Avenal Municipal Code Ch. 10 Franchise Fees (CA)

Sections:

3-10.01 Regulation of franchise.
3-10.02 Franchise required.
3-10.03 Matters subject to franchise.
3-10.04 Franchises—Authority of the City Council.
3-10.05 Franchise terms.
3-10.06 Franchise consideration.
3-10.07 Franchise application.
3-10.08 Application fee.
3-10.09 Franchise—Call for bids discretionary.
3-10.10 Application—Referral.
3-10.11 Franchise—Notice of hearing.
3-10.12 Hearing.
3-10.13 Franchise bond.
3-10.14 Transportation franchise.
3-10.15 Acceptance of franchise.
3-10.16 Grant in lieu of all other franchises.
3-10.17 Franchise—Obligation of grantee.
3-10.18 Franchise payments.
3-10.19 Property subject to franchise.
3-10.20 City property.
3-10.21 Right to abandon property.
3-10.22 Purchase by City.
Title 3 FINANCE
Avenal, California, Code of Ordinances
Page 40
3-10.23 Remedies of the City.
3-10.24 Penalty for exercising rights without franchise.
3-10.25 Franchise assignment.
3-10.26 Reservations of rights.
3-10.27 Relocation of facilities.
3-10.28 Failure to relocate.
3-10.29 Special permits.
3-10.30 Application for special permit.
3-10.31 Special permits—Granting.
3-10.32 Special permits—Bond. 3-10.01 Regulation of franchise. Every franchise hereafter granted by the City of Avenal for the use of the City streets for any purpose, except as otherwise provided in the ordinance granting such franchise, shall be granted upon and be subject to the following rules, regulations, restrictions, terms and conditions, which are hereby deemed incorporated into each such ordinance, in addition to the rules, regulations, restrictions, terms and conditions set forth in the ordinance granting each such franchise. (Ord. 96-04 § 1 (part), 1996) 3-10.02 Franchise required. No person, firm or corporation shall exercise any franchise, permit or privilege mentioned herein, except insofar as he, she or it may be entitled to do so by direct authority of the Constitution of the State of California or the Constitution or laws of the United States, in, upon, over, under or along any public place in the City of Avenal, or within the City limits of the City of Avenal, unless he, she or it shall have obtained a grant therefor in accordance with the provisions hereof and any applicable provisions of the Municipal Code of the City of Avenal. Nothing herein contained shall be construed to invalidate any lawful franchise heretofore granted, nor to necessitate the obtaining of a new franchise for a use for which a franchise holder shall have a valid, unexpired franchise. (Ord. 96-04 § 1 (part), 1996) 3-10.03 Matters subject to franchise. Except insofar as he, she or it may be entitled to do so by direct authority of the Constitution of California or the Constitution or laws of the United States, no person, firm or corporation shall exercise any privilege enumerated in this section unless he, she or it shall have been granted an appropriate franchise therefor by the City of Avenal, namely: (a) Collect, transport or dispose of solid waste or recyclables along, upon, over, under, in, across or along any public place in the City of Avenal, or within the City limits of the City of Avenal; (b) Construct, maintain or operate a street, interurban, underground or elevated steam or commercial railroad, or other system for transporting or conveying passengers or freight (including any appurtenances which are a part of the system), over a fixed route, along, upon,

Title 3 FINANCE Avenal, California, Code of Ordinances Page 41 over, in, under or across any public place in the City of Avenal, or within the City limits of the City of Avenal; (c) Construct, maintain or operate pipes, tubes or conduits along, upon, over, in, under or across any public place in the City of Avenal, or within the City limits of the City of Avenal, for the purpose of transmitting or distributing water, gas, steam, oil, air or other substance or utility; (d) Erect, construct, lay, maintain or operate poles, pipes, conduits, wires, cables or appurtenances upon, over, under, in, across or along any public place in the City of Avenal, or within the City limits of the City of Avenal, for the purpose of transmitting or distributing power, heat, electricity or electric energy, or for a communication by telephone, telegraph or other system; or (e) Construct, maintain or operate any other plants or system necessary or convenient for furnishing the City and its inhabitants with solid waste disposal, recycling, transportation, communication, water, light, power or other public utility services. The term "public place" as used herein shall be deemed to include any street, lane, alley, court or other public place in the City. The term "City limits" as used herein means the incorporated area of the City of Avenal, as it now or may hereafter exist. Nothing in this section shall be construed as applying to spur or side tracks, nor to require motor, contract or other carriers of freight or passengers not operating over a fixed route to obtain franchises for use of any public place in the City. (Ord. 96-04 § 1 (part), 1996) 3-10.04 Franchises—Authority of the City Council. Pursuant to its constitutional and statutory authority, the City Council may grant franchises and privileges for all of the purposes enumerated herein to persons, firms and corporations, whether operating under any existing franchise or not, upon such terms and conditions as are in the applicable provisions of the Avenal Municipal Code and any ordinances adopted pursuant thereto, and may in such franchises impose such other and additional terms and conditions not in conflict with the Municipal Code, whether governmental or contractual in character, as in the judgment of the City Council are in the public interest. (Ord. 96-04 § 1 (part), 1996) 3-10.05 Franchise terms. Franchises may be granted for either a fixed or an indeterminate period. An indeterminate franchise shall provide that it shall endure in full force and effect until the same, with the consent of the appropriate state or federal agency, shall be voluntarily surrendered or abandoned by its possessor, or until the State of California, or some municipal or public corporation, duly authorized by law, shall purchase by voluntary agreement or shall condemn and take, under the power of eminent domain, the property actually used and useful in the exercise of such franchise and situate within the City limits of the City of Avenal or until the franchise shall be forfeited for noncompliance with its terms by the possessor thereof, or until it is terminated in any other manner that may be specified in the franchise grant. (Ord. 96-04 § 1 (part), 1996) 3-10.06 Franchise consideration. No franchise shall be granted without reserving to the City adequate consideration for the privilege conferred. As part of the consideration for the granting of each franchise, the grantee shall agree to pay the purchase price, if any, for such franchise as set forth in the ordinance granting the franchise, and to make the franchise payment, if any such payment shall have been fixed by the City Council, and the

Title 3 FINANCE Avenal, California, Code of Ordinances Page 42 grantee shall also agree to perform all covenants and agreements set out in the ordinance granting the franchise. The City Council shall have the right, but shall not be obligated, to recognize that extensions of services, betterment of services, surrendering of existing franchises or parts thereof, settling litigation between the grantee and the City, or the performance by grantee of franchise obligations, may be consideration (other than the franchise payment) of benefit to the City and its inhabitants. In determining the amount of adequate consideration for the franchise or the amount of the franchise payment, if any, to be paid by a grantee, the City Council shall have the right, but not the obligation, to give weight to such factors as are enumerated in this section. (Ord. 96-04 § 1 (part), 1996) 3-10.07 Franchise application. An applicant for any franchise above mentioned shall file with the City Council a verified application which shall state: (a) The name of the applicant; (b) The purpose and term, whether definite or indeterminate, for which the franchise is desired; (c) The amounts and/or percentages, if any, applicant, if granted the franchise, proposes to pay to the City during the life of such franchise; (d) Any limitations as to time, place or type of services proposed by applicant; and (e) Any other terms or conditions that applicant may desire, including surrender of existing franchises, or parts thereof, or claims to such franchises, or proposals to settle any litigation or controversies between applicant and the City. Unless the franchise is to cover all of the incorporated territory of the City, the application shall be accompanied by six (6) copies of a map, drawn to scale, showing the location boundaries of the area to be described in the franchise. Franchise applications shall set forth such other information as the City Council may require. (Ord. 96-04 § 1 (part), 1996) 3-10.08 Application fee. Every application for a franchise, permit or privilege shall be accompanied by a cash deposit of not less than five hundred dollars ($500.00), or by a certified check for such amount, payable to the City, as a fund out of which to pay all expenses connected with such application, including, but not limited to, all advertising and publishing costs. The deposit of the applicant shall be retained until the acceptance of the franchise and the filing of any bond or other security required, or until the City Council determines not to grant the franchise. Thereupon, the remainder, if any, of the five hundred dollars ($500.00) after the payment therefrom of all such expenses incurred by the City shall be returned to the applicant. (Ord. 96-04 § 1 (part), 1996) 3-10.09 Franchise—Call for bids discretionary. The City Council may grant a franchise without calling for bids or may, in its discretion, advertise for bids for the sale of a franchise after notice inviting bids therefor, upon a basis not in conflict with the provisions of the Avenal Municipal Code, to be set out in advertisements for bids and notice of sale, provided that no bidding shall be had or required upon any renewal of a franchise, surrender of existing franchise or parts thereof, or in settlement of litigation between the grantee and the City.

Title 3 FINANCE Avenal, California, Code of Ordinances Page 43 (Ord. 96-04 § 1 (part), 1996) 3-10.10 Application—Referral. Every application made to the City Council for a franchise, privilege or permit mentioned herein shall, before any action is taken thereon, be referred by the City Council to the City Manager and City Attorney for their respective recommendations. Before making his or her recommendation to the City Council, the City Manager shall obtain the recommendations of the Director of Public Works, the Planning Director and the City Engineer. (Ord. 96-04 § 1 (part), 1996) 3-10.11 Franchise—Notice of hearing. Upon receipt of the City Manager's recommendation, the City Council may pass a resolution declaring its intention to consider the franchise application, stating the character of the same, setting forth a notice of the day, hour and place when and where any and all persons having any objection to the granting thereof may appear before the City Council and be heard thereon, and directing the City Clerk to publish said notice at least once within fifteen (15) days after the passage of said resolution. The time fixed for such hearing shall be not less than twenty (20) nor more than sixty (60) days after the date of the passage of said resolution. Such notice shall state: (a) the name of the applicant; (b) the character of the franchise; (c) its terms, whether definite or indeterminate; (d) the amounts and/or percentages, if any, grantee shall pay to the City during the life of such franchise; (e) any limitations as to time, place or type of services proposed; (f) the amount and character of any bond or other security required; and (g) an outline of any other major provisions of the proposed franchise. (Ord. 96-04 § 1 (part), 1996) 3-10.12 Hearing. At any time not later than the hour set for the hearing of objections, any person interested may file a written protest stating objections against the granting of such franchise. Such protest must be signed by the protestant and be delivered to the City Clerk. At the time set for hearing objections, the City Council shall proceed to hear and pass upon all protests so made and its decision shall be final and conclusive. The City Council may adjourn said hearing from time to time. If no protest in writing shall have been delivered to the Clerk up to the hour set for hearing, or such protests as shall have been filed shall have been heard and determined by the City Council to be insufficient, or shall have been overruled or denied, the City Council may grant such franchise. Such franchise shall be granted by ordinance adopted in the manner prescribed by law. (Ord. 96-04 § 1 (part), 1996) 3-10.13 Franchise bond. The City Council may require the grantee of any franchise to provide such bond or other security as it deems the public interest requires. (Ord. 96-04 § 1 (part), 1996)

Title 3 FINANCE Avenal, California, Code of Ordinances Page 44 3-10.14 Transportation franchise. Every franchise granted a transportation company shall specify the area in which the grantee shall operate, the public places or routes to be followed by the tracks or vehicles of the grantee; which area, public places and routes shall be subject to the lawful orders of the Public Utilities Commission of the State of California. (Ord. 96-04 § 1 (part), 1996) 3-10.15 Acceptance of franchise. The grantee of any franchise granted hereunder shall within ten (10) days after the franchise is granted, file with the City Clerk a written acceptance of the terms and conditions thereof and any bond or other security required by the City Council. By its acceptance of any franchise, the grantee shall covenant and agree to perform and be bound by all of the terms and conditions imposed by the Avenal Municipal Code, this chapter and the franchise. (Ord. 96-04 § 1 (part), 1996) 3-10.16 Grant in lieu of all other franchises. Any franchise granted by the City with respect to a particular utility service shall be in lieu of all other franchises, rights, or privileges then owned by the grantee for the furnishing of that particular utility or service within the City limits, and by acceptance of any franchise hereunder the grantee shall be deemed to have waived and abandoned all other franchises, rights and privileges then owned by the grantee for the furnishing of that particular utility or service within the City limits. The provisions of this section shall not apply to any franchise, right or privilege obtained by direct authority of the Constitution of the State of California or of the United States. (Ord. 96-04 § 1 (part), 1996) 3-10.17 Franchise—Obligation of grantee. The grantee of any franchise granted pursuant to this ordinance shall: (a) Construct, install and maintain all tracks, pipes, tubes, conduits, poles, wires, instrumentalities and appurtenances in accordance and in conformity with all of the lawful ordinances, rules and regulations theretofore or thereafter adopted by the City of Avenal in the exercise of its police powers and, as to state highways, subject to the provisions of general laws relating to the location and maintenance of such facilities therein, and with as little hindrance as practicable to the use of the streets for purpose of travel; (b) Upon completion of the construction, installation or maintenance of such tracks, pipes, tubes, conduits, poles, wires, instrumentalities and appurtenances, place all portions of the streets which have been excavated or otherwise injured thereby in as good condition as before the work of construction, installation or maintenance to the satisfaction of the Public Works Director; (c) Pay to the City on demand the cost of all repairs to public property made necessary by any operations of the grantee under such franchise; (d) Indemnify and hold harmless the City and its officers, agents, employees and volunteers from any and all liability for damages proximately resulting from any operations under such franchise; (e) Make such reports as the City or the franchise may specify;

Title 3 FINANCE Avenal, California, Code of Ordinances Page 45 (f) At all reasonable times, permit any duly authorized representative of the City to examine and transcribe any and all books, accounts, papers, maps and other records kept or maintained by the grantee or under its control as the City deems material to the determination of the performance of the franchise obligations and as the franchise may require; and (g) At all reasonable times, permit any duly authorized representative of the City to examine any and all property of the grantee erected, constructed, laid, operated or maintained pursuant to the franchise, together with any appurtenant property of the grantee. (Ord. 96-04 § 1 (part), 1996) 3-10.18 Franchise payments. Franchise payments shall be due and payable monthly within ten (10) days following the first day of each month after the granting of the franchise. In the event a franchise payment is not made within ten (10) days following the first day of each month, the grantee shall further pay interest on the amount due at the rate of one percent per month. (Ord. 96-04 § 1 (part), 1996) 3-10.19 Property subject to franchise. 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 such 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. 96-04 § 1 (part), 1996) 3-10.20 City property. A franchise does not give the grantee the right to attach any pipe, conduit or other facility to any bridge or other City structure. Such attachments shall be made only in accordance with the provisions of the ordinances and regulations of the City, as they now exist or are hereafter amended or superseded. (Ord. 96-04 § 1 (part), 1996) 3-10.21 Right to abandon property. The Public Works Director, upon such terms and conditions as he or she 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. The length of any such facility abandoned with such permission shall not be considered in calculating payments due under the franchise except for the time prior to the effective date of such permission. Nothing contained in the franchise shall be construed to permit the grantee any right to omit from its annual reports, if such reports are required, and from the calculation of franchise payments the length of any abandoned facility of grantee except in the manner aforesaid. Unless such permission is granted, the grantee shall remove all abandoned facilities within ninety (90) days after such abandonment and shall restore the street to its former state at the time such facilities were removed, as near as may be, so as not to impair its usefulness. (Ord. 96-04 § 1 (part), 1996)

Title 3 FINANCE Avenal, California, Code of Ordinances Page 46 3-10.22 Purchase by City. Every franchise shall reserve to the City the right to purchase the property of grantee either at an agreed price or a price to be determined in a manner to be prescribed in the grant, to the extent that such purchase may be authorized or permitted by law. (Ord. 96-04 § 1 (part), 1996) 3-10.23 Remedies of the City. If any person, firm or corporation shall exercise a right or privilege for which he, she or it is required by the Avenal Municipal Code to obtain a franchise without having first obtained such franchise from the City, the City may establish by ordinance the reasonable amount or percentage that such person, firm or corporation shall pay to the City for the exercise of such right or privilege within the City for which a franchise is required, and if such person, firm or corporation shall thereafter fail to pay to the City on demand such amount or percentage which has been so established by ordinance, the City shall have the right to enforce the payment thereof from such person, firm or corporation. If the grantee of any franchise shall fail or refuse to comply with any of the provisions or conditions set out in any franchise ordinance enacted by the City Council, the City may declare a forfeiture, and/or may sue such person, firm or corporation for damages for such noncompliance, and/or may exercise any other rights or remedies provided by law. (Ord. 96-04 § 1 (part), 1996) 3-10.24 Penalty for exercising rights without franchise. In addition to any other remedies that the City may have, any person, firm or corporation exercising any right or privilege for which a franchise is required, without possessing a valid and existing franchise therefor, shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not exceeding five hundred dollars ($500.00) or by imprisonment not exceeding six (6) months, or by both such fine and imprisonment. Each such person, firm or corporation shall be deemed guilty of a separate offense for each day during any portion of which said person, firm or corporation exercises any privilege for which a franchise is required, without possessing a valid and existing franchise therefor, and shall be punishable therefor as provided for in this ordinance. (Ord. 96-04 § 1 (part), 1996) 3-10.25 Franchise assignment. No franchise, permit or privilege granted by the City of Avenal shall be, in whole or in part, leased, assigned, transferred or otherwise disposed of without the express written consent of the City, provided that nothing herein shall be construed to prevent the grantee of such franchise, permit or privilege from including it in a mortgage or trust deed without such express consent of the City. (Ord. 96-04 § 1 (part), 1996) 3-10.26 Reservations of rights. (a) The City reserves the right to change the grade, to change the width or to alter or change the location of any street over which the franchise is granted. (b) The City reserves the right for itself and public entities which are now or may later be established to lay, construct, repair, alter, relocate and maintain subsurface or other facilities or improvements of any type or description within the City streets over which the franchise is granted. If the City or other public entity finds that the location or relocation of such facilities or improvements conflicts with the

Title 3 FINANCE Avenal, California, Code of Ordinances Page 47 facilities laid, constructed or maintained under the franchise, whether such facilities were laid before or after the facilities of the City or such public entity were laid, the grantee of such franchise shall at no expense to the City or public entity, on or before a date specified in a written request from the Public Works Director, which date shall be not less than thirty (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 Public Works Director. Grantee shall thereafter diligently prosecute such work to completion. If such street be subsequently constituted a state highway, while it remains a state highway the rights of the State of California shall be as provided in Streets and Highways Code Section 680 as it presently exists or may be amended or superseded. (c) The City reserves the right for itself, for all cities and public entities which are now or may be later established, to improve the surface of any City street over which the franchise is granted, upon written notice that the grantor intends to improve any such City street within the territory covered by the franchise, and requests that the grantee erect, install, lay or construct beneath the surface of the City street the facilities which at that time are known or believed by the grantor 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 thirty (30) days from receipt of such written notice and request, and diligently prosecute such work to completion. After the completion of said highway improvements by the grantor, the right of the grantee to lay or construct facilities in, under or through the improved surface of said City street or portion of the City street, under the franchise, shall be subject to such additional terms and conditions as the Public Works Director may impose to minimize any damage to such improved surface. (d) The City expressly reserves the right and privilege, at no cost to the City, of installing and maintaining four (4) 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 (4) circuits to be installed and maintained by the City. (Ord. 96-04 § 1 (part), 1996) 3-10.27 Relocation of facilities. If any of the facilities heretofore or hereafter 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 or public entity upon receipt of a written request from the Public Works 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 thirty (30) days from receipt of such written request, and thereafter diligently prosecute such work to completion; provided, however, if such City streets be subsequently constituted a state highway, thereafter and so long as such highway remains a state highway, no such change of location shall be required for a temporary purpose. (Ord. 96-04 § 1 (part), 1996) 3-10.28 Failure to relocate. 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 or public

Title 3 FINANCE Avenal, California, Code of Ordinances Page 48 entity may cause the work to be done and shall keep an itemized account of the entire cost thereof, and the grantee shall hold harmless the City, its officers and employees from any liability which may arise, or be claimed to arise from the moving, cutting or alteration of any of grantee's facilities, or the turning on or off of water, oil or other liquid, gas or electricity. The grantee agrees to and shall reimburse the City or public entity for such cost within thirty (30) days after presentation to the grantee of an itemized account of such cost. (Ord. 96-04 § 1 (part), 1996) 3-10.29 Special permits. When the City Council shall find that an emergency exists and that public convenience and necessity require it, a special permit may be granted to any applicant for a franchise to permit such applicant to proceed with the relocation, extension, alteration or other change in existing facilities, except repairs or maintenance changes, which relocation, extension, alteration or other change in existing facilities by reason of such emergency should be made before the securing of a franchise is possible. Such special permit shall only be granted to an applicant for a franchise and shall only be granted after the filing of the application for a franchise as provided herein. (Ord. 96-04 § 1 (part), 1996) 3-10.30 Application for special permit. An application for a special permit shall be filed in writing with the City Council setting forth such information as will permit action thereon. Reference in the application may be made to the application for a franchise for a description of the proposed extension, alteration or other change in existing facilities. Applications for special permits shall be referred to the City Attorney and the City Manager in the manner provided for applications for franchises. (Ord. 96-04 § 1 (part), 1996) 3-10.31 Special permits—Granting. All such special permits shall be granted under the express condition that if a franchise under this chapter is not granted and accepted, all work done under such special permit shall be removed immediately at applicant's expense and the streets or alleys or other public places affected by such work shall be placed in as good condition as before such work was done, all to the satisfaction of the Directorof Public Works. (Ord. 96-04 § 1 (part), 1996) 3-10.32 Special permits—Bond. The City Council may require, as a condition to the granting of such special permits, that a bond of a kind and in an amount determined by the City Council shall be furnished by applicant conditioned upon the faithful performance of the terms and conditions of the permit and further conditioned that applicant shall prosecute diligently to completion all work thereunder, including removal work as hereinbefore provided. (Ord. 96-04 § 1 (part), 1996)