[Adopted 2-13-2017 by Ord. No. 528]
The Common Council, or its designee, is responsible for the
administration of the rights-of-way, and all permits and ordinances
related thereto.
A.
Permit required. Except as otherwise provided in this article or other chapters of the City Code, no person shall excavate any right-of-way, or construct, install, place, repair, lease, remove, operate, relocate or maintain facilities or equipment in a right-of-way, or any part thereof, without first having obtained a permit to construct, operate, and maintain utilities within right-of-way ("right-of-way permit") from the City's Director of Public Works as set forth in this Article III.
B.
Applications. Application for a right-of-way permit shall be made
to the Department. Right-of-way permit applications shall contain,
and will be considered complete only upon compliance with the requirements
of the following provisions:
(1)
Submission of a completed right-of-way permit application form, including
all required attachments, and scaled drawings showing the location
of the area of the proposed project and the location of all existing
and proposed facilities; and
(2)
Payment to the City of all required right-of-way permit fees and
other costs as specified herein.
C.
Restrictions; supplementary applications. No Person shall: (1) excavate
the right-of-way beyond the date or area specified in the right-of-way
permit; or (2) place, operate or maintain facilities or equipment
in the right-of-way beyond the area specified in the right-of-way
permit, unless such person makes a supplementary application for a
renewal of the right-of-way before the expiration of the initial right-of-way
permit. A supplementary application may also be required for the addition
of any type of equipment, materials or other item(s) to any existing
pole or structure located in or under a right-of-way or on City-owned
real estate, after the issuance of an initial right-of-way permit.
D.
Timing. No right-of-way permit shall be issued that requires excavation
or installation of a facility between the traditionally unseasonable
period of November 15 and May 1, except where it is determined by
the Director of Public Works to be appropriate.
E.
Display of right-of-way permit. A copy of any right-of-way 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.
F.
Contact person. Each person who occupies, uses, or seeks to occupy
or use, the right-of-way or any facility, equipment, or structure
in the right-of-way, including by lease, sublease, or assignment,
or who has, or seeks to have, facilities or equipment located in any
right-of-way shall provide the name and contact information of a designated
point of contact with the Department and keep and maintain the accuracy
of such registration until the use of the right-of-way ceases.
A.
Fee. The fee for each right-of-way permit shall be established from
time to time by the City's Common Council in an amount sufficient
to recover the costs incurred by the City. This fee shall recover
costs incurred by the City for each of the following categories as
provided herein:
B.
Applicability to City. Notwithstanding Subsection A of this section, the City and its contractors shall not pay degradation fees.
C.
Payment as condition. No right-of-way permit shall be issued without payment of the applicable fee, as calculated and set forth in Subsection A of this section.
D.
Fees nonrefundable. All right-of-way permit fees paid under this
article are nonrefundable.
A.
Timing of repairs. All work to be done under the right-of-way permit, and the repair of the right-of-way as required herein, must be completed within the dates specified in the right-of-way permit, increased by as many days as work could not be done because of circumstances beyond the control of the permittee or when work was prohibited as unseasonable or unreasonable as set forth in § 393-10.
B.
Requirements; inspections. The permittee, as a condition to receiving
the right-of-way permit, must: (1) timely repair its own work; and
(2) repair the general area of the work and the surrounding areas,
including the paving and its foundations, all to the specifications
and standards set forth by the Department and/or in the conditions
specified in the right-of-way permit. The Department shall inspect
the area of the work and accept the work when it determines that proper
repair has been made, per the specifications of the Department. The
Department shall have the authority to prescribe the manner and extent
of the repair, and may do so in written procedures of general application
or on a case-by-case basis. All repairs shall be coordinated with
the Department so as to not unreasonably close or impede the public's
use of any street or right-of-way.
C.
Failure to repair. If the permittee fails to repair the right-of-way in the manner and to the condition required by the Department, or fails to satisfactorily and timely complete all repair required by the Department, the Department may, at its option, complete such work. In that event the permittee shall pay to the City, within 30 days of billing, the cost of repairing the right-of-way. If the permittee fails to pay as required, the City may exercise its rights under the bond pursuant to § 393-23.
The permittee may elect to restore the excavation and surrounding
pavement in lieu of the repair and degradation fee normally included
in the fee for the right-of-way permit. If restoration is elected,
the Department shall specify the area to be restored and the methods
and materials to be used for the restoration.
A.
Notification. The permittee shall notify the Department upon commencement
and completion of all work under any right-of-way permit.
B.
Inspection. 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, and upon completion, of the work.
C.
Authority of Department. At the time of inspection(s), the City may order the immediate cessation or correction of any work which poses a threat to the life, health, safety or well-being of the public. The City may issue an order to the permittee for any work that does not conform to the applicable standards, conditions or codes. The order shall state that failure to correct violation(s) will be cause for revocation of the right-of-way 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 § 393-18.
D.
Time period. All work and/or restoration required shall be completed
within 30 days of the commencement of the work at the site.
A.
Fee basis.
(1)
Fees shall reflect the ongoing or long-term costs to the City of
managing the access to the right-of-way. These costs are exclusive
of administrative costs collected under the fee for the right-of-way
permit. Fees shall be initially set, and may be annually recomputed,
to recover the costs incurred by the City in ongoing management of
the right-of-way. Ongoing management costs include, but are not limited
to, inventory maintenance, facility tracking, GIS, tree trimming,
grass mowing, right-of-way maintenance, location marking, and general
inquiries related to public right-of-way users. The fee shall be based
on the number of feet of right-of-way occupancy by a permittee.
(2)
The per-foot management fee shall be calculated as follows: annual
management fee per foot = total annual management cost/total ROW occupancy
feet.
B.
Payment. Ongoing management fees shall be subject to adjustment and
correction at the conclusion of each calendar year. Such fees shall
be paid for all and any part of a calendar year, prorated on a daily
basis, during any time period in which the said person uses or occupies
the right-of-way to furnish any utility or telecommunication services,
or places, maintains or uses the person's wires, mains, pipes,
or any other facilities or equipment in the right-of-way.
A.
Limitations on area. A right-of-way permit is valid only for the
use of the area of the right-of-way specified in the right-of-way
permit. No permittee may perform any work or excavate outside the
area specified in the right-of-way permit, except as provided herein.
Any permittee which determines that an area greater than that specified
in the right-of-way permit must be excavated must, before working
in the greater area: (1) make application for a right-of-way permit
extension and pay any additional fees required thereby; and (2) be
granted a new right-of-way permit or extension thereof.
B.
Limitations on dates. Excavation or other work under a right-of-way
permit may only be performed within the dates specified in the right-of-way
permit. No permittee may begin its work before the right-of-way permit
start date or, except as provided herein, continue working after the
end date. If a permittee does not finish the work by the right-of-way
permit end date, it must apply for a new right-of-way permit for the
additional time it needs, and receive the new right-of-way permit
or an extension of the prior right-of-way permit before working after
the end date of the previous right-of-way.
C.
Fees for supplementary applications. A permittee shall pay administration
costs for any additional right-of-way permit(s), but shall not be
required to pay an additional degradation fee for the same excavation,
if one has already been paid on the original right-of-way permit.
A.
Compliance with other laws. Obtaining a right-of-way permit to excavate
and/or occupy the right-of-way 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. Each permittee, and its sublessors,
assigns, and third-party contractors, shall comply with all requirements
of local, state and federal laws. A permittee shall perform all work,
and operate (or cause its sublessees, third-party contractors or assigns
to operate) all utilities in the right-of-way, 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 performs the work.
B.
Emergencies. 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. The Department may refuse to issue a permit or may revoke, suspend or refuse to extend an existing permit if it determines that the application submitted is insufficient or the issuance, reissuance, or extension would be contrary to the purpose of this Article III, which reasons shall include, but not be limited to, the following:
(2)
Issuance of a right-of-way permit for the requested date would interfere
with an exhibition, celebration, festival or other event;
(3)
Misrepresentation of any fact by the applicant or permittee;
(4)
Failure of the applicant or permittee to maintain required bonds
and/or insurance hereunder;
(5)
Failure of the applicant or permittee to complete work in a timely
manner;
(6)
The proposed activity is contrary to the public health, safety or
welfare, which considerations shall include, but in no way be limited
to, accident design factors of any pole or structure placed into the
right-of-way, visibility issues arising from any structure placed
in the right-of-way, the loading design of such structure(s), and
the amount of existing equipment on any existing structure;
(7)
The extent to which right-of-way space where the right-of-way permit
is sought is available;
(8)
The competing demands for the particular space in the right-of-way;
(9)
The availability of other locations in the right-of-way or in other
rights-of-way for the facilities of the right-of-way permit application;
(10)
The applicability of ordinances or other regulations of the
right-of-way that affect location of facilities in the right-of-way;
(11)
The condition and age of the right-of-way, and whether and when
it is scheduled for total or partial reconstruction;
(12)
The Department, or the City's police or fire department,
determines that the right-of-way permit, as applied for or the ultimate
use permitted thereunder, creates unsafe conditions; or
(13)
The applicant, permittee or permittee's contracted third
parties are otherwise not in full compliance with the requirements
of this article, or state or federal law, including, but not limited
to, Federal Communication Commission laws and regulations.
B.
Discretionary issuance. Notwithstanding Subsection A, the Department may, but shall not be required to, issue a permit where issuance is necessary: (1) to prevent substantial economic hardship to a customer of the permittee or applicant; or (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 revoking,
suspending, refusing to issue or refusing to extend a right-of-way
permit may file a request for review with the Common Council. A request
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 permittee shall immediately notify the City by verbal notice
on an emergency phone number provided by the City of any event regarding
its facilities that it considers to be an emergency. The permittee
may proceed to take whatever actions are necessary to respond to the
emergency. Within two business days after the cessation of the emergency,
the permittee shall apply for any 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 regarding a permittee's
facility, the Department may attempt to contact the permittee. The
City may take whatever actions it deems necessary to protect the public
safety as a result of the emergency, the cost of which shall be borne
by the permittee whose facility occasioned the emergency.
B.
Nonemergency situation. Except in an emergency under Subsection A, 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 said permit, pay double all other fees required by this article or other chapters of the City Code, deposit with the Department the fees necessary to correct any damage to the right-of-way and comply with all of the requirements of this article.
If the excavation of the right-of-way begins later or ends sooner
than the date given on the right-of-way permit, permittee shall notify
the Department of the accurate information as soon as this information
is known.
A.
Corridors. The Department may assign specific corridors within the
right-of-way, consistent with Wisconsin Public Service Commission
Standards. 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 consistent with the
Wisconsin Public Service Commission's corridor selection standards.
B.
Limitation of space. The Department may prohibit or limit the placement
of new or additional equipment or facilities within the right-of-way
if:
(1)
There is insufficient space to accommodate all of the current and
reasonably anticipated requests 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 equipment
or facilities when required to protect the long term interests of
the public, health, safety or welfare;
(2)
The proposed pole, equipment, or structure would exceed the reasonable
height, setback or size limitations imposed on building or other structures
in the immediately abutting zoning district and/or airport height
limits established elsewhere in this Code;
(3)
The number of poles, equipment, or other structures in a given area
exceeds a density that is reasonable for the area in question in light
of surrounding current and planned uses and in light of the public
and adjoining property owners' health, safety or welfare; or
(4)
The proposed poles, equipment, structures or additions to such poles
or infrastructure would materially and adversely impact the area or
the adjoining property owners' health, safety or welfare.
C.
Except as prohibited by state or federal law, a permittee 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. The Department may make such request
to prevent interference by the faculties with:
(1)
A present or future City use of the right-of-way;
(2)
A public improvement undertaken by the City;
(3)
An economic development project in which the City has an interest
or investment;
(4)
When the public health, safety and welfare require it, as determined
by the Department, the City's Common Council, or its police or
fire department; or
(5)
When necessary to prevent interference with the safety and convenience
of ordinary travel over the right-of-way, including air travel.
D.
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.
When the City performs work in the right-of-way and finds it
necessary to maintain, support, shore, or move a permittee's
facilities, the City shall notify permittee. The permittee shall meet
with the City's representative within 24 hours and coordinate
the protection, maintenance, supporting, and/or shoring permittee's
facilities. The permittee shall accomplish the needed work within
72 hours, unless the City agrees to a longer period. In the event
that the permittee does not proceed to maintain, support, shore, or
move its facilities, the City may arrange to do the work and bill
the permittee, said bill to be paid within 30 days.
A.
Indemnification. Permittee expressly acknowledges and agrees, by
acceptance of the permit, to 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
permittee's acts or omissions in the exercise of its rights under
this permit, whether caused by or contributed to by the City or its
agents or employees.
B.
Bond. Before a right-of-way permit is issued under this article,
the party applying therefor shall give a bond to the City in a sum
to be fixed by the Director of the Department and which shall not
be less than $5,000, said bond to be executed by a corporate surety
or two personal sureties to be approved by the Mayor or designated
agent conditioned upon, among other things, the indemnification to
the City for any costs or expenses incurred by it in connection with
any claims for damages to any persons or property, and the payment
of any judgment together with the costs and expenses incurred by the
City in connection therewith arising out work conducted or failed
to be conducted as required under the permit.
C.
Insurance. For each right-of-way permit granted hereunder, the permittee
shall, in addition to the said bond above indicated, provide the Director
of the Department with proof of public liability insurance covering
injury to one person in the sum of not less than $200,000 and for
one accident in a sum not less than $400,000, together with property
damage insurance in a sum not less than $100,000, or such other or
further coverage as deemed necessary.
A.
Discontinued operations.
(1)
A permittee who has determined to discontinue its operations in the
City must either:
(a)
Provide information satisfactory to the Department that the
permittee's obligations for its facilities under this article
have been lawfully assumed by another permittee; or
(b)
Submit to the Department a proposal and instruments for dedication
of its facilities to the City. If a permittee proceeds under this
clause, the City may, at its option:
[1]
Accept the dedication for all or a portion of the facilities;
[2]
Require the permittee, at its own expense, to remove the facilities
in the right-of-way at ground or above ground level; or
[3]
Require the permittee to post a bond or provide payment sufficient
to reimburse the City for reasonably anticipated costs to be incurred
in removing the facilities.
(2)
However, any permittee who has unusable and/or abandoned facilities
in any right-of-way shall remove it from that right-of-way within
two years, unless the Department waives this requirement.
B.
Abandoned facilities. Facilities of a permittee who fails to comply with Subsection A, and which, for two years, remains unused 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:
C.
Public utilities. This section shall not apply to a public utility
as defined by § 196.01(5), Wis. Stats.
The City, by the granting of a right-of-way permit to excavate,
obstruct and/or occupy the right-of-way does not surrender or to any
extent lose, waive, impair, or lessen the lawful powers and rights,
which it has now or maybe 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; and the permittee, by its
acceptance of a right-of-way permit to excavate, obstruct and/or occupy
the right-of-way, agrees that all lawful powers and rights, regulatory
power, or police power, or otherwise as are or 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 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 safety and welfare of the public
and is deemed to agree to comply with all applicable general law and
ordinances enacted by the City pursuant to such powers.
If any section, subsection, sentence, clause, phrase, or portion
of this article is for any reason held invalid or unconstitutional
by any court or administrative agency of competent jurisdiction, such
portion shall be deemed a separate, distinct, and independent provision
and such holding shall not affect the validity of the remaining portions
thereof.
Whether capitalized or not, as used in this article, the following
terms shall have the following meanings:
The City of Hayward, a Wisconsin municipal corporation.
The accelerated depreciation of the right-of-way, caused
by excavation of the right-of-way, resulting in the need to reconstruct
such right-of-way earlier than would be required if the excavation
did not occur.
The Department of Public Works of the City of Hayward.
A condition that:
To dig into or in any way remove or physically disturb or
penetrate any part of a right-of-way.
All equipment owned, operated, leased or subleased in connection
with the operation of a service or utility service, and shall include
but is not 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.
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 to whom a permit to excavate or occupy a right-of-way
has been granted by the City under this article.
Any municipality, corporation, company, association, firm,
partnership, limited liability company, limited liability partnership
and individuals and their lessors, transferees and receivers.
To perform construction work necessary to make the right-of-way
usable for travel, according to department specifications, or to return
facilities to an operable condition.
The surface and space above and below a public roadway, highway,
street, bicycle lane and public sidewalk in which the City has an
interest, including other dedicated rights-of-way for travel purposes.
This article shall become effective on its passage and publication
as provided for by law.
