4.15.070 Licenses | Beaverton Code

4.15.070 Licenses.

1. Except those utility operators with a valid franchise agreement from the City, every person shall obtain a license from the City prior to conducting any work in the rights-of-way.

2. Every person that owns or controls utility facilities in the rights-of-way as of the effective date of this chapter shall apply for a license from the City within 45 days of the later of: (a) the effective date of this chapter, or (b) the expiration of a valid franchise from the City, unless a new franchise is granted by the City pursuant to subsection E of this section.

B. License Application. The license application shall be on a form provided by the City, and shall be accompanied by any additional documents required by the application to identify the applicant, its legal status, including its authorization to do business in Oregon, a description of the type of utility service provided or to be provided by the applicant, and the facilities over which the utility service will be provided, and other information reasonably necessary to determine the applicant’s ability to comply with the terms of this chapter.

C. License Application Fee. The application shall be accompanied by a nonrefundable application fee or deposit set by resolution of the city council in an amount sufficient to fully recover all of the City’s costs related to processing the application for the license.

D. Determination by City. The City shall issue, within a reasonable period of time, a written determination granting or denying the license in whole or in part. If the license is denied, the written determination shall include the reasons for denial. The license shall be evaluated based upon the provisions of this chapter, the continuing capacity of the rights-of-way to accommodate the applicant’s proposed utility facilities and the applicable Federal, State and local laws, rules, regulations and policies.

E. Franchise Agreements. If the public interest warrants, the City and utility operator may enter into a written franchise agreement that includes terms that clarify, enhance, expand, waive or vary the provisions of this chapter, consistent with applicable State and Federal law. The franchise may conflict with the terms of this chapter with the review and approval of the city council. The franchise shall be subject to the provisions of this chapter to the extent such provisions are not in conflict with any such franchise. In the event of a conflict between the express provisions of a franchise and this chapter, the franchise shall control.

1. The license granted hereunder shall authorize and permit the licensee, subject to the provisions of the City code and other applicable provisions of State or Federal law, to construct, place, maintain and operate utility facilities in the rights-of-way for the term of the license.

2. Any license granted pursuant to this chapter shall not convey equitable or legal title in the rights-of-way, and may not be assigned or transferred except as permitted in subsection K of this section.

3. Neither the issuance of the license nor any provisions contained therein shall constitute a waiver or bar to the exercise of any governmental right or power, including without limitation the police power or regulatory power of the City, as it may exist at the time the license is issued or thereafter obtained.

G. Term. Subject to the termination provisions in subsection M of this section, the license granted pursuant to this chapter will remain in effect for a term of five years.

H. License Nonexclusive. No license granted pursuant to this section shall confer any exclusive right, privilege, license or franchise to occupy or use the rights-of-way for delivery of utility services or any other purpose. The City expressly reserves the right to grant licenses, franchises or other rights to other persons, as well as the City’s right to use the rights-of-way, for similar or different purposes. The license is subject to all recorded deeds, easements, dedications, conditions, covenants, restrictions, encumbrances and claims of title of record that may affect the rights-of-way. Nothing in the license shall be deemed to grant, convey, create or vest in licensee a real property interest in land, including any fee, leasehold interest or easement.

I. Reservation of City Rights. Nothing in the license shall be construed to prevent the City from grading, paving, repairing or altering any rights-of-way, constructing, laying down, repairing, relocating or removing City facilities or establishing any other public work, utility or improvement of any kind, including repairs, replacement or removal of any City facilities. If any of licensee’s utility facilities interfere with the construction, repair, replacement, alteration or removal of any rights-of-way, public work, City utility, City improvement or City facility, except those providing utility services in competition with a licensee, licensee’s facilities shall be removed or relocated as provided in BC 4.15.090(C), (D) and (E), in a manner acceptable to the City and consistent with industry standard engineering and safety codes.

1. A utility operator that provides or transmits or allows the provision or transmission of utility services and other services over its facilities is subject to the license and right-of-way fee requirements of this chapter for the portion of the facilities and extent of utility services delivered over those facilities. Nothing in this subsection (J)(1) requires a utility operator to pay the license, registration or right-of-way fee requirements owed to the City by a third party using the utility operator’s facilities.

2. A utility operator that provides or transmits more than one utility service over its facilities is not required to obtain a separate license or franchise for each utility service; provided, that it gives notice to the City of each utility service provided or transmitted and pays the applicable rights-of-way fee for each utility service.

K. Transfer or Assignment. Unless exempted by applicable State and Federal laws, the licensee shall obtain the written consent of the City prior to the transfer or assignment of the license. The license shall not be transferred or assigned unless the proposed transferee or assignee is authorized under all applicable laws to own or operate the utility system and the transfer or assignment is approved by all agencies or organizations required or authorized under Federal and state laws to approve such transfer or assignment. If a license is transferred or assigned, the transferee or assignee shall become responsible for fulfilling all the obligations under the license with respect to all facilities of the licensee at the time of transfer or assignment. A transfer or assignment of a license does not extend the term of the license.

L. Renewal. At least 90, but no more than 180, days prior to the expiration of a license granted pursuant to this section, a licensee seeking renewal of its license shall submit a license application to the City, including all information required in subsection B of this section and the application fee required in subsection C of this section. The City shall review the application as required by subsection D of this section and grant or deny the license within 90 days of submission of the application. If the City determines that the licensee is in violation of the terms of this chapter at the time it submits its application, the City may require that the licensee cure the violation or submit a detailed plan to cure the violation within a reasonable period of time, as determined by the City, before the City will consider the application or grant the license. If the City requires the licensee to cure or submit a plan to cure a violation, the City will grant or deny the license application within 90 days of confirming that the violation has been cured or of accepting the licensee’s plan to cure the violation.

1. Revocation or Termination of a License. The city council may terminate or revoke the license granted pursuant to this chapter for any of the following reasons:

a. Violation of any of the provisions of this chapter;

b. Violation of any provision of the license;

c. Misrepresentation in a license application;

d. Failure to pay taxes, compensation, fees or costs due the City after final determination of the taxes, compensation, fees or costs;

e. Failure to restore the rights-of-way after construction as required by this chapter or other applicable State and local laws, ordinances, rules and regulations;

f. Failure to comply with technical, safety and engineering standards related to work in the rights-of-way; or

g. Failure to obtain or maintain any and all licenses, permits, certifications and other authorizations required by State or Federal law for the placement, maintenance or operation of the utility facilities.

2. Standards for Revocation or Termination. In determining whether termination, revocation or some other sanction is appropriate, the following factors shall be considered:

a. Whether the violation was intentional;

b. The egregiousness of the violation;

c. The harm that resulted;

d. The utility operator’s history of compliance; and

e. The utility operator’s cooperation in discovering, admitting and curing the violation.

3. Notice and Cure. The City shall give the utility operator written notice of any apparent violations before terminating a license. The notice shall include a clear and concise statement of the nature and general facts of the violation or noncompliance and provide a reasonable time (no less than 20 and no more than 40 days) for the utility operator to demonstrate that the utility operator has remained in compliance, that the utility operator has cured or is in the process of curing any violation or noncompliance, or that it would be in the public interest to impose a penalty or sanction less than termination or revocation. If the utility operator is in the process of curing a violation or noncompliance, the utility operator must demonstrate that it acted promptly and continues to actively work on compliance. If the utility operator does not respond, the Public Works Director shall refer the matter to the city council, which shall provide a duly noticed public hearing to determine whether the license shall be terminated or revoked. [BC 4.15.070, added by Ordinance No. 4684, 5/4/16]