October 12, 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
O CTOBER 12,2020–7:00 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:
A.
City Hall and the Library will be closed on November 11 in observance
of Veterans Day.
Appointments:
None.
4.COMMUNITY/GOVERNMENT ORGANIZATIONS
None.
5.PROCLAMATIONS/PRESENTATIONS
Proclamations:
A.October-Domestic Violence Awareness Month1
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.
This facility is ADA accessible. If you need special accommodation, please contact the City Recorder at
503-980-6318 or 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.**
October 12,2020Council 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.
Woodburn City Council minutes of September 14, 20202
RecommendedAction: Approve the minutes.
Acceptance of a Statutory Warranty Deed for Right-of-Way6
Dedication and Two Public Utility Easements at 1220 Fifth Street,
Woodburn, OR 97071 (Tax Lot 051W07DB02500)
RecommendedAction: Authorize the acceptance of aRight-of-
WaydedicationandtwoPublicUtilityEasementsto be granted by
PacificValleyAuto,LLC, owners ofthepropertylocatedat1220Fifth
Street, Woodburn, OR97071 (Tax Lot051W07DB02500).
Leasing Specialist, LLC. Contract Award20
RecommendedAction:That the City Council, actingastheLocal
ContractReviewBoard,awardapolicevehicle lease contract to
Leasing Specialists, LLC. and authorizethe City Administratortosign
the police vehicle lease contract.
Liquor License Application – Metropolis LLC.22
RecommendedAction: The Woodburn City Councildoesnot
providearecommendationfor an approval or denial that the OLCC
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maytakeon the Liquor LicenseApplication for Metropolis LLC
Crime Statistics through August 202025
RecommendedAction: Receive the report.
Building Activity for September 202030
RecommendedAction:Receive the report.
9.TABLED BUSINESS
None.
10.PUBLIC HEARINGS
None.
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 Mayoralprerogative.
October 12, 2020Council Agenda Page ii
A.Workshop-Utility Service Ordinance & Resolution setting ROW Utility 39
License and Usage Fee Rates
Recommended Action:The City Council will be having a workshop
to discuss the upcoming adoption of a utility services ordinance that
will implement a new licensing program to regulate utility service
providers that utilize the City right-of-way ("ROW") and that do not
otherwise have a franchise agreement with the City. No action is
suggested to be taken at this work session.
Council Bill No. 3137 –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
Council Bill No. 3138-A Resolution Setting the Right-of-Way Utility
License and Usage Fee Rates within the City of Woodburn
B.PUBLIC TESTIMONY ON THIS ITEM IS CLOSED. NO PUBLIC COMMENTS 101
WILL BE RECEIVED
Design Review DR 2019-05Allison Way Apartments Final Decision
Recommended Action: Authorize the mayor to sign the attached
final land use decisiondocument.
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.
A.Call-Up Briefing: Planning Commission Approval of a Variance for Eric 134
& Charmaine Cottrell at 1311 E. Lincoln Street (VAR 2020-04)
Recommended Action:Staff recommends no action and briefs the
Council on this item pursuant to Woodburn Development Ordinance
(WDO) Section 4.02.02. The Council may call up this item for review if
desired and, by majority vote, initiate a review of this decision.
13.CITY ADMINISTRATOR’S REPORT
14.MAYOR AND COUNCIL REPORTS
15.EXECUTIVE SESSION
A.
To review and evaluate, pursuant to standards, criteria and policy
directives adopted by the governing body, the employment-related
performance of the chief executive officer of any public body, a
public officer, employee or staff member unless the person whose
performance is being reviewed and evaluated requests anopen
hearing pursuant to ORS 192.660 (2)(i).
October 12, 2020Council Agenda Page iii
B.
To consider records that are exempt by law from public inspection
pursuant to ORS 192.660 (2)(f).
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
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.
October 12, 2020Council Agenda Page iv
PROCLAMATION
D OMESTIC V IOLENCE A WARENESS M ONTH –O CTOBER 2020
Whereas,the impact of domestic violence extends beyond individuals, reaching into families and
communities; and
Whereas,in the last year Marion County has experienced three domestic violence homicide crimes
resulting in the deaths of four victims; and
Whereas,the Marion County District Attorney’s office received 1,126 law enforcement reports of
domestic violence las year and filed 989 domestic violence cases; and
Whereas,the Marion County Courts received 1,128 requests for protective orders last year; and
Whereas,the Center for Hope and Safety received 33,189 contacts to their program last year and
provided 4,855 nights of shelter; and
Whereas,the Marion County Victim Assistance Division provided 20,737 victim services and
assisted 1,728 victims of domestic violence last year, walking alongside them and giving them a voice in
the criminal justice process; and
W
hereas,we know, as individuals, we can make a difference by speaking up and reaching out to
help victims and survivors; and
NOW, THEREFORE, the Mayor for the City of Woodburn proclaims October 2020 as
Domestic Violence Awareness Month
And resolvesto honor those who have died and acknowledge those who have survived by
supporting meaningful and accessible services that create safety and hope for survivors in our community.
I
N WITNESS WHEREOF,I have hereunto set my hand and caused the seal of theCity of
Woodburn to be affixed this 12th day of October 2020.
_______________________________
Eric Swenson, Mayor
City of Woodburn
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COUNCIL MEETING MINUTES
SEPTEMBER 14, 2020
DATECOUNCILCHAMBERS,CITY HALL, CITY OF WOODBURN, COUNTY OF
MARION, STATE OF OREGON, SEPTEMBER 14, 2020
CONVENEDThe meeting convened at 7:03 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,Finance Director Turley,Assistant City Attorney Granum, Human
Resources Director Gregg, Engineering Director Liljequist, Parks and Recreation Manager
Cuomo, City Recorder Pierson
PROCLAMATION
The Mayor read a proclamation declaring September 15th - October 15th, 2020 Hispanic Heritage
Month.
CONSENT AGENDA
A.Woodburn City Council minutes of August 10, 2020,
B.Woodburn City Council Work Session minutes of August 31, 2020,
C.Building Activity for August 2020,
Morris/Ellsworth… adopt the Consent Agenda. The motion passed unanimously.
PUBLIC HEARINGS
Continuance of Council Call-up Hearing of Planning Commission 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)
A Public Hearing to consider input on Continuance of Council Call-up Hearing of Planning
Commission 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). Mayor Swenson declared the hearing open at 7:09 p.m. for the purpose of
hearing public input on Continuance of Council Call-up Hearing of Planning Commission
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). The Mayor asked the Council if they had any declarationsto add from the last public hearing.
Page 1 - Council Meeting Minutes,September 14, 2020
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COUNCIL MEETING MINUTES
SEPTEMBER 14, 2020
There were no further declarations.City Recorder Pierson read the Public Hearing Statement.
Community Development Director Kerr provided a staff report. Eugene Labunsky provided
information on the application. Mayor Swenson asked if anyone from the public would like to
speak in favor of the application. Steve Rippeteau, 562 Prairie St., stated that he reviewed the
changes made and he is satisfied with what has been done. Mayor Swenson asked if anyone from
the publicwould like to speak in opposition of the application.No one from the public spoke in
opposition of the application. Mayor Swenson declared the hearing closed at 7:44 p.m.
Carney/Schaub
…City Council tentatively approve Design Review 2019-05, Property Line
Adjustment 2019-04 and Phasing Plan 2019-01 with the Planning Commission conditions and
direct staff to prepare a final decision document for Council consideration. On roll call vote the
motion passed unanimously.
Carney/Ellsworth…City Council tentatively approve Street Exception 2020-05 with the 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. On roll call vote the motion passed unanimously.
Carney/Morris… 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 consideration incorporating the parking ratio and compact parking numerical
standards per the applicants letter exhibit. On roll call vote the motion passed unanimously.
FY 2020-2021 Supplemental Budget Request for Acceptance 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
A Public Hearing to consider input on the FY 2020-2021 Supplemental Budget Request for
Acceptance 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. Mayor Swenson declared the hearing open at 7:52 p.m. for the purpose of hearing public
input on the FY 2020-2021 Supplemental Budget Request for Acceptance 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.Finance
Director Turleyprovided a staff report. Mayor Swenson asked if anyone from the public would
like to speak on this subject. No members of the public wished to speak in either support or
opposition of the FY 2020-2021 Supplemental Budget Request for Acceptance 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. Mayor
Swenson declared the hearing closedat 7:56p.m.
COUNCIL BILL NO. 3137 –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
Carney introduced Council Bill No. 3137.City Recorder Pierson read the billtwice by title only
Page 2 - Council Meeting Minutes,September 14, 2020
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COUNCIL MEETING MINUTES
SEPTEMBER 14, 2020
since there were no objections from the Council. Assistant City Attorney McKenzie Granum
provided a staff report. Reba Crocker,ROW Consultants LLC, provided information and answered
questions fromCity Council. There was a consensus of the City Council that they did not have
enough information on this item to voteon it tonight and asked that staff get information on the
City’s costs for managing the right-of-way,pass through costs, who currently does not pay but
would be included and if it will cost the City more to implement it then it costs right now.
COUNCIL BILL NO. 3139 –A RESOLUTION APPROVING A SUPPLEMENTAL
BUDGET FOR FY 2020-2021
Carney introduced Council Bill No. 3139. City Recorder Pierson read the bill by title only since
there were no objections from the Council. Finance Director Turleyprovided a staff report.Mayor
Swenson declared Council Bill No. 3139 duly passed.
T-MOBILE WATER TOWER SITE LEASE AGREEMENT
Carney/Morris…Authorize the City Administrator to enter into the attached Water Tower Site
Lease Agreement with T-Mobile. Assistant City Administrator Row provided a staff report. The
motion passed unanimously.
CITY ADMINISTRATOR’S REPORT
The City Administrator reported the following:
Commended City staff and noted that 18 employees have been impacted by the fires and
those involved in public safety are still showing up and doing their job.
Communication isup to speed and up to date with information pertaining to Woodburn.
The City has received accolades for the updates that the City is providingin relation to the
wild fires.Air quality is biggest threatto our community and encouraging people to stay
indoors.
There was an incident were a City bus was hijacked. The bus driver was able to get away
and thebus wasthen stolen. There were no injuries and the bus received a flat tire as the
only damage.
The City is working with Love Inc. on having a clean air shelterand there is a breathing
room at Washington Elementary to get healthier air.
City has directed people who want to help with wild fires to Marion County who has the
information on how people can help.
Trying to communicate with Council as much as he can and sending out information.
Police Chief Ferraris provided information on his daily communications as the City’s
Emergency Manager.
MAYOR AND COUNCIL REPORTS
Councilor Schaub thanked staff and the communications team and Chief Ferraris have been doing
a stellar job. She stated that her heart goes out to family’s who have had to weather this.
Councilor Ellsworth stated that she appreciates the calming words from City staff and that it is a
good message the City is sending out about taking care of family, staying indoors and helping your
Page 3 - Council Meeting Minutes,September 14, 2020
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COUNCIL MEETING MINUTES
SEPTEMBER 14, 2020
neighbors if you can.
Councilor Cabrales gave a shout out to those volunteering and that PCUN can help direct people
to places that are taking donations.
Councilor Cornwell thanked Scott and Jim for keeping everything organized and making her feel
safe. She was happy to see the street sweeper taking care of ash on the street. She also wants to
be sure that protocols are being followed so that we don’t get in each other’s way and have to clean
up messes because we overstepped.
Councilor Morris thanked first responders and those affected by this. He stated that he looks
forward to the after action report.
Councilor Carney stated that he concurs with what has already been said and we owe a debt of
gratitude to the fine professionals who have been working with us.
ADJOURNMENT
Ellsworth/Morris… meeting be adjourned. The motion passed unanimously.
The meeting adjourned at 9:21 p.m.
APPROVED
ERIC SWENSON, MAYOR
ATTEST
Heather Pierson,City Recorder
City of Woodburn, Oregon
Page 4 - Council Meeting Minutes,September 14, 2020
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Agenda Item
October 12, 2020
TO:Honorable Mayor and City Council through City Administrator
FROM:Eric Liljequist, Public Works Projects & Engineering Director
SUBJECT:Acceptance of a Statutory Warranty Deed for Right-of-Way
Dedication and Two Public Utility Easements at 1220 Fifth Street,
Woodburn, OR 97071(Tax Lot051W07DB02500)
RECOMMENDATION:
Authorizethe acceptance ofa Right-of-Way dedication and twoPublic Utility
Easements tobe granted byPacific Valley Auto, LLC, owners oftheproperty
located at 1220 Fifth Street, Woodburn, OR 97071 (Tax Lot 051W07DB02500).
BACKGROUND:
As a condition of approval ofDesign Review (DR 2019-04), the property owner is
required to provide a 3-foot wide Right-of-Way dedication, and a 5-foot wide
Public Utility Easementtocomply with the cross-sectional street requirements of
the Woodburn Transportation System Plan.The property owner also agreed to
dedicate a 33-foot wide Public Utility Easementat the southerly property
boundary to allowthe City to reserve this land for future Right-Of-Way for
importanteast-west connectivity through the local road network.
DISCUSSION:
The 3-foot wide Right-of-Way dedication is located alongthe western boundary
of the property, adjacent toFifth Street. The 5-foot wide Public Utility Easement is
located alongboth the western boundary of the property, adjacent toFifth
Street.The 33-foot wide Public Utility Easement is located along the entire
southerly property boundary. The Public Utility Easement dedications provide a
permanent Right-of-Wayand permanent easement to construct, reconstruct,
and operatepublic and franchised utilities.
Agenda Item Review:City Administrator __X__City Attorney __X___Finance __X__
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Mayor and City Council
October 12, 2020
Page 2
FINANCIAL IMPACT:
There is no cost to the City for the Right-of-Way Dedication and Public Utility
Easements.
ATTACHMENTS:
A copy of the Statutory Warranty Deed andPublic Utility Easement documents
areincluded in Exhibit “A” and Exhibit “B”for each dedication.
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Agenda Item
October 12, 2020
TO:Honorable Mayor and City Council through City Administrator
THRU: James C. Ferraris, Chief of Police
FROM:Andy Shadrin,Lieutenant
SUBJECT:Liquor License Application
RECOMMENDATION:
The Woodburn City Council does not provide a recommendation for an
approval or denialthat theOLCC may take on theLiquor License Application
for Metropolis LLC.
BACKGROUND:
Applicant: Noe Valenzuela-Valles
855 Larch Street
Canby OR, 97032
503-989-2318
Point of
Contact:Noe Valenzuela-Valles
855 Larch Street
Canby OR, 97032
503-989-2318
Business: Metropolis Growlers
347 N. Front St., # 7
Woodburn, OR 97071
503-989-2318
Owner(s): Noe Valenzuela-Valles
Agenda Item Review:City Administrator ______City Attorney ______Finance _____
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Honorable Mayor and City Council
October 12, 2020
Page 2
License Type(s):
Off-Premises – Maysell factory sealed containers of beer, wine and cider for
consumption off the licensed premises. May sell beer, wine, and cider in a
secure container, “growler”, for consumption off licensed premises
On August 4, 2020,the Woodburn Police Department received an application
forOff-Premises salesliquor license for Metropolis Growlers. The business will
operate as a beer/wine/cider sales and growler fill station. The business will be
located inside theMetropolis Marketplace and Venue, which is located at 347
N. Front Street in Woodburn, Oregon 97071. The hours of operation are from12
PM to 2 PM on Sunday, 12 PM to 10 PM on Saturday and 2 PM to 10 PM Monday
through Friday. The establishment will have recorded music. The business will
have banquet seating available for upto 200 persons. The business will have no
outside seating. The Woodburn Police Department has not received any
communication from the public or surrounding businesses in support of or
against the proposed change.
DISCUSSION:
The Police Department has completed a background investigationon
Metropolis Growlers, Metropolis Marketplace and Venue andthe subject listed
on the OLCC application,Noe Valenzuela-Valles.Noe Valenzuela-Valleshas
several arrest and conviction cycles in his personal computerized criminal history
check. The most recent arrest occurred on May 24, 2013, for a bench warrant
foran original charge of DUII. On January 6, 2013, Noe Valenzuela-Valles was
arrested and later convicted of misdemeanor criminal driving while suspended.
On October 21, 2012, Noe Valenzuela-Valles was arrested and later convicted
of DUII. On April 14, 2002, Noe Valenzuela-Valles was arrested for a theft,
fraudulent use of a credit card and identity theft. There is no information
available in the career criminal history check that thetheft, fraudulent use of a
credit card and identity theftcharges concluded in a court conviction.
According to the career criminal history check the most recent arrest was over
six years ago. The theft and fraud arrest occurred over seventeen years ago.
On April 28, 2020, Woodburn Police had responded to Metropolis Marketplace
and Venue in regards to a social event that was occurring at the location. It
was discovered that Noe Valenzuela-Valles had hired uncertified bodyguards
and had allowed the upstairs banquet venue to be rented for a funeral wake.
During that time, any social gatherings were prohibited by Governor’s order 20-
07, due to the unfolding Covid-19 pandemic. It was noted that there were
attendees of the wake that were in violation of the social distancing orders.
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Honorable Mayor and City Council
October 12, 2020
Page 3
Noe Valenzuela was advised that the event was in violation of the governor’s
order. The following day it was discovered that the wake was still occurring
despite law enforcement contact the prior day. At that time no police arrest or
citations were issued for the violation of the governor’s order but reports were
forwarded to OLCC, Oregon Health Agency and OSHA.
The Salem office of OLCC was contacted for additional information in regards
to their review of theApril 28, 2020, Governor’s order 20-07, violation report
forwarded from the Woodburn Police Department. OLCC advised that the
police reports documenting the violation of order 20-07had been received and
reviewed prior to issuance of a previous liquor license after the April 28, 2020,
incident. OLCC advised that Noe Valenzuela (Metropolis Growlers) has a
current liquor license and that thecurrent application is for additional liquor
license approvals. OLCC advised that the previously reported violation of
Governor’s order 20-07, would not impact the current license application since
the incident had already been reviewed and Metropolis Growlers was already
granted a liquor license after the reported violation.
There wasno other notableinformation in remaining database checks. Noe
Valenzuela-Valles has a valid State of Oregon operator’s license. Noe
Valenzuela-Valles has a number of driving related infractions on his driving
record that have involved driving without a valid license, insurance and
speeding, that occurred from 2012 through 2018. Noe Valenzuela-Valles was
most recently reinstated in his driving privileges on July6, 2018.
FINANCIAL IMPACT:
None
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Agenda Item
October 12, 2020
TO:Honorable Mayor and City Council
FROM:Jim Row, Assistant City Administrator
McKenzie Granum, Assistant City Attorney
SUBJECT:Workshop: Utility Service Ordinance & Resolution setting ROW Utility
License and Usage Fee Rates
RECOMMENDATION:
The City Council will be having a workshop to discuss the upcoming adoption of
a utility services ordinance that will implement a new licensing program to
regulate utility service providers that utilize the City right-of-way ("ROW") and that
do not otherwise have a franchise agreement with the City. No action is
suggested to be taken at this work session.
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 theJuly 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.
DISCUSSION:
Agenda Item Review:City Administrator __x____City Attorney __x____Finance __x___
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Honorable Mayor and City Council
October 12, 2020
Page 2
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 existing franchises agreements are exempted until their
agreements expire;
Preserves the City’s right to enter into franchise agreements with individual
providers in situations where the public interest warrants;
Wire line cable television providers will continue to operate under franchise
agreements due to protections under FCC law;
Each license with utility providers will be for a term of five (5) years;
Licenses are transferrable upon the written consent of the City, provided
the transfers are consistent with state and federal law;
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Honorable Mayor and City Council
October 12, 2020
Page 3
Providers seeking license renewals shall submit license applications at least
thirty (30) days, but not more than ninety (90) days prior to expiration;
Includes provisions under which the City may terminate licenses;
Includes requirements that providers must comply with related to the
location, construction, maintenance and removal of facilities in the ROW;
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 Policy Group LLC on behalf of Verizon Wireless
August 11th Letter from Wireless Policy Group LLC on behalf of New Cingular
Wireless PCS, LLC ("AT&T")
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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.
46
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,
18
63
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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70
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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:
Section 1. Title. The ordinance willbe known and may be referenced as
the Utility Service Ordinance.
Section 2. Purpose and Intent. The purpose and intent of this Ordinance is
to:
A. Permit and manage reasonable access to and use 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;
Page 1 – COUNCIL BILL NO. 3137
ORDINANCE NO. 2583
72
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.
Page 2 – COUNCIL BILL NO. 3137
ORDINANCE NO. 2583
73
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.
Section 5. Definitions. For the purpose of this Ordinance the following
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.
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
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.
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 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
Section 14. Penalties and Interest on Usage Fee. Penalties and interest
imposed by this section are in addition to any penalties that may be assessed
under other ordinances 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.
Section 17. Compliance. Every Utility 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 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.
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 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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99
* "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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100
Agenda Item
October12, 2020
TO:Honorable Mayorand City Councilthrough City Administrator
FROM:Chris Kerr, Community Development Director
Colin Cortes, AICP,CNU-A, Senior Planner
S
UBJECT:Design Review DR 2019-05 Allison Way Apartments Final Decision
RECOMMENDATION:
Authorize the mayor to sign the attached final decision document.
BACKGROUND/DISCUSSION:
The City Council had called up the Planning Commission decision on the subject
project pursuant to Woodburn Development Ordinance (WDO) 4.02.02 and then
on July 13 and September 14, 2020held public hearings that resulted in the
Council on September 14 tentatively approvingthe project the same as did the
Planning Commission except that Condition:
1.EX2 is revised such that Stacy Allison Way will have 5-foot bicycle lanes;
2.V9-2 that establishes the standard of approved Variance request 2 is
revised from a parking ratio minimum average of 1.77 stalls per dwelling to
an absolute minimum of 1.9 stalls per dwelling; and
3-1 that establishes the standard of approved Variance request 3 is
3.V5-
revised from a compact parking maximum of 60% to 25%.
FINANCIAL IMPACT:
None.
ATTACHMENT:
1.Final Decision document(October12,2020) with its Attachment 107
Applicant’s letter (The Council agenda packet copy of the final decision
document excludes the remaining attachmentslisted on final decision final
pagethat were attachments to the July 13, 2020 Council agenda packet.)
Agenda Item Review:City Administrator __X___City Attorney __X __Finance _X___
101
Final Decision
City Council
File number(s): DR 2019-05, EXCP 2020-05, PP 2019-01, PLA 2019-04, & VAR 2019-04
Project name: Allison Way Apartments
Date of decision: October 12, 2020
Applicant: Leeb Architects; attn Robert Leeb, Principal in Charge & Doug Hamilton, 308 SW
1st Avenue, Suite 200 Portland, OR 97204-3567
Landowner: Stacy Allison Way Holdings, Attn: Eugene Labunsky, 25030 SW Parkway Avenue,
Suite 110, Wilsonville, OR 97070-9816
Site location: 0 Hooper St & 0 Stacy Allison Way NE; Tax Lots 052W14 02000, 2100, & 2300
Summary: First, the Planning Commission held a public hearing on May 28, 2020 and approved by 3-2
vote the consolidated applications package (Type III) with the conditions recommended by staff through
the staff report published May 21, except for three revision items:
1.Striking transportation Condition T-BP9 that would have required the Evergreen Path, a
bicycle/pedestrian path approximately 350 feet (ft) long within the unimproved Evergreen right-
of-
to the existing Montebello 2 subdivision bicycle/pedestrian path that connects to Baylor Drive at
Citadel Street per the image below:
102
Exhibit T-BP9A. Location and Conceptual Alignment
2.Revising Street Exception Condition EX2 to omit a landscaped median from the required custom
cross section of the Stacy Allison Way extension to maintain a continuous two-way left turn lane
along and between Interstate 5 and the approximately 800 ft of site development frontage that
has no driveways; and
Exhibit EX2b revised June 2 (Median example concept not to scale.)
3.Approving variance request 2 regarding parking ratio minimum (WDO Table 3.05A, Residential 1)
and setting a minimum average of 1.77 stalls per dwelling. (See Condition V9-2.)
Second, the City Council called up the Commission decision on June 8, 2020 pursuant to Woodburn
Development Ordinance (WDO) 4.02.02 and held a public hearings on July 13 and September 14, 2020
that resulted in the Council on September 14 tentatively approving the project per the
September 1 letter of testimony that was agenda item Attachment 1 (final decision Attachment 106).
The Council tentative approval results in conditions of approval the same as were in the Planning
Commission decision document except that Condition:
1.EX2 is revised such that Stacy Allison Way will have 5-foot bicycle lanes;
2.V9-2 that establishes the standard of approved Variance request 2 is revised from a parking
ratio minimum average of 1.77 stalls per dwelling to an absolute minimum of 1.9 stalls per
dwelling; and
DR 2019-05 Allison Way Apts. Council Final Decision - Page 2 of 28
103
3.V5-3-1 that establishes the standard of approved Variance request 3 is revised from a compact
parking maximum of 60% to 25%.
Staff returned to Council on October 12, 2020
signature.
Two (2) parties testified (besides the applicant). They are listed at bottom.
The request was for site development of three lots totaling 19.03 acres into 586 apartments across 23
buildings across Phases 1 & 2 such that the one parcel north/northeast of Hooper Street (5.93 acres)
would be 180 apartments across 7 buildings as Phase 1 and the two parcels south/southwest of Hooper
(13.1 acres) would have 406 apartments across 16 buildings as Phase 2.
The buildings are three-story walk-ups, conventional for new construction. Each phase has a common
building and landscaped and paved common areas.
Regarding street improvements, Phase 1 includes for existing Stacy Allison Way removal of curb-tight
sidewalk to install a planter with street trees and construct new, wide sidewalk. Phase 2 includes
extension of Stacy Allison Way that relocates the dead-end from Hooper Street south/southwest along
Interstate 5 (I-5) to city limits.
The subject property is in the Commercial General (CG) zoning district.
Section references are to the Woodburn Development Ordinance (WDO).
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Conditions of Approval:
General
G1. As part of building permit application, the applicant shall submit revised site plans meeting the
conditions of approval and obtain Planning Division approval through sign-off on permit issuance.
G2. The applicant or successors and assigns shall develop the property in substantial conformance with
the final plans submitted and approved with these applications, except as modified by these conditions
of approval. Were the applicant to revise plans other than to meet conditions of approval or meet building
code, even if Planning Division staff does not notice and signs off on building permit issuance, Division
staff retains the right to obtain restoration of improvements as shown on an earlier land use review plan
set in service of substantial conformance.
G3. References: The descriptions below define certain words, phrases, and assumptions in the context of
the conditions of approval:
-site walkway paved at least eight (8) feet wide to serve as a
bicycle/pedestrian path to and from sidewalk or to and from an off-street public
bicycle/pedestrian path and that is ADA-compliant.
north to south. A1 is in Phase
1, and A2 & A3 are in Phase 2.
two in Phase 1 and three in Phase 2 that is a landscaped
linear central common area framed by three buildings for
enclosing the common area.
et.
H1 & H2 are in Phase 1, and H3 & H4 are in Phase 2.
e of travelers using a particular type of transportation or
number of trips using a type, as examples walking, cycling, riding transit, and driving.
MUTCDManual on Uniform Traffic Control Devices of the U.S. Department of
Transportation (U.S. DOT) Federal Highway Administration (FHWA).
-center spacing, such as of trees or shrubs.
to the Oregon Department of Transportation.
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-site surface parking extending southeast and
buildings. Phase 1 has one and Phase 2 has two.
Lot 9) and the full extents of adjacent Allison and Hooper and the whole of their intersection.
subdivision Lots 7 & 8) to be consolidated and the full extent of adjacent Allison from Hooper.
refers to Public Works (the department) or public works (civil infrastructure) depending on
context.
.
-of-way.
ncrete; with a tabletop that is
raised at least four (4) inches above drive aisle grade, at least six (6) ft wide, flat, and stamped or
otherwise treated to have a pattern; and, with the vehicular ramps striped in compliance with
MUTCD Figure 3B-30, Option A, and with minimum and maximum slope ratios of 1:25 and 1:10
respectively.
standard specifications and drawings.
ees that conform to the WDO, including 3.06.03A and Table 3.06B.
Woodburn Transportation System Plan.
to vision clearance area as WDO 1.02 and 3.03.06 establish.
Woodburn Development Ordinance.
fers to the Woodburn Transit System.
G4. Due dates / public improvements:
a.By application: Unless a condition specifies otherwise, conditions including those relating to any
of final subdivision, final partition, property line adjustment or lot consolidation recordation are
due by building permit application. Prior to both any recordation of any final subdivision, final
partition, or property line adjustment and building permit application, the applicant shall submit
and obtain approval of an Address Assignment Request.
b.By issuance: Unless a condition specifies otherwise, ROW and easement dedications and
recordation(s), construction of frontage/street improvements, and construction of off-site, park,
and other public improvements are due by building permit issuance. Where phasing is relevant,
building permit issuance means issuance for the phase in which the conditioned improvement is
located. See also the Phasing Plan (PP) condition(s).
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G5. Recordation due dates: The applicant shall apply to the County for recordations of items that the City
requires no later than six (6) months past an anticipated Planning Commission tentative decision date, i.e.
by December 30, 2022, and shall complete recordations no later than almost three years past, i.e. by May
25, 2023. The due date to complete recordations shall not supersede when recordations are due relative
to the building permit stage.
G6. Public Improvements Civil Plan Review: The process by which to receive, review, and approve
drawings and other documents related to public improvements required by these conditions of approval
may be paired with or incorporated into building permit review, or, if directed by the City Engineer,
through a civil engineering plans (CEP) review process led by the Engineering Division. If opting for CEP,
the applicant shall not only follow the direction of the Engineer Division, but also take some actions to
facilitate tracking by Planning staff and coordination with Engineering:
a.Cover letter: Upon submitting application to the Engineering Division, simultaneously alert the
Planning Division through a cover letter to the attention of the Planning Division referencing the
intended or, if known, actual submittal date as well as the project name, project phase, tax lot
number(s), street address(es), and the land use / planning / zoning final decision conditions of
approval that require the public improvement that is the subject of the civil engineering plans.
Referencing conditions may be by quotation or citing the identification numbers (e.g., T-A1).
Identify the specific sheet (by number) or document page number that illustrates or notes how
each subpart of a condition is met.
b.-mail, and desired
date for City staff to respond with review comments. The cover letter may include these.
c.Plan copies: Submit to the attention of the Planning Division at least two plan size copies of plan
sets (24 by 36 inches). Within the cover sheet title b
d.Re-submittal fee: If there are multiple re-submittals, beginning with a third submittal / second
revised submittal and continuing with each subsequent submittal, the applicant shall pay through
the Planning Division into City general revenue a fee of $100.
G-PW. Public Works: Follow the appended Public Works comments (May 19, 2020; Attachment 102A).
If conflict arises between implementation of public works conditions and referenced standards in that
document with implementation of the remaining conditions in this document, the Assistant City
Administrator would arbitrate or mediate based on guidance from legal counsel, the Director, the Public
Works Engineering Director, and the City Engineer.
Design Review 2019-05
applicant shall resolve existing easements with newly required easements so as to conform to the
streetside PUE minimum width of five (5) ft per WDO 3.02.01B, conform to all other conditions, and follow
the direction of the City Engineer per WDO 3.02.01A.
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D2. Driveways:
a.Number: To meet WDO 3.04.03B.1 regarding access management, the number of driveways is
limited as follows:
ROW Phase 1 Phase 2
Allison 1 joint (A1) 2 (A2 & A3)
Hooper 2 (H1 & H2) 2 (H3 & H4)
b.Approach / apron / curb cut: Driveways shall conform to PW SS&Ds, Section 4150.
c.Traffic control: To meet WDO 3.05.02J:
(1)Parking on site: The central and narrowest drive aisle in each of the parking courts and
between Buildings P & R shall have one-way traffic to the northwest, and the applicant shall:
(a)Stripe on the pavement an arrow at each of the beginning and end of each aisle; and
(b)Install at the end of each aisle a do-not-enter sign that complies with MUTCD Figure 2B-
11, sign R5-1.
(2)Allison: Outbound left turns are prohibited from driveway A3, and the applicant shall install
a no left turn sign that complies with MUTCD Figure 2B-4, sign R3-2.
D3. Cross access / joint driveway A1: To meet WDO 3.04.03B, the applicant shall:
a.On Tax Lot 052W14 02300 (Town Center of Woodburn subdivision Lot 9; Phase 1):
(1)Spur the easterly northeast-southwest drive aisle to the north property line of Tax Lot
052W13 01600 (subdivision Lot 10) at minimum width of twenty (20) ft minimum width
between face of curb, and
(2)Spur the westerly northeast-southwest drive aisle to the north property line of Tax Lot
052W13 01600 (subdivision Lot 10) at minimum width of twenty (20) ft minimum width
between face of curb.
b.To meet WDO 3.04.03B.1 & 3, dedicate a public access and utility easement that is to the
satisfaction of the Director, revocable only with the concurrence of the Director, and connects the
two bulges with driveway A1.
c.Have the easement width be either (i) minimum twenty (20) ft and centered on the drive aisle
centerlines or (ii) minimum twenty-eight and a half (28½) ft measured southwest from the north
lot line.
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d.Have the easement text include a paragraph that states that the delineated easement area serves
as a public access easement to the benefit of Lot 10 of the Town Center at Woodburn subdivision
plat (Tax Lot 052W13 01600), and such cross access to and from the joint driveway at Stacy Allison
Way shall not be revoked without concurrence of the City Community Development Director in
conformance with Woodburn Development Ordinance (WDO) 3.04.03B.3. Place such text under
a Cross Access & Joint Driveway Easement header.
D4. Parking signage/striping: To meet WDO 3.05.02J, the applicant shall designate compact stalls
ne (1) foot high minimum and stripe them as such in the field prior to building
permit final inspection.
D5. Parking stall double striping: To meet WDO 3.05.02K, the applicant shall delineate parking stalls with
double parallel lines pursuant to Figure 3.05C and stripe them as such in the field prior to building permit
final inspection.
D6. Bicycle parking near main entrance: To meet WDO 3.05.03E, prior to building permit final inspection
the applicant shall provide bicycle parking within fifty (50) ft of a main entrance. In the context of a new
construction apartment complex with conventional three-story buildings with open stairwells, each
apartment building has two main entrances as follows:
a.In all apartment buildings except Phase 1 B & C and Phase 2 B, C, J, & L there are four points where
a building main wall plane intersects the walkway serving building ground floor entrances and the
stairwell to upper floor entrances;
b.In Phase 1 Buildings B & C and Phase 2 Buildings B, C, J, & L there are six such points;
c.Each building has either (a) two walkways with two points each totaling the four or (b) three
walkways with six points total; and so
d.The condition shall apply to three points minimum for each of Phase 1 Buildings B & C and Phase
2 Buildings B, C, J, & L and two points minimum for remaining buildings and apply to one point
minimum per walkway.
D7. Patios: Visual separation shall conform to WDO 3.07.05B.1a as follows:
a.Pavement: As proposed, patios shall be paved with brick, concrete pavers, or poured concrete.
b.Railings/fencing & gate: The outermost edges of patio concrete slabs that do not abut building
walls shall have either metal or wood railings or cedar wood fencing at least three (3) ft high. If
the latter, then opacity shall be full, but if fencing is higher than the minimum height, it shall be
no more than ninety percent (90%) opaque, such as by being fully opaque from grade but from
the top having a lattice pattern. The railings or fencing shall have a gated opening at least two (2)
ft and four (4) inches wide.
c.Height maximum: the railings or fencing maximum height shall be either five (5) ft or, where a
patio faces a courtyard, three and a half (3½) ft.
d.Shrubbery: Evergreen shrubbery shall line fully the outermost edges of patio concrete slabs,
except along the gated opening.
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Phasing Plan 2019-01
PP1. Phases / Phasing:
a.Number and extent: As Condition G3 defines.
b.Order / ordering: The applicant shall construct Phase 1 first.
c.Improvements: Improvements within a phase are due by that phase.
d.Vesting: Construction of Phase 1 shall vest land use / planning / zoning entitlement for Phase 2;
but, were the applicant (or successors and assigns) to fail to make use of any of the two provisions
of WDO 4.02.04B.1 or 3 to avoid expiration, expiration shall occur upon one of the two following
events:
(1)The arrival of July 1, 2030; or
(2)City adoption of a unified development ordinance replacing the WDO were to have intervened
on or between July 24, 2023 and June 24, 2030, approximately 3 to 10 years from the
anticipated land use final decision date.
Property Line Adjustment 2019-04
PLA-1. Recording: To meet WDO 5.01.08B.5., upon City approval of the subject PLA, the applicant shall
revise the drawing or drawings as needed and record the re-plat (or whatever it is that the County terms
it) with the County. The expiration date is per WDO 4.02.04B, and were subsection 2 that refers to "the
activity approved in the decision has commenced" to become relevant, that provision would mean
recordation of the subject PLA, and to this end the applicant shall apply to Marion County for
recordation by December 30, 2022 and complete recordation by May 25, 2023. In any case, the
applicant shall record the re-plat prior to both City assignment of street addresses, which would follow
the applicant submitting an address assignment request, and building permit application.
Street Exception
EX1. Hooper:
a.Existing improvements: The planter strips, including curb widths, may remain 6½ ft instead of 7
ft, sidewalks may remain 5½ ft instead of 5 ft, and existing curbs may remain in place where not
otherwise disturbed by newer improvements.
b.Curb extensions: The applicant shall construct the proposed four curb extensions that cap the on-
street parking aisles.
c.Mid-block crossing: The applicant shall construct of the proposed two mid-block crossings of
Hooper Street only the southeastern one and shall:
(1)Construct it of poured concrete minimum width of eight (8) ft;
(2)Stamp or otherwise treat the concrete to have a pattern that drivers would sense tactilely as
well as visually.
(3)Install ADA-compliant curb ramps and pave connections to the sidewalks.
(4)Provide signage and striping per PW SS&Ds, or, if none exist for a given topic, per the direction
of the City Engineer. Required signage may include two advance warning signs for drivers;
and
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(5)Meet federal or state criteria or guidelines that the City Engineer may establish in writing as
standards for the mid-block crossing.
d.Crosswalk upgrade: Instead of the proposed northwestern of the two proposed mid-block
crossings, the applicant shall traffic calm the crosswalk of the southeast leg of the T-intersection
of Allison & Hooper. The applicant shall construct a poured concrete crosswalk at minimum width
of eight (8) ft and that is either stamped or otherwise treated to have a pattern tactilely that
drivers would sense tactilely as well as visually. The applicant shall stripe the crosswalk.
e.Street trees: The applicant shall plant trees at 1 per 30 ft of frontage, equaling fourteen (14) trees
per frontage (instead of 1 per 50 typical, 9 trees per frontage). For up to no more than two (2) of
the absolute number of trees required along each frontage (4 total), the applicant may pay a fee
in-lieu of $125 per tree. This fee provision is intended to substitute for the applicant invoking
3.06.03A.3 (Director modification/relocation).
EX2. Allison: The City modifies and approves the street exception request as follows regarding
improvements and that applies to both phases:
a.Phase 1:
(1)Northbound travel lane: Either narrow from twelve (12) to eleven (11) ft, or, restripe the
center left turn lane from twelve (12) to eleven (11) and shift the travel lane accordingly.
However, were the sidewalk described below within this list were to overlap the PUE by at
least one and a half (1½) ft, if the bicycle lane is removed, or by up to four and a half (4½) ft,
if the bicycle lane remains, no lane narrowing would be required.
(2)Bicycle lane s: Remove or narrow to Minimum five (5) ft each.
(3)Planter strip: Install a planter strip six (6) ft wide and landscape with street trees at 1 per 30
ft of frontage, equaling twenty (20) trees along the Phase 1 frontage (instead of 1 per 50
typical). The total number shall be divided evenly between either Betula pendula \[silver or
European white birch\] or another Betula \[birch\] species and an evergreen species among any
of Magnolia grandiflora
Arbutus menziesii \[Pacific madrone\], and Tsuga heterophylla \[Western hemlock\]. Ninety-
seven percent (97%) of the remainder of the strip shall be medium size category shrubbery to
the minimum size at planting per Table 3.06B and at maximum size that maintains
conformance with VCA, and at least two (2) distinct openings in the shrubbery that total the
remaining area of three percent (3%) shall be lawn grass.
(4)Sidewalk: Construct a sidewalk as a bicycle/pedestrian path at minimum width of eight (8) ft
(whether or not a northbound bicycle lane remains) that the City shall allow to overlap the
streetside PUE by at least a half (½) ft and as much as four and a half (4½) ft from edge of
ROW. If and where sidewalk would need to deflect or meander, such as at driveway A1 or at
the northeast corner of Allison & Hooper, it may fully overlap a streetside PUE.
(5)Striping:
(a)Bicycle: At the Phase 1 north end where the existing bicycle lane will continue at the
north side of driveway A1, at the opening of the bicycle lane the developer shall stripe an
MUTCD-compliant bicycle lane symbol or symbols.
(b)Turn: The applicant shall stripe a turn arrow within the existing center left turn lane
southbound at Hooper.
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(6)Utilities: Relocate underground/subsurface utilities that would conflict with street trees, such
as a potable water line, and surface utilities such as street light poles and boxes to be within
either or both of the planter strip and a streetside PUE. Existing covered vaults may be
incorporated within altered or additional sidewalk if meeting PW SS&Ds.
(7)NW side landscaping: The following applies between the project north end and the south end
of the existing stormwater detention pond fencing a point approximately 330 ft southwest
along Allison ROW from Hooper centerline. The applicant shall plant at least two hundred
and forty-eight (248) woody shrubs of large size category as WDO Table 3.06B defines, of one
or more evergreen species capable of growing to a mature minimum height of ten (10) ft
(preferably Taxus brevifolia var. reptaneta \[English yew reptaneta variant\]), and with average
o.c. spacing of four (4) ft.
b.Phase 2 / extension:
(1)Lanes, travel: Minimum width twelve (12) ft.
(2)Lane, center left turn lane and turn pockets: Width eleven (11) ft.
(3)Bicycle lane s: Northbound: none; and, southbound, either none or mMinimum five (5) ft
each.
(4)Planter strip: Install a planter strip six (6) ft wide and landscape with street trees at 1 per 30
ft of frontage, equaling forty-one (41) trees along the Phase 2 frontage (instead of 1 per 50
typical). The total number shall be divided evenly between Betula pendula \[silver or European
white birch\] or another Betula \[birch\] species and an evergreen species among any of
Magnolia grandiflora
Arbutus menziesii \[Pacific madrone\], and Tsuga heterophylla \[Western hemlock\]. Ninety-five
percent (95%) of the remainder of the strip shall be medium size category shrubbery to the
minimum size at planting per Table 3.06B and at maximum size that maintains conformance
with VCA, and at least six (6) distinct openings in the shrubbery that total the remaining area
of five percent (5%) shall be lawn grass.
(5)Sidewalk: Construct a sidewalk as a bicycle/pedestrian path at minimum width of eight (8) ft
(whether or not there is a northbound bicycle lane) that the City shall allow to overlap the
streetside PUE by at least a half (½) ft and as much as four and a half (4½) ft from edge of
ROW. If and where sidewalk would need to deflect or meander, such as at driveways A2 and
A3 or at the southeast corner of Allison & Hooper, it may farther overlap a streetside PUE.
(6)Median: \[previously struck by the Planning Commission\]
(7)Turn areas: At the north, the median shall \[previously struck by the Commission\]
(8)NW side landscaping: The following applies between the fencing south end and the south
end of extended Allison. The applicant shall plant at least two hundred and fifty-two (252)
woody shrubs of large size category as WDO Table 3.06B defines, of one or more evergreen
species capable of growing to a mature minimum height of ten (10) ft (preferably Taxus
brevifolia var. reptaneta \[English yew reptaneta variant\]), and with average o.c. spacing of
four (4) ft.:
(9)Interim signage: Signed barricades remain required per WDO 3.01.05A.2.b & c. and to PW
SS&Ds. The developer shall also install an MUTCD-compliant dead-end sign, either W14-1 or
W14-2, at the intersection of Allison & Hooper for southbound drivers. The City Engineer may
require the developer to install either (a) also at the intersection either a W14-1a or a W14-
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2a sign to warn drivers turning south from Hooper that Allison ends in the left direction as the
arrow within the sign copy would indicate, or (b) a sign or signs serving similar purpose.
Design Review 2019-05: Transportation
Exhibit T Vicinity map
T-A1. Evergreen & W. Hayes: The developer shall:
a.Mitigation fee / Fee in-lieu: Pay a mitigation fee or fee in-lieu of $33,000 to fund a transportation
study. This is due by Phase 2, building permit issuance. \[TIA\]
b.Evergreen sidewalk west: See Condition T-BP2.
T-A2. Allison & Evergreen: The developer shall pay a mitigation fee or fee in-lieu of $33,000 to fund a
transportation study. This is due by Phase 2, building permit issuance. \[TIA\]
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T-A3. OR 214 & Evergreen: The developer shall pay a mitigation fee or fee in-lieu of $15,000 to fund a
transportation study, specifically to investigate corridor signal timing and coordination adjustments in
coordination with ODOT. This is due by Phase 1, building permit issuance. \[R10\]
T-BP1. Allison & Lawson: The developer shall upgrade the T-intersection so that the south landing of
either the east or west leg crosswalk has an ADA-compliant curb ramp and the crosswalk is striped. This
is due by Phase 1, building permit issuance.
T-BP2. Evergreen sidewalk west: The developer shall fill in the sidewalk gap along the Evergreen
frontage of Tax Lot 052W12C 01600 (601 Evergreen Road). The sidewalk shall be minimum eight (8) feet
wide and located no closer than one (1) ft from edge of ROW and no more than six (6) ft from edge of
ROW. The developer shall to the extent feasible meander the sidewalk as needed to save existing trees
in or partially within existing ROW, upgrade the intersection west leg crosswalk by installing an ADA-
compliant north curb ramp, and stripe the crosswalk. This is due by Phase 1, building permit issuance.
\[P6\]
T-BP3. Evergreen sidewalk east: The developer shall fill in the sidewalk gap along the Evergreen
frontage of Tax Lots 052W12DC01400 (2333 W. Hayes Street), 052W12DC01200 & 1300, and
052W12DB04400 (2330, 2340, & 2343 Oregon Court). The sidewalk shall be minimum six (6) feet wide
and located no closer than one (1) ft from edge of ROW and no more than six (6) ft from edge of ROW.
The applicant shall to the extent feasible meander the sidewalk as needed to save existing trees in or
partially within existing ROW, upgrade the W. Hayes intersection east leg crosswalk by installing an ADA-
compliant north curb ramp, and stripe the crosswalk. This is due by Phase 2, building permit issuance.
\[P6\]
T-BP4. W. Hayes sidewalk: The developer shall fill in the sidewalk gap along the W. Hayes frontage of
Tax Lot 052W12C 01600 (601 Evergreen Road). The sidewalk shall be minimum six (6) feet wide. The
applicant shall to the extent feasible meander the sidewalk as needed to save existing trees in or
partially within existing ROW, including to align sidewalk curb-tight. Within the parameters of this
condition, the sidewalk placement shall otherwise reasonably conform to WDO Figure 3.01G,
particularly regarding placement relative to centerline and establishing a planter strip with street trees
where they can fit. This is due by Phase 2, building permit issuance.
T-BP5. Harvard curb ramp(s): At the T-intersection with W. Hayes, the developer shall install at least
one ADA-compliant curb ramp at the west end of either the north or south leg crosswalk, pave new
sidewalk minimum six (6) ft wide that connects to existing sidewalk, and stripe the crosswalk. The
applicant shall to the extent feasible save existing trees in or partially within existing ROW, including by
using returned curbs instead of flares along ramps. This is due by Phase 2, building permit issuance.
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Exhibit T-BP North: This exhibit illustrates locations and represents improvements related to Conditions T-BP1 through 5.
Sidewalk is in blue dashes and ADA ramps are in yellow trapezoids.
T-BP6. Evergreen sidewalk south: The developer shall fill in the sidewalk gap along the Evergreen
frontage of Tax Lot 052W12C 02400 (0 Evergreen Road NE). The minimum width and placement shall
conform to WDO Figure 3.01C, and within the planter strip the applicant shall plant at least two (2)
street trees with root barriers, one each near Harvard and the driveway and to allow future adjacent site
development to add trees to conform fully with the quantity required by WDO 3.06.03A (1 per 50 ft
typical). This is due by Phase 2, building permit issuance.
T-BP7. Evergreen / Walmart driveway curb ramp: The developer shall fill in the sidewalk gap along the
Evergreen frontage of the pole of the flag lot that is Tax Lot 052W12C 01900 (3002 Stacy Allison Way)
and install an ADA-compliant curb ramp at the west side of the driveway. This is due by Phase 2,
building permit issuance.
T-BP8. Evergreen curb ramp(s): At the T-intersection with Oxford, the developer shall install at least
one ADA-compliant curb ramp at the west end of either the north or south leg crosswalk, pave new
sidewalk minimum six (6) ft wide that connects to existing sidewalk, and stripe the crosswalk. The
applicant shall to the extent feasible save existing street trees, including by using returned curbs instead
of flares along ramps. This is due by Phase 1, building permit issuance.
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Exhibit T-BP South: This exhibit illustrates locations and represents improvements related to Conditions T-BP6 through 8.
Sidewalk is in blue dashes and ADA ramps are in yellow trapezoids.
T-BP9. Evergreen Path: \[previously struck by the Planning Commission\]
T-BP10. BP fee in-lieu option: In order for the City to construct any of the bicycle/pedestrian
improvements that Condition T-A1b (Evergreen sidewalk west) and the T-BP conditions above describe,
a developer may pay a fee in-lieu as follows:
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a.Percentage: Equal to at least one hundred and twenty (120%) of a lice
estimate.
b.Estimate: An estimate shall have construction cost item estimates based on the improvements
and approve a construction estimate prior to acceptance of a fee in-lieu payment.
c.Bond/bonding/performance guarantee: If the applicant were to bond, then the above condition
subparts a. and b. about percentage and estimate shall apply also to a bond.
T-T. Bus transit fee: The developer shall pay a mitigation fee that is a total of a fixed base amount plus a
rate per dwelling of $208.28. The fixed base amount shall be $12,510.20 for Phase 1 and $46,750 for
Phase 2. (This condition relates to TSP projects T1, 2, 4, 16, 18 &, TSP Fig. F5, and TPU projects 9, 11, 12,
& 20.)
Variance 2019-04
V1-1. Driveway (WDO Table 3.04A):
a.The minimum driveway widths shall be per the table below (instead of 24 feet typical):
Minimum Driveway Width (feet)
One-way Travel Two-way Travel
Single Lane Paired Lanes Paired Lanes With Left Turn
Lane
10 9 per lane; 18 total 20 30 total
b.The maximum driveway widths shall be per the table below (instead of 38 feet typical):
Maximum Driveway Width (feet)
One-way Travel Two-way Travel
Single Lane Paired Lanes Paired Lanes With Left Turn
Lane
11 10 per lane; 20 total 22* 31 total
*Except 26 ft where required by Oregon Fire Code (OFC) Appendix D
c.The condition applies within ROW, and may apply outside ROW along driveway throat length, so
as not to interfere with the drive aisle width provisions of WDO Table 3.05C.
V2-4. Drive aisle (WDO Table 3.05C):
a.The minimum drive aisle widths shall be per the table below (instead of 24 feet typical):
Parking Context Minimum Drive Aisle Width (feet)
One-way Travel Two-way Travel
Single Lane Paired Lanes
Standard or ADA-18 10 per lane; 20 total 20
compliant stalls
Compact stalls 16 9 per lane; 18 total 20
No adjacent stalls 10 9 per lane; 18 total 20
b.The condition applies up to newly dedicated ROW so as not to interfere with the driveway
minimum width provisions of WDO Table 3.04A.
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V3-5. Curb dimensions, parking area (WDO 3.06.02I): Curb or curbing that delineates on-site walkways
and landscaped, parking, and vehicular circulation areas shall have a minimum height and width each of
four (4) inches (instead of 6 inches typical).
a.Speed table: The applicant shall construct a speed table along the walkway crossing nearest and
between the Phase 2 clubhouse, play area, and Building R. (See Condition G3 for specifications.)
b.Wheel stops: Wherever required or proposed, wheel stops shall be four (4) inches high maximum.
V4-6. Architectural Wall (WDO Table 3.06D & 3.06.06):
a.The property lines subject to the Architectural Wall provisions of Table 3.06D and 3.06.06 are
exempt from those provisions.
b.Landscaping:
(a)Along the Phase 2 southeast and east lot lines, the applicant shall landscaped a buffer of
(b)The landscaping shall include evergreen shrubbery planted at the large category minimum
size per WDO Table 3.06B.
(c)The applicant shall include within fifteen (15) ft of the lot lines at least twenty-one (21)
trees. The applicant shall add at least four (4) trees of large category per WDO Table 3.06B
for a total of 25 trees. The four additional trees shall be in the lawns near Buildings Q & R,
within sixty (60) ft of the lot lines, and with one (1) near Building Q and three (3) near
Building R. The proposed site perimeter tree closest to the east/northeast corner of
Building R shall be changed to a coniferous or evergreen species.
(d)Transformer box: Any on-site at-grade electrical transformer box shall be screened with
evergreen shrubbery on all sides except the panel door side.
c.Fence, cedar: Along the two segments of the Phase 2 southeast and east lot lines within six (6)
ft of parking stalls that face the lot lines, the applicant shall install a treated cedar wood fence at
least five (5) ft, ten (10) inches high and with boards arranged for opacity, except that the
highest foot may be mostly opaque lattice pattern. Fence height shall not supersede applicable
height limits per WDO 2.06.02.
d.Lighting: If proposed, exterior light fixtures shall be full cut-off or fully shielded and limited in
height as follows:
(a)Full cut-off: Exterior lighting fixtures shall be full cut-off or fully shielded models.
(b)Heights: As measured to the underside of the fixture:
a.Wall: Exterior wall-mounted fixtures shall be no higher than ten (10) feet above walkway
finished grade. (This height limit is not applicable to emergency egress lighting and
permanent wall signs allowed through WDO 3.10 were they to have interior illumination.)
b.Parking pole: Exterior pole-mounted fixtures within four (4) feet of or in parking, loading,
and vehicular circulation areas shall be no higher than fourteen-and-a-half (14½) feet
above vehicular finished grade.
c.Other pole: Remaining exterior pole-mounted fixtures, if any, shall be no higher than
twelve (12) feet above grade.
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V5-3-1. Compact parking (WDO 3.05.03C):
a.Percentage: The compact parking maximum as a percentage of the required minimum amount
of parking shall be sixtytwenty-five percent (6025%; instead of 20% typical) and hundred
percent (100%) of any amount in excess of the minimum required. For each phase, at least
twenty percent (20%) of the minimum amount of stalls shall be compact
b.
high minimum.
c.Wheel stops: Where used, wheel stops shall be four (4) inches high maximum.
V6-3-2. Off-street parking provisions:
a.Bicycle parking amount and distribution: For each phase unless otherwise specified, the
applicant shall provide a minimum number of bicycle parking stalls as follows:
(1)At least one (1) per dwelling in each dwelling in the outdoor closet of the balcony or patio in
which the applicant shall install a wall-mounted folding or retractable hook designed for the
hanging of a bicycle;
(2)At least one (1) stall at the base of each building stairwell, with each of these locations
having a bicycle parking sign with minimum face dimensions of (1) foot wide by one-and-a-
half (1½) feet high;
(3)Phase 1: Guest: Excluding outdoor closet and stairwell stalls, a set of at least two (2) stalls
within five to fifteen (5-15) ft of Hooper ROW and near or along the access way;
(4)Phase 2: Guest: Excluding outdoor closet and stairwell stalls, at least two sets of at least
two (2) stalls each, one northwesterly within five to fifteen (5-15) ft of Hooper and one
southeasterly within ninety (90) ft of Hooper ROW.
(5)Phase 1: Common: Excluding outdoor closet, stairwell, and guest stalls, there shall be at
least twenty (20) outdoor stalls. Of these at least four (4) shall be among the clubhouse /
leasing office, clubhouse plaza, or barbeque (BBQ) area, and sixteen (16) shall be
covered/sheltered.
(6)Phase 2: Common: Excluding outdoor closet, stairwell, and guest stalls, there shall be at
least fifty-six (56) outdoor stalls. Of these at least four (4) shall among the clubhouse /
leasing office, clubhouse plaza, BBQ area and play area, two (2) shall be northeast of
Building F and within ninety (90) ft of Allison ROW, two (2) shall be northeast of Building K
and within ninety (90) ft of Allison ROW, and thirty-two (32) shall be covered/sheltered.
(7)At least two (2) stalls outside and near each apartment building spaced to conform to the
50-foot distance provision of WDO 3.05.03E as applied through a Design Review (D)
condition.
(8)In no case shall the total number of bicycle parking stalls equal fewer than 1.2 per dwelling,
and in no case shall the minimum coverage/sheltering from precipitation of bicycle parking
be for fewer than forty-eight (48) stalls excluding outdoor closet and stairwell stalls.
b.Bicycle standards: Stalls shall conform to City of Portland Title 33, Chapter 33.266.220C
(amended 5/24/2018), except that the applicant may ignore subsections C6, C7, & C5c, and that
C4b does not apply to the outdoor storage closets for which the minimum stall depth from wall
instead shall be four (4) feet minimum. Vertical clearance instead shall be eight (8) feet or,
where a stall is under stairs, six (6) feet.
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c.Access ways:
(1)Phase 1: At least one access way shall remain as proposed that extends from Hooper
sidewalk at least one-hundred and fifty (150) ft to the plaza between the clubhouse and the
barbeque (BBQ) shelter.
(2)Phase 2: At least one access way shall remain as proposed that extends from Hooper
sidewalk at least five-hundred and fifty (550) ft from to the clubhouse southwest doors /
play area.
d.Walkways:
(1)Courtyards: The applicant shall revise Sheets SP-1 through 3 (Exhibits 10-12; civils) and each
Note 6 to illustrate and note the proposed decorative pavement of the segments of
courtyard walkways that the landscape plans (Exhibits 38-42) illustrate.
(2)Drive aisle crossings: The shall revise Sheets SP-1 through 3 (Exhibits 10-12; civils) and install
in the field at least six (6) walkway drive aisle crossings not only as striping but also as
extensions of poured concrete, listed north to south clockwise:
(a)Phase 1, north of Building A
(b)Phase 2, north of Building R
(c)Phase 2, north of Building P
(d)Phase 2, south of Building L
(e)Phase 2, east of Building M, and
(f)Phase 2, SW of Building K.
(3)Parking courts: The applicant shall pour concrete or lay concrete pavers to form a
pedestrian shortcut up and over the curbed landscaped strip island within each parking
court, in order to pass amid groundcover and shrubbery. It shall be roughly aligned at the
boundaries of parking stalls, with the side of a landscaped peninsula, and with the nearest
walkways that orient northeast-southwest and are between buildings. The minimum width
shall be twenty-one (21) inches.
(4)Building stormwater scuppers shall not dump onto walkways.
e.EV: As proposed and premised on OAR 918-020-
minimum of either 36 stalls or three and half percent (3.5%) of minimum required parking
whichever is greater shall be a designated EV stall or stalls and with a charging station or
stations, which the landowner may limit to tenant use. Of 36 or more stalls, Phase 1 shall have
at least twelve (12) and Phase 2 at least twenty-four (24).
(1)
similar and also stencil an EV image or logo. Reflect this on revised site plans.
(2)Signage: Post at each stall a wall-mounted or pole-
size of one (1) foot wide by one-and-a-half (1½) feet high. The top of a posted sign is to be
between five-and-a-half (5½) and six-and-a-half (6½) feet above vehicular grade. Reflect this
on revised site plans including with an elevation detail.
f.Balconies/patios: WDO 3.07.05B.1 (area/size and narrowest dimension) shall apply as minimum
standards, except that for whatever balconies and patios among those proposed exceed these
dimensions, their larger areas/sizes and wider narrowest dimensions shall be the minimum
standards for those.
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g.Common open space facilities:
(1)Benches: Install at courtyards, clubhouse plazas, or common lawns at least two (2) Phase 1
benches and at least eight (8) Phase 2 benches. Each bench shall at least six (6) feet wide
and with a back. In Phase 2 were 7 benches are proposed, add the eighth bench at the lawn
southeast of Building M. Relocate two Phase 2 benches:
1.From NW of Building G to the lawn NE of Building R and roughly in line with the walkway
drive aisle crossing; and
2.From NE of Building K to the lawn SE of Building R.
(2)Clubhouse plazas and BBQ grill shelters: As proposed, build at least one (1) each of a
clubhouse plaza and a barbeque (BBQ) grill shelter in each of Phase 1 and 2.
(3)Administrative minor adjustment by the Director to the above common open space facilities
is permissible.
h.Windows:
(1)Proportion: All windows shall be square or vertically proportioned, except that horizontally
proportioned windows are allowed if they have grilles or muntins dividing lights or panes so
as to be vertically proportioned.
(2)Per room: Within apartments, every habitable room abutting a building exterior wall shall
have at least one window.
(3)Insect screens: All operable windows shall have insect screens.
V7-3-3. Public access easement:
a.Dedication: Regarding the Phase 1 proposed public park in the form of a plaza along Hooper
and its related improvements, the applicant as part of re-plat recordation shall dedicate to the
City a public access and utility easement encompassing the plaza and some extra perimeter
area, specifically with a boundary that follows the centerlines of the walkways to the northwest
and northeast that border the plaza and, to the southeast, along the back side of drive aisle
curb. The easement shall grant public access during the same hours and subject to the rules and
regulations for City parks per Ordinance Nos. 2060 (1991) and 2377 (2004) or as the City may
amend ordinances.
b.Boundary marking: The developer shall mark the public boundary through one of the following
two options:
(1)Caps: Metal caps that either are or mimic land survey markers, are minimum diameter of
three and a quarter (3¼) inches, and at a minimum number equal to and with average
placement of 1 cap per 10 lineal ft of walkway. There shall be two additional caps along the
(2)Plaques: Metal plaques embedded within walkway concrete, aligned with the boundary,
read by persons looking away from the plaza. The minimum size shall result from a
minimum lettering height of two (2) inches, and the minimum number shall be equal to and
with average placement on center of 1 plaque per 20 lineal ft of walkway. There shall be
two additional plaques along the boundary where it follows the drive aisle curb.
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c.Sign:
Public 7AM - 10PM April - September, & 7AM - 7 PM October - mum lettering
height of two (2) inches. The developer shall place it near the plaza entry that is along the
sidewalk and within five (5) to nine (9) ft of ROW.
(1)If a monument sign type, the sign face area shall be twelve (12) sq ft minimum, with a flat
top at least three (3) ft above grade and in the form of a concrete cap at least three (3)
inches wide.
(2)If a pole sign type, the lettering shall be green, and the sign face shall be no lower than three
and a half (3½) ft above grade and no higher than five (5) ft and of minimum dimensions of
two (2) ft by one-and-a-half {1½) ft.
d.Due date: These shall be due by Phase 1, building permit issuance.
V8-3-4. Parking management:
a.Survey: The applicant or any successor and assigns such as a property manager shall collect data
about off-street parking usage or allocation and provide it to the City to the attention of the
Director.
(1)Reporting period: Collect data by each half of a year January through June and July
through December. Submit each biannual report by the last City business day in the last
month of the next quarter of a year and that is not a federal holiday. (For example, a
report for January through June 2022 would be due by September 30, 2022.)
(2)First report: The first report shall cover whatever irregular length of time would pass
between phase occupancy and the end of the next half of a year ending June or
December.
(3)Attributes: Collect and report on:
i.Geography: Report numbers divided between Phases 1 & 2 (as defined in Condition
G3).
ii.The number of off-street spaces/stalls that are available and how many, if any, are
closed due to occasional events such as parking area resurfacing, temporary
outdoor events, outdoor storage, or the stationing of large trucks or truck trailers.
iii.Track stalls and usage by type: regular standard size, regular compact,
accessible/ADA/handicap, EV, and any other type (such as those designated for
visitors, leasing office employees, staff golf cart, or mail carrier).
iv.Collection: The property manager shall do field counts as per condition subpart (4
lease agreements, i.e. what tenant households are allocated a stall or stalls and for
what periods, assumed that stalls are occupied as lease agreements describe.
v.Usage: Report how many stalls are used and allocated. For vacant apartments in
the context of assumed counts, record stalls associated with vacant apartments as
unallocated.
vi.If and when a parking area resurfacing project were to happen, provide written
notice to the Director of approximate start date and duration, location, and number
of stalls involved.
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vii.Format: Use tables to report by phase absolute numbers and percentages of stall
type occupancies. Include phase and sitewide totals.
(4)Field count: The property manager shall do at least two field counts per reporting period,
meaning to travel the project and count in real time occupied and vacant stall types such
as by marking a project site plan. Each count shall be on Tuesday, Wednesday, or
Thursday that is neither a federal holiday nor within a week (7 days) of a federal holiday.
One count shall be daytime starting no earlier than 9:30 a.m. and concluding no later than
4:30 p.m., and one count shall be nighttime starting no earlier than 10:00 p.m. and
concluding no later than 12:30 a.m. Report when on a given date the counts were done
and how long it took, for example, from 11:30 a.m. to noon.
(5)Bicycle parking: For outdoor bicycle parking stalls, including those within stairwells but
excluding outdoor closets, the property manager shall also do field counts the same way
as per condition subpart (4) above and as part of the larger report confirm the total
number of existing outdoor bicycle stalls.
(6)Parking demand management: The reporting that a parking demand management
condition requires, if it exists, may be incorporated with the parking usage data collection
report.
(7)Context: In each report, cite the project name, phases, street addresses, master/parent
case file number DR 2019-05, and the condition identification(s), state what period the
report covers, state the number of vacant apartments and when and how the number was
determined given fluctuation over six months, and provide an employee name and direct
contact information for questions City staff might have.
(8)Intent: It is not the express intent of this condition to police property management or
punish tenants or management for perceived misuse of parking, but instead without
judgment to collect data on how parking is actually used in a conventional large
apartment complex.
(9)Change of ownership: If and when property ownership were to change, the property
manager shall pass along record of the conditions of approval to the contract purchaser
and successive property manager.
(10)Expiration: This parking usage/allocation data collection condition becomes optional as of
July 1, 2031. If reporting were to cease, the last report for the January to June 2031
period would be due September 30, 2031.
V9-2. Parking ratio minimum:
a.The minimum ratio shall be by unit type as follows for each:
(1)Studio dwelling, 1.0 stall;
(2)One-bedroom, 1.0 stall;
(3)Two-bedroom, 1.77 stalls; and
(4)Three or more bedroom unit type, 4.14;
which would result in an average of 1.771.9 stalls per dwelling based on the unit type mix
across both phases.
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b.
c.Trial period: Until July 1, 2025, there shall be a trial period in which the Director may receive
evidence of a chronic parking overflow problem and choose to investigate, review, and act upon
it, including by obtaining the latest documentation of any parking permit system were the
property manager to have instituted and be managing such.
(1)This condition authorizes the Director to require that the applicant or any successors and
assigns apply for and receive approval of a solution to the satisfaction of the Director. The
review shall default to a Type II process, but the Director may instead elevation the review
to Type III to obtain Planning Commission review and decision.
(2)The Director may condition that the applicant or any successors and assigns fulfill the offer
made through the revised narrative (submitted March 25, 2020, p. 12; Attachment 106) to
contact a car share company and allow a parking space or two to be allocated such a
company car or cars for tenant use. (This condition does not supersede WDO 4.02.07
Modification of Conditions.)
d.EV: The property manager:
(1)Shall keep EV stalls available for EVs and plug-in hybrid vehicles and keep conventional
gasoline vehicles from parking in them. Priority users shall be tenants and property
management company employees; guests/visitors would be secondary.
(2)May charge EV stall users for the costs of charging an EV through a charging station, but
shall not (a) charge tenants for either simply parking an EV or plug-in hybrid vehicle in an
EV stall or for leaving such a vehicle parked without actively charging, and (b) shall charge
to recoup costs to the property manager and not generate profit for the property
manager. (This does not preclude the property manager contracting with a for-profit
company to manage EV charging stations).
(3)Regardless of whether tenant demand is less than, meets, or exceeds the sitewide supply
of EV stalls, may whether or not the manager expands supply institute a permit
system, including a waiting list and assigning a tenant EV to a particular delineated group
or zone of stalls, and as part of doing so shall not charge any fee that discriminates among
particular EV parking stalls based on the perception of some stalls being more convenient
or otherwise desirable than others. the combined supplies of
Phases 1 and 2, regardless of any division of property management between the two
phases.
Expiration: Per Woodburn Development Ordinance (WDO) 4.02.04B., a final decision expires within
three years of the date of the final decision unless:
1.A building permit to exercise the right granted by the decision has been issued;
2.The activity approved in the decision has commenced; or
3.A time extension, Section 4.02.05, has been approved.
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Notes to the Applicant: The following are not planning / land use / zoning conditions of approval, but
are notes for the applicant to be aware of and follow:
1.Records: Staff recommends that the applicant retain a copy of the subject approval.
2.Fences, fencing, & free-standing walls: The approval excludes any fences, fencing, & free-standing
walls, which are subject to WDO 2.06 and the permit process of 5.01.03.
3.Signage: The approval excludes any private signage, which is subject to WDO 3.10 and the permit
process of 5.01.10.
4.ion on any application shall expire within
three years of the date of the final decision unless: 1. a building permit to exercise the right granted
by the decision has been issued; 2. the activity approved in the decision has commenced; or 3. a time
extension, Section 4.02.05, has been approved. Because unrecorded re-plats lingering indefinitely
have burdened staff, a condition sets sooner time limits for subsection 2. to begin and finish
recordation.
5.Mylar signature: The Community Development Director is the authority that signs plat Mylars and
not any of the mayor, City Administrator, Public Works Director, or City Engineer. Only one City
signature title block is necessary.
6.PLA Plat Tracker: Marion County maintains a plat tracking tool at
<http://apps.co.marion.or.us/plattracker/>. Use it to check on the status of a recordation request
to the County. City staff does not track County plat recordation.
7.Technical standards:
a.Context: A reader shall not construe a land use condition of approval that reiterates a City
technical standard, such as a PW standard, to exclude remaining standards or to assert that
conditions of approval should have reiterated every standard the City has in order for those
standards to be met.
b.Utilities: A condition involving altered or additional sidewalk or other frontage/street
improvement that would in the field result in displacement or relocation of any of utility boxes,
cabinets, vaults, or vault covers does not exempt the developer from having to move or pay to
move any of these as directed by the City Engineer and with guidance from franchise utilities.
8.Other Agencies: The applicant, not the City, is responsible for obtaining permits from any county,
state and/or federal agencies, which may require approval or permit, and must obtain all applicable
City and County permits for work prior to the start of work and that the work meets the satisfaction
of the permit-issuing jurisdiction. The Oregon Department of Transportation (ODOT) might require
highway access, storm drainage, and other right-of-way (ROW) permits. All work within the public
ROW or easements within City jurisdiction must conform to plans approved by the Public Works
Department and must comply with a Public Works Right-of-Way permit issued by said department.
Marion County plumbing permits must be issued for all waterline, sanitary sewer, and storm sewer
work installed beyond the Public Right-of-Way, on private property.
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9.Inspection: The applicant shall construct, install, or plant all improvements, including landscaping,
prior to City staff verification. Contact Planning Division staff at least three (3) City business days prior
to a desired date of planning and zoning inspection of site improvements. This is required and
separate from and in addition to the usual building code and fire and life safety inspections. Note that
Planning staff are not primarily inspectors, do not have the nearly immediate availability of building
inspectors, and are
10.Stormwater management: The storm sewer system and any required on-site detention for the
development must comply with the City Storm Water Management Plan, Public Works storm water
practices and the Storm Drainage Master Plan.
11.Public Works Review: Staff performs final review of the civil plans during the building permit stage.
Public infrastructure must be constructed in accordance with plans approved by the City, as well as
current Public Works construction specifications, Standard Drawings, Standard Details, and general
conditions of a permit type issued by the Public Works Department.
12.ROW:
a.Dedication: The Public Works Department Engineering Division has document templates for
ROW and easement dedications that applicants are to use.
ROW and public utility easement (PUE) dedications are due prior to building permit issuance
per Public Works policy.
b.Work: All work within the public ROWs or easements within City jurisdiction must require plan
approval and permit issuance from the Public Works Department. All public improvements
by the
13.Franchises: The applicant provides for the installation of all franchised utilities in any required
easements.
14.Water: All water mains and appurtenances must comply with Public Works, Building Division, and
Woodburn Fire District requirements. Existing water services lines that are not going to be use with
this new development must be abandoned at the main line. The City performs required abandonment
of existing water facilities at the water main with payment by the property owner. All taps to existing
The applicant shall install the proper type of backflow preventer for all domestic, lawn irrigation and
fire sprinkler services. The backflow devices and meters shall be located near the city water main
within an easement, unless approved otherwise by Public Works. Contact Byron Brooks, City of
Woodburn Water Superintendent, for proper type and installation requirements of the backflow
device at (503) 982-5380.
15.Grease Interceptor/Trap: If applicable, a grease trap would need to be installed on the sanitary
service, either as a central unit or in the communal kitchen/food preparation area. Contact Marion
County Plumbing Department for permit and installation requirements, (503) 588-5147.
16.Fire: Fire protection requirements must comply with Woodburn Fire District standards and
requirements, including how the District interprets and applies Oregon Fire Code (OFC). Place fire
hydrants within the public ROW or public utility easement and construct them in accordance with
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Public Works Department requirements, specifications, standards, and permit requirements. Fire
protection access, fire hydrant locations and fire protection issues must comply with current fire
codes and Woodburn Fire District standards. See City of Woodburn Standard Detail No. 5070-2 Fire
Vault. The fire vault must be placed within the public right-of-way or public utility easement.
17.SDCs: The developer pays System Development Charges prior to building permit issuance. Staff will
determine the water, sewer, storm and parks SDCs after the developer provides a complete Public
Works Commercial/Industrial Development information sheet.
Appeals: Per WDO 4.01.11E., the decision is final unless appealed pursuant to Oregon Revised Statutes
(ORS), state administrative rules, and WDO 4.02.01. The appeal to City Council due date is twelve (12)
days from the mailing date of this final decision notice per 4.02.01B.1. A valid appeal must meet the
requirements of 4.02.01.
A copy of the decision is available for inspection at no cost, and the City would provide a copy at
reasonable cost at the Community Development Department, City Hall, 270 Montgomery Street,
Woodburn, OR 97071. For questions or additional information, contact Vicki Spitznogle, Administrative
Assistant, at (503) 982-5246 or vicki.spitznogle@ci.woodburn.or.us.
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Attachments:
Planning Commission May 28, 2020 Staff Report Attachment 101. Tax Maps Marked (2 sheets)
101A. Town Center at Woodburn Subdivision Plat, Sheet 1 (2004)
102A. Public Works Comments May 21, 2020 (2 pages)
104. Transportation System Plan (TSP) Figure 7-1 (2005)
105. Site plans excerpted (submitted Mar. 25, 2020; 16 sheets)
105A. Site plans revised (submitted Sept. 1, 2020; 3 sheets; new attachment)
106. 12 (submitted Mar. 25, 2020)
107letter (submitted Sept. 1, 2020; 4 pages; new attachment)
Sincerely,
Colin Cortes, AICP, CNU-A
Senior Planner
As authorized by the City Council on October 12, 2020
________________________________ _______________________________
Eric Swenson, Mayor Date
CP/cmc
cc: Chris Kerr, Community Development Director
Dago Garcia, P.E., City Engineer
Ted Cuno, Building Official
Jason Space, GIS Technician
Robert Leeb, Principal in Charge, Leeb Architects (applicant)
Doug Hamilton, Leeb Architects (project manager)
Eugene Labunsky, West Coast Real Estate Holdings (landowner)
Testifiers (1):
Stephen D. Rippeteau (562 Prairie St, Woodburn, OR 97071-4496)
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Casey Knecht, P.E., Development Review Coordinator, Oregon Dept. of Transportation (ODOT) Region 2
Marion County Public Works Dept.
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130
131
132
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Agenda Item
October 12, 2020
To: Honorable Mayor and City Council through City Administrator
From:Chris Kerr,Community Development Director
Subject:Call-Up Briefing: Planning Commission Approval of a Variance for Eric
& Charmaine Cottrell at 1311 E. Lincoln Street (VAR 2020-04)
RECOMMENDATION:
Staff recommends noactionand briefs the Council on this item pursuant to
Woodburn Development Ordinance (WDO)Section 4.02.02.The Council may call
up this item for review if desired and, by majority vote, initiate a review of this
decision.
BACKGROUND:
The Woodburn Planning Commission held a public hearing via the GoToMeeting
virtual meeting platform on September 10, 2020 and approved by 4-1 vote the
application with the conditions recommended by staff. No parties testified in
opposition to the proposal.
The subject property, 1311 E. Lincoln Street, is within the Medium Density
Residential (RM) zoning district and developed with a single-family dwelling and
detached garage. The garage has an existing second floor living area, which the
applicant sought to convert into a legal accessory dwelling unit (ADU).
T
he second floor living area exceedsthe maximum square footage allowed for
an ADU(per WDO2.07.20E) therefore the applicant requested a Variancefrom
this ADU floor areastandard.
Agenda Item Review:City Administrator ___x___CityAttorney __x____
134
1311 E. Lincoln Street as seen from the street (Google Maps Street View, May 2019)
ADUfloorplan drawing
Page 2of 2
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