Chapter 12.35
UTILITY USE OF RIGHTS-OF-WAY
Sections:
12.35.010 Jurisdiction and management of the public rights-of-way.
12.35.020 Regulatory fees and compensation not a tax.
12.35.030 Registration of utility operators and providers.
12.35.035 Construction standards.
12.35.040 Location of utility facilities.
12.35.010 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 public right-of-way. The city has jurisdiction and regulatory management of each public right-of-way whether the legal interest in the public right-of-way was obtained by grant, dedication, prescription, reservation, condemnation, annexation, foreclosure or other means.
C. No person may occupy or encroach on a public right-of-way without the permission of the city. The city grants permission to use public rights-of-way by licenses, franchises and permits.
D. The exercise of jurisdiction and regulatory management of a public right-of-way by the city is not official acceptance of the public right-of-way, and does not obligate the city to maintain or repair any part of the public right-of-way.
E. The city retains the right and privilege to cut or move any utility facilities located within the public rights-of-way in the city, as the city may determine to be necessary, appropriate or useful in response to a public health or safety emergency. (Ord. 5-2024 § 2 (Exh. A); Ord. 4-1999 § 1)
12.35.020 Regulatory fees and compensation not a tax.
A. The fees and costs provided for in this chapter, and any compensation charged and paid for use of the public rights-of-way provided for in this chapter, 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 or provider, 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 chapter 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 chapter are subject to applicable federal and state laws. (Ord. 5-2024 § 2 (Exh. A); Ord. 4-1999 § 1)
12.35.025 Definitions.
For the purpose of this code the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The words “shall” and “will” are mandatory and “may” is permissive. Words not defined herein shall be given the meaning set forth in the Communications Policy Act of 1934, as amended, the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996. If not defined there, the words shall be given their common and ordinary meaning.
1. “Cable service” is to be defined consistent with federal laws and means the one-way transmission to subscribers of video programming, or other programming service, and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
2. “City” means the city of Fairview, an Oregon municipal corporation, and individuals authorized to act on the city’s behalf.
3. “City council” means the elected governing body of the city of Fairview, Oregon.
4. “City property” means and includes all real property owned by the city, other than public rights-of-way and public utility easements as those are defined herein, and all property held in a proprietary capacity by the city, which are not subject to public right-of-way franchising as provided in this code.
5. “Communications services” means any service provided for the purpose of transmission of information including, but not limited to, voice, video, or data, without regard to the transmission protocol employed, whether or not the transmission medium is owned by the provider itself. “Communications service” includes all forms of telephone services and voice, video, data or information transport, but does not include: (a) cable service; (b) open video system service, as defined in 47 C.F.R. Part 76; (c) public communications systems; (d) 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 (e) direct-to-home satellite service within the meaning of Section 602 of the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56 (1996).
6. “Days” means calendar days unless otherwise specified.
7. “Emergency” means a circumstance, as determined by the city, in which immediate work to utility facilities is necessary to restore lost service or prevent immediate harm to persons or property.
8. “Federal Communications Commission” means the federal administrative agency, or its lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers on a national level.
9. “Franchise” means an agreement between the city and a utility operator which grants a privilege to use public rights-of-way within the city for a dedicated purpose and for specific compensation.
10. “Grantee” or “licensee” means the person to which a franchise or license is granted by the city.
11. “Oregon Public Utility Commission” means the statutorily created state agency in the state of Oregon responsible for licensing, regulation and administration of certain utility providers as set forth in Oregon law, or its lawful successor.
12. “Person” means an individual, corporation, company, association, joint stock company or association, firm, partnership, limited liability company or governmental entity.
13. “Public communications system” means any system owned or operated by a government entity or entities for its exclusive use for internal communications or communications with other government entities, and includes services provided by the state of Oregon pursuant to ORS 283.140. “Public communications system” does not include any system used for sale or resale, including trade, barter or other exchange of value, of communications services or capacity on the system, directly or indirectly, to any person.
14. “Public rights-of-way” means and includes the streets, roads, highways, bridges, alleys, sidewalks, public utility easements, and all other public ways or areas, including the subsurface under and air space over these areas, that are generally open to the public for vehicular and pedestrian travel, but does not include parks, parkland or other city property. This definition applies only to the extent of the city’s right, title, interest or authority to grant a license or franchise to occupy and use such areas for utility facilities.
15. “Public utility easement” means any easement granted to or owned by the city and acquired, established, dedicated or devoted for public utility purposes. “Public utility easement” does not include an easement solely for the construction, reconstruction, operation, maintenance, inspection and repair of city facilities, or where the proposed use by the utility operator is inconsistent with the terms of any easement granted to the city.
16. “State” means the state of Oregon.
17. “Utility facilities” or “facilities” means the plant, equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, cable, wires, plant and equipment located or to be located under, on, or above the surface of the ground within the public right-of-way in the city and used or to be used for the purpose of providing utility services.
18. “Utility operator” means any person who owns, operates or controls a utility facility within the public rights-of-way in the city.
19. “Utility provider” means a person that provides utility services using utility facilities in the city, whether or not the utility facilities are owned by such provider.
20. “Utility services” means the provision, by means of utility facilities permanently located within, under or above the public rights-of-way, whether or not such facilities are owned by the service provider, of electricity, natural gas, communications services, cable services, water, sewer or storm sewer to or from customers within the corporate boundaries of the city, or the transmission of any of these services through the city whether or not customers within the city receive those transmissions or services.
21. “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. 5-2024 § 2 (Exh. A); Ord. 4-1999 § 1)
12.35.030 Registration of utility operators and providers.
A. Registration Required.
1. 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.
2. Every person providing utility services to customers within the city as of the effective date of this chapter shall register within 30 days of the effective date of this chapter.
3. A registrant that provides additional utility services not listed on its current registration shall submit a new registration application that lists such services not later than 30 days after commencing the provision of those utility services to customers in the city.
B. Application. Applicants shall provide the following information:
1. The identity and legal status of the registrant, including the name, address, and telephone number of the duly authorized officer, agent, or employee responsible for the accuracy of the registration information.
2. The name, address, and telephone number for the duly authorized officer, agent, or employee to be contacted in case of an emergency.
3. Any applicable approvals from the Oregon Public Utility Commission or the Federal Communications Commission.
4. A description of the registrant’s existing or proposed utility services within the city.
5. Information sufficient to determine whether the utility services provided, or to be provided, by the registrant constitute an occupation or privilege subject to any business license requirements. A copy of the business license or the license number must be provided, if applicable.
C. Annual Registration. After registering with the city pursuant to subsection A of this section, each registrant shall, by December 31st of each year, file with the city a new registration form if it intends to provide any utility services at any time in the following calendar year. Registrants that file an initial registration pursuant to subsection A of this section on or after September 30th shall not be required to file an annual registration until December 31st of the following year, except as provided in subsection (A)(3) of this section.
D. Registration Fee. Each application for registration shall be accompanied by a nonrefundable registration fee in the amount established by resolution of the city council. (Ord. 5-2024 § 2 (Exh. A); Ord. 4-1999 § 1)
12.35.035 Construction standards.
A. General. No person shall commence or continue with any work or operation of utility facilities within any portion of the public rights-of-way except as provided in this chapter.
B. Construction Codes. Utility facilities shall be constructed, installed, operated and maintained in accordance with, and permittees shall at all times comply with, all applicable federal, state and local laws, codes, ordinances, rules and regulations, including the National Electrical Code and the National Electrical Safety Code and the requirements of the city’s applicable design and construction standards.
C. Construction Permits.
1. Except as provided in subsection (C)(2) of this section or as otherwise agreed to in writing by the city, no person shall construct or install any utility facilities or perform any work within any portion of the public rights-of-way without first obtaining all applicable construction permits and paying the construction permit fees established pursuant to subsection G of this section.
2. In the event of an emergency, a utility operator with a license pursuant to this chapter or a valid franchise agreement, or the utility operator’s contractor, may perform work on its utility facilities without first obtaining a permit from the city; provided, that, to the extent reasonably feasible, it attempts to notify the city prior to commencing the emergency work and in any event applies for a permit from the city and pays all applicable permit fees as soon as reasonably practicable, but not more than 48 hours after commencing the emergency work.
3. No permit shall be issued for the construction or installation of utility facilities or any work within the public rights-of-way unless the utility operator has first applied for and received a license pursuant to FMC 12.35.045 or holds a valid franchise from the city.
D. Permit Applications. Applications for construction permits 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:
1. That the construction, installation or other work in the public rights-of-way related to utility facilities will be in accordance with all applicable laws, codes, ordinances, rules and regulations and the license or franchise agreement.
2. The location and route of all utility facilities to be installed above ground, including on existing utility poles.
3. The location and route of all new utility facilities on or in the public 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 which are within the public rights-of-way. Existing facilities shall be differentiated on the plans from new construction.
4. The location of all of applicant’s existing underground utility facilities, including conduits, ducts, pipes, mains and installations which are within the public rights-of-way along the underground route proposed by the applicant. A cross-section shall be provided showing new or existing facilities in relation to the street, curb, sidewalk or public right-of-way.
5. The construction methods to be employed for protection of existing structures, fixtures, and facilities within or adjacent to the public rights-of-way, and description of any improvements that applicant proposes to temporarily or permanently remove or relocate.
6. The applicant has an adequate traffic control plan to protect bicyclists, pedestrians, construction personnel, and vehicular traffic, and to warn and safeguard the public against injury or damage resulting from the work.
E. Applicant’s Verification. All permit applications shall be accompanied by the verification of a registered professional engineer, or other qualified and duly authorized representative of the applicant, that the drawings, plans and specifications submitted with the application comply with applicable technical laws, codes, ordinances, rules and regulations.
F. Construction Schedule. All permit applications shall be accompanied by a written construction schedule, which shall include a deadline for completion of construction. The construction schedule is subject to approval by the city.
G. Construction Permit Fee. Prior to issuance of a construction permit, the applicant shall pay a permit fee in an amount determined by resolution of the city council.
H. Issuance of Permit. If satisfied that the applications, plans and documents submitted comply with all requirements of this code and the license, the city shall issue a permit authorizing work in the public rights-of-way, subject to such further conditions, restrictions or regulations affecting the time, place and manner of performing the work as the city may deem necessary or appropriate.
I. Notice of Construction. Except in the case of an emergency, the permittee shall notify the city not less than two working days in advance of any work in the public rights-of-way.
J. Compliance With Permit. All construction practices and activities shall be in accordance with the permit and approved final plans and specifications for the facilities. The city and its representatives shall be provided access to the work site and such further information as they may require to ensure compliance with such requirements.
K. Noncomplying Work. All work that does not comply with the permit, the approved or corrected plans and specifications for the work, or the requirements of this code, shall be promptly removed or corrected at the sole cost and expense of the permittee.
L. Completion of Construction. The permittee shall promptly complete all construction activities so as to minimize disruption of the public rights-of-way and other public and private property. All construction work within the public 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 pursuant to the schedule submitted and approved by the appropriate city official as provided in subsection F of this section.
M. As-Built Drawings. If requested by the city, the permittee shall furnish the city with two complete sets of plans in a format acceptable to the city drawn to scale and certified to the city as accurately depicting the location of all utility facilities constructed pursuant to the permit. These plans shall be submitted to the public works director or designee within 60 days after completion of construction, in a format acceptable to the city.
N. Restoration of Public Rights-of-Way.
1. When a permittee, or any person acting on its behalf, does any work in or affecting any public rights-of-way or city property, it shall, at its own cost and expense, promptly remove any obstructions therefrom and, unless otherwise directed by the city, restore such public rights-of-way 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 as determined by the public works director or designee.
2. If weather or other conditions do not permit the complete restoration required by this section, the permittee shall temporarily restore the affected public rights-of-way or property. Such temporary restoration shall be at the permittee’s sole cost and expense and the permittee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. Any corresponding modification to the construction schedule shall be subject to approval by the city.
3. If the permittee fails to restore any portion of the public rights-of-way or property as required in this chapter, the license and the permit issued by the city, the city shall give the permittee written notice and provide the permittee a reasonable period of time not exceeding 30 days to restore the public rights-of-way or property. If, after said notice, the permittee fails to restore the public rights-of-way or property to as good a condition as existed before the work was undertaken or as otherwise directed by the city pursuant to this subsection N, the city shall cause such restoration to be made at the sole cost and expense of the permittee.
4. A permittee 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 public rights-of-way or property.
O. Performance and Completion Bond. Unless otherwise agreed to 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 permittee’s work within the public rights-of-way in the city shall be provided before construction is commenced.
1. The surety shall remain in force until 60 days after substantial completion of the work, as determined in writing by the city, including restoration of public rights-of-way and other property affected by the construction.
2. The surety shall guarantee, to the satisfaction of the city:
a. Timely completion of construction;
b. Construction 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 public rights-of-way and other property affected by the construction; and
e. Timely payment and satisfaction of all claims, demands or liens for labor, material, or services provided in connection with the work. (Ord. 5-2024 § 2 (Exh. A); Ord. 4-1999 § 1)
12.35.040 Location of utility facilities.
A. Facilities. Upon request, each grantee shall provide the city with an accurate map or maps, in a format acceptable to the city, certifying the location of all of its utility facilities within the public rights-of-way in the city.
B. Location of Facilities. Whenever any existing electric utilities, cable service facilities or telecommunications service facilities are located underground within a public right-of-way in the city, a grantee proposing to occupy the same public right-of-way must also locate its utility facilities underground. This requirement shall not apply to the installation of facilities used for transmission of electric energy at nominal voltages in excess of 35,000 volts, or to antennas, pedestals, cabinets or other equipment of any utility operator where underground operation is not technically feasible and the city has approved an above-ground location.
C. Interference With the Public Rights-of-Way. No grantee may locate or maintain its utility facilities so as to unreasonably interfere with the use of the public rights-of-way by the city, by the general public or by other persons authorized to use or be present in or upon the public rights-of-way. All use of public rights-of-way shall be consistent with city codes, ordinances, rules and regulations.
D. Relocation or Removal of Facilities.
1. When requested to do so in writing by the city, a utility operator shall, at no cost or expense to the city, temporarily or permanently remove, relocate, change or alter the position of any utility facility within a public right-of-way, including relocation of aerial facilities underground; provided, that underground relocation shall not be required for facilities for which underground operation is not technically feasible and the city has approved the continued use of the above-ground location.
2. The city will cooperate with the utility operator in securing alternate locations in the public rights-of-way; provided, that the city shall bear no responsibility or cost to secure any alternate location either within or outside the public rights-of-way, or otherwise compensate or assist the utility operator in relocation of the facilities.
3. The city shall coordinate the schedule for relocation of utility facilities and shall provide written notice of the time by which the utility operator must remove, relocate, change, alter or underground its facilities, which shall not be less than 30 days except as provided in subsection (D)(4) of this section. If a utility operator fails to remove, relocate, change, alter or underground any utility facility as required by the city, the utility operator shall pay all costs and expenses incurred by the city due to such failure, including but not limited to costs related to project delays, and the city may cause the utility facility to be removed, relocated, changed, altered or undergrounded at the utility operator’s sole cost and expense using qualified workers in accordance with applicable state and federal laws and regulations. The utility operator shall reimburse the city within 30 days of receipt of an invoice from the city.
4. In the event of a public health or safety emergency, as determined by the city, the city may require a utility operator to immediately remove, relocate, change or alter the position of any utility facility within a public right-of-way. The city retains the right and privilege to cut or remove, relocate, change or alter the position of any utility facility within a public right-of-way, without notice, as the city may determine to be necessary, appropriate or useful in response to a public health or safety emergency, as determined by the city. The city will use qualified personnel or contractors consistent with applicable state and federal safety laws and regulations to the extent reasonably practicable without impeding the city’s response to the emergency.
E. Removal of Unauthorized and Abandoned Facilities.
1. Within 30 days following written notice from the city, any grantee, utility operator, or other person that owns, operates or controls any unauthorized utility facility or related appurtenances within the public rights-of-way in the city shall, at its own cost and expense, remove such facilities or appurtenances from the public rights-of-way in the city. If a utility operator fails to remove any abandoned facilities or appurtenances, the utility operator shall pay all costs and expenses incurred by the city due to such failure, including but not limited to costs related to project delays, and the city may cause the utility facility or appurtenances to be removed at the utility operator’s sole cost and expense using qualified workers in accordance with applicable state and federal laws and regulations. The utility operator shall reimburse the city within 30 days of receipt of an invoice from the city.
2. A utility facility is unauthorized and subject to removal in the following circumstances:
a. One year after the expiration, revocation or termination of the grantee’s license.
b. Upon abandonment of a utility facility within the public rights-of-way in the city. All or any portion of a utility facility will be considered abandoned when it is deactivated, out of service, or not used for its authorized purpose for a period of 90 days or longer. A utility facility will not be considered abandoned if it is temporarily out of service during performance of repairs or if the facility is being replaced.
c. If the utility facility was constructed or installed without the appropriate prior authority at the time of installation.
d. If utility facility was constructed or installed at a location not permitted by the grantee’s license or franchise, or the permit issued pursuant to this chapter.
F. Relocation or Removal by City. The city shall not be liable to any utility operator for any damage to utility facilities, or for any consequential losses resulting directly or indirectly therefrom, by the city or its contractor in removing, relocating or altering the facilities pursuant to subsection D or E 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 solely and directly from the city’s negligence or willful misconduct.
G. Coordination of Construction Activities. All grantees are required to make a good faith effort to cooperate with the city in coordinating construction activities in the public rights-of-way.
1. By January 1st of each year, grantees shall provide the city with a schedule of their proposed construction activities in, around or that may affect the public rights-of-way.
2. If requested by the city, each grantee shall meet with the city annually or as determined by the city, to schedule and coordinate construction in the public rights-of-way. At that time, city will provide available information on plans for local, state, and/or federal construction projects.
3. All construction locations, activities and schedules shall be coordinated, as ordered by the public works director or designee, to minimize public inconvenience, disruption or damage. (Ord. 5-2024 § 2 (Exh. A); Ord. 4-1999 § 1)
12.35.045 Utility license.
A. Utility License. Every person that owns, operates or controls utility facilities as of the effective date of this chapter shall apply for a license from the city within 30 days of the later of:
1. The effective date of this chapter, or
2. The expiration of a valid franchise agreement granted by the city, unless a new franchise agreement is granted by the city pursuant to subsection K of this section.
B. Application. The license application shall be on a form provided by the city, and shall be accompanied by any additional documents required by the application or the city to identify the applicant, its legal status, including its authorization to do business in Oregon, a description of the utility facilities in the public rights-of-way or to be installed in the public rights-of-way, a description of type of utility service provided or to be provided by the applicant, if any, and other information reasonably necessary to determine the applicant’s ability to comply with the terms of this chapter.
C. Application Fee. The application shall be accompanied by a nonrefundable application fee or deposit set by resolution of the city council.
D. Determination by the City. The city shall issue a written determination granting or denying the application in whole or in part. If the application is denied, the written determination shall include the reasons for denial. The application shall be evaluated based upon the provisions of this chapter, the continuing capacity of the public rights-of-way to accommodate the applicant’s proposed utility facilities and the applicable federal, state and local laws, rules, regulations and policies.
E. Scope of Grant.
1. A license shall authorize the licensee, subject to the provisions of the city codes, including this chapter, and other applicable provisions of state or federal law, as amended from time to time, to construct, place, maintain, upgrade, repair and operate utility facilities in the public rights-of-way for the term of the license for the provision of the utility service(s) authorized in the license. In the event the licensee, or another utility provider using the licensee’s facilities, offers different utility service(s) than those authorized in the license, the licensee shall inform the city of such changes no later than 30 days after the provision of such services.
2. No license granted pursuant to this chapter shall convey any right, title or interest in the public rights-of-way, but shall be deemed a non-exclusive grant to use and occupy the public rights-of-way for the limited purposes and term provided in this chapter. The license is subject to all recorded deeds, easements, dedications, conditions, covenants, restrictions, encumbrances and claims of title of record that may affect the public rights-of-way.
3. No license granted pursuant to this chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the public rights-of-way for utility facilities, 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 public rights-of-way, for similar or different purposes.
4. Neither the issuance of the license nor any provisions contained therein shall constitute a waiver or bar to the exercise of any governmental right or power, including, without limitation, the police power or regulatory power of the city.
F. Term. Subject to the revocation and termination provisions in subsection J of this section, a utility license granted hereunder shall be in effect for a term of five years.
G. 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 fee requirements of this chapter for the portion of the facilities and extent of utility services delivered by the utility operator over those facilities.
2. A utility operator that provides or transmits more than one utility service to customers in the city is not required to obtain a separate license or franchise for each utility service, but is required to pay the rights-of-way access fees due for each utility service the utility operator provides.
H. Renewal Applications. A licensee that desires to renew its license under this code shall, not less than 30 days but no more than 180 days before expiration of the current license, submit an application with the city, including all information required in subsection B of this section and the application fee required in subsection C of this section. The city shall review the application as required by subsection D of this section and grant or deny the license within 90 days of submission of the application. If the city determines that the licensee is in violation of the terms of this chapter at the time it submits its application, the city may require that the licensee cure the violation or submit a detailed plan to cure the violation within a reasonable period of time, as determined by the city, before the city will consider the application and/or grant the license. If the city requires the licensee to cure or submit a plan to cure a violation, the city will grant or deny the license application within 90 days of confirming that the violation has been cured or of accepting the licensee’s plan to cure the violation.
I. Assignments or Transfers of System or License. Except as otherwise provided by applicable state and federal law, ownership or control of a majority interest in utility facilities or a license may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the grantee, by operation of law or otherwise, without the prior consent of the city.
1. Licensee and the proposed assignee or transferee of the license or facilities shall agree, in writing, to assume and abide by all of the provisions of the license.
2. No transfer shall be approved unless the assignee or transferee has the legal, technical, financial and other requisite qualifications to own, hold and operate the utility facilities pursuant to this code and otherwise meets the criteria for all license applicants set forth in subsection D of this section.
3. Unless expressly prohibited by applicable state or federal law, the licensee shall reimburse the city for all direct and indirect fees, costs and expenses reasonably incurred by the city in considering a request to transfer or assign a utility license.
4. Any transfer or assignment of a utility license or utility facilities without prior approval of the city under this code shall be void and is cause for revocation of the license.
J. Revocation or Termination of License.
1. The city may, subject to applicable notice and cure provisions of this subsection J, revoke a license to use or occupy the public rights-of-way in the city for one or more of the following reasons:
a. Construction or operation in the city or in the public rights-of-way in the city without applicable permit(s);
b. Construction or operation at an unauthorized location;
c. Failure to comply with subsection I of this section with respect to sale, transfer or assignment of utility facilities or a license;
d. Misrepresentation by or on behalf of a grantee in any application to the city;
e. Abandonment of utility facilities in the public rights-of-way;
f. Failure to relocate or remove facilities as required in this code;
g. Failure to pay taxes, compensation, fees or costs when and as due the city under this code;
h. Insolvency or bankruptcy of the grantee;
i. Violation of material provisions of this code; and/or
j. Violation of the material terms of the license.
2. Notice and Duty to Cure. In the event that the city believes that grounds exist for revocation of a license, the city shall give the grantee written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the grantee a reasonable period of time, not exceeding 30 days, to furnish evidence that:
a. Corrective action has been taken, or is being actively and expeditiously pursued, to remedy the violation or noncompliance;
b. Rebuts the alleged violation or noncompliance; and/or
c. It would be in the public interest to impose some penalty or sanction less than revocation.
3. Public Hearing. In the event that a grantee fails to provide evidence reasonably satisfactory to the city of its compliance with the license or with this code, the city staff shall refer the apparent violation or noncompliance to the city council. The city council shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter.
4. Standards for Revocation or Lesser Sanctions. If persuaded that the grantee has violated or failed to comply with material provisions of this code, or of a license, the city council shall determine whether to revoke the license, or to establish some lesser sanction and cure, considering the nature, circumstances, extent, and gravity of the violation as reflected by one or more of the following factors. Whether:
a. The misconduct was egregious;
b. Substantial harm resulted;
c. The violation was intentional;
d. There is a history of prior violations of the same or other requirements;
e. There is a history of overall compliance;
f. The violation was voluntarily disclosed, admitted or cured;
g. Grantee has failed to cure the violation after notice.
5. The provisions of this subsection J are in addition to, and in no way limit, the other penalties provided in this chapter and any other remedies the city may have at law or in equity.
K. Franchise Agreements. If the public interest warrants, as determined by the city in its sole discretion, the city and utility operator may enter into a written franchise agreement that includes terms that clarify, enhance, expand, waive or vary the provisions of this chapter, consistent with applicable state and federal law. The franchise may conflict with the terms of this chapter with the review and approval of city council. The franchisee shall be subject to the provisions of this chapter to the extent such provisions are not in conflict with the express provisions of any such franchise. In the event of a conflict between the express provisions of a franchise and this chapter, the franchise shall control. (Ord. 5-2024 § 2 (Exh. A); Ord. 4-1999 § 1)
12.35.050 License terms.
A. Maintenance. The utility operator shall be solely responsible for any repairs or maintenance required to keep its facilities in a clean, safe and code-compliant condition. The operator, at its sole cost and expense, shall repair any damage to its facilities within: (1) 30 days after the permittee discovers or receives notice (written or verbal) that such damage exists or (2) immediately if such repairs are necessary to preserve life or property. If, after notice from the city of the need for repair or maintenance as required in this subsection, a utility operator fails to repair and maintain utility facilities as requested by the city and by the date reasonably established by the city, the city may perform such repair or maintenance using qualified personnel or contractors consistent with applicable state and federal safety laws and regulations at the utility operator’s sole cost and expense. Within 30 days of receipt of a detailed invoice from the city, the utility operator shall reimburse the city the full invoiced amount.
B. 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, relocation, replacement, alteration or removal of any rights-of-way, public work, city utility, city improvement or city facility, licensee’s facilities shall be removed or relocated as provided in FMC 12.35.040.
C. Damage to Grantee’s Facilities. Unless directly and proximately caused by negligence or willful misconduct by the city, the city shall not be liable for any damage to or loss of any utility facility within the public rights-of-way in the city as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind in the public rights-of-way by or on behalf of the city, or for any consequential losses resulting directly or indirectly therefrom.
D. Duty to Provide Information. Within 30 days of a written request from the city, each grantee shall furnish the city with the following:
1. Information sufficient to demonstrate that grantee has complied with all requirements of the license and this code, including but not limited to payment of any applicable fees.
2. Any books, records, maps, and other documents maintained by the grantee with respect to its facilities within the public rights-of-way that the city may request.
E. Compensation for City Property. If any right is granted, by lease or other manner, to use and occupy city property for the installation of utility facilities, the compensation to be paid for such use shall be fixed by the city. No license issued pursuant to this chapter shall grant any right, license or authority to install utility facilities or otherwise use or occupy city property.
F. Cable Franchise. Utility operators providing cable service shall be subject to the separate cable franchise requirements of the city and other applicable authority, subject to applicable law.
G. Leased Capacity. A grantee shall have the right, without prior city approval, to offer or provide capacity or bandwidth to its customers; provided, that (1) the use of the licensee facilities does not require or involve any additional equipment owned or operated by the lessee to be installed in or on the facility (unless the lessee has obtained a ROW license or franchise from the city); and (2) the grantee provides the city with the name and business address of any lessee within 30 days of the effective date of the lease or other agreement to provide capacity or bandwidth.
H. Grantee Insurance.
1. Each grantee shall, as a condition of the license, secure and maintain the following liability insurance policies insuring both the grantee and the city, and its elected and appointed officers, officials, agents and employees as coinsured:
a. Comprehensive general liability insurance with limits of not less than:
i. Three million dollars for bodily injury or death to each person;
ii. Three million dollars for property damage resulting from any one accident; and
iii. Three million dollars for all other types of liability.
b. Automobile liability for owned, non-owned and hired vehicles with a limit of $1,000,000 for each person and $3,000,000 for each accident.
c. Worker’s compensation within statutory limits and employer’s liability insurance 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 $3,000,000.
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.
3. The liability insurance policies required by this section shall be maintained by the grantee throughout the term of the license, and such other period of time during which the grantee is operating without a license, or is engaged in the removal of its utility facilities.
4. Each such insurance policy shall contain the following endorsement:
It is hereby understood and agreed that this policy may not be canceled or materially altered, nor the intention not to renew be stated, until 30 days after receipt by the city, by registered mail, of a written notice addressed to the city of such intent to cancel or not to renew.
5. Prior to said cancellation or material alteration, the grantee shall obtain and furnish to the city evidence that the grantee continues to meet the requirements of this section.
6. As an alternative to the insurance requirements contained herein, a grantee may provide evidence of self-insurance subject to review and acceptance by the city.
7. A grantee 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.
I. General Indemnification. To the fullest extent permitted by law, each grantee shall defend, indemnify and hold the city and its officers, employees, agents and representatives harmless from and against any and all damages, losses, costs and expenses, including reasonable attorney’s fees and costs of suit or defense, arising out of, resulting from, or alleged to arise out of or result from, the negligent, careless or wrongful acts, or any acts, omissions, failures to act or misconduct, of the grantee or its affiliates, officers, employees, agents, contractors or subcontractors in the construction, operation, maintenance, repair or removal of its utility facilities, and/or in providing or offering utility services over the facilities, whether such acts or omissions are authorized, allowed or prohibited by this code or by a license granted pursuant to this code.
J. Performance Surety. Unless otherwise agreed to in writing by the city, before a license granted pursuant to this chapter is effective, and as necessary thereafter, the grantee shall provide a performance bond, in form and substance acceptable to the city, as security for the full and complete performance of a license granted under this chapter, including any costs, expenses, damages or loss the city pays or incurs because of any failure attributable to the grantee to comply with the codes, ordinances, rules, regulations or permits of the city. This obligation is in addition to the performance bond or surety required for construction of facilities. (Ord. 5-2024 § 2 (Exh. A); Ord. 4-1999 § 1)
12.35.055 Rights-of-way fees.
A. Every person that owns, operates or controls utility facilities in the city shall pay the rights-of-way use fee in the amount determined by resolution of the city council. The city council shall hold a public hearing prior to adopting or amending rights-of-way use fees.
B. Every person that utilizes utility facilities in the city to provide utility service(s), whether or not the person owns the utility facilities utilized to provide the service(s), shall pay the rights-of-way access fee in the amount determined by resolution of the city council for every utility service provided in the city. The city council shall hold a public hearing prior to adopting or amending rights-of-way access fees.
C. A person subject to the both the rights-of-way use fee in subsection A and the rights-of-way access fee in subsection B of this section shall deduct from the total amount due the lower of the fees due under subsections A and B of this section or, in the event the fees due under subsections A and B of this section are the same, deduct from the total amount due the full amount of one of the fees.
D. Fees required by this section shall be reduced by any franchise fees, but in no case shall be less than $0.00.
E. No acceptance of any payment shall be construed as accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim the city may have for further or additional sums payable.
F. Unless otherwise agreed to in writing by the city, the fees set forth under this section shall be paid quarterly, in arrears, within 45 days after the end of each calendar quarter. Each payment shall be accompanied by an accounting of the basis for the calculation of the amount payable on a remittance form provided by the city. The utility operator or utility provider shall provide to the city any additional reports or information the city deems necessary to ensure compliance with this section. Any person who fails to remit any fees when due under this section shall pay interest at the rate of one and one-half percent per month or fractions thereof, without proration for portions of a month, on the total amount due, from the date on which the payment first became delinquent, until received by the city.
G. The calculation of the fees required by this section shall be subject to all applicable limitations imposed by federal or state law in effect and as may be subsequently amended.
H. The city reserves the right to enact other fees and taxes applicable to person(s) subject to this chapter. Unless expressly permitted by the city in enacting such fee or tax, or required by applicable state or federal law, no person may deduct, offset, or otherwise reduce or avoid the obligation to pay any lawfully enacted fees or taxes based on the payment of the fees required under this chapter.
I. Within 30 days of a written request from the city, or as otherwise agreed to in writing by the city, every utility operator and utility provider shall furnish the city, at no cost to the city, information sufficient to demonstrate compliance with this section. If the city’s review or audit of the books, records and other documents or information of the utility operator or utility provider demonstrates that the utility operator or utility provider has underpaid the rights-of-way use fee or rights-of-way access fee by three percent or more, the utility operator or utility provider shall reimburse the city for the cost of the review or audit, in addition to any interest and penalties owed under this chapter. Any underpayment, including any interest, penalties or audit cost reimbursement, shall be paid within 30 days of the city’s notice to the utility operator or utility provider of such underpayment. The utility provider or utility operator shall maintain records subject to this subsection for not less than six years.
J. ROW usage fees not received by the city on or before the due date are subject to the following penalties:
1. Any person who has not remitted the correct fees when due as provided in this section shall pay the following penalty, as applicable, in addition to the amount due:
a. First occurrence during any one calendar year: 10 percent of the amount owed, or $25.00, whichever is greater.
b. Second occurrence during any one calendar year: 15 percent of the amount owed, or $50.00, whichever is greater.
c. Third occurrence during any one calendar year: 20 percent of the amount owed, or $75.00, whichever is greater.
d. Fourth occurrence during any one calendar year: 25 percent of the amount owed, or $100.00, whichever is greater.
2. If the city determines that the nonpayment of any remittance due under this section is due to fraud or intent to evade the provisions hereof, an additional penalty of 25 percent of the amount owed, or $500.00, whichever is greater, shall be added thereto in addition to other penalties stated in this section. (Ord. 5-2024 § 2 (Exh. A))
12.35.060 General provisions.
A. Governing Law. Any license granted under this chapter is subject to the provisions of the Constitution and laws of the United States, and the state of Oregon and the ordinances and Charter of the city.
B. Severability and Preemption. If any article, section, subsection, sentence, clause, phrase, term, provision, condition, covenant or portion of this code is for any reason 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 the code 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, sentence, clause, phrase, term, provision, condition, covenant and portion of this code shall be valid and enforceable to the fullest extent permitted by law. In the event that federal or state laws, rules or regulations preempt a provision or limit the enforceability of a provision of this code, then the provision shall be read to be preempted to the extent and for the time required by law. In the event such federal or state law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision hereof that had been preempted is no longer preempted, such provision shall thereupon return to full force and effect, and shall thereafter be binding, without the requirement of further action on the part of the city.
C. Penalties.
1. Any person found in violation of any provision of this chapter or the license shall be subject to a penalty of not less than $150.00 nor more than $2,500 per day for each day the violation has existed. Each violation of any provision of this chapter or the license shall be considered a separate violation for which separate penalties can be imposed. A finding of a violation of this chapter or a license and assessment of penalties shall not relieve the responsible party of the obligation to remedy the violation.
2. The public works director is authorized to find a person in violation of this chapter or a license and establish the amount of the penalties as provided in this subsection C. Prior to imposing any penalties, the public works director shall provide such person with notice of the violation and an opportunity to refute the assertion of a violation, provide evidence that the violation has been cured, or provide information relevant to the determination of the amount of any penalty as provided in this subsection C. The public works director shall provide written findings stating the basis for the finding of a violation and for the amount of the penalty imposed.
3. In establishing the amount of any penalty, the public works director shall consider any of the following factors that the public works director deems relevant:
a. The actions taken by the person to mitigate or correct the violation;
b. Whether the violation is repeated or continuous in nature;
c. The magnitude or gravity of the violation;
d. The cooperativeness of the person with the city;
e. The cost to the city of investigating, correcting, attempting to correct and/or prosecuting the violation; and
f. Any other factor deemed by the public works director to be relevant.
4. A person subject to penalties under the provisions of this subsection C may appeal the public works director’s decision to the city manager by filing a written notice of appeal with the city manager within 14 days after the receipt of the public works director’s written findings. A person subject to penalties under the provisions of this subsection C may seek judicial review of the city manager’s decision by way of writ of review as provided in ORS 34.010 through 34.100 and not otherwise.
5. The penalties imposed by this section are in addition to and not in lieu of any remedies available to the city.
D. Other Remedies. Nothing in this code shall be construed as limiting any judicial remedies that the city may have, at law or in equity, for enforcement of this code.
E. Captions. The captions to sections throughout this code are intended solely to facilitate reading and reference to the sections and provisions contained herein. Such captions shall not affect the meaning or interpretation of this code.
F. Compliance With Laws. Any grantee under this code shall comply with all federal and state laws, rules and regulations, including regulations of any administrative agency thereof, as well as all codes, ordinances, resolutions, rules and regulations of the city heretofore or hereafter adopted or established during the entire term any license granted under this code, which are relevant and relate to the construction, maintenance and operation of a utility system or the provision of utility services.
G. Application to Existing Ordinance and Agreements. To the extent that this code is not in conflict with and can be implemented with existing ordinances and franchise agreements, this code shall apply to all existing ordinances and franchise agreements for use of the public right-of-way for utility facilities. (Ord. 5-2024 § 2 (Exh. A); Ord. 4-1999 § 1. Formerly 12.35.055)