5.8 PCSR 11-22-2016 h1 ,�.., Request for Action
River
To Item Number
Planning Commission 5.8
Agenda Section Meeting Date Prepared by
Public Hearings November 22,2016 BrieAnna Simon,Planner
Item Description Reviewed by
City of Elk River—Ordinance Amendment Zack Carlton,Planning Manager
• Ordinance Amendment to regulate structures Reviewed by
located in the right-of-way, Case No. OA 16-12
Action Requested
Recommend,by motion,approval of the Ordinance Amendment as proposed.
Background/Discussion
Early March of 2016, the city received an application to locate a 120'wireless telecommunication pole
with a 40'base within the right-of-way off of 179`"Avenue NW. Since the city code does not codify a
non-utility facility locating in the right-of-way, a moratorium was passed in March of 2016 in order to
allow the city time to study the implications of permitting structures within the right-of-way. Minnesota
law provides cities with the comprehensive authority to manage their right-of-ways.
In order to regulate the right-of-ways located in Elk River, a number of approaches can be taken. These
include a zoning ordinance,right-of-way management ordinance,or a telecommunication ordinance.
Each of these provides the city with an opportunity to regulate location, design, height,lighting, setbacks,
finish,review process,proof of federal compliance,and/or master license agreement.
However,the City of Elk River's municipal utility department currently allows wireless
telecommunications to locate on exciting facilities located in the right-of-way or within easements.
Telecommunications are able to lease space on existing faculties by signing a"Pole Attachment
Agreement" that requires a commitment to ensure the safety of the community and a small fee.
Therefore after reviewing similar ordinance in other cities and existing Elk River policies, staff is looking
to regulate telecommunication facilities by only allowing two options:
1) Allow wireless telecommunication facilities to locate on existing facilities with complete approval
from the Elk River Municipal Utilities Commission.
2) Allow wireless telecommunication facilities to locate underground with one switchboard cabinet
not to exceed 30 inches in height.
Codifying these two options will unify existing policies among departments, ensure structures do not
exceed existing height requirements and help protect the safety and welfare of the community. Does the
Planning Commission have any hesitations with these two options?Would the Planning Commission like
to see the ordinance be more or less restrictive?
F' UIERED er
NATURE
Financial Impact
None
Council Meeting
If acted on, this item will go to the December 19, 2016, City Council meeting.
Attachments
• Elk River Municipal Utilities Pole Attachment Agreement
N:\Departments\Community Development\Planning\Case Files\OA\OA 16-12 Structures in ROW\4-Planning Commission\OA 16-12 sr PC 11-
22-16.docx
ELK RIVER MUNICIPAL UTILITIES
POLE ATTACHMENT AGREEMENT
This agreement("Agreement") is made this day of , , by and
between ELK RIVER MUNICIPAL UTILITIES("Owner")and ("Licensee").
1. Grant of License. Owner grants to Licensee, upon the terms and subject to the conditions set
forth herein,the right to attach Licensee's communication line, including wires and
appurtenances thereto ("Communication Equipment")to those poles of the Owner located
within the Owner's service territory within the City of Elk River,the City of Otsego,the City of
Dayton, and Big Lake Township; identified in Exhibit A attached hereto and incorporated herein.
2. License Fees.
a. Licensee agrees to pay to Owner an Annual License Fee ("Annual License Fee")for each
pole upon which the Licensee's Communication Equipment is attached.
b. The Annual License Fee shall be in the amount of the pole attachment rate set by Owner
from time to time. The current pole attachment rate is set forth in Exhibit B attached
hereto and incorporated herein.
c. The Annual License Fee shall be paid on or before January 31St of each year for so long
as this Agreement remains in effect. There shall be no proration for any period of time
of less than on year.
d. As an additional license fee, Licensee shall reimburse Owner for all expenses incurred by
Owner in making necessary alterations or additions to its poles for the purpose of
accommodating Licensee's Communication Equipment, including costs allocated to
Licensee by Owner pursuant to Paragraph 6 hereof.
3. Maintenance of Communication Equipment. Licensee will be responsible for maintenance of
the Communication Equipment and will have the right to access the Communication Equipment
for maintenance purposes. However, Licensee must give Owner written notification before
commencing any maintenance activities. Licensee will maintain its Communication Equipment
at no cost to Owner. It is specifically contemplated and understood by the parties that Owner
will not incur any financial responsibility relative to the Licensee's use of the poles during the
term of this Agreement. Any and all costs incurred by Owner related to Licensee's
Communication Equipment will be reimbursed by Licensee.
Page 1 of 5
4. Design Standards. The construction, reconstruction and planning of the Licensee's
Communication Equipment shall at all times be in conformity with the National Electric Safety
Code, as amended and all applicable Federal, State,and Local regulations and requirements. All
plans for the construction and maintenance of Licensee's Communication Equipment shall be
prepared by a qualified and certified engineer and submitted to Owner for review and approval
prior to the commencement of any work.
5. Right of Way for Licensee's Attachments. Owner does not, in any manner,warrant or covenant
with the Licensee regarding the validity of any easements,franchise or other authorizations
whereby the Owner's poles and electric system were erected, nor does Owner in any manner
warrant or covenant with Licensee regarding the validity of any rights hereby given with respect
to easements, franchises and maintenance of Licensee's Communication Equipment.
6. Division of Costs.
a. The cost of erecting new poles covered by this Agreement,to construct new pole lines,
to make extensions to existing pole lines or to replace existing poles,shall be borne by
the parties as follows:
i. The cost in place of a normal pole or pole smaller than normal shall be borne by
Owner. Owner shall have sole discretion to determine,from time to time,the
specifications for a normal pole.
ii. In the case of a pole larger than normal,where all or part of the extra height or
strength is necessary because of the requirements of Licensee, including
requirements for keeping Licensee's communication equipment clear of trees or
to meet required clearances,the extra cost in place of such a pole shall be borne
by Licensee.
iii. In the case of a pole larger than normal where all or part of the extra height or
strength is necessary because of requirements of Owner, including
requirements for keeping Owner's wire or electric distribution equipment clear
of trees or to meet required clearances,the extra cost in place of such a pole
due to Owner's requirements shall be borne by Owner.
iv. In the case of a pole larger than normal where all or part of the extra height or
strength is necessary because of the requirements of both parties,or the
requirements of public authorities or property owners (other than requirements
with regard to keeping the equipment of one party only clear of trees or to keep
the required clearance for that one party), Licensee shall pay the Owner a sum
equal to one-half the difference between the cost in place of such pole and the
Page 2 of 5
cost in place of a normal pole,the rest of the cost of erecting such pole to be
borne by Owner.
v. Owner shall have sole discretion to determine the amounts and allocation of
costs for larger than normal poles under this Section 6a.
b. Any payments for poles made by Licensee under any provisions of this paragraph 6 shall
be a license fee only and shall not entitle Licensee to ownership of any part of said poles
for which it has contributed in whole or in part.
c. Where an existing pole is prematurely replaced by a new one solely for the benefit of
Licensee, the cost in place of the new pole shall be paid by Licensee, and Licensee shall
also pay the value of the replaced pole, plus the cost of removal less the salvage value of
such pole. The replaced pole shall be removed and retained by Owner. Owner shall
have sole discretion to determine whether replacement of a pole is necessary and is
being done for the benefit of Licensee.
d. Owner shall have exclusive discretion to determine,from time to time,what is a normal
pole,to determine when a normal pole needs to be replaced or upgraded, and to
determine the costs and the allocation of costs to install, replace or upgrade a normal
pole.
7. Installation of Communications Equipment.
a. Prior to the installation of any Communications Equipment on Owner's poles, Licensee
shall submit detailed plans to Owner for the installation of the Communications
Equipment, including such information and plans as Owner shall require,so Owner can
determine the feasibility of the proposed installation and determine any costs to be
incurred pursuant to Paragraph 6 hereof.
b. Upon completion of Owners review of Licensee's plans,Owner shall advise Licensee, in
writing, if the plans have been approved and, if so, any alterations to the plans required
by Owner and Owners determination of costs for the installation to be allocated to
Licensee.
c. Prior to the commencement of any work on the installation of the Communication
Equipment by Licensee:
i. Licensee shall pay to Owner an amount equal to Owner's estimate of the costs
of the installation to be allocated to Owner under Paragraph 6 hereof.
Page 3 of 5
ii. Licensee shall deposit with Owner such amount as Owner shall determine, in its
sole discretion, as necessary to secure Owner for any damage to Owner's poles
or other equipment caused by the installation and not corrected by Licensee.
d. Following the approval of plans and the payment of amounts due, Licensee may
proceed with installation of the Communications Equipment on such terms and
schedule as Owner shall approve in a written approval to proceed.
e. All Communication Equipment shall be installed to the satisfaction of ERMU, in its sole
discretion. Licensee shall make any corrections, repairs or replacements to the
Communications Equipment required by Owner and shall not put the Communications
Equipment into service until Owner has issued its written approval of the installation.
Licensee shall also be responsible for the repair of any damage to Owner's poles or
equipment occurring during the installation.
f. Following approval by Owner of the installation of the Communication Equipment,
Owner shall calculate the actual costs of the installation to be allocated to Licensee. If
the costs allocated to Licensee are less than the amount pre-paid by Licensee,Owner
shall refund Licensee any amounts due within 30 days. If the costs allocated to Licensee
are more than the amount pre-paid by Licensee, Licensee shall pay all additional
amounts due within 30 days of notice from Owner of those amounts.
g. Owner shall also return to Licensee any amount of the deposit submitted by Licensee
not required by Owner to repair poles or equipment damaged during the installation.
8. Termination of Use. If Owner desires at any time to abandon any pole, it shall give Licensee
notice in writing to that effect at least ninety(90) days prior to the date on which Owner intends
to discontinue use of the pole. Licensee shall thereupon remove its Communication Equipment
from the pole no later than ten (10)days before expiration of the notice period. Licensee may
at any time discontinue the use of any pole by removing any and all attachments it may have
thereon. If Owner determines, in its sole discretion,that the abandoned pole may stay in place,
Owner and Licensee may, if they both desire to, enter into negotiations for sale of the
abandoned pole to Licensee and the terms of a License Agreement for Licensee's use of the
right of way or property where the pole is located. The Owner of the right of way or property
where the pole is located shall be a party to any such agreement.
9. Covenant to Hold Harmless. Licensee agrees to hold harmless and defend Owner against any
liability for damages, including reasonable attorney's fees and costs,to any person or property
related to Licensees installation,operation and/or maintenance of Communications Equipment
on Owner's poles. Owner shall not be liable to Licensee, its agents,employees or
representatives, nor to any other person for any personal injury, death or damage to property,
Page 4 of 5
.
or for any other cause occurring on or about the Owner's poles related to Licensees installation,
operation and/or maintenance of Communications Equipment on the poles.
10. Existing Rights of Other Parties. Owner has, prior to the execution of this Agreement, conferred
upon others, not parties to this Agreement, by contract or otherwise,the rights or privileges to
use some or all of Owner's poles covered by this Agreement. Nothing herein shall be construed
as affecting said rights or privileges, and Owner shall have the right, by contract or otherwise,to
continue and to extend such existing rights or privileges. It is expressly understood, however,
that for the purpose of this Agreement,the attachments of any other party shall be treated as
attachments belonging to the Owner, and the rights,obligations and liability hereunder of the
Owner with respect to such attachments shall be the same as if Owner were the actual owner of
those attachments.
11. Assignment. This Agreement shall not be assignable by Licensee.
12. Benefited Parties. This Agreement shall inure to the benefit of the parties hereto. Nothing
contained in this Agreement or the relationship created thereby shall be deemed to benefit
third parties,or to establish a precedent in the relationship between Owner and any other
party.
Elk River Municipal Utilities [Licensee]
By: By:
Its: Its:
Dated: Dated:
GP:2999592 v2
Page 5 of 5
Exhibit B
Elk River -�--
Municip al Utilities
8.lOc POLE ATTACHMENT POLICY
1.0 Fees
The rental rate for pole attachments shall be $6.50.
Adopted March 11, 1997
1