NOTICE IS HEREBY GIVEN THAT THE Bernalillo County Board of Commissioners on October 8, 2013 at the hour of 5:00 p.m., at the Vincent E. Griego Chambers, One Civic Plaza NW, Albuquerque, New Mexico 87102, will consider adopting the proposed substitute ordinance: “AN ORDINANCE PERTAINING TO THE USE OF COUNTY RIGHT-OF-WAY BY UTILITIES AND OTHER PERSONS
SECTION 1: GENERAL POLICY AND GOALS OF ORDINANCE KNOWN AS THE
“TAXPAYER PROTECTION ACT”:
AMENDMENTS MADE AUGUST 13, 2013 AT THE ADMINISTRATIVE COMMISSION MEETING INCLUDE:
BOARD OF COUNTY COMMISSIONERS
ORDINANCE NO. _______________
AN ORDINANCE PERTAINING TO THE USE OF COUNTY RIGHT-OF-WAY BY UTILITIES AND OTHER PERSONS
SECTION 1: GENERAL POLICY AND GOALS OF ORDINANCE KNOWN AS THE
“TAXPAYER PROTECTION ACT ”:
Bernalillo County (hereinafter "County") owns, maintains, and/or is responsible for its roadways, easements, and rights-of-way within the unincorporated areas of the County.
The Board of County Commissioners has the statutory authority and responsibility to make such orders concerning County property, including right-of-way, as it may deem expedient. NMSA 1978, Section 4-38-13. The Board of County Commissioners must grant the use of County-owned property pursuant to New Mexico statutes and the New Mexico Constitution. In the absence of specific statutory provision to the contrary, the Board of County Commissioners "represents the county and has the care of the county property and the management of the interest of the county in all cases where no other provision is made by law." NMSA 1978. Section 4-38-18.
While regulated public utilities are "authorized to place their pipes, poles, wires, cables, conduits, towers, piers, stations and other necessary fixtures, appliances and structures, upon or across any of the public roads, streets, alleys, highways and waters in the state," such use of County property is “subject to the regulation of the county commissioners..." NMSA 1978, Section 62-1-2.
Additionally, non-regulated mutual domestic water associations and water and sanitation districts also require usage of county right-of-way. The Board of County Commissioners wishes to foster the continued expansion of utility service throughout the unincorporated areas of the County. The Board will require the County to be compensated for the reasonable costs involved in the use of the rights-of-way, for administrative expenses incurred in the processing of the necessary permits, as well as for the required monitoring of the progress of work and protection of the public health, safety and welfare. Further, NMSA 1978, Section 62-1-3, the Board of County Commissioners is authorized to impose charges for reasonable actual expenses incurred in the granting of such right-of-way use to a utility for use of county right-of-way. Harmonizing the language of Article IX, Section 14 of the New Mexico Constitution with the aforementioned statutes, it is manifest that the County must take the proper steps to ensure that utilities and other persons wishing to use County right-of-way compensate the County for actual reasonable expenses relating to their use of the County's property.
Utilities and others persons using County right-of-way have a distinct user population who benefit from such use. Also, identified County costs are attributable to such uses necessary to provide these benefits and should be borne by the user population. Other County residents should not be made to subsidize the County costs resulting from these uses by utilities and other persons.
Therefore, pursuant to the conditions of this Ordinance, the Board of County Commissioners will require parties wishing to use County right-of-way to compensate the County for all of the County's reasonable costs incurred directly and indirectly in authorizing the use of County right-of-way.
Further, the Board of County Commissioners will require utilities or persons using County right-of-way to adequately indemnify, hold harmless and defend the County against all possible claims of loss or damage arising out of the use of the right-of-way.
All uses of County right-of-way must be coordinated to ensure the maintenance of public health, safety and welfare pursuant to NMSA 1978, Section 4-37-1; to allow the Board of County Commissioners to the extent permitted by law, to prioritize the use of County right-of-way; and to achieve County goals. It is a goal of the Board of County Commissioners to reduce the possibility of unnecessary duplication and economic waste in the use of County right-of-way and to use and grant the use of its right-of-way consistent with the best interest of the County and its inhabitants. Therefore, consistent with New Mexico law, the County may deny any application for use of County right-of-way that the Board of County Commissioners finds would or may interfere with an existing use of the right-of-way by those utilities having valid permits issued by the County, or having entered into a Right-of-Way Use Agreement with the County, pursuant to the terms of this Ordinance.
In addition, consistent with New Mexico law, the Board of County Commissioners may deny any application for use of County right-of-way that the Board finds would or may duplicate the County's own planned or actual use, would negatively affect a County purpose or project, or may be harmful to the health, safety and welfare of the public.
The Board of County Commissioners adopts this Ordinance and establishes herein the administrative process utilities and other persons shall follow to gain permission to use County right-of-way, and the engineering and design standards a utility must satisfy to perform any work or place any facilities within the right-of-way and the fees to be paid therefore.
SECTION 2: DEFINITIONS:
Actual and reasonable expenses: All expenses directly or indirectly incurred by the County related to permitting the use of County right-of-way by utilities or persons, including but not limited to, the costs of mapping, managing, and coordinating the use of the right-of-way by the utilities or persons, along with the administrative and general costs related to the processing of application for use of the right-of-way, and the enforcement of the terms and conditions of this Ordinance, and any other cost or expense reasonably associated with the maintenance of the right-of-way in a manner that protects the health, safety and welfare of the public.
Annual Gross Revenue: Includes any and all revenue received by the person, company, applicant, or permittee, , derived from the sale of its utility services to customers located within the unincorporated County .
Applicant: Any utility or person requesting to enter into or use a County right-of-way pursuant to the terms and conditions of this Ordinance, or who has an existing right-of-way use agreement, or similar instrument; for the use, rent or occupation of the County’s property or right-of-way.
Company: Synonymous with “person,” “utility,” “permittee” or “applicant” as used and defined in this ordinance.
County: Bernalillo County, the Board of County Commissioners of Bernalillo County, or County management, employees, or duly authorized agents as the context requires.
County Property: Any and all roads, streets, right-of-ways, avenues, alleys, highways, public ways, sidewalks, bridges, easements, and other public structures, public places or public grounds of the County both above and beneath the surface of the County, as they now exist, or may be hereafter extended, or such as may be hereafter created within the corporate limits of the County, or as may be hereafter extended.
Emergency: Any situation necessitating excavation, use of, or entrance onto, the County right-of-way for the purpose of locating a problem area or to make repairs in a facility when circumstances are such that delay in correcting the problem or making the repair would present a substantial and real threat of injury, would harm the health, safety and welfare of the public, or would likely result in serious property loss or damage.
Facility: Any pipe, pipeline, tube, main, service vent, vault, manhole, meter, regulator, valve, conduit, pole, line, cable, anchor, structure, or object of any kind, type, manner or character, whether listed herein or not, which is or may be lawfully constructed, left, placed or maintained upon, along, above, across, under or within the right-of-way.
Permit: A Right-of-Way Use Agreement or permit, for the express purpose of renting, utilizing or using a County right-of-way.
Permittee: An applicant whose Right-of-Way Use Agreement or permit request has been submitted to Bernalillo County.
Person: Any individual, estate, trust, utility, receiver, association, subdivision of the state, cooperative, club, public or private corporation, company, firm, partnership, joint venture,syndicate, municipality or any other entity.
Right-of-Way: County property that is used, primarily but not exclusively, for the installation of facilities, including but not limited to, pipes, conduits, lines, cable, and other equipment for utility services within the County’s jurisdiction.
Right-of-Way Administrator: The individual designated by the County Manager to administer the County Right-of-Way Use Ordinance and the County right-of-way permit operation to include, but not limited to, the receipt, review, processing, approval or denial of permit applications, and maintenance of County right-of-way records as such actions relate to this Ordinance. Other County staff are responsible for the daily operations related to the County right-of-way, including but not limited to permitting, cleaning, repairing, monitoring, and enforcement. Such staff shall coordinate as necessary with the Right-of-Way Administrator in matters related to this Ordinance.
Right-of-Way Use Fee: Fee paid by persons or utilities utilizing County right-of-way pursuant to the terms and conditions of this Ordinance and a valid Right-of-Way Use Agreement.
Right-of-Way Use Agreement: Agreement entered into between a utility or person and the County for their use of County right-of-way.
Use: Performance of work within and/or occupation of County right-of-way, including but not limited to, the excavation of materials, boring, maintenance and checking of substructures and substructure openings; and/or the use of the right-of-way to place any facility thereon or therein.
Utility: Person or company, as defined in this Ordinance, whose primary function is the provision of certain services to the public or third parties, which services include but are not limited to, electrical, gas, water, wastewater, and telecommunications services.
SECTION 3. GRANT OF USAGE OF COUNTY'S RIGHT-OF-WAY
A. Unless holding a valid existing right-of-way agreement, , or similar instrument, no person may access, occupy, or otherwise use the County's right-of-way without first executing a Right-of-Way Use Agreement within ninety (90) days after the effective date of this Ordinance. Any such Right-of-Way Use Agreement shall be subject to the provisions of this Ordinance, and shall pay a charge, franchise fee, or use fee as provided in this Ordinance, as well as complying with any other applicable County ordinances or requirements regarding the use or continued use of the County’s property and its right-of-way.
B. Persons, such as regulated and unregulated utilities providing electrical, gas, water, telecommunications, and other such similar services shall negotiate and execute a Right-of-Way Use Agreement to use County property and its right-of-way. In certain limited circumstances, other persons who wish to use county property or its right-of-way may receive, through the County’s existing permitting process, a limited or incidental use permission of the County property. The determination whether a Right-of-Way Use Agreement is necessary shall rest exclusively within the County’s discretion.
C. Any person that currently uses a County property or its right-of-way by virtue of a valid existing right-of-way agreement, , or similar instrument, may, at the County’s discretion, continue to use the County property or its right-of-way with the same terms and conditions contained in the previously executed right-of-way agreement. However, if the existing right-of-way agreement does not contain any provision for payment of rents, use fees, or any other consideration for the use of the County property or its right-of-way, that person, party to such right-of-way use agreement, , or similar instrument, may be required to re-negotiate and execute, at the County’s sole discretion, a new Right-of-Way Use Agreement with the County within one hundred and eighty (180) days after the effective date of this Ordinance.
D. Any company subject to a right-of-way agreement, or similar instrument, whether as a new agreement or an existing agreement, shall recognize that such uses of County property or its right-of-way is and shall remain a non-exclusive right. The County expressly reserves the right to make or grant a similar use of said right-of-way to any other person, firm, or corporation for use of County property or its right-of-way.
E. Any use fee contained in an existing agreement or any agreement executed within ninety (90) days of the effective date of this ordinance shall be grandfathered and exempted from the use fee requirements of this Ordinance, unless specifically addressed in a different manner within a specific agreement.
SECTION 4: RIGHT-OF-WAY USE AGREEMENTS: REQUIREMENTS, FEES, ISSUANCE/DENIAL, AND APPEAL
- Any person or party wishing to obtain a Right-of-Way Use Agreement from the County
pursuant to this Ordinance shall submit the following information to the Right-of-Way Administrator:
1. The name, telephone number, address, place of business of the applicant, and his/her engineers and/or contractors.
2. A detailed statement of the purpose for the use of county right-of-way; the purpose and function of any facility to be located within the right-of-way; ; all proposed or existing rates or charges for such services; and terms and conditions of such services.
3. A detail drawing and written description of the location and dimensions of the proposed use of the County’s property and its right-of-way, including a plan view and cross-section view of the proposed use sufficient to indicate the placement of any facilities or to locate the work to be performed; five (5) complete sets of drawings and plans shall be submitted for review.
4. The method by which the proposed use within the right-of-way will be accomplished, including an estimate of the amount of time required to complete any actual work to be performed within the right-of-way including backfilling and removal of all obstructions, materials and debris, and restoration of the surface. The applicant's authority to use the county right-of-way shall be limited to the purposes and work plan specifically authorized by the agreement.
5. Existing utility systems not seeking permission to locate specific improvements as described in Paragraphs 3 and 4 above, a system-wide map or schematic. Such information must be in sufficient detail to adequately represent the location, extent, type, and size of the components of the system located in County right-of-way. The scope of the information provided shall be acceptable to the County and the determination as to the adequacy of the information shall rest exclusively within the County’s discretion. This information shall be submitted in an electronic format acceptable to the County for inclusion in the County’s GIS database.
6. Proof of membership in the New Mexico One Call (811) system.
7. If the applicant determines that any portion of the required information is not applicable, the applicant may file a written waiver request with the Right-of-Way Administrator, including the justification supporting the request. The Right-of-Way Administrator shall provide a written response within five (5) working days. Waivers may be granted if they do not adversely impact County interests or public safety.
A. In all cases where the use or occupancy of County property or its right-of-way is to be performed by a utility, whether for electrical, telecommunications, water, or other similar services, the utility must be the Applicant.
B. Any company or person desiring to, or currently using or occupying County property or its right-of-way shall be required to provide proof of adequate insurance in an amount satisfactory to the County for any and all claims or damages arising out of bodily injury, including death, to any party including the applicant, and its employees and agents and the County employees and agents, and from claims for damaged property, which may arise out of, or result from, the applicant's use of County right-of-way, including completed or ongoing operations performed within the County right-of-way. At a minimum, the policy coverage and limits shall be those set forth in § 41-4-19 NMSA.
C. Any company or person desiring to, or currently using or occupying County property or its right-of-way must agree to defend, hold harmless, and indemnify the County and its officers, agents and employees, against all claims, losses and damages to persons or property on account of or resulting from the intentional or negligent conduct on the part of the person’s use of County right-of-way, or any work, duties, or obligations performed pursuant to the terms of this Ordinance.
D. No Right-of-Way Use Agreement or permit shall be issued until proof of adequate insurance has been provided by the applicant to the Right-of-way Administrator in accordance with applicable State regulations.
E. Prior to executing a Right-of-Way Use Agreement or permit to use County property or its right-of-way, a person shall submit an application and pay a non-refundable application fee to the Right-of-Way Administrator. This application fee shall be an administrative fee for the costs of processing the application and for time of county employees in determining the suitability of the proposed Right-of-Way Use Agreement. The application fee is separate and in addition to the charge, fee, rent, and any other consideration for the use and occupancy of the County’s property and its right-of-way for the duration of the proposed Right-of-Way Use Agreement or permit. The application fee shall be assessed according to the fee schedule for permit fees established by the Board of County Commissioners in accordance with Section 5.G.c.
F. The application will be reviewed to determine, at a minimum, if it is consistent with the terms and conditions of this Ordinance; whether it will impact upon or impair other permitted uses or planned projects; whether the use of the right-of-way can be accomplished pursuant to the engineering and construction standards set forth by any and all applicable sections of the County Code, policies, and/or standards is not detrimental to the health, safety and welfare of the public.
G. The County expressly reserves the right to determine whether the application or the proposed uses of the County’s property and its right-of-way are sufficient and suitable to be incorporated in to a Right-of-Way Use Agreement, and also expressly reserves the right to mandate any other conditions and terms as the County deems necessary. The County reserves the right to deny any application or proposed use of the County property and its right-of-way.
H. If the County, through the Right-of-Way Administrator, approves an application for a Right-of-Way Use Agreement or permit, it will be incumbent on the applicant to work closely with the County to promptly formalize the terms of the Right-of-Way Use Agreement into a specific Right-of-Way Use Agreement for approval by the Board of County Commissioners or the County Manager, depending on the size of the Right-of-Way Use fee.
I. If the County, through the Right-of-Way Administrator, denies an application, or otherwise cannot come to terms with persons wishing to utilize the County property or its right-of-way, the Right-of-Way Administrator shall deny the application by providing written notice to the applicant by U.S. Mail to the address listed on the application. The aggrieved applicant shall have the right to appeal the decision of Right-of-Way Administrator to the County Manager within thirty (30) days of the written denial letter. The County Manager shall review the appeal independently and may negotiate any terms and conditions deemed necessary.
J. Any applicable Right-of-Way Use Agreement negotiated with the Right-of-Way Administrator and/or County Manager will not be valid and enforceable unless presented and approved by the Board of County Commissioners. The Board of County Commissioners shall have the right to approve, deny, modify or otherwise place any other conditions or terms on the Right-of-Way Use Agreement. Right-of-Way Use Agreements for persons or companies may be approved administratively, as allowed by law.
K. A Right-of-Way Use Agreement shall not exceed twenty-five (25) years in duration. The County expressly reserves the right to enter into agreements for less than a twenty-five (25) year term, and expressly reserves the right to incorporate early termination clauses within specific Right-of-Way Use Agreements, at its discretion.
L. Failure of a person with existing facilities in County right-of-way to formalize a specific Right-of-Way Use Agreement with the County will result in removal of their facilities from County property and its right-of-way. If such removal is not accomplished within the time frame established by the County, the County may remove and dispose of, or disable, these facilities itself, as allowed by law. The County may assess the Permittee for the cost of the work and for any other expenses or damages resulting from Permittee’s failure to perform. The Permittee shall promptly remit to the County the amount assessed.
SECTION 5. RIGHT-OF-WAY USE AGREEMENT FEES
A. Persons or companies currently using or occupying; or desiring to use or occupy County property and its right-of-way shall pay an annual use fee to the County, formalized in a specific Right-of-Way Use Agreement. Every use agreement shall provide for payment in the form of an annual use fee, to the County for the use and occupancy of the County property and its right-of-way.
B. The annual use fee, at the request of the person seeking a Right of Way Use Agreement and upon approval of County staff, will be calculated by an “assessed value” formula based upon “assessed value” as set out herein. This fee may encompass payment of all permit fees, such as fees for accessing the right of way, curb cuts, and permitting associated with the applicant’s use of the right of way, only to the extent that such fees are expressly contemplated in an use agreement and constitute “bargained for consideration” for entering into a Right of Way Use Agreement.
C. The “assessed usage fee” shall be calculated as follows:
a. A person subject to the assessed value shall first provide, annually on a date determined by the County, the locations and quantity (in square feet) of all rights-of-way that it currently uses or intends to utilize for its utility or other services, inclusive of all existing infrastructure. This information may be independently verified by the County, through inspection, third party sources, or in any other manner the County may require.
b. The County will establish a monetary value for this verified square footage using data obtained from the County Assessor. This value includes, but is not limited to, the annual assessed value of the right-of-way utilized by the person or utility.
c. Using this square footage, the County will charge an annual usage fee as a percentage of the assessed value of the square footage utilized by the person or utility as established in the Assessed Value Fee schedule. Notwithstanding the application of the aforementioned formula, at no time should the assessed value charge exceed three percent (3%) of the person, applicant, or utility’s gross annual income in the unincorporated area of Bernalillo County, unless specifically addressed within a specific Right-of-Way Use Agreement.
d. The County shall have the right to review or audit the company’s books and records in accordance with regularly accepted accounting and audit standards regarding any amount paid under this Ordinance. The County shall give written notice to the company of any additional amount owed to the County as a result of the audit. The additional amount due the County shall be paid thirty (30) days following the determination that such amount is due and payable. The company shall keep its books of account and records for a period of six (6) years, and the County reserves the right to audit such books within that period for the purposes of calculating payments to the County pursuant to this Ordinance.
The fee provided herein shall constitute the monetary rental and payment by the company to the County for the company’s special use and occupancy of the County’s property and right-of-way.
D. Payments may be made as a yearly lump-sum payment, in equal pro-rated quarterly installments, or in equal pro-rated monthly installments during the following year.
E. Other fees and charges
a. Any administrative, application or permitting fees, charged pursuant to this Ordinance or any other County Ordinance is separate from the Right-of-Way Use Fee, unless specifically calculated and addressed within a specific Right-of-Way Use Agreement. All such administrative, application or permitting fees are non-refundable.
b. Any use fee is specifically for the purpose of compensating the County for the valuable use of its property and right-of-way, and shall not waive or obviate the company’s payment of any taxes, including but not limited to, ad valorem property taxes, sales or gross receipts taxes, special assessments, or charges.
c. Upon request by an applicant, the County will consider and may incorporate specific language into a Right-of-way Use Agreement that provides for the issuance of ‘no cost’ permits when the ‘use’ fee has been negotiated to include such construction permitting fees.
F. Alternative Use Fee Agreement
Nothing herein shall preclude the Applicant from negotiating an alternative agreement with the County, provided that the overall cost shall not exceed the use fee calculation and the costs are substantially comparative.
G. Administration and Fee
a. Any fees applicable under this article shall be reviewed from time to time by the county manager and any changes to these fees shall be made by resolution of the Board of County Commissioners.
b. The deputy county manager of finance for the county shall establish an account to deposit fees collected. These fees will be made available to the county manager each fiscal year to cover the cost of administering and maintaining the county’s right-of-way.
c. The application fee, as applicable under this article, shall be established by resolution of the Board of County Commissioners. Such fees shall be reviewed from time to time by the county manager and any changes to these fees shall be made by resolution.
d. The assessed value fee schedule, as applicable under this Article, shall be established by resolution of the Board of County Commissioners. Such fees shall be reviewed from time to time by the county manager and any changes to these fees shall be made by resolution.
SECTION 6: CONDITIONS OF USE OF COUNTY RIGHT-OF-WAY PURSUANT TO AN EXISTING OR APPROVED RIGHT-OF-WAY USE AGREEEMENT
- Except as otherwise provided in this Ordinance, no person wishing to enter into a
Right-of-Way Use Agreement may commence any use or occupancy of County property or its right-of-way unless and until such agreement for such use is obtained from the County. It shall be unlawful for any person or party to use County right-of-way without first securing a Right-of-Way Use Agreement from the County and complying fully with all the provisions of this Ordinance, and any related regulations that have been or may be adopted by the County.
- Generally, pursuant to existing County ordinance, a permit is required for any work or
usage of any County right-of-way, including but not limited to excavation within the right-of-way, boring of any substructure opening, aerial use of County right-of-way, or placement of any facility within County right-of-way. However, particular permits and permit fees may be obviated, at the discretion of the County, by enactment of a specific Right-of-Way Use Agreement between the County and the person/party to such an agreement, so long as such terms are specifically contained in the Right-of-Way Use Agreement.
- If there is a need for a person, company or Permittee, who is party to a Right-of-Way Use
Agreement of County property or its right-of-way, to perform work, upgrades, maintenance or otherwise use the County’s right-of-way, the person must first obtain written permission from appropriate County staff to ensure that such work is done in an unobtrusive manner, with proposed work schedules to ensure work is performed in a timely manner, and to generally ensure that work to be performed is consistent with County policy, ordinance, and for the protection of the health, safety and welfare of the county and its citizens.
- The company, person or Permittee shall conduct and schedule any work at all times so
that a minimum of obstructions to traffic and other inconveniences to the public occurs. The company or Permittee must take appropriate measures to maintain safe and adequate passage of vehicle and pedestrian traffic as required by the County while performing any work within the right-of-way.
- The County may make any and all inspections and random tests as it deems necessary to
enforce the terms and conditions of this, or other relevant County ordinances or policies. Acceptance or approval of ditching, excavation, backfilling, and restoration of surface by the County does not prevent the County from asserting claims against the Permittee for incomplete or defective workmanship or materials. The presence or absence of a representative of the County during the performance of the work does not relieve the Permittee of his responsibilities hereunder.
- In the event the Permittee causes damage to existing utilities or facilities located within
the right-of-way, whether it is facilities owned by the Permittee, the County or others, the Permittee must notify the appropriate County staff, or designee, and the owner of the damaged facility immediately, and take immediate steps to arrange for the repair of the damage. The Permittee is responsible for the cost of said repairs. Additionally, the Permittee is responsible for the proper installation of any diversion or ponding devices necessary for protection of property and structures, and shall be responsible for repair or payment of damages caused to property or structures by the Permittee's failure to properly provide such devices. All work associated with such occurrences shall be done in conformance with New Mexico One Call (811) system and National Pollutant Discharge Elimination System (NPDES) requirements.
- All work shall be performed in accordance with State and Federal requirements including but not limited to OSHA.
- The County may promulgate and adopt such further additional rules and regulations as may be required to fully implement this Ordinance. Copies of such rules and regulations shall be available to all interested persons at the County Clerk's office.
SECTION 7: EMERGENCY USE OF RIGHT-OF-WAY
In the event of any emergency threatening the health, safety or welfare of the public, a company or person who is party to an Right-of-Way Use Agreement may commence repairs without first obtaining written permission from appropriate County staff, provided that the company making the emergency use files such permission, as required by this Ordinance, during the first working day immediately following the date of commencement of the emergency use.
SECTION 8: RELOCATION OF FACILITIES
A. In the event that any County project, including but not limited to, installations or upgrades to its property or right-of-way, construction or reconstruction of its roadways, installation of traffic signals, etc, or any other change necessitated by the County, that necessitate relocation of the Permittee’s existing installation or facilities, the affected companies will receive written notice from the County and are required to contact appropriate County staff to coordinate relocation of their facilities. Relocation of the facilities shall be completed by the company within the time specified by appropriate County staff.
B. If the County requests the change in the right-of-way, in its inherent authority and legal right as owner of County property and right-of-way, including but not limited to; change in the design of the street or road, expansion of the right-of-way, burying of utilities, or for any other reason relating to the health, safety and welfare of the County and its citizens, the person utilizing the right-of-way shall bear the expense of relocation of their own facilities in the right-of-way.
C. If the relocation is requested by a person other than the County or the affected owner of the facilities, the expense of the relocation shall be borne by the requesting party. If the relocation is due to the fault or damage caused by a particular person utilizing the right-of-way, the person at fault shall bear the costs of relocation.
SECTION 9: VIOLATION OF ORDINANCE
Pursuant to Section 4-37-3 NMSA, a violation of this Ordinance is punishable by a fine of not more than $300 or imprisonment for not more than 90 days or both, per violation.
The County, in its sole discretion, may require an unauthorized user or occupier of county property or its right-of-way to remove any facilities unlawfully placed in the right-of-way.
Additionally, the County may pursue other legal and equitable remedies allowed by law, including, but not limited to, breach of contract, injunctive relief, and ejectment, monetary damages, particularly in cases of unauthorized use of County right-of-way by any utility or person.
SECTION 10: CONFLICT PROVISION
In the event the terms and/or the conditions of this Ordinance conflict with those found in any other County or local ordinance, or State or Federal Statute or regulation, the more stringent terms and/or conditions shall apply.
SECTION 11: EFFECTIVE DATE OF ORDINANCE AND GEOGRAPHICAL SCOPE
This Ordinance shall be effective thirty (30) days after its adoption and enactment by the Board of County Commissioners and the filing of the signed original Ordinance with the County Clerk. It shall be effective within the geographical limits of Bernalillo County outside the boundaries of all incorporated municipalities.
SECTION 12: SEVERAB1LITY
If any provision of this Ordinance or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Ordinance that can be given effect without the invalid provision or application, and to this end the provisions of the Ordinance are severable. In the event the right-of-way use fee, , or any similar instrument establishing a fee is declared illegal, unconstitutional or void for any reason by any court or proper authority, the company shall be contractually bound to pay the County, at the same rate, and in the same manner as provided herein, an aggregate amount equal to the amount that would have been paid as a use or occupancy fee for utilization of the County property and right-of-way.
SECTION 13: NOTICES
All notices required to be delivered to the County pursuant to this Ordinance shall be sent, certified mail, to the following:
One Civic Plaza NW
Albuquerque, NM 87102
SECTION 14: AMENDMENT CLAUSE
This Ordinance may be amended, as needed.
Please type the Verification Code exactly as you see it below: