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City of Independence Agenda

Regular Council Meeting

Tuesday, February 14, 2017

Council Chambers, Civic Center

Page

1. CALL TO ORDER - WORK SESSION (Event Center)

Note: This is a Work Session of the City Council. The general public is invited to attend and view the meeting; typically, no public input or comment will be received.

2. PRE-COUNCIL WORK SESSION 2.1. Staff Retreat Report (Staff: Clyne) 2.2. Council Tablet Policy (Staff: Kistler) 2.3. Natural Hazard Mitigation Plan (Staff: Irvine) 2.4. Falls City IGA (Staff: Clyne)

Falls City Proposal

3

2.5. Sanctuary Cities (Staff: Clyne) 3. ADJOURN WORKSESSION

1. CALL TO ORDER: REGULAR MEETING: 2. ROLL CALL 3. MINUTES 3.1.

January 10, 2017 Regular Session

January 24, 2017 Regular Session

5 - 17

4. VISITORS/PUBLIC COMMENTS 5. REPORTS/PRESENTATIONS 5.1. Mayor 5.2. City Manager / Staff 6. UNFINISHED BUSINESS 6.1. Council Bill #2017-04, Vacating a Portion of Thorpe Street

(Staff: Danko) StaffMemo.CB2017-04.ThorpeStVacation

CB2017-04.VacatingPortionOfThorpeSt

CB2017-04.VacatingPortionOfThorpeSt.ExA

CB2017-04.VacatingPortionOfThorpeSt.ExB

19 - 25

6.2. Nuisance Abatement Update (Staff: Mason)

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7. NEW BUSINESS 7.1. Amends Telecommunications and Cable Ordinance: CB #2017-

03 and Resolution #17-1447, (Staff: Monson) StaffMemo

CB2017-03.AmendsIMC.Ch30.Telecom

CB2017-03.AmendsIMC.Ch30.Telecom.ExA

Res17-1447.SetsFees.TelecomCableCityUtilities.Feb2017

27 - 80

7.2. Resolution #17-1446, Supports Amendment of Oregon

Administrative Rules Regarding Watercraft Inspections (Staff: Irvine)

StaffMemo

Res17-1446.OSMB.BoatRegs.Feb2017

Res17-1446.OSMB.BoatRegs.Feb2017..ExA

81 - 93

7.3. Request for Executive Session Minutes (Staff: Clyne)

StaffMemo

95

8. COUNCIL ANNOUNCEMENTS 9. GENERAL INFORMATION 9.1. Management Team Notes

Team Notes.01-18-17

Team Notes.01-25-17

97 - 100

9.2. Miscellaneous Correspondence

MiscCommunications.PolkCounty.Jan2017

MiscCommunications.Charter.01-19-17



101 - 112

9.3. Pending Agenda Calendar

PAC.02-10-17

113

10. ADJOURN

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555 S. MAIN STREET, P.O. BOX 7, INDEPENDENCE, OR 97351Phone: 503.838.1212 • Fax: 503.606.3282 • TTY: 800.735.2900

www.ci.independence.or.us

The City is an Equal Opportunity Provider

City of Independence, Oregon

February 8, 2017

To: David Clyne, City Manager Robert Mason, Police Chief

From: Gloria Butsch, Finance Director

RE: Cost proposal for providing Municipal Court Services to Falls City.

Judge $270.00 Per court date

Attorney $100.00 Per hour (as needed)

Interpreter $122.00 Per court date (min) – we will split this cost

Court Clerk $12 Per case

Proposal is based on scheduling court dates on same date as City of Independence. Cost for Court Clerk covers preparing cases and court time.

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http://www.ci.independence.or.us/

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CITY OF INDEPENDENCETuesday, January 10, 2017CITY COUNCIL MEETING

I. CALL TO ORDER. The meeting was called to order at 7:30 p.m. in the Council Chambers by Mayor John McArdle. Boy Scout Troup 38 presented the US and Oregon Flags, and led the room in the Pledge of Allegiance.

II. ROLL CALL.

Council Present: Diana Lindskog Nancy Lodge Marilyn Morton Forrest Peck Tom Takacs

Council Absent: Jerry Hoffman (excused)

Council-Elect Present: Ken Friday Kathy Martin-Willis

City Staff Present: David Clyne, City ManagerKarin Johnson, City RecorderShawn Irvine, Economic Development DirectorRobert Mason, Chief of PoliceRobin Puccetti, Community Services DirectorLauren Sommers, City Attorney

III. APPROVAL OF MINUTES. The minutes of December 13, 2016 Regular Meeting; December 19, 2016 Special Meeting; December 19, 2016 Joint Council / Planning Commission Meeting; and December 27th Regular Meeting were submitted in the agenda packet.

ACTION:Councilor Lodge moved to approve the minutes as submitted; Councilor Peck seconded. Motion passed 5-0-0:

AYES: Lindskog, Lodge, Morton, Peck, TakacsNAYS: None

ABSTENTIONS: None

IV. POST-ELECTIONA. Oath of Office. The oath of office was administered to Mayor John McArdle

and Councilors Kenneth Day and Kathy Martin-Willis by City Recorder Johnson.B. Election of Council President. Mayor McArdle announced that councilors have

traditionally nominated the most senior member of the council as president; Councilor Morton was nominated by Councilor Lindskog; seconded by Councilor Takacs. Passed unanimously.

C. Recognition of Outgoing Councilors. 1. Resolution #17-1442, Commending Jerry Hoffman was read aloud.

ACTION: Councilor Martin-Willis moved to pass Resolution #17-1442 as read; Councilor Morton seconded. Motion passed 5-0-0:

AYES: Day, Lindskog, Martin-Willis, Morton, TakacsNAYS: None

ABSTENTIONS: None

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2. Resolution #17-1443, Commending Nancy Lodge was read aloud.

ACTION: Councilor Morton moved to pass Resolution #17-1443 as read; Councilor Lindskog seconded. Motion passed 5-0-0:

AYES: Day, Lindskog, Martin-Willis, Morton, TakacsNAYS: None

ABSTENTIONS: None

Mayor McArdle presented her with a ceremonial copy of the resolution and thanked her for her years of service.

3. Resolution #17-1444, Commending Forrest Peck was read aloud.

ACTION: Councilor Lindskog moved to pass Resolution #17-1444 as read; Councilor Takacs seconded. Motion passed 5-0-0:

AYES: Day, Lindskog, Martin-Willis, Morton, TakacsNAYS: None.

ABSTENTIONS: None.

Mayor McArdle presented him with a ceremonial copy of the resolution and thanked him for his years of service. Councilor Peck thanked independence, stating it had been an honor to serve.

RECESS: RECEPTION

Mayor McArdle declared a recess at 7:48p.m.The meeting reconvened at 8:00 p.m. with Mayor and councilors Day, Lindskog, Martin-Willis, Morton and Takacs at their places at the dais.

V. VISITORS / PUBLIC COMMENTS.A. None.

VI. REPORTS / PRESENTATIONS.A. Mayor McArdle reported:

1. Senator Ron Wyden will host a Town Hall, this Saturday, at the Werner Center at WOU.

2. Wednesday, January 25th is the annual MWVCOG annual dinner. It is a good event for all to attend. City Recorder Johnson can take reservations.

3. Wednesday, February 8th is City Hall Day at Capital, sponsored by the League of Oregon Cities. There will be briefings in the morning, followed by an opportunity to set an appointment with legislators in the afternoon.

4. The State of the Cities address will be on February 8th at 7:00 pm in the Columbia Room at WOU.

5. City Council Liaison Appointments: Mayor McArdle made the following appointments:

i. Museum: Councilor Morton ii. Library: Lindskogiii. Traffic Safety Commission: Councilor Takacsiv. Parks: Councilor Day

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v. Historic Preservation Commission: Councilor Takacsvi. Planning Commission: Councilor Martin-Willisvii. Hop & Heritage Festival Commission: Councilor Martin-Willis viii. Western Days Commission: to be determinedix. WIMPEG: Councilor Lindskog x. MINET: Councilor Day

6. Commission / Committee Appointments. Mayor McArdle appointed and reappointed persons as submitted in the packet, and added Nancy Lodge to the Library Board, Vickie McCubbin to Museum Commission and Eric Smith to the Planning Commission.

ACTION:Councilor Morton moved to approve the appointments as submitted in the agenda packet and include the three additions; Councilor Lindskog seconded. Motion passed 5-0-0:

AYES: Day, Lindskog, Martin-Willis, Morton, TakacsNAYS: None.

ABSTENTIONS: None.

7. Council Vacancy Process. Mayor John McArdle reported that the person elected to Position #3 indicated he would not able to serve, and he is not here to be sworn in. Mayor outlined options for filling the vacancy: 1. Council could appoint the person who came in second place in another race; his name is Michael Hicks, and he lives in the airpark. 2. Council could open this to an application process. Discussion.

ACTION:Councilor Takacs moved to appoint Mike Hicks to the vacant council position; Councilor Lindskog seconded. Brief discussion. Motion Result, 3-2-0:

AYES: Councilor Takacs, Councilor Lindskog, Councilor Martin-WillisNAYS: Councilor Day, Councilor Morton

ABSTENTIONS: NoneMayor declared the motion did not pass, as city charter requires 4 votes to decide a question. City charter provides the Mayor can declare the vacant position ‘negative by absence’, creating a tie, thereby allowing the Mayor to vote. Motion result, 3-3-0:

AYES: Councilor Takacs, Councilor Lindskog, Councilor Martin-WillisNAYS: Councilor Day, Councilor Morton, Vacant Position #3

ABSTENTIONS: None

Mayor McArdle then voted aye; final vote result, 4-2-0:AYES: Councilor Takacs, Councilor Lindskog, Councilor Martin-Willis, Mayor

McArdleNAYS: Councilor Day, Councilor Morton

ABSTENTIONS: None

City Recorder Johnson administered the Oath of Office to Michael Hicks, who then assumed his place at the dais.

B. City Manager Clyne reported:1. He sent the branding consultants and most of staff home due to

weather conditions. 2. Quarterly council work session. There are no topics as of yet; please

let him know of any topics you would like to discuss. O

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3. There will be an orientation for new councilors; about one and a half days of orientation. First day, approximately half facilitated by Mid-Willamette Valley COG, followed by topics discussion by staff. There will be a second day consisting of a tour of facilities; the date to be determined at the orientation. Ms. Johnson will get a common date good for the new councilors. Discussion of quorum, meeting law.

4. A council retreat which will include goals setting will also be scheduled with council.

5. Independence Landing project: i. Regarding public improvements; we are in the middle of

contracts to do the roadway, water/sewer streetscape. Executed a small change order. They will do all work but park work, wait for drier weather for that.

ii. Have been working with the owners along Main Street, working on parking behind their businesses, so that they can take advantage of ground level access. Encouraging 2 entries, and to encourage owners and employees to park in back. Most all have agreed. Will have documents to get out this week.

6. He is on the Board of Directors for Oregon City/County Managers Association, Local Government Personnel Institute and was formerly on the League of Oregon Cities board. Many city staff members are on professional boards, raising a generation of solid professionals willing to share their expertise.

7. The first hearing before the planning commission will be on March 6th, and the council on March 14th for the development code update. March 28th is scheduled for the ordinance to be presented; this is all assuming successful hearings.

8. MINET. He has received the proposed strategic plan; staff was asked to forward comments. Councilor Takacs asked if he could send copies to council with the responses. City Manager Clyne stated it is a confidential document at this point.

9. The police department participated in a very successful event , “Shop With A Cop”, in collaboration with the Grand Ronde Tribe.

10. The city received an unsolicited donation of $3800 for CERT. 11.A reminder to folks that the MWVCOG annual meeting is Jan. 25th; let

the city recorder know if you want to attend. City will pay; spouse on own.

12.Adopted in the city budget 2 years ago was a professional IT department. We had hoped to help pay for it by contracting out services; have contracted with the city of Aumsville the last few months.

13.Community development work:i. We are almost without building lots. Several subdivisions are in

various stages, and we should see new housing this summer. There is lots of commercial development downtown.

VII. UNFINISHED BUSINESS. None.

VIII. NEW BUSINESS.A. Request for Declaration of Nuisance. Chief Mason summarized the staff report

as contained in the agenda packet.

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He noted that the fiscal impact indicated costs for storage of items of value; after discussion with the city attorney, we will provide due process, and if it is not abated, the city will remove and dispose, and will not store, items.

Councilor Takacs asked if the property was occupied; Chief Mason said he was told it was not, but last night’s shift saw activity there. They currently do not have water service.

Councilor Morton asked that since they stopped paying penalties were they substantial now. Police Chief Mason reported they are in excess of $6,000. Councilor Day stated that it seems like it takes so long to get this done. Police Chief Mason noted we tried to get compliance through routine methods – court, fine reduction if he showed improvement. We may need to do this method more quickly in future. Mayor John McArdle noted that generally once someone is cited there is compliance. There is a general reluctance to use the big stick of government.

Councilor Takacs asked the process. Mason went through process. He stated he hopes to get compliance, or he will come back for a request to order abatement, to the next council meeting. After receiving the order from council, then would get a warrant, then abate. Will then bill the owner for costs, and lien the property if not paid.

ACTION:Councilor Takacs moved to declare the property located at 1383/1385 Picture Street a nuisance and direct staff to initiate the abatement process; Councilor Morton seconded. Motion passed 6-0-0:

AYES: Day, Hicks, Lindskog, Martin-Willis, Morton, TakacsNAYS: None.

ABSTENTIONS: None.

B. City Council goals setting. Clyne asked council preference for timing and facilitator. The Mayor will work with the city manager, with orientation prior to goals setting. Council consensus.

C. Council Bill #2017-01, Repeals Ordinance No. 1536. City Manager Clyne summarized the staff report as contained in the agenda packet. Ordinance No. 1536 was passed in October, 2014 to enact a sales tax on all sales of marijuana within the city limits. The Oregon legislature has since passed ORS 475B.345 allowing cities to have a sales tax, but only if approved by voters and only on the sales of recreational marijuana.

ACTION:Motion 1:Councilor Morton moved to read the proposed Ordinance, Council Bill #2017-01 in full as the text is contained in the Council packet, for the first time; Councilor Takacs seconded. Motion passed 6-0-0:


ABSTENTIONS: None.

City Recorder Johnson read the title of the proposed ordinance.

Motion 2:Councilor Lindskog moved to read the proposed Ordinance, Council Bill #2017-01 for the second time by title only; Councilor Hicks seconded. Motion passed 6-0-0:

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ABSTENTIONS: None.

City Recorder Johnson read the title of the proposed ordinance.

Motion 3:Councilor Hicks moved to adopt the proposed Ordinance, Council Bill #2017-01; Councilor Morton seconded. Motion passed 6-0-0:


ABSTENTIONS: None.

City Recorder declared the bill passed, and will be assigned ordinance number 1556.

IX. COUNCIL ANNOUNCEMENTS.A. Councilor Takacs reported the Hop Festival Commission in process of planning

the next event; they need more volunteers for the board.B. Councilor Morton asked about future council items, and a future joint council

meeting. Mayor John McArdle reported that he spoke with Mayor Millegan, and they would like to wait several months.

X. GENERAL INFORMATION.

XI. ADJOURNMENT. There being no further business to come before council, Councilor Lindskog moved to adjourn. Motion passed 6-0-0:


ABSTENTIONS: None.

Meeting adjourned 8:53 p.m.

__________________________MAYOR JOHN McARDLE

ATTEST:

____________________________________Karin Johnson, MMC, City Recorder

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CITY OF INDEPENDENCETuesday, January 24, 2017CITY COUNCIL MEETING

I. CALL TO ORDER. The meeting was called to order at 7:30 p.m. in the Council Chambers by Mayor John McArdle.

II. ROLL CALL.

Council Present: Kenneth Day Michael HicksDiana Lindskog Kathy Martin-Willis Marilyn Morton Tom Takacs

Council Absent: None

City Staff Present: David Clyne, City ManagerKarin Johnson, City RecorderShawn Irvine, Economic Development DirectorRobert Mason, Chief of PoliceRobin Puccetti, Community Services DirectorChristy Monson, City Attorney

III. VISITORS/PUBLIC COMMENTS.A. Robert “Scooter Reid”, Independence. He is here to present his Eagle Scout

project; the CERT team formed Airport Response Team. He hopes to provide them an emergency response trailer. He is seeking donations, and hopes to have project done by July. (Information provided via PowerPoint, Agenda Attachment #1)

B. Ben Stange, PCFD #1, Fire Chief. He is here to recognize Independence police officers (Hedlund, Rumsey, and Unverferth) that were first on scene at a medical emergency; they provided CPR and utilized an AED. The odds nationally survival for cardiac arrest is only 8.3%. This patient was discharged from the hospital within a week. Chief Stange presented the officers in attendance, Hedlund and Rumsey, a Life Saving Award.

Mayor stated that on behalf of the city council and Independence citizens, he appreciates their professionalism and service and thanked Chief for recognizing the officers.

IV. REPORTS / PRESENTATIONSA. Mayor McArdle reported:

1. He attended the Ron Wyden Town Hall week & half ago, and put in a plug for transportation infrastructure.

2. The familiarization for new councilors next Monday at 9:00 a.m. 3. Feb 8th is City Hall Day at the Capital; please sign up if you are able to

go.4. Council Strategic Planning; we secured Joseph Bailey to facilitate.

Looking at February 18th or March 11th; both a Saturday. Consensus to hold on March 11th. He will get a draft agenda in advance, and give councilors an opportunity to add items.

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5. He serves on the COG Board of Directors; due to a significant health change they are looking for a new executive director, and he will be involved in that.

B. Council Liaisons:1. Library: Councilor Lindskog reported missing the last meeting.2. WIMPEG: Councilor Lindskog reported the group is trying to get

organized and get new members. They are working on the paperwork for 503c3 status and working on getting Monmouth council representatives.

3. Heritage Museum: Councilor Morton reported that weather was a factor, not at the last meeting.

C. City Manager Clyne reported:1. Reminder that the management team will hold a work meeting in

advance of the council strategic planning session.2. He has met with a few of the incoming councilors.3. He had the opportunity to meet with the new chamber director; it was

a good meeting, and he gave him a tour of the facility. He provided thoughts on how the city can help the chamber.

4. Council orientation is next Monday at 9:00 am, all are welcome. Nancy Boyer of COG will do orientation in the morning, to be followed by team leadership presentations.

5. Council retreat scheduled.6. He noted that staff doesn’t provide a large amount of written reports;

management team notes are provided and included in the agenda packet and is a good way to keep informed. He welcomes council to contact him with any questions.

7. Independence Landing Project report is included in the packet; he will update the “status” portion of memo monthly. Report summarized.

Councilor Day said he didn’t remember parcel 8 being reserved for commercial development, asked if it had been an ongoing thing; City Manager Clyne said that it has from the beginning. Day asked about paving of the north civic center parking lot, if it is part of the landing, or a part of the project. Clyne reported that a few things have been picked up as part of the project, as we have the ability to do it at very reduced rates. Day also asked about the parking at old city hall. Clyne stated it is needed, as we are short on parking downtown; the intent to keep the parking lot when the property is sold. Day asked about CCRs being reviewed, and that it seems those types of things should be agreed prior to spending funds and digging. Clyne reported the infrastructure project is completely separate from the development agreement; the city decided some time ago to go forward with infrastructure installation regardless of who the developer is; there is a point where we execute a contract, then close the contract. Close of the contract is after completion of a number of steps; other agreements besides the CCRs will need to be completed during the due diligence period. Day said the city has commissioned a formal appraisal to facilitate development financing. Clyne this is on the private side. The developers will need to have a formal appraised figure; this is part of the agreement. With the urban renewal district picking up the bill, we will get a repaid on the proceeds.

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D. City Staff / Other1. Shawn Irvine reported the city has worked for a number of years on

our identity; for the last several years we have talked about the need to pull together a unified message. We moved ahead this year, and selected Fisher Carlson to do our branding identity. He introduced Shannon Carlson of Fisher Carlson, who gave a presentation regarding the process. (PowerPoint presentation, Agenda Attachment #2)

Day asked how they will determine what people think now; what is the goal Carlson said that people need to know where we are, what people believe but also what people want it to be. By putting together an identity, you will draw people and businesses. Day asked what should Independence be bragging about. Carlson noted the welcoming and inclusiveness of the community; also what one can do in Independence. You have a charming downtown; the city is growing, with quite a few amenities; there is everything from history to what you can do. Not only a place you want to visit but want to live.

Councilor Takacs asked the timeline. Carlson said it is slated to complete by the end of April, with followup in mid-May. Councilor Takacs asked if there will be something for us to use this summer; Carlson said yes, it will be a key for tourism.

2. MINET General Manager Don Patten addressed Mayor and Council. He congratulated the newly elected officials, and welcomed the two new members to the Board, Chief Mason and Councilor Day. He stated he’s had the opportunity to sit with Day; he is preparing to be good liaison, but also doesn’t want the council to feel as though they must rely on the liaison, his door is always open. Patten read his written report (Attachment #3), including that MINET business penetration continues to be very high. In December, they enjoyed a net operating income of over $100,000. Statistics provided via slide, (Attachment #4).

Councilor Day noted the debt forgiveness assumption, and asked if all in were in agreement with that assumption. (No objection voiced.)

Mayor John McArdle stated that there are lots of conversations to have; no decisions are requested at this time, just being informed. He reiterated that council is always welcome to visit with Day or Mason or call Patten with questions.

3. Finance Director Report. City Manager Clyne reported Ms. Butsch is unable to be here due to a family emergency. Amanda Aschim is here to answer questions; if neither she nor he can answer, they will research and get back to you.

Day noted the contingency is not spent, but MINET didn’t meet its debt payment, and asked where the city’s portion of the payment is shown. City Manager Clyne explained the payment comes out of the water operating fund, budgeted as MINET support payment. He also gave a brief explanation of how contingencies work.

Councilor Morton said she hoped to see a list of the transfer of monies between funds. She acknowledged that an annual statement is in the budget; she would like to see regular reports.

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Councilor Day asked about General Fund Cost of Services? Aschim stated they could be forward payments, PERS, etc; she will look into.

4. Audit Report. Cammy Austin of presented audit report. Hard copies distributed; summarized findings for both City and Urban Renewal District.

As auditor, they looks at where the city is at, and the city is doing okay. In addition to a finance audit, they do a compliance audit. There were two budgetary deficits; they Urban Renewal District and the Water Fund were overspent. Also as auditor, looked at circumstances around MINET, and ask is the city okay; yes, the city is okay. As auditor, is concerned, knows you are too. She was asked to expand on this; she said that as auditor, look at where city is at, you’re okay, you’re going to do okay. But, ten years from now, 5 years from now, she doesn’t know.

Mayor John McArdle that she stated we are fine now and her position is not one of projections for the future, it is about where everything is. So, with municipalities, she doesn’t make statements about where things will be at 10 years from now. She agreed. Takacs noted that there are three issues - water fund, urban renewal and MINET.

City Manager Clyne reported the Urban Renewal Fund has been in deficit condition for some time, and there is a work out plan in place. The water fund had a timing break between fiscal years; spent on bond issue in 2015-16, and received bond proceeds in 2016-17. Yes, MINET is part of the water fund and is an ongoing concern, but all of us together are addressing. There has been lots of progress over the years. Mayor McArdle said that when Ms. Butsch gets back, she would be glad to go over the audit and any questions from councilors.

V. UNFINISHED BUSINESSA. Abatement of Nuisance. Chief Mason summarized the information as contained

in the staff report. A notice was posted and mailed; there has been some work done, but the nuisance still is there to some degree.

Councilor Day noted they made a lot of progress, still looks terrible. He asked if there were a limitation to the next steps. Police Chief Mason agreed there have been more results in the last 10 days than in many months. He is comfortable giving discretion to the ordinance officer, oversee; he doesn’t want the council to be disappointed if this comes back.

Councilor Morton asked if they could extend a decision for two weeks; Mason stated yes.Mayor John McArdle suggested to give the go ahead, give staff authorization, and exercise their professional discretion. Police Chief Mason noted they could use the time for staff to do a work plan (affidavit, find contractor, etc). It will take us at least one week, probably two to move forward anyway.

City Manager Clyne reported staff doesn’t come often with these types of things, and really didn’t want to come to council; want council to trust in staff to make determination, and give them the tools. We want to provide customer service, but also to let property owners know we are serious.

Councilor Takacs stated he is in favor of keeping on the pressure, and trust staff to make correct decisions as we go forward. Councilor Day noted there have been significant improvements made; a pat on back, give them 2 weeks to complete. Not disregarding what staff is saying, but give an extension for two weeks. Hicks said there was a pattern of partial

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cleaning then regressing back. Takacs noted that if council continues with this, they can stop it on their end if they see progress. Thinks keeping the pressure will get better results.

ACTION:Councilor Morton moved that city staff cause to have the nuisance abated at the property located at 1383/1385 Picture Street, with the property owner to be assessed all costs, including administrative overhead and the caveat that council have a report t at end of two weeks on how things are going; Councilor Takacs seconded. Motion passed 5-1-0:

AYES: Hicks, Lindskog, Martin-Willis, Morton, TakacsNAYS: Day

ABSTENTIONS: None.

VI. NEW BUSINESSA. Public Hearing: Street Vacation.

Hearing Opened.1. Community Development Director Danko summarized the information as contained

in the staff report.2. Public Comments: None

Hearing Closed.

Council Deliberation:

ACTION:Day moved to approve the vacation of the portion of Thorpe Street as submitted by petition, and directed staff to prepare an ordinance declaring the vacation; Councilor Morton seconded. Motion passed 6-0-0:


ABSTENTIONS: None.

3. Budget, FY 2017-18. City Manager Clyne gave a brief summary of the budget process, and summarized the information as contained in the staff report.

Councilor Day asked that in order to do the budget, they must have assumptions, and asked when those come out. Clyne reported that fundamental tools include the strategic plan and the 20-year plan across all utilities; the 3 year Capital Improvement Plan. Most of the labor costs are fixed; better than 50% of the workforce has labor contracts, and we also have guidance for non-contract employees.

ACTION:Councilor Hicks moved to adopt the 2017-18 budget calendar as presented and to appoint Gloria Butsch, Finance Director as the Budget Officer; Councilor Lindskog seconded. Motion passed 6-0-0:


ABSTENTIONS: None.

4. Appoint City Recorder Pro Tempore. City Manager Clyne summarized the information as contained in the staff report.

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ACTION:Councilor Morton moved to appoint Michelle Olafson as Clerk of the Council Pro Tempore, to begin on February 13, 2017 and end March 6, 2017, during the absence of City Recorder Karin Johnson; Councilor Hicks seconded. Motion passed 6-0-0:


ABSTENTIONS: None.

City Manager Clyne noted that there are only three appointments per the city charter; council has authority over those, although daily supervision of the recorder is given to the manager.

5. Fee Schedule. City Manager Clyne summarized the information as contained in the staff report.

Mayor John McArdle noted that fees are generally not an income producer, but are there to recover costs.

Councilor Morton asked if the IT Director’s rate for hiring out to other cities is in the schedule; Clyne said it is not, it is negotiated separately.

Councilor Takacs asked about marijuana business license fees; what does the city actually does to recover the costs. Danko stated that staff will take a close look at the business license application packet, and that it is very likely that the city will hire consultants due to the level of detail asked for, such as for odor control. We can take a look at the fee one year from now, see if it needs to be adjusted. Disc.

Councilor Day had several specific questions about fees in the schedule regarding community development, library, dog licenses and sound technicians.

Councilor Day stated council should look at water and sewer rates when a customer is not in residence. Clyne noted this will be addressed later, and there will be a conversation about base versus usage; brief discussion. City Manager Clyne noted they will have a more thorough conversation with the rate study discussion.

Day – asked about service connection fees for mobile home court spaces. City Manager Clyne noted we do have residential mobile home subdivisions. Day asked if there is a difference between single family and court spaces; Danko will look into.

Public Comment: NoneCouncil Deliberation:Councilor Morton stated her appreciation for new voices on the council.

ACTION:Councilor Morton moved to adopt Resolution #17-1445, amending the fee schedule as presented; Hicks seconded. Motion passed 6-0-0:


ABSTENTIONS: None.

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VII. COUNCIL ANNOUNCEMENTS:A. Councilor Morton reported she serves as Pres of the Independence Downtown

Association; she will be gone for the next meeting, which will be led by the Vice-Chair, Imani Hall.

EXECUTIVE SESSION, PER ORS 192.660 (2)(f) to consider exempt public records. Mayor McArdle read the following:

The Independence City Council will now meet in Executive Session to consider information or records that are exempt from disclosure, pursuant to ORS 192.660(2)(f).

Representatives of the news media and designated staff shall be allowed to attend the executive sessions. Representatives of the news media are specifically directed not to report on any of the deliberations during the executive sessions, except to state the general subject of the sessions as previously announced. No decision may be made in executive session.

At this time, the Council will adjourn to the conference room; once the executive session has adjourned, we will return to open session in the Council Chambers.

No decisions are anticipated as a result of the executive session.

Executive Session convened at 9:07 a.m.

Regular Session reconvened at 9:48 a.m. with all councilors back at their places at the dais.

IX.ADJOURNMENT. There being no further business to come before council, Councilor Morton moved to adjourn. Motion passed 6-0-0:


ABSTENTIONS: None.

Meeting adjourned 9:48 a.m.

__________________________MAYOR JOHN McARDLE

ATTEST:

____________________________________Karin Johnson, MMC, City Recorder

Page 17 of 113

of 113

555 South Main Street / Post Office Box 7/ Independence, OR 97351Phone: 503/838-1212 / Fax: 503/606-3282 / email: [email protected]

TO: Mayor and City CouncilFROM: David Clyne, City Manager

MEETING DATE: February 14, 2017SUBJECT: Council Bill #2017-04 Vacating a Portion of Thorpe Street

[ ] Information Only [ X ] Action Requested

Statement of Issue:Council Bill #2017-04, vacating a portion of Thorpe Street is presented for City Council consideration.

Background: At the January 24, 2017 City Council meeting, council held a public hearing regarding the petition from Jeffrey & Janice Pratt to vacate a portion of Thorpe Street. No public testimony, oral or written, was received regarding the petition. The public hearing was then closed.

Discussion: After the public hearing, council directed staff to prepare an ordinance granting the vacation. An ordinance was prepared and reviewed by city legal counsel.

Fiscal Impact: There may be a modest property tax benefit, with the transfer of the property from city right-of-way to private property ownership.

Options:1. Approve Council Bill #2017-04, Vacating a Portion of Thorpe Street as presented;2. Take no action

Recommendation/Suggested Motion:Staff recommends Option 1.

Suggested Motion:‘I move to read the proposed Ordinance, Council Bill #2017-04 in full as the text is contained in the Council packet, for the first time.’

Should the council desire, the proposed ordinance may be read again and put on passage at this meeting. The following motions would be in order:

‘I move to read the proposed Ordinance, Council Bill #2017-04 for the second time by title only.’

‘I move to adopt the proposed Ordinance, Council Bill #2017-04.’

Attachments:A. Council Bill #2017-04 and exhibits

Memo prepared by: Karin Johnson, MMC, City Recorder

CITY OF INDEPENDENCEMEMORANDUM

Page 19 of 113

of 113

of 2/Council Bill #2017-02 / Vacation of a Portion of Thorpe Street

BEFORE THE CITY COUNCIL OF THE CITY OF INDEPENDENCE

STATE OF OREGON, COUNTY OF POLK

An Ordinance Vacating a ]Portion of Thorpe Street ] CB #2017-04and Stating an Effective Date ]

ORDINANCE NO.

Whereas, a complete petition was received from Jeffrey and Janice Pratt on December 14, 2016 for vacation of an unimproved portion of Thorpe Street, as more particularly described in the legal description attached as Exhibit A and plat map as attached in Exhibit B, which petition included the written consent of the property owner, and abutting and affected property owners; and

Whereas, it has been determined that, at the present time, no City liens are existing or unpaid against Property and, by virtue of the fact that it is a dedicated right-of-way, no taxes are unpaid thereon; and

Whereas, the Independence City Council at its meeting on December 27, 2016, fixed January 24, 2017 at 7:30 a.m., Independence City Hall, 555 South Main Street, Independence as the date, time and place for the Council to hold a public hearing regarding the vacation; and

Whereas, the City gave notice of the public hearing by publishing a notice in the Polk County Itemizer Observer, a newspaper of general circulation published in Independence, once each week for two consecutive weeks on January 11, 2017 and January 18, 2017, which notice described the ground subject to the vacation, the date of the public hearing and that written comments must be filed with the City of Independence prior to the time of the hearing; and

Whereas, within five (5) days after the first day of publication of said notice in the newspaper and not less than fourteen (14) days before the hearing date, the City Recorder caused a copy of the notice to be posted in at least two conspicuous locations at or near each end of the proposed vacation, in accordance with ORS 271.110(2); and

Whereas, the purpose of the hearing was to hear testimony regarding the proposed vacation of a portion of Thorpe Street, and described in the attached ‘Exhibit A’; and

Whereas, at the January 24, 2017 public hearing, held in accordance with ORS 271.120, the Independence City Council considered the proposed vacation and heard any written objection filed thereto, and heard oral testimony from members of the public in favor of and/or in opposition to said vacation; and

WHEREAS, upon conclusion of the public hearing, Council determined that: (1) proper consent of the owners of the requisite area was obtained, and (2) notice was duly given; and

Page 21 of 113

of 2/Council Bill #2017-02 / Vacation of a Portion of Thorpe Street

WHEREAS, the owners of the majority of the area affected, computed on the basis provided in ORS 271.080, have not objected in writing to the proposed vacation; and

WHEREAS, the Independence City Council finds that there is not a public need for the use of the portion of public right-of-way described in this ordinance, the public interest will not be prejudiced by the proposed vacation; NOW, THEREFORE

THE CITY OF INDEPENDENCE DOES ORDAIN AS FOLLOWS:

Section 1. The City Council hereby vacates an eastern portion of Thorpe Street, reserving a storm drain easement, as more particularly described in the legal description attached as Exhibit A and the associated plat map, attached as Exhibit B, all within the corporate limits of the City of Independence.

Section 2. The City Manager shall cause the record of this vacation to be recorded in the Deed records of Polk County, and with the Assessor and County Surveyor of Polk County, as required by law.

Section 3. This Ordinance shall take effect 30 days from its passage by the Council and the signature of the Mayor.

Read for the first time: Read for the second time: Passed by the City Council: Signed by the Mayor:

____________________________________ JOHN McARDLE, MAYOR

ATTEST:

_________________________Karin Johnson, MMCCity Recorder

Page 22 of 113

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I DAVID LEE SCHLOSSER JR. - REGISTERED SURVEYORORTHSTAI?SURVEYING’”vc* ‘720 NW4"‘Street, Corvallis, Oregon 97330 Phone 541-757-9050; FAX 541-757-7578

EXHIBIT A

N 00°00’38” W 120.16 feet to a point at the

THORP STREET VACATION

A portion of Thorpe Street of E. A. Thorpe’s Town Plat of Independence lying within theSoutheast Quarterof the Southwest Quarterof Township 8 South, Range 4 West, Section 21,Willamette Meridian,City of Independence, Polk County, Oregon, said portion being moreparticularly described as follows:

Beginning at a point on the East right-of-way line of said street being also the Southwest corner ofLot 1, Block 3 of saidplat;

Thence leaving said right-of-way line along the extension of the South line of said lot 1N 89°54’26” W 27.00 feet;

Thence parallel with the West line of Lots 1 and 2,extension of the North line of Lot 2;

Thence along the extension of the North line of Lot 2 S 89°51 ’59” 27.00 feet to the Northwestcorner of Lot 2;

Thence along the West line of Lots 1 and 2, S 0O°00’38” E 27.00 feet to the Point of Beginning.

Containing 3,227 square feet, more or less.

Subject to a Storm Drain Easement, as shown on the attachedExhibit

Page 23 of 113

of 113


TO: Mayor and City CouncilFROM: David Clyne, City Manager

MEETING DATE: February 14, 2017SUBJECT: Council Bill #2017-03, Amending Independence Municipal

Code Chapter 30, Telecommunications and Cable

[ ] Information Only [ X ] Action Requested

Statement of Issue: Council Bill #2017-03, Amending Independence Municipal Code, Chapter 30, Telecommunications and Cable, is submitted for council consideration. An accompanying resolution #17-1447 is also submitted, which sets fees per the ordinance.

Background:Ordinance No. 1363 (telecommunications), was adopted July 14, 1998 and Ordinance No. 1402 (cable), was adopted November 13, 2001, (and codified under Chapter 30 in the Independence Municipal Code), requiring that telecommunications providers doing business within the City must register with the City and pay a registration fee and thereafter pay quarterly license fees. These amendments are proposed because the Oregon Supreme Court recently affirmed a City’s right to charge such fees, especially if they are imposed based upon the use or occupation of the City’s right of way. The amendments clarify and reaffirm that the purpose of this fee is to impose a reasonable fee on a telecommunication’s company’s use and occupation of the City’s right of way, as well as to charge for the privilege of doing telecommunications business within the City.

Discussion:Cities throughout Oregon routinely charge private companies reasonable fees for their use and occupation of City right of way. Last year, the Oregon Supreme Court reaffirmed the City of Eugene’s imposition and calculation of reasonable right of way fees to telecommunications companies for its use of City right of way, specifically affirming that the City’s inclusion of revenue from internet services in the City’s fee calculations. The amendments are proposed in order to strengthen the City’s right to charge such right of way fees by clarifying that the City’s fees are imposed due to private use of City right of way.

Resolution #17-1447 sets a percentage rate for franchise fees for cable providers, telecommunications carriers and city-owned utilities and a flat registration for telecommunications and cable. A per lineal foot fee will be revisited by staff and brought to council upon further research.

Fiscal Impact:

Options:1. Approve Council Bill #2017-01 and Resolution #17-1447 as submitted2. Approve Council Bill #2017-01 and Resolution #17-1447 with amendments3. Take no action

CITY OF INDEPENDENCEMEMORANDUM

Page 27 of 113


Recommendation/Suggested Motion:Staff recommends Options 1 and 3.

To adopt the Council Bill:Motion 1:“I move to read the proposed Ordinance, Council Bill #2017-03 in full as the text is contained in the Council packet, for the first time.”

Should the council desire, the proposed ordinance may be read again and put on passage at this meeting. The following motions would be in order:

Motion 2:“I move to read the proposed Ordinance, Council Bill #2017-03 for the second time by title only.”

Motion 3:“I move to adopt the proposed Ordinance, Council Bill # 2017-03.”

To adopt the Resolution:“I move to adopt Resolution #17-1447 as submitted in the agenda packet.”

Attachments:A. Council Bill #2017-03 with Exhibit AB. Resolution $17-1447

Memo prepared by: David Clyne and Karin Johnson

Page 28 of 113

of 3 / Council Bill #2017-03

BEFORE THE CITY COUNCIL OF THE CITY OF INDEPENDENCESTATE OF OREGON, COUNTY OF POLK

An Ordinance Amending Independence ]Municipal Code, Chapter 30, Telecommunications ] Council Bill #2017-03and Cable, and Stating an Effective Date ]

ORDINANCE NO.

WHEREAS, the Charter of the City of Independence grants to the City all powers that the constitutions, statutes and common law of the United States and of the State of Oregon now or hereafter expressly or impliedly grant or allow; and

WHEREAS, among the powers granted to the City is the power to impose license requirements and charges. Such licenses may include charges for the privilege of conducting business within the City; and

WHEREAS, numerous utilities rely on the existence of the City to enable them to provide goods and services to citizens of the City, including, telephone, cable television, and other information and telecommunications services; and

WHEREAS, telecommunication carriers and cable providers seek to provide services which require, for their effective delivery, connection to, interaction with, or other use of facilities placed in the Public Ways; and

WHEREAS, the City desires to champion the ready availability of telecommunication and cable services for all its residential and commercial citizens by providing infrastructure and amenities that make Independence a better place to do business. The City is committed to authorizing the managed, private access and use of the Public Ways for telecommunications and cable services so long as such use is consistent with and does not unduly burden or interfere with the principal purpose of the Public Ways, which is to facilitate the free transit of Persons and goods in commerce; and

WHEREAS, the City holds the health, safety, quality of life and opportunities to prosper, as well as such physical assets as the Public Ways, in trust for all of its citizens and has a fiduciary responsibility to assure that any use of the City, and especially its Public Ways, are used in a manner that benefits all of the citizens and, where it is deemed appropriate, allow for the recovery of a fair and reasonable compensation for the use of the City as a place to do business; and

Page 29 of 113


WHEREAS, the Oregon Supreme Court recently affirmed a city’s right to charge fair and reasonable franchise fees based on a telecommunications or cable provider’s use of the City rights of way and using a percentage of gross revenue calculation that includes a provider’s revenues derived from all the services provided within the City; and

WHEREAS, many telecommunications providers use and/or occupy the public ways to provide their services and some Telecommunications Providers make little or no use of the public ways. Telecommunications Providers who use and/or occupy the public ways prosper due to the City’s publicly-owned assets and management of those assets. Telecommunications providers who make little or no use of the public ways prosper in large part due to the City amenities, regulations, and infrastructure which make possible the critical mass of residents and businesses within the City; and

WHEREAS, regardless of whether they occupy or use the public ways, telecommunications and cable providers who make franchise or fee payments under this ordinance using a “percentage of gross revenue” methodology based on all services provided within the City are compensating the City fairly for their private use and enjoyment of public assets and resources. Further, telecommunications and cable providers who make franchise or license fee payments under this ordinance using a “cost per linear” foot methodology are also compensating the City fairly for their private use and enjoyment of public assets and resources; and

WHEREAS, if telecommunications or cable providers make “percentage of gross revenue” payments which include only portion of the services they provide within the City, then they are not compensating the City fairly for their private use and enjoyment of public assets and resources. Such telecommunications and cable providers may derive an unfair advantage and their failure to compensate may place similarly-situated telecommunications providers in an inferior and unfair competitive position. Unfair competition does not foster the City’s desired technological and business growth. Among the purposes of this chapter is not only to ensure that the public is properly compensated for the private use and enjoyment of City assets and resources, but also to ensure that all similarly-situated telecommunications providers are treated similarly and fairly in order to foster technological growth and innovation.

THE CITY OF INDEPENDENCE DOES ORDAIN AS FOLLOWS:

Section 1. The Independence Municipal Code, Chapter 30, is hereby amended as shown in the attached Exhibit A, which by this reference is incorporated herein.

Section 2. The City Recorder is authorized and directed to take the necessary clerical and administrative actions to insure that the amendments on Exhibit A are properly incorporated into the municipal code.

Section 3. This ordinance shall become effective thirty days after final passage and its signature by the Mayor.

Page 30 of 113


READ for the first time:READ for the second time:

APPROVED by Council:SIGNED by the Mayor:

___________________________________JOHN McARDLE, MAYOR

ATTEST:

____________________Karin Johnson, MMCCity Recorder

Page 31 of 113

of 113

EXHIBIT A TO COUNCIL BILL #2017-03

ORDINANCE ____

Amendment description: Deleted language is shown as a strike out and added language is shown as underlined.

Chapter 30 -– TELECOMMUNICATIONS [1]

ARTICLE I. - IN GENERAL

Sec. 30-1. - Purpose.

The purpose and intent of this chapter is to:

(1) Comply with the provisions of the 1996 Telecommunications Act as they apply to local governments, tTelecommunications cCarriers and the services those carriers offer;

(2) Promote competition on a competitively neutral basis in the provision of tTelecommunications sServices;

(3) Encourage the provision of advanced and competitive tTelecommunications sServices on the widest possible basis to businesses institutions and residents of the cCity;

(4) Permit and manage reasonable access to the pPublic rRights-of-wWay of the cCity for tTelecommunications purposes on a competitively neutral basis and conserve the limited physical capacity of those pPublic rRights-of-wWay held in trust by the cCity;

(5) Ensure that the cCity's current and ongoing costs of granting and regulating private access to and the use of the pPublic rRights-of-wWay are fully compensated by the persons seeking such access and causing such costs;

(6) Secure fair and reasonable compensation to the cCity and its residents for permitting private use of the pPublic rRight-of-wWay;

(7) Ensure that all tTelecommunications cCarriers providing fFacilities and/or services within the cCity, or passing through the cCity, register and comply with the ordinances, rules and regulations of the cCity;

(8) Ensure that the cCity can continue to fairly and responsibly protect the public health, safety and welfare of its citizens;

(9) Enable the cCity to discharge its public trust consistent with the rapidly evolving federal and sState regulatory policies, industry competition and technological development.

(Code 2006, § 12.40.1)

Sec. 30-2. - Jurisdiction and management of the pPublic rRights-of-wWay.

Page 33 of 113

(a) The cCity has jurisdiction and exercises regulatory cControl over all pPublic rRights-of-wWay within the cCity under authority of the cCity Charter and sState 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 cCity has jurisdiction and exercises regulatory cControl over each pPublic rRight-of-wWay whether the cCity has a fee, easement, or other legal interest in the right-of-way. The cCity has jurisdiction and regulatory cControl 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 pPublic rRight-of-wWay without the permission of the cCity. The cCity grants permission to use rights-of-way by fFranchises and permits.

(e) The exercise of jurisdiction and regulatory cControl over a pPublic rRight-of-wWay by the cCity is not official acceptance of the right-of-way, and does not obligate the cCity to maintain or repair any part of the right-of-way.

(f) The cCity retains the right and privilege to cut or move any tTelecommunications fFacilities located within the pPublic rRights-of-wWay of the cCity, as the cCity may determine to be necessary, appropriate or useful in response to any public health or safety emergency.

(Code 2006, § 12.40.2)

Sec. 30-3. - Regulatory fees and compensation not a tax.

(a) The fees and costs provided for in this chapter, and any compensation charged and paid for use of the pPublic rRights-of-wWay provided for in this chapter, are separate from, and in addition to, any and all federal, sState, local and cCity taxes as may be levied, imposed or due from a tTelecommunications cCarrier, its customers or subscribers, or on account of the lease, sale, delivery or transmission of tTelecommunications sServices.

(b) The cCity has determined that any fee imposed by this chapter is not subject to the property tax limitations of article XI, sections 11 and 11b of the Oregon Constitution. These fees are not imposed on property or property owners but are imposed as a charge for the private use of the City’s Public Rights of Way, which are a publicly-owned asset, and for the privilege of doing business within the City. These fees are not new or increased fees.

(Code 2006, § 12.40.3)

Sec. 30-4. - Definitions.

For the purpose of this chapter the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words not defined herein 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.

Aboveground fFacilities. See "Overhead fFacilities."

Affiliated interest shall have the same meaning as ORS 759.010.

Cable Act means the Cable Communications Policy Act of 1984, 47 USC 521 et seq., as now and hereafter amended.

Page 34 of 113

Cable sService or Cable Television 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.

City means the City of Independence, an Oregon municipal corporation, and individuals authorized to act on the cCity's behalf.

City pProperty means and includes all real property owned by the cCity, other than pPublic rRights-of-wWay and uUtility eEasements as those are defined herein, and all property held in a proprietary capacity by the cCity, which are not subject to right-of-way franchising as provided in this chapter.

Conduit means any structure, or portion thereof, containing one or more dDucts, cConduits, manholes, handholes, bolts, or other fFacilities 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 utilities.

Control or controlling interest means actual working cControl in whatever manner exercised.

Days means calendar dDays unless otherwise specified.

Duct means a single enclosed raceway for conductors or cable.

Facilities means the plant, equipment and property, including, but not limited to, the poles, pipes, mains, Conduits, Ducts, cable, wires, 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.

FCC or Federal Communications Commission means the Federal Administrative Agency, or its lawful successor, authorized to regulate and oversee tTelecommunications cCarriers, services and providers on a national level.

Franchise means an agreement between the cCity and a gGrantee which grants a privilege to use pPublic rRight-of-wWay and uUtility eEasements within the cCity for a dedicated purpose and for specific compensation.

Grantee means the person to which a fFranchise is granted by the cCity.

Oregon Public Utilities Commission or OPUC means the statutorily created sState agency in the State of Oregon responsible for licensing, regulation and administration of certain tTelecommunications cCarriers as set forth in sState law, or its lawful successor.

Overhead or aAboveground fFacilities means utility poles, utility fFacilities and tTelecommunications fFacilities above the surface of the ground, including the underground supports and foundations for such fFacilities.

Private tTelecommunications nNetwork 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. The term "pPrivate tTelecommunications nNetwork" includes services provided by the sState pursuant to ORS 190.240 and 283.140.

Public rRights-of-wWay includes, 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 cCity's right, title, interest or authority to grant a fFranchise to occupy and use such streets and easements for tTelecommunications fFacilities. The term "pPublic rRights-of-wWay" also includes uUtility eEasements as defined herein.

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.

Page 35 of 113

Telecommunications Act means the Communications Policy Act of 1934, as amended by subsequent enactments including the Telecommunications Act of 1996 (47 USC 151 et seq.) and as hereafter amended.

Telecommunications cCarrier means any provider of tTelecommunications sServices and includes every person that directly or indirectly owns, cControls, operates or manages tTelecommunications fFacilities within the cCity.

Telecommunications fFacilities means the plant and equipment, other than customer premises equipment, used by a tTelecommunications cCarrier to provide tTelecommunications sServices.

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 or Telecommunications sService” means transmission for rent, sale, or lease or in exchange for other value received, of information in electromagnetic frequency, electronic or optical form, including but not limited to voice, video or data, whether or not the transmission medium is owned by the provider, and whether or not the transmission medium is wireline or wireless. Telecommunications sService includes all forms of telephone services and voice, data and video transmission, but does not include: (1) cCable sService; (2) open video system service; (3) private communications system services; (4) over the air radio or television broadcasting to the public at large from fFacilities licensed by the Federal Communications Commission or any successor thereto; and (5) direct to home satellite service within the meaning of the Telecommunications Act of 1996.

Telecommunications sSystem. See "Telecommunications fFacilities."

Telecommunications utility has the same meaning as ORS 759.005(1).

Underground fFacilities means utility and or tTelecommunications fFacilities located under the surface of the ground, excluding the underground foundations or supports for oOverhead fFacilities.

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. There is a rebuttable presumption that six feet of a pole is buried below ground level.

Utility Provider means any public, private, cooperative entity, any special district, or any other entity formed for the purpose of providing electric, gas, steam heat, water, wastewater treatment or disposal service.

Utility eEasement means any easement granted to or owned by the cCity and acquired, established, dedicated or devoted for public utility purposes.

Utility Ffacilities means the plant, equipment and property, including, but not limited to, the poles, pipes, mains, conduits, ducts, cable, wires, 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.

(Code 2006, § 12.40.4)

Secs. 30-5—30-26. - Reserved.

ARTICLE II. - REGISTRATION OF TELECOMMUNICATIONS CARRIERS

Sec. 30-27. - Purpose.

The purpose of registration is:

Page 36 of 113

(1) To ensure that all tTelecommunications cCarriers who have fFacilities within the pPublic rRights -of -wWay and/or provide services within the cCity comply with the ordinances, rules and regulations of the cCity.

(2) To provide the cCity with accurate and current information concerning the tTelecommunications cCarriers who offer to provide tTelecommunications sServices within the cCity, or that own or operate tTelecommunications fFacilities within the cCity.

(3) To assist the cCity in the enforcement of this article and the collection of any cCity fFranchise fees or charges that may be due the cCity.

(4) To assist the cCity in monitoring compliance with local, sState and federal laws as they apply to gGrantees under this article.

(5) To assist the City in managing, preserving and protecting the City Public Rights-of-Way, which are a valuable municipal resources.

(Code 2006, § 12.40.5)

Sec. 30-28. - Registration required.

Except as provided in subsection (8) of this section, all tTelecommunications cCarriers having tTelecommunications fFacilities in the City’s pPublic rRights-of-wWay within the corporate limits of the cCity, and all tTelecommunications cCarriers that offer or provide tTelecommunications sService to customer premises within the cCity, shall register with the cCity on forms to be provided by the Public Works Department which shall include the following:

(1) The identity and legal status of the registrant, including any affiliates.

(2) The name, address and telephone number of the officer, agent or employee responsible for the accuracy of the registration statement.

(3) A description and location of the registrant's existing or proposed tTelecommunications fFacilities within the cCity.

(4) A description of the tTelecommunications sService that the registrant intends to offer or provide, or is currently offering or providing, to persons, firms, businesses or institutions within the cCity.

(5) Information sufficient to determine whether the registrant is subject to pPublic rRight-of-wWay regulation or franchising under this article.

(6) Information sufficient to determine whether the transmission, origination or receipt of the tTelecommunications sServices provided or to be provided by the registrant constitutes an occupation or privilege subject to any business tax imposed by the cCity.

(7) 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 tTelecommunications sServices within the cCity.

(8) 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 tTelecommunications fFacilities within the cCity.

(9) If the registrant has applied for and received a cCity business license, list the license number.

(10) Such other information as the cCity may reasonably require.

(Code 2006, § 12.40.6)

Page 37 of 113

Sec. 30-29. - Registration fee.

Each application for registration as a tTelecommunications cCarrier shall be accompanied by a nonrefundable registration fee in an amount to be determined by resolution of the City Council.

(Code 2006, § 12.40.7)

Sec. 30-30. - Exceptions to registration.

The following tTelecommunications cCarriers are excepted from registration:

(1) Telecommunications carriers that are owned and operated for its own use by the sState or a political subdivision of this sState.

(2) A pPrivate tTelecommunications nNetwork, provided that such network does not occupy any pPublic rRights-of-wWay of the cCity.

(Code 2006, § 12.40.8)


ARTICLE III. - CONSTRUCTION STANDARDS

Sec. 30-49. - Responsibility of owner.

The owner of the tTelecommunications fFacilities to be constructed and, if different, the gGrantee, is responsible for performance of and compliance with all provisions of sections 32-50 through 32-68.

(Code 2006, § 12.40.9)

Sec. 30-50. - Construction codes.

Telecommunications fFacilities shall be constructed, installed, operated and maintained in accordance with all applicable federal, sState and local codes, rules and regulations including the National Electrical Code and the National Electrical Safety Code.

(Code 2006, § 12.40.10)

Sec. 30-51. - Generally.

No person shall commence or continue with the construction, installation or operation of tTelecommunications fFacilities within a pPublic rRight-of-wWay except as provided in sections 30-52 through 30-68.

(Code 2006, § 12.40.11)

Sec. 30-52. - Construction permits.

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No person shall construct or install any tTelecommunications fFacilities within a pPublic rRight-of-wWay without first obtaining a construction permit, and paying the construction permit fee established in section 30-57. No permit shall be issued for the construction or installation of tTelecommunications fFacilities within a pPublic rRight-of-wWay:

(1) Unless the tTelecommunications cCarrier has first filed a registration statement with the cCity pursuant to article II of this chapter; and

(2) Unless the tTelecommunications cCarrier has first applied for and received a fFranchise pursuant to sections 30-158 through 30-165.

(Code 2006, § 12.40.12)

Sec. 30-53. - Permit applications.

Applications for permits to construct tTelecommunications fFacilities shall be submitted upon forms to be provided by the cCity and shall be accompanied by drawings, plans and specifications in sufficient detail to demonstrate:

(1) That the fFacilities will be constructed in accordance with all applicable codes, rules and regulations.

(2) That the facilities will be constructed in accordance with the franchise agreement.

(3) The location and route of all facilities to be installed underground.

(4) The location and route of all fFacilities 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 pPublic rRights-of-wWay. Existing fFacilities shall be differentiated on the plans from new construction.

(5) The location of all existing underground utilities, cConduits, dDucts, pipes, mains and installations which are within the pPublic rRights-of-wWay along the underground route proposed by the applicant. A cross section shall be provided showing new or existing fFacilities in relation to the street, curb, sidewalk or right-of-way.

(6) The construction methods and street repair methods to be employed for protection of existing structures, fixtures, and fFacilities, and streets within or adjacent to the pPublic rRights-of-wWay.

(7) The specific trees, structures, improvements, fFacilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate, together with a landscape plan for protecting, trimming, removing, replacing and restoring any trees or areas to be disturbed during construction.

(Code 2006, § 12.40.13)

Sec. 30-54. - Engineer's certification.

All permit applications shall be accompanied by the certification of a registered professional engineer that the drawings, plans and specifications submitted with the application comply with applicable technical codes, rules and regulations.

(Code 2006, § 12.40.14)

Sec. 30-55. - Construction schedule.

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All permit applications shall be accompanied by a written construction schedule, which shall include a deadline for completion of construction. The construction schedule is subject to approval by the Public Works Department.

(Code 2006, § 12.40.15)

Sec. 30-56. - Traffic control plan.

All permit applications shall be accompanied by a traffic control plan demonstrating the protective measures and devices that will be employed, consistent with Uniform Manual of Traffic Control Devices, to prevent injury or damage to persons or property and to minimize disruptions to efficient pedestrian and vehicular traffic.

(Code 2006, § 12.40.16)

Sec. 30-57. - Construction permit fee.

Unless otherwise provided in a franchise agreement, prior to issuance of a construction permit, the applicant shall pay a permit fee in an amount to be determined by resolution of the City Council.

(Code 2006, § 12.40.17)

Sec. 30-58. - Issuance of permit.

If satisfied that the applications, plans and documents submitted comply with all requirements of this article and the fFranchise agreement, the Public Works Department shall issue a permit authorizing construction of the fFacilities, 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.

(Code 2006, § 12.40.18)

Sec. 30-59. - Notice of construction.

The permittee shall notify the Public Works Department not less than two working dDays in advance of any excavation or work in the pPublic rRights-of-wWay.

(Code 2006, § 12.40.19)

Sec. 30-60. - Locates.

The permittee shall comply with the rules adopted by the Oregon Utility Notification Center regulating the notification and marking of uUnderground fFacilities.

(Code 2006, § 12.40.20)

Sec. 30-61. - Compliance with permit.

All construction practices and activities shall be in accordance with the permit and approved final plans and specifications for the fFacilities. The Public Works Department and their representatives shall

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be provided access to the work site and such further information as they may require to ensure compliance with such requirements.

(Code 2006, § 12.40.21)

Sec. 30-62. - Display of permit.

The permittee shall maintain a copy of the construction permit and approved plans at the construction site and shall display the permit. Plans shall be made available for inspection by the Public Works Department or their representatives at all times when construction work is occurring.

(Code 2006, § 12.40.22)

Sec. 30-63. - Noncomplying work.

Upon order of the Public Works Department, all work which does not comply with the permit, the approved plans and specifications for the work, or the requirements of this article, shall be removed at the sole expense of the permittee.

(Code 2006, § 12.40.23)

Sec. 30-64. - Completion of construction.

The permittee shall promptly complete all construction activities so as to minimize disruption of the cCity rights-of-way and other public and private property. All construction work within cCity rights-of-way, including restoration, must be completed within 120 dDays of the date of issuance of the construction permit unless an alternate schedule has been approved pursuant to the schedule submitted and approved by the appropriate cCity official as contemplated by section 30-55.

(Code 2006, § 12.40.24)

Sec. 30-65. - As-built drawings.

Within 60 dDays after completion of construction, the permittee shall furnish the cCity with two complete sets of plans drawn to scale and certified to the cCity as accurately depicting the location of all tTelecommunications fFacilities constructed pursuant to the permit, in a format acceptable to the City Engineer.

(Code 2006, § 12.40.25)

Sec. 30-66. - Restoration of pPublic rRights-of-wWay and cCity pProperty.

(a) When a permittee, or any person acting on its behalf, does any work in or affecting any pPublic rRights-of-wWay or cCity pProperty and such work causes obstructions or negatively affects or impairs the condition of the pPublic rRights-of-wWays, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to at least as good a condition as existed before the work was undertaken, unless otherwise directed by the cCity and as determined by the City Engineer.

(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

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the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. Any corresponding modification to the construction schedule shall be subject to approval by the cCity.

(c) If the permittee fails to restore rights-of-way or property to at least as good a condition as existed before the work was undertaken, the cCity shall give the permittee written notice and provide the permittee a reasonable period of time not exceeding 30 dDays to restore the rights-of-way or property. If, after said notice, the permittee fails to restore the rights-of-way or property to as good a condition as existed before the work was undertaken, the cCity 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, flagging attendants, 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.

(Code 2006, § 12.40.26)

Sec. 30-67. - Landscape restoration.

(a) All trees, landscaping and grounds removed, damaged or disturbed as a result of the construction, installation, maintenance, repair or replacement of tTelecommunications fFacilities, whether such work is done pursuant to a fFranchise or permit shall be replaced or restored as nearly as may be practicable, to the condition existing prior to performance of work.

(b) Any trees, shrubs or other landscaping that show substantial damage within 18 months of completion of the construction, which damage can be attributed to permittee's construction activities, must be replaced at the sole expense of the permittee.

(c) All restoration work within the pPublic rRights-of-wWay shall be done in accordance with landscape plans approved by the cCity.

(Code 2006, § 12.40.27)

Sec. 30-68. - Performance and completion bond.

Unless otherwise provided in a fFranchise agreement, a performance bond written by a corporate surety acceptable to the cCity, and authorized to transact business in the sState, equal to at least 100 percent of the estimated cost of constructing permittee's tTelecommunications fFacilities within the pPublic rRights-of-wWay of the cCity shall be deposited before construction is commenced.

(1) The performance bond shall remain in force until 60 dDays after substantial completion of the work, as determined in writing by the cCity, including restoration of pPublic rRights-of-wWay and other property affected by the construction.

(2) The performance bond shall guarantee, to the satisfaction of the cCity:

a. Timely completion of construction;

b. Construction in compliance with applicable plans, permits, technical codes and standards;

c. Proper location of the fFacilities as specified by the cCity;

d. Restoration of the pPublic rRights-of-wWay and other property affected by the construction;

e. The submission of as-built drawings after completion of the work as required by this article; and

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f. Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work.

(Code 2006, § 12.40.28)


ARTICLE IV. - LOCATION OF TELECOMMUNICATIONS FACILITIES

Sec. 30-95. - Location of fFacilities.

All fFacilities located within the pPublic rRight-of-wWay shall be constructed, installed and located in accordance with the following terms and conditions: , unless otherwise specified in a franchise agreement:

(1) Grantee or Telecommunications Carrier shall install its tTelecommunications fFacilities underground unless the cCity specifically permits attachments to utility poles or other aAboveground fFacilities.

(2) Grantee or Telecommunications Carrier shall install its tTelecommunications fFacilities within an existing underground dDuct or cConduit whenever surplus capacity exists within such utility facility, unless gGrantee or Telecommunications Carrier demonstrates to the satisfaction of the cCity that such installation is not feasible.

(3) GA grantee or Telecommunications Carrier with permission to install oOverhead fFacilities shall install its tTelecommunications fFacilities on pole attachments to existing utility poles only, and then only if surplus space is available.

(4) Whenever any existing electric utilities, cCable fFacilities or tTelecommunications fFacilities are located underground within a pPublic rRight-of-wWay of the cCity, a gGrantee or Telecommunications Carrier with permission to occupy the same pPublic rRight-of-wWay must also locate its tTelecommunications fFacilities underground.

(5) Whenever any new or existing electric utilities, cCable fFacilities or tTelecommunications fFacilities are located or relocated underground within a pPublic rRight-of-wWay of the cCity, a gGrantee or Telecommunications Carrier that currently occupies the same pPublic rRight-of-wWay shall relocate its fFacilities underground concurrently with the other affected utilities to minimize disruption of the pPublic rRight-of-wWay, absent extraordinary circumstances or undue hardship, as which shall be determined solely by the cCity and consistent with sState law.

(Code 2006, § 12.40.29)

Sec. 30-96. - Interference with the pPublic rRights-of-wWay.

No gGrantee or Telecommunications Carrier may locate or maintain its tTelecommunications fFacilities so as to unreasonably interfere with the use of the pPublic rRights-of-wWay by the cCity, by the general public or by other persons authorized to use or be present in or upon the pPublic rRights-of-wWay. All such fFacilities shall be moved by the gGrantee or Telecommunications Carrier, temporarily or permanently, as determined by the cCity at the sole expense of the gGrantee or Telecommunications Carrier. All use of pPublic rRights-of-wWay shall be consistent with cCity codes, ordinances and regulations.

Page 43 of 113

(Code 2006, § 12.40.30)

Sec. 30-97. - Relocation or removal of fFacilities.

Within 30 dDays following written notice from the cCity, a gGrantee or Telecommunications Carrier shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any tTelecommunications fFacilities within the pPublic rRights-of-wWay whenever the cCity shall have determined that such removal, relocation, change or alteration is reasonably necessary for:

(1) The construction, repair, maintenance or installation of any cCity or other public improvement in or upon the pPublic rRights-of-wWay.

(2) The operations of the cCity or other governmental entity in or upon the pPublic rRights-of-wWay.

(3) The public interest.

(Code 2006, § 12.40.31)

Sec. 30-98. - Removal of unauthorized fFacilities.

Within 30 dDays following written notice from the cCity, any gGrantee, tTelecommunications cCarrier, or other person that owns, cControls or maintains any unauthorized tTelecommunications sSystem, fFacility or related appurtenances within the pPublic rRights-of-wWay of the cCity shall, at its own expense, remove such fFacilities or appurtenances from the pPublic rRights-of-wWay of the cCity. A tTelecommunications sSystem or fFacility is unauthorized and subject to removal in the following circumstances:

(1) One year after the expiration or termination of the gGrantee's tTelecommunications fFranchise.

(2) Upon abandonment of a facility within the pPublic rRights-of-wWay of the cCity. 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 dDays or longer. A facility will not be considered abandoned if it is temporarily out of service during performance of repairs or if the facility is being replaced.

(3) If the system or facility was constructed or installed without the prior grant of a tTelecommunications fFranchise.

(4) If the system or facility was constructed or installed without the prior issuance of a required construction permit and the City has provided Grantee or Telecommunications Carrier reasonable opportunity to correct the permit violation.

(5) If the system or facility was constructed or installed at a location not permitted by the gGrantee's tTelecommunications fFranchise or other legally sufficient permit and the City has provided Grantee or Telecommunications Carrier a reasonable time period to correct the violation and relocate its fFacilities.

(Code 2006, § 12.40.32)

Sec. 30-99. - Coordination of construction activities.

All gGrantees and Telecommunications Carriers are required to cooperate with the cCity and with each other.

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(1) By January 1 of each year, gGrantees and Telecommunications Carriers shall provide the cCity with a schedule of their proposed construction activities in, around or that may affect the pPublic rRights-of-wWay.

(2) Each gGrantee and Telecommunications Carrier shall meet with the cCity, other gGrantees and users of the pPublic rRights-of-wWay annually or as determined by the cCity to schedule and coordinate construction in the pPublic rRights-of-wWay.

(3) All construction locations, activities and schedules shall be coordinated, as ordered by the City Engineer, to minimize public inconvenience, disruption or damages.

(Code 2006, § 12.40.33)

Secs. 30-100—30-126. - Reserved.

ARTICLE V. - TELECOMMUNICATIONS FRANCHISE

DIVISION 1. - GENERALLY

Sec. 30-127. - Governing law.

Any fFranchise granted under this article is subject to the provisions of the Constitution and laws of the United States, and the sState and the ordinances and Charter of the cCity.

(Code 2006, § 12.40.63)

Sec. 30-128. - Written agreement.

No fFranchise shall be granted hereunder unless the agreement is in writing.

(Code 2006, § 12.40.64)

Sec. 30-129. - Nonexclusive grant.

No fFranchise granted under this article shall confer any exclusive right, privilege, license or fFranchise to occupy or use the pPublic rRights-of-wWay of the cCity for delivery of tTelecommunications sServices or any other purposes.

(Code 2006, § 12.40.65)

Sec. 30-130. - Severability and preemption.

If any article, section, subsection, sentence, clause, phrase, term, provision, condition, covenant or portion of this article is for any reason held to be invalid or unenforceable by any court of competent jurisdiction, or superseded by sState or federal legislation, rules, regulations or decision, the remainder of the article shall not be

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