Subd. 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.
A. Accordingly, the city hereby enacts this section of this code relating to right-of-way permits and administration. This section 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 section, persons excavating and obstructing the rights-of-way will bear financial responsibility for their work. Finally, this section provides for recovery of out-of-pocket and projected costs from persons using the public rights-of-way.
B. This section shall be interpreted consistently with M.S. §§ 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 section shall also be interpreted consistent with Minn. Rules, parts 7819.0050 to 7819.9950 and Minn. Rules, Chapter 7560 where possible. To the extent any provision of this section 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 section 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.
Subd. 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 to M.S. § 237.163, Subd. 2(b), to manage rights-of-way within its jurisdiction.
Subd. 3. Definitions. The following definitions apply in this section of this code. References hereafter to "Subdivisions" are, unless otherwise specified, references to Subdivisions in this section. Defined terms remain defined terms, whether or not capitalized.
A. 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 considered abandoned upon either the declaration of the right-of-way user or upon the facility being out of use for a period of 12 months or more.
B. APPLICANT. Any person requesting permission to excavate, obstruct, or otherwise place facilities in a right-of-way.
C. CITY. The city of Austin, Minnesota. For purposes of Subd. 28, city also means the city's elected officials, officers, employees, and agents.
D. COLLOCATE or COLLOCATION. To install, mount, maintain, modify, operate, or replace a small wireless facility on, under, within, or adjacent to an existing wireless support structure or utility pole that is owned privately, or by the city or other governmental unit.
E. COMMISSION. The State of Minnesota Public Utilities Commission.
F. CONSTRUCTION PERFORMANCE BOND. Any of the following forms of security provided at permittee's option:
1. Individual project bond;
2. Cash deposit;
3. Security of a form listed or approved under M.S. § 15.73, Subd. 3;
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.
G. 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.
H. DEGRADATION COST. Subject to Minn. Rules, part 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, set forth in Minn. Rules, parts 7819.9900 to 7819.9950.
I. 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.
J. DEPARTMENT. The department of public works of the city.
K. DIRECTOR. The director of the department of public works of the city, or her or his designee.
L. DELAY PENALTY. The penalty imposed as a result of unreasonable delays in right-of-way excavation, obstruction, patching, or restoration as established by permit.
M. 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.
N. EQUIPMENT. Any tangible asset used to install, repair, or maintain facilities in any right-of-way.
O. EXCAVATE. To dig into or in any way remove or physically disturb or penetrate any part of a right-of-way.
P. EXCAVATION PERMIT. The permit which, pursuant to this section, 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.
Q. EXCAVATION PERMIT FEE. Money paid to the city by an applicant to cover the costs as provided in Subd. 13.
R. FACILITY or FACILITIES. Any tangible asset in the right-of-way used to provide utility or telecommunications service.
S. FIVE-YEAR PROJECT PLAN. Shows projects adopted by the city for construction within the next five years.
T. 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 section.
U. MANAGEMENT COSTS. The actual costs the city incurs in managing its rights-of-way, including 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 facilities during 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. Management costs do not include payment by a telecommunications right-of-way user for the use of the right-of-way, unreasonable fees of a third-party contractor used by the city including fees tied to or based on customer counts, access lines, or revenues generated by the right-of-way or for the city, the fees and cost of litigation relating to the interpretation M.S. §§ 237.162 or 237.163; or any ordinance enacted under those sections, or the city fees and costs related to appeals taken pursuant to Subd. 30 of this section.
V. 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, or so as to hinder maintenance of any city asset.
W. OBSTRUCTION PERMIT. The permit which, pursuant to this section, 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.
X. OBSTRUCTION PERMIT FEE. Money paid to the city by a permittee to cover the costs as provided in Subd. 13.
Y. PATCH or PATCHING PERMANENT. 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.
Z. PATCH or PATCHING TEMPORARY. The compaction of subbase, aggregate base and cold mix asphalt, only to the edges of the excavation. It is temporary in nature and will require maintenance until the permanent patch can be completed.
AA. 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.
BB. PERMIT. Has the meaning given RIGHT-OF-WAY PERMIT in this section.
CC. PERMITTEE. Any person to whom a permit to excavate or obstruct a right-of-way has been granted by the city under this section.
DD. 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.
EE. PROBATION. The status of a person that has not complied with the conditions of this section.
FF. PROBATIONARY PERIOD. One year from the date that a person has been notified in writing that they have been put on probation.
GG. 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.
HH. RESTORE or RESTORATION. The process by which an excavated right-of-way and surrounding area, including pavement, foundation and turf, is returned to the same condition and life expectancy that existed before excavation.
II. 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.
JJ. PUBLIC RIGHT-OF-WAY or 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 non-wire telecommunications or broadcast service.
KK. RIGHT-OF-WAY PERMIT. Either the excavation permit, the obstruction permit, the small cell permit or any combination thereof depending on the context, required by this section.
LL. RIGHT-OF-WAY USER.
1. A telecommunications right-of-way user as defined by M.S. § 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.
MM. SERVICE or UTILITY SERVICE. Includes:
1. Those services provided by a public utility as defined in M.S. § 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 system as defined in M.S. Chapter 238;
4. Natural gas or electric energy or telecommunications services provided by the city;
5. Services provided by a cooperative electric association organized under M.S. Chapter 308A; and
6. Water, and sewer, including service laterals, steam, cooling, or heating services.
NN. 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.
OO. SMALL WIRELESS FACILITY. 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 could fit within such an enclosure; and
2. All other wireless equipment associated with the small wireless facility provided such equipment is, in aggregate, no more than 28 cubic feet in volume, not including 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.
PP. 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.
QQ. TRENCH. An excavation in the pavement, with the excavation having a length equal to or greater than the width of the pavement.
RR. TELECOMMUNICATIONS 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 providing wireless service, or transporting telecommunication or other voice or data information. For purposes of this section, a cable communication system defined and regulated under M.S. Chapter 238, and telecommunication activities related to providing natural gas or electric energy services, a public utility as defined in M.S. § 216B.02, a municipality, a municipal gas or power agency organized under M.S. Chapter 453 and 453A, or a cooperative electric association organized under M.S. Chapter 308A, are not telecommunications right-of-way users for purposes of this section except to the extent such entity is offering wireless service.
SS. TWO YEAR PROJECT PLAN. Shows projects adopted by the city for construction within the next two years.
TT. UTILITY POLE. A pole that is used in whole or in part to facilitate telecommunications or electric service.
UU. WIRELESS FACILITY. Equipment at a fixed location that enables the provision of wireless services between user equipment and a wireless service network, including equipment associated with wireless service, a radio transceiver, antenna, coaxial or fiber-optic cable, regular and backup power supplies, and a small wireless facility, but not including wireless support structures, wireline backhaul facilities, or cables between utility poles or wireless support structures, or not otherwise immediately adjacent to and directly associated with a specific antenna.
VV. 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 cable service.
WW. WIRELESS SUPPORT STRUCTURE. A new or existing structure in a right-of-way designed to support or capable of supporting small wireless facilities, as reasonably determined by the city.
Subd. 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.
Subd. 5. Registration and right-of-way occupancy.
A. Registration. Each person authorized to occupy or use, 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.
B. 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.
C. Exceptions.
1. Nothing herein shall be construed to allow any privately installed improvement, structure, hard surface, landscaping, decorative ornament, or other installation to be located within the right-of-way and any such installation shall be subject to removal, relocation, disturbance, or damage during permitted work within the right-of-way whether by a registrant or the city without creating any claim or liability in favor of the private owner of said installation.
2. Private underground sprinkler and irrigation systems shall be allowed in the right-of-way by permit only, however owner and installers shall be exempt from registration. No compensation shall be made to owner if any sprinkler or irrigation system is required to be removed or if it is damaged by any city or county activity or by any permitted right-of-way activity.
3. Resident-owned sewer and water service lines to a city main and resident owned drain tile lines shall not be required to register, unless requested by the city, but shall be required to obtain permits for excavation and obstruction.
4. However, nothing herein relieves a person from complying with the provisions of the M.S. Chapter 216D, Gopher One Call Law.
Subd. 6. Registration information.
A. Information required. Registration shall be requested on an application form produced by the city. The information provided to the city at the time of registration shall include, but not be limited to:
1. Each registrant's name, Gopher One-Call registration certificate number, address and email address, if applicable, and telephone and facsimile numbers.
2. The name, address, and email address, if applicable, and telephone and facsimile numbers of a local representative. The local representative or designee shall be available at all times. Current information regarding how to contact the local representative in an emergency shall be provided at the time of registration.
3. A certificate of insurance or self-insurance:
a. 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;
b. 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;
c. 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;
d. Requiring that the city be notified 30 days in advance of cancellation of the policy or material modification of a coverage term; and
e. 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 section.
f. The city may require a copy of the actual insurance policies.
g. If the person is a corporation, a copy of the certificate is required to be filed under state law as recorded and certified to by the secretary of state.
h. A copy of the person's order granting a certificate of authority from the Minnesota Public Utilities Commission or other authorization or approval from the applicable state or federal agency to lawfully operate, where the person is lawfully required to have such authorization or approval from said Commission or other state or federal agency.
i. General liability. Public liability, including premises, products and completed operations:
Bodily injury liability | $1,000,000.00 each person $2,000,000.00 each occurrence |
Property damage liability (incl. X, C, and U Coverage) | $2,000,000.00 each occurrence |
Bodily injury and property damage combined | $2,000,000.00 single limit |
Excess or Umbrella Liability | $5,000,000.00 each occurrence $5,000,000.00 aggregate |
Products and Completed Operations | Minimum of one year after completion |
j. Comprehensive. Automobile liability insurance, including owned, nonowned and hired vehicles:
Bodily injury liability | $1,000,000.00 each person $1,000,000.00 each accident |
Property damage liability | $3,000,000.00 each occurrence |
In lieu of the above, bodily injury and property damage combined | $3,000,000.00 single limit |
4. Any other information deemed necessary by the City Engineer deemed necessary to adequately protect the health, safety, and welfare of the city.
B. 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 15 days following the date on which the registrant has knowledge of any change.
Subd. 7. Reporting obligations.
A. 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 frequency of excavations and obstructions of rights-of-way.
The plan shall include, but not be limited to, the following information:
1. The locations and the estimated beginning and ending dates of all projects to be commenced during the next calendar year (in this Subd. 7, a "next-year project"); and
2. 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 Subd. 7, a "five-year project").
The term "project" in this Subd. 7 shall include both next-year projects and five-year projects.
B. 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 project.
Subd. 8. Permit requirement.
A. Permit required. 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.
1. Excavation permit. An excavation permit is required by any person wishing to excavate that part of the public right-of-way described in such permit and to hinder free and open passage over the specified portion of the public right-of-way by placing facilities described therein, to the extent and for the duration specified therein.
2. Obstruction permit. An obstruction permit is required by any person wishing to hinder free and open passage over the specified portion of the public right-of-way for a period of 365 days or less by placing equipment described therein on the public right-of-way, to the extent and for the duration specified therein. An obstruction permit is not required if a party already possesses a valid excavation permit for the same project.
B. 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.
C. Delay penalty. In accordance with Minn. Rules, part 7819.1000, Subp. 3 and notwithstanding B of this Subd. 8, 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.
D. Permit display. Permits issued under this section shall be conspicuously displayed or otherwise available at all times at the indicated work site and shall be available for inspection by the city.
Subd. 9. Permit applications. Application for a permit is made to the city on forms approved by the City Engineer or the City Engineer's designee. 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 section.
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 and all other information deemed relevant by the City Engineer.
C. Payment of money due the city for:
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.
Subd. 10. Issuance of permit; conditions.
A. Permit issuance. If the applicant has satisfied the requirements of this section, the city shall issue a permit.
B. 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 M.S. §§ 216D.01 - .09 (Gopher One Call Excavation Notice System) and Minn. Rules, Chapter 7560.
C. Small wireless facility conditions. In addition to Subd. 10(B), 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:
1. 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.
2. No new wireless support structure installed within the right-of-way shall exceed 50 feet 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 50 feet in height with a structure of the same height subject to such conditions or requirements as may be imposed in the applicable permit.
3. No wireless facility may extend more than ten feet above its wireless support structure.
4. 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.
5. Where an applicant proposes collocation on a decorative wireless support structure, sign or other structure not intended to support small wireless facilities, such equipment shall be consistent with the city's aesthetic standards regarding wireless equipment as adopted by the City Engineer. Such standards shall ensure that wireless equipment is installed with a stealth design and that equipment does not detract from the character of the area in which it is installed. In addition, the City Engineer shall adopt standards that ensure city assets can continue to effectively perform their intended function. Standards shall be made available with the application required for a small cell permit.
6. 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.
7. A permit will be deemed void if the approved equipment is not installed within one year of issuance of the permit.
D. 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:
1. Up to $150 per year for rent to collocate on the city structure.
2. $25 per year for maintenance associated with the collocation;
3. A monthly fee for electrical service as follows:
a. $73 per radio node less than or equal to 100 maximum watts;
b. $182 per radio node over 100 maximum watts; or
c. The actual costs of electricity, if the actual cost exceeds 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.
Subd. 11. Action on small wireless facility permit applications.
A. Deadline for action. The city shall approve or deny a small wireless facility permit application within 90 days after filing of such application or within any timeline established by state law. 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 Subd. 11.
B. Consolidated applications. An applicant may file a consolidated small wireless facility permit application addressing the proposed collocation of up to 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:
1. Are located within a two-mile radius;
2. Consist of substantially similar equipment; and
3. 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.
C. Tolling of deadline. The 90-day deadline for action on a small wireless facility permit application may be tolled if:
1. The city receives applications from one or more applicants seeking approval of permits for more than 30 small wireless facilities within a seven-day period. In such case, the city may extend the deadline for all such applications by 30 days by informing the affected applicants in writing of such extension.
2. The applicant fails to submit all required documents or information and the city provides written notice of incompleteness to the applicant within 30 days of receipt of the application. Upon submission of additional documents or information, the city shall have ten days to notify the applicant in writing of any still-missing information.
3. The city and a small wireless facility applicant agree in writing to toll the review period.
Subd. 12. Permit fees.
A. Excavation permit fee. The city shall impose 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 impose an obstruction permit fee 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.
D. Payment of permit fees. No excavation permit, obstruction permit, or small cell permit shall be issued without payment of all required fees. The city may allow applicant to pay such fees within 30 days of billing.
E. Non-refundable. Permit fees that were paid for a permit that the city has revoked for a breach as stated in Subd. 22 are not refundable.
F. 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.
Subd. 13. Right-of-way patching and restoration.
A. 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 Subd. 16.
B. 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.
1. 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 Minn. Rules, part 7819.3000.
2. City restoration. If the city restores any part of the right-of-way, permittee shall pay the costs thereof within 30 days of billing. If, within 24 months following such restoration, the pavement settles due to permittee's improper backfilling, the permittee shall pay to the city, within 30 days of billing, all costs associated with correcting the defective work.
C. Standards. The permittee shall perform excavation, backfilling, patching, and restoration according to the standards and with the materials specified by the city and shall comply with Minn. Rules, part 7819.1100.
D. Duty to correct defects. The permittee guarantees its work for 24 months following its completion. During this time the permittee shall correct defects in patching or restoration performed by permittee or its agents. The permittee 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 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 unseasonable or unreasonable under Subd. 16.
E. 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 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.
Subd. 14. Joint applications.
A. Joint application. Registrants may jointly apply for permits to excavate or obstruct the right-of-way at the same place and time.
B. 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.
C. 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.
Subd. 15. Supplementary applications.
A. 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 permit or permit extension.
B. 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, 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 permit. This supplementary application must be submitted before the permit end date.
Subd. 16. Other obligations.
A. 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 M.S. §§ 216D.01-.09 (Gopher One Call Excavation Notice System) and Minn. 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.
B. 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 from December 1 through March 15 or when conditions are unreasonable for such work.
C. Interference with right-of-way.
1. 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.
2. Traffic control shall conform to the Minnesota Manual on Uniform Traffic-Control Devices, including the Temporary Traffic-Control Zones Field Manual and any directions of the City Engineer.
D. 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 M.S. Chapter 216D and Minn. Rules, Chapter 7560 and shall require potholing or open cutting over existing underground utilities before excavating, as determined by the Director.
E. Verify location of facility.
1. At the written request of the city, a person shall determine the exact location of their facility, both vertically and horizontally, by means of "potholing" or some other acceptable method, to expose the facility. Reasons to verify shall include, but are not limited to, the following:
a. To verify that the facility was installed at the proper depth and horizontal location per the permit; and
b. To verify actual depth and location for:
i. A present or future city use of the right-of-way;
ii. A public improvement undertaken by the city or by the county or town under a cooperative agreement with the city;
iii. A public improvement undertaken by a private landowner, as authorized or required by the city;
iv. When the public health, safety and welfare require it; or
v. When necessary to prevent interference with the safety and convenience of ordinary travel over the right-of-way.
2. All costs to expose the facility shall be done at the permittee's expense or the city may upon written notice to the permittee, expose the facility, at the permittee's expense.
3. Verification of facilities, both vertical and horizontal, shall be completed within seven calendar days of written notification.
Subd. 17. Denial or revocation of permit.
A. Reasons for denial. The city may deny a permit for failure to meet the requirements and conditions of this section or if the city determines that the denial is necessary to protect the health, safety, and welfare of the public or when necessary to protect the right-of-way and its current use and any city asset or facility.
B. Procedural requirements. The denial or revocation of a permit must be made in writing and must document the basis for the denial. The city must notify the applicant or right-of-way user in writing within three business days of the decision to deny or revoke a permit. If an application is denied, the right-of-way user may address the reasons for denial identified by the city and resubmit its application. If the application is resubmitted within 30 days of receipt of the notice of denial, no additional application fee shall be imposed. The city must approve or deny the resubmitted application within 30 days after submission.
Subd. 18. Installation requirements. The excavation, backfilling, patching and restoration, and all other work performed in the right-of-way shall be done in conformance with Minn. Rules, parts 7819.1100 and 7819.5000 and other applicable local requirements, insofar as they are not inconsistent with the M.S. §§ 237.162 and 237.163. Installation of service laterals shall be performed in accordance with Minn. 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 Subd. 22(B) of this section.
Subd. 19. Inspection.
A. Notice of completion. When the work under any permit hereunder is completed, the permittee shall furnish a completion certificate in accordance Minn. Rules, part 7819.1300 or other as built documentation as deemed necessary by the City Engineer.
B. 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.
C. 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 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 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 Subd. 22.
Subd. 20. Work done without a permit.
A. 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 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 section for the actions it took in response to the emergency.
If the city becomes aware of an emergency regarding a registrant's facilities, 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.
B. 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 section.
Subd. 21. 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.
Subd. 22. Revocation of permits.
A. 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:
1. The violation of any material provision of the right-of-way permit.
2. 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.
3. Any material misrepresentation of fact in the application for a right-of-way permit.
4. 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.
5. The failure to correct, in a timely manner, work that does not conform to a condition indicated on an order issued pursuant to Subd. 19.
B. 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 permit to mitigate and remedy the breach.
C. Response to notice of breach. Within 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.
D. 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, working on right-of-way grossly outside of the permit authorization, improper technique (including, but not limited to, improper compaction) leading to surface failure, violations of M. S. Chapter 216D, negligently hitting or damaging infrastructure, etc.
E. 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.
F. 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.
Subd. 23. Mapping data.
A. Information required. Each registrant and permittee shall provide mapping information required by the city in accordance with Minn. Rules, parts 7819.4000 and 7819.4100. Within 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, owned, 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. Information shall be submitted in AutoCAD (or a format compatible with AutoCAD or readily convertible to AutoCAD) or GIS format with survey grade accuracy.
B. Service laterals. All permits issued for the installation or repair of service laterals, other than minor repairs as defined in Minn. Rules, part 7560.0150, Subp. 2, shall require the permittee's use of appropriate means of establishing the horizontal locations of 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 Subd. 23(B) and with applicable Gopher State One Call law and Minnesota Rules governing service laterals installed after Dec. 31, 2005, shall be a condition of any city approval necessary for:
1. Payments to contractors working on a public improvement project, including those under M.S. Chapter 429; and
2. City approval under development agreements or other subdivision or site plan approval under M.S. 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.
Subd. 24. Location and relocation of facilities.
A. Placement, location, and relocation of facilities must comply with the Act, with other applicable law, with other applicable standards adopted by the City Engineer, and with Minn. Rules, parts 7819.3100, 7819.5000, and 7819.5100, to the extent the rules do not limit authority otherwise available to cities.
B. 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 facility 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.
C. Nuisance. One year after the passage of this section, 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.
D. Limitation of space. To protect the health, safety, and welfare of the public, 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.
E. Relocation of facilities. A registrant must, promptly and at its own expense, with due regard for seasonal working conditions, permanently remove and relocate its facilities in the right-of-way whenever the Director for good cause requests such removal and relocation, and shall restore the right-of-way consistent with city standards and regulations and MN/DOT standard specifications. The Director may make such request to prevent interference by the company's equipment or facilities with:
1. A present or future city use of the right-of-way;
2. A public improvement undertaken by the city or county under a cooperative agreement;
3. A public improvement undertaken by a private landowner, as authorized or required by the city;
4. When the public health, safety and welfare require it; or
5. When necessary to prevent interference with the safety and convenience of ordinary travel over the right-of-way.
F. Relocation notification procedure.
1. The Director shall notify the utility owner when possible at least four months in advance of the need to relocate existing facilities so the owner can plan the relocation. The Director shall provide a second notification to the owner two weeks before the owner needs to begin the relocation. The utility owner shall begin relocation of the facilities within one week of the second notification. All utilities shall be relocated within one month. The Director may allow a different schedule if it does not interfere with the city's project. The utility owner shall diligently work to relocate the facilities within the above schedule.
2. In the event that emergency work by the city or other municipality in the city right-of-way requires relocation of a utility, the notification requirements above are waived. The city and utility shall coordinate efforts to minimize delay.
G. Delay to city project.
1. The Director shall notify the utility owner if the owner's progress will not meet the relocation schedule. If the owner does not take action to ensure the relocation will be completed in accordance with the above schedule and the Director feels this delay will have an adverse impact to a city project, then the Director may hire a competent contractor to perform the relocation. In that event, the city may charge the utility owner all costs incurred to relocate the facility.
2. The city may charge the utility owner for all costs incurred and requested by a contractor working for the city who is delayed because the relocation is not completed in the scheduled time frame and for all costs incurred by the city due to the delay.
3. Notwithstanding the foregoing, a person shall not be required to remove or relocate its facilities from any right-of-way which has been vacated in favor of a non-governmental entity unless and until the reasonable costs thereof are first paid to the person.
4. However, this does not exempt the utility company from paying for the value of any taking of said property by occupation without compensation.
Subd. 25. Pre-excavation facilities location. In addition to complying with the requirements of M.S. §§ 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 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.
Subd. 26. Damage to other facilities.
A. 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. Any costs incurred by the city in maintaining, supporting, or moving registrant's facilities under this paragraph will be billed to that registrant and must be paid within 30 days from the date of billing.
B. 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.
Subd. 27. Right-of-way vacation.
A. Reservation of right. 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 Minn. Rules, part 7819.3200.
Subd. 28. Indemnification and liability. By registering with the city, or by accepting a permit under this section, a registrant or permittee agrees to defend and indemnify the city in accordance with the provisions of Minn. Rules, part 7819.1250.
Subd. 29. Abandoned and unusable facilities.
A. Discontinued operations. A registrant who has determined to discontinue all or a portion of its operations in the city must provide information satisfactory to the city that the registrant's obligations for its facilities in the right-of-way under this section have been lawfully assumed by another registrant.
B. Removal. Any registrant who has abandoned facilities in any right-of-way shall remove it from that right-of-way promptly upon notice that the area has been opened in conjunction with other right-of-way repair, excavation, or construction, unless this requirement is waived by the city. Unreasonable delay will result in abandoned facilities being removed by the city at the expense of the registrant. For spot excavations, the city may proceed to remove abandoned facilities within the excavation and charge the registrant for any costs incurred as part of the removal. Any charges under this Subd. 29 must be paid within 30 days from the date of billing.
Subd. 30. Appeal. A right-of-way user that: (1) has been denied registration; (2) has been denied a permit; (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 Subd. 23(B) of this section 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.
Subd. 31. 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.
Subd. 32. Severability. If any portion of this section 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 section precludes the city from requiring a franchise agreement with the applicant, as allowed by law, in addition to requirements set forth herein.
(Ord. 64, Second Series, passed 8-2-83; Am. Ord. 685, passed 12-7-20)