(A) Definitions. For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
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 RIGHT-OF-WAY. Highways, roads, streets, alleys, public ways, utility easements and public grounds in the city.
SUPERINTENDENT. The Superintendent of Public Works or designated representative.
(B) 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 permission from the city.
(C) Permission requested. Permission is made to the Superintendent.
(D) Issuance of permission.
(1) If the Superintendent determines that the applicant has satisfied the requirements of this chapter, the Supervisor may issue permission to the company.
(2) An applicant may contest denial of permission or the conditions of approval by written notice to the City Administrator requesting a City Council review within 14 days of the Superintendent’s action.
(3) The Council shall hear any contest of the Superintendent’s actions under this chapter within 45 days of the City Administrators receipt of the contest notice.
(4) Nothing in this chapter 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.
(E) Inspection of work. When the work is completed, the company must request an inspection by the Superintendent or City Engineer.
(F) Restoration.
(1) 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 2 years thereafter.
(2) 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.
(3) 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.
(4) This remedy is in addition to any other remedies available to the city.
(G) 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.
(H) 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 a relocation.
(I) Relocation where public ground vacated.
(1) The vacation of public ground does not deprive the company of the right to operate and maintain its facilities in the city.
(2) If the vacation proceedings are initiated by the company, the company must pay the relocation costs.
(3) 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 or other persons.
(J) Notice.
(1) If the company is in default in the performance of the work authorized, 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.
(2) 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 Minnesota or by certified mail to that address.
(K) City action on default.
(1) 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.
(2) 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 (F) above will be applied by the city first toward payment for reimbursement.
(L) Indemnification.
(1) 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 injury or damage is the result of the negligence of the city, its elected officials, employees, officers or agents.
(2) The city will notify the company of claims or actions and provide a reasonable opportunity for the company to accept and undertake the defense.
(M) Claim defense.
(1) 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 a claim or action by lack of notice.
(2) 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.
(3) This section 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
(N) Use of public ground.
(1) 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.
(2) The facilities are subject to additional conditions of the permit as established by the superintendent including but not limited to:
(a) The right of inspection by the city at reasonable times and places;
(b) The obligation to relocate the facilities pursuant to divisions (G) and (H) above; and
(c) Compliance with all applicable obligations imposed by the Minnesota Public Utilities Commission and other state and the 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.
(O) Location.
(1) The facilities must be placed in a location agreed to by the city. The company shall give the City Superintendent or City Engineer a 2-week written notice of the company's proposed location of facilities within the public ground.
(2) No later than 2 weeks after the city's receipt of the company's written or verbal 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 locations.
(3) The city does not waive or forfeit its right to reject the location of facilities by failure to respond within the 2 weeks.
(P) Emergency work.
(1) A company may open and disturb the surface of public ground without permission where an emergency exists requiring the immediate repair of its facilities.
(2) In that event the company must request a repair not later than the second working day thereafter and comply with the applicable conditions of the permit.
(3) In no event, may the company undertake an activity which will result in the closing of a street or alley without prior notification to the city.
(1987 Code, § 305.09)