Section
71.01 Purpose
71.02 Definitions
71.03 Registration
71.04 Reporting obligations
71.05 Permit required
71.06 Timeliness of work; supplementary notification
71.07 Standards for construction, installation
71.08 Standards for wireless telecommunication facilities; construction
71.09 Patching, restoration of right-of-way
71.10 Other obligations
71.11 Denial, revocation of permit
71.12 Emergencies; work done without a permit
71.13 Inspection
71.14 Appeal
71.15 Mapping data
71.16 Underground facilities; locations
71.17 Relocation of facilities
71.18 Pre-excavation facilities locations
71.19 Damage to other facilities
71.20 Right-of-way vacation
71.21 Discontinued, unusable equipment and facilities
71.22 Indemnification, liability
71.23 Franchise holders
71.99 Penalty
(A) The city holds the rights-of-way within its geographical boundaries as an asset in trust for its citizens. The city and other public entities have a substantial investment of public funds to build and maintain the rights-of-way. It also recognizes that some persons, by placing his or her equipment in the right-of-way and charging the citizens of the city for goods and services delivered thereby, are using this property held for the public good. Although the services are often necessary or convenient for the citizens, the persons receive revenue and/or profit through his or her use of public property. Although the installation of the service delivery facilities are, in most cases, necessary and proper use of the right-of-way, the city must regulate and manage the uses for the common good.
(B) To provide for the health, safety, and well-being of its citizens and to ensure the structural integrity of its streets and the appropriate use of rights-of-way, the city strives to keep its rights-of-way in a state of good repair and free from unnecessary encumbrances. Although the general population funds the majority of the upkeep of the rights-of-way, one of the causes for the early and excessive deterioration of its rights-of-way is frequent excavation.
(C) In order to fulfill its duties imposed by the State Office of Pipeline Safety under Minn. Rules Chapter 7560, as it is amended from time to time, to maintain information regarding the location of privately-owned and installed underground facilities within a public right-of-way, and to protect the public health, safety, and welfare from any dangers posed by underground facilities, the location of which is not of record, the city shall require private property owners, and his or her private utility contractors, excavators, and installers, to provide the city with up-to-date, accurate information of all underground equipment installed in the public right-of-way or in any public ground, or on any property where the facility or equipment is now, or in the future to be, connected to the city’s facilities.
(D) This chapter imposes regulations on the placement and maintenance of facilities and equipment currently within its rights-of-way, or to be placed therein at some future time. Under this chapter, persons excavating, disturbing, or obstructing the rights-of-way will bear a share of the financial responsibility for his or her work through the recovery of out-of-pocket and projected costs for maintaining the integrity of the public rights-of-way.
(E) This chapter also provides for recovery of the city’s costs associated with managing its rights-of-way.
(F) This chapter shall be interpreted consistently with 1997 Session Laws, Chapter 123, substantially codified in M.S. §§ 237.16, 237.162, 237.163, 237.79, 237.81, and 238.086, as they may be amended from time to time (the “Act”), and 2017 Session Laws, Chapter 94 amending 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 consistently with Minn. Rules parts 7819.0050 through 7819.9950, as applicable, as they may be amended from time to time.
(G) Pursuant to the authority granted to the city under state and federal statutory, administrative, and common law, the city elects, pursuant M.S. § 237.163, subd. 2(b), as it may be amended from time to time, to manage rights-of-way within its jurisdiction.
(Ord. 277, passed 11-13-2017)
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
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.
APPLICANT. Any person requesting permission to excavate or obstruct a right-of-way.
CITY. The City of Braham, Minnesota.
CITY MANAGEMENT COSTS. The actual costs incurred by the city for public rights-of-way management, including, but not limited to, costs associated with registering applicants seeking permission to excavate or obstruct a right-of-way; issuing, processing, and verifying right-of-way permit applications; inspecting job sites and restoration projects; maintaining, supporting, protecting, or moving user equipment during public right-of-way work; determining the adequacy of right-of-way restoration; restoring work inadequately performed after providing notice and opportunity to correct the work; mapping of “as-built” locations of facilities located in rights-of-way; and revoking right-of-way permits, and performing all other functions required by this chapter, including other costs the city may incur in managing the provisions of this chapter.
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.
COMMISSION. Minnesota Public Utilities Commission.
CONGESTED RIGHT-OF-WAY. A crowded condition in the subsurface of the public right-of-way that occurs when the maximum lateral spacing between existing underground facilities does not allow for construction of new underground facilities without using hand digging to expose the existing lateral facilities in conformance with M.S. § 216D.04, subd. 3, as it may be amended from time to time, over a continuous length in excess of 500 feet.
CONSTRUCTION PERFORMANCE BOND. Any of the following forms of security provided at the Planner’s option:
(1) Individual project bond, including a LICENSE AND PERMIT BOND;
(2) Cash deposit;
(3) Security of a form listed or approved under M.S. § 15.73, as it may be amended from time to time;
(4) Letter of credit, in a form acceptable to the city;
(5) Self-insurance, in a form acceptable to the city; or
(6) A blanket bond for projects within the city, or other form of construction bond, for a time specified and in a form acceptable to the city.
DATA CONVERSION FEE. The fee covering the city’s cost of converting each submission of data required by this chapter into the city’s electronic format, which shall apply separately to each set of data required, including, without limitation, the permit application, scaled drawings, and mapping data.
DEGRADATION. A decrease in the useful life of the right-of-way caused by excavation in, or disturbance of, the right-of-way, resulting in the need to reconstruct the right-of-way earlier than would be required if the excavation or disturbance did not occur.
DEGRADATION COST. Subject to Minn. Rules part 7819.1100, 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 set forth in Minn. Rules parts 7819.9900 through 7819.9950.
DEGRADATION FEE. The fee established at the time of permitting by the city to recover costs associated with the decrease in the useful life of the right-of-way caused by the excavation, and which equals the degradation cost.
DELAY PENALTY. The penalty imposed as a result of unreasonable delays in the permitted work within the right-of-way including construction, excavation, obstruction, patching, or restoration as established by a permit.
DEPARTMENT. The Department of Public Works of the city.
DIRECTOR. The Director of the Department of Public Works of the city, or his or her designee.
DISCONTINUED FACILITY.
(1) A facility no longer in service or physically disconnected from a portion of the operating facility, or from any other facility, that is in use or still carries service.
(2) A facility that is deemed discontinued by the right-of-way user.
EMERGENCY. A condition that:
(1) Poses a clear and immediate danger to life or health, or of a significant loss of property; or
(2) Requires immediate repair or replacement in order to restore service to a customer.
EMERGENCY HOLE. Excavation of a hole necessitated by a condition creating a clear and immediate threat to life, health, safety, or property, or requiring immediate repair or replacement in order to 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. A permit which must be obtained before a person may excavate in a right-of-way. An EXCAVATION PERMIT allows the holder to excavate in that part of the right-of-way described in the permit.
EXCAVATION PERMIT FEE. Money paid to the city by an applicant to cover the costs as provided in § 71.05(A).
FACILITY OR FACILITIES. Any tangible asset in the right-of-way required to provide utility service. The term does not include facilities to the extent the location and relocation of the facilities are preempted by M.S. § 161.45, as it may be amended from time to time, governing utility facility placement in state trunk highways.
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 right-of-way having a length that is equal to, or less than, the width pavement or adjacent pavement of the right-of-way for the section of the roadway where the work is occurring.
LOCAL REPRESENTATIVE. A local person or persons, or designee of the person or persons, authorized by a registrant to accept service and to make decisions for the registrant regarding all matters within the scope of this chapter.
MANAGEMENT COSTS. The actual costs the city incurs in managing its rights-of-way, including the 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 of Minnesota Session Laws 1997, Chapter 123; M.S. §§ 237.162 or 237.163, as they may be amended from time to time; or any ordinance enacted under those sections, or the city fees and costs related to appeals taken pursuant to § 71.14.
OBSTRUCT. To place any tangible object upon a public right-of-way so as to hinder free and open passage over that, or any part, of the right-of-way for an aggregate period of eight hours or more, in conjunction with the issuance of a right-of-way permit.
OBSTRUCTION PERMIT. A permit which must be obtained before a person may obstruct a right-of-way, allowing the holder to hinder free and open passage over the specified portion of that right-of-way by placing equipment described therein on the right-of-way for the duration specified in the permit, including a blanket permit for a period of time and for types of work specified by the Planner.
OBSTRUCTION PERMIT FEE. Money paid to the city by a permittee to cover the costs as provided in § 71.05(O).
PATCH or PATCHING. A method of pavement replacement that is temporary in nature. A PATCH consists of:
(1) The compaction of the subbase and aggregate base; and
(2) The replacement, in kind, of the existing pavement for a minimum of two feet beyond the edges of the excavation in all directions.
A PATCH is considered full restoration only when the pavement is included in the city’s five-year project plan.
PAVEMENT. Any type of improved surface that is within the public right-of-way and that is paved, or otherwise constructed, with paver blocks, bituminous, concrete, aggregate, or gravel.
PERMIT. Has the meaning given to RIGHT-OF-WAY PERMIT in M.S. § 237.162, as it may be amended from time to time.
PERMIT HOLDER. Any person to whom a permit to excavate or obstruct a right-of-way has been granted by the city under this chapter.
PERMITEE. Any person to whom 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 non-profit, and whether natural, corporate, or political. Examples include:
(1) A business or commercial enterprise organized as any type or combination of corporation, limited liability company, partnership, limited liability partnership, proprietorship, association, cooperative, joint venture, carrier, or utility, and any successor or assignee of any of them;
(2) A social or charitable organization; and
(3) Any type or combination of political subdivision, which includes the executive, judicial, or legislative branch of the state, a local government unit, or a combination of any of them.
PLANNER. The city’s Planner or designee.
POTHOLING. Excavating the area above an underground facility to determine the precise location of the underground facility without damage to it, before excavating within two feet of the marked location of the underground facility, as required in M.S. Chapter 216D, as it may be amended from time to time.
PROBATION. The status of a person that has not complied with the conditions of this chapter.
PROBATIONARY PERIOD. One year from the date that a person has been notified, in writing, that they have been put on probation.
PUBLIC RIGHT-OF-WAY or RIGHT-OF-WAY. The area on, below, or above a public roadway, highway, street, cart way, 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.
(1) Who has, or seeks to have, his or her facilities or equipment located in any right-of-way; or
(2) In any way occupies or uses, or seeks to occupy or use, the right-of-way, or place his or her facilities or equipment in the right-of-way.
RESTORE or RESTORATION. The process by which the right-of-way and surrounding area, including pavement and foundation, is returned to the same condition and life expectancy that existed before excavation.
RESTORATION COST. The amount of money paid to the city by a permit holder to achieve the level of restoration according to city.
RIGHT-OF-WAY PERMIT. An excavation permit, obstruction permit, or a utility permit, or any combination thereof, depending on the context required by this chapter.
RIGHT-OF-WAY PERMIT PROCESSING FEE. The portion of the right-of-way permit fee covering the city’s cost of processing the permit application that is not subject to refund upon withdrawal of the application.
RIGHT-OF-WAY USER.
(1) A telecommunications RIGHT-OF-WAY USER, as defined by M.S. § 237.162, subd. 4, as it may be amended from time to time; or
(2) A person owning or controlling a facility in the public right-of-way that is used, or is intended to be used, for providing utility service, and who has a right under the law, franchise, or this chapter to use the public right-of-way.
SERVICE or UTILITY SERVICE. Includes, but is not limited to:
(1) Those SERVICES provided by a public utility as defined in M.S. § 216B.02, subds. 4 and 6, as it may be amended from time to time;
(2) SERVICES of a telecommunications right-of-way user, including transporting of voice or data information;
(3) Natural gas or electric energy, or telecommunications SERVICES provided by a governmental unit;
(4) Pipeline, community antenna television, fire and alarm communications, water, sewer, electricity, light, heat, cooling energy, or power SERVICES;
(5) The SERVICES provided by a corporation organized for the purposes set forth in M.S. § 301B.01, as it may be amended from time to time;
(6) The SERVICES provided by a district heating or cooling system; and
(7) CABLE COMMUNICATION SYSTEMS, as defined in M.S. Chapter 238, as it may be amended from time to time.
SERVICE LATERAL. An underground facility that is used to transmit, distribute, or furnish gas, electricity, communications, or water from a common source to an end-use customer. A SERVICE LATERAL is also an underground facility that is used in the removal of wastewater from a customer’s premises.
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 an enclosure; and
(2) All other wireless equipment associated with the SMALL WIRELESS FACILITY, provided the 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.
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.
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 chapter, a cable communication system, defined and regulated under M.S. Chapter 238, as it may be amended from time to time, and telecommunication activities related to providing natural gas or electric energy services, a public utility as defined in M.S. § 216B.02, as it may be amended from time to time, a municipality, a municipal gas or power agency organized under M.S. Chapters 453 and 453A, as they may be amended from time to time, or a cooperative electric association organized under M.S. Chapter 308A, as it may be amended from time to time, are not TELECOMMUNICATIONS RIGHT-OF-WAY USERS except to the extent the entity is offering wireless service.
TEMPORARY SURFACE. The compaction of subbase and aggregate base and replacement, in kind, of the existing pavement only to the edges of the excavation.
TRENCH. An excavation having a length that is in excess of the width of the right-of-way for the sections of roadway where the work is occurring, including a directional bore.
TWO-YEAR PROJECT PLAN. 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. 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, wire line backhaul facilities, or cables between utility poles or wireless support structures, or not otherwise immediately adjacent to, and 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, being 47 U.S.C. 521, including cable service.
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.
WIRELESS TELECOMMUNICATION FACILITY. A tangible asset used to provide wireless telecommunication or data services, including all antennas, support devices, equipment including ground equipment, associated cables, and attachments.
(Ord. 277, passed 11-13-2017)
(A) Registration required prior to work. No person shall construct, install, repair, remove, relocate, or perform any work within any right-of-way, including persons with installation and maintenance responsibilities by lease, sublease, or assignment, without first being registered pursuant to this section. The registration shall be made on an application form provided by the city and shall be accompanied by the registration fee in an amount as set by Council from time to time. Registration, and the accompanying fee, shall be required on an annual basis. A service or utility service operating under a franchise with the city shall register pursuant to this section, but need not provide the registration information required by division (C) below if the information has been submitted pursuant to the franchise agreement. A person who pays a franchise fee to the city in accordance with a franchise agreement shall be exempt from payment of a registration fee. Nothing in this section relieves a person from complying with the provisions of M.S. Chapter 216D, the Gopher State One-Call Law, as it may be amended from time to time.
(B) Exceptions. The following are not subject to the requirements of this section, but may be subject to regulation by other sections of this chapter:
(1) Persons planting or maintaining boulevard surface plantings or gardens;
(2) Persons erecting fences, mail boxes, installing driveways, sidewalk, curb and gutter, or parking lots;
(3) Persons engaged in snow removal activities;
(4) Persons installing street furnishings, bus stop benches, and shelters;
(5) Persons installing irrigation systems;
(6) City other than sewer and water utilities; and
(7) Persons acting as agents, contractors, or subcontractors for a registrant who has properly registered in accordance with this section.
(C) Registration information. The registrant shall provide, at the time of registration and within 15 days following the date the registrant becomes aware of any change thereto, the following information:
(1) Registrant’s name, address, telephone number, facsimile number, and Gopher State One- Call registration certificate number, if required by state law;
(2) Name, street address, e-mail address, telephone number, and facsimile number of the person responsible for fulfilling the obligations of the registrant;
(3) A certificate of insurance from a company licensed to do business in the state providing minimum coverage in the following amounts:
(a) General liability.
1. Public liability, including premises, products, and complete operations:
a. Bodily injury liability: $1,000,000 each person , $3,000,000 each occurrence; and
b. Property damage liability: $3,000,000 each occurrence;
2. In lieu of divisions (C)(3)(a)1.a. and (C)(3)(a)1.b. above, bodily injury and property damage combined: $3,000,000 single limit.
(b) Comprehensive.
1. Automobile liability insurance, including owned, non-owned, and hired vehicles:
a. Bodily injury liability: $1,000,000 each person, $3,000,000 each occurrence; and
b. Property damage liability; $3,000,000 each occurrence.
2. In lieu of divisions (C)(3)(b)1.a. and (C)(3)(b)2.b. above, bodily injury and property damage combined: $3,000,000 single limit.
(c) Certificate. The certificate shall verify that the registrant is insured against claims for personal injury, including death, as well as claims for property damage arising out of the use and occupancy of the right-of-way by the registrant, his or her officers, agents, employees, and permit holders; and placement and use of equipment or facilities in the right-of-way by the registrant, his or her officers, agents, employees, and permit holders, including, but not limited to, protection against liability arising from completed operations, damage of underground equipment, and collapse of property. The certificate shall also name 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 coverages. The certificate shall require that the Planner be notified 30 days prior to cancellation of the policy;
(4) Twenty-four hour emergency number;
(5) An acknowledgment by the registrant of the indemnification pursuant to § 71.21 of this chapter;
(6) Certificate of authority to do business in the state and in the city, if applicable;
(7) A copy of the person’s order granting a certificate of authority from the State 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 the authorization or approval from the Commission or other state or federal agency; and
(8) The additional information as the city may require.
(Ord. 277, passed 11-13-2017)
(A) 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 Planner. The plan shall be submitted using a format designated by the Planner, and shall contain the information determined by the Planner to be necessary to facilitate coordination and reduction in the frequency of excavations and obstructions of rights-of-way. If by December 1 of any year the registrant has not developed his or her construction and maintenance information for the coming year, the registrant shall file the information with the city as soon thereafter as it is developed.
(B) The plan shall include, but not be limited to, the following information:
(1) To the extent known, the locations and the estimated beginning and ending dates of all projects to be commenced during the next calendar year; 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.
(C) The Planner will have available for inspection, in his or her office, a composite list of all projects of which the Planner has been informed in the annual plans. All registrants are responsible for keeping himself or herself informed of the current status of this list. Each registrant must notify the Planner immediately of any change in his or her list of projects.
(Ord. 277, passed 11-13-2017)
(A) General. Except as otherwise provided in this chapter, no registrant may obstruct or excavate any right-of-way, or install or place facilities in the right-of-way, without first having been issued the appropriate permit pursuant to this section and conspicuously displayed, or otherwise available, at all times at the indicated work site, and shall be available for inspection by the city.
(B) Excavation permit. An excavation permit is required by the registrant to excavate that part of the right-of-way described in each permit, and to hinder free and open passage over the specified portion of the right-of-way by placing facilities therein, to the extent and for the duration specified in the permit.
(C) Obstruction/aerial/interduct permit. An obstruction/aerial/interduct permit is required by a registrant to hinder free and open passage over the specified portion of right-of-way by placing equipment described therein within the right-of-way, to the extent and for the duration specified in the permit. An obstruction/aerial/interduct permit is not required if a registrant has been issued a valid excavation permit for the same project.
(D) Pole attachment permit. A pole attachment permit is required by the registrant in order to attach a wireless telecommunication facility to an existing public utility structure in the public right-of-way. A pole attachment permit is not required if a registrant has been issued a valid excavation permit for the same project.
(E) Permit reprocessing fee. No registrant may excavate or obstruct the right-of-way beyond the date or dates specified in the permit, or do any work outside the area specified in the permit unless:
(1) The registrant makes a supplementary application for an extension of the permit, or a new permit before expiration of the initial permit, and pays the applicable permit fee in an amount as set by Council from time to time; and/or
(2) Is granted a new permit or an extension of the initial permit by the Planner.
(F) 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 the permit shall remain in effect for the length of time the facility is in use, unless lawfully revoked. Verbal extensions of the initial permit may be granted by the Planner for a period of no greater than 48 hours, or for emergencies, without additional fee.
(G) Diligence in performance work; delay penalty. Work shall progress in an expeditious manner as permitted by weather conditions until completion in order to avoid unnecessary inconvenience to the public. If the work is not done in an expeditious manner, the city may, after 72-hour notice to the permit holder, fill the excavation or repair the street. The holder, upon demand made by the city, shall pay the entire cost of the work. In accordance with Minn. Rules part 7819.1000, subpart 3, and notwithstanding divisions (B) and (C) above, the city shall establish and impose a delay penalty where excavating or obstruction work in the right-of-way is not completed within the time specified in the permit, and no supplementary application has been made for a permit extension or a new permit prior to the expiration date of the permit where the delays in right-of-way excavation, obstruction, patching, or restoration are unreasonable. The delay penalty shall be established from time to time by City Council resolution. A delay penalty will not be imposed for delays due to force majeure, including inclement weather, civil strife, acts of God, or other circumstances beyond the control of the applicant.
(H) Application and fee. An application for a right-of-way permit shall be made on forms provided by the city and shall be accompanied by the fees in an amount as set by Council from time to time, and which are established to reimburse the city for city costs. A person who pays a franchise fee to the city in accordance with a franchise agreement shall be exempt from the payment of permit fees. All applications must be in the name of the registrant. No joint applications will be accepted. If the work is to be performed by an agent, contractor, or subcontractor on behalf of the registrant, the application shall be signed by the registrant. The application shall also be accompanied by the following:
(1) Scaled drawings showing the location of all facilities and improvements proposed by the applicant. The applicant will be requested to submit, in English measurement, two paper copies at 50 scale plans, and one copy in AutoCAD format with X, Y, Z dimensions to one-foot accuracy electronic plan. The plans must be dimensional and show existing utilities, curb and gutter, sidewalks, bikeways, signal poles, driveways, boxes, and structures. If the applicant chooses to submit this data in a different format, he or she shall be responsible for the additional payment of the data conversion fee set forth in Res. 11-7A;
(2) A description of the methods that will be used for installation;
(3) A proposed schedule for all work;
(4) The location of any public streets, sidewalks, or alleys that will be temporarily closed to traffic during the work;
(5) A description of methods for restoring any public improvements disrupted by the work; and
(6) Any other information reasonably required by the city.
(I) Security. A performance bond, letter of credit, or cash deposit in an amount determined by the Planner shall be required from each applicant. The Planner shall have the right to determine the form of security that must be filed. The applicant, at his or her option, may post security sufficient to cover all projects contemplated for a one-year period. Any performance bond or letter of credit must be approved by the City Attorney as to form. Security required pursuant to this section shall be conditioned that the holder will perform the work in accordance with this chapter and applicable regulations, will pay to the city any costs incurred by the city in performing work pursuant to this chapter, and will indemnify and save the city and its officers, agents, and employees harmless against any and all claims, judgment, or other costs arising from any excavation and other work covered by the right-of-way permit, or by reason of any accident or injury to persons or property through the fault of the permit holder, either in improperly guarding the excavation or for any other injury resulting from the negligence or willful actions of the permit holder. The bond, letter of credit, or cash deposit shall be released by the city upon completion of the work and compliance with all conditions imposed by the right-of-way permit, specifically including full compliance with § 71.15(A) of this chapter. For permits allowing excavations within public streets, the bond, letter of credit, or cash deposit shall be held for a period of not less than 24 months to guarantee adequacy of all restoration work.
(J) Permit issuances; conditions. The Planner shall grant a right-of-way permit upon finding the work will comply with the requirements of this chapter. The Planner may impose reasonable conditions upon the issuance of the permit and the performance of the applicant thereunder to protect the public health, safety, and welfare, to ensure the structural integrity of the right-of-way, to ensure completion of restoration of the right-of-way within a specified period, to protect the property and safety of other users of the right-of-way, and to minimize the disruption and inconvenience to the traveling public. No right-of-way permit shall be issued to any person who has failed to register pursuant to § 71.03 of this chapter.
(K) Small wireless facility conditions. In addition to division (F) above, 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 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):
(1) 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 the conditions or requirements as may be imposed in the applicable permit;
(2) No wireless facility may extend more than ten feet above its wireless support structure;
(3) Where an applicant proposes to install a new wireless support structure in the right-of-way, the city may impose separation requirements between the structure and any existing wireless support structure, or other facilities in and around the right-of-way;
(4) 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 the structure; and
(5) Where an applicant proposes to replace a wireless support structure, the city may impose reasonable restocking, replacement, or relocation requirements on the replacement of the structure.
(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:
(1) An amount as set by Council from time to time per year for rent to collocate on the city structure;
(2) Twenty-five dollars per year for maintenance associated with the collocation;
(3) A monthly fee for electrical service as follows:
(a) Seventy-three dollars per radio node less than, or equal to, 100 maximum watts;
(b) One-hundred and eighty-two dollars per radio node over 100 maximum watts; and
(c) The actual costs of electricity, if the actual cost exceed the foregoing.
(4) 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) Actions on small wireless facility permit applications.
(1) The city shall approve or deny a small wireless facility permit application within 90 days after filing of the 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) (a) 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.
(b) 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) 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 30 small wireless facilities within a seven-day period. In that case, the city may extend the deadline for all the applications by 30 days by informing the affected applicants, in writing, of the extension;
(b) 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; or
(c) The city and a small wireless facility applicant agrees, in writing, to toll the review period.
(N) Excavation permit fee. The city shall impose an excavation permit fee in an amount sufficient to record management costs and degradation costs, if applicable.
(O) Obstruction permit fee. The city shall impose an obstruction permit fee in an amount sufficient to recover management costs.
(P) 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.
(Q) Exceptions. No permit shall be required for the following:
(1) Surface landscaping work;
(2) Driveways, sidewalks, curb and gutter, and parking lots, street furnishings, bus stop benches, shelters, posts, and pillars;
(3) Snow removal activities;
(4) Irrigation systems, provided that the system does not connect directly to water mains in the right-of-way;
(5) Activities of the city except sanitary sewer and water utilities; and
(6) Routine obstruction of the right-of-way for less than eight hours in total duration, including, without limitation, switching, fuse replacement, transformer replacement, line guard placement, leak surveys, anode installations, and inspections.
(Ord. 277, passed 11-13-2017)
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