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A. Required: The city engineer 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 city engineer may require as set forth herein. Sewers, pipes, drains, tunnels, conduits, pipe driveways, vaults, trash receptacles and overhead and underground gas, electric, telephone, telecommunication 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 structures, or part thereof, as directed by 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 liability to such person. Such person shall pay to the city all costs incurred by the city in connection with such work performed by the city, including also design, engineering, construction, materials, insurance, court costs and attorney fees.
B. Considerations For Directives: Any directive by the city engineer shall be based upon of the following:
1. The facility or structure was installed, erected or is being maintained contrary to law, or determined by the city engineer 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 The permit under which the facility or structure was installed has expired or has been revoked;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 facilities or structures may pose a hindrance to construction; or
5. The grades or lines of the public way are to be altered or changed.
C. Consistent With Police Power Of City: Any directive of the city engineer under this section shall be under and consistent with the city's police power. Unless an emergency condition exists, the city engineer shall make a good faith effort to consult with the person regarding any 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 person 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 into the public way, if that prior private easement grants a superior vested right. (1999 R.O. § 23-1-10)
E. Failure To Comply; Penalty: 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 city engineer, may be subject to penalty as provided in title 1, chapter 4 of this code, and/or the alternative hearing and enforcement program as provided in title 1, chapter 4, article A of this code. All costs of alteration, modification or relocation shall be borne by the person owning or maintaining the facilities or structures involved. (1999 R.O. § 23-1-10; amd. 2008 Code)
F. Emergency Conditions: 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 a person. The city shall notify a person 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. (1999 R.O. § 23-1-10)