September 14, 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 A GENDA
S HARON S CHAUB,C OUNCILOR W ARD IV
M ARY B ETH C ORNWELL,C OUNCILOR W ARD V
S EPTEMBER 14,2020–7:00 P.M.
E RIC M ORRIS,C OUNCILOR W ARD VI
VIAVIDEOCONFERENCING
1.CALL TO ORDER AND FLAG SALUTE
2.ROLL CALL
3.ANNOUNCEMENTS AND APPOINTMENTS
Announcements:
None.
Appointments:
None.
4.COMMUNITY/GOVERNMENT ORGANIZATIONS
None.
5.PROCLAMATIONS/PRESENTATIONS
Proclamations:
None.
Presentations:
None.
6.COMMUNICATIONS
None.
7.BUSINESS FROM THE PUBLIC–This allows the public to introduce items for Council
consideration not already scheduled on the agenda.
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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.**
September 14,2020Council Agenda Page i
8.CONSENT AGENDA–Items listed on the consent agenda are considered routine
and may be adopted by one motion. Any item may be removed for discussion
at the request of a Council member.
A.Woodburn City Council minutes ofAugust 10, 20201
Recommended Action: Approve the minutes.
B.Woodburn City Council Work Session minutesAugust 31, 20205
Recommended Action:Approve the minutes.
C.Building Activity for August 20207
Recommended Action:Receive the report.
9.TABLED BUSINESS
None.
10.PUBLIC HEARINGS
A.Continuance of Council Call-up Hearing of Planning Commission 22
approval of Allison Way Apartments (Design Review DR 2019-05,
Phasing Plan PP 2019-01, Property Line Adjustment PLA 2019-04, Street
Exception EXCP 2020-05, and Variances 2019-04)
Recommended Action:After hearing additional public testimony, the
Council may act on the consolidated land use applications package
or individual applications to:
1.Approve with the modified conditions (as specified below)or
2.Deny, based on Woodburn Development Ordinance (WDO)
criteria or other City provisions.
B.FY 2020-2021 Supplemental Budget Request for Acceptance of Grant 53
Awards for Covid Relief Funds (CRF) and Business Oregon Small
Business Grant Funds and the Appropriation Authority for Expending
the Grant Revenue for their Approved Purposes
Recommended Action:Hold a public hearing.
11.GENERAL BUSINESS –Members of the public wishing to comment on items of general
business must complete and submit a speaker’s card to the City Recorder prior to
commencing this portion of the Council’s agenda. Comment time may be limited
by Mayoral prerogative.
A.Council Bill No. 3137–An Ordinance Providing for the Management 55
of Access to and Use of the City's Rights-of-Way for Utility Purposes
and Declaring an Emergency
September 14,2020Council Agenda Page ii
Recommended Action:Enact the Utility Service Ordinance
B.Council Bill No. 3138-AResolution Setting the Right-of-WayUtility114
License and Usage Fee Rates within the City of Woodburn
Recommended Action:Adopt a Resolution setting ROW utility
license and usage fee rates in the City
C.Council Bill No. 3139–A Resolution Approving a Supplemental 117
Budget for FY 2020-2021
Recommended Action:Adopt the resolution authorizing $750,000
additional grant revenue and appropriation authority to Operating
Expenses in the General Fund.
D.T-Mobile Water Tower Site Lease Agreement119
Recommended Action:Authorize the City Administrator to enter
into the attached Water Tower Site Lease Agreement with T-
Mobile.
12.PLANNING COMMISSION OR ADMINISTRATIVE LAND USE ACTIONS–These are
Planning Commission or Administrative Land Use actions that may be called up
by the City Council.
None.
13.CITY ADMINISTRATOR’S REPORT
14.MAYOR AND COUNCIL REPORTS
15.EXECUTIVE SESSION
None.
16.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
September 14,2020Council Agenda Page iii
3.Create an inclusive environment where Woodburn residents want to participate and are engaged in the community.
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.
September 14,2020Council Agenda Page iv
COUNCIL MEETING MINUTES
AUGUST 10, 2020
DATECOUNCILCHAMBERS,CITY HALL, CITY OF WOODBURN, COUNTY
OF MARION, STATE OF OREGON, AUGUST 10, 2020
CONVENEDThe meeting convened at 7:00 p.m. with Mayor Swenson presiding.
ROLL CALL
Mayor Swenson Present
Councilor CarneyPresent -via video conferencing
Councilor Cornwell Present -via video conferencing
Councilor SchaubPresent -via video conferencing
Councilor MorrisPresent -via video conferencing
Councilor EllsworthPresent -via video conferencing
Councilor Cabrales Present -via video conferencing
Staff Present(via video conferencing):City Administrator Derickson, Assistant City
Administrator Row, Economic Development Director Johnk, Community Development Director
Kerr, Police Chief Ferraris,Operations Director Stultz, Finance Director Turley,Assistant City
Attorney Granum, Human Resources Director Gregg, Engineering Director Liljequist, Parks and
Recreation Manager Cuomo, City Recorder Pierson
PRESENTATIONS
Presentation on the Woodburn Mortgage Assistance Program by DevNW- Economic
Development Director Johnk and Amy Hamilton with DevNW provided information on the how
DevNW will assist with the City’s mortgage assistance program.
CONSENT AGENDA
A.Woodburn City Council minutes of July 13, 2020,
B.Woodburn City Council Executive Session minutes of July 13, 2020,
C.Woodburn City Council Work Session minutes of July 27, 2020,
D.Woodburn City Council Executive Session minutes of July 27, 2020,
E.Acceptance of a Public Utility Easement at 619 Harrison Street, Woodburn, OR 97071 (Tax
Lot 051W07CD01501),
F.Acceptance of a Public Right-of-Way Dedication at 619 Harrison Street, Woodburn, OR 97071
(Tax Lot 051W07CD01501),
G.IGA with Marion County for “eProsecutor” Access,
H.Building Activity for July 2020,
I.Reaffirmation of City Excessive Force Policy Declaration,
J.Liquor License Application for Woodburn-Denn LLC.,
K.Liquor License Application for OGA Golf Course Inc.,
L.Liquor License Application for Fusion 99 Inc.,
M.Liquor License Application for Mango’s Bar LLC.,
N.Liquor License Application for B&E 4 LLC.,
O.Crime Statistics through June 2020.
Page 1 - Council Meeting Minutes, August 10, 2020
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COUNCIL MEETING MINUTES
AUGUST 10, 2020
Councilor Carney asked what the reaffirmation of City Excessive Force Policy Declaration is and
City Administrator Derickson stated that it is a requirement of the CDBG Block Grant and this
updates the City’s HUD Policy stating that the City won’t use force against nonviolent protestors.
Councilor Carney asked who in the City decides what violence is and Police Chief Ferraris stated
that it would be him. Councilor Ellsworth askedwhatpart two of the declaration meant and Police
Chief Ferraris stated that if there is a nonviolent demonstration and an entrance or exit is being
blocked laws will be enforced to prohibit that blockage. Carney/Morris… adopt the Consent
Agenda. The motion passed unanimously.
COUNCIL BILL NO. 3135 - A RESOLUTION ADDRESSING FAIR HOUSING
ASSISTANCE IN THE CITY OF WOODBURN, AS REQUIRED BY THE OREGON
COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM AND THE UNITED
STATEMENT DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; AND
REPEALING AND REPLACING RESOLUTION NO. 1346
Carney introduced Council Bill No. 3135. City Recorder Pierson read the bill by title only since
there were no objections from the Council. City Administrator Derickson provided a staff report.
On roll call vote for final passage, the bill passed unanimously. Mayor Swenson declared Council
Bill No. 3135 duly passed.
COUNCIL BILL NO. 3136 - A RESOLUTION ADOPTING THE ”MAYOR’S PLEDGE”
RELATED TO USE OF FORCE AND AUTHORIZING THE MAYOR TO SIGN THE
MAYOR’S PLEDGE ON-LINE
Carney introduced Council Bill No. 3136. City Recorder Pierson read the bill by title only since
there were no objections from the Council. City Administrator Derickson provided a staff report.
Councilor Carney stated that he supports the objectives that are outlined on the website but does
not wish to be associated with the website in any way because of the content of the website.
Councilor Morris stated that he supports itand the City should be leading the way in these kinds
of things. Councilor Ellsworth stated that she supports the tenants of the document. Councilor
Cabrales stated that she supports the Mayor signing this document. On roll call vote for final
passage, the bill passed with Councilor Carney voting no. Mayor Swenson declared Council Bill
No. 3136 duly passed.
SALE OF PROPERTY LOCATED AT 11842 NE CHATEAU DR.
Carney/Cornwell…Authorize the City Administrator to enter into a purchase and sale agreement
and transfer title of City owned property located at 11842 Chateau Dr. NE, Woodburn, OR 97071
to Rubin Ramirez Guzman and Luz M. Ramirez-Tarinby means of a Statutory Warranty Deed.
The motion passed unanimously.
PLANNING COMMISSION OR ADMINISTRATIVE LAND USE ACTIONS
Call-Up Briefing: Planning Division Staff Approval of a Preliminary Partition of Parcel 1,
Partition Plat 2019-063 (Phase 1B of Smith Creek)
The Council declined to call this item up.
CITY ADMINISTRATOR’S REPORT
Page 2 - Council Meeting Minutes, August 10, 2020
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COUNCIL MEETING MINUTES
AUGUST 10, 2020
The City Administrator reported the following:
Work on the Covid situation continues. Hopes that everyone has had a chance to review
the Covid Updates that he has been sending out.
A financial plan on how to best utilize the $738,000 in CARES Act funds will be coming
to the next Council meeting.
Making progress on the FHDC Block Grant, and there may be more items coming back in
September.
The purchase of the Family Resource building is in the works and hoping that Love
INC. will be in there by the end of the year.
Will be in town this Friday but largely unavailable.
MAYOR AND COUNCIL REPORTS
Councilor Morris thanked everyone for the debate tonight in regards to the Mayor’s pledge and
appreciates the discussion on that. Stated that he had someone who asked where to get a Covid test
and that he is surprised there are people who are still not hearing about where to get the tests.
Councilor Ellsworth stated that she misses having Fiesta this year and will also miss the LOC
conference.
Councilor Cornwell stated that she has had people ask her to find out if the fertilizer plant is safe.
City Administrator Derickson stated that they will look into this between now and the September
meeting and report back.
Mayor Swenson stated that he has been on the last two League of Oregon Cities calls and that they
are working on making sure that the federal money that was given to the states to distribute to the
cities is all distributed to cities. He attended a Census meeting as well as a meeting with the County
and the People of Color Alliance. Attended a County meeting discussing going back to school and
the Covid facility here in Woodburn. Attended the Mayor’s conference where there were
presentations on broadband connectivity,and leadership. A worksessionis scheduled for August
31 with possible topics being broadband connectivity, a community centerupdate, a report from
Marion County Health, a budget update, or a Mid valley recovery team presentation.
City Administrator Derickson stated that from a staff prospective a community center update
would be beneficial.
ADJOURNMENT
Morris/Carney… meeting be adjourned. The motion passed unanimously.
The meeting adjourned at 8:28 p.m.
APPROVED
ERIC SWENSON, MAYOR
Page 3 - Council Meeting Minutes, August 10, 2020
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COUNCIL MEETING MINUTES
AUGUST 10, 2020
ATTEST
Heather Pierson,CityRecorder
City of Woodburn, Oregon
Page 4 - Council Meeting Minutes, August 10, 2020
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COUNCIL WORKSESSION MEETING
MINUTESAUGUST 31, 2020
DATECOUNCIL CHAMBERS, CITY HALL, CITY OF WOODBURN, COUNTY
OF MARION, STATE OF OREGON, AUGUST 31, 2020
CONVENEDThe work sessionconvened at 7:00 p.m. with Mayor Swenson presiding.
COUNCIL PRESENT
Mayor Swenson Present
Councilor Carney Present -via video conferencing
Councilor Cornwell Present -via video conferencing
Councilor Schaub Present -via video conferencing
Councilor Morris Present -via video conferencing
Councilor Ellsworth Present -via video conferencing
Councilor Cabrales Present -via video conferencing
Staff Present: City Administrator Derickson, City Attorney Shields, Assistant City Attorney
Granum, Assistant City Administrator Row, Police Chief Ferraris,Deputy Police Chief Pilcher, ,
City Recorder Pierson
Councilor Schaub stated that she would like to make a motion. Schaub/Morris… that the
Woodburn City Council conduct a vote via no confidence for Mayor Eric Swenson.
Councilor Schaub explained that the vote of no confidence is based on the actions of the Mayor
and would like members of the Council to discuss this and make a vote.
Councilor Morris provided a presentation on the items for the Council to consider in regards to
Mayor Swenson and the no confidence vote. Those items included his discussions with Marion
County in regards to the pandemic, the BLM protest, the Father’s Day Parade and a walk through
of some real estate property.
Mayor Swenson stated that he appreciates the chance to talk about these things and provided
explanations to the situations that Councilor Morris brought up.
Councilor Carney asked questions of the Mayor in regards to Marion County’s Covid facility and
inquired as to why he wasn’t keeping the Council informed on what was happening.
Councilor Schaub stated that she was appalled that he even suggested the Super 8 considering
where it is located in Woodburn.
Councilor Cornwell stated that she has concerns about the Mayor denying that he had anything
to do with the facility coming to Woodburn and wishes that the Mayor would have been more
honest with what had happened.
Page 1 – Council Work Session Meeting Minutes, August 31, 2020
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Councilor Ellsworth stated that she understands that mistakes can be made but her main concern
is what the motivation behind all of this was and whether the Mayor was naïve or if there were
nefarious intentions.
Councilor Cabrales stated that she understands what everyone is saying and believes that this
was a mistake and to try and think about the great things the Mayor has done.
City Attorney Shields stated that he did not know that the Mayor had spoken with the owner of
the Super 8 until he read about it in Marion County’s response.
City Administrative Derickson stated that he did not know the County was looking in Woodburn
until June 16 when the County called him.
Councilor Morris stated that his biggest concern is what is going to come next that we don’t
know anything about.
Mayor Swenson stated that he understands the feelings around this and the connections being
made and that there was some naiveté on his part.
The Mayor called for a roll call vote on the motion. On roll call vote the motion passed 5-1 with
Councilor Cabrales voting no.
The work session items that were scheduled to take place at this meeting were postponed to a
later date.
ADJOURNMENT
Morris/Ellsworth…meeting be adjourned. The motion passed unanimously. The meeting
adjourned at 8:36 p.m.
APPROVED___________________________
ERIC SWENSON, MAYOR
ATTEST_____________________________
Heather Pierson, Recorder
City of Woodburn, Oregon
Page 2 – Council Work Session Meeting Minutes, August 31, 2020
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Agenda Item
September 14, 2020
TO: Honorable Mayor and City Council through City Administrator
FROM:Chris Kerr,Community Development Director
Colin Cortes, AICP,CNU-A,Senior Planner
SUBJECT:Continuance ofCouncil Call-up Hearing of Planning Commission
approval ofAllison Way Apartments (Design ReviewDR 2019-05,
Phasing PlanPP 2019-01,Property Line AdjustmentPLA 2019-04, Street
Exception EXCP 2020-05, and Variances 2019-04)
RECOMMENDATION:
After hearing additional public testimony, the Council may act on the
consolidated land use applications package or individual applications to:
1.Approve with the modified conditions (as specified below)or
2. Deny, based on Woodburn Development Ordinance (WDO) criteria or
other City provisions.
:
BACKGROUND
On June 8, 2020, the Council called up the Planning Commission decision to
approve the Allison Way Apartment application. On July 13, 2020, the Council,
after hearing the staff presentation and testimony from the public and applicant
decided to continue the public hearing in order to permit the applicant to modify
the plans in response to comments received at the hearing.
Since the July 13 hearing, theapplicant significantly modified the proposal and
submitted the attached exhibits:(1) an explanatory cover letterdated
September 1, (2) narrative,(3) drive aisle memo, and (4) four drawings. Because
the proposal has been modified, an opportunity for additional public testimony
must be provided.
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Honorable Mayor and City Council
September 14, 2020
Page 2
DISCUSSION
Generally, the revised plans provide the same number of units with more parking
spaces by making minor changes to the site plan, whichreduces the
greenspaces and narrows several parking aisles. The revisions still necessitate
variance approvalsbutthe revised plansclearly reflect Council direction to
greatly lesson how much they vary from the WDO.
Summary of the Six (6) Variance Requests
Below is astaff summary on each variance in relation tothe attached
applicant’s exhibits:
1. Driveway width minimum: To have driveways narrower than 24 feet (ft.),
typically either 20 ft.or wider where and as Oregon Fire Code requires;
What changed:Though the revisions still depend on avariance approval,
they clearly reflect Council direction by greatly lessening how much it
varies.(See thelast attachment, last sheet: Exhibit 61Site Plan –Drive
Aisles.)
2. Parking ratio minimum:To have off-street parking equal a rate less than 2.0
spaces or stalls per dwelling, specifically 1.77 per dwelling;
What changed: Though the revisions still depend on avariance approval,
they clearly reflect Council direction by greatly lessening the variance,
moving from 1.77 to 1.9 spaces per dwelling. The ratio of 1.9(1,113spaces)
varies 5.0% from the WDO standard of 2.0(1,172 spaces).
3. Compact parking percentage maximum: To have the percentage of
minimum off-street parking that is compact parking be more than 20%,
specifically 60%;
What changed: Though the revisions depend on avariance approval, they
clearly reflect Council direction by greatly lessening the variance, moving
from 53.5%to 25.0%.
4. Drive aisle width minimum: To have drive aisles narrower than 25 ft.,
typically either 20 ft or wider where and as Oregon Fire Code requires;
What changed: Though the revisions depend on avariance approval, they
clearly reflect Council direction by greatly lessening how much it varies.
23
Honorable Mayor and City Council
September 14, 2020
Page 3
Most drive aisles are at least 24 ft.wide, and those in the “parking courts”
remain at 20ft.
:To have on-site curbs smaller than 6
5. Parking area curb height minimum
inches, specifically 4 inches;
What changed: No changes to what the Commission had approved.
6.Architectural Wall: To not have a buffer or screen wall that the WDO terms
an “Architectural Wall”, specifically instead to plant a landscaped buffer
and, along the closest parkingareas, treated cedar wood fence about 6 ft.
high.
What changed: Nochanges to what the Commission had approved.
Stacy Allison Way Bicycle Lanes
During the July 13 hearing, the Council expressed the desire to have bicycle lanes
on both sides of Stacy Allison Way. The current Condition EX2 would not do so.
To correct this, the Council would need a motion to approve the Street Exception
application with the Commission conditions except that Stacy Allison Way will
have 5-ft bike lanes (see below).
Proposed Motions
After closing the public hearing, if the Council decides to grant approval, staff
recommends thatthe Council act through several motions, as suggested below:
Motion 1: Approvalof Design Review, PropertyLine Adjustmentand Phasing Plan
“I move that the City Council tentatively approve Design Review 2019-05,
Property Line Adjustment 2019-04 and Phasing Plan 2019-01 with the Planning
Commission conditionsand direct staff toprepare a final decision document for
Council consideration.”
Motion 2: Approval of Street Exception
“I move that the City Council tentatively approve Street Exception 2020-05
withthe Planning Commission conditions, except that Stacy Allison Way shall have
5-foot wide bicycle lanes, and direct staff to modify the conditions and prepare
a final decision document for Council consideration.”
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Honorable Mayor and City Council
September 14, 2020
Page 4
Motion 3: Approval of all six (6) Variances
If the Council agrees with allsix (6) variances,including the lesser degree of
variance as the applicant’s letter exhibit proposes regarding parking ratio and
compact parking percentage, only one motion is necessary:
“I move that the City Council tentatively approve Variance 2019-04, which
consists of the six (6) variances summarized in the staff report, and direct staff to
prepare a final decision document for Council considerationincorporating the
parking ratio and compact parking numerical standards per the applicant’s letter
exhibit.”
If the Council does not agree with allsix (6) variances, then it must use separate
motions to address each variance.
FINANCIAL IMPACT
None.
:
Attachments
1. Applicant’s cover letter (September 1,4 pages)
2. Applicant’s narrative (September 1, 14 pages):
3. Exhibit memo“Allison Way Drive Aisle Width” (August 3, 3 pages)
4.Applicant’s drawings (August 3, 6site plan sheets):
Exhibit 3 Site Plan - Overall
Exhibit 4 Site Plan - Phase 1
Exhibit 5 Site Plan - Phase 2
Exhibit 6 Site Area Calculations - Phase 1
Exhibit 7 Site Area Calculations - Phase 2
Exhibit 61 Site Plan - Drive Aisles
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A Policy on Geometric Design of Highways and Streets
A Policy on Geometric Design of Highways and Streets
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EXHIBIT
Site Plan - Overall
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46 (8%) 586 (30.8 UNITS/ ACRE) 255 (22.8%) 553 (49.5%) 20
586758
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1,143 (1.95 SPACES/ UNIT)
TOTAL:VEHICLE PARKING - ON SITETOTAL: 1,117 (1.91 SPACES/ UNIT)TOTAL: 1,117ACCESSIBLE: 36VEHICLE PARKING - OFF SITEVEHICLE PARKING - TOTALWITH A CONDUIT SYSTEM FOR THE
FUTURE
UNIT SUMMARY2-BEDROOM: 376 (64%)3-BEDROOM:STANDARD: 862 (77.2%)COMPACT:COVERED: 564 (50.5%)UNCOVERED:STREET: 26STANDARD:862 (75.4%)COMPACT:255 (22.3%)STREET: 26 (2.3%)BICYCLE PARKINGUNITS:COVERED:
152UNCOVERED:NOTE:5% OF PARKING SPACES TO BE PROVIDEDCHARGING STATIONS PER OAR 918-020-0380.PROVIDE 26 TOTAL SPACES WITH LEVEL 2CHARGING STATIONS, STRIPING & SIGNAGE.
1-BEDROOM: 164 (28%)INSTALLATION OF ELECTRIC VEHICLE
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Site Plan - Phase 1
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VEHICLE PARKING - ON SITEACCESSIBLE: 11VEHICLE PARKING - OFF SITEVEHICLE PARKING - TOTALWITH A CONDUIT SYSTEM FOR THE FUTURE
UNIT SUMMARY2-BEDROOM: 132 (73.7%)3-BEDROOM:TOTAL:STANDARD: 267 (77.2%)COMPACT:TOTAL:COVERED: 178 (51.4%)UNCOVERED:TOTAL:STREET: 13STANDARD:267 (74.4%)COMPACT: 79 (22.0%)STREET:
13 (3.6%)TOTAL: 359 (2.01 SPACES/ UNIT)BICYCLE PARKINGUNITS: 179COVERED: 48UNCOVERED:TOTAL: 231NOTE:5% OF PARKING SPACES TO BE PROVIDEDCHARGING
STATIONS PER OAR 918-020-0380.PROVIDE 8 SPACES WITH LEVEL 2CHARGING STATIONS, STRIPING & SIGNAGE.
1-BEDROOM: 30 (16.8%)INSTALLATION OF ELECTRIC VEHICLE
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EXHIBIT
Site Plan - Phase 2
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2-BEDROOM: 244 (60.0%)TOTAL:VEHICLE PARKING - ON SITETOTAL:TOTAL:ACCESSIBLE: 25VEHICLE PARKING - OFF SITEVEHICLE PARKING - TOTALTOTAL: 784 (1.93 SPACES/ UNIT)TOTAL:
527WITH A CONDUIT SYSTEM FOR THE FUTURE EST
UNIT SUMMARY3-BEDROOM:STANDARD: 595 (77.2%)COMPACT:COVERED: 386 (50.1%)UNCOVERED:STREET: 13STANDARD: 595 (75.9%)COMPACT: 176 (22.4%)STREET: 13 (1.7%)BICYCLE PARKINGUNITS:
407COVERED: 104UNCOVERED:NOTE:5% OF PARKING SPACES TO BE PROVIDEDINSTALLATION OF ELECTRIC VEHICLECHARGING STATIONS PER OAR 918-020-0380.PROVIDE 18 SPACES WITH LEVEL
2CHARGING STATIONS, STRIPING & SIGNAGE
'1-BEDROOM: 134 (32.9%) 29 (7.1%) 407 (31.1 UNITS/ ACRE) 176 (22.8%) 771 (1.89 SPACES/ UNIT) 385 (49.9%) 771 16
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595 (75.9%)COMPACT: 176 (22.4%)STREET: 13 (1.7%)TOTAL: 784 (1.93 SPACES/ UNIT)COVERED: 104TOTAL: 5275% OF PARKING SPACES TO BE PROVIDEDWITH A CONDUIT
SYSTEM FOR THE FUTURE
UNIT SUMMARY1-BEDROOM: 134 (32.9%)COMPACT:COVERED: 386 (50.1%)UNCOVERED:BICYCLE PARKINGUNITS: 407UNCOVERED:NOTE:INSTALLATION OF ELECTRIC VEHICLECHARGING STATIONS
PER OAR 918-020-0380.PROVIDE 18 SPACES WITH LEVEL 2CHARGING STATIONS, STRIPING & SIGNAGE
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Site Area Calculations - Phase 1
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Site Area Calculations - Phase 2
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61
EXHIBIT
Site Plan - Drive Aisles
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Agenda Item
September 14, 2020
TO:Honorable Mayor and Councilthrough City Administrator
FROM:Anthony Turley,Finance Director
SUBJECT:FY 2020-2021 Supplemental Budget Request forAcceptance of
Grant Awards for Covid Relief Funds (CRF) and Business Oregon
Small Business Grant Funds and the Appropriation Authority for
Expending the Grant Revenue for their Approved Purposes.
RECOMMENDATION:
Hold a public hearing and adoptthe resolution authorizing $750,000additional
grant revenue and appropriation authorityto Operating Expensesin the
General Fund.
BACKGROUND:
Every year, after Councilbudget adoption,circumstances arise that were
either unforeseen,unquantifiable, or discovered as errors.Oregon Budget Law,
ORS 294.471(1) provides for changes to adopted budgets through a transfer
resolution or supplemental budget process that notices the proposed changes.
Transfers in excess of 15 percent of any fund’s total expenditures, or
supplemental budget changes in excess of 10 percent of any fund’s total
expenditures, requirea public hearing to accept public testimony on the item
under consideration.
Like the adopted budget, supplemental budget requests must be balanced;
in other words, net revenue and net expense for the request must be equal.
This can be accomplished by budgeting additional revenue or by reducing
another expenditure category (such as contingencies).
DISCUSSION:
The City of Woodburn has received a CRF grant through the State of Oregon
for $690,000. This additional revenue was not anticipated when the budget was
adopted. This grant is intended to offset the increased and unanticipated cost
impact of the COVID-19 pandemic.
In addition Business Oregon has awarded a grant to the City matching the
$60,000 Small Business relief grant program the City implemented last fiscal
Agenda Item Review: City Administrator ___x___City Attorney __x____Finance____x___
53
Honorable Mayor and City Council
September 14, 2020
Page 2
year. The City intends to utilize this funded to implement an additional small
business grant program in the next 30 days.
FINANCIAL IMPACT:
If the resolution is approved, the following changes will be made:
SUMMARY OF PROPOSED BUDGET CHANGES
AMOUNTS SHOWN ARE REVISED TOTALS IN THOSE FUNDS BEING MODIFIED
General - 001
ResourceOriginalChangeRevisedRequirementOriginalChangeRevised
1Revenues15,254,420750,00016,004,420 Operating Expenses15,254,420750,000 16,004,420
Revised Total Fund Resources 16,004,420 Revised Total Fund Requirements 16,004,420
Comments: Federal Grant allocated to COVID-19 related expenses & Business Oregon Grant Funds.
54
Agenda Item
September 14, 2020
TO:Honorable Mayor and City Council
FROM:Jim Row, Assistant City Administrator
McKenzie Granum, Assistant City Attorney
SUBJECT:Utility Service Ordinance & Resolution setting ROW Utility License
and Usage Fee Rates
RECOMMENDATION:
As part of the City's implementation of a new licensing program to regulate utility
services providers that access, use, and occupythe City's rights-of-way ("ROW"):
1. Enact the Utility ServiceOrdinance; and
2. Adopt a Resolution setting ROW utility license and usage fee rates in the
City.
BACKGROUND:
Earlier this year, staff initiated a review of the City’s process for regulating utility
services providers’ use of the City’s ROW. 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 resolutionwith City staff, some edits and updates were
incorporated into both documents being presented for council adoption.
Agenda Item Review:City Administrator __x____City Attorney __x____Finance __x___
55
Honorable Mayor and City Council
September 14, 2020
Page 2
DISCUSSION:
By adopting the Utility Service Ordinance and correlating fee schedule, the City
will join roughly one dozen other municipalities in Oregon that have implemented
a uniform ROW licensing system.
Given the complexity of developing and implementing the proposed ROW
management program, staff has worked closely with ROW Consultants LLC, and
its Principal Reba Crocker, to develop the program and work towards an
implementation date of October 1, 2020.
Reba Crocker will again be available as part of the Council's discussion regarding
adoption of the utility license program to assist in addressing technical questions,
policy concerns, industry dealings, and general impacts that may result from
adopting this new program.
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
council meeting to staff so that Ms. Crocker or City staff can be sure to cover the
subject in full detail during the council meeting.
After the City adopts the new Utility Services Ordinance, utility service providers
will be actively identified and subjected to the new licensing program. The six (6)
providers that are currently operating under franchise agreements will not be
subject to the new ROW management/licensing program until their existing
agreements expire.
As provided previously, the pertinent provisions of the enclosed 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 existingfranchises 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;
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Honorable Mayor and City Council
September 14, 2020
Page 3
Licenses are transferrable upon the written consent of the City, provided
the transfers are consistent with state and federal law;
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;
and
Provides for ROW license and usage fees to be established by resolution.
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
Utility Service Ordinance
Utility License& Usage Fee Resolution
August 3rd Letter from Fatbeam LLC
August 7th Ordinance Comments received from PGE
August 10th Letter from Wireless PolicyGroup 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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59
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August 7th Ordinance Comments received from PGE
Utility Services Ordinance
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 with applicable state and federal law;
B.Assure that the City’s current and ongoing costs of granting and regulating access to,the use
of the rights-of-wayand utility services provisioned in the City,are fully compensatedby 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.
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Section 3.Jurisdiction and Management of the Public Rights-of-way.
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 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
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.
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“Cable Act” means the Cable Communications Policy Act of 1987, 47 U.S.C., Section 521, et seq.,
as now and hereafter amended.
“Cable service” is to be defined consistent with federal laws and means the one-way transmission
to subscribers of: (i) video programming, or (ii) other programming service; and subscriber
interaction, if any, which is required for the selection or use of such video programming or other
programmingservice.
“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
protocolemployed, 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 orthe 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 the City 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 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 entityor
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 usedfor 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 ofany easement granted to the City.
“Right-of-way” , “Rights-of-Way”, “Public right-of-way”, or “ROW” means and includes, but is
not limited to, the space in, upon, above, along, across, over or under the public streets, roads,
highways, lanes, courts, ways, alleys, boulevards, bridges, trails, paths, sidewalks, bicycle lanes,
public utility easements and all other public ways or areas, including the subsurface under and air
space over these areas, but does not include parks, parkland, or other city property not generally
open to the public for travel. This definition applies only to the extent of the City’s right, title,
interest and authority to grant a license to occupy and use such areas for utility facilities.
“Small Cell Wireless Facility” 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 Cell Wireless 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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“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 the transmission 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 services to 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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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 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 before negotiations 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 orfederal 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 pursuantto 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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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
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 Licensee willobtain 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 theutility 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 Licenseerequesting 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 of the 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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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 City after 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 egregiousnessof the misconduct;
b.The harm that resulted;
c.Whether the violation was intentional;
d.The Licensee’shistory of compliance; and/or
e. The Licensee’s cooperation 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 ofcuring 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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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 noticeto 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 may coordinate 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
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the City due to such failure, including but not limited to costs related toproject 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 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 facilityis 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 violationwithin 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 to us 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 attacheeson 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 believe it is 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 Cityof 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 doprovided 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 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 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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COUNCIL BILL NO. 3137
ORDINANCE NO. 2583
AN ORDINANCE PROVIDING FOR THE MANAGEMENT OF ACCESS TO AND USE OF
THE CITY'S RIGHTS-OF-WAY FOR UTILITY PURPOSES AND DECLARING AN
EMERGENCY
WHEREAS, the City of Woodburn ("City") has a statutory and Constitutional
authority to manage its rights-of-way and to receive compensation for private use
of the rights-of-way consistent with applicable state and federal law;
WHEREAS, the City has generally granted individually-negotiated franchises
to each utility using the City's rights-of-way to provide utility services;
WHEREAS, the City has determined that it can more effectively, efficiently,
and fairly manage the City's rights-of-way and provide consistent standards for
utility useofthe rights-of-way through licenses rather than franchises;
THE CITY OF WOODBURN ORDAINS AS FOLLOWS:
.The ordinance willbe known and may be referenced as
Section 1.Title
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 Cityconsistent with applicable state and
federal law;
B.Assure that the City’s current and ongoing costs of granting and
regulating access to, the use of the rights-of-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;
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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 or
operated by the City are excluded.
2. For the purposes of this Ordinance, all utility services owned or
operated by other municipalities are excluded.
E.Assure that the Citycan continue to fairly and responsibly protect the
public health, safety and welfare of its residents;
F. Encourage theprovision of advanced and competitive utility
services on the widest possible basis to businesses and residents of the City by,
1. Allowing the City to enter into other or additional agreements with
Utility Providers and Operators, if the public’s interest is served, and to
amend the requirement of this Ordinance and the City regulations,
as new technology is developed;
2. Allowing the City to be resilient and adaptive to changes in
technology; and
G.Comply with applicable provisions of state and federal law.
.
Section 3.Jurisdiction and Management of the Public Rights-of-way
A. The Cityhas jurisdiction and exercises regulatory management over,
all rights-of-waywithin the Cityand provision of services,under authority of the
City Charter and Oregonlaw.
B. The Cityhas jurisdiction and exercises regulatory management over
each right-of-waywhether 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.
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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 Citycharges, 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 propertytax 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.
.For the purpose of this Ordinance the following
Section 5.Definitions
terms, phrases, words and their derivations willhave 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.
“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.
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“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.
“City facilities” means Cityor publicly ownedstructures or equipment located
within the right-of-wayor 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 serviceprovided 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-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 calendardays 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 aleases or other agreements allowing use of
facilities toother utility operators or providers), oruseof utility facilities in 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 Utility licensed
issued by the City.
“Person” means and includes any individual, firm, sole proprietorship, corporation,
company, partnership, co-partnership, joint-stock company, trust, limited liability
company, association, municipality, special district, government 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, 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,
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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 granta license to occupy and use
such areas for utility facilities.
“Small Cell Wireless Facility” means Facilities owned or operated for the provision
of communications that are shorter ranged, wireless systems affixed to a structure
with generally smaller components than traditional Macro Wireless Facilities and
are deployed where suitable in flexible configurations to provide capacity and
coverage. Small Cell Wireless Facilities means a facility that meets each of the
following conditions per 47 C.F.R § 1.6002(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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“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 componentof 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, underor above the rights-of-way, whether or not such facilities are
owned by the service provider, of electricity, natural gas, communications
services, or cable services, to or from customers within the City limits, or the
transmission or provision of any of these services through the Citywhether 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
services to customers within the Citywillregister with the Cityprior to use,
operation, control of utility facilities, or providing any utility services to any
customer in the City, in compliance with Ordinance No. 2399. Every person using,
operating, controlling, or providing utility services to customers within the Cityas
of the effective date of this Ordinance willobtain a Business Registration within
thirty (30)days of the effective date of this Ordinance. Every person subject to this
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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 operatorsand utility providers
with a valid franchise or other valid agreement from the City, every person will
obtain 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 willapply for a Utility Licensefrom the City within 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.
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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 Licensewillbe evaluated based upon the provisions
of this Ordinance,the information contained on the Utility Licenseapplication, 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 and other Agreements. If the public interest warrants, as
determined by the Cityin its sole discretion,the Cityand any communications
provider –including cable providers, utility operator or utility provider,including
Small Cell wireless providers,may enter into a written franchise or other
agreement that includes terms that clarify, enhance, expand, waive or vary the
provisions of this Ordinance, consistent with applicable state and federal law. The
agreement may conflict with the terms of this Ordinance with the review and
approval of City Council. The franchisee 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 franchise or 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 before
negotiations 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 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.
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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 willconstitute 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.
. Subject to the termination provisions in subsection N of this
H.Term
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
st
first, and will have a term of five (5) calendar years beginning: (1) January 1of
the year in which the license took effect for licenses that took effect between
stthst
January 1and June 30; or (2) January 1of the year after the license took effect
stst
for licenses that become effective between July 1and December 31.
I. Utility License Nonexclusive. 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 City
expressly reserves the right to grant licenses, franchises or other rights to other
persons, as well as the City’s right to use the rights-of-way, for similar or different
purposes. The license is subject to all recorded deeds, easements, dedications,
conditions, covenants, restrictions, encumbrances, and claims of title of record
that may affect the rights-of-way. Nothing in the license 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 City Rights. Nothing in theUtility Licensewillbe
construed to prevent the Cityfrom grading, paving, repairing and/or altering any
rights-of-way, constructing, laying down, repairing, relocating or removing City
facilities or establishing any other public work, utility or improvement of any kind,
including repairs, replacement or removal of any cityfacilities. If any of licensee’s
utility facilities interfere with the construction, repair, replacement, alteration or
removal of any rights-of-way, public work, city utility, cityimprovement or city
facility, 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 Cityand consistent withCity
standards, industry standard engineering and safety codesin effect at the time
the work is required.
K.Multiple Services.
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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 Usagefeerequirements 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 service provided.
L.Transfer or Assignment. To the extent permitted by applicable state
and federal laws, the Utility Licenseewillobtain the written consent of the City
prior to the transfer or assignment of the license. The license willnot 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 Licenseerequesting 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’ abilityto perform under the license.
If the City approves such transfer or assignment, the transferee or assignee will
become responsible for fulfilling all obligations under theUtility License. A transfer
or assignment of a license does not extend the term of the license.
l. At least thirty (30) days, but no more than ninety (90) days
M.Renewa
prior to the expiration of a Utility Licensegranted pursuant to this section, a
licensee seeking renewal of its license willsubmit a license application to the City,
including all information required in subsection B of this section and applicable
fees fee required in subsection C of this section. The Citywillreview the
application as required by subsection D of this section and grant or deny the
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license. If the Citydetermines 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 Ordinance for any of
the following reasons:
a.Violation of any of the provisions of this Ordinance;
b.Violation of any provision of the license;
c.Misrepresentation in a license application;
d.Failure to pay taxes, compensation, fees or costs due the City
after final determinationby 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 willbe considered:
a. The egregiousness of the misconduct;
b. The harm that resulted;
c. Whether the violation was intentional;
d.The Licensee’s history of compliance; and/or
e.The Licensee’s cooperation in discovering, admitting and/or
curing the violation.
3. Notice and Cure. The Citywillgive the Utility Licenseewritten notice
of any apparent violations before terminating a Utility License. The
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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 Licensee has
remained in compliance, that the Licensee has cured or is in the
process of curing any violation or noncompliance, or that it would be
in the public interest to impose a penalty or sanction less than
termination or revocation. If the Licensee is in the process ofcuring a
violation or noncompliance, the Licensee must 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 noticeto
the City. Licensee may reapply for a Utility Licenseat 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 longerprovides Utility
Services, as defined in this ordinance.
Section 8.Construction and Restoration.
A.Construction Codes. Utility facilities willbe constructed, installed,
operated, repairedand maintained in accordance with all applicable federal,
state and local codes, rules and regulations, including but not limited tothe
National Electrical Code and the National Electrical Safety Codeand 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 Cityconsistent with applicable citycodes, rules
and regulations, in effect at the time of the work. A utility operator, utility provider,
licensee or other person acting on its behalf willuse suitable barricades, flags,
flagging attendants, lights, flaresand 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
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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 valid license, franchise agreement or other valid
agreement (if applicable),required by this Ordinance, and all
applicable fees have been paid. No permit is required for routine
maintenance or repairs to customer service drops where such,
repairs or maintenance do not require cutting, digging, or breaking
of, or damage to, the right of way and do not result in closing or
blocking any portion of the travel lane for vehicular traffic, bicycle
lanes or sidewalks.
2. In the event of an Emergency, a utility operator or provider with a
license pursuant to this Ordinance or its 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 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 City
where 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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3. Whenever any existing electric utilities, cable facilities or
communications facilities are located underground within theROW
of the City, the utility operator with permission to occupy the same
ROWwillinstall all new 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 restricted sight distance nor interfere with the proper
function of traffic control signs, signals, lighting, or other devices that affect traffic
operation. All use of the rights-of-waywillbe consistent with Citycodes,
ordinances, rulesand regulationsin effect and as may be subsequently
amended.
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 theROW, including relocation of aerial facilities
underground, when requested to do so in writing by the City. 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
seeking reimbursement or compensation from a third party, pursuant
to applicable laws, regulations, tariffsor agreements, 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,
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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 aninvoice 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 utility operator in securing alternate
locations. However, the City will bear no responsibility or costs for
securing alternate locations. The City will bear no responsibility to
obtain, compensate, or otherwise assist the utility operator in
relocation of is facilities to location not in the control of the City.
.
D.Removal of Unauthorized Facilities
1. Unless otherwise agreed to in writing by the City, within thirty (30) days
following written notice from the 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 therights-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 abandonedif 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.
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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 Citywill use best
efforts to providetheutility 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 thefull 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 City
incurred 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 Cityor its contractor in
removing, relocating or altering the facilities pursuant to this Section
9, or resulting from the utility operator’s failure to remove, relocate,
alter or underground its facilities as required by this Section 9, unless
such damage arises directly from the City’s or it’s contractor’s
negligence or willful misconduct.
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F.Engineering Record Drawings.The utility operator willprovide the
Citywith two complete sets of record drawingsin a form acceptable to the City
showing the location of all its utility facilities after initial construction if such plan
changed during construction. The utility operatorwillprovide updated complete
sets of as built plans upon request of theCity, but not more than once per year.
G. Facility Map.Utility operator, Utility provider and Utility Licenseewill
provide, 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 Licenseewill 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, at no cost to the City, upon request, no
more than once per year.
Section 10.Leased Capacity.A utility operator may lease capacityon or
in its facilities to others, provided thatthe utility operator requires and has
verified with the City, that the proposed lessor has obtained proper authority
from the City prior to leasing capacity or allowing use of its facilities. Upon
request, at no cost to the City, the utility operator willprovide a complete list
with the name, businessaddressand contact informationof any lessee. If
requested by the City, the utility operator will also provide exact details of any
attachment by lessee.Autility 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 local laws, rules, regulations and
policies. The utility operator will,at its own expense, repair and maintain facilities
from time to time as may be necessary to accomplish this purpose.
B. If, after written notice from the Cityof the need for repair or
maintenance as required in subsection A of this section, a utilityoperator 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
an invoice 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) days after a ROW is
vacated, or as otherwise directed or agreed to in writing by the City, the City
may remove the facilities using qualified personnel or contractors consistent with
applicable state and federal safety laws and regulations at the utility operator’s
sole expense. Upon receipt of an invoice from the City, the utility operator will
reimburse the 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 utility services and
every person that provides utility services within the City, willpay the usage fee for
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
operatethe 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 otherwiseagreed to in writing by the City, the fee willbe 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 will such acceptance of
payment be construed as a release of any claim the City may have for further or
additional sums payable.
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).
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E.Unless otherwise agreed to in writing by the City, theUsage fee set
forth in subsection A of this section willbe 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 lawin 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 licensee subject to this Ordinance.
Unless expressly permitted by the Cityin enacting such fee or tax, or required by
applicable state or federal law, no utility operator may deduct, offset or otherwise
reduce or avoid the obligation to pay any lawfully enacted fees or taxes based
on the payment of the Usage fees or any other fees required by this Ordinance
.Penalties and interest
Section 14.Penalties and Interest on Usage Fee
imposed by this section are in addition to any penalties that may be assessed
under other ordinances orregulations of the City.
A.Any person who has not submitted the required remittance forms or
remitted the correct fees when due as provided in Section13willpay a penalty
listed below in addition to the amount due:
1.First occurrence during any one calendar year; Ten percent
(10%) of the amount owed, or Twenty-five dollars ($25.00),
whichever is greater.
2. Second occurrence during any one calendar year; Fifteen
percent (15%) of the amount owed, or Fifty dollars ($50.00),
whichever is greater.
3. Third occurrence during any one calendar year; Twenty percent
(20%) or the amount owed, or Seventy-five dollars ($75.00),
whichever is greater.
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4. Fourth occurrence during any one calendar year; Twenty-five
percent (25%) of the amount owed, or One hundred dollars
($100.00), whichever is greater.
B.If the City determines that the nonpayment of any remittance due
under this section is due to fraud or intent to evade the provisions hereof, an
additional penalty of twenty-five percent (25%) of the amount owed, or Five
hundred dollars ($500.00), whichever is greater, willbe added thereto in addition
to other penalties stated in section 14.
C. In addition to the penalties imposed, any person who fails to remit
any fee when due as provided in Section 13willpay interest at the rate of 1.5%
per month or fractions thereof, without proration for portions of a month, on the
total amount due (including penalties), from the date on which the remittance
first became delinquent, until received by the City.
D. Every penalty imposed, and such interest as accrues under the
provision of this section, willbe 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.Audits and Records Requests.
A.Within thirty (30) days of a written request from the City, or as
otherwise agreed to in writing by the City:
1.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 applicable
Business Registrationfee, licensing fee, usage fee, attachment
fee, franchise feeor privilege taxes.
2. Every Utility Operator, Utility Provider and Utility Licenseewill 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 with respect to its
facilities or use of facilities, within the rights-of-way. Access willbe
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provided within the City unless prior arrangement for access
elsewhere has been madeand 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 usagefee,licensing fee, attachment feeor
franchise feeor any other fee or paymentby two percent (2%) or more in any
one(1)year, the licensee, utility operator, or utility provider willreimburse the City
for the cost of the audit, in addition to any interest owed pursuant to Section 14
or 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 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.Three million dollars ($3,000,000.00) for bodily injury or death to
each person;
ii.Three million dollars ($3,000,000.00) for property damage
resulting from any one accident; and
iii.Three million dollars ($3,000,000.00) for all other types of
liability.
b.Commercial 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
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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 willinclude such an endorsement. If the
insurance is canceled or materially altered, the utility operator will
obtaina replacement policy that complies with the termsof this
sectionand provide the Citywith a replacement certificate of
insurance. The utility operator willmaintain 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 securityor 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 licensee willdefend, indemnify and hold the Cityand its
officers, employees, agents and representatives harmless from and
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against any and all liability, causes of action, claims, damages,
losses, judgments and other costs and expenses, including attorney
fees and costs of suit or defense (at both the trial and appeal level,
whether or not a trial or appeal ever takes place) that may be
asserted by any person in any way arising out of, resulting from,
during or in connection with, or alleged to arise out of or result from
the negligent, careless, or wrongful acts, omissions, failure to act, or
other misconduct of the utility licensee or its affiliates, officers,
employees, agents, contractors, subcontractors, or lessees in the
construction, operation, maintenance, repair, or removal of its
facilities, and in providing or offering utility services over the facilities,
whether such acts or omissions are authorized, allowed, or prohibited
by this Ordinance or by a franchise agreement. The acceptance of
aUtility 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.
2. Every utility licensee willalso 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.
.Every Utility licensee, utility operatorand utility
Section 17.Compliance
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 License
granted 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
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possible the Citywill notify the person that submitted the confidential
information of the records request prior to releasing the confidential information.
The Citywillnot be required to incur any costs to protect any confidential
information,other than the City’s routine internal procedures for complying with
the Oregon Public Records Law.
Section 19.Penalties and Violations.
A.Any person found in violation of any of the provisions of this
Ordinance or the Utility Licensewillbe 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, and shall be processed in accordance with the Civil Infraction
Ordinance (Ord. No. 1998).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 Citymay 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.
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 Ordinance is for any reason declared or held
to be invalid or unenforceable by any court of competent jurisdiction or
superseded by state or federal legislation, rules, regulations or decision, the
remainder of this Ordinance 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
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preemption is later repealed, rescinded, amended or otherwise changed to end
the preemption, such provision willthereupon return to full force and effect and
willthereafter be binding without further action by the City.
.To the extent that this
Section 21.Application to Existing Agreements
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 operatorsand utility providersby the City.
Section 22. Emergency Clause.This ordinance being necessary for the
immediate preservation of the public peace, health, and safety since it is in the
City's interest to have this regulatory programin place for utility services that
occupy City right-of-way, an emergency is declared to exist and this ordinance
shall take effect as of October 1, 2020.
Approved as to form:
City AttorneyDate
Approved:
Eric Swenson, Mayor
Passed by the Council
Submitted to the Mayor
Approved by the Mayor
Filed in the Office of the Recorder
ATTEST:
Heather Pierson, City Recorder
City of Woodburn, Oregon
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COUNCIL BILL NO.3138
RESOLUTIONNO.2162
ARESOLUTION SETTING THE RIGHT-OF-WAY UTILITY LICENSE AND USAGE FEE RATES
WITHIN THE CITY OF WOODBURN
WHEREAS,the City of Woodburn("City") has constitutional and charter
authority to manage its rights-of-wayand utility usage within the City; and
WHEREAS, the WoodburnCity Counciladoptedan ordinance regulating
utilities operating within the Cityand exercising the City’s authority to secure
compensation to the City and its residents for utility use;
WHEREAS, per the ordinance theWoodburnCouncil 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 WoodburnCity Council shall by resolution
establish Usage fees;NOW, THEREFORE,
THE CITY OF WOODBURN RESOLVES AS FOLLOWS:
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 depositshall be $5,000.00;
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Section 5. The usage fee shall be as follows, to the extentpermitted under
applicable law:
ServiceUsage Fee Rate
Electric:Provides services to customer within 5% of gross revenue
Woodburn via owned or non-owned facilities
located within the City’s ROW
Natural Gas:Providing services to customer 5% of gross revenue
within Woodburn via owned or non-owned
facilities located within the City’s ROW.
Cable Television 5% of gross revenue
Communications*(other than Small Cell 7% of gross revenue
Wireless** 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**$5,000 per attachment per year
Facilities)
Small Cell Wireless**Communications Facilities$270.00 per attachment per year
Usage of owned or non-owned facilities inthe $3.00 per linear foot of Utility
rights-of-way for purposes other than generating Facilities in the rights-of-way or a
revenue or providing services to customers within minimum annual fee of $5,000.00,
the City.whichever is greater. The per-
linear-foot fee and the minimum
fee shall increase 3% annually on
st
July 1of 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 $5,000.00per attachment. The attachment fee shall increase
st
of each year, beginning on July 1, 2022.
3% annual on July 1
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 nocase less than $270.00 per attachment, per
year.
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* "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.
Section 8. The fees implemented by this Resolution take effect on
October 1, 2020.
Approved as to Form:
City AttorneyDate
APPROVED:
Eric Swenson, Mayor
Passed by the Council
Submitted to the Mayor
Approved by the Mayor
Filed in the Office of the Recorder
ATTEST:
Heather Pierson, City Recorder
City of Woodburn, Oregon
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116
COUNCIL BILL NO. 3139
RESOLUTION NO. 2163
A RESOLUTION APPROVING A SUPPLEMENTAL BUDGET FOR FY 2020-2021
WHEREAS, ORS294.463(1) permits “transfers of appropriations” within any
fund “when authorized by official resolution or ordinance of the governing body”;
and
WHEREAS,ORS294.463(2) limits “transfers of general operating contingency
appropriations to no more than fifteen (15) percent of the total appropriations of
the fund” unless adopted pursuant to a supplemental budget;and
WHEREAS,transfers made pursuant to any of the above must state the need
for the transfer, the purpose for the authorized expenditure, and the amount of
the appropriation transferred; and
WHEREAS,ORS294.471(1)(a) permits supplemental budgets when “an
occurrenceof condition which had not been ascertained at the time of the
preparation of a budget for the current year or current budget period which
requires a change in financial planning”; and
WHEREAS,ORS294.473requires the governing body to hold a public
hearing on the supplemental budget when the estimated expenditures
contained in the supplemental budget for fiscal yearor budget period differ by
ten(10) percent or more of any one of the individual funds contained in the
regular budget for that fiscal year; and
WHEREAS,the transfers contained herein are made pursuant to ORS
294.463; and
WHEREAS,the supplemental budgetcontained hereinis made pursuant to
ORS 294.471; and
WHEREAS,a public hearing was heldSeptember 14, 2020onthe
supplemental budget changes, NOW, THEREFORE,
THE CITY OF WOODBURN RESOLVES AS FOLLOWS:
Section 1.That pursuant to the applicable ORS provisions cited above, the
City Council hereby approves the supplemental budget for FY 2020-21in the
amounts shown below for the purposes of funding the federal grant allocation to
COVID-19 related expenses and the Business Oregon grant fundsfor small
business relief.
Page 1 – COUNCIL BILL NO. 3139
RESOLUTION NO. 2163
117
SUMMARY OF PROPOSED BUDGET CHANGES
AMOUNTS SHOWN ARE REVISED TOTALS IN THOSE FUNDS BEING MODIFIED
General - 001
ResourceOriginalChangeRevisedRequirementOriginalChangeRevised
1Revenues15,254,420750,00016,004,420 Operating Expenses15,254,420750,000 16,004,420
Revised Total Fund Resources 16,004,420 Revised Total Fund Requirements 16,004,420
Comments: Federal Grant allocated to COVID-19 related expenses & Business Oregon Grant Funds.
Approved as to Form:
City AttorneyDate
APPROVED:
Eric Swenson, Mayor
Passed by the Council
Submitted to the Mayor
Approved by the Mayor
Filed in the Office of the Recorder
ATTEST:
Heather Pierson,City Recorder
City of Woodburn, Oregon
Page 2 – COUNCIL BILL NO. 3139
RESOLUTION NO. 2163
118
Agenda Item
September 14, 2020
TO:Honorable Mayor and City Council through City Administrator
FROM:Jim Row, Assistant City Administrator
SUBJECT:T-Mobile Water Tower Site Lease Agreement
RECOMMENDATION:
Authorize the City Administrator to enterinto theattachedWater Tower Site Lease
Agreement with T-Mobile.
BACKGROUND:
The City and T-Mobile are currently parties to a site lease agreement that
authorizes them to locate cellular telephone antennae and associated
equipment on the City’s downtown water tower. The lease was executed in
2001 and, as provided for in the agreement, has automatically renewed three
times (2006, 2011, 2016). With no further renewals available, the lease is set to
expire in September 2021. As is customary with leases of this nature, the City and
T-Mobile began renewal negotiations approximately 2½ years prior to the
expiration of the current lease.
T-Mobile currently pays $1,400.75 per month in rent.
In addition to T-Mobile, the City leases space on the water tower to Sprint and
Verizon for the placement of similar cellular telephone equipment.
:
DISCUSSION
The lease that is presented to the City Council tonight is similar in many respects
to the current lease. Key provisions of the proposed lease document include
the following:
The initial term of the lease will be five (5) years, beginning August 1, 2021
The lease will automatically renewforthree (3) additional five (5) year
terms, unless the City provides notice of termination at least ninety (90)
days prior to the expiration of the initial term or any renewal term
Agenda Item Review:City Administrator ______City Attorney ______Finance _____
119
Honorable Mayor and City Council
September 14, 2020
Page 2
T-Mobile will pay the City $2,000 per month in rent initially
The rent amount will increase 3% each year
Uponreceiving 180 days’ advance notice, T-Mobile is required to relocate
their equipment, at their own expense, should it be necessary in order for
the City to conduct maintenance activities on the water tower
In addition to default related termination clauses, the City may, with City
Council approval, provide T-Mobile with a one (1) year written
termination notice
T-Mobile may also terminate the lease agreement with one (1) year
written notice
FINANCIAL IMPACT:
T-Mobile will pay the City$2,000 per monthin rentfor the first year. The rent
amountwill increase 3% annually thereafter. Rent paid by T-Mobile supports
General Fund programs, such as police, parks and recreation and the library.
120
WATER TOWER SITE LEASE AGREEMENT
T-MOBILE FACILITY SITE
THIS WATER TOWER SITE LEASE AGREEMENT (“Lease”) is entered into this day of
_______________________, 20___, (“Effective Date”) between the City of Woodburn, an
Oregon municipal corporation (“Landlord”) and T-Mobile West LLC, a Delaware limited liability
company(“Tenant”).
BACKGROUND
A)Landlord is the owner of a parcel of land located in the City of Woodburn, Oregon,
which is the site of an elevatedmunicipal water tower.
B) This agreement provides for Tenant’s lease of a portion of Landlord’s property and
water tower for certain permitted uses.
The Parties Agree as Follows:
AGREEMENT
1. Premises. Landlord owns a parcel of land (“Land”) and a water/telecommunications
tower (“Tower”) located in the City of Woodburn, County of Marion, State of Oregon,
commonly known as 106 Broadway, Woodburn, Oregon 97071. The Tower and the Land are
collectively referred to herein as the “Property.” The Land is more particularly described in
Exhibit A attached hereto. Subject to the following terms and conditions, Landlord leases to
Tenant certain designated space on the Landlord’s Tower. Tenant’s use of the Property shall be
limited to that portion of the Property together with easements for access and utilities,
Exhibit B(collectively referred to hereinafter as the
described and depicted in the attached
“Premises”).
2.Term & Renewal.
2.1 The initial term of the Lease will be five years, beginning on August 1, 2021 (the
“Commencement Date”) and terminating at midnight on July 31, 2026 (“Initial Term”).
2.2 Tenant shall have the right to extend this Lease for three (3) additional five (5)
year terms (each a “Renewal Term”). Each Renewal Term shall be on the same terms
and conditions as set forth herein.
2.3 This Lease shall automatically renew for each successive Renewal Term unless
Tenant notifies Landlord, in writing, of Tenant’s intention not to renew this Lease, at
least ninety (90) days prior to the expiration of the Initial Term or any Renewal Term.
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2.4 If Tenant remains in possession of the Premises at the expiration of the initial
term or any Renewal Term without a written agreement, such tenancy shall be deemed
a month-to-month tenancy under the same terms and conditions of this Lease.
3.Rent.
3.1 Upon the Commencement Date, Tenant shall pay Landlord, as rent, the sum
$2,000 per month (“Rent”). Rent shall be payable on the first day of each month in
advance to Landlord at theaddress set out under Section 3.2 below. Notwithstanding
the foregoing, Rent for the first month of the Initial Term will be due within thirty (30)
days following the Commencement Date.
3.2 Tenant shall pay all rent to the City of Woodburn by check, mailed or personally
delivered to the City of Woodburn, Finance Department, 270 Montgomery St.
Woodburn, Oregon 97071.
3.3 If Landlord receives any rent payment from Tenant more than 5 calendar days
past due, Landlord may impose a Late Fee of $100.00 for each month that amounts
owed by Tenant remain unpaid. All Late Fees are due and payable once assessed and
become part of the balance owed by Tenant under this Lease.
No new agreements or contract extensions will be made between Landlord and Tenant
during any period that a delinquent balance remains owing under this Lease.
3.4 Upon the anniversary of the Commencement Date each year, the Rent shall
increase by three (3) percent of the preceding year’s Rent.
3.5 If this Lease is terminated at a time other than on the last day of a month, Rent
shall be prorated as of the date of termination for any reason other than a default by
Tenant, and all prepaid Rent shall be refunded to Tenant.
. The Premises may be used by Tenant only for permitted uses, which are
4. Permitted Use
the transmission and reception of communication signals and for the construction, installation,
operation, maintenance, repair, addition, removal or replacement of the related facilities,
antennas, microwave dishes, equipment shelters and/or cabinets and related activities.
Tenant shall, at its expense, comply with all present and future federal, state, and local laws,
ordinances, rules and regulations (including laws and ordinances relating to health, radio
frequency emissions, and any other radiation and safety requirements) in connection with
Tenant’s use, operation, maintenance, construction, and/or installation of its equipment.
Tenant shall obtain, at Tenant’s expense, all licenses and permits required for Tenant’s use of
the Premises from all applicable government and/or regulatory entities (the “Governmental
Approvals”) and may, prior to the Commencement Date obtain a title report, perform surveys,
soil tests, and other engineering procedures on, under and over the Property, necessary to
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determine that Tenant’s use of the Premises will be compatible with Tenant’s engineering
specifications, system design, operations and Governmental Approvals. Landlord agrees to
reasonably cooperate with Tenant (at no cost to Landlord), where required, to perform such
procedures or obtain Governmental Approvals.
By taking possession of the Premises, Tenant accepts the Premises in the “as-is” condition
existing as of the Commencement Date. Landlord makes no representation or warranty with
respect to the condition of the Premises and Landlord shall not be liable for any latent or patent
defects in the Premises.
5. Interference. Tenant shall not use the Premises in any way which interferes with the
existing use of the Property by the Landlord, or with any use by another tenant which use
existed at the time that this Lease was executed. No materials shall be used in the installation
of the antennas or transmission lines that will cause corrosion or deterioration of the Tower
structure or its appurtenances.Landlord will not permit or suffer the installation of any
equipment on Landlord’s Property after the Commencement Date that: (i) results in technical
interference problems with Tenant’s equipment, or (ii) encroaches onto the Premises.
All antenna(s) on the Tower must be identified by a marking fastened securely to its bracket on
the Tower and all transmission lines are to be tagged at the conduit opening where it enters
any equipment space.
. Upon request of the Landlord, Tenant agrees to relocate its
6.Temporary Relocation
equipment on a temporary basis to another location on the Property, hereafter referred to as
the “Temporary Relocation”, for the purpose of the Landlord to perform general upkeep,
routine maintenance, repair, cosmetic work (e.g. painting), or similar work at the Property or on
the Tower provided:
a) The Temporary Relocation required is once per five (5) year term of the lease
agreement;
b) Tenant pays all costs incurred for relocating Tenant equipment to the Temporary
Relocation and improving the Temporary Relocation so that it is fully compatible for
the Tenant’s use;
c) Landlord shall provide Tenant at least one-hundred eighty (180) days written notice
prior to requiring Tenant to relocate;
d)Tenant’suse of the Property is not interrupted or diminished during the Temporary
Relocation and Tenant is allowed, if reasonably determined, to place a temporary
installation on the Property during the Temporary Relocation. Should Tenant
experience an interruption, stoppage, or other issuewith service due to moving to
the Temporary Relocation, Landlord shall provide Tenant with an abatement of the
Rent for each day of disruption; and
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e) Upon completion of any maintenance, repair, or similar work by the Landlord, the
Tenant shall be permitted to return to its original location from the Temporary
Relocation with all costs related to the relocation of the Tenant equipment being
paid by the Tenant.
f) If the Parties cannot agree upon a suitable area for Temporary relocation then
Tenant may terminate the Lease in its reasonable judgment upon written notice to
Landlord, without penalty or further obligation.
7. Maintenance.
7.1The Landlord shall keep the Tower in good repair as required by applicable laws,
rules, regulations, ordinances, directives, covenants, easements, zoning and land use
regulations, and restrictions of record, permits, building codes, and requirements of any
applicable fire insurance underwriter or rating bureau, now in effect or which may
hereafter come into effect (including, without limitation, the American with Disabilities
Act and laws regulating hazardous substances). The Landlord shall comply with all rules
and regulation enforced by the Federal Aviation Administration with regard to the
lighting, marking, and painting of the Tower.
The Tenant shall notify the Landlord in writing of any observed deficiency in the repair
or maintenance of the Tower. The Landlord will respond within 30 days of notification
of a Tower deficiency.
7.2. Tenant shall, at its own expense, maintain the Premises and any equipment on
or attached to the Premises in a safe and commercially reasonable condition, in good
repair, and in a manner suitable to Landlord so as not to conflict with the use of or other
leasing of the Tower by Landlord. Tenant shall have the sole responsibility for the
maintenance, repair, and security of its equipment, personal property, Antenna
Facilities, and leasehold improvements, and shall keep the same in good repair and
condition.
.
8. Improvements; Utilities; Access
8.1 Tenant shall have the right, at its expense, to maintain on the Premises
communications facilities: antenna poles, antennas, coax, related appurtenances, and
equipment cabinet(s) or vault(s) as identified on Exhibit B, (collectively the “Antenna
Facilities”). Landlord’s prior consent to the plans and specifications for equipment
upgrade improvements by Tenant shall be required, which consent will not be
unreasonably withheld, conditioned or delayed. Landlord will not be entitled to any
additional rent or other fees for its review or approval. Notwithstanding the foregoing,
Tenant may perform maintenance, repairs, and make like-kind or similar replacements
of Antenna Facilities and modifications within the interior of any shelters or base station
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equipment without the prior consent of Landlord.
8.2 Tenant shall cause all construction to occur lien-free and in compliance with all
applicable laws and ordinances. The Antenna Facilities shall remain the exclusive
property of Tenant and are not fixtures.
8.3 Tenant shall remove the Antenna Facilities upon termination or expiration of this
Lease within 90 days and shall return the Premises to approximate original condition
except ordinary wear and tear and shall be liable for any damage caused by Tenant’s
construction, installation, repairs, relocation, or removal of Antenna Facilities. If Tenant
fails to vacate and surrender the Premises when required by this Lease, Landlord may
elect to (i) retain or dispose of Tenant’s Antenna Facilities as Landlord sees fit; or (ii)
remove the Antenna Facilities and place them in storage for Tenant’s account, in which
case Tenant shall be liable for the cost of removal, transportation and storage, plus
interest from the date of expenditures.
8.4 Tenant shall separately meter and pay any additional utility charges due to
Tenant’s use. Tenant shall have the right to install utilities, at Tenant’s expense, and to
improve the present utilities on the Premises. Landlord hereby grants an easement to
permanently place any utilities on or to bring utilities across the Property in order to
service the Premises and the Antenna Facilities. Utilities shall be limited to the
location(s) shown on the attached Exhibit B and be limited to power, fiber, and copper
telecommunication utilities.
8.5 As partial consideration for rent paid under this Lease, Landlord hereby grants
Tenant an easement (“Easement”) for ingress, egress and access to the Premises
adequate to service the Premises and the Antenna Facilities at all times during the term
of this Lease or any Renewal Term. Upon thirty (30) days prior written notice, Landlord
shall have the right, at Landlord’s sole expense, to relocate the Easement to Tenant,
provided such new location shall not materially interfere with Tenant’s operations. Any
Easement provided hereunder shall have the same term as this Lease.
8.6 Tenant shall have 24-hour-a-day, 7-day-a-week access to Premises at all times
during the term of this Lease and any Renewal Term, except during an emergency. For
the purpose of this Lease and at Landlord’s sole determination, an “emergency” is
defined as any man-made or natural event or circumstance causing or threatening loss
of life, injury to person or property, human suffering or financial loss, and includes, but
is not limited to, fire, explosion, flood, severe weather, drought, earthquake, volcanic
activity, spills or releases of oil or hazardous materials, disease, blight, infestation, civil
disturbance, riot, sabotage and war. Landlord shall make reasonable effort to notify
Tenant that an emergency exists that would prohibit or limit access to the Premises.
9.Termination. Except as otherwise provided herein, this Lease may be terminated,
without any penalty or further liability as follows:
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9.1 Upon (fifteen) 15-days written notice by Landlord if Tenant fails to cure a default
for payment of amounts due under this Lease within that 15 day period.
9.2 Upon thirty (30)-days written notice by either party if the other party commits a
non-monetary default and fails to cure or commence curing such default within this
thirty (30) day period. If a non-monetary default cannot reasonably be cured within a
30-day period, this Lease may not be terminated if the defaulting party commences
action to cure the default within the 30-day period and proceeds with due diligence to
fully cure the default.
9.3 Upon ninety (90)-days written notice by Tenant, if it is unable to obtain, maintain,
or otherwise forfeits or cancels any license, permit or Governmental Approval necessary
to the construction and/or operation of the Antenna Facilities or Tenant’s business.
9.4 Immediately upon written notice by Tenant if the Premises or Property are
destroyed or damaged so as in Tenant’s reasonable judgment to substantially and
adversely affect the effective use of the Premises. In such event, all rights and
obligations of the parties shall cease as of the date of the damage or destruction, and
Tenant shall be entitled to the reimbursement of any Rent prepaid by Tenant.
9.5 Immediately upon written notice by Landlord, if Landlord determines in its sole
discretion that continued use of the Tower by Tenant is in fact a threat to health, safety
or welfare, or violates applicable laws or ordinances, or it Tenant’s facilities are deemed
by the landlord to cause interference to the public safety communications system.
9.6 Upon one (1) year written notice by Landlord, if the Woodburn City Council
determines in its sole discretion that the public interest so requires termination of this
Lease.
9.7 Tenant may terminate the agreement at any time upon written notice to the
Landlord if it determines that the use of the Premises is obsolete or unnecessary in its
sole discretion and subject to paying the Landlord one (1) year termination fee of the
then current rent.
. In the event the Premises are taken by eminent domain, this Lease shall
10. Condemnation
terminate as of the date title to the Premises vests in the condemning authority. In the event of
any taking under the power of eminent domain, Tenant shall not be entitled to any portion of
the proceeds paid for the taking and the Landlord shall receive the full amount of the proceeds.
Tenant shall hereby expressly waive any right or claim to any portion thereof and all damages,
whether awarded as compensation for diminution in value of the leasehold or to the fee of the
Premises, shall belong to Landlord. Tenant shall have the right to claim and recover from the
condemning authority, but not from Landlord, such compensation as may be separately
awarded or recoverable by Tenant on account of any and all damage to Tenant’s business and
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any costs or expenses incurred by Tenant in relocating or removing its equipment, personal
property, Antenna Facilities, and improvements. Tenant may claim prepaid Rent against
Landlord if this Lease is terminated pursuant to this Section.
11. Taxes. Tenant shall pay any personal property taxes assessed on, or any portion of such
taxes attributable to, the Antenna Facilities. Tenant shall indemnify Landlord from any and all
liability, obligation, damages, penalties, claims, liens, charges, losses and expenses, which may
be imposed upon, incurred by, or be asserted against Tenant in relation to the taxes owed or
assessed on the Premises.
12.Indemnification. Tenant shall defend, indemnify and hold harmless Landlord, its
officers, agents and employees, from any liability, loss or damage Landlord may suffer
(including any reasonable attorney’s fees and expenses) as a result of claims, demands, actions,
suits, costs or damages against Landlord of any kind whatsoever in connection with or arising
out of (i) any violation of law, ordinance or covenant or condition of this Lease by Tenant, its
agents, employees, invitees or visitors, or (ii) any injury or damage occurring to any person or to
property of any kind belonging to any person while on or in any way connected with any
portion of the Premises during the term of this Lease which results from or is caused by
Tenant’s use of the Premises, except for any loss or damage caused to Tenant or others or to
property of Landlord, Tenant, or any other person as a result of the sole negligence or willful
acts of Landlord, its officers, agents or employees. Tenant shall give Landlord prompt notice in
case of casualty or accidents on the Premises. Tenant, as a material part of the consideration to
Landlord, hereby assumes all risk of damage to property or injury to persons in, upon or about
the Premises from any cause other than resulting from sole negligence or willful acts of
Landlord, its officers, agents and employees.
13. Limitation of Liability. Neither party shall be liable to the other, or any of their
respective agents, representatives, employees for any lost revenue, lost profits, loss of
technology, rights or services, incidental, punitive, indirect, special or consequential damages,
loss of data, or interruption or loss of use of service, even if advised of the possibility of such
damages, whether under theory of contract, tort (including negligence), strict liability or
otherwise.
14. Insurance. Tenant shall maintain general liability including bodily injury and property
damage insurance including fire legal liability, that includes Landlord and its officers, agents and
employees as additional insureds as it relates to risks, claims, demands, actions and suits for
damage to property including, but not limited to, cracking or breaking of glass, or personal
injury, including death, arising from Tenant’s activities. The insurance shall provide coverage
commercial general liability for not less than $2,000,000 for each occurrence, and $4,000,000
aggregate. The limits of the insurance shall be subject to statutory changes as to maximum
limits of liability imposed on municipalities of the State of Oregon during the terms of this
Lease. The insurance shall be without prejudice to coverage otherwise existing and shall include
as additional insureds Landlord and its officers, agents and employees. Notwithstanding the
listing of additional insureds, the insurance shall protect each insured in the same manner as
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though a separate policy had been issued to each, but nothing herein shall operate to increase
the insurer’s liability as set forth elsewhere in the policy beyond the amount or amounts for
which the insurer would have been liable if only one person or interest had been listed as
insured. The insurance shall provide that the insurance shall not terminate or be canceled
without thirty (30) days written notice first being given to the City Recorder.
Tenant agrees to maintain continuous, uninterrupted coverage for the duration of the Lease. If
the insurance is canceled or terminated prior to termination of the Lease, Tenant shall provide
a new policy with the same terms. Tenant shall maintain on file with the City Recorder a
certificate of insurance certifying the coverage required by this section. Failure to maintain
liability insurance shall be cause for immediate termination of this Lease by Landlord. Landlord
shall have the right to increase the limits of insurance coverage required by this Lease during
the Lease term in order to match any statutory changes as to the maximum limits of liability on
Oregon municipalities. In the event Landlord determines that the insurance limits should be
increased on this basis, Landlord shall provide notice to Tenant of such determination and
Tenant shall promptly increase the coverage amounts to comply with the new limits and
provide Landlord an updated certificate. Under no circumstances shall Landlord be responsible
for or provide insurance to cover loss or damage of Tenant’s equipment or personal property.
Tenant shall have the right to self-insure the above-required coverages.
15. Notices. All notice, requests, demands and other communications hereunder shall be in
writing and shall be deemed given if personally delivered or mailed, certified mail, return
receipt requested, or sent by standard overnight carrier to the following addresses:
If to Landlord, to:If to Tenant, to:
City Administrator, City of Woodburn T-Mobile West USA, Inc.
th
270 Montgomery Street 12920 SE 38 Street
Woodburn, Oregon 97071 Bellevue, WA 98006
Attn: Lease Compliance/Site ID PO00420A
. Landlord warrants that it is in lawful possession of the leased
16. Quiet Enjoyment
Premises and has the right to lease them. Notwithstanding other provisions in this Lease to the
contrary, Landlord will defend Tenant’s right to quiet enjoyment of the leased premises from
the lawful claims of all persons during the lease term and any renewal terms.
17. Assignment. This Agreement may be sold, assigned, or transferred by the Tenant, with
written notice of the Landlord within a reasonable period of time following such sale,
assignment or transfer, to the Tenant’s principal, affiliates, subsidiaries of its principal or to any
entity which acquires all or substantially all of the Tenant’s assets in the market defined by the
Federal Communications Commission in which the Property is located by reason of merger,
acquisition or other business reorganization. As to other parties, this Agreement may not be
sold, assigned, or transferred without the written consent of the Landlord, which consent will
not be unreasonably withheld, conditioned or delayed. No change in stock ownership,
partnership interest or control of the Tenant or transfer upon partnership or corporate
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dissolution of the Tenant shall constitute an assignment hereunder.
Landlord represents that it has no knowledge of any substance,
18. Hazardous Materials.
chemical or waste (collectively, “substance”) on the Property that is identified as hazardous,
toxic or dangerous in any applicable federal, state or local law or regulation. Tenant shall not
introduce or use any such substance on the Property in violation of any applicable law. Landlord
will be solely responsible for and will defend, indemnify, and hold Tenant, its agents and
employees harmless from and against any and all direct claims, costs, and liabilities, including
reasonable attorneys’ fees and costs, arising out of or in connection with the removal, cleanup
or restoration of the Property with respect to substances from any and all sources other than
those substances introduced to the Premises by Tenant. The obligations of this Section shall
survive the expiration or other termination of this Lease.
19.Entire Agreement. This Lease constitutes the entire agreement and understanding of
the parties, and supersedes all offers, negotiations andother agreements. There are no
representations or understandings of any kind not set forth herein. Any amendments to this
Lease must be in writing and executed by both parties.
20. Cooperation. Each party agrees to cooperate with the other in executing any documents
(including a Memorandum of Lease) necessary to protect the other party’s rights or use of the
Premises. The Memorandum of Lease may be recorded in place of this Lease, by either party.
21. Choice of Law. This Lease shall be construed in accordance with the laws of the State of
Oregon.
22. Severability. If any term of this Lease if found to be invalid, such invalidity shall not
affect the remaining terms of this Lease, which shall continue in full force and effect. The
parties intend that the provisions of this Lease be enforced to the fullest extent permitted by
applicable law. Accordingly, the parties shall agree that if any provisions are deemed not
enforceable, they shall be deemed modified to the extent necessary to make them affordable.
23. Memorandum of Agreement. Landlord agrees to promptly execute and deliver to
Tenant a recordable Memorandum of Agreement in the form of Exhibit C, attached hereto.
24. Termination of Prior Agreement. Landlord and Tenant are currently landlord and tenant
under that certain Site Lease Agreement dated September 17, 2001 (“Prior Agreement”).
Landlord and Tenant hereby agree that this Agreement shall only commence upon the full
expiration of the Prior Agreement. Tenant shall remain liable for all fees and expenses and
other amounts coming due under the Prior Agreement up to and including the Prior Agreement
Termination Date, even if such sums are billed subsequent to the Prior Agreement Termination
Date. The termination of the Prior Agreement shall be effective without further
documentation.
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WATER TOWER SITE LEASE AGREEMENT
Signature Page
The parties are signing this agreement on the date stated in the introductory clause.
CITY OF WOODBURN, OREGON
Scott Derickson, City Administrator
City of Woodburn
T-MOBILE WEST LLC
BY:
ITS:
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EXHIBIT A
Page 1 of 2
Legal Description
SITE LEASE AGREEMENT
T-MOBILE WEST LLC EXHIBIT A
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EXHIBIT A
Page 2 of 2
Legal Description
SITE LEASE AGREEMENT
T-MOBILE WEST LLC EXHIBIT A
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EXHIBIT B
Tennant’s equipment and location diagram
SITE LEASE AGREEMENT
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EXHIBIT C
Form of Memorandum of Agreement
This Memorandum of Agreement ("Memorandum") dated _________________________,
20__, evidences that a Site Lease Agreement (the "Agreement") dated ________________,
20___ , was made and entered into between
___________________________________________ (”Landlord”) and
________________________________________ (“T-Mobile” or “Tenant”).
The Agreement provides in part that Landlord leases to T-Mobile a portion of certain real
property owned by Landlord and located at ______________________________________, City
of ____________________________________________________, County of
______________________________, State of _____________________, as further described in
the Agreement (the "Site") for the purpose of installing, operating and maintaining a
communications facility and other improvements. The Site is further described in Exhibit A
attached hereto.
The term of T-Mobile’s lease and tenancy under the Agreement is 5 years commencing on
___________________, (“Commencement Date”), and is subject to 3 renewal
terms of 5 years each that may be exercised by Tenant.
The parties have executed this Memorandum as of the day and year first above written.
LANDLORD
\[INSERT COMPLETE LANDLORD NAME(S)\],
a(n) _______________________________________________
By:
Name:
Title:
Address:
Contact Phone Number: ____________________________________
TENANT\[INSERT TENANT ENTITY’S NAME\]
a(n) _____________________________________________
By:
Name:
Title:
Address:
Email Address: ___________________________________________
SITE LEASE AGREEMENT
T-MOBILE WEST LLC EXHIBIT C
135
Attach Exhibit A - Site Description
LANDLORD NOTARY BLOCK:
STATE OF OREGON )
) ss.
COUNTY OF MARION )
The foregoing instrument was acknowledged before me on this day of , , by
as the of
.
___________________________
___________________________
(Print Name)
Notary Public
My appointment expires:_______
TENANT NOTARY BLOCK:
STATE OF OREGON )
) ss.
COUNTY OF MARION )
The foregoing instrument was acknowledged before me on this day of , , by
as the of
.
___________________________
___________________________
(Print Name)
Notary Public
My appointment expires:_______
SITE LEASE AGREEMENT
T-MOBILE WEST LLC EXHIBIT C
136