House Bill hb1475er

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  1

  2         An act relating to the Underground Facility

  3         Damage Prevention and Safety Act; amending s.

  4         556.101, F.S.; revising legislative intent;

  5         amending s. 556.102, F.S.; redefining the terms

  6         "business hours," "excavate," and "system";

  7         defining the terms "design services," "positive

  8         response," "premark," and "tolerance zone";

  9         amending s. 556.104, F.S.; providing for a

10         free-access notification system; amending s.

11         556.105, F.S.; revising the procedures for

12         excavation and notification; amending s.

13         556.106, F.S.; revising liability provisions;

14         amending s. 556.107, F.S.; revising noncriminal

15         and criminal penalties; creating s. 556.112,

16         F.S.; prescribing requirements for member

17         operators and requests for design services;

18         providing application; providing an effective

19         date.

20

21  Be It Enacted by the Legislature of the State of Florida:

22

23         Section 1.  Section 556.101, Florida Statutes, is

24  amended to read:

25         556.101  Short title; legislative intent.--

26         (1)  This act may be cited as the "Underground Facility

27  Damage Prevention and Safety Act."

28         (2)  It is the intent of the Legislature to provide

29  access a single toll-free telephone number for excavating

30  contractors and the general public to provide call for

31  notification to the system of their intent to engage in


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  1  excavation or demolition.  This notification system shall

  2  provide the member operators an opportunity to identify and

  3  locate their underground facilities.

  4         (3)  It is the purpose of this act to:

  5         (a)  Aid the public by preventing injury to persons or

  6  property and the interruption of services resulting from

  7  damage to an underground facility caused by excavation or

  8  demolition operations.

  9         (b)  Create a not-for-profit corporation comprised of

10  operators of underground facilities in this state to

11  administer the provisions of this act.

12         (c)  Fund the cost of administration through entirely

13  and exclusively by assessed contributions from the member

14  operators for services provided to the member operators and

15  from charges made to others for services requested and

16  provided, such as record searches, education or training, and

17  damage prevention activities.

18         (d)  Reserve to the state the power to regulate any

19  subject matter specifically addressed in this act.

20         (e)  Permit any local law enforcement officer or

21  permitting agency inspector to enforce this act without the

22  need to incorporate the provisions of this act into any local

23  code or ordinance.

24         (4)  It is not the purpose of this act to create

25  liability for negligence on the part of any small municipality

26  or county operator of an underground facility which elects to

27  not participate in the one-call notification system in the

28  manner set forth in s. 556.103(1) created by this act. This

29  subsection expires January 1, 2003.

30

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  1         (5)  It is not the purpose of this act to amend or void

  2  any permit issued by a state agency for placement or

  3  maintenance of facilities in its right-of-way.

  4         Section 2.  Section 556.102, Florida Statutes, is

  5  amended to read:

  6         556.102  Definitions.--As used in this act:

  7         (1)  "Business days" means Monday through Friday,

  8  excluding the following holidays: New Year's Day, Birthday of

  9  Dr. Martin Luther King, Jr., Memorial Day, Independence Day,

10  Labor Day, Thanksgiving Day and the following Friday,

11  Christmas Eve, and Christmas Day.  Any such holiday that falls

12  on a Saturday shall be observed on the preceding Friday.  Any

13  such holiday that falls on a Sunday shall be observed on the

14  following Monday.

15         (2)  "Business hours" means the hours of a day during

16  which the system is open for business toll-free telephone

17  number is answered by a natural person.

18         (3)  "Damage" means any impact upon or contact with,

19  including, without limitation, penetrating, striking,

20  scraping, displacing, or denting, however slight, the

21  protective coating, housing, or other protective devices of

22  any underground facility, or the removal or weakening of any

23  lateral or vertical support from any underground facility, or

24  the severance, partial or complete, of any underground

25  facility.

26         (4)  "Demolish" or "demolition" means any operation by

27  which a structure or mass of material is wrecked, razed,

28  rended, moved, or removed by means of any tool, equipment, or

29  discharge of explosives, or any disturbance of the earth in

30  any manner on public or private lands which could damage any

31  underground facility.


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  1         (5)  "Design services" means services that may be

  2  provided by a member operator to a design engineer, architect,

  3  surveyor, or planner, if the presence of underground

  4  facilities is known to a member operator, upon payment of a

  5  fee to the member operator, which services may be based on:

  6         (a)  Information obtained solely from a review of

  7  utility records.

  8         (b)  Information to augment utility records, such as

  9  topographic surveying of above-ground utility features.

10         (c)  Information obtained through the use of

11  designating technologies to obtain horizontal underground

12  facility locations.

13         (d)  Information obtained from physically exposing

14  underground facilities.

15         (6)(5)  "Excavate" or "excavation" means any manmade

16  cut, cavity, trench, or depression in the earth's surface,

17  formed by removal of earth, intended to change the grade or

18  level of land, or intended to penetrate or disturb the surface

19  of the earth, including land beneath the waters of the state,

20  as defined in s. 373.019(17), and the term includes pipe

21  bursting and directional drilling or boring from one point to

22  another point beneath the surface of the earth, or other

23  trenchless technologies.

24         (7)(6)  "Excavator" or "excavating contractor" means

25  any person performing excavation or demolition operations.

26         (8)(7)  "Member operator" means any person who

27  furnishes or transports materials or services by means of an

28  underground facility except a small municipality or county

29  that has elected not to participate in the one-call

30  notification system in the manner set forth in s. 556.103(1).

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  1         (9)(8)  "Person" means any individual, firm, joint

  2  venture, partnership, corporation, association, municipality,

  3  or other political subdivision, governmental unit, department,

  4  or agency, and includes any trustee, receiver, assignee, or

  5  personal representative of a person.

  6         (10)  "Positive response" means the communications

  7  among member operators, excavators, and the system concerning

  8  the status of locating an underground facility.

  9         (11)  "Premark" means to delineate the general scope of

10  the excavation on the surface of the ground using white paint,

11  white stakes, or other similar white markings.

12         (12)  "Tolerance zone" means 24 inches from the outer

13  edge of either side of the exterior surface of a marked

14  underground facility.

15         (13)(9)  "Underground facility" means any public or

16  private personal property which is buried, placed below

17  ground, or submerged on any member operator's right-of-way,

18  easement, or permitted use which is being used or will be used

19  in connection with the storage or conveyance of water; sewage;

20  electronic, telephonic, or telegraphic communication; electric

21  energy; oil; petroleum products; natural gas; optical signals;

22  or other substances, and includes, but is not limited to,

23  pipelines, pipes, sewers, conduits, cables, valves, and lines.

24  For purposes of this act, a liquefied petroleum gas line

25  regulated under chapter 527 is not an underground facility

26  unless such line is subject to the requirements of Title 49

27  C.F.R. adopted by the Department of Agriculture and Consumer

28  Services, provided there is no encroachment on any member

29  operator's right-of-way, easement, or permitted use. Petroleum

30  storage systems subject to regulation pursuant to chapter 376

31  are not considered underground facilities for the purposes of


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  1  this act unless the storage system is located on a member

  2  operator's right-of-way or easement. Storm drainage systems

  3  are not considered underground facilities.

  4         (14)(10)  "System" means a free-access one-call

  5  toll-free telephone notification system established by the

  6  corporation as provided in this act.

  7         Section 3.  Section 556.104, Florida Statutes, is

  8  amended to read:

  9         556.104  Free-access One-call notification system.--The

10  corporation shall maintain a free-access establish a one-call

11  toll-free telephone notification system which shall be

12  operational by June 1, 1994. Any person who furnishes or

13  transports materials or services by means of an underground

14  facility in this state shall participate as a member operator

15  of the system except that a small city as defined in s. 120.52

16  may elect not to participate in the system in the manner set

17  forth in s. 556.103(1).  The purpose of the system is to

18  receive notification of planned excavation or demolition

19  activities and to notify member operators of such planned

20  excavation or demolition activities.  The system shall provide

21  a single toll-free telephone number within this state which

22  excavators can use to notify member operators of planned

23  excavation or demolition activities, and the system may also

24  provide additional modes of access at no cost to the user.

25         Section 4.  Section 556.105, Florida Statutes, is

26  amended to read:

27         556.105  Procedures.--

28         (1)(a)  Not less than 2 nor more than 5 full business

29  days before beginning any excavation or demolition, an

30  excavator shall provide the following information through the

31  system:


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  1         1.  The name of the individual who provided

  2  notification and the name, address, including the street

  3  address, city, state, zip code, and telephone number of her or

  4  his employer.

  5         2.  The name and telephone number of the representative

  6  for the excavator.

  7         3.  The county, the city or closest city, and the

  8  street address or the closest street, road, or intersection to

  9  the location where the excavation or demolition is to be

10  performed, and the construction limits of the excavation or

11  demolition.

12         4.  The commencement date and anticipated duration of

13  the excavation or demolition.

14         5.  Whether machinery will be used for the excavation

15  or demolition.

16         6.  The person or entity for whom the work is to be

17  done.

18         7.  The type of work to be done.

19         8.  The approximate depth of the excavation.

20         (b)  The excavator shall provide such information by

21  notifying the system through its free-access notification

22  system calling the statewide toll-free number during business

23  hours, as determined by the corporation, or by such other

24  method as authorized by the corporation.  Any notification

25  received by the system at any time other than during business

26  hours shall be considered to be received at the beginning of

27  the next business day.

28         (c)  Information provided by an excavator shall be

29  considered valid for a period of 20 calendar days after each

30  date such information is provided to the system.  In computing

31  the period for which information furnished is considered


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  1  valid, the date the notice is provided shall not be counted,

  2  but the last day of such period shall be counted unless it is

  3  a Saturday, Sunday, or a legal holiday, in which event, the

  4  period shall run until the end of the next day which is not a

  5  Saturday, Sunday, or a legal holiday.

  6         (2)  Each notification by means of the system shall be

  7  recorded to document compliance with this act.  Such record

  8  may be made by means of electronic, mechanical, or any other

  9  method of all incoming and outgoing wire and oral

10  communications concerning location requests in compliance with

11  chapter 934.  Such records shall be kept for a period of 5

12  years and, upon written request, shall be available to the

13  excavator making the request, the member operator intended to

14  receive the request, and their agents. However, custody of the

15  records shall not be transferred from the system except under

16  subpoena.

17         (3)  The system shall provide the person who provided

18  notification with the names of the member operators who will

19  be advised of the notification and a notification number which

20  specifies the date and time of the notification.

21         (4)  All member operators within the defined area of a

22  proposed excavation or demolition shall be promptly notified

23  through the system, except that member operators with

24  state-owned underground facilities located within the

25  right-of-way of a state highway need not be notified of

26  excavation or demolition activities and are under no

27  obligation to mark or locate such facilities.

28         (a)  When an excavation site cannot be described in

29  information provided under subparagraph (1)(a)3. with

30  sufficient particularity to enable the member operator to

31  ascertain the excavation site, and if the excavator and member


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  1  operator have not mutually agreed otherwise, the excavator

  2  shall premark the proposed area of the excavation before a

  3  member operator is required to identify the horizontal route

  4  of its underground facilities in the proximity of any

  5  excavation. However, premarking is not required for any

  6  excavation that is over 500 feet in length and is not required

  7  where the premarking could reasonably interfere with traffic

  8  or pedestrian control.

  9         (b)(5)  If a member operator determines that a proposed

10  excavation or demolition is in proximity to or in conflict

11  with an underground facility of the member operator, except a

12  facility beneath the waters of the state, which is governed by

13  paragraph (c), the member operator shall identify the

14  horizontal route by marking to within 24 inches from the outer

15  edge of either side of the underground facility by the use of

16  stakes, paint, flags, or other suitable means within 2 full 48

17  hours, excluding days other than business days, after the time

18  the notification is received under subsection (1).  If the

19  member operator is unable to respond within such time, the

20  member operator shall communicate with the person making the

21  request and negotiate a new schedule and time that is

22  agreeable to, and should not unreasonably delay, the

23  excavator.

24         (c)  If a member operator determines that a proposed

25  excavation is in proximity to or in conflict with an

26  underground facility of the member operator beneath the waters

27  of the state, the member operator shall identify the estimated

28  horizontal route of the underground facility, within 10

29  business days, using marking buoys or other suitable devices,

30  unless directed otherwise by an agency having jurisdiction

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  1  over the waters of the state under which the member operator's

  2  underground facility is located.

  3         (d)  When excavation is to take place within a

  4  tolerance zone, an excavator shall use increased caution to

  5  protect underground facilities. The protection requires hand

  6  digging, pot holing, soft digging, vacuum excavation methods,

  7  or other similar procedures to identify underground

  8  facilities. Any use of mechanized equipment within the

  9  tolerance zone must be supervised by the excavator.

10         (5)(6)(a)  An excavator shall avoid excavation in the

11  area described in the notice given pursuant to subsection (1)

12  until each member operator underground facility has been

13  marked and located or until the excavator has been notified

14  that no member operator has underground facilities in the area

15  described in the notice, or for the time allowed for markings

16  set forth in paragraphs (4)(b) and (c) 48 hours, excluding

17  days other than business days, after notification under the

18  system, whichever occurs first.  If a member operator has not

19  located and marked its underground facilities within the time

20  allowed for marking set forth in paragraphs (4)(b) and (c) 48

21  hours, excluding days other than business days, after

22  notification under the system, the excavator may proceed with

23  the excavation, provided the excavator does so with reasonable

24  care, and provided, further, that detection equipment or other

25  acceptable means to locate underground facilities are used.

26         (b)  An excavator shall not demolish in the area

27  described in the notice given pursuant to subsection (1) until

28  all member operator underground facilities have been marked

29  and located, or removed.

30         (6)(a)(7)  A member operator that states which

31  certifies that it does not have accurate information


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  1  concerning the exact location of its underground facilities is

  2  exempt from the requirements of paragraphs (4)(b) and (c)

  3  subsection (5), but shall provide the best available

  4  information to the excavator in order to comply with the

  5  requirements of this section.  An excavator is not liable for

  6  any damage to an underground facility under the exemption in

  7  this subsection if the excavation or demolition is performed

  8  with reasonable care and detection equipment or other

  9  acceptable means to locate underground facilities are used.

10         (b)  A member operator may not exercise the exemption

11  provided by this subsection if the member operator has

12  underground facilities that have not been taken out of service

13  and that are locatable using available designating

14  technologies to locate underground facilities.

15         (7)(8)(a)  If extraordinary circumstances exist, a

16  member operator shall notify the system of the member

17  operator's inability to comply with this section.  For the

18  purposes of this section, "extraordinary circumstances" means

19  circumstances other than normal operating conditions which

20  exist and make it impractical for a member operator to comply

21  with the provisions of this act.  After the system has

22  received notification of a member operator's inability to

23  comply, the system shall make that information known to

24  excavators who subsequently notify the system of an intent to

25  excavate. The system shall notify only those prospective

26  excavators who make requests for notification after the member

27  operator reported the member operator's inability to comply.

28  The member operator is relieved of responsibility for

29  compliance under the law during the period that the

30  extraordinary circumstances exist and shall promptly notify

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  1  the system when the extraordinary circumstances cease to

  2  exist.

  3         (b)  During the period when that extraordinary

  4  circumstances exist, the system shall remain available during

  5  business hours to provide information to governmental

  6  agencies, member operators affected by the extraordinary

  7  circumstances, and member operators who can provide relief to

  8  the affected parties, unless the system itself has been

  9  adversely affected by extraordinary circumstances.

10         (8)(a)(9)  If a member operator determines that the

11  excavation or demolition is not near an existing underground

12  facility of the member operator, the member operator shall

13  notify the excavator within 2 full 48 hours, excluding days

14  other than business days after, from the time of the

15  notification to the system that no conflict exists and that

16  the excavation or demolition area is clear.  An excavator who

17  has knowledge of the existence of an underground facility of a

18  member operator in the area is responsible for contacting the

19  member operator if a facility is not marked.

20         (b)  The system shall implement procedures for positive

21  response by January 1, 2004.

22         (9)(10)  A member operator shall use the recommended

23  guidelines for uniform temporary marking of underground

24  facilities as approved by the Utility Location and

25  Coordinating Council of the American Public Works Association

26  when marking the horizontal route of any underground facility

27  of the operator.

28         (10)(11)  Prior to or during excavation or demolition,

29  if the marking of the horizontal route of any facility is

30  removed or is no longer visible, the excavator shall stop

31  excavation or demolition activities in the vicinity of the


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  1  facility and shall notify the system to have the route

  2  remarked.

  3         (11)(12)  If any contact with or damage to any pipe,

  4  cable, or its protective covering, or any other underground

  5  facility occurs, the excavator causing the contact or damage

  6  shall immediately notify the member operator. Upon receiving

  7  notice, the member operator shall send personnel to the

  8  location as soon as possible to effect temporary or permanent

  9  repair of the contact or damage.  Until such time as the

10  contact or damage has been repaired, the excavator shall cease

11  excavation or demolition activities that may cause further

12  damage to such underground facility.

13         Section 5.  Paragraph (a) of subsection (2) of section

14  556.106, Florida Statutes, is amended, present subsections (4)

15  and (5) of said section are renumbered as subsections (5) and

16  (6), respectively, and a new subsection (4) is added to said

17  section, to read:

18         556.106  Liability of the member operator, excavator,

19  and system.--

20         (2)(a)  In the event any person violates s. 556.105(1)

21  or (5) (6), and subsequently, whether by himself or herself or

22  through the person's employees, contractors, subcontractors,

23  or agents, performs an excavation or demolition which damages

24  an underground facility of a member operator, it shall be

25  rebuttably presumed that such person was negligent.  Such

26  person, if found liable, shall be liable for the total sum of

27  the losses to all member operators involved as those costs are

28  normally computed. Any damage for loss of revenue and loss of

29  use shall not exceed $500,000 per affected underground

30  facility, except that revenues lost by a governmental member

31  operator, which revenues are used to support payments on


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  1  principal and interest on bonds, shall not be limited. Any

  2  liability of the state and its agencies and its subdivisions

  3  which arises out of this chapter shall be subject to the

  4  provisions of s. 768.28.

  5         (4)  If an owner of an underground facility fails to

  6  become a member of the corporation in order to use and

  7  participate in the system, as required by this act, and that

  8  failure is a cause of damage to that underground facility

  9  caused by an excavator who has complied with the provisions of

10  this act and has exercised reasonable care in the performance

11  of the excavation that has caused damage to the underground

12  facility, the owner has no right of recovery against the

13  excavator for the damage to that underground facility.

14         Section 6.  Section 556.107, Florida Statutes, is

15  amended to read:

16         556.107  Violations.--

17         (1)  NONCRIMINAL INFRACTIONS.--

18         (a)  Violations of the following provisions are

19  noncriminal infractions:

20         1.  Section 556.105(1), relating to providing required

21  information.

22         2.  Section 556.105(5) 556.105(6), relating to the

23  avoidance of excavation.

24         3.  Section 556.105(10) 556.105(11), relating to the

25  need to stop excavation or demolition.

26         4.  Section 556.105(11) 556.105(12), relating to the

27  need to cease excavation or demolition activities.

28         5.  Section 556.105(4)(b) and (c) relating to

29  identification of underground facilities, if a member operator

30  does not mark an underground facility, but not if a member

31  operator marks an underground facility incorrectly.


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  1         (b)  Any excavator or member operator who commits a

  2  noncriminal infraction under paragraph (a) may be issued a

  3  citation by any local or state law enforcement officer or

  4  permitting agency inspector, and the issuer of a citation may

  5  require any excavator to cease work on any excavation or not

  6  start a proposed excavation until there has been compliance

  7  with the provisions of this act. Citations may be issued to

  8  any employee of the excavator or member operator who is

  9  directly involved in the noncriminal infraction.

10         (c)  Any excavator or member operator who commits a

11  noncriminal infraction under paragraph (a) may be required to

12  appear before the county court.  The civil penalty for any

13  such infraction is $250, except as otherwise provided in this

14  section.  Any person who fails to appear or otherwise properly

15  respond to a citation issued pursuant to paragraph (d) shall,

16  in addition to the citation, be charged with the offense of

17  failing to respond to such citation and, upon conviction, be

18  guilty of a misdemeanor of the second degree, punishable as

19  provided in s. 775.082 or s. 775.083.  A written warning to

20  this effect shall be provided at the time any citation is

21  issued pursuant to paragraph (b).

22         (d)  Any person cited for an infraction under paragraph

23  (a), unless required to appear before the county court, may:

24         1.  Post a bond, which shall be equal in amount to the

25  applicable civil penalty; or

26         2.  Sign and accept a citation indicating a promise to

27  appear before the county court.

28

29  The issuing officer may indicate on the citation the time and

30  location of the scheduled hearing and shall indicate the

31  applicable civil penalty.


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  1         (e)  Any person charged with a noncriminal infraction

  2  under paragraph (a), unless required to appear before the

  3  county court, may:

  4         1.  Pay the civil penalty, in lieu of appearance,

  5  either by mail or in person, within 10 days after the date of

  6  receiving the citation; or

  7         2.  Forfeit bond, if a bond has been posted, by not

  8  appearing at the designated time and location.

  9

10  If the person cited follows either of the above procedures,

11  she or he shall be deemed to have admitted to committing the

12  infraction and to have waived the right to a hearing on the

13  issue of commission of the infraction. Such admission may be

14  used as evidence in any other proceeding under this act.

15         (f)  Any person electing to appear before the county

16  court or who is required to appear shall be deemed to have

17  waived the limitations on the civil penalty specified in

18  paragraph (c).  The court, after a hearing, shall make a

19  determination as to whether an infraction has been committed.

20  If the commission of an infraction has been proven, the court

21  may impose a civil penalty not to exceed $5,000.  In

22  determining the amount of the civil penalty, the court may

23  consider previous noncriminal infractions committed.

24         (g)  At a hearing under this chapter, the commission of

25  a charged infraction must be proven by a preponderance of the

26  evidence.

27         (h)  If a person is found by the hearing official to

28  have committed an infraction, such person may appeal that

29  finding to the circuit court.

30         (2)  MISDEMEANORS.--Any person who knowingly and

31  willfully removes or otherwise destroys the valid stakes or


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    2002 Legislature                                    CS/HB 1475



  1  other valid physical markings described in s. 556.105(4)(b)

  2  and (c) used to mark the horizontal route of an underground

  3  facility commits a misdemeanor of the second degree,

  4  punishable as provided in s. 775.082 or s. 775.083. For

  5  purposes of this subsection, stakes or other nonpermanent

  6  physical markings are considered valid for 20 calendar days

  7  after information is provided to the system under s.

  8  556.105(1)(c).

  9         Section 7.  Section 556.112, Florida Statutes, is

10  created to read:

11         556.112  Design services.--

12         (1)  Each member operator shall provide to the system

13  annually, and shall thereafter keep current, the contact names

14  and telephone numbers of individuals who may be contacted by

15  design engineers, architects, surveyors, and planners for the

16  purpose of responding to requests for design services.

17         (2)  Each member operator shall provide to the system

18  annually, and shall thereafter keep current, a list of fees

19  applicable to each type of design service that each member

20  operator chooses to offer to design engineers, architects,

21  surveyors, and planners.

22         (3)  Each member operator, within 20 business days

23  after receipt of the fee provided for in subsection (2), shall

24  either respond to a request for design services, if the member

25  operator chooses to provide the services requested, or shall

26  notify the party requesting services that the services will

27  not be provided.

28         (4)  The system shall study the feasibility of

29  implementing a procedure for notification to member operators

30  of requests for design services from design engineers,

31  architects, surveyors, and planners, including the right to


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    ENROLLED

    2002 Legislature                                    CS/HB 1475



  1  recover reasonable and compensatory costs from the users, and

  2  the system shall report the results of the study to the

  3  Legislature before January 1, 2004.

  4         (5)  This section shall not apply to any state agency,

  5  municipality, or county, or contractors, consultants, agents,

  6  or persons or firms acting under their authority, in the

  7  planning, preparing, or performance of work in their

  8  right-of-way.  This section shall not limit or expand any

  9  existing law governing the process a state agency,

10  municipality, or county uses to request design services from

11  member operators or the responsibility for providing or paying

12  for such services.

13         Section 8.  This act shall take effect October 1, 2002.

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