(A) An encroachment permit from the town is required before any person performs the following within any public right-of-way:
(1) Any excavation, tunneling, undermining or otherwise affecting the surface or base of any street or sidewalk.
(2) Any removal of pavement, sidewalk, other material, or improvement.
(3) Placing or depositing within the public right-of-way, any earth of other material obstructing or tending to interfere with the use of the public way.
(4) Installing infrastructure within a public right-of-way, including sidewalks, curb, gutters, piped, vaults, cable, and conduits.
(B) Permit applications shall be made upon a form approved by the town. Permits shall be subject to revocation and the town may refuse to issue a permit for failure of the permittee or applicant to abide by the terms and conditions of the permit.
(1) (a) Permit applications shall be accompanied application fee, plans, and specifications. As-built drawings and final certification that the work meets the requirements of the Town Code are required upon completion of the project.
(b) Drawings shall be made in electronic format compatible with the town existing GIS system, of all installations and the types of equipment and systems installed or constructed in the rights of way, properly identified and described as to the types of equipment and facility by appropriate symbols and marks.
(2) A traffic control plan conforming to the Manual on Uniform Traffic Control Devices (MUTCD) published by the federal highway administration shall be submitted with the application.
(a) Work shall be conducted in such a manner that a minimum amount of interference of street traffic will result.
(b) Inconvenience to residents and businesses fronting on public streets shall be minimized.
(c) Suitable, adequate and sufficient barricades shall be available and used where necessary to prevent accidents involving property or persons. From sunset to sunrise, all barricades and excavations must be clearly outlined by acceptable warning lights, lanterns, flares and other devices.
(d) The town shall be notified five days in advance of any work proposing road closure or detour and specific permission shall be granted before the closure occurs.
(C) Permits need not be requested prior to excavation in case of emergency endangering life or property, providing the town is notified as soon as practicable and a permit is applied for upon the next regular working day following the emergency.
(D) The applicant shall be responsible for any damage done, both public and private, as a result of the proposed construction, including but not limited to streets, sidewalks landscaping and utilities.
(1) Work shall not interfere with any existing utility without the written consent of the town and without advance notice to the owner of the utility.
(a) If it becomes necessary to relocate an existing utility, it shall be done by its owner unless the owner otherwise directs.
(b) No utility, whether owned by the town or private enterprise, shall be moved to accommodate the applicant unless the cost of such work be borne by the applicant or an expressly written agreement is made whereby the utility owner and the excavator make other arrangements relating to such cost.
(c) The applicant shall support and protect all pipes, conduits, poles, wires, or other apparatus which may be in any way affected by the excavation work, and shall do everything necessary to support, sustain and protect them under, over, along or across the work.
(d) In case any of the pipes, conduits, poles, wires or apparatus should be damaged (and for this purpose pipe coating or other encasement or devices are considered as part of a substructure), they shall be repaired by the agency or person owning them, but the expense of such repairs shall be reimbursed to the owner by the applicant.
(e) It is the intent of this subsection that the applicant shall assume all liability for damage to substructures, and any resulting damage or injury to anyone because of such substructure damage and such assumption of liability shall be deemed a contractual obligation which the permittee accepts upon acceptance of an encroachment permit. The town need not be made a party to any action because of this subsection.
(f) The applicant shall inform itself as to the existence and location of all underground utilities and protect the same against damage.
(2) In order to avoid unnecessary damage to paved surfaces, track equipment shall use pavement pads when operating on or crossing paved surfaces.
(E) All street surfacing, curbs, gutters, sidewalks, driveways or other hard surfaces damaged or removed, shall be permanently restored and to a condition at least as good as its previous condition within five days after completion of the backfill unless an extension of time is requested by the applicant and approved in writing by the town.
(F) Infrastructure installation and work performed shall meet the requirements of the Town Code.
(1) Asphalt, chip-seal, and concrete cuts shall be neat line saw-cut at least 12" back from the trench edge. Asphalt and chip-seal pavement cuts shall be such that no longitudinal joint lies within the wheel track as determined by the town.
(2) Asphalt and chip-seal patches shall be sealed with a material acceptable to Town Public Works Department. All permanent patches shall be hot mix asphalt (C-3/4 mix) or high performance cold mix (UPM or equal), meeting APWA standard specifications. A tack coat shall be applied to all edges of the existing pavement prior to placing the patch.
(3) Asphalt thickness shall be equal to the adjacent surface in thickness but in no case less than two inches. The complete surface shall not deviate more than one-half inch between old and new work.
(4) Excavation through gravel surfaced area, such as gravel roads and shoulders and unpaved driveways, shall have the gravel restored to a minimum of one inch more than the thickness of the existing gravel.
(G) Trench excavation, backfilling and compaction shall conform to APWA standard specifications, § 32.05.10.
(1) All excavations shall be properly barricaded.
(2) Excavation below the specified grade line shall be refilled with ABC material compacted to a uniform density of not less than 95% of the maximum density.
(3) All backfill will be placed in layers not over six inches loose measure in thickness. Compaction will be obtained by mechanical rollers, mechanical tampers or similar means. Material for backfilling will have optimum moisture to ensure compaction. A compaction report that proves 95% or better compaction per each foot of fill is required.
(4) Trench bracing, sheathing, or shoring necessary to perform and protect the excavation is required for safety and conformance to governing laws.
(5) Substantial steel plates with adequate trench bracing shall be used to bridge across trenches at street crossings where trench backfill and temporary patches have not been completed during regular work hours. Safe and convenient passage for pedestrians shall be provided. Access to hospitals, fire stations and fire hydrants must be maintained at all times.
(H) (1) In order to ensure proper backfill and restoration of surface, the permittee shall provide a completion assurance bond or cash deposit in the amount equal to 10% of the cost of the project and in no case less than $2,000, payable to the town/city. Asphalt roadway bonds shall be retained for a period not less than one year.
(2) If a permittee fails to restore public property, structures or right of way to the town specifications within a reasonable time, specified by the town, the town may after notice, or without notice if an imminent danger exists, repair the property itself and the provider shall compensate the town for all costs it incurs in connection with the same. The town shall submit to such a provider an itemized statement of the cost incurred and the provider shall, within 30 days after receipt of the statement, pay to the town the invoiced amount.
(I) Applicant shall provide a minimum $1,000,000 certificate of general commercial liability insurance naming the town as an additionally insured in order to secure and hold the town and its officers harmless and defend the town, its officers, agents and employees, from any and all claims, liabilities, expenses or lawsuits resulting from injuries, including death, damages or losses which may arise out of or in any way connected with acts or omissions of permittee’s work in or use of the right-of-way.
(J) Public infrastructure dedicated to the town shall be warranted by the applicant against defective materials or workmanship for a period of one year from the final acceptance of the improvements by the town, usual wear and tear excepted.
(K) Any franchise, easement or other authorization granted by the town shall be in writing and any franchise, easement or other authorization not in writing shall be void.
(1) A franchise shall not convey title, equitable or legal, in the rights of way. A franchise is only the right and consent to install, repair, maintain, remove and replace facilities on, over and under the rights of way for the limited purposes and for the limited period stated in the franchise.
(2) The town shall exercise its power to manage the rights of way; to ensure that those rights of way are used for public purposes; and to receive fair and reasonable compensation for the use of rights of way by providers pursuant to common law, state constitution, and statutory authority.
(3) If the town shall elect to alter or change the grade or location of any right of way, or if it is required as part of any public project, a communications system provider shall, at its expense and within 45 days after written notice from the town, except as otherwise required by state law, remove and relocate its system at its own expense, and in each instance comply with the standards and specifications of the town.
(4) A communications system provider shall promptly locate and relocate facilities to permit installation of additional utilities and infrastructure with costs borne in accordance with normal industry procedures and applicable law.
(5) The town may, at any time, in case of fire, disaster or other emergency, as determined by the town in its reasonable discretion, cut or move any parts of any system within the rights of way, in which event the town shall not be liable therefor to a communications system provider. The town shall notify a provider in writing prior to, if practicable, but in any event as soon as possible and in no case later than the next business day following any action taken under this section.
(6) A communications system provider shall, upon prior reasonable written notice by the town or any person holding a permit to move any structure, and within the time that is reasonable under the circumstances, temporarily move any part of its system to permit the moving of said structure. A communications system provider may impose a reasonable charge on any person other than the town for any such movement of its systems.
(7) A communications system provider shall be liable for the costs incurred by the town to replace or repair and restore to its prior condition in a manner as may be reasonably specified by the town, any town property, structure or any other rights of way of the town involved in the construction, maintenance, repair, upgrade or removal of the system that may become disturbed or damaged as a result of any work thereon by or on behalf of a communications system provider.
(8) All structures, lines and equipment installed by a communications system provider within the town shall be located and installed in accordance with town ordinances governing street excavation and use of public rights of way, and shall be located so as not to obstruct or interfere with the proper use of rights of way and other public ways and places, and to cause a minimum of interference with the rights of property owners who abut any of the said rights of way alleys and other public ways and places, and not to interfere with existing public utility installations.
(9) All cables, wires and other equipment shall be installed, where possible, parallel with electric and telephone lines of the incumbent local exchange carrier, and shall utilize existing poles, conduits and other facilities whenever possible.
(10) A permittee may trim any trees upon and overhanging the streets, alleys, sidewalks, or public easements of the town so as to prevent the branches of such trees coming in contact with the wires and cables of the provider, provided that severe cutting back of tops of trees to stubs larger than three inches within the tree’s crown to such an extent so as to remove the normal canopy and result in disfigurement of the tree shall be unlawful unless approved by the town. The provider is responsible for harm caused to the trees by improper pruning or trimming. Prior to undertaking any tree trimming, provider shall notify town and/or other property owner of grantee’s intent.
(11) In all areas of the town where cables, wires and other like facilities of all other public utilities are placed or required to be placed underground, each communications system provider shall construct and install its system underground.
(a) With respect to any portion of the communications system constructed and installed aboveground, the communications system provider shall, at its sole expense, reconstruct and reinstall such system underground pursuant to any project under which like facilities of similar systems are placed underground or wherever the owner of a pole on which the provider is located moves its equipment underground.
(b) Electronic equipment may be placed aboveground in appropriate structures where existing technology reasonably requires, but shall be of such size and design and shall be so located as not to be unsightly or unsafe.
(c) Each communications system provider shall, as a condition of access to the rights of way, indemnify, defend and hold harmless the town, its officers, boards, commissions, elected officials, agents, attorneys, representatives, servants and employees, from and against any liability for damages, costs, expenses, claims, suits, actions, judgments and liabilities, including, but not limited to, expenses for legal fees, whether suit be brought or not, disbursements and liabilities incurred or assumed by town in connection with or in any way connected with acts or omissions of communications system provider’s work in or use of the right-of-way, including any and all claims which the communications system provider may now or hereafter have or claim to have against the city, its servants, agents, attorneys, representatives, employees or officials, due to or arising out of damage to any of the provider’s property or equipment in the rights of way, including, without limitation, resulting or consequential loss of income, injury to reputation, or any other resulting or consequential damages of any kind, caused by or resulting from acts or omissions of the town or any of its servants, agents, attorneys, representatives, employees or officials except to the extent that such indemnity is prohibited by law.
(d) If a franchise expires, is validly revoked, or the facilities installed pursuant to the franchise are abandoned, the town may:
1. Require the provider to stop providing the franchised services; and
2. Require the provider to remove all or portions of the system that are not in the rights of way by virtue of another, valid franchise, within a reasonable time specified by the town; and
3. Require the provider to convey title to facilities that are not removed (abandoned) and that are not in the rights of way by virtue of another, valid franchise, in a form satisfactory to the town and free and clear of all liens and encumbrances to the town.
(e) In the event that the use of any portion of the franchised system is discontinued for a continuous period of 12 months, and 30 days after no response to written notice from the town to the last known address of provider, the provider shall be deemed to have abandoned such system.
(f) A provider shall comply with all applicable laws in removing facilities and restore any affected rights of way to as good condition as that prevailing prior to such removal without materially interfering with any electrical or telephone cable or other utility wires, poles or attachments.
1. Applicable liability, indemnity and insurance provisions of this code and of the franchise shall continue to apply as if the franchise was in full force and effect during the period of removal and until full compliance by a provider with the terms and conditions of this section.
2. If a provider fails to remove or restore the town may do so and charge the provider for all costs incurred in doing so.
(g) Subject to the town rights for conveyance of title listed above in this section, a provider may abandon any underground system in place so long as it does not materially interfere with the use of the rights of way or with the use thereof by any public utility, cable operator or other person.
(h) Communications service and infrastructure providers that are not subject to municipal telecommunications license tax or sales tax, and who are required to obtain a franchise shall pay a franchise fee, which fee shall be specified in the franchise.
1. The fee shall be designed, as far as is possible, in connection with the provisions of communications sources to be equivalent to the tax that would be owed if the applicant were subject to the municipal telecommunications license or sales tax, and will generally be based upon gross revenues.
2. Where a communications or infrastructure service provider places facilities in the town, but does not provide services within the town; or obtains a franchise that only authorizes placement of facilities from point to point, the city may require that the fee be based on per foot or similar basis.
3. The provider is responsible for paying and obtaining the information necessary to calculate the gross revenues fee owed to the town, unless:
a. The provider agrees to conditions that ensure that no person may use the system without first entering into an agreement with the town that obligates that person to pay fees to the town; and
b. Provider agrees that it will not permit its system to be used by a person that does not agree to pay fees to the town.
(i) Future costs: subject to the limitations under state law, a telecommunications service provider shall pay to the town or to third parties, at the direction of the town, an amount equal to the reasonable costs and reasonable expenses that the city incurs for the services of third parties (including, but not limited to, attorneys and other consultants) in connection with any renewal or provider initiated renegotiation, or amendment of this chapter or a franchise; provided, however, that the parties shall agree upon a reasonable financial cap at the outset of negotiations.
(j) The fee payment is not a payment in lieu of any tax, fee or other assessment, except as specifically provided in this chapter or as required by applicable law. By way of example, and not limitation, fees to obtain space on the town owned poles are not waived and remain applicable.
(Ord. 2017-02, passed 11-13-2017; Am. Ord. 2021-22, passed 12-13-2021)