August 31, 2020 Agenda Packet
E RIC S WENSON,M AYOR
D EBBIE C ABRALES,C OUNCILOR W ARD 1
C ITY OF W OODBURN
L ISA E LLSWORTH,C OUNCILOR W ARD II
R OBERT C ARNEY,C OUNCILOR W ARD III
C ITY C OUNCIL W ORK
S HARON S CHAUB,C OUNCILOR W ARD IV
M ARY B ETH C ORNWELL,C OUNCILOR W ARD V
S ESSION A GENDA
E RIC M ORRIS,C OUNCILOR W ARD VI
A UGUST 31,2020–7:00 P.M.
VIAVIDEOCONFERENCING
1.CALL TO ORDER AND FLAG SALUTE
2.ROLL CALL
3.WORK SESSION
A.UtilityServicesOrdinance1
B.City of Woodburn Emergency OperationsCenter56
4.CITY ADMINISTRATOR’S REPORT
5.MAYOR AND COUNCIL REPORTS
6.ADJOURNMENT
COUNCIL GOALS 2019-2021
Thematic Goals
1.Create an inclusive environment where residents participate and are engaged in the community (that is vibrant, safe
and active).
2.Promote an environment that encourages sustainable economic health maximizing our geographic, workforce,
cultural and community assets.
Strategic Goals
3.Create an inclusive environment where Woodburn residents want to participate and are engaged in the community.
This facility is ADA accessible. If you need special accommodation, please contact the City Recorder at
503-980-6318or Statewide Toll Free Relay (800) 735-1232, at least 48 hours prior to this meeting.
Si usted necesita asistencia especial, comuníquese al 503-980-6322 o a la línea telefónica gratuita, (800)
735-1232, con un mínimo de 48 horas, antes de la reunión.
**Habrá intérpretes disponibles para aquéllas personas que no hablan Inglés, previo acuerdo.
Comuníquese al (503) 980-6322.**
August 31,2020Council Agenda Page i
4.Develop innovative funding sources to help support the completion of capital improvement projects.
5.Grow and support strategic partnerships for economic health.
6.Explore the development of a non-profit consolidation facility.
7.Improve Communication and Coordination with School District on matters of mutual interest.
8.Completion of the First Street remodel.
9.Completion of Phase 1 & 2 of the Community Center Project including the formation of an ad hoc steering committee
to review and recommend design.
10.Creation of the Dick Jennings Community Leadership Academy.
11.Develop a strategy to limit PERS liability.
12.Establishment of a Woodburn 20 year community-visioning plan.
July 27,2020Council Agenda Page ii
Agenda Item
August 31, 2020
TO:Honorable Mayor and City Council through City Administrator
FROM:Jim Row, Assistant City Administrator
McKenzie Granum, Assistant City Attorney
SUBJECT:Workshop Regarding Utility Services Ordinance
RECOMMENDATION:
The City Council will be having a workshop to discuss the upcoming adoption of
a utility services ordinance that will implement a new licensing program to
regulate utility service providers that utilize the City right-of-way("ROW")and that
do not otherwise have a franchise agreement with theCity. No action is
suggested to be taken at this work sessionregarding this item.
BACKGROUND:
At the July 13th City Council Meeting, Consultant Reba Crocker of ROW
Consultants LLC, introduced what is to be a new utility licensing program in the
City. At that a meeting a general introduction to the topic was presented and an
initial draft ordinance and associated fee resolution was presented for the
Council's review. Following that meeting, the proposed draft was sent to
numerous providers of telecommunications, gas, and electric services in Oregon.
The City has received written feedback regarding its ordinance proposal from
four companies (AT&T, Verizon, Fatbeam, and PGE). The providers' feedback and
written comments are attached and included with this staff report.
After receiving the provider feedback and completing further review of the draft
ordinance and resolution, some edits and updates were incorporated into both
documents (also attached).
DISCUSSION:
Reba Crocker will again be presenting and providing the framework for the
Council's discussion regarding the proposed utility licensing program, with the
Agenda Item Review:City Administrator ____x__City Attorney ____x__Finance ___x__
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Honorable Mayor and City Council
August 31, 2020
Page 2
intention of having an interacting and productive conversation with the Council
that tackles technical questions, policy concerns, industry dealings, and general
impacts that may result from adopting this new program.
Planned talking points will include:
Understanding the difference between franchised utilities andthose
regulated under a licensing program.
Discussing how providers will be identified and compelled to comply with
new licensing requirements.
Addressing concerns and objections raised by telecommunication
providers.
Recognizing and understanding how recent FCC Orders impact the
regulation of telecommunication systems and services within the municipal
right of way and why having a utility services ordinances will allow the City
to make more adaptive and responsive changes in response to federal law.
Examining how this update will provide the structure and regulation for
possible future 5G/Small Cell Wireless facility deployments in Woodburn.
If upon review of the proposed ordinance, resolution, or provider
correspondence, any Councilor has an immediate question or concern they
would like addressed, then please feel free to submit questions ahead of the
workshop to staff so that Ms. Crocker or City staff can be sure to cover the subject
in full detail during the work session.
As provided previously, the pertinent provisions of the enclosed draft Utility
Services Ordinance includes:
Utilities operated by the City and other municipalities are exempted from
the requirements of the ordinance
Providers are required to maintain a City of Woodburn Business Registration
Providers with existing franchises agreements are exempted until their
agreements expire
Preserves the City’s right to enter into franchise agreements with individual
providers in situations where the public interest warrants
Wire line cable television providers will continue to operate under franchise
agreements due to protections under FCC law
Each license with utility providers will be for a term of five (5) years
Licenses are transferrable upon the written consent of the City, provided
the transfers are consistent with state and federal law
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Honorable Mayor and City Council
August 31, 2020
Page 3
Providers seeking license renewals shall submit license applications at least
thirty (30) days, but not more than ninety (90) days prior to expiration
Includes provisions under which the City may terminate licenses
Includes requirements that providers must comply with related to the
location, construction,maintenance and removal of facilities in the ROW
Provides for ROW license and usage fees to be established by resolution
Staff expects implementation of the program to occur according to the following
timeline:
June 2020: contracted with ROW Consultants LLC
June - July: ordinance drafted
July 13: draft ordinance presented toCity Council
July - August: outreach to providers
August: discussions with providers
September 14: public hearing & ordinance adoption
October 1: ordinance effective
Ongoing: revisions, housekeeping, and edits
:
FINANCIAL IMPACT
The development of a uniform utility service provider licensing program is
anticipated to result in an increase in ROW usage fees, formally referred to as
franchise fees. The amount of the increase is unknown at this time and will
depend on the number of utility service providers the City is able to determine are
utilizing the ROW.
Enclosures:
Draft Utility Services Ordinance(updated w/ redline edits)
Draft Utility LicensingFee Resolution (updated w/ redline edits)
August 3rd Letter from Fatbeam LLC
August 7th Ordinance Comments received from PGE
August 10th Letter from Wireless Policy Group LLC on behalf of Verizon Wireless
August 11th Letter from Wireless Policy Group LLC on behalf of New Cingular
Wireless PCS, LLC ("AT&T")
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UTILITY SERVICESORDINANCE
Section 1.Title.
The ordinance will be known and may be referencedas 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 ofthe City’s rights-of-wayfor utility
purposes and conserve the limited physical capacityof those rights-of-wayheld in trust by the City
consistent withapplicable 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-wayand 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 Cityand its residents for permitting use of the
rights-of-wayby persons who generate revenue by placing, owning, controlling, using or operating
facilities therein or generate revenue for utility services;
D.Assure that all utility companies, persons and other entities owning,operating facilities, using
facilities,or providing services within the Citycomply with the ordinances, rules and all
regulations of the Cityheretofore or hereafter amended or adopted;
1.For the purposes of this Ordinance, all utility services owned oroperated 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 Citycan 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. Allow the City to enter into other or additional agreements with Utility Providers and
Operators, if the public’s interest is served, and to amendthe requirement of this Ordinance
and the City regulations, as new technology is developed;
2. Allow 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.
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A. The City has jurisdiction and exercises regulatory management over, all rights-of-waywithin
the City and provision of services, under authority of the City Charter and Oregonlaw.
B.The Cityhas jurisdiction and exercises regulatory management over each right-of-way
whether the Cityhas a fee, easement, or other legal interest in the right-of-way, and whether the
legal interest in the right-of-waywas obtained by grant, dedication, prescription, reservation,
condemnation, annexation, foreclosure or other means.
C.The exercise of jurisdiction and regulatory management of a right-of-wayby the Cityis not
official acceptance of the right-of-way and does not obligate the Cityto maintain or repair any part
of the right-of-way.
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, willbe 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 rights-of-wayand 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 incomeas may be levied,
imposed, or due from a utility operator, utility provider, franchiseeor licensee, its
customers or subscribers, or on account of the lease, sale, delivery, or transmission of
utility services.
B.The Cityhas 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 11b 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 Actof 1934, as amended, the Cable
Act, and the Telecommunications Act. If not defined in those statues, the words willbe 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.
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“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 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 cityof Woodburn, Oregon.
“Cityfacilities” means Cityor publicly ownedstructures 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 serviceincludes all forms of telephone services and voice, video, data or
informationtransport, 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 rights-of-way; (4) public communications systems; (5) over-the-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.
“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.
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“Federal Communications Commission” or “FCC” meansthe 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
leasesor other agreements allowing use of facilities to other utility operators or providers), or use
of utility facilitiesin the City, operation of a Communications Services orthe 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 Cityto a utility operatoror
utility providerpursuant to this Ordinance.
“Licensee” or “Utility Licensee”means any person that has a valid Utilitylicensed 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 entityor 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 itsexclusive use for internal communications or communications with other
government entities, and includes services provided by the state of Oregon pursuant to ORS
283.140. “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.
“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 cityfacilities, 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 cityproperty not generally
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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” meansFacilities owned or operatedfor 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 WirelessFacilities means a
facility that meets each of the following conditions per 47 C.F.R § 1.6002(l), 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 thanother 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 frequency in
excess ofthe 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.
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“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 serviceor communication
servicesto 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, toor 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 Cityare servedby those transmissionsand 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 RegistrationRequired. Every person that desires to use, operate or control utility
facilities,or provide utility servicesto customers within the Citywillregister with the Cityprior
to use, operation, control of utility facilities, or providing any utility services to anycustomer in
the City, in compliance with Ordinance No. 2399.Every person using, operating, controlling, or
providing utility services to customers within the Cityas of the effective date of this Ordinance
willobtain a Business Registrationwithin thirty (30)days ofthe effective date of this Ordinance.
Every person subject to this Ordinance willrenew and maintain a Business Registrationas required
in Woodburn’s Ordinances that areheretofore 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 aUtility Licensefrom the Cityprior 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 Citywhether or not customers within the Cityare servedby those transmissions and whether
or not the facilities used for transmission are owned by the service provider.
1.Every person that owns,or controls,provides utility services, orusesutilityfacilities in the
rights-of-wayasof the effective date of this Ordinance willapply for aUtility Licensefrom
the Citywithin thirty (30) days ofthe later of: (1) the effective date of this Ordinance, or
(2) the expiration of a valid agreementgranted by the City, unless a new agreementis
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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 willapply to the extent
such person provides multiple services, subject to applicable law.
B. Utility LicenseApplication. The license application willbe on a form provided by the City,
and willbe accompanied by any additional documents required by the applicationor 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 provisioned, and
other information necessary to determine the applicant’s ability tocomply with the terms of this
Ordinance.
C. Utility License Application & Renewal Fee. The application and renewal application willbe
accompanied by a nonrefundable fee or deposit set by resolution of the City Council.
D.Determination by City. The Citywillissue, within a reasonable period of time, a written
determination grantingor denying the Utility Licensein whole or in part. If the Utility Licenseis
denied, the written determination willinclude the reasons for denial. The Utility Licensewill be
evaluated based upon the provisions of this Ordinance, the information contained on the Utility
License application, the continuing capacityof the rights-of-wayto 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 Licenseapplication. Within thirty (30) days
of a change to the information contained in the license application, the Licensee willnotify the
City in writing of such change(s).
Commented \[RC1\]: Allows the City to be flexible.
F. Franchise and other Agreements. If the public interest warrants, as determined by the Cityin
its sole discretion,the City and any communications provider –including cable providers, utility
Commented \[RC2\]: Typo
operator or utility provider,ienxcluding 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 agreementmay
conflict with the terms of this Ordinancewith 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 franchiseor agreement.In the event of a conflict
between the express provisions of a franchiseor other agreementand this Ordinance, the franchise
or other agreementwillcontrol.
1.The provider requesting a franchise agreement willdeposit a non-refundable fee, as set by
resolution of theCity Council beforenegotiations occur.
G. Rights Granted.
1.The Utility Licensegranted hereunder willauthorize and permit the licensee, subject to the
provisions of the Cityregulations and ordinance and other applicable provisions ofthe
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City,state or federal law, in effect and as may be subsequently amended, to construct,
place, maintain, upgrade, repairand operate, controlor useutility facilities in the rights-
of-wayfor the term of the licensefor 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 willinform the City of such changes no later than thirty (30) days after
the change.
2.Any Utility Licensegranted pursuant to this Ordinance willnot convey equitable or legal
title in the rights-of-way andmay not be assigned or transferred except as permitted in
subsection L of this section.
Neither the issuance of the Utility Licensenor 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, theUtility License
granted pursuant to this Ordinance will be effective as of the date it is issued by the City or the
date services began, whichever comes first, and will have a term of five (5) calendar years
st
beginning: (1) January 1of the year in which the license took effect for licenses that took effect
stthst
between January 1and June 30; or (2) January 1of the year after the license took effect for
stst
licenses that become effective between July 1 and December 31.
I. Utility LicenseNonexclusive. No license granted pursuant to this section willconfer any
exclusive right, privilege, license or franchise to occupy or use the rights-of-wayfor delivery of
utility services or any other purpose. The Cityexpressly 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 willbe 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 CityRights. Nothing in theUtility Licensewillbe construed to prevent the City
from grading, paving, repairing and/or altering any rights-of-way, constructing, laying down,
repairing, relocating or removing Cityfacilities or establishing any other public work, utility or
improvement of any kind, including repairs, replacement or removal of any cityfacilities. If any
of licensee’s utility facilities interfere with the construction, repair, replacement, alteration or
removal of any rights-of-way, public work, cityutility, cityimprovement or cityfacility, except
those providing utility services in competition with a licensee, licensee’s facilities willbe removed
or relocated as provided in subsections C, D and E of Section 9, in a manner acceptable to the City
and consistent withCity standards, industry standard engineering and safety codes in effect at the
time the work is required.
K. Multiple Services.
1.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 Usagefee
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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 Usageuse fee, if any, owed to the Cityby another personusing the utility
operator’s facilities.
2.A utility operator that provides or transmits more than one utility service to customers in
the City maynot be required to obtain a separate Utility Licenseor franchise for each utility
service, but is required to file separatereports,remittancesand submit any Usage fees due
for each serviceprovided.
L. Transfer or Assignment. To the extent permitted by applicable state and federal laws, the
Utility Licenseewillobtain the written consent of the Cityprior 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 fullycooperate 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.
If the City approves such transfer or assignment, the transferee or assignee willbecome
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 leastthirty (30) days, but no more than ninety (90) days prior to the expiration
of a Utility Licensegranted pursuant to this section, a licensee seeking renewal of its license will
submit a license application to the City, including all informationrequired in subsection B of this
section and applicable feesfee required in subsection C of this section. The Citywillreview 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 it submits its application, the Citymay 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 Citywill consider the application and/or grant the license. If
the Cityrequires the licensee to cure or submit a plan to cure a violation, the Citywill 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.
1.Revocation or Termination of aUtility License. The City may terminate or revoke the
license granted pursuant to this Ordinancefor any of the following reasons:
a.Violation of any of the provisions of this Ordinance;
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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 Cityafter final determination
by the City, of the taxes, compensation, fees or costs;
e.Failure to restore the rights-of-wayafter 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.
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’shistory of compliance; and/or
e. The Licensee’scooperation in discovering, admitting and/or curing the violation.
3.Notice and Cure. The Citywillgive the Utility Licensee written notice of any apparent
violations before terminating a Utility License. The notice willinclude 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 Licenseehas 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
Licenseeis in the process of curing a violation or noncompliance, the Licenseemust
demonstrate that it acted promptly and continues to actively work on compliance. If the
Licensee doesnotrespond 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)daysof surrendering a Utility License, the licensee willfile 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.
A.Construction Codes. Utility facilities willbe constructed, installed, operated, repairedand
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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-wayas directed by the City
consistent with applicable citycodes, rules and regulations, in effect at the time of the work.A
utility operator, utility provider, licenseeor other person acting on its behalf willuse 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.
1.No person willperform any work on utility facilities within the rights-of-waywithout first
obtaining all required permits. The Citywillnot issue a permit for the construction,
installation, maintenance or repair of utility facilities unless the utility operator of the
facilities hasapplied for and received a validlicense, 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 contractor may perform work on its utility facilities without first obtaining
a permit from the City, provided that, to the extent reasonably feasible, it attempts 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
Commented \[RC3\]: To allow for emergency work as needed.
business day after commencing the emergency work.
Section 9. Location of Facilities.
A.Location of Facilities. Unless otherwise agreed to in writing by the City:
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 willbe installed underground in all areas of the Citywhere there are no
existing polesin the ROW,there is no spaceon existing poles in the ROW, or where the
only poles in the ROWare used only for high voltage lines (as defined below). This
requirement willnot 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 operatorfor which the utility operator has
written authorization to place above-ground.
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32. Whenever any existing electric utilities, cable facilities or communications facilities are
located underground within the ROWof the City, the utility operator with permission to
occupy the same ROWwillinstall allnew facilities undergroundat no cost to the City.
This requirement willnot 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 Cityreserves 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-wayby 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 willnot be located in area of restrictedsight 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-waywillbe consistent with Citycodes, ordinances, rulesand
regulations in effect and as may be subsequently amended.
Commented \[RC4\]: Allows flexibility.
C.Relocation of Utility Facilities. Unless otherwise agreed to in writing by the City:
1.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 underground, when requested to do so in writing by the City.
a.If relocation is required by the City, the City willbear no responsibility or incur
any costs, to provide or in any way secure alternate locations.
Formatted:Strikethrough
2.Nothing herein willbe deemed to preclude the utility operator fromseekingrequesting
reimbursementor compensation from a third party, pursuant to applicable laws,
Commented \[RC5\]: Edits per PGE request.
regulations, tariffsoragreements, provided that the utility operator willtimely comply with
the requirements of this section regardless of whether or not it has requested or received
such reimbursement or compensation.
3.The City maycoordinate the schedule for relocation of utility facilities and based on such
effort willprovide 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 willpay 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 utilityoperator 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.
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D.Removal of Unauthorized Facilities.
1.Unless otherwise agreed to in writing by the City,within thirty (30) days following written
notice from the Cityor 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-waywill, at its own expense, remove the facility and
restore the affected area.
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, franchiseor 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 Cityhas provided written
authorization for abandonment in place.
b.The facility has been abandoned and the Cityhas 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 Citysending written notice of such
violation, unless the City extends such time period in writing.
E.Removal by City.
1.The Cityretains the right and privilege to cut or move any utility, without notice, as the
City determines, at its sole discretionto be necessary, appropriate or useful in response to
a public health or safety emergency. The Citywill 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 providethe utility operator with notice prior tocutting or moving
facilities. If prior notice is not possible, the Citywill provide such noticeas 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 Citymay remove the facility using qualified personnel or contractors
consistent with applicable state 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 Cityin removing the facility and obtaining reimbursement. Upon
receipt of aninvoice from the City, the utility operator willreimburse the Cityfor the costs
the Cityincurred within thirty (30) days. The obligation to remove willsurvive the
termination of the license or franchise.
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3.The Citywillnot 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
9subsections B, C or D of Section 9or undergrounding its facilities as required by
subsection A of Section 9, or resulting from the utility operator’s failure to remove,
relocate, alter or underground its facilities as required by those subsectionsthis Section 9,
unless such damage arises directly from the City’s or it’s contractor’s negligence or willful
Commented \[RC6\]: Edits made per PGE request
misconduct.
F. Engineering Record Drawings. The utility operator willprovide the Citywith two complete
sets of record drawingsin a form acceptable to the Cityshowing the location of all its utility
facilities after initial construction if such plan changed during construction.The utility operator
willprovide updated complete sets of as built plans upon request of the City, but not more than
once per year.
G. Utility operator, Utility provider and Utility Licenseewillprovide, at no cost to the City, a
comprehensive map showing the location of any facility in the City. Such map willbe 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 1if any
changes occurred during the prior year. The City may also request and will be provide the map,
Commented \[RC7\]: Amended with consultation of GIS/CAD
at no cost to the City, upon request, no more than once per year.
City staff
Section 10. Leased Capacity.
A utility operator may lease capacityon or in its facilitiestoothers, provided thatthe utility
operator requires and has verifiedwith 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, theutility operator willprovide a complete listwith the name, business address
and contact informationof 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.
Section 11. Maintenance.
A. Every utility operator willinstall and maintain all facilities in a manner that complies with
applicable federal, state and locallaws, 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, after written notice from the Cityof the need for repair ormaintenanceas required in
subsection A of this section,a utility operator fails to repair and maintain facilities as requested by
the Cityand by the date reasonably established by the City, the Citymayperform 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 aninvoice from
the City, the utility operator willreimburse the Cityfor the costs the Cityincurred within thirty
(30) days.
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Section 12. Vacation.
If the Cityvacates any ROW, or portion thereof, that a utility operator uses, the utility operator
will, at its own expense, remove its facilities from the ROWunless the Cityreserves a public utility
easement, which the Citywillmake 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) daysafter a ROWis vacated, or as otherwise directed or
agreed to in writing by the City, the Citymay 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 Cityfor the costs the City incurred within thirty (30) days.
Section 13. Usage Fee.
A. Except as set forth in subsection Bof this section, every person that owns utility facilities in
the City’s rights-of-wayand 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
provisionthe utilityservicesand every person that provides utility services within the City, will
pay the usage feefor every utility service provided in the amount determinedby resolution of the
City Council.
B.A utility operator whose only facilities in the ROWare facilities mounted on above-ground
structures within the ROW, which structures are owned by another person, and with no facilities
strung between such structures 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),willpay 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, withinthirty (30)days after the
end of each calendar quarter and willbe accompanied by information sufficient to illustrate the
calculation of the amount payable.
C. No acceptance of any payment willbe construed as accord that the amount paid is in fact the
correct amount, nor willsuch acceptance of payment be construed as a release of any claim the
City may have for further or additional sums payable.
D. Usage feepayments required by this section willbe 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 Usagefeeset 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 paymentwillbe 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.
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F. The calculation of the Usagefeerequired by this section willbe subject to all applicable
limitations imposed by federal or state law in effect and as may be subsequently amended.
G. The Cityreserves the right to enact other fees and taxes applicable to the utility providers,
utility operators and licenseesubject 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 bythis Ordinance
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.
1.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:
a.First occurrence during any one calendar year; Tenpercent (10%) of the amount owed,
or Twenty-five dollars ($25.00), whichever is greater.
b.Second occurrence during any one calendar year; Fifteen percent (15%) of the amount
owed, or Fifty dollars ($50.00), whichever is greater.
c.Third occurrence during any one calendar year; Twenty percent (20%) or the amount
owed, or Seventy-five dollars ($75.00), whichever is greater.
d.Fourth occurrence during any one calendar year; Twenty-five percent (25%) of the
amount owed, or One hundred dollars ($100.00), whichever is greater.
2.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.
3.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.
4.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, willhave the authority to reduce or waive the
penalties and interest due under Section 14.
Section 15.Auditsand 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.EveryUtility 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
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requirements of this Ordinance, any franchise agreements or other agreements, if any,
including but not limited to payment of any applicableBusiness Registrationfee, licensing
fee, usage fee, attachment fee,franchise feeor privilege taxes.
2.Every Utility Operator,Utility Provider and Utility Licensee will make available for
inspection by the Cityat reasonable times and intervals all maps, records, books, diagrams,
plans and other documents, maintained by the utility operator withrespect to its facilities
or use of facilities, within the rights-of-way. Access willbe 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 theUtility
Licensee, Utility Operator or Utility Provider demonstrate that therehas been underpaid the usage
fee,licensing fee, attachment feeor franchise feeor any other fee or paymentby twopercent (2%)
or more in any one(1)year, thelicensee,utility operator, or utility provider willreimburse the
Cityfor the cost of the audit,in addition to any interest owed pursuant to Section 14or as specified
inother agreements or franchises with the City.
C.Any underpayment, including any interest or audit cost reimbursement, willbe paid within
thirty (30) days of the City’s noticeof 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.
A.Insurance.
1.All utility operatorswillmaintain 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.Threemillion dollars ($3,000,000.00) for bodily injury or death to each person;
ii. Threemillion dollars ($3,000,000.00) for property damage resulting from any one
accident; and
iii. Threemillion dollars ($3,000,000.00) for all other types of liability.
b.Commercial Automobileliability insurance for owned, non-owned and hired vehicles
with a limit of one million dollars ($1,000,000.00) for each person and threemillion
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.
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2.The limits of the insurance willbe subject to statutory changes as to maximum limits of
liability imposed on municipalities of the state of Oregon. The insurance willbe without
prejudice to coverage otherwise existing and willname, or the certificate of insurance will
name, with the exception of worker’s compensation, as additional insureds the Cityand its
officers, agents, and employees. The coverage must apply as to claims between insureds
on the policy. The insurance willnot 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 willobtaina replacement policy that complies with the terms ofthis sectionand
provide the Citywith a replacement certificate of insurance. The utility operator will
maintain continuous uninterrupted 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 willmaintain on file with the Citya 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 willprovide 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 franchiseor license, if applicable, and compliance with the terms of
this Ordinance, including any costs, expenses, damages or loss the Citypays 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.
1.Each utility licenseewilldefend, indemnify and hold the Cityand its officers, employees,
agents andrepresentatives 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, orother 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,willconstitute 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 Citywill
notify the utility operator and provide the utility operator with an opportunity to provide
defense regarding any such claim.
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2.Every utility licenseewillalso indemnify the Cityfor any damages, claims, additional costs
or expenses assessed against or payable by the Cityarising 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.
EveryUtility licensee,utility operatorand utility providerwillcomply 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 Licensegranted under this Ordinance.
Section 18. Confidential/Proprietary Information.
If any personis required by this Ordinance to provide books, records, maps or information to the
Citythat the personreasonably 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 Citywilltake reasonable steps to protect the confidential
information to the extent permitted by Oregon Public Records Laws. In the event the Cityreceives
a public records request to inspect any confidential informationand the Citydetermines that it will
be necessary to reveal the confidential information,to the extent reasonably possible the Citywill
notify the person that submitted theconfidentialinformation of the records request prior to
releasing the confidential information. The Citywillnot be required to incur any costs to protect
any confidential information,other thanthe City’s routine internal procedures for complying with
the Oregon Public Records Law.
Section 19. Penaltiesand Violations.
A.Any person found in violation of any of the provision of this Ordinance or the Utility License
willbe 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. A violation willbe 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 willbe construed as limiting any judicial or other remedies the City
may have at law or in equity, for enforcement of this Ordinance, including those Civil Infractions
that may be imposed under Ordinance 1998.
C. The City or its designee, in their sole discretion, willhave the authority to reduce or waive
the penalties and interest due under this subsection 19.
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Section 20. Severability and Preemption.
A.The provisions of this Ordinance willbe interpreted to be consistent with applicable federal
and state law, and willbe 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 Ordinanceis 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 willnot be affected thereby but willbe deemed as a
separate, distinct and independent provision, and such holding willnot affect the validity of the
remaining portions hereof, and each remaining section, subsection, clause, phrase, term, provision,
condition, covenant and portion of this Ordinance willbe 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 willbe preempted only to the extent required by law and any portion not
preempted willsurvive. 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 willapply to all existing franchise agreements
granted to utility operators and utility providers by the City.
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WHEREAS, the City of Woodburn has constitutional and charter authority to manage its
rights-of-way and utility usage within the City; and
WHEREAS, the Woodburn City Council adopted an ordinance regulating utilities operating
within the City and exercising the City’s authority to secure compensation to the City and its
residents for utility use;
WHEREAS, per the ordinance the Woodburn Council shall by resolution establish Utility
Licensing fees;
WHEREAS, per the ordinance the Woodburn Council shall by resolution establish a
Franchise negotiations fee; and
WHEREAS, per ordinance the Woodburn City Council shall by resolution establish Usage
fees.
Now, Therefore, be it Resolved by the City of Woodburn, Oregon:
Section 1: The Utility License application fee shall be $300.00 (excluding Small Cell Wireless
Facilities) and shall include an initial five-year license (if approved);
Section 2: Utility License application fee for Small Cell Wireless Facilities, as they involve
both access to rights-of-way and vertical infrastructure shall be $500.00 for up to 5 sites and
$100.00 for each additional site, plus any additional reasonable fees the City must incur for
outside expertise to evaluate such applications, including compliance with the Federal
Communication Commission “RF” standards;
Section 3: The Utility License renewal fee (excluding Small Cell Wireless Facilities) shall be
$250.00 for a five-year license;
Section 4: The refundable franchise negotiation deposit shall be $5,000.00;
Section 5: The usage fee shall be as follows, to the extent permitted under applicable law;
Service Usage Fee Rate
Electric _Provides services to customer within Woodburn 5% of gross revenue
via owned or non-owned facilities located within the
City’s ROW
Natural GasProviding services to customer within 5% of gross revenue
Woodburn via owned or non-owned facilities located
within the City’s ROW.
Cable Television 5% of gross revenue
Communications* (other than Small Cell Wireless**7% of gross revenue
Facilities) Providing services to customer within
Woodburn via owned or non-owned facilities located
within the City’s ROW
Attachment fee (other than Small Cell Wireless**Facilities) $5,000 per attachment per year
Small Cell Wireless**Communications Facilities $270.00 per attachment per year
Page 1of 2 – Resolution No.
24
Usage of owned or non-owned facilities the rights-of-way $3.00 per linear foot of Utility Facilities
for purposes other than generating revenueor providing in the rights-of-way or a minimum
services to customerswithin the City.annual fee of $5,000.00, whichever is
greater. The per-linear-foot fee and the
minimum fee shall increase 3%
st
annually on July 1 of each year,
beginning July 1, 2022
“Gross Revenue” shall have the meaning defined in the Utility Services Ordinance.
Section 6: The annual attachment fee (excluding Small Cell Wireless Facilities) shall be
st
$5,000.00 per attachment. The attachment fee shall increase 3% annual on July 1 of each year,
beginning on July 1, 2022 and
Section 7: The annual attachment fee for Small Cell Wireless Facilities shall be the fair
market value of such attachments, but until the Federal Communications Commission
September 26, 2018 small cell order is overturned, City staff are directed to establish what the
reasonable approximation of costs for such attachment are, but it no case less than $270.00 per
attachment, per year.
*Communications shall have the meaning defined in Woodburn’s Utility Service Ordinance
and shall include telecommunication utilities, long distance providers, private networks,
wireless, wireline, VoIP, ILEC, CLEC, inter and intrastate.
**Small Cell Wireless Facilities shall have the meaning defined in Woodburn’s Utility
Service Ordinance.
Introduced and adopted by the City Council on _________.
This resolution is effective on October 1, 2020.
Mayor
ATTEST:APPROVED AS TO FORM:
City Recorder City Attorney
Page 2of 2 – Resolution No.
25
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26
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27
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28
COMMENTS FROM PGE
Received Aug. 7, 2020
UTILITY SERVICESORDINANCE
Section 1.Title.
The ordinance will be known and may be referencedas 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 ofthe City’s rights-of-wayfor utility
purposes and conserve the limited physical capacityof those rights-of-wayheld in trust by the City
consistent withapplicable 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-wayand 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 Cityand its residents for permitting use of the
rights-of-wayby persons who generate revenue by placing, owning, controlling, using or operating
facilities therein or generate revenue for utility services;
D.Assure that all utility companies, persons and other entities owning,operating facilities, using
facilities,or providing services within the Citycomply with the ordinances, rules and all
regulations of the Cityheretofore or hereafter amended or adopted;
1.For the purposes of this Ordinance, all utility services owned oroperated 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 Citycan 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. Allow the City to enter into other or additional agreements with Utility Providers and
Operators, if the public’s interest is served, and to amendthe requirement of this Ordinance
and the City regulations, as new technology is developed;
2. Allow 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.
29
A. The City has jurisdiction and exercises regulatory management over, all rights-of-waywithin
the City and provision of services, under authority of the City Charter and Oregonlaw.
B.The Cityhas jurisdiction and exercises regulatory management over each right-of-way
whether the Cityhas a fee, easement, or other legal interest in the right-of-way, and whether the
legal interest in the right-of-waywas obtained by grant, dedication, prescription, reservation,
condemnation, annexation, foreclosure or other means.
C.The exercise of jurisdiction and regulatory management of a right-of-wayby the Cityis not
official acceptance of the right-of-way anddoes not obligate the Cityto maintain or repair any part
of the right-of-way.
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, willbe 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 rights-of-wayand 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 incomeas may belevied,
imposed, or due from a utility operator, utility provider, franchiseeor licensee, its
customers or subscribers, or on account of the lease, sale, delivery, or transmission of
utility services.
B.The Cityhas 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 11b 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 Ordinanceare 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
willbe given the meaning set forth in the Communications Actof 1934, as amended, the Cable
Act, and the Telecommunications Act. If not defined in those statues, the words willbe 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.
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“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 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 cityof Woodburn, an Oregon municipal corporation, and individuals authorized
to act on the City’s behalf.
“City council” means the elected governing body of the cityof Woodburn, Oregon.
“Cityfacilities” means Cityor publicly ownedstructures 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 rights-of-wayor private communication system services that utilize the public rights-of-
way only for the purposes of providing other utility servicesthat are covered by this ordinance or
Commented \[CL1\]: PGE’s electric system requires the
franchise agreement; (4) public communications systems; (5) over-the-air radio or television
transmission of informationsince our metering system is wireless
broadcasting to the public-at-large from facilities licensed by the Federal Communications
and many of our substations are remotely operated. We are not
generating any gross revenue from these private communication
Commission or any successor thereto; and (6) direct-to-home satellite service within the meaning
systems/servicesthough.
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.
“Days” mean calendar days unless otherwise specified.
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“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” meansthe 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
leasesor other agreements allowing use of facilities to other utility operators or providers), or use
of utility facilitiesin 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.Gross Revenues
do not include proceeds from the sale of bonds, mortgages or other evidence of indebtedness,
securities or stocks, any amounts collected from utility customers that are subsequently passed
through to one or more third party entities pursuant to law or a tariff, or sales at wholesale by one
public utility to another of electrical energy when the utility purchasing such electrical energy is
not the ultimate customer. Gross Revenue also does not include revenue from joint pole use. For
purposes of this Ordinance, revenue from joint pole use includes any revenue collected by a utility
from other franchisees, permittees, or licensees of theCity for the right to attach wires or cable to
utility’s poles or places them in utility’s conduits. For purposes of this Ordinance, revenue from
joint pole use does not include rental or other similar revenue collected by utility from other
franchises, permittees, or licensees of the City for the right to pole attachments for Small Cell
Commented \[CL2\]: As we discussed on our call, we find that
Wireless Facilities.
adding more specificity around the definition of Gross Revenue
significantly reduces to the cost both parties of administration and
auditing the fees owed/paid to the City. This proposed language is
“License” or “Utility License” means the authorization granted by the Cityto a utility operatoror
borrowed from the recently passed Franchise in Tualatin.
utility provider pursuant to this Ordinance.
“Licensee” or “Utility Licensee” means any person that has a valid Utilitylicensed 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 entityor 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
283.140. “Public communications system” does not include any system used for sale or resale,
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including trade, barter or other exchange of value, of communications services or capacity on the
system, directly or indirectly, to any person.
“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 cityfacilities, 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 cityproperty 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” meansFacilities 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 CellWireless Facilities means a
facility that meets each of the following conditions per 47 C.F.R § 1.6002(l), 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 thanother 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 frequency in
excess ofthe applicable safety standards specified in 47 C.F.R. §
1.1307(b).
“State” means the state of Oregon.
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33
“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 serviceor communication
servicesto 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 thetransmission or provision of any of these services through the City whether
or not customerswithin the Cityare servedby those transmissionsand 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 RegistrationRequired. Every person that desires to use, operate or control utility
facilities,or provide utility services to customers within the Citywillregister with the Cityprior
to use, operation, control of utility facilities, or providing any utility services to anycustomer in
the City, in compliance with Ordinance No. 2399.Every person using, operating, controlling, or
providing utility servicesto customers within the Cityas of the effective date of this Ordinance
willobtain a Business Registrationwithin thirty (30)days of the effective date of this Ordinance.
Every person subject to this Ordinance willrenew and maintain a Business Registrationas required
in Woodburn’s Ordinances that areheretofore 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.
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A. License Required.
Except those utility operators and utility providers with a valid franchise or other valid agreement
from the City, every person willobtain a Utility Licensefrom the Cityprior 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.
1.Every person that owns,or controls,provides utility services, oruses utilityfacilities in the
rights-of-wayasof the effective date of this Ordinance will apply for a Utility Licensefrom
the Citywithin thirty (30) days ofthe 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 willapply to the extent
such person provides multiple services, subject to applicable law.
B.Utility LicenseApplication. The license application willbe on a form provided by the City,
and willbe accompanied by any additional documents required by the applicationor 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 provisioned, and
other information necessary to determine the applicant’s ability tocomply with the terms of this
Ordinance.
C.Utility License Application & Renewal Fee. The application and renewal application willbe
accompanied by a nonrefundable fee or deposit set by resolution of the City Council.
D.Determination by City. The Citywillissue, within a reasonable period of time, a written
determination granting or denying the Utility Licensein whole or in part. If the Utility Licenseis
denied, the written determination willinclude the reasons for denial. The Utility Licensewill be
evaluated based upon the provisions of this Ordinance, the information contained on the Utility
License application, the continuing capacityof the rights-of-wayto 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 Licenseapplication. Within thirty (30) days
of a change to the information contained in the license application, the Licensee willnotify the
City in writing of such change(s).
F. Franchise Agreements. If the public interest warrants, as determined by the Cityin its sole
discretion, the City and any communications provider – including cable providers, utility operator
or utility provider, excluding Small Cell wireless providers,may enter into a written franchise or
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35
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 agreementmay conflict with
the terms of this Ordinance with the review and approval of City Council. The franchisee willbe
subject to the provisions of this Ordinance to the extent such provisionsare 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 franchiseor other agreementand this Ordinance, the franchiseor other
agreementwillcontrol.
1.The provider requesting a franchise agreement willdeposit a non-refundable fee, as set by
Commented \[CL3\]: This is a highly unusual requirement,
resolution of theCity Council beforenegotiations occur.
something that no other City in our service territory hasever
required. We view franchise agreements no different than any other
commercial contact that we negotiate and enter into, whereby each
G. Rights Granted.
party bears its own costs (usually just internal costs) associated with
1.The Utility Licensegranted hereunder willauthorize and permit the licensee, subject to the
such negotiations. Our experience has been that the costs associated
with negotiating our franchise agreements with Woodburn
provisions of the Cityregulations and ordinance and other applicable provisions ofthe
historically have been negligible and result in only minimal internal
City,state or federal law, in effect and as may be subsequently amended, to construct,
costs (for both parties). Perhaps a compromise would be to say
“Unless otherwise agreed to in writing by the City, the provider
place, maintain, upgrade, repairand operate, controlor useutility facilities in the rights-
requesting a franchise agreement will deposit…”
of-wayfor the term of the licensefor 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 willinform the City of such changes no later than thirty (30) days after
the change.
2.Any Utility Licensegranted pursuant to this Ordinance willnot convey equitable or legal
title in the rights-of-way andmay not be assigned or transferred except as permitted in
subsection L of this section.
Neither the issuance of the Utility Licensenor 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, theUtility License
granted pursuant to this Ordinance will be effective as of the date it is issued by the City or the
date services began, whichever comes first, and will have a term of five (5) calendar years
st
beginning: (1) January 1of the year in which the license took effect for licenses that took effect
stthst
between January 1and June 30; or (2) January 1of the year after the license took effect for
stst
licenses that become effective between July 1 and December 31.
I. Utility LicenseNonexclusive. No license granted pursuant to this section willconfer any
exclusive right, privilege, license or franchise to occupy or use the rights-of-wayfor delivery of
utility services or any other purpose. The Cityexpressly 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 willbe deemed to grant, convey, create, or vest in licensee a
real property interest in land, including any fee, leasehold interest or easement.
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36
J. Reservation of CityRights. Nothing in theUtility Licensewillbe construed to prevent the City
from grading, paving, repairing and/or altering any rights-of-way, constructing, laying down,
repairing, relocating or removing Cityfacilities or establishing any other public work, utility or
improvement of any kind, including repairs, replacement or removal of any cityfacilities. If any
of licensee’s utility facilities interfere with the construction, repair, replacement, alteration or
removal of any rights-of-way, public work, cityutility, cityimprovement or cityfacility, except
those providing utility services in competition with a licensee, licensee’s facilities willbe removed
or relocated as provided in subsections C, D and E of Section 9, in a manner acceptable to the City
and consistent withCity standards, industry standard engineering and safety codesin effect at the
time the work is required.
K. Multiple Services.
1.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 andUsagefee
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 Usageuse fee, if any, owed to the Cityby another personusing the utility
operator’s facilities.
2.A utility operator that provides or transmits more than one utility service to customers in
the City maynot be required to obtain a separate Utility Licenseor franchise for each utility
service, but is required to file separatereports,remittancesand submit any Usage fees due
for each serviceprovided.
L. Transfer or Assignment. To the extent permitted by applicable state and federal laws, the
Utility Licenseewillobtain the written consent of the Cityprior 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 UtilityLicensee requesting the transfer or assignment will fullycooperate 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.
If the City approves such transfer or assignment, the transferee or assignee willbecome
responsible for fulfilling all obligations under theUtility License. A transfer or assignment
of a license does not extend the term ofthe license.
M. Renewal. At least thirty (30) days, but no more than ninety (90) days prior to the expiration
of a Utility Licensegranted 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
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37
section and applicable feesfee required in subsection C of this section. The Citywillreview 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 it submits its application, the Citymay 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 Citywill consider the application and/or grant the license. If
the Cityrequires the licensee to cure or submit a plan to cure a violation, the Citywill 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.
1.Revocation or Termination of a Utility License. The City may terminate or revoke the
license granted pursuant to this Ordinancefor 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 Cityafter final determination
by the City, of the taxes, compensation, fees or costs;
e.Failure to restore the rights-of-wayafter 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.
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’shistory of compliance; and/or
e. The Licensee’scooperation in discovering, admitting and/or curing the violation.
3.Notice and Cure. The Citywillgive the Utility Licensee written notice of any apparent
violations before terminating a Utility License. The notice willinclude 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 Licenseehas 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
Licenseeis in the process of curing a violation or noncompliance, the Licenseemust
demonstrate that it acted promptly and continues to actively work on compliance. If the
Licensee doesnotrespond or if the City determines that the Licensee’s response is
inadequate, the City may revoke and/or terminate the Utility License.
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38
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)daysof surrendering a Utility License, the licensee willfile 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 commence and diligently pursue removalewithin 60 days,
any and all facilities from the City and no longerprovides Utility Services, as
Commented \[CL4\]: It would be technically impossible to
defined in this ordinance.
remove our entire electric infrastructure in the entire City within 60
days. We also have a regulatory mandate to provide electric power
to the residents and businesses in the City. Perhaps there is a
Section 8. Construction and Restoration.
process by which the parties could agree to a different schedule in
A.Construction Codes. Utility facilities willbe constructed, installed, operated, repairedand
this very remote circumstance.
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-wayas directed by the City
consistent with applicable citycodes, rules and regulations, in effect at the time of the work.A
utility operator, utility provider, licenseeor other person acting on its behalf willuse 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.
Commented \[CL5\]: There are emergency circumstances that
1.Except in cases of emergencywhen obtaining a permit prior to commencing the work in
require us to take immediate action prior to obtaining a permit to
the rights-of-way is impracticable, Nno person willperform any work on utility facilities
either prevent injury to people or property or to restore power (e.g.,
car accident that knocks over a pole, leaving a live wire laying
within the rights-of-waywithout first obtaining all required permits. In cases of an
across the street or an outage during an ice storm that leaves City
emergency when obtaining a permit prior to commencing the work in the rights-of-way is
offices closed).
impracticable, such person shall promptly obtain all requisite permits as soon as
practicable.The Citywillnot issue a permit for the construction, installation, maintenance
or repair of utility facilities unless the utility operator of the facilities hasapplied 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.
Section 9.Location of Facilities.
A.Location of Facilities. Unless otherwise agreed to in writing by the City:
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.
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2. Utility facilities willbe installed underground in all areas of the Citywhere there are no
existing polesin the ROW,there is no spaceon existing poles in the ROW, or where the
only poles in the ROWare used only for high voltage lines (as defined below). This
requirement willnot 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 operatorfor which the utility operator hads
Commented \[CL6\]: Much of our authority to place these types
written authorization to place above-groundwhen such facilities were installed.
of facilities above ground was granted through the past franchises.
If the franchise expires, we would like assurances that those
facilities are still in the proper location since they were authorized at
2. Whenever any existing electric utilities, cable facilities or communications facilities are
the time of installation.
located underground within the ROWof the City, the utility operator with permission to
occupy the same ROWwillinstall allnew facilities undergroundat no cost to the City,
Commented \[CL7\]: Other cities have wanted the discretion to
unless otherwise agreed to in writing by the City. This requirement willnot apply to
help subsidize the costs of undergroundingin order to keep the costs
facilities used for transmission of electric energy at nominal voltages in excess of thirty-
to residents lower.
five thousand (35,000) volts (“high voltage lines”) or to antennas, pedestals, cabinets or
other above-ground equipment of any utility operator. The Cityreserves the right to require
written approval of the location of any such above-ground equipment in the ROWat the
time such equipment is installed.
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-wayby 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 willnot be located in area of restrictedsight 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-waywillbe consistent with Citycodes, ordinances, rulesand
regulations in effect and as may be subsequently amended.
C.Relocation of Utility Facilities.
1.A utility operator will, at no cost to the Cityunless otherwise agreed to in writing by the
Commented \[CL8\]: Other cities have wanted to reserve the
City, temporarily or permanently remove, relocate, change or alter the position of any
flexibility to agree to pay for certain relocation costs, in particular
utility facility within the ROW, including relocation of aerial facilities underground, when
for forced undergrounding situations.
requested to do so in writing by the Cityfor a City project.
a.If relocation is required by the City, the City willbear no responsibility or incur
any costs, to provide or in any way secure alternate locations.
2.Nothing herein willbe deemed to preclude the utility operator from requesting seeking
reimbursement or compensation from a third party, pursuant to applicable laws,
regulations, tariffsoragreements, provided that the utility operator willtimely comply with
the requirements of this section regardless of whether or not it has requested or received
such reimbursement or compensation.
3.The City maycoordinate the schedule for relocation of utility facilities and based on such
effort willprovide 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 bythe City, the utility operator willpay all costs incurred by
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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 andfederal 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 willreimburse the City for the costs the City incurred
within thirty (30) days.
4.The City will cooperate with the utilityoperator 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
Commented \[CL9\]: “Otherwise assist” could be read to be in
relocation of is facilities to location not in the control of the City.
conflict with the cooperation obligation in the first sentence.
D.Removal of Unauthorized Facilities.
1.Unless otherwise agreed to in writing by the City, within thirty (30) days following written
notice from the Cityor 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-waywill, at its own expense, remove the facility and
restore the affected area.
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 Cityunder 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 Cityhas provided written
authorization for abandonment in place.
b.The facility has been abandoned and the Cityhas 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 Citysending written notice of such
Commented \[CL10\]: Certain scopes of work may take longer
violation(or in the event the cure cannot be completedwithin thirty (30) days, the
than 30 days to complete.
utility operator shall have commencedto cure and be diligently pursuing completion of
such cure), unless the City extends such time period in writing.
E.Removal by City.
1.The Cityretains the right and privilege to cut or move any utility, without notice, as the
City determines, at its sole discretionto be necessary, appropriate or useful in response to
a public health or safety emergency. The Citywill 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 providethe utility operator with notice prior tocutting or moving
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facilities. If prior notice is not possible, the Citywill provide such noticeas 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
Ordinanceand after receiving notice from the City, the Citymay remove the facility using
qualified personnel or contractors consistent with applicable state and federal safety laws
and regulations, and the utility operator willbe responsible for paying the full cost of the
removal and any administrative costs incurred by the Cityin removing the facility and
obtaining reimbursement. Upon receipt of aninvoice from the City, the utility operator will
reimburse the Cityfor the costs the Cityincurred within thirty (30) days. The obligation to
remove willsurvive the termination of the license or franchise.
3.The Citywillnot 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 subsections B,
C or D ofthisSection 9or undergrounding its facilities as required by subsection A of
Section 9, or resulting from the utility operator’s failure to remove, relocate,alter or
underground its facilities as required by those subsectionsthis Section 9, unless such
damage arises directly from the City’sor it’s contractor’snegligence or willful misconduct.
Commented \[CL11\]: As more information, including drawings,
F. Engineering Record Drawings. The utility operator willprovide the Citywith two a complete
move toward digital mediums, it seems redundant to require two
sets of record drawingsin a form acceptable to the Cityshowing the location of all its utility
copies and will likelybog down your systems to have duplicative
digital copies.
facilities after initial construction if such plan changed during construction.The utility operator
willprovide updated complete sets of as built plans upon request of the City, but not more than
once per year.
G. Utility operator, Utility provider and Utility Licenseewillprovide, at no cost to the City, a
comprehensive map showing the location of any facility in the City. Such map willbe 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.
Section 10. Leased Capacity.
A utility operator may lease capacityon or in its facilitiesto others, provided thatthe utility
Commented \[CL12\]: We require all of our pole attacheesto
operator requires, through contract or otherwise,and has verifiedwith the City, that the proposed
make a legal representation tous in their contract with us that they
lessor has obtained proper authority from the City prior to leasing capacity or allowing use of its
have all required legal authority to operate. We also provide a list of
all attachees on poles located in the City. We believe enforcement
facilities. Upon request, at no cost to the City, the utility operator willprovide a complete listwith
of this legal requirement should be the responsibility of the City.
the name, business address and contact informationof any lessee.If requested by the City, the
Commented \[CL13\]: Just as PGE has an obligation under our
utility operator will also provide exact details of any attachment by lessee.A utility operator is
franchise and under this ordinanceto provide information about our
not required to provide such information if disclosure is expressly prohibited by applicable law.
facilities, we believeitis more appropriate for the City to seek this
information from the owner/operator of each specificattachment
(which they too are obligated under franchise or this ordinance to
Section 11. Maintenance.
provide that information). Our information about attachments is
often in flux and can be stale since the owner/operator is often the
A. Every utility operator willinstall and maintain all facilities in a manner that complies with
entity who is doing the work on that attachment itselfrather than us.
applicable federal, state and local laws, rules, regulations and policies. The utility operator will, at
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its own expense, repair and maintain facilities from time to time as may be necessary to accomplish
this purpose.
B. If, after written notice from the City of the need for repair or maintenanceas required in
subsection A of this section, a utility operator fails to repair and maintain facilities as requested by
the Cityand by the date reasonably established by the City, the Citymay 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 aninvoice from
the City, the utility operator willreimburse the Cityfor the costs the Cityincurred within thirty
(30) days.
Section 12. Vacation.
If the Cityvacates any ROW, or portion thereof, that a utility operator uses, the utility operator
will, at its own expense, remove its facilities from the ROWunless the Cityreserves a public utility
easement, which the Citywillmake 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 ROWis vacated(or if removal cannot be
completed within thirty (30) days, utility operator fails to commence and diligently pursue
completion of such removal), 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 willreimburse the Cityfor the costs the Cityincurred
within thirty (30) days.
Section 13. Usage Fee.
A. Except as set forth in subsection Bof this section, every person that owns utility facilities in
the City’s rights-of-wayand 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
provisionthe utilityservicesand every person that provides utility services within the City, will
pay theusage feefor every utility service provided in the amount determinedby resolution of the
City Council.
B.A utility operator whose only facilities in the ROWare facilities mounted on above-ground
structures within the ROW, which structures are owned by another person, and with no facilities
strung between such structures 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),willpay 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, withinthirty (30)days after the
end of each calendar quarter andwillbe accompanied by information sufficient to illustrate the
calculation of the amount payable.
C. No acceptance of any payment willbe construed as accord that the amount paid is in fact the
correct amount, nor willsuch acceptance of payment be construed as a release of any claim the
City may have for further or additional sums payable.
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D. Usagefeepayments required by this section willbe 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 Usagefeeset 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 paymentwillbe 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 Usagefeerequired by this section willbe subject to all applicable
limitations imposed by federal or state law in effect and as may be subsequently amended.
G. The Cityreserves the right to enact other fees and taxes applicable to the utility providers,
utility operators and licenseesubject 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 bythis Ordinance
Commented \[CL14\]: We believe these penalties are excessive
Section 14. Penalties and Interest on Usage Fee
and likely unenforceable under Oregon law, in particular for
Penalties and iInterest imposed by this section are in addition to any penalties that may be
unintentional wrongdoing. We suggest limiting the interest
payments to the maximum interest permitted by Oregon law and rely
assessed under other ordinances or regulations of the City.
on the penalty provision insubpart 2 and inSection 19.
1.Any person who has not submitted the required remittance forms or remitted the correct
fees when due as provided in Section 13 willpay City a penalty listed below in addition to
the amount dueinterest on any past due amounts in the amount of nine percent (9%) per
annum, or such maximum amount permitted by law.:
a.First occurrence during any one calendar year; Ten percent (10%) of the amount owed,
or Twenty-five dollars ($25.00), whichever is greater.
b.Second occurrence during any one calendar year; Fifteen percent (15%) of the amount
owed, or Fifty dollars ($50.00), whichever is greater.
c.Third occurrence during any one calendar year; Twenty percent (20%) or the amount
owed, or Seventy-five dollars ($75.00), whichever is greater.
d.Fourth occurrence during any one calendar year; Twenty-five percent (25%) of the
amount owed, or One hundred dollars ($100.00), whichever is greater.
2.If the City determines that the nonpayment of any remittance due under this section is due
to fraud or intent to wrongfully evade the provisions hereof, an additionalpenalty 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 sSection
14.
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3.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),
Commented \[CL15\]: We suggest one interest rate calculation
from the date on which the remittance first became delinquent, until received by the City.
for past due amounts.
4.3.Everypenalty imposed, and such interest as itaccrues 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, willhave the authority to reduce or waive the
penalties and interest due under Section 14.
Section 15. Auditsand 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.EveryUtility 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 applicableBusiness Registrationfee, licensing
fee, usage fee, attachment fee,franchise feeor privilege taxes.
2.Every Utility Operator,Utility Provider and Utility Licensee will make available for
Commented \[CL16\]: For the safety and security of our electric
inspection by the Cityat reasonable times and intervals all maps, records, books, diagrams,
system/grid, we cannot provide ALL information about our
plans and other documents, maintained by the utility operator with respect to its facilities
facilities. We will provide sufficient information to verify
compliance with the ordinance/franchise though.
or use of facilities, within the rights-of-way. Access willbe 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 theUtility
Licensee, Utility Operator or Utility Provider demonstrate that there has been underpaid the usage
fee,licensing fee, attachment feeor franchise feeor any other fee or paymentby twopercent (2%)
or more in any one(1)year, thelicensee,utility operator, or utility provider willreimburse the
Cityfor the cost of the audit, in addition to any interest owed pursuant to Section 14or as specified
inother agreements or franchises with the City.
C.Any underpayment, including any interest or audit cost reimbursement, willbe paid within
thirty (30)days of the City’s noticeof such underpayment.Any overpaymentwill be credited
toward the next quarterly payment owed to the City or in the event no payment is owed at the end
of the next calendar quarter, City shall pay such amounts to the licensee, utility operator or utility
provider within thirty (30) days after the end of such quarter.
D. The Licensee, Utility Provider or Utility Operator is not required to maintain records for more
than six three(36) years. The City is not required to maintain records beyond the State retention
schedules.
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Section 16.Insurance and Indemnification.
A.Insurance.
1.All utility operators willmaintain 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.Threemillion dollars ($3,000,000.00) for bodily injury or death to each person;
ii. Threemillion dollars ($3,000,000.00) for property damage resulting from any one
accident; and
iii. Threemillion dollars ($3,000,000.00) for all other types of liability.
b.Commercial Automobileliability insurance for owned, non-owned and hired vehicles
with a limit of one million dollars ($1,000,000.00) for each person and threemillion
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 willbe subject to statutory changes as to maximum limits of
liability imposed on municipalities of the state of Oregon. The insurance willbe without
prejudice to coverage otherwise existing and willname, or the certificate of insurance will
name, with the exception of worker’s compensation, as additional insureds the Cityand its
officers, agents, and employees. The coverage must apply as to claims between insureds
on the policy. The insurance willnot 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 willobtaina replacement policy that complies with the termsofthis sectionand
provide the Citywith a replacement certificate of insurance. The utility operator will
maintain continuous uninterrupted 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 willmaintain on file with the Citya 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 willprovide 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 franchiseor license, if applicable, and compliance with the terms of
this Ordinance, including any costs, expenses, damages or loss the Citypays or incurs
because of any failure attributable to the utility operator to comply with the codes,
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ordinances, rules, regulations or permits of the City.This obligation is in addition to the
performance surety required under this Ordinance.
C. Indemnification.
Commented \[CL17\]: The last sentence implies an option to
Each utility licenseewill defend,indemnify and hold the Cityand its officers, employees,
defend rather than an obligation. The licensee would still be
agents and representatives harmless from and against any and all liability, causes of action,
obligated to pay the costs of defense if it chose not to.
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
Commented \[CL18\]: We suggest consolidating paragraphs 1
lessees in the construction, operation, maintenance, repair, relocation or removal of its
and 2.
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 Citywillnotify the utility operator and provide the utility operator with an opportunity
to provide defense regarding any such claim.
1.Every utility licenseewillalso indemnify the Cityfor any damages, claims, additional costs
or expenses assessed against or payable by the Cityarising 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.
EveryUtility licensee,utility operatorand utility provider willcomply 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 Licensegranted under this Ordinance.
Section 18. Confidential/Proprietary Information.
If any personis required by this Ordinance to provide books, records, maps or information to the
Citythat the personreasonably 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 Citywilltake reasonable steps to protect the confidential
information to the extent permitted by Oregon Public Records Laws. In the event the Cityreceives
a public records request to inspect any confidential information and the Citydetermines that it will
be necessary to reveal the confidential information, to the extent reasonably possible the Citywill
notify the person that submitted theconfidentialinformation of the records request prior to
releasing the confidential information. The Citywillnot be required to incur any costs to protect
anyconfidential information,other thanthe City’s routine internal procedures for complying with
the Oregon Public Records Law.
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Section 19. Penalties.
A.Any person found in violation of any of the provision of this Ordinance or the Utility License
willbe subject to a penalty of not less than one hundred fifty dollars ($150), nor more than twenty-
Commented \[CL19\]: The scale of the penalties are significantly
five hundred dollars ($2,500) for each offense. A violation willbe deemed to exist separately for
higher than we see in the majority of the cities in our service
each and every day during which a violation exists.
territory. $500 is most common. This would be in addition to the
penalties associated with intentional wrongdoing in Section 14.
B.Nothing in this Ordinance willbe construed as limiting any judicial or other remedies the City
may have at law or in equity, for enforcement of this Ordinance.
C. The City or its designee, in their sole discretion, willhave the authority to reduce or waive
the penalties and interest due under this subsection 19.
Section 20. Severability and Preemption.
A.The provisions of this Ordinance willbe interpreted to be consistent with applicable federal
and state law, and willbe 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 Ordinanceis 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 willnot be affected thereby but willbe deemed as a
separate, distinct and independent provision, and such holding willnot affect the validity of the
remaining portions hereof, and each remaining section, subsection, clause, phrase, term, provision,
condition, covenant and portion of this Ordinance willbe 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 willbe preempted only to the extent required by law and any portion not
preempted willsurvive. 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 willapply to all existing franchise agreements
granted to utility operators and utility providers by the City.
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o
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mergency management staff.
tore for future use, a variety of disaster
he private sector and the public.
To communicate with all levels of government, t
To facilitate the coordinated response by eThe EOC shall collect and disseminate, as well as sinformation.
W•••
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59
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Save LivesStabilize the IncidentProtect PropertyProtect the Environment
E••••
or
loss”
made or natural
-
of Emergency
as: “any man
60
n
ERGENCY
o
i
t
EM
a
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t
c
Commander may declare a State
A
C
y Administrator. If the City Administrator is unable to act due
O
Authority: Woodburn Emergency Management Ordinance #2315This authority is granted through ORS 401ORS 401.025 Defines to absence or incapacity, the Emergency Program Manager Incident
event or circumstance causing or threatening loss of life, injury to person or property, human suffering or financial The authority to declare a state of emergency is delegated to the
Cit
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)
S
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61
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FlexibilityStandardizationUnified Effort
t
•••
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NIMS uses the Incident Command System (ICS)This provides:
N••
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62
w
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m
a
r
F
n
o
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o
C
S
PersonnelEquipmentSuppliesTeamsFacilities
M
•••••
I
Resource Management
N•
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63
w
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a
r
F
n
o
m
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C
Operational LevelCoordinating and Supporting Level
S
••
Leadership RolesProcessesOrganizational Structures
M
•••
I
Command and Coordination Described
N•
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o
64
w
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F
n
o
m
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kers have the appropriate means and
C
S
Ensures all personnel and other decision mainformation needed to make and communicate decisions.
M
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Communication and Information Management
N•
65
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JIS)
Incident Command PostEmergency Operations CenterPolicy GroupPIO, Joint Information System (
NIMS Functional Group
••••
66
vel
le
-
ith media and public
esource acquisition,
Tactical Activities On SceneIncident Support, coordination, rinformation gathering, analysis and sharingPolicy guidance, seniordecision making Outreach and communication w
Area of Responsibility••••
67
Operations
dditional resources
a
s
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t
gency public information
a
a
-
gency decision making
n
i a
-
d
r
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roup)
Determine priorities/objectives for incident (Policy Group)Establish operational periodsAssign and support operational requestsAdjust budgets, policies, priorities to make resources
available (Policy GFacilitate interCoordinate interLocate/Acquire/deploy
EOC •••••••
68
Deputy Chief/Asst. City Manager/Operations Division Commander/CRD Commander/ WFD (Chief/Command Officer)/ Public Works DirectorDeputy Chief/ Operations Division Commander/CRD Commander/
WFD PersonnelOperations Division Commander/CRD Commander/ WPD SergeantWFD PersonnelCommunity Development Director/Finance Director/Transit Manager/H.R. DirectorCity Attorney/Assistant
City AttorneyPublic Works Director/City EngineerPublic Information Officer/DesigneeMETCOM Staff
EOC Staffing
Incident CommanderOperationsChiefLawEnforcementFire/EMSPlanningLogisticsLegalPublic WorksP.I.O.Communications
-
.
resources
FEDERAL
(OERS)
69
S
E
C
R
U
n emergency or disaster, or requests access to state or
esources in response to natural and technological emergencies and civil unrest involving multi
EquipmentVolunteer Groups The purpose of the Oregon Emergency Response System (OERS) is to coordinate and manage state rjurisdictional cooperation between all levels of government and
the private sector. OERS is the primary point of contact by which any public agency provides the state notification of a
O
••••
S
E
City of WoodburnMarion County Emergency ManagementOregon Emergency Response System
R•••