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(A) Purpose. The purpose of this Chapter is:

(1) To recognize the City’s primary role as chief steward of the ROW and its duty to its citizens to recover the costs of managing the ROW and incursions into it;

(2) To clarify and regulate conditions of occupancy and construction for those ROW users occupying space within the City’s ROW given the anticipated increased use of the ROW by various ROW users throughout the country;

(3) To recognize the necessity for sound management practices in light of the increased use of the ROW and the fact that the ROW is a limited resource;

(4) To treat each ROW user equitably and in a competitively neutral and nondiscriminatory manner with considerations that may be unique to the technologies and situation of each particular ROW user;

(5) To minimize disruption, visual impact or inconvenience to the public, and to preserve the public health, safety and welfare; and

(6) To comply with applicable state and federal laws.

(B) Policy. It is the policy of the City to authorize any ROW user to utilize the ROW in a competitively neutral, nondiscriminatory manner that maximizes the efficient use of the ROW while conserving the ROW and minimizing the burden on the ROW, both physically and aesthetically.

(1) Any use of the ROW by a ROW user shall be subject to the terms and conditions of this Chapter, in addition to other applicable federal, state or local requirements.

(2) The right granted to the ROW user to use the ROW is limited to the use that the ROW user has obtained from the City in accordance with this Chapter. These rights are for the exclusive use of the ROW user except where otherwise provided herein, or when authorized by the City.

(3) This Chapter regulates occupancy, use and excavations in the ROW by providing, among other things, for the issuance of permits which grant the authority to utilize and occupy the ROW within the City.

(4) All ROW users shall be subject to all rules, regulations, policies, resolutions, ordinances, and technical specifications now or hereafter adopted or promulgated by the City in the reasonable exercise of its police power and are subject to all applicable laws, orders, rules and regulations adopted by governmental entities now or hereafter having jurisdiction over the ROW relating to permits and fees, sidewalk and pavement cuts, utility location, construction coordination, surface restoration, and other requirements on the use of the ROW. This Chapter shall be construed in a manner consistent with all applicable federal, state, and local laws. The ROW user shall meet or exceed the most stringent technical standards set by regulatory bodies, including the City, now or hereafter having jurisdiction. The ROW user’s rights are subject to the police powers of the City to adopt and enforce ordinances necessary to the health, safety, and welfare of the public. Failure of the ROW user to comply with any applicable law or regulation may result in a forfeiture of any permit or other authorization granted in accordance with this Chapter.

(5) The City Engineer is the principal City official for administration of ROW permits for work and excavations made in the ROW. The City Engineer may delegate any or all of the duties hereunder.

(C) Failure to Enforce. The City’s failure to enforce or remedy any noncompliance of the terms and conditions of this Chapter or of any permit granted hereunder shall not constitute a waiver of the City’s rights nor a waiver of any person’s obligation as herein provided.

(D) Penalties. Any person or entity violating any provision of this Chapter is guilty of a public offense, and upon conviction thereof shall be fined in a sum of not less than Two Hundred Dollars ($200.00) nor more than Five Hundred Dollars ($500.00). Every day that this Chapter is violated shall constitute a separate offense. The violation of any provision of this Chapter is hereby deemed to be grounds for revocation of the permit to operate with the City. The City shall have the authority to maintain civil suits or actions in any court of competent jurisdiction for the purpose of enforcing the provisions of this Chapter. In addition to any other remedies, the City Attorney may institute injunction, mandamus or other appropriate action or proceeding to prevent violation of this Chapter.

(E) Reservation of Rights. In addition to any rights specifically reserved to the City by this Chapter, the City reserves unto itself every right and power which is required to be reserved by a provision of any ordinance under any permit or other authorization granted under this Chapter. The City shall have the right to waive any provision of this Chapter or any permit or other authorization granted thereunder, except those required by federal or state law, if the City determines as follows:

(1) That it is in the public interest to do so; and

(2) That the enforcement of such provision will impose an undue hardship on the person.

To be effective, such waiver shall be evidenced by a statement in writing signed by a duly authorized representative of the City. Further, the City hereby reserves to itself the right to intervene in any suit, action or proceeding involving the provisions herein.

(F) Severability. If any section, subsection, sentence, clause, phrase, or portion of this Chapter is for any reason held invalid or unconstitutional by any court or administrative agency of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions hereof. (Ord. 16-58 § 1, 2016.)