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Introduced Version Senate Bill 443 History

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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 443

(By Senators Bowman, White, Fanning, Kessler, Love, McKenzie and Plymale)

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[Introduced February 2, 2007; referred to the Committee on Transportation and Infrastructure; and then to the Committee on Finance.]

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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.

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