§ 59-68. Protection of the public.

(a)

It shall be the responsibility of the ROW-user to take adequate measures to protect and defend its facilities in the right-of-way from harm and damage.

(b)

The city shall not be liable for any damage to or loss of any of the ROW-user's facilities within the right-of-way as a result of or in connection with any construction, excavation, grading, filling or work of any kind, including public improvements by or on the behalf of the city, except to the extent caused by the negligent, willful, intentional, or malicious acts or omissions of the city.

(c)

The ROW-user shall be responsible to the city and its agents, representatives, and authorized contractors for all damages suffered by them including, but not limited to delay damages, repair costs, down time, construction delays, penalties or other expenses of any kind arising out of the failure of the ROW-user to timely perform any of its obligations under this article to the extent caused by the acts or omissions of the ROW-user.

(d)

The city or its authorized contractors shall be responsible for taking reasonable precautionary measures including calling for facility locations when constructing its public improvements.

(e)

Any ROW-user who for any purpose makes or causes to be made any excavation in, upon, under, through or adjoining any street, sidewalk, alley or other right-of-way, and shall leave any part or portion thereof open, or shall leave any part or portion thereof disrupted with rubbish, building or other material during construction or the night time, shall cause the same to be enclosed with good substantial and sufficient barricades or drums equipped with the appropriate type warning lights and orange safety fencing material which is properly secured around the excavation or the disruption.

(f)

Whenever a ROW-user shall excavate the full width of any street, sidewalk, alley, driveway approach or other right-of-way, it shall be its duty to maintain an adequate passage for vehicles and pedestrians across or around the excavation until it is refilled as specified.

(g)

Any excavation left open overnight on any thoroughfare or collector type street shall be securely covered. The ROW-user assumes the sole responsibility for maintaining proper barricades, plates, safety fencing or lights as required from the time of opening of the excavation until the excavation is surfaced and opened for travel.

(h)

The public works director, upon the review and approval of a plan and details for trimming trees in the right-of-way, may grant permission by permit to any ROW-user to trim trees upon and overhanging the right-of-way so as to prevent such trees from coming in contact with the facilities of the ROW-user.

(i)

In the event the ROW-user severely disturbs or damages the root structure of any tree in the right-of-way to the detriment of the health and safety of the tree, the ROW-user will be required to remove and replace the tree at the ROW-user's cost. The type and size of such replacement tree shall be reasonably determined by the public works director. Further, in review of the ROW-user's plan, public works director, in his discretion, may require the ROW-user to directionally bore around any tree in the right-of-way.

(j)

Upon the appropriate request of any person having satisfied city procedure and ordinances, the ROW-user shall remove, raise or lower its facilities temporarily or to permit the moving of houses or other structures in accordance with the provisions of this Code.

(Code 1967, § 24-172; Ord. No. 1588, § 5, 1-28-2008)