GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2009
SESSION LAW 2009-266
SENATE BILL 828
AN ACT to increase the maximum amount at which projects may undergo an informal bidding process and CLARIFY the application of this PROCESS, to continue the Department of transportation's program for participation of disadvantaged minority-owned and women-owned businesses, and to amend various statutes in chapter 136 of the general statutes to conform with the department's focus on all modes of transportation infrastructure.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 136-28.1 reads as rewritten:
"§ 136-28.1. Letting of contracts to bidders after advertisement; exceptions.
(a) All contracts
over one million two hundred thousand dollars ($1,200,000) that the Department
of Transportation may let for construction construction, maintenance,
or repair necessary to carry out the provisions of this Chapter shall be
let to a responsible bidder after public advertising under rules and
regulations to be made and published by the Department of Transportation. The
right to reject any and all bids shall be reserved to the Board of
Transportation. Contracts for construction or repair for federal aid projects
entered into pursuant to this section shall not contain the standardized
contract clauses prescribed by 23 U.S.C. § 112(e) and 23 C.F.R. § 635.109 for
differing site conditions, suspensions of work ordered by the engineer or
significant changes in the character of the work. For those federal aid
projects, the Department of Transportation shall use only the contract
provisions for differing site conditions, suspensions of work ordered by the
engineer, or significant changes in the character of the work developed by the
North Carolina Department of Transportation and approved by the Board of
Transportation.
(b) In those
cases For contracts let to carry out the provisions of this Chapter in
which the amount of work to be let to contract for highway construction,
maintenance,construction or repair is one million two hundred
thousand dollars ($1,200,000) or less, and for maintenance, excluding
resurfacing, that is one million two hundred thousand dollars ($1,200,000) per
year or less, at least three informal bids shall be solicited. The term
"informal bids" is defined as bids in writing, received pursuant to a
written request, without public advertising. All such contracts shall be
awarded to the lowest responsible bidder. The Secretary of Transportation shall
keep a record of all bids submitted, which record shall be subject to public
inspection at any time after the bids are opened.
(c) The construction, maintenance, and repair of ferryboats and all other marine floating equipment and the construction and repair of all types of docks by the Department of Transportation shall be deemed highway construction, maintenance, or repair for the purpose of G.S. 136-28.1 and Chapter 44A and Chapter 143C of the General Statutes, the State Budget Act. In cases of a written determination by the Secretary of Transportation that the requirement for compatibility does not make public advertising feasible for the repair of ferryboats, the public advertising as well as the soliciting of informal bids may be waived.
(d) The construction, maintenance, and repair of the highway rest area buildings and facilities, weight stations and the Department of Transportation's participation in the construction of welcome center buildings shall be deemed highway construction, maintenance, or repair for the purpose of G.S. 136-28.1 and 136-28.3 and Chapter 143C of the General Statutes, the State Budget Act.
(e) The Department
of Transportation may enter into contracts for construction, maintenance, or
repair without complying with the bidding requirements of this section upon a
determination of the Secretary of Transportation or the State Highway
Administrator the Secretary's designee that an emergency exists and
that it is not feasible or not in the public interest for the Department of
Transportation to comply with the bidding requirements.
(f)
Notwithstanding any other provision of law, the Department of Transportation
may solicit proposals under rules and regulations adopted by the Department of
Transportation for all contracts for professional engineering services and
other kinds of professional or specialized services necessary in connection
with highway construction, maintenance, or repair.the planning,
design, maintenance, repair, and construction of transportation infrastructure.
In order to promote engineering and design quality and ensure maximum
competition by professional firms of all sizes, the Department may establish
fiscal guidelines and limitations necessary to promote cost-efficiencies in
overhead, salary, and expense reimbursement rates. The right to reject any and
all proposals is reserved to the Board of Transportation.
(g) The Department of Transportation may enter into contracts for research and development with educational institutions and nonprofit organizations without soliciting bids or proposals.
(h) The Department of Transportation may enter into contracts for applied research and experimental work without soliciting bids or proposals; provided, however, that if the research or work is for the purpose of testing equipment, materials, or supplies, the provisions of Article 3 of Chapter 143 of the General Statutes shall apply. The Department of Transportation is encouraged to solicit proposals when contracts are entered into with private firms when it is in the public interest to do so.
(i) The Department of Transportation may negotiate and enter into contracts with public utility companies for the lease, purchase, installation, and maintenance of generators for electricity for its ferry repair facilities.
(j) Repealed by Session Laws 2002-151, s. 1, effective October 9, 2002.
(k) The Department of Transportation may accept bids under this section by electronic means and may issue rules governing the acceptance of these bids. For purposes of this subsection "electronic means" is defined as means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(l) The Department of Transportation may enter into as many as two pilot contracts for public private participation in providing litter removal from State right-of-way. Selection of firms to perform this work shall be made using a best value procurement process and shall be without regard to other provisions of law regarding the Adopt-A-Highway Program administered by the Department. Acknowledgement of sponsors may be indicated by appropriate signs that shall be owned by the Department of Transportation. The size, style, specifications, and content of the signs shall be determined in the sole discretion of the Department of Transportation. The Department of Transportation may issue rules and policies necessary to implement this section.
(m) The Department of Transportation may enter into as many as two pilot contracts for public-private participation in providing real-time traveler information at State-owned rest areas. Selection of firms to perform this work shall be made using a best value procurement process. Recognition of sponsors in the program may be indicated by appropriate acknowledgment for any services provided. The size, style, specifications, and content of the acknowledgment shall be determined in the sole discretion of the Department. Revenues generated pursuant to a contract initiated under this subsection shall be shared with Department of Transportation at a predetermined percentage or rate, and shall be earmarked by the Department to maintain the State owned rest areas from which the revenues are generated. The Department of Transportation may issue guidelines, rules, and policies necessary to administer a pilot program initiated under this subsection."
SECTION 2. G.S. 136-28.10(a) reads as rewritten:
"(a) Notwithstanding the provisions of G.S. 136-28.4(b), for Highway Fund or Highway Trust Fund construction and repair projects of five hundred thousand dollars ($500,000) or less, and maintenance projects of five hundred thousand dollars ($500,000) or less per year, the Board of Transportation may, after soliciting at least three informal bids in writing from Small Business Enterprises, award contracts to the lowest responsible bidder. The Department of Transportation may identify projects likely to attract increased participation by Small Business Enterprises, and restrict the solicitation and award to those bidders. The Board of Transportation may delegate full authority to award contracts, adopt necessary rules, and administer the provisions of this section to the Secretary of Transportation."
SECTION 3. G.S. 136-28.4(e) reads as rewritten:
"(e) This section
expires August 31, 2009.2010."
SECTION 4. The title of Chapter 136 of the General Statutes reads as rewritten:
"Chapter 136.
Roads and Highways.Transportation."
SECTION 5. Chapter 136 of the General Statutes is amended by adding a new section to read:
"§ 136-5.1. Transportation system.
For the purpose of this Chapter, transportation system is defined as all modes of transportation infrastructure owned and maintained by the North Carolina Department of Transportation, including roads, highways, rail, ferry, aviation, public transportation, and bicycle and pedestrian facilities."
SECTION 6. G.S. 136-18 reads as rewritten:
"§ 136-18. Powers of Department of Transportation.
The said Department of Transportation is vested with the following powers:
…
(2) To take over and
assume exclusive control for the benefit of the State of any existing county or
township roads, and to locate and acquire rights-of-way for any new roads that
may be necessary for a State highway system, and subject to the provisions of
G.S. 136-19.5(a) and (b) also locate and acquire such additional rights-of-way
as may be necessary for the present or future relocation or initial location,
above or below ground, of telephone, telegraph, broadband communications,
electric and other lines, as well as gas, water, sewerage, oil and other
pipelines, to be operated by public utilities as defined in G.S. 62-3(23)
and which are regulated under Chapter 62 of the General Statutes, or by
municipalities, counties, any entity created by one or more political
subdivisions for the purpose of supplying any such utility services, electric
membership corporations, telephone membership corporations, or any combination
thereof, with full power to widen, relocate, change or alter the grade or
location thereof and to change or relocate any existing roads that the
Department of Transportation may now own or may acquire; to acquire by gift,
purchase, or otherwise, any road or highway, or tract of land or other property
whatsoever that may be necessary for a State highway transportation system
and adjacent utility rights-of-way: Provided, all changes or alterations
authorized by this subdivision shall be subject to the provisions of
G.S. 136-54 to 136-63, to the extent that said sections are applicable:
Provided, that nothing in this Chapter shall be construed to authorize or
permit the Department of Transportation to allow or pay anything to any county,
township, city or town, or to any board of commissioners or governing body
thereof, for any existing road or part of any road heretofore constructed by
any such county, township, city or town, unless a contract has already been
entered into with the Department of Transportation.
…
(39) To enter into partnership
agreements with the North Carolina Turnpike Authority, private entities, and
authorized political subdivisions to finance, by tolls, contracts, and other
financing methods authorized by law, the cost of acquiring, constructing,
equipping, maintaining, and operating transportation infrastructure in this
State, with priority given to highways, roads, streets, and bridges, and
to plan, design, develop, acquire, construct, equip, maintain, and operate highways,
roads, streets, bridges, and existing rail, as well as properties adjoining
existing rail lines transportation infrastructure in this State. An
agreement entered into under this subdivision requires the concurrence of the
Board of Transportation. The Department shall report to the Chairs of the Joint
Legislative Transportation Oversight Committee, the Chairs of the House of
Representatives Appropriations Subcommittee on Transportation, and the Chairs
of the Senate Appropriations Committee on the Department of Transportation, at
the same time it notifies the Board of Transportation of any proposed agreement
under this subdivision. Any contracts for construction of highways, roads,
streets, and bridges which are awarded pursuant to an agreement entered into
under this section shall comply with the competitive bidding requirements of
Article 2 of this Chapter.
…."
SECTION 7. G.S. 136-19 reads as rewritten:
"§ 136-19. Acquisition of land and deposits of materials; condemnation proceedings; federal parkways.
(a) The Department
of Transportation is vested with the power to acquire either in the nature of
an appropriate easement or in fee simple such rights-of-way and title to such
land, gravel, gravel beds or bars, sand, sand beds or bars, rock, stone,
boulders, quarries, or quarry beds, lime or other earth or mineral deposits or
formations, and such standing timber as it may deem necessary and suitable for transportation
infrastructure construction, including road construction, maintenance, and
repair, and the necessary approaches and ways through, and a sufficient amount
of land surrounding and adjacent thereto, as it may determine to enable it to
properly prosecute the work, by purchase, donation, or condemnation, in the
manner hereinafter set out. If the Department of Transportation acquires by
purchase, donation, or condemnation part of a tract of land in fee simple for
highway right-of-way as authorized by this section and the Department of
Transportation later determines that the property acquired for transportation
infrastructure, including highway right-of-way, or a part of that property,
is no longer needed for highway infrastructure right-of-way, then
the Department shall give first consideration to any offer to purchase the
property made by the former owner. The Department may refuse any offer that is
less than the current market value of the property, as determined by the
Department. Unless the Department acquired an entire lot, block, or tract of
land belonging to the former owner, the former owner must own the remainder of
the lot, block, or tract of land from which the property was acquired to
receive first consideration by the Department of their offer to purchase the
property.
(b) Notwithstanding
the provisions of subsection (a), if the Department acquires the property by
condemnation and determines that the property or a part of that property is no
longer needed for highway right-of-way,right-of-way or other
transportation projects, the Department of Transportation may reconvey the
property to the former owner upon payment by the former owner of the full price
paid to the owner when the property was taken, the cost of any improvements,
together with interest at the legal rate to the date when the decision was made
to offer the return of the property. Unless the Department acquired an entire
lot, block, or tract of land belonging to the former owner, the former owner
must own the remainder of the lot, block, or tract of land from which the
property was acquired to purchase the property pursuant to this subsection.
(c) The requirements of this section for reconveying property to the former owner, regardless of whether such property was acquired by purchase, donation, or condemnation, shall not apply to property acquired outside the right-of-way as an "uneconomic remnant" or "residue".
(d) The Department
of Transportation is also vested with the power to acquire such additional land
alongside of the rights-of-way or for transportation projects,
including roads as in its opinion may be necessary and proper for the
protection of the transportation projects, including roads and roadways,
and such additional area as may be necessary as by it determined for approaches
to and from such material and other requisite area as may be desired by it for
working purposes. The Department of Transportation may, in its discretion, with
the consent of the landowner, acquire in fee simple an entire lot, block or
tract of land, if by so doing, the interest of the public will be best served,
even though said entire lot, block or tract is not immediately needed for right-of-way
purposes.
(e) Notwithstanding
any other provisions of law or eminent domain powers of utility companies,
utility membership corporations, municipalities, counties, entities created by
political subdivisions, or any combination thereof, and in order to prevent
undue delay of highway projects because of utility conflicts, the Department of
Transportation may condemn or acquire property in fee or appropriate easements
necessary to provide highway transportation project rights-of-way
for the relocation of utilities when required in the construction,
reconstruction, or rehabilitation of a State highway transportation project.
The Department of Transportation shall also have the authority, subject to the
provisions of G.S. 136-19.5(a) and (b), to, in its discretion, acquire
rights-of-way necessary for the present or future placement of utilities as
described in G.S. 136-18(2).
(f) Whenever the Department of Transportation and the owner or owners of the lands, materials, and timber required by the Department of Transportation to carry on the work as herein provided for, are unable to agree as to the price thereof, the Department of Transportation is hereby vested with the power to condemn the lands, materials, and timber and in so doing the ways, means, methods, and procedure of Article 9 of this Chapter shall be used by it exclusively.
(g) The Department
of Transportation shall have the same authority, under the same provisions of
law provided for construction of State highways,transportation
projects, for acquirement of all rights-of-way and easements necessary to
comply with the rules and regulations of the United States government for the
construction of federal parkways and entrance roads to federal parks in the
State of North Carolina. The acquirement of a total of 125 acres per mile of
said parkways, including roadway and recreational, and scenic areas on either
side thereof, shall be deemed a reasonable area for said purpose. The right-of-way
acquired or appropriated may, at the option of the Department of
Transportation, be a fee-simple title. The said Department of Transportation is
hereby authorized to convey such title so acquired to the United States
government, or its appropriate agency, free and clear of all claims for
compensation. All compensation contracted to be paid or legally assessed shall
be a valid claim against the Department of Transportation, payable out of the
State Highway Fund. Any conveyance to the United States Department of Interior
of land acquired as provided by this section shall contain a provision whereby
the State of North Carolina shall retain concurrent jurisdiction over the areas
conveyed. The Governor is further authorized to grant concurrent jurisdiction
to lands already conveyed to the United States Department of Interior for
parkways and entrances to parkways.
(h) The action of the Department of Transportation heretofore taken in the acquirement of areas for the Blue Ridge Parkway in accordance with the rules and regulations of the United States government is hereby ratified and approved and declared to be a reasonable exercise of the discretion vested in the said Department of Transportation in furtherance of the public interest.
(i) When areas have been tentatively designated by the United States government to be included within a parkway, but the final survey necessary for the filing of maps as provided in this section has not yet been made, no person shall cut or remove any timber from said areas pending the filing of said maps after receiving notice from the Department of Transportation that such area is under investigation; and any property owner who suffers loss by reason of the restraint upon his right to use the said timber pending such investigation shall be entitled to recover compensation from the Department of Transportation for the temporary appropriation of his property, in the event the same is not finally included within the appropriated area, and the provisions of this section may be enforced under the same law now applicable for the adjustment of compensation in the acquirement of rights-of-way on other property by the Department of Transportation."
SECTION 8. G.S. 136-19.3 reads as rewritten:
"§ 136-19.3. Acquisition of buildings.
Where the right-of-way of a proposed highway or other
transportation project necessitates the taking of a portion of a building
or structure, the Department of Transportation may acquire, by condemnation or
purchase, the entire building or structure, together with the right to enter
upon the surrounding land for the purpose of removing said building or
structure, upon a determination by the Department of Transportation based upon
an affidavit of an independent real estate appraiser that the partial taking
will substantially destroy the economic value or utility of the building or
structure and (i) that an economy in the expenditure of public funds will be
promoted thereby; or (ii) that it is not feasible to cut off a portion of
the building without destroying the entire building; or (iii) that the
convenience, safety or improvement of the highway transportation
project will be promoted thereby; provided, nothing herein contained shall
be deemed to give the Department of Transportation authority to condemn the
underlying fee of the portion of any building or structure which lies outside
the right-of-way of any existing or proposed transportation project,
including a public road, street or highway."
SECTION 9. G.S. 136-19.5 reads as rewritten:
"§ 136-19.5. Utility right-of-way agreements.
(a) Before the Department of Transportation acquires or proposes to acquire additional rights-of-way for the purpose of accommodating the installation of utilities as authorized by G.S. 136-18 and G.S. 136-19, there shall first be voluntary agreements with the appropriate utilities regarding the acquisition and use of the particular right-of-way and requiring the payment to the Department of Transportation for or recapture of all of its costs associated with that acquisition, including the use of funds allocated to such acquisition. Such agreements may take into account the fact that more than one utility can make use of the right-of-way. No such agreement shall constitute a sale of the right-of-way and all such rights-of-way shall remain under the control of the Department of Transportation.
(b) A prior
agreement between the Department of Transportation and the affected utilities
may be entered into but is not required when the acquisition of right-of-way is
for the purpose of relocation of utilities due to construction, reconstruction,
or rehabilitation of a State highway transportation project. The
Department of Transportation shall notify the affected utility whose facilities
are being relocated and the affected utility may choose not to participate in
the proposed plan for right-of-way acquisition. The decision not to participate
in the proposed plan of right-of-way acquisition shall not affect any other
rights the utility may have as a result of the relocation of its lines or
pipelines.
(c) Whenever the Department of Transportation requires the relocation of utilities located in a right-of-way for which the utility owner contributed to the cost of acquisition, the Department of Transportation shall reimburse the utility owner for the cost of moving those utilities.
(d) Any additional
right-of-way obtained pursuant to this section which is part of a railroad
right-of-way shall be returned to the railroad or its successor in interest
when the Department of Transportation and the affected utilities agree that the
additional right-of-way is no longer useful for utility purposes and the
Department of Transportation determines that it is no longer useful for highway
transportation purposes."
SECTION 10. G.S. 136-26 reads as rewritten:
"§ 136-26.
Closing of State highways transportation infrastructure during
construction; injury to barriers, warning signs, etc.
If it shall appear necessary to the Department of
Transportation, its officers, or appropriate employees, to close any road or
highway transportation infrastructure coming under its jurisdiction
so as to permit of proper completion of work which is being performed, such
the Department of Transportation, its officers or employees, may
close, or cause to be closed, the whole or any portion of such road or
highway transportation infrastructure deemed necessary to be
excluded from public travel. While any such road or highway, transportation
infrastructure, or portion thereof, is so closed, or while any such road
or highway,transportation infrastructure, or portion thereof,
is in process of construction or maintenance, such the Department
of Transportation, its officers or appropriate employees, or its contractor,
under authority from such the Department of Transportation, may
erect, or cause to be erected, suitable barriers or obstruction thereon; may
post, or cause to be posted, conspicuous notices to the effect that the road
or highway,transportation infrastructure, or portion thereof, is
closed; and may place warning signs, lights and lanterns on such road or
highway,transportation infrastructure, or portions thereof. When such
road or highway infrastructure is closed to the public or in process
of construction or maintenance, as provided herein, any person who willfully
drives into new construction work, breaks down, removes, injures or destroys
any such barrier or barriers or obstructions on the road closed or being
constructed, or tears down, removes or destroys any such notices, or
extinguishes, removes, injures or destroys any such warning lights or lanterns
so erected, posted or placed, shall be guilty of a Class 1 misdemeanor."
SECTION 11. G.S. 136-27.1 reads as rewritten:
"§ 136-27.1. Relocation of water and sewer lines of municipalities and nonprofit water or sewer corporations or associations.
The Department of Transportation shall pay the nonbetterment
cost for the relocation of water and sewer lines, located within the existing
State highway transportation project right-of-way, that are
necessary to be relocated for a State highway transportation improvement
project and that are owned by: (i) a municipality with a population of 5,500 or
less according to the latest decennial census; (ii) a nonprofit water or sewer
association or corporation; (iii) any water or sewer system organized pursuant
to Chapter 162A of the General Statutes; (iv) a rural water system operated by a
County as an enterprise system; (v) any sanitary district organized pursuant to
Part 2 of Article 2 of Chapter 130A of the General Statutes; or (vi)
constructed by a water or sewer system organized pursuant to Chapter 162A of
the General Statutes and then sold or transferred to a municipality with a
population of greater than 5,500 according to the latest decennial
census."
SECTION 12. G.S. 136-27.2 reads as rewritten:
"§ 136-27.2. Relocation of county-owned natural gas lines located on Department of Transportation right-of-way.
The Department of Transportation shall pay the nonbetterment
cost for the relocation of county-owned natural gas lines, located within the
existing State highway transportation project right-of-way, that
the Department needs to relocate due to a State highway transportation
improvement project."
SECTION 13. G.S. 136-28.2 reads as rewritten:
"§ 136-28.2.
Relocated highways;transportation infrastructure; contracts let
by others.
The Department of Transportation is authorized to permit power
companies and governmental agencies, including agencies of the federal
government, when it is necessary to relocate a public highway transportation
infrastructure by reason of the construction of a dam, to let contracts for
the construction of the relocated highway.transportation
infrastructure. The construction shall be in accordance with the Department
of Transportation standards and specifications. The Department of
Transportation is further authorized to reimburse the power company or
governmental agency for betterments arising out of the construction of the
relocated highway,transportation infrastructure, provided the
bidding and the award is in accordance with the Department of Transportation's
regulations and the Department of Transportation approves the award of the
contract."
SECTION 14. G.S. 136-28.6 reads as rewritten:
"§ 136-28.6. Participation by the Department of Transportation with private developers.
(a) The Department
of Transportation may participate in private engineering and construction
contracts for State highways.transportation systems.
(b) In order to qualify for State participation, the project must be:
(1) The construction
of a street or highway transportation project on the
Transportation Improvement Plan adopted by the Department of Transportation; or
(2) The construction
of a street or highway transportation project on a mutually
adopted transportation plan that is designated a Department of Transportation
responsibility.
(c) Only those projects in which the right-of-way is furnished without cost to the Department of Transportation are eligible.
(d) The Department's participation shall be limited to fifty percent (50%) of the amount of any engineering contract and/or any construction contract let for the project.
(e) Department of Transportation participation in the contracts shall be limited to cost associated with normal practices of the Department of Transportation.
(f) Plans for the project must meet Department of Transportation standards and shall be approved by the Department of Transportation.
(g) Projects shall be constructed in accordance with the plans and specifications approved by the Department of Transportation.
(h) The Secretary shall report in writing, on a quarterly basis, to the Joint Legislative Commission on Governmental Operations on all agreements entered into between a private developer and the Department of Transportation for participation in private engineering and construction contracts under this section.
(i) Counties
and municipalities may participate financially in private engineering, land
acquisition, and construction contracts for transportation projects pertaining
to streets or highways which meet the requirements of subsection (b) of
this section within their jurisdiction."
SECTION 15. G.S. 136-28.9 reads as rewritten:
"§ 136-28.9. Retainage - construction contracts.
Notwithstanding the provisions of G.S. 147-69.1, 147-77,
147-80, 147-86.10, and 147-86.11, or any other provision of the law, the
Department of Transportation is authorized to enter into trust agreements with
banks and contractors for the deposit of retainage and for the payment to
contractors of income on these deposits, in connection with highway transportation
construction contracts, in trust accounts with banks in accordance with
Department of Transportation regulations, including deposit insurance and
collateral requirements. The Department of Transportation may contract with those
banks without trust departments in addition to those with trust departments.
Funds deposited in any trust account shall be invested only in bonds,
securities, certificates of deposits, or other forms of investment authorized
by G.S. 147-69.1 for the investment of State funds. The trust agreement
may also provide for interest to be paid on uninvested cash balances."
SECTION 16. G.S. 136-29 reads as rewritten:
"§ 136-29.
Adjustment and resolution of highway construction Department of
Transportation contract claim.
(a) A contractor
who has completed a contract with the Department of Transportation to
construct a State highway let in accordance with Article 2 of this
Chapter and who has not received the amount he claims is due under the
contract may submit a verified written claim to the State Highway
Administrator Secretary of Transportation for the amount the
contractor claims is due. The claim shall be submitted within 60 days after the
contractor receives his final statement from the Department and shall state the
factual basis for the claim.
The State Highway Administrator Secretary or the
Secretary's designee shall investigate a submitted claim within 90 days of
receiving the claim or within any longer time period agreed to by the State
Highway Administrator Secretary or the Secretary's designee and the
contractor. The contractor may appear before the State Highway
Administrator,Secretary or the Secretary's designee, either in
person or through counsel, to present facts and arguments in support of his the
claim. The State Highway Administrator Secretary or the Secretary's
designee may allow, deny, or compromise the claim, in whole or in part. The
State Highway Administrator Secretary or the Secretary's designee shall
give the contractor a written statement of the State Highway Administrator's
decision on the contractor's claim.
(b) A contractor
who is dissatisfied with the State Highway Administrator's Secretary
or the Secretary's designee's decision on the contractor's claim may
commence a contested case on the claim under Chapter 150B of the General
Statutes. The contested case shall be commenced within 60 days of receiving the
State Highway Administrator's written statement of the decision.
(c) As to any
portion of a claim that is denied by the State Highway Administrator,Secretary
or the Secretary's designee, the contractor may, in lieu of the procedures
set forth in subsection (b) of this section, within six months of receipt of
the State Highway Administrator's final decision, institute a civil
action for the sum he claims to be entitled to under the contract by filing a
verified complaint and the issuance of a summons in the Superior Court of Wake
County or in the superior court of any county where the work under the contract
was performed. The procedure shall be the same as in all civil actions except
that all issues shall be tried by the judge, without a jury.
(d) The provisions
of this section shall be part of every contract for State highway
construction let in accordance with Article 2 of this Chapter
between the Department of Transportation and a contractor. A provision in a
contract that conflicts with this section is invalid."
SECTION 17. G.S. 136-35 reads as rewritten:
"§ 136-35. Cooperation with other states and federal government.
It shall also be the duty of the Department of
Transportation, where possible, to cooperate with the state highway commissions
of other states and with the federal government in the correlation of roads and
other transportation systems so as to form a system of intercounty,
interstate, and national highways.highways and transportation
systems. The Department of Transportation may enter into reciprocal
agreements with other states and the Federal Highway Administration United
States Department of Transportation to perform inspection work and to pay
reasonable fees for inspection work performed by others in connection with
supplies and materials used in highway transportation construction
and repair."
SECTION 18. The title of Article 2A of Chapter 136 of the General Statutes and G.S. 136-44.1 read as rewritten:
"Article 2A.
State Roads Transportation Generally.
"§ 136-44.1.
Statewide road transportation system; policies.
The Department of Transportation shall develop and maintain a
statewide system of roads and highways roads, highways, and other
transportation systems commensurate with the needs of the State as a whole
and it shall not sacrifice the general statewide interest to the purely local
desires of any particular area. The Board of Transportation shall formulate
general policies and plans for a statewide system of highways.transportation
system. The Board shall formulate policies governing the construction,
improvement and maintenance of roads and highways roads, highways, and
other transportation systems of the State with due regard to farm-to-market
roads and school bus routes."
SECTION 19. G.S. 136-44.2 reads as rewritten:
"§ 136-44.2. Budget and appropriations.
The Director of the Budget shall include in the "Current
Operations Appropriations Bill" Act" an enumeration of
the purposes or objects of the proposed expenditures for each of the
construction and maintenance programs for that budget period for the State
primary, secondary, and State parks road systems.systems, and
other transportation systems. The State primary system shall include all
portions of the State highway system located both inside and outside municipal
corporate limits that are designated by N.C., U.S. or Interstate numbers. The
State secondary system shall include all of the State highway system located
both inside and outside municipal corporate limits that is not a part of the
State primary system. The State parks system shall include all State parks
roads and parking lots that are not also part of the State highway system.
The transportation systems shall include State-maintained, nonhighway modes of
transportation as well.
All construction and maintenance programs for which appropriations are requested shall be enumerated separately in the budget. Programs that are entirely State funded shall be listed separately from those programs involving the use of federal-aid funds. Proposed appropriations of State matching funds for each of the federal-aid construction programs shall be enumerated separately as well as the federal-aid funds anticipated for each program in order that the total construction requirements for each program may be provided for in the budget. Also, proposed State matching funds for the highway planning and research program shall be included separately along with the anticipated federal-aid funds for that purpose.
Other program categories for which appropriations are requested, such as, but not limited to, maintenance, channelization and traffic control, bridge maintenance, public service and access road construction, transportation projects and systems, and ferry operations shall be enumerated in the budget.
The Department of Transportation shall have all powers necessary to comply fully with provisions of present and future federal-aid acts. No federally eligible construction project may be funded entirely with State funds unless the Department of Transportation has first reported to the Joint Legislative Commission on Governmental Operations. For purposes of this section, "federally eligible construction project" means any construction project except secondary road projects developed pursuant to G.S. 136-44.7 and 136-44.8 eligible for federal funds under any federal-aid act, whether or not federal funds are actually available.
The "Current Operations Appropriations Bill"Act"
shall also contain the proposed appropriations of State funds for use in each
county for maintenance and construction of secondary roads, to be allocated in
accordance with G.S. 136-44.5 and 136-44.6. State funds appropriated for
secondary roads shall not be transferred nor used except for the construction
and maintenance of secondary roads in the county for which they are allocated
pursuant to G.S. 136-44.5 and 136-44.6.
If the unreserved credit balance in the Highway Fund on the last day of a fiscal year is greater than the amount estimated for that date in the Current Operations Appropriations Act for the following fiscal year, the excess shall be used in accordance with this paragraph. The Director of the Budget may allocate part or all of the excess among reserves for access and public roads, for unforeseen events requiring prompt action, or for other urgent needs. The amount not allocated to any of these reserves by the Director of the Budget shall be credited to a reserve for maintenance. The Board of Transportation shall report monthly to the Joint Legislative Transportation Oversight Committee and the Fiscal Research Division on the use of funds in the maintenance reserve.
The Department of Transportation may provide for costs incurred or accrued for traffic control measures to be taken by the Department at major events which involve a high degree of traffic concentration on State highways, and which cannot be funded from regular budgeted items. This authorization applies only to events which are expected to generate 30,000 vehicles or more per day. The Department of Transportation shall provide for this funding by allocating and reserving up to one hundred thousand dollars ($100,000) before any other allocations from the appropriations for State maintenance for primary, secondary, and urban road systems are made, based upon the same proportion as is appropriated to each system."
SECTION 20. G.S. 136-44.2C reads as rewritten:
"§ 136-44.2C. Special appropriations for State construction.
Special appropriations for the construction of State highways
may be used for the planning, design, right-of-way acquisition, and
construction of highway transportation projects for the State Highway
Transportation System and Federal Aid System, including secondary
roads, contained in the Transportation Improvement Program prepared pursuant to
G.S. 143B-350(f)(4). Funding from the special appropriations used for
secondary road projects in the Transportation Improvement Program is not
subject to the allocation formula and restrictions of G.S. 136-44.2, 136-44.2A,
or 136-44.5."
SECTION 21. G.S. 136-44.4 reads as rewritten:
"§ 136-44.4. Annual construction program; State primary and urban systems.
The Department of Transportation shall develop an annual construction program for the state-funded improvements on the primary and urban system highways and for all other federal-aid construction programs which shall be approved by the Board of Transportation. It shall include a statement of the immediate and long-range goals. The Department shall develop criteria for determining priorities of projects to insure that the long-range goals and the statewide needs as a whole are met, which shall be approved by the Board of Transportation. The annual construction program shall list all projects according to priority. A brief description of each project shall be given, identifying the highway number, county, nature of the improvement and the estimated cost of the project shall be indicated. Other transportation systems shall be similarly identified. Copies of the most recent annual work program shall be made available to any member of the General Assembly upon request. The Department of Transportation shall make annual reports after the completion of the fiscal year to be made available to the legislative committees and subcommittees for highway matters, county commissioners, and other persons upon request. These reports shall indicate the expenditure on each of the projects and the status of all projects set out in the work program."
SECTION 22. The title of Article 3A of Chapter 136 of the General Statutes reads as rewritten:
"Article 3A.
Streets and Highways Transportation Systems in
and around Municipalities."
SECTION 23. G.S. 136-66.3 reads as rewritten:
"§ 136-66.3. Local government participation in improvements to the State highway system.
(a) Municipal
Participation Authorized. - A municipality may, but is not required to,
participate in the right-of-way and construction cost of a State highway transportation
improvement approved by the Board of Transportation under G.S. 143B-350(f)(4)
that is located in the municipality or its extraterritorial jurisdiction.
(b) Process for Initiating Participation. - A municipality interested in participating in the funding of a State highway improvement project may submit a proposal to the Department of Transportation. The Department and the municipality shall include their respective responsibilities for a proposed municipal participation project in any agreement reached concerning participation.
(c) Type of
Participation Authorized. - A municipality is authorized and empowered to
acquire land by dedication and acceptance, purchase, or eminent domain, and
make improvements to portions of the State highway transportation system
lying within or outside the municipal corporate limits utilizing local funds
that have been authorized for that purpose. All improvements to the State
highway system transportation systems shall be done in accordance
with the specifications and requirements of the Department of Transportation.
(c1) No TIP Disadvantage for
Participation. - If a county or municipality participates in a State highway
transportation system improvement project, as authorized by this section,
or by G.S. 136-51 and G.S. 136-98, the Department shall ensure that
the local government's participation does not cause any disadvantage to any
other project in the Transportation Improvement Program under G.S. 143B-350(f)(4).
(c2) Distribution of State Funds Made Available by County or Municipal Participation. - Any State or federal funds allocated to a project that are made available by county or municipal participation in a project contained in the Transportation Improvement Program under G.S. 143B-350(f)(4) shall remain in the same funding region that the funding was allocated to under the distribution formula contained in G.S. 136-17.2A.
(c3) Limitation on Agreements. - The Department shall not enter into any agreement with a county or municipality to provide additional total funding for highway construction in the county or municipality in exchange for county or municipal participation in any project contained in the Transportation Improvement Program under G.S. 143B-350(f)(4).
(d) Authorization
to Participate in Development-Related Improvements. - When in the review and
approval by a local government of plans for the development of property
abutting the a State highway transportation system
it is determined by the municipality that improvements to the State highway
system are necessary to provide for the safe and orderly movement of traffic,
the local government is authorized to construct, or have constructed, said
improvements to the State highway transportation system in vicinity
of the development. For purposes of this section, improvements include but are
not limited to additional travel lanes, turn lanes, curb and gutter, and drainage
facilities.facilities, and other transportation system improvements.
All improvements to the a State highway transportation system
shall be constructed in accordance with the specifications and requirements of
the Department of Transportation and be approved by the Department of
Transportation.
(e) Authorization
to Participate in Project Additions. - Pursuant to an agreement with the
Department of Transportation, a county or municipality may reimburse the
Department of Transportation for the cost of all improvements, including
additional right-of-way, for a street or street, highway
improvement projects projects, or other transportation system
improvements approved by the Board of Transportation under G.S. 143B-350(f)(4),
that are in addition to those improvements that the Department of
Transportation would normally include in the project.
(e1) Reimbursement Procedure. - Upon request of the county or municipality, the Department of Transportation shall allow the local government a period of not less than three years from the date construction of the project is initiated to reimburse the Department their agreed upon share of the costs necessary for the project. The Department of Transportation shall not charge a local government any interest during the initial three years.
(f) Report to General Assembly. - The Department shall report in writing, on a monthly basis, to the Joint Legislative Commission on Governmental Operations on all agreements entered into between counties, municipalities and the Department of Transportation. The report shall state in summary form the contents of such agreements.
(g) Local
Government Acquisition of Rights-of-Way. - In the acquisition of rights-of-way
for any State highway system street or street, highway, or
other transportation project, the county or municipality shall be vested
with the same authority to acquire such rights-of-way as is granted to the
Department of Transportation in this Chapter. In the acquisition of such rights-of-way,
counties and municipalities may use the procedures provided in Article 9 of
this Chapter, and wherever the words "Department of Transportation"
appear in Article 9 they shall be deemed to include "county,"
"municipality" or local governing body, and wherever the words "Administrator,"
"Administrator of Highways," "Administrator of the Department of
Transportation," or "Chairman of the Department of
Transportation" appear in Article 9 they shall be deemed to include
"county or municipal clerk". It is the intention of this subsection
that the powers herein granted to municipalities for the purpose of acquiring
rights-of-way shall be in addition to and supplementary to those powers granted
in any local act or in any other general statute, and in any case in which the
provisions of this subsection or Article 9 of this Chapter are in conflict with
the provisions of any local act or any other provision of any general statute,
then the governing body of the county or municipality may in its discretion
proceed in accordance with the provisions of such local act or other general
statute, or, as an alternative method of procedure, in accordance with the
provisions of this subsection and Article 9 of this Chapter.
(h) Department
Authority Concerning Rights-of-Way. - In the absence of an agreement, the
Department of Transportation shall retain authority to pay the full cost of
acquiring rights-of-way where the proposed project is deemed important to a
coordinated State highway transportation system.
(i) Changes to Local Government Participation Agreement. - Either the local government or the Department of Transportation may at any time propose changes in the agreement setting forth their respective responsibilities by giving notice to the other party, but no change shall be effective until it is adopted by both the municipal governing body and the Department of Transportation.
(j) Local
Governments Party to Rights-of-Way Proceeding. - Any municipality that agrees
to contribute any part of the cost of acquiring rights-of-way for any State highway
system street or highway transportation system shall be a proper
party in any proceeding in court relating to the acquisition of such rights-of-way.
(k) Repealed by Session Laws 2008-180, s. 6, effective August 4, 2008."
SECTION 24. G.S. 136-66.5 reads as rewritten:
"§ 136-66.5.
Improvements in urban area streets areas to reduce traffic
congestion.
(a) The Department
of Transportation is authorized to enter into contracts with municipalities for
highway improvement projects which are a part of an overall plan
authorized under the provisions of section 135 of Title 23 of the United States
Code, the purpose of which is to facilitate the flow of traffic people
and goods in urban areas. In connection with these contracts, the
Department of Transportation and the municipalities are authorized to enter
into contracts for improvement projects on the municipal system of streets, and
pursuant to contract with the municipalities, the Department of
Transportation is authorized to construct or to let to contract the said
improvement projects on streets on the municipal street system or other
transportation system; provided that no portion of the cost of the
improvements made on the municipal street system shall be paid from
Department of Transportation funds except the proportionate share of funds
received from the Federal Highway Administration United States
Department of Transportation and allocated for the purposes set out in
section 135 of Title 23 of the United States Code. Pursuant to contract with
the Department of Transportation, the municipalities may construct or let to
contract the said improvement projects on the municipal street system
and the Department of Transportation is authorized to pay over to the
municipalities the proportionate share of funds received pursuant to section
135 of Title 23 of the United States Code; provided that no portion of the
costs of the improvements made on the municipal street system shall be
paid for from the State Highway Fund except those received from the Federal
Highway Administration United States Department of Transportation and
allocated for the purpose set out in section 135 of Title 23 of the United
States Code.
(b) The
municipalities are authorized to enter into contracts with the Department of
Transportation for improvement projects which are a part of an overall plan
authorized under the provisions of section 135 of Title 23 of the United States
Code, the purpose of which is to facilitate the flow of traffic in urban areas,
on the State highway system streets within the municipalities with the approval
of the Federal Highway Administration.United States Department of
Transportation. Pursuant to contract for the foregoing improvement
projects, the municipalities are authorized to construct or let to contract the
said improvement projects and the Department of Transportation is authorized to
reimburse the municipalities for the cost of the construction of the said
improvement projects.
(c) The municipalities in which improvements are made pursuant to section 135 of Title 23 of the United States Code shall provide proper maintenance and operation of such completed projects and improvements on the municipal system streets and other transportation infrastructure or will provide other means for assuring proper maintenance and operation as is required by the Department of Transportation. In the event the municipality fails to maintain such project or provide for their proper maintenance, the Department of Transportation is authorized to maintain the said projects and improvements and deduct the cost from allocations to the municipalities made under the provisions of G.S. 136-41.1."
SECTION 25. G.S. 136-102.2 reads as rewritten:
"§ 136-102.2. Authorization required for test drilling or boring upon right-of-way; filing record of results with Department of Transportation.
No person, firm or corporation shall make any test drilling
or boring upon the right-of-way of any road or highway,transportation
system, under the jurisdiction of the Department of Transportation, until
written authorization has been obtained from the owner or the person in charge
of the land on which the highway easement is located. A complete record showing
the results of the test drilling or boring shall be filed forthwith with the chairman
[Secretary] of the Department of Transportation and shall be a public record.
This section shall not apply to the Department of Transportation making test
drilling or boring for highway purposes only."
SECTION 26. G.S. 136-103.1 reads as rewritten:
"§ 136-103.1. Outside counsel.
The Attorney General is authorized to employ outside counsel
as he deems necessary for the purpose of obtaining title abstracts and title
certificates for highway transportation system rights-of-way and
for assistance in the trial of condemnation cases involving the acquisition of
rights-of-way and other interests in land for the purpose of highway transportation
construction. Compensation, as approved by the Attorney General, shall be
paid out of the appropriations from the Highway Fund."
SECTION 27. G.S. 136-177 reads as rewritten:
"§ 136-177. Limitation on funds obligated from Trust Fund.
In a fiscal year, the Department of Transportation may not obligate more Trust Fund revenue, other than revenue allocated for city streets under G.S. 136-176(b)(3) or secondary roads under G.S. 136-176(b)(4) and G.S. 20-85(b), to construct or improve highways and other forms of transportation than the amount indicated in the following table:
Fiscal Year Maximum Expenditure
1989-90 $200,000,000
1990-91 250,000,000
1991-92 300,000,000
1992-93 400,000,000
1993-94 500,000,000
1994-95 and following years Unlimited
The amount of revenue credited to the Trust Fund in a fiscal year under G.S. 136-176(a) that exceeds the maximum allowable expenditure set in the table above may be used only for preliminary planning and design and the acquisition of rights-of-way for scheduled highways and highway improvements to be funded from the Trust Fund."
SECTION 28. This act becomes effective August 1, 2009.
In the General Assembly read three times and ratified this the 1st day of July, 2009.
s/ Walter H. Dalton
President of the Senate
s/ Joe Hackney
Speaker of the House of Representatives
s/ Beverly E. Perdue
Governor
Approved 10:34 a.m. this 10th day of July, 2009