Effective 01 Jan 2006, see footnote

227.558. Damages for failure to respond or correct project plans or failure to relocate — exceptions — removal and relocation at expense of owner. — 1. If the owner of a utility facility fails to provide the responses or corrections to project plans required by sections 227.553 to 227.556, the commission may recover from the owner damages in the amount of up to one hundred dollars per day for each day the required act is not completed.

2. If the owner fails to provide a relocation plan or fails to timely relocate utility facilities in accordance with the relocation plan as required by section 227.555, the commission may recover from the owner damages in the amount of up to one thousand dollars per day for each day the required act is not completed.

3. The damages authorized by subsections 1 and 2 of this section may be recovered through actions brought by the chief counsel to the commission, or may be referred to the attorney general for appropriate action. An action to collect the damages authorized by this section shall be brought in a court of appropriate jurisdiction. All damages collected under this section shall be deposited in the state road fund.

4. No damages or fines of any kind shall be assessed for delays that result, in whole or in part, directly or indirectly, from any of the following:

(1) Customer delays;

(2) Labor strikes or shortages;

(3) Terrorist attacks, riots, civil unrest, or criminal sabotage;

(4) Acts of God, or extreme weather events;

(5) Delays caused by staffing shortages in the geographic area near the commission's construction project due to the owner's need to reassign an unusual number of workers to any other area to respond to an act of God or extreme weather event;

(6) The failure of another owner to sufficiently complete its required relocation of utility facilities that interfere with an owner's relocation plan;

(7) The failure of another owner or delay by another owner in submitting relocation plans that interfere with an owner's relocation plan;

(8) Delays by the commission in acquiring necessary right-of-way or necessary easements;

(9) Delays caused by facility damages or cable cuts caused by the commission's contractor, other owners, or third parties;

(10) Unusual material shortages; and

(11) Any other event or action beyond the reasonable control of the owner.

­­The occurrence of any of the unusual events listed in this section shall constitute an affirmative defense to the assessment of damages under the provisions of this section.

5. The removal and relocation of utility facilities shall be made at the expense of the owners unless otherwise provided by the commission. If the owner fails to relocate the utility facilities in accordance with the relocation plan as required by section 227.555, the utility facilities may be removed and relocated by the state highways and transportation commission, or under its direction, and the cost of relocating the utility facilities shall be collected from such owner. If the state highways and transportation commission or its designee removes and relocates the utility facilities, the utility owner shall not be liable to any party for any damages caused by the commission's or the commission's designee's removal and relocation of such facilities.

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(L. 2005 H.B. 209 § 227.248)

Effective 1-01-06