Wisconsin 2023-2024 Regular Session

Wisconsin Senate Bill SB270 Compare Versions

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3	3	2023 - 2024 LEGISLATURE
4	4	2023 SENATE BILL 270
5	5	May 8, 2023 - Introduced by Senators TOMCZYK, COWLES and TESTIN, cosponsored
6	6	by Representatives STEFFEN, EDMING, BODDEN, GREEN, MAXEY, MURSAU,
7	7	PLUMER, RETTINGER, SCHMIDT, SPIROS, SWEARINGEN, VANDERMEER and WITTKE.
8	8	Referred to Committee on Transportation and Local Government.
9	9	AN ACT to renumber 84.063 (1) (a) and 84.063 (1) (b); to amend 84.01 (31) and
10	10	84.062 (1) (L); and to create 84.063 (1) (c), 84.063 (1) (e), 84.063 (1) (g) and
11	11	84.063 (4m) of the statutes; relating to: damages claims relating to delayed
12	12	relocation of utilities in a highway right-of-way and modifying administrative
13	13	rules promulgated by the Department of Transportation.
14	14	Analysis by the Legislative Reference Bureau
15	15	This bill creates a process for a highway improvement contractor to seek
16	16	damages for project delays that are the result of an uncompleted relocation or
17	17	adjustment of a utility facility located in the right-of-way of the highway. “Utility
18	18	facility” means any pipe, pipeline, duct, wire line, conduit, pole, tower, equipment,
19	19	or other structure used for transmission, distribution, or delivery of electrical power,
20	20	light, heat, water, gas, sewer, telegraph, or telecommunication services.
21	21	Under current law, if a utility facility is within the right-of-way of a proposed
22	22	highway project, the Department of Transportation must notify the owner, who must
23	23	then provide DOT with a description and general location of each utility facility. DOT
24	24	must then provide the owner with a set of plans for the proposed project. The owner
25	25	must submit a work plan to DOT proposing any relocations or adjustments to utility
26	26	facilities required by the proposed project. DOT must review work plans for
27	27	compliance with permit requirements and, once approved, notify the owner when
28	28	utility facility relocation work may begin.
29	29	Under the bill, a contractor that incurs costs as a result of a utility relocation
30	30	delay may file a utility delay damages claim with the department. “Utility relocation
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37	37	SENATE BILL 270
38	38	delay” means a change in operations of a contractor or the rescheduling of work by
39	39	a contractor that is caused by the uncompleted relocation or adjustment of a utility
40	40	facility located in the right-of way, regardless of whether the relocation or
41	41	adjustment of the utility facility is identified in a plan.
42	42	The bill requires DOT to notify the owner of the relevant utility facility upon
43	43	receipt of a damages claim. The owner may respond to the claim by providing
44	44	additional information related to the claim. DOT must consider all information
45	45	provided and, if DOT determines that a utility relocation delay occurred, must
46	46	compensate the contractor for costs incurred as a result.
47	47	Under the bill, if a utility relocation delay was caused by a utility facility
48	48	owner's failure to complete a relocation in accordance with an approved plan, the
49	49	utility facility owner is liable to DOT for any compensation paid to a contractor as
50	50	a result of a utility relocation delay. The owner must make payment to DOT within
51	51	60 days, subject to the right to appeal DOT's determination. If the owner fails to
52	52	make the required payment, DOT may seek remedy by filing a civil suit against the
53	53	owner.
54	54	The bill requires DOT to submit a report to the Joint Committee on Finance
55	55	within four years providing specified information about utility relocation damages
56	56	claims received by DOT. Within six months of receipt of the report, JFC must make
57	57	a recommendation as to whether the process created by the bill should be amended
58	58	or repealed.
59	59	For further information see the state fiscal estimate, which will be printed as
60	60	an appendix to this bill.
61	61	The people of the state of Wisconsin, represented in senate and assembly, do
62	62	enact as follows:
63	63	SECTION 1. 84.01 (31) of the statutes is amended to read:
64	64	84.01 (31) ACCOMMODATION OF UTILITY FACILITIES WITHIN HIGHWAY RIGHTS-OF-WAY.
65	65	Notwithstanding ss. 84.06 (4), 84.063, 84.065, and 84.093, the department may, upon
66	66	finding that it is feasible and advantageous to the state, negotiate and enter into an
67	67	agreement to accept any plant or equipment used for the conveyance, by wire, optics,
68	68	radio signal, or other means, of voice, data, or other information at any frequency
69	69	over any part of the electromagnetic spectrum, or to accept any services associated
70	70	with the collection, storage, forwarding, switching, and delivery incidental to such
71	71	communication, as payment for the accommodation of a utility facility, as defined in
72	72	s. 84.063 (1) (b) (f), within a highway right-of-way. Any agreement under this
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85	85	SECTION 1
86	86	SENATE BILL 270
87	87	subsection is exempt from ss. 16.70 to 16.75, 16.755 to 16.82, and 16.85 to 16.89, but
88	88	ss. 16.528, 16.752, and 16.754 apply to such agreement.
89	89	SECTION 2. 84.062 (1) (L) of the statutes is amended to read:
90	90	84.062 (1) (L) “Project” means a project involving a highway improvement, as
91	91	defined in s. 84.063 (1) (a) (d).
92	92	SECTION 3. 84.063 (1) (a) of the statutes is renumbered 84.063 (1) (d).
93	93	SECTION 4. 84.063 (1) (b) of the statutes is renumbered 84.063 (1) (f).
94	94	SECTION 5. 84.063 (1) (c) of the statutes is created to read:
95	95	84.063 (1) (c) “Contractor” means a person who is seeking or has entered into
96	96	a highway improvement contract with the department under s. 84.06.
97	97	SECTION 6. 84.063 (1) (e) of the statutes is created to read:
98	98	84.063 (1) (e) “Owner” means an owner of a utility facility.
99	99	SECTION 7. 84.063 (1) (g) of the statutes is created to read:
100	100	84.063 (1) (g) “Utility relocation delay” means a change in operations of a
101	101	contractor or the rescheduling of work by a contractor that is caused by the
102	102	uncompleted relocation or adjustment of a utility facility located in the right-of way,
103	103	regardless of whether the relocation or adjustment of the utility facility is identified
104	104	in a plan under sub. (3).
105	105	SECTION 8. 84.063 (4m) of the statutes is created to read:
106	106	84.063 (4m) UTILITY RELOCATION DELAY DAMAGES CLAIMS. (a) A contractor that
107	107	incurs costs as a result of a utility relocation delay may file a utility relocation delay
108	108	damages claim with the department.
109	109	(b) The department shall notify the owner of the relevant utility facility upon
110	110	receipt of a claim under par. (a). The owner may respond to the claim by providing
111	111	additional information related to the claim.
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138	138	SECTION 8 SENATE BILL 270
139	139	(c) The department shall consider all information provided by the contractor
140	140	under par. (a) and, if applicable, the owner under par. (b). If the department
141	141	determines that a utility relocation delay occurred, the department shall compensate
142	142	the contractor for costs incurred as a result of the utility relocation delay and may
143	143	not impose liquidated damages. The amount of compensation under this paragraph
144	144	shall be calculated and paid in accordance with the department's standard
145	145	specifications for compensable delays.
146	146	(d) 1. If a utility relocation delay identified under par. (c) was caused by an
147	147	owner's failure to complete a relocation in accordance with a work plan approved by
148	148	the department under sub. (3), the owner shall be liable to the department for
149	149	compensation paid to a contractor under par. (c). An owner shall not be liable under
150	150	this subdivision when the failure to complete a relocation is caused by circumstances
151	151	outside of the owner's reasonable control. The department may not assess against
152	152	the owner any fees, costs, or expenses in excess of the compensation paid under par.
153	153	(c). Subject to subd. 2., an owner shall make payment to the department no later than
154	154	60 days after receiving notice of the amount owed.
155	155	2. An owner may appeal the decision of the department under subd. 1. as
156	156	provided in s. 227.42 if the owner previously responded to the claim as provided in
157	157	par. (b). Any amount that the owner owes to the department under subd. 1. shall be
158	158	stayed pending the appeal.
159	159	3. If an owner fails to make payment of amounts owed to the department under
160	160	this paragraph, the department may seek remedy by filing a civil suit against the
161	161	owner.
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187	187	SECTION 8
188	188	SENATE BILL 270
189	189	(e) The department may not consider amounts paid or owed under par. (d) when
190	190	making a determination on an owner's permit application, amounts paid to the
191	191	owner under par. (4) (a) or s. 84.09, or any other matter involving the owner.
192	192	SECTION 9. Trans 220.06 (7) (c) of the administrative code is amended to read:
193	193	Trans 220.06 (7) (c) If the owner fails to provide a work plan as provided in s.
194	194	Trans 220.05, or fails to complete the alteration or relocation of its facilities in
195	195	accordance with the work plan approved by the department as provided in s. Trans
196	196	220.05, the owner shall be liable to the contractor for all delay costs and liquidated
197	197	damages incurred by the contractor which are The department shall compensate the
198	198	contractor for any costs caused by or which grow out of failure of the owner to carry
199	199	out and complete its work in accordance with the approved work plan attributed to
200	200	a utility relocation delay as defined in s. 84.063 (1) (g), Stats., and may not impose
201	201	liquidated damages. The owner shall be liable, subject to the right to appeal the
202	202	decision of the department under s. 227.42, Stats., for compensation paid by the
203	203	department to a contractor under this paragraph for a utility relocation delay, as
204	204	defined in s. 84.063 (1) (g), Stats., that was caused by the owner's failure to complete
205	205	a relocation in accordance with the work plan approved by the department as
206	206	provided in s. Trans 220.05. The owner shall not be liable to the department for any
207	207	delay if the owner's failure to complete the relocation in accordance with the work
208	208	plan approved by the department was due to circumstances outside of the owner's
209	209	reasonable control.
210	210	SECTION 10.0Nonstatutory provisions.
211	211	(1) No later than the last day of the first month following the effective date of
212	212	this subsection, the department of transportation shall update its standard
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238	238	SECTION 10 SENATE BILL 270
239	239	specifications for compensable delays to conform with the requirements under s.
240	240	84.063 (4m).
241	241	(2) No later than 4 years after the effective date of this subsection, the
242	242	department of transportation shall submit a report to the joint committee on finance
243	243	detailing utility relocation damages claims received by the department, including
244	244	total claims received, claims denied, payments made to contractors, damages
245	245	recovered from owners, the length and impact of delays, and net expenditures by the
246	246	department. No later than 6 months after receipt of the report under this subsection,
247	247	the joint committee on finance shall make a recommendation to the legislature as to
248	248	whether s. 84.063 (4m) should be amended or repealed.
249	249	(END)
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