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2804 Effective Date: January 14, 2019 ORDINANCE 2804 AN ORDINANCE OF THE CITY OF LAKE OSWEGO AMENDING THE LAKE OSWEGO CODE TO ADD CHAPTER 51 ("UTILITIES FACILITIES IN PUBLIC RIGHTS OF WAY") PROVIDING FOR REGULATION OF PUBLIC RIGHTS OF WAY, AND ESTABLISHING A LICENSING PROCEDURE FOR ALL UTILITIES CONDUCTING BUSINESS IN THE RIGHTS OF WAY WHEREAS, the City of Lake Oswego has jurisdiction and exercises regulatory management over all public rights-of-way within the City under authority of the Oregon Constitution, the City Charter, and state law; and; WHEREAS, public rights-of-way are valuable community assets for transportation, public utility facilities, telecommunication utility facilities, and the delivery of essential services to the Lake Oswego community while also serving an aesthetic function to set the community character of the City; and WHEREAS,the City desires and intends to manage the public rights-of-way on behalf of the public in such a way that all activities are completed per City specifications,to protect its interests,and ensure the safety of the public; and WHEREAS, prior to this Ordinance,the City generally granted individually-negotiated franchises to each utility using the City's rights-of-way to provide public utility service and telecommunication utility service (collectively, "utility services"), which franchises set forth the terms of use and compensation to be paid for such use; and WHEREAS, the City determined that it can more effectively, efficiently, fairly, and uniformly manage the public rights-of-way and provide consistent standards for utility services use of the public rights- of-way through licenses rather than franchises; NOW THEREFORE, THE CITY OF LAKE OSWEGO ORDAINS AS FOLLOWS: Section 1. Lake Oswego City Code is amended to add Chapter 51 "Utility Facilities in Public Rights-of-Way" to read as follows: CHAPTER 51 UTILITIES IN PUBLIC RIGHTS OF WAY ARTICLE 51.01 In General 51.01.010 Title. The ordinance codified in this Chapter shall be known and may be referenced as the "Utility Facilities in Public Rights-of-Way" Ordinance. 51.01.020 Purpose and Intent. The purpose of this Chapter is to: 1. Permit and manage reasonable access to the public rights-of-way of the City for utility services purposes and conserve the limited physical capacity, integrity,and longevity of those public rights-of- way held in trust by the City consistent with applicable state and federal law; 2. Secure fair and reasonable compensation to the City and its residents,who have invested substantial public funds to acquire, build, and maintain the public rights-of-way and City-owned structures and improvements therein, for permitting use of the public rights-of-way by persons who generate revenue by placing utility facilities therein and charging residents, businesses,visitors, and others for services delivered by those facilities; 3. Assure that all persons owning or operating utility facilities or providing utility services within the City shall register and comply with the ordinances, rules, policies,and other regulations of the City, as well as with applicable provisions of state and federal law; 4. Assure that the City can continue to fairly and responsibly protect the public health, safety, and welfare of its residents; 5. Encourage the provision of advanced and competitive utility services on the widest possible basis to the residents, businesses and visitors within the City's territorial and jurisdictional boundaries, consistent with applicable provisions of state and federal law. 51.01.030 Jurisdiction and Management of the Public Rights-of-Way. 1. The City has jurisdiction and exercises regulatory management over all public rights-of-way within the City under authority of the Oregon Constitution, the City charter, and state law. 2. The City has jurisdiction and exercises regulatory management over each public right-of-way,whether the City has a fee, easement, or any other legal interest in such public right-of-way, and whether the legal interest in the public right-of-way was obtained by grant, dedication, prescription, reservation, condemnation, annexation,foreclosure, or any other means. 3. The exercise of jurisdiction and regulatory management over a public right-of-way by the City is not official acceptance of such public right-of-way, and does not obligate the City to maintain or repair any part of such right-of-way. 4. The provisions of this Chapter are subject to and will be applied consistent with applicable state and federal laws, rules and regulations, and shall be interpreted to be consistent with such laws, rules, and regulations. Nothing in this Chapter (1) intended to preempt any state or federal law, rule, or regulation; and (2)shall be interpreted, deemed, or applied in manner that authorizes or requires the City, its council, commissions, boards, officials, directors, managers, employees, agents, contractors, or volunteers to preempt or violate applicable state or federal laws, rules, or regulations. 51.01.040 Regulatory Fees and Compensation Not a Tax. 1. The fees and costs provided for in this Chapter, and any compensation charged and paid for the use of the public rights-of-way provided for in this Chapter, are separate from, and in addition to, any and all other federal, state, county and/or City charges, including without limitation any permit fee ORDINANCE 2804 - Page 2 of 20 or any other generally applicable fee, tax, or charge on the business, occupation, property, or income, as may be levied, imposed, or due from a utility service provider, its customers or subscribers, or on account of the lease, sale, delivery, or transmission of utility services. 2. The City has determined that any fee, cost, or other charge provided for by this Chapter is not subject to the property tax limitations of Article XI, Sections 11 and 11b of the Oregon Constitution. These fees or taxes are not imposed on property or property owners. 3. The fees, costs, and other charges provided for in this Chapter are subject to applicable federal and state laws. 51.01.050 Definitions. For the purpose of this Chapter,the following words,terms, phrases, and their derivations shall have the meanings given below unless the context indicates otherwise. When not inconsistent with the context, words used in the present tense include the future tense,words in the plural number include the singular number, and words in the singular include the plural number. The word "shall" is always mandatory and not merely directory. Cable service is to be defined consistent with section 522(6) of Title 47 in the United States Code, as may be amended or superseded, and means "the one-way transmission to subscribers of (i) video programming, or (ii) 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 means the City of Lake Oswego, Oregon, a municipal corporation, and its governing authority. In addition, the City may refer to as all the territory within its corporate boundaries and as such may change from time to time. City Council means the City Council of the City of Lake Oswego. City facilities means City or publicly-owned structures or equipment located within the public rights- of-way or public easement used for governmental purposes including, but not limited to, fiber-optic cable, street lights,traffic signals, sanitary sewer, storm sewer, or water infrastructure such as related pipes, manholes, catch basins, wires, conduit, valves,vaults, and appurtenances. Communications services means any service provided for the purpose of transmission of information including, but not limited to, voice, video or data, without regard to the transmission protocol employed, whether or not the transmission medium is owned by the provider itself. Communications services includes all forms of telephone services and voice, video, data, or information transport, but does not include: (1) cable service; (2) open video system service, as defined in section 76 of Title 47 of the Code of Federal Regulations; (3) over-the-air radio or television broadcasting to the public-at- large from facilities licensed by the Federal Communications Commission or any successor thereto; (4) public communications systems; and (5) direct-to-home satellite service within the meaning of Section 602 of the Telecommunications Act. License means the authorization granted by the City to a utility services operator pursuant to this Chapter. ORDINANCE 2804 - Page 3 of 20 Person means and includes any individual,firm,sole proprietorship,corporation,company, partnership, co-partnership,joint-stock company, trust, limited liability company, association, local service district, governmental entity, or other organization, including any natural person or any other legal entity. Public communications system means any system owned or operated by a government entity or entities that are primarily for use for internal communications or communications with other government entities, and includes services provided by the state of Oregon pursuant to Oregon Revised Statutes sections 190.240 and 283.140. A public communications system does not include any system used for sale or resale, including trade, barter, or other exchange of value, of communications services or capacity on the system, directly or indirectly, to any person. Public utility easement means the space in, upon, above, along, across, over, or under an easement for the construction, reconstruction, operation, maintenance, inspection and repair of utility facilities. A public utility easement does not include an easement solely for the construction, reconstruction, operation, maintenance, inspection, and/or repair of City facilities, or where the proposed use by the utility services operator is inconsistent with the terms of any easement, right-of-way, or other legal right for use or occupancy granted to the City. Public rights-of-way means and includes, but is not limited to, the space in, upon, above, along, across, over, or under the public streets, roads, highways, lanes, courts, ways, alleys, boulevards, bridges, trails, paths, sidewalks, bicycle lanes, and all other public ways or areas, including the subsurface under and air space over these areas, but does not include parks, parkland, open space tracts, water quality tracts, or other City-owned property.This definition applies only to the extent of the City's right, title, interest and authority to grant a license to occupy and use such areas for utility facilities. State means the state of Oregon. Streets or City streets means the entire width between the right-of-way lines of a local street, collector, or arterial capable of providing the principal means of access to abutting property." Utility facility or facility means any physical component of a utility service system,including but not limited to the poles, pipes, main-lines, conduits, ducts, cables, wires, transmitters, plants, equipment, and other facilities, located within, on, along, under, or above the public rights-of-way, any portion of which is used or designed to be used to deliver,transmit, or otherwise provide utility service. Utility service operator or operator means any person who owns, places, operates, or maintains a utility facility within the City, except for the City of Lake Oswego. Utility service means the provision, by means of utility facilities located within, on, along, under, or above the public rights-of-way, whether or not such facilities are owned by the utility service provider, of electricity, natural gas,communications services, cable services, water, sewer, or storm sewer to or from customers within the corporate boundaries of the City, or the transmission of any of these services through the City whether or not customers within the City are served by those transmissions. "Utility service" shall not include the provision of such services by the City of Lake Oswego. ORDINANCE 2804 - Page 4 of 20 Work means the construction, demolition, installation, replacement, repair, maintenance, or relocation of any utility facility, including but not limited to any excavation and restoration required in association with such construction, demolition, installation, replacement, repair, maintenance, or relocation. 51.01.060 Annual Registration. 1. Registration Required. Every person that owns utility facilities in the City; and every person that uses utility facilities in the City to provide utility service, regardless of whether the person owns the utility facilities used to provide the utility services or not, and regardless of whether customers within the City are served by those facilities or not, shall register with the City prior to deploying any utility facilities within the public rights-of-way or providing any utility services. Every operator within the City as of the effective date of this Chapter shall register within forty-five (45) days of the effective date of this Chapter. 2. Annual Registration.After registering with the City under 51.01.060 Subsection 1 of this section,the registrant shall, by December 31 of each year, file with the City a new registration form if it intends to deploy or operate utility facilities or provide utility service at any time in the following calendar year. 3. Registration Application. The registration shall be on an application form provided by the City and shall be accompanied by any additional documents required by the City to identify the registrant and its legal status, describe the type of utility services provided or to be provided by the registrant, and list the facilities over which the utility services will be provided. 4. Registration Fee. Each application for registration shall be accompanied by a nonrefundable registration fee in an amount to be determined by resolution of the City Council enough to fully recover all the City's costs of administering the registration program. 51.01.070 Licenses. 1. Every person who owns, controls, or uses utility facilities in the public rights-of-way must have at all times a license from the City. Every person shall obtain a license prior to conducting any work in the public rights-of-way, placing any utility facilities in the public rights-of-way,or using any utility facilities in the rights-of-way. The license requirement shall not apply to those utility operators with an unexpired franchise agreement in effect and in good standing as of the effective date of this Chapter for the remainder of the term of that franchise agreement. 2. Every person that owns, controls,or uses utility facilities in the public rights-of-way as of the effective date of this Chapter shall apply for a license from the City within forty-five (45) days of the later of: (1)the effective date of this Chapter, or(2)the expiration of a valid franchise from the City. 3. License Application. The license application shall be on a form provided by the City, and shall be accompanied by any additional documents required by the City to identify the applicant, its legal status, including its authorization to do business in the State of Oregon, a description of the type of utility service provided or to be provided by the applicant, and the facilities over which the utility service will be provided, and other information that the City determines is necessary to determine the applicant's ability to comply with the terms of this Chapter. Subject to any restrictions in state or ORDINANCE 2804 - Page 5 of 20 federal law,the City Engineer may from time-to-time and without further authorization from the City Council publish or otherwise make publicly available any additional or different application requirements as the City Engineer finds necessary or appropriate for processing applications, which shall be effective immediately upon publication. 4. License Application Fee.The application shall be accompanied by a nonrefundable application fee set by resolution of the City Council in an amount sufficient to fully recover all of the City's costs related to processing the application for the license. 5. Determination by City.The City shall issue, within a reasonable time after having received a duly filed application, a written determination granting or denying the license in whole or in part. If the license is denied,the written determination shall include the reasons for denial.The license shall be evaluated based upon the provisions of this Chapter, the continuing capacity of the public rights-of-way to accommodate the applicant's proposed utility facilities and the applicable federal, state and local laws, rules, regulations and policies. 6. Rights Granted. a. A license granted under this Chapter authorizes and permits the licensee to construct, place, maintain, and operate utility facilities in the public rights-of-way for the term of the license, subject to the provisions of City code, rules, regulations and polices, and other applicable provisions of state and federal law. b. Each license granted under this Chapter authorizes only those utility facilities or utility services applied for by the applicant and approved by the City. The City may approve the provision of multiple services in one license. c. A license granted under this Chapter shall be personal to the licensee and may not be assigned,sublicensed,or transferred, in whole or in part,except as permitted by this Chapter. d. A license granted under this Chapter does not grant, convey, create, or vest in a licensee any real property interest in land, including any fee, leasehold interest, or easement, and does not convey equitable or legal title in the public rights-of-way. The license is subject to all recorded deeds, easements, dedications, conditions, covenants, restrictions, encumbrances and claims of title of record that may affect the public rights-of-way. A license granted under this Chapter is not a warranty of title. Licensee expressly acknowledges and agrees to enter on to and use the licensed public rights-of-way in its "as-is and with all faults" condition. The City makes no representations or warranties whatsoever, whether express or implied, as to the public rights-of-way's condition or suitability for the licensee's use. By its acceptance of the license, the licensee expressly acknowledges and agrees that neither the City nor its agents have made, and the City expressly disclaims, any representations or warranties whatsoever, whether express or implied, with respect to the physical, structural or environmental condition of the public rights-of-way, the present or future suitability of the public rights-of-way for the licensee's use. ORDINANCE 2804 - Page 6 of 20 e. The issuance of a license does not constitute a waiver or bar to the City's exercise of any governmental right or power, including without limitation the City's police powers and regulatory powers, regardless of whether such powers existed before or after the license is issued. 7. Term of License. Subject to the termination provisions in 51.01.070 Subsection 13 of this section,the license granted pursuant to this Chapter will remain in effect for a term of five (5)years. 8. License Nonexclusive. No license granted pursuant to this section shall confer any exclusive right, privilege, license, or franchise to occupy or use the public rights-of-way for delivery of utility services or any other purpose.The City expressly reserves the right to grant licenses,franchises,or other rights to other persons, as well as the City's right to use the public rights-of-way, for similar or different purposes. 9. Reservation of City Rights. The City reserves all rights, title, and interest in its public rights-of-way. A license granted under this Chapter does not prevent the City from exercising any of its rights, including without limitation grading, paving, repairing, or altering any public rights-of-way,constructing, laying down, repairing, relocating, or removing City facilities or establishing any other public work, utility, or improvement of any kind, including repairs, replacement, or removal of any City facilities. a. If any of licensee's utility facilities interfere with the construction, repair, replacement, alteration or removal of any public rights-of-way, public work, City utility, City improvement, improvement that implements a City urban renewal agency project, or City facility, except those providing utility services in competition with a licensee, licensee's facilities shall be removed or relocated as provided in this Chapter, in a manner acceptable to the City and consistent with industry standard engineering and safety codes. 10. Multiple Services. a. An operator that provides,transmits,or allows the provision or transmission of utility services and other services over its facilities is subject to the license and public right-of-way fee requirements of this Chapter for the portion of the facilities and extent of utility services delivered over those facilities. b. An operator that provides or transmits more than one utility service over its facilities is not required to obtain a separate license or franchise for each utility service, provided that it gives notice to the City of each utility service provided or transmitted and pays the applicable public rights-of-way fee for each utility service. c. An operator is not required to pay the license or public rights-of-way fee owed to the City by a third-party using a utility operator's facilities. 11. Transfer or Assignment. A licensee shall obtain the written consent of the City prior to the transfer, sublicense, or assignment of a license, which consent shall not unreasonably be withheld, unless the licensee demonstrates to the City that state or federal law specifically prohibits the City from requiring ORDINANCE 2804 - Page 7 of 20 its prior written consent.A transfer,sublicense,or assignment will only be authorized if the proposed transferee or assignee is authorized under all applicable federal, state, and local laws, to own or operate the utility system and the transfer or assignment is approved by all agencies or organizations required or authorized under federal, state, and local to approve such transfer, sublicense, or assignment. a. If a license is transferred, sublicensed, or assigned, the transferee, sublicensee, or assignee shall become responsible for fulfilling all the obligations under the license with respect to all facilities of the licensee at the time of transfer, sublicensee, or assignment. A transfer or assignment of a license does not extend the term of the license. Without limiting any other rights the City may have to condition its consent, the City may condition its consent on any such transfer, sublicense, or assignment on the transferee, sublicensee, or assignee's written agreement to assume all licensee's obligations under the license. b. Notwithstanding anything in this section to the contrary, a licensee may, by written notice to the City, assign all its rights under a license to an entity that acquires all or substantially all the licensee's assets in the market in which the City is located. 12. Renewal. At least ninety (90), but no more than one hundred eighty (180), calendar days before the expiration of a license granted under this section,a licensee seeking renewal of its license shall submit a license application to the City, including all information and fees required in this chapter as may be supplemented by the City Engineer.The City shall review the application and grant or deny the license within sixty (60) days after the application is duly filed. If the City determines that the licensee is in violation of the terms of this Chapter at the time it submits its application,the City may require, by a written notice, that the licensee cure the violation or submit a detailed plan to cure the violation within a reasonable period of time, as determined by the City, before the City will consider the application or grant the license. 13. Termination. a. Revocation or Termination of a License.The City Council may terminate or revoke the license granted pursuant to this Chapter for any of the following reasons: i. Violation of any of the provisions of this Chapter; ii. Violation of any provision of the license; iii. Misrepresentation in a license application; iv. Failure to pay taxes, compensation, fees, or costs due the City after final determination of the taxes, compensation,fees, or costs; v. Failure to restore the public rights-of-way after construction as required by this Chapter or other applicable state and local laws, ordinances, rules, and regulations; vi. Failure to comply with technical, safety,and engineering standards related to work in the public rights-of-way; or vii. Failure to obtain or maintain any and all licenses, permits, certifications, and other authorizations required by state or federal law for the placement, maintenance, or operation of the utility facilities. ORDINANCE 2804 - Page 8 of 20 b. Standards for Revocation or Termination. In determining whether termination, revocation,or some other sanction is appropriate,the following factors shall be considered: i. Whether the violation was intentional; ii. The egregiousness of the violation; iii. The harm that resulted; iv. The operator's history of compliance; and v. The operator's cooperation in discovering, admitting, and curing the violation. 14. Notice and Cure. The City shall give the operator written notice of any apparent violations before revoking or terminating a license.The notice shall include a statement of the nature and general facts of the violation or noncompliance and provide a reasonable time of not to exceed thirty(30) days for the operator to demonstrate that the operator has remained in compliance, that the utility operator 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 or revocation. If the operator is in the process of curing a violation or noncompliance, the operator must demonstrate that it acted promptly and continues to actively work toward compliance. If the operator does not respond within the reasonable time stated in the notice, the City Engineer shall refer the matter to the City Council, which shall provide a duly noticed public hearing to determine whether the license shall be terminated or revoked. 15. Franchise Agreements. If the public interest warrants, as determined by the City in its sole and absolute discretion,the City and operator may enter into a written franchise agreement that includes terms that clarify, enhance, expand, waive, or vary the provisions of this Chapter, consistent with applicable state and federal law. The franchise may conflict with the terms of this Chapter with the review and approval of the City Council.The franchise shall be subject to the provisions of this Chapter to the extent such provisions are not in conflict with any such franchise. In the event of a conflict between the express provisions of a franchise and this Chapter,the franchise shall control. 51.01.080 Construction and Restoration. 1. City Engineer's Policies, Standards, Specifications, and Other Guidelines. The City Council authorizes the City Engineer to develop, amend, and publish or otherwise make publicly available any policies, standards, specifications, and other guidelines for the location, design, and management, and operation of facilities in public rights-of-way subject to this Chapter. All such policies, standards, specifications, and other guidelines: (1) must be consistent, and not in conflict with, the provisions state, federal, and local law, which includes this Chapter 51; and (2) shall be effective upon their publication; provided, however, that any applications submitted prior to publication shall be subject to the policies, standards, specifications, and other guidelines in effect when the submittal occurred. 2. Pre-Construction Approval. Prior to the commencement of any construction, extension, or relocation of any of licensee's facilities upon, over, under,or across any of the streets, highways, or other public rights-of-way within the jurisdiction of the City, the licensee shall advise the City's Engineering Department in writing of the location and shall obtain from the City Engineer written approval prior to commencement of such work. In evaluating such request,the City Engineer may consider whether the proposed facilities comply with any applicable law,which includes without limitation any policies, standards, specifications, or other guidelines adopted by the City Engineer pursuant to this Chapter. ORDINANCE 2804 - Page 9 of 20 Not less than forty-eight(48) hours before commencement of any work that might affect City utilities, licensee shall give contact the Oregon Utility Notification Center for the purpose of utility location. The location of all such facilities shall be at places approved by the City.All work done by or for licensee shall be in compliance with the applicable rules, regulations, ordinances, policies, guidelines, standards, specifications, or orders of the City then in effect. 3. Construction Permits. No person shall perform any work on utility facilities within the public rights- of-way without first obtaining all required permits. The City shall not issue a permit for the construction, installation, maintenance or repair of utility facilities unless the utility operator of the facilities has registered and applied for and received the license required by this Chapter, or has a current franchise with the City, and all applicable fees have been paid. 4. Applications for Permits.Applications for permits to construct utility facilities shall be submitted upon forms to be provided by the City and shall comply with LOC 42.04.110 and be accompanied by drawings, plans, and specifications in sufficient detail to demonstrate: a. That the facilities will be constructed in accordance with all applicable laws, codes, rules, and regulations. b. The location and route of all utility facilities to be installed aboveground or on existing utility poles and, if the private utility operator owns the existing utility poles, a comprehensive summary, including ownership and structural condition,of any and all infrastructure currently attached to the pole. Unless approved in writing by the City Engineer,the construction of new utility poles is prohibited. An existing utility pole that is damaged or failing may be repaired or replaced with a new utility pole of substantially similar dimensions and materials. c. The location and route of all utility facilities on or in the public rights-of-way to be located under the surface of the ground, including the line and grade proposed for the burial at all points along the route that are within the public rights-of-way. Applicant's existing utility facilities shall be differentiated on the plans from new construction. A cross section shall be provided showing new or existing utility facilities in relation to the street, curb, sidewalk, or other public rights-of-way. d. The construction methods to be employed for protection of existing structures, fixtures, and facilities within or adjacent to the public rights-of-way, and description of any improvements that applicant proposes to temporarily or permanently remove or relocate. 5. All permit applications shall be accompanied by the verification of a 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. Permit applications shall be accompanied by a written construction schedule, which shall include an estimated start date and a deadline for completion of construction. The construction schedule is subject to approval by the Engineering Department. Subject to any restrictions in state or federal law, the City Engineer may from time-to-time and without further authorization from the City Council publish or otherwise make publicly available any additional or different application requirements as the City Engineer finds ORDINANCE 2804 - Page 10 of 20 necessary or appropriate for processing applications, which shall be effective immediately upon publication. 6. Prior to issuance of a street opening permit, the applicant shall pay a permit fee in the amount determined by resolution of the City Council. 7. If satisfied that the application, plans, and documents submitted comply with all requirements of this Chapter, the Engineering Department shall issue a permit authorizing construction of the utility facilities, subject to such further conditions, restrictions or regulations affecting the time, place and manner of performing the work as they may deem necessary or appropriate (but only to the extent permitted by applicable state and federal law). 8. Except in the case of an emergency that poses an imminent threat to public health or safety and/or injury to persons or property, the permittee shall notify the Engineering Department not less than two (2) business days in advance of any excavation or construction in the public rights-of-way. 9. All construction practices and activities shall be in accordance with the permit and approved final plans and specifications for the utility facilities. The Engineering Department and its representatives shall be provided access to the work site and such further information as they may require to ensure compliance with such requirements. 10. All construction practices and activities shall be in accordance with the permit and approved final plans and specifications for the utility facilities. The City and its representatives shall be provided access to the work site and such further information as they may require to ensure compliance with this requirement. 11. All work that does not comply with the permit, the approved, or corrected plans and specifications for the work, or the requirements of this Chapter(including any policies, standards, specifications, or other guidelines adopted by the City Engineer pursuant to this Chapter),shall be removed or corrected at the sole expense of the permittee. The City is authorized to issue stop work orders in order to assure compliance. 12. The permittee shall promptly complete all construction activities in compliance with all applicable laws and in a manner designed to avoid unnecessary disruption and minimize unavoidable disruption of the City public rights-of-way and other public and provide property. All construction work within the public rights-of-way, including without limitation any restoration work, must be completed within one hundred twenty(120) days of the date the construction permit is issued unless the City Engineer has approved an extension or an alternate schedule. 13. Injury to Persons or Property. An operator shall preserve and protect from injury or damage other operators' facilities in the public rights-of-way, the public using the public rights-of-way and any adjoining property,and take other necessary measures to protect persons and property, including but not limited to buildings, walls, fences,trees, and other facilities that may be subject to damage from the permitted work. An operator shall (1) use suitable barricades, flags, flagging attendants, lights, flares, and other measures as required for the safety of all members of the general public; (2)comply ORDINANCE 2804 - Page 11 of 20 with all applicable Americans with Disabilities Act requirements; and (3) comply with all the requirements of the Manual on Uniform Traffic Control Devices (MUTCD). 14. Restoration. An operator shall be responsible for all injury to persons or damage to public or private property resulting from its failure to properly protect people and property and to carry out the work regardless of whether the work is performed by an operator or performed by an independent contractor performing the work on behalf of the operator. a. When an operator,or any person acting on its behalf,does any work in or affecting any public rights-of-way,it shall,at its own expense,promptly restore such ways or property to the same or better condition as existed before the work was undertaken, in accordance with applicable federal, state and local laws, codes, ordinances, rules, and regulations, unless otherwise directed by the City. b. If weather or other conditions beyond the operator's control do not permit the complete restoration required by the City, the operator shall temporarily restore the affected public rights-of-way or property.Such temporary restoration shall be at the operator's sole expense and the operator 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 shall be subject to approval by the City. c. If the operator fails to restore public rights-of-way or property as required in this Chapter,the City shall give the operator written notice and provide a period of time not less than ten (10) days and not exceeding thirty (30) days to restore the public rights-of-way or property. If, after said notice,the operator fails to restore the public rights-of-way or property as required in this Chapter, the City may cause such restoration to be made at the expense of the operator. In cases where the City believes that an emergency or threat to public safety exists, it may act without notice to and at the expense of the operator. Upon receipt of an invoice from the City with reasonable supporting documentation for the costs incurred,the operator shall reimburse the City within thirty(30) days for the costs the City incurred. 15. Inspection. Every operator's facilities shall be subject to the right of periodic inspection by the City or its agents to determine compliance with the provisions of this Chapter and all other applicable state and City laws, codes, ordinances, rules, and regulations. Every operator shall reasonably cooperate with the City in permitting the inspection of utility facilities in a timely manner after request by the City. The operator shall perform all testing, or permit the City or its agents to perform any testing at the operator's expense, required by the City to determine that the installation of the operator's facilities and the restoration of the public rights-of-way comply with the terms of this Chapter and applicable state and City laws, codes, ordinances, rules, and regulations. 16. Coordination of Construction.All operators shall make a good faith effort to both cooperate with and coordinate their construction schedules with those of the City and other users of the public rights-of- way. ORDINANCE 2804 - Page 12 of 20 a. Prior to January 1 of each year, operators shall provide the City with a schedule of known proposed construction activities for that year in, around, or that may affect the public rights- of-way and any City facilities. b. At the City's request, operators shall meet with the City annually, or as determined by the City,to schedule and coordinate construction in the public rights-of-way. c. All construction locations, activities, and schedules within the public rights-of-way shall be coordinated as ordered by the City to minimize public inconvenience, disruption, and damages to persons and property. 51.01.090 Location of Facilities. 1. Location of Facilities. Unless otherwise agreed to in writing by the City,whenever any existing electric utilities,cable facilities,or communications facilities are located underground within a public right-of- way of the City, an operator with permission to occupy the same public right-of-way shall locate its facilities underground at its own expense. a. Whenever all new or existing electric utilities, cable facilities or communication facilities are located or relocated underground within a public right-of-way of the City, an operator that currently occupies the same public right-of-way must relocate its facilities underground concurrently with the other affected utilities to minimize disruption of the public rights-of- way, absent extraordinary circumstances or undue hardship as determined by the City and consistent with applicable state and federal law. b. The requirements in this section do not apply to antennas, pedestals, cabinets, or other above-ground equipment of any utility provider. 2. Interference with the Public Rights-of-Way. No operator or other person may locate or maintain facilities so as to interfere with the use of the public rights-of-way by the City, by the general public, or by other persons duly authorized to use or be present in or on the public rights-of-way. All use of the public rights-of-way shall be consistent with City codes, ordinances, rules, and regulations,which includes without limitation any policies, standards, specifications, and other guidelines adopted by the City Engineer pursuant to this Chapter. 3. Relocation of Utility Facilities. a. When requested to do so in writing by the City, an operator shall, at no cost to the City, temporarily or permanently remove, relocate, change, or alter the position of any utility facility within a public right-of-way, including relocation of aerial facilities underground, except as such facilities are not required to be located underground pursuant to 51.01.090 Subsection lb. b. Nothing herein shall be deemed to preclude the operator from requesting reimbursement or compensation from a third party, pursuant to applicable laws, regulations, tariffs, or agreements. However,the operator shall timely comply with the requirements of this section regardless of whether it has requested or received such reimbursement or compensation. ORDINANCE 2804 - Page 13 of 20 c. The City shall coordinate the schedule for relocation of utility facilities and based on such effort, shall provide written notice of the time by which the operator must remove, relocate, change, alter, or underground its facilities. If an operator fails to remove, relocate, change, alter or underground any utility facility as requested by the City and by the date established by the City, the operator shall pay all costs incurred by the City due to such failure, including but not limited to costs related to project delays, and the City may cause, using qualified workers in accordance with applicable state and federal laws and regulations, the utility facility to be removed, relocated, changed, altered or undergrounded at the operator's sole expense. Upon receipt of an invoice from the City with reasonable supporting documentation, the operator shall reimburse the City within thirty(30) days for the costs the City incurred. 4. Removal of Unauthorized Facilities. a. Unless otherwise agreed to in writing by the City, within thirty (30) days following written notice from the City or such other time agreed to in writing,an operator and any other person that owns,controls or maintains any abandoned or unauthorized utility facility within a public right-of-way shall, at its own expense, remove the facility and restore the public right-of-way to City standards. b. A utility system or facility is unauthorized under any of the following circumstances: i. The utility facility is outside the scope of authority granted by the City under the license, franchise or other written agreement.This includes facilities that were never licensed or franchised and facilities that were once licensed or franchised but for which the license or franchise has expired or been terminated.This does not include any facility for which the City has provided written authorization for abandonment in place. ii. The facility has been abandoned and the City has not provided written authorization for abandonment in place.A facility is abandoned if it is not in use and is not planned for further use. A facility will be presumed abandoned if it is not used for a period of one (1)year. An operator may attempt to overcome this presumption by presenting plans for future use of the facility to the City,which will determine application of the presumption in its sole discretion. iii. The utility facility is improperly constructed or installed or is in a location not permitted by the construction permit, license,franchise, or this Chapter. iv. The operator is in violation of a material provision of this Chapter and fails to cure such violation within thirty (30) days of the City sending written notice of such violation, unless the City extends such time period in writing. 5. Removal by City. a. The City retains the right and privilege to cut or move the facilities of any operator or similar entity located within the public rights-of-way of the City, without notice, as the City may determine to be necessary, appropriate or useful in response to a public health or safety emergency. The City will use qualified personnel or contractors consistent with applicable ORDINANCE 2804 - Page 14 of 20 state and federal safety laws and regulations to the extent reasonably practicable without impeding the City's response to the emergency. b. If the operator fails to remove any facility when required to do so under this Chapter,the City may remove the facility using qualified personnel or contractors consistent with applicable state and federal safety laws and regulations,and the operator 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. Upon receipt of an invoice from the City with reasonable supporting documentation,the operator shall reimburse the City for the costs the City incurred within thirty(30)days.The obligation to remove shall survive the termination of the license or franchise. c. The City is not liable to any operator for any damage to utility facilities, or for any consequential losses resulting directly or indirectly from any damage, caused by the City's actions, or its contractor, in removing, relocating, altering, or undergrounding the facilities, unless such damage arises directly from the City's sole active negligence or willful misconduct. 6. Engineering Designs and Plans. The operator shall provide the City with as-built plans or system maps of their facilities, upon request for the purpose of design of other City infrastructure or to confirm existing conditions. 51.01.100 Leased Capacity. 1. An operator may lease or otherwise provide capacity on or in its systems to others ("lessees"), provided that (1) the operator provides the City with the name and business address of any lessee; (2) the operator requires that all lessees have obtained proper authority, in the form of a permit, license, or franchise from the City before leasing capacity on or in its facilities. (3) the use of the operator's capacity does not require or involve any additional equipment owned or operated by the lessee to be installed on the facility; and (4)the operator maintains control over and responsibility for the facility at all times. Nothing in Section 51.01.100 relieves or lessens the restrictions or requirements of this Chapter. 51.01.110 Maintenance. 1. Every operator shall install and maintain all facilities in a manner that complies with applicable federal, state and local laws, rules, regulations,and policies.The operator shall, at its own expense, repair and maintain facilities from time to time as may be necessary to accomplish this purpose. 2. If, after written notice from the City of the need for repair or maintenance, an operator fails to repair and maintain facilities as requested by the City and by the date established by the City, the City may perform such repair or maintenance using qualified personnel or contractors at the operator's sole expense. Upon receipt of a detailed invoice from the City, the operator shall reimburse the City for the costs the City incurred within thirty (30) days 51.01.120 Vacation of Public Rights-of-Way. 1. If the City vacates any public rights-of-way, or portion thereof, that an operator uses, the operator shall,at its own expense, remove its facilities from the public rights-of-way unless: (1)the City reserves ORDINANCE 2804 - Page 15 of 20 a public utility easement, which the City shall make a reasonable effort to do provided that it is practicable to do so and there is no expense to the City; or (2) the operator obtains an easement for its facilities. 2. If the operator fails to remove its facilities within thirty(30)days after a public right-of-way is vacated, or as otherwise directed or agreed to in writing by the City, the City may remove the facilities using qualified workers in accordance with state and federal laws and regulations at the operator's sole expense. Upon receipt of a detailed invoice from the City, the operator shall reimburse the City for the costs the City incurred within thirty (30) days. 51.01.130 Public Rights-of-Way Fee. 1. Every person that owns, controls, or uses facilities in the City's public rights-of-way, regardless of whether customers within the City are served by those facilities, must pay a fee as determined by resolution of the City Council; 2. Unless otherwise agreed to in writing by the City, the rights-of-way fee shall be paid quarterly, in arrears, for each quarter during the term of the license within thirty (30) days after the end of each calendar quarter and shall be accompanied by an accounting of gross revenues, if applicable, and a calculation of the amount payable. The operator shall pay simple interest at a rate of nine percent (9%) or the highest rate permitted under applicable law per year for any payment made after the due date. 3. The calculation of the rights-of-way fee required by this section shall be subject to all applicable limitations imposed by federal or state law. 4. The City reserves the right to enact other fees and taxes applicable to the operators subject to this Chapter. Unless expressly permitted by the City in enacting such fee or tax,or required by applicable state or federal law, no operator may deduct, offset or otherwise reduce or avoid the obligation to pay any lawfully enacted fees or taxes based on the payment of the rights-of-way fee or any other fees required by this Chapter. 51.01.140 Audits. 1. The City may audit any operator at any time.The City will make a written request for information and the operator must comply with the request within 30 days of receipt of the City's written request, or such other time as agreed in writing. 2. Every provider of utility service shall furnish the City with information enough to demonstrate that the provider is in compliance with all the requirements of this Chapter and its franchise agreement, if any, including but not limited to payment of any applicable registration fee, rights-of-way fee or franchise fee. 3. Every operator shall make available for inspection by the City at reasonable times and intervals all maps, records, books, diagrams, plans and other documents maintained by the operator with respect to its facilities within the public rights-of-way or public utility easements. Access shall be provided within the City unless prior arrangement for access elsewhere has been made with the City. ORDINANCE 2804 - Page 16 of 20 4. If the City's audit of the books, records and other documents or information of the operator or utility service provider demonstrates that the operator or provider has underpaid the rights-of-way fee or franchise fee by three percent(3%) or more in any one (1)year,the operator shall reimburse the City for the cost of the audit, in addition to any interest owed as provided by this Chapter or as specified in a franchise agreement. 5. Any underpayment, including any interest or audit cost reimbursement, shall be paid within thirty (30) days of the City's notice to the utility service provider of such underpayment. 51.01.150 Insurance and Indemnification. 1. Insurance. a. All operators shall maintain in full force and effect the following liability insurance policies that protect the operator and the City, as well as the City's officers, agents, and employees, with limits not less than the amounts established by City Council resolution: i. Comprehensive general liability insurance ii. Motor vehicle liability insurance for owned, non-owned and hired vehicles. iii. Worker's compensation insurance. b. The limits of the insurance shall exceed those established by the City Council resolution to the extent necessary to least equal the maximum limits of liability imposed on municipalities of the state of Oregon.The insurance shall be without prejudice to coverage otherwise existing and shall name, or the certificate of insurance shall name, as additional insureds the City and its officers, agents and employees. The coverage must apply as to claims between insureds on the policy. The operator shall provide the City thirty (30) days prior written notice of any cancellation or material alteration of said insurance. If the insurance is canceled or materially altered, the operator shall maintain continuous uninterrupted coverage in the terms and amounts required.The operator may self-insure,or keep in force a self-insured retention plus insurance,for any or all the above coverage. c. The operator shall at all times maintain on file with the City a current certificate of insurance, or proof of self-insurance acceptable to the City, certifying the coverage required above. 2. Indemnification. a. To the fullest extent permitted by law, each operator shall defend, indemnify and hold harmless the City and its officers, employees, agents and representatives from and against any and all liability, causes of action, claims, damages, losses,judgments and other costs and expenses, including attorney fees and costs of suit or defense (at both the trial and appeal level, whether or not a trial or appeal ever takes place) that may be asserted by any person or entity in any way arising out of, resulting from, during or in connection with, or alleged to arise out of or result from the negligent, careless or wrongful acts, omissions,failure to act or other misconduct of the utility operator or its affiliates, officers, employees, agents, contractors, subcontractors or lessees in the construction, operation, maintenance, repair or removal of its facilities, and in providing or offering utility services over the facilities,whether such acts or omissions are authorized, allowed or prohibited by this Chapter or by a franchise ORDINANCE 2804 - Page 17 of 20 agreement. The acceptance of a license under Section 50.01.070 of this Chapter shall constitute such an agreement by the applicant whether the same is expressed or not. b. Every operator shall also indemnify the City for any damages, claims, additional costs or expenses assessed against or payable by the City arising out of or resulting, directly or indirectly, from the operator's failure to remove or relocate any of its facilities in the public rights-of-way or easements in a timely manner, except to the extent the operator's failure arises directly from the City's negligence or willful misconduct. 51.01.160 Compliance. 1. Every operator shall comply with all applicable federal and state laws and regulations, including regulations of any administrative agency thereof, as well as all applicable ordinances, resolutions, rules and regulations of the City, heretofore or hereafter adopted or established during the term of any license granted under this Chapter. 51.01.170 Confidential/Proprietary Information. 1. If any person is required by this Chapter to provide books, records, maps or information to the City that the person reasonably believes to be confidential or proprietary, the City shall take reasonable steps to protect the confidential or proprietary nature of the books, records, maps or information to the extent permitted by the Oregon Public Records Law, provided that all documents are clearly marked as confidential by the person at the time of disclosure to the City. The City shall not be required to incur any costs to protect such documents, other than the City's routine internal procedures for complying with the Oregon Public Records Law. 51.01.180 City Permission Requirement. 1. No person may occupy or encroach on a public right-of-way without the permission of the City. The City grants permission to use public rights-of-way by franchises, licenses, and permits. 51.01.190 Obligations of the City. 1. The exercise of jurisdiction and regulatory control over a public right-of-way 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 public right-of-way. 51.01.200 Violations; Penalties. 1. In addition to any other remedy provided in this Chapter, a violation of any provision of this Chapter is a civil violation and shall be enforced under the provisions of Article 34.04 of this Code. Each day that the violation exists or continues shall constitute a separate violation. Each civil violation shall be punishable by a fine of not less than one hundred dollars ($100) and not more than one thousand dollars ($1,000). 2. Before issuing the first citation for a violation,the City shall mail written notice of the violation to the operator providing a reasonable time (no less than twenty(20)and no more than forty(40)days from the date of the notice) for the operator to remedy the violation to the City's satisfaction. The notice shall be mailed to the operator's address as listed in the operator's registration under Section 51.01.060 of this Chapter. If the operator has no current registration, no notice shall be required. ORDINANCE 2804 - Page 18 of 20 3. The rights, remedies and penalties provided in this Chapter are cumulative,are not mutually exclusive, and are in addition to any other rights, remedies and penalties available to the City under any other provision of law, including without limitation any judicial or other remedy at law or in equity for enforcement of this Chapter. 51.01.210 Severability and Preemption. 1. The provisions of this Chapter shall be interpreted to be consistent with applicable federal and state law, and shall be interpreted,to the extent possible,to cover only matters not preempted by federal or state law. 2. If any article, section, subsection, sentence, clause, phrase, term, provision, condition, covenant or portion of this Chapter is for any reason declared or held to be invalid or unenforceable by any court of competent jurisdiction or superseded by state or federal legislation, rules, regulations or decision, the remainder of this Chapter shall not be affected thereby but shall be deemed as a separate,distinct and independent provision, and such holding shall not affect the validity of the remaining portions hereof, and each remaining section, subsection, sentence, clause, phrase,term, provision, condition, covenant or portion of this Chapter shall be valid and enforceable to the fullest extent permitted by law. In the event any provision is preempted by federal or state laws, rules or regulations, the provision 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, amended or otherwise changed to end the preemption, such provision shall there upon return to full force and effect and shall thereafter be binding without further action by the City. 51.01.220 Application to Existing Agreements. To the extent that this Chapter is not in conflict with and can be implemented consistent with existing franchise agreements, this Chapter shall apply to all existing franchise agreements granted to operators by the City. Section 2. Declaration of Emergency; Effective Date. The City Council makes the following findings: Certain provisions of a recent Federal Communications Commission ruling relating to local government permitting for "small cell" wireless communications providers will become effective on January 14, 2019. This Ordinance 2804 establishes the regulatory framework under which permits for small cell wireless facilities can occur consistent with the pending federal requirements. This ordinance also authorizes adoption of local regulations pertaining to design,size, location,and aesthetic requirements for such facilities, which local regulations must be in place by January 14, 2019 to pertain to any permit applications submitted as of that date. Because January 14, 2019 is a deadline imposed by an agency of the federal government,an emergency ordinance is authorized under Section 34.B.ii of the Lake Oswego Charter. Further, absent the regulations established or authorized by this Ordinance 2804 being in effect on January 14, 2019, a regulatory inadequacy would exist that could result in facilities installed within the public right-of-way without meeting ORDINANCE 2804 - Page 19 of 20 would exist that could result in facilities installed within the public right-of-way without meeting standards necessary to mitigate negative impacts both to public property within the right-of-way and adjacent private property. As a result, an emergency ordinance is also authorized by Section 34.b.i of the Lake Oswego Charter. in both cases the circumstances creating the emergency cannot be adequately addressed by adoption of a regular ordinance, which would not take effect until at least 30 days following enactment. Based upon these findings, and as authorized by Section 34 of the Lake Oswego Charter, this Ordinance 2804 shall take effect on January 14, 2019. Enacted at the regular meeting of the City Council of the City of Lake Oswego held on the 2nd day of January, 2019. AYES: Mayor Studebaker, O'Neill, LaMotte, Nguyen, Wendland, Kohlhoff, Manz NOES: None ABSTAIN: None EXCUSED: None Kent Studebaker, Mayor ATTEST: _ Anne-Marie Simpson, City Recorder APPROVED AS TO FORM: /ae-L'z't David Powell, City Attorney ORDINANCE 2804- Page 20 of 20