[Adopted 7-14-1998 by Ord. No. 861]
The purpose of this article is to provide a
framework within which the City may regulate and manage the public
rights-of-way and to allow the City to recover the costs it incurs
in regulating and managing access and use of the rights-of-way and
in repairing and maintaining roadways impacted by such access and
use. This article is intended to provide for the health, safety and
welfare of the residents of the City as they use the rights-of-way
of the City, as well as to ensure the structural integrity of the
public rights-of-way.
This article is enacted pursuant to the following authority: W.S.A. ss. 62.11(5), 66.048, 86.16, 182.017 and 196.58(1) and the City's home rule authority under Article XI, § 3 of the Wisconsin Constitution.
The following definitions apply in this article.
References hereafter to "sections" are, unless otherwise specified,
references to sections in this article. Defined terms remain defined
terms whether or not capitalized.
Any person requesting permission to excavate in a right-of-way.
The City of Rice Lake, Wisconsin, a Wisconsin municipal corporation,
its officers and employees or any duly appointed designee thereof,
including but not limited to the City Council, and the area within
the territorial limits of the City and any area subsequently added
thereto by annexation or otherwise.
The Street Department of the City.
Any person authorized by the Department to carry out inspections
related to the provisions of this article.
A condition that poses a clear and immediate danger to life
or health or of a significant loss of property or requires immediate
repair or replacement of facilities in order to restore or to continue
service to a customer.
To dig into or in any way remove or physically disturb or
penetrate any part of a right-of-way.
The permit which, pursuant to § 218-24, must be obtained before a person may excavate in a right-of-way and which authorizes the holder to excavate that part of the right-of-way described in such permit pursuant to the terms of this article and all other applicable local, state and federal laws.
All equipment owned, operated, used, leased or subleased
in connection with a utility service. "Facilities" shall include but
not be limited to poles, wires, pipes, cables, underground conduits,
ducts, manholes, vaults, fiber optic cables, lines and other structures
and appurtenances.
When used in conjunction with "right-of-way," means over,
above, in, within, on or under a right-of-way.
A disturbance, excavation and/or obstruction of the public
right-of-way.
A local person authorized by an occupant to accept service
and to make decisions for that occupant regarding all matters within
the scope of this article.
To place any object in a right-of-way so as to hinder free
and open passage over that or any part of the right-of-way.
Any person whose facilities occupy or use more than 100 contiguous
feet of right-of-way.
Any person to whom a permit to excavate a right-of-way has
been granted by the City under this article.
A municipality, corporation, company, cooperative association organized under W.S.A. ch. 185, association, firm, partnership, limited liability company, limited liability partnership and individuals and their lessors, transferees and receivers.
The Public Service Commission of Wisconsin.
To restore facilities to a safe and operable condition or
to perform construction work necessary to make a right-of-way usable
for travel.
The process by which an excavated right-of-way and surrounding
area, including pavement and foundation, are returned to the same
condition that existed before the permittee's commencement of work
according to Department specifications and standards.
The surface and space above and below a public roadway, alley,
highway, street, bicycle lane and public sidewalk in which the City
has an interest, including other dedicated rights-of-way for travel
purposes.
An application seeking authority to extend an existing excavation
permit or to expand the work to be carried out pursuant to an existing
excavation permit.
Facilities in a right-of-way that have remained unused for
one year and for which the occupant is unable to provide proof that
it has either a plan to begin using such facilities within the next
12 months or a potential purchaser or user of the facilities.
Includes, but is not limited to, the following:
Municipal sewer and water services.
Those services provided by a public utility
as defined in W.S.A. s. 196.01(5).
Telecommunications, pipeline, fire and alarm
communications, water, electricity, light, heat, cooling energy or
power services.
The services provided by a district heating
or cooling system.
Cable television service as defined and regulated
under 47 U.S.C. §§ 521 through 573.
Wireless telecommunications services and cellular
mobile radio telecommunications services as defined in 47 U.S.C. § 332(d)(1).
The Department is responsible for the administration
of the rights-of-way and the permits and ordinances related thereto.
A.
Excavation permit required. Except as otherwise provided in this article, no person shall excavate any right-of-way without first having obtained an excavation permit from the Department. In addition, no person shall excavate any right-of-way or maintain an excavation in a right-of-way beyond the date or area specified in the permit unless such person makes a supplementary application for another excavation permit before the expiration of the initial permit, pursuant to § 218-28, and a new permit or permit extension is granted.
B.
Permit display. A copy of any excavation permit issued
under this article shall be made available at all times by the permittee
at the indicated work site and shall be available for inspection by
the Department upon request.
A.
Complete application required. Application for an
excavation permit shall be made to the Department and shall be considered
complete only upon compliance with the following requirements:
(1)
Submission of a completed permit application form,
including all required attachments, and scaled drawings showing the
location and area of the proposed project and the location of all
existing and proposed facilities.
A.
Fee calculation. The excavation permit fee shall be
established by the City by resolution and shall be in an amount sufficient
to recover the costs incurred by the City for each of the following
categories:
(1)
Administrative costs. The general formula for computing
administrative costs shall be the average per-permit costs the City
incurs in processing excavation permit applications.
A.
Repair and restoration. In addition to repairing and
restoring the specific area which the permittee excavated, the permittee
must repair and restore the general area surrounding the excavation
work, including the paving and its foundations, to the same condition
that existed before commencement of the excavation work. The City
shall inspect the area of the work and accept the work when it determines
that proper restoration has been made according to the Department's
specifications and standards. A permittee may request to have the
City repair and restore a right-of-way. On receiving such a request,
the City may accept or reject the request at its sole option. If the
City accepts, the permittee shall be billed for the City's costs and
shall pay the amount thereof within 30 days of billing.
B.
Standards. The permittee shall perform repairs and
restorations according to the specifications and standards of the
Department and any conditions specified in the permit. The Department
shall have the authority to prescribe the manner and extent of the
repairs and restorations and may do so in written procedures of general
application or on a case-by-case basis.
C.
Guaranties. A permittee shall guarantee its repair and restoration work and shall maintain such work for 12 months following its completion. During this twelve-month period, the permittee shall, upon notification from the Department, correct all repair and restoration work using the method required by the Department. Such work shall be completed within 10 calendar days of the receipt of the notice from the Department, not including days during which work cannot be done due to circumstances beyond the permittee's control or days when work is prohibited as unseasonable or is suspended under § 218-30A(1).
D.
Failure to restore. If the permittee fails to repair
and restore a right-of-way in the manner and to the condition required
by the Department or fails to satisfactorily and timely complete all
repair and restoration required by the Department, the Department,
at its option, may do such work. In that event, the permittee shall
pay to the City, within 30 days of billing, the cost of repairing
and restoring the right-of-way.
A.
Notice of completion. When the work under any permit
hereunder is completed, the permittee shall notify the Department.
B.
Site inspection. The permittee shall make the work
site available to the Department and to all others as authorized by
law for inspection at all reasonable times during the execution of
and upon completion of the permittee's work.
C.
Authority of Department. At the time of inspection, the Department may order the immediate cessation of any work which poses a threat to life or to the health, safety or well-being of the public or of a significant loss of property. The Department may issue an order to the permittee for any work which does not conform to the applicable standards, conditions or codes. The order shall state that failure to correct the violation will be cause for revocation of the permit. Within 10 days after issuance of the order, the permittee shall present proof to the Department that the violation has been corrected. If such proof has not been presented within the required time, the Department may revoke the permit pursuant to § 218-30.
A.
Limitations on area. An excavation permit is valid
only for the area of the right-of-way specified in the permit. No
permittee may perform any work or excavate outside the area specified
in the permit. Any permittee which determines that an area greater
than that specified in the permit must be excavated must, before working
in that greater area, make application for a permit extension and
pay any additional fees required thereby and be granted a new permit
or permit extension.
B.
Limitation on dates. An excavation permit is valid
only for the dates specified in the permit. No permittee may begin
its work before the permit start date or, except as provided herein,
continue working after the end date. If a permittee does not finish
the work by the permit end date, it must apply for a new permit for
the additional time it needs and shall not continue working after
the end date of the previous permit unless and until it is granted
a new permit or an extension of the previous permit.
C.
Fees for supplementary applications. A permittee shall
pay administrative fees and repair and restoration fees for any new
permits or extended permits received under this section.
D.
Minor changes. Changes which are deemed to be minor by the City may be granted via telephonic application. The fees detailed in § 218-25A(1) shall be waived for telephonic application.
A.
Compliance with other laws. Obtaining a permit to
excavate does not relieve the permittee of its duty to obtain all
other necessary permits, licenses and authority and to pay all fees
required by any other City, county, state or federal rules, laws or
regulations. A permittee shall comply with all requirements of local,
state and federal laws. A permittee shall perform all work in conformance
with all applicable codes and established rules and regulations and
is responsible for all work done in the right-of-way pursuant to its
permit, regardless of who does the work.
B.
Prohibited work. Except in an emergency, or with the
approval of the Department, no right-of-way excavation may be done
when seasonally prohibited or when conditions are unreasonable for
such work.
A.
Grounds. After consultation with the applicant/permittee and in accordance with § 218-32C, the Department may refuse to issue a permit or may amend, revoke, suspend or refuse to extend an existing permit based on any of the following grounds:
(1)
The proposed work would interfere with an exhibition,
celebration, festival or other event.
(2)
Misrepresentation of any fact by the applicant or
permittee.
(3)
Failure of the applicant or permittee to maintain
required insurance.
(4)
Failure of the applicant or permittee to complete
work in a timely manner.
(5)
The proposed work is contrary to the public health,
safety or welfare.
(6)
The extent to which right-of-way space where the work
is to be performed is not available.
(7)
The competing demands for the particular space in
the right-of-way.
(8)
The availability of other locations in the right-of-way
or in other rights-of-way for the applicant's facilities.
(9)
The applicability of ordinances or other regulations
pertaining to the right-of-way that affect location of facilities
in the right-of-way.
(10)
The condition and age of the right-of-way and
whether and when it is scheduled for total or partial reconstruction.
(11)
The applicant or permittee is otherwise not
in full compliance with the requirements of this article or state
or federal law.
(12)
The application is for the installation of facilities
to be used to provide cable television service and the applicant has
not obtained a franchise to provide such service from the City.
B.
Discretionary issuance. Notwithstanding Subsection A, the Department may issue a permit where issuance is necessary:
(1)
To prevent substantial economic hardship to a customer
of the permittee or applicant;
(2)
To allow such customer to materially improve its utility
service; or
(3)
To allow the permittee or applicant to comply with
state or federal law or City ordinance or an order of a court or administrative
agency.
C.
Appeals. Any person aggrieved by a decision of the
Department amending, revoking, suspending, refusing to issue or refusing
to extend a permit may file a request for review with the Common Council.
A request for review shall be filed within 10 days of the decision
being appealed. Following a hearing, the Common Council may affirm,
reverse or modify the decision of the Department.
A.
Emergency situations.
(1)
Each person shall immediately notify the City by verbal
notice on an emergency phone number provided by the City of any event
regarding its facilities which it considers to be an emergency. The
person may proceed to take whatever actions are necessary to respond
to the emergency. Within two business days after the occurrence of
the emergency, the person shall apply for the necessary permits, pay
the fees associated therewith and otherwise fully comply with the
requirements of this article.
(2)
If the City becomes aware of an emergency affecting
or potentially affecting any person's facilities in the right-of-way,
the Department shall attempt to contact that person or its local representative.
The City may take whatever action it deems necessary within the requirements
of the law to protect the public safety as a result of the emergency,
the cost of which shall be borne by the occupant whose facilities
occasioned the emergency.
B.
Nonemergency situations. Except in an emergency, any
person who, without first having obtained the necessary permit, excavates
a right-of-way must subsequently obtain a permit and shall, in addition
to any penalties prescribed by ordinance, pay double the normal fee
for the permit, pay double all the other fees which would otherwise
be required, deposit with the Department the fees necessary to correct
any damage to the right-of-way and comply with all requirements made
by City ordinance.
B.
Corridors. The Department shall have the authority
to assign specific corridors within the right-of-way. Such assignments
shall be consistent with applicable state, federal and local laws,
regulations and codes. All excavation or other permits issued by the
Department involving the installation or replacement of facilities
shall designate the proper corridor for the facilities at issue.
C.
Limitation of space. The Department may prohibit or
limit the placement of new or additional facilities within the right-of-way
if there is insufficient space to accommodate a request to occupy
and use the right-of-way. In making such decisions, the Department
shall strive to the extent possible to accommodate all existing and
potential users of the right-of-way but may prohibit or limit the
placement of new or additional facilities when required to protect
the health, safety or welfare of the public.
A.
Any person owning facilities in the right-of-way must
promptly and at its own expense, with due regard for seasonal working
conditions, permanently remove and relocate its facilities in the
right-of-way whenever the Department requests such removal and relocation
and shall restore the right-of-way to the same condition it was in
prior to said removal or relocation.
B.
The Department may make such request:
C.
Notwithstanding the foregoing, a person shall not
be required to remove or relocate its facilities from any right-of-way
which has been vacated in favor of a nongovernmental entity unless
and until the reasonable costs thereof are first paid to the person
therefor by the nongovernmental entity. The City shall only abandon
or vacate a right-of-way subject to reservations for utility usages
existent at the time of such abandonment or vacation.
When the City performs work in the right-of-way
and finds it necessary to maintain, support, shore or move facilities
located in the right-of-way, the City shall notify the owner of such
facilities (owner) or its local representative. The owner or its local
representative shall meet with the City's representative within 24
hours and coordinate the protection, maintenance, supporting and/or
shoring of the person's facilities. The owner shall accomplish the
needed work within 72 hours unless the City agrees, in writing, to
a longer period. In the event that the owner does not proceed to maintain,
support, shore or move its facilities, the City may arrange to do
the work and bill the owner, said bill to be paid within 30 days.
Each occupant and each permittee shall indemnify,
defend and hold harmless the City, its officers, boards, committees,
commissions, elected officials, employees and agents from and against
all loss or expense (including liability costs and attorney's fees)
by reason of any claim or suit or of liability imposed by law upon
the City or its agents or employees for damages because of bodily
injury, including death at any time resulting therefrom, sustained
by any person or persons or on account of damages to property, including
loss of use thereof, arising from, in connection with, caused by or
resulting from the occupant's or permittee's acts or omissions in
the exercise of its rights under this article or pursuant to an excavation
permit issued by the Department.
A.
Self-insurance. Each self-insured occupant and each
self-insured permittee shall indicate its self-insured retention in
an amount deemed acceptable to the City. Further, each such occupant
and permittee shall name the excess insurance carrier which shall
be licensed to do business in the State of Wisconsin and satisfactory
to the City.
B.
Limits for the non-self-insured. Each occupant and
each permittee shall keep in force and effect all insurance policies
as set forth below, issued by a company or companies licensed to do
business in the State of Wisconsin and satisfactory to the City. Such
insurance will be primary. All contractors and all of their subcontractors
who perform work for the occupant within the right-of-way shall carry,
in full force and effect, workers' compensation, comprehensive general
liability coverage and automobile liability coverage of the type that
the occupant is required to obtain under this section with the same
limits. The occupant or permittee shall furnish the City with a certificate
of insurance and, upon request, certified copies of the required insurance
policies. The occupant or permittee shall give the City 30 days' advance
notice of cancellation or nonrenewal of insurance required under this
article. All policies, other than workers' compensation, shall be
written on an occurrence and not on a claims made basis. The occupant
shall defend, indemnify and hold harmless the City and from and against
payment of any deductible and payment of any premium on any policy
required under this section.
(1)
Commercial general liability insurance. The policy
will be written to provide coverage for, but not limited to, the following:
premises and operations, products and completed operations, personal
injury, blanket contractual coverage, broad form property damage,
independent contractor's coverage and coverage for property damage
from perils of explosion, collapse or damage to underground utilities
(commonly known as "XCU coverage"). Limits of liability shall be not
less than $1,000,000 general aggregate, $1,000,000 products/completed
operations aggregate, $1,000,000 personal injury and $1,000,000 each
occurrence.
(2)
Workers' compensation and employers' liability insurance.
Statutory workers' compensation benefits and employers' liability
insurance with a limit of liability no less than $100,000 each accident
shall be provided.
(3)
Automobile liability insurance. A business automobile
policy covering all owned, hired and nonowned private passenger autos
and commercial vehicles shall be provided. Limits of liability shall
be not less than $1,000,000 each occurrence and $1,000,000 aggregate.
(4)
Umbrella liability insurance. This coverage shall
be in excess of the employers' liability, commercial general liability
and automobile liability insurance required above. Limits of liability
shall be not less than $1,000,000 each occurrence and $1,000,000 aggregate.
A.
Discontinued operations. An occupant who has determined
to discontinue its operations in the City must either:
(1)
Provide information satisfactory to the Department
that the occupant's obligations for its facilities in the right-of-way
under this article have been lawfully assumed by another occupant;
or
B.
Abandoned facilities. Except as otherwise provided in Subsection A, facilities that remain unused for two years shall be deemed to be abandoned. Abandoned facilities are deemed to be a nuisance. In addition to any remedies or rights it has at law or in equity, the City may, at its option, abate the nuisance, take possession of the facilities or require removal of the facilities by the owner of the facilities or the owner's successor in interest.
C.
Public utilities. This section shall not apply where
the PSC has jurisdiction over the abandoned facilities pursuant to
W.S.A. s. 196.81.
The City, by the granting of a permit to excavate
the right-of-way or by registering a person under this article, does
not surrender or to any extent lose, waive, impair or lessen the lawful
powers and rights which it has now or which may be hereafter granted
to the City under the constitution and statutes of the State of Wisconsin
to regulate the use of the right-of-way by the permittee or occupant,
and the permittee or occupant by its acceptance of a permit to excavate
the right-of-way or by its registration under this article is deemed
to acknowledge that all lawful powers and rights, regulatory power
or police power or otherwise as is or as the same may be from time
to time vested in or reserved to the City shall be in full force and
effect and subject to the exercise thereof by the City at any time.
A permittee or occupant is deemed to acknowledge that its rights are
subject to the regulatory and police powers of the City to adopt and
enforce general ordinances necessary to the health, safety and welfare
of the public and is deemed to agree to comply with all applicable
general laws and ordinances enacted by the City pursuant to such powers.
