Chapter 13.40
UTILITY LICENSE CODE
Sections:
13.40.008 Regulatory fees and compensation not a tax.
13.40.012 Amendment, renewal, transfer of license.
13.40.014 Revocation or termination of license.
13.40.016 General license terms.
13.40.018 License fee – Privilege fee.
13.40.020 Location of utility facilities.
13.40.022 Coordination of construction activities.
13.40.026 Severability and preemption.
13.40.032 Compliance with laws.
13.40.038 Regulations for wireless communication facilities in the public rights-of-way.
13.40.000 Short title.
This section to MMC 13.40.038 shall be known and may be cited as the “Utility License Code.” (Ord. 1377 § 1, December 5, 2017.)
13.40.002 Purpose.
The purpose and intent of MMC 13.40.000 to 13.40.038 are to:
(1) Assure that the City’s current and ongoing costs of granting and regulating access to, and the use of, the public rights-of-way are fully compensated by persons seeking such access and causing such costs;
(2) Secure fair and reasonable compensation to the City and its residents for: the installation and use of utility facilities in the public rights-of-way;
(3) Assure that all utilities providing facilities or services within the City, or passing through the City, comply with the ordinances, rules and regulations of the City;
(4) Assure that the City can continue to fairly and responsibly protect the public health, safety and welfare of its citizens, including but not limited to the public inconvenience and disruption stemming from the installation, maintenance and operation of utility facilities in the public rights-of way; and the structural and aesthetic impacts resulting from the installation of such facilities;
(5) Comply with the provisions of the Communication Act of 1934, as amended, as they apply to local governments, communications service providers and the services they offer; promote competition on a competitively neutral and nondiscriminatory basis in the provision of communications services; and encourage the provision of advanced and competitive communications services on the widest possible basis to business, institutions and residents of the City;
(6) Permit and manage reasonable access to the public rights-of-way of the City and conserve the limited physical capacity of those public rights-of-way held in trust by the City, and provide access to the public rights-of-way on a competitively neutral and nondiscriminatory basis; and
(7) Enable the City to discharge its public trust consistent with the rapidly evolving Federal and State regulatory policies, industry competition and technological development. (Ord. 1377 § 1, December 5, 2017.)
13.40.004 Definitions.
Words not defined in this section or elsewhere within MMC 13.40.000 to 13.40.038 shall be given the meaning set forth in the Communications Act of 1934, the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996, all as amended. If not defined there, the words shall be given their common and ordinary meaning. For the purpose of MMC 13.40.000 to 13.40.038, the following terms, phrases, words and their derivations shall have the meaning given herein:
“Cable Act” means the Cable Communications Policy Act of 1984, 47 USC Section 521 et seq., as now and hereafter amended.
“Cable service” means, to be consistent with Federal law, 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.
“City” means the City of Monmouth, and individuals authorized to act on the City’s behalf.
“City property” means all real or personal property or fixtures owned or controlled by the City, including the public rights-of-way as those are defined herein, and all property held in a proprietary capacity by the City. City property includes, but is not limited to: City streets, roads, alleys and bridges in the public rights-of-way; parks, open spaces, trails, paths, and access ways; parking lots, public buildings, and access easements, driveways, or access ways located upon property held in a proprietary capacity. City-owned traffic signals, traffic signal poles, street lights and street light poles shall be considered City property.
“Communications service” means any service providing the electromagnetic, electronic, or optical 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, whether or not the transmission is by the owner of the utility facility or on behalf of other communications service utilities, and whether or not the transmission medium is wireline. Communications service includes all forms of voice, video, data or information transport, including but not limited to telecommunications services, cable services, information services, broadband services and internet access. Communications service does not include direct broadcast satellite service, radio and television broadcast service, or communications of a customer which take place exclusively on the customer side of on-premises equipment.
“Communications service provider” means any person that provides communications services and which directly or indirectly owns, controls, operates, uses, or manages utility facilities in the public rights-of-way that are used to provide communications service within the City.
Communications service provider includes a telecommunications utility.
“Conduit” means any structure, or section thereof, containing one or more ducts, conduits, manholes, handholes, bolts, or similar utility facilities used for any utility service, owned or controlled, in whole or in part, by one or more utilities.
“Construction” means any activity in the public rights-of-way resulting in physical change thereto, including excavation or placement of structures, but excluding routine maintenance or repair of existing facilities.
“Control” or “controlling interest” means actual working control in whatever manner exercised.
“Days” means calendar days unless otherwise specified.
“Duct” means a single enclosed raceway for conductors, wire or cable.
“FCC” or “Federal Communications Commission” means the Federal administrative agency, or lawful successor, authorized to regulate and oversee communications services and providers on a national level.
“License” means the grant, on a nonexclusive basis, of permission for a person to use public rights-of-way within the City for a specified and dedicated purpose as provided by MMC 13.40.000 to 13.40.038.
“Manager” means the City Manager or the City Manager’s designee.
“Overhead or aboveground facilities” means utility poles, wires, cable and other utility facilities above the surface of the ground, including the underground supports and foundations for such facilities.
“Private communications network” means 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 communications network” includes services provided by the State of Oregon pursuant to ORS 190.240 and 283.140.
“Public rights-of-way” includes, but is not limited to, streets, roads, highways, bridges, alleys, sidewalks, and all other public ways, including the subsurface under and air space over these areas under the jurisdiction of the City. A public right-of-way includes a public utility easement but does not include City property.
“Public utility easement” means an easement conveyed, granted or dedicated to the City or the public and acquired, established, dedicated or devoted to utility purposes, whether designated as a public easement, utility easement, general utility easement, public utility easement or similar term. Easements acquired for use by the City’s public stormwater, wastewater, or water systems shall not be considered public utility easements or public rights-of-way.
“Telecommunications utility” shall have the same meaning as ORS 759.005(9).
“Underground facilities” means utility facilities located under the surface of the ground, excluding the underground foundations or supports for “overhead facilities.”
“Utility” means any person, or its lessees or trustees of record, that owns, operates, manages or controls all or a part of any utility facility in the City for the production, transmission, delivery, conveyance, distribution or function of gas, heat, steam, light, wastewater, stormwater, water, power, electricity, or communications service. Includes any affiliate of a utility, or any other entity controlled or managed by a utility or its affiliate, that uses utility facilities in the City to provide any utility service; utilities owned or operated by a municipality or special district; and electricity service supplier as defined by ORS 757.600; and a private communications network.
“Utility facilities” means the plant, equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, cable, wires, wireless communication devices or other plant, equipment and appurtenance located under, on, or above the surface of the ground within the public rights-of-way of the City, and used or to be used for the purpose of providing any utility services.
“Utility service” means the provision of gas, heat, steam, light, wastewater, stormwater, water, power, electricity or communications service through utility facilities located in the public rights-of-way. (Ord. 1377 § 1, December 5, 2017.)
13.40.006 Applicability.
(1) MMC 13.40.000 to 13.40.038 apply to all governmental, public and private utilities operating within the City of Monmouth, except as specifically exempted herein.
(2) MMC 13.40.000 to 13.40.038 shall also apply to a communications service provider that provides any communications service using utility facilities owned or operated by other utilities.
(3) MMC 13.40.000 to 13.40.038 shall not apply to the provision of cable service by a person who is party to a negotiated cable franchise with the City, or to a person who is a party to a franchise for communications services or other utility services as of January 4, 2018.
(4) The requirements of MMC 13.40.000 to 13.40.038 may be varied or waived by the provisions of a negotiated franchise agreement between the City and a cable service provider or utility entered into after the effective date of the ordinance codified in this chapter.
(5) For purposes of MMC 13.40.000 to 13.40.038, the City may exercise jurisdiction over public roads as defined by ORS Chapter 368 under the jurisdiction of the State of Oregon to the extent allowed by law.
(6) MMC 13.40.000 to 13.40.038 shall not apply to utility facilities owned or operated by a governmental entity related to the use of the public rights-of-way for transportation purposes.
(7) MMC 13.40.000 to 13.40.038 shall not apply to private utility facilities that are designed and constructed to serve a particular development. Such utility facilities shall not be placed in the public rights-of-way unless a permit is obtained as provided in MMC 12.18.010 and shall be subject to all applicable requirements of the Monmouth Development Code. (Ord. 1377 § 1, December 5, 2017.)
13.40.008 Regulatory fees and compensation not a tax.
(1) The City Council, by resolution, may set such fees as are necessary to implement the provisions of MMC 13.40.000 to 13.40.038 and to compensate the City for the use of the public rights-of-way.
(2) The license fees and cost recovery fees provided for in MMC 13.40.000 to 13.40.038 are compensation charged and paid for the use of public rights-of-way, and are separate from, and in addition to, any and all Federal, State, local and City fees, taxes and costs as may be levied, imposed or due from a utility or its customers or subscribers, for purposes other than compensation for the use of public rights-of-way.
(3) The City has determined that any fee imposed by or pursuant to MMC 13.40.000 to 13.40.038 is not subject to the property tax limitations of Article XI, Sections 11 and 11(b) of the Oregon Constitution. The fees required by MMC 13.40.000 to 13.40.038 are imposed upon the specific request of the utility to be licensed to use public rights-of-way within the City and as compensation for that utility’s use of the public rights-of-way.
(4) The fees and costs provided for in this chapter are subject to applicable Federal and State laws. (Ord. 1377 § 1, December 5, 2017.)
13.40.010 License.
(1) License. A license shall be required of any utility that occupies public rights-of-way whether such use is by placing utility facilities in the public rights-of-way, by using utility facilities owned or operated by other utilities, or by attaching or locating utility facilities to, on, upon, or within the utility facilities of another. A license shall also be required to operate a private communications network or a portion thereof in the public rights-of-way. No person shall operate a utility or private communications network that occupies a public rights-of-way without a license. A utility with a utility license is not required to obtain a separate utility license to operate its own private communication network necessary to provide the utility services authorized by the utility license.
(2) Type of Utility Service. A license may authorize a utility to place one or more types of utility facilities on, over or under the public rights-of-way. A licensee shall not place on, over or under the public rights-of-way any type of utility facilities not authorized by the license.
(3) Application. Any person that desires a license must file an application with the Manager which includes the following information:
(a) The identity of the applicant.
(b) A general description of the type of utility facilities that will be located by the applicant in the public rights-of-way.
(c) The area or areas of the City the applicant desires to place utility facilities in the public rights-of-way, which may include the entire City or a part of the City, and, if the applicant has not previously served the City, a preliminary construction schedule for build-out of the utility facilities it will locate in the public rights-of-way.
(d) Information to establish that the applicant has obtained all other governmental approvals, authorizations and permits necessary to provide utility services using utility facilities in the public rights-of-way.
(4) Application Fee. An application fee in an amount set by Council resolution to recoup the City’s costs in processing the application shall be submitted to the City when an application is filed with the City.
(5) Determination by the City. The Manager 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 on the demonstrated ability of the applicant to comply with the terms of this chapter, and if the application is denied or the applicant objects to any condition or limitation imposed upon the grant of the license, the applicant may appeal to the Council pursuant to subsection (10) of this section. Factors to be considered include:
(a) The continuing capacity of the public rights-of-way to accommodate the applicant’s proposed utility facilities.
(b) The applicant’s compliance with the requirements of MMC 12.18.010 and 13.40.000 to 13.40.038.
(c) Applicable Federal, State and local laws, rules and policies.
(6) Rights Granted. No license granted pursuant to MMC 13.40.000 to 13.40.038 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 license. The person granted the license shall have no property interest or other right in the license except as provided by MMC 13.40.000 to 13.40.038. A license granted pursuant to MMC 13.40.000 to 13.40.038 is not a contract.
(7) Term of Grant. Unless otherwise specified in a license, a license granted hereunder shall be in effect until June 30th of the year which is 10 years from the year of issuance of the license.
(8) License Territory. Unless otherwise specified in a license, a license shall be for the entire City and the public rights-of-way necessary to serve the entire City.
(9) Additional Terms and Conditions. The Manager and applicant may negotiate additional terms and conditions to clarify, enhance, expand, waive or vary the provisions of MMC 13.40.000 to 13.40.038. The additional terms and conditions may conflict with the terms of MMC 13.40.000 to 13.40.038, but only with the review and approval of Council. Such additional terms and conditions shall be in writing and signed by both the City and applicant.
(10) An applicant whose application is denied, or who objects to any condition or limitation imposed upon the grant of a license under this section, may appeal the Manager’s decision to the City Council. Such appeal must be filed in writing with the Manager within 10 days after the date the decision is mailed to the applicant by first class mail, addressed to applicant’s address on the application. Upon the filing of an appeal the matter shall be set for hearing before the City Council and the City Council shall render its decision following the conclusion of the hearing. (Ord. 1377 § 1, December 5, 2017.)
13.40.012 Amendment, renewal, transfer of license.
(1) Amendment of Grant. Conditions for amending a license:
(a) In the event the license area does not include the entire City, an application shall be required of any licensee that desires to extend or locate utility facilities in public rights-of-way which are not included in a license previously granted under MMC 13.40.000 to 13.40.038. Issuance of an amended license shall be subject to the provisions of MMC 13.40.000 to 13.40.038.
(b) If ordered by the City to locate or relocate its utility facilities in public rights-of-way not included in a previously granted license, the City shall grant an amendment without further application. An application shall be required of any licensee that desires to occupy public rights-of-way to provide a type of utility service that was not included in a franchise or license previously issued by the City. Issuance of a license to occupy public rights-of-way for the new type of utility service shall be subject to the provisions of MMC 13.40.000 to 13.40.038. A license shall be issued only if the licensee is in compliance with its existing franchise or license.
(2) Renewal Determinations. An application shall be required of any licensee that desires to renew its existing license. Within 90 days after receiving a complete application, the City shall issue a written determination granting or denying the renewal application in whole or in part. If the renewal application is denied, the written determination shall include the reasons for nonrenewal. Renewal shall be based on the same factors as provided by MMC 13.40.010(5). If the renewal application is denied or the applicant objects to any condition or limitation imposed upon the grant of the license, the applicant may appeal to the Council in the manner provided in MMC 13.40.010(10).
(3) Obligation to Cure as a Condition of Renewal. No license shall be amended or renewed until any ongoing violations or defaults in the grantee’s performance of any license or agreement, or of the requirements of MMC 13.40.000 to 13.40.038, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the City.
(4) Transfers of License. A license may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the licensee, by operation of law or otherwise, nor shall control of a licensee be assigned or transferred to another person, without notice to the City at the time of transfer.
(a) The proposed assignee or transferee of the license shall agree, in writing, to assume and abide by all of the provisions of the license, shall assume all liabilities or obligations of its predecessor under the license, whether known or unknown, occurring prior to such transfer, and shall obtain and file with the City the bonding and insurance requirements of MMC 13.40.000 to 13.40.038.
(b) Any transfer of a license without notice to the City and written acceptance of the license as required under this section shall be cause for revocation of the license.
(5) Unless otherwise provided in the license or consent or by applicable law, the grantee shall reimburse the City for all direct and indirect fees, costs, and expenses reasonably incurred by the City in considering an amended or renewal license. Any application required by this section shall include an application fee in an amount set by Council resolution. (Ord. 1377 § 1, December 5, 2017.)
13.40.014 Revocation or termination of license.
(1) A license to use or occupy public rights-of-way of the City may be revoked for the following reasons:
(a) Construction in the public rights-of-way without a permit required by MMC 12.18.010.
(b) Construction or operation at an unauthorized location.
(c) Failure to comply with MMC 13.40.012 with respect to amendment, renewal or transfer of a license.
(d) Misrepresentation by or on behalf of a licensee in any application to the City.
(e) Abandonment of utility facilities in the public rights-of-way unless authorized by the City.
(f) Failure to relocate or remove utility facilities as required.
(g) Failure to pay taxes, compensation, fees or costs when and as due the City under MMC 13.40.000 to 13.40.038, unless there is a bona fide dispute as to the amount to be paid, and then only to the extent of the dispute.
(h) Violation of a material provision of MMC 13.40.000 to 13.40.038.
(i) Violation of a material term of a license.
(2) Notice and Duty to Cure. In the event that the Manager believes that grounds exist for revocation of a license, the Manager shall give the licensee 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 licensee a reasonable period of time not exceeding 30 days to furnish evidence that:
(a) Corrective action has been or is being actively and expeditiously pursued to remedy the violation or noncompliance;
(b) Rebuts the alleged violation or noncompliance; or
(c) It would be in the public interest to impose some penalty or sanction less than revocation.
(3) In the event that a licensee fails to provide evidence reasonably satisfactory to the Manager as provided in subsection (2) of this section, the Manager shall determine if the license should be revoked or establish some lesser sanction.
(4) Standards for Revocation or Lesser Sanctions. If the licensee has committed one of the acts for which a license may be revoked under subsection (1) of this section, the Manager 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 noncompliance.
(f) The violation was voluntarily disclosed, admitted or cured.
(5) The Manager’s decision may be appealed to Council in the manner provided in MMC 13.40.010(10). (Ord. 1377 § 1, December 5, 2017.)
13.40.016 General license terms.
(1) Licensee shall include any person that operates a utility and locates any utility facilities in the public rights-of-way, including a person that operates without a currently valid and unexpired license.
(2) Maps. Upon request, and in a generally recognized format acceptable to the City, each licensee shall provide the City with an accurate map(s) certifying the horizontal and vertical location, size and type of material of all of licensee’s underground utility facilities within the public rights-of-way or a portion thereof. The map(s) need not include details of the nature of the utility facilities. The map(s) shall show the horizontal and vertical location of the utility facilities to the extent such information is available. A licensee shall not be required to “pot hole” or conduct “vertical locates” to satisfy a mapping request unless reasonably required for the design of a City public improvement project.
(3) Damage to Licensee’s Utility Facilities. Unless directly and proximately caused by willful, intentional or malicious acts or negligence 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 pursuant to a permit issued by the City, or for any consequential losses resulting directly or indirectly therefrom.
(4) Duty to Provide Information. Within 60 days following a written request from the City, a licensee shall:
(a) Furnish the City with information sufficient to demonstrate that licensee has complied with all requirements of MMC 13.40.000 to 13.40.038.
(b) Make available for inspection by the City at reasonable times and intervals all maps, diagrams, plans and other documents maintained by the licensee that describe or locate utility facilities within the public right-of-way.
(5) Licensee Insurance. Unless otherwise provided in a license, each licensee shall, as a condition of the grant, secure, maintain and furnish certificates of insurance coverage of a type and amount as required by the City. Licensee may provide proof of self-insurance, satisfactory to the attorney, as an alternative means of meeting this requirement.
(6) General Indemnification. Each license includes and incorporates, to the extent permitted by law, licensee’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 licensee 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 utility services over the facilities or network, whether such acts or omissions are authorized, allowed or prohibited by MMC 13.40.000 to 13.40.038 or by a license issued pursuant to MMC 13.40.000 to 13.40.038. (Ord. 1377 § 1, December 5, 2017.)
13.40.018 License fee – Privilege fee.
(1) License Fee.
(a) Except as provided in subsection (1)(b) of this section, each license granted pursuant to MMC 13.40.000 to 13.40.038 shall be subject to the condition that the licensee shall pay a license fee in an amount or by a method or methods established from time to time by Council resolution which may include payment of a minimum license fee. The City may elect in the resolution establishing the license fee to dedicate all or a portion of the license fee to specific funds, projects or programs of the City.
(b) If a licensee only owns or operates within the City one or more transmission lines that use public rights-of-way and such line or lines’ primary purpose is to serve customers outside the City, then the licensee shall not pay a license fee under subsection (1)(a) of this section, but shall instead pay a transmission line license fee in an amount or calculated by a method determined by Council resolution.
(2) Gas, Electric, Municipal, People’s Utility District, Cooperative, Joint Operating Agency, or Special District Utility.
(a) The license fee for gas, electric, municipal, people’s utility district, cooperative, joint operating agency, or special district utilities may be a percentage of the gross revenue collected by the licensee for utility operations within the City, or such other method as determined by the Council. The gross revenues shall be reduced by net uncollectibles and sales of gas, electricity, or water at wholesale by the licensee to any public utility or public agency where the public utility or public agency purchasing such gas, electricity, or water is not the ultimate consumer. Gross revenue shall include revenue from the use, rental or lease of utility facilities.
(b) Unless the City adopts a volumetric rate, gross revenues for an electric utility shall include electricity provided by the electric utility and an electricity service supplier(s) if bills are consolidated as provided by ORS Chapter 757 related to direct access regulation. If bills are not consolidated, then each electricity service supplier and the distribution utility shall pay their respective license fee directly to the City.
(c) The City may elect to establish a volumetric rate as provided by State law for electric distribution utilities.
(3) Communications Service Providers.
(a) The license fee for a communications service provider may be a percentage of the gross revenue collected by the licensee currently earned within the boundaries of the City of Monmouth or such other method as determined by the Council. “Gross revenues” means all amounts in whatever form and from all sources, less net uncollectibles, earned from the provision of communications service originating or terminating in the City, utilizing the public rights-of-way, and charged to a customer location in the City regardless of where the service is billed or paid. Gross revenues shall also include any and all revenue from leases, licenses, permits, rental agreements, IRUs or any other use of any part of the grantee’s utility facilities in the public rights-of-way.
(b) Notwithstanding subsection (3)(a) of this section, a telecommunication utility shall pay a privilege tax on “gross revenues” as provided by ORS 221.515. To the extent that separate fees are charged for use of the public rights-of-way including, but not limited to, license applications, street opening, construction, inspection or maintenance of fixtures or utility facilities, pursuant to ORS 221.515(3), such fees shall be paid by a telecommunication utility but may be deducted from the privilege tax. In lieu of requiring payment of fees by telecommunication utilities, the City may waive or establish a system of internal transfers of revenues for such fees.
(c) The gross revenues of a communications service provider that provides communications services using utility facilities owned or operated by other utilities may be reduced by the amount paid for the use of such utility facilities if the utility that owns or operates the utility facilities reports the amount paid to them for such use as gross revenue as required by this section.
(4) A licensee that provides more than one type of utility service shall pay a license fee on each type of utility service as described in an agreement negotiated pursuant to MMC 13.40.010(9).
(5) If a utility is not specifically listed herein, the Manager shall determine the most appropriate category and the utility shall pay that license fee.
(6) Privilege Tax.
(a) Any utility that operates without a license for a period of 30 days or more within the City and uses public rights-of-way in the City for other than travel shall pay a privilege tax in the amount set by Council resolution for the use of those public rights-of-way.
(b) Such utility shall include an electricity service supplier(s) using the facilities of an electric utility and that does not consolidate bills with the electric utility and license fees are not paid pursuant to subsection (2)(b) or (2)(c) of this section.
(7) Payment Schedule.
(a) The license fee or privilege tax shall be paid quarterly, in arrears, continuing for each quarter during the term of the license or use of the public rights-of-way on the following schedule: (i) on or before November 15th for the period extending from July 1st through September 30th, inclusive, of the same calendar year; (ii) on or before February 15th for the period extending from October 1st through December 31st, inclusive, of the preceding calendar year; (iii) on or before May 15th for the period extending from January 1st through March 31st, inclusive, of the same calendar year; and (iv) on or before August 15th for the period extending from April 1st through June 30th, inclusive, of the same calendar year.
(b) A licensee or a utility operating without a license that commences operations during a quarter shall make the initial payment on or before the payment date following the quarter during which operations are commenced.
(c) In the event of termination of a utility’s operations in the City, the final payment shall be made on or before the forty-fifth day following the date of such termination.
(d) If the license fee or privilege tax is not paid to the City on or before the date due, a late payment charge shall be owed from the due date to the date on which the City receives payment, compounded monthly. The late payment charge shall be due at the same time that the utility makes the delinquent payment to the City.
(8) Reports and Audits.
(a) Pursuant to the schedule in subsection (7) of this section, each utility shall file with the City a report of the gross revenues or other approved basis on which the fee or tax is determined, setting forth the revenues collected and certified as being true and accurate.
(b) The City may, at any time, investigate and audit any report or fee payment submitted and determine the accuracy of the amount reported or paid. The utility shall make available for City investigation and audit all records, including historical records and books of the utility necessary for verification of the report or payment. Such investigation and audit may be done by the City or any person selected by the City. Neither the City’s acceptance of payment nor the City’s failure to make an investigation shall be deemed to prevent subsequent investigation by the City, or to estop the City from collecting any amount due.
(c) If, upon investigation, audit or otherwise, the fee or tax paid is determined to be excessive, a refund of the excess will be paid. If the fee paid is found to be insufficient, the Manager shall notify the utility of the amount of the deficiency and demand payment of the amount.
(d) If a utility fails to properly report or pay the true amount of gross revenue or other basis from all accounts within the City as determined by the City after investigation or audit, a late payment charge will be owed on the underreported gross revenue calculated from the first day of the calendar quarter in which the error occurred to the date on which the City receives payment, compounded monthly. The late payment charge shall be due at the same time that the utility is required to make payment of any insufficiency of the license fee or privilege tax. If the Manager determines that the insufficiency is due to fraud, intent to evade the fee or tax, or is greater than 10 percent of the total amount due, a penalty of 25 percent of the amount of the total fee or tax shall be paid in addition to the amount due and the late payment charge.
(e) Within 10 days from the date of any notice by the Manager that the license fee or privilege tax paid is insufficient and demands payment, the utility may protest to the Manager. If no such protest is taken, if the Manager decides adversely to the utility, or if the Manager decides that any other amount is due, the Manager shall proceed to collect the amount determined to be due and unpaid.
(f) In addition to any other penalties prescribed by law, if a licensee fails to make payment of any deficiency determined to be due and unpaid in accordance with the provisions of this subsection within 10 days of such final determination, the Manager may suspend the license issued to the licensee.
(g) If any person operates for more than 60 days without a license as required by MMC 13.40.000 to 13.40.038, operates during a period of suspension after licensee has exhausted all due process rights, or materially underreports the license fee or privilege tax which is due, such person shall be liable for an additional penalty, computed at two percent of the gross revenues received by that person for providing utility service in the City during the applicable period, which shall be paid in addition to the applicable license fee or privilege tax.
(9) Refunds. In the event that a utility is ordered to refund any revenues by a governmental entity or agency with jurisdiction to make such an order and such refund will affect the license fee or privilege tax paid pursuant to this section, the calculation of the license fee or privilege tax shall not include the refund except pursuant to a mutually agreed upon schedule. If there is a substantial budgetary impact, such schedule may include spreading the impact of the refund on the future license fee or privilege tax to be paid to the City over a period of time commencing the first full fiscal year following the ordering of the refund. Such schedule shall minimize the administrative impact to the licensee and may include interest on the unpaid refund.
(10) Other City Costs. All licensees shall, within 30 days after written demand, reimburse the City for all reasonable costs and expenses incurred by the City in connection with processing or acting on any modification, amendment, renewal, transfer, termination, or revocation or lesser sanction of the license consistent with applicable State and Federal laws. The written demand shall include a detailed statement of such costs and expenses.
(11) Compensation for City Property. If any right is granted by lease, or other manner, to use City property for the installation and operation of utility facilities, the compensation to be paid for such right and use shall be fixed by the City. Such compensation for the use of City property shall be in addition to the license fee or privilege tax as compensation for use of the public rights-of-way unless the use of City property by the utility is, in whole or in substantial part, in order to provide service to City facilities. (Ord. 1377 § 1, December 5, 2017.)
13.40.020 Location of utility facilities.
(1) Location of Utility Facilities. All utility facilities located within the public rights-of-way shall be installed at the expense of the utility and in accordance with the following terms and conditions, unless otherwise specified:
(a) Whenever all existing utility facilities are located underground within a public right-of-way, a person with permission to occupy the same public right-of-way must also locate its new utility facilities underground.
(b) To minimize disruption of the public rights-of-way when new or existing utility facilities are located or relocated underground within a public right-of-way, a person that currently occupies the same public right-of-way shall relocate its utility facilities underground concurrently with other affected utilities absent circumstances or hardship as determined by the City and consistent with applicable State and Federal law.
(c) The City may require undergrounding of existing utility facilities as provided by State law.
(2) Interference with the Public Rights-of-Way. No person shall locate or maintain utility facilities so as to unreasonably interfere with the use of the public rights-of-way by the City, 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, public works standards and regulations.
(3) Relocation or Removal of Utility Facilities. Except in the case of an emergency as determined by the City, or as otherwise agreed to by the City, within 30 days following written notice from the City, a person shall temporarily or permanently remove, relocate, change or alter the position of utility facilities installed by that person or that person’s predecessor in interest within the public rights-of-way. The person may request additional time to complete the removal or relocation which shall not be unreasonably denied. The City may issue such notices when the City has determined that such removal, relocation, change or alteration is reasonably necessary for:
(a) The construction, repair, maintenance or installation of any City or other public improvement in or upon the public rights-of-way, whether a public work by the City or its contractor, or the construction, repair, maintenance or installation of a public improvement by a person pursuant to the requirements of the City’s development code;
(b) The operations of the City or other governmental entity in or upon the public rights-of-way; or
(c) The public interest as determined by the Manager.
(4) Removal of Unauthorized Utility Facilities. Except in the case of an emergency, or as otherwise agreed to by the City, within 30 days following written notice from the City, any person that owns, controls or maintains any unauthorized utility facility within the public rights-of-way shall remove such utility facilities from the public rights-of-way of the City. A person may request that the City permit such utility facilities to be abandoned in place subject to such terms and conditions the City may prescribe. A utility facility is unauthorized and subject to removal in the following circumstances:
(a) One year after the expiration or termination of the person’s utility license, franchise or permit. The one-year period shall be stayed if an application for renewal has been submitted or during litigation regarding termination.
(b) Upon abandonment of a utility facility within the public rights-of-way of the City. 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 unless a longer period is approved by the City, such approval not to be unreasonably withheld. Excess capacity intended for future use shall not be considered abandoned. A utility facility will not be considered abandoned if it is temporarily out of service during performance of repairs or if the utility facility is being replaced.
(c) If the utility facility was constructed or installed without the appropriate prior authority at the time of installation and such authority has not subsequently been granted.
(d) If the utility facility was constructed or installed at a location not permitted by license, franchise or other legally sufficient permit and has not subsequently been authorized.
(e) If the utility facility is not removed or relocated as required by subsection (3) of this section.
(5) The change, alteration, relocation or removal of utility facilities pursuant to subsections (3) and (4) of this section shall be at no expense to the City. Subject to Oregon law and applicable tariffs approved by the Oregon Public Utility Commission, the relocation or removal shall be at the expense of the person required to relocate or remove the facility.
(6) If utility facilities are not relocated or removed pursuant to subsection (3) or (4) of this section, the Manager may declare the utility facility a nuisance. In addition to any other remedies provided herein, violation of this section may be enforced as an unenumerated nuisance pursuant to MMC 8.05.170.
(7) Before commencing removal or relocation, a person shall obtain a permit as required by MMC 12.18.010.
(8) If removal or relocation is necessary due to a public improvement under a contract entered into between the City and an independent contractor and the failure to remove or relocate within the time specified results in payment by the City to the contractor of any claim for extra compensation for any work or delay under said contract, the utility shall be liable for payment of the amount paid by the City to the contractor as a direct result of the utility’s failure to comply with the time requirements of the City unless the utility’s failure is caused by circumstances beyond the utility’s control or the action or inaction by the contractor. (Ord. 1377 § 1, December 5, 2017.)
13.40.022 Coordination of construction activities.
All utilities are required to make a good faith effort to cooperate with the City.
(1) By March 1st of each year, a licensee shall provide the City with a schedule of their proposed construction activities for the coming year in, around or that may affect the public rights-of-way. A licensee shall provide the City with updates as available.
(2) When requested by the City, a licensee shall meet with the City to schedule and coordinate construction in the public rights-of-way. At that time, City will provide available information on applicable plans for local, State, and Federal construction projects.
(3) All construction locations, activities and schedules shall be coordinated, as ordered by the City engineer or designee, to minimize public inconvenience, disruption or damages. (Ord. 1377 § 1, December 5, 2017.)
13.40.024 General provisions.
(1) Governing Law. Any license or permit granted under MMC 13.40.000 to 13.40.038 is subject to the provisions of the constitution, laws, and regulations of the United States, and the State of Oregon, and to the charter, ordinances, and resolutions of the City.
(2) Written License or Permit. No license or permit shall be granted under MMC 13.40.000 to 13.40.038 unless the license or permit is in writing.
(3) Nonexclusive Grant. No license or permit granted under this chapter shall confer any exclusive right, privilege, or permission to occupy or use the public rights-of-way of the City for delivery of services or any other purposes. (Ord. 1377 § 1, December 5, 2017.)
13.40.026 Severability and preemption.
If any section, subsection, clause, phrase, term, provision, condition, covenant or portion of this chapter 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 this chapter shall not be affected thereby but shall be deemed as a separate, distinct, and independent provision, and such holding shall not affect the validity of the remaining portions hereof, and each remaining section, subsection, sentence, clause, phrase, provision, condition, covenant and portion of this chapter 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 chapter, then the provision shall be read to be preempted only to the extent required by law. In the event such Federal or State law, rules or regulation is subsequently repealed, rescinded, amended, reconstrued 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. (Ord. 1377 § 1, December 5, 2017.)
13.40.028 Enforcement.
A violation of a provision of MMC 13.40.000 to 13.40.038 is subject to a fine or penalty in the maximum amount of $1,000. Each day on which a violation occurs or continues is a separate offense. (Ord. 1377 § 1, December 5, 2017.)
13.40.030 Other remedies.
Nothing in MMC 13.40.000 to 13.40.038 shall be construed as limiting any judicial remedies that the City may have, at law or in equity, for enforcement of MMC 13.40.000 to 13.40.038. (Ord. 1377 § 1, December 5, 2017.)
13.40.032 Compliance with laws.
(1) All persons shall comply with all Federal and State laws and regulations, including regulations of any administrative agency thereof, as well as all ordinances, resolutions, rules and regulations of the City heretofore or hereafter adopted or established during the entire term of any license or permit granted under MMC 13.40.000 to 13.40.038, which are relevant and relate to the construction, maintenance and operation of a utility facility in a public right-of-way.
(2) It is the sole responsibility of the person authorized to construct, install, operate and maintain a utility facility in the public right-of-way to comply with all applicable laws, regulations and conditions. It is not the responsibility of the City to guarantee compliance with the applicable laws, regulations and conditions during the application for, or the construction, installation, operation or maintenance of, the utility facility. The City is not liable in any way for any failure of the authorized person to carry out its responsibility to comply with all applicable laws, regulations and conditions. Should the authorized person fail to comply with the applicable laws, regulations, and conditions, regardless of cause, the City does not waive its ability to enforce such laws, regulations, and conditions. The City is in no way prevented or otherwise estopped from enforcing such laws, regulations, and conditions, regardless of when noncompliance is discovered. (Ord. 1377 § 1, December 5, 2017.)
13.40.034 Consent.
Wherever the consent of either the City or of the licensee is specifically required by MMC 13.40.000 to 13.40.038 or in a license or permit granted, such consent will not be unreasonably withheld. (Ord. 1377 § 1, December 5, 2017.)
13.40.036 Confidentiality.
Confidential information submitted to the City is exempt from public disclosure to the extent permitted by the Oregon Public Records Law. The City shall use its best efforts to preserve the confidentiality of information submitted to the City, if requested by, and at the cost of, the person claiming the confidentiality of such information. (Ord. 1377 § 1, December 5, 2017.)
13.40.038 Regulations for wireless communication facilities in the public rights-of-way.
(1) Definitions. For purposes of this section, the following definitions shall apply:
“Utility pole” means a pole or structure in the public right-of-way that carries transmission or distribution lines of a utility that is subject to either a license issued pursuant to MMC 13.40.000 to this section or a franchise agreement.
“Wireless communication facility” means an unmanned facility located on or near a single utility pole for the transmission of radio frequency signals for wireless communication, including but not limited to cellular telephone and broadband services, usually consisting of an antenna, cabinet or other enclosed structure containing electronic equipment, cables, wires, conduits, or other transmission and reception devices.
(2) Utility License Required. No person shall construct, install, operate, or maintain a wireless communication facility in the public right-of-way without first obtaining a utility license as provided by MMC 13.40.000 to this section. Each wireless communication facility shall obtain a separate utility license.
(3) Application. In addition to the information and fee required by MMC 13.40.010, the application for a wireless communication facility in the public right-of-way shall include the following information:
(a) A narrative, plans, and specifications demonstrating the wireless communication facility and equipment meet the criteria of subsections (4), (5), (6), (7), and (9) of this section.
(b) Written consent of the utility that owns or controls the utility pole to use the utility pole for a wireless communication facility. Such written consent shall include a statement from the utility that owns or controls the utility pole that the utility pole is structurally adequate and will safely accommodate the proposed wireless communications facility.
(c) If the application includes a request for the Manager to modify or waive the requirements of this section pursuant to subsection (11) of this section, the application shall demonstrate that the waiver or modification is necessary to fill a significant gap of service coverage and that no feasible alternatives exist.
(4) Utility Poles.
(a) A wireless communication facility in the public right-of-way shall only be installed on a utility pole; except that a wireless communication facility shall not be placed on a utility pole designed or used for traffic signals.
(b) A wireless communication facility shall not be installed on a utility pole except with the consent of the utility that owns or controls the utility pole.
(5) Replacement Utility Poles.
(a) The height of a replacement utility pole shall not exceed the height of the utility pole being replaced; except that to the extent necessary to provide clearance required by applicable electrical codes: (i) the height of the replacement utility pole may be increased up to 15 feet for the installation of antennas on the side of the replacement utility pole, or (ii) the height of the replacement utility pole plus a unicell-style top cylinder installed on top of the replacement utility pole may exceed the height of the utility pole being replaced by no more than a total of 15 feet.
(b) A nonwood replacement utility pole shall have a finish approved by the Manager such as nonreflective grey, brown, weathered steel or other finish that best matches the nearest five utility poles along the same pole line.
(c) The replacement utility pole shall be located to allow the maximum available width for pedestrians, which in no case shall be less than a four-foot clearance.
(d) Upon installation of the replacement utility pole, the utility pole being replaced shall be completely removed from the public right-of-way and disposed of at the cost of the person removing the pole.
(6) Antennas and Equipment General Requirements. Equipment may be located under, on, or above the ground as follows:
(a) In a single cabinet located on the road side of the utility pole and at right angles to the street. The cabinet shall not exceed 30 inches in height, 30 inches parallel to the street and 24 inches perpendicular to the street.
(b) In a single enclosed shelter, at right angles to the street, located on the ground on property abutting the public right-of-way but only with the permission of the abutting property owner and subject to the applicable requirements of the Monmouth Development Code.
(c) In a single cabinet, at right angles to the street, on the ground in the public right-of-way if located to allow the maximum available width for pedestrians, which in no case shall have less than a four-foot clearance. The cabinet shall not exceed 42 inches in height except in a clear vision area in which case the height shall not exceed 36 inches, 42 inches parallel to the street and 30 inches perpendicular to the street.
(d) Equipment may be located underground whenever practicable.
(7) Antennas and Equipment Construction Requirements.
(a) Mounting hardware, conduit, cabling, and other equipment installed on the side of the utility pole shall have no more than six inches of space between the utility pole and equipment.
(b) A unicell-style top cylinder may be installed on the top of the utility pole but shall not extend more than 10 feet higher than the utility pole.
(c) An antenna installed on the side of the utility pole shall not extend higher than the top of the utility pole.
(d) Antenna, mounting hardware, conduit, cabling, and other equipment installed on the utility pole shall have a nonreflective surface treatment to match the color of the utility pole.
(e) Antenna and equipment on a utility pole shall have at least a 12-foot vertical clearance from the ground.
(f) Antenna on a utility pole shall not extend horizontally more than three feet from the utility pole.
(8) Relocation and Undergrounding.
(a) If any utility pole upon which a wireless communication facility is installed is removed or relocated for any reason, the wireless communication facility and all appurtenants shall also be removed or relocated at no expense to the City.
(b) If any utility pole upon which a wireless communication facility is removed because the facilities of all other utilities using the utility pole are relocated underground for any reason, the wireless communication facility utility license for that utility pole shall be terminated and the wireless communication facility shall be removed at no expense to the City.
(9) Other Requirements.
(a) No lighting of a wireless communication facility is allowed except as required by the Federal Aviation Administration. Required lighting shall be shielded from the ground to the extent practicable.
(b) Noise generating equipment will be subject to the provisions of MMC 8.05.140.
(c) No audible or visible alarms are allowed.
(d) The name and contact telephone number of the person owning the wireless communication facility shall be affixed to the utility pole.
(e) A wireless communication facility shall be removed from the public right-of-way within six months of the date it ceases operation. Failure to remove the wireless communication facility is declared to be a public nuisance and subject to enforcement, including but not limited to abatement, pursuant to MMC 8.05.180 to 8.05.220.
(f) A wireless communication facility may only be located in the right-of-way of a City street identified as an arterial or collector.
(10) Issuance of Utility License.
(a) The Manager shall issue a utility license for a wireless communication facility in the public right-of-way if the application, plans and documents submitted comply with all requirements of MMC 13.40.000 to this section and other applicable City codes.
(b) It is the sole responsibility of the person authorized to construct, install, operate and maintain a wireless communication facility in the public right-of-way to comply with all applicable laws, regulations and conditions. It is not the responsibility of the City to guarantee compliance with the applicable laws, regulations and conditions during the application for, or the construction, installation, operation or maintenance of, the wireless communication facility. The City is not liable in any way for any failure of the authorized person to carry out its responsibility to comply with all applicable laws, regulations and conditions. Should the authorized person fail to comply with the applicable laws, regulations, and conditions, regardless of cause, the City does not waive its ability to enforce such laws, regulations, and conditions. The City is in no way prevented or otherwise estopped from enforcing such laws, regulations, and conditions, regardless of when noncompliance is discovered.
(11) Modification or Waiver of Requirements.
(a) The Manager may modify or waive the requirements of this section to the extent the applicant demonstrates that the waiver or modification is necessary to fill a significant gap of service coverage and that no feasible alternative exists.
(b) Within 10 days of receipt of the application that includes a request to modify or waive the requirements of this section, the Manager shall mail written notice of the application to: (i) the applicant and or authorized representative; and (ii) owners of record within 300 feet of the proposed location.
(c) Any person may submit written comments concerning the application within 14 days of the date of the notice.
(d) The applicant and any person submitting written comments prior to the decision shall receive notice of and may appeal the Manager’s decision in the manner of an appeal pursuant to MMC 13.40.010(10). Notice of the appeal hearing and of the decision shall be given to persons described in this subsection and to persons who submitted comments to the Manager. Any person may participate in the appeal hearing.
(e) If a requirement of this section is modified or waived, the visual impact of the antenna, mounting hardware, conduit, cabling, and equipment shall be minimized, including, but not limited to, requiring the applicant to utilize the smallest available materials that will satisfy engineering requirements and the service objectives of the wireless communication facility. (Ord. 1377 § 1, December 5, 2017.)