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HomeMy WebLinkAboutOrdinance No. 00-O6ORDINANCE NO. 00-06 AN ORDINANCE OF THE CITY OF AZUSA, CALIFORNIA, ADDING ARTICLE VIII TO CHAPTER 62 OF THE CITY OF AZUSA MUNICIPAL CODE PERTAINING TO BUS SHELTER AND BUS BENCH FRANCHISES FOR CITY SERVICE THE CITY COUNCIL OF THE CITY OF AZUSA DOES ORDAIN AS FOLLOWS: SECTION 1. Article VIII is hereby added to Chapter 62 of the Azusa Municipal Code to read as follows: "ARTICLE VIII. BUS SHELTER AND BUS BENCH FRANCHISES FOR CITY SERVICE Sec. 62-219. Intent. It is the intent of this article and any subsequent amendments thereto is to provide for and specify the means for the City to attain the best possible bus shelter and bus bench services for the City. Sec. 62-220. Bus shelter and bus bench franchise. The City Council may at its discretion, by the adoption of a resolution or ordinance, grant a non-exclusive franchise to a bus shelter and bus bench operator to provide bus shelter and bus bench services to the City under and pursuant to the provisions of this article. Sec. 62-221. Franchise terms and conditions. (a) All franchises granted to Franchisees pursuant to this article shall be non- exclusive and shall be for a term of no longer than fifteen (15) years as specified by the City Council in the resolution granting a franchise hereunder and in the franchise agreement between the City and the Franchisee. (b) No provision of this article shall be deemed to require restricting the number of franchises to one or any particular number, and no provision of this article shall be deemed to require the City Council to grant any franchise if the City Council determines that the grant of any such franchise is not in the best interest of the City and the public. (c) All bus shelter and bus bench operator franchises shall be subject to the terms and conditions specified in this article, as well any terms or conditions specified in the resolution granting the franchise and the franchise agreement. RVE'UMNUMV,559211 0 0 (d) In granting any bus shelter and bus bench operator franchise, the City Council may prescribe such other terms and conditions, not in conflict with this article, as are determined by the City Council to be in the best interest of the City and the public. Sec. 62-222. Transfer or assignment of franchise. A bus shelter and bus bench operator Franchisee shall not sell, transfer, lease, assign, sublet, mortgage or dispose of in whole or in part, either by forced or involuntary sale, or by ordinary sale, contract, consolidation or otherwise, the franchise or any rights or privileges therein granted, without the prior written consent of the City Council. The City. Council's approval of a transfer or assignment of a franchise granted pursuant to this article shall be conditioned upon the Franchisee's sale or disposal of all ownership rights in the franchised bus shelter and bus bench business. A bus shelter and bus bench operator Franchisee that desires to transfer or assign its franchise, because he or she intends to sell or dispose of all interests in the bus shelter and bus bench business that is franchised with the City, shall make a written request for a transfer or assignment of the franchise. The written request, a deposit of One Thousand Dollars ($1,000) and the proposed sale agreement or other document evidencing disposal of the franchised bus shelter and bus bench business shall be submitted to the Library and Community Services Department at least one hundred twenty (120) calendar days before the requested effective transfer or assignment date. The Library and Community Services Department shall investigate the proposed transferee or assignee and determine whether the transferee or assignee is qualified to serve as a bus shelter and bus bench operator Franchisee pursuant to the criteria and requirements set forth in this article. If the Library and Community Service Department determines that the proposed transferee or assignee is qualified to be a bus shelter and bus bench operator Franchisee, they shall recommend that the City Council approve the transfer or assignment. Upon completion of the City Council's approval or denial, the Library. and Community Services Department shall provide the bus shelter and bus bench operator Franchisee that requested the transfer or assignment with an accounting of the administrative and legal costs associated with the City's review of the Franchisee's request for a transfer or assignment of the franchise and shall offset the costs against the deposit herein submitted and for any remaining difference render an invoice or refund accordingly. Any attempt to sell, transfer, lease, assign or otherwise dispose of the franchise without the prior consent of the City Council shall be null and void. See. 62-223. Selection of Franchisees. Within ninety (90) calendar days of the date the Director of Library and Community Services determines that a bus shelter and bus bench operator Franchisee is needed to provide bus shelter and bus bench services to the City, the Director of Library and Community Services shall request that the Library and Community Services Department send out a notice of request for qualifications for a bus shelter and bus bench operator franchise. The request for qualifications shall be prepared by the Library and Community Services Department and shall be approved by the Director of Library and Community Services. The Library and Community Services Department shall select the most qualified bus shelter and bus bench operator, provided that the City receives at least one qualified RVPUBUAXM\559211 -2- E 0 proposal. The name of the most qualified proposer, if there is one, shall be forwarded to the Director of Library and Community Services and he or she shall recommend in writing to the City Council the name of the operator that he or she feels should be granted a franchise based on the objective criteria for awarding a franchise established by the Library and Community Services Department. In preparing requests for and evaluating the proposals received by the City, the Library and Community Services Department shall comply with any procedures and criteria adopted by the City Council in accordance with this article. Sec. 62-224. Conditions on franchises. Any bus shelter and bus bench operator that obtains a franchise pursuant to this article shall: (1) Construct, erect, install, maintain, clean and repair advertising bus shelters in locations specified by the City in the size, shape, style and material authorized in writing by the City Manager or his designee. The determination of whether, where and how many advertising bus shelters will be installed shall be at the City's sole and absolute discretion. (2) Construct, erect, install, maintain, clean and repair advertising and non - advertising bus benches within the City upon request of the City. The determination of whether, where and how many non -advertising bus benches will be installed shall be subject to the sole and absolute discretion of the City. The non -advertising bus benches shall be in the size, shape, style and material authorized in writing by the City Manager or his designee. The City may also choose to obtain such bus benches from a source other than Franchisee. If the City chooses to obtain one or more non -advertising bus benches from a source other than Franchisee, the Franchisee shall still be obligated to install, maintain, clean and repair such non -advertising bus benches. (3) Complete the construction, erection and installation of advertising bus shelters and advertising and non -advertising bus benches no later than ninety (90) days following first permit approval. (4) Furnish at its own expense, within ten (10) calendar days after written notice of approval of the Agreement by the City Council, a Performance Bond or other security acceptable to the City in the amount of $25,000.00 to guarantee the faithful performance by the Franchisee of all of the terms and conditions of this Agreement, which security shall remain in full force and effect during the full term of this Agreement. (5) Pay all fees, costs and permit charges regularly assessed by the City in any way related to the construction, erection, installation, maintenance, cleaning or repair of the advertising bus shelters and advertising and non -advertising bus benches. Franchisee further agrees that the shelters and benches shall be built in conformity with applicable building codes of the City and the specifications developed especially for bus shelters and bus benches. Franchisee shall be entitled to receive a master permit for any group of shelters and benches that are similar and continuous in construction and installation from site to site, as determined by the City pursuant to its sole and absolute discretion. RVPUB\MXM\559211 -3- 0 (6) Maintain, clean and repair the bus shelters and bus benches on a regular basis. If the City decides to supply the benches through another source, Franchisee shall only install, maintain and repair them. (7) Remove and/or transfer ownership of the bus shelters and bus benches at the end of the term of this franchise, as directed by the Library and Community Services Department, and pursuant to the provisions contained in the Franchise Agreement. (8) Agree to indemnify and hold harmless the City and City's elected officials, officers, agents, servants and employees against all claims, demands, costs, expenses, damages, liabilities, actions, causes of action and judgements of every kind and character to and against persons or property, including wrongful death, in any way related to, arising out of or connected with this Agreement or the installation, maintenance and repair of bus shelters and bus benches, sustained or claimed by any person, firm or corporation whomsoever and whatsoever. Further, Franchisee shall defend with counsel selected by City any such action or suit brought against City and/or City's elected officials, officers, agents, servants and employees, and shall pay all costs, attorneys' fees and expenses of whatsoever nature resulting therefrom and in connection therewith. Franchisee shall promptly pay the amount of any judgement orjudgements which may be entered in any such action or suit, including without limitation the payment of all consequential damages, attorneys fees and other related costs and expenses. Franchisee shall reimburse City and its elected officials, officers, agents, servants and employees for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Franchisee's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its elected officials, officers, agents, servants and employees. (9) Obtain and produce upon request, proof of public liability insurance in accordance with the amounts and limits established in the Franchise Agreement. (10) Pay to the City a franchise fee in accordance with this article. Sec. 62-225. Franchise fees. (a) Any bus shelter or bus bench operator granted a franchise pursuant to the provisions of this article shall pay to the City an amount equal to fifteen percent (15%) of the Franchisee's gross advertising revenues it receives for the rental of advertising space in and on each one of the advertising bus shelters, or a flat sum per advertising bus shelter per month as described in the Franchise Agreement, whichever amount is greater. (b) Franchise fee payments due to the City under this section shall be computed monthly. For the purpose of the franchise fee payment computation, the applicable accounting period shall be calendar month unless otherwise agreed to in writing by the City and the Franchisee. (c) The monthly franchise fee payments shall be due and payable on or before the twentieth (20th) day of the month immediately following the month for which the franchise fee is calculated. Each payment shall be accompanied by a brief report from the Franchisee showing the RVPUBU4XM%559211 -4- 0 0 basis for the computation and a written statement, signed under penalty of perjury by an officer of the Franchisee and, if applicable, which identifies in detail the. sources and amounts of gross advertising revenues received by the Franchisee during the month for which payment is made. No acceptance of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim that the City may have for further or additional sums payable under the provisions of this section. (d) If compensation is not paid when due, then Franchisee shall pay a late payment penalty, in an amount equal to ten percent (10%) of the compensation that was not timely paid, for each thirty (30) days that the payment is late. In addition, Franchisee shall pay interest on all fees which remain unpaid after thirty (30) days from the date due at the rate of ten percent (10%) per annum or the legal rate allowed, whichever is less. (e) The Franchisee or the Franchisee's designated representatives shall, upon five (5) days' written notice from the City, make available to the City or the Franchisee's designated representatives its accounting records for confidential inspection and audit. If the results of the audit show a franchise fee underpayment of greater than two percent (2%), the Franchisee will pay all costs associated with the audit in addition to any other amounts owed as shown by the audit. If the results of the audit show an underpayment of greater than ten percent (10%), the Franchisee will pay the cost of the audit plus fifty percent (50%) of the total error as a penalty in addition to any amount owed as shown by the audit. If the results of the audit show an underpayment of less than two percent (2%) or an overpayment, the City shall pay its own costs associated with the audit. Any underpayment shall result in a penalty equal to ten percent (10%) of the underpayment and the amount of such underpayment shall accrue interest at the rate of ten percent (10%) per annum, compounded daily from the date the underpayment should have been paid pursuant to subsection (c) above until the date the underpayment is paid. (f) In the event the results of the audit are disputed, the City may, at its sole discretion, elect to arbitrate the dispute. In the event the City elects to arbitrate, the City and the Franchisee shall each select an independent auditor at their own cost. The two auditors will agree upon the results of the audit. If the two independent auditors cannot agree upon the results of the audit, a third auditor will be selected by the two independent auditors to make a final determination. The determination of the third independent auditor will be final. (g) By accepting any franchise granted pursuant to this article, the Franchisee irrevocably waives the defenses of any statute of limitation, laches, waiver or other equitable doctrine of similar import or effect in any action brought by the City to recover any franchise fee, interest or penalties due under this section. (h) By accepting any franchise granted pursuant to this article, the Franchisee agrees that if it challenges the right of the City to collect the franchise fee provided by this section, any relief requested by Franchisee and awarded to it by virtue of such challenge shall be prospective only from and after the date of the filing of the initial pleading seeking such relief in a court of competent jurisdiction. The Franchisee hereby waives any and all claims or rights to collect back from the City, or obtain credit against future payment obligations, any amounts collected by the City RVPUBVAXM1559211 -5- prior to the filing of the initial pleading seeking such relief. In the event the Franchisee's challenge to any franchise fee payments should result in an initial judgment in its favor, Franchisee shall continue to make all franchise fee payments in accordance with this section pending an appeal by the City. In the event the court of appeal, or trial court if City elects not to appeal, determines that the City is not entitled to collect any or all of the franchise fees, the City shall refund to Franchisee those portions of the franchise fee which the court deems the City was not entitled to collect which were made subsequent to the filing of the initial action by Franchisee, exclusive of interest on such amount. (i) The City shall retain the right to impose alternative forms of taxes and/or fees in the event that the franchise fees provided for in this section are no longer assessable due to a subsequent change in federal, state or local law. See. 62-226. Franchise agreements. All franchises granted by the City Council pursuant to this article shall be memorialized in a written agreement between the Franchisee and the City. The written agreement ("Franchise Agreement") shall be in a form approved by the City Attorney. Each Franchise Agreement shall provide that the terms and conditions of each franchise as set forth in this article shall be incorporated by reference into the Franchise Agreement. Sec. 62-227. Revocation of Franchise. (a) The City reserves the right to revoke any franchise granted pursuant to this article and to rescind all rights and privileges associated with it if: (1) The Franchisee defaults in the performance of its material obligations under this article or the Franchise Agreement and fails to cure such default within ten (10) calendar days after receipt of written notice of the default and a reasonable opportunity to cure the default; or (2) If the Franchisee fails to provide or maintain in full force and effect the insurance coverage as required by this article and as set forth in the Franchise Agreement; or (3) If the Franchisee violates any order or ruling of any regulatory body having jurisdiction over the Franchisee relative to the Franchisee's bus shelter and bus bench business, unless such order or ruling is being contested by the Franchisee by appropriate proceedings conducted in good faith; or (4) If the Franchisee practices any fraud or deceit upon the City or upon persons to whom it provides bus shelter and bus bench service as determined by a court of law; or (5) If the Franchisee becomes insolvent, unable or unwilling to pay its debts and obligations, or is adjudged to be bankrupt. RVPUB\MXM\559211 -6- 0 0 The City's revocation of the Franchisee's franchise shall in no way affect any right of the City to pursue any remedy under the franchise or any other provision of law. (b) Prior to revoking a franchise granted under this article, City shall give the Franchisee notice and an opportunity to be heard on the matter, in accordance with the following procedures: (1) The City shall first notify the Franchisee ofthe violation in writing by personal delivery or registered or certified mail, and demand that the Franchisee cure the default within a reasonable time, which shall not be less than ten (10) days in the case of the Franchisee's failure to pay any sum or other amount due to the City under this article or the Franchisee's Franchise Agreement with the City and thirty (30) days in all other cases. If the Franchisee fails to correct the violation within the time prescribed or if the Franchisee fails to commence correction of the violation within the time prescribed, the City shall give the Franchisee fourteen (14) calendar days' written notice of a public hearing to be held before the City Council. The written notice shall specify the alleged violations supporting the recommendation for revocation of the franchise. (2) Prior to the public hearing, the City Council shall hear and consider all relevant evidence submitted by staff and the Franchisee or its agent or representative. If the City Council finds that the Franchisee has committed a material breach under the Franchise Agreement or this article and that the Franchisee has not corrected the violation or has not diligently commenced correction of the violation after receiving proper notice in accordance with this article, the City Council may revoke the franchise. SECTION 2. If any provision or clause of this Ordinance is held invalid, such invalidity shall not affect other provisions of this Ordinance which can be given effect without the invalid provision or application, and to this end, the provisions of this Ordinance are declared to be severable. SECTION 3. This Ordinance shall take effect thirty (30) days after the date of its adoption, and prior to the expiration of the fifteen (15) days from the passage thereof, the Ordinance or a summary of the Ordinance shall be published at least once in a newspaper of general circulation in the City of Azusa; and thereafter this Ordinance shall bp-iff'fhil force and effect. PASSED, APPROVED AND / 2000. Mayor RWORM XW59211 -7- 0 0 ATTEST: STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) ss. CITY OF AZUSA ) I, Adolph Solis, City Clerk of the City of Azusa, do hereby certify that the foregoing Ordinance No. 00-06 was duly introduced and placed upon its first reading at a regular meeting of the City Council on the 171 day of April • 2000, and that thereafter, said Ordinance was duly adopted and passed at a regular meeting of the City Council on the I" day, of May . 2000, by the following vote, to wit: AYES: COUNCILMEMBERS: HARDISON, STANFORD, ROCHA, BEEBE, MADRID NOES: NONE ABSENT: NONE APPROVED AS TO FORM: -- C y Attorney 0 AAdolpSo s, City Clerk