public ground without first obtaining a permit from the city.
(2) Application. Application for a permit shall be made to the City Manager.
(3) Issuance of permit. If the City Manager determines that the applicant has satisfied the requirements of this section, the City Manager may issue a permit to the company. An applicant may contest a permit denial, or the conditions of approval by written notice to the City Clerk requesting a Council review within 14 days of the City Manager’s action. The Council shall hear any contest of the City Manager’s actions under this section within 45 days of the City Clerk’s receipt of the contest notice. Nothing in this section precludes the city from requiring a franchise agreement with the applicant, as allowed by law, in addition to the issuance of a permit set forth herein.
(4) Permit fee. The application must be accompanied by the permit fee set by the Council by resolution.
(5) Security for completion of work. Prior to commencement of work, the company must deposit with the city security in the form of certified check, letter of credit or construction bond, in a sufficient amount as determined by the City Manager for the completion of the work. The securities will be held until the work is completed, plus a period of six months hereafter to guarantee that restoration work has been satisfactorily completed. Upon application of the company, providing the information as the City Manager may require, if two or more work projects are to be constructed during a calendar year, the City Manager may accept, in lieu of separate security for each project, a single security for multiple projects in the form and amount as determined, in the discretion of the City Manager, to be sufficient to assure completion of all projects which may be in progress at any one time during that calendar year and to guarantee that restoration work will be satisfactorily completed. The security will then be returned to the company with interest if required by law and then interest at the applicable statutory rate.
(6) Inspection of work. When the work is completed, the company must request an inspection by the City Manager. The City Manager will determine if the work has been satisfactorily completed and provide the company with a written report of the inspection and approval.
(C) Restoration and relocation.
(1) Restoration. Upon completion of the work, the company must restore the general area of the work, including paving and its foundations, to the same condition that existed prior to commencement of the work and must exercise reasonable care to maintain the same condition for two years thereafter. The work must be completed as promptly as weather permits. If the company does not promptly perform and complete the work, remove all dirt, rubbish, equipment and material, and restore the public ground to the same condition, the city may put it in the same condition at the expense of the company. The company must, upon demand, pay to the city the direct and indirect cost of the work done for or performed by the city, including, but not limited to, the city’s administrative costs. To recover its costs, the city will first draw on the security posted by the company and then recover the balance of the costs incurred from the company directly by written demand. This remedy is in addition to any other remedies available to the city.
(2) Company initiated relocation. The company must give the city written notice prior to a company initiated relocation of facilities. A company initiated relocation must be at the company’s expense and must be approved by the city, the approval not to be unreasonably withheld.
(3) City required relocation. The company must promptly, and at its own expense, with due regard for seasonal working conditions, permanently relocate its facilities whenever the city requires the relocation.
(4) Relocation where public ground vacated. The vacation of public ground does not deprive the company of the right to operate and maintain its facilities in the city. If the vacation proceedings are initiated by the company, the company must pay the relocation costs. If the vacation proceedings are initiated by the city or other persons, the company must pay the relocation costs unless otherwise agreed to by the city, company and other persons.
(D) Company default.
(1) Notice. If the company is in default in the performance of the work authorized by the permit, including, but not limited to, restoration requirements, for more than 30 days after receiving written notice from the city of the default, the city may terminate the rights of the company under the permit, the notice of default must be in writing and specify the provisions of the permit under which the default is claimed and state the grounds of the claim. The notice must be served on the company by personally delivering it to an officer thereof at its principal place of business in the state, or by certified mail to that address.
(2) City action on default. If the company is in default in the performance of the work authorized by the permit, the city may, after the above notice, to the company and failure of the company to cure the default, take action as may be reasonably necessary to abate the condition caused by the default. The company must reimburse the city for the city’s reasonable costs, including costs of collection and attorney fees incurred as a result of the company default. The security posted under division (B) above will be applied by the city first toward payment for the reimbursement.
(E) Indemnification.
(1) Scope. The company will indemnify, keep and hold the city, its elected officials, officers, employees and agents free and harmless from any and all claims and actions on account of injury or death of persons or damage to property occasioned by the construction, installation, maintenance, repair, removal, relocation or operation of the facilities affecting public ground, unless the injury or damage is the result of the negligence of the city, its officials, employees, officers or agents. The city will notify the company of claims or actions and provide a reasonable opportunity for the company to accept and undertake the defense.
(2) Claim defense. If a claim or action is brought against the city under circumstances where indemnification applies, the company, at its sole expense, shall defend the city if written notice of the claim or action is given to the company within a period wherein the company is not prejudiced in the defense of the claim or action by lack of the notice. If the company undertakes the defense, the company shall have complete control of the claim or action, but it may not settle without the consent of the city, which shall not be unreasonably withheld. This division is not, as to third parties, a waiver of any defense or immunity otherwise available to the city. In defending any action on behalf of the city, the company is entitled to assert every defense or immunity that the city could assert in its own behalf.
(F) Other conditions of use.
(1) Use of public ground. Facilities must be located, constructed, installed, maintained or relocated so as not to endanger or unnecessarily interfere with the usual and customary traffic, travel and use of public ground. The facilities are subject to additional conditions of the permit as established by the director, including, but not limited to, the right of inspection by the city at reasonable times and places; the obligation to relocate the facilities pursuant to division (C) above; and compliance with all applicable regulations imposed by the State Public Utilities Commission and other state and federal law, including prompt compliance with the requirements of the Gopher State One Call program, M.S. Chapter 216D, as it may be amended from time to time.
(2) Location. The facilities must be placed in a location agreed to by the city. The company shall give the city 45 days’ advanced written notice of the company’s proposed location of facilities within the public ground. No later than 45 days after the city’s receipt of the company’s written notice the city will notify the company in writing of the city’s acceptance or rejection of the proposed location. If the city rejects the company’s proposed location, the city shall propose alternative location. The city does not waive or forfeit its right to reject the location of facilities by failure to respond within the 45 days.
(3) Emergency work. A company may open and disturb the surface of the public ground without a permit where an emergency exists requiring the immediate repair of its facilities, and in that event, the company must request a permit not later than the second working day thereafter and comply with the applicable conditions of the permit. In no event may the company undertake such an activity which will result in the closing of a street or alley without prior notification to the city.
(4) Street improvements, paving or resurfacing. The city will give the company written notice of plans for street improvements where permanent paving or resurfacing is involved. The notice must contain: the nature and character of the improvements; the streets upon which the improvements are to be made; the extent of the improvements, the time when the city will start the work; and if more than one street is involved, the sequence in which the work is to proceed.
(5) Company protection of facilities. The company must take reasonable measures to prevent the facilities from causing damage to persons or property. The company must take reasonable measures to protect its facilities from damage that could be inflicted on the facilities by persons, property or the elements. The company must take specific protective measures when the city performs work near the facilities.
(6) Prior service connections. In cases where the city is undertaking the paving or resurfacing of streets and the facilities are located under the street, the company may be required to install service connections prior to the paving or resurfacing, if it is apparent that service will be required during the five-year period following the paving or resurfacing.
(G) Effective date and applicability to existing facilities. Companies with facilities in, on, over, under or along public ground on the effective date of this section must take prompt action to comply with this section and the permits authorized by this section. A company, however, is not required to reapply for a permit obtained from the city prior to the effective date of this section. A company is not required to pay the difference between the permit fee of a previously obtained permit and the equivalent newly obtained permit under this section. All other provisions of this section apply to existing facilities, this section shall take effect immediately from and after its passage and publication according to law.
(H) Acceptance of requirements. By receiving a permit pursuant to this section, the company accepts and agrees to comply with all of the requirements of this section.
(I) Public ground other than right-of-way. Nothing in this section is intended to grant to the company authority beyond that given by M.S. § 222.37, as it may be amended from time to time, for use of the public rights-of-way for construction and operation of facilities. If the city allows the company to use its non-right-of-way public ground, the terms of this section apply to the extent they are consistent with the contract, statutory and common law rights the city owns in the property.
(J) Regulations permit schedules. The City Manager is authorized and directed to prepare suitable regulations and schedules for the administration of permits issued under this section.
(2003 Code, § 6.41) (Ord. 101, passed 3-8-2002) Penalty, see § 10.99