HomeMy WebLinkAboutOrdinance 6105 12/06/2004
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ORDINANCE NO. 6105
AN ORDINANCE AMENDING THE SPRINGFIELD MUNICIPAL CODE TO PROVIDE
FOR LICENSING OF UTILITIES, IMPOSING A PRIVILEGE TAX UPON UTILITIES DOING
BUSINESS IN THE CITY, AMENDING SECTIONS 4.600 THROUGH 4.716, ADDING
SECTIONS 4.800 THROUGH 4.807, AND SETTING AN EFFECTIVE DATE
THE COMMON COUNCIL OF THE CITY OF SPRINGFIELD ORDAINS AS FOLLOWS:
Section 1. Findings.
A. The Springfield City Charter grants to the City all powers that the constitutions, statutes
and common law of the United States and of the State of Oregon now or hereafter
expressly or impliedly grant or allow.
B. Among the powers granted to the City is the power to impose privilege taxes for the
purpose of raising revenue. Such privilege taxes may include taxes for the privilege of
conducting business within the City.
C.
The State of Oregon has established limits on the amount of compensation that the City is
authorized to receive in consideration of allowing certain uses of the public ways. In
particular ORS 221.515 limits the amount of compensation the City may receive from
certain defined telecommunications carriers, and Section 221.450 limits the amount of
compensation the City may receive from certain other utilities if not franchised.
D. The power of the City to levy taxes for the privilege of conducting business within the
City limits is a power separate and independent from the limitations on the power of
taxation set forth in ORS 221.450 or 221.515.
E. The Council has determined that basing compensation from utilities upon physical
presence in the public ways no longer reasonably reflects the nature of the business
activities of the utility industry.
F. The Council has determined that a more appropriate and equitable mechanism for
addressing the activities of the utility industry is the basis of doing business - either by
providing services to citizens of the City or by using facilities located within the limits of
the City to provide services to others.
G. The Council determines that it is reasonable and appropriate to impose taxation upon the.
utility industry for the benefit of the general funds and operations of the City, in
consideration of the affect such utilities have upon the city and its property.
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Section 2. Sections 4.600 through 4.716 of the Springfield Municipal Code, as amended, are
further amended to read as follows:
UTILITY LICENSE
4.600 Definitions. Terms used in this Chapter shall have the following meanings:
(1) Affiliate: A person that (directly or indirectly) owns or controls, is owned or
controlled by, or is under common ownership or control with another person.
(2)Cable Acts: The Cable Communications Policy Act of 1984, as amended by the Cable
Television Consumer Protection and Competition Act of 1992, as amended by The
Telecommunications Act of 1996 and as hereafter amended,
(3) Cable operator: An entity providing or offering to provide "cable service" within the
City as that term is defined in the Cable Acts.
(4) Cable service: Shall have the same meaning as defined in the Cable Acts.
(5) FCC or Federal Communications Commission: The Federal administrative agency, or
lawful successor, authorized to regulate and oversee telecommunications carriers, services and
providers on a national level.
(6) Licensee: Any entity required to be licensed hereunder, whether or not granted a
license.
(7) Person: Any individual or entity engaging in activities regulated by this Chapter.
(8) Public street: Any highway, street, alley or other public right-of-way dedicated for
motor vehicle travel under the jurisdiction and control of the City.
(9) Public Utility easement: Any easement granted to the City, acquired, established,
dedicated or devoted for access for public utility facilities for construction, operations, and
maintenance purposes.
(10) Public way: Includes all public streets owned by the City and public utility easements
granted to the City, as those terms are defined herein, but only to the extent of the City's right,
title, interest or authority to grant permission to occupy and use such streets and easements.
(11) Tax Administrator: the Finance Director of the City or designee.
(14) Telecommunications carrier: Includes every person that directly or indirectly owns,
controls, operates or manages plant, equipment or property within the City, used or to be used for
the purpose of offering telecommunications service.
(13) Telecommunications facilities or system: The plant, equipment and property
including, but not limited to, cables, wires, conduits, ducts, pedestals, antennae, electronics and
other appurtenances used or to be used to transmit, receive, distribute, provide or offer telec-
ommunications service,
(14) Telecommunications provider: Includes every person who provides
telecommunications service over telecommunications facilities.
(15) Telecommunications service: The providing or offering for rent, sale or lease, or in
exchange for other value received, of the transmittal of voice, data, image, graphic and video
programming or any other information between or among points by wire, cable, fiber optics,
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laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed
transmission medium.
(16) Utility: any public utility as defined in ORS 757.005(1), any telecommunications
utility as defined in ORS 759.005(1), any telecommunications carrier, telecommunications
provider or other entity providing telecommunications services,
(17) Utility facilities: The plant, equipment and property including, but not limited to, the
poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or
above the surface of the ground within the public ways of the City and used or to be used for the
purpose of providing utility services. The term shall include all such things owned by the utility
and all such things as the utility shall have a property interest in, including things held by the
utility or on its behalf under a lease, rental agreement or indefeasible right of use for a term of
years.
(18) Utility services: All services provided by a utility to customers located within the
city limits of the City of Springfield or provided to customers wherever located using facilities
physically located within the city limits of the City of Springfield.
4.602 Utility License Required. A utility license shall be required of any utility who desires to
provide service to persons in the City or to persons or areas outside the City using facilities
located in the City. No utility shall provide services within the City nor shall such utility provide
services outside the City using facilities located within the City unless licensed as provided
herein. Any violation of the provisions of this Chapter shall be a misdemeanor punishable in
accordance with Chapter V of this Code. Carriers who utilize facilities of another licensed carrier
for the distribution of their services shall be required to have a separate license. The purpose of
licensing is to:
(1) provide the City with accurate and current information concerning the utilities who
offer utility services within the City, or that own or operate utility facilities within the City;
(2) assist the City in enforcement of this Chapter;
(3) assist the City in the collection and enforcement of any municipal taxes, franchise
fees, license, permit or other fees or charges that may be due the City;
(4) assist the City in monitoring compliance with local, and, to the extent authorized by
law, with State and Federal laws.
4.604 License Application. Any utility that is required to have a utility license shall file an
application, using the form provided for such purpose, with the Public Works Department which
shall include the following information:
(1) The identity of the license applicant, including all affiliates of the applicant.
(2) A description of the utility services that are or will be offered or provided by licensee.
,/' (3) Information to establish that the applicant has obtained or has applied for all other
governmental approvals and permits to construct and operate the facilities and to offer or provide
the services. Such approvals include, without limitation, any land use decisions. In the event any
other required government approval is not obtained any license granted hereunder shall be
subject to modification to reflect the absence of such approval.
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(4) All fees, deposits or charges required pursuant to this Chapter.
4.606 Determination by the City. Within 120 days after receiving a complete application
under Section 4.604 hereof, the Public Works Director shall, if the application conforms with the
requirements oflaw, issue the license. If the application is denied, the denial shall be in writing
and state the reasons for denial.
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4.608 Utility License. (1 )The license granted hereunder shall authorize and permit the licensee,
subject to the provisions of the Springfield Municipal Code, and other applicable provisions of
state or federal law, to operate the utility and provide the utility services covered by the license.
The license shall authorize the licensee to place facilities in, and occupy, the public ways of the
City for so long as the licensee shall comply with the provisions of this code, and continue to
hold any and all licences and permits required by state or fedei'allaw fl?r the provision of such
services as covered by this license; provided, however that all work, construction, placement or
operation of such facilities shall be in compliance with this code. Nothing in such license shall
authorize the licensee to use the facilities or property of the. City other than public ways, or the
facilities or property of another, including agencies such as the Springfield Utility Board, which
use, if any shall be subject to agreement with the owner of such facility or property and any
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applicable provisions of law. Nothing in such license shall operate or be construed as an approval'
of such business or a regulation of the practices of such business.
(2) The City reserves the right, in every event, without limitation, to:
(a) construct, install, maintain and operate any public improvement, work or
facility in, on, over or under the public ways;
(b) perform or authorize or direct the performance of any work that the City
may find desirable or convenient in, on, over or under any public way; or
(c) vacate, alter, or close any public way; provided, however, that no vacation
shall obligate a utility to remove or abandon any facility located within such
public way; or
(d) require, in the public interest, the removal or relocation, temporarily or
permanently, of facilities maintained by the utility in the public ways of the City,
pursuant to the provisions of Chapter 3 of this Code.
(3) Whenever the City shall perform or cause or permit to be performed, any work in the
public way or the vicinity of the public way where such work may disturb or interfere with a
utility's facilities, the City shall, or shall require its permittee, to notify, in writing, the utility
sufficiently in advance of such contemplated work to enable utility to take such measures,
including removal or relocation of such facilities, as may be deemed necessary to protect such
facilities, at its own expense.
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4.610 Nonexclusive Grant. No license granted hereunder shall confer any exclusive right,
privilege, license or franchise to occupy or use the public ways of the City for delivery of utility
services or any other purposes.
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4.612 Rights Granted. No license granted hereunder shall convey any right, title or interest in
the public ways; but shall be deemed a license only to provide utility services and use and occupy
the public ways for the limited purposes and term stated in the grant. Further, no license shall be
construed as any warranty of title,
4.614 Term of Grant. A license granted hereunder shall be in effect for a term of five (5) years.
4.616 Coordination of Activities. All holders of a License shall be obliged to coordinate their
activities affecting the public ways and shall be obliged to participate in coordination meetings to
be held by the City not less than annually for the purpose of facilitating such cooperation and
coordination.
4.618 Amendment of Grant. A new license application and grant shall be required of any
utility that desires to extend additional or different services in the City which are not included in
a license previously granted under this Chapter.
4.620 Renewal Applications, A licensee that desires to renew its license shall, not more than
180 days nor less than 90 days before expiration of the current license, file an application with
the City for renewal of its license which shall include the information required pursuant to
Section 4.604.
4.622 Renewal Determinations. Within 90 days after receiving a complete application under
Section 4.620 hereof, the Public Works Director shall issue a written determination applying the
following standards, as applicable, and, if the application conforms with the requirements of law,
grant the application:
(1) Compliance with requirements of applicable State and federal laws and regulations.
(2) The applicant's compliance with the requirements of this Chapter and any Public Way
Use Agreement. If the renewal application is denied, the written determination shall include the
reasons for non-renewal.
4.624 Obligation to Cure As a Condition of Renewal. No license shall be renewed until any
existing violations or defaults in the licensee's performance of the requirements of this Chapter,
have been cured, or a plan detailing the corrective action to be taken by the licensee has been
approved by the City.
UTILITY LICENSE - FEES AND COMPENSA nON
4.700 Purpose. It is the purpose of Sections 4.700 through 4.714 to provide for the payment
and recovery of all direct and indirect costs and expenses of the City related to the enforcement
and administration of this Chapter.
4.702 Application and Review Fee.
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(1) Any applicant for a license, including a renewal or amendment of an existing license,
shall pay a fee fixed by resolution of the Council.
(2) The application and review fee shall be deposited with the City as part of the
application filed.
(3) An applicant whose license or franchise application has been withdrawn, abandoned
or denied within sixty (60) days of its application and review fee written request, shall be
refunded the balance of its deposit under this section, less:
(i) the non-refundable portion of the application and review fee, as fixed by
resolution of the Council, or
(ii) All ascertainable costs and expenses incurred by the City in connection
with the application, whichever is greater.
4.704 Other City Costs. In addition to the application and review fee, all license or franchise
grantees shall, withiri thirty (30) days after written demand therefor, reimburse the City, to the
extent permitted by law, for all direct and indirect costs and expenses incurred by the City in
connection with any issuance, modification, amendment, renewal or transfer of the license or
franchise or any license or franchise agreement.
4.708 Compensation for City Property. If the right is granted, by lease, license, franchise or
other manner, to use and occupy City property other than the public ways for the installation of
facilities, the compensation to be paid shall be fixed by the City and shall be separate and distinct
from any fees and taxes imposed herein.
4.710 Annual Fees. Each license grantee shall pay an annual license fee to the City in an
amount fixed by Council resolution as reimbursement for the City's costs in administering this
chapter and in connection with reviewing, inspecting and supervising the use and occupancy of
the public ways in behalf of the public and existing or future users.
4.712 Regulatory Fees and Compensation Not a Tax. The regulatory fees and costs provided
for in Sections 4.700 through 4.714, and any compensation charged and paid for City property
provided for in Section 4.708, are separate from; and additional to, any and all federal, state, local
and City taxes as may be levied, imposed or due from a utility, its customers or subscribers, or on
account of the lease, sale, delivery or transmission of utility services.
4.714 Penalties and Interest for Late Payment. If any fee provided for herein shall not be
timely paid, a penalty in the amount of 10 percent of such fee shall be assessed and due as of the
date the underlying fee was due. Interest on fees and penalties shall accrue at the rate of 1.5
percent per month, commencing with the fifteenth day after the fee or penalty shall be due.
4.716 Repealed.
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Section 3. Following Section 4.714 ofthe Springfield Municipal Code, as amended by
Section 2 of this ordinance, there are added the following sections, to be sections 4.801 through
4.807:
UTILITY TAX
4.801 Utility Tax Imposed. There is hereby imposed, for the purpose of raising revenue for the
operations of the City, a tax in the amount of five percent of gross revenue upon the privilege of
conducting a utility business and providing utility services required to be licensed under Section
4.602, upon any utility required to be licensed, as defined herein, in consideration of the authority
of such utility to conduct such business.
4.802 Minimum Tax. In no event shall the tax due for any calendar year be less than:
(1 )In the case of a utility providing services within the City of Springfield, $100.
(2)In the case of a utility not providing services within the City of Springfield, the greater
of the product of the number of linear feet of public ways occupied by the facilities of the
taxpayer and $3.00, or $100,
4.803 Returns.
(1) For purposes of calculating taxes dues under this section, every utility subject to tax
shall pay such tax on the basis of a calendar year, and shall file, quarterly, before the 4Slh
day following the end of a calendar quarter, a return certified by an officer of the utility
showing the amount of tax due and accompanied by the amount due.
(2) Such return shall show the amount of gross revenue of the utility within the City for
the period covered by the payment computed on the basis set out in this section, and shall
show any offsets, deductions or credits against the revenue or the amount of tax due. The
compensation for the period covered by the statement shall be computed on the basis of
the gross revenue so reported. If the utility fails to pay the entire amount of compensation
due the City through error or otherwise, the difference due the City shall be paid by the
utility within fifteen (15) days from discovery of the error or determination of the correct
amount, with interest at the rate of9 percent per annum, compounded monthly. Any
overpayment to the City through error or otherwise shall be offset against the next
payment due from the utility.
(3) In the event a taxpayer files a return claiming the minimum tax provided by Section
4.802 shall be due, the taxpayer shall nonetheless file a return as provided in subdivision
(2) hereof and shall, if claiming under Section 4.802(2), file a report duly certified by an
engineer, licensed to practice within the State of Oregon, setting forth the calculation of
the number oflinear feet of public way occupied by the taxpayer.
(4) The City may audit any return filed by the utility, and require the utility to submit such
information as shall reasonably be required to establish the accuracy of any payment of
tax or return documenting the amount of tax due. In the event such audit shall disclose a
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discrepancy in favor of the City in excess of five percent of the amount paid, there is
hereby imposed a penalty in the amount of 10 percent of the difference between the
amount paid and the amount found, upon audit, to be due.
(5) Acceptance by the City of any payment due under this section shall not be deemed to
be a waiver by the City of any rights to conduct such audit, nor shall the acceptance by the
City of any such payments preclude the City from later establishing that a larger amount
was actually due, or from collecting any balance due to the City.
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4.804 Gross Revenue.
(1) For purposes of this Chapter, gross revenue shall mean all inflows or enhancements of
assets or settlements of its liabilities (or a combination of both) of whatsoever kind and
nature derived by the utility and, any affiliates, subsidiaries or parent of the utility on
account of goods or services fromthe utility's ongoing operations within the City of
Springfield.
(2) Gross revenue shall include any and all subsidies, discounts, rebates or other
considerations or forbearances by the utility associated with the delivery of such goods
and services within the City of Springfield. In determining gross revenues for the
calculation of taxes, the city shall consider mobile telecommunications services to occur
within the city if they are used by a customer whose place of primary use is within the
city.
(3) As used in this section, "place of primary use" means the residential street address or
the primary business street address of the customer. The city shall apply this provision
consistently with the Mobile Telecommunications Sourcing Act, 4 USC 116 to 126.
(4) For purposes of this section, gross revenues do not include proceeds from the sale of
bonds, mortgages, or other evidence of indebtedness, securities, or stocks, or sales at
wholesale by one utility to another of electrical energy or natural gas when the utility
purchasing such electrical energy or natural gas is not the ultimate consumer.
4.805 Exemptions and Credits. If any licensed utility is a party to a franchise, public way use
agreement, or other contract with the City which requires the payment of a fee for the use of the
public ways ofthe City, any payments made under such agreement during the filing year shall be
credited against any tax due hereunder to the extent the revenue upon which such payments are
based is subject to taxation hereunder.
(1) If a taxpayer asserts that any other provisions of local, state or federal law imposes
a limit upon the revenue subject to taxation that can be imposed in connection
with the use of public ways, such taxpayer shall file a return which:
(a) itemizes the gross revenue subject to taxation;
(b) itemizes the portion of such revenue that is subject to the limitation
claimed to exist under other provisions of local, state or federal law.
(2) The tax liability of a taxpayer claiming a limitation on revenue subject to taxation
shall be the sum of: .
(a) the tax due hereunder on that portion of the taxpayers revenue not subject
to the limitation; and
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(b) on the portion of revenue subject to a limitation, the lesser of;
(i) The tax due under Section 4.801; or
(ii) The tax due under the other provision of local, state or federal law.
Any licensed utility shall be allowed, as a credit against taxes due hereunder, the
reasonable value of any and all services rendered to or goods provided to the City
without fee, if any, during the preceding calendar year.
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4.806 Penalties and Interest.
(1) If any tax payment due hereunder shall not be timely made, there is imposed a penalty
in the amount of 10 percent of the amount due.
(2) Interest on any payment not timely made, and upon all penalties imposed, shall accrue
at the annual rate of nine (9) percent, compounded daily, for each day beyond the due
date, until the date paid.
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4.807 Lien.
(1) The tax imposed by section 4.801, together with the interest and penalties provided by
section 4.806 and the filing fees paid to the Department of Records of Lane County,
Oregon, and advertising costs which may be incurred when the tax becomes delinquent
under section 4.803 shall be, and until paid remain, a lien from the date of its recording
with the Department of Records of Lane County, Oregon, and superior to all subsequent
recorded liens on all real property and tangible personal property of the utility located
within the City of Springfield and may be foreclosed on and sold as necessary to
discharge the lien, if the lien has been so recorded. Notice oflien may be issued by the tax
administrator whenever the operator is in default in the payment of the tax, interest and
penalty, and shall be recorded with the Department of Records and a copy sent to the
delinquent utility. The property subject to the lien and seized by the Tax Administrator
may be sold by the Tax Administrator at public auction after 10 days notice thereof
published in a newspaper in the city.
(2) Any such lien as shown on the records of the Department of Records shall, upon the
payment of the taxes, penalty and interest for which the lien has been imposed, be
released by the tax administrator when their full amount has been paid to the city. The
person making the payment shall receive a receipt therefore stating that the full amount of
the taxes, penalties, and interest have been paid and that the lien is thereby released and
the record of lien satisfied.
Section 4. Severability, Should any court of competent jurisdiction determine that a section or
part of a section of this ordinance is invalid, such invalidity shall not impair the effect or validity
of the remaining sections or parts of sections.
Section 5. Effective Date. This ordinance shall become effective on April 1, 2005. By such date,
any utility required to be licensed pursuant to Section 4.602 shall have applied for, and received,
its license. The tax imposed by Section 4.801 shall be due on all revenue earned on or after April
1,2005,
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Ordinance No. 6105
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ADOPTED by the Common Council of the City of Springfield this ~ day of Decem,ber
2004, by a vote of -L for and ~ against.
APPROVED by the Mayor of the City of Springfield this~day of D~c., 2004. .
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ATTEST:
Amy Sowa, being first duly sworn, deposes and says that Sidney W. Leiken, to me
personally known and known by me to be the person described in the foregoing instrument did
sign this ordinance with his hand in my presence this 6.thday of December, 2004, .
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CITY CORDER
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