For the purpose of this Chapter, the following terms, phrases, words and their derivations, shall have the meanings given herein. Terms not defined in this Section shall be interpreted in accordance with Chapter 1.04 of this Code. Terms not defined in this Section or in Chapter 1.04 of this Code, shall be given the meaning set forth in the Communications Policy Act of 1934, as amended, the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996. If not defined there, the words shall be given their common and ordinary meaning. Definitions for this Chapter are as follows:
means the one-way transmission to subscribers of video programming,
or other video, audio or data service using the same means of transmission
as used to transmit video programming; and subscriber interaction,
if any, which is required for the selection or use of such video programming
or other programming service.
means and includes all real property owned by the City, other
than the public way and utility easements as those are defined herein.
means any structure, or portion thereof, containing one or
more ducts, conduits, manholes, handholds, bolts or other facilities
used for any telegraph, telephone, cable television, electrical or
communications conductors or cable facilities.
means any activity in the public way resulting in physical
change thereto, including excavation or placement of structures, but
excluding routine maintenance or repair of existing facilities.
means actual working control in whatever manner exercised.
means both the end user of telecommunications services in
the City and any person that acquires telecommunications services,
bandwidth or other form of capacity for its own to use or for resale
in the City.
means a single enclosed raceway for conductors or cable.
"Emergency" has the meaning provided in ORS 401.025.
means a license from the City which grants a privilege to
occupy the public way and utility easements within the City for a
dedicated purpose, for specific compensation and for a specified period
of time.
means the person to whom or the entity to which a telecommunications
franchise is granted by the City, including both telecommunication
carriers and non-carrier providers.
means all revenue earned by a telecommunications provider from operations within the City, including but not limited to service to customers located within the City and other persons who use the grantee's facilities within the City to provide service to customers. A person that sells capacity or bandwidth to another telecommunications provider, as described in Section 9.25.380, may deduct the income received in that transaction from its gross revenue for purposes of calculating the franchise fee described in Section 9.25.110
means a telecommunications provider that is not also classified
as a telecommunications carrier. It includes but is not limited to
providers that install, own or lease facilities in the public way
and providers that acquire bandwidth or other capacity to resell or
provide service directly to customers in the City. "Non-carrier provider"
includes several different types of telecommunications providers,
including but is not limited to providers often known as competitive
local exchange carriers, resellers and long-haul providers.
means an individual, corporation, company, association, joint
stock company or association, firm, partnership or limited liability
company.
means a system, including the construction, maintenance or
operation of the system, for the provision of a service or any portion
of a service which is owned or operated exclusively by a person for
their use and not for resale, directly or indirectly. "Private telecommunications
network" includes services provided by the State of Oregon pursuant
to ORS 190.240 and 283.140.
includes, but is not limited to, any street, road, bridge,
alley, sidewalk, trail, path and utility easement, including the subsurface
under and air space over these areas. This definition applies only
to the extent of the City's right or authority to grant a franchise
to occupy and use such areas for telecommunications facilities. "Public
way" does not include City-owned buildings, parks or other property.
means low-powered radio access nodes that operate in licensed
and unlicensed spectrum with a range of 10 meters to one or two kilometers
and can be deployed relatively easily on utility poles, street lamps,
water towers, or rooftops.
means the Communication Policy Act of 1934, as amended by
subsequent enactments including the Telecommunications Act of 1996
(47 U.S.C. Section 151 et seq.) and as hereafter amended.
means a telecommunications provider that is a telecommunication
utility as defined in ORS 759.005 or successor statutes or a cooperative
corporation formed under ORS Chapter 62 that provides telecommunications
service as defined in ORS 759.005 or successor statutes. It is often
known as the incumbent local exchange carrier.
means the plant and equipment, other than customer premises
equipment, including, but not limited to, line, pipe, wire cable,
fiber, etc. occupying the public way, used, designed or intended for
use by a telecommunications provider to provide telecommunications
services.
means: (1) any person that provides telecommunications services
to any person or premises within the City, including both telecommunication
carriers and non-carrier providers; (2) any person that directly or
indirectly owns, leases, operates, manages, or otherwise controls
telecommunications facilities which occupy public way within the City;
(3) any person that is directly or indirectly owned or controlled
by any person described in this definition; and includes every person
that directly or indirectly owns, controls, operates or manages plant,
equipment or property within the City which is used, or to be used
for the purpose of offering telecommunication services. For purposes
of this definition, "owns" or "controls" means that one person or
entity owns more than 25% of the stock or assets or has more than
25% common partners, directors or owners with another entity. In addition,
any person that leases, purchases or otherwise receives telecommunications
service or use of a telecommunications facility for less than a reasonable
price, so as to create a reasonable inference that the two parties
did not deal at arm's length, shall be deemed to be owned or controlled
by the second party.
means the providing or offering for rent, sale or lease,
or in exchange for other value received, of the transmittal of voice,
data, image, graphic and video programming or any other information
between or among points by wire, cable, fiber optics, or by laser,
microwave, radio, satellite or similar wireless facilities, with or
without benefit of any closed transmission medium and without regard
to the nature of the transmission protocol employed, but does not
include: (1) cable television services; (2) private telecommunications
network services; (3) over-the-air radio or television broadcasting
to the public-at-large from facilities licensed by the Federal Communications
Commission or any successor thereto; (4) direct-to-home satellite
service within the meaning of Section 602 of the Telecommunications
Act of 1996; (5) services provided solely for the purpose of providing
internet service to the customer; (6) public safety radio systems;
(7) mobile service within the meaning of 47 U.S.C. Section 153(33)
(2012); and services to devices exclusively utilizing electromagnetic
spectrum unlicensed by the Federal Communications Commission.
see "telecommunication facilities" above. "Telecommunications
utility" has the same meaning as given in ORS 759.005(9).
means any easement granted to or owned by the City and acquired,
established, dedicated or devoted for public utility purposes.
means the plant, equipment and property, including, but not
limited to, the poles, pipes, mains, conduits, ducts, cable, wires,
plant and equipment located under, on, or above the surface of the
ground within the public right-of-way of the City and used or to be
used for the purpose of providing utility or telecommunication services.
(Ord. 3063 § 2, 2000; Ord. 3133 § 1, 2003; Ord. 3294 § 1, 2008; Ord. 3460 § 1, 2016; Ord. 3580 § 1, 2023)
The purpose and intent of this Chapter are to:
A.
Respond
to increased use of the public way by telecommunication providers
and to technological advances in the telecommunications industry;
B.
Comply
with the 1996 Telecommunications Act as it applies to local governments,
telecommunications providers and the services those providers offer;
C.
Encourage
the provision of advanced and competitive telecommunications services
on the widest possible basis to businesses, institutions and residents
of the City on a competitively neutral basis;
D.
Permit
and manage reasonable access to the public way of the City for telecommunications
purposes on a competitively neutral basis and conserve the limited
physical capacity of the public way held in trust by the City;
E.
Assure
that the City's current and ongoing costs of granting and regulating
private access to and the use of the public way are fully compensated
by the persons seeking such access and causing such costs;
F.
Recognize
the public way as a valuable City asset and secure fair and reasonable
compensation to the City and its residents for permitting private
use of the public way and for physical damage and aesthetic harm to
the public way from construction and installation of facilities in
the public way;
G.
Assure
that all telecommunications providers occupying the public way with
telecommunication facilities obtain a franchise and comply with the
ordinances, rules and regulations of the City;
H.
Enable
the City to discharge its public trust consistent with the rapidly
evolving federal and state regulatory policies, industry competition
and technological development; and
I.
Assure
telecommunications providers that investing in infrastructure in the
City is a secure and wise investment, while reserving to the City
the ability to respond to new developments in the industry at the
time of franchise renewal and by amending its ordinances.
J.
Recognize
that the City's grant of a franchise is in the nature of a license
in exchange for a fee, rather than a contract.
(Ord. 3063 § 2, 2000; Ord. 3133 § 2, 2003; Ord. 3294 § 2, 2008)
A.
The
City has jurisdiction and exercises regulatory management over the
public way whether the City has a fee, easement or other legal interest
in the public way and whether the legal interest was obtained by grant,
dedication, prescription, reservation, condemnation, annexation, foreclosure
or other means.
B.
No person
may occupy or encroach on a public way or other City property without
the permission of the City. The City grants permission to use public
way by franchises and permits.
C.
The
City retains the right and privilege to cut or move any telecommunications
facilities located within the public way as the City may determine
to be necessary, appropriate or useful in response to a public health
or safety emergency.
(Ord. 3063 § 2, 2000)
The fees provided for in this chapter and any compensation charged
and paid for use of the public way provided for in this Chapter are
not a tax and are separate from, and in addition to, any and all federal,
state, local and City charges as may be levied, imposed or due from
a telecommunications provider, its customers or subscribers, or on
account of the lease, sale, delivery or transmission of telecommunications
services.
(Ord. 3063 § 2, 2000)
A.
All
telecommunications providers who occupy the public way in the City
or provide telecommunications services to customers in the City must
obtain a franchise from the City. For purposes of this Section, "occupy"
the public way means to own, lease, rent or possess the right to make
physical changes to a telecommunications facility in the public way
B.
A telecommunications
provider that holds a current, valid franchise from the City may continue
to provide the services authorized by its franchise for the duration
of the current term of the franchise.
C.
Nothing
in this Chapter is intended to override state or federal law, and
any provision that would conflict with state or federal law if applied
to a particular grantee shall be unenforceable to the extent of the
conflict and only to that extent.
(Ord. 3063 § 2, 2000; Ord. 3133 § 3, 2003; Ord. 3294 § 3, 2008)
Editor's note(s)—Ord. No. 3294, § 4, adopted
Dec. 8, 2008, repealed § 9.25.050, which pertained to Telecommunications
franchise and derived from Ord. 3063 § 2, 2000 and Ord.
3133 § 5, 2003. See also the Code Comparative Table and
Disposition List.
Any person that desires a telecommunications franchise shall
file with the City Recorder an application which includes the following
information:
A.
The
identity and legal status of the applicant, including the name, address
and telephone number of the duly authorized officer, agent or employee
responsible for the accuracy of the information required on the application
and the duly authorized officer, agent or employee to be contacted
in case of an emergency.
B.
A description
of the type of telecommunications services that are to be offered
or provided by the applicant to customers within the City; a description
of the general types and locations of telecommunication facilities
that the applicant currently owns or leases within the City; and a
description of the general types and locations of telecommunication
facilities that the applicant intends to construct within the City
within two years of obtaining a franchise.
C.
Engineering
plans, specifications and a network map of the facilities located
within the public rights of way in the City, including the location
and route requested for applicant's proposed telecommunications facilities.
The City may require the information to be provided in electronic
form readable by City computers or may specify another format.
D.
The
area or areas of the City the applicant desires to serve and a preliminary
construction schedule for build-out to the entire franchise area.
E.
Information
to establish that the applicant has obtained all other governmental
approvals and permits to construct and operate the facilities and
to offer or provide the telecommunications services proposed including,
but not limited to, the appropriate license from the Oregon Public
Utility Commission (PUC) or the Federal Communication Commission (FCC).
F.
An accurate
map showing the location of any existing telecommunications facilities,
if any, in the City that applicant intends to use or lease.
(Ord. 3070 § 2, 2000; Ord. 3133 § 6, 2003; Ord. 3294 § 5, 2008)
An application review fee as set by Council resolution shall be paid to the City as part of the application filed pursuant to the above Section 9.25.060.
(Ord. 3070 § 3, 2000; Ord. 3133 § 7, 2003)
The City shall issue a written determination granting or denying the application in whole or in part. If the application is denied, the written determination shall include the reasons for denial. A denial may be appealed to the City Council which shall resolve the appeal in the manner provided in Section 9.25.190.
(Ord. 3063 § 2, 2000; Ord. 3133 § 8, 2003)
No franchise granted pursuant to this Chapter shall convey any
right, title or interest in the public way, but shall be deemed a
grant to use and occupy the public way for the limited purposes and
term and upon the conditions stated in the franchise agreement.
(Ord. 3063 § 2, 2000; Ord. 3133 § 9, 2003)
A.
Unless
otherwise specified in a franchise agreement, a telecommunications
franchise granted hereunder shall be in effect for an initial term
of three years. Subject to conditions stated in this Code and unless
otherwise specified in a franchise agreement, telecommunication franchises
shall be automatically renewed for additional three-year terms, running
from the anniversary of the grant of the initial franchise, up to
a total of five terms including the initial term. A grantee desiring
termination of a franchise after the initial term, but prior to any
such renewal(s), must provide the City with written notice of such
intent to terminate certifying that it will no longer be providing
telecommunication services within the City of Roseburg at least 30
days prior to the date of renewal of said franchise.
B.
A grantee
shall be entitled to automatic renewal of its franchise for additional
three-year terms, up to a total of five terms including the initial
term, subject to and contingent upon the following conditions:
1.
In
the City's judgment, the public way has sufficient capacity to accommodate
the grantee's existing and proposed facilities;
2.
The
grantee continues to meet the legal requirements for providing service
in the City;
3.
The
grantee has complied with all the requirements of this Chapter and
its franchise;
4.
Applicable
federal, state and local laws, rules and policies allow the grantee
to continue its operations in the City;
C.
As a
condition of each automatic renewal of a franchise, the City, upon
written notice provided to the grantee at least 60 days prior to the
renewal date, may require the grantee to:
1.
Pay
additional compensation, or pay compensation calculated in a different
manner, for the rights granted by the franchise. Any additional or
new compensation requirement shall be consistent with the requirements
imposed on other similarly situated grantees at the time of renewal.
2.
Comply
with any amendments to this Chapter or other applicable provisions
of this Code that the City has adopted since the franchise was granted.
3.
Agree
to amendments to the franchise based on changes to state or federal
law; and
4.
Execute
a modification agreement setting forth all such amended terms of the
franchise.
D.
After
the term of the initial franchise and maximum renewals provided for
in this Section have expired, a grantee must apply for a new franchise
under the same terms and conditions as apply to new franchise applications
at the time and pay a fee as set by Council resolution to cover the
cost of the City's review of the application. An application for a
new franchise must be submitted not less than 180 days prior to expiration
of the existing franchise and must contain the following information:
(Ord. 3063 § 2, 2000; Ord. 3133 § 12, 2003; Ord. 3294, § 6, 2008; Ord. 3353 § 1, 2010)
Each grantee shall pay to the City a franchise fee as follows:
A.
A telecommunications
carrier shall pay seven percent of its gross revenue derived from
exchange access services, as defined in ORS 403.105 or a successor
statute, less net uncollectibles from such revenue. The fee shall
be paid to the City on a quarterly basis, based on the revenues derived
from the quarter just passed, not more than 30 days following the
end of the quarter.
B.
A non-carrier
provider that serves customers in the City shall pay five percent
of its gross revenue. The fee shall be paid to the City on a quarterly
basis, based on the revenues derived from the quarter just passed,
not more than 30 days following the end of the quarter.
C.
A non-carrier
provider that occupies the public way but has no customers in the
City shall pay an annual fee for each linear foot of the public way
occupied by its facilities. The fee shall be set by Council resolution
and adjusted annually in accordance with the Consumer Price Index
(CPI-U West). The fee shall be paid by January 31 of each year, based
on the linear feet of public way occupied by grantees facilities as
of December 31 of the prior year. For the year in which grantee first
obtains a franchise, the fee may be prorated on a monthly basis from
the date of issuance of a permit to construct facilities in the public
way, to December 31 of said year. Such proration shall not be applied
in subsequent years.
D.
A person
that holds a franchise for a private communications network shall
pay an annual fee for each linear foot of the public way occupied
by its facilities. The fee shall be set by Council resolution and
adjusted annually in accordance with the Consumer Price Index (CPI-U
West). The fee shall be paid by January 31 of each year, based on
the linear feet of public way occupied by grantee's facilities
as of December 31 of the prior year. For the year in which grantee
first obtains a franchise, the fee may be prorated on a monthly basis
from the date of issuance of a permit to construct facilities in the
public way, to December 31 of said year. Such proration shall not
be applied in subsequent years.
E.
A telecommunications provider that serves customers in the City and, on the effective date of this ordinance, holds a valid franchise authorizing it to occupy the public way and pay a fee by the linear foot, may, until the expiration of the current term of such franchise, continue to pay at the per-foot fee set by Council resolution in effect at the time this ordinance is adopted, as adjusted for inflation, or may elect to pay a fee calculated according to Subsection B of this Section.
F.
The
fee for each small cell installed within the city limits of the City
of Roseburg shall be set by Council resolution. The fee shall be paid
on an annual basis, not more than 30 days following the end of each
calendar year.
G.
Any
grantee that fails to pay the franchise fee when due, shall be charged
a penalty of 10% and the legal rate of interest established by state
statute, on such unpaid balance.
(Ord. 3063 § 2, 2000; Ord. 3133 § 12, 2003; Ord. 3294 § 6, 2008; Ord. 3580 § 2, 2023)
A telecommunications provider that occupies the public way without a franchise, provides services to customers in the City without a franchise or provides services not authorized by its franchise shall pay the City a fee of six percent of gross revenues, plus interest and penalties as described in Section 9.25.110(G).
(Ord. 3294 § 7, 2008)
Conditions for amending a franchise are as follows:
A.
If any
grantee desires to extend or locate its telecommunications facilities
in a public way of the City which is not included in a franchise previously
granted by the City, an amendment to the franchise will be required.
B.
If the
City orders a grantee to locate or relocate its telecommunications
facilities in a public way not included in a previously granted franchise,
the City shall grant an automatic amendment without an additional
fee.
C.
An amended
franchise shall be required of any grantee that desires to provide
a different type of a service (e.g., cable, telephony) which was not
included in a franchise previously granted by the City. An amendment
to a franchise will not be required if a grantee adds new or enhanced
services of the same type authorized by its existing franchise - e.g.,
a cable service provider offers digital music service as well as video,
or a telephonic service provider adds features like call waiting,
call forwarding or caller i.d.
(Ord. 3063 § 2, 2000; Ord. 3133 § 13, 2003)
Editor's note(s)—Ord. No. 3353, § 2, adopted
July 26, 2010, repealed § 9.25.130, which pertained to renewal
applications and derived from Ord. 3133 § 14, 2003; Ord.
3063 § 2, 2000.
Editor's note(s)—Ord. No. 3353, § 2, adopted
July 26, 2010, repealed § 9.25.140, which pertained to renewal
of franchise and derived from Ord. 3133 § 15, 2003; Ord.
3063 § 2, 2000.
No franchise shall be renewed until any and all ongoing violations
or defaults in the grantee's performance of the franchise, or of the
requirements of this Chapter, have been cured, or a plan detailing
the corrective action to be taken by the grantee has been approved
by the City.
(Ord. 3063 § 2, 2000; Ord. 3133 § 16, 2003)
Ownership or control of a majority interest in a telecommunications
franchise may not, directly or indirectly, be transferred, assigned
or disposed of by sale, lease, merger, consolidation or other act
of the grantee, by operation of law or otherwise, without the prior
consent of the City, which consent shall not be unreasonably withheld
or delayed. The City may attach reasonable conditions to its consent,
such as, but not limited to:
A.
Grantee
and the proposed assignee or transferee of the franchise or system
shall agree, in writing, to assume and abide by all of the provisions
of the franchise.
B.
The
approval shall be effective only when the assignee or transferee has
demonstrated that it has the legal, technical, financial and other
qualifications required by law to own, hold and operate the telecommunications
system pursuant to this Chapter.
C.
Unless
otherwise provided in a franchise agreement, the grantee shall reimburse
the City for all direct and indirect fees, costs and expenses reasonably
incurred by the City in considering a request to transfer or assign
a telecommunications franchise, including the reasonable cost of the
professional consultation on legal, technical or financial issues
related to the transfer or assignment.
(Ord. 3063 § 2, 2000; Ord. 3133 § 17, 2003)
A franchise to use or occupy public way of the City may be revoked
or terminated for any of the following reasons:
A.
Construction
or operation in the City or in the public way of the City without
a construction permit.
B.
Construction
or operation at an unauthorized location.
C.
Failure to comply with Section 9.25.160 herein with respect to sale, transfer or assignment of a telecommunications system or franchise.
D.
Misrepresentation
by or on behalf of a grantee in any application to the City.
E.
Abandonment
of telecommunications facilities in the public way.
F.
Failure
to relocate or remove facilities as required in this Chapter.
G.
Failure
to pay taxes, compensation, fees or costs when and as due the City
under this Chapter.
H.
Insolvency
or bankruptcy of the grantee.
I.
Violation
of a material provision of this Chapter.
J.
Violation
of a material term of a franchise agreement.
K.
No longer
providing telecommunications services in the City of Roseburg.
(Ord. 3063 § 2, 2000; Ord. 3133 § 18, 2003; Ord. 3580 § 3, 2023)
In the event that the City believes that grounds exist for revocation
or termination of a franchise, the City shall give the grantee written
notice of the apparent violation or noncompliance, providing a short
and concise statement of the nature and general facts of the violation
or noncompliance, and providing the grantee a reasonable period of
time, not exceeding 30 days, to furnish evidence that:
A.
Corrective
action has been, or is being actively and expeditiously pursued, to
remedy the violation or noncompliance;
B.
The
allegation of a violation or noncompliance is incorrect; and/or
C.
It would
be in the public interest to impose some penalty or sanction less
than revocation.
(Ord. 3063 § 2, 2000; Ord. 3133 § 19, 2003; Ord. 3580 § 4, 2023)
In the event that a grantee fails to provide evidence reasonably satisfactory to the City as provided in Section 9.25.180, the City Manager shall refer the apparent violation or noncompliance to the City Council. The City Council shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter. The hearing may be before the City Council, or at its discretion, the Council may appoint a hearings official to receive evidence and arguments and to prepare a report to the Council.
(Ord. 3063 § 2, 2000; Ord. 3133 § 20, 2003)
If persuaded that the grantee has violated or failed to comply
with material provisions of this Chapter or a franchise agreement,
the City Council shall determine whether to revoke the franchise,
or to establish some lesser sanction and cure, considering the nature,
circumstances, extent and gravity of the violation as reflected by
one or more of the following factors:
A.
The
misconduct was egregious.
B.
Substantial
harm resulted.
C.
The
violation was intentional.
D.
There
is a history of prior violations of the same or other requirements.
E.
There
is a history of overall compliance.
F.
The
violation was voluntarily disclosed, admitted or cured.
G.
Any
other fact or circumstance that, in the City Council's judgment, is
relevant to the severity of the violations.
(Ord. 3063 § 2, 2000; Ord. 3133 § 21, 2003)
No person, telecommunications provider or grantee shall commence or continue with the construction, installation or operation of telecommunication facilities in a public way except as provided in Sections 9.25.220 through 9.25.320, and in compliance with Chapter 4.02 of this Code and the applicable rules of the City.
(Ord. 3063 § 2, 2000; Ord. 3133 § 22, 2003)
Telecommunications facilities shall be constructed, installed,
operated and maintained in accordance with all applicable federal,
state and local codes, rules and regulations, including the National
Electrical Code and the National Electrical Safety Code.
(Ord. 3063 § 2, 2000; Ord. 3133 § 23, 2003)
No person, telecommunications provider or grantee shall construct or install any telecommunications facilities in a public way without first obtaining a permit and paying the fees required by Chapter 4.02 of this Code. No permit shall be issued for the construction or installation of telecommunications facilities in a public way unless the person or telecommunications provider has first applied for and received a franchise pursuant to this Chapter.
(Ord. 3063 § 2, 2000; Ord. 3133 § 24, 2003)
All construction permit applications shall be accompanied by
the verification of a registered professional engineer, or other 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.
(Ord. 3063 § 2, 2000; Ord. 3133 § 25, 2003)
All construction permit applications shall be accompanied by
a written construction schedule, which shall include a deadline for
completion of construction. The construction schedule is subject to
approval by the City's Public Works Director. The grantee shall promptly
complete all construction activities so as to minimize disruption
of the public way and other public and private property. All construction
work within the public way, including restoration, must be completed
within 90 days of the date of issuance of the construction permit
unless an extension or an alternate schedule has been approved by
the City's Public Works Director.
(Ord. 3063 § 2, 2000; Ord. 3133 § 26, 2003)
All grantees are required to make a good faith effort to cooperate
with the City, including, but not limited to the following:
A.
By January
1 of each year, grantees shall provide the City with a schedule of
their proposed construction activities in, around, or that may affect,
the public way;
B.
Non-carrier
providers shall also provide the City with a written statement certifying
the number of linear feet of public way occupied by their facilities
as of December 31st of the prior year;
C.
If requested
by the City, each grantee shall meet with the City annually or as
determined by the City, to schedule and coordinate construction in
the public way. At that time, the City will provide available information
on plans for local, state and/or federal construction projects; and
D.
All
construction locations, activities and schedules shall be coordinated,
as ordered by the Public Works Director or his designee, to minimize
public inconvenience, disruption or damage.
(Ord. 3063 § 2, 2000; Ord. 3133 § 27, 2003)
Within 60 days following written notice from the City to remove
the facilities, which notice shall not be issued until the grantee
has had a reasonable opportunity, not to exceed 60 days, to correct
noncomplying conditions, all work which does not comply with the construction
permit, the approved or corrected plans and specifications for the
work, or the requirements of this Chapter, shall be removed at the
sole expense of the grantee.
(Ord. 3063 § 2, 2000; Ord. 3133 § 28, 2003)
If requested by the city, the grantee shall furnish the City
with two complete sets of plans drawn to scale and certified to the
City as accurately depicting the location of all telecommunications
facilities constructed pursuant to the construction permit. These
plans shall be submitted to the City's Public Works Director or designee
within 60 days after completion of construction, in a format acceptable
to the City.
(Ord. 3063 § 2, 2000; Ord. 3133 § 29, 2003)
All facilities located within the public way shall be constructed,
installed and located in accordance with the following terms and conditions,
unless otherwise specified in a franchise agreement:
A.
Wherever
existing electric utilities, cable facilities and telecommunication
facilities are located underground within a public way of the City,
a grantee with permission to occupy the same public way must also
locate its telecommunications facilities underground.
B.
Whenever
all new or existing electric utilities, cable facilities or telecommunications
facilities are located or relocated underground within a public way
of the City, a grantee that currently occupies the same public way
shall relocate its facilities underground concurrently with the other
affected utilities to minimize disruption of the public way, absent
extraordinary circumstances or undue hardship as determined by the
City's Public Works Director and consistent with applicable state
and federal law.
C.
The
Public Works Director may require grantees to coordinate construction
schedules and to colocate facilities in the public way where the coordination
or co-location requirements do not unreasonably interfere with any
of the grantees' operations. The Public Works Director shall require
a co-locating grantee to provide reasonable compensation to another
grantee whose facilities it shares if necessary or appropriate to
prevent unjust enrichment of the co-locating grantee.
(Ord. 3063 § 2, 2000; Ord. 3133 § 30, 2003)
No grantee may locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the public way by the City, by the general public or by other persons authorized to use or be present in or upon the public way. All use of the public way shall be consistent with Chapter 4.02 of this Code and applicable rules and policies.
(Ord. 3063 § 2, 2000; Ord. 3133 § 31, 2003)
Within 60 days following written notice from the City or such
shorter time as the City may prescribe because of an emergency, a
grantee shall, at no expense to the City, temporarily or permanently
remove, relocate, change or alter the position of any telecommunications
facilities within the public way whenever the City shall have determined
that such removal, relocation, change or alteration is reasonably
necessary for:
A.
The
construction, repair, maintenance or installation of any City or other
public improvements in the public way regardless of whether part of
a private development or a publicly funded project.
B.
The
operations of the City or other governmental entity in the public
way.
C.
The
public interest.
(Ord. 3063 § 2, 2000; Ord. 3133 § 32, 2003; Ord. 3580 § 5, 2023)
Within 60 days following written notice from the City, any grantee,
telecommunications provider, or other person that owns, controls or
maintains any unauthorized telecommunications system, facility, or
related appurtenances within the public way of the City shall, at
its own expense, remove such facilities or appurtenances from the
public way of the City. A telecommunications system or facility is
unauthorized and subject to removal in the following circumstances:
A.
One
year after the expiration or termination of a telecommunications franchise
previously granted to this Chapter.
B.
Upon
abandonment of a telecommunications facility within the public way
of the City. A telecommunications facility will be considered abandoned
when it is deactivated, out of service, or not used for its intended
and authorized purpose for a period of 90 days or longer. Such facility
will not be considered abandoned if it is temporarily out of service
for repairs, upgrading or replacement or is an addition to or expansion
of a telecommunications facility in use, which addition or expansion
has been installed to provide excess capacity to serve future needs.
C.
If the
telecommunications system or facility was constructed or installed
without the appropriate prior authority at the time of installation.
D.
If the
telecommunications system or facility was constructed or installed
at a location not permitted by the grantee's telecommunications franchise
or other legally sufficient permit.
(Ord. 3063 § 2, 2000; Ord. 3133 § 33, 2003)
Upon request, each grantee shall provide the City with an accurate
map or maps certifying the location of all of the grantee's telecommunications
facilities within the public way. Each grantee shall provide updated
maps annually. Non-carrier providers shall also provide a written
certification of the total linear feet of public way occupied by its
facilities as of December 31st of the prior year, or as of any date
requested by the City.
(Ord. 3063 § 2, 2000; Ord. 3133 § 34, 2003)
Unless directly and proximately caused by willful, intentional
or malicious acts by the City, the City shall not be liable for any
damage to or loss of any telecommunications facility within the public
way of the City as a result of or in connection with any public works,
public improvements, construction, excavation, grading, filling, or
work of any kind in the public way by or on behalf of the City, or
for any consequential losses resulting directly or indirectly therefrom.
(Ord. 3063 § 2, 2000; Ord. 3133 § 35, 2003)
Within 10 business days of a written request from the City,
each grantee shall furnish the City with information sufficient to
demonstrate that grantee has complied with all requirements of this
Chapter. All books, records, maps and other documents, maintained
by the grantee with respect to its facilities within the public way
shall be made available for inspection by the City at reasonable times
and intervals.
(Ord. 3063 § 2, 2000; Ord. 3133 § 36, 2003)
If the City contracts with the grantee for the use of telecommunications
facilities, telecommunication services, installation or maintenance,
the grantee shall charge the grantee's most favorable rate offered
at the time of the request charged to similar users within Oregon
for a similar volume of service, subject to any grantee's tariffs
or price lists on file with the Oregon Public Utilities Commission.
With the City's permission, the grantee may deduct the applicable
charges from fee payments. Other terms and conditions of such services
may be specified in a separate agreement between the City and the
grantee.
(Ord. 3063 § 2, 2000; Ord. 3133 § 37, 2003)
Any person, persons or entity providing cable service exclusively shall be subject to the cable franchise requirements in Chapter 9.10 of this Code rather than the requirements of this Chapter.
(Ord. 3063 § 2, 2000; Ord. 3133 § 38, 2003)
A grantee shall have the right, without prior City approval,
to offer or provide capacity or bandwidth to another telecommunications
provider for resale or service to end-user customers; provided that
the grantee shall notify the City that such lease or agreement has
been granted to a customer or lessee. The person who acquires capacity
or bandwidth in such arrangement also must obtain a franchise and
pay franchise fees as provided in this Chapter.
(Ord. 3063 § 2, 2000; Ord. 3133 § 39, 2003; Ord. 3294 § 8, 2008)
Unless otherwise provided in a franchise agreement, each grantee
shall, as a condition of the franchise, secure and maintain the following
liability insurance policies insuring both the grantee and the City,
and its elected and appointed officers, officials, agents and employees
as coinsured:
A.
(1)
Comprehensive general liability insurance with limits not less than
$3,000,000.00 for bodily injury or death to each person; $3,000,000.00
for property damage resulting from any one accident; and (3) $3,000,000.00
for all other types of liability.
B.
Automobile
liability for owned, non-owned and hired vehicles with a limit of
$1,000,000.00 for each person and $3,000,000.00 for each accident.
C.
Workers'
compensation within statutory limits and employer's liability insurance
with limits of not less than $1,000,000.00.
D.
Comprehensive
form premises—operations, explosions and collapse hazard, underground
hazard and products completed hazard with limits of not less than
$3,000,000.00.
E.
The
liability insurance policies required by this Section shall be maintained
by the grantee throughout the term of the telecommunications franchise,
and such other period of time during which the grantee is operating
without a franchise hereunder, or is engaged in the removal of its
telecommunications facilities. Each such insurance policy shall contain
the following endorsement:
"It is hereby understood and agreed that this policy may not
be canceled nor the intention not to renew be stated until 90 days
after receipt by the City of Roseburg, by registered mail, of a written
notice addressed to the City Recorder of such intent to cancel or
not to renew."
F.
Within
60 days after receipt by the City of said notice, and in no event
later than 30 days prior to said cancellation, the grantee shall obtain
and furnish to the City evidence that grantee meets requirements of
this Section.
G.
As an
alternative to the insurance requirements contained herein, a grantee
may provide evidence of self-insurance subject to review and acceptance
by the City.
(Ord. 3063 § 2, 2000; Ord. 3133 § 40, 2003)
To the extent permitted by law, each grantee shall defend, indemnify
and hold the City and its officers, employees, agents and representatives
harmless from and against any and all damages, losses and expenses,
including reasonable attorney's fees and costs of suit or defense,
arising out of, resulting from or alleged to arise out of or result
from the negligent, careless or wrongful acts, omissions, failures
to act or misconduct of the grantee or its affiliates, officers, employees,
agents, contractors or subcontractors in the construction, operation,
maintenance, repair or removal of its telecommunication facilities,
and in providing or offering telecommunications services over the
facilities or network, whether such acts or omissions are authorized,
allowed or prohibited by this Chapter or by a franchise agreement
made or entered into pursuant to this Chapter.
(Ord. 3063 § 2, 2000; Ord. 3133 § 41, 2003)
Before a franchise granted pursuant to this Chapter is effective, and as necessary thereafter, the grantee shall provide a performance bond, in form and substance acceptable to the City, as security for the full and complete performance of a franchise granted under this Chapter, including any costs, expenses, damages or loss the City pays or incurs because of any failure attributable to the grantee to comply with the codes, ordinances, rules, regulations or permits of the City. This obligation is in addition to the performance surety required by Chapter 4.02 of this Code.
(Ord. 3063 § 2, 2000; Ord. 3133 § 42, 2003)
Wherever the consent of either the City or of the grantee is
specifically required by this Chapter, or in a franchise granted,
such consent will not be unreasonably withheld.
(Ord. 3063 § 2, 2000; Ord. 3133 § 43, 2003)
The City agrees to use its best efforts to preserve the confidentiality
of trade secrets or other information that reasonably may be deemed
confidential, as requested by a grantee, to the extent permitted by
the Oregon Public Records Law and to the extent consistent with other
provisions of this Chapter.
(Ord. 3063 § 2, 2000; Ord. 3133 § 44, 2003)
Any franchise granted under this Chapter is subject to the provisions of the Constitution and laws of the United States, and the State of Oregon and the ordinances and Charter of the City. Any action or suit pertaining to rights and obligations arising from this Chapter or any franchise or permit granted pursuant to this Chapter or Chapter 4.02 of this Code shall be filed in the Circuit Court of Douglas County, Oregon.
(Ord. 3063 § 2, 2000; Ord. 3133 § 45, 2003)
No franchise shall be granted hereunder unless the agreement
is in writing.
(Ord. 3063 § 2, 2000; Ord. 3133 § 46, 2003)
No franchise granted under this Chapter shall confer any exclusive
right, privilege, license or franchise to occupy or use the public
rights-of-way of the City for delivery of telecommunications services
or any other purposes.
(Ord. 3063 § 2, 2000; Ord. 3133 § 47, 2003)
If any article, section, subsection, sentence, clause, phrase,
term, provision, condition, covenant or portion of this Chapter is
for any reason held to be invalid or unenforceable by any court of
competent jurisdiction, or superseded by state or federal legislation,
rules, regulations or decisions, the remainder of the 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, provision, condition, covenant and portion
of this Chapter shall be valid and enforceable to the fullest extent
permitted by law. In the event that federal or state laws, rules or
regulations preempt a provision or limit the enforceability of a provision
of this Chapter, then the provision shall be read to be preempted
to the extent and/or the time required by law. In the event such federal
or state law, rule or regulation is subsequently repealed, rescinded,
amended or otherwise changed so that the provision hereof that had
been preempted is no long preempted, such provision shall thereupon
return to full force and effect, and shall thereafter be binding,
without the requirement of further action on the part of the City,
and any amendments hereto.
(Ord. 3063 § 2, 2000; Ord. 3133 § 48, 2003)
Nothing in this Chapter shall be construed as limiting any judicial remedies that the City may have, at law or in equity, for enforcement of this Chapter, including citation in compliance with Chapter 1.06 of this Code.
(Ord. 3063 § 2, 2000; Ord. 3133 § 49, 2003; Ord. 3580 § 6, 2023)
Any grantee under this Chapter shall comply with all federal
and state laws and regulations, including regulations of any administrative
agency thereof, as well as all ordinances, resolutions, rules and
regulations of the City heretofore or hereafter adopted or established
during the entire term any franchise granted under this Chapter, which
are relevant and relate to the construction, maintenance and operation
of a telecommunications system.
(Ord. 3063 § 2, 2000; Ord. 3133 § 50, 2003)
To the extent that this chapter is not in conflict with and
can be implemented with existing ordinances and franchise agreements,
this Chapter shall apply to all existing ordinances and franchise
agreements for use of the public right-of-way for telecommunications.
(Ord. 3063 § 2, 2000; Ord. 3133 § 51, 2003)
