1997 Wisconsin Act 237

237,612 Section 612 . 779.14 (1m) (title) of the statutes is created to read:

779.14 (1m) (title) Payment and performance assurance requirements.

237,613 Section 613 . 779.14 (1m) (a) of the statutes, as affected by 1997 Wisconsin Acts 27 and 39, is renumbered 779.14 (1e) (a) and amended to read:

779.14 (1e) (a) All contracts with the state involving $2,500 or more and all other contracts involving $500 $10,000 or more for the performance of labor or furnishing materials when the same pertains to any public improvement or public work shall contain a provision for the payment by the prime contractor of all claims for labor performed and materials furnished, used or consumed in making the public improvement or performing the public work, including, without limitation because of enumeration, fuel, lumber, building materials, machinery, vehicles, tractors, equipment, fixtures, apparatus, tools, appliances, supplies, electric energy, gasoline, motor oil, lubricating oil, greases, state imposed taxes, premiums for worker's compensation insurance and contributions for unemployment insurance.

237,614 Section 614 . 779.14 (1m) (b) 1. of the statutes, as affected by 1997 Wisconsin Act 27, is repealed.

237,615 Section 615 . 779.14 (1m) (b) 1m. of the statutes, as created by 1997 Wisconsin Act 27, is renumbered 779.14 (1m) (f) and amended to read:

779.14 (1m) (f) (title) Direct purchase contracts. The bonding requirement under subd. 1. does Paragraphs (c) and (d) do not apply to a contract for the direct purchase of materials by the state or by a local unit of government.

237,616 Section 616 . 779.14 (1m) (b) 2. of the statutes is renumbered 779.14 (1m) (e) 2., and 779.14 (1m) (e) 2. (intro.) and b., as renumbered, are amended to read:

779.14 (1m) (e) 2. (intro.) The A bond required under par. (c) or (d) shall carry a penalty of not less than the contract price, and shall be conditioned for all of the following:

b. The payment to every person, including every subcontractor or supplier, of all claims that are entitled to payment for labor performed and materials furnished for the purpose of making the public improvement or performing the public work as provided in the contract and this subsection sub. (1e) (a).

237,617 Section 617 . 779.14 (1m) (b) 3. of the statutes is renumbered 779.14 (1m) (e) 3. and amended to read:

779.14 (1m) (e) 3. The A bond required under par. (c) shall be approved for the state by the state official authorized to enter the contract,. A bond required under par. (d) shall be approved for a county by its corporation counsel, for a city by its mayor, for a village by its president, for a town by its chairperson, for a school district by its president and for any other public board or body by the presiding officer thereof.

237,618 Section 618 . 779.14 (1m) (b) 4. of the statutes is renumbered 779.14 (1m) (e) 4. and amended to read:

779.14 (1m) (e) 4. No assignment, modification or change of the contract, change in the work covered thereby or extension of time for the completion of the contract may release the sureties on the a bond required under par. (c) or (d).

237,619 Section 619 . 779.14 (1m) (b) 5. of the statutes is renumbered 779.14 (1m) (e) 5. and amended to read:

779.14 (1m) (e) 5. Neither the invitation for bids nor the person having power to approve the prime contractor's bond may require that the a bond required under par. (c) or (d) be furnished by a specified surety company or through a specified agent or broker.

237,620 Section 620 . 779.14 (1m) (c) and (d) of the statutes are created to read:

779.14 (1m) (c) State contracts. The following requirements apply to contracts with the state for the performance of labor or furnishing materials for a public improvement or public work:

1. In the case of a contract with a contract price exceeding $10,000, as indexed under sub. (1s), but not exceeding $100,000, as indexed under sub. (1s):

a. The contract shall include a provision which allows the state to make direct payment to subcontractors or to pay the prime contractor with checks that are made payable to the prime contractor and to one or more subcontractors. This subd. 1. a. does not apply to any contract entered into by the state under authority granted under chs. 84, 85 and 86. This subd. 1. a. also does not apply to any contract with a town, city, village, county or school district for the construction, improvement, extension, repair, replacement or removal of a transportation facility, as defined under s. 84.185 (1) (d); bikeway, as defined under s. 84.60 (1) (a); bridge; parking lot or airport facility.

b. The contract shall comply with written standards established by the department of administration. Written standards established under this subd. 1. b. shall include criteria for determining whether the contract requires payment or performance assurances and, if so, what payment or performance assurances are required.

2. In the case of a contract with a contract price exceeding $100,000, as indexed under sub. (1s), but not exceeding $250,000, as indexed under sub. (1s):

a. The contract shall include a provision which allows the state to make direct payment to subcontractors or to pay the prime contractor with checks that are made payable to the prime contractor and to one or more subcontractors. This subd. 2. a. does not apply to any contract entered into by the state under authority granted under chs. 84, 85 and 86. This subd. 2. a. also does not apply to any contract with a town, city, village, county or school district for the construction, improvement, extension, repair, replacement or removal of a transportation facility, as defined under s. 84.185 (1) (d); bikeway, as defined under s. 84.60 (1) (a); bridge; parking lot or airport facility.

b. The contract shall require the prime contractor to provide a payment and performance bond meeting the requirements of par. (e), unless the department of administration allows the prime contractor to substitute a different payment assurance for the payment and performance bond. The department of administration may allow a prime contractor to substitute a different payment and performance assurance for the payment and performance bond only after the contract has been awarded and only if the substituted payment and performance assurance is for an amount at least equal to the contract price and is in the form of a bond, an irrevocable letter of credit or an escrow account acceptable to the department of administration. The department of administration shall establish written standards under this subd. 2. b. governing when a different payment and performance assurance may be substituted for a payment and performance bond under par. (e).

3. In the case of a contract with a contract price exceeding $250,000, as indexed under sub. (1s), the contract shall require the prime contractor to obtain a payment and performance bond meeting the requirements under par. (e).

(d) Local government contracts. The following requirements apply to contracts, other than contracts with the state, for the performance of labor or furnishing materials for a public improvement or public work:

1. In the case of a contract with a contract price exceeding $10,000, as indexed under sub. (1s), but not exceeding $50,000, as indexed under sub. (1s):

a. The contract shall include a provision which allows the governmental body that is authorized to enter into the contract to make direct payment to subcontractors or to pay the prime contractor with checks that are made payable to the prime contractor and to one or more subcontractors. This subd. 1. a. does not apply to any contract with a town, city, village, county or school district for the construction, improvement, extension, repair, replacement or removal of a transportation facility, as defined under s. 84.185 (1) (d); bikeway, as defined under s. 84.60 (1) (a); bridge; parking lot or airport facility.

b. The contract shall comply with written standards established by the public body authorized to enter into the contract. Written standards established under this subd. 1. b. shall include criteria for determining whether the contract requires payment or performance assurances and, if so, what payment or performance assurances are required.

2. In the case of a contract with a contract price exceeding $50,000, as indexed under sub. (1s), but not exceeding $100,000, as indexed under sub. (1s):

a. The contract shall include a provision which allows the governmental body that is authorized to enter into the contract to make direct payment to subcontractors or to pay the prime contractor with checks that are made payable to the prime contractor and to one or more subcontractors. This subd. 2. a. does not apply to any contract with a town, city, village, county or school district for the construction, improvement, extension, repair, replacement or removal of a transportation facility, as defined under s. 84.185 (1) (d); bikeway, as defined under s. 84.60 (1) (a); bridge; parking lot or airport facility.

b. The contract shall require the prime contractor to provide a payment and performance bond meeting the requirements of par. (e), unless the public body authorized to enter into the contract allows the prime contractor to substitute a different payment assurance for the payment and performance bond. The public body may allow a prime contractor to substitute a different payment and performance assurance for the payment and performance bond only if the substituted payment and performance assurance is for an amount at least equal to the contract price and is in the form of a bond, an irrevocable letter of credit or an escrow account acceptable to the public body. The public body shall establish written standards under this subd. 2. b. governing when a different payment and performance assurance may be substituted for a payment and performance bond under par. (e).

3. In the case of a contract with a contract price exceeding $100,000, as indexed under sub. (1s), the contract shall require the prime contractor to obtain a payment and performance bond meeting the requirements under par. (e).

237,621 Section 621 . 779.14 (1m) (e) (title) of the statutes is created to read:

779.14 (1m) (e) Bonding requirements.

237,622 Section 622 . 779.14 (1s) of the statutes is created to read:

779.14 (1s) Indexing of contract thresholds. If a dollar amount is to be indexed under this subsection, the department of workforce development shall adjust the dollar amount biennially, the first adjustment to be made not sooner than December 1, 1998. The adjustment shall be in proportion to any change in construction costs since the effective date of this subsection under this subsection, or the last adjustment whichever is later. No adjustment shall be made for a biennium, if the adjustment to be made would be less than 5%.

237,623 Section 623 . 779.14 (2) (title) of the statutes is created to read:

779.14 (2) (title) Actions on a performance and payment bond.

237,624 Section 624 . 779.14 (2) (a) 2. of the statutes is amended to read:

779.14 (2) (a) 2. Except as provided in subd. 3., failure of the prime contractor or a subcontractor of the prime contractor to comply with a contract, whether express or implied, with a subcontractor or supplier for the performance of labor or furnishing of materials for the purpose of making the public improvement or performing the public work that is the subject of the contract under sub. (1m) with the governmental entity.

237,625 Section 625 . 779.14 (2) (a) 3. of the statutes is amended to read:

779.14 (2) (a) 3. With respect to contracts entered into under s. 84.06 (2) for highway improvements, failure of the prime contractor to comply with a contract, whether express or implied, with a subcontractor or supplier of the prime contractor for the performance of labor or furnishing of materials for the purpose of making the highway improvement that is the subject of the contract under sub. (1m) with the governmental entity.

237,626 Section 626. 779.14 (2) (am) 2. c. of the statutes is amended to read:

779.14 (2) (am) 2. c. The subcontractor or supplier is listed in the list required to be maintained under sub. (1m) (b) 1. (1e) (b) or in a written contract, or in a document appended to a written contract, between a subcontractor or supplier and the prime contractor.

237,627 Section 627 . 779.14 (3) (title) of the statutes is created to read:

779.14 (3) (title) Actions by a county.

237,641 Section 641 . 788.01 of the statutes is amended to read:

788.01 Arbitration clauses in contracts enforceable. A provision in any written contract to settle by arbitration a controversy thereafter arising out of such contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract. This chapter shall not apply to contracts between employers and employes, or between employers and associations of employes, except as provided in s. 111.10, nor to agreements to arbitrate disputes under s. 101.143 (6s) or 230.44 (4) (bm).

237,670g Section 670g. 814.69 (2) of the statutes is repealed.

237,671 Section 671 . 859.07 (2) of the statutes is amended to read:

859.07 (2) If the decedent was at the time of death or at any time prior thereto a patient or inmate of any state or county hospital or institution or any person responsible for any obligation owing to the state or county under s. 46.03 (18), 46.10, 48.36, 301.03 (18), 301.12 or 938.36 or if the decedent or the spouse of the decedent ever received medical assistance under subch. IV of ch. 49, long-term community support services funded under s. 46.27 (7) or aid under s. 49.68, 49.683 or 49.685, the personal representative shall send notice in writing of the date set under s. 859.01 by registered or certified mail to the department of health and family services or the department of corrections, as applicable, and the county clerk of the applicable county not less than 30 days before the date set under s. 859.01, upon such blanks and containing such information as the applicable department or county clerk may provide. The applicable county is the county of residence, as defined in s. 49.001 (6).

237,672 Section 672 . 880.33 (2) (a) 3. of the statutes is amended to read:

880.33 (2) (a) 3. If the person is an adult who is indigent, the county of legal settlement shall be the county liable for any fees due the guardian ad litem and, if counsel was not appointed under s. 977.08, for any legal fees due the person's legal counsel. If the person is a minor, the person's parents or the county of legal settlement shall be liable for any fees due the guardian ad litem as provided in s. 48.235 (8).

237,673 Section 673 . 880.331 (8) of the statutes is amended to read:

880.331 (8) Compensation. On order of the court, the guardian ad litem appointed under this chapter shall be allowed reasonable compensation to be paid by the county of venue, unless the court otherwise directs or unless the guardian ad litem is appointed for a minor, in which case the compensation of the guardian ad litem shall be paid by the minor's parents or the county of venue as provided in s. 48.235 (8). If the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation paid to private attorneys under s. 977.08 (4m) (b).

237,677m Section 677m. 893.98 of the statutes is created to read:

893.98 Cessation of health care benefits notification. An action arising under s. 109.075 (3) is subject to the limitations under s. 109.075 (4) (d).

237,678j Section 678j. 895.515 (1) (b) of the statutes is amended to read:

895.515 (1) (b) “Institution of higher education" means a center or an institution within the University of Wisconsin System, a technical college or a private, nonprofit institution of higher education located in this state.

237,678m Section 678m. 895.56 of the statutes is created to read:

895.56 Liability exemption; handling of petroleum-contaminated soil under contract with the department of transportation. (1) In this section:

(a) “Person" means an individual, owner, operator, corporation, limited liability company, partnership, association, municipality, interstate agency, state agency, as defined in s. 1.12 (1) (b), or federal agency.

(b) “Petroleum-contaminated soil" means soil contaminated with material derived from petroleum, natural gas or asphalt deposits, including gasoline, diesel and heating fuels, liquified petroleum gases, lubricants, waxes, greases and petrochemicals.

(2) A person is immune from liability arising under s. 292.11 and from any liability for the removal or remedying of petroleum-contaminated soil or for damages resulting from the person's actions or omissions relating to petroleum-contaminated soil if all of the following apply:

(a) The acts or omissions by the person occurred while performing a contract entered into under s. 84.06 (2), including acts or omissions by any person who has a direct contractual relationship with the prime contractor, as defined in s. 779.01 (2) (d), under a contract entered into under s. 84.06 (2) to perform labor or furnish materials.

(b) In the course of performing a contract described in par. (a), petroleum-contaminated soil was encountered on the property on which the contracted activity is taking place, and the petroleum-contaminated soil cannot be avoided in performing the contract.

(c) The acts or omissions involving petroleum-contaminated soil on the property were required by reasonably precise specifications in the contract entered into under s. 84.06 (2), and the acts or omissions conformed to those specifications, or were otherwise directed by the department of transportation or by the department of natural resources.

(3) Subsection (2) does not apply to any person to whom any of the following applies:

(a) The person brought petroleum-contaminated soil onto the property or otherwise caused the initial contamination of the property with a hazardous substance, as defined in s. 292.01 (5).

(b) The person's act or omission constitutes gross negligence or involves reckless, wanton or intentional misconduct.

(c) The person fails to warn the department of transportation or the department of natural resources about the presence of petroleum-contaminated soil encountered at the site, if the petroleum-contaminated soil was reasonably known to the person but not to the department of transportation or to the department of natural resources.

(d) The person is under a previous or separate contract with a state agency, as defined in s. 1.12 (1) (b), solely to remove or remedy petroleum-contaminated soil or hazardous substances on the property.

(e) The person causes personal injury or wrongful death.

237,678p Section 678p. 895.65 (1) (b) 2. of the statutes is amended to read:

895.65 (1) (b) 2. A person who is, or whose immediate supervisor is, assigned to an executive salary group or university senior executive salary group under s. 20.923.

237,680 Section 680 . 938.21 (5) (b) of the statutes is amended to read:

938.21 (5) (b) An order relating to a juvenile held in custody outside of his or her home shall also describe any efforts that were made to permit the juvenile to remain at home and the services that are needed to ensure the juvenile's well-being, to enable the juvenile to return safely to his or her home and to involve the parents in planning for the juvenile.

237,681 Section 681 . 938.235 (8) of the statutes is renumbered 938.235 (8) (a) and amended to read:

938.235 (8) (a) On order of the court, the A guardian ad litem appointed under this chapter shall be allowed reasonable compensation to be paid by the county of venue. If compensated at a rate that the court determines is reasonable, except that, if the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation paid to private attorneys payable to a private attorney under s. 977.08 (4m) (b).

237,682 Section 682 . 938.235 (8) (b), (c), (d) and (e) of the statutes are created to read:

938.235 (8) (b) The court may order either or both of the parents of a juvenile for whom a guardian ad litem is appointed under this chapter to pay all or any part of the compensation of the guardian ad litem. In addition, upon motion by the guardian ad litem, the court may order either or both of the parents of the juvenile to pay the fee for an expert witness used by the guardian ad litem, if the guardian ad litem shows that the use of the expert is necessary to assist the guardian ad litem in performing his or her functions or duties under this chapter. If one or both parents are indigent or if the court determines that it would be unfair to a parent to require him or her to pay, the court may order the county of venue to pay the compensation and fees, in whole or in part. If the court orders the county of venue to pay because a parent is indigent, the court may also order either or both of the parents to reimburse the county, in whole or in part, for the payment.

(c) At any time before the final order in a proceeding in which a guardian ad litem is appointed for a juvenile under this chapter, the court may order a parent of the juvenile to place payments in an escrow account in an amount estimated to be sufficient to pay any compensation and fees payable under par. (b).

(d) If the court orders a parent to reimburse a county under par. (b), the court may order a separate judgment for the amount of the reimbursement in favor of the county and against the parent who is responsible for the reimbursement.

(e) The court may enforce its orders under this subsection by means of its contempt powers.

237,683 Section 683 . 938.27 (3) (a) 1m. of the statutes is created to read:

938.27 (3) (a) 1m. The court shall give a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) who is notified of a hearing under subd. 1. an opportunity to be heard at the hearing by permitting the foster parent, treatment foster parent or other physical custodian to make a written or oral statement during the hearing, or to submit a written statement prior to the hearing, relevant to the issues to be determined at the hearing. A foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) who receives a notice of a hearing under subd. 1. and an opportunity to be heard under this subdivision does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and opportunity to be heard.

237,684 Section 684 . 938.27 (3) (a) 2. of the statutes is amended to read:

938.27 (3) (a) 2. Failure to give notice under subd. 1. to a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) does not deprive the court of jurisdiction in the action or proceeding. If a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) is not given notice of a hearing under subd. 1. and if the court is required under this chapter to permit that person to make a written or oral statement at the hearing or to submit a written statement prior to the hearing and that person does not make or submit such statement, that person may request a rehearing on the matter during the pendency of an order resulting from the hearing. If the request is made, the court shall order a rehearing.