Chapter 12.40 TELECOMMUNICATIONS

A. Comply with the provisions of the 1996 Telecommunications Act as they apply to local governments, telecommunications carriers and the services those carriers offer;

B. Promote competition on a competitively neutral basis in the provision of telecommunications services;

C. Encourage the provision of advanced and competitive telecommunications services on the widest possible basis to businesses institutions and residents of the city;

D. Permit and manage reasonable access to the public rights-of-way of the city for telecommunications purposes on a competitively neutral basis and conserve the limited physical capacity of those public rights-of-way held in trust by the city;

E. 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;

F. Secure fair and reasonable compensation to the city and its residents for permitting private use of the public right-of-way;

G. Assure that all telecommunications carriers providing facilities and/or services within the city, or passing through the city, register and comply with the ordinances, rules and regulations of the city;

H. Assure that the city can continue to fairly and responsibly protect the public health, safety and welfare of its citizens;

I. Enable the city to discharge its public trust consistent with the rapidly evolving federal and state regulatory policies, industry competition and technological development. (Ord. 99-101, 1999)

12.40.030 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. Public rights-of-way include, but are not limited to, 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.

C. 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 the right-of-way. The city has jurisdiction and regulatory control over each right-of-way whether the legal interest in the right-of-way was obtained by grant, dedication, prescription, reservation, condemnation, annexation, foreclosure or other means.

D. No person may occupy or encroach on a public right-of-way without the permission of the city. The city grants permission to use rights-of-way by franchises and permits.

E. The exercise of jurisdiction and regulatory control over a public right-of-way by the city is not official acceptance of the right-of-way, and does not obligate the city to maintain or repair any part of the right-of-way.

F. The city retains the right and privilege to cut or move any telecommunications facilities located within the public rights-of-way of the city, as the city may determine to be necessary, appropriate or useful in response to any public health or safety emergency. (Ord. 99-101, 1999)

12.40.040 Regulatory fees and compensation, not a tax.

A. The fees and costs provided for in this chapter, and any compensation charged and paid for use of the public rights-of-way provided for in this chapter, are separate from, and in addition to, any and all federal, state, local and city taxes as may be levied, imposed or due from a telecommunications carrier, its customers or subscribers, or on account of the lease, sale, delivery or transmission of telecommunications services.

B. The city has determined that any fee imposed by this chapter is not subject to the property tax limitations of Article XI, Sections 11 and 11b of the Oregon Constitution. These fees are not imposed on property or property owners. These fees are not new or increased fees. (Ord. 99-101, 1999)

12.40.050 Definitions.

For the purpose of this chapter the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The words “shall” and “will” are mandatory and “may” is permissive. Words not defined herein shall be given the meaning set forth in the Communications Policy Act of 1934, as amended, the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996. If not defined there, the words shall be given their common and ordinary meaning.

A. “Aboveground facilities.” See “overhead facilities.”

B. “Affiliated interest” shall have the same meaning as ORS 759.010.

C. “Cable Act” shall mean the Cable Communications Policy Act of 1984, 47 U.S.C. 521, et seq., as now and hereafter amended.

D. “Cable service” means the one-way transmission to subscribers of video programming, or other programming service; and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

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

F. “City council” means the elected governing body of the city of Silverton, Oregon.

G. “Control” or “controlling interest” means actual working control in whatever manner exercised.

H. “City property” means and includes all real property owned by the city, other than public rights-of-way and utility easements as those are defined herein, and all property held in a proprietary capacity by the city, which are not subject to right-of-way franchising as provided in this chapter.

I. “Conduit” means any structure, or portion thereof, containing one or more ducts, conduits, manholes, handholes, bolts, or other facilities used for any telegraph, telephone, cable television, electrical, or communications conductors, or cable right-of-way, owned or controlled, in whole or in part, by one or more public utilities.

J. “Days” means calendar days unless otherwise specified.

K. “Duct” means a single enclosed raceway for conductors or cable.

L. “FCC” or “Federal Communications Commission” means the federal administrative agency, or its lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers on a national level.

M. “Franchise” means an agreement between the city and a grantee which grants a privilege to use public right-of-way and utility easements within the city for a dedicated purpose and for specific compensation.

N. “Grantee” means the person to which a franchise is granted by the city.

O. “Oregon Public Utilities Commission” or “OPUC” means the statutorily created state agency in the state of Oregon responsible for licensing, regulation and administration of certain telecommunications carriers as set forth in Oregon law, or its lawful successor.

P. “Overhead (or aboveground) facilities” means utility poles, utility facilities and telecommunications facilities above the surface of the ground, including the underground supports and foundations for such facilities.

Q. “Person” means an individual, corporation, company, association, joint stock company or association, firm, partnership, or limited liability company.

R. “Private telecommunications 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 telecommunications network” includes services provided by the state of Oregon pursuant to ORS 190.240 and 283.140.

S. “Public rights-of-way” includes, but is not limited to, 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, but only to the extent of the city’s right, title, interest or authority to grant a franchise to occupy and use such streets and easements for telecommunications facilities. “Public rights-of-way” shall also include utility easements as defined below.

T. “State” means the state of Oregon.

U. “Telecommunications” means 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.

V. “Telecommunications Act” means the Communications Policy Act of 1934, as amended by subsequent enactments including the Telecommunications Act of 1996 (47 U.S.C. 151, et seq.) and as hereafter amended.

W. “Telecommunications carrier” means any provider of telecommunications services and includes every person that directly or indirectly owns, controls, operates or manages telecommunications facilities within the city.

X. “Telecommunications facilities” means the plant and equipment, other than customer premises equipment, used by a telecommunications carrier to provide telecommunications services.

Y. “Telecommunications service” means 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.

Z. “Telecommunications system.” See “telecommunications facilities.”

AA. “Telecommunications utility” has the same meaning as ORS 759.005(1).

BB. “Underground facilities” means utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for “overhead facilities.”

CC. “Usable space” means 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. There is a rebuttable presumption that six feet of a pole is buried below ground level.

DD. “Utility easement” means any easement granted to or owned by the city and acquired, established, dedicated or devoted for public utility purposes.

EE. “Utility facilities” means the plant, equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, cable, wires, plant and equipment located under, on, or above the surface of the ground within the public right-of-way of the city and used or to be used for the purpose of providing utility or telecommunications services. (Ord. 99-101, 1999)

12.40.060 Registration of telecommunications carriers.

The purpose of registration is:

A. To assure that all telecommunications carriers who have facilities and/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 telecommunications carriers who offer to provide telecommunications services within the city, or that own or operate telecommunications facilities within the city.

C. To assist the city in the enforcement of this chapter and the collection of any city franchise 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 chapter. (Ord. 99-101, 1999)

12.40.070 Registration required.

Except as provided in SMC 12.40.090, all telecommunications carriers having telecommunications facilities within the corporate limits of the city, and all telecommunications carriers that offer or provide telecommunications service to customer premises within the city, shall register with the city on forms to be provided by the public works department which shall include the following:

A. The identity and legal status of the registrant, including any affiliates.

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 telecommunications facilities within the city.

D. A description of the telecommunications service that the registrant intends to offer or provide, or is currently offering or providing, to persons, firms, businesses or institutions 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 provided or to be provided by the registrant constitutes an occupation or privilege subject to any business tax 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 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 to have telecommunications facilities within the city.

I. If the registrant has applied for and received a city business license, list the license number.

J. Such other information as the city may reasonably require. (Ord. 99-101, 1999)

12.40.080 Registration fee.

Each application for registration as a telecommunications carrier shall be accompanied by a non-refundable registration fee in an amount to be determined by resolution of the city council. (Ord. 99-101, 1999)

12.40.090 Exceptions to registration.

The following telecommunications carriers are excepted from registration:

A. Telecommunications carriers that are owned and operated for its own use by the state or a political subdivision of this state.

B. A private telecommunications network; provided, that such network does not occupy any public rights-of-way of the city. (Ord. 99-101, 1999)

12.40.100 Construction standards – Responsibility of owner.

The owner of the telecommunications facilities to be constructed and, if different, the grantee, is responsible for performance of and compliance with all provisions of SMC 12.40.100 through 12.40.280. (Ord. 99-101, 1999)

12.40.110 Construction standards – Codes.

Telecommunications 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. 99-101, 1999)

12.40.120 Construction standards – General.

No person shall commence or continue with the construction, installation or operation of telecommunications facilities within a public right-of-way except as provided in SMC 12.40.120 through 12.40.290. (Ord. 99-101, 1999)

12.40.130 Construction standards – Construction permits.

No person shall construct or install any telecommunications facilities within a public right-of-way without first obtaining a construction permit, and paying the construction permit fee established in SMC 12.40.180. No permit shall be issued for the construction or installation of telecommunications facilities within a public right-of-way:

A. Unless the telecommunications carrier has first filed a registration statement with the city pursuant to SMC 12.40.060 through 12.40.090; and

B. Unless the telecommunications carrier has first applied for and received a franchise pursuant to SMC 12.40.350 through 12.40.420. (Ord. 99-101, 1999)

12.40.140 Construction standards – Permit applications.

Applications for permits to construct telecommunications facilities shall be submitted upon forms to be provided by the city and shall be accompanied by drawings, plans and specifications in sufficient detail to demonstrate:

A. That the facilities will be constructed in accordance with all applicable codes, rules and regulations.

B. That the facilities will be constructed in accordance with the franchise agreement.

C. The location and route of all facilities to be installed underground.

D. The location and route of all facilities to be located under the surface of the ground, including the line and grade proposed for the burial at all points along the route which are within the public rights-of-way. Existing facilities shall be differentiated on the plans from new construction.

E. The location of all existing underground utilities, conduits, ducts, pipes, mains and installations which are within the public rights-of-way along the underground route proposed by the applicant. A cross section shall be provided showing new or existing facilities in relation to the street, curb, sidewalk or right-of-way.

F. The construction methods to be employed for protection of existing structures, fixtures, and facilities within or adjacent to the public rights-of-way.

G. The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate, together with a landscape plan for protecting, trimming, removing, replacing and restoring any trees or areas to be disturbed during construction. (Ord. 99-101, 1999)

12.40.150 Construction standards – Engineer’s certification.

All permit applications shall be accompanied by the certification of a registered professional engineer that the drawings, plans and specifications submitted with the application comply with applicable technical codes, rules and regulations. (Ord. 99-101, 1999)

12.40.160 Construction standards – Construction schedule.

All permit applications shall be accompanied by a written construction schedule, which shall include a deadline for completion of construction. The construction schedule is subject to approval by the public works department. (Ord. 99-101, 1999)

12.40.170 Construction standards – Traffic control plan.

All permit applications shall be accompanied by a traffic control plan demonstrating the protective measures and devices that will be employed, consistent with 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. 99-101, 1999)

12.40.180 Construction standards – Construction permit fee.

Unless otherwise provided in a franchise agreement, 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. (Ord. 99-101, 1999)

12.40.190 Construction standards – Issuance of permit.

If satisfied that the applications, plans and documents submitted comply with all requirements of this chapter and the franchise agreement, the public works department shall issue a permit authorizing construction of the 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. 99-101, 1999)

12.40.200 Construction standards – Notice of construction.

The permittee shall notify the public works department not less than two working days in advance of any excavation or work in the public rights-of-way. (Ord. 99-101, 1999)

12.40.210 Construction standards – Locates.

The permittee shall comply with the rules adopted by the Oregon Utility Notification Center regulating the notification and marking of underground facilities. (Ord. 99-101, 1999)

12.40.220 Construction standards – Compliance with permit.

All construction practices and activities shall be in accordance with the permit and approved final plans and specifications for the facilities. The public works department and their representatives shall be provided access to the work site and such further information as they may require to ensure compliance with such requirements. (Ord. 99-101, 1999)

12.40.230 Construction standards – Display of permit.

The permittee shall maintain a copy of the construction permit and approved plans at the construction site and shall display the permit. Plans shall be made available for inspection by the public works department or their representatives at all times when construction work is occurring. (Ord. 99-101, 1999)

12.40.240 Construction standards – Noncomplying work.

Upon order of the public works department, all work which does not comply with the permit, the approved plans and specifications for the work, or the requirements of this chapter, shall be removed at the sole expense of the permittee. (Ord. 99-101, 1999)

12.40.250 Construction standards – Completion of construction.

The permittee shall promptly complete all construction activities so as to minimize disruption of the city rights-of-way and other public and private property. All construction work within city rights-of-way, including restoration, must be completed within 120 days of the date of issuance of the construction permit unless an alternate schedule has been approved pursuant to the schedule submitted and approved by the appropriate city official as contemplated by SMC 12.40.160. (Ord. 99-101, 1999)

12.40.260 Construction standards – As-built drawings.

Within 60 days after completion of construction, the permittee shall furnish the city with two complete sets of plans drawn to scale and certified to the city as accurately depicting the location of all telecommunications facilities constructed pursuant to the permit, in a format acceptable to the city engineer. (Ord. 99-101, 1999)

12.40.270 Construction standards – 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 therefrom and restore such ways or property to at least as good a condition as existed before the work was undertaken, unless otherwise directed by the city and as determined by the city engineer.

B. If weather or other conditions do not permit the complete restoration required by this section, the permittee shall temporarily restore the affected rights-of-way or 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. Any corresponding modification to the construction schedule shall be subject to approval by the city.

C. If the permittee fails to restore rights-of-way or property to at least as good a condition as existed before the work was undertaken, the city shall give the permittee written notice and provide the permittee a reasonable period of time not exceeding 30 days to restore the rights-of-way or property. If, after said notice, the permittee fails to restore the rights-of-way or 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, flagging attendants, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting such rights-of-way or property. (Ord. 99-101, 1999)

12.40.280 Construction standards – Landscape restoration.

A. All trees, landscaping and grounds removed, damaged or disturbed as a result of the construction, installation, maintenance, repair or replacement of telecommunications facilities, whether such work is done pursuant to a franchise or permit shall be replaced or restored as nearly as may be practicable, to the condition existing prior to performance of work.

B. Any trees, shrubs or other landscaping that show substantial damage within 18 months of completion of the construction, which damage can be attributed to permittee’s construction activities, must be replaced at the sole expense of the permittee.

C. All restoration work within the public rights-of-way shall be done in accordance with landscape plans approved by the city. (Ord. 99-101, 1999)

12.40.290 Construction standards – Performance and completion bond.

Unless otherwise provided in a franchise agreement, a performance bond written by a corporate surety acceptable to the city, and authorized to transact business in Oregon, equal to at least 100 percent of the estimated cost of constructing permittee’s telecommunications facilities within the public rights-of-way of the city shall be deposited before construction is commenced.

A. 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 and other property affected by the construction.

B. 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 facilities as specified by the city;

4. Restoration of the public rights-of-way and other property affected by the construction;

5. The submission of “as-built” drawings after completion of the work as required by this chapter; and

6. Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work. (Ord. 99-101, 1999)

12.40.300 Location of facilities.

All facilities located within the public right-of-way shall be constructed, installed and located in accordance with the following terms and conditions, unless otherwise specified in a franchise agreement:

A. Grantee shall install its telecommunications facilities underground unless the city specifically permits attachments to utility poles or other aboveground facilities.

B. Grantee shall install its telecommunications facilities within an existing underground duct or conduit whenever surplus capacity exists within such utility facility, unless grantee demonstrates to the satisfaction of the city that such installation is not feasible.

C. A grantee with permission to install overhead facilities shall install its telecommunications facilities on pole attachments to existing utility poles only, and then only if surplus space is available.

D. Whenever any existing electric utilities, cable facilities or telecommunications facilities are located underground within a public right-of-way of the city, a grantee with permission to occupy the same public right-of-way must also locate its telecommunications facilities underground.

E. Whenever any new or existing electric utilities, cable facilities or telecommunications facilities are located or relocated underground within a public right-of-way of the city, a grantee that currently occupies the same public right-of-way shall relocate its facilities underground concurrently with the other affected utilities to minimize disruption of the public right-of-way, absent extraordinary circumstances or undue hardship as determined by the city and consistent with state law. (Ord. 99-101, 1999)

12.40.310 Location of facilities – Interference with the public rights-of-way.

No grantee may locate or maintain its telecommunications 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 facilities 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. 99-101, 1999)

12.40.320 Location of facilities – Relocation or removal of facilities.

Within 30 days following written notice from the city, a grantee shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any telecommunications facilities within the public rights-of-way whenever the city shall have 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.

B. The operations of the city or other governmental entity in or upon the public rights-of-way.

C. The public interest. (Ord. 99-101, 1999)

12.40.330 Location of facilities – Removal of unauthorized facilities.

Within 30 days following written notice from the city, any grantee, telecommunications carrier, or other person that owns, controls or maintains any unauthorized telecommunications system, facility or related appurtenances within the public rights-of-way of the city shall, at its own expense, remove such facilities or appurtenances from the public rights-of-way of the city. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances:

A. One year after the expiration or termination of the grantee’s telecommunications franchise.

B. Upon abandonment of a facility within the public rights-of-way of the city. A 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 facility will not be considered abandoned if it is temporarily out of service during performance of repairs or if the facility is being replaced.

C. If the system or facility was constructed or installed without the prior grant of a telecommunications franchise.

D. If the system or facility was constructed or installed without the prior issuance of a required construction permit.

E. If the system or facility was constructed or installed at a location not permitted by the grantee’s telecommunications franchise or other legally sufficient permit. (Ord. 99-101, 1999)

12.40.340 Location of facilities – Coordination of construction activities.

All grantees are required to cooperate with the city and with each other.

A. By January 1st of each year, grantees shall provide the city with a schedule of their proposed construction activities in, around or that may affect the public rights-of-way.

B. Each grantee shall meet with the city, other grantees and users of the public rights-of-way annually or as determined by the city to schedule and coordinate construction in the public rights-of-way.

C. All construction locations, activities and schedules shall be coordinated, as ordered by the city engineer, to minimize public inconvenience, disruption or damages. (Ord. 99-101, 1999)

12.40.350 Telecommunications franchise.

A telecommunications franchise shall be required of any telecommunications carrier who desires to occupy public rights-of-way of the city. (Ord. 99-101, 1999)

12.40.360 Franchise – Application.

Any person that desires a telecommunications franchise shall file an application with the public works department which includes the following information:

A. The identity of the applicant, including all affiliates of the applicant.

B. A description of the telecommunications services that are or will be offered or provided by the applicant over its telecommunications facilities.

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.

D. Engineering plans, specifications and a network map of the facilities located or to be located within the city, all in sufficient detail to identify:

1. The location and route requested for applicant’s proposed telecommunications facilities;

2. The location of all aboveground and underground public utility, telecommunication, cable, water, sewer, storm drainage and other facilities in the public rights-of-way along the proposed route;

3. The location(s), if any, for interconnection with the telecommunications facilities of other telecommunications carriers.

E. If applicant is proposing to install aboveground facilities, to the extent that they will be using utility poles, evidence that surplus space is available for locating its telecommunications facilities on existing utility poles along the proposed route.

F. If 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 applicant’s telecommunications facilities;

2. The excess capacity, if any, that will exist in such ducts or conduits after installation of applicant’s telecommunications facilities.

G. If 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 telecommunications facilities.

H. The area or areas of the city the applicant desires to serve and a preliminary construction schedule for build-out to the entire franchise area.

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 facilities.

J. Information in sufficient detail to establish the applicant’s technical qualifications, experience and expertise regarding the telecommunications 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 facilities and to offer or provide the telecommunications services proposed.

L. Whether the applicant intends to provide cable service, video dialtone service or other video programming service.

M. An accurate map showing the location of any existing telecommunications facilities in the city that applicant intends to use or lease.

N. A description of any services or facilities that the applicant will offer or make available to the city and other public, educational and governmental institutions and at what cost.

O. A description of applicant’s access and line extension policies.

P. Such other information as may be requested by the city manager or their designee. (Ord. 99-101, 1999)

12.40.370 Franchise – Application and review fee.

A. Applicant shall reimburse the city for such reasonable costs as the city incurs in entering into the franchise agreement.

B. An application and review fee of $2,000 shall be deposited with the city as part of the application filed pursuant to SMC 12.40.360. Expenses exceeding the deposit will be billed to the applicant or the unused portion of the deposit will be returned to the applicant following the determination granting or denying the franchise. (Ord. 99-101, 1999)

12.40.380 Franchise – Determination by the city.

The city shall issue a written determination granting or denying the application in whole or in part, applying the standards listed below. If the application is denied, the written determination shall include the reasons for denial. The standards to be applied by city are:

A. The financial and technical ability of the applicant.

B. The legal capacity of the applicant.

C. The capacity of the public rights-of-way to accommodate the applicant’s proposed facilities.

D. The capacity of the public rights-of-way to accommodate additional utility and telecommunications facilities if the franchise is granted.

E. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the franchise is granted.

F. The public interest in minimizing the cost and disruption of construction within the public rights-of-way.

G. The service that applicant will provide to the community and region.

H. The effect, if any, on public health, safety and welfare if the franchise is granted.

I. The availability of alternate routes and/or locations for the proposed facilities.

J. Applicable federal and state telecommunications laws, regulations and policies. (Ord. 99-101, 1999)

12.40.390 Franchise – Rights granted.

No franchise granted pursuant to 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 stated in the franchise agreement. (Ord. 99-101, 1999)

12.40.400 Franchise – Term of grant.

Unless otherwise specified in a franchise agreement, a telecommunications franchise granted hereunder shall be in effect for a term of five years. (Ord. 99-101, 1999)

12.40.410 Franchise – Territory.

Unless otherwise specified in a franchise agreement, a telecommunications franchise granted hereunder shall be limited to a specific geographic area of the city to be served by the franchise grantee, and the public rights-of-way necessary to serve such areas. (Ord. 99-101, 1999)

12.40.420 Franchise – Fee.

Each franchise granted by the city is subject to the city’s right, which is expressly reserved, to fix a fair and reasonable compensation to be paid for the privileges granted; provided, nothing in this chapter shall prohibit the city and a grantee from agreeing to the compensation to be paid. The compensation shall be subject to the specific payment terms and conditions contained in the franchise agreement. (Ord. 99-101, 1999)

12.40.430 Franchise – Amendment.

Conditions for amending a franchise:

A. A new application and grant shall be required of any telecommunications carrier that desires to extend or locate its telecommunications facilities in public rights-of-way of the city which are not included in a franchise previously granted under this chapter.

B. If ordered by the city to locate or relocate its telecommunications facilities in public rights-of-way not included in a previously granted franchise, the city shall grant an amendment without further application.

C. A new application and grant shall be required of any telecommunications carrier that desires to provide a service which was not included in a franchise previously granted under this chapter. (Ord. 99-101, 1999)

12.40.440 Franchise – Renewal applications.

A grantee that desires to renew its franchise under this chapter shall, not less than 180 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 SMC 12.40.360.

B. Any information required pursuant to the franchise agreement between the city and the grantee. (Ord. 99-101, 1999)

12.40.450 Franchise – Renewal determinations.

Within 90 days after receiving a complete application under SMC 12.40.440 hereof, the city shall issue a written determination granting or denying the renewal application in whole or in part, applying the following standards. If the renewal application is denied, the written determination shall include the reasons for nonrenewal.

A. The financial and technical ability of the applicant.

B. The legal ability of the applicant.

C. The continuing capacity of the public rights-of-way to accommodate the applicant’s existing and proposed facilities.

D. The applicant’s compliance with the requirements of this chapter and the franchise agreement.

E. Applicable federal, state and local telecommunications laws, rules and policies.

F. Such other factors as may demonstrate that the continued grant to use the public rights-of-way will serve the community interest. (Ord. 99-101, 1999)

12.40.460 Franchise – 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 agreement, 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. 99-101, 1999)

12.40.470 Franchise – Assignments or transfers of system or franchise.

Ownership or control of a majority interest in a telecommunications system or franchise may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the grantee, by operation of law or otherwise, without the prior consent of the city, 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 or system shall provide and certify the following information to the city not less than 120 days prior to the proposed date of transfer:

1. Complete information setting forth the nature, terms and condition of the proposed transfer or assignment;

2. All information required of a telecommunications franchise applicant pursuant to SMC 12.40.360 with respect to the proposed transferee or assignee;

3. Any other information reasonably required by the city.

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 telecommunications system pursuant to this chapter.

C. Unless otherwise provided in a franchise agreement, 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 telecommunications franchise.

D. Any transfer or assignment of a telecommunications franchise, system or integral part of a system without prior approval of the city under this section or pursuant to a franchise agreement shall be void and is cause for revocation of the franchise. (Ord. 99-101, 1999)

12.40.480 Franchise – Revocation or termination.

A franchise to use or occupy public rights-of-way of the city may be revoked for the following reasons:

A. Construction or operation in the city or in the public rights-of-way of the city without a construction permit.

B. Construction or operation at an unauthorized location.

C. Failure to comply with SMC 12.40.470 with respect to sale, transfer or assignment of a telecommunications system or franchise.

D. Misrepresentation by or on behalf of a grantee in any application to the city.

E. Abandonment of telecommunications facilities in the public rights-of-way.

F. Failure to relocate or remove facilities as required in this chapter.

G. Failure to pay taxes, compensation, fees or costs when and as due the city.

H. Insolvency or bankruptcy of the grantee.

I. Violation of material provisions of this chapter.

J. Violation of the material terms of a franchise agreement. (Ord. 99-101, 1999)

12.40.490 Franchise – Notice and duty to cure.

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. 99-101, 1999)

12.40.500 Franchise – Public hearing.

In the event that a grantee fails to provide evidence reasonably satisfactory to the city as provided in SMC 12.40.490, the city manager shall refer the apparent violation or noncompliance to the city council. The city council shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter. (Ord. 99-101, 1999)

12.40.510 Franchise – 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 agreement, 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. 99-101, 1999)

12.40.520 Franchise – Other city costs.

All grantees shall, within 30 days after written demand therefor, 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 or any franchise agreement. (Ord. 99-101, 1999)

12.40.530 General franchise terms – Facilities.

Each grantee shall provide the city with an accurate map or maps certifying the location of all telecommunications facilities within the public rights-of-way. Each grantee shall provide updated maps annually. (Ord. 99-101, 1999)

12.40.540 General franchise terms – 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 telecommunications facility within the public rights-of-way of the city as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind in the public rights-of-way by or on behalf of the city, or for any consequential losses resulting directly or indirectly therefrom. (Ord. 99-101, 1999)

12.40.550 General franchise terms – Duty to provide information.

Within 10 days of a written request from the city, each grantee shall furnish the city with information sufficient to demonstrate:

A. That 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 facilities within the public rights-of-way shall be made available for inspection by the city at reasonable times and intervals. (Ord. 99-101, 1999)

12.40.560 General franchise terms – Nondiscrimination.

A grantee shall make its telecommunications services available to any customer within its franchise area who shall request such service, without discrimination as to the terms, conditions, rates or charges for grantee’s services; provided, however, that nothing in this chapter shall prohibit a grantee from making any reasonable classifications among differently situated customers. (Ord. 99-101, 1999)

12.40.570 General franchise terms – Service to the city.

If the city contracts for the use of telecommunication facilities, telecommunication services, installation, or maintenance from the grantee, the grantee shall charge the city the grantee’s most favorable rate offered at the time of the request charged to a similar user within Oregon for a similar volume of service, subject to any of grantee’s tariffs or price lists on file with the OPUC. With the city’s permission, the grantee may deduct the applicable charges from fee payments. Other terms and conditions of such services may be specified in a separate agreement between the city and grantee. (Ord. 99-101, 1999)

12.40.580 General franchise terms – Compensation for city property.

If any right is granted, by lease, franchise or other manner, to use and occupy city property for the installation of telecommunications facilities, the compensation to be paid for such right and use shall be fixed by the city. (Ord. 99-101, 1999)

12.40.590 General franchise terms – Cable franchise.

Telecommunication carriers providing cable service shall be subject to the cable franchise requirements in Ordinance 89-114, or such other franchise that shall be in effect. (Ord. 99-101, 1999)

12.40.600 General franchise terms – Leased capacity.

A grantee shall have the right, without prior city approval, to offer or provide capacity or bandwidth to its customers; provided, that the grantee shall notify the city that such lease or agreement has been granted to a customer or lessee. (Ord. 99-101, 1999)

12.40.610 General franchise terms – Grantee insurance.

Unless otherwise provided in a franchise agreement, 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:

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

1. Three million dollars for bodily injury or death to each person;

2. Three million dollars for property damage resulting from any one accident; and,

3. Three million dollars for all other types of liability.

B. Automobile liability for owned, non-owned and hired vehicles with a limit of $1,000,000 for each person and $3,000,000 for each accident.

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

D. Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than $3,000,000.

E. The liability insurance policies required by this section shall be maintained by the grantee throughout the term of the telecommunications franchise, and such other period of time during which the grantee is operating without a franchise hereunder, or is engaged in the removal of its telecommunications facilities. Each such insurance policy shall contain the following endorsement:

It is hereby understood and agreed that 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 Public Works of such intent to cancel or not to renew.

F. Within 60 days after receipt by the city of said notice, and in no event later than 30 days prior to said cancellation, the grantee shall obtain and furnish to the city evidence that the grantee meets requirements of this section. (Ord. 99-101, 1999)

12.40.620 General franchise terms – General indemnification.

Each franchise agreement 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 telecommunications facilities, and in providing or offering telecommunications services over the facilities or network, whether such acts or omissions are authorized, allowed or prohibited by this chapter or by a franchise agreement made or entered into pursuant to this chapter. (Ord. 99-101, 1999)

12.40.630 General franchise terms – Performance surety.

Before a franchise granted pursuant to this chapter is effective, and as necessary thereafter, the grantee shall provide a performance bond, in form and substance acceptable to the city, as security for the full and complete performance of a franchise granted under this chapter, including any costs, expenses, damages or loss the city pays or incurs because of any failure attributable to the grantee to comply with the codes, ordinances, rules, regulations or permits of the city. This obligation is in addition to the performance bond required by SMC 12.40.290 for construction of facilities. (Ord. 99-101, 1999)

12.40.640 General provisions – Governing law.

Any franchise granted under this chapter is subject to the provisions of the Constitution and laws of the United States, and the state of Oregon and the ordinances and Charter of the city. (Ord. 99-101, 1999)

12.40.650 General provisions – Written agreement.

No franchise shall be granted hereunder unless the agreement is in writing. (Ord. 99-101, 1999)

12.40.660 Nonexclusive grant.

No franchise granted under this chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the public rights-of-way of the city for delivery of telecommunications services or any other purposes. (Ord. 99-101, 1999)

12.40.670 Severability and preemption.

If any article, section, subsection, sentence, 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 the 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 enforce-ability 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, rules or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision hereof that had been preempted is no longer preempted, such provision shall thereupon return to full force and effect, and shall thereafter be binding, without the requirement of further action on the part of the city, and any amendments hereto. (Ord. 99-101, 1999)

12.40.680 Penalties.

Any person found guilty of violating, disobeying, omitting, neglecting or refusing to comply with any of the provisions of this chapter shall be fined not less than $100.00 nor more than $1,000 for each offense. A separate and distinct offense shall be deemed committed each day on which a violation occurs. (Ord. 99-101, 1999)

12.40.690 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. 99-101, 1999)

12.40.700 Captions.

The captions to sections throughout this chapter are intended solely to facilitate reading and reference to the sections and provisions contained herein. Such captions shall not affect the meaning or interpretation of this chapter. (Ord. 99-101, 1999)

12.40.710 Compliance with laws.

Any grantee under this chapter 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 any franchise granted under this chapter, which are relevant and relate to the construction, maintenance and operation of a telecommunications system. (Ord. 99-101, 1999)

12.40.720 Consent.

Wherever the consent of either the city or of the grantee is specifically required by this chapter or in a franchise granted, such consent will not be unreasonably withheld. (Ord. 99-101, 1999)

12.40.730 Application to existing ordinance and agreements.

To the extent that this chapter is not in conflict with and can be implemented with existing ordinance and franchise agreements, this chapter shall apply to all existing ordinance and franchise agreements for use of the public right-of-way for telecommunications. (Ord. 99-101, 1999)

12.40.740 Confidentiality.

The city agrees to use its best efforts to preserve the confidentiality of information as requested by a grantee, to the extent permitted by the Oregon Public Records Law. (Ord. 99-101, 1999)