Chapter 2.43 — GRANT OF PUBLIC UTILITY FRANCHISES

No person, firm or corporation shall exercise any franchise permit or privilege mentioned in this chapter, except insofar as he 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 Oakland, unless he, she or it shall have obtained a grant therefor in accordance with the provisions of this chapter and of the applicable provisions of the Charter. Nothing in this chapter 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. No. 13287, § 4, 1-6-2015)

Except insofar as he, she or it may be entitled to do so by direct authority of the Constitution of California, or of 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 Oakland, namely:

(1)

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, over, in, under or across any public place in the City of Oakland.

(2)

Construct, maintain or operate pipes, tubes or conduits along, upon, over, in, under or across any public place in the City of Oakland for the purpose of transmitting or distributing water, gas, steam, oil, air or other substance or utility.

(3)

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 Oakland for the purpose of transmitting or distributing, power, heat, electricity or electric energy, or for communication by telephone, telegraph, or other system.

(4)

Construct, maintain or operate any other plants or systems necessary or convenient for furnishing the City and its inhabitants with transportation, communication, water, light, power or other public utility service, upon, over, in, across, or along any public place in the City of Oakland.

The term "public place" as used in this chapter shall be deemed to include any street, lane, alley, court or other public place in the City.

Nothing in this chapter shall be construed 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 of the City.

Nor shall anything in this chapter be construed to invalidate any lawful franchise heretofore granted, nor necessitate the obtaining of a new franchise for a use for which a franchise holder shall have a valid unexpired franchise.

Notwithstanding the above, this chapter shall not apply to (1) leases or licenses of City public space, including without limitation telecommunications leases and licenses (said leases and licenses are governed by Chapter 2.42), (2) state video service franchises (said franchises are governed by Chapter 5.17), or (3) any franchise in which the City's authority to grant or regulate the franchise is preempted by state or federal law.

(Ord. No. 13287, § 4, 1-6-2015)

Pursuant to its constitutional, charter and statutory authority, the Council of the City of Oakland may grant franchises and privileges for all of the purposes enumerated in Sections 2.43.010 and 2.43.020 of this chapter 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 Charter, of this chapter and of any supplementary ordinances provided, and may in such franchises impose such other and additional terms and conditions not in conflict with said Charter or ordinances, whether governmental or contractual in character, as in the judgment of said Council are in the public interest.

(Ord. No. 13287, § 4, 1-6-2015)

No franchise shall be granted without reserving to the City adequate consideration for the privilege conferred.

No franchise shall be deemed to grant the right to install public utility facilities in any public park or playground unless the franchise ordinance expressly so provides.

(Ord. No. 13287, § 4, 1-6-2015)

An applicant for any franchise above mentioned shall file with the 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 shall be desired, (c) the amounts and/or percentages, if any, applicant, if granted the franchise, will 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.

Franchise applications shall set forth such other information as the Council may require.

(Ord. No. 13287, § 4, 1-6-2015)

Every application for a franchise, permit or privilege shall be accompanied by a cash deposit or not less than five hundred dollars ($500.00), or by a certified check for said amount, payable to the City. Treasurer and certified by some responsible bank in the City of Oakland as a fund out of which to pay all expenses connected with such application. The deposit of the applicant shall be retained until the acceptance of the franchise and the filling of any bond or other security required or until the Council determines not to grant the franchise, whereupon the remainder, if any, of the five hundred dollars ($500.00) after the payment therefrom of all expensed incurred by the City in connection with the advertising, engineering, clerical work and awarding of such franchise privilege or permit, shall be returned.

(Ord. No. 13287, § 4, 1-6-2015)

The City Council may grant a franchise by ordinance without taking bids or may, in its discretion, advertise for bids for the sale of a franchise after notice inviting bids therefore upon a basis, not in conflict with the provisions of the Charter, 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.

(Ord. No. 13287, § 4, 1-6-2015)

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.

The franchise may also provide for the changing of such routes or for alternate routes, provided such change or alternate routes shall be subject to the lawful orders of said Public Utilities Commission.

(Ord. No. 13287, § 4, 1-6-2015)

The Council may require the grantee of any franchise to provide such bond or other security as it deems the public interest requires.

(Ord. No. 13287, § 4, 1-6-2015)

Every application made to the Council for a franchise, privilege or permit mentioned in this Chapter shall before any action is taken thereon, be referred by the Council to the City Administrator and the City Attorney for their respective recommendations.

Before making his or her recommendation to the Council, the City Administrator shall obtain the recommendations of the Superintendent of Streets, the Planning Engineer and the Traffic Engineer.

If, in the judgment of the City Administrator, the franchise permit or privilege applied for should not be advertised for sale or granted, he or she shall so report stating the reasons therefor; and if, in his or her judgment, such franchise, permit or privilege should be granted, he or she shall recommend the terms and conditions upon which the same should be granted.

(Ord. No. 13287, § 4, 1-6-2015)

Upon receipt of the City Administrator's recommendation, the Council may pass a resolution declaring its intention to gram the franchise, 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 Council and be heard thereon, and directing the City Clerk to publish said notice in the official newspaper 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 notices shall state the name of the applicant, the character of the franchise, its term, whether definite or indeterminate, the amounts and or percentages, if any, grantee shall pay to the City during the life of such franchise, any limitations as to time, place or type of service proposed, the amount and character of any bond or other security required, together with an outline of the other major provisions of the proposed franchise.

(Ord. No. 13287, § 4, 1-6-2015)

At any time not later than the hour set for the hearing of objections, any person interested may make 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 the hearing objections the Council shall proceed to hear and pass upon all protest so made and its decision shall be final and conclusive. The 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 legislative body to be insufficient or shall have been overruled or denied, the Council may grant such franchise. Such franchise shall be granted by ordinance adopted in the manner prescribed by the Charter for the enactment of franchise ordinances.

(Ord. No. 13287, § 4, 1-6-2015)

No franchise, permit or privilege granted by the City shall be, in whole or in part, leased, assigned or otherwise disposed of, or transferred without the express consent of the City given by ordinance, and no deadlines with any one on the part of the City to require the performance of any act or payment or any

compensation of any one shall be deemed to operate as such consent; provided that nothing herein shall he construed to prevent the grantee from the City of such franchise, permit or privilege from including it in a mortgage or trust deed without such express consent.

The grantee of any franchise granted pursuant hereto 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 said Council 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, (b) 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, (c) indemnify and hold harmless the City and its officers and employees from any and all liability for damages proximately resulting from any operations under such franchise, and (d) make such reports and permit such examination of its records as the franchise may require.

Nothing in this chapter shall be construed as prohibiting the Council from including in any ordinance granting any franchise, permit, or privilege such other conditions or requirements not inconsistent with the provisions of the Charter as the Council may desire to have so inserted.

(Ord. No. 13287, § 4, 1-6-2015)

The grantee of any franchise granted under this chapter 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 Council.

(Ord. No. 13287, § 4, 1-6-2015)

When the Council shall find that an emergency exists and that public convenience and necessity require it, a special permit may be granted to an applicant for a franchise under this chapter 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 under this chapter is possible.

Such special permits shall only be granted to an applicant for a franchise under this chapter, and after the filing of the application for a franchise as in this chapter provided.

An application for a special permit shall be filed in writing with the Council setting forth such information as will permit action thereon. Reference in said application may be made to the application for a franchise for a description of the proposed extension, alteration or other change in existing facilities.

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 Superintendent of Streets.

The Council may require, as a condition to the granting of such special permits, that a bond of a kind and in art amount determined by it 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.

Applications for permits under this section shall be referred to the City Attorney and the City Administrator in the manner provided in Section 2.43.100 hereof.

(Ord. No. 13287, § 4, 1-6-2015)