Chapter 4.04 GENERAL REGULATIONS AND CONDITIONS

Every franchise granted by the City for the use of City highways for any purpose, except as otherwise provided in the ordinance granting such franchise, shall be granted upon and be subject to such of the following rules, regulations, restrictions, terms and conditions as are incorporated therein by reference, in addition to the rules, regulations, restrictions, terms and conditions set forth in the ordinance granting each such franchise. (Ord. 89-28, 1/23/90)

4.04.030 Franchise Grant Not Exclusive.

The granting of a franchise or any of the terms or conditions therein shall not be construed to prevent the City from granting any identical or similar franchise to any person other than the grantee. (Ord. 89-28, 1/23/90)

4.04.050 Application.

The application for a franchise shall be filed with the Director. (Ord. 89-28, 1/23/90)

4.04.060 Term of Franchise.

Unless the ordinance granting the franchise provides otherwise, the term of the franchise shall be 25 years. (Ord. 89-28, 1/23/90)

4.04.070 Acceptance of Franchise.

The grantee, shall within 60 days after the passage of the ordinance granting the franchise, file with the City Clerk a written acceptance of the terms and conditions of said ordinance, including such terms and conditions of this Division. (Ord. 89-28, 1/23/90)

4.04.080 Surety Bond Required When—Amount and Conditions.

The notice of sale may require that the grantee shall file, within the time specified therein, and at all times during the life of the franchise, keep on file with the Director a corporate surety bond running to the City in the sum of $1,000.00, or such other sum as may be specifically provided in the said notice of sale with surety to be approved by the Director, conditioned that the grantee shall well and truly observe, fulfill and perform each term and condition of the franchise and that in case of any breach of condition of the bond, the whole amount of the penal sum therein named shall be deemed to be liquidated damages, and shall be recoverable from the principal and sureties upon the bond. If the bond is not so filed within the time aforesaid, the award of the franchise may be set aside at any time prior to the filing thereof, and any money paid therefor shall be forfeited; and if an ordinance has been enacted granting the franchise, the Council may repeal such ordinance. In the event that said bond, after it has been so filed, shall at any time during the life of the franchise become insufficient, the grantee, by accepting the terms and conditions thereof, agrees to renew said bond with sureties to be approved by the Director within 10 days after written notice to do so from the Director. (Ord. 89-28, 1/23/90)

4.04.100 Notice of Sale—Deposit to Cover Costs.

Prior to publication of the notice of sale, the applicant for a franchise shall deposit with the City Clerk a sum which the Clerk estimates to be ample to cover the cost of such publication. (Ord. 89-28, 1/23/90)

4.04.110 Notice of Sale—Costs—Disposition of Extra Funds.

The cost of publication of the notice of sale of a franchise shall be paid from the money deposited by the applicant. If the cost of publication is less than the amount deposited the Clerk shall:

A. Refund the difference to the applicant if the franchise is not awarded to the applicant;

B. Apply the difference to other moneys due to the City from the applicant under the terms of the franchise if the franchise is awarded to the applicant. (Ord. 89-28, 1/23/90)

4.04.120 Map of Facilities Installed in Highways—Annual Filing Required.

A. The grantee, except the grantee of a franchise for a railroad track, shall file with the Director, within 90 days after the effective date of the ordinance granting the franchise, and each year thereafter within 90 days after the anniversary of the effective date of the ordinance, a map or set of maps, each drawn to a scale not smaller than 400 feet to one inch, showing in detail the exact location and size of all facilities, except service connections used by or under the control of the grantee, installed beneath the surface of the highways described in and maintained pursuant to the authority of the ordinance granting the franchise.

B. The map or set of maps filed pursuant to the provisions of this section shall show in detail the location of such facilities, excluding service connections, which shall have been laid, constructed or abandoned subsequent to the filing of the last preceding map or set of maps. Each map or set of maps shall be accompanied by an affidavit endorsed thereon and subscribed and sworn to by the grantee, verifying the correctness thereof. (Ord. 89-28, 1/23/90)

4.04.130 Public Utility Franchises—Value Agreement.

The grantee of any franchise awarded to a public utility, by accepting the terms and conditions thereof, stipulates and agrees that in any proceeding for the purpose of regulating the rates of the grantee, no greater value shall be placed upon the franchise than the actual cash paid therefor by the grantee, including the cost of advertising paid by the grantee. (Ord. 89-28, 1/23/90)

4.04.150 Payments to City—Service Connections Excluded When.

Whenever the length of any wire, pipe or conduit is a factor in calculating any payment due under any franchise granted by the City, all service connections shall be excluded in determining such length. (Ord. 89-28, 1/23/90)

4.04.160 Payments to City—Publishing and Advertising Costs.

The grantee shall pay to the City within 30 days after receiving a statement therefor, all advertising and publishing costs, including the cost of publishing the ordinance, incurred in connection with the granting of the franchise, minus the amount, if any, which the grantee has deposited. The grantee shall not receive credit for any deposit made by any other person. (Ord. 89-28, 1/23/90)

4.04.190 Report of Annual Gross Receipts—Filing Time.

A. The grantee of any franchise awarded to a public utility or a mutual water company, except a franchise for a railroad track, shall file with the Revenue Collector for each franchise payment period, within 90 days after such period, two copies of a report verified by the responsible officer of the grantee (except where the grantee is an individual, in which case the report shall be verified by the oath of the grantee) showing the total gross receipts of the grantee for the franchise payment period, received or accrued in connection with the furnishing of the commodity or service arising from the use or operation of the franchise, together with such additional data as is necessary in the discretion of the Revenue Collector to calculate or verify the calculation of the annual payment (or the pro rata thereof for the first period if the first period is less than one year) and which payment shall be paid concurrently with the filing of the statement.

B. In the event the amount paid is incorrect in the judgment of the Revenue Collector, it may order the payment of such additional sum as it may find due. (Ord. 89-28, 1/23/90)

4.04.200 Report of Annual Gross Receipts—Interest Charged On Late Payments.

Should any annual report and accompanying payment be not made within the 90-day period therein mentioned, the grantee shall further pay interest on the amount due under that section at the rate of ten (10) percent per month from the last day of the franchise payment period for which such payment was due. (Ord. 89-28, 1/23/90)

4.04.210 Right to Examine Records and Facilities.

At all reasonable times, the grantee shall permit any duly authorized representative of the City to examine all property of the grantee erected, constructed, laid, operated or maintained pursuant to the franchise, together with any appurtenant property of the grantee, and to examine and copy any and all books, accounts, papers, maps and other records kept or maintained by the grantee or under its control regarding the operations, affairs, transactions, property or financial condition of the grantee. (Ord. 89-28, 1/23/90)

4.04.220 Liability for Damages.

The grantee shall indemnify, defend and hold the City, its officers, agents, and employees harmless from and against any and all loss, damages, liability, claims, suits, costs and expenses, including reasonable attorney’s fees, defense costs and legal fees, regardless of the merit or outcome of any such claim or suit, claimed, arising from or connected with the grant, exercise or enjoyment of the franchise, the grantee’s franchise operations, and the use, operation or maintenance of the facilities erected, constructed, laid, operated or maintained under the franchise. (Ord. 89-28, 1/23/90)

4.04.230 Sale, Lease or Transfer of Franchise—Terms and Conditions.

A. The grantee shall not sell, transfer, assign or lease the franchise, or any part thereof, except with the consent of the City Council. Such sale, transfer, assignment or lease shall be made only by filing with the City Council a copy of the duly executed instrument of such sale, transfer, assignment or lease, and a written request for the consent of the Council to such sale, transfer, assignment or lease. If such duly executed instrument and such written request is not filed with the City Council before the expiration of 60 days after the effective date of such sale, transfer, assignment or lease then, upon the expiration of said 60 days, the franchise shall be subject to forfeiture and the City Council may, without notice, by ordinance, repeal the franchise.

B. As a condition to the granting of consent to such sale, transfer, assignment or lease, the Council may impose such additional terms and conditions upon the franchise and upon the grantee or assignee which the City Council may deem to be in the public interest. Such additional terms and conditions shall be expressed by ordinance.

C. Nothing herein contained shall be construed to grant to the grantee the right to sell, transfer, assign or lease the franchise, or any part thereof except in the manner aforesaid. This section applies to any assignment, whether by operation of law, by voluntary act of the grantee or otherwise. No such consent shall be required to any transfer of the franchise in trust or by way of mortgage or hypothecation with all or a part of grantee’s other property for the purpose of securing any indebtedness of grantee. A merger will not be deemed a sale, transfer, assignment or lease of the franchise under this section. (Ord. 89-28, 1/23/90)

4.04.240 Conditions of Franchise Grant—Suspension or Forfeiture Grounds and Procedure.

The franchise is granted and shall be held and enjoyed upon each and every condition contained in the ordinance granting the franchise, including such conditions incorporated by reference, and shall be strictly construed against the grantee. Any neglect, failure or refusal to comply with any of the conditions of the franchise shall constitute grounds for the suspension or forfeiture thereof. The City Council, prior to any suspension or forfeiture of the franchise, shall give to the grantee not less than 30 days’ notice in writing of any default thereunder. If the grantee does not within the noticed period begin the work of compliance, or after such beginning does not prosecute the work with due diligence to completion, the City Council may hold a hearing, at which the grantee shall have the right to appear and be heard, and thereupon the City Council may determine whether such conditions are material and essential to the franchise and whether the grantee is in default and may declare the franchise suspended or forfeited. Notice of the hearing shall be given to the grantee not less than ten days before the hearing. (Ord. 89-28, 1/23/90)

4.04.260 Extra Communication Circuits for City Use.

The City Council, in granting the franchise, does expressly reserve at no cost to the City the right and privilege of installing and maintaining communication circuits upon any poles or in any communication conduit erected or placed by virtue of the franchise. The City may use the circuits for maintaining a communication, control and fire-alarm service in the dispatch of City business; and all such poles erected or conduits laid under the authority of the franchise shall be erected and laid in such a manner as to leave sufficient space for the proper accommodation of the four circuits to be installed and maintained by the City. (Ord. 89-28, 1/23/90)

4.04.270 Franchise Area—All Facilities Subject to Franchise Conditions.

All facilities erected, constructed, laid, operated or maintained by the grantee in highways, including services connected with the grantee’s facilities, whether installed by the grantee or not, in the area described in and by virtue of the authority provided by the ordinance granting the franchise, prior to the effective date of said ordinance, except those maintained under prior right other than franchise, shall become subject to all the terms and conditions of such ordinance upon such effective date. (Ord. 89-28, 1/23/90)

4.04.280 Attachment of Facilities to Bridges or Other City Structures.

A franchise does not give the grantee the right to attach any pipe, conduit or other facility to any bridge or other City structure unless specifically provided in the Ordinance granting the franchise. (Ord. 89-28, 1/23/90)

4.04.290 Authority to Acquire Grantee’s Works, Property and Rights.

The City shall have the right at any time during the term of the franchise to acquire the works, property and rights of the grantee (if such grantee is not a public utility under the jurisdiction of the Public Utilities Commission), or any portion thereof constructed, acquired or operated under the franchise upon making reasonable compensation. (Ord. 89-28, 1/23/90)

4.04.320 Construction, Operation and Maintenance Regulations.

All facilities erected, constructed, laid, operated or maintained under the provisions of the franchise shall be erected, constructed, laid, operated or maintained in accordance with and conforming to all the ordinances, codes, rules and regulations now or hereafter adopted or prescribed by the City Council, and shall be of new, first class and standard material and subject to the approval of any duly authorized representative of the City. (Ord. 89-28, 1/23/90)

4.04.340 Excavation Permit—Prerequisite to Commencement of Work—Exceptions.

Where the provisions of the highway permit ordinance require the issuance of an excavation permit, the grantee shall not commence any excavation work under the franchise until it shall have obtained such permit, except in cases of emergency affecting public health, safety or welfare, or the preservation of life or property, in which case the grantee shall apply for such permit not later than the next business day. (Ord. 89-28, 1/23/90)

4.04.350 Excavation Permit—For Pipelines Carrying Flammable Substances—Issuance Conditions.

Prior to the issuance of any excavation permit for the construction or installation of any pipeline for the transmission of flammable liquids or gases, which are heavier than air, approval shall be obtained from the Fire Department. Such approval shall be based on the determination that no undue fire hazard will be created to life or property in the areas through which the proposed pipeline will be located. (Ord. 89-28, 1/23/90)

4.04.360 Highway Facilities—Construction and Repair Procedures.

The work of erecting, constructing, laying, replacing, repairing or removing facilities in, upon, over, under, along or across any highway shall be conducted with as little hindrance as practicable to the use of the highway for purpose of travel; and as soon as the erecting, constructing, laying, replacing, repairing or removing of any of said facilities is completed, all portions of the highway which have been excavated or otherwise injured thereby shall be placed in as good condition as the same was before erecting, constructing, laying, replacing, repairing or, removing of the facilities, to the satisfaction of the Director; and the grantee shall be responsible to the City and shall save the City, its officers, employees and agents, free and harmless from all damages or liability arising from any damage or injury suffered by any person by reason of any excavation or obstruction being improperly guarded during said work, or the failure of the grantee to properly perform, maintain or protect any phase of the work. (Ord. 89-28, 1/23/90)

4.04.370 Mains and Other Facilities—Depth of Installation.

Unless special circumstances make it impossible or not feasible and the Director so finds:

A. All mains laid under the franchise, except electrical conduits, shall be laid and maintained not less than 30 inches below the gutter grade, or 38 inches below grade if no gutter, unless the grantee files a written statement that no service connection will be made to any portion of the upper half of such main, in which case the main may be not less than 24 inches below the gutter grade or 32 inches below grade if no gutter.

B. All other facilities, including electrical conduits and service connections laid under the franchise, shall be laid and maintained not less than 24 inches below the gutter grade. (Ord. 89-28, 1/23/90)

4.04.380 Improvement of Highway Surface—Notice to Grantee—Time for Installation of Facilities.

A. The City reserves the right to improve the surface or subgrade of any highway and construct or reconstruct any other facilities over which the franchise is granted, upon written notice that the grantor intends to improve any such highway within the territory covered by the franchise, and requests that the grantee erect, install, lay or construct beneath the surface of the highway the facilities which at that time are known or believed by the grantee to be necessary or convenient to serve its needs and those of the public in the foreseeable future; the grantee shall commence such work on or before the date specified in such written notice and request, which date shall be not less than 30 days from receipt of such written notice and request, and diligently prosecute such work to completion.

B. After the completion of such highway improvements by the grantor, the right of the grantee to lay or construct facilities in, under or through the improved surface of the highway or portion of the highway under the franchise shall be subject to such additional terms and conditions as the Director may impose to minimize any damage to such improved surface. (Ord. 89-28, 1/23/90)

4.04.390 Maintenance and Protection of Facilities Following Other Improvements.

A. If the City constructs or maintains any storm drain, sewer structure or other facility or improvement under or across any facility of the grantee, the grantee shall provide, at no expense to the City, such support as shall be reasonably required to support, maintain and protect grantee’s facility.

B. This section shall not relieve any contractor of liability arising from violation of any law, ordinance or regulation, or from negligence which may proximately cause injuries to any of grantee’s facilities. (Ord. 89-28, 1/23/90)

4.04.400 Defective Facilities in Highways—Repair Requirements and Costs.

If any portion of any highway shall be damaged by reason of defective facilities laid or constructed under the franchise, the grantee shall, at its own expense, repair any such defect and put such highway in as good condition as it was before such damage was incurred, to the satisfaction of the Director. If the grantee, within 10 days after receipt of written notice from the Director instructing it to repair such damage, fails to commence to comply with such instructions, or, thereafter, fails diligently to prosecute such work to completion, then the Director immediately may do whatever work is necessary to carry out the repair at the cost and expense of the grantee, which cost and expense, by the acceptance of the franchise, the grantee agrees to pay upon demand. If such damage constitutes an immediate danger to public health or safety requiring the immediate repair thereof, the Director, without notice, may repair such damage and the grantee agrees to pay the reasonable costs thereof upon demand. (Ord. 89-28, 1/23/90)

4.04.410 City’s Right to Change Highway.

The City reserves the right to change the grade, to change the width, or to alter or change the location of any highway over which the franchise is granted. (Ord. 89-28, 1/23/90)

4.04.420 Relocation of Facilities.

If any of the facilities erected, constructed, installed or maintained by the grantee pursuant to the franchise on, along, upon, over, in, under or across any highway are located in a manner which prevents or interferes with the change of grade, traffic needs, operation, maintenance, improvement, repair, construction, reconstruction, widening, alteration or relocation of the highway, the grantee shall relocate permanently or temporarily any such facility at no expense to the City upon receipt of a written request from the Director to do so, and shall commence such work on or before the date specified in such written request, which date shall be not less than 30 days from receipt of such written request, and thereafter diligently prosecute such work to completion. (Ord. 89-28, 1/23/90)

4.04.440 Relocation of Facilities—Conditions.

The City reserves the right to lay, construct, repair, alter, relocate and maintain subsurface or other facilities or improvements of any type or description in a governmental but not proprietary capacity within the highways over which the franchise is granted. If the City finds that the location or relocation of such facilities or improvements conflicts with the facilities laid, constructed or maintained under the franchise, whether such facilities were laid before or after the facilities of the City were laid, the grantee of such franchise shall, at no expense to the City, on or before the date specified in a written request from the Director, which date shall be not less than 30 days after the receipt of such notice and request to do so, commence work to change the location, either permanently or temporarily, of all facilities so conflicting with such improvements to a permanent or temporary location in said highways to be approved by the Director, and thereafter diligently prosecute such work to completion. (Ord. 89-28, 1/23/90)

4.04.450 Relocation of Facilities—Costs.

A. If the grantee, after reasonable notice, fails or refuses to relocate permanently or temporarily its facilities located in, on, upon, along, under, over, across or above any highway, or to pave, surface, grade, repave, resurface or regrade as required pursuant to any provision of the franchise, the City may cause the work to be done, and shall keep an itemized account of the entire cost, and the grantee shall hold harmless the City, its officers, employees and agents from any liability which may arise or be claimed to arise from the moving, cutting or alteration of any of the grantee’s facilities, or the turning on or off of water, oil or other liquid, gas or electricity.

B. The grantee agrees to, and shall, reimburse the City for such cost within 30 days after presentation to the said grantee of an itemized account. (Ord. 89-28, 1/23/90)

4.04.470 Abandoning Facilities—Terms and Conditions.

The Director, upon any terms and conditions as the Director may see fit to impose, may give the grantee of the franchise permission to abandon, without removing, any facility laid, erected, constructed, operated or maintained under the franchise. Unless such permission is granted, the grantee shall remove all abandoned facilities within 90 days after such abandonment, and shall restore the highway to its former state at the time such facilities were removed, as near as may be, so as not to impair its usefulness. (Ord. 89-28, 1/23/90)

4.04.480 Undergrounding of Facilities.

To the extent possible, the City shall require that all facilities which may be installed underground be so installed and in accordance with the provisions of this Title. (Ord. 89-28, 1/23/90)