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119 - Excavations and Occupancy by Utilities
Ordinance #119
Streets and Alleys
Excavations and Occupancy by Utilities - City of Madison
The Common Council of the City of Madison do ordain as follows:
1. Section 10.03 entitled "Permit to Make Excavations" of the Madison General Ordinances is hereby repealed.
2. Section 10.05 entitled "Occupancy of Streets by Utilities" of the Madison General Ordinances is repealed and recreated as follows:
10.05 OCCUPANCY OF RIGHTS-OF-WAY.
(1) General Provisions.
(a) Purpose and Findings. In the exercise of governmental functions the city has priority over all other uses of the public rights-of-way. The City desires to anticipate and minimize the number of obstructions and excavations taking place therein and to regulate the placement of facilities in the Rights-of-Way to ensure that the Rights-of-Way remain available for public services and safe for public use. The taxpayers of the City bear the financial burden for the upkeep of the rights-of-way and a primary cause for the early and excessive deterioration of its rights-of-way is the frequent excavation by Persons who locate facilities therein.
The City finds increased use of the public rights-of-way and increased costs to the taxpayers of the City and that these costs are likely to continue into the foreseeable future.
The City finds that occupancy and excavation of its rights-of-way causes costs to be borne by the City and its taxpayers, including but not limited to:
1. Administrative costs associated with public right-of-way projects, such as registration, permitting, inspection and supervision, supplies and materials.
2. Management costs associated with ongoing management activities necessitated by public right-of-way users.
3. Repair or restoration costs to the roadway associated with the actual excavation into the public right-of-way.
4. Degradation costs defined as depreciation caused to the roadway in terms of decreased useful life, due to excavations into the public rights-of-way.
In response to the foregoing facts, the City hereby enacts this ordinance relating to administration of and permits to excavate, obstruct and/or occupy the public rights-of-way. This ordinance imposes reasonable regulations on the placement and maintenance of equipment currently within its rights-of-way or to be placed therein at some future time. It is intended to complement the regulatory roles of state and federal agencies.
The purpose of this ordinance is to provide the City a legal framework within which to regulate and manage the public rights-of-way, and to provide for recovery of the costs incurred in doing so. This ordinance provides for the health, safety and welfare of the residents of the City as they use the right-of-way of the city, as well as to ensure the structural integrity of the public rights-of-way.
(b) Definitions. The following definitions apply in this ordinance. References hereafter to "sections" are unless otherwise specified references to sections in this ordinance. Defined terms remain defined terms whether or not capitalized.
"Applicant" means any person requesting permission to excavate, obstruct and/or occupy a right-of-way.
"City" shall mean the City of Madison, Wisconsin, a Wisconsin municipal corporation.
"Degradation" means the decrease in the useful life of the paved portion of the right-of-way, excluding the sidewalk right-of-way, caused by an 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.
"Department" means the Department of Public Works of the City.
"Emergency" means a condition that (1) poses a clear and immediate danger to life or health, or of a significant loss of property; or (2) requires immediate repair or replacement in order to restore service to a customer.
"Engineer" means the City Engineer or his/her designee.
"Excavate" means to dig into or in any way remove or physically disturb or penetrate any part of a right-of-way.
"Facilities" means all equipment owned, operated, ]eased 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.
"In", when used in conjunction with "right-of-way", means over, above, within, on or under a right-of-way.
"Local representative" means a local person or persons, or designee of such person or persons, authorized by a registrant to accept service and to make decisions for that registrant regarding all matters within the scope of this Chapter
"Obstruct" means 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
"Permittee" shall mean any Person to whom a permit to occupy, excavate or obstruct a Right-of-Way has been granted by the City under Chapter 10 of the ordinances.
"Person" shall mean corporation, company, association, firm, partnership, limited liability company, limited liability partnership and individuals and their lessors, transferees and receivers.
'"Prequalified Contractor" means a contractor approved by the Department on an annual basis to work in the right-of-way.
"Public Utility" has the meaning provided in Wis Stats 196.01(5).
"Registrant" means any person who has registered with the City to have its facilities located in any right-of-way.
"Repair" means to perform construction work necessary to make the right-of-way useable for travel according to Department specifications, or to restore equipment to an operable condition.
"Restore or Restoration" means the process by which an excavated right-of-way and surrounding area, including pavement and foundation is reconstructed, per Department specifications.
"Right-of-Way" means the surface and space above and below an improved or unimproved 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.
(c) Administration. The Engineer or his/her designee is responsible for the administration of the rights-of-way, and the permits and ordinances related thereto.
(2) Registration for Right-of-Way Occupancy.
(a) Each person who has, or seeks to have, facilities located in any right-of-way shall register with the Department and pay the fee set forth in Section 10.05(4). Registration will consist of providing application information and paying a registration fee. This section shall not apply to those persons who have facilities in the right-of-way pursuant to a franchise or other agreement.
(b) No person may construct, install, maintain, repair, remove, relocate or perform any other work on, or use any equipment or any part thereof in any right-of-way unless that person is registered with the Department or is prequalified contractor.
(c) Nothing herein shall be construed to repeal or amend the provisions of a City ordinance requiring persons to plant or maintain the tree lawn in the area of the right-of-way between their property and the street curb or pavement; construct sidewalks or driveways or other similar activities. Persons performing such activities shall not be required to obtain any permits under this Chapter.
(3) Registration Information. The information provided to the Department at the time of registration shall include, but not be limited to:
(a) Each registrant's name, Diggers Hotline registration certificate number, address and email address, if applicable, and telephone and facsimile numbers.
(b) The name, address and e-mail address, if applicable, and telephone and facsimile numbers of a local representative. The local representative or designee shall be available at all times. Current information regarding how to contact the local representative in an emergency shall be provided at the time of registration.
(c) A certificate of insurance on a form prescribed by the Department.
(d) If the registrant is a corporation, a LLC or LLP, a copy of any certificate required to be filed under Wisconsin Statutes as recorded and certified by the Secretary of State.
(e) A copy of the registrant's certificate of authority from the Wisconsin Public Service Commission or other applicable state or federal agency, where the person is lawfully required to have such certificate from said commission or other state or federal agency.
(f) Execution of an indemnification agreement in a form prescribed by the Department.
(g) The registrant shall keep all of the information listed above current at all times by providing to the Department information as to changes within fifteen (15) working days following the date on which the registrant has knowledge of any change.
(4) Registration Fee. The Department shall charge an annual Registration Fee in an amount of $65 to recover the costs incurred by the City for processing and updating registration information.
(5) Reporting Obligations. It is in the best interests of all affected parties to attempt to coordinate construction in the public right-of-way whenever it is reasonably possible. Therefore, periodic reporting by the registrant of known construction plans will be useful to achieve this objective.
(a) Every registrant shall, at the time of registration and no later than January I of each year, file a construction and major maintenance plan with the Department. The Department shall make available at the time of registration, and on January 15 of each year the Department's construction and major maintenance plan. The registrant's plan and the Department's plan shall be submitted on a form prescribed by the Department and shall contain the information determined by the Department to be necessary to facilitate the coordination and reduction in the frequency of excavations of rights-of-way. The plan shall include, but shall not be limited to, the following information:
1. The locations and the estimated beginning and ending dates of all projects planned to be commenced during the next calendar year; and
2. The tentative locations and estimated beginning and ending dates for all projects contemplated for the two years following the next calendar year.
(b) By February 15 of each year, the Department will have available for inspection in its office a composite list of all projects of which the Department has been informed in the annual plans. All registrants are responsible for keeping themselves informed of the current status of this list.
(c) Thereafter, by February 1, each registrant may change any project in its list and must notify the Department of all such changes in said list. The Department will make all such changes available for inspection in its office. Notwithstanding the foregoing, a registrant may at any time join in a project of another registrant listed by the other registrant or undertake any maintenance or construction project not listed in registrant's plan.
(6) Permit to Excavate in Right-of-Way Required.
(a) Excavation Permit Required. Except as otherwise provided in this Chapter or other Chapters of the Madison General Ordinances, no person shall excavate any right-of-way without first having obtained an excavation permit from the Department. A copy of any permit issued under this Chapter 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.
(b) Excavation Permit Application. Application for a permit shall be made to the Department. Permit applications shall contain, and will be considered complete only upon compliance with the requirements of the following provisions:
1. Registration with the Department if required by this Chapter.
2. 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 that are part of applicant's proposed project.
3. Payment of all money due to the City for:
a. applicable permit fees and costs as set forth below;
b. subject to Section 10.05(6)(b)4., unpaid fees or costs due for prior excavations; or
c. subject to Section 10.05(6)(b)4., any loss, damage, or expense suffered by the City because of applicant's prior excavations of the rights-of-way or any emergency actions taken by the City.
4. The Department shall not deny an applicant an excavation permit because of a dispute between the City and the applicant, related to Section 10.053(6)(b)3.a. or c. if:
a. the dispute has been adjudicated in favor of the applicant;
b. the dispute is the subject of any appeal filed by the applicant and no decision in the matter has as yet been rendered.
(7) Excavation Permit Fee. 'Me Excavation Permit Fee shall be established by the Department in an amount sufficient to recover the costs incurred by the City. This fee shall recover administrative and inspection costs, as well as degradation costs should the permittee choose to repair rather than restore the right-of-way. Payment of said fees shall be collected prior to issuance of the permit. However, the Engineer may, with the advice and consent of the Comptroller, establish a fee collection process from governmental agencies and private utilities in order to expedite the permitting system and recognize that certain excavations are deemed emergencies.
(a) Waiving of Fees. Fees shall not be waived unless the work involved is a direct result of the Engineer's demand that a plant owned by a utility be removed or relocated or unless waived by the Board of Public Works on appeal.
(b) Fee Schedule. The minimum fee for each excavation permit shall be thirty dollars ($30); plus an additional ten dollars ($10) per 100 square feet for excavation and thirty cents ($.30) per lineal foot for boring. Excavation permits for utility work in new subdivisions and within the limits of public works projects, where the work is undertaken prior to the installation of pavement, shall only be charged the minimum fee. The fee for a pen-nit issued after commencing work, except in cases of emergency as determined by the Engineer, shall be double the fees set forth herein, This permit fee shall be in addition to any forfeiture provided elsewhere in this ordinance.
For those permit applications which provide for a substantial undertaking of excavation within the public right-of-way attended by disruption of the general public and traffic, the Engineer is authorized to assess the actual cost of the City employee's time engaged in the review and inspection of the anticipated work multiplied by a factor determined by the respective department to represent the City's cost for statutory expense, benefits, insurance, sick leave, holidays, vacation and similar benefits, overhead and supervision, said factor not to exceed 2.0, plus the cost of mileage reimbursed to City employees which is attributed to the work, plus all consultant fees associated with the work at the invoiced amount plus ten percent (10%) for administration.
(c) City Exemption. The City and its contractors shall not pay degradation fees for excavations due to general government functions.
(d) Permit fees paid for a permit that the Department has revoked are not refundable.
(8) Right-of-Way Repair/Restoration.
(a) The Permittee shall be required to repair the public right-of-way to Department specifications, subject to inspection and acceptance by the Department, and to pay a degradation fee, as per Section 10.05(8)(d), unless the Permittee elects to restore the right-of-way pursuant to Section 10.05(8)(e). In addition to repairing its own work, the Permittee must repair the general area of the work, and the surrounding areas, including the paving and its foundations, to the specifications of the Department. The Department shall inspect the, area of the work and accept the work when it determines that proper repair has been made, per specifications of the Department.
(b) Guarantees. The Permittee guarantees its work and shall maintain it for thirty-six (36) months following its completion. During this period it shall, upon notification from the. Department, correct all work to the extent necessary, using the method required by the Department. Said work shall be completed within ten (10) calendar days of the receipt of the notice from the Department, not including days during which work cannot be done because of circumstances constituting force majeure.
(c) Failure to Repair/Restore. If the Permittee fails to repair/restore the right-of-way in the manner and to the condition required by the Department, or fails to satisfactorily and timely complete all work required by the Department, the Department at Its option may do such work. In that event the Perinittee shall pay to the City, within thirty (30) days of billing, the cost of repairing/restoring the right-of-way.
(d) Degradation. The general formula for computing the degradation fee shall be the cost per square yard for street overlay and seal coat multiplied by the appropriate depreciation rate for that street multiplied by the area of the patch. The area or the patch shall be calculated by adding one foot to each side of the actual street cut. Degradation fee schedule is provided in Figure I at the end of the ordinance. .
(e) Restoration in Lieu of Repair and Degradation. The Permittee may elect to restore the excavation and surrounding pavement in lieu of repair and a degradation fee. The restoration shall be in accordance with the Standard Specifications for Public Works Construction and the plans and specifications of the Department. The Permittee shall then also comply with Section 10.05(8)(b) and (c).
(9) Inspection.
(a) Notice of Completion. When the work under any permit hereunder is begun and completed, the Permittee shall notify the Department.
(b) Site 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 of and upon completion of the work.
(c) Authority of Department. At the time of inspection the City may order the immediate cessation 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 registrant or Permittee for any work that does not conform to the applicable City standards, conditions or codes. The order shall state that failure to correct the violation will be cause for revocation of the permit. Within ten (10) days after issuance of the order, the registrant or 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 Section 10.05(12).
(10) Ongoing Management Fees.
The cost of trimming trees around facilities is an ongoing cost to the City. The specific cost will be determined and a fee to offset those costs may be assessed in the future.
(11) Compliance with Other Laws. Obtaining a permit to excavate and/or occupy the right-of-way does not relieve 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.
(12) Revocations, Suspensions, Refusals to Issue or Extend Permits.
(a) The Department may refuse to issue a pen-nit or may revoke, suspend or refuse to extend an existing permit if it finds any of the following grounds:
I . The applicant or Permittee is required to be registered and has not done so;
2. Issuance of a 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;
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;
7. The extent to which right-of-way space where the 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 Permittee or applicant;
10. The applicability of ordinances or other regulations of the right-of-way that affect location of facilities in the right-of-way;
(b) Discretionary Issuance. The Department may issue a permit where issuance is necessary (a) to prevent substantial economic hardship to a customer of the Permittee or applicant, or (b) to allow such customer to materially improve its utility service, or (c) 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 permit may file a request for review with the Board of Public Works. A request for review shall be filed within ten (10) days of the decision being appealed. Following a hearing, the Board of Public Works may affirm, reverse or modify the decision of the Department.
(13) Work Done Without a Permit.
(a) Emergency Situations. Each registrant 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 registrant may proceed to take whatever actions are necessary to respond to the emergency. Within two business days after the occurrence of the emergency the registrant shall apply for the necessary permits, pay the fees associated therewith and otherwise fully comply with the requirements of this Chapter.
If the City becomes aware of any emergency regarding a registrant's facilities, the Department may attempt to contact the local representative of each registrant affected, or potentially affected, by the emergency. The City may take whatever action it deems necessary to protect the public safety as a result of the emergency, the cost of which shall be borne by the registrant whose facilities occasioned the emergency.
(b) Non-Emergency 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 said permit, pay double all the other fees required by this Chapter or other Chapters of the Madison General Ordinances, 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 Chapter.
(14) Location of Facilities.
(a) Undergrounding. Unless in conflict with state or federal law, except when existing aboveground facilities are used, the installation of new facilities and replacement of old facilities shall be done underground or contained within buildings or other structures in conformity with applicable codes.
(b) 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 all of the requests of persons 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 public, health, safety or welfare.
(c) Attachment to Bridges. Whenever an applicant or Permittee under this section requests permission to attach pipes, conduits, cables or wires to any City bridge structure, the applicant shall pay a fee of $1,000 upon the granting of such permission to help defray administrative expense in the analysis and inspection of such installation. The owner of such pipes, conduits, cables or wires shall be entitled to no compensation for removal or relocation of the same in the case of repair, removal, or replacement of said bridge structure by the City.
(15) Relocation of Facilities. A registrant must, promptly and at its own expense, permanently remove and relocate its facilities in the right-of-way whenever the City, acting in its governmental capacity, requests such removal and relocation. If requested, the registrant shall restore the right-of-way.
Notwithstanding the foregoing, a person shall not be required to remove or relocate its facilities fi7om any right-of-way which has been vacated in favor of a non-governmental entity unless and until the reasonable costs thereof are first paid to the person therefor.
(16) Interference with Other Facilities during Municipal Construction. When the City performs work in the right-of-way and finds it necessary to maintain, support, shore, or move a registrant's facilities, the city shall notify the local representative. The registrant shall meet with the City's representative within twenty-four (24) hours and coordinate the protection, maintenance, supporting and/or shoring of the registrant's facilities. The registrant shall accomplish the needed work within seventy-two (72) hours, unless the City agrees to a longer period.
In the event that the registrant does not proceed to maintain, support, shore or move its facilities, the City may arrange to do the work and bill the registrant, said bill to be paid within thirty (30) days.
(17) Abandoned Facilities.
(a) Discontinued Qperations. A registrant who has determined to discontinue its operations in the City must either:
1. Provide information satisfactory to the Department that the registrant's obligations for its facilities tinder this Chapter have been lawfully assumed by another registrant; or
2. Submit to the Department a proposal and instruments for dedication of its facilities to the City. If a registrant proceeds under this clause, the City may, at its option:
a. accept the dedication for all or a portion of the facilities; or
b. require the registrant, at its own expense, to remove the facilities in the right-of-way at ground or above ground level; or
c. require the registrant to post a bond or provide payment sufficient to reimburse the City for reasonably anticipated costs to be incurred in removing the facilities.
However, any registrant who has unusable and abandoned facilities in any rightof-way shall remove it from that right-of-way within two years, unless the Department waives this requirement.
(b) Abandoned Facilities. Facilities of a registrant who fails to comply with Section 10.05(17)(a)l., and which, for two (2) 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 (i) abate the nuisance, (ii) take possession of the facilities, or (iii) require removal of the facilities by the registrant, or the registrant's successor in interest.
(c) Public Utilities. This section shall not apply to a public utility, as defined by Section 196.01(5), Wis. Stats, that is required to follow the provisions of Section 196.81, Wis. Stats.
(18) Reservation of Regulatory and Police Powers. The City, by the granting of a permit to excavate, obstruct and/or occupy the right-of-way, or by registering a person under this Chapter does not surrender or in 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 permit to excavate, obstruct and/or occupy the right-of-way or of registration under this Chapter agrees that all lawful powers and rights, regulatory powers, 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 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.
(19) Severability. If any section, subsection, sentence, clause, phrase, or portion of this Chapter 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.
(20) Penalty. Any person who violates this ordinance or fails to comply with the provisions of this ordinance shall be subject to a forfeiture of not less than one hundred twenty dollars ($120) nor more than six hundred dollars ($600). Each day such violation or failure to comply continues shall be considered a separate offense."
EDITOR'S NOTE: Sections 10.03 and 10.05 currently read as follows:
"10.03 PERMIT TO MAKE EXCAVATIONS.
(1) No person, fin-n, corporation or utility shall make or cause to be made any excavation in or under any street, alley or sidewalk in the City, except as provided otherwise in these ordinances, without first obtaining from the Board of Public Works a written pen-nit for the making of such excavation. A copy of the approved permit shall be available at the site of excavation when work covered by the permit is in progress.
(2) The application for the pen-nit provided for in the preceding subsection shall state the purpose for which the permit is desired and the location of the proposed excavation, which shall contain an agreement that the applicant will pay all damages to persons or property, public or private, caused by the applicant, his agents, employees or servants in the doing or erection of the work for which the permit is granted. Any applicant may be required as a condition to the granting of a permit, in the discretion of the Board of Public Works, to file an undertaking in such amount as the Board of Public Works shall determine to leave the street, sidewalk or alley in as good condition as the same was in when the work was commenced, to at all times keep the place where the excavation is made properly guarded by day and lighted by night, and to save the City harmless from any and all damages, costs, and charges that may accrue from the applicant's use of such street, sidewalk or alley by reason of such excavation.
(3) No permit for an excavation granted under the provisions of this section shall be deemed to convey or grant any privilege to occupy the space within or below any street or sidewalk, or any utility, vault, pipe, drain or any other thing whatsoever. Rights or privileges for the occupancy of public streets or vaults, signs, awnings, poles, pipes, conduits, etc., may only be obtained and granted under the particular provision relating thereto contained in this chapter, Chapter II (Public Utilities), Chapter 29 (Building Code), and general statutory provisions.
(4) When excavations are made under the provisions of this section, the excavations shall not be left open longer than the necessities of the work demand. In refilling the excavation all earth, stone and screenings shall be thoroughly and properly tamped and the surface of the street, sidewalk or alley left in as good condition as the same was in before the excavation was made. Provided, however, that whenever it is necessary to break into a sidewalk for the purpose of making any excavation authorized under this section, the entire stone so broken into shall be removed and replaced, it being the intent of this subsection to prohibit the patching of an entire stone or stones of a sidewalk.
(5) Before any excavation, street cut or blockade in any street or sidewalk is made by any person, firm, corporation or utility under the provisions of this section, forty-eight (48) hours advance notice shall be given by the utility, contractor or person intending to make such excavation, street cut or blockade to the Traffic Engineering Division and to the Traffic Bureau of the Police Department, except in cases of emergency.
(6) Fee Schedule.
(a) Scope. The fees fixed in this ordinance shall be assessed and collected by the Division of Engineering of the Department of Public Works for the inspection of the excavation and restoration of openings within street right-of-ways, and for the administration of the permit system. Payment of said fees shall be collected prior to issuance of the permit. However, the Engineer may, with the advice and consent of the Comptroller, establish a fee collection process from governmental agencies and private utilities in order to expedite the permitting system and recognize that certain excavations are deemed emergencies.
(b) Waiving of Fees. Fees shall not be waived unless the work involved is a direct result of the City Engineer's demand that a plant owned by a utility be removed or relocated or unless waived by the Board of Public Works on appeal.
(c) Fee Schedule, Effective July 1, 1994. The minimum fee for each excavation permit shall be eighteen dollars ($18); plus an additional twelve dollars ($12) for each additional excavation within the street right-of-way shown on the permit application; plus twelve dollars ($12) per 100 linear feet or increment thereof, measured along the centerline of the excavation in excess of 100 feet for each excavation; plus nine hundred dollars ($900) for each excavation within the pavement of a street whose pavement has been installed or resurfaced in that year or in the previous year. Excavation permits for utility work in new subdivisions and within the limits of public works projects, where the work is undertaken prior to the installation of pavement, shall only be charged the minimum fee. Those excavation permits issued for road boring (in lieu of trenching) shall not be charged the additional fee for the additional excavations associated with each individual boring operation. The fee for a permit issued after commencing work, except in cases of emergency as determined by the City Engineer, shall be double the fees set forth herein. This permit fee shall be in addition to any forfeiture provided elsewhere in this ordinance. For those permit applications which provide for a substantial undertaking of excavation within the public right-of-way attended by disruption of the general public and traffic, the Engineer is authorized to assess the actual cost of the City employee's time engaged in the review and inspection of the anticipated work multiplied by a factor determined by the respective department to represent the City's cost for statutory expense, benefits, insurance, sick leave, holidays, vacation and similar benefits, overhead and supervision, said factor not to exceed 2.0, plus the cost of mileage reimbursed to City employees which is attributed to the work, plus all consultant fees associated with the work at the invoiced amount plus ten percent (10%) for administration.
(7) Penalty. Any person who violates this ordinance or fails to comply with the provisions of this ordinance shall be subject to a forfeiture of not less than one hundred twenty dollars ($120) nor more than six hundred dollars ($600). Each day such violation or failure to comply continues shall be considered a separate offense.
10.05 OCCUPANCY OF STREETS BY UTILITIES.
(1) To be approved by Common Council. Before any person, corporation, association or public body shall erect, construct, or maintain any telegraph, telephone or electric poles, or any pipes, conduits, sewers or drains upon, along or within any street or alley, he or it shall submit to the Common Council the route of the proposed line or lines or any extension thereof of said poles, conduits, sewers or pipes, stating the name of the street or streets to be occupied, or if alley, the number of the block and as far as practicable the location of the lines of said utility, and no such poles, sewers, conduits, drains or pipes shall be constructed, erected or laid until permission shall have been first obtained from the Common Council. The Common Council shall refer any such application for the use of any City street to the Board of Public Works and said Board shall determine the time and manner of using the streets for laying, changing, placing or maintaining any pipes, conduits, poles, sewers or drains therein, provided that its decision in this regard may be reviewed by the Council. See Wisconsin Statutes, Section 62.14(6)(b). When requested by the City, the applicant shall install or permit the City to install City-furnished conduit or conduits along its trench route for exclusive City use, as a condition of granting the street opening permit. The City will pay only incremental additional costs directly related to the City's conduit installation, such as wider or deeper trenches solely to accommodate City conduit or conduits. In situations where such incremental additional costs exist, the applicant shall give the City reasonable notice of such costs prior to the work being performed. The applicant shall give the City reasonable advance notice of when the work will be at a point where the City-furnished conduit or conduits can be installed, and the City will arrange for prompt delivery and/or installation of the conduit or conduits. Whenever an applicant under this section requests permission to attach pipes, conduits, cables or wires to any City bridge structure, the applicant shall pay a fee of $1,000 upon the granting of such permission to help defray administrative expense in the analysis and inspection of such installation. The owner of such pipes, conduits, cables or wires shall be entitled to no compensation for removal or relocation of the same in the case of repair, removal, or replacement of said bridge structure by the City.
(2)Use of alleys when practicable. Whenever the use of any alley for the purpose of erecting poles or constructing sewers, pipes, drains or conduits is practicable, such poles or such sewers, drains or conduits shall be placed upon or along said alley, instead of along or upon a public street. When poles are set in any alley they shall be located as near the sidelines as practicable and in such manner as not to unreasonably incommode the public or adjoining proprietor or resident.
(3) Where poles are to be located. When telephone, telegraph or electric poles are erected in a street they shall be erected in all cases, unless specifically directed by the Board of Public Works, on the outer edge of the sidewalk just inside the curbstone, and on the line dividing the lots one from another; and in no case shall they be so placed as to unreasonably incommode the public or the adjoining proprietor or resident, or to disturb the drainage of the street, or to interfere with or damage the trees or other public or private property on the line of the street or alley where such pole or poles shall be erected. Whenever any street or alley in which there exists or may be any telegraph, telephone or light poles, or any sewers, drains, pipes or conduits of any private or public utility or public body, shall be repaired or improved, it shall be the duty of the person, firm, corporation, utility or public body owning, operating or maintaining such poles, pipes, drains, sewers or conduits to make at his or at their own expense such changes or alterations in the location, construction, grade, elevation or such other changes as may be necessary to conform to the new construction or improvement of the street or alley ordered or authorized by the City of Madison.
(4) Right of City to use poles and conduits. The City shall have the right to use without charge a place on any pole or post or any conduit erected or laid in the streets, alleys or other public places of said City for the purpose of stringing thereon or for laying therein a wire or wires for the exclusive use of the City departments; and no such pole or posts or conduit so used shall be removed until the City Traffic Engineer shall have been reasonably notified of such contemplated removal.
(5) Persons erecting poles or laying wires shall save Ci1y harmless. Every person, corporation or association erecting any poles, posts or wires or laying any conduits herein mentioned shall, before commencing the erection of said poles or posts, and before the stringing of said wires or laying of said conduits, file an agreement with the City Clerk to save the City harmless of and from any and all injury and damage of any kind caused or occurring thereby, or by reason of the negligent management or default of said persons, corporation or association or its or their agents, in the construction, management or operation -of said poles, wires or conduits, and also an agreement giving to the City the use of a place on all poles or posts and the use of all conduits as hereinbefore prescribed.
Streets and Alleys
Excavations and Occupancy by Utilities - City of Madison
The Common Council of the City of Madison do ordain as follows:
1. Section 10.03 entitled "Permit to Make Excavations" of the Madison General Ordinances is hereby repealed.
2. Section 10.05 entitled "Occupancy of Streets by Utilities" of the Madison General Ordinances is repealed and recreated as follows:
10.05 OCCUPANCY OF RIGHTS-OF-WAY.
(1) General Provisions.
(a) Purpose and Findings. In the exercise of governmental functions the city has priority over all other uses of the public rights-of-way. The City desires to anticipate and minimize the number of obstructions and excavations taking place therein and to regulate the placement of facilities in the Rights-of-Way to ensure that the Rights-of-Way remain available for public services and safe for public use. The taxpayers of the City bear the financial burden for the upkeep of the rights-of-way and a primary cause for the early and excessive deterioration of its rights-of-way is the frequent excavation by Persons who locate facilities therein.
The City finds increased use of the public rights-of-way and increased costs to the taxpayers of the City and that these costs are likely to continue into the foreseeable future.
The City finds that occupancy and excavation of its rights-of-way causes costs to be borne by the City and its taxpayers, including but not limited to:
1. Administrative costs associated with public right-of-way projects, such as registration, permitting, inspection and supervision, supplies and materials.
2. Management costs associated with ongoing management activities necessitated by public right-of-way users.
3. Repair or restoration costs to the roadway associated with the actual excavation into the public right-of-way.
4. Degradation costs defined as depreciation caused to the roadway in terms of decreased useful life, due to excavations into the public rights-of-way.
In response to the foregoing facts, the City hereby enacts this ordinance relating to administration of and permits to excavate, obstruct and/or occupy the public rights-of-way. This ordinance imposes reasonable regulations on the placement and maintenance of equipment currently within its rights-of-way or to be placed therein at some future time. It is intended to complement the regulatory roles of state and federal agencies.
The purpose of this ordinance is to provide the City a legal framework within which to regulate and manage the public rights-of-way, and to provide for recovery of the costs incurred in doing so. This ordinance provides for the health, safety and welfare of the residents of the City as they use the right-of-way of the city, as well as to ensure the structural integrity of the public rights-of-way.
(b) Definitions. The following definitions apply in this ordinance. References hereafter to "sections" are unless otherwise specified references to sections in this ordinance. Defined terms remain defined terms whether or not capitalized.
"Applicant" means any person requesting permission to excavate, obstruct and/or occupy a right-of-way.
"City" shall mean the City of Madison, Wisconsin, a Wisconsin municipal corporation.
"Degradation" means the decrease in the useful life of the paved portion of the right-of-way, excluding the sidewalk right-of-way, caused by an 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.
"Department" means the Department of Public Works of the City.
"Emergency" means a condition that (1) poses a clear and immediate danger to life or health, or of a significant loss of property; or (2) requires immediate repair or replacement in order to restore service to a customer.
"Engineer" means the City Engineer or his/her designee.
"Excavate" means to dig into or in any way remove or physically disturb or penetrate any part of a right-of-way.
"Facilities" means all equipment owned, operated, ]eased 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.
"In", when used in conjunction with "right-of-way", means over, above, within, on or under a right-of-way.
"Local representative" means a local person or persons, or designee of such person or persons, authorized by a registrant to accept service and to make decisions for that registrant regarding all matters within the scope of this Chapter
"Obstruct" means 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
"Permittee" shall mean any Person to whom a permit to occupy, excavate or obstruct a Right-of-Way has been granted by the City under Chapter 10 of the ordinances.
"Person" shall mean corporation, company, association, firm, partnership, limited liability company, limited liability partnership and individuals and their lessors, transferees and receivers.
'"Prequalified Contractor" means a contractor approved by the Department on an annual basis to work in the right-of-way.
"Public Utility" has the meaning provided in Wis Stats 196.01(5).
"Registrant" means any person who has registered with the City to have its facilities located in any right-of-way.
"Repair" means to perform construction work necessary to make the right-of-way useable for travel according to Department specifications, or to restore equipment to an operable condition.
"Restore or Restoration" means the process by which an excavated right-of-way and surrounding area, including pavement and foundation is reconstructed, per Department specifications.
"Right-of-Way" means the surface and space above and below an improved or unimproved 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.
(c) Administration. The Engineer or his/her designee is responsible for the administration of the rights-of-way, and the permits and ordinances related thereto.
(2) Registration for Right-of-Way Occupancy.
(a) Each person who has, or seeks to have, facilities located in any right-of-way shall register with the Department and pay the fee set forth in Section 10.05(4). Registration will consist of providing application information and paying a registration fee. This section shall not apply to those persons who have facilities in the right-of-way pursuant to a franchise or other agreement.
(b) No person may construct, install, maintain, repair, remove, relocate or perform any other work on, or use any equipment or any part thereof in any right-of-way unless that person is registered with the Department or is prequalified contractor.
(c) Nothing herein shall be construed to repeal or amend the provisions of a City ordinance requiring persons to plant or maintain the tree lawn in the area of the right-of-way between their property and the street curb or pavement; construct sidewalks or driveways or other similar activities. Persons performing such activities shall not be required to obtain any permits under this Chapter.
(3) Registration Information. The information provided to the Department at the time of registration shall include, but not be limited to:
(a) Each registrant's name, Diggers Hotline registration certificate number, address and email address, if applicable, and telephone and facsimile numbers.
(b) The name, address and e-mail address, if applicable, and telephone and facsimile numbers of a local representative. The local representative or designee shall be available at all times. Current information regarding how to contact the local representative in an emergency shall be provided at the time of registration.
(c) A certificate of insurance on a form prescribed by the Department.
(d) If the registrant is a corporation, a LLC or LLP, a copy of any certificate required to be filed under Wisconsin Statutes as recorded and certified by the Secretary of State.
(e) A copy of the registrant's certificate of authority from the Wisconsin Public Service Commission or other applicable state or federal agency, where the person is lawfully required to have such certificate from said commission or other state or federal agency.
(f) Execution of an indemnification agreement in a form prescribed by the Department.
(g) The registrant shall keep all of the information listed above current at all times by providing to the Department information as to changes within fifteen (15) working days following the date on which the registrant has knowledge of any change.
(4) Registration Fee. The Department shall charge an annual Registration Fee in an amount of $65 to recover the costs incurred by the City for processing and updating registration information.
(5) Reporting Obligations. It is in the best interests of all affected parties to attempt to coordinate construction in the public right-of-way whenever it is reasonably possible. Therefore, periodic reporting by the registrant of known construction plans will be useful to achieve this objective.
(a) Every registrant shall, at the time of registration and no later than January I of each year, file a construction and major maintenance plan with the Department. The Department shall make available at the time of registration, and on January 15 of each year the Department's construction and major maintenance plan. The registrant's plan and the Department's plan shall be submitted on a form prescribed by the Department and shall contain the information determined by the Department to be necessary to facilitate the coordination and reduction in the frequency of excavations of rights-of-way. The plan shall include, but shall not be limited to, the following information:
1. The locations and the estimated beginning and ending dates of all projects planned to be commenced during the next calendar year; and
2. The tentative locations and estimated beginning and ending dates for all projects contemplated for the two years following the next calendar year.
(b) By February 15 of each year, the Department will have available for inspection in its office a composite list of all projects of which the Department has been informed in the annual plans. All registrants are responsible for keeping themselves informed of the current status of this list.
(c) Thereafter, by February 1, each registrant may change any project in its list and must notify the Department of all such changes in said list. The Department will make all such changes available for inspection in its office. Notwithstanding the foregoing, a registrant may at any time join in a project of another registrant listed by the other registrant or undertake any maintenance or construction project not listed in registrant's plan.
(6) Permit to Excavate in Right-of-Way Required.
(a) Excavation Permit Required. Except as otherwise provided in this Chapter or other Chapters of the Madison General Ordinances, no person shall excavate any right-of-way without first having obtained an excavation permit from the Department. A copy of any permit issued under this Chapter 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.
(b) Excavation Permit Application. Application for a permit shall be made to the Department. Permit applications shall contain, and will be considered complete only upon compliance with the requirements of the following provisions:
1. Registration with the Department if required by this Chapter.
2. 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 that are part of applicant's proposed project.
3. Payment of all money due to the City for:
a. applicable permit fees and costs as set forth below;
b. subject to Section 10.05(6)(b)4., unpaid fees or costs due for prior excavations; or
c. subject to Section 10.05(6)(b)4., any loss, damage, or expense suffered by the City because of applicant's prior excavations of the rights-of-way or any emergency actions taken by the City.
4. The Department shall not deny an applicant an excavation permit because of a dispute between the City and the applicant, related to Section 10.053(6)(b)3.a. or c. if:
a. the dispute has been adjudicated in favor of the applicant;
b. the dispute is the subject of any appeal filed by the applicant and no decision in the matter has as yet been rendered.
(7) Excavation Permit Fee. 'Me Excavation Permit Fee shall be established by the Department in an amount sufficient to recover the costs incurred by the City. This fee shall recover administrative and inspection costs, as well as degradation costs should the permittee choose to repair rather than restore the right-of-way. Payment of said fees shall be collected prior to issuance of the permit. However, the Engineer may, with the advice and consent of the Comptroller, establish a fee collection process from governmental agencies and private utilities in order to expedite the permitting system and recognize that certain excavations are deemed emergencies.
(a) Waiving of Fees. Fees shall not be waived unless the work involved is a direct result of the Engineer's demand that a plant owned by a utility be removed or relocated or unless waived by the Board of Public Works on appeal.
(b) Fee Schedule. The minimum fee for each excavation permit shall be thirty dollars ($30); plus an additional ten dollars ($10) per 100 square feet for excavation and thirty cents ($.30) per lineal foot for boring. Excavation permits for utility work in new subdivisions and within the limits of public works projects, where the work is undertaken prior to the installation of pavement, shall only be charged the minimum fee. The fee for a pen-nit issued after commencing work, except in cases of emergency as determined by the Engineer, shall be double the fees set forth herein, This permit fee shall be in addition to any forfeiture provided elsewhere in this ordinance.
For those permit applications which provide for a substantial undertaking of excavation within the public right-of-way attended by disruption of the general public and traffic, the Engineer is authorized to assess the actual cost of the City employee's time engaged in the review and inspection of the anticipated work multiplied by a factor determined by the respective department to represent the City's cost for statutory expense, benefits, insurance, sick leave, holidays, vacation and similar benefits, overhead and supervision, said factor not to exceed 2.0, plus the cost of mileage reimbursed to City employees which is attributed to the work, plus all consultant fees associated with the work at the invoiced amount plus ten percent (10%) for administration.
(c) City Exemption. The City and its contractors shall not pay degradation fees for excavations due to general government functions.
(d) Permit fees paid for a permit that the Department has revoked are not refundable.
(8) Right-of-Way Repair/Restoration.
(a) The Permittee shall be required to repair the public right-of-way to Department specifications, subject to inspection and acceptance by the Department, and to pay a degradation fee, as per Section 10.05(8)(d), unless the Permittee elects to restore the right-of-way pursuant to Section 10.05(8)(e). In addition to repairing its own work, the Permittee must repair the general area of the work, and the surrounding areas, including the paving and its foundations, to the specifications of the Department. The Department shall inspect the, area of the work and accept the work when it determines that proper repair has been made, per specifications of the Department.
(b) Guarantees. The Permittee guarantees its work and shall maintain it for thirty-six (36) months following its completion. During this period it shall, upon notification from the. Department, correct all work to the extent necessary, using the method required by the Department. Said work shall be completed within ten (10) calendar days of the receipt of the notice from the Department, not including days during which work cannot be done because of circumstances constituting force majeure.
(c) Failure to Repair/Restore. If the Permittee fails to repair/restore the right-of-way in the manner and to the condition required by the Department, or fails to satisfactorily and timely complete all work required by the Department, the Department at Its option may do such work. In that event the Perinittee shall pay to the City, within thirty (30) days of billing, the cost of repairing/restoring the right-of-way.
(d) Degradation. The general formula for computing the degradation fee shall be the cost per square yard for street overlay and seal coat multiplied by the appropriate depreciation rate for that street multiplied by the area of the patch. The area or the patch shall be calculated by adding one foot to each side of the actual street cut. Degradation fee schedule is provided in Figure I at the end of the ordinance. .
(e) Restoration in Lieu of Repair and Degradation. The Permittee may elect to restore the excavation and surrounding pavement in lieu of repair and a degradation fee. The restoration shall be in accordance with the Standard Specifications for Public Works Construction and the plans and specifications of the Department. The Permittee shall then also comply with Section 10.05(8)(b) and (c).
(9) Inspection.
(a) Notice of Completion. When the work under any permit hereunder is begun and completed, the Permittee shall notify the Department.
(b) Site 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 of and upon completion of the work.
(c) Authority of Department. At the time of inspection the City may order the immediate cessation 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 registrant or Permittee for any work that does not conform to the applicable City standards, conditions or codes. The order shall state that failure to correct the violation will be cause for revocation of the permit. Within ten (10) days after issuance of the order, the registrant or 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 Section 10.05(12).
(10) Ongoing Management Fees.
The cost of trimming trees around facilities is an ongoing cost to the City. The specific cost will be determined and a fee to offset those costs may be assessed in the future.
(11) Compliance with Other Laws. Obtaining a permit to excavate and/or occupy the right-of-way does not relieve 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.
(12) Revocations, Suspensions, Refusals to Issue or Extend Permits.
(a) The Department may refuse to issue a pen-nit or may revoke, suspend or refuse to extend an existing permit if it finds any of the following grounds:
I . The applicant or Permittee is required to be registered and has not done so;
2. Issuance of a 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;
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;
7. The extent to which right-of-way space where the 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 Permittee or applicant;
10. The applicability of ordinances or other regulations of the right-of-way that affect location of facilities in the right-of-way;
(b) Discretionary Issuance. The Department may issue a permit where issuance is necessary (a) to prevent substantial economic hardship to a customer of the Permittee or applicant, or (b) to allow such customer to materially improve its utility service, or (c) 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 permit may file a request for review with the Board of Public Works. A request for review shall be filed within ten (10) days of the decision being appealed. Following a hearing, the Board of Public Works may affirm, reverse or modify the decision of the Department.
(13) Work Done Without a Permit.
(a) Emergency Situations. Each registrant 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 registrant may proceed to take whatever actions are necessary to respond to the emergency. Within two business days after the occurrence of the emergency the registrant shall apply for the necessary permits, pay the fees associated therewith and otherwise fully comply with the requirements of this Chapter.
If the City becomes aware of any emergency regarding a registrant's facilities, the Department may attempt to contact the local representative of each registrant affected, or potentially affected, by the emergency. The City may take whatever action it deems necessary to protect the public safety as a result of the emergency, the cost of which shall be borne by the registrant whose facilities occasioned the emergency.
(b) Non-Emergency 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 said permit, pay double all the other fees required by this Chapter or other Chapters of the Madison General Ordinances, 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 Chapter.
(14) Location of Facilities.
(a) Undergrounding. Unless in conflict with state or federal law, except when existing aboveground facilities are used, the installation of new facilities and replacement of old facilities shall be done underground or contained within buildings or other structures in conformity with applicable codes.
(b) 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 all of the requests of persons 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 public, health, safety or welfare.
(c) Attachment to Bridges. Whenever an applicant or Permittee under this section requests permission to attach pipes, conduits, cables or wires to any City bridge structure, the applicant shall pay a fee of $1,000 upon the granting of such permission to help defray administrative expense in the analysis and inspection of such installation. The owner of such pipes, conduits, cables or wires shall be entitled to no compensation for removal or relocation of the same in the case of repair, removal, or replacement of said bridge structure by the City.
(15) Relocation of Facilities. A registrant must, promptly and at its own expense, permanently remove and relocate its facilities in the right-of-way whenever the City, acting in its governmental capacity, requests such removal and relocation. If requested, the registrant shall restore the right-of-way.
Notwithstanding the foregoing, a person shall not be required to remove or relocate its facilities fi7om any right-of-way which has been vacated in favor of a non-governmental entity unless and until the reasonable costs thereof are first paid to the person therefor.
(16) Interference with Other Facilities during Municipal Construction. When the City performs work in the right-of-way and finds it necessary to maintain, support, shore, or move a registrant's facilities, the city shall notify the local representative. The registrant shall meet with the City's representative within twenty-four (24) hours and coordinate the protection, maintenance, supporting and/or shoring of the registrant's facilities. The registrant shall accomplish the needed work within seventy-two (72) hours, unless the City agrees to a longer period.
In the event that the registrant does not proceed to maintain, support, shore or move its facilities, the City may arrange to do the work and bill the registrant, said bill to be paid within thirty (30) days.
(17) Abandoned Facilities.
(a) Discontinued Qperations. A registrant who has determined to discontinue its operations in the City must either:
1. Provide information satisfactory to the Department that the registrant's obligations for its facilities tinder this Chapter have been lawfully assumed by another registrant; or
2. Submit to the Department a proposal and instruments for dedication of its facilities to the City. If a registrant proceeds under this clause, the City may, at its option:
a. accept the dedication for all or a portion of the facilities; or
b. require the registrant, at its own expense, to remove the facilities in the right-of-way at ground or above ground level; or
c. require the registrant to post a bond or provide payment sufficient to reimburse the City for reasonably anticipated costs to be incurred in removing the facilities.
However, any registrant who has unusable and abandoned facilities in any rightof-way shall remove it from that right-of-way within two years, unless the Department waives this requirement.
(b) Abandoned Facilities. Facilities of a registrant who fails to comply with Section 10.05(17)(a)l., and which, for two (2) 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 (i) abate the nuisance, (ii) take possession of the facilities, or (iii) require removal of the facilities by the registrant, or the registrant's successor in interest.
(c) Public Utilities. This section shall not apply to a public utility, as defined by Section 196.01(5), Wis. Stats, that is required to follow the provisions of Section 196.81, Wis. Stats.
(18) Reservation of Regulatory and Police Powers. The City, by the granting of a permit to excavate, obstruct and/or occupy the right-of-way, or by registering a person under this Chapter does not surrender or in 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 permit to excavate, obstruct and/or occupy the right-of-way or of registration under this Chapter agrees that all lawful powers and rights, regulatory powers, 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 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.
(19) Severability. If any section, subsection, sentence, clause, phrase, or portion of this Chapter 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.
(20) Penalty. Any person who violates this ordinance or fails to comply with the provisions of this ordinance shall be subject to a forfeiture of not less than one hundred twenty dollars ($120) nor more than six hundred dollars ($600). Each day such violation or failure to comply continues shall be considered a separate offense."
EDITOR'S NOTE: Sections 10.03 and 10.05 currently read as follows:
"10.03 PERMIT TO MAKE EXCAVATIONS.
(1) No person, fin-n, corporation or utility shall make or cause to be made any excavation in or under any street, alley or sidewalk in the City, except as provided otherwise in these ordinances, without first obtaining from the Board of Public Works a written pen-nit for the making of such excavation. A copy of the approved permit shall be available at the site of excavation when work covered by the permit is in progress.
(2) The application for the pen-nit provided for in the preceding subsection shall state the purpose for which the permit is desired and the location of the proposed excavation, which shall contain an agreement that the applicant will pay all damages to persons or property, public or private, caused by the applicant, his agents, employees or servants in the doing or erection of the work for which the permit is granted. Any applicant may be required as a condition to the granting of a permit, in the discretion of the Board of Public Works, to file an undertaking in such amount as the Board of Public Works shall determine to leave the street, sidewalk or alley in as good condition as the same was in when the work was commenced, to at all times keep the place where the excavation is made properly guarded by day and lighted by night, and to save the City harmless from any and all damages, costs, and charges that may accrue from the applicant's use of such street, sidewalk or alley by reason of such excavation.
(3) No permit for an excavation granted under the provisions of this section shall be deemed to convey or grant any privilege to occupy the space within or below any street or sidewalk, or any utility, vault, pipe, drain or any other thing whatsoever. Rights or privileges for the occupancy of public streets or vaults, signs, awnings, poles, pipes, conduits, etc., may only be obtained and granted under the particular provision relating thereto contained in this chapter, Chapter II (Public Utilities), Chapter 29 (Building Code), and general statutory provisions.
(4) When excavations are made under the provisions of this section, the excavations shall not be left open longer than the necessities of the work demand. In refilling the excavation all earth, stone and screenings shall be thoroughly and properly tamped and the surface of the street, sidewalk or alley left in as good condition as the same was in before the excavation was made. Provided, however, that whenever it is necessary to break into a sidewalk for the purpose of making any excavation authorized under this section, the entire stone so broken into shall be removed and replaced, it being the intent of this subsection to prohibit the patching of an entire stone or stones of a sidewalk.
(5) Before any excavation, street cut or blockade in any street or sidewalk is made by any person, firm, corporation or utility under the provisions of this section, forty-eight (48) hours advance notice shall be given by the utility, contractor or person intending to make such excavation, street cut or blockade to the Traffic Engineering Division and to the Traffic Bureau of the Police Department, except in cases of emergency.
(6) Fee Schedule.
(a) Scope. The fees fixed in this ordinance shall be assessed and collected by the Division of Engineering of the Department of Public Works for the inspection of the excavation and restoration of openings within street right-of-ways, and for the administration of the permit system. Payment of said fees shall be collected prior to issuance of the permit. However, the Engineer may, with the advice and consent of the Comptroller, establish a fee collection process from governmental agencies and private utilities in order to expedite the permitting system and recognize that certain excavations are deemed emergencies.
(b) Waiving of Fees. Fees shall not be waived unless the work involved is a direct result of the City Engineer's demand that a plant owned by a utility be removed or relocated or unless waived by the Board of Public Works on appeal.
(c) Fee Schedule, Effective July 1, 1994. The minimum fee for each excavation permit shall be eighteen dollars ($18); plus an additional twelve dollars ($12) for each additional excavation within the street right-of-way shown on the permit application; plus twelve dollars ($12) per 100 linear feet or increment thereof, measured along the centerline of the excavation in excess of 100 feet for each excavation; plus nine hundred dollars ($900) for each excavation within the pavement of a street whose pavement has been installed or resurfaced in that year or in the previous year. Excavation permits for utility work in new subdivisions and within the limits of public works projects, where the work is undertaken prior to the installation of pavement, shall only be charged the minimum fee. Those excavation permits issued for road boring (in lieu of trenching) shall not be charged the additional fee for the additional excavations associated with each individual boring operation. The fee for a permit issued after commencing work, except in cases of emergency as determined by the City Engineer, shall be double the fees set forth herein. This permit fee shall be in addition to any forfeiture provided elsewhere in this ordinance. For those permit applications which provide for a substantial undertaking of excavation within the public right-of-way attended by disruption of the general public and traffic, the Engineer is authorized to assess the actual cost of the City employee's time engaged in the review and inspection of the anticipated work multiplied by a factor determined by the respective department to represent the City's cost for statutory expense, benefits, insurance, sick leave, holidays, vacation and similar benefits, overhead and supervision, said factor not to exceed 2.0, plus the cost of mileage reimbursed to City employees which is attributed to the work, plus all consultant fees associated with the work at the invoiced amount plus ten percent (10%) for administration.
(7) Penalty. Any person who violates this ordinance or fails to comply with the provisions of this ordinance shall be subject to a forfeiture of not less than one hundred twenty dollars ($120) nor more than six hundred dollars ($600). Each day such violation or failure to comply continues shall be considered a separate offense.
10.05 OCCUPANCY OF STREETS BY UTILITIES.
(1) To be approved by Common Council. Before any person, corporation, association or public body shall erect, construct, or maintain any telegraph, telephone or electric poles, or any pipes, conduits, sewers or drains upon, along or within any street or alley, he or it shall submit to the Common Council the route of the proposed line or lines or any extension thereof of said poles, conduits, sewers or pipes, stating the name of the street or streets to be occupied, or if alley, the number of the block and as far as practicable the location of the lines of said utility, and no such poles, sewers, conduits, drains or pipes shall be constructed, erected or laid until permission shall have been first obtained from the Common Council. The Common Council shall refer any such application for the use of any City street to the Board of Public Works and said Board shall determine the time and manner of using the streets for laying, changing, placing or maintaining any pipes, conduits, poles, sewers or drains therein, provided that its decision in this regard may be reviewed by the Council. See Wisconsin Statutes, Section 62.14(6)(b). When requested by the City, the applicant shall install or permit the City to install City-furnished conduit or conduits along its trench route for exclusive City use, as a condition of granting the street opening permit. The City will pay only incremental additional costs directly related to the City's conduit installation, such as wider or deeper trenches solely to accommodate City conduit or conduits. In situations where such incremental additional costs exist, the applicant shall give the City reasonable notice of such costs prior to the work being performed. The applicant shall give the City reasonable advance notice of when the work will be at a point where the City-furnished conduit or conduits can be installed, and the City will arrange for prompt delivery and/or installation of the conduit or conduits. Whenever an applicant under this section requests permission to attach pipes, conduits, cables or wires to any City bridge structure, the applicant shall pay a fee of $1,000 upon the granting of such permission to help defray administrative expense in the analysis and inspection of such installation. The owner of such pipes, conduits, cables or wires shall be entitled to no compensation for removal or relocation of the same in the case of repair, removal, or replacement of said bridge structure by the City.
(2)Use of alleys when practicable. Whenever the use of any alley for the purpose of erecting poles or constructing sewers, pipes, drains or conduits is practicable, such poles or such sewers, drains or conduits shall be placed upon or along said alley, instead of along or upon a public street. When poles are set in any alley they shall be located as near the sidelines as practicable and in such manner as not to unreasonably incommode the public or adjoining proprietor or resident.
(3) Where poles are to be located. When telephone, telegraph or electric poles are erected in a street they shall be erected in all cases, unless specifically directed by the Board of Public Works, on the outer edge of the sidewalk just inside the curbstone, and on the line dividing the lots one from another; and in no case shall they be so placed as to unreasonably incommode the public or the adjoining proprietor or resident, or to disturb the drainage of the street, or to interfere with or damage the trees or other public or private property on the line of the street or alley where such pole or poles shall be erected. Whenever any street or alley in which there exists or may be any telegraph, telephone or light poles, or any sewers, drains, pipes or conduits of any private or public utility or public body, shall be repaired or improved, it shall be the duty of the person, firm, corporation, utility or public body owning, operating or maintaining such poles, pipes, drains, sewers or conduits to make at his or at their own expense such changes or alterations in the location, construction, grade, elevation or such other changes as may be necessary to conform to the new construction or improvement of the street or alley ordered or authorized by the City of Madison.
(4) Right of City to use poles and conduits. The City shall have the right to use without charge a place on any pole or post or any conduit erected or laid in the streets, alleys or other public places of said City for the purpose of stringing thereon or for laying therein a wire or wires for the exclusive use of the City departments; and no such pole or posts or conduit so used shall be removed until the City Traffic Engineer shall have been reasonably notified of such contemplated removal.
(5) Persons erecting poles or laying wires shall save Ci1y harmless. Every person, corporation or association erecting any poles, posts or wires or laying any conduits herein mentioned shall, before commencing the erection of said poles or posts, and before the stringing of said wires or laying of said conduits, file an agreement with the City Clerk to save the City harmless of and from any and all injury and damage of any kind caused or occurring thereby, or by reason of the negligent management or default of said persons, corporation or association or its or their agents, in the construction, management or operation -of said poles, wires or conduits, and also an agreement giving to the City the use of a place on all poles or posts and the use of all conduits as hereinbefore prescribed.