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.
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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.
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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;
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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
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Exhibit A
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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