Chapter 10
UTILITY LICENSE AND USE OF THE RIGHTS-OF-WAY
UTILITY LICENSE AND USE OF THE RIGHTS-OF-WAY
10.020 Right-of-Way Licenses and Other Agreements.
10.030 Construction and Relocation.
10.040 Fees, Payment and Penalties.
10.050 Records, Reporting and Appeal Rights.
10.060 Application to Existing Agreements.
UTILITY LICENSE AND USE OF THE RIGHTS-OF-WAY
10.000 Title.
The ordinance codified in this chapter shall be known and may be referenced as the Utility License and Use of the Rights-of-Way (ROW) ordinance.
[Added by Ordinance No. 1723, adopted 04-12-2021.]
10.010 Definitions.
For the purpose of this chapter the following terms, phrases, words and their derivations shall have the meaning given herein:
“Gross revenue,” except as otherwise provided in subsection (1) of this definition, means any revenue received from sources within the City limits by the utility; including revenue from the use, rental or lease of operating facilities of the utility and from the provision of services by the utility. There shall be no deduction for the cost of the commodity furnished or sold, the cost of materials used, labor costs, interest, discount, delivery cost, taxes or other expense. Gross revenue does not include revenue paid directly by the United States of America or its agencies.
(1) To the extent that the City’s authority to tax or impose a fee on gross revenues of an entity is limited by State statute, the City shall apply the statutory limitations to the definition of “gross revenue.”
“Right-of-way (ROW)” means the surface of, and the space above and below, any public street, road, alley, highway, dedicated way, local access road or road easement used or intended to be used by the general public for vehicles, and any utility easement within the City.
“Utility” means any entity, including cooperatives, that supplies electrical energy, water, sewer, stormwater, gas, heat, cable, or communications, or similar purposes.
[Added by Ordinance No. 1723, adopted 04-12-2021.]
10.020 Right-of-Way Licenses and Other Agreements.
(1) License Required.
(a) Except those utilities with a valid franchise under Chapter 9 or other agreement from the City, every person or business shall obtain a license from the City prior to conducting any work in or using the ROW.
(b) Every person or business that owns, controls, or uses utilities in the ROW as of the effective date of this chapter shall apply for a license from the City within 30 days of the later of: (i) the effective date of this chapter, (ii) the expiration of a valid franchise or other agreement from the City.
(2) License Application. The license application shall be on a form provided by the City, and shall be accompanied by any additional documents required by the application to identify the applicant, its legal status, its authorization to do business in Oregon, a description of the type of utility service provided or to be provided by the applicant, a description of the facilities over which the utility service will be provided, and other information reasonably necessary to determine the applicant’s ability to comply with the terms of this chapter.
(3) License Application Fee. A nonrefundable application fee shall accompany the application as set by the City Council.
(4) Determination by City. The City shall issue, within a reasonable period of time, a written determination granting or denying the license in whole or in part. If the license is denied, the written determination shall include the reasons for denial. The license shall be evaluated based upon the provisions of this chapter, the continuing capacity of the ROW to accommodate the applicant’s proposed utility facilities and the applicable Federal, State and local laws, rules, regulations and policies.
(5) Changes to Information Listed on ROW License Application. Within 30 days of a change to the information listed on the license application, the licensee shall notify the City in writing of such change.
[Added by Ordinance No. 1723, adopted 04-12-2021.]
10.030 Construction and Relocation.
(1) No person shall perform any work on utility facilities within the ROW without first obtaining all required permits and approvals as provided in Section 3.250. The City shall not issue a permit for the construction, installation, maintenance or repair of utility facilities unless the owner of the facilities has applied for and received a valid license as required by this chapter, or has a current franchise agreement, and all applicable fees have been paid.
(2) Location of Facilities. Unless otherwise agreed to in writing by the City:
(a) Utilities shall be installed underground in all areas of the City where there are no existing overhead utility poles in the ROW or no space on existing poles in the ROW. No new poles are to be added to the ROW unless specifically approved by the City. This requirement shall not apply to pedestals, cabinets or other above-ground equipment of any utility. The City reserves the right to require written approval of the location of any such above-ground equipment in the ROW.
(b) Whenever any existing electric utilities, cable facilities or communications facilities are located underground within a ROW of the City, the utility with permission to occupy the same ROW shall install all new facilities underground at its own expense. This requirement shall not apply to facilities used for transmission of electric energy at nominal voltages in excess of 35,000 volts where there are existing poles in the ROW, or to antennas, pedestals, cabinets, or other above-ground equipment of any utility for which the utility has written authorization to place such above-ground equipment in the ROW.
(3) Relocation of Utility Facilities.
(a) The City may require, at the utility’s expense, to alter the location or position of any utility within a ROW, including relocation of aerial facilities underground. A request under this section shall be made in writing by the City.
(b) Nothing herein shall be deemed to preclude a utility from requesting reimbursement or compensation from a third party, pursuant to applicable laws, regulations, tariffs, or agreements; provided, that the utility shall timely comply with the requirements of this section regardless of whether or not it has requested or received such reimbursement or compensation.
(c) The City shall provide written notice of the time by which a utility must remove, relocate, change, alter or underground its facilities. If a utility fails to remove, relocate, change, alter or underground any utility facility as requested by the City, by the date reasonably established by the City, the utility shall pay all costs incurred by the City due to such failure. Costs shall include but not be limited to costs related to project delays. If the utility refuses to make a change requested by the City, the City may cause the utility facility to be removed, relocated, changed, altered, or undergrounded at the utility’s sole expense. Upon receipt of a detailed invoice from the City, the utility shall reimburse the City for the costs the City incurred. Reimbursement shall be made within 30 days.
(4) Removal of Unauthorized Facilities. Unless otherwise agreed to in writing by the City, within 30 days following written notice from the City or such other time agreed to in writing by the City, a utility and any other person that owns, controls, or maintains any abandoned or unauthorized utility within the ROW shall, at its own expense, remove the facility and restore the ROW.
(5) Removal by City.
(a) The City retains the right and privilege to cut or move any utility facilities located within the ROW, without notice, as the City may determine to be necessary, appropriate, or useful in response to a public health or safety emergency. The City will use qualified personnel or contractors consistent with applicable State and Federal safety laws and regulations to the extent reasonably practical without impeding the City’s response to the emergency. The City will notify the utility of any cutting or moving of facilities as soon as reasonably practical after resolution of the emergency.
(b) If the utility fails to remove any facility when required to do so under this chapter, the City may, upon at least 10 days prior written notice, remove the facility using qualified personnel or contractors consistent with applicable State and Federal safety laws and regulations, and the utility shall be responsible for paying the full cost of the removal and any administrative costs incurred by the City in removing the facility and obtaining reimbursement. Upon receipt of an invoice from the City, the utility shall reimburse the City for the costs the City incurred within 30 days. The obligation to remove shall survive the termination of the license or franchise.
(c) The City shall not be liable to any utility for any damage to utility facilities, or for any consequential losses resulting directly or indirectly therefrom, by the City or its contractor in removing, relocating or altering the facilities pursuant to this section or resulting from the utility’s failure to remove, relocate, alter, or underground its facilities as required by this chapter, unless such damage arises directly from the City’s negligence or willful misconduct.
[Added by Ordinance No. 1723, adopted 04-12-2021.]
10.040 Fees, Payment and Penalties.
(1) Except as set forth in subsection (2) of this section, utilities with facilities in ROW shall pay the City a utility license fee as adopted by the City in its fees and charges.
(2) To the extent that Federal or State law imposes limitations on the amount that the City can charge as a utility license fee that is less than the fee established in its fees and charges resolution, the utility license fee shall be the maximum amount allowed by applicable law.
(3) If an entity provides services subject to ORS 221.410 through 221.655 or are subject to State or Federal limitations and also provides other services that are subject to the utility license fee without limitation, it shall calculate and pay both any amount subject to any limitation and any amount not subject to the limitation.
(4) Utilities that pay a franchise fee may deduct the amount of the franchise fee payments from the amount due for the utility license fee. Nothing in this section limits the City’s authority to establish a franchise fee that is greater than the utility license fee.
(5) The City shall assess a late penalty of one percent of the gross revenues upon which the license fee is based for failure to timely pay the license fee. The penalty shall be doubled for each month that the fee remains delinquent.
[Added by Ordinance No. 1723, adopted 04-12-2021.]
10.050 Records, Reporting and Appeal Rights.
(1) Each utility subject to this chapter shall:
(a) Pay the required fee, at a minimum twice annually, on a timeline determined by the City Manager accompanied by a report of the gross revenues of the utility.
(b) Maintain records that accurately reflect the amount of the gross operating revenue for at least seven years.
(2) The City may conduct an investigation into the accuracy of the revenues listed in the revenue report. The utility shall make available for investigation all records and accounting of the company for verification of the reports of the company and the fees paid by the company.
(3) Any underpayment, including any interest or audit and review cost reimbursement, shall be paid within 30 days of the City’s notice to the utility of such underpayment. If the City determines that a utility has overpaid its license fee, the City shall refund the amount overpaid to the utility.
(4) A utility may appeal the City’s demand for payment to the City Council. The appeal must be in writing and specify the grounds for the appeal. The Council will hold a hearing on the appeal. If the Council determines that the utility is required to pay an additional amount, the utility shall pay the amount owed within 30 days of the Council’s decision.
[Added by Ordinance No. 1723, adopted 04-12-2021.]
10.060 Application to Existing Agreements.
To the extent that this chapter is not in conflict with and can be implemented consistent with existing franchise agreements, this chapter shall apply to all existing franchise agreements granted to utilities by the City.
[Added by Ordinance No. 1723, adopted 04-12-2021.]
10.070 Violation.
Violation of any of the provisions of this chapter shall constitute a Class A violation.
[Added by Ordinance No. 1723, adopted 04-12-2021.]