§ 19-303. Franchise agreement

(a) A nonexclusive franchise to install, construct, operate, and maintain any bench, transit shelter or other public transit service facility which incorporates advertising panels within the public rights-of-way of any street within all or a specific portion of the city may be granted by the city council to any person who or which offers to furnish and provide such facilities under and pursuant to the terms and provisions of this chapter.

(b) Nothing in the franchise shall be deemed to waive the requirements of this chapter and of the various codes and ordinances of the city regarding permits, fees to be paid or the manner of construction.

(c) Any franchise granted pursuant to this chapter shall be limited to those bus stop locations in the city specified in the franchise.

(d) The grant of a franchise by the city is subject to whatever right, interest or privilege others may have in the use and occupation of sidewalks, curbs or streets where the benches, shelters or other public transit service facilities are located.

(e) The rights granted under a franchise pursuant to this chapter are not exclusive, and during the term of a franchise, the city may grant to any other company or individual the rights to install benches, shelters or other public transit service facilities with or without advertising displays within the public right-of-way of the public streets and sidewalks within its corporate limits.

(f) Any grant of a franchise shall be conditioned on the franchise providing a performance bond, certificate of insurance and indemnification in a form and an amount approved by the city attorney or risk manager.

(g) Franchisee may apply for renewal of franchise in the same manner as an original application. Renewal applications shall be filed not less than ninety (90) nor more than one hundred eighty (180) days prior to expiration of the existing franchise.

(h) Any franchise granted under this chapter shall be a privilege to be held for the benefit of the public. Such franchise cannot in any event be sold, transferred, leased, assigned or disposed of, including but not limited to, by forced or voluntary sale, merger, consolidation, receivership or other means without the prior consent of the city, and then only under such conditions as the city may establish. Such consent as required by the city shall, however, not be unreasonably withheld.

(i) The franchisee shall promptly notify the city of any actual or proposed changes in, or transfer of, or acquisition by any other party of control of the franchisee. The word "control" as used in this subsection is not limited to major stockholders but includes actual working control in whatever manner exercised. A rebuttable presumption that a transfer of control has occurred shall arise upon the acquisition or accumulation by any person or group of persons of ten (10) per cent of the voting shares of the franchisee. Every change, transfer or acquisition of control of the franchisee shall make the franchise subject to cancellation unless and until the city shall have consented thereto, which consent will not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer or acquisition of control, the city may inquire into the qualification of the prospective controlling party, and the franchisee shall assist the city in any such inquiry.

(j) The city agrees that any financial institution having a pledge of the franchisee or its assets for the advancement of money for the construction and/or operation under the franchise shall have the right to notify the city that it or its designee, satisfactory to the city, will take control, operate and maintain the bus shelters and benches under such franchise, and subject to the terms of this chapter.

(k) The city reserves the right to revoke any franchise granted hereunder and rescind all rights and privileges associated with the franchise in the following circumstances, each of which shall represent a default and breach under this chapter and the franchise:

(1) If the franchisee defaults in the performance of any of its material obligations under this chapter or under such documents, contracts and other terms and provisions entered into by and between the city and the franchise;

(2) If the franchisee fails to provide or maintain in full force and effect the liability and indemnification coverages or the performance bonds as required in this chapter;

(3) If any court of competent jurisdiction determines that any material provision of the franchise documents, including this chapter, is invalid or unenforceable;

(4) If the franchisee ceases to provide services for any reason within the control of the franchisee. The franchisee shall not be declared at fault or be subject to any sanction under any provision of this chapter in any case in which performance of any such provision is prevented for reasons beyond the franchisee's control. A fault shall not be deemed to be beyond the franchisee's control if committed by a corporation or other business entity in which the franchisee holds a controlling interest, whether held directly or indirectly;

(5) If the franchisee attempts to evade any of the provisions of this chapter or the franchise agreement or practices any fraud or deceit upon the city;

(6) The franchise becomes insolvent, unable or unwilling to pay its debts, or is adjudged bankrupt.

(l) The following procedure applies prior to revocation of the franchise:

(1) The city may make written demand that the franchisee comply with any such requirement, limitation, term, condition, rule or regulation or correct any action deemed cause for revocation. If the failure, refusal or neglect of the franchisee continues for a period of thirty (30) days following such written demand, the city may place its request for termination of the franchise upon a regular city council meeting agenda. The city shall cause to be served upon such franchisee, at least ten (10) days prior to the date of such council meeting, a written notice of this intent to request such termination, and the time and place of the meeting.

(2) The council may hear any persons interested therein, and may determine, in its discretion, whether or not any failure, refusal or neglect by the franchisee was with just cause.

(3) If such failure, refusal or neglect by the franchisee was with just cause, the council may direct the franchisee to comply within such time and manner and upon such terms and conditions as the council determines.

(4) If the council determines such failure, refusal or neglect by the franchisee was without just cause, then the council may, by resolution, declare that the franchise of such franchisee shall be terminated and bond forfeited.

(m) In the event a franchise expires, is revoked, or otherwise terminated, the city may order the removal of the shelters and benches or require the original franchisee to maintain and operate the shelters and benches until a subsequent franchisee is selected.

(n) The termination and forfeiture of any franchise shall affect any of the rights of the city under the or any provision of law.

(Ord. No. 92-9, § 3, 5-4-92)