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A. Authority To Direct: The public works director may direct any person owning or maintaining facilities or structures in the public way to alter, modify or relocate such facilities or structures as the public works director may require as set forth herein. Sewers, pipes, drains, tunnels, conduits, pipe driveways, vaults, trash receptacles and overhead and underground gas, electric, telephone, telecommunications and communication facilities shall specifically be subject to such directives. The person owning or maintaining the facilities or structures shall, at their own cost and expense and upon reasonable written notice by the city, promptly protect, or promptly alter or relocate such facilities or structure, or part thereof, as directive of the city. In the event that such person refuses or neglects to conform to the directive of the city, the city shall have the right to break through, remove, alter or relocate such part of the facilities or structures without being liable to such owner or person maintaining the facility or structure. Such person shall pay to the city all costs incurred by the city in connection with such work performed by the city, also including design, engineering, construction, materials, insurance, court costs and attorney fees.
B. Conditions Authorizing: Any directive of the public works director shall be based upon one of the following:
1. The facility or structure was installed, erected or is being maintained contrary to law or determined by the public works director to be structurally unsound or defective;
2. The facility or structure constitutes a "nuisance" as defined under state statute;
3. The permit under which the facility or structure was installed has expired or has been revoked;
4. The public way is about to be repaired or improved and such facility or structures may pose a hindrance to construction; or
5. The grades or boundaries of the public way are to be altered or changed.
C. Police Power: Any directive of the public works director under this section shall be under and consistent with the city's police power. Unless an emergency condition exists, the public works director shall make a good faith effort to consult with the owner or person maintaining the facility or structure regarding the condition that may result in a removal or relocation of facilities in the public way to consider possible avoidance or minimization of removal or relocation requirements and provide the directive as far enough in advance of the required removal or relocation to allow the owner or person maintaining the facility or structure a reasonable opportunity to plan and minimize cost associated with the required removal or relocation.
D. Exception: This obligation does not apply to facilities or structures originally located on private property pursuant to a private easement, which property was later incorporated in the public way, if that prior private easement grants a superior vested right.
E. Penalty For Failure To Comply: Any person owning or maintaining facilities or structures in the public way who fails to alter, modify or relocate such facilities or structures upon notice to do so by the public works director shall be guilty of a class B misdemeanor and upon conviction, subject to penalty as provided in section 1-4-1 of this code. All costs of alteration, modification or relocation shall be borne by the person owning or maintaining the facilities or structures involved.
F. Emergency Action By The City: The city may, at any time, in case of fire, disaster or other emergency, as determined by the city in its reasonable discretion, cut or move any parts of the system and appurtenances on, over or under the public way, in which event the city shall not be liable therefor to any person. The city shall notify the owner or person maintaining the facility or structure 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 subsection.
G. Indemnification And Insurance: The owner or the person maintaining the facility or structure assumes liability for and agrees to indemnify Clearfield City from and against any and all liability of any nature imposed upon, incurred by, or asserted against the city by virtue of any undertaking under this section. (Ord. 2006-08, 6-13-2006)