HomeMy WebLinkAboutOrdinance No. 113 Right-of-WayCity of Gem Lake, Ramsey County, Minnesota
Right -Of -Way
Ordinance No. 113
AN ORDINANCE TO ADMINISTER AND REGULATE THE PUBLIC RIGHT-OF-WAY IN THE PUBLIC
INTEREST AND TO PROVIDE FOR THE ISSUANCE AND REGULATION OF RIGHT-OF-WAY
PERMITS.
Section 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 hereby enacts this new
Section of this Code relating to right-of-way permits and administration. This Section imposes reasonable regulation
on the placement and maintenance of facilities and equipment currently within its rights -of -way or to be placed
therein at some future time. It is intended to complement the regulatory roles of the state and federal agencies. Under
this Section, persons excavating and obstructing the rights -of -way will bear financial responsibility for their work.
Finally, this Section provides for recovery of out-of-pocket and projected costs from persons using the public rights -
of -way.
This Section shall be interpreted consistently with Minnesota Statutes Sections 237.16, 237.162, 237.163, 237.79,
237.81, and 238.086 (the "Act") and the other laws governing applicable rights of the City and users of the right-of-
way. This Section shall also be interpreted consistent with Minnesota Rules 7819.0050 — 7819.9950 where possible.
To the extent any provision of this Section cannot be interpreted consistently with the Minnesota Rules, Minnesota
Rules, that interpretation most consistent with the Act and other applicable statutory case law is intended. This
Section 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.
1. Election to Manage the Public Right -of -Way. In accordance with the authority granted to the City under
state and federal statutory, administrative, and common law, the City hereby elects pursuant to this Section
to manage rights -of -way within its jurisdiction.
Section 2. Definitions. The following definitions apply in this Ordinance. References hereafter to "sections" are,
unless otherwise specified, references to sections in this Ordinance.
1. 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.
2. Applicant. Any person requesting permission to excavate, obstruct, or otherwise place facilities in a right-
of-way.
3. City. The city of Gem Lake, Minnesota. For purposes of Section 23, `city' also means the City's elected
officials, officers, employees, and agents.
4. City Engineer. The City Engineer, or other employee designated by the City Council to administer this
Ordinance.
5. 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 other governmental unit.
6. Commission. The State of Minnesota Public Utilities Commission.
7. Construction Performance Bond. Any of the following forms of security provided at permittee's option:
a. Individual project bond.
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b. Cash deposit.
c. Security of a form listed or approved under Minn. Stat. § 15.73, subd. 3.
d. Letter of Credit, in a form acceptable to the city.
e. Self-insurance, in a form acceptable to the city.
f. A blanket bond for projects within the city, or other form of construction bond, for a time specified
and, in a form, acceptable to the city.
8. 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.
9. Degradation Cost. Subject to Minn. R. 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 Minn. R., parts 7819.9900 to 7819.9950.
10. 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.
11. Department. The department of the city tasked by the City Council to oversee public works.
12. Delay Penalty. The penalty imposed as a result of unreasonable delays in right-of-way excavation,
obstruction, patching, or restoration as established by permit.
13. 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.
14. Equipment. Any tangible asset used to install, repair, or maintain facilities in any right-of-way.
15. Excavate. To dig into or in any way remove or physically disturb or penetrate any part of a right-of-way.
16. Excavation Permit. The permit which, pursuant to this ordinance, 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.
17. Excavation Permit Fee. Money paid to the city by an applicant to cover the costs as provided in Section 8.
18. Facility or Facilities. Any tangible asset in the right-of-way used to provide Utility or Telecommunications
Service.
19. Five -Year Project Plan. Shows projects adopted by the city for construction within the next five years.
20. 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 ordinance.
21. 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
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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 Minn. Stat. §§ 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 25 of this ordinance.
22. 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, or so as to hinder maintenance of any city asset.
23. Obstruction Permit. The permit which, pursuant to this ordinance, 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.
24. Obstruction Permit Fee. Money paid to the city by a permittee to cover the costs as provided in Section 8.
25. 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.
26. 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.
27. Permit. Has the meaning given "right-of-way permit" in this ordinance.
28. Permittee. Any person to whom a permit to excavate or obstruct a right-of-way has been granted by the
city under this ordinance.
29. 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.
30. Probation. The status of a person that has not complied with the conditions of this ordinance.
31. Probationary Period. One year from the date that a person has been notified in writing that they have been
put on probation.
32. 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.
33. 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.
34. 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.
35. Public Right -of -Way or Right -of -Way (ROW). 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.
36. Right -of -Way Permit. Either the excavation permit, the obstruction permit, the small cell permit, or any
combination thereof depending on the context, required by this ordinance.
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37. Right -of -Way User. (1) A telecommunications right-of-way user as defined by Minn. Stat., § 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.
38. Service or Utility Service. Includes (1) those services provided by a public utility as defined in Minn. Stat.
21613.02, 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. ch.
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., ch. 308A; and (6) water, and
sewer, including service laterals, steam, cooling, or heating services.
39. 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.
40. 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 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.
41. 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.
42. 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.
43. Trench. An excavation in the pavement, with the excavation having a length equal to or greater than the
width of the pavement.
44. 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
ordinance, a cable communication system defined and regulated under Minn. Stat. Ch. 238, and
telecommunication activities related to providing natural gas or electric energy services, a public utility as
defined in Minn. Stat. § 21613.02, a municipality, a municipal gas or power agency organized under Minn.
Stat. Ch. 453 and 453A, or a cooperative electric association organized under Minn. Stat. Ch. 308A, are not
telecommunications right-of-way users for purposes of this ordinance except to the extent such entity is
offering wireless service.
45. Two Year Project Plan. Shows projects adopted by the city for construction within the next two years.
46. Utility Pole. A pole that is used in whole or in part to facilitate telecommunications or electric service.
47. 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.
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48. 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.
49. 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.
Section 3. Administration. The City Engineer is the principal city official responsible for the administration of the
rights -of -way, right-of-way permits, and ordinances related thereto. The City Council may delegate any or all of the
duties hereunder.
Section 4. Permit Required. Except as otherwise provided in this Ordinance, 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
permit from the city.
1. Excavation Permit. A permit is required to excavate that part of the right-of-way described in such permit
and to hinder free and open passage over the specified portion of the right-of-way by placing facilities
described therein, to the extent and for the duration specified therein.
2. Obstruction Permit. A permit is required to hinder free and open passage over the specified portion of
right-of-way by placing equipment described therein on the right-of-way, to the extent and for the duration
specified therein. An obstruction permit is not required if a person already possesses a valid excavation
permit for the same project.
3. Small Wireless Facility Permit. A permit is required by a registrant to erect or install a wireless support
structure, to collocate a small wireless facility, or to otherwise install a small wireless facility in the
specified portion or the right-of-way, to the extent specified therein, provided that such permit shall remain
in effect for the length of time the facility is in use, unless lawfully revoked.
4. Permit Extensions. No person may excavate or obstruct the right-of-way beyond the date or dates
specified in the permit unless such person makes a supplementary application for another right-of-way
permit before the expiration of the initial permit, and a new permit or permit extension is granted.
5. Delay Penalty. In accordance with Minnesota Rule 7819.1000 Subpart 3, the City shall impose a delay
penalty for unreasonable delays in right-of-way excavation, obstruction, patching, or restoration. The
permittee shall not be assessed a delay penalty of delays in project commencement or completion due to
circumstances beyond the control of the permittee. An application for permit extension is independent of
delay and does not preclude the assessment of a delay penalty even if the extension is granted.
6. Permit Display. Permits issued under this Section shall be conspicuously displayed or otherwise available
at all times at the indicated work site and shall be available for inspection by the City Engineer.
Section 5. Permit Applications. Application for a permit shall contain, and will be considered complete only upon
compliance with the requirements of the following provisions:
1. Submission of a completed permit application form, including all required attachments, scaled drawings
showing the location and area of the proposed project and the location of all known existing and proposed
facilities, and the following information:
1. Each permittee's name, Gopher One -Call registration certificate number, address, email address, and
telephone number.
2. The name, address, e-mail address, and telephone number 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 application.
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3. A certificate of insurance or self-insurance:
1. Verifying that an insurance policy has been issued to the permittee by an insurance company
licensed to do business in the State of Minnesota, or a form of self-insurance acceptable to the
City Engineer.
2. Verifying that the permittee 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 permittee, its officers, agents, employees and permittees, and (2) placement and
use of facilities and equipment in the right-of-way by the permittee, its officers, agents,
employees and permittees, including, but not limited to, protection against liability arising
from completed operations, damage of underground facilities and collapse of property.
3. Naming the City as an additional insured as to whom the coverages required herein are in
force and applicable and for whom defense will be provided as to all such coverages.
4. Requiring that the City Engineer be notified thirty (30) days in advance of cancellation of the
policy or material modification of a coverage term.
5. Indicating comprehensive liability coverage, automobile liability coverage, workers
compensation and umbrella coverage in amounts established by the City Engineer sufficient
to protect the City and the public and to carry out the purposes and policies of this Section.
6. The City may require a copy of the actual insurance policies.
7. If the person is a corporation, a copy of the certificate required to be filed under Minnesota
Statute § 300.03 as recorded and certified to by the Secretary of State.
8. A copy of the person's order granting a certificate of authority from the Minnesota Public
Utilities Commission or other applicable state or federal agency, where the person is lawfully
required to have such certificate from said commission or other state or federal agency.
2. Payment of money due to the city for:
1. Permit fees, estimated restoration costs, and other management costs.
2. Prior obstruction or excavations.
3. Any undisputed loss, damage, or expense suffered by the city because of applicant's prior
excavations or obstructions of the rights -of -way or any emergency actions taken by the city.
4. Franchise fees or other charges, if applicable.
3. Payment of disputed amounts due the city by posting security or depositing in an escrow account an
amount equal to at least 110 percent of the amount owing.
4. 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.
Section 6. Issuance of Permit; Conditions.
1. Permit Issuance. If the applicant has satisfied the requirements of this Section, the City shall issue a
permit.
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2. Conditions. The City Engineer 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.
Section 7. Small Wireless Facility Permits.
1. Small Wireless Facility Conditions. In addition to Section 6.2, 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:
1. 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.
2. 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.
3. No wireless facility may extend more than 10 feet above its wireless support structure.
4. 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.
5. Where an applicant proposes collocation on a decorative wireless support structure, sign or other
structure not intended to support small wireless facilities, such equipment shall be consistent with
the City's aesthetic standards regarding wireless equipment as adopted by the City Engineer. Such
standards shall ensure that wireless equipment is installed with a stealth design and that equipment
does not detract from the character of the area in which it is installed. In addition, the City Engineer
shall adopt standards that ensure city assets can continue to effectively perform their intended
function. Standards shall be made available with the application required for a small cell permit.
6. 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.
7. A permit will be deemed void if the approved equipment is not installed within one (1) year of
issuance of the permit.
2. Small Wireless Facility Agreement. A small wireless facility shall only be collocated on a small wireless
support structure owned or controlled by the city, or any other city asset in the right-of-way, after the
applicant has executed a standard small wireless facility collocation agreement with the city. The standard
collocation agreement may require payment of the following:
1. Rent to collocate on the city structure.
2. Yearly fee for maintenance associated with the collocation.
3. A monthly fee for electrical service as follows:
1. A fee per radio node less than or equal to 100 maximum watts.
2. A fee per radio node over 100 maximum watts; or
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3. The actual costs of electricity, if the actual cost exceed the foregoing.
3. 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.
4. Action on Small Wireless Facility Permit Applications.
1. Deadline for Action. The city shall approve or deny a small wireless facility permit application
within 90 days after fling of such application or within any timeline established by state law. The
small wireless facility permit, and any associated building permit application, shall be deemed
approved if the city fails to approve or deny the application within the review periods established in
this section.
2. 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.
3. 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.
4. 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 applicant's 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.
Section 8. Permit Fees. The City Council establishes fees for permits and shall from time to time examine and
adjust as needed to conform to the City's actual costs of regulation, management, degradation, city engineering, and
make-ready or construction costs associated with collocation of small wireless facilities. Said fees shall be in the
City Fee Schedule as adopted by Ordinance.
1. 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 used in the franchise.
Section 9. Supplementary Applications.
1. Limitation on Area. A right-of-way permit is valid only for the area of the right-of-way specified in the
permit. No permittee may do any work outside the area specified in the permit, except as provided herein.
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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 (1) make application for a permit extension and pay any
additional fees required thereby, and (2) be granted a new permit or permit extension.
2. Limitation on Dates. A right-of-way permit is valid only for the dates specified in the permit. No permittee
may begin its work before the permit start date or, except as provided herein, continue working after the
end date. If a permittee does not finish the work by the permit end date, it must apply for a new permit for
the additional time it needs and receive the new permit or an extension of the old permit before working
after the end date of the previous permit. This supplementary application must be submitted before the
permit end date.
Section 10. Joint Applications.
1. Joint Application. Registrants may jointly apply for permits to excavate or obstruct the right-of-way at the
same place and time.
2. 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.
3. 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.
Section It. Other Obligations.
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 Minn. Stat. §§ 21613.01-.09 (Gopher One Call Excavation Notice
System) and Minn. R., Ch. 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.
2. Prohibited Work. Except in an emergency, and with the approval of the city, no right-of-way obstruction
or excavation may be done when seasonally prohibited or when conditions are unreasonable for such work.
3. Interference with ROW. A permittee shall not so obstruct a right-of-way that the natural free and clear
passage of water through the gutters or other waterways shall be interfered with. Private vehicles of those
doing work in the right-of-way may not be parked within or next to a permit area, unless parked in
conformance with city parking regulations. The loading or unloading of trucks must be done solely within
the defined permit area unless specifically authorized by the permit.
4. Trenchless Excavation. As a condition of all applicable permits, permittees employing trenchless
excavation methods, including but not limited to Horizontal Directional Drilling, shall follow all
requirements set forth in Minnesota Statutes, Section 216D and Minnesota Rules Chapter 7560, and shall
require potholing or open cutting over existing underground utilities before excavating, as determined by
the City.
Section 12. Denial of Permit. The City may deny a permit for failure to meet the requirements and conditions of
this ordinance 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. 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
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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.
Section 13. Installation Requirements. The excavation, backfilling, patching and restoration, and all other work
performed in the right-of-way shall be done in conformance with Minn. R. 7819.1100 and 7819.5000 and other
applicable local requirements, in so far as they are consistent with the Minn. Stat., §§ 237.162 and 237.163.
Installation of service laterals shall be performed in accordance with Minn. R., Ch. 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 17 of this ordinance.
Section 14. Right -of -Way Patching Restoration.
1. Timing. The work to be done under any 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 unseasonable or unreasonable under Section 17.
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.
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 having to correct the defective work.
2. Permittee Restoration. If the permittee restores the right-of-way itself, it shall at the time of
application for an excavation permit post a construction performance bond in accordance with the
provisions of Minnesota Rules 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.
3. Standards. The permittee shall perform patching and restoration according to the standards and with the
materials specified by the City and shall comply with Minnesota Rule 7819.1100.
4. Duty to correct defects. The permittee shall correct defects in patching, or restoration performed by
permittee or its agents. Permittee upon notification from the City Engineer, correct all restoration work to
the extent necessary, using the method require by the City Engineer. Said work shall be completed within
five (5) calendar days of the receipt of the notice from the City Engineer, 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 17.
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 Engineer or fails to satisfactorily and timely complete all restoration required by the
City Engineer, 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.
Section 15. Inspection.
1. Notice of Completion. When the work under and permit hereunder is completed, the permittee shall
furnish a completion certificate in accordance Minnesota Rules 7819.1300 or other as -built documentation
as deemed necessary by the City Engineer.
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2. Site Inspection. Permittee shall make the work -site available to City personnel and to all others as
authorized by law for inspection at all reasonable times during the execution of and upon completion of the
work.
3. Authority of City Engineer.
1. At the time of inspection, the City Engineer may order the immediate cessation of any work which
poses a serious threat to life, health, safety, or wellbeing of the public.
2. The 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 City Engineer that the violation has
been corrected. If such proof has not been presented within the required time, the City Engineer may
revoke the permit pursuant to Section 17.
3. 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 Engineer of the
accurate information as soon as this information is known.
Section 16. Work Done Without a Permit.
Emergency Situations. Each person with facilities in the right-of-way shall immediately notify the City of
any event regarding its facilities that it considers being an emergency. Excavator's notification to Gopher
State One Call regarding an emergency situation does not fulfill this requirement. The owner of the
facilities may proceed to take whatever actions are necessary to respond to the emergency. Within two (2)
business days after the occurrence of the emergency the owner shall apply for the necessary permits, pay
the fees associated therewith and fulfill the rest of the requirements necessary to bring itself into
compliance with this Section for the actions it took in response to the emergency.
If the City becomes aware of an emergency regarding facilities, the city will attempt to contact the local
representative of each facility owner affected, or potentially affected, by the emergency. In any event, the
City may take whatever action it deems necessary to respond to the emergency, the cost of which shall be
borne by the person whose facilities occasioned the emergency.
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 this code, deposit with
the City the fees necessary to correct any damage to the right-of-way and comply with all of the
requirements of this Section.
Section 17. Revocation of Permits.
1. Substantial Breach. The City reserves its right, as provided herein, to revoke any right-of-way permit,
without a 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:
1. The violation of any material provision of the right-of-way permit.
2. An envision or attempt to evade any material provision of the right-of-way permit, or the
perpetuation 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
Right -of -Way Ordinance No. 113 11
5. The failure to correct, in a timely manner, work that does not conform to a condition indicated on an
order issued pursuant to Section 15.
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 that City shall
make a written demand upon the permittee to remedy such violation. The demand shall state continued
violations might be cause for revocation of the permit. A substantial or revised conditions on the permit to
mitigate and remedy the breach.
3. Response to Notice of Breach. Within twenty-four (24) hours of receiving notification of the breach,
permittee shall provide the City with a plan, acceptable to the City, which will cure the breach.
Permittee's failure to so contact the City, or the permittee's failure to submit an acceptable plan, or
permittee's failure to reasonably implement the approved plan, shall be cause for immediate revocation of
the permit.
4. Reimbursement of City Costs. If a permit is revoked, the permittee shall also reimburse the City for the
City's reasonable costs, including restoration costs and the costs of collection and reasonable attorneys' fees
incurred in connection with such revocation.
Section 18. Mapping Data.
Information Required. Each 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 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 in a format consistent with the city's electronic mapping system, when practical or as a
condition imposed by the City Engineer. Failure to provide maps and drawings pursuant to this subsection
shall subject the permittee to the delay penalties established in accordance with Section 8 and may affect
the grant of any future permits for right-of-way excavation or obstruction.
2. Service Laterals. All permits issued for the installation or repair of service laterals, other than minor
repairs as defined in Minn. R. 7560.0150, subp. 2, shall require the permittee's use of appropriate means of
establishing the horizontal locations of installed service laterals and the service lateral vertical locations in
those cases where the City Engineer reasonably requires it. Permittees or their subcontractors shall submit
to the City Engineer evidence satisfactory to the City Engineer of the installed service lateral locations.
Compliance with this subdivision 2 and with applicable Gopher State One Call law and Minnesota Rules
governing service laterals installed after Dec. 31, 2005, shall be a condition of any city approval necessary
for:
1. (1) payments to contractors working on a public improvement project (including those under
Minnesota Statutes, Chapter 429); and
2. (2) City approval under development agreements or other subdivision or site plan approval under
Minn. Stat. ch. 462. The City Engineer 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.
Section 19. Location of Facilities; Undergrounding.
1. Purpose. Placement, location, and relocation of facilities must comply with the Act, with other applicable
law, with other applicable standards adopted by the city engineer, and with Minn. R. 7819.3100, 7819.5000,
and 7819.5100, to the extent the rules do not limit authority otherwise available to cities.
Right -of -Way Ordinance No. 113 12
2. Undergrounding of Facilities. Unless otherwise agreed in a franchise between the applicable right-of-way
user and the City, facilities places in the public right-of-way must be located, relocated, and maintained
underground pursuant to the terms and conditions of this section and in accordance with applicable
construction standards.
3. Undergrounding of New Facilities. A new facility or a permanent extension of facilities must be installed
and maintained underground when supplied to:
1. a new installation of buildings, sings, streetlights, or other structures.
2. a new subdivision of land; or
3. a new development containing new commercial or industrial buildings.
4. Undergrounding of Permanent, Relocated or Reconstructed Facilities. A permanent replacement,
relocation, or reconstruction of a facility of more than 300 feet must be located, and maintained
underground, with due regard for seasonal working conditions. For purposes of this section, reconstruction
means any substantial repair of or any improvement to existing facilities. Undergrounding is required
whether a replacement, relocation or reconstruction is initiated by the right-of-way user owning or
operating the facilities, or by the City in connection with (1) the present or future use by the City or other
local government unit of the right-of-way for a public project, (2) the public health or safety, or (3) the
safety and convenience of travel over the right-of-way.
5. Corridors. The City may assign specific corridors within the right-of-way, or any particular segment
thereof as may be necessary, for each type of facilities that is or, pursuant to current technology, the City
expects will someday be located within the right-of-way. All excavation, obstruction, or other permits
issued by the City involving the installation or replacement of facilities shall designate the proper corridor
for the facilities at issue. 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.
6. Limitation of Space. The City Engineer shall, to the extent possible, accommodate all existing and
potential users of the right-of-way. In doing so, the Administrator shall be guided by consideration of the
public interest, including 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.
7. Nuisance. One year after the passage of this Ordinance, 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.
Section 20. Retirement of Overhead Facilities. The City Council may determine whether it is in the public interest
that all facilities within the city, or within certain districts designated by the city, be permanently placed and
maintained underground by a date certain or target date, independently of undergrounding required pursuant to
Section 19 of this Ordinance. The decision to underground existing facilities must be preceded by a public hearing,
after notice published for two (2) consecutive weeks and written notice mailed to the utilities affected at least 30
days prior to the hearing. At the hearing, the City Council must consider, at a maximum, all of the issues stated in
17.2 below and make findings. Undergrounding of existing facilities may not take place until the City Council has,
after hearing and notice, adopted a plan in accordance with 20.3 below.
1. Public Hearings. A hearing must be open to the public and may be continued from time to time. At each
hearing, any person interested must be given an opportunity to be heard. The subject of the public hearings
Right -of -Way Ordinance No. 113 13
shall be the issue of whether Facilities in the right-of-way in the City, or located within a certain district,
shall all be located underground by a date certain. Hearings are not necessary for the undergrounding
required under Section 19 of this Ordinance.
2. Public Hearing Issues. The issues to be addressed at the public hearings include but are not limited to:
1. The costs and benefits to the public of requiring the undergrounding of all facilities in the right-of-
way.
2. The feasibility and cost of undergrounding all facilities by a date certain as determined by the City
Council and the affected unities.
3. The tariff requirements, procedure and rate design for recovery or intended recovery of incremental
costs for undergrounding by the utilities from ratepayers within the city.
4. Alternative financing options available if the city deems it in the public interest to require
undergrounding by a date certain and deems it appropriate to participate in the cost otherwise borne
by the ratepayers.
Upon completion of the hearing or hearings, the City Council must make written findings on whether it is
in the public interest to establish a plan under which all facilities will be underground, either Citywide or
within districts designated by the City.
3. Undergrounding Plan. If the City finds that it is in the public interest to underground all or substantially
all facilities in the public right of way, the City must establish a plan for such undergrounding. The plan for
undergrounding must include at least the following elements:
1. Timetable for the undergrounding.
2. Designation of districts for the undergrounding unless, undergrounding plan is Citywide.
3. Exceptions to the undergrounding requirement and procedure for establishing such expectations.
4. Procedures for the undergrounding process, including but not limited to coordination with City
projects and provisions to ensure compliance with nondiscrimination requirements under the law.
5. A financing plan for funding of the incremental costs if the city determines that it will finance some
of the undergrounding costs, and a determination and verification of the claimed additional costs to
undergrounding incurred by the utility.
6. Penalties or other remedies for failure to comply with the undergrounding.
Section 21. Damage to Other Facilities. When the City foes work in the right-of-way and finds it necessary to
maintain, support, or move facilities to protect its workers or its project, the City Engineer shall notify the local
representative as early as reasonably possible. The costs associated therewith will be billed to that facility owner and
must be paid within thirty (30) days from the date of billing. Each facility owner shall be responsible for the cost of
repairing any facilities in the right-of-way which it or its facilities damages. Each facility owner shall be responsible
for the cost of repairing any damage to the facilities of another caused during the City's response to an emergency
occasioned by that owner's facilities.
Section 22. Right-of-way Vacation. If the City vacated a right-of-way that contains facilities, the facility owner's
rights in the vacated right-of-way are governed by Minnesota Rules 7819.3200.
Section 23. Indemnification and Liability. By applying for and accepting a permit under this ordinance, a
permittee agrees to defend and indemnify the City in accordance with the provisions of Minnesota Rule 7819.1250.
Right -of -Way Ordinance No. 113 14
Section 24. Abandoned Facilities.
1. Discontinued Operations. A registrant who has determined to discontinue all or a portion of its operations
in the city must provide information satisfactory to the city that the registrant's obligations for its facilities
in the right-of-way under this ordinance have been lawfully assumed by another registrant.
2. 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.
Section 25. Appeal. A right-of-way user that: (1) has been denied registration; (2) has been denied a permit; (3) has
had permit revoked; (4) believes that the fees imposed are invalid; or (5) disputes a determination of the City
regarding Section 9 Subdivision 2 of this Ordinance, may have the denial, revocation, fee imposition, or decision
reviewed, upon written request, by the City Council. The City Council shall act on a timely written request at its
next regularly scheduled meeting. A decision by the City Council affirming the denial, revocation, or fee imposition
will be writing and supported by written findings establishing the reasonableness of the decision.
Section 26. Reservation of Regulatory and Police Powers. A permittee's rights are subject to the regulatory and
police powers of the City to adopt and enforce general ordinances necessary to protect the health, safety, and welfare
of the public.
Section 27. Severability. If any portion of this ordinance 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 ordinance precludes the city from requiring a
franchise agreement with the applicant, as allowed by law in addition to the requirements set forth herein.
Section 28. Effective Date. This Ordinance shall take effect and be in force from and after its passage and
publication.
Dated: February 18 , 2025
Gw&" Q�- swm4
Gretchen Artig-Swomley, Mayor
Melissa Lawrence, Acting City Clerk
Right -of -Way Ordinance No. 113 15
City of Gem Lake, Ramsey County, Minnesota
Right of Way (ROW)
Ordinance No. 113
This ordinance to administer and regulate the public right-of-way in the public interest and to provide for the
issuance and regulation of right-of-way permits, was originally enacted by the City on January 19, 2010, and
published on January 37, 2010. The City Council has made amendments to the Ordinance in keeping with changes
in State law and the wishes of the community. The following table indicates the original Ordinances and the said
amendments.
Ordinance
Description
Enactment
113
Ordinance adopted
January2010
113
Amendment adding and revising definitions, adding
February 2025
requirements regarding small wireless facilities,
moving fees to the Fee Schedule, and updating
processes and procedures.
Right -of -Way Ordinance No. 113 16