A. 
It is the purpose of this chapter to establish reasonable regulations, requirements, and restrictions regarding the use of Township rights-of-way in order to protect the health, safety and welfare of Township residents, those traveling on Township roads, and the general public. It is also the purpose of this chapter to protect the cumulative investment the public has made to construct, maintain, and improve the Township's roads by requiring those undertaking utility projects in and near the Township's rights-of-way to obtain a permit from the Township and to be responsible for restoring the rights-of-way directly or indirectly impacted by the project to at least the same or better condition they were in prior to the project. Finally, this chapter provides for the recovery by the Town of its actual expenses incurred related to such projects.
B. 
As the road authority for the Township's roads, the Town Board has the authority and responsibility to provide for safe and efficient local roadways and to establish ordinances governing the use and maintenance of Town roadways and public rights-of-way. This chapter is adopted consistent with that authority as well as the authority provided the Town Board pursuant to 1997 Session Laws, Chapter 123, M.S.A. §§ 237.16, 237.162, 237.163, 237.79, 237.81, and 238.086 (the "Act"), M.S.A. §§ 164.36 and 169.87, and the other laws governing applicable rights of the Township and users of the right-of-way. This chapter shall be interpreted consistent with those statutes as well as with Minnesota Rules, Parts 7819.0050 to 7819.9950, where possible. This chapter shall not be interpreted to limit the regulatory and police powers of the Township to adopt and enforce general ordinances necessary to protect the health, safety and welfare of the public.
[Amended 11-9-2022 by Ord. No. 2022-05]
Pursuant to the authority granted the Township under state and federal statutory, administrative and common law, the Township hereby elects, pursuant to M.S.A. § 237.163, Subdivision 2(b), to manage its rights-of-way within the Township.
For the purpose of this chapter, the following terms shall have the meanings given them in this section:
ABANDONED FACILITY
A facility no longer in service or physically disconnected from a portion of the operating facility, or from any other facility, that is in use or still carries service. A facility is not abandoned unless declared so by the right-of-way user.
APPLICANT
Any person requesting permission to excavate or obstruct a right-of-way.
COMMISSION
The Minnesota Public Utilities Commission.
CONSTRUCTION PERFORMANCE BOND
Any of the following forms of security provided at permittee's option:
A. 
Individual project bond;
B. 
Cash deposit;
C. 
Letter of credit, in a form acceptable to the Township;
D. 
Self-insurance, in a form acceptable to the Township; or
E. 
A blanket bond for projects within the Township, or other form of construction bond, for a time specified and in a form acceptable to the Township.
DEGRADATION
A decrease in the useful life of the right-of-way caused by excavation in or disturbance of the right-of-way, resulting in the need to reconstruct such right-of-way earlier than would be required if the excavation or disturbance did not occur.
DEGRADATION COST
Subject to Minnesota Rules, Part 7819.1100, means the cost to achieve a level of restoration as determined by the Township at the time the permit is issued, not to exceed the maximum restoration shown in Plates 1 to 13, set forth in Minnesota Rules, Parts 7819.9900 to 7819.9950.
DEGRADATION FEE
The estimated fee established at the time of permitting by the Township 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.
DELAY PENALTY
The penalty imposed as a result of unreasonable delays in right-of-way excavation, obstruction, patching, or restoration as established by permit.
EMERGENCY
A condition that:
A. 
Poses a danger to life or health or of a significant loss of property; or
B. 
Requires immediate repair or replacement of facilities in order to restore service to a customer.
EQUIPMENT
Any tangible asset used to install, repair, or maintain facilities in any right-of-way.
EXCAVATE
To dig into or in any way remove or physically disturb or penetrate any part of a right-of-way.
EXCAVATION PERMIT
The permit which, pursuant to this chapter, must be obtained before a person may excavate in a right-of-way. An excavation permit allows the holder to excavate that part of the right-of-way described in such permit.
EXCAVATION PERMIT FEE
Money paid to the Township by an applicant to cover the costs as provided in this chapter.
FACILITY or FACILITIES
Any tangible asset in the right-of-way required to provide utility service.
LOCAL REPRESENTATIVE
Local person or persons, or designee of such person or persons, authorized by an applicant to accept service and to make decisions for that registrant regarding all matters within the scope of this chapter.
MANAGEMENT COSTS
The actual costs the Township incurs in managing its rights-of-way, including such costs, if incurred, as those associated with: registering applicants; issuing, processing, and verifying right-of-way permit applications; inspecting job sites and restoration projects; maintaining, supporting, protecting, or moving user facilities during right-of-way work; determining the adequacy of right-of-way restoration; restoring work inadequately performed after providing notice and the opportunity to correct the work; and revoking right-of-way permits. Management costs do not include payment by a telecommunications right-of-way user for the use of the right-of-way, the fees and cost of litigation relating to the interpretation of Minnesota Session Laws 1997, Chapter 123, M.S.A. § 237.162 or 237.163, or any ordinance enacted under those sections, or the Township fees and costs related to appeals taken as provided in this chapter.
OBSTRUCT
To place any tangible object in a right-of-way so as to hinder free and open passage over that or any part of the right-of-way.
OBSTRUCTION PERMIT
The permit which, pursuant to this chapter, must be obtained before a person may obstruct a right-of-way, allowing the holder to hinder free and open passage over the specified portion of that right-of-way, for the duration specified therein.
OBSTRUCTION PERMIT FEE
Money paid to the Township by a permittee to cover the costs as provided in this chapter.
PATCH or PATCHING
A method of pavement replacement or roadway repair that is temporary in nature. A patch consists of the compaction of the subbase and aggregate base and 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 on roads the Town Board has scheduled to be overlaid within five years.
PAVEMENT
Any type of improved surface that is within the public right-of-way and that is paved or otherwise constructed with bituminous, concrete, aggregate, or gravel.
PERMIT
Has the meaning given "right-of-way permit" in M.S.A. § 237.162.
PERMITTEE
Any person to whom a permit to excavate or obstruct a right-of-way has been granted by the Township under this chapter.
PERSON
An individual or entity subject to the laws and rules of this state, however organized, whether public or private, whether domestic or foreign, whether for profit or nonprofit, and whether natural, corporate, or political.
RESTORATION COST
The amount of money paid to the Township by a permittee to achieve the level of restoration according to Plates 1 to 13 of Minnesota Public Utilities Commission rules.
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.
RIGHT-OF-WAY
The area on, below, or above a public road, highway, street, cartway, bicycle lane or public sidewalk in which the Township has an interest, including other publicly dedicated rights-of-way for travel purposes and utility easements of the Township. A right-of-way does not include the airwaves above a right-of-way with regard to cellular or other nonwire telecommunications or broadcast service.
RIGHT-OF-WAY PERMIT
Either the excavation permit or the obstruction permit, or both, depending on the context, required by this chapter.
RIGHT-OF-WAY USER
A. 
A telecommunications right-of-way user as defined by M.S.A. § 237.162, Subdivision 4; or
B. 
A person owning or controlling a facility in the right-of-way that is used or intended to be used for providing utility service, and who has a right under law, franchise, or ordinance to use the public right-of-way.
SERVICE 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.
SERVICE or UTILITY SERVICE
Includes:
A. 
Those services provided by a public utility as defined in M.S.A. § 216B.02, Subdivisions 4 and 6;
B. 
Services of a telecommunications right-of-way user, including transporting of voice or data information;
C. 
Services of a cable communications systems as defined in Minnesota Statutes, Chapter 238;
D. 
Services provided by a cooperative electric association organized under Minnesota Statutes, Chapter 308A; and
E. 
Water and sewer, including service laterals, steam, cooling or heating services.
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 transporting telecommunications or other voice or data information. For purposes of this chapter, a cable communications system defined and regulated under Minnesota Statutes, Chapter 238, and telecommunications activities related to providing natural gas or electric energy services, whether provided by a public utility as defined in M.S.A. § 216B.02, a municipality, a municipal gas or power agency organized under Minnesota Statutes, Chapters 453 and 453A, or a cooperative electric association organized under Minnesota Statutes, Chapter 308A, are not telecommunications right-of-way users for purposes of this chapter.
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 Township's two-year plan, in which case it is considered full restoration.
TOWN BOARD
The Board of Supervisors of Eureka Township, Dakota County, Minnesota.
TOWNSHIP
Geographical boundaries of Eureka Township, Dakota County, Minnesota.
TOWNSHIP REPRESENTATIVE
A Township Supervisor or other person designated by the Town Board to conduct inspections or to otherwise oversee work done within rights-of-way, whether such work is done by permit or otherwise.
TRENCH
An excavation in the traveled surface of a road, with the excavation having a length equal to or greater than the width of the traveled surface.
A. 
Permit required. Except as otherwise provided in this chapter, no person may obstruct or excavate any right-of-way without first having obtained the appropriate right-of-way permit from the Township to do so.
(1) 
Excavation permit. An excavation permit is required to excavate within a right-of-way related to the installation, repair, replacement, or removal of facilities.
(2) 
Obstruction permit. An obstruction permit is required to obstruct a 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) 
Combination permit. If a proposed utility project involves both the excavation and obstruction of a right-of-way, a person may apply for a combination excavation/obstruction permit.
B. 
Exclusions. The Township, its agents, and contractors performing work for the Township shall not be required to obtain permits from the Township to excavate or obstruct a right-of-way. Contractors performing work for the Township shall be required to erect and maintain such signs and other traffic control devices as are necessary to warn of the work and to protect public safety.
C. 
Permit extensions. No person may excavate or obstruct the right-of-way beyond the date or dates specified in the permit unless:
(1) 
Such person makes a supplementary application for another right-of-way permit before the expiration of the initial permit; and
(2) 
A new permit or permit extension is granted.
D. 
Delay penalty. In accordance with Minnesota Rules, Part 7819.1000, Subpart 3, the Township may establish and impose a delay penalty for unreasonable delays in right-of-way excavation, obstruction, patching, or restoration.
E. 
Permit display. Permits issued under this chapter shall be conspicuously displayed or otherwise available at all times at the indicated work site and shall be available for inspection by the Township.
Application for a permit is made to the Township. Right-of-way permit applications shall contain, and will be considered complete only upon compliance with, the requirements of the following provisions:
A. 
Submission of a completed permit application form, including all required attachments, and scaled drawings showing the location and area of the proposed project and the location of all known existing and proposed facilities.
B. 
Payment of money due the Township for:
(1) 
Permit fees, estimated restoration costs and other management costs;
(2) 
Any outstanding amounts related to prior obstructions or excavations;
(3) 
Any undisputed loss, damage, or expense suffered by the Township because of applicant's prior excavations or obstructions of the rights-of-way or any emergency actions taken by the Township; and
(4) 
Franchise fees or other charges, if applicable.
C. 
Payment of disputed amounts due the Township by posting security or depositing in an escrow account an amount equal to at least one 110% of the amount owing.
D. 
Posting an additional or larger construction performance bond for additional facilities when applicant requests an excavation permit to install additional facilities and the Township deems the existing construction performance bond inadequate under applicable standards.
A. 
Permit issuance. If the applicant has satisfied the requirements of this chapter, the Township shall issue a permit.
B. 
Conditions. The Township 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.
A. 
Excavation permit fee. The Township shall establish an excavation permit fee in an amount sufficient to recover the following costs:
(1) 
The Township management costs.
(2) 
Degradation costs, if applicable.
B. 
Obstruction permit fee. The Township shall establish the obstruction permit fee which shall be in an amount sufficient to recover the Township management costs.
C. 
Payment of permit fees. No excavation permit or obstruction permit shall be issued without payment of excavation or obstruction permit fees. The Township may allow applicant to pay such fees within 30 days of billing.
D. 
Nonrefundable. Permit fees that were paid for a permit that the Township has revoked for a breach as provided in this chapter are not refundable.
E. 
Fees. All fees provided for in this chapter shall be determined by Town Board and shall be designed to recover the actual costs the Township incurs related to the particular project and in managing its rights-of-way.
A. 
Timing. The work to be done under the excavation permit, and the patching and restoration of the right-of-way as required herein, must be completed within the dates specified in the permit, increased by as many days as work could not be done because of circumstances beyond the control of the permittee or when work was prohibited due to unseasonal or other weather conditions which reasonably prohibit the work.
B. 
Patch and restoration. Permittee shall patch its own work. The Township may choose either to have the permittee restore the right-of-way or to restore the right-of-way itself.
(1) 
Township restoration. If the Township restores the right-of-way, permittee shall pay the costs thereof within 30 days of billing. If, following such restoration, the roadway settles due to permittee's improper backfilling, the permittee shall pay to the Township, within 30 days of billing, all costs associated with correcting the defective work.
(2) 
Permittee restoration. If the permittee restores the right-of-way itself, it shall at the time of application for an excavation permit post a construction performance bond in accordance with the provisions of Minnesota Rules, Part 7819.3000.
(3) 
Degradation fee in lieu of restoration. In lieu of right-of-way restoration, a right-of-way user may elect to pay a degradation fee. However, the right-of-way user shall remain responsible for patching, and the degradation fee shall not include the cost to accomplish these responsibilities.
C. 
Standards. The permittee shall perform excavation, backfilling, patching and restoration according to the standards and with the materials specified by the Township and shall comply with Minnesota Rules, Part 7819.1100.
D. 
Duty to correct defects. The permittee shall correct defects in patching or restoration performed by permittee or its agents. The permittee upon notification from the Township shall correct all restoration work to the extent necessary, using the method required by the Township. Said work shall be completed within five calendar days of the receipt of the notice from the Township, not including days during which work cannot be done because of circumstances constituting force majeure or days when work is prohibited by unreasonable weather conditions.
E. 
Failure to restore. If the permittee fails to restore the right-of-way in the manner and to the condition required by the Township, or fails to satisfactorily and timely complete all restoration required by the Township, the Township at its option may do such work. In that event, the permittee shall pay to the Township, within 30 days of billing, the cost of restoring the right-of-way. If permittee fails to pay as required, the Township may immediately exercise its rights under the construction performance bond.
A. 
Limitation on area. A right-of-way permit is valid only for the area of the right-of-way specified in the permit. No permittee may do any work outside the area specified in the permit, except as provided herein. Any permittee which determines that an area greater than that specified in the permit must be obstructed or excavated must before working in that greater area:
(1) 
Make application for a permit extension and pay any additional fees required thereby; and
(2) 
Be granted a new permit or permit extension.
B. 
Limitation on dates. A right-of-way permit is valid only for the dates specified in the permit. No permittee may begin its work before the permit start date or, except as provided herein, continue working after the end date. If a permittee does not finish the work by the permit end date, it must apply for a new permit for the additional time it needs, and receive the new permit or an extension of the old permit before working after the end date of the previous permit. This supplementary application must be submitted before the permit end date.
A. 
Compliance with other laws. Obtaining a right-of-way permit does not relieve permittee of its duty to obtain all other necessary permits, licenses, and authority and to pay all fees required by the Township or other applicable rule, law or ordinances. A permittee shall comply with all requirements of local, state and federal laws, including but not limited to M.S.A. §§ 216D.01 to 216D.09 (Gopher One Call Excavation Notice System) and Minnesota Rules, Chapter 7560. A permittee shall perform all work in conformance with all applicable codes and established rules and ordinances, and is responsible for all work done in the right-of-way pursuant to its permit, regardless of who does the work.
B. 
Prohibited work. Except in an emergency, and with the approval of the Township, no right-of-way obstruction or excavation may be done when seasonally prohibited or when conditions are unreasonable for such work.
C. 
Interference with right-of-way. A permittee shall not so obstruct a right-of-way that the natural free and clear passage of water through the gutters or other waterways shall be interfered with. Private vehicles of those doing work in the right-of-way may not be parked within or next to a permit area, unless parked in conformance with Township parking ordinances. The loading or unloading of trucks must be done solely within the defined permit area unless specifically authorized by the permit.
D. 
Trenchless excavation. As a condition of all applicable permits, a permittee employing trenchless excavation methods, including, but not limited to, horizontal directional drilling, shall follow all requirements set forth in Minnesota Statutes, Chapter 216D, and Minnesota Rules, Chapter 7560, and shall require potholing or open cutting over existing underground utilities before excavating, as determined by the Township.
The Township may deny a permit for failure to meet the requirements and conditions of this chapter if the Township determines that the denial is necessary to protect the health, safety, and welfare, or if the Township determines such denial is necessary to protect the right-of-way and its current use.
The excavation, backfilling, patching and restoration, and all other work performed in the right-of-way shall be done in conformance with Minnesota Rules, Parts 7819.1100 and 7819.5000 and other applicable local requirements, insofar as they are not inconsistent with M.S.A. §  237.162 and 237.163. Installation of service laterals shall be performed in accordance with Minnesota Rules, Chapter 7560, and this chapter.
A. 
Notice of completion. When the work under any permit hereunder is completed, the permittee shall furnish a completion certificate in accordance Minnesota Rules, Part 7819.1300.
B. 
Site inspection. Permittee shall make the work site available to the Township and to all others as authorized by law for inspection at all reasonable times during the execution of and upon completion of the work.
C. 
Authority of Township representative.
(1) 
At the time of inspection, the Township representative may order the immediate cessation of any work which poses a serious threat to the life, health, safety or well-being of the public.
(2) 
The Township representative 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 10 days after issuance of the order, the permittee shall present proof to the Township representative that the violation has been corrected. If such proof has not been presented within the required time, the Township representative may revoke the permit as provided herein.
A. 
Emergency situations. Each right-of-way user shall immediately notify the Township representative of any event regarding its facilities that it considers to be an emergency. The right-of-way user may proceed to take whatever actions are necessary to respond to the emergency. Excavators' notification to Gopher State One Call regarding an emergency situation does not fulfill this requirement. Within two business days after the occurrence of the emergency, the right-of-way user shall apply for the necessary permits, pay the fees associated therewith, and fulfill the rest of the requirements necessary to bring itself into compliance with this chapter for the actions it took in response to the emergency.
B. 
Nonemergency situations. Except in an emergency, any person who, without first having obtained the necessary permit, obstructs or excavates a right-of-way must subsequently obtain a permit and, as a penalty, pay double the normal fee for said permit, pay double all the other fees required by the Township, deposit with the Township the fees necessary to correct any damage to the right-of-way, and comply with all of the requirements of this chapter.
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 Township of the accurate information as soon as this information is known.
A. 
Substantial breach. The Township reserves its right, as provided herein, to revoke any right-of-way permit without a fee refund, if there is a substantial breach of the terms and conditions of any statute, ordinance, or rule, 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 evasion or attempt to evade any material provision of the right-of-way permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the Township or its citizens;
(3) 
Any material misrepresentation of fact in the application for a right-of-way permit;
(4) 
The failure to complete the work in a timely manner, unless a permit extension is obtained or unless the failure to complete work is due to reasons beyond the permittee's control; or
(5) 
The failure to correct, in a timely manner, work that does not conform to a condition indicated on an order issued by a Township representative.
B. 
Written notice of breach. If the Township determines that the permittee has committed a substantial breach of a term or condition of any statute, ordinance, or rule or any condition of the permit, the Township shall make a written demand upon the permittee to remedy such violation. The demand shall state that continued violations may be cause for revocation of the permit. A substantial breach, as stated above, will allow the Township, at its discretion, to place additional or revised conditions on the permit to mitigate and remedy the breach.
C. 
Response to notice of breach. Within 24 hours of receiving notification of the breach, permittee shall provide the Township with a plan, acceptable to the Township, that will cure the breach. Permittee's failure to so contact the Township, or permittee's failure to timely submit an acceptable plan, or permittee's failure to reasonably implement the approved plan, shall be cause for immediate revocation of the permit.
D. 
Reimbursement of Township costs. If a permit is revoked, the permittee shall also reimburse the Township for the Township's reasonable costs, including restoration costs and the costs of collection and reasonable attorneys' fees incurred in connection with such revocation.
Placement, location, and relocation of facilities must comply with the Act, with other applicable law, and with Minnesota Rules, Parts 7819.3100, 7819.5000 and 7819.5100, to the extent the rules do not limit authority otherwise available to townships.
If the Township vacates a right-of-way that contains the facilities installed pursuant to a permit issued by the Township, the rights of the owner of the installed facilities in the vacated right-of-way are governed by Minnesota Rules, Part 7819.3200.
A. 
Discontinued operations. A right-of-way user who has determined to discontinue all or a portion of its operations in the Township must provide information satisfactory to the Township that the right-of-way user's obligations for its facilities in the right-of-way under this chapter have been lawfully assumed by another person.
B. 
Removal. Any right-of-way user who has abandoned facilities in any right-of-way shall remove them 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 Township.
A right-of-way user that has been denied a permit; has had a permit revoked; believes that the fees imposed are not in conformity with M.S.A. § 237.163, Subdivision 6; or disputes a determination of the Township representative regarding compliance with this chapter or of permit conditions may have the denial, revocation, fee imposition, or decision reviewed, upon written request, by the Town Board. The Town Board shall act on a timely written request at its next regularly scheduled meeting, provided the right-of-way user has submitted its appeal with sufficient time to include the appeal as a regular agenda item. A decision by the Town Board affirming the denial, revocation, or fee imposition will be in writing and supported by written findings establishing the reasonableness of the decision.