Chapter 200

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.

200.49(5) (5) Award of contract. For each contract to be awarded under this section, the executive director shall select from among all applicants the proposal that best meets the requirements under sub. (3), taking into consideration the cost of implementing the proposal. The district shall award contracts to the applicants selected by the executive director under this subsection.

200.49(6) (6) Review and implementation committee. The executive director may establish a committee to assist him or her in all of the following areas:

200.49(6)(a) (a) Reviewing proposals and selecting the prime contractors to which contracts will be awarded.

200.49(6)(b) (b) Developing the implementation plan that is required under sub. (7).

200.49(7) (7) Implementation plan required.

200.49(7)(a) (a) The executive director shall develop a plan for the expeditious implementation of the programs created under this section that does all of the following:

200.49(7)(a)1. 1. Provides for the training of minority group members in construction and construction-related trades and occupations.

200.49(7)(a)2. 2. Provides for management and technical assistance to minority group members in construction and construction-related businesses.

200.49(7)(a)3. 3. Provides other management services necessary to assist minority businesses in developing construction-related capabilities and opportunities for participation in construction projects.

200.49(7)(a)4. 4. Provides for the development of a program that enables minority participation in specific components of contracts awarded for the purpose of developing the technical capabilities of minority businesses.

200.49(7)(b) (b) The executive director shall submit the plan to the secretary of natural resources for review and comment. The secretary of natural resources shall provide the executive director with comments or recommendations for changes in the plan, if any, within 30 days after the plan is submitted. No contracts may be awarded under sub. (5) until 30 days after the date the plan is submitted to the secretary of natural resources or until the date the executive director receives the secretary’s comments or recommendations, whichever is earlier.

200.49 History History: 1985 a. 29; 1987 a. 27; 1991 a. 39; 1993 a. 112; 1995 a. 227; 1999 a. 150 s. 592; Stats. 1999 s. 200.49; 2011 a. 32.

200.51 200.51 Commission employees.

200.51(1) (1) General powers of the commission. The commission may appoint or employ professional or technical advisers and experts and other personnel the commission requires for the proper execution of its duties under this subchapter, fix their compensations and remove or discharge the employees at pleasure.

200.51(2) (2) Fixed period appointments. The commission may appoint or employ highly trained, experienced or skilled employees for fixed periods.

200.51(3) (3) Indemnity bonds. The commission may require any employee to provide an indemnity bond in an amount the commission finds appropriate for the proper performance of the employee’s duties. No law respecting civil service applies to the commission or to the commission’s employees.

200.51(4) (4) Retirement benefits. Any employee of the district hired on or after April 26, 1982, is eligible to participate in any compensation or benefit program in which employees of a sewerage commission of a 1st class city under ss. 62.60 to 62.27, 1979 stats., participated, and such program shall treat the employee as eligible to participate in such program. If an employee of the district is receiving retirement benefits from such a program at the time of employment by the district, such employee is not eligible to participate in the program unless the employee elects to suspend his or her retirement benefit payments during his or her employment by the district.

200.51 History History: 1981 c. 282, 391; 1985 a. 175; 1999 a. 150 s. 593; Stats. 1999 s. 200.51.

200.53 200.53 Capital budget.

200.53(1) (1) Annual adoption. Annually on or before September 1, the commission shall adopt a capital budget for the benefit of the district, setting forth the anticipated revenues and expenditures for the ensuing fiscal year.

200.53(2) (2) Capital transfers. During the budget year the commission may, with the concurrence of two-thirds of its members, transfer amounts from one capital account to another if it finds that the funds are not necessary to meet outstanding obligations payable from the account. Nothing in this subsection impairs, or authorizes the commission to impair, any contractual obligation entered into by the commission or the district.

200.53 History History: 1981 c. 282, 391; 1999 a. 150 s. 594; Stats. 1999 s. 200.53.

200.55 200.55 Financing. The district may borrow money and issue and execute bonds, notes and other forms of indebtedness and may enter into agreements to secure its indebtedness in the manner specified in subs. (1) to (7):

200.55(1) (1) Revenue bonds and notes.

200.55(1)(a) (a) The district may issue bonds, notes or certificates for the purposes provided in s. 66.0621. Except as provided in pars. (b) to (fa), the procedure for issuance of these bonds, notes or certificates is as specified in s. 66.0621.

200.55(1)(b) (b) The commission has the powers and duties specified for a board or council in s. 66.0621. The district has the powers and duties specified for a municipality in s. 66.0621. If s. 66.0621 specifies that a board, council or municipality shall act by ordinance, the commission shall act by resolution.

200.55(1)(c) (c) District bonds issued under s. 66.0621 (4) (a) shall be executed by the chairperson and secretary of the commission rather than by a chief executive and clerk.

200.55(1)(d) (d)

200.55(1)(d)1. 1. Section 66.0621 (4) (a) 2. does not apply to district bonds. District bonds shall either mature:

200.55(1)(d)1.a. a. Serially, commencing not later than 3 years from the date of issue;

200.55(1)(d)1.b. b. In a specified term of years, if a sinking fund is created to pay the principal of these term bonds; or

200.55(1)(d)1.c. c. In any combination of serial and term bonds.

200.55(1)(d)2. 2. A sinking fund created under subd. 1. b. shall provide for the retirement of the term bonds beginning not later than 3 years from the date of issue, or for deposit of money in the sinking fund, beginning not later than 3 years from the date of issue, to pay the principal of the term bonds at maturity.

200.55(1)(d)3. 3. Notwithstanding s. 66.0621 (4) (a) 1., district bonds shall be made payable within 50 years from the date of the bonds, whether the bonds mature serially or within a specified term of years.

200.55(1)(e) (e) Notwithstanding s. 66.0621 (4) (c):

200.55(1)(e)1. 1. The commission may fix the proportion of revenues needed for operation and maintenance of the sewerage system and the proportion of revenues to be set aside as a depreciation fund.

200.55(1)(e)2. 2. The commission shall by resolution determine the proportion of revenues to be set aside for payment of principal and interest on the bonds as accurately as possible in advance. The commission may recompute the proportion of revenues set aside under this paragraph at any time, subject to the contract rights vested in holders of revenue obligations secured by the revenues.

200.55(1)(f) (f) Deeds or mortgages that secure principal and interest of bonds under s. 66.0621 shall be executed by the commission chairperson and secretary rather than by a chief executive and clerk.

200.55(1)(fa) (fa) Notwithstanding any contrary provision of s. 66.0621, the district may issue bond anticipation notes under s. 66.0621 (4) (L) in the form of commercial paper. If the district issues such commercial paper, the district may borrow to pay the interest on such paper, may obtain credit and liquidity facilities, and may delegate authority to any person to sell, execute, determine the interest rates, maturities, and amounts of such paper and to conduct the issuance of such paper as provided by the commission in the resolution under s. 66.0621 (4) (L) authorizing the issuance. Such issuance under a single resolution shall be deemed a single issue of securities issued as of the date of the sale of the first such paper and not as a series of refundings. A resolution authorizing the issuance of commercial paper under this paragraph and any taxes levied or any pledge made on such issuance is irrevocable as specified in the authorizing resolution.

200.55(1m) (1m) Investment of funds. Notwithstanding any of the limits or restrictions in ss. 66.0621 (4) (d) and (f), 66.0811 (2), and 67.11 (2) on the debt instruments in which the district or commission may invest any of its funds that are not immediately needed, the district may invest any such funds in a debt instrument listed under s. 66.0603 (1m).

200.55(2) (2) General obligation bonds. The commission may issue bonds or notes of the district for the purposes and in the manner provided in ch. 67. The purposes for which the commission may issue bonds or notes shall be construed to include financing the cost of planning and designing any part of the sewerage system and the cost of issuing the bonds or notes. Notwithstanding s. 67.08 (2), the commission may sell bonds or notes of the district issued under ch. 67 at public or private sale. If the commission authorizes the private sale of bonds or notes, the commission shall specify in its minutes the reasons for its decision to authorize private rather than public sale.

200.55(3) (3) Marketing revenue bonds. To enhance the marketability of district bonds or notes issued under s. 66.0621, the commission may:

200.55(3)(a) (a) Pledge to the issue unencumbered amounts to be received by the district as service charges.

200.55(3)(b) (b) Establish in the district’s treasury a fund in a determinable amount not exceeding the principal amount of the issue, to be built up and maintained until the issue is paid or utilized as otherwise provided in the resolution or ordinance establishing the fund. The commission shall designate a fund established under this paragraph as a debt service fund for the particular issue. Any surplus in the debt service fund upon its termination shall be transferred to the general fund of the district treasury. The source of the debt service fund shall be one or more appropriations from the general fund of the district treasury, a direct, irrepealable, annual, general tax, a sales tax or a borrowing under sub. (2). The unfunded portion of the debt service fund is a debt of the district and shall be included in determining its debt limit under article XI, section 3, of the constitution.

200.55(3)(c) (c) Levy a direct, irrepealable, annual, general tax in an amount sufficient to provide for the payment of all the principal and interest on the issue as it matures. The amount of the levy entered on the tax roll and collected each year shall be reduced by the amount in the special redemption fund provided under s. 66.0621 or in any similar fund that is available for payment of principal and interest on the issue during the ensuing year. The portion of the principal of the issue not paid or provided for is a debt of the district and shall be included in determining its debt limit under article XI, section 3, of the constitution.

200.55(4) (4) Bond anticipation notes.

200.55(4)(a) (a) If the commission authorizes the issuance of bonds under ch. 67 it may, prior to the issuance of the bonds and in anticipation of their sale, authorize by resolution an issue of bond anticipation notes of the district in an aggregate principal amount not in excess of the authorized principal amount of the bonds. The resolution shall be adopted by two-thirds of the members of the commission and shall state that all conditions precedent to the authorization of the bonds have been complied with and that the notes are issued for the purposes for which bonds are authorized to be issued. The resolution shall pledge to the payment of the principal of and interest on the notes the proceeds of the sale of the bonds in anticipation of the sale of which the notes were issued. The resolution may provide, in addition to or in place of the pledge of bond proceeds, for the levy of a direct, annual, irrepealable tax upon all of the taxable property of the district in an amount sufficient to pay the interest on the notes as the interest falls due and to pay and discharge the principal of the notes at maturity.

200.55(4)(b) (b) No note may be issued under this subsection unless the commission’s treasurer first certifies to the commission that contracts with respect to improvements are to be let and that the proceeds of the notes are required for the payment of the contracts.

200.55(4)(c) (c) Notes issued under this subsection shall be sold at public or private sale as determined by the resolution authorizing issuance. Notes issued under this subsection shall mature within 3 years of the date of issuance and shall be executed in the same manner as are district bonds. If the commission authorizes the private sale of notes, the commission shall specify in its minutes the reasons for its decision to authorize private rather than public sale. The notes shall state on their face that they are issued on behalf of the district and that they are payable from proceeds of bonds issued under ch. 67 or from a tax upon all of the taxable property in the district. The notes are not a general obligation of the district, except to the extent that a tax has been levied under par. (a).