SB 445 — Allowing DOH acquire real or personal property for utility accommodation

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Red = new code to be enacted WEST virginia legislature regular session CommitteeOriginating Substitute for Senate Bill 445 By Senators Boso, Swope, Gaunch, Jeffries, Rucker, Maroney, Plymale, Maynard, and Beach [Originating in the Committee on GovernmentTransportation Organization;and Infrastructure;

reportedReported on FebruaryJanuary 23,31, 2018]               A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §17-2A-17a;

and to amend saidand codereenact by§17-4-17b addingof theretosaid twocode, newall sections,relating designatedto §17-4-17butility andrelocation; §17-4-17e;

andstating tolegislative amendfindings; said code by adding thereto a new section, designated §24-2-20, all relating to public utilities;

creatingdefining newterm; legislative findings;

definingauthorizing athe newDivision term;of Highways to acquire real or personal property for utility accommodation;

establishingauthorizing a method by which the Commissionerdivision ofto thelease Divisionreal ofproperty Highways may acquire certain rights-of-way and easements for the purpose of increasing public access to utilities;

establishingallowing a procedure for the Divisiondivision of Highways to leasepay acquisitionsfor toutility utilitiesrelocation forcosts fairsubject marketto value;reimbursement agreement;

andspecifying establishingmethods aof cost-sharingpreliminary procedureengineering fordesign determiningwork howcompletion relocationand costsutility arerelocation toconstruction bework paidpayment; by the utility.

and providing legislative and emergency rule-making authority.

CHAPTER 17.

ROADS AND HIGHWAYS.

(a) The Legislature finds that it is in the public interest for utility facilities to be accommodated on the right-of-way of state highways when such use and occupancy of the highway right-of-way do not adversely affect highway or traffic safetysafety, or otherwise impair the highway or its aesthetic quality, and do not conflict with the provisions of federal, state, or local laws, legislative rules, and regulations or agency policies.

Utilities provide an essential service to the generalpublic, publicand and, as a matter of sound economic public policy and law, utilities have used state road rights-of-wayright-of-way for transmitting and distributing their services.

(b) “Utility” means, for purposes of this chapter, privately, publicly, or cooperativelycooperatively-owned owned line, facility, or system for producing, transmitting, or distributing communications, data, information, video services, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, stormwaterstorm water not connected with highway drainage, or any other similar commodity, including any fire or police signal system or street lighting system, which directly or indirectly serves the public.

The term “utility” also includes those similar facilities whichthat are owned or leased by a government agency for its own use,use or otherwise dedicated solely to governmental use.

(c) In addition to all other powers given and assigned to the commissioner in this chapter, the commissioner may acquire, either temporarily or permanently, in the name of the Division of Highways, all real or personal property, public or private, or any interests or rights therein, including any easement, riparian right, or right of access, determined by the commissioner to be necessary for present or presently foreseeable future utility accommodation purposes.

(d) Notwithstanding any provision of this article, the commissioner may lease real property held by the Division of HighwaysHighways, or any interest or right in the property, including airspace rights, if any, forto theaccommodate purpose of accommodating any utility that has requested a lease if the commissioner finds, in his or her sole discretion, that entering into the lease agreement with the utility is in the public interest.

 The term of any accommodation lease authorized by this section shall not exceed 30 years.  Neither competitive bids nor public solicitations are required prior to entering into a utility accommodation lease.

Any utility accommodation lease shall require the utility to pay fairfair-market market value for the real property interest as determined by the commissioner using common valuation methods,methods. which shall include consideration of the use of the property for utility accommodation purposes:

Provided,All Thatmoneys amountsreceived paidfrom forutility propertyaccommodation damageleases byshall thebe divisionpaid ininto athe condemnationState caseTreasury shalland notcredited beto considered in the commissioner’sState determinationRoad ofFund. fair market value.

The commissioner shall have the option to charge and collect a one-time lease payment or fixed installment lease payments from a utility in connection with an accommodation lease.  All moneys received from utility accommodation leases shall be paid into the state Treasury and credited to the State Road Fund.  The provisions of this subsection are completely voluntary and shall not be interpreted to require any utility to lease any real property, or any interest or right in the property, from the commissioner.   ARTICLE 4.

Prior to the notice directing the physical removal, relocation, or adjustment of a utility line or facility, the utility shall adhere to the division’sdivision's utility relocation procedures for public road improvements which shall include, but not be limited to, the following:

(3) If the utility is adjusting, locating, or relocating facilities or lines from or into the division’sdivision's right-of-way, the utility must submit to the division plans showing existing and proposed locations of utility facilities.

(4) The utility’sutility'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’sdivision's written procedures and instructions.

(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 30 calendar days after receipt of the division’sdivision's written notification of the additional work.

The utility’sutility's revised work plan shall be reviewed by the division to ensure compliance with the highway project or improvement.

(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’sutility'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, relocaterelocate, 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’sdivision's rules;

(3) The delay or other failure to comply by the utility is due to the division’sdivision'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’sutility'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’sutility's facilities;

oror, (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.

(f) If a utility that is required by law to bear all or a portion of its own relocation costs elects to pursue a reimbursement agreement with the division pursuant to this subsection and provides the division with sufficient evidence to demonstrate that the utility is not adequately staffed, equipped, or capitalized to perform such relocation work with its own forces or contractors at a time convenient to and in coordination with the associated highway project, the division may pay for the associated relocation costs, includingincluding, but not limited toto, design engineering, design review, construction, and inspection costs, out of the State Road Fund:

Provided, That the utility shall reimburse the division in full for such portion of the relocation costs that it is required by law to bear within two years of the completion of the highway project.

The division shall deduct from the utility’s reimbursement amount any costs resulting from work performed asbecause a result of plan changes made by the division.

Before the division may pay any relocation costs, the division and the utility shall enter into a written reimbursement agreementagreement.  containing(1) termsPreliminary thatengineering aredesign mutuallywork acceptableassociated with utility relocations to be paid for by the division andpursuant theto utilitya seekingreimbursement agreement shall be completed by any of the reimbursementfollowing agreement.methods:

 (A) (1)The Preliminarydivision’s engineeringor design work associated with utility relocations to be paid for by the divisionutility's pursuantinternal toforces; a reimbursement agreement shall be completed by any of the following methods: