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Depending upon the extent of an applicant's proposed excavation, construction or other activities in any public way, the Administrator may require the applicant to secure and provide documentation of an appropriate performance bond or letter of credit, and/or insurance covering such activities pursuant to terms acceptable to the Administrator.
(Ord. passed 9-17-2019)
It shall be the responsibility of each person granted authorization to encroach upon a public way to:
(A) Ensure that any excavation, construction or other work done by them or on their behalf in the relevant public way is performed consistent with the town's specifications and other requirements for construction activities, including those relating to restoration.
(B) Restore land, utility lines, other improvements, ground cover, and landscaping disturbed by excavation and construction in the public way to the standards specified by the town.
(1) Where permanent restoration is temporarily impractical because of weather or other circumstances, temporary restoration may be required.
(2) Restoration shall be accomplished within the time approved by the Administrator.
(3) If restoration work proves to be inadequate over time, as determined in the sole, reasonable discretion of the Administrator, the encroacher shall perform such additional restoration work as the Administrator may direct.
(4) Inspection and approval by the Administrator immediately after installation does not constitute a waiver of the town's rights to determine that the restoration work is not adequate over time and must be remedied.
(C) If requested due to a need for the town or its contractors to complete any work in a public way, temporarily or permanently remove or relocate their items located below or above the public way.
(D) Otherwise comply with the terms of their encroachment permit or agreement or the encroachment provisions in their franchise agreement, and all applicable laws, ordinances, resolutions, rules, regulations and other directives of the town and any federal, state or local governmental authority having jurisdiction over the person's activities in or near such public way.
(Ord. passed 9-17-2019)
Any grant of authorization to encroach upon a public way given by the Administrator pursuant to this article shall be nonexclusive. The town specifically reserves the right to grant, at any time, such additional rights of access to the public way that it deems appropriate.
(Ord. passed 9-17-2019)
(A) In the event that any person encroaches upon a public way without prior authorization by the Administrator, or violates the conditions by which authority to do so was granted, or otherwise violates any provision of this article, the Administrator may, in addition to any other remedies provided by any other applicable law:
(1) Issue an order to the person commanding them to immediately cease and desist their unpermitted or otherwise wrongful activities in the public way, and to restore the affected area;
(2) Revoke any authorization previously granted for the encroachment;
(3) Issue a civil penalty of $500 to each responsible person or $1,000 to each repeat violator; or
(4) Any combination of the above-referenced remedies and any other remedy authorized under G.S. 160A-175.
(B) Civil penalties authorized by this section shall be assessed against each responsible person, including the owner on whose behalf work is being performed and the contractor who is performing such work. In situations where evidence is submitted to the Administrator's satisfaction that the work performed constitutes emergency work, however, the Administrator may waive the civil penalties. In such emergency situations, the entity performing the emergency work must apply for the required permit as soon as reasonably possible and pay the applicable permit fee.
(Ord. passed 9-17-2019)
(A) In cases where the Administrator denies a person's application to encroach upon a public way, or is willing to grant that request but subject to conditions or terms the applicant deems to be unsatisfactory, resulting in an inability to finalize the requisite written authorization, the applicant may seek review of the Administrator's decision before the Town Council. The applicant must request a hearing before the Town Council in writing to the Administrator within ten days of the applicant's notice of the decision at issue. In such submission, the applicant must identify the issues or disagreements the applicant has with the relevant decision. In such cases, the Town Council shall make the final decision, through adoption of an appropriate resolution.
(Ord. passed 9-17-2019)
The right to perform work or maintain facilities in the public way is allowed subject to the conditions below, as supplemented by those set forth in other sections of this chapter, standards adopted by the Administrator, and requirements contained in an encroachment agreement or other written authorization.
(A) The town does not warrant its legal interest in the public way. Persons doing work in the public way and users may need to obtain approvals from persons with property interests in the public way.
(B) An authorization does not convey any legal right, title, or interest in the public way, and may be revoked or amended at will by the town.
(C) The town and its officials, officers, and employees are not liable for any direct, indirect, or consequential damages that may result to private facilities located in a public way as a result of the town's construction, installation, inspection, maintenance, or repair of the public way or of public improvements in the public way.
(D) Persons responsible for work in the public way or for items located in the public way shall pay for all damage that results, directly or indirectly, from such work or items.
(E) Non-enforcement of one or more provisions of an authorization does not waive the town's right to enforce the provisions of the authorization.
(F) An authorization creates no third-party rights against the town.
(G) An authorization does not limit the town's exercise of its regulatory, police, governmental, legislative, or contracting authority, including its authority to enact and enforce against an authorized encroacher more strict requirements then were previously applicable to the authorized encroachment. If the terms of an authorization conflict with the terms of another authorization or with an ordinance or other regulation adopted by the town, the stricter of the applicable provisions shall control.
(Ord. passed 9-17-2019)
The Administrator may exempt the town's contractors or the North Carolina Department of Transportation (NCDOT) from particular requirements of this chapter when substantial compliance has been assured or, in the case of NC DOT, where the need for state infrastructure on town roads, or a joint undertaking by the town and NC DOT, or the use of state-controlled areas of the public way makes the application of such requirements unreasonable.
(Ord. passed 9-17-2019)
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