HomeMy WebLinkAbout09-05-17 CCMP
NOTICE OF MEETING
City Council Meeting
Tuesday, September 5, 2017 7:00 P.M.
City of Lake Elmo | 3800 Laverne Avenue North
AGENDA
A. Call to Order/Pledge of Allegiance
B. Approval of Agenda
C. Approval of Minutes
1. August 18, 2017
D. Public Comments/Inquires
E. Presentations
F. Consent Agenda
2. Approve Payment of Disbursements and Payroll
3. Approve Hire of Assistant City Administrator
4. Approve Draintile and Additional Mulch Costs for Easton Village Park
5. Approve Parks Commission Membership Change
6. Approve Private Development Security Reductions – Various Developments.
7. Old Village Phase 3 – Change Order No. 2.
8. CSAH 13 (Ideal Avenue/Olson Lake Trail) – Approve Cooperative Agreement Payment No. 3.
9. CSAH15 / 50th Street Traffic Signal – Approve Cooperative Agreement Payment No. 2.
10. Approve Right of Way Ordinance Update - Ordinance No 08-186, Resolution 2017-090
11. Approve Hammes Park Amenities
12. Approve Conditional Job Offer to Part Time Firefighter Applicants Nate Wagner and Kyle Jacket
G. Regular Agenda
13. Old Village Ph4 Street & Utility Improvements – Accept Petition and Authorize Preliminary Engineering
Services – Resolution 2017-092
14. Royal Golf PUD Final Plat – Resolution 2017-093
15. Village Park Preserve Final Plat – Resolution 2017-089
16. Hidden Meadows Final Plat Extension – Resolution 2017-091
H. Council Reports
I. Staff Reports and Announcements
J. Adjourn
Our Mission is to Provide Quality Public Services in a Fiscally Responsible
Manner While Preserving the City’s Open Space Character
CITY OF LAKE ELMO CITY COUNCIL MINUTES
AUGUST 15, 2017
CALL TO ORDER/PLEDGE OF ALLEGIANCE
Mayor Pearson called the meeting to order at 7:00 pm. PRESENT: Mayor Mike Pearson and Councilmembers Justin Bloyer, Julie Fliflet, Jill Lundgren
and Christine Nelson Staff present: Administrator Handt, City Attorney Sonsalla, City Engineer Griffin, City Planner Becker, Public Works Director Weldon, and City Clerk Johnson. APPROVAL OF AGENDA
Item 10, “Approve the Addition of Columbus Day as an Observed Holiday” was moved to the Regular Agenda. Item 14, “Approve ‘A Guide to the Development and Usage of Sunfish Lake Park’” was moved to the Regular Agenda.
Councilmember Fliflet, seconded by Councilmember Lundgren, moved TO APPROVE THE
AGENDA AS AMENDED. Motion passed 5 – 0. ACCEPT MINUTES
Minutes of the August 1, 2017 Regular Meeting were accepted as presented. PUBLIC COMMENTS/INQUIRIES Virginia Pleban, 8249 59th Street North, spoke about volunteering and the possibility of an
“Adopt a Garden” program in Lake Elmo.
PRESENTATIONS None
CONSENT AGENDA 2. Approve Payment of Disbursements
3. Accept July 2017 Assessor’s Report
4. Accept July 2017 Building Department Report
5. Accept July 2017 Fire Department Report
6. Accept July 2017 Public Works Department Report
7. Accept Resignation of Planning Director, Approve Promotion and New Job Descriptions and
Authorize Advertising for City Planner
8. Old Village Ph3 Street & Utility Improvements – Approve Pay Request No. 2.
9. 2017 Street Improvements – Approve Pay Request No. 2.
LAKE ELMO CITY COUNCIL MINUTES
AUGUST 15, 2017
Page 2 of 3
10. Approve the Addition of Columbus Day as an Observed Holiday
11. Approve Sally Manzara Nature Center Proposed Final Architectural Plans
12. Approve Renaming Irving Circle North of Inwood 5th Addition to Irving Court North
13. Approve Restricting Parking Along Certain Streets
14. Approve “A Guide to the Development and Usage of Sunfish Lake Park”
Councilmember Bloyer, seconded by Mayor Pearson, moved TO APPROVE THE CONSENT
AGENDA AS PRESENTED. Motion passed 5 - 0. ITEM 15: 2018 Street Improvements City Engineer Griffin presented the programmed street improvements planned for 2018 as part of the City’s Annual Street Maintenance Program in the 5 year Capital Improvement Plan.
Councilmember Bloyer, seconded by Councilmember Lundgren, moved TO APPROVE RESOLUTION NO. 2017-088, ORDERING PREPARATION OF A FEASIBILITY REPORT FOR THE 2018 STREET IMPROVEMENTS TO BE COMPLETED BY
FOCUS ENGINEERING, INC. IN THE NOT TO EXCEED AMOUNT OF $9,200.
Motion passed 5 – 0.
ITEM 16: 2017 Mill and Overlay – Approve Change Order No. 1
City Engineer Griffin provided a project overview and reported on the staff request to expand the
scope of the project to include additional areas, noting that due to favorable bids, the additional
area can be done within the amount budgeted for the project.
Councilmember Fliflet, seconded by Councilmember Bloyer, moved TO APPROVE CHANGE
ORDER NO. 1 FOR THE 2017 MILL & OVERLAY PROJECT, THEREBY INCREASING
THE CONTRACT AMOUNT BY $95,741.19 AND REMAINING WITHIN THE
BUDGETED AMOUNT. Motion passed 5 – 0.
ITEM 14: Approve “A Guide to the Development and Usage of Sunfish Lake Park”
City Administrator Handt provided a brief background on the development of the proposed
guide.
Councilmember Bloyer, seconded by Councilmember Nelson, moved TO POSTPONE THE CURRENT ITEM TO A FUTURE COUNCIL WORKSHOP. Motion passed 5 – 0. ITEM 10: Approve the Addition of Columbus Day as an Observed Holiday
Brief discussion held. It was noted that the represented employees have Columbus Day as an observed holiday as part of their contract.
LAKE ELMO CITY COUNCIL MINUTES
AUGUST 15, 2017
Page 3 of 3
Councilmember Fliflet, seconded by Councilmember Lundgren, moved TO ADOPT RESOLUTION 2017-086 ESTABLISHING THE ADDITION OF COLUMBUS DAY AS AN OFFICIALLY OBSERVED HOLIDAY BY THE CITY OF LAKE ELMO. Motion passed 5 – 0.
COUNCIL REPORTS
Mayor Pearson: Commented on the Library Board vote on the library parking lot project.
Councilmember Nelson: Thanked the Jaycees for their efforts on Huff n’ Puff Days.
Councilmember Lundgren: Volunteered at Huff n’ Puff Days, attended Lake Elmo Fire
Department pancake breakfast and attended a Fire Relief meeting.
Councilmember Bloyer: Congratulated City Planner Emily Becker on her promotion.
Councilmember Fliflet: No report.
STAFF REPORTS AND ANNOUNCEMENTS
Administrator Handt: Reported on the upcoming budget workshop and Roll out to Business event.
City Clerk Johnson: Noted that the City has a form on its website for reporting issues or making inquiries.
City Attorney Sonsalla: Working on updates to the Right of Way ordinance.
City Engineer Griffin: Working on Village Park Preserve and Royal Golf developments and focusing on capital improvement projects for next year.
Meeting adjourned at 7:31 pm.
LAKE ELMO CITY COUNCIL
ATTEST: ______________________________ Mike Pearson, Mayor _______________________________
Julie Johnson, City Clerk
STAFF REPORT
-- page 1 --
DATE: September 5, 2017
CONSENT
TO: Mayor and City Council
FROM: Brian Swanson, Finance Director
AGENDA ITEM: Approve Disbursements in the amount of $ 804,651.60
REVIEWED BY: Kristina Handt, City Administrator
BACKGROUND INFORMATION/STAFF REPORT:
The City of Lake Elmo has the fiduciary responsibility to conduct normal business operations.
Below is a summary of current claims to be disbursed and paid in accordance with State law and
City policies and procedures.
FISCAL IMPACT: $ 804,651.60
Claim # Amount Description
ACH $ 39,038.71 Payroll Taxes to IRS & MN Dept. of Revenue 08/17 & 08/31
ACH $ 17,634.47 Payroll Retirement to PERA 08/17 & 08/31
ACH $ 2,000.00 Payroll Retirement to MDCP 08/17 & 08/31
n/a $ 0.00 Payroll Checks (none)
Direct Deposits $ 88,753.25 Payroll Deposits 08/17 & 08/31
46332-46407 $ 654,609.02 Accounts Payable 09/05/17
2861-2863 $ 2,616.15 Accounts Payable 09/05/17 (Library Checks)
TOTAL $ 804,651.60
RECOMMENDATION:
If removed from the consent agenda, the recommended motion is as follows:
“Motion to approve the aforementioned disbursements in the amount of $ 804,651.60.”
ATTACHMENTS:
1. Accounts Payable – check register
STAFF REPORT
DATE: September 5, 2017
CONSENT
AGENDA ITEM: Hire Assistant City Administrator
SUBMITTED BY: Kristina Handt, City Administrator
BACKGROUND: The City advertised for applications for the Assistant City Administrator position from July 5-20. The week of August 7th, staff interviewed applicants.
ISSUE BEFORE COUNCIL: Should Jacob Foster be hired as the Assistant City Administrator at the terms described below?
PROPOSAL DETAILS/ANALYSIS: Staff is recommending the Council hire Jake Foster as the Assistant City Administrator. Staff is further recommending a starting bi-weekly salary of $2,116.80.
Mr. Foster has a few years of experience in the private sector working in various communications roles and recently worked at the City of Fridley as a Management Analyst.
FISCAL IMPACT: Cost of the position including taxes and benefits for the rest of 2017 is $22,250. OPTIONS: 1) Hire Jacob Foster as the Assistant City Administrator at the terms described above.
2) Offer the job to Mr. Foster under different terms
3) Offer position to another candidate
4) Re-advertise the position
RECOMMENDATION:
If removed from the consent agenda: Motion to hire Jacob Foster as the Assistant City Administrator with a starting bi-weekly salary of
$2,116.80.
ATTACHMENTS:
None
STAFF REPORT
DATE: 9/5/2017
CONSENT
MOTION
TO: City Council
FROM: Rob Weldon, Public Works Director
AGENDA ITEM: Drain Tile Installation / Mulch Purchase at Easton Village Park
REVIEWED BY: Emily Becker, Planning Director Kristina Handt, City Administrator
BACKGROUND: With construction of the Easton Village Development parkland was dedicated to the city for construction of a playground to be funded and installed by the city. Through the park construction process, the developer and city worked in conjunction to grade the site and install park amenities. The park and playground where planned be completed in July 2016, but due to unforeseen circumstances the park has not yet been fully completed.
ISSUE BEFORE COUNCIL: Should the City Council authorize installation of drain tile in the playground and purchase additional mulch to bring the park into compliance for fall/compaction
standards and allow for proper drainage? PROPOSAL DETAILS/ANALYSIS: In July 2016, city staff met with the developer of Easton Village
to address drainage issues within the Easton Village Playground area. The play area has heavily compacted soil and does not provide adequate drainage of rainwater. At that time, staff instructed the developer to obtain quotes for drain tile installation and provide those quotes to the city for consideration of drain tile installation to be funded by the city. The developer proceeded with drain tile installation without providing quotes or authorization from the city and was later denied payment for said installation. Since that time, the drain tile has not performed as it should and as a result there is an accumulation of water that is present in the play area of the park for several days after a rainfall. Staff feels that the developer installed drain tile has failed and is therefore seeking council approval to install new drain tile, properly bedded in washed rock and wrapped in fabric. Bids received for the drain tile installation ranged from; $7,045 (Capras Utilities), $4,490 (Miller Excavating), and $3,475 (Friedges Inc.). In addition to the installation of drain tile, staff is requesting authorization to purchase additional rubber mulch to cover the playground area and provide the needed fall impact protection required by ASTM for
playground safety standards. The initial order of mulch that was placed and shipped with the playground equipment in 2016 does not provide adequate ground coverage and fall protection. Cost for the rubber additional rubber mulch is $17,957 from Northland Recreation, whom initially supplied mulch for the
park. Staff is recommending purchasing mulch from this same vendor to stay consistent with matching mulch colors. FISCAL IMPACT: Park Dedication Funds will be the source of funding for both items listed above in an amount not to exceed $22,000
Page 2
OPTIONS: Approve installation of drain tile and purchase of mulch Deny installation of drain tile and purchase of mulch Table installation of drain tile and purchase of mulch RECOMMENDATION:
If removed from consent agenda; “Motion to recommend the installation of drain tile to Friedges Inc. and purchase of additional mulch from Northland Recreation for Easton Village Park in an amount not to exceed $22,000” ATTACHMENTS:
• Miller Excavation – Drain Tile
• Capras Utilities – Drain Tile
• Friedges Inc. –Drain Tile
• Northland Rec. Rubber Mulch
From: Steve St. Claire [mailto:steve.st.claire@millerexc.com]
Sent: Tuesday, August 15, 2017 6:39 PM
To: Rob Weldon <RWeldon@lakeelmo.org>
Subject: RE: Quotes
Easton Village Playground Drain tile
Remove Sidewalk Panel
Strip Topsoil
Connect to Existing Catch Basin
4” PVC
4” Cleanout
4” Draintile
Bedding Rock
Backfill with Material Onsite
Regrade Topsoil
TOTAL $3990.00
Easton Village
Prep & Hydroseed Disturbed Area $500.00
Steve St. Claire
President | Miller Excavating, Inc.
3741 Stagecoach Trail North | Stillwater, MN 55082
651.439.1637 Office |651.269.8176 Mobile |651.351.7210 Fax
steve.st.claire@millerexc.com | Email
The content of this email is the confidential property of Miller Excavating, Inc. and should not be copied, modified,
retransmitted, or used for any purpose except with Miller Excavating, Inc's written authorization. If you are not the
intended recipient, please delete all copies and notify us immediately.
Capra's Utilities Inc.
2340 Leibel Street
White Bear Lake, MN 55110
(651)762-2500
mike@capras.com
www.capras.com
PROPOSAL
ADDRESS
Lake Elmo c/o Rob Weldon
3803 Laverne Ave
Lake Elmo, MN 55042
PROPOSAL #5143
DATE 08/16/2017
EXPIRATION DATE 08/16/2018
DESCRIPTION AMOUNT
We will provide and install a drain tile system for the playground at Linden Ave & Linden Ln
in Lake Elmo.
Services
We will provide and install two 4" drain tile loops around the swing sets. the drain tile loops
will be spaced 6' apart and will be covered with 3/4" washed rock and filter fabric.
3,450.00
Services
We will provide and install a 4" schedule 40 PVC sewer line from the playground to the
storm sewer catch basin located North of the playground.
3,000.00
Services
We will provide and install seed and cover straw upon completion.
595.00
All mulch to be provided and installed by others.
1 1/2% per month charge on accounts over 30 days. All
agreements contingent upon strike, accident or delays beyond
our control. Any frost, ground water or rock excavation will be an
extra charge. All private underground utilities are the
responsibility of the Owner.
Per Minnesota Statute 514.011: A lien will be filed if contract
amount is not paid in full within 60 days of Invoice date.
TOTAL $7,045.00
Accepted By Accepted Date
PROPOSAL
FRIEDGES, INC.
Landscaping · Excavating Contractors 9380 202nd Street West, Lakeville, MN 55044 (952) 469-2996 · Fax: (952) 469-1755
Job: Lake Elmo Playground
Date
8/19/16 STREET
CITY, STATE and ZIP CODE Lake Elmo, MN
JOB LOCATION ARCHITECT
DATE OF PLANS
JOB PHONE
We Propose hereby to furnish material and labor – complete in accordance with specifications below, for the sum of:
* * * See Below * * * All material is guaranteed to be as specified. All work to be completed in a workmanlike manner according to standard practices. Any alteration or deviation from specifications below involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate. All agreements contingent upon strikes, accidents or delays beyond our control. Owner to carry fire, tornado, and other necessary insurance. Our workers are fully covered by Workman's Compensation Insurance.
Authorized
Signature ______ Note: This proposal may be withdrawn by us if not accepted within 30 (thirty) days.
Work for Playground
We hereby submit the following:
350LF of Playground Curb Furnished and Installed @ $20.69/LF Total: 7,241.50
Includes base work
Core Drill Drain Tile into existing Structure and 316LF of 4” Drain Tile, Fabric and Rock running from structure to city’s
specified location @ $3,475.00
Grand Total: $10,716.50
Excludes:
*Site Survey/ Staking *Soil Conditioning/ Testing *Bonds *Permits *Turf Restoration
PLEASE CALL IF YOU HAVE ANY QUESTIONS
Acceptance of Proposal – The above prices; specifications and conditions are satisfactory and are hereby accepted. You are authorized to do the work as specified. Payment will be made as outlined above. By signing you have read and are familiar with the Minnesota Mechanic's Lien Law.
Signature ________________ Date ________
QUOTATION
To: City of Lake Elmo
3800 Laverne Ave. North
Lake Elmo, MN 55042
Project: Eaton Lake
Rubber Surfacing
Date: August 11, 2017
Contact: Rob Weldon
Phone: 651-747-3941
Cell:
Fax:
Email: rweldon@lakeelmo.org
We are pleased to provide the following quotation on items supplied by See Below
Qty. Item Description Unit Price Extension
32.50 Tons PlaySafer Rubber Mulch Green/Black Color $17,957.00
Delivered in 2000 lbs. supersacs
* Prices supply only - Installation not included Sub Total $17,957.00
Freight included
Tax 6.875%
Total $17,957.00
IMPORTANT INFORMATION:
Quotation is valid for: 30 Days
Freight based on shipment to Lake Elmo, MN
Shipment can currently be made in - to be determined
Terms: Based on credit approval -down payment may be req.
Pricing based on above quantities – any changes may require a revised quotation.
Orders will be placed upon receipt of a Purchase Order or your signed acceptance of this quotation.
Make Purchase Orders to: Northland Recreation LLC 10085 Bridgewater Bay Woodbury, MN 55129
Thank You! Northland Recreation, LLC Mike Dorsey
Representative
ACCEPTED BY:____________________________________ DATE:_______________
10085 Bridgewater Bay
Woodbury, MN 55129
Phone 651.815.4097
Toll Free 888.371.4958 Fax 414.395.8538
Email info@northlandrec.com
Northland Recreation, LLC. greatly appreciates your consideration of our proposal. If it
is your desire to purchase any or all of the items listed in this proposal, we kindly ask
that you sign your acceptance on both pages of this quotation and complete the
following information to insure timely and accurate order entry.
Bill to address: (if different from quote) Ship to address: (if different from quote)
_________________________ __________________________
_________________________ __________________________
_________________________ __________________________
_________________________ __________________________
Delivery Contact: ____________________________
Phone Number(s): ____________________________
____________________________
Desired Delivery Date: ____________________________
* Please Note: Many factors are involved in the manufacturer’s actual ship dates. We will
make every attempt to accommodate your preferred date.
Purchase Order # (if applicable): ____________________
* Please Note: Purchase orders to be made out to Northland Recreation LLC
Is this project exempt from sales tax? ________
* If YES, please include a completed Certificate of Exemption
Color Selections (if applicable):
Additional Comments:
Terms:
O I / We understand that all accounts are payable to Northland Recreation LLC. according to the terms shown on each
invoice, and if not paid on or before said date, are then delinquent. I / We agree to pay any and all service charges added
each month to past due invoices. Terms are Net 30 days upon delivery with approved credit.
O Unless notified in writing to the contrary, all charges are due and payable in full at:
Northland Recreation LLC 10085 Bridgewater Bay Woodbury, MN 55129
O Credit approval may be required to complete this order.
O Additional charges may apply for applicable sales tax, extra unloading time, incorrect delivery addresses, and/or
cancellation of delivery without 24 hours prior notice.
O The Terms and Conditions of this signed quotation shall prevail over any inconsistent terms and conditions of a purchase
order, contract and / or confirmation related to this project.
ACCEPTED BY:____________________________________ DATE:_______________
STAFF REPORT
DATE: September 5, 2017
CONSENT
AGENDA ITEM: Parks Commission Membership Changes
SUBMITTED BY: Kristina Handt, City Administrator
BACKGROUND: At the August 1, 207 Council meeting, Jean Olinger was moved from 1st alternate to voting member with the resignation of Shane Weis. Tucker Pearce was moved from 2nd to 1st alternate and John Mayek was appointed 2nd alternate.
ISSUE BEFORE COUNCIL: Should Council approve Tucker Pearce as a voting member of the Parks Commission and Jean Olinger remains as 1st Alternate? PROPOSAL: At the August Parks Commission meeting, they requested that Tucker Pearce be made a voting member and Jean Olinger remain as 1st Alternate. OPTIONS: 1) Confirm Tucker Pearce as Voting Member of Parks Commission
2) Make no changes to previous appointment RECOMMENDATION: “Motion to confirm Tucker Pearce as voting member of Parks Commission”
STAFF REPORT
DATE: September 5, 2017
CONSENT
AGENDA ITEM: Private Development Projects – Approve Security Reductions for the
Boulder Ponds 2nd Addition; Boulder Ponds 5th Street North
Improvements; Hammes Estates 1st Addition; and Inwood 4th Addition
SUBMITTED BY: Jack Griffin, City Engineer
REVIEWED BY: Kristina Handt, City Administrator
Emily Becker, Planning Director Chad Isakson, Assistance City Engineer
ISSUE BEFORE COUNCIL: Should the City Council approve the security reductions for the Boulder Ponds 2nd Addition; Boulder Ponds 5th Street North Improvements; Hammes Estates 1st Addition; and Inwood 4th Addition? PROPOSAL DETAILS/ANALYSIS: Staff has received and processed a request to reduce the development security for various development projects. These requests have been reviewed and the following reductions are being recommended as follows:
Current Security Amount Proposed Security Amount 1. Boulder Ponds 2nd Addition: $ 533,844 $ 286,648
2. Boulder Ponds 5th Street Imp.: $ 745,004 $ 384,066 3. Hammes Estates 1st Addition: $3,169,912 $1,636,912 4. Inwood 4th Addition: $ 905,116 $ 288,267
Each development is at a various stage of completion and each reduction amount has been reviewed according to the extent of completion for each infrastructure component as detailed in the attached Security Reduction Worksheets. FISCAL IMPACT: It is the City’s goal to retain at all times during the subdivision improvements a security amount that is adequate to ensure completion of all elements of the improvements as protection to the City tax payers against the potential of developer default. With these reductions, the remaining security amounts held by the City remains sufficient to complete the remaining improvements. RECOMMENDATION: Staff is recommending that the City Council approve, as part of the Consent Agenda, the security reductions for the Boulder Ponds 2nd Addition; Boulder Ponds 5th Street North Improvements; Hammes Estates 1st Addition; and Inwood 4th Addition as detailed in this report and supporting documentation. If removed from the consent agenda, the recommended motion for the action
is as follows: “Move to approve security reductions for the Boulder Ponds 2nd Addition; Boulder Ponds 5th Street North Improvements; Hammes Estates 1st Addition; and Inwood 4th Addition as detailed in their
respective Security Reduction Worksheet.”
ATTACHMENTS: 1. Security Reduction Worksheet – Boulder Ponds 2nd Addition. 2. Security Reduction Worksheet – Boulder Ponds 5th Street North.
3. Security Reduction Worksheet – Hammes Estates 1st Addition. 4. Security Reduction Worksheet – Inwood 4th Addition.
BOULDER PONDS 2ND ADDITION Time of Performance: October 31, 2016DEVELOPMENT AGREEMENT AMOUNTSCATEGORY CONSTRUCTION 125% REMARKS #1 #2 #3 #4 #5 #6Grading NA NAIncluded in Boulder Ponds 1st AdditionSanitary Sewer $73,000 $91,250 $68,438Watermain $67,000 $83,750 $62,813Storm Sewer (w/pond structures) $39,500 $49,375 $37,031Streets $84,175 $105,219 $78,914Sidewalks/Trails $19,850 $24,813Surface Water Facilities $13,000 $16,250Street Lighting $12,000 $15,000Street Signs and Traffic Control Signs $1,600 $2,000Private Utilities (electricity, natural gas, telephone, and cable)Landscaping $75,000 $93,750Tree Preservation and Restoration NA NAWetland Mitigation and Buffers $1,000 $1,250Monuments $1,800 $2,250Erosion Control $36,650 $45,813Miscellaneous Facilities NA NARecord Drawings $2,500 $3,125TOTALS $427,075 $533,844RELEASED AMOUNTS:$247,195 $0 $0 $0 $0 $0CUMMULATIVE AMOUNTS:$247,195SECURITY AMOUNT REMAINING:$286,648DATE:9/5/2017REDUCTIONS
BOULDER PONDS 5TH STREET NORTH Time of Performance: October 31, 2017DEVELOPMENT AGREEMENT AMOUNTSCATEGORY CONSTRUCTION 125% REMARKS #1 #2 #3 #4 #5 #6Grading NA NAIncluded in Boulder Ponds 1st AdditionSanitary Sewer $46,600 $58,250 $43,688Watermain $64,000 $80,000 $60,000Storm Sewer (w/pond structures) $97,300 $121,625 $91,219Streets $287,700 $359,625 $269,719Sidewalks/Trails $71,000 $88,750Surface Water Facilities NA NAStreet Lighting NA NAStreet Signs and Traffic Control Signs $11,600 $14,500Private Utilities (electricity, natural gas, telephone, and cable)NALandscaping $100,753 $125,941Tree Preservation and Restoration NA NAWetland Mitigation and Buffers NA NAMonuments NA NAErosion Control NA NAMiscellaneous Facilities NA NARecord Drawings NA NATOTALS $678,953 $848,691RELEASED AMOUNTS:$103,688 $360,938 $0 $0 $0 $0CUMMULATIVE AMOUNTS:$103,688 $464,625SECURITY AMOUNT REMAINING:$745,004 $384,066DATE:2/21/2017 9/5/2017REDUCTIONS
HAMMES 1ST ADDITION Time of Performance: October 31, 2017DEVELOPMENT AGREEMENT AMOUNTSCATEGORY CONSTRUCTION 125% REMARKS #1 #2 #3 #4 #5 #6Grading $156,000 $195,000Sanitary Sewer $413,076 $516,345 $387,259Watermain $298,624 $373,280 $279,960Storm Sewer (w/pond structures) $492,748 $615,935 $461,951Streets $430,598 $538,247 $403,685Sidewalks/Trails $111,360 $139,200Surface Water Facilities NA NAStreet Lighting $54,000 $67,500Street Signs and Traffic Control Signs $6,300 $7,875Private Utilities (electricity, natural gas, telephone, and cable)Landscaping $244,922 $306,153Tree Preservation and Restoration NA NAWetland Mitigation and Buffers $50,000 $62,500Monuments $5,700 $7,125Erosion Control $195,986 $244,982Boardwalk $66,500 $83,125Record Drawings $10,000 $12,500TOTALS $2,535,813 $3,169,767RELEASED AMOUNTS:$1,532,855 $0 $0 $0 $0 $0CUMMULATIVE AMOUNTS:$1,532,855SECURITY AMOUNT REMAINING:$1,636,912DATE:9/5/2017REDUCTIONS
INWOOD 4TH ADDITION October 31, 2017DEVELOPMENT AGREEMENT AMOUNTSCATEGORY CONSTRUCTION 125% REMARKS #1 #2 #3 #4 #5 #6Grading NA NAIncluded in Overall Grading AgreementSanitary Sewer $86,227 $107,783.50 $80,838Watermain $173,821 $217,276.25 $162,957Storm Sewer $112,613 $140,766.25 $105,575Streets and Sidewalks $285,312 $356,640.00 $267,480Trails NA NASurface Water Facilities NA NAincluded in Grading AgreementStreet Lighting $24,000 $30,000.00By Xcel EnergyStreet Signs and Traffic Control Signs $1,320 $1,650.00Private Utilities (electricity, natural gas, telephone, and cable)Landscaping $32,000 $40,000.00Tree Preservation and Restoration NA NAincluded in Grading AgreementWetland Mitigation and Buffers NA NALOC Through VBWDMonuments $3,800 $4,750.00Erosion Control NA NAincluded in Grading AgreementMiscellaneous Facilities NA NANoneRecord Drawings $5,000 $6,250.00TOTALS $724,093 $905,116.00RELEASED AMOUNTS:$616,850 $0 $0 $0 $0 $0CUMMULATIVE AMOUNTS:$616,850SECURITY AMOUNT REMAINING:$288,267DATE:9/5/2017REDUCTIONSTime of Performance:
STAFF REPORT
DATE: September 5, 2017
CONSENT
AGENDA ITEM: Old Village Phase 3 Street, Drainage, and Utility Improvements - Change Order No. 2 SUBMITTED BY: Jack Griffin, City Engineer REVIEWED BY: Kristina Handt, City Administrator Rob Weldon, Public Works Director Chad Isakson, Project Engineer
ISSUE BEFORE COUNCIL: Should the City Council approve Change Order No. 2 for the Old Village Phase 3 Street, Drainage, and Utility Improvements? BACKGROUND: Douglas-Kerr Underground, LLC was awarded a construction contract to complete the Old Village Phase 3 Street, Drainage, and Utility Improvements on May 16, 2017. The project is in construction with an anticipated substantial completion date of October 27, 2017. PROPOSAL DETAILS/ANALYSIS: Douglas-Kerr Underground, LLC has submitted a change order to address two changes requested by the City as follows:
1. Apply a bonded fiber matrix mulch for purposes of restoring the area disturbed by utility construction on Lake Elmo Elementary School property. This product will provide a better final product based on the soil conditions and ultimate use of the property as a play area for children.
2. Removal of an existing shed, installation of new black vinyl fencing, and placement of new mulch that were needed to restore the playground located at 3825 Lake Elmo Avenue that was disturbed for purposes of installing utilities.
FISCAL IMPACT: This change order will increase the contract in the amount of $10,085.50 bringing the revised construction contract to $1,569,537.95. With this change order the project remains within the authorized project budget and contingencies. RECOMMENDATION: Staff is recommending that the City Council approve, as part of the Consent
Agenda, Change Order No. 2 for the Old Village Phase 3 Street, Drainage, and Utility Improvements. If removed from the consent agenda, the recommended motion for the action is as follows:
“Move to approve Change Order No. 2 for the Old Village Phase 3 Street, Drainage, and Utility Improvements, thereby increasing the contract amount by $10,085.50”. ATTACHMENTS:
1. Change Order No. 2.
STAFF REPORT
DATE: September 5, 2017
CONSENT
AGENDA ITEM: CSAH 13 (Ideal Avenue) Improvements – Approve Cooperative Agreement
Payment No. 3
SUBMITTED BY: Chad Isakson, Project Engineer
REVIEWED BY: Krintina Handt, City Administrator Jack Griffin, City Engineer
ISSUE BEFORE COUNCIL: Should the City Council approve Payment No. 3 for the CSAH 13 (Ideal
Avenue) Improvements? BACKGROUND, PROPOSAL DETAILS/ANALYSIS: In May 2017, the City of Lake Elmo entered
into Cooperative Agreement No. 10904 with Washington County for the cost sharing of the CSAH 13 (Ideal Avenue) Improvements. In accordance with the agreement payment schedule, Washington County has submitted Invoice #126547 in the amount of $196,478.62. The amount requested reflects the City’s share of the construction costs expended through partial pay estimate #2 to the general contractor and right-of-way costs to date. The invoice has been reviewed and payment is recommended in the amount requested. FISCAL IMPACT: No additional fiscal impact. Payment is proposed in accordance with Cooperative Agreement No. 10904 with Washington County. RECOMMENDATION: Staff is recommending that the City Council approve, as part of the Consent
Agenda, payment to Washington County in the amount of $196,478.62 for the CSAH 13 (Ideal Avenue) Improvements. If removed from the consent agenda, the recommended motion for the action is as follows:
“Move to approve payment to Washington County in the amount of $196,478.62 for CSAH 13 (Ideal Avenue) Improvements in accordance with Invoice #126547 attached and per Section G of Cooperative Agreement No. 10904.” ATTACHMENTS: 1. Washington County Invoice No. 126547 and supporting detail.
CSAH 13 ‐ TH 5 to CSAH 35 ‐ Billing Summary
City of Lake Elmo
County/City Cooperative Agreement #10904
Through Cost Split #2
8/15/2017
Estimated Cost
(from Cooperative
Agreement)
Current Cost
(based on Bid) Previously Billed
Current Amount
Due
Construction 328,120.80$ 57,686.50$ 29,508.54$ 28,177.96$
Design Engineering 38,999.17$ 38,999.17$ 38,999.17$ ‐$
Construction Engineering/Contract Administration 16,419.42$ ‐$ ‐$ ‐$
Right of Way
Road Improvements (36.1%)96,855.00$ 100,000.66$ ‐$ 100,000.66$
Storm Pond (20%)68,000.00$ 68,300.00$ ‐$ 68,300.00$
TOTAL 548,394.39$ 264,986.33$ 68,507.71$ 196,478.62$
STAFF REPORT
DATE: September 5, 2017
CONSENT
AGENDA ITEM: CSAH 15 (Manning Avenue) / 50th Street Traffic Signal Improvements –
Approve Washington County Cooperative Agreement Payment No. 2
SUBMITTED BY: Jack Griffin, City Engineer REVIEWED BY: Krintina Handt, City Administrator Chad Isakson, Assistant City Engineer
ISSUE BEFORE COUNCIL: Should the City Council approve Payment No. 2 for the CSAH 15 (Manning Avenue) / 50th Street Traffic Signal Improvements? BACKGROUND, PROPOSAL DETAILS/ANALYSIS: In March 2017, the City of Lake Elmo entered into Cooperative Agreement No. 10856 with Washington County for the City cost participation of the CSAH 15 (Manning Avenue) / 50th Street Traffic Signal Improvements. In accordance with the agreement Washington County has submitted Invoice #126550 in the amount of $18,939.35 bringing the total amount invoiced to date to $38,765.43. The amount requested reflects partial payments for
construction costs made to the contractor. The invoice has been reviewed and payment is recommended in the amount requested. FISCAL IMPACT: No additional fiscal impact. Payment is proposed in accordance with Cooperative Agreement No. 10856 with Washington County. RECOMMENDATION: Staff is recommending that the City Council approve, as part of the Consent
Agenda, payment to Washington County in the amount of $18,939.35 for the CSAH 15 (Manning
Avenue) / 50th Street Traffic Signal Improvements. If removed from the consent agenda, the
recommended motion for the action is as follows:
“Move to approve payment to Washington County in the amount of $18,939.35 for CSAH 15
(Manning Avenue) / 50th Street Traffic Signal Improvements in accordance with Invoice #126550 and Cooperative Agreement No. 10856.” ATTACHMENTS:
1. Washington County Invoice No. 126550 and supporting detail.
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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505137v1 SJS LA515-1
• 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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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 the 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
10
STAFF REPORT
DATE: 9/5/17
CONSENT
TO: City Council
FROM: Emily Becker, City Planner
AGENDA ITEM: Hammes Park Amenities Review
REVIEWED BY: Rob Weldon, Public Works Director
BACKGROUND: The Hammes Estates 1st Addition Development Agreement indicated that the developer shall deposit as escrow $107,554 to be held for park dedication that was owed for remaining parkland dedication (the development required 7.8 acres of land, and 5.7 acres of parkland was provided), and that the developer will receive credit for installation of a 16’ X 24’ shelter, picnic table, bike rack, grill station, retaining wall, fishing pier, canoe rack, concrete hard surface, woodland seed mix restoration, landscaping and parking lot improvements. The agreement also indicates that the City shall approve all improvements and that the developer may use the remaining balance of escrow to install additional improvements in the park upon City approval.
ISSUE BEFORE THE COUNCIL: The Council is being asked to review and approve the proposed improvements to the park within the Hammes Estates Development (Lakeridge Crossing). PROPOSAL DETAILS/ANALYSIS: Proposed Improvements. The improvements provided by the developer are attached to this report. The Parks Commission has in the past indicated that they would like to see a park shelter within the subject park similar to that of Pebble Park. The developer has proposed ordering the a 16’ X 24’ version of the Pebble Park shelter from the same supplier, which will have a 4” concrete slab that ties into the block
retaining wall. Because the shelter has a 10 week lead time for ordering, Staff has administratively approved the shelter. Public Works Director Comments. The Public Works Director has made the following comments:
• The Lake Elmo logo should be considered on the shelter.
• The boardwalk should be ADA compliant.
• Railing details must show treated lumber being used.
• Canoe rack should be black powder coated paint.
• Three trash cans should be provided that match tables, to be located off fishing pier, adjacent to shelter, and near parking lot.
FISCAL IMPACT:
Page 2
As mentioned above, the developer will receive credit from the escrow provided for a fee in lieu of parkland dedication. RECOMMENDATION: The Council is respectfully being asked as part of tonight’s consent agenda to approve the proposed improvements to the park near Goose Lake in the Hammes Estates Development (Lakeridge Crossing). If removed from tonight’s consent agenda, the Council may approve the improvements with the following motion:
“Move to approve proposed improvements to the park within Hammes Estates (Lakeridge Crossing).” ATTACHMENTS:
• Boardwalk plans
• Canoe rack
• Fishing pier details and picture
• Grill, picnic table, and bike rack detail
• Picture of Pebble Park Shelter
• Retaining wall detail
7699 Anagram Drive
Eden Prairie, MN 55344
PHONE 952-937-5150
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STAFF REPORT
DATE: September 5, 2017
CONSENT
TO: City Council
FROM: Greg Malmquist, Fire Chief
AGENDA ITEM: Conditional Job Offer to Part Time Firefighter Applicants, Nate Wagner and Kyle Jacket REVIEWED BY: Kristina Handt, City Administrator
BACKGROUND: The City advertised for applications for Part Time Firefighter positions. On Tuesday August 29th.
Applicants were interviewed by staff. ISSUE BEFORE COUNCIL: To make a conditional job offer to Nate Wagner and Kyle Jacket, to allow them to continue in the hiring process. PROPOSAL DETAILS/ANALYSIS: Staff is recommending the Council make the offer to both applicants to allow them to proceed in the process. Both applicants have meet the minimum requirements of the hiring process as well as the interview process. Upon approval of this Conditional Job Offer applicants will move forward in the process. Pending successful completion of the following: 1) Background Check, 2) Ability Test, 3) Pre-Placement Physical and 4) Pshychological Evaluation, applicants will be placed on the department as Part Time
Firefighters under a six month probationary period. FISCAL IMPACT: Psychological Exam = $415.00 x 2, Preplacement Physical Exam = $245.60 x 2 for a total of $1321.20. Wage of $17.00/hour when shift coverage starts. OPTIONS: 1) Make conditional job offer to continue with process. 2) Do not make a conditional job offer at this time
RECOMMENDATION: If removed from consent agenda:
Motion of a conditional job offer to Nate Wagner and Kyle Jacket, to allow them to continue with and complete the additional requirements of the hiring process. 1) Background Check, 2) Ability Test, 3) Pre-Placement Physical and 4) Pshychological Evaluation. ATTACHMENTS: None
STAFF REPORT
DATE: September 5, 2017
REGULAR
AGENDA ITEM: Old Village Phase 4 Street and Utility Improvements – Accept Petition
and Authorize Preliminary Design and Preparation of a Feasibility Report
SUBMITTED BY: Jack Griffin, City Engineer
REVIEWED BY: Kristina Handt, City Administrator
Chad Isakson, Assistance City Engineer
ISSUE BEFORE COUNCIL: Should the City Council accept a petition for municipal sanitary sewer service and authorize preliminary design and the preparation of a feasibility report for the Old Village Phase 4 Street and Utility Improvements? PROPOSAL DETAILS/ANALYSIS: The City of Lake Elmo is extending sanitary sewer to serve the existing properties in the Old Village area to replace the use of private on-site sewage treatment systems. The projects also include drainage improvements to continue addressing historic flooding issues in the Downtown area, the replacement of aged watermain pipes and reconstructing the public streets that are
disturbed during the work. The Improvements are being constructed in phases and through separate projects with the first three phases being constructed in 2015, 2016 and 2017. Additional project phases are necessary to extend lateral sanitary sewer mains along local street corridors from the main line located
in Lake Elmo Avenue and Laverne Avenue. At the September 6, 2016 council meeting, staff presented an Old Village Capital Improvement Plan
(CIP) to address the future sewer extension phasing plan which identified local neighborhood areas to receive sewer over the next several years. As with all Capital Improvement Plans, the CIP program serves as a guide for staff for planning and budgeting purposes and for bringing improvements forward for council consideration for the program year, however the CIP phasing plan should not be considered a firm schedule or commitment by the City that the improvement will be completed. On April 4, 2016, the City of Lake Elmo received a Petition, pursuant to Minnesota Statute 429, requesting sanitary sewer service along 32nd Street, east of Lake Elmo Avenue. The petition (see attached Petition for Local Improvements) was reviewed and certified by the City Clerk. Over the years, staff has communicated with property owners that the City will likely prioritize future project phases based on property owner request and need. Therefore the Old Village CIP was presented with the Phase 3
Improvements to be completed in 2017 to include the Lake Elmo Elementary School area and the 31st Street/Laverne Ct/Layton Ct neighborhood. The 32nd Street area was then scheduled to be completed in 2018 along with a sewer extension along 36th Street North and Layton Avenue North (see attached
Location Map). In order to initiate the Old Village Phase 4 Street and Utility Improvements and to maintain special
assessments as a viable funding alternative, the City Council must direct the preparation of a feasibility report meeting the statutory process for public improvements that are specially assessed. The report will address the necessary lateral sanitary sewer extensions to replace individual on-site treatment systems for the project service area. The improvements will also include the replacement of existing watermain lines
and the reconstruction of streets disturbed during the work along with drainage improvements to address
area flooding and as necessary to meet storm water permitting requirements. The proposed service areas for the Old Village Phase 4 Street and Utility Improvements are as follows:
• 32nd Street North, from CSAH 17 to the east end.
• 36 Street North, from Laverne Avenue North to Layton Avenue North.
• Layton Avenue North, from 36th Street North to CSAH 14 (Stillwater Blvd).
The report will advise on the scope of recommended improvements along each corridor, provide estimated project costs, identify easement and right-of-way, permits, and other requirements of other local agencies needed to implement the improvements, and recommend whether the improvements are necessary, cost effective, and feasible. The Report will also provide a proposed preliminary assessment roll for each of the benefitting properties based upon the City’s Special Assessment Policy for Local Improvements. In addition to the authorization of the feasibility report, it is necessary to concurrently authorize preliminary design services to conduct a more thorough investigation of the service area topography, building first floor and basement elevations, and to prepare the preliminary drainage design and lift station design to identify right-of-way/easement needs for the project. The City Engineer has met with
SEH, Inc. to review the preliminary design scope of work and obtained a fee for those initial services. FISCAL IMPACT: $26,400.
If authorized, FOCUS Engineering Inc., will prepare a feasibility report in a not to exceed amount of $7,500 for the Old Village Phase 4 Street and Utility Improvements and SEH, Inc. will initiate the
preliminary design services in a not to exceed amount of $18,900 to better inform the feasibility study recommendations and project scope. If the improvements are ordered, the report and preliminary design costs will be charged against the project fund and become assessable to the benefitting properties. Should the project not be constructed, these costs cannot be assessed. RECOMMENDATION: Staff is recommending that the City Council authorize SEH, Inc. to complete preliminary design services in the not to exceed amount of $18,900, and authorize FOCUS Engineering, Inc. to prepare a Feasibility Report for the Old Village Phase 4 Street and Utility Improvements in the not to exceed amount of $7,500. The recommended motion for this action is as follows: “Move to approve Resolution No. 2017-92, Declaring Adequacy of Petition and Ordering preliminary design and preparation of a Feasibility Report for the Old Village Phase 4 Street and Utility
Improvements in the not to exceed amount of $26,400.”
ATTACHMENTS: 1. Resolution Ordering Preliminary Design and Preparation of a Feasibility Report.
2. Petition for Local Improvements from 32nd Street (East of Lake Elmo Avenue). 3. Old Village Phase 4 Preliminary Design Proposal from SEH, Inc. 4. Project Location Map.
CITY OF LAKE ELMO
WASHINGTON COUNTY STATE OF MINNESOTA RESOLUTION NO. 2017-92 A RESOLUTION DECLARING ADEQUACY OF PETITION AND ORDERING PRELIMINARY DESIGN AND THE PREPARATION OF A FEASIBILITY REPORT FOR THE OLD VILLAGE PHASE 4 STREET AND UTILITY IMPROVEMENTS WHEREAS, in April, 2016 a petition was received from the owners of real property abutting 32nd Street North, from CSAH 17 to the east end requesting municipal sanitary sewer service; and WHEREAS, in September 2016 the City Council directed staff to pursue the remaining lateral sanitary sewer projects in the Old Village area over the next several years and adopted the Old Village Capital Improvement Plan; and
WHEREAS, it is proposed to assess all or a portion of the cost of the improvements pursuant to the City’s Special Assessment Policy and Minnesota Statutes, Chapter 429. NOW, THEREFORE, IT IS HEREBY RESOLVED, 1. The Petition requesting the improvements is hereby declared to be signed by the required percentage of owners of property affected thereby. This declaration is made in conformity to Minnesota Statutes 429.035. 2. The Petition for the proposed improvements are hereby referred to the City Engineer, and other
supporting engineering consultants as deemed necessary by the City Engineer, to complete Preliminary Design Services and a feasibility report in accordance with Minnesota Statues, Chapter 429 for the proposed improvements, and to report to the council with all convenient speed advising the council in a preliminary way as to whether the proposed improvement is necessary, cost-effective, and feasible; whether it should best be made as proposed or in connection with some other improvement; the estimated cost of the improvement as
recommended; and a description of the methodology used to calculate individual assessments for affected parcels. ADOPTED BY THE LAKE ELMO CITY COUNCIL ON THE FIFTH DAY OF SEPTEMBER, 2017.
CITY OF LAKE ELMO By: __________________________ Mike Pearson
Mayor (Seal) ATTEST: ________________________________ Julie Johnson
City Clerk
Engineers | Architects | Planners | Scientists
Short Elliott Hendrickson Inc., 3535 Vadnais Center Drive, St. Paul, MN 55110-5196
SEH is 100% employee-owned | sehinc.com | 651.490.2000 | 800.325.2055 | 888.908.8166 fax
August 25, 2017 RE: City of Lake Elmo Old Village Phase 4 Improvements
SEH No. P-143403 Jack Griffin City Engineer
City of Lake Elmo 3800 Laverne Avenue N Lake Elmo, MN 55042
Dear Mr. Griffin: Thank you for the opportunity to meet yesterday to review the City’s proposed Old Village Phase 4 street, utility and drainage improvements planned for 2018. The project area consists of 32nd Street east of Lake Elmo Ave., 36th Street east of Laverne Ave., Layton Ave. from 36th Street to Stillwater Blvd., and potentially the easement area east of Layton Ave. and the alley west of Layton Ave. We understand the City would like assistance in gathering project area information and reviewing some potential options for sanitary sewer, drainage, and other improvements. The
attached spreadsheet shows proposed services to accomplish this. If acceptable, we propose to furnish these services in accordance with the Master Agreement
between SEH and the City of Lake Elmo on an hourly basis plus reimbursable expenses for a maximum fee of $18,900. We have survey crew and other staff availability now to perform this work.
If this proposal is acceptable, please sign below and return a copy for our records. If you need any further information or wish to review this together, please contact me at 651.490.2017. Sincerely,
Todd M. Blank, PE Principal c. Chad Isakson, Focus Engineering
Accepted this _______ day of _______________, 2017 CITY OF LAKE ELMO, MINNESOTA
By ____________________________________
s:\ko\l\lakmo\common\rfps\old village ph 4\old village 4 survey and prelim des proposal.docx
Old Village Phase 4 Improvements
SHORT ELLIOTT HENDRICKSON: PROJECT WORK PLAN PROJECT NAME: Old Village Phase 4 Improvements PROJECT NUMBER: LAKMO P-143403 CLIENT: CITY OF LAKE ELMO CLIENT CONTACT: Jack Griffin, Chad Isakson
PROJECT MANAGER: Todd Blank
TOTAL HOURS 141 7.5 37.5 4 8 76 8HOURLY BILLING RATE $149.00 $133.00 $107.00 $107.00 $107.00 $126.00 0.575 TOTAL LABOR COST $16,500 $1,117.50 $4,987.50 $428.00 $856.00 $8,132.00 $1,008.00 $190.00 $2,200.00% OF TOTAL COST 6.8%30.2%2.6%5.2%49.2%6.1%
Task DESCRIPTION OF TASK Todd Blank Jeff Thene Eric Miller Adam Bona Greg Tvedt Rebecca Nestingen Survey Equipment
Project Mgr.Lead Tech Project Eng. Sr. Tech Surveyor Water Quality Unit Total
32nd St., 36th St. & Layton Ave
-
1 Survey & Preliminary Design $16,529.00 $2,390.00 $18,900 -
Topographic Survey $8,414.00 $2,304.00 $10,718.00 1 1 76 180 104.00 2,200.00
Create exhibits with survey info $989.00 $69.00 $1,058.00 1 8 120 69.00
Meet with property owners, determine low floor and proposed service locations (21 properties)$3,724.00 $3,724.00 28 -
Review potential gravity san sewer area,$415.00 $415.00 1 2 -
Preliminary review of lift station options $710.00 $710.00 1 1 4 -
Preliminary drainage area review, review options for storm sewer and treatment $1,572.00 $1,572.00 2 2 8 -
Review project area and options with City Eng, determine next steps $705.00 $17.00 $722.00 2.5 2.5 30 17.00
-
- Total:$18,900 -
EXPENSES
Mileage AutoTask TotalExpenses Task TotalLabor Task Total
Old Village Capital Improvement PlanPhasing Plan; Schedule and Assessment MethodologySEPTEMBER 6, 2016 FOCUSENGINEERING, inc.OLD VILLAGE CIP – PHASING PLANPHASE 3PHASE 4PHASE 5PHASE 7PHASE6PHASE 6PHASE 4PHASE 3NOT INCLUDED NOT INCLUDEDNOT INCLUDEDNOT INCLUDED