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Home My WebLink AboutD-2491-19 Amends Code Regarding Public Utility Relocation SPONSOR: Councilor Worrell ORDINANCE D-2491-19 AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA REGARDING PUBLIC UTILITY RELOCATION IN CITY STREETS,HIGHWAYS, AND OTHER PUBLIC PROPERTY Synopsis: This ordinance amends the City's Ordinance D-2368-17, as codified in Chapter 9, Article 5, Section 9-218 of the Carmel City Code, regarding public utility relocations in areas along, under, upon and across City streets, highways and other public property. WHEREAS, Indiana Code Section 8-1-2-101 authorizes the City to determine by ordinance the terms under which a public utility occupies the areas along, under, upon, and across its public streets, highways, and other public property; WHEREAS, On June 19, 2017, the Common Council of the City of Carmel ("City") adopted Ordinance D-2368-17, which added Chapter 9, Article 5, Section 9-218 ("Section 9- 218") to the Carmel City Code. The purpose of Section 9-218 is to establish the City's policy regarding public utility relocations in areas along, under,upon, and across City streets, highways, and other public property, the party to bear the costs associated with such relocations, and penalty provisions for non-compliance; WHEREAS, on January 23, 2019, the Indiana Utility Regulatory Commission ("IURC" or"Commission") issued a final order in a proceeding involving a dispute between Duke Energy Indiana and the Town of Avon ("Avon") regarding an ordinance similar to the City's Ordinance D-2368-17 (the "Avon Order"). In the Avon Order, the Commission made findings on the reasonableness of Avon's ordinance pursuant to Indiana Code Section 8-1-2-101 and ultimately found Avon's ordinance to be unreasonable and void; WHEREAS, the City desires to amend Section 9-218 to exercise its authority under Indiana Code Section 8-1-2-101 to regulate the occupation by public utilities of the areas along, under, upon, and across the City's streets, highways, and other public property and to make such regulation consistent with the Commission's findings in the Avon Order; and WHEREAS, the Carmel Common Council now finds that Section 9-218 should be amended in order to address the Commission's findings in the Avon Order and to further articulate the City's policy regarding public utility relocation; NOW, THEREFORE,BE IT ORDAINED,by the Common Council of the City of Carmel, Indiana, as follows: Section 1. The foregoing Recitals are fully incorporated herein by this reference. Ordinance D-2491-19 Page One of Four SPONSOR: Councilor Worrell Section 2. Chapter 9, Article 5, Section 9-218 of the Carmel City Code should be and is hereby amended as follows: "§9-218 Relocation of Public Utility Facilities (a) If it is necessary for a public utility facility located along, under, upon, and/or across a City street, highway, or other public property to be relocated because of a City road project, street project, sidewalk project, trail project or other project, or any combination thereof ("Project"), the owner of the public utility facility shall relocate that facility in accordance with the following procedures: (1) If a Project is subject to the oversight of the Indiana Department of Transportation ("INDOT") (an "INDOT Project"), the facility shall be relocated in accordance with INDOT regulations found at 105 IAC 13. Any relocation work plan agreed to by the owner of a public utility facility for an INDOT Project must, to the extent possible, comply with Chapter 6, Article 9, Section 6-245 of the Carmel City Code, which establishes an Underground and Buried Utilities District within the City in accordance with Indiana Code Sections 8-1-32.3-15 and 8-1-2- 101. The City may, in coordination with INDOT and the owner of a public utility facility, recommend a place for the relocation of a public utility facility. To the extent the owner of a public utility facility is not reimbursed by INDOT for the costs of relocating a public utility facility for an INDOT Project,the City shall not be liable for any relocation costs, unless the City agrees otherwise. (2) If a Project is not subject to the oversight of INDOT (a "City Project"), the owner of the public utility facility shall relocate that facility at a time, place and manner (including above or underground) as determined by the City ("Relocation Determination"). The City, in making a Relocation Determination, shall consider the following: safety requirements; engineering and construction standards; the legality and feasibility of the new location; less costly alternatives that comply with the City's laws, rules and standards; and factors that may prevent utilities from relocating their facilities such as weather and availability of materials. The cost for relocation of a public utility facility due to a City Project shall be borne by the owner of the public utility facility, unless the City agrees otherwise. An owner of a public utility facility may seek a waiver of a Relocation Determination by providing a written waiver request to the City's Board of Public Works ("BPW") within thirty (30) calendar days of the Relocation Determination. BPW shall respond to a waiver request within thirty (30) calendar days of receipt of the waiver request. To the extent a City Project involves relocation of a public utility facility within the City's Underground and Buried Utilities District pursuant to Chapter 6, Article 9, Section 6-245 ("Section 6-245"), such relocation shall comply with the requirements of Section 6-245. Ordinance D-2491-19 Page Two of Four SPONSOR: Councilor Worrell (b) If a public utility facility owner fails to relocate its facility as directed by the City pursuant to subsection (a)(2) hereinabove, the City shall have the right to relocate that facility. If the City exercises its right to relocate the facility,the owner of the facility shall reimburse the City for the cost of such relocation within thirty (30) calendar days from the date of the owner's receipt of the City's notice of the cost of relocation. If the owner fails to fully and timely reimburse the City for these relocation costs, the City shall have the right to collect these costs by exercising any available legal remedy, including, but not limited to, obtaining a money judgment for the costs incurred by the City in relocating the facility. (c) Any owner of a public utility facility that fails to relocate that facility in accordance with a Relocation Determination made by the City pursuant to subsection (a)(2) hereinabove shall be subject to a fine in the amount of$100 per day starting on the first day after the time period specified in a Relocation Determination or other time period agreed to by the City if a waiver has been granted in addition to any amounts owed to the City pursuant to subsection(b)hereinabove." Section 3. The remaining sections of Carmel City Code Chapter 9, Article 5 are not affected by this Ordinance and shall remain in full force and effect. Section 4. If any portion of this Ordinance is for any reason declared to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portions of this Ordinance so long as enforcement of same can be given the same effect. Section 5. This Ordinance shall be in full force and effect from and after the date and time of its passage and signing by the Mayor. Ordinance D-2491-19 Page Three of Four SPONSOR: Councilor Worrell 7 y PASSED by the Common Council of the City of Carm Indiana this L,/ day of cdr4f-r- 2019,by a vote of %-7ayes and nays. COMMO COUNCIL FOR THE CITY OF E Jeff resident Antho Gr ii34,(A-e____Q___ --c_,,-- /-e&c) Laura D. Campbell,' Vice-Presiders H. Bruc b 1 o-: . . Carter evin D. Rider Mt. e, S ii g . . AT: / /,. _ I r hristine S. Pauley, Cl: k-Treasurer 4/ Presented by me to the Mayor of the City of Carmel, Indiana this 2-7 day of VC—dhL('i 2019, at )I 'DO A-.M. AAA:4UL)&7,-Zebi/i/ t..);/1 #241,62AL-6--C.) Christine S. Pauley, Clerk-Treasurer 6 7 Approved bym Mayor of the City of C el, Indiana,this day Oci-OO� 2019, at . -, b 1 - e 1 , /James Brainard, Mayor ATT I V. . I II 4 C • tine S. Pau ey, Clerk-Tre.ifer Ordinance D-2491-19 Page Four of Four