Ordinance No. 2004-01 of the City of Port Orford (hereinafter
referred to as "City") is hereby repealed; said repeal is effective
on the date of passage of the ordinance codified in this chapter.
The respective claims of the City of Port Orford and Coos-Curry Electric
Cooperative, Inc. (hereinafter referred to as "grantee"), under said
Ordinance No. 2004-01 shall be settled between said parties as of
the date that the grantee shall have accepted the franchise herein
provided in this chapter, said acceptance being in written form provided
the City by a duly authorized resolution of the grantee's governing
board.
(Ord. 2023-18 § 1, 2023)
There is hereby granted by the City of Port Orford ("City")
to the Coos-Curry Electric Cooperative, Inc. ("grantee"), the non-exclusive
right, privilege and franchise of installing, owning, operating, and
maintaining an electric power service transmission and distribution
system by means of poles, conduits, wires, cables, and other equipment
or appliances in, upon, over, under and along the streets, alleys
or other public places within the corporate limits of the City of
Port Orford.
(Ord. 2023-18 § 1, 2023)
In case of an emergency, it shall be lawful for the grantee
to make all needful excavations and erections in any public right-of-way
in the City for the purpose of repairing and maintaining the grantee's
electric service facilities, including existing poles or other supports
or conduits for wires, whether copper, fiber optic or other technology,
and appliances and auxiliary equipment without a public works permit.
All emergency maintenance and repair work, erections of poles and
appliances and laying of wires shall be done in compliance with such
applicable rules, regulations, ordinances, or orders in effect at
the time of the work.
The grantee shall notify the City Public Works and Development Services Department ("Public Works Department") of any emergency repair and maintenance work as soon as reasonably practicable, and in any event within 48 hours. Any act done by any contractor or subcontractor contracting with the grantee shall, for the purpose of this franchise, be deemed to be the act of the grantee. All work shall be maintained against defects in material and workmanship and, depending on the extent of the work, may require additional sureties as defined in Section 3.20.040.
(Ord. 2023-18 § 1, 2023)
Except as expressly set forth in this chapter, prior to commencing
ordinary construction, extension, or installation of electric services
by means of poles, conduits, wires, cables, and other equipment or
appliances, or relocation of any of the grantee's electric services
facilities in the public rights-of-way within the City, the grantee
shall obtain a public works permit by submitting to the City's Public
Works Department representatives a plan showing the location of the
proposed construction, extension or relocation for purposes of utility
location. Construction shall be in accordance with the City ordinances,
rules, and requirements and Call Before You Dig requirements of the
Oregon Revised Statutes. The grantee shall obtain approval from the
City Public Works Department via a public works permit, and meet with
the Public Works Department representative, if requested prior to
commencement of such construction. Permit applications shall be signed
by an authorized representative of the grantee and include a map or
blueprint showing the location of all proposed excavations, pipes,
conduits, or other apparatus. Any act done by any contractor or subcontractor
contracting with the grantee shall, for the purpose of this franchise,
be deemed to be the act of the grantee. All work shall be maintained
against defects in materials and workmanship.
When the City reasonably determines that the nature and performance
of the grantee's work in the City requires separate assurance that
the work will be complete or that the work shall be maintained against
defects in material or workmanship, the City may require the grantee
to furnish to the City a performance or maintenance bond for the estimated
value of all the work for the stated interval to ensure compliance
by the grantee with rules, regulations, ordinances, and orders of
the Council relating to its operations within the City as provided
for under this section, after the receipt of notice and an opportunity
for grantee to cure any defect.
The grantee must comply with applicable City ordinances, resolutions,
rules, and orders that generally apply to the reasonable management
of the safety and use of public rights-of-way within the City as such
requirements exist at the time of the grantee's work. However, by
entering this agreement, the grantee is not waiving its right to challenge
or otherwise dispute the legality, validity, or enforceability of
any changes to City ordinances, resolutions, rules, or orders enacted
after the effective date. In addition, to the extent permitted by
law, this franchise does not require the grantee to comply with existing
or future ordinances, resolutions, rules, or orders that conflict
with any specific provision of this franchise.
The word "applicable," as used in this paragraph, shall mean
such rules, regulations, ordinances or orders as the City Council
may deem necessary to manage the safety of the public right-of-way
and to protect the public and any member of the public residing within
the City, who might be affected by any excavation work or installation
of the grantee.
The grantee shall furnish to the City, and maintain a current
copy on file, a certificate of insurance insuring against the risks
of personal injury, bodily injury and property damage in the minimum
amounts and coverage provided for by City ordinances as of the effective
date, naming the City as additional insured against those risks for
any act or omission that is not a negligent or intentional wrongful
act of the City and including the following statement: "It is hereby
understood and agreed that this policy may not be canceled nor the
intention not to renew be stated until 30 days after receipt by the
City, by registered mail, of a written notice addressed to the City
of such intent to cancel or not to renew."
The grantee shall not be required to obtain prior approval or
provide notice of construction, permit applications or maps/ blueprints
for: (1) customer service connections/drops, repairs or maintenance
that do not require installation of facilities in the public right-of-way,
altering, cutting or breaking of the roadway, curb or side-walk; or
(2) routine maintenance or repair of above-ground equipment, and the
installation of new replacement cables or wires on existing aerial
facilities, when the installation, maintenance or repair will not
impact vehicular traffic by closing or blocking a lane of vehicular
travel for more than two hours.
If requested by the City, the grantee shall furnish the City
with record drawings as maintained in the ordinary course of business
showing the grantee's facilities within the public right-of-way in
a format (electronic or hard copy) acceptable to City and the grantee
within 60 days after such work is complete. Drawings shall be certified
by an authorized representative of the grantee and the grantee shall
not be required to have the drawings signed or stamped by a registered
or professional engineer. While it is not anticipated that the furnishing
of record drawings would require disclosure of sensitive proprietary
information of the grantee, in the event that such sensitive proprietary
information is nevertheless included and the grantee requests confidentiality
of such information the City will maintain confidentiality of such
sensitive proprietary information to the extent permitted under Oregon
Public Records Law, including, without limitation, ORS 192.355(4).
(Ord. 2023-18 § 1, 2023)
Whenever the grantee shall disturb any public right-of-way,
it shall restore the same to a condition as specified in the current
version of the City of Port Orford Engineering Requirements and Standard
Specification for Public Works Infrastructure equal to the condition
which existed prior to construction, unless the City allows the grantee
to restore such area to a lesser standard, as soon as practical without
unnecessary delay, and failing to do so in a timely manner, the City
shall have the right to set a reasonable time within which such repairs
and restoration of streets and other public places shall be completed,
and to notify the grantee in writing of its time requirement for repair
and restoration, and upon failure of such repairs being made by the
grantee, within the time so reasonably prescribed, the City may cause
such repairs to be made at the expense of the grantee, after having
provided the grantee with written notice and a reasonable opportunity
to cure.
The City may cause the grantee to remove or relocate any pole,
underground conduit or equipment belonging to the grantee, including
relocating aerial facilities to an underground location, whenever
the relocation is for public necessity, and the cost shall be borne
proportionately by the grantee and other utilities being concurrently
relocated as coordinated and adjudicated by the City unless such cost
is chargeable by law or tariff to another party, or necessitated for
the benefit of a third party other than the City.
Whenever it is a public necessity to remove a pole, underground
conduit, or equipment belonging to the grantee or on which a wire
or circuit of the grantee is stretched or fastened, the grantee shall,
upon 60 days' written notice from the City, meet with City representatives
and agree in writing to a plan and date certain to remove such poles,
underground conduit, equipment, wire, or circuit at the grantee's
expense. If the grantee fails, neglects, or refuses to do so, the
City may remove it at the grantee's expense.
"Relocation for public necessity" means removal or relocation
to accommodate the construction or reconstruction of transportation
roadways and the construction or reconstruction of public improvements
and infrastructure, including, but not limited to, water and sewer
facilities. It shall not include the relocation to accommodate private
or third-party construction of public infrastructure that is required
as a condition of approval of private property development or redevelopment.
When facilities are relocated for the benefit of a third party as
described in the previous sentence, the cost shall be borne by the
party requesting relocation. Nothing herein shall be deemed to preclude
the City from agreeing in writing, in its sole discretion, to contribute
to utility operators' costs for such relocation.
(Ord. 2023-18 § 1, 2023)
Nothing in this franchise shall be construed in any way to prevent
the proper authorities of the City from putting in a water or sewer
system, grading, rocking, paving, repairing, altering or improving
any of the public right-of-way within the City in or upon which the
poles, wires, or other conductors of the grantee shall be placed,
but all such work or improvements shall be done, if possible, so as
not to obstruct or prevent the grantee's use of said poles, wires,
conductors, conduits, pipes or other apparatus.
(Ord. 2023-18 § 1, 2023)
Whenever it becomes necessary to temporarily rearrange, remove,
lower, or raise the wires, cables, or other plant of the grantee for
the passage of buildings, machinery or other objects, the grantee
shall temporarily rearrange, remove, lower or raise its wires, cables
or other plant as the necessities of the case require; provided, however,
that the City shall not require any such action of the grantee until
the person or persons desiring to move any such buildings, machinery
or other objects, agrees to pay the entire actual cost to the grantee
of changing, altering, moving, removing or replacing its wires, cables
or other plant so as to permit such passage, and agrees to deposit
in advance with the grantee a sum equal to such cost as estimated
by the grantee and agrees to pay all damages and claims of any kind
whatsoever, direct or consequential, caused directly or indirectly
by the changing, altering, moving, removing or replacing of said wires,
cables or other plant, except as may be incurred through the sole
negligence of the grantee. The grantee shall be given not less than
30 days' written notice by the party desiring to move such building
or other objects. Said notice shall detail the route of movement of
such building or other objects over and along the streets, alleys,
avenues, thoroughfares and public highways and shall bear the approval
of the City. Such moving shall be with as much haste as possible and
shall not be unnecessarily delayed or cause the grantee unnecessary
expense or waste of time. Neither the City nor any of its employees
shall be held liable for the consequences of any act done in connection
with the moving of a non-City-owned building or non-City-owned other
object or rearrangement of wires or for the cost of rearranging the
wires.
(Ord. 2023-18 § 1, 2023)
The franchise granted shall be binding upon the successors,
legal representatives and assigns of the grantee. The grantee may
sell, transfer or otherwise assign this franchise without the City's
consent upon approval from appropriate regulatory authority (Public
Utility Commission of Oregon or Federal Communications Commission),
if applicable, provided that no such transfer, sale or assignment
of this franchise shall be binding on the City unless and until the
City has notice of same in writing, until the transferee in writing
has accepted the terms and conditions of this franchise and until
the transferee has submitted satisfactory proof to the City of the
liability insurance coverage required by this franchise and has submitted
bonds or other guarantees that any work begun by the grantee and then
in progress under the terms of a City permit shall be performed by
the transferee to the City's standards.
(Ord. 2023-18 § 1, 2023)
The grantee shall indemnify, defend and hold harmless the City
and its officers, agents and employees from any and all claims, damages,
cost and expenses to which it or they may be subjected by reason of
any wrongful or negligent act or omission of the grantee, its agents
or employees in exercising the rights, privileges and franchise granted
by this franchise. If both the grantee and the City are found to be
partially liable for damages, the grantee's liability under this section
shall not exceed its proportion of negligence or fault. The City shall
give the grantee prompt notice of any claim (or advance notice of
claim) received by the City as to which the City seeks indemnity from
the grantee and shall tender the defense of any such claim to the
grantee. The aforementioned indemnity is not applicable to that which
is attributable to or arises from the negligence or willful misconduct
of the City and its officers, agents and employees. Neither party
may bind the other to a settlement of any such claim or to payment
of any of the costs of such claim without the written consent of the
party to be bound.
(Ord. 2023-18 § 1, 2023)
A.
In consideration of the rights, privileges and franchise hereby granted in Section 3.20.020 of this chapter, the grantee shall pay to the City a fee equivalent to three and one-half percent per annum of the grantee's gross operating revenues less uncollectible amounts ("franchise fee"), earned within the City limits commencing effective September 17, 2023. In exchange for the City agreeing to the amount of the franchise fee, the grantee agrees to account for the franchise fee as an operating cost chargeable to all of the grantee's members.
B.
Payment
of said fee shall be made monthly by the 15th of the following month.
The City reserves the right to audit the payments made by the grantee
to assure they comply with the requirements of this franchise. All
costs and charges associated with a review or audit of the franchise
fee payments as specified in this agreement shall be the responsibility
of the City. Any audit finding(s) that are mutually agreed to by the
parties shall be corrected within 180 days after mutual agreement.
Written notice for any audit review or other claim shall be provided
within three years after the payment has been remitted by the grantee
to the City.
C.
The
grantee shall furnish the City all street lighting service pursuant
to the grantee's Schedule 51 -Area Lighting & Public Street Lighting
Service, attached as Exhibit A to the franchise agreement, as such
may be amended or renumbered from time to time by the grantee's board
of directors. It is understood that as existing bulbs or fixtures
fail, the grantee shall replace existing light fixtures with LED light
fixtures, per City lighting codes and regulations now in effect and
as amended.
(Ord. 2023-18 § 1, 2023)
In further consideration of the rights and privileges herein
granted, the grantee hereby grants to the City the right and privilege
free of charge to suspend and maintain on poles placed by the grantee
in the public rights-of-way, such wires as are necessary for the exclusive
use of the City for noncommercial fire alarm and police purposes in
accordance with the terms and conditions of the grantee's pole attachment
or conduit joint use agreement and applicable law. Any such wiring
installations made and to be made by the City shall be made in conformity
to the requirements of all applicable Federal, State and City electrical
codes and in conformity with standard practices. The City agrees to
transfer their facilities, at the City's cost, to new poles placed
by the grantee within 30 days of notification.
(Ord. 2023-18 § 1, 2023)
A.
The rights, privileges and franchise herein granted shall continue and be in force the period of 10 years from and after the date this franchise takes effect, provided that the grantee accepts the franchise as required in Section 3.20.130.
B.
This
franchise shall automatically renew for another 10-year period if
neither party notifies the other of its intent to reopen for negotiations
of different terms. Such notice shall be in writing and delivered
not fewer than six months prior to the renewal date.
(Ord. 2023-18 § 1, 2023)
The grantee shall file with the City Recorder its written acceptance
of the rights and franchise hereby granted and the regulations hereby
imposed, within 60 days from and after the date when this franchise
shall become effective; and this franchise shall become null and void
unless such acceptance is so filed. The grantee shall at all times,
fully and faithfully, perform all of the terms, provisions and conditions
of this franchise and all other ordinances and orders of the City
Council as specified herein.
(Ord. 2023-18 § 1, 2023)
