HomeMy WebLinkAboutOrdinance 6203 07/16/2007
ORDINANCE NO. 6203
AN ORDINANCE AMENDING ARTICLE 4 OF THE SPRINGFIELD MUNICIPAL CODE TO
PROVIDE FOR LICENSING OF UTILITIES, AMENDING SECTIONS 4.600, 4.602, 4.604,
4.606,4.6084.610,4.612,4.614,4.616,4.618,4.620, 4.622, 4.624, 4.700, 4.702, 4.704, 4.706,
A.708, 4.710, 4.712, 4.714 AND 4.716, DELETING SECTIONS 4.626 AND, 4.628, AND
SETTING AN EFFECTIVE DATE
THE COMMON COUNCIL OF THE CITY OF SPRINGFIELD ORDAINS AS FOLLOWS:
Section 1. Findings.
A. The 2001 Springfield 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 collect fees for use of the public
ways 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.
Section 2. Sections 4.626 and 4.628, Article 4, of the Springfield Municipal Code are hereby
deleted.
Section 3. Sections 4.600, 4.602, 4.604, 4.606, 4.608 4,610, 4.612, 4.614, 4.616, 4.618, 4.620,
4.622,4.624,4.700,4,702,4,704,4.706,4.708, 4.710, 4.712, 4.714 and 4.716, Article 4 of the
Springfield Municipal Code, are 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.
Attachment B, Page 1 of 8
(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) Gross Revenue: 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
from the utility's ongoing operations within the City, including 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, but excluding gross revenues earned in interstate commerce
or on the business of the United States Government and proceeds from the sale of bonds,
mortgages, or other evidence of indebtedness, securities, or stocks, or sales at wholesale by one
utility to another when the utility purchasing is not the ultimate consumer.
(7 Licensee: Any entity required to be licensed hereunder, whether or not granted a
license.
(8) Person: Any individual or entity engaging in activities regulated by this Chapter.
(9) 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.
(10) 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.
(11) 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 ofthe City's right,
title, interest or authority to grant permission to occupy and use such streets and easements.
(12) Tax Administrator: the Finance Director of the City or designee.
(13) 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.
(14) 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.
(15) Telecommunications provider: Includes every person who provides
telecommunications service over telecommunications facilities.
(16) 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,
Attachment B, Page 2 of 8
ORDINANCE NO. 6203
laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed
transmission medium and without regard to the nature of the transmission protocol employed.
(17) Utility: any public utility as defined in ORS 757.005(1), excluding a municipal
utility, any telecommunications utility as defined in ORS 759.005(1), any telecommunications
carrier, telecommunications provider or other entity providing telecommunications, electricity or
heating services,
(18) 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.
(19) 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 civil infraction as defined in
Springfield Municipal Code Section 5.602 subject to enforcement 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.
Attachment B, Page 3 of 8
ORDINANCE NO. 6203
(4) All fees, deposits or charges required pursuant to this Chapter.
4.606 Determination by the City. Within 90 days after receiving a complete application under
Section 4.604 hereof, the Public Works Director shall, if the application conforms with the
requirements of this Code, issue the license. If the application is denied, the denial shall be in
writing and state the reasons for denial.
4.608 Utility License. (l)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 federal law for 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 provide other or different services than those authorized by the license
or 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 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.
(4) Cable Service.
(a) Any licensee providing cable service shall provide public, educational and
governmental channel capacity as provided in the Cable Acts. Unless otherwise provided in a
Public Way Use Agreement, such channel capacity shall be substantially equivalent to that
Attachment B, Page 4 of 8
ORDINANCE NO. 6203
provided in the community by any other provider of cable service at the time the license is
granted.
(b) Any licensee providing cable service shall, unless otherwise provided in a
Public Way Use Agreement, as a condition of its license, file and comply with a plan for making
service available to a reasonable proportion of all residential addresses within the City within a
reasonable time of the commencement of service.
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 Aoplications. 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 this
Code, grant the application:
(1) Compliance with requirements of applicable State and federal laws and regulations.
(2) The applicant's compliance with the requirements ofthis 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,
Attachment B, Page 5 of 8
ORDINANCE NO. 6203
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 COMPENSATION
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.
(I) 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, within 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.
4.706 Fee for use of Public Ways.
(1) (a) All persons not parties to a franchise or Public Way Use Agreement and occupying
the public ways for delivery of utility service shall pay to the City of Springfield a Utility Fee in
the amount of 5 percent of gross revenues, as herein defined, subject to limitations in other state
or federal laws.
(b) All persons not parties to a franchise or Public Way Use Agreement and occupying
the public ways for placement of utility facilities but not providing utility service within the City
shall pay a fee, in an amount fixed by resolution of the Council for each foot or portion thereof
occupied, subject to limitations in other state or federal laws.
(2) This fee shall be in addition, and not in lieu of any fees or charges provided under this
Municipal Code.
(3) unless otherwise agreed such fee shall be paid quarterly, on or before the 45th day
following the end of the calendar quarter.
Attachment B, Page 6 of 8
ORDINANCE NO. 6203
4.708 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 on behalf of the public and existing or future users.
4.710 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 imposed n sections 4,702-4.708.
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 4.710, 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 Audits. The City may examine the books and records of the utility to verify the amounts
due under a franchise, Public Way Use agreement or fee in lieu thereof as provided in Section
4.706. The utility shall either maintain such books and records at a location within the State of
Oregon or, in the alternative, shall provide them to the City when requested, at no expense to the
City. In the event such examination discloses an underpayment in the amount due to the city of
more than five percent, the City may impose a penalty of 10 percent of the additional amount
due, plus costs of the audit, and interest as provided herein from the original date due."
Section 3. 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 4. Effective Date. This ordinance shall become effective on August 17,2007. Any
utility required to be licensed pursuant to Section 4.602 and occupying the public ways as of such
effective date pursuant to a franchise or Public Way Use Agreement shall be deemed to have
complied with the provisions of Section 4.602 during the term of such franchise or Public Way
Use Agreement including any renewal thereof without interruption. The provisions of such
Franchise or Public Way Use Agreement shall not be altered by operation of this ordinance.
ADOPTED by the Common Council of the City of Springfield this ~ day of July
2007, by a vote of ~ for and ~ against.
ORDINANCE NO. 6203
Attachment B, Page 7 of 8
APPROVED by the Mayor of the City of Springfield this~day of July
,2007,
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 16thday of July ,2007.
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OFFICE OF CITY ATTORNEY
ORDINANCE NO. 6203
Attachment B, Page 8 of 8