[Ord. No. 3244, 7-17-2023]
A.
This Division is enacted to define the authority of the City and
its officers and employees with regard to public ownership, control
and management of its right-of-way. The right-of-way is a valuable
public resource that has required and will continue to require substantial
public investment and is intended to be used by the public in travel
and utilities when such use does not inconvenience the public.
1.
Declaration Of Findings And Intent. The City of Chesterfield
finds that the public streets, alleys, easements and other right-of-way
within the City:
a.
Are critical to the travel and transport of persons and property
in the business and social life of the City and in the conduct of
the health, education and commerce of its residents;
b.
Are intended for appropriately regulated public and private
uses and must be managed and controlled consistent with that intent;
c.
Can be partially occupied by the facilities of utilities and
other public service entities delivering utility and public services
rendered for profit, to the enhancement of the health, welfare, and
general economic well-being of the City and its residents;
d.
Are a unique and physically limited resource requiring proper
management to maximize the efficiency and to minimize the costs to
the taxpayers of the foregoing uses and to minimize the inconvenience
to and negative effects upon the public from such facilities'
construction, placement, relocation, and maintenance in the right-of-way;
e.
Are assets of the City that taxpayers have spent millions of
dollars to improve and maintain, and that when utility and similar
companies and other users of the right-of-way excavate and otherwise
disturb the right-of-way, the City must repave, repair and at times
reconstruct the right-of-way;
f.
Passage of a right-of-way ordinance to deal in a competitively
neutral fashion with telecommunications and other utility providers
will have a beneficial effect on all the residents and users of the
right-of-way as competition among utilities and telecommunications
providers within the City continues to increase due to changes in
technology, modifications in Federal and State law, and increased
demand for such services by City residents, businesses, educational
institutions, governmental officers and other public and private institutions.
2.
The City finds that the conditional right to occupy portions
of the right-of-way for the business of providing telecommunications
services or utility services is a valuable economic right to use a
unique public resource that has been acquired and is maintained at
great expense to City and its taxpayers, and the economic benefit
of such right should be shared with all the taxpayers of City.
3.
The City finds that while telecommunications and fiber optic
facilities are in part an extension of interstate commerce, their
operations also involve right-of-way, municipal franchising, and vital
business and community service, which are of local concern.
4.
The City finds that it is in the best interest of its residents
to promote the rapid, but safe, development of telecommunications,
fiber optic and utility facilities responsive to community and public
interest, to assure that telecommunications and utility companies
provide adequate, economical and efficient service to their subscribers,
and to assure availability for municipal services, educational and
community services while not compromising the public's right
to use of the right-of-way for travel.
5.
The City finds that it is in the interest of the public to establish
standards for all users of the right-of-way not covered by a specific
franchise agreement regardless of type of service being, provided
that:
a.
Establish the fees to be paid and actual expenses of the City
for reimbursement;
b.
Encourages competition by establishing terms and conditions
under which users may use valuable public property to serve the public
while creating and maintaining a level playing field among similarly
situated participants;
c.
Fully protects the public, other right-of-way users and the
City from any harm that may arise from such private commercial use
of right-of-way while providing for innovative uses of technology;
d.
Protects the authority of the City, in a manner consistent with
Federal and State law;
e.
Otherwise protects the public interests in the development and
use of City infrastructure, including recognizing that disturbance
of the right-of-way and infrastructure therein for utility and facility
deployment impacts the right-of-way in a different and greater manner
than other users both private and public;
f.
Minimizes physical disruption of the right-of-way for other
users, the City, and travelers while maintaining aesthetic quality
throughout the City while also recognizing the right of abutting landowners.
6.
This Division shall apply to all users of the right-of-way engaged
in any activities defined in, regulated by, or requiring a permit
pursuant to this Division.
7.
This Division and its application is in addition to all other
City Codes, provisions of this Division and any other manuals, guidelines,
or supplements as adopted, approved, maintained and modified from
time to time by the Director of Public Works.
[Ord. No. 3244, 7-17-2023]
A.
Required. Except in case of municipal work authorized by the Director
of Public Works, no person or entity shall make any opening or excavation
or place any object in the right-of-way, which is not otherwise permitted
to be placed in the right-of-way, without a written special use permit
from the Director of Public Works.
B.
Work Requiring Permit Authorization. All work which results in a
physical disturbance of the public right-of-way shall require permit
authorization. This requirement shall include, but not be limited
to, all excavations and installations relating to conduit, poles,
pole lines, wires, mains, pipes, valves, conductors, sewers, drains,
driveways, sidewalks or appurtenances thereof.
1.
Registration. A special use permit shall only be issued to applicants
who have registered as right-of-way users with the Director of Public
Works and provided such information as required by the Director of
Public Works.
a.
All current users of the public right-of-way must register within
ninety (90) days of the effective date of this Section.
b.
Any person who is not a user of the public right-of-way prior
to the effective date of this Section and who wishes to become a user
of the public right-of-way must first register with the City.
c.
No user of the public right-of-way shall be authorized to use
the right-of-way in any capacity or manner without registering with
the City and obtaining a special use permit from the Director of Public
Works.
d.
In order to register as a right-of-way user the following will
be required. The Public Works Director shall have the authority to
require additional information at his/her discretion:
e.
The user of the public right-of-way shall be responsible for
all costs incurred by the City due to the failure to provide any information
to the City required for registration or for any information which
is incomplete or inaccurate.
f.
The Director of Public Works may, at the Director of Public
Works' discretion, waive registration for work done by or on
behalf of property owners adjacent to the right-of-way (i.e., residential
driveway replacement). The Director of Public Works has the authority
to create a policy, including a list of activities that do not require
a permit for work in the right-of-way.
C.
Other Work. Work which does not result in a physical disturbance
of the public right-of-way and does not interrupt traffic shall not
require permit authorization. Examples of this type of work shall
include the opening and/or inspection of manholes, maintenance of
lighting fixtures, the sealing of driveway aprons, etc.
D.
Record. The Director of Public Works shall keep a full and complete
account of all permits issued showing the date of issuance, the person
to whom the permit was issued and the location of proposed work.
E.
Permit Issuance. Any person having occasion to make any excavation within the right-of-way shall make written application for a permit from the Director of Public Works who is given authority to issue such permits. The application shall state the location and nature of the proposed work, when the work is to commence, and shall include a traffic control plan. No permit shall be issued for a period in excess of ninety (90) days unless the permit is for new installation, facility replacement, or major facility repair as detailed in Subsection (H) below.
F.
Emergency Work. In cases where timely or emergency work within the
public right-of-way is required, the agency responsible for the emergency
work shall complete all necessary work in a timely manner. All precautions
shall be taken to ensure the area is safe and signed in accordance
with the Manual of Uniform Traffic Control Devices (MUTCD). This work
must be followed by a permit application within seven (7) days of
beginning work in the right-of-way. In cases where the public safety
or welfare is endangered the agency responsible for the facility within
the right-of-way shall contact the Public Works Department during
regular business hours or the Police Department at other times.
G.
Permit Review. The Director of Public Works shall review each permit request and in cases where all requirements are met shall issue a written permit with a number and expiration date. It shall be the duty of any permittee to maintain a copy of the permit at the site of the work being performed. It shall be unlawful for any person to perform work without a permit [except as authorized in Subsection (F) above], to perform work outside the scope of the permit, or to exceed or misrepresent the location, limits, or expiration of a permit.
H.
Major Projects. Any person performing a new installation, facility
replacement, or major repair [in excess of ninety (90) days required]
which results in a physical disturbance of the public right-of-way
shall, in addition to all other permit requirements, provide written
notice to all property owners within two hundred (200) feet of the
site where work is being performed at least seven (7) days prior to
any work beginning. Notice shall be in a form approved by the Director
of Public Works.
1.
The notice described above shall require any person performing
work which results in a physical disturbance of the public right-of-way
to have a designated contact person available to answer calls from
residents between the hours of 9:00 A.M. and 5:00 P.M. Monday through
Sunday, beginning with the date notice is sent and ending seven (7)
days following completion of installation, repair, replacement, or
other disturbance occurring in the right-of-way.
2.
The notice described above shall require the person performing
work which results in a physical disturbance of the public right-of-way
to take such other action as directed by the Director of Public Works
to provide notice to all property owners within two hundred (200)
feet of the site depending on the size, scope, and/or duration of
the disturbance of the right-of-way, including, but not limited to,
providing door hanger notice or other forms of contact with property
owners within two hundred (200) feet of the site.
I.
Notice. Except as contained within Subsection (F) above no construction work shall commence within any public right-of-way, nor shall any street, curb or sidewalk within any public right-of-way be cut without at least forty-eight (48) hours' notice to the Director of Public Works of intention to commence work.
[Ord. No. 3244, 7-17-2023]
Except as provided in this Division, or as otherwise required
by law, no permit or registration may be transferred without the written
consent of the Director of Public Works. Any person not named on a
valid permit or registration, including any affiliates or successors
in interest to a registered user of the public right-of-way, must
register and/or obtain a permit in accordance with this Division or
receive written authorization to transfer the permit or registration.
Written authorization to transfer a permit or registration shall be
granted according to the same standards for issuing the same. The
Director of Public Works shall not unreasonably withhold its consent
to transfer as provided herein. This Section shall not prohibit the
use of subcontractors so long as the user of the public right-of-way
provides reasonable supervision of the subcontractor(s), provides
notice in the permit application of their intent to use subcontractor(s),
and secures the agreement of all subcontractor(s) to be bound by the
terms of this Division and the terms of the permit issued by the Director
of Public Works.
[Ord. No. 3244, 7-17-2023]
A.
The applicant shall accompany the permit application with the required
fee, escrow or surety, and insurance as required below.
1.
Fee. All applications for a special use permit shall require
a fee, in an amount determined by the Director of Public Works, for
the estimated costs of performing the necessary project management,
administration, and inspections related to the special use permit.
Said fee is non-refundable, but may be increased if the scope of work
is increased form the original application.
a.
The Director of Public Works shall implement a standardized
table of values to assist in determining the required fee, but in
no case shall the Director of Public Works be required to use the
fee amounts specified by such a table. Any such table created by the
Director of Public Works will be made available to users of the public
right-of-way.
b.
The exclusive remedy for a special use permit applicant who
wishes to challenge the amount of the fee shall be to make an appeal
to the City Administrator within ten (10) business days of the final
decision of the Director of Public Works.
2.
Escrows. Permittee shall provide the City a cash escrow in an
amount equal to that which would be required to ensure the restoration
and maintenance of the City right-of-way within the scope of the project.
Said escrow amount shall be set by the Director of Public Works. Any
portion of the escrow not expended or retained by the City shall be
refunded without interest not less than one (1) year after the restoration
is completed and approved by the City.
a.
The Director of Public Works shall implement a standardized
table of values to assist in determining the required escrow amount,
but in no case shall the Director of Public Works be required to use
the escrow amounts specified by such a table. Any such table created
by the Director of Public Works will be made available to users of
the public right-of-way.
b.
The exclusive remedy for a special use permit applicant who
wishes to challenge the amount of the escrow shall be to make an appeal
to the City Administrator within ten (10) business days of the final
decision of the Director of Public Works.
3.
Surety. In lieu of a cash escrow, a registered right-of-way
user may provide a surety bond to cover all its work within the public
right-of-way. Such a surety bond shall be issued in an amount approved
by the Director of Public Works, but not less than twenty-five thousand
dollars ($25,000.00). The surety bond shall be provided in a form
approved by the City Attorney.
4.
Violations. In the case where the Director of Public Works determines
users of the public right-of-way previously violated the subject and
provisions of this Section or any policy, procedure, or agreement
related thereto, the amount of any fee, escrow or surety required
may be increased in each case at the discretion of the Director of
Public Works.
5.
Repair. If the applicant fails to restore the right-of-way in satisfactory form, the City shall use the escrow or surety for the purpose of employing others to restore the pavement and surface and the applicant shall be liable to the City for any cost in excess of the amount of the escrow or surety actually expended by the City to restore the same. The use of a surety or escrow to restore the right-of-way shall be done in accordance with the provisions of Section 505.100. If the escrow or surety is more than needed to restore the surface, the City shall retain out of the excess the City's fee for arranging and supervising the restoration and refund the balance, if any, to the applicant. If the escrow or surety is not sufficient to pay the cost of restoration and the liquidated damages hereinafter provided, the applicant shall be liable for the difference.
6.
Condition. As a prerequisite to the issuance of a special use
permit, the applicant shall agree, in writing, to be bound by the
terms of this Division and to such conditions as may be prescribed
by the Director of Public Works as to traffic control measures, the
time within which the excavation is to be filled and the surface restored
and for notice thereof, and to repair as required during the one-year
period allowed herein. If the surface is not restored within the time
established, the applicant shall pay the sum of one hundred dollars
($100.00) per day as liquidated damages and not as a penalty, to be
deducted from the escrow or surety, if sufficient.
7.
Insurance.
a.
The user of the public right-of-way and their subcontractors
shall procure and maintain insurance of the types and minimum amounts
during the life of the special use permit as follows:
(1)
Workers' compensation in full compliance with
statutory requirements of Federal and State of Missouri law and employers'
liability coverage in the minimum amount of five hundred thousand
dollars ($500,000.00) for E.L. - each accident, five hundred thousand
dollars ($500,000.00) disease - policy limit, five hundred thousand
dollars ($500,000.00) disease - each employee.
(2)
Comprehensive general liability and bodily injury:
b.
The owner's protective policy shall name the City as the
insured. Certificates evidencing such insurance shall be furnished
to the City prior to issuance of the permit.
c.
If the ROW user is self-insured, it shall provide the City proof
of compliance regarding its ability to self-insure and proof of its
ability to provide coverage in the above amounts.
[Ord. No. 3244, 7-17-2023]
A.
All users of the right-of-way and their subcontractors operating
under the provisions of this Division or performing any temporary
traffic control, excavation or work in the right-of-way shall fully
indemnify, release, defend and hold harmless the City, officers, elected
officials, employees and agents of the City from and against any and
all claims, demands, suits, proceedings, and actions, liability and
judgment by other persons for damages, losses, costs, and expenses,
including attorney fees, to the extent caused by acts or omissions
of the person, or its agents, contractors, or subcontractors, in the
performance of the permitted temporary traffic control, excavation
or work. In no event shall the requirements of this Division and more
specifically any provision dealing with indemnification be construed
as a waiver of any sovereign or other immunity available to the City,
its offers, employees or agents.
B.
Nothing herein shall be deemed to prevent the City, or any agent,
from participating in the defense of any litigation by their own counsel
at their own expense. Such participation shall not under any circumstances
relieve the person from its duty to defend against liability or its
duty to pay any judgment entered against the City, or its agents.
C.
All right-of-way users shall be responsible for promptly correcting
acts or omissions by any contractor or subcontractor performing permitted
temporary traffic control, excavation or work for such right-of-way
user hereunder.
D.
Any person operating under the provisions of this Division or performing
any excavation or work in the right-of-way shall be liable for any
damages to facilities due to excavation or work performed by the person,
including damage to underground facilities.
[Ord. No. 3244, 7-17-2023]
A.
Inspection. The Director of Public Works may cause a qualified inspector
to be present during the construction of any work within the right-of-way,
such as street, sidewalk, curb, or driveway entrance, and the Director
of Public Works or the inspector on the site shall have authority
to reject any material not meeting the standards specified by the
Director of Public Works. If any portion of the restoration work fails
to meet the minimum requirements, the Director of Public Works or
his/her designated inspector on the site shall cause all work within
the right-of-way to be stopped until the unsatisfactory conditions
are remedied.
B.
Protection Of Watercourses. All watercourses and inlets shall be
protected as detailed in the City's Sediment and Erosion Control
Manual. The permittee shall not obstruct the gutter of any street
and shall use proper measures to allow for the free passage of stormwater.
The permittee shall address all surplus water, mud, silt, slickness,
or other stormwater-related condition within the construction limits
throughout the duration of construction and shall be responsible for
any damage resulting from the failure to so provide.
[Ord. No. 3244, 7-17-2023]
A.
All site restoration shall meet the specifications established by
the Director of Public Works. Restoration details shall be made part
of the special use permit application.
1.
Failure To Restore. If the right-of-way user fails to restore
the right-of-way in the manner and to the condition required by the
Director of Public Works, or fails to satisfactorily and timely complete
all restoration, the City may, at its option, serve written notice
upon the right-of-way user and its surety that, unless within ten
(10) days after serving of such notice, a satisfactory arrangement
is made for the proper restoration of the right-of-way, the City shall
immediately serve written notice of failure to comply upon the surety
and the right-of-way user, and the surety shall have the right to
arrange for and complete the restoration excavation or work; provided,
however, that if the surety does not commence performance thereof
within fourteen (14) days from the date of notice, the City may perform
its own restoration excavation or work and prosecute same to completion,
by contract or otherwise. In situations where there is no surety and
the City has taken an escrow instead, the City may, at its option,
serve written notice upon the right-of-way user that, unless within
ten (10) days after serving of such notice, a satisfactory arrangement
is made for the proper restoration of the right-of-way, the City may
perform its own restoration excavation or work and may use the escrow
for the costs of such restoration.
a.
Upon determination by the Director of Public Works that the
failure to repair, replace or restore creates a threat to public safety,
all such repair or replacement shall be corrected within twenty-four
(24) hours of notice from the City, or the City will perform its own
restoration excavation or work and prosecute same to completion, by
contract or otherwise.
b.
Upon determination by the Director of Public Works that the
failure to repair, replace or restore creates an immediate threat
to public safety, all such repair or replacement shall be corrected
within two (2) hours of notice from the City, or the City will perform
its own restoration excavation or work and prosecute same to completion,
by contract or otherwise.
c.
The right-of-way user and its surety shall be liable to the
City for its actual costs of such restoration, including the value
of any time or overtime incurred through the labor of City employees,
the value of the use of City equipment, and the cost of City materials
used in the restoration project.
2.
Guarantee Of Restoration. In restoring the right-of-way, including,
but not be limited to, plant coverings, landscaping and grading, the
ROW user shall guarantee its excavation or work on all surfaces and
settlement and shall maintain such restoration and work result for
a period of twelve (12) months.
a.
During said guarantee period the right-of-way user shall, upon
notification from the Director of Public Works, correct all restoration
work to the extent necessary, using any method as required by the
Director of Public Works.
b.
Said restoration work shall be completed within a reasonable
time, not to exceed thirty (30) calendar days, of the receipt of notice
from the Director of Public Works. In cases where the Director of
Public Works determines that there is a safety concern, the time to
complete such restoration work may be shortened to twenty-four hours.
c.
In the event the right-of-way user is required to perform new
restoration pursuant to the foregoing guarantee, the Director of Public
Works shall have the authority to extend the guarantee period for
such new restoration for up to an additional twelve (12) months.
d.
When any required corrective actions have been completed and
inspected to the Director of Public Works' satisfaction, the
guarantee period will restart.
e.
The guarantee period shall be applicable to failure of the pavement
surface as well as failure below the pavement surface.
3.
Safeguards To Public. No person shall make any street excavation
without providing traffic control devices around the same as a warning
to the public. Traffic warning signs and devices shall be provided
in accordance with the "Manual on Uniform Traffic Control Devices"
(latest revision) and as required by the Director of Public Works
or his/her designee. If the road is a collector or arterial roadway
lights may be required.
4.
Attractive Nuisance. It shall be unlawful for the permittee
to suffer or permit to remain unguarded at the place of excavation
or opening any machinery, equipment or other device having the characteristics
of any attractive nuisance likely to attract children and hazardous
to their safety or health.
5.
The City shall have the authority to maintain civil suits or
actions in any court of competent jurisdiction for the purpose of
enforcing the provisions of this Division. The City shall have a cause
of action for all fees, expenses and amounts paid out and due it for
such work and shall apply in payment of the amount due if any funds
of the permittee deposited as herein provided and the City shall also
enforce its right under the permittee's surety bond provided
pursuant to this Division.
[Ord. No. 3244, 7-17-2023]
The City's failure to enforce or remedy any non-compliance
of the terms and conditions of this Division or of any right-of-way
permit or temporary traffic control permit granted hereunder shall
not constitute a waiver of the City's right nor a waiver of any
person's obligation as herein provided.
[Ord. No. 3244, 7-17-2023]
This Division shall not be constructed as imposing upon the
City or any official or employee any liability or responsibility for
damages to any person injured by the performance of any excavation
work for which a special use permit is used hereunder; nor shall the
City or any official or employee thereof be deemed to have assumed
any such liability or responsibility by reason of inspections authorized
hereunder, the issuance of any permit or the approval of any work.
[Ord. No. 3244, 7-17-2023]
It shall be unlawful for any individual to remove, deface, obscure
or in any other way alter signs or warning devices erected around
any opening or excavation in the public right-of-way or around any
object placed in the public right-of-way, including streets, sidewalks,
parkways or driveway approaches, regardless of whether these devices
were placed by the City or by any other individual or entity for the
protection of the public.
[Ord. No. 3244, 7-17-2023]
A.
Any person, persons, firm, association or corporation violating any
of the provisions of this Division or any employee, agent or other
person taking part in, joining or aiding in a violation of any provision
of this Division may be prosecuted as provided by law for the violation
of ordinances of the City and, upon conviction thereof, shall be subject
to the penalties provided for violation of City ordinances. Each day
a violation continues shall constitute a separate offense. Violation
of this Division shall be a misdemeanor punishable by a fine not more
than one thousand dollars ($1,000.00) in addition to any amount necessary
to restore the right-of-way.
1.
The City may issue a summons as follows:
a.
Summons, Service Of. The inspector shall fill out and sign as
the complainant a complaint and information form, hereinafter referred
to as a summons, directed by name to the individual or entity in violation
of this Division (the "violator") and, if applicable, the right-of-way
user the violator was performing work on behalf of (the "user"), showing
the address of property on which the violation occurred, and such
other information as may be available to the inspecting officer as
shown on the summons, and specifying the Section of the Division which
is being violated and setting forth in general the nature of the violation,
and may serve the summons on the violator and, if applicable, the
user. The summons shall contain a date on which the case will be on
the Municipal Court docket for hearing. The Prosecuting Attorney shall
sign the original copy of all such summons, and the original thereof
shall be forwarded to the Clerk of the Municipal Court for inclusion
on the Court's docket for the date shown on the summons.
B.
In addition to the penalties described above, the Director of Public
Works may, at the Director of Public Works' discretion, investigate
and make a determination as to whether the violations of this Division
present a substantial threat to public health, safety, and the general
welfare which necessitate the revocation of a right-of-way user's
permit. If the Director of Public Works finds permit revocation is
required, the Director of Public Works shall notify the right-of-way
user that further failure to comply with this Division could result
in revocation of the users' registration to work in the right-of-way
following a hearing as set forth herein.
1.
The notice of hearing described above shall contain:
a.
The right-of-way user, the permit, and the location of the alleged
violations of this Division, if applicable;
b.
Ordinance number and a copy of the ordinance being violated;
c.
Nature of the violation of these regulations;
d.
Notice that the hearing will determine whether the right-of-way
user's permit to work in the right-of-way may be revoked; and
e.
The time, date, and location for the hearing.
C.
The City Administrator or the City Administrator's designee shall serve as the hearing officer and hold the hearing referenced in Subsection (B) above at the time and place indicated in the notice of hearing. The hearing officer shall not require compliance with strict rules of evidence, but shall mandate that only relevant information be received. The hearing officer shall prepare findings of fact, conclusions of law, and an order stating whether a substantial threat to public health, safety, and the general welfare exists which necessitates the revocation of a right-of-way user's permit. If the hearing officer finds permit revocation appropriate, the hearing officer has the authority to enter an order to have the Director of Public Works cancel the right-of-way user's permit. The decision of the hearing officer may be appealed to the Board of Adjustment within ten (10) days of receipt of the hearing officer's order.
D.
The Director of Public Works or the Director of Public Works'
designee shall track the violations of this Division. Any entity,
corporation, partnership, or individual which receives three (3) or
more tickets for violations of this Division in a twelve-month period
(a "repeat offender"), shall be prohibited from doing any work in
the right-of-way for a period of six (6) months from the date of the
latest violation of this Division. Any additional violations during
the aforementioned six-month period will restart the six-month period
from the latest violation date. Any right-of-way users that seek a
permit pursuant to this Division may not use any entity, corporation,
partnership, or individual who is a repeat offender.
