Title 3
REVENUE AND FINANCE
Chapters:
3.04 PRIVILEGE TAX – ELECTRICAL POWER AND LIGHT BUSINESS
3.04.010 Definitions.
3.04.020 Amount of tax.
3.04.030 Payment.
3.04.040 Exceptions and deductions.
3.04.050 Books of account.
3.04.060 Failure to make return.
3.04.070 Liens.
3.04.080 Waiver of free service.
3.08 SPECIAL FUNDS
3.08.010 Library sinking fund.
3.08.130 Olive E. Manela trust fund – Established.
3.08.140 Olive E. Manela trust fund – City acceptance – Use specified.
3.08.230 Bancroft bonds redemption fund – Created – Deposits and expenditures authorized.
3.14 TRANSIENT ROOM TAX
3.14.010 Title.
3.14.020 Definitions.
3.14.025 Small establishments exempted.
3.14.030 Repealed.
3.14.040 Imposition.
3.14.050 Exemptions.
3.14.060 Operator – Registration.
3.14.070 Operator – Certificate of authority.
3.14.080 Operator – Duties.
3.14.090 Operator – Recordkeeping.
3.14.100 Operator – Collection.
3.14.110 Due date – Returns and payments.
3.14.120 Penalties and interest.
3.14.130 Deficiency determination.
3.14.140 Redetermination.
3.14.150 Security for collection.
3.14.160 Lien.
3.14.170 Refunds.
3.14.180 Examination of records and investigations.
3.14.190 Disclosure of confidential information.
3.14.230 Appeals to City Council.
3.14.240 Enforcement.
3.14.250 Violations – Designated.
3.14.260 Violations – Penalty.
3.16 REFUNDS
3.16.010 Refunds.
3.16.020 Voucher.
3.18 TCI CABLEVISION FRANCHISE (Repealed)
3.20 QWEST TELEPHONE FRANCHISE
3.20.010 Granted.
3.20.020 Excavations – Compliance required.
3.20.030 Street repair – Expense responsibility.
3.20.040 Improvements – Utility obstruction prohibited.
3.20.050 Cables, wires – Rearrangement – Notice.
3.20.060 Payment.
3.20.070 Other fees and charges.
3.20.080 Reporting of funds.
3.20.090 Compliance with other laws.
3.20.100 Indemnification.
3.20.110 Continuation – Termination.
3.24 BURLINGTON NORTHERN (OREGON-WASHINGTON), INC. FRANCHISE
3.24.010 Granted – Area designated – Laying track.
3.24.020 Communication and power lines and systems.
3.24.030 Excavations.
3.24.040 Operation of cars.
3.24.050 Crossing protective devices.
3.24.060 Repair and maintenance of streets.
3.24.070 Motive power.
3.24.080 Speed limit.
3.24.090 City laying of public utility services.
3.24.100 Term.
3.24.110 Acceptance deadline.
3.26 COMCAST TELECOMMUNICATION FRANCHISE
Article I. General Provisions
3.26.010 Franchise granted.
3.26.020 Definitions.
3.26.030 Grant of authority.
3.26.040 Periodic review.
3.26.050 Rules of construction.
3.26.060 Severability and constitutionality.
3.26.070 Commercial impracticability.
3.26.080 Competitive equity.
Article II. Service
3.26.090 Continuous service.
3.26.100 Emergency repair service.
3.26.110 Justified service.
3.26.120 Extension of service.
3.26.130 Levels of service.
Article III. Construction
3.26.140 Rearrangement of facilities to permit moving of buildings and other objects.
3.26.150 Public works and improvement not affected by franchise.
3.26.160 Control of construction.
Article IV. Use of Public Ways
3.26.170 Excavation and restoration.
3.26.180 Relocation of facilities.
3.26.190 Tree trimming.
3.26.200 Use of poles.
3.26.210 Use of bridges and public places by Franchisee.
3.26.220 Emergency removal and alternate routing of facilities.
Article V. Rules and Regulations
3.26.230 Compliance with laws, rules, and regulations.
3.26.240 Safety standards and work specifications.
3.26.250 Franchisee rules.
3.26.260 Discriminatory practices prohibited.
3.26.270 Sale of subscriber lists prohibited.
3.26.280 Right to inspect books.
3.26.290 Maps.
3.26.300 Reports and records.
3.26.310 Duration, renewal, and renegotiation.
3.26.320 Collection facilities.
3.26.330 Assignment of franchise – Sale of franchise.
Article VI. Insurance, Bonding, and Penalties
3.26.340 Insurance.
3.26.350 Bonds and other surety.
3.26.360 Remedies not exclusive – When requirement waived.
3.26.370 Liquidated damages.
Article VII. Franchise Specifications
3.26.380 Franchise nonexclusive.
3.26.390 Channel capacity.
3.26.400 Rate structure.
3.26.410 Compensation.
3.26.420 Permit and inspection fees.
3.26.430 Public access programming.
3.26.440 Technical standards.
3.26.450 City right in franchise.
3.26.460 Complaint procedures and inquiries.
3.26.470 Misdemeanors.
3.26.480 Rate regulation.
3.26.490 Force majeure.
3.26.500 Nonlitigation.
3.26.510 Nonenforcement by the City.
3.26.520 Descriptive headings.
3.26.530 Calculation of time.
3.26.540 Written notice.
3.28 ALBANY-LEBANON SANITATION COMPANY FRANCHISE
3.28.010 Short title.
3.28.020 Purpose, policy and scope.
3.28.030 Definitions.
3.28.040 Franchise and exceptions.
3.28.050 Franchise term.
3.28.060 Franchise fee.
3.28.070 Franchisee responsibility.
3.28.080 Supervision.
3.28.090 Suspension, modification or revocation of franchise.
3.28.100 Preventing interruption of service.
3.28.110 Termination of service.
3.28.120 Subcontracts.
3.28.130 Rates.
3.28.140 Public responsibility.
3.28.150 Construction.
3.28.160 Penalties for violation.
3.28.170 City enforcement.
3.30 LONG DISTANCE TELECOMMUNICATIONS COMPANY FRANCHISE
3.30.010 Definitions.
3.30.020 Granted.
3.30.030 Communication facilities placement – Excavations.
3.30.040 Public improvements.
3.30.050 Communication facilities removal.
3.30.060 Removal, rearrangement – Communication facilities.
3.30.070 Facilities maintenance.
3.30.080 Indemnification clause.
3.30.090 Franchise fee.
3.30.100 Statement of payment.
3.30.110 Term of franchise.
3.40 AT&T CORP. TELECOMMUNICATIONS FRANCHISE
3.40.010 Franchise granted.
3.40.020 Excavations and construction.
3.40.030 Tree trimming.
3.40.040 Use of poles.
3.40.050 Construction and performance bond – Liability insurance.
3.40.060 Rearrangement of facilities to permit moving of building and other objects.
3.40.070 Street repair – Expense responsibility.
3.40.080 Improvements – Utility obstruction prohibited.
3.40.090 Emergency removal and alternate routing of facilities.
3.40.100 Cables, wires – Rearrangement – Notice.
3.40.110 Compliance with laws, rules and regulations.
3.40.120 Sale of subscriber lists prohibited.
3.40.130 Payment.
3.40.140 Other fees and charges.
3.40.150 Reporting of funds.
3.40.160 Indemnification.
3.40.170 Continuation – Termination.
3.40.180 Forfeiture and remedies.
3.40.190 Severability.
3.40.200 Attorneys’ fees.
3.40.210 Successors and assigns.
3.40.220 Franchise nonexclusive.
3.50 MCI WORLDCOM NETWORK SERVICES, INC.
3.50.010 Franchise granted.
3.50.020 Excavations and construction.
3.50.030 Tree trimming.
3.50.040 Use of poles.
3.50.050 Construction and performance bond – Liability insurance.
3.50.060 Notice of additions.
3.50.070 Street repair – Expense responsibility.
3.50.080 Improvements – Utility obstruction prohibited.
3.50.090 Emergency removal and alternate routing of facilities.
3.50.100 Cables, wires – Rearrangement – Notice.
3.50.110 Compliance with laws, rules and regulations.
3.50.120 Sale of subscriber lists prohibited.
3.50.130 Payment.
3.50.140 Other fees and charges.
3.50.150 Reporting of funds.
3.50.160 Indemnification.
3.50.170 Continuation – Termination.
3.50.180 Forfeiture and remedies.
3.50.190 Severability.
3.50.200 Attorneys’ fees.
3.50.210 Successors and assigns.
3.50.220 Franchise nonexclusive.
3.60 ADVANCED TELECOM, INC., FRANCHISE
3.60.010 Franchise granted.
3.60.020 Excavations and construction.
3.60.030 Tree trimming.
3.60.040 Use of poles.
3.60.050 Construction and performance bond – Liability insurance.
3.60.070 Street repair – Expense responsibility.
3.60.080 Improvements – Utility obstruction prohibited.
3.60.090 Emergency removal and alternate routing of facilities.
3.60.100 Cables, wires – Rearrangement – Notice.
3.60.110 Compliance with laws, rules, and regulations.
3.60.120 Sale of subscriber lists prohibited.
3.60.130 Payment.
3.60.135 Abandonment.
3.60.140 Other fees and charges.
3.60.150 Reporting of funds.
3.60.160 Indemnification.
3.60.170 Continuation – Termination.
3.60.180 Forfeiture and remedies.
3.60.190 Severability.
3.60.200 Attorneys’ fees.
3.60.210 Successors and assigns.
3.60.220 Franchise nonexclusive.
3.70 LIGHTSPEED (LS) NETWORKS FRANCHISE
3.70.010 Franchise granted.
3.70.020 Excavations and construction.
3.70.030 Tree trimming.
3.70.040 Use of poles.
3.70.050 Construction and performance bond – Liability insurance.
3.70.070 Street repair – Expense responsibility.
3.70.080 Improvements – Utility obstruction prohibited.
3.70.090 Emergency removal and alternate routing of facilities.
3.70.100 Cables, wires – Rearrangement – Notice.
3.70.110 Compliance with laws, rules, and regulations.
3.70.120 Sale of subscriber lists prohibited.
3.70.130 Payment.
3.70.135 Abandonment.
3.70.140 Other fees and charges.
3.70.150 Reporting of funds.
3.70.160 Indemnification.
3.70.170 Continuation – Termination.
3.70.180 Forfeiture and remedies.
3.70.190 Severability.
3.70.200 Attorneys’ fees.
3.70.210 Successors and assigns.
3.70.220 Franchise nonexclusive.
Chapter 3.04
PRIVILEGE TAX – ELECTRICAL POWER AND LIGHT BUSINESS
Sections:
3.04.010 Definitions.
3.04.020 Amount of tax.
3.04.030 Payment.
3.04.040 Exceptions and deductions.
3.04.050 Books of account.
3.04.060 Failure to make return.
3.04.070 Liens.
3.04.080 Waiver of free service.
3.04.010 Definitions.
In construing the provisions of this chapter, the following definitions shall be applied, unless otherwise stated:
(1) “Person” means any company, corporation, association, partnership or individual.
(2) “Taxpayer” means any person subject to the payment of the tax herein provided.
(3) “Electrical power and light business” means the business of selling, at wholesale or retail, electrical energy.
(4) “Gross operating revenue” means revenue accruing from the electrical power business transacted within the corporate limits of the City. In case the taxpayer is a public utility, subject to regulation under the statutes of Oregon, gross operating revenue means that amount required to be credited by the taxpayer to the taxpayer’s operation within the City under the uniform system of accounts prescribed by the regulatory body of the State having jurisdiction. There shall be no deduction for the cost of commodity, cost of materials used, labor, interest, discount, delivery costs and other expenses, unless otherwise provided in this chapter. (Ord. 3404 § 1, 1969).
3.04.020 Amount of tax.
The occupational tax upon the electric light and power business for the privilege of engaging in business within the City is hereby continued. The tax shall be in an amount equal to five percent of the gross revenue of the business during the calendar month next preceding the date of payment of tax, less the deductions and exclusions herein provided. (Ord. 4961 § 1, 1991; Ord. 4884 § 1, 1989; Ord. 3404 § 2, 1969).
3.04.030 Payment.
The tax shall be payable on or before January 31, 1990 for calendar year 1989. On February 20, 1990 the tax for the month of January 1990 shall be paid and shall be paid monthly thereafter on the 20th of each month for the preceding month. The taxpayer shall furnish to the City with each payment a written statement showing the amount of gross revenue of the taxpayer within the City for the period covered by the payment. (Ord. 4884 § 1, 1989; Ord. 3404 § 3, 1969).
3.04.040 Exceptions and deductions.
There shall be excepted and deducted from the total gross operating revenues, revenues derived from the sale of electric energy at wholesale in interstate commerce or from business done with the government of the United States, or any agency thereof, and after deducting therefrom all uncollectible revenues within the City and any amounts paid to the United States or the State of Oregon as excise, occupation or business taxes upon the sale or distribution of electric service in the City. (Ord. 3404 § 4, 1969).
3.04.050 Books of account.
Each taxpayer shall keep books of account which properly reflect the amount of gross operating revenue. The books of account shall be open to the inspection of the City Manager for the purpose of verifying the required amount of tax to be paid. (Ord. 3404 § 5, 1969).
3.04.060 Failure to make return.
If the taxpayer fails to make a return or the City Manager is dissatisfied as to the correctness of the return, the City Manager may fix a time and place for the investigation of the incorrectness of the return, and may, by subpoena, require the taxpayer to produce for investigation such books of account as may be necessary to properly ascertain the amount of tax due. After ascertaining the proper amount of taxes due, the City Manager shall notify the taxpayer of his/her findings. If additional tax is due and is not paid within 10 days after receipt of the notice, the City Manager shall notify the City Attorney to enforce collection of the same. It is unlawful for any person liable to tax hereunder to fail to make a return or to fail to pay the tax when due, or for any person to make any false or fraudulent return or false statement or representations in connection with any such return or to allow or to abet another in any attempt to evade payment of tax or failure to appear and testify in response to a subpoena issued in pursuance hereto, or to testify falsely upon any investigation of the correctness of a return, or in any manner to hinder or delay the City or any of its officers in carrying out the provisions of this chapter. (Ord. 5013 § 1, 1992; Ord. 3404 § 6, 1969).
3.04.070 Liens.
The tax herein assessed shall be a lien against all taxable property of the person located in the City and shall be subject to collection in like manner as liens for special assessments for improvements on property located within the City. (Ord. 3404 § 7, 1969).
3.04.080 Waiver of free service.
The City, by imposing this occupational tax, hereby waives, relinquishes and releases any and all rights it may have under the terms of any existing franchise for free service from any utility engaged in the electrical power and light business within the corporate limits of the City. (Ord. 5013 § 1, 1992; Ord. 3404 § 9, 1969).
Chapter 3.08
SPECIAL FUNDS
Sections:
3.08.010 Library sinking fund.
3.08.130 Olive E. Manela trust fund – Established.
3.08.140 Olive E. Manela trust fund – City acceptance – Use specified.
3.08.230 Bancroft bond redemption fund – Created – Deposits and expenditures authorized.
3.08.010 Library sinking fund.
There is hereby created a fund which shall be known as the “Library Memorial Fund” for the purpose of receiving moneys and making expenditures therefrom which shall be used for the purchase of memorial books to be selected by the librarian or the Library Board. (Ord. 5013 § 1, 1992; Ord. 2826 § 1, 1961).
3.08.130 Olive E. Manela trust fund – Established.
There is established a trust to be known as the “Olive E. Manela Trust.” (Ord. 3849 § 1, 1975).
3.08.140 Olive E. Manela trust fund – City acceptance – Use specified.
The City does accept the devise and bequest of Olive E. Manela with the income from the trust to be used for the purchase of educational, scientific and religious works. The selection of the books and tracts acquired shall be made by the librarian and subject to the approval of the members of the Library Board. (Ord. 3849 § 2, 1975).
3.08.230 Bancroft bond redemption fund – Created – Deposits and expenditures authorized.
(1) There is created a fund which shall be known as the “Bancroft Bond Redemption Fund” for the purpose of receiving money paid on account of installments and interest on unpaid installments and disbursements to satisfy interest and principal due on improvement funds as authorized under ORS 223.285.
(2) The City Recorder is directed to place all money received through Bancroft bonding in the fund herein created, and to make expenditures for interest and principal from the fund. (Ord. 5013 § 1, 1992; Ord. 4122 §§ 1, 2, 1978).
Chapter 3.14
TRANSIENT ROOM TAX
Sections:
3.14.010 Title.
3.14.020 Definitions.
3.14.025 Small establishments exempted.
3.14.030 Repealed.
3.14.040 Imposition.
3.14.050 Exemptions.
3.14.060 Operator – Registration.
3.14.070 Operator – Certificate of authority.
3.14.080 Operator – Duties.
3.14.090 Operator – Recordkeeping.
3.14.100 Operator – Collection.
3.14.110 Due date – Returns and payments.
3.14.120 Penalties and interest.
3.14.130 Deficiency determination.
3.14.140 Redetermination.
3.14.150 Security for collection.
3.14.160 Lien.
3.14.170 Refunds.
3.14.180 Examination of records and investigations.
3.14.190 Disclosure of confidential information.
3.14.230 Appeals to City Council.
3.14.240 Enforcement.
3.14.250 Violations – Designated.
3.14.260 Violations – Penalty.
3.14.010 Title.
The ordinance codified in this chapter shall be known as the “Transient Room Tax Ordinance” of the City. (Ord. 4080 § 1, 1977).
3.14.020 Definitions.
Except where the context otherwise requires, the definitions given in this section govern the construction of the chapter:
(1) “Accrual accounting” means the operator enters the rent due from a transient on his/her records when the rent is earned whether or not it is paid.
(2) “Cash accounting” means the operator does not enter the rent due from a transient on his/her records until rent is paid.
(3) “City Council” means the City Council of the City of Albany, Oregon.
(4) “Hotel” means any structure, or any portion of any structure, which is occupied or intended or designed for transient occupancy for 30 days or less for dwelling, lodging or sleeping purposes, and includes any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodginghouse, roominghouse, apartment house, public or private club, space in mobile home or trailer parks, or similar structure or portions thereof so occupied, provided such occupancy is for less than a 30-day period.
(5) “Occupancy” means the use or possession or the right to the use or possession for lodging or sleeping purposes of any room or rooms in a hotel or space in a mobile home or trailer park or portion thereof.
(6) “Operator” means the person who is proprietor of the hotel in any capacity. Where the operator performs his/her functions through a managing agent of any type or character other than an employee, the managing agent shall also be deemed an operator for the purposes of this chapter and shall have the same duties and liabilities as his/her principal. Compliance with the provisions of this chapter by either the principal or the managing agent shall be considered to be compliance by both.
(7) “Person” means any individual, firm, partnership, joint venture, association, social club, fraternal organization, fraternity, sorority, public or private dormitory, joint stock company, corporation, estate, trust, business trust, receiver, trustee, syndicate or any other group or combination acting as a unit.
(8) “Rent” means the consideration charged, whether or not received by the operator, for the occupancy of space in a hotel valued in money, goods, labor, credits, property or other consideration valued in money less discounts for seniors, AAA, Good Sam Club, etc.
(9) “Rent package plan” means the consideration charged for both food and rent where a single rate is made for the total of both. The amount applicable to rent for determination of transient room tax under this chapter shall be the same charge made for rent when consideration is not a part of a package plan.
(10) “Tax” means either the tax payable by the transient or the aggregate amount of taxes due from an operator during the period for which he/she is required to report his/her collections.
(11) “Tax Administrator” means the Finance Director of the City.
(12) “Transient” means any individual who exercises occupancy or is entitled to occupancy in a hotel for a period of 30 consecutive calendar days or less, counting portions of calendar days as full days. The day a transient checks out of the hotel shall not be included in determining the 30-day period if the transient is not charged rent for that day by the operator. Any such individual so occupying space in a hotel shall be deemed to be a transient until the period of 30 days has expired, unless there is an agreement in writing between the operator and the occupant providing for a longer period of occupancy. Any individual so occupying space in a hotel for consecutive days beyond the 30-day period shall no longer be deemed to be a transient. In determining whether a person is a transient, uninterrupted periods of time extending both prior and subsequent to the effective date of the ordinance codified in this chapter may be considered. A person who pays for lodging on a monthly basis, irrespective of the number of days in such month, shall not be deemed a transient. (Ord. 5692 § 1, 2008; Ord. 5013 § 1, 1992; Ord. 4851 § 1, 1989; Ord. 4080 § 2, 1977).
3.14.025 Small establishments exempted.
The definition of hotel or motel as set forth in AMC 3.14.020 shall not apply to any structure or collection of units at one location when the total number of units is less than six or when the assessed value of the improvements on the real property is less than $100,000. In order for this exclusion to apply, it shall be necessary for the owner to make application to the Tax Administrator for the exclusion of being exempt from the provisions of AMC 3.14.040. (Ord. 4851 § 1, 1989; Ord. 4421 § 1, 1981).
3.14.030 Administration of funds.
Repealed by Ord. 5275. (Ord. 5121 § 1, 1994; Ord. 4080 § 16(a), 1977).
3.14.040 Imposition.
For the privilege of occupancy in any hotel, on and after July 1, 1999, each transient shall pay a tax in the amount of nine percent of the rent charged by the operator. The tax constitutes a debt owed by the transient to the City, which is extinguished only by payment to the operator or to the City. The transient shall pay the tax to the operator of the hotel at the time the rent is paid. The operator shall enter the tax on his/her records when rent is collected, if the operator keeps his/her records on the cash accounting basis, and when earned if the operator keeps his/her records on the accrual accounting basis. If rent is paid in installments, a proportionate share of the tax shall be paid by the transient or the operator with each installment. If for any reason the tax due is not paid to the operator of the hotel, the Tax Administrator may require that such tax be paid directly to the City. In all cases, the rent paid or charged for occupancy shall exclude the sale of any goods, services and commodities, other than the furnishing of rooms, accommodations, and parking space in mobile home parks or trailer parks. (Ord. 5400 § 1, 1999; Ord. 5121 § 2, 1994; Ord. 5013 § 1, 1992; Ord. 4693 § 1, 1985; Ord. 4080 § 3, 1977).
3.14.050 Exemptions.
No tax imposed under this chapter shall be imposed upon:
(1) Any occupant for more than 30 successive calendar days. A person who pays for lodging on a monthly basis, irrespective of the number of days in such month, shall not be deemed a transient;
(2) Any occupant whose rent is of a value less than $2.00 per day;
(3) Any person who rents a private home, vacation cabin or like facility from any owner who rents such facilities incidentally to his/her own use thereof;
(4) Any occupant whose rent is paid for a hospital room or to a medical clinic, convalescent home or home for aged people.
(5) Any occupant who is a federal employee traveling on federal business.
(6) Any occupant whose rent is being paid by the Red Cross or other relief organization for temporary emergency housing. (Ord. 5692 § 1, 2008; Ord. 4080 § 6, 1977).
3.14.060 Operator – Registration.
Every person engaging or about to engage in business as an operator of a hotel in the City shall register with the Tax Administrator on a form provided by him/her. Operators engaged in business at the time the ordinance codified in this chapter is adopted must register not later than 30 calendar days after passage of the ordinance codified in this chapter. Operators starting business after the ordinance codified in this chapter is adopted must register within 15 calendar days after commencing business. The privilege of registration after the date of imposition of such tax shall not relieve any person from the obligation of payment or collection of tax regardless of registration. Registration shall set forth the name under which an operator transacts or intends to transact business, the location of his/her place or places of business and such other information to facilitate the collection of the tax as the Tax Administrator may require. The registration shall be signed by the operator. (Ord. 4080 § 7, 1977).
3.14.070 Operator – Certificate of authority.
(1) The Tax Administrator shall, within 10 days after registration, issue without charge a certificate of authority to each registrant to collect the tax from the occupant, together with a duplicate thereof for each additional place of business of each registrant. Certificates shall be nonassignable and nontransferable and shall be surrendered immediately to the Tax Administrator upon the cessation of business at the location named or upon its sale or transfer. Each certificate and duplicate shall state the place of business to which it is applicable and shall be prominently displayed therein so as to be seen and come to the notice readily of all occupants and persons seeking occupancy.
(2) Said certificate shall, among other things, state the following:
(a) The name of the operator;
(b) The address of the hotel;
(c) The date upon which the certificate was issued;
(d) “This Transient Occupancy Registration Certificate signifies that the person named on the face hereof has fulfilled the requirements of the Transient Room Tax Ordinance of the City of Albany by registration with the Tax Administrator for the purpose of collecting from transients the room tax imposed by said City and remitting said tax to the Tax Administrator. This certificate does not authorize any person to conduct any unlawful business or to conduct any unlawful business in any unlawful manner, or to operate a hotel without strictly complying with all local applicable laws including but not limited to those requiring a permit from any board, commission, department or office of the City of Albany. This certificate does not constitute a permit.” (Ord. 5178 § 1, 1995; Ord. 4080 § 7, 1977).
3.14.080 Operator – Duties.
Each operator shall collect the tax imposed by this chapter at the same time as the rent is collected from every transient. The amount of tax shall be separately stated upon the operator’s records, and any receipt rendered by the operator. No operator of a hotel shall advertise that the tax or any part of the tax will be assumed or absorbed by the operator, or that it will not be added to the rent, or that, when added, any part will be refunded, except in the manner provided by this chapter. (Ord. 4080 § 5, 1977).
3.14.090 Operator – Recordkeeping.
Every operator shall keep guest records of room sales and accounting books and records of the room sales. All records shall be retained by the operator for a period of three years and six months after they come into being. (Ord. 4080 § 16(b), 1977).
3.14.100 Operator – Collection.
(1) Every operator renting rooms in the City, the occupancy of which is not exempted under the terms of this chapter, shall collect a tax from the occupant. The tax collected or accrued by the operator constitutes a debt owing by the operator to the City.
(2) In all cases of credit or deferred payment of rent, the payment of tax to the operator may be deferred until the rent is paid, and the operator shall not be liable for the tax until credits are paid or deferred payments are made. (Ord. 5178 § 2, 1995; Ord. 5121 § 3, 1994; Ord. 4693 § 2, 1985; Ord. 4080 § 4(a), (b), (d), 1977).
3.14.110 Due date – Returns and payments.
(1) The tax imposed by this chapter shall be paid by the transient to the operator at the time that rent is paid. All amounts of such taxes collected by any operator are due and payable to the Tax Administrator on a monthly basis on the fifteenth day of the month for the preceding month, and are delinquent on the last day of the month in which they are due.
(2) On or before the fifteenth day of the month following each month of collection, a return for the preceding month’s tax collections shall be filed with the Tax Administrator. The return shall be filed in such form as the Tax Administrator may prescribe by every operator liable for payment of tax.
(3) Returns shall show the amount of tax collected or otherwise due for the related period. The Tax Administrator may require returns to show the total rentals upon which tax was collected or otherwise due, gross receipts of the operator for such period and an explanation in detail of any discrepancy between such amounts and the amount of rents exempt, if any.
(4) After the gross tax has been calculated by the operator, the operator shall retain five percent of the gross tax as compensation for the recordkeeping services provided.
(5) The person required to file the return shall deliver the return, together with the remittance of the amount of the tax due, to the Tax Administrator at his/her office either by personal delivery or by mail. If the return is mailed, the postmark shall be considered the date of delivery for determining delinquencies.
(6) For good cause, the Tax Administrator may extend for not to exceed one month the time for making any return or payment of tax. No further extension shall be granted, except by the City Council. Any operator to whom an extension is granted shall pay interest at the rate of one percent per month on the amount of tax due without proration for a fraction of a month. If a return is not filed and the tax and interest due is not paid by the end of extension granted, then the interest shall become a part of the tax for computation of penalties described elsewhere in this chapter.
(7) The Tax Administrator, if he/she deems it necessary in order to ensure payment or facilitate collection by the City of the amount of taxes in any individual case, may require returns and payment of the amount of taxes for other than monthly periods. (Ord. 5013 § 1, 1992; Ord. 4851 § 1, 1989; Ord. 4727, 1986; Ord. 4080 § 8, 1977).
3.14.120 Penalties and interest.
(1) Original Delinquency. Any operator who has not been granted an extension of time for remittance of tax due and who fails to remit any tax imposed by this chapter prior to delinquency shall pay a penalty of 10 percent of the amount of the tax due in addition to the amount of the tax.
(2) Continued Delinquency. Any operator who has not been granted an extension of time for remittance of tax due and who failed to pay any delinquent remittance on or before a period of 30 days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of 15 percent of the amount of the tax due plus the amount of the tax and the 10 percent penalty first imposed.
(3) Fraud. If the Tax Administrator determines that the nonpayment of any remittance due under this chapter is due to fraud or intent to evade the provisions thereof, a penalty of 25 percent of the amount of the tax shall be added thereto in addition to the penalties stated in subsections (1) and (2) of this section.
(4) Interest. In addition to the penalties imposed, any operator who fails to remit any tax imposed by this chapter shall pay interest at the rate of one-half of one percent per month or fraction thereof without proration for portions of a month on the amount of the tax due, exclusive of penalties, from the date on which the remittance first became delinquent until paid.
(5) Penalties Merged with Tax. Every penalty imposed and such interest as accrues under the provisions of this section shall be merged with and become part of the tax required in this chapter to be paid.
(6) Petition for Waiver. Any operator who fails to remit the tax levied in this chapter within the time stated in this chapter shall pay the penalties stated in this chapter; provided, however, the operator may petition the City Council for waiver and refund of the penalty or any portion thereof, and the City Council may, if a good and sufficient reason is shown, waive and direct a refund of the penalty or any portion thereof. (Ord. 4851 § 1, 1989; Ord. 4080 § 9, 1977).
3.14.130 Deficiency determination.
(1) Computation. If the Tax Administrator determines that the returns are incorrect, he/she may compute and determine the amount required to be paid upon the basis of the facts contained in the return or returns or upon the basis of any information within his/her possession or that may come into his/her possession. One or more deficiency determinations may be made of the amount due for one or more than one period, and the amount so determined shall be due and payable immediately upon service of notice as provided in this chapter after which the amount determined is delinquent. Penalties on deficiencies shall be applied as set forth in AMC 3.14.120.
(2) Underpayments. In making a determination, the Tax Administrator may offset overpayments, if any, which may have been previously made for a period or periods against any underpayment for a subsequent period or periods, or against penalties and interest on the underpayments. The interest on underpayments shall be computed in the manner set forth in AMC 3.14.120.
(3) Service of Notice. The Tax Administrator shall give to the operator or occupant a written notice of his/her determination. The notice may be served personally or by mail. If served by mail, the notice shall be addressed to the operator at his/her address as it appears in the records of the Tax Administrator. In case of service by mail of any notice required by this chapter, the service is complete at the time of deposit in the United States Post Office.
(4) Time Limit. Except in the case of fraud or intent to evade this chapter or authorized rules and regulations, every deficiency determination shall be made and notice thereof mailed within three years after the last day of the month following the close of the monthly period for which the amount is proposed to be determined or within three years after the return is filed, whichever period expires the later.
(5) Redemption Petition. Any determination shall become due and payable immediately upon receipt of notice and shall become final within 10 days after the Tax Administrator has given notice thereof; provided, however, the operator may petition redemption and refund if the petition is filed before the determination becomes final as provided in this chapter.
(6) Fraud, Refusal to Collect, Evasion. If any operator fails or refuses to collect said tax or to make, within the time provided in this chapter, any report and remittance of said tax or any portion thereof required by this chapter, or makes fraudulent return or otherwise wilfully attempts to evade this chapter, the Tax Administrator shall proceed in such manner as he/she may deem best to obtain facts and information on which to base an estimate of the tax due. As soon as the Tax Administrator has determined the tax due that is imposed by this chapter from any operator who has failed or refused to collect the same and to report and remit said tax, he/she shall proceed to determine and assess against such operator the tax, interest and penalties provided for by this chapter. In case such determination is made, the Tax Administrator shall give a notice in the manner described in this chapter of the amount so assessed. Such determination and notice shall be made and mailed within three years after discovery by the Tax Administrator of any fraud, intent to evade or failure or refusal to collect said tax, or failure to file the return. Any determination shall become due and payable immediately upon receipt of notice and shall become final within 10 days after the Tax Administrator has given notice thereof; provided, however, the operator may petition redemption and refund if the petition is filed before the determination becomes final as provided in this chapter.
(7) Operator Delay. If the Tax Administrator believes that the collection of any tax or any
amount of tax required to be collected and paid to the City will be jeopardized by delay, or if any determination will be jeopardized by delay, he/she shall thereupon make a determination of the tax amount required to be collected, noting the fact upon the determination. The amount so determined as provided in this chapter shall be immediately due and payable, and the operator shall immediately pay the same determination to the Tax Administrator after service of notice thereof; provided, however, the operator may petition after payment has been made for redemption and refund of such determination, if the petition is filed within 10 days from the date of service of notice by the Tax Administrator. (Ord. 5013 § 1, 1992; Ord. 4080 § 10, 1977).
3.14.140 Redetermination.
(1) Any person against whom a determination is made under AMC 3.14.130 or any person directly interested may petition for a redetermination of redemption and refund within the time required in AMC 3.14.130. If a petition for redetermination and refund is not filed within the time required in AMC 3.14.130, the determination becomes final at the expiration of the allowable time.
(2) If a petition for redetermination and refund is filed within the allowable period, the Tax Administrator shall reconsider the determination and, if the person has so requested in his/her petition, shall grant the person an oral hearing and shall give him/her 10 days’ notice of the time and place of the hearing. The Tax Administrator may continue the hearing from time to time as may be necessary.
(3) The Tax Administrator may decrease or increase the amount of the determination as a result of the hearing, and if an increase is determined, such increase shall be payable immediately after the hearing.
(4) The order or decision of the Tax Administrator upon a petition for redetermination of redemption and refund becomes final 10 days after service upon the petitioner of notice thereof, unless appeal of such order or decision is filed with the City Council within the 10 days after service of such notice.
(5) No petition for redetermination of redemption and refund or appeal therefrom shall be effective for any purpose unless the operator has first complied with the payment provisions of this chapter. (Ord. 5013 § 1, 1992; Ord. 4851 § 1, 1989; Ord. 4080 § 11, 1977).
3.14.150 Security for collection.
(1) The Tax Administrator, whenever he/she deems it necessary to ensure compliance with this chapter, may require any operator subject thereto to deposit with him/her such security in the form of cash, bond or other security as the Tax Administrator may determine. The amount of the security shall be fixed by the Tax Administrator but shall not be greater than twice the operator’s estimated average monthly liability for the period for which he/she files returns, determined in such manner as the Tax Administrator deems proper, or $20,000, whichever amount is the lesser. The amount of the security may be increased or decreased by the Tax Administrator subject to the limitations provided in this chapter.
(2) At any time within three years after any tax or any amount of tax required to be collected becomes due and payable or at any time within three years after any determination becomes final, the Tax Administrator may bring an action in the courts of this State, or any other state, or of the United States in the name of the City to collect the amount delinquent, together with penalties and interest. (Ord. 5178 § 3, 1995; Ord. 5013 § 1, 1992; Ord. 4080 § 12, 1977).
3.14.160 Lien.
The tax imposed by this chapter, together with the interest and penalties provided in this chapter and the filing fees paid to the Department of Records of Linn County, Oregon, or Benton County, Oregon, and advertising costs which may be incurred when the same becomes delinquent as set forth in this chapter, shall be and, until paid, remain a lien from the date of its recording with the Department of Records of Linn County, Oregon or Benton County, Oregon and shall be superior to all subsequent recorded liens on all tangible personal property used in the hotel of an operator within the City and may be necessary to discharge said lien, if the lien has been recorded with the Department of Records of Linn County, Oregon or Benton County, Oregon. Notice of the lien may be issued by the Tax Administrator or his/her deputy whenever the operator is in default in the payment of said tax, interest and penalty and shall be recorded with the Department of Records of Linn County, Oregon or Benton County, Oregon, and a copy sent to the delinquent operator. The personal property subject to such lien seized by any deputy or employee of the Tax Administrator may be sold by the department seizing the same at public auction after 10 days’ notice, which shall mean one publication in a newspaper published in the City.
Any lien for taxes as shown on the records of the proper county official shall, upon the payment of all taxes, penalties and interest thereon, be released by the Tax Administrator when the full amount determined to be due has been paid to the City and the operator or person making such payment has received a receipt therefor stating that the full amount of taxes, penalties and interest thereon have been paid and that the lien is thereby released and the record of lien is satisfied. (Ord. 5121 § 4, 1994; Ord. 4080 § 13, 1977).
3.14.170 Refunds.
(1) Operator Refunds. Whenever the amount of any tax, penalty or interest has been paid more than once or has been erroneously or illegally collected or received by the Tax Administrator under this chapter, it may be refunded, provided a verified claim in writing therefor stating the specific reason upon which the claim is founded is filed with the Tax Administrator within three years from the date of payment. The claim shall be made on forms provided by the Tax Administrator. If the claim is approved by the Tax Administrator, the excess amount collected or paid may be refunded or may be credited on any amounts then due and payable from the operator from whom it was collected or by whom paid, and the balance may be refunded to such operator, his/her administrators, executors or assignees. All refunds shall be charged to the Transient Room Tax Fund set forth in Section 3.14.030.
(2) Transient Refunds. Whenever the tax required by this chapter has been collected by the operator and deposited by the operator with the Tax Administrator, and it is later determined that the tax was erroneously or illegally collected or received by the Tax Administrator, it may be refunded by the Tax Administrator to the transient, provided a verified claim in writing therefor stating the specific reason on which the claim is founded is filed with the Tax Administrator within three years from the date of payment. All refunds shall be charged to the transient room tax fund set forth in Section 3.14.030. (Ord. 4080 § 14, 1977).
3.14.180 Examination of records and investigations.
The Tax Administrator or any person authorized in writing by him/her may examine during normal business hours the books, papers and accounting records relating to room sales of any operator after notification to the operator liable for the tax and may investigate the business of the operator in order to verify the accuracy of any return made or, if no return is made by the operator, to ascertain and determine the amount required to be paid. (Ord. 5013 § 1, 1992; Ord. 4080 § 16(c), 1977).
3.14.190 Disclosure of confidential information.
It is unlawful for the Tax Administrator or any person having an administrative or clerical duty under the provisions of this chapter to make known in any manner whatever the business affairs, operations or information obtained by an investigation of records and equipment of any person required to obtain a transient occupancy registration certificate or pay a transient occupancy tax, or any other person visited or examined in the discharge of official duty, or the amount or source of income, profits, losses, expenditures or any particular thereof set forth in any statement or application, or to permit any statement or application, or copy of either, or any book containing any abstract or particulars thereof to be seen or examined by any person; provided that nothing in this section shall be construed to prevent:
(1) The disclosure to or the examination of records and equipment by another City official, employee or agent for collection of taxes for the sole purposes of administering or enforcing any provisions of the chapter or collecting taxes imposed under this chapter;
(2) The disclosure after the filing of a written request to that effect, to the taxpayer himself/herself, receivers, trustees, executors, administrators, assignees and guarantors, if directly interested, of information as to any paid tax, any unpaid tax or amount of tax required to be collected, or interest, and penalties; further provided, however, that the City Attorney approves each such disclosure and that the Tax Administrator may refuse to make any disclosure referred to in this subsection when in his/her opinion the public interest would suffer thereby;
(3) The disclosure of the names and addresses of any persons to whom transient occupancy registration certificates have been issued;
(4) The disclosure of general statistics regarding taxes collected or business done in the City. (Ord. 4080 § 16(d), 1977).
3.14.230 Appeals to City Council.
Any person aggrieved by any decision of the Tax Administrator may appeal to the City Council by filing a notice of appeal with the Tax Administrator within 10 days of the serving or the mailing of the notice of the decision given by the Tax Administrator. The Tax Administrator shall transmit said notice of appeal, together with the file of said appealed matter, to the City Council, who shall fix a time and place for hearing such appeal. The City Council shall give the appellant not less than 10 days’ written notice of the time and place of the hearing of said appealed matter. Action by the City Council on appeals shall be decided by a majority of the members of the Council present at the meeting where such appeal is considered. (Ord. 5178 § 3, 1995; Ord. 4851 § 1, 1989; Ord. 4080 § 19, 1977).
3.14.240 Enforcement.
The Tax Administrator shall enforce provisions of this chapter and shall have the power to adopt rules and regulations not inconsistent with this chapter as may be necessary to aid in the enforcement. (Ord. 4080 § 4(c), 1977).
3.14.250 Violations – Designated.
It is unlawful for any operator or other person so required to fail or refuse to furnish a supplemental return or other data required by the Tax Administrator or to render a false or fraudulent return. No person required to make, render, sign or verify any report shall make any false or fraudulent report with intent to defeat or evade the determination of any amount due required by this chapter. (Ord. 4080 § 21, 1977).
3.14.260 Violations – Penalty.
Any person wilfully violating any of the provisions of this chapter shall be guilty of a misdemeanor punishable under the general penalty provided for in Chapter 1.04 AMC. (Ord. 5013 § 1, 1992; Ord. 4080 § 22, 1977).
Chapter 3.16
REFUNDS
Sections:
3.16.010 Refunds.
3.16.020 Voucher.
3.16.010 Refunds.
The City Manager, or his/her designee, is authorized to make refunds of payments made to the account of the City when such payments have been made in error or the reason for the payment did not exist and such payment shall be charged against the particular fund receiving the payment. (Ord. 5013 § 1, 1992; Ord. 3575 § 1, 1971).
3.16.020 Voucher.
All refunds authorized by the City Manager as herein provided shall be supported by vouchers signed by the City Manager. (Ord. 3575 § 2, 1971).
Chapter 3.18
TCI CABLEVISION FRANCHISE
(Repealed by Ord. 5687)
Chapter 3.20
QWEST TELEPHONE FRANCHISE1
Sections:
3.20.010 Granted.
3.20.020 Excavations – Compliance required.
3.20.030 Street repair – Expense responsibility.
3.20.040 Improvements – Utility obstruction prohibited.
3.20.050 Cables, wires – Rearrangement – Notice.
3.20.060 Payment.
3.20.070 Other fees and charges.
3.20.080 Reporting of funds.
3.20.090 Compliance with other laws.
3.20.100 Indemnification.
3.20.110 Continuation – Termination.
3.20.010 Granted.
There is hereby granted by the City of Albany, hereinafter referred to as “City,” to Qwest, their successors and assigns, hereinafter each referred to as “Grantee,” the right and privilege to do a general communication business within the City and to place, erect, lay, maintain and operate in, upon, over and under streets, alleys, avenues, thoroughfares and public highways, places and grounds within the City, poles, wires and other appliances and conductors for all telephone, telegraph and other communication purposes. Such wires and other appliances and conductors may be strung upon poles or other fixtures above ground, or at the option of the Grantee, its successors and assigns, may be laid underground, and such other apparatus may be used as may be necessary or proper to operate and maintain the same. Notwithstanding the foregoing, the City Manager or his/her designee shall have the authority to prescribe which public ways will be used and the location of communications facilities within the public way as may be reasonably necessary to minimize public inconvenience. (Ord. 5470, 2001; Ord. 5349 § 1, 1998; Ord. 4919 § 1, 1990).
3.20.020 Excavations – Compliance required.
It shall be lawful for Grantee, to make all needful excavations in any of such streets, alleys, avenues, thoroughfares and public highways, places and grounds in the City for the purpose of placing, erecting, laying and maintaining poles, or other supports or conduits for said wires and appliances and auxiliary apparatus or repairing, renewing or replacing the same. Said work shall be done in compliance with the necessary rules, regulations, ordinances or orders, which may during the continuance of this franchise be adopted from time to time by the City. (Ord. 4919 § 1, 1990).
3.20.030 Street repair – Expense responsibility.
Whenever Grantee shall disturb any of the streets for the purpose aforesaid, it or they shall restore the same to good order and condition as soon as practicable without unnecessary delay, and failing to do so the City shall have the right to fix a reasonable time within which such repairs and restoration of streets shall be completed, and upon failure of such repairs being made by said company, its successors and assigns, the City shall cause such repairs to be made at the expense of Grantee. (Ord. 4919 § 1, 1990).
3.20.040 Improvements – Utility obstruction prohibited.
Nothing in this chapter shall be construed in any way to prevent the proper authorities of the City from sewering, grading, planking, rocking, paving, repairing, altering, or improving any of the streets, alleys, avenues, thoroughfares, and public highways, places and grounds within the City in or upon which the poles, wires or other conductors of Grantee shall be placed, but all such work or improvements shall be done if possible so as not to obstruct or prevent the free use of said poles, wires, conductors, conduits, pipes, or other apparatus, and the moving of company facilities, where required due to such work by the City, will be done by Grantee without cost to the City. However, any such work done for or at the request of a private individual, entity, developer or development shall be done at the expense of such private individual, entity, developer or development. (Ord. 4919 § 1, 1990).
3.20.050 Cables, wires – Rearrangement – Notice.
Whenever it becomes necessary to temporarily rearrange, remove, lower or raise the aerial cables or wires or other apparatus of the Grantee to permit the passage of any building, machinery or other object, the said Grantee will perform such rearrangment within a reasonable period after written notice from the person or persons desiring to move said building, machinery or other objects. Said notice shall bear the approval of such official as Council may designate, shall detail the route of movement of the building, machinery or other objects, shall provide that the costs of such rearrangement shall be borne by the person or persons giving said notice and shall further provide that the person or persons giving said notice will indemnify and save Grantee harmless of and from any and all damages or claims of whatsoever kind or nature caused directly or indirectly from such temporary rearrangement of the aerial plant of the Grantee, and, if required by Grantee, shall be accompanied by a cash deposit or a good and sufficient bond to pay any and all costs as estimated by Grantee. (Ord. 4919 § 1, 1990).
3.20.060 Payment.
Effective July l, 2000, and until the franchise’s expiration, said Grantee shall pay to the City, monthly, seven percent of its gross revenues derived from exchange access services, as defined in ORS 401.710, within the corporate limits of the City, less net uncollectibles. This franchise fee shall be deposited in the U.S. mail, postage prepaid, addressed to the Assistant City Manager/Administrative Services Director of the City and postmarked on or before the last business day of the month following the month for which the payment is due. If a payment is not mailed by the date set forth above, the payment shall be deemed delinquent and shall accrue interest at the rate of nine percent per annum from the date of the applicable reporting period. The franchise payments made by the Grantee will be accepted by the City from the Grantee, also in payment of any separate fees that are imposed by the City on Grantee for street openings, construction, inspection or maintenance of fixtures or facilities. However, Grantee shall not deduct charges and penalties imposed by the City for noncompliance with charter provisions, ordinances, resolutions, or permit conditions from the franchise fee required by this chapter. (Ord. 5470, 2001; Ord. 5349 § 1, 1998; Ord. 4919 § 1, 1990).
3.20.070 Other fees and charges.
Nothing in this chapter shall give the Grantee any credit against any nondiscriminatory business tax to the extent such tax applies to revenues other than those revenues that are the subject of the franchise fee, or any ad valorem property tax now or hereafter levied against real property or personal property within the City, or against any local improvement assessments levied on the Grantee’s property. (Ord. 4919 § 1, 1990).
3.20.080 Reporting of funds.
With each franchise fee payment, the Grantee shall furnish a sworn statement from the Chief Finance Officer or designee, setting forth the amount and calculation of the payment. The statement shall detail the gross revenues subject to tax received by the Grantee from its operations within the City, and shall specify the nature and amount of all exclusions and deductions from such revenue claimed by the Grantee in calculating the franchise fee.
The City Manager of the City may require the Grantee to provide any additional information reasonably necessary for administration of the franchise fee. The Grantee shall keep available and open to inspection by the City Manager of the City, during regular office hours, all accounts, books, and other records reasonably necessary for ascertaining the franchise liability.
In the event that an audit of the franchise fee payments results in a determination that an additional payment is due to the City, such additional payment shall be subject to interest at the rate of nine percent per annum from the date the original payment was due. No interest shall be due with respect to annexation by the City for which notice was not provided to Grantee pursuant to the provision of ORS 222.005. (Ord. 5349 § 1, 1998; Ord. 4919 § 1, 1990).
3.20.090 Compliance with other laws.
The Grantee’s use of the public way shall comply with the standard specifications of the City, if any, and all other applicable federal and state laws and regulations now in effect or hereinafter adopted. No work affecting the public way shall be done by the Grantee without first obtaining all permits required by the City, which may include plan submittal, approval and the payment of fees that are applicable to all utilities other than telecommunications utilities, before work begins. (Ord. 4919 § 1, 1990).
3.20.100 Indemnification.
The Grantee shall defend, indemnify and hold harmless the City, its agents, officers and employees from any and all claims, demands, and damages of any kind, including attorney’s fees which may arise, from any negligent act or omissions of the Grantee, its agents, officers or employees, in connection with the Grantee’s operations pursuant to this franchise. (Ord. 4919 § 1, 1990).
3.20.110 Continuation – Termination.
The rights, privileges and franchise herein granted shall continue and be in force until June 30, 2003, except that it is understood and agreed that either party may at any time terminate or renegotiate this agreement upon six months’ notice in writing. (Ord. 5470, 2001; Ord. 5349 § 1, 1998; Ord. 4919 § 1, 1990).
Chapter 3.24
BURLINGTON NORTHERN (OREGON-WASHINGTON), INC. FRANCHISE
Sections:
3.24.010 Granted – Area designated – Laying track.
3.24.020 Communication and power lines and systems.
3.24.030 Excavations.
3.24.040 Operation of cars.
3.24.050 Crossing protective devices.
3.24.060 Repair and maintenance of streets.
3.24.070 Motive power.
3.24.080 Speed limit.
3.24.090 City laying of public utility services.
3.24.100 Term.
3.24.110 Acceptance deadline.
3.24.010 Granted – Area designated – Laying track.
There is granted to Burlington Northern (Oregon-Washington), Inc., its successors and assigns, the franchise, right, and privilege to erect, maintain, equip, and operate a single railroad or railway track with sidings, switches, turnouts, crossovers, curves, and connections and to run and operate locomotives, passenger, freight, mail, baggage, and express cars along and upon the following named streets and places in the City:
Beginning at the northeasterly boundary line of the City of Albany, the boundary line being the centerline of Cox Creek; thence running southwesterly to Water Street; thence westerly along Water Street to the west end thereof; thence in a southwesterly direction to the west boundary of the City of Albany, said west boundary being the east line of Umatilla Street extended northerly; also, beginning at the northeasterly boundary line of the City of Albany, the boundary line being the centerline of Cox Creek; thence running southwesterly parallel to and northerly to the right-of-way of the Southern Pacific Company to Main Street.
All track or tracks to be constructed under the provisions of this chapter shall be laid flush with the grade of the streets, where the streets have an established grade. When track is laid upon a street where no grade has been established, the track shall be brought to a grade whenever such grade is established by the City. When any established grade is changed by the City, the track shall be changed so as to conform with the grade as so established. (Ord. 4440 § 1, 1981; Ord. 4420 § 1, 1981; Ord. 3871 § 1, 1975).
3.24.020 Communication and power lines and systems.
Burlington Northern (Oregon-Washington), Inc., its successors and assigns, may construct, operate, equip, and maintain telegraph, telephone, power lines, and underground communications systems over, along, and under the streets designated in Section 3.24.010 for the purpose of transmitting messages or power over the lines and systems. For those purposes and for the practical enjoyment of the franchise, Burlington Northern (Oregon-Washington), Inc., its successors and assigns, is hereby authorized to erect poles and string wires or conductors upon poles or other fixtures above the ground or said wires and communications systems may be laid underground in pipes, conduits, or otherwise protected. (Ord. 4440 § 1, 1981; Ord. 4420 § 1, 1981; Ord. 3871 § 1, 1975).
3.24.030 Excavations.
It is lawful for Burlington Northern (Oregon-Washington), Inc., its successors and assigns, to make all needful and convenient excavations in any of the streets designated in Section 3.24.010 under the conditions hereinafter named for the purpose of establishing and maintaining railway, telegraph, telephone, power lines, and underground communication systems; provided, that if the excavation disturbs any of the streets, the same shall be restored to good order and condition as soon as practicable and without unnecessary delay. Burlington Northern (Oregon-Washington), Inc., its successors, lessees, and assigns, shall, during the term of this franchise, keep the track portion of each street in as good condition and repair as the remainder of the street. In case such street is improved by the City, the cost of improving the track portion of such street shall be borne by Burlington Northern (Oregon-Washington), Inc. For the purposes of this section, the term “track portion of the street” means the space between the rails and spaces 18 inches in width running parallel with and adjacent to the outside flange of each rail. (Ord. 4440 § 1, 1981; Ord. 4420 § 1, 1981; Ord. 3871 § 3, 1975).
3.24.040 Operation of cars.
There is granted to Burlington Northern (Oregon-Washington), Inc., its successors and assigns, the right to maintain and operate cars over all private tracks and private property now occupied by it. (Ord. 4440 § 1, 1981; Ord. 4420 § 1, 1981; Ord. 3871 § 4, 1975).
3.24.050 Crossing protective devices.
Burlington Northern (Oregon-Washington), Inc., its successors and assigns, do further agree that in consideration of the grant of the franchise herein given, that should it become necessary at any time in the future to construct or install protective devices in any grade crossing within the area defined in Section 3.24.010, then and in that event Burlington Northern (Oregon-Washington), Inc., agrees to bear any cost of the protective devices that might be assigned by the Public Utility Commissioner or any other agency to the City. “Protective device” means a sign, signal, gate, or other device to warn or protect the public installed at a railroad-highway grade crossing. However, the City shall cooperate with Burlington Northern (Oregon-Washington), Inc., to obtain and utilize all State and federal funds available for such projects. Also, in the event of the passage of a law by the State providing for the apportionment of the cost of maintenance of protective devices, Burlington Northern (Oregon-Washington), Inc., shall have the advantage and benefit of such law. The City shall maintain any required advance warning signs and pavement markings. (Ord. 4440 § 1, 1981; Ord. 4420 § 1, 1981; Ord. 3887 § 1, 1975; Ord. 3871 § 5, 1975).
3.24.060 Repair and maintenance of streets.
Burlington Northern (Oregon-Washington), Inc., its successors and assigns, shall have the right to do all necessary excavating or grading for the repair and maintenance of the streets designated in Section 3.24.010. All portions of the streets so excavated or graded must be replaced in as near their original condition as practicable, and Burlington Northern, its successors and assigns, shall, during the term of this franchise, keep the portions of the streets upon which tracks are maintained in as good condition and repair as the remainder of the street is maintained, for the whole width of the right-of-way between the rails of each track, and for the width of 18 inches on the outside of the rails of each track. In case such street is improved by the City, the cost of improving the portions of those streets last shall be borne by Burlington Northern (Oregon-Washington), Inc. (Ord. 4440 § 1, 1981; Ord. 4420 § 1, 1981; Ord. 3871 § 6, 1975).
3.24.070 Motive power.
The motive power employed for operating cars and locomotives upon such tracks shall be diesel or diesel-electric. (Ord. 4420 § 1, 1981; Ord. 3871 § 7, 1975).
3.24.080 Speed limit.
The rate of speed of all cars shall not exceed 20 miles per hour between grade crossings within the limits of the City. (Ord. 4420 § 1, 1981; Ord. 3887 § 1, 1975; Ord. 3871 § 8, 1975).
3.24.090 City laying of public utility services.
In the event the City is required by public necessity to lay any sewer pipe, water pipe, or other public utility service along or across any street or part thereof on which Burlington Northern (Oregon-Washington), Inc., is hereby granted the privilege to maintain the railroad tracks and appurtenances thereto, the said Burlington Northern (Oregon-Washington), Inc., its successors, lessees, and assigns, will pay to the City the additional cost which the City may incur by reason of the railroad tracks being located in and upon those streets. Any expense incurred by Burlington Northern (Oregon-Washington), Inc., in the maintenance of its railroad tracks and appurtenances thereto, which may be incurred during the time that the City is laying any public utility hereinbefore mentioned, shall be at the expense of Burlington Northern (Oregon-Washington), Inc. (Ord. 4440 § 1, 1981; Ord. 4420 § 1, 1981; Ord. 3871 § 9, 1975).
3.24.100 Term.
All the rights granted in this chapter shall continue and be in force and effect five years from and after the date of the final approval of the ordinance codified in this chapter. (Ord. 4440 § 1, 1981; Ord. 4420 § 1, 1981; Ord. 3871 § 9, 1975).
3.24.110 Acceptance deadline.
All the rights, privileges, and franchise set forth in this chapter are granted upon the condition that Burlington Northern (Oregon-Washington), Inc., its successors and assigns, within 60 days from and after the date of the passage of the ordinance codified in this chapter and its approval by the mayor, files with the City Recorder its written acceptance of its provisions. (Ord. 4440 § 1, 1981; Ord. 4420 § 1, 1981; Ord. 3871 § 11, 1975).
Chapter 3.26
COMCAST TELECOMMUNICATION FRANCHISE
Sections:
Article I. General Provisions
3.26.010 Franchise granted.
3.26.020 Definitions.
3.26.030 Grant of authority.
3.26.040 Periodic review.
3.26.050 Rules of construction.
3.26.060 Severability and constitutionality.
3.26.070 Commercial impracticability.
3.26.080 Competitive equity.
Article II. Service
3.26.090 Continuous service.
3.26.100 Emergency repair service.
3.26.110 Justified service.
3.26.120 Extension of service.
3.26.130 Levels of service.
Article III. Construction
3.26.140 Rearrangement of facilities to permit moving of buildings and other objects.
3.26.150 Public works and improvement not affected by franchise.
3.26.160 Control of construction.
Article IV. Use of Public Ways
3.26.170 Excavation and restoration.
3.26.180 Relocation of facilities.
3.26.190 Tree trimming.
3.26.200 Use of poles.
3.26.210 Use of bridges and public places by Franchisee.
3.26.220 Emergency removal and alternate routing of facilities.
Article V. Rules and Regulations
3.26.230 Compliance with laws, rules, and regulations.
3.26.240 Safety standards and work specifications.
3.26.250 Franchisee rules.
3.26.260 Discriminatory practices prohibited.
3.26.270 Sale of subscriber lists prohibited.
3.26.280 Right to inspect books.
3.26.290 Maps.
3.26.300 Reports and records.
3.26.310 Duration, renewal, and renegotiation.
3.26.320 Collection facilities.
3.26.330 Assignment of franchise – Sale of franchise.
Article VI. Insurance, Bonding, and Penalties
3.26.340 Insurance.
3.26.350 Bonds and other surety.
3.26.360 Remedies not exclusive – When requirement waived.
3.26.370 Liquidated damages.
Article VII. Franchise Specifications
3.26.380 Franchise nonexclusive.
3.26.390 Channel capacity.
3.26.400 Rate structure.
3.26.410 Compensation.
3.26.420 Permit and inspection fees.
3.26.430 Public access programming.
3.26.440 Technical standards.
3.26.450 City right in franchise.
3.26.460 Complaint procedures and inquiries.
3.26.470 Misdemeanors.
3.26.480 Rate regulation.
3.26.490 Force majeure.
3.26.500 Nonlitigation.
3.26.510 Nonenforcement by the City.
3.26.520 Descriptive headings.
3.26.530 Calculation of time.
3.26.540 Written notice.
Article I. General Provisions
3.26.010 Franchise granted.
There is hereby granted by the City of Albany, hereinafter referred to as “City,” to Comcast of Oregon II, Inc., authorized to conduct business in Oregon, their successors and assigns, hereinafter each referred to as “Franchisee,” the nonexclusive right and privilege to conduct business as a cable service operator as that term is defined in ORS 30.192 within the City and to place, erect, lay, maintain and operate in, upon, over and under streets, alleys, avenues, thoroughfares and public highways, places and grounds within the City, poles, wires and other appliances and conductors for all cable service purposes. Such wires and other appliances and conductors may be strung upon poles or other fixtures above ground, or, at the option of the Franchisee, its successors and assigns, may be laid underground, and such other apparatus may be used as may be necessary to properly operate and maintain the same. (Ord. 5687, 2007).
3.26.020 Definitions.
For the purpose of this chapter, the following terms shall have the meaning given herein:
(1) “Antenna” shall be the tower or device for receiving radio and/or television signals for redistribution through a closed circuit.
(2) “Bridge” includes a structure erected within the City to facilitate the crossing of a river, stream, ditch, ravine, or other place, but does not include a culvert.
(3) “Cable” is the distributing conductor or conductors for the transmission of radio and/or television signals in a closed circuit.
(4) “Cable Act” means the Cable Communications Policy Act of 1984, as amended by the Telecommunications Act of 1996, and any other federal amendments to said statutes.
(5) “Cable system” means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment or other communications equipment that is designed to provide cable service to subscribers.
(6) “Cable television system” or “CATV” means (a) the one-way transmission to subscribers of video programming or other programming service, and (b) subscriber interaction, if any, which is required for the selection of such video programming communication service.
(7) “City” means the City of Albany, Oregon, and the area within its boundaries as extended in the future.
(8) “Conduit” is an electrical raceway for the enclosure of electrical conductors and may consist of rigid conduit of electrical metallic tubing or plastic tubing.
(9) “Converter” means an electronic device that converts signals to a frequency not susceptible to interference within the television received of a subscriber and increases the number of channels the subscriber may select.
(10) “Council” means the legislative body of the City.
(11) “Customer,” “user” or “subscriber” shall mean any person or entity lawfully receiving cable service.
(12) “Franchise territory” means the area within the legal boundaries of the City and including any areas annexed during the term of the franchise.
(13) “Franchisee” means Comcast of Oregon II, Inc., an Oregon corporation, its successors, legal representatives, or assigns.
(14) “Gross revenue” means any revenue derived by the Grantee from the operation of the cable system to provide cable services in the service area, following generally accepted accounting principles (“GAAP”), consistent with federal and state law, confirming existing practice.
(15) “May” is permissive.
(16) “Person” includes an individual, corporation, association, firm, partnership, and joint stock company.
(17) “Public place” includes any City-owned park, place, facility, or grounds within the City that is open to the public, but does not include a street or bridge.
(18) “Street” includes the surface, the air space above the surface, and the area below the surface of any public street, alley, avenue, road, boulevard, thoroughfare, or public highway, other public right-of-way, including public utility easements, but does not include a bridge or public place.
(19) “Shall” is mandatory.
(20) “Technical facilities” or “facilities” shall mean all real property, equipment, and fixtures used by Franchisee in the distribution of its services through its system and includes, but is not limited to, poles, conduit, cables, wires, microwave transmitters, antennas, amplifiers, etc. (Ord. 5687, 2007).
3.26.030 Grant of authority.
Subject to the conditions and reservations contained in this chapter, the City hereby grants to Franchisee the right, privilege and franchise to:
(1) Construct, maintain, and operate a cable television system within the City; and
(2) Install, maintain and operate on, over, or under the streets, bridges and public places approved by the City facilities for the transmission of electronic signals to be distributed to the City and to its inhabitants and to other customers and territory beyond the limits of the City; and
(3) Carry on a CATV subscription business for television systems, services, and radio and television signal distribution of closed circuit signals. (Ord. 5687, 2007).
3.26.040 Periodic review.
Recognizing that the field of cable communications is ever changing and to help achieve the goal of a continually advanced and modern cable communications system for the City, the Franchisee and the City agree to the following review procedure:
(1) The City reserves the right to adopt rules and regulations controlling the procedures as set forth below and subjects for review sessions. In the absence of any action taken by the City to exercise these rights, Franchisee shall be subject to at least the procedures and subjects described in this section.
(2) All periodic review sessions shall be open to the public and notice of sessions published in a newspaper of general circulation in the City.
(3) Topics which may be discussed at any evaluation session include, but are not limited to, application of new technologies, system performance, programming offered, access channels, facilities and support, municipal uses of cable, customer complaints, amendments to this franchise, judicial rulings, FCC rulings, line extension policies, and any other topic the City and Franchisee deem relevant, to the extent that these topics are not subject to current negotiations or confidential under Oregon law.
(4) As a result of these discussions, the City and the Franchisee may mutually agree to negotiate modifications or revisions to the franchise. Negotiations are confidential under Oregon state or federal law. (Ord. 5687, 2007).
3.26.050 Rules of construction.
This chapter shall be construed liberally in order to effectuate its purposes. Unless otherwise specifically prescribed in this chapter, the following provisions shall govern its interpretation and construction:
(1) When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number.
(2) Time is of the essence for this chapter. Franchisee shall not be relieved of its obligation to comply promptly with any provision of this chapter by any failure of the City to enforce prompt compliance with any of its provisions.
(3) Unless otherwise specified in this chapter, any action authorized or required to be taken by the City may be taken by the Council or by an official or agent designated by the Council.
(4) Every duty and every act to be performed by either party imposes an obligation of good faith on the party to perform such. (Ord. 5687, 2007).
3.26.060 Severability and constitutionality.
If any section, subsection, sentence, clause, or phrase of this chapter is for any reason held illegal, invalid, or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions hereof. The Council hereby declares that it would have passed the ordinance codified in this chapter and each section, subsection, sentence, clause, and phrase hereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases be declared illegal, invalid, or unconstitutional. The invalidity of any portion of this chapter shall not abate, reduce, or otherwise affect any other consideration or obligation required by the Franchisee of any franchise granted hereafter. If any court or governmental agency shall increase the maximum amount that may be required by the Franchisee, then the parties shall negotiate in good faith what the new fee shall be. During the period of negotiations, Franchisee shall continue to pay the City the compensation specified in AMC 3.26.410(1). (Ord. 5687, 2007).
3.26.070 Commercial impracticability.
The Franchisee has examined the requirements of this franchise thoroughly and the acceptance hereof constitutes a representation that they have the financial and technical capacity to carry out their obligations stated herein. All services and requirements anticipated by this franchise are commercially practicable at the time of the granting of the franchise. (Ord. 5687, 2007).
3.26.080 Competitive equity.
(1) The Grantee acknowledges and agrees that the City reserves the right to grant one or more additional franchises or other similar lawful authorization to provide cable services with the City; provided, however, that no such franchise shall contain material terms or conditions which are substantially more favorable or less burdensome to the competitive entity than the material terms and conditions herein. The parties agree that this provision shall not require a word for word identical franchise or authorization for a competitive entity so long as the regulatory and financial burdens on each entity do not give a material advantage. If the City grants any such additional or competitive franchise, the City agrees that it shall amend this franchise to include any more favorable or less burdensome terms or conditions.
(2) Notwithstanding any provision to the contrary, at any time prior to the commencement of the Grantee’s 36-month renewal window provided by Section 626 of the Cable Act, that a nonwireless-facilities-based entity, legally authorized by state or federal law, makes available for purchase by subscribers or customers, cable services or multiple channels of video programming within the franchise area without a franchise or other similar lawful authorization granted by the City, then the term of Grantee’s franchise shall, upon 90 days’ written notice from Grantee, be shortened so that the franchise shall be deemed to expire on a date 36 months from the first day of the month following the date of Grantee’s notice. Grantee shall immediately thereafter secure franchise renewal rights pursuant to Section 626 of the Cable Act with no further notice to the City required. The City and Grantee shall then enter into proceedings consistent with Section 626 for renewal of this franchise. The City and Grantee shall have all rights and obligations provided under said Section 626.
(3) Notwithstanding any provision to the contrary, should any nonwireless-facilities-based entity provide cable service within the franchise area during the term of this franchise without a franchise granted by the City, then Grantee may assert, at Grantee’s option, that this franchise is rendered “commercially impracticable,” and invoke the modification procedures set forth in Section 625 of the Cable Act. (Ord. 5687, 2007).
Article II. Service
3.26.090 Continuous service.
The Franchisee shall maintain and operate an adequate cable system in the City. The Franchisee shall use due diligence to maintain continuous and uninterrupted service which shall conform at least to the standards common in the business and the standards adopted by the state and federal authorities, and to the standards of the City contained herein which are not in conflict with those adopted by state and federal authorities. Under no circumstances is the Franchisee liable to the City for an interruption or failure of service caused by acts of God, unavoidable accident, or other circumstance beyond the control of the Franchisee through no fault of its own. (Ord. 5687, 2007).
3.26.100 Emergency repair service.
The Franchisee shall maintain emergency repair service locally on a 24-hour-per-day, seven-day-a-week basis. Such emergency service shall be easily reached by phone during normal business hours and through answering service at all other times. (Ord. 5687, 2007).
3.26.110 Justified service.
(1) Activation of Service. Franchisee shall promptly provide service upon request at standard installation rate where the potential subscriber can be served by extension of distribution cable past occupied dwelling units, equivalent to a density of 10 dwelling units per quarter mile of cable contiguous to the already activated system. Such density shall be computed on the basis of dwelling units that can be served on either side of the cable.
(2) The Franchisee shall furnish service under this franchise within City limits whenever there is demand reasonably great enough to justify cost of installing cables and equipment. The City shall have the right to make the determination of the demand, in accordance with the provisions of subsection (1) of this section but shall give Franchisee 15 days’ notice prior to making the determination; and if the Franchisee fails to comply with the City’s determination, then this franchise may be terminated pursuant to the procedures of AMC 3.26.310. (Ord. 5687, 2007).
3.26.120 Extension of service.
(1) Service to Individual Subscribers from Existing System. Where a subscriber can be served from the Franchisee’s existing system without extension of trunk or distribution cable, the Franchisee shall serve the potential subscriber upon request on the following terms and conditions:
(a) The building unit shall be connected to cable at the standard installation charge if the connection can be made with an aerial drop and does not exceed 150 feet.
(b) If the aerial connection drop exceeds 150 feet, the potential subscriber may be charged the actual cost for the distance exceeding 150 feet plus standard installation charge; and Franchisee may request advance payment for each installation.
(c) If the requested installation is to be placed underground, the potential subscriber must pay for furnishing open trench, as specified by the Franchisee, backfilling, and restoring the property to its original condition. Franchisee may request advance payment for such work.
(d) The Franchisee shall arrange for all necessary easements over or under private property. Any easement for such use which has already been granted to a telephone or other utility company shall, to the extent possible, be interpreted so as to grant the Franchisee the same rights and privileges as have been granted to the telephone or other utility company. In such easements, the words “telephone” or “telephone company,” “public utility” and the like shall be interpreted to include the Franchisee, to the extent possible.
(e) Standard installations will be performed within seven business days after an order has been placed on an average 90 percent of the time throughout the year.
(2) Additional Extension of System. In areas not meeting the requirements for mandatory extension of service, Franchisee shall provide, upon request of five or more potential subscribers desiring service, an estimate of costs required to extend service to said subscribers and the amount by which said costs exceed what would be the cost of mandatory extension under this section. Franchisee shall extend service to any such dwelling units upon advance payment (or assurance of payment satisfactory to the Franchisee) of the additional cost. Such payment shall be nonrefundable, and in the event the area subsequently reaches the density required for mandatory extension, such payments shall be treated in full or in part as consideration for early extension of service.
(3) Underground Extension of System.
(a) Installation of System. In cases of new construction or property development where utilities are to be placed underground, the developer or property owner shall give Franchisee reasonable notice of such construction or development, including a copy of any final plat and of the particular date on which open trenching will be available for Franchisee’s installation of conduit, pedestals and/or vaults, and laterals to be provided at Franchisee’s expense. Franchisee shall also provide specifications as needed for trenching.
(b) Costs of trenching and easements required to bring service to the development shall be borne by the developer or property owner; except that if Franchisee fails to install its conduit, pedestals and/or vaults, and laterals within two working days of the date the trenches are available, then should the trenches be closed after the two-day period, the cost of new trenching is to be borne by Franchisee.
(c) In those areas and portions of the City where the transmission or distribution facilities of both the public utility providing telephone service and those of the utility providing electric service are underground or hereafter may be placed underground, then the Franchisee shall likewise construct, operate, and maintain all of its transmission and distribution facilities underground.
(d) It shall be the policy of the City to encourage all utilities, including Franchisee, to place all existing and future transmission and distribution facilities underground. The Franchisee agrees with this policy and will work with the City and other utilities to implement this policy.
(4) Access to Open Trenches. The Franchising Authority agrees to include the Grantee in the platting process for any new subdivision within the franchise area. A utility or developer shall give the Grantee at least 10 days’ advance written notice of the availability of an open trench, and a utility or developer shall provide Grantee with reasonable access to the open trench. Grantee shall make a good faith effort to utilize such open trenches in its provision of cable service to affected properties so long as such properties are passed by Grantee’s cable system, but Grantee is not required to utilize any trench. Neither franchising authority nor Grantee shall be liable or financially responsible for any failure to give Franchisee notice of, or require notice of a subdivision plat application, or failure to utilize open trenches created by a utility or developer. (Ord. 5687, 2007).
3.26.130 Levels of service.
(1) Basic Service. Basic service is the lowest tier of service regularly provided to all subscribers that includes the retransmission of local broadcast signals. In no event shall subscribers be required to subscribe to any other service as a condition for obtaining basic service.
(2) Service to Institutions. Upon request, the Franchisee shall make single installations of its cable communications system facilities to each fire and police station, public school, Linn Benton Community College, County Courthouse, City office, public museum and all public libraries within the franchise territory on the terms provided in AMC 3.26.120, except no standard installation fee shall be imposed for such installations. No monthly service charge shall be made for distribution of the basic service to these locations. (Ord. 5687, 2007).
Article III. Construction
3.26.140 Rearrangement of facilities to permit moving of buildings and other objects.
(1) Upon seven days’ notice in writing from any person desiring to move a building or other object, the Franchisee shall temporarily raise, lower or remove its facilities upon any street, bridge, or public place with the City, when necessary to permit the person to move the building or other object across or along such street, bridge or public place. The raising, lowering, or removal of the facilities of the Franchisee shall be in accordance with all applicable ordinances and regulations of the City.
(2) The notice required by subsection (1) of this section shall bear the approval of the City Manager, shall detail the route of movement of the building or other objects and shall provide that the actual expense incurred by the Franchisee in making the temporary rearrangement of its facilities, including the cost to the Franchisee of any interruption of service to its customers caused thereby, will be borne by the person giving the notice. It shall further provide that the person giving said notice will indemnify and save said Franchisee harmless from any and all damages or claims of whatsoever kind or nature caused directly or indirectly from such temporary rearrangement of Franchisee’s facilities.
(3) Franchisee, before making the temporary rearrangement of its facilities, may require the person desiring the temporary rearrangement to deposit cash or adequate security, at the option of the person, to secure payment of the costs of rearrangement as estimated by the Franchisee. (Ord. 5687, 2007).
3.26.150 Public works and improvement not affected by franchise.
The City reserves the right:
(1) To construct, install, maintain, and operate any public improvement, work, or facility.
(2) To do any work that the City may find desirable on, over, or under any street, bridge, public easement, or public place.
(3) To vacate, alter, or close any street, bridge, public easement, or public place.
(4) Whenever the City shall excavate or perform any work in any of the present and future streets, bridges, public easement, or public places of the City of Albany or shall contract or issue permits for such excavation or work where such excavation or work may disturb Franchisee’s overhead or underground cables, pipes, conduits, and appurtenances, the City shall, in writing, notify Franchisee sufficiently in advance of such contemplated excavation or work to enable Franchisee to take such measures as may be deemed necessary to protect such overhead or underground cables, pipes, conduits, and appurtenances from damage and possible inconvenience to the public. In any such case, the Franchisee, upon receiving such notice, shall furnish maps or drawings, within 30 days of written notice (subject to AMC 3.26.290), to the City or contractor, as the case may be, showing the approximate location of all its structures in the area involved in such proposed excavation or other work. (Ord. 5687, 2007).
3.26.160 Control of construction.
The Franchisee shall file with the City maps showing the location of any construction, extension, or relocation of any of the facilities of the Franchisee and shall obtain the City’s approval of the location and plans prior to the commencement of the work. The City may require the Franchisee to obtain a permit before commencing the construction, extension, or relocation of any of its facilities. (Ord. 5687, 2007).
Article IV. Use of Public Ways
3.26.170 Excavation and restoration.
(1) Use. All transmission and distribution structures, lines, and equipment erected by the Franchisee within the City shall be so located as to cause minimum interference with the proper use of streets, bridges, utilities, public easements, and other public ways and places, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the streets, bridges, or other public ways or places.
(2) Prior to making an excavation within any public right-of-way or public easement, the Franchisee shall obtain from the City approval of the excavation and its location.
(3) Unless approved by the City, no newly overlaid street or newly constructed street shall be excavated by the Franchisee for a period of five years from the time of completion of the street overlay or the street construction. In any such case, Franchisee shall be excused by the City from extending service if a practical alternate route cannot be found.
(4) All installations by the Franchisee in new residential subdivisions shall be, wherever and whenever practical, laid in conjunction with power and/or telephone cable installations.
(5) Restoration. Except as provided in subsection (3) of this section, when any excavation is made by the Franchisee, the Franchisee shall promptly restore the affected portion of the street, bridge, easement area, or public place to reasonably the same condition in which it was prior to the excavation. The restoration shall be done in compliance with City specification, requirements, and regulations in effect at the time of such restoration. If the Franchisee fails to restore promptly the affected portion of the street, bridge, or public place to the same condition in which it was prior to the excavation, the City may make the restoration; and the reasonable costs of making the restoration, including the cost of inspection, supervision, and administration shall be paid by the Franchisee.
(6) The City may require that any excavation made by the Franchisee in any street, bridge, or public place be filled and the surface replaced by the City and that the reasonable cost thereof, including the cost of inspection, supervision, and the administration, shall be paid by the Franchisee.
(7) The reasonable costs of excavation and restoration incurred by the City pursuant of subsections (5) and (6) of this section, including the cost of inspection, supervision, and administration, shall be paid by the Franchisee to the City in accordance with the standard billing policy of the City in effect at the time the excavation or restoration occurred. (Ord. 5687, 2007).
3.26.180 Relocation of facilities.
(1) Franchisee shall protect, support, temporarily disconnect or relocate any of its equipment when required to do so by the City by reason of traffic conditions, public safety, street vacation, highway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines, and tracks, or any other type of structures or improvements by the City.
(2) The cost of such removal or relocation of its facilities shall be paid by the Franchisee, but when such removal or relocation is required for the exclusive convenience or benefit of any person or governmental agency and instrumentality other than the City, Franchisee may be entitled to reimbursement for the reasonable costs thereof from such person, agency, or instrumentality. If the Franchisee fails to comply with any requirement of the City made pursuant to this section within 30 days of written notice, the City may remove or relocate the facilities at the expense of the Franchisee.
(3) The Franchisee shall not place its technical facilities where they will interfere with any gas, electric, or telephone fixture, or sewer or water facility. All facilities placed in the street shall be placed as the City directs. (Ord. 5687, 2007).
3.26.190 Tree trimming.
(1) Subject to the provisions of this chapter, Franchisee may trim trees when necessary in public rights-of-way for the operation of the lines, wires, cables and antennas or other appurtenances, provided such trimming shall be done by competent employees, agents, or contractors; and it shall be done without cost or expense to the City.
(2) Said tree trimming shall be allowed only after Franchisee makes application and a written permit is approved by the City Manager of the City of Albany or any person appointed by the City Manager to exercise this function. Tree trimming shall be performed in accordance with City ordinances. (Ord. 5687, 2007).
3.26.200 Use of poles.
The City reserves to itself the right at any time to use the poles, subject to a valid pole attachment agreement, and other installations of the Franchisee erected or installed under the authority granted in this chapter for any City-owned facilities of whatsoever nature, but it is agreed that such use shall not interfere with the Franchisee’s use thereof. Franchisee shall not be required to own or operate any facilities the City is using if the Franchisee ceases to have a need therefor. (Ord. 5687, 2007).
3.26.210 Use of bridges and public places by Franchisee.
(1) Before the Franchisee may use or occupy any bridge or City facility, the Franchisee shall first obtain permission from the City to do so and comply with any special conditions the City desires to impose on such use or occupation.
(2) The compensation paid by the Franchisee for this franchise includes compensation for the use of bridges and public places located within the City, as authorized. However, this subsection shall not be construed to prevent the City fro
