Fresno Municipal Code Art. 4 Franchise Ordinance

This article shall be known as the Franchise Ordinance of the city. (Added Ord. 79-174, § 1, eff. 11-30-79)

(a) Unless the particular provision or the context requires, the definitions and provisions contained in this section shall govern the construction, meaning, and application of words and phrases used in this article, and, except to the extent that a particular word or phrase is otherwise specifically defined in this section, the definitions and provisions contained in Article 2 (commencing with Section 1-201) of Chapter 1 of this Code shall also govern the construction, meaning, and application of words and phrases used in this article. The definition of each word or phrase shall constitute, to the extent applicable, the definition of each word or phrase which is derivative from it, or from which it is a derivative, as the case may be.

(b) "CAO" means the Chief Administrative Officer of the city or his designee.

(c) "Franchise" means and includes any authorization granted hereunder in terms of a franchise, privilege, permit, license or otherwise to construct, operate and maintain a utility within all or a specified area in the city.

(d) "Service Area" means the territory within the city throughout which grantee shall be authorized hereunder to construct, maintain, and operate its system and shall include any enlargements thereof and additions thereto.

(e) "Grantee" means any person, firm, or corporation receiving the grant of any franchise hereunder and shall include any lawful successor to the interest of such person, firm, or corporation.

(f) "Subscriber" or "User" means any person or entity receiving for any purpose any service of the grantee's system.

(g) "Utility" means transportation, communication, terminal facilities, water, light, heat, electricity, gas, power, refrigeration, storage or any other public utility or service, or using the public streets, ways, alleys or places for operation of plants, works or equipment for the furnishing thereof, or traversing any portion of the city for the transmitting or conveying of any service thereof, except utilities otherwise franchised by this Code.

(h) "Person" means any individual, partnership, corporation or other entity including special districts providing utility services. (Added Ord. 79-174, § 1, eff. 11-30-79; Am. Ord. 84-8, §§ 3, 4, eff. 1-17-84).

A nonexclusive franchise to install, construct, operate, and maintain a new utility or to enlarge the service area of an existing utility within all or a specific portion of the city may be granted by the Council to any person, whether operating under an existing franchise, or not, who offers to furnish and provide such utility service pursuant to the terms and provisions of this article. No provision of this article may be deemed or construed to require the granting of a franchise when in the opinion of the Council it is in the public interest to restrict the number of grantees or operate such service as a municipal utility. No person shall establish, operate, or maintain a utility supplying or servicing the inhabitants of the city of Fresno without the consent of the city. (Added Ord. 79-174, § 1, eff. 11-30-79; Am. Ord. 84-8, § 1, eff. 1-17-84).

All applications to construct, operate, or maintain any utility in this city shall be filed with the City Clerk, and each such application shall set forth, contain, or be accompanied by the following:

(a) The name, address, and telephone number of the applicant.

(b) A detailed statement of the corporate or other business entity organization of the applicant, including, but not limited to, the following:

(1) The names, residence addresses and business addresses of all officers, directors, and associates of the applicant.

(2) The names, residence addresses and business addresses of all persons and entities having, controlling, or being entitled to have or control five per cent or more of the ownership of the applicant and the respective ownership share of each such person or entity.

(3) The names and addresses of any parent or subsidiary of the applicant and of any other business entity owning or controlling in whole or in part or owned or controlled in whole or in part by the applicant, and a statement describing the nature of any such parent or subsidiary business entity, including, but not limited to, all similar systems owned or controlled by the applicant, its parent or subsidiary and the areas served thereby.

(4) A detailed description of all previous experience of the applicant in providing the same service or related or similar services.

(5) A detailed and complete financial statement of the applicant, prepared by a certified public accountant, for the fiscal year next preceding the date of the application hereunder, or a letter or other acceptable evidence in writing from a recognized lending institution or funding source, addressed to both the applicant and the Council, setting forth the basis for a study performed by such lending institution or funding source, and a clear statement of its intent as a lending institution or funding source to provide whatever capital shall be required by the applicant to construct and operate the proposed system in the city, or a statement from a certified public accountant, certifying that the applicant has available sufficient free, net and uncommitted cash resources to construct and operate the proposed system or enlargement thereof in this city.

(6) A statement identifying, by place and date, any other franchise(s) awarded to the applicant, its parent or subsidiary; the status of said franchise(s) with respect to completion thereof; the total cost of completion of such system(s); and the amount of applicant's and its parent's or subsidiary's resources committed to the completion thereof.

(c) A detailed description of the proposed plan of operation of the applicant, which shall include, but not be limited to, the following:

(1) A detailed map indicating all areas proposed to be served, and a proposed time schedule for the installation of all equipment necessary to become operational throughout the entire area to be served.

(2) A statement or schedule setting forth all proposed classifications of rates and charges to be made against subscribers and all rates and charges as to each of any said classifications, including installation charges, service charges, and special, extraordinary, or other charges. The purchase price, terms and nature of any optional or required equipment, device, or other thing to be offered for sale to any subscriber shall be described and explained in detail.

(3) A detailed, informative, and referenced statement describing the actual equipment and operational standards proposed by the applicant. In no event shall said operational and performance standards be less than those contained in any city standard specifications as the same may be amended from time to time.

(d) A copy of the form of any agreement, undertaking, or other instrument proposed to be entered into between the applicant and any subscriber.

(e) A copy of any agreement covering the service area, if existing between the applicant and any public utility subject to regulation by the California Public Utilities Commission, providing for the use of any facilities of the public utility, including, but not limited to, poles, lines, or conduits.

(f) Any other details, statements, information or references pertinent to the subject matter of such application which shall be required or requested by the CAO.

(g) An application fee in the sum of one hundred dollars ($100.00), which shall be in the form of cash, certified or cashier's check, or money order, to pay the costs of studying, investigating, and otherwise processing such application, and which shall be in consideration thereof and not returnable or refundable in whole or in part; provided, that any applicant who shall deliver to the City Clerk a written withdrawal of or cancellation of any application hereunder, not later than the seventh day next following the day such application is received by the City Clerk, shall be entitled to have returned and refunded the sum of fifty dollars ($50.00). (Added Ord. 79-174, § 1, eff. 11-30-79).

The procedures set forth in Article XIII of the Charter of the city and this article shall govern the procedure for granting or denying franchises. The Council may adopt by resolution such additional procedures not inconsistent with the Charter or this article. (Added Ord. 79-174, § 1, eff. 11-30-79).

(a) No franchise hereunder shall become effective for any purpose unless and until written acceptance thereof shall have been filed with the City Clerk; and such written acceptance shall be in form and substance as shall be prescribed and approved by the City Attorney and shall be and operate as an acceptance of each and every term and condition and limitation contained in this article, in such franchise, or otherwise specified as herein provided.

(b) Such written acceptance shall be so filed by grantee not later than 12:01 p.m. of the fifth day next following the effective date of the ordinance granting such franchise; and in default of the filing of such written acceptance as herein required, grantee shall be deemed to have rejected and repudiated the same; and thereafter, the acceptance of any such grantee shall not be received nor filed by the City Clerk, and such grantee shall have no rights, remedies, or redress in the premises, unless and until the Council shall, by resolution, determine that such acceptance by received or filed, and then upon such terms and conditions as the Council may impose; provided, that in any case and in any instance, all rights, remedies, and redress in these premises which may or shall be available to the city, shall at all times be so available to the city, and shall be preserved and maintained and shall continuously exist in and to the city, and shall not be in any manner or means modified, abridged, altered, restricted, or impaired by reason of any of these premises, or otherwise. (Added Ord. 79-174, § 1, eff. 11-30-79).

Willful failure, refusal, or neglect by grantee to do or comply with any requirement or limitation herein, or any term or condition of any franchise issued hereunder, shall be sufficient cause for termination of any franchise by the city, as follows:

(a) Upon the continuing of any such failure, refusal, or neglect for a period of ten days next following written demand by the AEO that the grantee do or comply with any such requirement, limitation, term or condition, the CAO may cause to be placed upon the agenda of a regular session of the Council his request for termination of such franchise, and in such case, the CAO shall cause to be served upon such grantee, at least five days prior to the date of such session of the Council, a written notice of his intent to request such termination at the time and place of such session.

(b) At such session of the Council, or at any adjournment thereof, the Council shall consider the request of the CAO, and shall hear any persons interested therein, and shall determine whether or not any such failure, refusal or neglect by grantee was with just cause.

(c) If the Council shall determine such failure, refusal or neglect by grantee was with just cause, it shall direct grantee to comply within such time and manner and upon such terms and conditions as the Council shall determine to be reasonable.

(d) If the Council shall determine such failure, refusal or neglect by grantee was without just cause, then the Council may pass its resolution declaring that the franchise of such grantee shall be terminated and forfeited unless there be compliance by grantee within ten days, and such resolution shall operate to declare such franchise terminated and forfeited on the tenth day next following the passage thereof, and without further notice to grantee, unless grantee shall so comply within such ten-day period, such termination and forfeiture to become effective for all purposes one hundred eighty days thereafter.

(e) At any time after the effective date of such termination and forfeiture, and by operation of law, the city shall have the right, upon a finding by resolution of the Council that service is not being satisfactorily rendered to subscribers and without further notice or process, to enter and take possession of all properties, facilities, records and files of grantee, and to exercise all of the rights, privileges, powers, authorities and immunities of grantee, which are a part of the system of grantee, and to operate the system, and to provide the services thereof, in the same manner, and to the same extent, in all respects, as existed in grantee, and grantee shall not cause or permit any avoidance, hindrance, interference, or delay, in the exercise of such right by city.

(f) Within one hundred eighty days after such declaration of termination and forfeiture, and regardless of the exercise of any right of city hereunder, grantee may sell, remove, or (by means divesting grantee of all right, title, and interest) transfer the entire system of grantee. Upon any such sale or transfer in addition to any other rights hereunder or otherwise, city shall have a lien (next in order of preference to any liens or encumbrances existing of record on the date of such termination and forfeiture) against any and all proceeds thereof, and against the system of grantee, in the full amount of any loss, cost, expense or other financial detriment incurred by city in the exercise of any right hereunder, or by reason of such termination and forfeiture.

(g) In the event grantee shall fail or refuse to sell, remove or transfer the entire system of grantee, as hereinabove provided, and regardless of the exercise of any other right of city hereunder, then by operation of law, all of the properties, facilities, records, files, rights, privileges, powers, authorities, and immunities of grantee, which are part of the system of grantee, shall become the property of the city, subject to any and all valid liens or encumbrances of record, and the system shall belong to the city, upon demand therefor, such instruments as the City Attorney shall prescribe and approve, evidencing or affecting the ownership or control of any of the same in the city.

(h) In the event the system of grantee shall become the property of the city, as herein provided, then city may solicit and call for offers to purchase such system by bid process.

(i) Nothing herein shall be construed to obligate or require city to exercise any right of city hereunder, and city shall at no time be obligated or required to undertake or assume the ownership or operation of any system or to provide any service. (Added Ord. 79-174, § 1, eff. 11-30-79).

If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such holding or holdings shall not affect the validity of the remaining portions of this ordinance. The Council declares that it would have passed this ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid. (Added Ord. 79-174, § 1, eff. 11-30-79).

From and after the effective date of this article, absent written agreement with the city to the contrary, it shall be unlawful for any person to install, construct, operate or maintain any new utility or utility service or to enlarge or expand the service or the service area of an existing utility within all or a specific portion of the city or therein to alter or change the identity of the utility service provider, without the consent of the city and unless a franchise authorizing same has first been obtained pursuant to the provisions of this article, and unless such franchise is in full force and effect. (Added Ord. 79-174, § 1, eff. 11-30-79; Am. Ord. 84-8, § 2, eff. 1-17-84).