Chapter 14.01 – TELECOMMUNICATIONS REGISTRATION AND FRANCHISING
Legislative History: Ord 1781 (1999)
14.01.010 General Provisions
14.01.020 Registration of Telecommunications Carriers
14.01.030 Construction Standards and Permits - Exception
14.01.040 Location of Telecommunications Facilities
14.01.050 Telecommunications Franchise
14.01.060 General Franchise Terms
14.01.070 Miscellaneous Provisions
back to top
14.01.010 General Provisions
A. Purpose and Intent. The purpose and intent of this Chapter is to:
1. Comply with the provisions of the 1996 Telecommunications Act as they apply to local governments, telecommunications carriers and the services those carriers offer;
2. Promote competition in the provision of telecommunications services on a competitively neutral basis;
3. Encourage the provision of advanced and competitive telecommunications services on the widest possible basis to businesses, institutions, and residents of the City;
4. 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;
5. 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 access and causing costs;
6. Secure fair and reasonable compensation to the City and its residents for permitting private use of the public right of way;
7. Assure that all telecommunications carriers providing facilities and/or services within the City, or passing through the City, register and comply with the ordinances, rules and regulations of the City;
8. Assure that the City can continue to fairly and responsibly protect the public health, safety and welfare of its citizens;
9. Enable the City to discharge its public trust consistent with the rapidly evolving federal and state regulatory policies, industry competition, and technological development.
B. Regulatory Fees and Compensation Not a Tax.
1. The fees and costs provided for in this Chapter, and any compensation charged and paid for use of the public rights of way provided for in this Chapter, are separate from, and in addition to, any and all federal, state, local and City taxes as may be levied, imposed or due from a telecommunications carrier, its customers or subscribers, or on account of the lease, sale, delivery or transmission of telecommunications services.
2. The City has determined that any fee imposed by this Chapter is not subject to the property tax limitations of Article XI, Sections 11 and 11b of the Oregon Constitution. These fees are not imposed on property or property owners.
3. The fees and costs provided for in this Chapter are subject to applicable federal and state laws.
C. Definitions. For the purpose of this Chapter the following terms, phrases, words and their derivations shall have the meaning given below. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The words "shall" and "will" are mandatory and "may" is permissive. Words not defined in this Chapter shall be given the meaning set forth in the Communications Policy Act of 1934, the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996, all as they have been amended from time to time. References to statutory or regulatory provisions include any amendments thereto, unless otherwise indicated. If not defined there, the words shall be given their common and ordinary meaning:
“Aboveground Facilities” - see "Overhead Facilities."
“Affiliated Interest” shall have the same meaning as ORS 759.010.
“Cable Act” shall mean the Cable Communications Policy Act of 1984, 47 U.S.C. §521, et seq.
“Cable Service” shall mean the one-way transmission to subscribers of video programming, or other programming service, and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
“City” shall mean the City of Hood River, an Oregon municipal corporation, and individuals authorized to act on the City’s behalf.
“City Council” shall mean the elected governing body of the City of Hood River, Oregon.
“City Engineer” shall mean the person designated by the City to act as the City Engineer, or his or her designees(s).
“City Property” shall mean and includes all real property owned by the City, other than public rights of way and utility easements as those are defined in this Chapter, and all property held in a proprietary capacity by the City, such as park lands, which are not subject to right of way franchising as provided in this Chapter.
“Control” or “Controlling Interest” shall mean actual working control in whatever manner exercised.
“Conduit” shall mean any structure, or portion thereof, containing one or more ducts, conduits, manholes, handholes, vaults, bolts, or other facilities used for any telegraph telephone, cable television, electrical, or communications conductors, or cable right of way, owned or controlled, in whole or in part, by one or more public utilities.
“Days” shall mean calendar days unless otherwise specified.
“Duct” shall mean a single enclosed raceway for conductors or cable.
“FCC” or “Federal Communications Commission” shall mean the federal administrative agency, or its lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers on a national level.
“Franchise” shall mean an agreement between the City and a grantee which grants a privilege to use public rights of way and utility easements within the City for a dedicated purpose and for specific compensation.
“Grantee” shall mean the person granted a franchise by the City.
“Gross Revenue” shall mean gross revenue derived by grantee from the provision of telecommunications services originating or terminating in the City on facilities covered by the franchise. For the purposes of this definition, net uncollectibles from revenue included in gross revenues may be excluded from gross revenues.
“Oregon Public Utilities Commission” or “OPUC” shall mean the statutorily created state agency in the State of Oregon, or its lawful successor, responsible for licensing, regulation and administration of certain telecommunications carriers as set forth in Oregon Law.
“Overhead Facilities” or “Aboveground Facilities” shall mean utility poles, utility facilities and telecommunications facilities above the surface of the ground, including the underground supports and foundations for such facilities.
“Person” shall mean a natural person, corporation, company, association, joint stock company or association, firm, partnership, or limited liability company, or other legal entity, private or public, whether for profit or not.
“Private Telecommunications Network” shall mean a system, including the construction, maintenance or operation of the system, for the provision of a service or any portion of a service, which is owned or operated exclusively by a person for their use and not for resale, directly or indirectly. "Private telecommunications network" includes services provided by the State of Oregon pursuant to ORS 190.240 and 283.140.
“Public Rights of Way” shall have the same meaning as in Hood River Municipal Code Section 13.52.101. For purposes of this Chapter, this definition applies only to the extent of the City’s right, title, interest or authority to grant a franchise to occupy and use the public rights of way for telecommunications facilities. "Public rights of way" shall also include utility easements as defined below.
“State” shall mean the State of Oregon.
“Telecommunications” shall mean the transmission between and among points specified by the user of information of the user's choosing, without change in the form or content of the information as sent and received.
“Telecommunications Act” shall mean the Communications Policy Act of 1934, as amended by subsequent enactments including the Telecommunications Act of 1996 (47 U.S.C. § 151 et seq.).
“Telecommunications Carrier” shall mean any provider of telecommunications services and includes every person that directly or indirectly owns, controls, operates or manages telecommunications facilities or provides telecommunications services within the City.
“Telecommunications Facilities” shall mean the plant and equipment, other than customer premises equipment, used by a telecommunications carrier to provide telecommunications services.
“Telecommunications Service” shall mean two-way switched access and transport of voice communications but does not include: (a) services provided by radio common carrier; (b) one-way transmission of television signals; (c) surveying; (d) private telecommunications networks; or (e) communications of the customer which take place on the customer side of on-premises equipment.
“Telecommunications System” - see "Telecommunications Facilities."
“Telecommunications Utility” shall have the same meaning as ORS 759.005(l).
“Underground Facilities” shall mean utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for "overhead facilities."
“Usable Space” shall mean all the space on a pole, except the portion below ground level, the 20 feet of safety clearance space above ground level and the safety clearance space between communications and power circuits as required by the National Electric Safety Code. There is a rebuttable presumption that six feet of a pole is buried below ground level.
“Utility Easement” shall mean any easement designated on a subdivision or partition map as a utility easement or public utility easement, or any easement granted to or owned by the City and acquired, established, dedicated or devoted for public utility purposes.
“Utility Facilities” shall mean the plant, equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, cable, wires, plant and equipment located under, on, or above the surface of the ground within the public right of way of the City and used or to be used for the purpose of providing utility or telecommunications services.
14.01.020 Registration of Telecommunications Carriers
A. Purpose of Registration. The purpose of registration is:
1. To assure that all telecommunications carriers who have facilities and/or provide services within the City comply with the ordinances, rules and regulations of the City.
2. To provide the City with accurate and current information concerning the telecommunications carriers who offer to provide telecommunications services within the City, or that own or operate telecommunications facilities within the City.
3. To assist the City in the enforcement of this Chapter and the collection of any City franchise fees or charges that may be due the City.
B. Registration Required. Except as provided in Subsection (4) below, all telecommunications carriers having telecommunications facilities within the corporate limits of the City, and all telecommunications carriers that offer or provide telecommunications service to customer premises within the City, shall register with the City. Copies of the appropriate application and license from the OPUC or the FCC qualify as necessary registration information. Registrants may also provide the following information:
1. The identity and legal status of the registrant, including name, address, and telephone number of the duly authorized officer, agent, or employee responsible for the accuracy of the registration information.
2. The name, address and telephone number of the duly authorized officer, agent or employee to be contacted in case of emergency.
3. A description of the registrant’s existing or proposed telecommunications facilities within the City, a description of the telecommunications facilities the registrant intends to construct, and a description of the telecommunications service that the registrant intends to offer or provide or is currently providing or offering to persons within the City.
4. Information sufficient to determine whether the transmission, origination or receipt of the telecommunications services provided, or to be provided, by the registrant constitutes an occupation or privilege subject to any business license requirements.
C. Registration Fee. Each application for registration as a telecommunications carrier shall be accompanied by a nonrefundable registration fee in an amount to be determined by resolution of the City Council.
D. Exceptions to Registration. The following telecommunications carriers are excepted from registration:
1. Telecommunications carriers that are owned and operated exclusively for their own use by the State or a political subdivision of this State.
2. A private telecommunications network, provided that the network does not occupy any public rights of way of the City.
14.01.030 Construction Standards and Permits-Exception
A. General Construction Standards. No person shall commence or continue with the construction, installation, or operation of telecommunications facilities within a public right of way except as provided in this Chapter, and consistent with all applicable codes, rules, and regulations.
B. Construction Codes. Telecommunications facilities shall be constructed, installed, operated and maintained in accordance with all applicable federal, state and local codes, rules and regulations including the National Electrical Code and the National Electrical Safety Code.
C. Construction Permits. No person shall construct or install any telecommunications facilities within a public right of way without first obtaining a construction permit as required in Hood River Municipal Code Chapter 13.36, and paying the applicable construction permit fee. No permit shall be issued for the construction or installation of telecommunications facilities within a public right of way unless:
1. The telecommunications carrier has first registered with the City pursuant to this Chapter; and, if applicable,
2. The telecommunications carrier has first applied for and received a franchise pursuant to this Chapter.
D. Exception. No permit shall be necessary for the installation of a customer specific wire (a “drop”) by a grantee where no excavation within the public right of way occurs.
14.01.040 Location of Telecommunications Facilities.
A. Location of Facilities. All facilities located within the public right of way shall be constructed, installed and located in accordance with Chapter 13.36 and the provisions in this Chapter, unless otherwise specified in a franchise agreement.
1. Whenever any existing electric utilities, cable facilities or telecommunications facilities are located underground within a public right of way of the City, a grantee with permission to occupy the same public right of way must also locate its telecommunications facilities underground.
2. Grantees occupying aboveground or overhead facilities shall relocate their facilities underground at the request of the City. Grantees shall do so at their own expense and within the time and on the conditions reasonably specified by the City. The City shall prepare an undergrounding master plan for implementation in accordance with this provision. The City may consult with any persons occupying the affected right of way in preparing the plan. Grantees shall take the plan into consideration with respect to their obligations under Section 14.01.040(5).
3. Grantee shall install its telecommunications facilities underground unless the City specifically permits attachments to utility poles or other aboveground facilities, or unless the grantee owns the poles and undergrounding is not otherwise required in this Section.
4. Grantee shall install its telecommunications facilities within an existing underground duct or conduit owned by it whenever surplus capacity exists with the duct or conduit, unless grantee demonstrates to the City Engineer’s satisfaction that such installation is not feasible.
5. A grantee with permission to install overhead facilities shall install telecommunications facilities on pole attachments to existing utility poles only, and then only if surplus space is available as determined by the City Engineer of the owner of the poles.
B. Interference with the Public Rights of Way. No grantee 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.
C. Relocation or Removal of Facilities. Except in the case of an emergency, within ninety (90) days following written notice from the City a grantee shall, at its own expense, temporarily or permanently (as specified by the City), remove, relocate, change or alter the position of any telecommunications facilities within the public rights of way whenever the City shall have determined that the removal, relocation, change or alteration is reasonably necessary for:
1. The construction, repair, maintenance or installation of any City or other public improvement in or upon the public rights of way,
2. The operations of the City or other governmental entity in or upon the public rights of way, or
3. The public interest.
D. Removal of Unauthorized Facilities. Within thirty (30) days following written notice from the City, any grantee, telecommunications carrier, or other person that owns, controls or maintains any unauthorized telecommunications system, facility or related appurtenances within the public rights of way of the City shall, at its own expense, remove the facilities or appurtenances from the public rights of way of the City. If all of the facilities and appurtenances are not removed within 30 days, or such further time as may be granted by the City, they shall be forfeited to the City. The City may notify the grantee, carrier, or other person described above that it waives forfeiture. The City may compel removal from and restoration of the public right of way and may maintain court suit against the grantee, carrier, or other person described above to require removal and restoration or the payment of the costs thereof. A telecommunications system or facility or appurtenances there to is unauthorized and subject to removal in the following circumstances:
1. One year after the expiration or termination of the grantee's telecommunications franchise, if no application to renew has been filed with the City in the case of an expiring franchise.
2. Upon abandonment of a facility within the public rights of way of the City. A facility will be considered abandoned when it is deactivated, out of service, or not used for its intended and authorized purpose for a period of one hundred and eighty (180) days or longer. A facility will not be considered abandoned if it is temporarily out of service during performance of repairs, if the facility is being replaced, if the facility is excess capacity of a current grantee who is not in default.
3. If the system or facility was constructed or installed without the appropriate prior authority at the time of installation.
4. If the system or facility was constructed or installed at a location not permitted by the grantee’s telecommunications franchise or other legally sufficient permit.
E. Coordination of Construction Activities. All grantees are required to make a good faith effort to cooperate with the City, including, but not limited to, the following:
1. By January 1 of each year, or as soon thereafter as reasonably feasible (but no later than February 15) grantees shall provide the City with a schedule of their proposed construction activities in, around, or that may affect the public rights of way. Grantees shall provide the City with changes to the schedule within 30 days of the date the proposed change is known. The schedule shall be maintained by the City Engineer and available for review and copying.
2. If requested by the City, each grantee shall meet with the City annually or as determined by the City, to schedule and coordinate construction in the public rights of way. At that time, City will provide available information on plans for local, state, and/or federal construction projects.
3. All construction locations, activities and schedules shall be coordinated, as ordered by the City Engineer, to minimize public inconvenience, disruption or damages.
14.01.050 Telecommunications Franchise
A. Franchise Required. A telecommunications franchise shall be required of any telecommunications carrier who desires to occupy public rights of way of the City.
B. Franchise Application. Any person who desires a telecommunications franchise must register as a telecommunications carrier and shall file an application with the City Recorder which includes the following information:
1. The identity of the applicant.
2. A description of the telecommunications services that are to be provided or offered over its telecommunications facilities.
3. Engineering plans, specifications and a network map in a form customarily used by the applicant of the facilities located or to be located within the public rights of way in the City, including the location and route requested for applicant’s proposed telecommunications facilities.
4. The area or areas of the City the applicant desires to serve initially and a preliminary construction schedule for build-out to the entire franchise area.
5. Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate facilities and to offer or provide telecommunications services proposed.
6. An accurate map showing the location of any existing telecommunications facilities in the City that applicant intends to use or lease.
C. Application and Review Fee.
1. Subject to applicable state law, applicant shall reimburse the City for the reasonable costs the City incurs in entering into the franchise agreement.
2. An application and review fee in an amount to be set by resolution of the City Council shall be deposited with the City as part of the application. Expenses exceeding the deposit will be billed to the applicant, or the unused portion of the deposit will be returned to the applicant following the determination granting or denying the franchise.
D. Determination by the City. The City shall issue a written determination granting or denying the application in whole or in part. If the application is denied, the written determination shall include the reasons for denial.
E. Rights Granted. No franchise granted pursuant to this Chapter shall convey any right, title or interest in the public rights of way, but shall be deemed a grant to use and occupy the public rights of way for the limited purposes and term, and upon the conditions stated in the franchise agreement.
F. Term of Grant. Unless otherwise specified in a franchise agreement, a telecommunications franchise granted hereunder shall be in effect for a term of five (5) years.
G. Franchise Territory. Unless otherwise specified in a franchise agreement, a telecommunications franchise granted under this Chapter shall be limited to specific rights of way or to a specific geographic area of the City to be served by the franchise grantee, and the public rights of way necessary to serve such areas, and may include the entire City.
H. Franchise Fee. Each franchise granted by the City is subject to the City’s right, which is expressly reserved, to fix a fair and reasonable compensation to be paid for the privileges granted; provided, nothing in this Chapter shall prohibit the City and a grantee from agreeing to the compensation to be paid. The compensation shall be subject to the specific payment terms and conditions contained in the franchise agreement and applicable state and federal laws.
I. Amendment of Grant. Conditions for amending a franchise:
1. A new application and grant shall be required of any telecommunications carrier that desires to extend or locate its telecommunications facilities in public rights of way of the City which are not included in a franchise previously granted under this Chapter.
2. If ordered by the City to locate or relocate its telecommunications facilities in public rights of way not included in a previously granted franchise, the City shall grant an amendment without further application.
3. A new application and grant shall be required of any telecommunications carrier that desires to provide a service which was not included in a franchise previously granted under this Chapter.
J. Renewal Applications. A grantee that desires to renew its franchise under this Chapter shall not less than ninety (90) days before expiration of the current agreement, file an application with the City for renewal of its franchise which shall include the following information:
1. The information required by Subsection (2) above.
2. Any information required by the franchise agreement between the City and the grantee.
K. Renewal Determinations. Within 90 days after receiving a complete renewal application, the City shall issue a written determination granting or denying the renewal application in whole or in part. If the renewal application is denied, the written determination shall include the reasons for non-renewal. Renewals shall be reviewed according to the following standards:
1. The applicant's compliance with the requirements of this Chapter and the franchise agreement.
2. Applicable federal, state, and local telecommunications laws, rules and policies.
3. Such other factors as may demonstrate that the continued grant to use the public rights of way will serve the community interest.
L. Obligation to Cure as a Condition of Renewal. No franchise shall be renewed until any ongoing violations or defaults in the grantee's performance of the agreement, or of the requirements of this Chapter, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the City.
M. Assignments or Transfers of System or Franchise. Nothing in this Section is intended to duplicate oversight provided by other public agencies having oversight authority over grantee, such as the OPUC, FCC and SEC, with respect to the transfer, assignment or disposal of ownership or control of a telecommunications system or franchise. Ownership or control of a telecommunications system or franchise may not directly or indirectly be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the grantee, by operation of law or otherwise, without the prior consent of the City, which consent shall not be unreasonably withheld or delayed, and then only on such reasonable conditions as may be prescribed in such consent. Conditions may include, but are not limited to, the following:
1. Grantee and the proposed assignee or transferee of the franchise or system shall agree, in writing, to assume and abide by all of the provisions of the franchise.
2. No transfer shall be approved unless the assignee or transferee has the legal, technical, financial and other requisite qualifications to own, hold and operate the telecommunications system pursuant to this Chapter.
3. Unless otherwise provided in a franchise agreement, the grantee shall reimburse the City for all direct and indirect fees, costs, and expenses reasonably incurred by the City in considering a request to transfer or assign a telecommunications franchise.
4. Any transfer or assignment of a telecommunications franchise, system or integral part of a system without prior approval of the City under this Section or pursuant to a franchise agreement shall be void and is cause for revocation of the franchise.
N. Revocation or Termination of Franchise. A franchise to use or occupy public rights of way of the City may be revoked for any of the following reasons:
1. Construction or operation in the City or in the public rights of way of the City without a construction permit.
2. Construction or operation at an unauthorized location.
3. Failure to comply with Subsection (13) with respect to sale, transfer or assignment of a telecommunications system or franchise.
4. Misrepresentation by or on behalf of a grantee in any application to the City.
5. Abandonment of telecommunications facilities in the public rights of way.
6. Failure to relocate or remove facilities as required in this Chapter.
7. Failure to pay taxes, compensation, fees or costs when and as due the City under this Chapter.
8. Insolvency or bankruptcy of the grantee.
9. Violation of material provisions of this Chapter.
10. Violation of the material terms of a franchise agreement.
O. Notice and Duty to Cure. In the event that the City believes that grounds exist for revocation of a franchise, the City shall give the grantee written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the grantee a reasonable period of time not exceeding thirty (30) days, to furnish evidence that:
1. Corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance;
2. Rebuts the alleged violation or noncompliance; and/or
3. It would be in the public interest to impose some penalty or sanction less than revocation.
P. Public Hearing. In the event that a grantee fails to provide evidence reasonably satisfactory to the City as provided in Subsection (15) above, the City Manager may refer the apparent violation or non-compliance to the City Council. The City Council shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter.
Q. Standards for Revocation or Lesser Sanctions. If persuaded that the grantee has violated or failed to comply with material provisions of this Chapter, or of a franchise agreement, the City Council shall determine whether to revoke the franchise, or to establish some lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors. Whether:
1. The misconduct was egregious.
2. Substantial harm resulted.
3. The violation was intentional.
4. There is a history of prior violations of the same or other requirements.
5. There is a history of overall compliance.
6. The violation was voluntarily disclosed, admitted or cured.
14.01.060 General Franchise Terms
A. Facilities. Upon request, each grantee shall provide the City with an accurate map or maps certifying the location of all telecommunications facilities within the public rights of way. Each grantee shall provide updated maps annually.
B. Damage to Grantee's Facilities. Unless directly and proximately caused by willful, intentional, or malicious acts of the City, the City shall not be liable for any damage to or loss of any telecommunications facility within the public rights of way of the City, or for any consequential losses resulting directly or indirectly therefrom, as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind in the public rights of way by or on behalf of the City, or by any other person working within the rights of way.
C. Duty to Provide Information. Within ten (10) days of a written request from the City, each grantee shall furnish the City with the following:
1. Information sufficient to demonstrate that grantee has complied with all requirements of this Chapter.
2. All books, records, maps and other documents, maintained by the grantee with respect to its facilities within the public rights of way shall be made available for inspection by the City at reasonable times and intervals.
D. Service to the City. If the City contracts for the use of telecommunication facilities, telecommunication services, installation, or maintenance from the grantee, the grantee shall charge the City the grantee's most favorable rate offered at the time of the request charged to a similar user within Oregon for a similar volume of service, subject to any of grantee's tariffs or price lists on file with the OPUC. With the City’s permission, the grantee may deduct the applicable charges from fee payments. Other terms and conditions of such services may be specified in a separate agreement between the City and grantee.
E. Compensation for City Property. If any right is granted by lease, franchise or other manner, to use and occupy City property for the installation of telecommunications facilities, the compensation to be paid for such right and use shall be fixed by the City.
F. Franchise Fee. As compensation for the benefits and privileges under its franchise, and in consideration of permission to use the City’s rights of way, the grantee shall pay a franchise fee to the City during the terms of its franchise, as follows:
1. The franchise fee shall be set in accordance with Section 14.01.050(8). If set by the City, it shall be set by resolution of the City Council.
2. The franchise fee may equal a percent of the grantee’s gross revenues derived from grantee’s provision of telecommunications services and facilities, and/or it may be based on lineal feet of right of way used, and/or any other method of calculation of the Council deems appropriate.
3. The franchise fee collectable from a telecommunication utility shall not exceed the maximum annual amount allowed under Oregon law.
4. Upon request, grantee shall provide documentation to support franchise fee calculations.
G. Other City Costs. All grantees shall, within thirty (30) days after written demand therefor, reimburse the City for all direct and indirect costs and expenses incurred by the City in connection with any modification, amendment, renewal, transfer or revocation of the franchise or any franchise agreement consistent with applicable state and federal laws.
H. Cable Franchise. Telecommunication carriers providing cable service shall be required to obtain a separate cable franchise.
I. Leased Capacity. A grantee shall have the right, without prior City approval, to offer or provide capacity or bandwidth to its customers; provided that the grantee shall notify the City that such lease or agreement has been granted to a customer or lessee.
J. Grantee Insurance. Unless otherwise provided in a franchise agreement, each grantee shall, as a condition of the grant, secure and maintain the following liability insurance policies insuring both the grantee and the City, and its elected and appointed officers, officials, agents and employees as coinsured: comprehensive general liability; automobile liability for owned, non-owned and hired vehicles; worker's compensation within statutory limits and employer's liability; comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard.
1. Unless otherwise provided in the franchise agreement, the limits of the insurance required by this Section shall be set by resolution of the City Council. The policies required shall be maintained by the grantee throughout the term of the telecommunications franchise, and such other period of time during which the grantee is operating without a franchise, or is engaged in the removal of its telecommunications facilities. Each insurance policy shall contain the following endorsement:
"It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until 90 days after receipt by the City, by registered mail, of a written notice addressed to the City Recorder of such intent to cancel or not to renew."
2. Within sixty (60) days after receipt by the City of the notice, and in no event later than thirty (30) days prior to cancellation, the grantee shall obtain and furnish to the City evidence that the grantee meets requirements of this Section.
3. As an alternative to the insurance requirements of this Section, a grantee may provide evidence of self-insurance subject to review and acceptance by the City.
K. General Indemnification. Each franchise agreement shall include, to the extent permitted by law, grantee's express undertaking to 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's fees and costs of suit or defense, arising out of, resulting from, or alleged to arise out of or result from the negligent or wrongful acts, omissions, failures to act or misconduct of the grantee or its affiliates, officers, employees, agents, contractors or subcontractors 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 Chapter or by a franchise agreement made or entered into pursuant to this Chapter.
14.01.070 Miscellaneous Provisions
A. Performance Surety. Before a franchise granted pursuant to this Chapter is effective, and as necessary thereafter, the grantee shall provide a performance bond, in form and substance acceptable to the City, as security for the full and complete performance of a franchise granted under this Chapter, including any costs, expenses, damages or loss the City pays or incurs because of any failure attributable to the grantee to comply with the codes, ordinances, rules, regulations or permits of the City. This obligation is in addition to the performance bond required by this Chapter for construction of facilities.
B. Governing Law. Any franchise granted under this Chapter is subject to the provisions of the Constitution and laws of the United States, and the State of Oregon and the ordinances and Charter of the City.
C. Written Agreement. No franchise shall be granted under this Chapter unless the agreement is in writing.
D. Nonexclusive Grant. No franchise granted under this Chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the public rights of way of the City for delivery of telecommunications services or any other purposes.
E. Severability and Preemption. If any article, section, subsection, sentence, clause, phrase, term, provision, condition, covenant or portion of this Chapter is for any reason 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 the Chapter shall not be affected as a result, but shall be deemed as a separate, distinct and independent provision and the holding shall not affect the validity of the remaining portions of this Chapter and each remaining section, subsection, sentence, clause, phrase, provision, condition, covenant and portion of this Chapter shall be valid and enforceable to the fullest extent permitted by law. In the event that federal or state laws, rules or regulations preempt a provision or limit the enforceability of a provision of this Chapter, then the provision shall be read to be preempted only to the extent required by law. In the event the federal or state law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision of this Chapter that had been preempted is no longer preempted, the provision shall then return to full force and effect, and shall thereafter be binding, without the requirement of further action on the part of the City.
F. Penalties. Any person found guilty of violating, disobeying, omitting, neglecting or refusing to comply with any of the provisions of this Chapter shall be fined not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00) for each offense. A separate and distinct offense shall be deemed committed each day on which a violation occurs.
G. Other Remedies. Nothing in this Chapter shall be construed as limiting any judicial remedies that the City may have, at law or in equity, for enforcement of this Chapter.
H. Captions. The captions to sections throughout this Chapter are intended solely to facilitate reading and reference to the sections and provisions contained in this Chapter. The captions shall not affect the meaning or interpretation of this Chapter.
I. Compliance with Laws. Any grantee under this Chapter shall comply with all federal and state laws and regulations, including regulations of any administrative agency thereof, as well as all ordinances, resolutions, rules and regulations of the City already adopted or hereafter adopted or established during the entire term any franchise granted under this Chapter, which are relevant and relate to the construction, maintenance and operation of a telecommunications system.
J. Consent. Wherever the consent of either the City or of the grantee is specifically required by this Chapter or in a franchise granted, consent will not be unreasonably withheld.
K. Application to Existing Ordinances and Agreements. To the extent that this Chapter is not in conflict with and can be implemented with existing ordinances and franchise agreements, this Chapter shall apply to all existing ordinances and franchise agreements for use of the public right of way for telecommunications.
L. Confidentiality. The City agrees to use its best efforts to preserve the confidentiality of information as requested by a grantee, to the extent permitted by the Oregon Public Records Law.
back to top