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HomeMy WebLinkAboutOrdinance - 12-2016 - Amending City Code Chapter 6, Related to Right-of-Way - 06/23/2016 CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA ORDINANCE NO. 12-2016 AN ORDINANCE OF THE CITY OF EDEN PRAIRIE, MINNESOTA, AMENDING CITY CODE CHAPTER 6 RELATING TO RIGHT-OF-WAY PERMITS; AND ADOPTING BY REFERENCE CITY CODE CHAPTER 1 AND SECTION 6.99 WHICH, AMONG OTHER THINGS, CONTAIN PENALTY PROVISIONS. THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE,MINNESOTA, ORDAINS: Section 1. City Code Chapter 6, Sections 6.01, 6.02, and 6.03 are hereby amended by deleting Sections 6.01, 6.02, and 6.03 in their entirety and replacing them with the following: SECTION 6.01. DEFINITIONS. Except as otherwise defined in the City Code or where the context clearly indicates a contrary intent, the words and terms defined in Minnesota Statutes Chapter 169, Minnesota Statutes Chapter 237, and Minnesota Administrative Rules Chapter 7819, all as amended from time to time, shall be applicable to City Code Chapters 5, 6, 7 and 8. Wherever reference is made to an individual or position in this Chapter, it shall mean the individual or person or his/her designee. The following words, terms and phrases, as used herein, have the following meanings unless the context clearly indicates otherwise: Subd. 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; or a facility that is declared abandoned by the right-of-way user. Subd. 2. "Applicant" - any person requesting permission from the City to excavate or obstruct a right-of-way. Subd. 3. "Commercial Wireless Telecommunication Facility" - a tangible asset used to provide commercial wireless telecommunication services as defined in City Code Section 11.02, including all antennas, support devices, and telecommunications mechanical equipment including ground-mounted equipment, associated cables, and attachments. Subd. 4. "Delay Penalty" - the monetary penalty imposed by the City as a result of unreasonable delays in permitted work within the right-of-way, including but not limited to construction, excavation, obstruction, patching, or restoration. Subd. 5. "Director" -the City's Director of Public Works or his or her designee. Subd. 6. "Emergency" - a condition that poses a clear and immediate danger to life or health; may result in a significant loss of property; or requires immediate repair or replacement in order to restore service to a customer. Subd. 7. "Equipment" - any tangible asset located within the right-of-way that is used in the process of construction, installation, repair, or maintenance. Subd. 8. "Excavate" - to dig into or in any way remove, physically disturb, or penetrate any part of a public right-of-way. Subd. 9. "Facility" or "Facilities" - any tangible asset(s) in the right-of-way required to provide utility service. The term does not include facilities to the extent the location and relocation of such facilities are preempted by Minnesota Statutes Section 161.45 governing utility facility placement in state trunk highways. Subd. 10. "Ground-Mounted Equipment" — equipment used in the operation of commercial wireless telecommunication facilities that is located on the ground and protrudes above the surface elevation of the ground. Subd. 11. "High Density Corridor" - a designated portion of the public right- of-way within which telecommunications right-of-way users having multiple and competing facilities may be required to build and install facilities in a common conduit system or other common structure. Subd. 12. "Local Guide Specifications and Standard Details" - the following rules and regulations of the City: General Conditions to the Standard Specifications for Construction; Standard Detail Specifications for Sanitary and Storm Sewer Systems; Standard Detail Specifications for Watermain Systems; Standard Detail Specifications for Sanitary and Storm Sewer and Watermain Systems Excavation, Installation and Non-Pavement Restoration Procedures; and Standard Detail Specifications for Street Construction, Walkways, and Pavement Restoration. Subd. 13. "Obstruct" - to place any tangible object upon a public right-of-way so as to hinder free and open passage over that or any part of the right-of-way. Subd. 14. "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, with the same grade of material, of the existing pavement for a minimum of two feet beyond the edges of the excavation in all directions. Subd. 15. "Pavement' - any type of improved surface that is within the public right-of-way and that is paved or otherwise constructed with paver blocks, bituminous, concrete, aggregate, or gravel. Subd. 16. "Permit Holder" - any person to whom a permit to excavate or obstruct a right-of-way has been granted by the City. Subd. 17. "Person" - all firms, partnerships, associations, limited liability companies, corporations, and natural persons. Subd. 18. "Potholing" - excavating the area above an underground facility to determine the precise location of the underground facility without damage to it, before excavating within two feet of the marked location of the underground facility. Subd. 19. "Public Right-of-Way" - the area on, below, or above a public roadway, highway, street, cartway, bicycle lane, trail, and public sidewalk in which the City has an interest, including other dedicated rights-of-way for travel purposes and utility easements of the City. Subd. 20. "Public Utility Structure" — a structure or pole supporting wires for communication or transmission of data, electricity, roadway lighting, or commercial wireless telecommunication facilities. Subd. 21. "Restore" or "Restoration" - the process by which the right-of-way and surrounding area, including pavement, foundation, surfacing, and ground vegetation are returned to the same condition and life expectancy that existed before excavation. Subd. 22. "Right-of-Way Permit" — a permit to perform work in a public right- of-way, whether to excavate or obstruct the right-of-way. Subd. 23. "Right-of-Way User" — (1) a telecommunications right-of-way user; or (2) a person owning or controlling a facility in the public right-of-way that is used or is intended to be used for providing utility service, and who has a right under law, franchise, or ordinance to use the public right-of-way. Subd. 24. "Service" or "Utility Service" - includes (1) services provided by a public utility as defined in Minnesota Statutes section 216B.02, subdivisions 4 and 6; (2) services of a telecommunications right-of-way user, including the transporting of voice or data information; (3) services provided by a cable communications system as defined in Minnesota Statutes, Chapter 238; (4) natural gas or electric energy or telecommunications services provided by a local government unit; (5) services provided by a cooperative electric association organized under Minnesota Statutes, Chapter 308A; (6) water, sewer, steam, cooling, or heating services; (7) pipeline, community antenna television, fire and alarm communications, electricity, light, energy, or power services; (8) the services provided by a public service corporation organized pursuant to Minnesota Statutes, Chapter 301B; and (9) the services provided by a district heating or cooling system. Subd. 25. "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. Subd. 26. "Telecommunications Right-of-Way User" — a person owning or controlling a facility in the public right-of-way, or seeking to own or control a facility in the public right-of-way, that is used or intended to be used for transporting telecommunications or other voice or data information. Subd. 27. "Trench" - an excavation in the right-of-way having a length equal to or greater than the width of the right-of-way for the sections of roadway where the work is occurring, including a directional bore. SECTION 6.02. APPLICATION AND SCOPE. Except as otherwise stated therein, the provisions of Chapters 5, 6, 7, and 8 are applicable to all users of the streets, public ways, rights-of-way and roadways within the City, including but not limited to those owned or operated by the United States, the State of Minnesota, or any county, town, city, district, or other political subdivision located wholly or partially within the corporate limits of the City. SECTION 6.03. RIGHT-OF-WAY PERMITS. Subd. 1. Permit Required. Except as otherwise provided in the City Code, no person may temporarily or permanently obstruct or excavate any public right-of-way without first having obtained a right-of-way permit from the City. Subd. 2. Permit Applications. A. A written application for a right-of-way permit shall be submitted to the Public Works Department at least two weeks prior to the anticipated project start date. The application shall be made on a form provided by the City and shall include all required attachments, a scaled drawing showing the location and area of the proposed project and the location of all proposed facilities, a traffic control plan, a restoration plan, a timeline for the proposed project, and, if requested by the Director, a scaled drawing showing the location of all known existing facilities and a public notification plan. All such applications shall be consistent with the provisions of this Chapter and good engineering, safety, and maintenance practices shall be followed for the work or activity conducted under the right-of- way permit. B. The application shall require the applicant to defend, indemnify and hold the City harmless from all liability or claims of liability for bodily injury or death to persons, or for property damage, for those claims specified in Minnesota Rule 7819.1250, subpart 2. C. If the City has suffered any undisputed loss, damage, or expense because of the applicant's prior excavations or obstructions of the public right-of-way or any emergency actions relating thereto, the Director may require the applicant to reimburse the City for such expense before considering a new permit application for approval. D. Before granting any permit under any of the provisions of this Chapter, the Director may impose such insurance, bonding, letter of credit, cash deposit, or other financial security requirements thereon as deemed necessary to properly safeguard persons or property exposed to the work or activity. Such insurance shall also protect the City and its employees from any suit, action or cause of action arising by reason of such work or activity. E. If requested by the Director, an applicant for a right-of-way permit shall provide mapping information in accordance with Minnesota Rules 7819.4000 and 7819.4100. Subd. 3. Issuance of Permit and Conditions. Upon the Director's determination that the applicant has satisfied the requirements of this Section, the Director shall issue the right-of-way permit subject to the terms and conditions of this Chapter. The Director may impose reasonable conditions upon the issuance of the right-of-way permit and the performance of the permit holder to protect the health, safety, and welfare or when necessary to protect the right-of-way and its current use. In addition, a permit holder shall comply with all requirements of local guide specifications and standard details as well as all local, state and federal laws, including but not limited to Minnesota Statutes Chapter 216D and Minnesota Rules Chapter 7560 (Gopher One Call Excavation Notice System). Subd. 4. Permit Fees. The City shall establish a right-of-way permit fee in an amount sufficient to recover City costs. The City shall impose the permit fee at the time it issues a right-of-way permit. The City, in its sole discretion, may require payment of the permit fee: (1) at the time of permit issuance; (2)within thirty (30) days of billing; or (3) through an annual billing. Failure to pay permit fees when due may result in suspension or revocation of a right-of-way permit. Permit fees paid for a permit that has been revoked by the Director are not refundable. Unless otherwise agreed to in a franchise agreement, permit fees may be charged separately from and in addition to the franchise fees imposed on a right-of-way user in the franchise agreement. Subd. 5. Permit Display. Right-of-way 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 Director. Subd. 6. Permit Extensions. A right-of-way permit is valid only for the area of the public right-of-way specified in the permit and for the dates specified in the permit. No permit holder may do any work outside of the area specified in the permit or begin its work before the permit start date or continue working after the permit end date. Any permit holder desiring to obstruct or excavate an area greater than that specified in the permit or desiring to perform work on dates not specified in the permit shall apply for a new or extended right-of-way permit and pay any additional fees required by the City. The permit holder shall obtain the new or extended permit before performing any work not allowed by the original permit. Subd. 7. Denial of Permit. The City may deny a right-of-way permit for failure to meet the requirements and conditions of this Section or if the City determines that the denial is necessary to protect the health, safety, and welfare of the public or when necessary to protect the right-of-way and its current use. Subd. 8. Standards for Construction or Installation. A. General Standards. Excavation, backfilling, patching, restoration, and all other work performed in the right-of-way must be done in conformance with all applicable Minnesota Statutes and Administrative Rules, including without limitation Rules 7819.5000 and 7819.5100, all requirements of the City Code, and local guide specifications and standard details that are consistent with Minnesota Statutes Sections 237.162 and 237.163. Installation of service laterals must be performed in accordance with Minnesota Rules Chapter 7560 and the City Code. The permit holder shall comply with the following additional standards when performing the work authorized under the right-of-way permit: 1. Take such precautions as are necessary to avoid creating unsanitary conditions. 2. Conduct the operations and perform the work in a manner that insures the least obstruction to and interference with traffic. 3. Take adequate precautions to insure the safety of the general public and those who require access to abutting property. 4. Notify adjoining property owners prior to commencement of work which may disrupt the use of and access to such adjoining properties. 5. Comply with the Minnesota Manual of Uniform Traffic Control Devices at all times during construction or installation. 6. Exercise caution at all times for the protection of persons, including employees, and property. 7. Protect and identify excavations and work operations with barricade flags and, if required, by a flag person in the daytime and by warning lights at night. 8. Provide proper trench protection as required by the Occupational Safety and Health Administration in order to prevent cave-ins endangering life. 9. Protect the root growth of trees and shrubbery. 10. If possible, provide for space in the installation area for other right-of-way users. 11. Maintain access to all properties and cross streets as possible during construction and installation and maintain emergency vehicle access at all times. 12. Maintain alignment and grade unless otherwise authorized by the City. Changes not approved by the City will require removal and reconstruction. 13. During plowing or trenching of facilities, a warning tape must be placed at a depth of twelve (12) inches above copper cables with over two hundred (200) pairs and above fiber facilities. 14. Below concrete or bituminous paved road surfaces, directional bore facilities must be installed in conduit of a type determined by the permit holder. 15. The placing of all facilities must comply with the National Electric Safety Code, as incorporated by reference in Minnesota Statutes section 326B.35. 16. At the direction of the Director, facilities being installed or relocated within a high density corridor shall be placed in a common conduit system or share other common structures. 17. A Minnesota licensed surveyor shall be used to locate property lines, install property pins, and replace any destroyed property pins at corners. 18. 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. 19. Excavations, trenches, and jacking pits shall be protected when unattended to prevent entrance of surface drainage. 20. All backfilling must be placed in six inch (6") layers at optimum moisture and compacted with the objective of attaining ninety-five percent (95%) of Standard Proctor. Compaction shall be accomplished with hand, pneumatic, or vibrating compactors as appropriate. 21. Backfill material shall be subject to the approval of the Director. The Director may permit backfilling with the material from the excavation provided such material is acceptable to the Director. 22. Compacted backfill shall be brought to bottom of the aggregate base of the approved street section. 23. All work performed in the right-of-way shall be done in conformance with local guide specifications and standard details, unless a less stringent standard is approved by the Director. 24. Street and pedestrian traffic shall be maintained throughout construction unless provided otherwise by the permit. 25. No lugs damaging to roadway surfaces may be used. 26. Dirt or debris must be periodically removed during construction, which may require the use of a mechanical sweeper. 27. Above-ground utility markers may not be installed except as authorized by the Director. 28. Other reasonable standards and requirements of the Director. B. Standards for Installation of Underground Utilities. The permit holder shall comply with the following standards when installing facilities underground: 1. Buried fiber facilities shall be at a minimum depth of three (3) feet and a maximum depth of four (4) feet unless an alternate location is approved in advance by the Director. Buried copper facilities below concrete or bituminous paved road surfaces must be placed at a minimum depth of three (3) feet and a maximum depth of four (4) feet. Other buried copper facilities must be placed at a minimum depth of thirty (30) inches and a maximum depth of four(4) feet. 2. Crossing of streets and hard surfaced driveways shall be directional bored unless otherwise approved by the Director. 3. If construction is open cut, the permit holder must install the visual tracers within twelve (12) inches and over buried facilities. If other construction methods are used, substitute location methods will be considered. 4. The permit holder shall register with Gopher State One Call and comply with the requirements of that system. 5. Compaction in a trench shall be ninety-five percent (95%) of Standard Proctor and copies of test results must be submitted to the Director. Tests will be required at the discretion of the Director. Tests must be conducted by an independent testing firm at locations approved by the Director. The Director may require recompaction and new tests if densities are not met. 6. The facilities shall be located so as to avoid traffic signals and signs, which are generally placed a minimum of three (3) feet behind the curb. 7. When utilizing trenchless installation methods to cross an area in which a municipal utility is located, and when directed by the City, the permit holder shall excavate an observation hole over the utility to ensure that the City utility is not damaged. 8. All junction boxes or access points shall be located no closer than ten (10) feet from City hydrants, valves, manholes, lift stations, or catch basins unless an alternate location is approved by the City. 9. Underground facilities shall not be installed between a hydrant and an auxiliary valve. 10. Buried telecommunications facilities must have a locating wire or conductive shield, except for di-electric cables. 11. Buried fiber facilities must be placed in a conduit of a type determined by the right-of-way user unless the permit holder obtains a waiver from the City. C. Standards for Installation of Overhead Facilities. The permit holder shall comply with the following standards when installing facilities overhead: 1. All wires shall be a minimum of eighteen (18) feet above paved surfaces and at a location that does not interfere with traffic signals, overhead signs, or street lights. 2. Facilities shall be co-located on poles where possible. 3. Placing overhead facilities on both sides of the right-of-way is prohibited unless specifically approved by the Director. D. Trenchless Excavation. A permit holder 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 employ potholing or open cutting over existing underground utilities before excavating as determined by the City. E. Location of Facilities. 1. Location. Placement, location, and relocation of facilities must comply with local guide specifications and standard details and other applicable laws, and with Minnesota Rules 7819.3100, 7819.5000, and 7819.5100. 2. Corridors. The City may assign specific corridors within the right-of- way, or any particular segment thereof, for each type of facility that is or, pursuant to current technology, the City expects will someday be located within the right-of-way. All right-of-way permits issued by the City involving the installation or replacement of facilities shall designate the proper corridor for the facilities at issue. Facilities being installed or relocated within a high density corridor shall be placed in a common conduit system or share other common structures. 3. Limitation of Space. To protect the health, safety, and welfare of the public or when necessary to protect the right-of-way and its current use, the Director shall have the power to prohibit or limit the placement of new or additional facilities within the right-of-way. The Director shall strive 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. F. Standards for Commercial Wireless Telecommunication Facilities. 1. Purpose and Findings. The City desires high quality commercial wireless telecommunication services to accommodate the needs of residents and businesses. At the same time, the City strives to minimize the negative impacts that commercial wireless telecommunication facilities can have on aesthetics and public safety. Due to the many services that must be delivered within its limited area, the City also strives to avoid unnecessary encumbrances within the public right-of-way. The City allows and regulates commercial wireless telecommunication facilities through performance standards and height limits as prescribed in Chapter 11, Section 11.06. The purpose of this section is to regulate the installation of commercial wireless telecommunication facilities within the public right-of-way in a manner that balances desire for service with aesthetic, public safety, and right-of-way flexibility concerns. Public rights-of-way are appropriate locations for commercial wireless telecommunication facilities that present minimal impacts (i.e. small tower attachments that do not require new poles, do not require pole extensions, and do not have associated ground-mounted equipment). Commercial wireless telecommunication facilities that require greater heights than can be afforded by existing poles in the public right-of-way and those that require ground-mounted equipment are more appropriately sited outside of the public right-of-way in accordance with the performance standards contained in Chapter 11. The City recognizes that, as wireless technology advances, some residential areas of the City may be hard to serve with wireless technology due to the lack of siting alternatives in the immediate vicinity. In such areas, where no alternative non-right-of-way locations are available, commercial wireless telecommunication facilities that require pole extensions and ground-mounted equipment will be allowed in the public right-of-way subject to the requirements of this Section, which are meant to protect the public health, safety, and welfare. 2. Commercial Wireless Telecommunication Facilities as Attachments to Existing Public Utility Structures. Commercial wireless telecommunication facilities that comply with the following requirements may be attached to existing public utility structures within the right-of- way after issuance of a right-of-way permit: (a) The commercial wireless telecommunication facility shall not extend above the top of the existing public utility structure and the height of the existing public utility structure shall not be increased to accommodate the commercial wireless telecommunication facility. (b) If the public utility structure must be replaced to structurally accommodate the commercial wireless telecommunication facility, the height of the replacement public utility structure shall not exceed the height of the existing public utility structure and the diameter of the replacement public utility structures shall not exceed the diameter of the existing public utility structure by more than 50 percent. Once the diameter of a replacement public utility structure has been increased under the provisions of this paragraph, the diameter shall not be further increased. (c) Excluding electrical meter and mounting hardware, the commercial wireless telecommunication facility shall not have an aggregate volume greater than seven (7) cubic feet and no one device shall have a volume greater than three (3) cubic feet. (d) The commercial wireless telecommunication facility shall not have any individual surface area face greater than three (3) square feet except that an individual face of a cylindrical device shall not exceed ten (10) square feet. (e) The commercial wireless telecommunication facility shall not extend outward from the existing public utility structure or arm thereof by more than eighteen (18) inches, except that an antenna one-half(1/2) inch or less in diameter may extend an additional six (6) inches. (f) The commercial wireless telecommunication facility shall include no ground-mounted equipment within the right-of-way. (g) The commercial wireless telecommunication facility shall have limited exposed cabling and mounting hardware. It shall also match the public utility structure it is attached to in color and, as close as practicable, in material and design. (h) The City may refuse to allow commercial wireless telecommunication facilities to be attached to decorative public utility facilities. (i) The commercial wireless telecommunication facility shall not interfere with public safety wireless telecommunications. (j) Commercial wireless telecommunication facilities in the right-of- way shall be removed and relocated at the City's request and at no cost to the City when the Director determines that removal and relocation is necessary to prevent interference with: (1) present or future City use 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. (k) A commercial wireless telecommunication facility attached to an existing public utility structure shall not block light emanating from the public utility structure and shall not otherwise interfere with the original use of the public utility structure. (1) A telecommunications right-of-way user who desires to place commercial wireless telecommunication facilities on City-owned public utility structures shall enter into a license agreement with the City, upon terms and conditions required by the City, for use of space. 3. Commercial Wireless Telecommunication Facilities as Extensions to Existing Public Utility Structures or with Ground-Mounted Equipment. Commercial wireless telecommunication facilities that require increased public utility structure height or that have ground- mounted equipment may be erected in the public right-of-way only when in compliance with the following provisions and after issuance of a right- of-way permit: (a) The applicant shall demonstrate to the satisfaction of the Director that the commercial wireless telecommunication facility cannot be placed in a location outside of the right-of-way within one quarter (1/4) mile of the proposed location. (b) The extension to the existing public utility structure, including lightning rods and all other attachments, shall not exceed the height of the existing public utility structure by more than fifteen (15) feet. Once the height of a public utility structure has been increased under the provisions of this paragraph, the height shall not be further increased. (c) The extension to the existing public utility structure shall not increase the diameter of the public utility structure by more than fifty (50) percent. Once the diameter of a public utility structure has been increased under the provisions of this paragraph, the diameter shall not be further increased. (d) Excluding electrical meter and mounting hardware, the commercial wireless telecommunication facility shall not have an aggregate volume greater than seven (7) cubic feet and no one device shall have a volume greater than three (3) cubic feet. (e) The commercial wireless telecommunication facility shall not have any individual surface area face greater than three (3) square feet except that an individual face of a cylindrical device shall not exceed ten(10) square feet. (f) The commercial wireless telecommunication facility shall not extend horizontally from the existing public utility structure or arm thereof by more than eighteen (18) inches, except that an antenna one-half(1/2) inch or less in diameter may extend an additional six (6) inches, and shall not extend vertically from the top of the public utility structure by more than thirty-six (36) inches. (g) The extension to the existing public utility structure shall match the original and surrounding public utility structures in materials and color, as determined by the Director. (h) The commercial wireless telecommunication facility shall not interfere with public safety wireless telecommunications. (i) The commercial wireless telecommunication facility should have limited exposed cabling and mounting hardware. It shall also match the public utility structure it is attached to in color and, as close as practicable, in material and design. (j) The City may refuse to allow commercial wireless telecommunication facilities to be attached to decorative public utility structures. (k) A right-of-way permit for a commercial wireless telecommunication facility that has ground-mounted equipment will be issued only if the City finds the following: (i) the ground-mounted equipment will not disrupt traffic or pedestrian circulation; (ii) the ground-mounted equipment will not interfere with vehicle and pedestrian intersection sight lines; (iii) the ground-mounted equipment will not create a safety hazard; (iv) the location of the ground-mounted equipment minimizes impacts on adjacent property; and (v) the ground-mounted equipment will not adversely impact the health, safety, or welfare of the community. (1) Ground-mounted equipment associated with the commercial wireless telecommunication facility shall comply with the provisions of Code Section 11.06, subdivision 9, and shall also meet the following performance standards: (i) be separated from the nearest ground-mounted wireless telecommunication equipment installation on the same block face by a minimum of 330 feet unless the equipment is placed underground, or unless waived by the Director; (ii) if located adjacent to residential uses, ground-mounted equipment shall be limited to three (3) feet in height above grade and twenty-seven (27) cubic feet in cumulative size; and (iii) if located adjacent to non-residential uses, ground-mounted equipment shall be limited to five (5) feet in height above grade and eighty-one (81) cubic feet in cumulative size. (m) Commercial wireless telecommunication facilities in the right-of- way shall be removed and relocated at the City's request and at no cost to the City when the Director determines that removal and relocation is necessary to prevent interference with: (1) present or future City use 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. (n) A telecommunications right-of-way user who desires to place commercial wireless telecommunication facilities on City-owned public utility structures shall enter into a license agreement with the City, upon terms and conditions required by the City, for use of space. 4. New Structures. The erection in the public right-of-way of a new public utility structure to support commercial wireless telecommunication facilities is prohibited, except where the Director determines there is a need for additional roadway lighting, emergency warning siren, or other public infrastructure that must be supported by a public utility structure. Any new public utility structure erected to support commercial wireless telecommunication facilities allowed by the City under this paragraph and any associated or attached equipment must comply with the requirements of this Section. 5. Charges. In addition to the permit fees outlined in this Chapter, the City reserves the right to charge telecommunications right-of-way users to the extent that such charges are allowed under state law. Telecommunications right-of-way users shall be responsible for payment of real or property taxes attributable to their equipment in the public right-of-way. Subd. 9. Compliance with Chapter 11. In addition to the requirements of this Section, persons placing facilities in the public right-of-way shall comply with all applicable permitting and other requirements imposed under Chapter I of this Code. Where the provisions of this Section are more restrictive than the provisions of Chapter 11, the provisions of this Section shall apply. Subd. 10. Restoration of Right-of-Way. The permit holder shall patch and restore the right-of-way to the satisfaction of the Director. A. Timing. All work to be done under the right-of-way permit and all required patching and restoration of the right-of-way must be completed within the dates specified in the right-of-way permit. B. Duty to correct defects. The permit holder shall correct any defects in patching or restoration performed by the permit holder or its agents. Upon notification from the Director, the permit holder shall correct all such defects as required by the Director. Correction work shall be completed within five (5) calendar days of the receipt of the notice from the Director, not including days during which work cannot be done because of circumstances constituting force majeure. C. Failure to restore. If the permit holder fails to restore the right-of-way in the manner and to the condition required by the Director, or fails to satisfactorily and timely complete all restoration required by the Director, the City may complete the restoration. The permit holder shall reimburse the City for its reasonable costs incurred in completing the restoration and shall pay any delay penalty and/or degradation fee imposed by the City within thirty (30) days of invoice from the City. If a permit holder fails to pay as required, the City may deny future right-of- way permit applications. Subd. 11. Delay Fee. The City may establish and impose a delay fee for unreasonable delays in right-of-way excavation, obstruction, patching, or restoration, or for work not completed prior to right-of-way permit expiration. The delay fee and associated fees shall be established from time to time by City Council resolution. No delay fee shall be imposed if the delay is due to circumstances beyond the control of the permit holder, including without limitation inclement weather, acts of God, or civil strife. Subd. 12. Inspection. A. Notice of Completion. When the work under any right-of-way permit is completed, the permit holder shall furnish a completion certificate and as-built drawings in accordance with Minnesota Rule 7819.1300 if requested by the Director. B. Site Inspection. The permit holder shall make the work site available for inspection by the Director or other City personnel and to all others authorized by law at all times during the execution of and upon completion of the work. C. Authority of Director. 1. The Director may order the immediate cessation of any work which the Director determines, in the Director's sole discretion, poses a serious threat to the life, health, safety, or well-being of the public. 2. The Director may issue an order to the permit holder requiring the correction of any work that does not conform to the terms of the right-of- way permit or other applicable laws, standards, conditions, or codes. The order shall inform the permit holder that failure to correct the violation may result in revocation of the right-of-way permit. If the permit holder does not correct the violation to the satisfaction of the Director within ten (10) days after issuance of the order, the Director may revoke the right-of- way permit. Subd. 13. Work Done Without a Permit. Except as provided in this subdivision 13, any person who obstructs or excavates the public right-of-way without a right-of-way permit issued by the City shall be guilty of a misdemeanor as provided in Chapter 1 and in Section 6.99 of this Chapter. A. Emergency Situations. A right-of-way user shall immediately notify the City of any event concerning its facilities that it considers to be an emergency and may take any actions reasonable and necessary to respond to the emergency. Within two (2) business days after the occurrence of the emergency, the right-of-way user shall apply to the City for the necessary right-of-way permit(s), pay the fees associated therewith, and fulfill the rest of the requirements necessary to bring itself into compliance with this Chapter for the actions it took in response to the emergency. If the City becomes aware of an emergency concerning facilities in the right-of- way, the City will make reasonable attempts to contact the owner of each facility affected, or potentially affected, by the emergency. In any event, the City may take whatever action it deems necessary to respond to the emergency. If the emergency was caused by a facility or facilities, the owner thereof shall reimburse the City for its costs in responding to the emergency. B. Non-Emergency Situations. Except in an emergency, any person who obstructs or excavates a public right-of-way without first having obtained a right-of-way permit must subsequently obtain a right-of-way permit. The fee for a subsequently issued right-of-way permit shall be established from time to time by City Council resolution. The permit holder shall also pay 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 other requirements of this Chapter. Subd. 14. Damage to Other Facilities. A. When the City performs work in the right-of-way that requires the alteration or relocation of an existing facility, the Director shall notify the facility owner as soon as is reasonably possible. The facility owner shall reimburse the City for its costs associated with such alteration or relocation within thirty (30) days from the date of billing. B. Each facility owner shall be responsible for the cost of repairing any facilities in the right-of-way which it or its facilities damage. 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 caused by that owner's facilities. Subd. 15. Revocation of Permits. A. Substantial Breach. The City may revoke any right-of-way permit if the permit holder substantially breaches any of the terms and conditions of any applicable statute, ordinance, rule or regulation, or any condition of the right-of-way permit. A substantial breach includes, but is not limited to, the following: 1. The violation of any material provision of the right-of-way permit; 2. The attempt to evade any material provision of the right-of-way permit or the perpetration or attempt to perpetrate any fraud or deceit upon the City or its citizens; 3. Any material misrepresentation of fact in the permit application; 4. The failure to complete the work in a timely manner unless a permit extension has been obtained or unless the failure to complete work is due to reasons beyond the permit holder's control; or 5. The failure to timely correct work that is the subject of an order issued by the Director under subdivision 12.0 of this section. B. Written Notice of Breach. If the Director determines that the permit holder has committed a substantial breach of a term or condition of any statute, ordinance, rule, regulation, or any condition of the right-of-way permit, the Director may notify the permit holder of the breach in writing and demand that the permit holder remedy the violation. The notice and demand shall inform the permit holder that continued violations may result in revocation of the right-of-way permit. In the notice and demand, the Director may also impose additional or revised conditions on the right-of-way permit to mitigate and remedy the breach. C. Response to Notice of Breach. Within two (2) business days of receiving the written notice and demand, the permit holder shall provide the City with its plan to cure the breach. Any failure to respond to the notice, to submit an acceptable plan, or to implement the approved plan shall be grounds for immediate revocation of the right-of-way permit. D. Reimbursement of City Costs. Upon revocation of a right-of-way permit, the permit holder shall reimburse the City for its reasonable costs incurred because of the revocation, including but not limited to restoration costs, collection costs, and attorney fees. Subd. 16. Exemptions. The following persons are exempt from the requirements of this Section: A. City employees acting within the course and scope of their employment and contractors acting within the course and scope of a contract with the City; B. Persons who install mailboxes in the public right-of-way in accordance with requirements of the U.S. Postal Service; C. Persons who temporarily place residential household refuse containers in the public right-of-way for the collection of solid waste or recyclables in accordance with the provisions of Sections 5.36 and 9.01 of the City Code. Subd. 17. Right-of-Way Vacation. If the City vacates a public right-of-way that contains facilities, the facility owner's rights in the vacated right-of-way are governed by Minnesota Rule 7819.3200. Subd. 18. Abandoned Facilities. A right-of-way user shall notify the City when facilities are to be abandoned. A right-of-way user who has abandoned facilities in a public right-of-way shall remove them from the right-of-way if required in conjunction with other right-of-way repair, excavation, or construction, unless the Director waives this requirement. Subd. 19. Non-Completion or Abandonment of Work. Work shall progress expeditiously to completion in accordance with any time limitation specified in the right- of-way permit so as to avoid unnecessary inconvenience to the public. In the event that the permit holder fails to timely complete the work in accordance with the terms of the right-of-way permit or ceases or abandons the work without due cause, the City may, after six (6) hours' notice in writing to the permit holder of its intention to do so, correct the work, fill the excavation and repair the public right-of-way in a manner that it deems necessary to protect the safety and welfare of the public. The City shall make or contract for all temporary and permanent repairs, including but not limited to backfilling, compacting, and resurfacing, and the permit holder shall reimburse the City for all costs incurred for such work. If the permit holder fails to reimburse the City within thirty (30) days of billing, the City may do any or all of the following: (1) reimburse itself from the proceeds from any cash deposit, letter of credit, bond, or other security given by the permit holder; (2) deny the permit holder any future right-of-way permits; and (3) impose a delay penalty. Subd. 20. Right-of-Way Prohibitions. The following actions are prohibited in the public right-of-way: A. Dumping in Streets. It is a misdemeanor for any person to throw or deposit in any public right-of-way any solid, recyclable, or yard waste, including but not limited to nails, dirt, glass, cans, discarded cloth or clothing, construction debris, metal scraps, garbage, leaves, grass or tree limbs, paper or paper products, shreds or rubbish, oil, grease, petroleum products or other automotive fluids or to empty any water containing salt or other injurious chemical thereon. It is a violation of this Section to haul any such material inadequately enclosed or covered thereby permitting the same to fall upon the street. B. Fires. It is a misdemeanor for any person to build or maintain a fire upon a public right-of-way. C. Signs. It is a misdemeanor for any person to place or maintain a sign within any public right-of-way except as otherwise permitted by City Code Section 11.70, subdivision 3.1). D. Placing Snow or Ice in a Public Right-of-Way. It is a misdemeanor for any person not acting under a specific contract with the City or without written permission from the Director to remove snow or ice from private property or a private driveway and cause the same to obstruct, encroach upon, encumber, or interfere wholly or partially with any public right-of-way, including but not limited to a public roadway, street, sidewalk, walkway, bike or trail way, easement, park, or other public property. Where permission is not granted by the Director, the City may remove the snow or ice from the public right-of-way and the person shall be initially responsible for payment of all direct and indirect costs of removing the snow or ice from the street. If not paid within thirty (30) days of invoice, collection shall be by civil action or assessment against the property as any other special assessment. E. Each day that any person continues in violation of this subdivision 20 shall be a separate offense and punishable as such. Subd. 21. Indemnification and Liability. By applying for and accepting a right-of-way permit under this section, a permit holder agrees to defend and indemnify the City in accordance with the provisions of Minnesota Rule 7819.1250. Subd. 22. Appeal. A right-of-way user or potential right-of-way user that has been denied a right-of-way permit or has had a right-of-way permit revoked may appeal the denial or revocation to the City Manager. Such appeal shall be taken by filing with the City Clerk within ten (10) days after the denial or revocation, a written statement requesting a hearing before the City Manager and setting forth fully the grounds for the appeal. A hearing shall be held within fifteen (15) days of receipt of the request. Notice of the hearing shall be given by the City Clerk in writing, setting forth the time and place of hearing. Such notice shall be mailed, postage prepaid, to the applicant or permit holder at his/her/its last known address at least five (5) days prior to the date set for hearing. Subd. 24. Reservation of Regulatory and Police Powers. A permit holder'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 2. City Code Chapter 6, Sections 6.05, 6.06, and 6.07 are hereby deleted in their entirety. Section 3. City Code Chapter 1 entitled "General Provisions and Definitions Applicable to the Entire City Code Including Penalty for Violation" and Section 6.99 entitled "Violation a Misdemeanor or Petty Misdemeanor" are hereby adopted in their entirety, by reference, as though repeated verbatim herein. Section 4. This ordinance shall become effective from and after its passage and publication. FIRST READ at a regular meeting of the City Council for the City of Eden Prairie on the 20 day of May, 2016, and finally read and adopted and ordered published at a regular meeting of the City Council of said City on the 10 day of June, 2016. .� iiym— ' Kat en Porta, City Clerk a Ty uke ay PUBLISHED in the Eden Prairie News on the 23`d day of June, 2016. CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA SUMMARY OF ORDINANCE NO. 12-2016 AN ORDINANCE OF THE CITY OF EDEN PRAIRIE, MINNESOTA, AMENDING CITY CODE CHAPTER 6 RELATING TO RIGHT-OF-WAY PERMITS; AND ADOPTING BY REFERENCE CITY CODE CHAPTER 1 AND SECTION 6.99 WHICH, AMONG OTHER THINGS, CONTAIN PENALTY PROVISIONS. The following is only a summary of Ordinance No. 12-2016. The full text is available for public inspection by any person during regular office hours at the Office of the City Clerk. SUMMARY: The Ordinance deletes and replaces City Code Sections 6.01, 6.02, and 6.03 relating to definitions and permit requirements for obstruction or excavation of the public right- of-way; deletes City Code Sections 6.05, 6.06, and 6.07; and incorporates, by reference, City Code Chapter 1 and City Code Section 6.99, which contain provisions relating to penalties. The new Section 6.01 contains expanded definitions relating to obstruction or excavation of the public right-of-way. The new Section 6.03 contains detailed requirements relating to right-of- way permits, including provisions related to permit application, issuance, denial, revocation, and appeal; permit fees; standards for construction, excavation, and installation of underground and overhead facilities; location of facilities; standards for commercial wireless telecommunication facilities; restoration of the right-of-way; City inspection; exemptions; right-of-way vacation; abandonment of facilities; and prohibition of certain actions in public right-of-way. EFFECTIVE DATE. This Ordinance shall take effect upon publication. ATTEST: Kathle Porta, City Clerk Nan y,T,5e-LXenW-Mayo PUBLISHED in the Eden Prairie News on June 23, 2016.