The ordinance codified in this chapter shall be known and may
be referenced as the "utility service ordinance."
(Ord. 2131 § 3, 2016; Ord. 2164 § 1, 2018)
The ordinance codified in this chapter may also be referred to as utility services in the public right-of-way, excluding water, sewer and storm services. Encroachments which impact the use of public right-of-way are regulated by Chapter 12.14 of this Code.
(Ord. 2164 § 1, 2018)
The purpose and intent of this chapter is as follows:
A.
For
the purpose of this chapter, water, storm and sewer services are excluded.
However, the City reserves the right to include these services upon
resolution of the City Council;
B.
Permit
and manage reasonable access to the city's rights-of-way for utility
purposes, and conserve the limited physical capacity of those rights-of-way
held in trust by the City consistent with applicable state and federal
law;
C.
Assure
that the City's current and ongoing costs of granting and regulating
access to and the use of the rights-of-way are fully compensated by
the persons seeking such access and causing such costs;
D.
Secure
fair and reasonable compensation to the City and its residents for
permitting use of the rights-of-way by persons who generate revenue
by placing, owning or operating facilities therein or charging residents
for services delivered;
E.
Assure
that all utility companies, persons and other entities owning or operating
facilities or providing services within the city comply with the ordinances,
rules and regulations of the City;
F.
Assure
that the City can continue to fairly and responsibly protect the public
health, safety and welfare of its residents;
G.
Encourage
the provision of advanced and competitive utility services on the
widest possible basis to businesses and residents of the city by:
H.
Comply
with applicable provisions of state and federal law.
(Ord. 2131 § 3, 2016; Ord. 2164 § 1, 2018)
A.
The
City has jurisdiction and exercises regulatory management over all
rights-of-way within the city under authority of the City Charter
and Oregon law.
B.
The
City has jurisdiction and exercises regulatory management over each
rights-of-way whether the City has a fee, easement, or other legal
interest in the rights-of-way, and whether the legal interest in the
rights-of-way was obtained by grant, dedication, prescription, reservation,
condemnation, annexation, foreclosure or other means.
C.
The
exercise of jurisdiction and regulatory management of a right-of-way
by the City is not official acceptance of the rights-of-way, and does
not obligate the City to maintain or repair any part of the rights-of-way.
D.
The
provisions of this chapter are subject to and will be applied consistent
with applicable state and federal laws, rules and regulations, and
to the extent possible, shall be interpreted to be consistent with
such laws, rules and regulations.
(Ord. 2131 § 3, 2016; Ord. 2164 § 1, 2018)
A.
The
fees and costs provided for in this chapter, and any compensation
charged and paid for use of the rights-of-way provided for in this
chapter, are separate from, and in addition to, any and all other
federal, state, local, and City charges, including, but not limited
to: 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 operator, utility provider
or licensee, its customers or subscribers, or on account of the lease,
sale, delivery, or transmission of utility services.
B.
The
City has determined that any fee or tax 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.
C.
The
fees and costs provided for in this chapter are subject to applicable
federal and state laws.
(Ord. 2131 § 3, 2016; Ord. 2164 § 1, 2018)
For the purpose of this chapter the following terms, phrases,
words and their derivations shall have the meaning given herein. When
not inconsistent with the context, words not defined herein shall
be given the meaning set forth in the Communications Act of 1934,
as amended, the Cable Act, and the Telecommunications Act. If not
defined in those statutes, the words shall be given their common and
ordinary meaning. When not inconsistent with the context, words used
in the present tense include the future, words in the plural number
include the singular number and words in the singular number include
the plural number. The words "shall" and "will" are mandatory and
"may" is permissive.
means the Cable Communications Policy Act of 1984, 47 U.S.C.,
Section 521, et seq., as now and hereafter amended.
is to be defined consistent with federal laws and means the
one-way transmission to subscribers of: (1) video programming; or
(2) 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 January 1 to December 31, unless otherwise noted.
means the City of Milwaukie, an Oregon municipal corporation,
and individuals authorized to act on the City's behalf.
means the elected governing body of the City of Milwaukie,
Oregon.
means City or publicly-owned structures or equipment located
within the rights-of-way or public easement used for governmental
purposes.
means and includes all real property owned by the City, other
than public right-of-way and utility easement as those are defined
herein, all property held in proprietary capacity by the City.
means the Milwaukie Public Works and Engineering Standards,
in effect at the time of any work, is subject to this chapter.
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
service includes all forms of telephone services and voice, video,
data, or information transport, but does not include: (1) cable service;
(2) open video system service, as defined in 47 C.F.R. 76; (3) private
communications system services provided without using the public right-of-way;
(4) over-the-air radio or television broadcasting to the public-at-large
from facilities licensed by the Federal Communications Commission
or any successor thereto; (5) direct-to-home satellite service within
the meaning of Section 602 of the Telecommunications Act; and (6)
public communications systems.
means any activity in the public right-of-way resulting in
physical change thereto, including excavation or placement of structures.
means actual working control over utility facilities in whatever
manner exercised.
means calendar days unless otherwise specified.
means a circumstance in which immediate work or action is
necessary to restore lost service or prevent immediate harm to persons
or property.
means the federal administrative agency, or its lawful successor,
authorized to regulate and oversee telecommunications carriers, services
and providers on a nation level.
means any and all amounts, of any kind, nature or form, without
deduction for expense, less net uncollectables, derived from the operation
of utility facilities in the city and the provision of utility service
in the city, subject to all applicable limitations in federal or state
law.
means any person that has a valid right-of-way license issued
by the City.
means and includes any individual, firm, sole proprietorship,
corporation, company, partnership, co-partnership, joint-stock company,
trust, limited liability company, association, municipality, special
district, government entity or other organization, including any natural
person or any other legal entity.
means a system, including the construction, maintenance or
operation of the system, for the provision of communications which
is owned or operated exclusively by a person for that person's use
and not to provide communications services or other utility services
for sale or resale, including trade, barter or other exchange of value,
directly or indirectly, to any other person.
means any system owned or operated by a government entity
or entities for its exclusive use for internal communications or communications
with other government entities, and includes services provided by
the State of Oregon pursuant to ORS 283.140. "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 the space in, upon, above, along, across, over or under
an easement for the constructing, reconstructing, operating, maintaining,
inspecting, and repairing of utility facilities. "Public utility easement"
does not include an easement: (1) that has been privately acquired
by a utility operator; (2) solely for the constructing, reconstructing,
operating, maintaining, inspecting, and repairing of City facilities;
or (3) where the proposed use by the utility operator is inconsistent
with the terms of another easement granted to the City that applies
to the same location.
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, public utility easements and all
other public ways or areas, including the subsurface under and air
space over these areas, but does not include parks, parkland, or other
City property not generally open to the public for travel. 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 authorization granted by the City to a utility
provider or utility operator pursuant to this chapter.
means the State of Oregon.
means any facility a utility provider or utility operator
places in the ROW, including, but not limited to, poles, vaults or
manholes, hand holds or junction boxes, conduit, direct bury cable,
wires, pedestals, aerial cables or wires and transformers.
means the Communications Policy Act of 1934, as amended by
subsequent enactments including the Telecommunication Act of 1996
(47 U.S.C., 151 et seq.) and as hereafter amended.
means any physical component of a system or network, including,
but not limited to, the poles, pipes, mains, conduits, ducts, cables,
wires, transmitters, plant, antennas, equipment and other facilities,
located within, under or above the ROW, any portion of which is used
or designed to be used to deliver, transmit or otherwise provide utility
service.
means any person who owns, places, controls, operates or
maintains a utility facility within the city limits.
means any person who provides utility service to customers
within the city limits, whether or not any facilities in the ROW are
owned by such provider.
means the provision, by means of utility facilities permanently
located within, under or above the ROW, whether or not such facilities
are owned by the service provider, of electricity, natural gas, communications
services or, cable services to or from customers within the city limits,
or the transmission or provision of any of these services through
the city whether or not customers within the city are served by those
transmissions.
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. 2131 § 3, 2016; Ord. 2164 § 1, 2018)
Registration Required
Every person that desires to provide utility services to customers within the city shall register with the City prior to providing any utility services to any person, in the city, in compliance with Municipal Code Chapter 5.08. Every person providing utility services within the city as of the effective date of the ordinance codified in this chapter shall register within 30 days of the effective date of the ordinance codified in this chapter. Every person subject to this section shall renew and maintain a business registration as required in Municipal Code Chapter 5.08, heretofore or hereafter amended, at all times that the person provides and/or operates utility services to customers within the city, or controls a utility facility.
(Ord. 2131 § 3, 2016; Ord. 2164 § 1, 2018)
For electric utilities with an existing franchise with the City
as of the time of adoption of this Code, a privilege tax of one and
one-half percent (1.5%) of the electric utility's gross revenue is
imposed. Payment of all privilege taxes shall be paid to the City
on the same schedule as the utility's franchise fee payment or ROW
usage fee payment.
(Ord. 2131 § 3, 2016; Ord. 2164 § 1, 2018)
A.
License
Required
1.
Except
those utility operators and utility providers with a valid franchise
agreement from the City, every person shall obtain a license from
the City prior to conducting any work in or using the ROW.
2.
Every person that owns, controls, or uses utility facilities in the ROW as of the effective date of this chapter shall apply for a license from the City within 30 days of the later of: (a) the effective date of the ordinance codified in this chapter; (b) the expiration of a valid franchise from the City, unless a new franchise is granted by the City pursuant to subsection G of this section; or (c) for a person that is not a utility operator, providing utility services within the city.
B.
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
application or the City, in the City's sole discretion, to identify
the applicant, its legal status, including its authorization to do
business in Oregon, a description of the type of utility service provided
or to be provided by the applicant, a description of the facilities
over which the utility service will be provided, and other information
reasonably necessary to determine the applicant's ability to comply
with the terms of this chapter.
C.
License
Application Fee
The application shall be accompanied by a nonrefundable application
fee or deposit set by resolution of the City Council.
D.
Determination
by City
The City shall issue, within a reasonable period of time, 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
ROW to accommodate the applicant's proposed utility facilities and
the applicable federal, state and local laws, rules, regulations and
policies.
E.
Licensing
Fee
If the City determines a ROW license shall be issued, the applicant
shall, within 30 days of notification, submit the license fee set
by resolution of the City Council.
F.
Changes
to Information Contained on ROW License Application
Within 30 days of a change to the information listed on the
license application, the licensee shall notify the City in writing
of such change.
G.
Franchise
Agreements
If the public interest warrants, as determined by the City in
its sole discretion, the City and utility provider or utility 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 the franchise. In the event of a conflict between the express
provisions of a franchise and this chapter, the franchise shall control.
H.
Rights
Granted
1.
The
license granted hereunder shall authorize and permit the licensee,
subject to the provisions of the City Code and other applicable provisions
of state or federal law, in effect and as may be subsequently amended,
to construct, place, maintain, upgrade, repair and operate utility
facilities in the ROW for the term of the license for the provision
of utility service(s) authorized in the license. In the event the
licensee offers different service(s) than those authorized in the
license, the licensee shall inform the City of such changes no later
than 30 days after the change.
2.
Any license granted pursuant to this chapter shall not convey equitable or legal title in the ROW, and may not be assigned or transferred except as permitted in subsection M of this section.
3.
Neither
the issuance of the license, nor any provisions contained therein,
shall constitute a waiver or bar to the exercise of any governmental
right or power, including, without limitation, the police power or
regulatory power of the City in existence at the time the license
is issued or thereafter obtained.
I.
Term
Subject to the termination provisions in subsection O of this section, the license granted pursuant to this chapter will be effective as of the date it is issued by the City or the date services began, whichever comes first, and will have a term of five calendar years beginning: (1) January 1st of the year in which the license took effect for licenses that become effective between January 1st and June 30th; or (2) January 1st of the year after the license took effect for licenses that become effective between July 1st and December 31st.
J.
License
Nonexclusive
No license granted pursuant to this section shall confer any
exclusive right, privilege, license or franchise to occupy or use
the ROW 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 ROW, for similar or different purposes. The license is subject
to all recorded deeds, easements, dedications, conditions, covenants,
restrictions, encumbrances, and claims of title of record that may
affect the ROW. Nothing in the license shall be deemed to grant, convey,
create, or vest in licensee a real property interest in land, including
any fee, leasehold interest or easement.
K.
Reservation
of City Rights
Nothing in the license shall be construed to prevent the City from grading, paving, repairing or altering any ROW, 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. If any of licensee's utility facilities interfere with the construction, repair, replacement, alteration or removal of any ROW, public work, City utility, City improvement or City facility, except those providing utility services in competition with a licensee, licensee's facilities shall be removed or relocated as provided in subsections C, D and E of Section 21.04.100, in a manner acceptable to the City and consistent with City standards, industry standard engineering and safety codes.
L.
Multiple
Services
1.
A utility operator that provides or transmits or allows the provision or transmission of utility services and other services over its facilities is subject to the license and ROW usage fee requirements of this chapter for the portion of the facilities and extent of utility services delivered over those facilities. Nothing in this subsection (L)(1) requires a utility operator to pay the ROW usage fee, if any, owed to the City by a third party using the utility operator's facilities.
2.
A
utility provider that provides or transmits more than one utility
service to customers in the city may not be required to obtain a separate
license or franchise for each utility service, but is required to
file separate remittance forms and submit any ROW usage fees due for
each utility service provided.
M.
Transfer
or Assignment
To the extent permitted by applicable state and federal laws,
the licensee shall obtain the written consent of the City prior to
the transfer or assignment of the license. The license shall not be
transferred or assigned unless;
1.
The
proposed transferee or assignee is authorized under all applicable
laws to own or operate the utility facilities and/or provide the utility
service authorized under the license; and
2.
The
transfer or assignment is approved by all agencies or organizations
required or authorized under federal and state laws to approve such
transfer or assignment.
The provider requesting the transfer or assignment must cooperate
with the City and provide requested documentation, as the City deems
necessary, in the City's sole discretion, at no cost to the City,
to sufficiently understand the transferees' ability to perform under
the license.
If the City approves such transfer or assignment, the transferee
or assignee shall become responsible for fulfilling all obligations
under the license. A transfer or assignment of a license does not
extend the term of the license.
N.
Renewal
At least 30, but no more than 120, days prior to the expiration of a license granted pursuant to this section, a licensee seeking renewal of its license shall submit a license application to the City, including all information required in subsection B of this section and the application fee required in subsection C of this section. The City shall review the application as required by subsection D of this section and grant or deny the license within 90 days of submission of the application. 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 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. If the City requires the licensee to cure or submit a plan to cure a violation, the City will grant or deny the license application within 90 days of confirming that the violation has been cured or of accepting the licensee's plan to cure the violation.
O.
Termination
1.
Revocation
or Termination of a License
The City may terminate or revoke the license granted pursuant
to this chapter for any of the following reasons:
a.
Violation of any of the provisions of this chapter;
b.
Violation of any provision of the license;
c.
Misrepresentation in a license application;
d.
Failure to pay taxes, compensation, fees or costs due to the City
after final determination by the City, of the taxes, compensation,
fees or costs;
e.
Failure to restore the ROW as required by this chapter or other applicable
state and local laws, ordinances, rules and regulations;
f.
Failure to comply with technical, safety and engineering standards
related to work in the ROW; or
g.
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.
2.
Standards
for Revocation or Termination
In determining whether termination, revocation or some other
sanction is appropriate, the following factors shall be considered:
3.
Notice
and Cure
The City shall give the licensee written notice of any apparent
violations before terminating a license. The notice shall include
a short and concise statement of the nature and general facts of the
violation or noncompliance and provide a reasonable time (no less
than 20 and no more than 40 days) for the licensee to demonstrate
that the licensee has remained in compliance, or that the licensee
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 licensee is in
the process of curing a violation or noncompliance, the licensee must
demonstrate that it acted promptly and continues to actively work
on compliance. If the licensee does not respond or if the City determines
that the licensee's response is inadequate, the City 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
and if any penalties or sanctions will be imposed.
4.
Termination
by Licensee
If a licensee ceases to use the ROW, as defined under this chapter,
the licensee may terminate its license, with 30 day notice to the
City. The licensee may reapply for a ROW license at any time. No refunds
or credits will be given for licenses terminated by the licensee or
the City.
a.
Within 30 days of ceasing use of the ROW, licensee must file a final
remittance form with the City stating, "final remittance."
(Ord. 2131 § 3, 2016; Ord. 2164 § 1, 2018)
A.
Construction
Codes
Utility facilities shall be constructed, installed, operated,
repaired and maintained in accordance with all applicable federal,
state and local codes, rules and regulations, including the City standards,
the National Electrical Code, the National Electrical Safety Code,
and the City standards, in effect at the time of the work. When a
utility operator, or any person acting on its behalf, does any work
in or affecting the ROW, the utility operator shall, at its own expense,
promptly restore the ROW as directed by the City consistent with applicable
City codes, rules and regulations, and the City standards, in effect
at the time of the work. A utility operator, utility provider, licensee
or other person acting on its behalf must use suitable barricades,
flags, flagging attendants, lights, flares or other measure as required
for the safety of the general public and to prevent injury or damage
to any person(s), vehicle or property by reason of such work in or
affecting the ROW or property.
B.
Construction
Permits
1.
No
person shall perform any work on utility facilities within the ROW
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 applied for and received a valid license, registration, and franchise
agreement (if applicable), required by this chapter, and all applicable
fees have been paid. No permit is required for routine maintenance
or repairs to customer service drops where such repairs or maintenance
do not require cutting, digging, breaking, or damage to, the ROW and
do not result in closing or blocking any portion of the travel lanes
for vehicular traffic, bicycle lanes, or sidewalks.
2.
In
the event of an emergency, a utility operator with a license pursuant
to this chapter or its contractor may perform work on its utility
facilities without first obtaining a permit from the City, provided
that, to the extent reasonably feasible, it attempts to notify the
City prior to commencing the emergency work and in any event applies
for a permit from the City as soon as reasonably practicable, but
not later than 5:00 p.m. PST of the next business day after commencing
the emergency work.
3.
Applications
for permits to perform work on utility facilities within the ROW shall
be submitted upon forms to be provided by the City and shall be accompanied
by drawings, plans and specifications in sufficient detail to demonstrate:
a.
That the facilities will be constructed in accordance with all applicable
codes, rules, and regulations.
b.
The location and route of all utility facilities to be installed
above ground or on existing utility poles.
c.
The location and route of all the applicant's utility facilities
on or in the ROW 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 ROW. Applicant's existing utility facilities
shall be differentiated on the plans from new construction. The City
may require additional information necessary to demonstrate that the
purposed location can accommodate the utility facilities, as reasonably
determined by the City. A cross section shall be provided showing
applicant's new or existing utility facilities in relation to the
street, curb, sidewalk, or ROW.
d.
The construction methods to be employed for work within or adjacent
to the ROW, description of any improvements that applicant proposes
to temporarily or permanently remove or relocate, and if deemed necessary
by the City, methods to be employed for protection of existing structures,
fixtures, and facilities within or adjacent to the ROW.
e.
The permittee has an adequate traffic control plan.
4.
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. The
City may, in its sole discretion, require the verification of a registered
professional engineer or other licensed professional, at no cost to
the City.
5.
All
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 City.
6.
In
addition to the requirements of this chapter, the applicant shall,
at all times, comply with all other City requirements.
7.
If
satisfied that the applications, plans, and documents submitted comply
with all requirements of this chapter, the City shall issue a permit
authorizing construction of the utility facilities, subject to such
additional conditions, restrictions, or regulations affecting the
time, place, and manner of performing the work as the City may deem
necessary or appropriate.
8.
Except
in the case of an emergency, the permittee shall notify the City not
less than two working days in advance of any excavation or construction
in the ROW.
9.
All
construction practices and activities shall be in accordance with
the permit and final plans and specifications for the utility facilities
that have been "Approved for Construction" by the City. The City and
its representatives shall be provided access to the work site and
such further information as they may require or deem appropriate to
ensure compliance with such requirements.
10.
All work which does not comply with the permit, the approved or corrected
plans, and specifications for the work, or the requirements of this
chapter, shall be removed or corrected at the sole expense of the
permittee. The City is authorized to stop work in order to ensure
compliance with the provision of this chapter. If the permittee fails
to remove or correct work as required in this subsection, the City
may remove or correct the work at the expense of the permittee, after
notice and opportunity to cure, using qualified personnel or contractors
consistent with applicable state and federal safety laws and regulations.
11.
The permittee shall be responsible for providing correct and complete
information. If the City believes the permittee misrepresented, misstated,
or omitted any material fact(s) in its permit application, the City
may deny or revoke the permit. The City may at any time require the
permit holder to take additional measures to protect the health, safety,
and welfare of the public. The permit holder shall be responsible
for and pay all costs for such measures.
12.
The permittee shall promptly complete all construction activities
so as to minimize disruption of the ROW and other public and private
property. All construction work within the ROW, including restoration,
must be completed within 180 days of the date of issuance of the construction
permit unless an extension or an alternate schedule has been approved
by the City.
13.
Traffic Control Plan
The permittee shall protect the work area with sufficient traffic
controls reviewed and accepted by the City before work begins. The
permittee shall at all times ensure the presence of such workers,
tools and materials, flaggers, barricades, and other safety devices
as may be necessary to properly protect bicyclists, pedestrians, construction
personnel, and vehicular traffic upon the roadway, and to warn and
safeguard the public against injury or damage resulting from the work.
14.
Any supervision or control exercised by the City shall not relieve
the permittee or utility operator of any duty to the general public
nor shall such supervision or control relieve the permittee or utility
operator from any liability for loss, damage, or injury to persons
or property.
C.
Performance
Surety
1.
The
City may require a performance bond or other form of surety acceptable
to the City equal to at least 100% of the estimated cost of the work
within the ROW, which bond shall be provided before construction is
commenced.
2.
If
required, the performance bond or other form of surety acceptable
to the City shall remain in force until 60 days after substantial
completion of the work, as determined in writing by the City, including
restoration of ROW and other property affected by the construction.
3.
If
required, the performance bond or other form of surety acceptable
to the City shall guarantee, to the satisfaction of the City:
a.
Timely completion of the work;
b.
That the work is performed in compliance with applicable plans, permits,
technical codes, and City standards;
c.
Proper location of the facilities as specified by the City;
d.
Restoration of the ROW and other property affected by the work; and
e.
Timely payment and satisfaction of all claims, demands or liens for
labor, material, or services provided in connection with the work.
4.
The release of the performance bond or other surety pursuant to subsection (C)(1) of this section does not relieve the utility operator from its obligation to restore the ROW or other property as required in subsection E of this section regardless of when the failure to restore the ROW or other property as required by this chapter occurs or is discovered.
D.
Injury
to Persons or Property
A utility operator, or any person acting on its behalf, shall
preserve and protect from injury or damage other utility operators'
facilities in the ROW, the public using the ROW and any adjoining
property, and take other necessary measures to protect life and property,
including, but not limited to, buildings, walls, fences, trees or
facilities that may be subject to damage from the permitted work.
A utility 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
in the ROW.
E.
Restoration
1.
When
a utility operator, or any person acting on its behalf, does any work
in or affecting any ROW, it shall, at its own expense, promptly restore
such ROW 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, in effect at the
time of the work, unless otherwise directed by the City.
2.
If
weather or other conditions beyond the utility operator's control
do not permit the complete restoration required to the affected ROW,
the utility operator shall temporarily restore the affected area.
Such temporary restoration shall be at the utility operator's sole
expense and the utility 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 is subject to approval by the City.
3.
If
the utility operator fails to restore the ROW as required in this
chapter, the City shall give the utility operator written notice and
provide the utility operator a reasonable period of time of not less
than 10 days, unless an emergency or threat to public safety is deemed
to exist, and not exceeding 30 days to restore the ROW. If, after
said notice, the utility operator fails to restore the ROW as required
in this chapter, unless the City's has given its express written permission
for a time extension, the City shall cause such restoration to be
made at the expense of the utility operator. If the City determines
a threat to public safety exists, the City shall provide necessary
temporary safeguards, at the utility operators' sole expense. If such
threat exists the utility operator shall have 24 hours to commence
restoration. If work is not commenced in 24 hours, the City, at its
sole option, may commence restoration at the utility operator's sole
expense.
F.
Inspection
Every utility operator's facilities shall be subject to the
right of periodic inspection by the City to determine compliance with
the provisions of this chapter and all other applicable state and
City codes, ordinances, rules and regulations. Every utility operator
shall cooperate with the City in permitting the inspection of utility
facilities upon request of the City. The utility operator shall perform
all testing, or permit the City to perform any testing at the utility
operator's expense, required by the City to determine that the installation
of the utility operator's facilities and the restoration of the ROW
comply with the terms of this chapter and applicable state and City
codes, ordinances, rules and regulations.
G.
Coordination
of Construction
All utility operators are required to make a good faith effort
to both cooperate with and coordinate their construction schedules
with those of the City and other users of the ROW.
1.
Prior
to January 1st of each year, utility operators shall provide, to the
City's ROW department, a written schedule of known proposed construction
activities for that the upcoming year, in and around, or that may
affect the ROW.
2.
All
construction locations, activities, and schedules within the ROW shall
be coordinated as may be ordered by the City, to minimize public inconvenience,
disruption, or damages.
H.
Contractors
A utility operator may authorize a qualified contractor to perform
any of the work authorized or required in this chapter on the utility
operator's behalf. Any contractor performing work on behalf of a utility
operator shall be subject to the provisions of this chapter. In the
event a utility operator authorizes a contractor to perform work on
its behalf, the utility operator shall remain responsible and liable
for compliance with the provisions of this chapter.
(Ord. 2131 § 3, 2016; Ord. 2164 § 1, 2018)
A.
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 ROW of the City, the utility
operator with permission to occupy the same ROW shall install all
new facilities underground at no cost to the City. This requirement
shall not apply to facilities used for transmission of electric energy
at nominal voltages in excess of 35,000 volts or to antennas, pedestals,
cabinets, or other above-ground equipment of any utility operator
for which the utility operator has written authorization to place
above ground.
B.
Interference
With the ROW
No utility operator or other person may locate or maintain its
facilities so as to unreasonably interfere with the use of the ROW
by the City, by the general public, or by other persons authorized
to use or be present in or upon the ROW. Utility facilities shall
not be located in areas of restricted sight distance nor interfere
with the proper function of traffic control signs, signals, lighting,
or other devices that affect traffic operation. All use of the ROW
shall be consistent with City codes, ordinances, rules, and regulations
in effect and as may be subsequently amended.
C.
Relocation
of Utility Facilities
1.
A
utility operator shall, at no cost to the City, temporarily or permanently
remove, relocate, change or alter the position of any utility facility
within a ROW, including relocation of aerial facilities underground,
when requested to do so in writing by the City.
a.
If relocation is required by the City, the City shall bear no responsibility
or incur any costs, to provide or in any way secure alternate locations.
2.
Nothing
herein shall be deemed to preclude the utility operator from requesting
reimbursement or compensation from a third party, pursuant to applicable
laws, regulations, tariffs or agreements, provided that the utility
operator shall timely comply with the requirements of this section
regardless of whether or not it has requested or received such reimbursement
or compensation.
3.
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 utility operator must remove, relocate, change, alter
or underground its facilities. If a utility operator fails to remove,
relocate, alter or underground any utility facility as requested by
the City and by the date reasonably established by the City, the utility
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 personnel or contractors consistent
with applicable state and federal safety laws and regulations, the
utility facility to be removed, relocated, altered, or undergrounded
at the utility operator's sole expense. Upon receipt of a detailed
invoice from the City, the utility operator shall reimburse the City
for the costs the City incurred within 30 days.
4.
The
City will cooperate with the utility operator in securing alternate
locations within the ROW. The City shall bear no responsibility to
obtain, compensate, or otherwise assist the utility operator in relocation
of its facilities to locations not in the control of the City.
D.
Removal
of Unauthorized Facilities
1.
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 by the City, a utility operator and any other person that owns, controls, or maintains any unauthorized utility facility within the ROW shall, at its own expense, remove the facility and restore the ROW as provided in Section 21.04.090.
2.
A
utility facility, or any portion of the facility, is unauthorized
under any of the following circumstances:
a.
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.
b.
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.
A utility operator may overcome this presumption by presenting plans
for future use of the facility.
c.
The utility facility is improperly constructed or installed or is
in a location not permitted by the construction permit, license, franchise,
or this chapter.
d.
The utility 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.
E.
Removal
by City
1.
The
City retains the right and privilege to cut or move any utility facilities
located within the ROW, 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 practical without impeding the City's response
to the emergency. The City will notify the utility operator of any
cutting or moving of facilities as soon as reasonably practical after
resolution of the emergency.
2.
If
the utility 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 utility 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, the utility 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.
3.
The City shall not be liable to any utility operator for any damage to utility facilities, or for any consequential losses resulting directly or indirectly therefrom, by the City or its contractor in removing, relocating or altering the facilities pursuant to subsections B, C or D of this section or undergrounding its facilities as required by subsection A of this section, or resulting from the utility operator's failure to remove, relocate, alter, or underground its facilities as required by those subsections, unless such damage arises directly from the City's negligence or willful misconduct.
F.
Engineering
Designs and Plans
The utility operator shall provide the City with two complete
sets of engineered plans in a form acceptable to the City showing
the location of all its utility facilities in the ROW after initial
construction if such plans changed during construction. The utility
operator shall provide two updated complete sets of 'as built' plans
upon request of the City, but not more than once per year.
G.
Utility
operator, utility provider, and licensee shall provide, at no cost
to the City, a comprehensive map showing the location of any facilities
in the city. Such map shall be provided in a format acceptable to
the City, with accompanying data sufficient enough for the City to
determine the exact location of facilities, currently in Shapefile
or geodatabase format. The City may not request such information more
than once per year.
(Ord. 2131 § 3, 2016; Ord. 2164 § 1, 2018)
A utility operator may lease capacity on or in its facilities
to others, provided that, upon request, the utility operator provides
the City with the name and business address of any lessee. A utility
operator is not required to provide such information if disclosure
is prohibited by applicable law. A utility operator shall require
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.
(Ord. 2131 § 3, 2016; Ord. 2164 § 1, 2018)
A.
Every
utility operator shall install and maintain all facilities in a manner
that complies with applicable federal, state and local laws, rules,
regulations, and policies. The utility operator shall, at its own
expense, repair and maintain facilities from time to time as may be
necessary to accomplish this purpose.
B.
If, after written notice from the City of the need for repair or maintenance as required in subsection A of this section, a utility operator fails to repair and maintain facilities as requested by the City and by the date reasonably established by the City, the City may perform such repair or maintenance using qualified personnel or contractors consistent with applicable state and federal safety laws and regulations at the utility operator's sole expense. Upon receipt of a detailed invoice from the City, the utility operator shall reimburse the City for the costs the City incurred within 30 days.
(Ord. 2131 § 3, 2016; Ord. 2164 § 1, 2018)
If the City vacates any ROW, or portion thereof, that a utility
operator uses, the utility operator shall, at its own expense, remove
its facilities from the ROW unless the City reserves a public utility
easement, which the City shall make a reasonable effort to do, provided
that there is no expense to the City, or the utility operator obtains
an easement for its facilities. If the utility operator fails to remove
its facilities within 30 days after a ROW is vacated, or as otherwise
directed or agreed to in writing by the City, the City may remove
the facilities using qualified personnel or contractors consistent
with applicable federal, state and local laws, rules, regulations,
and policies, at the utility operator's sole expense. Upon receipt
of an invoice from the City, the utility operator shall reimburse
the City for the costs the City incurred within 30 days.
(Ord. 2131 § 3, 2016; Ord. 2164 § 1, 2018)
A.
Except as set forth in subsection B of this section every person that owns utility facilities in the city and every person that uses utility facilities in the city to provide utility service, whether or not the person owns the utility facilities used to provide the utility services, shall pay the right-of-way usage fee for every utility service provided using the ROW in the amount determined by resolution of the City Council.
B.
A utility
operator whose only facilities in the ROW are facilities mounted on
structures within the ROW, which structures are owned by another person,
and with no facilities strung between such structures or otherwise
within, under or above the ROW (other than equipment necessary to
operate the mounted facilities that has been expressly approved by
the City to be placed in the ROW), shall pay an attachment fee set
by City Council resolution for each attachment, or such other fee
set forth in the license granted by the City. Unless otherwise agreed
to in writing by the City, the fee shall be effective as of January
1, 2017, and shall be paid quarterly, in arrears, within 30 days after
the end of each calendar quarter, and shall be accompanied by information
sufficient to illustrate the calculation of the amount payable.
C.
No
acceptance of any payment shall be construed as accord that the amount
paid is in fact the correct amount, nor shall such acceptance of payment
be construed as a release of any claim the City may have for further
or additional sums payable.
D.
Unless otherwise agreed to in writing by the City, the right-of-way usage fee set forth in subsection A of this section shall be effective as of January 1, 2017, and shall be paid quarterly, in arrears, within 30 days after the end of each calendar quarter. Each payment shall be accompanied by an accounting of gross revenues, if applicable, and a calculation of the amount payable. The City may request, and will be provided at no cost to the City, any additional reports or information it deems necessary, in its sole discretion, to ensure compliance by the utility provider, utility operator or licensee. Such information may include, but is not limited to: chart of accounts, total revenues by categories and dates, list of products and services, narrative documenting calculations, details on number of customer within the city limits, or any other information needed for the City to easily verify compliance.
Usage Fees Due Prior to December 31, 2018
In the event that a right-of-way usage fee is not received by
the City on or before the due date, or is underpaid, the utility provider
shall pay in addition to the payment, or sum due, interest from the
due date at a rate equal to 9% per annum, compounded daily, or current
maximum rate allowed by state law, computed based on the actual number
of days elapsed from the due date until payment is received by the
City.
E.
The
calculation of the right-of-way usage fee required by this section
shall be subject to all applicable limitations imposed by federal
or state law in effect and as may be subsequently amended.
F.
The
City reserves the right to enact other fees and taxes applicable to
the utility providers, utility provider and licensee 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 utility
operator, utility provider, or licensee may deduct, offset or otherwise
reduce or avoid the obligation to pay any lawfully enacted fees or
taxes based on the payment of the right-of-way usage fee or any other
fees required by this chapter.
(Ord. 2131 § 3, 2016; Ord. 2164 § 1, 2018)
This section only applies to ROW usage payments due after January
1, 2019.
A.
Penalties and interest imposed by this section are in addition to any penalties that may be assessed under Section 21.04.200.
B.
Any person who has not submitted the required remittance forms or remitted the correct fees when due as provided in Section 21.04.140 shall pay a penalty listed below in addition to the amount due:
1.
First
occurrence during any one calendar year:
Ten percent of the amount owed, or $25, whichever is greater.
2.
Second
occurrence during any one calendar year:
Fifteen percent of the amount owed, or $50, whichever is greater.
3.
Third
occurrence during any one calendar year:
Twenty percent or the amount owed, or $75, whichever is greater.
4.
Fourth
occurrence during any one calendar year:
Twenty-five percent of the amount owed, or $100, whichever is
greater.
C.
If
the City determines that the nonpayment of any remittance due under
this section is due to fraud or intent to evade the provisions hereof,
an additional penalty of 25% of the amount owed, or $500, whichever
is greater, shall be added thereto in addition to other penalties
stated in this section.
D.
In addition to the penalties imposed, any person who fails to remit any fee when due as provided in Section 21.04.140 shall pay interest at the rate of one and one-half percent (1.5%) per month or fractions thereof, without proration for portions of a month, on the total amount due (including penalties), from the date on which the remittance first became delinquent, until received by the City.
E.
Every
penalty imposed, and such interest as accrues under the provision
of this section, shall be merged with, and become part of, the fee
required to be paid.
|
The City Manager or designee, in their sole discretion, shall
have the authority to reduce or waive the penalties and interest due
under this section.
|
(Ord. 2164 § 1, 2018)
A.
Within
30 days of a written request from the City, or as otherwise agreed
to in writing by the City:
1.
Every
licensee, utility operator and provider shall furnish the City, at
no cost to the City, information sufficient to demonstrate that the
provider is in compliance with all the requirements of this chapter
or its franchise agreement, if any, including, but not limited to,
payment of any applicable business registration fee, license fee,
right-of-way usage fee, attachment fee, or franchise fee.
2.
Every
utility operator, provider and licensee 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 utility operator
with respect to its facilities within the city's ROW. Access shall
be provided within the city, unless prior arrangement for access elsewhere
has been made with the City.
B.
If the City's audit of the books, records and other documents or information of the licensee, utility operator or provider demonstrate that the licensee, utility operator or provider has underpaid the right-of-way usage fee, license fee, attachment fee, franchise fee, or any other fee or payment by 3% or more in any one year, the licensee, utility operator, or provider shall reimburse the City for the cost of the audit, in addition to any interest owed pursuant to Section 21.04.145 or as specified in other agreements or franchises with the City.
C.
Any
underpayment, including any interest or audit cost reimbursement,
shall be paid within 30 days of the City's notice to the licensee,
utility provider or operator of such underpayment.
D.
The
licensee, utility provider or utility operator is not required to
maintain records for more than six years. The City is not required
to maintain records beyond the state retention schedules.
(Ord. 2131 § 3, 2016; Ord. 2164 § 1, 2018)
A.
Insurance
1.
All
utility operators shall maintain in full force and effect the following
liability insurance policies that protect the utility operator and
the City, as well as the City's officers, agents, and employees:
b.
Commercial automobile liability insurance for owned, non-owned and
hired vehicles with a limit of two million dollars ($2,000,000.00)
combined single limit.
c.
Worker's compensation within statutory limits and employer's liability
with limits of not less than one million dollars ($1,000,000.00).
d.
Liability insurance shall name as additional insured the City and
its officers, agents, and employees. Additional insured coverage shall
be for both ongoing operations and products and completed operations,
on forms acceptable to the City. Coverage shall be primary and non-contributory.
Waiver of subrogation endorsement, in a form acceptable to the City,
shall be provided for general liability and worker's compensation.
2.
The
limits of the insurance shall be subject to statutory changes as to
maximum limits of liability imposed on municipalities of the State
of Oregon. The insurance shall be without prejudice to coverage otherwise
existing. The coverage must apply as to claims between insureds on
the policy. The insurance shall not be canceled or materially altered
without 30 days prior written notice first being given to the City.
If the insurance is canceled or materially altered, the utility operator
shall obtain a replacement policy that complies with the terms of
this section and provide the City with a replacement certificate of
insurance. The utility operator shall maintain continuous uninterrupted
coverage, in the terms and amounts required. The utility operator
may self-insure, or keep in force a self-insured retention plus insurance,
for any or all of the above coverage.
3.
The
utility operator shall maintain on file with the City a certificate
of insurance or proof of self-insurance acceptable to the City, certifying
the coverage required above.
B.
Financial
Assurance
Unless otherwise agreed to in writing by the City, before a franchise is granted or license issued pursuant to this chapter is effective, and as necessary thereafter, a utility operator shall provide a performance bond or other financial security or assurance, in a form acceptable to the City, as security for the full and complete performance of the franchise or license, if applicable, and compliance with the terms of this chapter, including any costs, expenses, damages or loss the City pays or incurs because of any failure that is attributable to the utility operator to comply with the codes, ordinances, rules, regulations or permits of the City. This obligation is in addition to the performance surety required by subsection C of Section. 21.04.090.
C.
Indemnification
1.
To the fullest extent permitted by law, each utility operator shall defend, indemnify, and hold the City and its officers, employees, agents and representatives harmless 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 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 Section 21.04.080 of this chapter shall constitute such an agreement by the applicant whether the same is expressed or not. Upon notification of any such claim the City shall notify the utility operator and provide the utility operator with an opportunity to provide defense regarding any such claim.
2.
Every
utility 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 utility
operator's failure to remove or relocate any of its facilities in
the ROW in a timely manner, unless the utility operator's failure
arises directly from the City's negligence or willful misconduct.
(Ord. 2131 § 3, 2016; Ord. 2164 § 1, 2018)
Every licensee, utility operator and utility provider 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 entire term of any license, registration, franchise, or agreement
granted under this chapter.
(Ord. 2131 § 3, 2016; Ord. 2164 § 1, 2018)
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, and such books, records,
maps, or information are clearly marked as confidential at the time
of disclosure to the City ("confidential information"), the City shall
take reasonable steps to protect the confidential information to the
extent permitted by Oregon Public Records Laws. In the event the City
receives a public records request to inspect any confidential information
and the City determines that it will be necessary to reveal the confidential
information, to the extent reasonably possible the City will notify
the person that submitted the confidential information of the records
request prior to releasing the confidential information. The City
shall not be required to incur any costs to protect any confidential
information, other than the City's routine internal procedures for
complying with the Oregon Public Records Law.
(Ord. 2131 § 3, 2016; Ord. 2164 § 1, 2018)
A.
Any
person found in violation of any of the provisions of this chapter
or the right-of-way license shall be subject to a penalty of not less
than $150 nor more than $2,500 for each offense. A violation shall
be deemed to exist separately for each and every day during which
a violation exists.
B.
Nothing
in this chapter shall be construed as limiting any judicial or other
remedies the City may have at law or in equity, for enforcement of
this chapter.
(Ord. 2131 § 3, 2016; Ord. 2164 § 1, 2018)
A.
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.
B.
If
any article, section, subsection, sentence, clause, phrase, term,
provision, condition, 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,
clause, phrase, term, provision, condition, covenant, and 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. 2131 § 3, 2016; Ord. 2164 § 1, 2018)
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 utility operators by the City.
(Ord. 2131 § 3, 2016; Ord. 2164 § 1, 2018)
