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Home My WebLink About2017-10-05 TPC Memorandum 3601 Thurston Avenue N,Suite 100 ENCLOSURE 112Anoka,MN 55303 TPC Phone:763.231.5840 Facsimile:763.427.0520 TPC@PlanningCo.com MEMORANDUM TO: Eric Johnson FROM: Scott Richards DATE: October 5,2017 RE: Oak Park Heights—Small Cell Technology—Planning Commission TPC FILE: 236.01 —17.03 Background As you are aware, a law was enacted during the 2017 legislative session that would allow small cell wireless equipment to be placed on City owned infrastructure in the public right of way. As introduced, the bill would have allowed wireless companies unregulated access to the public right of way, but the League of Minnesota Cities strongly opposed the bill and negotiated new language to maintain some local control. The resulting bill language preserves local authority over access to the public right of way. Please find attached an Information Memo from the League that was distributed on September 13,2017,and discusses cell towers and small cell technologies. The City Council, at their September 26, 2017 meeting, discussed a work program to address the small cell wireless issue and authorized staff to move forward with changes to the City Code, including the Zoning Ordinance. Attached for Reference: Exhibit 1: League of Minnesota Cities—Cell Towers,Small Cell Technologies and Distributed Antenna Systems—September 13,2017 Exhibit 2: City of Bloomington—Right of Way Code Section Exhibit 3: City of Bloomington—Pole Attachment Application/Permit Analysis The City will need to make changes to its Regulation of Public Rights of Way, Chapter 704 of the City Code,to address small cells. Additionally,the City will need to develop a permit application that would lay out the terms and conditions for the small cell wireless provider. Finally, the City should review its regulations found in Section 401.15.P Antennas to add the regulation of small cells on private property. The City of Bloomington has already made changes to its Right of Way Ordinance and developed a draft permit application. Staff will review this example as well as others as they become available. Staff will also work closely with the City Attorney on the proposed language and conformance with State Law. Please find as follows a schedule for amendments to the City Code, including sections of the Regulation of Public Rights of Way and Antenna regulations. A permit application to install small cells in the right of way will also be developed. The schedule includes drafting the changes, working with the Planning Commission on the recommended language and final City Council approval. The project would include drafting the recommending Resolution and Ordinance. The proposed schedule for this work is as follows: September 26,2017: City Council acceptance of proposal and budget. October 12, 2017: Planning Commission discussion of small cell technologies and changes to City Code. November 9, 2017: Planning Commission review of draft language, revisions. December 14, 2017: Planning Commission public hearing and recommendation. December 26, 2017: City Council review of Planning Commission recommendation and approval of the amendment Ordinance. Conclusion The first task of the Planning Commission is to review the issue and example from Bloomington. At the meeting, staff will introduce the topic and discuss what needs to be done to complete the project. At the November meeting we will discuss a draft of the changes that need to be made to the City Code. 2 eri I „dial\ 0 0 INFORMATION MEMO LEAGUE of Cell Towers , SSmall I Cell TechnologiesMINNSSOTA CITIES & Distributed Antenna Systems Learn about large and small cell tower deployment and siting requests for small cell, small wireless and distributed antenna systems (DAS) technology. Better understand the trend of the addition of DAS, small wireless or small cell equipment on existing utility equipment. Be aware of common gaps in city zoning, impact of federal and state law, reasons for collocation agreements and some best practices for dealing with large and small cell towers, small wireless facilities and DAS. RELEVANT LINKS: I . Deployment of large cell towers or antennas A cell site or cell tower creates a "cell" in a cellular network and typically 47 U.S.C. § 253 (commonly known as Section 253 of supports antennas plus other equipment, such as one or more sets of Telecommunications Act). transceivers, digital signal processors, control electronics, GPS equipment, 47 U.S.C. §332 (commonly primary and backup electrical power and sheltering. Only a finite number of known as Section 332 of calls or data can go through these facilities at once and the working range of Telecommunications Act). the cell site varies based on any number of factors, including height of the FCC Website. antenna. The Federal Communications Commission (FCC) has stated that cellular or personal communications services (PCS) towers typically range anywhere from 50 to 200 feet high. The emergence of personal communications services, the increased number N of cell providers, and the growing demand for better coverage have spurred requests for new cell towers, small cell equipment, and distributed antenna systems (DAS) nationwide. Thus, some cellular carriers, telecommunications wholesalers or tower companies, have attempted to 4 eat r quickly deploy telecommunications systems or personal wireless service facilities, and, in doing so, often claim federal law requires cities to allow construction or placement of towers, equipment, or antennas in rights of way. Such claims generally have no basis. Although not completely unfettered, cities can feel assured that, in general, federal law preserves local zoning and land use authority. A. The Telecommunications Act and the FCC 47 U.S.C. § 253 (commonly The Telecommunications Act of 1996 (TCA) represented America's first known as Section 253 of Telecommunications Act). successful attempt to reform regulations on telecommunications in more 47 U.S.C. § 332 (commonly than 60 years, and was the first piece of legislation to address interne known as Section 332 of access. Congress enacted the TCA to promote competition and higher Telecommunications Act). quality in American telecommunications services and to encourage rapid deployment of new telecommunications technologies. This material is provided as general information and is not a substitute for legal advice. Consult your attorney for advice concerning specific situations. 145 University Ave. West www.lmc.org 9/13/2017 Saint Paul, MN 55103-2044 (651 ) 281-1200 or (800) 925-1122 © 2017 All Rights Reserved RELEVANT LINKS: FCC website interpreting The FCC is the federal agency charged with creating rules and policies under Telecommunications Act of 1996. the TCA and other telecommunications laws. The FCC also manages and licenses commercial users(like cell providers and tower companies), as well as non-commercial users(like local governments). As a result,both the TCA and FCC rulings impact interactions between the cell industry and local government. The significant changes in the wireless industry and its related shared wireless infrastructures, along with consumer demand for fast and reliable service on mobile devices, have fueled a frenzy of requests for large and small cell/DAS site development and/or deployment. As a part of this, cities find themselves facing cell industry arguments that federal law requires cities to approve tower siting requests. 47 U.S.C.§253(Section 253 Companies making these claims most often cite Section 253 or Section 332 of Telecommunications Act). of the TCA as support. Section 253 states"no state or local statute or 47 U.S.C.§332(c)(7). regulation may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." FCC 09-99,Declaratory Section 332 has a similar provision ensuring the entry of commercial mobile Ruling(Nov.18,2009). services into desired geographic markets to establish personal wireless service facilities. 47 U.S.C.§253(c)(e) These provisions should not,however,be read out of context. When (Section 253 of Telecommunications Act). reviewing the relevant sections in their entirety, it becomes clear that federal 47 U.S.C.§332(c)(7). law does not pre-empt local municipal regulations and land use controls. Specifically, the law states"[n]othing in this section affects the authority of FCC 09-99,Declaratory a state or local government to manage the public rights of way or to require Ruling(Nov.18,2009). fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights of way ..."and that"nothing in this chapter shall limit or affect the authority of ... local government ... over decisions regarding the placement, construction, and modification of personal wireless service facilities". Sprint Spectrum v.Mills, Courts consistently have agreed that local governments retain their 283 F.3d 404(2nd Cir. 2002). regulatory authority and, when faced with making decisions on placement of towers, antenna or new telecommunication service equipment on city USCOC of Greater Missouri v. Vill.Of Marlborough,618 facilities, they generally have the same rights that private individuals have to F.Supp.2d 1055(E.D.Mo. deny or permit placement of a cellular tower on their property. This means 2009). es an utanmplacement of towers and other personal FCC 09-99,Declaratory wireless cservice reglafeacilitiesdper, includingit , in most situations (though some Ruling(Nov.18,2009). state law restrictions exist regarding regulations of small wireless support structures), controlling height, exterior materials, accessory buildings, and even location. Cities should be careful to make sure that local regulations don't have the effect of completely banning all cell towers or personal wireless service facilities. Such regulation could run afoul of federal law(not to mention state law as well). League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers,Small Cell Technologies&Distributed Antenna Systems Page 2 RELEVANT LINKS: Some cellular companies try to gain unfettered access to city right of way by Vertical Broadcasting v. claiming they are utilities. The basis for such a claim usually follows one of Town of Southampton,84 F. two themes—either that, as a utility, federal law entitles them to entry; or, in Supp/c1379(E.D.N.Y. 2000). the alternative, under the city's ordinances,they get the same treatment as other utilities. Courts have rejected the first argument of entitlement,citing to the specific directive that local municipalities retain traditional zoning discretion. B. State law Paging v.Bd.of Zoning In the alternative,the argument that a city's local ordinances include towers Appeals for Montgomery as a utility has, on occasion and in different states, carried more weight with Cry.,957 F.Supp.805(W.D. a court. To counter such arguments, cities may consider specifically Va.1997). excluding towers, antenna, small cell, and DAS equipment from their ordinance's definition of utilities. The Minnesota Department of Commerce, in a letter to a wireless infrastructure provider, cautioned one infrastructure company that its certificate of authority to provide a local niche service did not authorize it to claim an exemption from local zoning. The Minnesota Department of Commerce additionally requested that the offending company cease from making those assertions. In Minnesota,to clear up confusion about whether wireless providers Letter from Minnesota Department of Commerce to represent telecommunications right-of-way users under state law and to Mobilitie. address concerns about deployment of small wireless technology, the Minn.Stat.§237.162 Legislature amended Minnesota's Right-of-Way User statutes, or Minnesota Minn.Stat.§237.163 ROW Law, in the 2017 legislative session to specifically address small Chapter 94,Art. 9,2017 Regular Session. wireless facilities and the support structures on which those facilities may Minnesota Public Utilities attach. Commission,Meeting Agenda(Nov.3,2016) Because of these amendments, effective May 31, 2017 additional specific state statutory provisions apply when cities,through an ordinance, manage their rights of way, recover their right-of-way management costs (subject to certain restrictions), and charge rent for attaching to city-owned structures in public rights of way. Rent, however, is capped for collocation of small wireless facilities. State law defines "collocate" or "collocation"as a means to install,mount, maintain, modify, operate, or replace a small wireless facility on,under, within, or adjacent to an existing wireless support structure that is owned privately or by a local government unit. Minn.Stat §237.162. The Minnesota ROW Law allows cities to require telecommunications right- Minn.Stat.§237.163 of-way users to get a permit for use of the right of way; however, it creates a Chapter 94,Art. 9,2017 separate permitting structure for the siting of small wireless facilities. Regular Session. League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers,Small Cell Technologies&Distributed Antenna Systems Page 3 RELEVANT LINKS: Because of the recent significant changes in the state law and the specific requirements for deployment of small wireless facilities that do not apply to other telecommunications right-of-way users,cities should work with their city attorneys to review and update their ordinances. C. Limitations on cities'authority 1. Federal law Although federal law expressly preserves local governmental regulatory authority,it does place several substantive and procedural limits on that authority.Specifically,a city: USCOC of Greater Missouri • Cannot unreasonablydiscriminate among providers of functionally Vill.Of Marlborough,618 F.Supp2d 1055(ED.Mo. equivalent services. 2009). • Cannot regulate those providers in a manner that prohibits or has the Minnesota Towers Inc.v. effect of prohibiting the provision of telecommunications services or City ofDuluth,474 F.3d personal wireless services. 1052(8.Cir.2007). • Must act on applications within a reasonable time. NE Colorado Cellular,Inc.v. City of North Platte,764 • Must document denial of an application in writing supported by F.3d 929(8th Cir.2014) "substantial evidence." (denial of CUP for tower must be"in writing"but need not be a separate finding from the reasons in the denial). Smith Co 785 V.Washin ism Proof that the local zoning authority's decision furthers the applicable local CtyCir.2015)(substantial zoning requirements or ordinances satisfies the substantial evidence test. evidence analysis involves Municipalities cannot cite environmental concerns as a reason for denial, whether the local zoning authority's decision is however,when the antennas comply with FCC rules on radio emissions.In consistent with the applicable the alternative,cities can request proof of compliance with the FCC rules. local zoning requirements and can include aesthetic reasons). Bringing an action in federal court represents the recourse available to the cellular industry if challenging the denial of a siting request under federal law.Based on the limitations set forth in the federal law on local land use and zoning authority,most often,when cities deny siting requests,the challenges to those denials claim one of the following: FCC 09-99,Declaratory • The municipal action has the effect of" rohibitin theprovision of Ruling,Nov.18,2009. P P g P personal wireless service." Tower and Antenna Siting • The municipal action unreasonably discriminates among providers ofFAQ sheet r FCC. functionally equivalent services(i.e.,cell providers claiming to be a type T-Mobile West V.Crow, of utilityso theycanget the same treatment as a utilityunder city No.CV08-1337(D.AZ. Dec.16,2009). ordinance). League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers,Small Cell Technologies 8 Distributed Antenna Systems Page 4 RELEVANT LINKS: 2. State law Minn.Stat.§237.162 In addition to mirroringof the federallawrequirements, such as the Minn.Stat.§237.163 some Chapter 94,An. 9,2017 requirement of equal treatment of all like providers, state law permits cities, Regular Session• by ordinance,to further regulate"telecommunications right-of-way users." Minnesota's Telecom ROW Law expressly includes wireless service providers as telecommunications right-of-way users,making the law applicable to the siting of both large and small, wire-lined or wireless telecommunications equipment and facilities, in the rights of way. See further discussion of State law places additional restrictions on the permitting and regulating of state law restrictions in Section II-A,below small wireless facilities and wireless support structure placement. Accordingly, cities should work with city attorneys when drafting, adopting, or amending their ordinance. The Telecom ROW Law still expressly protects local control, allowing cities to deny permits for reasonable public health, welfare, and safety reasons,with no definitions of or limitations on what qualifies as health, welfare, and safety reasons. D. Court decisions Minnesota Towers Inc.v. The 8th U.S. Circuit Court of Appeals(controllinglaw for Minnesota) City of Duluth,474 F.3d pp 1052(8*Cir.2007).Smith recognizes that cities do indeed retain local authority over decisions Comm. o . V.F rity ov253er 8m civ. regarding the placement and construction of towers and personal wireless Ar2015). service facilities. VoiceStream PCSII Corp.v. The 8th Circuit also has heard cases where a carrier or other City of St.Louis, No. 4:04CV732(E.D.Mo.August telecommunications company argued they are a utility and should be treated 3,2005)(city interpretation as such under local ordinances. Absent a local ordinance that includes this of city ordinance treats communication facility as a type of equipment within its definition of utilities, courts do not necessarily utility)• deem cell towers or other personal communications services equipment functionally equivalent to utilities. USCOC of Greater Missouri Additionally, courts have found that the federal law anticipates some v. Vil1.Of Marlborough,618 disparate application of the law, even among those deemed functionally F.Supp2d 1055,1064 (E.D. equivalent. For example, courts determined it reasonable to consider the Mo.2009)(TCA explicitly contemplates some location of a cell tower when deciding whether to approve tower discrimination amount construction(fording it okay to treat different locations differently), providers of functionally so long equivalent services). as cities do not allow one company to build a tower at a specific location at the exclusion of other providers. League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers,Small Cell Technologies&Distributed Antenna Systems Page 5 RELEVANT LINKS: E. City approaches Regulation of placement of cell towers and personal wireless services can For regulation of occur through an ordinance. The Minnesota ROW Law provides cities with telecommunications right-of- comprehensive authority to manage their rights of way. With the unique way users, see Appendix A, Sample Ordinances and application of federal law to telecommunications and the recent changes to Agreements. state law, along with siting requests for locations both in and out of rights of way, many cities find having a separate telecommunications right-of-way user ordinance (in addition to a right-of-way ordinance) allows cities to better regulate towers and other telecommunications equipment, as well as collocation of small wireless facilities and support structures. Some cities also have modified the definitions in their ordinances to exclude cell towers, telecommunications, wireless systems, DAS, small cell equipment, and more from utilities to counter the cell industry's requests for equal treatment or more lenient zoning under the city's zoning ordinances. In addition to adopting specific regulations, many city zoning ordinances recognize structures as conditional uses requiring a permit (or many of these regulations include a provision for variances, if needed). While cities may require special permits or variances to their zoning for siting of large cell facilities, under state law, small wireless facilities and wireless support Minn. Stat. 237.163, Subd. 2 structures accommodating those small wireless facilities are deemed a (f). Chapter 94, Art. 9, 2017 permitted use. The only exception to the presumed, permitted use for small Regular Session. wireless is that a city may require a special or conditional land use permit to install a new wireless support structure in a residentially zoned or historic district. Cities will want to review their zoning to make sure it complies with the Minnesota ROW Law. II. Deployment of small cell technologies and DAS • Small cell equipment and DAS both transmit wireless signals to and from a defined area to a larger cell tower. They are often installed at sites that support cell coverage either within a large cell area that has high coverage needs or at sites within large geographic areas that have poor cell coverage overall. .441104. League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers, Small Cell Technologies & Distributed Antenna Systems Page 6 RELEVANT LINKS: N7 Situational needs dictate when cell providers use small cell towers, as r opposed to DAS technology. Generally, cell providers install small cell towers when they need to target specific indoor or outdoor areas like ica stadiums, hospitals, or shopping malls. DAS technology, alternatively,uses a small radio unit and an antenna(that directly link to an existing large cell tower via fiber optics). Installation of a DAS often involves cell providers using the fiber within existing utility structures to link to its larger cell tower. Cities sometimes are asked to provide the power needed for the radios, which the city can negotiate into the leasing agreement with the cell provider. A. Additional zoning and permitting needs under state law Minn.Stat.§237.162. Historically, many cities' ordinances address large cell sites,but not small Minn.Stat.§237.163. Chapter 94,Art. 9,2017 cell towers or DAS. With the recent changes to state law, cities should work Regular Session. with their city attorney to review their ordinances in consideration of the See Appendix A,Sample Ordinances and Agreements. new statutory permit process for the siting of small wireless facilities. See League FAQ on Cities can charge rent(up to a cap for small wireless siting)under the statute Minnesota 2017 for placement of cell technology or DAS on existing or newly installed Telecommunication Right of support structures, like poles or water towers; and, also, can enter into a Way User Amendments(July 2017). separate agreement to address issues not covered by state law or ordinance. Cities should work with their city attorney to get assistance with drafting these agreements and any additional documents, like a bill of sale(for transfer of pole from carrier to city), if necessary. See Appendix A,Sample The terms and conditions of these agreements, called collocation Ordinances and Agreements agreements, for siting of small wireless facilities, most likely will mirror agreements formerly referred to as master licensing agreements, often including provisions such as: • Definitions of scope of permitted uses. • Establishment of right-of-way rental fee(note statutory limitations). • Protection of city resources. • Provision of contract term(note statutory limitations). • Statement of general provisions. • Maintenance and repair terms. • Indemnity provisions. • Insurance and casualty. • Limitation of liability provision. • Terms for removal. League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers,Small Cell Technologies&Distributed Antenna Systems Page 7 RELEVANT LINKS: State law does not require a separate agreement, and some cities have chosen to put these provisions in their ordinance or permit instead. For cities that choose to have a separate agreement in place, they must develop and make that agreement publicly available no later than November 31,2017 (six months after the effective date of this act)or three months after receiving a small wireless facility permit application from a wireless service provider. The agreement must be made available in a substantially complete form; however, the parties to the small wireless facility collocation agreement can incorporate additional mutually agreed upon terms and conditions. The law classifies any small wireless facility collocation agreement between a local government unit and a wireless service provider as public data,not on individuals, making those agreements accessible to the public under Minnesota's Data Practices Law. Minn.Stat.§237.162 Additionally,the new amendments to Minnesota's Telecom ROW Law set Minn.Stat.§237.163 Chapter 94,Art. 9,2017 forth other requirements that apply only to small cell wireless facility Regular session. deployment. The 2017 amendments changed Minnesota's ROW Law significantly,the details, of which, can be found in the League's FAQ on Minnesota 2017 Telecommunication Right of Way User Amendments(July 2017). However, after the amendments, the law now generally provides: See League FAQ on • A presumption ofpermitted use in all zoningdistricts, except in districts Minnesota 2017 p p p Telecommunication Right of zoned residential or historical districts. Way User Amendments(July • The requirement that cities issue or deny small wireless facility requests 2017). within 90 days, with a tolling period allowed upon written notice to the applicant,within 30 days of receipt of the application. • An allowance to batch applications (simultaneously submit a group of applications), with the limitation to not exceed 15 small wireless requests for substantially similar equipment on similar types of wireless support structures within a two-mile radius. • Rent not to exceed $150 per year with option of an additional $25 for maintenance and allowances for electricity, if cities do not require separate metering. • The limitation that cities cannot ask for information already provided by the same applicant in another small cell wireless facility application, as identified by the applicant, by reference number to those other applications. • A restriction that the height of wireless support structures cannot exceed 50 feet,unless the city agrees otherwise. • A restriction that wireless facilities constructed in the right of way may not extend more than 10 feet above an existing wireless support structure in place. League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers,Small Cell Technologies&Distributed Antenna Systems Page 8 RELEVANT LINKS: • A prohibition on moratoriums with respect to filing, receiving, or processing applications for right-of-way or small wireless facility permits; or issuing or approving right-of-way or small wireless facility permits. For cities that did not have a right-of-way ordinance in place on or before May 18, 2017, the prohibition on moratoria does not take effect until January 1, 2018, giving those cities an opportunity to enact an ordinance regulating its public rights-of-way. NOTE: These additional state law requirements do NOT apply to collocation on structures owned, operated maintained or served by municipal utilities. Also,the small wireless statutory requirements do not invalidate agreements in place at the time of enactment of the 2017 amendments(May 31, 2017). 47 U.S.C.§332(commonly The siting of DAS or new small cell technologies also must comply with the known as Section332 of Telecommunications Act). same restrictions under federal law that apply to large cell sitings. Specifically, a city: FCC 09-99,Declaratory • May not unreasonablydiscriminate among providers of functionally(Nov.18,2009). equivalent services. FCC 14-153,Report&Order • May not regulate in a manner that prohibits or has the effect of (October 21,2014). prohibiting the provision of personal wireless services. • Must act on applications within a reasonable time. • Must make any denial of an application in writing supported by substantial evidence in a written record. Because of the complexities in the state law and the overlay of federal regulations, some cities have found it a best practice to adopt or amend a telecommunications right-of-way ordinance separate from their general right-of-way management ordinance. Cities that do not choose to adopt separate ordinances, at a minimum, should work with their attorney to review and amend their existing right-of-way ordinances, if necessary, to accommodate for telecommunications right-of-way users and the recent state law amendments for small wireless facilities. For example, since state law now recognizes small wireless facilities as a permitted use, zoning ordinances that require conditional use permits for these facilities likely will need amending. Since wireless providers seek to attach their small cell and DAS equipment to city-owned structures,many cities choose to have a separate agreement in place to address terms and conditions not included in ordinances or permits. Minn.Stat.§237.163, If the city chooses to do so,the law requires the city to have these Subd.3a(f). agreements available in a substantial form so applicants can anticipate the Chapter 94,Art. 9,2017 Regular Session. terms and conditions. Again, cities should work with the city attorney to See Appendix A Sample draft a template agreement governing attachment of wireless facilities to Ordinances and Agreements. municipally owned structures in the right of way. League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers,Small Cell Technologies&Distributed Antenna Systems Page 9 RELEVANT LINKS: With the nationwide trend encouraging deployment of these new technologies, if a city denies an application, it must do so in writing and provide detailed reasonable findings that document the health,welfare, and safety reasons for the denial. With the unique circumstances of each community often raising concerns about sitings, cities may benefit from proactively working with providers. B. Modifications of existing telecommunication structures Section 6409(a)of the If a siting request proposes modifications to and/or collocations of wireless Middle Class Tax Relief and Joe Creation Act of 2012, transmission equipment on existing FCC-regulated towers or base stations, codified at 47 U.S.C.§1455. then federal law further limits local municipal control. Specifically, federal law requires cities to grant requests for modifications or collocation to FCC Public Notice AD 12- existing FCC-regulated structures when that modification would not 2047(January 25,2013). "substantially change"the physical dimensions of the tower or base station. CC 14-1ber 2,Re p j t&Order The FCC has established guidelines on what"substantially change the ctphysical dimensions"means and what constitutes a"wireless tower or base station." FCC Public Notice AD 12- Once small cell equipment or antennas gets placed on that pole, then the pole 2047(January 25,2013). becomes a telecommunication structure subject to federal law and FCC regulations. Accordingly, after allowing collocation once, the city then must comply with the more restrictive federal laws that allow modifications to these structures that do not substantially change the physical dimensions of the pole, like having equipment from the other cell carriers. FCC Public Notice AD 12- Under this law, it appears cities cannot ask an applicant who is requesting 2047(January 25,2013). modification for documentation information other than how the modification City of Arlington Texas,et. impacts the physical dimensions of the structure. Accordingly, al. V.FCC,et.al.,133 S.Ct. 1863,1867(2013)(90 days documentation illustrating the need for such wireless facilities or justifying to process collocation the business decision likely cannot be requested. Of course, as with the other application and 150 days to process all other applications, siting requests, state and local zoning authorities must take prompt action on relying on§332(c)(7)(B)(ii)). these siting applications for wireless facilities (60-day shot clock rule). This model ordinance and Two wireless industry associations,the WIA(formerly known the PCIA other information can beas ) found at National and CTIA, collaborated with the National League of Cities,the National Association of Counties Association of Counties, and the National Association of Website. Telecommunications Officers and Advisors to: (1) develop a model ordinance and application for reviewing eligible small cell/DAS facilities requests under federal law; (2)discuss and distribute wireless siting best practices; (3)create a checklist that local government officials can use to help streamline the review process; and(4)hold webinars regarding the application process. League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers,Small Cell Technologies&Distributed Antenna Systems Page 10 RELEVANT LINKS: III. Moratoriums The cellular industry often challenges moratoriums used to stall placement of cell towers, as well as small cell/DAS technology,until cities can address regulation of these structures. Generally,these providers argue that these moratoriums do one of the following: • Prohibit or have the effect of prohibiting the provision of personal wireless services. • Violate federal law by failing to act on an application within a reasonable time. Minn.Stat§237.163,subd. State law now prohibits moratoriums with respect to: (1) filing, receiving, or 2(d).Chapter 94,Art. 9, 2017 Regular Session. processing applications for right-of-way or small wireless facility permits; or (2)issuing or approving right-of-way or small wireless facility permits. For cities that did not have an ordinance enabling it to manage its right-of-way on or before May 18, 2017, the prohibition on moratoria does not take effect until January 1,2018, giving those cities an opportunity to enact an ordinance regulating its public rights-of-way. IV. Conclusion With the greater use of calls and data associated with mobile technology, cities likely will see more new cell towers, as well as small cell technology/DAS requests. Consequently, it would make sense to proactively review city regulations to ensure consistency with federal and state law, while still retaining control over the deployment of structures and the use of rights of way. League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers,Small Cell Technologies&Distributed Antenna Systems Page 11 Appendix A: Sample Ordinances and Sample Agreements Many cities address cell towers in their ordinances already.For informational purposes only, the links below reference some telecommunications facilities ordinances in Minnesota. PLEASE NOTE,these ordinances reflect each city's unique circumstances and may pre-date the 2017 Legislative Session which,then,would not have considered the amendments to Minn. Stat.§§237.162,237.163 when drafted. Sample Telecommunications Ordinances Revised Model Right-of-Way Ordinance City of Edina(predates 2017 amendments) Ordinance:(Chapter 34:Telecommunications) City of Brainerd Memo to Planning Commission from City Planner,July 13,2017 Re:Draft Ordinance: Section 35:Anetennas and Towers City of Minneapolis Ordinance:(Amendment to Ordinance to accommodate Small Cell/DAS equipment) CPED Staff Report,City of Minneapolis regarding Amendment City of Bloomington Ordinance:(Part II City Code,Chapter 17:Streets and Rights-of-Way) Ordinance:(No.2017-16,Amending Section 14.03 of the City Code Concerning the Permit Fee Permit:Small Cell Permit Sample Collocation Agreement for DAS/Small Call Texas City Attorney Association Addendum to Local Gov.Code,Chapter 283 San Antonio,Texas Boston,Massachusetts San Francisco,California League of Minnesota Cities Information Memo: 9/13/2017 Cell Towers,Small Cell Technologies 8 Distributed Antenna Systems Page 12 bz City of Bloomington ARTICLE IV: RIGHT-OF-WAY MANAGEMENT AND LOCATING OF UNDERGROUND FACILITIES §17.64 FINDINGS AND PURPOSE. §17.64.01 ELECTION TO MANAGE THE PUBLIC RIGHTS-OF-WAY. §17.65 DEFINITIONS. The following words,terms and phrases,as used herein,have the following meanings unless the context clearly indicates otherwise. APPLICANT.Any person requesting permission to excavate or obstruct a right-of- way. CITY.The City of Bloomington,Minnesota. CITY MANAGEMENT COSTS.The actual costs incurred by the city for public rights- of-way management;including,but not limited to,costs associated with registering applicants seeking permission to excavate or obstruct a right-of-way;issuing, processing and verifying right-of-way permit applications;inspecting job sites and restoration projects;maintaining,supporting,protecting or moving user equipment during public right-of-way work;determining the adequacy of right-of- way restoration;restoring work inadequately performed after providing notice and opportunity to correct the work;mapping of"as-built"locations of facilities located in rights-of-way;and revoking right-of-way permits and performing all other functions required by this Article IV,including other costs the city may incur in managing the provisions of this Article IV. COMMISSION.Minnesota Public Utilities Commission. CONGESTED RIGHT-OF-WAY.A crowded condition in the subsurface of the public right-of-way that occurs when the maximum lateral spacing between existing underground facilities does not allow for construction of new underground facilities without using hand digging to expose the existing lateral facilities in conformance with M.S.§216D.04,subd.3,as it may be amended from time to time,over a continuous length in excess of 500 feet. CONSTRUCTION PERFORMANCE BOND.Any of the following forms of security provided at Director's option: (1) Individual project bond,including a"license and permit"bond; (2) Cash deposit; (3) Security of a form listed or approved under M.S.§15.73,as it may be amended from time to time; (4) Letter of credit,in a form acceptable to the city; (5) Self-insurance,in a form acceptable to the city;or (6) A blanket bond for projects within the city,or other form of construction bond, for a time specified and in a form acceptable to the city. DATA CONVERSION FEE.The fee covering the city's cost of converting each submission of data required by this Article IV into the city's electronic format,which shall apply separately to each set of data required, including without limitation the permit application, scaled drawings and mapping data. DEGRADATION. A decrease in the useful life of the right-of-way caused by excavation in or disturbance of the right-of-way, resulting in the need to reconstruct such right-of-way earlier than would be required if the excavation or disturbance did not occur. DEGRADATION COST. Subject to Minnesota Rules 7819.1100 means the cost to achieve a level of restoration as determined by the city at the time the permit is issued, not to exceed the maximum restoration shown in Plates 1 to 13 (located in Appendix A), set forth in Minnesota Rules parts 7819.9900 to 7819.9950. DEGRADATION FEE. The fee established at the time of permitting by the city to recover costs associated with the decrease in the useful life of the right-of-way caused by the excavation, and which equals the degradation cost. DELAY PENALTY. The penalty imposed as a result of unreasonable delays in the permitted work within the right-of-way including construction, excavation, obstruction, patching or restoration as established by a permit. DIRECTOR. The City's Director of Public Works or designee. DISCONTINUED FACILITY. (1) A facility no longer in service or physically disconnected from a portion of the operating facility, or from any other facility, that is in use or still carries service; or (2) a facility that is deemed discontinued by the right-of- way user. EMERGENCY. 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 restoreservice to a customer. EMERGENCY HOLE. Excavation of a hole necessitated by a condition creating a clear and immediate threat to life, health, safety or property or requiring immediate repair or replacement in order to restoreservice to a customer. EQUIPMENT. Any tangible asset used to install, repair or maintain facilities in any right-of-way. EXCAVATE. To dig into or in any way remove or physically disturb or penetrate any part of a right-of-way. EXCA VA TION PERMIT. A permit which must be obtained before a person may excavate in a right-of-way. An EXCA VA TION PERMIT allows the holder to excavate in that part of the right-of-way described in the permit. FACILITY or FACILITIES. Any tangible asset in the right-of-way required to provide utility service. The term does not include facilities to the extent the location and relocation of such facilities are preempted by M.S. § 161 .45, as it may be amended from time to time, governing utility facility placement in state trunk highways. HIGH DENSITY CORRIDOR. 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. HOLE. An excavation in the right-of-way having a length that is equal to or less than the width pavement or adjacent pavement of the right-of-way for the section of the roadway where the work is occurring OBSTRUCT.To place any tangible object upon a public right-of-way so as to hinder free and open passage over that or any part of the right-of-way for an aggregate period of eight hours or more in conjunction with the issuance of a right-of-way permit. OBSTRUCTION PERMIT.A permit which must be obtained before a person may obstruct a right-of-way,allowing the holder to hinder free and open passage over the specified portion of that right-of-way by placing equipment described therein on the right-of-way for the duration specified in the permit including a blanket permit for a period of time and for types of work specified by the Director. PATCH or PATCHING.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 pavement for a minimum of two feet beyond the edges of the excavation in all directions.A PATCH is considered full restoration only when the pavement is included in the city's five year project plan. PAVEMENT.Any type of improved surface that is within the public right-of-way and that is paved or otherwise constructed with paver blocks,bituminous,concrete,aggregate or gravel. PERMIT HOLDER.Any person to whom a permit to excavate or obstruct a right-of- way has been granted by the city under this Article IV. PERSON.An individual or entity subject to the laws and rules of this state,however organized,whether public or private,whether domestic or foreign,whether for profit or nonprofit,and whether natural,corporate,or political.Examples include: (1) A business or commercial enterprise organized as any type or combination of corporation,limited liability company,partnership,limited liability partnership, proprietorship,association,cooperative,joint venture,carrier or utility and any successor or assignee of any of them; (2) A social or charitable organization;and (3) Any type or combination of political subdivision,which includes the executive, judicial or legislative branch of the state,a local government unit or a combination of any of them. POTHOLING.Excavating the area above an underground facility to determine the precise location of the underground facility without damage to it,before excavating within two feet of the marked location of the underground facility,as required in M.S. Chapter 216D,as it may be amended from time to time. PUBLIC RIGHT-OF-WAY.The area on,below or above 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 of the city. REGISTRANT.Any person required to register pursuant to§17.66 of this Article IV: (1) Who has or seeks to have its facilities or equipment located in any right-of-way; or (2) In any way occupies or uses,or seeks to occupy or use,the right-of-way or place its facilities or equipment in the right-of-way. RESTORE or RESTORATION.The process by which the right-of-way and surrounding area,including pavement and foundation,is returned to the same condition and life expectancy that existed before excavation. RESTORATION COST. The amount of money paid to the city by a permit holder to achieve the level of restoration according to city Plates 1 to 13 (located in Appendix A), which are attached hereto and incorporated herein. RIGHT-OF-WAY PERMIT. An excavation permit, obstruction permit or a utility permit, or any combination thereof, depending on the context required by this Article IV. RIGHT-OF-WAY PERMIT PROCESSING FEE. The portion of the right-of-way permit fee covering the city's cost of processing the permit application that is not subject to refund upon withdrawal of the application. RIGHT-OF-WAY USER. (1)A telecommunications right-of-way user as defined by M.S. § 237.162, subd. 4, as it may be amended from time to time; or(2) a person owning or controlling a facility in the public right-of-waythat is used or is intended to be used for providing utility service, and who has a right under the law, franchise or ordinance to use the public right-of-way. SERVICE or UTILITY SERVICE. Includes,but is not limited to: (1)those services provided by a public utility as defined in M.S. § 216B.02, subds. 4 and 6, as it may be amended from time to time; (2) services of a telecommunications right-of-way user, including transporting of voice or data information; (3)natural gas or electric energy or telecommunications services provided by a governmental unit; (4)pipeline, community antenna television, fire and alarm communications, water, sewer, electricity, light, heat, cooling energy or power services; (5)the services provided by a corporation organized for the purposes set forth in M.S. § 301B.01, as it may be amended from time to time; (6) the services provided by a district heating or cooling system; and(7) cable communication systems as defined in M.S. Chapter 238, as it may be amended from time to time. SERVICE LATERAL. An underground facility that is used to transmit, distribute or furnish gas, electricity, communications or water from a common source to an end-use customer. A SERVICE LATERAL is also an underground facility that is used in the removal of wastewater from a customer's premises. SUPPLEMENTARY APPLICATION. An application made to excavate or obstruct more of the right-of-way than allowed in, or to extend, a permit that had already been issued. TELECOMMUNICATION RIGHT-OF-WAY USER. A person owning or controlling a facility in the right-of-way, or seeking to own or control a facility in the 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 Article IV, a cable communication system defined and regulated under M.S. Chapter 238, as it may be amended from time to time, and telecommunication activities related to providing natural gas or electric energy services whether provided by a public utility as defined in M.S. § 216B.02, as it may be amended from time to time, a municipality, a municipal gas or power agency organized under M.S. Chapters 453 and 453A, as they may be amended from time to time, or a cooperative electric association organized under M.S. Chapter 308A, as it may be amended from time to time, are not TELECOMMUNICATIONS RIGHT-OF-WAY USERS. TEMPORARY SURFACE. The compaction of subbase and aggregate base and replacement, in kind, of the existing pavement only to the edges of the excavation. TRENCH. An excavation having a length that is in excess of the width of the right-of- way for the sections of roadway where the work is occurring, including a directional bore. WIRELESS TELECOMMUNICATION FACILITY. A tangible asset used to provide wireless telecommunication or data services, including all antennas, support devices, equipment including ground equipment, associated cables and attachments. (Ord. 98-54,passed 11-16-1998; Ord. 2001-20,passed 6-18-2001; Ord. 2006-32,passed 7-24-2006; Ord. 2008-1,passed 1-14-2008) § 17.66 REGISTRATION. § 17.67 REPORTING OBLIGATIONS. § 17.68 PERMIT REQUIRED. (a) Permit required. Except as otherwise provided in this code, no registrant may obstruct or excavate any right-of-way without first having been issued the appropriate right-of-way permit pursuant to this section and conspicuously displayed or otherwise available at all times at the indicated work site and shall be available for inspection by the city. (1) Excavation permit. An excavation permit is required by the registrant to excavate that part of the right-of-way described in each permit and to hinder free and open passage over the specified portion of the right-of-way by placing facilities therein, to the extent and for the duration specified in the permit. (2) Obstruction/aerial/interduct permit. An obstruction/aerial/interduct permit is required by a registrant to hinder free and open passage over the specified portion of right-of-way by placing equipment described therein within the right-of-way, to the extent and for the duration specified in the permit. An obstruction/aerial/interduct permit is not required if a registrant has been issued a valid excavation permit for the same project. (3) Pole attachment permit. A pole attachment permit is required by the registrant in order to attach a wireless telecommunication facility to an existing public utility structure in the public right-of-way. A pole attachment permit is not required if a registrant has been issued a valid excavation permit for the same project. (b) Permit reprocessing fee. No registrant may excavate or obstruct the right-of-way beyond the date or dates specified in the permit or do any work outside the area specified in the permit unless: (1)the registrant makes a supplementary application for an extension of the permit or a new permit before expiration of the initial permit,pays the applicable permit fee as set forth in Chapter 14 of this code; and(2) is granted a new permit or an extension of the initial permit by the Director. Verbal extensions of the initial permit may be granted by the Director for a period of no greater than 48 hours or for emergencies without additional fee. (c) Diligence in performance work; delay penalty. Work shall progress in an expeditious manner as permitted by weather conditions until completion in order to avoid unnecessary inconvenience to the public. If the work is not done in an expeditious manner, the city may, after 72-hour notice to the permit holder, fill the excavation or repair the street. The permit holder upon demand made by the city shall pay the entire cost of such work. In accordance with Minnesota Rules 7819.1000, subpart 3, and notwithstanding subsection(b) above, the city shall establish and impose a delay penalty where excavating or obstruction work in the right-of-way is not completed within the time specified in the permit and no supplementary application has been made for a permit extension or a new permit prior to the expiration date of the permit where the delays in right-of-way excavation, obstruction,patching or restoration are unreasonable. The delay penalty shall be established from time to time by City Council resolution. A delay penalty will not be imposed for delays due to force majeure, including inclement weather, civil strife, acts of God or other circumstances beyond the control of the applicant. (d) Application and fee. An application for a right-of-way permit shall be made on forms provided by the city and shall be accompanied by the fees set forth in Chapter 14 of this code and which are established to reimburse the city for city costs. A person who pays a franchise fee to the city in accordance with a franchise agreement shall be exempt from the payment of permit fees. All applications must be in the name of the registrant. No joint applications will be accepted. If the work is to be performed by an agent, contractor or subcontractor on behalf of the registrant, such 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. The applicant will be requested to submit in English measurement two paper copies at 50 scale plans and one copy in Auto CAD format (Hennepin County Coordinate system) with X, Y, Z dimensions to one foot accuracy electronic plan. The plans must be dimensional and show existing utilities, curb and gutter, sidewalks,bikeways, signal poles,driveways,boxes and structures. If the applicant chooses to submit this data in a different format, it shall be responsible for the additional payment of the data conversion fee set forth in § 14.03 of this city code; (2) A description of the methods that will be used for installation; (3) A proposed schedule for all work; (4) The location of any public streets, sidewalks or alleys that will be temporarily closed to traffic during the work; (5) A description of methods for restoring any public improvements disrupted by the work; and (6) Any other information reasonably required by the city. (e) Security. A performance bond, letter of credit or cash deposit in an amount determined by the Director shall be required from each applicant. The Director shall have the right to determine the form of security that must be filed. The applicant, at its option, may post security sufficient to cover all projects contemplated for a one-year period. Any performance bond or letter of credit must be approved by the City Attorney as to form. Security required pursuant to this subsection(e) shall be conditioned that the holder will perform the work in accordance with this Article IV and applicable regulations, will pay to the city any costs incurred by the city in performing work pursuant to this Article IV, 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 right-of-way permit or 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 or willful actions 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 right-of-way permit, specifically including full compliance with § 17.79 of this city code. For permits allowing excavations within public streets, such bond, letter of credit or cash deposit shall be held for a period of not less than 24 months to guaranty adequacy of all restoration work. (f) Permit issuances; conditions. The Director shall grant a right-of-way permit upon finding the work will comply with the requirements of this Article IV. The Director may impose reasonable conditions 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 ensure completion of restoration of the right-of- way within a specified period,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 right-of-way permit shall be issued to any person who has failed to register pursuant to § 17.66 of this Article IV. (g) Exceptions. No permit shall be required for the following: (1) Surface landscaping work; (2) Driveways, sidewalks, curb and gutter, and parking lots, street furnishings,bus stop benches, shelters,posts and pillars; (3) Snow removal activities; (4) Irrigation systems provided that the system does not connect directly to water mains in the right-of-way; (5) Activities of the city except sanitary sewer and water utilities; and (6) Routine obstruction of the right-of-way for less than eight hours in total duration, including, without limitation, switching, fuse replacement, transformer replacement, line guard placement, leak surveys, anode installations and inspections. (Ord. 98-54,passed 11-16-1998; Ord. 2001-20, passed 6-18-2001; Ord. 2006-32,passed 7-24-2006) § 17.69 TIMELINESS OF WORK/SUPPLEMENTARY NOTIFICATION. The work to be done under the right-of-way permit and the patching 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 circumstances beyond the control of the permit holder or when work was prohibited as unseasonal or unreasonable. If the obstruction or excavation of the right-of-way begins later or ends sooner than the date given on the permit, the permit holder must notify the city by a supplementary application of the accurate information as soon as the permit holder knows this information. (Ord. 98-54, passed 11-16-1998; Ord. 2006-32,passed 7-24-2006) § 17.70 STANDARDS FOR CONSTRUCTION OR INSTALLATION. (a) General standards. The excavation,backfilling,patching and restoration and all other work performed in the right-of-way must be done in conformance with all applicable Minnesota Rules, including without limitation Rules 7819.1100, 7819.500 and 7819.5100, as well as all of the requirements of this city code and its other conditions and requirements in so far as they are not inconsistent with M.S. §§ 237.162 through 237.163, as they may be amended from time to time. Installation of service laterals must be performed in accordance with Minnesota Rules Chapter 7560 and this city code. The permit holder shall comply with the following standards when performing the work authorized under the permit: (1) Take such precautions as are necessary to avoid creating unsanitary conditions. Observe and comply with all laws, rules and regulations of the state and city; (2) Conduct the operations and perform the work in a manner as to ensure the least obstruction to and interference with traffic; (3) Take adequate precautions to ensure the safety of the general public and those who require access to abutting property; (4) Notify adjoining property owners prior to commencement of work which may disrupt the use of and access to such adjoining properties; (5) Comply with the Uniform Traffic Manual for Traffic Control at all times during construction or installation; (6) Exercise precaution at all times for the protection of persons, including employees and property; (7) Protect and identify excavations and work operations with barricade flags and, if required, by flaggers in the daytime and by warning lights at night; (8) Provide proper trench protection as required by OSHA when necessary and depending upon the type of soil, in order to prevent cave-ins endangering life or tending to enlarge the excavation; (9) Protect the root growth of trees and shrubbery; (10) If possible,provide for space in the installation area for other telecommunication right-of-way users and companies which install facilities in public rights-of-way; (11) Maintain access to all properties and cross streets as possible during construction and installation and maintain emergency vehicle access at all times; (12) Maintain alignment and grade unless otherwise authorized by the city. Changes not approved by the city will require removal and reconstruction; (13) During plowing or trenching of facilities, a warning tape must also be placed at a depth of 12 inches above copper cables with over 200 pairs and above fiber facilities; (14) Below concrete or bituminous paved road surfaces, directional bore facilities must be installed in conduit of a type determined by the permit holder; (15) The placing of all telecommunications facilities must comply with the National Electric Safety Code, as incorporated by reference in M.S. § 326B.35, as it may be amended from time to time; (16) Locate property lines near right-of-way lines and replace any destroyed property corners. A Minnesota licensed surveyor must be used; (17) 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; (18) Excavating, trenches and jacking pits shall be protected when unattended to prevent entrance of surface drainage; (19) All backfilling must be placed in six-inch layers at optimum moisture and compacted with the objective of attaining 95%of Standard Proctor. Compaction shall be accomplished with hand, pneumatic or vibrating compactors as appropriate; (20) Backfill material shall be subject to the approval of the Director . The Director may permit backfilling with the material from the excavation provided such material is granular in nature and acceptable to the Director ; (21) Compacted backfill shall be brought to bottom of the gravel of the approved street section; (22) All work performed in the right-of-way shall be done in conformance with city Plates 1 to 13 (located in Appendix A), unless a less stringent standard is approved by the Director ; (23) Street and pedestrian traffic shall be maintained throughout construction unless provided otherwise by the permit; (24) No lugs damaging to roadway surfaces may be used; (25) Dirt or debris must be periodically removed during construction; and (26) Other reasonable standards and requirements of the Director . (b) Standards for installation of underground utilities. The permit holder shall comply with the following standards when installing facilities underground. (1) Underground facilities must be placed as far off the roadway as possible to provide access from outside of the paved area. (2) Buried fiber facilities shall be at a minimum depth of three feet and a maximum depth of four feet unless an alternate location is approved in advance by the Director . Buried copper facilities below concrete or bituminous paved road surfaces must be placed at no less than three feet but no more than four feet deep. Other buried copper facilities must be placed at a minimum depth of 30 inches and a maximum depth of four feet. (3) Crossing of streets and hard surfaced driveways shall be directional bored unless otherwise approved by the Director . (4) If construction is open cut, the permit holder must install the visual tracers within 12 inches and over buried facilities. If other construction methods are used, substitute location methods will be considered. (5) The permit holder shall register with Gopher State One Call and comply with the requirements of that system. (6) Compaction in trench shall be 95% of Standard Proctor and copies of test results will be submitted to the Director . Tests will be required at the discretion of the Director . Tests must be conducted by an independent testing firm at locations approved by the Director . Recompaction and new tests will be required if densities are not met. (7) The facilities shall be located so as to avoid traffic signals and signs which are generally placed a minimum of four feet behind the curb. (8) When utilizing trenchless installation methods to cross an area in which a municipal utility is located, and when directed by the city, the permit holder shall excavate an observation hole over the utility to ensure that the city utility is not damaged. (9) All junction boxes or access points shall be located no closer than ten feet from city hydrants, valves, manholes, lift stations or catch basins unless an alternate location is approved by the city. (10) Underground facilities shall not be installed between a hydrant and an auxiliary valve. (11) Underground facilities shall not be installed within five feet of hydrants, valves, lift stations or manholes in areas where utility easements exist beyond the right-of-way. In those areas in which no utility easement exists,placement of an underground facility shall be between the edge of pavement and no closer than three feet to an existing city utility appurtenance unless an alternate location is approved by the city. (12) Buried telecommunication facilities must have a locating wire or conductive shield,except for di-electric cables. (13) Buried fiber facilities must be placed in a conduit of a type determined by the right-of-way user unless the permit holder obtains a waiver from the city. (c) Standards for installation of overhead facilities.The permit holder shall comply with the following standards when installing facilities overhead: (1) All wires must be a minimum of 18 feet above ground and at a location that does not interfere with traffic signals,overhead signs or street lights. (d) Standards for wireless telecommunication facilities. (1) Purpose.The city desires high quality wireless communication services to accommodate the needs of residents and businesses.At the same time,the city strives to minimize the negative impacts that wireless telecommunication facilities can have on aesthetics and public safety.Due to the many services that must be delivered within its limited area,the city also strives to avoid unnecessary encumbrances within the public right-of-way.The city allows and regulates wireless telecommunication facilities outside of the public right-of-way through performance standards and height limits.The purpose of this section is to regulate wireless telecommunication facilities within the public right- of-way in a manner that balances desire for service with aesthetic,public safety and right- of-way flexibility concerns. Public rights-of-way are appropriate locations for wireless telecommunication facilities that present minimal impacts(i.e.,small pole attachments that do not require new poles,do not require pole extensions,and do not have associated ground mounted equipment).Wireless telecommunication facilities that require greater heights than can be afforded by existing poles in the public right-of-way and that require ground mounted equipment are more appropriately sited outside the public right-of-way in accordance with adopted performance standards(§19.63.05 of this code).However,the city recognizes that as wireless technology advances,some residential areas of the city may be hard to serve with wireless technology due to the lack of siting alternatives in the immediate vicinity.In such areas,where no alternative non-right-of-way locations are available,wireless telecommunication facilities that require pole extensions and ground equipment will be allowed in the public right-of-way subject to the requirements of this section which are meant to protect the public health,safety and welfare. (2) Wireless telecommunication facilities as pole attachments.Wireless telecommunication facilities that comply with the following requirements may be attached to existing public utility structures within the right-of-way after issuance of a pole attachment permit. (A) The wireless telecommunication facility shall not extend above the top of the existing public utility structure and the height of the existing public utility structure shall not be increased to accommodate the wireless telecommunication facility. (B) If the public utility structure must be replaced to structurally accommodate the wireless telecommunication facility,the replacement public utility structure height shall not exceed the existing public utility structure height and the replacement public utility structure diameter shall not exceed the existing public utility structure diameter by more than 50%. (C) The wireless telecommunication facility shall not be larger than three cubic feet and shall have no individual surface larger than four square feet. (D) The wireless telecommunication facility shall not extend outward from the existing pole or tower or arm thereof by more than two and one-half feet, except that an antenna one-half inch in diameter or less may extend an additional six inches. (E) The wireless telecommunication facility shall include no ground mounted equipment within the planned widened rights-of-way. (F) The wireless telecommunication facility shall not interfere with public safety communications and shall meet the requirements of§ 19.63.05 of this code. (G) Wireless telecommunication facilities in the right-of-way shall be removed and relocated at city request subject to the provisions of this Article IV. (H) The wireless telecommunication facility shall not block light emanating from the public utility structure and shall not otherwise interfere with the original use of the public utility structure. (3) Wireless telecommunication facilities as pole extensions or with ground mounted equipment.Wireless telecommunication facilities that require increased public utility structure height or that have ground mounted equipment may be erected in the public right-of-way only when in compliance with the following provisions and after issuance of a pole attachment permit or excavation permit. (A) The applicant shall demonstrate to the satisfaction of the Planning Manager or designee that the wireless telecommunication facility cannot be placed in a code complying location outside the right-of-way within one-quarter mile of the proposed location. (B) The replacement public utility structure, including lightening rods and all other attachments, shall not exceed the height of the existing public utility structure by more than 15 feet. Once the height of a public utility structure has been increased under the provisions of this section, the height shall not be further increased. (C) The replacement public utility structure diameter shall not exceed the existing public utility structure diameter by more than 50%. (D) The wireless telecommunication facility shall not extend outward from the public utility structure by more than two feet. (E) If feasible and desirable, as determined by the Planning Manager or designee, the replacement public utility structure shall match the original and surrounding public utility structures in materials and color. (F) The wireless telecommunication facility shall not interfere with public safety communications and shall meet the requirements of§ 19.63.05 of this code. (G) A pole attachment or excavation permit for a wireless telecommunication facility that has ground mounted equipment will be issued only if the issuing authority finds the following: (i) The ground mounted equipment will not disrupt traffic or pedestrian circulation; (ii) The ground mounted equipment will not create a safety hazard; (iii) The location of the ground mounted equipment minimizes impacts on adjacent property; and (iv) The ground mounted equipment will not adversely impact the health, safety or welfare of the community. (H) Ground mounted equipment associated with the wireless telecommunication facility shall meet the following performance standards: (i) Be set back a minimum of ten feet from the planned widened rights-of-way; (ii) Be separated from a sidewalk by a minimum of three feet; (iii) Be set back a minimum of 50 feet from the nearest intersecting right-of-way line; (iv) Be separated from the nearest ground mounted wireless telecommunication equipment installation on the same block face by a minimum of 330 feet unless the equipment is placed underground; (v) If located adjacent to residential uses, ground mounted equipment shall be limited to three feet in height above grade and 27 cubic feet in cumulative size; (vi) If located adjacent to nonresidential uses, ground mounted equipment shall be limited to five feet in height above grade and 81 cubic feet in cumulative size; (vii) Ground mounted equipment located outside the planned widened public right-of-way shall conform with the requirements of§ 19.63.05(j)of this code; and (viii) Vegetative or other screening compatible with the surrounding area shall be provided around the ground mounted equipment if deemed necessary by the Planning Manager or designee. (I) Wireless telecommunication facilities in the right-of-way shall be removed and relocated at city request subject to the provisions of this Article N. (4) New poles. The erection in the right-of-way of a new pole to support wireless telecommunication facilities is not allowed, except as a replacement of an existing public utility structure subject to the requirements of this section. (5) Charges. In addition to the permit fees outlined in Chapter 14, the city reserves the right to charge telecommunication providers for their use of the public right-of-way to the extent that such charges are allowed under state law. Telecommunication providers shall be responsible for payment of property taxes attributable to their equipment in the public right-of-way. (Ord. 98-54, passed 11-16-1998; Ord. 2001-20,passed 6-18-2001; Ord. 2006-32,passed 7-24-2006) § 17.71 PATCHING AND RESTORATION OF RIGHT-OF-WAY. § 17.72 RESERVED. § 17.73 OTHER OBLIGATIONS. § 17.74 DENIAL OF PERMIT. The Director may deny a permit based on any of the following grounds: (a) Failure to register pursuant to § 17.66 of this code; (b) The applicant is subject to revocation of a prior permit issued pursuant to this Article IV: (c) The proposed schedule for work would conflict or interfere with an exhibition, celebration, festival or any other similar event; (d) The proposed schedule conflicts with scheduled or total or partial reconstruction of the right-of-way; (e) The applicant fails to comply with the requirements of this Article IV or other provisions of this code; (f) The proposed excavation within a street or sidewalk surface has been constructed or reconstructed within the preceding five years, unless the Director determines that no other locations are feasible or that an emergency exists necessitating the excavation; (g) The Director determines that the right-of-way would become unduly congested with the installation of the proposed facilities and equipment associated therewith; (h) Adjacent or nearby business or residential uses would be unreasonably disrupted; and (i) The Director determines that denial is necessary to protect the health, safety and welfare of the public or protect the right-of-way and its current use. (Ord. 98-54, passed 11-16-1998; Ord. 2006-32, passed 7-24-2006) § 17.75 EMERGENCIES AND WORK DONE WITHOUT A PERMIT. Each registrant shall immediately notify the Director , in addition to Gopher State One- Call, of any event regarding its facilities which it considers to be an emergency. The registrant may proceed to take whatever actions are necessary to respond to the emergency. If the registrant has not been issued the required permit, within two business days after the occurrence of the emergency the registrant shall apply for the necessary permits, pay the permit fees and fulfill the remaining requirements necessary to bring itself into compliance with this Article IV for the actions it took in response to the emergency. If the Director becomes aware of an emergency regarding a registrant'sfacilities, the Director shall attempt to contact the local representative of each registrant affected, or potentially affected, by the emergency. The Directormay take whatever action deemed necessary to respond to the emergency, the cost of which shall be borne by the registrant whose facilities occasioned the emergency. Except in an emergency, any person who, without first having obtained the necessary permit, obstructs or excavates a right-of-way must subsequently obtain a permit and as a penalty pay double the normal fee for the permit and shall deposit with the Director the fees requested to correct any damage to the right-of-way and to comply with all of the requirements of this Article IV. (Ord. 98-54, passed 11-16-1998; Ord. 2006-32, passed 7-24-2006) § 17.76 INSPECTION. (a) Site inspection. The permit holder shall make the work site available to the Director and to all others authorized by law for inspection at all reasonable times during the execution of and upon completion of the work. (b) Authority of Director. (1) At the time of inspection, the Director may order the immediate cessation of any work which poses a serious threat to the life, health, safety or well-being of the public. (2) The Director may issue an order to the permit holder for any work which does not conform to the terms of the permit or other applicable standards, conditions or codes. The order shall state that failure to correct the violation within a stated deadline will be cause for revocation of the permit.If the violation is not corrected within the stated deadline,the Director may revoke the permit.If the work failure constitutes a substantial breach of the terms and conditions of state law,city code,rule or regulation or any material condition of the permit,the order shall state that failure to correct the violation and provide proof thereof within the period of time specified by theDirector will result in revocation of the permit. (Ord.98-54,passed 11-16-1998;Ord.2006-32,passed 7-24-2006) §17.77 REVOCATION OF PERMITS. (a) Substantial breach.The Director or designee may revoke a right-of-way permit, without a fee refund,if there is a substantial breach of the terms or conditions of any statute,this code,rule or regulation,or any condition of the permit.A substantial breach of a permit holder shall include,but not limited to,the following: (I) The violation of any material provision of the permit; (2) Any material misrepresentation of fact in the application for a permit; (3) The failure to maintain the required bonds or other security and insurance; (4) The failure to complete the work in a timely manner; (5) The failure to correct,in a timely manner,work that does not conform to applicable standards,conditions or codes,upon inspection and notification by the city of the faulty condition; (6) An evasion or attempt to evade any material provision of the right-of-way permit,or the perpetration or attempt to perpetrate any fraud or deceit upon the city or its citizens;and (7) The failure to comply with the terms and conditions of any applicable federal, state and local laws,rules and regulations,including any provision of this Article IV. (b) Notice of breach.If the Director or designee determines that a permit holder has committed a substantial breach of a term or condition of any statute,this code,rule or regulation or any condition of the permit,the Directorshall make a written demand upon the permit holder to remedy such violation and provide proof thereof within the period of time specified or be subject to potential revocation of the permit.The Director may impose additional or revised conditions on the permit to mitigate or remedy the breach. (c) Reimbursement of city costs.If a permit is revoked,the permit holder shall reimburse the city for its reasonable costs,including restoration costs and the costs of collection and reasonable attorney fees incurred in connection with the revocation. (Ord.98-54,passed 11-16-1998;Ord.2006-32,passed 7-24-2006) §17.78 APPEAL. (a) Filing of appeal.Any person aggrieved by:(i)the denial of a permit application; (ii)the denial of a registration;(iii)the revocation of a permit;(iv)the application of the fee schedule imposed by Chapter 14 of this code;or(v)disputes a determination of the Director regarding the method of providing accurate information about the location of service laterals installed on the property pursuant to§17.79 of this city code,may appeal to the City Council by filing a written notice of appeal with the City Clerk.Said notice must be filed within 20 days of the action causing the appeal. (b) Notice of hearing. The City Council shall hear the appeal at its next regularly scheduled meeting,unless the time is extended by agreement of the parties. Notice of the date, time, place and purpose of the hearing shall be mailed to the appellant. (c) Hearing and decision. The City Council shall, at the hearing, consider any evidence offered by the appellant, the Director and any other person wishing to be heard. The Council shall issue a written decision within 30 days of the completion of the hearing supported by written findings. (Ord. 98-54,passed 11-16-1998; Ord. 2006-32,passed 7-24-2006) § 17.79 MAPPING DATA. ail.*3 City of Bloomington Pole Attachment Application/Permit CITY OF BLOOMINGTON MINNESOTA APPLICANT APPLICANT PHONE(DIRECT) APPLICANT FAX APPLICANT EMAIL COMPANY NAME COMPANY PHONE COMPANY FAX BILLING ADDRESS CITY STATE ZIP GOPHER STATE ONE-CALL REGISTRATION NUMBER EMERGENCY CONTACT NUMBER LOCATION LIMITS (describe specific sites on page two,up to 15 sites/permit) DESCRIPTION OF WORK CONSTRUCTION START DAYS OF CONSTRUCTION , COMPLETION DATE ACKNOWLEDGMENT By signing this application. I(the applicant/company)hereby acknowledge that I must adhere to all provisions of City of Bloomington Ordinance Sec 17.70 and any other applicable ordinances,including statute 237.162 and 237.163, in addition to the terms and conditions which are attached to this document. The applicant shall also comply with the regulations of all other governmental agencies for the protection of the public. SIGNATURE: DATE: TITLE: REQUIRED DOCUMENTS TO APPLY: • Permit Fee ❑ Structural study ❑ (1)set of construction plans signed ❑ Radio frequency study by a P.E.and(1)electronic copy ❑ Performance bond on file and proof ❑ Copy of permit from pole owner if owned by an agency other than of insurance the City of Bloomington (if applicable) ❑ Design plan/route for backhaul, signed by P.E. FOR OFFICE USE ONLY PERMIT FEE REC'D: I I CHECKS ONLY APP REC'D: PERMIT NUMBER: AMOUNT: SIGNATURE: PERMIT ISSUE DATE: TITLE: APPROVED I DENIED POLE ATTACHMENT PERMIT NOT VALID UNLESS SIGNED BY CITY OF BLOOMINGTON ENGINEERING STAFF SITE SUMMARY By statute,applicant may collocate up to 15 small wireless facilities if they are within a two mile radius, consist of substantially similar equipment,and are to be placed on similar types of wireless support structures. PERMIT FEE SITE DESCRIPTION ($1,5001UNIT) 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 TOTAL PERMIT FEE DUE FOR LOCATION $ POLE PERMIT TERMS AND CONDITIONS I. INSTALLATION OF EQUIPMENT A. Permits 1. Pole Permit: Prior to the approval of installation of equipment,APPLICANT shall submit to the City Engineer or designee,a sketch of the proposed location for the new equipment("Equipment Plan"). If upon preliminary review, the proposed location and Equipment Plan is deemed acceptable by the City Engineer or designee,the APPLICANT may make a Pole Permit Application. 2. The Pole Permit Application shall include the following: 1. Completed permit application and fee. 2. Performance bond on file and proof of insurance 3. Construction plans as described in paragraph B below 4. Structural study described in paragraph B below 5. Design plan and/or route for backhaul facilities,signed by a P.E. 6. Copy of permit from pole owner if owned by an agency other than the City of Bloomington (if applicable) 3. APPLICANT must obtain a radio frequency interference study carried out by an independent professional radio frequency engineer("RE Engineer")showing that APPLICANT's intended use will not interfere with any existing, licensed communications facilities,as well as CITY's licensed and unlicensed communications facilities,which are located on or near the structure. The RF Engineer shall provide said evaluation no later than forty-five(45)days after frequencies are provided by CITY. APPLICANT shall not transit or receive radio waves at the Premises until such evaluation has been satisfactorily completed. Upon Request of CITY,APPLICANT shall hire an RF Engineer to conduct a radiation survey of the Premises following APPLICANT's initial RF transmissions. APPLICANT shall be responsible for all costs of such survey. APPLICANT shall implement all measures at the transmission site required by FCC regulations,including but not limited to posting signs and markings. CITY shall cooperate with APPLICANT to fulfill its Radio Frequency exposure obligations. CITY agrees that in the event any future party causes the entire site to exceed FCC Radio Frequency radiation limits,as measured on the Premises,CITY shall hold such future party liable for all such later-arising non- compliance. 4. Other City Permits: In addition to the Pole permit,which is only approved to attach equipment to a Pole,the APPLICANT must apply for any additional permits for all appurtenant equipment or facilities required for the Pole Application. Said permits may include,but not necessarily by limited to: Right-of-Way obstruction/excavation; Electrical, Stormwater,etc. 5. Other Applicable Permits: It is the APPLICANT's responsibility to determine if permits are required by governmental agencies and apply for those permits. 6. Applicable fees for all permits shall be borne by the APPLICANT and the APPLICANT shall be bound by the requirements of said permits. B. Construction Plans For Small Wireless Facilities Pole Permit application,or additions thereto,APPLICANT shall provide CITY's City Engineer or designee as set forth in Section I.a.,each with two(2)sets of construction plans("Construction Plans") consisting of the following: 1. CAD drawings showing the location and materials of all planned installations,including field verified existing utilities; 2. Structural Study as described in Section A.2 above; 3. Construction Specifications and Product Specifications for all planned installations; 4. Diagrams and Shop Drawings of proposed Antenna Facilities; 5. A complete and detailed inventory of all equipment and person property of APPLICANT actually placed on the Premises. CITY retains the right to survey the installed equipment. Construction Plans shall be easily readable and subject to prior written approval by the Construction Engineer,which shall not be withheld,conditioned or delayed without cause. No construction shall commence until permit is granted by the City Engineer or designee. Final Plans shall have affixed to them the signature of the APPLICANT's Engineer who shall be licensed in Minnesota pursuant Minnesota Rule 1800.4200 and Minnesota Statutes Chapter 326. C. Construction Inspection All construction activity shall be subject to inspection and approval by the CITY's representative(s). Inspection will be performed at project completion APPLICANT shall be solely responsible for all costs,in excess of those included in the permit fee,associated with said inspection and approval of construction work by CITY. D. Exposed Antenna Facilities All Antenna Facilities affixed to the Pole in the Right of Way which have exterior exposure,APPLICANT shall match the color of the pole. For exposed cables,wires,or appurtenances,the CITY shall require that cables,wires or appurtenances be placed in conduit which shall match the color of the pole. E. Damage by APPLICANT Any damage to the right of way,or CITY's equipment thereon caused by APPLICANT's permitted installation or operations shall be repaired or replaced at APPLICANT's expense and to CITY's reasonable satisfaction. F. As-Built Drawings("As-Built"or"As-Builts") Within thirty(30)days after APPLICANT activates the Antenna Facilities,APPLICANT shall provide CITY with an As- Built drawing in CAD format consisting of As-Built drawings of the Antenna Facilities installed on each permitted location and any improvements installed on the Premises,which shall show the actual location of all equipment and improvements. Said drawings shall be accompanied by a complete inventory of all equipment and Antenna Facilities. II. MAINTENANCE AND REPAIR OF EQUIPMENT A. City owned Wireless Support Structure and ROW Maintenance CITY reserves the right to take any action it deems necessary,in its sole and reasonable discretion,to repair,maintain, alter,or improve the right of way in connection with CITY's Operations. The CITY retains the right to shut off power for the Antenna Facilities at the source in any and all cases of emergency. B. Wireless Support Structure Reconditioning and Repair 1. From time to time, CITY paints,reconditions,or otherwise improves or repairs the wireless support structure in a substantial way("Reconditioning Work"). APPLICANT shall cooperate with CITY to carry out Reconditioning Work activities in a manner that minimizes interference with APPLICANT's Approved Use. 2. Except in cases of emergency,prior to commencing Reconditioning Work, CITY shall provide APPLICANT with not less than thirty(30)days prior written notice thereof. Upon receiving such notice,it shall be the sole responsibility of APPLICANT to provide adequate measures to cover or otherwise protect APPLICANT's Antenna Facilities from the consequences of such activities,including but not limited to paint and debris fallout. CITY reserves the right to require APPLICANT to remove all Antenna Facilities from the Structure and right of way during Reconditioning work. 3. During CITY's Reconditioning Work,APPLICANT may request a mobile site on the right of way. If site will not accommodate mobile equipment, it shall be APPLICANT's responsibility to locate auxiliary sites. C. Relocation of Utility Pole or Wireless Support Structure When directed by the City a right-of-way user shall relocate all of its facilities within the rights-of-way per city code section 17.81.01 RELOCATION OF FACILITIES. 17.81.01 RELOCATION OF FACILITIES. (a) Rule. When directed by the city,a right-of-way user shall promptly and at his,her or its own expense, with due regard for seasonal working conditions,permanently remove and relocate its facilities in the right-of-way when it is necessary to prevent interference,and not merely for the convenience of the city,in connection with:(1)a present or future city use of the right-of-way for a public project;(2)the public health or safety;or(3)the safety and convenience of travel over the right-of-way. The registrant shall restore any rights-of-way to the condition it was in prior to removal and relocation.Placement,location and relocation of facilities must comply with the Act, with other applicable law,and with Minnesota Rules 7819.3100, 7819.5000 and 7819.5100,to the extent the rules do not limit authority otherwise available to cities. (b) Relocation schedule notification procedure. The Director shall notify the registrant or permit holder at least three months in advance of the need to relocate existing facilities. The Director shall provide a second notification to the registrant or permit holder one month before the date by which the relocation must be completed. To the extent technically feasible, all utilities must be relocated within one month or in a time frame determined by the Director. (c) Delay to city project. if the owner fails to meet the relocation schedule due to circumstances within the utility's control,the city may charge the utility owner for all costs incurred by the city because the relocation is not completed in the scheduled timeframe. (d) Joint trenching.All facilities shall be placed in appropriate portions of right-of-way so as to cause minimum conflict with other underground facilities. When technically appropriate and no safety hazards are created,all utilities shall be installed,constructed or placed within the same trench.Notwithstanding the foregoing,gas and electric lines shall be placed in conformance with Minnesota Rules part 7819.5100,subd.2,governing safety standards. (e) Corridors. The city may assign a specific area within the right-of-way,or any particular segment thereof as may be necessary, for each type of facilities that are or,pursuant to current technology,the city expects will be located within the right-of-way.All excavation, obstruction or other permits issued by the city involving the installation or replacement of facilities shall designate the proper corridor for the facilities at issue.A typical crossing section of the location for utilities may be on file at the Director's office. This section is not intended to establish"high density corridors." Any registrant who has facilities in the right-of-way in a position at variance with the corridors established by the city may remain at that location until the city requires facilities relocation to the corridor pursuant to relocation authority granted under Minnesota Rules part 7819.3100 or other applicable law. (I) Limitation of space. To protect the public health,safety and welfare or when necessary to protect the right-of- way and its current use, the city shall have the power to prohibit or limit the placement of new or additional facilities within the right-of-way. in making such decisions,the city 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 facilities 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. (Ord.2006-32,passed 7-24-2006) III. CONDITION OF WIRELESS SUPPORT STRUCTURE The CITY will keep and maintain the the wireless support structures in good repair as required for their Primary Use and in the ordinary course of business as its budget permits. CITY makes no guarantee as to the condition of any wireless support structures with regard to APPLICANT's intended use. APPLICANT shall,at its own cost and expense,maintain the Antenna Facilities in good and safe condition,and in compliance with applicable fire,health,building,and other life safety codes. The APPLICANT shall obtain from the CITY any and all permits required for the purposes of maintaining the installation. Applicable fees for any permits shall be borne by the APPLICANT and the APPLICANT shall be bound by the requirements of said permits. IV. INDEMNIFICATION APPLICANT shall,to the extent permitted by law,indemnify and hold CITY harmless against any claim of liability or loss from personal injury or property damage resulting from or arising out of the negligence or willful misconduct of the APPLICANT,its employees,contractors or agents,except to the extent such claims or damages may be due to or caused by the negligence or willful misconduct of the CITY,or its employees,contractors or agents. V. INSURANCE A. Worker's Compensation: The APPLICANT must maintain Workers' Compensation insurance in compliance with all applicable statutes. The policy shall also provide Employer's Liability coverage with limits of not less than$500,000 Bodily Injury by disease,each employee. B. General Liability:The APPLICANT must maintain occurrence form commercial general liability coverage. 1. Such coverage shall include,but not be limited to,bodily injury,property damage—broad form,and personal injury, for the hazards of Premises/Operation,broad form contractual liability,property damage liability,and independent contractors. 2. The APPLICANT must maintain aforementioned commercial general liability coverage with limits of liability not less than$1,500,000 for each occurrence;$3,000,000 minimum general aggregate and$2,000,000 products and completed operations aggregate. These limits may be satisfied by the commercial general liability coverages. 3. APPLICANT will maintain Completed Operations coverage for a minimum of two(2)years after the construction is completed. C. Automobile Liability: The APPLICANT must carry Automobile Liability coverage. Coverage shall afford total liability limits for Bodily Injury Liability and Property Damage Liability in the amount of$1,500,000 per accident. The liability limits may be afforded under the Commercial Policy,or in combination with an Umbrella or Excess Liability Policy provided coverage of rides afforded by the Umbrella Excess Policy are not less than the underlying Commercial Auto Liability coverage. 1. Coverage shall be provided by Bodily Injury and Property Damage for the ownership,use,maintenance or operation of all owned,non-owned and hired automobiles. 2. The Commercial Automobile Policy shall include at least statutory personal injury protection,uninsured motorists and underinsured motorists coverages. D. APPLICANT Property Insurance: The APPLICANT must keep in force for the duration of the Permit a policy covering damages to its property in the right of way. The amount of coverage shall be sufficient to replace the damaged property,loss of use and comply with any ordinance or law requirements. E. Adjustment to Insurance Coverage Limits: The APPLICANT's coverage limits set forth herein shall be increased at the time of any Renewal Term by twenty-five percent(25%)over the preceding term or Renewal Term.Alternatively, instead of such periodic coverage limit increases,during the entire term of this Agreement,APPLICANT may maintain an umbrella or excess liability insurance policy with a combined single limit of$5,000,000.00 per occurrence,and CITY will be named as an additional insured under such policy. F. Additional Insured—Certificate of Insurance: The APPLICANT shall provide,prior to tenancy,evidence of the required insurance in the form of a Certificate of Insurance issued by a company(rated B+(VIII)or better), licensed to do business in the State of Minnesota,which includes all coverage required in this Section 13. APPLICANT will list the CITY as an Additional Insured on the General Liability and Commercial Automobile Liability Policies. The Certificate(s)shall also provide the coverage may not be cancelled,non-renewed,or materially changed without thirty(30)days prior written notice to the CITY. G. Defense and Indemnification: APPLICANT agree to defend,indemnify,and hold harmless CITY and its elected officials,directors,officers,employees,agents,and representatives,from and against any and all claims,costs, losses,expenses,demands, actions,or causes of action,including reasonable attorneys'fees and other costs and expenses of litigation,which may be asserted against or incurred by CITY or for which CITY may be liable in the performance of this Agreement,except those which arise solely from negligence or willful misconduct of CITY,its elected officials,directors,officers,employees,agents,representatives or contractors. APPLICANT shall defend,indemnify,and hold CITY,its agents,employees and officials harmless against all claims arising out of APPLICANT's use of the right of way,including its installation,operation,use,maintenance,repair, removal,or presence of APPLICANT's facilities,structures,equipment or other types of improvements,induding Antenna Facilities,in the right of way except to the extent arising from or related to the sole negligence or willful misconduct of CITY,its elected officials,officers,employees,agents,and representatives. VI. LIMITATION OF LIABILITY CITY shall not be liable to the APPLICANT,or any of its respective agents,representatives,employees for any lost revenue,lost profits,loss of technology,rights or services,incidental,punitive,indirect,special or consequential damages,loss of data,or interruption or loss of use of service,even if advised of the possibility of such damages, whether under theory of contract,tort(including negligence),strict liability or otherwise. VII. INTERFERENCE APPLICANT agrees to install equipment of the type and frequency which will not cause harmful interference which is measurable in accordance with then existing industry standards to any equipment of CITY or other APPLICANTs of the Premises which existed on the Premises prior to the data this Agreement is executed by the Parties. In the event any after-installed APPLICANT's equipment causes such interference,and after CITY has notified APPLICANT in writing of such interference,APPLICANT will take all steps necessary to correct and eliminate the interference,including but not limited to,at CITY's option,having the APPLICANT power down its equipment and later power up its equipment for intermittent testing. VIII. REMOVAL AT END OF TERM OR UPON PERMIT REVOCATION APPLICANT shall,within ninety(90)days after any termination of this Permit,remove its equipment,conduits, fixtures and all personal property and restore the Premises to its original condition,reasonable wear and tear expected. CITY agrees and acknowledges that all of the equipment,conduits,fixtures and personal property of APPLICANT shall remain the personal property of APPLICANT and APPLICANT shall have the right to remove the same at any time during the Term.All poles,conduit and pole boxes are and shall remain property of the CITY. If such time for removal causes APPLICANT to remain on the Premises after termination,APPLICANT shall pay rent at the then existing monthly rate or on the existing monthly pro-rata basis until such time as the removal of the antenna structure,fixtures and all personal property are completed.All rentals paid prior to said termination date shall be retained by CITY. IX. CASUALTY In the event of damage or casualty to the wireless support structure that cannot reasonably be expected to be repaired or replaced due to winter frost conditions,or if the Pole is damaged so that such damage may reasonably be expected to disrupt APPLICANT's operations for more than 120 days,then APPLICANT may,provided CITY has not completed the restoration or replacement of the pole terminate the Permit upon fifteen(15)days prior written notice to CITY.