The purpose of this chapter is to:
(A) Comply with the provisions of the 1996 Telecommunications Act as they apply to local governments, Carriers and the services they offer;
(B) Establish clear local guidelines, standards and time frames for the exercise of local authority with respect to the regulation of Carriers and services;
(C) Promote competition on a competitively neutral basis in the provision of telecommunications services;
(D) Encourage the provision of advanced and competitive telecommunications services on the widest possible basis to businesses, institutions and residents of the city;
(E) Permit and manage reasonable access to the public rights-of-way 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;
(F) Assure that the city's current and ongoing costs of granting and regulating private access to and the use of the public rights-of-way are fully compensated by the persons seeking such access and causing such costs to be incurred;
(G) Secure fair and reasonable compensation to the city and its residents for permitting private use of the public rights-of-way;
(H) Assure that all Carriers providing facilities or services within the city, or passing through the city, register and comply with the ordinances, rules and regulations of the city;
(I) Assure that the city can continue to fairly and responsibly protect the public health, safety and welfare of its citizens;
(J) Enable the city to discharge its public trust consistent with the rapidly evolving federal and state regulatory policies, industry competition and technological development.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
(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 or entity 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 remove 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. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
To the extent not specifically precluded by the Cable Act or any other federal law, this chapter shall apply to cable service provided within the city and to Open Video Systems, as that term is used in section 653 of the Telecommunications Act.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
(A) The regulatory fees and costs provided for in this chapter, and any compensation charged and paid for the public rights-of-way provided for in this chapter, are separate from, and in addition to, any and all federal, state, local and city taxes as may be levied, imposed or due from a Carrier, its customers or subscribers, or on account of the lease, sale, delivery or transmission of telecommunications services.
(B) The city has determined that any fee imposed by this chapter is not subject to the property tax limitations of Chapter XI, Section 11(b) of the Oregon Constitution.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
For the purpose of this chapter the following terms, phrases, words and their derivations shall have the meaning defined in this chapter. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The words “shall” and “will” are mandatory and “may” is permissive. Words not defined in this chapter shall be given the meaning set forth in the Communications Policy Act of 1934, as amended, the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996. If not defined there, the words shall be given their common and ordinary meaning.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
The purpose for registration is:
(A) To assure that all Carriers who have facilities or provide services within the city comply with the ordinances, rules and regulations of the city.
(B) To provide the city with accurate and current information concerning the Carriers who offer to provide telecommunications services within the city, or that own or operate telecommunications facilities within the city.
(C) To assist the city in the enforcement of this title 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 title.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Except as provided in § 115.023, all Carriers having telecommunications facilities within the corporate limits of the city, and all Carriers that offer or provide telecommunications service to customer premises within the city, shall register with the city. Registration shall be on forms to be provided by the City Manager or his designee which shall include the following:
(A) The identity and legal status of the registrant, including any 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 licensing or franchising under this title.
(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 municipal telecommunications tax, utility tax or other occupation 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 or the OPUC to have telecommunications facilities within the city.
(I) Such other information as the city may reasonably require.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Each application for registration as a Carrier shall be accompanied by a non-refundable registration fee, in an amount to be established by resolution by the City Council.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
The following Carriers are excepted from registration:
(A) Telecommunications Carriers that are owned and operated exclusively for its own use by the state or a political subdivision of this state and provide telecommunications services for governmental purposes only.
(B) A private telecommunications network, provided that such network does not use or occupy any public rights-of-way of the city.
(C) Carriers that are Grantees under a telecommunications franchise with the city or are actively and expeditiously pursuing such a franchise.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
No person shall commence or continue with the construction, installation or operation of telecommunications facilities within public rights-of-way in the city except as provided in this chapter.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
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. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
(A) No person shall construct or install any telecommunications facilities within a public right-of-way in the city without first obtaining a construction permit and paying the construction permit fee established in § 115.035.
(B) No permit shall be issued for the construction or installation of telecommunications facilities in the public rights-of-way unless the Carrier has first applied for and received a franchise pursuant to §§ 115.070 - 115.088.
(C) No permit shall be necessary for the installation of a customer specific wire (“a drop”) by a franchise Grantee where no excavation within the right-of-way occurs.
(D) No permit shall be necessary for the installation of telecommunication facilities within a utility easement that is not otherwise within, under or over a public street, road, highway, bridge, alley, bikeway, sidewalk, trail or path.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Applications for permits to construct telecommunications facilities within a public right-of-way shall be submitted upon forms to be provided by the city and shall be accompanied by drawings, plans, specifications and maps, in sufficient detail to demonstrate:
(A) That the facilities will be constructed in accordance with all applicable codes, rules and regulations and that the facilities will be constructed in accordance with the franchise agreement.
(B) The location and route of all facilities on or in the public rights-of-way to be installed above-ground or on existing utility poles. The location and route of all facilities to be located under the surface of the ground within the public rights-of-way. Existing facilities shall be differentiated on the plans from new construction.
(C) The location of all of applicant's 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.
(D) A typical cross section shall be provided showing new or existing facilities in relation to the street, curb, sidewalk or right-of-way.
(E) The location, dimension and types of all trees which will be substantially trimmed, removed or replaced as a result of the areas disturbed during construction and which are within or adjacent to the public rights-of-way along the route proposed by the applicant. The applicant shall submit a landscape plan, satisfactory to the city, for the replacement of such trees.
(F) The application shall also be accompanied by computer generated electronic maps of the proposed installations in a format specified by the city unless the applicant demonstrates that the format utilized was developed by the applicant and is proprietary and that maps cannot reasonably be created that conform to the city's specifications.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
All work on, in, under, across or along any public rights-of-way shall be performed consistent with the Uniform Manual of Traffic Control Devices, to prevent injury or damage to persons or property and to minimize disruptions to efficient pedestrian and vehicular traffic.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
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. Nothing in this section shall require a telecommunications utility to pay a permit fee unless the utility is providing telecommunication services in addition to exchange access services.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
The Grantee, for any construction requiring pavement cuts, shall pay to the city an amount to reimburse the city for the pavement degradation and shortened pavement life that results from such cuts. Such fees shall be set by resolution of the City Council and shall be based upon the linear feet of the pavement cut, the age of the pavement when cut and whether the excavation is transverse or longitudinal. This section shall not apply to a Telecommunication Utility if such fee is determined to fall within the restrictions of ORS 221.515(3).
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
If satisfied that the applications, plans and documents submitted comply with all requirements of this title, the City Manager or his designee shall issue a permit authorizing construction of the 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. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
The permittee shall submit a written construction schedule to the City Manager or his designee before commencing any work in or about the public rights-of-way. At the city's request, the construction schedule shall include a best estimate deadline for completion of construction. The schedule is subject to approval by the City Manager or his designee. The permittee shall further notify the City Manager or his designee not less than two working days in advance of commencing the project under the issued permit for excavation or work in the public rights-of-way. When advance notice is not possible because of an emergency, the permittee shall give notice within 24 hours of the excavation or work. When feasible, permittee shall contact all other Grantees or utilities located within the public right-of-way where construction is to occur. The purpose of the contact is to determine if joint projects are feasible in order to allow joint projects if desired to minimize duplication of work and unnecessary excavation. For those Grantees or utilities expressing interest in a joint project, permittee shall give them reasonable notice of the particular dates on which open trenching exists. Upon mutual agreement, permittee shall make the trench available to Grantees and utilities for installation of conduit, pedestals, vaults, laterals, wires, lines or equipment. The payment for the cost of trenching and installation shall be as mutually agreed to by the parties. Provided permittee demonstrates a good faith attempt to coordinate, the city shall not withhold issuance of any permit due to the inability of the permittee and any Grantee or utility to agree upon scheduling of the project and/or reimbursement of costs associated with the project.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
The permittee is responsible for becoming familiar with, and understanding the provisions of ORS Chapter 757, governing the location of underground facilities (the “One-Call statutes”). Grantee shall comply with the terms and conditions set forth in the One-Call statutes. Every Grantee under this chapter shall join and maintain membership in the Oregon Utility Notification Center and shall comply with the rules adopted by the center regulating the notification and marking of underground facilities.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
All construction practices and activities shall be in accordance with the permit and approved final plans and specifications for the facilities. The City Manager or his designee and its representatives shall be provided access to the work site and such information that is not confidential, sensitive or proprietary as they may require to ensure compliance with such requirements.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Upon order of the City Manager or his designee, after reasonable notice and an opportunity to cure has been given, all work which does not comply with the permit, the approved plans and specifications for the work, the franchise agreement or the requirements of this chapter, shall be removed at the sole expense of the permittee.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
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 authorized by a permit within city rights-of-way, including restoration, must be completed within 120 days of the date of issuance unless the City Manager or his designee agrees to a longer period.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Within 60 days after completion of construction, the permittee shall furnish the city with two complete sets of plans in hard copy format and a set in a computerized format specified by the city, drawn to scale and certified to the city as accurately depicting the location of all telecommunications facilities constructed pursuant to the permit.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
(A) When a permittee, or any person acting on its behalf, does any work in or affecting any public rights-of-way or city property, it shall, at its own expense, promptly remove any obstructions and restore such ways or property to as near the original condition as reasonably possible, unless otherwise directed by the city.
(B) If weather or other conditions do not permit the complete restoration required by this section, the permittee shall temporarily restore the affected 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.
(C) If the permittee fails to restore 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, flagmen, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting such rights-of-way or property.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
(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) All restoration work within the public ways shall be done in accordance with landscape plans approved by the city.
(C) Any tree, shrub or other landscaping that shows substantial damage within 18 months of completion of construction, attributable to construction, must be replaced at the sole expense of the Grantee.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
(A) Unless otherwise provided in a franchise agreement, or unless the city otherwise specifically approves an alternative security to assure performance, a performance bond written by a corporate surety acceptable to the city, and authorized to transact business in Oregon, equal to at least 100% of the estimated cost of constructing Grantee's telecommunications facilities within the public rights-of-way of the city shall be deposited before construction is commenced.
(B) The performance bond shall remain in force until 60 days after substantial completion of the work, as determined in writing by the city, including restoration of public rights-of-way and other property affected by the construction.
(C) The performance bond shall guarantee, to the satisfaction of the city:
(1) Timely completion of construction;
(2) Construction in compliance with applicable plans, permits, technical codes and standards;
(3) Proper location of the 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 title; and
(6) Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
(A) Grantee shall install its telecommunications facilities in accordance with the city's generally applicable aboveground and underground utility facility placement policies in effect as of the date of adoption of this chapter. No entity with existing attachments to utility poles shall be required to install new or existing facilities underground except as provided in the following subsection.
(B) Grantee agrees that, at such time as the city adopts policies and requirements permitting or requiring the underground installation of telecommunications facilities. Grantee shall fully comply with such policies and requirements provided they are imposed on Carriers in a competitively neutral and nondiscriminatory manner.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
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. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
(A) Within 60 days following written notice from the city, a Grantee shall, at no expense to the city, temporarily or permanently remove, relocate, change or alter the position of any 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:
(1) The construction, repair, maintenance or installation of any city or other public improvement in or upon the public rights-of-way.
(2) The operations of the city or other governmental entity in or upon the public rights-of-way.
(B) Notwithstanding the 60 day limit, a Grantee shall, at no expense to the city, relocate overhead facilities within 30 days following written notice from the City Manager or his designee that a joint pole owner has space on poles for such purpose. The 30 or 60 day limit may be waived by consent of the parties. Waivers shall not be unreasonably withheld.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
(A) Within 30 days following written notice from the city, any Grantee, 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.
(B) A telecommunications system or facility is unauthorized and subject to removal in the following circumstances:
(1) One year after the expiration or termination of the Grantee's telecommunications franchise.
(2) 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, if the facility is excess capacity of a current Grantee who is not in default, if the facility is being replaced or if the facility has been disconnected because the building or property being served is vacant.
(3) If the system or facility was constructed or installed without the prior grant of a telecommunications franchise.
(4) If the system or facility was constructed or installed without the prior issuance of a required construction permit.
(5) If the system or facility was constructed or installed at a location not permitted by the Grantee's telecommunications franchise.
(6) If the system interferes with or adversely affects existing telecommunication facilities.
(C) The 30 day limit may be waived by consent of the parties. Waivers shall not be unreasonably withheld.
(D) If all the facilities and appurtenances are not removed within one year after the termination or expiration of the franchise or such further time as may be granted by the city, they shall be forfeited to the city. The city may notify the Grantee, Carrier or other person described above that it waives forfeiture and may compel removal from the public right-of-way and restoration of the right-of-way and may maintain court suit to require such removal and restoration by the Grantee, Carrier or other person or the payment of the cost thereof by the Grantee, Carrier or other person.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
A telecommunications franchise shall be required of any Carrier who desires to occupy public rights-of-way of the city.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Any person that desires a telecommunications franchise pursuant to this chapter shall file an application with the City Manager or his designee which shall include the following information:
(A) The identity of the applicant, including all affiliates of the applicant doing business in the state.
(B) A description of the telecommunications services that are or will be offered or provided by the applicant over its telecommunications facilities within the city.
(C) A description of the transmission medium that is being used or will be used by the applicant to offer or provide such telecommunications services within the city.
(D) Preliminary engineering plans, specifications and a network map of the facilities to be located within the public rights-of-way in the city, including copies in hard copy and computerized format specified by the city and all in sufficient detail to identify:
(1) The location and route requested for applicant's proposed 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 Carriers;
(4) The specific trees, structures, improvements, facilities and obstructions, if any, the applicant proposes to temporarily or permanently remove or relocate.
(E) If the applicant is proposing to install aboveground facilities, to the extent that the applicant will be using utility poles, evidence from the pole owner that usable space is available for locating the applicant's telecommunications facilities on existing poles along the proposed route; and if usable space is not available in some or all service areas, an indication of these locations and a “make ready” schedule for completion.
(F) If the applicant is proposing an underground installation in existing ducts or conduits within the public rights-of-way, provide information in sufficient detail to identify:
(1) The excess capacity currently available in such ducts or conduits before installation of the applicant's telecommunications facilities;
(2) The excess capacity, if any, that will exist in such ducts or conduits after installation of the applicant's telecommunications facilities.
(G) If the applicant is proposing an underground installation within new ducts or conduits to be constructed within the public rights-of-way:
(1) The location proposed for the new ducts or conduits;
(2) The excess capacity that will exist in such ducts or conduits after the installation of applicant's telecommunications facilities.
(H) A preliminary construction schedule and completion date.
(I) Financial statements prepared in accordance with generally accepted accounting principles
demonstrating the applicant's financial ability to construct, operate, maintain, relocate and remove the 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 dial tone service or other video programming service, and sufficient information to determine whether such service is subject to cable franchising.
(M) An accurate map showing the location of any existing telecommunications facilities in the city that the applicant intends to use or lease.
(N) A description of the services or facilities that the applicant will offer or make available to the city and other public, educational and governmental institutions.
(O) A description of the applicant's access and line extension policies.
(P) The area or areas of the city the applicant desires to serve and a schedule for build-out to the entire franchise area.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
(A) Any applicant for a franchise pursuant to this chapter shall pay an application and review fee in an amount to be determined by resolution of the City Council. This section shall not apply to a telecommunication utility which provides only local exchange access.
(B) The application and review fee shall be deposited with the city as part of the application filed pursuant to § 115.071.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
(A) The city shall issue a written determination granting or denying the application in whole or in part, applying the standards listed below.
(B) If the application is denied, the written determination shall include the reasons for denial. The standards to be applied by city are:
(1) The financial and technical ability of the applicant.
(2) The capacity of the public rights-of-way to accommodate the applicant's proposed facilities.
(3) The capacity of the public rights-of-way to accommodate additional utility and telecommunications facilities if the franchise is granted.
(4) The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the franchise is granted.
(5) The public interest in minimizing the cost and disruption of construction within the public rights-of-way.
(6) The availability of alternate routes or locations for the proposed facilities.
(7) Applicable federal and state telecommunications laws, regulations and policies.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
No franchise granted under this chapter shall convey any right, title or interest in the public rights-of-way, but shall be deemed a grant to use and occupy the public rights-of-way for the limited purposes and term, and upon the conditions stated in the franchise agreement.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Unless otherwise specified in a franchise agreement, a telecommunications franchise granted under this title shall be in effect for a term of five years.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Unless otherwise specified in a franchise agreement, a telecommunications franchise granted under this chapter shall be limited to the 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. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Each franchise granted under this chapter is subject to the city's right, which is expressly reserved, to annually 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.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
(A) Conditions for amending a franchise:
(1) A new application and grant shall be required of any Carrier that desires to extend or locate its telecommunications facilities in public rights-of-way of the city which are not included in a franchise previously granted under this chapter.
(2) 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.
(B) A new application and grant shall be required of any Carrier that desires to provide a service which was not included in a franchise previously granted under this chapter.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
A Grantee that desires to renew its franchise under this chapter shall, not less than 90 days before expiration of the current agreement, file an application with the city for renewal of its franchise which shall include the following information:
(A) The information required pursuant to § 115.071 that has not previously been provided to the city in connection with the Grantee's existing franchise agreement.
(B) Any information required pursuant to the franchise agreement between the city and the Grantee.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
(A) Within 90 days after receiving a complete application under § 115.071, the city shall issue a written determination granting or denying the renewal application in whole or in part, applying the following standards.
(1) The financial and technical ability of the applicant.
(2) The continuing capacity of the public rights-of-way to accommodate the applicant's existing facilities.
(3) The applicant's compliance with the requirements of this chapter and the franchise agreement.
(4) Applicable federal, state and local telecommunications laws, rules and policies.
(B) If the renewal application is denied, the written determination shall include the reasons for non-renewal.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
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. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
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 agree, in writing, to assume and abide by all of the provisions of the franchise.
(B) No transfer shall be approved unless the assignee or transferee has the legal, technical, financial and other requisite qualifications to own, hold and operate the 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 grant.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Any transactions which singularly or collectively result in a change of 10% or more of the ownership or working control of the Grantee, of the ownership or working control of a telecommunications franchise, of the ownership or working control of affiliated entities having ownership or working control of the Grantee or of a telecommunications system, or of control of the capacity or bandwidth of the Grantee's telecommunication system, facilities or substantial parts of such capacity or bandwidth, shall be considered an assignment or transfer requiring city approval pursuant to § 115.0082. Transactions between affiliated entities are not exempt from city approval.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
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 franchise grant of authorization.
(B) Construction or operation at an unauthorized location.
(C) Unauthorized substantial transfer of control of the Grantee.
(D) Failure to comply with sections of this chapter regarding sale, transfer or assignment of a telecommunications franchise or system.
(E) Unauthorized sale, assignment or transfer of the Grantee's franchise assets, or a substantial interest in the franchise.
(F) Misrepresentation by or on behalf of a Grantee in any application to the city.
(G) Abandonment of telecommunications facilities in the public rights-of-way.
(H) Failure to relocate or remove facilities as required in this title.
(I) Willful or continued failure to pay taxes, compensation, fees or costs when and as due the city unless subject to a bona fide dispute.
(J) Insolvency or bankruptcy of the Grantee.
(K) Violation of a material provision of this chapter.
(L) Violation of a material term of a franchise agreement.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Pursuant to § 115.084, in the event that the city believes that grounds exist for revocation of a franchise, the city shall give the Grantee written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the Grantee a reasonable period of time not exceeding 30 days to furnish evidence:
(A) That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance.
(B) That rebuts the alleged violation or noncompliance.
(C) That it would be in the public interest to impose some penalty or sanction less than revocation.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
In the event that a Grantee fails to provide evidence reasonably satisfactory to the city as provided in § 115.087, the City Manager or his designee shall refer the apparent violation or non-compliance to the City Council. The City Council shall provide the Grantee with notice and a reasonable opportunity to be heard concerning the matter.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
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. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
All Grantees shall, within 30 days after written demand, reimburse the city for all direct and indirect costs and expenses incurred by the city in connection with any modification, amendment, renewal or transfer of the franchise agreement.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
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 including copies in paper and a computerized format specified by the city.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
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 from such work.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Within ten days of a written request from the city, each Grantee shall furnish the city with information sufficient to demonstrate:
(A) That the Grantee has complied with all requirements of this chapter.
(B) All books, records, maps and other documents, maintained by the Grantee with respect to its facilities within the public rights-of-way shall be made available for inspection by the city at reasonable times and intervals.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
§ 115.103 [Reserved]
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 and is not subject to the limits contained in this chapter.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
(A) Unless otherwise provided in a franchise agreement, in which case such franchise term shall govern.
(B) As compensation for the benefits and privileges under its franchise and in consideration of permission to use the right-of-way of the city, the Grantee shall pay a quarterly franchise fee to the city, through the duration of its franchise, as follows:
(1) The minimum quarterly franchise fee shall be set by resolution of the City Council.
(2) The franchise fee for a telecom-munication utility shall equal a percentage (to be set by resolution of the City Council) of the gross revenue on exchange access services earned by the telecommunications utility within the boundaries of the city. In addition, a telecommunication utility shall pay the fee in this section on telecommunications services which are not local exchange access services.
(3) Except for limited use telecommunication franchise Grantees, the franchise fee shall equal a percent of the Grantee's gross revenues derived from Grantee's provision of telecommunications services and telecommunications facilities within the city. The percentage shall be set by resolution of the council.
(4) A limited use telecommunication franchisee shall pay a fee based on the number of linear feet of right-of-way used by the franchisee. A limited use telecommunication franchisee is defined as one whose franchise limits the amount of linear feet of right-of-way in the city the Grantee may occupy. The fee per linear foot shall be set by resolution of the council.
(5) Grantee shall be considered to be providing telecommunications services or facilities if it sells, leases, resells, or otherwise conveys such services or facilities for consideration, monetary or otherwise.
(6) A Grantee providing resold telecommunications services or facilities shall be entitled to a credit against its franchise fee for an amount equal to a percentage of the price paid for such services or facilities at wholesale. Such percentage shall be set by resolution of the council.
(7) So long as it registers with the city as required in this chapter and pays the fees required for Grantees set forth in this division (A), a reseller may use another person's facilities to engage in telecommunications activities in the right-of-way without obtaining a franchise, providing the reseller does not, either itself or through an affiliate, own or lease, control or manage any facilities in the right-of-way and is not involved in construction or repair of facilities in the right-of-way. For purposes of calculating the fees to be paid by a reseller, the amount of compensation paid by the reseller to the owner or manager of facilities in the right-of-way for the services it resells shall be deducted from the reseller's gross revenues before applying the percentage rates described in division (A) above.
(8) Payment shall be made by each April 25, July 25, October 25 and January 25 for the quarter just ended.
(C) Any Grantee who fails to remit any fee imposed by this chapter within 30 days of the date it is due, shall pay interest at the rate of one percent (1%) per month or fraction thereof on the amount of the fee from the date on which the remittance first became due until paid.
(D) To the extent that federal or state law, or an existing franchise agreement, limits the amount of fees which the city may impose on, or the compensation it may require from a Carrier, nothing in this section shall require the payment of any greater amount, unless and until the federal or state limits are raised, or the franchise agreement expires or is otherwise terminated.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Carriers providing cable service shall be subject to the city's cable franchise requirements governing the provision of cable service. Notwithstanding the foregoing, Carriers providing cable service shall be subject to the requirements of this chapter if they provide telecommunications service or local exchange service.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
§ 115.107 [Reserved]
(A) 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:
(1) Comprehensive general liability insurance with limits not less than $1,000,000 for bodily injury or death to each person; $1,000,000 for property damage resulting from any one accident; and $1,000,000 for all other types of liability.
(2) Automobile liability for owned, non-owned and hired vehicles with a limit of $1,000,000 for each person and $1,000,000 for each accident.
(3) Workers' compensation within statutory limits and employer's liability insurance with limits of not less than $1,000,000.
(4) Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than $1,000,000.
(B) The liability insurance policies required by this section shall be maintained by the Grantee throughout the term of the telecommunications franchise, and such other period of time during which the Grantee is operating without a franchise, or is engaged in the removal of its telecommunications facilities. Each such insurance policy shall contain the following endorsement:
“This policy may not be canceled nor the intention not to renew be stated until 90 days after receipt by the city, by registered mail, of a written notice addressed to the City Manager or his designee of such intent to cancel or not to renew.”
(C) Within 60 days after receipt by the city of such notice, and in no event later than 30 days prior to the cancellation, the Grantee shall obtain and furnish to the city evidence that the Grantee meets requirements of this section.
(D) The insurance policy requirements of this section may be met by a program of self-insurance acceptable to the city.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
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 grant agreement made or entered into pursuant to this chapter.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03
Unless the city otherwise specifically approves an alternative security to assure performance, before a franchise granted pursuant to this chapter is effective, the Grantee shall provide and maintain a performance bond, in form and substance acceptable to the city, as security for the full and complete performance of this chapter, including any costs, expenses, damages or loss the city pays or incurs because of any failure attributable to the Grantee to comply with the codes, ordinances, rules, regulations or permits of the city.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Any franchise granted under this chapter is subject to the provisions of the Constitution and laws of the United States, the State of Oregon, and the ordinances and charter of the city.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
No franchise shall be granted unless the agreement is in writing.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
No franchise granted under this chapter shall confer any exclusive right, privilege or franchise to occupy or use the public rights-of-way of the city for delivery of telecommunications services or any other purposes.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
In the event that federal or state laws, rules or regulations preempt a provision or limit the enforceability of a provision of this chapter, then the provision shall be read to be preempted to the extent and/or the time required by law. In the event such federal or state law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision that had been preempted is no longer preempted, such provision shall return to full force and effect, and shall be binding, without the requirement of further action on the part of the city.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
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. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Any Grantee under this chapter shall comply with all federal and state laws and regulations, including regulations of any administrative agency, as well as all ordinances, resolutions, rules and regulations of the city now in effect or adopted in the future or established during the entire term of any franchise granted under this chapter, which are relevant and relate to the construction, maintenance and operation of a telecommunications system.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Wherever the consent of either the city or of the Grantees under this chapter is specifically required in a franchise granted, such consent will not be unreasonably withheld.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
To the extent that this chapter is not in conflict with and can be implemented with ordinances and franchise agreements in effect as of May 22, 2000 (“pre-existing franchise”), this chapter shall apply to all existing ordinance and franchise agreements for use of the public right-of-way for telecommunications. In the event of a conflict between a term contained in a pre-existing franchise and this chapter, the term of the pre-existing franchise shall govern so long as such pre-existing franchise is effective.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
The city agrees to use its best efforts to preserve the confidentiality of information designated by the Grantee as a trade secret, to the extent permitted by the Oregon Public Records Law.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)
Any person found guilty of violating, disobeying, omitting, neglecting or refusing to comply with any of the provisions of this chapter shall have committed a Class A violation. A separate and distinct offense shall be deemed committed each day on which a violation occurs.
(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)