HomeMy WebLinkAboutAgenda Item - 2025-09-16 - Number 10.1 - Resolution 24-29, Ordinance 2931 and 2965 10.1
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COUNCIL REPORT
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Subject: Resolution 24-29, Ordinance 2931, Ordinance 2965, and LOC Chapter 51 (Utility
Facilities in Public Rights-of-Way) Amendments and Fees
Meeting Date: September 16, 2025 Staff Members:
Erica Rooney, Public Works Director
Report Date: August 29, 2025 Nell Diamond, Management Analyst
Departments: Public Works Department
Action Required Advisory Board/Commission Recommendation
❑ Motion ❑ Approval
❑X Public Hearing ❑ Denial
❑X Ordinance ❑ None Forwarded
❑X Resolution ❑X Not Applicable
❑ Information Only Comments:
❑ Council Direction
❑ Consent Agenda
Staff Recommendation: Enact Ordinance 2931, 2965, and Adopt Resolution 24-29.
Recommended Language for Motions: Move to adopt Resolution 24-29 and enact Ordinances
2931 and 2965.
Project/Issue Relates To: Utility Providers' Use of Rights-Of-Way, Regulations for Wireless
Facilities in the Rights-Of-Way
Issue before Council (Highlight Policy Question):
❑Council Goals/Priorities ❑Adopted Master Plan(s) ❑X Not Applicable
EXECUTIVE SUMMARY
Utility providers—including PGE, NW Natural Gas, Verizon, Comcast, and other
telecommunication companies--place their utility facilities in, under or above the public
rights-of-way. LOC Chapter 51 requires these providers to obtain a license and pay a use
fee.
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To comply with federal regulations, the City must update codes, policies, and fees related
utility facilities in the public right-of-way. The updates are:
• Proposed Ordinance 2931 (Attachment 1): Amends LOC Chapter 51, which
regulates utility facilities in the rights-of-way. Attachment 2 provides Staff
Commentary.
• Proposed Ordinance 2965 (Attachment 3): Replaces Ordinance 2820, updates
regulations for wireless facilities in the rights-of-way.
• Resolution 24-29 (Attachment 4): Updates the fee amounts and revises the
methodology.
Most amendments improve readability and clarity. They also require licensees to report
more details about their own use of facilities, and whether others are subleasing those
facilities.
The changes align City regulations and fees with federal law for telecommunication
providers operating in the rights-of-way.
BACKGROUND
The City Council adopted LOC Chapter 51 (Utility Facilities in Public Rights-Of-Way) by
Ordinance 2804, on January 2, 2019.The purposes of Chapter 51 are to:
1) Standardize terms and compensation for utility use of the rights-of-way, to "more
effectively, efficiently, fairly, and uniformly manage the public rights- of-way" through
licenses rather than franchises (though negotiated franchises remain as an option);
and
2) Establish a regulatory framework for permitting "small cell" wireless facilities,
consistent with federal requirements, including design, size, location, and appearance
standards.
DISCUSSION
Resolution 19-03 was approved in 2019, and established fees and minimum insurance
limits for utilities in the rights-of-way. Amendments to Resolution 19-03 are proposed to
ensure compliance with federal telecommunications laws that require equal treatment
among providers.
Staff from Public Works and the City Attorney's Office reviewed the proposed changes,
with additional review by the City's telecommunications legal counsel.
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Licensees were notified of the proposed amendments and fee updates on June 12, 2024.
A public hearing was held on March 18, 2025. Stakeholders raised concerns, leading
Council to continue the hearing to May 6, 2025, and later to September 16, 2025, to allow
for revisions.
On April 14, 2025, staff met with wireless stakeholders. Concerns and responses included:
1) Fee Clarity: Resolution 24-29 now separates fees for facility owners and service
providers. Entities that are both will not be double-charged.
2) Definition of Small Cell Providers: Updated to match federal regulation 47 C.F.R §
1.6002(1).
3) Gross Revenue Charge: Instead of a 5%gross revenue fee, wireless owners in the ROW
will pay an annual fee. Two categories are now defined for clarity:
• Utility Service Operators: Entities that own, place, operate, or maintain utility
facilities in the ROW.
• Utility Service Providers: Entities that use facilities to provide services. Wireless
providers that sublease existing facilities now pay a one-time fee.
4) Removal of Equipment: Ordinance 51.01.090 clarifies that the City will use qualified
personnel following state and federal safety laws.
Staff incorporated these concerns while maintaining Council's policy goals. Ordinance 2965
also ensures consistency with local, state, and federal law, and corrects minor errors.
ALTERNATIVES
The Council may adopt the ordinances and resolution as presented, or direct staff to make
further revisions.
RECOMMENDATION
Enact Ordinances 2931, 2965, and Adopt Resolution 24-29
ATTACHMENTS
1. Attachment 1 - Ordinance 2931 with Exhibit A
(Code amendments, no commentary)
2. Attachment 2 - Code Amendments with Commentary
3. Attachment 3 - Ordinance 2965 Policy with Exhibit A
4. Attachment 4- Resolution 24-29
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ATTACHMENT 1
ORDINANCE 2931
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAKE OSWEGO AMENDING LOC CHAPTER 51
(UTILITY FACILITIES IN PUBLIC RIGHTS-OF-WAY),TO CLARIFY AND IMPROVE DEFINITIONS, LICENSING
AND REPORTING REQUIREMENTS, AND THE ENFORCEMENT PROCESS REGARDING UTILITY
PROVIDERS USING THE PUBLIC RIGHTS-OF-WAY.
WHEREAS, LOC Chapter 51 was enacted in 2018 to provide uniform, standardized terms and
compensation for the use of the city's public rights-of-way by utility providers, and
WHEREAS,the need for additional clarity and improvements to LOC Chapter 51 have been identified that
will improve the implementation and compliance by utility providers using the public rights-of-way
within Lake Oswego;
The City of Lake Oswego ordains as follows:
Section 1. LOC Chapter 51 of the Lake Oswego Code is hereby amended by adding the text shown in
bold,double-underlined type and deleting the text shown in strikcthrough type, on Exhibit A.
Section 2. Severability. The provisions of this ordinance are severable. If any portion of this ordinance
is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions
of this ordinance.
Enacted at the regular meeting of the City Council of the City of Lake Oswego held on the 16thh day of
September, 2025.
AYES:
NOES:
ABSTAIN:
EXCUSED:
Joseph M. Buck, Mayor
ATTEST:
Laural Casey, City Recorder
APPROVED AS TO FORM:
Ellen Osoinach, City Attorney
Ordinance 2931
Page 1 of 1
Exhibit A to Ordinance 2931
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Chapter 51
UTILITY FACILITIES IN PUBLIC RIGHTS-OF-WAY
Article 51.01
In General.
Sections:
51.01.010 Title.
51.01.020 Purpose and Intent.
51.01.030 Jurisdiction and Management of the Public Rights-of-Way.
51.01.040 Regulatory Fees and Compensation Not a Tax.
51.01.050 Definitions.
51.01.060 Annual Registration.
51.01.070 Licenses.
51.01.080 Construction and Restoration.
51.01.090 Location of Facilities.
51.01.100 Leased Capacity.
51.01.110 Maintenance.
51.01.120 Vacation of Public Rights-of-Way.
51.01.130 Public Rights-of-Way Fee.
51.01.135 Penalties and Interest on Fee.
51.01.140 Audits-; Information Requests.
51.01.150 Insurance and Indemnification.
51.01.160 Compliance.
51.01.170 Confidential/Proprietary Information.
51.01.180 City Permission Requirement.
51.01.190 Obligations of the City.
51.01.200 Violations; Penalties.
51.01.210 Severability and Preemption.
51.01.220 Application to Existing Agreements.
51.01.010 Title.
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 and utilization of 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 utilization of the public rights-of-way by
persons who generate revenue by placing utility facilities therein and charging residents, businesses,
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visitors, and others for services delivered by those facilities,owning,controlling, using, leasing capacity
or operating utility facilities in the rights-of-way;
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; and
6. Comply 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 w+f4 shall 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(a) is intended to preempt any state or federal law, rule,
or regulation; and (b) shall be interpreted, deemed, or applied in a 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
ose of the public rights of way provided for as required 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 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.
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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 Cable service is to be defined consistent with of 47 U.S.C. Section 522(6), as may be
amended or superseded, and means the one-way transmission to subscribers of(a)video programming,
or(b) 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 City —Moans means the City of Lake Oswego, Oregon, a municipal corporation, and its governing
authority. In addition,the City may refer to all the territory within its corporate boundaries and as such
may change from time to time.
CITY COUNCIL City Council Moans means the City Council of the City of Lake Oswego.
City Engineer means the person holding the position of City Engineer of the City of Lake Oswego or
designee of the City Engineer.
City facilities Mons 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, wastcwatcr sanitary sewer, storm sewer, or water infrastructure
such as related pipes, manholes, catch basins,wires, conduit,valves,vaults, and appurtenances.
City Manager means the person holding the position of City Manager or the City Manager's designee.
City Standards means all applicable City construction, engineering and design standards and policies
related to utility facilities and work in the rights-of-way, including the Wireless Facilities in the Public
Rights-of-Way Policy, in effect at the time of any work.
COMMUNICATION SERVICES Communications services Mons 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: (a) cable service; (b) open video system service, as
defined in 47 CFR Section 76; (c) over-the-air radio or television broadcasting to the public-at-large from
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facilities licensed by the Federal Communications Commission or any successor thereto; (d) public
communications systems; and (e) direct-to-home satellite service within the meaning of Section 602 of
the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat.56(1996).
Days mean calendar days, unless otherwise noted.
Federal Communications Commission means the federal administrative agency,or its lawful
successor,authorized to regulate and oversee telecommunication carriers,services and providers on a
national level.
Gross Revenue means any and all amounts,of any kind, nature or form,without deduction for
expense, less net uncollectibles,derived from the operation of utility facilities in the City(including
revenue derived from any leases or other agreements allowing use of utility facilities to other
person(s))or the provision of utility service(s) in the City,subject to all applicable limitation in federal
and state law.Gross revenues shall not include(1)any tax,fee,or assessment imposed on customers
by any municipality,state or other governmental unit and collected by the utility service operator or
utility service provider for pass-through to a government agency or(2)sales of bonds, mortgages,or
other evidence of indebtedness,securities,or stocks.
LICENSE License Mews means the authorization granted by the City to a utility services operator
pursuant to this chapter.
Licensee means any •erson that holds a valid License issued by the City under this chapter.
PERSON Person M ans 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 Public communications system M ans 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 ORS 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 RIGHTS OF WAY—Public rights-of-way or Right-of-way M ans 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,public utility
easements, and al-bother public ways or areas generally open to the public for vehicular travel,
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.
PUBLIC UTILITY €AS€M€NT—Public utility easement M ans means the space in, upon, above, along,
across, over, or under an easement for the construction, reconstruction, operation, maintenance,
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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.
STATE State Means means the state of Oregon.
STREETS OR CITY STREETS—Streets or City streets M ans 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 Utility facility M ans means any physical component of a utility service
system, including but not limited to the poles, pipes, mainlines, 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 Utility service M ans means the provision, or intent to provide, 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,
wireless communications services,or 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 owned or operated by the City of Lake Oswego.
UTILITY SERVICE OPERATOR OR OPERATOR—Utility service operator or operator Me-as means any
person who owns, places, operates, or maintains a utility facility within the City, except for the City of
Lake Oswego.
Utility service provider or provider means any person who provides utility service within the City,
regardless of whether or not the person owns the utility facilities used to provide the utility services.
Wireless communications services means any wireless service using Federal Communications
Commission-licensed or unlicensed spectrum including without limitation any personal wireless
services,as defined in 47 U.S.C. §332(c)(7)(C).
WORK Work Means 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; Exemption. 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 person
Ord. No. 2931
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within the City as of the effective date of this chapter shall required to register pursuant to this section
shall register within 45 days of the effective date of this chapter,provided,that a utility service
operator with an unexpired City franchise agreement in effect and in good standing shall register
within 45 days of the expiration of the franchise.
2. Annual Registration. After registering with the City under 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 places, operates or maintains utility facilities in the
public rights-of-way must shall have at all times a license under this chapter from the City. Every person
shall obtain a license prior to conducting any work or 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 45 days of the later of(a) the
effective date of this chapter, or(b)the expiration of a valid franchise from the City.
The license requirement in subsection (1)shall not apply to those utility service operators
with an unexpired City franchise agreement in effect and in good standing, provided,that every such
franchised utility service operator shall apply for a license under this chapter(or obtain a franchise per
LOC 51.01.070(17))within 45 days of 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, at no cost to the City,that allows the
City to easily 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/or
other persons, 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 federal law, the City Engineer Manager 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 Manager finds
necessary or appropriate for processing applications,which shall be effective immediately upon
publication.
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4. License Application Fee.The application shall be accompanied by a nonrefundable 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 60 days after having
received a duly filed, complete 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. Changes to information contained in the License application. Within thirty(30) days of a
change to any material information contained in the license application during the term of the license
or any renewal,the licensee shall notify the City in writing of such change(s).
7. 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 and provide utility services 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 of and 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 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 intended use or proposed utilization. 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, and the present or future suitability of the public rights-of-way for the licensee's use.
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.
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8. Term of License. Subject to the termination provisions in subsection(13)(14) of this section,
the license granted pursuant to this chapter will remain in effect for a term of five years, unless
otherwise stated in the license, until expiration.which is determined as follows:
a. If issued between January 1 and June 30,the license shall expire on July 1. 12:01 a.m. after
the fifth anniversary of issuance;or
b. If issued between July 1 and December 31.the license shall expire on January 1, 12:01 a.m.
after the fifth anniversary of issuance.
8 9. 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.
10. Reservation of City Rights.
a. 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 b. If any person'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 the person's utility 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.
4-911. 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 any fee owed to the
City by a third party using a utility service operator's facilities.
4412. 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,
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unless the licensee demonstrates to the City that state or federal law specifically prohibits the City from
requiring its prior written consent.A transfer, sublicense, or assignment wi14 shall 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 laws 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.
4-4 13. Renewal. At least 90, but no more than 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 Manager.The City shall review the application and grant or deny the license within 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.
4314. Revocation or 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 work 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
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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.
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 licensee's history of compliance; and
v. The operator's licensee's cooperation in discovering, admitting, and curing the violation.
c. The City shall not give a refund or credit of any kind for revoked or terminated licenses.
4415. Notice and Cure.The City Manager shall give the operator licensee 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 30 days for the licensee to demonstrate that the licensee has remained in compliance,that the
operator licensee 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 licensee is in the process of curing a violation or noncompliance,the operator licensee
must demonstrate that it the licensee acted promptly and continues to actively work toward
compliance. If the operator licensee does not respond within the reasonable time stated in the notice,
the City Engineer Manager 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.
16. Termination by Licensee.
a. If a licensee ceases to be required to have a license,the licensee may terminate the license
upon a 30 day notice to the City Manager. Licensee may reapply for a license at any time.The
City will not give any refunds or credits of any kind for licenses terminated by the licensee.
b. Within thirty(30)days after surrendering a license,the licensee shall file a final remittance
form with the City Manager stating,"final remittance"and shall remit any funds due.
c. Upon surrendering a license,the licensee shall file a statement that it has removed,or will
remove within 60 days,any and all of licensee's facilities from the public rights-of-way, per
LOC 51.01.090. Upon removal of all facilities,the licensee is no longer is subject to the
provisions of this chapter.
4-517. Franchise Agreements. If the public interest warrants, as determined by the City Council in its
sole and absolute discretion, the City and utility service operator may enter into a written franchise
agreement that includes terms that clarify, enhance, expand, waive, or vary the provisions of this
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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.The person requesting a franchise agreement in lieu of a license shall pay a non-refundable
fee,set by resolution of City Council,for the purpose of covering the City costs of negotiation,which
the City may require prior to commencing franchise negotiations.
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 utility facilities in public rights-of-way subject to this chapter.All such policies, standards,
specifications, and other guidelines_
(a) must Shall be consistent, and not in conflict with,the provisions of state,federal, and
local law, which includes this chapter and the Wireless Facilities in the Public Rights-of-Way Policy; and
(b) 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. Preconstruction Approval. Prior to the commencement of any construction, extension, or
relocation of any of licensee's facilities work upon, over, under, or across any of the streets, highways,
or other public rights-of-way within the jurisdiction of the City,the licensee person intending to
perform the work shall advise the City's Engineering Department City Engineer 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 utility 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 City standards. Not less than 48
hours before commencement of any work that might affect City utilities,licensee the person intending
to perform the work shall contact the Oregon Utility Notification Center for the purpose of utility
location.The location of all such utility 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 standards 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 Engineer 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, any such work
unless the person is a licensee 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 Manager and shall comply with LOC-42.04.110 and, if
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applicable,the Wireless Facilities in the Public Rights-of-Way Policy. and be accompanied by drawings,
plans, and specifications in sufficient detail to demonstrate:
a. That the utility facilities wi-I4 shall be constructed in accordance with City standards and all
other applicable laws, codes, rules, and regulations.
b. The location and route of all utility facilities to be installed above ground or on existing utility
poles and, if the private utility service 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 in accordance with
City standards.
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
City facilities or other utility 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 work.The construction schedule is subject to approval by the
Engineering Department City Engineer. Subject to any restrictions in state or federal law,the City
Engineer Manager 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 Manager finds necessary or appropriate for processing applications, which shall be
effective immediately upon publication.
6. Prior to issuance of any street opening permit,the applicant shall pay the applicable permit fees
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 City Engineer shall issue a permit authorizing construction of
the utility facilities the work in the rights-of-way, 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 City
Engineer not less than we 14 business days in advance of any excavation or construction work in the
public rights-of-way.
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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 City 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.
34-10. 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)including City
standards, shall be removed or corrected at the sole expense of the permittee.The City Manager is
authorized to issue stop work orders in order to assure compliance.
42.11. The permittee shall promptly complete all construction activities work 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 private property.All construction work
within the public rights-of-way, including without limitation any restoration work, must be completed
within 120 days of the date the construction permit is issued unless the City Engineer has approved an
extension or an alternate schedule.
43.12. Injury to Persons or Property. An operator shall preserve and protect from injury or damage
other operators' City facilities and other utility 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, City facilities and other utility
facilities that may be subject to damage from the permitted work. An operator shall:
(a) Utise suitable barricades,flags,flagging attendants, lights,flares, and other measures as
required for the safety of all members of the general public;
(b) Ceomply with all applicable Americans with Disabilities Act requirements; and
(c) eComply with all the requirements of the Manual on Uniform Traffic Control Devices
(MUTCD).
1-4 13. 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, including City standards,
unless otherwise directed by the City.
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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 days
and not exceeding 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 reasonabl
documentation for the costs incurred,the operator shall reimburse the City within 30 days for the
costs the City incurred.
4-5 14. Inspection. Every operator's facilities utility facility shall be subject to the right of periodic
inspection by the City or its agent:,to determine compliance with the provisions of this chapter and all
other applicable federal,state and local City laws,codes, ordinances, rules and regulations,including
the City standards. 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 utility facilities and the restoration of the public rights-
of-way comply with the terms of this chapter and applicable federal,state and City local laws,codes,
ordinances, rules and regulations,including the City standards.
4-6.15. Coordination of Construction.All operators shall make a good faith effort to both cooperate
with and coordinate their construction work schedules with those of the City and other users of the
public rights-of-way.
a. Prior to January 1 of each year, operators shall provide the City Manager with a schedule of
known proposed construction work 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 Manager annually, or as determined
by the City Manager,to schedule and coordinate construction work in the public rights-of-way.
c. All work construction locations, activities, and schedules within the public rights-of-way shall
be coordinated as ordered by the City Manager to minimize public inconvenience, disruption, and
damages to persons and property.
51.01.090 Location of Utility Facilities.
1. Location of Utility Facilities.
a. Unless otherwise agreed to in writing by the City Manager, whenever any existing electric
utilities, cable facilities, or communications facilities are located underground within a public right-
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of-way of the City, an operator with permission to occupy the same public right-of-way shall locate
its utility facilities underground at its own expense.
a b. 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 utility 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 Manager and
consistent with applicable state and federal law.
la c. The requirements in this section do not apply to antennas, pedestals, cabinets, or other
above-ground equipment of any utility service provider for which the City has approved above-
ground placement, or utility facilities used for transmission of electric energy at nominal voltages
in excess of thirty-five thousand (35,000)volts.
2. Map of Location of Utility Facilities. Utility service operators shall provide annually by
February 1, at no cost to the City, a comprehensive map showing the location of all utility facilities in
the City. Such map shall be provided in a format acceptable to the City Manager(e.g.,Shapefile or
Geodatabase),with accompanying data sufficient for the City Manager to determine the exact
location of utility facilities. The map shall identify any changes that occurred from the prior map on
file.
2 3. Interference with the Public Rights-of-Way. No operator or other person may locate or
maintain utility 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 thc public rights of way shall be consistent with City codcs, ordinances, rules, and
regulations, which includes without limitation any policies, standards, specifications, and other
guidelines adopted by thc City Engineer pursuant to this chapter. Utility facilities shall not be located in
areas of restricted sight distance or interfere with the proper function of traffic control signs,signals,
lighting,or other devices that affect traffic operation. All utilization of the public rights-of-way shall
be consistent with City standards.
34. 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
utility facilities are not required to be located underground pursuant to subsection (1)fb3(cJ of this
section.
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.
c. The City Manager 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 utility facilities. If an operator fails to remove, relocate,
Ord. No. 2931
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change, alter or underground any utility facility as requested by the City Manager and by the date
established by the City Manager, 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 Manager 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 Manager with reasonabl
documentation, the operator shall reimburse the City within 30 days for the costs the City incurred.
4 5. Removal of Unauthorized Utility Facilities.
a. Unless otherwise agreed to in writing by the City, within 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 utility facility and restore the public right-of-way to City
standards.
b. A utility system or utility 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 utility facilities that were never licensed or
franchised and utility facilities that were once licensed or franchised but for which the license
or franchise has expired or been terminated.This does not include any utility facility for which
the City has provided written authorization for abandonment in place.
ii. The utility facility has been abandoned and the City has not provided written
authorization for abandonment in place. A utility facility is abandoned if it is not in use and is
not planned for further use. A utility facility w+4 shall be presumed abandoned if it is not used
for a period of one year.An operator may attempt to overcome this presumption by presenting
plans for future use of the utility 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 30 days of the City Manager sending written notice of such violation, unless the
City Manager extends such time period in writing.
5 6. Removal by City.
a. The City retains the right and privilege to cut or move any utility facilities of any operator or
similar entity located within the public rights-of-way of the City,without notice, as the City
Manager may determine to be necessary, appropriate or useful in response to a public health or
safety emergency.The City shall use qualified personnel or contractors consistent with applicable
state and federal safety laws and regulations to the extent reasonably practicable without impeding
the City's response to the emergency.
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b. If the operator fails to remove any utility facility when required to do so under this chapter,
the City may remove the utility 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 including the administrative, personnel,collection, and
legal costs incurred by the City in removing the utility 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 30 days.The obligation to remove shall
survive the termination of the license or franchise.
c. The City is not liable to any operator person for any damage to utility facilities, or for any
consequential losses resulting directly or indirectly from any damage caused by the City's actions,of
its including actions of any City contractor, in removing, relocating, altering, or undergrounding the
utility facilities, unless such damage arises directly from the City's sole active negligence or willful
misconduct.
6 7. Engineering Designs and Plans.The operator shall provide the City with as-built plans or system
maps of their utility facilities, upon request,for the purpose of design of other City infrastructure or to
confirm existing conditions.
51.01.100 Leased Capacity.
An operator may lease or otherwise provide capacity on or in its systems to others ("lessees"); provided,
that:
1. the 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 2. the 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 utility facility; and
4 3. the The operator maintains control over and responsibility for the utility facility at all times.
Nothing in this section relieves or lessens the restrictions or requirements of this chapter.
51.01.110 Maintenance.
1. Every operator shall install and maintain all utility facilities in a manner that complies with
applicable federal, state and local laws, rules, regulations,apolicies,and City standards.The operator
shall, at its own expense, repair and maintain utility facilities from time to time as may be necessary to
accomplish this purpose.
2. If, after written notice from the City Manager of the need for repair or maintenance, an operator
fails to repair and maintain utility facilities as requested by the City Manager and by the date
established by the City Manager,the City may perform such repair or maintenance using qualified
personnel or contractors at the operator's sole expense. Upon receipt of a detailed an invoice from the
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City Manager,with reasonable supporting documentation, the operator shall reimburse the City for the
costs the City incurred within 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 utility facilities from the vacated public rights-of-way
unless: (a) the City reserves 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(b)the operator
obtains an easement from the owner for its utility facilities.
2. If the operator fails to remove its utility facilities within 30 days after a public right-of-way is
vacated, or as otherwise directed or agreed to in writing by the City Manager, the City may remove the
utility 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 30 days in accordance with LOC 51.01.090(6).
51.01.130 Public Rights-of-Way Fee.
1. Rights-of-Way Fee.
I a. Every person that owns,controls,places,operates or uses maintains utility facilities in the
City's public rights-of-way,regardless of whether customers within the City are served by those
facilities, and every person that utilizes utility facilities to provide utility service(s) in the City,
whether or not the person owns the utility facilities utilized to provide the utility service(s),shall
pay the public rights-of-way fee for every utility service provided in the amount must pay a fee as
determined by resolution of the City Council.
b. A person that both owns, places,operates or maintains utility facilities in the City's public
rights-of-way and utilizes utility facilities to provide utility service(s)in the City shall deduct from
the total amount due pursuant to subsection (1)(a)the lower of the two fees imposed pursuant
to that subsection or,in the event the fees are the same,deduct from the total amount due the
full amount of one of the fees.
c. Fees required by subsection (1)(a)shall be reduced by any franchise fees, but in no case
shall be less than zero dollars($0).
2. a. Unless otherwise agreed to in writing by the City Manager, the rights-of-way fee shall be
paid quarterly, in arrears, for ach quarter during the term of the license within 30 days after the end of
each calendar quarter and shall be accompanied by an accounting account of gross revenues, if
applicable, and other information sufficient to illustrate the a calculation of the amount payable.The
operator shall pay simple interest at a rate of 9%or the highest rate permitted under applicable law per
year for any payment made after the due date.The City Manager may issue a remittance form,and if
so issued,the utility service operator or utility service provider shall complete the form when
submitting payment.
b. Upon request by the City Manager,the utility service operator or utility service
provider shall provide,at no cost to the City,any additional reports or information the City Manager
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deems necessary, in the City Manager's sole discretion,to verify the amount due from the operator or
provider. Such information may include, but is not limited to:chart of accounts;total revenues by
categories and dates; list of products and services; narrative documenting calculation;details on
number of customers within the City;or any other information needed for the City Manager to easily
verify compliance.
c. No acceptance of any payment shall be construed as accord that the amount paid is in
fact the correct amount,nor shall such acceptance of payment be construed as a release of any claim
the City may have for further or additional sums payable.
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 operatom persons
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 person 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.
50.01.135 Penalties and Interest on Fee.
1. Penalties and interest imposed by this section are in addition to any penalties that may be
assessed in this chapter or under other ordinances or regulations of the City.
2. Any person who has not submitted the required remittance forms or remitted the correct fees
when due as provided in LOC 51.01.130 shall pay a penalty listed below in addition to the
amount due:
a. First occurrence during any one calendar year: 10%of the amount owed or$25.00,
whichever is greater.
b. Second occurrence during any one calendar year: 15%of the amount owed or$50.00,
whichever is greater.
c. Third occurrence during any one calendar year:20%of the amount owed or$75.00,
whichever is greater.
d. Fourth occurrence during any one calendar year:25%of the amount owed or$100.00,
whichever is greater.
3. If the nonpayment or underpayment of any fee due is because of intent to evade the
provisions hereof,an additional penalty of 25%of the amount owed or$500.00 whichever is
greater,shall be added thereto in addition to other penalties provided in this chapter and as
allowed by law. In the absence of an explanation for nonpayment or underpayment due to
the operator or provider's negligence or financial inability to pay any fee due,a rebuttable
presumption of intent to evade obligation exists.
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4. In addition to the penalties imposed,any person who fails to remit any fee amount when due
shall pay interest at the rate of 1.5%per month or fractions thereof,without proration for
portions of a month,on the total amount due(including penalties),from the date that the
remittance first became delinquent,until received by the City.
5. Every penalty imposed,and such interest as accrues under the provision of this section,shall
be merged with,and become part of,the fee required to be paid.
6. The City Manager,in their sole discretion,shall have the authority to reduce or waive the
penalties and interest due under this section.
51.01.140 Audits; Information Request.
1. The City Manager may audit any operator or request information from any person subject to
this chapter at any time to review or verify compliance with the requirements of this chapter,
including but not limited to payment of any applicable fee, rights-of-way fee or franchise fee.The City
Manager w+µ shall make a written request for audit or information and the operator person must
comply with the request,at no cost to the City,within 30 days of receipt of the C-ityLs City Manager's
written request, or such other time as agreed to 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 2. Every operator shall make available for inspection by the City Manager at reasonable times and
intervals all maps, records, books, diagrams, plans and other documents maintained by the operator
with respect to its utility facilities within the public rights-of-way or public utility asements.Access shall
be provided within the City unless prior arrangement for access elsewhere has been made with the City
Manager.
3. In the event an audit or review finds that a utility service operator or utility service provider is
not in compliance with the provisions of this chapter,the City Manager shall present a report to the
utility service operator or utility service provider of the findings of the audit or review. The utility
service operator or utility service provider shall have 30 days to review the report and to file any
objection to the report with the City Manager. If no objection is filed within the 30-day period,the
findings of the report shall be final. If the utility service operator or utility service provider objects
to the findings,the City Manager and utility service operator or utility service provider shall meet
within the City within 30 days of the filing of the objection and review the relevant information in an
effort to mutually agree upon the findings or otherwise resolve the matters raised in the audit or
report. If the utility service operator or utility service provider and City Manager are unable to
mutually agree,the dispute shall be submitted to arbitration with the Arbitration Service of Portland
(or such other arbitration service designated by the City Manager)within 30 days after the utility
service operator and utility service provider and City Manager are not able to mutually agree. The
utility service operator or utility service provider and City Manager may agree upon an alternative
method or timeline for dispute resolution. The cost of arbitration shall be borne equally by the
utility service operator or utility service provider and the City.
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4. If the City Manager's audit or review of the books, records and other documents or information
of the operator or utility service provider demonstrates that the operator or provider has not paid or
has underpaid the rights-of-way fee or franchise fees by 3%2%or more in any one year twelve month
period, the operator or utility service provider shall reimburse the City for the cost of the audit or
review, in addition to any interest or penalty owed as provided by this chapter or as specified in a
franchise agreement.
5. Any nonpayment or underpayment, including any interest, penalty or cost of review or audit
cost rcimburscmcnt shall be paid within 30 days of the City Manager's notice to the operator or utility
service provider of such nonpayment or 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 at least equal the maximum limits of liability imposed on municipalities of
the state of Oregon under the Oregon Tort Claims Act(ORS 30.260-.300).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 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 of 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 Manager, 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
Ord. No. 2931
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service operator or its affiliates, officers, employees, agents, contractors, subcontractors or lessees
in the construction, operation, maintenance, repair or removal of its utility facilities,work in the
public rights-of-way, and/or in providing or offering utility services over the utility facilities,
whether such acts or omissions are authorized, allowed or prohibited by this chapter or by a
franchise agreement.The acceptance of a license under LOC§51.01.070 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 utility facilities in the public rights-of-
way or asement:,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.
Every operator person subject to this chapter 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, including the City standards, heretofore or
hereafter adopted or established during the term of any license granted under this chapter.
51.01.170 Confidential/Proprietary Information.
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 r asonable 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 cl arly marked as
confidential by the person at the time of disclosure to the City exempt from public disclosure under
the Oregon Public Records Law(ORS 192.311 et seq),the person shall plainly mark each book, record,
map or information with "Claim of Exemption from Public Disclosure." If the City receives a public
records request to inspect the marked material,the City shall,to the extent reasonably possible,
notify the person who submitted the marked material of the request for disclosure. The submitter
shall timely submit evidence and argument regarding the claim that the marked material is exempt
from public disclosure. The City shall then proceed with review and decision based on the Oregon
Public Records Law. Nothing in this section abrogates ORS 192.335.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.
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.
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.
Ord. No. 2931
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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 LOC Article 34.04. 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 $100.00 and not more than $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 r osonablc time (no less than 20 and no more than 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 LOC§ 51.01.060. If the operator
has no current registration, no notice shall be required.
3 2. 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 thereupon 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.
Ord. No. 2931
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ATTACHMENT 2
Page 1/30
Chapter 51
UTILITY FACILITIES IN PUBLIC RIGHTS-OF-WAY
Article 51.01
In General.
Sections:
51.01.010 Title.
51.01.020 Purpose and Intent.
51.01.030 Jurisdiction and Management of the Public Rights-of-Way.
51.01.040 Regulatory Fees and Compensation Not a Tax.
51.01.050 Definitions.
51.01.060 Annual Registration.
51.01.070 Licenses.
51.01.080 Construction and Restoration.
51.01.090 Location of Facilities.
51.01.100 Leased Capacity.
51.01.110 Maintenance.
51.01.120 Vacation of Public Rights-of-Way.
51.01.130 Public Rights-of-Way Fee.
51.01.135 Penalties and Interest on Fee.
51.01.140 Audits-; Information Requests.
51.01.150 Insurance and Indemnification.
51.01.160 Compliance.
51.01.170 Confidential/Proprietary Information.
51.01.180 City Permission Requirement.
51.01.190 Obligations of the City.
51.01.200 Violations; Penalties.
51.01.210 Severability and Preemption.
51.01.220 Application to Existing Agreements.
51.01.010 Title.
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 and utilization of 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;
Staff Comment: Better reflects scope of the chapter and deletes unnecessary text.
Ord. No. 2931
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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 utilization 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,owning,controlling, using, leasing capacity
or operating utility facilities in the rights-of-way;
Staff Comment: Clearer statement of the breadth of chapter and the scope of the fee.
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; and
Staff Comment: (1) Delete unnecessary"boundary"text. (2) Move "federal and state law
consistency" to new Section 6.
6. Comply with applicable provisions of state and federal law.
Staff Comment: Moved from subsection 5, and made its own subsection, reflecting that the
City's regulations are to be compliant with 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 w+l-4 shall 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(a) is intended to preempt any state or federal law, rule,
or regulation; and (b) shall be interpreted, deemed, or applied in a manner that authorizes or requires
Ord. No. 2931
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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.
Staff Comment: "Shall" is a defined term, meaning"mandatory."
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 as required 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 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.
Staff Comment: Delete unnecessary text;the scope of use of public ROW is defined by what is
required by this chapter.
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.
Staff Comment: General Note: Underlining added for all terms that are being defined.
CABLE SERVICE -Cable service is to be defined consistent with of 47 U.S.C. Section 522(6), as may be
amended or superseded, and means the one-way transmission to subscribers of(a)video programming,
or(b) 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 City —Mons means the City of Lake Oswego, Oregon, a municipal corporation, and its governing
authority. In addition,the City may refer to all the territory within its corporate boundaries and as such
may change from time to time.
CITY COUNCIL City Council Mons means the City Council of the City of Lake Oswego.
City Engineer means the person holding the position of City Engineer of the City of Lake Oswego or
designee of the City Engineer.
Ord. No. 2931
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Staff comment: New definition to refer to city engineer or designee.
City facilities M ans 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,wastewater sanitary sewer, storm sewer, or water infrastructure
such as related pipes, manholes, catch basins,wires, conduit,valves,vaults, and appurtenances.
Staff comment: Changed reference to better align with other code provisions.
City Manager means the person holding the position of City Manager or the City Manager's designee.
Staff comment: New definition to refer to city manager or designee.
City Standards means all applicable City construction, engineering and design standards and policies
related to utility facilities and work in the rights-of-way,including the Wireless Facilities in the Public
Rights-of-Way Policy, in effect at the time of any work.
Staff comment: New definition to specify the City requirements that apply in this chapter.
COMMi NI! ATION SERVI(ES Communications services M ans 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: (a) cable service; (b) open video system service, as
defined in 47 CFR Section 76; (c) over-the-air radio or television broadcasting to the public-at-large from
facilities licensed by the Federal Communications Commission or any successor thereto; (d) public
communications systems; and (e) direct-to-home satellite service within the meaning of Section 602 of
the Telecommunications Act of 1996, 104-104, 110 Stat. 56(1996).
Staff comment: Citation to Act added, rather than an additional definition.
Days mean calendar days, unless otherwise noted.
Staff comment: For clarity.
Federal Communications Commission means the federal administrative agency,or its lawful
successor,authorized to regulate and oversee telecommunication carriers, services and providers on a
national level.
Staff comment: New definition, used in LOC 51.01.040 "communications services."
Gross Revenue means any and all amounts, of any kind, nature or form,without deduction for
expense, less net uncollectibles,derived from the operation of utility facilities in the City(including
revenue derived from any leases or other agreements allowing use of utility facilities to other
Ord. No. 2931
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person(s)) or the provision of utility service(s) in the City,subject to all applicable limitation in federal
and state law.Gross revenues shall not include(1)any tax,fee,or assessment imposed on customers
by any municipality,state or other governmental unit and collected by the utility service operator or
utility service provider for pass-through to a government agency or(2)sales of bonds, mortgages,or
other evidence of indebtedness,securities, or stocks.
Staff comment: As compensation is tied to a percentage of the utility service provider's gross
revenue (used in LOC 51.01.140), it is important to have a definition of that term. This
definition provides greater clarity,to avoid argument.
LICENSE License Means means the authorization granted by the City to a utility services operator
pursuant to this chapter.
Licensee means any person that holds a valid License issued by the City under this chapter.
Staff comment: Obvious definition, but added for clarity.Term is currently used throughout
the chapter.
PERSON Person Mans 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.
Staff comment: Hyphen added to "co-partnership."
PUBLIC COMMUNICATIONS SYSTEM Public communications system M ans 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 ORS 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 RIGHTS OF WAY Public rights-of-way or Right-of-way_M ans 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,public utility
easements, and al-I-other public ways or areas generally open to the public for vehicular travel,
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.
Staff comment: Clarifies that the areas included in the "public rights-of-way" are those stated
in this definition and that public utility easements are included in the definition;trails, paths and
bike lanes have been deleted because they may not be included in the definition if they are not
part of the dedicated public rights-of-way.
Ord. No. 2931
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PUBLIC UTILITY EASEMENT Public utility easement Mons 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.
STATE State Meow:,means the state of Oregon.
STREETS OR CITY STREETS Streets or City streets Weans 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 Utility facility Mons means any physical component of a utility service
system, including but not limited to the poles, pipes, mainlines, 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.
Staff comment: To distinguish between "city facilities" and the utility service provider's
facilities,the use of the unspecified "facility" has been changed throughout to "utility facility"
where that is intended.
UTILITY SERVICE Utility service Wens means the provision, or intent to provide, 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,
wireless communications services, or 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 owned or operated by the City of Lake Oswego.
Staff comment: (1)Added "or intent to provide" because the chapter requires license or
registration at the onset, as they intend to provide service, rather than only upon actually
providing service. (2) Expands scope to include wireless providers, where they have or use
facilities in the ROW. (3) Clarifies what "by" means: owned or operated by the City.
UTILITY SERVICE OPERATOR OR OPERATOR—Utility service operator or operator Means means any
person who owns, places, operates, or maintains a utility facility within the City, except for the City of
Lake Oswego.
Staff comment: City owned and operated services already excluded under"utility service"
definition and thus do not fall under the definition of"utility facility."
Utility service provider or provider means any person who provides utility service within the City,
regardless of whether or not the person owns the utility facilities used to provide the utility services.
Ord. No. 2931
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Staff comment: New definition but was used extensively in current chapter; includes any
utility that provides utility services in the City (to City customers) whether they directly own
utility facilities or lease/ use utility facilities of others). Scope corresponds to LOC 51.01.060.
Wireless communications services means any wireless service using Federal Communications
Commission-licensed or unlicensed spectrum including without limitation any personal wireless
services, as defined in 47 U.S.C. §332(c)(7)(C).
Staff comment: New definition, used in the definition of"utility service."
WORK—Work Mcan:,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; Exemption. 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 person
within the City as of the effective date of this chapter shall required to register pursuant to this section
shall register within 45 days of the effective date of this chapter,provided,that a utility service
operator with an unexpired City franchise agreement in effect and in good standing shall register
within 45 days of the expiration of the franchise.
2. Annual Registration.After registering with the City under 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.
Staff comment: (1) Exempts those utility service providers that have a franchise agreement
with the City from the annual registration requirement. (2) Deleted reference to the standard
for setting of fees, as the setting of fees is governed by state and federal law, so there is no need
for local code to impose either same or different standard.
Ord. No. 2931
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51.01.070 Licenses.
1. Every person who owns,controls, or uses places, operates or maintains utility facilities in the
public rights-of-way must shall have at all times a license under this chapter from the City. Every person
shall obtain a license prior to conducting any work or 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.
Staff comment: These amendments make this subsection consistent with the definition of
"utility service operator."
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 45 days of the later of(a) the
effective date of this chapter, or(b)the expiration of a valid franchise from the City.
The license requirement in subsection (1)shall not apply to those utility service operators
with an unexpired City franchise agreement in effect and in good standing, provided,that every such
franchised utility service operator shall apply for a license under this chapter(or obtain a franchise per
LOC 51.01.070(17))within 45 days of the expiration of a valid franchise from the City.
Staff comment: Reformatting subsection so it applies to only franchise utility holders.
Deleted transition date for unfranchised utility holders but recognizes that a successor franchise
is an option under LOC 51.01.070(17).
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, at no cost to the City,that allows the
City to easily 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/or
other persons, 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 federal law, the City Engineer Manager 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 Manager finds
necessary or appropriate for processing applications, which shall be effective immediately upon
publication.
Staff comment: (1) Expressly states that the applicant is to provide materials for application at
no cost to the City. (2) Changes reference of City Engineer to the now defined "City Manager,"
which includes staff to whom the City Manager has delegated this authority.
4. License Application Fee.The application shall be accompanied by a nonrefundable 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.
Ord. No. 2931
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Staff comment: Deleted reference to the standard for setting of fees, as the setting of fees is
governed by state and federal law, so there is no need for local code to impose either same or
different standard.
5. Determination by City.The City shall issue, within a reasonable time 60 days after having
received a duly filed, complete 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.
Staff comment: Specifies the amount of time the City has to issue a decision after receiving a
complete license application.
6. Changes to information contained in the License application. Within thirty(30) days of a
change to any material information contained in the license application during the term of the license
or any renewal,the licensee shall notify the City in writing of such change(s).
Staff comment: New provision to ensure the City is notified of changes to information
provided in a license application throughout the license term.
6,7. 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 and provide utility services 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 of and 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 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 intended use or proposed utilization. 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
Ord. No. 2931
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implied,with respect to the physical, structural or environmental condition of the public rights-of-
way, and the present or future suitability of the public rights-of-way for the licensee's use.
Staff comment: (1)We are not licensing any specific ROW. (2) Broadens exclusion of warranty
and representation to their intended or proposed utilization of the ROW.
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. 8. Term of License. Subject to the termination provisions in subsection{13)(14) of this section,
the license granted pursuant to this chapter will remain in effect for a tcrm of five years. unless
otherwise stated in the license, until expiration,which is determined as follows:
a. If issued between January 1 and June 30,the license shall expire on July 1, 12:01 a.m. after
the fifth anniversary of issuance; or
b. If issued between July 1 and December 31,the license shall expire on January 1, 12:01 a.m.
after the fifth anniversary of issuance.
Staff comment: For administrative tracking purposes by City staff and the utility service
provider, staff recommends the license expire either at the end of June or December, after five
years.
8 9. 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.
910. Reservation of City Rights.
a. 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 b. If any person'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 the person's utility 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.
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Staff comment: Changed from "licensee's" to "person's"to ensure that the City can require
removal or relocation regardless of whether the utility has obtained a license.
4011. 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 any fee owed to the
City by a third party using a utility service operator's facilities.
Staff comment: Clarification that an operator is not required to pay any fee that may be owed
to the City by a third party using the utility service operator's facilities.
4412. 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 its prior written consent.A transfer, sublicense, or assignment knr+l-4 shall 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 laws to approve such transfer,
sublicense, or assignment.
Staff comment: "Shall" is a defined term meaning mandatory; "laws" was inadvertently
omitted in the original chapter.
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.
Staff comment: (1)The reference to "all facilities" may be read to limit the obligations of the
transferee, which is not the intent. (2)The term "sublicensee" in the phrase "transfer,
sublicensee, or assignment" should be "sublicense."
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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.
4413. Renewal. At least 90, but no more than 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 Manager.The City shall review the application and grant or deny the license within 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.
Staff comment: (1) "Days" is now defined as calendar days. (2) Changes reference of City
Engineer to the now defined "City Manager," which includes staff to whom the City Manager
has delegated this authority.
4-3 14. Revocation or 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 work 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.
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;
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iii. The harm that resulted;
iv. The operator's licensee's history of compliance; and
v. The operator's licensee's cooperation in discovering, admitting, and curing the violation.
Staff comment: (1)Since this is about revocation of a license,the correct term for the holder of
the license is licensee. (2) Used the defined term "work" rather than "construction."
c. The City shall not give a refund or credit of any kind for revoked or terminated licenses.
Staff comment: Duplicates "no refund" policy that applies when licensees surrender a license
(Sec. 16).
4415. Notice and Cure. The City Manager shall give the operator licensee 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 30 days for the licensee to demonstrate that the licensee has remained in compliance,that the
operator licensee 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 licensee is in the process of curing a violation or noncompliance,the operator licensee
must demonstrate that it the licensee acted promptly and continues to actively work toward
compliance. If the operator licensee does not respond within the reasonable time stated in the notice,
the City Engineer Manager 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.
Staff comment: Because this is about revocation of a license,the correct term for the holder
of the license is licensee.
16. Termination by Licensee.
a. If a licensee ceases to be required to have a license,the licensee may terminate the license
upon a 30 day notice to the City Manager. Licensee may reapply for a license at any time.The
City will not give any refunds or credits of any kind for licenses terminated by the licensee.
b. Within thirty(30)days after surrendering a license,the licensee shall file a final remittance
form with the City Manager stating,"final remittance"and shall remit any funds due.
c. Upon surrendering a license,the licensee shall file a statement that it has removed,or will
remove within 60 days,any and all of licensee's facilities from the public rights-of-way, per
LOC 51.01.090. Upon removal of all facilities,the licensee is no longer is subject to the
provisions of this chapter.
Staff comment: Establishes process for a licensee to terminate the license.
1 17. Franchise Agreements. If the public interest warrants, as determined by the City Council in its
sole and absolute discretion, the City and utility service operator may enter into a written franchise
Ord. No. 2931
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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.The person requesting a franchise agreement in lieu of a license shall pay a non-refundable
fee.set by resolution of City Council,for the purpose of covering the City costs of negotiation,which
the City may require prior to commencing franchise negotiations.
Staff comment: Clarifies that a person asking for a franchise will be subject to an application fee
to cover the additional costs for franchise negotiations.
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 utility facilities in public rights-of-way subject to this chapter.All such policies, standards,
specifications, and other guidelines_
(a) must Shall be consistent, and not in conflict with,the provisions of state,federal, and
local law, which includes this chapter and the Wireless Facilities in the Public Rights-of-Way Policy; and
(b) 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.
Staff comment: (1) Subsection format added. (2) "Shall" is a defined term for mandatory.
2. Preconstruction Approval. Prior to the commencement of any construction, extension, or
relocation of any of licensee's facilities,work upon, over, under, or across any of the streets, highways,
or other public rights-of-way within the jurisdiction of the City,the licensee person intending to
perform the work shall advise the City's Engineering Department City Engineer 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 utility 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 City standards. Not less than 48
hours before commencement of any work that might affect City utilities, licensee the person intending
to perform the work shall contact the Oregon Utility Notification Center for the purpose of utility
location.The location of all such utility 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 standards then in effect.
Staff comment: (1) Delete "licensee" so it applies to persons that have not obtained the
required license. (2) Use defined term "work." (3) Use new definition for all City requirements
(City standards).
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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 Engineer 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, any such work
unless the person is a licensee or has a current franchise with the City and all applicable fees have been
paid.
Staff comment: (1) Uses the defined term "work." (2) Revised text shortens text but still
requires a person to be a licensee before working on utility facilities in the ROW, and paying any
fees.
4. Applications for Permits.Applications for permits to construct utility facilities shall be submitted
upon forms to be provided by the City Manager and shall comply with LOC-42.04.110 and, if
applicable,the Wireless Facilities in the Public Rights-of-Way Policy,and be accompanied by drawings,
plans, and specifications in sufficient detail to demonstrate:
Staff comment: (1) Used the defined term "City Manager." (2) Added a reference to the City's
wireless standards that apply to wireless facilities installed in the rights-of-way.
a. That the utility facilities wi-14 shall be constructed in accordance with City standards and all
other applicable laws, codes, rules, and regulations.
b. The location and route of all utility facilities to be installed above ground or on existing utility
poles and, if the private utility service 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 material,in accordance with
City standards.
Staff comment: There is no necessity that the replacement be of like kind, as long as whatever
is put up complies with Engineering/Public Works requirements. (Note: in 4.b, "City Engineer" is
left as is, rather than changing to "City Manager" because of the highly specific nature of
constructing new utility poles in the ROW.)
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
City facilities or other utility 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.
Staff comment: Clarifies the reference to "facilities."
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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 work.The construction schedule is subject to approval by the
Engineering Department City Engneer. Subject to any restrictions in state or federal law,the City
Engineer Manager 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 Manager finds necessary or appropriate for processing applications, which shall be
effective immediately upon publication.
Staff comment: Uses defined terms "work," "City Engineer," and "City Manager."
6. Prior to issuance of any street opening permit,the applicant shall pay the applicable permit fees
in the amount determined by resolution of the City Council.
Staff comment: (1) Removes reference to "street opening" that is not used in other
references to permits in this chapter. (2) Clarifies that all applicable fees must be paid.
7. If satisfied that the application, plans, and documents submitted comply with all requirements of
this chapter,the Engineering Department City Engineer shall issue a permit authorizing construction of
the utility facilities the work in the rights-of-way, 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).
Staff comment: Uses defined terms "work" and "City Engineer."
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 City
Engineer not less than we 14 business days in advance of any excavation or construction work in the
public rights-of-way.
Staff comment: Time changed to match other permitting notices for street work, e.g., 14 days'
notice to process street cut permits and traffic control plans.
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 City 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.
Staff comment: Broadens reference to those who must be provided access to the work site.
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.
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Staff comment: Removes duplicative provision in current chapter.
44-10. 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}including City
standards, shall be removed or corrected at the sole expense of the permittee.The City Manager is
authorized to issue stop work orders in order to assure compliance.
Staff comment: "City standards" is now a defined term to include all City requirements.
4-4 11. The permittee shall promptly complete all construction activities work 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 private property.All construction work
within the public rights-of-way, including without limitation any restoration work, must be completed
within 120 days of the date the construction permit is issued unless the City Engineer has approved an
extension or an alternate schedule.
Staff comment: Uses defined terms "work" and removes unnecessary reference to "City"
public rights-of-way.
43 12. Injury to Persons or Property. An operator shall preserve and protect from injury or damage
other operators' City facilities and other utility 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, City facilities and other utility
facilities that may be subject to damage from the permitted work. An operator shall_
(a) Uc+se suitable barricades,flags,flagging attendants, lights,flares, and other measures as
required for the safety of all members of the general public;
(b) Ceomply with all applicable Americans with Disabilities Act requirements; and
(c) cComply with all the requirements of the Manual on Uniform Traffic Control Devices
(MUTCD).
Staff comment: (1) Clarify that former use of"utilities" included city facilities as well as other
utilities'facilities. (2). Subsection format.
4413. 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
Ord. No. 2931
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federal, state and local laws, codes, ordinances, rules, and regulations, including City standards,
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 days
and not exceeding 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 g
documentation for the costs incurred,the operator shall reimburse the City within 30 days for the
costs the City incurred.
Staff comment: (1)Added a reference to the defined term "City standards." (2) Deleted
code requirement for"reasonable documentation"to avoid ambiguity about required
documentation.
4-5 14. Inspection. Every operator's facilities utility facility 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 federal,state and local City laws,codes, ordinances, rules and regulations,including
the City standards. 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 utility facilities and the restoration of the public rights-
of-way comply with the terms of this chapter and applicable federal,state and City local laws,codes,
ordinances, rules and regulations,including the City standards.
Staff comment: Uses new definitions of"City standards" and adds references to federal laws.
4 15. Coordination of Construction.All operators shall make a good faith effort to both cooperate
with and coordinate their construction work schedules with those of the City and other users of the
public rights-of-way.
a. Prior to January 1 of each year, operators shall provide the City Manager with a schedule of
known proposed construction work 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 Manager annually, or as determined
by the City Manager,to schedule and coordinate construction work in the public rights-of-way.
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c. All work construction locations, activities, and schedules within the public rights-of-way shall
be coordinated as ordered by the City Manager to minimize public inconvenience, disruption, and
damages to persons and property.
Staff comment: Uses new definitions of"City Manager" and "work."
51.01.090 Location of Utility Facilities.
1. Location of Utility Facilities.
a. Unless otherwise agreed to in writing by the City Manager, 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 utility facilities underground at its own expense.
a b. 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 utility 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 Manager and
consistent with applicable state and federal law.
la c. The requirements in this section do not apply to antennas, pedestals, cabinets, or other
above-ground equipment of any utility service provider for which the City has approved above-
ground placement, or utility facilities used for transmission of electric energy at nominal voltages
in excess of thirty-five thousand (35,000)volts.
Staff comment: (1) Exempts high voltage lines from applicability of this subsection because
they do not have good insulators and it would be dangerous to underground such lines. (2)
Clarifies that the exemption for above-ground equipment requires the City's approval. (3) Uses
new definition of"City Manager" and "utility facilities."
2. Map of Location of Utility Facilities. Utility service operators shall provide annually by
February 1, at no cost to the City, a comprehensive map showing the location of all utility facilities in
the City. Such map shall be provided in a format acceptable to the City Manager(e.g.,Shapefile or
Geodatabase),with accompanying data sufficient for the City Manager to determine the exact
location of utility facilities. The map shall identify any changes that occurred from the prior map on
file.
Staff comment: New subsection to ensure that operators provide the City with maps showing
the location of their facilities in a format that is usable by the City.
3. Interference with the Public Rights-of-Way. No operator or other person may locate or
maintain utilit 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
Ord. No. 2931
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regulations,which includes without limitation any policies,standards, specifications, and other
guidelines adopted by the City Engineer pursuant to this chapter. Utility facilities shall not be located in
areas of restricted sight distance or interfere with the proper function of traffic control signs,signals,
lighting,or other devices that affect traffic operation. All utilization of the public rights-of-way shall
be consistent with City standards.
Staff comment: Clarifies what interference may constitute interference; uses new "City
standards"term.
34. 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
utility facilities are not required to be located underground pursuant to subsection (1)(bal of this
section.
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.
c. The City Manager 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 utility facilities. If an operator fails to remove, relocate,
change, alter or underground any utility facility as requested by the City Manager and by the date
established by the City Manager, 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 Manager 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 Manager with reasonable supporting
documentation, the operator shall reimburse the City within 30 days for the costs the City incurred.
Staff comment: (1) Uses the new term "City Manager." (2) Deleted code requirement for
"reasonable documentation" to avoid ambiguity about required documentation.
4 5. Removal of Unauthorized Utility Facilities.
a. Unless otherwise agreed to in writing by the City, within 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 utility facility and restore the public right-of-way to City
standards.
b. A utility system or utility facility is unauthorized under any of the following circumstances:
Ord. No. 2931
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i. The utility facility is outside the scope of authority granted by the City under the license,
franchise or other written agreement.This includes utility facilities that were never licensed or
franchised and utility facilities that were once licensed or franchised but for which the license
or franchise has expired or been terminated.This does not include any utility facility for which
the City has provided written authorization for abandonment in place.
Staff comment: Use of defined term "utility facility."
ii. The utility facility has been abandoned and the City has not provided written
authorization for abandonment in place. A utility facility is abandoned if it is not in use and is
not planned for further use. A utility facility wi14 shall be presumed abandoned if it is not used
for a period of one year.An operator may attempt to overcome this presumption by presenting
plans for future use of the utility facility to the City, which will determine application of the
presumption in its sole discretion.
Staff comment: Use of defined term "shall" as mandatory and defined term "utility facility."
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 30 days of the City Manager sending written notice of such violation, unless the
City Manager extends such time period in writing.
Staff comment: Uses the new term "City Manager."
§6. Removal by City.
a. The City retains the right and privilege to cut or move any utility facilities of any operator or
similar entity located within the public rights-of-way of the City,without notice, as the City
Manager may determine to be necessary, appropriate or useful in response to a public health or
safety emergency.The City shall use qualified personnel or contractors consistent with applicable
state and federal safety laws and regulations to the extent reasonably practicable without impeding
the City's response to the emergency.
Staff comment: Uses defined terms "utility facilities" and "City Manager."
b. If the operator fails to remove any utility facility when required to do so under this chapter,
the City may remove the utility 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 including the administrative, personnel,collection, and
legal costs incurred by the City in removing the utility 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 30 days.The obligation to remove shall
survive the termination of the license or franchise.
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Staff comment: More clarity on what the "administrative" costs could be in obtaining the
reimbursement.
c. The City is not liable to any operator person for any damage to utility facilities, or for any
consequential losses resulting directly or indirectly from any damage caused by the City's actions,e-F
its including actions of any City contractor, in removing, relocating, altering, or undergrounding the
utility facilities, unless such damage arises directly from the City's sole active negligence or willful
misconduct.
Staff comment: Expands City exclusion of liability to broadest possible range of claimants, not
just a utility service provider.
6 7. Engineering Designs and Plans.The operator shall provide the City with as-built plans or system
maps of their utility facilities, upon request,for the purpose of design of other City infrastructure or to
confirm existing conditions.
51.01.100 Leased Capacity.
An operator may lease or otherwise provide capacity on or in its systems to others ("lessees"); provided,
that:
1. the 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.
3.2. the 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 utility facility; and
4 3. the The operator maintains control over and responsibility for the utility facility at all times.
Nothing in this section relieves or lessens the restrictions or requirements of this chapter.
Staff comment: Removes requirement that a lessee obtain a license, which is not required if
the lessee does not own facilities;formats subsections.
51.01.110 Maintenance.
1. Every operator shall install and maintain all utility facilities in a manner that complies with
applicable federal, state and local laws, rules, regulations,an-el-policies,and City standards.The operator
shall, at its own expense, repair and maintain utility facilities from time to time as may be necessary to
accomplish this purpose.
2. If, after written notice from the City Manager of the need for repair or maintenance, an operator
fails to repair and maintain utility facilities as requested by the City Manager and by the date
established by the City Manager,the City may perform such repair or maintenance using qualified
personnel or contractors at the operator's sole expense. Upon receipt of a detailed an invoice from the
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City Manager,with reasonable supporting documentation, the operator shall reimburse the City for the
costs the City incurred within 30 days.
Staff comment: (1) Uses new defined term "City Manager." (2) Changes from "detailed
invoice" to invoice with reasonable documentation consistent with prior invoicing requirement.
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 utility facilities from the vacated public rights-of-way
unless: (a)the City reserves 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(b)the operator
obtains an easement from the owner for its utility facilities.
2. If the operator fails to remove its utilit facilities within 30 days after a public right-of-way is
vacated, or as otherwise directed or agreed to in writing by the City Manager, the City may remove the
utility facilities using qualified workers in accordance with state and fcdcral laws and regulations at the
operator's sole expense. Upon receipt of a detailed invoice from thc City, thc operator shall reimburse
the City for the costs the City incurred within 30 days in accordance with LOC 51.01.090(6).
Staff Comment: (1) Uses new defined term "City Manager." (2) References back to the
"Removal by City" provision in LOC 51.01.090(6)for consistency of process.
51.01.130 Public Rights-of-Way Fee.
1. Rights-of-Way Fee.
I a. Every person that owns,controls,places,operates or uses maintains utility facilities in the
City's public rights-of-way,regardless of whether customers within the City arc served by those
facilities, and every person that utilizes utility facilities to provide utility service(s) in the City,
whether or not the person owns the utility facilities utilized to provide the utility service(s),shall
pay the public rights-of-way fee for every utility service provided in the amount must pay a fcc a:,
determined by resolution of the City Council.
b. A person that both owns, places,operates or maintains utility facilities in the City's public
rights-of-way and utilizes utility facilities to provide utility service(s)in the City shall deduct from
the total amount due pursuant to subsection (1)(a)the lower of the two fees imposed pursuant
to that subsection or,in the event the fees are the same,deduct from the total amount due the
full amount of one of the fees.
c. Fees required by subsection(1)(a)shall be reduced by any franchise fees, but in no case
shall be less than zero dollars($0).
Staff comment: (1) More clearly states that there are two different fees, one imposed on facility
owners, and one imposed on service providers. (2) Clarifies that an entity that is a facility owner
Ord. No. 2931
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and a service provider will deduct one of the fees from the total amount due to ensure they do
not pay twice.
2. a. Unless otherwise agreed to in writing by the City Manager,the rights-of-way fee shall be
paid quarterly, in arrears, for ach quarter during the term of the license within 30 days after the end of
each calendar quarter and shall be accompanied by an accounting account of gross revenues, if
applicable, and other information sufficient to illustrate the a calculation of the amount payable.The
operator shall pay simple interest at a rate of 9%or the highest rate permitted under applicable law per
yc\ar for any payment made after the due date.The City Manager may issue a remittance form,and if
so issued,the utility service operator or utility service provider shall complete the form when
submitting payment.
b. Upon request by the City Manager,the utility service operator or utility service
provider shall provide,at no cost to the City,any additional reports or information the City Manager
deems necessary, in the City Manager's sole discretion,to verify the amount due from the operator or
provider. Such information may include, but is not limited to:chart of accounts;total revenues by
categories and dates; list of products and services; narrative documenting calculation;details on
number of customers within the City;or any other information needed for the City Manager to easily
verify compliance.
c. No acceptance of any payment shall be construed as accord that the amount paid is in
fact the correct amount,nor shall such acceptance of payment be construed as a release of any claim
the City may have for further or additional sums payable.
Staff comment: (1) Uses new defined term "City Manager." (2) Requires entities to provide
information with payment to show calculation of amount due. (3) Permits City Manager to ask
for additional information to verify correct calculation of fee. (4) Interest provision deleted
in this section; new Section created to address Penalties and Interest. (5) Expressly states
that acceptance of the fee amount does not waive right to recalculate if additional fee amount is
later determined to be due, e.g., audit.
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 persons
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 person 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.
Staff comment: Uses the broader term "persons" because bother utility service operators and
utility service providers are subject to fees under this section, so "operators" is too narrow.
50.01.135 Penalties and Interest on Fee.
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1. Penalties and interest imposed by this section are in addition to any penalties that may be
assessed in this chapter or under other ordinances or regulations of the City.
2. Any person who has not submitted the required remittance forms or remitted the correct fees
when due as provided in LOC 51.01.130 shall pay a penalty listed below in addition to the
amount due:
a. First occurrence during any one calendar year: 10%of the amount owed or$25.00,
whichever is greater.
b. Second occurrence during any one calendar year: 15%of the amount owed or$50.00,
whichever is greater.
c. Third occurrence during any one calendar year:20%of the amount owed or$75.00,
whichever is greater.
d. Fourth occurrence during any one calendar year: 25%of the amount owed or$100.00,
whichever is greater.
3. If the nonpayment or underpayment of any fee due is because of intent to evade the
provisions hereof,an additional penalty of 25%of the amount owed or$500.00 whichever is
greater,shall be added thereto in addition to other penalties provided in this chapter and as
allowed by law. In the absence of an explanation for nonpayment or underpayment due to
the operator or provider's negligence or financial inability to pay any fee due,a rebuttable
presumption of intent to evade obligation exists.
4. In addition to the penalties imposed,any person who fails to remit any fee amount when due
shall pay interest at the rate of 1.5%per month or fractions thereof,without proration for
portions of a month,on the total amount due(including penalties),from the date that the
remittance first became delinquent,until received by the City.
5. Every penalty imposed,and such interest as accrues under the provision of this section,shall
be merged with,and become part of,the fee required to be paid.
6. The City Manager,in their sole discretion,shall have the authority to reduce or waive the
penalties and interest due under this section.
Staff comment: Increases current delinquent interest of 9% per annum to 1.5% per month;
provides for graduated penalties for nonpayment and additional penalty if nonpayment or
underpayment was to evade obligation to pay.
51.01.140 Audits; Information Request.
1. The City Manager may audit any operator or request information from any person subject to
this chapter at any time to review or verify compliance with the requirements of this chapter,
including but not limited to payment of any applicable fee, rights-of-way fee or franchise fee.The City
Manager will shall make a written request for audit or information and the operator person must
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comply with the request,at no cost to the City,within 30 days of receipt of the CitN45 City Manager's
written request, or such other time as agreed to in writing.
Staff comment: (1) Uses new definition of"City Manager." (2)Allows review of information
beyond a formal audit that had been a separate subsection.
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.
Staff comment: Now addressed in subsection (1).
3 2. Every operator shall make available for inspection by the City Manager at reasonable times and
intervals all maps, records, books, diagrams, plans and other documents maintained by the operator
with respect to its utility facilities within the public rights-of-way or public utility asemcnts.Access shall
be provided within the City unless prior arrangement for access elsewhere has been made with the City
Manager.
Staff comment: (1) Uses new definition of"City Manager." (2) Reference to "public utility
easement" is removed because it is included in the definition of"public rights-of-way."
3. In the event an audit or review finds that a utility service operator or utility service provider is
not in compliance with the provisions of this chapter,the City Manager shall present a report to the
utility service operator or utility service provider of the findings of the audit or review. The utility
service operator or utility service provider shall have 30 days to review the report and to file any
objection to the report with the City Manager. If no objection is filed within the 30-day period,the
findings of the report shall be final. If the utility service operator or utility service provider objects
to the findings,the City Manager and utility service operator or utility service provider shall meet
within the City within 30 days of the filing of the objection and review the relevant information in an
effort to mutually agree upon the findings or otherwise resolve the matters raised in the audit or
report. If the utility service operator or utility service provider and City Manager are unable to
mutually agree,the dispute shall be submitted to arbitration with the Arbitration Service of Portland
(or such other arbitration service designated by the City Manager)within 30 days after the utility
service operator and utility service provider and City Manager are not able to mutually agree. The
utility service operator or utility service provider and City Manager may agree upon an alternative
method or timeline for dispute resolution. The cost of arbitration shall be borne equally by the
utility service operator or utility service provider and the City.
Staff comment: Establishes dispute resolution process.
4. If the City Manager's audit or review of the books, records and other documents or information
of the operator or utility service provider demonstrates that the operator or provider has not paid or
has underpaid the rights-of-way fee or franchise fees by 3%2%or more in any one y ar twelve month
period,the operator or utility service provider shall reimburse the City for the cost of the audit or
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review, in addition to any interest or penalty owed as provided by this chapter or as specified in a
franchise agreement.
Staff comments: (1) Uses new"City Manager" definition. (2) Expands scope to include those
that have not paid, rather than just underpaid a fee. (3) Reduces discrepancy percentage to
trigger requirement for utility service provider to pay the City's cost of audit/review, and defines
a "year"for that trigger to be the preceding 12 month period,to clarify it is not on a calendar
year. (4) Reference includes penalties.
5. Any nonpayment or underpayment, including any interest, penalty or cost of review or audit
cost rcimburscmcnt shall be paid within 30 days of the City Manager's notice to the operator or utility
service provider of such nonpayment or underpayment.
Staff comment: (1) Expanded to include nonpayment. (2) Expanded to include review that is
less than a formal audit. (3) Uses new"City Manager" definition.
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 at least equal the maximum limits of liability imposed on municipalities of
the state of Oregon under the Oregon Tort Claims ActjORS 30.260-.300).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 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 of the above coverage.
Staff comment: Reference to statutory provision that sets the maximum tort limits.
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 Manager, certifying the coverage required above.
2. Indemnification.
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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
service operator or its affiliates, officers, employees, agents, contractors, subcontractors or lessees
in the construction, operation, maintenance, repair or removal of its utility facilities,work in the
public rights-of-way.and or in providing or offering utility services over the utility facilities,
whether such acts or omissions are authorized, allowed or prohibited by this chapter or by a
franchise agreement.The acceptance of a license under LOC§51.01.070 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 utility facilities in the public rights-of-
way or casements in a timely manner, except to the extent the operator's failure arises directly
from the City's negligence or willful misconduct.
Staff comment: (1) Incorporated the defined term "work." (2) Deleted "utility easement"
because easements that utility service operators are permitted to use are incorporated into the
definition of"public rights-of-way."
51.01.160 Compliance.
Every operator person subject to this chapter 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, including the City standards, heretofore or
hereafter adopted or established during the term of any license granted under this chapter.
Staff comment: (1) Uses"every person subject to this chapter"for broader reach than
"operator." (2) Uses new definition of"City standards." (3). Removes limitation that
compliance is only required if a license is obtained,to provide broadest reach to all utility
service operators and providers, whether they have a license or not. Of course,this chapter
requires they all have a license, but no disadvantage in using broadest term.
51.01.170 Confidential/Proprietary Information.
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 r asonable 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 arc cl arly marked as
confidential by the person at the time of disclosure to the City exempt from public disclosure under
the Oregon Public Records Law(ORS 192.311 et seq),the person shall plainly mark each book, record,
map or information with "Claim of Exemption from Public Disclosure." If the City receives a public
Ord. No. 2931
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records request to inspect the marked material,the City shall,to the extent reasonably possible,
notify the person who submitted the marked material of the request for disclosure. The submitter
shall timely submit evidence and argument regarding the claim that the marked material is exempt
from public disclosure. The City shall then proceed with review and decision based on the Oregon
Public Records Law. Nothing in this section abrogates ORS 192.335.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.
Staff comment: Specifies manner person is required to mark material submitted as exempt
from public disclosure and clarifies the method City Manager will use for review and decision,
per the Oregon Public Records Law: notify owner of material of request for disclosure, and allow
time for response by owner to show how the statutory criteria for nondisclosure of marked
material is met. This is the same method the City uses for materials submitted to the City for
contract solicitations. ORS 192.335 grants immunity to the City following good faith review and
disclosure of material.
51.01.180 City Permission Requirement.
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.
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 LOC Article 34.04. 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 $100.00 and not more than $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 r asonable time (no less than 20 and no more than 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 LOC§ 51.01.060. If the operator
has no current registration, no notice shall be required.
Staff comment: Deletes special notice process required prior to issuance of a civil citation
because LOC Article 34.04 includes the process to be used.
3 2. 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
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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 thereupon 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.
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Page 30
ATTACHMENT 3
ORDINANCE 2965
A SPECIAL ORDINANCE OF THE CITY OF LAKE OSWEGO AMENDING REGULATIONS FOR WIRELESS
FACILITIES IN THE PUBLIC RIGHTS OF WAY.
WHEREAS,the City of Lake Oswego desires to encourage wireless infrastructure investment by providing
a fair and predictable process for the deployment of small wireless facilities, while enabling the City to
promote the management of the rights-of-way in the overall interests of the public health, safety, and
welfare; and
WHEREAS,the City recognizes that wireless facilities are needed to deliver wireless access and capacity to
advanced technology, broadband and first responder services to homes, and businesses, as well as
health care, public safety and educational services providers within the City; and
WHEREAS, the City recognizes that the wireless industry needs wireless facilities deployed in the public
rights-of-way; and
WHEREAS, on June 18, 2019, the City adopted right-of-way regulations for wireless facilities through
Ordinance 2820; and
WHEREAS,the City desires to update the right-of-way regulations for wireless facilities to ensure ongoing
consistency with local, state and federal laws, standards and requirements, including Lake Oswego
Municipal Code Chapter 51, and to correct minor typographical errors.
NOW,THEREFORE,
THE CITY OF LAKE OSWEGO ORDAINS AS FOLLOWS:
Section 1. The policy attached as Exhibit A to this ordinance, titled "Wireless Facilities in the Public
Rights-of-Way," is hereby adopted as regulations establishing standards and procedures for wireless
facilities deployment, construction, installation, collocation, modification, operation, relocation and
removal in the public rights-of-way within the City's territorial boundaries.
Section 2. Effective Date.As provided in Section 35.C. of the Lake Oswego Charter,this ordinance shall
take effect on the 30th day following enactment.
Enacted at the regular meeting of the City Council of the City of Lake Oswego on September 16, 2025.
//Signatures on Page 2 of 2
Ordinance 2965
Page 1 of 2
AYES:
NOES:
EXCUSED:
ABSTAIN:
Joe Buck, Mayor
ATTEST:
Laural Casey, City Recorder
APPROVED AS TO FORM:
Ellen Osoinach,City Attorney
Ordinance 2965
Page 1 of 2
Exhibit A to Ordinance 2965
CITY OF LAKE OSWEGO
CITY POLICY Adopted by City Engineer: January 11, 2019
Revised &Adopted by City Council:June 2019
Revised & Adopted by City Council:
September 16, 2025
GENERAL SUBJECT: WIRELESS FACILITIES IN THE PUBLIC RIGHTS-OF-WAY
SECTION 1. GENERAL PROVISIONS 2
SECTION 1.1. PURPOSE AND INTENT 2
SECTION 1.2. GENERAL DEFINITIONS 2
SECTION 1.3. WIRELESS FACILITIES IN THE PUBLIC RIGHTS OF WAY GENERALLY 3
SECTION 1.4. STANDARD CONDITIONS OF APPROVAL FOR WIRELESS FACILITIES 3
SECTION 2. ELIGIBLE FACILITIES REQUESTS AS DEFINED BY SECTION 6409 WITHIN THE
PUBLIC RIGHTS-OF-WAY 9
SECTION 2.1. APPLICABILITY; REQUIRED PERMITS AND APPROVALS 9
SECTION 2.2. SPECIALIZED DEFINITIONS 10
SECTION 2.3. SECTION 6409 APPLICATIONS, SUBMITTALS AND COMPLETENESS REVIEW 10
SECTION 2.4. APPROVALS AND DENIALS; NOTICES 12
SECTION 2.5. SPECIALIZED STANDARD CONDITIONS FOR SECTION 6409 APPROVALS 13
SECTION 3. SMALL WIRELESS FACILITIES WITHIN THE PUBLIC RIGHTS-OF-WAY 14
SECTION 3.1. APPLICABILITY; REQUIRED PERMITS AND APPROVALS 14
SECTION 3.2. SPECIALIZED DEFINITIONS 15
SECTION 3.3. SMALL WIRELESS FACILITY PERMIT APPLICATION REQUIREMENTS 16
SECTION 3 4. SMALL WIRELESS FACILITY PERMIT APPLICATION SUBMITTAL PROCEDURES 17
SECTION 3.5. APPROVALS AND DENIALS; NOTICES 18
SECTION 3.6. SPECIALIZED STANDARD CONDITIONS FOR SMALL WIRELESS FACILITIES 19
SECTION 3.7. LOCATION REQUIREMENTS 20
SECTION 3.8. DESIGN STANDARDS 22
SECTION 3.9. PREAPPROVED DESIGNS 30
Page 1 of 28
SECTION 1. GENERAL PROVISIONS
SECTION 1.1. PURPOSE AND INTENT
1. In alignment with federal law, Federal Communications Commission regulations and Oregon
state law, the City of Lake Oswego intends this Policy to establish reasonable, uniform and
comprehensive standards and procedures for issuing permits for wireless facilities
deployment, construction, installation, collocation, and modification within the public rights-
of-way within the City's territorial boundaries. The standards and procedures contained in
this Policy are intended to,and should be applied to, protect and promote public health,safety
and welfare, and balance the benefits that flow from robust, advanced wireless services with
the City's local values, which include without limitation the aesthetic character of the City, its
neighborhoods, and community. This Policy does not replace or release a permittee or any
person from the obligation to comply with Lake Oswego Municipal Code Chapter 42 and
Chapter 51, including the license requirement of Chapter 51. If there is any conflict between
the provisions of Chapter 51 and the provisions of this Policy, the more specific provisions of
this Policy shall apply.
2. This Policy is also intended to reflect and promote the community interest by (1) ensuring
that the balance between public and private interest is maintained on a case-by-case basis;
(2) protecting the City's visual character from potential adverse impacts or visual blight created or
exacerbated by wireless communications infrastructure; (3) protecting and preserving the City's
environmental resources; and (4) promoting access to high-quality, advanced wireless services for the
City's residents, businesses, and visitors.
3. This Policy is not intended to, nor shall it be interpreted or applied to: (1) prohibit or
effectively prohibit any personal wireless service provider's ability to provide personal
wireless services; (2) prohibit or effectively prohibit any entity's ability to provide any
interstate or intrastate telecommunications service, subject to any competitively neutral and
nondiscriminatory rules, regulations or other legal requirements for rights-of-way
management; (3) unreasonably discriminate among providers of functionally equivalent
services; (4) deny any request for authorization to place, construct or modify personal
wireless service facilities on the basis of environmental effects of radio frequency emissions
to the extent that such wireless facilities comply with the FCC's regulations concerning such
emissions; (5) prohibit any collocation or modification that the City may not deny under
federal or Oregon state law; (6) impose any unfair, unreasonable, discriminatory or
anticompetitive application fees that exceed the reasonable cost to provide the services for
which the fee is charged;or(7)otherwise authorize the City to preempt any applicable federal
or Oregon law.
SECTION 1.2. GENERAL DEFINITIONS
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City means the City official responsible for reviewing applications for permits or approvals under
this Policy and vested with the authority.
Concealed or concealment means camouflaging techniques that integrate the transmission
equipment into the surrounding natural and/or built environment such that the average,
untrained observer cannot directly view the equipment but would likely recognize the existence
of the wireless facility or concealment technique. Camouflaging concealment techniques include,
but are not limited to: (1) antennas mounted within a radome; (2) equipment cabinets in the
public rights-of-way painted or wrapped to match the background; undergrounded placement of
equipment in vault, (3) radio equipment shrouds mounted to the side of a streetlight or utility
pole; and (4) Stealth Poles.
FCC means the Federal Communications Commission or its duly appointed successor agency.
FCC Shot Clock means the presumptively reasonable time frame within which the City generally
must act on a given wireless application, as defined by the FCC and as may be amended from
time to time.
Personal wireless services means the same as defined in 47 U.S.C. § 332(c)(7)(C)(i), as may be
amended or superseded, which defines the term as commercial mobile services, unlicensed
wireless services and common carrier wireless exchange access services.
RF means radio frequency or electromagnetic waves generally between 30 kHz and 300 GHz in
the electromagnetic spectrum range.
Section 6409 means Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012,
Pub. L. No. 112-96, 126 Stat. 156, codified as 47 U.S.C. § 1455(a), as may be amended.
Stealth Pole means utility poles or streetlight poles designed to accommodate and entirely or
nearly entirely conceal the incorporated personal wireless service facilities, as determined
through the City's preapproved design process set forth in Section 3.9.
Wireless service means the same as personal wireless service facilities as defined in 47 U.S.C. §
332(c)(7)(C)(ii), as may be amended or superseded, which defines the term as facilities that
provide personal wireless services.
SECTION 1.3. WIRELESS FACILITIES IN THE PUBLIC RIGHTS OF WAY GENERALLY
Only those wireless facilities that are equal to or less than the size of small wireless facilities
allowed under Section 3 of this policy shall be allowed within the public rights-of way. All wireless
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facilities in the public rights-of-way shall comply with the location requirements and design
standards of Section 3 of this policy. Nothing in this Section 1.3 shall be construed to limit or
prevent the applicability of Section 6409 to an eligible facilities request that does not cause a
substantial change.
SECTION 1.4. STANDARD CONDITIONS OF APPROVAL FOR WIRELESS FACILITIES
In addition to all other conditions adopted by the City, all wireless facilities issued under this
Policy, whether approved by the City or deemed approved by the operation of law, shall be
automatically subject to the conditions in this Section 1.4.The City shall have discretion to modify
or amend these conditions on a case-by-case basis as may be necessary or appropriate under the
circumstances to protect public health and safety or allow for the proper operation of the
approved facility consistent with the goals of this Policy.
1. Post-Installation Certification. Within 60 calendar days after the permittee commences
full, unattended operations of a wireless facility approved or deemed-approved, the
permittee shall provide the City with documentation reasonably acceptable to the City
that the wireless facility has been installed and/or constructed in strict compliance with
the approved construction drawings and photo simulations. Such documentation shall
include without limitation as-built drawings, GIS data, and site photographs.
2. Build-Out Period. Approval will automatically expire six (6) months from the approval
date (the "build-out period") unless the permittee (a) obtains all other permits and
approvals required to install, construct and/or operate the approved facility, which
includes without limitation the license required pursuant to Lake Oswego Municipal Code
Chapter 51 and any permits or approvals required by the any federal, state or local public
agencies with jurisdiction over the subject property, the facility or its use, and (b)
commences installation or construction. The build-out period may be extended for an
additional six (6) months by the City for a good cause. If this build-out period expires,
including any extension, the City will not extend the build-out period but the permittee
may resubmit a complete application, including all application fees, for the same, or
substantially similar project.
3. Site Maintenance. The permittee shall install all wireless facilities in a manner that
complies with applicable federal, state and local laws, rules, regulations and policies. The
permittee shall, at its own expense, correct or repair wireless facilities installations that
do not comply with this provision. If, after written notice from the City of the need for
correction or repair, the permittee fails to repair and maintain wireless 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 permittee's sole
expense. Upon receipt of a detailed invoice from the City, the permittee shall reimburse
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the City for the costs the City incurred within 30 days.
4. Compliance with Laws.
The permittee shall perform all work under the permit in compliance at all times
with all federal, state and local statutes, regulations,orders or other rules that
carry the force of law("laws") applicable to the permittee, the subject property,
the wireless facility or any use or activities in connection with the use authorized
in the wireless facility permit, which includes without limitation any laws
applicable to human exposure to RF emissions. The permittee expressly
acknowledges and agrees that this obligation is intended to be broadly construed
and that no other specific requirements in these conditions are intended to
reduce, relieve or otherwise lessen the permittee's obligations to maintain
compliance with all laws. No failure or omission by the City to timely notice,
prompt or enforce compliance with any applicable provision in the Lake Oswego
Municipal Code, this Policy, any permit, any permit condition or any applicable
law or regulation, shall be deemed to relieve, waive or lessen the permittee's
obligation to comply in all respects with all applicable provisions in the Lake
Oswego Municipal Code, this Policy, any permit, any permit condition or any
applicable law or regulation.
5. Adverse Impacts on Other Properties. The permittee shall use all reasonable efforts to
avoid any and all unreasonable, undue or unnecessary adverse impacts on nearby
properties that may arise from the permittee's or its authorized personnel's construction,
installation, operation, modification, maintenance, repair, removal and/or other activities
on or about the site. The permittee shall not perform or cause others to perform any
construction, installation, operation, modification, maintenance, repair, removal or other
work that involves heavy equipment or machines except during normal construction work
hours authorized by the Lake Oswego Municipal Code. The restricted work hours in this
condition will not prohibit any work required to prevent an actual, immediate harm to
property or persons, or any work during an emergency declared by the City or other state
or federal government agency or official with authority to declare a state of emergency
within the City. The City may issue a stop work order for any activities that violates this
condition in whole or in part. As used in this condition, "adverse impacts" include, but are
not limited to, trespassing on adjacent properties during construction, maintenance or
removal, excessive noise or light emission by the wireless facility, construction equipment
and/or other inventory and supplies left overnight in the vicinity of the wireless facility.
6. Inspections. The permittee expressly acknowledges and agrees that the City's officers,
officials, staff, agents, contractors or other designees may enter onto the site and inspect
the improvements and equipment upon reasonable prior notice to the permittee. The
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permittee, if present, may observe the City's officers, officials, staff or other designees
while any such inspection occurs.
7. Landscaping. The permittee shall replace any landscape features damaged or displaced
by the construction, installation, operation, maintenance or other work performed by the
permittee or at the permittee's direction on or about the site. If any trees are damaged
or displaced,the permittee shall abide by all tree removal and protection standards of the
City.
SECTION 2. ELIGIBLE FACILITIES REQUESTS AS DEFINED BY SECTION 6409
WITHIN THE PUBLIC RIGHTS-OF-WAY
SECTION 2.1. APPLICABILITY; REQUIRED PERMITS AND APPROVALS
1. Applicability. Notwithstanding any provision in this Policy to the contrary, all requests for
approval to collocate, replace or remove transmission equipment at an existing wireless
tower or base station located within the public rights-of-way and submitted pursuant to
Section 6409 will be reviewed and approved or denied without prejudice in accordance
with the standards and procedures in this Section 2.
2. Section 6409 Approval. Any request to collocate, replace or remove transmission
equipment at an existing wireless tower or base station located within the public rights-
of-way and submitted with a written request for approval under Section 6409 shall
require an approval in such form determined by the City consistent with all valid and
enforceable terms and conditions of the underlying permit or other prior regulatory
authorization for the tower or base station (each amendment a "Section 6409 approval").
3. Option to Seek a Discretionary Permit. A discretionary permit under Section 3 is not
required for any request that qualifies for approval pursuant to Section 6409. For any
application for a Section 6409 approval properly denied, the applicant may submit the
same or a substantially similar application for a discretionary permit under Section 3.
4. Other Permits and Regulatory Approvals. No collocation or modification approved
pursuant to this section may occur unless the applicant also obtains all other permits and
regulatory approvals as may be required by any other federal, state or local government
agencies, which includes without limitation any other permits and/or regulatory
approvals issued by other departments or divisions within the City. In particular,
compliance with Lake Oswego Municipal Code Chapter 51 and the City's Tree Code,
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Chapter 55, is required. Furthermore, any Section 6409 approval granted under this
section shall remain subject to any and all lawful conditions and/or legal requirements
associated with such other permits or regulatory approvals.
SECTION 2.2. SPECIALIZED DEFINITIONS
As used in this Section 2, the following definitions shall apply:
Base station means the same as defined by the FCC in 47 C.F.R. § 1.6100(b)(1), as may be
amended or superseded.
Collocation means the same as defined by the FCC in 47 C.F.R. § 1. 6100(b)(2), as may be amended
or superseded.
Eligible facilities request means the same as defined by the FCC in 47 C.F.R. § 1. 6100(b)(3), as
may be amended or superseded.
Eligible support structure means the same as defined by the FCC in 47 C.F.R. § 1. 6100(b)(4), as
may be amended or superseded.
Existing means the same as defined by the FCC in 47 C.F.R. § 1. 6100(b)(5), as may be amended
or superseded.
Site means the same as defined by the FCC in 47 C.F.R. § 1. 6100(b)(6), as may be amended or
superseded.
Substantial change means the same as defined by the FCC in 47 C.F.R. § 1. 6100(b)(7), as may be
amended or superseded.
Transmission equipment means the same as defined by the FCC in 47 C.F.R. § 1. 6100(b)(8), as
may be amended or superseded.
Tower means the same as defined by the FCC in 47 C.F.R. § 1. 6100(b)(9), as may be amended or
superseded.
SECTION 2.3. SECTION 6409 APPLICATIONS, SUBMITTALS AND COMPLETENESS REVIEW
1. Section 6409 Approval Application. The applicant shall submit a complete, duly
executed Section 6409 approval application on the then-current form prepared by the
City. The application must include all the information and materials required by the City
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for the application, which includes, without limitation, the applicable Section 6409
approval application fee established by City Council resolution, construction drawings,
site survey, photo simulations, project narrative and justification, RF compliance report,
regulatory authorization, acoustic analysis, and any additional publicly stated
requirements set forth by the City.
2. Requirements for a Duly Filed Application. Any application for a Section 6409 approval
will not be considered duly filed unless submitted in accordance with the requirements
in this Section 2.3(2).
a. Application Submittal Appointment. All applications must be submitted to the
City at a pre-scheduled appointment with the City. Applicants may generally
submit one application per appointment. Applicants may schedule successive
appointments for multiple applications whenever feasible and not prejudicial to
other applicants. The City shall use reasonable efforts to provide the applicant
with an appointment within five working days after the City receives a written
request. Any application received without an appointment, whether delivered in-
person, by mail or through any other means, will not be considered duly filed.
b. Pre-Application Conferences. The City strongly encourages, but does not require,
applicants to schedule and attend a pre-application conference with the City for
all collocations or modifications to any concealed or camouflaged wireless tower
or base station. This voluntary pre-submittal conference does not cause the FCC
Shot Clock to begin and is intended to streamline the review process through
informal discussion that includes, without limitation, the appropriate project
classification and review process; any latent issues in connection with the
proposed project, including compliance with generally applicable rules for public
health and safety; potential concealment issues or concerns (if applicable);
coordination with other City departments responsible for application review; and
application completeness issues. To mitigate unnecessary delays due to
application incompleteness, applicants are encouraged (but not required)to bring
any draft applications or other materials so that City staff may provide informal
feedback and guidance about whether such applications or other materials may
be incomplete or unacceptable. Pre-application conferences should follow the
prescribed pre-application procedure, timeline, and fees set by the City.
3. Application Completeness Review.Within 30 calendar days after the City receives a duly
filed Section 6409 application,the City shall review the application for completeness and,
if any application does not contain all the materials required in Section 2.3(1) or any
other publicly stated requirements, send a written notice to the applicant that identifies
the missing or incomplete requirements.
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4. Applications Deemed Withdrawn.To promote efficient review and timely decisions, and
to mitigate unreasonable delays or barriers to entry caused by chronically incomplete
applications, any application governed under this Policy will be automatically deemed
withdrawn by the applicant when the applicant fails to tender a substantive response to
the City within 60 calendar days after the City deems the application incomplete in a
written notice to the applicant. As used in this Section 2.3(4), a "substantive response"
must include the materials identified as incomplete in the City's notice.
5. Additional Requirements and Regulations.The City may develop, publish and from time
to time update or amend permit application requirements, forms, checklists, guidelines,
informational handouts and other related materials that the City finds necessary,
appropriate or useful for processing any application governed under this Policy. The City
Council further authorizes the City to establish other reasonable rules and regulations
for duly filed applications, which may include without limitation regular hours for
appointments with applicants, as the City deems necessary or appropriate to organize,
document and manage the application intake process. All such requirements, materials,
rules and regulations must be in written form and publicly stated to provide all interested
parties with prior notice.
SECTION 2.4. APPROVALS AND DENIALS; NOTICES
1. Administrative Review. The City shall review a complete and duly filed application for a
Section 6409 approval and may act on such application without prior notice or a public
hearing.
2. Decision Notices. Within five calendar days after the City acts on an application for a
Section 6409 approval or before the FCC Shot Clock expires (whichever occurs first), the
City shall notify the applicant by written notice. If the City denies the application (with or
without prejudice), the written notice must contain the reasons for the decision.
3. Required Findings. The City may approve or conditionally approve an application for a
Section 6409 approval when the City finds that the proposed project:
a. involves collocation, removal or replacement of transmission equipment on an
existing wireless tower or base station; and
b. does not substantially change the physical dimensions of the existing wireless
tower or base station in accordance with the following thresholds:
i. increases the height of the structure by more than 10% or more than ten
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feet, whichever is greater;
ii. involves adding an appurtenance to the body of the structure that would
protrude from the edge of the structure by more than six feet;
iii. involves installation of more than four equipment cabinets, any new
equipment cabinets on the ground if there are no pre-existing ground
cabinets associated with the structure, or ground cabinets that are more
than 10%larger in height or overall volume than any other ground cabinets
associated with the structure;
iv. entails any excavation or deployment outside the current site;
v. defeats the concealment elements of the eligible support structure; or
vi. does not comply with conditions associated with the siting approval of the
construction or modification of the eligible support structure or base
station equipment, provided however that this limitation does not apply
to any modification that is non-compliant only in a manner that would not
exceed the thresholds identified in subsection (i) through (iv).
4. Criteria for Denial without Prejudice. Notwithstanding any other provision in this policy,
and consistent with all applicable federal laws and regulations,the City may deny without
prejudice any application for a Section 6409 approval when the City finds that the
proposed project:
a. does not meet the required findings in Section 2.4(3);
b. involves the replacement of the entire support structure; or
c. violates any legally enforceable law, regulation, rule,standard or permit condition
reasonably related to public health or safety.
5. Conditional Approvals. Subject to any applicable limitations in federal or Oregon law,
nothing in this Policy is intended to limit the City's authority to conditionally approve an
application for a Section 6409 approval to protect and promote the public health and
safety.
6. Appeals. Any decision by the City shall be final and not subject to any administrative
appeals.
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SECTION 2.5. SPECIALIZED STANDARD CONDITIONS FOR SECTION 6409 APPROVALS
In addition to the conditions in Section 1.4 of this Policy, all Section 6409 approvals, whether
approved by the City or deemed approved by the operation of law, shall be automatically subject
to the conditions in this Section 2.5. The City shall have discretion to modify or amend these
conditions on a case-by-case basis as may be necessary or appropriate under the circumstances
to protect public health and safety or allow for the proper operation of the approved facility
consistent with the goals of this Section 2.
1. Permit Term. The City's grant or grant by operation of law of this Section 6409 approval
constitutes a federally-mandated modification to the underlying permit or other prior
regulatory authorization for the subject tower or base station, and will be regarded as a
modification to the underlying approval for the subject tower or base station. The City's
grant or grant by operation of law of this Section 6409 approval will not extend the permit
term, if any, for any underlying permit or other underlying prior regulatory authorization.
Accordingly, the term for this Section 6409 approval shall be coterminous with the
underlying permit or other prior regulatory authorization for the subject tower or base
station, and any renewals thereof.
2. City's Standing Reserved. The City's grant or grant by operation of law of this Section
6409 approval does not waive, and shall not be construed to waive, any standing by the
City to challenge Section 6409, any FCC rules that interpret Section 6409 or any eligible
facilities request.
SECTION 3. SMALL WIRELESS FACILITIES WITHIN THE PUBLIC RIGHTS-OF-WAY
SECTION 3.1. APPLICABILITY; REQUIRED PERMITS AND APPROVALS
1. Applicability.
a. Small Wireless Facilities. Except as expressly provided otherwise in this Policy,the
provisions in this Policy shall be applicable to all small wireless facilities
applications and requests for authorization to construct, install, attach, collocate,
modify, reconstruct, relocate or otherwise deploy small wireless facilities located
within the public rights-of-way within the City's jurisdictional and territorial
boundaries.
b. Other Infrastructure Deployments. To the extent that other infrastructure
deployments, including without limitation any deployments that require approval
pursuant to Lake Oswego Municipal Code Chapter 42 or Chapter 51, involve the
same or substantially similar structures, apparatus,antennas, equipment,fixtures,
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cabinets, cables or improvements,the City shall apply the provisions in this Policy
unless specifically prohibited by applicable law, in addition to the provisions of
Lake Oswego Municipal Code Chapter 42 and/or Chapter 51.
2. Exemptions. Notwithstanding anything in this Policy to the contrary, a small wireless
facility permit shall not be required for:
a. wireless facilities or other infrastructure deployments owned and operated by the
City for its use;
b. OTARD (Over-the-Air Reception Devices)facilities subject to 47 C.F.R. § 1.4000; or
c. requests for approval to collocate, replace, or remove transmission equipment at
an existing wireless tower or base station submitted pursuant to Section 2 of this
Policy.
3. Required Permits and Approvals.
a. Small Wireless Facility Permit.A small wireless facility permit,subject to the City's
prior review and approval, is required for any small wireless facility proposed on
an existing, new or replacement support structure located within the public rights-
of-way.
b. Other Permits and Approvals. In addition to a small wireless facility permit, the
applicant must obtain all other permits and regulatory approvals as may be
required by any other federal, state or local government agencies, which includes
without limitation any ministerial permits and/or approvals issued by other City
departments or divisions. In particular all small wireless facility placements must
be in compliance with Lake Oswego Municipal Code Chapter 51 and the City of
Lake Oswego Tree Code, Chapter 55. All applications for ministerial permits
submitted in connection with a proposed small wireless facility must contain a valid
small wireless facility permit for the proposed facility. Any application submitted
without such small wireless facility permit will be denied without prejudice.
Furthermore, any permit or approval granted under this Section 3 shall remain
subject to all lawful conditions and/or legal requirements associated with such
other permits or approvals.
SECTION 3.2. SPECIALIZED DEFINITIONS
As used in this Section 3, the following definitions shall apply:
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Accessory equipment means equipment other than antennas used in connection with a small
wireless facility or other infrastructure deployment.The term includes"transmission equipment"
(other than antennas) as defined by the FCC in 47 C.F.R. § 1.6100(b)(8), as may be amended or
superseded.
Antenna means the same as defined by the FCC in 47 C.F.R. § 1.6002(b), as may be amended or
superseded.
Arterial street means a street designed primarily for long-distance travel, high traffic capacity and
low accessibility from neighboring streets. The term "arterial street" as used in this Policy
includes freeways, major arterials and minor arterials as defined in the City of Lake Oswego
Transportation System Plan.
Batched application means more than one application submitted at the same time.
Collector street means a street designed primarily as a connection between local streets and
arterials, moderate traffic capacity and high accessibility from local streets. The term "collector
street" as used in this Policy includes major collectors and neighborhood collectors as defined in
the City of Lake Oswego Transportation System Plan.
Collocation means the same as defined by the FCC in 47 C.F.R. § 1.6002(g), as may be amended
or superseded.
Decorative pole means any pole that includes decorative or ornamental features, design
elements and/or materials intended to enhance the appearance of the pole or the public right-
of-way in which the pole is located.
Local street means a street designed primarily to provide access to abutting properties from
collectors or arterials,with maximum speeds up to 25 miles per hour and low traffic capacity.The
term "local street" as used in this Policy includes all local streets as defined in the City of Lake
Oswego Transportation System Plan.
Ministerial permit means any City-issued non-discretionary permit required to commence or
complete any construction or other activity subject to the City's jurisdiction. Ministerial permits
may include, without limitation, a building permit, construction permit, electrical permit,
encroachment permit, excavation permit and/or traffic control permit.
Small wireless facility or small wireless facilities means the same as defined by the FCC in 47 C.F.R.
§ 1.6002(I), as may be amended or superseded.
Support structure or structure means a "structure" as defined by the FCC in 47 C.F.R. § 1.6002(m),
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as may be amended or superseded.
SECTION 3.3. SMALL WIRELESS FACILITY PERMIT APPLICATION REQUIREMENTS
1. Small Wireless Facility Permit Application. The applicant shall submit a complete, duly
executed small cell permit application on the then-current City form.The application must
include all the information and materials required by the City for the application, which
includes, without limitation, the applicable permit application fee (per site for batched
applications), regulatory authorization, and any additional publicly stated requirements
set forth by the City.
2. Site Agreement. For any small wireless facility proposed to be installed on any structure
owned or controlled by the City and located within the public rights-of-way,the applicant
shall submit a proposed site agreement on a form prepared by the City that states the
terms and conditions for such non-exclusive use by the applicant. No changes shall be
permitted to the City's form site agreement except as may be indicated on the form itself.
Any unpermitted changes to the City's form site agreement shall be deemed a basis to
deem the application incomplete.
3. Additional Requirements. The City may develop, publish and from time to time update
or amend permit application requirements, forms, checklists, guidelines, informational
handouts and other related materials that the City finds necessary, appropriate or useful
for processing any application governed under this Policy. All such requirements and
materials must be in written form and publicly stated to provide all interested parties with
prior notice.
SECTION 3.4. SMALL WIRELESS FACILITY PERMIT APPLICATION SUBMITTAL PROCEDURES
1. Requirements for a Duly Filed Application. Any application for a small wireless facility
permit will not be considered duly filed unless submitted in accordance with the
requirements in this section 3.4(1).
a. Application Submittal Appointment. All applications must be submitted to the
City at a pre-scheduled appointment with the City. Applicants may generally
submit one application per appointment, or up to five individual applications per
appointment for batched applications. Applicants may schedule successive
appointments for multiple applications whenever feasible and not prejudicial to
other applicants. The City shall use reasonable efforts to provide the applicant
with an appointment within five working days after the City receives a written
request. Any application received without an appointment, whether delivered in-
person, by mail or through any other means, will not be considered duly filed.
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b. Pre-Application Conferences. The City strongly encourages, but does not require,
applicants to schedule and attend a pre-application conference with the City for
all proposed projects that involve more than five small wireless facilities.
This voluntary pre-application conference does not cause the FCC Shot Clock to
begin and is intended to streamline the review process through informal
discussion that includes, without limitation, the appropriate project classification
and review process; any latent issues in connection with the proposed project,
including compliance with generally applicable rules for public health and safety;
potential concealment issues or concerns (if applicable); coordination with other
City departments responsible for application review; and application
completeness issues.
To mitigate unnecessary delays due to application incompleteness, applicants are
encouraged (but not required) to bring any draft applications or other materials
so that City staff may provide informal feedback and guidance about whether such
applications or other materials may be incomplete or unacceptable. Pre-
application conferences should follow the prescribed pre-application procedure,
timeline, and fees set by the City.
c. Applications Deemed Withdrawn. To promote efficient review and timely
decisions, and to mitigate unreasonable delays or barriers to entry caused by
chronically incomplete applications, any application governed under this Policy
will be automatically deemed withdrawn by the applicant when the applicant fails
to tender a substantive response to the City within 60 calendar days after the City
deems the application incomplete in a written notice to the applicant. As used in
this subsection, a "substantive response" must include the materials identified as
incomplete in the City's notice.
2. Additional Procedures. The City may to establish other reasonable rules and regulations
for duly filed applications, which may include without limitation regular hours for
appointments with applicants, as the City deems necessary or appropriate to organize,
document and manage the application intake process.All such rules and regulations must
be in written form and publicly stated to provide all interested parties with prior notice.
SECTION 3.5. APPROVALS AND DENIALS; NOTICES
1. Post-Approval Public Notice. The City shall administratively approve, conditionally
approve or deny a complete and duly field small wireless facility permit application
without a public hearing. After any final approval, public notice will be mailed to all
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properties and record owners of properties within 300 feet from the project site
measured laterally in both directions. The City will be responsible for noticing property
owners. Costs incurred by the City will be recovered in permit fees.
The notice will contain: (1) a general project description; (2)the applicant's identification
as provided on the application submitted to the City; (3) contact information for the
approval authority; and, (4) a statement that the FCC requires the City to act on small
wireless facility permit applications in 60 days for attachments to existing structures and
90 days for new structures. All information for noticing must be provided by the
permittee.
2. Required Findings. The City may approve or conditionally approve a complete and duly
filed application for a small wireless facility permit when the City finds:
a. The proposed project meets the definition for a "small wireless facility" as
defined by the FCC;
b. The proposed project would be in the most preferred location within 300 feet
from the proposed site in any direction or the applicant has demonstrated
with clear and convincing evidence in the written record that any more-
preferred location(s) within 300 feet would be technically infeasible;
c. The proposed project would not be located on a prohibited support structure
identified in Section 3.7;
d. The proposed project would be on the most preferred support structure
within 300 feet from the proposed site in any direction or the applicant has
demonstrated with clear and convincing evidence in the written record that
any more-preferred support structure(s) within 300 feet would be technically
infeasible;
e. The proposed project complies with all applicable location standards in Section
3.7;
f. The proposed project complies with all applicable design standards in Section
3.8; and
g. The applicant has demonstrated that the proposed project will be in planned
compliance with all applicable FCC regulations and guidelines for human
exposure to RF emissions.
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3. Conditional Approvals; Denials without Prejudice. Subject to any applicable federal or
Oregon laws, nothing in this Policy is intended to limit the City's ability to conditionally
approve or deny without prejudice any small wireless facility permit application as may
be necessary or appropriate to ensure compliance with this Policy.
4. Decision Notices. Within five calendar days after the City acts on a small wireless facility
permit application or before the FCC Shot Clock expires (whichever occurs first), the City
shall notify the applicant by written notice. If the Director denies the application (with or
without prejudice), the written notice must contain the reasons for the decision.
5. Appeals. Any decision by the City shall be final and not subject to any administrative
appeals.
SECTION 3.6. SPECIALIZED STANDARD CONDITIONS FOR SMALL WIRELESS FACILITIES
In addition to the conditions in Section 1.4 of this Policy, all small wireless facility permits shall be
automatically subject to the conditions in this Section 3.6. The City shall have discretion to modify or
amend these conditions on a case-by-case basis as may be necessary or appropriate under the
circumstances to protect public health and safety or allow for the proper operation of the approved
facility consistent with the goals of this Section 3.
1. Electric Meter Upgrades. If the commercial electric utility provider adopts or
changes its rules obviating the need for a separate or ground-mounted electric
meter and enclosure, the permittee on its own initiative and at its sole cost and
expense shall remove the separate or ground-mounted electric meter and
enclosure. Prior to removing the electric meter, the permittee shall apply for any
encroachment and/or other ministerial permit(s) required to perform the
removal. Upon removal, the permittee shall restore the affected area to its
original condition that existed prior to installation of the equipment.
SECTION 3.7. LOCATION REQUIREMENTS
1. Preface to Location Requirements. This Section 3.7(1) provides guidance as to how to
interpret and apply the location requirements in this Section 3.7. To better assist
applicants and decision makers in understanding and responding to the community's
aesthetic preferences and values, Sections 3.7(2) and 3.7(4) set out listed preferences for
locations and support structures to be used in connection with small wireless facilities in
ordered hierarchies. Applications that involve lesser-preferred locations or structures
may be approved so long as the applicant demonstrates that either(1) no more preferred
locations or structures exist within 300 feet from the proposed site; or (2) any more
preferred locations or structurers within 300 feet from the proposed site would be
technically infeasible as supported by clear and convincing evidence in the written record.
Sections 3.7(3) and 3.7(5) identify"prohibited" locations and support structures on which
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the City shall not approve any small wireless facility permit application for any competitor
or potential competitor.
2. Locations. Small wireless facilities must be installed in locations, ordered from most
preferred to least preferred location:
a. Locations within commercial or industrial zones on or along arterial streets;
b. Locations within commercial or industrial zones on or along collector streets;
c. Locations within commercial or industrial zones on or along local streets;
d. Locations within mixed use or public use zones on or along arterial streets;
e. Locations within mixed use or public use zones on or along collector streets;
f. Locations within mixed use or public use zones on or along local streets;
g. Locations within residential zones on or along arterial streets; and
h. Locations within residential zones on or along collector streets.
Small wireless facilities are strongly discouraged in residential zones.
3. Prohibited locations. The City prohibits small wireless facilities to be installed on the
following locations:
a. Within 50 feet of a school;
b. Within 50 feet of a fire station;
c. Located in front of storefront windows, primary walkways, primary business
entrances or exits, designated historic structures or public park entrances; and
d. If approved to locate in a residential zone, poles must be placed at least ten (10)
feet from any driveways and may not be placed directly in front of residential
windows or doorways.
4. Support Structures in the Public Rights-of-Way.Small wireless facilities to be installed on
support structures in the public rights-of-way shall be installed in accordance with the
following preferences, ordered from most preferred to least preferred location:
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a. Existing or replacement utility poles;
b. Replacement of existing standalone streetlight poles;
c. New, non-replacement standalone streetlight poles; and
d. New, non-replacement purpose built pole for concealed small cell wireless
facilities.
5. Prohibited Support Structures. The City prohibits small wireless facilities to be installed
on the following support structures and similar structures in the public rights-of-way:
a. Existing decorative poles, including but not limited to Downtown decorative,
Mountain Park decorative, and residential decorative;
b. Flag poles;
c. Traffic signals, signs,traffic poles, cabinets and related devices;
d. City furniture, such as wayfinding signs and devices, public art, and bus shelters;
e. Any utility pole scheduled for removal or relocation within 12 months from the
time the City acts on the small wireless facility permit application; and
f. New, non-replacement wood poles.
SECTION 3.8. DESIGN STANDARDS
1. Overall Height. Small wireless facilities cannot exceed four (4) feet above the existing
support structure, plus the minimum separation from electrical lines required by
applicable safety regulations and shall not be installed at a height exceeding forty-four
(44) feet.
2. Antennas.
a. Concealment. Antennas must be mounted in a manner minimizing visual impacts,
which may include flush-mounting and camouflaging. All antennas and associated
mounting equipment, hardware, cables or other connecters must be completely
concealed within an opaque antenna shroud or radome. The antenna shroud or
radome must be painted (or covered by a film) using a flat, non-reflective color to
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match the underlying support structure.
b. Antenna Volume. Each individual antenna may not exceed three (3) cubic feet in
volume. The cumulative volume for all antennas on a single small cell, including
the shroud or radome, shall not exceed: (A) three cubic feet in residential areas;
or (B) six cubic feet in nonresidential areas.
c. Strand Mounting. Strand mounted small wireless facilities are permitted, subject
to the following criteria:
i. Strand mounted antennas may be allowed when utility lines are present.
ii. Only two (2) strand mounted antennas are permitted between any two
existing poles.
iii. Antennas shall be placed as close as possible to the nearest utility pole,
never to exceed more than six (6) feet from the pole unless a greater
distance is technically necessary or required by the pole owner for safety
clearance.
iv. No strand mounted device shall be located in or above the portion of the
roadway open to vehicular traffic.
v. Spooled or excess cabling, wires or fiber shall not be permitted on the pole
or on the supporting cable strand.
3. Accessory Equipment.
a. Installation Preferences. All non-antenna accessory equipment shall be installed
in accordance with the following preferences, ordered from most preferred to
least preferred design:
i. Underground where the existing utilities are primarily located
underground;
ii. Integrated into the base of the underlying pole or support structure; or
iii. Mounted or attached on the underlying pole or support structure.
Applications that select preference (ii) or (iii) may be approved if the applicant
demonstrates by clear and convincing evidence in the written record that the
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more preferred installation location would be technically infeasible.
b. Undergrounded Accessory Equipment. All undergrounded accessory equipment
must be installed in an environmentally controlled vault that is load-rated to meet
the City's standards and specifications. Underground vaults located beneath a
sidewalk must be constructed with a slip-resistant cover.Vents for airflow shall be
flush-to-grade when placed within the sidewalk and may not exceed two feet
above grade when placed off the sidewalk.
c. Pole-Mounted Accessory Equipment. All pole-mounted accessory equipment
must be installed flush to the pole in a single equipment shroud to minimize the
overall visual profile. If any applicable health and safety regulations prohibit flush-
mounted equipment, the maximum separation permitted between the accessory
equipment and the pole shall be the minimum separation required by such
regulations.
All pole-mounted equipment and required or permitted signage must be placed
and oriented away from adjacent sidewalks and structures. All cables, wires and
other connectors must be routed through conduits within the pole, and all conduit
attachments, cables, wires and other connectors must be concealed from public
view.
To the extent that cables, wires and other connectors cannot be routed through
the pole, such as when the pole is a wooden utility pole, applicants shall route
them through a minimum number of external conduits or a shroud that has been
finished to match or be compatible with the underlying support structure.
All pole mounted equipment requires camouflaging, such as matching non-
reflective paint, shielded lights, antenna covers, for all pole types.
d. Base-Mounted Accessory Equipment. All base-mounted accessory equipment
must be installed within a shroud, enclosure or pedestal integrated into the base
of the support structure. All cables, wires and other connectors routed between
the antenna and base-mounted equipment must be concealed from public view.
All base mounted equipment requires camouflaging, such as matching non-
reflective paint, for all pole types.
e. Ground-Mounted Accessory Equipment. Separate ground-mounted accessory
equipment, including but not limited to any utility or transmission equipment,
pedestals, cabinets, panels or electric meters is prohibited, except where the
applicant demonstrates by clear and convincing evidence that installing the
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equipment in a more preferred location would be technically infeasible.
f. Accessory Equipment Size. All accessory equipment associated with a small
wireless facility installed above ground level shall not cumulatively exceed nine
and a half (9.5) cubic feet in volume. The volume calculation shall include any
shroud, cabinet or other concealment device used in connection with the non-
antenna accessory equipment.
4. Standards for Pole Types.
a. Small Wireless Facilities Attached to Utility Poles with Overhead Lines.
Applicants are strongly encouraged to place on existing utility poles.Small wireless
facilities located on wooden utility poles and non-wooden utility poles with
overhead lines shall conform to the following design criteria:
i. Antennas shall be side mounted. If pole owner requirements and technical
feasibility prevents side mounted antennas, City may allow top mounted.
ii. Antennas which are mounted on poles shall be mounted as close to the
pole as technically feasible from the surface of the utility pole. For clarity,
an additional distance is allowed if needed for pole owner requirements.
iii. Any side-mounted antennas must be attached using a stand-off bracket or
extension arm must be concealed within a shroud. All cables, wires and
other connectors must be concealed within the side-arm mount or
extension arm shroud.
iv. The maximum horizontal separation between the antenna and the pole
shall be the minimum separation required by applicable health and safety
regulations and pole owner requirements.
v. Ancillary equipment including, but not limited to, radios,cables, associated
shrouding, disconnect boxes, meters, microwaves, and conduit, which is
mounted on poles shall be mounted as close to the pole as technically
feasible and allowed by the pole owner.
vi. Applicants shall locate small wireless facilities adjacent to existing tree
coverage and shrubbery as screening to reduce the visual impact of
equipment and antennas when possible.
b. Small Wireless Facilities Attached to Streetlight Infrastructure. Applicants that
propose to install small wireless facilities on an existing standalone streetlight
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poles must remove and replace the existing streetlight pole with a new streetlight
pole designed to support the equipment or a Stealth Pole that is substantially
similar to the City's standards and specifications. Streetlight poles are subject to
the following criteria:
i. Replacement pole must be located as near as feasible to the existing
pole.
ii. The pole must be aligned and appropriately spaced with the other
existing streetlights.
iii. All equipment (excluding disconnect switches), conduit and fiber must
be fully concealed within the pole.The antennas must be camouflaged
to appear as an integral part of the pole or be mounted as close to the
pole as feasible.
iv. All antennas must be installed above the pole within a single, canister
style shroud or radome that tapers to the pole.
v. Streetlight pole must include illumination and shielding as required by
City Code.
c. Replacement Wood Utility Poles.When placing on existing wood utility poles,the
City prefers poles to be replaced. Replacement of the pole is at the applicant's
expense. Replacement poles are subject to the following criteria:
i. The replacement pole must match the approximate color and materials of
the replaced pole or shall be the standard new pole used by the pole owner
in the City.
ii. The replacement pole shall substantially conform to the material and
design of the existing pole or adjacent poles located within the contiguous
right-of-way.
iii. If existing utility pole has a streetlight attached,the replacement pole must
also have a streetlight attached, which must comply with City standards.
iv. The replacement pole must comply with the Americans with Disabilities
Act (ADA), City construction and sidewalk clearance standards, and City,
state and federal laws and regulations in order to provide a clear and safe
passage within the right-of-way.
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v. The location of any replacement or new pole must comply with applicable
traffic requirements, not interfere with utility or safety fixtures (e.g., fire
hydrants, traffic control devices), and not adversely affect public health,
safety or welfare.
vi. The abandoned pole must be removed within 30 days after relocation of
existing equipment has been completed.
d. Purpose Built Pole(with or without streetlight).Applicants may propose to install
small wireless facilities on a new, non-replacement pole with integrated,
concealed small cell wireless facilities where installation on an existing pole is
technically infeasible and the applicant meets the criteria of section 3.5. Purpose
built poles shall meet the following design criteria:
i. Install a new Stealth Pole designed as a streetlight, which will comply with
the City's standards and specifications and can accommodate a small
wireless facility that is substantially similar to the existing wireless facilities
in the immediate vicinity.
ii. If there are no existing streetlights in the immediate vicinity nor allowed
by City Code, the applicant may install a Stealth Pole without a streetlight
capable of concealing all the accessory equipment either within the pole
or within an integrated enclosure located at the base of the pole. The pole
diameter shall not exceed twelve (12) inches and any base enclosure
diameter shall not exceed sixteen (16) inches.
iii. Antennas, antenna equipment and associated equipment enclosures
(excluding disconnect switches), conduit and fiber shall be fully concealed
within the structure.
iv. All new poles and pole-mounted antennas and equipment shall
substantially conform to the material and design of adjacent poles located
within the contiguous right-of-way.
v. If such concealment of wireless antennas and associated equipment within
a pole is not technically feasible, or is incompatible with the pole design,
then the antennas and associated equipment shroud or enclosure must be
camouflaged to appear as an integral part of the structure or mounted as
close to the pole as feasible, and must be reasonably related in size to the
intended purpose of the facility and reasonable expansion for future
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frequencies and/or technologies, not to exceed the volumetric
requirements in Section 3.8(2)(b).
vi. New poles shall be located on corners or along property to allow for a
continuous and consistent streetscape appearance. Poles are encouraged
to be in alignment with existing trees and utilize existing trees or shrubbery
to reduce the visual impact.
vii. Applications that involve new, non-replacement poles may be approved so
long as the applicant meets the required findings in Section 3.5(2).
5. Noise. Small wireless facilities and all accessory equipment and transmission equipment
must be shown in the permit application to demonstrate compliance with the noise limit
in the applicable zone as set forth below.
Location type Noise Exposure Limit
Residential 55 dBA
Non-residential 65 dBA
To the extent that the proposed equipment would exceed the applicable noise limit, the
application may be approved if the applicant's acoustic analysis shows that the equipment
would not cause a perceptible noise increase above the ambient noise limit or materially
increase the existing ambient noise levels at the subject location. This provision shall be
effective for the duration of the equipment being present in the public right-of-way.
6. Lights. Small wireless facilities shall not include any lights that would be visible from
publicly accessible areas, except as may be required under Federal Aviation
Administration, FCC, other applicable regulations for health and safety. All equipment
with lights (such as indicator or status lights) must be installed in locations and within
enclosures that mitigate illumination impacts. The provisions in this subsection shall not
be interpreted or applied to prohibit installations on streetlights or luminaires installed
on new or replacement poles as may be required under this Policy.
7. Landscape Features. Small wireless facilities shall not damage or remove any existing
landscape features unless: (A) such landscaping is replaced with native and/or drought-
resistant plants, trees or other landscape features approved by the City and (B) the
applicant submits and adheres to a landscape maintenance plan, and (C) tree removal, if
any, complies with Lake Oswego Municipal Code Chapter 55 Tree Code. (Tree protection
is required for construction pursuant to the Tree Code).
The landscape plan must include existing vegetation, and vegetation proposed to be
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removed or trimmed, and the landscape plan must identify proposed landscaping by
species type, size and location. Landscape selection and maintenance must be performed
in accordance with Lake Oswego Municipal Code sections 50.06.004(1) and 50.06.010(2),
as may be amended or superseded.
8. Site Security Measures. Small wireless facilities may incorporate reasonable and
appropriate site security measures, such as locks and anti-climbing devices, to prevent
unauthorized access,theft or vandalism. Use of barbed wire, razor ribbon, or any similarly
dangerous security measures is prohibited. Fencing or any other obstruction to the public
right of way is prohibited. All exterior surfaces on small wireless facilities shall be
constructed from or coated with graffiti-resistant materials.
9. Signage;Advertisements. All small wireless facilities must include signage that accurately
identifies the site owner/operator, the owner/operator's site name or identification
number and a toll-free number to the owner/operator's network operations center.
Signage shall comply with Lake Oswego Municipal Code Chapter 47 Sign Code.
Small wireless facilities may not bear any branding, advertisements, or other signage
unless expressly approved by the City, required by law or recommended under FCC,
OSHA, or other United States governmental agencies for compliance with RF emissions
regulations.
10. Compliance with Health and Safety Regulations. All small wireless facilities shall be
designed, constructed, operated and maintained in compliance with all generally
applicable health and safety regulations, which includes without limitation all applicable
regulations for human exposure to RF emissions.
11. Encroachments over Private Property. Small wireless facilities may not encroach onto or
over any private or other property outside the public rights-of-way.
12. Backup Power Sources. Fossil-fuel based backup power sources shall not be permitted
within the public rights-of-way; provided, however, that connectors or receptacles may
be installed for temporary backup power generators used in an emergency declared by
federal, state or local officials.
13. Obstructions; Public Safety. Small wireless facilities and any associated equipment or
improvements shall not physically interfere with or impede access to any: (A) worker
access to any above-ground or underground infrastructure for traffic control, streetlight
or public transportation, including without limitation any curb control sign, parking meter,
vehicular traffic sign or signal, pedestrian traffic sign or signal, barricade reflectors; (B)
access to any public transportation vehicles, shelters, street furniture or other
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improvements at any public transportation stop; (C) worker access to above-ground or
underground infrastructure owned or operated by any public or private utility agency; (D)
fire hydrant or water valve; (E) access to any doors, gates, sidewalk doors, passage doors,
stoops or other ingress and egress points to any building appurtenant to the rights-of-
way; (F) access to any fire escape; (G) sidewalks and active transportation access,
including walking or biking, or (H) facilities similar to those in (A)-(G).
14. Utility Connections. All cables and connectors for telephone, data backhaul, primary
electric and other similar utilities must be routed underground in conduits large enough
to accommodate future collocated wireless facilities. Undergrounded cables and wires
must transition directly into the pole base without any external doghouse.
All cables, wires and connectors between the underground conduits and the antennas
and other accessory equipment shall be routed through or concealed from view within:
(A) internal risers or conduits if on a concrete, composite or similar pole; or (B) a cable
shroud or conduit mounted as flush to the pole as possible if on a wood pole or other pole
without internal cable space. The City shall not approve new overhead utility lines or
service drops merely because compliance with the undergrounding requirements would
increase the project cost.
15. Spools and Coils. To reduce visual clutter and deter vandalism, excess fiber optic or
coaxial cables shall not be spooled, coiled or otherwise stored on the pole outside
equipment cabinets or shrouds.
16. Electric Meters.Small wireless facilities shall use flat-rate electric service or other method
that obviates the need for a separate above-grade electric meter. If flat-rate service is not
available, applicants may install a shrouded smart meter. The City shall not approve a
separate ground-mounted electric meter pedestal.
17. Street Trees.To preserve existing landscaping and street trees in the public rights-of-way,
all work performed in connection with small wireless facilities shall comply with Lake
Oswego Municipal Code Chapter 55 Tree Code. Work shall not cause any street trees to
be damaged or removed. Where facilities are to be installed adjacent to any street tree,
the applicant shall provide tree protection measures as required by the Planning
Department in accordance with Article 55.08.
SECTION 3.9. PREAPPROVED DESIGNS.
1. Purpose. To expedite the review process and encourage collaborative designs among
applicants and the City,the City may designate one or more preapproved designs for small
wireless facilities and other infrastructure deployments. This Section 3.9 sets out the
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process to establish or repeal a preapproved design and the expedited review procedures
and findings applicable to these applications.
2. Adoption.The City may, in the City's discretion, establish a preapproved design when the
City finds that a proposed preapproved design substantially complies with the design
standards in this Policy. A decision by the City not to adopt a proposed preapproved
design or the City's failure to act on a request for a proposed preapproved design is not
appealable.
3. Repeal. The City may repeal any preapproved design by written notice posted at Lake
Oswego City Hall. The repeal shall be immediately effective. The City's repeal, refusal to
repeal or failure to act on a request to repeal a preapproved design is not appealable.
4. Modified Review Process. In nonresidential zones, applications for a preapproved design
shall not be subject to the notice requirements in Section 3.5(1). In residential zones,
applications for a preapproved design shall remain subject to the notice requirements in
Section 3.5(1).
5. Modified Approval Criteria. When an applicant submits a complete application for a
preapproved design, the City shall presume that the findings for approval in Sections
3.5(2)(a) and 3.5(2)(e) are satisfied and shall evaluate the application for compliance with
the findings for approval in Sections 3.5(2)(b), 3.5(2)(c), 3.5(2)(d) and 3.5(2)(f).
6. Nondiscrimination. Any applicant may propose to use any preapproved design whether
the applicant initially requested that the City adopt such preapproved design or not. The
City's decision to adopt a preapproved design expresses no preference or requirement
that applicants use the specific vendor or manufacturer that fabricated the design
depicted in the preapproved plans. Any other vendor or manufacturer that fabricates a
facility to the standards and specifications in the preapproved design with like materials,
finishes and overall quality shall be acceptable as a preapproved design.
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ATTACHMENT 4
RESOLUTION 24-29
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LAKE OSWEGO AMENDING RESOLUTION
19-03, REGARDING FEES AND MINIMUM INSURANCE LIMITS FOR UTILITIES OPERATING IN THE
PUBLIC RIGHTS-OF-WAY.
WHEREAS,the City of Lake Oswego has constitutional and charter authority to manage its rights-
of-way; and
WHEREAS, on January 2nd, 2019, the Lake Oswego City Council adopted Ordinance 2804, which
is codified as Lake Oswego Code Chapter 51, and which regulates utilities operating in the City's
rights-of-way and exercises the City's authority to secure compensation to the City and its
residents for utility use of the rights-of-way; and
WHEREAS, On March 18, 2025, a Public Hearing was held regarding Resolution 24-29, Ordinance
2931, and LOC Chapter 51 (Utility Facilities in Public Rights-of-Way) Amendments and Fees.
Testimony was received by wireless stakeholders expressing concerns to the proposed
ordinance; and
WHEREAS, Mayor moved to reopen the public hearing and continue to the May 6, 2025 Council
meeting. This motion passed 7-0. In order for the City to allow time to review and revise the
ordinances, the public hearing continuance was postponed until September 16, 2025; and
WHEREAS, Chapter 51 provides that the City Council shall by resolution establish a registration
fee, license application fee, minimum insurance limits, and rights-of-way fees for utility use of
the public right-of-way; and
WHEREAS, the application and registration fee amounts are intended to be a reasonable
approximation of the City's actual administrative cost to process the application and annual
registration; and
WHEREAS,the City of Lake Oswego Wireless Facilities in the Public Rights-of-Way Policy provides
that the City Council shall by resolution establish wireless facility permit fees, attachment fees,
pre-application meeting fees, and pole knock-down fees.
Resolution 24-29
Page 1 of 4
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Lake Oswego that:
Section 1. The right-of-way fee established per LOC 51.01.130 shall be as follows, to the extent
permitted under applicable law:
Utility Service Utility Operator Fee (persons that own,place, operate or
maintain utility facilities in the City's public rights-of-way)
Electric 5% of gross revenue
Natural Gas 5% of gross revenue
Communications Wireline Communications Facilities: 5% of gross revenue
Wireless Communications Services Facilities:
Small Cell Wireless Facilities: $627.47/facility/year (The fee shall
increase 3% annually on January 1" of each year, beginning
January 1, 2026, rounded to the nearest $1.00).
Any utility operator that Based on Total Linear Feet of Utility Facilities in the Rights-of-
does not earn Gross Way:
Revenue within the City. Up to 5,000: $6,956
(See LOC 51.01.050 for
definition of Gross 5,001-10,000: $9,274
Revenue) 10,001-20,000: $13,910
More than 20,000: $23,186
The minimum fee shall increase 3% annually on January 1Stof
each year, beginning January 1, 2026
Water 0%
Stormwater 0%
Sewer 0%
Resolution 24-29
Page 2 of 4
Utility Service Utility Service Provider Fee(persons that utilize utility facilities
to provide utility service(s)in the City)
Electric 5% of gross revenue
Natural Gas 5% of gross revenue
Communications Wireline: 5% of gross revenue
Wireless Communications Services: $400/year
Water 0%
Stormwater 0%
Sewer 0%
Small Cell Wireless Facility (SWF) shall have the meaning provided in 47 C.F.R § 1.6002(I), as may
be amended or superseded:
Section 2. The Rights-of-Way License Application fee established per LOC 51.01.070 shall be
$281.39 for a five-year license. (The fee shall increase 3% annually on January 1st of each year,
beginning January 1, 2026, rounded to the nearest $1.00).
Section 3. The annual registration fee established per LOC 51.01.060 shall be $168.83. (The fee
shall increase 3%annually on January 1stof each year, beginning January 1, 2026, rounded to the
nearest $1.00).
Section 4. Attachment fees per the City of Lake Oswego Wireless Facilities in Public Rights-of-
Way Policy shall be as follows, to the extent permitted under applicable law:
Type of Fee Fee Amount
Wireless Facility permit fee, charged for each wireless facility
application submitted to the City
$914.61 per application
Additional fee for optional permit pre-application meeting $545.74 per occurrence
All fees shall increase 3%annually on January 1st of each year, beginning January 1,2026, rounded
to the nearest $1.00.
Resolution 24-29
Page 3 of 4
Section 5.The minimum insurance limits that must be maintained by all utility operators per LOC
51.01.150 shall be as follows:
A. Comprehensive general liability insurance with limits not less than:
a. Three million dollars ($3,000,000.00) for bodily injury or death to each person;
b. Three million dollars ($3,000,000.00) for property damage resulting from any one
accident; and
c. Three million dollars ($3,000,000.00) for all other types of liability.
B. Motor vehicle liability insurance for owned, non-owned and hired vehicles with a limit of
two million dollars ($2,000,000.00) per accident-combined single limit or two million
dollars ($2,000,000) bodily injury and one million dollars ($1,000,000) property damage.
c. Worker's compensation within statutory limits and employer's liability with limits of not
less than one million dollars ($1,000,000.00).
Section 6. Resolution 19-03 is hereby repealed.
Section 7. Effective Date. This Resolution shall take effect on the effective date of Ordinance
2931.
Considered and adopted at the regular meeting of the City Council of the City of Lake Oswego on
the 16th day of September, 2025.
AYES:
NOES:
ABSTAIN:
EXCUSED:
Joseph M. Buck, Mayor
ATTEST:
Laural Casey, City Recorder
APPROVED AS TO FORM:
Ellen Osoinach, City Attorney
Resolution 24-29
Page 4 of 4