Ordinance No. 14-06 CITY OF TIGARD, OREGON
TIGARD CITY COUNCIL
ORDINANCE NO. 14-()
AN ORDINANCE AMENDING TIGARD MUNICIPAL CODE CHAPTER 15.06 "FRANCHISED
UTILITY ORDINANCE" TO MODIFY A PER FOOT FEE, UPDATE DEFINITIONS, CLARIFY
INSURANCE REQUIREMENTS AND UPDATE OTHER SECTIONS.
WHEREAS, Tigard Municipal Code ("TMC' Chapter 15.06 governs use of the rights-of-way by utility
operators;and
WHEREAS, TMC Section 15.06.020 "Definitions" needs to be amended to reflect that the term "gross
revenues" means revenue that is `derived' rather than `earned' so as to clarify the basis for the franchise fee
calculation;and
WHEREAS, TMC Section 15.06.020 "Definitions" needs to be amended to clarify the term "person" by
including any`other form of organization' to reduce confusion in the future about who is qualified as a person;
and
WHEREAS,TMC Section 15.06.020 "Definitions" needs to be amended to clarify the term "right-of-way" by
broadening it to include rights-of-way owned or maintained by other jurisdictions that are within the city,to the
extent the city has authority to authorize use of such rights-of-way;and
WHEREAS, TMC Section 15.06.020 "Definitions" needs to be amended to add the term
"telecommunications" which clarifies the use throughout the chapter and to reduce confusion in the future
about what qualifies as telecommunications;and
WHEREAS, TMC Section 15.06.020 "Definitions" needs to be amended to clarify the term
"telecommunications system" so that it confirms to the new definition of"telecommunications;"and
WHEREAS,TMC Section 15.06.090 "Franchise Fee" requires interest to be paid on late fee payments but is
unclear on how the interest is to be calculated. Clarification is necessary to reflect the interest should be
"calculated and compounded monthly";and
WHEREAS, TMC Section 15.06.090 "Franchise Fee" is silent about the need for verification of fee payment
accuracy by an officer of the utility provider or other authorized representative with fiduciary responsibility and
the reporting form required to be filed with the payment of franchise fees;and
WHEREAS,TMC Section 15.06.100"Right-of-Way Usage Fee"provides for a per linear foot fee to ensure the
City receives fair and reasonable compensation for private use of the rights-of-way. Clarification is needed to
address utility companies that do not derive gross revenues in Tigard;and
WHEREAS, TMC Section 15.06.100 "Right-of-Way Usage Fee" requires interest to be paid on late fee
payments but is unclear on how the interest is to be calculated. Clarification is necessary to reflect the interest
should be"calculated and compounded monthly";and
WHEREAS,TMC Section 15.06.100 "Right-of-Way Usage Fee" is silent about the need for verification of fee
payment accuracy by an officer of the utility provider or other authorized representative with fiduciary
responsibility and the reporting form required to be filed with the payment of right-of-way usage fees;and
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WHEREAS, TMC Section 15.06.140 "Renewal" contains a Scribner's error in referencing TMC Section
15.04.120 rather than 15.06.120 and should be corrected. This section does not reference renewal information
contained in TMC 15.06.090A and this should be added for clarification;and
WHEREAS, TMC Section 15.06.180 "Insurance" requires update to bring insurance requirements to be in
keeping with 2014 insurance practice;and
WHEREAS,TMC Section 15.06.190"Indemnification"was originally adopted in 2006. Amendment is needed
to provide relevant language for today and include claims and hearings before administrative agencies;and
WHEREAS, TMC Section 15.06.220 "Location of Facilities" is silent about high voltage electric lines being
exempt from placement underground. Amendment is needed to clarify that point and remove the redundant
phrase"within the city,"which is included in the definition of"right-of-way";and
WHEREAS, TMC Section 15.06.240 "As-Built Drawings" requires utility companies provide paper plans of
their facilities with the City. Amendment is needed since utility companies now provide plans in an electronic
data format;and
WHEREAS,TMC Section 15.06.370"Application to Existing Agreements"requires clarification on how TMC
Chapter 15.06 applies to franchise agreements.
NOW,THEREFORE,THE CITY OF TIGARD ORDAINS AS FOLLOWS:
SECTION 1: Sections of TMC Chapter 15.06 are amended as set forth as Exhibit A to this ordinance and
are approved and adopted by the City Council.
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 vote of all council members present after being read by number
and title only,this V*-"'—day of .i� ,2014.
Carol A. Krager,Deputy City4kecorder
APPROVED: By Tigard City Council this day of ,2014.
johro.Cook,Mayor
Approved as o form:
Special C
� 20/
Date
ORDINANCE No. 14-0 6
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ExHIBIT A
Strike through text is deleted from the Code and underlined text is added to the Code.
Tigard Municipal Code
Chapter 15.06 FRANCHISED UTILITY ORDINANCE
Section 15.06.020 Definitions
I ■ "Gross revenues" means revenues earned derived within the city, less net uncollectibles, from the
sale of electrical energy, gas, telecommunications, water, or sanitary sewage disposal and treatment
service,and for the use,rental,or lease of utility facilities of the utility engaged in such business.
I "Person' means every natural person, firm, co-partnership, association, corporation, or ntity or
other form of organization,but not including special districts or county service districts.
■ "Right-of-way" includes city streets, roads, bridges, alleys, sidewalks, trails, paths, and all other
public ways and areas managed by the city or other public entity within the City of Tigard. "Right-
of-way" also includes public utility easements to the extent that the easement allows use by the utility
operator planning to use or using the public utility easement. "Right-of-way"includes the subsurface
under and airspace over these areas. "Right-of-way" does not include the airwaves for purposes of
CMRS, broadcast television, DBS and other wireless providers, or easements or other property
interests owned by a single utility or entity. This definition applies only to the extent of the city's
right, title,interest and authority to grant a franchise to occupy and use such areas for utility systems.
■ "Telecommunications" means any service provided for the purpose of the transmission of audio,
video, digital or other forms of electric or electronic signals or information without regard to the
transmission protocol employed. Telecommunications includes all forms of telephone services and
voice, video, data or information transport, but does not include: (1) cable service as defined in 47
U.S.C. 5 522(6); (_2)open video system service, as defined in 47 C.F.R. 76; (3) telecommunications
provided through a system that is owned or operated exclusively by a person or government entity
for their private use and not, directly or indirectly, for sale, resale, lease trade, barter or other
exchange of value; (4 over-the-air radio or television broadcasting to the public-at-large from
facilities licensed by the Federal Communications Commission or any successor thereto; and (5)
direct-to-home satellite service within the meaning of Section 602 of the Telecommunications Act.
■ "Telecommunications system" means a system of fibers, lines, cables, antennas, microwave links,
or other conduit and supporting structures and equipment constructed or used for the purpose of
transmitting or providing telecommunications audie, v4dea, digital or other forms of eleetrie o
"Telecommunications system" does not include a cable
eornmunieations system as defined in 47 U.S.C. § 5220. However, if a portion of a cable
system is also used for telecommunications other than cable
eowAittiniefitiefts-
service, the system is both a cable system and a telecommunications system.
"Telecommunications system"does not include a system used for the transmission of electric power
solely for power purposes, even if a portion of the system is used to communicate information
about the power system for use by the system operator. "Telecommunications system" does not
include mobile telecommunications equipment (e.g. cellular phones, hand-held or vehicle-mounted
radios) but does include fixed antennas and other fixed equipment used to convey signals to or from
mobile telecommunications equipment.
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Section 15.06.090 Franchise Fee (subsection D and adding subsection E)
■ D. The franchise fee shall be payable semi-annually on or before March 15th for the six-month
period ended December 31st,and September 15th for the six-month period ended June 30th, unless
otherwise stated in the resolution authorizing the franchise. The franchisee shall pay interest at the
I rate of nine percent per year for any payment made after the due date, calculated and compounded
monthly. (Ord. 06-11;Ord. 02-05)
E. Accompanying each payment to the city under this Section, franchisee shall file with the city a
written report containing an accurate statement in summarized form of its calculation of the amount
of the payment, verified by an officer or other authorized representative of franchisee with fiduciary
responsibility, setting forth its Gross Revenues according to their accounting subdivisions, and any
deductions claimed for the period upon which the payment is computed. The report of a utility
operator paying a per linear foot fee shall include the total linear feet of utility facilities in the city
and any changes in the total linear feet during the payment period. Such reports shall be in form
satisfactory to the city.
Section 15.06.100 Right-of-Way Usage Fee (subsections A & E and adding subsection F)
■ A. All persons using a utility system or facility in the right-of-way to provide service to customers
within the City of Tigard shall pay a right-of-way usage fee that is the greater of. (1) the applicable
percentage of gross revenues set forth in subsection B of this section or (2) $10.000.00. Any
person that owns a utility system or facility in the right-of-way of the City of Tigard but does not
derive any gross revenues from such system or facility shall pay a right-of-way usage fee that is the
greater of;et _4} the linear foot fee set by council resolution pursuant to subsection C of this
section or (2) $10,000.00. The right-of-way usage fee is subject to any applicable limitations
imposed by federal and state statutes, including the privilege tax limitations set forth in ORS
221.410 through 221.655;. Payment shall be made on the schedule set forth in subsection E of
this section or as specified in a franchise agreement.
■ E. Unless otherwise agreed to by the city, the right-of-way usage fee shall be payable semi-annually
on or before March 15th for the six-month period ended December 31st, and September 15th for
the six-month period ended June 30`h. The utility shall pay interest at the rate of nine percent per
year for any payment made after the due date, calculated and compounded monthly. (Ord. 12-04
§§1,2;Ord. 08-21A;Ord. 06-11)
■ F. Accompanying each payment to the city under this Section,utility operator shall file with the city
a written report containing an accurate statement in summarized form of its calculation of the
amount of the payment, verified by an officer or other authorized representative of utility operator
with fiduciary responsibility. The report of a utility operator paying based on a Percentage of
revenue shall set forth its Gross Revenues according to their accounting subdivisions, and any
deductions claimed for the period upon which the payment is computed. The report of a utility
Werator paying the ler linear foot fee shall include the total linear feet of utility facilities in the city
and any changes in the total linear feet during the pawperiti
od, and a statement that the ulity
operator does not derive any gross revenues from its utility system or facilities in the city. All
reports shall be in a form satisfactory to the city.
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Section 15.06.140 Renewal
■ A franchisee that desires to renew a franchise shall submit a letter requesting renewal including the
information set forth in Sections 15.06.090A and 15.0406.120 to the city manager no less than 180
days before expiration of the franchise. (Ord. 06-11)
Section 15.06.180 Insurance
A. All utility operators shall maintain in full force and effect commercial general liability insurance
covering bodily injury and property damage on an "occurrence" form (1996-1SQCG2010 1185 or
equivalent) and automobile liability insurance to cover vehicles used in connection with utility
operators activities acceptable to the city. Such insurance shall cover a4-risks arising directly or
indirectly out of the utility operator's activities or work under this chapter, including all
subcontractors to any tier. The policy or policies of insurance maintained by the utility operator
shall provide at least a general aggregate limit of $5 million with a per occurrence limit of $3
million, insuring the utility operator and naming the city,its officers, directors and employees as apt
additional insureds with respect to this chapter on the policy. The utility operator shall cause a
certificate of insurance to be provided to the city recorder.
Comprehensive form premises-operations, explosions and collapse hazard underground hazard
and products completed hazard with limits reflected above shall be included.
If utility operator's liability insurance is on a "claims-made" basis and (1) coverage is in any way
cancelled, non-renewed or coverage otherwise terminates or (2) the franchise agreement is not
renewed, utility operator will provide two years of continuous claims-made coverage or 1rovide tail
coverage for a period of two years.
B. Workers' Compensation coverage as required by Oregon law and Employer's Liability Insurance
with limits equal to $1 million shall be maintained in full force and effect in a form acceptable to
the ci1y.
R.C. As an alternative, a utility operator may provide and keep in force self-insurance-or a self-insured
retention plus insurance in an equal amount to the insurance required to be obtained from a third-
party insurer. The utility operator shall provide proof of self-insurance acceptable to the city if it
chooses to self-insure.
G.D.The procuring of required insurance or self-insurance shall not be construed to limit utility
operator's liability. Notwithstanding said insurance or self-insurance, the utility operator shall be
obligated for the total amount of any damage, injury, or loss caused by the utility's operations
negligence or neglect connected with this chapter.
D-E.There shall be no cancellation, material change, exhaustion of aggregate limits or intent not to
renew insurance coverage without 30- -written notice to the city. Any failure to comply with this
provision will not affect the insurance coverage provided to the city. A 30 dayg' fiatiee of
ELF. The utility operator's coverage shall be primary to the extent permitted by law and insurance
maintained by the city is excess and not contributory insurance as to the insurance required by this
chapter. (Ord. 06-11)
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Section 15.06.190 Indemnification
Each utility operator shall defend, indemnify and hold the city and its officers, employees, agents
and representatives harmless from and against any and all liability, causes of action, claims, damages,
losses, judgments and other costs and expenses, including attorney fees and costs of suit or defense
(at both the trial and appeal level, whether or not a trial or appeal ever takes place including any
hearing before federal or state administrative agencies) that may be asserted by any person or entity
in any way arising out of, resulting from, during or in connection with, or alleged to arise out of or
result from the negligent,careless,or wrongful acts,omissions, failure to act, or other misconduct of
the utility operator or its affiliates,officers,employees,agents, contractors, subcontractors, or lessees
in the construction, operation, maintenance, repair, or removal of its facilities, and in providing or
offering services over the facilities, whether such acts or omissions are authorized, allowed, or
prohibited by this chapter or by a franchise agreement except that arising out of the sole neg_lieence
of the City. The utility operator shall use legal counsel acceptable to the City,which may be separate
legal counsel if reasonably requested by the City in the event the utility operator's legal counsel
cannot adequately represent the City. Upon notification of any such claim the city shall notify the
utility operator and provide the utility operator with an opportunity to provide defense regarding any
such claim. (Ord. 06-11)
Section 15.06.220 Location of Facilities
■ All facilities located within the right-of-way shall be constructed, installed and located in accordance
with the following terms and conditions,unless otherwise specified in a franchise agreement.
A. Whenever all existing electric utilities (not including high voltage electric lines), cable facilities or
telecommunications facilities are located underground within a right-of-wayef4he,e*, the city
may require a utility operator with permission to occupy the same right-of-way to locate its
facilities underground.
B. Whenever all new or existing electric utilities (not including high voltage electric lines), cable
facilities and telecommunications facilities are located or relocated underground within a right-
of-way of the eity, the city may require a utility operator that currently occupies the same right-
of-way to relocate its facilities underground concurrently with the other affected utilities to
minimize disruption of the right-of-way. (Ord. 06-11)
Section 15.06.240 As-Built Drawings
■ The utility operator shall provide the city with two eemplete gets of lectronic data in read-only
format showing current engineered plans in a form acceptable to the city showing the location of all
its utility facilities within rights-of-way after initial construction of its system and, to the extent
available, shall provide the city two updated complete sets of as-built plans annually,upon request by
the city. (Ord. 06-11)
Section 15.06.370 Application to Existing Agreements
■ This chapter shall be applied to all persons and activities,including existing franchisees, to the extent
that this chapter is not in conflict with and can be implemented consistent with the terms of the
franchise.
(Ord. 06.11;Ord. 00-35)
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