§ 43-1-1411 — Project specific utility relocation agreements

(1)
Notwithstanding any other provision of law, if a utility company enters into a project
specific utility relocation agreement with the department, the department may:

(a) Pay for the performance of the design work to relocate a utility
company's facilities that are affected by the scope of the design-build
transportation project;

(b) Advance funds for the performance of the construction work to relocate
a utility company's facilities affected by the scope of the design-build
transportation project; except that any advance of funds pursuant to this paragraph
(b) shall be subject to full repayment by the utility company with interest based on
the cost incurred by the department for advancing the funds; and

(c) Perform any utility relocation work through the contractor for the design-build transportation project in accordance with the utility company's specifications
for the relocation work and subject to the utility company's prior review and written
approval of the relocation work to assure that the work meets the quality standards
and construction methods of the company. The performance of any relocation work
shall also be subject to inspection and approval by the utility company, during the
performance of the work and prior to completion of the relocation work, and the
department shall take appropriate measures to ensure service continuity.

(2) It is the intent of the general assembly that the department work with the
utility company to come to a mutually satisfactory agreement with the utility
company so that the design-build transportation project may proceed to be
constructed in an efficient manner without causing interruption of utility services. If
the utility company is unable to reach a project specific utility relocation agreement
with the project manager negotiating such agreement for the department, the
utility company shall be provided the opportunity to address its concerns with the
department's district engineer, who shall give due consideration to all issues raised
by the utility company and shall strive to accommodate reasonable modifications
requested by the utility company to the department's proposed project specific
utility relocation agreement. If an agreement cannot be reached between the
district engineer and the utility company, the executive director of the department
shall review the disputed issues and seek to resolve the dispute. If the executive
director is unable to reach agreement with the utility company, the executive
director shall prepare a written report setting forth the reasons that the dispute
could not be resolved and shall provide such report to the utility company within
three business days.

(3) For any utility company that chooses not to enter into a project specific
utility relocation agreement with the department for the performance of utility
relocation work:

(a) The department may direct the utility company to perform or allow the
performance of the utility relocation work within the performance schedule for the
design-build transportation project;

(b) The utility company shall pay for damages caused by the company's
delay in the performance of the utility relocation work or interference with the
performance of the design-build transportation project by other contractors,
including, but not limited to, payments made by the department to any third party
based on a claim that performance of the design-build transportation project was
delayed or interfered with as a direct result of the utility company's failure to timely
perform the utility relocation work; except that damages resulting from delays in
the performance of the utility relocation work caused by a force majeure shall not
be charged to the utility company; and

(c) The department may withhold issuance of a permit for the location or
installation of other facilities to a utility company until the company pays the
department damages caused by the company's delay in the performance of the
relocation work or interference with the performance of the design-build
transportation project by any other contractor. Any person aggrieved by an action
of the department in denying a permit may apply to a court of competent
jurisdiction for appropriate relief pursuant to the Colorado rules of civil procedure
or section 24-4-106, C.R.S.

(4) The department shall provide written notice to any utility company of a
design-build transportation project that will require the relocation of the company's
facilities as soon as practicable following the environmental clearance for the
project. The notice shall include all available and relevant information concerning
the project, including the performance schedule for the project within which the
utility relocation work must be completed in order to coordinate with and avoid
delay in the performance of the project.

(5) When feasible, the department shall provide a replacement easement for
a utility company whose facilities are to be relocated from an easement owned by
the utility company to accommodate a design-build transportation project, and the
department shall condemn the replacement easement when necessary. If no
replacement easement is provided, the department shall fund the initial relocation
of the easement owner's facilities and shall also fund all future relocations of those
utility companies whose facilities occupy the easement at the time of the design-build transportation project at the department's sole expense in lieu of
compensating the utility companies for the loss of the easement. The utility
company shall quitclaim to the department that portion of the easement that is
replaced or extinguished.

(6) Nothing in this section or in section 43-1-1412 shall change the authority,
rights, responsibilities, or obligations of the department or of any owner of real or
personal property in an eminent domain proceeding or any existing statutory or
case law applicable to eminent domain proceedings.

Legislative History

Source: L. 2000: Entire section added, p. 1613, � 3, effective June 1.