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Ordinance No. 00-35 Note. On December 19, 2000, the Tigard City Council adopted this ordinance with amendments. The amendments are listed in the attached December 15, 2000, CITY OF TIGARD,OREGON memorandum from Finance _ Director Craig Prosser ORDINANCE NO.00.4J_ and Attorney Gary Firestone. Catherine Wheatley n, City Recorder to AN ORDINANCE AMENDING THE TIGARD MUNICIPAL CODE BY ADOPTING A NEW CHAPTER 5.14,TELECOMMUNICATIONS FRANCHISES. WHEREAS,the Telecommunications Act of 1996 deregulated the telecommunications industr=y and created new standards for the granting of telecommunications franchises;and WHEREAS, since the passage of the Telecommunications Act, the City of Tigard has seen an increase in the number of companies seeking to use the public rights of way for telecommunications fiber, cable, and conduit and the number of franchises granted within the last year has increased dramatically;and WHEREAS, the City has the authority to provide fair and equitable access to rights of way while preserving the rights of way for safe and reliable transportation and to implement rules and regulations to accomplish these purposes; WHEREAS,the City has an obligation to avoid erecting barriers to entry to the Tigard market and to remain comepetively neutral in the granting of franchises WHEREAS, the City wishes to establish uniform standards for the granting and management of its telecommunications franchises and to clearly state its requirements for the use of its public rights of way by telecommunications companies; NOW,THEREFORE,THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: A new Chapter 5.14, Telecommunications Franchises, is added to the Tigard Municipal Code in the form of Exhibit A attached hereto and incorporated by this reference. 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 U1)Uf\0A0U5 vote of all Council members present after being read by number and title only,this-/ - dayof DeC,0_' bVL 2000. Y Catherine Wheatley,City R der ORDINANCE No.00.3 5 Page ] APPROVED: By Tigard City Council this day of J ' Cam Li ,2000. ies Griffi ,Ma Appro as to form: ty tto ey Date ORDINANCE No.00-3 s Page 2 Exhibit A TELECOMMUNICATIONS FRANCHISE ORDINANCE GENERAL TERMS& CONDITIONS 5.14.010 Short Title This Chapter shall be known and referred to as the Tigard Telecommunication Ordinance. 5.14.020 Definitions (a) Telecommunications system. As used in this chapter, "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 audio,video,digital or other forms of electric or electronic signals or information. "Telecommunications system"does not include a cable communications system. However,if a portion of a cable communications systems is also used for telecommunications other than cable communications,the system is both a cable communications 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. (b) Franchise. As used in this chapter,"franchise"means the privilege conferred on a person or entity by the City to place and operate portions of a telecommunications system in,over or under rights of way. Franchises shall be conferred by ordinance and confirmed by a franchise agreement. (c) Right of way. As used in this chapter,"right of way"includes City streets,roads, bridges,alleys,sidewalks,trails,paths,and all other public ways and areas managed by the City. "Right of way"also includes public utility easements to the extent that the easement allows use by the franchisee planning to use or using the public utility easement. "Right of way"includes the subsurface under and airspace over these areas. (d) Competitive telecommunications service provider. As used in this chapter, "competitive telecommunications service provider"means an operator of a telecommunications system that does not have exclusive rights to provide service to a geographic area under state or federal law ORDINANCE No.00-35 I Page 1 5.14.030 Purpose The purpose and intent of this ordinance is to: (a) Comply with the provisions of the 1996 Telecommunications Act as they apply to local governments,telecommunications carriers and the service those carriers offer; (b) Promote competition on a competitively neutral basis in the provision of telecommunications services; (c) Encourage the provision of advanced and competitive telecommunications services on the widest possible basis to businesses institutions and residents of the City; (d) Permit and manage reasonable access to the public rights of way of the City for telecommunications purposes on a competitively neutral basis and conserve the limited physical capacity of those public rights of way held in trust by the City; (e) Assure that the City's current and ongoing costs of granting and regulating private access to and the use of the public rights of way are fully compensated by the persons seeking such access and causing such costs; (f) Secure fair and reasonable compensation to the City and its residents for permitting private use of the public rights of way. 5.14.040 Franchise Required No person shall place or maintain any portion of a telecommunications system within a right of way without a franchise. The City may grant a franchise allowing use of any right of way for any portion of a telecommunications system,consistent with the regulations established in or under the authority of this chapter. 5.14.050 Grant of Franchise (a) To competitive telecommunications service providers. The City Council may grant by resolution a telecommunications franchise to any person providing competitive telecommunications services who has submitted an application,meets the requirements of this Chapter,and agrees to sign the City's standard franchise agreement without modification. The franchise shall not be effective until the applicant signs the City's standard Telecommunications Franchise Agreement. The City Council shall approve the form of the standard Telecommunications Franchise Agreement by resolution. ORDINANCE No.oo-3 S� Z .Page 2 (b) To others, The City Council may grant telecommunications franchises in any other circumstance by ordinance. Any franchise ordinance shall not be effective until a franchise agreement is entered into by the City and the franchisee. (c) Nonexclusivity. All telecommunications franchises granted to competitive telecommunications service providers shall be nonexclusive. 5.14.060 Privilege Granted The franchise shall grant a privilege to use rights of way consistent with the requirements of this chapter. The franchise does not convey any right,title or interest in the right of way. 5.14.070 Term Unless otherwise specified in the franchise agreement and resolution or ordinance, franchises shall be in effect for ten years but in no case shall exceed 15 years. 5.14.080 Franchise Fee (a) Any person applying for a franchise(including an application for renewal)shall pay an application fee to cover the cost of processing the application. The City Council shall establish the fee by resolution. (b) A person granted a franchise shall pay an annual franchise fee in the amount of $7,500 or the amount established under the following subsections,whichever is greater: (1) For telecommunications utilities(as defined in ORS 759.005),five percent of gross revenues received from exchange access services (as defined in ORS 401.710)from customers within the City,less net uncollectibles from such revenues. (2) For long distance providers and private networks,$2.90 per linear foot of installations in the right of way,to be adjusted annually by the change in the Portland area CPL (3) For competitive access providers and all other franchisees who are not subject to subsections(1)and(2),five percent of gross revenues generated within the City. Gross revenue generated within the City includes monthly service charges paid by customers within the City,the full amount of charges for separately charged transmissions originating and received within the City,half the amount of separately charged transmissions that either originate or are received within the City but are received or originate outside the City,any amounts received for rental of facilitieg within the ri ht-o_f--way,and any other amounts received by the ORDINANCE No.00-35 3 Page 3 franchisee for services(including resale services)provided by the franchisee that use facilities within the right of way. In the event that a transmission is sent or received by a mobile device(e.g. cellular phone),the mobile device shall be deemed to be in the jurisdiction where the bills for use of the device are sent,regardless of actual location at the time of the transmission. (c) The franchise fee is compensation for use of rights of way and reimbursement of the City's cost of administering the program created in this chapter. The franchise fee is separate and distinct from any other legally authorized federal,state or local taxes or fees. (d) The fees imposed by this chapter are not subject to the property tax limitations of Article XI,sections I I(b)and 11(19)of the Oregon Constitution and are not fees imposed on property or property owners by fact of ownership and are not new or increased fees for purposes of those subsections. (e) The franchise fee shall be payable semi-annually on or before March 15 for the six month period ended December 31,and September 15 for the six month period ended June 30,unless otherwise stated in the resolution authorizing the franchise.. The franchisee shall pay interest at the rate of one percent per month for any payment made after the due date. APPLICATION RENEWAL PROCESS 5.14.100 Application An application for a franchise shall include: (a) A completed City application form. The City Manager shall prescribe the form to be used. (b) Information identifying the applicant and describing the telecommunications system the applicant proposes to operate in rights of way.The initial application shall include engineering plans,specifications and a network map showing the anticipated location and route of proposed telecommunications facilities in the right of way,including both existing and proposed facilities. If any of the facilities are owned by others,that information should be provided. (c) Information establishing that the applicant has obtained all other required governmental approvals to construct and operate the system and to offer or provide the telecommunications services proposed,including,if applicable,any PUC filings or approvals. (d) The application fee. ORDINANCE No.00�is 4 Page 4 — (e) Information showing that applicant has the financial,technical and legal capacity to provide the services and comply with the requirements of this chapter. That information shall include a summary of the franchisee's business history. (f) A business plan showing the intention and ability to provide services for which the franchise is required. 5.14.110 Denials Any denial of a franchise application shall be in writing and state the reasons for the denial. The City may deny an application for a franchise: (1) If the franchisee has not complied with all application requirements and standards; (2) If the franchisee lacks sufficient financial,technical or legal*capacity to provide services and assure compliance with applicable standards; (3) If the franchisee has a record of non-compliance; (4) If other factors demonstrate that the grant of a privilege to use rights of way is not in the public interest of the City and its citizens. 5.14.120 Renewal A franchisee that desires to renew a franchise shall submit an application for renewal on a form prescribed by the City Manager no less than 180 days before expiration of the franchise. OBLIGATIONS OF FRANCHISEE 5.14.200 Assignment or Transfer of Franchise A franchise may not be transferred or assigned without the express written consent of the City. A transfer of ownership or control of a majority interest in the franchisee shall constitute transfer of the franchise. If a franchise is assigned or transferred,the assignee or transferee shall become responsible for all facilities of the existing transferee at the time of transfer. The City shall allow the transfer or assignment if a transfer fee in an amount determined by resolution has been paid,the transferee or assignee meets all requirements imposed on franchisees,and the transferee or assignee agrees in writing to be bound by the franchise agreement and all applicable regulations. A transfer or assignment.of a franchise does not extend the term of the franchise. s ORDINANCE No.Od 5 5 Page 5 5.14.210 Leased Capacity A franchisee may lease capacity or bandwidth on its systems to others,provided that the franchisee provides the City with the name and business address of any lessee. All persons leasing capacity or bandwidth on a telecommunication system and providing telecommunications services to others using that capacity or bandwidth are required to obtain a telecommunications franchise. 5.14.220 Duty to Provide Information,Audit Responsibility Within 10 business days of a written request from the City, franchisee shall furnish the City: (a) Information sufficient to demonstrate that franchisee is in compliance with this ordinance and its franchise agreement; (b) Access to all books,records,maps,and other documents,maintained by the franchisee with respect to its facilities in rights of way so that the City may perform an audit. Access shall be provided within the Portland Oregon metropolitan area. (c) If the City's audit of the books,records and other documents maintained by franchisee demonstrate that the franchisee has underpaid the franchise fee by five percent or more in any one year,franchisee shall reimburse the City for the cost of the audit and shall pay interest as specified in Section 5.14.080 from the original due date. 5.14.230 Service to the City If the City contracts for use of telecommunications facilities,services,installation or maintenance from the franchisee,the franchisee shall charge the City franchisee's most favorable rate offered at the time of the request to similar users within Oregon for a similar volume of service,subject to state law. With the City's permission,the franchisee may deduct any applicable charges from franchise fee payments. Other terms and conditions of services provided by franchisee to the City may be specified in a separate agreement. 5.14.240 Insurance All franchisees shall secure and maintain public liability insurance,with a 30 day cancellation clause,with a combined single limit of$3 million,insuring the franchisee and the City. The franchisee shall cause a certificate of insurance to be provided to the City Recorder. The insurance shall indemnify and hold the City harmless against liability or damage which may arise or occur from any claim resulting from franchisee's operations under this agreement and shall provide for a defense of the City against such claims. ORDINANCE No.00.;E 6 Page 6 As an alternative,a franchisee may provide and keep in force self-insurance in an equal amount to the insurance required to be obtained from a third-party insurer. The franchisee shall indemnify,defend and hold harmless the City through its self-insurance program against any and all claims,actions,demands and suits(including attorney fees and costs)arising our of or resulting from the franchisee's activities. The franchisee shall provide proof of self-insurance acceptable to the City if it chooses to self-insure. 5.14.250 Indemnification Each franchisee shall defend,indemnify and hold the City and its officers,employees, agents and representatives harmless from and against any and all damages,losses, and expenses,including reasonable attorney fees and costs of suit or defense,arising out of, resulting from,or alleged to arise out of or result from the negligent,careless,or wrongful acts,omissions,failure to act,or other misconduct of the C ntee or its affiliates,officers,employees,agents,contractors,subcontractors,or lessees in the construction,operation,maintenance,repair,or removal of its telecommunications facilities,and in providing or offering telecommunications services over the facilities or network,whether such acts or omissions are authorized, allowed,or prohibited by this Ordinance or by a franchise agreement. 5.14.250 Damage to Grantee's Facilities The City shall not be liable for any damage to or loss of any telecommunications facility as a result or in connection with any work by or for the City or for any consequential damages or losses resulting from such work unless the damage or loss is the direct and proximate result of willful,intentionally tortious;or malicious acts by the City. 5.14.270 Performance Surety Each franchisee must provide a performance bond acceptable to the City as security for the full and complete performance of any franchise granted under this Ordinance,to cover any costs,expenses,damages or loss the City pays or incurs because of any failure attributable to the franchisee to comply with the codes,ordinances,rules,regulations or permits of the City. The bond shall be in amount sufficient to pay for the removal of all of franchisee's facilities within the right of way. 5.14.280 Location of Facilities All facilities located within the public 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,cable facilities or telecommunications facilities are located underground within a public right of way of the City,the ORDINANCE No.©o-35 7 Page 7 City may require a franchisee with permission to occupy the same public right of way to locate its telecommunications facilities underground. (b) Whenever all new or existing electric utilities,cable facilities and telecoinmunications facilities are located or relocated underground within a public right of way of the City,the City may require a franchisee that currently occupies the same public right of way to relocate its facilities underground concurrently with the other affected utilities to minimize disruption of the public right of way. 5.14.290 Interference with Rights of Way No franchisee may locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the public rights of way by the City,by the general public or by other persons authorized to use or be present in or upon the public rights of way. All use of public rights of way shall be consistent with City codes,ordinances and regulations. No franchisee shall engage in work in a right of way during any moratorium on right of way work, except as permitted by the City in case of an emergency. CONSTRUCTIONISSUES 5.14.300 Construction Permits No person shall construct or install any telecommunications facilities within a public right of way without first obtaining a construction permit,and paying the construction/street opening fee established pursuant to Section 5.14.320. No permit shall be issued for the construction or installation of telecommunications facilities within a right of way unless the telecommunications carrier has obtained a franchise. Construction permits may be applied for at the same time a franchise is applied for. 5.14.310 Facilities All telecommunications facilities in the right of way shall be constructed,installed, operated and maintained in accordance with all applicable federal,state,and local statutes,codes,ordinances,rules and regulations. All facilities shall comply with applicable design standards imposed by regulation or construction permit. No facility may be placed on any City facility without the express written consent of the City. The City may require separate payment for rental of space on City facilities. For purpose of this section,a right of wag,street or sidewalk is not a facility,but structures,including poles,conduit,boxes, and equipment,are facilities. ORDINANCE No.00-3 8 Page 8 5.14.320 Permit Applications A. Applications for construction permits shall be submitted on forms provided by the City and shall be accompanied by drawings,pians,and specifications in sufficient detail to demonstrate: 1. That the facilities will be constructed in accordance with all applicable codes,rules and regulations; 2. That the facilities will be constructed in accordance with the franchise agreement; 3. The location and route of all new facilities to be installed as well as all of applicant's existing facilities in the construction area,including a cross-section to show the facilities in relation to the street,curb, sidewalk and right of way. 4. The construction methods to be employed for protection of existing structures,fixtures and facilities and a description of any improvements that the applicant proposes to temporarily or permanently remove or locate. B. Applications for construction permits shall be accompanied by the following: 1. A verification of a registered professional engineer that the drawings,plans and specifications submitted with the application comply with all applicable technical codes,rules and regulations. 2. A written construction schedule,which shall include a deadline for completion of construction. The construction schedule is subject to approval by the City Engineer. 3. The construction/street opening fee in an amount to be determined by resolution of the City Council. The fee shall be designed to defray the costs of city administration of the construction permit program. 5.14.330 Review by City Engineer The City Engineer, after reviewing the materials submitted with the application,shall notify the franchisee if changes in the construction plans are needed and what City requirements must be met. If any work otherwise normally requiring a construction permit is conducted in response to an emergency,the franchisee shall furnish the required maps and materials within 30 days of commencing work. ORDINANCE No.00- 9 Page 9 5.14.340 Permit Issuance Upon a determination that the application and supporting information complies with the requirements of this chapter,the City Engineer shall issue a permit authorizing construction of the facilities,subject to conditions that the City Engineer deems appropriate to ensure compliance with this chapter and to protect the public health, safety,welfare and interest. In order to minimize disruption to transportation and to coordinate work to be performed in the right of way,the permit may specify a time period within which all work must be performed and require coordination of construction activities. The City Engineer may impose conditions regulating the location and appearance of facilities. 5.14.350 Compliance with Permit All construction shall be in accordance with the permit and approved plans and specifications. The City Engineer or designee shall be provided access to the work site and the opportunity to inspect any work in the right of way. The permittee shall provide, upon request,any information needed by the City Engineer or designee to determine compliance with applicable requirements. All work that does not comply with all requirement shall either be corrected or removed at the sole expense of the permittee. The City is authorized to issue stop work orders to assure compliance with this Chapter. 5.14.360 Notice of Construction Except in an emergency,the permittee shall notify the City Engineer not less than two working days prior to any excavation or construction in the right of way. 5.14.370 Construction in Right of Way The franchisee shall complete all construction within the right of way so as to minimize disruption of the right of way and utility service and without interfering with other public and private property. All construction work within rights of way,including restoration, must be completed within 120 days of issuance of the construction permit unless an extension or alternate schedule has been approved by the City Engineer. The franchisee shall comply with City traffic control procedures and standards. 5.14.380 As Built Drawings Franchisee shall provide City with two complete sets of engineered plans in a form acceptable to the City drawn to scale showing the location of all its telecommunications facilities within rights of way after initial construction of its system and shall provide the City two updated complete sets of as-built plans annually. ORDINANCE No.00_� 10 Page 10 5.14.390 Restoration of Public Rights of Way and City Property (a) When a franchisee,or any person acting on its behalf,does any work in or affecting any public rights of way or City property,it shall,at its own expense, promptly remove any obstructions therefrom and restore such ways or property to good order and condition unless otherwise directed by the City and as determined by the City Engineer or designee. (b) If weather or other conditions do not permit the complete restoration required by this section,the franchisee shall temporarily restore the affected rights of way or property. Such temporary restoration shall be at the franchisee's sole expense and the permittee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. Any corresponding modification to the construction schedule may be subject to approval by the City. (c) If the franchisee fails to restore rights of way or property to good order and condition, the City shall give the franchisee written notice and provide the franchisee a reasonable period of time not exceeding thirty(30)days to restore the rights of way or property. If,after said notice,the franchisee fails to restore the rights of way or property to as good a condition as existed before the work was undertaken,the City shall cause such restoration to be made at the expense of the permittee. (d) A franchisee or other person acting in its behalf shall use suitable barricades, flags,flagging attendants,lights,flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person,vehicle or property by reason of such work in or affecting such rights of way or property. (e) Franchisee shall restore all streets,alleys,roads and other public ways or places that it disturbs to the same condition the area was in prior to franchisee's work. Franchisee shall perform all work in compliance with applicable rules, regulations,ordinance or orders. The City Engineer may issue orders to ensure compliance with this Ordinance and proper protection of public and private property. If the franchisee fails to make repairs or provide restoration in response to any order within the time allowed under the order,City may make those repairs at the expense of the franchisee. ORDINANCE No.00-3 5 11 Page i l 5.14.400 Performance and Completion;Bond Prior to installing new telecommunications facilities in any right of way,the franchisee shall provide a performance bond or other surety acceptable to the City in an amount equal to at least 110%of the estimated costs of constructions of the new facilities within the rights of way. The surety shall remain in force until 60 days after substantial completion,including restoration of public rights of way and other property,as determined by the City. The surety shall guaranty timely completion,construction in compliance with applicable plans,permits,codes and standards,proper location, restoration of public rights of way and other property,and timely payment and satisfaction of all claims,demands or liens for labor,material or services. 5.14.410 Coordination of Construction Facilities All franchisees shall make a good faith effort to coordinate their construction schedules with those of the City and other users of the rights of way. (a) Prior to January 1 of each year,the franchisee will provide the City with a schedule of planned construction work for that year in or that may affect the right of way. (b) Franchisee agrees to meet with the City at least once each calendar year,at the request of the City,to schedule and coordinate work in rights of way. City shall share information on plans for other construction projects within rights of way. (c) All construction projects within rights of way shall be coordinated as ordered by the City Engineer or designee,to minimize public inconvenience,disruption,or damages. 5.14.420 Relocation or Removal of Facilities The franchisee shall temporarily or permanently remove,relocate,change or alter the position of any telecommunications facility within a public right of way when requested to do so in writing by the City. The removal,relocation,change or alteration shall be at franchisee's expense when the removal,relocation,change or alteration is needed because of construction,repair,maintenance,or installation of public improvements or other operations of the City within the right of way or is otherwise in the public interest. In the event that the removal,relocation,change or alteration is needed to accommodate private development or other private use of the right of way,the developer or other private party requiring the action shall be responsible for the cost of removal,relocation, change or alteration. The franchisee shall be under no obligation to remove,relocate, change or alter its facilities to benefit a private party unless and until the private party pays a deposit for costs to the franchisee. The City shall specify in the written notice the amount of time for removal,relocation,change or alteration. In the event of emergency, the franchisee shall take action as needed to resolve the emergency,and the City may use ORDINANCE No.00-35 12 Page 12 any form of communication to direct the franchisee to take actions in an emergency to protect the public safety,health and welfare. 5.14.430 Plan for Discontinuance or Removal Whenever a franchisee plans to discontinue any telecommunications facility,the franchisee shall submit a plan for discontinuance to the City. The plan may provide for removal of discontinued facilities or for abandonment in place. The City Engineer shall review the plan and issue an order to the franchisee specifying which facilities are to be removed and which may be abandoned in place The order shall establish a schedule for removal. The franchisee shall remain responsible for all facilities until they are removed. 5.14.440 Removal of Abandoned Facilities Within 30 days following written notice from the City,a franchisee and any other person that owns,controls,or maintains any unauthorized telecommunications system or facility within a right of way shall,at its own expense,remove the facilities and restore the right of way. A telecommunications facility that the City Engineer has approved to be abandoned in place is not an unauthorized telecommunications facility. A telecommunications system or facility is unauthorized under the following circumstances: (a) The telecommunications system or facility is outside the scope of authority granted by an existing franchise. This includes systems or facilities that were never franchised and systems or facilities that were once franchised but for which the franchise has expired or been terminated. This does not include any facility for which the City Engineer has authorized abandonment in place; (b) The system or facility has been abandoned and the City Engineer has not authorized abandonment in place. A system or facility is abandoned if it is not in use and not.planned for further use. A system or facility will be presumed abandoned if it is not use for a period of 90 days. A franchisee may overcome this presumption by presenting plans for future use of the facility that demonstrate planned use within a reasonable period. (c) The facility is improperly constructed or installed oris in a location not permitted by the franchise or this Ordinance. 5.14.450 Removal by City If the franchisee or former franchisee fails to remove any facility when required to do so under this Ordinance,the City may remove the facility and the franchisee or former shall be responsible for paying the full cost of the removal and any administrative costs incurred by the City in removing the facility and obtaining reimbursement. ORDINANCE No.00-35 13 Page 13 TERMINATION/CURES 5.14.500 Revocation or Termination of a Franchise The City Council may terminate a franchise for any of the following reasons: (a) Violation of this telecommunications ordinance. (b) Violation of a franchise agreement. (c) Misrepresentation in a franchise application,including a renewal application. (d) Abandonment of facilities. (e) Failure to pay taxes,compensation, fees or costs due the City. (f) Failure to restore rights of way after construction. (g) Failure to comply with technical,safety and engineering standards. 5.14.510 Standards for Termination In determining whether termination or some other sanction is appropriate,the following factors shall be considered: (a) The egregiousness of the misconduct; (b) The harm that resulted; (c) Whether the violation was intentional; (d) The franchisee's history of compliance; (e) The franchisee's cooperation in discovering,admitting and/or curing the violation. 5.14.520 Notice and Cure The City shall give franchisee written notice of any apparent violations before ten-iinating a franchise. The notice shall include a short and concise statement of the nature and general facts of the violation or noncompliance and provide a reasonable time (no less than 20 and no more than 40 days) for the franchisee to demonstrate that the franchisee has remained in compliance,that the franchisee has cured or is in the process of curing any violation or noncompliance,or that it would be in the public interest to impose a penalty or sanction less than termination. If the franchisee is in the process of ORDINANCE No.00�� 14 Page 14 curing a violation or noncompliance,the franchisee must demonstrate that it acted promptly and continues to actively work on compliance. If the franchisee does not respond or if the City Manager determines that the franchisee's response is inadequate, the City Manager shall refer the matter to the City Council,which shall provide a duly noticed public herring and determine whether the franchise shall be terminated, 5.14.530 Penalties Failure to comply with a provision of this Ordinance shall be a Class 1 civil infraction. 5.14.540 Other Remedies Nothing in this Chapter shall be construed as limiting any judicial or other remedies the City may have for enforcement of this Ordinance. SEPERAEILITF&APPLICATION TO EAUTING AGREEMENTS 5.14.600 Severability and Preemption If any provision of this Ordinance is for any reason declared or held to be invalid or unenforceable by any court of competent jurisdiction or superseded by state or federal legislation,rules,regulations or decision,the remainder of this Ordinance shall not be affected and all remaining portions shall be valid and enforceable to the fullest extent permitted bylaw. In the event any provision is preempted by federal or state law,the provision shall be preempted only to the extent required by law and any portion not preempted shall survive. If any federal or state law resulting in preemption is later repealed,rescinded or amended to end the preemption,the preempted provision shall return to full force and effect without further action by the City. 5.14.610 Application to Existing Agreements This Chapter shall be applied to all persons and activities,including existing franchisees, except that it shall not affect contract rights of existing franchisees. This Chapter shall fully apply to existing franchisees on termination of existing franchises. UftDocs/Craig's World/Franchises/Master Docs/telecommunications.or5.doc ORDINANCE No.0035 15 Page 15 Agenda Item No. Meeting of MEMORANDUM TO: Bill Monahan, City Manager c, FROM: Craig Prosser;% finance Director Gary Firestone, City Attorney's Office RE: Amendments to Proposed Telecommunications Franchise Ordinance DATE: December 15, 2000 The City has received several comments concerning the draft telecommunications franchise ordinance that has been circulated for review. In response to those comments, staff proposes the following changes to the proposed language in the ordinance. Staff will respond to other comments at the hearing. Staff comments are in italics. Section 5.14.020 Add a new definition of"telecommunications facility"as follows: "Telecommunications facility. As used in this chapter, "telecommunications facility" means any physical component of a telecommunications system. Although staff believed the meaning of the term was clear from the way it was used in the ordinance, staff agrees that defining the term could avoid disagreements over interpretation. New Section 5.14.090—Application Standards for Joint Telecommunications/Cable Franchises Add a new section 5.14.090: Persons or entities providing cable television and telecommunications services over the same network under a franchise negotiated, approved and recommended by the Metropolitan Area Communications Commission (MACC)and ratified by the City Council will be presumed to have met the application requirements for telecommunications franchise issued by the City. The telecommunications franchise and MACC franchise will be of equal term and the franchisee can rely on the insurance certificates and surety bonds pursuant to the MACC franchise. This provision does not exempt MACC franchisees from the requirements r to submit an application, obtain a franchise, pay the franchise fee, and otherwise comply with the requirements of this Chapter. This change is at the suggestion of ICN, which provides both cable and telecommunications services over a single system, A MACC franchise, which is only issued after Tigard City Council ratification, should be a sufficient demonstration that application standards are met. The franchisee would still have to comply with all provisions of the Chapter that provide post-approval regulation. Section 5.14.100(f) Modify Section 5.14.100(f)to read: A business pian showing the intention and ability to provide services for which the franchise is required. The franchisee may request that the business plan be kept confidential. A comment was received that the plan should be referred to as a "nonproprietary plan." The term "business plan"is a more commonly understood term. Franchisees have legitimate concerns about the need to keep information confidential. The proposed change would add a sentence that would allow the City to maintain confidentiality of the business plans if requested. Section 5.14.3208.1 Modify Section 5.14.3208.1 to read: A verification that the drawings, plans and specifications submitted with the application comply with all applicable technical codes, rules and regulations. The City may require that the verification be by a registered professional engineer. The original version required that the verification be by a registered professional engineer. Comments were received that some of the applications are for systems that would not normally require engineered drawings. The proposed amendment allows the City to require an engineer's verification where appropriate, but allows the applicant to verify other information. Section 5.14.380 Modify Section 5.14.380 to read: Franchisee shall provide City with two complete sets of engineered plans in a form acceptable to the City showing the location of all its telecommunications facilities within rights of way after initial construction of its system and shall provide the City two updated complete sets of as- built plans annually. The amendment eliminates the phrase "drawn to scale." The City can still require that the drawings be to scale if necessary. Section 5.14.410 Modify the title of the section to read: Coordination of Construction The existing title is "Coordination of Construction Facilities"which implies coordination of objects rather than the construction process itself. Section 5.14.410(a) Modify Section 5.14.410(a)to read: Prior to January 1 of each year,the franchisee will provide the City with a schedule of known construction work for that year in the City's rights of way or that may affect the rights of way. A comment was submitted to substitute the word"known"for"planned"as more inclusive of potential work. The suggested amendment also inserts wording inadvertently omitted from the ordinance tiled with Council. Section 5.14.440(b) Modify Section 5.14.440(b)to read: The system or facility has been abandoned and the City Engineer has not authorized abandonment in place. A system or facility is abandoned if it is not in use and is not planned for further use. A system or facility will be presumed abandoned if it is not used for a period of one year. A franchisee may overcome this presumption by presenting plans for future use of the facility that demonstrate planned use within a reasonable period. A comment was received that a 90-day period of non-use was not unusual The new language provides a presumption of abandonment after one year, consistent with at least one other city(Beaverton)in the metropolitan area. If Council wishes to adopt any or all of these amendments, a motion to amend the ordinance to add one or more of these suggested amendments will be necessary. After voting on that motion, the Council would then move the ordinance as amended.