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Ordinance No. 18-24 CITY OF TIGARD, OREGON TIGARD CITY COUNCIL ORDINANCE NO. 18- AN ORDINANCE AMENDING TIGARD MUNICIPAL CODE 15.06 TO REPLACE TIGARD'S FRANCHISED UTILITY ORDINANCE WITH A UTILITY SERVICES IN PUBLIC RIGHTS-OF-WAY ORDINANCE WHEREAS, the City of Tigard has constitutional and charter authority to manage its rights of way and receive compensation for use of the rights of way consistent with applicable federal and state law;and WHEREAS,in the past, the City has granted individually-negotiated franchises to each utility using the City's rights of way which include the terms of use and compensation for such use;and WHEREAS, the City has determined that it can more effectively, efficiently, fairly, and uniformly manage the City's rights of way and provide consistent standards for utility use of the rights of way through licenses instead of franchises;and WHEREAS,the City Council finds the proposed code amendments are in the public interest. NOW,THEREFORE,THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: Tigard City Council amends Chapter 15.06 of the Tigard Municipal Code to replace Tigard's "Franchised Utility Ordinance"with the "Utility Services in Public Rights-of-Way Ordinance,"as shown on the attached Exhibit A. SECTION 2: This ordinance shall be effective 30 days after its passage by the council, signature by the mayor,and posting by the city recorder. PASSED: By (—t-"Pv-t--vum tr1.4.-4P vote of all council members present after being read by number and title only, this 4 day of rac.&M ,2018. 4<-Q P_--L L �st-- Kelly Burgoyne, Deputy City Recorder APPROVED: By Tigard City Council this 4/1' day of be-3r ,2018. Approved as to form: John L. ok,Mayor City Atto ey Date ORDINANCE No. 18- Page 1 Exhibit A TIGARD MUNICIPAL CODE Chapter 15.06 UTILITY SERVICES IN those rights-of-way held in trust by the city PUBLIC RIGHTS-OF-WAY consistent with applicable state and federal law; Sections: B. Assure that the city's current and ongoing costs of granting and regulating access to 15.06.010 Short Title and the use of the rights-of-way are fully 15.06.020 Purpose and Intent compensated by the persons seeking such access 15.06.030 Jurisdiction and causing such costs; 15.06.040 Regulatory Fees and Compensation Not a Tax C. Secure fair and reasonable 15.06.050 Definitions compensation to the city and its residents for 15.06.060 Registration permitting use of the rights-of-way by persons 15.06.070 Licenses who generate revenue by placing, owning, or 15.06.080 Construction and Restoration operating facilities therein; 15.06.090 Location of Facilities 15.06.100 Leased Capacity D. Assure that all utility companies, 15.06.110 Maintenance persons, and other entities owning or operating 15.06.120 Vacation facilities or providing services within the city 15.06.130 Rights-of-Way Fee register and comply with the ordinances, rules, 15.06.140 Audits and Records and regulations of the city; 15.06.150 Insurance and Indemnification 15.06.160 Compliance E. Assure that the City can continue to 15.06.170 Confidential/Proprietary fairly and responsibly protect the public health, Information safety and welfare of its residents, and assure the 15.06.180 Penalties structural integrity of its rights-of-way when a 15.06.190 Violations primary cause for the early and excessive 15.06.200 Severability and Preemption deterioration of the rights-of-way is their frequent 15.06.210 Application to Existing excavation by persons whose facilities are located Agreements therein; 15.06.010 Short Title F. Encourage the provision of advanced and competitive utility services on the widest This chapter will be known and referred to as possible basis to businesses and residents of the the Utility Service in Public Rights-of-Way city; and Ordinance. G. Comply with applicable provisions of 15.06.020 Purpose and Intent state and federal law. The purpose and intent of this chapter is to: 15.06.030 Jurisdiction A. Permit and manage reasonable access to A. The city has jurisdiction and exercises the rights-of-way of the city for utility purposes regulatory management over all rights-of-way and conserve the limited physical capacity of 15-06-1 Exhibit A TIGARD MUNICIPAL CODE within the city under authority of the city charter the property tax limitations of Article XI, Sections and state law. 11 and 1lb of the Oregon Constitution. These fees or taxes are not imposed on property or property B. The City has jurisdiction and exercises owners. regulatory management over each right-of-way whether the city has a fee, easement, or other legal C. The fees and costs provided for in this interest in the right-of-way, and whether the legal chapter are subject to applicable federal and state interest in the right-of-way was obtained by grant, laws. dedication, prescription, reservation, condemnation, annexation, foreclosure or other 15.06.050 Definitions means. For the purpose of this chapter the following C. The exercise of jurisdiction and terms, phrases, words and their derivations have regulatory management of a right-of-way by the the meaning given herein. When not inconsistent city is not official acceptance of the right-of-way, with the context, words not defined herein have and does not obligate the city to maintain or repair the meaning set forth in the Communications Act any part of the right-of-way. of 1934, as amended; the Cable Act; and the Telecommunications Act. If not defined in those D. The provisions of this chapter are statutes, the words will be given their common subject to and will be applied consistent with and ordinary meaning. When not inconsistent applicable state and federal laws, rules, and with the context, words used in the present tense regulations, and to the extent possible, will be include the future, words in the plural number interpreted to be consistent with such laws, rules, include the singular number and words in the and regulations. singular number include the plural number. The word "will" is mandatory and "may" is 15.06.040 Regulatory Fees and permissive. Compensation Not a Tax "Cable Act" means the Cable A. The fees and costs provided for in this Communications Policy Act of 1984, 47 U.S.C. chapter, and any compensation charged and paid Section 521, et seq., as now and hereafter for use of the rights-of-way provided for in this amended. chapter, are separate from, and in addition to, any and all other federal, state, local and city charges, "Cable service" is to be defined consistent including, but not limited to, any permit fee, or with Federal laws and means the one-way any other generally applicable fee, tax or charge transmission to subscribers of: (1) video on the business, occupation, property or income, programming, or (2) other programming service; as may be levied, imposed or due from a utility and subscriber interaction, if any, which is operator, its customers or subscribers, or on required for the selection or use of such video account of the lease, sale, delivery or transmission programming or other programming service. of utility services. "City" means the City of Tigard, an Oregon B. The city has determined that any fee or municipal corporation, and individuals authorized tax provided for by this chapter is not subject to to act on the city's behalf. 15-06-2 Exhibit A TIGARD MUNICIPAL CODE "City council" means the elected governing "Emergency"means a circumstance in which body of the City of Tigard,Oregon. immediate repair to damaged or malfunctioning facilities is necessary to restore lost service or "City facilities" means city or publicly prevent immediate harm to persons or property. owned structures or equipment located within the rights-of-way or public easement used for "Gross revenue" means any and all amounts, governmental purposes. of any kind,nature, or form, without deduction for expense, less net uncollectables, derived from the "City property" means and includes all real operation of utility facilities in the city and the property owned by the city, other than public provision of utility service in the city, subject to rights-of-way and utility easements, as those are all applicable limitations in state and federal law. defined herein; all property held in proprietary capacity by the city. "License"means the authorization granted by the city to a utility operator pursuant to this "City standards" means the applicable chapter. engineering and public improvement design standards in effect at the time of any work subject "Person" means and includes any individual, to this chapter. firm, sole proprietorship, corporation, company, partnership, co-partnership, joint-stock company, "Communications services" means any trust, limited liability company, association, local service provided for the purpose of transmission service district, governmental entity, or other of information including, but not limited to,voice, organization, including any natural person or any video or data, without regard to the transmission other legal entity. protocol employed, whether or not the transmission medium is owned by the provider "Private communications system" means a itself Communications services includes all forms system, including the construction, maintenance of telephone services and voice, video, data or or operation of the system, for the provision of a information transport, but does not include: (1) service or any portion of a service which is owned cable service; (2) open video system service, as or operated exclusively by a person for their use defined in 47 C.F.R. 76; (3) over-the-air radio or and not for sale or resale, including trade, barter television broadcasting to the public-at-large from or other exchange of value, directly or indirectly, facilities licensed by the Federal Communications to any person. Commission or any successor thereto; (4) public communications systems; and (5) direct-to-home "Public communications system" means any satellite service within the meaning of Section 602 system owned or operated by a government entity of the Telecommunications Act. or entities for their exclusive use for internal communications or communications with other "Construction" means any activity in the government entities, and includes services public right-of-way resulting in physical change provided by the State of Oregon pursuant to thereto, including excavation or placement of ORS 283.140. "Public communications system" structures. does not include any system used for sale or resale, including trade, barter or other exchange of "Days" means calendar days, unless value, of communications services or capacity on otherwise specified. the system, directly or indirectly,to any person. 15-06-3 Exhibit A TIGARD MUNICIPAL CODE "Public works director" means the public plants, antennas, equipment and other facilities, works director for the City of Tigard or any located within, under or above the rights-of-way, designee. any portion of which is used or designed to be used to deliver, transmit or otherwise provide "Public utility easement" means the space in, utility service. upon, above, along, across, over or under an easement for the construction, reconstruction, "Utility operator" or "operator" means any operation, maintenance, inspection and repair of person who owns, places, operates or maintains a utility facilities. "Public utility easement"does not utility facility within the city. include an easement (1) that has been privately acquired by a utility operator; (2) solely for the "Utility provider" or "provider" means any construction, reconstruction, operation, person who provides utility service to customers maintenance, inspection and repair of city within the city limits,whether or not any facilities facilities; or (3) where the proposed use by the in the right-of-way are owned by such provider. utility operator is inconsistent with the terms of another easement granted to the city that applies "Utility service" means the provision, by to the same location. means of utility facilities permanently located within, under or above the rights-of-way, whether "Rights-of-way" means and includes, but is or not such facilities are owned by the service not limited to, the space in, upon, above, along, provider, of electricity, natural gas, across, over or under the public streets, roads, communications services, cable services, water, highways, lanes, courts, ways, alleys, boulevards, sewer, or storm sewer, to or from customers bridges, trails, paths, sidewalks, bicycle lanes, within the corporate boundaries of the city, or the public utility easements and all other public ways transmission of any of these services through the or areas, including the subsurface under and air city whether or not customers within the city are space over these areas, but does not include parks, served by those transmissions. parkland or other city property not generally open to the public for travel. This definition applies "Work" means the construction, demolition, only to the extent of the city's right, title, interest installation, replacement, repair, maintenance or and authority to grant a license to occupy and use relocation of any utility facility, including but not such areas for utility facilities. limited to any excavation and restoration required in association with such construction, demolition, "State"means the State of Oregon. installation, replacement, repair, maintenance or relocation. "Telecommunications Act" means the Communications Act of 1934, as amended by 15.06.060 Registration subsequent enactments including the Telecommunication Act of 1996 (47 U.S.C., 151 Every person who desires to provide utility et seq.)and as hereafter amended. services to customers within the city must register with the City prior to providing any utility "Utility facility" or "facility" means any services to any person in the city or using any physical component of a system or network, facilities, in compliance with Tigard Municipal including but not limited to the poles, pipes, Code 5.04. mains, conduits, ducts, cables, wires, transmitters, 15-06-4 Exhibit A TIGARD MUNICIPAL CODE 15.06.070 Licenses D. Determination by City. The city will issue, within a reasonable period of time, a written A. License Required. determination granting or denying the license in whole or in part. If the license is denied, the 1. Except those utility operators and written determination will include the reasons for providers with a valid franchise agreement from denial. The license will be evaluated based upon the city, every person must obtain a license from the provisions of this chapter, the continuing the city prior to conducting any work in or using capacity of the rights-of-way to accommodate the the rights-of-way. applicant's proposed utility facilities and the applicable federal, state and local laws, rules, 2. Every person that owns or controls regulations and policies. utility facilities in the rights-of-way as of the effective date of this chapter must apply for a E. Franchise Agreements. If the public license from the city within 45 days of the later of: interest warrants, the city and utility operator or (a) the effective date of this chapter, or (b) the provider may enter into a written franchise expiration of a valid franchise from the city, agreement that includes terms that clarify, unless a new franchise is granted by the city enhance, expand, waive or vary the provisions of pursuant to subsection E of this section. this chapter, consistent with applicable state and federal law. The franchise may conflict with the B. License Application. The license terms of this chapter with the review and approval application will be on a form provided by the city, of the city council. The franchise will be subject and must be accompanied by any additional to the provisions of this chapter to the extent such documents required by the application to identify provisions are not in conflict with any such the applicant, its legal status, including its franchise. In the event of a conflict between the authorization to do business in Oregon, a express'provisions of a franchise and this chapter, description of the type of utility service provided the franchise will control. or to be provided by the applicant, the facilities and ownership of facilities over which the utility F. Rights Granted. service will be provided, and other information reasonably necessary to determine the applicant's 1. The license granted hereunder ability to comply with the terms of this chapter. If authorizes and permits the licensee, subject to the the applicant is proposing to attach to facilities provisions of the city code and other applicable other than city-owned infrastructure, the applicant provisions of state or federal law, to construct, must include an authorization from the facility place, maintain and operate utility facilities in the owner. In the event the information submitted on rights-of-way for the term of the license for the the application changes after the issuance of a provision of utility service(s) authorized in the license, the licensee must notify the city of such license. In the event the licensee offers different changes within 30 days of the change. service(s)than those authorized in the license, the licensee will inform the city of such changes no C. License Application Fee. The longer than 30 days after the change. application must be accompanied by a nonrefundable application fee or deposit set by 2. Any license granted pursuant to resolution of the city council. this chapter does not convey equitable or legal 15-06-5 Exhibit A TIGARD MUNICIPAL CODE title in the rights-of-way, and may not be assigned I. Reservation of City Rights. Nothing in or transferred except as permitted in subsection K the license prevents the city from grading, paving, of this section. repairing or altering any rights-of-way, constructing, laying down, repairing, relocating or 3. Neither the issuance of the license removing city facilities or establishing any other nor any provisions contained therein constitutes a public work, utility or improvement of any kind, waiver or bar to the exercise of any governmental including repairs, replacement or removal of any right or power, including without limitation the city facilities. If any of licensee's utility facilities police power or regulatory power of the city, as it interfere with the construction, repair, may exist at the time the license is issued or replacement, alteration or removal of any rights- thereafter obtained. of-way, public work, city utility, city improvement or city facility, except those G. Term. Subject to the termination providing utility services in competition with a provisions in subsection M of this section, the licensee, licensee's facilities will be removed or license granted pursuant to this chapter will be relocated as provided in TMC 15.06.090, in a effective as of the date it is issued by the city or manner acceptable to the city and consistent with the date services began, whichever comes first, industry standard engineering and safety codes. and will have a term of five (5) calendar years beginning: (1)January 1St of the year in which the J. Multiple Services. license took effect for licenses that become effective between January 1" and June 30th; or(2) 1. A utility provider that provides or January 1St of the year after the license took effect transmits or allows the provision or transmission for licenses that become effective between July 1St of utility services and other services over its and December 31St. facilities is subject to the license and right-of-way fee requirements of this chapter for the portion of H. License Nonexclusive. No license the facilities and extent of utility services granted pursuant to this section confers any delivered over those facilities. Nothing in this exclusive right, privilege, license or franchise to subsection J.1. requires a utility operator to pay occupy or use the rights-of-way for delivery of the license, registration or right-of-way fee utility services or any other purpose. The city requirements owed to the city by a third party expressly reserves the right to grant licenses, using the utility operator's facilities. franchises or other rights to other persons, as well as the city's right to use the rights-of-way, for 2. A utility provider that provides or similar or different purposes. The license is transmits more than one utility service to subject to all recorded deeds, easements, customers in the city is not required to obtain a dedications, conditions, covenants, restrictions, separate license or franchise for each utility encumbrances and claims of title of record that service; provided, that it gives notice to the city of may affect the rights-of-way. Nothing in the each utility service provided or transmitted and license grants, conveys, creates, or vests in pays the applicable rights-of-way fee for each licensee a real property interest in land, including utility service. any fee, leasehold interest or easement. K. Transfer or Assignment. To the extent allowed by applicable state and federal laws, the 15-06-6 Exhibit A TIGARD MUNICIPAL CODE licensee must obtain the written consent of the M. Termination. city prior to the transfer or assignment of the license; such consent will not be unreasonably 1. Revocation or Termination of a withheld. The license may not be transferred or License. The city council may terminate or revoke assigned unless the proposed transferee or the license granted pursuant to this chapter for any assignee is authorized under all applicable laws to of the following reasons: own or operate the utility facilities or provide the utility service authorized under the license and the a.Violation of any of the transfer or assignment is approved by all agencies provisions of this chapter; or organizations required or authorized under federal and state laws to approve such transfer or b. Violation of any provision of the assignment. If a license is transferred or assigned, license; the transferee or assignee becomes responsible for fulfilling all the obligations under the license. A c. Misrepresentation in a license transfer or assignment of a license does not extend application; the term of the license. d. Failure to pay taxes, L. Renewal. At least 30, but no more than compensation, fees or costs due the city after final 120, days prior to the expiration of a license determination by the city of the taxes, granted pursuant to this section, a licensee seeking compensation, fees or costs; renewal of its license must submit a license application to the city, including all information e. Failure to restore the rights-of- required in subsection B of this section and the way after construction as required by this chapter application fee required in subsection C of this or other applicable state and local laws, section. The city will review the application as ordinances, rules, and regulations; required by subsection D of this section and grant or deny the license within 90 days of submission f. Failure to comply with technical, of the application, or such shorter period of time safety and engineering standards related to work as may be required by law. If the city determines in the rights-of-way; or that the licensee is in violation of the terms of this chapter at the time it submits its application, the g.Failure to obtain or maintain any city may require that the licensee cure the and all licenses, permits, certifications and other violation or submit a detailed plan to cure the authorizations required by state or federal law for violation within a reasonable period of time, as the placement, maintenance or operation of the determined by the city, before the city will utility facilities. consider the application or grant the license. If the 2. Standards for Revocation or city requires the licensee to cure or submit a plan to cure a violation, the city will grant or deny the Termination. In determining whether termination, license application within 90 days of confirming revocation or some other sanction is appropriate, that the violation has been cured or of accepting the following factors will be considered: the licensee's plan to cure the violation. a. Whether the violation was intentional; 15-06-7 Exhibit A TIGARD MUNICIPAL CODE b. The egregiousness of the federal, state and local codes, rules, and violation; regulations in effect at the time of the work, including without limitation the National c. The harm that resulted; Electrical Code, the National Electrical Safety Code, Tigard Development Code 18.910, and the d. The licensee's history of city's Public Works Improvement Design compliance; and Standards. e. The licensee's cooperation in B. Construction Permits. No person may discovering, admitting and curing the violation. perform any work on utility facilities within the rights-of-way without first obtaining a right-of- 3. Notice and Cure. The city will give way permit pursuant to TMC 15.04. the utility operator written notice of any apparent Notwithstanding, for routine maintenance or violations before terminating a license. The notice repair that does not alter or disturb the right-of- will include a clear and concise statement of the way, such as replacement of a light fixture or nature and general facts of the violation or trimming of trees,the city may elect to not require noncompliance and provide a reasonable time (no a right-of-way permit provided the city receives less than 20 and no more than 40 days) for the notice of the planned maintenance repair, along utility operator to demonstrate that the utility with emergency contact information, as soon as operator has remained in compliance, that the reasonably practical. utility operator has cured or is in the process of curing any violation or noncompliance, or that it 15.06.090 Location of Facilities would be in the public interest to impose a penalty or sanction less than termination or revocation. If A. Location of Facilities. All utility the utility operator is in the process of curing a operators are required to make a good faith effort violation or noncompliance, the utility operator to both cooperate with and coordinate their must demonstrate that it acted promptly and construction schedules with those of the city and continues to actively work on compliance. If the other users of the rights-of-way. utility operator does not respond, the public works director may refer the matter to the city council, B. Unless otherwise agreed to in writing by which will provide a duly noticed public hearing the city, whenever any existing electric utilities, to determine whether the license will be cable facilities or communications facilities are terminated or revoked. located underground within a right-of-way of the city, a utility operator with permission to occupy 4. Termination by Licensee. If a the same right-of-way will locate its new facilities licensee ceases to use the city's rights of way, the underground at its own expense. This requirement licensee may terminate its license upon 30-days' does not apply to facilities used for transmission notice to the city. of electric energy at nominal voltages in excess of 35,000 volts or to antennas, streetlight poles, 15.06.080 Construction and Restoration pedestals, cabinets or other above-ground equipment of any utility operator. No such above- A. Construction Codes. Utility facilities ground equipment, or any aerial facilities other must be constructed, installed, operated and than electric energy transmission wires in excess maintained in accordance with all applicable 15-06-8 Exhibit A TIGARD MUNICIPAL CODE of 35,000 volts, may be constructed without the to such failure, including but not limited to costs written approval of the city, in addition to the related to project delays, and the city may cause, permit required by TMC 15.06.080.B. using qualified workers in accordance with applicable state and federal laws and regulations, C. Interference with the Rights-of-Way.No the utility facility to be removed, relocated, utility operator or other person may locate or changed, altered or undergrounded at the utility maintain its facilities so as to unreasonably operator's sole expense. Upon receipt of a detailed interfere with the use of the rights-of-way by the invoice from the city, the utility operator will city, by the general public or by other persons reimburse the city within 30 days for the costs the authorized to use or be present in or upon the city incurred. rights-of-way. All use of the rights-of-way must be consistent with city codes, ordinances, rules, E. Removal of Unauthorized Facilities. and regulations. 1. Unless otherwise agreed to in D. Relocation of Utility Facilities. writing by the city, within 30 days following written notice from the city or such other time 1. When requested to do so in agreed to in writing by the city, a utility operator writing by the city, a utility operator will, at no and any other person that owns, controls or cost to the city, temporarily or permanently maintains any abandoned or unauthorized utility remove, relocate, change or alter the position of facility within a right-of-way will, at its own any utility facility within a right-of-way, including expense, remove the facility and restore the right- relocation of aerial facilities underground, except of-way to city standards. those facilities not required to be located underground pursuant to TMC 15.06.090.B. 2. A utility facility, or any portion of the facility, is unauthorized under any 2. Nothing herein precludes the of the following circumstances: utility operator from requesting reimbursement or compensation from a third party, pursuant to a. The utility facility is applicable laws, regulations, tariffs or agreements. outside the scope of authority granted by the city However, the utility operator must timely comply under the license, franchise or other written with the requirements of this section regardless of agreement. This includes facilities that were never whether or not it has requested or received such licensed or franchised and facilities that were once reimbursement or compensation. licensed or franchised but for which the license or franchise has expired or been terminated. This 3. The City will coordinate the does not include any facility for which the city has schedule for relocation of utility facilities and provided written authorization for abandonment in based on such effort, provide written notice of the place. time by which the utility operator must remove, relocate, change, alter or underground its b. The facility has been facilities. If a utility operator fails to remove, abandoned and the city has not provided written relocate, change, alter or underground any utility authorization for abandonment in place. A facility facility as requested by the city and by the date is abandoned if it is not in use and is not planned reasonably established by the city, the utility for further use. A facility will be presumed operator will pay all costs incurred by the city due abandoned if it is not used for a period of one 15-06-9 Exhibit A TIGARD MUNICIPAL CODE year. A utility operator may attempt to overcome and any administrative costs incurred by the city this presumption by presenting plans for future in removing the facility and obtaining use of the facility to the city,which will determine reimbursement. Upon receipt of a detailed invoice application of the presumption in its sole from the city, the utility operator will reimburse discretion. the city for the costs the city incurred within 30 days. The obligation to remove survives c. The utility facility is termination of the license or franchise. improperly constructed or installed or is in a location not permitted by the construction permit, 3. The city is not be liable to any license,franchise or this chapter. utility operator for any damage to utility facilities, or for any consequential losses resulting directly d. The utility operator is in or indirectly therefrom, by the city or its violation of a material provision of this chapter contractor in removing, relocating or altering the and fails to cure such violation within 30 days of facilities pursuant to subsection D, E, or F of this the city sending written notice of such violation, section or undergrounding its facilities as required unless the city extends such time period in by subsection B of this section, or resulting from writing. the utility operator's failure to remove, relocate, alter or underground its facilities as required by F. Removal by City. those subsections, unless such damage arises directly from the city's negligence or willful I. The city retains the right and misconduct. privilege to cut or move any utility facilities located within the rights-of-way of the city, G. Engineering Designs and Plans. The without notice, as the city may determine to be utility operator will, at no cost to the city, provide necessary, appropriate or useful in response to a the city with two complete sets of as-built plans in public health or safety emergency. The city will a form acceptable to the city showing the location use qualified personnel or contractors consistent of all its utility facilities in the rights-of-way after with applicable state and federal safety laws and initial construction if the utility operator's regulations to the extent reasonably practicable engineered plans materially changed during without impeding the city's response to the construction. The utility operator will provide two emergency. The city will attempt to notify the updated complete sets of as-built plans upon utility operator of any cutting or moving of request of the city and at no cost to the city, but facilities prior to doing so. If such notice is not not more than once per year. Utility provider will practical,the city will notify the utility operator as also provide, at no cost to the city, a soon as reasonably practical after resolution of the comprehensive map showing the location of any emergency. facilities in the city. Such map will be provided in a format acceptable to the city with accompanying 2. If the utility operator fails to data sufficient for the city to determine the exact remove any facility when required to do so under location of facilities (GIS). The city may not this chapter, the city may remove the facility request such information more than once per using qualified personnel or contractors consistent calendar year. with applicable state and federal safety laws and regulations, and the utility operator will be responsible for paying the full cost of the removal 15-06-10 Exhibit A TIGARD MUNICIPAL CODE 15.06.100 Leased Capacity will make a reasonable effort to do provided that there is no expense to the city; or the utility A utility operator may lease capacity on or in operator obtains an easement for its facilities. If its facilities to others, provided that, upon request, the utility operator fails to remove its facilities the utility operator provides the city with the name within 90 days after a right-of-way is vacated, or and business address of any lessee. A utility as otherwise directed or agreed to in writing by operator is not required to provide such the city, the city may remove the facilities using information if disclosure is prohibited by qualified workers in accordance with state and applicable law or a valid agreement between the federal laws and regulations at the utility utility operator and the lessee, provided that the operator's sole expense.Upon receipt of a detailed utility operator requires that all lessees have invoice from the city, the utility operator will obtained proper authority, in the form of a permit, reimburse the city within 30 days for the costs the license, or franchise from the city before leasing city incurred. capacity on its system. 15.06.130 Rights-of-Way Fee 15.06.110 Maintenance A. Except as provided in subsection B of A. Every utility operator will install and this section, every person that owns utility maintain all facilities in a manner that complies facilities in the city and every person that uses with applicable federal, state and local laws, rules, utility facilities in the city to provide utility regulations and policies. The utility operator will, service, whether or not the person owns the utility at its own expense, repair and maintain facilities facilities used to provide the utility services, must from time to time as may be necessary to pay the rights-of-way fee for every utility service accomplish this purpose. provided using the rights-of-way in the amount determined by resolution of the city council. B. If, after written notice from the city of the need for repair or maintenance, a utility B. A utility operator whose only facilities operator fails to repair and maintain facilities as in the rights-of-way are facilities mounted on requested by the city and by the date reasonably structures within the rights-of-way, which established by the city, the city may perform such structures are owned by another person, and with repair or maintenance using qualified personnel or no facilities strung between such structures or contractors at the utility operator's sole expense. otherwise within, under or above the rights-of- Upon receipt of a detailed invoice from the city, way, will pay the attachment fee set by city the utility operator will reimburse the city for the council resolution for each attachment. Unless costs the city incurred within 30 days. otherwise agreed to in writing by the city, the fee will be paid quarterly, in arrears, within 45 days 15.06.120 Vacation after the end of each calendar quarter, and will be accompanied by information sufficient to If the city vacates any rights-of-way, or illustrate the calculation of the amount payable. portion thereof, that a utility operator uses, the utility operator will, at its own expense, remove C. Unless otherwise agreed to in writing by its facilities from the rights-of-way unless the city the city, the fee set forth in subsection A of this reserves a public utility easement, which the city section will be paid quarterly, in arrears, for each quarter during the term of the license within 45 15-06-11 Exhibit A TIGARD MUNICIPAL CODE days after the end of each calendar quarter,and 2. Every utility operator will make will be accompanied by an accounting of gross available for inspection by the city at reasonable revenues, if applicable, and a calculation of the times and intervals all maps, records, books, amount payable. diagrams, plans and other documents maintained by the utility operator with respect to its facilities D. The calculation of the rights-of-way fee within the rights-of-way. Access will be provided required by this section is subject to all applicable within the city unless prior arrangement for access limitations imposed by federal or state law. elsewhere has been made with the city. E. The city reserves the right to enact other B. If the city conducts an audit and the fees and taxes applicable to the utility operators city's audit of the books, records and other subject to this chapter. Unless expressly permitted documents or information of the utility operator or by the city in enacting such fee or tax, or required utility service provider demonstrates that the by applicable state or federal law, no utility utility operator or provider has underpaid the operator may deduct, offset or otherwise reduce or rights-of-way fee or franchise fee by three percent avoid the obligation to pay any lawfully enacted or more in any one year, the utility operator will fees or taxes based on the payment of the rights- reimburse the city for the cost of the audit, in of-way fee or any other fees required by this addition to any penalties owed pursuant to TMC chapter. 15.06.180 or as specified in a franchise. G. Acceptance of any payment will not be C. Any underpayment, including any construed as accord that the amount paid is in fact penalty or audit cost reimbursement, will be paid the correct amount, nor may such acceptance of within 30 days of the city's notice to the utility payment be construed as a release of any claim operator or provider of such underpayment. the city may have for further or additional sums payable. 15.06.150 Insurance and Indemnification 15.06.140 Records and Audits A. Insurance. A. Within 30 days of a written request from 1. All utility operators will maintain the city, or as otherwise agreed to in writing by in full force and effect the following liability the city: insurance policies that protect the utility operator and the city, as well as the city's officers, agents, 1. Every utility operator or provider and employees as additional insureds: of utility service will furnish the city with information sufficient to demonstrate that the a. Comprehensive general provider is in compliance with all the liability insurance with limits not less than requirements of this chapter and its franchise • $3,000,000 for bodily injury or death to each agreement, if any, including but not limited to person, $3,000,000 for property damage resulting payment of any applicable business registration from any one accident, and $3,000,000 for all fee, license fee, rights-of-way fee, or franchise other types of liability. fee. b. Motor vehicle liability insurance for owned, non-owned, and hired 15-06-12 Exhibit A TIGARD MUNICIPAL CODE vehicles with a limit of $2,000,000 for each regulations or permits of the city. This obligation person and$3,000,000 for each accident. is in addition to any financial guarantee required pursuant to TMC 15.04. c. Workers compensation insurance with statutory limits and employer's C. Indemnification. liability with limits not less than$1,000,000. 1. To the fullest extent permitted by 2. The limits of the insurance will be law, each utility operator will defend, indemnify subject to statutory changes as to maximum limits and hold harmless the city and its officers, of liability imposed on municipalities of the State employees, agents and representatives from and of Oregon. The insurance will be without against any and all liability, causes of action, prejudice to coverage otherwise existing claims, damages, losses, judgments and other (excepting workers compensation insurance) and costs and expenses, including attorney fees and include, as additional insureds the city and its costs of suit or defense (at both the trial and officers, agents and employees. The coverage appeal level, whether or not a trial or appeal ever must apply as to claims between insureds on the takes place)that may be asserted by any person or policy. The utility operator will provide the city entity in any way arising out of, resulting from, 30 days' prior written notice of any cancellation during or in connection with, or alleged to arise or material alteration of said insurance. If the out of or result from the negligent, careless or insurance is canceled or materially altered, the wrongful acts, omissions, failure to act or other utility operator will maintain continuous misconduct of the utility operator or its affiliates, uninterrupted coverage in the terms and amounts officers, employees, agents, contractors, required. The utility operator may self-insure, or subcontractors or lessees in the construction, keep in force a self-insured retention plus operation, maintenance, repair or removal of its insurance,for any or all of the above coverage. facilities, and in providing or offering utility services over the facilities, whether such acts or 3. The utility operator will maintain omissions are authorized, allowed or prohibited on file with the city proof of self-insurance by this chapter or by a franchise agreement. The acceptable to the city, certifying the coverage acceptance of a license under TMC 15.06.070 required above. constitutes such an agreement by the applicant whether the same is expressed or not. Upon B. Financial Assurance. Unless otherwise notification of any such claim the city will notify agreed to in writing by the city, before a franchise the utility operator and provide the utility operator granted or a license issued pursuant to this chapter with an opportunity to provide defense regarding is effective, and as necessary thereafter,the utility any such claim. operator will provide a performance bond or other financial security, in a form acceptable to the city, 2. Every utility operator will also as security for the full and complete performance indemnify the city for any damages, claims, of the franchise or license, and for compliance additional costs or expenses assessed against or with the terms of this chapter, including any costs, payable by the city arising out of or resulting, expenses, damages or loss to the city because of directly or indirectly, from the utility operator's any failure attributable to the utility operator to failure to remove or relocate any of its facilities in comply with the codes, ordinances, rules, the rights-of-way or easements in a timely 15-06-13 Exhibit A TIGARD MUNICIPAL CODE manner, unless the utility operator's failure arises 15.06.180 Penalties directly from the city's negligence or willful misconduct. A. Any person who fails to timely pay the right-of-way fee pursuant to TMC 15.06.130 is 15.06.160 Compliance subject to the following penalties: Every utility operator or provider will 1. First occurrence during any comply with all applicable federal and state laws calendar year: 10% of the amount owed or $25, and regulations, including regulations of any whichever is greater. administrative agency thereof, as well as all 2. Second occurrence during any applicable ordinances, resolutions, rules, and calendar year: 15% of the amount owed or $50, regulations of the city, heretofore or hereafter whichever is greater. adopted or established during the term of any license granted under this chapter. 3. Third occurrence during any calendar year: 20% of the amount owed or $75, 15.06.170 Confidential/Proprietary whichever is greater. Information 4. Fourth occurrence during any If any person is required by this chapter to calendar year: 25% of the amount owed or $100, provide books, records, maps or information to whichever is greater. the city that the person reasonably believes to be confidential or proprietary, the city will take B. Penalties imposed are merged with, and reasonable steps to protect the confidential or become part of,the fee required to be paid. proprietary nature of the books, records, maps or information to the extent permitted by the Oregon C. The city fmance director, in the Public Records Law; provided, that all documents director's sole discretion,may reduce or waive the are clearly marked as confidential by the person at penalties in this section. the time of disclosure to the city. In the event the city receives a public records request to inspect D. Payment of penalties is due with the any confidential information and the city next regular quarterly right-of-way fee payment. determines that it will be necessary to reveal the confidential information, to the extent reasonably 15.06.190 Violations possible the city will notify the person who submitted the confidential information of the A. Any person found in violation of any of records request prior to releasing the confidential the provisions of this chapter or the license are information. The city is not required to incur any subject to a penalty of not less than$150 nor more costs to protect such documents, other than the than $2,500 for each offense. A violation will be city's routine internal procedures for complying deemed to exist separately for each and every day with the Oregon Public Records Law. during which a violation exists. B. Nothing in this chapter limits any judicial or other remedies the city may have at law or in equity,for enforcement of this chapter. 15-06-14 Exhibit A TIGARD MUNICIPAL CODE 15.06.200 Severability and Preemption A. The provisions of this chapter will be interpreted to be consistent with applicable federal and state law, and, 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, covenant or portion of this chapter 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 chapter will not be affected thereby but will be deemed as a separate, distinct and independent provision. Such holding will not affect the validity of the remaining portions hereof, and each remaining section, subsection, sentence, clause, phrase, term, provision, condition, covenant or portion of this chapter will be valid and enforceable to the fullest extent permitted by law. In the event any provision is preempted by federal or state laws, rules or regulations, the provision will be preempted only to the extent required by law and any portion not preempted will survive. If any federal or state law resulting in preemption is later repealed, rescinded, amended or otherwise changed to end the preemption, such provision will thereupon return to full force and effect and will thereafter be binding without further action by the city 15.06.210 Application to Existing Agreements To the extent that this chapter is not in conflict with and can be implemented consistent with existing franchise agreements, this chapter applies to all existing franchise agreements granted to utility operators by the city. 15-06-15