NOTICE: This draft is provided as aid to the the further proceedings of the ROW Task Force and does not reflect an official position of the Task Force regarding any particular language.
CHAPTER 7819
USE OF PUBLIC RIGHT-OF-WAY
7819.0100 DEFINITIONS. Subpart 1. Scope. The terms used in this chapter have the meanings given in this part. Subp. 2. Commission. "Commission" means the state public utilities commission. Subp. 3. Construction performance bond. "Construction performance bond" means an individual project bond, statewide blanket bond, cash deposit, security, letter of credit, or form of self-insurance acceptable to the local government unit that guarantees permittee's performance of the terms of right-of-way repair or restoration as set out in the right-of-way permit, state law, rule, or local ordinance. Subp. 4. Degradation. "Degradation" means the decrease in useful life of the right-of-way caused by excavation in or other disturbance of the right-of-way, which in the absence of restoration results in the need to reconstruct the right-of-way earlier than would be required if the excavation or disturbance did not occur. Subp. 5. Degradation cost. "Degradation cost" means money paid to the local government unit to cover the cost associated with a decrease in the useful life of a public right-of-way caused by excavation or other disturbance. Degradation cost is the cost incurred to achieve restoration. Subp. 6. Five-year project plan. "Five-year project plan" means a project adopted by the local government unit for construction within the next five years. Subp. 7. High-density corridor. "High-density corridor" means a designated portion of the public right-of-way within which telecommunications right-of-way users having multiple and competing facilities may be required to build and install facilities in a common conduit system or other common structure. Subp. 8. Hole. "Hole" means an excavation with a length less than the width of the street. Subp. 9. Local government unit. "Local government unit" has the meaning given it in Minnesota Statutes, section 237.162. Subp. 10. Patch. "Patch" means a method of pavement replacement that is temporary in nature. A patch consists of: (1) the compaction of the subbase and aggregate base, and (2) the replacement, in kind, of the existing roadway pavement for a minimum of two feet beyond the edges of the excavation in all directions. A patch results in degradation of all streets except for those included in the local government unit's five-year project plan, in which case it is considered full restoration. Subp. 11. Permit. "Permit" has the meaning given "right-of-way permit" in Minnesota Statutes, section 237.162. Subp. 12. Permittee. "Permittee" means a person to whom a permit to excavate or obstruct a right-of-way has been granted by a local government unit under this chapter. Subp. 13. Public right-of-way. "Public right-of-way" has the meaning given it in Minnesota Statutes, section 237.162. Subp. 14. Restoration. "Restoration" means the process by which the public right-of-way is returned to the life expectancy and condition that existed before excavation. Restoration must not require extraordinary maintenance. Subp. 15. Temporary surface. "Temporary surface" means the compaction of subbase and aggregate base and replacement, in kind, of the existing roadway pavement only to the edges of the excavation. It is temporary in nature except when the replacement is in a roadway included in the local government unit's two-year project plan, in which case it is considered full restoration. Subp. 16. Trench. "Trench" means an excavation with a length greater than the width of the street. Subp. 17. Two-year project plan. "Two-year project plan" means a project that the local government unit has scheduled for construction within the next two years.ENGINEERING STANDARDS 7819.1000 INSTALLATION OF TELECOMMUNICATIONS FACILITIES. The following requirements pertain to telecommunications facilities installation in a public right-of-way: A. During vibratory plowing or trenching of facilities, a warning tape must also be placed at a depth of 12 to 18 inches above all fiber facilities and copper cables with over 200 pairs. B. Directional bore facilities must be installed in conduit. The local government unit may waive this provision if the right-of-way user agrees to additional marking of facilities. This provision does not apply to residential service connections. C. Telecommunication facilities must have a locating wire or conductive shield. D. Unless otherwise directed by the local government unit, a location marker must be placed at a maximum of every 2,500 feet, as well as at road crossings, at culverts, and for changes in direction. E. Buried fiber facilities installed within corporate limits must be placed in a conduit unless this requirement is specifically waived by the local government unit. The right-of-way user shall determine the type of conduit to be used. F. Facilities buried outside of corporate limits in ditches must be at a minimum of 36 inches unless otherwise directed by the local government unit. G. The placing of all telecommunications facilities must comply with the National Electric Safety Code, as incorporated by reference in Minnesota Statutes, section 326.243. 7819.1100 RESTORATION OF RIGHT-OF-WAY. Subpart 1. Restoration standards. Plates 1 to 13, shown in parts 7819.9900 to 7819.9950, indicate maximum restoration requirements. The local government unit and right-of-way user may agree to a lesser requirement. Subp. 2. Levels of restoration. All levels of restoration include compaction of the materials placed in the excavation of the subgrade and aggregate base, plus pavement replacement, in kind, for each lane impacted by the excavation. All work must be performed according to the latest edition of and supplements to the Minnesota Department of Transportation's Standard Specifications for Construction and the local government unit's specifications. 7819.1200 SAFETY AND LEGAL REQUIREMENTS, GENERALLY. Before initiating construction in a public right-of-way, the right-of-way user shall notify the local government unit in writing and, if required, obtain a permit. A right-of-way user shall comply with the requirements of local, state, and federal laws, including Minnesota Statutes, chapter 216D. A right-of-way user shall perform the work in conformance with the applicable codes and established rules and regulations. The right-of-way user is responsible for all of its work done in the right-of-way, regardless of who does the work. 7819.1300 COMPLETION CERTIFICATE. Subpart 1. Requirement. A person designated by the right-of-way user as a responsible employee shall sign a completion certificate showing the completion date for the work performed, identifying the installer and designer of record, and certifying that work was completed according to the requirements of the local government unit. Subp. 2. "As built" drawings. If necessary due to approved changes for the work as projected when the permit was applied for, the permittee shall submit "as built" drawings showing any deviations from the plan that are greater than plus or minus two feet. Subp. 3. Response. The local government unit shall respond within 30 days of receipt of the completion certificate and, if applicable, the "as built" drawings. Failure to approve or disapprove the permittee's performance within 30 days is deemed to be approval by the local government unit. Subp. 4. Obligation. Construction triggers an obligation of the right-of-way user that the right-of-way restoration be completed according to the conditions set forth in parts 7819.1000 to 7819.1400. The right-of-way user also assumes responsibility for all location mapping and for repairing facilities or structures, including right-of-way that was damaged during facility installation until the facility is removed from the right-of-way. The obligation is limited to one year for plantings and turf establishment. 7819.1400 LEVELS OF PROTECTION. Subpart 1. Definition. For purposes of this part, an underground telecommunications facility is not a pipeline as defined in Minnesota Statutes, section 116I.01, subdivision 3. Subp. 2. Option to expose and support. The telecommunications facility owner has the discretion to choose to expose and support its facilities in the right-of-way. Subp. 3. Exception. Notwithstanding subpart 2, if a telecommunications facility owner is unable to locate the facility it must expose the facility. Subp. 4. Liability for damages. A person who damages an underground telecommunications facility in the right-of-way shall reimburse the facility owner for the cost of necessary repairs according to Minnesota Statutes, section 216D.06, subdivision 2, if the underground telecommunications facility has been properly located by the facility owner.HIGH-DENSITY CORRIDORS 7819.2000 GENERAL REQUIREMENT FOR DESIGNATION. A local government unit shall comply with parts 7819.2000 to 7819.2500 before it may designate a portion of the public right-of-way as a high-density corridor. 7819.2100 ANALYSIS OF NEED AND OPPORTUNITY. Before a local government unit may require a public right-of-way user to build or install facilities in a common conduit system or other common structure, it must first establish that the designated portion of the public right-of-way is or will be congested. In so doing, the local government unit shall perform a need and opportunity analysis to determine if or when a public right-of-way within its jurisdiction should be designated as a congested right-of-way. This analysis must include at least the following considerations: A. information concerning any current problems related to congestion of facilities within the public right-of-way; B. projected future needs for capacity of the right-of-way, including evaluations of its right-of-way users' present and future plans and needs relative to the public right-of-way and a determination of what space is or may become available in the right-of-way, if any; and C. whether any future repaving or reconstruction project is planned for the right-of-way. 7819.2200 PRELIMINARY PLANS FOR HIGH-DENSITY CORRIDOR. When the local government unit determines that a congested public right-of-way should be designated as a high-density corridor, it shall publish and issue a notice requesting comments, recommendations, and assistance, with actual service by mail on all existing users of the public right-of-way, adjoining property owners, permit applicants, registrants, and known potential permit applicants and registrants. The comments, recommendations, and assistance may relate to and include: A. market analysis data; B. size, cost, use, and allocation of the designated high-density corridor; C. technical matters, such as protection, security, and ingress and egress access for purposes of installation, service hook-up, repair, and maintenance; D. space reservation; E. evaluations of alternatives to the designated high-density corridor; and F. other, related considerations. Before initiating further action with respect to a high-density corridor, the local government unit shall determine that there is at least one telecommunications service provider who will commit to investment in the high-density corridor within the area designated for the high-density corridor. 7819.2300 DEVELOPMENT OF BUSINESS PROPOSAL. After publishing the notice and making the determination set forth in part 7819.2200, the local government unit may proceed with developing a business proposal to establish a high-density corridor. The proposal must provide for an estimate of total incurred cost, broken down by specific categories of expenses, including without limitation design, administration, excavation, installation, restoration, and any relocation of other utilities. The proposal must include a cost allocation plan. The cost allocation plan must at least provide for: A. at least one telecommunications carrier willing to invest in the placement of its own facilities in the public right-of-way, to incur the costs set forth in the business proposal or amendments to it, and invest in the placement of spare capacity in an amount and type mutually agreeable to that telecommunications carrier and the local government unit; B. a system of preleasing the spare capacity at cost; and C. a system of reserving and leasing spare capacity at a fair allocation of total incurred cost to immediate users with future rebates allowed on a pro rata cost-shift basis when new users are allowed entry to the common conduit system. 7819.2400 RATIFICATION BY GOVERNING BODY. Subpart 1. Notice and hearing. When completed, the local government unit shall submit the proposal prepared under part 7819.2300, along with the recommendations of its staff, to its governing body. Initial comments on the business proposal must be due within 30 days of service on interested parties or publication of the notice. Reply comments must be due 15 days after the due date for filing the initial comments and must be served on other interested parties. The local government unit shall schedule a public hearing on the matter, to be held before its governing body within .. days after the due date for filing reply comments. A final decision adopting, rejecting, or adopting with modifications the business proposal must be made within .. days after the date set for the hearing. Subp. 2. Appeal. If the governing body adopts the proposal, or adopts the proposal with modifications, and a utility or other user of the applicable right-of-way objects to the proposal as adopted, the user shall file its appeal of the decision with the public utilities commission within .. days of the final decision of the local government unit. The commission shall consider the appeal in accordance with Minnesota Rules/Statutes, parts/sections ......... to ........ and decide the appeal within 60 days of the date of its filing. 7819.2500 LOCAL GOVERNMENT POWERS. Subpart 1. Excavation prohibition. Upon completion of the high-density corridor, the local government unit may prohibit excavation in the repaved area for the length of the corridor and until the capacity of the common conduit system is exhausted. For purposes of this part, the repaved area is defined by the width of the right-of-way. However, excavation must be allowed for emergencies and for customer hook-ups. The local government unit may implement any necessary procedures to administer parts 7819.2000 to 7819.2500. Subp. 2. Other powers, generally. The provisions of this part do not preclude a local government unit from implementing any other right-of-way management technique that is consistent with applicable provisions of federal and state law. Subp. 3. Redress. Nothing contained in parts 7819.2000 to 7819.2500 limits or precludes any party from seeking redress before a court of competent jurisdiction.LIABILITY PROTECTION 7819.3000 CONSTRUCTION PERFORMANCE BOND. Subpart 1. Form. The permittee may select the form of construction performance bond or other security, provided it is acceptable to the local government unit. Subp. 2. Amount. The local government unit shall set the amount of the bond. The amount must not exceed the cost the local government unit reasonably estimates may be necessary to repair and restore the right-of-way to the condition that existed before the excavation. 7819.3100 INDEMNIFICATION. Subpart 1. Requirement to indemnify. A telecommunications right-of-way user shall indemnify, keep, and hold the local government unit free and harmless from any and all liability on account of injury to persons or damage to property occasioned by the issuance of permits or by the construction, maintenance, repair, inspection, or operation of the right-of-way user's facilities located in the public right-of-way. Subp. 2. Exceptions. The local government unit shall not be indemnified for losses or claims occasioned through its own negligence except for losses or claims arising out of or alleging the local government's negligence as to the issuance of permits or inspections to ensure permit compliance. The local government unit shall not be indemnified if the injury or damage results from the performance in a proper manner of acts that the right-of-way user reasonably believes will cause injury or damage, and the performance is nevertheless ordered or directed by the local government unit after receiving notice of the right-of-way user's determination. 7819.3200 DEFENSE. Subpart 1. Requirement to defend. If a suit is brought against the local government unit under circumstances where the right-of-way user is required to indemnify, the right-of-way user, at its sole cost and expense, shall defend the local government unit in the suit if written notice of the suit is promptly given to the right-of-way user within a period in which the right-of-way user is not prejudiced by the lack or delay of notice. Subp. 2. Litigation control; settlement. If the right-of-way user is required to indemnify and defend, it shall thereafter have control of the litigation, but the right-of-way user may not settle the litigation without the consent of the local government unit. Consent must not be unreasonably withheld. Subp. 3. Effect on third parties. This part is not, as to third parties, a waiver of any defense, immunity, or damage limitation otherwise available to the local government unit. Subp. 4. Subrogation. In defending an action on behalf of the local government unit, the right-of-way user is entitled to assert in an action every defense, immunity, or damage limitation that the local government unit could assert in its own behalf. 7819.3300 INSURANCE. Subpart. 1. Requirement to insure. The indemnification and defense obligations in parts 7819.3100 and 7819.3200 must be guaranteed to the local government unit by a public liability and property damage insurance policy naming the local government unit, its governing body, and its employees and commissions, as additional insureds. Subp. 2. Amount. The insurance policy must be in the amount of: A. $1,500,000 for property damage to any one or more persons in any one occurrence; and B. $1,500,000 for bodily injury to any one or more persons in any one occurrence. Subp. 3. Insurance company. The insurance must be obtained from a company acceptable to the local government unit and a certificate of coverage must be provided to the local government unit. Subp. 4. Notice of change in coverage. The coverage must state that the local government unit must be notified in writing by the insurer 30 days in advance of any cancellation, termination, or change of any coverage.MAPPING SYSTEMS 7819.4000 AUTHORITY; PURPOSE. In regulating the use of its public rights-of-way, a local government unit may establish, develop, and implement a right-of-way mapping system in accordance with parts 7819.4000 and 7819.4100 The purpose of a mapping system is to: A. allow flexibility in its use by the local government unit as an effective management tool; B. enhance public safety and user facility safety; C. provide for long-term cost savings; D. improve public right-of-way design quality; and E. allow for better information collection and cooperative usage among local government units, telecommunications companies, and other users of the public right-of-way. 7819.4100 REQUIRED MAPPING INFORMATION. Subpart 1. Application required. To be considered for a project within a public right-of-way, a right-of-way user shall submit a right-of-way permit application to the local government unit. For purposes of parts 7819.4000 and 7819.4100, a right-of-way user includes any department or agency of a local government unit, as well as the local government unit itself and other public or private entities applying for a project within the public right-of-way. Subp. 2. Information. The application must contain the following information: A. location and approximate depth of applicant's mains, cables, conduits, switches, and related equipment and facilities, with the location based on: (1) offsets from property lines, distances from the centerline of the public right-of-way, and curb lines as determined by the local government unit; or (2) coordinates derived from the coordinate system being used by the local government unit; or (3) any other system agreed upon by the right-of-way user and local government unit; B. the type and size of the utility; C. a description showing above-ground appurtenances; D. a legend explaining symbols, characters, abbreviations, scale, and other data shown on the map; and E. any proposed facilities to be abandoned, if applicable. Subp. 3. Changes and corrections. The application must provide that the applicant agrees to submit "as built" drawings or maps within six months after the project's completion, reflecting any changes and variations from the information provided under subpart 2, items A to E. Subp. 4. Additional construction information. In addition, the right-of-way user shall submit to the local government unit at the time the project is completed information regarding the installation date, identifying data regarding the installer and designer of record, and a statement certifying that any deviations from plan are no greater than plus or minus two feet except as otherwise shown. Subp. 5. Manner of conveying permit data. A right-of-way user is not required to provide or convey mapping information or data in a format or manner that is different from what is currently utilized and maintained by that user. A permit application fee may include the cost to convert the data furnished by the right-of-way user to a format currently in use by the local unit of government. Subp. 6. Data on existing facilities. At the request of a local government unit, a right-of-way user shall provide existing data on its existing facilities within the public right-of-way in the form maintained by the user at the time the request was made, if available.MAXIMUM RESTORATION REQUIREMENTS 7819.9900 UTILITY TRENCH RESTORATION; PLATES 1 AND 2. Placeholder 7819.9905 UTILITY TRENCH RESTORATION; PLATES 3 AND 4. Placeholder 7819.9910 UTILITY TRENCH RESTORATION; PLATE 5. Placeholder 7819.9915 UTILITY TRENCH RESTORATION; PLATE 6. Placeholder 7819.9920 UTILITY HOLE RESTORATION; PLATE 7. Placeholder 7819.9925 UTILITY HOLE RESTORATION; PLATE 8. Placeholder 7819.9930 UTILITY HOLE RESTORATION; PLATE 9. Placeholder 7819.9935 UTILITY HOLE RESTORATION; PLATE 10. Placeholder 7819.9940 TYPICAL ROAD PLAN; PLATE 11. Placeholder 7819.9945 TYPICAL ROAD RESTORATION; PLATE 12. Placeholder 7819.9950 TYPICAL ROAD SHOULDER RESTORATION; PLATE 13. Placeholder
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