4. Approval of Encroachment Agreement-KMC Telecom
CITY OF
CHARHASSER
'-f
-
690 COULTER DRIVE. P.O. BOX 147. CHANHASSEN, MINNESOTA 55317
(612) 937-1900 . FAX (612) 937-5739
MEMORANDUM
TO:
Mayor and City Council
FROM:
Don Ashworth, City Manager
DATE:
May 21, 1997
SUBJ:
Approval of Encroachment, Agreement, KMC Telecom
BACKGROUND
The Telecommunications Act, as approved in 1996, will become one of the worst federal
boondoggles and the ramifications of that Act will be felt by cities well into the next century. In
essence, the FCC has provided cities with the authority to review and conduct hearings in regards
to the placement of satellite antennas, but has mandated that the conclusion to the review process
must be approval. Cities are given very minor discretion, i.e. we could have picked some other
location for the satellite in the vicinity of Dell Road, but the conclusion that we did have to
approve a site in that general vicinity and that the locational requirements must be reasonable
was the predetermined conclusion. No where was not an acceptable answer. The FCC has
mandated the same types of rules as it deals with companies proposing to provide high speed
telecommunications services via the use of fiber optics. In the case of regulating companies
proposing to provide high speed data communication, a city cannot use a franchise as a means to
control the number of companies, cannot establish restrictions or regulations which would place
one company in a more competitive position than another, cannot collect franchise fees, etc. The
State of Minnesota provided cities with some relief via passage ofa right-of-way bill which
allows us to ensure that companies do not damage our public right-of-ways and allows cities to
establish bonds and other requirements to ensure that repairs are paid for and/or that reasonable
regulations are put into effect to reduce future damage, i.e. requiring companies to burrow under
roads, sidewalks, etc., permit cities the ability to establish routes and street locations, etc.
CURRENT PROPOSAL
KMC is a large national firm providing high speed communication services to businesses
throughout the United States. They are proposing to provide this same type of service in Eden
Prairie, Chanhassen, and Chaska. They would propose to provide fiber services to all of the
Mayor and City Council
May 21, 1997
Page 2
industrial parks in Eden Prairie, Eden Prairie Center, Chanhassen business parks including
downtown, and complete their routing into the Chaska business parks and finally, downtown.
They are hopeful of completing all work this summer. They do not currently provide cable
television services with a majority of their business competing with T -1 services currently
offered through AT & T.
In light of the fact that all three cities would be affected, we have been conducting joint meetings
between KMC and the three cities for the last 30-45 days. The conclusion of those meetings was
the attached Encroachment Agreement which, hopefully, protects each of the three cities as much
as possible. A concession was achieved in that KMC has agreed to provide "dark fiber" between
five public buildings in each of the three cities. For Chanhassen, the five buildings would be the
fire station, city hall, recreation center, public works building, and a fifth building to be
determined at a future date. That concession should, after we make connection to the fiber,
reduce our telecommunications costs about 20% to 25%. The second benefit would be the
quality of service. Also included in the Encroachment Agreement is KMC's agreement to
reimburse each of the cities their costs of negotiating this agreement. [Note: The cities agreed
that it would probably be in our best interests to use one firm to negotiate in our behalf and the
firm of Moss & Barnett was selected. Brian Grogan of Moss & Barnett specializes in
interpreting the FCC regulations and negotiating franchises and agreements such as the one
attached.] With the exception of the designation of buildings, the Encroachment Agreement, as
enclosed, is exactly the same for each of the three cities. Approval is recommended.
Update: I originally had this item on the regular agenda. As I finished dictation, I realized that
the city virtually cannot deny this application and the agreement itself does spell out each of the
areas where we do have some control. Accordingly, I have moved this item to the consent
agenda.
DWA (5-21-97)
Further Update: Hopefully I will have had an opportunity to talk with Councilman Berquist
prior to Monday's meeting. Approval continues to be recommended. [Note: A modification has
been made to ensure conformity with the recently approved state law.]
DW A (6-4-97)
g:\mgr\kmc.doc
City Council Meeting. May 27, 1997
Mayor Mancino: Okay, thank you Todd for the update. Holasek Nursery. About the sand.
Kate Aanenson: Staff did follow up on that. It's an agricultural use...
Mayor Mancino: Well we all received a copy of the letter about the noise. Yeah.
Councilman Senn: So there's absolutely nothing we can do as far as enforcement of the noise ordinance
or anything?
Councilman Berquist: Do you know the address ofthat landowner? Was it Timberwood?
Mayor Mancino: In Stone Creek.
Councilman Senn: It is, hang on a second.
Mayor Mancino: I left a voice mail for them twice and haven't heard.
Councilman Berquist: Renaissance Court?
Kate Aanenson: .. . agricultural.. . but we did follow up on it.
Mayor Mancino: Okay, thank you very much. Let's go back to the Consent Agenda and pull the items.
CONSENT AGENDA:
D. APPROVAL OF BILLS.
Councilman Senn: I pulled it. It's too late. I'm too tired. I'm not going to argue about it. Somebody
else can pass the motion on it. I'm voting no.
Councilman Mason: Move approval of the bills.
Mayor Mancino: Can I have a second please?
Councilman Engel: Second.
Councilman Mason moved, Councilman Engel seconded to approve the bills as presented. All
voted in favor, except Councilman Senn and Councilman Berquist who opposed, and the motion
carried with a vote of 3 to 2.
G. APPROVAL OF TELECOMMUNICATIONS ENCROACHMENT AGREEMENT. KMC.
Councilman Berquist: I had one simple question that Donald probably could have answered. I also
would like a better explanation. I can probably get that from him some other time. The only question
that I had is he makes reference, a rather obscure reference to reduce telecommunications costs about
20% to 25%. I wondered about that. But I also wonder what this means. Is this the first of many? Is the
first of many? And we have nothing that we can say or do or do about it except approve.
85
City Council Meeting - May 27, 1997
Councilman Senn: We have to let them all into the right-of-way. I mean that's contrary to what I was
hearing before.
Roger Knutson: There's a new State law which was just passed, and I assume it was signed by the
Governor... I'm quite confident that it was. I didn't hear that it was vetoed. The 14 days isn't up yet but
I believe it passed which gives us some authority.
Councilman Senn: Okay, so should we just table this?
Roger Knutson: I wasn't involved in this issue so I don't.
Mayor Mancino: Let's table it and just get it back next time.
Councilman Mason: Move to table item l(g).
Councilman Senn: Second.
Councilman Mason moved, Councilman Senn seconded to table approval of telecommunications
encroachment agreement with KMC. All voted in favor and the motion carried.
H. APPROVAL OF GAMBLING PERMIT TO SELL PULL TABS. 4TH OF JULY
CELEBRATION. CHANHASSEN LIONS CLUB.
Councilman Berquist: I pulled it.
Councilman Senn: I did too.
Councilman Berquist: I understand the Lions do a wonderful job. They do a lot of good. It's all money
that ends up coming back to the City in a beneficial manner. The problem that I have, and I think I'll
abstain from the vote is that we're permitting this to occur on city property. .. .critical at times and
maybe this is one time but there's just something about it that I don't like.
Mayor Mancino: Doing pull tabs on the 4th of July celebration?
Councilman Berquist: Pull tabs on the 4th of July celebration on city property.
Councilman Engel: Would you be okay with it if it was elsewhere?
Councilman Berquist: I'd definitely rethink it. You know I can't tell you for sure.
Todd Gerhardt: On behalf of the Lions, they did have their pull tab operation as a part of Pauly's. Since
they've closed they've...
Mayor Mancino: Tell me, how much does the City get from the pull tabs?
Todd Gerhardt: Well only what they want to...
Councilman Senn: Yeah, I had questions on that. I mean I had asked to pull this too and I just thought
we should really get more information as it relates to specifically how, what can happen with these funds.
86
ENCROACHMENT AGREEMENT
This Agreement is made as of the day of , 1997 by and between the
City of Chanhassen, Minnesota ("City"), and KMC Telecom, Inc. (IIKMCII), a corporation
authorized to do business within the State of Minnesota, and having its principal office at
1545 Route 206, Suite 300, Bedminster, NJ 07921-2567.
RECITALS
WHEREAS, KMC is a corporation duly organized and existing under the laws of the State of
Delaware and authorized by the Federal Communications Commission and the State of
Minnesota to provide Telecommunications Services and;
WHEREAS, the City and KMC discussed and negotiated the terms of this Agreement during
the months of March and April 1997 and reached agreement just prior to the May 9, 1997
effective date of new State legislation (S.F. No. 442) which amends portions of Chapter 237
of Minnesota Statutes and provides additional clarification regarding municipal authority
over public rights-of-way; and
WHEREAS, KMC has voluntarily chosen to enter into this Encroachment Agreement with
City and comply with the provisions contained herein with full knowledge of S.F. No. 442
and the amendments to Chapter 237 of Minnesota Statutes; and
WHEREAS, City has authority to grant encroachment to its rights-of-way only as expressly
specified in applicable law, however, City makes no representation, guaranty or warranty
with respect to its title or interest in said rights-of-way.
NOW, THEREFORE, in consideration of the recitals and the mutual consideration
contained herein, City and KMC agree as follows:
DEFINITIONS
~ means the City of Chanhassen, Minnesota.
Fibe.. Optic Network Facility 01' Facilities means fiber optic cables, conduits, converters,
splice boxes, cabinets, handholds, manholes, vaults, equipment, drains, surface location
markers, appurtenances and related facilities located by KMC or to be located by KMC in
the Public Rights-of-Way of City and used or useful for the transmission of
T elecommun ications Services.
law means any local, state or federal statute, ordinance, rule, regulation, code, license,
certificate, franchise, permit, writ, ruling, award, executive order, directive, requirement,
injunction, judgment, decree or other order issued, executed, entered or deemed
applicable by any governmental authority.
Public Ri&hts~of-Way means the area on, below, or above a public roadway, highway,
street, cartway, bicycle lane, and public sidewalk in which the City has an interest,
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including other dedicated rights-of-way for travel purposes and utility easements of the
City.
A public right-of-way does not include the airwaves above a public right-ot-way with
regard to cellular or other nonwire telecommunications or broadcast service.
TelecQrumunications S~rvices. shall be defined consistently with the definition found in
the Communications Act of 1934, as amended,
CONSTRUCTION, MAINTENANCE AND OPERATION OF THE SYSTEM
I , License and encroachment. Subject to the provisions of this Agreement, and all
applicable Law, the City hereby grants a non-exclusive encroachment to KMC to
construct install, maintain, locate, move, operate, place, protect, reconstruct,
reinstall, relocate, remove and replace the Facilities in, under, over, across and
along the Public Rights-of-Way for the purpose of providing Telecommunications
Services.
This Agreement shall not be sold, transferred, leased, assigned or disposed of,
including but not limited to, by force or voluntary sale, merger, voluntary or
involuntary bankruptcy, consolidation, receivership or other means without the
prior written consent of the City, which consent shall not be unreasonably withheld.
No consent from the City shall be required for a transfer in trust, mortgage, or other
instrument of hypothecation, in whole or in part, to secure an indebtedness, or for a
proforma transfer to a corporation, partnership or other entity controlling, controlled
by or under common control with KMC.
The term of said encroachment shall be for an initial period of five (5) years
commencing on the date of the signing of this Agreement. The parties agree that
the encroachment shall automatically renew for additional five (5)year periods/
unless either party gives a minimum of ninety (90) days advance written notice to
the other of intent to terminate prior to the end of said five (5) year period.
2. No InterferC!nce. Except as permitted by applicable Law and this Agreement, in the
performance and exercise of its rights and obligations under this Agreement, KMC
shall not interfere in any manner with the existence and operation of any and all
private and Public Rights-of-Way, sanitary sewers, water mains, storm drains, gas
mains, poles, overhead and underground electric and telephone wires, electrollers,
cable television wires, and other telecommunications, utility and municipal
property without the approval of the owner(s) of the affected property or properties.
KMC agrees to use existing poles for installation and will not install new poles.
3. No Property Interest. This Agreement is not a grant by City of any fee simple
property interest and is made subject to and subordinate to the prior and continuing
right of City to use the Public Rights-of-Way as a street and any other public use and
for the purpose of laying, installing, maintaining, repairingl protecting/ replacing
and removing sanitary sewersl water mains, storm drains, gas mains, poles and for
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other municipal uses and with right of ingress and egress, along, over, across and in
said Public Rights-of-Way.
4. Applicatioo for Permits. KMC shall apply for a permit for all work and for each job
within the Public Rights-of-Way. KMC shall furnish detailed plans of the work and
other such Information as required by City and by law, and shall pay all processing,
field marking, engineering, inspection, security and any other fees prior to issuance
of permit in accordance with the rates in effect at the time of payment. KMC agrees
to place its Facilities underground in all locations where the City requires other
telecommunications providers to do the same. In those areas of the City where
KMC's Facilities are located on above ground transmission or distribution facilities
of a public utility or telecommunications provider, KMC agrees to relocate or install
its Facilities underground at its own cost when:
a. The utility, on whose poles KMC has attached its Facilities, is required to
relocate its facilities underground; or
b. The City requires all telecommunications providers to relocate their above
ground facilities underground.
Said improvements shall be constructed and installed in accordance with the Law.
5. Issuance of Permits. Upon execution of this Agreement and performance of the
obligations contained in this Agreement by KMC, City will issue all permits
necessary to the installation of KMC's telecommunications system, in accordance
with the City's permitting procedures as may from time to time be amended in
accordance with applicable law.
6. bianner of Construdion. The construction, installation, operation, maintenance
and removal of the Fiber Optic Network Facilities shall be accomplished without
cost or expense to City and in such a manner so as not to endanger persons or
property or unreasonably obstruct travel on any road, walk or other access thereon
within said Public Rights-of..Way.
7. Mapi. KMC shall provide the City with an accurate map or maps certifying the
location of all Facilities within the Public Rights-of-Way in a format consistent with
the City's electronic mapping system.
8. Condition of Facilities. KMC agrees to keep said Fiber Optic Network Facilities In
good and safe condition and free from any nuisance.
9. Bnw;I. KMC shall post and maintain a construction bond in the amount of fifty
thousand dollars ($50,000) which shall remain in force until sixty (60) days after
substantial completion of KMC's construction, as determined by the City, including
restoration of Public Rights-of-Way and other property affected by the construction.
The bond shall be issued by a bonding company approved by the City.
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10. Required Authorization. KMC shall at all times provide City with sufficient
information to establish that it has obtained all required government approvals and
permits to construct and operate the Facilities and to offer and provide
Telecommunications Services including any certification or other documentation
required by the Public Utilities Commission of the State of Minnesota or any other
regulatory entity.
11. Relocation for City P...rposes. KMC shall relocate, in cooperation with, and at no
cost or charge to the City, any Fiber Optic Network Facility installed, used and
maintained under this Agreement if and when made necessary by any lawful
change of grade, alignment or width of any Public Rights-of-Way, the construction,
maintenance or operation of any underground subway or viaduct by City and/or the
construction, maintenance or operation of any other City underground or above-
ground facilities.
12. Removal and AbandQ'lment. If any portions of the Fiber Optic Network Facilities
covered under this Agreement are no longer used by KMC, or are abandoned for a
period In excess of twelve (12) months, KMC shall notify City and City shall
determine whether KMC shall either promptly vacate and remove the Facilities at
KMCs expense or abandon some or all of the Facilities in place to the extent
permitted by law.
13. Restoration of Public Rlaht5-of..Wi\}'. When removal or relocation of the Facilities
are required under this Agreement, KMC shall, after the removal or relocation of the
Fiber Optic Network Facilities, at its own cost, repair and return the Public Rights-
of-Way on which the Facilities were located to the same or better condition existing
before such removal or relocation. The work must be completed as promptly as the
weather permits. If KMC does not properly perform and complete the work,
remove all dirt, rubbish, equipment and material, and restore the Public Rights-of-
Way to the same or better condition, the City may restore the Public Rights.of-Way
to the same condition at the expense of KMC. KMC 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.
14. Damage. KMC shall be responsible for damage to City street pavements, existing
utilities, curbs, gutters and sidewalks due to KMC's installation, maintenance, repair
or removal of its Fiber Optic Network Facilities in Public Rights-of-Way, and shelll
repair, replace and restore, the damaged Public Rights-of-Way at its sole expense
and subject to approval by City.
15. ~9luntary Contrib~tion. KMC voluntarily agrees to dedicate to the City, at no
charge or cost to City, an Indefensible Right of Use (IRU) for four (4) dark fibers
(unlit) in KMC's fiber optic backbone network, which network shall pass the City
buildings and school facilities identified in Exhibit A attached hereto and
incorporated by reference, for the City's telecommunications use, provided,
however, that such fibers shall not be used by the City for commercial resale on it
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for-profit bases. KMC voluntarily agrees that any maintenance of fiber dedicated to
the City pursuant to the IRU granted herein shall be borne solely by KMC. KMC
agrees to respond to technical problems on the City's fiber within four (4) hours
with the exception of public safety or critical City communications. KMC also
agrees to respond immediately if there is a technical problem in the City's fibers
where KMC is responding to a public safety concern or a problem critical to the
City.
16. Other F~es. KMC shall pay all permit and user fees or any other fees to the City in
accordance with applicable law. KMC expressly acknowledges and agrees that
City shall have the right to impose upon KMC additional fees and/or damages for
KMC's occupation of the Public Rights-of-Way to the extent not inconsistent with
applicable Law. KMC further acknowledges and agrees to be bound by any
subsequent ordinance or regulation of the City with respect to the City's lawful
control over its Public Rights-of-Way. If there are any inconsistencies between the
terms of this Agreement and those of any subsequent ordinance or regulation the
terms of any subsequent ordinance or regulation shall take precedence.
KMC voluntarily agrees to reimburse the City in an amount not to exceed $2,500
for the City's out of pocket costs and expenses incurred to process KMC's request.
The City shall provide KMC with copies of all invoices relating to said costs and
expenses and KMC shall only provide reimbursement for costs and expenses
actually incurred by the City.
17. Non-discriminatory fees. With respect to the City's imposition of any fees or
charges not specifically required in this Agreement, KMC shall only be required to
pay any fee or charge to the extent permitted by law and which is imposed in a
competitively neutral and nondiscriminatory manner with respect to other similarly
situated telecommunications providers.
GENERAL TERMS
18. Indemnification. KMC, jointly and severally, for itself, its successors, agents,
contractors and employees, agrees to indemnify, defend (with counsel acceptable to
City) and hold harmless City, its officers, employees and agents from and against
any and all claims, demands, losses, damages, liabilities, fines, and penalties, and
all costs and expenses incurred in connection therewith, including, without
limitation, reasonable attorneys' fees and costs of defense arising directly or
indirectly, in whole or in part out of any breach by KMC of its obligations described
in this Agreement, except to the extent arising from the City's willful action or
negl igent acts or omissions.
19. Insurance. KMC and/or any of its subcontractors or agents under this Agreement
shall maintain throughout the term of this Agreement workman's Compensation
Insurance and liability insurance with regard to all damages in the minimum
amounts of:
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a. General liability - public liability, including promises, 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)
$3,000,000 single limit
Bodily injury and property
damage combined
b. Comprehensive - Automobile liability Insurance, including owned,
non-owned and hired vehicles.
(2)
Property damage liability
$1,000,000 each person
$3,000,000 each occurrence
$3,000,000 each occurrence
(1 )
Bodily injury liability
or
(3)
In lieu of (1) and (2)
Bodily injury and property
damage combined
$3,000,000 single limit
c. KMC agrees that with respect to the above-required insurance,
contracts will contain the following required provisions:
(1) the City and its officers, agents, employees, board members
and elected officials shall be named as additional insured (as
the interests of each may appear) as to all applicable coverage;
and
(2) contracts shall provide for thirty (30) days notices to the City
prior to cancellation, revocation, non-renewal or material
change.
d. The amount and conditions of liability and comprehensive insurance may be
increased upon 60 days written notice by the City should the protection
afforded by this insurance be deemed by the City to be insufficient for the
risk created by this Agreement. At no time, however, will the amount of
required liability and comprehensive insurance exceed that which is
customarily required of others for similar situations of risk.
20. Default. If KMC is in default of any obligations contained in this Agreement or in
the performance of the work or occupancy authorized by this Agreement or any
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permit granted pursuant to this Agreement, including, but not limited to, restoration
requirements or fee payments for more than thirty (30) days after receiving written
notice from the City of the default, the City may terminate the rights of KMC under
this Agreement and any permit granted hereunder, subject to City's absolute right to
revoke at any time in the exercise of City's police powers. The notice of default
must be in writing and specify the provisions of this agreement or any permit under
which the default is claimed and state the grounds of the claim. Any notice must be
served on KMC by certified mail, return receipt requested at its principal place of
business.
If KMC is in default in the performance of the work or occupancy authorized by this
Agreement or any permit granted hereunder, the City may, after the above notice to
KMC and failure of KMC to cure the default, take such action as may be reasonably
necessary to abate the condition caused by the default. KMC must reimburse the
City for the City's reasonable costs, including costs of collection and attorneys' fees,
incurred as a result of KMC's default.
21. law. The terms and conditions of this Agreement shall be subject to any and all
applicable Law. Should any term of this Agreement be determined by a court or
other entity with competent jurisdiction to be unenforceable, all other terms of this
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first
above-written.
CITY OF CHANHASSEN, MINNESOTA
DATE:
BY:
MAYOR
DATE:
BY:
CITY MANAGER
ATTEST:
KMC TELECOM, INC.
SECRETARY
BY:
PRESIDENT
DATE:
DATE:
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Exhibit A
City of Chanhassen, Minnesota
City buildings to be passed by KMCs fiber optic backbone network.
1. City Hall 690 Coulter Drive
2. Fire Station 7610 Laredo
3. Public Works 1591 Park Road
4. Chanhassen Recreation Center 2300 Coulter Drive
5. To be determined by mutual consent.
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LMC
LeagUtl of Minnesota Cities
Cities promoting excellence
ities
Number 18
May 7,1997
Rights of way bill awaits Governor's signature
House vote 128-4; Senate 49-1
Joel Jamnik
The House and Senate have
agreed on legislatIOn authorizing cities
and other local units of government to
regulate the public rights of way
within their jurisdiction. The bill, S.F.
442 (Novak, DFL-New Brighton), sets
local management responsibilities and
specifies the role of the Minnesota
Public Utilities Commission. Gover-
nor Arne Carlson is expected to sign
the bill soon.
Local management
The bill specifies that, subject to
the authority of local governments, a
telecommunications right of way user
may construct, maintain, and operate
conduit, cable, switches, and related
appurtenances and facilities along,
across, upon, above, and under any
public right of way. At the same time,
the bill grants local government units
the authority to "manage its public
right of way and to recover its rights of
way management costs." Byordi-
nance, a local government would be
allowed to:
I) require a telecommunications
company to obtain a permit to use
the right of way;
2) require registration and periodic
updating of right of way usage, and;
3) require submittal of plans for
construction and major maintenance
that provide reasonable notice to the
local government of projects that
may require excavation and obstruc-
tion of the right of way.
The bill would give local govern-
ments the right to deny a permit to
protect the health, safety, and welfare
of the public, or when necessary to
protect the publIc right of way and its
current use. While a local government
would be allowed to revoke a permit
for reasons specified in the bill,
unreasonably denying or revoking a
permit would not be allowed. Denied
or revoked permits could be appealed
to the city council, with further review
by binding arbitration. If an appeal
went to arbitration, the parties would
split the cost of the arbitration and
would be responsible for their own
costs, disbursements and attorney fees.
Page 3 - Gas tax Page 6 - Flood donations
The Senate approved the first City financial donations to flood
increase in the state gasoline tax affected areas appear legal.
since 1988.
Restoration, fees
Telecommunications providers
would be required to restore the
pavement and its foundation to the
same condition that existed before the
excavation, within time lines estab-
lished by local permit. The bill would
allow local governments to do the
restoration and seek reimbursement of
the reasonable costs of re storation.
If the telecommunications
provider chooses not to restore the
right of way, a local government could
impose a degradation fee to recover
costs associated with a decrease in the
useful life of the public right of way
caused by the excavation.
The authority to charge fees
would be based on the actual costs
incurred by the local government,
provided that the fees are fairly
apportioned, non-discriminatory, and
competitively neutral. Local govern-
ments would not be allowed to require
right of way users to obtain a franchise
or pay for the use of the public right of
way, nor seek to impose any in-kind
services as a condition of right of way
use.
MPUC role
The biII would clarify that the
Mmnesota Public Utilities Commis-
sIOn (MPUC) has exclusive authority
regarding telecommunications ser-
vices, subject to the authority of local
Continued on page 6
""
-. City flood donations appear legal
Cities across the state have
responded to the Cities Helping Cities
program. While a number of cities are
offering personnel and equipment to
flood affected cities, many also want
to donate money. A number of those
cities have contacted the League with
questions about the legality of cities
making donations for flood relief.
Governor Carlson signed Chapter
75 into law on May I, which gives
cities explicit authority to contribute
money to flood affected cities.
However, there are questions about the
effective date of the new law. While
the effective date is being clarified,
cities may want to rely on current law.
Existing state law arguably
provides cities authority to contribute
money to flood affected cities. Minn.
State. 471.85 provides authority for
"any city. . . to transfer its personal
property . . . without consideration to
another public corporation for public
use duly authorized by its governing
body." In 1968, the attorney general
opined that "personal property"
includes money. The only restriction
on the donations is that the money
must be used for a "public use."
While the 1968 Attorney General's
Opinion says that public use must
"directly relate to the public purpose
of the transferring governing body,"
the opinion was not written in re-
sponse to an issue such as a "emer-
gency" or "disaster" relief effort such
as those contemplated under Minn.
Stat. Chap. 12.
In light of the broad cooperative
powers found in Chapter 12, it would
seem permissible for a city to donate
ROW Continued from page 1
gove ~~med.by-the-1egis1 -
tion. It would also require the MPUC
to develop and adopt statewide
construction standards by March I,
1998. An advisory task force would be
formed to make recommendations on
the statewide standards, and provide
input on the calculation of degradation
costs, mapping systems, liability
conditions and indemnification, and
model ordinances for local govern-
ments.
The biII would also give the
MPUC the authority to review local
decisions or regulations which are
alleged to violate a statewide standard.
Local governments would not be
allowed to adopt an ordinance or
regulation that conflicts with an
MPUC construction standard.
The bill also specifies that "a
telephone company that provides cable
television services shall, with respect
to provisioning of those services in
Minnesota, be subject to the same
ranc Ise requirements, procedures,
and fees, and public, educational, and
government access requirements as a
cable communication company...." It
is unclear how this section of the bill is
to be administered or enforced.
Effective dates
The effective dates of the bill are
intricate and important. The section
dealing with statewide standards
becomes effective March I, 1998, or
when the MPUC adopts rules (which-
ever is earlier). However, local
governments would be allowed to
"exercise the authority that existed
before November I, 1996, with regard
to the powers" regarding construction
standards until the rules are adopted.
The intricacy of these interacting
provisions will be discussed in more
detail when the League updates its
model telecommunications ordinance
and at the League's Annual Confer-
ence next month. t"
funds to another city or to the League
of Cities for the purposes of disaster
relief. However, because the law on
this issue is not completely clear, cities
should consult with their city attorney
if they are considering making a cash
donation
Cities have also asked about the
permissibility of donations to private
relief organizations. The attorney
general has concluded that cities
cannot make donations to private
nonprofit organization such as the Red
Cross or the Salvation Army. t"
Thanks for city
histories
About two months ago, the
League sent a mailing to LMC
member city mayors requesting city
histories and various other information
items about their communities.
Almost immediately, we began
receiving responses--Eveleth's return
was the first to arrive, and Burnsville's
came a day later. We would like to say
thank you to all cities that responded
to our request for information. The
response has been great, and the
assortment of unique items exceeded
our expectations. Even a quick
examination of the materials as they
arrive has been informative and
entertaining.
If your city has not yet responded,
there's still time. We'll gladly accept
and greatly appreciate any packets of
infornlation. If you need another copy
of our original request and question-
naire, let us know and we will send it
to you.
Please direct any questions, as
well as completed questionnaires, city
histories, and/or other community
information to Bill Makela, LMC
Collections, 145 University Avenue
West, St. Paul MN 55103-2044
Telephone (612)281-1225 or (800)
925-1122, ext. 1225. Our fax number
is (612) 281-1296. t"
Page 6
LMC Cities Bulletin