Ordinance No. 1351 12-18-2017
SUMMARY ORDINANCE NO. 1351S
AN ORDINANCE TO REPEAL CHAPTER 407 AND ENACT A NEW CHAPTER OF THE
CODE OF ORDINANCES TO ADMINISTER AND REGULATE THE PUBLIC RIGHTS OF
WAY IN THE PUBLIC INTEREST AND TO PROVIDE FOR THE ISSUANCE AND
REGULATION FOF RIGHT OF WAY PERMITS AND TO AMEND CHAPTER 11 TO
REFLECT NEW FEES FOR SMALL WIRELESS FACILITIES IN THE
PUBLIC RIGHTS OF WAY
I.Title
An ordinance of the City of Fridley, Minnesota, amending the Fridley City Code Chapter 407.
Rights of Way Management.
II.Summary
The City Council of the City of Fridley does hereby ordain as follows:
New legislation was adopted by the Minnesota State Legislature that requires the City to permit
the installation of small wireless facilities within public rights of way. To conform, the City has
worked with the League of Minnesota Cities, the Suburban Rate Authority and City Attorney to
incorporate applicable language and minor updates to Fridley City Code Chapter 407 Rights of
Way Management.
III. Notice
This title and summary has been published to clearly inform the public of the intent and effect of
the Fridley City Code. A copy of the ordinance, in its entirety, is available for inspection by any
person during regular business hours at the offices of the City Clerk of the City of Fridley, 6431
University Ave N.E., Fridley, MN.
th
PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF FRIDLEY THIS 18
DAY OF DECEMBER 2017.
_____________________________________
SCOTT J. LUND, MAYOR
ATTEST:
____________________________
DEBRA A. SKOGEN, CITY CLERK
First Reading: December 11, 2017
Second Reading: December 18, 2017
Published: December 29, 2017
ORDINANCE NO. 1351
CITY OF FRIDLEY,
ANOKA COUNTY, MINNESOTA
AN ORDINANCE TO REPEAL CHAPTER 407 AND ENACT A NEW CHAPTER OF
THE CODE OF ORDINANCES TO ADMINISTER AND REGULATE THE PUBLIC
RIGHTS OF WAY IN THE PUBLIC INTEREST AND TO PROVIDE FOR THE
ISSUANCE AND REGULATION OF RIGHT OF WAY PERMITS AND TO AMEND
CHAPTER 11 TO REFLECT NEW FEES FOR SMALL WIRELESS FACILITIES IN
THE PUBLIC RIGHTS OF WAY
The Fridley City Council hereby finds after review, examination and recommendation of staff that
existing Chapter 407 related to Rights of Way Management be hereby repealed in its entirety and a new
Chapter 407 related to Rights of Way Management be enacted and ordains as follows:
SECTION I: That existing Chapter 407 RIGHTS-OF-WAY MANAGEMENT established by City
of Fridley Ordinance No. 945, 1116, and 1139 be repealed in its entirety.
SECTION II: That a new Chapter 407 RIGHTS-OF-WAY MANAGEMENT be enacted as
follows:
FRIDLEY CITY CODE
CHAPTER 407. RIGHTS-OF-WAY MANAGEMENT
407.01. FINDINGS AND PURPOSE
1.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 public rights-of-way, the City strives to
keep its public 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 public rights-of-way, a primary cause for the early and excessive deterioration of its
public rights-of-way is frequent excavation by persons whose equipment or facilities are
located therein.
Public 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
or facilities is located within the public right-of-way are the primary cause of these frequent
obstructions.
The City holds the public 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 public rights-of-way. It also recognizes that some persons,
by placing their equipment or facilities in the public 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 such services are often necessary or convenient for the citizens, such
persons receive revenue and/or profit through their use of public property.
Ordinance No. 1351 Page 2
As a result of all these intrusions in the public right-of-way, it is appropriate for the City to
establish a system of documenting what is placed in the public rights-of-way within its
municipal boundaries to inform its citizens and the other public entities of the equipment or
facilities that have been placed in the right-of-way that is held in trust for them.
2.In response to the foregoing facts, the City hereby enacts this Chapter of the City Code
relating to right-of-way permits and administration,. This Chapter imposes reasonable
regulations on the placement and maintenance of facilities and equipment currently within
the City’s public 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 Chapter, persons
disturbing and obstructing the public rights-of-way will bear the financial responsibility for
their work. Finally, this Chapter provides for recovery of out-of-pocket and projected costs
from persons using the public rights-of-way.
This Chapter shall be interpreted consistently with Minnesota Statutes, Sections 237.16,
237.162, 237.163, 237.79, 237.81 and 238.086 and the other laws governing applicable
rights of the City and users of the right-of-way. This Chapter shall also be interpreted
consistently with Minnesota Rules, Chapter 7819 where possible. 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 applicable statutory and case law is
intended.
3.In addition to the foregoing recovery of costs and regulation of use, the City Council
determines that there is an existing and legitimate state and local public policy, which
authorizes the City to require payments as reimbursement or return to the public for the use
value of the public rights-of-way from those who obtain revenue or profits from such use.
This reimbursement is provided for and defined in this ordinance as the “user fee.” This fee
does not apply to the repair, replacement or reconstruction of an existing facility.
Telecommunication facilities are exempt from a user fee by state statute.
A.Public Interest and Welfare.
The City Council finds that it is in the public interest to provide for the payment of a
user fee by all persons who use and occupy the right-of-way for operating their
businesses. This provides equity by requiring all users of the public right-of-way to pay
compensation apportioned equally among them all for the value and benefit of using
such public right-of-way. To ensure such fair treatment, this Chapter exempts franchise
holders which pay franchise fees to the City on the date of adoption of this Chapter from
the payment of a user fee.
B.Not a Rate.
The City Council finds and determines that the user fee authorized by this Chapter is not
and is not intended to be a rate as that term is defined in Minnesota Statutes, Section
216B.02, Subd. 5. Such user fee is not a fee for a service that is provided to the
customer of a person using the public right-of-way, but is rather a fee paid for the right
of that person to operate in the public right-of-way, and to maintain the equipment in the
public right-of-way in the City of Fridley.
Ordinance No. 1351 Page 3
4.Pursuant to the authority granted to the City under state and federal statutory, administrative
and common law, the City hereby elects to manage rights of way within its jurisdiction.
407.02. DEFINITIONS
The following definitions apply in this Chapter of this Code. References hereafter to “sections”
are, unless otherwise specified, references to sections in this Chapter. Defined terms remain
defined terms whether or not capitalized.
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.
2.“Applicant” means any Person requesting permission to excavate or obstruct a Right-of-Way.
3.“City” means the City of Fridley, Minnesota. For purposes of section 407.27, City means its
elected officials, officers, employees and agents.
4.“Collocate” or “Collocation” means 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.
5.“Commission” means the State of Minnesota Public Utilities Commission.
6.“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, Subd. 3, over a continuous length in excess of 500 feet.
7.“Construction Performance Bond” means any of the following forms of security provided at
permittees option:
A.Individual project bond
B.Cash deposit
C.Security of a form listed or approved under Minnesota Statutes, Section 15.73, Subd. 3
D.Letter of Credit, in a form acceptable to the City
E.Self-insurance, in a form acceptable to the City
F.A blanket bond for projects within the City, or other form of construction bond, for a
time specified and in a form acceptable to the City.
Ordinance No. 1351 Page 4
8.“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 did not occur.
9.“Degradation Cost” 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.
10.“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 Costs.
11.“Department” means the Department of Public Works of the City.
12. “Director” means the Director of the Department of Public Works of the City, or the
Director’s designee.
13.“Delay Penalty” is the penalty imposed as a result of unreasonable delays in right-of-way
excavation, obstruction, patching, or restoration as establish by permit.
14.“Emergency” means 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.
15.“Equipment” means any tangible asset used to install, repair, or maintain Facilities in any
Right-of-Way.
16.“Excavate or excavation” means to dig into or in any way remove or physically disturb or
penetrate any part of a right-of-way.
17.“Excavation Permit” means 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 such permit.
18.“Excavation Permit Fee” means money paid to the City by an Applicant to cover the costs
as provided in Chapter 11 of this Code.
19.“Facility or Facilities” means any tangible asset in the Right-of-Way required to provide
Utility Service.
20.“Five-year project plan” is a plan showing projects adopted by the City for construction
within the next five years.
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.
Ordinance No. 1351 Page 5
22.“Hole” means an excavation in the pavement, with the excavation having a length less than
the width of the pavement.
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 Chapter.
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 Applicants; issuing,
processing, and verifying Right-of-Way permit applications and 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 407.29 of
this Chapter.
25.“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 for a period in excess of 4 consecutive
daylight hours.
26.“Obstruction Permit” means the permit which, pursuant to this Chapter, must be obtained
before a Person may obstruct a Right-of-Way, allowing the holder to hinder free and open
passage over the specified portion of that Right-of-Way for a period over 4 daylight hours
by placing Equipment described therein on the Right-of-Way for the duration specified
therein.
27.“Obstruction Permit Fee” means money paid to the City by a Permittee to cover the costs as
provided in Chapter 11 of this Code.
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.
29.“Pavement” means any type of improved surface that is within the public right-of-way and
that is paved or otherwise constructed with asphalt, concrete, aggregate or gravel.
30.“Permit” Has the meaning given “right of way permit” in Minnesota Statutes, Section
237.162.
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 Chapter.
Ordinance No. 1351 Page 6
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.
33.“Probation” means the status of a Person that has not complied with the conditions of this
Chapter.
34.“Probationary Period” means one year from the date that a Person has been notified in
writing that they have been put on Probation.
35.“Repair” means the temporary construction work necessary to make the Right-of-Way
useable for travel.
36.“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 Equipment or Facilities in the Right-of-Way.
37.“Registration fee” means money paid to the City by a Registrant to cover the cost associated
with registration.
38.“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.
39.“Restoration Cost” means the amount of money paid to the City by a Permittee to achieve
the level of restoration according to plates 1 to 13 to Minnesota Rules, Chapter 7819.
40.“Right-of-Way or Public Right-of-Way” means the area on, below, or above a public
roadway, highway, street, cartway, bicycle lane and public sidewalk in which the City,
county or State has an interest, including other dedicated rights-of-way for travel purposes
and utility easements of the City, county or State. 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.
41.“Right-of-Way Permit” means the Excavation Permit, the Obstruction Permit, and/or the
Small Wireless Facility Permit, depending on the context, required by this Chapter.
42.“Right-of-way User” means (1) a telecommunications right-of-way user as defined by
Minnesota Statutes, Section 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.
43.“Service” or “Utility Service” includes but is not limited to (1) those services provided by a
public utility as defined in Minnesota Statutes, Section 216B.02, subds. 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 systems as defined in Minnesota
Statutes, Chapter 238; (4) natural gas or electric energy or telecommunications services
provided by the City; (5) services provided by a cooperative electric association organized
under Minnesota Statutes, Chapter 308A; and (6) water, sanitary sewer, and storm water,
including service laterals, steam, cooling, or heating services.
Ordinance No. 1351 Page 7
44.“Service Lateral” means an underground facility that is used to transmit, distribute or
furnish Utility Service from a common source to an end-use customer or premises.
45.“Small Wireless Facility” means a wireless facility that meets both of the following
qualifications:
A.Each antenna is located inside an enclosure of no more than six cubic feet in volume or
could fit within such an enclosure; and
B.All other wireless equipment associated with the small wireless facility provided such
equipment is, in aggregate, no more than 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.
46.“Supplementary Application” means an application made to permit impacts to more of the
Right-of-Way than permitted, or to extend the duration of a permit that had already been
issued.
47.“Telecommunication Rights-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 Chapter, a cable communication system defined and
regulated under Minnesota Statutes, Chapter 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 Chapter except to the extent
such entity is offering wireless service.
48.“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 project
plan, in which case it is considered full restoration.
49.“Toll” means to stop the running of relevant the time period, such as a review period.
50.“Trench” means an excavation in the pavement, with the excavation having a length equal to
or greater than the width of the pavement.
51.“Two-year project plan” shows projects adopted by the City for construction within the next
two years.
52.“Unusable or Unused Equipment and Facilities” means Equipment and Facilities in the
Right-of-Way which have remained unused for one year and/or for facilities that are not
registered or located by Gopher One Call or for which the Registrant is unable to provide
Ordinance No. 1351 Page 8
proof that it has either a plan to begin using it within the next twelve (12) months or a
potential purchaser or user of the Equipment or Facilities.
53.“User Fee” is the sum of money, payable to the City, by a person who is neither furnishing
utility services nor a telecommunications right of way user using or occupying the Right-of-
Way; provided, however, that the City may at its option provide, at any time by ordinance or
by amendment thereto, for a greater or different fee applicable to all such persons in an
amount and by a method of determination as may be further provided in such ordinance or
amendment thereto.
54.“Wireless Facility” means 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.
55.“Wireless Service” means 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.
56.“Wireless Support Structure” means 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.
407.03. ADMINISTRATION
1.Responsibility.
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.
2.Franchise Supremacy.
The City may, in addition to the requirements of this Chapter, require any person which has
or seeks to have equipment located in any Right-of-Way to obtain a franchise to 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.
All other terms of this Chapter shall be fully applicable to all Persons whether franchised or
not.
Ordinance No. 1351 Page 9
407.04. REGISTRATION AND RIGHT-OF-WAY OCCUPANCY
1.Registration.
Each person who occupies, uses, or seeks to occupy or use, the public Right-of-Way or
place any Equipment or Facilities in 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.
2.Registration Prior to Work.
No Person may construct, install, repair, remove, relocate, or perform any other work on, or
use any Equipment or Facility or any part thereof in any Right-of-Way without first being
registered with the City.
3.Exceptions.
A. Ground Cover Plantings and Gardens.
Nothing herein shall be construed to repeal or amend the provisions of a City ordinance
permitting Persons to plant or maintain boulevard ground cover plantings or gardens in
the area of the Right-of-Way between their property and the street curb. Persons
planting or maintaining boulevard ground cover plantings or gardens shall not be
deemed to use or occupy the Right-of-Way, and shall not be required to obtain any
permits for planting or maintaining such boulevard ground cover plantings or gardens
under this Chapter. Planting or maintenance of trees, shrubs, and installation or
maintenance of structural landscaping, signs, poles, fences, and any other visual or
physical obstructions are subject to the provisions of this Chapter at the discretion of the
Director.
B.City Utility Service Repair.
The Director may exempt some or all permit requirements and permit fees for
Excavations and Obstructions for repairs of City utility service laterals, including water,
sanitary sewer, and storm sewer if a utility permit is issued in conjunction with the work
and registration and mapping information is provided by the Person or contractor
associated with the repair consistent with this Chapter.
C.Gopher State One Call Law.
In addition, nothing herein relieves a Person from complying with the provisions of the
Minnesota Statutes, Chapter 216D, known informally as the “Gopher State One Call”
law.
407.05. REGISTRATION INFORMATION
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 registration certificate number, address and
email address if applicable, and telephone and facsimile numbers.
Ordinance No. 1351 Page 10
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
available at all times. Current information regarding how to contact the Local
Representative in an Emergency shall be provided at the time of registration.
C.A certificate of insurance or self-insurance acceptable by the City:
(1)Verify that an insurance policy has been issued to the Registrant by an insurance
company licensed 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 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;
(3)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;
(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
Chapter.
a.The City may require a copy of the actual insurance policies.
b.If the Person is a corporation, a copy of the certificate required to be filed under
Minnesota Statutes, Section 300.06 as recorded and certified to by the Secretary
of State.
c.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 such certificate from said
Commission or other state or federal agency.
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.
Ordinance No. 1351 Page 11
3.Grant of Right; Payment of User Fee.
Any person required to register under Section 407.04, which occupies, uses, or places its
equipment in the public right-of-way but who is not a telecommunications right of way user
or a right of way user as defined by this Chapter and Minnesota Statutes Chapter 237, is
hereby granted a right to do so if and only so long as it (1) timely pays the user fee as
provided herein, and (2) complies with all other requirements of law. This legal entitlement
shall not include use of the right-of-way for purposes in furtherance of furnishing utility
services for which additional authorization is required by this Code or other state or federal
law, unless the person pays the user fee for such non-utility service use.
The user fee reflects the value of the right-of-way needed for new facilities and is based on
the average market value of the land, adjusting for the cost of acquisition and non-exclusive
use. The dimensions of the occupied land shall incorporate the Gopher One Call criteria of
2-foot clearance on all sides. Such fee shall be paid to the City in substantially equal
(quarterly, semi-annual, annual) installments, subject to adjustment and correction at the
conclusion of the calendar year. Such fee shall be paid for all and any part of a calendar
year, prorated on a daily basis, during any time period in which the said person uses or
occupies the right-of-way to furnish utility serviced, or places, maintains or uses its wires,
mains, pipes, or any other facilities or equipment in the right-of-way.
This section does not apply to a person who uses and occupies the right-of-way for operating
their business when there is a pre-existing franchise agreement between that person and the
City and the payment of a franchise fees, nor does it apply to the repair, replacement or
reconstruction of an existing facility.
The grant of such right is expressly conditioned on, and is subject to, continuing compliance
with all provisions of law, including this Chapter.
407.06. REPORTING OBLIGATIONS
1.Operations.
Each Registrant proposing to work in the City shall, at the time of registration and by
December 1 of each year, file a construction and major maintenance plan for underground
Facilities with the City. Such plan shall be submitted using a format designated by the City
and shall contain the information determined by the City to be necessary to facilitate the
coordination and reduction in the frequency of Excavations and Obstructions of Rights-of-
Way.
The plan shall include, but not be limited to, the following information:
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.
Ordinance No. 1351 Page 12
By January 1 of each year the City will have available for inspection a composite list of all
Projects of which the City has been informed in the annual plans. All Registrants are
responsible for keeping themselves informed of the current status of this list.
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 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.
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.
3.Applicants obtaining Anoka County Highway or Minnesota Department of Transportation
right-of-way permits for facilities in their rights-of-way within the corporate limits of the
City must provide a copy to the City and submit a copy of the plans with mapping data for
recording purposes per Section 407.21.
407.07. PERMIT REQUIREMENT
1.Permit Required.
Except as otherwise provided in this Code, no Person may Obstruct or Excavate any Right-
of-Way without first having registered and
, or install or place facilities in the right of way
obtained the appropriate Right-of-Way Permit from the City to do so.
A.Excavation Permit.
An Excavation Permit is required 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 equipment or facilities described therein, to the extent and for the
duration specified therein.
Multiple excavations limited to 600 feet are considered one project and require an
Excavation Permit. Each permit application will require the mapping data per Section
407.21.
B.Obstruction Permit.
An Obstruction Permit is required to hinder free and open passage over a specified
portion of Right-of-Way for periods in excess of 4 consecutive daylight hours 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. Failure to obtain an Obstruction Permit prior to the
obstruction will require an after-the-fact obstruction permit plus payment of a delay
penalty.
Ordinance No. 1351 Page 13
C.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 or 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.
D.Permit Waiver.
In the event of a major catastrophe or emergency declared by the City requiring the
restoration of services that are within the right-of-way, the requirement for permits and
permit fees may be waived by the City at its discretion.
After restoration of the service has been completed, an updated mapping plan per
Section 407.21 must be submitted to the City within 60 days.
2.Permit Extensions.
No Person may Excavate or Obstruct the Right-of-Way beyond the date or dates specified in
the permit unless such Person (i) 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.
3.Delay Penalty.
Notwithstanding subd. 2 of this section, the City shall establish and impose a Delay Penalty
in accordance with Minnesota Rule, Part 7819.1000 subp. 3 for unreasonable delays 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 in completion
of permitted Right-of-Way activity. The Delay Penalty shall be established from time to
time by the City Council and shall include any delay or damages charged by the City’s
construction contractor and may include liquidated damages consistent with the contract.
4.Permit Display.
Permits issued under this Chapter shall be conspicuously displayed or otherwise available at
all times at the indicated work site and shall be available for inspection by the City.
407.08. PERMIT APPLICATIONS
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.
1.Registration with the City pursuant to this Chapter.
2.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.
Ordinance No. 1351 Page 14
3.Payment of money due the City for
A.permit fees, estimated Restoration Costs and other Management Costs;
B.prior permitted or unpermitted Right-of-Way activity;
C.any undisputed loss, damage, or expense suffered by the City because of Applicant’s
prior activity in the Rights-of-Way or any Emergency actions taken by the City;
D.franchise or user fees, if applicable.
4.Payment of disputed amounts due the City by posting security or depositing in an escrow
account an amount equal to at least 110% of the amount owing.
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.
407.09. ISSUANCE OF PERMIT; CONDITIONS
1.Permit Issuance.
If the Applicant has satisfied the requirements of this Chapter, the City shall issue a permit.
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.
3.Compliance with Laws.
In addition, a permittee shall comply with all requirements of local, state, and federal laws,
including but not limited to Minnesota Statutes, Section 216D.01 - .09 (Gopher One Call
Excavation Notice System) and Minnesota Rules, Chapter 7560.
4.Supplemental Provisions for Small Wireless Facility Permits
A.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;
Ordinance No. 1351 Page 15
(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.
B.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.
C.Consolidated Permit 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 a local government unit, 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.
D.Tolling for Action
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 the application. Upon submission of additional documents or
information, the City shall have ten days to notify the Applicant in writing of any
still-missing information.
(3)The City and a small wireless facility Applicant agree in writing to toll the
review period.
Ordinance No. 1351 Page 16
407.10 PERMIT FEES
1.Excavation Permit Fee.
The Excavation Permit Fee shall be established by the City in an amount sufficient to
recover the following costs:
A.City Management Costs;
B.Mapping Costs;
C.Degradation Costs, if applicable.
2.Obstruction Permit Fee.
The Obstruction Permit Fee shall be in an amount sufficient to recover the City
Management Costs associated with recording and inspecting the right-of-way obstruction.
3.Small Wireless Facility Permit Fee.
The City shall impose a small wireless facility permit fee in an amount sufficient to recover:
A.City Management Costs;
B.City engineering, make-ready, and construction costs associated with collocation of
small wireless facilities;
C.Mapping Costs;
D.Degradation Costs, if applicable.
4.Payment of Permit Fees.
A.No Right-of-Way Permit shall be issued without payment of associated Right-of-Way
Permit Fees, unless otherwise specified in this Chapter. The City may allow Applicant to
pay such fees within thirty (30) days of billing.
B.The mapping portion of the excavation fees is waived if the mapping data provided to the
City is in a GIS format compatible with the City’s standards.
5.Nonrefundable.
Permit fees that were paid for a permit that the City has revoked for a breach as stated in
Section 407.20 are not refundable.
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.
7.Waiver of Fees.
Payment of fees, as identified in this Chapter, with the exception of restoration costs, for
water and/or sanitary sewer connections to property in the City are waived. However
Registration and the Right-of-way Permit application must be submitted and approved by
the City prior to commencement of any work.
Ordinance No. 1351 Page 17
407.11. RIGHT-OF-WAY PATCHING AND RESTORATION
1.Timing.
The work to be done under the Excavation Permit, and the Patching 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 Section 407.14.
2.Patch and Restoration.
Permittee shall Patch its own work. The City may choose either to have the Permittee
restore the Right-of-Way or to restore the pavement itself.
A.City Restoration.
If the City restores the pavement, Permittee shall pay the costs thereof within thirty (30)
days of billing. If, during the twenty-four (24) months following such Restoration, the
pavement settles due to Permittee’s improper backfilling, the Permittee shall pay to the
City, within thirty (30) days of billing, all costs associated with having to correct the
defective work.
B.Permittee Restoration.
If the Permittee Restores the Right-of-Way itself, the City may require at the time of
application for an Excavation Permit the posting of a Construction Performance Bond in
an amount determined by the City to be sufficient to cover the cost of Restoration in
accordance with the provisions of Minnesota Rules, Part 7819.3000. If, within twenty-
four (24) months after completion of the Restoration of the Right-of-Way, the City
determines that the Right-of-Way has been properly restored, the surety on the
Construction Performance Bond shall be released.
3.Standards.
The Permittee shall perform Excavation Patching and/or Restoration according to the
standards and with the materials specified by the City and shall comply with Minnesota
Rules, 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.
Methods of restoration may include, but are not limited to, patching, replacement of the
right-of-way base, and milling and overlay of the entire area of the right-of-way affected by
the work.
The permittee shall correct defects in patching, or restoration performed by permittee or its
agents. Permittee upon notification from the City, shall correct all restoration work to the
extent necessary, using the method required by the City. Said work shall be completed
within five (5) calendar days of the 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 unseasonal or unreasonable under Section 407.14.
Ordinance No. 1351 Page 18
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 restorations required by the
City, the City as an option, may do such work. In that event, the permittee shall pay to the
City, within thirty (30) days of billing, the cost of restoring the right-of-way.
4.Guarantees.
By choosing to restore the Right-of-Way itself, the Permittee guarantees its work and shall
maintain it for twenty-four (24) months following its completion. During this 24-month
period it shall, upon notification from the City, correct all restoration work to the extent
necessary, using the method required by the City. Said work shall be completed within five
(5) calendar days of the 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 unseasonal or unreasonable under Section 407.14.
5.Obligation.
Construction triggers an obligation of the right-of-way user that the right-of-way restoration
be completed according to the conditions set forth in this Chapter. The right-of-way user
also assumes responsibility for “as built” drawings and for repairing facilities or structures,
including right-of-way that was damaged during facility installation. The obligation is
limited to one year for plantings and turf establishment.
6.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 such work. In that event the 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.
7.Degradation Cost in Lieu of Restoration.
In lieu of Right-of-Way Restoration, a Right-of-Way user may elect to pay a Degradation
Fee with the approval of the City. However, the Right-of-Way User shall remain
responsible for Patching and the Degradation Fee shall not include the cost to accomplish
these responsibilities.
407.12. JOINT APPLICATIONS
1.Joint Application.
Registrants may jointly apply for permits to Excavate or Obstruct the Right-of-Way at the
same place and time.
2.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.
Ordinance No. 1351 Page 19
A right-of-way permit application must be completed. In these circumstances, the
excavation fee will be waived.
Mapping data must be provided per Section 407.21.
3.Shared Fees.
Registrants who jointly apply for Right-of-Way Permits, which the City does not perform,
may share in the payment of the Right-of-Way Permit Fee. Registrants must agree among
themselves as to the portion each will pay and indicate the same on their applications.
407.13. SUPPLEMENTARY APPLICATIONS
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 obstruct or 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.
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 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 approved before the initial permit end date.
407.14. OTHER OBLIGATIONS
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 Minnesota Statutes, Section 216D.01-.09 (“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.
2.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 such work.
Ordinance No. 1351 Page 20
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. 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.
4.Trenchless Excavation.
As a condition of all applicable permits, permittees employing trenchless excavation
methods, including but not limited to Horizontal Directional Drilling, shall follow all
requirements set forth in Minnesota Statutes, Chapter 216D and Minnesota Rules, Chapter
7560 and shall require potholing or open cutting over existing underground utilities before
excavating, as determined by the Director.
407.15. DENIAL OF PERMIT
1.Reasons for Denial.
Except in an emergency, no right-of-way permit will be granted.
A.To any person required to be registered who has not done so;
B.To any person required to file an annual report but has failed to do so;
C.For any next-year project not listed in the construction and major maintenance plan
required under this Chapter;
D.For any project which requires the excavation of any portion of a right-of-way which was
constructed or reconstructed within the preceding five (5) years;
E.To any person who has failed within the past two (2) years to comply, or is presently not
in full compliance, with the requirements of this Chapter;
F.To any person who has outstanding debt owed to the City; and
G.To any person as to whom there are existing grounds for the revocation of a permit.
Notwithstanding the provisions of this Section, the City may issue a permit in any case
where the permit is necessary (a) to prevent substantial economic hardship to a customer of
the permit Applicant, or (b) to allow such customer to materially improve its utility service,
or (c) to allow a new economic development project, or (d) as otherwise required by law;
and where the permit Applicant did not have knowledge of the hardship, the plans for
improvement of service, or the development project when said Applicant was required to
submit its list of Next-year Projects.
The City may deny a permit to protect the public health, safety and welfare, to prevent
interference with the safety and convenience of ordinary travel over the right-of-way, would
cause a conflict or interfere with an exhibition, celebration, festival, or any other event, or
when necessary to protect the right-of-way, its use, and its users. The City may consider
one or more of the following factors:
Ordinance No. 1351 Page 21
(1)the extent to which right-of-way space where the permit is sought is available;
(2)the competing demands for the particular space in the right-of-way;
(3)the availability of other locations in the right-of-way or in other rights-of-way for the
equipment or facilities of the permit Applicant;
(4)the applicability of ordinance or other regulations of the right-of-way that affect
location of equipment or facilities in the right-of-way;
(5)the degree of compliance of the Applicant with the terms and conditions of its
franchise, this Chapter, and other applicable ordinances and regulations;
(6)the degree of disruption to surrounding neighborhoods and businesses that will result
from the use of that part of the right-of-way;
(7)the condition and age of the right-of-way, and whether and when it is scheduled for
total or partial reconstruction; and
(8)the balancing of the costs of disruption to the public and damage to the right-of-way,
against the benefits to that part of the public served by the expansion into additional
parts of the right-of-way.
2.Procedural Requirements.
The denial or revocation of a permit must be made in writing and must document the basis
for the denial. The City must notify the Applicant or right-of-way user in writing within
three business days of the decision to deny or revoke a permit. If an application is denied,
the right-of-way user may address the reasons for denial identified by the City and resubmit
its application. If the application is resubmitted within 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 submission.
407.16. INSTALLATION REQUIREMENTS
The excavation, backfilling, patching, repair, and restoration, and all other work performed in
the Right-of-Way shall be performed and completed in conformance with Minnesota Rules,
Parts 7819.1100 and 7819.5000, Engineering Standards adopted by the PUC, City, county, and
State, and any other applicable local requirements, in so far as they are not inconsistent with the
Minnesota Statutes, Sections 237.162 and 237.163.
407.17. INSPECTION
1.Notice of Completion.
When the work under any permit hereunder is completed, the permittee shall furnish a
Completion Certificate in accordance with Minnesota Rule, Part 7819.1300.
Ordinance No. 1351 Page 22
Unless waived by the City, a person designated by the right-of-way user as a responsible
employee shall sign a completion certificate showing the completion date for the work
performed, identifying the installer and designer of record, and certifying that work was
completed according to the requirements of the City.
If necessary due to approved changes for the work as projected when the permit was applied
for, the permittee shall submit “as built” drawings or maps within six months of completing
the work, showing any deviations from the plan that are greater than plus or minus two feet.
The City shall respond within 30 days of receipt of the completion certificate. Failure to
approve or disapprove the Permittee’s performance within 30 days is deemed to be approval
by the City.
2.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.
3.Authority of Director
A.At the time of inspection the City 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 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 (10) days after issuance of the order, the Permittee shall present proof to the
City that the violation has been corrected. If such proof has not been presented within
the required time, the City may revoke the permit pursuant to Section 407.20.
407.18. WORK DONE WITHOUT A PERMIT
1.Emergency Situations.
Each Registrant shall immediately notify the City 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.
If the City becomes aware of an emergency regarding a Registrant’s Equipment or
Facilities, the City will attempt to contact the Local Representative of each Registrant
affected, or potentially affected by the Emergency. In any event, the City may take
whatever action it deems necessary to respond to the Emergency, the cost of which shall be
borne by theRegistrant whose Facilities occasioned the Emergency.
Ordinance No. 1351 Page 23
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, and as a penalty
pay double the normal fee for said permit, pay double all the other fees required by the
Legislative 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.
407.19. SUPPLEMENTARY NOTIFICATION
If the activity in the Right-of-Way begins later or ends sooner than the date given on the Right-
of-Way Permit, Permittee shall notify the City of the accurate information as soon as this
information is known.
407.20. REVOCATION OF PERMITS
1.Substantial Breach.
The City reserves its right, as provided herein, to revoke any Right-of-Way Permit, without
a fee refund, in the event of a substantial breach of the terms and conditions of any statute,
ordinance, rule or regulation, or any material condition of the permit including a threat to
the safety of workers or the right-of-way user or the utility users. A substantial breach by
Permittee shall include, but shall not be limited to, the following:
The violation of any material provision of the Right-of-Way Permit;
A.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;
B.Any material misrepresentation of fact in the application for a Right-of-Way Permit;
C.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
D.Failure to relocate existing facilities as specified in Sec. 407.23; or
E.Failure of the utility to pay any required costs, fees, or charges billed by the City or
F.The failure to correct, in a timely manner, work that does not conform to a condition
indicated on an Order issued pursuant to this Chapter.
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 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.
Ordinance No. 1351 Page 24
3.Response to Notice of Breach.
Within twenty-four (24) hours of receiving notification of the breach, Permittee shall
provide the City with a plan, acceptable to the City that will cure the breach. Permittee’s
failure to so contact the City, or the Permittee’s failure to submit an acceptable plan, or
Permittee’s failure to reasonably implement the approved plan, shall be cause for immediate
revocation of the permit. Further, Permittee’s failure to so contact the City, or the
Permittee’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
(1) full year.
4.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.
5.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.
6.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.
407.21. MAPPING DATA
1.Information Required.
Each Registrant shall provide Mapping information required by the City in accordance
with Minnesota Rules, Parts 7819.4000 and 7819.4100. Failure to provide Mapping
and detailed drawings pursuant to this subsection shall be grounds for revoking the
permit holder’s registration. Mapping data shall include the following information:
A.location and approximate depth of Applicant’s mains, cables, conduits, switches, and
related equipment and facilities, with the location based on:
(1)offsets from property lines, distances from the centerline of the public right—of-
way, and curb lines as determined by the City; or
(2)coordinates derived from the coordinate system being used by the City; or
(3)any other system agreed upon by the right-of-way user and City;
B.the type and size of the utility;
C.a description showing above-ground appurtenances;
Ordinance No. 1351 Page 25
D.a legend explaining symbols, characters, abbreviations, scale, and other data shown on
the map; and
E.any facilities to be abandoned, if applicable, in conformance with Minnesota Statutes,
Section 216D.04, subd. 3.
The permittee shall submit “as built” drawings reflecting any subsequent changes and
variations from the information provided under 407.08, Subd. 2.
The right-of-way user is not required to provide or convey mapping information or data in a
format or manner that is different from that which it currently utilizes and maintains. The
right-of-way user shall, however, include the cost to covert the data furnished by the right-
of-way user to a format currently in use by the City as part of the permit application fee.
These data conversion costs, unlike other costs that make up permit fees, may be included in
the permit fee after the permit application process is completed and shall be immediately
due to the City upon the ascertainment of the cost and notice of the fee to the Applicant.
Any permit for which such fee has not been paid within 30 days of notice from the City may
upon written notice be revoked. The City shall not issue any other permits to the registrant
related to any City right-of-way until such fee is paid.
Mapping data shall be provided with the specificity requested by the City for inclusion in
the mapping system used by the City.
For mapping data provided to the City of Fridley in GIS format compatible with the City’s
standards, the mapping portion of the excavation fee is waived.
2.Submittal Requirement.
A.Within six (6) months after the acquisition, installation, or construction of additional
equipment or any relocation, abandonment, or disuse of existing equipment, each
registrant shall submit the Mapping Data required herein.
B.All existing right-of-way users shall submit detailed plans as may be reasonable and
practical for all facilities and equipment installed, used or abandoned within the public
right-of-way.
C.Notwithstanding the foregoing, Mapping Data shall be submitted by all Registrants for
all equipment which is to be installed or constructed after the date of passage of this
Chapter at the time any permits are sought under these ordinances.
D.A new Registrant, or a Registrant which has not submitted a plan as required above,
shall submit complete and accurate Mapping Data for all its equipment at the time any
permits are sought under these ordinances.
3.Telecommunication Equipment.
Information on existing facilities and equipment of telecommunications right-of-way users
need only be supplied in the form maintained by the telecommunications right-of-way user.
Ordinance No. 1351 Page 26
4.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, subp. 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 Director reasonably requires it.
Permittees or their subcontractors shall submit to the Director evidence satisfactory to the
Director of the installed service lateral locations. Compliance with this subdivision 2 and
with applicable Gopher State One Call law and Minnesota Rules governing service laterals
installed after Dec. 31, 2005, shall be a condition of any City approval necessary for:
A.payments to contractors working on a public improvement project, including those under
Minnesota Statutes, Chapter 429, and
B.City approval under development agreements or other subdivision or site plan approval
under Minnesota Statutes, Chapter 462. The Director 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
407.22. LOCATION OF FACILITIES
1.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.
2.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 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.
Any Registrant who has Facilities 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 Facilities are located, move the Facilities to the assigned
position within the Excavation of 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 Facilities, public safety, customer Service needs and hardship to the
Registrant.
3.Nuisance.
Any facilities found in a right-of-way that have not been registered shall be 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 or taking possession of the Equipment or Facilities
and restoring the right-of-way to a usable condition.
Ordinance No. 1351 Page 27
4.Limitation of Space.
To protect 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.
407.23. RELOCATION OF FACILITIES
A Registrant 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 the
City for good cause requests such removal and relocation, and shall restore the Right-of-Way
consistent with Minnesota Rules, Parts 7819.0050 – 7819.9950. The City may make such
request to prevent interference by the Company’s Equipment or Facilities with (i) a present or
future City use of the Right-of-Way, (ii) a public improvement undertaken by the City, (iii) an
economic development project in which the City has an interest or investment, (iv) when the
public health, safety and welfare require it, or (v) when necessary to prevent interference with
the safety and convenience of ordinary travel over the Right-of-Way.
Notwithstanding the foregoing, a Person 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 Person thereof.
407.24. PRE-EXCAVATION FACILITY AND FACILITIES LOCATION
In addition to complying with the requirements of Minnesota Statutes, Section 216D.01-.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 mark the
horizontal and vertical placement of all said Facilities. Any Registrant whose Facilities are less
than twenty (20) inches below a concrete or asphalt surface shall notify and work closely with
the excavation contractor to establish the exact location of its Facilities and the best procedure
for excavation.
407.25. DAMAGE TO OTHER FACILITIES
When the City does work in the Right-of-Way and finds it necessary to maintain, support, or
move a person’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 person and must be
paid within thirty (30) days from the date of billing. Each person shall be responsible for the
cost of repairing any Facilities in the Right-of-Way which it or its Facilities damages. Each
person shall be responsible for the cost of repairing any damage to the Facilities of another
persons caused during the City’s response to an Emergency occasioned by that persons
Facilities.
Ordinance No. 1351 Page 28
407.26. RIGHT-OF-WAY VACATION
1.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 Registrant’s or Permittee’s Facilities, the
registrant’s rights in the vacated right-of-way are governed by Minnesota Rules, Part
7819.3200 and the City shall reserve, to and for itself and all Registrants having Facilities in
the vacated Right-of-Way, the right to install, maintain and operate any Facilities in the
vacated Right-of-Way and to enter upon such Right-of-Way at any time for the purpose of
reconstructing, inspecting, maintaining or repairing the same.
2.Relocation of Facilities.
If the vacation requires the relocation of Registrant’s or Permittee’s Facilities; and (i) if the
vacation proceedings are initiated by the Registrant or Permittee, the Registrant or Permittee
must pay the relocation costs; or (ii) if the vacation proceedings are initiated by the City, the
Registrant or Permittee must pay the relocation costs unless otherwise agreed to by the City
and the Registrant or Permittee; or (iii) if the vacation proceedings are initiated by a Person
or Persons other than the Registrant or Permittee, such other Person or Persons must pay the
relocation costs.
407.27. INDEMNIFICATION AND LIABILITY
1.Authority, Generally.
As a condition for issuing a permit for work on a public right-of-way, the City may require
the permittee to indemnify the City against liability claims. The City may require
indemnification when a permit authorizes a permittee to obstruct or excavate on or within a
public right-of-way to install, maintain, or repair the permittee’s facilities.
2.Claims Indemnified
City may require the permittee to defend, indemnify, and hold harmless the City from all
liability or claims of liability for bodily injury or death to persons, or for property damage,
in which the claim:
A.alleges a negligent or otherwise wrongful act or omission of the permittee or its
employee, agent, or independent contractor in installing, maintaining, or repairing the
permittee’s facilities; and alleges that the City is liable, without alleging any independent
negligent, or otherwise wrongful act or omission on the part of the City; or
B.is based on the City negligent or otherwise wrongful act or omission in issuing the permit
or in failing to properly or adequately inspect or enforce compliance with a term,
condition or purpose of the permit granted to the permittee.
3.Claims not Indemnified
A permittee is not required to indemnify the City for losses or claims occasioned by the
negligent or otherwise wrongful act or omission of the City except:
A.to the extent authorized in subpart 2 regarding the issuance of a permit or the inspection
or enforcement of compliance with the permit; or
B.when otherwise provided in an applicable franchise agreement.
Ordinance No. 1351 Page 29
4.Remedy is Additional; Subrogation
A defense or indemnification of the City by a permittee is deemed not to be a waiver of any
defense or immunity otherwise available to the City.
A permittee, in defending any action on behalf of the City is entitled to assert every defense
or immunity that the City could assert in its own behalf.
407.28. ABANDONED AND UNUSABLE FACILITIES
1.Discontinued Operations.
A Registrant who has determined to discontinue all or a portion of its operations in the City
must provide information satisfactory to the City that the Registrant’s obligations for its
Facilities in the Right-of-Way under this Chapter have been lawfully assumed by another
Registrant and locate and provide to the City a map which clearly identifies the facility and
also maintains it as a real property record.
2.Abandoned Facilities.
Facilities of a Registrant who fails to comply with Subd. 1 of this Section, and which, for
two (2) years, remains unused or one year after the passage of this Chapter, any Facilities
found in a Right-of-Way that have not been Registered with the City shall be deemed to be
abandoned. Abandoned Facilities are deemed to be a nuisance. The City may exercise any
remedies or rights it has as law or in equity, including, but not limited to, (i) abating the
nuisance, (ii) taking possession of the Facilities and restoring the Right-of-Way to a useable
condition, or (iii) requiring removal of the Facilities by the Registrant, or the Registrant’s
successor in interest.
3.Removal.
Any Registrant who has unused, unusable and 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 or other
remedy agreed to.
407.29. APPEAL
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
Minnesota Statutes, Section 237.163, subd. 6; or (5) disputes a determination of the Director
regarding Section 1.24, subd.2 of this ordinance may have the denial, revocation, fee imposition,
or decision reviewed, upon written request, by the City Council. The City Council shall act on a
timely written request at its next regularly scheduled meeting. A decision by the City Council
affirming the denial, revocation, or fee imposition will be in writing and supported by written
findings establishing the reasonableness of the decision.
407.30. 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.
Ordinance No. 1351 Page 30
407.31. SEVERABILITY
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.
407.32. FEES
Any fees imposed under this Chapter shall be reviewed and adopted at least annually at the
same time and in the same manner as other fees established by the City.
At any time, in its discretion, the City expressly reserves the right to review the fees imposed in
this Chapter and, upon notice and public hearing, modify them if it is satisfied that such action
is necessary to reflect the cost of regulating and supervising the activities governed by this
Chapter.
SECTION III: That Chapter 11FEES be hereby amended as follows
:
CODE SUBJECT FEE
407
407.07 Excavation Permit $350
Obstruction Permit $50
Small Wireless Facility Permit $150
Permit Extension Fee $20
Delay Penalty $125 week
TH
PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF FRIDLEY THIS 18
DAY OF DECEMBER 2017.
__________________________
Scott J. Lund, Mayor
ATTEST:
_____________________________
Debra A. Skogen, City Clerk
First Reading: December 11, 2017
Second Reading: December 18, 2017
Publication Date: December 29, 2017
AFFIDAVIT OF PUBLICATION CITY OF FRIDLEY
NOTICE OF ORDINANCE
STATE OF MINNESOTA )ss NOTICE PUBLICATION)EGAL SUMMAR
COUNTY OF ANOKA ORDINANCE NO.1351
AN ORDINANCE TO REPEAL
Darlene MacPherson being duly sworn on an CHAPTER 407 AND ENACT
oath, states or affirms that he/she is the A NEW CHAPTER OF THE
Publisher's Designated Agent of the newspa- CODE OF ORDINANCES
TO ADMINISTER AND
per(s)known as: REGULATE THE PUBLIC
RIGHTS OF WAY IN
SF Columbia Heights/Fridley THE PUBLIC INTEREST
AND TO PROVIDE FOR
THE ISSUANCE AND
with the known office of issue being located REGULATION FOF RIGHT
in the county of: OF WAY PERMITS AND
ANOKA TO AMEND CHAPTER 11
with additional circulation in the counties of: TO REFLECT NEW FEES
ANOKA FOR SMALL WIRELESS
FACILITIES IN THE PUBLIC
and has full knowledge of the facts stated RIGHTS OF WAY
below: 1.Ii e
(A)The newspaper has complied with all of An ordinance of the City Frid-
ley,Minnesota,amending thea Frid-
the requirements constituting qualifica- ley City Code Chapter 407.Rights
tion as a qualified newspaper as provided of Way Management.
by Minn.Stat.§331A.02. 11.Summa
The City unci)of the City of
(B)This Public Notice was printed and pub-
Fridley does hereby ordain as fol-
lished in said newspaper(s) once each lows:
week, for 1 successive week(s); the first New legislation was adopted
insertion being on 01/05/2018 and the last by the Minnesota State Legislature
m
insertion being on 01/05/2018. at requires the City to permit the
installation of small wireless facili-
ties within public rights of way.To
MORTGAGE FORECLOSURE NOTICES conform,the City has worked with
Pursuant to Minnesota Stat. §580.033 the League of Minnesota Cities,
the Suburban Rate Authority and
relating to the publication of mortgage City Attomey to incorporate appli-
foreclosure notices: The newspaper complies cable language and minor updates
with the conditions described in §580.033, to Fridley City Code Chapter 407
Rights of Way Management.
subd. 1, clause (1) or(2). If the newspapers RigIll Notice
known office of issue is located in a county This title and summary has been
adjoining the county where the mortgaged published to clearly infonn the pub-
premises or some part of the mortgaged lic of the intent and effect of the
premises described in the notice are located, Fridley City Code. A copy of the
ordinance, in its entirety, is avail-
a substantial portion of the newspaper's able for inspection by any person
circulation is in the latter county. during regular business hours at
the offices of the City Clerk of the
City of Fridley,6431 University Ave
N.E.,Fridley,MN.
$y; OIL P� PASSED AND ADOPTED BY
Designated Agent THE CITY COUNCIL OF THE CITY
OF FRIDLEY THIS 18th DAY OF
DECEMBER 2017.
Subscribed and sworn to or affirmed before SCOTT J.LUND
me on 01/05/2018 by Darlene MacPherson. MAYOR
ATTEST: DEBRA A.SKOGEN
CITY CLERK
First Reading December 11,2017;
Second Reading December 18,
2017
Published in the
Columbia Hgts-Fridley Sun Focus
January 5,2018
Notary Public 770023
PAULINE L LEE
Notary PubliC•Minnasota
My Cor""10M"10M ExPirsa Jan 31,2021
Rate Information:
(1)Lowest classified rate paid by commercial users
for comparable space:
$25.40 per column inch
Ad ID 770023