It is the purpose and intent of the city council in enacting
this chapter to protect the public's welfare in the city's capacity
as caretaker of the public rights-of-way and to establish nondiscriminatory
procedures for the granting of franchises to use and occupy the public
rights-of-way. The requirement for franchise agreements shall enhance
the safety and ongoing maintenance of the city's rights-of-way while
ensuring a uniform procedure that provides equal treatment for all
potential users of the rights-of-way. The city has the authority to
manage public property through its police power and other statutory
and constitutional powers granted to municipalities. The authority
and procedures contained herein are intended to preserve the city's
responsibility to control and protect the public rights-of-way from
uses that are inconsistent with the best interest of the public and
to maintain its ability to demand a fair rate of compensation for
such use, while establishing procedures to treat applicants fairly
in the interest of due process.
(Ord. 1038-10 § 1)
shall mean the city's city manager or designee.
means a non-public, for profit, entity or use.
means a franchise for a term of years which grants privileges
available to one and only one franchisee within the city's boundaries
to provide services as described in the franchise agreement for the
duration of the franchise.
means and includes any authorization granted hereunder in
terms of franchise, privilege, or otherwise to erect, construct, install,
operate, or maintain a facility for commercial purposes by occupying
the public right-of-way within a specified area in the city. Any such
authorization shall not mean or include any license or permit required
for the privilege of transacting and carrying on a business within
the city generally as required by other ordinances and laws of this
city.
means an agreement entered into by the city at its option
with the franchisee which sets forth the terms and conditions of the
grant of franchise.
means the person, firm, or corporation granted a franchise
by the city council under this chapter, and the lawful successor,
transferee, or assignee of such entity.
means a franchise which grants privileges available to multiple
simultaneous franchisees within the city's boundaries to provide the
services described in the franchise agreement.
means any public highway, public street, public way, or public
place in the city, either owned by the city or dedicated to the public
for public purposes.
(Ord. 1038-10 § 1)
The city council shall have the authority, in conjunction with
any applicable state or federal law provisions, to grant a franchise,
whether exclusive or nonexclusive, to erect, construct, install, operate,
or maintain any structure or equipment for commercial provision of
utilities by occupying the public right-of-way as approved by the
city council and subject to the terms and conditions of this chapter
and any franchise agreement executed between the city and the franchisee.
Further, the city shall have the authority to require reasonable compensation
as determined by the city council in the form of a franchise fee for
the privilege granted by any franchise in accordance with this chapter.
(Ord. 1038-10 § 1)
A.
Following
the effective date of the ordinance codified in this chapter, no person
shall erect, install, or construct any permanent structure or equipment
related to provision of utilities, including both tank and distribution
lines, cables, pipes and other related facilities, for commercial
purposes on, above, or below the public right-of-way unless the person
has first obtained a franchise for such use granted by the city council
under such terms and restrictions as are set forth herein.
B.
No
person shall operate or maintain any permanent structure or equipment
related to the provision of utilities for commercial use which is
erected, installed, or constructed on, above, or below the public
right-of-way following the effective date of the ordinance codified
in this chapter unless the person has first obtained a franchise for
such use pursuant to the provisions of this chapter or has obtained
some other specific grant of authority from the city for the use of
the public right-of-way.
D.
This
chapter shall not apply to cable television providers or telephone
companies.
(Ord. 1038-10 § 1)
Franchisee shall be subject to all provisions of the franchise agreement and all applicable municipal, state, and federal laws and regulations as well as the regulations of any other public agency having jurisdiction over territory located within the city. The grant of a franchise shall not relieve the franchisee of any obligation under this code to obtain any building or construction permits, right-of-way permits, public works permits, excavation permits, use permits, or any other specific authorization that may be required for the proposed project. Unless the franchise agreement adopted by the city council provides otherwise, a franchise does not grant a right to construct or install physical improvements at specified locations, until such time as said locations shall be determined and approved pursuant to Chapters 12.04 and 12.08 or other applicable planning or engineering processes and permits.
(Ord. 1038-10 § 1)
A nonexclusive franchise shall be considered and granted according
to the following procedures:
A.
Each
applicant for a franchise, or a transfer of a franchise, shall submit
the following to the city:
1.
A
written "Request and Application for Franchise" to the city manager;
and
2.
A
proposal identifying the requested use of the public right-of-way,
proposed locations of right-of-way occupation, descriptions of proposed
physical improvements if they are to be constructed above ground,
the method of construction, time of construction, hours of operation,
resources and procedures for maintenance, the amount and method of
compensation in the form of franchise fees to the city, and the initial
term of the proposed franchise and any renewal, if applicable; and
3.
All
applicable application processing fees required by ordinance or resolution
of the city council; and
4.
Any
other information required by the city manager.
B.
In
consultation with the city attorney and applicable city departments,
the city manager shall negotiate proposed terms and conditions in
the interest of the city for a draft franchise agreement between the
applicant and the city.
C.
The
city council shall hold a public hearing to consider a resolution
accepting the franchise agreement and granting the franchise accordingly.
At least ten days prior to the hearing, the city shall publish notice
of the public hearing and its intent to grant a franchise and shall
post said notice in at least three places throughout the city.
D.
The
city council may approve or modify and accept the franchise agreement
and grant the franchise by resolution, deny the application for franchise,
or continue the decision to grant the franchise and return the franchise
agreement with direction for further negotiation between city staff
and the applicant.
(Ord. 1038-10 § 1)
An exclusive franchise shall be considered and granted according
to the following procedures:
A.
Each
applicant for an exclusive franchise or the transfer of an exclusive
franchise shall submit the following to the city:
1.
A
written "Request and Application for Exclusive Franchise" to the city
manager as prescribed by the city manager; and
2.
A
proposal identifying the requested use of the public right-of-way,
proposed locations of right-of-way occupation, descriptions of proposed
physical improvements if they are to be constructed on, above, or
below ground, the method of construction, time of construction, hours
of operation, resources and procedures for maintenance, the amount
and method of compensation in the form of franchise fees to the city,
and the initial term of the proposed exclusive franchise and any requested
consideration of renewal, if applicable; and
3.
All
applicable application processing fees required by ordinance or resolution
of the city council; and
4.
Any
other information required by the city manager.
B.
The
city council may receive the application and consider a "Resolution
of Intention to Consider an Exclusive Franchise and Call for Proposals"
which recites the terms under which the city intends to grant the
exclusive franchise.
C.
If
said resolution is adopted by the city council, the city shall publish
within ten days after adoption of the resolution a "Notice of Intention
to Consider an Exclusive Franchise and Call for Proposals" and post
said notice in at least three places throughout the city. The notice
shall invite competing proposals to be submitted to the city manager
within sixty days of the date the "Resolution of Intention to Consider
an Exclusive Franchise and Call for Proposals" was adopted. The city
manager or designee may also send notice to any other persons known
to be interested in submitting a proposal.
D.
The
city manager shall consider all proposals and submit one or more of
the proposals to the city council for final selection. The city council
may select one proposal and direct the city manager or designee to
negotiate a draft exclusive franchise agreement between the city and
the party submitting the selected proposal. The city manager may negotiate
the draft exclusive franchise agreement in accordance with the terms
of the proposal, the provisions of this chapter, and the best interests
of the city. If the city council rejects all proposals submitted by
the city manager, the process provided for in this chapter is concluded.
E.
The
city council shall hold a public hearing to consider a resolution
accepting the exclusive franchise agreement and granting the exclusive
franchise accordingly. At least ten days prior to the hearing, the
city shall publish a notice of public hearing and intent to grant
an exclusive franchise and post said notice in at least three places
throughout the city. The notice shall state the date, time, and location
of the public hearing for protests and public comments to be heard.
F.
The
city council may approve or modify and accept the exclusive franchise
agreement and grant the exclusive franchise by resolution, deny the
application for exclusive franchise, or continue the decision to grant
the exclusive franchise and return the exclusive franchise agreement
with direction for further negotiation of terms and conditions between
city staff and the proposed franchisee, subject to acceptance by the
city council.
(Ord. 1038-10 § 1)
Franchisee shall be subject to all other conditions, restrictions,
and specifications outlined in the franchise agreement negotiated
between city and franchisee as adopted and approved by resolution
of the city council. Further, city reserves the power to adopt and
enforce additional requirements and regulations as are necessary and
convenient in the exercise of its jurisdiction under this chapter
and may determine any question of fact which may arise during the
existence of any franchise granted hereunder. In the event of any
inconsistency between the franchise agreement or the requirements
of this chapter and state or federal law, the provisions of state
or federal law shall control.
(Ord. 1038-10 § 1)
The city council may waive any procedural requirement imposed
under this chapter when the city council determines that, it is impossible,
impractical or not feasible to comply with the procedural requirements
and the public health, safety or welfare would be jeopardized by requiring
full compliance.
(Ord. 1038-10 § 1)
Franchisee shall not assign or otherwise transfer a franchise
granted by the city council pursuant to this chapter without the express
prior written consent of the city council. The consent by the city
council shall not be unreasonably withheld. The determination shall
include a review of whether the proposed transferee has the financial
ability, technical expertise and experience to carry out the obligations
of the franchisee. The review for approval shall also include a determination
that the franchisee is not in breach of the franchise agreement.
(Ord. 1038-10 § 1)
Franchisee shall agree to indemnify, defend and hold harmless
the city pursuant to a specific indemnity provision in its franchise
agreement.
(Ord. 1038-10 § 1)
Franchise agreements shall generally be granted for a period
of no more than fifteen years unless otherwise required by state or
federal law. Franchises can be granted for longer periods when the
city council makes specific findings in the ordinance or resolution
granting the franchise that the longer term is needed to amortize
the franchisee's investment or for other reason which promotes the
public health, safety or welfare.
(Ord. 1038-10 § 1)
In the event the city should acquire the physical assets of
the system under the franchise or any portion thereof through voluntary
acquisition or through the use of its power of eminent domain, the
city shall pay for the fair market value of the facilities and property
acquired, and the franchise agreement shall be deemed automatically
terminated, but the city shall not pay any additional amount for the
value of the franchise itself.
(Ord. 1038-10 § 1)
Within nine days following the granting of any franchise, the
franchisee shall file with the city's public works director a written
safety plan including provisions: (1) identifying the location of
all facilities, (2) discussing how the facilities might be damaged
and the consequences to public health and safety, (3) any emergency
response procedures, (4) providing for notice to appropriate agencies
of the plan, response procedures and method of notification, (5) traffic
control measures, (6) compliance and procedures with all other state
and federal laws, and other procedures as required by the public works
director. The franchisee shall submit the plan to the public works
director for review and comment on the plan as well as any applicable
state or federal agencies of appropriate jurisdiction. The franchisee
shall make all necessary revisions to the safety plan, and thereafter
periodically, and, at least once per year, update the plan.
(Ord. 1038-10 § 1)
In granting any franchise, the city council shall determine
the amount of financial security which shall be posted to secure franchisee's
obligations under the franchise. The financial security shall be such
amount as will cover the cost of franchisee fulfilling its obligations
hereunder, and may be utilized if franchisee fails to perform as required
hereunder or fails to reimburse the city in the event city has to
remedy any breaches by franchisee. The security may be a bond, letter
of credit, cash deposit, deed of trust or other form approved by the
city attorney. The security shall be drawn on a responsible institution
and, if drawn upon, shall be promptly replenished in an amount to
be determined by the city manager.
(Ord. 1038-10 § 1)
After the granting of the franchise by the city council, the
applicant shall have sixty days to file all certificates of insurance,
post all bonds, comply with all other conditions set by the city council
and file franchisee's certificate of acceptance. The execution of
the certificate of acceptance and filing of the same with the city
clerk shall be franchisee's acknowledgment that all conditions of
the franchise are acceptable and shall constitute a waiver of all
claims by franchisee, and thereafter franchisee shall be estopped
from challenging such approval or the terms thereof. In the event
franchisee fails to timely file such acceptance, the franchise and
the city council's approval thereof shall be null and void.
(Ord. 1038-10 § 1)
Any person or entity utilizing city right-of-way as a commercial
enterprise which has not entered into a franchise agreement with the
city which would be required as a new use to obtain a franchise hereunder,
but which use existed prior to the adoption of the ordinance codified
in this chapter, is hereby declared to be a nonconforming use. Within
thirty days of the effective date of the ordinance codified in this
chapter, the public works director shall give all persons known to
be subject to this chapter written notice of the provisions hereof.
Whether or not they receive such notice, within sixty days of the
effective date of the ordinance codified in this chapter, all persons
subject to this chapter shall give the public works director written
notice of their intent to seek a franchise or discontinue and remove
such facilities. A decision to remove any active lines shall require
a removal plan to ensure uninterrupted service to the utility user.
Any such nonconforming use shall have a period of six months from
the effective date of the ordinance codified in this chapter to negotiate
and enter into a franchise agreement pursuant to this section unless
the city council agrees to an extension based on evidence that negotiations
are progressing in good faith. Any such existing use is subject to
an immediate back payment of franchise fees pursuant to Public Utilities
Code Section 6205.1, and shall be responsible for payment for up to
four years prior to the effective date of the ordinance codified in
this chapter and into the future unless it determines to discontinue
operation.
(Ord. 1038-10 § 1)
A.
In
the event that the use of the franchise system is discontinued for
any reason for a period of twelve consecutive months, or in the event
such franchise system or property has been installed in any street
or public place without complying with the requirements of the franchise
or this chapter, or the franchise has been terminated, canceled or
has expired, the franchisee shall within thirty days upon being given
written notice from the public works director, provide a removal plan
to the public works director describing the method and procedure to
cause the removal from the streets or public places of all such property
and equipment of such franchise system unless the public works director
permits such to be abandoned in place. Within thirty days of the removal
plan approval, franchisee shall commence removal in accordance with
the plan.
B.
After
removal, the franchisee shall promptly restore the street or other
area from which such property has been removed to conditions satisfactory
to the public works director.
C.
Failure of the franchisee to submit a removal plan, as provided in subsection A of this section within the thirty days, or failure to complete removal in accordance with the plan, shall result in the city making a determination as to whether to cause the removal or leave the property or equipment abandoned in place. Any removal or legal costs or fees incurred by city pursuant to this section shall be repaid by franchisee.
D.
The
removal or abandonment of any property or equipment shall not release
the franchisee from any warranty and indemnity provisions in the franchise,
including, but not limited to, the hazardous waste indemnity, which
shall survive the termination of the franchise agreement unless otherwise
provided by the franchise agreement.
(Ord. 1038-10 § 1)
The franchisee shall from time to time protect, support, dislocate,
temporarily or permanently, as may be required, remove or relocate,
without expense to the city or any other governmental entity, any
facilities installed, used, and maintained under the franchise, if
and when made necessary by any lawful change of grade, alignment,
or width of any public street including the construction of any subway
or viaduct, by the city or any other governmental entity or made necessary
by any other public improvement or alteration in, under, on, upon
or about any public street or other public property, whether such
public improvement or alteration is at the instance of the city or
another governmental or propriety function, or made necessary by traffic
conditions, public safety, street vacation or any other public project
or purpose of the city or any other governmental entity.
(Ord. 1038-10 § 1)
The city council reserves the right to revoke any franchise
granted pursuant to this chapter, and all rights and privileges pertaining
thereto, in the event that the franchisee violates any material provision
of the franchise agreement, this chapter, or any other material provision
of this code or other law subject to enforcement by the city. Upon
suspicion of such a violation, the city manager shall provide written
notice to the franchisee with a time for curing the violation. Failure
to cure within the specified time shall result in a hearing before
the city manager. If the city manager believes a violation is occurring
and not cured in a timely fashion, he or she may schedule a hearing
before the city council to consider revocation of the franchise and
notify franchisee thereof by certified and regular first class mail
at least thirty days prior to said hearing. Franchisee may present
evidence rebutting the violation or evidence showing an effort to
correct the violation and mitigate its effects. Following the hearing,
the city council may revoke the franchise, continue the franchise,
or continue the franchise subject to additional conditions, at its
discretion. The right to revoke any franchise granted pursuant to
this chapter is in addition to, and not in lieu of, any other remedies
available to the city.
(Ord. 1038-10 § 1)
