Chapter 12.05 STREETS AND SIDEWALKS

Article VI. Managing the Reasonable Access to the Public Right-of-Way, Establishing a Privilege Tax, and Setting Out Terms and Conditions for Performing Work in Rights-of-Way

12.05.270 Purpose and intent.

12.05.280 Jurisdiction and management of the public rights-of-way.

12.05.290 Regulatory fees and compensation not a tax.

12.05.300 Definitions.

12.05.310 Licenses.

12.05.320 Construction and restoration.

12.05.330 Location of facilities.

12.05.340 Leased capacity.

12.05.350 Maintenance.

12.05.360 Vacation.

12.05.370 Privilege tax.

12.05.380 Audits.

12.05.390 Insurance and indemnification.

12.05.400 Compliance.

12.05.410 Confidential/proprietary information.

12.05.420 Severability and preemption.

12.05.430 Application to existing agreements.

Article VII. Penalty

12.05.440 Penalty.

Article I. Street and Sidewalk Construction

12.05.010 Sidewalks.

All sidewalks within the city shall be constructed or reconstructed in compliance with the city standard specifications and drawings as adopted by resolution or resolutions of the city council. [Ord. 2156, 12-3-84; Ord. 1831, 10-4-76; Ord. 1656, 6-5-72; Ord. 992, 11-4-46; Ord. 929, 7-2-40. Code 2001 § 96.01.]

Penalty: See NMC 12.05.440.

12.05.020 Permits.

A. Any person who may desire to construct or is required by the city engineer to construct any sidewalk or curb upon public property in the city shall, before commencing work, apply to the city engineer for a permit; and such application shall specify the property along which such walk or curb is to be laid, the name of the person for whom same is to be constructed, by whom the same is to be done, and the time within which same is to be completed.

B. It is made the duty of the city engineer to issue permits and, upon the request of any person to whom a permit has been issued as herein provided and within a reasonable time thereafter, to set the grade and line stakes for the construction of the walk described in said permit, and to explain fully to such applicant the meaning and intent of such stakes. No person shall construct or cause to be constructed any walk or curb in the city until such grade and line stakes have been set. [Ord. 2048, 3-2-81; Ord. 929, 7-2-40. Code 2001 § 96.02.]

Penalty: See NMC 12.05.440.

12.05.030 Records and reports.

Deleted during 2011 recodification. [Ord. 2048, 3-2-81; Ord. 929, 7-2-40. Code 2001 § 96.03.]

Penalty: See NMC 12.05.440.

12.05.040 Construction and maintenance of sidewalks.

It shall be the duty of the owners of land adjoining any street or highway within the city to construct a portland cement sidewalk when directed by the city engineer. It shall be the duty of the city engineer to serve written notice to the property owner in accordance with NMC 12.05.050. It shall be the duty of the owners of land adjoining any sidewalk or curb, if the two are integral, to maintain both the sidewalk or curb in good repair to provide safe public access. [Ord. 2089, 7-7-82; Ord. 929, 7-2-40. Code 2001 § 96.04.]

Penalty: See NMC 12.05.440.

12.05.050 Notice.

If the owner of any such land adjoining any street in the city shall fail to have and keep in good repair the sidewalk and/or curb in front of, along and abutting upon such land and/or where no sidewalk or curb exists and in the opinion of the city engineer a sidewalk and/or curb or both is needed, the city engineer shall post a notice of such land describing the sidewalk to be constructed, repaired or reconstructed by termini or otherwise and directing such owner, owner’s agent or the occupant of such land to immediately construct, reconstruct or repair such sidewalk in a good and substantial manner and in accordance with the provisions of this chapter. Such notice shall describe such land by street number or otherwise shall state the date of posting same, shall require such owner, occupant or agent to complete such construction, reconstruction and/or repair within 90 days after such date of posting and shall state that a lien may be levied and assessed upon such land for the cost of the construction, reconstruction and/or repair of such sidewalk and that such owner, occupant or agent may be subjected to the penalties provided by this chapter in the event of failure to so construct, reconstruct and/or repair said sidewalk within the time specified by said notice. Said notice shall also set forth the provisions of NMC 12.05.080 as amended. The city engineer shall file with the city an affidavit of posting stating the date and place of such posting and send a similar notice by mail to the owner of such land if known or to the agent of such owner if known, directed to the last known post office address of such owner or agent. A mistake in the name of the owner or agent or a name other than that of the true owner or agent of such property shall not render void such notice, but in such case, the posted notice shall be sufficient. [Ord. 2733 Att. A, 2-7-11; Ord. 2048, 3-2-81; Ord. 1145, 2-1-54; Ord. 929, 7-2-40. Code 2001 § 96.05.]

12.05.060 Repair permits and enforcement.

Before reconstructing and/or repairing any such sidewalks, such owner, agent or occupant shall obtain a permit from the city engineer describing the nature and type of construction, repair and/or reconstruction which is to be done, together with the materials and specifications, and the name of the contractor who will do the work, all in accordance with the provisions of this chapter. Said owner, agent or occupant shall proceed to complete such construction, repair and/or reconstruction in accordance with such permit in this article within the said period of 90 days of posting such notice. If the owner, agent or occupant of such land shall fail, neglect or refuse to so complete such construction, repairs and/or reconstruction within said time, the city engineer shall make and complete the same keeping an accurate record and account of cost of labor and materials for the work done on the sidewalk or sidewalks in front of or abutting each parcel of land. The city engineer shall report to the city council the cost of such construction, repairs and/or reconstruction, segregated as to the sidewalk or portion of the sidewalk in front of, adjacent or abutting upon each separate lot or parcel of land. Said report shall also describe each lot or parcel of land in a manner sufficient for identification. [Ord. 2048, 3-2-81; Ord. 1145, 2-1-54; Ord. 929, 7-2-40. Code 2001 § 96.06.]

12.05.070 Assessment.

The city council shall exercise general supervision and authority over all sidewalk construction, repairs and/or reconstruction within the city, and it shall inspect and examine all reports of sidewalk construction, reconstruction and/or repair made by the city engineer and if it deems the cost of the construction, reconstruction and/or repair to be reasonable, it shall approve the same. Thereafter, the city council shall assess each lot, tract or parcel of land fronting on or abutting or adjoining such sidewalk so constructed, repaired and/or reconstructed in accordance with state law the cost of such construction, repairs and/or reconstruction as approved by the city council, together with the additional sum of 15 percent of such cost to defray cost of notice, engineering and advertising. Such assessment shall be entered on the docket of the city liens and collected in the same manner as is provided for special assessments for street improvements. [Ord. 2048, 3-2-81; Ord. 1145, 2-1-54; Ord. 929, 7-2-40. Code 2001 § 96.07.]

Cross-reference: See ORS Chapter 308 pertaining to assessments.

12.05.080 Liability for damages.

All owners of land within the corporate limits of the city who shall fail to keep and maintain in good repair all sidewalks constructed or existing along, abutting or adjacent to their said land shall be liable for all damages to any person or property resulting or arising from their fault or negligence in failing to so keep and maintain such sidewalks in good repair. A failure of said city, its officers or agents to give any notice in this chapter provided shall not constitute a defense to any cause of action for damages to persons or property arising under this article. [Ord. 1145, 2-1-54; Ord. 929, 7-2-40. Code 2001 § 96.08.]

Penalty: See NMC 12.05.440.

12.05.090 Permits and certificates.

A. Concurrent with the issuance of a building permit for the construction of a building for residential use or business structures or an addition to a dwelling or business structure, the value of which is $30,000 or more except as the city engineer may require on building permits of lesser value in accordance with NMC 12.05.040, the owner, builder or contractor to whom the building permit is issued shall meet the following requirements:

1. Construct a sidewalk within the dedicated right-of-way for the full frontage in which a sidewalk in good repair does not exist. The sidewalk construction shall be completed within the building construction period or prior to issuance of an occupancy permit, whichever is the lesser.

2. Dedicate right-of-way in accordance with the city transportation plan.

B. The city engineer may issue a permit and certificate allowing noncompliance with the provisions of subsection (A) of this section to the owner, builder or contractor when, in the city engineer’s opinion, the construction of a sidewalk is impractical for one or more of the following reasons:

1. Sidewalk grades have not and cannot be established for the property in question within a reasonable period of time.

2. Future installation of public utilities or street paving would, of necessity, cause severe damage to existing sidewalks.

3. Topography or contours make the construction of a sidewalk impractical.

4. The noncompliance provided in subsection (B)(1) of this section shall be temporary and shall cease to exist when grades are established for sidewalks by the public works department or when public utilities or street paving have been constructed. The permit shall indicate the reason for its issuance.

C. If the owner, builder or contractor considers any of the requirements impractical for any reason, they may appeal the decision to the planning commission.

D. If a sidewalk is not constructed within the time required by this section, then the city may construct it for the full street frontage in front of the property and proceed with the construction, assessment and collection of costs as provided for in NMC 12.05.070. [Ord. 2048, 3-2-81; Ord. 1857, 5-2-77; Ord. 929, 7-2-40. Code 2001 § 96.09.]

12.05.100 Closing of streets during construction.

Whenever new construction work or repair work is underway upon a street or part of a street, the contractor or person directly in charge of the work shall obtain a permit. With the consent of the chief of police, the street may be closed, by reason that the street is made dangerous for public traffic due to the work. The chief of police may also close the street or part of a street to public traffic, whenever such closing is necessary to properly carry on the work of construction or repair; and the street or part of a street shall remain closed during the period of work. [Ord. 1711, 9-17-73. Code 2001 § 96.10.]

12.05.110 Barriers.

Whenever a street or a part of a street is closed, the contractor or person directly in charge of the work shall construct and maintain at either end of the construction work, and other places as the city shall direct, proper and suitable barriers and signs notifying the public of the construction work and that the street or part of a street is closed to public traffic and closed to parking. [Ord. 1711, 9-17-73. Code 2001 § 96.11.]

Penalty: See NMC 12.05.440.

12.05.120 Prohibited action.

A barrier, as provided in NMC 12.05.110, is a traffic control device, as the definition of that term in NMC Title 10 indicates; and violation of the instructions of the barriers or signs is punishable under the provisions of NMC 10.05.120. [Ord. 1711, 9-17-73. Code 2001 § 96.12.]

Article II. Excavations

12.05.130 Permit.

Repealed by Ord. 2703. [Ord. 1765, 3-3-75. Code 2001 § 96.30.]

12.05.140 Refilling trenches.

Repealed by Ord. 2703. [Ord. 1765, 3-3-75. Code 2001 § 96.31.]

Article III. Driveway, Curb, and Gutter Construction

12.05.150 Definitions.

For the purpose of this article, the following definitions shall apply unless the context clearly indicates or requires a different meaning:

“Business driveway approach” means a driveway approach providing ingress and egress to any property other than residential property.

“Corner” means the point of intersection of the lines of two street curb faces extended into the street intersection.

“Curb parking space” means a length equal to 18 feet where an automobile or other vehicle can park.

“Driveway” means that portion of a street providing access to private property from the edge of the roadway or traveled portion of the street to the property line intended and used for ingress and egress of vehicles to a public street from private property.

“Driveway approach” means an area, construction or facility between the roadway of a public street and private property intended to provide access for vehicles from a roadway of a public street to private property. For clarification, a driveway approach must provide access to something definite on private property such as a parking area, a driveway or a door at least seven feet wide, intended and used for the entrance of a vehicle.

“Parcel of land” means a lot or lots, or a tract officially registered under one ownership.

“Person” means every natural person, firm, partnership, association or corporation.

“Resident driveway approach” means a driveway approach providing ingress and egress to residential property. [Ord. 1772, 4-7-75. Code 2001 § 96.40.]

12.05.160 Permits.

A. Permit Required. No person shall remove, alter or construct any curb, driveway or gutter on or in any public street, alley or other property owned by or dedicated to or used by the city and over which it has jurisdiction to regulate the matters covered by this chapter without first obtaining a permit from the city.

B. Application for Permit. An application for a permit shall be filed with the city recorder on a form prescribed by the city and shall contain such information and data as required by it.

C. Fees for Permits. Before any permit is issued, the applicant shall pay to the city a permit fee as set by city council resolution. [Ord. 1772, 4-7-75. Code 2001 § 96.41.]

Penalty: See NMC 12.05.440.

12.05.170 Supervision.

All work done under a permit issued in compliance with this article shall be under the direction and supervision of the city inspector. A permit issued under the provisions of this article may be revoked by the city inspector at any time the city inspector is satisfied that the work is not being performed according to the provisions of this article. [Ord. 1772, 4-7-75. Code 2001 § 96.42.]

12.05.180 Construction.

All driveways, curbs and approaches within the city shall be constructed in compliance with the city standard specifications and drawings adopted by resolution or resolutions of the city council. [Ord. 2156, 12-3-84; Ord. 1772, 4-7-75. Code 2001 § 96.43.]

Penalty: See NMC 12.05.440.

12.05.190 Maintenance and removal.

A. Every driveway approach or entrance to abutting property shall be maintained and kept in safe condition by the owner of the abutting property; and any such driveway approach shall not be so maintained and kept, or which shall interfere with or obstruct the drainage carried by such street or the use of said street for the purpose of travel, shall be repaired to conform with the specifications of this article and the city inspector, or be removed. Upon the termination of any driveway, whether by revocation of permit or expiration of term, or abandonment or otherwise, the authority, rights and privileges granted shall cease. The owner of the property to which said driveway leads shall, within six months after receiving notice by registered mail from the city, remove or modify the driveway improvements; and the sidewalks, parkway, curb and other areas where said improvements were located shall be restored or reconstructed to the end that the portion of said sidewalk space, parkway and curb areas which were used for said driveway shall be made safe for public travel and be placed in the same condition as the adjacent sidewalk space, parkway and curb areas. Said restoration work shall be done by said property owner at the property owner’s own expense.

B. In the event of the failure, neglect or refusal on the part of any property owners to remove driveways and restore the sidewalk spaces, parkways and curb areas to the restoration condition heretofore mentioned, the city may proceed to restore the same and charge the expense of the restoration to the properties to which said driveways have led; and the cost of the restoration shall become liens upon said properties, and shall be entered as liens upon the same lien docket of the city. [Ord. 1772, 4-7-75. Code 2001 § 96.44.]

Penalty: See NMC 12.05.440.

12.05.200 Variances.

Upon written application for a variance, the city council may grant variances from the requirements of this article if it determines that the following conditions are present:

A. The exception or variance desired arises from peculiar physical conditions not ordinarily existing in similar districts in the city, or is due to the nature of the business or operation on the abutting property.

B. That the exception or variance desired is not against the public interest, particularly safety, convenience and general welfare.

C. That the granting of the permit for the exception or variance will not adversely affect the rights of adjacent property owners or tenants.

D. The strict application of the terms of this article will work unnecessary hardship on the property owner or tenant. [Ord. 1772, 4-7-75. Code 2001 § 96.45.]

Article IV. Street and Sidewalk Obstructions

12.05.210 Structures placed on streets.

It shall be unlawful for any person, firm, association, or corporation to place or maintain any structure of any nature whatsoever in any right-of-way of the street or alley within the corporate limits of the city or to cause any structure to be placed therein without first obtaining a permit, from the city, to do so. [Ord. 2310, 11-4-91. Code 2001 § 96.55.]

Penalty: See NMC 12.05.440.

12.05.220 Construction.

Whenever during the course of the construction of any building or otherwise it shall become necessary for construction purposes or otherwise to use all or a part of said public street or alley adjoining said real property for said purposes, the contractor, owner, or person causing said public street or alley, or both, to be so used shall obtain a permit, from the city, authorizing to do so. [Ord. 2310, 11-4-91. Code 2001 § 96.56.]

Penalty: See NMC 12.05.440.

12.05.230 Merchandise on sidewalks or parking strips.

It shall be unlawful for any person, firm, or corporation to use either the sidewalks, or the land lying between the sidewalk line and the curb line known as a parking strip, for the purpose of displaying or storing wares, goods, or merchandise, or for any other commercial or other purposes without first obtaining a permit, from the city, to do so. [Ord. 2310, 11-4-91. Code 2001 § 96.57.]

Penalty: See NMC 12.05.440.

12.05.240 Permits.

The city planning and building director or designee is authorized to issue a permit for the use of public right-of-way to place and maintain structures, for construction activities required to construct structures on private property, and for allowing merchandise on the sidewalk or parking strip with certain conditions as listed below:

A. That the permit may be revoked at any time by the city planning and building director or designee;

B. That any structure, construction activity or other activity will not interfere with the public health and safety of the public;

C. That the area will be maintained in a safe manner at all times;

D. That the owner will hold the city harmless for any damage or injuries caused by the permitted use (proof of insurance may be required);

E. That the permitted use will be for a specific time period as stated in the permit;

F. Plans shall be submitted with any application to demonstrate that the above conditions can be met;

G. Use of the sidewalk or parking strip for merchandise will be limited to special events. [Ord. 2310, 11-4-91. Code 2001 § 96.58.]

12.05.245 Permit for use of the cultural district festival street.

It is the intention of the city to created a single, unified permit for use of the Newberg cultural district festival street. Holders of the festival street permit shall not be required to obtain separate permits (block party, noise, parade/special event, or temporary merchant), notwithstanding the code provisions requiring such permits. This permit is in addition to any rental or use agreement between the applicant and the cultural district executive board or designee. The festival street permit shall be issued according and subject to the following procedures:

A. The “Newberg cultural district festival street” is defined as the following area, and this area only: East Sheridan Street between North School and North Blaine Streets; and North Howard Street between East Hancock and East Sheridan Streets. Events beyond this area will be subject to general code permit requirements.

B. The city manager shall designate a festival street permit administrator. The administrator will review applications, submitted on a form supplied by the city, and issue permits in conformance with code provisions. The administrator may condition such permit on evidence of compliance with federal, state, or municipal law. Decisions of the administrator shall be appealable to the city manager, whose decisions shall be final.

C. Festival street permit applications shall be made not less than 10 business days prior to the event and shall be accompanied by an application fee, should the city council set such fee by resolution.

D. Applications submitted less than 10 business days prior to the event shall be processed at the sole discretion of the administrator. If a late application is accepted and a permit issued, the applicant shall pay a late fee, should the city council set such fee by resolution.

E. The administrator shall ensure that notification of the closure and the nature of the event will be given to residents or operators of facilities on the street(s) to be closed and the following city of Newberg departments: police department, fire department, engineering division, planning (community development), public works-maintenance, and the city manager’s office.

F. Property owners immediately adjacent to the street to be closed may appeal the closure to the administrator, who shall consider the basis of appeal and render a decision. Such decision shall be in the sole discretion of the administrator.

G. A permit issued under this section shall be equivalent to a permit issued under NMC 8.15.150(C)(2), but all other applicable provisions of NMC 8.15.150 that are not in conflict with this section shall apply.

H. A permit issued under this section shall be equivalent to a permit issued under NMC 2.15.470(C) and the chief of police shall designate the festival street permit administrator to make street closures decisions for the festival street in conjunction with issuance of permits under this section.

I. A permit issued under this section shall be equivalent to a license issued under NMC 5.25.010, but all other applicable provisions of Chapter 5.25 NMC that are not in conflict with this section shall apply.

J. Temporary merchants operating in the festival street pursuant to a permitted event shall be considered exempt under NMC 5.15.100(C), but shall otherwise comply with Chapter 5.15 NMC.

K. All applicants for a permit under this section for an event serving food, alcohol or both, shall obtain the required permits from the OLCC, health department, or other agency. Copies of such permits shall be provided to the administrator upon request. Failure to provide proof of such permits may be cause to revoke any permit granted under this section.

L. A permit issued under this section may be revoked by the city manager or designee in the case of an emergency or safety hazard.

M. Nothing in this section affects the city’s ability to protect the public against harmful acts or effects under remedies supplied in other sections of this code or other applicable provisions of law. [Ord. 2779 § 1, 2-17-15.]

Article V. Maintenance of Planter Strips, Landscaping, and Trees in the Right-of-Way

12.05.250 Required maintenance of planter strips.

A. “Planter strip” is defined as the area between the curb and sidewalk, between the sidewalk and property line, or between the edge of the street and property line that contains or is designed to contain landscaping or plant materials. Roadside ditches are generally not considered planter strips.

B. It shall be the duty of the owners of land adjoining any street or highway within the city to maintain planter strips adjoining their properties. Maintenance shall include, but not be limited to, removing or cutting weeds so the area is not overgrown, mowing grasses (except ornamental grasses) to a height of no more than nine inches, irrigating as necessary to establish new plantings, removing dead plants, pruning trees and shrubs to keep them healthy and to keep sidewalks and streets clear from obstruction, and removing litter.

C. If the owner of such land adjoining any street or highway in the city shall fail to adequately maintain the planter strip, a designated city employee shall notify the adjoining property owner of the need to maintain the area. Notice may be mailed or personally delivered and shall describe the required time frame to complete the maintenance. If the owner fails to maintain the area within the time frame noted, the city may perform the required maintenance, bill the owner for the maintenance costs and assess a lien on the property for any unpaid maintenance costs.

D. No signs shall be placed within the planter strip, except as allowed under NMC 15.435.110. [Ord. 2632, 1-3-06. Code 2001 § 96.60.]

12.05.260 Tree removal and pruning.

A. All street trees that were required to be installed under a street tree plan or similar requirement shall be maintained in a healthy condition by the adjoining property owner, or replaced with a tree consistent with the approved street tree plan for that location or, if none, with any approved street tree plan for the area or, if none, with any tree from the city’s approved street tree list.

B. No person shall remove any tree greater than two inches in diameter from the public right-of-way without first obtaining a permit from the city to do so, except as noted below.

C. Because mature, healthy trees contribute significantly to the beauty and character of the community, city staff generally will not issue a permit to remove a street tree greater than eight inches in diameter unless the tree is diseased, rotten, dead or dying, significantly misshapen, an obstruction, or otherwise a hazard. The designated staff person may require a report from a certified arborist to verify the tree’s condition before removal.

D. No person shall top or severely prune a tree greater than two inches in diameter in the right-of-way without first obtaining a permit from the city to do so, except where such pruning is required by city ordinances or requested by the city, such as to maintain clearances from sidewalks, street signs, streets, or alleys. “Severe pruning” is defined as severing the trunk, or cutting back the trunk or a limb larger than four inches in diameter to a stub. The designated staff person may issue a permit to prune a tree, remove trees which are dead, limbs or roots which have been severely damaged by storms or other causes or which otherwise pose a danger to the public health, safety or general welfare, to alter the shape of trees located under utility wires or other obstructions where other pruning practices are impractical, or to maintain the health and overall attractive shape of the tree. The designated staff person may require that the pruning be done by or under supervision of a certified arborist.

E. The designated staff person may require that the tree removed be replaced with a tree in accordance with an approved street tree plan or from the city’s approved street tree list.

F. The above requirements do not apply to tree pruning or removal by city staff or agents. They also do not apply to public utility agencies or their agents pruning or removing trees as necessary to comply with applicable utility clearance standards. They do not apply in emergency circumstances. [Ord. 2632, 1-3-06. Code 2001 § 96.61.]

Article VI. Managing the Reasonable Access to the Public Right-of-Way, Establishing a Privilege Tax, and Setting Out Terms and Conditions for Performing Work in Rights-of-Way

12.05.270 Purpose and intent.

The purpose and intent of this article is to:

A. Permit and manage reasonable access to the public rights-of-way of the city for utility purposes and conserve the limited physical capacity of those public 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 public 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 public rights-of-way;

D. Assure that all utility companies, persons and other entities owning or operating facilities and/or providing services within the city register and 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. 2703 § 1 (Exh. A), 12-15-08. Code 2001 § 96.71.]

12.05.280 Jurisdiction and management of the public rights-of-way.

A. The city has jurisdiction and exercises regulatory management over all public 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 public 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 public 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 article 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. 2703 § 1 (Exh. A), 12-15-08. Code 2001 § 96.72.]

12.05.290 Regulatory fees and compensation not a tax.

A. The fees and costs provided for in this article, and any compensation charged and paid for use of the public rights-of-way provided for in this article, are separate from, and in addition to, any and all federal, state, local, and city charges as may be levied, imposed, or due from a 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 provided for by this article is not subject to the property tax limitations of Article XI, Sections 11 and 11b of the Oregon Constitution. These fees are not imposed on property or property owners.

C. The fees and costs provided for in this article are subject to applicable federal and state laws. [Ord. 2703 § 1 (Exh. A), 12-15-08. Code 2001 § 96.73.]

12.05.300 Definitions.

For the purpose of this article, the following terms, phrases, words and their derivations shall have the meanings 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.

“Cable service” 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.

“City” means the City of Newberg, an Oregon municipal corporation, and individuals authorized to act on the city’s behalf.

“City council” means the elected governing body of the City of Newberg, Oregon.

“City facilities” means city or publicly owned structures or equipment located within the right-of-way or public easement used for governmental purposes.

“License” means the authorization granted by the city to a utility operator pursuant to this article.

“Person” includes any individual, firm, sole proprietorship, corporation, company, partnership, co-partnership, joint stock company, trust, limited liability company, association or other organization, including any natural person or any other legal entity.

“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 an easement for the constructing, reconstructing, operating, maintaining, inspecting, and repairing of utilities facilities. “Public utility easement” does not include an easement solely for the constructing, reconstructing, operating, maintaining, inspecting, and repairing of city facilities.

“Right-of-way” 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 or parkland. 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.

“State” means the State of Oregon.

“Telecommunications services” means the transmission for hire, of information in electromagnetic frequency, electronic or optical form, including, but not limited to, voice, video or data, whether or not the transmission medium is owned by the provider itself and whether or not the transmission medium is wireline. Telecommunications service includes all forms of telephone services and voice, data and video transport, but does not include: (1) cable service; (2) open video system service, as defined in 47 CFR 76; (3) private communications system services; (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 of 1996.

“Utility facility” or “facility” 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 service” 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, telecommunications services, cable services, water, wastewater, and/or stormwater 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 operator” or “operator” means any person who owns, places, operates or maintains a utility facility within the city.

“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. 2703 § 1 (Exh. A), 12-15-08. Code 2001 § 96.74.]

12.05.310 Licenses.

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 constructing, placing or locating any utility facilities in the right-of-way.

2. Every person that owns or controls utility facilities in the right-of-way as of the effective date of the ordinance codified in this article 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 article or (b) the expiration of a valid franchise from the city, unless a new franchise is granted by the city prior to the expiration date or other date agreed to in writing by the city.

B. License Application. The license application shall be on a form provided by the city, and shall be accompanied by any additional documents required by the application 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 article.

C. License Application Fee. The application shall be accompanied by a nonrefundable application fee or deposit set by resolution of the city council 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 article, the continuing capacity of the right-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 article, consistent with applicable state and federal law. The franchise may conflict with the terms of this article with the review and approval of the city council. The franchisee shall be subject to the provisions of this article to the extent such provisions are not in conflict with the franchise.

F. Rights Granted.

1. The license granted hereunder shall authorize and permit the licensee, subject to the provisions of the municipal 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. The license granted pursuant to this article 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 article 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 right-of-way, constructing, laying down, repairing, relocating or removing city water or wastewater 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 right-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 NMC 12.05.330(C), (D) and (E), in a manner acceptable to the city, and subject to 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 article for the portion of the facilities and extent of 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 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 article 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 city council may terminate or revoke the license granted pursuant to this article for any of the following reasons:

a. Violation of any of the provisions of this article;

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 rights-of-way after construction as required by this article 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:

a. The egregiousness of the misconduct;

b. The harm that resulted;

c. Whether the violation was intentional;

d. The utility operator’s history of compliance; and/or

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

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 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 city council, which shall provide a duly noticed public hearing to determine whether the license shall be terminated or revoked. [Ord. 2703 § 1 (Exh. A), 12-15-08. Code 2001 § 96.75.]

12.05.320 Construction and restoration.

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.

B. Construction Permits.

1. Except as set forth in subsections (B)(2) and (3) of this section, no person shall construct, install, or perform any work on utility facilities 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 applied for and received the license required by this article, or has a current franchise with the city, and all applicable fees have been paid.

2. In the event of an emergency, a utility operator may undertake work in the right-of-way without first obtaining a permit; provided, that the utility operator notify the city immediately or as soon as reasonably possible, and obtain any required permits as soon as reasonably possible after cessation of the emergency. For purposes of this section, “emergency” means a circumstance in which immediate repair to damaged or malfunctioning facilities is necessary to restore service or prevent imminent harm to persons or property.

3. The city manager or designee is authorized to adopt policies setting forth additional exceptions to the permit requirement set forth in subsection (B)(1) of this section, and to develop and revise right-of-way permits, standard permit conditions and construction standards necessary to ensure that all work performed in the public right-of-way is conducted in a manner that minimizes disturbance to the public, controls quality of the repairs and otherwise protects the public interest.

C. 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.

1. The performance bond or other form of surety acceptable to the city shall remain in force until 60 days after substantial completion of the work, as determined in writing by the city, including restoration of rights-of-way and other property affected by the construction.

2. 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 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.

D. A utility operator shall preserve and protect from injury other utility operators’ 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 utilities that may be subject to damage from the permitted work. A utility operator shall be responsible for all damage to public or private property resulting from its failure to comply with the requirements of the permit authorizing the work to be completed by the utility operator or with applicable laws, ordinances and regulations.

E. Restoration.

1. When a utility operator, or any person acting on its behalf, does any work in or affecting any public rights-of-way, it shall, at its own expense, promptly remove any obstructions therefrom and 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 city manager or designee.

2. 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 the affected rights-of-way or property. Such temporary restoration shall be at the utility operator’s sole expense and the utility operator shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. Any corresponding modification to the construction schedule may be subject to approval by the city.

3. If the utility operator fails to restore rights-of-way or property as required in this article, 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 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 utility operator fails to restore the rights-of-way or property as required in this article, the city shall cause such restoration to be made at the expense of the utility operator.

4. 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 such rights-of-way or property.

F. Inspection. Every utility operator’s facilities shall be subject to the right of periodic inspection by the city to determine compliance with the provisions of this article 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 article and applicable state and city codes, ordinances, rules and regulations.

G. Coordination of Construction. All utility operators are required to make a good faith effort to both cooperate with and coordinate their construction schedules with those of the city and other users of the 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 rights-of-way.

3. All construction locations, activities and schedules within rights-of-way shall be coordinated as ordered by the city manager or designee, to minimize public inconvenience, disruption, or damages. [Ord. 2703 § 1 (Exh. A), 12-15-08. Code 2001 § 96.76.]

12.05.330 Location of facilities.

A. Location of Facilities. Unless otherwise agreed to in writing by the city, whenever any existing electric utilities, cable facilities or telecommunications 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. 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 where the utility operator’s location or proposed location does not comply with applicable state and city codes, ordinances, rules and regulations.

B. Interference with 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 and regulations.

C. Relocation of Utility Facilities.

1. A utility operator shall, at no cost to the city, relocate its aerial utility facilities underground when required to do so in writing by the city, consistent with applicable state and federal law.

2. 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 when requested to do so in writing by the city. Nothing herein shall be deemed to preclude the utility operator from requiring or requesting reimbursement or compensation from a third party, pursuant to applicable laws, regulations, tariffs, agreements or otherwise; provided, that such reimbursement or compensation shall not delay the utility operator’s obligation to comply with this section in a timely manner.

3. The city shall provide written notice of the amount of time for removal, relocation, change, alteration or undergrounding. 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 after consultation with the affected utility operator(s), 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 city manager or designee, 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 license, franchise or this article.

d. The utility operator is in violation of a material provision of this article 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 public 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 and will use qualified personnel or contractors consistent with applicable state and federal safety laws and regulations.

2. If the utility operator fails to remove any facility when required to do so under this article, 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 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 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 plans upon request of the city, but not more than once per year. [Ord. 2703 § 1 (Exh. A), 12-15-08. Code 2001 § 96.77.]

12.05.340 Leased capacity.

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. The utility operator shall not be required to provide such information if the utility operator does not have such information or if disclosure is prohibited by applicable law or a valid agreement between the utility operator and the lessee. [Ord. 2703 § 1 (Exh. A), 12-15-08. Code 2001 § 96.78.]

12.05.350 Maintenance.

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. [Ord. 2703 § 1 (Exh. A), 12-15-08. Code 2001 § 96.79.]

12.05.360 Vacation.

The city shall notify the affected utility operator of vacation proceeding when notifying adjacent property owners. If the city vacates any right-of-way, or portion of a right-of-way, 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 cost or 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. 2703 § 1 (Exh. A), 12-15-08. Code 2001 § 96.80.]

12.05.370 Privilege tax.

A. Privilege Tax.

1. Except as set forth in subsections (B) and (C) of this section, every utility operator shall pay the privilege tax calculated as a percentage of gross revenues earned from the provision of utility service to customers within the city at the following rates for each service provided during the term of the license:

Electric	5%
Natural gas	5%
Telecommunications utility (as defined in ORS 759.005)	7%
Other telecommunications services providers	5%
Cable	5%
Water	7%
Wastewater	7%
Stormwater	7%

2. Unless otherwise agreed to in writing by the city, the privilege tax 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. Each payment shall be accompanied by an accounting of gross revenues, if applicable, and a calculation of the amount payable.

3. For purposes of subsection (A) of this section, “gross revenues” means any and all revenue, of any kind, nature or form, without deduction for expense, less net uncollectibles, subject to all applicable limitations in federal or state law.

B. Transmission Line Fee. A utility operator that does not earn gross revenues from the provision of utility service to customers within the city shall pay the transmission line fee set by city council resolution or set forth in the license granted by the city. The fee may be a flat fee per lineal foot of utility facilities in the city or such other fee determined by the city council after consideration of the utility operator’s use or proposed use of the right-of-way. Unless otherwise agreed to in writing by the city, the fee shall be paid annually, in arrears, for each year during the term of this license within 30 days after the end of each calendar year, and shall be accompanied by information sufficient to illustrate the calculation of the amount payable.

C. Attachment Fee. A utility operator whose only facilities in the right-of-way are facilities mounted on structures within the right-of-way, which structures are owned by another person, and with no facilities strung between such structures or otherwise within, under or above the right-of-way, shall pay the attachment fee set by city council resolution or set forth in the license granted by the city. The fee may be a flat fee per structure or such other fee determined by the city council after consideration of the utility operator’s use or proposed use of the right-of-way. Unless otherwise agreed to in writing by the city, the fee shall be paid annually, in arrears, for each year during the term of this license within 30 days after the end of each calendar year, and shall be accompanied by information sufficient to illustrate the calculation of the amount payable.

D. 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.

E. The utility operator shall pay interest at the rate of nine percent per year for any payment due pursuant to this section made after the due date.

F. The privilege tax required by this section shall be subject to all applicable limitations imposed by federal or state law. The city reserves the right to enact any and all other taxes applicable to the utilities subject to this article. [Ord. 2836 § 1, 7-2-18; Ord. 2703 § 1 (Exh. A), 12-15-08. Code 2001 § 96.81.]

12.05.380 Audits.

A. Within 30 days of a written request from the city, or as otherwise agreed to in writing by the city, the provider of utility service shall:

1. Furnish the city with information sufficient to demonstrate that the utility operator is in compliance with all the requirements of this article and its franchise agreement, if any, including but not limited to the privilege tax payments required by NMC 12.05.370 and the franchise fee required in any franchise.

2. 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 public rights-of-way or public utility easements. Access shall be provided within the Portland, Oregon, metropolitan area 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 demonstrate that the utility operator has underpaid the privilege tax or franchise fee by five 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 NMC 12.05.370(E) 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. 2703 § 1 (Exh. A), 12-15-08. Code 2001 § 96.82.]

12.05.390 Insurance and indemnification.

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:

a. Comprehensive general liability insurance with limits not less than:

i. Two million dollars for bodily injury or death to each person;

ii. Two million dollars for property damage resulting from any one accident; and

iii. Two million dollars for all other types of liability.

b. Motor vehicle liability insurance for owned, nonowned and hired vehicles with a limit of $1,000,000 for each person and $2,000,000 for each accident.

c. Worker’s compensation within statutory limits and employer’s liability with limits of not less than $1,000,000.

d. Comprehensive form premises operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than $2,000,000.

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 cover, or the certificate of insurance shall name or cover, as additional insureds the city and its officers, agents, and employees. The coverage must apply as to claims between insureds on the policy. The certificate of insurance 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 and provide the city with a replacement certificate of insurance as outlined in this section. 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 article 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, if applicable, and compliance with the terms of this article, 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 NMC 12.05.320(C) for construction of facilities.

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 article or by a franchise agreement. The acceptance of a license under NMC 12.05.310 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. 2703 § 1 (Exh. A), 12-15-08. Code 2001 § 96.83.]

12.05.400 Compliance.

Every utility operator shall comply with all federal and state laws and regulations, including regulations of any administrative agency of the federal and state governments, 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 article. [Ord. 2703 § 1 (Exh. A), 12-15-08. Code 2001 § 96.84.]

12.05.410 Confidential/proprietary information.

If any utility operator is required by this article to provide books, records, maps or information to the city that utility operator 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 they are clearly designated as such by the utility operator at the time of disclosure to the city. The city shall not be required to incur any costs to protect such document, except as to the city’s routine internal procedures for complying with Oregon public records law. [Ord. 2703 § 1 (Exh. A), 12-15-08. Code 2001 § 96.85.]

Cross-reference: See ORS 192.505 and ORS Chapter 192, et seq.

12.05.420 Severability and preemption.

A. The provisions of this article 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 article 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 article 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 of this article, and each remaining section, subsection, clause, phrase, term, provision, condition, covenant and portion of this article 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. 2703 § 1 (Exh. A), 12-15-08. Code 2001 § 96.86.]

12.05.430 Application to existing agreements.

To the extent that this article is not in conflict with and can be implemented consistent with existing franchise agreements, this article shall apply to all existing franchise agreements granted to utility operators by the city. [Ord. 2703 § 1 (Exh. A), 12-15-08. Code 2001 § 96.87.]

Article VII. Penalty

12.05.440 Penalty.

A. Any person violating any of the provisions of this chapter for which no penalty is otherwise provided shall have committed a city Class 4 civil infraction and shall be processed in accordance with the procedure set forth in Chapter 2.30 NMC, Article IV, Uniform Civil Infraction Procedure. Each day that a violation of this chapter shall continue shall be considered a separate violation.

B. Any person violating any of the provisions of NMC 12.05.210 through 12.05.240 shall have committed a city Class 5 civil infraction and shall be processed in accordance with the procedures set forth in Chapter 2.30 NMC, Article IV, Uniform Civil Infraction Procedure.

C. Any person violating any of the provisions of NMC 12.05.270 through 12.05.430 shall have committed a city Class 1 civil infraction and shall be processed in accordance with the procedure set forth in Chapter 2.30 NMC, Article IV, Uniform Civil Infraction Procedure.

D. 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. Each violation of the provisions of this chapter constitutes a separate civil infraction in accordance with the class above indicated. [Ord. 2703 § 1 (Exh. A), 12-15-08; Ord. 2310, 11-4-91; Ord. 2163, 4-1-85; Ord. 1772, 4-7-75; Ord. 1765, 3-3-75; Ord. 929, 3-25-40. Code 2001 § 96.99.]