SECTION 806.01 FINDINGS, PURPOSE AND INTENT:
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 enacts this Chapter relating to right of way permits and administration. This Chapter imposes reasonable regulation on the placement and maintenance of facilities and equipment currently within the city rights of way or to be placed therein at some future time. This Chapter is intended to complement the regulatory roles of state and federal agencies. Under this Chapter, persons excavating and obstructing the rights of way will bear financial responsibility for their work through the recovery of out of pocket and projected costs from persons using the public rights of way.
C. This Chapter shall be interpreted consistently with 1997 session laws, Chapter 123, substantially codified in Minnesota Statutes Sections 237.16, 237.162, 237.163, 237.79, 237.81, and 238.086 (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 rights of way. This Chapter shall also be interpreted consistent with Minnesota Rules 7819.0050 through 7819.9950, where possible. To the extent that any provision of this Chapter cannot be interpreted consistently with the Minnesota Rules, the interpretation most consistent with the act and other applicable statutory and case law is intended.
SECTION 806.02 ELECT TO MANAGE PUBLIC RIGHTS OF WAY:
Pursuant to the authority granted to the city under state and federal statutory, administrative and common law, the city elects, pursuant to Minnesota Statutes Section 237.163 subdivision 2(b), to manage rights of way within its jurisdiction.
SECTION 806.03 DEFINITIONS:
The following definitions apply in this Chapter:
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 Sunfish Lake, Minnesota. For purposes of Section 806.22 of this Chapter, "City" means its elected officials, officers, employees and agents.
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: The 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 Minnesota Statutes Section 216D.04, subdivision 3, over a continuous length in excess of five hundred feet (500').
CONSTRUCTION PERFORMANCE BOND: Any of the following forms of security provided at permittee's option:
A. Individual project bond, including a license and permit bond.
B. Cash deposit.
C. Security of a form listed or approved under Minnesota Statutes Section 15.73, subdivision 2.
D. Letter of credit, in a form acceptable to the City.
E. Self-insurance, in a form acceptable to the City.
F. 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 Minnesota Rules 7819.1100, means the cost to achieve a level of restoration as determined by the City at the time the permit is issued, not to exceed the maximum restoration shown in plates 1 to 13 set forth in Minnesota Rules parts 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 INSPECTOR: Any person authorized by the City to carry out inspections related to the provisions of this Chapter.
ENGINEER: The City Engineer or his designee.
EMERGENCY: A condition that:
A. Poses a danger to life or health, or of a significant loss of property; or
B. 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.
FACILITY OR FACILITIES: Tangible asset in the public right of way required to provide utility service.
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, with the excavation having a length less than the width of the pavement or adjacent 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 Chapter.
MANAGEMENT COSTS: The actual costs the City incurs in managing its rights of way, including such costs, if incurred, as those associated with registering applicants; issuing, processing, and verifying right of way or small wireless facility permit applications; inspecting job sites and restoration projects; maintaining, supporting, protecting, or moving user facilities during right of way work; determining the adequacy of right of way restoration; restoring work inadequately performed; mapping of as built location of facilities located in the right of way; revoking right of way or small wireless facility permits; and performing all other tasks required by this Chapter, including other costs the City may incur in managing matters described in this Chapter. 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 costs of litigation relating to the interpretation of Minnesota session laws 1997, Chapter 123; Minnesota Statutes Section 237.162 or 237.163 or any ordinance enacted under those Sections, or the City fees and costs related to appeals taken pursuant to Section 806.24 of this Chapter.
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 Chapter, 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, including a blanket permit for a period of time and for types of work specified by the Engineer, if deemed appropriate in his or her discretion.
OBSTRUCTION PERMIT FEE: Money paid to the City by a permittee to cover the costs as provided in Section 806.07, Subd. 3 of this Chapter.
PATCH OR PATCHING: A method of pavement replacement that is temporary in nature. A patch consists of:
A. The compaction of the subbase and aggregate base; and
B. The replacement, in kind, of the existing pavement for a minimum of two feet (2') beyond the edges of the excavation in all directions.
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 "right of way permit" in Minnesota Statutes Section 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 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 nonprofit, and whether natural, corporate, or political.
PUBLIC RIGHT OF WAY: Has the meaning given thereto in Minnesota Statutes Section 237.162, subdivision 3.
REGISTRANT: Any person who:
A. Has or seeks to have its equipment or facilities located in any right of way; or
B. 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.
RIGHT OF WAY PERMIT: Either the utility permit or the obstruction permit, or both, depending on the context, required by this Chapter.
RIGHT OF WAY USER:
A. A telecommunications right of way user as defined by Minnesota Statutes Section 237.162, subdivision 4; or
B. 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 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.
SERVICE OR UTILITY SERVICE: Means and includes:
A. Those services provided by a public utility, as defined in Minnesota Statutes Section 216B.02, subdivisions 4 and 6;
B. Services of a telecommunications right of way user, including transporting of voice or data information;
C. Services of a cable communications system as defined in Minnesota Statutes Section 238.02, subdivision 3;
D. Natural gas or electric energy or telecommunications services provided by the City;
E. Services provided by a cooperative electric association organized under Minnesota Statutes Chapter 308A; and
F. Water, sewer, including service laterals, steam, cooling or heating services.
SMALL WIRELESS FACILITY: A wireless facility that meets both of the following qualifications:
A. Each antenna is located inside an enclosure of no more than six (6) cubic feet in volume or could fit within such an enclosure; and
B. All other wireless equipment associated with the small wireless facility provided such equipment is, in aggregate, no more than twenty-eight (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 has 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 Minnesota Statutes Chapter 238, and telecommunications activities related to providing natural gas or electric energy services, whether provided by a public utility as defined in Minnesota Statutes Section 216B.02, a municipality, a municipal gas or power agency organized under Minnesota Statutes Chapters 453 and 453A, or a cooperative electric association organized under Minnesota Statutes Chapter 308A, are not telecommunications right of way users for purposes of this Chapter except to the extent such 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 in the right of way, with the excavation having a length equal to or greater than the width of the pavement or adjacent pavement.
UTILITY PERMIT: The permit which, pursuant to this Chapter, must be obtained before a person may excavate in a right of way. A utility permit allows the holder to excavate that part of the right of way described in such permit.
UTILITY PERMIT FEE: Money paid to the City by an applicant to cover the costs as provided in Section 806.07, Subd. 3 of this Chapter.
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, wireline backhaul facilities, or cables between utility poles or wireless support structures, or not otherwise immediately adjacent to and directly associated with a specific antenna.
WIRELESS SERVICE: Any service using licensed or unlicensed wireless spectrum, including the use of Wi-Fi, whether at a fixed location or by means of a mobile device, that is provided using wireless facilities. Wireless service does not include services regulated under Title VI of the Communications Act of 1934, as amended, including cable service.
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.
SECTION 806.04 ADMINISTRATIVE OFFICIAL:
The Engineer is the principal City official responsible for the administration of the rights of way, right of way permits, and the ordinances related thereto. The Engineer may delegate any or all of the duties hereunder.
SECTION 806.05 UTILITY COORDINATION COMMITTEE:
The City may create an advisory utility coordination committee. Participation on the committee is voluntary. The committee will be composed of any registrants that wish to assist the City in obtaining information and by making recommendations regarding use of the right of way, and to improve the process of performing construction work therein. The City may determine the size of such committee and shall appoint members from a list of registrants that have expressed a desire to assist the City.
SECTION 806.06 REGISTRATION AND RIGHT OF WAY OCCUPANCY:
A. Registration Required:
1. Each person who occupies, 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. Registration shall be renewed annually. 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.
2. Nothing in this Chapter shall be construed to repeal or amend the provisions of a City ordinance establishing the rights of and limitations placed on 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 carrying out or requesting the following work shall not be deemed to use or occupy the right of way within the meaning of this Chapter, and shall not be governed by this Chapter:
a. Persons planting or maintaining vegetation in the boulevard.
b. Persons installing driveways.
c. Persons erecting fences over drainage or utility easements, subject to zoning restrictions.
d. Persons engaged in snow removal activities.
e. Persons installing mailboxes.
f. Persons installing irrigation systems.
g. Persons installing pet containment systems.
3. Nothing herein relieves a person from complying with the provisions of the Minnesota Statutes Chapter 216D, gopher one call law.
B. Required Information: The registrant shall provide the following at the time of registration and shall promptly notify the City of changes in such information:
1. Registrant's name, address, telephone number, facsimile number and gopher one call registration certificate number if required by state law.
2. Name, address, telephone number, e-mail address, and facsimile number of the person responsible for fulfilling the obligations of the registrant.
3. A copy of the person’s order granting a certificate of authority from the Minnesota Public Utilities Commission or other authorization or approval from the applicable state or federal agency to lawfully operate in the City, where the person is lawfully required to have such authorization or approval from said commission or other state or federal agency.
a. A certificate of insurance from a company licensed to do business in the state of Minnesota providing coverage in the following amounts:
(1) General Liability: Public liability, including premises, products and complete operations:
|
Bodily injury liability |
$1,000,000.00 each person |
|
Property damage liability |
$3,000,000.00 each occurrence |
|
Bodily injury and property |
|
(2) Comprehensive: Automobile liability insurance, including owned, non-owned and hired vehicles:
|
Bodily injury liability |
$1,000,000.00 each person |
|
Property damage liability |
$3,000,000.00 each occurrence |
|
In lieu of the above, bodily injury |
|
b. Such 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: 1) use and occupancy of the right of way by the registrant, its officers, agents, employees and permittees; and 2) placement and use of equipment or facilities 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 equipment and collapse of property. Such 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 such coverages. Such certificate shall require that the Engineer be notified thirty (30) days prior to cancellation of the policy.
4. Twenty four (24) hour emergency number.
5. An acknowledgment by the registrant of the indemnification pursuant to Section 806.22 of this Chapter.
6. Such other information the Engineer may require.
C. Notice Of Changes: The registrant shall keep all of the information listed in Subsection B of this Section current at all times by providing to the City information as to changes within fifteen (15) days following the date on which the registrant has knowledge of any change.
D. Construction And Maintenance Plan:
1. If requested by Engineer, 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 locations and the estimated beginning and ending dates of all projects to be commenced during the next calendar year.
2. 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.
SECTION 806.07 PERMIT REQUIREMENTS:
Subd. 1 Permits Required:
Except as otherwise provided in this code, no right of way user may obstruct or excavate any right of way or install or place facilities in the right of way without first having obtained the appropriate right of way permit from the City to do so.
A. Utility Permit: A utility 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.
B. Obstruction Permit: An obstruction permit is required by a registrant to hinder free and open passage over the specified portion of the 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 utility permit for the same project.
C. Other Permits: Other permits may be required for persons in accordance with this code
D. Overhead Facilities: Permits for installation, repair or other work on aboveground facilities within the meaning of Minnesota Statutes Section 237.163, subdivision 6(b)(4), will be obstruction permits, notwithstanding the need for excavation, provided the excavation is augered or hand dug for the purpose of placing a pole type structure.
E. 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.
Subd. 2 Application For Permit:
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 Chapter.
B. Submission of a completed permit application form as provided by the City, including all required attachments, and five (5) copies of scaled drawings showing the location and area of the proposed project and the location of all known existing and proposed facilities owned or operated by the applicant. Plans must include scaled dimensions indicating the proposed location of the facility within the right of way and scaled dimensions of the facility from an existing physical topographic feature (such as "back of curb", "edge of bituminous road"). Plans must also show all existing physical topographic features (trees, shrubs, culverts, driveways, fences, street signs) that lie within ten feet (10') of the proposed facility location.
C. Scaled drawings showing the location of any public streets, alleys, sidewalks, or trails that will be disrupted by the work.
D. Scaled drawings showing the location of any public streets, alleys, sidewalks, or trails that will be temporarily closed to traffic or obstructed by the work.
E. A description of methods to be used for restoration of streets or boulevards.
F. 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.
G. Payment of disputed amounts due the City by posting security or depositing in an escrow account an amount equal to at least one hundred percent (100%) of the amount owing.
H. Posting an additional or larger construction performance bond for additional facilities when the applicant requests a utility permit to install additional facilities and the City deems the existing construction performance bond inadequate under applicable standards.
Subd. 3 Permit Fees:
A. Fee Schedule And Fee Allocation: The City permit fee schedule shall be available to the public and established in advance where reasonably possible. The permit fees shall be designed to recover the City's actual costs incurred in managing the right of way and shall be based on an allocation among all users of the right of way, including the City.
B. Fees Established:
1. Utility Permit Fee: The City shall establish a utility permit fee in an amount sufficient to recover the following costs:
a. City management costs.
b. Degradation costs, if applicable.
2. Obstruction Permit Fee: The City shall establish the obstruction permit fee which shall be in an amount sufficient to recover the City management costs.
3. Small Wireless Facility Permit Fee: The City shall impose a small wireless facility permit fee in an amount sufficient to recover:
a. City management costs.
b. City engineering, make-ready, and construction costs associated with collocation of small wireless facilities.
C. Payment Of Fees: No utility permit or obstruction permit shall be issued without payment of excavation or obstruction permit fees.
D. Fees Nonrefundable: Permit fees that were paid for a permit that the City has revoked for a breach, as stated in Section 806.07, Subd. 10 of this Chapter are not refundable.
E. Application To Franchises: Unless otherwise agreed to in a franchise, management costs may be charged separately from and in addition to the franchise fees imposed on a right of way user in the franchise.
Subd. 4 Security:
A construction performance bond in an amount determined by the Engineer shall be required from each applicant. A surety bond shall be from a corporate surety authorized to do business in the state. Security required pursuant to this Section shall require that the holder will perform the work in accordance with this Chapter and applicable permits and 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 pursuant to this code. The construction performance bond shall be released by the City upon completion of the work and compliance with all conditions imposed by the permit. For permits allowing excavations within the public right of way, the construction performance bond shall be held for a period of twenty four (24) months to guaranty the adequacy of all restoration work.
Subd. 5 Issuance of Permit; Conditions:
A. Issuance: If the applicant has satisfied the requirements of this Chapter, the City shall issue a permit within ten (10) business days of receiving a completed application. If the City issues a permit under this Chapter, the applicant shall not be required to obtain a permit for the same work under Chapters 801, 802, 803 and 804.
B. Conditions: The City may impose reasonable conditions upon the issuance of the permit and the performance of the applicant thereunder to protect the health, safety and welfare or when necessary to protect the right of way and its current use. The permittee shall comply with all conditions contained in the permit.
C. Notice Of Work: Upon request by the Engineer, the permittee shall notify in writing, in a form approved by the Engineer, all residents specified by the Engineer whose property is adjacent to the right of way where the proposed work is to be done indicating start and completion dates. Written notification is not required for routine obstruction and excavation projects described in Section 806.09 of this Chapter.
D. Small Wireless Facility Conditions:
a. In addition to conditions under Section 806.07, Subd. 5(B), the erection or installation of a wireless support structure, the collocation of a small wireless facility, or other installation of a small wireless facility in the right-of-way, shall be subject to the following conditions: 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.
b. No new wireless support structure installed within the right-of-way shall exceed fifty (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 fifty (50) feet in height with a structure of the same height subject to such conditions or requirements as may be imposed in the applicable permit.
c. No wireless facility may extend more than ten (10) feet above its wireless support structure.
d. Where an applicant proposes to install a new wireless support structure in the right-of-way, the City may impose separation requirements between such structure and any existing wireless support structure or other facilities in and around the right-of-way.
e. 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.
f. 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.
E. 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 City may require payment of the following in the standard collocation agreement:
a. Up to $150 per year for rent to collocate on the City structure.
b. $25 per year for maintenance associated with the collocation;
c. A monthly fee for electrical service as follows:
1. $73 per radio node less than or equal to 100 maximum watts;
2. $182 per radio node over 100 maximum watts; or
3. The actual costs of electricity, if the actual cost exceed the foregoing.
The standard collocation agreement shall be in addition to, and not in lieu of, the required small wireless facility permit, provided, however, that the applicant shall not be additionally required to obtain a license or franchise in order to collocate. Issuance of a small wireless facility permit does not supersede, alter or affect any then-existing agreement between the City and applicant.
F. Action on Small Wireless Facility Permit Applications:
a. Deadline for Action: The City shall approve or deny a small wireless facility permit application within ninety (90) days 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.
b. Consolidated Applications: 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 to by a local government unit, provided that all small wireless facilities in the application:
1. are located within a two mile (2) radius;
2. consist of substantially similar equipment; and
3. are to be placed on similar types of wireless support structures.
In rendering a decision on a consolidated permit application, the City may approve some small wireless facilities and deny others, but may not use denial of one or more permits as a basis to deny all small wireless facilities in the application.
G. Tolling of Deadline:
a. The 90-day deadline for action on a small wireless facility permit application may be tolled if:
b. The City receives applications from one or more applicants seeking approval of permits for more than thirty (30) small wireless facilities within a seven-day period. In such case, the City may extend the deadline for all such applications by thirty (30) days by informing the affected applicants in writing of such extension.
c. The applicant fails to submit all required documents or information and the City provides written notice of incompleteness to the applicant within thirty (30) days of receipt 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.
The City and a small wireless facility applicant agree in writing to toll the review period.
Subd. 6 Denial of Permit:
The City may deny a permit for failure to meet the requirements and conditions of this Chapter; or if the City 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 use; or for the following specific violations:
A. Failure to register pursuant to Section 806.06 of this Chapter.
B. A proposed excavation within a street or sidewalk surface that has been constructed or reconstructed within the preceding seven (7) years, unless the Engineer determines that no other locations are feasible or when necessitated by emergency.
C. The applicant is subject to revocation of a prior permit issued pursuant to this Chapter.
D. The proposed schedule for the work would conflict or interfere with an exhibition, celebration, festival or any other similar event.
E. The right of way would become unduly congested due to the proposed facilities and equipment when combined with other uses in the right of way, as provided in Section 806.18(F) of this Chapter.
F. Businesses or residences in the vicinity will be unreasonably disrupted.
G. The applicant failed to meet a reasonable schedule to participate in a mandated joint trench operation with other applicants, and the additional work will unreasonably disrupt the restored right of way, businesses or residences.
H. The proposed schedule conflicts with scheduled reconstruction of the right of way.
Procedural Requirements: The denial or revocation of a permit must be made in writing and must document the basis for the denial. The City must notify the applicant or right-of-way user in writing within three business days of the decision to deny or revoke a permit. If an application is denied, the right-of-way user may address the reasons for denial identified by the City and resubmit its application. If the application is resubmitted within 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.
Subd. 7 Display of Permit:
Permits issued under this Chapter shall be conspicuously displayed or otherwise available at all times at the indicated work site and shall be available for inspection by the City.
Subd. 8 Extension of Permit:
No person may excavate or obstruct the right of way beyond the date or dates specified in the permit unless: a) such person makes a supplementary application for another right of way permit before the expiration of the initial permit or requests a verbal extension; and b) a new permit or permit extension is granted. Verbal extensions may be granted by the Engineer for a period no greater than forty eight (48) hours or for emergencies.
Subd. 9 Joint and Individual Applications:
A. Joint Trenching: The Engineer may require registrants to jointly apply for permits to excavate or obstruct the right of way at the same place and time.
B. Fees: The registrant who applies for a joint utility permit shall pay the required permit fee.
Subd. 10 Revocation of Permits:
A. Substantial Breach: The City reserves its right to revoke any right of way permit, without a fee refund, if there is a substantial breach of the terms and conditions of any statute, ordinance, rule or regulation or any material condition of the permit. A substantial breach by permittee shall include, but shall not be limited to, the following:
1. The violation of any material provision of the right of way permit;
2. An evasion or attempt to evade any material provision of the right of way permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the City or its citizens;
3. Any material misrepresentation of fact in the application for a right of way permit;
4. The failure to complete the work in a timely manner, unless a permit extension is obtained or unless the failure to complete work is due to reasons beyond the permittee's control; or
5. The failure to correct, in a timely manner, work that does not conform to a condition indicated on a written notice issued pursuant to Section 806.14 of this Chapter.
B. Written Notice Of Breach: If the City determines that the permittee has committed a substantial breach of a term or condition of any statute, ordinance, rule, regulation or any condition of the permit, the City shall make a written demand upon the permittee to remedy such violation. The demand shall state that continued violations may be cause for revocation of the permit. A substantial breach, as stated in Subsection A of this Section, will allow the City to place additional or revised conditions on the permit to mitigate and remedy the breach.
C. Response To Notice: Within a time established by the Engineer following permittee's receipt of notification of the breach, the permittee shall provide the City with a plan to cure the breach, acceptable to the City. The permittee's failure to submit a timely and acceptable plan, or the permittee's failure to timely implement the approved plan, shall be cause for immediate revocation of the permit.
D. Reimbursement Of City Costs: If a permit is revoked, the permittee shall also reimburse the City for the City's reasonable costs, including restoration costs and the costs of collection and reasonable attorney fees incurred in connection with such revocation.
Subd. 11 Supplementary Applications:
A. Limitation On Area: A right of way permit is valid only for the area of the right of way specified in the permit. No permittee may do any work outside the area specified in the permit, except as provided herein. Any permittee who determines that an area greater than that specified in the permit will be obstructed or excavated must, before working in that greater area: 1) make application for a permit extension and pay any additional fees required thereby; and 2) be granted a new permit or permit extension.
B. Limitation On Dates:
1. A right of way permit is valid only for the dates specified in the permit. No permittee may begin work before the permit start date or, except as provided herein, continue working after the end date. Except in the case of verbal extensions, if a permittee does not finish the work by the permit end date, it must apply for a new permit for the additional time it needs, and receive the new permit or an extension of the old permit before working after the end date of the previous permit. This supplementary application must be submitted before the permit end date.
2. If the obstruction or excavation of the right of way begins later or ends sooner than the date given on the permit, the permittee shall notify the City by supplementary application of the accurate information as soon as this information is known.
SECTION 806.08 OTHER OBLIGATIONS:
A. Compliance With Other Laws: Obtaining a right of way permit does not relieve permittee of its duty to obtain all other necessary permits, licenses, and authority and to pay all fees required by the City or other applicable rule, law or regulation. A permittee shall comply with all requirements of local, state and federal laws, including, but not limited to, Minnesota Statutes Sections 216D.01 to 216D.09 (gopher one call excavation notice system) and Minnesota Rules Chapter 7560. A permittee shall perform all work in conformance with all applicable codes and established Rules and regulations, and is responsible for all work done in the right of way pursuant to its permit, regardless of who does the work.
B. Prohibited Work: Except in an emergency, or with the approval of the City, no right of way obstruction or excavation may be done when seasonally prohibited or when conditions are unreasonable for such work.
C. Interference With Right Of Way: A permittee shall not so obstruct a right of way that the natural free and clear passage of water through the gutters or other waterways shall be interfered with, unless otherwise approved by the Engineer. Private vehicles of those doing work in the right of way may not be parked within or next to a permit area, unless parked in conformance with City parking regulations. The loading or unloading of trucks must be done solely within the defined permit area unless specifically authorized by the permit.
D. Traffic Control: A permittee shall implement traffic control measures in the area of the work and shall use traffic control procedures in accordance with the most recent manuals on uniform traffic control, traffic control devices and traffic zone layouts published by the state of Minnesota.
E. Trenchless Excavation: As a condition of all applicable permits, permittees employing trenchless excavation methods, including, but not limited to, horizontal directional drilling, shall follow all requirements set forth in Minnesota Statutes Chapter 216D and Minnesota Rules Chapter 7560, and shall require potholing or open cutting over existing underground utilities before excavating, as determined by the Engineer.
SECTION 806.09 ROUTINE OBSTRUCTION AND EXCAVATION:
Routine excavations and obstructions are permitted without separate notice and separate compensation for such projects. Projects that do not involve excavation of paved surface and that last less than a continuous eight (8) hour period in duration between seven o'clock (7:00) A.M. and seven o'clock (7:00) P.M., Monday through Friday, excluding holidays, may, in the Engineer's discretion, be considered routine obstruction and excavation and include, by way of example, switching, replacing fuses, replacing transformers, placing line guards, leak surveys, anode installations and inspections, or to repair facilities due to public damage or accident.
SECTION 806.10 DILIGENCE IN PERFORMING WORK; DELAY PENALTY:
Work shall progress in an expeditious manner as permitted by weather conditions until completion in order to avoid unnecessary inconvenience. In the event that the work is not performed in accordance with applicable regulations, excavations and utility connections, or the work is not done in an expeditious manner, or is abandoned without due cause, the City may, after seventy two (72) hours' notice to the permit holder, correct and fill the excavation or repair the street. The entire cost of such work shall be paid by the permit holder upon demand made by the City. In accordance with Minnesota Rule 7819.1000, Subpart 3, 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. 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.
SECTION 806.11 WORK STANDARDS:
The permit holder shall comply with the following standards when engaging in the work:
A . Observe and comply with all laws, Rules and regulations of the state.
B. Conduct the operation and perform the work in a manner as to ensure the least obstruction and interference to traffic.
C. Take adequate precautions to ensure the safety of the general public and those who require access to abutting property.
D. If required by the Engineer, notify adjoining property owners prior to the commencement of work which may disrupt the use of and access to such adjoining properties.
E. In all cases where construction work interferes with the normal use of the construction area, provide for closing the construction area to traffic or to afford restricted use of the area and comply with MUTCD traffic safety signing requirements.
F. Exercise precaution at all times for the protection of persons, including employees and property.
G. Protect and identify excavations and work operations with barricade flags and, if required, by flagmen in the daytime and by warning lights at night.
H. Provide proper trench protection as required by OSHA when necessary and, depending upon the type of soil, in order to prevent cave-ins endangering life or tending to enlarge the excavation.
I. Protect the root growth of trees and shrubbery.
J. Installation of pipe (utility conductors) under concrete or bituminous pavements shall be done by jacking, auguring or tunneling as directed by the Engineer unless otherwise authorized.
K. All backfilling must be placed in six inch (6") layers at optimum moisture and compacted with the objective of attaining one hundred percent (100%) of standard proctor density. Compaction shall be accomplished with hand, pneumatic or vibrating compacters, as appropriate.
L. No metal tracked or other lugged equipment is allowed to be driven on the public right of way.
SECTION 806.12 INSPECTIONS:
A. Site Inspection: Permittee shall make the work site available to the City and to all others as authorized by law for inspection at all reasonable times during the execution of and upon completion of the work.
B. Authority Of Engineer:
1. At the time of inspection, the Engineer may order the immediate cessation of any work which poses a serious threat to the life, health, safety or well -being of the public.
2. The Engineer may issue an order to the permittee to correct any work that does not conform to the terms of the permit or other applicable standards, conditions, or code. If the work failure is a "substantial breach", within the meaning of Minnesota Statutes Section 237.163, subdivision 4(c), the order shall state that failure to correct the violation will be cause for revocation of the permit after a specified period determined by the Engineer. The permittee shall present proof to the Engineer that the violation has been corrected within the time period set forth by the Engineer in the order. Such proof shall be provided no later than the next business day following the day of completion. If such proof has not been presented within the required time, the Engineer may revoke the permit pursuant to Section 806.07, Subd. 10 of this Chapter.
SECTION 806.13 WORK WITHOUT PERMIT:
A. Emergency Situations:
1. Each registrant shall immediately notify the Engineer of any event regarding its facilities that it considers to be an emergency. The registrant may proceed to take whatever actions are necessary to respond to the emergency. Excavators' notification to state gopher one call regarding an emergency situation does not fulfill this requirement. Within two (2) business days after the occurrence of the emergency, the registrant shall apply for the necessary permits, pay the fees associated therewith, and fulfill the rest of the requirements necessary to bring itself into compliance with this Chapter for the actions it took in response to the emergency.
2. If the City becomes aware of an emergency regarding a registrant's facilities, the City will attempt to contact the local representative of each registrant affected, or potentially affected, by the emergency. In any event, the City may take whatever action it deems necessary to respond to the emergency, the cost of which shall be borne by the registrant whose facilities occasioned the emergency.
B. Non-emergency Situations: Except in an emergency, any person who, without first having obtained the necessary permit, obstructs or excavates a right of way must subsequently obtain a permit and, as a penalty, pay double the normal fee for said permit, pay double all the other fees required by this code, deposit with the City the fees necessary to correct any damage to the right of way, and comply with all of the requirements of this Chapter.
SECTION 806.14 INSTALLATION REQUIREMENTS:
The excavation, backfilling, patching and restoration, and all other work performed in the right of way shall be done in conformance with Minnesota Rules 7819.1100 and 7819.5000 and other applicable local requirements, insofar as they are not inconsistent with the Minnesota Statutes Sections 237.162 and 237.163. Installation of service laterals shall be performed in accordance with Minnesota Rules Chapter 7560 and this Section. Service lateral installation is further subject to those requirements and conditions set forth by the City in the applicable permits and/or agreements referenced in Section 806.16(B) of this Chapter.
SECTION 806.15 PATCHING AND RESTORATION OF RIGHT OF WAY:
A. Timing: The work to be done under the utility permit, and the patching and restoration of the right of way as required herein, must be completed within the dates specified in the permit, increased by as many days as work could not be done because of circumstances beyond the control of the permittee or when work was prohibited as unseasonal or unreasonable under Section 806.08(B) of this Chapter or if the permittee is granted a new permit.
B. Performing Work: Permittee must patch its own work. The City may choose either to have the permittee restore the surface and sub-grading portions of right of way or to restore the surface portion of right of way itself.
1. Permittee Restoration: If the permittee restores the right of way itself, it shall, at the time of application for a utility permit, post a construction performance bond in accordance with the provisions of Section 806.07, Subd. 4 of this Chapter, and Minnesota Rules 7819.3000.
2. City Restoration: If the City restores the surface portion of right of way, permittee shall pay the costs thereof within thirty (30) days of billing. If, following such restoration, the pavement settles or otherwise fails for reasons not caused by the City's failure to properly restore, the permittee shall pay to the City, within thirty (30) days of billing, all costs associated with correcting the defective work.
3. Degradation Fee In Lieu Of Restoration: In lieu of right of way restoration, a right of way user may elect to pay a degradation fee. However, the right of way user shall remain responsible for replacing and compacting the subgrade and aggregate based material in the excavation, and the degradation fee shall not include the cost to accomplish these responsibilities.
C. Standards: The permittee shall perform patching and restoration according to the standards and with the materials specified by the City and shall comply with Minnesota Rules 7819.1100. In exercising authority over restoration, the Engineer shall be guided by the following standards and considerations:
1. The number, size, depth and duration of the excavations, disruptions or damage to the right of way;
2. The traffic volume carried by the right of way and the character of the neighborhood surrounding the right of way;
3. The pre-excavation condition of the right of way and the remaining life expectancy of the right of way affected by the excavation;
4. Whether the relative cost of the method of restoration to the permit holder is in reasonable balance with the prevention of an accelerated depreciation of the right of way that would otherwise result from the excavation, disturbance or damage to the right of way; and
5. The likelihood that the particular method of restoration would be effective in slowing the depreciation of the right of way that would otherwise take place.
D. Duty To Correct Defects: The permittee shall correct defects in patching or restoration performed by permittee or its agents. Upon notification from the City, permittee shall correct all restoration work to the extent necessary, using the method required by the City. Unless otherwise agreed to by the Engineer, said work shall be commenced within two (2) days of receipt of the notice from the City and shall be completed within fourteen (14) days of commencement of work, not including days during which work cannot be done because of circumstances constituting force majeure or days when work is prohibited as unseasonal or unreasonable under Section 806.08(B) of this Chapter.
E. Failure To Restore: If the permittee fails to restore the right of way in the manner and to the condition required by the City, or fails to satisfactorily and timely complete all restoration required by the City, the City shall notify the permittee in writing of the specific alleged failure or failures and shall allow the permittee five (5) days from receipt of said written notice to cure said failure or failures, unless otherwise extended by the Engineer. In the event the permittee fails to cure, the City may, at its option, perform the necessary work, and the permittee shall pay to the City, within thirty (30) days of billing, the cost of restoring the right of way. If the permittee fails to pay as required, the City, in addition to other remedies provided by law, may exercise its rights under the construction performance bond.
SECTION 806.16 MAPPING DATA:
A. Information Required: Each registrant and permittee shall provide mapping information required by the City in accordance with Minnesota Rules 7819.4000 and 7819.4100. Within ninety (90) days following completion of any work pursuant to a permit, the permittee shall provide the Engineer accurate maps and drawings certifying the as built location of all equipment installed, owned, and maintained by the permittee. Such maps and drawings shall include the horizontal and vertical location of all facilities and equipment and shall be provided consistent with the City's electronic mapping system, when practical or as a condition imposed by the Engineer. Failure to provide maps and drawings pursuant to this Section shall be grounds for revoking the permit holder's registration.
B. Service Laterals: All permits issued for the installation or repair of service laterals, other than minor repairs as defined in Minnesota Rules 7560.0150, Subpart 2, shall require the permittee's use of appropriate means of establishing the horizontal locations of installed service laterals and the service lateral vertical locations in those cases where the Engineer reasonably requires it. Permittees or their subcontractors shall submit to the Engineer evidence satisfactory to the Engineer of the installed service lateral locations. Compliance with this Subsection and with applicable state gopher one call law and Minnesota Rules governing service laterals installed after December 31, 2007, shall be a condition of any City approval necessary for: 1) payments to contractors working on a public improvement project including those under Minnesota Statutes Chapter 429; and 2) City approval of performance under development agreements or other subdivision or site plan approval under Minnesota Statutes Chapter 462. The Engineer shall reasonably determine the appropriate method of providing such information to the City. Failure to provide prompt and accurate information on the service laterals installed may result in the revocation of the permit issued for the work or for future permits to the offending permittee or its subcontractors.
SECTION 806.17 UNDERGROUNDING:
A. Purpose: The purpose of this Section is to promote the health, safety and general welfare of the public and is intended to foster: 1) safe travel over the right of way; 2) non-travel related safety around homes and buildings where overhead feeds are connected; and 3) orderly development in the City. Location and relocation, installation and reinstallation of facilities in the right of way or in or on other public ground must be made in accordance with this Section and is intended to be enforced consistently with state and federal law regulating right of way users, specifically including, but not limited to, Minnesota Statutes Sections 161.45, 237.162, 237.163, 301B.01, 222.37, 238.084 and 216B.36 and the telecommunications act of 1996, title 47, USC Section 253.
B. New Facilities: Facilities newly installed, constructed or otherwise placed in the public right of way or in other public property held in common for public use must be located and maintained underground pursuant to the terms and conditions of this Section and in accordance with applicable construction standards, subject to the exceptions below. Aboveground installation, construction, modification, or replacement of meters, gauges, transformers, street lighting, pad mount switches, capacitor banks, re-closers and service connection pedestals shall be allowed. These requirements shall apply equally outside of the corporate limits of the City coincident with City jurisdiction of platting, subdivision regulation or comprehensive planning as may now or in the future be allowed by law.
C. Permanent Replacement, Relocated Or Reconstructed Facilities: If the City finds that one or more of the purposes set forth in Subsection A of this Section would be promoted, the City may require a permanent replacement, relocation or reconstruction of a facility to be located and maintained underground, with due regard for seasonal working conditions. For purposes of this Subsection, "reconstruction" means any substantial repair of or any improvement to existing facilities. Undergrounding may be required whether a replacement, relocation or reconstruction is initiated by the right of way user owning or operating the facilities, or by the City in connection with: 1) the present or future use by the City or other local governmental unit of the right of way or other public ground for a public project; 2) the public health or safety; or 3) the safety and convenience of travel over the right of way. Subject to Subsection D of this Section, all relocations from previously placed underground facilities shall be to another underground location.
D. Exceptions: The following exceptions to the strict application of this Section shall be allowed upon the conditions stated:
1. Technical/Economic Feasibility; Promotion Of Policy: Aboveground installation, construction, or placement of facilities shall be allowed in residential, commercial and industrial areas where the council, following consideration and recommendation by the planning commission, finds that:
a. Underground placement would place an undue financial burden upon the landowner, rate payer, or right of way user, or would deprive the landowner of the preservation and enjoyment of substantial property rights; or
b. Underground placement is impractical or not technically feasible due to topographical, subsoil or other existing conditions which adversely affect underground facilities placement; or
c. Failure to promote the purposes of undergrounding. The right of way user clearly and convincingly demonstrates that none of the purposes under Subsection A of this Section would be advanced by underground placement of facilities on the project in question, or the City determines on its own review that undergrounding is not warranted based on the circumstances of the proposed undergrounding.
2. Temporary Service: Aboveground installation, construction, or placement of temporary service lines shall only be allowed:
a. During new construction of any project for a period not to exceed three (3) months.
b. During an emergency in order to safeguard lives or property within the City.
c. For a period of not more than seven (7) months when soil conditions make excavation impractical.
E. Developer Responsibility: All owners, platters, or developers are responsible for complying with the requirements of this Section and, prior to final approval of any plat or development plan, shall submit to the Engineer written instruments from the appropriate right of way users showing that all necessary arrangements with said users for installation of such facilities have been made.
SECTION 806.18 LOCATION AND RELOCATION OF FACILITIES:
A. Compliance With State Regulations: Placement, location and relocation of facilities must comply with the act, with other applicable rights of the City under its police power, and with Minnesota Rules 7819.3100, 7819.5000 and 7819.5100, to the extent the Rules do not limit authority otherwise available to cities.
B. Relocation Notification Procedure: The Engineer shall notify the utility owner at least three (3) months in advance of the need to relocate existing facilities so the owner can determine if relocation or replacement is required and plan any required work. The City should provide one notification, provide the date work will start on the City's project and, if different, provide the date by which the relocation must be completed. To the extent technically feasible and limited by seasonal constraints, all utilities shall be relocated within one month or in a time frame determined by the Engineer. The Engineer may allow a different schedule if it does not interfere with the City's project. The utility owner shall diligently work to relocate the facilities within the above schedule.
C. Delay To City Project: If the owner fails to meet the relocation schedule due to circumstances within the utility's control, the City may charge the utility owner for all costs incurred by the City because the relocation is not completed in the scheduled time frame.
D. Joint Trenching: All facilities shall be placed in appropriate portions of right of way so as to cause minimum conflict with other underground facilities. When technically appropriate and no safety hazards are created, all utilities shall be installed, constructed or placed within the same trench. Notwithstanding the foregoing, gas and electric lines shall be placed in conformance with Minnesota Rules Part 7819.5100, Subpart 2, governing safety standards.
E. Corridors:
1. The City may assign a specific area within the right of way, or any particular segment thereof as may be necessary, for each type of facility that is or, pursuant to current technology, the City expects will be located within the right of way. All utility, obstruction, or other permits issued by the City involving the installation or replacement of facilities shall designate the proper corridor for the facilities at issue. A typical cross Section of the location for utilities may be on file at the Engineer's office. This Section is not intended to establish "high density corridors".
2. Any registrant who has facilities in the right of way in a position at variance with the corridors established by the City may remain at that location until the City requires facilities relocation to the corridor pursuant to relocation authority granted under Minnesota Rules 7819.3100 or other applicable law.
F. Limitation Of Space: To protect the public health, safety, and welfare, or when necessary to protect the right of way and its current use, the City shall have the power to prohibit or limit the placement of new or additional facilities within the right of way. In making such decisions, the City shall strive, to the extent possible, to accommodate all existing and potential users of the right of way, but shall be guided primarily by considerations of the public interest, the public needs for the particular utility service, the condition of the right of way, the time of year with respect to essential utilities, the protection of existing facilities in the right of way, and future City plans for public improvements and development projects which have been determined to be in the public interest.
SECTION 806.19 PREEXCAVATION FACILITIES LOCATION:
In addition to complying with the requirements of Minnesota Statutes Sections 216D.01 to 216D.09 (one call excavation notice system) before the start date of any right of way excavation, each registrant who has facilities or equipment in the area to be excavated shall be responsible to mark the horizontal placement of all said facilities, to the extent technically feasible. To the extent its records contain such information, each registrant shall provide information regarding the approximate vertical location of its facilities, at the time of installation, to excavators upon request. Nothing in this Section is meant to limit the rights, duties and obligations of the facility owners or excavators as set forth in Minnesota Statutes Sections 216D.01 to 216D.09.
SECTION 806.20 INTERFERENCE BY OTHER FACILITIES:
When the City does work in the right of way, in its governmental right of way management function, and finds it necessary to maintain, support, or move a registrant's facilities to carry out the work without damaging the registrant's facilities, the City shall notify the local representative as early as is reasonably possible. The City costs associated therewith will be billed to that registrant and must be paid within thirty (30) days from the date of billing. Each registrant shall be responsible for the cost of repairing any facilities in the right of way which it or its facilities damage.
SECTION 806.21 VACATION OF RIGHT OF WAY:
A. Reservation Of Right: If the City vacates a right of way which contains the equipment of a registrant, and if the vacation does not require the relocation of registrant facilities and equipment, the City shall reserve, to and for itself and all registrants having facilities and equipment in the vacated right of way, the right to install, maintain and operate any facilities and equipment in the vacated right of way and to enter upon such right of way at any time for the purpose of reconstruction, inspecting, maintaining or repairing the same.
B. Relocation Of Equipment: If the vacation requires the relocation of registrant facilities and equipment, and: 1) if the vacation proceedings are initiated by the registrant, the registrant must pay the relocation costs; or 2) if the vacation proceedings are initiated by the City, the registrant must pay the relocation costs unless otherwise agreed to by the City and the registrant; or 3) if the vacation proceedings are initiated by a person or persons other than the registrant or permit holder, such other person or persons must pay the relocation costs.
SECTION 806.22 INDEMNIFICATION AND LIABILITY:
By registering with the City, or by accepting a permit under this Chapter, a registrant or permittee agrees to defend and indemnify the City in accordance with the provisions of Minnesota Rules 7819.1250.
SECTION 806.23 ABANDONED FACILITIES:
A. Discontinued Operations: A registrant who has decided to discontinue all or a portion of its operations in the City must provide information satisfactory to the City that the registrant's obligations for its facilities in the right of way under this Chapter have been lawfully assumed by another registrant.
B. Removal: Any registrant who has abandoned facilities in any right of way shall remove them from that right of way pursuant to Minnesota Rules 7819.3300, unless the requirement is waived by the Engineer. A facility is not abandoned unless declared so by the operator.
SECTION 806.24 APPEALS:
A right of way user that: a) has been denied registration; b) has been denied a permit; c) has had a permit revoked; d) believes that the fees imposed are not in conformity with Minnesota Statutes Section 237.163, subdivision 6; or e) disputes a determination of the Engineer regarding Section 806.16(B) of this Chapter may have the denial, revocation, fee imposition, or decision reviewed, upon written request, by the City council. The City council shall act on a timely written request at its next regularly scheduled meeting. A decision by the City council affirming the denial, revocation, or fee imposition will be in writing and supported by written findings establishing the reasonableness of the decision.
SECTION 806.25 RESERVATION OF REGULATORY AND POLICE POWERS:
A permittee's or registrant'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.
SECTION 806.26 SEVERABILITY:
If any Section, Subsection, sentence, clause, phrase, or portion of this Chapter is, for any reason, held invalid or unconstitutional by any court or administrative agency of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision, and such holding shall not affect the validity of the remaining portions hereof. If a regulatory body or a court of competent jurisdiction should determine, by a final, non-appealable order, that any permit, right or registration issued under this Chapter or any portions of this Chapter is illegal or unenforceable, then any such permit, right or registration granted or deemed to exist hereunder shall be considered as a revocable permit with a mutual right in either party to terminate without cause upon giving sixty (60) days' written notice to the other. The requirements and conditions of such a revocable permit shall be the same requirements and conditions as set forth in the permit, right or registration, respectively, except for conditions relating to the term of the permit and the right of termination. Nothing in this Chapter precludes the City from requiring a franchise agreement with the applicant, as allowed by law, in addition to requirements set forth herein.
(4/13/18, Ord. No. 18-04)