The purpose and intent of this chapter is to:
A.
Permit
and manage reasonable access to the rights-of-way of the City 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;
B.
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;
C.
Secure
fair and reasonable compensation to the City and its residents for
permitting use of the rights-of-way;
D.
Assure
that all utility companies, persons and other entities owning or operating
facilities and/or providing services within the City comply with the
ordinances, rules and regulations of the City;
E.
Assure
that the City can continue to fairly and responsibly protect the public
health, safety and welfare of its citizens;
F.
Encourage
the provision of advanced and competitive utility services on the
widest possible basis to businesses and residents of the City; and
G.
Comply
with applicable provisions of State and Federal law.
(Ord. 1168-A § 1, 2012)
A.
The
City has jurisdiction and exercises regulatory management over all
rights-of-way within the City under authority of the City Charter
and State law.
B.
The
City has jurisdiction and exercises regulatory management over each
right-of-way whether the City has a fee, easement, or other legal
interest in the right-of-way, and whether the legal interest in the
right-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 right-of-way, and does
not obligate the City to maintain or repair any part of the right-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. 1168-A § 1, 2012)
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 as may be levied, imposed,
or due from a utility operator, 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. 1168-A § 1, 2012)
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 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.
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.
mean City owned or operated structures or equipment located
within the right-of-way or public easement used for governmental purposes.
mean any services 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 and whether
or not the transmission medium is wireline. "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 rights-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; and (5) direct-to-home satellite service
within the meaning of Section 602 of the Telecommunications Act.
means the authorization granted by the City to a utility
operator pursuant to this chapter.
means any person to whom the City has issued a valid permit pursuant to Section 12.32.050 and includes any person who is subject to the permit requirement of Section 12.32.050 regardless of whether or not such person applied for or obtained the required permit. For work performed on behalf of a utility operator, "permittee" shall include the utility operator in addition to the person to whom the City issued the permit.
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 communications
system" includes services provided by the State of Oregon pursuant
to ORS 190.240 and 283.140.
means the space in, upon, above, along, across, over or under
an easement for the constructing, reconstructing, operating, maintaining,
inspecting, and repairing of utilities facilities. This definition
applies only to easements the City has authority to manage or authority
to grant utility operators licenses to occupy and use for utility
facilities. "Public utility easement" does not include an easement
solely for the constructing, reconstructing, operating, maintaining,
inspecting, and repairing of City facilities, or where the proposed
use by the utility operator is inconsistent with the terms of any
easement granted to the City.
means the person acting as the head of the City's Public
Works Department or designee.
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 State of Oregon.
means any physical component of a system, including, but
not limited to, the poles, pipes, mains, conduits, ducts, cables,
wires, transmitters, plant, equipment and other facilities, located
within, under or above the rights-of-way, any portion of which is
used or designed to be used to deliver, transmit or otherwise provide
utility service. "Utility facility" does not include City facilities.
means any person who owns, places, operates or maintains
a utility facility within the City. The City shall not be considered
a "utility operator" for purposes of this chapter.
means the provision, by means of utility facilities permanently
located within, under or above the rights-of-way, whether or not such
facilities are owned by the service provider, of electricity, natural
gas, communications services, cable services, water, sewer, and/or
storm sewer to or from customers within the corporate boundaries of
the City, and/or the transmission of any of these services through
the City whether or not customers within the City are served by those
transmissions. "Utility service" does not include City owned or operated
water, sewer and/or storm sewer services.
means construction, reconstruction, grading, oiling, repairing,
opening or excavating in or on the right-of-way. "Work" also includes
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. 1168-A § 1, 2012)
A.
No
person shall do work affecting the right-of-way without first obtaining
a permit from the Public Works Department. The permit requirement
does not apply to City utilities or to the construction of improvements
performed under City contract unless such contract expressly requires
City permits.
B.
No
person shall perform any work on utility facilities within the rights-of-way
without first obtaining all required permits, including, but not limited
to, a permit from the Public Works Director. 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 the license required by this chapter,
or has a current franchise with the City, and all applicable fees
have been paid. Utility operators shall not be required to obtain
a permit for service drops to customer premises or routine maintenance
or repairs where such drops, repairs or maintenance do not require
cutting, digging, or breaking of, or damage to, the right-of-way and
do not result in closing or blocking any portion of the travel lane.
C.
The
permit shall be issued only to a duly licensed bonded contractor holding
a current City of Warrenton business license with proof of current
liability and workers compensation insurance, except that a property
owner who is not a licensed contractor may receive a permit under
the following conditions:
1.
The
total value of the work is not to exceed $1,000.00.
2.
No
excavation shall exceed one foot in depth.
3.
Excavations
shall be in the area between the back of the curb and right-of-way/property
line boundary.
4.
No
existing improvements other than sidewalks and/or driveway approaches
are to be disturbed.
5.
A
security deposit of $1,200.00 in the form of cash or certified check
shall be required under the restoration of the work area at the discretion
of the Public Works Director. In the event that restoration is not
satisfactory, the deposit shall be retained by the City to defray
the cost of restoration by the Public Works Department.
D.
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 more than 48 hours after commencing the emergency work. As used
in this subsection, "emergency" means a circumstance in which immediate
repair to damaged or malfunctioning facilities is necessary to restore
lost service or prevent immediate harm to persons or property.
E.
Applications
for permits to work in the right-of-way 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 that the facilities
will be constructed in accordance with all applicable codes, rules
and regulations, including, but not limited to, the most current revision
of the City of Warrenton Public Works specifications. The drawings,
plans and specifications accompanying applications for permits to
construct or work on utility facilities shall also demonstrate:
1.
The
location and route of all utility facilities to be installed aboveground
or on existing utility poles.
2.
The
location and route of all utility facilities on or in the rights-of-way
to be located under the surface of the ground, including the line
and grade proposed for the burial at all points along the route that
are within the rights-of-way. Applicant's existing utility facilities
shall be differentiated on the plans from new construction. A cross-section
shall be provided showing new or existing utility facilities in relation
to the street, curb, sidewalk or right-of-way.
3.
The
construction methods to be employed for protection of existing structures,
fixtures, and facilities within or adjacent to the rights-of-way,
and description of any improvements that applicant proposes to temporarily
or permanently remove or relocate.
F.
A permit
applicant shall provide 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.
G.
All
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 Public Works
Director.
H.
Prior
to issuance of a construction permit, the applicant shall pay a permit
fee in an amount to be determined by resolution of the Commission.
I.
If
satisfied that the applications, plans and documents submitted comply
with all requirements of this chapter, the Public Works Director shall
issue a permit authorizing the work, subject to such further conditions,
restrictions or regulations affecting the time, place and manner of
performing the work as they may deem necessary or appropriate.
J.
Except
in the case of an emergency, the permittee shall notify the Public
Works Director not less than two working days in advance of any excavation
or construction in the rights-of-way.
K.
All
construction practices and activities shall be in accordance with
the permit and approved final plans and specifications. The Public
Works Director shall be provided access to the work site and such
further information as the Public Works Director may require to ensure
compliance with such requirements.
L.
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 at the sole expense of the permittee. The
City is authorized to stop work in order to assure compliance with
the provision of this chapter.
M.
The
permittee shall promptly complete all construction activities so as
to minimize disruption of the City rights-of-way and other public
and private property. All work within the rights-of-way, including
restoration, must be completed within 120 days of the date of issuance
of the permit unless an extension or an alternate schedule has been
approved by the Public Works Director.
N.
Performance
Surety.
1.
Unless
otherwise provided in a franchise agreement or agreed to in writing
by the City, a performance bond or other form of surety acceptable
to the City equal to at least 100 percent of the estimated cost of
the work within the rights-of-way of the City shall be provided before
construction is commenced.
2.
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 Public Works Director, including
restoration of rights-of-way and other property affected by the construction.
3.
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 standards;
c.
Proper location of the work and/or utility facilities as specified
by the City;
d.
Restoration of the rights-of-way 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.
O.
Injury
to Persons or Property. The permittee shall preserve and protect from
injury or damage all facilities in the rights-of-way, the public using
the rights-of-way 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. The permittee 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.
P.
Restoration.
1.
The
permittee shall, at its own expense, promptly restore such ways or
property to the same or better condition as existed before the work
was undertaken, in accordance with applicable Federal, State and local
laws, codes, ordinances, rules and regulations, unless otherwise directed
by the City and as determined by the Public Works Director.
2.
If
weather or other conditions beyond the permittee's control do not
permit the complete restoration required by the City, the permittee
shall temporarily restore the affected rights-of-way or property.
Such temporary restoration shall be at the permittee's sole expense
and the permittee 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 may be subject to approval by the City.
3.
If
the permittee fails to restore rights-of-way or property as required
in this chapter, the City shall give the permittee written notice
and provide the permittee a reasonable period of time 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 rights-of-way or
property. If, after said notice, the permittee fails to restore the
rights-of-way or property as required in this chapter, the City shall
cause such restoration to be made at the expense of the permittee.
(Ord. 1168-A § 1, 2012)
A.
License
Required.
1.
Except
those utility operators with a valid franchise agreement from the
City, every person shall obtain a license from the City prior to conducting
any work in the rights-of-way.
2.
Every person that owns or controls utility facilities in the rights-of-way as of the effective date of the ordinance codified in this chapter shall apply for a license from the City within 45 days of the later of: (a) the effective date of the ordinance codified in this chapter; or (b) the expiration of a valid franchise from the City, unless a new franchise is granted by the City pursuant to subsection E of this section.
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 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, and
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 Commission in
an amount sufficient to fully recover all of the City's costs related
to processing the application for the license.
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
rights-of-way to accommodate the applicant's proposed utility facilities
and the applicable Federal, State and local laws, rules, regulations
and policies.
E.
Franchise
Agreements. If the public interest warrants, the City and 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 Commission. The franchisee shall be subject
to the provisions of this chapter to the extent such provisions are
not in conflict with any such franchise.
F.
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, to construct, place, maintain and operate
utility facilities in the rights-of-way for the term of the license.
2.
Any license granted pursuant to this chapter shall not convey equitable or legal title in the rights-of-way, and may not be assigned or transferred except as permitted in subsection K 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, police power or regulatory power of the City as may exist
at the time the license is issued or thereafter obtained.
G.
Term. Subject to the termination provisions in subsection M of this section, the license granted pursuant to this chapter will remain in effect for a term of five years.
H.
License
Nonexclusive. No license granted pursuant to this section shall confer
any exclusive right, privilege, license or franchise to occupy or
use the rights-of-way for delivery of utility services or any other
purpose. The City expressly reserves the right to grant licenses,
franchises or other rights to other persons, as well as the City's
right to use the rights-of-way, 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 rights-of-way. 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.
I.
Reservation of City Rights. Nothing in the license shall be construed to prevent the City from grading, paving, repairing and/or altering any rights-of-way, constructing, laying down, repairing, relocating or removing City facilities or establishing any other public work, utility or improvement of any kind, including repairs, replacement or removal of any City facilities. If any of licensee's utility facilities interfere with the construction, repair, replacement, alteration or removal of any rights-of-way, 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 12.32.080 of this chapter, in a manner acceptable to the City and consistent with industry standard engineering and safety codes.
J.
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 privilege tax requirements of this chapter
for the portion of the facilities and extent of utility services delivered
over those facilities.
2.
A
utility operator that provides or transmits more than one utility
service over its facilities is not required to obtain a separate license
or franchise for each utility service, provided that it gives notice
to the City of each utility service provided or transmitted and pays
the applicable privilege tax for each utility service.
K.
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 the proposed transferee or assignee
is authorized under all applicable laws to own or operate the utility
system and the transfer or assignment is approved by all agencies
or organizations required or authorized under Federal and State laws
to approve such transfer or assignment. If a license is transferred
or assigned, the transferee or assignee shall become responsible for
all facilities of the licensee at the time of transfer or assignment.
A transfer or assignment of a license does not extend the term of
the license.
L.
Renewal. At least 90, but no more than 180, 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 and/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.
M.
Termination.
1.
Revocation
or Termination of a License. The Commission 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 the City after
final determination of the taxes, compensation, fees or costs;
e.
Failure to restore the rights-of-way after construction 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 rights-of-way; 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 and/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 utility operator 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 utility operator
to demonstrate that the utility operator has remained in compliance,
that the utility operator has cured or is in the process of curing
any violation or noncompliance, or that it would be in the public
interest to impose a penalty or sanction less than termination or
revocation. If the utility operator is in the process of curing a
violation or noncompliance, the utility operator must demonstrate
that it acted promptly and continues to actively work on compliance.
If the utility operator does not respond or if the City Manager or
designee determines that the utility operator's response is inadequate,
the City Manager or designee shall refer the matter to the Commission,
which shall provide a duly noticed public hearing to determine whether
the license shall be terminated or revoked.
(Ord. 1168-A § 1, 2012)
A.
Construction
Codes. Utility 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. When a utility operator,
or any person acting on its behalf, does any work in or affecting
the rights-of-way, the utility operator shall, at its own expense,
promptly restore the rights-of-way as directed by the City consistent
with applicable City codes, rules and regulations. A utility operator
or other person acting on its behalf shall use suitable barricades,
flags, flagging attendants, lights, flares and other measures as required
for the safety of all members of the general public and to prevent
injury or damage to any person, vehicle or property by reason of such
work in or affecting the rights-of-way or property.
B.
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 right-of-way
comply with the terms of this chapter and applicable State and City
codes, ordinances, rules and regulations.
C.
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 rights-of-way.
1.
Prior
to January 1st of each year, utility operators shall provide the City
with a schedule of known proposed construction activities for that
year in, around or that may affect the rights-of-way.
2.
Utility
operators shall meet with the City annually, or as determined by the
City, to schedule and coordinate construction in the rights-of-way.
3.
All
construction locations, activities and schedules within the rights-of-way
shall be coordinated as ordered by the Public Works Director, to minimize
public inconvenience, disruption, or damages.
(Ord. 1168-A § 1, 2012)
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 right-of-way of the City,
the utility operator with permission to occupy the same right-of-way
shall locate its facilities underground at its own expense. This requirement
shall not apply to facilities used for transmission of electric energy
at nominal voltages in excess of 35,000 volts or to pedestals, cabinets
or other above-ground equipment of any utility operator. The City
reserves the right to require written approval of the location of
any such above-ground equipment in the right-of-way.
B.
Interference
with the Rights-of-Way. No utility operator or other person may locate
or maintain its facilities so as to unreasonably interfere with the
use of the rights-of-way by the City, by the general public or by
other persons authorized to use or be present in or upon the rights-of-way.
All use of the rights-of-way shall be consistent with City codes,
ordinances, rules and regulations.
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 right-of-way, including relocation of aerial facilities underground,
when requested to do so in writing by the City.
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 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 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.
D.
Removal
of Unauthorized Facilities.
1.
Unless
otherwise agreed to in writing by the Public Works Director, 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 abandoned or unauthorized
utility facility within a right-of-way shall, at its own expense,
remove the facility and restore the right-of-way.
2.
A
utility system or 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 the facilities
of any utility operator or similar entity located within the rights-of-way
of the City, without notice, as the City may determine to be necessary,
appropriate or useful in response to a public health or safety emergency.
The City will use qualified personnel or contractors consistent with
applicable State and Federal safety laws and regulations to the extent
reasonably practicable without impeding the City's response to the
emergency.
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 a detailed 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 subsection 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 rights-of-way
after initial construction if such plans materially 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.
(Ord. 1168-A § 1, 2012)
A utility operator may lease capacity on or in its systems 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 or a valid agreement between the utility
operator and the lessee.
(Ord. 1168-A § 1, 2012)
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,
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 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. 1168-A § 1, 2012)
If the City vacates any right-of-way, or portion thereof, that
a utility operator uses, the utility operator shall, at its own expense,
remove its facilities from the right-of-way 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 right-of-way
is vacated, or as otherwise directed or agreed to in writing by the
City, the City may remove the facilities 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. 1168-A § 1, 2012)
A.
Every
utility operator shall pay the privilege tax for every utility service
provided using the rights-of-way in the amount determined by resolution
of the Commission.
B.
Privilege
tax payments required by this section shall be reduced by any franchise
fee payments received by the City, but in no case will be less than
$0.00.
C.
Unless otherwise agreed to in writing by the City, the tax set forth in subsection A of this section shall be paid quarterly, in arrears, for each quarter during the term of the license within 30 days after the end of each calendar quarter, and shall be accompanied by an accounting of gross revenues, if applicable, and a calculation of the amount payable. The utility shall pay interest at the rate of nine percent per year for any payment made after the due date.
D.
The
calculation of the privilege tax required by this section shall be
subject to all applicable limitations imposed by Federal or State
law.
E.
The
City reserves the right to enact other fees and taxes applicable to
the utility operators subject to this chapter. Unless expressly permitted
by the City in enacting such fee or tax, or required by applicable
State or Federal law, no utility operator may deduct, offset or otherwise
reduce or avoid the obligation to pay any lawfully enacted fees or
taxes based on the payment of the privilege tax or any other fees
required by this chapter.
(Ord. 1168-A § 1, 2012)
A.
Within
30 days of a written request from the City, or as otherwise agreed
to in writing by the City:
1.
Every
provider of utility service shall furnish the City with information
sufficient to demonstrate that the provider is in compliance with
all the requirements of this chapter and its franchise agreement,
if any, including, but not limited to, payment of any applicable registration
fee, privilege tax or franchise fee.
2.
Every
utility operator shall make available for inspection by the City at
reasonable times and intervals all maps, records, books, diagrams,
plans and other documents, maintained by the utility operator with
respect to its facilities within the rights-of-way or public utility
easements. Access shall be provided within the City unless prior arrangement
for access elsewhere has been made with the City.
B.
If the City's audit of the books, records and other documents or information of the utility operator or utility service provider demonstrate that the utility operator or provider has underpaid the privilege tax or franchise fee by three percent or more in any one year, the utility operator shall reimburse the City for the cost of the audit, in addition to any interest owed pursuant to subsection C of Section 13.32.120 of this chapter or as specified in a franchise.
C.
Any
underpayment, including any interest or audit cost reimbursement,
shall be paid within 30 days of the City's notice to the utility service
provider of such underpayment.
(Ord. 1168-A § 1, 2012)
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.
Motor vehicle liability insurance 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.
Worker's compensation within statutory limits and employer's liability
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.
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 and shall name, or the certificate of insurance shall name,
as additional insureds the City and its officers, agents, and employees.
The coverage must apply as to claims between insureds on the policy.
The policy shall provide that 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 granted or license issued pursuant to this chapter is effective, and as necessary thereafter, the utility operator shall provide a performance bond or other financial security, 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 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 N of Section 12.32.050 of this chapter.
C.
Indemnification.
1.
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 or entity in any way arising out of, resulting from, during or in connection with, or alleged to arise out of or result from the negligent, careless, or wrongful acts, omissions, failure to act, or other misconduct of the utility operator or its affiliates, officers, employees, agents, contractors, subcontractors, or lessees in the construction, operation, maintenance, repair, or removal of its facilities, and in providing or offering utility services over the facilities, whether such acts or omissions are authorized, allowed, or prohibited by this chapter or by a franchise agreement. The acceptance of a license under Section 12.32.060 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 rights-of-way or easements in a timely manner, unless the utility
operator's failure arises directly from the City's negligence or willful
misconduct.
(Ord. 1168-A § 1, 2012)
Every utility operator shall comply with all 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 granted under
this chapter.
(Ord. 1168-A § 1, 2012)
If any person is required by this chapter to provide books,
records, maps or information to the City that the person reasonably
believes to be confidential or proprietary, the City shall take reasonable
steps to protect the confidential or proprietary nature of the books,
records or information, to the extent permitted by Oregon Public Records
Laws, provided that all documents are clearly marked as confidential
by the person at the time of disclosure to the City. The City shall
not be required to incur any costs to protect such document, other
than the City's routine internal procedures for complying with the
Oregon Public Records Law.
(Ord. 1168-A § 1, 2012)
A.
Any
person found guilty of violating any of the provisions of this chapter
or the license shall be subject to a penalty of not less than $100.00
nor more than $500.00 for each offense. A separate and distinct offense
shall be deemed committed each day on which a violation occurs or
continues.
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. 1168-A § 1, 2012)
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. 1168-A § 1, 2012)
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. 1168-A § 1, 2012)
