Diamond Bar Municipal Code Div. 1 Generally

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

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 means:

(1) 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 the ordinance, and each year thereafter, during the life of the franchise.

(2) 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 the 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 the 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, lane or court, or other public easement, and above and below the same, which now exists or which may hereafter exist in the city.

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 the members of the city council are ex officio members of the governing body.

Road commissioner means the commission, board or officer of the city, having powers and duties analogous or similar in such jurisdiction, respectively to the powers and duties of the county road commissioner.

Service connection means the wire, 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 private property.

(Ord. No. 14(1989), § 2(16.36.040—16.36.090, 16.36.110, 16.36.120, 16.36.140), 6-27-89)

Cross reference— Definitions generally, § 1.00.070.

This chapter shall be known as and may be cited as the "basic franchise ordinance."

(Ord. No. 14(1989), § 2(16.38.010), 6-27-89)

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. No. 14(1989), § 2(16.38.020), 6-27-89)

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. No. 14(1989), § 2(16.38.030), 6-27-89)

Any right or power conferred or duty 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. No. 14(1989), § 2(16.38.040), 6-27-89)

The application for a franchise shall be filed with the city council. Unless the franchise is to cover all of the territory of the city, the application shall be accompanied by six copies of a map, drawn to a size and scale approved by the road commissioner, showing the location boundaries of the area to be described in the franchise.

(Ord. No. 14(1989), § 2(16.38.050), 6-27-89)

Unless the ordinance granting the franchise provides otherwise, the term of the franchise shall be 25 years.

(Ord. No. 14(1989), § 2(16.38.060), 6-27-89)

The grantee, except the United States of America, in which case use will constitute acceptance, shall within 60 days after the passage of the ordinance granting the franchise, file with the clerk of the council a written acceptance of the terms and conditions of the ordinance, including such terms and conditions of this chapter as are incorporated by reference in the ordinance.

(Ord. No. 14(1989), § 2(16.38.070), 6-27-89)

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 by virtue of future annexations or incorporating, in the penal sum of $1,000.00, or such other sum as may be specifically provided in the notice of sale with surety to be approved by the city, 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 city council may repeal such ordinance. If 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 the bond with sureties to be approved by the city within ten days after written notice to do so from the city.

(Ord. No. 14(1989), § 2(16.38.080), 6-27-89)

If the notice of sale requires that the grantee shall file a corporate surety bond, it also may permit the deposit and assignment in lieu thereof of savings and loan certificates or shares in the same amount, subject to all of the provisions of Code of Civil Procedure § 995.710. If the grantee elects to so deposit and assign savings and loan certificates or shares, he shall assign such certificates or shares to the city and deposit them with the clerk of the council.

(Ord. No. 14(1989), § 2(16.38.090), 6-27-89)

Prior to publication of the notice of sale, the applicant for a franchise shall deposit with the clerk of the council a sum which the clerk estimates to be ample to cover the cost of such publication.

(Ord. No. 14(1989), § 2(16.38.100), 6-27-89)

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:

(1) Refund the difference to the applicant if the franchise is not awarded to him;

(2) 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. No. 14(1989), § 2(16.38.110), 6-27-89)

(a) The grantee, except the grantee of a franchise for a railroad track, shall file with the road commissioner, 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 600 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. No. 14(1989), § 2(16.38.120), 6-27-89)

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 13.08.170.

(Ord. No. 14(1989), § 2(16.38.130), 6-27-89)

(a) The grantee of any franchise awarded to a public utility or mutual water company, except a franchise for a railroad 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.

(b) 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.

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

(d) 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 the 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 the extension.

(e) As used in subsection (a) of this section, the phrase "two percent of the gross annual receipts of the grantee arising from the use, operation or possession of the franchise" shall be construed as that similar phrase found in Public Utilities Code § 6006.

(Ord. No. 14(1989), § 2(16.38.140), 6-27-89)

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. No. 14(1989), § 2(16.38.150), 6-27-89)

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 pursuant to section 13.08.110. The grantee shall not receive credit for any deposit made by any other person.

(Ord. No. 14(1989), § 2(16.38.160), 6-27-89)

If the applicant does not bid for the franchise and the franchise is not awarded to any person, or if the franchise is awarded to the applicant and he fails to accept it, the applicant shall pay the entire cost of publication of the notice of sale. The amount of money which he deposited shall first be applied and, if insufficient, within 30 days of notice thereof, the applicant shall pay the difference to the city.

(Ord. No. 14(1989), § 2(16.38.170), 6-27-89)

If the franchise is awarded to a person other than the applicant and such grantee pays all publication costs to the city, upon such payment the city shall refund to the applicant the amount which he deposited minus such portion thereof, if any, already refunded to him.

(Ord. No. 14(1989), § 2(16.38.180), 6-27-89)

(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 county auditor-controller for each franchise payment period, within 90 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 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 opinion of the county auditor-controller, to calculate or verify the calculation of the annual payment required by section 13.08.150, 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) If the amount paid is incorrect in the judgment of the council, it may order the payment of such additional sum as it may find due thereunder; and if not paid, or if paid under protest, the same may be determined by suit.

(Ord. No. 14(1989), § 2(16.38.190), 6-27-89)

Should any annual report and accompanying payment be not made under section 13.08.200 within the 90-day period therein mentioned, the grantee shall further pay interest on the amount due under that section at the rate of one percent per month from the last day of the franchise payment period for which such payment was due.

(Ord. No. 14(1989), § 2(16.38.200), 6-27-89)

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

(Ord. No. 14(1989), § 2(16.38.210), 6-27-89)

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. No. 14(1989), § 2(16.38.220), 6-27-89)

(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 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 council before the expiration of 60 days after the effective date of such sale, transfer, assignment or lease then, upon the expiration of such 60 days, the franchise shall be subject to forfeiture and the 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 council may deem to be in the public interest. Such additional terms and conditions shall be expressed by ordinance.

(c) Nothing contained in this section 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. No. 14(1989), § 2(16.38.230), 6-27-89)

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 section as are incorporated by reference in the franchise ordinance, and shall ever be strictly construed against the grantee. Nothing shall pass thereby unless it be granted in plain and unambiguous terms. 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 council may hold a hearing, at which the grantee shall have the right to appear and be heard, and thereupon the 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 the hearing shall be given to the grantee by certified mail not less than five days before the hearing.

(Ord. No. 14(1989), § 2(16.38.240), 6-27-89)

(a) 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 the poles or conduits for the use of the city after the time that the grantee has no further use therefor.

(b) 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 state public utilities commission for similar installations.

(Ord. No. 14(1989), § 2(16.38.260), 6-27-89)

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 the 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. No. 14(1989), § 2(16.38.270), 6-27-89)

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 division 5 of chapter 12.04 of this Code, as now existing or hereafter amended or superseded.

(Ord. No. 14(1989), § 2(16.38.280), 6-27-89)

The grantor and its successor in authority shall have the right at any time during the term of the franchise, and after five years from the effective date of the ordinance granting 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 state public utilities commission, or any portion thereof constructed, acquired or operated under the franchise upon making reasonable compensation therefor.

(Ord. No. 14(1989), § 2(16.38.290), 6-27-89)

If any highway or portion thereof comes under the jurisdiction of another public entity, so long as the facilities of the grantee are maintained in such highway or such portion thereof under the authorization of the franchise, except for such rights as by law remain with the city, the public entity shall succeed to all rights reserved to the city by the franchise.

(Ord. No. 14(1989), § 2(16.38.300), 6-27-89)

(a) 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. 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.

(b) 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 other public entity.

(c) This section does not require any change of location in a state highway for a temporary purpose.

(Ord. No. 14(1989), § 2(16.38.310), 6-27-89)

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 council, and shall be of first class and standard material and subject to the approval of any duly authorized representative of the council, unless otherwise provided in the ordinance granting the franchise. In case of public utilities subject to the jurisdiction of the state public utilities commission, the rules, regulations and orders of the state public utilities commission shall govern whenever any conflict may exist between them and the ordinances, codes, rules and regulations adopted or prescribed by the council.

(Ord. No. 14(1989), § 2(16.38.320), 6-27-89)

Whenever the provisions of this chapter, or the ordinance granting the 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. No. 14(1989), § 2(16.38.330), 6-27-89)

Where the provisions of division 2 of chapter 12.04, or the provisions of whatever superseding or supplementary ordinance shall be in force at the time, 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. No. 14(1989), § 2(16.38.340), 6-27-89)

(a) 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 county 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. To make such determination, consideration shall be given to:

(1) Type of commodity to be transmitted;

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

(3) Adequacy of water supplies for fire control purposes;

(4) Extent of available public fire protection facilities; and

(5) Number and location of shutoff valves in line.

(b) 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. No. 14(1989), § 2(16.38.350), 6-27-89)

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 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 the facilities is completed, all portions of the highway which have been excavated or otherwise injured thereby shall be placed in as good a condition as the same was before erecting, constructing, laying, replacing, repairing or, removing of the facilities, to the satisfaction of the road commissioner. 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. No. 14(1989), § 2(16.38.360), 6-27-89)

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

(1) All mains laid under the franchise, except electrical conduits, shall be laid and maintained not less than 30 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 24 inches below the gutter grade.

(2) 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. No. 14(1989), § 2(16.38.370), 6-27-89)

(a) The county 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 highway 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 road commissioner may impose to minimize any damage to such improved surface.

(c) As to franchises granted for railroad tracks, the applicable rules, regulations and orders of the state public utilities commission shall govern whenever any conflict may exist between them and the terms and conditions which may be imposed upon the grantee by the road commissioner.

(Ord. No. 14(1989), § 2(16.38.380), 6-27-89)

(a) If the city or public entity constructs or maintains any storm drain, sewer structure or other facility or improvement under or across any facility of the grantee maintained pursuant to this chapter, 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 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. No. 14(1989), § 2(16.38.390), 6-27-89)

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 a condition as it was before such damage was incurred, to the satisfaction of the road commissioner. If the grantee, within ten days after receipt of written notice from the road commissioner 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 road commissioner immediately may do whatever work is necessary to carry out such instructions 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 road commissioner, without notice, may repair such damage and the grantee agrees to pay the reasonable costs thereof upon demand.

(Ord. No. 14(1989), § 2(16.38.400), 6-27-89)

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. No. 14(1989), § 2(16.38.410), 6-27-89)

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 other public entity upon receipt of a written request from the road commissioner 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; provided, however, that if such highway is 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. No. 14(1989), § 2(16.38.420), 6-27-89)

Notwithstanding any other provisions of this chapter, 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 shall be determined separately in each individual franchise.

(Ord. No. 14(1989), § 2(16.38.430), 6-27-89)

The city reserves the right for itself, and other 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 in a governmental but not proprietary capacity within the highways 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 road commissioner, 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 the highways to be approved by the road commissioner, and thereafter diligently prosecute such work to completion. If such highway is subsequently constituted a state highway, while it remains a state highway the rights of the state shall be as provided as in Streets and Highways Code § 680.

(Ord. No. 14(1989), § 2(16.38.440), 6-27-89)

(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 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.

(b) The grantee agrees to, and shall, reimburse the city or public entity for such cost within 30 days after presentation to the grantee of an itemized account of such turning on.

(Ord. No. 14(1989), § 2(16.38.450), 6-27-89)

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. No. 14(1989), § 2(16.38.460), 6-27-89)

The road commissioner, upon such terms and conditions as he 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 its 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 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. No. 14(1989), § 2(16.38.470), 6-27-89)

Whenever in any ordinance heretofore adopted granting a franchise it is provided that the city council may give the grantee or assignee of the franchise permission to abandon in place without removing any facility laid, erected, constructed, operated or maintained under the franchise, the road commissioner also, upon such terms and conditions as he may see fit to impose, may grant such permission if he finds that such abandonment, subject to the terms and conditions imposed, if any, will not tend to injure the highway or pavement thereof. Such permission, by the road commissioner, shall have the same force and effect as permission by the city council.

(Ord. No. 14(1989), § 2(16.38.480), 6-27-89)

Application by the grantee or assignee of a franchise to the road commissioner for permission to abandon any such facility shall lie deemed an acceptance of the offer made by sections 13.08.460 and 13.08.470 to amend the ordinance granting the franchise, and such ordinance shall be deemed so amended.

(Ord. No. 14(1989), § 2(16.38.490), 6-27-89)

If the franchise granted grants all or any of the rights and privileges owned by the grantee by reason of any existing franchises owned in whole or in part by the grantee, from and after the effective date of the ordinance granting the new franchise, such existing franchises, to the extent that the new franchise grants the same rights, and to the extent of the grantee's interest therein, shall become inoperative as to all territory within the city, except as to highways which, upon the effective date of the ordinance granting the franchise, are included within the highway system of the state as state highways, saving, however, to the city the right to recover from the grantee any and all sums due under the terms of such superseded franchises arising prior to the effective date of the ordinance granting the franchise.

(Ord. No. 14(1989), § 2(16.40.010), 6-27-89)

Notwithstanding the provisions of such superseded or partially superseded franchises, the respective amounts of the payments to be made to the city thereunder, as to such state highways on and after the effective date of the ordinance granting the new franchise, shall be determined in the same manner as payments are determined under such new franchise.

(Ord. No. 14(1989), § 2(16.40.020), 6-27-89)

Except as otherwise provided in this chapter, all facilities maintained by the grantee in highways under the terms of such superseded or partially superseded franchises, to the extent that such superseded or partially superseded franchises apply to the territory of the city, upon the effective date of the ordinance granting the new franchise, shall be maintained under and pursuant to the terms of such new franchise.

(Ord. No. 14(1989), § 2(16.40.030), 6-27-89)