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(A) 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.
(B) Accordingly, the city hereby enacts this subchapter relating to right-of-way permits and administration. This subchapter 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 subchapter, persons excavating and obstructing the rights-of-way will bear financial responsibility for their work. Finally, this subchapter provides for recovery of out-of-pocket and projected costs from persons using the public rights-of-way.
(C) This subchapter 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 (the “Act”) and the other laws governing applicable rights of the city and users of the right-of-way. This subchapter shall also be interpreted consistent with Minn. Rules 7819.0050 through 7819.9950 where possible. To the extent any provision of this subchapter 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 subchapter 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.
(Ord. 7517, passed 10-20-2009)
For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. References hereafter to “sections” are, unless otherwise specified, references to sections of this subchapter.
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 Lakeland, Minnesota. For purposes of § 96.27, CITY means its elected officials, officers, employees and agents.
COMMISSION. The State Public Utilities Commission.
CONGESTED RIGHT-OF-WAY. A crowded condition in the subsurface of the public right-of-way that occurs when the maximum lateral spacing between existing underground facilities does not allow for construction of new underground facilities without using hand digging to expose the existing lateral facilities in conformance with M.S. § 216D.04, Subd. 3, over a continuous length in excess of 500 feet.
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.
DEGRADATION. A decrease in the useful life of the right-of-way caused by excavation in or disturbance of the right-of-way, resulting in the need to reconstruct such right-of-way earlier than would be required if the excavation or disturbance did not occur.
DEGRADATION COST. Subject to Minn. Rules 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 shown in plates one to 13, set forth in Minn. Rules 7819.9900 to 7819.9950.
DEGRADATION FEE. The estimated fee established at the time of permitting by the city to recover costs associated with the decrease in the useful life of the right-of-way caused by the excavation, and which equals the degradation cost.
DELAY PENALTY. The penalty imposed as a result of unreasonable delays in right-of-way excavation, obstruction, patching, or restoration as established by permit.
DEPARTMENT. The Department of Public Works of the City.
DEPARTMENT INSPECTOR. Any person authorized by the city to carry out inspections related to the provisions of this subchapter.
DIRECTOR. The Director of the Department of Public Works of the City, or her or his designee.
EMERGENCY. A condition that:
(1) Poses a danger to life or health, or of a significant loss of property; or
(2) Requires immediate repair or replacement of facilities in order to restore service to a customer.
EQUIPMENT. Any tangible asset used to install, repair, or maintain facilities in any right-of-way.
EXCAVATE. To dig into or in any way remove or physically disturb or penetrate any part of a right-of-way.
EXCAVATION PERMIT. The permit which, pursuant to this subchapter, must be obtained before a person may excavate in a right-of-way. An EXCAVATION PERMIT allows the holder to excavate that part of the right-of-way described in such permit.
EXCAVATION PERMIT FEE. Money paid to the city by an applicant to cover the costs as provided in § 96.11.
FACILITY or FACILITIES. Any tangible asset in the right-of-way required to provide utility service.
FIVE-YEAR PROJECT PLAN. Shows projects adopted by the city for construction within the next five years.
HIGH DENSITY CORRIDOR. A designated portion of the public right-of-way within which telecommunications right-of-way users having multiple and competing facilities may be required to build and install facilities in a common conduit system or other common structure.
HOLE. An excavation in the pavement, with the excavation having a length less than the width of the pavement.
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 subchapter.
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 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 permits. MANAGEMENT COSTS do not include payment by a telecommunications right-of-way user for the use of the right-of-way, the fees and cost of litigation relating to the interpretation of Minnesota Session Laws 1997, Chapter 123; 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 § 96.30.
OBSTRUCT. To place any tangible object in a right-of-way so as to hinder free and open passage over that or any part of the right-of-way.
OBSTRUCTION PERMIT. The permit which, pursuant to this subchapter, must be obtained before a person may obstruct a right-of-way, allowing the holder to hinder free and open passage over the specified portion of that right-of-way, for the duration specified therein.
OBSTRUCTION PERMIT FEE. Money paid to the city by a permittee to cover the costs as provided in § 96.11.
PATCH or PATCHING. A method of pavement replacement that is temporary in nature. A PATCH consists of:
(1) The compaction of the sub-base and aggregate base; and
(2) The replacement, in kind, of the existing pavement for a minimum of two feet beyond the edges of the excavation in all directions. A PATCH is considered full restoration only when the pavement is included in the city’s five-year project plan.
PAVEMENT. Any type of improved surface that is within the public right-of-way and that is paved or otherwise constructed with bituminous, concrete, aggregate, or gravel.
PERMIT. Has the meaning given “right-of-way permit” in M.S. § 237.162.
PERMITTEE. Any person to whom a permit to excavate or obstruct a right-of-way has been granted by the city under this subchapter.
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.
PROBATION. The status of a person that has not complied with the conditions of this subchapter.
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. The area on, below, or above a public roadway, highway, street, cartway, bicycle lane or public sidewalk in which the city has an interest, including other dedicated rights-of-way for travel purposes and utility easements of the city. A right-of-way does not include the airwaves above a right-of-way with regard to cellular or other nonwire telecommunications or broadcast service.
REGISTRANT. Any person who:
(1) Has or seeks to have its equipment or facilities located in any right-of-way; or
(2) In any way occupies or uses, or seeks to occupy or use, the right-of-way or place its facilities or equipment in the right-of-way.
RESTORE or RESTORATION. The process by which an excavated right-of-way and surrounding area, including pavement and foundation, is returned to the same condition and life expectancy that existed before excavation.
RESTORATION COST. The amount of money paid to the city by a permittee to achieve the level of restoration according to plates one to 13 of Minnesota Public Utilities Commission rules.
RIGHT-OF-WAY PERMIT. Either the excavation permit or the obstruction permit, or both, depending on the context, required by this subchapter.
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.
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 systems as defined in M.S. Ch. 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. Ch. 308A; and
(6) Water, and sewer, including service laterals, steam, cooling or heating services.
SERVICE LATERAL. An underground facility that is used to transmit, distribute, or furnish gas, electricity, communications, or water from a common source to an end-use customer. A SERVICE LATERAL is also an underground facility that is used in the removal of wastewater from a customer’s premises.
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.
TELECOMMUNICATION 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 transporting telecommunication or other voice or data information. For purposes of this subchapter, a cable communication system defined and regulated under M.S. Ch. 238, and telecommunication activities related to providing natural gas or electric energy services whether provided by a public utility as defined in M.S. § 216B.02, a municipality, a municipal gas or power agency organized under M.S. Chs. 453 and 453A, or a cooperative electric association organized under M.S. Ch. 308A, are not TELECOMMUNICATIONS RIGHT-OF-WAY USERS for purposes of this subchapter.
TEMPORARY SURFACE. The compaction of sub-base and aggregate base and replacement, in kind, of the existing pavement only to the edges of the excavation.
TRENCH. An excavation in the pavement, with the excavation having a length equal to or greater than the width of the pavement.
(Ord. 7517, passed 10-20-2009)
(A) Registration. Each person who occupies or uses, or seeks to occupy or use, the right-of-way or place any equipment or facilities in or on the right-of-way, including persons with installation and maintenance responsibilities by lease, sublease or assignment, must register with the city. Registration will consist of providing application information and paying a registration fee.
(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. Nothing herein shall be construed to repeal or amend the provisions of a city ordinance permitting persons to plant or maintain boulevard plantings or gardens in the area of the right-of-way between their property and the street curb. Persons planting or maintaining boulevard plantings or gardens shall not be deemed to use or occupy the right-of-way, and shall not be required to obtain any permits or satisfy any other requirements for planting or maintaining such boulevard plantings or gardens under this subchapter. However, nothing herein relieves a person from complying with the provisions of the M.S. Ch. 216D, Gopher One Call Law.
(Ord. 7517, passed 10-20-2009) Penalty, see § 10.99
(A) Information required. 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 e-mail address, if applicable, and telephone and facsimile numbers of a local representative. The local representative or designee shall be available at all times. Current 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:
1. Use and occupancy of the right-of-way by the registrant, its officers, agents, employees and permittees; and
2. 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 subchapter.
(4) The city may require a copy of the actual insurance policies.
(5) If the person is a corporation, a copy of the certificate is required to be filed under M.S. § 300.06 as recorded and certified to by the Secretary of State.
(6) A copy of the person’s order granting a certificate of authority from the Minnesota Public Utilities Commission or other applicable state or federal agency, where the person is lawfully required to have such certificate from said commission or other state or federal agency.
(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.
(Ord. 7517, passed 10-20-2009)
(A) (1) Operations. Each registrant shall, at the time of registration and by December 1 of each year, file a construction and major maintenance plan for underground facilities with the city. Such plan shall be submitted using a format designated by the city and shall contain the information determined by the city to be necessary to facilitate the coordination and reduction in the frequency of excavations and obstructions of rights-of-way . The plan shall include, but not be limited to, the following information:
(a) The locations and the estimated beginning and ending dates of all projects to be commenced during the next calendar year (in this section, a “next-year project”); and
(b) To the extent known, the tentative locations and estimated beginning and ending dates for all projects contemplated for the five years following the next calendar year (in this section, a “five-year project”).
(2) The term “project” in this section shall include both next-year projects and five-year projects.
(3) By January 1 of each year, the city will have available for inspection in the city’s office a composite list of all projects of which the city has been informed of the annual plans. All registrants are responsible for keeping themselves informed of the current status of this list.
(4) Thereafter, by February 1, each registrant may change any project in its list of next-year projects, and must notify the city and all other registrants of all such changes in the list. Notwithstanding the foregoing, a registrant may at any time join in a next-year project of another registrant listed by the other registrant.
(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.
(Ord. 7517, passed 10-20-2009)
(A) Permit required. Except as otherwise provided in this code, no person may obstruct or excavate any 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 a registrant to excavate that part of the right-of-way described in such permit and to hinder free and open passage over the specified portion of the right-of-way by placing facilities described therein, to the extent and for the duration specified therein.
(2) Obstruction permit. An obstruction permit is required by a registrant to hinder free and open passage over the specified portion of right-of-way by placing equipment described therein on the right-of-way, to the extent and for the duration specified therein. An obstruction permit is not required if a person already possesses a valid excavation permit for the same project.
(B) Permit extensions. No person may excavate or obstruct the right-of-way beyond the date or dates specified in the permit unless:
(1) Such person makes a supplementary application for another right-of-way permit before the expiration of the initial permit; and
(2) A new permit or permit extension is granted.
(C) Delay penalty. In accordance with Minn. Rules 7819.1000, Subd. 3 and notwithstanding division (B) of this Section, the city shall establish and impose a delay penalty for unreasonable delays in right-of-way excavation, obstruction, patching, or restoration. The delay penalty shall be established from time to time by City Council resolution.
(D) Permit display. Permits issued under this subchapter shall be conspicuously displayed or otherwise available at all times at the indicated work site and shall be available for inspection by the city.
(Ord. 7517, passed 10-20-2009)
Application for a permit is made to the city. Right-of-way permit applications shall contain, and will be considered complete only upon compliance with, the requirements of the following provisions:
(A) Registration with the city pursuant to this subchapter;
(B) Submission of a completed right-of-way permit application form, including all required attachments, and scaled drawings showing the location and area of the proposed project and the location of all known existing and proposed facilities;
(C) Payment of money due the city for:
(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; and
(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 cash deposit or letter of credit 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.
(Ord. 7517, passed 10-20-2009)
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