07 LC 34
0887
Senate
Bill 19
By:
Senators Whitehead, Sr. of the 24th, Williams of the 19th, Goggans of the 7th,
Chance of the 16th, Hill of the 4th and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Code Section 32-6-170 of the Official Code of Georgia Annotated, relating
to the authority of the Department of Transportation to pay costs of removal,
relocation, or adjustment of certain utility facilities necessitated by
construction of public roads, so as to allow the department to pay or
participate in the payment of the costs of the removal, relocation, or
adjustment of certain utility facilities of a public utility that is publicly,
privately, or cooperatively owned where the cost of removal, relocation, or
adjustment is deemed to be in the public interest and the work is to be
performed by the department´s contractor; to amend Code Section 32-6-171 of
the Official Code of Georgia Annotated, relating to the authority of the
department to order the removal, relocation, or adjustment of utility facilities
occupying any part of the public road system, so as to provide that a utility
that fails to remove, relocate, or adjust a facility in a timely manner shall be
responsible to the department and its contractors for failure to comply; to
provide for related matters; to provide an effective date; to repeal conflicting
laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Code
Section 32-6-170 of the Official Code of Georgia Annotated, relating to the
authority of the Department of Transportation to pay costs of removal and
relocation of certain utility facilities necessitated by construction of public
roads, is revised as follows:
"32-6-170.
(a)
The department is authorized to pay or participate in the payment of the costs
of
removing,
and
relocating, or
adjusting any of the following facilities
or any component part thereof if they are owned by a municipal corporation,
county, state agency, or by an authority created under the laws of Georgia
pertaining to public utilities, without regard to whether such facilities were
originally installed upon rights of way of the state highway
system,
or
a county road
system,
or a municipal street system, where such
removal,
and
relocation, or
adjustment is made necessary by the
construction or maintenance of any public road by the department: water
distribution and sanitary sewer facilities and systems for producing,
transmitting, or distributing communications, power, electricity, light, heat,
gas, steam, waste, and storm water not connected with highway drainage,
including fire and police signals, traffic-control devices, and street lighting
systems.
(b)
The department
is authorized to pay or participate in the payment of the costs of removing,
relocating, or making necessary adjustments to any of the following facilities
or any component part thereof if they are owned by a public utility that is
publicly, privately, or cooperatively owned, without regard to whether such
facilities were originally installed upon rights of way of the state highway
system, a county road system, or a municipal street system, where the department
has made the determination that (i) such payments are in the best interest of
the public and necessary in order to expedite the staging of the project; and
(ii) the costs of the removal, relocation, or adjustment of such facilities are
included as part of the contract between the department and the
department´s roadway contractor for the project, provided that such
removal, relocation, or adjustment is made necessary by the construction or
maintenance of a public road by the department: water distribution and sanitary
sewer facilities and systems for producing, transmitting, or distributing
communications, power, electricity, light, heat, gas, steam, waste, and storm
water not connected with highway drainage, including fire and police signals,
traffic-control devices, and street lighting systems.
(c)
As to municipal corporations, counties, state agencies,
and
authorities controlled by such municipal corporations, counties, or other state
agencies, and
public utilities that are publicly, privately, or cooperatively
owned, the department is authorized to
waive provisions in existing permits and agreements in conflict with this
article.
(c)(d)
The costs of
removing,
and
relocating, or
adjusting the facilities listed in
subsection (a) of this Code section, which costs the department is authorized to
pay or participate in by this Code section, shall be limited to the costs of
removing,
and
relocating, or
adjusting those facilities which are
physically in place and in conflict with proposed construction and, where
replacement is necessary, to the costs of replacement in kind. That proportion
of the costs representing improvement or betterment in a facility shall be
excluded from the costs eligible for payment or participation by the department
under this Code section, except to the extent that such improvement or
betterment is made necessary by the public road construction or
maintenance.
(d)(e)
All costs incurred by the department under this Code section shall be deemed to
be a part of the costs of the project requiring
removal,
and
relocation, or
adjustment of any of the facilities listed
in
subsection
subsections
(a) and
(b) of this Code
section."
SECTION
2.
Code
Section 32-6-171 of the Official Code of Georgia Annotated, relating to the
authority of the department to order the removal and relocation of utility
facilities occupying any part of the public road system, is revised as
follows:
"32-6-171.
(a)
Any utility using or occupying any part of a public road which the department
has undertaken to improve or intends to improve shall
remove,
and
relocate, or
make the necessary adjustments to its
facility when, in the reasonable opinion of the department, the facility
constitutes an obstruction or interference with the use or safe operation of
such road by the traveling public or when, in the reasonable opinion of the
department, the facility will interfere with such contemplated construction or
maintenance.
(b)
Whenever the department reasonably determines it necessary to have a utility
facility
removed,
and
relocated, or
adjusted, the department shall give to the
utility at least 60 days´ written notice directing
it to
begin the
physical
removal,
and
or
relocation, or
adjustment of such utility obstruction
or
interference.
If such notice
is part of a highway improvement project, it is normally provided at the date of
advertisement or award. However, prior to the notice directing the physical
removal, relocation, or adjustment of a utility facility, the utility and the
department shall adhere to the department´s utility relocation procedures
for public road improvements which shall include but not be limited to the
following:
(1)
The submission by the department to the utility of a letter and set of
preliminary plans for the proposed highway improvement project and the
utility´s submission to the department of written confirmation
acknowledging receipt of the plans;
(2)
The utility´s submission to the department of plans showing existing and
proposed locations of facilities within a reasonable time as specified by the
department in the letter required under paragraph (1) of this subsection;
provided, however, that the time specified by the department shall not be sooner
than 30 days and shall not be greater than 120 days. If the utility fails to
submit to the department the plans within the allotted 120 days, the department
may no longer be required to pay the costs of removal, relocation, or adjustment
as prescribed in subsection (b) of Code Section 32-6-170 even if those costs had
previously been included in the contract between the department and the
department´s contractor; instead, such costs shall be borne by the utility;
and
(3)
The utility´s submission shall include with the plans a work plan in a
manner and time frame established by the department´s written procedures
and instructions.
If
the utility does not thereafter begin
removal,
relocation, or adjustment within
a
reasonable time sufficient to allow for engineering and other procedures
reasonably necessary to the removal and relocation of the utility
facility
the time
specified in the work plan, the department
may give the utility a final notice directing that such
removal,
relocation, or adjustment shall commence
not later than ten days from the receipt of such final notice. If such utility
does not, within ten days from receipt of such final notice, begin to
remove,
or
relocate, or
adjust the facility or, having so begun
removal,
or
relocation, or
adjustment, thereafter fails to complete
the
removal,
or
relocation, or
adjustment within
a
reasonable time
the time
specified in the work plan, the department
may remove
or relocate the same with its own employees or by employing or contracting for
the necessary engineering, labor, tools, equipment, supervision, or other
necessary services or materials and whatever else is necessary to accomplish the
removal or relocation and the expenses of such removal or relocation may be paid
and collected as provided in Code Section
32-6-173
exercise its
right to obtain injunctive relief as provided in Code Section 32-6-175. If
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 30 calendar days after becoming aware of such
additional work or upon receipt of the department´s written notification
advising of such additional work. The utility´s revised work plan shall be
reviewed by the department to ensure compliance with additional
work.
(c)
In addition to the foregoing, the owner of the utility may be responsible for
and liable to the department or its contractors for documented damages resulting
solely from failure on the part of the utility to comply with requirements of
the submitted and approved work plan under the control of the utility. 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 department, then the utility owner may be liable to the
contractor for delay costs incurred by the contractor and approved by the
department which are caused by or which grow out of the failure of the utility
owner to carry out and complete its work in accordance with the approved work
plan or in a timely and reasonable manner if a work plan or revised work plan
was not submitted. Upon notification in writing by the department or its
contractors that the utility is liable for damages or delay costs, the utility
company shall have 45 days from receipt of such letter to either pay the amount
of the damages or delay costs to the department or its contractors or to request
mediation as provided in subsection (d) of this Code section.
(d)
The department´s utility relocation procedures shall include, in addition
to the provisions set forth in subsection (b) of this Code section, provisions
for the establishment of mediation boards to hear and decide disputes that may
arise between the department and the utility concerning (i) a work plan or
revised work plan that has been submitted by the utility but not approved by the
department; (ii) a contractor´s claim for delay costs or other damages
related to the utility´s removal, relocation, or adjustment of its
facilities; and (iii) any other matter related to the removal, relocation, or
adjustment of the utility´s facilities pursuant to this Code section. Such
procedures shall include but not be limited to the following:
(1)
Each mediation board shall consist of one mediator who shall be designated by
the department, one mediator who shall be designated by the utility, and an
independent mediator who shall be mutually selected by the department´s
designee and the utility´s designee and shall serve as the presiding
officer of the mediation board;
(2)
The mediators shall hold a hearing with regard to each dispute that is submitted
to the mediation board for resolution, shall provide notice of the hearing to
each party involved in the dispute, and shall afford each party an opportunity
to present evidence at the hearing; provided, however, that unless the parties
otherwise agree, the provisions of Code Sections 50-13-13, 50-13-14, and
50-13-15, relating to proceedings in a contested case under the Georgia
Administrative Procedure Act, shall not apply to the hearing before the
mediation board;
(3)
The mediators shall decide each issue presented to the mediation board by a
majority vote of the mediators;
(4)
The mediators shall issue a final decision in writing with regard to each
dispute that is submitted to the mediation board for resolution and shall serve
a copy of the final decision on each party involved in the dispute;
and
(5)
All final decisions of the mediation board shall be subject to de novo review in
the Superior Court of Fulton County by way of a petition for judicial review
filed by the department or the utility within 30 days after service of the final
decision.
(e)
The department shall promulgate reasonable regulations governing the mediation
board, including the procedural rules governing the mediation of a contested
case and the creation of a list of qualified mediators. The department shall
consult with the Georgia Utilities Coordinating Council in the development of
these regulations, and these regulations shall be adopted by the department on
or before January 1,
2008."
SECTION
3.
This
Act shall become effective on July 1, 2007.
SECTION
4.
All
laws and parts of laws in conflict with this Act are repealed.