AN ORDINANCE ADOPTING TITLE 12, FRANCHISES, OF THE YAMHILL MUNICIPAL CODE; ADOPTING RULES AND REGULATIONS PERTAINING TO FRANCHISES, WITHIN THE CITY OF YAMHILL, SUPERSEDING PREVIOUS ORDINANCES, AND DECLARING AN EMERGENCY.

THE CITY OF YAMHILL ORDAINS AS FOLLOWS:

SECTION 1. There is hereby added to the Yamhill Municipal Code, Title 12, Franchises, as follows:

Chapters:

12.04 Portland General Electric

12.08 TCI of Oregon Inc.

12.12 City Sanitary and Recycling

12.16 Continental Telephone Company

Sections:

12.04.010 Grant of Franchise

12.04.020 Franchise Term

12.04.030 Proposed Construction Maps or Sketches

12.04.040 Placement of Poles

12.04.050 Restoration on Street Occupancy

12.04.060 Relocation of Pole for Public Necessity

12.04.070 City Work not to Obstruct Company System

12.04.080 Relocation on Street Occupancy

12.04.090 Temporary Removal of Wires for Building/Machinery Moving

12.04.100 Franchisee Responsibility

12.04.110 Rates and Charges

12.04.120 Indemnification

12.04.130 Franchise Not Exclusive

12.04.140 Not an Enhancement of Company's Properties

12.04.150 Descriptive Heading

12.04.010 Grant of Franchise. That Portland General Electric Company, an Oregon corporation, hereinafter sometimes referred to as the "Company," is hereby granted, subject to the terms and conditions hereof, the franchise right and privilege to erect, construct, maintain and operate an electric light and power system within the corporate limits of the City of Yamhill, herein sometimes referred to as the "City," as the same now exist, or may be hereafter constituted, and the franchise right and privilege to erect, construct, maintain and operate poles, wires, fixtures, equipment, underground circuits and other property necessary or convenient to supplying the City and the inhabitants thereof and other persons and territory with electric energy for light, power and other purposes, upon, over, along, under and across the streets, alleys, and other public ways and places within the corporate limits of the City as the same now are or may be hereafter constituted.

All poles, wires, fixtures, equipment, underground circuits and other property owned or in possession of the Company now located within the corporate limits of the City shall be deemed to be covered by the terms of this Chapter and to be located in accordance therewith, and the location and placement thereof is hereby approved. (Ord. 271, §1, 1992; Ord. O-441, §1(part), 1998)

12.04.020 Franchise Term. That all rights and privileges hereby granted shall be effective as of May 1, 1992 and shall terminate at the expiration of twenty years from said date, except that in the event the Company shall fail, neglect or refuse for thirty (30) days after demand in writing by the City to perform any or all of the obligations or requirements set forth in this Chapter to be performed by the Company, then the rights and privileges herein granted may be terminated and annulled by the Common Council or other legislative body of the City, and the Company shall forfeit all rights and privileges hereby granted. (Ord. 271, §2, 1992; Ord. O-441, §1(part), 1998)

12.04.030 Proposed Construction Maps or Sketches. That the Company shall, if requested so to do, file with the City Engineer, or other City official designated by the City, maps or sketches showing any proposed construction work to be done by the Company within the corporate limits of the City, and such construction work shall be done in a reasonably safe manner subject to the approval of the official designated by the Council of the City and in accordance with requirements of applicable State Laws and City ordinances. In emergencies such filings shall occur within thirty (30) days of completion of emergency construction work. (Ord. 271, §3, 1992; Ord. O-441, §1(part), 1998)

12.04.040 Placement of Poles. That the Company, under the direction of the City or its property constituted authorities, may make all necessary excavations in any street, alley, road or other public way or place for the purpose of erecting, constructing, repairing, maintaining, removing and relocating poles and other supports for its wires, conductors, lights or street lights; and laying, repairing and maintaining its underground conduits and pipes; and for placing, maintaining and operating its wires and conductors. All poles of the Company shall be erected at the outside edge of the sidewalk unless otherwise directed by the proper City authorities. (Ord. 271, §4, 1992; Ord. O-441, §1(part), 1998)

12.04.050 Restoration on Street Occupancy. That when any excavation shall be made pursuant to the provisions of this Chapter, the Company shall restore the portion of the street, alley, road or public way or place to the same condition to which it was prior to the excavation thereof, and all work shall be done in strict compliance with the rules, regulations, ordinances or orders which may be adopted from time to time during the continuance of this franchise by the Common Council of the City or as may be otherwise provided by law. (Ord. 271, §5, 1992; Ord. O-441, §1(part), 1998)

12.04.060 Relocation of Pole for Public Necessity. That the City, by its properly constituted authorities, shall have the right to cause the Company to move the location of any pole whenever the relocation thereof shall be for public necessity, and the expense thereof shall be paid by the Company. (Ord. 271, §6, 1992; Ord. O-441, §1(part), 1998)

12.04.070 City Work not to Obstruct Company System. That nothing in this Chapter shall be construed as in any way to prevent the City from sewering, grading, paving, planking, repairing, widening, altering or doing any work that may be desirable on any of the streets, alleys, roads or public ways or places; but all such work shall be done, if possible, in such manner as not to obstruct, injure or prevent free use and operation of the said electric light and power system of the Company. (Ord. 271, §7, 1992; Ord. O-441, §1(part), 1998)

12.04.080 Relocation on Street Occupancy. That whenever it shall be necessary in sewering, grading, or in making any other improvement in any street, alley, road or other public way or place, to relocate any pole, underground conduit or equipment belonging to the Company or on which any light, wire or circuit of the Company shall be stretched or fastened, the Company shall, upon ten (10) days' written notice from the City, or its properly constituted authorities, relocate such pole, underground conduit, equipment, light, wire or circuit, and if it fails, neglects or refuses so to do, the City, by its properly constituted authorities, may relocate the same at the expense of the Company. (Ord. 271, §8, 1992; Ord. O-441, §1(part), 1998)

12.04.090 Temporary Removal of Wires for Building/Machinery Moving. 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 rearrangement on seven (7) days' 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 the Common Council may designate, shall detail the route of movement of the building, machinery or other objects, shall provide that the costs incurred by the grantee in making such rearrangements of its aerial plant will 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 said grantee harmless of and from any and all damages or claims of whatsoever kind or nature caused directly or indirectly -from such temporary arrangement 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 such costs as estimated by grantee. (Ord. 271, §9, 1992; Ord. O-441, §1(part), 1998)

12.04.100 Franchisee Responsibility. That the rights and privileges granted by this Chapter are granted upon the conditions herein contained and also upon the following considerations and conditions to wit:

(A) That Portland General Electric Company shall, within thirty (30) days from the effective date of this Chapter, file with the City Recorder its written acceptance of this Chapter, subject to all the terms, obligations, restrictions and provisions of this Chapter, and upon the expiration of the allotted time for the acceptance of this Chapter, the same not having been accepted unconditionally, then this Chapter shall become wholly void, inoperative and of no effect.

(B) That in consideration of the rights and privileges herein granted, the Company shall pay to the City a franchise fee for each full calendar year during the life of this franchise beginning with the year 1993 an annual fee of three and one-half (3½) percent of the gross revenue as defined herein for the immediately preceding calendar year. Gross revenue as used in this Chapter shall be deemed to include any revenue earned within the City from the sale of electric energy after adjustment for the net write-off of uncollectible accounts computed on the average annual rate for the entire Company and excluding sales of electric energy to large industrial customers with nominal demands of 5,000 kw or greater and also excluding sales of electric energy sold by the Company to any public utility when the public utility purchasing such electric energy is not the ultimate consumer. A public utility as defined herein is any individual, partnership, cooperative, corporation or government agency buying electric energy and distributing such electric energy to other customers or users.

(C) That in consideration of the agreement of the Company to make such payments, the City agrees that no license, tax or charge on the business, occupation or franchise of the Company shall be imposed upon, exacted from or required of the Company by the City during the term of this Chapter, but this provision shall not exempt the property of the Company from lawful ad valorem taxes.

(D) That on or before the first day of March, 1993, and on or before said day of each year thereafter during the term of this franchise, the Company shall file with the City Recorder a statement under oath showing the amount of gross revenue of the Company within the City on the basis outlined in paragraph (B) hereof for the calendar year immediately preceding the year in which the statement is filed. The annual franchise fee for the year in which the statement is filed shall be computed on the gross revenue so reported. Such franchise fee shall be payable annually an or before the first day of April beginning in the year 1993. Upon receipt of such annual payment the City Recorder shall issue his receipt therefor, which shall be full acquittance of the Company for the payment. If controversy arises as to the amount of gross revenue within the meaning of this Chapter, the amount of such gross revenue as determined by the Public Utility commission of Oregon after examination of the Company's records shall be deemed the correct amount. Any difference of payment due either the City or the Company through error or otherwise shall be payable within fifteen (15) days of discovery of such error. Should the Company fail or neglect to pay any of said annual payments provided for in this Section for thirty (30) days after any annual payment shall become due and payable and after thirty (30) days' written notice from the City, the City, by its properly constituted authority, may at its option either continue this franchise in force and/or proceed by suit or action to collect said payment or declare a forfeiture of this franchise because of the failure to make such payment but without waiving the right to collect earned franchise payments.

(E) That the City reserves the right to cancel this franchise at any time upon one year's written notice to the Company in the event that the City decides to engage in public ownership of light and power facilities and the public distribution of electric energy.

(F) That the Company shall permit the City to string wires on poles of the company for municipal fire, police and water departments, and for municipal telephone, telegraph and traffic signal systems and to attach to the top of any pole city fire alarm and police signals, provided that such wires and signals shall be strung so as to interfere as little as possible with the wires of the company and to conform to the provisions of the National Electrical Safety Code; and further, that the City shall indemnify and hold the Company harmless from loss or damage resulting from damage to property or injury or death to city employees or the public arising from or connected with the use of said poles by the City.

(G) That the Company shall not during the term of this franchise sell, assign, transfer or convey this franchise without the consent of the Common council of the City expressed by ordinance first obtained, and that upon obtaining such consent all of the provisions shall inure to and bind the successors and assigns of the Company; and whenever the Portland General Electric Company shall be mentioned in this Chapter, it shall be understood to include such successors or assigns in interest of the Portland General Electric Company as shall have been so consented to by the Common Council.

(H) That the Company shall render the service hereby authorized to be supplied upon equal terms without unjust discrimination or undue preference to any users within the City. (Ord. 271, §10, 1992; Ord. O-441, §1(part), 1998)

12.04.110 Rates and Charges. That the rates to be charged by the Company for electric energy shall be such as may be fixed or approved by the Public Utility commission of Oregon, or any other governmental official, commission or body having jurisdiction. (Ord. 271, §11, 1992; Ord. O-441, §1(part), 1998)

12.04.120 Indemnification. That the Company hereby agrees and covenants to indemnify and save harmless the City and the officers thereof against all damages, costs and expenses whatsoever to which it or they may be subjected in consequence of negligence of the Company, or its agents or servants, in any manner arising from the rights and privileges hereby granted. (Ord. 271, §12, 1992; Ord. O-441, §1(part), 1998)

12.04.130 Franchise Not Exclusive. That the franchise hereby granted shall not be exclusive and shall not be construed as any limitation on the City to grant rights, privileges and authority to other persons or corporations similar to or different from those herein set forth. (Ord. 271, §13, 1992; Ord. O-441, §1(part), 1998)

12.04.140 Not an Enhancement of Company's Properties. That all rights, authority and grants herein contained or conferred are also conditioned upon the understanding and agreement that these privileges in the streets, alleys, roads and other public ways and places of the City are not to operate in any way so as to be an enhancement of the Company's properties or values or to be an asset or item of ownership in any appraisal thereof. (Ord. 271, §14, 1992; Ord. O-441, §1(part), 1998)

12.04.150 Descriptive Heading. The captions to sections contained herein are intended solely to facilitate the reading thereof. Such captions shall not affect the meaning or interpretation of the test herein. (Ord. O-441, §1(part), 1998)

Sections:

12.08.010 Definitions

12.08.020 Grant of Franchise

12.08.030 Term of Franchise

12.08.040 Acceptance of Franchise; Effective Date

12.08.050 Service Standards

12.08.060 Notice of Interruption for Repairs

12.08.070 Payment Facilities

12.08.080 Conditions for Excusing Service

12.08.090 Authority to Promulgate Rules

12.08.100 Conditions on Street Occupancy

12.08.110 Restoration on Street Occupancy

12.08.120 Relocation on Street Occupancy

12.08.130 Vacation or Closure of Street, Alley or Public Way

12.08.140 Placement of Fixtures

12.08.150 Temporary Removal of Wires for Building Moving

12.08.160 Tree Trimming

12.08.170 Safety, Standards, and Work Specifications

12.08.180 Grantee to Furnish Cable Services

12.08.190 Franchise Fee

12.08.200 Rates and Charges

12.08.210 Renewal of Franchise

12.08.220 Conditions of Sale

12.08.230 Transfer of Franchise

12.08.240 Testing for Compliance

12.08.250 Books and Records

12.08.260 Insurance Requirements

12.08.270 Indemnification

12.08.280 Bonds and Other Security

12.08.290 Notice of Violation

12.08.300 Grantee's Right to Cure and Duty to Respond

12.08.310 Public Hearing

12.08.320 Enforcement

12.08.330 Acts of God

12.08.340 Documents Incorporated and Made a Part Hereof

12.08.350 Preemption

12.08.360 Actions of Franchising Authority

12.08.370 Descriptive Heading

12.08.380 Severability

12.08.010 Definitions. For the purpose of this Chapter, the following terms, phrases, words, and abbreviations shall have the meanings ascribed to them below:

"Affiliate" means an entity which owns or controls is owned or controlled by, or is under common ownership with Grantee.

"Basic Cable" means any service tier which includes the retransmission of local signals required to be carried on the Cable System, for which Grantee charges the lowest monthly charge.

"Cable Act" means the Cable Communications Policy Act of 1984, as amended.

"Cable Service" means (i) the one-way transmission to subscribers of Video Programming or other programming service, and (ii) subscriber interaction, if any, which is required for the selection of such Video Programming or other programming service.

"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 and other service to subscribers.

"FCC" means Federal Communications Commission, or successor governmental entity thereto.

"Franchise" shall mean the initial authorization or renewal thereof, issued by the Franchising Authority, whether such authorization is designated as a franchise, permit license, resolution, contract, certificate, or otherwise, which authorizes construction and operation of the Cable System for the purpose of offering Cable Service or other service to subscriber.

"Franchise Authority" means the City of Yamhill, or the lawful successor, transferee or assignee thereof.

"Grantee" means TCI of Oregon, or the lawful successor, transferee or assignee thereof.

"Gross Revenues" shall mean the gross receipts received form services provided within the service area of the City of Yamhill during each calendar year, but excluding therefrom those amounts received by Company for installation, construction, connection services, advertising carried on Cable System, or those specifically excluded by section 622 (g) (2) of the Cable Act.

"Person" means an individual, partnership, association, joint stock company, trust corporation, or governmental entity.

"Public Way" shall mean the surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, way, lane, public way, drive, circle or other public right-of-way, including public utility easements, dedicated utility strips or right-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the Franchise Authority in the Service Area which shall entitle the Franchise Authority and the Grantee to the use thereof for the purpose of installing, operating, repairing and maintaining the Cable System. Public Way shall also mean any easement now or hereafter held by the Franchise Authority within the Service Area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights-of-way as shall within their proper use and meaning entitle the Franchise Authority and the Grantee to the use thereof for the purposes of installing or transmitting Grantee's Cable Service or other service over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, compliances, attachments and other property as may be ordinarily necessary and pertinent to the Cable System.

"Service Area" means the present municipal boundaries of the Franchise Authority, and shall include any additions thereto by annexation or other legal means.

"Service Tier" means a category of Cable Service or other services provided by Grantee and for which a separate charge is made by Grantee.

"Subscriber" means a person or user of the Cable System who lawfully receives Cable Services or other service therefrom with the Grantee's express permission.

"Video Programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station. (Ord. O-409, §1, 1996; Ord. O-441, §1(part), 1998)

12.08.020 Grant of Franchise. The City hereby grants to Grantee a nonexclusive Franchise which authorizes the Grantee to construct and operate a Cable System and offer Cable Service and other services in, over, upon and under the streets and alleys, and public highways of the City and to stretch wires and cables underground on all streets and alleys and to erect other appurtenances and to maintain and use the same as a coaxial cable subscription system for television signal distribution to subscribers' terminals. (Ord. O-409, §2.1, 1996; Ord. O-441, §1(part), 1998)

12.08.030 Term of Franchise. The Franchise granted pursuant to this Chapter shall be for an initial term of ten (10) years from the effective date of the Franchise as set forth in Section 12.08.040, unless otherwise lawfully terminated in accordance with the terms of this Chapter. The Grantee herein shall have an option for an additional ten (10) year renewal of said franchise upon giving notice to the City of the exercise of said option six (6) months prior to the termination date herein. (Ord. O-409, §2.2, 1996; Ord. O-441, §1(part), 1998)

12.08.040 Acceptance of Franchise; Effective Date. This Franchise Chapter shall be effective only upon condition that Company shall, within thirty days after adoption of this Chapter, file with the City Recorder written acceptance of this Franchise and the terms hereby imposed. Upon receipt of written acceptance, this Franchise Chapter shall become effective August 1, 1996. (Ord. O-409, §2.3, 1996; Ord. O-441, §1(part), 1998)

12.08.050 Service Standards. The Grantee shall maintain and operate its system and render efficient service in accordance with the rules and regulations as are or may be set forth by the City, provided, however, that City shall not unreasonably and materially amend, restrict or interfere with the rights and privileges granted herein, except with the consent of the Grantee. (Ord. O-409, §3.1, 1996; Ord. O-441, §1(part), 1998)

12.08.060 Notice of Interruption for Repairs. Whenever it is necessary to shut off or interrupt service for the purpose of making repairs, adjustments or installations, the Grantee shall do so at such time as will cause the least amount of inconvenience to its customers, and unless such interruption is unforeseen and immediately necessary, it shall give reasonable notice thereof to its customers. (Ord. O-409, §3.2, 1996; Ord. O-441, §1(part), 1998)

12.08.070 Payment Facilities. The Grantee shall maintain or arrange for facilities in the City where its customers may pay their bills for cable service during normal business hours. (Ord. O-409, §3.3, 1996; Ord. O-441, §1(part), 1998)

12.08.080 Conditions for Excusing Service. The Grantee's obligation to provide, repair, replace, construct, maintain or operate cable service as set forth herein shall be excused for any period during which such service, is prevented or interrupted by causes beyond the Grantee's control, including acts of God, fire, flood, unavoidable casualty, extra-ordinary delays in transportation, strikes or power interruption, regulations or controls. Service shall thereafter be restored as soon as reasonably possible. (Ord. O-409, §3.4, 1996; Ord. O-441, §1(part), 1998)

12.08.090 Authority to Promulgate Rules. Subject to the provision hereof, the Grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonable necessary to enable the Grantee to exercise its rights and perform its obligations under this Franchise, and to assure an uninterrupted service to each and all its customers, provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or of laws of the State of Oregon. (Ord. O-409, §3.5, 1996; Ord. O-441, §1(part), 1998)

12.08.100 Conditions on Street Occupancy. Use. All transmission and distribution structures, lines and equipment erected by the Grantee within the City shall be so located as to cause minimum interference with the proper use of streets, alleys and other public ways and places, and to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of the said streets, alleys or other public ways and places. (Ord. O-409, §3.6, 1996; Ord. O-441, §1(part), 1998)

12.08.110 Restoration on Street Occupancy. In case of any disturbance of pavement, sidewalk, driveway or other surfacing, the Grantee shall, at its own cost and expense and in a manner approved by the City, replace and restore all paving, sidewalk, driveway or surface of any street or alley disturbed, in as good condition as before said work was commenced. If Grantee fails to restore promptly the affected portion of the street, alley or public way to the same condition in which it was prior to the excavation, the City may make the restoration, and the reasonable cost of making the restoration, including the cost of inspection, supervision and administration shall be paid by the Grantee. (Ord. O-409, §3.7, 1996; Ord. O-441, §1(part), 1998)

12.08.120 Relocation on Street Occupancy. In the event that at any time during the period of this Franchise the City shall lawfully elect to alter, or change the grade of, any street, alley or other public way, the Grantee, upon reasonable notice by the City, shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other television fixtures at its own expense. (Ord. O-409, §3.8, 1996; Ord. O-441, §1(part), 1998)

12.08.130 Vacation or Closure of Street, Alley or Public Way. In the event that at any time during the period of this Franchise, the City shall lawfully elect to vacate, alter or close any street, alley or public way, Grantee's rights shall be preserved for the remainder of the term hereof as to any of its facilities then existing in such street or public way; provided, however, if the vacation is for the benefit or convenience of the City, Grantee's rights hereinunder may at the election of the City be terminated with respect to such street or alley so vacated. (Ord. O-409, §3.9, 1996; Ord. O-441, §1(part), 1998)

12.08.140 Placement of Fixtures. The Grantee shall not place poles or other fixtures where the same will interfere with any gas, electric or telephone fixtures, water hydrant or main, and all such poles or other fixtures placed in any street shall be placed at the outer edge of the sidewalk and inside the curb line, and those placed in alleys shall be placed close to the line of the lot abutting on said alley, and then in such a manner as not to interfere with the usual travel on said streets, alleys and public ways. (Ord. O-409, §3.10, 1996; Ord. O-441, §1(part), 1998)

12.08.150 Temporary Removal of Wires for Building Moving. The Grantee shall, on the request of any person holding a building permit issued by the City, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal, raising or lowering the wires shall be paid by the person requesting the same, and the Grantee shall have the authority to require such payment in advance. The Grantee shall be given not less than five (5) working days advance notice to arrange for such temporary wire changes. Grantee shall not require payment from the City of Yamhill for wire changes performed for civic functions. (Ord. O-409, §3.11, 1996; Ord. O-441, §1(part), 1998)

12.08.160 Tree Trimming. The Grantee shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks and public places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of the Grantee, all trimming to be done under the supervision and direction of the City and at the expense of the Grantee. (Ord. O-409, §3.12, 1996; Ord. O-441, §1(part), 1998)

12.08.170 Safety, Standards, and Work Specifications.

(A) The Facilities of the Grantee shall be at all times maintained in a safe, substantial and workmanlike manner.

(B) The location, construction, extension, installation, maintenance, removal and relocation of the facilities of the Grantee shall conform to:

(1) The requirements of all local, state and Federal Statutes, ordinances and codes, and regulations adopted pursuant thereto, in force at the time of such work.

(2) Such reasonable specifications in force at the time of such work, as the City may from time to time adopt.

(C) For the purpose of carrying out portions (A) and (B) of this subsection, the City may provide such specifications relating thereto as may be necessary or convenient for public safety or the orderly development of the City. The City may amend and add to such specifications from time to time. (Ord. O-409, §3.13, 1996; Ord. O-441, §1(part), 1998)

12.08.180 Grantee to Furnish Cable Services.

(A) Grantee shall furnish cable services under this Chapter within the City limits whenever there is cost of installing cable and equipment. Specifically, Grantee shall extend its plant to provide service to subscribers at no additional cost above its normal installation fees in all contiguous areas having a density of twelve homes per 400 cable meters (1300 cable feet). Any home within 150 feet of a proposed cable location will be included for the purpose of determining such density.

(B) It is hereby declared to be the policy of Grantee and City to extend cable service to as many homes as possible within the territorial limits of the City. Accordingly, City agrees to facilitate the wiring of homes and subdivisions by adoption of the procedures hereafter set forth, and Grantee agrees to provide and install cable, at no cost, upon the terms and conditions hereafter set forth:

(1) In all new subdivisions, the City hereby requires that the developer of any such subdivision shall notify Grantee of its intent to install electrical utilities at least ten days prior to the date that trenches shall be opened for the purpose of the installation of such electrical utilities, and such developer and Grantee shall work together to provide an opportunity for installation of underground cable wiring throughout the streets of such proposed subdivision while such trenches are open. All such cable shall be installed in a manner so as to comply with the requirements of the electric utility provider and all applicable codes. Such cable shall be provided and placed in the open trench at the expense of Grantee. Such trench shall be opened and, upon completion of the necessary work, closed and back-filled, at the expense of developer.

(2) In any new home constructed within the City, whether or not cable T.V. home service is currently available to such home and whether or not the owner or occupant agrees to utilize such service, Grantee will prewire such residential structure for future utilization of cable T.V. services, upon condition that Grantee is provided at least ten (10) days notice of opportunity to prewire such structure, prior to the covering of walls or the making of other enclosures which would unreasonable interfere with the procedures required for such prewiring. City will reasonably cooperate with Grantee in establishing public awareness of such service. (Ord. O-409, §3.14, 1996; Ord. O-441, §1(part), 1998)

12.08.190 Franchise Fee. Grantee shall pay to the City of Yamhill a franchise fee equal to 5% of Gross Revenues received by Grantee from the operation of the Cable System on an annual basis. For the purpose of this section, the 12-month period applicable under the Franchise for the computation of the franchise fee shall be a calendar year. The franchise fee payment shall be due and payable ninety (90) days after the close of the preceding calendar year. Each payment shall be accompanied by a brief report from a representative of Grantee showing the basis for the computation. In no event, shall the franchise fee payments required to be paid by Grantee exceed 5% of gross revenues received by Grantee in any 12-month period. (Ord. O-409, §4.1, 1996; Ord. O-441, §1(part), 1998)

12.08.200 Rates and Charges. Said Grantee shall have the right to charge and collect reasonable compensation from all persons and corporations to whom said electronic transmission service shall be furnished (including installation charges), subject to any rules and regulations of legally constituted regulatory bodies of the County, State, or Federal Government. (Ord. O-409, §4.2, 1996; Ord. O-441, §1(part), 1998)

12.08.210 Renewal of Franchise. The City of Yamhill and the Grantee agree that any proceedings undertaken by the City of Yamhill that relate to the renewal of the Grantee's Franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act (as such existed as of the effective date of the Cable Act), unless the procedures and substantive protections set forth therein shall be deemed to be preempted and superseded by the provisions of any subsequent provisions of federal or state law.

In addition to the procedures set forth in said Section 626 (a), the City of Yamhill agrees to notify Grantee of its preliminary assessments regarding the identity of future cable related community needs and interests, as well as, the past performance of Grantee under the then current franchise term. The City of Yamhill further agrees that such a preliminary assessment shall be provided to the Grantee prior to the time that the four (4) month period referred to in subsection (c) of Section 626 is considered to begin. Notwithstanding anything to the contrary set forth in this Section 12.08.210, the Grantee and City of Yamhill agree that at any time during the term of the then current franchise, while affording the public appropriate notice and opportunity to comment, the City of Yamhill and Grantee may agree to undertake and finalize negotiations regarding renewal of the then current franchise and the City of Yamhill may grant a renewal thereof. The Grantee and the City of Yamhill consider the terms set forth in this section to be consistent with the express provisions of section 626 of the Cable Act. A reproduction of section 626 of the Cable Act as such existed as of schedule 2 and incorporated herein by this reference. (Ord. O-409, §4.3, 1996; Ord. O-441, §1(part), 1998)

12.08.220 Conditions of Sale. If a renewal of Grantee's Franchise is denied and the City of Yamhill either acquires ownership of the Cable System or transfers ownership to another party, any such acquisition or transfer shall be at a fair market value, determined on the basis of the Cable System valued as a going concern, but with no value allocated to the Franchise itself.

If Grantee's Franchise is revoked for cause and the City of Yamhill acquires ownership of the Cable System or by its actions effects a transfer of ownership of the Cable System to another person, any such acquisition or transfer shall be at an equitable price. Grantee and the City of Yamhill agree that in the case of a revocation, at Grantee's request, which shall be made in its sole discretion, Grantee shall be given a reasonable opportunity to effectuate fair market value, determined on the basis of the Cable System valued as an ongoing concern. The City of Yamhill further agrees that during such a period of time, it shall authorize the Grantee to continue to operate pursuant to the terms of its prior Franchise; however, in no event shall such authorization exceed a period of time greater than six (6) months from the effective date of such revocation. If, at the end of that time, Grantee is unsuccessful in procuring a qualified transferee or assignee of its Cable System, which is reasonably acceptable to the City of Yamhill, Grantee and City of Yamhill may avail themselves of any rights they may have pursuant to federal or state law; it being further agreed that Grantee's continued operation of its Cable system during the six (6) month period shall not be deemed to be a waiver, nor an extinguishment of, any rights of either the City of Yamhill or the Grantee. Notwithstanding anything to the contrary set forth in section 12.08.220, neither City of Yamhill nor Grantee shall be required to violate federal ar state law. (Ord. O-409, §4.4, 1996; Ord. O-441, §1(part), 1998)

12.08.230 Transfer of Franchise. Grantee's right, title, or interest in the Franchise shall not be sold, transferred, assigned or otherwise encumbered, other than to an affiliate, without the prior express written consent of the City of Yamhill, such consent not to be unreasonably withheld. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, or by assignment of any rights, title, or interest of Grantee in the Franchise of Cable System in order to secure indebtedness. (Ord. O-409, §4.5, 1996; Ord. O-441, §1(part), 1998)

12.08.240 Testing for Compliance. System during reasonable time and in a manner which does not unreasonably interfere with the normal business operations of the Grantee or the Cable System in order to determine whether or not the Grantee is in compliance with the terms hereof and applicable state or federal laws. Except in emergency circumstances, such tests may be undertaken only after giving Grantee reasonable notice thereof, not to be less than two (2) business days and providing a representative of Grantee an opportunity to be present during such tests. In the event that such testing demonstrates that the Grantee has substantially failed to comply with a material requirement hereof, the reasonable costs of such tests shall be borne by the Grantee. In the event that such testing demonstrates that Grantee has substantially complied with such material provisions hereof, the cost of such testing shall be borne by the City of Yamhill. Except in emergency circumstances, the City of Yamhill agrees that such testing shall be undertaken no more than six (6) times a year in the aggregate, and that the results thereof shall be made available to the Grantee upon Grantee's request. (Ord. O-409, §5.1, 1996; Ord. O-441, §1(part), 1998)

12.08.250 Books and Records. The Grantee agrees that the City of Yamhill may review such of its books and records as are reasonably necessary to monitor compliance with the terms hereof. Such records shall include, but shall not be limited to, any public records required to be kept by the Grantee pursuant to the rules and regulations of the FCC. Notwithstanding anything to the contrary set forth herein, Grantee shall not be required to disclose information which it reasonably deems to be proprietary or confidential in nature. The City of Yamhill agrees to treat any information disclosed by the Grantee to it on a Confidential basis, and only to disclose it to employees, representatives, and agents thereof that have a need to know, or in order to enforce the provisions hereof. (Ord. O-409, §5.2, 1996; Ord. O-441, §1(part), 1998)

12.08.260 Insurance Requirements. Grantee shall maintain in full force and effect, at its own cost and expense, during the term of the Franchise, General Comprehensive Liability Insurance in the amount of $500,000. for bodily injuries, (including accidental death) to any one person, and subject to the same limit for each person in amount not less than $500,000. on account of any one occurrence, and Property Damage Liability Insurance in an amount not less that $100,000. resulting from any one occurrence. Said insurance shall designate the City of Yamhill as an additional named insured. Such insurance shall be non-cancelable except upon sixty (60) days prior written notice to the City of Yamhill. (Ord. O-409, §6.1, 1996; Ord. O-441, §1(part), 1998)

12.08.270 Indemnification. The Grantee agrees to indemnify, save and hold harmless and defend the City of Yamhill, its officers, boards and employees, from and against any liability for damages and for any liability or claims resulting from property damage or bodily injury, (including accidental death), which arise out of the Grantee's construction, operation, or maintenance of its Cable System, including, but not limited to, reasonable attorney's fees and costs. (Ord. O-409, §6.2, 1996; Ord. O-441, §1(part), 1998)

12.08.280 Bonds and Other Security. Except as expressly provided herein, Grantee shall not be required to obtain or maintain bonds or other surety as a condition of being awarded the Franchise or continuing its existence. In the event that one is required in the future, the City of Yamhill agrees to give Grantee at least sixty (60 days prior notice thereof stating the exact reason for the requirement. Such reasons must demonstrate a change in the Grantees legal, financial or technical qualifications which would materially prohibit or impair its ability to comply with the terms of the Franchise or afford compliance therewith. (Ord. O-409, §6.3, 1996; Ord. O-441, §1(part), 1998)

12.08.290 Notice of Violation. In the event that the City of Yamhill believes that the Grantee has not complied with the terms of the Franchise, it shall notify Grantee of the exact nature of the alleged non-compliance. (Ord. O-409, §7.1, 1996; Ord. O-441, §1(part), 1998)

12.08.300 Grantee's Right to Cure and Duty to Respond. Grantee shall have ten (10) days from receipt of the notice described in section 12.08.290 to acknowledge receipt of the notice of violation and Grantee's intent to contest or cure. Grantee shall have thirty (30) days from the receipt of the notice to; (a) respond to the notice of violation contesting the assertion of non-compliance; or (b) to cure such default or, in the event that, by the nature of default, such default cannot be cured within the thirty (30) day period, initiate reasonable steps to remedy such default and notify the City of Yamhill of the steps being taken and the projected date that they will be completed. (Ord. O-409, §7.2, 1996; Ord. O-441, §1(part), 1998)

12.08.310 Public Hearing. In the event that Grantee fails to respond to the notice described in section 12.08.290 pursuant to the procedures set forth in section 12.08.300, or in the event that the alleged default is not remedied within sixty (60) days after the Grantee is notified of the alleged default pursuant to section 12.08.290, the City of Yamhill shall schedule a public meeting to investigate the default. Such public meeting shall be held at the next regularly scheduled meeting of the City of Yamhill which is scheduled at a time which is no less than ten (10) business days therefrom. The City of Yamhill shall notify the Grantee of the time and place of such meeting and provide the Grantee with an opportunity to be heard. (Ord. O-409, §7.3, 1996; Ord. O-441, §1(part), 1998)

12.08.320 Enforcement. Subject to applicable federal and state law, in the event the City of Yamhill, after such meeting, determines the Grantee is in default of any provision of the Franchise, the City of Yamhill may:

(A) Foreclose on all or any part of any security provided under this franchise, if any, including, without imitation, any bonds or other surety; provided, however, the foreclosure shall only be in such a manner and in such amount as the City of Yamhill reasonably determines is necessary to remedy the default;

(B) Commence an action at law for monetary damages or seek other equitable relief;

(C) In the case of a substantial default of a material provision of the franchise, declare the franchise agreement to be revoked; or

(D) Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages.

The Grantee shall not be relieved of any of its obligations to comply promptly with any provision of the franchise by reason of any failure of the City of Yamhill to enforce prompt compliance. (Ord. O-409, §7.4, 1996; Ord. O-441, §1(part), 1998)

12.08.330 Acts of God. The Grantee shall not be held in default or non-compliance with the provisions of the franchise nor suffer any enforcement or penalty relating thereto, where such non-compliance or alleged defaults are caused by strikes, act of God, power outages, or other events reasonably beyond its ability to control. (Ord. O-409, §7.5, 1996; Ord. O-441, §1(part), 1998)

12.08.340 Documents Incorporated and Made a Part Hereof. The following documents shall be incorporated herein by this reference, and in the case of a conflict or ambiguity between the, the document of latest date shall govern:

(A) Any enabling ordinance in existence as of the date hereof, and

(B) Any franchise agreement between Grantee and City of Yamhill reflecting the renewal of the franchise, if any. (Ord. O-409, §8.1, 1996; Ord. O-441, §1(part), 1998)

12.08.350 Preemption. If the FCC, or any other federal or state body or agency shall now or hereafter exercise any paramount jurisdiction over the subject matter of the franchise, then to the extent such jurisdiction shall preempt and supersede or preclude the exercise of the like jurisdiction of the City of Yamhill, the jurisdiction of the City of Yamhill shall cease and no longer exist. (Ord. O-409, §8.2, 1996; Ord. O-441, §1(part), 1998)

12.08.360 Actions of Franchising Authority. In any action by the City of Yamhill or representative thereof mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld. (Ord. O-409, §8.3, 1996; Ord. O-441, §1(part), 1998)

12.08.370 Descriptive Heading. The captions to sections contained herein are intended solely to facilitate the reading thereof. Such captions shall not affect the meaning or interpretation of the test herein. (Ord. O-409, §8.4, 1996; Ord. O-441, §1(part), 1998)

12.08.380 Severability. If any section, sentence, paragraph, term or provision hereof is determined to be illegal, invalid or unconstitutional, by any court of common jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such determination shall have no effect on the validity of any other section, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of the franchise or any renewal or renewals thereof. (Ord. O-409, §8.5, 1996; Ord. O-441, §1(part), 1998)

Sections:

12.12.010 Short Title

12.12.020 Purpose, Policy and Scope

12.12.030 Definitions

12.12.040 Grant of Exclusive Franchise

12.12.050 Franchise Term

12.12.060 Franchise Fees

12.12.070 Rates

12.12.080 Billings

12.12.090 Prohibitions and Limitations

12.12.100 Persons and Practices Exempt From Franchise

12.12.110 Franchisee Responsibility

12.12.120 Subcontracts

12.12.130 Special Services

12.12.140 Transfer Of The Franchise

12.12.150 Suspension, Modification or Termination of Franchise

12.12.160 Termination of Service

12.12.170 Public Responsibilities

12.12.180 Violations

12.12.190 Enforcement

12.12.200 Penalties

12.12.210 Appeals

12.12.220 Severability

12.12.230 Descriptive Heading

12.12.010 Short Title. This Chapter shall be known as the "Solid Waste Management and Resource Recovery Chapter" and may be so cited and pleaded and shall be cited herein as this "Chapter." As used in this Chapter, "Section" refers to a section of this Chapter. (Ord. O-349, §1, 1984; Ord. O-441, §1(part), 1998)

12.12.020 Purpose, Policy and Scope.

(A) To protect the public health, safety, welfare and environment and to conserve energy and natural resources within the City of Yamhill, and, further, to carry out the recycling, reuse and other resource recovery and waste reduction requirements of the State of Oregon and of ORS Chapter 459, Oregon Laws 1983, it is declared to be the policy of the City of Yamhill to establish and to implement programs to:

(1) Carry out the responsibility and the authority granted, delegated and imposed by ORS Chapter 459.

(2) Insure present and future safe, efficient and economical accumulation, storage, collection, transportation, disposal, or resource recovery of or from solid waste.

(3) Insure maintenance of a financially stable, reliable, solid waste collection service and facilities.

(4) Eliminate potential overlapping service to reduce truck traffic, street wear, air, water and land pollution, and noise.

(5) Insure rates that are just, fair, reasonable, and adequate to provide necessary service to the Public.

(6) Provide for technologically and economically feasible recycling pursuant to City, county, and state adopted waste reduction and recycling and reuse plans.

(7) Prohibit rate preferences and other discriminatory practices which might benefit one or fewer users at the expense of other users of the service or the general public.

(8) Provide standards for solid waste service and public responsibilities.

(9) Provide the basis for coordinated planning and cooperation between the City, county and other local and state government units to achieve purposes of this Chapter.

(10) Protect against improper and dangerous handling of hazardous wastes.

(11) Provide a basis and incentive for investment in waste handling equipment, facilities, sites, systems and new technology.

(B) The authority granted under the terms of this franchise is also for the purpose of accomplishing the objectives set forth in ORS Chapter 459, as amended by Chapter 729 Oregon Laws 1983. This authority and responsibility includes recycling as required in Sections 10 and 14 of Chapter 729, Oregon Laws 1983. The authority granted herein shall also carry out the following:

(1) The purposes of ORS 459.105.

(2) The recycling, reuse and other requirements of Oregon Laws 1983 (S.B. 405) enacted as Chapter 729.

(3) The requirements of the waste reduction program adopted by Yamhill County and approved by the Oregon Department of Environmental Quality.

(4) The State Solid waste management Plan and the adopted Department of Environmental Quality Approved Yamhill County and Chemeketa Region solid waste management plans.

(5) The Oregon Land Conservation and Development Goals No. 6 and 11 on Environment and Public Facilities, respectively.

(6) Applicable requirements of the Federal Resource Conservation and Recovery Act of 1976, as amended.

(7) Applicable requirements and Provisions of ORS 468.220 (6) and 646.740.

(8) Applicable rules, requirements, standards and regulations promulgated under the above. (Ord. O-349, §2, 1984; Ord. O-441, §1(part), 1998)

12.12.030 Definitions.

"Council". The City Council of the City of Yamhill.

"Disposal Site". Land and facilities used for the disposal, handling or transfer or resource recovery from solid wastes, including but not limited to dumps, landfills, sludge lagoons, sludge treatment facilities, incinerators for solid waste delivered by the public or by a solid waste collection service, disposal sites for stations, resource recovery facilities, and composting plants; but the term does not include a facility subject to the permit requirements of ORS 468.740; nor a landfill site which is used by the owner or person in control of the premises to dispose of soil, rock, concrete, or other similar non-decomposable material, unless the site is used by the public either directly or through a solid waste collection service; nor a site licensed pursuant to ORS 481.345.

"Franchise". The right to provide service granted to a person pursuant to this Chapter. "Franchisee" is the person to whom the franchise is granted.

"Hazardous Wastes". Any wastes defined as hazardous wastes by or pursuant to ORS Chapter 459; or defined as hazardous wastes by another governmental unit having jurisdiction; or found by the franchisee to be hazardous to service workers, to service equipment, or to the public.

"Person". The State of Oregon or a public or private corporation, local government unit, public agency, individual, partnership, association, firm, trust, estate or any other legal entity.

"Putrescible Material". Organic materials that can decompose and may give rise to foul smelling, offensive odors or products.

"Recyclable Material". Any material or group of materials that can be collected and sold.

"Resource Recovery". The process of obtaining useful material or energy resources from solid waste, and includes:

"Energy Recovery". Recovery in which all or a part of the solid waste materials are processed to utilize the heat content (or other forms of energy) of or from the material.

"Material Recovery". Any process of obtaining from solid waste, by pre-segregation or otherwise, materials which still have useful physical or chemical properties after serving a specific purpose and can, therefore, be reused or recycled for the same or other purposes.

"Recycling". Any process by which solid waste materials are transformed into new products in such a manner that the original products may lose their identity.

"Reuse". The return of a commodity into the economic stream for use in the same kind of application as before without change in its identity.

"Service". The collection, transportation or disposal of or resource recovery from solid waste.

"Solid Waste". All putrescible and non-putrescible wastes; including but not limited to garbage, rubbish, refuse, ashes, waste paper, and cardboard; sewage sludge, septic tank and cesspool pumpings or other sludge; commercial, industrial, demolition, and construction wastes; discarded or abandoned vehicles or parts thereof; discarded home and industrial appliances, manure, vegetable or animal solid and semisolid wastes, dead animals and other wastes; but the term does not include:

"Hazardous wastes" as defined in ORS 459.410.

"Materials used for fertilizer" or for other productive purposes or which are salvageable, as such materials are used on land in agricultural operations and the growing or harvesting of crops and the raising of fowl and animals.

"Solid Waste Management". The prevention or reduction of solid waste; management of the storage, collection, transportation, treatment, utilization, processing and final disposal of solid waste; or resource recovery from solid waste; and facilities necessary or convenient to such activities.

"Waste". Useless or discarded materials.

"Source Separate". The process of separating recyclable material from solid waste.

"Waste Reduction". Reduction of the volume of waste that would otherwise be disposed of in a landfill disposal site through techniques such as source reduction, recycling, reuse or other resource recovery. (Ord. O-349, §3, 1984; Ord. O-441, §1(part), 1998)

12.12.040 Grant of Exclusive Franchise.

(A) There is hereby granted to McMinnville City Sanitary Service, Inc., an Oregon corporation, the exclusive right, privilege and franchise to provide service within the City limits as of the effective date of this Chapter, and, subject to provisions of ORS 459.08, any area that may hereafter be annexed to the City. In addition to the grant of franchise, the franchisee is authorized use of the streets and facilities of the City as necessary to provide service.

(B) The franchise granted by this section is based upon the pre-qualification and qualifications of the franchisee as set forth in franchisee's application and the findings which accompany this Chapter. (Ord. O-349, §4, 1984; Ord. O-441, §1(part), 1998)

12.12.050 Franchise Term.

(A) The rights, privileges and franchise granted under Section 12.12.040 of this Chapter shall be in full force and effect upon the first day of October, 1984, subject to the terms, conditions and payment of franchise fees to the City as set forth in this Chapter.

(B) Unless the Council acts to terminate further renewals of the franchise herein granted, each January first, the franchise is renewed for a term of five years running from that January first renewal. If the Council gives written notification of termination of further renewals, which may be with or without cause, the franchisee shall have a franchise which will terminate in four years from date of mailing of the notice of such termination by certified mail, return receipt requested. The Council may later extend the term or reinstate the continuing renewal provision upon mutual agreement with the franchisee. Nothing in this section restricts the Council from suspending, modifying or terminating the franchise for cause pursuant to Section 12.12.150. (Ord. O-349, §5, 1984; Ord. O-441, §1(part), 1998)

12.12.060 Franchise Fees.

(A) In consideration of the franchise granted by this Chapter and for other privileges granted, including but not limited to use of the City streets, the franchisee shall pay a fee equal to 3% of the gross cash receipts resulting from any solid waste services which specifically require a franchise under this Chapter. When any other person without a franchise may conduct the same activities, business or service within the City, no franchise fees shall be payable. To stimulate recycling and reuse and make more materials recyclable, no franchise fee shall apply to gross receipts from collection or sales of recyclable or reusable materials.

(B) Such franchise fees shall be computed on a quarterly basis and be paid thirty days following the end of each quarter of the calendar year. Franchisee shall maintain an adequate bookkeeping system showing the gross cash receipts resulting from all franchised solid waste services conducted. Records shall be open at reasonable times for audit by authorized personnel designated by the City. (Ord. O-349, §6, 1984; Ord. O-441, §1(part), 1998)

12.12.070 Rates.

(A) The rates to be charged to all persons by franchisee shall be adequate, reasonable, uniform and based upon the level and type of service rendered.

(B) Nothing in this section is intended to prevent:

(1) The reasonable establishment of uniform classes of rates based on the type of waste collected, transported, disposed of, recycled or resource recovered; or the number, type, and location of customers served; or upon other factors, so rates are reasonably based on the cost of the particular service.

(2) Franchisee from volunteering service at reduced cost for a civic, community, benevolent or charitable purpose.

(C) Except as provided in subsection (D) of this section, a rate adjustment shall be made annually pursuant to the following procedures:

(1) The franchisee shall submit to the City a request for a change in the established rates based on the August CPI-U West C. This request for adjustment may not exceed four percent in one year. This document shall be submitted to the City by November 1st of each year.

(2) Within thirty days following the written request for a rate change, the City shall:

(a) Make specific findings on the validity and justification for a rate change.

(b) Forward a copy of findings, the franchisee's request and a copy of the amended rates to the franchisee.

(c) These rates shall go into effect automatically January 1st of the next year.

(3) Should the August CPI-U West C, exceed four percent, the franchisee may request a supplemental rate adjustment by following the terms of subsection (D).

(a) The franchisee may submit the supplemental rate adjustment on November 1st or may submit the request at a later date.

(D) As an exception to the annual rate review procedure provided in subsection (C), when there has been a substantial and significant unanticipated increase or decrease in a single cost or group of costs since the last rate adjustment, the franchisee or City may apply for a supplemental rate adjustment based on the contributory factors.

(1) In the event either the City or franchisee proposes a rate change, written notice shall be given to the City or Franchisee respectively.

(2) The notice of proposed rates shall include the new proposed rates and a statement including relevant facts or dates justifying the proposed rate.

(3) Within thirty days following the written request for a rate change, the Council shall make specific findings of fact.

(a) The Council shall give due consideration to the following relevant factors; changes in cost of operation, comparative collection rates of other cities, cost of acquiring and replacing equipment, cot of providing for future, added or different service, a reasonable return to franchisee for doing business based on a percentage of the gross receipts from the franchised business, cost of recycling services, and cost of meeting growth in service or capital requirement.

(b) Based upon the findings, the Council shall render a decision which shall recommend either that the request for a rate change be approved or denied, or that the rate change requested be approved in a different form to the City Council.

(4) Upon receipt of the Council's recommendation, findings of the facts and any other materials deemed necessary for a decision, the Council shall call a public hearing on the proposed rate change.

(a) The public hearing shall be held at the earliest practicable meeting.

(b) Notice of public hearing shall be published in a newspaper of general circulation in the City, not less than five days nor more than fifteen days prior to the date of public hearing.

(5) Public hearings shall be conducted by any or all of the rules specified by the City of Yamhill.

(6) Any public hearing may be continued to a specified day by oral pronouncement prior to the close of such hearing and such pronouncement shall serve as sufficient notice of such continuance to all interested persons.

(7) Within thirty days of the public hearing, the Council shall;

(a) Adopt the proposed modification in the rate schedule by enacting an appropriate resolution; or

(b) Refuse to adopt the amendment through a vote to deny.

(E) Rates established by the Council are fixed rates and franchisee shall not charge more or less than the fixed rate except as provided in this subsection and paragraph (2) of subsection (C) above.

(F) When no rate has been established for a service which the franchisee can provide at customer request, the franchisee shall charge a rate based on the factors outlined in Section 12.12.070 (A), and (D) (3) (a).

(G) Until changed by, the Council in an appropriate resolution, rates to be charged are those in effect on the effective date of this ordinance. (Ord. O-349, §7, 1984; Ord. O-409, §1, 1996; Ord. O-441, §1(part), 1998)

12.12.080 Billings.

(A) The franchisee may require advance payment for residential and multi-family residential service for up to three months in advance; in addition, the franchisee may bill up to three months in advance, or any combination thereof. When service is terminated which was paid for in advance, the franchisee will refund a pro-rata portion of the payment for any period in which service was not provided. When billed in advance, no rate adjustment shall be effective until the end of the advance billing. Accounts billed three months in advance shall not be considered delinquent until after sixty days from initial billing.

(B) The franchisee may charge at the time of or in advance of providing service for any customer who has not established credit with the franchisee. The franchisee may consider in approving or disapproving credit, credit information used in the normal course of business practice by other businesses.

(C) Credit for one week of vacation or more will be issued when prior notice has been given. (Ord. O-349, §8, 1984; Ord. O-441, §1(part), 1998)

12.12.090 Prohibitions and Limitations. No person shall:

(A) Provide service or offer to provide service without first having obtained a franchise from the City of Yamhill.

(B) Accumulate, store, collect, transport, dispose of or resource recover solid wastes except in compliance with this Chapter, other City Ordinances, ORS Chapter 459 as amended by Oregon Laws 1983 (S.B. 405, enacted as Chapter 729) all relating to solid waste management and any rules or regulations or amendments promulgated under any of the foregoing. (Ord. O-349, §9, 1984; Ord. O-441, §1(part), 1998)

12.12.100 Persons and Practices Exempt From Franchise.

(A) Nothing in this Chapter requires a franchise from the following persons for the following businesses or practices:

(1) Transportation of solid waste by a person (generated or produced by such person) to a disposal site, resource recovery site or market so long as such person complies with this Chapter, other City Ordinances, and ORS Chapter 459 relating to solid waste management and regulations promulgated under any of the foregoing. Except as otherwise provided in this paragraph, in the case of a residential dwelling unit (whether individually owned, nonowner occupied, or grouped through an association or cooperative of property owners) any waste generated or produced is owned by the individual owner, occupant and, not by the landlord, property owner, cooperative or association or property manager or agent of such person.

(a) A person owning, managing or entitled to possession of the property may haul wastes unlawfully left by a tenant or occupant at the end of the term of the tenancy or occupancy.

(2) Transporting, disposing of or resource recovering sewage sludge, septic tank pumpings, and cesspool pumpings.

(3) Any person licensed as a motor vehicle wrecker under ORS 481.345 et. seg. from collecting, transporting, disposing of or utilizing motor vehicles or motor vehicle parts.

(4) A contractor employed to demolish, construct or remodel a building or structure, including hut not limited to land clearing operations and construction wastes, when the wastes hauled by such contractor are hauled in vehicles owned by, under the control of or in the possession of the contractor and hauled by contractors' employees as a regular part of their employment.

(5) The collection, transportation and reuse of repairable or cleanable discards by private charitable organizations regularly engaged in such business or activity, including, but not limited to Salvation Army, Goodwill Industries, and similar organizations.

(6) The collection, transportation or redemption of beverage containers under ORS Chapter 459, including and limited to that portion commonly known as the "Bottle Bill," together with other related statutes or regulations promulgated thereunder or under ORS Chapter 459.

(7) A person transporting or disposing of wastes that such person produces as an incidental part of the regular carrying on of business or janitorial service, gardening or landscaping service; or, rendering. "Janitorial service" does not include the collection and pickup of accumulated or stored wastes.

(8) The collection, transportation and reuse of recycling of totally source-separated materials or operation of a collection center for totally source-separated materials by a religious, charitable, benevolent or fraternal organization, which organization was not organized for nor is operated for any solid waste management purpose and which organization is using the activities for fund-raising, including but not limited to Scouts, churches, service clubs, and similar organizations.

(9) Recyclable material collection, handling, processing, transportation or marketing when the recyclable material is source separated by the generator and is purchased from or exchanged by the generator for fair market value for recycling or reuse.

(B) Nothing in this Chapter requires:

(1) The franchise to store, collect, transport, dispose of or resource recover any hazardous waste; provided, however, the franchisee may engage in the management of hazardous wastes in compliance with all City, local, state, and federal laws, rules or regulations.

(C) The City Council may withdraw any other practice, business or activity by resolution of the Council, after public hearing thereon, and based upon written findings that the exemption carries out the purposes of Section 12.12.020, including without limitation recycling and reuse, waste reduction or financing programs or policies that there is a need for the proposed service; that the franchisee cannot or will not provide the proposed service; that the applicant has the necessary equipment, personnel, finances, and experience to provide the service; and, that the granting of the exception will not be materially detrimental or have a substantial impact on service, consumer rates or the business franchised under this Chapter.

(1) Prior to granting such an exception, the City shall give thirty days prior written notice from date of mailing by certified mail, return receipt requested, to the franchisee of the public hearing and the proposed basis of the exception. (Ord. O-349, §10, 1984; Ord. O-441, §1(part), 1998)

12.12.110 Franchisee Responsibility.

(A) The franchisee shall:

(1) Furnish sufficient collection vehicles, containers, facilities, personnel, finances and scheduled days of collection in each area of the City as necessary to provide for all types of service required under this Chapter, including residential, commercial containers, drop box, recycling and reuse; or subcontract with others to provide such service pursuant to this Chapter; provided, however, that the franchisee shall remain responsible for performance and quality of the service required by or under this Chapter. No subcontract shall be issued by the franchisee unless approved by the City.

(2) Furnish the level and type of services provided on the effective date of this Chapter together with any additional services or changes in services as directed by the City Council, including, but not limited to recycling and reuse or waste reduction, and at rates established by the Council. When emergency services are needed, the City may direct the franchisee to provide special emergency services.

(3) Except as provided in Section 12.12.150 and except for will-call collections, make residential collections no less often than once a week for putrescible materials.

(4) Permit inspection by the City of franchisee's facilities, equipment, books, and personnel at reasonable times.

(B) The franchise shall provide the level of recycling and reuse service required by Chapter 729, Oregon Laws 1983 (S.B. 405) and the waste reduction plan of Yamhill County, as approved, together with applicable existing or future ordinances and laws, regulations, standards or guidelines promulgated thereunder.

(1) The minimum level of those recycling and reuse and waste reduction services as required on the effective date of this Chapter and which are a continuing responsibility of the franchisee are as follows. Franchisee hereby agrees to:

(a) Operate a recycling depot at 1850 Lafayette Avenue, McMinnville, Oregon, for the purpose of providing a public facility where residents may take recyclable materials.

(b) Provide at least a once a month curbside collection of recyclable materials for all single-family residential customers within the City. Recyclable materials to be collected are properly cleaned and prepared newspapers, tinned cans, aluminum, glass and cardboard.

(c) Provide collection of recyclable materials from commercial, industrial, institutional, governmental, and multi-family residential sources at least monthly, or as otherwise directed.

(d) Provide notice to potential and actual recycling and reuse sources and sponsor educational and promotional activities to increase public participation in recycling.

(e) Provide any additional recycling or reuse service as directed by the Council when the Council finds that is now or hereafter required by any recycling and reuse plans of the City or Yamhill County or a wasteshed area, including either/or the waste reduction plan of Yamhill County or the state, or as required by any ordinance or statute or regulations promulgated thereunder.

(C) The City and franchisee mutually agree that:

(1) Pursuant to Chapter 729, Oregon Laws 1983, the net cost of any required or permitted recycling and the cost of any notice, educational or promotional service shall be considered as a cost of doing business, shall be repaid to the franchisee as part of the rate base, and shall he considered in all future rate adjustments. When there is a significant cost in the above that has not previously been included in the rate base, it may be considered by the franchisee as an additional, unanticipated cost and franchisee may apply for a supplemental rate increase.

(2) The franchisee may subcontract (all or a portion of the recycling, reuse, notice, educational and promotional activities or any other waste reduction program created under the terms of this Chapter) to a profit or nonprofit corporation or other person; provided, however, that the franchisee shall remain liable for the performance of and quality of all service required under this Chapter. No subcontract shall be issued by the franchisee unless approved by the City.

(D) The franchisee shall:

(1) Keep in force public liability insurance in the amount of not less than $1,000,000 combined single limit for personal injury and $100,000 property damage, all relating to a single occurrence, which shall be evidenced by a certificate of insurance filed with the City Recorder. The certificate shall include the City as named-insured. The franchisee agrees to and shall indemnify and save the city harmless against liability or damage which may arise or occur from any injury to persons or property or enforcement resulting from franchisee's operation under this Chapter. The insurance shall provide that it may not be cancelled without giving thirty days written notice to the City.

(2) Resource recover or dispose of collected wastes in compliance with applicable city, county, and state statutes, including without limitation ORS Chapter 459 and regulations promulgated under any of the above. All collected wastes which are not resource recovered shall be delivered to a Landfill for disposal.

(3) It shall be a continuing obligation of the franchisee to assist in providing the necessary revenue to repay county industrial bonds issued to finance said site and to comply with requirements of Yamhill County, the State Department of Environmental Quality, and Oregon Environmental Quality Commission, and the State of Oregon.

(4) Not later than ten days before the effective date of this Chapter, file with the City Recorder a written acceptance of the exclusive franchise granted by Section 12.12.040. (Ord. O-349, §11, 1984; Ord. O-441, §1(part), 1998)

12.12.120 Subcontracts. The franchisee may subcontract with others to provide a portion of required service when the franchisee does not have the necessary equipment or service capability. Such a subcontract shall not relieve franchisee of total responsibility for providing and maintaining service in compliance with this franchise and this Chapter. No subcontract shall be issued by the franchisee unless approved by the City. (Ord. O-349, §12, 1984; Ord. O-441, §1(part), 1998)

12.12.130 Special Services. The franchisee shall require a contract from a customer or customers who require an unusual service involving added or specialized equipment solely to provide that service. The purpose of this subsection is to prevent the added cost from being assessed against other ratepayers if the customer later withdraws from service. The terms of this contract shall specifically provide for this protection. The City shall be consulted prior to any subcontract being entered into, and the Council shall assure themselves that adequate protection exists within the terms of said subcontract that any liabilities that may be created are not transferred to other ratepayers. The subcontract shall be submitted to the City at least thirty days prior to the date said subcontract is proposed to go into effect. In the event the Council is not "assured", then the provisions of Section 12.12.150 may be invoked by either party. (Ord. O-349, §13, 1984; Ord. O-441, §1(part), 1998)

12.12.140 Transfer Of The Franchise. Any transfer or assignment of the franchise granted in this Chapter, or a stock transfer, that would change the controlling interest as now exists shall not become effective until submitted to and approved by the Council. The Council may invoke Section 12.12.150 for failure to comply with this paragraph or the conditions imposed by the Council hereunder. (Ord. O-349, §14, 1984; Ord. O-441, §1(part), 1998)

12.12.150 Suspension, Modification or Termination of Franchise.

(A) Failure to comply with a written notice to provide the service required by this Chapter, or to otherwise comply with the provisions of this Chapter after written notice shall be grounds for modification, termination or suspension of the franchise herein granted.

(1) After written notice from the Council is served either in person or by certified mail that such grounds exist, the franchisee shall have ten days from the date of mailing or serving of the notice in which to comply, to request a public hearing before the Council, or to request an extension of the time allowed for compliance as specified in this subsection. The Council may grant said extension if the franchisee can show good cause.

(2) In the event the franchisee or the City requests a hearing, the franchisee shall be given ten days notice in advance of the time, date and place of the hearing.

(3) At a Public hearing, the franchisee and other interested persons shall be given an opportunity to present oral, written or documentary evidence to the Council. The findings of the Council thereon shall be conclusive; provided, however, that such action may be appealed to a court of competent jurisdiction.

(4) If the franchisee fails to comply with the written notice within the specified time or fails to comply with the order of the Council entered upon the basis of written findings at the public hearing, the Council may suspend, modify, or terminate the franchise or make such action contingent upon continued noncompliance.

(B) In the event that the Council finds an immediate and serious danger to the public through creation of health or safety hazard, it may take action to alleviate such condition within a time specified in the notice to the franchisee and without a public hearing prior to taking such action. (Ord. O-349, §15, 1984; Ord. O-441, §1(part), 1998)

12.12.160 Termination of Service. The franchisee shall not terminate service to all or a portion of his customers unless:

(A) The street or road access is blocked and there is no alternative route, provided that the franchisee shall restore service not later than twenty-four hours after street or road access is re-opened.

(B) As determined by the franchisee, excessive weather conditions render providing service unduly hazardous to persons providing service or to the public, or such termination is caused by accidents or casualties caused by an act of God, a Public enemy, or a vandal.

(C) The customer does not comply with the service standards of Section 12.12.170. (Ord. O-349, §16, 1984; Ord. O-441, §1(part), 1998)

12.12.170 Public Responsibilities. To achieve the purposes of this Chapter; to comply with safety, health and environmental safeguards; and, in addition to compliance with ORS Chapter 459 and regulations promulgated pursuant thereto:

(A) Solid waste cans shall have tapered sides, a bail or two handles on opposite sides, a close-fitting lid with handle, not exceed thirty-two gallons capacity, and be watertight in construction. Cans shall be made of metal or some rigid material that will not crack or break in freezing weather and be waterproof, rodent-resistant and easily cleanable. No solid waste can shall exceed sixty pounds gross loaded weight.

(B) Sunken refuse cans or containers shall not be serviced unless they are place above ground by the customers for service.

(C) On the scheduled collection day, the customer shall provide access to the pickup point which does not jeopardize the safety of the driver or a collection vehicle or the motoring public, or create a risk to the person providing service. Access must not require the collector to pass under low-hanging obstructions such as eaves, tree branches, clothesline or electrical wires which obstruct safe passage to and from cans, containers or drop boxes. Cans must be located outside of garages and outside of locked or latched gates or other enclosures.

(D) All solid waste receptacles used by the customer shall be maintained in a safe and sanitary condition by the customer or user.

(E) Solid waste service customers shall place items not intended for pickup at least three feet from any solid waste can or container.

(F) The producer or generator of solid wastes shall clean containers supplied by the franchisee. Such persons shall keep the area around such cars, containers or drop boxes or other solid waste receptacles free of accumulated wastes. The franchisee shall supply periodic maintenance to containers or drop boxes supplied by the franchisee.

(G) Customers using containers shall provide a location so as to meet standards of the Consumer Products Safety Commission. (Ord. O-349, §17, 1984; Ord. O-441, §1(part), 1998)

12.12.180 Violations.

(A) No person shall block the access to a solid waste container or drop box.

(B) No person shall deposit material in or remove material from any drop box or container supplied by franchisee without permission of the franchisee.

(C) No unauthorized person shall take or remove any solid waste placed out for collection by the franchisee including, but not limited to recyclable material.

(D) No person shall install a stationary compactor for collection of solid wastes unless the franchisee has been notified and has the necessary equipment to handle the solid waste.

(E) No stationary compactor or other container for commercial or industrial use shall exceed the safe loading or design limits for the operation of the collection vehicles.

(F) No person shall install a stationary compacting device for handling of solid wastes unless it complies with all applicable federal and state laws and regulations.

(G) No person shall place any hazardous wastes out for collection or disposal by the franchisee nor place it into any solid waste container or drop box. (Ord. O-349, §18, 1984; Ord. O-441, §1(part), 1998)

12.12.190 Enforcement.

(A) The City may enforce the provisions of this Chapter by administrative, civil or criminal remedies or any combination as necessary to obtain compliance with this Chapter. The City Council shall take such legislative action as is necessary to support the Chapter and the franchise granted thereunder.

(B) The franchisee may also enforce payment or protect its rights by appropriate civil action.

(C) The City shall enforce the provisions of this Chapter. The City may enter the affected premises at reasonable times for the purpose of determining compliance with the provisions and terms of this Chapter. Failure on the part of the customer to cooperate and allow inspection by the City, shall relieve the franchisee from providing service. In the event of termination of service, the franchisee shall provide notice to the City. (Ord. O-349, §19, 1984; Ord. O-441, §1(part), 1998)

12.12.200 Penalties. A violation of a provision of Section 12.12.090 or Section 12.12.180 is an infraction and punishable by fine only. The procedure to be followed in the enforcement of this Chapter shall be an set forth in ORS 153.110 through 153.300. The penalty for committing an infraction shall be a fine not exceeding $500. (Ord. O-349, §20, 1984; Ord. O-441, §1(part), 1998)

12.12.210 Appeals.

(A) Any determination by a franchisee may be appealed to the City within fifteen days. Appeal must be filed with the City Recorder.

(B) Any determination by the City pursuant to this Chapter may be appealed to the Council within fifteen days. Appeal must be filed with the City Recorder. (Ord. O-349, §21, 1984; Ord. O-441, §1(part), 1998)

12.12.220 Severability. Any findings by a court of competent jurisdiction that any portion of this Chapter is unconstitutional or invalid shall not invalidate other provisions of this Chapter. (Ord. O-349, §22, 1984; Ord. O-441, §1(part), 1998)

12.12.230 Descriptive Heading. The captions to sections contained herein are intended solely to facilitate the reading thereof. Such captions shall not affect the meaning or interpretation of the test herein. (Ord. O-441, §1(part), 1998)

Sections:

12.16.010 Grant of Exclusive Franchise

12.16.020 Placement of Poles

12.16.030 Underground Utility Installation

12.16.040 City Representative May Observe Excavations

12.16.050 Restoration of Public Right-Of-Ways

12.16.060 City Work not to Obstruct Company System

12.16.070 Relocation of Pole for Public Necessity

12.16.080 Temporary Removal of Wires for Building/Machinery Moving

12.16.090 Proposed Construction Maps or Sketches

12.16.100 Temporary Removal of Wires for Fire Equipment

12.16.110 Indemnification

12.16.120 Underground Service/Installation Maps

12.16.130 Franchise Fees

12.16.140 Computation of Franchise Fee

12.16.150 Poles Available for City Signal Circuits

12.16.160 City to Pay for Telepho