2 Del. Admin. Code § 2401-5.0

Current through Register Vol. 28, No. 5, November 1, 2024

Section 2401-5.0 - Master Franchise, Permits, and Agreements

5.1 General Requirements. DelDOT uses different types of documents to manage the installation and occupancy of utility facilities on, under, or across State right-of-way. These documents include franchises, permits, and agreements.

5.1.1 A Public Utility Master Franchise is required if a public utility wishes to locate facilities on the right-of-way of a DelDOT-maintained highway. A public utility shall submit a franchise application for each county where its facilities are to be located within the rights-of-way of a DelDOT-maintained road.

5.1.2 Public companies that do not qualify as public utilities in the Delaware Code will not be permitted to place facilities within DelDOT right-of-way absent legislative authority and an executed Use and Occupancy Agreement or Master Agreement. Use and Occupancy Agreements and Master Agreements will be developed for each individual situation in which a public company or private entity is permitted to place facilities in the right-of-way.

5.1.3 An executed Master Franchise or Use and Occupancy Agreement shall be on file prior to submission of a Utility Construction Permit application and before any type of installation, repair, or relocation occurs.

5.1.4 A Utility Construction Permit is required in all cases of utility facility maintenance or installation in the right-of-way of a DelDOT-maintained highway or street, including within a municipality unless otherwise specified for a state highway construction project. The application for a Utility Construction Permit shall be submitted to the applicable District Office of Public Works.

5.1.5 If the utility crosses over or under a railroad, the district shall contact the DelDOT Railroad Section to coordinate. The district will make a notation on the permit that the work is subject to approval by the railroad company.

5.1.6 Letter Agreement. A letter agreement is a legal instrument between a utility and the DelDOT to establish the utility work in conjunction with a DelDOT highway construction project. It describes the terms and conditions, in accordance with the State code, by which the work and subsequent payment will be handled. An executed letter agreement is required prior to the performance of any work that is to be reimbursed.

5.1.7 A Utility Attachment Agreement shall be on file for a utility requesting the attachment of a facility to highway or ancillary structure.

5.2 Master Franchise

5.2.1 Purpose. The master franchise is a legal instrument by which the use of highway right-of-way is granted. It is not a control instrument over construction methods, traffic control features, or timing as opposed to a permit. DelDOT may grant a master franchise to the following:

5.2.1.1 An entity meeting the definition of a public utility that is subject to the regulatory jurisdiction of the public service commission;

5.2.1.2 A cable system operator or video services provider franchised by the public service commission or a municipality; or

5.2.1.3 A utility owned, operated, controlled, or created by the state, a municipality, county, or other political subdivision.

5.2.2 Conditions

5.2.2.1 The master franchise requires that all facilities to be constructed shall meet the requirements set forth in this regulation.

5.2.2.2 All utility companies making underground installations shall be members of "Miss Utility of Delmarva" and, documentation verifying membership shall be provided prior to approval of Master Franchise.

5.2.3 Preparation. A Master Franchise must be in force for any Utility to place facilities in the highway right-of-way for which DelDOT has maintenance responsibility.

5.2.4 Coordination between Utility and State Projects. Both DelDOT and the utility company representatives need to exchange information regularly to help avoid conflicts between utility company projects and DelDOT projects in terms of location, construction timing and method of installation. See Section 6.0 for more details on DelDOT highway project coordination.

5.3 Use and Occupancy Agreements

5.3.1 Purpose. A Use and Occupancy Agreement (shown in Appendix A, located at https://deldot.gov/Business/drc/manuals/utilities-manual-2022/appendix-d.pdf) is used for privately or individually owned facilities that are located on or across state-maintained rights-of-way. For example, if a landowner owns property on both sides of a state roadway and needs to convey irrigation lines, water lines, natural gas lines, propane lines etc., between properties, the landowner and DelDOT must execute a Use and Occupancy Agreement. The Use and Occupancy Agreement provides DelDOT with information about the facilities and sets forth their conditions. The owner shall obtain a Utility Construction Permit for any facility construction, maintenance, or repair.

5.3.2 Conditions. Only crossings are allowed. Longitudinal lines are not permitted.

5.3.3 Preparation. A Use and Occupancy Agreement shall be prepared by the owner for each installation where a facility is placed on a state-maintained right-of-way.

5.4 Letter Agreements. A Letter Agreement shall be required for all work not covered under a Master Franchise, a Use and Occupancy Agreement, or a Construction Permit. The agreement describes the terms and conditions, in accordance with the State code, by which work and subsequent payment will be handled for utility work.

5.5 Utility Attachment Agreement. A Utility Attachment Agreement is a subset of Letter Agreements and shall be required for all work where a utility facility will be attached to a DelDOT structure.

5.6 Utility Construction Permits

5.6.1 Purpose

5.6.1.1 A utility construction permit (see sample in Appendix A, located at https://deldot.gov/Business/drc/manuals/utilities-manual-2022/appendix-a.pdf) shall be obtained for all utility construction not performed in conjunction with a DelDOT highway project. A utility construction permit is required if utility work is done in advance of notice to proceed being issued to the DelDOT contractor for the highway project which DelDOT construction personnel has yet to be assigned as determined by the Utilities Engineer. Permit submissions shall be coordinated with the DelDOT Utility Section when there are proposed or active highway projects in the vicinity of the permit scope of work.

5.6.1.2 Plans shall be submitted with the utility construction permit application via the UPA for the District Public Works Section to review. Plans will not be required if the district determines that a written description of the work and location is adequate to outline the construction.

5.6.2 Requirements

5.6.2.1 A utility construction permit is required any time utility construction work, including excavations or openings, will disturb anything on the roadway or within state right-of-way. A permit is necessary each time a facility is upgraded, maintained, or rebuilt or an installation is added, including services. Project design work as described in subsection 4.1 is excluded from this requirement unless the utility is notified otherwise by the utilities engineer. The district may waive the permit requirement for test holes.

5.6.2.2 The new permit request shall show the existing and proposed installation. Permit submissions shall clearly identify existing pedestrian facilities such as pedestrian connections, sidewalks, crosswalks, etc. along with any proposed work that will alter them. All proposed work shall comply with the ADA and DelDOT's PAS. Permits shall not be approved if the ADA and PAS requirements are not properly identified and addressed. See subsection 4.3.2.2 for ADA requirements.

5.6.2.3 A utility that performs work on DelDOT right-of-way longer than one working day to repair or adjust an existing facility or that disturbs the roadway will require a utility construction permit. If the work takes less than one day and does not disturb the roadway, a permit is not required. However, the utility shall notify the District Public Works Office of any lane or shoulder closure on any roadway. The notification shall include the location and type of work to be performed.

5.6.3 Emergency Situation

5.6.3.1 When a utility initiates an emergency, the utility shall promptly notify the District Public Works Office and the Traffic Management Center (TMC) at 302-659-4600 prior to performing work. The utility is responsible for communicating the type of emergency and location of the work to be performed and other pertinent information. Work may commence following verbal notification to public works and concurrence from Public Works that the situation is an emergency. The utility shall submit a utility construction permit to the District Public Works Office via the UPA within 24 hours of the commencement of work. The utility company shall install the required temporary traffic control devices and personnel in accordance with the DE MUTCD to protect the public and the workers performing emergency work and restoring the site.

5.6.3.2 When notified of a situation that is deemed an emergency by DelDOT, the utility shall verbally respond to DelDOT personnel within 30 minutes of being notified. The utility shall have someone on-site within the first hour of notification to determine needs and mobilize all personnel, equipment, and resources required to perform work, including MOT. The utility shall have MOT in place and commence remediation work to address the situation within 4 hours of being notified. At that point, the utility is responsible to take ownership of the site and relieve DelDOT crews. The TMC shall be notified by each utility once MOT is set and once work is complete. Noncompliance actions as outlined in subsection 5.9 may be taken should a utility not respond following notification.

5.6.3.3 For situations involving utility poles, responsibility falls to the pole owner to ensure all work is occurring in accordance with this policy, including maintenance of traffic. The pole owner shall identify all utilities that are attached to their pole. They shall update TMC with the utility attacher information along with notifying and coordinating with utility attachers. The pole owner shall maintain the site and oversee work associated with all parties on their pole.

5.6.3.4 DelDOT's TMC will track responses and associated timeframes. In the event the required timeframes are not adhered to by utilities, DelDOT may initiate non-compliance actions as outlined in subsection 5.9.

5.6.3.5 If a utility intends to utilize temporary measures to safely resolve the immediate emergency, they shall coordinate such measures with DelDOT throughout the process. Any temporary measures shall be permanently resolved under the standard utility permit process within 2 weeks of the emergency.

5.6.3.6 In all emergency situations, the utility shall coordinate work with any other utility companies that are impacted by the work and that may have facilities in the area.

5.6.4 Fees. No fees are authorized at this time.

5.6.5 Preparation

5.6.5.1 Applications for utility construction permits and plans and documents shall be submitted to the appropriate District Public Works Section through the UPA.

5.6.5.2 The plans shall show the following:

5.6.5.2.1 Roadway name;

5.6.5.2.2 Width of the right-of-way and method of right-of-way determination;

5.6.5.2.3 Type of roadway material;

5.6.5.2.4 Width of traveled way;

5.6.5.2.5 Speed Limit of the affected road;

5.6.5.2.6 Proposed work;

5.6.5.2.7 Areas of pavement disturbance including sidewalks and shared use paths;

5.6.5.2.8 Distance from the crossroad or side road to the installation;

5.6.5.2.9 Distance from cross arm to existing right-of-way;

5.6.5.2.10 Distance from the centerline of the roadway to the installation;

5.6.5.2.11 Type of shoulder;

5.6.5.2.12 Width of shoulder;

5.6.5.2.13 Bore pits;

5.6.5.2.14 Test pit locations;

5.6.5.2.15 Drainage system or systems in the utility area;

5.6.5.2.16 Location of existing utilities (aerial and underground);

5.6.5.2.17 Trench and restoration details;

5.6.5.2.18 North arrow, scale, and legend;

5.6.5.2.19 Railroad crossing roadways;

5.6.5.2.20 Location and width of sidewalk;

5.6.5.2.21 Location and width of pedestrian connections; and

5.6.5.2.22 Sidewalk and pedestrian restoration details.

5.6.5.3 All plans for pressure pipeline installations shall specify the type of transmittant, the maximum working pressure, the maximum design pressures, and the design standards for the carrier.

5.6.5.4 Plans for casing shall specify the location, method of installation, and type of casing, size, and wall thickness proposed.

5.6.5.5 Traffic Control Plan or proposed Typical Application shall be submitted in accordance with subsection 4.2.

5.6.5.6 When a utility construction permit is needed after a DelDOT highway contract has been awarded, the utility shall obtain written permission from the DelDOT contractor to work in the project area. This policy includes any utility work not caused by the highway construction or improvement of a highway. See Appendix D, located at https://deldot.gov/Business/drc/manuals/utilities-manual-2022/appendix-d.pdf, for Contractor Approval form.

5.6.5.7 Utility construction permits are required for work to be performed on state right-of-way or state-maintained roads within the incorporated limits of a municipality. The utility shall also have approval of the municipality prior to performing work.

5.7 Utility Construction, Relocation, or Repair Not Due to Highway Construction

5.7.1 A public utility shall not start construction of a new installation, repairs, or relocation until a utility construction permit has been issued, and a master franchise is in place. Refer to subsection 5.6.3 for further details including emergency situations. A privately owned facility shall have a utility construction permit and a use and occupancy agreement before any type of installation, repairs, or relocation.

5.7.2 The District Public Works office (for permit work) or the DelDOT Construction Section (for DelDOT highway project work) shall be notified at least one working day before the start of construction unless otherwise directed in writing. Notification may be given in writing, orally, by email, or by fax. The information transmitted shall include the starting date, road number, and project or permit number. Refer to subsection 5.6.3 for further details including emergency situations. The utility shall be responsible for notifications to the public and ensuring they are provided at the proper time.

5.7.3 Permits issued by DelDOT may be suspended or revoked whenever state authorities ascertain a threat to the traveling public. Other causes for revocation may include, but may not be limited to misuse, lack of response to DelDOT inquiries, noncompliance with state requirements, or improper temporary traffic control. Any permit application may be denied if it does not meet the requirements of this regulation.

5.7.4 The utility company or its contractor shall always have a responsible representative at the job site to supervise the work. A copy of the authorized permit and any supporting documentation shall be on site.

5.7.5 Utilities and their contractors shall utilize the Miss Utility system in accordance with Delaware Code Title 26 Chapter 8.

5.7.6 Utility companies shall provide as-built plans to the District for permit work and the utilities section for project work at the completion of all utility work as outlined in subsection 4.6.3.5.

5.8 Exception or Deviation

5.8.1 If the utility company feels that due to hardship or where this regulation conflicts with other regulation or code, an exception or deviation to the requirements of this regulation is necessary, the utility shall submit a request, for deviation from or exception to the standards described in this regulation to DelDOT. The request shall be in writing and must include full justification surrounding the hardship, alternatives evaluated to arrive at the proposed solution and cost associated with each alternative. It is the utility's responsibility to provide enough information to evaluate the hardship request. The request shall address the following:

5.8.1.1 Where a conflict between this regulation and other standards exists;

5.8.1.2 The extent to which the utility facility complies with the provisions of this regulation and AASHTO policies;

5.8.1.3 The direct and indirect environmental and economic effects of any loss of productive agricultural land which may result from disapproving the use of the right-of-way;

5.8.1.4 Why any other utility location would be extremely difficult and unreasonably costly for the utility consumer; and

5.8.1.5 How the utility's installation will not adversely affect the design, construction, stability, traffic safety, or operation of the right-of-way. If approved by DelDOT, DelDOT will require an agreement with the utility that all relocation costs due to a future DelDOT project are to be borne by the utility.

5.8.2 DelDOT will assess the situation and provide recommendations. The written justification and any other pertinent information shall be sent to the District Public Works Office for permit projects and the utilities engineer for highway projects. An approval for a hardship request is not a blanket approval for similar situations. The utility shall submit a request each time an exception or deviation is desired. DelDOT has the final authority in determining if an exception is approved.

5.9 Non-Compliance. If a utility fails to comply with any of the conditions, restrictions, or regulations prescribed by DelDOT and stated in this regulation without an approved exception as outlined in subsection 5.8, the following actions may be taken:

5.9.1 If the noncompliance is the result of an emergency, see subsection 5.6.3 for timeframes associated with responses.

5.9.2 If the noncompliance has a direct effect on public safety or impedes the flow of traffic, the utility shall take actions to address the noncompliance within four hours of being notified of it. If DelDOT determines immediate actions are required to protect the safety of the traveling public and the utility has not responded, then DelDOT may perform the work and take any action necessary to protect the traveling public. All costs associated with this shall be borne by the non-compliant utility.

5.9.3 If the utility does not meet a deadline, DelDOT may do the work or have the work performed by a contractor of DelDOT's choosing and charge the utility for the work.

5.9.4 In addition to the cost of the work being performed, DelDOT may charge a Utility company the road user cost for any delay associated with a utility delay or a failure to remedy non-compliance. Road user costs will be calculated in accordance with DelDOT Design Guidance Memorandum 1-24.

5.9.5 DelDOT will notify the utility, in writing, of the noncompliance. Consistent with applicable law, DelDOT may impose such reasonable sanction, as it may deem appropriate for noncompliance. For examples and not by way of limitation, DelDOT may impose lesser sanctions such as not issuing new permits to the utility; or issue an immediate stop work order on any active utility construction within DelDOT right-of-way until the utility complies.

5.9.6 The utility shall correct the noncompliance within 30 days after receiving written notice from DelDOT, unless otherwise agreed to by DelDOT. After the 30-day period, DelDOT will take any action necessary to protect the safety of the traveling public. This may include restoration of roads or taking possession of and removing poles, pole lines, wires, pipelines, conduits, fixtures, or other structures or property owned by the utility and located on state right-of-way. DelDOT will bear no cost for such work. All costs associated with this shall be borne by the non-compliant utility.

5.9.7 The utility is responsible for its contractors and will be held responsible for noncompliant actions by said contractors.

5.9.8 DelDOT may revoke the utility master franchise after 60 days' written notice to the utility of material noncompliance and opportunity to cure. Provided that in the event the cure requires more than 60 days to complete, the franchise shall remain valid so long as the utility promptly begins to effectuate such cure and diligently prosecutes it until completion. In the event of revocation of the franchise agreement, DelDOT may seek a court order to appoint a trustee to administer the utility's assets located within DelDOT's roadway rights-of-way until the noncompliance is corrected or such time as the utility's facilities, fixtures, assets, and appurtenances are removed from DelDOT's roadway rights-of-way. DelDOT will bear no cost for such removal. The utility shall bear all associated costs. This is not to be construed as placing any limitation upon either the utility or DelDOT to pursue any other legal or equitable remedy available to it for a breach of the conditions of the franchise.

2 Del. Admin. Code § 2401-5.0

26 DE Reg. 618 (1/1/2023) (Final)