A telecommunications franchise shall be required of any telecommunications carrier who desires to occupy public rights of way of the city.
A. Application: Any person that desires a telecommunications franchise pursuant to this chapter shall file an application with the city which shall include the following information:
1. The identity of the applicant.
2. A description of the telecommunications services that are to be offered or provided by the applicant over its telecommunications facilities within the city.
3. Preliminary engineering plans, specifications and a network map of the facilities to be located within the public rights of way in the city, including copies in a computerized format specified by the city (unless the applicant demonstrates that the format utilized was developed by the applicant and is proprietary) and all in sufficient detail to identify:
a. The location and route requested for applicant's proposed telecommunications facilities;
b. The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate.
4. If applicant is proposing to install aboveground facilities, to the extent that the applicant will be using utility poles, evidence from the pole owner that usable space is available for locating the applicant's telecommunications facilities on existing utility poles along the proposed route; and if usable space is not available in some or all service areas, an indication of these locations and a "make ready" schedule for completion.
5. If the applicant is proposing an underground installation in existing ducts or conduits within the public rights of way, provide information in sufficient detail to identify:
a. The excess capacity currently available in such ducts or conduits before installation of applicant's telecommunications facilities;
b. The excess capacity, if any, that will exist in such ducts or conduits after installation of applicant's telecommunications facilities.
6. If applicant is proposing an underground installation within new ducts or conduits to be constructed within the public rights of way:
a. The location proposed for the new ducts or conduits;
b. The excess capacity that will exist in such ducts or conduits after the installation of applicant's telecommunications facilities.
7. A preliminary construction schedule and completion date.
8. Financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant's financial ability to construct, operate, maintain, relocate and remove the facilities.
9. Information in sufficient detail to establish the applicant's technical qualifications, experience and expertise regarding the telecommunications facilities and services described in the application.
10. Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities and to offer or provide the telecommunications services proposed.
11. Whether the applicant intends to provide cable service, video dial tone service or other video programming service, and sufficient information to determine whether such service is subject to cable franchising.
12. An accurate map showing the location of any existing telecommunications facilities in the city that applicant intends to use or lease.
13. A description of the services or facilities that the applicant will offer or make available to the city and other public, educational and governmental institutions.
14. As builts, after completion of initial construction.
15. A description of applicant's access and line extension policies.
16. The area or areas of the city the applicant desires to serve and a schedule for buildout to the entire franchise area.
B. Application And Review Fee:
1. Any application for a franchise pursuant to this section shall pay an application and review fee in an amount to be determined by resolution of the city council. This subsection shall not apply to a telecommunication utility which provides only local exchange access.
2. The application and review fee shall be deposited with the city as part of the application filed pursuant to subsection A of this section.
C. Determination By The City: The city shall issue a written determination granting or denying the application in whole or in part, applying the standards listed herein. If the application is denied, the written determination shall include the reasons for denial.
D. Rights Granted: No franchise granted under this chapter shall convey any right, title or interest in the public rights of way, but shall be deemed a grant to use and occupy the public rights of way for the limited purposes and term, and upon the conditions stated in the agreement.
E. Term: Unless otherwise specified in a franchise agreement, a telecommunications franchise granted under this chapter shall be in effect for a term of five (5) years.
F. Franchise Territory: Unless otherwise specified in a franchise agreement, telecommunications franchise granted under this chapter shall be limited to the specific geographic area of the city to be served by the franchise grantee, and the city's public rights of way necessary to serve such areas.
G. Amendments: A franchise agreement may be amended upon the occurrence of any of the following conditions:
1. A new application and grant shall be required of any telecommunications carrier that desires to extend or locate its telecommunications facilities in public rights of way of the city which are not included in a franchise previously granted under this chapter unless the grantee has already received a franchise to occupy public rights of way in all areas of the city.
2. If ordered by the city to locate or relocate its telecommunications facilities in public rights of way not included in a previously granted franchise, the city shall grant an amendment without further application.
3. A new application and grant shall be required of any telecommunications carrier that desires to provide a service which was not included in a franchise previously granted under this chapter.
4. Upon mutual agreement of the parties to the franchise agreement.
H. Renewal Applications: A grantee that desires to renew its franchise under this chapter shall, not less than ninety (90) days before expiration of the current agreement, file an application with the city for renewal of its franchise which shall include the following information:
1. The information required pursuant to this section that was not previously provided to the city in connection with grantee's existing franchise agreement.
2. Any information required pursuant to the franchise agreement between the city and the grantee.
I. Renewal Determinations: The city council shall make all renewal determinations, which shall not be unreasonably denied based on the requirements of this chapter, and any applicable state and federal laws. The city shall issue a written determination granting or denying the renewal application in whole or in part, applying the following standards. If the renewal application is denied, the written determination shall include the reasons for nonrenewal.
J. Obligation To Cure As A Condition Of Renewal: No franchise shall be renewed until any ongoing violations or defaults in the grantee's performance of the agreement, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the city.
K. Assignments Or Transfers Of Grant, Notice To City:
1. A franchise may not, directly or indirectly, be transferred or otherwise, assigned without the prior consent of the city, which consent shall not be unreasonably withheld, conditioned or delayed, and then only on such reasonable conditions as may be prescribed in such consent.
a. Grantee and the proposed assignee or transferee of the franchise shall agree, in writing, to assume and abide by all of the provisions of the franchise.
b. Any transfer or assignment of a telecommunications franchise without prior written approval of the city under this subsection or pursuant to a franchise agreement shall be void and is cause for revocation of the franchise agreement.
c. Notwithstanding the foregoing in this subsection, grantee may assign the franchise in whole or in part without the city's prior written approval to: 1) any entity controlled by or under common control with grantee; 2) any surviving successor entity or newly created successor entity in the event of a merger, reorganization or consolidation involving grantee; and 3) the purchaser of all or substantially all of grantee's assets located in Umatilla, Oregon.
L. Suspension, Revocation Or Termination Of Franchise: A franchise to use or occupy public rights of way of the city may be suspended or revoked for the following reasons:
1. Construction or operation in the city or in the public rights of way of the city without a franchise grant of authorization.
2. Construction or operation without a construction permit or at an unauthorized location and failure to cure after written notice as provided herein.
3. Invalid transfer or assignment under subsection K of this section.
4. Failure to comply with subsection K of this section with respect to sale, transfer or assignment of a franchise.
5. Intentional misrepresentation of a material fact under this chapter by or on behalf of a grantee in any application to the city.
6. Abandonment of telecommunications facilities in the public rights of way as described herein.
7. Failure to relocate or remove facilities as required in this chapter.
8. Wilful or continued failure to pay, fees or costs required under this chapter unless subject to a bona fide dispute.
9. Insolvency or bankruptcy of the grantee.
10. Violation of a material provision of this chapter.
11. Violation of a material term of a franchise agreement.
M. Notice And Duty To Cure: Pursuant to subsection L of this section, in the event that the city believes that grounds exist for suspension or revocation of a franchise, the city shall give the grantee written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the grantee a reasonable period of time not exceeding sixty (60) days to furnish evidence that:
1. Corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance.
2. Rebuts the alleged violation or noncompliance.
3. It would be in the public interest to impose some penalty or sanction less than suspension or revocation.
N. Termination/Sanctions Of Franchise: If persuaded that the grantee has violated or failed to comply with material provisions of this chapter, or of a franchise agreement, the city council shall determine whether to suspend or revoke the franchise, or to establish some lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors:
1. Whether the misconduct was egregious.
2. Whether substantial harm resulted.
3. Whether the violation was intentional.
4. Whether there is a history of prior violations of the same or other requirements.
5. Whether there is a history of overall compliance.
6. Whether the violation was voluntarily disclosed, admitted or cured.
O. Damage To Grantee's Facilities: Unless directly and proximately caused by wilful, intentional, malicious, or negligent acts by the city, the city shall not be liable for any damage to or loss of any telecommunications facility within the public rights of way of the city as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind in the public rights of way by or on behalf of the city, or for any consequential losses resulting directly or indirectly from such work.
P. Nondiscrimination: A grantee shall make its telecommunications services available to any customer within its franchise area who shall request such service, without discrimination as to the terms, conditions, rates or charges for grantee's services; provided, however, that nothing in this chapter shall prohibit a grantee from making any reasonable classifications among differently situated customers.
Q. Franchise Fees: As compensation for the benefits and privileges under its franchise and in consideration of permission to use the right of way of the city, the grantee shall pay a quarterly franchise fee to the city, through the duration of its franchise, as follows:
1. The minimum quarterly franchise fee shall be set by resolution of the council. (Ord. 772, 4-19-2012)
2. The franchise fee for a telecommunication utility shall equal seven percent (7%) of its gross revenues on exchange access services earned within the boundaries of the city. (Ord. 781, 3-5-2013)
3. Except for limited use telecommunication grantees, the franchise fee shall equal a percent of the grantee's gross revenues derived from grantee's provision of local exchange access telecommunications services to retail customers. The amount of the percent for retail customers shall be set by resolution of the council.
4. The annual franchise fee collectible from a telecommunications utility shall not exceed the maximum amount under Oregon law. The city shall accept from a telecommunications utility, in full payment of the franchise fee, the maximum amount allowed under Oregon law. On request, the telecommunications utility must provide documentation to support its calculation.
5. A grantee providing resold telecommunications services or facilities shall be entitled to a credit against its franchise fee for an amount equal to a percentage of the price paid for such services or facilities at wholesale. Such percentage shall be set by resolution of the council.
6. So long as it registers with the city as required and pays the fees required for grantees set forth in subsections Q1 and Q2 of this section, a reseller may use another person's facilities to engage in telecommunications activities in the right of way without obtaining a franchise, providing the reseller does not, either itself or through an affiliate, own or lease, control or manage any facilities in the right of way and is not involved in construction or repair of facilities in the right of way.
7. For purposes of calculating the fees to be paid by a reseller, the amount of compensation paid by the reseller to the owner or manager of facilities in the right of way for the services it resells shall be deducted from the reseller's gross revenues before applying the percentage rates described in subsection Q3 of this section.
8. Payment shall be made by each April 30, July 31, October 31 and January 31 for the quarter just ended.
9. Any grantee who fails to remit any fee imposed by this chapter within thirty (30) days of the date it is due, shall pay interest at the rate of one and one-half percent (11/2%) per month or fraction thereof on the amount of the fee from the date on which the remittance first became due until paid.
R. Cable Franchise: Telecommunication carriers providing cable service shall be subject to the city's cable franchise requirements.
S. Insurance: Unless otherwise provided in a license or franchise agreement, each grantee shall, as a condition of the grant, secure and maintain the following liability insurance policies insuring both the grantee and the city, and its elected and appointed officers, officials, agents and employees as additional insured:
1. Comprehensive general liability insurance with limits not less than one million dollars ($1,000,000.00) for bodily injury or death to each person per occurrence; one million dollars ($1,000,000.00) for property damage per occurrence; and, one million dollars ($1,000,000.00) per occurrence for all other types of liability and three million dollars ($3,000,000.00) in the aggregate for each of the above.
2. Automobile liability for owned, nonowned and hired vehicles with a limit of one million dollars ($1,000,000.00) for each person and one million dollars ($1,000,000.00) per occurrence and three million dollars ($3,000,000.00) in the aggregate.
3. Workers' compensation within statutory limits and employer's liability insurance with limits of not less than one million dollars ($1,000,000.00).
4. The liability insurance policies required by this subsection shall be maintained by the grantee throughout the term of the telecommunications license or franchise, and such other period of time during which the grantee is operating without a franchise, or is engaged in the removal of its telecommunications facilities. Evidence of insurance must be presented regarding the above insurance requirements and grantee will endeavor to provide at least thirty (30) days written notice to the city prior to any cancellation or nonrenewal.
5. The insurance policy requirements of this subsection may be met by a program of self-insurance acceptable to the city.
T. General Indemnification: Each franchise agreement shall include, to the extent permitted by law, grantee's express undertaking to defend, indemnify and hold the city and its officers, employees, agents and representatives harmless from and against any and all damages, losses and expenses, including reasonable attorney fees and costs of suit or defense, to the extent arising out of or resulting from the negligent, careless or wrongful acts, omissions, failures to act or misconduct of the grantee or its affiliates, officers, employees, agents, contractors or subcontractors in the construction, operation, maintenance, repair or removal of its telecommunications facilities, and in providing or offering telecommunications services over the facilities or network, whether such acts or omissions are authorized, allowed or prohibited by this chapter or by a grant agreement made or entered into pursuant to this chapter. (Ord. 772, 4-19-2012)