City of Hillsboro, OR UTILITY FACILITIES IN THE PUBLIC RIGHTS-OF-WAY

§ 9.48.010 Jurisdiction and management of the public rights-of-way.

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.

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.

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.

To the extent required by law, the provisions of this subchapter are subject to and will be applied consistent with applicable state and federal laws and, to the extent possible, shall be interpreted to be consistent with such laws.

(Ord. 6000 § 1, 2011; Ord. 6185 § 1, 2016)

§ 9.48.020 Definitions.

The following definitions apply unless inconsistent with the context:

"Cable service"

means the transmission to subscribers of video programming or other programming services over a cable communications system as defined in HMC 5.72.

"City facilities"

mean structures or equipment located within the rights-of-way or easements that are owned, managed, maintained or operated by the city and used for governmental purposes, including, but not limited to, fiber-optic cable, street lights, traffic signals, sanitary sewer, storm sewer or water infrastructure including related pipes, manholes, catch basins, wires, conduit, valves, vaults and appurtenances.

"Communications services"

mean 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 rights-of-way; (4) over-the-air radio or television broadcasting to the public-at-large; (5) direct-to-home satellite service within the meaning of Section 602 of the Telecommunications Act; and (6) commercial mobile radio service as defined in 47 C.F.R. 20.

"Laws"

mean all applicable laws, codes, ordinances, resolutions, rules, and regulations lawfully enacted or adopted. When used in reference to the city or local laws, "laws" shall include applicable rules, regulations, policies, and design and construction standards or manuals published, adopted or approved by the city or public works director.

"NEC"

means the National Electric Code.

"NESC"

means the National Electric Safety Code.

"Private communications system"

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.

"Public utility easement"

means the space in, upon, above, along, across, over or under real property granted for use by utilities for the constructing, reconstructing, operating, maintaining, inspecting, and repairing of 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. This definition applies only to the extent of the city's right, title, interest and authority to grant a franchise, privilege or license to occupy and use such easement for utility facilities.

"Public works director"

means the director of the public works department for the city of Hillsboro, or designee.

"Right-of-way or rights-of-way"

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, open space tracts, water quality tracts, or other city-owned property. This definition applies only to the extent of the city's right, title, interest and authority to grant a franchise, privilege or license to occupy and use such areas for utility facilities.

"Utility facility or facility"

means any physical component of a utility system, including, but not limited to, the poles, pipes, main-lines, conduits, ducts, cables, wires, transmitters, vaults, pedestals, structures, 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 operator or operator"

means any person who owns, places, operates or maintains a utility facility within the city.

"Utility service"

means the provision, by means of utility facilities located in 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.

"Work"

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. 6000 § 1, 2011; Ord. 6185 § 1, 2016)

§ 9.48.022 Registration.

Registration Required. Except as provided in subsection D of this section, 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 customer in the city. Except as provided in subsection D of this section, every person providing utility services to customers within the city as of the effective date of this subchapter shall register within 45 days of the effective date of this subchapter.

Annual Registration. Registration shall be effective on the date the city receives the completed registration application and shall be renewed annually thereafter on that date by submission of a new registration application.

Registration Application. The registration shall be on a form provided by the city, and shall be accompanied by any additional documents required by the city to identify the registrant and its legal status, describe the type of utility services provided or to be provided by the registrant and list the facilities over which the utility services will be provided.

Exception. A person with a valid franchise agreement or license from the city shall not be required to register to provide the utility services expressly permitted by the franchise agreement or license.

(Ord. 6185 § 1, 2016)

§ 9.48.025 Licenses.

License Required.

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.

Every person that owns or controls utility facilities in the rights-of-way as of the effective date of this subchapter shall apply for a license from the city within 45 days of the later of: (a) the effective date of this subchapter; 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.

Notwithstanding subsections (A)(1) and (2), any person operating a cable communications system as defined in HMC 5.72.020 shall comply with the provisions of HMC 5.72, unless otherwise agreed to in writing by the city.

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 subchapter.

License Application Fee. The application shall be accompanied by a nonrefundable application fee or deposit set by resolution of the council in an amount sufficient to fully recover all of the city's costs related to processing the application for the license.

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 subchapter, the continuing capacity of the rights-of-way to accommodate the applicant's proposed utility facilities and the applicable federal, state and local laws.

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 subchapter, consistent with applicable state and federal law. The franchise may conflict with the terms of this subchapter with the review and approval of council. The franchisee shall be subject to the provisions of this subchapter to the extent such provisions are not in conflict with any such franchise. In the event of a conflict between the express provisions of a franchise and this subchapter, the franchise shall control.

Rights Granted.

The license granted hereunder shall authorize and permit the licensee, subject to the provisions of the city code and other applicable laws, to construct, place, maintain and operate utility facilities in the rights-of-way for the term of the license.

Any license granted pursuant to this subchapter 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.

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.

Term. Subject to the termination provisions in subsection M of this section, the license granted pursuant to this subchapter will remain in effect for a term of five years.

License Nonexclusive. No license granted pursuant to this subchapter 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.

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, the licensee's facilities shall be removed or relocated as provided in HMC 9.48.040, in a manner acceptable to the city and consistent with industry standard construction and safety codes.

Multiple Services.

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 right-of-way use fee requirements of this subchapter for the portion of the facilities and extent of utility services delivered over those facilities.

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 right-of-way use fee for each utility service.

Nothing in this subsection J requires a utility operator to pay the registration fee, license application fee or right-of-way use fee owed to the city by a third party using the utility operator's facilities.

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 fulfilling all the obligations under the license with respect to all facilities of the licensee in the rights-of-way in the city at the time of transfer or assignment. A transfer or assignment of a license does not extend the term of the license.

Renewal. At least 90, but no more than 180, days prior to the expiration of a license granted pursuant to this subchapter, 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. The city shall review the application as required by subsection D of this section, and licensee's compliance with the terms of this chapter, 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 subchapter 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.

Termination.

Revocation or Termination of a License. The council may terminate or revoke the license granted pursuant to this subchapter for any of the following reasons:

Material violation of any of the provisions of this subchapter;

Material violation of any provision of the license;

Material misrepresentation in a license application;

Failure to pay taxes, compensation, fees or costs due the city after final determination of the taxes, compensation, fees or costs;

Failure to restore the rights-of-way after construction as required by this subchapter or other applicable state and local laws;

Failure to comply in all material respects with technical, safety and engineering standards related to work in the rights-of-way; or

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.

Standards for Revocation or Termination. In determining whether termination, revocation or some other sanction is appropriate, the following factors shall be considered:

The egregiousness of the misconduct;

The harm that resulted;

Whether the violation was intentional;

The utility operator's history of compliance; and/or

The utility operator's cooperation in discovering, admitting and/or curing the violation.

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 council, which shall provide a duly noticed public hearing to determine whether the license shall be terminated or revoked.

(Ord. 6185 § 1, 2016)

§ 9.48.030 Construction and restoration.

Construction Permits.

No person shall perform any work within the rights-of-way without first obtaining all required permits. The city shall not issue a permit for the construction, installation, maintenance or repair of utility facilities unless the utility operator of the facilities has a current franchise or license from the city to place, repair or maintain utility facilities in the rights-of-way, 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 for vehicular traffic. Notwithstanding the foregoing, if work requires the closure of pathways or sidewalks that result in an impediment or blockage to pedestrian or bicycle traffic, reasonable accommodations shall be made to ensure safe passage through or around the work site.

In the event of an emergency, a utility operator 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 section, "emergency" means a circumstance involving: (a) an unscheduled utility service outage affecting one or more of the utility operator's customers; or (b) danger to public safety. Emergency also includes situations where the failure of the utility operator to act would result in subsection (A)(2)(a) or (b) within 24 hours.

Applications for permits to construct utility facilities 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, regulations and design and construction standards.

The location and route of all utility facilities to be installed above-ground or on existing utility poles or other facilities utilized for mounting.

The location and route of all the applicant's 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. The utility operator's existing utility facilities shall be differentiated on the plans from new construction. A cross section shall be provided showing the applicant's new and any existing utility facilities in relation to the street, curb, sidewalk or right-of-way. All existing utility facilities of other utility operators and other physical features of the applicant's proposed route shall be shown in sufficient detail to ensure the proposed utility facility can be constructed as shown in the plans.

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.

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 public works director.

Prior to issuance of a construction permit, the applicant shall pay a permit fee in an amount to be determined by resolution of the council in an amount reasonably related to the city's costs for reviewing and issuing permits, inspection, supervision, and regulation in exercising its authorities and duties under this subsection A of this section.

If satisfied that the applications, plans and documents submitted comply with all requirements of this subchapter, the public works director shall issue a permit authorizing construction of the utility facilities, subject to such further conditions, restrictions or regulations affecting the time, place and manner of performing the work as they may deem necessary or appropriate. The public works director may deny any permit application that does not comply with the requirements of this subsection.

If the application for permit is denied or the utility operator objects to any conditions, restrictions or regulations included in the permit, the applicant may file a written appeal with the city within five days of notice of denial or of issuance of the permit with the conditions, restrictions or regulations to which the utility operator objects. The council will then set, notice and conduct a hearing on the applicant's appeal.

Except in the case of an emergency, the utility operator shall notify the public works director not less than two working days in advance of any excavation or construction in the rights-of-way.

All construction practices and activities shall be in accordance with the permit issued by the city and city-approved final plans and specifications for the utility facilities. The public works director and other designated city representatives shall be provided access to the work site and such further information as they may require to ensure compliance with such requirements. Any material change to the final plans and specifications in the course of work requires a modification to the permit.

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 subchapter, shall be corrected, moved or removed at the sole expense of the utility operator within 30 days of the city's discovery of the failure to comply, unless further time is agreed to in writing by the city. This obligation to correct, move or remove shall survive the term of the permit and any franchise or license unless the utility facilities have been removed or the city has provided written authorization for abandonment in place. The city is authorized to stop work in order to assure compliance with the provisions of this subchapter.

11.

The utility operator shall promptly complete all construction activities so as to minimize disruption of the city rights-of-way and other public and private property. All construction work within the rights-of-way, including restoration, must be completed within 120 days of the date of issuance of the construction permit unless an extension or an alternate schedule has been approved by the appropriate city official.

Construction Codes. Utility facilities shall be constructed, installed, operated and maintained in accordance with all applicable federal, state and local laws, including the NEC and the NESC, and in accordance with the construction documents submitted by or on behalf of the utility operator and approved by the city.

Safety and Workmanship. A utility operator shall preserve and protect from injury or damage other utility operators' facilities and city 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. A utility operator shall adhere to the Manual on Uniform Traffic Control Devices (MUTCD) and use suitable barricades, signs, flags, flagging attendants, lights, flares and other approved 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. 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.

Restoration.

When a utility operator does any work in or affecting any rights-of-way, it shall, at its own expense, promptly restore such ways or property to at least the same condition that it was in prior to excavation in accordance with applicable federal, state and local laws, and the permit issued by the city, unless otherwise directed by the public works director. The utility operator shall notify the city in writing within 15 days of completing any restoration that the restoration is complete and in conformance with this subsection.

If weather or other conditions beyond the utility operator's control do not permit the complete restoration required by the city, the utility operator shall temporarily restore and maintain the affected rights-of-way or property as directed by the public works director until a permanent restoration can be made. Such temporary restoration shall be at the utility operator's sole responsibility and 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 shall be subject to approval by the city.

If the utility operator fails to restore rights-of-way or property as required in the permit, the city shall give the utility operator written notice and provide the utility operator a reasonable period of time not less than 10 days, unless a 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 utility operator fails to restore the rights-of-way or property as required in the permit, the city shall cause such restoration to be made at the expense of the utility operator.

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 subchapter and the permit issued by the city. 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 subchapter and the permit issued by the city.

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.

Prior to April 15th 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.

Prior to April 15th of each year, the city shall provide all franchised and licensed utility operators with a schedule of known proposed construction activities that may affect the rights-of-way or utility facilities in the rights-of-way.

Utility operators shall meet with the city annually, or as determined by the city, to schedule and coordinate construction in the rights-of-way.

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.

Contractors. A utility operator may authorize a qualified contractor to perform any of the work required in this subchapter on the utility operator's behalf. Any contractor performing work on behalf of a utility operator shall be subject to the provisions of this subchapter. 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 subchapter. Notwithstanding the foregoing and the requirements of HMC 9.48.090(A), all contractors shall comply with the insurance requirements set forth in the permit issued by the city.

(Ord. 6000 § 1, 2011; Ord. 6185 § 1, 2016)

§ 9.48.040 Location of facilities.

Location of Facilities.

Interference with the Rights-of-Way. No utility operator or other person may locate, operate, or maintain its facilities so as to unreasonably interfere with the use of the rights-of-way by the city, including city utilities, 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 laws and in accordance with the permit issued by the city and city-approved final plans and specifications for the utility facilities. The city reserves the right to require any utility operator or other person to remove or relocate facilities when the city determines it is in the public interest to do so, consistent with applicable laws and as may be provided in any franchise agreement with the affected utility operator.

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 any portion of the right-of-way of the city, a utility operator shall, at its own expense, install all new utility facilities in that portion of the right-of-way underground.

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 similar equipment of any utility operator. The city reserves the right to require written approval of the location of any such aboveground equipment in the right-of-way.

Removal of Unauthorized or Abandoned Facilities.

Unless otherwise agreed to in writing by the public works director, within a reasonable time given the nature of the utility facility, and in any case not less than 30 days following written notice from 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 as required in HMC 9.48.030(D).

A utility system or facility is unauthorized under any of the following circumstances:

The utility facility is outside the scope of authority granted by the city under the franchise, license or other valid authorization from the city to place, repair or maintain utility facilities in the rights-of-way. This includes facilities that were never franchised or licensed and facilities that were once franchised or licensed but for which the franchise or license has expired or been terminated. This does not include any facility for which the city has provided written authorization for abandonment in place.

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.

The utility facility is improperly constructed or installed or is in a location not permitted by the construction permit, franchise or this subchapter.

The utility operator is in violation of a material provision of this subchapter 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. In the event facilities are unauthorized as described in the preceding sentence, the removal requirement of subsection (B)(1) shall apply only to the utility facilities that are or were installed in violation of a material provision of this subchapter.

Removal or Relocation.

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 to the extent reasonably practicable without impeding the city's response to the emergency.

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 and the city has determined that such relocation, change or alteration is in the public interest. The city shall make a good faith effort to coordinate with affected utilities regarding the schedule for such changes, and after such effort shall provide written notice of the time by which the utility operator must remove, relocate, change, alter or underground its facilities. The requirement to relocate aerial facilities underground shall not apply to facilities used for transmission of electric energy at nominal voltages in excess of 35,000 volts. Nothing herein shall be deemed to preclude: (a) the city from agreeing in writing, in its sole discretion, to contribute to utility operators' costs for such relocation; or (b) the utility operator from collecting its costs associated with such undergrounding in accordance with the provisions of OAR 860-022-0046, provided that the utility operator shall timely comply with the requirements of HMC 9.48.040 regardless of whether or not it has requested or received such reimbursement.

If the utility operator fails to remove or relocate any facility when required to do so under this subchapter, the city may remove or relocate the facility using qualified personnel or contractors consistent with applicable state and federal safety laws, and the utility operator shall be responsible for paying the full cost of the removal or relocation and any administrative costs incurred by the city in removing or relocating the facility and obtaining reimbursement. Nothing in this subsection shall require a utility operator to pay costs incurred by the city for failure to remove or relocate where the utility operator establishes that the failure was caused by another utility operator, the city or the city's contractor. 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 and relocate shall survive the termination of any franchise or license.

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 this section, or resulting from the utility operator's failure to remove, relocate or alter its facilities as required by this section, except to the extent such damage arises from the city's sole negligence or willful misconduct.

Engineering Designs and Plans.

The utility operator shall provide the city with two complete sets of engineered record drawings in a form acceptable to the city showing the location of all its utility facilities in the rights-of-way after construction. Where utility facilities are installed in the location shown in approved permit plans, the permit plans may serve as record drawings.

Within 30 days of a written request from the city, or as otherwise agreed to in writing by the city, 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. Access shall be provided within the city unless prior arrangement for access elsewhere has been made with the city.

If any utility operator is required by this subchapter to provide documents or information to the city that the utility operator reasonably believes to be confidential or proprietary, the city shall take reasonable steps to protect the confidential or proprietary nature of the documents or information, to the extent permitted by Oregon Public Records Laws, provided that the affected documents are marked confidential. Notwithstanding the foregoing, if the utility operator reasonably believes Oregon Public Records Laws might require disclosure of the documents and reveal confidential or proprietary information that may be harmful to the utility operator or its customers, the utility operator will not be required to provide the documents so long as it provides the city with the requested information in a manner deemed appropriate by 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. 6000 § 1, 2011; Ord. 6185 § 1, 2016)

§ 9.48.050 Maintenance.

Every utility operator shall install and maintain all facilities in a manner that complies with applicable federal, state and local laws, and any applicable permits. The utility operator shall, at its own expense, repair, monitor and maintain facilities from time to time, and/or relocate such facilities, as may be necessary to accomplish this purpose.

If, after written notice from the city of the need for repair, maintenance or relocation, a utility operator fails to repair, maintain or relocate facilities as requested by the city and by the date reasonably established by the city, the city may perform such repair, maintenance or relocation using qualified personnel or contractors consistent with applicable state and federal safety laws 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. 6000 § 1, 2011; Ord. 6185 § 1, 2016)

§ 9.48.060 Vacation.

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 using qualified personnel or contractors consistent with applicable state and federal safety laws 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. 6000 § 1, 2011; Ord. 6185 § 1, 2016)

§ 9.48.070 Right-of-way use fee.

Every utility operator and every person providing utility services to customers in the city shall pay a right-of-way use fee in an amount determined by resolution of the council for every utility service provided using the rights-of-way.

Right-of-way use fee payments required by this section shall be reduced by any franchise fee and public utilities tax payments received by the city, but in no case will be less than zero dollars.

Unless otherwise agreed to in writing by the city, the right-of-way use fee set forth in subsection A shall be paid quarterly, in arrears, 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.

The calculation of the right-of-way use fee required by this section shall be subject to all applicable limitations imposed by federal or state law.

The city reserves the right to enact other fees and taxes applicable to the utility operators subject to this subchapter. 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 right-of-way use fee or any other fees required by this subchapter.

(Ord. 6185 § 1, 2016)

§ 9.48.080 Audits and reviews.

Within 30 days of a written request from the city, or as otherwise agreed to in writing by the city:

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 subchapter and its franchise agreement, if any, including, but not limited to, payment of any applicable right-of-way use fee and franchise fee.

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. Access shall be provided within the city unless prior arrangement for access elsewhere has been made with the city.

If the city's audit or review of the books, records and other documents or information of the utility operator demonstrate that the utility operator has underpaid the right-of-way use fee or franchise fee by three percent or more in any one year, the utility operator shall reimburse the city for the reasonable cost of the audit or review, in addition to any interest owed pursuant to HMC 9.48.070(C) or as specified in a franchise.

Any underpayment, including any interest or audit/review cost reimbursement, shall be paid within 30 days of the city's notice to the utility service provider of such underpayment.

(Ord. 6185 § 1, 2016)

§ 9.48.090 Insurance and indemnification.

Insurance. All utility operators shall maintain all insurance required by law. In addition, all utility operators shall maintain the following:

Required Coverage. Without waiver of any other requirement in this subchapter 9.48, every utility operator shall, at its own expense, provide and maintain in full force and effect at all times the following policies of insurance issued by a responsible carrier. All utility operators' insurance carriers shall be rated A VII or better by the A.M. Best's rating service.

Workers' Compensation. Workers' compensation coverage sufficient to meet statutory liability limits.

Employer's Liability. Employer's liability insurance in addition to its workers' compensation coverage with at least the minimum limits in subsection (A)(2) of this section.

Commercial General Liability. Commercial general liability (CGL) insurance on an occurrence basis. CGL coverage shall include all major coverage categories including bodily injury, personal injury, property damage, products/completed operations, comprehensive form of premises-operations, explosions and collapse hazard, underground hazard and products completed hazard.

Automobile Liability. Automobile liability insurance with coverage for owned, hired, and non-owned vehicles. The automobile liability insurance shall include pollution liability coverage resulting from vehicle overturn and collision.

Limits. The insurance required by this subchapter shall be written for at least the limits of liability specified in this section or required by law, whichever is greater. 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.

a. Workers' Compensation:	Statutory Limits
b. Employer's Liability:
i. Each Accident	$1,000,000
ii. Each Bodily Injury Disease	$1,000,000
iii. Aggregate Bodily Injury Disease	$1,000,000
c. Commercial General Liability:
i. Each Occurrence	$3,000,000
ii. Bodily Injury or death/each person	$3,000,000
iii. Property Damage/each accident	$3,000,000
iv. All Other Types of Liability	$3,000,000
d. Automobile Liability: Combined Single Limit	$3,000,000

Additional Insured. The insurance shall be without prejudice to coverage otherwise existing and shall name as additional insureds the city and its elected and appointed officials, officers, agents, employees and volunteers. The policy endorsement must extend premises operations and products/completed operations to the additional insureds.

Primary Coverage. The utility operator's insurance shall be primary insurance coverage and may not seek contribution from any insurance or self-insurance carried by the city including any property damage coverage carried by the city. The utility operator's insurance shall apply separately to each insured against whom a claim is made or suit is brought. The utility operator's insurance shall not include any cross-suit exclusion or preclude an additional insured party from asserting a claim as a third party.

Maintaining Insurance. 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.

Certificate of Insurance. The utility operator shall maintain on file with the city a certificate of insurance, along with the additional insured policy endorsement, or proof of self-insurance acceptable to the city, certifying the coverage required above.

Financial Assurance. Unless otherwise agreed to in writing by the city, before a franchise granted or license issued pursuant to this subchapter 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 subchapter, 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.

Indemnification.

Each utility operator shall indemnify, defend and hold harmless the city and its elected and appointed officials, officers, agents, employees and volunteers 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: (a) 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/or (b) providing or offering utility services over the facilities, whether such acts or omissions are authorized, allowed, or prohibited by this subchapter or by a franchise agreement, unless such liability arises directly from the city's negligence or willful misconduct. The acceptance of a license under HMC 9.48.025 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.

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 in a timely manner, unless the utility operator's failure arises directly from the city's negligence or willful misconduct or the utility operator establishes that the failure was caused by another franchisee, licensee, the city or the city's contractor.

(Ord. 6185 § 1, 2016)

§ 9.48.100 Compliance.

Every utility operator shall comply with all applicable federal and state laws, including regulations of any administrative agency thereof, as well as all applicable laws of the city and any commission established by or pursuant to the Charter, heretofore or hereafter adopted or established during the entire term of any license granted under this subchapter.

(Ord. 6185 § 1, 2016)

§ 9.48.110 Penalties.

Any person found in violation of any of the provisions of this subchapter, or of a license, franchise or other authorization to construct and maintain utility facilities in the rights-of-way, shall be subject to a penalty as set forth in HMC 1.08. A separate and distinct offense shall be deemed committed each day on which a violation occurs or continues.

Nothing in this subchapter shall be construed as limiting any judicial or other remedies the city may have at law or in equity, for enforcement of this subchapter.

(Ord. 6185 § 1, 2016)

§ 9.48.120 Severability and preemption.

The provisions of this subchapter 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.

If any article, section, subsection, sentence, clause, phrase, term, provision, condition or portion of this subchapter 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 subchapter 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 subchapter shall be valid and enforceable to the fullest extent permitted by law. In the event any provision is preempted as set forth in this subsection, 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 as set forth in this subsection 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. 6185 § 1, 2016)

§ 9.48.130 Regulatory fees and compensation not a tax.

The fees and costs provided for in this subchapter, and any compensation charged and paid for use of the rights-of-way provided for in this subchapter, 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.

The city has determined that any fee or tax provided for by this subchapter 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.

The fees and costs provided for in this subchapter are subject to applicable federal and state laws.

(Ord. 6185 § 1, 2016)

§ 9.48.140 Application to existing agreements.

To the extent that this subchapter is not in conflict with and can be implemented consistent with existing franchise agreements, this subchapter shall apply to all existing franchise agreements granted to utility operators by the city.

(Ord. 6000 § 1, 2011; Ord. 6185 § 1, 2016)