Tiburon Municipal Code Ch. 19A Use of Public Right-of-Way

(a) The public rights-of-way are unique public resources held in trust by the town for the benefit of the public. These physically limited resources require proper management by the town to maximize their efficiency and minimize the costs to the taxpayers, to protect against foreclosure of future economic expansion because of premature exhaustion of the public rights-of-way, and to minimize the inconvenience to and negative effects on the public from private uses of the public rights-of-way.

(b) Under applicable state and federal law including, but not limited to, section 253(c) of the Telecommunications Act of 1996, the town has the power to manage its public rights-of-way and to obtain reasonable and fair compensation for their use. The town recognizes that California Public Utilities Code Sections 7901 and 7901.1 currently limit the town's power to control use of the public rights-of-way by telephone companies as that term is used by such statutes, to time, place and manner regulations. The provisions of this chapter, including but not limited to the provisions regarding the consideration, amendment, renewal, transfer, and implementation of right-of-way agreements, shall be applied to telephone companies in accordance with the requirements of California Public Utilities Code Sections 7901 and 7901.1.

(c) The purpose of this chapter is to serve and further the purposes identified above and to enable the town to treat similarly persons who are making a similar use of the town's public rights-of-way.

(Ord. No. 489 N.S., § 3 (part))

For purposes of carrying out the intent of this chapter, the following words, phrases, and terms shall have the meanings set forth herein unless a different meaning is clearly intended by the use and context of the word, phrase, or term:

"Engineer" means the town engineer or his designee.

"Facility" means any fiber optic, coaxial, or copper cable, telephone, telecommunications, electric or other wire or line, oil, gas, or other pipeline, duct, conduit, cabinet, tunnel, vault, equipment, drain, manhole, splice box, surface location, marker, pole structure, utility, or other appurtenance, structure property, or tangible thing owned, leased, operated, or licensed by a person and located or proposed to be located in, upon, above, beneath, or across any public right-of-way.

"Licensee" means a person with whom the town has executed a right-of-way agreement under this chapter or any lawful successor, transferee, or assignee of such person.

"Local agency" means a local public entity as defined by Government Code Section 54980(b).

"Person" means any person, business, firm, corporation, or other legal entity who places, constructs, owns, controls, operates, manages, or uses any facility in, upon, above, beneath, or across any public right-of-way.

"Public right-of-way" means the area in, upon, above, beneath, or across any town-maintained public street, road, lane, court, alley, boulevard, sidewalk, median, parkway, or easement for vehicular travel, as defined in the town road list. "Public right-of-way" does not include any trail, pathway, or lane used exclusively for pedestrian or bicycle use.

"Right-of-way agreement" means the authorization granted by the town to a person under this chapter giving the person a nonexclusive right to occupy certain space in, upon, above, beneath, or across any public right-of-way for the purpose of providing a specified service.

"Standard specifications" means the then current version of the standard specifications, standard drawings, and uniform construction standards adopted by resolution of the town council.

(Ord. No. 489 N.S., § 3 (part))

No person shall place, construct, own, control, operate, manage, or use any facility in, upon, above, beneath, or across any public right-of-way without first obtaining a right-of-way agreement from the town for such purpose. A right-of-way agreement may authorize multiple facilities and facilities constructed over a period of time. The execution of a right-of-way agreement shall not diminish, abrogate, or otherwise affect a licensee's obligation to comply with any other applicable provision of this Code or other town ordinances or regulations, or state or federal law, including, but not limited to, the following:

(a) Any permit or authorization required for the privilege of transacting business within the town as required by the Code or ordinances of the town;

(b) Any permit, agreement, or authorization required in connection with activities in, upon, above, beneath or across the public right-of-way, including by way of example but not limitation, road work, road excavation, use, removal, and relocation of property within a road or other road work.

(c) Any permits or agreements for occupying any other property of the town to which access is not specifically granted by the right-of-way agreement including, without limitation, permits and licenses for placing devices on or in poles, conduits, or other structures or facilities owned by the town or other governmental entities.

(Ord. No. 489 N.S., § 3 (part))

The right-of-way agreement requirement imposed by section 19A-030 shall not apply to the following persons or facilities:

(a) Any person who is a party to an existing agreement or franchise with the town that authorizes the use of the public right-of-way, and which agreement or franchise is in full force and effect on the effective date of this chapter, shall not be subject to section 19A-030 until such time as the existing agreement or franchise expires or is terminated. If an existing agreement or franchise for use of the public right-of-way contains within it a provision for the renewal or extension of the agreement or franchise, then the renewal or extension shall be negotiated and executed pursuant to the terms of this chapter;

(b) Any facility the engineer determines in writing (1) is an insignificant impact or encroachment on, or use of, the public right-of-way, and (2) does not inconvenience or jeopardize the public's continued use of the public right-of-way;

(c) Any facility consisting of a single pole with attachments and appurtenant equipment provided that the following conditions are met:

(1) All appurtenant pedestals, cabinets and other equipment occupy less than fifty square feet of public right-of-way.

(2) The total excavation for the pole and all appurtenant equipment and telecommunications lines does not exceed two hundred linear feet of the public right-of-way.

(d) Any facility temporarily placed in the public right-of-way for a period not to exceed one year, when such facility has been otherwise approved by the engineer;

(e) Any person who is a party to an existing cable television franchise agreement with the town or an existing cable television or telecommunications franchise agreement with the Marin Telecommunications Agency;

(f) Any person placing or constructing a facility in the public right-of-way pursuant to an encroachment permit issued prior to the adoption of this chapter.

Any person or facility exempted by this section from the right-of-way agreement requirement, nonetheless shall obtain any and all encroachment, excavation or other permits (including, but not limited to, a design review or a use permit) required by this Code before commencing any work within a public right-of-way.

(Ord. No. 489 N.S., § 3 (part))

Application for a right-of-way agreement shall be in writing, shall be filed with the engineer, and shall contain the following information:

(a) The name, mailing and email address, telephone number, and facsimile number of the applicant;

(b) A detailed statement and description of the facilities proposed to be placed, constructed, owned, controlled, operated, managed, or used by the applicant; the proposed location of the facilities; the manner in which the applicant proposes to place, construct, own, control, operate, manage, or use the facilities; the services provided by the facilities; and the extent and manner in which existing or future poles or other facilities of other persons will be used;

(c) A detailed description and location map of the public rights-of-way or other public places within which the applicant proposes or seeks authority to place, construct, own, control, operate, manage, or use any facility; a detailed description and location map of the facilities to be installed in the public right-of-way and any adjacent public or private facilities, or property; a detailed description of the proposed traffic control plans and road repairs; and a construction schedule. The engineer may allow the applicant to provide a detailed description of the specific design of the facility and the construction schedule to be submitted at the time an application for an encroachment permit is filed;

(d) Satisfactory evidence demonstrating the applicant's financial ability to construct, operate, and maintain the proposed facilities;

(e) Copies of all licenses, permits, franchises, or other written authorizations received by the applicant from the Federal Communications Commission, the California Public Utilities Commission, or any other federal or state regulatory commission that are required for the applicant to construct, operate, or maintain the proposed facilities.

(f) The town may, at any time, demand, and the applicant shall provide within the time required, supplementary, additional, or other information reasonably necessary to determine whether the requested right-of-way agreement should be granted under the criteria set forth in section 19A.7. Such information may include the completion of a standard questionnaire for right-of-way users;

(g) Documentation of compliance with the notice required under section 19A-22(d).

(Ord. No. 489 N.S., § 3 (part))

Each application for a right-of-way agreement shall be accompanied by payment to the town of an application fee in an amount determined by the town necessary to pay all estimated expenses incurred by the town in connection with the processing of such application and the execution of a right-of-way agreement, including any expenses incurred by the town for outside technical or legal services to review such application or agreement. In the event the town subsequently determines the initial application fee is insufficient to pay for all expenses, it may require the applicant to pay an additional application fee in an amount sufficient to cover the additional estimated expenses. No portion of the application fee shall be considered a tax, compensation, or revenue due to the town under this chapter or Code, or any other local, state, or federal law for use of the public right-of-way.

(Ord. No. 489 N.S., § 3 (part))

(a) Upon receipt of an application for a right-of-way agreement which is determined to be complete by the engineer, the town council shall consider the application and may, by resolution or ordinance, grant or deny the requested right-of-way agreement. If the right-of-way agreement is granted, the application submitted shall constitute and form part of the right-of-way agreement as executed to the extent not inconsistent therewith. If the application is denied, the resolution shall include the reasons for denial. The decision of the town council shall be final.

(b) In considering whether to grant or deny a requested right-of-way agreement, the town council shall apply the following criteria:

(1) The applicant's ability to install, maintain, and operate the facilities described in the application in a safe, proper, and lawful manner;

(2) The capacity of the public rights-of-way identified in the application to accommodate the applicant's proposed facilities and any foreseeable additional facilities of the applicant or other licensees which may need to be accommodated;

(3) The town's future plans for the affected public rights-of-way;

(4) Whether any damage or disruption of public or private facilities, improvements, service, or landscaping by the proposed use or its proposed location will occur;

(5) Whether the public's right to use the public rights-of-way will be unreasonably interfered with or disrupted;

(6) The availability of alternative routes or locations for the applicant's proposed facilities that will avoid or mitigate any adverse impacts potentially related to the proposed route or location;

(7) Any licenses, permits, or franchises received by the applicant from the Federal Communications Commission, the California Public Utilities Commission, or any other federal or state regulatory commission or agency affecting the applicant's ability to install, maintain, and operate the proposed facilities.

(c) If the right-of-way agreement is approved, the right-of-way agreement shall not be effective unless and until the town and the licensee have executed a written right-of-way agreement that contains, at a minimum, the following:

(1) The purpose, nature, and specific uses of the facilities to be installed in the public right-of-way pursuant to the right-of-way agreement;

(2) The right of the town to audit the licensee to ensure such purposes and uses have not been violated;

(3) The terms and conditions for licensee's use of the public right-of-way, including all conditions imposed by the town council in its approval of the right-of-way agreement;

(4) The right-of-way usage fee, if any, or the methodology for determining the fee to be paid to the town by the licensee pursuant to section 19A-11. The town may refuse to enter into a license agreement with any proposed licensee who fails to agree to pay the right-of-way usage fee established by the town;

(5) The permittee's responsibility to relocate the facilities at the permittee's expense upon receiving a written request from the engineer within one hundred eighty days of receiving such request;

(6) Incorporation of the provisions of this chapter;

(7) Any other provision determined to be necessary or prudent by the town to further the purposes and comply with the requirements of this chapter.

(d) The approval and execution of a right-of-way agreement shall not exempt the licensee from obtaining any encroachment or excavation permits otherwise required by this Code, including, without limitation, chapter 19. No work shall be performed by any licensee in the public right-of-way before all required encroachment and excavation permits are granted or issued for the work.

(e) The town council may delegate its power to approve or deny an application for a right-of-way agreement under this section and its power to amend or renew an agreement under sections 19A-9 and 19A-10 to the engineer. The engineer shall exercise such power in accordance with the provisions of sections 19A-7, 19A-9, and 19A-10 except that the engineer's decision shall be in the form of a written statement. The engineer's decision may be appealed to the town council pursuant to section 19A-26.

(Ord. No. 489 N.S., § 3 (part))

A right-of-way agreement executed under this chapter shall be valid for the period of time stated in the agreement.

(Ord. No. 489 N.S., § 3 (part))

A licensee may apply to amend his right-of-way agreement to revise the right-of-way within which the licensee proposes to place, construct, own, control, operate, manage, or use its facilities, as long as the type of facilities and the use of such facilities are already authorized by the licensee's existing right-of-way agreement. The amendment application shall contain the information required under section 19A-5, and shall be accompanied by the application fee specified in section 19A-6. Upon receipt of a completed amendment application, the town council shall, by resolution or ordinance, approve or deny the amendment application in whole, in part, or with additional conditions, applying the following criteria:

(a) The criteria set forth in section 19A-7;

(b) The applicant's history and current compliance with any applicable right-of-way agreement, this chapter or any other applicable local, state or federal law, regulation, or policy;

(c) The capacity of the roads, alleys or other public rights-of-way identified in the amendment application to accommodate the applicant's facilities and uses of the public right-of-way.

(Ord. No. 489 N.S., § 3 (part))

A licensee who desires to renew his right-of-way agreement may file an application with the town for renewal, not more than one year nor less than one hundred eighty days before expiration of his current right-of-way agreement. The renewal application shall contain the information required under section 19A-5, and shall be accompanied by the application fee specified in section 19A-6. Upon receipt of a completed renewal application, the town council shall, by resolution or ordinance, grant or deny the renewal application in whole, in part, or with additional conditions, applying the following criteria:

(a) The criteria set forth in section 19A-7;

(b) The applicant's history and current compliance with any applicable right-of-way agreement, this chapter, or any other applicable local, state or federal law, regulation, or policy;

(c) The continuing capacity of the roads, alleys, or other public rights-of-way identified in the renewal application to accommodate the applicant's facilities and uses of the public right-of-way.

(Ord. No. 489 N.S., § 3 (part))

Each right-of-way agreement granted under this chapter is subject to the town's right, which is expressly reserved, to fix a fair and reasonable compensation to be paid by the licensee for the rights granted in the right-of-way agreement. The right-of-way agreement shall specify the amount of compensation to be paid by the licensee for the use of the town's right-of-way and the other privileges granted by the agreement. Compensation may be in the form of cash payments, in-kind contributions, or other benefits of value paid or provided to the town by the licensee or any combination of the foregoing. This usage fee shall be waived for right-of-way agreements approved and executed for right-of-way uses governed by the Broughton Act (California Public Utilities Code Sections 6001 et seq.), the Franchise Act of 1937 (California Public Utilities Code Sections 6201 et seq.), or sections 7901 and 10101 of the Public Utilities Code. To receive a waiver, the applicant shall submit information to indicate its use is governed by one of the preceding statutes.

(Ord. No. 489 N.S., § 3 (part))

(a) Prior to the issuance of any permit for construction in the public right-of-way, the engineer may require the licensee to deliver to the town satisfactory security in the amount of one hundred ten percent of the total estimated cost of all work to be performed under such permit, as determined by the engineer. Such security shall consist of an irrevocable letter of credit, cash deposit, or performance bond as determined by the engineer. The security shall be provided in the manner required by the engineer and maintained in full force and effect until the permitted work in the public right-of-way is completed to the satisfaction of the engineer, at which time the amount of the security shall be reduced to ten percent of the actual cost of the work. The reduced security shall be maintained by the licensee for a period of one year as a guarantee that the work is of good quality and free from any defective or faulty material or workmanship. Any surety supplying a performance bond must be an "admitted surety insurer," as defined in section 995.120 of the Code of Civil Procedure, authorized to do business in the state of California. Return of the security shall be conditioned upon the licensee's faithful performance of all work in the public right-of-way specified in the applicable permit. In the event the licensee fails to comply with any provisions of this chapter related to such work, or any provision of any applicable right-of-way agreement or permit, or other approval related to such work, any damages or loss suffered by the town as a result thereof shall be recoverable from the security, including but not limited to the full amount of any compensation, indemnification, cost of removal, or abandonment of any property of the licensee, plus reasonable attorneys' fees and costs up to the full amount of the security.

(b) Neither the provisions of this section nor any damages recovered by the town hereunder shall be construed to excuse the licensee's faithful performance of any right-of-way agreement or limit the liability for damages of the licensee under this chapter, either to the full amount of the security or otherwise. In addition to its rights to take action under the security, the town may pursue any other remedy provided by law.

(Ord. No. 489 N.S., § 3 (part))

The licensee's facilities shall be placed, constructed, owned, controlled, operated, managed, and used solely and exclusively for the purposes and uses expressly set forth in the licensee's right-of-way agreement. The licensee shall not in any way use, authorize, or allow another person to use any facility subject to the licensee's right-of-way agreement for any purpose or use other than the purposes and uses expressly set forth in the right-of-way agreement.

(Ord. No. 489 N.S., § 3 (part))

Except as otherwise provided in a right-of-way agreement, the licensee shall provide the town with thirty days' prior written notice of any proposed assignment or transfer of a right-of-way agreement or any facility permitted under such agreement. An assignment or transfer shall not be effective until the assignee or transferee agrees in writing to comply with and be subject to all terms and conditions of such agreement and this chapter. Notwithstanding such assignment or transfer, the licensee shall remain liable for any outstanding obligations or liabilities incurred prior to such assignment or transfer.

(Ord. No. 489 N.S., § 3 (part))

(a) Any right-of-way agreement shall be for the nonexclusive use of the public right-of-way. By executing a right-of-way agreement, the town does not agree to restrict the number of right-of-way agreements to be executed that cover all or any part of the town for any person in the same business, a related business, or a competing business as the licensee.

(b) A right-of-way agreement only authorizes the licensee to use the public right-of-way specifically described in one or more encroachment permits issued by the town, and the use of any other public property, whether located within or outside a public right-of-way, is strictly prohibited unless authorized by a separate agreement with the town.

(c) No reference herein, nor in any right-of-way agreement, shall be deemed to be a representation or guarantee by the town that its interest or other right to control the use of the property that is the subject of a right-of-way agreement is sufficient to permit its use for the purposes specified in the agreement. Any right-of-way agreement shall be deemed to grant no more than the rights which the town may have the authority to grant.

(d) Any privilege claimed by the licensee in any public right-of-way shall be subordinate to any prior lawful occupancy or use of the public right-of-way.

(e) The licensee shall have no recourse whatsoever against the town for any loss, cost, expense, or damage arising out of any provision or requirement of this chapter or of any right-of-way agreement executed under this chapter or because of its enforcement.

(Ord. No. 489 N.S., § 3 (part))

(a) Conformance with applicable law. No person shall place, construct, own, control, operate, manage, or use any facility in, upon, above, beneath, or across any public right-of-way without first obtaining all necessary or required permits, agreements, or approvals from the town and all other governmental entities with jurisdiction over the facility or public right-of-way. All facilities shall be placed, installed, or constructed and the right-of-way restored in accordance with the standard specifications adopted by resolution of the town council and any applicable special conditions or provisions imposed by the town council or engineer. All facilities shall be maintained in compliance with such permits, agreements, or approvals, and all applicable statutes, ordinances, rules, regulations, orders, and decisions issued by any federal, state, or local governmental body, agency, or court.

(b) Time, place, and manner. All facilities shall be located, constructed, operated, and maintained in the time, place, and manner that cause the least interference with the public's use of the public right-of-way, as determined by and approved by the engineer.

(c) Key map and detailed improvement plan. Every person subject to this chapter shall cause a key map and detailed improvement plan to be prepared and filed with the engineer for review as part of his application for an encroachment permit which shows all facilities to be located in the public rights-of-way, including the material of construction and horizontal and vertical locations with respect to the property lines and grade lines, existing utilities, and all other pertinent facilities and information required by the engineer. Unless exempted by state law, the key map and detailed improvement plan shall be prepared by a California-registered professional civil engineer. Revisions shall be made to reflect comments of the engineer prior to the issuance of any encroachment permit. Prior to requesting the issuance of an encroachment permit for installation of any facility, the key map and detailed improvement plan shall be filed by the applicant with any other entity that owns, operates, or manages facilities in the affected right-of-way, so that such entities may advise the engineer as to any location, operation, or compatibility problems created by the applicant's proposed use of the right-of-way.

(d) Disclosure. Upon the request of any person who has contracted to perform work on a public right-of-way, persons subject to this chapter shall provide accurate detailed information regarding the location of their existing and proposed facilities in the public right-of-way.

(e) Undergrounding. In those areas and portions of the town where the transmission or distribution facilities of persons providing telephone service, cable service, or electric service are underground, all other facilities shall be constructed, operated, and maintained underground. In the event the applicant's facilities are included within any town undergrounding district area, the applicant shall underground such facilities at the applicant's own cost, unless specifically excepted in the resolution declaring the designated area an underground utility district.

(f) Pole attachments. Where existing poles or other wire-holding structures are available for use, the town council may require such poles and structures to be used if the board determines that the public convenience would be enhanced by such installation, and the terms of the use are just and reasonable.

(g) Above ground installations. Installations of any above ground equipment pursuant to a right-of-way agreement entered into pursuant to this chapter, such as amplifiers and cabinet boxes, shall be subject to the prior approval of the engineer.

(Ord. No. 489 N.S., § 3 (part))

Every person subject to this chapter shall, at his expense, protect, support, temporarily disconnect, relocate, or remove from any public right-of-way, any facility owned, operated, or maintained by such person when required by the engineer due to the use of the right-of-way by any federal, state, or local agency.

(Ord. No. 489 N.S., § 3 (part))

(a) Notice of removal. In the event the use of any facility is discontinued for any reason for a continuous period of six months, or in the event any facility has been installed in any public right-of-way without complying with the requirements of this chapter, or in the event the required right-of-way agreement is terminated or expires, the licensee of each facility shall promptly, upon being given prior written notice, remove from the public right-of-way all such facilities within the time period specified by the notice, other than any facilities which the engineer permits to be abandoned in place. In the event of such removal, the area from which such facility has been removed shall be promptly restored pursuant to an encroachment permit granted by the engineer and in conformance with the standard specifications and any applicable special conditions or provisions. For the purposes of this section, "abandoned" means that the licensee ceases to use the facility and intends to never use the facility again.

(b) Abandonment. Any facility remaining in place one hundred twenty days after the delivery of the notice set forth in this section shall be considered permanently abandoned. The engineer may extend such time as may be necessary under the circumstances. Any facility abandoned in place in the public right-of-way shall be abandoned in such manner as the engineer shall prescribe. Upon permanent abandonment, the facility shall become that of the town and the licensee of such facility shall submit to the engineer an instrument in writing, to be approved by the town attorney, transferring ownership of the facility to the town. Instead of accepting a facility as being abandoned pursuant to this subsection (b), the town may, in its sole discretion, remove the facility at the licensee's sole expense, and the licensee shall promptly reimburse the town for the costs of such removal within thirty days after receiving an invoice from the town.

(Ord. No. 489 N.S., § 3 (part))

Any damage done directly or indirectly to any public right-of-way or other public property or improvement, by any person subject to this chapter, shall be promptly repaired, at the person's sole cost and expense, to the complete satisfaction of the town. Alternatively, the town may, in its sole discretion, choose to perform the repair work itself, in which case the responsible person shall reimburse the town for the full costs of the repair work within thirty days after receiving an invoice from the town.

(Ord. No. 489 N.S., § 3 (part))

Every licensee shall indemnify, defend, and hold harmless the town, its officials, agents, employees, and volunteers against any and all liabilities, losses, claims, actions, causes of action, or demands whatsoever against any of them, including any injury to or death of any person or damage to property or other liability of any nature, including but not limited to attorneys' and expert fees and court costs, arising out of or connected with the performance of a right-of-way agreement, the installation and maintenance of any facilities or the use of any public right-of-way by the licensee or the licensee's employees, officers, officials, agents, transferees, contractors, or subcontractors. This obligation to indemnify the town under this section shall not apply to any liabilities, losses, claims, actions, causes of action, or demands arising from town's sole negligence, wilful misconduct, or criminal acts.

(Ord. No. 489 N.S., § 3 (part))

Every licensee shall procure and maintain a policy of general liability insurance to insure such person and the town against all liability for personal injury, including accidental death, as well as claims for property damage which may arise from or which concern the activities of the person or the existence of the person's facilities in the public right-of-way. The town shall be covered as a primary insured by such policy. The amount of such insurance and any other insurance requirements shall be as provided in the right-of-way agreement and shall be subject to the review and approval of the town attorney.

(Ord. No. 489 N.S., § 3 (part))

(a) No excavation shall be permitted in any public right-of-way that was constructed or resurfaced during the five-year period prior to the proposed excavation. This prohibition shall not apply to emergency excavations approved by the engineer. A proposed excavation shall be considered an emergency if it is necessary to repair or replace underground facilities in order to prevent a disruption of services to customers or prevent injury or damage to life or property. This prohibition also shall not apply to excavations required to provide essential utility services to a property where there are no other reasonable means of providing such services to the property or where the work is mandated by state or federal laws or orders and the excavation cannot be reasonably avoided as determined in both events by the engineer. In the event of an excavation permitted by this subsection (a), the affected right-of-way shall be restored in accordance with the right-of-way restoration standards approved by resolution of the town council.

(b) The special right-of-way restoration standards described in subsection (a) of this section also shall apply to the excavation of right-of-way that has been constructed or resurfaced more than five years before the proposed excavation, provided that the right-of-way has a pavement condition index of seventy or higher as described in the town's pavement management program.

(c) On an annual basis, the town and each utility or other user of the public rights-of-way shall coordinate their current year and to the extent practicable their five-year capital improvement programs for public right-of-way installations in order to reduce the number of excavations that occur. Such coordination shall occur annually at the time and in the manner specified by the engineer. The engineer may submit an annual report to the town council on the results of this coordination process. This report may include recommendations on the timing of town right-of-way projects to accommodate road projects planned by utilities or other users of the public right-of-way.

(d) Prior to submitting an application for a right-of-way agreement, the applicant shall notify in writing, on a form approved by the town, other existing or potential right-of-way users who are shown on the list of users maintained by the town. The notice shall describe the work to be performed, the specific right-of-way that will be used, and the time when such work will be performed. All persons receiving such notice shall have thirty days from the date thereof to inform in writing the town and applicant sending the notice that such person desires to perform work jointly with the applicant. All work jointly performed by other persons shall be performed pursuant to right-of way agreements, encroachment permits, and excavation permits. The failure to timely respond to the notice and timely obtain any required right-of-way agreement and permits before the proposed work commences shall result in the person receiving the notice being prohibited from working in the designated right-of-way for a period of one year from the date that the excavation work has been completed and the right-of-way has been restored to the satisfaction of the town. This subsection (d) shall apply only to work that involves excavation in the public right-of-way. Excavation includes, but is not limited to, trenching and subterranean boring.

(Ord. No. 489 N.S., § 3 (part))

(a) Criminal penalties. Any person who violates any provision of this chapter shall be guilty of a misdemeanor, unless the violation is charged as an infraction.

(b) Termination. If a licensee breaches a right-of-way agreement, the town may, following reasonable notice, an opportunity to cure, and a hearing, terminate the right-of-way agreement or reduce the term of the agreement.

(c) Cumulative remedies. The remedies under this section are nonexclusive and cumulative, and shall be in addition to any other remedy the town may have at law. Without limiting the foregoing, in the discretion of the engineer, violations of this chapter may also be prosecuted pursuant to chapter 31 of the municipal code.

(Ord. No. 489 N.S., § 3 (part))

(a) Nothing in this chapter shall contract away, modify, abridge, impair, or affect, in any way, to any extent, the right of the town to acquire any facility located in the public right-of-way through the exercise of the right of eminent domain.

(b) There is reserved to the town every right and power which the town has under any local, state, or federal law, and every person subject to this chapter, by his use of the public right-of-way, agrees to comply with any actions or requirements of the town in its exercise of such rights or powers.

(c) Neither the execution of a right-of-way agreement nor any provisions of this chapter shall constitute a waiver or bar the exercise of any governmental right or power of the town, including the town's authority to make any proper public use of the public right-of-way.

(d) The town council and the engineer may do all things which are necessary and convenient in the exercise of the town's jurisdiction under this chapter.

(e) The town shall have the right to supervise all construction or installation work performed subject to the provisions of this chapter and make such inspections as it finds necessary to ensure compliance with the terms of this chapter, a right-of-way agreement, an encroachment or excavation permit or any other local, state, or federal law, regulation, permit, or standard.

(Ord. No. 489 N.S., § 3 (part))

In the event of any conflict between the provisions of chapter 19 of this Code and this chapter, the more stringent provisions shall control.

(Ord. No. 489 N.S., § 3 (part))

(a) Any person aggrieved by any determination, interpretation, decision, conclusion, decree, judgment, or similar action taken by any administrative personnel under the provisions of this chapter may appeal the action to the town council.

(b) Appeals of administrative citations shall be filed and processed pursuant to title VI, chapter 31, article VI, of this Code.

(c) All other appeals shall be addressed to the town clerk in writing, and shall follow the procedures set forth in title IV, chapter 16, section 16-66.030 or successor sections thereto of this code, and the current appeal procedures adopted by resolution of the town council; except that: 1) any appeal shall be filed in the office of the town clerk not later than five p.m. of the fifth working day following the date of the action from which an appeal is taken; and 2) the town council shall hold a hearing within sixty days from receipt of the appeal and give the applicant notice thereof by registered or certified mail addressed to the applicant at the address shown on the application.

(Ord. No. 489 N.S., § 3 (part))

(Ord. No. 519 N.S., § 4D., 3-17-2010)