HomeMy WebLinkAbout1998-0121 Study Session PACKET
FOR
COUNCIL STUDY SESSION
JANUARY 21, 1998
CITY OF ASHLAND
Ashland City Council
(541) ~2
20 East Main, Ashland, OR 97520
(541) ~11 . Fax
MEMORANDUM
TO:
The Mayor and City Council
FROM:
Councilor Steve Hauck
RE:
Telecommunications Ordinance
As you may recall, over the past year the council has adopted several items dealing
with telecommunications regulation within the city. These inciuded a resolution which
laid out our policy basis for regulations, a "Cell-Tower" ordinance and a "Right-of-Way"
ordinance.
What you have before you today is the culmination of this effort, a comprehensive
ordinance dealing with the franchising and licensing of telecommunication providers
within the City of Ashland. This ordinance lays the legal groundwork to provide a
competitively equal playing field for all providers in each of the various types of
services and still protect the city's rights in franchising authority and right-of-way
management.
Telecommunications will revolutionize the manner in which communities and their
govemments will operate in the next century. We are in the infancy of the information
age. Hardly a day goes by without articies and programs regarding
telecommunications and how our lives and daily routines will be affected by the
advancement of technology and telecommunications. Local government must be a
part of that advancement.
People expect their local government to provide and regulate municipal services, such
as streets, water and sewer, police and fire, to regulate land use, to provide and
manage recreational facilities, and where appropriate, to regulate and license business.
They expect it to encourage appropriate economic development and protect the local
welfare. Today they also expect local government to be actively involved in the
telecommunications revolution. City government must recognize that
telecommunication Infrastructures are just as important to municipal service as other
traditionally recognized municipal services. The local government that aggressively
regulates and encourages managed development of telecommunication infrastructures
will ensure its community's Mure. Those that fail will be left behind.
You may (and should) ask, why do we need this ordinance? What's its purpose?
The Mayor and CouncD
January 21,1998
Pace 2
There are many answers to these questions, the following highlights some of the most
significant reasons that I believe this effort is important to the city and its citizens.
A. Control Of the Right-of-Way
A major objective of our City is to retain local responsibility for and control over the
use of public rights-of-way to protect our citizens and enhance the quality of life. In
order to monitor telecommunication providers who provide their services to our
residents through the public rights-of-way, this ordinance provides regulations that
govern these providers in a uniform and consistent manner and provides for fees that
fairly compensate the city for the benefits that telecommunication providers receive
from the use of the rights-of-way.
A recent white paper prepared by the National Association of Telecommunication
Officers and Advisors highlighted the value and importance of public rights-of-way.
Every time a new carrier enters a right-of-way, local government (and the taxpayers)
face both increased direct costs (for road replacement) and indirect costs Oncreased
travel time, loss of access and trade to local businesses, and increased noise pollution
and visual intrusion, to name a few).
This NATOA paper used information from Denver to illustrate this point. Denver's
public rights-of-way have an acquisition value of $5.5 billion. The market rental value of
this commodity is $483 million. However, the city receives from all users a total of only
$38 million a year in compensation. To make matters worse, Denver expends over
$500 million a year maintaining those rights-of-way. In other words, Denver "leases" a
property right for only 13% of its fair market value, while taxpayers fund $500 million
maintaining that property at no cost to the private user. Who is subsidizing whom?
It is also clear that public rights-of-way are a limited public resource. The typical urban
subsurface is already crowded with a maze of wires, conduits and pipes. Cities cannot
continue to allow every telecommunications service provider to lay their own conduit
and wiring. The same NATOA paper demonstrates how expensive it can be for a city
to neglect its responsibility to protect it rights-of-way. The number of cuts made to a
street surface has the effect of greatly reducing the useful life of the street surface.
Streets with three to nines cuts have a service life 30% less than streets with three
cuts. Streets with greater than nine cuts experience a 50% reduction in service life. At
a minimum, Ashland must receive adequate compensation in kind or in cash for the
intrusion into and use of the public rights-of-way.
B. Universal Service
Every one of our citizens needs to be included in the information highway. Through
the exercise of our franchising authority, we can playa tremendous role in assuring
that our community benefits from the latest state-of-the-art technology. Moreover, the
city can assure that telecommunication providers utilizing the rights-of-way connect
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The Mayor and Councll
January 21, 1998
Paoe 3
neighborhoods, and citizens within those neighborhoods, to the communication
highway as early as possible.
One effort of this ordinance is to provide effective regulation to accomplish this
.universal service. goal. It allows us to exercise our responsibility to franchise and
license users of the rights-of-way in a manner that precludes redlining or discrimination
amongst users or location. Further, it promotes universal service by realistically
approaching franchising and licensing in a fair manner that encourages and rewards
telecommunication providers that strive for and achieve universal service.
C. Economic Development
There is no doubt that economic development potential is enhanced by having
available the broadest range of telecommunication services that meet the needs of our
community. Today, and certainly in the Mure, businesses will want to operate in
localities that possess a high quality telecommunications infrastructure in order to
make full use of their investment in state-of-the-art office technology. Technology
allows businesses to run more cheaply and efficiently. It is essential that Ashland use
the tools available, including right-of-way management, and fair and equitable
regulation, to ensure a solid telecommunications infrastructure that will provide
incentive to maintain and develop existing businesses in Ashland.
D. Enhanced Quality of ute
Telecommunications can enhance the quality of life. Solid telecommunication facilities
offer a never-ending list of services that can improve the quality our schools, hospital,
businesses, government and more. Such services can enhance the quality of life of
our community by making available to each and every household the broadest range
of telecommunication services and benefits possible. Unless Ashland exercises our
role in determining the Mure needs of our community, someone else will make these
choices. The quality of life and the opportunities that can be achieved through
utilization of the right-of-way by the private sector can best be achieved by the active
and ongoing participation of the city in telecommunication regulation outlined in this
ordinance.
E. Inventory Local Infrastructure
To control our own Mure, we need to know the answers to the following questions.
Who are the current players? How much right-of-way is under use now? Do we know
who is using our right-of-way? Do we have all the proper licenses or permits
governing their use? What are the terms of those licenses, permits and franchises?
Do the systems provide service throughout Ashland? Do they meet our current local
needs? Do they interconnect with adjoining communities? The licensing of all
telecommunication providers contained within this ordinance will provide the answers
we need to effectively control the use of our rights-of-way and plan for and influence
the Mure of telecommunications within Ashland.
The Mayor and CouncU
January 21,1998
Paae 4
I urge you to carefully read this ordinance and help us craft a finished product that will
meet the needs of Ashland now and in the Mure.
Councilor Steve Hauck
Attachment
(p:ord\telecomn\hauck.mem)
ORDINANCE NO.
AN ORDINANCE ADDING TITLE 16 TO THE ASHLAND
MUNICIPAL CODE TO REGULATE, FACILITATE AND PROVIDE
FOR TELECOMMUNICATIONS WITHIN THE CITY OF ASHLAND
THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS:
SECTION 1. The following title and chapters are added to the Ashland Municipal
Code:
Title 16
TELECOMMUNICATIONS
Chapters:
16.04 Purpose, Definitions
16.08 Registration of Telecommunications Carriers
16.12 Construction Standards
16.16 Location of Telecommunications Facilities
16.20 Telecommunications Ucense of Franchise
16.24 General Ucense and Franchise Terms, Rates
16.28 General Provisions
PAGE 1-TELECOMMUNICATlONS ORDINANCE lP:ordItelocommitelecomm.cl-1J
Chapter 16.04
Purpose, Definitions
Sections:
16.04.010
16.04.020
16.04.030
16.04.040
Purpose
Jurisdiction and Management of the Public Rights of Way
Regulatory Fees and Compensation Not a Tax
Definitions
16.040.010 Purpose. The purpose of this title is to:
A Comply with the provisions of the 1996 Telecommunications Act as they
apply to local governments, telecommunications carriers and the services
they offer;
B. Establish clear local guidelines, standards and time frames for the
exercise of local authority with respect to the regulation of
telecommunications carriers and services;
C. Promote competition on a competitively neutral basis in the provision of
telecommunications services;
D. Encourage the provision of advanced and competitive
telecommunications services on the widest possible basis to businesses
institutions and residents of the city;
E. Permit and manage reasonable access to the publiC rights of way of the
city for telecommunications purposes on a competitively neutral basis
and conserve the limited physical capacity of those public rights of way
held in trust by the city;
F. Assure that the city's current and ongoing costs of granting and
regulating private access to and the use of the public rights of way are
fully compensated by the persons seeking such access and causing
such costs;
G. Secure fair and reasonable compensation to the city and its residents for
permitting private use of the public right of way;
H. Assure that all telecommunications carriers providing facilities or services
within the city, or passing through the city, register and comply with the
ordinances, rules and regulations of the city;
I. Assure that the city can continue to fairly and responsibly protect the
public health, safety and welfare of its citizens;
PAGE 2-TELECOMMUNICATlONS ORDINANCE Cp:ardlt...........\t............d-ll
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J. Enable the city to discharge its public trust consistent with the rapidly
evoMng federal and state regulatory policies, industry competition and
technological development.
16.04.020 Jurisdiction and Management of the Public Rights of Way
A. The city has jurisdiction and exercises regulatory control over all public
rights of way within the city under authority of the city charter and state
law.
B. Public rights of way include, but are not limited to, streets, roads,
highways, bridges, alleys, sidewalks, trails, paths, public easements and
all other public ways or areas, including the subsurface under and air
space over these areas.
C. The city has jurisdiction and exercises regulatory control over each public
right of way whether the city has a fee, easement, or other legal interest
in the right of way. The city has jurisdiction and regulatory control over
each right of way whether the legal interest in the right of way was
obtained by grant, dedication, prescription, reservation, condemnation,
annexation, foreclosure or other means.
D. No person may occupy or encroach on a public right of way without the
permission of the city. The city grants permission to use rights of way by
franchises, licenses and permits.
E. The exercise of jurisdiction and regulatory control over a public right of
way by the city is not official acceptance of the right of way, and does
not obligate the city to maintain or repair any part of the right of way.
F. The city retains the right and privilege to cut or move any
telecommunications facilities located within the public rights of way of the
city, as the city may determine to be necessary, appropriate or useful in
response to any public health or safety emergency.
16.04.030 Regulatory Fees and Compensation Not a Tax
A. The regulatory fees and costs provided for in this title, and any
compensation charged and paid for the public rights of way provided for
in this title, are separate from, and in addition to, any and all federal,
state, local and city taxes as may be levied, imposed or due from a
telecommunications carrier, its customers or subscribers, or on account
of the lease, sale, delivery or transmission of telecommunications
services.
PAGE 3-TELECOMMUNICATIONS ORDINANCE lP:ord\.oI0c0nml.oI0c0nm.d-ll
B. The city has determined that any fee imposed by this title is not subject
to the property tax limitations of Chapter XI, Section 11 (b) of the Oregon
Constitution.
16.04.040 Definitions. For the purpose of this title the following terms, phrases, words
and their derivations shall have the meaning defined in this chapter. When not
inconsistent with the context, words used in the present tense include the Mure,
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. Words not defined in this chapter shall be given the meaning set
forth in the Communications Policy Act of 1934, as amended, the Cable
Communications Policy Act of 1984, the Cable Television Consumer Protection and
Competition Act of 1992, and the Telecommunications Act of 1996. If not defined
there, the words shall be given their common and ordinary meaning.
A. Aboveground or Overhead Facilities means utility poles, utility facilities
and telecommunications facilities above the surface of the ground,
including the underground supports and foundations for such facilities.
B. Affiliated Interest shall have the same meaning as ORS 759.010.
C. Cable Act shall mean the Cable Communications Policy Act of 1984, 47
U.S.C. ~521, et seq., as now and hereafter amended.
D. Cable Service means the one-way transmission to subscribers of video
programming, or other programming service; and subscriber interaction,
if any, which is required for the selection or use of such video
programming or other programming service.
E. Control or Controlling Interest means actual working control in whatever
manner exercised.
F. City Property means and includes all real property owned by the city,
other than public streets and utility easements as those are defined in
this chapter, and all property held in a proprietary capacity by the city,
which are not subject to right of way licensing and franchising as
provided in this title.
G. Conduit means any structure, or section of any structure, containing one
or more ducts, conduits, manholes, handholes, bolts, or other facilities
used for any telegraph, telephone, cable television, electrical, or
communications conductors, or cable right of way, owned or controlled,
in whole or in part, by one or more public or private utilities.
H. Duct means a single enclosed raceway for conductors or cable.
PAGE 4-TELECOMMUNICATIONS ORDINANCE {p:ord\.olecorrml.olecorrm.d-lI
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I. FCC or Federal Communications Commission - means the federal
administrative agency, or lawful successor, authorized to regulate and
oversee telecommunications carriers, services and providers on a
national level.
J. Franchise or Ucense means an agreement between the city and a
grantee which grants a privilege to use public right of way and utility
easements within the city for a dedicated purpose and for specific
compensation.
K Grantee means the person to which a franchise or license is granted by
the city.
L Gross Revenue means gross revenue derived by grantee from the
provision of telecommunications services originating or terminating in the
city on facilities covered by the franchise or license. For the purposes of
this definition, the following items may be excluded from gross revenues:
1. Net uncollectibles from revenue included in gross revenues.
2. Revenue derived from the provision of interstate toll service.
3. Revenue derived from the provision of telecommunications
service on facilities from an end user to an interexchange carrier's
point of presence, provided that at least 90% of the annual traffic
on the facility is interstate.
4. Revenue derived from toll transport services.
M. Local Exchange Service means service provided within the boundaries of
an exchange as the exchange appears on the exchange maps filed with
and approved by the Oregon Public Utility Commission. Local exchange
service includes 'shared telecommunications service,' as defined in ORS
Chapter 759.
N. Oregon Public Utilities Commission or OPUC means the statutorily
created state agency In the State of Oregon responsible for licensing,
regulation and administration of certain communications providers as set
forth in Oregon Law.
O. Person means an indMdual, corporation, company, association, joint
stock company or association, firm, partnership, or limited liability
company.
P. Private Telecommunications Network means a system, including the
construction, maintenance or operation of the system, for the provision of
a service or any portion of a service, by a person for the exclusive use of
that person and not for resale, directly or indirectly. 'Private
telecommunications network' includes services provided by the State of
Oregon pursuant to ORS 190.240 and 283.140.
PAGE 5-TELECOMMUNICATlONS ORDINANCE ll':onI\l..........\'...........d-ll
a. Public Rights of Way include, but are not limited to, streets, roads,
highways, bridges, alleys, sidewalks, trails, paths, public easements and
all other public ways or areas, including the subsurface under and air
space over these areas, but only to the extent of the city's right, title,
interest or authority to grant a license or franchise to occupy and use
such streets and easements for telecommunications facilities.
R. Public Street means any highway, street, alley or other public right of way
for motor vehicle travel under the jurisdiction and regulatory control of
the city which has been acquired, established, dedicated or devoted to
vehicular travel and pedestrian purposes not inconsistent with
telecommunications facilities.
S. Telecommunications means the transmission between and among points
specified by the user, of information of the user's choosing, without
change in the form or content of the information as sent and received.
T. Telecommunications Act means the Telecommunications Act of 1996 (47
U.S.C. ~ 151 et seq.) as adopted and as hereafter amended.
U. Telecommunications Carrier means any provider of telecommunications
services and includes every person that directly or indirectly owns,
controls, operates or manages telecommunications facilities within the
city and competitive providers of local exchange or interexchange
services.
V. Telecommunications Facilities or System means the equipment, other
than customer premises equipment, used by a carrier to provide
telecommunications services.
W. Telecommunications Service means the offering of telecommunications
for a fee directly to the public, or to such classes of users as to be
effectively available directly to the public, regardless of the facilities used.
Telecommunications service includes but is not limited to any service
provided for the purpose of voice, video or data transmission, including,
but not limited to, local exchange service, access service, extended area
service, call origination, interconnection, switching, transport, or call
termination and any other telecommunications services identified and
authorized by the FCC or the OPUC.
X. Telecommunications Utility has the same meaning as ORS 759.005(1)(a).
Y. Toll Service means telecommunications service provided between local
exchanges carried on the public switched network for which charges are
made on a per-unit basis, excluding calls made within an extended area
service region approved by the OPUC.
PAGE 6-TELECOMMUNICATlONS ORDINANCE Cp:ord\tol""""""lt............c1-lI
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Z. Underground Facilities .means utility and telecommunications facilities
located under the surface of the ground, excluding the underground
foundations or supports for 'Overhead facilities.'
AA. Usable Space means all the space on a pole, except the portion below
ground level, the 20 feet of safety clearance space above ground level,
and the safety clearance space between communications and power
circuits.
BB. Utility Easement means any easement granted to or owned by the city
and acquired, established, dedicated or devoted for public utility
purposes not inconsistent with the telecommunications facilities.
CC. Utility Facilities means the plant, equipment and property, including but
not limited to the poles, pipes, mains, conduits, ducts, cable, wires,
transformers, plant and equipment located under, on, or above the
surface of the ground within the public right of way of the city and used
or to be used for the purpose of providing utility or telecommunications
services.
PAGE 7-TELECOMMUNICATIONS ORDINANCE (p:ordIt..........lt..ocomm.c1-11
Chapter 16.08
Registration of Telecommunications Carriers
Sections:
16.08.010
16.08.020
16.08.030
16.08.040
Purpose
Registration Required
Registration Fee.
Exceptions to Registration
16.08.010 Purpose. The purpose for registration is:
A. To assure that all telecommunications carriers who have facilities or
provide services within the city comply with the ordinances, rules and
regulations of the city.
B.. To provide the city with accurate and current information concerning the
telecommunications carriers who offer to provide telecommunications
services within the city, or that own or operate telecommunications
facilities within the city.
C. To assist the city in the enforcement of this title and the collection of any
city franchise fees, license fees or charges that may be due the city.
D. To assist the city in monitoring compliance with local, state and federal
laws as they apply to grantees under this title.
16.08.020 Registration Required. Except as provided in section 16.08.040, all
telecommunications carriers having telecommunications facilities within the corporate
limits of the city, and all telecommunications carriers that offer or provide
telecommunications service to customer premises within the city, shall register with the
city pursuant to this chapter on forms to be provided by the Rnance Department
which shall include the following:
A. The identity and legal status of the registrant, including any affiliates.
B. The name, address and telephone number of the officer, agent or
employee responsible for the accuracy of the registration statement.
C. A description of the registrant's existing or proposed telecommunications
facilities within the city.
D. A description of the telecommunications service that the registrant
intends to offer or provide, or is currently offering or providing, to
persons, firms, businesses or institutions within the city.
PAGE 8-TELECOMMUNICATlONS ORDINANCE (P:ordI.olocomm\lol0c0mm.d-lI
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E. Information sufficient to determine whether the registrant is subject to
public right of way licensing or franchising under this title.
F. Information sufficient to determine whether the transmission, origination
or receipt of the telecommunications services provided or to be provided
by the registrant constitutes an occupation or privilege subject to any
municipal telecommunications tax, utility tax or other occupation tax
imposed by the city.
G. Information sufficient to determine that the applicant has applied for and
received any certificate of authority or permit required by the FCC or the
OPUC to provide telecommunications services within the city.
H. Information sufficient to determine that the applicant has applied for and
received any construction permit, operating license or other approvals
required by the FCC to have telecommunications facilities within the city.
I. If the registrant has applied for and received a city business license, list
the license number.
J. Such other information as the city may reasonably require.
16.08.030 Registration Fee. Each application for regi~ation as a telecommunications
carrier shall be accompanied by a nonrefundable registration fee, equal to the
minimum new business license fee as established by the council.
16.08.040 Exceptions to Registration. The following telecommunications carriers are
excepted from registration:
A. Telecommunications carriers that are owned and operated for its own
use by the state or a political subdivision of this state.
B. A private telecommunications network, provided that such network does
not use or occupy any public rights of way of the city or other rights of
way within the city.
PAGE 9-TELECOMMUNICATlONS ORDINANCE {p:ord\...........'............c1-11
Sections:
16.12.010
16.12.020
16.12.030
16.12.040
16.12.060
16.12.070
16.12.080
16.12.090
16.12.100
16.12.110
16.12.120
16.12.130
16.12.140
16.12.150
16.12.160
16.12.170
16.12.180
16.12.190
16.12.200
16.12.210
Chapter 16.12
Construction Standards
General
Construction Codes
Construction Permits
Permit Applications
Traffic Control Plan
Construction Permit Fee
Issuance of Permit
Construction Schedule
Locates
Compliance with Permit
Display of Permit
Survey of Underground Facilities
Noncomplying Work
Completion of Construction
As-Built Drawings
Restoration of Public Rights of Way, Other Rights of Way and City
Property
Landscape Restoration
Construction and Completion Bond
Responsibility of Owner
Coordination of Construction Activities
16.12.010 General. No person shall commence or continue with the construction,
installation or operation of telecommunications facilities within publiC rights of way in
the city except as provided in this chapter.
16.12.020 Construction Codes. Telecommunications facilities shall be constructed,
installed, operated and maintained in accordance with all applicable federal, state and
local codes, rules and regulations Including the National Electrical Code and the
National Electrical Safety Code.
16.12.030 Construction Permits. No person shall construct or install any
telecommunications facilities within the city without first obtaining a construction permit,
provided, however:
A. No permit shall be issued for the construction or installation of
telecommunications facilities within the city unless the
telecommunications carrier has filed a registration statement with the city
pursuant to chapter 16.08.
B. No permit shall be issued for the construction or installation of
telecommunications facilities in the public rights of way unless the
PAGE 10-TELECOMMUNICATlONS ORDINANCE Cp:ord\tol........\tol.........cl-lI
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telecommunications carrier has applied for and received a license or
franchise pursuant to chapter 16.20.
C. No permit shall be issued for the construction or installation of
telecommunications facilities without payment of the construction permit
fee established in section 16.12.070.
16.12.040 Permit Applications. Applications for permits to construct
telecommunications facilities shall be submitted upon forms to be provided by the city
and shall be accompanied by drawings, plans, specifications and computer maps in a
format specified by the city, in sufficient detail to demonstrate:
A. That the facilities will be constructed in accordance with all applicable
codes, rules and regulations.
B. The location and route of all facilities to be installed aboveground or on
existing utility poles. The location and route of all facilities to be located
under the surface of the ground, including the line and grade proposed
for the burial at all points along the route which are within the public
rights of way.
C. The location of all existing underground utilities, conduits, ducts, pipes,
mains and installations which are within the public rights of way along the
underground route proposed by the applicant.
D. The location of all other facilities to be constructed within the city, but not
within the public rights of way.
E. The construction methods to be employed for protection of existing
structures, fixtures, and facilities within or adjacent to the public rights of
way.
The location, dimension and types of all trees within or adjacent to the public rights of
way along the route proposed by the applicant, together with a landscape plan for
protecting, trimming, removing, replacing and restoring any trees or areas to be
disturbed during construction.
16.12.060 Traffic Control Plan. All permit applications which involve work on, in, under,
across or along any public rights of way shall be accompanied by a traffic control plan
demonstrating the protective measures and devices that will be employed, consistent
with Unitorm Manual of Traffic Control Devices, to prevent injury or damage to persons
or property and to minimize disruptions to efficient pedestrian and vehicular traffic.
16.12.070 Construction Permit Fee. Unless otherwise provided in a license or franchise
agreement, prior to issuance of a construction permit, the applicant shall pay a permit
fee equal to $250.00 or six tenths of one percent (0.6%) of the estimated cost of
constructing the telecommunication facilities, whichever is greater.
PAGE 11-TELECOMMUNICATlONS ORDINANCE (P:ordItolecammltolecamm.d-l1
16.12.080 Issuance of Permit. If satisfied that the applications, plans and documents
submitted comply with all requirements of this title, the Department of Public Works
shall issue a permit authorizing construction of the 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.
16.12.090 Construction Schedule. The permittee shall submit a written construction
schedule to the Department of Public Works before commencing any work in or about
the public rights of way. The permittee shall further notify the Department of Public
Works not less than two working days in advance of any excavation or work in the
public rights of way. When feasible, permittee shall contact all other utilities located
within the right of way in order to allow joint projects if desired to minimize duplication
of work and unnecessary excavation.
16.12.100 Locates. The permittee is responsible for becoming familiar with, and
understanding the provisions of ORS Chapter 757, governing the location of
underground facilities (the 'One-Call statutes'). Grantee shall comply with the terms
and conditions set forth in the One-Call statutes.
16.12.110 Compliance with Permit. All construction practices and activities shall be in
accordance with the permit and approved final plans and specifications for the
facilities. The Department of Public Works and its representatives shall be provided
access to the work site and such further information as they may require to ensure
compliance with such requirements.
16.12.120 Display of Permit. The permittee shall maintain a copy of the construction
permit and approved plans at the construction site, which shall be displayed and made
available for inspection by the Department of Public Works or its representatives at all
times when construction work is occurring.
16.12.130 Survey of Underground Facilities. If the construction permit specifics the
location of facilities by depth, line, grade, proximity to other facilities or other standard,
the permittee shall cause the location of such facilities to be verified by a registered
Oregon land surveyor. The permittee shall relocate any facilities which are not located
in compliance with permit requirements at the sole expense of the permittee.
16.12.140 Noncomplying Work. Upon order of the Department of Public Works, all
work which does not comply with the permit, the approved plans and specifications for
the work, or the requirements of this title, shall be removed at the sole expense of the
permittee.
16.12.150 Completion of Construction. 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 authorized by a permit within city
rights of way, including restoration, must be completed within 120 days of the date of
issuance.
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16.12.160 As-Built Drawings. Within 60 days after completion of construction, the
permittee shall furnish the city with two complete sets of plans and a set in a
computerized format specified by the city, drawn to scale and certified to the city as
accurately depicting the location of all telecommunications facilities constructed
pursuant to the permit.
16.12.170 Restoration of Public Rights of Way, Other Rights of Way and City Property.
A. When a permittee, or any person acting on its behalf, does any work in
or affecting any public rights of way, other rights of way or city property,
it shall, at its own expense, promptly remove any obstructions and
restore such ways or property to as good a condition as existed before
the work was undertaken, unless otherwise directed by the city.
B. If weather or other conditions do not permit the complete restoration
required by this section, the permittee shall temporarily restore the
affected rights of way or property. Such temporary restoration shall be at
the permittee's sole expense and the permittee shall promptly undertake
and complete the required permanent restoration when the weather or
other conditions no longer prevent such permanent restoration.
C. If the permittee fails to restore rights of way or property to as good a
condition as existed before the work was undertaken, the city shall cause
such restoration to be made at the expense of the permittee.
D. A permittee or other person acting in its behalf shall use suitable
barricades, flags, flagmen, lights, flares and other measures as required
for the safety of all members of the general public and to prevent injury
or damage to any person, vehicle or property by reason of such work in
or affecting such rights of way or property.
16.12.180 Landscape Restoration.
A. All trees, landscaping and grounds removed, damaged or disturbed as a
result of the construction, installation, maintenance, repair or replacement
of telecommunications facilities, whether such work is done pursuant to a
franchise, license, or permit shall be replaced or restored as nearly as
may be practicable, to the condition existing prior to performance of
work.
B. All restoration work within the public ways shall be done in accordance
with landscape plans approved by the city.
C. Any tree, shrub or other landscaping that shows substantial damage
within eighteen months of completion of construction, attributable to
construction, must be replaced at the sole expense of the grantee.
PAGE 13-TELECOMMUNICATIONS ORDINANCE fp:ordI.elocanml'e1ocanm.d-lI
16.12.190 Construction and Completion Bond. Unless otherwise provided in a license
or franchise agreement, or unless the city otherwise specifically approves an
alternative security to assure performance, a performance bond written by a corporate
surety acceptable to the city, and authorized to transact business in Oregon, equal to
at least 100% of the estimated cost of constructing grantee's telecommunications
facilities within the public rights of way of the city shall be deposited before
construction is commenced.
A. The performance bond shall remain in force until 60 days after
substantial completion of the work, as determined in writing by the city,
including restoration of public rights of way and other property affected
by the construction.
B. The performance bond shall guarantee, to the satisfaction of the city:
1. timely completion of construction;
2. construction in compliance with applicable plans, permits, technical
codes and standards;
3. proper location of the facilities as specified by the city;
4. restoration of the public rights of way and other property affected by
the construction;
5. the submission of 'as-built' drawings after completion of the work as
required by this title; and
6. timely payment and satisfaction of all claims, demands or liens for
labor, material or services provided in connection with the work.
16.12.200 Responsibility of Owner. The owner of the facilities to be constructed and, if
different, the grantee, are responsible for performance of and compliance with all
provisions of this chapter.
16.12.210 Coordination of Construction Activities. All grantees are required to
cooperate with the city and with each other.
A. By January 1 of each year, grantees shall provide the city with a
schedule of their proposed construction activities for that calendar year
in, around or that may affect the public rights of way.
B. Each grantee shall meet with the city, other grantees and users of the
public rights of way annually or as determined by the city to schedule
and coordinate construction in the public rights of way.
C. All construction locations, activities and schedules shall be coordinated,
as ordered by the city engineer, to minimize public inconvenience,
disruption or damages. All construction locations, activities and
schedules invoMng overhead construction shall also be coordinated also
with the Department of Electric Utilities in order to ensure facilities and
space are available.
PAGE 14-TELECOMMUNICATIONS ORDINANCE Cp:ordIt...........ltelecomm.d-lI
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Chapter 16.16
Location of Telecommunications Facilities
Sections:
16.16.010
16.16.020
16.16.030
16.16.040
Location of Facilities
Interference with the Public Rights of Way
Relocation or Removal of Facilities
Removal of Unauthorized Facilities
16.16.010 Location of Facilities. All facilities located within the public right of way or
utility easements shall be constructed, installed and located in accordance with the
following terms and conditions, unless otherwise specified in a license or franchise
agreement:
A. Grantee shall install its telecommunications facilities underground unless
the city specifically permits attachments to utility poles or other
aboveground facilities.
B. Grantee shall install its telecommunications facilities within an existing
underground duct or conduit owned by it whenever surplus capacity
exists within such utility facility.
C.A grantee with permission to install overhead facilities shall install its
telecommunications facilities on pole attachments to existing utility poles
only, and then only if surplus space is available as determined by the
Department of Electric Utilities.
D. Whenever any existing electric utilities are located underground within a
public right of way of the city, a grantee with permission to occupy the
same public right of way must also locate its telecommunications facilities
underground. Whenever any overhead electric utilities are relocated
underground, any grantee with permission to occupy the same publiC
right of way must also relocate underground.
E. Whenever any new or existing electric utilities, cable facilities or
telecommunications facilities are located or relocated underground within
a publiC right of way of the city, a grantee that currently occupies the
same public right of way shall relocate its facilities underground
concurrently with the other affected utilities to minimize disruption of the
public right of way, absent extraordinary circumstances or undue
hardship as determined by the city and consistent with state law.
F. Whenever new telecommunications facilities will exhaust the capacity of a
public street or utility easement to reasonably accommodate future
telecommunications carriers or facilities, the city may require the grantee,
PAGE 15-TELECOMMUNICAT10NS ORDINANCE lp:ardI'e10c0nvn\'e1..........cl-1'
to provide additional ducts, conduits, manholes and other facilities for
nondiscriminatory access to future carriers.
G. The city engineer may grant exceptions to some or all of the
requirements of this section If the engineer determines, in the engineer's
sole discretion, that a waiver is necessary to fulfill the purpose and intent
of this title.
16.16.020 Interference with the Public Rights of Way. No grantee may locate or
maintain its telecommunications facilities so as to unreasonably interfere with the use
of the public rights of way by the city, by the general public or by other persons
authorized to use or be present in or upon the public rights of way. All such facilities
shall be moved by the grantee, temporarily or permanently, as determined by the city
at the sole expense of the grantee. All use of public rights of way shall be consistent
with city codes, ordinances and regulations.
16.16.030 Relocation or Removal of Facilities. Within 60 days following written notice
from the city, a grantee shall, at its own expense, temporarily or permanently remove,
relocate, change or alter the position of any telecommunications facilities within the
public rights of way whenever the city shall have determined that such removal,
relocation, change or alteration is reasonably necessary for:
A. The construction, repair, maintenance or installation of any city or other
public Improvement in or upon the public rights of way.
B. The operations of the city or other governmental entity in or upon the
public rights of way.
Notwithstanding the 60 day limit, a grantee shall, at its own expense, relocate
overhead facilities within 30 days following written notice from the Electric Utilities
Department that the city has space on poles for such purpose.
The 60 day limit may be waived by consent of the parties. Waivers shall not be
unreasonably withheld.
16.16.040 Removal of Unauthorized Facilities. Within 30 days following written notice
from the city, any grantee, telecommunications carrier, or other person that owns,
controls or maintains any unauthorized telecommunications system, facility or related
appurtenances within the public rights of way of the city shall, at its own expense,
remove such facilities or appurtenances from the public rights of way of the city. A
telecommunications system or facility is unauthorized and subject to removal in the
following circumstances:
A. One year after the expiration or termination of the grantee's
telecommunications license or franchise.
PAGE 16-TELECOMMUNICATIONS ORDINANCE tp:ord\tolllCOllmltolllCOllm.d-ll
. ,.~_:c~. ,~:..;' . 'II :'I-~ .~~,~ .';_~'
B. Upon abandonment of a facility within the public rights of way of the city.
A facility will be considered abandoned when it is deactivated, out of
service, or not used for its intended and authorized purpose for a period
of 90 days or longer. A facility will not be considered abandoned if it is
temporarily out of service during performance of repairs, if the facility is
being replaced or if the facility has been disconnected because the
building or property being served is vacant
C. If the system or facility was constructed or installed without the prior
grant of a telecommunications license or franchise.
D. If the system or facility was constructed or installed without the prior
issuance of a required construction permit.
E. If the system or facility was constructed or installed at a location not
permitted by the grantee's telecommunications license or franchise.
F. If the system interferes with or adversely affects existing
telecommunication facilities.
The 30 day limit may be waived by consent of the parties. Waivers shall not be
unreasonably withheld.
If all the facilities and appurtenances are not removed within one year after the
termination or expiration of the franchise or license or such further time as may be
granted by the city, they shall be forfeited to the city. The city may notify the grantee,
carrier or other person described above that it waives forfeiture and may compel
removal from the public right of way and restoration of the right of way and may
maintain court suit to require such removal and restoration by the grantee, carrier or
other person or the payment of the cost thereof by the grantee, carrier or other
person.
PAGE 17-TELECOMMUNICATIONS ORDINANCE Cp:onlItelecommltelecomm.d-l)
Sections:
16.20.010
16.20.020
16.20.030
16.20.040
16.20.050
16.20.060
16.20.070
16.20.080
16.20.090
16.20.100
16.20.110
16.20.120
16.20.130
16.20.140
16.20.150
16.20.160
16.20.170
16.20.180
16.20.190
16.20.200
16.20.210
Chapter 16.20
Telecommunications Ucense of Franchise
Telecommunications Ucense
Telecommunications Franchise
Application
Application and Review Fee
Determination by the City
Rights Granted
Term of Grant
Ucense Route
Franchise Territory
Compensation to City
Amendment of Grant
Renewal Applications
Renewal Determinations
Obligation to Cure As a Condition of Renewal
Assignments or Transfers of Grant, Notice to City
Transactions Affecting Control of Grant
Revocation or Termination of Grant
Notice and Duty to Cure
Public Hearing
Standards for Revocation or Lesser Sanctions
Other City Costs
16.20.010 Telecommunications Ucense. A telecommunications license shall be
required of any telecommunications carrier who desires to occupy specific public
rights of way of the city identified by the carrier.
16.20.020 Telecommunications Franchise. A telecommunications franchise shall be
required of any telecommunications. carrier who desires to occupy public rights of way
of the city based on geographic areas within the city.
16.20.030 Application. Any person that desires a telecommunications license or
franchise pursuant to this chapter shall file an application with the Finance Department
which shall include the following information:
A. The identity of the applicant, including all affiliates of the applicant doing
business in the State of Oregon.
B. A description of the telecommunications services that are or will be
offered or provided by the applicant over its telecommunications facilities
within the City.
PAGE 18-TELECOMMUNICATIONS ORDINANCE lp:ordItolecommltolecomm.d-l'
".,"1 ....
C. A description of the transmission medium that is being used or will be
used by the applicant to offer or provide such telecommunications
services within the City.
D. Preliminary engineering plans, specifications and a network map of the
facilities to be located within the city, including copies in a computerized
format specified by the city and all in sufficient detail to identify:
1. the location and route requested for applicant's proposed
telecommunications facilities;
2. the location of all aboveground and underground public utility,
telecommunication, cable, water, sewer, storm drainage and other
facilities in the public rights of way along the proposed route;
3. the location(s), if any, for interconnection with the telecommunications
facilities of other telecommunications carriers;
4. the specific trees, structures, improvements, facilities and obstructions,
if any, that applicant proposes to temporarily or permanently remove or
relocate.
E. If applicant is proposing to install aboveground facilities, to the extent that
they will be using utility poles, evidence Electric Utilities Department that
surplus space is available for locating its telecommunications facilities on
existing utility poles along the proposed route; and if surplus space is not
available in some or all service areas, an indication of these locations and
a "make ready" schedule for completion.
F. If the applicant is proposing an underground installation in existing ducts
or conduits within the public rights of way, provide information in
sufficient detail to identify:
1. the excess capacity currently available in such ducts or conduits
before installation of applicant's telecommunications facilities;
2. the excess capacity, if any, that will exist in such ducts or conduits
after installation of applicant's telecommunications facilities.
G. If applicant is proposing an underground installation within new ducts or
conduits to be constructed within the public rights of way:
1. the location proposed for the new ducts or conduits;
2. the excess capacity that will exist in such ducts or conduits after the
installation of applicant's telecommunications facilities.
H. A preliminary construction schedule and completion date.
I. Financial statements prepared in accordance with generally accepted
accounting principles demonstrating the applicant's financial ability to
construct, operate, maintain, relocate and remove the facilities.
PAGE 19-TELECOMMUNICATlONS ORDINANCE Cp:ord\'oI0c0mmI'oI0c0mm.c1-lI
J. Information in sufficient detail to establish the applicant's technical
qualifications, experience and expertise regarding the
telecommunications facilities and services described in the application.
K. Information to establish that the applicant has obtained all other
governmental approvals and permits to construct and operate the
facilities and to offer or provide the telecommunications services
proposed.
L Whether the applicant intends to provide cable service, video dial tone
service or other video programming service, and sufficient information to
determine whether such service is subject to cable franchising.
M. An accurate map showing the location of any existing
telecommunications facilities in the city that applicant intends to use or
lease.
N. A description of the services or facilities that the applicant will offer or
make available to the city and other public, educational and
governmental institutions.
O. As Builts, after completion of initial construction.
P. A description of applicant's access and line extension policies.
a. The area or areas of the city the applicant desires to serve and a
schedule for build-out to the entire franchise area.
R. Such other information as may be requested by the city administrator or
the administrator's designee.
16.20.040 Application and Review Fee.
A. Any applicant for a license or franchise pursuant to this chapter shall pay
an application and review fee in an amount to be determined by
resolution of the city council.
B. The application and review fee shall be deposited with the city as part of
the application filed pursuant to section 16.20.030.
16.20.050 Determination by the city. The city shall issue a written determination
granting or denying the application in whole or in part, applying the standards listed
below. If the application is denied, the written determination shall include the reasons
for denial. The standards to be applied by city are:
A. The financial and technical ability of the applicant.
PAGE 2O-TELECOMMUNICATIONS ORDINANCE Cp:otd\toloconvnltoloconvn.d-ll
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B. The legal ability of the applicant.
C. The capacity of the public rights of way to accommodate the applicant's
proposed facilities.
D. The capacity of the public rights of way to accommodate additional utility
and telecommunications facilities if the license is granted.
E. The damage or disruption, if any, of public or private facilities,
improvements, service, travel or landscaping if the license or franchise is
granted.
F. The public interest in minimizing the cost and disruption of construction
within the public rights of way.
G. The service that applicant will provide to the community and region.
H. The effect, if any, on publiC health, safety and welfare if the license or
franchise is granted.
I. The availability of alternate routes or locations for the proposed facilities.
J. Applicable federal and state telecommunications laws, regulations and
policies.
K. Such other factors as may demonstrate that the grant to use the public
rights of way will serve the community interest.
16.20.060 Rights Granted. No license or franchise granted under this chapter shall
convey any right, title or interest in the publiC rights of way, but shall be deemed a
grant to use and occupy the public rights of way for the limited purposes and term
stated in the license or agreement. Further, no license or franchise shall be construed
as any warranty of title.
16.20.070 Term of Grant. Unless otherwise specified in a license or franchise
agreement, a telecommunications license or franchise granted under this title shall be
in effect for a term of five years.
16.20.080 Ucense Route. A telecommunications license granted under this chapter
shall be limited to a grant to use specific public rights of way and defined portions of
the rights of way.
16.20.090 Franchise Territory. A telecommunications franchise granted under this
chapter shall be limited to the specific geographic area of the city to be served by the
franchise grantee, and the public rights of way necessary to serve such areas.
PAGE 21-TELECOMMUNICATIONS ORDINANCE Cp:ord\teloconmltelecomm.d-ll
16.20.100 Compensation to City. Each license and franchise granted under this
chapter is subject to the city's right, which is expressly reserved, to annually fix a fair
and reasonable compensation to be paid for the privileges granted; provided, nothing
in this chapter shall prohibit the city and a grantee from agreeing to the compensation
to be paid.
16.20.110 Amendment of Grant. Conditions for amending a license or franchise:
A. A new application and grant shall be required of any telecommunications
carrier that desires to extend or locate its telecommunications facilities in
public rights of way of the city which are not included in a license or
franchise previously granted under this title.
B. If ordered by the city to locate or relocate its telecommunications facilities
in public rights of way not included in a previously granted license or
franchise, the city shall grant an amendment without further application.
A new application and grant shall be required of any telecommunications carrier that
desires to provide a service which was not included in a license or franchise previously
granted under this title.
16.20.120 Renewal Applications. A grantee that desires to renew its license or
franchise under this chapter shall, not less than 90 days before expiration of the
current agreement, file an application with the city for renewal of its license or
franchise which shall include the following information:
A. The information required pursuant to section 16.20.030 that has not
previously been provided to the City in connection with grantee's existing
franchise agreement.
B. Any information required pursuant to the license or franchise agreement
between the city and the grantee.
16.20.130 Renewal Determinations. Within 90 days after receiving a complete
application under section 16.20.120, the city shall issue a written determination
granting or denying the renewal application in whole or in part, applying the following
standards. If the renewal application is denied, the written determination shall include
the reasons for non-renewal.
A. The financial and technical ability of the applicant.
B. The legal ability of the applicant.
C. The continuing capacity of the public rights of way to accommodate the
applicant's existing facilities.
PAGE 22-TELECOMMUNICATIONS ORDINANCE (p:ordI'..........I'...........d-lI
" j',
"", . 'f'1
D. The applicant's compliance with the requirements of this title and the
license or franchise agreement.
E. Applicable federal, state and local telecommunications laws, rules and
policies.
F. Such other factors as may demonstrate that the continued grant to use
the public rights of way will serve the community interest.
16.20.140 Obligation to Cure As a Condition of Renewal. No license or franchise shall
be renewed until any ongoing violations or defaults in the grantee's performance of the
agreement, or of the requirements of this title, have been cured, or a plan detailing the
corrective action to be taken by the grantee has been approved by the city.
16.20.150 Assignments or Transfers of Grant, Notice to City.
A. Grantee shall notify the City quarterly of the sale or lease of the capacity,
bandwidth, lit fiber, dark fiber or switching services to any other
telecommunications carrier. Notice, or city approval, prior to the
transaction is not required, so long as grantee remains solely responsible
for carrying out its obligations under its franchise agreement and this
chapter. Transactions between affiliated interests are not exempt from
this notice requirement.
B. Ownership or control of a telecommunications system, license or
franchise may not, directly or indirectly, be transferred, assigned or
disposed of by sale, lease, merger, consolidation or other act of the
grantee, by operation of law or otherwise, without the prior consent of
the city, which consent shall not be unreasonably withheld or delayed,
and then only on such reasonable conditions as may be prescribed in
such consent.
1. Grantee and the proposed assignee or transferee of the grant or
system shall provide and certify the following information to the
city not less than 120 days prior to the proposed date of transfer:
a. Complete information setting forth the nature, terms and
condition of the proposed transfer or assignment;
b. All information required of a telecommunications license or
franchise applicant pursuant this chapter with respect to the
proposed transferee or assignee;
c. Any other information reasonably required by the city.
2. No transfer shall be approved unless the assignee or transferee
has the legal, technical, financial and other requisite qualifications
to own, hold and operate the telecommunications system pursuant
to this title.
PAGE 23-TELECOMMUNICATlONS ORDINANCE (p:onl\.elocomml.elocomm.c1-lI
3. Unless otherwise provided in a license or franchise agreement, the
grantee shall reimburse the city for all direct and indirect fees,
costs, and expenses reasonably incurred by the city in considering
a request to transfer or assign a telecommunications license or
franchise.
4. Any transfer or assignment of a telecommunications grant, system
or integral part of a system without prior approval of the city under
this section or pursuant to a license or franchise agreement shall
be void and is cause for revocation of the grant.
16.20.160 Transactions Affecting Control of Grant. Any transactions which singularly or
collectively result in a change of ten percent or more of the ownership or working
control of the grantee, of the ownership or working control of a telecommunications
license or franchise, of the ownership or working control of affiliated entities having
ownership or working control of the grantee or of a telecommunications system, or of
control of the capacity or bandwidth of grantee's telecommunication system, facilities
or substantial parts of such capacity or bandwidth, shall be considered an assignment
or transfer requiring city approval pursuant to section 16.20.150. Transactions between
affiliated entities are not exempt from city approval.
16.20.170 Revocation or Termination of Grant. A license or franchise to use or occupy
public rights of way of the city may be revoked for the following reasons:
A Construction or operation -in the city or in the public rights of way of the
city without a license or franchise grant of authorization.
B. Construction or operation at an unauthorized location.
C. Unauthorized substantial transfer of control of the grantee.
D. Unauthorized assignment of a license or franchise.
E. Unauthorized sale, assignment or transfer of grantee's franchise or
license assets, or a substantial interest in the franchise or license.
F. Misrepresentation or lack of candor by or on behalf of a grantee in any
application to the city.
G. Abandonment of telecommunications facilities in the public rights of way.
H. Failure to relocate or remove facilities as required in this title.
I. Failure to pay taxes, compensation, fees or costs when and as due the
city.
J. Insolvency or bankruptcy of the grantee.
PAGE 24-TELECOMMUNICATIONS ORDINANCE lp:ord\telecommltelecomm.d-ll
I, ~ ",: '-, " '~,i
K. Violation of a material provision of this title.
L Violation of a material term of a license or franchise agreement.
16.20.180 Notice and Duty to Cure. In the event that the city believes that grounds
exist for revocation of a license or franchise, the city shall give the grantee written
notice of the apparent violation or noncompliance, providing a short and concise
statement of the nature and general facts of the violation or noncompliance, and
providing the grantee a reasonable period of time not exceeding 30 days to furnish
evidence:
A. That corrective action has been, or is being actively and expeditiously
pursued, to remedy the violation or noncompliance.
B. That rebuts the alleged violation or noncompliance.
C. That it would be in the public interest to impose some penalty or sanction
less than revocation.
16.20.190 Public Hearing. In the event that a grantee fails to provide evidence
reasonably satisfactory to the city as provided in section 16.20.180, the city
administrator shall refer the apparent violation or non-compliance to the city council.
The city council shall provide the grantee with notice and a reasonable opportunity to
be heard concerning the matter.
16.20.200 Standards for Revocation or Lesser Sanctions. If persuaded that the grantee
has violated or failed to comply with material provisions of this title, or of a franchise or
license agreement, the city council shall determine whether to revoke the license or
franchise, or to establish some lesser sanction and cure, considering the nature,
circumstances, extent and gravity of the violation as reflected by one or more of the
following factors:
A. Whether the misconduct was egregious.
B. Whether substantial harm resulted.
C. Whether the violation was intentional.
D. Whether there is a history of prior violations of the same or other
requirements.
E. Whether there is a history of overall compliance.
F. Whether the violation was voluntarily disclosed, admitted or cured.
16.20.210 Other City Costs. All grantees shall, within 30 days after written demand,
reimburse the city for all direct and indirect costs and expenses incurred by the city in
PAGE 25-TELECOMMUNICATIONS ORDINANCE lp:onI\lolecommllolecomm.6-lI
connection with any modification, amendment, renewal or transfer of the license or
franchise or any license or franchise agreement.
PAGE 26-TELECOMMUNICATlONS ORDINANCE (p:otd\telecomnltelecomn.d-ll
Sections:
16.24.010
16.24.020
16.24.030
16.24.040
16.24.050
16.24.060
16.24.070
16.24.080
16.24.090
16.24.100
16.24.110
16.24.120
Chapter 16.24
General Ucense and Franchise Terms, Rates
Facilities
Damage to Grantee's Facilities
Duty to Provide Information
Nondiscrimination
Service to the City
Compensation for City Property
Franchise and Ucense Fees
Cable Franchise
Leased Capacity
Grantee Insurance
General Indemnification
Performance Surety
16.24.010 Facilities. Each grantee shall provide the city with an accurate map or maps
certifying the location of all telecommunications facilities within the public rights of way.
Each grantee shall provide updated maps annually including copies in a computerized
format specified by the city.
16.24.020 Damage to Grantee's Facilities. Unless directly and proximately caused by
willful, intentional or malicious acts by the city, the city shall not be liable for any
damage to or loss of any telecommunications facility within the public rights of way of
the city as a result of or in connection with any public works, public improvements,
construction, excavation, grading, filling, or work of any kind in the public rights of way
by or on behalf of the city, or for any consequential losses resulting directly or
indirectly from such work.
16.24.030 Duty to Provide Information. Wrthin ten days of a written request from the
city, each grantee shall furnish the city with information sufficient to demonstrate:
A. That grantee has complied with all requirements of this title.
B. All books, records, maps and other documents, maintained by the
grantee with respect to its facilities within the public rights of way shall be
made available for inspection by the city at reasonable times and
intervals.
16.24.040 Nondiscrimination. A grantee shall make its telecommunications services
available to any customer within its license or franchise area who shall request such
service, without discrimination as to the terms, conditions, rates or charges for
grantee's services; provided, however, that nothing In this chapter shall prohibit a
grantee from making any reasonable classifications among differently situated
customers.
PAGE 27-TELECOMMUNICATlONS ORDINANCE Cp:ord\tol.........\tol..........d-lI
16.24.050 Service to the City. A grantee shall make its telecommunications services
available to the city at its most favorable rate offered at the time of the request
charged to a similar user within Oregon for a similar volume of service, subject to any
of grantee's tariffs or price lists on file with the OPUC. Grantee may deduct the
applicable charges from franchise fee payments. Other terms and conditions of such
services may be specified in a separate agreement between the City and grantee.
16.24.060 Compensation for City Property. If any right is granted, by lease, license,
franchise or other manner, to use and occupy city property for the installation of
telecommunications facilities, the compensation to be paid for such right and use shall
be fixed by the city.
16.24.070 Franchise and Ucense Fees. As compensation for the benefits and
privileges under its franchise or license and in consideration of permission to use the
right-of-way of the City, the grantee shall pay a quarterly franchise fee to the City,
through the duration of its franchise, as follows:
A. The minimum quarterly franchise fee shall be set by resolution of the
council.
B. The franchise fee shall equal a percent of the grantee's gross revenues
derived from grantee's provision of telecommunications services and
telecommunications facilities to retail customers and one percent (1%) on
all other gross revenues derived from grantee's provision of
telecommunications services and telecommunications facilities to
wholesale customers, including other telecommunications carriers. The
amount of the percent shall be set by resolution of the council.
C. The annual franchise fee collectable from a telecommunications utility
shall not exceed the maximum amount under Oregon Law. The city shall
accept from a telecommunications utility, in full payment of the franchise
fee, the maximum amount allowed under Oregon law. On request, the
telecommunications utility must provide documentation to support its
calculation.
D. Grantee shall be "providing" telecommunications services or facilities if it
sells, leases, resells, or otherwise conveys such services or facilities for
consideration.
E. A grantee providing resold telecommunications services or facilities shall
be entitled to a credit against its franchise fee for an amount equal to a
percentage of the price paid for such services or facilities at wholesale.
Such percentage shall be set by resolution of the council.
F. Payment shall be made by each April 25, July 25, October 25 and
January 25 for the quarter just ended.
PAGE 28-TELECOMMUNICATIONS ORDINANCE Cp:ordI'..ocomml'....omm.d-lI
,,;:, ;'.';;"/ "';,.....~.
Any grantee who fails to remit any fee imposed by this chapter within 30 days of the
date it is due, shall pay interest at the rate of one percent (1%) per month or fraction
thereof on the amount of the fee from the date on which the remittance first became
due until paid.
16.24.080 Cable Franchise. Telecommunication carriers providing cable service shall
be subject to the city's cable franchise requirements.
16.24.090 Leased Capacity. A grantee shall have the right, without prior city approval,
to offer or provide capacity or bandwidth to its customers; provided:
A. Grantee shall notify the city that such lease or agreement has been
granted to a customer or lessee.
B. The customer or lessee has complied, to the extent applicable, with the
requirements of this title.
16.24.100 Grantee Insurance. Unless otherwise provided in a license or franchise
agreement, each grantee shall, as a condition of the grant, secure and maintain the
following liability insurance policies insuring both the grantee and the city, and its
elected and appointed officers, officials, agents and employees as coinsured:
A. Comprehensive general liability insurance with limits not less than
$1,000,000 for bodily injury or death to each person; $1,000,000 for
property damage resulting from anyone accident; and, $1,000,000 for all
other types of liability.
B. Automobile liability for owned, non-owned and hired vehicles with a limit
of $1,000,000 for each person and $1,000,000 for each accident.
C. Workers' compensation within statutory limits and employer's liability
insurance with limits of not less than $1,000,000.
D. Comprehensive form premises-operations, explosions and collapse
hazard, underground hazard and products completed hazard with limits
of not less than $1,000,000.
The liability insurance policies required by this section shall be maintained by the
grantee throughout the term of the telecommunications license or franchise, and such
other period of time during which the grantee is operating without a franchise or
license, or is engaged in the removal of its telecommunications facilities. Each such
insurance policy shall contain the following endorsement:
"This policy may not be canceled nor the intention not to renew be stated
until 90 days after receipt by the city, by registered mail, of a written
notice addressed to the city's risk manager of such intent to cancel or
not to renew."
PAGE 29-TELECOMMUNICATlONS ORDINANCE (p:ord\,oI..-nmI'oI..-nm.d-lI
Within 60 days after receipt by the city of such notice, and in no event later than 30
days prior to the cancellation, the grantee shall obtain and furnish to the city evidence
that the grantee meets requirements of this section.
The insurance policy requirements of this section may be met by a program of self-
insurance acceptable to the city.
16.24.110 General Indemnification. Each license or franchise agreement shall include,
to the extent permitted by law, grantee's express undertaking to defend, indemnify and
hold the city and its officers, employees, agents and representatives harmless from
and against any and all damages, losses and expenses, including reasonable
attorney's fees and costs of suit or defense, arising out of, resulting from or alleged to
arise out of or result from the negligent, careless or wrongful acts, omissions, failures
to act or misconduct of the grantee or its affiliates, officers, employees, agents,
contractors or subcontractors in the construction, operation, maintenance, repair or
removal of its telecommunications facilities, and in providing or offering
telecommunications services over the facilities or network, whether such acts or
omissions are authorized, allowed or prohibited by this title or by a grant agreement
made or entered into pursuant to this title.
16.24.120 Performance Surety. Unless the city otherwise specifically approves an
alternative security to assure performance, before a license or franchise granted
pursuant to this title is effective, the grantee shall provide and maintain a performance
bond, in form and substance acceptable to the city, as security for the full and
complete performance of this title, including any costs, expenses, damages or loss the
city pays or incurs because of any failure attributable to the grantee to comply with the
codes, ordinances, rules, regulations or permits of the city.
PAGE 3D-TELECOMMUNICATIONS ORDINANCE (p:ordItolecommltolecomm.d-ll
Sections:
16.28.010
16.28.020
16.28.030
16.28.040
16.28.050
16.28.060
16.28.070
16.28.080
16.28.090
16.28.100
16.28.110
Chapter 16.28
General Provisions
Governing Law
Written Agreement
Nonexclusive Grant
Severability and Preemption
Penalties
Other Remedies
Captions
Compliance with Laws
Consent
Application to Existing Ordinance and Agreements
Confidentiality
16.28.010 Governing Law. Any franchise or license granted under this title is subject to
the provisions of the Constitution arid laws of the United States, and the State of
Oregon and the ordinances and charter of the city.
16.28.020 Written Agreement. No franchise or license shall be granted unless the
agreement is in writing.
16.28.030 Nonexclusive Grant. No franchise or license granted under this title shall
confer any exclusive right, privilege, license or franchise to occupy or use the public
rights of way of the city for delivery of telecommunications services or any other
purposes.
16.28.040 Severability and Preemption. If any chapter, section, subsection, sentence,
clause, phrase, term, provision, condition, covenant or portion of this title is for any
reason 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 the title shall not be affected but shall be deemed as a separate, distinct and
independent provision, and such holding shall not affect the validity of the remaining
portions, and each remaining section, subsection, sentence, clause, phrase, provision,
condition, covenant and portion of this title shall be valid and enforceable to the fullest
extent permitted by law.
In the event that federal or state laws, rules or regulations preempt a provision or limit
the enforceability of a provision of this title, then the provision shall be read to be
preempted to the extent and or the time required by law. In the event such federal or
state law, rules or regulation is subsequently repealed, rescinded, amended or
otherwise changed so that the provision that had been preempted is no longer
preempted, such provision shall return to full force and effect, and shall be binding,
without the requirement of further action on the part of the city.
PAGE 31-TELECOMMUNICATlONS ORDINANCE lP:ordItolecommltolecomm.cl-1J
16.28.050 Penalties. Any person found guilty of violating, disobeying, omitting,
neglecting or refusing to comply with any of the provisions of this title shall be fined
not less than $500.00 for each offense. A separate and distinct offense shall be
deemed committed each day on which a violation occurs.
16.28.060 Other Remedies. Nothing in this title shall be construed as limiting any
judicial remedies that the city may have, at law or in equity, for enforcement of this
title.
16.28.070 Captions. The captions to sections throughout this title are intended solely
to facilitate reading and reference to the sections and provisions. Such captions shall
not affect the meaning or interpretation of this title.
16.28.080 Compliance with Laws. Any grantee under this title shall comply with all
federal and state laws and regulations, including regulations of any administrative
agency, as well as all ordinances, resolutions, rules and regulations of the city now in
effect or adopted in the future or established during the entire term of any franchise or
license granted under this title, which are relevant and relate to the construction,
maintenance and operation of a telecommunications system.
16.28.090 Consent. Wherever the consent of either the city or of the grantees under
this title is specifically required in a franchise or license granted, such consent will not
be unreasonably withheld.
16.28.100 Application to Existing Ordinance and Agreements. To the extent that this.
title is not in conflict with and can be implemented with existing ordinance and
franchise agreements, this title shall apply to all existing ordinance and franchise
agreements for use of the public right of way for telecommunications.
16.28.110 Confidentiality. The city agrees to use its best efforts to preserve the
confidentiality of information designated by the grantee as a trade secret, to the extent
permitted by the Oregon Public Records Law.
PAGE 32-TELECOMMUNICATlONS ORDINANCE lp:ord\tol........ltol.........d-lI
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CITY OF ASHLAND
Department of Public Works
~
Public Works Administration
MEMORANDUM
DATE:
January 20, 1998
TO:
Honorable Mayor and Members of the City Council
. FROM:
Paula C. Brown, PE; Public Works Director / City Engineer
RE:
FUTURE WATER DECISIONS
As we prepare for discussion regarding the future of Ashland's water supply, I have prepared several issue papers that
are attached:
I) Future Water Source Possibilities
2) Talent-Ashland-Phoenix (T AP)Water Intertie
3) Talent Irrigation District (TID)Agreements
4) Treated Water Sununary (table and graphs)
I believe these issue papers address the majority of the questions raised during recent discussions surrounding the
decision tojoin the TAP Water Intertie project with the cities of Talent and Phoenix. I am also sure that many more
questions will be addressed at the Water Forum on January 27th.
In discussions with community members, growth seems to be the primary concern surrounding the decision of whether
or not to join in the TAP Project. As City Engineer, my main concern is to bring to your attention the need for
additional water supply. The Ashland watershed is a good source of water. Our water treatment plant and operational
capabilities are excellent. I would not advocate giving up either one of these resources. However, although the water
treatment plant can treat up to 12 million gallons a day, Ashland Creek often runs at only 5 cubic feet per minute in
the late sununer months. This is only 3.2 million gallons a day when our demand is nearly 6 million gallons a day.
During extreme drought years, we carulOt supply the City's needs from Ashland Creek alone. If we can not draw from
the Till system during late sununer and fall, we will not have enough water for Ashland's population today, let alone
the population of tomorrow. Based upon the 1989 R. W. Beck report, these extreme drought years are projected once
every 50 years based on current demand and water supplies.
Emergency water use for Ashland has also been a concern. The New Year's Flood brought this to mind. Although
having an additional source of water from Medford might not have solved all of the problems with internal water
distribution lines, it would have provided the City with another option and with perhaps water to a portion of the City
as repairs to main lines were completed. Should fIre compound a natural disaster in the future, connection to the TAP
Intertie would have at least provided us with water within the City limits.
'.
FUTURE WATER SOURCE POSSIBILITIES
Background
Water issues are not new to the City of Ashland. For as long as the City has been incorporated,
discussions regarding water, water rights, water storage, and water use have taken place.
Actions over the past 10 years, have enabled the City of Ashland to address adequate water storage
capability (addition of Alsing Reservoir off Tolman Creek and the Strawberry (Fallon) Reservoir off
Hitt Road), manageable pressures, and appropriate system "loops" with the additional line to the
Airport and off the Strawberry Reservoir. The City Council has continued discussions with the
Medford Water Commission for a transmission pipeline, and with Talent Irrigation District for water
delivery agreements.
Ashland has looked at several different options for water supply possibilities. The 1989 R. W. Beck
Report offered three alternatives:
1) Winburn Dam: Build a 100-110 foot structure to capture 630 to 800 acre feet of water.
2) Rogue River Water: Pipeline from Medford at Lost Creek directly to Ashland for
further treatment and use. .
3) Water Conservation: The Beck report offered this as the "no action" alternative and
explained this as a delay measure in obtaining future water supply.
The City Council chose not to adopt the R. W. Beck Report and commissioned a Water Demand-
Side Resource Study to be completed through the Conservation Department. This report was
completed by Syoergic Resources Corporation, and adopted by the City Council in April 1992.
Since then several successful conservation measures were implemented. Current highlights from the
conservation programs were completed as a separate report from Dick Wanderscheid.
Current Options
More recent discussions have offered the following possibilities for additional water sources:
1) Piping the Talent Irrigation District (TID) Canal System: This option offers the
possibility of piping the TID canals from the Greensprings power plant to the Ashland Water
Treatment Plant. The objective is to pipe the ditch to avoid direct loses from the TID
canal/ditch system. Losses through the canal have been estimated at between 30 and 60%
(TID and the Bureau of Reclamation are completing a loss analysis study this year). Should a
significant amount of water be saved through piping the canal system, then there is less
demand thus saving water in the overall system and requiring less through the pipeline.
Piping (construction costs only) the canal is anticipated to be a minimum of $4 million (based
upon 5.5 miles of pipeline with a 24 inch pipe at $130/ft) plus engineering and permitting, for
a total of approximately $5 million. This estimate does not include any easement costs or
contingencies. Any water through the pipeline would need to be treated at the Water
Treatment Plant for domestic potable water use. This pipeline could also allow delivery
outside of the irrigation season if current contract negotiations allow for this option.
2) Intertie Pipeline with Talent and Phoenix to the Medford Water Commission:
This option links the three cities with the Medford Water Commission and brings water from
their water treatment transmission line off Belknap Road and Highway 99 in. South Medford.
The project would bring water through to the City of Talent. Ashland would then have the
option of building a connecting pipeline to bring water into the City of Ashland. The total
'.
~
cost to realize the full project benefits and bring treated potable water to Ashland would be
$5-7 million and is further discussed in the attached "Talent - Ashland - Phoenix (TAP)
Water Intertie" discussion.
Unknowns and Areas of Concern
There are several other factors that could significantly influence future water decisions. The
probabilities of these events happening are unknown, but are worthy of discussion as it applies to the
future of to day's Ashland population and the Ashland of tomorrow.
1) Klamath Indian Claim on Howard and Hyatt Prairie Water: There have been discussions
that the Klamath Indian Tribes will lay claim to a portion of the HyattIHoward Prairie (direct impacts
to Emigrant Lake) waters. Although there are mixed feelings as to whether or not this will come to
fruition, the possibility of a reduced water allocation from the TID system must be considered.
2) Drought Conditions: Drought is a factor that influences the amount of water available in
Emigrant Lake and hence through the TID System. During drought years and even some hot dry
years that are not specifically "drought years", Ashland Creek is not able to supply the needs or
demands of Ashland residents. The lowest flows in Ashland Creek are in September and October,
and sometimes into November depending upon rainfall amounts. During significant drought years,
when Ashland would need the water most from the TID System, it is not available, or is not fully
available (1994?). During drought years, ifTID closes the irrigation season early (prior to October
1) due to lack of water in the Lake, flows will not be available to the City for needed domestic water
augmentation.
,
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3) Fire I Forest Fire Concerns: Fire has been an often raised question with regard to future water
needs. Generally the total quantity of water used for fire fighting is quite small, but the demand rate
(amount needed in a short period oftime) can be comparatively quite high. The American Insurance
Associate has provided guidelines for fire flow needs based upon population. For a population of
19,000 the recommended fire flow capability is 4,250 gallons per minute, with a total capability of
6.1 million gallons per day. The reserve storage recommendation for fire flow for Ashland's current
population of 18,560 is 2.6 million gallons. This will enable fire fighting for a 10 hour duration. Our
current storage capability in all four holding reservoirs is 6.9 million gallons with an average use of
just under 3 million gallons per day. However, our summer peak daily use is approximately 5.3
million gallons per day, which limits our fire reserve capabilities. We need to evaluate the size and
placement of additional storage reservoirs.
Minimum six inch lines are recommended for fire fighting capabilities for a city our size. Our water
line capacity, both as a looped system and manageable water pressures, is getting better all the time.
Although we still have a few 4 inch lines, our looped system can better handle fire fighting demand.
As we replace main lines, our minimum line size has increased to 8 inches.
A forest fire in the forest interface area would be devastating. Should a fire start in the watershed,
we will have little to no means of combating it with water other than direct pumping from either the
reservoir or the stream. However, if there is a forest fire in the interface area, the result would be
long tern erosion and significant damage to the reservoir area. The current practice of cutting out
and eliminating dead or dying brush is our best defense.
Water Forum Infonnation to Council- January 20, 1998
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TALENT - ASHLAND-PHOENIX (TAP) WATER INTERTIE
WITH THE MEDFORD WATER COMMISSION
Background
This project began over two years ago with the need to bring water to the City of Talent.
Talent's water sources, Bear Creek, and Wagner Creek with augment from the Talent Irrigation
District, and their water treatment plant were in poor shape. The City of Talent was looking for
an alternate water source. At the same time, the City of Phoenix was facing future water
concerns as their existing water transmission line from the Medford Water Commission was
reaching capacity. Phoenix decided to join in discussions with Talent to explore future water
opportunities. The City of Ashland was invited and joined in the discussions since water in
general, and more specifically additional water sources, has been a topic of discussion since prior
to the the 1989 R.W. Beck Water Study.
The City of Ashland, along with both Phoenix and Talent, contracted with the Rogue Valley
Council ofGovemments for project coordination between them and the Medford Water
Commission. An engineering firm (Lee Engineering out of Oregon City) was hired to prepare a
feasibility study to determine the practicability of the project, to provide pipeline route
alternatives, cost estimates and preliminary engineering. Lee Engineering was later hired to
complete an environmental analysis/report for the preferred route. Based upon Lee Engineering's
recommendation, the TAP Committee chose the Southern Pacific Railroad alignment as the
preferred alternative. The Feasibility Report and Preliminary Design were completed in August
1997 and the preliminary Environmental Report was completed in November 1997. Currently the
Environmental Report is being reviewed by various state and federal agencies, as well as potential
funding agencies. The review is anticipated to be completed in February 1998.
Line Size Analysis #~&
The decision has been made by the TAP Committee to bring the water transmission line from e.
Medford's facilities in White City, along the railroad right of way, to Phoenix with a 24 inch lin~
and on to Talent with either an 18 inch or a 24 inch line, depending upon Ashland's needs. /'~'7j~O, ~
The TAP Committee and Lee Engineering have sized the line for 100% of peak daily demand for CDS.
both the cities of Phoenix and Talent through the year 2050, and for an additional amount that
would provide 25% of the average daily demand for Ashland based on a projected population
figure of29,800 in the year 2050 (a little over 1 million gallons per day). The 25% figure is based
upon Ashland's water treatment plant providing the majority of the City's water needs and the
difference due to drought conditions, peak flow water demands, emergency use, or other water
needs for the City. With Ashland participating in the project at these flow or usage amounts, the
line would need to be sized at 24 inches. Should Ashland chose not to participate, the line could
be sized at 18 inches (from Phoenix to Talent) to accolMlOdate Talent's needs only.
Cost Impacts
Lee Engineering recently updated their August 1997 figures to reflect a December 1998
construction start. The total TAP Intertie cost, including the up sized line for Ashland is
approximately $6,335,000.
In the Feasibility Report, Lee Engineering was responsible for making a determination on cost
responsibilities for each City. Lee Engineering used a formula to determine the splits based upon
the amount of flow in each segment of pipe (Medford to Phoenix in the 24 inch pipe, and from
Phoenix to Talent in either a 24 inch pipe to include Ashland's flow or in an 18 inch pipe
excluding Ashland). There was an additional amount in the formula for the necessary pump
stations and other items. Based upon this formula, Ashland's total "flow based" share is
approximately $1,133,300.
Another option is that Ashland participate by paying only the cost of the incremental increase of
pipe size. There may be some additional cost attributable to Ashland for increasing the pumping.
The calculated incremental is approximately $613,000 (direct differential cost of$533,000 plus
15%). This could be offered to Talent and Phoenix with an agreement to pay the remainder of the
differential flow based costs (approximately $520,300 plus interest) if Ashland ties into the system
in the future. Paying the incremental cost now would allow Ashland to participate in the
construction of the transmission line. .
Pipeline from Talent to Ashland
Increasing the size of the line to Talent is not the final step in receiving additional water from the
Medford Water Commission. Ashland would still need to construct an 18 inch line from Talent to
Ashland (Ashland Mine Road), install a pump station, and some type of in line chlorinator to
maintain the required chlorine residual. The water could be connected directly to our existing
system under pressure without going to the treatment plant. The total distance between Talent
and Ashland for the water connection is under 3 miles. Roughly, the cost to complete the
remainder of the project (1998 dollars) is 5 to 6 million dollars; approximately $2 million for the
pipeline, $1.5 to 2 million for the chlorine dosing and the pump station, $500,000 for engineering
and easements and $500,000 for contingencies. There would also be costs for "buying in" to the
Medford Water Commission's treatment plant (equivalent Systems Development Costs, SDCs),
and the purchase of Lost Creek Water rights at an estimated total cost of $700,000. This is an
extremely rough estimate and could vary depending upon site conditions. Using the outside
. figure of $6 million is conservative.
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..
Total Project Costs
In today's dollars, the cost to Ashland for developing this system is approximately $7 million.
Current Status of the TAP Project
The Cities of Talent and Phoenix have moved ahead and have submitted a request for funding to
the Rural Development Agency (RDA). Both Cities will allow Ashland to petition the process for
inclusion as long as the project is in design and that any cost for change in design is borne by the
City of Ashland and will not impact the funding for either the City of Talent or Phoenix. If the
City of Ashland makes a decision in February to join the TAP Intertie, there should be no
additional costs incurred. Ashland is not eligible for any grant funding for this project by RDA.
Water Forum Information to Council- January 20, 1998
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TID AGREEMENTS
Background:
The City of Ashland has four agreements or contracts with the Talent Irrigation District (District,
or Till).
1) 1924 Agreement: Authorizes the purchase of600 acre-feet of water per year
deliverable during the irrigation season (not explicitly defined in this agreement). These
rights are perpetual (year after year) purchased annually. Costs initially were dependent
on the construction costs of Emigrant Dam. The City has since completed paying for the
cost to initially purchase the water and continues to pay for the operation and maintenance
cost of the water used (as adjusted by the 1926 Agreement). The water purchased under
this agreement (as clarified in the 1926 agreement) is a "stored water" right, and
authorizes the City to store, and through contract later use, the water behind Emigrant
Dam. It is "... understood and agreed that in case of a shortage of water in the systems
of the District, then and in that event. the City shall only be entitled to its pro rata share
during the period of such shortage." No restrictions are placed on the use of the water
within City limits. However, the District Board of Directors regulates the use of the water
right.
2) 1926 Agreement: Authorizes the purchase of200 acre-feet of water per year,
deliverable to a point at the City limits, during the irrigation season (H... at the time the
District commences to deliver water to its own users and members to October 1st, of each
year...."). The City paid $21,540.00 for this water purchase, and agreed to pay annual
operations and maintenance fees for the water used. The water purchased under this
agreement (and also clarified for the 1924 Agreement) is a "stored water" right, and
authorizes the City to store, and through contract later use, the water behind Emigrant
Dam. The "stored water" clarification was with the intent that the City has no desire to
use the water until later in the summer and early fall so that the District would be able to
hold the water and release upon request to the City. In addition, the agreement stipulates
that delivery of the water is subject to the capacity ofthe District's ditches, and that the
City would be "reasonable in its demands respecting delivery of said water." It is further
"... understood and agreed that in case ofa shortage of water in the systems of the
District. then and in that event. the City shall only be entitled to its pro rata share during
the period of such shortage." No restrictions are placed on the use of the water within
City limits. However, the District Board of Directors regulates the use of the water right.
3) The 1935 Agreement (signed May 15,1935): This agreement returns 31 acre-feet
of water to the District. It appears that this was water to be utilized on the old Croman,
LTM and State Forest Service site off Mistletoe Road, and was the responsibility of those
owners, not for City oversite.
4) 1966 Agreement (signed June 21,1966): This agreement is for delivery of795
acre-feet of water through the District's AsWand Canal. This is the only agreement with
the District that includes the United States Bureau of Reclamation in language regarding
.'
water rights and refers to "...said Bureau of Reclamation has agreed to make available to
District waters from its Talent Project of its Rogue River basin Project for the irrigation
of lands within District and supplemental waters for the irrigation of lands heretofore
irrigated within District..." Payment for this water was made based upon the Districts
assessment value on 300 acres ofland (based upon applying 2.65 acre feet of water to
each acre ofland), and payments to include operations and maintenance costs and other
payment to the United States (based on prior agreements between District and the BOR).
This agreement included a provision that if waters were not available, that the City's
portion would be reduced as any other user of the District's irrigation system based upon
available waters for 300 acres. Restrictions on the water included delivery during the
irrigation season ("which normally is from April 15 to October 1 of each year"), that the
City shall not permit the use of water delivered to it for any other purposes than domestic
-- and irrigation purposes, and likewise, could not sell the water for any other purpose
including for use outside the corporate boundaries of the City. No additional stored rights
were granted through this agreement. The term of this agreement is 30 years beginning on
January 1, 1967, "... andfor year to year thereafter unless canceled or terminated by
either party upon one (1) year written notice of termination." The City, however,
received "priority for water storage and use..." from prior agreements and by agreement
through the Department of the Interior and its Bureau of Reclamation dated August 27,
1956.
To summarize, the City has a total of769 acre feet of "perpetual" stored water rights, and an
additional 795 acre feet of water under a transport agreement form TID with certain restrictions
on use.
Current Activity:
We are currently under an extension of the 1966 Agreement with TID. Renegotiations are
underway for the 1966 agreement. City staff and District staff and their legal representatives have
made strides in language for the final agreement. The subsequent agreement will hopefully allow
the City to utilize the water during other than normally specified irrigation season times (with
additional costs). It appears that we will be able to reach an equitable agreement.
Water Forum Information to Council - January 20, 1998
City of Ashland
Treated Water Summary
year Population % Water Metered System per capita
mcrease production Sales Losses Losses usage (gpcd)
(mg) (mg) (mg) produced metered
1978 14,375 1,094 726 368 33.64% 209 138
1979 14,725 2.43% 1,155 694 461 39.91% 215 129
1980 14,946 1.50% 1,233 831 402 32.60% 226 152
1981 15,230 1.90% 1,182 853 329 27.83% 213 153
1982 15,180 -0.33% 1,100 805 295 26.82% 199 145
1983 15,360 1.19% 1,112 711 401 36.06% 198 127
1984 15,600 1.56% 1,068 779 289 27.06% 188 137
1985 15,860 1.67% 1,336 829 507 37.95% 231 143
1986 15,855 -0.03% 1,221 883 338 27.68% 211 153
1987 16,010 0.98% 1,263 993 270 21.3 8% 216 170
1988 16,310 1.87% 1,147 899 248 21.60% 193 151
1989 16,740 2.64% 1,105 1,055 50 questionable data
1990 16,252 -2.92% 1,240 1,335 -95 questionable data
1991 17,060 4.97% 1,208 1,017 191 15.79% 194 163
1992 17,320 1.52% 1,162 1,200 -38 questionable data
1993 17,445 0.72% 1,135 948 187 16.44% 178 149
1994 17,725 1.61% 1,183 1,036 147 12.43% 183 160
1995 17,985 1.47% 1,082 877 205 18.97% 165 134
1996 18,360 2.09% 1,143 1,031 112 9.82% 171 154
1997 18,560 1. 09% 1,061 993 68 6.38% 157 147
average increase 1.36% average 147
MEMORANDUM
CITY OF ASHLAND
Department of Community Development
Conservation Division
DATE:
January 16, 1998
FROM:
Mayor and City C~
Dick Wanderschei~
TO:
RE:
COMMUNITY FORUM ON ASHLAND'S FUTURE WATER SUPPLY
As part of the process of trying to get citizen input on preferences for Ashland's future water supply options, we are sponsoring
a "Community Forum on Ashland's Future Water Supply". This forum will be held at 7:30 p.m. on Tuesday, January 27, 1998
in the Britt Ballroom at Southern Oregon University. There will be a showing of a background video produced by RVTV and
short staff presentations, followed by small group discussions facilitated by two professional facilitators. The purpose of the
small group discussion will be to frame the issues involved in making decisions about Ashland's water supply alternatives.
A report will be prepared for you following the forum, but it is hoped you will attend to hear citizen concerns first hand. We
will be urging interested citizens to view the Council Study Session at 12:30 p.m. on Wednesday, January 21, 1998, which
will be shown live by RVTV on Cable Channel 30, so they will be aware of some of the issues prior to the forum.
Also, there will be a live call-in show at 7:00 p.m. on Thursday, January 29, 1998 on RVTV Channel 9, which will have the
facilitators, staff and an elected official discussing the Forum and the issues raised. All this will help prepare citizens to be
able to provide meaningful input to the Council public hearing scheduled for Tuesday, February 3, 1998 on Ashland's continued
participation in the Phoenix/T alent Waterline Project.
In summary, the schedule for this decision is as follows:
. Council Study Session (live on channel 30) >> 12:30 p.m. - January 21, 1998
. Community Forum on Ashland's Future Water Supply (SOU Britt Ballroom) >> 7:30 p.m. - January 27, 1998
. Call.in TV Show (live on Channel 9) >> 7:00-8:00 p.m. . January 29, 1998
. Public Hearing on the Continued Participation in T alentlPhoenix Water Project at the Regular City Council Meeting
>> 7:00 p.m. - February 3, 1998
. Council Decision could take place on February 3, 1998 or continued to the Regular City Council Meeting on
February 17, 1998
;;.:
MEMORANDUM
CITY OF ASHLAND
Department of Community Development
Conservation Division
-'
DATE:
January 13, 1998
TO:
Mayor and City Council
Dick Wanderschei@
CONSERVATION STATUS REPORT
FROM:
RE:
BACKGROUND
The City of Ashland has been evaluating various water supply options since 1989 when R.W. Beck was
commissioned to study the need for a new water supply and potential sources to meet this new supply. It
equated water conservation to water rationing and dismissed it as a serious option to meet future supply.. It
identified two possible new water supply options - Winburn Dam, which would be constructed about two
miles upstream from Hosler Dam on the west fork of Ashland Creek, and a pipeline to the Rogue River which
could bring Lost Creek Reservoir/Rogue River water to the City. At the time of the study in 1989, Winburn
Dam was estimated to cost $11,000,000 and the Rogue River pipeline was estimated at $7,700,000. The
estimated cost of Winburn Dam equalled about $2.80/100 cubic feet of water, which was four times the retail
rate of $.70/100 cubic feet at that time.
Due to the high capital costs of both options and the fact that the Beck Report had not seriously studied the
potential for water conservation as a source of new water, staff wrote a memo to the Council seeking
permission to commission a study of our demand side resources. Council agreed and money was allocated in
FY 91-92. As a result, Synergic Resources Corporation (SRC) prepared the study in July of 1991. This study
identified several conservation program areas which would provide at least 500,000 gallons of water/day, which
was equivalent to Winburn Dam and which provided 560,000 gallons of water/day. However, the important
distinction was that in using SRC's numbers, the total cost in April 1992 for all these demand side programs,
was $825,875. This was a mere fraction of the new supply options identified, which by then, due to inflation,
had increased to $8.4 million for the pipeline and nearly $12 million for Winburn Dam. The study found "that
implementing conservation activities can increase the time horizon when a new supply source is needed from
about ten years to closer to 15 years, and perhaps even past 2021." The report was adopted unanimously by
the Council in April 1992. Implementation of the program was begun in July 1992, when FY 92-93 funding
became available.
"
Both the Beck report and the SRC report used a planning assumption that our water system should have a 98 %
probability of meeting annual water demands. This means that water curtailment would only have to occur
once every SO years. This system reliability standard is commonly used throughout the water industry in the
United States in planning for long term water supply.
Since that time, the Cities of Talent and Phoenix have been actively involved in extending a water line from
. the Medford Water Commission service territory to the City of Talent. Ashland has been active in discussing
this project and has to decide soon if we want to increase the pipe size from 18 inches to 24 inches from
Phoenix to Talent. This would enable the City to, at some future date, construct a water line to Talent and
thus be able to bring Lost Creek Reservoir water from Talent to serve Ashland. Since this decision to upsize
this line needs to be made shortly, the Council requested that Ashland's future water supply options be the
subject of the Council Study Session in January. It also requested an update on any changing conditions which
have occurred since adoption of the SRC Report and a progress report on conservation implementations. That
is the purpose of this memo.
POPULATION
Both the Beck Report from 1989 and the SRC Report from 1992 use population estimates in their analysis of
Ashland's water situation. The Beck Report relied on information in the 1981 Comprehensive Plan, with
downward adjustments for actual population increases compared to the estimated. The Comprehensive Plan
estimated an approximate 2% annual growth rate, and was adjusted down to approximately 1.75% annual
growth rate. The SRC Report used the revised population analysis of the 1990 Population Element update
incorporating the modified estimates. As a matter of comparison, the Beck Report estimated the population
of Ashland in the year 2000 would be 20,000, while the current Comprehensive Plan and SRC Report estimated
it would be about 19,000.
Ashland's population was 17,985 in 1995. This compares to 18,005 as projected in the Comprehensive Plan
and SRC Report. This shows that our actual population increases are tracking well with the current
Comprehensive Plan and SRC Report estimates. In fact, it appears we are growing at a somewhat slower rate
than even the 1990 Population Element update expected.
Given current trends, building activity, etc., it is expected the current population trends will continue, tracking
very closely to those currently estimated in the Ashland Comprehensive Plan. Therefore, the population
estimates used in the SRC Report still provide a valid basis for the water demand assumptions.
CONSERVATION PROGRAMS. ACTIVITIES. AND IMPLEMENTATION PROGRAMS AND
ACTIVITIES
The SRC Report identified a number of activities which, if pursued, could achieve savings equivalent to
Winburn Dam or about 500,000 gallons of water/day. All these areas have been addressed and we are making
significant progress' in each area. These areas are as follows:
Incentive Based Water Rates - With completion of the Hilton, Frankopf and Hobson Water and Sewer
Rate Study and subsequent adoption of our new water and sewer rate schedules, this activity has been
completed. Water and sewer rates now clearly provide disincentives for water waste and encourage
people to pursue water use efficiency.
Mayor and City Council Memo
Conservation Status Report
2
Plumbing Code Support - With adoption of Oregon's statewide plumbing code, which requires water
efficient showerheads and toilets in new construction, this activity has been completed. Building and
Conservation Staffs are enforcing this requirement in new construction in AsWand.
Densitv Bonuses - When the report was completed, our Performance Standards Ordinance allowed for
density bonuses for energy efficient new construction. This ordinance has been modified to now include
water use efficiency bonuses.
Showerhead Retrofit - In July of 1992, we began our water auditing program. As part of this process,
existing showerhead flow rates are measured and, if warranted, new showerheads are installed during
the audit. BPA's and OMECA's Appliance Efficiency Programs provided funding for showerhead
replacement in homes with electric water heating through September 30, 1997. The Water Utility funds
the costs not covered by the Electric Utility Program.
Large Customer Audits - This area has received a lot of attention and continues to be an area that we
address whenever an opportune time arises. Currently, we have worked with the school district and
Southern Oregon University, and have audited the majority of their facilities. Nearly all the lodging
and restaurant industries have been audited and retrofitted.
Public Information and Education - This area has received a lot of attention and continues to be an area
that we address whenever an opportune time arises. Staff has made presentations in the schools, at
various civic organizations and service groups,and talked to all the media about water use efficiency.
This activity will continue to be an ongoing activity.
Landscape Rel!Ulation - We have and continue to work in this area as time permits. We have gathered
data from various California cities and have copies of numerous landscape regulations. We are a
member of the Southern Oregon Landscape Association and have provided free training seminars on
landscaping to AsWand citizens. We have met with a group of Rogue Valley landscape architectural
firms and also discussed ways to proceed in this area. Our hope is to develop draft landscape
regulations for review by various City commissions, landscape associations, professionals and installers.
Toilet Rebate - Our water auditing program publicizes the availability of toilet rebates to citizens who
replace their toilets with ultra low-flow toilets. When the program began, we paid $75 rebates. In July
1993,this rebate was lowered to $60 for the first toilet, $50 for the second and $40 for each additional
replacement per residence. In July 1997, these were reduced again to $50, $40 and $30. These rebate
levels have been reduced because the price of ULF units have continued to decline since the program's
inception.
Leak Detection - The City began a system leak detection and repair prognim in 1993 and continues to
budget for and implement this activity on an ongoing basis.
As you can see, significant progress has been made in all areas identified by SRC in the report adopted by the
Council in 1992.
Mavor and City Council Memo
Conservation Status Report
3
"
NEW PROGRAM
One new water use efficiency program has been implemented that was not identified by the SRC Report. This
is the horizontal axis or water efficient clothes washing machine program. This technology has been in use
in Europe for years and virtually all machines there utilize this technology. Until 1997, no American
manufacturers had offered these types of machines. However, now both Frigidaire and May tag are selling
these types of washing machines. They use 60% less energy, 40% less water and significantly less amounts
of detergent. Frigidaire estimates that a typical family of four can save at least 10,000 gallonS of water per
year by using this type of machine.
BPA approved OMECA's use of BPA funding for incentives for this program in 1996. We started this
program in early 1997 and offered $125 rebates funded by BPA for customers with electric water heating for
their electricity savings. The City added a $75 water utility rebate, so rebates for gas water heaters are $75
and electric water heater rebates are $200. In addition, BPA and the region's investor-owned utilities are
funding an additional $130 rebate to the dealers of these machines to help speed acceptance of this technology
in the marketplace. This rebate is scheduled to decrease to $75 this spring and continue until at least the end
of 1998.
Also, the Oregon Legislature passed an Oregon tax credit bill which included a tax credit for these machines
in the last legislative session. These tax credits are somewhere between $145-275, depending on the type of
machine purchased.
All this action means the cost of purchasing these machines are now nearly as low as top-of-the-line
conventional washing machines, and hence, they are being purchased by more and more people. We expect
this trend to continue because the machines, in addition to being very water and energy efficient, also provide
gentler and superior clothes washing abilities than top loading machines. As more and more are purchased and
great volumes are produced, prices should continue to decline. This will also increase penetration of this
technology into the marketplace.
CONSERVATION PROGRAM ACOUISITION SAVINGS ANDTIMELINE
In 1993, after the adoption of the SRC Report, Staff presented to City Council a ten year implementation
schedule for the SRC recommendations. A little over half way into this schedule, we have acquired a
significant amount of the target savings and feel that by 2003, our goal of achieving at least 500,000 gallons
of conservation water savings will no doubt be completed and easily surpassed by a substantial amount. Table
I is our best estimate of conservation program results as of December 31, 1997. Since we have used very
conservative estimates for all programs, we feel this table represents the minimum amounts of saved water,
and actual program results are probably higher. As you can see from this table, we estimate we have saved
at least 413,857 gallons daily. This is 82.77% of the targeted total of 500,000 gallons/day identified by SRC.
WATER CONSERVATION PROGRAM COSTS
As pointed out earlier in this memo, when the SRC report was adopted in 1992, we had estimated that
conservation program costs would be $825,875. These were the program cost estimates used by SRC to
determine the cost effectiveness of conservation as compared to new supply. I have attempted to estimate
program costs to measure how we are comparing to the initial numbers.
Mayor and City Council Memo
Conservation Status Report
4
"
Water Conservation Program Costs
Julv 1992 through June 1998
~
~
~
~
~
Actual Water Conservation Budget Expenditures (FY 92-93 to FY 96-97) 5 years
FY 97-98 Approved Budget. . . . , . . . . . , . . . . . . . . . . . . . . . . . . . . . ,
20% Additional Administration for Conservation Manager Time ($406,316 x .2)
Ih cost of Hilton, Frankopf, Hobson Water Rate Study ................
System Leak Detection (6 years - 96.8 miles tested) , , . . . , . . . . . . . . . . . . . . .
= $312,316
= 94,000
= 81,263
= 12,500
= 22.605
$522,657
This budget accounts for six years, or 60% of the ten year implementation schedule. Since estimated program
costs were $825,875 in 1992, we will have spent 63.3% ($522,657/$825,875) of the total estimated cost by
June 30, 1998. However, since we have achieved over 82% of targeted savings, program expenses are very
close to initial projections and definitely much cheaper than the supply alternatives considered by R.W. Beck
in 1989.
WATER DEMAND ANALYSIS
While we have projected annual water savings of 91,657,805 gallons of water per year, it is necessary to look
at actual water demand since the beginning of aggressive conservation programs in 1992. The FY 97-98 budget
includes a graph which has been included with this memo as Graph 1. It shows that in FY 91-92, we had
5,890 total water meters and total water sales were 1,408,930,000 gallons of water. The water conservation
program started in July of 1992 and its effect on water demand has been noticeable. In FY 96-97, total water
meters increased to 6,388, for an increase of 498 or 8.5%. Water demand in FY 96-97 was 1,307,646,000
gallons of water, which is 101,284,000 gallons, or 7.2% less than FY 91-92.
CONCLUSIONS
The City of Ashland's demand side water reduction programs are showing excellent progress and we are still
on track with the implementation schedule presented to the Council in 1993. Per capita water consumption
continues it's downward trend and our ongoing leak detection and repair, and water line replacement programs
have resulted in a distribution system that is in fme shape with minimal leakage. Promising new conservation
technologies like the horizontal axis washing machine program are implemented when they show good potential.
The Council should be commended for a pro-active approach to this issue. Ashland has once again forged a
leadership role, which has already been looked at by other utilities as they struggle with meeting growing
demands for water.
I will be at the Council Study Session and make a presentation of this memo, but as always, feel free to give
any of us a call at 488-5306 prior to the meeting if you have questions or want to discuss this in more detail.
Mavor and Citv Council Memo
Conservation Status Report
5
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GRAPH 1
Water Sales and Accounts
90-1 91-2 92-3 93-4 94-5 95~6 96-7 97-8
Fiscal Year
1- Water Sold -+- Accounts
Source: 1997.98 City of Ashland Budget
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