§ 52.02  GENERAL CONDITIONS FOR USE OF RIGHTS-OF-WAY.
   (A)   Rights-of-way in the town may be controlled by North Carolina Department of Transportation (NCDOT), private parties and/or the town. The town issues and/or monitors work and/or encroachments in the town's rights-of-way. The town may own property in NCDOT'S rights-of-way. Encroachment permits or agreements are required to attach or use any town property.
   (B)   The right to perform work in the PROW and the ability to maintain facilities in the PROW are allowed subject to the conditions below, as supplemented by those set forth in other sections of this chapter, standards adopted by the Department, and requirements contained in permits and/or other authorizations.
      (1)   An encroachment permit does not convey any legal right title, or 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 property.
      (2)   A permit or authorization does not limit the town's exercise of its regulatory, police, government, legislative, or contracting authority. Town retains all rights it has to use all portions of public rights-of-way for its purposes not prohibited by law. If a permit or authorization conflicts with the terms of another permit or authorization or with the town code, the stricter of the applicable provisions shall control. The stricter provision shall not control, however, if a later-issued permit, authorization or ordinance explicitly and specifically states that particular terms are to override prior, less strict terms in an authorization.
      (3)   The town and its officials, officers, and employees are not liable for any direct, indirect or consequential damages that result when facilities in the public way are damaged during the construction, installation, inspection, maintenance, use or repair of public improvements that have received town funding or that are installed pursuant to a contract with the town.
      (4)   Users and persons who cause work to be done in the public way shall pay for all damage that results, directly or indirectly, from work performed for their benefit in the PROW, and for the installation, repair, maintenance, and operation of their facilities in the PROW.
      (5)   An encroachment permit creates no third-party rights against the town and is intended only for the benefit of the person receiving the permit or authorization.
      (6)   Persons doing work in the PROW shall not interfere with existing town utilities, such as infrastructure for water and sewer, the natural and constructed stormwater system, and traffic signals and associated lines, or the repair or replacement of such systems. Persons doing work in the PROW shall apply for an encroachment permit at least ten working days to locate and mark any existing town utility lines prior to initiating work. Damage to town utilities or other infrastructure shall be paid for by the person or user contracting for the work that resulted in such damage. If an encroachment permit is not required, persons doing work in the PROW shall also give the town Public Works Department ten working days' notice to locate and mark any existing town utility lines prior to initiating work. In addition, persons will give the Department a second notice 24-hours before doing any work in the PROW as required by division (B)(15)) below.
      (7)   Persons and users performing work in the public way shall ensure worker, traffic, and pedestrian safety and shall ensure that all work is performed in accordance with industry standards. Compliance with all federal, state, and local regulations, and all federal, state, local and industry codes and standards is required. These include but are not limited to compliance with the Occupational Safety and Health Act; compliance with the National Electrical Code and National Electrical Safety Code; compliance with fiber optic installation standards and telecommunication industry standards; compliance with plumbing and pipe installation codes and standards; and compliance with standards and codes for traffic safety and lane closures. Persons and users shall provide all equipment and personnel necessary to meet applicable regulations, codes, and standards and shall furnish additional equipment or personnel if requested by the town.
      (8)   The Department shall have the discretion to approve, deny, alter, and condition all proposed locations of facilities in the public way, and to determine whether placement, if allowed, shall be above ground or below ground.
      (9)   Wires, fiber, and similar conduit shall generally be located underground. A user that wishes to place such facilities above ground shall demonstrate to the town's satisfaction why above ground placement is necessary.
      (10)   The town recommends that facilities shall be located in existing ducts if such ducts are available and practicable to use. Applicants shall take reasonable steps to procure the right to use existing ducts.
      (11)   A user shall demonstrate to the Department's satisfaction that sufficient space exists in the public way for its proposed facilities without interfering with existing or planned public projects, and that placement of the facilities will not unduly disrupt use of the public way or negatively impact the condition of the public way.
      (12)   The town may require a user to post written notice of proposed work or activities along the public way impacted and/or to distribute notices to individual properties located along the public way.
      (13)   Users shall give the Department all information it requests regarding the installation of facilities upon completion. Such information may include, but is not limited to as-built or other maps, which shall be furnished in the form required by the Department, and changes to planned locations that were necessary to avoid pre-existing infrastructure.
      (14)   A person or user that conducts excavation or other activities that disturb the public rights-of-way or plantings within the public rights-of-way or facilities within the public way shall restore the area to a functional condition equivalent to that it was in prior to the disturbance. The restoration shall include, but is not limited to, installation of pavement, resurfacing nearby areas, grading other surface areas, restoring below ground areas, planting and landscaping, replacing curb ramps to current standard, and repairing improvements and facilities.
      (15)   Users shall contact the Public Works Department at least 24 hours prior to actual work performed in the right-of-way except in the case of an emergency.
      (16)   To the extent permitted by North Carolina law, the town may require a performance bond for work to be done in the PROW.
      (17)   A user shall at its own cost relocate its facilities within a time determined in the discretion of the town if the town determines in its discretion that the facilities were placed in the PROW without first obtaining permission from the town and the facilities:
         (a)   Interfere with the use of the public way, or the provision of services to town residents;
         (b)   Interfere with the repair or maintenance of any town-maintained utility; or
         (c)   Will impede the construction of a project funded in part with public funds, or a project to be dedicated to the public upon completion.
(Ord. 17-12, passed 9-18-2017)