CHAPTER 115
Cable and Telecommunications Facilities Regulations
Section
Purpose and Definitions
115.001 Purpose
115.002 Jurisdiction and management of the public rights-of-way
115.003 [Reserved]
115.004 Regulatory fees and compensation not a tax
115.005 Definitions
Registration of Carriers
115.020 Purpose
115.021 Registration required
115.022 Registration fee
115.023 Exceptions to registration
Construction Standards
115.030 General
115.031 Construction codes
115.032 Construction permits
115.033 Permit applications
115.034 Traffic control plan
115.035 Construction permit fee
115.036 Diminished pavement life fee
115.037 Issuance of permit
115.038 Construction schedule
115.039 Locates
115.040 Compliance with permit
115.041 Noncomplying work
115.042 Completion of construction
115.043 As-built drawings
115.044 Restoration of public rights-of-way and city property
115.045 Landscape restoration
115.046 Construction and completion bond
Location of Facilities
115.060 Location of facilities
115.061 Interference with public rights-of-way
115.062 Relocation or removal of utility facilities
115.063 Removal of unauthorized utility facilities
Franchise
115.070 Franchise
115.071 Application
115.072 Application and review fee
115.073 Determination by the city
115.074 Rights granted
115.075 Term of grant
115.076 Franchise territory
115.077 Compensation to city
115.078 Amendment of grant
115.079 Renewal applications
115.080 Renewal determinations
115.081 Obligation to cure as a condition of renewal
115.082 Assignments or transfers of grant, notice to city
115.083 Transactions affecting control of grant
115.084 Revocation or termination of franchise
115.085 Notice and duty to cure
115.086 Public hearing
115.087 Standards for revocation or lesser sanctions
115.088 Other city costs
General Franchise Terms and Rates
115.100 Utility facilities
115.101 Damage to grantee’s facilities
115.102 Duty to provide information
115.103 [Reserved]
115.104 Compensation for city property
115.105 Payment of fees
115.107 [Reserved]
115.108 Grantee insurance
115.109 General indemnification
115.110 Performance surety
General Provisions
115.120 Governing law
115.121 Written agreement
115.122 Nonexclusive grant
115.123 Preemption
115.124 Other remedies
115.125 Compliance with laws
115.126 Consent
115.127 Franchise controlling
115.128 Confidentiality
115.999 Penalty
PURPOSE AND DEFINITIONS
115.001 PURPOSE.
The purpose of this chapter is to:
(A) Comply with the provisions of state and federal law as they apply to local governments, carriers and the services they offer;
(B) Establish clear local guidelines, standards and time frames for the exercise of local authority with respect to the regulation of carriers and telecommunications services and cable services;
(C) Promote competition on a competitively neutral basis in the provision of telecommunications services and cable services;
(D) Encourage the provision of advanced and competitive telecommunications services and cable services on the widest possible basis to businesses, institutions and residents of the city;
(E) Permit and manage reasonable access to the public rights-of-way on a competitively neutral basis and conserve the limited physical capacity of those public rights-of-way held in trust by the city;
(F) Assure that the city’s current and ongoing costs of granting and regulating private access to and the use of the public rights-of-way are fully compensated by the persons seeking such access and causing such costs to be incurred;
(G) Secure fair and reasonable compensation to the city and its residents for permitting private use of the public rights-of-way;
(H) Assure that all carriers providing telecommunications services and/or cable services within the city, or having utility facilities located in public rights-of-way, register and comply with the ordinances, rules and regulations of the city;
(I) Assure that the city can continue to fairly and responsibly protect the public health, safety and welfare of its citizens;
(J) Enable the city to discharge its public trust consistent with the rapidly evolving federal and state regulatory policies, industry competition and technological development.
(Ord. 2249, passed 9-11-17)
115.002 JURISDICTION AND MANAGEMENT OF THE PUBLIC RIGHTS-OF-WAY.
(A) The city has jurisdiction and exercises regulatory control 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 control over each public right-of-way whether the city has a fee, easement or other legal interest in such public right-of-way. The city has jurisdiction and regulatory control over each such public right-of-way regardless of whether its legal interest was obtained by grant, dedication, prescription, reservation, condemnation, annexation, foreclosure or other means.
(C) No person or entity may work in, occupy or otherwise use a public right-of-way for the provision of telecommunications services or cable services without the permission of the city. The city grants permission to work in and to use public rights-of-way by franchises and permits.
(D) The exercise of jurisdiction and regulatory control over 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 remove, or to require the removal of, any utility facilities located within the public rights-of-way, as the city determines to be necessary, appropriate or useful.
(Ord. 2249, passed 9-11-17)
115.003 [Reserved]
115.004 REGULATORY FEES AND COMPENSATION NOT A TAX.
(A) The fees and costs provided for in this chapter, and any compensation charged and paid for the public rights-of-way provided for in this chapter or in any franchise, are separate from, and in addition to, any and all federal, state, local and city taxes as may be levied, imposed or due from a carrier, its customers or subscribers, or on account of the lease, sale, delivery or transmission of telecommunications services or cable services.
(B) The city has determined that any fee imposed by this chapter is not subject to the property tax limitations of Chapter XI, Section 11(b) of the Oregon Constitution.
(Ord. 2249, passed 9-11-17)
115.005 DEFINITIONS.
For the purpose of this chapter the following terms, phrases, words and their derivations shall have the meaning defined in this chapter. 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 in this chapter 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.
ABOVEGROUND OR OVERHEAD FACILITIES. Utility facilities above the surface of the ground, including the underground supports and foundations for such facilities.
AFFILIATED INTEREST. The same meaning as ORS 759.010.
CABLE ACT. The Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521, et seq., as now and hereafter amended.
CABLE SERVICE. 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.
CARRIER. Any provider of telecommunications services or cable services within the city, or any person or entity that has or wishes to locate facilities within the public rights-of-way. Carrier includes telecommunications utilities and cable operators.
CITY. The City of Hermiston, Oregon.
CITY PROPERTY. All real property owned by the city other than public rights-of-way as those are defined in this chapter.
CONTROL or CONTROLLING INTEREST. Actual working control in whatever manner exercised.
FCC or FEDERAL COMMUNICATIONS COMMISSION. The federal administrative agency, or lawful successor, authorized to regulate and oversee carriers, services and providers on a national level.
FRANCHISE. An agreement between the city and a grantee that grants a privilege to use public right-of-way for a dedicated purpose and for specific compensation.
GRANTEE. The person to which a franchise is granted by the city.
GROSS REVENUE. Gross revenue means gross revenue derived from the provision of telecommunications services or cable services originating or terminating in the city. For the purposes of this definition, net uncollectibles from revenue included in gross revenues may be excluded from gross revenues.
LOCAL EXCHANGE SERVICE. Service provided within the boundaries of an exchange as the exchange appears on the exchange maps filed with and approved by the Oregon Public Utility Commission. LOCAL EXCHANGE SERVICE includes "shared telecommunications service," as defined in ORS Chapter 759.
OREGON PUBLIC UTILITIES COMMISSION or OPUC. The statutorily created state agency in the state of Oregon responsible for licensing, regulation and administration of certain communications providers as set forth in Oregon law.
PERSON. An individual, corporation, company, association, joint stock company or association, firm, partnership, or limited liability company.
PRIVATE TELECOMMUNICATIONS NETWORK. A system, including the construction, maintenance or operation of the system, for the provision of a service or any portion of a service, by a person for the exclusive use of that person and not for resale, directly or indirectly. PRIVATE TELECOMMUNICATIONS NETWORK includes services provided by the state of Oregon pursuant to ORS 190.240 and 283.140.
PUBLIC RIGHTS-OF-WAY. Include, but are not limited to, all streets, roads, highways, bridges, alleys, sidewalks, trails, paths, public easements and all other public ways or areas, including the subsurface under and air space over these areas, that are owned, operated, maintained and controlled by the city and located within the legal boundaries of the city. Notwithstanding the foregoing, PUBLIC RIGHTS-OF-WAY do not include trails, paths or sidewalks within parks or other areas of the city unless the trail, path or sidewalk has been dedicated as a right-of-way.
SERVICES. Telecommunications services and/or cable services.
TELECOMMUNICATIONS. The transmission between and among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.
TELECOMMUNICATIONS ACT. The Telecommunications Act of 1996 (47 U.S.C. §§ 151 et seq.) as adopted and as hereafter amended.
TELECOMMUNICATIONS SERVICE. The offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used. TELECOMMUNICATIONS SERVICES includes but is not limited to any service provided for the purpose of voice, video or data transmission, including, but not limited to, local exchange service, access service, extended area service, call origination, interconnection, switching, transport, or call termination and any other telecommunications identified and authorized by the FCC or the OPUC. For purposes of this chapter, telecommunications service shall expressly include the provision of internet service via cable modem or other similar means. TELECOMMUNICATIONS SERVICES does not include cable services.
TELECOMMUNICATIONS UTILITY. Has the same meaning as ORS 759.005(1)(a) and is limited to incumbent local exchange carriers (ILECs).
UNDERGROUND FACILITIES. Utility facilities located under the surface of the ground, excluding the underground foundations or supports for "overhead facilities."
USABLE SPACE. All the space on a pole, except the portion below ground level, the 20 feet of safety clearance space above ground level, and the safety clearance space between communications and power circuits.
UTILITY EASEMENT. Any easement within the public right-of-way designated on a subdivision plat or partition map as a utility easement, public utility easement or "P.U.E." or any easement granted to or owned by the city and acquired, established, dedicated or devoted for public utility purposes not inconsistent with the telecommunications facilities.
UTILITY FACILITIES. The plant, equipment and property including but not limited to the poles, pipes, mains, conduits, ducts, cable, wires, transformers, plant and equipment located under, on, or above the surface of the ground within the public right-of-way and used or to be used for the purpose of providing utility services, including cable service and telecommunications service.
(Ord. 2249, passed 9-11-17)
REGISTRATION OF CARRIERS
115.020 PURPOSE.
The purpose for registration is:
(A) To assure that all carriers who have facilities or provide services within the city comply with the ordinances, rules and regulations of the city.
(B) To provide the city with accurate and current information concerning the carriers who offer to provide telecommunications services and/or cable services within the city, or that own or operate utility facilities within the city.
(C) To assist the city in the enforcement of this title and the collection of any fees or charges that may be due the city.
(D) To assist the city in monitoring compliance with local, state and federal laws as they apply to grantees under this title.
(Ord. 2249, passed 9-11-17)
115.021 REGISTRATION REQUIRED.
Except as provided in § 115.023, all carriers having utility facilities within the public rights-of-way, and all carriers that offer or provide telecommunications services and/or cable services to customers within the city, shall register with the city. Registration shall be on forms to be provided by the City Manager or his designee which shall include the following:
(A) The identity and legal status of the registrant, including any affiliated interests.
(B) The name, address and telephone number of the officer, agent or employee responsible for the accuracy of the registration statement.
(C) A description of the registrant’s existing or proposed utility facilities within the public rights-of-way.
(D) A description of the telecommunications service and/or cable service that the registrant intends to offer or provide, or is currently offering or providing within the city.
(E) Information sufficient to determine whether the registrant is subject to public right-of-way franchising under this chapter.
(F) Information sufficient to determine whether the transmission, origination or receipt of the telecommunications services and/or cable services provided or to be provided by the registrant is subject to any fees, charges or taxes imposed by the city.
(G) Information sufficient to determine that the applicant has applied for and received any certificate of authority or permit required by the FCC or the OPUC to provide telecommunications services and/or cable services within the city.
(H) Information sufficient to determine that the applicant has applied for and received any construction permit, operating license or other approvals required by the FCC or the OPUC to have utility facilities within the city.
(I) Such other information as the city may reasonably require.
(Ord. 2249, passed 9-11-17)
115.022 REGISTRATION FEE.
Each application for registration as a carrier shall be accompanied by a nonrefundable registration fee, in an amount to be established by resolution by the City Council.
(Ord. 2249, passed 9-11-17)
115.023 EXCEPTIONS TO REGISTRATION.
The following carriers are exempt from registration:
(A) Telecommunications carriers that are owned and operated exclusively for its own use by the state or a political subdivision of this state and provide telecommunications services for governmental purposes only.
(B) A private telecommunications network; provided, that such network does not use or occupy any public rights-of-way.
(C) Carriers that have a valid franchise with the city for the use of public rights-of-way, or carriers that are actively and expeditiously pursuing such a franchise.
(Ord. 2249, passed 9-11-17)
CONSTRUCTION STANDARDS
115.030 GENERAL.
No person shall commence or continue with the construction, installation or operation of utility facilities within public rights-of-way except as provided in this chapter. To be clear, carriers having a valid franchise shall also comply with the construction requirements set forth in this chapter.
(Ord. 2249, passed 9-11-17)
115.031 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.
(Ord. 2249, passed 9-11-17)
115.032 CONSTRUCTION PERMITS.
(A) No person shall construct or install any utility facilities within a public right-of-way without first obtaining a construction permit and paying the construction permit fee established in § 115.035.
(B) No permit shall be issued for the construction or installation of facilities in the public rights-of-way unless the carrier has first applied for and received a franchise pursuant to §§ 115.070 through 115.088.
(C) No permit shall be necessary for the installation of a customer specific wire ("a drop") by a carrier where no excavation within the public right-of-way occurs.
(D) No permit shall be necessary for the installation of utility facilities within a utility easement that is not a public right-of-way.
(Ord. 2249, passed 9-11-17)
115.033 PERMIT APPLICATIONS.
Applications for permits to construct utility facilities within a public right-of-way shall be submitted upon forms to be provided by the city and shall be accompanied by drawings, plans, specifications and maps, in sufficient detail to demonstrate:
(A) That the utility facilities will be constructed in accordance with all applicable codes, rules and regulations and that the utility facilities will be constructed in accordance with the franchise.
(B) The location and route of all overhead facilities to be installed on, over or through the public rights-of-way. The location and route of all facilities to be located under the surface of the ground within the public rights-of-way. Existing facilities shall be differentiated on the plans from new construction.
(C) The location and route of all of underground facilities to be installed within the public rights-of-way.
(D) A typical cross section shall be provided showing new or existing utility facilities in relation to the public right-of-way.
(E) The location, dimension and types of all trees which will be substantially trimmed, removed or replaced as a result of the areas disturbed during construction and which are within or adjacent to the public rights-of-way along the route proposed by the applicant. The applicant shall submit a landscape plan, satisfactory to the city, for the replacement of such trees.
(F) The application shall also be accompanied by computer generated electronic maps of the utility facilities to be installed by the applicant. Such electronic maps shall be in a format specified by the city unless the applicant demonstrates that a different format was developed by the applicant and is proprietary and that maps cannot reasonably be created that conform to the city’s specifications.
(Ord. 2249, passed 9-11-17)
115.034 TRAFFIC CONTROL PLAN.
All work on, in, under, across or along any public rights-of-way shall be performed consistent with the Uniform Manual of Traffic Control Devices, to prevent injury or damage to persons or property and to minimize disruptions to efficient pedestrian and vehicular traffic.
(Ord. 2249, passed 9-11-17)
115.035 CONSTRUCTION PERMIT FEE.
Prior to issuance of a construction permit, the applicant shall pay a permit fee in an amount to be determined by resolution of the City Council. Nothing in this section shall require a telecommunications utility that is solely providing exchange access service to pay a permit fee.
(Ord. 2249, passed 9-11-17)
115.036 DIMINISHED PAVEMENT LIFE FEE.
The grantee, for any construction requiring pavement cuts, shall pay to the city an amount to reimburse the city for the pavement degradation and shortened pavement life that results from such cuts. Such fees shall be set by resolution of the City Council and shall be based upon the linear feet of the pavement cut, the age of the pavement when cut and whether the excavation is transverse or longitudinal. This section shall not apply to a telecommunication utility if such fee is determined to fall within the restrictions of ORS 221.515(3).
(Ord. 2249, passed 9-11-17)
115.037 ISSUANCE OF PERMIT.
If satisfied that the applications, plans and documents submitted comply with all requirements of this title, the City Manager or his designee shall issue a permit authorizing construction of the utility facilities, subject to such further conditions, restrictions or regulations affecting the time, place and manner of performing the work as they may deem necessary or appropriate.
(Ord. 2249, passed 9-11-17)
115.038 CONSTRUCTION SCHEDULE.
The permittee shall submit a written construction schedule to the City Manager or his designee before commencing any work in or about the public rights-of-way. At the city’s request, the construction schedule shall include a best estimate deadline for completion of construction. The schedule is subject to approval by the City Manager or his designee. The permittee shall further notify the City Manager or his designee not less than two working days in advance of commencing the project under the issued permit for excavation or work in the public rights-of-way. When advance notice is not possible because of an emergency, the permittee shall give notice within 24 hours of the excavation or work. When feasible, permittee shall contact all other occupants of the public right-of-way where construction is to occur. The purpose of the contact is to determine if joint projects are feasible in order to allow joint projects if desired to minimize duplication of work and unnecessary excavation. For those occupants expressing interest in a joint project, permittee shall give them reasonable notice of the particular dates on which open trenching exists. Upon mutual agreement, permittee shall make the trench available for installation of underground facilities. The payment for the cost of trenching and installation shall be as mutually agreed to by the parties thereto. Provided permittee demonstrates a good faith attempt to coordinate, the city shall not withhold issuance of any permit due to the inability of the permittee and other occupants to agree upon scheduling of the project and/or reimbursement of costs associated with the project.
(Ord. 2249, passed 9-11-17)
115.039 LOCATES.
The permittee is responsible for becoming familiar with, and understanding the provisions of ORS Chapter 757, governing the location of underground facilities (the "One-Call statutes"). Grantee shall comply with the terms and conditions set forth in the One-Call statutes. Every grantee under this chapter shall join and maintain membership in the Oregon Utility Notification Center and shall comply with the rules adopted by the center regulating the notification and marking of underground facilities.
(Ord. 2249, passed 9-11-17)
115.040 COMPLIANCE WITH PERMIT.
All construction practices and activities shall be in accordance with the permit and approved final plans and specifications for the utility facilities. The City Manager or his designee and its representatives shall be provided access to the work site and such information that is not confidential, sensitive or proprietary as they may require to ensure compliance with such requirements.
(Ord. 2249, passed 9-11-17)
115.041 NONCOMPLYING WORK.
Upon order of the City Manager or his designee, after reasonable notice and an opportunity to cure has been given, all work which does not comply with the permit, the approved plans and specifications for the work, the franchise agreement or the requirements of this chapter shall be removed at the sole expense of the permittee.
(Ord. 2249, passed 9-11-17)
115.042 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 authorized by a permit within public rights-of-way, including restoration, must be completed within 120 days of the date of issuance unless the City Manager or his designee agrees to a longer period.
(Ord. 2249, passed 9-11-17)
115.043 AS-BUILT DRAWINGS.
Within 60 days after completion of construction, the permittee shall furnish the city with two complete sets of plans in hard copy format and a set in a computerized format specified by the city, drawn to scale and certified to the city as accurately depicting the location of all utility facilities constructed pursuant to the permit.
(Ord. 2249, passed 9-11-17)
115.044 RESTORATION OF PUBLIC RIGHTS-OF-WAY AND CITY PROPERTY.
(A) 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 expense, promptly remove any obstructions and restore such public rights-of-way or city property to as near the original condition as reasonably possible, unless otherwise directed by the city.
(B) 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 city property. Such temporary restoration shall be at the permittee’s sole expense and the permittee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.
(C) If the permittee fails to restore public rights-of-way or city property to as good a condition as existed before the work was undertaken, the city shall cause such restoration to be made at the expense of the permittee.
(D) A permittee or other person acting in its behalf shall use suitable barricades, flags, flagmen, 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 city property.
(Ord. 2249, passed 9-11-17)
115.045 LANDSCAPE RESTORATION.
(A) All trees, landscaping and grounds removed, damaged or disturbed as a result of the construction, installation, maintenance, repair or replacement of utility facilities, shall be replaced or restored as nearly as may be practicable, to the condition existing prior to performance of work.
(B) All restoration work within the public rights-of-way or on city property shall be done in accordance with landscape plans approved by the city.
(C) Any tree, shrub or other landscaping that shows substantial damage within 18 months of completion of construction, attributable to construction, must be replaced at the sole expense of the grantee.
(Ord. 2249, passed 9-11-17)
115.046 CONSTRUCTION AND COMPLETION BOND.
(A) Unless otherwise provided in a franchise, or unless the city otherwise specifically approves an alternative security to assure performance, a performance bond written by a corporate surety acceptable to the city, and authorized to transact business in Oregon, equal to at least 100% of the estimated cost of constructing the utility facilities within the public rights-of-way shall be deposited with the city before construction is commenced.
(B) The performance bond 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 or city property affected by the construction.
(C) The performance bond shall guarantee, to the satisfaction of the city:
(1) Timely completion of construction;
(2) Construction in compliance with applicable plans, permits, technical codes and standards;
(3) Proper location of the utility facilities as specified by the city;
(4) Restoration of the public rights-of-way or city property affected by the construction;
(5) The submission of "as-built" drawings after completion of the work as required by this title; and
(6) Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work.
(Ord. 2249, passed 9-11-17)
LOCATION OF FACILITIES
115.060 LOCATION OF FACILITIES.
(A) Grantee shall locate its utility facilities in accordance with the city’s generally applicable policies in effect as of the date of adoption of this chapter. No person with existing attachments to utility poles shall be required by this chapter to install new or existing utility facilities underground except as provided in the following subsection.
(B) At such time as the city may adopt generally applicable policies and requirements permitting or requiring the underground installation of utility facilities, all persons subject to this chapter shall fully comply with such policies and requirements provided they are imposed on all carriers in a competitively neutral and nondiscriminatory manner.
(Ord. 2249, passed 9-11-17)
115.061 INTERFERENCE WITH PUBLIC RIGHTS-OF WAY.
No grantee may locate or maintain 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 such utility facilities that do not comply with this provision shall be moved by the grantee, temporarily or permanently, as determined by the city at the sole expense of the grantee. All use of public rights-of-way shall be consistent with city codes, ordinances and regulations.
(Ord. 2249, passed 9-11-17)
115.062 RELOCATION OR REMOVAL OF UTILITY FACILITIES.
(A) Within 60 days following written notice from the city, a grantee shall, at no expense to the city, temporarily or permanently remove, relocate, change or alter the position of any utility facilities within the public rights-of-way whenever the city shall have determined that such removal, relocation, change or alteration is reasonably necessary for:
(1) The construction, repair, maintenance or installation of any city or other public improvement in or upon the public rights-of-way.
(2) The operations of the city or other governmental entity in or upon the public rights-of-way.
(B) Notwithstanding the 60-day limit, a grantee shall, at no expense to the city, relocate overhead facilities within 30 days following written notice from the City Manager or his designee that a joint pole owner has space on poles for such purpose. The 30- or 60-day limit may be waived by consent of the parties. Waivers shall not be unreasonably withheld.
(Ord. 2249, passed 9-11-17)
115.063 REMOVAL OF UNAUTHORIZED UTILITY FACILITIES.
(A) Within 30 days following written notice from the city, any person that owns, controls or maintains any unauthorized utility facility or related appurtenances within the public rights-of-way shall, at its own expense, remove such utility facilities or appurtenances from the public rights-of-way.
(B) A utility facility is unauthorized and subject to removal in the following circumstances:
(1) One year after the expiration or termination of a franchise.
(2) Upon abandonment of a utility facility within the public rights-of-way. A utility facility will be considered abandoned when it is deactivated, out of service, or not used for its intended and authorized purpose for a period of 90 days or longer. A utility facility will not be considered abandoned if it: (i) is temporarily out of service during performance of repairs; (ii) is excess capacity of a current grantee who is not in default; (iii) is being replaced; or (iv) has been disconnected because the building or property being served is vacant.
(3) If the utility facility was constructed or installed without the prior grant of a franchise.
(4) If the utility facility was constructed or installed without the prior issuance of a required construction permit.
(5) If the utility facility was constructed or installed at a location not permitted by franchise.
(6) If the utility facility interferes with or adversely affects existing utility facilities.
(C) The 30-day limit may be waived or extended only by written consent of the city; provided, however, that such waivers or extensions shall not be unreasonably withheld.
(D) If all the utility facilities and appurtenances are not removed within one year after the termination or expiration of a franchise or such further time as may be granted by the city, they shall be forfeited to the city. The city may notify the person described above that it waives forfeiture and may compel removal from the public right-of-way and restoration of the right-of-way and may maintain court suit to require such removal and restoration by the person or the payment of the cost thereof by the person.
(Ord. 2249, passed 9-11-17)
FRANCHISE
115.070 FRANCHISE.
A franchise shall be required of any carrier who desires to occupy public rights-of-way. The franchise must specify the service or services to be provided, including whether the carrier will provide telecommunications services and/or cable services. The carrier shall compensate the city for use of the public rights-of-way in accordance with § 115.077, Compensation to city.
(Ord. 2249, passed 9-11-17)
115.071 APPLICATION.
Any person that desires a franchise pursuant to this chapter shall file an application with the City Manager or his designee, which shall include the following information:
(A) The identity of the applicant, including all affiliated interests of the applicant doing business in the state.
(B) A description of the telecommunications services and/or cable services that are or will be offered or provided by the applicant over its utility facilities within the city.
(C) A description of the transmission medium that is being used or will be used by the applicant to offer or provide such telecommunications services or cable services within the city.
(D) Preliminary engineering plans, specifications and a network map of the utility facilities to be located within the public rights-of-way, including copies in hard copy and computerized format specified by the city and all in sufficient detail to identify:
(1) The location and route requested for applicant’s proposed utility facilities;
(2) The location of all overhead facilities and underground facilities in the public rights-of-way to be installed by applicant;
(3) The location(s), if any, for interconnection with the utility facilities of other carriers;
(4) The specific trees, structures, improvements, utility facilities and obstructions, if any, the applicant proposes to temporarily or permanently remove or relocate.
(E) If the applicant is proposing to install overhead facilities, to the extent that the applicant will be using utility poles, evidence from the pole owner that usable space is available for locating the applicant’s overhead facilities on existing poles along the proposed route; and if usable space is not available in some or all service areas, an indication of these locations and a "make ready" schedule for completion.
(F) If the applicant is proposing an underground installation in existing ducts or conduits within the public rights-of-way, provide information in sufficient detail to identify:
(1) The excess capacity currently available in such ducts or conduits before installation of the applicant’s underground facilities;
(2) The excess capacity, if any, that will exist in such ducts or conduits after installation of the applicant’s underground facilities.
(G) If the applicant is proposing an underground installation within new ducts or conduits to be constructed within the public rights-of-way:
(1) The location proposed for the new ducts or conduits;
(2) The excess capacity that will exist in such ducts or conduits after the installation of applicant’s underground facilities.
(H) A preliminary construction schedule and completion date.
(I) Financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant’s financial ability to construct, operate, maintain, relocate and remove the utility facilities.
(J) Information in sufficient detail to establish the applicant’s technical qualifications, experience and expertise regarding the utility facilities and services described in the application.
(K) Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the utility facilities and to offer or provide the services proposed.
(L) An accurate map showing the location of any existing utility facilities in the city that the applicant intends to use or lease.
(M) A description of the services or facilities that the applicant will offer or make available to the city and other public, educational and governmental institutions.
(N) A description of the applicant’s access and line extension policies.
(O) The area or areas of the city the applicant desires to serve and a schedule for build-out to the entire franchise area.
(Ord. 2249, passed 9-11-17)
115.072 APPLICATION AND REVIEW FEE.
(A) Any applicant for a franchise pursuant to this chapter shall pay an application and review fee in an amount to be determined by resolution of the City Council. This section shall not apply to a telecommunication utility which provides only local exchange access.
(B) The application and review fee shall be deposited with the city as part of the application filed pursuant to § 115.071.
(Ord. 2249, passed 9-11-17)
115.073 DETERMINATION BY THE CITY.
(A) The city shall issue a written determination granting or denying the franchise application in whole or in part, applying the standards listed below.
(B) If the application is denied, the written determination shall include the reasons for denial. The standards to be applied by city are:
(1) The financial and technical ability of the applicant.
(2) The capacity of the public rights-of-way to accommodate the applicant’s proposed utility facilities.
(3) The capacity of the public rights-of-way to accommodate additional utility facilities if the franchise is granted.
(4) The damage or disruption, if any, of public or private property, improvements, service, travel or landscaping if the franchise is granted.
(5) The public interest in minimizing the cost and disruption of construction within the public rights-of-way.
(6) The availability of alternate routes or locations for the proposed utility facilities.
(7) Applicable federal and state laws, regulations and policies.
(Ord. 2249, passed 9-11-17)
115.074 RIGHTS GRANTED.
No franchise granted under this chapter shall convey any right, title or interest in the public rights-of-way, but shall be deemed a grant to use and occupy the public rights-of-way for the limited purposes and term, and upon the conditions stated in the franchise.
(Ord. 2249, passed 9-11-17)
115.075 TERM OF GRANT.
Unless otherwise specified therein, a franchise granted under this title shall be in effect for a term of five years.
(Ord. 2249, passed 9-11-17)
115.076 FRANCHISE TERRITORY.
Unless otherwise specified in a franchise agreement, a franchise granted under this chapter shall be limited to the specific geographic area of the city to be served by the grantee, and the public rights-of-way necessary to serve such areas.
(Ord. 2249, passed 9-11-17)
115.077 COMPENSATION TO CITY.
(A) As fair and reasonable compensation for the use of public rights-of-way, a carrier providing cable service shall pay the city a cable franchise fee in an amount equal to the lesser of five percent gross revenues on cable services or such amount as may be mutually agreed by the carrier and the city in a franchise.
(B) As fair and reasonable compensation for the use of public rights-of-way, a carrier providing telecommunications services shall pay the city a license fee in an amount equal to the lesser of seven percent of gross revenues on telecommunications services or such amount as may be mutually agreed by the carrier and the city in writing.
(C) For avoidance of doubt, any carrier using the same utility facilities located in public rights-of-way to provide both telecommunications services and cable services shall be required to compensate the city for the use of the public rights-of-way by paying both the license fee applicable to telecommunications services as set forth in subsection (B) of this section and the cable franchise fee applicable to cable services as set forth in subsection (A) of this section.
(D) Any payment required under this section shall be made on a quarterly basis within 45 days of the close of each calendar quarter or by such dates as otherwise agreed by the carrier and the city in writing.
(Ord. 2249, passed 9-11-17; Am. Ord. 2258, passed 6-11-18)
115.078 AMENDMENT OF GRANT.
(A) Conditions for amending a franchise:
(1) A new application and grant shall be required of any carrier that desires to extend or locate its utility facilities in public rights-of-way that are not included in a franchise previously granted under this chapter.
(2) If ordered by the city to locate or relocate its utility facilities in public rights-of-way not included in a previously granted franchise, the city shall grant an amendment without further application.
(B) A new application and grant shall be required of any carrier that desires to provide a service which was not included in a franchise previously granted under this chapter.
(Ord. 2249, passed 9-11-17)
115.079 RENEWAL APPLICATIONS.
A grantee that desires to renew its franchise under this chapter shall, not less than 90 days before expiration of the current agreement, file an application with the city for renewal of its franchise, which shall include the following information:
(A) The information required pursuant to § 115.071 that has not previously been provided to the city in connection with the grantee’s existing franchise.
(B) Any information required pursuant to the franchise between the city and the grantee.
(Ord. 2249, passed 9-11-17)
115.080 RENEWAL DETERMINATIONS.
(A) Within 90 days after receiving a complete application under § 115.071, the city shall issue a written determination granting or denying the renewal application in whole or in part, applying the following standards:
(1) The financial and technical ability of the applicant.
(2) The continuing capacity of the public rights-of-way to accommodate the applicant’s existing utility facilities.
(3) The applicant’s compliance with the requirements of this chapter and the franchise.
(4) Applicable federal, state and local laws, rules and policies.
(B) If the renewal application is denied, the written determination shall include the reasons for nonrenewal.
(Ord. 2249, passed 9-11-17)
115.081 OBLIGATION TO CURE AS A CONDITION OF RENEWAL.
No franchise shall be renewed until any ongoing violations or defaults in the grantee’s performance of the franchise, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the city.
(Ord. 2249, passed 9-11-17)
115.082 ASSIGNMENTS OR TRANSFERS OF GRANT, NOTICE TO CITY.
Unless otherwise provided in a franchise, grantee may not transfer, assign or dispose of its rights and obligations under a franchise without the prior consent of the city, which consent shall not be unreasonably withheld or delayed, and then only on such reasonable conditions as may be prescribed in such consent.
(A) Grantee and the proposed assignee or transferee of the franchise shall agree, in writing, to assume and abide by all of the provisions of the franchise.
(B) 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 chapter.
(C) Unless otherwise provided in a franchise, the grantee 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 franchise.
(D) Any transfer or assignment of a franchise or integral part of a franchise without prior approval of the city under this section or pursuant to a franchise shall be void and is cause for revocation of the grant.
(Ord. 2249, passed 9-11-17)
115.083 TRANSACTIONS AFFECTING CONTROL OF GRANT.
Any transactions which singularly or collectively result in a change of ten percent or more of the ownership or working control of the grantee, of the ownership or working control of a franchise, or of the ownership or working control of affiliated interests having ownership or working control of the grantee’s utility facilities or substantial parts of such capacity or bandwidth, shall be considered an assignment or transfer requiring city approval pursuant to § 115.082. Transactions between affiliated interests are not exempt from city approval.
(Ord. 2249, passed 9-11-17)
115.084 REVOCATION OR TERMINATION OF FRANCHISE.
A franchise to use or occupy public rights-of-way may be revoked for the following reasons:
(A) Construction or operation in the city or in the public rights-of-way without a franchise grant of authorization.
(B) Construction or operation at an unauthorized location.
(C) Unauthorized substantial transfer of control of the grantee.
(D) Failure to comply with sections of this chapter regarding sale, transfer or assignment of a franchise or utility facilities.
(E) Unauthorized sale, assignment or transfer of the grantee’s franchise assets, or a substantial interest in the franchise.
(F) Misrepresentation by or on behalf of a grantee in any application to the city.
(G) Abandonment of utility facilities in the public rights-of-way.
(H) Failure to relocate or remove facilities as required in this title.
(I) Willful or continued failure to pay taxes, compensation, fees or costs when and as due the city unless subject to a bona fide dispute.
(J) Insolvency or bankruptcy of the grantee.
(K) Violation of a material provision of this chapter.
(L) Violation of a material term of a franchise.
(Ord. 2249, passed 9-11-17)
115.085 NOTICE AND DUTY TO CURE.
Pursuant to § 115.084, in the event that the city believes that grounds exist for revocation of a franchise, 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:
(A) That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance.
(B) That rebuts the alleged violation or noncompliance.
(C) That it would be in the public interest to impose some penalty or sanction less than revocation.
(Ord. 2249, passed 9-11-17)
115.086 PUBLIC HEARING.
In the event that a grantee fails to provide evidence reasonably satisfactory to the city as provided in § 115.085, the City Manager or his designee shall refer the apparent violation or non-compliance to the City Council. The City Council shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter.
(Ord. 2249, passed 9-11-17)
115.087 STANDARDS FOR REVOCATION OR LESSER SANCTIONS.
If persuaded that the grantee has violated or failed to comply with material provisions of this chapter, or of a franchise, the City Council shall determine whether to revoke the franchise, 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:
(A) Whether the misconduct was egregious.
(B) Whether substantial harm resulted.
(C) Whether the violation was intentional.
(D) Whether there is a history of prior violations of the same or other requirements.
(E) Whether there is a history of overall compliance.
(F) Whether the violation was voluntarily disclosed, admitted or cured.
(Ord. 2249, passed 9-11-17)
115.088 OTHER CITY COSTS.
All grantees shall, within 30 days after written demand, reimburse the city for all direct and indirect costs and expenses incurred by the city in connection with any modification, amendment, renewal or transfer of the franchise.
(Ord. 2249, passed 9-11-17)
GENERAL FRANCHISE TERMS AND RATES
115.100 UTILITY FACILITIES.
Each grantee shall provide the city with an accurate map or maps certifying the location of all utility facilities within the public rights-of-way. Each grantee shall provide updated maps annually including copies in paper and a computerized format specified by the city.
(Ord. 2249, passed 9-11-17)
115.101 DAMAGE TO GRANTEE’S FACILITIES.
Unless directly and proximately caused by willful, intentional or malicious acts 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 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 from such work.
(Ord. 2249, passed 9-11-17)
115.102 DUTY TO PROVIDE INFORMATION.
Within ten days of a written request from the city, each grantee shall furnish the city with information sufficient to demonstrate:
(A) That the grantee has complied with all requirements of this chapter.
(B) All books, records, maps and other documents maintained by the grantee with respect to its utility facilities within the public rights-of-way shall be made available for inspection by the city at reasonable times and intervals.
(Ord. 2249, passed 9-11-17)
115.103 [RESERVED].
115.104 COMPENSATION FOR CITY PROPERTY.
If any right is granted, by lease, franchise or other manner, to use or occupy city property for the installation of facilities, the compensation to be paid for such right and use shall be fixed by the city and is not subject to the limits contained in this chapter.
(Ord. 2249, passed 9-11-17)
115.105 PAYMENT OF FEES.
Any grantee who fails to remit any fee imposed by this chapter within 30 days of the date it is due shall pay interest at the rate of one percent per month or fraction thereof on the amount of the fee from the date on which the remittance first became due until paid.
(Ord. 2249, passed 9-11-17)
115.107 [RESERVED].
115.108 GRANTEE INSURANCE.
(A) Unless otherwise provided in a franchise, each grantee shall, as a condition of the grant, 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:
(1) Comprehensive general liability insurance with limits not less than $1,000,000 for bodily injury or death to each person; $1,000,000 for property damage resulting from any one accident; and $1,000,000 for all other types of liability.
(2) Automobile liability for owned, non-owned and hired vehicles with a limit of $1,000,000 for each person and $1,000,000 for each accident.
(3) Workers’ compensation within statutory limits and employer’s liability insurance with limits of not less than $1,000,000.
(4) Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than $1,000,000.
(B) The liability insurance policies required by this section shall be maintained by the grantee throughout the term of the franchise, and such other periods of time during which the grantee is operating without a franchise, or is engaged in the removal of its utility facilities. Each such insurance policy shall contain the following endorsement:
"This policy may not be canceled nor the intention not to renew be stated until 90 days after receipt by the City, by registered mail, of a written notice addressed to the City Manager or his designee of such intent to cancel or not to renew."
(C) Within 60 days after receipt by the city of such notice, and in no event later than 30 days prior to the cancellation, the grantee shall obtain and furnish to the city evidence that the grantee meets requirements of this section.
(D) The insurance policy requirements of this section may be met by a program of self-insurance acceptable to the city.
(Ord. 2249, passed 9-11-17)
115.109 GENERAL INDEMNIFICATION.
Each franchise shall include, to the extent permitted by law, grantee’s express undertaking to defend, indemnify and hold the city and its officers, employees, agents and representatives harmless from and against any and all damages, losses 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, 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 in providing or offering services over the utility facilities, whether such acts or omissions are authorized, allowed or prohibited by this chapter or by a franchise made or entered into pursuant to this chapter.
(Ord. 2249, passed 9-11-17)
115.110 PERFORMANCE SURETY.
Unless the city otherwise specifically approves an alternative security to assure performance, before a franchise granted pursuant to this chapter is effective, the grantee shall provide and maintain a performance bond, in form and substance acceptable to the city, as security for the full and complete performance of 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.
(Ord. 2249, passed 9-11-17)
GENERAL PROVISIONS
115.120 GOVERNING LAW.
Any franchise granted under this chapter is subject to the provisions of the Constitution and laws of the United States, the state of Oregon, and the ordinances and Charter of the city.
(Ord. 2249, passed 9-11-17)
115.121 WRITTEN AGREEMENT.
No franchise shall be granted unless the agreement is in writing.
(Ord. 2249, passed 9-11-17)
115.122 NONEXCLUSIVE GRANT.
No franchise granted under this chapter shall confer any exclusive right, privilege or franchise to occupy or use the public rights-of-way for delivery of services or any other purposes.
(Ord. 2249, passed 9-11-17)
115.123 PREEMPTION.
In the event that federal or state laws, rules or regulations preempt a provision or limit the enforceability of a provision of this chapter, then the provision shall be read to be preempted to the extent and/or 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 that had been preempted is no longer preempted, such provision shall return to full force and effect, and shall be binding, without the requirement of further action on the part of the city.
(Ord. 2249, passed 9-11-17)
115.124 OTHER REMEDIES.
Nothing in this chapter shall be construed as limiting any judicial remedies that the city may have, at law or in equity, for enforcement of this chapter.
(Ord. 2249, passed 9-11-17)
115.125 COMPLIANCE WITH LAWS.
Any grantee under this chapter shall comply with all federal and state laws and regulations, including regulations of any administrative agency, as well as all ordinances, resolutions, rules and regulations of the city now in effect or adopted in the future or established during the entire term of any franchise granted under this chapter, which are relevant and relate to the construction, maintenance and operation of utility facilities.
(Ord. 2249, passed 9-11-17)
115.126 CONSENT.
Wherever the consent of either the city or the grantee is specifically required, such consent will not be unreasonably withheld.
(Ord. 2249, passed 9-11-17)
115.127 FRANCHISE CONTROLLING.
In the event of a conflict between any express term or provision contained in a franchise and the terms and conditions set forth in this chapter, the franchise shall govern.
(Ord. 2249, passed 9-11-17)
115.128 CONFIDENTIALITY.
The city agrees to use its best efforts to preserve the confidentiality of information designated by the grantee as a trade secret, to the extent permitted by the Oregon Public Records Law.
(Ord. 2249, passed 9-11-17)
115.999 PENALTY.
Any person found guilty of violating, disobeying, omitting, neglecting or refusing to comply with any of the provisions of this chapter shall have committed a Class A violation. A separate and distinct offense shall be deemed committed each day on which a violation occurs.
(Ord. 2249, passed 9-11-17)