ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2804
(By Delegates Hrutkay, Crosier, Manchin and Martin)
[Passed March 10, 2007; in effect ninety days from passage.]
AN ACT to amend and reenact §17-4-17b of the Code of West Virginia,
1931, as amended, relating to time schedules for utility
relocation on highway projects; placing liability and costs on
the utility company for failure to comply with proper removal
notice; allowing the division of highways to reimburse utility
companies for subsequent relocations due to plan change after
a project is let to construction; and providing for meetings
between division of highways and utilities.
Be it enacted by the Legislature of West Virginia:
That §17-4-17b of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 4. STATE ROAD SYSTEM.
§17-4-17b. Relocation of public utility lines on highway
construction projects.
(a) Whenever the division reasonably determines that any public utility line or facility located upon, across or under any
portion of a state highway needs to be removed, relocated or
adjusted in order to accommodate a highway project, the division
shall give to the utility reasonable notice in writing as mutually
agreed, but not to exceed eighteen months directing it to begin the
physical removal, relocation or adjustment of such utility
obstruction or interference at the cost of the utility, including
construction inspection costs and in compliance with the rules of
the division and the provisions of article three, chapter twenty-
nine-a of this code.
(b) If the notice is in conjunction with a highway improvement
project, it will be provided at the date of advertisement or award.
Prior to the notice directing the physical removal, relocation or
adjustment of a utility line or facility, the utility shall adhere
to the division's utility relocation procedures for public road
improvements which shall include, but not be limited to, the
following:
(1) The division will submit to the utility a letter and a set
of plans for the proposed highway improvement project;
(2) The utility must within a reasonable time submit to the
division a written confirmation acknowledging receipt of the plans
and a declaration of whether or not its facilities are within the
proposed project limits and the extent to which the facilities are
in conflict with the project;
(3) If the utility is adjusting, locating or relocating
facilities or lines from or into the division's right-of-way, the utility must submit to the division plans showing existing and
proposed locations of utility facilities.
(4) The utility's submission shall include with the plans a
work plan demonstrating that the utility adjustment, location or
relocation will be accomplished in a manner and time frame
established by the division's written procedures and instructions.
The work plan shall specify the order and calendar days for
removal, relocation or adjustment of the utility from or within the
project site and any staging property acquisition or other special
requirements needed to complete the removal, relocation or
adjustment. The division shall approve the work plan, including
any requests for compensation, submitted by a utility for a highway
improvement project if it is submitted within the established
schedule and does not adversely affect the letting date. The
division will review the work plan to ensure compliance with the
proposed improvement plans and schedule.
(c) If additional utility removal, relocation, or
adjustment work is found necessary after the letting date of the
highway improvement project, the utility shall provide a revised
work plan within thirty calendar days after receipt of the
division's written notification of the additional work. The
utility's revised work plan shall be reviewed by the division to
ensure compliance with the highway project or improvement. The
division shall reimburse the utility for work performed by the
utility that must be performed again as the result of a plan change
on the part of the division.
(d) Should the utility fail to comply with the notice to
remove, relocate or adjust, the utility is liable to the division
for direct contract damages, including costs, fees, penalties or
other contract charges, for which the division is proven to be
liable to a contractor caused by the utility's failure to timely
remove, relocate or adjust, unless a written extension is granted
by the division. The utility shall not be liable for any delay or
other failure to comply with a notice to remove, relocate or adjust
that is not solely the fault of the utility, including but not
limited to the following:
(1) The division has not performed its obligations in
accordance with the division's rules;
(2) The division has not obtained all necessary rights-of-way
that affect the utility;
(3) The delay or other failure to comply by the utility is due
to the division's failure to manage schedules and communicate with
the utility;
(4) The division seeks to impose liability on the utility
based solely upon oral communications or communications not
directed to the utility's designated contact person;
(5) The division changes construction plans in any manner
following the notice to remove or relocate and the change affects
the utility's facilities; or,
(6) Other good cause, beyond the control of and not the fault
of the utility, including but not limited to, labor disputes,
unavailability of materials on a national level, act of God, or extreme weather conditions.
(e) In order to avoid construction delays and to create an
efficient and effective highway program, the division may schedule
program meetings with the public utility on a quarterly basis to
assure that schedules are maintained.