HomeMy WebLinkAbout#10 Right-of-Way Ordinance Amendment STAFF REPORT
DATE: 9/5/17
CONSENT
MOTION
TO: Planning Commission
FROM: Emily Becker, Planning Director
AGENDA ITEM: Amendments to Chapter 94: Right-of-Way Management Permits to
Address Small Wireless Facilities
REVIEWED BY: Stephen Wensman, Former Planning Director
Jack Griffin, City Engineer
Sarah Sonsalla, City Attorney
Rob Weldon, Public Works
BACKGROUND:
Minnesota Statutes, Sections 237.162 and 237.163 were expanded in the 2017 Legislative
Session to allow the deployment of “small wireless facilities” in the right-of-way (ROW). This
state law gives telecommunications right-of-way users the right to install facilities in the ROW
and use the ROW for the delivery of their services, subject to local governmental authority to
manage the ROW by permitting. Under such ROW ordinances, use of the ROW may be
conditioned or denied if necessary to protect public health, safety, or welfare, and that broad
protection remains applicable to small wireless facilities.
ISSUE BEFORE COUNCIL:
The City Council is being asked to adopt Ord. 08-185 which amends Chapter 94: Right-of-Way
Management Permits to include language from Minnesota Statutes, Sections 237.162 and
237.163 as expanded in the 2017 Legislative Session to allow the deployment of “small wireless
facilities” in the ROW.
REVIEW/ANALYSIS:
A summary of the proposed changes is as follows:
• Definitions Added. The term “telecommunications right-of-way user” was amended to
include persons deploying facilities to provide “wireless service”
• Small Wireless Communication Facilities Allowed in ROW. Allows wireless providers to
deploy a “small wireless facility” or “wireless support structure” in the ROW.
o “Small” is defined.
• Findings for Denial. Small cell facilities permits may be denied based on reasonable
health, welfare and safety concerns.
o The City may determine if a particular pole or other structure in the ROW is
designed to support proposed wireless equipment or is capable of doing so and
may deny access based on this determination.
o Additionally, the City may deny a wireless support structure at a location where
the City intends to extend future watermain and/or sanitary sewer. Staff would
need to propose a detailed explanation for denial.
• Appeals. The applicant may resubmit an application within 30 days of receipt of the
notice of denial, and no additional application fee shall be imposed.
• Conditions on Permits. Permits may be conditioned on health, welfare, and safety
concerns, as well as reasonable accommodations for decorative wireless support
structures or signs.
• Regulations on Distance Between Facilities. Distance minimums between new poles or
other wireless support structures may be imposed.
• Other minor amendments as demonstrated in the model ordinance are proposed.
• Permit Required. Requires a permit for placement of new wireless structure or
collocation of small wireless facilities in the ROW and provides timelines by which the
City must approve or deny the permit; how many applications may be filed at one time;
and the permit denial process.
• Rent. May be up to $150 per year, with a $25 yearly maintenance fee. If electricity is
provided, additional fees may apply.
Zoning. A change to the Zoning Code is needed in order to make small wireless a permitted use
in all ROW. The City may made small cell wireless facilities a conditional use in single-family
residential zoning districts.
Agreement with Wireless Providers Governing Attachments to Public Facilities. The City is
allowed to set forth terms and conditions of collocation in a standard small wireless facility
collocation agreement. The League of Minnesota Cities is working on a template agreement that
will be made available on their website.
Fee Schedule Updated to Include Franchise Fee. The ordinance amendment now references
franchise fees, so the fee schedule will need to be updated to include a franchise fee.
Fee Schedule Updated to Include Small Wireless Facility Permit. Staff has proposed
adoption of Ord. 08-186 which amends the City’s fee schedule to include a Small Wireless
Facility Permit Fee. Currently, as the right-of-way ordinance did not previously mention such a
permit, there was no fee, and there needs to be one as the other permit fees do not apply to this
permit. This fee will include inspections by the City as to whether the pole on which the small
wireless facility is installed is City-owned, utility-owned or installed by the wireless provider.
FISCAL IMPACT:
None.
OPTIONS:
The City Council is being asked to adopt as part of tonight’s Consent Agenda Ord. 08-185 and
Ord. 08-186:
1) Adopt Ords. 08-185 and 08-186 as presented.
2) Amend Ords. 08-185 and 08-186 and adopt as amended.
3) Do not adopt Ord. 08-185 and 08-186
RECOMMENDATION:
Staff recommends the City Council adopt Ord. 08-185 amending Chapters 72 and 73 of the City
Code as part of tonight’s Consent Agenda. If removed from the Consent Agenda, Staff
recommends the following motion:
“Move to adopt Ord. 08-185 amending Chapter 94: Right-of-Way Management Permits to
include provisions and standards for small wireless facilities.”
Staff recommends the City Council adopt Ord. 08-186 amending the City’s Fee Schedule to
include a Small Wireless Facility permit fee. If removed from the Consent Agenda, Staff
recommends the following motion:
“Move to adopt Ord. 08-186 amending the City’s Fee Schedule to include a Small Wireless
Facility permit fee.”
Staff also recommends that Council approve, as part of tonight’s Consent Agenda, adoption of
Resolution 2017-090, approving summary publication of Ord. 08-185 and Ord. 08-186. If
removed from the Consent Agenda, Staff recommends the following motion:
“Move to adopt Resolution 2017-090, approving summary publication of Ord. 08-185 and Ord.
08-186.”
ATTACHMENTS:
• Right-of-Way Memorandum
• Ord. 08-185 and 08-186
• Resolution 2017-090
• Amended Fee Schedule
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CITY OF LAKE ELMO
COUNTY OF WASHINGTON
STATE OF MINNESOTA
ORDINANCE NO. 08-185
AN ORDINANCE AMENDING THE LAKE ELMO CITY CODE OF ORDINANCES BY
ADDRESSING SMALL CELL WIRELESS FACILITIES IN THE RIGHT-OF-WAY
SECTION 1. The City Council of the City of Lake Elmo hereby amends Title IX: General
Regulations; Chapter 94: Right-of-Way Management Permits by amending the following:
GENERAL PROVISIONS
§ 94.01 FINDINGS AND PURPOSE.
(A) To provide for the health, safety, and well-being of its citizens, and to ensure the
structural integrity of its streets and the appropriate use of the rights-of-way, the city strives to
keep its rights-of-way in a state of good repair and free from unnecessary encumbrances.
Although the general population bears the financial burden for the upkeep of the rights-of-way, a
primary cause for the early and excessive deterioration of its rights-of-way is frequent
excavation.
(B) Right-of-way obstruction is a source of frustration for merchants, business owners, and
the general population which must avoid these obstructions or change travel or shopping plans
because of them and has a detrimental effect on commerce. Persons whose equipment is within
the right-of-way are the primary cause of these frequent obstructions.
(C) The city holds the rights-of-way within its geographical boundaries as an asset in trust for
its citizens. The city and other public entities have invested millions of dollars in public funds to
build and maintain the rights-of-way. It The city also recognizes that some persons, by placing
their equipment in the right-of-way and charging the citizens of the city for goods and services
delivered thereby, are using this property held for the public good. Although the services are
often necessary or convenient for the citizens, the persons receive revenue and/or profit through
their use of public property.
(D) The Minnesota Legislature has recognized that it is in the public’s interest that the use
and regulation of rights-of-way be carried on in a fair, efficient, competitively neutral, and
substantially uniform manner while recognizing the regulation must reflect distinct engineering,
construction, operation, maintenance, and public and worker safety requirements and standards
applicable to various users of rights of way. Further, the lLegislature has determined that
because increasing numbers of persons may seek usage of rights-of-way, municipalities such as
the city must be and have been authorized to regulate use of rights-of-way. Consistent with this
mandate, the city has endeavored to model its right-of-way regulations consistent with those of
models enacted or under consideration by municipalities throughout the state. Further, the city
has endeavored to create competitively neutral rights-of-way standards and regulations of
general applicability.
(E) In response to the foregoing facts, the city hereby enacts this chapter relating to right-of-
way management. This chapter imposes reasonable regulations on the placement and
maintenance of equipment facilities currently within its rights-of-way or to be placed therein at
some future time. It is intended to complement the regulatory roles of state and federal
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agencies. Under this chapter, persons disturbing and obstructing the rights-of-way will bear a
fair share of the financial responsibility for the integrity of the city’s rights-of-way. Finally, this
chapter provides for recovery of out-of-pocket and projected costs from persons using the public
rights-of-way.
(F) By enactment of this chapter, the City Council hereby exercises its lawful police power
and common law authority, and all statutory authority which is available to it, including, but not
limited to, the powers conferred on it under M.S. §§ 237.16, 237.162, and 237.163, 237.79,
237.81, and 238.086 (the “Act) and 2017 Session Laws, Chapter 94 amending the Act as they
may be amended from time to time, while preserving all power and authority to further require
franchises from rights-of-way users under M.S. §§ 216B.36, 222.37, 300.03, and 412.11, as they
may be amended from time to time, Minnesota Rules Parts 7819.0050 – 7819.9950 and
Minnesota Rules Chapter 7560 where possible, and other provisions of law. To the extent any
provision of this chapter cannot be interpreted consistently with the Minnesota Rules, that
interpretation most consistent with the Act and other 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. 9756, passed 6-20-2000)
§ 94.02 ELECTION TO MANAGE THE PUBLIC RIGHTS-OF-WAY.
Pursuant to the authority granted to the city under state and federal statutory, administrative, and
common law, the city hereby elects, pursuant to M.S. § 237.163, subd. 2 (b), to manage rights-
of-way within its jurisdiction.
§ 94.02 94.03 DEFINITIONS.
For the purpose of this chapter, the following definitions shall apply unless the context clearly
indicates or requires a different meaning.
ABANDONED FACILITY. A facility no longer in service or physically disconnected from a
portion of the operating facility, or from any other facility, that is in use or still carries service. A
facility is not abandoned unless declared so by the right-of-way user.
ADMINISTRATOR. The City Administrator of the City of Lake Elmo, or the Administrator’s
designee.
APPLICANT. Any person requesting permission to excavate or obstruct a right-of-way.
CITY. The City of Lake Elmo, Minnesota. For purposes of § 94.66 94.65, 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. See M.S. §
237.162, subd. 10.
CONSTRUCTION PERFORMANCE BOND. Any of the following forms of security provided
at permittee’s option:
• Individual project bond;
• Cash deposit;
• Security of a form listed or approved under M.S. § 15.73, subd. 3;
• Letter of credit, in a form acceptable to the city;
• Self-insurance, in a form acceptable to the city;
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• 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. The accelerated depreciation of the right-of-way caused by excavation in
or disturbance of the right-of-way, resulting in the need to reconstruct the right-of-way earlier
than would be required if the excavation did not occur.
DEGRADATION COST. Money paid to the city to cover the cost associated with a decrease
in the useful life of a public right-of-way caused by excavation. The cost to achieve a level of
restoration, subject to Minnesota Rules Part 7819.1100, 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
construction excavation, obstruction, patching, or restoration as established by permit.
DEPARTMENT. The Department of Public Works of the city.
DEPARTMENT INSPECTOR. Any person authorized by the Administrator to carry out
inspections related to the provisions of this chapter.
DISRUPTIVE FEE. The penalty imposed as a result of the adverse impact on the residents of
the city and others who are required to alter travel routes and times resulting from right-of-way
obstructions.
EMERGENCY. A condition that:
(1) Poses a clear and immediate danger to life or health, or of a significant loss of property;
or
(2) Requires immediate repair or replacement of facilities in order to restore service to a
customer.
EQUIPMENT. Any tangible thing asset in any right-of-way used to install, repair, or maintain
facilities in any right-of-way; but shall not include boulevard plantings or gardens planted or
maintained in the right-of-way between a person’s property and the street curb.
EXCAVATE. To dig into or in any way remove or physically disturb or penetrate any part of a
right-of-way, except horticultural practices of penetrating the boulevard area to a depth of less
than 12 inches.
EXCAVATION PERMIT. The permit which, pursuant to this chapter, must be obtained
before a person may excavate in a right-of-way. An excavation permit allows the holder to
excavate that part of the right-of-way described in the permit.
EXCAVATION PERMIT FEE. Money paid to the city by an applicant to cover the costs as
provided in § 94.38 94.39.
FACILITY or FACILITIES. Any tangible asset in the right-of-way required to provide utility
service.
FIVE-YEAR PROJECT PLAN. Shows projects adopted by the city for construction within the
next five years.
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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.
IN. When used in conjunction with “right-of-way,” means over, above, in, within, on, or under
a right-of-way.
LOCAL REPRESENTATIVE. A local person or persons, or designee of the person or
persons, authorized by a registrant to accept service and to make decisions for that registrant
regarding all matters within the scope of this chapter.
MANAGEMENT COST. The actual cost incurred by the city for public rights-of-way
management; including but not limited to costs 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 equipment
during public right-of-way work; determining the adequacy of right-of-way restoration; restoring
work inadequately performed after providing notice and the opportunity to correct the work; and
revoking right-of-way or small wireless facility permits and performing all other tasks required
by this chapter, including other costs the city may incur in managing the provisions of this
chapter. MANAGEMENT COST does 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; M.S. §§ 237.162 or 237.163; as they may be
amended from time to time; or any ordinance enacted under those sections, or the city’s fees and
costs related to appeals taken pursuant to § 94.68 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 by placing equipment described therein on the
right-of-way for the duration specified therein.
OBSTRUCTION PERMIT FEE. Money paid to the city by a registrant permittee to cover the
costs as provided in § 94.38 94.40.
PATCH or PATCHING.
(1) A method of pavement replacement that is temporary in nature.
(2) A patch consists of:
(a) The compaction of the sub-base and aggregate base; and
(b) The replacement, in kind, of the existing pavement for a minimum of 2 feet beyond
the edges of the excavation in all directions.
(3) A patch is considered full restoration only when the pavement is included in the city’s 5
five-year project plan.
PAVEMENT. Any type of improved surface that is within the public right-of-way and that is
paved or otherwise constructed with bituminous, concrete, aggregate, or gravel.
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PERFORMANCE SECURITY. A performance bond, a restoration bond, a letter of credit, or
cash deposit posted to ensure the availability of sufficient funds to assure that right-of-way
excavation and obstruction work is completed in both a timely and quality manner.
PERMIT. Has the meaning given “right-of-way permit” in M.S. § 237.162.
PERMITTEE. Any person to whom a permit to excavate or obstruct a right-of-way has been
granted by the city under this chapter.
PERSON. Any natural or corporate person, business association, or other business entity
including, but not limited to, a partnership, a sole proprietorship, a political subdivision, a public
or private agency of any kind, an utility, a successor or assign of any of the foregoing, or any
other legal entity which has or seeks to have equipment in any right-of-way. An individual or
entity subject to the laws and rules of this state, however organized, whether public or private,
whether domestic or foreign, whether for profit or nonprofit, and whether natural, corporate, or
political.
PROBATION. The status of a person that has not complied with the conditions of this
chapter.
PROBATIONARY PERIOD. One year from the date that a person has been notified in
writing that they have been put on probation.
REGISTRANT. Any person who:
(1) Has or seeks to have its equipment or facilities located in any right-of-way; or
(2) In any way occupies or uses, or seeks to occupy or use, the right-of-way or any place its
facilities or equipment in the right-of-way.
REPAIR. The temporary construction work necessary to make the right-of-way usable for
travel.
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 the commencement of the work.
RESTORATION COST. An amount of money paid to the city by a permittee to cover the cost
achieve the level of restoration according to plates 1 to 13 of Minnesota Public Utilities
Commission rules.
RIGHT-OF-WAY or PUBLIC RIGHT-OF-WAY. The surface and space on, above and
below a public roadway, highway, street, cartway, bicycle lane, and or public sidewalk in which
the city has an interest, including other dedicated rights-of-way for travel purposes and utility
easements of the city. A right-of-way does not include the airwaves above a right-of-way with
regard to cellular or other nonwire telecommunications or broadcast service.
RIGHT-OF-WAY PERMIT. Either the excavation permit or the obstruction permit, or both,
depending on the context, required by this chapter.
RIGHT-OF-WAY USER. (1) A telecommunications right-of-way user as defined by M.S. §
237.162, subd. 4; or (2) a person owning or controlling a facility in the right-of-way that is used
or intended to be used for providing utility service, and who has a right under law, franchise, or
ordinance to use the public right-of-way.
SERVICE or UTILITY SERVICE. Includes but is not limited to:
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(1) Those services provided by a public utility as defined in M.S. § 216B.02, Ssubds. 4 and
6, as it may be amended from time to time;
(2) Telecommunications, pipeline, community antenna television, fire and alarm
communications, water, electricity, light, heat, cooling energy, or power services Services of a
telecommunications right-of-way user, including transporting of voice or data information;
(3) The services provided by a corporation organized for the purposes set forth in M.S. § 30,
as it may be amended from time to time Services of a cable communications system as defined in
M.S. Ch. 238;
(4) The services provided by a district heating or cooling system Natural gas or electric
energy or telecommunications services provided by the city;
(5) Cable communications systems as defined in M.S. Ch. 238 Services provided by a
cooperative electric association organized under M.S. Ch. 308A; and
(6) A telecommunication right-of-way user Water, and sewer, including service laterals,
steam, cooling, or heating services.
SERVICE LATERAL. An underground facility that is used to transmit, distribute, or furnish
gas, electricity, communications, or water from a common source to an end-use customer. A
service lateral is also an underground facility that is used in the removal of wastewater from a
customer’s premises.
SMALL WIRELESS FACILITY. A wireless facility that meets both of the following
qualifications:
(1) Each antenna is located inside an enclosure of no more than 6 cubic feet in
volume or could fit within such an enclosure; and
(2) All other wireless equipment associated with the small wireless facility provided
such equipment is, in aggregate, no more than 28 cubic feet in volume, not including electric
meters, concealment elements, telecommunications demarcation boxes, battery backup power
systems, grounding equipment, power transfer switches, cutoff switches, cable, conduit, vertical
cable runs for the connection of power and other services, and any equipment concealed from
public view within or behind an existing structure or concealment.
Note: M. S. § 237.162, subd. 11.
SUPPLEMENTARY APPLICATION. An application made to excavate or obstruct more of
the right-of-way than allowed in, or to extend, a permit that had already been issued.
TELECOMMUNICATION RIGHTS-OF-WAY USER. A person owning or controlling a
facility in the public right-of-way, or seeking to own or control a facility in the public right-of-
way, that is used or is intended to be used for providing wireless service, or transporting
telecommunication or other voice or data information. For purposes of this chapter, a cable
communication system defined and regulated under M.S. Ch. 238, as it may be amended from
time to time, and telecommunication activities related to providing natural gas or electric energy
services, a public utility as defined in M. S. § 216B.02, a municipality, a municipal gas or power
agency organized under M. S. Chaps. 453 and 453A, or a cooperative electric association
organized under M. S. Chap. 308A, are not telecommunications right-of-way users for the
purpose of this chapter except to the extent such entity is offering wireless service.
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UNUSABLE EQUIPMENT. Equipment in the right-of-way which has remained unused for 1
year and for which the registrant is unable to provide proof that it has either a plan to begin using
it within the next 12 months or a potential purchaser or user of the equipment.
UTILITY POLE. A pole that is used in whole or in part to facilitate telecommunications or
electric service.
Note: M. S. §237.162, subd. 12.
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.
Note: M. S. § 237.162, subd. 13.
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.
Note: M. S. § 237.162, subd. 16
(Ord. 9756, passed 6-20-2000)
§ 94.03 94.04 ADMINISTRATION.
The Administrator is the principal city official responsible for the administration of the right-
of-way permits, and the regulations related thereto. The Administrator may delegate any or all
of the duties hereunder.
(Ord. 9756, passed 6-20-2000)
§ 94.04 94.05 FRANCHISE; FRANCHISE SUPREMACY.
The city may, in addition, to the requirements of this chapter, require that any person, which
has or seeks to have equipment located in any right-of-way, obtain a franchise for the full extent
permitted by law, now or hereinafter enacted. The terms of any franchise which are in direct
conflict with any provision of this chapter, whether granted prior or subsequent to enactment of
this chapter, shall control and supersede the conflicting terms of this chapter, provided, however,
that requirements relating to insurance, bonds, penalties, security funds, letters of credit,
indemnification, or any other security in favor of the city may be cumulative in the sole
determination of the city or unless otherwise negotiated by the city and the franchise grantee.
All other terms of this chapter shall be fully applicable to all persons, whether franchised or not.
(Ord. 9756, passed 6-20-2000)
§ 94.05 94.06 RESERVATION OF REGULATORY AND POLICE POWERS.
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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.
(Ord. 9756, passed 6-20-2000)
§ 94.06 94.07 SEVERABILITY; REVOCABLE PERMITS.
If any subchapter, section, division, 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, the portion shall be deemed a separate, distinct, and independent provision and the
holding shall not affect the validity of the remaining portions thereof. 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 the 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 60-days written notice to the other. The requirements and conditions of the
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. If a permit, right, or registration shall be considered a revocable permit as
provided herein, the permittee must acknowledge the authority of the City Council to issue the
revocable permit and the power to revoke it. 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.
(Ord. 9756, passed 6-20-2000)
REGISTRATION
§ 94.20 REGISTRATION AND RIGHT-OF-WAY OCCUPANCY.
(A) Registration. Each person who occupies, uses, or seeks to occupy or use, the right-of-
way or any equipment or facilities in or on the right-of-way, including persons with installation
and maintenance responsibilities by lease, sublease, or assignment, or who has, or seeks to have,
equipment in any right-of-way must register with the Administrator city. Registration will
consist of providing application information and paying a registration fee.
(B) Registration prior to work. No person may construct, install, repair, remove, relocate, or
perform any other work on or use any equipment facilities or any part thereof in any right-of-way
without first being registered with the Administrator city.
(C) Exceptions. Nothing herein shall be construed to repeal or amend the provisions of a city
ordinance permitting persons to plant or maintain boulevard plantings or gardens in the area of
the right-of-way between their property and the street curb. Except as hereinafter provided,
persons planting or maintaining boulevard plantings or gardens shall not be deemed to use or
occupy the right-of-way, and shall not be required to obtain any permits or satisfy any other
requirements for planting or maintaining the boulevard plantings or gardens under this chapter.
However, excavations deeper than 12 inches are subject to the permit requirements of § 94.35.
Nothing herein relieves a person from complying with the provisions of M.S. § 216D, as it may
be amended from time to time, the “1 call Gopher One Call" lLaw.”
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.21 REGISTRATION INFORMATION.
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(A) Information required. The information provided to the Administrator city at the time of
registration shall include, but not be limited to:
(1) Each registrant’s name, Gopher One-Call registration certificate number, address and e-
mail address, if applicable, and telephone and facsimile numbers;
(2) The name, address and e-mail address, if applicable, and telephone and facsimile
numbers of a local representative. The local representative or designee shall be available at all
times. Current information regarding how to contact the local representative in an emergency
shall be provided at the time of registration;
(3) A certificate of insurance shall be on a form approved by the city:
(a) Verifying that an insurance policy has been issued to the registrant by an insurance
company licensed to do business in the State of Minnesota, or that registrant is covered by self-
insurance which the Administrator determines to provide the city with protections equivalent to
that of a Minnesota licensed insurance company, legally independent from the registrant;
(b) Verifying that the registrant is insured against claims for personal injury, including
death, as well as claims for property damage arising out of the use and occupancy of the right-of-
way by the registrant, its officers, agents, employees, and permittees, and placement and use of
facilities and equipment in the right-of-way by the registrant, its officers, agents, employees, and
permittees, and that registrant’s insurance coverage includes, but is not limited to, protection
against liability arising from completed operations, damage of underground equipment facilities,
and collapse of property;
(c) Naming the city as an additional insured as to whom the coverages required herein are
in force and applicable and for whom defense will be provided as to all the coverages;
(d) Requiring that the Administrator city be notified 30 days in advance of cancellation of
the policy or material modification of a coverage term; and
(e) Indicating comprehensive liability coverage, automobile liability coverage, workers’
compensation and umbrella coverage established by the Administrator city in amounts sufficient
to protect the city and carry out the purposes and policies of this chapter.
(4) The city may require a copy of the actual insurance policies;
(5) If the person 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;
(6) A copy of the person’s certificate of authority from the Minnesota Public Utilities
Commission or other authorization or approval from the applicable state or federal agency to
lawfully operate, where the person is lawfully required to have such authorization or approval
from said commission the certificate from the Commission or other state or federal agency ; and
(7) The other information as the city may require.
(B) Notice of changes. The registrant shall keep all of the information listed above current at
all times by providing to the Administrator city information as to changes within 15 days
following the date on which the registrant has knowledge of any change.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.22 REPORTING OBLIGATIONS.
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(A) Operations. Each registrant shall, at the time of registration and by December 1 of each
year, file a construction and major maintenance plan for underground facilities with the
Administrator city.
(1) The plan shall be submitted by using a format designated by the Administrator city and
shall contain the information determined by the Administrator city to be necessary to facilitate
the coordination and reduction in the frequency of excavations and obstructions of rights-of-way.
(2) The plan shall include, but not be limited to, the following information:
(a) The locations and the estimated beginning and ending dates of all projects to be
commenced during the next calendar year (a “next-year project”); and
(b) To the extent known, Tthe tentative locations and estimated beginning and ending
dates for all projects contemplated for the 5 five years following the next calendar year (a “5
five-year project”).
(3) The term “project” in this chapter shall include both next-year projects and 5-year
projects.
(4) By January 1 of each year, the Administrator city will have available for inspection in
the Administrator’s office a composite list of all projects of which the Administrator city has
been informed in the annual plans. All registrants are responsible for keeping themselves
informed of the current status of this list.
(5) Thereafter, by February 1, each registrant may change any project in its list of next-year
projects, and must notify the Administrator city and all other registrants of all the changes in the
list. Notwithstanding the foregoing, a registrant may at any time join in a next-year project of
another registrant listed by the other registrant.
(B) Additional next-year projects. Notwithstanding the foregoing, the Administrator city will
not deny an application for a right-of-way permit for failure to include a project in a plan
submitted to the city if the registrant has used commercially reasonable efforts to anticipate and
plan for the project.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
PERMITS
§ 94.35 RIGHT-OF-WAY PERMIT REQUIREMENT.
(A) Right-of-way permit required. Except as otherwise provided in the city’s regulations, no
person 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
Administrator city and posting of the appropriate construction performance security bond with
the City Administrator city.
(1) Excavation permit. An excavation permit is required by a registrant to excavate that part
of the right-of-way described in the permit and to hinder free and open passage over the specified
portion of the right-of-way by placing equipment described therein, to the extent and for the
durations specified therein.
(2) Obstruction permit. An obstruction permit is required by 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 durations specified therein. An obstruction
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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.
Note: M. S. §237.163, subd. 13.
(B) Right-of-way permit extensions. No person may excavate or obstruct the right-of-way
beyond the date or dates specified in the permit unless the person makes a supplementary
application for another right-of-way permit before the expiration of the initial permit, and a new
right-of-way permit, or right-of-way permit extension, is granted.
(C) Delay penalty. In accordance with Minnesota Rule Part 7819.1000, subpart 3 and
Nnotwithstanding the provisions of this section, the city shall establish and impose a delay
penalty for unreasonable delays in right-of-way excavation, obstruction, patching, or restoration.
The delay penalty shall be established from time to time by City Council resolution.
(D) Right-of-way permit display. Right-of-way permits issued under this chapter shall be
conspicuously displayed at all times at the indicated work site and shall be available for
inspection by the Administrator city.
(E) Performance security Construction performance bond. The construction Pperformance
security bond shall be in an amount determined in the city’s sole discretion, sufficient to serve as
security for the full and complete performance of permittee’s obligation under this chapter,
including any costs, expenses, damages, or loss the city pays or incurs because of any failure to
comply with this chapter or any other applicable law, regulation, or standard. During the period
of construction, repair, or restoration of rights-of-way or equipment facilities within the rights-
of-way, the construction performance bond security shall be in an amount sufficient to cover
125% of the estimated cost of the work, as documented by the person proposing to perform the
work, or in a lesser amount as may be determined by the Administrator city, taking into account
the amount of equipment facilities in the right-of-way, the location and method of installation of
the equipment facilities, the conflict or interference of the equipment facilities with the
equipment facilities of other persons, and the purposes and policies of this chapter. Sixty days
after completion of the work, the construction performance bond security may be reduced in the
sole determination of the city.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.36 APPLICATION FOR A RIGHT-OF-WAY PERMIT.
(A) Applications for a right-of-way permit is made to the city through the Administrator.
(B) 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 Administrator city pursuant to this chapter;
(2) Submissions of a completed permit application form, including all required attachments,
and scaled drawings showing the location and area of the proposed project and the location of all
existing and proposed equipment facilities;
(3) Payment of all money due to the city for:
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(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 applicant’s
prior excavations or obstructions of the rights-of-way or any emergency actions taken by the
city; and/or
(d) Franchise fees or other charges, if applicable.
(4) Payment of disputed amounts due the city by posting performance security or depositing
in a city-approved escrow account an amount equal to at least 110125% of the amount owing;
and
(5) When an excavation permit is requested for purposes of installing additional equipment
facilities, and the posting of a restoration construction performance bond for the additional
equipment facilities is insufficient, the posting of an additional or larger restoration construction
performance bond for the additional equipment facilities may be required.
(6) A Storm Water Management Plan and/or an Erosion and Sediment Control Plan if
applicable as specified in § 150.283.
(Ord. 9756, passed 6-20-2000; Am. Ord. 08-024, passed 4-20-2010)
§ 94.37 ISSUANCE OF PERMIT; CONDITIONS.
(A) Permit issuance. If the Administrator determines that the applicant has satisfied the
requirements of this chapter, the Administrator city may shall issue a permit.
(B) Conditions. The Administrator city may impose reasonable conditions upon the issuance
of the permit and the performance of the applicant thereunder to protect the public health, safety,
and welfare to ensure the structural integrity of the right-of-way, to protect the property and
safety of other users of the right-of-way, and to minimize the disruption and inconvenience to the
traveling public. In addition, a permittee shall comply with all requirements of local, state and
federal laws, including but not limited to M. S. §§216D.01-.09 (Gopher One Call Excavation
Notice System) and Minnesota Rules Chapter 7560.
(1) Small Wireless Facility Conditions. In addition to subdivision 2, 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) 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 50 feet in height without the city’s written authorization, provided that the city
may impose a lower height limit in the applicable permit to protect the public health,
safety, and welfare or to protect the right-of-way and its current use, and further provided
that a registrant may replace an existing wireless support structure exceeding 50 feet in
height with a structure of the same height subject to such conditions or requirements as
may be imposed in the applicable permit.
(c) No wireless facility may extend more than 10 feet above its wireless support
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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.
Note: M. S.§ 237.163, subd. 3b.
(C) Small Wireless Facility Agreement. A small wireless facility shall only be collocated on a
small wireless support structure owned or controlled by the city, or any other city asset in the
right-of-way, after the applicant has executed a standard small wireless facility collocation
agreement with the city. The standard collocation agreement may require payment of the
following:
(1) Up to $150 per year for rent to collocate on the city structure;
(2) $25 per year for maintenance associated with the collocation;
(3) A monthly fee for electrical service as follows:
(a) $73 per radio node less than or equal to 100 maximum watts;
(b) $182 per radio node over 100 maximum watts; or
(c) 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.
Note: M. S.§ 237.163. Subd. 6(g).
§ 94.39 ACTION ON SMALL WIRELESS FACILITY PERMIT APPLICATIONS.
(A) Deadline for Action. The city shall approve or deny a small wireless facility permit
application within 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 15 small wireless facilities, or a
greater number if agreed to by the city, provided that all small wireless facilities in the
application:
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(1) are located within a two-mile radius;
(2) consist of substantially similar equipment; and
(3) are to be placed on similar types of wireless support structures
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.
(C) Tolling of Deadline. The 90-day deadline for action on a small wireless facility permit
application may be tolled if:
(1) The city receives applications from one or more applicants seeking approval of
permits for more than 30 small wireless facilities within a seven-day period. In such case, the
city may extend the deadline for all such applications by 30 days by informing the affected
applicants in writing of such extension.
(2) The applicant fails to submit all required documents or information and the city
provides written notice of incompleteness to the applicant within 30 days of receipt of the
application. Upon submission of additional documents or information, the city shall have 10 days
to notify the applicant in writing of any still-missing information.
(3) The city and a small wireless facility applicant agree in writing to toll the review
period.
Note: M. S.§ 237.163. subd. 3c
(Ord. 9756, passed 6-20-2000)
§ 94.38 94.40 RIGHT-OF-WAY PERMIT FEES.
(A) Excavation permit fee. The excavation permit fee shall be established by the
Administrator city in an amount sufficient to recover the following costs:
(1) The city management costs; and
(2) Degradation cost, if applicable.
(B) Obstruction permit fee. The obstruction permit fee shall be established by the
Administrator city and shall be in an amount sufficient to recover the city management costs.
(C) Small wireless facility permit fee. The city shall impose a small wireless facility permit fee
in an amount sufficient to recover:
(1) management costs, and;
(2) city engineering, make-ready, and construction costs associated with collocation of small
wireless facilities.
(C) (D) Payment of permit fees. No excavation permit or obstruction permit shall be issued
without payment of excavation or obstruction permit fees. The city may allow applicant to pay
the fees within 30 days of billing.
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(D) (E) Non-refundable. Permit fees that were paid for a permit that the Administrator city has
revoked for a breach as stated in § 94.59 are not refundable.
(F) 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.
(Ord. 9756, passed 6-20-2000)
§ 94.39 94.41 RIGHT-OF-WAY PATCHING AND RESTORATION.
(A) Timing.
(1) The work to be done under the excavation permit, and the patching and/or 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 extraordinary circumstances
beyond the control of the permittee or when work was prohibited as unseasonal or unreasonable
under § 94.42 94.44.
(2) In addition to repairing its own work, the permittee must restore the general area of the
work, and the surrounding areas, including the paving and its foundations, to the same condition
that existed before the commencement of the work and must inspect the area of the work and use
reasonable care to maintain the same condition for 36 months thereafter.
(B) Patch and restoration. Permittee shall patch its own work. The city may choose either to
have the permittee restore the right-of-way or the city shall restore the right-of-way itself.
(1) City restoration. If the city restores the right-of-way, permittee shall pay the costs
thereof within 30 days of billing. If, during the 36 months following the restoration, the
pavement settles due to permittee’s improper backfilling, the permittee shall pay to the city,
within 30 days of billing, the cost of repairing the pavement.
(2) Permittee restoration. If the permittee restores the right-of-way, it shall at the time of
application for an excavation permit, post a construction performance bond security in
accordance with the provisions of Minnesota Rule Part 7819.3000 in an amount determined by
the Administrator to be sufficient to cover the cost of restoring the right-of-way to its pre-
excavation condition and reasonable, directly related costs that the city estimates will be incurred
if the right-of-way user fails to perform under the bond. Litigation costs and attorney fees are
not direct costs to be included in calculating the amount of the bond. If, 36 24 months after
completion of the restoration of the right-of-way, the Administrator city determines that the
right-of-way has been properly restored, the surety on the construction performance bond
security shall be released.
(C) Standards. The permittee shall perform repairs excavation, backfilling, patching, and
restoration according to the standards and with the materials specified by the Administrator city
and shall comply with Minnesota Rule Part 7819.1100. The Administrator city shall have the
authority to prescribe the manner and extent of the restoration, and may do so in written
procedures of general application or on a case-by-case basis. The Administrator city in
exercising this authority 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; the character of the neighborhood
surrounding the right-of-way;
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(3) The pre-excavation condition of the right-of-way; 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 permittee 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 or restoration would be effective in slowing
the depreciation of the right-of-way that would otherwise take place.
(D) Guarantees. By choosing to restore the right-of-way itself, the permittee guarantees its
work and shall maintain it for 36 months following its completion. During this 36-month period,
it shall, upon notification from the Administrator city, correct all restoration work to the extent
necessary, using the method required by the Administrator city. The work shall be completed
within 5 five calendar days of the receipt of the notice from the Administrator city, not including
days during which work cannot be done because of the circumstances constituting force majeure
or days when work is prohibited as unseasonal or unreasonable under § 94.42 94.44.
(E) Failure to restore. If the permittee fails to restore the right-of-way in the manner and to
the condition required by the Administrator city, or fails to satisfactorily and timely complete all
restoration required by the Administrator city, the Administrator city at its option may do the
work. In that event the permittee shall pay to the city, within 30 days of billing, the cost of
restoring the right-of-way. If permittee fails to pay as required, the city may exercise its rights
under the restoration construction performance bond.
(F) 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 patching and the degradation fee shall not include the costs to accomplish these
responsibilities.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.40 94.42 JOINT APPLICATIONS.
(A) Joint application. Registrants may jointly apply for permits to excavate or obstruct the
right-of-way at the same time and place.
(B) With city projects. Registrants who join in a scheduled obstruction or excavation
performed by the city, whether or not it is a joint application by 2 two or more registrants or a
single application, are not required to pay the obstruction and degradation portions of the permit
fee, but a permit would still be required.
(C) Shared fees. 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 or excavation
permit fee. In order to obtain a joint permit, Rregistrants must agree among themselves as to the
portion each will pay and indicate the same on their applications.
(Ord. 9756, passed 6-20-2000)
§ 94.41 94.43 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 which determines that an area greater than that
specified in the permit must be obstructed or excavated must before working in that greater area
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make application for a permit extension and pay any additional fees required thereby, and be
granted a new permit or permit extension.
(B) 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.
(Ord. 9756, passed 6-20-2000)
§ 94.42 94.44 OTHER OBLIGATIONS.
(A) Compliance with other laws. Obtaining a right-of-way permit does not relieve the
permittee of its duty to obtain all other necessary permits, licenses, and authority and to pay all
fees required by any other the city, or other applicable county, state, or federal rules, laws, or
regulations. A permittee shall comply with all requirements of local, state, and federal laws,
including M.S. § 216D.01-09, as it may be amended from time to time (“1 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, and with the approval of the Administrator
city, no right-of-way obstruction or excavation may be done when seasonally prohibited or when
conditions are unreasonable for the work.
(C) Interference with right-of-way.
(1) 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.
(2) 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.
(3) The loading or unloading of trucks next to a permit area is prohibited unless specifically
authorized by the permit.
(D) 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 M.S. Chapter 216D and Minnesota Rules
Chapter 7560 and shall requiring potholing or open cutting over existing underground utilities
before excavating, as determined by the Administrator.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.43 94.45 DENIAL OR REVOCATION OF PERMIT.
(A) Reasons for denial. The Administrator city may deny a permit for failure to meet the
requirements and conditions of this chapter, or if the Administrator city determines that the
denial is necessary to protect the health, safety, and welfare of the public, or if necessary to
protect the right-of-way and its current use.
(B) Procedural requirements. The denial or revocation of a permit must be made in writing
and must document the basis for denial. The city must notify the applicant or right-of-way
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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 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 30 days after resubmission.
Note: M. S.§ 237.163. subds. 4(c) and 5(f).
(Ord. 9756, passed 6-20-2000)
REGULATIONS AND PROCEDURES
§ 94.55 INSTALLATION REQUIREMENTS.
The excavation, backfilling, patching, and restoration, and all other work performed in the
right-of-way, shall be done in conformance with engineering standards adopted by the P.U.C.
Minnesota Rules Parts 7819.1100 and 7819.5000 and or other applicable local requirements,
insofar as they are not inconsistent with P.U.C. rules M.S. §§ 237.162 and 237.163. Installation
of service laterals shall be performed in accordance with Minnesota Rules Chapter 7560 and this
Chapter. Service lateral installation is further subject to those requirements and conditions set
forth by the city in the applicable permits or agreements referenced in § 94.60, subdivision (B) of
this Chapter.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.56 INSPECTION.
(A) Notice of completion. When the work under any permit hereunder is completed, the
permittee shall furnish a completion certificate in accordance with P.U.C. rules Minnesota Rule
Part 7819.1300.
(B) Site inspection. Permittee shall make the work-site available to the Administrator 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.
(C) Authority of Administrator.
(1) At the time of inspection, the Administrator 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 Administrator may issue an order to the permittee for any work which does not
conform to the terms of the permit or other applicable standards, conditions or codes. The
Oorder shall state that failure to correct the violation will be cause for revocation of the permit.
Within 10 days after issuance of the order, the permittee shall present proof to the Director
Administrator that the violation has been corrected. If the proof has not been presented within
the required time, the Director Administrator may revoke the permit pursuant to § 94.59.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.57 WORK DONE WITHOUT A PERMIT.
(A) Emergency situations.
(1) Each registrant shall immediately notify the Administrator of any event regarding its
equipment facilities which it considers to be an emergency. The registrant may proceed to take
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whatever actions are necessary to respond to the emergency. Excavators’ notification to Gopher
State One Call regarding an emergency situation does not fulfill this requirement. Within 2 two
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) (a) If the Administrator city becomes aware of an emergency regarding a registrant’s
equipment facilities, the Administrator city may will attempt to contact the local representative
of each registrant affected, or potentially affected, by the emergency.
(b) In any event, the Administrator city may take whatever action it deems necessary to
respond to the emergency, the cost of which shall be borne by the registrant whose equipment
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 the permit, pay double all the other fees
required by the Legislative City Code, deposit with the Administrator city the fees necessary to
correct any damage to the right-of-way and comply with all of the requirements of this chapter.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.58 SUPPLEMENTARY NOTIFICATION.
If the obstruction or excavation of the right-of-way begins later or ends sooner than the date
given on the permit, permittee shall notify the Administrator city of the accurate information as
soon as this information is known.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.59 REVOCATION OF RIGHT-OF-WAY PERMITS.
(A) 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 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 maintain the required bonds and/or insurance;
(5) The failure to complete the work in a timely manner, unless a permit extension is
obtained or unless the failure to complete the work is due to reasons beyond the permittee’s
control; or
(6) The failure to correct, in a timely manner, work that does not conform to a condition
indicated on an order issued pursuant to § 94.56.
(B) Written notice of breach. If the Administrator 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 Administrator city shall make a written demand upon the
permittee to remedy the violation. The demand shall state that continued violations may be
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cause for revocation of the permit. Further, a substantial breach, as stated above, will allow the
Administrator city, at his or her its discretion, to place additional or revised conditions on the
permit to mitigate and remedy the breach.
(C) Response to notice of breach.
(1) Within 24 hours of receiving notification of the breach, permittee shall contact provide
the Administrator city with a plan, acceptable to the Administrator city, for its correction that
will cure the breach.
(2) Permittee's failure to so contact the Administrator city, or the permittee’s failure to
timely submit an acceptable plan, or permittee’s failure to reasonably implement the approved
plan, shall be cause for immediate revocation of the permit.
(3) Further, permittee’s failure to so contact the city, or permitee’s failure to submit an
acceptable plan, or permittee’s failure to reasonably implement the approved plan, shall
automatically place the permittee on probation for 1 one full year.
(D) Cause for probation. From time to time, the Administrator city may establish a list of
conditions of the permit, which if breached will automatically place the permittee on probation
for 1 one full year, such as, but not limited to, working out of the allotted time period or working
on right-of-way grossly outside of the permit authorization.
(E) Automatic revocation. If a permittee, while on probation, commits a breach as outlined
above, permittee's permit will automatically be revoked and permittee will not be allowed further
permits for 1 one full year, except for emergency repairs.
(F) 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’s fees incurred in connection with the revocation.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.60 MAPPING DATA.
(A) Information required. Each year, registrant and permittee shall provide mapping
information required by the Administrator city in accordance with P.U.C. rules Minnesota
Rules Parts 7819.4000 and 7819.4100. Within 90 days following completion of any work
pursuant to a permit, the permittee shall provide the Administrator with 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
Administrator. Failure to provide maps and drawings pursuant to this subsection 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 Part 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
Administrator reasonably requires it. Permittees or their subcontractors shall submit to the
Administrator evidence satisfactory to the Administrator of the installed service lateral
locations. Compliance with this subdivision and with applicable Gopher State One Call
law and Minnesota Rules governing service laterals installed after December 31, 2005
shall be a condition of any city approval necessary for:
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(1) payments to contractors working on a public improvement project including those
under M. S. Chapter 429
(2) city approval under development agreements or other subdivision or site plan
approval under M. S. Chapter 462. The Administrator 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 future permits to the offending
permittee or its subcontractors.
(B) Trade secret information. At the request of any registrant, any information requested by
the Administrator, which qualifies as a "trade secret" under M.S. § 13.37(b), as it may be
amended from time to time, shall be treated as trade secret information as detailed therein.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.61 LOCATION OF FACILITIES.
Placement, location, and relocation of facilities must comply with the Act, with other applicable
law, and with Minnesota Rules Parts 7819.3100, 7819.5000 and 7819.5100, to the extent the
rules do not limit authority otherwise available to cities.
(A) Undergrounding. Unless otherwise permitted by an existing franchise, or other
agreement, or M.S. § 216B.34, as it may be amended from time to time, or unless existing
above-ground facilities are repaired or replaced, new construction and the installation of new
facilities and replacement of old facilities shall be done underground or contained within
buildings or other structures in conformity with applicable codes.
(B) Corridors.
(1) The Administrator city may assign specific corridors 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 Administrator city expects will someday be located within the right-of-
way. All excavation, obstruction, or other permits issued by the Administrator city involving the
installation or replacement of facilities shall designate the proper corridor for the facilities at
issue.
(2) Any registrant whose facility is in the right-of-way in a position at variance with the
corridors established by the Administrator city shall, no later than at the time of the next
reconstruction or excavation of the area where the facility is located, move that facility to its
assigned position within the right-of-way, unless this requirement is waived by the Administrator
city for good cause shown, upon consideration of the such factors as the remaining economic life
of the facilities facility, public safety, customer service needs, and hardship to the registrant.
(C) Nuisance.
(1) One year after the passage of this chapter, any facility found in a right-of-way that has
not been registered shall be deemed to be a nuisance.
(2) The city may exercise any remedies or rights it has at law or in equity, including, but not
limited to, abating the nuisance or taking possession of the facility and restoring the right-of-way
to a useable condition.
(D) Limitation of space. To protect health, and safety, and welfare, or when necessary to
protect the right-of-way and its current use, the Administrator city shall have the power to
prohibit or limit the placement of new or additional facilities within the right-of-way if there is
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insufficient space to accommodate all of the requests of registrants or persons to occupy and use
the right-of-way. In making the decisions, the Administrator 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’s 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 equipment 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.
(Ord. 9756, passed 6-20-2000)
§ 94.62 RELOCATION OF FACILITIES.
(A) (1) A registrant right-of-way user must promptly and at its own expense, with due regard
for seasonal working conditions, permanently remove and relocate its equipment and facilities in
the right-of-way whenever the Administrator requests the removal and relocation it is necessary
to prevent interference, and not merely for convenience of the city, and shall restore the right-of-
way to the same condition it was in prior to the removal or relocation.
(2) The Administrator city may make the request to a right-of-way user to remove and
relocate its facilities to prevent interference by the company's equipment or facilities with when
in connection with:
(a) A present or future city use of the right-of-way for a public project;
(b) A public improvement undertaken by the city;
(c) An economic development project in which the city has an interest or investment;
(d) (b) When the public health, and safety, and welfare require it; or
(e) (c) When necessary to prevent interference with tThe safety and convenience of
ordinary travel over the right-of-way.
(B) Notwithstanding the foregoing, a person right-of-way user shall not be required to remove
or relocate its equipment facilities from any right-of-way which has been vacated in favor of a
non-governmental entity unless and until the reasonable costs thereof are first paid to the person
therefor right-of-way user.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.63 PRE-EXCAVATION FACILITY AND FACILITIES LOCATION.
In addition to complying with the requirements of M.S. § 216D.01-09 (“1One-Call Excavation
Notice System”), as it may be amended from time to time, before the start date of any right-of-
way excavation, each registrant who has facilities or equipment in the area to be excavated shall
mark the horizontal and approximate vertical placement of all the equipment and facilities. Any
registrant whose equipment or facilities is are less than 20 inches below a concrete or asphalt
surface shall notify and work closely with the excavation contractor to establish the exact
location of its equipment and facilities and the best procedure for excavation.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.64 DAMAGE TO OTHER FACILITIES.
(A) When the city does work in the right-of-way and finds it necessary to maintain, support,
or move a registrant’s equipment facilities to protect it, the city shall notify the local
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representative as early as is reasonably possible. The costs associated therewith will be billed to
that registrant and must be paid within 30 days from the date of billing.
(B) (1) Each registrant shall be responsible for the cost of repairing any equipment facilities
in the right-of-way which it or its equipment facilities damages.
(2) Each registrant shall be responsible for the cost of repairing any damage to the
equipment facilities of another registrant caused during the city’s response to an emergency
occasioned by that registrant’s equipment facilities.
(Ord. 9756, passed 6-20-2000)
§ 94.65 RIGHT-OF-WAY VACATION.
(A) Reservation of right. If the city vacates a right-of-way which contains the equipment
facilities of a registrant, and if the vacation does not require the relocation of a registrant or
permittee’s equipment facilities, the city shall, except when it would not be in the public interest,
reserve, to and for itself and all registrants right-of-way users having equipment facilities in the
vacated right-of-way, the right to install, maintain, and operate any equipment facilities in the
vacated right-of-way and to enter upon the right-of-way at any time for the purpose of
reconstructing, inspecting, maintaining, or repairing the same.
(B) Relocation of facilities. If the vacation requires the relocation of registrant or permittee
facilities;, payment of the relocation costs must be determined as follows: and (1) if the vacation
proceedings are initiated by the registrant or permittee right-of-way user, the registrant or
permittee right-of-way user must pay the relocation costs; or (2) if the vacation proceedings are
initiated by the city for a public project, the registrant or permittee right-of-way user must pay
the relocation costs unless otherwise agreed to by the city and the registrant or permittee right-of-
way user; or (3) if the vacation proceedings are initiated for the purposes of benefiting by a
person or persons other than the registrant or permittee right-of-way user, the other benefited
person or persons must pay the relocation costs.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.66 INDEMNIFICATION AND LIABILITY.
(A) By registering with the Administrator city, or by accepting a permit under this chapter, a
registrant or permittee agrees as follows to defend and indemnify the city in accordance with the
provisions of Minnesota Rule Part 7819.
(B) (1) Limitation of liability. By accepting a registration or granting a right-of-way permit,
the city does not assume any liability for injuries to persons, damage to property, or loss of
service claims by parties other than the registrant, or for claims or penalties of any sort resulting
from the installation, presence, maintenance, or operation of equipment by registrants or
activities of registrants.
(2) Indemnification.
(a) A registrant or permittee shall indemnify, keep, and hold the city free and harmless
from any and all liability on account of injury to persons or damage to property occasioned by
the issuance of permits or by the construction, maintenance, repair, inspection, or operation of
registrant's or permittee's facilities located in the right-of-way.
(b) 1. The city shall not be indemnified for losses or claims occasioned through its own
negligence except for losses or claims arising out of or alleging the city's negligence as to the
issuance of permits or inspections to ensure permit compliance.
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2. The city shall not be indemnified if the injury or damage results from the performance
of a proper manner of acts which the registrant or permittee reasonably believes will cause injury
or damage, and the performance is nevertheless ordered or directed by the city after receiving
notice of the registrant's or permittee's determination.
(B) Defense.
(a) If a suit is brought against the city under circumstances where the registrant or
permittee is required to indemnify, the registrant or permittee, at its sole cost and expense, shall
defend the city in the suit if written notice of the suit is properly given to the registrant or
permittee within a period in which the registrant or permittee is not prejudiced by the lack or
delay of notice.
(b) If the registrant or permittee is required to indemnify and defend, it shall thereafter
have control of the litigation, but the registrant or permittee may not settle the litigation without
the consent of the city. Consent will not be unreasonably withheld.
(c) This part is not as to third-parties, a waiver of any defense, immunity, or damage
limitation otherwise available to the city.
(d) In defending an action on behalf of the city, the registrant or permittee is entitled to
assert in an action every defense, immunity, or damage limitation that the city could assert in its
own behalf.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.67 ABANDONED AND UNUSABLE EQUIPMENT.
(A) Discontinued operations. A registrant who has determined to discontinue all or a portion
of its operations in the city must either:
(1) Provide information satisfactory to the Administrator city that the registrant’s
obligations for its equipment facilities in the right-of-way under this chapter have been lawfully
assumed by another registrant; or
(2) Submit to the Administrator city a proposal and instruments for transferring ownership
of its equipment facilities to the city. If a registrant proceeds under this clause, the city may, at
its option:
(a) Purchase the equipment;
(b) Require the registrant, at its own expense, to remove it; or
(c) Require the registrant to post a bond in an amount sufficient to reimburse the city for
reasonably anticipated costs to be incurred in removing the equipment.
(B) Abandoned equipment. Equipment of a registrant who fails to comply with § 94.68, and
which, for 2 years, remains unused shall be deemed to be abandoned. Abandoned equipment is
deemed to be a nuisance. The city may exercise any remedies or rights it has at law or in equity,
including, but not limited to, abating the nuisance taking possession of the equipment and
restoring it to a useable condition; or requiring removal of the equipment by the registrant, or the
registrant's successor in interest.
(C) (B) Removal. Any registrant who has unusable and abandoned equipment facilities in any
right-of-way shall remove it from that right-of-way during the next scheduled if required in
conjunction with other right-of-way repair, excavation, or construction, unless this requirement is
waived by the Administrator city.
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(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.68 APPEALS.
(A) A right-of-way user that:
(1) Has been denied registration;
(2) Has been denied a permit;
(3) Has had a permit revoked; or
(4) Believes that the fees imposed are not in conformity with M. S. §237.163, subd. 6
invalid, or
(5) Disputes a determination of the Administrator regarding § 94.59, subd. (B) of this
chapter
may have denial, revocation, or fee imposition reviewed, upon written request, by the City
Council. The City Council shall act on a timely written request at its next regularly scheduled
meeting, provided the right-of-way user has submitted its appeal with sufficient time to include
the appeal as a regular agenda item. 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.
(B) Upon affirmation by the City Council of the denial, revocation, or fee imposition, the
right-of-way user shall have the rights to have the matter resolved by binding arbitration.
Binding arbitration must be before an arbitrator agreed to by both the City Council and the right-
of-way user. If the parties cannot agree on an arbitrator, the matter must be resolved by a 3-
person arbitration panel made up of 1 arbitrator selected by the city, 1 arbitrator selected by the
right-of-way user, and 1 selected by the other 2 arbitrators. The costs and fees of a single
arbitrator shall be shared equally by the city and the right-of-way user. In the event there is a
third arbitrator, each party shall pay the expense of its own arbitrator and shall jointly and
equally share with the other party the expense of a third arbitrator and of the arbitration.
(Ord. 9756, passed 6-20-2000)
§ 94.69 RESERVATION OF REGULATORY AND POLICE POWERS
A permittee’s rights are subject to the regulatory and policy powers of the city to adopt and
enforce general ordinances as necessary to protect the health, safety, and welfare of the public.
§ 94.70 RESERVATION OF REGULATORY AND POLICE POWERS
If any portion of this chapter is for any reason held invalid by any court 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 thereof. 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.
SECTION 2. Effective Date. This ordinance shall become effective immediately upon
adoption and publication in the official newspaper of the City of Lake Elmo.
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SECTION 3. Adoption Date. This Ordinance 08-___ was adopted on this ______ day of ___
2017, by a vote of ___ Ayes and ___ Nays.
LAKE ELMO CITY COUNCIL
_________________________________
Mike Pearson, Mayor
ATTEST:
_________________________________
Julie Johnson, City Clerk
This Ordinance 08-____ was published on the ____ day of ___________________, 2017.
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CITY OF LAKE ELMO
COUNTY OF WASHINGTON
STATE OF MINNESOTA
ORDINANCE NO. 08-185
AN ORDINANCE AMENDING THE LAKE ELMO CITY CODE OF ORDINANCES BY
ADDRESSING SMALL CELL WIRELESS FACILITIES IN THE RIGHT-OF-WAY
SECTION 1. The City Council of the City of Lake Elmo hereby amends Title IX: General
Regulations; Chapter 94: Right-of-Way Management Permits by amending the following:
GENERAL PROVISIONS
§ 94.01 FINDINGS AND PURPOSE.
(A) To provide for the health, safety, and well-being of its citizens, and to ensure the
structural integrity of its streets and the appropriate use of the rights-of-way, the city strives to
keep its rights-of-way in a state of good repair and free from unnecessary encumbrances.
Although the general population bears the financial burden for the upkeep of the rights-of-way, a
primary cause for the early and excessive deterioration of its rights-of-way is frequent
excavation.
(B) Right-of-way obstruction is a source of frustration for merchants, business owners, and
the general population which must avoid these obstructions or change travel or shopping plans
because of them and has a detrimental effect on commerce. Persons whose equipment is within
the right-of-way are the primary cause of these frequent obstructions.
(C) The city holds the rights-of-way within its geographical boundaries as an asset in trust for
its citizens. The city and other public entities have invested millions of dollars in public funds to
build and maintain the rights-of-way. The city also recognizes that some persons, by placing
their equipment in the right-of-way and charging the citizens of the city for goods and services
delivered thereby, are using this property held for the public good. Although the services are
often necessary or convenient for the citizens, the persons receive revenue and/or profit through
their use of public property.
(D) The Minnesota Legislature has recognized that it is in the public’s interest that the use
and regulation of rights-of-way be carried on in a fair, efficient, competitively neutral, and
substantially uniform manner while recognizing the regulation must reflect distinct engineering,
construction, operation, maintenance, and public and worker safety requirements and standards
applicable to various users of rights of way. Further, the Legislature has determined that because
increasing numbers of persons may seek usage of rights-of-way, municipalities such as the city
must be and have been authorized to regulate use of rights-of-way. Consistent with this
mandate, the city has endeavored to model its right-of-way regulations consistent with those of
models enacted or under consideration by municipalities throughout the state. Further, the city
has endeavored to create competitively neutral rights-of-way standards and regulations of
general applicability.
(E) In response to the foregoing facts, the city hereby enacts this chapter relating to right-of-
way management. This chapter imposes reasonable regulations on the placement and
maintenance of facilities currently within its rights-of-way or to be placed therein at some future
time. It is intended to complement the regulatory roles of state and federal agencies. Under this
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chapter, persons disturbing and obstructing the rights-of-way will bear a fair share of the
financial responsibility for the integrity of the city’s rights-of-way. Finally, this chapter provides
for recovery of out-of-pocket and projected costs from persons using the public rights-of-way.
(F) By enactment of this chapter, the City Council hereby exercises its lawful police power
and common law authority, and all statutory authority which is available to it, including, but not
limited to, the powers conferred on it under M.S. §§ 237.16, 237.162 237.163, 237.79, 237.81,
and 238.086 (the “Act) and 2017 Session Laws, Chapter 94 amending the Act as they may be
amended from time to time, while preserving all power and authority to further require
franchises from rights-of-way users under M.S. §§ 216B.36, 222.37, 300.03, and 412.11, as they
may be amended from time to time, Minnesota Rules Parts 7819.0050 – 7819.9950 and
Minnesota Rules Chapter 7560 where possible, and other provisions of law. To the extent any
provision of this chapter cannot be interpreted consistently with the Minnesota Rules, that
interpretation most consistent with the Act and other 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. 9756, passed 6-20-2000)
§ 94.02 ELECTION TO MANAGE THE PUBLIC RIGHTS-OF-WAY.
Pursuant to the authority granted to the city under state and federal statutory, administrative, and
common law, the city hereby elects, pursuant to M.S. § 237.163, subd. 2 (b), to manage rights-
of-way within its jurisdiction.
§ 94.03 DEFINITIONS.
For the purpose of this chapter, the following definitions shall apply unless the context clearly
indicates or requires a different meaning.
ABANDONED FACILITY. A facility no longer in service or physically disconnected from a
portion of the operating facility, or from any other facility, that is in use or still carries service. A
facility is not abandoned unless declared so by the right-of-way user.
ADMINISTRATOR. The City Administrator of the City of Lake Elmo, or the Administrator’s
designee.
APPLICANT. Any person requesting permission to excavate or obstruct a right-of-way.
CITY. The City of Lake Elmo, Minnesota. For purposes of § 94.65, 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. See M.S. §
237.162, subd. 10.
CONSTRUCTION PERFORMANCE BOND. Any of the following forms of security provided
at permittee’s option:
• Individual project bond;
• Cash deposit;
• Security of a form listed or approved under M.S. § 15.73, subd. 3;
• Letter of credit, in a form acceptable to the city;
• Self-insurance, in a form acceptable to the city;
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• 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. The accelerated depreciation of the right-of-way caused by excavation in
or disturbance of the right-of-way, resulting in the need to reconstruct the right-of-way earlier
than would be required if the excavation did not occur.
DEGRADATION COST. Money paid to the city to cover the cost associated with a decrease
in the useful life of a public right-of-way caused by excavation. The cost to achieve a level of
restoration, subject to Minnesota Rules Part 7819.1100, 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
construction excavation, obstruction, patching, or restoration as established by permit.
DEPARTMENT. The Department of Public Works of the city.
DEPARTMENT INSPECTOR. Any person authorized by the Administrator to carry out
inspections related to the provisions of this chapter.
EMERGENCY. A condition that:
(1) Poses a danger to life or health, or of a significant loss of property; or
(2) Requires immediate repair or replacement of facilities in order to restore service to a
customer.
EQUIPMENT. Any tangible asset used to install, repair, or maintain facilities in any right-of-
way; but shall not include boulevard plantings or gardens planted or maintained in the right-of-
way between a person’s property and the street curb.
EXCAVATE. To dig into or in any way remove or physically disturb or penetrate any part of a
right-of-way, except horticultural practices of penetrating the boulevard area to a depth of less
than 12 inches.
EXCAVATION PERMIT. The permit which, pursuant to this chapter, must be obtained
before a person may excavate in a right-of-way. An excavation permit allows the holder to
excavate that part of the right-of-way described in the permit.
EXCAVATION PERMIT FEE. Money paid to the city by an applicant to cover the costs as
provided in §
FACILITY or FACILITIES. Any tangible asset in the right-of-way required to provide utility
service.
FIVE-YEAR PROJECT PLAN. Shows projects adopted by the city for construction within the
next five years.
HIGH DENSITY CORRIDOR. A designated portion of the public right-of-way within which
telecommunications right-of-way users having multiple and competing facilities may be required
to build and install facilities in a common conduit system or other common structure.
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IN. When used in conjunction with “right-of-way,” means over, above, in, within, on, or under
a right-of-way.
LOCAL REPRESENTATIVE. A local person or persons, or designee of the person or
persons, authorized by a registrant to accept service and to make decisions for that registrant
regarding all matters within the scope of this chapter.
MANAGEMENT COST. The actual cost incurred by the city for public rights-of-way
management; including but not limited to costs 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 equipment
during public right-of-way work; determining the adequacy of right-of-way restoration; restoring
work inadequately performed after providing notice and the opportunity to correct the work; and
revoking right-of-way or small wireless facility permits and performing all other tasks required
by this chapter, including other costs the city may incur in managing the provisions of this
chapter. MANAGEMENT COST does 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; M.S. §§ 237.162 or 237.163; as they may be
amended from time to time; or any ordinance enacted under those sections, or the city’s fees and
costs related to appeals taken pursuant to § 94.68 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 by placing equipment described therein on the
right-of-way for the duration specified therein.
OBSTRUCTION PERMIT FEE. Money paid to the city by a permittee to cover the costs as
provided in § 94.40.
PATCH or PATCHING.
(1) A method of pavement replacement that is temporary in nature.
(2) A patch consists of:
(a) The compaction of the sub-base and aggregate base; and
(b) The replacement, in kind, of the existing pavement for a minimum of 2 feet beyond
the edges of the excavation in all directions.
(3) A patch is considered full restoration only when the pavement is included in the city’s
five-year project plan.
PAVEMENT. Any type of improved surface that is within the public right-of-way and that is
paved or otherwise constructed with bituminous, concrete, aggregate, or gravel.
PERFORMANCE SECURITY. A performance bond, a restoration bond, a letter of credit, or
cash deposit posted to ensure the availability of sufficient funds to assure that right-of-way
excavation and obstruction work is completed in both a timely and quality manner.
PERMIT. Has the meaning given “right-of-way permit” in M.S. § 237.162.
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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.
PROBATION. The status of a person that has not complied with the conditions of this
chapter.
PROBATIONARY PERIOD. One year from the date that a person has been notified in
writing that they have been put on probation.
REGISTRANT. Any person who:
(1) Has or seeks to have its equipment or facilities located in any right-of-way; or
(2) In any way occupies or uses, or seeks to occupy or use, the right-of-way or place its
facilities or equipment in the right-of-way.
REPAIR. The temporary construction work necessary to make the right-of-way usable for
travel.
RESTORE or RESTORATION. The process by which an excavated right-of-way and
surrounding area, including pavement and foundation, is returned to the same condition and life
expectancy that existed before excavation
RESTORATION COST. An amount of money paid to the city by a permittee to cover the cost
achieve the level of restoration according to plates 1 to 13 of Minnesota Public Utilities
Commission rules.
RIGHT-OF-WAY or PUBLIC RIGHT-OF-WAY. The surface and space on, above and
below a public roadway, highway, street, cartway, bicycle lane, or public sidewalk in which the
city has an interest, including other dedicated rights-of-way for travel purposes and utility
easements of the city. A right-of-way does not include the airwaves above a right-of-way with
regard to cellular or other nonwire telecommunications or broadcast service.
RIGHT-OF-WAY PERMIT. Either the excavation permit or the obstruction permit, or both,
depending on the context, required by this chapter.
RIGHT-OF-WAY USER. (1) A telecommunications right-of-way user as defined by M.S. §
237.162, subd. 4; or (2) a person owning or controlling a facility in the right-of-way that is used
or intended to be used for providing utility service, and who has a right under law, franchise, or
ordinance to use the public right-of-way.
SERVICE or UTILITY SERVICE. Includes but is not limited to:
(1) Those services provided by a public utility as defined in M.S. § 216B.02, subds. 4 and 6,
as it may be amended from time to time;
(2) Services of a telecommunications right-of-way user, including transporting of voice or
data information;
(3) Services of a cable communications system as defined in M.S. Ch. 238;
(4) Natural gas or electric energy or telecommunications services provided by the city;
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(5) Services provided by a cooperative electric association organized under M.S. Ch. 308A;
and
(6) A telecommunication right-of-way user Water, and sewer, including service laterals,
steam, cooling, or heating services.
SERVICE LATERAL. An underground facility that is used to transmit, distribute, or furnish
gas, electricity, communications, or water from a common source to an end-use customer. A
service lateral is also an underground facility that is used in the removal of wastewater from a
customer’s premises.
SMALL WIRELESS FACILITY. A wireless facility that meets both of the following
qualifications:
(1) Each antenna is located inside an enclosure of no more than 6 cubic feet in
volume or could fit within such an enclosure; and
(2) All other wireless equipment associated with the small wireless facility provided
such equipment is, in aggregate, no more than 28 cubic feet in volume, not including electric
meters, concealment elements, telecommunications demarcation boxes, battery backup power
systems, grounding equipment, power transfer switches, cutoff switches, cable, conduit, vertical
cable runs for the connection of power and other services, and any equipment concealed from
public view within or behind an existing structure or concealment.
Note: M. S. § 237.162, subd. 11.
SUPPLEMENTARY APPLICATION. An application made to excavate or obstruct more of
the right-of-way than allowed in, or to extend, a permit that had already been issued.
TELECOMMUNICATION RIGHTS-OF-WAY USER. A person owning or controlling a
facility in the public right-of-way, or seeking to own or control a facility in the public right-of-
way, that is used or is intended to be used for providing wireless service, or transporting
telecommunication or other voice or data information. For purposes of this chapter, a cable
communication system defined and regulated under M.S. Ch. 238, as it may be amended from
time to time, and telecommunication activities related to providing natural gas or electric energy
services, a public utility as defined in M. S. § 216B.02, a municipality, a municipal gas or power
agency organized under M. S. Chaps. 453 and 453A, or a cooperative electric association
organized under M. S. Chap. 308A, are not telecommunications right-of-way users for the
purpose of this chapter except to the extent such entity is offering wireless service.
UNUSABLE EQUIPMENT. Equipment in the right-of-way which has remained unused for 1
year and for which the registrant is unable to provide proof that it has either a plan to begin using
it within the next 12 months or a potential purchaser or user of the equipment.
UTILITY POLE. A pole that is used in whole or in part to facilitate telecommunications or
electric service.
Note: M. S. §237.162, subd. 12.
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.
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Note: M. S. § 237.162, subd. 13.
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.
Note: M. S. § 237.162, subd. 16
(Ord. 9756, passed 6-20-2000)
§ 94.04 ADMINISTRATION.
The Administrator is the principal city official responsible for the administration of the right-
of-way permits, and the regulations related thereto. The Administrator may delegate any or all
of the duties hereunder.
(Ord. 9756, passed 6-20-2000)
§ 94.05 FRANCHISE; FRANCHISE SUPREMACY.
The city may, in addition, to the requirements of this chapter, require that any person, which
has or seeks to have equipment located in any right-of-way, obtain a franchise for the full extent
permitted by law, now or hereinafter enacted. The terms of any franchise which are in direct
conflict with any provision of this chapter, whether granted prior or subsequent to enactment of
this chapter, shall control and supersede the conflicting terms of this chapter, provided, however,
that requirements relating to insurance, bonds, penalties, security funds, letters of credit,
indemnification, or any other security in favor of the city may be cumulative in the sole
determination of the city or unless otherwise negotiated by the city and the franchise grantee.
All other terms of this chapter shall be fully applicable to all persons, whether franchised or not.
(Ord. 9756, passed 6-20-2000)
§ 94.06 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.
(Ord. 9756, passed 6-20-2000)
§ 94.07 SEVERABILITY; REVOCABLE PERMITS.
If any subchapter, section, division, 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, the portion shall be deemed a separate, distinct, and independent provision and the
holding shall not affect the validity of the remaining portions thereof. 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 the 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 60-days written notice to the other. The requirements and conditions of the
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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. If a permit, right, or registration shall be considered a revocable permit as
provided herein, the permittee must acknowledge the authority of the City Council to issue the
revocable permit and the power to revoke it. 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.
(Ord. 9756, passed 6-20-2000)
REGISTRATION
§ 94.20 REGISTRATION AND RIGHT-OF-WAY OCCUPANCY.
(A) Registration. Each person who occupies, uses, or seeks to occupy or use, the right-of-
way or any equipment or facilities in or on the right-of-way, including persons with installation
and maintenance responsibilities by lease, sublease, or assignment, way must register with the
city. Registration will consist of providing application information
(B) Registration prior to work. No person may construct, install, repair, remove, relocate, or
perform any other work on or use any facilities or any part thereof in any right-of-way without
first being registered with the city.
(C) Exceptions. Nothing herein shall be construed to repeal or amend the provisions of a city
ordinance permitting persons to plant or maintain boulevard plantings or gardens in the area of
the right-of-way between their property and the street curb. Except as hereinafter provided,
persons planting or maintaining boulevard plantings or gardens shall not be deemed to use or
occupy the right-of-way, and shall not be required to obtain any permits or satisfy any other
requirements for planting or maintaining the boulevard plantings or gardens under this chapter.
However, excavations deeper than 12 inches are subject to the permit requirements of § 94.35.
Nothing herein relieves a person from complying with the provisions of M.S. § 216D, as it may
be amended from time to time, the “Gopher One Call” Law.”
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.21 REGISTRATION INFORMATION.
(A) Information required. The information provided to the Administrator city at the time of
registration shall include, but not be limited to:
(1) Each registrant’s name, Gopher One-Call registration certificate number, address and e-
mail address, if applicable, and telephone and facsimile numbers;
(2) The name, address and e-mail address, if applicable, and telephone and facsimile
numbers of a local representative. The local representative or designee shall be available at all
times. Current information regarding how to contact the local representative in an emergency
shall be provided at the time of registration;
(3) A certificate of insurance shall be on a form approved by the city:
(a) Verifying that an insurance policy has been issued to the registrant by an insurance
company licensed to do business in the State of Minnesota, or that registrant is covered by self-
insurance which the Administrator determines to provide the city with protections equivalent to
that of a Minnesota licensed insurance company, legally independent from the registrant;
(b) Verifying that the registrant is insured against claims for personal injury, including
death, as well as claims for property damage arising out of the use and occupancy of the right-of-
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way by the registrant, its officers, agents, employees, and permittees, and placement and use of
facilities and equipment in the right-of-way by the registrant, its officers, agents, employees, and
permittees, and that registrant’s insurance coverage includes, but is not limited to, protection
against liability arising from completed operations, damage of underground facilities, and
collapse of property;
(c) Naming the city as an additional insured as to whom the coverages required herein are
in force and applicable and for whom defense will be provided as to all the coverages;
(d) Requiring that the city be notified 30 days in advance of cancellation of the policy or
material modification of a coverage term; and
(e) Indicating comprehensive liability coverage, automobile liability coverage, workers’
compensation and umbrella coverage established by the city in amounts sufficient to protect the
city and carry out the purposes and policies of this chapter.
(4) The city may require a copy of the actual insurance policies;
(5) If the person 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;
(6) A copy of the person’s certificate of authority from the Minnesota Public Utilities
Commission or other authorization or approval from the applicable state or federal agency to
lawfully operate, where the person is lawfully required to have such authorization or approval
from said commission or other state or federal agency ; and
(7) The other information as the city may require.
(B) Notice of changes. The registrant shall keep all of the information listed above current at
all times by providing to the city information as to changes within 15 days following the date on
which the registrant has knowledge of any change.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.22 REPORTING OBLIGATIONS.
(A) Operations. Each registrant shall, at the time of registration and by December 1 of each
year, file a construction and major maintenance plan for underground facilities with the city.
(1) The plan shall be submitted by 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.
(2) The plan shall include, but not be limited to, the following information:
(a) The locations and the estimated beginning and ending dates of all projects to be
commenced during the next calendar year (a “next-year project”); and
(b) To the extent known, the tentative locations and estimated beginning and ending dates
for all projects contemplated for the five years following the next calendar year (a “five-year
project”).
(3) The term “project” in this chapter shall include both next-year projects and 5-year
projects.
(4) By January 1 of each year, the city will have available for inspection in the
Administrator’s office a composite list of all projects of which the city has been informed in the
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annual plans. All registrants are responsible for keeping themselves informed of the current
status of this list.
(5) Thereafter, by February 1, each registrant may change any project in its list of next-year
projects, and must notify the city and all other registrants of all the changes in the list.
Notwithstanding the foregoing, a registrant may at any time join in a next-year project of another
registrant listed by the other registrant.
(B) Additional next-year projects. Notwithstanding the foregoing, the city will not deny an
application for a right-of-way permit for failure to include a project in a plan submitted to the
city if the registrant has used commercially reasonable efforts to anticipate and plan for the
project.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
PERMITS
§ 94.35 RIGHT-OF-WAY PERMIT REQUIREMENT.
(A) Right-of-way permit required. Except as otherwise provided in the city’s regulations, no
person 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 and posting
of the appropriate construction performance bond with the city.
(1) Excavation permit. An excavation permit is required by a registrant to excavate that part
of the right-of-way described in the permit and to hinder free and open passage over the specified
portion of the right-of-way by placing equipment described therein, to the extent and for the
durations specified therein.
(2) Obstruction permit. An obstruction permit is required by 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 durations 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.
Note: M. S. §237.163, subd. 13.
(B) Right-of-way permit extensions. No person may excavate or obstruct the right-of-way
beyond the date or dates specified in the permit unless the person makes a supplementary
application for another right-of-way permit before the expiration of the initial permit, and a new
right-of-way permit, or right-of-way permit extension, is granted.
(C) Delay penalty. In accordance with Minnesota Rule Part 7819.1000, subpart 3 and
Nnotwithstanding the provisions 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.
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(D) Right-of-way permit display. Right-of-way permits issued under this chapter shall be
conspicuously displayed at all times at the indicated work site and shall be available for
inspection by the city.
(E) Construction performance bond. The construction performance bond shall be in an
amount determined in the city’s sole discretion, sufficient to serve as security for the full and
complete performance of permittee’s obligation under this chapter, including any costs,
expenses, damages, or loss the city pays or incurs because of any failure to comply with this
chapter or any other applicable law, regulation, or standard. During the period of construction,
repair, or restoration of rights-of-way or facilities within the rights-of-way, the construction
performance bond security shall be in an amount sufficient to cover 125% of the estimated cost
of the work, as documented by the person proposing to perform the work, or in a lesser amount
as may be determined by the city, taking into account the amount of facilities in the right-of-way,
the location and method of installation of the facilities, the conflict or interference of the
facilities with the equipment facilities of other persons, and the purposes and policies of this
chapter. Sixty days after completion of the work, the construction performance bond security
may be reduced in the sole determination of the city.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.36 APPLICATION FOR A RIGHT-OF-WAY PERMIT.
(A) Applications for a right-of-way permit is made to the city through the Administrator.
(B) 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 city pursuant to this chapter;
(2) Submissions of a completed permit application form, including all required attachments,
and scaled drawings showing the location and area of the proposed project and the location of all
existing and proposed facilities;
(3) Payment of all money due to 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 applicant’s
prior excavations or obstructions of the rights-of-way or any emergency actions taken by the
city; and/or
(d) Franchise fees or other charges, if applicable.
(4) Payment of disputed amounts due the city by posting security or depositing in a city-
approved escrow account an amount equal to at least 125% of the amount owing; and
(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.
(6) A Storm Water Management Plan and/or an Erosion and Sediment Control Plan if
applicable as specified in § 150.283.
(Ord. 9756, passed 6-20-2000; Am. Ord. 08-024, passed 4-20-2010)
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§ 94.37 ISSUANCE OF PERMIT; CONDITIONS.
(A) Permit issuance. If the Administrator determines that the applicant has satisfied the
requirements of this chapter, the city shall issue a permit.
(B) Conditions. The city may impose reasonable conditions upon the issuance of the permit
and the performance of the applicant thereunder to protect the public health, safety, and welfare
to ensure the structural integrity of the right-of-way, to protect the property and safety of other
users of the right-of-way, and to minimize the disruption and inconvenience to the traveling
public. In addition, a permittee shall comply with all requirements of local, state and federal
laws, including but not limited to M. S. §§216D.01-.09 (Gopher One Call Excavation Notice
System) and Minnesota Rules Chapter 7560.
(1) Small Wireless Facility Conditions. In addition to subdivision 2, 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) 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 50 feet in height without the city’s written authorization, provided that the city
may impose a lower height limit in the applicable permit to protect the public health,
safety, and welfare or to protect the right-of-way and its current use, and further provided
that a registrant may replace an existing wireless support structure exceeding 50 feet in
height with a structure of the same height subject to such conditions or requirements as
may be imposed in the applicable permit.
(c) No wireless facility may extend more than 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.
Note: M. S.§ 237.163, subd. 3b.
(C) 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
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agreement with the city. The standard collocation agreement may require payment of the
following:
(1) Up to $150 per year for rent to collocate on the city structure;
(2) $25 per year for maintenance associated with the collocation;
(3) A monthly fee for electrical service as follows:
(a) $73 per radio node less than or equal to 100 maximum watts;
(b) $182 per radio node over 100 maximum watts; or
(c) 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.
Note: M. S.§ 237.163. Subd. 6(g).
§ 94.39 ACTION ON SMALL WIRELESS FACILITY PERMIT APPLICATIONS.
(A) Deadline for Action. The city shall approve or deny a small wireless facility permit
application within 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 15 small wireless facilities, or a
greater number if agreed to by the city, provided that all small wireless facilities in the
application:
(1) are located within a two-mile radius;
(2) consist of substantially similar equipment; and
(3) are to be placed on similar types of wireless support structures
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.
(C) Tolling of Deadline. The 90-day deadline for action on a small wireless facility permit
application may be tolled if:
(1) The city receives applications from one or more applicants seeking approval of
permits for more than 30 small wireless facilities within a seven-day period. In such case, the
city may extend the deadline for all such applications by 30 days by informing the affected
applicants in writing of such extension.
(2) The applicant fails to submit all required documents or information and the city
provides written notice of incompleteness to the applicant within 30 days of receipt of the
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application. Upon submission of additional documents or information, the city shall have 10 days
to notify the applicant in writing of any still-missing information.
(3) The city and a small wireless facility applicant agree in writing to toll the review
period.
Note: M. S.§ 237.163. subd. 3c
(Ord. 9756, passed 6-20-2000)
§ 94.40 RIGHT-OF-WAY PERMIT FEES.
(A) Excavation permit fee. The excavation permit fee shall be established by the city in an
amount sufficient to recover the following costs:
(1) The city management costs; and
(2) Degradation cost, if applicable.
(B) Obstruction permit fee. The obstruction permit fee shall be established by the city and
shall be in an amount sufficient to recover the city management costs.
(C) Small wireless facility permit fee. The city shall impose a small wireless facility permit fee
in an amount sufficient to recover:
(1) management costs, and;
(2) city engineering, make-ready, and construction costs associated with collocation of small
wireless facilities.
(D) Payment of permit fees. No excavation permit or obstruction permit shall be issued
without payment of excavation or obstruction permit fees. The city may allow applicant to pay
the fees within 30 days of billing.
(E) Non-refundable. Permit fees that were paid for a permit that the city has revoked for a
breach as stated in § 94.59 are not refundable.
(F) 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.
(Ord. 9756, passed 6-20-2000)
§ 94.41 RIGHT-OF-WAY PATCHING AND RESTORATION.
(A) Timing.
(1) The work to be done under the excavation permit, and the patching and/or 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 extraordinary circumstances
beyond the control of the permittee or when work was prohibited as unseasonal or unreasonable
under § 94.44.
(2) In addition to repairing its own work, the permittee must restore the general area of the
work, and the surrounding areas, including the paving and its foundations, to the same condition
that existed before the commencement of the work and must inspect the area of the work and use
reasonable care to maintain the same condition for 36 months thereafter.
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(B) Patch and restoration. Permittee shall patch its own work. The city may choose either to
have the permittee restore the right-of-way or the city shall restore the right-of-way itself.
(1) City restoration. If the city restores the right-of-way, permittee shall pay the costs
thereof within 30 days of billing. If, during the 36 months following the restoration, the
pavement settles due to permittee’s improper backfilling, the permittee shall pay to the city,
within 30 days of billing, the cost of repairing the pavement.
(2) Permittee restoration. If the permittee restores the right-of-way, it shall at the time of
application for an excavation permit, post a construction performance bond security in
accordance with the provisions of Minnesota Rule Part 7819.3000 in an amount determined by
the Administrator to be sufficient to cover the cost of restoring the right-of-way to its pre-
excavation condition and reasonable, directly related costs that the city estimates will be incurred
if the right-of-way user fails to perform under the bond. Litigation costs and attorney fees are
not direct costs to be included in calculating the amount of the bond. If, 36 24 months after
completion of the restoration of the right-of-way, the Administrator city determines that the
right-of-way has been properly restored, the surety on the construction performance bond
security shall be released.
(C) Standards. The permittee shall perform repairs excavation, backfilling, patching, and
restoration according to the standards and with the materials specified by the Administrator city
and shall comply with Minnesota Rule Part 7819.1100. The city shall have the authority to
prescribe the manner and extent of the restoration, and may do so in written procedures of
general application or on a case-by-case basis. The city in exercising this authority 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; the character of the neighborhood
surrounding the right-of-way;
(3) The pre-excavation condition of the right-of-way; 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 permittee 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 or restoration would be effective in slowing
the depreciation of the right-of-way that would otherwise take place.
(D) Guarantees. By choosing to restore the right-of-way itself, the permittee guarantees its
work and shall maintain it for 36 months following its completion. During this 36-month period,
it shall, upon notification from the city, correct all restoration work to the extent necessary, using
the method required by the city. The work shall be completed within 5 five calendar days of the
receipt of the notice from the city, not including days during which work cannot be done because
of the circumstances constituting force majeure or days when work is prohibited as unseasonal or
unreasonable under § 94.44.
(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 at its option may do the work. In that event the permittee shall pay
to the city, within 30 days of billing, the cost of restoring the right-of-way. If permittee fails to
pay as required, the city may exercise its rights under the construction performance bond.
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(F) 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 patching and the degradation fee shall not include the costs to accomplish these
responsibilities.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.42 JOINT APPLICATIONS.
(A) Joint application. Registrants may jointly apply for permits to excavate or obstruct the
right-of-way at the same time and place.
(B) With city projects. Registrants who join in a scheduled obstruction or excavation
performed by the city, whether or not it is a joint application by two or more registrants or a
single application, are not required to pay the obstruction and degradation portions of the permit
fee, but a permit would still be required.
(C) Shared fees. 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 or excavation
permit fee. In order to obtain a joint permit registrants must agree among themselves as to the
portion each will pay and indicate the same on their applications.
(Ord. 9756, passed 6-20-2000)
§ 94.43 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 which determines that an area greater than that
specified in the permit must be obstructed or excavated must before working in that greater area
make application for a permit extension and pay any additional fees required thereby, and be
granted a new permit or permit extension.
(B) 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.
(Ord. 9756, passed 6-20-2000)
§ 94.44 OTHER OBLIGATIONS.
(A) Compliance with other laws. Obtaining a right-of-way permit does not relieve the
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 county, state, or federal rules, laws, or regulations.
A permittee shall comply with all requirements of local, state, and federal laws, including M.S. §
216D.01-09, as it may be amended from time to time (“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, and 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 the work.
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(C) Interference with right-of-way.
(1) 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.
(2) 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.
(3) The loading or unloading of trucks next to a permit area is prohibited unless specifically
authorized by the permit.
(D) 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 M.S. Chapter 216D and Minnesota Rules
Chapter 7560 and shall requiring potholing or open cutting over existing underground utilities
before excavating, as determined by the Administrator.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.45 DENIAL OR REVOCATION OF PERMIT.
(A) Reasons for denial. 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 of the public, or if necessary to protect the right-of-way and
its current use.
(B) Procedural requirements. The denial or revocation of a permit must be made in writing
and must document the basis for 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 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 30 days after resubmission.
Note: M. S.§ 237.163. subds. 4(c) and 5(f).
(Ord. 9756, passed 6-20-2000)
REGULATIONS AND PROCEDURES
§ 94.55 INSTALLATION REQUIREMENTS.
The excavation, backfilling, patching, and restoration, and all other work performed in the
right-of-way, shall be done in conformance Minnesota Rules Parts 7819.1100 and 7819.5000 and
or other applicable local requirements, insofar as they are not inconsistent with M.S. §§ 237.162
and 237.163. Installation of service laterals shall be performed in accordance with Minnesota
Rules Chapter 7560 and this Chapter. Service lateral installation is further subject to those
requirements and conditions set forth by the city in the applicable permits or agreements
referenced in § 94.60, subdivision (B) of this Chapter.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.56 INSPECTION.
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(A) Notice of completion. When the work under any permit hereunder is completed, the
permittee shall furnish a completion certificate in accordance with P.U.C. rules Minnesota Rule
Part 7819.1300.
(B) Site inspection. Permittee shall make the work-site available to the Administrator 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.
(C) Authority of Administrator.
(1) At the time of inspection, the Administrator 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 Administrator may issue an order to the permittee for any work which does not
conform to the terms of the permit or other applicable standards, conditions or codes. The Order
shall state that failure to correct the violation will be cause for revocation of the permit. Within
10 days after issuance of the order, the permittee shall present proof to the Administrator that the
violation has been corrected. If the proof has not been presented within the required time, the
Administrator may revoke the permit pursuant to § 94.59.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.57 WORK DONE WITHOUT A PERMIT.
(A) Emergency situations.
(1) Each registrant shall immediately notify the Administrator of any event regarding its
facilities which it considers to be an emergency. The registrant may proceed to take whatever
actions are necessary to respond to the emergency. Excavators’ notification to Gopher State One
Call regarding an emergency situation does not fulfill this requirement. Within two 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) (a) 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.
(b) 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 the permit, pay double all the other fees
required by the City 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.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.58 SUPPLEMENTARY NOTIFICATION.
If the obstruction or excavation of the right-of-way begins later or ends sooner than the date
given on the permit, permittee shall notify the city of the accurate information as soon as this
information is known.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
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§ 94.59 REVOCATION OF RIGHT-OF-WAY PERMITS.
(A) 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 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 maintain the required bonds and/or insurance;
(5) The failure to complete the work in a timely manner, unless a permit extension is
obtained or unless the failure to complete the work is due to reasons beyond the permittee’s
control; or
(6) The failure to correct, in a timely manner, work that does not conform to a condition
indicated on an order issued pursuant to § 94.56.
(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 the
violation. The demand shall state that continued violations may be cause for revocation of the
permit. Further, a substantial breach, as stated above, will allow the city, at its discretion, to
place additional or revised conditions on the permit to mitigate and remedy the breach.
(C) Response to notice of breach.
(1) Within 24 hours of receiving notification of the breach, permittee shall contact provide
the city with a plan, acceptable to the city, that will cure the breach.
(2) Permittee's failure to so contact the city, or the permittee’s failure to timely submit an
acceptable plan, or permittee’s failure to reasonably implement the approved plan, shall be cause
for immediate revocation of the permit.
(3) Further, permittee’s failure to so contact the city, or permitee’s failure to submit an
acceptable plan, or permittee’s failure to reasonably implement the approved plan, shall
automatically place the permittee on probation for one full year.
(D) Cause for probation. From time to time, the city 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 right-of-way
grossly outside of the permit authorization.
(E) Automatic revocation. If a permittee, while on probation, commits a breach as outlined
above, permittee's permit will automatically be revoked and permittee will not be allowed further
permits for one full year, except for emergency repairs.
(F) 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’s fees incurred in connection with the revocation.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
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§ 94.60 MAPPING DATA.
(A) Information required. Each year, registrant and permittee shall provide mapping
information required by the city in accordance with Minnesota Rules Parts 7819.4000 and
7819.4100. Within 90 days following completion of any work pursuant to a permit, the
permittee shall provide the Administrator with 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 Administrator. Failure to
provide maps and drawings pursuant to this subsection 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 Part 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
Administrator reasonably requires it. Permittees or their subcontractors shall submit to the
Administrator evidence satisfactory to the Administrator of the installed service lateral
locations. Compliance with this subdivision and with applicable Gopher State One Call
law and Minnesota Rules governing service laterals installed after December 31, 2005
shall be a condition of any city approval necessary for:
(1) payments to contractors working on a public improvement project including those
under M. S. Chapter 429
(2) city approval under development agreements or other subdivision or site plan
approval under M. S. Chapter 462. The Administrator 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 future permits to the offending
permittee or its subcontractors.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.61 LOCATION OF FACILITIES.
Placement, location, and relocation of facilities must comply with the Act, with other applicable
law, and with Minnesota Rules Parts 7819.3100, 7819.5000 and 7819.5100, to the extent the
rules do not limit authority otherwise available to cities.
(A) Undergrounding. Unless otherwise permitted by an existing franchise, or other
agreement, or unless existing above-ground facilities are repaired or replaced, new construction
and the installation of new facilities and replacement of old facilities shall be done underground
or contained within buildings or other structures in conformity with applicable codes.
(B) Corridors.
(1) The city may assign specific corridors 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 someday be located within the right-of-way. All excavation, 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.
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(2) Any registrant whose facility is in the right-of-way in a position at variance with the
corridors established by the city shall, no later than at the time of the next reconstruction or
excavation of the area where the facility is located, move that facility to its assigned position
within the right-of-way, unless this requirement is waived by the city for good cause shown,
upon consideration of such factors as the remaining economic life of the facility, public safety,
customer service needs, and hardship to the registrant.
(C) Nuisance.
(1) One year after the passage of this chapter, any facility found in a right-of-way that has
not been registered shall be deemed to be a nuisance.
(2) The city may exercise any remedies or rights it has at law or in equity, including, but not
limited to, abating the nuisance or taking possession of the facility and restoring the right-of-way
to a useable condition.
(D) Limitation of space. To protect 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 the 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’s 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.
(Ord. 9756, passed 6-20-2000)
§ 94.62 RELOCATION OF FACILITIES.
(A) (1) A right-of-way user must promptly and at its own expense, with due regard for
seasonal working conditions, permanently remove and relocate its facilities in the right-of-way
whenever it is necessary to prevent interference, and not merely for convenience of the city, and
shall restore the right-of-way to the same condition it was in prior to the removal or relocation.
(2) The city may make the request to a right-of-way user to remove and relocate its
facilities when in connection with:
(a) A present or future city use of the right-of-way for a public project;
(b) When the public health, and safety, require it; or
(c) The safety and convenience of travel over the right-of-way.
(B) Notwithstanding the foregoing, a right-of-way user shall not be required to remove or
relocate its facilities from any right-of-way which has been vacated in favor of a non-
governmental entity unless and until the reasonable costs thereof are first paid to the right-of-way
user.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.63 PRE-EXCAVATION FACILITY AND FACILITIES LOCATION.
In addition to complying with the requirements of M.S. § 216D.01-09 (“One-Call Excavation
Notice System”), as it may be amended from time to time, before the start date of any right-of-
way excavation, each registrant who has facilities or equipment in the area to be excavated shall
mark the horizontal and approximate vertical placement of all the equipment and facilities. Any
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505137v1 SJS LA515-1
registrant whose equipment or facilities are less than 20 inches below a concrete or asphalt
surface shall notify and work closely with the excavation contractor to establish the exact
location of its equipment and facilities and the best procedure for excavation.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.64 DAMAGE TO OTHER FACILITIES.
(A) When the city does work in the right-of-way and finds it necessary to maintain, support,
or move a registrant’s facilities to protect it, the city shall notify the local representative as early
as is reasonably possible. The costs associated therewith will be billed to that registrant and
must be paid within 30 days from the date of billing.
(B) (1) Each registrant shall be responsible for the cost of repairing any facilities in the right-
of-way which it or its facilities damages.
(2) Each registrant shall be responsible for the cost of repairing any damage to the facilities
of another registrant caused during the city’s response to an emergency occasioned by that
registrant’s facilities.
(Ord. 9756, passed 6-20-2000)
§ 94.65 RIGHT-OF-WAY VACATION.
(A) Reservation of right. If the city vacates a right-of-way which contains the facilities of a
registrant, and if the vacation does not require the relocation of a registrant or permittee’s
facilities, the city shall, except when it would not be in the public interest, reserve, to and for
itself and all right-of-way users having facilities in the vacated right-of-way, the right to install,
maintain, and operate facilities in the vacated right-of-way and to enter upon the right-of-way at
any time for the purpose of reconstructing, inspecting, maintaining, or repairing the same.
(B) Relocation of facilities. If the vacation requires the relocation of registrant or permittee
facilities;, payment of the relocation costs must be determined as follows: (1) if the vacation
proceedings are initiated by the right-of-way user, the right-of-way user must pay the relocation
costs; or (2) if the vacation proceedings are initiated by the city for a public project, the right-of-
way user must pay the relocation costs unless otherwise agreed to by the city and the right-of-
way user; or (3) if the vacation proceedings are initiated for the purposes of benefiting by a
person or persons other than the right-of-way user, the benefited person or persons must pay the
relocation costs.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.66 INDEMNIFICATION AND LIABILITY.
(A) 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 Rule Part 7819.
(B) Defense.
(a) If a suit is brought against the city under circumstances where the registrant or
permittee is required to indemnify, the registrant or permittee, at its sole cost and expense, shall
defend the city in the suit if written notice of the suit is properly given to the registrant or
permittee within a period in which the registrant or permittee is not prejudiced by the lack or
delay of notice.
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(b) If the registrant or permittee is required to indemnify and defend, it shall thereafter
have control of the litigation, but the registrant or permittee may not settle the litigation without
the consent of the city. Consent will not be unreasonably withheld.
(c) This part is not as to third-parties, a waiver of any defense, immunity, or damage
limitation otherwise available to the city.
(d) In defending an action on behalf of the city, the registrant or permittee is entitled to
assert in an action every defense, immunity, or damage limitation that the city could assert in its
own behalf.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.67 ABANDONED AND UNUSABLE EQUIPMENT.
(A) Discontinued operations. A registrant who has determined to discontinue all or a portion
of its operations in the city must either:
(1) 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; or
(2) Submit to the city a proposal and instruments for transferring ownership of its facilities
to the city. If a registrant proceeds under this clause, the city may, at its option:
(a) Purchase the equipment;
(b) Require the registrant, at its own expense, to remove it; or
(c) Require the registrant to post a bond in an amount sufficient to reimburse the city for
reasonably anticipated costs to be incurred in removing the equipment.
(B) Removal. Any registrant who has abandoned facilities in any right-of-way shall
remove it from that right-of-way if required in conjunction with other right-of-way repair,
excavation, or construction, unless this requirement is waived by the city.
(Ord. 9756, passed 6-20-2000) Penalty, see § 10.99
§ 94.68 APPEALS.
(A) A right-of-way user that:
(1) Has been denied registration;
(2) Has been denied a permit;
(3) Has had a permit revoked;
(4) Believes that the fees imposed are not in conformity with M. S. §237.163, subd. 6, or
(5) Disputes a determination of the Administrator regarding § 94.59, subd. (B) of this
chapter
may have denial, revocation, or fee imposition reviewed, upon written request, by the City
Council. The City Council shall act on a timely written request at its next regularly scheduled
meeting, provided the right-of-way user has submitted its appeal with sufficient time to include
the appeal as a regular agenda item. A decision by the City Council affirming the denial,
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revocation, or fee imposition will be in writing and supported by written findings establishing the
reasonableness of the decision.
(Ord. 9756, passed 6-20-2000)
§ 94.69 RESERVATION OF REGULATORY AND POLICE POWERS
A permittee’s rights are subject to the regulatory and policy powers of the city to adopt and
enforce general ordinances as necessary to protect the health, safety, and welfare of the public.
§ 94.70 RESERVATION OF REGULATORY AND POLICE POWERS
If any portion of this chapter is for any reason held invalid by any court 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 thereof. 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.
SECTION 2. Effective Date. This ordinance shall become effective immediately upon
adoption and publication in the official newspaper of the City of Lake Elmo.
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SECTION 3. Adoption Date. This Ordinance 08-___ was adopted on this ______ day of ___
2017, by a vote of ___ Ayes and ___ Nays.
LAKE ELMO CITY COUNCIL
_________________________________
Mike Pearson, Mayor
ATTEST:
_________________________________
Julie Johnson, City Clerk
This Ordinance 08-____ was published on the ____ day of ___________________, 2017.
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505137v1 SJS LA515-1
CITY OF LAKE ELMO
COUNTY OF WASHINGTON
STATE OF MINNESOTA
ORDINANCE NO. 08-186
AN ORDINANCE ADOPTING A FEE SCHEDULE FOR THE CITY OF LAKE ELMO
The City Council of the City of Lake Elmo ordains:
SECTION I. Schedule Adopted. The attached fee schedule is hereby adopted.
SECTION II. Not Codified. This ordinance is transitory in nature and shall not be codified
in the City Code. This ordinance and the fee schedule established hereby shall be placed on
file and available for public inspection at City Hall.
SECTION III. Effect. The fees set out in the attached fee schedule apply notwithstanding
any other fees the City has established which may be inconsistent. Any other fees imposed
by the City which do not appear on the attached fee schedule remain in full force and effect.
SECTION IV. Effective Date. This ordinance shall become effective upon adoption and
publication in the official newspaper of the City of Lake Elmo.
SECTION V. Adoption Date. This Ordinance No. 08-186 was adopted on this 5th day of
September, 2017, by a vote of ____Ayes and _____Nays.
LAKE ELMO CITY COUNCIL
Mike Pearson, Mayor
ATTEST:
Julie Johnson, City Clerk
This Ordinance ___________________was published on the _____ day of ______________,
2017.
CITY OF LAKE ELMO
RESOLUTION NO. 2017-090
RESOLUTION AUTHORIZING PUBLICATION OF
ORDINANCE NOs. 08-185 AND 08-186 BY TITLE AND SUMMARY
WHEREAS, the City Council of the city of Lake Elmo has adopted Ordinance Nos. 08-
185, an ordinance amending the Lake Elmo City Code of Ordinances by amending Chapter 94:
Right-of-Way Management Permits to address small wireless facilities and 08-186, amending the
City’s Fee Schedule to include a Small Wireless Facility permit fee; and
WHEREAS, the ordinances are lengthy; and
WHEREAS, Minnesota Statutes, section 412.191, subd. 4, allows publication by title and
summary in the case of lengthy ordinances or those containing charts or maps; and
WHEREAS, the City Council believes that the following summary would clearly inform
the public of the intent and effect of the ordinance.
NOW, THEREFORE, BE IT RESOLVED by t he City Council of the City of Lake Elmo,
that the City Administrator shall cause the following summary of Ordinance Nos. 08-185 and 08-
186 to be published in the official newspaper in lieu of the entire ordinance:
Public Notice
The City Council of the City of Lake Elmo has adopted Ordinance No. 08-185, which amends the
Lake Elmo City Code of Ordinances by amending Chapter 94: Right-of-Way Management Permits
to address small wireless facilities.
The City Council of the City of Lake Elmo has adopted Ordinance No. 08-186, which amends the
Lake Elmo City Code of Ordinances by amending Appendix A: Fee Schedule by adding a Small
Wireless Facility Permit fee of $275.00.
BE IT FURTHER RESOLVED by the City Council of the City of Lake Elmo that the
City Administrator keep a copy of the ordinance at City Hall for public inspection and that a full
copy of the ordinance be placed in a public location within the City.
Dated: September 5, 2017.
___________________________________
Mayor Mike Pearson
ATTEST:
____________________________________
Julie Johnson, City Clerk
(SEAL)
The motion for the adoption of the foregoing resolution was duly seconded by member
_____________________ and upon vote being taken thereon, the following voted in favor thereof:
and the following voted against same: ______________________
Whereupon said resolution was declared duly passed and adopted.
City of Lake Elmo Fee Schedule 2017
1
APPLICATION/FEE/PERMIT TYPE 2017 FEE ESCROW OR ADDITIONAL CHARGE DEPARTMENT
Planned Unit Development Planning
General Concept Plan $1,250.00 $7,500.00 Fee Escrow (Waive Subdivision Escrow) Planning
Development Stage Plan $1,850.00 $10,000.00 Fee Escrow (Waive Subdivision Escrow) Planning
Final Plan $1,250.00 $8,000.00 Fee Escrow (Waive Subdivision Escrow) Planning
(City will retain escrows to reimburse review costs for each
stage
Planning
Private Roads (Permitted only in AG zone) $150.00 Planning
Restrictive Soils and Wetland Restoration Protection and
Preservation Permit $800.00 $1,500.00 Fee Escrow
Planning
Returned Check (NSF) $25.00 Administration
Right-of-Way Permit Engineering
Annual Registration $200.00 $5,000.00 Security Engineering
Excavation Permit $275.00 + $.60/foot Engineering
Joint Trench Permit (per lot per utility) $275.00 + $.60/foot Engineering
Obstruction Permit $275.00 Engineering
Small Wireless Permit Fee $275.00 Engineering
Permit Extension $100.00 Engineering
Delay Penalty (per calendar day) $25.00 Engineering
SAC Charge (City) (Sewer Availability Charge)
$3,000.00
Per REC Unit: collected at time of plat for new lot. This fee may
be deferred through special assessment for parcels with existing
structures.
Engineering
SAC Charge (Met Council) (Sewer Availability Charge) $2,485.00 Per REC Unit: $2,485.00 to Met Council at time of connection.
Engineering
Sewer Connection Charge
$1,000.00 Per REC Unit collected at time of plat for new lot. This fee may
Engineering
Sewer Lateral Benefit Charge $11,000.00 Per REC Unit connecting to a Trunk Sewer Main and that has
Engineering
Sewer Rate $4.50/1,000 Gal Administration
201 Off-Site Maintenance Fee $75.00/unit/quart
er
Administration
Real Estate Searches $15.00/Search For special assessment or utility search Administration
City of Lake Elmo Fee Schedule 2017
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