§ 39-2-15 - Interference with construction – Notice.
SECTION 39-2-15
§ 39-2-15 Interference with construction– Notice. – (a) No utility shall interfere with, or delay the progress of work under anycontract with the state department, agency, division or board, for theconstruction, reconstruction, or improvements of any highway, street, road,railroad grade crossing, bridge, tunnel, underpass, overpass, or other statecontract work, by failing to remove or relocate its poles, wires, cables,conduits, pipes, or any other facilities or structures within the time scheduletherefor by an agreement or under the terms of an agreement between thedepartment, agency, division or board and the utility, or, if no time is fixedby an agreement or under the terms of such an agreement, within the time fixedby the department, agency, division, or board, by notice served upon theutility by the state department, agency, division, or board.
(b) If the notice is utilized, it shall describe the publicimprovement and the geographical location thereof, the date of commencement,and the date of completion, if any, provided for by the contract, thecontractor's name and address, the manner in which and the extent to which thefacilities and structures of the utility obstruct or prevent the contractorfrom progressing or performing the work comprehended by the contract, and shallfix the date or time within which the utility is required to remove or relocateits facilities or structures, specifying the same, in order to provide thecontractor with the site when required by the contractor for progressing orperforming the work pursuant to the state contract. The notice shall be inwriting and shall be served upon the utility either personally or by certifiedmail at its principal office or place of business in the county where the workunder the contract is to be performed, or, if there is no principal office orplace of business in the county, at the nearest principal office or place ofbusiness of the utility, outside of the county.
(c) In the event the utility to whom the notice described insubsection (b) of this section was directed is, for any reason, unable, withinthe prescribed period, to remove or relocate the facilities or structuresspecified in the notice, the utility shall immediately advise the department,agency, division, or board and the contractor, in writing, of the inability,and in the same communication so advise the department, agency, division, orboard, and the contractor of the approximate date that the removal orrelocation of facilities or structures could be effected; and shall furtherstate the basis for the inability of the utility to remove or relocate thefacilities or structures within the time specified by the notice served thereonby the department, agency, division, or board. The department, agency,division, or board, after examining and considering the utility's basis forestablishing a different schedule for the removal or relocation, shall, if itsbasis is reasonable, establish and notify the utility of a revised schedule forcompleting the removal or relocation.
(d) In cases where the utility has been reimbursed forremoval, relocation, replacement, or reconstruction, a utility failing tocomplete the removal or relocation of the structures or facilities within aperiod of thirty (30) days beyond the time fixed therefor by the latest timeschedule established in accordance with this section, shall be liable andresponsible to any contractor for any damages, direct or consequential,sustained by any contractor as the result thereof, in an action to be broughtby the contractor against the utility in a court of competent jurisdictionwithin three (3) years from the time fixed for the removal or relocation of thestructures or facilities. If an action is commenced against a utility, asheretofore provided, the utility may interpose in its answer in the action anydefense available under the provisions of the civil practice law and rules. Theunreasonableness of the time schedule imposed by the state department, agency,division, or board shall be an absolute defense by the utility to any action bythe contractor. If, in any action, the utility is found to owe nothing to thecontractor, or if an offer of settlement is made by the utility which is notaccepted by the contractor, and the resulting verdict against the utility isless than the offer of settlement, then in either event, the total cost of theutility of litigation, including reasonable attorney's fees, shall be paid tothe utility by the contractor.