A. Permits Required: Except as otherwise provided in this Code, no person may excavate, place a utility service, install or place facilities, or obstruct any right-of-way without first having obtained the appropriate right-of-way permit from the Director 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.
3. Small Wireless Facility Permit: A small wireless facility permit is required by a registrant to erect or install a wireless support structure, to collocate a small wireless facility, or to otherwise install a small wireless facility in the specified portion of the right-of-way, to the extent specified therein, provided that such permit shall remain in effect for the length of time the facility is in use, unless lawfully revoked. (Ord. 2019-07, 4-8-2019)
B. Application For Permits; Compliance With Certain Requirements: Application for a permit is made to the Director. Right-of-way permit applications shall contain, and will be considered complete, only upon compliance with the requirements of the following provisions:
1. Registration with the Director pursuant to this chapter.
2. Submission of a completed permit application form, including all required attachments, and sealed drawings showing the location and area of the proposed project and the location of all known existing and proposed facilities.
3. Payment of money due the City for:
a. Permit fees, estimated restoration costs, and other management costs.
b. Prior obstructions or excavations.
c. Any undisputed loss, damage, or expense suffered by the City because of the applicant's prior excavations or obstructions of the rights-of-way or any emergency actions taken by the City.
d. Franchise or user fees, if applicable.
4. Payment of disputed amounts due the City by posting security or depositing in an escrow account an amount equal to at least one hundred ten percent (110%) of the amount owing.
5. When an excavation permit is requested for purposes of installing additional facilities, and the posting of a construction performance bond for the additional facilities is insufficient, the posting of an additional or larger construction performance bond for the additional facilities may be required. (Prior Code § 6-6-9)
C. Small Wireless Facility Permit Applications:
1. Deadline For Action: The City shall approve or deny a small wireless facility permit application within ninety (90) days after receiving a complete application. The small wireless facility permit, and any associated encroachment or building permit shall be deemed approved if the City fails to approve or deny the application within the review periods established in this section.
2. Consolidated Applications:
a. An applicant may file a consolidated small wireless facility permit application addressing the proposed collocation of up to fifteen (15) small wireless facilities, or a greater number if agreed by the City, provided that all small wireless facilities in an application:
(1) Are located within a two (2) 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. Tolling Of Deadline For Action: The ninety (90) day deadline for action may be tolled if:
a. The City receives applications within a single seven-day period from one or more applicants seeking approval of permits for more than thirty (30) small wireless facilities. In such case, the City may extend the ninety (90) day deadline for all such applications by an additional thirty (30) days by informing the affected applicants in writing of such extension.
b. The applicant fails to submit all required documents or information and the City provides written notice of incompleteness to the applicant within thirty (30) business days of receipt of the application, clearly and specifically delineating all missing documents or information. Information delineated in the notice is limited to documents or information publicly required as of the date of application and reasonably related to the City's determination whether the proposed equipment falls within the definition of a small wireless facility and whether the proposed deployment satisfies all health, safety, and welfare regulations applicable to the small wireless facility permit request. Upon applicant's submittal of additional information in response to a notice of incompleteness, the City has ten (10) days to notify the applicant in writing of any information requested in the initial notice of incompleteness that is still missing. Second or subsequent notices of incompleteness may not specify documents or information that were delineated in the original notice of incompleteness. Requests for information not requested in the initial notice of incompleteness do not toll the ninety (90) day deadline for action.
c. The City and applicant may agree in writing to toll the review period.
D. Issuance Of Permit; Conditions:
1. Issuance Of Permit: If the applicant has satisfied the requirements of this chapter, the Director shall issue a permit.
2. Conditions: The Director 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 and future use.
a. Installation, placement, location and relocation of facilities shall comply with all Federal, State and local laws.
b. Installation of all underground utilities shall be in accordance with the underground utilities regulations set forth in this section and all other applicable Federal, State and local laws.
c. Precautions shall be taken as are necessary to avoid creating unsafe or unsanitary conditions.
d. Project operations and work shall be conducted in a manner so as to ensure the least obstruction to and interference with present and continued use of the right-of-way.
e. Precautions shall be taken to assure the safety of the general public, employees, invitees and those who require access to abutting property, including appropriate signage.
f. The permittee shall notify abutting property owners with a forty eight (48) hour written notice prior to commencement of any permitted project.
g. The permittee involved in underground projects shall register with Gopher State One Call and comply with the requirements thereof.
h. The permittee shall comply with the "Minnesota Manual On Uniform Traffic Control Devices" (MMUTCD) at all times during any project work and shall protect and identify excavations and work operations with barricade flags in the daylight hours and by warning lights at dusk and night.
i. The permittee shall comply with all conditions of the permit.
j. When any trail, sidewalk or driveway has been cut, City approved signage must be kept in place and maintained until restoration is complete.
k. The permittee shall provide proper trench protection as required by OSHA to prevent any cave in; injury to property or persons; or enlargement of the excavation.
l. Excavations, trenches and jacking pits off the roadway surface area or adjacent to the roadway or curbing shall be sheathed and braced. When unattended, all excavations, trenches and jacking pits shall be secured and protected to prevent surface drainage and access by unauthorized persons.
m. The permittee shall protect the root growth of trees and shrubbery located within the right-of-way and adjacent thereto.
n. The permittee shall coordinate project work and installation of facilities in collocations involving other right-of-way users.
o. The permittee shall maintain access to all properties and cross streets during project work, including emergency vehicle access.
p. The permittee shall physically locate property lines abutting the project work. The permittee shall replace, with the services of a Minnesota licensed surveyor, any property corners or monuments disturbed as a result of the project.
q. The permittee shall complete restoration of the right-of-way in conformance with this section.
r. No permittee, or any agent, subcontractor or employee thereof, shall use lugs (steel tracks) on any roadway surfaces.
s. The permittee shall remove daily, or as required by the City, all dirt or debris from sidewalks, trails, public and private roadway surfaces and curbs and gutters during project work.
t. The permittee shall obtain all other necessary permits, licenses and approvals, pay all required fees therefor and comply with all requirements of local, State and Federal laws.
u. The permittee shall not do any work outside the project area as specified in the permit.
v. The permittee shall conduct a public informational meeting for all major projects as deemed necessary by the City.
w. In new subdivisions in which public utilities have been constructed, permit applications will not be accepted for review prior to construction plan completion by the subdivider's engineer and the mapping requirements specified in section 8-6-14 of this chapter have been satisfied. Construction plans shall be submitted to the small utility companies by the subdivider.
x. Trenchless excavation/directional boring is prohibited more than forty eight inches (48") below grade unless the City Engineer finds as built record drawings indicate that there are no existing utilities in the vicinity that could be impacted.
3. Small Wireless Facility Conditions:
a. Additional Conditions: In addition to subsection D2 of this section, the erection or installation of a wireless support structure, the collocation of a small wireless facility, or other installation of a small wireless facility in the right-of-way, shall be subject to the following conditions:
(1) Collocation Specifications: 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) Height: No new wireless support structure installed within the right-of-way shall exceed fifty feet (50') above ground level 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 wireless support structure that replaces an existing wireless support structure in the public right-of-way that is greater than fifty feet (50') above ground level in height may be placed at the height of the existing wireless support structure, subject to such conditions or requirements as may be imposed in the applicable permit.
(3) Limitations: No wireless facility constructed in the right- of-way after April 8, 2019 may extend more than ten feet (10') above a wireless support structure existing on April 8, 2019.
(4) New Structure Placement: Where an applicant proposes to install a new wireless support structure in the right-of-way, the new wireless support structure shall not be located within six hundred feet (600') of any existing wireless support structure in and around the right-of-way.
(5) Wireless Support Structures:
(A) All new wireless support structures shall be of a monopole design not exceeding eighteen inches (18") in diameter.
(B) All replacement wireless support structure and equipment shall match the surrounding poles in structure design, materials, and color.
(6) Color: All of a small wireless facility that is affixed to a wireless support structure shall be the same or similar color of the wireless support structure as practical.
(7) Lines Internally Stored: All electric, telephone, cable, fiber, or other utility lines necessary to operate a small wireless facility shall be installed within the applicable wireless support structure where practical and shall not be coiled or rolled up and externally attached to the wireless support structure or equipment boxes.
(8) Collocation On Decorative Structures: Where an applicant proposes collocation on a decorative wireless support structure, sign, or other structure not intended to support small wireless facilities, the City may impose reasonable requirements to accommodate the particular design, appearance, or intended purpose of such structure.
(9) Replacing Wireless Support Structures: 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.
b. Small Wireless Facility Agreement:
(1) 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 applicant has executed a standard small wireless facility collocation agreement with the City. The standard collocation agreement may require payment of the following set forth in section 3-1-2 of this Code:
(A) Management costs;
(B) Annual rent on the City structure;
(C) An annual fee for maintenance associated with the collocation;
(D) Costs incurred for electrical service.
(2) 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.
E. Denial Of Permit:
1. The Director may deny a permit for failure to meet the requirements and conditions of this chapter or if the Director determines that the denial is necessary to protect the health, safety, and welfare or when necessary to protect the right-of-way and its current and future use, and:
a. The City may deny a permit if the utility has failed to comply with previous permit conditions.
b. The City may withhold issuance of a permit until conditions of previous permits are complied with.
2. The denial of a permit must be made in writing and must document the basis for the denial. The City must notify the applicant in writing within three (3) business days of the decision to deny a permit.
3. If an application is denied, the applicant may address the reasons for denial identified by the City and resubmit its application. If the application is resubmitted within thirty (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 thirty (30) days after submission.
F. Permit Fees:
1. Fees Established:
a. Excavation Permit: The excavation permit fee shall be established in section 3-1-2 of this Code in an amount sufficient to recover the following costs:
(1) The City management costs.
(2) Degradation costs, if applicable.
b. Obstruction Permit:
(1) The obstruction permit fee shall be established in section 3-1-2 of this Code in an amount sufficient to recover the following costs:
(A) The City management costs.
(B) Degradation costs, if applicable.
(C) Use of the limited area within the public right-of-way.
(2) In addition to the obstruction permit fee, the applicant shall provide for securities as set forth in section 3-1-2 of this Code in an amount and form determined by the Director to guarantee restoration or repair of the public right-of-way in compliance with this chapter.
c. Small Wireless Facility Permit Fee: The City shall impose a small wireless facility permit fee for the placement of small wireless facilities and wireless support structures in the public right-of-way 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. Cost Of Initial Engineering Survey And Preparatory Construction Work Associated With Collocation: Any initial engineering survey and preparatory construction work associated with collocation must be paid by the cost causer in the form of a onetime, nonrecurring, commercially reasonable, nondiscriminatory, and competitively neutral charge to recover costs associated with a proposed attachment.
2. Payment Of Permit Fees: No excavation permit, obstruction permit, or small wireless facility permit shall be issued without payment of the respective excavation, obstruction, or small wireless facility permit fees. The City may allow the applicant to pay such fees within thirty (30) days of billing. (Ord. 2019-07, 4-8-2019)
3. Nonrefundable Fees: Permit fees that were paid for a permit that the Director has revoked for a breach as stated in subsection K of this section are not refundable. (Prior Code § 6-6-11; amd. Ord. 2019-07, 4-8-2019)
G. Joint Applications:
1. Registrants may jointly apply for permits to excavate or obstruct the right-of-way at the same place and time.
2. Registrants who join in a scheduled obstruction or excavation performed by the City, whether or not it is a joint application by two (2) or more registrants or a single application, are not required to pay the obstruction and degradation portions of the permit fee.
3. 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 of excavation permit fee. Registrants must agree among themselves as to the portion each will pay and indicate the same on their applications. (Prior Code § 6-6-13; amd. Ord. 2019-07, 4-8-2019)
H. Supplementary Applications:
1. Limitation On Area: A right-of-way permit is valid only for the area of the right-of-way specified in the permit. No permittee may do any work outside the area specified in the permit, except as provided herein. Any permittee which determines that an area greater than that specified in the permit must be obstructed or excavated must, before working in that greater area: a) make application for a permit extension and pay any additional fees required thereby; and b) be granted a new permit or permit extension.
2. Limitation On Dates: A right-of-way permit is valid only for the dates specified in the permit. No permittee may begin its work before the permit start date or, except as provided herein, continue working after the end date. If a permittee does not finish the work by the permit end date, 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 done before the permit end date. (Prior Code § 6-6-14; amd. Ord. 2019-07, 4-8-2019)
I. Display Of Permit: 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 Director.
J. Permit Extensions; Delay Penalty:
1. No person may excavate or obstruct the right-of-way beyond the date or dates specified in the permit unless such person: a) makes a supplementary application for another right-of-way permit before the expiration of the initial permit; and b) a new permit or permit extension is granted.
2. Notwithstanding subsection J1 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. (Prior Code § 6-6-8; amd. Ord. 2019-07, 4-8-2019)
K. Revocation Of Permits:
1. Substantial Breach: The City reserves its right, as provided herein, to revoke any right-of-way permit, without a fee refund, if there is a substantial breach of the terms and conditions of any statute, ordinance, rule or regulation, or any material condition of the permit. A substantial breach by the permittee shall include, but shall not be limited to, the following:
a. The violation of any material provision of the right-of-way permit.
b. An evasion or attempt to evade any material provision of the right-of-way permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the City or its citizens.
c. Any material misrepresentation of fact in the application for a right-of-way permit.
d. The failure to complete the work in a timely manner, unless a permit extension is obtained or unless the failure to complete work is due to reasons beyond the permittee's control.
e. The failure to correct, in a timely manner, work that does not conform to a condition indicated on an order issued pursuant to section 8-6-11 of this chapter.
2. Notice Of Breach: If the Director 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 Director 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 Director, at his or her discretion, to place additional or revised conditions on the permit to mitigate and remedy the breach.
3. Response To Notice: Within twenty four (24) hours of receiving notification of the breach, the permittee shall provide the Director with a plan, acceptable to the Director, that will cure the breach. The permittee's failure to so contact the Director, or the permittee's failure to submit an acceptable plan, or the permittee's failure to reasonably implement the approved plan shall be cause for immediate revocation of the permit. Further, the permittee's failure to so contact the Director, or the permittee's failure to submit an acceptable plan, or the permittee's failure to reasonably implement the approved plan shall automatically place the permittee on probation for one full year.
4. Cause For Probation: From time to time, the Director may establish a list of conditions of the permit, which if breached, will automatically place the permittee on probation for one full year, such as, but not limited to, working out of the allotted time period or working on the right-of-way grossly outside of the permit authorization.
5. Automatic Revocation: If a permittee, while on probation, commits a breach as outlined in this subsection K, the permittee's permit will automatically be revoked, and the permittee will not be allowed further permits for one full year, except for emergency repairs.
6. Reimbursement Of City Costs: If a permit is revoked, the permittee shall also reimburse the City for the City's reasonable costs, including restoration costs and the cost of collection and reasonable attorney fees incurred in connection with such revocation. (Prior Code § 6-6-21; amd. Ord. 2019-07, 4-8-2019)