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HomeMy WebLinkAbout05640ORDINANCE NO. 5640 AN ORDINANCE IMPOSING UPON FRANCHISEES THE DUTY TO REIMBURSE THE CITY OF PUEBLO, A MUNICIPAL CORPORATION FOR COSTS INCURRED BY THE CITY IN INVESTIGATING, NEGOTIATING AND APPROVING FRANCHISES, AMENDMENTS THERETO AND PROPOSED TRANSFERS OF FRANCHISES WHEREAS, the City is empowered to grant and renew franchises to entities which propose to utilize streets, alleys, easements and other public ways or places of the City for their private benefit through the construction, placement, use or operation of facilities, pipes, wires, poles or other apparatus and objects of a fixed or permanent nature, and WHEREAS, the approval and award of an initial .franchise and any renewal franchise and the transfer or sale of a franchise is a valuable privilege not conferred on the public generally, and WHEREAS, negotiations and the approval of the terms and conditions of initial and renewal franchise agreements are complicated, require the expenditure of significant staff time and frequently require assistance from outside consultants and legal counsel, and WHEREAS, investigations of the reasonableness of the transfer or sale of a franchise, including hearings and presentations and the approval process of transfer or sale of a franchise are complicated, require the expenditure of significant staff time and frequently require assistance from outside consultants and legal counsel; and WHEREAS, such investigations, presentations, negotiations and approval processes constitute a significant cost to the City, and WHEREAS, the costs incurred by the City in such investiga- tion, presentation, negotiation and approval process are a direct result of the desire of the franchisee and franchise applicant to utilize the streets, alleys, easements and other public ways or places of the City for private benefit and profit, and WHEREAS, the City is empowered to require franchisees and applicants for franchise privileges to reimburse and hold the City harmless from the costs associated with the application, negotia- tion, investigation, presentation and approval processes, and WHEREAS, the City desires to assure that, to the extent possible, the City and its residents are not required to pay any costs incurred as a result of application, negotiating, investi- gating, presentation and approving or disapproving initial or renewal franchises and the transfer or sale of franchises, including all costs directly or indirectly related thereto, and WHEREAS, the amount of costs associated with franchise applications, negotiations, investigations, presentations and approval or disapproval processes are difficult to predict since franchise negotiations and franchise transfers are infrequent and may involve the resolution of a broad range of issues depending upon the nature of the franchise and authority sought; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 Any entity which proposes to utilize or continue utilizing City streets, alleys, easements, rights of ways and other public ways or places, through the construction, use, operation or placement of facilities, pipes, wires, poles or other objects and apparatus of a fixed or permanent nature, and any entity which proposes to transfer or sell its franchise, plant or system to or merge with another, or to transfer, lease or permit the use of any rights under a franchise to another (herein referred to as "transfer or sale of a franchise "), shall be required to give notice in writing to the City Manager of the City of Puebo of its intention and request to seek an initial award of a franchise, or the renewal of an existing franchise, or the transfer or sale of a franchise. (Said notice shall herein be referred to as an "Application For Franchise Authority" and the entity giving the notice shall be referred to as the "Applicant ".) The Application For Franchise Authority shall set forth the Applicant's request and the date by which the Applicant desires the franchise or the transfer or sale of a franchise to become effective and shall be delivered to the City Manager not less than four months prior to the date the applicant desires the franchise or renewal of cwm franchise or the transfer or sale of a franchise to become effective. SECTION 2 There is hereby imposed upon an Applicant the duty to reimburse and each Applicant shall reimburse the City for all costs and expenses incurred by the City in negotiating and approving an initial grant or any renewal of a franchise, in investigating the reasonableness of any transfer or sale of a franchise, and in the process of approving or disapproving a franchise or a transfer or sale of a franchise, including but not limited to, City staff time and expenses, expert and consulting fees and studies, legal fees, public hearings and elections, if any (the "City's Costs "). Each Applicant shall at the time of filing an Application For Franchise Authority post with the City a cash bond, irrevocable letter of credit, or other form of security acceptable to the Director of Finance as security for the payment of City's Costs (the "Security Bond "). The amount of the Security Bond shall be determined by the Director of Finance based upon nature and purpose of the request made in the Application For Franchise Authority and an estimate of City's Costs. The Security Bond shall not be less than Twenty -Five Thousand and No /100 Dollars if an election is not required, and not less than Fifty Thousand and No /100 Dollars if an election is required. The City Council may waive the requirements of a Security Bond, in whole or in part, in its sole discretion. Failure to post the required Security Bond may result in a denial of the request made in the Application For Franchise Authority. -3- nonmr�w� '� During franchise negotiations and during the investigation and approval or disapproval process for a franchise or authority to sell or transfer a franchise, the City shall maintain an account of all expenses incurred, including, but not limited to, staff time and expenses, consulting fees, legal fees and administrative and other expenses. SECTION 4 The City shall mail to the Applicant periodic billing statements for all City's Costs. Said statements shall be billed to the address designated by the Applicant in its Application For Franchise Authority. Said billing statements may be mailed to the Applicant at thirty day intervals and will itemize City's Costs to date of billing. Failure of the City to mail to Applicant a billing statement at any thirty -day interval shall not be deemed a waiver by the City of its right to reimbursement of all or any portion of the City's Costs. CPOrVTnX7 G Applicant shall pay all of City's Costs within thirty days of the date the City mails the billing statement. Failure to pay the City's Costs set forth in any billing statement within thirty days of mailing shall constitute a denial of Applicant's request made in the Application For Franchise Authority and forfeiture of that amount of Applicant's Security Bond equal to the City's Costs set forth in the billing statement. Applicant shall remain responsible for and shall reimburse all City's Costs that exceed the amount of the Security Bond. -4- SECTION 6 (a) If the Applicant disputes the reasonableness of City's Costs, it may pay under protest and seek review of the billing statement by filing a protest with the City Council within thirty days of the mailing of the billing statement. If such a protest is filed, the City Manager or his designee and the Applicant shall appear before the Director of Finance to hear the matter at a date specified. The Applicant shall be notified of the hearing date by certified mail. At the hearing, the Applicant may present evidence regarding the reasonableness of the charges. The Applicant shall bear the burden of proof at the hearing. The City Manager or his designee may respond to any allegations of unreasonableness. (b) The hearing shall be held for the sole purpose of determining the reasonableness of City's Costs. The Director of Finance is not authorized to consider any evidence challenging the City's decision to incur the costs charged. (c) At the hearing, evidence may be received in the form of documents, exhibits and witness testimony. The Director of Finance shall have all powers necessary to ensure the fair and efficient conduct of the hearing, but shall not be bound by the Colorado Rules of Evidence. The hearing shall be open to the public. (d) The Director of Finance may recommend approval of the charges or make alterations based upon the evidence presented. The City Council, at its next regularly scheduled meeting after the Director of Finance's recommendation, shall either approve, -5- reject or modify the recommendation. Any action of the City Council is final. Payment by the Applicant based upon the City Council's decision must be made within seven days of the City Council's decision. QV!"TTnM 7 Within thirty (30) days after full payment by the Applicant of all of the City's Costs, the City shall return the remaining portion, if any, of Applicant's Security Bond. QPOrrTnTI Q Neither the Applicant's nor the City's Costs shall be surcharged against or otherwise charged solely to the City or residents of the City. SECTION 9. Any Applicant or entity challenging the validity, legality or constitutionality of this Ordinance, if unsuccessful, shall reimburse the City for all costs incurred in such litigation, including reasonable expert witness and attorney fees. QV("TTnM T n If any section, portion or provision of this Ordinance is held to be invalid for any reason, the remaining sections, portions and provisions will be severable and enforceable. QPrrPTnnT 1 l This Ordinance shall become effective upon final passage. INTRODUCED: October 22, 1990 By KENNETH HUNTER Councilperson Er:. ATTEST: APPROVED: City Clerk Pre ident of the City Council TJ 47.63 -7-