(A) The minimum standards for commercial activity, operation or service hereinafter set forth have been developed to promote in a reasonable manner the best interest of the public concerning the competent and qualified operation of the Hermiston Municipal Airport.
(B) These standards shall be administered on fair and reasonable terms in accordance with the provisions of Section 308 of the Federal Aviation Act; Title VI, of the Civil Rights Act of 1964; Part 21, of Department of Transportation Regulations; FAA Advisory Circular, 150/5190-1A, dated December 16, 1985; and FAA Advisory Circular 150/5190-1, dated September 2, 1966.
(C) Any standard which a tenant operator is required to meet must be uniformly applicable to all operators seeking the same franchise privileges, and the basic premises herein contained are applicable to all.
(Ord. 1034, passed 2-14-77)
(A) The Council may in its discretion waive any portion of these rules and regulations for the benefit of a commercial airline licensed by the CAB, any governmental agency, or a person performing nonprofit public service performing air search and rescue operations, or engaging in fire fighting operations.
(B) The Council may consider an application by an individual for a license to perform in one of the following functions and not connected with a fixed base operation when in the Council's discretion the service is necessary for the convenience of the public:
(1) Special flight instructor;
(2) Ground school instructor;
(3) Aircraft mechanic;
(4) Avionics or other specialist technician;
(5) Agricultural applicator pilot.
(C) The Council may in its discretion waive any portion of these rules and regulations for the benefit of non-aviation-related activities and developments on airport lands.
(Ord. 1034, passed 2-14-77)
(A) The rates and charges for any and all activities and services of operators shall be determined by the operators, subject to the approval of the City Council, and subject, further, to the requirement that all rates or charges shall be reasonable and be equally and fairly applied to all users of the services.
(B) All fixed base operators shall at their own expense pay all taxes and assessments against any buildings or other structures placed on the premises by them as well as all taxes and assessments against the personal property used by them in their operations.
(Ord. 1034, passed 2-14-77)
All operators shall provide and pay for all lights, gas, electrical current, water, sewer charges and garbage collection charges used or incurred anywhere in or about the leased premises and shall pay the charges made therefor by the suppliers thereof promptly when due.
(Ord. 1034, passed 2-14-77) Penalty, see § 110.99
All operators at the airport shall be full-time, financially sound and progressive business enterprises, with adequately manned and equipped facilities, including ample office facilities, and who observe normal or specifically required business hours.
(Ord. 1034, passed 2-14-77) Penalty, see § 110.99
All operators shall abide by and comply with all state, county and city laws and ordinances, the rules and regulations of the city and the rules and regulations of the State and Federal Aviation Administration.
(Ord. 1034, passed 2-14-77) Penalty, see § 110.99
All contracts and leases between operators and the city shall be subordinate to the provisions of any existing or future agreement between the city and the United States, relative to the operation or maintenance of the airport, the execution of which has been or may be required as a condition precedent to the expenditure of federal funds for the development of the airport properties.
(Ord. 1034, passed 2-14-77)
(A) No fixed base operator shall sublease or sublet any premises leased by the operator from the city, or assign any lease without the prior written approval of the City Council; and any subletting or assignment shall be subject to all of the minimum standards herein set forth.
(B) In the event the lessee sublets any portion of his lease, the sublease must agree to assume the full obligations of the lease as set out herein and must agree to fully cooperate with the city in seeing that these standards are complied with. The sublease shall immediately comply with any reasonable request or direction of the city as it relates to the enforcement of these standards.
(Ord. 1034, passed 2-14-77)
Fixed base operators shall have the right, in common with others authorized so to do, to use common areas of the airport, including runways, taxiways, aprons, roadways, floodlights, landing lights, signals and other conveniences for the takeoff, flying and landing of aircraft of lessee.
(Ord. 1034, passed 2-14-77)
(A) Lessees will, at all times during the continuance of the term of the lease and any renewal or extension thereof, conduct, operate and maintain for the benefit of the public the fixed base operation provided for and described therein, and all aspects and parts and services thereof as defined and set forth, and will make all services available to the public and that they will devote their best efforts for the accomplishment of the purposes, and that they will at all times make charges to patrons and customers for all merchandise or materials and services furnished or rendered, but that they will refrain from imposing or levying excessive or otherwise unreasonable charges or fees for any facilities or services.
(B) Notwithstanding anything contained in a lease that may be or appear to the contrary, it is expressly understood and agreed that the rights granted thereunder are nonexclusive, and the lessor reserves the right to grant similar privileges to another operator or operators on other parts of the airport when, in its sole discretion the City Council feels a need exists.
(Ord. 1034, passed 2-14-77) Penalty, see § 110.99
The city reserves the right to take any actions it considers necessary to protect the aerial approaches to the airport against obstructions, together with the right to prevent any fixed base operator from erecting, or permitting to be erected, any building, sign or other structure on the airport which, in the opinion of the city, would limit the usefulness of the airport or constitute a hazard to aircraft.
(Ord. 1034, passed 2-14-77)
The lessee shall remove from the airport, or otherwise dispose of in a manner approved by the City Manager, all garbage, debris and other waste material (whether solid or liquid) arising out of its occupancy of the premises or out of its operations. The lessee shall keep and maintain his leased premises in a neat and orderly manner; lessee shall keep the grass cut and the buildings painted. Any garbage debris waste which may be temporarily stored in the open shall be kept in suitable garbage or waste receptacles, the same to be made of metal and equipped with tight-fitting covers and to be of a design safely and properly to contain whatever may be placed therein and all in accordance with city ordinances. The lessee shall use extreme care when effecting removal of all waste.
(Ord. 1034, passed 2-14-77) Penalty, see § 110.99
The City Council reserves the right to further develop or improve all areas of the airport as it sees fit, regardless of the desires or views of any fixed base operators, and without interference or hindrance from any fixed base operators.
(Ord. 1034, passed 2-14-77)
(A) A Fixed Base Operator is defined as any person, firm or corporation performing any of the functions or furnishing any of the services as hereinafter set out for fixed base operators at the Hermiston Municipal Airport . No person, firm or corporation shall engage in any commercial activity as a fixed base operator as herein defined unless the same is done in full compliance with the standards, rules and regulations herein set forth.
(B) All activities, operations or services provided on the airport property for compensation shall be considered commercial and shall meet the standards as set forth in this section.
(C) Only fixed base operators shall conduct a commercial activity on the airport. The following sections have been set forth as possible services.
(Ord. 1034, passed 2-14-77)
(A) The sales, rental and leasing of aircraft, accessories and supplies.
(B) Flight training, ground school (instruction) and related operations.
(C) Charter and/or air taxi service.
(D) Maintenance activities to include repair, overhaul, rebuilding and modification of aircraft, engines and accessories.
(E) Line services to include aviation fuel and oil sales and other miscellaneous service activities.
(F) Provide hangar facilities and non-public tie down areas.
(Ord. 1034, passed 2-14-77)
(A) Aerial photography.
(B) Air ambulance service.
(C) Agni-chemical spraying.
(D) Radio and/or instrument repair.
(E) Propeller and/or avionics shop.
(F) Other specialty services not listed.
An applicant desiring a lease or license to provide a commercial service at the airport shall submit a written application to the City Council containing all the pertinent information as set forth in Appendix (A), attached to Ordinance 1034, titled “Application for Fixed Base Operator,” six months prior to the desired occupancy date. The Council within 90 days shall arrive at some contract agreement or reject the application.
(A) Special provisions.
(1) The Council may grant licenses for special services.
(2) Land areas and/or facilities used or needed shall be by lease or license only and shall not be transferable unless authorized in writing by the Council.
(3) All proposals for fixed base operations shall include a sufficient land lease area to accommodate the required services and to provide for suitable buildings in which to conduct proposed activities.
(4) All buildings or structures used by fixed base operators are considered “public buildings” and shall comply with state and local laws and codes and regulations pertaining to their construction.
(5) An applicant shall specify each and every activity, operation or service to be provided as listed in §§ 110.21 and 110.22; and he shall conduct only those activities, operations or services for which he qualifies and which are specified in his lease and/or license.
(B) The intent of the city in granting a lease or license is that no fixed base operator shall have any preferential advantage over another fixed base operator, and that the true variable of success shall be good and sound business practice.
(Ord. 1034, passed 2-14-77) Penalty, see § 110.99
When, and in the manner as authorized by the City Council, a fixed base operator shall at his own expense provide, construct, install, equip and maintain all utilities, buildings, structures, ramps, tie downs and other facilities and improvements used for his own business. The city may at its discretion provide assistance for the development of the operational area and also lease any existing city-owned structures as it sees fit.
(Ord. 1034, passed 2-14-77)
Each fixed base operator shall, upon being authorized by the Council, complete the structures, facilities and/or improvements necessary for his operation or activity within a time limit as included and set forth in his lease or license.
(Ord. 1034, passed 2-14-77) Penalty, see § 110.99
Applicant shall satisfy the City Council of his ability to perform the services to be provided in the application and shall be stipulated in the lease or license.
(Ord. 1034, passed 2-14-77)
(A) The fixed base operator shall secure minimum public liability insurance coverage from an acceptable insurance company as follows:
(1) Bodily injury: $250,000 each person or $500,000 each occurrence
(2) Property damage: $200,000 each occurrence
(B) The insurance coverage shall name the city as a co-insured with the fixed base operator. The policy or policies shall be maintained in full force and effect during all terms of existing leases, contracts or agreements and renewals or extensions of same. A copy of the policy shall be delivered to the Finance Director/Recorder. Each policy shall contain a provision that the policy may not be canceled without at least ten days prior notice in writing to the City Manager.
(Ord. 1034, passed 2-14-77)
At all times during the term of a lease, lessor shall insure, at lessor's own cost or expense, all hangars and structures on the leased ground against any loss or damage by fire, windstorm, hail, explosion or smoke with a responsible insurance company which is acceptable to the City Council.
(Ord. 1034, passed 2-14-77) Penalty, see § 110.99
Lessee shall keep accurate records and book of accounts on the operation of its facility, and the records and books shall be open to examination by the City Council or its authorized representative.
(Ord. 1034, passed 2-14-77)
The leased area facilities and structures shall be kept in an acceptable state of repair and maintained at all times. Lessor shall be responsible for the structural supports and exterior walls of the facilities which are owned by the city; lessee shall be responsible for all else.
(Ord. 1034, passed 2-14-77)
The Council in its discretion shall have the right to terminate any lease, license or agreement authorizing the fixed base operator to conduct any service or activity and to revoke a lease on any land or facility upon the airport for any cause or reason provided by these rules or by law, and in addition, upon the happening of one or more of the following:
(A) Filing a petition of voluntary or involuntary bankruptcy by the operator;
(B) The making by the fixed base operator of any general assignment for the benefit of creditors;
(C) The abandonment or discontinuance of any permitted operation at the airport by the fixed base operator or the failure to conduct any service, operation or activity which the lessee or licensee has agreed to provide under the terms of his contract. If this condition exists for a period of ten days without prior approval of the Council, it will constitute an abandonment of the land or facilities and the lease and/or license shall become null and void;
(D) The failure of the fixed base operator to promptly pay to the city, when due, all rents, charges, fees or other payments which are payable to the city in accordance with applicable leases or licenses;
(E) The failure of the fixed base operator to remedy any default or breach or violation of these rules and regulations by him or his employees within 30 days after notice from the City Manager;
(F) Violates any of these rules and regulations or fails to maintain current FAA licenses required for his operation;
(G) Supplies the city with false or misleading information or misrepresents any material facts on his application or documents, or in statements to or before the Council, or fails to make full disclosure on his financial statement or other required documents; and
(H) Operates or allows any employee to operate an aircraft or equipment in a dangerous or hazardous manner which may endanger the public in any manner.
(Ord. 1034, passed 2-14-77) Penalty, see § 110.99
Fixed base operators and/or employees shall be competent and shall hold all current valid certificates, permits, licenses or other authorities required by the CAB and the FAA, including any required air taxi permits and public utility commission certificates, and shall not utilize any pilot in any aircraft operations who does not hold valid and current certificates from CAB and FAA, nor shall they allow any aircraft to be flown which does not have a current and valid license and permit.
(Ord. 1034, passed 2-14-77) Penalty, see § 110.99
All complaints against any fixed base operator or his employees for violation of these rules and regulations shall be in writing and signed by the complainant and filed with the Finance Director/Recorder.
(Ord. 1034, passed 2-14-77)
To the extent necessary to protect the rights and interests of the city or to investigate the terms of these rules and regulations, the City Manager or his authorized representative shall have the right to inspect, during reasonable hours, all aircraft, structures, premises, facilities and improvements on the airport, preferably in the presence of the lessee or owner.
(Ord. 1034, passed 2-14-77)
Any person who violates a provision of this chapter commits a Class B violation.
(Ord. 1034, passed 2-14-77; Am. Ord. 1549, passed 12-10-84; Am. Ord. 1632, passed 6-22-87)
(Ord. 1034, passed 2-14-77)
For the purpose of this chapter, the following definition shall apply unless the context clearly indicates or requires a different meaning.
(Ord. 1533, passed 9-10-84)
(A) No property owner or householder shall hold or conduct more than one household sale or garage sale on his property or at his residence in any one calendar year quarter, and the sale shall not be conducted for a longer period than four consecutive days.
(B) Calendar year quarters as herein used are:
(1) First quarter: January 1 through March 31;
(2) Second quarter: April 1 through June 30;
(3) Third quarter: July 1 through September 30; and
(4) Fourth quarter: October 1 through December 31.
(Ord. 1533, passed 9-10-84)
Household and garage sales may be advertised only by signs on the property of the property owner or resident or by radio, television and newspaper advertising. No off-premise signs are permitted.
(Ord. 1533, passed 9-10-84) Penalty, see § 111.99
The following are exempt from the provisions of this chapter:
(A) The offering for sale of one item by public display with a sign indicating the item is for sale, and the sale of more than one individual item not offered for sale by public display or by signs concerning a sale or place of sale; and
(B) Sales commonly referred to as “rummage sales,” conducted by members of fraternal, civic, patriotic, religious, service, charitable, educational organizations.
(Ord. 1533, passed 9-10-84)
The following are exempt from the provisions of this chapter:
(A) The offering for sale of one item by public display with a sign indicating the item is for sale, and the sale of more than one individual item not offered for sale by public display or by signs concerning a sale or place of sale; and
(B) Sales commonly referred to as “rummage sales,” conducted by members of fraternal, civic, patriotic, religious, service, charitable, educational organizations.
(Ord. 1533, passed 9-10-84)
No permit, permit fee or notice to the city is required for holding the activities as permitted herein.
(Ord. 1533, passed 9-10-84)
Property owners or householders presumed to be in violation of this chapter shall be served with a copy of this chapter at least 96 hours before any enforcement action is commenced; however, the property owner or householder, once served, shall be presumed to be advised of the existence of this chapter; and any further presumed violations by a person may cause enforcement action without a notice.
(Ord. 1533, passed 9-10-84)
Any person, persons, firms, organizations, associations or corporations in violation hereof commits a Class A violation. Each day will be a separate violation.
(Ord. 1533, passed 9-10-84)
This chapter shall be known as the Transient Room Tax Ordinance.
(Ord. 1719, passed 3-11-91)
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
(Ord. 1719, passed 3-11-91; Am. Ord. 1971, passed 10-12-98)
(A) Every person engaging or about to engage in business as an operator of a hotel in this city shall register with the Finance Director/Recorder on a form provided by him.
(B) Operators engaged in business at the time this chapter is adopted must register not later than 30 calendar days after passage of this chapter. Operators starting business after this chapter is adopted must register within 15 calendar days after commencing business. The privilege of registration after the date of imposition of the tax shall not relieve any person from the obligation of payment or collection tax regardless of registration.
(C) Registration shall set forth the name under which an operator transacts or intends to transact business, the location of his place or places of business and other information to facilitate the collection of the tax as the Finance Director/Recorder may require. The registration shall be signed by the operator. The Finance Director/Recorder shall, within ten days after registration, issue without charge a certificate of authority to each registrant to collect the tax from the occupant, together with a duplicate thereof for each additional place of business for each registrant.
(D) Certificates shall be non-assignable and non-transferable and shall be surrendered immediately to the Finance Director/Recorder upon the cessation of business at the location named or upon its sale or transfer. Each certificate and duplicate shall state the place of business to which it is applicable and shall be prominently displayed therein so as to be seen and come to the notice readily of all occupants and persons seeking occupancy.
(E) The certificate shall, among other things, state the following:
(1) The name of the operator;
(2) The address of the hotel;
(3) The date upon which the certificate was issued;
(4) This “Transient Occupancy Registration Certificate” signifies that the person named on the face hereof has fulfilled the requirements of the “Transient Room Tax Ordinance” of the city by registration with the Finance Director/Recorder for the purpose of collection from transients the room tax imposed by the city and remitting the tax to the Finance
(Ord. 1719, passed 3-11-91)
(A) For the privilege of occupancy in any hotel, on and after April 1, 2003, each transient shall pay a tax in the amount of 8% of the rent charged on each room, rental space, or other occupancy defined in this chapter for each day of occupancy, provided, however, the occupancies rented for seven consecutive days to the same individual or party shall pay a rate of 2½% of the rent charged per night of occupancy up to the 30-day limitation of this chapter. The tax constitutes a debt owed by the transient to the city which is extinguished only by payment to the operator or to the city. The transient shall pay the tax to the operator of the hotel at the time the rent is paid. The operator shall enter the tax on his records when rent is collected if the operator keeps his records on the cash accounting basis and when earned if the operator keeps his records on the accrual accounting basis.
(B) If rent is paid in installments, a proportionate share of the tax shall be paid by the transient to the operator with each installment. If for any reason the tax due is not paid to the operator of the hotel, the Finance Director/Recorder may require that the tax shall be paid directly to the city. In all cases, the rent paid or charged for occupancy shall exclude the sale of any goods, services and commodities, other than the furnishing of rooms, accommodations, and parking space in mobile home parks or trailer parks.
(C) Rates established herein shall not be increased for at least five years from effective date hereof.
(Ord. 1719, passed 3-11-91; Am. Ord. 1850, passed 8-8-94; Am. Ord. 2067, passed 1-27-03)
(A) Every operator renting rooms in this city, the occupancy of which is not exempted under the terms of this chapter, shall collect a tax from the occupant. The tax collected or accrued by the operator constitutes a debt owed by the operator to the city.
(B) In all cases of credit or deferred payment of rent, the payment of tax to the operator may be deferred until the rent is paid, and the operator shall not be liable for the tax until credits are paid or deferred payments are made.
(C) The Finance Director/Recorder shall enforce provisions of this chapter and shall have the power to adopt rules and regulations not inconsistent with this chapter as may be necessary to aid in the enforcement.
(D) For rent collected on portions of a dollar, fractions of a penny of tax shall not be remitted.
(Ord. 1719, passed 3-11-91)
Each operator shall collect the tax imposed by this chapter at the same time as the rent is collected from every transient. The amount of tax shall be separately stated upon the operator's records, and any receipt rendered by the operator. No operator of a hotel shall advertise that the tax or any part of the tax will be assumed or absorbed by the operator, or that it will not be added to the rent, or that, when added, any part will be refunded, except in the manner provided by this chapter.
(Ord. 1719, passed 3-11-91) Penalty, see § 112.99
(A) The tax imposed by this chapter shall be paid by the transient to the operator at the time that rent is paid. All amounts of the taxes collected by any operator accrue and are payable to the Finance Director/Recorder on a quarterly basis. The taxes accrue on the last day of the quarter and are delinquent 30 days thereafter.
(B) On or before the thirtieth day following each quarter of collection a return for that quarter's tax shall be filed with the Finance Director/Recorder. The return shall be filed in the form as the Finance Director/Recorder may prescribe by every operator liable for payment of tax.
(C) Returns shall show the amount of tax collected or otherwise due for the related period. The Finance Director/Recorder may require returns to show the total rentals upon which tax was collected or otherwise due, and an explanation in detail of any discrepancy between reported rentals and amounts tendered, the amount of rents exempt, if any, and description of units rented for periods of seven consecutive days, or for more than 30 days.
(D) The person required to file the return shall deliver the return, together with the remittance of the amount of tax due, to the Finance Director/Recorder at his office either by personal delivery or by mail. If the return is mailed, the postmark shall be considered the date of delivery for determining delinquencies.
(E) For good cause, the Finance Director/Recorder may extend, but not to exceed, one month the time for making any return or payment of tax. No further extension shall be granted, except by action of the City Council as provided herein. Any operator to whom an extension is granted shall pay interest at the rate of 1% per month on the amount of tax due without proration for a fraction of a month. If a return is not filed, and the tax and interest due is not paid by the end of the extension granted, then the interest shall become a part of the tax for computation of penalties described elsewhere in this chapter.
(Ord. 1719, passed 3-11-91)
(A) Original delinquency. Any operator who has not been granted an extension of time for remittance of tax due and who fails to remit any tax imposed by this chapter prior to delinquency shall pay a penalty of 10% of the amount of the tax due in addition to the amount of the tax.
(B) Continued delinquency. Any operator who has not been granted an extension of time for remittance of tax due, and who failed to pay any delinquent remittance on or before a period of 30 days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of 15% of the amount of tax due plus the amount of the tax and the 10% penalty first imposed.
(C) Fraud. If the Finance Director/Recorder determines that the nonpayment of any remittance due under this chapter is due to fraud or intent to evade the provisions thereof, a penalty of 25% of the amount of the tax shall be added thereto in addition to the penalties stated in divisions (A) and (B) above of this section.
(D) Interest. In addition to the penalties imposed, any operator who fails to remit any tax imposed by this chapter shall pay interest at the rate of .5% per month or fraction thereof without proration for portions of a month, on the amount of the tax due, exclusive of penalties, from the date on which the remittance first became delinquent until paid.
(E) Penalties merged with tax. Every penalty imposed and the interest as accrues under the provisions of this section shall be merged with and become a part of the tax herein required to be paid.
(F) Petition for waiver. Any operator who fails to remit the tax herein levied within the time herein stated shall pay the penalties herein stated provided, however, the operator may petition the City Council for waiver and refund of the penalty or any portion thereof, and the Council may, if a good and sufficient reason is shown, waive and direct a refund of the penalty or any portion thereof.
(Ord. 1719, passed 3-11-91)
(A) Deficiency determination. If the Finance Director/Recorder determines that the returns are incorrect, he may compute and determine the amount required to be paid upon the basis of the facts contained in the return or returns or upon the basis of any information within his possession or that may come into his possession. One or more deficiency determinations may be made of the amount due for one, or more than one period, and the amount so determined shall be due and payable immediately upon service of notice as herein provided after which the amount determined is delinquent. Penalties on deficiencies shall be applied as set forth in ' 112.08.
(1) In making a determination the Finance Director/Recorder may offset overpayment if any, which may have been previously made for a period or periods, against any underpayment for a subsequent period or periods, or against penalties, and interest, on the underpayment. The interest on underpayment shall be computed in the manner set forth in ' 112.08.
(2) The Finance Director/Recorder shall give to the operator or occupancy a written notice of his determination. The notice may be served personally or by mail; if by mail, the notice shall be addressed to the operator at his address as it appears in the records of the Finance Director/Recorder. In case of service by mail or any notice required by this chapter the service is complete at the time of deposit in the United States Post Office.
(3) Except in the case of fraud, intent to evade this chapter or authorized rules and regulations, every deficiency determination shall be made and notice thereof mailed within three years after the last day of the month following the close of the monthly period for which the amount is proposed to be determined or within three years after the return is filed, whichever period expires the later.
(4) Any determination shall become due and payable immediately upon receipt of notice and shall become final within ten days after the Finance Director/Recorder has given notice thereof, provided, however, the operator may petition redemption and refund if the petition is filed before the determination becomes final as herein provided.
(B) Fraud, refusal to collect, evasion. If any operator shall fail or refuse to collect the tax or to make, within the time provided in this chapter, any report and remittance of the tax or any portion thereof required by this chapter, or makes a fraudulent return or otherwise wilfully attempts to evade this chapter, the Finance Director/Recorder shall proceed in the manner he may deem best to obtain facts and information on which to base an estimate of the tax due. As soon as the Finance Director/Recorder has determined the tax due that is imposed by this chapter from any operator who has failed or refused to collect the same and to report and remit the tax, he shall proceed to determine and assess against the operator the tax, interest, and penalties provided for by this chapter. In case a determination is made, the Finance Director/Recorder shall give a notice in the manner aforesaid of the amount so assessed. The determination and notice shall be made and mailed within three years after discovery by the Finance Director/Recorder of any fraud, intent to evade or failure or refusal to collect the tax, or failure to file return. Any determination shall become due and payable immediately upon receipt of notice and shall become final within ten days after the Finance Director/Recorder has given notice thereof, provided, however, the operator may petition redemption and refund if the petition is filed before the determination becomes final as herein provided.
(C) Operator delay. If the Finance Director/ Recorder believes that the collection of any tax or any amount of tax required to be collected and paid to the city will be jeopardized by delay, or if any determination will be jeopardized by delay, he shall thereupon make a determination of the tax or amount of tax required to be collected, noting the fact upon the determination. The amount so determined as herein provided shall be immediately due and payable, and the operator shall immediately pay same determination to the Finance Director/Recorder after service of notice thereof, provided, however, the operator may petition, after payment has been made, for redemption and refund of determination, if the petition is filed within ten days from the date of service of notice by the Finance Director/Recorder.
(Ord. 1719, passed 3-11-91)
(A) Any person against whom a determination is made under 112.09 or any person directly interested may petition for a redetermination and redemption and refund within the time required in 112.09 hereof. If a petition for redetermination and refund is not filed within the time required in 112.09, the determination becomes final at the expiration of the allowable time.
(B) If a petition for redetermination and refund is filed within the allowable period, the Finance Director/Recorder shall reconsider the determination and if the person has so requested in his petition, shall grant the person an oral hearing and shall give him ten days notice of the time and place of the hearing. The Finance Director/Recorder may continue the hearing from time to time as may be necessary.
(C) The Finance Director/Recorder may decrease or increase the amount of the determination as a result of the hearing and if any increase is determined the increase shall be payable immediately after the hearing.
(D) The order or decision of the Finance Director/Recorder upon a petition for redetermination of redemption and refund becomes final ten days after service upon the petitioner of notice thereof, unless appeal of the order or decision is filed with the Council within the ten days after service of the notice.
(E) No petition for redetermination of redemption and refund or appeal therefrom shall be effective for any purpose unless the operator has first complied with the payment provisions hereof.
(Ord. 1719, passed 3-11-91)
(A) The tax imposed by this chapter together with the interest and penalties herein provided and the filing fees paid to the Clerk of Umatilla County, the advertising costs which may be incurred when same becomes delinquent as set forth in this chapter shall be and, until paid, remain a lien from the date of its recording with the Clerk of Umatilla County, Oregon. The lien shall be superior to all subsequently recorded liens on all tangible personal property used in the hotel of an operator within Hermiston and may be foreclosed on and the necessary property sold to discharge the lien, if the lien has been recorded.
(B) Personal property subject to the lien may be foreclosed in the same manner as a nonpossessory chattel lien for labor or material expended on chattel in ORS Chapter 87. When the Finance Director/ Recorder files a notice of claim of lien with the County Recorder, the Finance Director/Recorder or deputy shall send forthwith a copy of the notice to the operator and the owner of the chattel (if different from the operator) by certified mail at their last‑known address.
(C) At any time within three years after any tax or any amount of tax required to be collected becomes due and payable, or at any time within three years after any determination becomes final, the Finance Director/Recorder may bring an action in the courts of this state, or any other state, or of the United States, in the name of the city, to collect the amount delinquent, together with penalties and interest.
(D) In suits to foreclose the lien the court shall, upon entering judgment, allow as part of the lien the moneys paid for the filing or recording of the lien. The court shall also allow reasonable attorney fees at trial and on appeal to the prevailing party.
(E) Any lien for taxes as shown on the records of the proper county official shall, upon the payment of all taxes, penalties, and interest thereon, be released by the Finance Director/Recorder when the full amount determined to be due has been paid to the city and the operator or person making the payment shall receive a receipt therefor stating that the full amount of taxes, penalties, and interest thereon have been paid and that the lien is thereby released and the record of lien is satisfied.
(Ord. 1719, passed 3-11-91; Am. Ord. 2162, passed 10-26-09)
(A) Operators' refunds. Whenever the amount of any tax, penalty, or interest has been paid more than once or has been erroneously or illegally collected or received by the Finance Director/ Recorder under this chapter, it may be refunded, provided a verified claim in writing therefor, stating the specific reason upon which the claim is founded, is filed with the Finance Director/Recorder within three years from the date of payment. The claim shall be made on forms provided by the Finance Director/ Recorder. If the claim is approved by the Finance Director/Recorder, the excess amount collected or paid may be refunded or may be credited on any amounts then due and payable from the operator from whom it was collected or by whom paid and the balance may be refunded to each operator, his administrators, executors or assignees.
(B) Transient refunds. Whenever the tax required by this chapter has been collected by the operator, and deposited by the operator with the Finance Director/Recorder, and it is later determined that the tax was erroneously or illegally collected or received by the Finance Director/Recorder, it may be refunded by the Finance Director/Recorder to the transient, provided a verified claim in writing therefor, stating the specific reason on which the claim is founded, is filed with the Finance Director/ Recorder within three years from the date of payment.
(Ord. 1719, passed 3-11-91)
No tax imposed under this chapter shall be imposed upon:
(A) Any occupant for more than 30 successive calendar days; (a person who pays for lodging on a monthly basis, irrespective of the number of days in the month, shall not be deemed a transient).
(B) Any occupant whose rent is of a value less than $3 per day.
(C) Any person who rents a private house, vacation cabin, or like facility from any owner who rents the facilities incidentally to his own use thereof.
(D) Any occupant whose rent is paid for a hospital room or to a medical clinic, convalescent home or home for aged people, to a public institution owned and operated by a unit of government, to a shelter home, half‑way house or other rehabilitation facility.
(Ord. 1719, passed 3-11-91)
(A) Distribution.
(1) Five‑eighths of the taxes remitted to the city, less 5% retained by the operator, shall be distributed as follows:
(a) 45% to improve, maintain and operate the Hermiston Community Center;
(b) 15% for recreation and recreation‑related programs and activities and park improvements administered by the advisory committee pursuant to ' 112.27(B);
(c) 25% to offset costs of programs such as the senior citizen taxi program, economic development, streets maintenance and similar programs funded from the general fund; and
(d) 15% for city parks and recreation development administered by the Parks and Recreation Committee pursuant to ' 112.27(D). The proceeds of the tax for parks and recreation development shall accumulate in a reserve account and may not be diverted or utilized in any other manner.
(2) Three‑eighths of the taxes remitted to the city, less 5% retained by the operator, shall be distributed to offset the cost of constructing a community outdoor swimming pool, including the retirement of any bonds issued for its construction.
(B) Records required from operators; forms. Every operator shall keep guest records of room sales and accounting books and records of the room sales. All records shall be retained by the operator for a period of three years and six months after they come into being.
(C) Collection fee. Every operator liable for collection and remittance of the tax imposed by this chapter may withhold 5% of the net tax herein collected to cover the operator's expenses in collection and remittance of the tax.
(D) Examination of records; investigations. The Finance Director/Recorder or any person authorized in writing by him may examine during normal business hours, the books, papers, and accounting records relating to room sales of any operator after notification to the operator liable for the tax and may investigate the business of the operator in order to verify the accuracy of any return made, or if no return is made by the operator, to ascertain and determine the amount required to be paid.
(E) Confidential character of information obtained; disclosure unlawful. It shall be unlawful for the Finance Director/Recorder or any person having an administrative or clerical duty under the provisions of this chapter to make known in any manner whatever the business affairs, operations, or information obtained by an investigation of records and equipment of any person required to obtain a transient occupancy registration certificate, or pay a transient occupancy tax, or any other person visited or examined in the discharge of official duty, or the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth in any statement or application, or to permit any statement or application, or copy of either, or any book containing any abstract or particulars thereof to be seen or examined by any person. Provided that nothing in this subsection shall be construed to prevent:
(1) The disclosure to, or the examination of records and equipment by another city official, employee, or agent for collection of taxes for the sole purpose of administering or enforcing any provisions of this chapter; or collecting taxes imposed hereunder.
(2) The disclosure after the filing of a written request to that effect, to the taxpayer himself, receivers, trustees, executors, administrators, assignees, and guarantors, if directly interested, of information as to any paid tax, any unpaid tax or amount of tax required to be collected, or interest, and penalties; further provided, however, that the City Attorney approves each disclosure and that the Finance Director/Recorder may refuse to make any disclosure referred to in this division when in his opinion the public interest would suffer thereby.
(3) The disclosure of the names and addresses of any persons to whom transient occupancy registration certificates have been issued.
(4) The disclosure of general statistics regarding taxes collected or business done in the city.
(Ord. 1719, passed 3-11-91; Am. Ord. 1766, passed 5‑11‑92; Am. Ord. 1850, passed 8-8-94; Am. Ord. 2056, passed 6‑10‑02; Am. Ord. 2067, passed 1‑27‑03)
(A) Any dispute in the amount of taxes due, refunds, or other provisions of this chapter, may be filed with the Finance Director/Recorder. If not satisfied by the Finance Director/Recorder, the operator may appeal the decision of the Finance Director/Recorder to the City Manager, and if not satisfied by the Manager, to the City Council.
(B) The Council, acting as the review authority for disputes, may:
(1) Hear and determine appeals of decisions of the personnel of the city, prescribe the forms, rules and regulations relating to appeals, and take other actions consistent with the appeal function. In reviewing a decision or dispute the Council may take evidence and make an investigation. The Council shall give notice of determinations and shall file a certified copy of each determination with the Finance Director/Recorder. A determination of the Council becomes final after 20 days and becomes due, subject to interest and penalties, and enforceable by the city in the same manner as an order or decision of the Finance Director/Recorder as described herein.
(2) Approve, modify or disapprove all forms, rules and regulations prescribed by the Finance Director/Recorder if the forms, rules and regulations are challenged in the administration and enforcement of this chapter.
(3) Hear and determine protests made to a form, rule or regulation approved or prescribed by the Finance Director/Recorder.
(4) Prescribe rules for extensions and, for good cause, grant extensions of time in excess of one month for filing a return or paying the tax.
(5) Make investigations regarding imposition and administration of the tax and report findings publicly; assist in directing enforcement actions; and determine the necessity to amend or alter this chapter.
(6) Any other duties not specifically enumerated herein which are consistent with this chapter.
(Ord. 1719, passed 3-11-91)
(A) The city shall receipt for the proceeds of the tax in the ATransient Room Tax Fund.@
(B) The Council shall appoint an advisory committee consisting of a motel operator, a member of the Parks and Recreation Committee, a representative of the Chamber of Commerce, a member of the Council and one citizen at large not affiliated with any of the organizations potentially funded through the proceeds of the tax, to consider potential projects eligible for funding from the portion of the tax designated for recreation and recreation‑related programs and activities and park improvements in 112.25(A)(2). Committee members shall be appointed in accord with the charter of the city and rules of the Council.
(C) Advisory committee members will be appointed for three‑year staggered terms, and may be any individual dwelling within the boundaries of Hermiston School District 8R. The type of projects, method of administration, and similar matters shall be established by the Committee, with the advice and consent of the City Council. The Committee shall recommend annual appropriations to the City Manager and the Council. The proceeds accounted in this fund may not be expended for any project until the Committee and the Council have agreed on the project and the amounts to be expended. Should the Committee and the Council fail to agree, the proceeds of the tax shall continue to accumulate in this account and may not be diverted or utilized in any other manner.
(D) Pursuant to 112.25(A)(4), the Parks and Recreation Committee shall act as the advisory committee for parks and recreation development. The Parks and Recreation Committee shall recommend types of projects to be funded to the City Manager and Council. The proceeds accounted in this fund may not be expended for any project until the Parks and Recreation Committee and Council have agreed on the project and the amount to be expended. Should the Parks and Recreation Committee and the Council fail to agree, the proceeds of the tax for parks and recreation development shall continue to accumulate in this account and me not be diverted or utilized in any other matter.
(Ord. 1719, passed 3-11-91; Am. Ord. 1766, passed 5-11-92; Am. Ord. 1850, passed 8-8-94; Am. Ord. 2056, passed 6-10-02)
It is unlawful for any operator or other person so required to fail or refuse to register as required herein, or to furnish any return required to be made, or fail or refuse to furnish a supplemental return or other data required by the Finance Director/Recorder or to render a false or fraudulent return. No person required to make, render, sign, or verify any report shall make any false or fraudulent report, with intent to defeat or evade the determination of any amount due required by this chapter.
(Ord. 1719, passed 3-11-91) Penalty, see ' 112.99
Anyone who fails to register pursuant to this chapter commits a Class A violation for each continuing day of violation, and in addition is subject to the penalties assessed for non-payment as set forth in this chapter.
(Ord. 1719, passed 3-11-91; Am. Ord. 1976, passed 10-26-98)
Any person, firm, or corporation conducting within the city the business of storing, wrecking, dismantling or selling any used article, shall confine the business within a building or within a fenced enclosure, the fence to be substantially constructed on all open sides or ends of the premises, to a height of at least seven feet above the ground, and without openings or apertures, excepting necessary gateways or doors for ingress or egress, and which gates and doors in the fence shall be kept closed when not in use for ingress or egress.
(Ord. 355, passed 6-12-57) Penalty, see § 113.99
No secondhand object belonging to or under control of the person, firm or corporation conducting business shall be placed in public view outside of the building or fenced enclosure where the business is conducted.
(Ord. 355, passed 6-12-57) Penalty, see § 113.99
Every person, firm or corporation violating the provisions of this chapter commits a Class A offense and may be liable for the costs of prosecution. Every day that a failure to comply with this chapter shall continue shall constitute a separate offense.
(Ord. 355, passed 6-12-57; Am. Ord. 1632, passed 6-22-87)
For the purpose of this chapter, the following definition shall apply unless the context clearly indicates or requires a different meaning.
(Ord. 299, passed 1-20-54)
It shall be unlawful for any person to act as solicitor within the meaning and application of this chapter, unless he or his employer shall have first secured a license therefor in the manner provided by this chapter.
(Ord. 299, passed 1-20-54) Penalty, see § 114.99
The license fees for solicitors hereunder shall be as established by resolution of the City Council. Fees are to be charged on a calendar year basis, payable in advance. Fees as stated above apply to one solicitor from each firm making application with the fee for each additional solicitor in excess of one employed by any firm to be set at an amount as established by resolution of the City Council, payable in advance. The Finance Director/Recorder may waive the payment of the license fee for any applicant who is an honorably discharged disabled veteran and a resident of this state, upon presentation of the applicant's certificate of honorable discharge from the service.
(Ord. 299, passed 1-20-54; Am. Ord. 1777, passed 11-9-92)
(A) Any person or firm desiring to secure a solicitor's license shall apply therefor in writing over his signature to the Finance Director/Recorder on forms provided by the city, and the application shall state as to each solicitor:
(1) The name and address of each solicitor;
(2) The name and address of the person, firm or corporation by whom employed;
(3) The length of service of each solicitor with the employer;
(4) The place of residence and nature of the employment of each solicitor during the last preceding year;
(5) The nature or character of the goods, wares, merchandise or services to be offered by each solicitor;
(6) The personal description of each solicitor.
(B) The application shall be accompanied by credentials and other evidence of the good moral character and identity of each solicitor as may be reasonably required by the Finance Director/Recorder.
(Ord. 299, passed 1-20-54)
If the Chief of Police shall determine after 30 days investigation that the facts set forth in the application are true, the solicitor is of good moral character, and that he proposes to engage in a lawful and legitimate commercial or professional enterprise, he shall then approve the application, and the City Council may issue the license applied for. The license shall expire on December 31 of the year in which the license shall have been issued. Except as hereinafter provided no license shall be issued until the conclusion of 30 days investigation.
(Ord. 299, passed 1-20-54)
The license shall be carried at all times by each solicitor for whom issued, when soliciting or canvassing in the city, and shall be exhibited by any solicitor wherever he shall be requested to do so by any police officer or any person solicited.
(Ord. 299, passed 1-20-54) Penalty, see § 114.99
Any license may be revoked by the City Council for the violation or any violation by the employer or solicitor of any of the ordinances of the city or of any state or federal law, or whenever the solicitor shall in the judgment of the City Council cease to possess the character and qualifications required by this chapter for the issuance of a permit.
(Ord. 299, passed 1-20-54)
If any applicant for a license, including solicitor or his employer, shall be unwilling to receive a license only upon the conclusion of a 30-day period of investigation as provided in § 114.05 hereof, and if he desires the issuance of a license by the City Council immediately upon application, he may deposit with the Finance Director/Recorder of the city, a cash or surety bond in the sum of $10,000, conditioned upon the making of final delivery of the goods ordered or services to be performed, in accordance with the terms of the order, or, failing therein, that the advanced payment on the order be refunded, and thereupon the license or licenses may be immediately issued. Any person aggrieved by the action of any the solicitor shall have a right of action on the bond for the recovery of money or damages or both. The bond shall be payable to the city and remain on deposit for a period of 90 days after the expiration of the license unless sooner released by the City Council of the city.
(Ord. 299, passed 1-20-54; Am. Ord. 1777, passed 11-9-92)
All orders taken by licensed solicitors shall be in writing in duplicate, stating the names as it appears on the license and address of both the solicitor and his employer, the terms thereof, and amount paid in advance, and one copy shall be given the purchaser.
(Ord. 299, passed 1-20-54) Penalty, see § 114.99
Any persons or firm engaging in a public auction for the disposal of merchandise from a temporary location shall be bound in the same manner as those defined as solicitors under this chapter.
(Ord. 299, passed 1-20-54)
The terms of this chapter shall not be held to include the acts of persons selling personal property at wholesale to dealers and articles, nor to newsboys, nor
shall the terms of this chapter be held to include or to apply to any producer or his employee selling agricultural or farm products produced from the soil of the state of Oregon by the producer or his employee, nor shall the same apply to the selling of nursery products by the producer thereof from the soil of the state of Oregon, nor to any church, school, charitable or youth organization.
(Ord. 299, passed 1-20-54)
Any person, firm or corporation violating the terms of this chapter commits a Class A offense. Every day upon which a violation shall occur or upon which a violation shall continue shall constitute a separate offense.
(Ord. 299, passed 1-20-54; Am. Ord. 1632, passed 6-22-87)
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)