Ord. 2583 - Management of Utility Services within Right of wayCOUNCIL BILL NO. 3137
ORDINANCE NO. 2583
AN ORDINANCE PROVIDING FOR THE MANAGEMENT OF UTILITY SERVICES WITHIN
THE CITY AND ACCESS TO AND USE OF THE CITY'S RIGHTS-OF-WAY
WHEREAS, the City of Woodburn ("City") has a statutory and Constitutional
authority to manage its rights-of-way and to receive compensation for private use
of the rights-of-way consistent with applicable state and federal law;
WHEREAS, the City has generally granted individually -negotiated franchises
to each utility using the City's rights-of-way to provide utility services;
WHEREAS, the City has determined that it can more effectively, efficiently,
and fairly manage the City's rights-of-way and provide consistent standards for
utility use of the rights-of-way through licenses rather than franchises;
THE CITY OF WOODBURN ORDAINS AS FOLLOWS;
Section 1. Title. The ordinance will be known and may be referenced as
the Utility Service Ordinance.
Section 2. Purpose and Intent. The purpose and intent of this Ordinance is
to:
A. Permit and manage reasonable access to and use of the City's
rights-of-way for utility purposes and conserve the limited physical capacity of
those rights-of-way held in trust by the City consistent with applicable state and
federal law;
B. Assure that the City's current and ongoing costs of granting and
regulating access to, the use of the rights-of-way and utility services provisioned
in the City, are fully compensated by the persons seeking such access and
causing such costs;
C. Secure fair and reasonable compensation to the City and its
residents for permitting use of the rights-of-way by persons who generate revenue
by placing, owning, controlling, using or operating facilities therein or generate
revenue for utility services;
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Ordinance No. 2583
D. Assure that all utility companies, persons and other entities owning,
operating facilities, using facilities, or providing services within the City comply with
the ordinances, rules and all regulations of the City heretofore or hereafter
amended or adopted;
1. For the purposes of this Ordinance, all utility services owned or
operated by the City are excluded.
2. For the purposes of this Ordinance, all utility services owned or
operated by other municipalities are excluded.
E. Assure that the City can continue to fairly and responsibly protect the
public health, safety and welfare of its residents;
F. Encourage the provision of advanced and competitive utility
services on the widest possible basis to businesses and residents of the City by,
1. Allowing the City to enter into other or additional agreements with
Utility Providers and Operators, if the public's interest is served, and to
amend the requirement of this Ordinance and the City regulations,
as new technology is developed;
2. Allowing the City to be resilient and adaptive to changes in
technology; and
G. Comply with applicable provisions of state and federal law.
Section 3. Jurisdiction and Management of the Public Rights-of-way..
A. The City has jurisdiction and exercises regulatory management over,
all rights-of-way within the City and provision of services, under authority of the
City Charter and Oregon law.
B. The City has jurisdiction and exercises regulatory management over
each right-of-way whether the City has a fee, easement, or other legal interest in
the right-of-way, and whether the legal interest in the right-of-way was obtained
by grant, dedication, prescription, reservation, condemnation, annexation,
foreclosure or other means.
C. The exercise of jurisdiction and regulatory management of a right-of-
way by the City is not official acceptance of the righf-of-way and does not
obligate the City to maintain or repair any part of the right-of-way.
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Ordinance No. 2583
D. The provisions of this Ordinance are subject to and will be applied
consistent with applicable state and federal laws, rules and regulations, and, to
the extent possible, will be interpreted to be consistent with such laws, rules and
regulations.
Section 4. Regulatory Fees and Compensation_ Not a Tax.
A. The fees and costs provided for in this Ordinance, and any
compensation charged and paid for use of the righfs-of-way and the provision of
services provided for in this Ordinance, are separate from, and in addition to, any
and all other federal, state, local, and City charges, including but not limited to:
any permit fee, or any other generally applicable fees, tax, or charge on business,
occupations, property, or income as may be levied, imposed, or due from a utility
operator, utility provider, franchisee or licensee, its customers or subscribers, or on
account of the lease, sale, delivery, or transmission of utility services.
B. The City has determined that any fee or tax provided for by this
Ordinance is not subject to the property tax limitations of Article XI, Sections 11
and 11 b of the Oregon Constitution. These fees or taxes are not imposed on
property or property owners.
C. The fees and costs provided for in this Ordinance are subject to
applicable federal and state laws.
Section 5. Definitions. For the purpose of this Ordinance the following
terms, phrases, words and their derivations will have the meaning given herein.
When not inconsistent with the context, words not defined herein will be given
the meaning set forth in the Communications Act of 1934, as amended, the
Cable Act, and the Telecommunications Act. If not defined in those statues, the
words will be given their common and ordinary meaning. 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.
"Cable Act" means the Cable Communications Policy Act of 1987, 47 U.S.C.,
Section 521, et seq., as now and hereafter amended.
"Cable service" is to be defined consistent with federal laws and means the one-
way transmission to subscribers of: (i) video programming, or (ii) other
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programming service; and subscriber interaction, if any, which is required for the
selection or use of such video programming or other programming service.
"Calendar year" means January 1 to December 31, unless otherwise noted.
"City" means the city of Woodburn, an Oregon municipal corporation, and
individuals authorized to act on the City's behalf.
"City council" means the elected governing body of the city of Woodburn,
Oregon.
"City facilities" means City or publicly owned structures or equipment located
within the right-of-way or public easement used for governmental purposes.
"City standards" means the all ordinances, codes, regulations and rules of the
City of Woodburn, in effect at the time of any work.
"City property" means and includes all real property owned by the City, other
than public right -or -way and utility easement as those are defined herein, and all
property held in proprietary capacity by the City.
"Communications services" means any service provided for the purpose of
transmission of information including, but not limited to, voice, video, or data,
without regard to the transmission protocol employed, whether or not the
transmission medium is owned by the provider itself. Communications service
includes all forms of telephone services and voice, video, data or information
transport, but does not include: (1) cable service; (2) open video system service,
as defined in 47 C.F.R. 76; (3) private communications system services provided
without using the public righfs-of-way; (4) public communications systems; (5)
over-fhe-air radio or television broadcasting to the public -at -large from facilities
licensed by the Federal Communications Commission or any successor thereto;
and (6) direct -to -home satellite service within the meaning of Section 602 of the
Telecommunications Act.
"Construction" means any activity in the public right-of-way resulting in physical
change thereto, including excavation or placement of structures.
"Control" or "Use of Facilities" means actual working control over utility facilities in
whatever manner exercised, whether or not the facility is owned. For example,
but not limitation, Control means and includes leased capacity, transport, or any
other use.
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Ordinance No. 2583
"Days" mean calendar days unless otherwise specified.
"Emergency" means a circumstance in which immediate work to repair
damaged or malfunctioning facilities is necessary to restore lost service or prevent
immediate harm to persons or property.
"Federal Communications Commission" or "FCC" means the federal
administrative agency, or its lawful successor, authorized to regulate and oversee
telecommunications carriers, services and providers on a national level.
"Gross Revenue" means any and all amounts, of any kind, nature or form, without
deduction for expense, less net uncollectable, derived from the operation
(including revenue derived from a leases or other agreements allowing use of
facilities to other utility operators or providers), or use of utility facilities in the City,
operation of a Communications Services or the provision of utility service(s) in the
City, subject to all applicable limitations in federal or state law.
"License" or "Utility License" means the authorization granted by the City to a
utility operator or utility provider pursuant to this Ordinance.
"Licensee" or "Utility Licensee" means any person that has a valid Utility licensed
issued by the City.
"Person" means and includes any individual, firm, sole proprietorship, corporation,
company, partnership, co -partnership, joint-stock company, trust, limited liability
company, association, municipality, special district, government entity or other
organization, including any natural person or any other legal entity.
"Private communications system" means a system, including the construction,
maintenance or operation of the system, for the provision of a service or any
portion of a service which is owned or operated exclusively by a person for their
use and not for sale or resale, including trade, barter or other exchange of value,
directly or indirectly, to any person.
"Public communications system" means any system owned or operated by a
government entity or entities for its exclusive use for internal communications or
communications with other government entities, and includes services provided
by the state of Oregon pursuant to ORS 283.1 40. "Public communications system"
does not include any system used for sale or resale, including trade, barter or
other exchange of value, of communications services or capacity on the system,
directly or indirectly, to any person.
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Ordinance No. 2583
"Public utility easement" means the space in, upon, above, along, across, over
or under an easement for the constructing, reconstructing, operating,
maintaining, inspecting, and repairing of utilities facilities. "Public utility easement"
does not include an easement (i) that has been privately acquired by a utility
operator, (ii) solely for the constructing, reconstructing, operating, maintaining,
inspecting, and repairing of city facilities, or (iii) where the proposed use by the
utility operator is inconsistent with the terms of any easement granted to the City.
"Right-of-way" , "Rights -of -Way", "Public right-of-way", or "ROW" means and
includes, but is not limited to, the space in, upon, above, along, across, over or
under the public streets, roads, highways, lanes, courts, ways, alleys, boulevards,
bridges, trails, paths, sidewalks, bicycle lanes, public utility easements and all
other public ways or areas, including the subsurface under and air space over
these areas, but does not include parks, parkland, or other city property not
generally open to the public for travel. This definition applies only to the extent of
the City's right, title, interest and authority to grant a license to occupy and use
such areas for utility facilities.
"Small Cell Wireless Facility" means Facilities owned or operated for the provision
of communications that are shorter ranged, wireless systems affixed to a structure
with generally smaller components than traditional Macro Wireless Facilities and
are deployed where suitable in flexible configurations to provide capacity and
coverage. Small Cell Wireless Facilities means a facility that meets each of the
following conditions per 47 C.F.R § 1.6002(1), as may be amended or superseded:
(1) The facilities (i) are mounted on structures 50 feet or less in
height including the antennas, or (ii) are mounted on structures no
more than 10 percent taller than other adjacent structures, or (iii) do
not extend existing structures on which they are located to a height
of more than 50 feet or by more than 10 percent, whichever is
greater; and,
(2) Each antenna associated with the deployment, excluding
associated antenna equipment, is no more than three cubic feet in
volume; and,
(3) All other wireless equipment associated with the structure,
including wireless equipment associated with the antenna and any
pre-existing associated equipment on the structure, is no more than
28 cubic feet in volume; and,
(4) The facilities do not result in human exposure to radio
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Ordinance No. 2583
frequency in excess of the applicable safety standards specified in
47 C.F.R. § 1.1307(b).
"State" means the state of Oregon.
"Structure" means any facility a Utility Provider or Utility Operator places in the
ROW, including but not limited to poles, vaults or manholes, hand holds, or
junction boxes, conduit, direct bury cable, wires, pedestals, aerial cables or wires
and transformers.
"Telecommunications Act" means the Communications Policy Act of 1934, as
amended by subsequent enactments including the Telecommunications Act of
1996 (47 U.S.C., 151 et seq.) and as hereafter amended.
"Utility facility" or "facility" means any physical component of a system, including
but not limited to the poles, pipes, mains, conduits, ducts, cables, wires,
transmitters, plant, equipment and other facilities, located within, under or above
the rights-of-way, any portion of which is used or designed to be used to deliver,
transmit or otherwise provide utility service.
"Utility operator" or "operator" means any person who owns, places, controls,
operates or maintains a utility facility within the City.
"Utility provider" or "Provider" means any person who provides utility service or
communication services to customers within the City limits, whether or not any
facilities in the ROW are owned by such provider.
"Utility service" means the provision, by means of utility facilities permanently
located within, under or above the rights-of-way, whether or not such facilities are
owned by the service provider, of electricity, natural gas, communications
services, or cable services, to or from customers within the City limits, or the
transmission or provision of any of these services through the City whether or not
customers within the City are served by those transmissions and whether or not
the facilities used for transmission are owned by the service provider.
"Work" means the construction, demolition, installation, replacement, repair,
maintenance or relocation of any utility facility, including but not limited to any
excavation and restoration required in association with such construction,
demolition, installation, replacement, repair, maintenance or relocation.
Section 6. Business Registration, Business Registration Required. Every
person that desires to use, operate or control utility facilities, or provide utility
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Ordinance No. 2583
services to customers within the City will register with the City prior to use,
operation, control of utility facilities, or providing any utility services to any
customer in the City, in compliance with Ordinance No. 2399. Every person using,
operating, controlling, or providing utility services to customers within the City as
of the effective date of this Ordinance will obtain a Business Registration within
thirty (30) days of the effective date of this Ordinance. Every person subject to this
Ordinance will renew and maintain a Business Registration as required in
Woodburn's Ordinances that are heretofore or hereafter amended, at all times
that the person, uses, operates, controls, provides or operates a utility services, to
customers within the City.
Section 7. Utility License.
A. License Required. Except those utility operators and utility providers
with a valid franchise or other valid agreement from the City, every person will
obtain a Utility License from the City prior to conducting any work in or use of the
ROW, or providing utility services or communication services to or from customers
within the City limits, or the transmission or provision of any of these services
through the City whether or not customers within the City are served by those
transmissions and whether or not the facilities used for transmission are owned by
the service provider.
Every person that owns, or controls, provides utility services, or uses
utility facilities in the rights-of-way as of the effective date of this
Ordinance will apply for a Utility License from the City within thirty (30)
days of the later of: (1) the effective date of this Ordinance, or (2) the
expiration of a valid agreement granted by the City, unless a new
agreement is granted by the City (3) for a person that is not a utility
operator, providing utility services within the City.
2. The provisions of this section do not apply to any person subject to
and in compliance with the cable television franchise requirement,
except that subsection K will apply to the extent such person provides
multiple services, subject to applicable law.
B. Utility License Application. The license application will be on a form
provided by the City, and will be accompanied by any additional documents
required by the application or the City, in the City's sole discretion, to identify the
applicant, its legal status, including its authorization to do business in Oregon, a
description of the type of utility service provided or to be provided by the
applicant, a description of the facilities over which the utility service will be
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Ordinance No. 2583
provisioned, and other information necessary to determine the applicant's ability
to comply with the terms of this Ordinance.
C. Utility License Application & Renewal Fee. The application and
renewal application will be accompanied by a nonrefundable fee or deposit set
by resolution of the City Council.
D. Determination by City. The City will issue, within a reasonable period
of time, a written determination granting or denying the Utility License in whole or
in part. If the Utility License is denied, the written determination will include the
reasons for denial. The Utility License will be evaluated based upon the provisions
of this Ordinance, the information contained on the Utility License application, the
continuing capacity of the rights-of-way to accommodate the applicant's
proposed utility facilities and the applicable federal, state and local laws, rules,
regulations and policies.
E. Changes to information contained on the Utility License application.
Within thirty (30) days of a change to the information contained in the license
application, the Licensee will notify the City in writing of such change(s).
F. Franchise and other Agreements. If the public interest warrants, as
determined by the City in its sole discretion, the City and any communications
provider - including cable providers, utility operator or utility provider, including
Small Cell wireless providers, may enter into a written franchise or other
agreement that includes terms that clarify, enhance, expand, waive or vary the
provisions of this Ordinance, consistent with applicable state and federal law. The
agreement may conflict with the terms of this Ordinance with the review and
approval of City Council. The franchisee will be subject to the provisions of this
Ordinance to the extent such provisions are not in conflict with the express
provisions of any such franchise or agreement. In the event of a conflict between
the express provisions of a franchise or other agreement and this Ordinance, the
franchise or other agreement will control.
1. The provider requesting a franchise agreement will deposit a non-
refundable fee, as set by resolution of the City Council before
negotiations occur.
G. Rights _ Granted.
1. The Utility License granted hereunder will authorize and permit the
licensee, subject to the provisions of the City regulations and
ordinance and other applicable provisions of the City, state or
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Ordinance No. 2583
federal law, in effect and as may be subsequently amended, to
construct, place, maintain, upgrade, repair and operate, control or
use utility facilities in the rights-of-way for the term of the license for
the provision of utility service(s) authorized in the license. In the event
the licensee offers different service(s) than those authorized in the
license, the licensee will inform the City of such changes no later than
thirty (30) days after the change.
2. Any Utility License granted pursuant to this Ordinance will not convey
equitable or legal title in the rights-of-way and may not be assigned
or transferred except as permitted in subsection L of this section.
Neither the issuance of the Utility License nor any provisions
contained therein will constitute a waiver or bar to the exercise of
any governmental right or power, including without limitation, the
police power or regulatory power of the City, in existence at the time
the license is issued or thereafter obtained.
H. Term. Subject to the termination provisions in subsection N of this
section, the Utility License granted pursuant to this Ordinance will be effective as
of the date if is issued by the City or the date services began, whichever comes
first, and will have a term of five (5) calendar years beginning: (1) January 1st of
the year in which the license took effect for licenses that took effect between
January 1 st and June 30th; or (2) January 1 st of the year after the license took effect
for licenses that become effective between July 1 st and December 31St.
1. Utility_ License Nonexclusive. No license granted pursuant to this
section will confer any exclusive right, privilege, license or franchise to occupy or
use the rights-of-way for delivery of utility services or any other purpose. The City
expressly reserves the right to grant licenses, franchises or other rights to other
persons, as well as the City's right to use the rights-of-way, for similar or different
purposes. The license is subject to all recorded deeds, easements, dedications,
conditions, covenants, restrictions, encumbrances, and claims of title of record
that may affect the rights-of-way. Nothing in the license will be deemed to grant,
convey, create, or vest in licensee a real property interest in land, including any
fee, leasehold interest or easement.
J. Reservation of Cit Ri hts. Nothing in the Utility License will be
construed to prevent the City from grading, paving, repairing and/or altering any
rights-of-way, constructing, laying down, repairing, relocating or removing City
facilities or establishing any other public work, utility or improvement of any kind,
including repairs, replacement or removal of any city facilities. If any of licensee's
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Ordinance No. 2583
utility facilities interfere with the construction, repair, replacement, alteration or
removal of any rights-of-way, public work, city utility, city improvement or city
facility, except those providing utility services in competition with a licensee,
licensee's facilities will be removed or relocated as provided in subsections C, D
and E of Section 9, in a manner acceptable to the City and consistent with City
standards, industry standard engineering and safety codes in effect at the time
the work is required.
K. Multiple Services.
I . A utility operator that provides or transmits or allows the provision or
transmission of utility services and other services over its facilities is
subject to the license and Usage fee requirements of this Ordinance
for the portion of the facilities and extent of utility services delivered
over those facilities. Nothing in this subsection J (1 ) requires a utility
operator to pay the Usage use fee, if any, owed to the City by
another person using the utility operator's facilities.
2. A utility operator that provides or transmits more than one utility
service to customers in the City may not be required to obtain a
separate Utility License or franchise for each utility service, but is
required to file separate reports, remittances and submit any Usage
fees due for each service provided.
L. Transfer or_Assgnm_ent. To the extent permitted by applicable state
and federal laws, the Utility Licensee will obtain the written consent of the City
prior to the transfer or assignment of the license. The license will not be transferred
or assigned unless:
1. The proposed transferee or assignee is authorized under all
applicable laws to own or operate the utility facilities and/or provide
the utility service authorized under the license; and
2. The transfer or assignment is approved by all agencies or
organizations required or authorized under federal and state laws to
approve such transfer or assignment.
The Utility Licensee requesting the transfer or assignment will fully cooperate with
the City and provide requested documentation, as the City deems necessary, in
the City's sole discretion, at no cost to the City, to sufficiently understand the
transferees' ability to perform under the license.
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Ordinance No. 2583
If the City approves such transfer or assignment, the transferee or assignee will
become responsible for fulfilling all obligations under the Utility License. A transfer
or assignment of a license does not extend the term of the license.
M. Renewal. At least thirty (30) days, but no more than ninety (90) days
prior to the expiration of a Utility License granted pursuant to this section, a
licensee seeking renewal of its license will submit a license application to the City,
including all information required in subsection B of this section and applicable
fees fee required in subsection C of this section, The City will review the
application as required by subsection D of this section and grant or deny the
license. If the City determines that the licensee is in violation of the terms of this
Ordinance, or other City Ordinances, rules or regulations, at the time if submits its
application, the City may require that the licensee cure the violation or submit a
detailed plan to cure the violation within a reasonable period of time, as
determined by the City, before the City will consider the application and/or grant
the license. If the City requires the licensee to cure or submit a plan to cure a
violation, the City will grant or deny the license application within ninety (90) days
of confirming that the violation has been cured or of accepting the licensee's
plan to cure the violation.
N. Termination.
Revocation or Termination of a Utility License. The City may terminate
or revoke the license granted pursuant to this Ordinance for any of
the following reasons:
a. Violation of any of the provisions of this Ordinance;
b. Violation of any provision of the license;
c. Misrepresentation in a license application;
d. Failure to pay taxes, compensation, fees or costs due the City
after final determination by the City, of the taxes, compensation,
fees or costs;
e. Failure to restore the rights-of-way after construction as required
by this Ordinance or other applicable state and local laws,
ordinances, rules and regulations;
f. Failure to comply with technical, safety and engineering
standards related to work in the rights-of-way; or
g. Failure to obtain or maintain any and all licenses, permits,
certifications and other authorizations required by state or federal
law for the placement, maintenance and/or operation of the
utility facilities.
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Ordinance No. 2583
2. Standards for Revocation or Termination. In determining whether
termination, revocation or some other sanction is appropriate, the
following factors will be considered;
a. The egregiousness of the misconduct;
b. The harm that resulted;
c. Whether the violation was intentional;
d. The Licensee's history of compliance; and/or
e. The Licensee's cooperation in discovering, admitting and/or
curing the violation.
3. Notice and Cure. The City will give the Utility Licensee written notice
of any apparent violations before terminating a Utility License. The
notice will include a short and concise statement of the nature and
general facts of the violation or noncompliance and provide a
reasonable time (no less than twenty (20) and no more than forty (40)
days) for the Licensee to demonstrate that the Licensee has
remained in compliance, that the Licensee has cured or is in the
process of curing any violation or noncompliance, or that it would be
in the public interest to impose a penalty or sanction less than
termination or revocation. If the Licensee is in fhe process of curing a
violation or noncompliance, the Licensee must demonstrate that it
acted promptly and continues to actively work on compliance. If the
Licensee does not respond or if the City determines that the
Licensee's response is inadequate, the City may revoke and/or
terminate the Utility License.
4. Termination by Utility Licensee. If a licensee ceases to be required to
have a Utility License, as defined under this Ordinance, the licensee
may terminate or surrender its license, with a thirty (30) day notice to
the City. Licensee may reapply for a Utility License at any time. No
refunds or credits will be given for licenses terminated by the licensee
or the City.
a. Within thirty (30) days of surrendering a Utility License, the licensee
will file a final remittance form with the City stating, "final
remittance" and will remit any funds due.
b. Upon surrendering a Utility License, the licensee will file a written
statement that it has removed, or will remove within 60 days, any
and all facilities from the City and no longer provides Utility
Services, as defined in this ordinance.
Section 8. Construction and Restoration.
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Ordinance No. 2583
A. Construction Codes. Utility facilities will be constructed, installed,
operated, repaired and maintained in accordance with all applicable federal,
state and local codes, rules and regulations, including but not limited to the
National Electrical Code and the National Electrical Safety Code and the City
Standards, in effect at the time of the work. When a utility operator, utility provider
or licensee, or any person acting on its behalf, does any work in, or affecting the
rights-of-way, the utility operator will, at its own expense, promptly restore the
rights-of-way as directed by the City consistent with applicable city codes, rules
and regulations, in effect at the time of the work. A utility operator, utility provider,
licensee or other person acting on its behalf will use suitable barricades, flags,
flagging attendants, lights, flares and other measures as required for the safety of
all members of the general public and to prevent injury or damage to any
person(s), vehicle or property by reason of such work in or affecting the rights of
way or property.
B. Construction Permits.
I No person will perform any work on utility facilities within the rights-of-
way without first obtaining all required permits. The City will not issue
a permit for the construction, installation, maintenance, or repair of
utility facilities unless the utility operator of the facilities has applied for
and received a valid license, franchise agreement or other valid
agreement (if applicable), required by this Ordinance, and all
applicable fees have been paid. No permit is required for routine
maintenance or repairs to customer service drops where such,
repairs or maintenance do not require cutting, digging, or breaking
of, or damage to, the right of way and do not result in closing or
blocking any portion of the travel lane for vehicular traffic, bicycle
lanes or sidewalks.
2. In the event of an Emergency, a utility operator or provider with a
license pursuant to this Ordinance or its contracfor may perform work
on its utility facilities without first obtaining a permit from the City,
provided that, to the extent reasonably feasible, it affempts to notify
the City prior to commencing the emergency work and in any event
applies for a permit from the City as soon as reasonably practicable,
but not later than 5:00pm PST of the next business day after
commencing the emergency work.
A. Location of Facilities. Unless otherwise agreed to in writing by the City:
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Ordinance No. 2583
1. All utility operators are required to make good faith effort to both
cooperate with and coordinate their construction schedule with
those of the City and other users.
2. Utility facilities will be installed underground in all areas of the City
where there are no existing poles in the ROW, there is no space on
existing poles in the ROW, or where the only poles in the ROW are
used only for high voltage lines (as defined below). This requirement
will not apply to facilities used for transmission of electric energy at
nominal voltages in excess of thirty-five thousand (35,000) volts or to
antennas, pedestals, cabinets or other above -ground equipment of
any utility operator for which the utility operator has written
authorization to place above -ground.
3. Whenever any existing electric utilities, cable facilities or
communications facilities are located underground within the ROW
of the City, the utility operator with permission to occupy the same
ROW will install all new facilities underground at no cost to the City.
This requirement will not apply to facilities used for transmission of
electric energy at nominal voltages in excess of thirty-five thousand
(35,000) volts ("high voltage lines") or to antennas, pedestals,
cabinets or other above -ground equipment of any utility operator.
The City reserves the right to require written approval of the location
of any such above -ground equipment in the ROW.
B. Interference with the Rights -of -Way. No utility operator or other
person may locate or maintain its facilities so as to unreasonably interfere with the
use of the rights-of-way by the City, by the general public or by other persons
authorized to use or be present in or upon the rights-of-way. Utility facilities will not
be located in area of restricted sight distance nor interfere with the proper
function of traffic control signs, signals, lighting, or other devices that affect traffic
operation. All use of the rights-of-way will be consistent with City codes,
ordinances, rules and regulations in effect and as may be subsequently
amended.
C. Relocation of Utility Facilities. Unless otherwise agreed to in writing by
the City:
A utility operator will, at no cost to the City, temporarily or
permanently remove, relocate, change or alter the position of any
utility facility within the ROW, including relocation of aerial facilities
Page 15 Council Bill No. 3137
Ordinance No. 2583
underground, when requested to do so in writing by the City. If
relocation is required by the City, the City will bear no responsibility or
incur any costs, to provide or in any way secure alternate locations.
2. Nothing herein will be deemed to preclude the utility operator from
seeking reimbursement or compensation from a third party, pursuant
to applicable laws, regulations, tariffs or agreements, provided that
the utility operator will timely comply with the requirements of this
section regardless of whether or not it has requested or received such
reimbursement or compensation.
3. The City may coordinate the schedule for relocation of utility facilities
and based on such effort will provide written notice of the time by
which the utility operator must remove, relocate, change, alter or
underground its facilities. If a utility operator fails to remove, relocate,
change, alter or underground any utility facility as requested by the
City by the date reasonably established by the City, the utility
operator will pay all costs incurred by the City due to such failure,
including but not limited to costs related to project delays, and the
City may cause, using qualified personnel or contractors consistent
with applicable state and federal safety laws and regulations, the
utility facility to be removed, relocated, altered, or undergrounded
at the utility operator's sole expense. Upon receipt of an invoice from
the City, the utility operator will reimburse the City for the costs the
City incurred within thirty (30) days.
4. The City will cooperate with the utility operator in securing alternate
locations. However, the City will bear no responsibility or costs for
securing alternate locations. The City will bear no responsibility to
obtain, compensate, or otherwise assist the utility operator in
relocation of is facilities to location not in the control of the City.
D. Removal of Unauthorized Facilities.
1. Unless otherwise agreed to in writing by the City, within thirty (30) days
following written notice from the City or such other time agreed to in
writing by the City, a utility operator and any other person that owns,
controls, or maintains any abandoned or unauthorized utility facility
within the rights-of-way will, at its own expense, remove the facility
and restore the affected area.
Page 16 Council Bill No. 3137
Ordinance No. 2583
2. A utility system or facility is unauthorized under any of the following
circumstances:
a. The utility facility, or any portion of the facility, is outside the scope
of authority granted by the City under the Utility License, franchise
or other written agreement. This includes facilities that were never
licensed or franchised and facilities that were once licensed or
franchised but for which the license or franchise has expired or
been terminated. This does not include any facility for which the
City has provided written authorization for abandonment in
place.
b. The facility has been abandoned and the City has not provided
written authorization for abandonment in place. A facility is
abandoned if it is not in use and is not planned for further use. A
facility will be presumed abandoned if it is not used for a period
of twelve (12) consecutive months. A utility operator may
overcome this presumption by presenting plans for future use of
the facility.
c. The utility facility is improperly constructed or installed or is in a
location not permitted by the construction permit, license,
franchise or this Ordinance.
d. The utility operator is in violation of a material provision of this
Ordinance and fails to cure such violation within thirty (30) days of
the City sending written notice of such violation, unless the City
extends such time period in writing.
1=. Removal by Cit.
1. The City retains the right and privilege to cut or move any utility,
without notice, as the City determines, at its sole discretion to be
necessary, appropriate or useful in response to a public health or
safety emergency. The City will use qualified personnel or
contractors consistent with applicable state and federal safety laws
and regulations to the extent reasonably practicable without
impeding the City's response to the emergency. The City will use best
efforts to provide the utility operator with notice prior to cutting or
moving facilities. If prior notice is not possible, the City will provide
such notice as soon as reasonably practicable after resolution of the
emergency.
2. If the utility operator fails to remove any facility when required to do
so under this Ordinance, the City may remove the facility using
qualified personnel or contractors consistent with applicable state
Page 17 Council Bill No. 3137
Ordinance No. 2583
and federal safety laws and regulations, and the utility operator will
be responsible for paying the full cost of the removal and any
administrative costs incurred by the City in removing the facility and
obtaining reimbursement. Upon receipt of an invoice from the City,
the utility operator will reimburse the City for the costs the City
incurred within thirty (30) days. The obligation to remove will survive
the termination of the license or franchise.
3. The City will not be liable to any utility operator for any damage to
utility facilities, or for any incidental or consequential losses resulting
directly or indirectly therefrom, by the City or its contractor in
removing, relocating or altering the facilities pursuant to this Section
9, or resulting from the utility operator's failure to remove, relocate,
alter or underground its facilities as required by this Section 9, unless
such damage arises directly from the City's or it's contractor's
negligence or willful misconduct.
F. Enqineerincl Record Drawincls. The utility operator will provide the
City with two complete sets of record drawings in a form acceptable to the City
showing the location of all its utility facilities after initial construction if such plan
changed during construction. The utility operator will provide updated complete
sets of as built plans upon request of the City, but not more than once per year.
G. Facility Map. Utility operator, Utility provider and Utility Licensee will
provide, at no cost to the City, a comprehensive map showing the location of
any facility in the City. Such map will be provided in a format acceptable to the
City, with accompanying data sufficient enough for the City to determine the
exact location of facilities, currently in Shapefile or Geodatabase format. The
Utility Operator, Utility Provider and Utility Licensee will provide such map yearly by
February 1 if any changes occurred during the prior year. The City may also
request and will be provide the map, at no cost to the City, upon request, no
more than once per year.
Section 10. Leased Capacity. A utility operator may lease capacity on or
in its facilities to others, provided that the utility operator requires and has
verified with the City, that the proposed lessor has obtained proper authority
from the City prior to leasing capacity or allowing use of its facilities. Upon
request, at no cost to the City, the utility operator will provide a complete list
with the name, business address and contact information of any lessee. If
requested by the City, the utility operator will also provide exact details of any
attachment by lessee. A utility operator is not required to provide such
information if disclosure is expressly prohibited by applicable law.
Page 18 Council Bill No. 3137
Ordinance No. 2583
Section 11. Maintenance.
A. Every utility operator will install and maintain all facilities in a manner
that complies with applicable federal, state and local laws, rules, regulations and
policies. The utility operator will, at its own expense, repair and maintain facilities
from time to time as may be necessary to accomplish this purpose.
B. If, atter written notice from the City of the need for repair or
maintenance as required in subsection A of this section, a utility operator fails to
repair and maintain facilities as requested by the City and by the date reasonably
established by the City, the City may perform such repair or maintenance using
qualified personnel or contractors consistent with applicable state and federal
safety laws and regulations at the utility operator's sole expense. Upon receipt of
an invoice from the City, the utility operator will reimburse the City for the costs
the City incurred within thirty (30) days.
Section 12. Vacation. If the City vacates any ROW, or portion thereof, that
a utility operator uses, the utility operator will, at its own expense, remove its
facilities from the ROW unless the City reserves a public utility easement, which
the City will make a reasonable effort to do provided that there is no expense to
the City, or the utility operator obtains an easement for its facilities. If the utility
operator fails to remove its facilities within thirty (30) days after a ROW is
vacated, or as otherwise directed or agreed to in writing by the City, the City
may remove the facilities using qualified personnel or contractors consistent with
applicable state and federal safety laws and regulations at the utility operator's
sole expense. Upon receipt of an invoice from the City, the utility operator will
reimburse the City for the costs the City incurred within thirty (30) days.
Section 13. Usage_Fee.
A. Except as set forth in subsection B of this section, every person that
owns utility facilities in the City's rights-of-way and every person that uses or
controls utility facilities in the City's rights-of-way to provide utility service, whether
or not the person owns the utility facilities used to provision the utility services and
every person that provides ufi[ity services within the City, will pay the usage fee for
every utility service provided in the amount determined by resolution of the City
Council.
B. A utility operator whose only facilities in the ROW are facilities
mounted on above -ground structures within the ROW, which structures are
owned by another person, and with no facilities strung between such structures
Page 19 Council Bill No. 3137
Ordinance No. 2583
or otherwise within, under or above the ROW (other than equipment necessary to
operate the mounted facilities that has been expressly approved by the City to
be placed in the ROW), will pay the attachment fee set by City Council resolution
for each attachment, or such other fee set forth in the license granted by the City.
Unless otherwise agreed to in writing by the City, the fee will be paid quarterly, in
arrears, within thirty (30) days after the end of each calendar quarter and will be
accompanied by information sufficient to illustrate the calculation of the amount
payable.
C. No acceptance of any payment will be construed as accord that
the amount paid is in fact the correct amount, nor will such acceptance of
payment be construed as a release of any claim the City may have for further or
additional sums payable.
D. Usage fee payments required by this section will be reduced by any
franchise fees or privilege taxes, due to the City, but in no case will be less than
zero dollars ($0).
E. Unless otherwise agreed to in writing by the City, the Usage fee set
forth in subsection A of this section will be paid quarterly, in arrears, within thirty
(30) days after the end of each calendar quarter. Each payment will be
accompanied by an accounting of gross revenues, if applicable, and a
calculation of the amount payable (a remittance form will be provided by the
City). The City may request and will be provided at no cost to the City, any
additional reports or information it deems necessary, in its sole discretion, to ensure
compliance by the utility provider, utility operator or licensee. Such information
may include, but is not limited to: chart of accounts, total revenues by categories
and dates, list of products and services, narrative documenting calculation,
details on number of customers within the City limits, or any other information
needed for the City to easily verify compliance.
F. The calculation of the Usage fee required by this section will be
subject to all applicable limitations imposed by federal or state law in effect and
as may be subsequently amended.
G. The City reserves the right to enact other fees and taxes applicable
to the utility providers, utility operators and licensee subject to this Ordinance.
Unless expressly permitted by the City in enacting such fee or tax, or required by
applicable state or federal law, no utility operator may deduct, offset or otherwise
reduce or avoid the obligation to pay any lawfully enacted fees or taxes based
on the payment of the Usage fees or any other fees required by this Ordinance
Page 20 Council Bill No. 3137
Ordinance No. 2583
Section 14. Penalties and Interest on Usage Fee. Penalties and interest
imposed by this section are in addition to any penalties that may be assessed
under other ordinances or regulations of the City.
A. Any person who has not submitted the required remittance forms or
remitted the correct fees when due as provided in Section 13 will pay a penalty
listed below in addition to the amount due:
1. First occurrence during any one calendar year; Ten percent
(10%) of the amount owed, or Twenty-five dollars ($25.00),
whichever is greater.
2. Second occurrence during any one calendar year; Fifteen
percent (15%) of the amount owed, or Fifty dollars ($50.00),
whichever is greater.
3. Third occurrence during any one calendar year; Twenty percent
(20%) or the amount owed, or Seventy-five dollars ($75.00),
whichever is greater.
4. Fourth occurrence during any one calendar year; Twenty-five
percent (25%) of the amount owed, or One hundred dollars
($100.00), whichever is greater.
B. If the City determines that the nonpayment of any remittance due
under this section is due to fraud or intent to evade the provisions hereof, an
additional penalty of twenty-five percent (25%) of the amount owed, or Five
hundred dollars ($500.00), whichever is greater, will be added thereto in addition
to other penalties stated in section 14.
C. In addition to the penalties imposed, any person who fails to remit
any fee when due as provided in Section 13 will pay interest at the rate of 1.5%
per month or fractions thereof, without proration for portions of a month, on the
total amount due (including penalties), from the date on which the remittance
first became delinquent, until received by the City.
D. Every penalty imposed, and such interest as accrues under the
provision of this section, will be merged with, and become part of, the fee
required to be paid.
The City or its designee, in their sole discretion, will have the authority to reduce
or waive the penalties and interest due under Section 14.
Page 21 Council Bill No. 3137
Ordinance No. 2583
Section 15. Audits and Records Requests.
A. Within thirty (30) days of a written request from the City, or as
otherwise agreed to in writing by the City:
1. Every Utility Licensee, Utility Operator and Utility Provider will furnish
the City, at no cost to the City, with information sufficient to
demonstrate compliance with all the requirements of this
Ordinance, any franchise agreements or other agreements, if
any, including but not limited to payment of any applicable
Business Registration fee, licensing fee, usage fee, attachment
fee, franchise fee or privilege taxes.
2. Every Utility Operator, Utility Provider and Utility Licensee will make
available for inspection by the City at reasonable times and
intervals all maps, records, books, diagrams, plans and other
documents, maintained by the utility operator with respect to its
facilities or use of facilities, within the rights-of-way. Access will be
provided within the City unless prior arrangement for access
elsewhere has been made and approved by the City,
B. If the City's audit of the books, records and other documents or
information of the Utility Licensee, Utility Operator or Utility Provider demonstrate
that there has been underpaid the usage fee, licensing fee, attachment fee or
franchise fee or any other fee or payment by two percent (2%) or more in any
one (1) year, the licensee, utility operator, or utility provider will reimburse the City
for the cost of the audit, in addition to any interest owed pursuant to Section 14
or as specified in other agreements or franchises with the City.
C. Any underpayment, including any interest or audit cost
reimbursement, will be paid within thirty (30) days of the City's notice of such
underpayment.
D. The Licensee, Utility Provider or Utility Operator is not required to
maintain records for more than six (6) years. The City is not required to maintain
records beyond the State retention schedules.
Section 16. Insurance and Indemnification.
Page 22 Council Bili No. 3137
Ordinance No. 2583
A. Insurance.
1. All utility operators will maintain in full force and effect the following
liability insurance policies that protect the utility operator and the
City, as well as the City's officers, agents, and employees:
a. Comprehensive general liability insurance with limits not less than:
i. Three million dollars ($3,000,000.00) for bodily injury or death to
each person;
ii. Three million dollars ($3,000,000.00) for property damage
resulting from any one accident; and
iii. Three million dollars ($3,000,000.00) for all other types of
liability.
b. Commercial Automobile liability insurance for owned, non -
owned and hired vehicles with a limit of one million dollars
($1,000,000.00) for each person and three million dollars
($3,000,000.00) for each accident.
c. Worker's compensation within statutory limits and employer's
liability with limits of not less than one million dollars ($1,000,000.00).
d. If not otherwise included in the policies required by subsection a.
above, maintain comprehensive form premises -operations,
explosions and collapse hazard, underground hazard and
products completed hazard with limits of not less than three million
dollars ($3,000,000.00) .
e. utility operator may utilize primary and umbrella liability insurance
policies to satisfy the preceding insurance policy limit
requirements.
2. The limits of the insurance will be subject to statutory changes as to
maximum limits of liability imposed on municipalities of the state of
Oregon. The insurance will be without prejudice to coverage
otherwise existing and will name, or the certificate of insurance will
name, with the exception of worker's compensation, as additional
insureds the City and its officers, agents, and employees. The
coverage must apply as to claims between insureds on the policy.
The insurance will not be canceled or materially altered without thirty
(30) days prior written notice first being given to the City, and the
certificate of insurance will include such an endorsement. If the
insurance is canceled or materially altered, the utility operator will
obtain a replacement policy that complies with the terms of this
section and provide the City with a replacement certificate of
insurance. The utility operator will maintain continuous uninterrupted
Page 23 Council Bill No. 3137
Ordinance No. 2583
coverage, in the terms and amounts required. The utility operator
may self -insure, or keep in force a self-insured retention plus
insurance, for any or all of the above coverage.
3. The utility operator will maintain on file with the City a certificate of
insurance, or proof of self-insurance acceptable to the City,
certifying the coverage required above.
B. Financial Assurance. Unless otherwise agreed to in writing by the City,
before a franchise is granted or license issued pursuant to this Ordinance is
effective, and as necessary thereafter, the utility operator will provide a
performance bond or other financial security or assurance, in a form acceptable
to the City, as security for the full and complete performance of the franchise or
license, if applicable, and compliance with the terms of this Ordinance, including
any costs, expenses, damages or loss the City pays or incurs because of any
failure attributable to the utility operator to comply with the codes, ordinances,
rules, regulations or permits of the City. This obligation is in addition to the
performance surety required under this Ordinance.
C. Indemnification.
Each utility licensee will defend, indemnify and hold the City and its
officers, employees, agents and representatives harmless from and
against any and all liability, causes of action, claims, damages,
losses, judgments and other costs and expenses, including attorney
fees and costs of suit or defense (at both the trial and appeal level,
whether or not a trial or appeal ever takes place) that may be
asserted by any person in any way arising out of, resulting from,
during or in connection with, or alleged to arise out of or result from
the negligent, careless, or wrongful acts, omissions, failure to act, or
other misconduct of the utility licensee or its affiliates, officers,
employees, agents, contractors, subcontractors, or lessees in the
construction, operation, maintenance, repair, or removal of its
facilities, and in providing or offering utility services over the facilities,
whether such acts or omissions are authorized, allowed, or prohibited
by this Ordinance or by a franchise agreement. The acceptance of
a Utility license, or of a franchise granted by the City, will constitute
such an agreement by the applicant whether the same is expressed
or not, unless expressly stated otherwise in the license or franchise.
Upon notification of any such claim the City will notify the utility
operator and provide the utility operator with an opportunity to
provide defense regarding any such claim.
Page 24 Council Bill No. 3137
Ordinance No. 2583
2. Every utility licensee will also indemnify the City for any damages,
claims, additional costs or expenses assessed against or payable by
the City arising out of or resulting, directly or indirectly, from the utility
licensee's failure to remove or relocate any of its facilities in a timely
manner, unless the utility licensee's failure arises directly from the
City's negligence or willful misconduct.
Section 17. Compliance. Every Utility licensee, utility operator and utility
provider will comply with all applicable federal and state laws and regulations,
including regulations of any administrative agency thereof, as well as all
applicable ordinances, resolutions, rules and regulations of the City, heretofore
or hereafter adopted or established during the entire term of any Utility License
granted under this Ordinance.
Section 18. 'ConfidentiallProprietary Information. If any person is required
by this Ordinance to provide books, records, maps or information to the City that
the person reasonably believes to be confidential or proprietary, and such
books, records, maps or information are clearly marked as confidential at the
time of disclosure to the City ("confidential information"), the City will take
reasonable steps to protect the confidential information to the extent permitted
by Oregon Public Records Laws. In the event the City receives a public records
request to inspect any confidential information and the City determines that it
will be necessary to reveal the confidential information, to the extent reasonably
possible the City will notify the person that submitted the confidential
information of the records request prior to releasing the confidential information.
The City will not be required to incur any costs to protect any confidential
information, other than the City's routine internal procedures for complying with
the Oregon Public Records Law.
Section 19. Penalties and Violations.
A. Any person found in violation of any of the provisions of this
Ordinance or the Utility License will be subject to a penalty of not less than one
hundred fifty dollars ($150), nor more than twenty-five hundred dollars ($2,500) for
each offense, which shall be processed in accordance with the procedures
contained in the Woodburn Civil Infraction Ordinance (Ord. No. 1998). A violation
will be deemed to exist separately for every section violated and be- assessed
each and every day during which a violation exists.
B. Nothing in this Ordinance will be construed as limiting any judicial or
other remedies the City may have at law or in equity, for enforcement of this
Page 25 Council Bill No. 3137
Ordinance No. 2583
Ordinance, including those Civil Infractions that may be imposed under
Ordinance 1998.
C. The City or its designee, in f heir sole discretion, will have the
authority to reduce or waive the penalties and interest due under this subsection
19.
A. The provisions of this Ordinance will be interpreted to be consistent
with applicable federal and state law, and will be interpreted, to, the extent
possible, to cover only matters not preempted by federal or state law.
B, If any article, section, subsection, sentence, clause, phrase, term,
provision, condition or portion of this Ordinance is for any reason declared or held
to be invalid or unenforceable by any court of competent jurisdiction or
superseded by state or federal legislation, rules, regulations or decision, the
remainder of this Ordinance will not be affected thereby but will be deemed as
a separate, distinct and independent provision, and such holding will not affect
the validity of the remaining portions hereof, and each remaining section,
subsection, clause, phrase, term, provision, condition, covenant and portion of
this Ordinance will be valid and enforceable to the fullest extent permitted by
law. In the event any provision is preempted by federal or state laws, rules or
regulations, the provision will be preempted only to the extent required by law
and any portion not preempted will survive. If any federal or state law resulting in
preemption is later repealed, rescinded, amended or otherwise changed to end'
the preemption, such provision will thereupon return to full force and effect and
will thereafter be binding without further action by the City.
Section 21. Application to Existing Agreements. To the extent that this
Ordinance is not in conflict with and can be implemented consistent with
existing franchise agreements, this Ordinance will apply to all existing franchise
agreements granted to utility operators and utility providers by the City.
933M�—=MMl4iolillffiTloTim—
Approved as to form:
City Attorney Date
Page 26 Council Bill No. 3137
Ordinance No. 2583
WE&=*
Passed by the Council
Submitted to the Mayor
Approved by the Mayor
Filed in the Office of the Recorder
ATTEST: L 9)1()� LPA(�'V-fl-j
Heather Pierson, City Recorder
City of Woodburn, Oregon
Page 27 Council Bill No, 3137
Ordinance No. 2583
Eric Swenson, Mayor