Loading...
HomeMy WebLinkAboutOrdinance 1820ORDINANCE NO. _1820_ AN ORDINANCE AMENDING CPMC TITLE 12 RELATING TO TELECOMMUNICATIONS INFRASTRUCTURE THE PEOPLE OF THE CITY OF CENTRAL POINT DO ORDAIN AS FOLLOWS: Section 1. Chapter 12.40 of the Central Point Municipal Code is hereby established as follows: Chapter 12.40 TELECOMMUNICATIONS INFRASTRUCTURE Sections: 12.40.010 Purpose and Intent. 12.40.020 Definitions. 12.40.030 Registration of Telecommunications Can•iers. 12.40.040 Construction Standards. 12.40.050 Location of Telecommunications Facilities. 12.40.060 Telecommunications Franchises. 12.40.070 General Franchise Tenns. 12.40.080 General Provisions. 12.40.010 Pm-pose and hrtent. Section I. Purpose: The purpose and intent of this Chapter is to: A: Comply with the provisions of the 1996 Telecommunications Act as they apply to local governments, telecommunications carriers and the services those can•iers offer; B: Promote competition on an 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; Pg No. Pg. 1 Ordinance No. 1820 (032201) F: Secure fair and reasonable compensation to the City and it's residents for permitting private use of the public right of way; G: Assure that all telecomnunications 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; H: Assure that the City can continue to fairly and responsibly protect the public health, safety and welfare of iYs citizens; I: Enable the City to discharge its public trust consistent with the rapidly evolving federal and state regulatory policies, industry competition and technological development. Section 2. Jurisdiction and Management of the Public Rights of Way A: The City has jurisdiction and exercises regulatory managemenC over all public rights of way within the City under authority of the City charter and state law. B: Public rights ofway include, but are not limited to, streets, roads, highways, bridges, alleys, sidewalks, trails, paths, public easements and all other public ways or areas, including the subsurface under and air space over these areas. C: The City hasjurisdictionandexercisesregulatorymanagementovereachpublicrightofway whether the City has a fee, easement, or other legal interest in the right of way. The City has jurisdiction and regulatorymanagement ofeach right ofway whether the legal interest in the right of way was obtained by grant, dedication, prescription, reservation, condemnation, annexation, foreclosure or other means. D: No person may occupy or encroach on a public right ofway without the permission of the City. The City grants permission to use rights of way by franchises and permits. E: The exercise ofjurisdiction and regulatory management over each public right ofway by the City is not official acceptance of the right of way, and does not obligate the City to maintain or repair any part of the right ofway. F: The City retains the right and privilege to cut or move any telecommunications facilities located within the public rights of way of the City, as the City may determine to be necessary, appropriate or useful in response to a public health or safety emergency. Section 3. Regulatory Fees and Compensation Not a Tax A: The fees and costs provided for in this Ordinance, and any compensation charged and paid for use of the public rights ofway provided for in this Ordinance, are separate firom, and in addition to, any and all federal, state, local, and City charges as may be levied, imposed, or Pg No. 2 Ordinance No. 1820 (032201) due from a teleconmumications carrier, its customers or subscribers, or on accowrt of the lease, sale, delivery, or transmission of telcconununications scwiccs. B: The City has determined 8iat any fcc provided tar by this Ordinance is not subject to the propertytaxlimitationsofArticleXt,Sections l l and IlbofthcOrcgonConstitntion.'these fees are not imposed on property or property owners, and these fees arc not new or increased fees. C: The fees and costs provided for in this Ordinance are subject to applicable federal and state laws. 12.40.020 Definitions. Section 4. For the purpose of this Ordinance the following teens, phrases, words and their derivations shall have the meaning given herein. 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 herein shall be given the meaning set forth in the Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Actof 1992, and the Telecommunications Act of 1996. If not defined there, the words shall be given their eonunon 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 1884, 47 U.S.C. subsection 521, et seq., as now and hereafrer amended. Cable Service- is to be defined consistent with federal laws and means the one-way and two-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 prograrming or other programming service. City-means the City of Central Point, an Oregon municipal corporation, and individuals authorized to act on the City's behalf. City Council- means the elected governing body of the City of Central Point, Oregon Control or Controlling Interest- means actual working control in whatever manner exercised. City Property- means and includes all real property owned by the City, other than public rights of way and utility easements as those are defined herein, and all property held in a proprietary capacity by the City, which are not subject to right of way franchising as provided in this Ordinance. Pg No. 3 Ordinance No. 1820 (032201) Conduit- means any structure, or portion thereof, containing one or more ducts, conduits, manholes, hndholes, bolts, or other facilities used for any telegraph, telephone, cable tclcvisioir, electrical, or communications conductors, or cable right of way, owned or controlled, in whole or in part, by one or more public utilities. Construction- means any activity in the public rights of way resulting in plrysical change thereto, including excavation or placement of structures, but excluding routine maintenance or repair of existing facilities. Days- means calendar days unless otherwise specitied. Duct- means a single enclosed raceway for conductors or cable. Emergency- has the meaning provided for in ORS 401.025. Federal Communication Commission orFCC-means the federal administrative agency, or it's lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers on a national level. Franchise- means an agreement between the City and a grantee which grants a privilege to use public right of way and utility easements within the City for a dedicated purpose and for specific compensation. Grantee- means the person to which a franchise is granted by the City. Oregon Public Utilities Commission or OPUC-means the statutorily created state agency in the State of Oregon responsible for licensing, regulation and administration of certain telecommunications carriers as set forth in Oregon Law, or it's lawful successor. Overhead or Aboveground Facilities- means utility poles, utility facilities and telecormnwrication facilities above the surface of the ground, including the underground supports and foundations for such facilities. Person- means an individual, corporation, company, association, joint stock company or association, firm, partnership, or limited liability company. Private Teleconununication Network- means 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- include, but are not limited to, streets, roads, highways, bridges, alleys, sidewalks, trails, paths, public easement, and all other public ways or areas, including the subsurface Pg No. 4 Ordinance No. 1820 (032201) under and air space over these areas. This definition applies only to the extent of the City's right, title, interest or authority to grant a franchise to occupy and use such areas for tcleconvmmications facilities. "Public rights of way" shall also include utility easements as defined below. State- means the State of Oregon. Telecommunication- means the transrnissiou between and among points speciticd by the user, of information of the user's choosing. Telecommunications Act- means the Comm~mications Policy Act of 1934, as amended by subsequent enactments including the Telecommunications Act of 1996 (47 U.S.C. subsection 151 et seq.) and as hereafrer amended. Telecommunications Carrier- means anyprovider ofteleconmmuications services and includes every person that directly or indirectly owns, controls, operates or manages telecommunications facilities within the City. Telecommunications Facilities- means the plant and equipment, other than customer premises equipment, used by a telecommunications carrier to provide telecommunications services. Telecommunications Service- means two-way switched access and transport of voice and/or video communications but does not include: a) services provided by radio conunon carrier; b) one-way transmission of television signals; c) surveying; d) private telecommunications networks; or e) communications of the customer which takes place on the customer side of on-premises equipment. Telecommunication System- see "Telecommunications Facilities" above. Telecommunication Utility- has the same meaning as ORS 759.005 (I ). Underground Facilities- means utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for "Overhead facilities". Usable Space- means all of the space on a pole, except the portion below ground level, the 20 feet of safety clearance above ground level, and the safety clearance space between communications and power circuits. There is a rebuttable presumption that six feet of a pole is buried below ground level. Utility Easement- means any easement granted to or owned by the City and acquired, established, dedicated or devoted for public utility purposes. Utility Facilities -means 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. Pg No. 5 Ordinance No. 1820 (032201) 12.40.030 Registration of Telecommunications Carriers. Section 5. Purpose: The purpose of registration is: A: To assure that all telecommunications can-iers who have facilities and/or provide services within the City comply with the ordinances, rules and regulations of the City. B: To provide the City with accurate and current information concerning the telecommunications can-iers who offer to provide telecommunications services within the City, or that own or operate telecommunications facilities within the City. C: To assist the City in the enforcement of this Ordinance and the collection of any city franchise fees or charges that maybe due the City. Section 6. Registration Required: Except as provided in Section 8 hereof, all telecommunications can-iers 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. The appropriate application and license from: a) the Oregon Public Utility Commission (PUC); or b) the Federal Communications Commission (FCC) qualify as necessary registration information. Applicants have the option of providing the following information: A. The identity and legal status of the registrant, including the name, address, and telephone number ofthe duly authorized officer, agent, or employee responsible for the accuracy ofthe registration infornation. B. The name, address, and telephone number for the duly authorized officer, agent or employee to be contacted in the case of emergency. C. A description of the registrant's existing or proposed telecommunications facilities within the City, a description of the telecommunications facilities that the registrant intends to construct, and a description of the telecommunications service that the registrant intends to offer or provide to persons, firms, businesses, or institutions within the City. D. Information sufficient to determine whether the transmission, origination or receipt of the telecommunication services provided, or to be provided by the registrant constitutes an occupation or privilege subject to any business license requirements. A copy ofthe business license or the license number must be provided. Section 7. Registration Fee: Bach 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. Pg No. 6 Ordinance No. 1820 (032201) Section 8. Exceptions to Registration: The following tclcannmunications carriers arc excepted from registration: A. Telecommunication carriers, including hrtcrnct Sewice Providers, that are owned and operated exclusively for its own use by the State or a political subdivision of this State. B. A private telecommunications network. Provided that sack network does not occupy any public rights-of--way of the City. 12.40.040 Construction Standards. Section 9. General: 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 sections 12 through 28, and with all applicable codes, rules, and relndations. Section 10. Construction Codes: Telecommunications facilities shall be constucted, 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. Section 11. Constuction Permits: No person shall construct or install any telecommunications facilities within the City of Central Point without first obtaining a construction permit, and paying the construction permit fee established in section 15 of this Ordinance. No permit shall be issued for the constuction or installation of telecommunications facilities: A. Unless the teleconnnunications carrier has first filed a registation statement with the City pursuant to Sections 5 through 8 of this Ordinance; and if applicable, B. Unless the telecommunications carrierhas fu-st applied for and received a fi•anchise pursuant to Sections 29 through 46 of this Ordinance. C. Unless the telecommunications carrier has satisfied the requirements of the Central Point Municipal Code. Section 12. Permit Applications: Applications for pernits to construct telecommunications facilities shall be submitted upon forns to provided by the City and shall be accompanied by drawings, plans and specifications in sufficient detail to demonstrate: A. That the facilities will be constructed in accordance with all applicable codes, rules and regulations. B. That the facilities will be constructed in accordance with the franchise agreement. C. The location and route ofall facilities to be installed aboveground or on existingutility poles. D. The location and route of all new facilities on or in the public rights of way to be located Pg No. 7 Ordinance No. 1820 (032201) under the sur-face of the ground, including the line and grade proposed for the burial at all points along the route which are within the public rights ofway. Existing facilities shall be differentiated on the plans from new construction. E. The location ofall ofapplicanYs existingundcrground utilities, conduits, ducts, pipes, mains and installations which are within the public rights of way along the underground route proposed by the applicant. A cross section shall be provided showing new or existing facilities in relation to the street, curb, sidewalk or right of way. F. The conshuctionmethods to be employed for protection of existing structures, fixtures end facilities within or adjacent to the public rights of way, and description of any proposes to temporarily or permanently remove or relocate. Section 13. Applicant's Verification: All permit applications shall be accompanied by the verification of a registered professional engineer, or other qualified and duly authorized representative of the applicant, that the drawings, plans and specifications submitted with the application comply with applicable technical codes, rules and regulations. Section 14. Construction Schedule: All permit applications shall be accompanied by a written construction schedule, which shall include a deadline for completion of construction. The construction schedule is subject to approval by the Planning, Building and Public Works Departments. Section 15. Construction Permit Fee: Unless otherwise provided in a franchise agreement, prior to issuance of a construction permit, the applicant shall pay a permit fee in an amount to be determined by resolution of the City Council. Such fees shall be designed to defray the costs of city administration of the requirements of this ordinance. Section 16. Issuance of Pernit: If satisfied that the applications, plans and documents submitted comply with all requirements of this Ordinance and the franchise agreement, the Planning, Building and Public Works Departments shall issue a pernit authorizing construction ofthe facilities, subject to such further conditions, restrictions or regulations affecting the time, place and manner of performing the work as they deem necessary or appropriate. Section l7. NotieeofConstruction:Exceptinthecaseofanemergency,thepernitteeshallnotify the Public Works Department not less than two (2) working days in advance of any excavation or construction in the public rights of way. Utility locates by the Oregon Utility Notification Center shall be completed prior to notification of the Public Works Department. Section 18. Compliance with Pernit: All construction practices and activities shall be in accordance with the pernit and approved final plans and specifications for the facilities. The Planning, Building and Public Works Departments and thein-epresentatives shall beprovided access to the work site and such further information as they may require to ensure compliance with such requirements. Pg No. 8 Ordinance No. 1820 (032201) Section 19. Noncomplying Work: Subject to the notice requirements in Section 27, all work which does not comply with the permit, the approved or corrected plans and specifications for the work, or the requirements of this Ordinance, shall be removed at the sole expense of the permittce . The City is authorized to stop work in order to assure compliance with the provision of this Ordinance. Section 20. CompletionofConstr~ction:Thepermitteeshallpro~mptlycompleteallconshuction activities so as to minimize disruption of the city's rights of way and other public and private property. All construction work within city rights of way, including restoration, must be completed within 120 days of the date of issuance of the construction permit unless an extension or an alternate schedule has been approved by the appropriate city official as contemplated by section 14. Section 21. As-Built Drawings: If requested by the City, the peimittce shall furnish the City with two (2) complete sets of plans drawn to scale and certified to the City as accurately depicting the location of all telecommunications facilities pursuant to the permit. These plans shall be submitted to the Public Works Director or designee within sixty (60) days after completion of construction, in a fornat mutually acceptable to the pernittee and the City. Section 22. Restoration of Public Rights of Way and City Property: A. When a pernittee, 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 Public Works Director. B. If weather or other conditions do not permit the complete restoration required by this Section, the pernittee shall temporarily restore the affected rights of way or property. Such temporary restoration shall be at the permittee's sole expense and the pennittee 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 nay be subject to approval by the City. C. If the pernittee fails to restore rights of way or property in good condition, the City shall give the pernittee written notice and provide pennittee a reasonable period of time not exceeding thirty (30) days to restore the rights of way or property. If, after said notice, the pernittee 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 pennittee. D. A pernittee or other acting in its behalf shall use suitable ban-icades, 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. Pg No. 9 Ordinance No. 1820 (032201) Section 23. Performance and Completion Bond: Unless othc~wisc provided in a franchise agreement, a performance bond or other form of surety acceptable to the City equal to at Icast l00% of the estimated cost of constructing pernittee's telecommunications f<~cilities within the public rights of way of the City, shall be provided before construction is commenced. A. The surety shall remain inforceuntilsixty(60)daysaftersubstantialcompletionofthework, as determined in writing by the City, including restoration of public rights of way and other property affected by the construction. B. The surety shall guarantee, to the satisfaction of the City: 1. Timely completion of construction; 2. Consriuction is in compliance with applicable plans, permits, technical codes and standards; 3. Proper location of the facilities as specified by the City; 4. Restoration of the public rights of way and other property affected by the construction; and 5. Timely payment and satisfaction of all claims, demands or liens for labor, material, or services provided in connection with the work. 12.40.050 Location of Telecomimmications Facilities. Sectiom 24. Location of Facilities: All facilities located within the public right of way shall be constructed, installed and located in accordance with the following terns and conditions, unless otherwise specified in a franchise agreement: A. Whenever all new or existing electric utilities, cable facilities or telecommunications facilities are located or relocated 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. B. Whenever all new or existing electric utilities, cable facilities or telecommunications facilities are located or relocated underground within a public right of way of the City, a grantee that currently occupies the same public right of way shall relocate its facilities underground concurrently with the other affected utilities to minimize disruption of the public right of way, absent extraordinary circumstances or undue hardship as determined by the City and consistent with applicable state and federal law. Section 25. Interference with the Public Rights of Way: No grantee may locate or maintain its Pg No. 10 Ordinance No. 1820 (032201) telecommunications facilities so as to unreasonably interfere with the use ofthcpublic rights ofway 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. Section 26. Relocation or Removal of Facilities: Except in the case of an emergency, within ninety (90) days following the written notice by the City, a grantee shall, at no expense to Grantor, temporarily or permanently remove, relocate, change or alter the position ofany telecommunications facilities within the public rights ofway whenever the City shall have determined that such removal, relocation, change or alteration is reasonably necessary for: A. The construction, repair, maintenance or installation ofany city or other public improvement in or upon the public rights ofway. B. "fhe operations of the City or other governnental entity in or upon the public rights of way. C. The public interest. Section 27. Removal ofUnauthorized Facilities: Within thirty (30) days following written notice from the City, any grantee, telecommunications car-ier, or other person that owns, controls or maintains anymrauthorized teleeommunicationssystem, facility or related appurtenances within the public rights ofway of the City shall, at its own expense, remove such facilities and/or appurtenances from the public rights of way of the City. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances: A. One year after the expiration or termination of the grantee's telecommunications franchise. B. 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 ninety (90) days or longer. A facility will not be considered abandoned if it is temporarily out of service during performance of repairs or if the facility is being replaced.. C. If the system or facility was constructed or installed without the appropriate prior authority at the time of installation. D. 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. Section 28. Coordination of Construction Activities: A11 grantees are required to make a good faith effort to cooperate with the City. A. By January 1 of each year, grantees shall provide the City with a schedule of their proposed construction activities in, around or that may affect the public rights ofway. Pg No. t I Ordinance No. 1820 (032201) B. 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 tune, the City will provide available infommation on plans for local, state, and/or federal construction projects. C. Ali construction locations, activities and schedules shall be coordinated, as ordered by the Public Works Director of designee, to minimize public inconvenience, disruption or damages. 12.40.060 Telecommunications Franchise. Section 29. Telecommunications Franchise: A telecommunications franchise shall be required of any telecommunications carrier who desires to occupy public rights of way of the City. Section 30. Application: Any person that desires a telecommunications franchise must register as a telecommunications carrier and shall file an application with the Central Point Planning Department which includes the following information: A. The identity of the applicant. B. A description of the telecommunications services that are to be offered or provided by the applicant over its telecounnunication facilities. C. 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. D. The area or areas of the City the applicant desires to serve and a preliminary construction schedule for build-out to the entire franchised area. E. Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities and to offer or provide the telecommunications services proposed. F. An accurate map showing the location of any existing telecommunications facilities in the City that applicant intends to use or lease. Section 31. Application and Review Fee: A. Subject to applicable state law, applicant shall reimburse the City for such reasonable costs as the City incurs in entering into the franchise agreement. B. An application and review fee of $1,000 shall be deposited with the City as parC of the Pg No. 12 Ordinance No. 1820 (032201) application filed pursuant to Section 30 above. 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 fi'anchisc. Additional Building, Public Works and Planning Department fees may be required by the Central Point Municipal Code. Section 32. Determination by the City: The City shall issue a written determination granting or denying the application in whole or part. If the application is denied, thewritten dctennination shall include the reasons for denial. Section 33. Rights Granted: No fi-anchisc granted pursuant to this Ordinance 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. Section 34. Tern of Grant: Unless otherwise specified in a franchise agreement, a telecommunications franchise granted hereunder shall be in affect for a term of five years. Section 35. Franchise Territory: Unless otherwise specified in a fianchise agreement, a telecouununicationsfraechise granted hereunder shall be limited to a specific geographic area ofthe 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. Section 36. Franchise Fee: Each franchise granted by the City is subject to the City's light, which is expressly reserved, to fix a fair and reasonable compensation to be paid for the privileges granted; provided, nothing in this Ordinance shall prohibit the City and a grantee from agreeing to the compensation to be paid. The compensation shall be subject to the specific payment teens and conditions contained in the franchise agreement and applicable state and federal laws. Section 37. Amendment of Grant: Conditions for amending a franchise: A. Anew 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 Ordinance. B. 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. C. Anew 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 Ordinance. Section 38. Renewal Applications: A grantee that desires to renew its franchise under this Ordinance shall, not less than 180 days before expiration ofthe current agreement, file an application with the City for renewal of its franchise which shall include the following information: Pg No. 13 Ordinance No. 1820 (032201) A. The information required pursuant to Section 30 ofthis Ordinance. B. Any information required pursuant to the franchise agreement between the City and tltc grantee. Seetion39. Renewal Determinations:Within90daysafterreccivingacontpletcapplicatiouunder Section 38 hereof, the City shall issue a written determination granting or denying the renewal application in whole orin part, applying thefollowiug standards. Ifthcrenewal application is denied, the written determination shall include the reasons for non-renewal. A. The financial and technical ability of the applicant. B. The legal ability of the applicant. C. The continuing capacity of the public rights of way to accommodate the applicant's existing and proposed facilities. D. The applicant's compliance with the requirements of this Ordinance and the franchise agreement. E. Applicable federal, state and local telecommunications laws, rules and policies. F. Such other factors as may demonstrate that the continued grant to use the public rights of way will serve the community interest. Section 40. 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 ofthis Ordinance, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the City. Section 4l. Assignments or TransfersofSystemorFranchise:Ownershiporcontrolofamajority interest in a telecommunication 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 proper consent ofthe City, which consent shall not be unreasonably withheld or delayed, and then only on such reasonable conditions as may be prescribed in such consent. A. 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. B. 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 Ordinance. C. Unless otherwise provided in a franchise agreement, the ln•antee 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. Pg No. 14 Ordinance No. 1820 (032201) D. Any trvrsfer or assigmnent ofa tcleconvnwrications fi~anchise, system or integral part ofa system without prior approval of the City under this Section or pursuant to a ti~anchise agreement shall be void and is cause for revocation of the fi~anchisc. Section 42. Revocation or Termination of Franchise: A frandrise to use or occupy public rights of way of the City may be revoked for the following reasons: A. Construction or operation in the City or in the public rights of way of the City without a construction permit. B. Construction or operation at an unauthorised location. C. Failure to comply with Section 41 herein with respect to sale, transfer or assignment of a telecommunications system or franchise. D. Misrepresentation by or on behalf of a grantee in any application to the City. B. Abandonment of telecorrununications facilities in the public rights of way. F. Failure to relocate or remove facilities as required in this Ordinance. G. Failure to pay taxes, compensation, fees or costs when and as due the City under this ordinance. H. Insolvency or bankruptcy of the grantee. I. Violation of material provisions of this Ordinance. J. Violation of the material teens of a franchise agreement. Section 43. 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 fiarnish evidence that: A. Corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance; B. Rebuts the alleged violation or noncompliance; and/or C. It would be in the public interest to impose some penalty or sanction less than revocation. Section 44. Public Hearing: In the event that a grantee fails to provide evidence reasonably Pg No. 15 Ordinance No. 1820 (032201) satisfactory to the City as provided ii1 Sectio~i 43 hereof, the City Administrator may refer the apparent violation ornon-compliancetothcCityCouncil.'I'hcCityCouncilshall providethegrantee with notice and a reasonable opportunity to be heard conccrniitg the matter. Section 45. Standards for Revocation or Lesser Sanctions: If persuaded that the grantee has violated or failed to comply with the material provisions of this Ordinance, 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 iiariire, circumstances, extent, and gravity of the violation as reflected by one or more of the following factors. Whether: A. The misconduct was egregious. B. Substantial harm resulted. C. The violation was intentional. D. There is a history of prior violations of the same or other requirements. E. There is a history of overall compliance. F. The violation was voluntarily disclosed, admitted or cured. Section 46. Other City Costs: All grantees shall, within thirty (30) days after written demand therefor, reimburse the City for all reasonable direct and indirect costs and expenses incurred by the City in connection with any modification, amendment, renewal or transfer of the franchise or any franchise agreement consistent with applicable state and federal laws. 12.40.070 General Franchise Tenns. Section 47. Facilities: Upon request, each grantee shall provide the City with an accurate map or maps certifying the location ofall telecommunication facilities within the public rights ofway. Each grantee will provide updated maps annually. Section 48. Damage to Grantee's Facilities: Unless directly and proximately caused by willful, intentional or malicious acts by the City, the City shall not be liable for any damage to or loss of any teleconununications facility within the public rights of way 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 for any consequential losses resulting directly or indirectly therefrom. Section 49. Duty to Provide Information: Within ten (10) business days of a written request from the City, each grantee shall furnish the City with the following: A. Information sufficient to demonstrate that grantee has complied with all requirements of this Ordinance. Pg No. 16 Ordinance No. 1820 (032201) B. All books, records, maps, and otherdocumeuts, maintained by the grantee with respect to its facilities within the public rights of way shall be made available fa' inspection by the City at reasonable times and intervals. Section 50. 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 similar users within Oregon for similar volume of service, subject to any of grantee's tarifts 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 iu a separate agreement between the City and grantee. Section 51. Compensation for City Property: If any right is granted, by (ease, fi-anchise, 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. Section 52. Cable Franchise: Telecommunicationcarriersprovidingcableseiviceshallbesubject to the cable franchise requirements listed in the Central Point Municipal Code. Section 53. Leased Capacity: A grantee shall have the right, without prior City approval, to offer or provide capacity or bandwidth to its customer; provided that the grantee shall notify the City that such lease or agreement has been granted to a customer of lessee. Section 54. 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: A. Comprehensive general liability insurance with limits not less than I. Three Million Dollars ($3,000,000) for bodily injury to death to each person. 2. Three Million Dollars ($3,000,000) for property damage resulting from any one accident; and, 3. Three Million Dollars ($3,000,000) for all other types of liability. B. Automobile liability for owned, non-owned and hired vehicles with a limit of One Million Dollars ($1,000,000) for each person and Three Million Dollars ($3,000,000) for each accident. C. Worker's compensation within statutorylimits and employer's liability insurance with limits not less than One Million Dollars ($1,000,000). Pg No. 17 Ordinance No. 1820 (032201) D. Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits not less than Three Million Dollars ($3,000,000). E. The liability insurance policies required by this Section 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 hereunder, or is engaged in the removal of telecommunications facilities. Each such insurance policy shall contain the following endorsement: "It is herebyunderstood 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 Administrator of such intent to cancel or not to renew." F. Within sixty (60) days after receipt by the City of said notice and in no event later than thirty (30) days prior to such cancellation, the grantee shall obtain and furnish to the City evidence that the grantee meets the requirements of this Section. G. As an alternative to the insurance requirements contained herein, a grantee may provide evidence ofself-insurance subject to review and acceptance by the City. Section 55. 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, careless 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 Ordinance of by a franchise agreement made or entered pursuant to this Ordinance. Section 56. Performance Surety: Before a franchise granted pursuant to this Ordinance is effective, and as necessary thereafter, the grantee shall provide a performance bond, in forni and substance acceptable to the City, as security for the full and complete performance of a franchise granted under this Ordinance, including any costs, expenses, damages or loss the City pays or incurs because of any failure atriibutable to the grantee to comply with the codes, ordinances, rules, regulations or permits of the City. This obligation is in addition to the performance surety required by Section 23 for construction of facilities. 12.40.080 General Provisions. Section 57. Governing Law: Any franchise granted under this Ordinance 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. Pg No. 18 Ordinance No. 1820 (032201) Section 58. Written Agreement No franchise shall be granted hereunder unless the agreement is in writing. Section 59. Nonexclusive GranC: No ti~anchisc granted under this Ordinance shall confer any exclusive right, privilege, license or franchise to occupy or use the public rights of way of the City for delivery of teleconvmunications services or any other purpose. Section 60. Severability and Preemption: If any article, section, subsection, sentence, clause, phrase, term, provision, condition, covenant or portion of this Ordinance is for any reason held to be invalid or unenforceable by any court of competent jurisdiction, or superceded by state or federal legislation, rules, regcilation or decision, the remainder o f the Ordinance shall not be affected thereby but shall be deemed as a separate, distinct and independent provision, and such holding shall not affect the validity ofthe remaining portions hereof, and each remaining section, subsection, sentence, clause, phrase, provision, condition, covenant and portion of this Ordinance 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 enforceabil ity of a provision of this Ordinance, then the provision shall be read to be preempted only to the extent required by the law. In the event such. In the event such federal or state law, rule, or regulation is subsequently repealed rescinded, amended or otherwise changed so that the provision hereof that had been preempted is no longer preempted, such provision shall be thereupon return to full force and effect, and shall thereafter be binding, without the requirement of further action on the part of the City. Section 61. Penalties: Any person found guilty of violating ,disobeying, omitting, neglecting or refusing to comply with any provisions of this Ordinance shall be fined not less than One Hundred Dollars ($100.00) nor more than OneThousand Dollars ($1,000.00) for each offense. A separate and distinct offense shall be deemed committed each day on which a violation occurs. Section 62. Other Remedies: Nothing in this Ordinance shall be construed as limiting any judicial remedies that the City may have, at law or in equity, for enforcement of this Ordinance. Section 63. Captions: The captions to sections throughout this Ordinance are intended solely to facilitate reading and reference to the sections and provisions contained herein. Such captions shall not affect the meaning or interpretation of this Ordinance. Section 64. Compliance with Laws: Any grantee wider this Ordinance 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 ofthe Cityheretofore orhereafter adopted or established during the entire term of any franchise granted under this Ordinance, which are relevant and relate to the construction, maintenance and operation of a telecommunication system. Section 65. Consent: Whenever the consent of either the City or of the grantee is specifically required bythis Ordinance or in afranchise granted, such consent will not be unreasonablywithheld. Section 66. Application to Existing Ordinance and Agreements: To the extent thatthis Ordinance Pg No. 19 Ordinance No. 1820 (032201) is not in conflict with and can be implemented with existing ordinance and franchise agreements, this Ordinance shall apply to all existing ordinance and franchise agreements for use oPthe public right of way for telecommunications. Section 67. Confidentiality: The City agrees to use its best effin is to preserve the confidentiality of information as requested by a grantee, to the extent pei7nitted by the Oregon Pnblic Records Law. Passed by the Council and signed by me in authentication of its passage this ~c3 c ay of ~_~~, 2001. ~~ a % ~C~ ~~ _- =~ -~}~ ~, Mayor Bill Walton ATTES City Representative ~~ Approved by me this ~ day of-1~'> 2001. tYlayor Bill Walton Pg No. 20 Ordinance No. 1820 (032201)