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
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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.
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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.
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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,
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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.
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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.
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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.
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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.
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This Ordinance shall become effective upon final passage.
INTRODUCED: October 22, 1990
By KENNETH HUNTER
Councilperson
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ATTEST:
APPROVED:
City Clerk Pre ident of the City Council
TJ 47.63 -7-