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A. Permits Required:
a. Except as otherwise provided in this Code, no person shall encumber, excavate, or obstruct any street, alley, lane, drainageway, gutter, sidewalk, trail or other public place within the corporate limits of the City by placing therein or thereon any building, structure, building or construction materials, underground irrigation system, rock, sand, soil, wood, trash receptacle, construction debris, storage receptacle, or other impediment, material or substance whatsoever, or by making any excavation or opening therein, without first having obtained permission in writing from the City to do so. Unless otherwise prohibited by the City, a person may load or unload materials from a vehicle parked in the right-of-way for a period not exceeding two (2) hours; provided, that the vehicle is parked against the curb in such a manner that two (2) vehicles are able to safely pass that parked vehicle at the same time.
b. No person or entity shall install or connect a driveway to a City street located within a public right-of-way or easement without first obtaining a driveway permit from the City. No such permit shall be required for: 1) construction pursuant to a valid building permit for a new residential structure on a vacant lot; and 2) commercial and industrial properties with driveways constructed pursuant to a site plan approved by the City Council.
c. No person or entity shall install or connect a nonpublic sidewalk to a public sidewalk or City street located within a public right-of-way or easement without first obtaining a permit to do so from the City.
d. Except as otherwise provided in this Code, no person may obstruct or excavate any right-of-way, or install or place facilities in the right-of-way, without first having obtained the appropriate right-of-way permit from the City to do so.
2. Excavation Permit: An excavation permit is required by a registrant to excavate that part of the right-of-way described in the 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.
3. Obstruction Permit: An obstruction 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 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.
4. Small Wireless Facility Permit: A small wireless facility permit is required by a registrant to erect or install a wireless support structure, to collocate a small wireless facility, or to otherwise install a small wireless facility in the specified portion of the right-of-way, to the extent specified therein, provided that such permit shall remain in effect for the length of time the facility is in use, unless lawfully revoked.
B. Application For Permit: 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:
1. Registration with the City pursuant to this chapter;
2. 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.
3. Payment of money due the City for:
a. Permit fees, estimated restoration costs and other management costs.
b. Prior obstructions or excavations.
c. 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.
d. Franchise fees or other charges, if applicable.
4. Payment of disputed amounts due the City by posting security or depositing in an escrow account an amount equal to at least one hundred ten percent (110%) of the amount owing.
5. 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.
C. Permit Fees And Charges:
1. Fees Established:
a. Excavation Permit Fee: The City shall establish an excavation permit fee in an amount sufficient to recover the following costs:
(1) The City management costs.
(2) Degradation costs, if applicable.
b. Obstruction Permit Fee: The City shall establish the obstruction permit fee which shall be in an amount sufficient to recover the City management costs.
c. Small Wireless Facility Permit Fee: The City shall impose a small wireless facility permit fee in an amount sufficient to recover:
(1) Management costs, and;
(2) City engineering, make-ready, and construction costs associated with collocation of small wireless facilities.
2. Payment Of Fees: No excavation permit or obstruction permit shall be issued without payment of excavation or obstruction permit fees. The City may allow the applicant to pay such fees within thirty (30) days of billing.
3. Fees Nonrefundable: Permit fees that were paid for a permit that the City has revoked for a breach, as stated in subsection K of this section are not refundable.
4. Charges To Franchisees: 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.
D. Issuance Of Permit: If the applicant has satisfied the requirements of this chapter, the City shall issue a permit.
1. 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 sections 216D.01 - .09 (Gopher One Call Excavation Notice System) and Minnesota Rules chapter 7560.
2. Small Wireless Facility Conditions: In addition to the conditions described in subsection D1 of this section, the erection or installation of a wireless support structure, the collocation of a small wireless facility, or other installation of a small wireless facility in the right-of-way, shall be subject to the following conditions:
a. A small wireless facility shall only be collocated on the particular wireless support structure, under those attachment specifications, and at the height indicated in the applicable permit application.
b. No new wireless support structure installed within the right- of-way shall exceed fifty feet (50') in height without the City's written authorization, provided that the City may impose a lower height limit in the applicable permit to protect the public health, safety and welfare or to protect the right-of-way and its current use, and further provided that a registrant may replace an existing wireless support structure exceeding fifty feet (50') in height with a structure of the same height subject to such conditions or requirements as may be imposed in the applicable permit.
c. No wireless facility may extend more than ten feet (10') above its wireless support structure.
d. Where an applicant proposes to install a new wireless support structure in the right-of-way, the City may impose separation requirements between such structure and any existing wireless support structure or other facilities in and around the right-of- way.
e. Where an applicant proposes collocation on a decorative wireless support structure, sign or other structure not intended to support small wireless facilities, the City may impose reasonable requirements to accommodate the particular design, appearance or intended purpose of such structure.
f. Where an applicant proposes to replace a wireless support structure, the City may impose reasonable restocking, replacement, or relocation requirements on the replacement of such structure.
E. Denial Or Revocation Of Permit:
1. Reasons For Denial: The City may deny or revoke a permit for failure to meet the requirements and conditions of this chapter or if the City determines that the denial or revocation is necessary to protect the health, safety, and welfare or when necessary to protect the right-of-way and its current use.
2. Procedural Requirements: The denial or revocation of a permit must be made in writing and must document the basis for the denial or revocation. The City must notify the applicant or right-of-way user in writing within three (3) business days of the decision to deny or revoke a permit. If an application is denied or revoked, the right-of-way user may address the reasons for denial or revocation identified by the City and resubmit its application. If the application is resubmitted within thirty (30) days of receipt of the notice of denial or revocation, no additional application fee shall be imposed. The City must approve or deny the resubmitted application within thirty (30) days after submission.
F. 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.
G. Extension Of Time Limits: No person may excavate or obstruct the right-of-way beyond the date or dates specified in the permit unless:
1. Such person makes a supplementary application for another right-of-way permit before the expiration of the initial permit; and
2. A new permit or permit extension is granted.
H. Delay Penalty: In accordance with Minnesota Rules 7819.1000, subdivision 3, and notwithstanding subsection G 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.
I. Display Of Permit: 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.
J. Supplementary Applications:
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:
a. Make application for a permit extension and pay any additional fees required thereby; and
b. Be granted a new permit or permit extension.
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 permit start date or, except as provided herein, continue working after the end date. If a permittee does not finish the work by the permit end date, such permittee must apply for a new permit for the additional time needed, and receive the new permit or an extension of the old permit before working after the end date of the previous permit. This supplementary application must be submitted before the permit end date.
K. Revocation Of Permit:
1. Authority; 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 section 8-2-15 of this chapter.
2. 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 permit to mitigate and remedy the breach.
3. Response To Notice: 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 permittee's failure to reasonably implement the approved plan, shall automatically place the permittee on probation for one full year.
a. 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 rights-of-way grossly outside of the permit authorization.
b. 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.
5. 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 attorney fees incurred in connection with such revocation.
L. Small Wireless Facility Agreement: A small wireless facility shall only be collocated on a small wireless support structure owned or controlled by the City, or any other City asset in the right-of-way, after the applicant has executed a standard small wireless facility collocation agreement with the City. The standard collocation agreement may require payment of the following as established in section 3-1-3 of the city code:
1. Yearly rent to collocate on the City structure.
2. Per year fee for maintenance associated with the collocation.
3. A monthly fee for electrical service as follows:
a. Fee per radio node less than or equal to one hundred (100) maximum watts;
b. Fee per radio node over one hundred (100) maximum watts; or
c. The actual costs of electricity, if the actual costs exceed the foregoing.
The standard collocation agreement shall be in addition to, and not in lieu of, the required small wireless facility permit, provided, however, that the applicant shall not be additionally required to obtain a license or franchise in order to collocate. Issuance of a small wireless facility permit does not supersede, alter or affect any then-existing agreement between the City and applicant.
M. Action On Small Wireless Facility Permit Applications:
1. Deadline For Action: The City shall approve or deny a small wireless facility permit application within ninety (90) days after filing of such application. The small wireless facility permit, and any associated building permit application, shall be deemed approved if the City fails to approve or deny the application within the review periods established in this section.
2. Consolidated Applications: An applicant may file a consolidated small wireless facility permit application addressing the proposed collocation of up to fifteen (15) small wireless facilities, or a greater number if agreed to by a local government unit, provided that all small wireless facilities in the application:
a. Are located within a two-mile radius;
b. Consist of substantially similar equipment; and
c. Are to be placed on similar types of wireless support structures.
In rendering a decision on a consolidated permit application, the City may approve some small wireless facilities and deny others, but may not use denial of one or more permits as a basis to deny all small wireless facilities in the application.
3. Tolling Of Deadline: The 90-day deadline for action on a small wireless facility permit application may be tolled if:
a. The City receives applications from one or more applicants seeking approval of permits for more than thirty (30) small wireless facilities within a seven-day period. In such case, the City may extend the deadline for all such applications by thirty (30) days by informing the affected applicants in writing of such extension.
b. The applicant fails to submit all required documents or information and the City provides written notice of incompleteness to the applicant within thirty (30) days of receipt of the application. Upon submission of additional documents or information, the City shall have ten (10) days to notify the applicant in writing of any still-missing information.
c. The City and a small wireless facility applicant agree in writing to toll the review period. (Ord. 2004-13; amd. Ord. 2017-12, 12-4-2017; Ord. 2019-13, 12-16-2019)