City Council Ordinance 682ORDINANCE 682
CITY OF MONTICELLO, WRIGHT COUNTY, MINNESOTA
AN ORDINANCE TO ENACT A NEW CHAPTER OF THE CODE OF
ORDINANCES, TITLE 8, CHAPTER 11 — RIGHT-OF-WAY ORDINANCE — TO
ADMINISTER AND REGULATE THE PUBLIC RIGHTS-OF-WAY IN THE
PUBLIC INTEREST, AND TO PROVIDE FOR THE ISSUANCE AND
REGULATION OF RIGHT-OF-WAY PERMITS.
THE CITY COUNCIL OF THE CITY OF MONTICELLO, WRIGHT COUNTY
MINNESOTA ORDAINS:
SECTION:
8-11-1:
Findings, Purpose and Intent
8-11-2:
Election to Manage the Right -of -Way
8-11-3:
Definitions
8-11-4:
Administration
8-11-5:
Registration and Right -of -Way Occupancy
8-11-6:
Registration Information
8-11-7:
Reporting Obligations
8-11-8:
Permit Requirement
8-11-9:
Permit Applications
8-11-10:
Issuance of Permit; Conditions
8-11-11:
Right -of -Way Permit Fees
8-11-12:
Right -of -Way Patching and Restoration
8-11-13:
Joint Applications
8-11-14:
Supplementary Applications
8-11-15:
Other Obligations
8-11-16:
Denial of Pen -nit
8-11-17:
Installation Requirements
8-11-18:
Inspection
8-11-19:
Work Done Without a Permit
8-11-20:
Supplementary Notification
8-11-21:
Revocation of Pen -nits
8-11-22:
Mapping Date
8-11-23:
Location and Relocation of Facilities
8-11-24:
Pre -Excavation Facilities Location
8-11-25:
Damage to Other Facilities
8-11-26:
Right -of -Way Vacation
8-11-27:
Indemnification and Liability
8-11-28:
Abandoned and Unusable Facilities
8-11-29:
Appeal
8-11-30:
Reservation of Regulatory and Police Powers
8-I1-31: Severability
8-11-1: FINDINGS, PURPOSE AND INTENT:
To provide for the health, safety and welfare of its citizens, and to ensure
the integrity of its streets and the appropriate use of the rights-of-way, the
city strives to keep its rights-of-way in a state of good repair and free from
unnecessary encumbrances.
Accordingly, the City of Monticello hereby enacts this new chapter of this
code relating to right-of-way permits and administration. This chapter imposes
reasonable regulation on the placement and maintenance of facilities and
equipment currently within its rights-of-way or to be placed therein at some
future time. It is intended to complement the regulatory roles of state and
federal agencies. Under this chapter, persons excavating and obstructing the
rights-of-way will bear financial responsibility for their work. Finally, this
chapter provides for recovery of out-of-pocket and projected costs from
persons using the public rights-of-way.
This chapter shall be interpreted consistently with 1997 Session Laws,
Chapter 123, substantially codified in Minnesota Statutes Sections 237.16,
237.162, 237.163, 237.79, 237.81, and 238.086 (the "Act") and the other laws
governing applicable rights of the city and users of the right-of-way. This
chapter shall also be interpreted consistent with Minnesota Rules 7819.0050
—7819.9950 and Minnesota Rules Chapter 7560 where possible. To the
extent any provision of this chapter cannot be interpreted consistently with
the Minnesota Rules, that interpretation most consistent with the Act and
other applicable statutory and case law is intended. This chapter shall not be
interpreted to limit the regulatory and police powers of the city to adopt and
enforce general ordinances necessary to protect the health, safety and welfare
of the public.
8-11-2: ELECTION TO MANAGE THE PUBLIC RIGHTS-OF-WAY. Pursuant to
the authority granted to the city under state and federal statutory,
administrative and common law, the city hereby elects, pursuant Minn. Stat.
237.163 subd. 2(b), to manage rights-of-way within its jurisdiction.
8-11-3: DEFINITIONS. The following definitions apply in this chapter of this code.
References hereafter to "sections" are, unless otherwise specified, references
to sections in this chapter. Defined terms remain defined ten -ns, whether or not
capitalized.
Abandoned Facility. 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. A facility is not abandoned unless
declared so by the right-of-way user, or by the City. A facility is considered
abandoned after 12 months of non-use.
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Applicant. Any person requesting permission to excavate or obstruct a
right-of-way.
City. The city of Monticello, Minnesota. For purposes of section 1.28, city
also means the City's elected officials, officers, employees and agents.
Collocate. "Collocate" or "collocation" 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.
Commission. The State 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 Minnesota Statutes, section 216D.04
subdivision 3, over a continuous length in excess of 500 feet.
Construction Performance Bond. Any of the following forms of security
provided at pennittee's option:
• Individual project bond;
• Cash deposit;
• Security of a form listed or approved under Minn. Stat. Sec. 15.73,
subd. 3;
• Letter of Credit, in a fonn acceptable to the city;
• Self-insurance, in a form acceptable to the city;
• 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.
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 detennined by the city at the time the permit
is issued, not to exceed the maximum restoration shown in plates 1 to 13, set
forth in Minnesota Rules parts 7819.9900 to 7819.9950.
Degradation Fee. The estimated 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.
Department. The department of public works and engineering of the City
of Monticello.
Department Inspector. Any person authorized by the city to carry out
inspections related to the provisions of this chapter.
Director. The director of the department of public works of the city, or her or
his designee.
Delay Penalty. The penalty imposed as a result of unreasonable delays in
right-of-way excavation, obstruction, patching, or restoration as established by
permit.
Emergency. A condition that (1) poses a danger to life or health, or of a
significant loss of property; or (2) requires immediate repair or
replacement of facilities in order to restore service 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.
Excavation permit. The permit which, pursuant to this chapter, must be
obtained before a person may excavate in a right-of-way. An Excavation
permit allows the holder to excavate that part of the right-of-way described
in such permit.
Excavation permit fee. Money paid to the city by an applicant to cover the
costs as provided in Section 1.12.
Facility or Facilities. Any tangible asset in the right-of-way required to
provide Utility Service.
Five-year project plan. Shows projects adopted by the city for construction
within the next five years.
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 pavement, with the excavation having a length
less than the width of the pavement.
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Local Representative. A local person or persons, or designee of such person
or persons, authorized by a registrant to accept service and to make decisions
for that registrant regarding all matters within the scope of this chapter.
Management costs or rights-of-way management costs.
(a) "Management costs" or "rights-of-way management costs" means the
actual costs a local government unit incurs in managing its public rights-
of-way, and includes such costs, if incurred, as those associated with
registering applicants; issuing, processing, and verifying right-of-way or
small wireless facility 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 the opportunity to correct the work; and revoking
right-of-way or small wireless facility permits.
(b) (b) Management costs do not include:
(1) Payment by a telecommunications right-of-way user for the use of
the public right-of-way;
(2) unreasonable fees of a third -party contractor used by a local
government unit as part of managing its public rights-of-way,
including but not limited to any third -party contractor fee tied to or
based upon customer counts, access lines, revenue generated by the
telecommunications right-of-way user, or revenue generated for a local
government unit; or
(3) the fees and cost of litigation relating to the interpretation of this
section or section 237.163 or any ordinance enacted under those
sections, or the local unit of government's fees and costs related to
appeals taken pursuant to section 237.163, subdivision 5.
Micro wireless facility. A shall wireless facility that is no larger than 24.
inches long, 15 inches wide, and 12 inches high, and whose exterior antenna,
if any, is no longer than 11 inches.
Obstruct. To place any tangible object in a right-of-way so as to hinder free
and open passage over that or any part of the right-of-way.
Obstruction Permit. The pennit which, pursuant to this chapter, 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,
for the duration specified therein.
Obstruction Permit Fee. Money paid to the city by a permittee to cover
the costs as provided in Section 1.12
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 bituminous, concrete,
aggregate, or gravel.
Permit. Has the meaning given "right-of-way permit" in Minnesota Statutes,
section 237.162.
Permittee. Any person to whole a permit to excavate or obstruct a right-of-
way has been granted by the city under this chapter.
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.
Registrant. Any person who (1) has or seeks to have its equipment or
facilities 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 an excavated right-of-way
and surrounding area, including pavement and foundation and turf, 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 permittee
to achieve the level of restoration according to plates 1 to 13 of
Minnesota Public Utilities Commission rules.
Public Right -of -Way. The area on, below, or above a public roadway,
highway, street, cartway, bicycle lane or public sidewalk in which the city
has an interest, including other dedicated rights-of-way for travel
purposes and utility easements of the city. A right-of-way does not
include the airwaves above a right-of-way with regard to cellular or other
nonwire telecommunications or broadcast service. (Note: this definition
does not include other public grounds that may be the subject of other city
requirements.)
Right -of -Way (ROW) Permit. The excavation permit, the obstruction
permit, or the small wireless facility pennit, or all types of ROW permit
authorized by law or ordinance, depending on the context, required by this
chapter.
Right -of -Way User. (1) A telecommunications right-of-way user as
defined by Minnesota Statutes, section 237.162, subd. 4; or (2) a person
owning or controlling a facility in the right-of-way that is used or intended
to be used for providing utility service, and who has a right under law,
franchise, or ordinance to use the public right-of-way.
Service or Utility Service. Includes (1) those services provided by a public
utility as defined in Minn. Stat. 216B.02, subds. 4 and 6; (2) services of a
telecommunications right-of-way user, including transporting of voice or
data information; (3) services of a cable communications systems as defined
in Minn. Stat. Chapter. 23 8; (4) natural gas or electric energy or
telecommunications services provided by the city; (5) services provided by
a cooperative electric association organized under Minn. Stat., Chapter
308A; and (6) water, and sewer, including service laterals, steam, cooling or
heating services.
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.
Small wireless facility. "Small wireless facility" means:
(a) A wireless facility that meets both of the following qualifications:
(1) each antenna is located inside an enclosure of no more than six cubic
feet in volume or, in the case of an antenna that has exposed elements, the
antenna and all its exposed elements could fit within an enclosure of no
more than six cubic feet; and
(2) all other wireless equipment associated with the small wireless facility,
excluding electric meters, concealment elements, telecommunications
demarcation boxes, battery backup power systems, grounding equipment,
power transfer switches, cutoff switches, cable, conduit, vertical cable
runs for the connection of power and other services, and any equipment
concealed from public view within or behind an existing structure or
concealment, is in aggregate no more than 28 cubic feet in volume; or
(b) A micro wireless facility.
Supplementary Application. An application made to excavate or obstruct
more of the right-of-way than allowed in, or to extend, a pen -nit that had
already been issued.
Telecommunications right-of-way user.
(a) "Telecommunications right-of-way user" means a person owning or
controlling a facility in the public right-of-way, or seeking to own or control a
facility in the public right-of-way, that is used or is intended to be used for
providing wireless service, or transporting telecommunications or other voice
or data information.
(b) A cable communication system defined and regulated under chapter 238,
and telecommunications activities related to providing natural gas or electric
energy services, a public utility as defined in section 216B.02, a municipality,
a municipal gas or power agency organized under chapter 453 or 453A, or a
cooperative electric association organized under chapter 308A, are not
telecommunications right-of-way users for the purposes of this section and
section 237.163, except to the extent these entities are offering wireless
services.
Temporary Surface. The compaction of subbase and aggregate base and
replacement, in kind, of the existing pavement only to the edges of the
excavation. It is temporary in nature except when the replacement is of
pavement included in the city's two-year plan, in which case it is considered
full restoration.
Trench. An excavation in the pavement, with the excavation having a length
equal to or greater than the width of the pavement.
Two Year project Plan. Shows projects adopted by the city for construction
within the next two years.
Utility pole. A pole that is used in whole or in part to facilitate
telecommunications or electric service.
Wireless facility.
(a) "Wireless facility" means equipment at a fixed location that enables the
provision of wireless services between user equipment and a wireless service
network, including:
(1) Equipment associated with wireless service;
(2) A radio transceiver, antenna, coaxial or fiber-optic cable, regular and
backup power supplies, and comparable equipment, regardless of
technological configuration; and
(3) A small wireless facility.
(b) "Wireless facility" does not include:
(1) Wireless support structures;
(2) Wireline backhaul facilities; or
(3) coaxial or fiber-optic cables (I) between utility poles or wireless
support structures, or (ii) that are not otherwise immediately adjacent to or
directly associated with a specific antenna.
Wireless service. Any service using licensed or unlicensed wireless
spectrum, including the use of Wi-Fi, whether at a fixed location or by
means of a mobile device, that is provided using wireless facilities.
Wireless service does not include services regulated under Title VI of the
Communications Act of 1934, as amended, including a cable service under
United States Code, title 47, section 522, clause (6).
Wireless support structure. A new or existing structure in a public
right-of-way designed to support or capable of supporting shall wireless
facilities, as reasonably detennined by a local government unit.
Wireline backhaul facility. A facility used to transport communications
data by wire from a wireless facility to a communications network.
8-11-4: ADMINISTRATION. The director is the principal city official responsible for
the administration of the rights-of-way, right-of-way permits, and the
ordinances related thereto. The director may delegate any or all of the duties
hereunder.
8-11-5: REGISTRATION AND RIGHT-OF-WAY OCCUPANCY.
Subd. 1. Registration. Each person who occupies or uses, or seeks to occupy
or use, the right-of-way or place any equipment or facilities in or on the right-
of-way, including persons with installation and maintenance responsibilities
by lease, sublease or assignment, must register with the city. Registration will
consist of providing application information
Subd. 2. Registration Prior to Work. No person may construct, install,
repair, remove, relocate, or perform any other work on, or use any
facilities or any part thereof, in any right-of-way without first being
registered with the city.
Subd. 3. Exceptions. Nothing herein shall be construed to repeal or amend
the provisions of Title 8, Chapter 5 -Boulevard ordinance. However, nothing
herein relieves a person from complying with the provisions of the Minn.
Stat. Chap. 216D, Gopher One Call Law.
8-11-6: REGISTRATION INFORMATION.
Subd. 1. Information Required. The information provided to the city at
the time of registration shall include, but not be limited to:
(a) Each registrant's name, Gopher One -Call registration certificate number,
address and e-mail address, if applicable, and telephone and facsimile
numbers.
(b) The name, address and e-mail address, if applicable, and telephone and
facsimile numbers of a local representative. The local representative or
designee shall be available at all times. Current infonnation regarding
how to contact the local representative in an emergency shall be
provided at the time of registration.
(c) A certificate of insurance or self-insurance:
(1) Verifying that an insurance policy has been issued to the
registrant by an insurance company licensed to do business in the State
of Minnesota, or a form of self-insurance acceptable to the city;
(2) Verifying that the registrant is insured against claims for personal
injury, including death, as well as claims for property damage arising out
of the (i) use and occupancy of the right-of-way by the registrant, its
officers, agents, employees and permittees, and (ii) placement and use of
facilities and equipment in the right-of-way by the registrant, its officers,
agents, employees and permittees, including, but not limited to, protection
against liability arising from completed operations, damage of
underground facilities and collapse of property;
(3) Naming the city as an additional insured as to whom the
coverages required herein are in force and applicable and for whom
defense will be provided as to all such coverages;
(4) Requiring that the city be notified thirty (30) days in advance of
cancellation of the policy or material modification of a coverage term;
and
(5) Indicating comprehensive liability coverage, automobile liability
coverage, workers compensation and umbrella coverage established by
the city in amounts sufficient to protect the city and the public and to
carry out the purposes and policies of this chapter.
(6) The city may require a copy of the actual insurance policies.
(7) If the person is a corporation, a copy of the certificate is required to
be filed under Minn. Stat. Sec. 300.06 as recorded and certified to by the
Secretary of State.
(8) A copy of the person's order granting a certificate of authority from
the Minnesota Public Utilities Commission or other applicable state or
federal agency, where the person is lawfully required to have such
certificate from said commission or other state or federal agency.
Subd. 2. Notice of Changes. The registrant shall keep all of the information
listed above current at all times by providing to the city information as to
changes within fifteen (15) days following the date on which the registrant
has knowledge of any change.
8-11-7: REPORTING OBLIGATIONS.
Subd. 1. Operations. Each registrant shall, at the time of registration and by
December 1 of each year, file a construction and major maintenance plan for
underground facilities with the city. Such plan shall be submitted using a
format designated by the city and shall contain the information determined by
the city to be necessary to facilitate the coordination and reduction in the
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frequency of excavations and obstructions of rights-of-way.
The plan shall include, but not be limited to, the following information:
(a) The locations and the estimated beginning and ending dates of all projects
to be commenced during the next calendar year (in this section, a "next -year
project"); and
(b) To the extent known, the tentative locations and estimated beginning and
ending dates for all projects contemplated for the five years following the next
calendar year (in this section, a "five-year project").
The term "project" in this section shall include both next -year projects
and five-year projects.
By January 1 of each year, the city will have available for inspection in the
city's office a composite list of all projects of which the city has been
informed of the annual plans. All registrants are responsible for keeping
themselves informed of the current status of this list.
Thereafter, by February 1, each registrant may change any project in its
list of next -year projects, and must notify the city and all other
registrants of all such changes in said list. Notwithstanding the
foregoing, a registrant may at any time join in a next -year project of
another registrant listed by the other registrant.
Subd. 2. Additional Next -Year Projects. Notwithstanding the foregoing,
the city will not deny an application for a right-of-way permit for failure
to include a project in a plan submitted to the city if the registrant has
used commercially reasonable efforts to anticipate and plan for the
proj ect.
8-11-8: PERMIT REQUIREMENT.
Subd. 1. Permit Required. Except as otherwise provided in this code, no
person may obstruct, excavate, or place any structure in any right-of-way
without first having obtained the appropriate right-of-way permit from the
city to do so. All work completed as part of a right-of-way pen -nit shall
conform to the City of Monticello's General Specifications and Standard
Detail Plates for Street and Utility Construction, and the City of Monticello's
Design Manual.
(a) Excavation Permit. An excavation pen -nit is required by a registrant to
excavate that part of the right-of-way described in such permit and to hinder
free and open passage over the specified portion of the right-of-way by
placing facilities described therein, to the extent and for the duration
specified therein.
(b) Obstruction Permit. An obstruction permit is required by a registrant to
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hinder free and open passage over the specified portion of right-of-way by
placing equipment described therein on the right-of-way, to the extent and for
the duration specified therein. An obstruction permit is not required if a
person already possesses a valid excavation permit for the same project.
(c) Small Wireless Facility Permit. A small wireless facility permit is
required by a registrant to place a new wireless support structure or to
collocate a small wireless facility in a public right of way managed by the
City. A separate collocation agreement is required to collocate a small
wireless facility on existing City structures. A maximum of 15 small wireless
facilities may be consolidated onto one permit application, provided that all of
the facilities:
(1) Are Located within a two-mile radius;
(2) Consist of substantially similar equipment;
(3) Are to be placed on similar types of wireless support structures.
Subd. 2. Permit Extensions. No person may excavate or obstruct the right-of-
way beyond the date or dates specified in the permit unless (i) such person
makes a supplementary application for another right-of-way permit before the
expiration of the initial permit, and (ii) a new permit or permit extension is
granted.
Subd. 3. Delay Penalty. In accordance with Minnesota Rule 7819.1000 subd.
3 and notwithstanding subd. 2 of this Section, the city shall establish and
impose a delay penalty for unreasonable delays in right-of-way excavation,
obstruction, patching, or restoration. The delay penalty shall be established
from time to time by city council resolution.
Subd. 4. Permit Display. Permits issued under this chapter shall be
conspicuously displayed or otherwise available at all times at the indicated
work site and shall be available for inspection by the city.
8-11-9: PERMIT APPLICATIONS.
Application for a permit is made to the city. Right-of-way permit applications
shall contain, and will be considered complete only upon compliance with, the
requirements of the following provisions:
(a) Registration with the city pursuant to this chapter;
(b) Submission of a completed permit application form, including all required
attachments, and scaled drawings showing the location and area of the
proposed project and the location of all known existing and proposed
facilities.
(c) Payment of money due the city for:
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(1) permit fees, estimated restoration costs and other management costs;
(2) prior obstructions or excavations;
(3) any undisputed loss, damage, or expense suffered by the city because
of applicant's prior excavations or obstructions of the rights-of-way or any
emergency actions taken by the city;
(4) Franchise fees or other charges, if applicable.
(d) Payment of disputed amounts due the city by posting security or
depositing in an escrow account an amount equal to at least 110% of
the amount owing.
(e) Posting an additional or larger construction performance bond for
additional facilities when applicant requests an excavation permit to
install additional facilities and the city deems the existing construction
performance bond inadequate under applicable standards.
8-11-10: ISSUANCE OF PERMIT; CONDITIONS.
Subd. 1. Permit Issuance. If the applicant has satisfied the requirements of
this chapter, the city shall issue a permit.
Subd. 2. Conditions. The city may impose reasonable conditions upon the
issuance of the permit and the performance of the applicant thereunder to
protect the health, safety and welfare or when necessary to protect the right-
of-way and its current use. In addition, a permittee shall comply with all
requirements of local, state and federal laws, including but not limited to
Minnesota Statutes §§ 216D.01 -.09 (Gopher One Call Excavation Notice
System) and Minnesota Rules Chapter 7560.
8-11-11: RIGHT-OF-WAY PERMIT FEES.
See City Fee Schedule, in City Ordinance Title 20, Chapter 1 -Fee Schedule
Subd. 1. Excavation Permit Fee. The city shall establish an Excavation
permit fee in an amount sufficient to recover the following costs:
(a) the city management costs;
(b) Degradation costs, if applicable.
Subd. 2. Obstruction Permit Fee. The city shall establish the obstruction
permit fee and shall be in an amount sufficient to recover the city management
costs.
Subd. 3 Small Wireless Facility Permit Fees. The city shall establish the
permit fee in an amount sufficient to recover the city management costs or
collect the maximum fees authorized by law.
Subd. 4. Payment of Permit Fees. No permit shall be issued without
payment of excavation, obstruction, or small wireless facility permit fees.
The city may allow applicant to pay such fees within thirty (30) days of
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billing.
Subd. 5. Non Refundable. Permit fees that were paid for a permit that the city
has revoked for a breach as stated in Section 1.22 are not refundable.
Subd. 6. Application to Franchises. Unless otherwise agreed to in a
franchise, management costs may be charged separately from and in addition
to the franchise fees imposed on a right-of-way user in the franchise.
8-11-12: RIGHT-OF-WAY PATCHING AND RESTORATION.
Subd. 1. Timing. The work to be done under the excavation 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
permittee or when work was prohibited as unseasonal or unreasonable under
Section 1.16.
Subd. 2. Patch and Restoration. Permittee shall patch its own work. The
city may choose either to have the permittee restore the right-of-way or to
restore the right-of-way itself.
(a) City Restoration. If the city restores the right-of-way, permittee shall pay
the costs thereof within thirty (30) days of billing. If, following such
restoration, the pavement settles due to permittee's improper backfilling, the
permittee shall pay to the city, within thirty (30) days of billing, all costs
associated with correcting the defective work.
(b) Permittee Restoration. If the permittee restores the right-of-way
itself, it shall at the time of application for an excavation permit post a
construction performance bond in accordance with the provisions of
Minnesota Rule 7819.3000.
(c) Degradation Fee in Lieu of Restoration. In lieu of right-of-way
restoration, a right-of-way user may elect to pay a degradation fee. However,
the right-of-way user shall remain responsible for patching and the
degradation fee shall not include the cost to accomplish these responsibilities.
Subd. 3. Standards. The permittee shall perforin excavation, backfilling,
patching and restoration according to the standards and with the materials
specified by the city and shall comply with Minnesota Rule 7819.1100.
Subd. 4. Duty to Correct Defects. The pennittee shall correct defects in
patching or restoration performed by pennittee or its agents. The pennittee
upon notification from the city, shall correct all restoration work to the extent
necessary, using the method required by the city. Said work shall be
completed within five (5) calendar days of the receipt of the notice from the
city, not including days during which work cannot be done because of
circumstances constituting force majeure or days when work is prohibited as
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unseasonable or unreasonable under Section 1.16.
Subd. 5. Failure to Restore. If the permittee fails to restore the right-of-way
in the manner and to the condition required by the city, or fails to
satisfactorily and timely complete all restoration required by the city, the city
at its option may do such work. In that event the permittee shall pay to the
city, within thirty (30) days of billing, the cost of restoring the right-of-way.
If permittee fails to pay as required, the city may exercise its rights under the
construction performance bond.
8-11-13: JOINT APPLICATIONS.
Subd. 1. Joint application. Registrants may jointly apply for permits to
excavate or obstruct the right-of-way at the same place and time.
Subd. 2. Shared fees. Registrants who apply for permits for the same
obstruction or excavation, which the city does not perform, may share in the
payment of the obstruction or excavation permit fee. In order to obtain a joint
permit, registrants must agree among themselves as to the portion each will
pay and indicate the same on their applications.
Subd. 3. With city projects. Registrants who join in a scheduled
obstruction or excavation performed by the city, whether or not it is a
joint application by two or more registrants or a single application, are not
required to pay the excavation or obstruction and degradation portions of
the permit fee, but a permit would still be required.
8-11-14: SUPPLEMENTARY APPLICATIONS.
Subd. 1. Limitation on Area. A right-of-way permit is valid only for the area
of the right-of-way specified in the permit. No permittee may do any work
outside the area specified in the permit, except as provided herein. Any
permittee which determines that an area greater than that specified in the
permit must be obstructed or excavated must before working in that greater
area (i) make application for a permit extension and pay any additional fees
required thereby, and (ii) be granted a new pen -nit or permit extension.
Subd. 2. Limitation on Dates. A right-of-way permit is valid only for the
dates specified in the permit. No permittee may begin its work before the
pennit start date or, except as provided herein, continue working after the end
date. If a pennittee does not finish the work by the permit end date, it must
apply for a new permit for the additional time it needs, and receive the new
permit or an extension of the old permit before working after the end date of
the previous pen -nit. This supplementary application must be submitted
before the permit end date.
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8-11-15: OTHER OBLIGATIONS.
Subd. 1. Compliance with Other Laws. Obtaining a right-of-way permit does
not relieve permittee of its duty to obtain all other necessary permits, licenses,
and authority and to pay all fees required by the city or other applicable rule,
law or regulation. A permittee shall comply with all requirements of local,
state and federal laws, including but not limited to Minnesota Statutes, Section
216D.01-.09 (Gopher One Call Excavation Notice System) and Minnesota
Rules Chapter 7560. A permittee shall perform all work in conformance with
all applicable codes and established rules and regulations, and is responsible
for all work done in the right-of-way pursuant to its permit, regardless of who
does the work.
Subd. 2. Prohibited Work. Except in an emergency, and with the approval of
the city, no right-of-way obstruction or excavation may be done when
seasonally prohibited or when conditions are unreasonable for such work.
Subd. 3. Interference with Right -of -Way. A permittee shall not so obstruct a
right-of-way that the natural free and clear passage of water through the
gutters or other waterways shall be interfered with. Private vehicles of those
doing work in the right-of-way may not be parked within or next to a permit
area, unless parked in conformance with city parking regulations. The
loading or unloading of trucks must be done solely within the defined permit
area unless specifically authorized by the permit.
Subd. 4. Trenchless excavation. As a condition of all applicable permits,
permittees employing trenchless excavation methods, including but not
limited to Horizontal Directional Drilling, shall follow all requirements set
forth in Minnesota Statutes Chapter 216D and Minnesota Rules Chapter 7560
and shall require potholing or open cutting over existing underground utilities
before excavating, as determined by the director.
8-11-16: DENIAL OF PERMIT. The city may deny a permit for failure to meet the
requirements and conditions of this chapter or if the city determines that the
denial is necessary to protect the health, safety, and welfare or when necessary
to protect the right-of-way and its current use. Denials will be provided in
writing and in accordance with statutory requirements.
8-11-17: INSTALLATION REQUIREMENTS. The placement of any structures or
facilities, the excavation, backfilling, patching and restoration, and all other
work performed in the right-of-way shall be done in conformance with
Minnesota Rules 7819.1100 and 7819.5000 and other applicable local
requirements, in so far as they are not inconsistent with the Minnesota
Statutes, Sections 237.162 and 237.163. Installation of service laterals shall be
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performed in accordance with Minnesota Rules Chapter 7560 and these
ordinances. Service lateral installation is further subject to those requirements
and conditions set forth by the city in the applicable permits and/or
agreements referenced in Section 1.23 subd. 2 of this ordinance. Wireless
support structures shall not exceed 50 feet in height. To the extent possible,
all ground mounted equipment shall be installed underground or in locations
and in a manner to minimize interference with traffic, pedestrians and other
users of the right of way or the appearance of abutting properties.
8-11-18: INSPECTION.
Subd. 1. Notice of Completion. When the work under any permit hereunder
is completed, the permittee shall furnish a completion certificate in
accordance Minnesota Rule 7819.1300.
Subd. 2. Site Inspection. Permittee shall make the work -site available to
the city and to all others as authorized by law for inspection at all
reasonable times during the execution of and upon completion of the
work.
Subd 3. Authority of'Director.
(a) 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.
(b) The director may issue an order to the permittee for any work that 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
will be cause for revocation of the permit. Within ten (10) days after issuance
of the order, the permittee shall present proof to the director that the violation
has been corrected. If such proof has not been presented within the required
time, the director may revoke the permit pursuant to Sec. 1.22.
8-11-19: WORK DONE WITHOUT A PERMIT.
Subd. 1. Emergency Situations. Each registrant shall immediately notify the
director of any event regarding its facilities that it considers to be an
emergency. The registrant may proceed to take whatever actions are
necessary to respond to the emergency. Excavators' notification to Gopher
State One Call regarding an emergency situation does not fulfill this
requirement. Within two (2) business days after the occurrence of the
emergency, the registrant shall apply for the necessary permits, pay the fees
associated therewith, and fulfill the rest of the requirements necessary to
bring itself into compliance with this chapter for the actions it took in
response to the emergency.
If the city becomes aware of an emergency regarding a registrant's facilities,
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the city will attempt to contact the local representative of each registrant
affected, or potentially affected, by the emergency. In any event, the city may
take whatever action it deems necessary to respond to the emergency, the cost
of which shall be borne by the registrant whose facilities occasioned the
emergency.
Subd. 2. Non Emergency Situations. 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 said permit, pay double all the other fees
required by the city code, deposit with the city the fees necessary to correct
any damage to the right-of-way, and comply with all of the requirements of
this chapter.
8-11-20: SUPPLEMENTARY NOTIFICATION. If the obstruction or excavation of the
right-of-way begins later or ends sooner than the date given on the permit,
permittee shall notify the city of the accurate information as soon as this
information is known.
8-11-21: REVOCATION OF PERMITS.
Subd. 1. Substantial Breach. The city reserves its right, as provided herein, to
revoke any right-of-way permit without a fee refund, if there is a substantial
breach of the terms and conditions of any statute, ordinance, rule or
regulation, or any material condition of the permit. A substantial breach by
permittee shall include, but shall not be limited to, the following:
(a) The violation of any material provision of the right-of-way permit;
(b) 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;
(c) Any material misrepresentation of fact in the application for a right-of-
way permit;
(d) The failure to complete the work in a timely manner, unless a permit
extension is obtained or unless the failure to complete work is due to
reasons beyond the permittee's control; or
(e) The failure to correct, in a timely manner, work that does not conform to
a condition indicated on an order issued pursuant to Sec. 1.19.
Subd. 2. Written Notice of Breach. If the city determines that the permittee
has committed a substantial breach of a term or condition of any statute,
ordinance, rule, regulation or any condition of the permit, the city shall make
a written demand upon the permittee to remedy such violation. The demand
shall state that continued violations may be cause for revocation of the
permit. A substantial breach, as stated above, will allow the city, at its
discretion, to place additional or revised conditions on the pen -nit to mitigate
and remedy the breach.
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Subd. 3. Response to Notice of Breach. Within twenty-four (24) hours of
receiving notification of the breach, permittee shall provide the city with a
plan, acceptable to the city that will cure the breach. Permittee's failure to so
contact the city, or permittee's failure to timely submit an acceptable plan, or
permittee's failure to reasonably implement the approved plan, shall be cause
for immediate revocation of the permit. Further, permittee's failure to so
contact the city, or permittee's failure to submit an acceptable plan, or
pennittee's failure to reasonably implement the approved plan, shall
automatically place the permittee on probation for one (1) full year
Subd. 4. Cause for Probation. From time to time, the city may
establish a list of conditions of the permit, which if breached will
automatically place the permittee on probation for one full year, such
as, but not limited to, working out of the allotted time period or
working on right-of-way grossly outside of the permit authorization.
Subd. S. Automatic Revocation. If a permittee, while on
probation, commits a breach as outlined above, permittee's permit
will automatically be revoked and permittee will not be allowed
further permits for one full year, except for emergency repairs.
Subd. 6. Reimbursement of city costs. If a permit is revoked, the permittee
shall also reimburse the city for the city's reasonable costs, including
restoration costs and the costs of collection and reasonable attorneys' fees
incurred in connection with such revocation.
8-11-22: MAPPING DATE.
Subd. 1. Information Required. Each registrant and permittee shall
provide mapping information required by the city in accordance with
Minnesota Rules 7819.4000 and 7819.4100. Within ninety (90) days
following completion of any work pursuant to a permit, the permittee
shall provide the director accurate maps and drawings certifying the
"as -built" location of all equipment installed, owed and maintained by
the permittee. Such maps and drawings shall include the horizontal and
vertical location of all facilities and equipment and shall be provided
consistent with the city's electronic mapping system, when practical or
as a condition imposed by the director Failure to provide maps and
drawings pursuant to this subsection shall be grounds for revoking the
permit holder's registration.
Subd. 2. Service Laterals. All permits issued for the installation or
repair of service laterals, other than minor repairs as defined in
Minnesota Rules 7560.0150 subpart 2, shall require the permittee's use
of appropriate means of establishing the horizontal locations of
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installed service laterals and the service lateral vertical locations in
those cases where the director reasonably requires it. Permittees or their
subcontractors shall submit to the director evidence satisfactory to the
director of the installed service lateral locations. Compliance with this
subdivision 2 and with applicable Gopher State One Call law and
Minnesota Rules -governing service laterals installed after December
311 2005 shall be a condition of any city approval necessary for
a) Payments to contractors working on a public improvement project
including those under Minnesota Statutes Chapter 429 and
b) City approval under development agreements or other subdivision or
site plan approval under Minnesota Statutes Chapter 462. The director
shall reasonably determine the appropriate method of providing such
information to the city. Failure to provide prompt and accurate
information on the service laterals installed may result in the revocation
of the permit issued for the work or future permits to the offending
permittee or its subcontractors.
8-11-23: LOCATION AND RELOCATION OF FACILITIES.
Subd. 1. Placement, location, and relocation of facilities must comply with
the Act, with other applicable law, and with Minnesota Rules 7819.3 1001
7819.5000 and 7819.5 100, to the extent the rules do not limit authority
otherwise available to cities
Subd. 2. 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 is or, pursuant to current technology, the city expects will
someday 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.
Any registrant who has facilities in the right-of-way in a position at variance
with the corridors established by the city shall, no later than at the time of
the next reconstruction or excavation of the area where the facilities are
located, move the facilities to the assigned position within the right-of-way,
unless this requirement is waived by the city for good cause shown, upon
consideration of such factors as the remaining economic life of the facilities,
public safety, customer service needs and hardship to the registrant.
Subd. 3. Nuisance. One year after the passage of this chapter, any facilities
found in a right-of-way that have not been registered shall be deemed to be a
nuisance. The city may exercise any remedies or rights it has at law or in
equity, including, but not limited to, abating the nuisance or taking
possession of the facilities and restoring the right-of-way to a useable
condition.
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Subd. 4. Limitation of Space. To protect 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.
8-11-24: PRE -EXCAVATION FACILITIES LOCATION. In addition to complying
with the requirements of Minn. Stat. 216D.01-.09 ("One Call Excavation
Notice System") before the start date of any right-of-way excavation, each
registrant who has facilities or equipment in the area to be excavated shall
mark the horizontal and vertical placement of all said facilities. Any registrant
whose facilities are less than twenty (20) inches below a concrete or asphalt
surface shall notify and work closely with the excavation contractor to
establish the exact location of its facilities and the best procedure for
excavation.
8-11-25: DAMAGE TO OTHER FACILITIES. When the city does work in the right-
of-way and finds it necessary to maintain, support, or move a registrant's
facilities to protect it, the city shall notify the local representative as early as is
reasonably possible. The costs associated therewith will be billed to that
registrant and must be paid within thirty (30) days from the date of billing.
Each registrant shall be responsible for the cost of repairing any facilities in
the right-of-way which it or its facilities damage. Each registrant shall be
responsible for the cost of repairing any damage to the facilities of another
registrant caused during the city's response to an emergency occasioned by
that registrant's facilities.
8-11-26: RIGHT-OF-WAY VACATION. Reservation of eight. If the city vacates a
right-of-way that contains the facilities of a registrant, the registrant's rights in
the vacated right-of-way are governed by Minnesota Rules 7819.3200.
8-11-27: INDEMNIFICATION AND LIABILITY. By registering with the city, or by
accepting a permit under this chapter, a registrant or pennittee agrees to
defend and indemnify the city in accordance with the provisions of Minnesota
Rule 7819.1250.
8-11-28: ABANDONED AND UNUSABLE FACILITIES.
Subd. 1. Discontinued Operations. A registrant who has determined to
discontinue all or a portion of its operations in the city must provide
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information satisfactory to the city that the registrant's obligations for its
facilities in the right-of-way under this chapter have been lawfully assumed
by another registrant.
Subd. 2. Removal. Any registrant who has abandoned facilities in any right-
of-way shall remove it from that right-of-way, unless this requirement is
waived by the city.
8-10-29: APPEAL. A right-of-way user that: (1) has been denied registration; (2) has
been denied a pen -nit; (3) has had a permit revoked; (4) believes that the fees
imposed are not in conformity with Minn. Stat. § 237.163, Subd. 6; or (5)
disputes a determination of the director regarding Sectionl .23 subd.2 of this
ordinance may have the denial, revocation, fee imposition, or decision
reviewed, upon written request, by the city council. The city council shall act
on a timely written request at its next regularly scheduled meeting, provided
the right-of-way user has submitted its appeal with sufficient time to include
the appeal as a regular agenda item. A decision by the city council affirming
the denial, revocation, or fee imposition will be in writing and supported by
written findings establishing the reasonableness of the decision.
8-10-30: RESERVATION OF REGULATORY AND POLICE POWERS. A
permittee's rights are subject to the regulatory and police powers of the city to
adopt and enforce general ordinances as necessary to protect the health, safety
and welfare of the public.
8-10-31: SERVERABILITY. If any portion of this chapter is for any reason held
invalid by any court of competent jurisdiction, such portion shall be deemed a
separate, distinct, and independent provision and such holding shall not affect
the validity of the remaining portions thereof. Nothing in this chapter
precludes the city from requiring a franchise agreement with the applicant, as
allowed by law, in addition to requirements set forth herein.
Adopted by the City Council on the 251h day of September, 2017.
Attest:
Citi inistrator
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Mayor
VOTING IN FAVOR: Davidson, Fair, Gabler, Hilgart, and Stumpf
VOTING IN OPPOSITION: None
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