[Ord. No. 2804, Added, 1-2-2019]
The ordinance codified in this chapter shall be known and may
be referenced as the "Utility Facilities in Public Rights-of-Way Ordinance."
[Ord. No. 2804, Added, 1-2-2019]
The purpose of this chapter is to:
1.
Permit
and manage reasonable access to the public rights-of-way of the City
for utility services purposes and conserve the limited physical capacity,
integrity, and longevity of those public rights-of-way held in trust
by the City consistent with applicable state and federal law;
2.
Secure
fair and reasonable compensation to the City and its residents, who
have invested substantial public funds to acquire, build, and maintain
the public rights-of-way and City-owned structures and improvements
therein, for permitting use of the public rights-of-way by persons
who generate revenue by placing utility facilities therein and charging
residents, businesses, visitors, and others for services delivered
by those facilities;
3.
Assure
that all persons owning or operating utility facilities or providing
utility services within the City shall register and comply with the
ordinances, rules, policies, and other regulations of the City, as
well as with applicable provisions of state and federal law;
4.
Assure
that the City can continue to fairly and responsibly protect the public
health, safety, and welfare of its residents;
5.
Encourage
the provision of advanced and competitive utility services on the
widest possible basis to the residents, businesses and visitors within
the City’s territorial and jurisdictional boundaries, consistent
with applicable provisions of state and federal law.
[Ord. No. 2804, Added, 1-2-2019]
1.
The
City has jurisdiction and exercises regulatory management over all
public rights-of-way within the City under authority of the Oregon
Constitution, the City Charter, and state law.
2.
The
City has jurisdiction and exercises regulatory management over each
public right-of-way, whether the City has a fee, easement, or any
other legal interest in such public right-of-way, and whether the
legal interest in the public right-of-way was obtained by grant, dedication,
prescription, reservation, condemnation, annexation, foreclosure,
or any other means.
3.
The
exercise of jurisdiction and regulatory management over a public right-of-way
by the City is not official acceptance of such public right-of-way,
and does not obligate the City to maintain or repair any part of such
right-of-way.
4.
The
provisions of this chapter are subject to and will be applied consistent
with applicable state and federal laws, rules and regulations, and
shall be interpreted to be consistent with such laws, rules, and regulations.
Nothing in this chapter (a) is intended to preempt any state or federal
law, rule, or regulation; and (b) shall be interpreted, deemed, or
applied in a manner that authorizes or requires the City, its council,
commissions, boards, officials, directors, managers, employees, agents,
contractors, or volunteers to preempt or violate applicable state
or federal laws, rules, or regulations.
[Ord. No. 2804, Added, 1-2-2019]
1.
The
fees and costs provided for in this chapter, and any compensation
charged and paid for the use of the public rights-of-way provided
for in this chapter, are separate from, and in addition to, any and
all other federal, state, county and/or City charges, including without
limitation any permit fee or any other generally applicable fee, tax,
or charge on the business, occupation, property, or income, as may
be levied, imposed, or due from a utility service provider, its customers
or subscribers, or on account of the lease, sale, delivery, or transmission
of utility services.
2.
The City has determined that any fee, cost, or other charge provided for by this chapter is not subject to the property tax limitations of Article XI, Sections 11 and 11b of the Oregon Constitution. These fees or taxes are not imposed on property or property owners.
3.
The
fees, costs, and other charges provided for in this chapter are subject
to applicable federal and state laws.
[Ord. No. 2804, Added, 1-2-2019]
For the purpose of this chapter, the following words, terms,
phrases, and their derivations shall have the meanings given below
unless the context indicates otherwise. When not inconsistent with
the context, words used in the present tense include the future tense,
words in the plural number include the singular number, and words
in the singular include the plural number. The word "shall" is always
mandatory and not merely directory.
Is to be defined consistent with of 47 U.S.C. Section 522(6),
as may be amended or superseded, and means the one-way transmission
to subscribers of (a) video programming, or (b) other programming
service; and subscriber interaction, if any, which is required for
the selection or use of such video programming or other programming
service.
Means the City of Lake Oswego, Oregon, a municipal corporation,
and its governing authority. In addition, the City may refer to all
the territory within its corporate boundaries and as such may change
from time to time.
Means the City Council of the City of Lake Oswego.
Means City or publicly owned structures or equipment located
within the public rights-ofway or public easement used for governmental
purposes including, but not limited to, fiber-optic cable, street
lights, traffic signals, sanitary sewer, storm sewer, or water infrastructure
such as related pipes, manholes, catch basins, wires, conduit, valves,
vaults, and appurtenances.
Means any service provided for the purpose of transmission
of information including, but not limited to, voice, video or data,
without regard to the transmission protocol employed, whether or not
the transmission medium is owned by the provider itself. Communications
services includes all forms of telephone services and voice, video,
data, or information transport, but does not include: (a) cable service;
(b) open video system service, as defined in 47 CFR Section 76; (c)
over-the-air radio or television broadcasting to the public-at-large
from facilities licensed by the Federal Communications Commission
or any successor thereto; (d) public communications systems; and (e)
direct-to-home satellite service within the meaning of Section 602
of the Telecommunications Act.
Means the authorization granted by the City to a utility
services operator pursuant to this chapter.
Means and includes any individual, firm, sole proprietorship,
corporation, company, partnership, copartnership, joint-stock company,
trust, limited liability company, association, local service district,
governmental entity, or other organization, including any natural
person or any other legal entity.
Means any system owned or operated by a government entity
or entities that are primarily for use for internal communications
or communications with other government entities, and includes services
provided by the state of Oregon pursuant to ORS Sections 190.240 and
283.140. A public communications system does not include any system
used for sale or resale, including trade, barter, or other exchange
of value, of communications services or capacity on the system, directly
or indirectly, to any person.
Means and includes, but is not limited to, the space in,
upon, above, along, across, over, or under the public streets, roads,
highways, lanes, courts, ways, alleys, boulevards, bridges, trails,
paths, sidewalks, bicycle lanes, and all other public ways or areas,
including the subsurface under and air space over these areas, but
does not include parks, parkland, open space tracts, water quality
tracts, or other City-owned property. This definition applies only
to the extent of the City’s right, title, interest and authority
to grant a license to occupy and use such areas for utility facilities.
Means the space in, upon, above, along, across, over, or
under an easement for the construction, reconstruction, operation,
maintenance, inspection and repair of utility facilities. A public
utility easement does not include an easement solely for the construction,
reconstruction, operation, maintenance, inspection, and/or repair
of City facilities, or where the proposed use by the utility services
operator is inconsistent with the terms of any easement, right-of-way,
or other legal right for use or occupancy granted to the City.
Means the state of Oregon.
Means the entire width between the right-of-way lines of
a local street, collector, or arterial capable of providing the principal
means of access to abutting property.
Means any physical component of a utility service system,
including but not limited to the poles, pipes, mainlines, conduits,
ducts, cables, wires, transmitters, plants, equipment, and other facilities,
located within, on, along, under, or above the public rights-of-way,
any portion of which is used or designed to be used to deliver, transmit,
or otherwise provide utility service.
Means the provision, by means of utility facilities located
within, on, along, under, or above the public rights-of-way, whether
or not such facilities are owned by the utility service provider,
of electricity, natural gas, communications services, cable services,
water, sewer, or storm sewer to or from customers within the corporate
boundaries of the City, or the transmission of any of these services
through the City whether or not customers within the City are served
by those transmissions. "Utility service" shall not include the provision
of such services by the City of Lake Oswego.
Means any person who owns, places, operates, or maintains
a utility facility within the City, except for the City of Lake Oswego.
Means the construction, demolition, installation, replacement,
repair, maintenance, or relocation of any utility facility, including
but not limited to any excavation and restoration required in association
with such construction, demolition, installation, replacement, repair,
maintenance, or relocation.
[Ord. No. 2804, Added, 1-2-2019]
1.
Registration
Required. Every person that owns utility facilities in the City, and
every person that uses utility facilities in the City to provide utility
service, regardless of whether the person owns the utility facilities
used to provide the utility services or not, and regardless of whether
customers within the City are served by those facilities or not, shall
register with the City prior to deploying any utility facilities within
the public rights-of-way or providing any utility services. Every
operator within the City as of the effective date of this chapter
shall register within 45 days of the effective date of this chapter.
2.
Annual Registration. After registering with the City under subsection (1) of this section, the registrant shall, by December 31 of each year, file with the City a new registration form if it intends to deploy or operate utility facilities or provide utility service at any time in the following calendar year.
3.
Registration
Application. The registration shall be on an application form provided
by the City and shall be accompanied by any additional documents required
by the City to identify the registrant and its legal status, describe
the type of utility services provided or to be provided by the registrant,
and list the facilities over which the utility services will be provided.
4.
Registration
Fee. Each application for registration shall be accompanied by a nonrefundable
registration fee in an amount to be determined by resolution of the
City Council enough to fully recover all the City’s costs of
administering the registration program.
[Ord. No. 2804, Added, 1-2-2019]
1.
Every
person who owns, controls, or uses utility facilities in the public
rights-of-way must have at all times a license from the City. Every
person shall obtain a license prior to conducting any work in the
public rights-of-way, placing any utility facilities in the public
rights-of-way, or using any utility facilities in the rights-of-way.
The license requirement shall not apply to those utility operators
with an unexpired franchise agreement in effect and in good standing
as of the effective date of this chapter for the remainder of the
term of that franchise agreement.
2.
Every
person that owns, controls, or uses utility facilities in the public
rights-of-way as of the effective date of this chapter shall apply
for a license from the City within 45 days of the later of (a) the
effective date of this chapter, or (b) the expiration of a valid franchise
from the City.
3.
License
Application. The license application shall be on a form provided by
the City, and shall be accompanied by any additional documents required
by the City to identify the applicant, its legal status, including
its authorization to do business in the state of Oregon, a description
of the type of utility service provided or to be provided by the applicant,
and the facilities over which the utility service will be provided,
and other information that the City determines is necessary to determine
the applicant’s ability to comply with the terms of this chapter.
Subject to any restrictions in state or federal law, the City Engineer
may from time to time and without further authorization from the City
Council publish or otherwise make publicly available any additional
or different application requirements as the City Engineer finds necessary
or appropriate for processing applications, which shall be effective
immediately upon publication.
4.
License
Application Fee. The application shall be accompanied by a nonrefundable
application fee set by resolution of the City Council in an amount
sufficient to fully recover all of the City’s costs related
to processing the application for the license.
5.
Determination
by City. The City shall issue, within a reasonable time after having
received a duly filed application, a written determination granting
or denying the license in whole or in part. If the license is denied,
the written determination shall include the reasons for denial. The
license shall be evaluated based upon the provisions of this chapter,
the continuing capacity of the public rights-of-way to accommodate
the applicant’s proposed utility facilities and the applicable
federal, state and local laws, rules, regulations and policies.
6.
Rights
Granted.
a.
A
license granted under this chapter authorizes and permits the licensee
to construct, place, maintain, and operate utility facilities in the
public rights-of-way for the term of the license, subject to the provisions
of City code, rules, regulations and polices, and other applicable
provisions of state and federal law.
b.
Each
license granted under this chapter authorizes only those utility facilities
or utility services applied for by the applicant and approved by the
City. The City may approve the provision of multiple services in one
license.
c.
A
license granted under this chapter shall be personal to the licensee
and may not be assigned, sublicensed, or transferred, in whole or
in part, except as permitted by this chapter.
d.
A
license granted under this chapter does not grant, convey, create,
or vest in a licensee any real property interest in land, including
any fee, leasehold interest, or easement, and does not convey equitable
or legal title in the public rights-of-way. The license is subject
to all recorded deeds, easements, dedications, conditions, covenants,
restrictions, encumbrances and claims of title of record that may
affect the public rightsof-way. A license granted under this chapter
is not a warranty of title. Licensee expressly acknowledges and agrees
to enter on to and use the licensed public rights-of-way in its "as-is
and with all faults" condition. The City makes no representations
or warranties whatsoever, whether express or implied, as to the public
rightsof-way’s condition or suitability for the licensee’s
use. By its acceptance of the license, the licensee expressly acknowledges
and agrees that neither the City nor its agents have made, and the
City expressly disclaims, any representations or warranties whatsoever,
whether express or implied, with respect to the physical, structural
or environmental condition of the public rights-of-way, and the present
or future suitability of the public rights-of-way for the licensee’s
use.
e.
The
issuance of a license does not constitute a waiver or bar to the City’s
exercise of any governmental right or power, including without limitation
the City’s police powers and regulatory powers, regardless of
whether such powers existed before or after the license is issued.
7.
Term of License. Subject to the termination provisions in subsection (13) of this section, the license granted pursuant to this chapter will remain in effect for a term of five years.
8.
License
Nonexclusive. No license granted pursuant to this section shall confer
any exclusive right, privilege, license, or franchise to occupy or
use the public rights-of-way for delivery of utility services or any
other purpose. The City expressly reserves the right to grant licenses,
franchises, or other rights to other persons, as well as the City’s
right to use the public rights-of-way, for similar or different purposes.
9.
Reservation
of City Rights. The City reserves all rights, title, and interest
in its public rights-of-way. A license granted under this chapter
does not prevent the City from exercising any of its rights, including
without limitation grading, paving, repairing, or altering any public
rights-of-way, constructing, laying down, repairing, relocating, or
removing City facilities or establishing any other public work, utility,
or improvement of any kind, including repairs, replacement, or removal
of any City facilities.
a.
If
any of licensee’s utility facilities interfere with the construction,
repair, replacement, alteration or removal of any public rights-of-way,
public work, City utility, City improvement, improvement that implements
a City urban renewal agency project, or City facility, except those
providing utility services in competition with a licensee, licensee’s
facilities shall be removed or relocated as provided in this chapter,
in a manner acceptable to the City and consistent with industry standard
engineering and safety codes.
10.
Multiple
Services.
a.
An operator that provides, transmits, or allows the provision or
transmission of utility services and other services over its facilities
is subject to the license and public right-of-way fee requirements
of this chapter for the portion of the facilities and extent of utility
services delivered over those facilities.
b.
An operator that provides or transmits more than one utility service
over its facilities is not required to obtain a separate license or
franchise for each utility service; provided, that it gives notice
to the City of each utility service provided or transmitted and pays
the applicable public rights-of-way fee for each utility service.
c.
An operator is not required to pay the license or public rights-of-way
fee owed to the City by a third party using a utility operator’s
facilities.
11.
Transfer
or Assignment. A licensee shall obtain the written consent of the
City prior to the transfer, sublicense, or assignment of a license,
which consent shall not unreasonably be withheld, unless the licensee
demonstrates to the City that state or federal law specifically prohibits
the City from requiring its prior written consent. A transfer, sublicense,
or assignment will only be authorized if the proposed transferee or
assignee is authorized under all applicable federal, state, and local
laws to own or operate the utility system and the transfer or assignment
is approved by all agencies or organizations required or authorized
under federal, state, and local to approve such transfer, sublicense,
or assignment.
a.
If a license is transferred, sublicensed, or assigned, the transferee,
sublicensee, or assignee shall become responsible for fulfilling all
the obligations under the license with respect to all facilities of
the licensee at the time of transfer, sublicensee, or assignment.
A transfer or assignment of a license does not extend the term of
the license. Without limiting any other rights the City may have to
condition its consent, the City may condition its consent on any such
transfer, sublicense, or assignment on the transferee, sublicensee,
or assignee’s written agreement to assume all licensee’s
obligations under the license.
b.
Notwithstanding anything in this section to the contrary, a licensee
may, by written notice to the City, assign all its rights under a
license to an entity that acquires all or substantially all the licensee’s
assets in the market in which the City is located.
12.
Renewal.
At least 90, but no more than 180, calendar days before the expiration
of a license granted under this section, a licensee seeking renewal
of its license shall submit a license application to the City, including
all information and fees required in this chapter as may be supplemented
by the City Engineer. The City shall review the application and grant
or deny the license within 60 days after the application is duly filed.
If the City determines that the licensee is in violation of the terms
of this chapter at the time it submits its application, the City may
require, by a written notice, that the licensee cure the violation
or submit a detailed plan to cure the violation within a reasonable
period of time, as determined by the City, before the City will consider
the application or grant the license.
13.
Termination.
a.
Revocation or Termination of a License. The City Council may terminate
or revoke the license granted pursuant to this chapter for any of
the following reasons:
i.
Violation of any of the provisions of this chapter;
ii.
Violation of any provision of the license;
iii.
Misrepresentation in a license application;
iv.
Failure to pay taxes, compensation, fees, or costs due the City after
final determination of the taxes, compensation, fees, or costs;
v.
Failure to restore the public rights-of-way after construction as
required by this chapter or other applicable state and local laws,
ordinances, rules, and regulations;
vi.
Failure to comply with technical, safety, and engineering standards
related to work in the public rights-of-way; or
vii.
Failure to obtain or maintain any and all licenses, permits, certifications,
and other authorizations required by state or federal law for the
placement, maintenance, or operation of the utility facilities.
b.
Standards for Revocation or Termination. In determining whether termination,
revocation, or some other sanction is appropriate, the following factors
shall be considered:
14.
Notice
and Cure. The City shall give the operator written notice of any apparent
violations before revoking or terminating a license. The notice shall
include a statement of the nature and general facts of the violation
or noncompliance and provide a reasonable time of not to exceed 30
days for the operator to demonstrate that the operator has remained
in compliance, that the utility operator has cured or is in the process
of curing any violation or noncompliance, or that it would be in the
public interest to impose a penalty or sanction less than termination
or revocation. If the operator is in the process of curing a violation
or noncompliance, the operator must demonstrate that it acted promptly
and continues to actively work toward compliance. If the operator
does not respond within the reasonable time stated in the notice,
the City Engineer shall refer the matter to the City Council, which
shall provide a duly noticed public hearing to determine whether the
license shall be terminated or revoked.
15.
Franchise
Agreements. If the public interest warrants, as determined by the
City in its sole and absolute discretion, the City and operator may
enter into a written franchise agreement that includes terms that
clarify, enhance, expand, waive, or vary the provisions of this chapter,
consistent with applicable state and federal law. The franchise may
conflict with the terms of this chapter with the review and approval
of the City Council. The franchise shall be subject to the provisions
of this chapter to the extent such provisions are not in conflict
with any such franchise. In the event of a conflict between the express
provisions of a franchise and this chapter, the franchise shall control.
[Ord. No. 2804, Added, 1-2-2019]
1.
City
Engineer’s Policies, Standards, Specifications, and Other Guidelines.
The City Council authorizes the City Engineer to develop, amend, and
publish or otherwise make publicly available any policies, standards,
specifications, and other guidelines for the location, design, and
management and operation of facilities in public rights-of-way subject
to this chapter. All such policies, standards, specifications, and
other guidelines (a) must be consistent, and not in conflict with,
the provisions of state, federal, and local law, which includes this
chapter; and (b) shall be effective upon their publication; provided,
however, that any applications submitted prior to publication shall
be subject to the policies, standards, specifications, and other guidelines
in effect when the submittal occurred.
2.
Preconstruction
Approval. Prior to the commencement of any construction, extension,
or relocation of any of licensee’s facilities upon, over, under,
or across any of the streets, highways, or other public rightsof-way
within the jurisdiction of the City, the licensee shall advise the
City’s Engineering Department in writing of the location and
shall obtain from the City Engineer written approval prior to commencement
of such work. In evaluating such request, the City Engineer may consider
whether the proposed facilities comply with any applicable law, which
includes without limitation any policies, standards, specifications,
or other guidelines adopted by the City Engineer pursuant to this
chapter. Not less than 48 hours before commencement of any work that
might affect City utilities, licensee shall contact the Oregon Utility
Notification Center for the purpose of utility location. The location
of all such facilities shall be at places approved by the City. All
work done by or for licensee shall be in compliance with the applicable
rules, regulations, ordinances, policies, guidelines, standards, specifications,
or orders of the City then in effect.
3.
Construction
Permits. No person shall perform any work on utility facilities within
the public rightsof-way without first obtaining all required permits.
The City shall not issue a permit for the construction, installation,
maintenance or repair of utility facilities unless the utility operator
of the facilities has registered and applied for and received the
license required by this chapter, or has a current franchise with
the City, and all applicable fees have been paid.
4.
Applications for Permits. Applications for permits to construct utility facilities shall be submitted upon forms to be provided by the City and shall comply with LOC § 42.04.110 and be accompanied by drawings, plans, and specifications in sufficient detail to demonstrate:
a.
That
the facilities will be constructed in accordance with all applicable
laws, codes, rules, and regulations.
b.
The
location and route of all utility facilities to be installed above
ground or on existing utility poles and, if the private utility operator
owns the existing utility poles, a comprehensive summary, including
ownership and structural condition, of any and all infrastructure
currently attached to the pole. Unless approved in writing by the
City Engineer, the construction of new utility poles is prohibited.
An existing utility pole that is damaged or failing may be repaired
or replaced with a new utility pole of substantially similar dimensions
and materials.
c.
The
location and route of all utility facilities on or in the public rights-of-way
to be located under the surface of the ground, including the line
and grade proposed for the burial at all points along the route that
are within the public rights-of-way. Applicant’s existing utility
facilities shall be differentiated on the plans from new construction.
A cross section shall be provided showing new or existing utility
facilities in relation to the street, curb, sidewalk, or other public
rights-of-way.
d.
The
construction methods to be employed for protection of existing structures,
fixtures, and facilities within or adjacent to the public rights-of-way,
and description of any improvements that applicant proposes to temporarily
or permanently remove or relocate.
5.
All
permit applications shall be accompanied by the verification of a
qualified and duly authorized representative of the applicant that
the drawings, plans and specifications submitted with the application
comply with applicable technical codes, rules, and regulations. Permit
applications shall be accompanied by a written construction schedule,
which shall include an estimated start date and a deadline for completion
of construction. The construction schedule is subject to approval
by the Engineering Department. Subject to any restrictions in state
or federal law, the City Engineer may from time to time and without
further authorization from the City Council publish or otherwise make
publicly available any additional or different application requirements
as the City Engineer finds necessary or appropriate for processing
applications, which shall be effective immediately upon publication.
6.
Prior
to issuance of a street-opening permit, the applicant shall pay a
permit fee in the amount determined by resolution of the City Council.
7.
If
satisfied that the application, plans, and documents submitted comply
with all requirements of this chapter, the Engineering Department
shall issue a permit authorizing construction of the utility facilities,
subject to such further conditions, restrictions or regulations affecting
the time, place and manner of performing the work as they may deem
necessary or appropriate (but only to the extent permitted by applicable
state and federal law).
8.
Except
in the case of an emergency that poses an imminent threat to public
health or safety and/or injury to persons or property, the permittee
shall notify the Engineering Department not less than two business
days in advance of any excavation or construction in the public rights-of-way.
9.
All
construction practices and activities shall be in accordance with
the permit and approved final plans and specifications for the utility
facilities. The Engineering Department and its representatives shall
be provided access to the work site and such further information as
they may require to ensure compliance with such requirements.
10.
All
construction practices and activities shall be in accordance with
the permit and approved final plans and specifications for the utility
facilities. The City and its representatives shall be provided access
to the work site and such further information as they may require
to ensure compliance with this requirement.
11.
All
work that does not comply with the permit, the approved or corrected
plans and specifications for the work, or the requirements of this
chapter (including any policies, standards, specifications, or other
guidelines adopted by the City Engineer pursuant to this chapter),
shall be removed or corrected at the sole expense of the permittee.
The City is authorized to issue stop work orders in order to assure
compliance.
12.
The
permittee shall promptly complete all construction activities in compliance
with all applicable laws and in a manner designed to avoid unnecessary
disruption and minimize unavoidable disruption of the City public
rights-of-way and other public and private property. All construction
work within the public rights-of-way, including without limitation
any restoration work, must be completed within 120 days of the date
the construction permit is issued unless the City Engineer has approved
an extension or an alternate schedule.
13.
Injury
to Persons or Property. An operator shall preserve and protect from
injury or damage other operators’ facilities in the public rights-of-way,
the public using the public rights-of-way and any adjoining property,
and take other necessary measures to protect persons and property,
including but not limited to buildings, walls, fences, trees, and
other facilities that may be subject to damage from the permitted
work. An operator shall (a) use suitable barricades, flags, flagging
attendants, lights, flares, and other measures as required for the
safety of all members of the general public; (b) comply with all applicable
Americans with Disabilities Act requirements; and (c) comply with
all the requirements of the Manual on Uniform Traffic Control Devices
(MUTCD).
14.
Restoration.
An operator shall be responsible for all injury to persons or damage
to public or private property resulting from its failure to properly
protect people and property and to carry out the work regardless of
whether the work is performed by an operator or performed by an independent
contractor performing the work on behalf of the operator.
a.
When an operator, or any person acting on its behalf, does any work
in or affecting any public rights-of-way, it shall, at its own expense,
promptly restore such ways or property to the same or better condition
as existed before the work was undertaken, in accordance with applicable
federal, state and local laws, codes, ordinances, rules, and regulations,
unless otherwise directed by the City.
b.
If weather or other conditions beyond the operator’s control
do not permit the complete restoration required by the City, the operator
shall temporarily restore the affected public rights-of-way or property.
Such temporary restoration shall be at the operator’s sole expense
and the operator shall promptly undertake and complete the required
permanent restoration when the weather or other conditions no longer
prevent such permanent restoration. Any corresponding modification
to the construction schedule shall be subject to approval by the City.
c.
If the operator fails to restore public rights-of-way or property
as required in this chapter, the City shall give the operator written
notice and provide a period of time not less than ten days and not
exceeding 30 days to restore the public rights-of-way or property.
If, after said notice, the operator fails to restore the public rights-of-way
or property as required in this chapter, the City may cause such restoration
to be made at the expense of the operator. In cases where the City
believes that an emergency or threat to public safety exists, it may
act without notice to and at the expense of the operator. Upon receipt
of an invoice from the City with reasonable supporting documentation
for the costs incurred, the operator shall reimburse the City within
30 days for the costs the City incurred.
15.
Inspection.
Every operator’s facilities shall be subject to the right of
periodic inspection by the City or its agents to determine compliance
with the provisions of this chapter and all other applicable state
and City laws, codes, ordinances, rules, and regulations. Every operator
shall reasonably cooperate with the City in permitting the inspection
of utility facilities in a timely manner after request by the City.
The operator shall perform all testing, or permit the City or its
agents to perform any testing at the operator’s expense, required
by the City to determine that the installation of the operator’s
facilities and the restoration of the public rights-ofway comply with
the terms of this chapter and applicable state and City laws, codes,
ordinances, rules, and regulations.
16.
Coordination
of Construction. All operators shall make a good faith effort to both
cooperate with and coordinate their construction schedules with those
of the City and other users of the public rights-of-way.
a.
Prior to January 1 of each year, operators shall provide the City
with a schedule of known proposed construction activities for that
year in, around, or that may affect the public rights-of-way and any
City facilities.
b.
At the City’s request, operators shall meet with the City annually,
or as determined by the City, to schedule and coordinate construction
in the public rights-of-way.
c.
All construction locations, activities, and schedules within the
public rights-of-way shall be coordinated as ordered by the City to
minimize public inconvenience, disruption, and damages to persons
and property.
[Ord. No. 2804, Added, 1-2-2019]
1.
Location
of Facilities. Unless otherwise agreed to in writing by the City,
whenever any existing electric utilities, cable facilities, or communications
facilities are located underground within a public right-ofway of
the City, an operator with permission to occupy the same public right-of-way
shall locate its facilities underground at its own expense.
a.
Whenever
all new or existing electric utilities, cable facilities or communication
facilities are located or relocated underground within a public right-of-way
of the City, an operator that currently occupies the same public right-of-way
must relocate its facilities underground concurrently with the other
affected utilities to minimize disruption of the public rights-of-way,
absent extraordinary circumstances or undue hardship as determined
by the City and consistent with applicable state and federal law.
b.
The
requirements in this section do not apply to antennas, pedestals,
cabinets, or other aboveground equipment of any utility provider.
2.
Interference
with the Public Rights-of-Way. No operator or other person may locate
or maintain facilities so as to interfere with the use of the public
rights-of-way by the City, by the general public, or by other persons
duly authorized to use or be present in or on the public rights-of-way.
All use of the public rightsof-way shall be consistent with City codes,
ordinances, rules, and regulations, which includes without limitation
any policies, standards, specifications, and other guidelines adopted
by the City Engineer pursuant to this chapter.
3.
Relocation
of Utility Facilities.
a.
When
requested to do so in writing by the City, an operator shall, at no
cost to the City, temporarily or permanently remove, relocate, change,
or alter the position of any utility facility within a public rightof-way,
including relocation of aerial facilities underground, except as such
facilities are not required to be located underground pursuant to
subsection (1)(b) of this section.
b.
Nothing
herein shall be deemed to preclude the operator from requesting reimbursement
or compensation from a third party, pursuant to applicable laws, regulations,
tariffs, or agreements. However, the operator shall timely comply
with the requirements of this section regardless of whether it has
requested or received such reimbursement or compensation.
c.
The
City shall coordinate the schedule for relocation of utility facilities
and, based on such effort, shall provide written notice of the time
by which the operator must remove, relocate, change, alter, or underground
its facilities. If an operator fails to remove, relocate, change,
alter or underground any utility facility as requested by the City
and by the date established by the City, the operator shall pay all
costs incurred by the City due to such failure, including but not
limited to costs related to project delays, and the City may cause,
using qualified workers in accordance with applicable state and federal
laws and regulations, the utility facility to be removed, relocated,
changed, altered or undergrounded at the operator’s sole expense.
Upon receipt of an invoice from the City with reasonable supporting
documentation, the operator shall reimburse the City within 30 days
for the costs the City incurred.
4.
Removal
of Unauthorized Facilities.
a.
Unless
otherwise agreed to in writing by the City, within 30 days following
written notice from the City or such other time agreed to in writing,
an operator and any other person that owns, controls or maintains
any abandoned or unauthorized utility facility within a public right-of-way
shall, at its own expense, remove the facility and restore the public
right-of-way to City standards.
b.
A
utility system or facility is unauthorized under any of the following
circumstances:
i.
The utility facility is outside the scope of authority granted by
the City under the license, franchise or other written agreement.
This includes facilities that were never licensed or franchised and
facilities that were once licensed or franchised but for which the
license or franchise has expired or been terminated. This does not
include any facility for which the City has provided written authorization
for abandonment in place.
ii.
The facility has been abandoned and the City has not provided written
authorization for abandonment in place. A facility is abandoned if
it is not in use and is not planned for further use. A facility will
be presumed abandoned if it is not used for a period of one year.
An operator may attempt to overcome this presumption by presenting
plans for future use of the facility to the City, which will determine
application of the presumption in its sole discretion.
iii.
The utility facility is improperly constructed or installed or is
in a location not permitted by the construction permit, license, franchise,
or this chapter.
iv.
The operator is in violation of a material provision of this chapter
and fails to cure such violation within 30 days of the City sending
written notice of such violation, unless the City extends such time
period in writing.
5.
Removal
by City.
a.
The
City retains the right and privilege to cut or move the facilities
of any operator or similar entity located within the public rights-of-way
of the City, without notice, as the City may determine to be necessary,
appropriate or useful in response to a public health or safety emergency.
The City will use qualified personnel or contractors consistent with
applicable state and federal safety laws and regulations to the extent
reasonably practicable without impeding the City’s response
to the emergency.
b.
If
the operator fails to remove any facility when required to do so under
this chapter, the City may remove the facility using qualified personnel
or contractors consistent with applicable state and federal safety
laws and regulations, and the operator shall be responsible for paying
the full cost of the removal and any administrative costs incurred
by the City in removing the facility and obtaining reimbursement.
Upon receipt of an invoice from the City with reasonable supporting
documentation, the operator shall reimburse the City for the costs
the City incurred within 30 days. The obligation to remove shall survive
the termination of the license or franchise.
c.
The
City is not liable to any operator for any damage to utility facilities,
or for any consequential losses resulting directly or indirectly from
any damage caused by the City’s actions, or its contractor,
in removing, relocating, altering, or undergrounding the facilities,
unless such damage arises directly from the City’s sole active
negligence or willful misconduct.
6.
Engineering
Designs and Plans. The operator shall provide the City with as-built
plans or system maps of their facilities, upon request, for the purpose
of design of other City infrastructure or to confirm existing conditions.
[Ord. No. 2804, Added, 1-2-2019]
An operator may lease or otherwise provide capacity on or in
its systems to others ("lessees"); provided, that (1) the operator
provides the City with the name and business address of any lessee;
(2) the operator requires that all lessees have obtained proper authority,
in the form of a permit, license, or franchise from the City before
leasing capacity on or in its facilities; (3) the use of the operator’s
capacity does not require or involve any additional equipment owned
or operated by the lessee to be installed on the facility; and (4)
the operator maintains control over and responsibility for the facility
at all times. Nothing in this section relieves or lessens the restrictions
or requirements of this chapter.
[Ord. No. 2804, Added, 1-2-2019]
1.
Every
operator shall install and maintain all facilities in a manner that
complies with applicable federal, state and local laws, rules, regulations,
and policies. The operator shall, at its own expense, repair and maintain
facilities from time to time as may be necessary to accomplish this
purpose.
2.
If,
after written notice from the City of the need for repair or maintenance,
an operator fails to repair and maintain facilities as requested by
the City and by the date established by the City, the City may perform
such repair or maintenance using qualified personnel or contractors
at the operator’s sole expense. Upon receipt of a detailed invoice
from the City, the operator shall reimburse the City for the costs
the City incurred within 30 days.
[Ord. No. 2804, Added, 1-2-2019]
1.
If
the City vacates any public rights-of-way, or portion thereof, that
an operator uses, the operator shall, at its own expense, remove its
facilities from the public rights-of-way unless: (a) the City reserves
a public utility easement, which the City shall make a reasonable
effort to do; provided, that it is practicable to do so and there
is no expense to the City; or (b) the operator obtains an easement
for its facilities.
2.
If
the operator fails to remove its facilities within 30 days after a
public right-of-way is vacated, or as otherwise directed or agreed
to in writing by the City, the City may remove the facilities using
qualified workers in accordance with state and federal laws and regulations
at the operator’s sole expense. Upon receipt of a detailed invoice
from the City, the operator shall reimburse the City for the costs
the City incurred within 30 days.
[Ord. No. 2804, Added, 1-2-2019]
1.
Every
person that owns, controls, or uses facilities in the City’s
public rights-of-way, regardless of whether customers within the City
are served by those facilities, must pay a fee as determined by resolution
of the City Council;
2.
Unless
otherwise agreed to in writing by the City, the rights-of-way fee
shall be paid quarterly, in arrears, for each quarter during the term
of the license within 30 days after the end of each calendar quarter
and shall be accompanied by an accounting of gross revenues, if applicable,
and a calculation of the amount payable. The operator shall pay simple
interest at a rate of 9% or the highest rate permitted under applicable
law per year for any payment made after the due date.
3.
The
calculation of the rights-of-way fee required by this section shall
be subject to all applicable limitations imposed by federal or state
law.
4.
The
City reserves the right to enact other fees and taxes applicable to
the operators subject to this chapter. Unless expressly permitted
by the City in enacting such fee or tax, or required by applicable
state or federal law, no operator may deduct, offset or otherwise
reduce or avoid the obligation to pay any lawfully enacted fees or
taxes based on the payment of the rights-of-way fee or any other fees
required by this chapter.
[Ord. No. 2804, Added, 1-2-2019]
1.
The
City may audit any operator at any time. The City will make a written
request for information and the operator must comply with the request
within 30 days of receipt of the City’s written request, or
such other time as agreed to in writing.
2.
Every
provider of utility service shall furnish the City with information
enough to demonstrate that the provider is in compliance with all
the requirements of this chapter and its franchise agreement, if any,
including but not limited to payment of any applicable registration
fee, rights-of-way fee or franchise fee.
3.
Every
operator shall make available for inspection by the City at reasonable
times and intervals all maps, records, books, diagrams, plans and
other documents maintained by the operator with respect to its facilities
within the public rights-of-way or public utility easements. Access
shall be provided within the City unless prior arrangement for access
elsewhere has been made with the City.
4.
If
the City’s audit of the books, records and other documents or
information of the operator or utility service provider demonstrates
that the operator or provider has underpaid the rights-of-way fee
or franchise fee by 3% or more in any one year, the operator shall
reimburse the City for the cost of the audit, in addition to any interest
owed as provided by this chapter or as specified in a franchise agreement.
5.
Any
underpayment, including any interest or audit cost reimbursement,
shall be paid within 30 days of the City’s notice to the utility
service provider of such underpayment.
[Ord. No. 2804, Added, 1-2-2019]
1.
Insurance.
a.
All
operators shall maintain in full force and effect the following liability
insurance policies that protect the operator and the City, as well
as the City’s officers, agents, and employees, with limits not
less than the amounts established by City Council resolution:
b.
The
limits of the insurance shall exceed those established by the City
Council resolution to the extent necessary to at least equal the maximum
limits of liability imposed on municipalities of the state of Oregon.
The insurance shall be without prejudice to coverage otherwise existing
and shall name, or the certificate of insurance shall name, as additional
insureds the City and its officers, agents and employees. The coverage
must apply as to claims between insureds on the policy. The operator
shall provide the City 30 days prior written notice of any cancellation
or material alteration of said insurance. If the insurance is canceled
or materially altered, the operator shall maintain continuous uninterrupted
coverage in the terms and amounts required. The operator may self-insure,
or keep in force a self-insured retention plus insurance, for any
or all of the above coverage.
c.
The
operator shall at all times maintain on file with the City a current
certificate of insurance, or proof of self-insurance acceptable to
the City, certifying the coverage required above.
2.
Indemnification.
a.
To the fullest extent permitted by law, each operator shall defend, indemnify and hold harmless the City and its officers, employees, agents and representatives from and against any and all liability, causes of action, claims, damages, losses, judgments and other costs and expenses, including attorney fees and costs of suit or defense (at both the trial and appeal level, whether or not a trial or appeal ever takes place) that may be asserted by any person or entity in any way arising out of, resulting from, during or in connection with, or alleged to arise out of or result from the negligent, careless or wrongful acts, omissions, failure to act or other misconduct of the utility operator or its affiliates, officers, employees, agents, contractors, subcontractors or lessees in the construction, operation, maintenance, repair or removal of its facilities, and in providing or offering utility services over the facilities, whether such acts or omissions are authorized, allowed or prohibited by this chapter or by a franchise agreement. The acceptance of a license under LOC § 51.01.070 shall constitute such an agreement by the applicant whether the same is expressed or not.
b.
Every
operator shall also indemnify the City for any damages, claims, additional
costs or expenses assessed against or payable by the City arising
out of or resulting, directly or indirectly, from the operator’s
failure to remove or relocate any of its facilities in the public
rights-of-way or easements in a timely manner, except to the extent
the operator’s failure arises directly from the City’s
negligence or willful misconduct.
[Ord. No. 2804, Added, 1-2-2019]
Every operator shall comply with all applicable federal and
state laws and regulations, including regulations of any administrative
agency thereof, as well as all applicable ordinances, resolutions,
rules and regulations of the City, heretofore or hereafter adopted
or established during the term of any license granted under this chapter.
[Ord. No. 2804, Added, 1-2-2019]
If any person is required by this chapter to provide books,
records, maps or information to the City that the person reasonably
believes to be confidential or proprietary, the City shall take reasonable
steps to protect the confidential or proprietary nature of the books,
records, maps or information to the extent permitted by the Oregon
Public Records Law; provided, that all documents are clearly marked
as confidential by the person at the time of disclosure to the City.
The City shall not be required to incur any costs to protect such
documents, other than the City’s routine internal procedures
for complying with the Oregon Public Records Law.
[Ord. No. 2804, Added, 1-2-2019]
No person may occupy or encroach on a public right-of-way without
the permission of the City. The City grants permission to use public
rights-of-way by franchises, licenses, and permits.
[Ord. No. 2804, Added, 1-2-2019]
The exercise of jurisdiction and regulatory control over a public
right-of-way by the City is not official acceptance of the right-of-way
and does not obligate the City to maintain or repair any part of the
public rightof-way.
[Ord. No. 2804, Added, 1-2-2019]
1.
In addition to any other remedy provided in this chapter, a violation of any provision of this chapter is a civil violation and shall be enforced under the provisions of LOC Article 34.04. Each day that the violation exists or continues shall constitute a separate violation. Each civil violation shall be punishable by a fine of not less than $100.00 and not more than $1,000.
2.
Before issuing the first citation for a violation, the City shall mail written notice of the violation to the operator providing a reasonable time (no less than 20 and no more than 40 days from the date of the notice) for the operator to remedy the violation to the City’s satisfaction. The notice shall be mailed to the operator’s address as listed in the operator’s registration under LOC § 51.01.060. If the operator has no current registration, no notice shall be required.
3.
The
rights, remedies and penalties provided in this chapter are cumulative,
are not mutually exclusive, and are in addition to any other rights,
remedies and penalties available to the City under any other provision
of law, including without limitation any judicial or other remedy
at law or in equity for enforcement of this chapter.
[Ord. No. 2804, Added, 1-2-2019]
1.
The
provisions of this chapter shall be interpreted to be consistent with
applicable federal and state law, and shall be interpreted, to the
extent possible, to cover only matters not preempted by federal or
state law.
2.
If
any article, section, subsection, sentence, clause, phrase, term,
provision, condition, covenant or portion of this chapter is for any
reason declared or held to be invalid or unenforceable by any court
of competent jurisdiction or superseded by state or federal legislation,
rules, regulations or decision, the remainder of this chapter shall
not be affected thereby but shall be deemed as a separate, distinct
and independent provision, and such holding shall not affect the validity
of the remaining portions hereof, and each remaining section, subsection,
sentence, clause, phrase, term, provision, condition, covenant or
portion of this chapter shall be valid and enforceable to the fullest
extent permitted by law. In the event any provision is preempted by
federal or state laws, rules or regulations, the provision shall be
preempted only to the extent required by law and any portion not preempted
shall survive. If any federal or state law resulting in preemption
is later repealed, rescinded, amended or otherwise changed to end
the preemption, such provision shall thereupon return to full force
and effect and shall thereafter be binding without further action
by the City.
[Ord. No. 2804, Added, 1-2-2019]
To the extent that this chapter is not in conflict with and
can be implemented consistent with existing franchise agreements,
this chapter shall apply to all existing franchise agreements granted
to operators by the City.
