Article I — IN GENERAL

For the purposes of this chapter, the following words and phrases shall have the meanings respectively ascribed to them by this section:

"Director of public works" means the director of public works of the city. If any highway becomes a state highway, then as to such state highway, director of public works means the commission, board or officer of the state having powers and duties analogous or similar to the powers and duties of the director of public works in the city.

"Facilities" mean all property of the grantee, including service connections with the grantee's facilities, whether installed by the grantee or not, erected, constructed, laid, operated or maintained in, upon, over, under, along or across any highway pursuant to any right or privilege granted by the franchise.

"Franchise payment period."

(a)

If the franchise grants to a public utility or to a mutual water company a right not theretofore in existence, the sixth year after the effective date of the ordinance granting the franchise, or at the option of the grantee, any shorter period of time immediately following the expiration of five years after the effective date of such ordinance, and each year thereafter, during the life of the franchise.

(b)

In all other cases, including all franchises granted to persons who are neither public utilities nor mutual water companies, the first year after the effective date of the ordinance granting the franchise, or at the option of the grantee, any shorter period of time immediately following the effective date of such ordinance, and each year thereafter, during the life of the franchise.

"Franchise report period" means the first year after the effective date of the ordinance granting the franchise, or at the option of the grantee, any shorter period of time immediately following the effective date of such ordinance, and each year thereafter, during the life of the franchise.

"Grantee" means the person to whom the franchise is granted and any person to whom it lawfully may be assigned.

"Highway" means any public highway, freeway, except a state freeway, street, road, alley, land or court or other public easement, and above and below the same which exists in any incorporated territory of the city and in which the city has the authority to grant a franchise. "Street" has the same meaning as "Highway."

"Main" means any pipeline or conduit laid along or approximately parallel with and in any highway for the transmission or distribution of electricity or any substance or commodity.

"Public entity" means any district or other political subdivision of which the city council is ex officio the governing body or of which the members of the city council are ex officio members of the governing body. "Public entity" also includes any political subdivision of the state.

"Service connection" means the wires, pipes or conduits connecting the building or place where the service or commodity supplied by the grantee is used or delivered, or is made available for use or delivery, with the supply line or supply main in the highway or with such supply line or supply main on public property.

(Ord. 177 §1(part), 1972).

Every franchise granted by the city for the use of city streets for any purpose, except as otherwise provided in the ordinance granting such franchise, shall be granted upon and be subject to such of the rules, regulations, restrictions, terms and conditions of this chapter as are incorporated in such granting ordinance by reference, in addition to the rules, regulations, restrictions, terms and conditions set forth in the ordinance granting each such franchise.

(Ord. 177 §1(part), 1972).

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 contained in this chapter as are incorporated by reference in such franchise ordinance, and shall be strictly construed against the grantee. Nothing shall pass thereby unless it is granted in plain and unambiguous terms.

(Ord. 177 §1(part), 1972).

The granting of a franchise or any of the terms or conditions contained therein shall not be construed to prevent the city from granting any identical or similar franchise to any person other than the grantee. ;hn0; (Ord. 177 §1(part), 1972).

Application for a franchise shall be filed with the city council. Unless the franchise i to cover all of the incorporated territory of the city, the application shall be accompanied by six copies of a map drawn to a size and scale approved by the director of public works showing the location boundaries of the area to be described in the franchise.

(Ord. 177 §1(part), 1972).

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 city, a corporate surety bond running to the city, and also to any public entity which may become entitled to the benefits herein reserved in the franchise in the penal sum of one thousand dollars or such other sum as may be specifically provided in the notice of sale with surety to be approved by the city council, conditioned that the grantee shall well and truly observe, fulfill and perform each term and condition of the bond. The whole amount of the penal sum named in such bond 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 required in this section, 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 city council may repeal such ordinance. In the event that the 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 such bond with sureties to be approved by the city council within ten days after written notice to do so from the city council.

(Ord. 177 §1(part), 1972).

The grantee shall pay to the city, within thirty 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.

(Ord. 177 §1(part), 1972).

The grantee, except the United States of America, in which case use will constitute acceptance, shall, within sixty days after the passage of the ordinance granting the franchise, file with the city clerk a written acceptance of the terms and conditions of such ordinance, including such terms and conditions of this chapter as are incorporated by reference in such ordinance.

(Ord. 177 §1(part), 1972).

Unless the ordinance granting a franchise provides otherwise, the term of the franchise shall be twenty-five years.

(Ord. 177 §1(part), 1972).

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 thirty 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 with respect thereto and may declare the franchise suspended or forfeited. Notice of such hearing shall be given to the grantee by certified mail not less than five days before such hearing.

(Ord. 177 §1(part), 1972).

The grantee of any franchise awarded to a public utility or mutual water company, except a franchise for a spur, drill or team track, shall during the life of the franchise pay to the city, in lawful money of the United States, two percent of the gross annual receipts of the grantee arising from the use, operation or possession of the franchise subject to the following conditions:

(a)

No percentage shall be paid for the first five years succeeding the effective date of the franchise but thereafter such percentage shall be payable annually.

(b)

If the franchise is a renewal of a right already in existence, the payment of such percentage of gross receipts shall accrue from the effective date of the ordinance granting the franchise.

(c)

In case the franchise is granted to a street railway company or trackless trolley and provides for an extension of an existing system, then the gross receipts shall be estimated to be one-half of the proportion of the total gross receipts of such system, which the mileage of such extension bears to the total mileage of the whole system, and such estimate shall be conclusive as to the amount of the gross receipts of such extension.

As used in this section, the phrase "two percent of the gross annual receipts of the grantee arising from the use, operation or possession of the franchise" means that similar phrase found in §6006 of the Public Utilities Code of the state and in former §3 of Chapter 578, page 777, Statutes of 1905, popularly known as the Broughton Act.

(Ord. 177 §1(part), 1972).

If any highway or portion thereof becomes a state highway, except for the right to continue to collect franchise payments and such other rights as by law remain with the city, the state shall succeed to all rights reserved to the city by the franchise; but this provision shall not preclude the grantee from receiving reimbursement for the relocation of its facilities if and to the extent otherwise lawfully entitled thereto.

This section applies to any highway or portion thereof which becomes a state highway in which the grantee maintains its facilities under the authorization of the franchise at the time such highway or such portion thereof becomes a state highway, whether at such time it is under the jurisdiction of the city or of any public entity.

(Ord. 177 §1(part), 1972).

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. 177 §1(part), 1972).

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. 177 §1(part), 1972).

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 pursuant to Section 5.08.070.

(Ord. 177 §1(part), 1972).

The grantee of any franchise awarded to a public utility or a mutual water company, except a franchise for a spur, drill or team track, shall file with the city finance director for each franchise payment period, within ninety days after such period, two copies of a report verified by the oath of the manager, or any 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 franchising of the commodity or service arising from the use or operation of the franchise, together with such additional data as is necessary in the opinion of the city finance director to calculate or verify the calculation of the annual payment required by Section 5.08.110, or

the pro rata thereof for the first period if the first period is less than one year, which payment shall be paid concurrently with the filing of the statement.

(Ord. 177 §1(part), 1972).

Should any annual report and accompanying payment not be made under Section 5.08.160 within the ninety-day period mentioned in such section, the grantee shall further pay interest on the amount due under Section 5.08.110 at the rate of one percent per month from the last day of the franchise payment period for which such payment was due.

(Ord. 177 §1(part), 1972).

At all reasonable times, the grantee shall permit any duly authorized representative of the city council 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 transcribe all books, accounts, papers, maps and other records kept or maintained by the grantee or under its control which pertain to the operations, affairs, transactions, property or financial condition of the grantee with respect thereto.

(Ord. 177 §1(part), 1972).

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. If such duly executed instrument and such written request is not filed with the city council before the expiration of sixty days after the effective date of such sale, transfer, assignment or lease then, upon the expiration of such sixty days, the franchise shall be subject to forfeiture and the city council may, without notice, by ordinance repeal the franchise.

(Ord. 177 §1(part), 1972).

As a condition of the granting of consent to sell, transfer, assign or lease a franchise, the city 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.

(Ord. 177 §1(part), 1972).

Nothing contained in §§5.08.190 or 5.08.200 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 provided in such sections. Such sections apply to any assignment, whether by operation of law, by voluntary act of the grantee or otherwise. No 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 the grantee.

(Ord. 177 §1(part), 1972).

Any right or power conferred or duly imposed upon any officer, employee, department or board of the city shall be subject to transfer by operation of law to any other officer, employee, department or board of the city.

(Ord. 177 §1(part), 1972).

The grantee of a franchise shall not commence any excavation work under the franchise until he shall have obtained such permit as may be required by any ordinances and regulations of the city governing excavations in and other work in and upon the public streets of the city, 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. 177 §1(part), 1972).

Unless the director of public works finds that special circumstances make it impossible or not feasible to do so:

(a)

All mains laid under a franchise, except electrical conduits, shall be laid and maintained not less than thirty inches below the gutter grade 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 twenty- four inches below the gutter grade.

(b)

All other facilities including electrical conduits and service connections laid under a franchise shall be laid and maintained not less than twenty-four inches below the gutter grade.

(Ord. 177 §1(part), 1972).

flammable liquids.

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 chief. 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. To make such determination, consideration shall be given to:

(a)

Type of commodity to be transmitted;

(b)

Density of population or structural development in the area through which such pipeline will be located;

(c)

Adequacy of water supplies for fire control purposes;

(d)

Extent of available public fire protection facilities;

(e)

Number and location of shutoff valves in pipeline;

Such review and approval shall be confined only to that pipeline or portion of a pipeline for which such excavation permit has been applied.

(Ord. 177 §1(part), 1972).

The grantee of a franchise shall be responsible to the city and save the city and its officers and employees free and harmless from all damages or liability arising from the use, operation or possession of the franchise and from the use, operation or maintenance of the facilities erected, constructed, laid, operated or maintained under such franchise.

(Ord. 177 §1(part), 1972).

All facilities erected, constructed, laid, operated and maintained under the provisions of a franchise shall be erected, constructed, laid, operated or maintained in accordance with and conforming to all the ordinances, codes, rules and regulations adopted or prescribed by the city council and shall be of first-class and standard material and subject to the approval of any duly authorized representative of the city council unless otherwise provided in the ordinance granting the franchise. In case of public utilities subject to the jurisdiction of the Public Utilities Commission of this state, the rules, regulations and orders of the Public Utilities Commission shall govern whenever any conflict may exist between them and the ordinances, codes, rules and regulations adopted or prescribed by the city council.

(Ord. 177 §1(part), 1972).

The work of erecting, constructing, laying, replacing, repairing or removing facilities authorized under the provisions of this chapter in, upon, over, under, along or across any street shall be conducted with as little hindrance as practicable to the use of the streets for purpose of travel; and as soon as the erecting, constructing, laying, replacing, repairing or removing of any of such facilities is completed, all portions of the streets which have been excavated or otherwise injured thereby shall be placed in as good condition as the same were before the erecting, constructing, laying, replacing, repairing or removing of such facilities to the satisfaction of the director of public works. The grantee shall be responsible to the city and shall save the city, its officers and employees, 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 such work or the failure of the grantee to properly perform, maintain or protect any phase of the work.

(Ord. 177 §1(part), 1972).

by city.

The city council, in granting the franchise, does expressly reserve at no cost to the city the right and privilege of installing and maintaining four 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. The grantee of a franchise shall have no responsibility or liability for the installation, maintenance or operation of such circuits by the city, nor shall the grantee have any responsibility to avoid inductive interference or induced voltages in any such circuits. The grantee shall not be obligated to continue to maintain such poles or conduits for the use of the city after the time that the grantee has no further use therefor.

The city shall install and maintain its telephone or telegraph circuits in accordance with Public Utilities Commission General Order 95 or other current standards set by the Public Utilities Commission for similar installations.

(Ord. 177 §1(part), 1972).

The city reserves the right for itself and any public entities to lay, construct, repair, alter, relocate and maintain subsurface or other facilities or improvements of any type or description within 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 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 the date specified in a

written request from the director of public works which date shall be not less than thirty 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 such streets to be approved by the director of public works; and thereafter to diligently prosecute such work to completion. If such street is subsequently constituted a state highway, while it remains a state highway, the rights of the state shall be as provided in §680 of the State Streets and Highways Code.

As to franchises for spur, team or drill tracks, this section is subject to the provisions of §5.08.630. ;hn0; (Ord. 177 §1(part), 1972).

of terms of franchise.

The city reserves the right for itself, for all cities and public entities to improve the surface of any city street over which any 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 days from receipt of such written notice and request and diligently prosecute such work to completion.

After the completion of street improvements by the grantor, the right of the grantee to lay or construct facilities in, under or through the improved surface of such city street or portion of such city street, under the franchise, shall be subject to such additional terms and conditions as the director of public works may impose to minimize any damage to such improved surface.

(Ord. 177 §1(part), 1972).

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 a franchise is granted.

(Ord. 177 §1(part), 1972).

If any of the facilities erected, constructed, installed or maintained by the grantee pursuant to a franchise on, along, upon, over, in, under or across any street 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 street, the grantee shall relocate permanently or temporarily any such facility at no expense to the city, or other public entity upon receipt of a written request from the director of public works 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 days from receipt of such written request, and thereafter diligently prosecute such work to completion; provided, however, if such city street 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. 177 §1(part), 1972).

As to franchises for spur, team or drill tracks, §5.08.330:

(a)

Does not apply to a separation of grades between a highway and a railroad track;

(b)

In all other cases, is subject to the provisions of §5.08.630.

(Ord. 177 §1(part), 1972).

Liability for the relocation of facilities necessitated by change of grade, traffic needs, operation, maintenance, improvement, repair, construction, reconstruction, widening, alteration or relocation of freeways, may be determined separately in each individual franchise but if not so determined, shall be governed by the provisions of this chapter.

(Ord. 177 §1(part), 1972).

relocation costs to city.

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 street or to pave, surface, grade, repave, resurface or regrade as required pursuant to any provision of a franchise, the city or public 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 the 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 days after presentation to the grantee of an itemized account of such cost.

(Ord. 177 §1(part), 1972).

Nothing in this chapter shall require the grantee to relocate its facilities in a state freeway to any greater extent than otherwise obligated to do, if at all.

(Ord. 177 §1(part), 1972).

If the city or any public entity constructs or maintains any storm drain, sewer structure or other facility or improvement, under or across any facility of a grantee maintained pursuant to a franchise-granting ordinance, the grantee shall provide at no expense to the city or public entity such support as shall be reasonably required to support, maintain and protect the grantee's facility.

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. 177 §1(part), 1972).

If any portion of any street damaged by reason of facilities laid or constructed under a franchise, the grantee shall, at his own expense, repair any such defect and put such street in as good condition as it was before such damage was incurred, to the satisfaction of the director of public works. If the grantee, within ten days after receipt of written notice from the director of public works instructing it to repair such damage, fails to commence to comply with such instruction, or, thereafter, fails, diligently to prosecute such work to completion, then the director of public works, immediately, may do whatever work is necessary to carry out such instruction 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 of public works without notice may repair such damage and the grantee agrees to pay the reasonable cost thereof upon demand.

(Ord. 177 §1(part), 1972).

Every grantee, except the grantee of a franchise for a spur, drill or team track shall file with the director of public works, within ninety days after the effective date of the ordinance granting the franchise and each year thereafter within ninety days after the anniversary of the effective date of such ordinance, a map or set of maps, each drawn to a scale not smaller than six hundred 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 city streets described in and maintained pursuant to the authority of the ordinance granting the franchise. 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. 177 §1(part), 1972).

The director of public works, upon such terms and conditions as he may see fit to impose, may give the grantee of a 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 its franchise payments the length of any abandoned facility of the grantee except in the manner set out in this section. Unless such permission is granted, the grantee shall remove all abandoned facilities within ninety 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. 177 §1(part), 1972).

Whenever this chapter or an ordinance granting a franchise requires the grantee to take any action or perform and complete any work within a specified time and the grantee is prevented from taking such action or performing or completing such work by reason of conditions or delays beyond the reasonable control of the grantee, the time for taking such action or performing or completing such work shall be extended by the time the grantee was so prevented. This section does not apply to the making of the annual payments required in this chapter and in the ordinance granting the franchise.

(Ord. 177 §1(part), 1972).

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 now existing, or as hereafter amended or superseded.

(Ord. 177 §1(part), 1972).