(A) Election to manage the public right-of-way. In accordance with M.S. § 237.163 subd. (b), the city hereby elects to manage rights-of way within its jurisdiction.
(B) Definitions. Except as provided below, the definitions in Minn. Rules 7819.0100 are hereby adopted by reference and are incorporated into this section as if set out in full.
FACILITY. Any tangible asset associated with the provision of utility service that is or will be located in the public right-of-way.
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.
PUBLIC RIGHT-OF-WAY. The area on, below, or above a public roadway, highway, street, alley, cartway, bicycle lane, or public sidewalk which the city maintains or otherwise has an interest, and other easements dedicated to the public or to use for utility service. The PUBLIC RIGHT-OF-WAY does not include the airwaves with regard to non-wire telecommunications or broadcast services.
RESTORATION or RESTORE. The process by which an excavated public right-of-way and surrounding area, including pavement and foundation, is returned to the same condition that existed before excavation.
UTILITY SERVICE. Includes all of the following, except any of these utility services provided by the City of Virginia Public Works Department and/or the Virginia Public Utilities:
(a) Services of a telecommunications right-of-way user, including the transporting of voice or data information;
(b) Services provided by a cable communications system as defined in M.S. Ch. 238;
(c) Telecommunications services, electric, and natural gas not provided by a public utility;
(d) Services provided by a cooperative electric association organized under M.S. Ch. 308A; and
(e) Connections to the municipal water, sewer, steam, cooling or heating services not provided by a public utility.
(C) Permit requirement.
(1) Permit required. Except as otherwise provided herein, no person may obstruct or perform work in any right-of-way, or locate facilities in any right-of-way, without first having obtained the appropriate permit from the city. The permit shall specify the location of the affected right-of-way, describe the work to be performed and facilities to be installed, and the duration of the permit. To AFFECT THE RIGHT-OF-WAY means to disturb the existing ground surface.
(2) Permit extensions. No person may obstruct or perform work in the right-of-way beyond the date specified in a permit unless a new permit or permit extension is granted.
(3) Responsible city official. The city Building Official and/or their designee is the city official charged with the initial authority and responsibility on behalf of the city, for:
(a) Granting or denying permits;
(b) Revoking permits;
(c) Determining and imposing fees under this section.
(4) Delay penalty. In accordance with Minn. Rules 7819.1000, subpart 3, the city may impose a delay penalty for unreasonable delays in work conducted in the right-of-way. The City Council shall establish the amount of the delay penalty from time to time by resolution.
(5) Permit display. Permits issued under this section shall be available for inspection at all times at the indicated work site.
(6) Exceptions. Work that is being done by, for, and directed by the city and/or the Virginia Public Utilities Commission shall not be required to obtain a permit. However, the entities must maintain all plans for construction as per M.S. § 138.17.
(D) (1) Permit applications. A permit application shall contain the following:
(2) A completed application form, including all required plans or drawings showing the location and area of the proposed project and the location of all known existing and proposed facilities, and the following:
(a) The applicant's name, Gopher One-Call registration certificate number, address and e-mail address if applicable, and telephone and facsimile numbers.
(b) 1. A certificate of insurance naming the city as an additional insured, verifying that the applicant is insured against claims for personal injury, death, or property damages associated with work in the right-of-way, and requiring 30 days’ notice to the city of cancellation or material modification of the policy.
2. Before a permit shall be granted, the permittee shall deposit with the City Clerk a policy or policies of an insurance company or companies licensed to transact business in this state insuring the permittee against loss from the liability imposed by law for damages on account of bodily injuries or death, or from damage to property resulting from the work contemplate by the permit, and agreeing to pay any judgment creditor to the extent of the amounts specified in such policy, any final judgment rendered against the insured by reason of such liability. The limit in any such insurance policy of such liability of the insurer on account of the work contemplate in the issuance of a permit shall not be less than $500,000 combined single limit, bodily injuries and property damage. The policy may not be canceled by the insurance company without first notifying the city clerk at least 30 days before the policy is canceled.
(c) General liability. Before a permit shall be delivered to any person, he or she shall deposit with the City Clerk a policy or policies of an insurance company or companies duly licensed to transact business in this state, insuring the person from any and all liability which he or she may incur as a result of bodily injuries or property damage resulting to him or her. The limit of such insurance policy shall not be less than $500,000 for bodily injuries to or death of any one person and an aggregate of $1,000,000 on account of any one accident resulting in injuries and/or death of more than one person and a total of $50,000 liability for damages to property of others arising out of any one accident.
(d) If the applicant is a corporation, a copy of the certificate required to be filed under M.S. § 300.06 as recorded and certified to by the Secretary of State.
(e) A copy of the applicant's certificate of authority from the Minnesota Public Utilities Commission, or other applicable state or federal agency, to the extent such authority is required by law.
(f) Payment of a permit fee covering the city's administrative and management costs and any associated costs such at the cost of any right-of-way restoration that the city will complete.
(E) Permit approval, denial and conditions.
(1) Denial of permit. The city may deny a permit if a completed application is not filed, if the requirements and conditions of this section are not met, or if the city determines that the denial is necessary to protect the health, safety, and welfare or to protect the right-of-way and its current use.
(2) Review. Any permit application submitted shall be reviewed and granted or denied by the City Engineer within five working days. If the City Engineer fails to take action on the application within five working days, the permit shall be deemed to be granted.
(3) Small wireless facility - deadline for action. The city shall approve or deny a small wireless facility permit application within 60 days for an existing facility and 90 days for a new facility after filing of such application. The small wireless facility permit, and any associated building permit application, shall be deemed approved if the city fails to approve or deny the application within the review periods established in this section.
(4) 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 through 216D.09 (Gopher Once Call Excavation Notice System) and Minn. Rules, Ch. 7560.
(F) Permit fees. The City Council may establish an appropriate permit fee schedule that will be available to the public. Unless otherwise agreed to in a franchise, right-of-way permit fees are separate from and in addition to franchise fees imposed on a right-of-way user.
(G) Right-of-way restoration by permittee. Unless otherwise provided in a permit, the permittee shall promptly and fully restore the right-of-way within five working days of completion of the placement of utilities, to a condition equivalent to that prior to its work. The permittee shall complete restoration according to Minn. Rules, 7819.1100, or such standards as may be specified by the city. If the pavement settles, the permittee shall pay to the city all costs associated with correcting the problem within 30 days of billing. Upon the city's request, the permittee shall post a construction performance bond in accordance with the provisions of Minn. Rules, part 7819.3000. If the permittee fails to restore the right-of-way as required, the city may exercise its rights under the construction performance bond.
(H) Right-of-way restoration by the city. The city may choose to restore the right-of-way with city forces or through contracting. If the city restores the right-of-way, the permittee shall pay the estimated costs thereof as part of the permit application fee and when restoration is completed by the city, pay the actual cost.
(I) Permit approval, denial and conditions.
(1) Notice of completion. The permittee shall notify the city in writing when the work under a permit is completed.
(2) Site inspection. City personnel and others authorized by law may inspect the work-site at any time during or upon completion of the work. At any time, the city may order immediate cessation of work that poses a threat to the life, health, safety or well-being of the public.
(J) Work done without a permit.
(1) Non-emergencies. Except in an emergency, any person who obstructs or performs work in a right-of-way without the necessary permit must immediately obtain a permit and pay double the normal permit fee as a penalty.
(2) Emergency situations. Any person with facilities in the right-of-way shall immediately notify the city of any emergency in relation to its facilities. Such person may take whatever actions are necessary to respond to the emergency. Such person shall apply for the necessary permits, pay the fees associated therewith and fulfill the rest of the requirements in this section as soon as is feasible.
(K) Revocation of permit. The city may 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. Prior to revocation, the city shall make a written demand upon the permittee to remedy such violation. Within 24 hours of receipt, the permittee shall provide a plan acceptable to the city to cure the violation or breach. The permittee's failure to timely respond or implement the approved plan shall be cause for immediate revocation of the permit.
(L) Indemnification and liability. By applying for and accepting a permit under this section, a permittee agrees to defend and indemnify the city in accordance with the provisions of Minn. Rules, part 7819.1250.
(M) Abandoned facilities. Any person who has abandoned facilities in any right-of-way shall promptly remove them if the city determines it is necessary to accommodate other right-of-way repair, excavation or construction.
(N) Appeal. A right-of-way user that: (1) Has been denied a permit; (2) Has had permit revoked; or (3) Believes that the fees imposed are invalid, may have the denial, revocation, or fee imposition reviewed upon written request by the City Council at its next regular meeting. A decision affirming the denial, revocation or fee imposition will be writing and supported by written findings.
(O) 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 necessary to protect the health, safety and welfare of the public.
(Ord. passed 7-26-2022)