(A) Purpose. It is the intent of this section to provide for and specify the means to ensure the proper management and protection of the town's rights-of-way or streets. The town finds that the public convenience, safety and general welfare can best be served by exercising those regulatory powers granted to the town under state law to control the town's rights-of-way or streets. Any utility right-of-way agreement as defined in and issued pursuant to this section shall be deemed to include these findings as an integral part thereof.
(B) Definitions. For the purpose of this section the following terms, phrases, words and their derivations shall have the meaning given herein in accordance with the intention to ensure the protection of the right of the town to issue utility right-of-way agreements with regulation and control of its town rights-of-way or streets.
APPLICANT. The specific person applying for a utility right-of-way agreement under this section.
APPLICATION. That form approved by the town which an applicant must use to apply for consideration to enter into a utility right-of-way agreement with the town.
EMERGENCY FACILITIES WORK. Work made necessary by an unexpected emergency condition, including, but not limited to the following:
(a) An unexpected or unplanned outage, cut, rupture, leak or any other failure of a facility that prevents or significantly jeopardizes the ability of the town to provide service to customers;
(b) An unexpected or unplanned outage, cut, rupture, leak or any other failure of a facility that results or could result in danger to the public or a material delay or hindrance to the provision of service to the public if the outage, cut, rupture, leak or other such failure is not immediately repaired, controlled, stabilized or rectified; or
(c) Any occurrence involving a facility that a reasonable person would conclude, under the circumstances, warrants immediate and undelayed action by the owner of the facility, in order to protect the public, structures and town owned rights-of-way and or streets.
ENFORCEMENT OFFICER. The person or persons appointed by the Town Manager to administer and enforce the provisions of this section and shall include the Town Engineer, and any person appointed by the Town Manager. The Enforcement Officer(s) may be provided with agents to assist in administration and enforcement as directed by the Town Council.
FACILITIES. Shall mean, but is not limited to, any conduit, duct, line, pipe, wire, hose, cable, culvert, tube, pole, receiver, transmitter, satellite dish, repeater, amplifier or other device, material, apparatus or medium, for the transmission or distribution of any service or commodity, installed below or above ground within the town rights-of-way or streets, whether used privately or made available to the public.
GRANTEE. Any natural person(s), partnership(s), domestic and foreign corporation(s), association(s), joint venture(s), or organization(s) of any kind which has legally entered into a utility right-of-way agreement with the town, and shall include the lawful successor, transferee or assignee of such grantee.
NOTICE. A written notice addressed to the grantee at its principal office or such other office as the grantee has designated to the town as the address to which notice shall be transmitted to it. In computing notice time, holidays recognized by the town and Saturdays and Sundays shall be excluded.
TOWN. The Town of Clayton, North Carolina as represented by the Town Council, or its designee, acting within the scope of its jurisdiction.
TOWN RIGHTS-OF-WAY AGREEMENT AREA. The entire town, or portions thereof, for which a town rights-of-way agreement is granted under the authority of this section.
TOWN RIGHTS-OF-WAY OR STREETS OR OTHER RIGHTS-OF-WAY. The surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, parkway or tunnel, now or hereafter held by the town in such a manner as to entitle the town to grant to grantee the use thereof for the purpose of installing and maintaining the grantee's infrastructure. No reference herein, or in any town rights-of-way agreement shall be deemed to be a representation or guarantee by the town that its title to any property is sufficient to permit its use for such purpose, and the grantee shall, by its use of such terms, be deemed to gain only such rights to use property in the town to which the town may have the right and title.
UTILITY. A company that owns and provides services to customers through utility facilities located in the town rights-of-way. This definition shall include the town or purposes of the town's ownership of water, waste water, and stormwater utility facilities.
UTILITY RIGHT-OF-WAY AGREEMENT. A contract entered into voluntarily by the grantee, containing the specific provisions granted, including referenced specifications, applications and other related material. A utility right-of-way agreement granted pursuant to this section grants the grantee the nonexclusive right to construct, operate and maintain the stated infrastructure for use as defined in the applicant's application for construction that has been placed in the specified town rights-of-way or streets. Any such authorization, in whatever form granted, shall not mean or include any license or permit required for the privilege of transacting and carrying on a business within the town as required by other ordinances and laws of the town.
UTILITY SYSTEM. A pole, tower, water main or line, sanitary sewer pipe or line, stormwater pipe or structure, gas pipe or gas line, telecommunications line or equipment, power line, conduit, or any like structure.
(C) Utility right-of-way agreement required. It shall be unlawful for any utility to occupy or use the town rights-of-way or streets in the town for the purpose of constructing or installing utility systems without first obtaining a utility right-of-way agreement pursuant to this section, unless such occupation or use has been approved through a separate town permitting process.
(1) Contents. A utility right-of-way agreement may, among other things:
(a) Grant to the grantee the general right to construct, install, maintain, repair, or remove utility systems in the town's rights-of-way or streets provided, however, that the utility right-of-way agreement does not constitute a permit as required under § 99.015 of this Code;
(b) Specify the term of the agreement;
(c) Provide for the removal of abandoned utility systems;
(d) Acknowledge the town's right to require the removal or relocation of utility systems when necessitated by a public need;
(e) Provide for the defense and indemnification of the town, its officers, and employees for claims and suits arising out of the use of the right-of-way;
(f) Require proof of suitable levels of insurance coverage to be held by the grantee;
(g) State the rights, if any, to assign or transfer rights or obligations of the grantee without the prior consent of the town;
(h) Acknowledge the town's full retention of its police power;
(i) Provide for the registration of all contractors who work in the town's rights-of-way or streets on behalf of the grantee; and
(j) Provide for the preparation, maintenance and maps of utility systems located within the town.
(2) Exceptions. The holder of an unrevoked and unexpired franchise issued by the town under Chapter 111 of this Code shall not be required to obtain a utility right-of-way agreement for purposes of the existing utility system facilities located in the town's rights-of-way or streets that are used for the purpose authorized by the franchise. This section shall not apply to the Town of Clayton. This exception shall not extend to extensions, modifications, or planned maintenance of existing facilities operated by a holder of a valid franchise.
(D) Application for utility right-of-way agreement. Prior to the construction, installation, maintenance, repair, or removal of a utility system in the town's rights-of-way or streets, a utility right-of-way agreement application shall be applied for and completed by the applicant. The application shall contain general information in regards to the applicant's intended use of or occupation within the town's rights-of-way or streets and the timeframe for actual work to begin. A form application shall be made available to applicants on the town website and in the Public Works Department offices. The application must be submitted by the applicant and approved by the Public Works Director prior to any utility right-of-way agreement being entered into and before any construction, installation, maintenance, repair, or removal of a utility system begins within the town's rights-of-way or streets.
(E) Utility right-of-way agreement area. The utility right-of-way agreement area shall be the portions of the town's rights-of-way or streets to be impacted by the construction, installation, maintenance, repair, or removal of a utility system by a utility.
(F) Emergency facilities work. Notwithstanding the grantee's use of the town's rights-of-way or streets, the town or its designee may at all times conduct emergency facilities work within the town's rights-of-way or streets, or infrastructure as needed with or without prior notice to the grantee. The town shall attempt to give the grantee reasonable notice of non-emergency repairs and emergency facilities work whenever possible.
(G) Term of utility right-of-way agreement. The term of the utility right-of-way agreement shall commence upon execution of the agreement by the town and the grantee and shall continue for the period agreed to in the utility right-of-way agreement. Each utility right-of-way agreement shall continue for the period as specified unless sooner terminated as provided therein. grantee shall have no property right upon the expiration of the utility right-of-way agreement term, except as provided by applicable law.
(H) Renewal of utility right-of-way agreement. Upon completion of the term of any utility right-of-way agreement granted under this section, the town may in its reasonable discretion grant or deny renewal of the utility right-of-way agreement of the grantee.
(I) Utility right-of-way agreement non-exclusive. Any utility right-of-way agreement granted pursuant to this section shall be nonexclusive. The town specifically reserves the right to: (i) grant at any time such additional utility right-of-way agreement for a utility system as it deems appropriate; (ii) permit the use of the town rights-of-way or streets for any purpose; and/or (iii) build, operate, and own such utility system or systems as it deems appropriate.
(J) Powers reserved. A utility right-of-way agreement does not constitute a grant of all governmental approval necessary for the use and enjoyment of utility systems located in the town's rights-of-way or streets. A utility right-of-way agreement is not a franchise as provided for in Chapter 111 of this Code. With respect to the grantee of a utility right-of-way agreement, the town fully retains its franchising authority and the grantee of a utility right-of-way agreement is not relieved of its obligation to obtain all necessary franchises and permits and to comply with all other legal requirements. The grantee shall also comply with all generally applicable laws, sections and regulations enacted by the town pursuant to its police powers. Any conflict between the terms of this section or the utility right-of-way agreement and any present or future lawful exercise of the town's police powers shall be resolved in favor of the exercise of the town's police powers.
(K) Deposits, letters of credit and bonds. A cash deposit, letter of credit or warranty bond may be required in an amount prescribed by the town to guarantee the completion of work and restoration of the site in accordance with all rules and regulations.
(L) Enforcement. Any of the following shall be a violation of this section and shall be subject to the enforcement remedies provided by division (M) and by state law:
(1) To engage in any utility system construction or installation, regardless of the party actually constructing or installing, or other activity of any nature upon land or improvements thereon subject to the jurisdiction of this section.
(2) To engage in any development, use, construction, remodeling, or other activity of any nature in any way inconsistent with any approved utility right-of-way agreement, plan, permit, certificate, or other form of authorization granted for such activity.
(3) To violate, by act or omission, any term, variance, modification, condition, or qualification placed by the Town Council or its agent boards upon any required utility right-of-way agreement, permit, certificate, or other form of authorization for the use, development, or other activity upon land or improvements thereon.
(4) To erect, construct, reconstruct, alter, repair, convert, maintain, or use any infrastructure or to use any town right-of-way or street in violation or contravention of this section or any other regulation made under the authority conferred thereby.
(5) Any of the above violations is a separate and distinct offense.
(M) Remedies. Any or all of the following procedures may be used to enforce the provisions of this section.
(1) Any violation of this section or of any condition, order, requirement, or remedy adopted pursuant hereto may be restrained, corrected, abated, mandated, or enjoined by other appropriate proceeding pursuant to state law.
(2) Any person who violates any provision of this section shall be subject to the assessment of a civil penalty in accordance with § 10.98 of this Code.
(3) The Enforcement Officer may withhold or deny any permit, certificate, or other authorization on any land, building, structure, sign, or use in which there is an uncorrected violation of a provision of this section, or of a condition or qualification of a permit, certificate, or other authorization previously granted.
(4) The Enforcement Officer may condition the authorization of any permit or certificate upon the correction of the deficiency, payment of civil penalties within a specified time, or the posting of a compliance security as provided for under division (K) of this section.
(5) Whenever there is a land disturbing activity and/or a building, structure, sign, or part thereof is being constructed, reconstructed, altered, or repaired in association with a utility right-of-way agreement in violation of this section, the Enforcement Officer may order the work to be immediately stopped. The stop work order shall be in writing and directed to the owner, occupant, or person doing the work. The stop work order shall state the specific work to be stopped the specific reasons for the stoppage, and the conditions under which the work may be resumed. Such action shall be in accordance with G.S. § 160A-421 or the N.C. Building Code.
(N) Responsible parties. The grantee and the owner or occupant of any land, building, structure, sign, use of land, or part thereof, and any architect, builder, contractor, subcontractor, agent, or other person who participates or acts in concert, assists, directs, creates, or maintains any condition that is in violation of this section may be held responsible for the violation and subject to the civil penalties and remedies provided by this section.
(O) Notice of violation. No civil penalty shall be assessed until the person alleged to be in violation has been notified in accordance with § 10.98
. If after receiving a notice of violation under § 10.98
the owner or other violator fails to take corrective action, a civil penalty may be imposed in accordance with § 10.98
.
(P) Appeal. Any grantee, and/or, the owner or occupant who has received a notice of violation provided for in division (O), or who's application has been denied, may appeal in writing the decision of the Enforcement Officer to the Town Manager within 15 days following the date of the notice of violation. The Town Manager shall hear an appeal within a reasonable time, and it may affirm, modify, or revoke the notice of violation. The decision of the Town Manager may be delivered to the aggrieved party either by personal service or by registered mail or certified mail return receipt requested. In the absence of an appeal, the decision of the Enforcement Officer shall be final and non-appealable. A ruling on appeal is subject to review in the Superior Court of Johnston County by proceedings in the nature of certiorari. Any petition for writ of certiorari for review shall be filed with the Clerk of Superior Court within 30 days after novice of the decision has been sent to the appellant.
(Ord. 2015-03-01, passed 3-2-15)