H. B. 2804
(By Delegates Hrutkay, Crosier,
Manchin and Martin)
[Introduced February 2, 2007; referred to the
Committee on Roads and Transportation then the Judiciary.]
A BILL to amend and reenact §17-4-17b of the Code of West Virginia,
1931, as amended, relating to eliminating 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
sixty days' written notice
as mutually
agreed, 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
such 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 twenty days, 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.
These utility plans must
be submitted to the division within thirty days of receipt of the
highways plans or such longer time as may be provided in the letter
accompanying the highway plans.
(4) The utility's submission shall include with the plans a
working time analysis 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.
Such working time 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
compensable work or other special requirements
needed to complete the removal, relocation or adjustment. The
division
may 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.
(b) If the utility does not thereafter begin removal within
the time specified in the work plan, the division may give the
utility a final notice directing that such removal shall commence not later than ten days from the receipt of such final notice. If
the utility does not, within the ten days from receipt of the final
notice, begin to remove or relocate the facility or, having so
begun removal or relocation, thereafter fails to complete the
removal or relocation within the time specified by the work plan,
the division may remove or relocate the same with its own employees
or by employing or contracting for the necessary engineering,
labor, tools, equipment, supervision, materials and other necessary
services to accomplish the removal or relocation, and the expenses
of such removal may be paid and collected as provided at law. 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 becoming aware of such additional work
or upon receipt of the division's written notification advising of
such additional work. The utility's revised work plan shall be
reviewed by the division to ensure compliance with the highway
project or improvement.
(c)
In addition to the foregoing, the owner of the utility
shall be responsible for and liable to the division or its
contractors for damages resulting from its failure to comply with
the submitted and approved work plan. If the utility owner fails
to provide a work plan or fails to complete the removal,
relocation, or adjustment of its facilities in accordance with the work plan approved by the division, the owner shall be liable to
the contractor for all delay costs and liquidated damages incurred
by the contractor which are caused by or which grow out of the
failure of the utility owner to provide a work plan or a revised
work plan or to complete its work in accordance with the approved
work plan. The division may withhold approval of permits for
failure of the utility owner to comply with the requirements of
this section. 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; except that 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.
NOTE: The purpose of this bill is to eliminate time schedules
for utility relocation on highway projects and to place liability
and costs on the utility company for failure to comply with proper
removal notice. Under the bill, the division of highways is
required to reimburse utility companies for subsequent relocations
due to plan change after a project is let to construction and it
provides for meetings between division of highways and utilities to
maintain schedules.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.