§ 32-27. Use of the right-of-way by all ROW-users.

(a)

Subordination to unified government use. The ROW-user's use of the right-of-way shall in all matters be subordinate to the unified government's use or occupation of the right-of-way. Without limitation of its rights, the unified government expressly reserves the right to exercise its governmental powers now and hereafter vested in or granted to the unified government.

(b)

Responsibilities of ROW-users.

(1)

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.

(2)

The unified government 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 behalf of the unified government.

(3)

The ROW-user shall be responsible to the unified government and its agents, representatives, and authorized contractors for all damages suffered by them including, but not limited to, delay damages, repair costs, 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.

(4)

If another person, a subcontractor or otherwise, is doing work for the ROW-user, the person doing the work and the ROW-user shall both be liable and responsible for all damages, obligations, and warranties described in this article.

(c)

Responsibilities of ROW-adjacent property owners.

(1)

All persons or entities owning land adjacent to public right-of-way or easement, upon which improvements are located, are responsible for the maintenance and repair of such improvements, including but not limited to the sidewalks, driveways, culverts, ditch maintenance, driveway approach, private street, private sewer, and tree trimming.

(2)

Whenever sidewalks are in need of repair or otherwise a safety hazard, the unified government engineer may issue a notice to repair to the owner of the property adjacent to the sidewalk. The notice to repair shall inform the owner of the required repair or maintenance of the sidewalk and the maximum time period of which the owner will be allowed to make such repairs. Such notice to repair shall give owner not less than five days to make the required repairs, and no more than 60 days.

(3)

If the owner fails to comply with the requirements of the notice to repair within the time specified in the notice, the unified government engineer may have such repairs made by the unified government. The unified government engineer shall report the actual construction cost of repairs to the unified government clerk for purposes of assessment in accordance with paragraph (4), below.

(4)

The unified government clerk, at the time of certifying other unified government taxes, shall certify unpaid construction costs for sidewalk repairs plus an administrative cost of five percent of the unpaid repair costs. The unified government clerk shall extend the total of such certified and assessed costs, including five percent administrative fee, on the tax roll of the county and the same shall constitute a special assessment against the lot or parcel of land abutting the sidewalk. The sidewalk repair costs shall be paid from the general fund or other proper fund of the unified government; and such fund shall be reimbursed when payments therefore are received or when such assessments are collected and received by the unified government.

(d)   

Disruptions of right-of-way.

(1)

General standards.

a.

Except when the unified government has issued a permit or except as otherwise provided by this article, no person shall disrupt the right-of-way.

b.

If the ROW-user is responsible for creating a condition dangerous to the public health and safety, the unified government engineer may order immediate cessation of activity or institution of measures to correct the dangerous condition.

c.

No person shall maintain any unsecured opening in the right-of-way that presents a hazard to the public.

(2)

Abutting owner or occupier. No person owning or occupying land abutting on the right-of-way shall construct, maintain, or permit in or on the right-of-way any fixed structure, material, or object which presents a hazard to the traveling public or which prevents the unobstructed flow of stormwater along the gutter of any street or which causes the adjacent pavement to deteriorate. If the unified government engineer deems any structure, material, or object a hazard, he may require the property owner or occupier to remove it.

(3)

Tree trimming. A ROW-user engaging in tree trimming in the right-of-way shall obtain a permit and shall otherwise adhere to the provisions of this article. Owners of property are not required to obtain a permit to trim trees in the right-of-way adjacent to their property.

(e)

Sidewalks, curbs, driveways, and culverts.

(1)

Construction subject to article. Construction, alteration, repair, reconstruction, or restoration of sidewalks, curbs, driveways, and culverts shall require a permit and shall otherwise be subject to this article.

(2)

Culverts. Owners or occupiers of property abutting on uncurbed streets shall provide culverts to drain the surface water on such streets and adjoining property.

(f)

Hauling.

(1)

Hauling or moving any earth, excavated rock, rubbish, or used building and construction materials, regardless of where it originated, shall require a permit and shall otherwise be subject to this article.

(2)

All vehicles used to move or transport such materials shall have proper tailgates and sideboards and covering as determined by the unified government engineer.

(3)

If the earth, excavated rock, rubbish, or used building or construction materials are to be disposed of in the city, the disposal shall take place only between 7:00 a.m. and half an hour prior to sunset, Monday through Saturday. No such disposal shall take place within the city on Sundays unless prior written permission is granted by the unified government engineer.

(4)

Every hauling permit shall designate the route over which the material may be moved, and the material shall not be moved over any other street.

(Code 1988, § 32-27; Ord. No. O-104-00, § 7, 11-16-2000; Ord. No. O-63-17 , § 1, 11-16-2017)