HomeMy WebLinkAboutOrd. 478 - 8-2 Right-of-WayCITY OF ANDOVER
COUNTY OF ANOKA
STATE OF MINNESOTA
ORDINANCE NO. 478
An Ordinance repealing Ordinance No. 247 adopted January 18, 2000.
AN ORDINANCE REGULATING PUBLIC RIGHT-OF-WAY MANAGEMENT AND TO
PROVIDE FOR THE ISSUANCE AND REGULATIONS OF RIGHT-OF-WAY PERMITS.
The City Council of the City of Andover ordains the following:
SECTION
8-2-1: Findings, Purpose, and Intent
8-2-2: Election to Manage the Public Right -of -Way
8-2-3: Definitions
8-2-4: Administration
8-2-5: Utility Coordination Committee
8-2-6: Registration and Right-of-way Occupancy
8-2-7: Registration Information
8-2-8: Reporting Obligations
8-2-9: Permit Requirement
8-2-10: Permit Application
8-2-11: Issuance of Permit; Conditions
8-2-12: Action on Small Wireless Facility Permit Applications
8-2-13: Permit Fees as Identified in the Fee Schedule
8-2-14: Right -of -Way Patching and Restoration
8-2-15: Joint Applications
8-2-16: Supplementary Applications
8-2-17: Other Obligations
8-2-18: Denial or Revocation of Permit
8-2-19: Installation Requirements
8-2-20: Inspection
8-2-21: Work Done Without a Permit
8-2-22: Supplementary Notification
8-2-23: Revocation of Permit
8-2-24: Mapping Data
8-2-25: Location and Relocation of Facilities
8-2-26: Pre -Excavation Facilities Location
8-2-27: Damage to Other Facilities
8-2-28: Right -of -Way Vacation
8-2-29: Indemnification and Liability
8-2-30: Abandoned and Unusable Facilities
8-2-31: Appeal
8-2-32: Reservation of Regulatory and Police Powers
8-2-33: Severability
8-2-1. 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 of Andover hereby enacts this new chapter of this code relating to right-of-
way permits and administration. This chapter imposes reasonable regulation on the placement and
maintenance of facilities and equipment currently within its rights-of-way or to be placed therein
at some future time. It is intended to complement the regulatory roles of state and federal agencies.
Under this chapter, persons excavating and obstructing the rights-of-way will bear 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 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 2017 Session Laws, Chapter 94 amending the Act and the other laws governing
applicable rights of the City and users of the right-of-way. This chapter shall also be interpreted
consistent with Minnesota Rules 7819.0050 —7819.9950 and Minnesota Rules Chapter 7560
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. This chapter shall not be interpreted to limit 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.
8-2-2. ELECTION TO MANAGE THE PUBLIC RIGHT-OF-WAY:
Pursuant to the authority granted to the City under state and federal statutory, administrative
and common law, the City hereby elects, pursuant Minn. Stat. 237.163 subd. 2(b), to manage
rights-of-way within its jurisdiction.
8-2-3. 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.
Abandoned Facility. A facility no longer in service or physically disconnected from a portion of
the operating facility, or from any other facility, that is in use or still carries service. A facility is
not abandoned unless declared so by the right-of-way user.
Applicant. Any person requesting permission to excavate or obstruct a right-of-way.
City. The City of Andover, Minnesota. For purposes of section 8-2-29, City also means the
City's elected officials, officers, employees and agents.
Collocate or Collocation. To install, mount, maintain, modify, operate, or replace a small
wireless facility on, under, within, or adjacent to an existing wireless support structure or utility
pole that is owned privately, or by the City or another governmental unit.
Commission. The State Public Utilities Commission.
Congested Right -of -Way. 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.
Construction Performance Bond. Any of the following forms of security provided at
permittee's option:
• Individual project bond;
• Cash deposit;
• Security of a form listed or approved under Minn. Stat. Sec. 15.73, subd. 3;
• 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.
Degradation. 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.
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.
Degradation Fee. The estimated fee established at the time of permitting by the City to recover
costs associated with the decrease in the useful life of the right-of-way caused by the excavation,
and which equals the degradation cost.
Department. The department of public works of the City.
Director. The director of the department of public works of the City, or her or his designee
Delay Penalty. The penalty imposed as a result of unreasonable delays in right-of-way
excavation, obstruction, patching, or restoration as established by permit.
Emergency. A condition that (1) poses a danger to life or health, or of a significant loss of
property; or (2) requires immediate repair or replacement of facilities in order to restore
service to a customer.
Equipment. Any tangible asset used to install, repair, or maintain facilities in any right-of-way
Excavate. To dig into or in any way remove or physically disturb or penetrate any part of a
right-of-way.
Excavation permit. The permit which, pursuant to this chapter, must be obtained before a
person may excavate in a right-of-way. An Excavation permit allows the holder to excavate
that part of the right-of-way described in such permit.
Excavation permit fee. Money paid to the City by an Applicant to cover the costs as provided
in Section 8-2-13.
Facility or Facilities. Any tangible asset in the right-of-way required to provide Utility
Service.
Five-year project plan. Shows projects adopted by the City for construction within the next
five years.
High Density Corridor. A designated portion of the public right-of-way within which
telecommunications right-of-way users having multiple and competing facilities may be
required to build and install facilities in a common conduit system or other common structure
Hole. An excavation in the pavement, with the excavation having a length less than the width
of the pavement.
Local Representative. 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.
Management Costs. 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 or small wireless facility 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 or small wireless facility permits. Management costs do not include payment by a
telecommunications right-of-way user for the use of the right-of-way, unreasonable fees of a
third -party contractor used by the City including fees tied to or based on customer counts,
access lines, or revenues generated by the right-of-way or for the City, the fees and 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 8-2-31 of this chapter.
Obstruct. To place any tangible object in a right-of-way so as to hinder free and open passage
over that or any part of the right-of-way.
Obstruction Permit. The permit which, pursuant to this chapter, must be obtained before a
person may obstruct a right-of-way, allowing the holder to hinder free and open passage over
the specified portion of that right-of-way, for the duration specified therein.
Obstruction Permit Fee. Money paid to the City by a permittee to cover the costs as provided
in Section 8-2-13.
Patch or Patching. 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.
Pavement. Any type of improved surface that is within the public right-of-way and that is
paved or otherwise constructed with bituminous, concrete, aggregate, or gravel.
Permit. Has the meaning given "right-of-way permit" in Minnesota Statutes, section 237.162.
Permittee. Any person to whom a permit to excavate or obstruct a right-of-way has been
granted by the City under this chapter.
Person. An individual or entity subject to the laws and rules of this state, however organized,
whether public or private, whether domestic or foreign, whether for profit or nonprofit, and
whether natural, corporate, or political.
Probation. The status of a person that has not complied with the conditions of this chapter.
Probationary Period. One year from the date that a person has been notified in writing that
they have been put on probation.
Registrant. Any person who (1) has or seeks to have its equipment or facilities located in any
right-of-way, or (2) in any way occupies or uses, or seeks to occupy or use, the right-of-way or
place its facilities or equipment in the right-of-way.
Restore or Restoration. The process by which an excavated right-of-way and surrounding
area, including pavement and foundation, is returned to the same condition and life expectancy
that existed before excavation.
Restoration Cost. The amount of money paid to the City by a permittee to achieve the
level of restoration according to plates 1 to 13 of Minnesota Public Utilities Commission
rules.
Public Right -of -Way or Right -of -Way. The area on, below, or above a public roadway,
highway, street, cartway, bicycle lane or public sidewalk in which the City has an interest,
including other dedicated rights-of-way for travel purposes and utility easements of the City.
A right-of-way does not include the airwaves above a right-of-way with regard to cellular or
other nonwire telecommunications or broadcast service.
Right -of -Way Permit. Either the excavation permit or the obstruction permit, or both,
depending on the context, required by this chapter.
Right -of -Way User. (1) A telecommunications right-of-way user as defined by 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.
Service or Utility Service. Includes (1) those services provided by a public utility as defined
in Minn. Stat. 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 Minn. Stat. 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 Minn. Stat., Chapter 308A; and (6) water, and
sewer, including service laterals, steam, cooling or heating services.
Service Lateral. An underground facility that is used to transmit, distribute or furnish 'gas,
electricity, communications, or water from a common source to an end-use customer. A
service lateral is also an underground facility that is used in the removal of wastewater from a
customer's premises.
Small Wireless Facility. A wireless facility that meets both of the following qualifications:
each antenna is located inside an enclosure of no more than six cubic feet in volume
or could fit within such an enclosure; and
ii 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.
Supplementary Application. An application made to excavate or obstruct more of the right-
of-way than allowed in, or to extend, a permit that had already been issued.
Temporary Surface. 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.
Trench. An excavation in the pavement, with the excavation having a length equal to or greater
than the width of the pavement.
Telecommunications right-of-way user. 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 providing wireless service, or transporting telecommunication or other voice or data
information. For purposes of this chapter, a cable communication system defined and regulated
under Minn. Stat. Chap. 238, and telecommunication activities related to providing natural gas
or electric energy services, a public utility as defined in Minn. Stat. Sec. 21613.02, a
municipality, a municipal gas or power agency organized under Minn. Stat. Chaps. 453 and
453A, or a cooperative electric association organized under Minn. Stat. Chap. 308A, are not
telecommunications right-of-way users for purposes of this chapter except to the extent such
entity is offering wireless service.
Two Year Project Plan. Shows projects adopted by the City for construction within the next
two years.
Utility Pole. A pole that is used in whole or in part to facilitate telecommunications or electric
service.
Wireless Facility. Equipment at a fixed location that enables the provision of wireless services
between user equipment and a wireless service network, including equipment associated with
wireless service, a radio transceiver, antenna, coaxial or fiber-optic cable, regular and backup
power supplies, and a small wireless facility, but not including wireless support structures,
wireline backhaul facilities, or cables between utility poles or wireless support structures, or not
otherwise immediately adjacent to and directly associated with a specific antenna.
Wireless Service. Any service using licensed or unlicensed wireless spectrum, including the
use of Wi-Fi, whether at a fixed location or by means of a mobile device, that is provided using
wireless facilities. Wireless service does not include services regulated under Title VI of the
Communications Act of 1934, as amended, including cable service.
Wireless Support Structure. A new or existing structure in a right-of-way designed to
support or capable of supporting small wireless facilities, as reasonably determined by the City.
8-2-4 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.
8-2-5. 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.
8-2-6. REGISTRATION AND RIGHT-OF-WAY OCCUPANCY:
A. Registration. Each person who occupies or uses, or seeks to occupy or use, 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
B. Registration Prior to Work. No person may construct, install, repair, remove, relocate, or
perform any other work on, or use any facilities or any part thereof, in any right-of-way
without first being registered with the City.
C. Exceptions. Nothing herein shall be construed to repeal or amend the provisions of a City
ordinance permitting persons to plant or maintain boulevard plantings or gardens in the area of
the right-of-way between their property and the street curb. Persons planting or maintaining
boulevard plantings or gardens shall not be deemed to use or occupy the right-of-way, and shall
not be required to obtain any permits or satisfy any other requirements for planting or
maintaining such boulevard plantings or gardens under this chapter. However, nothing herein
relieves a person from complying with the provisions of the Minn. Stat. Chap. 216D, Gopher
One Call Law.
8-2-7. REGISTRATION INFORMAITON:
Information Required. The information provided to the City at the time of registration shall
include, but not be limited to:
1. Each registrant's name, Gopher One -Call registration certificate number, address and
e-mail address, if applicable, and telephone and facsimile numbers.
2. The name, address and e-mail address, if applicable, and telephone and facsimile
numbers of a local representative. The local representative or designee shall be
available at all times. Current information regarding how to contact the local
representative in an emergency shall be provided at the time of registration.
A certificate of insurance or self-insurance:
a. Verifying that an insurance policy has been issued to the registrant by an
insurance company licensed to do business in the State of Minnesota, or a form
of self-insurance acceptable to the City;
b. Verifying that the registrant is insured against claims for personal injury,
including death, as well as claims for property damage arising out of the (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;
c. Naming the City as an additional insured as to whom the coverages required
herein are in force and applicable and for whom defense will be provided as to
all such coverages;
d. Requiring that the City be notified thirty (30) days in advance of
cancellation of the policy or material modification of a coverage term; and
e. Indicating comprehensive liability coverage, automobile liability coverage,
workers compensation and umbrella coverage established by the City in
amounts sufficient to protect the City and the public and to carry out the
purposes and policies of this chapter.
f The City may require a copy of the actual insurance policies.
g. If the person is a corporation, a copy of the certificate is required to be filed
under Minn. Stat. Sec. 300.06 as recorded and certified to by the Secretary of
State.
h. A copy of the person's order granting a certificate of authority from the
Minnesota Public Utilities Commission or other authorization or approval from
the applicable state or federal agency to lawfully operate, where the person is
lawfully required to have such authorization or approval from said commission or
other state or federal agency.
B. Notice of Changes. The registrant shall keep all of the information listed above
current at all times by providing to the City information as to changes within fifteen (15)
days following the date on which the registrant has knowledge of any change.
8-2-8. REPORTING OBLIGATIONS:
A. Operations. Each registrant shall, at the time of registration and by December 1 of
each year, file a construction and major maintenance plan for underground facilities with
the City. 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:
1. 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
2. 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, 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 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.
B. Additional Next -Year Projects. Notwithstanding the foregoing, the City will not
deny an application for a right-of-way permit for failure to include a project in a plan
submitted to the City if the registrant has used commercially reasonable efforts to
anticipate and plan for the project.
8-2-9. PERMIT REQUIREMENT:
A. Permit Required. Except as otherwise provided in this code, no person may obstruct
or excavate any right-of-way, or install or place facilities in the right-of-way, without first
having obtained the appropriate right-of-way permit from the City to do so.
1. 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.
2. Obstruction Permit. An obstruction permit is required by a registrant to hinder free
and open passage over the specified portion of right-of-way by placing equipment
described therein on the right-of-way, to the extent and for the duration specified
therein. An obstruction permit is not required if a person already possesses a valid
excavation permit for the same project.
3. Small Wireless Facility Permit. A small wireless facility permit is required by a
registrant to erect or install a wireless support structure, to collocate a small wireless
facility, or to otherwise install a small wireless facility in the specified portion of the
right-of-way, to the extent specified therein, provided that such permit shall remain in
effect for the length of time the facility is in use, unless lawfully revoked. In addition
to a permit for an area zoned Residential a Conditional Use Permit shall be required.
B. 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.
C. Delay Penalty. In accordance with Minnesota Rule 7819.1000 subp. 3 and notwithstanding
subd. 2 of this Section, the City shall establish and impose a delay penalty for unreasonable
delays in right-of-way excavation, obstruction, patching, or restoration. The delay penalty shall
be established from time to time by City council resolution as identified in the Fee Schedule.
D. 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.
8-2-10. 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.
3. Payment of money due for the following items is at the City's discretion and as
identified in the Fee Schedule:
a. permit fees, estimated restoration costs and other management costs;
b. prior obstructions or excavations;
c. any undisputed loss, damage, or expense suffered by the City because of
Applicant's prior excavations or obstructions of the rights-of-way or any emergency
actions taken by the City;
d. franchise fees or other charges, 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. 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.
8-2-11. ISSUANCE OF PERMIT; CONDITIONS:
A. Permit Issuance. If the Applicant has satisfied the requirements of this chapter, the City shall
issue a permit.
B. Conditions. The City may impose reasonable conditions upon the issuance of the permit and
the performance of the Applicant thereunder to protect the health, safety and welfare or when
necessary to protect the right-of-way and its current use. In addition, a permittee shall comply
with all requirements of local, state and federal laws, including but not limited to Minnesota
Statutes §§ 216D.01 - .09 (Gopher One Call Excavation Notice System) and Minnesota Rules
Chapter 7560.
C. Small Wireless Facility Conditions. In addition to subdivision B, the erection or installation
of a wireless support structure, the collocation of a small wireless facility, or other installation of
a small wireless facility in the right-of-way, shall be subject to the following conditions: A small
wireless facility shall only be collocated on the particular wireless support structure, under those
attachment specifications, and at the height indicated in the applicable permit application.
1. No new wireless support structure installed within the right-of-way shall exceed 50
feet in height without the City's written authorization, provided that the City may
impose a lower height limit in the applicable permit to protect the public health,
safety and welfare or to protect the right-of-way and its current use, and further
provided that a registrant may replace an existing wireless support structure
exceeding 50 feet in height with a structure of the same height subject to such
conditions or requirements as may be imposed in the applicable permit.
2. No wireless facility may extend more than 10 feet above its wireless support
structure.
3. Where an Applicant proposes to install a new wireless support structure in the
right-of-way, the City may impose separation requirements between such structure
and any existing wireless support structure or other facilities in and around the right-
of-way.
4. Where an Applicant proposes collocation on a decorative wireless support
structure, sign or other structure not intended to support small wireless facilities, the
City may impose reasonable requirements to accommodate the particular design,
appearance or intended purpose of such structure.
5. Where an Applicant proposes to replace a wireless support stricture, the City may
impose reasonable restocking, replacement, or relocation requirements on the
replacement of such structure.
6. City has the authority to approve aesthetics of structure/equipment consistent with
the character of the area.
D. 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 -col location agreement may require payment of the
following:
1. Up to $150 per year for rent to collocate on the City structure.
2. $25 per year for maintenance associated with the collocation;
3. A monthly fee for electrical service as follows:
a. $73 per radio node less than or equal to 100 maximum watts;
b. $182 per radio node over 100 maximum watts; or
c. The actual costs of electricity, if the actual cost exceeds 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,
8-2-12. ACTION ON SMALL WIRELESS FACILITY PERMIT APPLICATIONS:
A. Deadline forAction. 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 anv associated building permit application, shall be deemed approved if the City fails to
approve or deny the application within the review periods established in this section.
B. Consolidated Applications. An Applicant may file a consolidated small wireless facility
permit application addressing the proposed collocation of up to 15 small wireless facilities, or a
greater number if agreed to by 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.
C. Tolling of Deadline. The 90 -day deadline for action on a small wireless facility permit
application may be tolled if:
1. The City receives applications from one or more Applicants seeking approval of
permits for more than 30 small wireless facilities within a seven-day period. In such
case, the City may extend the deadline for all such applications by 30 days by informing
the affected Applicants in writing of such extension.
2. The Applicant fails to submit all required documents or information and the City
provides written notice of incompleteness to the Applicant within 30 days of receipt 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.
8-2-13. PERMIT FEES AS IDENTIFIED IN THE FEE SCHEDULE:
A. Excavation Permit Fee. The City shall impose an excavation permit fee in an amount
sufficient to recover:
management costs;
degradation costs, if applicable.
B. Obstruction Permit Fee. The City shall impose an obstruction permit fee in an amount
sufficient to recover management costs.
C. Small Wireless Facility Permit Fee. The City shall impose a small wireless facility permit
fee in an amount sufficient to recover:
1. management costs, and;
2. City engineering, make-ready, and construction costs associated with collocation of
small wireless facilities.
D. Payment of Permit Fees. No excavation permit or obstruction permit shall be issued
without payment of excavation or obstruction permit fees. The City may allow Applicant to
pay such fees within thirty (30) days of billing.
E. Non Refundable. Permit fees that were paid for a permit that the City has revoked for a
breach as stated in Section 8-2-23 are not refundable.
F. Application to Franchises. Unless otherwise agreed to in a franchise, management costs may
be charged separately from and in addition to the franchise fees imposed on a right-of-way user
in the franchise.
8-2-14. RIGHT-OF-WAY PATCHING AND RESTORATION:
A. Timing. The work to be done under the excavation permit, and the patching and restoration
of the right-of-way as required herein, must be completed within the dates specified in the
permit, increased by as many days as work could not be done because of circumstances beyond
the control of the permittee or when work was prohibited as unseasonal or unreasonable under
Section 8-2-16.
B. Patch and Restoration. Permittee shall patch its own work within fourteen (14) days of
completion of the work. The City may choose either to have the permittee restore the right-
of-way or to restore the right-of-way itself.
1. City Restoration. If the City restores the right-of-way, permittee shall pay the costs
thereof within thirty (30) days of billing. If, 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 correcting the defective
work.
2. Permittee Restoration. If the permittee restores the right-of-way itself, it shall
at the time of application for an excavation permit post a construction
performance bond in accordance with the provisions of Minnesota Rule
7819.3000.
3. Degradation Fee in Lieu of Restoration. In lieu of right-of-way restoration, a
right-of-way user may elect to pay a degradation fee. However, the right-of-way user
shall remain responsible for patching and the degradation fee shall not include the
cost to accomplish these responsibilities.
C. Standards. The permittee shall perform excavation, backfilling, patching and restoration
according to the standards and with the materials specified by the City and shall comply with
Minnesota Rule 7819.1100.
D. Duty to Correct Defects. The permittee shall correct defects in patching or restoration
performed by permittee or its agents. The 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 unseasonable or unreasonable under Section
8-2-16.
E. Failure to Restore. If the permittee fails to restore the right-of-way in the manner and to the
condition required by the City, or fails to satisfactorily and timely complete all restoration
required by the City, the City at its option may do 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.
8-2-15. JOINT APPLICATIONS:
A. Joint application. Registrants may jointly apply for permits to excavate or obstruct the right-
of-way at the same place and time.
B. 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.
C. 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.
8-2-16. SUPPLEMENTARY APPLICATIONS:
A. Limitation on Area. A right-of-way permit is valid only for the area of the right-of-way
specified in the permit. No permittee may do any work outside the area specified in the permit,
except as provided herein. Any permittee which determines that an area greater than that
specified in the permit must be obstructed or excavated must before working in that greater area
(i) make application for a permit extension and pay any additional fees required thereby, and (ii)
be granted a new permit or permit extension.
B. Limitation on Dates. A right-of-way permit is valid only for the dates specified in the
permit. No permittee may begin its work before the permit start date or, except as provided
herein, continue working after the end date. If a permittee does not finish the work by the permit
end date, it must apply for a new permit for the additional time it needs, and receive the new
permit or an extension of the old permit before working after the end date of the previous
permit. This supplementary application must be submitted before the permit end date.
8-2-17. OTHER OBLIGATIONS:
A. 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 but not limited to Minnesota Statutes,
Section 216D.01-.09 (Gopher One Call Excavation Notice System) and Minnesota Rules
Chapter 7560. A permittee shall perform all work in conformance with all applicable codes and
established rules and regulations, and is responsible for all work done in the right-of-way
pursuant to its permit, regardless of who does the work.
B. Prohibited Work. Except in an emergency, and with the approval of the City, no right-of-way
obstruction or excavation may be done when seasonally prohibited or when conditions are
unreasonable for such work.
C. 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.
D. Trenchless excavation. As a condition of all applicable permits, permittees employing
trenchless excavation methods, including but not limited to Horizontal Directional Drilling,
shall follow all requirements set forth in 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.
8-2-18. DENIAL OR REVOCATION OF PERMIT:
A. Reasons for Denial. The City may deny a permit for failure to meet the requirements and
conditions of this chapter or if the City determines that the denial is necessary to protect the
health, safety, and welfare or when necessary to protect the right-of-way and its current use.
Subd. ? B. 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 thirty (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 thirty (30) days after submission.
8-2-19. INSTALLATION REQUIREMENTS:
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 and 7819.5000 and other
applicable local requirements, in so far as they are not inconsistent with the Minnesota Statutes,
Sections 237.162 and 237.163. Installation of service laterals shall be performed in accordance
with Minnesota Rules Chapter 7560 and these ordinances. Service lateral installation is further
subject to those requirements and conditions set forth by the City in the applicable permits
and/or agreements referenced in Section 4-43 8-2-24 B of this ordinance.
8-2-20. INSPECTION:
A. Notice of Completion. When the work under any permit hereunder is completed, the
permittee shall furnish a completion certificate in accordance Minnesota Rule 7819.1300.
B. 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.
C. Authority of Director.
1. At the time of inspection, the Director may order the immediate cessation of any
work which poses a serious threat to the life, health, safety or well-being of the public.
2. The Director may issue an order to the permittee for any work that 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
Director that the violation has been corrected. If such proof has not been presented
within the required time, the Director may revoke the permit pursuant to Sec. 8-2-23..
8-2-21. WORK DONE WITHOUT A PERMIT:
A. Emergency Situations. Each registrant shall immediately notify the Director of any event
regarding its facilities that 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
(2) 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 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 the registrant whose facilities occasioned
the emergency.
B. Non -Emergency Situations. Except in an emergency, any person who, without first having
obtained the necessary permit, obstructs or excavates a right-of-way must subsequently obtain a
permit and, as a penalty, pay double the normal fee for said permit, pay double all the other fees
required by the City code, deposit with the City the fees necessary to correct any damage to the
right-of-way, and comply with all of the requirements of this chapter.
8-2-22. 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.
8-2-23. REVOCATION OF PERMITS:
A. Substantial Breach. The City reserves its right, as provided herein, to revoke any right-of-
way permit without a fee refund, if there is a substantial breach of the terms and conditions of
any statute, ordinance, rule or regulation, or any material condition of the permit. A substantial
breach by perrnittee shall include, but shall not be limited to, the following:
1. The violation of any material provision of the right-of-way permit;
2. An evasion or attempt to evade any material provision of the right-of-way permit, or
the perpetration or attempt to perpetrate any fraud or deceit upon the City or its citizens;
3. Any material misrepresentation of fact in the application for a right-of-way permit;
4. The failure to complete the work in a timely manner, unless a permit extension is
obtained or unless the failure to complete work is due to reasons beyond the permittee's
control; or
5. The failure to correct, in a timely manner, work that does not conform to a condition
indicated on an order issued pursuant to Sec 8-2-20.
B. Written Notice of Breach. If the City determines that the permittee has committed a
substantial breach of a term or condition of any statute, ordinance, rule, regulation or any
condition of the permit, the City shall make a written demand upon the permittee to remedy
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, at its discretion, to place
additional or revised conditions on the permit to mitigate and remedy the breach.
C. Response to Notice of Breach. Within 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 permittee's failure to timely submit an
acceptable plan, or permittee's failure to reasonably implement the approved plan, shall be cause
for immediate revocation of the permit. Further, permittee's failure to so contact the City, or
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.
D. Cause for Probation. From time to time, the City may establish a list of conditions
of the permit, which if breached will automatically place the permittee on probation for
one full year, such as, but not limited to, working out of the allotted time period or
working on right-of-way grossly outside of the permit authorization.
E. Automatic Revocation. If a permittee, while on probation, commits a breach as
outlined above, permittee's permit will automatically be revoked and permittee will
not be allowed further permits for one full year, except for emergency repairs.
F. Reimbursement of City costs. If a permit is revoked, the permittee shall also reimburse the
City for the city's reasonable costs, including restoration costs and the costs of collection and
reasonable attorneys' fees incurred in connection with such revocation.
8-2-24. MAPPING DATA:
A. Information Required. Each registrant and permittee shall provide mapping
information required by the City in accordance with Minnesota Rules 7819.4000 and
7819.4100. Within ninety (90) days following completion of any work pursuant to a
permit, the permittee shall provide the Director accurate maps and drawings certifying the
"as -built" location of all equipment installed, owed and maintained by the permittee. Such
maps and drawings shall include the horizontal and vertical location of all facilities and
equipment and shall be provided consistent with the City's electronic mapping system,
when practical or as a condition imposed by the Director. Failure to provide maps and
drawings pursuant to this subsection shall be grounds for revoking the permit holder's
registration.
B. Service Laterals. All permits issued for the installation or repair of service laterals,
other than minor repairs as defined in Minnesota Rules 7560.0150 subpart 2, shall require
the permittee's use of appropriate means of establishing the horizontal locations of
installed service laterals and the service lateral vertical locations in those cases where the
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 B and with applicable Gopher State One Call law and
Minnesota Rules -governing service laterals installed after December 31, 2005 shall be a
condition of any City approval necessary for
1. payments to contractors working on a public improvement project including
those under Minnesota Statutes Chapter 429 and
2. 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.
8-2-25. LOCATION AND RELOCATION OF FACILITIES:
A. Placement, location, and relocation of facilities must comply with the Act, with other
applicable law, and with Minnesota Rules 7819.3100, 7819.5000 and 7819.5 100, to the extent
the rules do not limit authority otherwise available to cities.
B. Undergrounding. Unless otherwise agreed in a franchise or other agreement between the
applicable right-of-way user and the City, Facilities in the right-of-way must be located or relocated and
maintained underground in accordance with Section 11-4-13 of the City Code.
C. 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 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 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.
D. Nuisance. One year after the passage of this chapter, 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 facilities and restoring the right-of-way to a useable condition.
E. Limitation of Space. To protect health, safety, and welfare, or when necessary to protect the
right-of-way and its current use, the City shall have the power to prohibit or limit the placement
of new or additional facilities within the right-of-way. In making 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.
8-2-26. PRE -EXCAVATION FACILITIES LOCATION:
In addition to complying with the requirements of Minn. Stat. 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.
2-8-27. DAMAGE TO OTHER FACILITIES:
When the City does work in the right-of-way and finds it necessary to maintain, support, or
move a registrant's facilities to protect it, the City shall notify the local representative as early
as is reasonably possible. The costs associated therewith will be billed to that registrant and
must be paid within 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
damage. Each registrant shall be responsible for the cost of repairing any damage to the
facilities of another registrant caused during the City's response to an emergency occasioned by
that registrant's facilities.
8-2-28. RIGHT-OF-WAY VACATON:
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.
8-2-29. INDEMNIFICATION AND LIABILITY:
By registering with the City, or by accepting a permit under this chapter, a registrant or
permittee agrees to defend and indemnify the City in accordance with the provisions of
Minnesota Rule 7819.1250.
8-2-30. ABANDONED AND UNUSABLE FACILITIES:
A. 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.
B. Removal. Any registrant who has abandoned facilities in any right-of-way shall remove it
from that right-of-way if required in conjunction with other right-of-way repair, excavation, or
construction, unless this requirement is waived by the City.
8-2-31. APPEAL:
A right-of-way user that: (1) has been denied registration; (2) has been denied a permit; (3) has
had a permit revoked; (4) believes that the fees imposed are not in conformity with Minn. Stat. §
237.163, Subd. 6; or (5) disputes a determination of the Director regarding Section8-2-23 Subd.
B 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, provided the right-of-way user has submitted its appeal with
sufficient time to include the appeal as a regular agenda item. A decision by the City council
affirming the denial, revocation, or fee imposition will be in writing and supported by written
findings establishing the reasonableness of the decision.
8-2-32. RESERVTION OF REGULATORY AND PUBLIC POWERS:
A permittee's rights are subject to the regulatory and police powers of the City to adopt and
enforce general ordinances as necessary to protect the health, safety and welfare of the public.
8-2-33. 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.
Adopted by the City Council of the City of Andover on this 51h day of February 2018.
Attest: - LLUC 1 r/, r ' ^ _ CITY OF ANDOVt�
�i'.1 Y
i elle Hartner - Deputy City Clerk Julie Trude -Mayor
CITY OF ANDOVER
COUNTY OF ANOKA
STATE OF MINNESOTA
ORDINANCE NO. 478 SUMMARY
AN ORDINANCE TO REPEAL ORDINANCE NO. 247 ADOPTED JANUARY 18, 2000 AND TO
ORDAIN CITY CODE TITLE 8 PUBLIC WAYS AND PROPERTY, CHAPTER 2 PUBLIC RIGHT OF
WAY MANAGEMENT
STATUTORY AUTHORIZATION AND POLICY
Statutory Authorization
This ordinance amendment is adopted pursuant to the authorization and policies contained in Minnesota
Statute 412.
Policy
The purpose of these regulations is to protect the public health, safety and welfare. City Code Title 8,
Chapter 2 is established to manage the public right-of-way, to recover its right of way management costs and
to regulate right of way by providers of telecommunication services, small wireless facilities, and public
utility services in the City of Andover.
GENERAL PROVISIONS AND DEFINITIONS
Jurisdiction
The provisions of this ordinance shall apply to the City of Andover.
Enforcement
The City Administrator or his/her designee shall have the authority to enforce the provisions of this
ordinance.
Interpretation
Interpretation of the provisions of this ordinance shall be held to be the minimum requirements and shall be
liberally construed in the favor of the governing body.
A printed copy of this ordinance is available for inspection by any person during regular hours of the City
Clerk.
Adopted by the City Council of the City of Andover on this 5' day of February, 2018.
ATTEST: CITY OF ANDOVER
Melle Harmer, Deputy City Clerk uli Trude, Mayor