Chapter 200

200.39(5)(b) (b) A deficiency in the source of funds for payment does not relieve the contracting party of liability for failure to pay the commission in full at the time provided in the contract.

200.39(6) (6) Interest on late payments. Contracts executed under this section may provide for interest on late payments.

200.39 History History: 1981 c. 282, 391; 1983 a. 27; 1983 a. 532 s. 36; 1999 a. 150 s. 585; Stats. 1999 s. 200.39.

200.39 Annotation Sub. (4) (c) is unconstitutional; it was passed in violation of Art. IV, s. 18. Brookfield v. Milwaukee Metropolitan Sewerage District, 144 Wis. 2d 896, 426 N.W.2d 591 (1988).

200.41 200.41 Noncontractual sewerage service.

200.41(1) (1) Notwithstanding ss. 66.0821 and 200.55 (5), if the commission establishes a system to recover capital costs within the district on the basis of the value of property in the area to be served, as equalized under s. 70.57, the commission shall establish a system of sewerage service charges to recover capital costs which shall be used with respect to any area which is served by the district and which is outside the boundaries of the district and outside of any municipality which has contracted with the district under s. 200.39. The charges shall be equal to the amount the commission would be authorized to levy as taxes upon the area served if the area were within the district’s boundaries.

200.41(2) (2) Any charge made by the district under this section is reviewable under s. 200.59 (5) if the charge has been paid.

200.41(3) (3) Section 200.55 (5) (b) and (d) apply to charges assessed under this section.

200.41(4) (4) The commission may charge municipalities assessed under this section reasonable interest for late payments.

200.41 History History: 1985 a. 29; 1999 a. 150 s. 586; Stats. 1999 s. 200.41.

200.41 Annotation This section is unconstitutional; it was passed in violation of Art. IV, s. 18. Brookfield v. Milwaukee Sewerage District, 144 Wis. 2d 896, 426 N.W.2d 591 (1988).

200.43 200.43 Acquisition of property.

200.43(1) (1) General power of the commission. The commission may acquire by gift, purchase, lease or other methods of acquisition or by condemnation, any real property situated in the state and all tenements, hereditaments and appurtenances belonging or in any way appertaining to, or in any interest, franchise, easement, right or privilege therein, that may be needed for the purpose of projecting, planning, constructing and maintaining the sewerage system, that may be needed for the collection, transmission or disposal of all sewage or drainage of the district or that may be needed for improving any river or stream within the district under s. 200.35 (8) (a) or (b).

200.43(2) (2) Altering streams over private lands. No stream over private lands may be altered unless the commission acquires the lands under sub. (1) or unless the governing body of the village, town or city in which the stream is located approves the proposed alteration.

200.43(3) (3) Condemnation. Section 32.05 controls the process of condemnation under this section. The commission shall establish the public necessity for any acquisition by condemnation.

200.43(4) (4) Conveyance of property acquired. All property, real or personal, acquired by the commission shall be taken for the benefit of and shall belong to the district. The commission may convey any part of its interest in real or personal property it has acquired that is not needed to carry out the powers and duties of the commission.

200.43 History History: 1981 c. 282, 391; 1999 a. 150 s. 587; Stats. 1999 s. 200.43.

200.45 200.45 Rules; special orders; special use permits.

200.45(1) (1) General rule-making authority.

200.45(1)(a) (a) The commission may adopt the rules both necessary and proper to promote the best results from the construction, operation and maintenance of the sewerage system, to prevent damage to the sewerage system from misuse, injury to employees, surcharging all or part of the sewerage system or interference with the process of sewage treatment or disposal or to comply with federal or state pretreatment requirements. Such rules are applicable to all users. The rules may, without limitation by enumeration:

200.45(1)(a)1. 1. Prohibit discharge into the sewerage system, either directly or indirectly, of any liquid, gaseous or solid waste deemed detrimental to the sewerage system, to the commission’s employees or to the process of sewage treatment or disposal.

200.45(1)(a)2. 2. Prescribe the conditions upon which wastes may be discharged.

200.45(1)(a)3. 3. Prescribe standards of sewer design, construction, operation, alteration and maintenance applicable to any sewerage system connecting with or using the sewerage system and the conditions upon and the manner in which connections to interceptor sewers and replacement of existing district sewers shall be made.

200.45(1)(a)4. 4. Prohibit or restrict discharge into the sewerage system of the district’s service area of any substance if the discharge of that substance would do any of the following:

200.45(1)(a)4.a. a. Interfere with the district’s ability to meet its obligations under a pollution discharge elimination permit or general permit issued under s. 283.31 or 283.35, or under an air pollution control permit issued under ch. 285.

200.45(1)(a)4.b. b. Interfere with the marketing of treated sewage sludge by the district.

200.45(1)(b) (b) The rules shall apply throughout the territory served by the sewerage system and, except as provided in s. 200.35 (5), shall have precedence over any conflicting ordinance, code or regulation of or permit issued by any municipality within the territory.

200.45(1)(c) (c) The commission may adopt, amend or repeal a rule only after notice and public hearing, except that if the preservation of the public health, safety or welfare necessitates putting a rule into effect immediately, the commission may adopt any rule as an emergency rule. An emergency rule is effective for a period of 120 days after the date of adoption unless the commission specifies a shorter period of effectiveness. If the problem that necessitates adopting an emergency rule continues beyond 120 days the commission shall, after providing notice and a hearing, adopt a rule to deal with the problem. Except in the case of an emergency rule, the commission shall publish a notice of the hearing on a proposed rule that includes an informative summary of the proposed rule and specifies the time and place of the hearing at least 30 days prior to the hearing in a newspaper of general circulation in the district. The notice shall also include a statement that judicial review of a rule is available, as provided in par. (d). The commission shall also mail a similar notice to the clerk of each municipality at least 30 days prior to the hearing. The commission shall identify and take all other steps, if any, that it determines are necessary to convey effective notice to persons who are likely to have an interest in the proposed rule making. Failure of any person to receive notice of a hearing on proposed rule making is not grounds for invalidating the resulting rule if notice of the hearing was published and mailed as provided in this paragraph. Insofar as applicable, s. 227.18 governs the conduct of the hearings. A rule adopted by the commission takes effect upon its publication in a newspaper of general circulation in the district.

200.45(1)(d) (d) Except as provided in s. 227.40 (2), the exclusive means of judicial review of the validity of a rule is an action for declaratory judgment as to the validity of the rule brought in the circuit court for the county in which the district is located or for the county in which the plaintiff resides. Upon the motion of any party the court may change the place of the trial under s. 801.52. If 2 or more petitions for review of the same rule are filed in different counties, the circuit court for the county in which a petition for review of a rule was first filed shall determine the venue for judicial review of the rule, to order transfer or consolidation where appropriate. The summons in the action for review shall be served by delivering a copy to the chairperson or secretary of the commission. The court shall render a declaratory judgment in the action only when it appears from the evidence presented that the rule or its threatened application unlawfully interferes with or impairs, or threatens to interfere with or impair, the rights and privileges of the plaintiff. A declaratory judgment may be rendered whether or not the plaintiff has first requested the commission to pass upon the validity of the rule in question. Insofar as applicable, s. 227.40 (2), (3) and (4) govern any declaratory judgment proceeding under this paragraph.

200.45(1)(e) (e) If any person fails to comply with a rule of the district, the district may obtain an injunction under s. 823.02 or the district may initiate an action for the civil remedies under s. 283.91 (2) or (5). If the district acts under s. 283.91 (2) or (5), the district may recover the forfeiture in a civil action brought by the commission in the name of the district. Collected forfeitures shall be paid into the district’s general fund. The forfeiture is in addition to and does not substitute for any damages recoverable by the commission.

200.45(2) (2) Special orders.

200.45(2)(a) (a) The commission may issue special orders in the name of the district directing compliance with the rules of the district within a specified time. All special orders shall be in writing and shall specifically state the action by the user that is required to comply with the order. Service of any special order may be made in the manner provided for service of a summons under s. 801.11. The commission may designate commission employees to issue special orders in the name of the district in an emergency to prevent damage to the sewerage system from misuse, injury to employees, interference with the process of sewage treatment or disposal or substantial risk to the public health and welfare. Special orders are effective and enforceable upon service, unless the commission specifies a later effective date in the special order or agrees to a different effective date.

200.45(2)(b) (b) Any person aggrieved by a special order of the district that directly affects the rights or duties of the person may secure a review of the necessity for and reasonableness of the order by filing with the commission, within 30 days after service of the special order, a verified petition specifying the person’s objections to the order or the modification desired in the order. Upon receipt of the petition, the commission shall order a public hearing on the petition and make any further investigations it determines advisable. Insofar as applicable, ss. 227.44 (6), (7) and (8) and 227.45 to 227.48 govern the proceeding. The determination of the commission upon any petition is subject to review in a proceeding, brought within 30 days after service of notice of the final determination, in the circuit court of the county in which the district is located or of the county in which the plaintiff resides. Insofar as applicable, ss. 227.52 to 227.58 govern any proceeding for judicial review under this paragraph.

200.45(2)(c) (c) If the commission does not stay compliance and a person fails to comply with a special order of the district within the time specified, or if a person fails to begin in good faith to obey, the person is creating a public nuisance enjoinable under s. 823.02. The district may also initiate an action for the civil remedies under s. 283.91 (2) or (5). If the district acts under s. 283.91 (2) or (5), the forfeiture may be recovered by the district in a civil action brought by the commission in the name of the district. Collected forfeitures shall be paid into the district’s general fund. The forfeiture is in addition to and does not substitute for any damages recoverable by the commission.

200.45(3) (3) Special use permits. The commission may issue permits for the special use of the sewerage system to private persons, firms or corporations for the transmission and disposal of any liquid, gaseous or solid waste determined to be not detrimental to the sewerage system, to its employees or to the process of sewage treatment, upon terms and conditions specified by the commission. The commission may prescribe and collect an annual fee not to exceed $500 for any permit for special use. The permit is revocable by the commission summarily for violation of the terms or conditions of the permit. A holder of the permit does not acquire any vested right or privilege by being issued a special use permit under this subsection. Any private person, firm or corporation using the sewerage system without a permit for a use for which a permit may be issued under this subsection, or continuing to use the sewerage system after notice of revocation of the permit, shall forfeit to the district not more than $500 for each violation. The forfeiture may be recovered by the district in a civil action brought by the commission in the name of the district. Collected forfeitures shall be paid into the general fund of the district.

200.45(4) (4) Hearings; designated representatives. The commission may designate representatives to conduct any hearings required under this section and, except as provided in s. 227.46 (5), may designate any member or employee of the commission for that purpose. If more than one person is designated, the commission shall specify the presiding officer for the hearing. All testimony or other evidence taken, appearances for and against the matter involved and a summary of the arguments of all parties shall be reported to the commission in the manner the commission prescribes.

200.45(6) (6) Combined sewer overflow abatement. The commission shall not establish by rule or enforce by special order or other means a duty on the part of any municipality to abate combined sewer overflows.

200.45 History History: 1981 c. 282, 391; 1983 a. 228 s. 16; 1985 a. 29; 1985 a. 182 s. 57; 1989 a. 337, 356; 1995 a. 227; 1999 a. 150 s. 588; Stats. 1999 s. 200.45.

200.47 200.47 Contracts.

200.47(1) (1) General powers of the commission. The commission may enter into contracts, agreements or stipulations necessary to perform its duties and exercise its powers under this subchapter, including contracts to purchase, lease or otherwise obtain the use of all necessary equipment, supplies and labor.

200.47(2) (2) Bidding requirements.

200.47(2)(a) (a) Except as provided in par. (b), all work done and all purchases of supplies and materials by the commission shall be by contract awarded to the lowest responsible bidder complying with the invitation to bid, if the work or purchase involves an expenditure of $20,000 or more. If the commission decides to proceed with construction of any sewer after plans and specifications for the sewer are completed and approved by the commission and by the department of natural resources under ch. 281, the commission shall advertise by a class 2 notice under ch. 985 for construction bids. All contracts and the awarding of contracts are subject to s. 66.0901.

200.47(2)(b) (b) The commission may purchase without public advertisement or competitive bidding if the article, appliance, apparatus, material or process to be purchased is patented or made or manufactured by one party only or if damage or threatened damage to the sewerage system creates an emergency in which public health or welfare is endangered.

200.47(2)(c) (c) The commission shall accept the bid of the person who it finds is the lowest responsible bidder complying with the invitation to bid for the contract unless it rejects all bids or relets the contract.

200.47(2)(cm) (cm)

200.47(2)(cm)1. 1. Except as provided under subd. 4., in determining the lowest responsible bid for any contract awarded prior to December 31, 1993, the commission may evaluate the multiplier effect on state revenues and tax receipts of contract moneys which will be spent in this state under the contract. The commission shall promulgate by rule any condition and evaluation criterion which it applies to a bid evaluated under this subdivision. If the commission accepts a bid evaluated under this subdivision, it shall file with the secretary of the commission a written report detailing the reasons for its acceptance. The secretary shall make the report available for public inspection. The commission shall include in the annual report prepared under s. 200.27 (9) a summary of all bids accepted after an evaluation under this subdivision.

200.47(2)(cm)2. 2. In determining the lowest responsible bid for any contract awarded under this subsection, the commission may use life-cycle cost estimates as part of any evaluation under this subdivision, including the applicable costs of energy efficiency, acquisition and conversion, money, transportation, warehousing and distribution, training, operation and maintenance and disposition or resale.

200.47(2)(cm)3. 3. The commission shall include in any advertisement for bids which it intends to evaluate under this paragraph notice of the conditions and evaluation criteria which it intends to apply to the bids.

200.47(2)(cm)4. 4. This paragraph does not apply to any contract financed in whole or in part by federal funding if any condition of the funding prohibits acceptance of a bid based on the type of evaluation authorized under this paragraph.

200.47(2)(cm)5. 5. Notwithstanding any other provision of law, this state may not deem any contract awarded by the commission under this paragraph ineligible for funding by this state because the dollar amount of the contract awarded by the commission is higher than the lowest dollar bid received by the commission.

200.47(2)(d) (d) Notwithstanding pars. (a) to (c) and in addition to any rights the commission may have under the provisions of the contract, the commission may amend any contract let under par. (a) with the agreement of the contractor, upon making the following findings:

200.47(2)(d)1. 1. The proposed amendment results in a reduction of the total contract price.

200.47(2)(d)2. 2. The changes do not substantially change the general scope or purpose of the contract work.

200.47(2)(e) (e) Paragraphs (a) to (d) do not apply to contracts awarded under s. 200.49.

200.47(3) (3) Bid deposits; contract provisions.

200.47(3)(a) (a) The commission may permit or require a sum of money or a certified check payable to the order of the district or a bond for the benefit of the district to be filed with any bid or proposal as liquidated damages in an amount that, in the judgment of the commission, will protect the district from any loss if the bid is accepted, the contract is awarded to the bidder and the bidder fails to execute a contract in accordance with the terms of the bid.

200.47(3)(b) (b) Every contract made by the commission shall contain an agreement on the part of the contractor and the contractor’s sureties requiring the contractor to pay to the district:

200.47(3)(b)1. 1. Actual damages if the contractor breaches the contract; or

200.47(3)(b)2. 2. Liquidated damages in a definite sum, to be named in the contract, for each day’s delay in completing the contract after the time specified for its completion. The daily sum shall be an amount that, in the judgment of the commission, will protect the district from loss and will ensure the prompt completion of the contract.

200.47(3)(c) (c) The commission may require any construction contract and any other contract specified by the commission’s executive director to include a bond, which shall guarantee one of the following:

200.47(3)(c)1. 1. The full performance of the contract by the contractor to the satisfaction of the commission, according to the plans and specifications of the commission.

200.47(3)(c)2. 2. The full payment by the prime contractor of all claims for labor performed and materials furnished or used under the contract.

200.47(4) (4) Day labor. The commission may use day labor to do any work if the executive director of the district in writing so recommends. All bids or part of a bid for any such work, supplies or materials may be rejected by the commission or may be subsequently relet.

200.47(5) (5) Worker’s compensation. The commission may require that all contracts be let subject to ch. 102.

200.47 History History: 1981 c. 282, 391; 1985 a. 29; 1999 a. 9; 1999 a. 150 s. 589 to 591; Stats. 1999 s. 200.47.

200.47 Annotation This section does not abrogate the applicability of the 1-year statute of limitations applicable to public works contracts under s. 779.14. Frietsh v. Refco, Inc. 56 F.3d 821 (1995).

200.47 Annotation When a mistake of omission in a bid was not material and was quickly cured, an award to the bidder was proper. Dillingham Construction, Inc. v. Milwaukee Metropolitan Sewerage District, 629 F. Supp. 406 (1986).

200.49 200.49 Minority business development and training program.

200.49(1) (1) Definitions. In this section:

200.49(1)(a) (a) “Minority business” means a sole proprietorship, partnership, limited liability company, joint venture or corporation that is at least 51 percent owned and controlled by one or more minority group members and that is engaged in construction or construction-related activities.

200.49(1)(b) (b) “Minority group member” has the meaning given under s. 16.287 (1) (f).

200.49(2) (2) Program created.

200.49(2)(a) (a) From the amounts allocated for purposes of this section under s. 20.866 (2) (to), the district shall fund a development and training program for the purpose of developing the capability of minority businesses to participate in construction and construction-related projects funded under the combined sewer overflow abatement program under s. 281.63.

200.49(2)(b) (b) From the amounts allocated for purposes of this section under s. 20.866 (2) (tc), the district shall fund a development and training program for the purpose of developing the capability of minority businesses to participate in construction and construction-related projects funded under the clean water fund program under ss. 281.58 and 281.59.

200.49(2)(c) (c) The district may implement the training programs under pars. (a) and (b) directly, or may contract under this section for the implementation of these training programs.

200.49(3) (3) Request for proposals. The executive director shall request proposals for prime contracts from bondable general contractors or construction contractors that are bona fide independent minority businesses. Each proposal submitted shall include all of the following conditions:

200.49(3)(a) (a) A goal that at least 25 percent of the total number of workers in all construction trades employed on the project will be minority group members.

200.49(3)(b) (b) A subcontracting plan that provides sufficient detail to enable the executive director to determine that the prime contractor has made or will make a good faith effort to award at least 20 percent of the total contract amount to bona fide independent minority business subcontractors.

200.49(4) (4) Determinations by executive director.

200.49(4)(a) (a) In determining whether a business is a bona fide minority business, the executive director shall take into consideration all of the following:

200.49(4)(a)1. 1. Whether the ownership and control of the business by minority group members is real, substantial and continuing.

200.49(4)(a)2. 2. Whether the minority owners enjoy the customary incidents of ownership and share the risks and profits to an extent commensurate with their ownership interests.

200.49(4)(a)3. 3. Whether the minority owners possess the power to make major decisions on policy and management and to direct the operations of the business on a day-to-day basis.

200.49(4)(a)4. 4. Whether there is any formal or informal restriction, including any provision of the bylaws, partnership agreement, joint venture agreement or corporate charter of the business, that provides for cumulative voting rights or other method of preventing minority owners from making decisions without the cooperation or vote of any nonminority owner.

200.49(4)(a)5. 5. Whether the securities constituting ownership of a corporation claiming to be a minority business are held directly by minority group members. No security held in trust or by a guardian for a child may be considered to be held directly by a minority group member.

200.49(4)(a)6. 6. Whether the contribution of capital or expertise by a minority owner of the business for the purpose of acquiring an interest in the business is real and substantial. If a contribution consists only of a promise to contribute capital or a note payable to the business or a nonminority owner, or mere participation as an employee of the business, the executive director shall not consider it a real and substantial contribution.

200.49(4)(a)7. 7. Whether nonminority owners of the business are disproportionately responsible for the operation of the business.

200.49(4)(a)8. 8. If the minority owners contract with another person for the management of the business, whether the ultimate power to hire and discharge managers rests with the minority owners or with the person with whom the minority owners contract.

200.49(4)(b) (b) In determining whether a business is independent, the executive director shall consider all relevant factors, including the date the business was established, the adequacy of its resources for the work it is expected to perform under the contract and the degree to which financial, equipment leasing and other relationships with nonminority businesses vary from customary industry practices. Recognition of a business as a separate entity for a tax or corporate purpose is not necessarily sufficient to prove that a business is independent.