2003-11
I
I
I
BILL NO. 2003-11
AN ORDINANCE RELATING TO THE ADMINISTRATION
AND REGULATION OF PUBLIC RIGHTS-OF-WAY IN THE
PUBLIC INTEREST, AND TO PROVIDE FOR THE
ISSUANCE AND REGULATION OF RIGHT-OF-WAY PERMITS;
ADDING SECTION 802 TO THE RICHFIELD CITY CODE
THE CITY COUNCIL OF THE CITY OF RICHFIELD, MINNESOTA ORDAINS:
Section 1. The Richfield City Code is amended to add a new Section 802 to read as
follows:
Section 802 - RIGHT-OF-WAY MANAGEMENT
802.01 Findings, Purpose, and Intent.
To provide for the health, safety and welfare of its citizens, and to ensure the integrity of its
streets and the appropriate use of the rights-of-way, the city strives to keep its rights-of-way in a
state of good repair and free from unnecessary encumbrances.
Accordingly, the city enacts this new Section of this code relating to right-of-way permits and
administration. This Section imposes reasonable regulation on the placement and maintenance
of facilities and equipment currently within the city's 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 Section, persons excavating and obstructing the rights-of-way will bear financial
responsibility for their work through the recovery of out-of-pocket and projected costs from
persons using the public rights-of-way.
This Section shall be interpreted consistently with 1997 Session Laws, Chapter 123, substantially
codified in Minnesota Statutes Sections 237.16, 237.162, 237.163, 237.79, 237.81, and 238.086
(the "Act") and the other laws governing applicable rights of the city and users of the right-of-
way. This Section shall also be interpreted consistent with Minnesota Rules 7819.0050 -
7819.9950 where possible. To the extent that any provision of this Section cannot be interpreted
consistently with the Minnesota Rules, the interpretation most consistent with the Act and other
applicable statutory and case law is intended.
802.03
Election to Mana2:e the Public Ri2:hts-of-Wav
Pursuant to the authority granted to the city under state and federal statutory, administrative and
common law, the city elects pursuant Minnesota Statutes, section 237.163 subdivision 2(b), to
manage rights-of-way within its jurisdiction.
802.05 Definitions. The following definitions apply in this Section of this code.
References to "subdivisions" are unless otherwise specified references to subdivisions in this
Section.
~
Subd. 1. "Abandoned Facility" means 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.
Subd. 2. "Applicant" means any person requesting permission to excavate or
obstruct a right-of-way.
Subd. 3. "City" means the city of Richfield, Minnesota. For purposes of Section
802.57, city means its elected officials, officers, employees and agents.
Subd. 4.
"Commission" means the Minnesota Public Utilities Commission.
Subd.5. "Congested Right-of-Way" means a crowded condition in the subsurface
of the public right-of-way that occurs when the maximum lateral spacing between existing
underground facilities does not allow for construction of new underground facilities without
using hand digging to expose the existing lateral facilities in conformance with Minnesota
Statutes, section 216D.04. subdivision 3, over a continuous length in excess of 500 feet.
Subd. 6. "Construction Performance Bond" means any of the following forms of
security provided at permittee's option:
A.
B.
C.
Individual project bond, including a "license and permit" bond;
Cash deposit;
Security of a form listed or approved under Minnesota Statutes, section. 15.73,
subdivision;
Letter of Credit, in a form acceptable to the city;
Self-insurance, in a form acceptable to the city;
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.
D.
E.
F.
Subd.7. "Degradation" means a decrease in the useful life of the right-of-way
caused by excavation in or disturbance of the right-of-way, resulting in the need to reconstruct
such right-of-way earlier than would be required if the excavation or disturbance did not occur.
Subd. 8. "Degradation Cost" subject to Minnesota Rules 7819.1100 means the cost
to achieve a level of restoration as determined by the city at the time the permit is issued, not to
exceed the maximum restoration shown in plates 1 to 13, set forth in Minnesota Rules parts
7819.9900 to 7819.9950.
Subd.9. "Degradation Fee" means 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.
Subd.10.
"Department" means the department of public works of the city.
I
I
I
I
I
I
Subd. 11. "Department Inspector" means any person authorized by the city to carry
out inspections related to the provisions of this Section.
Subd. 12. "Director" means the Director of the department of public works of the
city, or her or his designee.
Subd. 13. "Delay Penalty" is the penalty imposed as a result of unreasonable delays
in right-of-way excavation, obstruction, patching, or restoration as established by permit.
Subd.14. "Emergency" means 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.
Subd. 15. "Equipment" means any tangible asset used to install, repair, or maintain
facilities in any right-of-way.
Subd. 16. "Excavate" means to dig into or in any way remove or physically disturb
or penetrate any part of a right-of-way.
Subd. 17. "Excavation permit" means the permit which, pursuant to this Section,
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 such permit.
Subd. 18. "Excavation permit fee" means money paid to the city by an applicant to
cover the costs as provided in Section 802.23.
Subd. 19. "Facility or Facilities" means tangible asset in the public right-of-way
required to provide utility service. The term does not include Facilities to the extent the location
and relocation of such Facilities are preempted by Minnesota Statutes, section 161.45, governing
utility facility placement in state trunk highways.
Subd. 20. "Five-year project plan" shows projects adopted by the city for
construction within the next five years.
Subd. 21. "High Density Corridor" means 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.
Subd. 22. "Hole" means an excavation in the right-of-way, with the excavation
having a length less than the width of the pavement or adjacent pavement.
Subd.23. "Local Representative" means a local person or persons, or designee of
such person or persons, authorized by a registrant to accept service and to make decisions for
that registrant regarding all matters within the scope of this Section.
Subd.24. "Management Costs" means the actual costs the city incurs in managing
its rights-of-Way, including such costs, if incurred, as those associated with registering I
applicants; issuing, processing, and verifying right-of-way permit applications; inspecting job
sites and restoration projects; maintaining, supporting, protecting, or moving user facilities
during right-of-way work; determining the adequacy of right-of-way restoration; restoring work
inadequately performed after providing notice and the opportunity to correct the work; and
revoking right-of-way permits. Management costs do not include payment by a
telecommunications right-of-way User for the use of the right-of-way, the fees and cost of
litigation relating to the interpretation of Minnesota Session Laws 1997, chapter 123; Minnesota
Statutes, sections 237.162 or 237.163 or any ordinance enacted under those sections, or the city
fees and costs related to appeals taken pursuant to Section 802.61.
Subd.25. "Obstruct" means 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.
Subd. 26. "Obstruction Permit" means the permit which, pursuant to this Section,
must be obtained before a person may obstruct a right-of-way, allowing the holder to hinder free
and open passage over the specified portion of that right-of-way, for the duration specified
therein, including a blanket permit for a period of time and for types of work specified by the
Director, if deemed appropriate in his discretion.
Subd.27. "Obstruction Permit Fee" means money paid to the city by a permittee to
cover the costs as provided in Section 802.23.
I
Subd. 28. "Patch or Patching" means a method of pavement replacement that is
temporary in nature. A patch consists of (1) the compaction of the subbase and aggregate base,
and (2) the replacement, in kind, of the existing pavement for a minimum of two feet beyond the
edges of the excavation in all directions. A patch is considered full restoration only when the
pavement is included in the city's five year project plan.
Subd. 29. "Pavement" means any type of improved surface that is within the public
right-of-way and that is paved or otherwise constructed with paver blocks, bituminous, concrete,
aggregate, or gravel.
Subd.30. "Permit" has the meamng given "right-of-way permit" 111 Minnesota
Statutes, section 237.162.
Subd.31. "Permittee" means any person to whom a permit to excavate or obstruct a
right-of-way has been granted by the city under this Section.
Subd.32. "Person" means 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.
Subd.33. "Public right-of-way" has the meaning given it 111 Minnesota Statutes,
section 237.162, subdivision 3.
I
I
I
I
Subd. 34. "Registrant" means 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
Subd.35. "Restore or Restoration" means 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.
Subd. 36. "Right-of- Way Permit" means either the excavation permit or the
obstruction permit, or both, depending on the context, required by this Section.
Subd.37. "Right-of- Way User" means (1) a telecommunications right-of-way user
as defined by Minnesota Statutes, section 237.162, subdivision 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.
Subd.38. "Service or Utility Service" means and includes (1) services provided by a
public utility as defined in Minnesota Statutes 216B.02, subdivisions 4 and 6; (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 Minnesota Statutes, chapter. 238.02,
subdivision 3; (4) natural gas or electric energy or telecommunications services provided by a
local government unit; (5) services provided by a cooperative electric association organized
under Minnesota Statutes, chapter 308A; and (6) water, sewer, steam, cooling or heating
serVIces.
Subd. 39. "Supplementary Application" means 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.
Subd.40. "Temporary Surface" means the compaction of subbase and aggregate
base and replacement, in kind, of the existing pavement only to the edges of the excavation. It is
temporary in nature except when the replacement is of pavement included in the city's two-year
plan, in which case it is considered full restoration.
Subd.41. "Trench" means an excavation in the right-of-way, with the excavation
having a length equal to or greater than the width of the pavement or adjacent pavement.
Subd. 42. "Telecommunication right-of-way User" means a person owning or
controlling a facility in the right-of-way, or seeking to own or control a Facility in the right-of-
way, that is used or is intended to be used for transporting telecommunication or other voice or
data information. For purposes of this Section, a cable communication system defined and
regulated under Minn. Stat. Chap. 238, and telecommunication activities related to providing
natural gas or electric energy services whether provided by a public utility as defined in
Minnesota Statutes, section. 216B.02, a municipality, a municipal gas or power agency
organized under Minnesota Statutes, chapters. 453 and 453A, or a cooperative electric
association organized under Minnesota Statutes, chapter 308A, are not telecommunications right-
of-way users for purposes of this Section.
Subd. 43. "Two Year Project Plan" shows projects adopted by the city for
construction within the next two years.
I
802.07
Administration.
The Director is the principal city official responsible for the administration of the rights-of-way,
right-of-way permits, and the ordinances related thereto. The Director may delegate any or all of
the duties hereunder.
802.09
Utility Coordination Committee.
The city may create an advisory utility coordination committee. Participation on the committee
is voluntary. It will be composed of any registrants that wish to assist the city in obtaining
information and by making recommendations regarding use of the right-of-way, and to improve
the process of performing construction work therein. The city may determine the size of such
committee and shall appoint members from a list of registrants that have expressed a desire to
assist the city.
802.11
Re2:istration and Ri2:ht-of-Wav Occupancy.
Subd. 1. Registration. Each person who occupies, uses, or seeks to occupy or use, I
the right-of-way or place any equipment or facilities in or on the right-of-way, including persons
with installation and maintenance responsibilities by lease, sublease or assignment, must register
with the city. Registration will consist of providing application information and paying a
registration fee.
Subd.2. 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.
Subd.3. Exceptions. Nothing in this Section shall be construed to repeal or amend
the provisions of a city ordinance establishing the rights of and limitations placed on persons to
plant or maintain boulevard plantings or gardens in the area of the right-of-way between their
property and the street curb. Persons 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 under this Section
for the following:
A. Planting or maintaining boulevard plantings or gardens (City Code
811.07);
B. Other surface landscaping works (City Code 811.07);
I
I
I
I
C.
Construction and maintenance of driveways, sidewalks, curb and gutter, or
parking lots, except repairs or restoration necessitated by utility cuts or
other work (City Code 800.11);
Construction or maintenance of street furnishings, bus stop benches,
shelters, or posts and pillars (City Code 805.07);
E. Snow removal activities (City Code 930.17);
D.
F. Construction and maintenance of irrigation systems provided that the
system does not connect directly to water mains in the right-of-way (City
Code 811.07).
Subd. 4. Gopher One Call Nothing herein relieves a person from complying with
the provisions of the Minnesota Statutes, chapter 216D, Gopher One Call Law.
802.13
Registration Information.
Subd. 1 Information Required. The information provided to the city at the time
of registration shall include, but not be limited to:
A.
Each registrant's name, Gopher One-Call facility owner code number or
other One-Call identifier, address and e-mail address, and telephone and
facsimile numbers.
B.
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 accessible for consultation at all times. Current
information regarding how to contact the local representative 111 an
emergency shall be provided at the time of registration.
C. A certificate of insurance or self-insurance:
1. Verifying that an insurance policy has been issued to the registrant
by an insurance company authorized to do business in the State of
Minnesota, or a form of self insurance acceptable to the city;
2.
Verifying that the registrant is insured against claims for personal
injury, including death, as well as claims for property damage
arising out of the (i) use and occupancy of the right-of-way by the
registrant, its officers, agents, employees and permittees, and (ii)
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;
802.15
3.
Either 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 such coverages or
otherwise providing evidence satisfactory to the Director that the
city is fully covered and will be defended through registrant's
insurance for all actions included in Minnesota Rule part
7819.1250;
4. Requiring that the city be notified thirty (30) days in advance of
cancellation of the policy or material modification of a coverage
term;
5. Indicating comprehensive liability coverage, automobile liability
coverage, workers compensation and umbrella coverage
established by the city in amounts sufficient to protect the city and
the public and to carry out the purposes and policies of this
Section.
4. The city may require a copy of the actual insurance policies if necessary to
ensure the Director that the policy provides adequate third party claim
coverage and city indemnity and defense coverage for all actions included
in the indemnity required by Minnesota Rule part 7819.1250.
5.
Such evidence as the Director may require that the person is authorized to
do business in Minnesota.
Subd. 2. 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 fifteen (15) days following the date on which the registrant has knowledge
of any change.
Reportin20bli2ations.
Subd. 1. 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. Such plan shall be submitted using a format
designated by the city and shall contain the information determined by the city to
be necessary to facilitate the coordination and reduction in the frequency of
excavations and obstructions of rights-of-way. If by December I the registrant
has not developed its construction and maintenance information for the coming
year, the registrant shall file such information with the city thereafter as soon as it
is developed.
The plan shall include, but not be limited to, the following information:
I
I
I
I
I
I
I
802.17
A.
The locations and the estimated beginning and ending dates of all projects
to be commenced during the next calendar year (in this section, 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 (in this section, a "five-year project").
The term "project" in this section shall include both next-year projects and five-
year projects.
By January 1 of each year and subject to the Minnesota Data Practices Act the
city will have available for inspection in the city's office a composite list of all
projects of which the city has been informed of the annual plans. All registrants
are responsible for keeping themselves informed of the current status of this list.
Thereafter, by March 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 such changes
in said list. Notwithstanding the foregoing, a registrant may at any time join in a
Next-year project of another registrant listed by the other registrant.
Subd.2. 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.
Permit Requirement.
Subd. 1. 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 right-of-way permit from the city to do so.
A.
Excavation Permit. An excavation permit is required by a registrant to
excavate that part of the right-of-way described in such permit and to
hinder free and open passage over the specified portion of the right-of-way
by placing facilities described therein, to the extent and for the duration
specified therein.
Obstruction Permit. An obstruction permit is required by a registrant to
hinder free and open passage over the specified portion of the right-of-way
by placing equipment described therein on the right-of-way, to the extent
and for the duration specified therein. An obstruction permit is not
required if a person already possesses a valid excavation permit for the
same project.
Permits for installation, repair or otherwise work on above-ground
facilities within the meaning of Minn. Stat. S 237.163, subd. 6(b)(4) will
be obstruction permits, notwithstanding the need for excavation, provided
B.
c.
the excavation is augered or hand dug for the purpose of placing a pole
type structure.
I
Subd. 2. Permit Extensions. No person may excavate or obstruct the right-of-way
beyond the date or dates specified in the permit unless (i) such person makes a
supplementary application for another right-of-way permit before the expiration
of the initial permit, and (ii) a new permit or permit extension is granted.
Subd.3. Delay Penalty. In accordance with Minnesota Rule 7819.1000 subp. 3,
the city shall establish and impose a delay penalty for unreasonable delays in
right-of-way excavation, obstruction, patching, or restoration. The delay penalty
shall be established from time to time by city council resolution. A delay penalty
will not be imposed for delays due to force majeure, including inclement weather,
civil strife, acts of God, or other circumstances beyond the control of the
applicant.
Subd.4. Permit Display. Permits issued under this Section shall be conspicuously
displayed or otherwise available at all times at the indicated work site and shall be
available for inspection by the city.
Subd. 5. Routine Obstruction and Excavation. The Director may approve a
permit plan which, among other conditions, allows for routine excavations and
obstructions without separate notice and separate compensation for such projects. I
Projects that do not involve excavation of paved surface and that last less than
eight hours in duration may be included in such a plan.
802.19
Permit Applications.
Subd. 1. Content of Permit Application for a permit is made to the city. Right-
of-way permit applications shall contain, and will be considered complete only upon compliance
with the requirements of the following provisions:
A. Registration with the city pursuant to this Section;
B. Submission 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 known existing and proposed
facilities owned or operated by the applicant.
C. Payment of money due the city for:
1. permit fees, estimated restoration costs and other management
costs;
2.
prior obstructions or excavations;
I
I
I
I
802.21
802.23
3.
any undisputed loss, damage, or expense suffered by the city
because of applicant's prior excavations or obstructions of the
rights-of-way or any emergency actions taken by the city;
D. Payment of disputed amounts due the city by posting security or
depositing in an escrow account an amount equal to at least 100% of the
amount owing.
Posting an additional or larger construction performance bond for
additional facilities when applicant requests an excavation permit to install
additional facilities and the city deems the existing construction
performance bond inadequate under applicable standards.
Issuance of Permit: Conditions.
Subd. 1. Permit Issuance. If the Applicant has satisfied the requirements of this
Section, the city shall issue a permit within five (5) business days of receiving a
completed application.
Subd. 2. Conditions. The city may impose reasonable conditions upon the
issuance of the permit and the performance of the applicant thereunder to protect
the health, safety and welfare or when necessary to protect the right-of-way and
its current use.
Subd. 3. Screening. The Permittee shall screen all above-ground facilities as
required by the Director. Screening methods shall include the use of shrubs, trees
and/or landscape rock or installation using stelt or camouflaged forms of the
facility.
Permit Fees.
Subd. 1. Fee Schedule and Fee Allocation. The city's permit fee schedule shall
be available to the public and established in advance where reasonably possible.
The permit fees shall be designed to recover the city's actual costs incurred in
managing the right-of-way and shall be based on an allocation among all users of
the right-of-way, including the city.
Subd. 2. Excavation Permit Fee. The city shall establish an Excavation permit fee
in an amount sufficient to recover the following costs:
A. City management costs.
B. degradation costs, if applicable.
Subd. 3. Obstruction Permit Fee. The city shall establish the obstruction permit
fee and shall be in an amount sufficient to recover the city management costs.
802.25
Subd. 4. Payment of Permit Fees. No excavation permit or obstruction permit
shall be issued without payment of excavation or obstruction permit fees. The I
city may allow Applicant to pay such fees within thirty (30) days of billing, or on
some other payment plan agreed to by the Director at his discretion.
Subd. 5. Non Refundable. Permit fees that were paid for a permit that the city has
revoked for a breach as stated in Subdivision 22 are not refundable.
Subd. 6. 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.
Ri!!ht-of-Wav Patchin!! and Restoration.
Subd. 1. 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 Subdivision 16.
Subd. 2. Patch and Restoration. Permittee must patch its own work. The city
may choose either to have the permittee restore the surface and subgrading
portions of right-of-way or to restore the surface portion of right-of-way itself.
A. City Restoration. If the city restores the surface portion of right-of-way,
permittee shall pay the costs thereof within thirty (30) days of billing. If,
following such Restoration, the pavement settles due to permittee's
improper work, the permittee shall pay to the city, within thirty (30) days
of billing, all costs associated with correcting the defective work.
B. 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
Minnesota Rule 7819.3000.
C. Degradation fee in Lieu of Restoration. In lieu of right-of-way
restoration, a right-of-way user may elect to pay a degradation fee.
However, the right-of-way user shall remain responsible for replacing and
compacting the subgrade and aggregate based material in the excavation
and the degradation fee shall not include the cost to accomplish these
responsibilities.
Subd.3. Standards. The permittee shall perform patching and restoration
according to the standards and with the materials specified by the city and shall
comply with Minnesota Rule 7819.1100.
I
I
I
I
I
802.27
802.29
Subd. 4. Duty to Correct Defects. The permittee shall correct defects in patching,
or restoration performed by permittee or its agents. Upon notification from the
city, permittee shall correct all restoration work to the extent necessary, using the
method required by the city. Unless otherwise agreed to by the Director, said
work shall be completed within fourteen (14) calendar days of receipt of the
notice from the city, not including days during which work cannot be done
because of circumstances constituting force majeure or days when work is
prohibited as un seasonal or unreasonable under Subdivision 16.
Subd.5. Failure to Restore. If the permittee fails to restore the right-of-way in the
manner and to the condition required by the city, or fails to satisfactorily and
timely complete all restoration required by the city, the city shall notify the
permittee in writing of the specific alleged failure or failures and shall allow the
permittee ten (10) days from receipt of said written notice to cure said failure or
failures, unless otherwise extended by the Director. In the event the permittee
fails to cure, the city may at its option perform the necessary work and permittee
shall pay to the city, within thirty (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.
Joint Applications.
Subd. 1. Joint application. Registrants may jointly apply for permits to excavate
or obstruct the right-of-way at the same place and time.
Subd. 2. 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.
Subd. 3. 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 excavation or
obstruction and degradation portions of the permit fee, but a permit would still be
required.
Supplementary Applications.
Subd. 1. 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 (i) make
application for a permit extension and pay any additional fees required thereby,
and (ii) be granted a new permit or permit extension.
~
Subd. 2. 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 I
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.
802.31
Other Obli1!ations.
Subd. 1. Compliance With Other Laws. Obtaining a right-of-way permit does
not relieve permittee of its duty to obtain all other necessary permits, licenses, and
authority and to pay all fees required by the city or other applicable rule, law or
regulation. A permittee shall comply with all requirements of local, state and
federal laws, including Minn. Stat. 216D.0 1-.09 (Gopher One Call Excavation
Notice System). 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.
Subd.2. Prohibited Work. Except in an emergency, or with the approval of the
city, no right-of-way obstruction or excavation may be done when seasonally
prohibited or when conditions are unreasonable for such work.
Subd.3. Interference with Right-of-Way. A permittee shall not so obstruct a
right-of-way that the natural free and clear passage of water through the gutters or
other waterways shall be interfered with, unless otherwise approved by the
Director. Private vehicles of those doing work in the right-of-way may not be
parked within or next to a permit area, unless parked in conformance with city
parking regulations. The loading or unloading of trucks must be done solely
within the defined permit area unless specifically authorized by the permit.
I
Subd. 4. Traffic Control. A permittee shall implement traffic control measures in
the area of the work and shall use traffic control procedures in accordance with
the most recent manuals on uniform traffic control, traffic control devices and
traffic zone layouts published by the State of Minnesota.
802.33
Denial of Permit.
The city may deny a permit for failure to meet the requirements and conditions of this Section 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.
802.35
Installation ReQuirements.
I
I
I
I
The excavation, backfilling, patching and restoration, and all other work performed in the right-
of-way shall be done in conformance with Minnesota Rules 7819.1100, 78.19.5000 and
7819.5100 and other applicable local requirements, in so far as they are not inconsistent with the
Minnesota Statutes sections 237.162 and 237.163.
802.37
802.39
Inspection.
Subd. 1. Site Inspection. Permittee shall make the work-site available to the city
and to all others as authorized by law for inspection at all reasonable times during
the execution of and upon completion of the work.
Subd. 2.
Authority of Director.
A.
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.
B.
The Director may issue an order to the permittee to correct any work that
does not conform to the terms of the permit or other applicable standards,
conditions, or code. If the work failure is a "substantial breach" within the
meaning of Minn. Stat. S 237.163 subd. 4( c), the order shall state that
failure to correct the violation will be cause for revocation of the permit
after a specified period determined by the Director. The permittee shall
present proof to the Director that the violation has been corrected within
the time period set forth by the Director in the order. Such proof shall be
provided no later than the next business day following the day of
completion. If such proof has not been presented within the required time,
the Director may revoke the permit pursuant to Section 802.43.
Work Done Without a Permit.
Subd. 1. Emergency Situations. Each registrant shall immediately notify the
Director of any event regarding its facilities that the registrant considers to be an
emergency. The registrant may proceed to take whatever actions are necessary to
respond to the emergency. Within two (2) business days after the occurrence of
the emergency, unless the Director allows a longer time, 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 Section for the
actions it took in response to the Emergency. If the Director concludes that a
registrant is required to perform work at the facility solely because of an
emergency created by another registrant and the work is performed in the
immediate area of the emergency work, the Director may waive the permit
otherwise required by the registrant(s) called to the emergency created by another
party.
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 I
potentially affected, by the emergency. In any event, the city may take whatever
action it deems necessary to respond to the emergency, the cost of which shall be
borne by the registrant whose facilities occasioned the emergency.
Subd.2. 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, pay an unauthorized work permit fee
in an amount established from time to time by the city council, 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 Section.
802.41
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.
802.43
Revocation of Permits.
Subd. 1. Substantial Breach. The city reserves its right to revoke any right-of-
way permit, without a fee refund, if there is a substantial breach of the terms and
conditions of any statute, ordinance, rule or regulation, or any material condition
of the permit. A substantial breach by permittee shall include, but shall not be
limited to, the following:
A. The violation of any material provision of the right-of-way permit;
B. 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;
c. Any material misrepresentation of fact in the application for a right-of-
way permit;
D. The failure to complete the work in a timely manner; unless a permit
extension is obtained or unless the failure to complete work is due to
reasons beyond the permittee's control; or
E. The failure to correct, in a timely manner, work that does not conform to a
condition indicated on an order issued pursuant to section 19B-19.
Subd.2. 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
I
I
I
I
I
I
I
802.45
demand upon the permittee to remedy such violation. The demand shall state that
continued violations may be cause for revocation of the permit. A substantial
breach, as stated above, will allow the city to place additional or revised
conditions on the permit to mitigate and remedy the breach.
Subd. 3. Response to Notice of Breach. Within a time established by the Director
following permittee's receipt of notification of the breach, permittee shall provide
the city with a plan to cure the breach, acceptable to the city. Permittee's failure
to submit a timely and acceptable plan, or permittee's failure to timely implement
the approved plan, shall be cause for immediate revocation of the permit.
Subd.4. 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 such revocation.
Man nine Data.
Subd. 1. Rule. Each registrant and permittee shall provide mapping information in
a form requrred by the city in accordance with Minnesota Rules 7819.4000 and
7819.4100.
802.47 Undereroundine.
Subd.1. Purpose. The purpose of this Section 802.47 is to promote the health,
safety and general welfare of the public and is intended to foster (i) safe travel
over the right-of-way, (ii) non-travel related safety around homes and buildings
where overhead feeds are connected and (iii) orderly development in the city.
Location and relocation, installation and reinstallation of Facilities in the right-of-
way or in or on other public ground must be made in accordance with this
Subdivision. This Subdivision is intended to be enforced consistently with state
and federal law regulating right-of-way users, specifically including but not
limited to Minnesota Statutes, Sections 161.45,237.162,237.163,300.03,222.37,
238.084 and 216B.36 and the Telecommunications Act of 1996, Title 47, U.S.C.
section 253.
Subd.2. Undergrounding of Facilities. Facilities newly installed, constructed or
otherwise placed in the public right-of-way or in other public property held in
common for public use must be located and maintained underground pursuant to
the terms and conditions of this section and in accordance with applicable
construction standards, subject to the exceptions below. Above-ground
installation, construction, modification, or replacement of meters, gauges,
transformers, street lighting, pad mount switches, capacitor banks, re-closers and
service connection pedestals shall be allowed. The requirements of this
Subdivision shall apply equally outside of the corporate limits of the city
coincident with city jurisdiction of platting, subdivision regulation or
comprehensive planning as may now or in the future be allowed by law.
Subd.3. Undergrounding of Permanent Replacement, Relocated or
Reconstructed Facilities. If the city finds that one or more of the purposes set
forth in Section 802.47, Subd. 1. would be promoted, the city may require a
permanent replacement, relocation or reconstruction of a Facility of more than
300 feet to be located, and maintained underground, with due regard for seasonal
working conditions. For purposes of this section, reconstruction means any
substantial repair of or any improvement to existing Facilities. Undergrounding
may be required whether a replacement, relocation or reconstruction is initiated
by the right-of-way user owning or operating the Facilities, or by the city in
connection with (1) the present or future use by the city or other local government
unit of the right-of-way or other public ground for a public project, (2) the public
health or safety, or (3) the safety and convenience of travel over the right-of-way.
Subd. 4. Exceptions to Undergrounding. The following exceptions to the strict
application of this Subdivision shall be allowed upon the conditions stated:
A.
Transmission Lines. Above-ground installation, construction, or
placement of those Facilities commonly referred to as "high voltage
transmission lines" shall be allowed unless the council requires
undergrounding of the Facilities after providing the right-of-way user
notice and an opportunity to be heard. This provision shall not be
construed as waiving the requirements of any other ordinance or
regulation of the city as the same may apply to any such proposed project.
B. Technical/Economic Feasibility; Promotion of Policy. Above-ground
installation, construction, or placement of Facilities shall be allowed in
residential, commercial and industrial areas where the council, following
consideration and recommendation by the planning commission, finds
that:
1. Underground placement would place an undue financial burden
upon the landowner, ratepayers, or right-of-way user or would
deprive the landowner of the preservation and enjoyment of
substantial property rights; or,
2. Underground placement is impractical or not technically feasible
due to topographical, subsoil or other existing conditions which
adversely affect underground Facilities placement.
3.
Failure to promote the purposes of undergrounding. The right-of-
way user clearly and convincingly demonstrates that none of the
purposes under Section 802.47, Subd. 1 would be advanced by
underground placement of Facilities on the project in question, or
I
I:
I
I
the city d,etermines on its own review that undergrounding is not
warranted' 'based on the circumstances of the proposed
undergrounding.
C. Temporary Service. Above-ground installation, construction, or
placement of temporary service lines shall only be allowed:
1. During new construction of any project for a period not to exceed
twenty-four (24) months;
2. During an emergency in order to safeguard lives or property within
the city;
3. For a period of not more than seven (7) months when soil
conditions make excavation impractical.
I
Subd. 5. Retirement of Overhead Facilities. The city council may determine
whether it is in the public interest that all Facilities within the city, or Facilities
within certain districts designated by the city, be permanently placed and
maintained underground by a date certain or target date, independently of
undergrounding required pursuant to Section 802.47, Subd. 2. of this Code (new
Facilities) and subdivision 802.47, Subd. 3. (Replacement Facilities). The
decision to underground must be preceded by a public hearing, after published
notice and written notice to the utilities affected. (Two weeks published: 30 days
written.) At the hearing the council must consider items (1) - (4) in Section
802.47, Subd. 5.B. of this Section and make findings. Undergrounding may not
take place until city council has, after hearing and notice, adopted a plan
containing items (1) - (6) of Section 802.47, Subd. S.C. of this Section.
A. Public Hearings. A hearing must be open to the public and may be continued
from time to time. At each hearing any person interested must be given an
opportunity to be heard. The subject of the public hearings shall be the issue of
whether Facilities in the right-of-way in the city, or located within a certain
district, shall all be located underground by a date certain. Hearings are not
necessary for the undergrounding required under Subdivisions 24.8. and D. of
this Section.
B. Public Hearing Issues. The issues to be addressed at the public hearings include
but are not limited to:
1. The costs and benefits to the public of requiring the undergrounding of all
Facilities in the right-of-way.
I
2.
The feasibility and cost of undergrounding all Facilities by a date certain
as determined by the city and the affected utilities.
3.
The tariff requirements, procedure and rate design for recovery or
intended recovery of incremental costs for undergrounding by the utilities
from ratepayers within the city.
4. Alternative financing options available if the city deems it in the public
interest to require undergrounding by a date certain and deems it
appropriate to participate in the cost otherwise borne by the ratepayers.
Upon completion of the hearing or hearings, the city council must make written
findings on whether it is in the public interest to establish a plan under which all
Facilities will be underground, either citywide or within districts designated by
the city.
c. Undergrounding Plan. If the council finds that it is in the public interest to
underground all or substantially all Facilities in the public right of way or in non-
right-of-way public ground, the council must establish a plan for such
undergrounding. The plan for undergrounding must include at least the following
elements:
1. Timetable for the undergrounding.
2.
Designation of districts for the undergrounding unless the undergrounding
plan is citywide.
3.
Exceptions to the undergrounding requirement and procedure for
establishing such exceptions.
4. Procedures for the undergrounding process, including but not limited to
coordination with city projects and provisions to ensure compliance with
non-discrimination requirements under the law.
5. A financing plan for funding of the incremental costs if the city determines
that it will finance some of the undergrounding costs, and a determination
and verification of the claimed additional costs to underground incurred by
the utility.
6. Penalties or other remedies for failure to comply with the undergrounding.
Subd. 6.
Developer Responsibility. All owners, platters, or developers are
responsible for complying with the requirements of this Subdivision, and
prior to final approval of any plat or development plan, shall submit to the
Director written instruments from the appropriate right-of-way users
showing that all necessary arrangements with said users for installation of
such Facilities have been made.
I
I
I
I
I
I
I
802.49 Location and Relocation of Facilities.
Subd. 1. Rule. Placement, location, and relocation of facilities must comply with
the Act, with other applicable law, and with Minnesota Rules 7819.3100.
7819.5000 and 7819.5100, to the extent the rules do not limit authority otherwise
available to cities.
A. Relocation Notification Procedure: The Director shall notify the utility
owner at least three months in advance of the need to relocate existing
facilities so the owner can determine if relocation or replacement is
required and plan any required work. The Director shall provide a second
notification to the owner one month before the owner needs to begin the
relocation. The utility owner shall begin relocation of the facilities within
one month of the second notification. To the extent technically feasible,
all utilities shall be relocated within one month or in a time frame
determined by the Director. The Director may allow a different schedule
if it does not interfere with the city's project. The utility owner shall
diligently work to relocate the facilities within the above schedule.
B.
Delay to City Project: The Director shall notify the utility owner if the
owner's progress will not meet the relocation schedule. If the owner fails
to meet the relocation schedule due to circumstances within its control, the
city may charge the utility owner for all costs incurred and requested by a
contractor working for the city who is delayed because the relocation is
not completed in the scheduled timeframe and for all costs incurred by the
city due to the delay.
C. Joint Trenching: All Facilities shall be placed in appropriate portions of
right-of-way so as to cause minimum conflict with other underground
Facilities. When technically appropriate and no safety hazards are created,
all utilities shall be installed, constructed or placed within the same trench.
Notwithstanding the foregoing, gas and electric lines shall be placed in
conformance with Minnesota Rules pt. 7819.5100, subd. 2, governing
safety standards.
Subd.2. Corridors. The city may assign a specific area within the right-of-way, or
any particular segment thereof as may be necessary, for each type of facilities that
are or, pursuant to current technology, the city expects will 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. A typical crossing section of the location for
utilities may be on file at the Director's office. This section is not intended to
establish "high density corridors".
Any Registrant who has facilities in the right-of-way in a position at variance with
the corridors established by the city may remain at that location until the city
requires Facilities relocation to the corridor pursuant to relocation authority
granted under Minnesota Rules part 7819.3100 or other applicable law.
Subd. 3. Limitation of Space. To protect the public health, safety, and welfare or
when necessary to protect the right-of-way and its current use, the city shall have
the power to prohibit or limit the placement of new or additional facilities within
the right-of-way. In making such decisions, the city shall strive to the extent
possible to accommodate all existing and potential users of the right-of-way, but
shall be guided primarily by considerations of the public interest, the public'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.
802.51
Pre-excavation Facilities Location.
I
In addition to complying with the requirements of Minn. Stat. 216D.0 1-.09 ("One Call
Excavation Notice System") before the start date of any right-of-way excavation, each registrant
who has facilities or equipment in the area to be excavated shall be responsible to mark the
horizontal placement of all said facilities, to the extent technically feasible. To the extent its
records contain such information, each registrant shall provide information regarding the
approximate vertical location of their facilities to excavators upon request. Nothing in this I
subsection is meant to limit the rights, duties and obligations of the facility owners or excavators
as set forth in Minnesota Statutes, Section 216D.0 1-.09.
802.53.
Interference Bv Other Facilities.
When the city does work in the right-of-way in its governmental right-of-way management
function and finds it necessary to maintain, support, or move a registrant's facilities to carry out
the work without damaging registrant's facilities, the city shall notify the local representative as
early as is reasonably possible. The city costs associated therewith will be billed to that
registrant and must be paid within thirty (30) days from the date of billing. Each registrant shall
be responsible for the cost of repairing any facilities in the right-of-way which it or its facilities
damages.
802.55
Right-of-Wav Vacation - Reservation of Right.
If the city vacates a right -of-way that contains the facilities of a registrant, the registrant's rights
in the vacated right-of-way are governed by Minnesota Rules 7819.3200.
I
I
I
I
802.57
Indemnification and Liability.
By registering with the city, or by accepting a permit under this Section, a registrant or permittee
agrees to defend and indemnify the city in accordance with the provisions of Minnesota Rule
7819.1250.
802.59
Abandoned Facilities.
Subd. 1. Discontinued Operations. A registrant who has decided to discontinue
all or a portion of its operations in the city must provide information satisfactory
to the city that the registrant's obligations for its facilities in the right-of-way
under this Section have been lawfully assumed by another registrant.
Subd. 2. Removal. Any registrant who has abandoned facilities in any right-of-
way shall remove them from that right-of-way pursuant to Minnesota Rule Part
7819.3300, unless the requirement is waived by the Director.
802.61
Appeal.
A right-of-way user that: (1) has been denied registration; (2) has been denied a permit; (3) has
had permit revoked; or (4) believes that the fees imposed are not in conformity with Minn. Stat.
9 237.163, Subd. 6 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 imposition will be in writing and supported by written findings establishing the
reasonableness of the decision.
802.63
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.
802.65
Severability.
If any section, subsection, sentence, clause, phrase, or portion of this Section is for any reason
held invalid or unconstitutional by any court or administrative agency of competent jurisdiction,
such portion shall be deemed a separate, distinct, and independent provision and such holding
shall not affect the validity of the remaining portions 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 Section or any portions of this Section is illegal or unenforceable,
then any such permit, right or registration granted or deemed to exist hereunder shall be
considered as a revocable permit with a mutual right in either party to terminate without cause
upon giving sixty (60) days written notice to the other. The requirements and conditions of such
a revocable permit shall be the same requirements and conditions as set forth in the permit, right
or registration, respectively, except for conditions relating to the term of the permit and the right
of termination. Nothing in this Section precludes the city from requiring a franchise agreement
with the applicant, as allowed by law, in addition to requirements set forth herein.
Section 2. This ordinance becomes effective from and after its passage and publication.
Passed by the City Council of the City of Richfield, Minnesota this 8th day of July, 2003.
Z2A:L J\ g~
Mayor of the Citylo.t.-t{ichfield
Attest:
\...---J\ /(lUV\~(/ j)j~~
City Clerk Q
I
II
I
I
~STATE OF MINNESOTA)
~IIII
newspapers
AFFIDAVIT OF PUBLICATION
ss.
COUNTY OF HENNEPIN)
Richard Hendrickson, being duly sworn on an oath states or affirms, that he is the Chief
Financial Officer of the newspaper known as Sun-Current , and has full
knowledge of the facts stated below:
(A) The newspaper has complied with all of the requirements constituting qualification as a
qualified newspaper, as provided by Minn. Stat. ~331A.02, ~331A.07, and other applicable
laws, as amended.
~,
(B) The printed public notice that is attached was published in the newspaper once each week,
for one successive weeks; it was first published on Thursday, the ----1L- day of
July , 2003, and was thereafter printed and published on every Thursday to and
including Thursday, the _ day of , 2003; and printed below is a copy of the
lower case alphabet from A to Z, both inclusive, which is hereby acknowledged as being the
Gize and kind of type used in the composition and publication-e
abcdefghijk!mnopqrstu~
BY:
CFO
Subscribed and sworn to or affirmed before me
this -'7- day of L,20~.
.
\
.
MERIDEL M. HEDBLOM I
NOTARY PUBLlC.MINNESOTA
MY COMMISSION EXPIRES 1-31.2005
.
RATE INFORMATION
(1) Lowest classified rate paid by commercial users
for comparable space
$
2.85 per line
(2) Maximum rate allowed by law
$
6.20 per line
c_.J
r_.
(3) Rate actually charged
$
1.40 oer line
City of Richfield
(Official Publicationlv
SUMMARY PUBLICATION
BILL NO. 2003-11
ANORDmANCEAMENDMENTTOC~R
VIII OF THE ORDmANCE CODE OF THE CITY
OF RICHFIELD.
This summary of the ordinance amendment is published
pursuant to SectIOn 3.12 of the Richfield City Charter.
The p~rpose of this ordinance amendment is to manage
the CIty of Richfield's right-of-way, which includes the
placement and mamtenance of facilities within the right-
way and the appropnate use of the right-of-way. The pro-
posed ordmance establishes reasonable regulations to
handle thes.e concerns and deals with such issues as: per-
mit exte~slOns; delays; non-performance; restoration'
emergenCIes; and, other conditions. '
I Copies of the ordinance are available for public inspection
m the Pubhc Works Department during normal business
ahoul's or up,on request by calling Engineering Supervisor
eorge Atkmson at 612-861-9191.
Adopted by the City Council of the City of Richfield Min-
nesota thIS 8th day of July. 2003. '
Martin J. Kirsch, Mayor
ATTEST:
Nancy Gibbs, City Clerk
(July 17, 2003 >D2IB ill 2003-11
\