ACPA Concrete Pavement Progress Q2 2020

www.acpa.org Quarter 2, 2020 23 C O N S T R U C T I O N L A W • “Right-of-way user shall promptly . . . remove and relocate its facilities in the right-of-way when it is necessary to pre- vent interference . . . in connection with . . . a present or future local government use of the right-of-way for a public project.” • Engineer who prepares the plans “shall conduct one or more preconstruction meetings to communicate the project design and coordinate utility relocation.” • “If a utility owner fails to provide a work plan, fails to comply with the accepted work plan, or fails to complete the adjust- ment of its facilities, and its failure to perform results in a delay to the highway contractor, the utility owner is liable for all costs and damages incurred as a result of its failure to perform.” 3. County Ordinances Additionally, County ordinances may include owner obligations for utility relocation as well as related contractor payment rights if those obliga- tions are not satisfied. For example, the following ordinance language applies to three counties: • “The Engineer shall notify the utility owner at least six (6) months in advance of the need to relocate existing facilities so the owner can plan the relocation.” • “The Engineer shall provide a second noti- fication to the owner one (1) month before the owner needs to begin the relocation.” • “The utility owner shall begin relocation of the facilities within one (1) week of the second notification.” • “All utilities shall be relocated within one (1) month of the second notification.” Two of these three counties also include an ad- ditional provision in their ordinances which prescribes: The County may charge the utility owner for all costs incurred and requested by a contractor working for the County who is delayed because the relocation is not completed in the scheduled timeframe. 4. State Utility Accommodation Manuals In addition to the above, a number of states have developed state utility accommodationmanuals which establish various utility-related design recommendations and requirements. One im- portant area in these manuals is the use of SUE. The following describes how one state specified how SUE should be used: • “SUE is an integral part of the Project Development Process and should be implemented at each milestone of the project initiating in the early stages of project planning.” • “Utilizing the appropriate level of SUE in order to accurately and comprehensively identify, characterize, and map overhead and underground utilities facilities is an integral component in the success of the utility coordination and project construction.” • “Where the location of underground utilities is considered critical to the design process, SUE consultant services shall be used.” 5. DOT Memoranda Another important source to evaluate is DOT instructional memoranda. I am very familiar with one DOT’s use of such a memorandum to provide detailed instructions to cities and counties on non-primary highway projects. This includes initial utility research, notifications, and a coordination meeting, as well as prelimi- nary plan submittal and utility work plan. This document establishes not only what cities and counties should do, but also the corresponding responsibilities of the utility companies. One notable feature of this memorandum prescribes that during the “initial utility research,” cities and counties “should research available records to determine if any utilities may exist within the project limits.” Possible sources are listed as “pre- viously approved utility permits or agreements.” 6. Franchise and Easement Agreements As noted above, before pubic owners look outward to utility companies for information, they should first look inward at their own records. In fact, two of the most accurate and reliable documents are the owner’s franchise and easement agreements with utility companies. While, inmy experience, public owners fail to review these documents, contractors should request these agreements prior to the pre-construction meeting. This is critical since many of these agreements include language which: • Requires the utility company to relocate its lines within a stated period of time after the owner requests this; and/or • Makes the utility company liable for the ex- tra construction costs incurred for failure to relocate within the stated period of time. While I have only heard of one contractor do- ing this, I was told doing this has really helped the contractor mitigate the impact of utility- related delays. 7. Contract Provisions In addition to looking outside of the contract for utility-related rights and obligations, the start- ing point should be what is expressly set forth in the contract. Some contracts expressly provide payment for late utility relocation. • Some DOT specs provide for payment of delay/disruption extra costs if “[u]tility owners fail to relocate or adjust their facilities as required by the Department.” • Other DOTs only provide payment in the event that the DOT was “negligent” in connection with the late utility relocation as well as unmarked/mismarked utilities. • Payment may also be available in standard industry general conditions, such as un- der the “Underground Facilities” clause. Conclusion In summary, contractors need a strategy to pro- tect themselves against late utility relocation, as well as unmarked and mismarked utilities. This strategy should include looking beyond what the contract expressly provides. Indeed, as explained above, many utility-related requirements are set forth outside of the contract documents. As a consequence, unless and until contractors access and learn about these documents, they will be ill-prepared to exercise their rights to obtain additional compensation and time extensions for utility-related issues. Thomas Olson is the founding partner of Olson Construction Law. Tom’s commitment is to provide guidance on how to resolve issues on the jobsite, not in the courtroom. Tom has worked on highway heavy projects throughout much of the United States for more than thirty years. A prolific speaker and writer as well as attorney, his expertise is in concrete and asphalt paving, utility, earthwork and bridge construction, schedule analysis, material testing, and the technical and legal obligations of both engineers and contractors. ABOUT THE AUTHOR