Section
93.01
Unloading on
street or sidewalk
93.02
Street and
sidewalk obstruction
93.03
Materials on
street or sidewalk
93.20
Election to
manage the public right-of-way
93.21
Definitions and
adoption of rules by reference
93.22
Permit
requirement
93.23
Permit
applications
93.24
Issuance of
permit; conditions
93.25
Permit fees
93.26
Right-of-way
patching and restoration
93.27
Supplementary
applications
93.28
Denial of permit
93.29
Installation
requirements
93.30
Inspection
93.31
Work done without
a permit
93.32
Supplementary
notification
93.33
Revocation of
permits
93.34
Mapping data;
information required
93.35
Location of
facilities
93.36
Damage to other
facilities
93.37
Right-of-way
vacation
93.38
Indemnification
and liability
93.39
Abandoned
facilities; removal of abandoned facilities
93.40
Appeal
93.41
Reservation of
regulatory and police powers
Cross-reference:
Assessable
current services, see § 92.01
§ 93.01 UNLOADING ON STREET OR SIDEWALK.
No person shall unload any heavy
material in the streets of the city by throwing or letting the material fall
upon the pavement of any street, alley, sidewalk, or other public way, without
first placing some sufficient protection over the pavement.
Penalty, see § 10.99
§ 93.02 STREET AND SIDEWALK OBSTRUCTION.
No person shall obstruct any street,
alley, sidewalk, or other public way within the city by erecting thereon any
fence or building, or permitting any fence or building to remain thereon. Each day that any fence or building is
permitted to remain upon the public way shall constitute a separate offense.
Penalty, see § 10.99
§ 93.03 MATERIALS ON STREET OR SIDEWALK.
No person shall encumber any street or
sidewalk. No owner, occupant, or person
having the care of any building or lot
of land, bordering on any street or sidewalk, shall permit it to be encumbered
with barrels, boxes, cans, articles, or substances of any kind, so as to
interfere with the free and unobstructed use thereof.
Penalty, see § 10.99
§ 93.20 ELECTION TO MANAGE THE PUBLIC RIGHT-OF-WAY.
In accordance with the authority
granted to the city under state and federal statutory, administrative, and
common law, the city hereby elects pursuant to this chapter to manage
rights-of-ways within its jurisdiction.
§ 93.21 DEFINITIONS AND ADOPTION OF RULES BY
REFERENCE.
Minn. Rules Ch. 7819, as it may be
amended from time to time, is hereby adopted by reference and is incorporated
into this code as if set out in full. The definitions included in Minn. Rules
part
7819.0100 subps. 1 through
23, as it may be amended from time to time, are the definitions of the terms
used in the following provisions of this subchapter.
§ 93.22 PERMIT REQUIREMENT.
(A) Permit required. Except as otherwise provided in this code, no
person may obstruct or excavate any right-of-way without first having obtained
the appropriate permit from the city.
(1) Excavation permit. An excavation permit is required 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
facilities described therein, to the extent and for the duration specified
therein.
(2) Obstruction permit. An obstruction permit is required to hinder
free and open passage over the specified portion of right-of-way by placing
equipment described therein on the right-of-way, to the extent and for the
duration specified therein. An obstruction permit is not required if a person
already possesses a valid excavation permit for the same project.
(B) 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 permit or permit extension is
granted.
(C) Delay penalty. In accordance with Minn. Rules part 7819.1000
subp. 3, as it may be amended from time to time and notwithstanding division
(B) 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 the Ordinance Establishing Fees and Charges,
adopted pursuant to § 30.11 of this code, as it may be amended from time
to time.
(D) Permit display. Permits issued under this subchapter shall be
conspicuously displayed or otherwise available at all times at the indicated
work site and shall be available for inspection by the Director.
Penalty, see § 10.99
§ 93.23 PERMIT APPLICATIONS.
Application for a permit shall contain,
and will be considered complete only upon compliance with the requirements of
the following provisions:
(A) Submission of a completed permit
application form, including all required attachments, scaled drawings showing
the location and area of the proposed project and the location of all known
existing and proposed facilities, and the following information:
(1) Each permittee’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
or self-insurance:
(a) Verifying that an
insurance policy has been issued to the registrant by an insurance company
licensed to do business in the state, or a form of self-insurance acceptable to
the Director;
(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, including, but 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 coverages;
(d) Requiring that the
Director be notified 30 days in advance of cancellation of the policy or
material modification of a coverage term;
(e) Indicating
comprehensive liability coverage, automobile liability coverage, workers
compensation and umbrella coverage established by the Director in amounts
sufficient to protect the city and the public and to 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 it may be amended from time to time as recorded and certified
to by the Secretary of State.
(6) A copy of the person's order
granting a certificate of authority from the Minnesota Public Utilities
Commission or other applicable state or federal agency, where the person is
lawfully required to have the certificate from the Commission or other state or
federal agency.
(B) Payment of money due the city for:
(1) Permit fees as established
by the Ordinance Establishing Fees and Charges adopted pursuant to § 30.11
of this code, as that ordinance may be amended from time to time, estimated
restoration costs and other management costs;
(2) Prior obstructions or
excavations;
(3) Any undisputed loss, damage, or
expense suffered by the city because of the applicant's prior excavations or
obstructions of the rights-of-way or any emergency actions taken by the city;
or
(4) Franchise fees or other
charges as established by the Ordinance Establishing Fees and Charges adopted
pursuant to § 30.11 of this code, as that ordinance may be amended from
time to time, if applicable.
§ 93.24 ISSUANCE OF PERMIT; CONDITIONS.
(A) Permit issuance. If the applicant has satisfied the
requirements of this chapter, the Director shall issue a permit.
(B) Conditions. The Director may impose reasonable conditions
upon the issuance of the permit and the performance of the applicant thereunder
to protect the health, safety, and welfare or when necessary to protect the
right-of-way and its current use.
§ 93.25 PERMIT FEES.
Permit fees shall be in an amount
established in the Ordinance Establishing Fees and Charges, adopted pursuant to
§ 30.11, as it may be amended from time to time.
(A) Excavation permit fee. The city shall establish an excavation permit
fee as established by the Ordinance Establishing Fees and Charges adopted
pursuant to § 30.11 of this code, as that ordinance may be amended from
time to time, in an amount sufficient to recover the following costs:
(1) The city management costs;
and
(2) Degradation costs, if
applicable.
(B) Obstruction Permit Fee. The city shall establish the obstruction
permit fee as established by the Ordinance Establishing Fees and Charges
adopted pursuant to § 30.11 of this code, as that ordinance may be amended
from time to time, and shall be in an amount sufficient to recover the city
management costs.
(C) 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 those
fees within 30 days of billing.
(D) Non-refundable. Permit fees as established by the
Ordinance Establishing Fees and Charges adopted pursuant to § 30.11 of
this code, as that ordinance may be amended from time to time, that were paid
for a permit that the Director has revoked for a breach as stated in § 93.33
are not refundable.
(E) Application to franchises. Unless otherwise agreed to in a
franchise, management costs may be charged separately from and in addition to
the franchise fees imposed on a right-of-way user in the franchise.
(F) All permit fees shall be
established consistent with the provisions of Minn. Rules part 7819.100, as it
may be amended from time to time.
Penalty, see § 10.99
§ 93.26 RIGHT-OF-WAY PATCHING AND RESTORATION.
(A) Timing. The work to be done under the excavation
permit, and the patching and restoration of the right-of-way as required
herein, must be completed within the dates specified in the permit, increased
by as many days as work could not be done because of circumstances beyond the
control of the permittee or when work was prohibited as unseasonal or
unreasonable under this subchapter.
(B) Patch and restoration. The permittee shall patch its own work. The city may choose either to have the
permittee restore the right-of-way or to restore the right-of-way itself.
(1) City restoration. If the city restores the right-of-way, the
permittee shall pay the costs thereof within 30 days of billing. If following the restoration, the pavement
settles due to the permittee's improper backfilling, the permittee shall pay to
the city, within 30 days of billing, all costs associated with having to
correct the defective work.
(2) Permittee restoration. If the permittee restores the right-of-way
itself, it shall at the time of application for an excavation permit post a
construction performance bond in accordance with the provisions of Minn. Rules
part 7819.3000, as it may be amended from time to time.
(C) Standards. The permittee shall perform patching and
restoration according to the standards and with the materials specified by the
city and shall comply with Minn. Rules part 7819.1100, as it may be amended
from time to time. The Director 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.
(D) Duty to correct defects. The permittee shall correct defects in
patching, or restoration performed by the permittee or its agents. The permittee upon notification from the
Director, shall correct all restoration work to the extent necessary, using the
method required by the Director. The
work shall be completed within five calendar days of the receipt of the notice
from the Director, not including days during which work cannot be done because
of circumstances constituting force majeure or days when work is prohibited as
unseasonal or unreasonable under this subchapter.
(E) Failure to restore. If the permittee fails to restore the
right-of-way in the manner and to the condition required by the Director, or
fails to satisfactorily and timely complete all restoration required by the
Director, the Director 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 the permittee fails to pay as required,
the city may exercise its rights under the 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 as
established by the Ordinance Establishing Fees and Charges adopted pursuant to
§ 30.11 of this code, as that ordinance may be amended from time to time. However, the right-of-way user shall remain
responsible for patching and the degradation fee shall not include the cost to
accomplish these responsibilities.
§ 93.27 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
submitted before the permit end date.
§ 93.28 DENIAL OF PERMIT.
The city may deny a permit for failure
to meet the requirements and conditions of this chapter or if the city
determines that the denial is necessary to protect the health, safety, and
welfare or when necessary to protect the right-of-way and its current use.
§ 93.29 INSTALLATION REQUIREMENTS.
The excavation, backfilling, patching
and restoration, and all other work performed in the right-of-way shall be done
in conformance with Minn. Rules part 7819.1100, as it may be amended from time
to time and other applicable local requirements, in so far as they are not
inconsistent with M.S. §§ 237.162 and 237.163, as they may be amended from
time to time.
§ 93.30 INSPECTION.
(A) Notice of completion. When the work under any permit hereunder
is completed, the permittee shall furnish a completion certificate in
accordance Minn. Rules part 7819.1300, as it may be amended from time to time.
(B) Site inspection. The permittee shall make the work-site
available to city personnel 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 Director.
(1) At the time of inspection,
the Director 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 Director 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 ten days after issuance of the order,
the permittee shall present proof to the Director that the violation has been
corrected. If proof has not been
presented within the required time, the Director may revoke the permit pursuant
to § 93.33.
§ 93.31 WORK DONE WITHOUT A PERMIT.
(A) Emergency situations.
(1) Each person with facilities
in the right-of-way shall immediately notify the city of any event regarding
its facilities which it considers to be an emergency. The owner of the facilities may proceed to
take whatever actions are necessary to respond to the emergency. Within two business days after the occurrence
of the emergency, the owner shall apply for the necessary permits, pay the fees
associated therewith and fulfill the rest of the requirements necessary to
bring itself into compliance with this chapter for the actions it took in
response to the emergency.
(2) If the city becomes aware of
an emergency regarding facilities, the city will attempt to contact the local
representative of each facility owner affected, or potentially affected, by the
emergency. In any event, the city may
take whatever action it deems necessary to respond to the emergency, the cost
of which shall be borne by the person 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 this code,
deposit with the city the fees necessary to correct any damage to the
right-of-way and comply with all of the requirements of this chapter.
§ 93.32 SUPPLEMENTARY NOTIFICATION.
If the obstruction or excavation of the
right-of-way begins later or ends sooner than the date given on the permit, the
permittee shall notify the Director of the accurate information as soon as this
information is known.
§ 93.33 REVOCATION OF 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 the permittee shall
include, but shall not be limited, to the following:
(1) The violation of any
material provision of the right-of-way permit;
(2) An evasion or attempt to
evade any material provision of the right-of-way permit, or the perpetration or
attempt to perpetrate any fraud or deceit upon the city or its citizens;
(3) Any material
misrepresentation of fact in the application for a right-of-way permit;
(4) The failure to complete the
work in a timely manner; unless a permit extension is obtained or unless the
failure to complete work is due to reasons beyond the permittees control; or
(5) The failure to correct, in a
timely manner, work that does not conform to a condition indicated on an order
issued pursuant to § 93.30.
(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 that violation. The demand shall state that continued
violations may be cause for revocation of the permit. A substantial breach, as stated above, will
allow the 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. Within 24 hours of receiving notification of
the breach, the permittee shall provide the city with a plan, acceptable to the
city, that will cure the breach. The
permittee's failure to so contact the city, or the permittee's failure to
submit an acceptable plan, or the permittee’s failure to reasonably implement
the approved plan, shall be cause for immediate revocation of the permit.
(D) Reimbursement of city costs. If a permit is revoked, the permittee shall
also reimburse the city
for the city's reasonable
costs, including restoration costs and the costs of collection and reasonable
attorneys' fees incurred in
connection with the revocation.
§ 93.34 MAPPING DATA; INFORMATION REQUIRED.
Each permittee shall provide mapping
information required by the city in accordance with Minn. Rules parts 7819.4000
and 7819.4100, as it may be amended from time to time.
§ 93.35 LOCATION OF FACILITIES.
(A) Compliance required. Placement, location, and relocation of
facilities must comply with applicable laws, and with Minn. Rules parts
7819.3100, 7819.5000 and 7819.5100, as they may be amended from time to time,
to the extent the rules do not limit authority otherwise available to cities.
(B) Corridors. The city may assign specific corridors within
the right-of-way, or any particular segment thereof as may be necessary, for
each type of facilities 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.
(C) Limitation of space. To protect the health, safety, and welfare or
when necessary to protect the right-of-way and its current use, the Director
shall have the power to prohibit or limit the placement of new or additional
facilities within the right-of-way. In
making those decisions, the Director 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.
§ 93.36 DAMAGE TO OTHER FACILITIES.
When the city does work in the
right-of-way and finds it necessary to maintain, support, or move facilities to
protect it, the Director shall notify the local representative as early as is
reasonably possible and placed as required.
The costs associated therewith will be billed to that registrant and
must be paid within 30 days from the date of billing. Each facility owner shall be responsible for
the cost of repairing any facilities in the right-of-way which it or its
facilities damages. Each facility owner
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 owner’s facilities.
§ 93.37 RIGHT-OF-WAY VACATION.
If the city vacates a right-of-way
which contains the facilities of a registrant, the registrant’s rights in the
vacated right-of-way are governed by Minn. Rules part 7819.3200, as it may be
amended from time to time.
§ 93.38 INDEMNIFICATION AND LIABILITY.
By applying for and accepting a permit
under this chapter, a permittee agrees to defend and indemnify the city in
accordance with the provisions of Minn. Rules 7819.1250, as it may be amended
from time to time.
§ 93.39 ABANDONED FACILITIES; REMOVAL OF ABANDONED
FACILITIES.
Any person who has abandoned facilities
in any right-of-way shall remove them 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 Director.
§ 93.40 APPEAL.
A right-of-way user that has been
denied registration; has been denied a permit; has had permit revoked; or
believes that the fees imposed are invalid, may have the 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. A decision by the City Council affirming the
denial, revocation, or fee as imposition will be in writing and supported by
written findings establishing the reasonableness of the decision.
§ 93.41 RESERVATION OF REGULATORY AND POLICE POWERS.
A permittees or registrants 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.