§ 9.21. Right-of-way excavation and occupancy.

(1)

Definitions.

(a)

Director. The director of public works or his/her designee.

(b)

Excavate. To dig into or in any way remove or physically disturb or penetrate any part of a right-of-way.

(c)

Facility. Any 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.

(d)

Local representative. A local person or persons, or designee of such person or persons, authorized by an occupant to accept service and to make decisions for that occupant regarding all matters within the scope of this chapter.

(e)

Occupant. Any person having facilities above, on, in or below the boundaries of the public right-of-way. For the purposes of this section, "occupant" shall exclude a private transmission facility regulated under section 9.33, Green Bay Municipal Code.

(f)

Person. A corporation, company, association, firm, partnership, limited liability company, limited liability partnership, and individuals and their lessors, transferees, and receivers.

(g)

Public utility. The meaning provided in § 196.01(5), Wis. Stats.

(h)

Right-of-way. The surface and the 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.

(2)

Excavation permit.

(a)

Permit required. No cut, excavation, or service connection shall be made in any right-of-way unless a permit therefore is obtained from the director. The provisions of this section shall not apply to the construction or replacement of public sidewalks.

(b)

Obstruction. If any traveled portion of a street, alley, or sidewalk is obstructed in any manner while doing the work allowed by the above permit, a separate permit must be obtained from the Director in accordance with section 9.27, Green Bay Municipal Code.

(c)

Permit application. Application for a permit shall be made to the director. Permit applications shall contain and will be considered complete only upon compliance with the following requirements:

1.

Form and drawings. Submission of the completed permit application form as established by the director, including all required attachments, drawings showing the location and area of the proposed facilities, and the size of the cut, excavation or service connection. The proposed excavation must accommodate all existing underground facilities within the proposed route.

2.

Insurance. The permittee shall file a certificate of insurance with the city risk manager giving evidence of liability insurance in the amounts required by resolution of the common council for bodily injury and property damage aggregate. Such insurance shall not be cancelled or reduced without the insurer giving ten days' prior written notice to the risk manager. Cancellation or reduction of insurance shall automatically suspend the permit, and no further work shall be done under such permit until a new certificate of insurance complying herewith is filed with the risk manager.

3.

Bond. A bond in the form of cash or a performance bond shall be deposited or filed with the city clerk prior to the issuance of the permit. The director shall determine the dollar amount based upon the estimated cost to restore the area involved to a condition the same or similar to that prior to the cut and/or excavation.

4.

Payment. Payment of the permit fees and costs as set forth below.

5.

Public utilities. Subsections 2 and 3 shall not apply to a public utility.

6.

Approval. Permits shall be acted upon within 30 days or be deemed granted.

(d)

Permit fee.

1.

Fee schedule. The permit fee shall be established by resolution of the common council in an amount sufficient to recover the costs incurred by the city. This fee shall recover the administrative and inspection costs of the permit application. Payment of said fee shall be collected prior to the issuance of the permit. The fee shall be waived for permits for utility work in new subdivisions and within the limits of public works projects, when work is undertaken in conjunction with the installation of pavement.

2.

Substantial projects. For those 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 director may assess the actual costs of the city employees' time engaged in review and inspection of the anticipated work, multiplied by a factor determined by the respective department to represent the city's cost for statutory expenses, benefits, insurance, sick leave, holidays, vacation and similar benefits, overhead and supervision, said factor not to exceed 2.0, plus the cost of mileage attributed to the work, plus all consultant fees associated with the work at the invoiced amount, plus ten percent for administration.

3.

City exemption. The city and its contractors shall not pay fees for excavations due to general government functions.

4.

Non-refundable. Permit fees paid are not refundable.

5.

Exceeding application specifications. A permittee exceeding the scope of the project reported under subsection (2)(c)1 shall reimburse the city for all additional costs incurred in addition to the normal fee for the entire project as established pursuant to subsection (2)(d)1 above.

(e)

Location of facilities.

1.

Underground. The permittee shall endeavor to install facilities underground or within buildings or other structures in conformity with applicable codes, unless in conflict with state or federal law, existing above-ground facilities are used or otherwise approved by the director. The director may direct that the installation be made underground if the public health, safety or welfare so requires.

2.

Limitation of space. The director 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 the right-of-way. In making such decisions, the director 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. In reaching this conclusion, the director may consider a utility's obligation to serve.

3.

Attachment to bridges. Whenever a permittee requests permission to attach pipes, conduits, cables or wires to any city bridge structure, the applicant shall pay all costs associated with the granting of such permission, including, but not limited to, administrative expenses 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 case of repair, removal, or replacement of said bridge structure by the city.

(f)

Style of cut. All excavations in permanently improved streets shall be made by final saw cuts around the perimeter of the excavation. Any jagged edges or irregularities left by the person making the excavation will be re-sawed and a patch made accordingly at the expense of the permittee.

(g)

Repair of paved areas.

1.

Temporary. Excavated material shall be hauled away by the contractor. All excavations made in paved areas in the public right-of-way shall be backfilled with 3/4 inch crushed stone and compacted in 12-inch layers with mechanical compaction equipment. The crushed stone shall be so placed to within three inches of the finished grade, and the excavated area shall then be filled with three inches of cold mix bituminous surface which shall be paved to conform to the existing paved surface. The permittee shall be responsible for all costs associated with maintaining the temporary repair.

2.

Permanent. Unless otherwise approved by the director, disturbed pavement shall be replaced by an authorized contractor retained by the city pursuant to the street excavation repair policy, and the permittee shall be responsible for the cost of these repairs. If the replacement pavement settles or cracks within five years of the date of the permit and if failure of the replacement is due to improper backfill or compaction, the pavement and backfill in the excavation area shall be removed and replaced at the expense of the permittee.

(h)

Repair of unpaved areas. All excavations in areas of rights-of-way which are not paved shall be backfilled with natural material compacted in 12-inch layers with mechanical compaction equipment. The surface shall be restored to its original condition, subject to the approval of the director. The permittee shall guarantee this work for one year from the date of repair.

(3)

Occupancy.

(a)

Obligation. An occupant shall provide the director with the following:

1.

The occupant's name, Digger's Hotline registration certificate number, address, and telephone and facsimile numbers.

2.

The name, address, and telephone and facsimile numbers of a local representative, including current information regarding how to contact the local representative in an emergency.

3.

The occupant shall keep all of the information listed above current at all times by providing the Director information as to changes within 15 business days following the date on which the occupant has knowledge of any change.

(b)

Relocation of facilities. An occupant 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 and having determined that the public health, safety or welfare so requires, requests such removal and relocation. Notwithstanding the foregoing, an occupant shall not be required to remove or relocate its facilities from 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 occupant therefore.

(c)

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 an occupant's facilities, the city shall notify the local representative. The occupant shall meet with the city's representative within 24 hours and coordinate the protection, maintenance, supporting, and/or shoring of the occupant's facilities. The occupant shall accomplish the needed work within 72 hours, unless the city agrees to a longer period. In the event that the occupant does not proceed to maintain, support, shore or move its facilities within such time, the city may arrange to do the work and bill the occupant, said bill to be paid within 30 days.

(d)

Abandoned and unused facilities.

1.

Discontinued operations. An occupant who has determined to discontinue its operations must either:

a.

Provide information satisfactory to the director that the occupant's obligations under this section for its facilities have been lawfully assumed by another occupant; or

b.

Submit to the director a proposal and instruments for transferring ownership of its facilities to the city. If an occupant proceeds under this clause, the city may, at its option:

i.

Accept the dedication for all or a portion of the facilities; or

ii.

Require the occupant, at its own expense, to remove the facilities; or

iii.

Require the occupant to post a bond or provide payment sufficient to reimburse the city for reasonably anticipated costs to be incurred in removing the facilities.

2.

Abandoned facilities. Facilities which for two years remain unused shall be deemed abandoned. Any occupant having abandoned equipment in any right-of-way shall remove it from that right-of-way within two years, unless the Director waives this requirement. Abandoned facilities are deemed to be a nuisance. In addition to any remedies or rights it has at law or in equity, the City may, at its option, abate the nuisance, take possession of the facilities, or require the removal of the facilities by the occupant or the occupant's successor in interest.

3.

Public utilities. This subsection shall not apply to a public utility that is required to follow the provisions of § 196.81, Wis. Stats.

(e)

Reserved.

(f)

Emergency situations. Each occupant or their agent 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 occupant may proceed to take whatever actions are necessary to respond to the emergency. Within two business days after the occurrence of the emergency, the occupant shall apply for the necessary permits, pay the fees associated therewith, and otherwise fully comply with the requirements of this section.

(4)

Appeal of decisions. Any applicant, permittee or occupant aggrieved by a decision of the director under this section may file a request for review before the improvement and services committee. A request for review shall be filed within ten days of receipt of notice of the decision. The improvement and services committee shall commence a hearing within 30 days of the request. The determination of the improvement and services committee shall be subject to approval by the common council. Ch. 68, Wis. Stats., shall not apply to the administrative process outlined above.

(5)

Severability. If any subsection, sentence, clause, phrase or portion of this section is 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.

(6)

Penalty. Any person who violates this section or fails to comply with the provisions of this section shall be subject to a forfeiture of up to $1,000.00. Each day such violation or failure to comply continues shall be considered a separate offense.

(7)

Application. The provisions of this section shall also apply to recorded easements held by the city whenever and wherever the term "right-of-way" is used herein.

(Ord. No. 4-01; Ord. No. 23-15)