Subd. 1. Findings and Purpose.
A. The city holds the rights-of-way within its geographical boundaries as an asset in trust for its citizens. The city and other public entities have invested millions of dollars in public funds to build and maintain the rights-of-way. It also recognizes that some persons, by placing their equipment in the right-of-way and charging the citizens of the city for goods and services delivered thereby, are using this property held for the public good. Although the services are often necessary or convenient for the citizens, the persons receive revenue and/or profit through their use of public property. Although the service delivery facilities are in most cases a necessary and proper use of right-of-way, the city hereby seeks to regulate and manage the uses pursuant to applicable state law.
B. 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 by all users, the city strives to keep its rights-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 rights-of-way, one of the causes for the early and excessive deterioration of its rights-of-way is frequent excavation.
C. This section imposes reasonable regulations on the placement and maintenance of equipment currently within its rights-of-way or to be placed therein at some future time. It is intended to complement the regulatory roles of state and federal agencies. Under this section, persons disturbing and obstructing the rights-of-way will bear a fair share of the financial responsibility for their integrity. Finally, this section provides for recovery of the city's costs associated with managing its rights-of-way.
Subd. 2. Definitions. The following words, terms and phrases, as used herein, have the following meanings.
A. The term "city cost" means 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.
B. The term "degradation" means the accelerated depreciation of the right-of-way caused by excavation in or disturbance of the right-of-way, resulting in the need to reconstruct the right-of-way earlier than would be required if the excavation did not occur.
C. The term "degradation cost" means 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.
D. The term "emergency" means a condition that:
1. Poses a clear and immediate danger to life or health, or of a significant loss of property; or
2. Requires immediate repair or replacement in order to restore service to a customer.
E. The terms "equipment" or "facilities" mean any tangible thing 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.
F. The term "excavate" means to dig into or in any way remove or physically disturb or penetrate any part of a right-of-way.
G. The term "permit" means a permit issued pursuant to this section.
H. The term "permit holder" means 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.
I. The term "registrant" means any person who has or seeks to have its facilities or equipment located in any right-of-way.
J. The terms "restore" or "restoration" mean 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.
K. The term "restoration cost" means money paid to the city by a permittee to cover the cost of restoration.
L. The term "right-of-way" means the surface and space above and below a public roadway, highway, street, cartway, bicycle lane and public sidewalk in which the city has an interest, including other dedicated rights-of-way for travel purposes and utility easements owned by the city for city utility purposes.
M. The terms "service" or "utility service" include, but is not limited to:
1. Those services provided by a public utility as defined in M.S. § 216B.02(4) and (6), as 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. § 301B.01, as 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 amended from time to time.
N. The term "telecommunication rights-of-way user" means a person owning or controlling a facility in the public right-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 amended from time to time, and telecommunication activities related to providing natural gas or electric energy services are not telecommunications right-of-way users.
Subd. 3. Registration.
A. Annual Registration Required. No person shall construct, install, repair, remove, relocate or perform any work within any right-of-way without first being registered pursuant to this subdivision. The registration shall be made on an application form provided by authorized city personnel and shall be accompanied by the registration fee provided in the city's fee schedule. A service or utility service operating under a franchise with the city shall register pursuant to this subdivision, but need not provide the registration information required by Subd.3.B. below if the information has been submitted pursuant to the franchise agreement. A person who pays a franchise fee to the city in accordance with a franchise agreement shall be exempt from payment of a registration fee.
B. Registration Information. The registrant shall provide the following at the time of registration and shall promptly notify the city of changes in such information:
1. Registrant's name, address, telephone number, facsimile number and Gopher One-Call registration certificate number if required by state law;
2. Name, address, telephone number and facsimile number of the person responsible for failing the obligations of the registrant;
3. A certificate of insurance from a company licensed to do business in the state providing coverage in the following amounts.
a. General Liability. Public liability, including premises, products and complete operations.
(1) Bodily injury liability: $1,000,000 each person; $3,000,000 each occurrence;
(2) Property damage liability: $3,000,000 each occurrence; or
(3) Bodily injury and property damage combined: $3,000,000 single limit.
b. Comprehensive. Automobile liability insurance, including owned, non-owned and hired vehicles:
(1) Bodily injury liability: $1,000,000 each person; $3,000,000 each occurrence;
(2) Property damage liability: $3,000,000 each occurrence; or
(3) In lieu of Subds. 3.B.3.b.(1) and (2) above, bodily injury and property damage combined: $3,000,000 single limit.
c. (1) The 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:
(A) Use and occupancy of the right-of-way by the registrant, its officers, agents, employees and permittees; and/or
(B) Placements and use of equipment or facilities in the right-of-way by the registrant, its officers, agents, employees and permittees, including, but not limited to, protection against liability arising from completed operations, damage of underground equipment and collapse of property. The certificate shall also 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 coverages. The certificate shall require that the authorized city personnel be notified 30 days prior to cancellation of the policy.
4. Twenty-four-hour emergency number;
5. An acknowledgment by the registrant of the indemnification pursuant to Subd. 18.B. below; and
6. Such other information the city may require.
C. Exceptions. The following are not subject to the requirements of this subdivision:
1. Persons planting or maintaining boulevard plantings or gardens;
2. Persons erecting fences, installing driveways, sidewalks, curb and gutter or parking lots;
3. Persons engaged in snow removal activities;
4. Persons installing street furnishing, bus stop benches and shelters;
5. Persons installing vending machines;
6. Persons installing irrigation systems;
7. Federal, state, county and city agencies;
8. Persons installing pet containment systems;
9. Plumbers licensed furnishing services for sewer and water connections; and
10. Persons acting as agents, contractors or subcontractors for a registrant who has properly registered in accordance with this Subd. 3.
D. Term. Registrations issued pursuant to this section shall expire on December 31 of each calendar year.
Subd. 4. 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 subdivision.
A. Application Fee for Permit; Application Fee; Forms; Content. An application for a permit shall be made on forms provided by authorized city personnel and shall be accompanied by the fees set forth in fee schedule as adopted by resolution by the City Council, the fees being established to reimburse the city for city costs. Any person installing facilities in conjunction with a municipal project as determined by authorized city personnel, shall be exempt from paying the permit fees. If the work is to be performed by an agent, contractor or subcontractor on behalf of a registrant, the application shall be signed by the registrant. 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 work to be performed including, but not limited to, number and size of excavations;
3. A description of the methods that will be used for installation;
4. A proposed schedule for all work;
5. The location of any public streets, sidewalks or alleys that will be temporarily closed to traffic during the work;
6. The location of any public streets, sidewalks or alleys that will be disrupted by the work;
7. A description of methods for restoring any public improvements disrupted by the work; and
8. Any other information reasonably required by authorized city personnel.
B. Security. For companies not operating under a franchise with the city, a surety bond, letter of credit or cash deposit in the amount determined by authorized city personnel, but not less than $5,000, may be required from each applicant at the discretion of authorized city personnel. A surety bond shall be from a corporate surety authorized to do business in the state. Security required pursuant to this paragraph 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, the bond, letter of credit or cash deposit shall be held for a period of 24 months to guarantee the adequacy of all restoration work.
C. Permit Issuance; Conditions. The authorized city personnel shall grant a permit upon finding the work will comply with applicable sections of this Code. 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 authorized city personnel may impose reasonable conditions including, but not limited to, schedule and number of working days for each permit, 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. No permit shall be issued to anyone who has failed to register in accordance with Subd. 3. above.
D. Exceptions. No permit shall be required for the following:
1. Landscaping work;
2. Fences, driveways, sidewalks, curb and gutter and parking lots, street furnishings, bus stop benches, shelters posts and pillars;
3. Snow removal activities;
4. Vending machines;
5. Irrigation systems; provided that, the system does not connect directly to water mains in the right-of-way;
6. Activities of the city; and
7. Installation and maintenance of sewer or water services; provided that, no excavation or other work is done within a street, sidewalk or alley and all work is confined to unimproved portions of rights-of-way or easements.
Subd. 5. 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 the work shall be paid by the permit holder upon demand made by the city. In the event the permittee fails to comply with the prescribed schedule as described in the permit, the city may impose a delay penalty in an amount prescribed in the fee schedule.
Subd. 6. Standards During Construction or Installation. The permit holder shall comply with the following standards when engaging in the work:
A. Observe and comply with all laws, rules and regulations of the state and city and take such precautions as are necessary to avoid creating unsanitary conditions;
B. Conduct the operations and perform the work in a manner as to ensure the least obstruction and interference to traffic;
C. Take adequate precautions to ensure the safety of the general public and those who require access to abutting property;
D. If required by authorized city personnel, notify adjoining property owners prior to the commencement of work which may disrupt the use of and access to the adjoining properties;
E. 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 MUTCD (Manual on Uniform Traffic Control Devices) traffic safety signing requirements;
F. Exercise precaution at all times for the protection of persons, including employees and property;
G. Protect and identify excavations and work operations with barricade flags and, if required, by flaggers in the daytime and by warning lights at night;
H. 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;
I. Protect the root growth of trees and shrubbery;
J. 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 authorized city personnel unless otherwise authorized. HDPE (High Density Polyethelyne) sleeving shall be an acceptable casing or sleeving material for telecommunications installations;
K. 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;
L. To obtain a straight edge and neat-appearing opening in pavement surfaces, the following procedure is required:
1. 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.
2. Asphalt Concrete. The surface shall be cut full depth by pneumatic hammer chisel.
M. 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;
N. Excavations, trenches and jacking pits shall be protected when unattended to prevent entrance of surface drainage;
O. All backfilling must be placed in six inch layers at optimum moisture compacted with the objective of attaining 100% of AASHO (American Association of State Highway and Transportation Officials) density. Compaction shall be accomplished with hand, pneumatic or vibrating compactors as appropriate;
P. Backfill material shall consist of the excavated soils that have been removed during excavation. The materials shall be segregated and backfilled in the same manner as removed; provided, the material moisture is capable of obtaining optimum compaction. If the backfill material is too wet, then granular material may be substituted at the direction of authorized city personnel. All backfill must replace "in kind" the materials removed. All organic materials must be replaced with granular material as directed by authorized city personnel;
Q. Compacted backfill shall be brought to street grade and crowned at the center not more than one inch;
R. Street and pedestrian traffic shall be maintained throughout construction unless provided otherwise by the permit;
S. No lugs damaging to roadway surfaces may be used;
T. Dirt or debris must be periodically removed during construction; and
U. Other reasonable standards and requirements of authorized city personnel.
Subd. 7. Repair and Restoration.
A. 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 authorized city personnel. 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 the surrounding areas.
B. General Standards. The permit holder shall perform repairs and restoration according to the standards and with the materials specified by authorized city personnel. The authorized city personnel shall have the authority to prescribe the manner and extent of the restoration and may do so in written procedures of general application or on a case-by-case basis. The authorized city personnel in exercising this authority shall be guided by the following standards and consideration:
1. The number, size, depth and duration of the excavations, disruptions or damage to the right-of-way;
2. The traffic volume carried by the right-of-way; the character of the neighborhood surrounding the right-of-way;
3. The pre-excavation condition of the right-of-way; the remaining life-expectancy of the right-of-way affected by the excavation;
4. 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
5. 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.
C. City Restoration. The permit holder may request that the city restore the right-of-way. 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 authorized city personnel and 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. 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.
D. 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 authorized city personnel, promptly correct all restoration work to the extent necessary, using the method required by authorized city personnel.
Subd. 8. 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. The authorized city personnel may extend the completion date of the work in accordance with Subd. 7.A. above.
Subd. 9. Denial of Permit. The authorized city personnel may deny a permit due to the following:
A. Failure to register pursuant to Subd. 3. above;
B. A proposed excavation within a street or sidewalk surface that has been constructed or reconstructed within the preceding five years unless authorized city personnel determines that no other locations are feasible or when necessitated by an emergency;
C. The applicant has failed to comply with or correct inadequacies of previous permits;
D. The proposed schedule for the work would conflict or interfere with an exhibition, celebration, festival or any other similar event;
E. 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 as provided in Subd. 14.C. below;
F. Businesses or residences in the vicinity will be unreasonably disrupted by the work;
G. The proposed schedule conflicts with scheduled total or partial reconstruction of the right-of-way; and
H. The applicant fails to comply with the requirements of this section or other sections of this Code.
Subd. 10. Emergency Work.
A. 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.
B. If the authorized city personnel becomes aware of an emergency, the authorized city personnel shall attempt to contact the local representative of each registrant affected, or potentially affected, by the emergency. In any event, the authorized city personnel 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.
Subd. 11. Revocation of Permits. The authorized city personnel 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 the substantial breach shall continue uncured for ten calendar days after the issuance of a written order of authorized city personnel. A substantial breach of a permit holder shall include, but shall not be limited to, the following:
A. The violation of any material provision of the permit;
B. 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;
C. Any material misrepresentation of fact in the application for a permit;
D. The failure to maintain the required bonds and insurance;
E. The failure to complete the work in a timely manner; or
F. The failure to correct a condition indicated on an order issued by authorized city personnel.
Subd. 12. Appeal.
A. Filing of Appeal.
1. Any person aggrieved by the following may appeal to the Council by filing a written notice of appeal with the City Administrator:
a. The denial of a permit application;
b. The denial of a registration;
c. The revocation of a permit; or
d. The application of the fee imposed by the fee schedule.
2. The notice must be filed with 20 days of the action causing the appeal.
B. Notice of Hearing. The Council shall hear the appeal not 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 ten days before the date of the hearing.
C. Hearing and Decision. The Council shall, at the hearing, hear and consider any evidence offered by the appellant, the authorized city personnel and anyone else wishing to be heard. After hearing the oral and written views of all interested persons, the Council shall issue a written decision.
Subd. 13. Mapping. Within 120 days following completion of any work pursuant to a permit, the registrant shall provide authorized city personnel accurate maps and drawings certifying the "as-built" location of all facilities and equipment installed, owned and maintained by the registrant. The 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 mapping system. Failure to provide maps and drawings in accordance with this subdivision shall be grounds for revoking the permit holder's registration.
Subd. 14. Location of Facilities and Equipment.
A. Undergrounding 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. Telecommunications right-of-way users may attach equipment and facilities to existing poles and structures maintained by a service or utility service with the owner's permission.
B. Corridors. The authorized city personnel may assign specific corridors within the right-of-way, or any particular segment thereof as may be necessary, for each type of equipment installation currently permitted or anticipated to be permitted in the future. All permits issued by the authorized city personnel involving the installation or replacement of equipment shall designate the proper corridor for the equipment at issue.
C. Limitation of Space. To protect health and safety, the authorized city personnel 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 the decisions, the authorized city personnel 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.
D. Preservation of Corridor Space in the Right-of-Way for Future Installations. To adequately plan for future demand on the right-of-way by users, the authorized city personnel may reserve corridor space within the right-of-way for equipment to be installed at a point of time in the future even though it is not currently permitted.
Subd. 15. Relocation.
A. 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, vacation 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 rights-of-way to the condition it was in prior to removal and relocation. No fees shall be required of the permittee for work done under this paragraph.
B. Undergrounding 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:
1. The city requires the relocation of all telecommunications facilities and equipment to underground locations; or
2. Structures or poles to which the registrant's facilities or equipment is attached are abandoned or removed by the owner of the structures or poles.
Subd. 16. Right-of-Way Vacation.
A. Reservation of Right. If the city vacates a right-of-way which contains the equipment of a registrant, and 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 the vacated right-of-way at any time for the purpose of reconstruction, inspecting, maintaining or repairing the same.
B. Relocation of Equipment. The other person or persons must pay the relocation costs:
1. If the vacation requires the relocation of registrant facilities and equipment;
2. If the vacation proceedings are initiated by the registrant, the registrant must pay the relocation costs;
3. 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
4. If the vacation proceedings are initiated by a person or persons other than the registrant or permit holder.
Subd. 17. Abandoned and Unusable Equipment.
A. Discontinued Operations. A registrant who has determined to discontinue its operations in the city must either:
1. Provide information satisfactory to the authorized city personnel that the registrant's obligations for its equipment in the right-of-way under this section have been lawfully assumed by another registrant; or
2. Submit to the authorized city personnel an action plan for the removal or abandonment of equipment and facilities. The authorized city personnel shall require removal of the facilities and equipment if the authorized city personnel determine the removal is necessary to protect the public health, safety and welfare, authorized city personnel 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.
B. Abandoned Facilities Equipment. Facilities and equipment of a registrant located on the surface of, or above a right-of-way, or on city property which remains unused for a period of two years shall be deemed to be abandoned. The abandoned equipment is deemed to be a nuisance. The city may exercise any remedies or rights available including, but not limited to:
1. Abating the nuisance; or
2. Requiring removal of the equipment or facilities by the registrant or the registrant's successor in interest.
C. 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 the facilities or equipment is uncovered by the excavation unless this requirement is waived by authorized city personnel.
Subd. 18. Indemnification and Liability.
A. 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:
1. For injuries to persons, damage to property or loss of service claims by parties other than the registrant or the city; or
2. For claims or penalties of any sort resulting from the installation, presence, maintenance or operation of equipment by registrants or activities of registrants.
B. Indemnification. By registering with authorized city personnel, 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 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 the negligence arises out of or is primarily related to the presence, installation, construction, operation, maintenance or repair of the 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.
Subd. 19. Franchise Holders. If there is a conflict in language between the franchise of a person holding a valid franchise agreement with the city and this section, the terms of the franchise shall prevail.
Subd. 20. Effective Date. This section shall be in full force and effect upon publication.
Subd. 21. Violation a Misdemeanor. Every person who violates a section, subdivision, paragraph, item, clause, part or any provision of this chapter when performing an act thereby prohibited or declared unlawful, or fails to act when the failure is thereby prohibited or declared unlawful and, upon conviction thereof, shall be punished as for a misdemeanor except as otherwise stated in specific provisions thereof.
(Ord. 28 of 1998, passed 6-2-1998; Ord. 74, Third Series, passed 8-6-2002; Ord. 80, Third Series, passed 3-4-2003)