The ordinance codified in this Chapter shall be known and may be referenced as the utility facilities in public rights of way ordinance. (Ord. 2012-04 § 1, 2012.)
12.02.020 Purpose and Intent.
The purpose and intent of this Chapter is to:
A. Permit and manage reasonable access to the rights of way of the City for utility purposes and conserve the limited physical capacity of those rights of way held in trust by the City consistent with applicable state and federal law;
B. Assure that the City’s current and ongoing costs of granting and regulating access to and the use of the rights of way are fully compensated by the persons seeking such access and causing such costs;
C. Secure fair and reasonable compensation to the City and its residents for permitting use of the rights of way;
D. Assure that all utility companies, persons and other entities owning or operating facilities and/or providing services within the City register and comply with the ordinances, rules and regulations of the City;
E. Assure that the City can continue to fairly and responsibly protect the public health, safety and welfare of its citizens;
F. Encourage the provision of advanced and competitive utility services on the widest possible basis to businesses and residents of the City; and
G. Comply with applicable provisions of state and federal law. (Ord. 2012-04 § 2, 2012.)
12.02.030 Jurisdiction and Management of the Public Rights of Way.
A. The City has jurisdiction and exercises regulatory management over all rights of way within the City under authority of the City charter and state law.
B. The City has jurisdiction and exercises regulatory management over each right of way whether the City has a fee, easement, or other legal interest in the right of way, and whether the legal interest in the right of way was obtained by grant, dedication, prescription, reservation, condemnation, annexation, foreclosure or other means.
C. The exercise of jurisdiction and regulatory management of a 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 right of way.
D. The provisions of this Chapter are subject to and will be applied consistent with applicable state and federal laws, rules and regulations, and, to the extent possible, shall be interpreted to be consistent with such laws, rules and regulations. (Ord. 2012-04 § 3, 2012.)
12.02.040 Regulatory Fees and Compensation Not a Tax.
A. The fees and costs provided for in this Chapter, and any compensation charged and paid for use of the rights of way provided for in this Chapter, are separate from, and in addition to, any and all other federal, state, local, and City charges as may be levied, imposed, or due from a utility operator, its customers or subscribers, or on account of the lease, sale, delivery, or transmission of utility services.
B. The City has determined that any fee or tax 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.
C. The fees and costs provided for in this Chapter are subject to applicable federal and state laws. (Ord. 2012-04 § 4, 2012.)
For the purpose of this Chapter the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The words “shall” and “will” are mandatory and “may” is permissive.
“Cable service” is to be defined consistent with federal laws and means the one-way transmission to subscribers of: (i) video programming, or (ii) other programming service; and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
“City” means the City of Sandy, an Oregon municipal corporation, and individuals authorized to act on the City’s behalf.
“City Council” means the elected governing body of the City of Sandy, Oregon.
“City facilities” means City or publicly-owned structures or equipment located within the right of way or public easement used for governmental purposes.
“Communications services” means any service provided for the purpose of transmission of information including, but not limited to, voice, video, or data, without regard to the transmission protocol employed, whether or not the transmission medium is owned by the provider itself and whether or not the transmission medium is wireline. Communications service includes all forms of telephone services and voice, video, data or information transport, but does not include: (1) cable service; (2) open video system service, as defined in 47 C.F.R. 76; (3) private communications system services provided without using the public rights of way or private communications system services that use the public rights of way without imposing any additional burden on the public rights of way; (4) over-the-air radio or television broadcasting to the public-at-large from facilities licensed by the Federal Communications Commission or any successor thereto; and (5) direct-to-home satellite service within the meaning of Section 602 of the Telecommunications Act.
“Force majeure” means an act, event or occurrence caused by fire, riot, war, acts of God, nature, sovereign, or public enemy, strikes or freight embargoes where such act, event or occurrence and the facts or circumstances leading to the event are completely outside the utility operator’s control.
“License” means the authorization granted by the City to a utility operator pursuant to this Chapter.u
“Person” means and includes any individual, firm, sole proprietorship, corporation, company, partnership, co-partnership, joint-stock company, trust, limited liability company, association or other organization, including any natural person or any other legal entity.
“Private communications system” means a system, including the construction, maintenance or operation of the system, for the provision of a service or any portion of a service which is owned or operated exclusively by a person for their use and not for resale, directly or indirectly. “Private communications system” includes services provided by the state of Oregon pursuant to ORS 190.240 and 283.140.
“Public utility easement” means the space in, upon, above, along, across, over or under an easement for the constructing, reconstructing, operating, maintaining, inspecting, and repairing of utilities facilities. This definition applies only to easements the City has authority to manage or authority to grant utility operators licenses to occupy and use for utility facilities. “Public utility easement” does not include an easement solely for the constructing, reconstructing, operating, maintaining, inspecting, and repairing of City facilities, or where the proposed use by the utility operator is inconsistent with the terms of any easement granted to the City.
“Right of way” means and includes, but is not limited to, the space in, upon, above, along, across, over or under the public streets, roads, highways, lanes, courts, ways, alleys, boulevards, bridges, trails, paths, sidewalks, bicycle lanes, public utility easements and all other public ways or areas, including the subsurface under and air space over these areas, but does not include parks, parkland, or other City property not generally open to the public for travel. This definition applies only to the extent of the City’s right, title, interest and authority to grant a license to occupy and use such areas for utility facilities.
“State” means the state of Oregon.
“Utility facility” or “facility” means any physical component of a system, including but not limited to the poles, pipes, mains, conduits, ducts, cables, wires, transmitters, plant, equipment and other facilities, located within, under or above the rights of way, any portion of which is used or designed to be used to deliver, transmit or otherwise provide utility service.
“Utility operator” or “operator” means any person who owns, places, operates or maintains a utility facility within the City.
“Utility service” means the provision, by means of utility facilities permanently located within, under or above the rights of way, whether or not such facilities are owned by the service provider, of electricity, natural gas, communications services, cable services, water, sewer, and/or storm sewer to or from customers within the corporate boundaries of the City, and/or the transmission of any of these services through the City whether or not customers within the City are served by those transmissions.
“Work” means the construction, demolition, installation, replacement, repair, maintenance or relocation of any utility facility, including but not limited to any excavation and restoration required in association with such construction, demolition, installation, replacement, repair, maintenance or relocation. (Ord. 2012-04 § 5, 2012.)
A. License Required.
1. Except those utility operators with a valid franchise agreement from the City, every person shall obtain a license from the City prior to conducting any work in the rights of way.
2. Every person that owns or controls utility facilities in the rights of way as of the effective date of this Chapter shall apply for a license from the City within forty-five days of the later of: (1) the effective date of this Chapter, or (2) the expiration of a valid franchise from the City, unless a new franchise is granted by the City pursuant to subsection E of this section12.02.070.
B. 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 application to identify the applicant, its legal status, including its authorization to do business in Oregon, a description of the type of utility service provided or to be provided by the applicant, and the facilities over which the utility service will be provided, and other information reasonably necessary to determine the applicant’s ability to comply with the terms of this Chapter.
C. License Application Fee. The application shall be accompanied by a nonrefundable application fee or deposit 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.
D. Determination by City. The City shall issue, within a reasonable period of time, 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 rights of way to accommodate the applicant’s proposed utility facilities and the applicable federal, state and local laws, rules, regulations and policies.
E. Franchise Agreements. If the public interest warrants, the City and utility operator may enter into a written franchise agreement that includes terms that clarify, enhance, expand, waive or vary the provisions of this Chapter, consistent with applicable state and federal law. The franchise may conflict with the terms of this Chapter with the review and approval of City Council. The franchisee shall be subject to the provisions of this Chapter to the extent such provisions are not in conflict with any such franchise.
1. The license granted hereunder shall authorize and permit the licensee, subject to the provisions of the City code and other applicable provisions of state or federal law, to construct, place, maintain, repair and operate utility facilities in the rights of way for the term of the license.
2. Any license granted pursuant to this Chapter shall not convey equitable or legal title in the rights of way, and may not be assigned or transferred except as permitted in subsection K of this section.
3. Neither the issuance of the license nor any provisions contained therein shall constitute a waiver or bar to the exercise of any governmental right or power, police power or regulatory power of the City as may exist at the time the license is issued or thereafter obtained.
G. Term. Subject to the termination provisions in subsection M of this section, the license granted pursuant to this Chapter will remain in effect for a term of five years. The City shall provide six months’ notice to a licensee prior to the expiration of the license.
H. License Nonexclusive. No license granted pursuant to this section shall confer any exclusive right, privilege, license or franchise to occupy or use the 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 rights of way, for similar or different purposes. The license is subject to all recorded deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims of title of record that may affect the rights of way. Nothing in the license shall be deemed to grant, convey, create, or vest in licensee a real property interest in land, including any fee, leasehold interest or easement.
I. Reservation of City Rights. Nothing in the license shall be construed to prevent the City from grading, paving, repairing and/or altering any 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. If any of licensee’s utility facilities located in a right of way interfere with the construction, repair, replacement, alteration or removal of any rights of way, public work, City utility, City improvement or City facility, except those providing utility services in competition with a licensee, licensee’s facilities shall be removed or relocated as provided in subsections12.02.090 C, D and E of this Chapter, in a manner acceptable to the City and consistent with industry standard engineering and safety codes.
J. Multiple Services.
1. A utility operator that provides or transmits or allows the provision or transmission of utility services and other services over its facilities is subject to the license and privilege tax requirements of this Chapter for the portion of the facilities and extent of utility services delivered over those facilities.
2. A utility 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 privilege tax for each utility service.
K. Transfer or Assignment. To the extent permitted by applicable state and federal laws, the licensee shall obtain the written consent of the City prior to the transfer or assignment of the license. The license shall not be transferred or assigned unless the proposed transferee or assignee is authorized under all applicable 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 and state laws to approve such transfer or assignment. If a license is transferred or assigned, the transferee or assignee shall become responsible for all facilities of the licensee at the time of transfer or assignment. A transfer or assignment of a license does not extend the term of the license.
L. Renewal. At least ninety, but no more than one hundred eighty, days prior to the expiration of a license granted pursuant to this section, a licensee seeking renewal of its license shall submit a license application to the City, including all information required in subsection B of this section and the application fee required in subsection C of this section. The City shall review the application as required by subsection D of this section and grant or deny the license within ninety days of submission of the application. 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 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 and/or grant the license. If the City requires the licensee to cure or submit a plan to cure a violation, the City will grant or deny the license application within ninety days of confirming that the violation has been cured or of accepting the licensee’s plan to cure the violation.
1. 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:
a. Material violation of any of the provisions of this Chapter;
b. Material violation of any provision of the license;
c. Misrepresentation in a license application;
d. Failure to pay taxes, compensation, fees or costs due the City after final determination of the taxes, compensation, fees or costs;
e. Failure to restore the rights of way after construction as required by this Chapter or other applicable state and local laws, ordinances, rules and regulations;
f. Failure to comply with technical, safety and engineering standards related to work in the rights of way; or
g. Failure to obtain or maintain any and all licenses, permits, certifications and other authorizations required by state or federal law for the placement, maintenance and/or operation of the utility facilities.
2. Standards for Revocation or Termination. In determining whether termination, revocation or some other sanction is appropriate, the following factors shall be considered:
a. The egregiousness of the misconduct;
b. The harm that resulted;
c. Whether the violation was intentional;
d. The utility operator’s history of compliance; and/or
e. The utility operator’s cooperation in discovering, admitting and/or curing the violation.
3. Notice and Cure. The City shall give the utility operator written notice of any apparent violations before terminating a license. The notice shall include a short and concise statement of the nature and general facts of the violation or noncompliance and provide a reasonable time (no less than twenty and no more than forty days) for the utility operator to demonstrate that the utility operator has remained in compliance, that the utility operator has cured or is in the process of curing any violation or noncompliance, or that it would be in the public interest to impose a penalty or sanction less than termination or revocation. If the utility operator is in the process of curing a violation or noncompliance, the utility operator must demonstrate that it acted promptly and continues to actively work on compliance. If the utility operator does not respond or if the City manager or designee determines that the utility operator’s response is inadequate, the City manager or designee 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. (Ord. 2012-04 § 6, 2012.)
12.02.070 Construction and Restoration.
A. Construction Codes. Utility facilities shall be constructed, installed, operated and maintained in accordance with the permit conditions and all applicable federal, state and local codes, rules and regulations. When a utility operator, or any person acting on its behalf, does any work in or affecting the rights of way, the utility operator shall, at its own expense, promptly restore the rights of way as directed by the City consistent with the permit, applicable City codes, rules and regulations.
1. No person shall perform any work on utility facilities within the rights of way without first obtaining all required permits. The City shall not issue a permit for the construction, installation, maintenance or repair of utility facilities unless the utility operator of the facilities has registered and applied for and received the license required by this Chapter, or has a current franchise with the City, and all applicable fees have been paid. Utility operators are not required to obtain a permit for service drops to customer premises or routine maintenance or repairs where such drops, repairs or maintenance do not require cutting, digging, breaking of, or damage to, the right of way.
2. In the event of an emergency, a utility operator with a license pursuant to this Chapter or its contractor may perform work on its utility facilities without first obtaining a permit from the City, provided that, to the extent reasonably feasible, it attempts to notify the City prior to commencing the emergency work and in any event applies for a permit from the City as soon as reasonably practicable, but not more than two business days after commencing the emergency work. In the event an act of God, extreme weather or similar circumstances beyond the utility operator’s control prevents the utility operator from applying for a permit as required in the previous sentence, the utility operator will not be in violation of this Chapter so long as it applies for the permit as soon as reasonably practicable. As used in this subsection, “emergency” means a circumstance involving (a) an unscheduled outage affecting one or more current customers of the licensee, or (b) danger to public safety that must be addressed within twenty-four (24) hours in order to protect the public. Emergency also includes situations where the failure of licensee to act would result in (a) or (b) within twenty-four (24) hours.
3. Applications for permits to construct utility facilities shall be submitted upon forms to be provided by the City and shall be accompanied by drawings, plans and specifications with the level of detail required by the City.
4. Prior to issuance of a construction permit, the applicant shall pay a permit fee in an amount to be determined by resolution of the City Council.
5. If satisfied that the applications, plans and documents submitted comply with all requirements of this Chapter, the Public Works Director shall issue a permit authorizing construction of the utility facilities, subject to such further conditions, restrictions or regulations affecting the time, place and manner of performing the work as they may deem necessary or appropriate.
6. Except in the case of an emergency, the permittee shall notify the Public Works Director not less than two business days in advance of any excavation or construction in the rights of way.
7. All construction practices and activities shall be in accordance with City standards, the permit and approved final plans and specifications for the utility facilities. The Public Works Director and their representatives shall be provided access to the work site and such further information as they may require to ensure compliance with such requirements.
8. All work which does not comply with the permit, the approved or corrected plans and specifications for the work, or the requirements of this Chapter, shall be removed at the sole expense of the permittee unless otherwise approved by the Public Works Director. The City is authorized to stop work in order to assure compliance with the provision of this Chapter unless an emergency or threat to public safety is deemed to exist, in which case the Public Works Director is authorized to allow the utility operator to perform such work as he or she deems necessary to remedy the emergency or threat to public safety, after which the utility operator must stop work.
9. The permittee shall promptly complete all construction activities so as to minimize disruption of the city rights of way and other public and private property. All construction work within the rights of way, including restoration, must be completed by the date specified in the construction permit unless an extension or an alternate schedule has been approved by the appropriate city official.
1. The City may require a performance bond or other form of surety acceptable to the City equal to at least one hundred percent of the estimated cost of the work within the rights of way of the City be provided before construction is commenced.
2. In the event a performance bond or other form of surety acceptable to the City is required, it shall:
a. remain in force until one year after substantial completion of the work, as determined in writing by the City, including restoration of rights of way and other property affected by the construction; and
b. guarantee, to the satisfaction of the City:
i. Timely completion of the work;
ii. That the work is performed in compliance with applicable plans, permits, technical codes and standards;
iii. Proper location of the facilities as specified by the City; and
iv. Restoration of the rights of way and other property affected by the work.
D. Injury to Persons or Property. A utility operator shall preserve and protect from injury or damage other utility operators’ facilities in the rights of way, the public using the rights of way and any adjoining property, and take other necessary measures to protect life and property, including but not limited to buildings, walls, fences, trees or facilities that may be subject to damage from the permitted work. A utility 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.
1. When a utility operator, or any person acting on its behalf, does any work in or affecting any 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 the permit, applicable federal, state and local laws, codes, ordinances, rules and regulations.
2. If weather or other conditions beyond the utility operator’s control do not permit the complete restoration required by the City, the utility operator shall temporarily restore the affected rights of way or property. Such temporary restoration shall be at the utility operator’s sole expense and the utility 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 may be subject to approval by the City.
3. If the utility operator fails to restore rights of way or property as required in this Chapter, the City shall give the utility operator written notice and provide the utility operator a reasonable period of time not less than ten days, unless an emergency or threat to public safety is deemed to exist, and not exceeding thirty days to restore the rights of way or property. If, after said notice, the utility operator fails to restore the rights of way or property as required in this Chapter, the City shall cause such restoration to be made at the expense of the utility operator. To the extent the restoration requires the City to move, alter or perform any work on or to the utility operator’s facilities, the City will usequalified personnel or contractors consistent with applicable state and federal safety laws and regulations.
F. Inspection. Every utility operator’s facilities shall be subject to the right of periodic inspection by the City to determine compliance with the provisions of this Chapter and all other applicable state and City codes, ordinances, rules and regulations. Every utility operator shall cooperate with the City in permitting the inspection of utility facilities upon request of the City. The utility operator shall perform all testing of compaction and paving, or permit the City to perform any such testing at the utility operator’s expense, required by the City to determine that the restoration of the right of way complies with the terms of this Chapter and applicable state and City codes, ordinances, rules and regulations.
G. Coordination of Construction. All utility operators are required to make a good faith effort to both cooperate with and coordinate their construction schedules with those of the City and other users of the rights of way.
1. Prior to January 1st of each year, utility operators shall provide the City with a schedule of known proposed construction activities for that year in, around or that may affect the rights of way.
2. Utility operators shall meet with the City annually, or as determined by the City, to schedule and coordinate construction in the rights of way.
3. All construction locations, activities and schedules within the rights of way shall be coordinated as ordered by the Public Works Director, to minimize public inconvenience, disruption, or damages as much as reasonably possible. (Ord. 2012-04 § 7, 2012.)
12.02.080 Location of Facilities.
A. Location of Facilities. Unless otherwise agreed to in writing by the City, whenever any existing electric utilities, cable facilities or communications facilities are located underground within a right of way of the City, the utility operator with permission to occupy the same right of way shall locate its facilities underground at its own expense. This requirement shall not apply to facilities used for transmission of electric energy at nominal voltages in excess of 35,000 volts or to pedestals, cabinets or other above-ground equipment of any utility operator. The City reserves the right to require written approval of the location of any such above-ground equipment in the right of way.
B. Interference with the rights of way. No utility operator or other person may locate or maintain its facilities so as to unreasonably interfere with the use of the rights of way by the City, by the general public or by other persons authorized to use or be present in or upon the rights of way. All use of the rights of way shall be consistent with City codes, ordinances, rules and regulations.
C. Relocation of Utility Facilities.
1. A utility operator shall, at no cost to the City, temporarily or permanently remove, relocate, change or alter the position of any utility facility within a right of way, including relocation of aerial facilities underground, when requested to do so in writing by the City.
2. Nothing herein shall be deemed to preclude the utility operator from requesting reimbursement or compensation from a third party, pursuant to applicable laws, regulations, tariffs or agreements, provided that the utility operator shall timely comply with the requirements of this section regardless of whether or not it has requested or received such reimbursement or compensation.
3. The City shall provide written notice of the time by which the utility operator must remove, relocate, change, alter or underground its facilities. If a utility operator fails to remove, relocate, alter or underground any utility facility as requested by the City and by the date reasonably established by the City, unless such failure is caused by circumstances that are not in the utility operator’s control, including but not limited to acts of God, extreme weather, and the failure of another utility operator to complete work in the necessary time period where such work is a prerequisite to the utility operator’s removal or relocation activities, the utility operator shall pay all costs incurred by the City due to such failure, including but not limited to costs related to project delays, and the City may cause the utility facility to be removed, relocated, altered or undergrounded at the utility operator’s sole expense using qualified personnel or contractors consistent with applicable state and federal safety laws and regulations. Upon receipt of a detailed invoice from the City, the utility operator shall reimburse the City for the costs the City incurred within thirty days.
D. Removal of Unauthorized Facilities.
1. Unless otherwise agreed to in writing by the City Manager, within thirty days following written notice from the City or such other time agreed to in writing by the City, a utility operator and any other person that owns, controls, or maintains any abandoned or unauthorized utility facility within a right of way shall, at its own expense, remove the facility and restore the right of way.
2. A utility system or facility is unauthorized under any of the following circumstances:
a. The utility facility is outside the scope of authority granted by the City under the license, franchise or other written agreement. This includes facilities that were never licensed or franchised and facilities that were once licensed or franchised but for which the license or franchise has expired or been terminated. This does not include any facility for which the City has provided written authorization for abandonment in place.
b. The facility has been abandoned and the City has not provided written authorization for abandonment in place. A facility is abandoned if it is not in use and is not planned for further use. A facility will be presumed abandoned if it is not used for a period of one year. A utility operator may overcome this presumption by presenting plans for future use of the facility.
c. The utility facility is not constructed or installed in accordance with the permit or is in a location not permitted by the construction permit, license, franchise or this Chapter.
d. The utility operator is in violation of a material provision of this Chapter and fails to cure such violation within thirty days of the City sending written notice of such violation, unless the City extends such time period in writing.
E. Removal by City.
1. The City retains the right and privilege to cut or move the facilities of any utility operator or similar entity located within the rights of way of the City, without notice, as the City may determine to be necessary, appropriate or useful in response to a public health or safety emergency. The City will use qualified personnel or contractors consistent with applicable state and federal safety laws and regulations to the extent reasonably practicable without impeding the City’s response to the emergency.
2. If the utility operator fails to remove any facility when required to do so under this Chapter, the City may remove the facility using qualified personnel or contractors consistent with applicable state and federal safety laws and regulations, and the utility operator shall be responsible for paying the full cost of the removal and any administrative costs incurred by the City in removing the facility and obtaining reimbursement. Upon receipt of a detailed invoice from the City, the utility operator shall reimburse the City for the costs the City incurred within thirty days. The obligation to remove shall survive the termination of the license or franchise.
3. The City shall not be liable to any utility operator for any damage to utility facilities, or for any consequential losses resulting directly or indirectly therefrom, by the City or its contractor in removing, relocating or altering the facilities pursuant to subsections B, C or D of this section or undergrounding its facilities as required by subsection A of this section, or resulting from the utility operator’s failure to remove, relocate, alter or underground its facilities as required by those subsections, unless such damage arises directly from the City’s negligence or willful misconduct.
F. Plans and Facilities Mapping. Upon request of the City the utility operator shall provide as-constructed plans in a form acceptable to the City showing the location of all its utility facilities in the rights of way after initial construction if such plans materially changed during construction. The utility operator shall provide a utility system plan or Geographic Information System data depicting utility systems located in public rights-of-way upon request of the City, but not more than once per year. (Ord. 2012-04 § 8, 2012.)
12.02.090 Leased Capacity.
A utility operator may lease capacity on or in its systems within the City to others, provided that, upon request, the utility operator provides the City with the name and business address of any lessee. A utility operator is not required to provide such information if disclosure is prohibited by applicable law or a valid agreement between the utility operator and the lessee. (Ord. 2012-04 § 9, 2012.)
A. Every utility operator shall install and maintain all facilities in a manner that complies with applicable federal, state and local laws, rules, regulations and policies. The utility operator shall, at its own expense, repair and maintain facilities from time to time as may be necessary to accomplish this purpose.
B. If, after written notice from the City of the need for repair or maintenance, a utility operator fails to repair and maintain facilities as requested by the City and by the date reasonably established by the City, the City may perform such repair or maintenance using qualified personnel or contractors at the utility operator’s sole expense. Upon receipt of a detailed invoice from the City, the utility operator shall reimburse the City for the costs the City incurred within thirty days. (Ord. 2012-04 § 10, 2012.)
If the City vacates any right of way, or portion thereof, that a utility operator uses, the utility operator shall, at its own expense, remove its facilities from the right of way unless the City reserves a public utility easement, which the City shall make a reasonable effort to do provided that there is no expense to the City, or the utility operator obtains an easement for its facilities. If the utility operator fails to remove its facilities within thirty days after a right of way is vacated, or as otherwise directed or agreed to in writing by the City, the City may remove the facilities at the utility operator’s sole expense. Upon receipt of an invoice from the City, the utility operator shall reimburse the City for the costs the City incurred within thirty days. (Ord. 2012-04 § 11, 2012.)
12.02.120 Privilege Tax.
A. Every person that uses utility facilities in the City to provide utility service, whether or not the person owns the utility facilities used to provide the utility services, shall pay the privilege tax for every utility service provided using the rights of way in the amount determined by resolution of the City Council.
B. Privilege tax payments required by this section shall be reduced by any franchise fee payments received by the City, but in no case will be less than zero dollars.
C. Unless otherwise agreed to in writing by the City, the tax set forth in subsection A of this section shall be paid quarterly, in arrears, for each quarter during the term of the license within forty-five days after the end of each calendar quarter, and shall be accompanied by an accounting of gross revenues, if applicable, and a calculation of the amount payable. The utility shall pay interest at the rate of nine percent per year for any payment made after the due date.
D. The calculation of the privilege tax required by this section shall be subject to all applicable limitations imposed by federal or state law.
E. The City reserves the right to enact other fees and taxes applicable to the utility operators subject to this Chapter. Unless expressly permitted by the City in enacting such fee or tax, or required by applicable state or federal law, no utility operator may deduct, offset or otherwise reduce or avoid the obligation to pay any lawfully enacted fees or taxes based on the payment of the privilege tax or any other fees required by this Chapter. (Ord. 2012-04 § 12, 2012.)
A. Within thirty days of a written request from the City, or as otherwise agreed to in writing by the City:
1. Every provider of utility service shall furnish the City with information sufficient 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, privilege tax or franchise fee.
2. Every utility operator shall make available for inspection by the City at reasonable times and intervals all maps, records, books, diagrams, plans and other documents, maintained by the utility operator with respect to its facilities within the rights of way or public utility easements. Access shall be provided within the Portland metropolitan area unless prior arrangement for access elsewhere has been made with the City.
B. If the City’s audit of the books, records and other documents or information of the utility operator or utility service provider demonstrate that the utility operator or provider has underpaid the privilege tax or franchise fee by three percent or more in any one year, the utility operator shall reimburse the City for the cost of the audit, in addition to any interest owed pursuant to subsection 12.02.130.C of this Chapter or as specified in a franchise.
C. Any underpayment, including any interest or audit cost reimbursement, shall be paid within thirty days of the City’s notice to the utility service provider of such underpayment. (Ord. 2012-04 § 13, 2012.)
12.02.140 Insurance and Indemnification.
1. All utility operators shall maintain in full force and effect the following liability insurance policies that protect the utility operator and the City, as well as the City’s officers, agents, and employees:
a. Comprehensive general liability insurance with limits not less than:
i. Three million dollars ($3,000,000.00) for bodily injury or death to each person;
ii. Three million dollars ($3,000,000.00) for property damage resulting from any one accident; and
iii. 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 one million dollars ($1,000,000.00) for each person and three million dollars ($3,000,000.00) for each accident.
c. Worker’s compensation within statutory limits and employer’s liability with limits of not less than one million dollars ($1,000,000.00).
d. Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than three million dollars ($3,000,000.00).
2. The limits of the insurance shall be subject to statutory changes as to maximum limits of liability imposed on municipalities of the state of Oregon. The insurance shall be without prejudice to coverage otherwise existing and shall name, or the certificate of insurance shall name, as additional insureds the City and its officers, agents, and employees. The coverage must apply as to claims between insureds on the policy. The policy shall provide that the insurance shall not be canceled or materially altered without thirty days prior written notice first being given to the City. If the insurance is canceled or materially altered, the utility operator shall obtain a replacement policy that complies with the terms of this section and provide the City with a replacement certificate of insurance. The utility operator shall maintain continuous uninterrupted coverage, in the terms and amounts required. The utility operator may self-insure, or keep in force a self-insured retention plus insurance, for any or all of the above coverage.
3. The utility operator shall maintain on file with the City a certificate of insurance, or proof of self-insurance acceptable to the City, certifying the coverage required above.
B. Financial Assurance. Unless otherwise agreed to in writing by the City, before a franchise granted or license issued pursuant to this Chapter is effective, and as necessary thereafter, the utility operator shall provide a performance bond or other financial security, in a form acceptable to the City, as security for the full and complete performance of the franchise or license, if applicable, and compliance with the terms of this Chapter, including any costs, expenses, damages or loss the City pays or incurs because of any failure attributable to the utility operator to comply with the codes, ordinances, rules, regulations or permits of the City. This obligation is in addition to the performance surety required by subsection 12.02.080.C of this Chapter.
1. Each utility operator shall defend, indemnify and hold the City and its officers, employees, agents and representatives harmless 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, unsafe or wrongful acts, omissions, failure to act, or other misconduct of the utility operator or its affiliates, officers, employees, agents, contractors, subcontractors, or lessees in the construction, operation, maintenance, repair, or removal of its facilities, and in providing or offering utility services over the facilities, whether such acts or omissions are authorized, allowed, or prohibited by this Chapter or by a franchise agreement. The acceptance of a license under section 12.02.070 of this Chapter shall constitute such an agreement by the applicant whether the same is expressed or not. Upon notification of any such claim the City shall notify the utility operator and provide the utility operator with an opportunity to provide defense regarding any such claim.
2. Every utility 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 utility operator’s failure to remove or relocate any of its facilities in the rights of way or public utility easements in a timely manner, unless the utility operator’s failure arises directly from the City’s negligence or willful misconduct. The City shall attempt to mitigate the damages for which the utility operator could be responsible under this subsection by attempting to limit its liability in public contracts for delay damages in the event that the delay is caused by a force majeure event that prevents a utility operator from removing or relocating its facilities in accordance with the schedule provided by the City. (Ord. 2012-04 § 14, 2012.)
Every utility operator shall comply with all federal and state laws and regulations, including regulations of any administrative agency thereof, as well as all applicable ordinances, resolutions, rules and regulations of the City, heretofore or hereafter adopted or established during the entire term of any license granted under this Chapter. (Ord. 2012-04 § 15, 2012.)
12.02.160 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 “confidential information”), the City shall take reasonable steps to protect the confidential or proprietary nature of the confidential information, to the extent permitted by Oregon Public Records Laws, provided that all documents are clearly marked as confidential by the person at the time of disclosure to the City. The City will provide, prior to the release of any such confidential information, written notice to the person asserting confidentiality and allow an opportunity for the person to provide a written response to the request, provided that such response is given to the City within the time the City is required by law to respond to the request. The person asserting confidentiality shall bear the burden to show that part or all of the requested confidential information is exempt from disclosure. The City shall not be required to incur any costs to protect such document, other than the City’s routine internal procedures for complying with the Oregon Public Records Law and the notice requirement in the preceding sentence. (Ord. 2012-04 § 16, 2012.)
12.02.170 Violation - Penalty
A. Any violation of the provisions of this Chapter or the license shall be a civil infraction that may be subject to a penalty of not more than Five Hundred Dollars for each offense. In determining the penalty, the following factors shall be considered:
a. The egregiousness of the violation;
b. The harm that resulted;
c. Whether the violation was intentional;
d. The utility operator’s history of compliance with this Chapter or the license; and/or
e. The utility operator’s cooperation in discovering, admitting and/or curing the violation.
A separate and distinct offense shall be deemed committed each day on which a violation occurs or continues.
B. Nothing in this Chapter shall be construed as limiting any judicial or other remedies the City may have at law or in equity, for enforcement of this Chapter. (Ord. 2012-04 § 17, 2012.)
12.02.180 Severability and Preemption.
A. 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.
B. If any article, section, subsection, sentence, clause, phrase, term, provision, condition 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, clause, phrase, term, provision, condition, covenant and 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. (Ord. 2012-04 § 18, 2012.)
12.02.190 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 utility operators by the City. (Ord. 2012-04 § 19, 2012.)
12.04.010 Initiation of proceedings.
Whenever the city council shall deem it necessary, upon its own motion or upon the petition of the owners of at least sixty percent of the property to benefit specifically from the improvement, to construct, alter, repair, improve, widen or extend any street, alley, sidewalk, parking, curbing or any part thereof, or to construct, alter or install street lights, or to construct, improve or repair any sanitary or storm sewer or water line or any part thereof, or to acquire, establish, construct or reconstruct any off-street motor vehicle parking facility, or to construct, reconstruct, repair or equip a park, playground or other recreational facility, or to construct, alter or install broadband infrastructure, including but not limited to fiber optic facilities, for which it is anticipated that special assessments will be levied, it shall by motion direct the city engineer or engineer retained by the city to make an investigation of such project and to submit a written report with the city administration. Such report shall contain the following:
A. A map or plat showing the general nature, location and extent of the proposed improvement and the land to be assessed for the payment of any part of the cost thereof;
B. Preliminary plans, specifications and estimates of the work to be done; provided, however, that where the proposed project is to be carried out in cooperation with any other governmental agency, the engineer may adopt the plans, specifications and estimates of such agency;
C. An estimate of the probable cost of the improvement, including any legal, administrative and engineering costs attributable thereto;
D. An estimate of the unit cost of the improvement to the specially benefited properties;
E. A recommendation as to the method of assessment to be used to arrive at a fair apportionment of the whole or any portion of the cost of the improvement to the properties specially benefited;
F. The description and assessed value of each lot, parcel of land, or portion thereof, to be specially benefited by the improvement, with the names of the owners or reputed owners thereof and, when readily available, the names of the contract purchasers thereof;
A statement of outstanding assessments against property to be assessed.
(Ord. 7-74 § 1, 1974.)
12.04.020 Action on engineer's report.
After the report from the engineer has been filed with the city manager, the city council may thereafter by motion approve the report, modify the report and approve it as modified, require the engineer to supply additional or different information for such improvement, or it may abandon the improvement. (Ord. 14-74 § 3 (part), 1974; Ord. 7-74 § 2, 1974.)
12.04.030 Resolution and notice of hearing.
After the city council has approved the engineer's report as submitted or modified, the council shall, by resolution, declare its intention to make such improvements, provide the manner and method of carrying out the improvement and shall direct the city recorder to give notice of such improvements by posting at the city hall and at two places within the benefited area, and by mailing copies of such notice to the owners to be assessed for the costs of such improvement. Said notice shall contain the following:
A. A statement describing the proposed improvement, the area to be served, and the intention of the council to make such an improvement;
B. That the engineer's report is on file at city hall and may be examined during normal business hours, or other specified times;
C. That the council will hold a public hearing on the proposed improvement on a specified date, which shall not be earlier than ten days following the mailing of notices, at which time objections and remonstrances to such improvement will be heard by the council;
The estimated total cost of the project or the cost of that portion of the project to be financed by assessments to benefiting properties.
(Ord. 7-74 § 3, 1974.)
12.04.040 Hearing and action on improvements.
If, prior to or during the hearing regarding the formation of local improvement district for any reason other than to correct danger to public health, written objections are received from owners, representing two-thirds of the area to be assessed, the improvement proceedings shall be abandoned and shall not be subject to a further hearing for at least three months. If the city council finds, however, that a danger to public health exists which will be corrected by the creation of a local improvement district, no right of remonstrance shall exist from owners within the area to be assessed. A "danger to public health" is defined to mean a condition which is conducive to the propagation of communicable or contagious disease producing organisms and which presents a reasonably clear possibility that the public generally is being exposed to disease caused physical suffering or illness, including a condition such as:
A. Impure or inadequate domestic water;
B. Inadequate installation for the disposal and treatment of sewage, garbage or other contaminated or putrefying waste;
C. Inadequate improvements for drainage of surface water and other fluid substances.
The council, after receiving objections from owners representing not more than two-thirds of the area to be assessed where a danger to public health is not found, may adopt or amend the engineer's report and adopt the same by resolution. If the council finds that a danger to public health exists, it may adopt or amend the engineer's report and adopt the same by resolution. Having by resolution created a local improvement district, the council shall direct the city engineer or an engineer retained by the city to prepare detailed plans, specifications and cost estimates for the proposed improvement. (Ord. 8-86 § 1, 1986: Ord. 7-74 § 4, 1974.)
12.04.050 Manner of doing work.
The council may provide in the improvement authorizing resolution that the construction work may be done in whole, or in part, by the city, by a contract, by any other governmental agency, or by any combination thereof. (Ord. 7-74 § 5, 1974.)
12.04.060 Call for bids.
The city council, in its discretion, may direct the city manager to call for bids for construction of all, or any part of the improvement project on the basis of the council-approved engineer's report at any time after passage of said improvement authorizing resolution and the contracts shall be let to the lowest responsible bidder, provided that the city council shall have the right to reject all bids when they are deemed unreasonable or unsatisfactory. Said contracts shall provide for the bonding of all contractors for the faithful performance of any contract let under its authority, and the provisions thereof in case of default shall be enforced by action in the name of the city.
If the council finds, upon opening bids for the work of such improvement, that the lowest responsible bid is fifteen percent in excess of the engineer's estimate, it shall provide for holding a hearing of objections to proceeding with the improvement on the basis of such bid, and it shall direct the city recorder to publish one notice thereof in a newspaper of general circulation in the city. Notice shall state the purpose, date, time and place of said hearing. After the hearing, the council shall determine whether said bid shall be accepted or rejected. (Ord. 14-74 § 3 (part), 1974; Ord. 7-74 § 6, 1974.)
12.04.070 Method of assessment and alternative methods of financing.
A. The council, in adopting a method of assessing the cost of the improvement, may:
1. Use any just and reasonable method to determine the extent of an improvement district consistent with the benefit derived;
2. Use any just and reasonable method of apportioning the sum to be assessed among the benefited properties;
3. Authorize payment by the city of all or part of the cost of an improvement when in the opinion of the council the topographical or physical conditions, unusual or excessive public travel or other character of the work involved warrants only partial payment or no payment of the cost by the benefited property.
Nothing contained in this section shall preclude the council from using other means of financing improvements, including federal and state grant-in-aid, sewer and/or water charges or fees, revenue bonds, general obligation bonds or other legal means of finance. If other means of financing are used, the council may levy special assessments according to benefits derived to cover any remaining part of the cost.
(Ord. 13-94 § 1 (part), 1994: Ord. 15-75 § 1, 1975: Ord. 7-74 §§ 7, 9, 1974.)
12.04.080 Final assessment ordinance.
A. If the council caused the public improvement to be made and the actual cost has been determined, upon completion of the project the council shall determine whether the benefited property shall bear all or a portion of the cost. The actual cost of the project shall include interim financing costs. The recorder or other person designated by the council shall prepare the proposed final assessment for each lot within the assessment district and file the assessments in the recorder's office.
B. Notice of the proposed final assessment shall be published and mailed or personally delivered to the owner of each lot proposed to be assessed at the address shown on the Clackamas County tax assessor's rolls. The notice shall state the amount of the proposed final assessment on the property and fix a date by which time any objections shall be filed with the recorder and the date and time set for the public hearing at which the council will hear objections. An objection shall state the grounds for the objection.
At the hearing the council shall consider the objections and may adopt, correct, modify or revise the proposed final assessment against each lot in the district according to special and peculiar benefits accruing to it from the improvement.
(Ord. 13-94 § 1 (part), 1994: Ord. 15-75 § 2, 1975: Ord. 7-74 § 8, 1974.)
12.04.090 Notice of assessment.
A. Within ten days after the ordinance levying final assessments has been passed, the recorder shall send a notice of final assessment to the owner of the assessed property by registered or certified mail and publish notice of the assessment twice in a newspaper of general circulation in the city. The first publication of notice shall be not later than twenty days after the date of assessment ordinance.
The notice of final assessment shall include the name of the property owner, a description of the assessed property, the amount of the final assessment and the date of the assessment ordinance and shall state that interest will begin to run on the final assessment and the property will be subject to foreclosure unless the owner either makes application to pay the final assessment in installments within ten days after the date of the first publication of notice or pays the final assessment in full within thirty days after the date of the assessment ordinance.
(Ord. 13-94 § 1 (part), 1994.)
12.04.100 Lien record and foreclosure proceedings.
A. After passage of the final assessment ordinance, the recorder shall enter into the docket of liens a statement of the amount assessed on each lot, parcel of land or portion of land, description of the improvement, names of property owners and the date of the final assessment ordinance. Upon entry in the lien docket, the amounts shall become liens and charges on the lots, parcels of land or portions of land that have been assessed for improvement.
B. Assessment liens of the city shall be superior and prior to all other liens or encumbrances on property insofar as state law permits.
The city may enter a bid on property being offered at a foreclosure sale. The city bid shall be prior to all bids except those made by persons who would be entitled under state law to redeem the property.
(Ord. 13-94 § 1 (part), 1994: Ord. 20-80 § 1, 1980: Ord. 6-76 § 1, 1976: Ord. 7-74 § 11, 1974.)
12.04.110 Errors in assessment calculations.
Claimed errors in the calculation of assessments shall be called to the attention of the recorder, who shall determine whether there has been an error. If there has been an error, the recorder shall recommend to the council an amendment to the assessment ordinance to correct the error. On enactment of the amendment, the recorder shall make the necessary correction in the docket of liens and send a correct notice of assessment by registered or certified mail. (Ord. 13-94 § 1 (part), 1994: Ord. 7-74 § 12, 1974.)
12.04.120 Supplemental assessments.
If a supplemental assessment is required pursuant to Section 12.04.170 of this chapter, the council may declare the insufficiency by motion and prepare a proposed supplemental assessment. The council shall set a time for hearing objections to the supplemental assessment and direct the city recorder to publish one notice in a newspaper of general circulation in the city. After the hearing, the council shall make a just and equitable supplemental assessment by ordinance, which shall be entered in the docket of liens as provided by Section 12.04.100. Notice of the supplemental assessment shall be published and mailed, and collection of the assessment shall be made in accordance with Sections 12.04.090 and 12.04.100. (Ord. 13-94 § 1 (part), 1994.)
If a rebate is required pursuant to Section 12.04.170 of this chapter, the council shall ascertain and declare the excess by ordinance. When declared, the excess amounts must be entered on the lien docket as a credit on the appropriate assessment. If an assessment has been paid, the person who paid it or that person's legal representative shall be entitled to payment of the rebate credit. (Ord. 13-94 § 1 (part), 1994: Ord. 7-74 § 14, 1974.)
A. Subject to curative provisions of Section 12.04.160 and rights of the city to reassess as provided in Section 12.04.170, proceedings for writs of review and equitable relief may be filed not earlier than thirty days nor later than sixty days after filing written objection as provided by Section 12.04.080.
B. A property owner who has filed a written objection with the recorder before the public hearing may have the right to apply for a writ of review based on the council's exercising its functions erroneously or arbitrarily or exceeding its jurisdiction to the injury of a substantial right of the owner, if the facts supporting the claim have been specifically set forth in the written objections.
C. A property owner who has filed a written objection with the recorder before the public hearing may begin an action for equitable relief based on a total lack of jurisdiction on the part of the city. If notice of the improvement was not sent to the owner and if the owner did not have actual knowledge of the proposed improvement before the hearing, the owner may file a written objection alleging lack of jurisdiction with the recorder within thirty days after receiving notice or knowledge of the improvement.
A provision of this section shall not be construed to lengthen the period of redemption or to affect the running of a statute of limitation. A proceeding on a writ of review or for equitable relief shall be abated if proceedings are begun and diligently pursued by the council to remedy or cure alleged error or defects.
(Ord. 13-94 § 1 (part), 1994: Ord. 7-74 § 10, 1974.)
12.04.150 Abandonment of proceedings.
The council may abandon proceedings for improvements made under this chapter at any time before final completion of the improvements. If liens have been placed on property under this procedure, they shall be canceled, and payments made on assessments shall be refunded to the person who paid them or to that person's legal representatives. (Ord. 13-94 § 1 (part), 1994: Ord. 7-74 § 15, 1974.)
12.04.160 Curative provisions.
A. An improvement assessment shall not be rendered invalid by reason of:
1.Failure of the engineer's report to contain all information required by Section 12.04.010;
2. Failure to have all information required in the improvement resolution, assessment ordinance, lien docket or notices required to be published and mailed;
3. Failure to list the name of or mail notice to an owner of property as required by this chapter;
4. Any other error, mistake, delay, omission, irregularity or other act, jurisdictional or otherwise, in the proceedings or steps specified, unless it appears that the assessment is unfair or unjust in its effect on the person complaining.
The council shall have authority to remedy and correct all matters by suitable action and proceedings.
(Ord. 13-94 § 1 (part), 1994: Ord. 7-74 § 16, 1974.)
When an assessment, supplemental assessment or reassessment for an improvement made by the city has been set aside, annulled, declared void, or its enforcement restrained by a court of this state or by a federal court having jurisdiction, or when the council doubts the validity of the assessment, supplemental assessment, rebate or any part of it, the council may make a reassessment in the manner provided by state law. (Ord. 13-94 § 1 (part), 1994: Ord. 7-74 § 13, 1974.)
12.04.180 Bancroft Act.
The provisions of Oregon Revised Statutes Sections 223.205 through 223.300 commonly known as the "Bancroft Bonding Act," together with amendments or future amendments thereof, are adopted and made a part hereof by reference. (Ord. 13-94 § 2, 1994; Ord. 7-74 § 17, 1974.)
12.04.190 Segregation of assessments-Fees.
Whenever an application has been made under the provisions of the Bancroft Bonding Act as herein adopted, and the application has been accepted and the payment of the assessment has been in fact financed by such procedure, the lien of such assessment may be segregated upon the following terms and conditions:
A. The property for which the segregation is to be made shall have been assessed as a unit and entered accordingly in the docket of liens;
B. There shall be no delinquent installments of principal or interest on the assessment of the entire parcel;
C. Written application shall be made to the city in such form as may be required, and such applications shall be accompanied by the fees established as hereafter provided. The written application must be submitted by the owner, mortgagee, or lienholder of a parcel of real property that was formed from the partition or other division of the larger tract of real property against which the assessment was originally levied. No apportionment shall be granted unless the applicant filed a true copy of the deed, mortgage, or instrument creating the new parcel or parcels;
D. Apportionment of the assessment shall be made by the city recorder and approved by resolution of the city council. In accomplishing apportionment, the installments remaining unpaid shall be prorated among the smaller parcels so that each parcel shall be charged with the percentage of the remaining installment payments equal to the percentage of the unpaid assessment charged to the parcel upon apportionment;
In order to help defray the costs of investigation, preparing legal descriptions, calculating an equitable division of the assessment and making lien docket entries, the city council may by resolution establish and from time to time amend a schedule of fees to be paid with any application filed under this section. Such fees shall not be refundable if the application is disapproved or the applicant withdraws his application.
(Ord. 13-94 § 4, 1994; Ord. 9-84 § 1, 1984.)
12.08.010 Application for permit.
No sidewalk, driveway or curb shall be laid down or constructed without first acquiring a permit from the city building department. The applicant must present a diagram showing the description of the contiguous property and the location of the intended construction in relation thereto, description of adjoining properties, name and address of the contractor, time of beginning and estimated time of completion of such construction and such other information as may be required by the city. (Ord. 8-73 § 1, 1973.)
12.08.020 Grade to be established.
No person may construct a sidewalk, driveway or curb until a definite grade therefor has been established. No permit for such construction may be issued until a grade has been so established. (Ord. 8-73 § 2, 1973.)
12.08.030 Grade level survey.
Upon application for a permit, the building official shall inform the city engineer, who shall set the grade or approve the grade as set by another registered professional engineer or registered professional land surveyor. Upon receipt of the approval or upon the completion of the grade survey, the building official may grant the permit. (Ord. 8-73 § 3, 1973.)
12.08.040 Cost of survey or approval.
One-half of the cost of a survey or approval of a survey shall be borne by the applicant, and the other half shall be borne by the city. (Ord. 8-73 § 4, 1973.)
12.08.050 Sidewalk to be constructed in different location.
If, at the time of application, the applicant indicates to the building official that he desires to construct a sidewalk in a different location in the sidewalk area than is provided for in this chapter, the building official shall notify the applicant that the matter may be presented to the planning commission. If the applicant desires to have the matter presented to the planning commission, he shall file a request for a variance and the administrative office shall schedule a public hearing before the planning commission. The administrative office shall notify the applicant of the time and place of hearing before the planning commission. (Ord. 8-73 § 5, 1973.)
12.08.060 Planning commission consideration of a variance.
If at the hearing the planning commission finds that, by reason of existing construction of buildings or sidewalks, it would be impractical or undesirable from a planning viewpoint to require sidewalk to be placed as provided in Sections 12.08.080, 12.08.090 and 12.08.100, the planning commission shall determine that a permit be granted for a variance. If the planning commission finds that such conditions do not exist, the request for a variance shall be denied. (Ord. 8-73 § 6, 1973.)
12.08.070 Expense of construction.
All sidewalk, driveway and curb construction pursuant to a permit required by this chapter shall be made and done at the sole expense of the owner of the property contiguous to such construction, and such construction shall include the cost of laying drain pipe in connection with the driveway, and also the reasonable cost and expense of supervision and inspection by the city. The city shall be held harmless from all such expenses or any part thereof. Thereafter, such owner shall keep said construction in good condition and repair. The building official shall have general supervision over sidewalk construction. (Ord. 8-73 § 7, 1973.)
12.08.080 Sidewalk areas.
Sidewalk areas within the city shall be and are defined and established as being ten feet in width extending from the property line to the outer edge of the curb. Minimum width of paving in commercial zones shall be six feet, normal paving width in residential zones is five feet. (Ord. 8-73 § 8, 1973.)
12.08.090 Residential sidewalks.
The sidewalk areas in residential districts of the city are designated and established for the use of the public in the following manner:
A. Except as provided in subsection B of this section, the first five feet in width outward from the street line or property line is reserved for the use of the city and other utilities in laying water, sewer, electric, gas and telephone lines, or such other uses as the city may determine from time to time. Subject to such use, the area shall be available for pedestrian travel, beautification of surroundings, or such other use by the owner or occupant of the abutting property as may be authorized by the city. The next five feet in width of the sidewalk area is reserved as the portion over which shall be constructed and laid the main walkway for pedestrian travel.
In any block where an existing sidewalk does not conform to the requirements of subsection A of this section, any additional sidewalk constructed along an extension of the line of such nonconforming sidewalk in the same block shall be aligned with the existing sidewalk.
(Ord. 8-73 § 9, 1973.)
12.08.100 Commercial zones.
The entire width of the sidewalk area is designated as the area upon which shall be constructed the main walkway for pedestrian travel, subject, however, to such other uses, such as planting strips, as may be determined and authorized by the city from time to time, with the outer six inches being the curb. (Ord. 8-73 § 10, 1973.)
12.08.110 General specifications.
Sidewalks and curbs shall be composed of a concrete mixture of not less than five and one-half sacks per yard and shall meet a test of three thousand pounds per square inch after a twenty-eight day cure. Foundations upon which concrete shall be laid shall be of a substantial construction, of sufficient depth, and of suitable material to properly carry the concrete overload intended without sinking or spreading, as determined by the building official or the city engineer. Expansion joints shall be provided in curbs and sidewalks at each end of each radius, on each side of each driveway, and otherwise shall be spanned so as to be no more than fifteen feet apart. (Ord. 8-73 § 11, 1973.)
12.08.120 Method of sidewalk and driveway construction.
Sidewalks shall be concrete with a minimum thickness or depth of four inches and shall present an even, smooth surface and shall be laid with the necessary joints as to prevent bulging or cracking by contraction or expansion. Driveways, as heretofore referred to, shall be a minimum thickness of six inches and shall slope from a grade five inches below the top grade of the curb, which point shall be one inch above the gutter line and uniformly back to the property line which shall be a slope of seven and one-half inches in a width of ten feet. The lateral driveway lines shall slope upward to gradually merge with the plane of the sidewalk and at all such places or merger there shall be included an expansion joint. Sidewalks shall have a gradual slope of one-fourth inch to the foot of width with the higher edge thereof being the edge toward the property line and the lower edge being to the plane of the curb, except where by reason of a variance a stepped curb is to be built. (Ord. 8-73 § 12, 1973.)
12.08.130 Method of curb construction.
Curbs shall be constructed with the top plane of the curb to be on the same surface level as the constructed sidewalk, except where by reason of a variance a stepped curb is to be built. Curbs shall be six inches wide at the top, nine inches wide at the bottom, and not less than sixteen inches deep. Curbs at driveways and alley crossings shall be cut away slopingly for a distance of three feet. Curbs shall be cut away to a depth of five inches from the top line of the curb and the gutter line shall be six inches from the top of the curb. Curbs at street intersection corners shall be rounded so as to curve on the basis of a ten-foot minimum radius. (Ord. 8-73 § 13, 1973.)
12.08.140 Driveways and entrances to alleyways.
Driveways and entrances to alleyways for vehicular travel over sidewalk areas may be constructed and laid down for proper ingress and egress to and from alleys and property contiguous to the sidewalk area. Such driveways shall slope from the grade of the sidewalk down gradually to the street gutter grade at the outer line of the street curb. The lateral driveway lines shall slope upward gradually to merge with the surface plane of the contiguous sidewalks and curbs. (Ord. 8-73 § 14, 1973.)
12.08.150 City removal of sidewalk.
In addition to any other penalty that may be imposed, sidewalk construction performed in violation of this chapter may be removed by order of the city council. The adjacent property owner and any contractor doing the construction shall be jointly and severally liable for the cost of such removal. (Ord. 8-73 § 15, 1973.)
Any person or persons violating any of the provisions of this chapter shall upon conviction thereof be punished by a fine not to exceed one hundred dollars, or imprisonment of not to exceed ten days, or both. (Ord. 8-73 § 16, 1973.)
Section 12.10.010 Responsibility of Property Owner
It is the responsibility of all property owners in the city to keep the sidewalk, curb, driveway approach, landscaping, street trees or other improvements located between the curb and property line in the public right of way City streets, County roads and State highways thereof adjacent to or abutting on their respective real property in a good state of repair so as to eliminate the hazard of injuries to pedestrians, cyclists and motorists using the same.
Section 12.10.020 Extent of Maintenance Responsibility
Real property owners in the city shall maintain and keep in repair all sidewalks, curbs, driveways, handrails, sidewalk doors, street trees, landscaping and sidewalk lights located between the curb and property line in the public right-of-way of any City street, County road or State highway in front of and as are adjacent to or abut on such owner's or owners' real property. Public street lighting and franchise utilities located in the public right-of-way shall be maintained by the respective franchise utility.
Section 12.10.030 Report of Defect or Hazard
Whenever any such sidewalk, curb or other installation as specified in Section 12.10.020 becomes defective or presents a hazard to adjacent pedestrians, cyclists or motorists, the City Manager or their designee shall notify the owner of the adjacent real property of the defect and also the kind and nature of repair or remedy required, as is necessary for the safety of pedestrians, cyclists, motorists and others using the public right-of-way.
Section 12.10.040 Notice Requirements
The City Manager or their designee shall notify such owner or owners in writing through regular mail and direct the owner or owners to make and complete the required repair or remedy required in the manner prescribed in such notice within thirty days of the mailing of such notice. The notice may be mailed to the last known address of the owner or owners as may be listed in the Clackamas County Assessor records, but if no such address or record exists, the notice may be mailed to the owner or owners care of General Delivery at Sandy, Oregon, and such mailing shall be considered sufficient notice.
Section 12.10.050 Repair Specifications
The repairs or remedies performed by or on behalf of the owner or owners shall be in accordance with the City’s adopted standards and specifications for such work.
Section 12.10.060 City Work Upon Failure to Remedy - Costs
In the event such owner or owners fail or refuse to make and complete such repairs or remedies as directed by the City within said thirty-day period after being notified, then the City or authorized agents thereof may perform such repair or remedies as are required. After the repair or remedies made by or on behalf of the City are complete, the cost for same shall become a lien against the subject real property, and such liens shall take first position and have priority over all other liens against such property.
Section 12.10.070 Repair Lien Docket
The City Manager or their designee shall prepare and maintain a lien docket in which shall be entered all such liens incurred under this chapter, and such lien shall bear interest at the rate set by the City’s Master Fee Resolution from the date of entry into the lien docket.
Section 12.10.080 Lien-Foreclosure.
At any time after such lien has been so docketed, a suit to foreclose same may be brought in the Circuit Court of the state of Oregon for Clackamas County, in the name of the city, and after the necessary procedure in court, said liens may be foreclosed and the lands against which said liens were docketed may be sold.
The foreclosure, including sale, shall be analogous to those in a suit for the foreclosure of real property as provided by the laws of the state of Oregon. (Ord. 21-79 § 8, 1979.)
12.12.005 Definitions. For the purposes of this chapter:
“Person” means any person, firm, corporation, but excluding those acting under direct authority of the city council.
“Public parks” means all property owned or controlled by the city, whether within or without the city limits, and operated for the use of the public for park purposes. (Ordinance 2008-08, 2008)
12.12.010 Rules adopted.
The following rules and regulations governing the use of the public parks in the city are adopted:
Rule 1. No person shall dig up, cut, break, remove or deface any building, structure, sign, bush or plant belonging to or growing within a public park in the city without written permission from the city.
Rule 2. No person shall have in his possession or discharge any destructive weapon, firearm, firecracker, torpedo or fireworks, or throw or place upon the ground any lighted match, cigar or any burning substance in any public park in the city.
Rule 3. No person shall, within the limits of any public park within the city, use or utter any profane, threatening, abusive or indecent language.
Rule 4. All public parks belonging to the city shall be open to the public at dawn and shall be closed and visitors excluded therefrom after dusk each day. Special exceptions can be made by the city.
Rule 5. Use of motorized vehicles (exclusive of wheelchairs) is prohibited in city parks. An exception for special events or the purpose of loading and unloading may be made through special permit by the city.
Rule 6. Horseback riding is prohibited in city parks unless otherwise posted.
Rule 7. Dogs in city parks must be on leash unless otherwise posted.
Rule 8. All persons using the park shall at all times obey all lawful orders of any police officer or lifeguard who may be stationed therein.
Rule 9. The drinking or possession of intoxicating beverages, other than beer and wine, is prohibited within any area of the city parks unless otherwise posted. There shall be no selling of alcoholic beverages within the parks.
Rule 10. All refuse, papers and rubbish shall be placed in refuse/recycling containers provided for that purpose, and everyone who uses park facilities shall keep them and the premises clean, so as to leave them in orderly condition for the next user.
Rule 11. Use of bicycles, skates, skateboards and other nonmotorized, wheeled vehicles is allowed in designated areas only. Use is not permitted on any brickwork, ornamental surface, picnic table, tennis court, basketball court, fountain area, wading pool, planter, or sculpture located on public grounds.
Rule 12. Written permission by the city council is required for organized, promoted special events in city parks. Approval may include modifications to park rules. (Ord. 98-17, 1998: Ord. 9-77 § 1, 1977.)
Rule 13. No person shall deposit into a public water feature bubbling agents or dyes, or any objects or substances that would harm or hinder its function or endanger public safety. Materials used in the course of maintenance or operations by city staff or contractors are excepted. Ord. 2006-11.
Rule 14. No person shall hunt, pursue, trap, kill or disturb any animal or bird, or its habitat.
Rule 15. Any group desiring to reserve any portion of a public park for picnics or social functions shall make written application therefore to the city manager at least one week prior to the event. An application fee may be required for certain parks and/or areas.
Rule 16. No person shall engage in, sponsor or conduct: fighting, boxing, wrestling or similar forms of mutual combat in a public park. However, boxing and wrestling matches and exhibitions that are regulated and licensed by the Oregon State Boxing and Wrestling Commission; or boxing and wrestling conducted by organizations identified in ORS 463.210 as exempt from the licensing and bonding provisions or ORS Chapter 463, may be held in public parks uon the approval o the city manager. The manager may impose such conditions upon such events, and require such financial security in connection therewith, so as to assure that such events are conducted in a safe manner and consistent with the use of parks by the public. (Ordinance 2008-08 §1, 2008)
12.12.020 Trespass and exclusion from parks.
(A) In addition to other measures provided for violation of this code, or any of the laws of the state, any peace officer, as definied by ORS 133.005(3), as amended, or code enforcement officer may exclude any perso who violates any provision of this code, any city ordinance, any laws of the state or any rule or regulation duly made and issued by the City Council from any city park for a period of not more than 30 days.
(B) Written notice shall be given to any person excluded from any city park. The notice shall specify the dates and places of exclusion. It shall be signed by the issuing party. Warning of the consequences for failure to comply shall be prominently displayed on the notice.
(C) A person receiving the notice may appeal to the Municipal Judge in accordance with 12.12.025 of this chapter to have the written notice rescinded or the period shortened. The appeal must be filed within 5 days of receipt of the exclusion notice, unless extended by the Municipal Judge for good cause shown.
(D) At any time within the 30 days, a person receiving an exclusion notice may apply in writing to the city manager for a temporary waiver from the effects of the notice. The city manager may grant a waiver if good cause exists. (Ordinance 2008-08 §2, 2008)
(A) Appeal of an exclusion notice shall be to the municipal judge.
(B) Initiation of an appeal of an exclusion notice shall be filed within 5 days from the date of the exclusion notice with the municipal court clerk. The municipal judge may waive this requirement for good cause shown.
(C) The request for an appeal hearing shall be in writing and shall contain either a copy or a full and complete description of the notice of exclusion and a statement of the grounds upon which it is contended that the decision to exclude is invalid, unauthorized or otherwise improper.
(D) Upon receipt of a request for an appeal hearing, the municipal court clerk shall schedule a hearing before the judge within 14 days after receipt of the request. Notice of the hearing time and date shall be given to the person requesting the hearing and to the person issuing the exclusion notice.
(E) At the hearing, the judge may determine the matter without hearing upon the record. The judge may sustain, reverse or modify the exclusion notice appealed from in his or her judgment.
(F) The determination of the municipal judge is a quasi-judicial decision and is not appealable to the city council: appeals from any determination by the municipal judge shall be by writ of review to the Circuit Court of Clackamas County, Oregon as provided in ORS 34.010 through 34.100. (Ordinance 2008-08 §2A, 2008)
Any person who violates any of the provisions of this chapter shall be punished for each offense, upon conviction thereof, by a fine of not more than three hundred dollars, or by exclusion from city parks not to exceed 30 days, or by both such fine and exclusion. (Ordinance 2008-08 §3, 2008)
12.12.040 Criminal Trespass.
A person who knowingly violates an order of exclusion from city parks commits the crime of Criminal Trespass. (Ordinance 2008-08 §4, 2008)
The following are definitions for the purposes of this chapter and for the purposes of any advance financing agreement entered into pursuant to this chapter and for any actions taken as authorized pursuant to this chapter or otherwise:
"Advance finance agreement" means an agreement between a developer and the city, as authorized by the city council, and executed by the city manager, which agreement provides for the installation of and payment for advance financed public improvements and which agreement contains improvement guarantees, provisions for reimbursement by the benefiting property owners who may eventually utilize such improvement, inspection guarantees, and the like, as determined in the best interest of the public by the city council.
"Advance financing" means a developer's or the city's payment for the installation of one or more public improvements installed pursuant to this chapter which benefiting property owners may utilize upon reimbursing a proportional share of the cost of such improvement.
"Advance financing resolution" means a resolution passed by the city council and executed by the city manager designating a public improvement to be an advance finance public improvement and containing provisions for financial reimbursement by benefiting property owners who eventually utilize the improvement and such other provisions as determined in the best interest of the public by the city council.
"Benefiting property" means that real property benefiting from an advance financed public improvement.
"City" means the city of Sandy.
"City council" means the city council of Sandy.
"Developer" means the city, another municipal corporation, an individual, a partnership, a joint venture, a corporation, a subdivider, a partitioner of land or any other entity, without limitation, who will bear, under the terms of this chapter, the expense of construction, purchase, installation or other creation of a public improvement.
"Development" means that real property being developed by the developer and for which property the advance financing resolution is passed.
"Owner" means the fee holder of record of the legal title to the real property in question. Where such real property is being purchased under a recorded land sales contract, then such purchasers shall also be deemed owners.
"Public improvement" means the following:
1. The construction, reconstruction or upgrading of any water, sanitary, sewer or storm sewer system improvements;
2. The grading, graveling, paving or other surfacing of any street, or opening, laying out, widening, extending, altering, changing the grade for construction of any street;
3. The construction or reconstruction of sidewalks.
(Ord. 98-2 § 1 (part), 1998; Ord. 20-93 § 1 (part), 1993.)
12.14.020 Receipt of application.
The city council will receive application for advance financing from developers, which applications shall be submitted to the city manager and shall be accompanied by a fee set by resolution by the city council. The fee will be applied against the cost of administrative analysis of the proposed advance financing project, for the cost of notifying the property owners, and for recording costs and the like. When the city is the developer, the city council shall by motion direct the city manager to submit the application without fee. (Ord. 20-93 § 1 (part), 1993.)
12.14.030 Utility analysis.
Upon receipt of the advance financing application, the city manager shall make an analysis of the advance financing proposal and shall prepare a report to be submitted to the city council for review, discussion and public hearing. Such report shall include a map showing the location and front footage of the development and intervening property. The report shall also include the city's estimate of the total cost of the advance financed public improvement. (Ord. 20-93 § 1 (part), 1993.)
12.14.040 Public hearing.
Within a reasonable time after the city manager has completed his analysis, an informational public hearing shall be held in which all parties and the general public shall be given the opportunity to express their views and ask questions pertaining to the proposed advance financed public improvement. Since advance financed public improvements do not give rise to assessments, the public hearing is for information purposes only, and is not subject to mandatory termination due to remonstrances. The city council has the sole discretion after the public hearing to decide whether or not an advance financing resolution shall be passed. (Ord. 20-93 § 1 (part), 1993.)
Not less than ten nor more than thirty days prior to any public hearing being held pursuant to this chapter, the developer and all benefiting property owners shall be notified of such hearing and the purpose thereof. Such notification shall be accomplished by mail, notice shall be made on the date that the letter of notification is posted. Failure of any owner to be so notified shall not invalidate or otherwise affect any advance financing resolution or the city council's action to approve or not approve the same. (Ord. 98-2 § 1 (part), 1998: Ord. 20-93 § 1 (part), 1993.)
12.14.060 Advance financing resolutions and agreements.
After the public hearing, held pursuant to Section 12.14.040, if the city council desires to proceed with advance financed public improvements, it shall pass an advance financing resolution accordingly. The resolution shall designate the proposed improvement as an advance financed improvement and provide for advance finance reimbursement by benefiting property owners pursuant to this chapter. When the developer is other than the city, the advance financing resolution shall instruct the city manager to enter into an agreement between the developer and the city pertaining to the advance financed improvement, and may, in such agreement, require such guarantee or guarantees as the city deems best to protect the public and benefiting property owners, and may make such other provisions as the city council determines necessary and proper. (Ord. 98-2 § 1 (part), 1998: Ord. 20-93 § 1 (part), 1993.)
12.14.070 Advance finance reimbursement.
A. Advance Financed Reimbursement Imposed. An advance financed reimbursement is imposed on all benefiting property owners at such time as the owners apply for connection to advance financed water, sanitary sewer and storm sewer, improvements or connect to and use advance financed street and sidewalk improvements.
1. Benefiting Property Owners.
a.The benefiting property owner shall pay advance financed reimbursement calculated as follows:
i.The total actual cost of the advance financed public improvement, increased by nine percent annual simple interest, or such other percentage that the city council may, from time to time, set by resolution, multiplied by a percentage of front footage owned by the benefiting property owner of the total front footage of the advance financed public improvement, or by such other methodology as is approved by the city council. Future interest rate changes shall not apply ex post facto to previously executed reimbursement agreements.
b.Advance financing reimbursements for odd shaped lots shall be individually established and consistent with the benefit received by the lot and the reimbursement required of other lots in the area. If inequities are created through the strict implementations of the above formulas, the city council may modify its impact on a case-by-case basis.
Collection. The advance financed reimbursement is immediately due and payable by the benefiting property owners upon their application for connection to an advance financed water, sanitary sewer or storm sewer system or their connection and use of advance financed street and sidewalk improvements. If connection is made without the above-mentioned permits, then the advance financed reimbursement is immediately due and payable upon the earliest date that any such permit was required, or in the case of advance financed and street and sidewalk improvements, when connection and use is commenced. No permit for connection shall be issued until the advance financed reimbursement is paid in full. Whenever the full and correct advance financed reimbursement has not been paid and collected for any reason, the city manager shall report to the city council the amount of the uncollected reimbursement, the description of the real property to which the reimbursement was due and the name or name of the benefiting property owners. The city council, by motion, shall then set a public hearing and shall direct the city manager to give notice of that hearing to each of those benefiting property owners, together with a copy of the city manager's report concerning the unpaid reimbursement, either in person or by certified mail. Upon public hearing, the city council may accept, reject or modify the city manager's report; and if it finds that any reimbursement is unpaid and uncollected, the city council, by motion, may direct the city manager to docket the unpaid and uncollected reimbursement in the city record of liens; and upon completion of the docketing, the city shall have a lien against the described land for reimbursements, interest and the city's actual cost of serving notice upon the benefiting property owners. The lien shall be enforced in the manner provided by Oregon Revised Statutes Chapter 223.
(Ord. 98-2 § 1 (part), 1998: Ord. 20-93 § 1 (part), 1993.)
12.14.080 Disposition of advance financed reimbursements.
Developers who have an advance financed agreement with the city shall receive the advance financed reimbursements collected by the city pertaining to their advance financed public improvements. Such reimbursements shall be delivered to the developer for a period of twenty years from and after the date the applicable advance financing agreement has been executed. Such payments will be made by the city within ninety days of receipt of the advance financed reimbursements. The city shall incur no liability for its failure to remit advance financed reimbursements pursuant to the requirements of this section. (Ord. 19-96 § 1, 1997: Ord. 20-93 § 1 (part), 1993.)
All advance financing resolutions shall be recorded by the city in the deed records of Clackamas County, Oregon. Such resolutions shall identify the legal description of the development and benefiting properties. Failure to make such recording shall not affect the legality of an advance financing resolution or agreement. (Ord. 98-2 § 1 (part), 1998: Ord. 20-93 § 1 (part), 1993.)
12.14.100 Public improvements.
Public improvements installed pursuant to advance financing agreement shall become and remain the sole property of the city pursuant to the advance financing agreement. (Ord. 20-93 § 1 (part), 1993.)
12.14.110 Multiple public improvements.
More than one public improvement may be the subject of an advance financing agreement or resolution. (Ord. 20-93 § 1 (part), 1993.)
12.14.120 Advance financed reimbursements on public improvements funded by the city.
In the event the city is the developer for the construction at its own expense of public improvements for which advance financing reimbursements are permissible pursuant to this chapter, the city may, pursuant to the direction of the city council, authorize advance financing agreements which include terms at variance with the terms otherwise required by this chapter. The city council may authorize lower interest rates, may permit installment payments and may extend the time period during which advance financed reimbursements may be required. (Ord. 20-93 § 1 (part), 1993.)
For the safety, convenience, and comfort of City of Sandy Public Transit Vehicle (transit) passengers, and for the safety of personnel and the region, and for the preservation of service quality in pursuit of the City’s duty to provide a cost-effective source of reliable transportation, and to prevent system security vulnerabilities, it is necessary to establish rules and regulations governing conduct on City of Sandy Public Transit (transit) property.
For the purposes of this chapter:
“Assistance Animal” means:
(1) an animal recognized under the Americans with Disabilities Act as a service animal, including a dog guide, hearing ear dog, or other service animal assisting an individual with a physical disability in one or more daily life activities including, but not limited to, pulling a wheelchair, fetching, and balance work; or
(2) a companion animal designated to assist an individual with a mental or psychological disability in accordance with criteria that may be promulgated by the City for identifying companion animals.
“Emergency” means an on-board transit vehicle fire, any incident that presents the risk of actual or threatened serious physical injury to persons, any apparently urgent medical need, or any other circumstance in which the City Manager has declared a state of emergency.
“Person” means any person, firm, corporation, but excluding those acting under direct authority of the Sandy City Council.
“Qualified Exclusion” means an exclusion which excludes a “Transit Dependent” person from use of the Transit System except for use for travel to and from medical and legal appointments, school or training classes, places of employment, obtaining food, clothing and necessary household items, or for accessing any critical services.
“Transit Facilities” means all property, equipment and improvements of whatever nature owned, leased, maintained, operated or otherwise controlled by the City of Sandy, or operated or controlled on the City’s behalf, whether within or without the city limits, and operated for the use of the public for mass transportation purposes.
“Transit Dependent” means a person who has no independent source of transportation and relies solely on public transit for local movement and access.
12.16.030 Prohibited Activities on Transit System
(1) Failure to Vacate Elderly and Disabled Priority Seating : No person shall fail to vacate seats on a transit vehicle designated for use by individuals with disabilities and qualified senior citizens, when requested to do so by a peace officer or a transit employee.
(2) Smoking : No person shall smoke tobacco or any other substance, or shall carry any lighted or smoldering substance in any form aboard a transit vehicle, in any area of a passenger shelter, or within ten feet of any transit vehicle.
(3) Food and Beverages : No person shall bring or carry aboard a transit vehicle food or beverages in open containers, nor consume food aboard a transit vehicle.
(4) Radios, Compact Disk Players and other Sound-Emitting Devices without Earphones : No person, except a peace officer, firefighter, transit employee, or emergency response professional in the course of employment, shall operate a radio, compact disk player, MP3 player, video player or other sound-emitting device aboard any transit vehicle or in or upon any passenger shelter, unless the only sound produced by such item is emitted by a personal listening attachment (earphone) audible only to the person carrying the device producing the sound.
(5) Shopping Carts and Unfolded Carriages or Strollers:
(a) Except while boarding a transit vehicle, no person shall carry an unfolded or occupied carriage or stroller aboard any type of transit vehicle. Carriages or strollers must remain folded while aboard a transit vehicle.
(b) No person shall bring or carry a commercial shopping cart aboard any type of transit vehicle.
(c) No person shall abandon a commercial shopping cart at a transit facility.
(6) Animals, Except Properly Controlled Assistance Animals and Properly Contained Pets: No person shall bring or carry aboard a transit vehicle or be present in or upon a transit facility with an animal except:
(a) A person accompanied by an assistance animal or a person training an assistance animal, so long as the animal is under the control of the person by leash, harness or other device made for the purpose of controlling the movement of an animal.
(b) A person transporting a pet if: (a) the animal is kept and held at all times within a secure container appropriate and constructed for carrying the size and type of animal; and (b) the animal can be transported without risk of injury to the animal and without risk of harm or inconvenience to other riders or transit personnel.
(c) A trained police dog accompanied by a peace officer.
(7) Noxious Fumes or Foul-Smelling Materials or Substances : No person shall carry aboard a transit vehicle any substance or material emitting a foul smell or releasing noxious fumes.
(8) Oversized Packages : No person shall bring or carry aboard a transit vehicle any package or article of a size which will block any aisle or stairway on the vehicle.
(9) Skateboards, Rollerskates and In-line Skates : No person shall ride a skateboard, in-line skates or roller-skates upon a transit vehicle, or transit facility.
(10) Riding or Transport of Motorized Human Transporters and other Wheeled Transportation Devices except in Compliance with Rules of Law : No person shall operate or ride upon a motorized human transporter or other wheeled transportation device upon a transit vehicle or transit facility except as otherwise permitted by law.
(11) Corrosive and Soiling Substances : No person shall carry upon a transit vehicle any corrosive material or soiling substance where containment of such substance cannot be guaranteed.
(12) Excessive Noise: No person shall:
(a) Make excessive or unnecessary noise, including boisterous and unreasonably loud conduct, within any transit vehicle or transit facility with the intent to cause inconvenience, annoyance or alarm to the public, transit personnel, or a peace officer, or with a reckless disregard to the risk thereof; or
(b) Perform vocal or instrumental music, without the prior written authorization of the City.
(13) Display of Lights : No person shall light a flashlight, scope light, or laser light or object that projects a flashing light or emits a beam of light while inside a transit vehicle, except in an emergency.
(14) Improper Use of City Transit Vehicle/City Transit Facility seating: No person shall:
(a) Lie down on or across the seats of a transit vehicle or City transit facility;
(b) Place any object or substance on the seats of a transit vehicle or City transit facility that inhibits the proper use of such seats; or
(c) Block or obstruct the use of the seats of a transit vehicle or transit facility.
(15) Disruptive Conduct Inside a City Transit Vehicle: No person shall occupy, move about or engage in activity in a transit vehicle in a manner that:
(a) Interferes with the free movement of passengers; or
(b) Interferes with or disrupts the function or safe operation of the transit vehicle, including movement that constitutes a distraction to the operator of a transit vehicle; or
(c) Uses a transit vehicle for any purpose other than for transportation.
12.16.040 Misuse of City Transit System
(1) Use of Transit System for Non-Transit Purposes : No person shall enter or remain upon, occupy or use a transit facility for purposes other than boarding, disembarking or waiting for a transit vehicle, in an area where non-transit uses are prohibited by posted signage. A person is in violation of this section only after having occupied a transit facility for a period of time that exceeds that which is reasonably necessary to wait for, board or disembark a transit vehicle.
(2) Destructive Conduct Involving a Transit Vehicle: No person shall interfere with the safe and efficient operation of a transit vehicle through conduct which includes to:
(a) Extend any portion of his or her body through any door or window of a transit vehicle while it is in motion;
(b) Attempt to board or de-board a moving transit vehicle;
(c) Throw, propel or discard any object or substance in any transit vehicle or through any open door or window of a transit vehicle;
(d) Unreasonably prevent or delay the closure of a door on a transit vehicle;
(e) Strike or hit a transit vehicle, stop or cross in front of a transit vehicle for the purpose of stopping the vehicle or gaining passage after the vehicle has concluded boarding;
(f) In any manner hang onto, or attach himself or herself to any exterior part of a transit vehicle while the vehicle is resting or in motion.
(3) Refuse and Waste : No person shall discard or deposit or leave any rubbish, trash, debris, offensive substance or other solid or liquid waste in or upon a transit vehicle or transit facility, except in receptacles provided for that purpose. No person shall spit, defecate, or urinate in or upon a transit vehicle or transit facility, except in the confines of a lavatory where lavatories are available for public use.
(4) Destruction of Signs : No person shall mutilate, deface or destroy any sign, notice or advertisement posted by the City or located on any transit vehicle or transit property.
(5) Posting of Unauthorized Signs or Notices : Except as otherwise allowed by City regulations, no person shall place, permit or cause to be placed any notice or sign upon any transit vehicle or transit facility.
(6) Alcoholic Beverages : No person shall possess an open container of alcoholic beverage on a transit vehicle or transit facility, unless authorized by the City.
(7) Damaging or Defacing City Transit Property: No person shall:
(a) Draw graffiti or any other writing on any transit vehicle or any other transit property; or
(b) Damage, destroy, interfere with, or obstruct in any manner, the property, services or facilities of the transit system.
12.16.050 Criminal Activity
No person shall engage in activity prohibited by the criminal laws of any state, county, or municipality, in which the criminal incident occurs, while on a transit vehicle or in or upon a transit facility.
12.16.060 Prohibited Risks to Transit System Security and Order
(1) Flammable Substances and Ignition Devices : No person shall bring, possess or carry aboard a transit vehicle or facility any flammable substance or device that can cause a spark or flame, except for matches and cigarette lighters. No spark or flame may be lit or initiated at any time by any device on a transit vehicle, including matches and lighters.
(2) Weapons : No person, except a peace officer, shall bring or carry aboard a transit vehicle any firearm, knife (except a folding knife with a blade less than 3 ½ inches in length), or any other instrument, article, device, material or substance specifically designed for, or attempted to be used to, inflict or cause bodily harm to another, except where otherwise provided by law. Where possession of such weapons cannot be prohibited by law, a person in possession of a weapon may not display or carry the weapon in a manner which is likely to result in fear or alarm by other persons or transit employees.
(3) Activation of the Emergency Stop Device Except in an Emergency : No person shall activate the “emergency stop” device of a transit vehicle in the absence of an emergency.
(4) Hazardous and Toxic Material or Substances : No person shall carry, possess or transport any hazardous material, toxic chemical, combustible liquid, biological contagion or agent, radioactive substance or any other inherently dangerous substance onto a transit vehicle or other transit property unless the person is a City employee or authorized personnel acting in the course of employment.
(5) Harassment and Intimidation :
(a) While on a transit vehicle or other transit property, no person shall engage in harassment or intimidation through a course of conduct, including violent, threatening or disruptive behavior or conduct intended and likely to provoke a violent response, which places another person in reasonable fear of imminent physical harm, including, but not limited to, following such person around or about the vehicle or facility, or by preventing or delaying the movement or departure of such person through coercion or intimidation; or
(b) While on a transit vehicle, no person shall continue a course of conduct that may reasonably be expected to result in fear, alarm, or serious offense to other passengers or transit personnel, after having received a lawful directive to cease such conduct or depart the transit vehicle, by a transit employee or a peace officer.
(6) Explosive Materials or Device : No person may carry, possess or transport any explosive material or device, assembled or disassembled, onto a transit vehicle or other transit property unless the person is a City or transit employee, peace officer, or emergency response professional, acting in the course of employment or duty.
(7) Threats : No person may utter a threat to cause damage to a transit vehicle or other transit property, or state a threat to cause disruption to City operations through the use of a bomb, explosive, or any other destructive device or weapon, or release of any harmful substance, while on a transit vehicle or other transit property; or state a threat of physical harm to a peace officer or transit personnel acting in the course of employment.
(8) Interference with Emergency Response : No person may impede the efforts of transit personnel or peace officers in the course of an emergency response, including the failure to obey a lawful order by transit personnel or peace officers uttered in the course of an emergency.
(9) Abandonment of Packages: No person shall knowingly abandon an unauthorized package on a transit vehicle or transit property, where the abandonment of such package is likely to cause suspicion or alarm about its contents, or require the dispatch of emergency response personnel to remove and inspect the package.
(10) Discharge or Detonation of a Weapon : No person may throw an object at or discharge a bow and arrow, air rifle, rifle gun, revolver or other firearm at a transit vehicle or any part of a transit facility, or any person on a transit vehicle or at a transit facility, except a peace officer acting in the course of employment.
(11) Violation of an Interdiction Command : No person shall violate a directive of an Interdiction Command.
12.16.070 Trespass and exclusion from transit facilities
(A) In addition to other measures provided for violation of this code, or any of the laws of the state, any peace officer, as defined by ORS 133.005(3), as amended, or code enforcement officer may exclude any person who violates any provision of this code, any city ordinance, any laws of the state or any rule or regulation duly made and issued by the City from any transit facility for a period of not more than 30 days.
(B) A transit dependent person shall not be issued a complete exclusion from transit facilities unless the person engaged in violent, seriously disruptive, or criminal conduct, or conduct posing a serious threat to the safety of others or to the operation of the transit system. Any person asserting the right to a qualified exclusion on the basis of transit dependence has the burden of establishing such dependence by a preponderance of the evidence.
(C) Written notice shall be given to any person excluded from any transit facility. The notice shall specify the dates and places of exclusion. It shall be signed by the issuing party. Warning of the consequences for failure to comply shall be prominently displayed on the notice.
(D) A person receiving the notice may appeal to the municipal judge in accordance with 12.16.075 of this chapter to have the written notice rescinded or the period shortened. The appeal must be filed within 5 days of receipt of the exclusion notice, unless extended by the municipal judge for good cause shown.
(E) At any time within the 30 days, a person receiving an exclusion notice may apply in writing to the city manager for a temporary waiver from the effects of the notice. The city manager may grant a waiver if good cause exists.
(A) Appeal of an exclusion notice shall be to the municipal judge.
(B) Initiation of an appeal of an exclusion notice shall be filed within five (5) days from the date of the exclusion notice with the municipal court clerk. The municipal judge may waive this requirement for good cause shown.
(C) The request for an appeal hearing shall be in writing and shall contain either a copy or a full and complete description of the notice of exclusion and a statement of the grounds upon which it is contended that the decision to exclude is invalid, unauthorized or otherwise improper.
(D) Upon receipt of a request for an appeal hearing, the municipal court clerk shall schedule a hearing before the judge within 14 days of receipt of the request. Notice of the hearing time and date shall be given to the person requesting the hearing and to the person issuing the exclusion notice.
(E) At the hearing, the judge may determine the matter upon the record. The judge may sustain, reverse or modify the exclusion notice appealed from in his or her judgment. If the appeal concerns an allegation that the excluded person is transit dependent, and the judge finds that the appellant is transit dependent or did not engage in an act that warrants a complete exclusion from transit facilities, the judge shall order a qualified exclusion to permit a transit dependent individual to use the transit system for trips of necessity, including travel to and from medical and legal appointments, school or training classes, places of employment, obtaining food, clothing and necessary household items, or for accessing any other critical services.
(F) The determination of the municipal judge is a quasi-judicial decision and is not appealable to the City Council. Appeals from any determination by the municipal judge shall be by writ of review to the Circuit Court of Clackamas County, Oregon as provided in ORS 34.010 through 34.100.
Any person who violates any of the provisions of this chapter shall be punished for each offense, upon conviction thereof, by a fine of not more than three hundred dollars ($300), or by exclusion from transit facilities not to exceed 30 days, or by both such fine and exclusion.
12.16.090 Criminal Trespass
A person who knowingly violates an order of exclusion from transit facilities commits the crime of Criminal Trespass.
Adopted through Ord. 2010-05, effective 1/5/11
12.18.010 Purpose and Intent
A. It is the purpose of this chapter to promote and protect public health, safety, and general welfare by regulating the planting, maintenance, and removal of trees in and upon public rights-of-way within Sandy.
B. This chapter will be construed and interpreted to promote:
(1) The planting, maintenance, restoration, and survival of desirable trees within the city; and
(2) The protection of residents from personal injury and property damage, and the protection of Sandy and its public rights-of-way from property damage caused or threatened by the improper planting, maintenance, or removal of trees located in and upon public rights-of-way within the city.
A. Tree: For the purposes of this chapter, a tree means any living, standing, woody plant having a single trunk with a caliper of one inch or greater.
B. Street trees: A tree in or on public rights-of-way within the city.
C. Topping: The severe cutting back of limbs to stubs three inches or larger in diameter within the tree's crown to such a degree as to remove the normal canopy and disfigure the tree.
12.18.030 Administration and Authority
A. Authority. The Public Works Director, or designee, will administer and enforce this chapter, including the creation and issuance of permits as described herein.
B. Rules. The Public Works Director, or designee, may develop and periodically review and revise, as necessary, rules and regulations to further implement this chapter. They will consist of standards for the planting, maintenance, and removal of street trees.
A. Scope. No person except the Public Works Director, or designee; a contractor hired by the city and the contractor’s agents; or public utility and its agents may plant, prune or excavate within ten feet of a street tree, or remove an existing street tree or plant a new street tree, without first obtaining a permit from the city.
(1) Permits may be applied for in person or, as applicable, online.
(2) Exception. No permit is required when pruning or branch removal is done to comply with street and sidewalk clearance requirements of Section 8.16.060.A.
B. Fees. Unless the City Council provides otherwise in a resolution, there is no fee for a street tree permit if it is obtained prior to planting, pruning or excavating within ten feet of a street tree, or obtained prior to removing an existing street tree or planting a new street tree.
C. Public Utility Companies. Public utility companies must notify the Public Works Director, or designee, prior to planting, pruning or excavating within ten feet of a street tree, or removing an existing street tree or planting a new street tree, demonstrate that its proposed action is necessary and otherwise in accordance with this chapter and any rules adopted under it, and carry out all such work in accordance with this chapter, rules adopted under it and through accepted arboricultural standards.
12.18.050 Street Tree Maintenance and Care
A. Notification. The Public Works Director, or designee, may notify an adjacent property owner to prune, remove, or otherwise treat any street tree as conditions may require. Neither a property owner’s duty to maintain street trees as provided in this chapter, nor any liability for the property owner's failure to do so, is dependent upon any notice from the city.
B. Debris Removal. A person who prunes, treats, removes, plants or otherwise maintains a street tree is required to remove all debris from the right-of-way by sunset of the same day, unless the Public Works Director specifically authorizes a longer period of time.
C. City Tree Maintenance. The city is authorized to plant, prune, treat, maintain and remove street trees as may be necessary to preserve or enhance the symmetry and beauty of such areas. The city may remove, or cause or order to be removed, any street tree or part thereof that is unsafe or may be injurious or detrimental to sewers, electrical power lines, natural gas lines, water lines or other public improvements, or is affected by any fungus, insect or other pest. This section does not prohibit the planting of street trees by adjacent property owners, provided that a permit is obtained prior to such planting and the selection and location of the tree conforms to this chapter.
D. City Held Harmless. The City of Sandy and its officers, officials, employees and agents are not be liable for injury, damage, or loss to person or property caused in whole or part by the defective or dangerous condition of any street tree.
A. Notice to Maintain or Remove. Should any property owner fail to maintain adjacent street trees in accordance with this chapter, the Public Works Director, or designee, may order such person or persons to maintain or remove such trees following the notice procedures specified in SMC 12.10.040 (sidewalk maintenance).
12.18.070 Mutilation and Topping Prohibited
A. Mutilation. Unless permitted to do so in accordance with this chapter, no person may damage, cut, carve, transplant, or remove any street tree; attach any rope, wire, nails, advertising posters, or other objects to a street tree; allow any gaseous liquid or solid substance which is harmful to trees to come in contact with a street tree; or set fire or permit any fire to burn when such fire or the heat generated from it may injure any portion of a street tree.
B. Tree Topping. Street trees may not be topped, unless the Public Works Director or designee determines in writing that all other pruning practices are impractical relative to the condition or location of the street tree.
12.18.080 Street Tree Planting
A. Permitted Street Trees. Trees planted in the public right-of-way shall conform to the City of Sandy’s Street Tree List, unless specifically authorized through the issuance of a permit.
A. Any person who violates any provision of this chapter or who fails to comply with any notice issued pursuant to it is subject to a fine of $500 for each separate violation. If this chapter is violated and a street tree is injured, mutilated or is removed, the cost to repair or replace the street tree will be borne by the party in violation. The replacement value of street trees will be determined in accordance with the Valuation of Landscape Trees, Shrubs and Other Plants, as published by the International Society of Arboriculture.
B. Failure to Comply. If a person to whom a notice is directed fails to comply within the time specified in the order, the city may cause the street tree in question to be maintained, pruned and/or removed or replaced, as necessary. The city’s costs, plus a 10 percent administrative fee, may be assessed to the property owner, with a lien placed on the property, as provided by Sections 12.10.060 and 12.10.070.\
1. For statutory provisions regarding city improvements and works generally, see ORS Ch. 223.
2. For statutory provisions regarding sidewalk improvement districts, see ORS 223.880.
3. For provisions relating to systems development charges for streets, see Ch. 15.28 of this code.