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Ord 552CITY OF SHOREWOOD ORDINANCE NO. 552 AN ORDINANCE AMENDING TITLE 900, CHAPTER 901 OF THE SHOREWOOD CITY CODE RELATING TO STREETS AND PUBLIC RIGHT -OF -WAY THE CITY COUNCIL OF THE CITY OF SHOREWOOD, MINNESOTA ORDAINS AS FOLLOWS: Section 1. Title 900, Chapter 901 of the Shorewood City Code are hereby repealed and replaced with the following: TITLE 900 CHAPTER 901 STREETS AND PUBLIC RIGHT -OF -WAY Section 901.01 Right of Way Management 901.02 Administration 901.03 Encroachments 901.04 House numbering 901.05 Underground utilities 901.06 Registration 901.07 Permit Required 901.08 Permit Applications; Fees; Security; Other 901.09 Diligence in Performing Work 901.10 Standards During Construction or Installation 901.11 Repair and Restoration 901.12 Permit Limitations 901.13 Denial of Permit 901.14 Emergency Work 901.15 Revocation of Pert-nits 901.16 Appeal 901.17 Mapping 901.18 Location of Facilities and Equipment 901.19 Undergrounding and Relocation of Facilities 901.20 Pre - excavation Facilities Location 901.21 Inspection 901.22 Authority of Director or City Engineer 901.23 Right -of -Way Vacation 901.24 Abandoned and Unusable Equipment 901.25 Indemnification and Liability 901.26 Franchise Holders 901.27 Supplementary Applications 901.28 Other Obligations 901.29 Severability 901.30 Violation 901.01 RIGHT OF WAY MANAGEMENT. Subd. 1. Findings and Purpose. 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 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 where possible. To the extent any provision of this chapter cannot be interpreted consistently with the Minnesota Rules, Minnesota Rules, that interpretation most consistent with the Act and other applicable statutory and case law is intended. It is the purpose of this section to provide for lawful incidental private use of publicly -owned rights-of-way not inconsistent with public use. 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. Subd. 2. Election to Manage the Public Rights -of -Way. Pursuant to the authority granted to the City under state and federal statutory, administrative and common law, the City hereby elects, pursuant Minn. Stat. 237.163 subd. 2(b), to manage rights -of -way within its jurisdiction. Subd. 3. Definitions. The following words, terms and phrases, as used herein, have the following meanings: 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" 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 as determined by the City Engineer. "Applicant" means any person requesting permission to excavate or obstruct a right -of -way. "City" means the City of Shorewood, Minnesota. For purposes of section 901, "City" means its elected officials, officers, employees and agents. "City 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 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. City 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 901.16 of this chapter. "Collocate or Collocation. To install, mount, maintain, modify, operate, or replace any piece of equipment, including 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. "Commission" means the State Public Utilities Commission. "Congested Right-of- Way" means a crowded condition in the subsurface of the public right -of -way that occurs when the maximum lateral spacing between existing underground facilities does not allow for construction of new underground facilities without using hand digging to expose the existing lateral facilities in conformance with Minnesota Statutes, section 216D.04. subdivision 3, over a continuous length in excess of 500 feet. "Construction Performance Bond" means any of the following forms of security provided at permittee's option: a. Cash deposit; b. Security of a form listed or approved under Minn. Stat. Sec. 15.73, subd. 3; C. Letter of Credit, in a form acceptable to the City; "Department" means the City. "Department Inspector" means any person authorized by the City to carry out inspections related to the provisions of this chapter. "Director" means the City. "Delay Penalty" is the penalty imposed as a result of unreasonable delays in right -of -way excavation, obstruction, patching, or restoration as established by permit. "Emergency" means a condition that (1) poses a danger to life or health, or of a significant loss of property; or (2) requires immediate repair or replacement of facilities in order to restore service to a customer. "Equipment" means any tangible asset used to install, repair, or maintain facilities in any right -of -way. "Excavate" means to dig into or in any way remove or physically disturb or penetrate any part of a right - of -way. "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. "Excavation permit fee" means money paid to the City by an applicant to cover the costs as provided in Section 901.08. "Facility" or "Facilities" means any tangible asset in the right -of -way required to provide Utility Service. "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. "Hole" means an excavation in the pavement, with the excavation having a length less than the width of the pavement. "Landscaping" means the use of living plants to modify an area of land, including ornamental shrubs, plants and flowers. For purposes of this chapter, the definition excludes trees, boulders, other natural obstructions, and manmade features such as fences, structures, patios, parking pad, and the like. "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. "Obstruct" means to place any tangible object in a right -of -way so as to hinder free and open passage over that or any part of the right -of -way. "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 the duration specified therein. "Obstruction Permit Fee" means money paid to the City by a permittee to cover the costs as provided in Section 901.08 "Patch" or "Patching" means a method of pavement replacement that is temporary in nature. A patch consists of (1) the compaction of the sub base 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" means 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" means any person to whom a permit to excavate or obstruct a right -of -way has been granted by the City under this chapter. "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. "Public Ground" means land owned or otherwise controlled by the City for park, open space, fire lanes, or similar public purpose which are held for public use which land is not a Public Right -of -Way. "Public Right -of -Way" or "Right -of -Way" means 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 non -wire telecommunications or broadcast service. "Pole Attachment Permit" A City required permit for any equipment or appurtenance attached to any pole located in the Public Way or Public Ground, whether owned by the City or not. "Public Street" The improved, traveled or surfaced portion of any public right -of -way or roadway. "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 occupy 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" 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. "Restoration Cost" means the amount of money paid to the City by a permittee to achieve the level of restoration according to plates I to 13 of Minnesota Public Utilities Commission rules. "Right-of- Way Permit" means either the excavation permit or the obstruction permit, or both, depending on the context, required by this chapter. "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. "Service" or "Utility Service" includes (l) those services provided by a public utility as defined in Minn. Stat. 2168.02, 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" means an underground facility that is used to transmit, distribute, or furnish a common source to an end -use customer. A service lateral is also an underground facility that is used in the removal of wastewater, storm water, or sump pump discharge from a customer's premises. "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. "Storm Water" means water that originates during precipitation events and snow /ice melt. "Supplementary Application" means an application made to excavate or obstruct more of the right -of -way than allowed in, or to extend, a permit that had already been issued. "Temporary Surface" means the compaction of sub base 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" means an excavation in the pavement, with the excavation having a length equal to or greater than the width of the pavement. "Telecommunication right -of -way user" means a person or company installing or 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 services. "Utility Pole" means a pole that is used in whole or in part to facilitate telecommunications or electric service. "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 transreceiver, 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" 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 901.02 ADMINISTRATION. The City Engineer is the principal City official responsible for the administration of the rights -of -way, right -of -way permits, and the ordinances related thereto. The City Engineer may delegate any or all of the duties hereunder. 901.03 ENCROACHMENTS. Subd.1. Purpose. The public welfare requires that the public rights -of -way within the City, including highways, roads, streets and alleys, be reserved for public purposes. Public use of the full width of the rights -of -way is necessary to public safety and the proper and efficient maintenance of the rights -of -way. However, it is recognized that limited private use or encroachment onto the rights -of -way is not necessarily inconsistent with public use. It is the purpose of this section to provide for lawful incidental private use of publicly -owned rights -of -way not inconsistent with public use. I . The mailbox shall be on a single post located on the side of the right -of -way contiguous with the mailbox owner's property or is positioned or clustered according to specific directions of the United States Postal Service; 2. Mailboxes servicing a planned unit development (PUD) are positioned or clustered with the platted portion of the PUD or on the side of the right -of -way contiguous with the PUD; 3. The location of the mail box or mailboxes does not interfere with the City's maintenance of the right-of-way. b) Landscaping 1. All landscaping must be vegetative and remain under three feet in height. (1987 Code, § 901.02) (Ord. 121, passed 5 -28 -1980; Ord. 204, passed 2 -8 -1988; Ord. 239, passed 6 -24- 1991) 901.04 HOUSE NUMBERING. Subd. 1. Numbering system. To assist in providing immediate access to all lots, buildings and structures in the City, the same shall be numbered in accordance with the following plan: a) North -south numbers shall commence at the south border of the City and north -south streets shall begin at the number 4600 and run to 6200; b) East -west numbers shall commence at the east border of the City and east -west streets shall begin at the number 19200 and run to 28400; c) Odd numbers shall be on the south and east sides of the streets; even numbers shall be on the north and west sides of the streets. There shall be 100 numbers to each block, as assigned on a grid of 330 feet for east -west numbers; and 100 numbers to each block as assigned on a grid of 660 feet for north -south numbers. d) On Enchanted and Shady Islands, numbers shall be assigned on a west to east basis only. Commencing at the west border of Enchanted Island and running to the tip of Shady Island, numbers shall begin at the number 4200 and run to 5400. There shall be 100 numbers to each block assigned on a grid of 330 feet for each block west to east. Subd. 2. House numbers assigned, chart kept. The City shall assign a street number to each house and /or structure in the City, and shall maintain records showing the proper street number of every lot, parcel and building in the City which shall be open to inspection by any interested person. Subd. 3. Placement and size of numbers. It shall be the duty of the owners and occupants of every house and structure in the city to display in a place visible from the street, figures at least six inches high showing the number of the house or other residential structure. The size of figures on all other occupancies shall be governed by the fire code regulations and shall conform to Minnesota Statutes 299F.011. Subd. 4. Violation. Any person violating the terms of this section shall be guilty of a petty misdemeanor. (1987 Code, § 901.03) (Ord. 76, passed 10 -8 -1973; Ord. 105, passed 9 -11 -1978) Penalty, see § 104.01 901.05 UNDERGROUND UTILITIES. Subd. 1. All utilities installed after the effective date of these regulations, including, but not limited to electrical, telephone and cable television lines, shall be buried unless otherwise approved by the City Council. Subd. 2. Existing overhead utilities within road rights -of -way in this section and of a capacity less than 115 kilovolts are declared to be nonconforming and must be buried at the time they are replaced due to aging or capacity limitations or relocated due to road construction or reconstruction within the rights -of- way in which they share space, unless otherwise approved by the City Council. Any modification to an existing facility or new facility with a capacity of 115 kilovolts or greater shall be subject to the conditional use permit requirements provided in Section 1201.04. This provision shall not apply to existing overhead utilities located on rear or side lot line easements which directly serve adjacent properties. Subd. 3. Existing overhead utilities which are to be buried in conformance with Subd. 2 shall be done so under the terms and requirements as provided in the applicable franchise agreement for the affected utility, if so stipulated. In the absence of franchise agreement stipulations for the affected utility, the burial shall occur under the terms, expense and scheduling requirements as required by the City at the time the overhead utility is replaced or relocated. Substitute stipulations may be provided between the affected utility and the City. (Am. Ord. 378, passed 1 -14 -2002) 901.06 REGISTRATION. Subd. 1. Annual Registration Required. 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. Such registration shall be made on an application form provided by the City Engineer and shall be accompanied by the registration fee provided in Section 1301.02 of this Code. Subd. 2. Registration Prior to Work. No person may construct, install, repair, remove, relocate, or perform any other work on, or use any facilities or any part thereof, in any right-of-way without first being registered with the City. Subd. 3. Registration Information. The registrant shall provide the following at the time of registration; a) Registrant's name, address, telephone number, facsimile number, email address and Gopher One - Call registration certificate number if required by State law. b) Name, address, telephone number, email address and facsimile number of the person responsible for fulfilling the obligations of the registrant. c) A Certificate of Insurance from a company licensed to do business in the State of Minnesota. Such certificate shall verify that the registrant is insured against claims for personal injury, including death, as well as claims for property damage arising out of the (1.) use and occupancy of the right -of -way by the registrant, its officers, agents, employees and permittees, and (2.) placement and use of equipment or 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 equipment and collapse of property. Such certificate shall also name the City as an additional insured as to whom the coverage's required herein are in force and applicable and for whom defense will be provided as to all such coverages. Such certificate shall require that the City be notified 30 days prior to cancellation of the policy. Such insurance shall provide coverage in accordance with MN Statute 466.04 and provide minimum coverage in the following amounts, as Council may amend from time to time: 1. General liability: a. Public Liability, including premises, products and complete operations; Bodily injury liability: $1,000,000 each person, $3,000,000 each occurrence and Property damage liability: $3,000,000 each occurrence b. In lieu of above requirements, bodily injury and property damage combined: $3,000,000 single limit. Comprehensive: a. Automobile liability insurance, including owned, non -owned and hired vehicles: b. Bodily injury liability: $1,000,000 each person, $3,000,000 each occurrence and Property damage; $3,000,000 each occurrence. c. In lieu of above Comprehensive insurance coverage, bodily injury and property damage combined $3,000,000 single limit. d) 24 hour emergency number. e) An acknowledgment by the registrant of the indemnification pursuant to Subd. 2 of Subsection 901.25. f) If the person is a corporation, a copy of the certificate is required to be filed under Minn. Stat. 300.06 as recorded and certified to by the Secretary of State. g) When applicable, 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. h) 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. i) Such other information the City may require. Subd. 4. Exceptions. The following are not subject to the requirements of this Subsection. a) Persons engaged in snow removal activities. b) Federal, State, County, and City agencies. c) Persons acting as agents, contractors or subcontractors for a registrant who has properly registered in accordance with this Subsection 901.06. Subd. 5. Term. Registrations issued pursuant to this Section shall expire on December 31 of each calendar year. Subd. 6. Registrant obligations. All registrants are obligated to: a) Respond, in a timely manner, and in all cases no longer than 30 (thirty) days, to all requests, inquiries, and correspondence from the City. b) Attend any pre - construction, progress meetings upon notification from the City of their required attendance. Failure to attend such meetings shall be considered a default on the registration conditions, and result in the Registrant being removed from the city's registration without refund of any fees. Re- registration cannot occur for the remainder of that calendar year. 901.07 PERMIT REQUIRED. Subd. 1. 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. a) Excavation Permit. An excavation permit is required by a registrant to excavate that part of the right -of -way described in such permit and to hinder free and open passage over the specified portion of the right -of -way by placing facilities described therein, to the extent and for the duration specified therein. b) 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. c) Small Wireless Facility Permit. A small wireless facility permit is required by 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. d) Pole/ Pole Attachment Permit. A pole permit shall be required for the placement of new utility poles as well as anytime a new attachment is made to any pole, new or existing, privately or publicly owned. Subd. 2. Permit Extensions. No person may excavate or obstruct the right -of -way beyond the date or dates specified in the permit unless (i) such person makes a supplementary application for another right- of -way permit before the expiration of the initial permit, and (ii) a new permit or permit extension is granted. Subd. 3. Delay Penalty. In accordance with Minnesota Rule 7819.1000 subd. 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. Subd. 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. 901.08 PERMIT APPLICATIONS; FEES; SECURITY; OTHER. Application for a permit is made to the City. An application for a permit shall be made on forms provided by the City Engineer and shall be accompanied by the fees as determined by the City Council from time to time, which are established to reimburse the City for City costs. Permit applications shall contain, and will be considered complete only upon compliance with the requirements of the following provisions: Subd. 1. Application. a) Scaled drawings showing the location of all facilities and improvements existing and proposed by the applicant. b) A description of the methods that will be used for installation. c) A proposed schedule for all work. d) The location of any public streets, sidewalks or alleys that will be temporarily closed to traffic during the work. e) The location of any public streets, sidewalks or alleys that will be disrupted by the work. f) A description of methods for restoring any public improvements disrupted by the work. g) Any other information reasonably required by the City Engineer. h) Traffic control plan referencing the Minnesota Manual on Uniform Traffic Control Devices. i) Registration with the City pursuant to this chapter j) Permit fees, estimated restoration costs and other management costs k) Prior obstructions or excavations, 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; 1) Franchise fees or other charges, if applicable. m) If the work is to be performed by an agent, contractor or subcontractor on behalf of a registrant, such application shall be signed by the registrant. Subd. 2. Permit Fee. a) The City shall impose permit fees in an amount sufficient to recover the City's costs. b) Payment of disputed amounts due the City by posting letter of credit or depositing in an escrow account an amount equal to at least 110% of the amount owing. e) Posting an additional or larger construction cash deposit or letter of credit 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. Subd. 3. 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. Subd. 4. Non Refundable. Permit fees that were paid for a permit that the City has revoked for a breach as stated in Section 901.15 are not refundable. Subd. 5. To Franchises. Unless otherwise agreed to in a franchise, City costs may be charged separately from and in addition to the franchise fees imposed on a right -of -way user in the franchise. Subd.6. Security. Unless specifically stated in a franchise agreement with the city, companies shall provide a surety bond, letter of credit or cash deposit _in the amount determined by the City Engineer but not less than $2,000 shall be required from each applicant. A surety bond shall be from a corporate surety authorized to do business in the State. Security required pursuant to this Subd. 2 shall be conditioned that the holder will perform the work in accordance with this Section and applicable regulations, will pay to the City any costs incurred by the City in performing work pursuant to this Section; and will indemnify and save the City and its officers, agents and employees harmless against any and all claims, judgment or other costs arising from any excavation and other work covered by the permit or for which the City, Council or any City officer may be liable by reason of any accident or injury to persons or property through the fault of the permit holder, either in improperly guarding the excavation or for any other injury resulting from the negligence of the permit holder. In addition to the above - referenced security, non - franchise utility right of way users shall provide an irrevocable letter of credit, or cash deposit that shall remain in force as long as the non - franchise utility user has facilities in the city's right of way. The amount of this security shall be determined from time to time by the City Council. This security shall be in addition to the security required from any subcontractor doing work on behalf of the non - franchise right of way utility. The bond, letter of credit or cash deposit shall be released by the City upon completion of the work and compliance with all conditions imposed by the permit. For permits allowing excavations within public streets, such bond, letter of credit or cash deposit shall be held for a period of 24 months to guaranty the adequacy of all restoration work. Subd. 7. Permit Issuance; 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.No permit shall be issued to anyone who has failed to register in accordance with Subsection 901.06. Subd. 8. Small Wireless Facility Conditions. In addition to subdivision 3, the erection or installation of a wireless support structure, the collocation of a small wireless facility, or other installation of a small wireless facility in the right -of -way, shall be subject to the following conditions: a) A small wireless facility shall only be collocated on the particular wireless support structure, under those attachment specifications, and at the height indicated in the applicable permit application. b) No new wireless support structure installed within the right -of -way shall exceed 50 feet in height without the city's written authorization, provided that the city may impose a lower height limit in the applicable permit to protect the public health, safety, and welfare or to protect the right -of- way and its current use, and further provided that the registrant may replace an existing wireless support structure exceeding 50 feet in height with a structure of the same height subject to such conditions or requirements as may be imposed in the applicable permit. c) No wireless facility may extend more than 10 feet above its wireless support structure. d) Where an applicant proposes to install a new wireless support structure in the right -of -way, the city may impose separation requirements between such structure and any existing wireless support structure or other facilities in and around the right -of -way. e) Where an applicant proposes collocation on a decorative wireless support structure, sign or other structure not intended to support small wireless facilities, the city may impose reasonable requirements to accommodate the particular design, appearance or intended purpose of such structure. f) Where an applicant proposes to replace a wireless support structure, the city may impose reasonable restocking, replacement, or relocation requirements on the replacement of such structure. g) Screening, disguising, or other zoning requirements shall be found in the City Code, Section 1201.03, Subdivision 21. Subd. 9. Small Wireless Facility Agreement. A small wireless facility shall only be collocated on a small wireless support structure owned by 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 shall require payment of the following fees: • $150 per year for rent to collocate on the city structure. ! $25 per year for maintenance associated with the collocation. • A monthly fee for electrical service as follows: i. $73 per radio node less than or equal to 100 maximum watts; ii. $182 per radio node over 100 maximum watts; or iii. The actual costs of electricity, if the actual cost exceeded 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. Subd. 10. Action on Small Wireless Facility Permit Applications. a) Deadline for Action. The City shall approve or deny a small wireless facility permit within 90 days after filing of such application, except as provided for in paragraph 3 of this section. 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 period established in this paragraph. 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 an application c) Tolling of Deadline. The 90 -day deadline for action on a small wireless facility permit application may be tolled if: 1. The City receives applications from one or more applicants seeking approval of permits for more than 30 small wireless facilities within a. seven -day period. In such case, the City may extend the deadline for all such applications by 30 days by informing the affected applicants in writing of such extension. 2. The applicant fails to submit all required documents or information and the city provides written notice of incompleteness to the applicant within 30 days of receipt of the application. Upon submission of additional documents or information the city shall have ten days to notify the applicant in writing of any still- inissing information. Once the complete application has been submitted, the 90 day deadline for action will begin. Subd. 11. Exceptions. No permit shall be required for the following: • Snow removal activities; • Activities of the City; or, Installation and maintenance of sewer or water services provided that no excavation or other work is done within a street, sidewalk or alley and all work is confined to unimproved portions of rights -of -way or easements. 901.09 DILIGENCE IN PERFORMING WORK. Work shall progress in an expeditious manner as reasonably permitted by weather conditions until completion in order to avoid unnecessary inconvenience to traffic. In the event that the work is not performed in accordance with applicable regulations pertaining to excavations and utility connections, or the work is not done in an expeditious manner, or shall cease or be abandoned without due cause, the City may, after 72 hour notice to the permit holder, correct the work and fill the excavation or repair the street. The entire cost of such work shall be paid by the permit holder upon demand made by the City. If permit holder fails to pay, the City will exercise a claim on the security. 901.10 STANDARDS DURING CONSTRUCTION OR INSTALLATION. The permit holder shall comply with the following standards when engaging in the work: a) Conduct the operations and perform the work in a manner as to ensure the least obstruction and interference to traffic. b) Take adequate precautions to ensure the safety of the general public and those who require access to abutting property. c) If required by the City Engineer, notify adjoining property owners prior to the commencement of work which may disrupt the use of and access to such adjoining properties. d) In all cases where construction work interferes with the normal use of the construction area, provide for closing the construction area to traffic or to afford it restricted use of the area and comply with the Minnesota Manual On Uniform Traffic Control Devices traffic safety signing requirements. e) Exercise precaution at all times for the protection of persons, including employees and property. f) Protect and identify excavations and work operations with barricade flags, and if required, by flagmen in the daytime, and by warning lights at night. g) Provide proper trench protection as required by O.S.H.A. when necessary and depending upon the type of soil, in order to prevent cave -ins endangering life or tending to enlarge the excavation. h) Protect the root growth of trees and shrubbery. i) Installation of pipe (utility conductors) under Portland Cement Concrete, asphalt concrete, or other high -type bituminous pavements shall be done by jacking, auguring or tunneling as directed by the City Engineer unless otherwise authorized. HDPE sleeving shall be an acceptable casing or sleeving material for telecommunications installations. j) When removing pavement of Portland Cement Concrete, asphalt concrete or high -type built -up bituminous surfacing, the pavement shall be removed on each side of the trench or excavation a distance of nine inches beyond the trench width and length, in order to provide a shoulder and solid foundation for the surface restoration. k) To obtain a straight edge and neat- appearing opening in pavement surfaces, the following procedure is required: 1. Portland Cement Concrete Pavement - The surface shall be saw -cut scored two inches deep and the concrete broken out by sledge or pneumatic hammer chisel. 2. Asphalt Concrete — The surface shall be cut full depth by pneumatic hammer chisel. 1) Excavations, trenches and jacking pits off the roadway or adjacent to the roadway or curbing shall be sheathed and braced depending upon location and soil stability, and as directed by the City. m) Excavations, trenches, directional borings, and jacking pits shall be protected when unattended to prevent entrance of surface drainage. n) All backfilling must be placed in six inch lifts at optimum moisture and compacted 100 percent of AASHTO density. Compaction shall be accomplished with hand, pneumatic or vibrating compactors as appropriate. Backfill material shall be Class 5, or better in the judgment of the City Engineer. The City Engineer may permit backfilling with the material from the excavation provided such material is granular in nature and acceptable to the City Engineer. o) Compacted backfill shall be brought to street grade and crowned to match the existing driving surface. p) Street and pedestrian traffic shall be maintained throughout construction unless provided otherwise by the permit. q) No lugs damaging to roadway surfaces may be used. r) Dirt or debris must be promptly removed during construction. s) Other reasonable standards and requirements of the City Engineer. 901.11 REPAIR AND RESTORATION. Subd. 1. Timing. The work to be done under the excavation permit, and the patching and restoration of the right -of -way as required herein, must be completed within the dates specified in the permit, increased by as many days as work could not be done because of circumstances beyond the control of the permittee. Permanent restoration of the driving surface shall be completed within three working days of completion of the backfilling. Permanent restoration of all other work shall be completed within ten days following backfilling or completion of the excavation work. Subd. 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 right -of -way itself. a) 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. The permit holder may request that the City restore the right -of -way. The permit holder shall pay to the City, in advance, a cash deposit equaling 150% of the estimated restoration cost. The restoration cost shall be estimated by the City Engineer. Following completion of the restoration, any finds in excess of the actual restoration cost shall be returned to the permit holder. b) Permittee Restoration. If the permittee restores the right -of -way itself, it shall at the time of application for an excavation permit post security as required by this ordinance. Subd. 3. 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. The permit holder shall perform repairs and restoration according to the standards and with the materials specified by the City. The City shall have the authority to prescribe the manner and extent of the restoration, and may do so in written procedures of general application or on a case -by -case basis. The City in exercising this authority shall be guided by the following standards and consideration: a) The number, size, depth and duration of the excavations, disruptions or damage to the right -of- way. b) The traffic volume carried by the right -of -way; the character of the neighborhood surrounding the right -of -way; c) The pre - excavation condition of the right -of -way; the remaining life - expectancy of the right -of- way affected by the excavation; d) Whether the relative cost of the method of restoration to the permit holder is in reasonable balance with the prevention of an accelerated depreciation of the right -of -way that would otherwise result from the excavation, disturbance or damage to the right -of -way; and e) The likelihood that the particular method of restoration would be effective in slowing the depreciation of the right -of -way that would otherwise take place. i) The excavation, backfilling, patching and restoration, and all other work performed in the right - of -way shall be done in conformance with Minnesota Rules 7819.1100 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 901.18 subd. 2 of this ordinance. Subd. 4. Duty to Correct Defects. The permittee shall correct defects in patching or restoration performed by permittee or its agents. The permittee , shall correct all restoration work to the extent necessary, using the method required by the City. Said work shall be completed within seven (7) calendar days of the notice being sent by 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. Subd. 5. Failure to Restore. If the permittee fails to restore the right -of -way in the manner and to the condition required by the City, or fails to satisfactorily complete all restoration required by the City, the City, at its option may do such work or hire a contractor to complete the work. Any restoration done in this manner will include an administrative charge to cover the City's cost, but said charge will in no event be less than $100.00 and the City will withhold permits for future work until reimbursement is made by the permittee. 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 letter of credit, cash deposit, or other financial guarantee. Failure to restore shall also be considered a violation of the registration requirements and may subject permittee to removal from city registration. Subd. 6. Guarantees. The permit holder shall guarantee its work and shall maintain it for twenty -four (24) months following its completion. During this twenty -four month period it shall, upon notification from the City Engineer, promptly correct all restoration work to the extent necessary, using the method required by the City Engineer. 901.12 PERMIT LIMITATIONS. Permits issued pursuant to this Section are valid only for the area of the right -of -way specified in the application and the permit and only for the dates so specified. No work shall be extended beyond the permitted area or dates without a new permit being procured therefore, provided the City Engineer may extend the completion date of the work in accordance with Subd. 1 of Subsection 901.11. 901.13 DENIAL OF PERMIT. Subd. 1. 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. 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 applicant 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. 901.14 EMERGENCY WORK. Subd. 1. Emergency Situations. Each registrant shall immediately notify the director of any event regarding its facilities that it considers to be an 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 Engineer becomes aware of an emergency, the City Engineer shall attempt to contact the local representative of each registrant affected, or potentially affected, by the emergency. In any event, the City Engineer may take whatever action deemed necessary to respond to the emergency, the cost of which shall be borne by the registrant whose facilities or equipment occasioned the emergency. Subd. 2. Non - Emergency Situations. Except in an emergency, any person who, without first having obtained the necessary permit, obstructs or excavates a right -of -way must subsequently obtain a permit 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. 901.15 REVOCATION OF PERMITS. Subd. 1. Substantial Breach. The City reserves its right, as provided herein, to revoke any right -of -way permit without a fee refund, if there is a substantial breach of the terms and conditions of any statute, ordinance, rule or regulation, or any material condition of the permit. A substantial breach by permittee shall include, but shall not be limited to, the following: a) The violation of any material provision of the right- of-way permit; b) An evasion or attempt to evade any material provision of the right -of -way permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the City or its citizens; 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) The failure to correct, in a timely manner, work that does not conform to a condition indicated on an order issued pursuant to Sec. 901.21. Subd.2. Written Notice of Breach. If the city determines that the permittee has committed a substantial breach of a term or condition of any statute, ordinance, rule, regulation, or any condition of the permit, the city shall make a written 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 or remedy the breach. Subd. 3. Response to Notice of Breach. Within forty -eight (48) hours of the city sending notification of the breach, permittee shall provide the city with a plan, acceptable to the city, which 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. Subd. 4. Reimbursement of City Costs. If a permit is revoked, the permittee shall also reimburse the city for the city's reasonable costs, including, but not limited to, restoration costs and the costs of collection and reasonable attorneys' fees incurred in connection with such revocation. 901.16 APPEAL. Subd. 1. Filing of Appeal. Any person aggrieved by, 1) the denial of a permit application, 2) the denial of a registration, 3) the revocation of a permit or, 4) the application of the fee imposed by the City of Shorewood's master fee schedule, may appeal to the Council by ding a written notice of appeal with the Clerk. Said notice must be filed with 20 days of the action causing the appeal. Subd. 2. Notice of Hearing. The Council shall hear the appeal not later than 30 days after the date the appeal is filed. Notice of the date, time, place, and purpose of the hearing shall be mailed to the appellant not less than 10 days before the date of the hearing. Subd. 3. Hearing and Decision. The Council shall, at such hearing, hear and consider any evidence offered by the appellant, the City Engineer, and anyone else wishing to be heard. After hearing the oral and written views of all interested persons, the Council shall make its decision at the same meeting or at a specified future meeting. 901.17 MAPPING. Subd. 1. Information Required. Each registrant and permittee, upon request by the City, shall provide mapping information required by the City in accordance with Minnesota Rules 7819.4000 and 7819.4100. Following completion of any work pursuant to a permit, and upon City request, the permittee shall provide the City Engineer accurate maps and drawings certifying the "as- built" location of all equipment installed, owned and maintained by the permittee. Such maps and drawings shall include the horizontal and vertical location of all facilities and equipment and shall be provided consistent with the City's mapping system. Failure to provide maps and drawings pursuant to this subsection shall be grounds for revoking the permit holder's registration. Subd. 2. 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. 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 install after December 31, 2005, shall be a condition of any City approval necessary for l) payments to contractors working on a public improvement project including those under Minnesota Statutes, Chapter 429, and 2) City approval of performance 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 for future permits to the offending permittee or its subcontractors. 901.18 LOCATION OF FACILITIES AND EQUIPMENT. Subd. 1. Undergrounding by Telecommunications Right -of -Way Users. Any new construction and the installation of new equipment and replacement of old equipment of telecommunication right -of -way users shall be underground or contained within buildings or other structures in conformity with applicable codes. Provided, telecommunications right -of -way users may attach equipment and facilities to existing poles and structures maintained by a service or utility service. New and improved telecommunications facilities shall be made available for service to abutting parcels on the same terms and conditions available to others in the same service area. Subd. 2. Corridors. The City Engineer may assign specific corridors within the right -of -way, or any particular segment thereof as may be necessary, for each type of equipment that is or, pursuant to current technology, the City Engineer expects will someday be located within the right -of -way. All permits issued by the City Engineer involving the installation or replacement of equipment shall designate the proper corridor for the equipment at issue. Subd. 3. Limitation of Space. To protect health and safety, the City Engineer shall have the power to prohibit or limit the placement of new or additional equipment within the right -of -way if there is insufficient space to accommodate all of the requests of registrants or persons to occupy and use the right -of -way. In making such decisions, the City Engineer shall strive to the extent possible to accommodate all existing and potential users of the right -of -way, but shall be guided primarily by considerations of the public interest, the public's needs for the particular utility service, the condition of the right -of -way, the time of year with respect to essential utilities, the protection of existing equipment 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. 901.19 RELOCATION OF FACILITIES. Subd.l. Placement, location, and relocation of facilities must comply with the Act, with other applicable law, and with Minnesota Rules 7819.3100, 7819.5000, 7819.5100, to the extent the rules do not limit authority otherwise available to cities. a) Relocation notification procedure. The City shall notify the utility owner at least 90 days in advance of the need to relocate existing facilities so the owner can determine if relocation or replacement is required and plan for any required work. The City shall provide a second notification to the owner one (1) month before the owner needs to begin the relocation. The utility owner shall begin relocation of the facilities within one (1) month of the second notification. To the extent technically feasible, all utilities shall be relocated within one (1) month or in a time frame determined by the City. The City may allow a different schedule if it does not interfere with the City's project. The utility owner shall diligently work to relocate the facilities within the above schedule. The registrant shall restore any rights -of -way to the condition it was prior to removal and relocation. b) Delay to City Project. The City shall notify the utility owner if the owner's progress will not meet the relocation schedule. If the owner fails to meet the relocation schedule due to circumstances within its control, the City may charge the utility owner for all costs incurred and requested by a contractor working for the City who is delayed because the relocation is not completed in the scheduled timeframe and for all costs incurred by the City due to the delay. c) Delay Penalties. Delay penalties under this section shall be set time to time by the City Council. d) For relocations or requests made by the City that are matters of convenience, and where the city shall be charged for such costs, the utility owner shall provide the city a detailed estimate of all relocation costs, including, but not limited to: quantities of all materials and supplies, cost for each quantity, labor costs, other. The City shall have the right to independently verify the cost to determine reasonableness. Subd. 2. Undergrounding of Relocated Telecommunications Facilities. A telecommunications right-of-way user shall relocate all above ground facilities and equipment to underground locations at its own cost and expense at the City's request when, i) the City requires the relocation of all telecommunications facilities and equipment to underground locations or ii) structures or poles to which the registrant's facilities or equipment is attached are abandoned or removed by the owner of such structures or poles, or as ordered removed by the City. Subd. 3. 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. Subd. 4. 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. Subd. 5. Fee Waiver. When relocation occurs in conjunction with a public improvement project, the City Engineer shall have discretion to waive all or a portion of the fees associated with the work that is occurring within the boundaries of the public improvement project. 901.20 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. 901.21 INSPECTION. Subd. 1. 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. Subd. 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. 901.22 AUTHORITY OF DIRECTOR OR CITY ENGINEER. a) At the time of inspection, the director or City Engineer 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 or City Engineer 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. 901.15. Subd. 1. 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. Subd. 2. Relocation of Equipment. If the vacation requires the relocation of registrant facilities and equipment; and (a) if the vacation proceedings are initiated by the registrant, the registrant must pay the relocation costs; or (b) if the vacation proceedings are initiated by the City, the registrant must pay the relocation costs unless otherwise agreed to by the City and the registrant; or (c) if the vacation proceedings are initiated by a person or persons other than the registrant or permit holder, such other person or persons must pay the relocation costs. Subd. 3. Notice. Required notification of request to vacate shall be done pursuant to MN Statutes 645.11. Subd. 1. Discontinued Operations. A registrant who has determined to discontinue its operations in the City must either: a) Provide information satisfactory to the City Engineer that the registrant's obligations for its equipment in the right -of -way under this Section have been lawfully assumed by another registrant; or b) Submit to the City Engineer an action plan for the removal or abandonment of equipment and facilities. The City Engineer shall require removal of such facilities and equipment if the City Engineer determines such removal is necessary to protect the public health, safety and welfare. The City Engineer may require the registrant to post a bond in an amount sufficient to reimburse the City for reasonably anticipated costs to be incurred in removing the facilities and equipment. Subd. 2. Abandoned Facilities and Equipment. Facilities and equipment of a registrant located on the surface of or above a right -of -way or on public grounds which remains unused shall be deemed to be abandoned. Such abandoned equipment is deemed to be a nuisance. The City may exercise any remedies or rights it has at law or in equity, including, but not limited to; a) Abating the nuisance; or b) Requiring removal of the equipment or facilities by the registrant, or the registrant's successor in interest. Appeals under this section shall follow the procedures in Section 901.16. Subd. 3. Removal of Underground Equipment. Any registrant who has unusable and abandoned underground facilities or equipment in any right -of -way shall promptly remove it from that right -of -way. W11 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. Subd. 1. Limitation of Liability. By reason of the acceptance of a registration or the grant of a right-of- way permit, the City does not assume any liability (a) for injuries to persons, damage to property, or loss of service claims by parties other than the registrant or the City, or (b) for claims or penalties of any sort resulting from the installation, presence, maintenance, or operation of equipment by registrants or activities of registrants. Subd. 2. Indemnification. By registering with the City Engineer, a registrant agrees, or by accepting a permit under this Section, a permit - holder is required, to defend, indemnify, and hold the City whole and harmless from all costs, liabilities, and claims for damages of any kind arising out of the construction, presence, installation, maintenance, repair or operation of its equipment, or out of any activity undertaken in or near a right -of -way , whether or not any act or omission complained of is authorized, allowed, or prohibited by a right -of -way permit. It further agrees that it will not bring, nor cause to be brought, any action, suit or other proceeding claiming damages, or seeking any other relief against the City for any claim nor for any award arising out of the presence, installation, maintenance or operation of its equipment, or any activity undertaken in or near a right -of -way, whether or not the act or omission complained of is authorized, allowed or prohibited by a right -of -way permit. The foregoing does not indemnify the City for its own negligence except for claims arising out of or alleging the City's negligence where such negligence arises out of or is primarily related to the presence, installation, construction, operation, maintenance or repair of said equipment by the registrant or on the registrant's behalf, including but not limited to, the issuance of permits and inspection of plans or work. This section is not, as to third parties, a waiver of any defense or immunity otherwise available to the registrant or to the City; and the registrant, in defending any action on behalf of the City, shall be entitled to assert in any action every defense or immunity that the City could assert in its own behalf. 901.26 FRANCHISE HOLDERS. If there is a conflict in terms between the franchise of an entity holding a valid franchise agreement with the City and this Section, the terms of the franchise shall prevail. For definitions and timelines contained within both this ordinance and the franchise agreement, the more restrictive provision shall govern. 901.27 SUPPLEMENTARY APPLICATIONS. Subd. 1. Limitation on Area. A right -of -way permit is valid only for the area of the right- of-way specified in the permit. No permittee may do any work outside the area specified in the permit, except as provided herein. Any permittee which determines that an area greater than that specified in the permit must be obstructed or excavated must before working in that greater area (i) make application for a permit extension and pay any additional fees required thereby, and (ii) be granted a new permit or permit extension. Subd. 2. Limitation on Dates. A right -of -way permit is valid only for the dates specified in the permit. No permittee may begin its work before the permit start 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. Subd. 1. Compliance With Other Laws. Obtaining a right -of -way permit does not relieve permittee of its duty to obtain all other necessary permits, licenses, and authority and to pay all fees required by the City or other applicable rule, law or regulation. A permittee shall comply with all requirements of local, state and federal laws, including but not limited to Minnesota Statutes, Section 216D.01 -.09 (Gopher One Call Excavation Notice System) and Minnesota Rules Chapters 7560 and 7819. A permittee shall perform all work in conformance with all applicable codes and established rules and regulations, and is responsible for all work done in the right -of -way pursuant to its permit, regardless of who does the work. Subd. 2. Prohibited Work Except in an emergency, and with the approval of the City, no right -of -way obstruction or excavation may be done when the City determines it is seasonally prohibited or when the City determines that the conditions are unreasonable for such work. Subd. 3. Interference with Right -of -Way. A perm ittee 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. Subd. 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. If any trenchless excavation crosses or intersects with a city sanitary sewer main or lateral, storm sewer main or lateral, catch basin, manhole or any associated structure, a post excavation televised inspection in accordance with the City's current standard specifications shall be made of all such crossings within 30 days of said work to ensure that the city utilities were not damaged or impacted by the trenchless excavation. Televised results shall be provided in a format acceptable to the city, and sent to the city within 30 days of the televising. 901.29 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. 901.30 VIOLATION. Any person who shall violate any of the provisions of this chapter shall be guilty of a misdemeanor, unless otherwise specified. (1987 Code, § 901.04) (Ord. 121, passed 5 -28 -1980) Penalty, see § 104.01 1: V Me I We V N9141 I itl brim 1 qaL, &- Sandie Thone, City Clerk 7 Sc erby, M day of